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Corurll Lam School Library
Marshall Equity Collection
Gift of
£. I. Marshall, OG. B. rag
wi
AN INDEX
Go all the Reportrd Cases in the Courts of Equity
IN IRELAND,

FROM T.T. 1838 TO H. T. 1867.

V¥Uue TL.
Ressrs

PRINTED BY DAVID CORBET, 11 UPPER ORMOND QUAY, DUBLIN.
PREFACH.

IN presenting the following work to the Members
of the Legal Profession, we desire to bespeak their
indulgence for any deficiencies which they may. per-
ceive in it. As to the different heads of Equity under
which the several cases should be indexed, a variety
of opinions may naturally be entertained, according to
the views taken of the cases by different legal men.
Here the plan of arrangement adopted in the last
edition of Mr. Chitty’s Equity Index, being the one
most familiar to Equity Practitioners, has been fol-
lowed, with such additions and alterations as were
required for some branches of the law peculiar to
Ireland — such as Landed Estates Court; Judgment
Mortgages ; Probate Court; Renewable Leases, &e.
The method adopted by Mr. Chitty, of inserting
the cases under each heading, in the inverse order of
their dates, has been departed from, inasmuch as they
have been arranged in the present work in their true
chronological order; which not only is the most na-

tural, but also renders it more easy to trace .the
2

progress of any principle of Equity down to its latest
development. |

We have commenced with the cases reported in
the first volume of the Irish Equity Reports, and have
carefully abstracted every reported case subsequently
decided in Ireland, in the Bankruptcy and Probate
Courts, the Landed Estates Court, and the several
other Courts of Equity, down to H. T. 1867, whether
it appeared in the authorised or in the other Reports.
We have also inserted the decisions of the House of
Lords, in all reported cases of appeals from decrees
pronounced in the Irish Equity Courts. This addition
will be found particularly valuable, as in some of
these cases there are no reports of the proceedings in
the Courts below: and we hope that the utility of the
work will be much increased by our having prefixed,
to each heading of Equity and Practice, a reference
to the principal Statutes which affect its subject-
matter. We have added a complete Table of Cases to
the entire Index.

As the first edition of Messrs. O'Donnell § Brady's
Equity Index comprised the cases down to the period
at which the present Index commences, we deemed it
advisable not to render this work more cumbersome
and expensive by including them; but since many of
the Equity cases previously decided were not contained

therein, we have included all such in this work ; so that
3

the first edition of that Index will, with the present
work, form a complete Index up to the end of the
Irish Chancery Reports and of the Irish Jurist, New

Series.

If, by the labour and anxious care expended in
the endeavour to make the work perfect, we shall
have contributed in any considerable degree to lighten
the labours and facilitate the duties of our brethren
at the Equity Bar, we hope that they will look with
indulgence upon the result of our exertions, and not
judge too severely if, in their opinion, it might, in

some particulars, have been better executed.

October 1st, 1868.
Hayes

H. & J.
Jon.

8. & 8...
Beat.

Dr. & Wal.
Dr. & War.

Dr. R. ¢. Sug.

I. E. R.
Jon. & L.
I. C. R.

Dr. R. t. Nap.

I. Jur: ...

I. Jur. N.S.
Cl. & BF.

H. L. Cas.

Vist of Abbrebrations,

 

Hayes’s Rep.

Hayes & Jones’s Reports.
Jones’s Reports.

Sausse & Scully’s Reports.
Beatty’s Reports.

Drury & Walsh.

Drury & Warren.

Drury’s Reports tempore Sugden.
Irish Equity Reports.

Jones & Latouche’s Reports.
Irish Chancery Reports.
Drury’s Reports tempore Napier.
Trish Jurist (Old Series).

Irish Jurist, New Series.

Clark & Finnely’s Reports.
House of Lords Reports.
NAMES OF CASKHES.

 

*,* The Figures in Parentheses refer to the Cases so numbered in each Page.

 

 

A.B.,In re 67(11), 1206 8), 1226(3), 1248(10
A Summoned Trader, R g : > BI (2) }

 

 

 

 

A. & B., Arranging Traders, Re 109 5)
Abbott v A. : 709 (7)
@ Geraghty 113 (5), 850 (13),

888 (16), 1825 (1)

v Geraghty 91 (4), 940 (3)

v Geraghty eae 648 (1)

—— & Moore, In re 846 (11), 1210 (2)
v Stratton fae 39 (3), 178 (4),

182 (6), 484 (5), 445 (9), 636 (1),

764 (2), 1079 (15), “1141 (2);

1220 (8), 1242 (9)
Abercorn v Bristowe
Abrahall v Hamilton ... 332 (8), 1275 (2)
Acheson v Fair 525 (9), 549 (3), 550 (1),
560 (8), 1175 (5), 1296 (ay 1363 (4),
1875 (6), 1397 (
v Hodges 72 w 440 (3), 969 (5),
984 (1), 1051 (7), 1059 (7), 1117 (2)
Adair v Johnson 1261 (9)

296 (4), 680 (5)

 

 

 

 

Adams v A, 306 (2), 616 (7), 728 (5)
v Gamble 885 (2, 4), 387 (8)
v Horne 881 (9), 1064 (10)
v Quinn 1047 (3)

Adamson v Jameson 111 (10), 784 (3)
Adjudication, In re a disputed 83 (5), 90 (1)
Admission of Attorneys, In re 1024 (8),
1206 (1)

365 (3), 860 (1)
695 2), ae ie

Agar v Phaire ane
Agnew v Connell

 

 

 

 

 

 

Inre ... sti 02 (1)

Ahearne v Harney a 1119. (9)

v Hogan 222 es 352 ee ee Q)

Inre ... 36 (10)

v M‘Guire 1086 (7)

v O'Callaghan 1174 (2)

Ahern v Daly «» 718 10)

Aicken v Macklin 453 (2), 663 (4),

1820 (8)

Airey,Inre ... 1039 (10

Alcock v Bernard a «. 1069 (3
Aldborough, Earl of, In re the

Estate of ... fee 512 (2)

Alder v Ward . 532 (5), 1128 (4, 6)

v Ward 44 (3), 148 (3), 154 (2),

498 B, 526 (1), 580 @)
Aldworth v Allen ees sa 535 (4)
Alexander v Abernethy «1026 (5)
v Abernethy 1025 (4), 1031 (6)

 

 

 

 

vA. 2883 (5), 1283 (3), 1298 (3)
v Crosbie 622 (3), 1103 (i "1104 (2),

1314 (5)
v Crosbie 114 (2), 171 (5)

 

 

Alexander v Crosbie

 

. .. 1097
60 0), 509 (6), eres }

 

In re
Alexanders, In re 821 (2), 326 my
»v Molloy vw.  1029 (15
Alford v M‘Causland .. 56 (5)
Alkerv A... 138 (8), 451 (6), 842 (14)

‘Allen vy Aldworth 351 (1), 528(4), 534 (3)

 

 

 

 

——vA. 110 (4), 182 (5), 194 (1), 277 (3),
290 (8), 401 (8), 989 (9)

—— v Annesley 936 (3), 947 (2)
v Donnelly “341 (6), 466 2), 979 £8

v Donnelly sits 341 (7), 918 3

v Hacket 816 (5), 936 (5), 946 (1
vJervoise 474 (2), 1048 (9), Tee

v M‘Kenna 1032 (8

 

Alleyne vA. 212 (2), 217 (3), 270 (6), oe }
616 oO} 653 (5), 1198 (4), 1271 (2
1393
——— v Darcy o 128 (1), 176 (6), 819 (2),
408 (3), 1211 (8), 1232 (12), 1293 (2
Allman v Crofts , a @) ae dy
Allowa v A. 705 (5 TAL is 750 5 a >
On dn ), 766 (2,
Alston v Alcock,  ... 395 (12), gies C1, 10.
Alvenv Bond 856 (8), 1074 6), 1074 (10),
1096 (10), 1114 (3, 4
Anderson v A. se 1075 (8), 1096 (13
v Barry 1005 (8), 1098 (3), a (8)
——— v Cassidy 46 (6)

 

 

 

v Dowling ‘682 (11), “691 (4), 807 (1),

841 (16), 972 (11), 984 (10)

—— v Heron ; 751 (3),
——v Higgins 24 (8), 1310 (2), 1331(9)
——vMulvany ... 364 (9), 1406 (16)
——v O'Connor ... 821 (1), 859 (7)
v Pratt 680 (10), 685 (1). 725 (12),

958 (7), 988 (5
v Preston 785 (12), 1041 (403

 

 

v The L. & En. Ry. Co.... 696 (6
v The N.& W. cae Co. 976 (2), 1165 (6 6)
Andrews, In re . 207 (3), 375 (7), 378 or
Angell v Bryan ae 183 (1), 1140 (3)
Anon. 962 (1), 978 ©, 1076 (13), 1081 (5),
1100 (8), 1109 8

1016 a, 1020 (6
1022 (8)
930 fas
1060 (1), 1119 0)
880 (12), 1067 ie

1095 5), 1270 (6), ee 11

094 (12
‘837 (6), iat (s

777 (10), 1068 (12)

b

 

TTT |
—
=

Anon. 112 (1), lo19 a5)
‘417 (5), 1108 7
632 (1), 958 ae

361 ( Ds 735 3 038
‘i &)

81 (4
129 (2), 652 (2), 1208 ned
"338 (,, a (6), 777 (8), 1064 (2
88 (8), 609 (1), 613 (2, 4)
930 One 1063 oe
949 (5)

980

1058 (13), arr (4,5

073 (2
1073 eat 1094 (8), 1085 a st
1088 (2)
1195 (11)
Archbishop of Dublin v Trimleston 259 (2),
476 (7), 593 (9), 1164 (1)

——— v Trimleston 235 (6), 260 (6), 491 ic

587 (10), 601 (8), 706 (4), 718 (10
725 (11), 937 (4), 941 (9), 991 (2)
——— v Trimleston 137 (1), 707 (2), 835 (6),
894 (9), 900 (2), 1071 (2), 1282 (7)
v Trimleston 838 (5), 835 (5) 900 (2)

Archbold v Commrs. Ch. D. & B. for Ire-

land 257 ene 726 (b, § 920 (10), 1801 (6)

JEEP

 

 

 

 

 

v Rice 893 (4), 945 (5)

v Scully 7 “989 (7), 935 (7)
—-— v Scully . 570 (4), 590 (3), 933 (6)

v Scully 485 (8), 509 (7), 528(1), at (5)
Archer v Leonard . 04 (6)

vRorke 381 (4), 385 (9), ios Ae)
Ardill v Savage... ae
Armit v Bredin

"164 (4), 309 qa
Armitage v Forbes ... a 1078 i
v Palmer... 1051 (2), 1118 (7
Armitstead, In re 949(4), 1017 (9), 1033 (14)
Armstrong v A. 821 (13), 930 (8), ae (4),

6 (4)

 

 

 

v Bannon 844 (8), 875 (8)
v Courtenay 42 (5), 155 (3), 925 (1)
——., Ex parte 505 (5), 547 (©) 1256 :
——,, In re : 95
———vJdessop.. ‘535 (8), 1239 08)
——--v Millar 557 (4), a ah 1346 (1),
52 (4), 1356 (2)
——— v Moore 1041 (12)

 

v Pepper 1261 (6)
Armstrong v } Pollock 847 (D, 883 (5), 1218 (3)

 

 

 

v The Wat. & Lim. Ry. Co. 978 (8),

1165 (5)
, In the Goods of 1039 (8)
v Southwell (1085 (15), ie (6)
v West 79 (3)

 

Arnold v Ennis 435 (7); 1356 (4), 1876 (2)

Arranging Trader, A, Re 83 (6), 86 C10y
106 (10), 109 (9)

Arranging Traders, A.& B. ... 109 (5)

 

Arthur v A. 159 (7), 380 (7), 381 (7) 883 (2)

Arthure v Dillon...
Ashe, In re 27 2), 30 (6) 118 i
——, Inre 871 (14)
——, In re “487 (2), a te
v Dwyer 7 (6)
Ashe’s Beecte: In re.. 787 (5)
v Lowe 1192 (1)

 

 

[NAMES OF CASES.]

—v Pollock
Ashworth v Browne 342 (i; ‘966 Q), ah .
Assignee of Browne, Kirwan, In re

 

Ashton v Adamson 55 (5), 1368 (2), mea
1

 

 

 

of Bateman, ‘In re 309 1)

of Fuller, Inre 995 a

of Roberts, In re 1115 (5
Assignees of Ferrall, In re 460 (7

of Frewen, Inre 884 (5), 998 (7)
Atkins v Delmege 355 (2), 644 (7), 896 (11),
1097 ®) 1212 (1), 1317 (3)

 

 

 

 

 

 

 

v Short 183 (7)
Atkinson v Ball 465 (12) 812 (1)

v Caldwell ws 792 (Al 3

v Lennon 90 (7), 110 te

v Lopdell we: 1291 ¢

» Wright 360 (2), 966 i

v Watson 793 (1), 1119 (7)

Att.-Gen. v Ashe 246 (4), 940 (6),
1048 (11), 1257 (4)
v Ball wu. : 146 (3), 364 (8),

520 (1), 951 (4), 1123 (7), 1 lop o)

— v Carlisle
v Conroy 669. (3), 671 (), 0k Oy
962 (11), 1334 (4)
v The Corpn. of Belfast 148 (5),
787 (4), 847 (3)
———v The Corpn. of Cashel 4 (2), 9 (4),
126 (6), 143 (4), 146 (2), 147 (4),
511 (3), 607 (6), 704 (105, 859 (9),
917 (7), 939 (10), 941 (4), 990 (109,
1265 (2), 1827 (6)
— v The Corpn. of Dublin 126 (7), 145 (2),
147 [ 147 (5), 453 (5), 848 (13),
962 e 963 (9), 976 (3), 990 (8)
v The K. & Q. College of Phy-
sicians 72 (2), 147 (6), 709 (10)
v The Corpn. of Limerick 126 (1, 3),
699 (8), 704 (8), 918 (3)
ws 1270 (5), 1384 (6)
v Drummond 205 (8), 234 (5), 942 (9),
1265 (3), 1289 (9)
v Drummond _ 681 (7), 837 (4), 850(4),
859 (10), 864 (11), 865 (1), 887 (8),

 

 

 

 

v Dillon

895
——v peat 281 (2), 241 (2), ee (2)
——— vFitzgerald. 88 (9)
— v Flood 120 (4, 143 (3), 1934 (6),
1838 (3), 1395 (1)
——— v Galway, Mayor of ea 125 (6)
— 126 (4), 235 (1), 245 (8),
1228 (9), 1233 (10)
——vlLeHunte 468(7), 705 (1), 798 (4),
866 (6), 921 (6), 934 (11), 1224 (6)
—— Madden 121 (3), 122(3), 1006 (12),
1009 (5), 1285 (1), 1895 (2)

v Hutton

v Marrett 146 (4), 520 (2), 1222 (11),
1224 (1), 1327 (9)
v Persse 578 (8), 582 (5), 593 (8),

1233 (11

——— v Redmond . 860 (1
——— v Riggs 963 (1), 978 (7)

v Tottenham

 

121 (1, 6); 1234 (3
v Lord Trimleston ... 705 (7
Attorneys, the Admission of, In re 1206 (1),
1024 (8)

Auchinleck v The Bishop of Ossory 243 (6),
1407 (17)

Auld v Stewart wig 325 (9), 1030 (4)
Austin v Chambers 675 (4), 916 (5), 921 (11),
1204 (2), 1207 (4), 1212 (9)

 
[NAMES OF CASES.]

Austin » Chambers 257 (1), 808 (12), 845 (4),

850 (5), 1214 (1), 1284 (3)
Averal v Wade sive sit 1087 (2)
Averall v Wade 329 (5), 337 (5), 453 (3),
869 (1), 902 (4), 1076 (12)
Aylward’s Estate, In re 738 (2), 1200 (2)

 

 

B.

B—, In re 610 (4)
B—, In re 610 (7)
Bagge v 834 (10)

v Barron 1030 (8)
Bagnall v B. 697 (8)
Bagnall v Horn Sa 938 (8)
Bagnalstown & Wex. Ry Co., ‘Inre 77 (3),

84 (6), 255 (3), 462 (7), 1164 (5),

1236 (6)
Bagnalstown Ry. Co., In re 462 (6), 1164 (6),
1245 (4), 1408 (7)

 

 

 

 

Bailey v Daniell 1210 (4)
Bailie v B. 1076 (11)
Baker v Allen 30 ves 1304 (6)
vM‘Dermott ... 800 (9), 958 (8)
v Pettigrue . 79 (2), 172 (8) 180 (6),
1065 (12)
Bakers, In re 394 , 395 8), 1009 (2)
Baldwin v B. . 26 (6), 28 (7)
vB. . 285 (6), 421 (9

vB. “265 (3), 285 (7), 412

vB. . 602 (4), 781

 

v Belcher 76(7),99(7), 364 AS41808)
449 (14), 455(9), 1139 (6,8), 1228 (3)

 

 

 

v Roche . 282 (5), 376 (8), 443 (6),

444 (25, 740 (5

Balfe v Blake 508 ®) 1075 (14, 15
v Colgan 1279 1
— v Lord . 621 (5), 682 (9), 633 (7),

637 (10), 957 (1)
v Lynch ee sis 1063 (11
v Redington ... "827 (9), 878 (0
Balfe’s Estate, In re 812 (3), 822 (8), 997
Balfour v Macneill .. 1240 (2), 1813
Ballv B. 150 (5), 178 10), 403 (2), 407

 

 

:
o|

 

 

 

 

450 (2), 1296 (7), 1862

v Flanagan : 1050

v O’Grady 692

v Lord Riversdale 629 (7), 1153 6

v West ‘ 1085 (16
Balls, In re - ‘369 (6), 1204 (4)
Ballinasloe Union, The Guardians

of v Lynch 810 (4)

Banbridge Extension Ry., The, Re 77 (2),
84 (6), 1164 (7)
Banfield v O’Shaughnessy 362 (15), 687 (2),
726 (6), 817 (9)
Bank of Ireland, The, v Evans’s Chari-
ties... ..122 (7), 213 (2), 1148 (1)
Bank of Ireland, The, v O'Malley 709 (1),
862 (6), 870 (12), 877 ay
Bank, The Fife, Ex parte , 08 (4)
Banking Co., Ex parte The Hib. Ji vite
stock ... 97 (3), 177 (1)
Bank, The Tipperary ‘Joint- stock, Ex
parte Ginger... 140 2), 353 (8),
441 (3), 1133 (3)
Bank, The Tipperary Joint-stock, v
Scully .. ..141 (2), 442 Q), 657 (2)
Bankrupt Court Commissioners, In re 84 (
1125 (8)
Banks, Re, Ex parte Ir. Consols Min. Co.
140 (1), 1405 (4)

 

iii

Bannantyne v B.
Bannantyne v Barrington...
Bannatyne v Barrington 475 (5), 1996 e13
v Barrington . 51 (1), 202 (1)
Barber v Roe 306 (5), 310 (6), 899 (1),
1054 (3), 1062 oi }
Bardon v B. 780 (4), 731
Barker v Morton. 494 (7)
Barlow, Ex parte “B04 @), ‘540 (5), bis es
Barr, In re (8)
Barret v Bermingham. 181 (4), 406 (2), se (7),
597 (6), 861 (2), 869 (2), 875 (9),
891 (7), 1011 (10), 1012 (6),
1098 (8), 1116 (4), 1319 (2)
Barrett v Birmingham 887 (1), 890 (6)
v Connellan ... 795 (2), 1089 (7)

948 (9), 951 (5
76 (1)

 

 

 

 

 

,Inre 287 (7), 288 (6), Bn oS
v Merrick bas 1062 (12)
v Mitchell 1054 (11), 1059 (8)
Barretts Minors, In re Colthurst, Ex
parte wes aes 833 (8)
Barrington v B. 176 (1), 818 (5
v Grady 176 (1), 818 69

 

Barron v B. 212 (7), 279 (5)
vB. 755 (3), 922 (10), 1195 (1), 1221 (2)
-v Constabile 201 (4), 745 (8) 940 eee

 

 

 

 

1184
v O’Brien 881 (16), 1090 £3
v Power 1026 (9)
Barry v B. 114 (9), 1063 (3), 1081 (2)

 

v Burns 32 (5), 47 (4), 679 (8), 1833 (2
v Cronin 958 (9

 

 

 

 

 

 

 

 

v Harding 233 (4), 329 (6), 332 (5
336 (3), 549 (4), 550 (2), 557 (5),
635 (7), 1875 ee 1406 coe

v Harrison ei) 87 (4)
v Harrison a7 2 (3)
—Inre ‘402 ate i 1007 (6), ae (3)
vM‘Carthy... 21 (16)

v Mulligan ies “Tode (7)

vO’ ee 29 (4), 353 (1), 1306 (7)
——, Re ea 89 (9), 404 (1)
v Stawell ‘688 (2), 776 (1), 778 (7),
832.(8, 9), 987 (6)
v Stawell 627 (3, 10)

 

v Wilkinson aioe 186 (5), 1067 (8)
v Wilkinson 163 (10), 186 (3), 281 (4),
419 (2), 861 (8), 1066 (9), 1248 (6)
Bartlett v O’Donnell 678
Bartley v Davis —805 (15), 813 (4, § e19 Ch

Barton v Lord Downes _ 884 (10), 1098 Cy
1099 (6), 1102 (4), 1313 (5), 1819 (4)

 

 

 

 

 

v Hassard 320 (7), 323 (10), 563 (4),

568 (6), 1286 (5)

——— v Major dies 782 (1), 9380 (7)
v Sampson 785 (18), 789 (1), 921 (5)

v Sampson ... 686 (1), 1216 (4)

v Sampson 802 (6), 819 (1, 2),

 

926 (10), 939 (1)

Bateman, The Assignee of, In re 999 (8)
vB. a 882 (7)

v M‘Elligott, “415 (2), 1134 (7)
v Ramsay... 449 (4), 974 (6)
v Roden, The Earl of 299 (3), 307 (6),
311 (4), 1349 (6), 1887 (1), 1389 (1)

 

 

 

 

8),-| Batt v Cuthbertson 378 (3), 382 (6), 955 (2),

1031 (3
Battersby v Homan 52 (2), 246 (3), 260 (ay
1143 (2)
iv

Battersby v Rochfort 54 (1), 75 (3), 225 (3),
257 (3), 404 (8), 1140 (4), 1189 (2),

 

1222 (7)
v Rochfort ... 91 (90)
—vRochfort 444 (3), 587 (4), 1241 (2

 

Baxter v Combe 33 a9 663 es 2), =e) (3

 

 

 

[NAMES OF CASES.]

Bennett v Robinson ae 1298 (1)
Beresford v Chambers 115 (2), 455 (5)
Bermingham v Burke 165 (1), 585 (7), 598 (9),

899 (6), 1274 (6)
Bernard v Bond 472 (10), 814 (10), on Be

 

 

 

 

vCombe... 63 (2) | ———, Ex parte 251 (7), 468 (5), "750 @),

vCombe.. 962 (7) 1023 (6), 1298 (3)

Baylee v Browne 360 (4), ‘446 (3), 599 (6), |} ———— v Meara ‘ 150 (3), 515 (6)

684 (14), 699 (4), 1225 (1), 1242 (18) |} ——— v O’Connor 178 (8), 219 (7), 828 (9)

Bayley v Quin 557 (1), 1368 (5), 1885 (4)|_v Sadlier 91 (2), 627 (6), 355 5 (15

Bayley’s Estate, In re a» 214 (5), 278 (1),

380 (3), 1330 (4) | Berry v B. 239 (8), 889 (4), oe 18

Bayly v Cumming —_ 361 (4), 682 (¥), 701 (7), » Hillas 28 (2), 1046 w

706 (2), 914 (2), 1277 (5) | Bessonet v Waller “8 (6), 1080 (5

Bayly’s Estate,Inre 574 (7, 10), 1219 (1), v Robins... : 1114 (2)

1220 (2) | Bestall v Bunbury 99 (5), 382 (8), 385 (5, 6),

Bayly v Wilkins 350 (3), 1214 (6 388 (5), 406 (8), 432 (8), 433 (1)

Beale v Billing 679 9 (10) Betham v Mitchell 634 (5), 870 (10), 906 (2)
Beahan v Mills 1024 (1) | Betty v The Ecclesiastical Commis-

Beale, In re 72 (3), 80 (2), 81 ® 82 (9), sioners.. 247 (3)

84 (4), 147 (3) » Elliott : “216 (4), 287 (6)

Beamish v Phaire 450 (3), 1057 a, Xo70 (8), | Bevan v White 947 (11), 950 (8); 951 (1),

1141 (7) 1079 (14), 1300 (3), 1364 (2)

v Vignoles 39 (6) v White 278 (7)

Beasley v Hourigan ... 1393 (2) | Beytagh v Concannon 1009 (9), 1080 (1)

Beavan v Masse. 783 (3) | Biddulph v Fitzgerald : 912 (3)

Beddy v Smith 361 (5), 707 (12), 852 (11),
878 (1), 885 (11), 925, (7), 1008 (9), 1310 (9)
Beecher, In re the Estate of ... 1026 (15)
Beere v Cavendish ... tee 538 (4)
vHead... 931 (2), 963 (5), 981 (6)
v Head 445(7), 646(10), 1155(1), 1327(8
v Prendergast 912 (1), 1401
Belas v Norris i Fas 1008 (2)
Belcher v Brady _.. 969 (1)
Belfast Harbour, The ‘Commissioners
of, v Lawther 469 (3), 476 (2), 626 (7),
693 (2), 846 (10), 975 (6), 1210 (1),

1248 (8)
Bell v Ahearne 408 (2), 626 (4)
——v The Attorney-General ... 727 (13),
1039 (5), 1045 (12

 

 

 

 

 

== YB)... 751 (4), 1184 (3)
vB. 112 (1)
BS "976 (3), 576 (4)
» Dawson "95 (4), 855 (9), ae (1)
——, In re 8 Q)

 

’y Johnston 613 (12), 1023 (5), tia (8)

 

——vMCarthy ... 678 (9), 989 (6)
v M‘Loughlin ... 931 (11), 1053 (17)
v Tape 1168 (3)

 

Belmore v B.

899 (12), 969 (8)
Belvidere’s Charity, ‘In re

120 (5), 122 (1),
466 (7), 1238 (7)
Bennett v Beamish ... 1005 (4), 1094 (7)
v Bernard 170 (8), 446 (6), 600 (1),
634 (2), 726 (6), 820 ty 899 (9),
1191 (5), 1192 (4)
v Bernard ... 601 (2), 632 (5)
v Briscoe 639 (4), 695 (8), 824 (10)
v Cooper... eis 684 (1)

 

 

 

 

 

 

 

 

- v Power 1051 (8), 1068 (8)

v Richardson 507 (5), 544 (4)

v Wheeler 1028 (1), 1094 (9)

v Wolfe ea sto 9387 (1)
Bennett’s Estate, In re 462 (5

Benson v Derrig 1045 (5), 1046 ae

Bentley v Robinson... 842 (7)

 

v Robinson 112 (19), 739 (2), 958 (12),
1283 (2), 1802 (3)

) | Blackley’s Estate, In re

 

 

———y Molloy... 692 i
Biggs v Head 983 @,1 1017 (8), see dd)
——, In re 93 (6)
—— v Rowe nth (6)

» Sadlier .. 24 (6), 154 (3), 507 (7),

938 (4), 940 (2)

Bigley v King 865 (4), 1022 (17)

 

Birch v Alt 836 (3), 1020 (5)
» Oldis 1073 (7)
——v Walsh —_112.(7), 362 (10), 795 (1),

800 (7), 820 (3), 829 (13), 907 (2)
Blachford v Long ... 554 (2), 1874 (5)
Black v Campbell ... 1349 (8), 1381 (3)
Blackhall v Nugent... 24 ®), 34 (2), i. (3)
Blackledge v Barry .. 09 (4)
= 996 (11)

Blackwood v Burrowes 762(1), 765 (6), 947 (4),
1289 (10), 1301 (3)

822 (1), 886 (10), 1091 (1),
1118 (4), 1174 O)

807 (4), 594 (1), oe Ls

——— v Gregg
Blair v Nugent

 

 

 

66 (1)

Blake v B.... out (15)
vB. .. 609 os 1112 28) a (4)
vB... 02 (6)

vB. .. se 1062 (1)
—— vB. ... 114 (10), 195 (1)
=o Be vs 128 (5), 234 (2)
—— v Comins Es 668 (10), 1134 (8)
—— v Darcy 444 (5), 1158 (2), 1221 (3)

 

v Foster 782 (12), 799 (1), 816 (9), 818 (7)
v French 119 (2), 174 (2), 218 (4),
759 wo 892 (9), 1145 (1), 1192 (5),

1232 (
» Hyland (2), 134 (1, 9), 216 (8),

2), 387 (9), 1236 (4),
1320 (9)

220 a ay
——,Inre 464 (5), 603 (2), 1146 (5), 1278 (1)
v Peyton 907 (8),-1120 a

 

 

 

5 | Blake’s Estate, In re 38 (3), 201 (2), 523 C1

Blakely v Brady 68 (2), 127 (1), a. tec

Blakeney v Annesley 909 (9), 934 (5), ono (7)
» B. 793 (4), 820 (6); 907 (9), 1053 (6)

 
[NAMES OF CASES.] v

Bland v Goold ans
Blayney, Lord, Ex parte
Bleakely v Collum
Blennerhassett v Day
v Monsell
Blood’s Estate, In re
Bloss v O’More iy
Blosse v Lynch ‘806 (2), 906 (13)
v Prendergast - 42 (2), 196 (3)
Blount v The Great S. & W. Ry. Co. 1091 (14),
1166 (1), 1309 (6)
Blunden v Desart 449 (6), 573 (9, 10), 1048 (8),
1213 (6), 1217 (3), 1218 (1)
Boag v Bradford _ ...788 (8), 927 (4), 942 (6)
Boate, In re 448 (4), 464 (9), 1407 (139
Boate’s Estate, In re 163 (9), 728 (4)

1088 (14
"390 (8), 1096 (
155 (2), 845 (7), 544 (6)

oe 924 (5

 

169 (7), 1236 (6)
397 (89, 1248 (4)
945 (2)

 

 

) | Boyland v Warner ... 529 (2)
7) | Boyle v Ferrall 663 (5)
—— v Guiness sik ‘802 oe 929 (11)

v Olpherts 209 (5), 510 oa my

2 (6)

Boyle’s Trusts, In re 1288 (4)

Boyse v Rossborough 14(7), 387(2), 786 (10),

992 (3), 1021 (3), 1347 (1)

..426 (4), 431 (3), 982 2),

994 (11), 1367 (2)

.. 417(6), 477 (5), 526 (4),
1234

. 247 (4), 833 qo,a18 Cb,

vTeynham 946 (2), 948 (14), 1087 ta
Bracken v Drought .. 834 (4), 891 (9)

Brabazon, In re

v Lucan

 

v Lucan

 

 

 

 

Boddington v Langford 1076 (5), 1272 (2), | Bracken’s Estate, In re 1212 (6)
1320 (5) | Bradford v Roche . 1019 (6
Bodkin, In re 993 (5) | Bradley v Davis ie 364 (18), 1009 (10
Bodkin’s Estate, In re 391 (2), 452 (4), 591 (5), v Flood ». 235 Cs 334 (2), a 6
931 (15), 1002 (6) v Head 69 (5
Bohan v Cambie... 953 (5), 1016 (6) | —-— v Reilly 1045 (13
Bolton v B. 552 (1), 562 (2), 1392 (1) | Bradshaw v B. 270 cone, 1358 (1), 1372 a
v Carmichael 662 (6), 696 (15, 16), v Shortt wi 1099 (7)

 

1124 (8)
298 (4), 900 (10
Bond v M‘Watty 8 (9), 9 (9), 679 (9)
v Slator 507 (1), 544 (1)
onyage v Colgan 52 (8), 1057 (8), ae ae

 

v Fairtlough...

 

 

 

09 (3)

v , Finucane si Mt Q)
Booth, Ex parte 1206 (12)
v Parkes 10 (10), 661 (2)

v Purser 580 (6), 1003 (12), 1015 (9),

 

1278 (8), 1290 (3), 1296 (1)
740 (1), 757 (4)
v Hamilton 843 (12), 847 (3)
v Williamson 302 (7), 446 (7),
1141 (4), 1225 (4), 1242 (15), 1388 (9)
Boswell v Dillon * 1270 (7), 1383 (5)
Boulgerv Smith ... ‘ 1294 (9)
Boughton, Ex parte, In re Bunbury 846 (1)
Bourke v Kane 416 (4), 1396 3
, in re 997 (4
, Re... 88 (11
Bourne v Farran 832 (12), 837 (18), 845 (2),
849 (4), 873 (8), 887 (9), 896 (1)
Bowen v Evans 11 (2), 349 (1), 570 (6),
1012 (4), 1114 (6), 1821 (7)
322 (4), 325 (3), 1286 (1)
447

Borough v Close

 

 

 

 

 

v Lindsay
Bowerman v Mass
Bowes v Watson
Bowles v Waller
Bowyer v Beamish .

yo. 79)
374 (1), 688 (12), 778 (4)
a 887 (13), 1245 43 5)

 

 

 

v Beamish ... 778 (8), 887 (10)

vy Blair 178 (2), 1129 (10), 1202°(3)

Box v B. ... 1.197 (4), 380 (4), 382 0),
384 (5), 481 (10)

v Jackson 378 (4, 5), 379 (2), 478 (5)
Boyce v Johnston 383 (5), 1072 oa
v Woodroffe 656 (6), 1289 (2

 

Boyces Minors, In re 873 (4)
Boyd v Belton 18 (2), 188 (2), 311 (2), 338 (5),
585 (4), 650 (7), 908 (13)

434 (3), 628 (4), ae
B01 (3), 560 (2), 579 (9),
597 (9), 673 (4), 808 (11)
Na 1340 (9), 1380 (1)
.. £ (5), 168 (8), 825 (10),
1278 (6)

 

v Burke
——, Ex parte
v Higginson

 

v Martin
v Murdock

 

 

) | -—— v Fitzgerald

 

 

Brady v Finnegan ... “797 (1), 872 (5)
58 (3), 260 (7), 470 (10),
674 (2), 1174 (5),

— Fitzgerald 271 (2), 508 (6), 1174 (4),
1246 (5

 

——v Fitzgibbon 463 (8), 584 (4), 896 (2),
1054 (14), 1069 (9)

v Lawless wes 1205 (8)
Brahan v Lawder 696 (12)
Brand v Greenly 589 (4)

Brangan v Gorges 132 (7), 281 (6), 511 (6),

609 (7), 676 (13), 701 (3), 714 (9),

799 (10), 804 (11), 808 (14), 812 (2),
829 @, 850 (6) 1126 (4), 1208 (3),
.-417 (9), 929 (8), 930 (16),

1199 (3), 1855 (7)

Brennan v Boyne 215 (3), 216 (3), 272 (4),

287 (5), 516 (3)

28 (2), 45 (2), 496 (2),

518

v Carroll 651 (7), 794 (18), my a)
Ex parte... 83 (8)
v Fitzmaurice 1033 (11), 1182 (1)
v Kenny 328 (1), 503 (5), 777 (1),

797 (2), 880 (18), 843 (11), 1089 (11)

v Moran .. 558 (8), 13853 (1)
v Shearman 816 (2)
Brereton v Barry 112 (20), ‘113 (8), 203 (4),
746 (2), 747 (6), 789 (8), 1016 (7),

Bredin v B.

v Bolton

Ti

 

 

 

1386 (1)
v Hutchinson 826 (3), 580 (4),
595 (2), 1279 (8)
v Kennan .. 787 (3)
Breslin v Waldron ... 1382 (5)
Bridge v Egan 1097 (1)

Brinkley vHann 31 (8), 43 (8, 5), 347 (4)

 

 

Briscoe v B. 251 (2), 258 (7), 535 (4),
1849 (5), 1354 (15, 1393 (4)

, In re 612 (205, 808 (10), 1033 (7)
Bristow v B. 26 (3), 181 (1), 671 (8)
» Millar 486 (2), 628 (8), 719 (1),

1087 (1)
v Warner 636 (2), 637 (3), 841 (11),
1214 (8

 

Britton v M‘Donnell . 282 (6), 1081 (7)
Broadbent v Hughes 387 (15), 887 (14), 984 (9
Brooke v Elliott 8 (7), 9 (8), 679 3
vi

Brooke v Horner 245 (4), 260 (8), ph 5 Gas

 

v Stewart... ae a0

v Stewart & Wade | 324 (2), 714 (6)

Brophy v Connolly 2 (2), 32 (7), 34 (8), 371),

500 (1), 521 (1), 1338 (4)
966

 

 

 

 

v Quarry

Brown v Allen 4 ‘684 (12), 817 (2)
vB. 360 (7), 107 f> 1258 (3
v Chambers ... 43 (10), 945 (4
v Lynch 170 (5), 597 (5), 885 (2),

 

892 (5), 1018 (6), 1022 (4), 1099 (8),

1102 (5), 1139 (1), 1219 (8)
—— v M‘Clintock 340 (29, 364 Sy 386 (3),
957 (8), 1194 @), 1200 (4)

 

 

 

v M‘Dermott wis 1036 (5)
v Stepney 258 (6), 623 (7)
Browne v Martyn 267 (2), 1837 (2)
v Betty 934 (1)

 

v The Tibliop of Cork ‘581 (8), 631 (6),
716 (2, 7), 1240 (10)

v Cavendish 168 (6), 179 (3), 449 (15),
762 (5), 1282 (6)

 

 

 

v Chambers ... eis 921 (8)
v Coote ex ei 878 (9)
—— v Coppinger ... 672 (13)
. Inre 26 (5), 104 (4), 108 (3),

 

305 (2), Bod (1), 566 (4), 653 (3),
788 (7), 914 (12), 1146 (2), 1229 (59,
1386 (4)
, Inre, a Minor 368 (6), 369 (11), 394 (2),
399 (5), 735 (1), 738 (5), 1173 (5)
———- v Lynch 10 (11), 596 (10), 1012 (9)
v Maunsell ... 1279 (5), 1801 (10)
vO’Donnell_... 709 (1), 719 (2),
801 (18), 804 (5)
v The Marquis of Sligo 37 (4), 161 (6),
195 (8), 218 (1), 521 (8)
Browne’s & Beytagh’s Estate, In re 588 (5)
Browne & Blackie’s Estate, In re 1002 (3
Browne’s Estate, In re 92 (8), 354 (3), 407 (1),
; 448 (7), 1001 (9)
Estate, &c., In re 1002 (1), 1160 (8)
Brownlow v Keatinge oes 1219 (7)
v The Earl of Meath 68 (4), 127 (2),
159 (1), 161 (2), 250 (4), 621 (2),
653 (4), 752 (2), 894 (1), 912 (10),
957 (2), 1015 (2), 1091 (4), 1195 (2),
1139 (4)
Brownrigg v Colclough 119 (10), 175 (1, 2),
407 (8), 1233 (8)
Brownrigg’s Estate, In re 422 (6), 788 (15),
1003 (1), 1003 8 (8) 1407 (10)
ope 813

 

 

 

 

 

 

 

 

Bryan v Cambie (16
, Imre... sds 998 CL
v Richardson ... 1082 (7)

Bryson v M‘Cluskin.. ‘7 (1), 1028 (9)

Buchanan v Hoare 1032 (4)

Bucke v Mu®phy 474 (1), 1034 (1), 1213 3,
1217 (7)

1296 (6)

", 81 (1), 376 (1), 1193 (1)
907 (4), 1007 (10)

636 (4)

679 (4), 909 (6),

1092 (99, 1888 (5)

Buckley v B.
Bucknell v B.

Buist v St. Lawrence
Bulfin v Dunne ji
Bull, Ex parte

v Wigmore... ae
Bunbury, i re, Dengan Ex parte 46 a

» Lloyd’ 195 (5), 808 (139
v O'Brien -..811 (4), 812 (8), aos ie

 

 

 

3)} Burke v Browne _...

 

[NAMES OF CASES.]

Bunnett v Helsham...

732 (2)
Burgess’s Trusts, In re 235 (5), a @),
01 (6)

Burgh v Hickman ...

1289 (6), 1293 (5)
—— v Kenny ses

811 (7), 832 (2),
1261 (3)

1081 (9), 1232 (4)
828 (5), 978 (4), 1017 (10),
1031 (4), 1053 (15)
Burke’s Estate, In re 294 (3), 469 3 ne (1),

oB. ...

 

 

 

 

 

 

 

 

Burke » Hutchinson "Bal atc
, Inre... i a) (4), a (7
v Jennings ee

— v Killikelly 338 (1), “447 (3), 863 33
v Lambert -. 55 (8), 182 (4), eal (6)

— v Lidwell a 841 (5)
v» Mahony 689 (5), 779 (11)
vO’Connor... 626 (5), 871 (12)
v Prior --. 19 (2), 153 (4), o 5,

2

—,Re ... 101 1 13
v Smyth . 86 (5), 486 (8), Py >
v Tuite 384 (1), 1236 (3), 1237 3

 

— v Tully 1365 (1)
Burley v Armstrong ... 1149 (1), 13892 (2)
Burmester’s Estate, Inre 263 (2), 1000 (9)
Burmester, In re 219 (4), 227 (4), 645 (1),
"651 (5), 660 (2), 1157 (1), 1822 (3),

1829 (2)
Burne v B.. 360 (12), 987 (13), 1128 (8)
v Robinson 182 (2), 417 (7), 420 (4),
433 ( 581 (6), 1031 (5), 1117 (12),

1240

Burns » Owen 119 (7), 174 (8), 797 (9),
1282 (14)
806 (8), 817 (7)
1299 (4), 1831 (3)

 

Burnside v Mayne ...
Burris v Sheppard ...

)| Burrough » Cranston 635 (3

v Williamson 805 (17), 958 (2)
Burroughs, In re 10

3 6)
» M‘Creight 584 (5), 606 (5), 74 LD,

v MIlween 788 (13), 784 (9), 803 3)
v Molloy... 361 (7), 655 (1), 792 3
1120 (3)

595 (1), 810 (5), 1253 (1),
1266 (

 

 

 

 

Burrowes v Gore

 

 

 

 

v Hayes bee 205 (4), 535 (6)
, In the Goods of T041 (1), 1396 (1)
v Molloy 623 (6), 624 (3), 632 (7),

715 (13), 1055 (14)
v O’Brien 718 (4), 1281 (2)

Burt v Bernard 168 (2), 186 (7), 433 (7),
458 (7), 1054 (5), 1064 (3), 1068 (25,
1069 (1), 1081 (6), 1227 (10)
Busby v Seymour 485 (6), 585 (1), 598 (8)
Busteed v The West of England In-
surance Co. _ ...261 (2) 344 (6), 408 (4),
498 (3)

 

 

 

Butler v Burke ee st 496 (7)
v B. we 138 (7), 218 (1)
v Goold 1051 (9), 1119 (6)
v Collins pr se 1087 (5

——— v Mulvihill ... be B17 3

 

v The Earl of Portarlington 343 (8),
488 (1), 497 (4), 1239 (9), 537 (2, 3),
641 (2), 705 (4), 707 (8), 716 (8),

919 (10), 11325)
Butler’s Estate, In re 592 (3), 607 (2)
(NAMES OF CASES.]

Butler v Sparrow Siioe its
——— v Troy 926 (2), 945 10
Byrne v B.... 1405 (1), 466 (6), 597 (8),
675 (9), 684 (13), 689 (10), 703 (4),
1238 (10), ~ 710 (2), “818 (14);
1227 (11), 1397 (2)
Byrne v Carew, Lord, 10 (7), 12 (4), 217 (8),
875 (5), 405 (7)

958 (

 

 

 

 

 

 

 

 

 

v Coleman 696 C10
—— v Dignan "384 (5), 391 (4
v Dillon 848 2
v Duignan 823 ens ye ae
v Everitt 15 (7)
v Gardiner 1070 (8)
v Hogan 867 wee 1339 (8)
v Hugo 1409 4
v In re 1288 (3
v Kelly « -  1086(6
— v Lafferty 1096 (11), 1819 (6)

 

v Langmore 1018 (7), 1022'(6), 1117 (5
<y Robinson 417(7), 420 (4), 581 (6),
2

 

 

)| Carroll v Darcy

vii

Carey v Browne
—v

Carey v ‘Doyne

781 (14), ald 4)

9

414 (2), 579 (5), oT rap
680 (4), 781 (1)

.  : 1206 (11

455 (2

"684 (9), 818 (13

30 (4), 39 (3), 36(6
"259 (7), 490 (7), 519 (5)

1398
156 (5), 1136 3
. 78 (9), 406 (9

1067 ©

——, Ex parte av
v M‘Dermott ...
Carnegie v Johnson ...
Carolan v Brabazon...

 

Carolin v Hewson
v Stewart
Carpenter, Re
Carr v Austin

 

 

 

 

 

 

v Boyce 613 (10), 718 (8), a ie
——, In re...

v Moulds 839 (4), 1048 (4, 3 G

v O’Connor ; 588 (2), 1366 (6

v Osborne » 71 (), 613 (7), 709 (5

v Robins

5s 1070 (13
418 (9), 446 (4), 599 (9),
862 (11), 892 (2), 1116 (9)

 

 

 

 

1240 (9) v Donoghoe ... 813 (1), 857 (7)

Cc v O'Connor ... 131 (4, D, 169 (1),

264 (5), 664 LO,

Cahill v Lambert... 805 (13 , Re... 78 (5)

Cairncross v ee “608 (8), on ) v Scully “440 (5), 460 (2)
, In Carson v M ‘Kenzie wee 975 (7

Caleraft v West 467 (6), "673 (6), 363 & Cartan v Bury 33 @, 37 OF 47 (5), 522 8

977 (1), 1222 (6) | Carter v C... 695.(6), 824 (13)

Callaghan v Blake 988 (7), 1212 (2) |—— v Dickenson 473 (5), 698 (1)

 

v ©. 33 (5), 36 (1), 38 (8), 43 (8),
369 (3), 476 (6), 718 (2), 789 rae
838 (16), 854 (10), 887 (16), 893 (6),
959 (11), 1006 (8),
1077 (5), 1190 (1)

v Egan aes 1017 (6), 1033 (5)

v Pepper 8 (11), 45 (8), 495 (2),
518 (5), 1118 (9), 1119 (5), 1332 (4),

v Reardon 822 (10), 1005 (9),
1073 (12), 1083 (8)

Callanan v Blake 363 (6), 607 Maes a Ae, 13)

1075 (11),

 

 

 

 

 

 

 

 

 

 

 

Campbell v Brown ... 77 (12
v Browne 66 (10
v Bryan 872 (7
vc. “480 (8), 868 (7), 1021 (6),
1046 (10), 1393 (5)
v De Verdon... ee 1396 (4)
v Pepper... o 1045 (8)
v Robinson ... 1045 (7
v Ross “bas Q), oe
v Young °

"279 (3), aT of
ee 627 (5), 869 (9
297 (1), 561 (1), 1889 C4

Campbell’s Estate, In re
Cane v Brownrigg
v Fitzgerald

 

 

 

 

v Stewart 24 (2)

Cannon v Bourke 19 (15)

» M‘Intyre 1044 (19)

Canny v Hodgens ... 536 (1)

Cantillons Minors, In re 497 (3), 1351 (2),

1408 (10)

Cantwell v Hassard 261 (4), 289 (2), ani (2)
v Martin 33 (7

Cathey » Cox 122 (6), 124 (7), 66s dl),
670 (4), 788 (5), 920 (11), 935 (6),

1338 (7)
—vPreston 587 Seana 602 ©, ae eae
Carberry v Healy... 42 (1 i

 

Carden v Butler - 958 a
Carew, In re 326 Cy 1106 (D, itt (3
Carew’s Estate, In re 58 (2)
Carew, In re Hallam 458 (2)

 

— v Mahon 170 (2), 173 (1), 383 (7), 384 (8),
449 (7), 454 (8), 1232 (1)
v Palmer 111 (3), 113 (11), 354 (4),
357 (8), 672 (5, 6), 690 (11), 782 (10),
838 (15), 854 (11), 898 (4, 5), 894.13),
1119 (4), 1184 (2)

v Uniacke

 

 

27 (1), 974 (5)
Casement v Rorke ... 798 (3), 1058 (6)
Casey v C.. 830 (6), 907 (5), 1044 (109
Casey’s Trusts, Inre 94 (5), 377 (4), 403 (6),
B75 (2, 3)
Cashell » Kelly 403 (1), 465 (11), 676 (10),
707 (9), 710 (3), 946 (8, 14), 948 (6),
957 (14), 1007 (2)
Cashen v Hayes te 1065 (8)
Cassan v Carr 781 ee 814 (12), 821 (7)
Cassan’s Estate, In re --60 (8), 169 (8),

1000 (3)
Cassidy v Hopkins... 1026 (11), 1056 (5),

1239 (10)
Caswell v Doyle 1047 (4)

Cathcart v Hewson 781 ), 782 (18), 783 (12),
840 (9), 898 (8), 987 (I), 1093 (8)
Cathedral of Londonderry, In re the

Pews of 246 (5), 1130 (1)
Cather v Murphy ... 908 (7)
Catholic University, The, Re, 1302 (1), 1308 (3)
Caulfield v Giles 731 @), 1254 (1), 1354 (7),
1382 (6)
v Maguire 53 (7), 61 (8), 206 (3),
212 (5), 284 (2), 321 (59, 403 (7),

411 (6), 415 (10), 568 (7), 741 8
757 (1), 766 (4), 897 (6), 1187 (3)
1176 (2), 1358 (4), 1401 (5), 1407 (7)
Cavanagh v Blake 365 (1), 776 (2), 822 (14)
Chaignean v Bryan ‘22 (1), 316 (5), 324 (6),
881 (3), 338 (7), 1297 (7), 1298 (2)
Chaine v Dungannon 482 (1), 786 (6),
801 (3), 835 (7), 858 (9)
11), 81 (8), 48 (4),
1133 (8)

 

Chambers v Betty
vili

Chambers v Gaussen 154 (1), 530 (4), 547 (3)
. In re 748 (2), 748 (8), 752 (2), 757 (5),
865 (3), 1285 (8), 1287 (10

 

 

v Shannon 857 (10), 1259 (7
Chamley v O’Brien sate 1067 (9
Chapman & Bradford, In re 86 (7), 105

v Dunbar
Charleville, In re

 

6
2 1063 (1); 1067 3
418 (1), 710 (2), 720 (1),
729 (2), 763 (2

v Tighe 3867 (7), 399 (7), 697 (9

Charley, Ex parte, Re Wilson ... 79 (5
Chatauvillard, In the Goods of 48 (4), 387 (4),
1010 (4)
Chatterton v Allen... 456 (1), 1054 (15)
, in re, Ex parte the Knock-

trillane Min. Co.

 

 

141 (4)

 

 

v White 209 (3), 832 (1), 1302 (5)
Chaytor v C. 1410
v Peyton .

459 (3), 1048 (2), 1050 (3)
.. 1035 (11), 1036 (4)
se 625 (3), 1062 (9)
613 (3), 963 )2), 981 (5)
777 (7), 812 (12

687 (7), 908 (16),

1091 (11)

968 (3)

151 (2), 205 CD,
317

Chester v Barrett
Chinnery v Evans
Chinnerys, In re
Church v Nugent...
Chute v M‘Gillicuddy

Clancy v Roberts”...
Clancy’s Estate, In re...

Clanmorris v C. 298 (5), 664 (3), 900 Gy
312 (14

 

 

v Mahon 113 (1), 838 (1), 849 (5),

1012 (8)

Clare, In re 610 (3
In re the Estate of 1107 (1

529 (5), 753 (1), 833 (10),
848 (7), 960 (2

, Re 99 (6), 378 (2), 388 (6), 407 %

Clarke v Armstrong 161 (9), 231 (1), 651 (8),
1329 (1

v Bodkin 290 (2), 296 (6), 601 (5)
v Chambers 220 (3), 377 (6), 709 (2)
» De Burgh 875 (12), 884 (8) 1118 (12
v Dobbin 1018 (19), 1096 13)

Clark v Smith

 

 

 

 

 

 

 

 

v Ex parte. 89 (7)
v Fisher 419 (40), 1005 (11), 1073 ie
v Fitzpatrick .
—, In re 185 (3), 1147 (2), 1393 (25
—— v Jessop 731 (1), 820 (2), 890 (3),
1004 (8), 1199 (6)
vM‘Mahon _ 684 (6), 1056 a 1208 (8)

 

 

v M‘Nally 118 (4)

 

 

 

v Moore 1 ©, 36 (4), 485 (7), 519 (2)

v Pope 325 (4), 712 (7)
—— v Smith » 529 ©) 749 O, ee =
—— v Staples

v Wilson “1301 63

102 (8), 103 (2, 3), 116 (1),
166 (2), 171 (6
Clayton v Chichester a 1087 en
v The Earl of Glengall 197 (2),
417 (8), 1188 (8), 1199 (2)
Cleary v C. 327 (9), 393 (8), 676 (5), 710 (1),
719 (7), 825 (6), 956 (6), 1025 (9),

1033 (12)
Cleary’s Trusts, In re 1360 (1), 1362 (5)
. 610 (5), 875 (5)

Clarkes, In re

 

Clegg, In re q
Clege s Estate, In re 433 (2), 552 (2), 1850 (6),
1394 (4, 5)
352 (1), 1211 (5)
366 (5), 718 (11),
1407 (5)

Cleland v Leech
—— v Montgomery

7) | Cocking v Alexander

 

[NAMES OF CASES.]

 

v Ker -. 206 (7), 362 (6), 568 (4),
801 (1), 1222 (10)
v Ritchie 1835 (9)

 

Clements v Eccles 17 aon 178 (6), 348 (1),
408 (4), 1228 (5), 1286 (5)
814 (11)

v Heenan ..
208 (2), "206 (2) Ge ak

Clements v Henry

 

Clements’s Estate, In re
Clendinning v Brett

205 (2), til
868 (4), 1001 (10),
1003 (3)

,Inre 91 (5), 604 (6), 929 (4), 938 (7),
» Knox 499 (3), 875 (1), 888 (2),
1085 (1g

392 (2), 929 (6), 1084 (89,
1054 (8

445 (8), 1062 (5
: 1372 (7), 1407 (11
2. 400 (®), 638 (8), ao ig

Cliff v Jones 2

Clifford v Kelly "1320 a), 1333 ey
Clift v Galway... 862 (12)
Clinton v Bernard 224 (10), 395 (2), 402 (6),
482 (11), 634 (6), 903 (3), 1287 (9),
1239 (1)
v Brophy 321 (7), 586 (6), 599 (4)
v Watkins ... fe 1288 (4
Cloncurry v Piers ... 446 (1), 464 (8), 586 (2),
598 (10), 712 (2), 934 (4), 1031 (15),
1051 (5), 1063 (7)
Cloran v The Earl of Clancarty 113 (7),
851 (3

.. 131 (2), 489(2), 794 oS
1088 (5

 

 

v O'Malley,

 

v Lord enamide
Clibborn v C.
— v Forstall

 

 

 

 

Close v Brady

Cloughley v Jameson 419 (9), 588 (1), 626 (10)
Clune v Apjohn 761 (4), 1365 (2)
Clutterbuck, In re ... 177 (2), 348 (2)
Coane, In re 604 @), i, (8)
Cochrane v C. i

v Fitzpatrick | F “Tosa %
v O’Brien 439 (3), 692 (7, 8), 815 (11),
857 (12), 876 (17), 75 (SS

is 6

295 (2), 449 (13),

1282 (4), 1821 (6)

840 (15)

292 (4), 593 (5), 676 3B,

..710 (1), 719 1)
oe 1285 (11)
oy 1038 (14)
925 (6), 1079 (11)
223 (2), 603 (8)

 

 

Cockburn v Warner
Cockburne v Wright

v Golding

 

Codd v Trood
Coffey, In re
Coghlan, In the Goods of
Colburn v Cooper
Colclough, In re

 

 

v Smyth 345 (6), 528 (5), 535 (1),
544 (5), 545 (3), 714 (10), 888 (14),
924 (8), 925 ia
Cole, Ex parte a 82 (4)
v Lucas ‘B53 (b, 1864 (8)
v Monks

 

 

v Sewell 210 (6), 274 (2). 277 (5), sik i
433 (4), 577 (2), 1174 (1), 1183
1403 (3), 1406 (9)
Coleman v Mason 13 (4), 167 (4), 186 (8),
825 (7), 955 (4), 1068 (3), 1079 (5)
Collins, Ex parte 460 (1), 480 (5), 647 (7),
1215 (3), 1824 (7
——,, In the Goods of a 843
——, Re a
Collis’s Estate, In re
Collis v Stewart
Collum, In re

ie 1028 (11)
1109 (1), 1318 (4)
838 (7), 850 (10)
fe vs. 66 (9)
[NAMES OF CASES.]

Colthurst v C. 18 (1), 483 (9), 495 (3),

571 (1), 876 (13
, Ex parte, In re Barretts 833 (8
=, Inte . 119), 394 2), 401 (6),

arn (1, 3008 (18), 1009 (4), 1012 (29,

Colthursts Minowe Inre 256 (2), 490 (1, 2),
494 (6), 525 (8), 531 (6, 7),

532 (1, 2, 4
. 183 (43, 361 (3), 434 (9),
1059 (1), 1220 (8), (1142 (5)

 

Colvan v Gregg

Colvile »v Adams 1065 (4
Comerford v Blake ... ‘794 (6), 1098 (6
Comerford, In re 86 (12

Commissioners of the Bankrupt Court,

The, In re 84 (8), 1125 (8)
Commissioners of Belfast Harbour »
Lawther 469 (3), 476 (2),

626 (7), 693 (2), - (109, 975 (69,
1210 (1), 1248 (8)
Commissioners of Ch. Don. & Beq. v
Archbold 125 (3), 1233 (12), 1395 (7),
1290 (i)
v De Clifford 123 (2), 124 (2, 9),
315 (1), 582 (6), 1355 (6), 1878 (39,

1393 (3)
v Cotter 740 (8), 837 (1), 854 (2),
1841 (7), 1852 (2), 1403 (5)
278 (3), 669 (5), 692 (1),
699 (2), 1366 (5), 1395 (3)
v Harris : 898 (9
———v Hunter 822 (12), 910 (6), 1091 (5
v St. Lawrence 52 (9), 62 (3), 956 (8),
1034 (3), 1369 (1)
122 (2), 123 (3), 1395 (5)
ae 123 (7), 552 (4)
v Wybrants 125 (1), 585 (3), 593 (13),
1265 (7), 1233 (9)
v The Att.-Gen. 125 (4), 1288 (3)
Commissioners, The Ecclesiastical v
Armstrong 247 (5), 1234 (2), 1250 (5)
v Delmege ... 243 (2), 1224 (1)
v Dean & Chapter of Kildare 244 (3)
v Sligo sis 589 (8) 1174 (8)
Commissioners, The Poor Law v
Fitzgerald a 838 (8)
Commissioners, The, of Public Works,
In re, ex parte Studdert 240 (5), ‘L164 (2),
1228 (5)
Commissioners of the Shannon, The,
In re ... 847 (1), 859 (11), 884 (13),
1080 (9), 1316 (6)
Commissioners of Wide Streets The,
477 (2)

In re
Commissioness of Wide Streets of

Cork The, In re 587 (8), 1031 (12)
Commissioners of Woods and Forests,

The, In re 859 (14), 885 (4), 1222 ca)
Comyn, Re 92 6
Comyn’s Estate, In re

 

 

 

v Espinasse

 

 

v Sullivan

 

      

 

 

 

 

 

"60 (7), 468 (8),
1096 (9), 1247 (8)
, vIn re 82 (6), 1017 (5), 1047 (7)
Congleton v Mitchell 491 (8), 820 (11),

931 (4), 967 (5), 981 (11), 984 (13),
1026 (13)

 

E. | Copeland v Conway

ix

782 (9
, Re 86
Connellan’s Trusts, Inre 1396 (9), 1408 (12)
Connery, In re 884 (4), 1211 (6)
Connolly v C. 21 (2), 65 (4), 66 On 66 Bh )»

Connell v Godwin

 

 

, Ex parte

38 346 (1
Conolly v M‘Dermott

“330 (1), 740 (2),
800 (4), 890 (1D)

Connolly v Teevan ... 727 (9), ei (3, 4)

 

 

Connor v Burke... 029 (2)
vC. “969 . 972 (4)
v The Duke of Devonshire 1261 (3)

—, Inre 114 (11), 739 (3), 1380 (2, 8)
oMGettigan ... 802 (9), 1045 (15)
v Reeves 11(5),802(11), 8113), 816 (14),
818 (6), 819 (6), 902 C1), 1019 (13)
Conolly v Codd”... | “1058 38 (12), 1076 (9)

 

 

Conran v C. 567 (3)
Conroy, Ex parte 678 (10
Constable v C. 9 881 (10), 1082 (8
Conyers v Crosbie 9 (2), 751 (2), 817 (1),
881 (2), 984 (8), 1016 (1), 1069 (7),
1079 (8), 1088,(18), 1089,1), 1103 ey

1265 (9)

Cooke v Briscoe 258 (2), 765 (4), 828 (8),
1030 (10

222 (2), 224 (1), 353 (8),
372 (11

v Campbell 870 (1), 902 (12)

v Courtown . 63 (1), 73 C1), 256 (4),
467 (3), 676 C11), 680 (3), 710 (1),
718 (7), 865 (4), 876 (10), 882 (9)

v The Marquis of Donegal 55 (2), 789 (1)

v Franklin 252 (5), 787 (18), 1009 (1),
1016 (4), 1098 (8), 1844 (3), 1397 (5)

 

v Burtchaell

 

 

 

 

 

——,, In re 227 et 1156 (4), 1272 (1)
v Sharman ae we 1079 (12)
Cooney v Holland 767 (2)

Cooper v C. 239(5,7), 369 (5), 375 (1), 443 (4),
556 (1), 1074 (2), 1840 (5), 1317 (89,
1121 (11), 1113 (), 1107°(7)

 

 

 

v Madill 915 (1)

v Phibbs 268 (4, 5), 481 (3), 620 (2),

727 (8), 1409 (1)

v Warre 1841 (2), 1408 (14)
Cooper’s Estate, In re 3 1021 (2)
Coote vC. 301 (5), 311 (5), 337 (1), 502 (4),

1110 (2), 1387 (2

 

 

—, Ex parte 370 (1), 541 (2), 873 (5
— In re 88 (7), 108 (9
v Milltown 283 (1), 284 (15, 329 (85,
412 (2), 1400 (2)
v O'Reilly 52 (4), 105 (2), 182 (3),

274 (3), 288 (2, 6), 404 7)
v Trench 726 (3
Cootes, Minors, In re. "397 (5), 533 heh

547 (2

1027 (12), 1107 (6)
1121 (8), 1223 (2)
878 (9), 984 (11)
212 (1), 282 ({), 510 (3),
513 (9), 981 (9), 1808 (1)
Corballis v The Grand Canal Co. “... 47 (1),
675 BO), ae (6)

 

Copperthwaite v Tuite
Coppinger v Carnegie
v Gubbins

 

 

Conlan v Jackson ... 855 (11) | Corbally v Grainger ; 382 (1)
Conmee v Taaffe 275 (5), 280 (4), 424 (4), v Kirwan Fs (5)
576 (2), 1254 (8), 1866 (8, 4) | Corban v The Earl of Mounteashell 391 (1),

829 (8), 1026 (12),
1211 (10
907 (14

Connatty v O’Reilly ..
Connell v Frith

 

480 (1), 1060 (4), 1071
Corbet v Mahon “ ‘ 3 182 &

fa 5
434 (2), 1027 (14), 1075 “oy 1140 (6)

c
x

Corbett v De Cantillon 459 (9), 629 (1),

1155 (5)
927 (2), 946 (10),
947 (14), 952 (3)

925 (9), 1044 (18)
v Sparrow

; 1034 (5)
Cork & Y. Ry. Co., In re, ex parte
Harnett ... 35 (2), 48 (2), 469 (5)
Cork, The Earl of, v Blennerhassett 803 (14)
, The Wide Street Commrs.

 

v Hayes

Corcoran v Duggan ...

 

 

of, Inre ... 587 (8), 1031 (12)
Corker v C. é 808 (3), 1010 (5)
v Ryan 627 (9), 631 (4), ee anes

 

Corkers, In re 56 (2), 131 (5), 308 ey
489 (12), 616 (3), 1014 (3)
Cormick vC. 806 ©, 906 (16), waz og
Cormicks, In re - 83 (3
Cornwall, In re "76 (6), 638 (6),
1139 (6)

Cornwall’s Estate, In re sa 1000 (1)
Cornwalls,In re 367 (3), 1173 (4), 1238 (4)
Corr v C. zt 688 (12), 859 (1)
Corry v Lord Cremorne ... 398 (1), 669 (1),
1241 (7), 1255 (3), 1829 (5)
386 (3), 653 (2), an

1
Cosby v The Earl of Ashtown 252 (1), 262 (2)

Corsellis v C.

 

Cosgrave v Gannon 1062 (2),
1067 (10)
v M‘Donnell 874 (5)

Costelloe v Burke 175 Oy 1004 8, A (2)

 

 

Costello v Elliott 40 (14)
v Hunt 136 (@)
v Jones "1005 (2), 1063 (15)

Costellos, In re 502 (22), 1018 (8), 1084 ¢12)
Costelloes v Cantwell . 830 (8), 332 (2),

1030 (2)
Cotes v Hassard and Wife ... 1072 (5
Cotter »v Murphy 1013 @
Cottingham v Whyte , 953 (10)
Cottrell, In re, ex parte Smythe 119 (5),

174 (5), 1232 (11)

4 (7), 901 (12), 988 (25
151 (3), 152 (3), 159 (D,
877 (8), 1007 (7), 1289 (1)
v Gallagher 56 (4), 199 (8), 293 (8)
v Parker 234 (4), 346 (2), 545 (4),
1287 (65, 1334 (3)

85 (7), 370 (99, 1237 (6)
859 (3), 888 (4), 1210 (9)
569 (4), 875 (3), 917 C1),

Coulson v Williams
Courtenay v C.

 

 

Courtney, In re
v Stock
Cowan v Rankin

 

 

 

1043 (7)
Cox v C, 501 1 ©, 1084 (3), 1110 (3)
v Leigh 1281 (3)
v M‘Namara 878 (4), 1082 (5)
Coyne v Shearman ... 494 (9)

Craig, In re 82 (7), 108 (2), 110 (8),
471 (3), 1229 (1)

494 (5), 496 (1), 948 (1),
1006 (3), 1074 (11)
Crampton v The Bishop of Meath _671 (9),
698 (8), 700 (1), 704 (2), 1335 (1)
Crawford v Chaine ... 1060 (6)
, Ex parte 1121 ®, 1285 (12)
ed Kernaghan ... 612 (9), 805 (10)
v O'Sullivan 111 (5), 112 (2), 889 (2),
920 (2), 925 (12)

366 (12), 834 (1
958 peta 1019 (103
943 (3)

Cramer v Griffith

 

 

 

v Pilson
v Scott
Crawley v Flood

 

 

 

 

 

[NAMES OF CASES.]

Creagh v Blood or 287 (8), 314 (7),
516 (8), 526 (2), 609 (2, 8), 618 (1, 3),

920 (6), 1020 (15), 1131 (4)
v Carmichael. 981 (3), 984 (10), 981 (7

 

 

 

v. 159 (3), 323 (7), 378 (1),
904 (8), 1201 (4, 1877 @
—_,Inre
v Mahony eee 792 (8), 1354 )
-—— Crean, In the Goods of 797

Creed v Carey 297(8), 629 (6), 637 (7), 1190 33
. 57 (6), 162 (4), 266 (3), 502 (8),
565 (2), 568 (5), 830 (2), 932 (14),
1018 (4), 1022 (2), 1026 (6), 1084 ey
1101 (7),1169 (3), 1202 (4), 1826 (5),
1368 (4), 1888 (3)
v Moore 830 (3), 1026 (7), 1068 (6)
Cregan v Cullen 962 (8), 1246 U1), 1835 (8)
Ry.

—— Vv

 

) | Cremen, Ex parte, v Gt. S. & W.

 

 

 

Company 880 (8), 1167 (6)

v Hawkes 267 (8), 470 (9), 479 (3),

674 (1), 1055 (8)

v Johnson 508 (8), 624 (5), 634 (4),

1085 (9)

v Howroyd ... 10938 (11)

Cripps v Villiers 1409 (5)

Crofton, Lord v Bunbury 457 (8), 1057 (14)
, In re 329 (1), 334 (1)
Crofts v Allman 680 (8, 9), 707 (1)
v C. 928 (9), oll (12)
v Lord Egmont. 784 (7D, 952 (10), ee (6),

 

 

 

 

—— v Feuge ..28 (4), 652 (1), 1236 (3)
v Hewson 596 (3), 1065 (2)
v Mitchell 686 (2), 818 (15)

 

 

1073 (18),
1255 (4)
Croker v Orpen we 24 @ 36 or ), 180 (4),
131 (8), 149 (1), 491 (1), 514 (1)
Croly v O’Callaghan 418 (6), 870 (8), 925 (5),
1328 (1), 1881 (1)

366 (7), 1060 (89, 1209 (4)
433 (5), 834 (8), 836 (7),
1117 (9), 1207 (9)

v Poe 450(5), a (20), 901 oy
1

Cromie v Peyton
Crone v O’Dell

 

 

Cronin v M‘Carthy 962(12), 981 a 1088 (8)
v Murphy 695 (3), 809 (6), 858 (7),
1017 (14)
v Roche evs 760 (2
Crook v Ingoldsby ... 1289 (8
Crooke v Edwards 929 (3

Crosbie, In re “484 (6), 613 (15), 873 (6),

 

v Molloy 954 (1), 1816 es
v Thompson 833 (12), 914 (10),
922 (6), 927 (6), 928 (2), 938 P

 

Crosfield, Ex parte, In re Henry 637 (1)
Crossley v Andrews 1023 (7), 1048 (16)
Crosthwaite v Meg 1027

7
Crotty v C. "86 (11), 403 (8), 479 Cr 3
Crowley v Flood... 936 (10), 1258 (2)
Crozier v C. 274 (1), 278 (6), 288 (8), 741 (2, 3),
751 (1), 766 (1), 1353 (4), 13864 (59

v Philpott ... 888 (12), 1042 (15
668 (3), 935 (1), 936 Qn)

 

Cruise v Clancy

937 (5), 939 oe
vShiel 669 (7), 781 (10), 805 (16
Cuffe v Banin 1075 (2
vc. "8 (15), 325 (5), 327 (8),
418 (2), 676 (4), 1006 (4)
Young 862 (9), 871 (3), 885 (5),

 

891 (14), 901 (11), 972 (1), 1110 (7),
1112 (2)
[NAMES OF CASES.]

Cullen v The Dean and Chapter of

Killaloe 1015 (11), 1086 (3)

—— v Leonard 538
Cullen v Nicholson 786 (11), 1010 25
Cullin’s Estate, In re 184 (6), 218 (4),
292 (8), 1184 (4), 1322 (4)
Cully v Lucas 1085 (14)
Cuming v Taylor 681 (2), 695 (1), ie (5),

1231

Cummins v Adams 596 8), 671 m, a i

 

 

 

 

 

vu
vC, “171 (8 182 (5), 188 (8),
320 a 322 (1), 335 (3), 336 cy
661 (1), 1235 @, 1291 (8)
, In re 1033 d
Cunningham v C. “426 (1), 429
v Hume 1108 (2), 1810 5
v M‘Cambie 793 (10
Cunnyngham v Hume 1268 (1)
Cuppage v Atkinson 1053 (11)

Curran, Re
Curreen v Walsh
Currigan, in the Goods of

. 92 @§ 97 (5), 856 (12
1 1038 vat

 

 

Curry, In re BL é 04 (3), 97 (9)
142 (, 659 oy 661
Curtin v Darcy aes - 710 i
v Jellicoe... 69 (4), 1294
Curtis v C. 1022 (14), 1044 (5), 1119 (ts
vD’Arcy 112 (8), 1 1017 (1), 1030 (7)
Custis v C. 727 (11)
D.
D. R., In re 86 (9)

D’Alton v Lord Trimleston 52 (1), 559 (2),
892 (7), 946 (8), 949 (3), 952 (8),

1021 (3), 1054.(10)
D’Arcy v Beytagh 676 (6), 680 (5), 699 (7),
700 (25, 702 (3), 1128 (4)

 

v Burke 7 (1), 8 (2), 10 (5), 176 (2),

869 (4), 956 (5)

— v DA. 1027 (6), 1030 (1)
v Sherr 794 (9), 1018 (8),

 

1022 (5), 108i (4), 1088 (13)

Dalton v Barry 488 (8), 521 (4)

 

 

v O’Beirne 1355 (4)

Daly v Aldworth 310 (4), 1365 (6), 1880 ©,
5

v The Attorney-General 122 (8),

858 (10), 1378 (2)

 

 

v Blake 467 (8), 687 (1), 1222 (9)
» Burke 855 (6), 874 (4), 916 (16),

943 (13), 1043 (3)
v ne 23 (3), 45 (5), 802 (5)

 

oD . 684 (5), 883 (8), 912 (5),
"1052 (2), 1208 (7), 1842 (6), 1405 (3)

v Dublin, The Archbishop of 248 (2),
984 (3)

v Duggan ... 35 (6), 88 (7), 518 (2),
780 (2), 781 (6), 805 (12), 906 (6)

 

 

 

 

 

 

v Kirwan ... 165 (8), 593 (2), 688 (9),
700 (4), 707 (4), 712 (4), 714 (2),
721 (8), 723 (2), 863.(9), 893 (99,
1035 (2)

v Lynch 706 ®, va » 1224 (5)
—, Re ne 856 (11)
— v Toole 481 (12), 1125 a

v Wade 720 (6), 727 (4), 936 (13)
Dalzell v D. 304 (0) § 343 (,, ie gy
Daniel v oe 2 (14)

v D. 036 (12)

 

Darcy v Croft ... "380 (6), 409 (1), 1293 (6)

2) | Darling v Marsh
5) | Daunt v D.

 

xi

118 (2), 994 (10), 1002 (7)

341 (3), 379 (1),
387 (5, 7), 888 (1), 465 (15)
os ee 1080 (6)

Darcy, In re
v Maddock

 

Darley v Hunter f

, In re 288 (4), 1301 (7)

v Nicholson 833 (11), 844 (10),
876 (5), 887 (3, 7), 971 (1), 1013 (7),

29 (2
1128 (3), : @) 405 (6), on (4)

 

 

Dartnell v Taylor
330 (5), 562 (4), 1392 &

Davidson v Armstrong 1005 (5), 1073 (8

 

 

 

v Langford 1063 (12), 1221 (1

v Woods ... 1042 (2), 1044 (11, 14)
Davies v D. 359 (1), B63 (10), 807 (39,
980 (11), 1335 (3)
v Fitton ‘195 (8), 507 (11), 511 (2),

518 (6), 922 (14), 1250 (4), 1261 (11)

, In re 207 (4), 261 (1)
Davis v Cotter 394 (9), 1073 (14), 1088 oe
, In re the Estate of ... 94 (7)

"y Fitton 3 (2)
v Nolan 481 ae ew s ),

v Rowan 11 (8), 360 (9), 633 (9).000 G)
Davison & Torrens, In re oe 6, 10

 

 

 

 

 

1209 (13) “S61 (i)

Davoren v Collins 51 (5), 57 (2), ae (7),

 

 

73 (16)
Dawson v Tabor eit (5)
Day, Re es TT (5), . a 4)
, In re 2x9 (6
v Ponsonby lil (12), 888 38 (185
De Burgh v Chichester te 1216 (6
De Bury v Cooke 697 (7), 779 (BS

De Chabot’s Estate, In re... 995 (4)
De Moleyns’s Estate, In re ... 998 (3)
De Montmorency v Devereux 7 (8), 8 (4),
15 (8), 48 (1), 182 (3), 923 (3),
356 (4), 857 (2), 674 (9), 882 (4),
854 Oy 857 (6), 875 (10), 1133 z
07 (8)

v bea “a 458 (1), 1085 (13)
De Morin, in the Goods of 1039 (7), 1048 (15)

v Henry a 822 (6), 1010 (4
DeVecuxs Mary $14 @, 534 (6), 1306 £53
Dean v Donovan... 1087 (12)
Dease, In re “67 (5), 1205 (7)

v OReilly... 1079 (2)
694 (4), 962 (2), 967 scat
1026

 

 

 

v Plunkett

 

 

Delacherois v 14 (1), 786 Gy
830 (1), 1052 (11)
v Wrixon 881 (8), 1080 (8)
Delacour v Freeman 226 (1), 251 (3),

450 (8 550 (5), 900 (4), 1144 (1)

 

 

, In re . 101 (4)
Delahoyd, In re és "85 (6), 108 (7)
Delande v Delahunty 657 (3)

Delany v Doolan

v Kirwan
Delap v Hall
Delmege v Walter
Dempsey v Vincent
Dennehy’s Estate, In re

ts 781 (7), 805 (14)
71 (8), 709 (8), 1029°(35
cf 1358 (5)

os 1082 (9)
199 (2), 530 (6)

273 (2), 281 (2),
1365 (4)

“=. 1017 (195
431 (2), 433 (3)

730 (3), 744 (4

759 (6
754 (8), 968 (1)

 

Dennis v Deane
v Frend ‘
Dennis’s Trusts, In re

 

Denny v Busteed
‘xii

Denny » The Duke of Devonshire 246 a
1

515 (2), 1250 (7, 8), 1260
1257 (5, 6), 1251 Cb, 1262 ®,
v O'Connell .

 

Derinzy v Turner... ve 1839 (e]
Derry Cathedral, In re the Pews of 246 (5),

Desmond, In re
Devereux’s Estate, In re

998 (9), 1116 (2
Devisee of Fitzgerald, In re..

1130 (1
866 (11), 1285 (10
624 an3

 

 

 

Devlin v M‘Carthy . 890 (5), 1046 (3
Dickie, In re 109 (11), 779 (13
Dickson v Caulfield oa 845 (10)
, Ex parte, In re Vogan 92 (3
'y M‘Master ... 659 (1), 983 (4
Digan, In re 82 (1), 82 (3
and Hird, Re 88

Digby v Brown 884 (7), 1111 (12)
v Irvine} 385 (8), 1069 (4)
Dilapidations of St. “Patrick’s (Dub-

 

 

 

 

8) | Doran v Carroll

[NAMES OF CASES.]

Donoughmore, Lord, v Cataneo 916 (1),
921 bn 8 934 (15), ee oo
Donovan v Bissett .

 

 

 

 

 

, Re... a ‘
v Rogers ee 451 te
v Sweeny 509 (9), 1052 (8
Doolan v Blake ae 384 oe 385 (10
, In re 538 (1), 611 (3), 613 Ws
872 (9), 1075
v Tibeaudo ... 844 2
v Smith

 

295 (7), ‘314 (8), 1888 (7
Dooley v Harding ... 613 (8), 1028 (12
Dooleys Minors, In re 1060 (9
Doonerv D. 4 (9), 11 (4), 395 (11), 825 (14),
901 (14), 917 (14)
434 (8), 1080 (3), 1106 (1)
478 @ 4 494 (3), 1885 (8)

Dooley v Power

 

v Everitt
Dorcus v Dogherty .. 1398 5
Dorman v D. 984 (5), 1088 (11), 1835 (8

 

lin) Deanery House, In re the 246 (7), | Dorset, The Duke of, v Crosbie 1005 (10),
1335 (7) 1083 (9

Dill v Brown... 709 (1), 719 (2), 853 (6), | Douce v Reed 868 (6
860 (2), 888 ) Douglas v Allen 205 (10), 210 (3), 1974 (4),

R. & D., Inre. 3) 82 (3)
Dillon v Blake “276 (4), 76 5) v M‘Causland “590 8
v Cruise 593 &S 3) | Dowdall v Hewitt 244 (2
vD. 285 (5), 422 (1), 443 (3), i Ae Dowden’s Trusts, In re 1032 (7)

54 (6) | Dowden v The Commissioners of Ch.

 

vu M‘Carthy 381 (3), 633 (4), see (10),
869 (10
Dillons, In re 795 (8
Dimsdale v Robertson 63 (3), 63 (5), 64 (3),
130 (1), 168 (7), 264 (2), 478 (6
Dixon v Rowan 550 (7), 618 (6), 1398 (8
Disney » Taaffe 476 (3), 675 (1), 699 (9),
1222 (3), 1257 (1)
Disputed Adjudication, In re 88 (5), 90 (1)
Dobbin v Adams —_ 372 (2), 920 (4), 1055 (11)
Dobbyn v Adams _ 131 (6), 616 (5, 6), 767 (1),
786 (8), 951 (3, 13), 1092 (5)
v Comerford .. 624 (9), 1203 (5)
Dobson, In re 78 (2), 80 (5), 1047 oat
1228 (11
644 (2), 1246 (4)

 

Dockrell v Findlater...

 

v Dolan ...247 (1), 489 (), ae Aa
Dodd, In re 8 3)
Dodds v D. 271 , 431 (1), 1879 Sh

 

O4 (2)

Dogherty v D. 814 ees 1019 (2), ie (2)
Doherty v D. 951 (2)
, In re 82 (5)

 

’y The Wat. & Lim. Ry. Co.
44 (4), 701 (9), 1167 (8)
309 (8), 812 (6),
910 (16), 1151 (1)
161 (10), 469 (2),
637 (8), 996 (2)
Donald v Scott Pe . 87 (6), 522 5)
Donegal, The Marquis of, v » Greg 16 (1),
133 a > 350 (4), 511 (8). 514 (2, 3),
570 753 (3), 766 (8), 938 (9),
1018 (23)

v Layard 1247 (5
Donnelan v EIaee a 795 (6
Donnell v Church "781 (5), 966 (7
Donnellan v Wallace w 914 (8
Donnelly v M‘Clintock v4 328 3

Donohoe » Conrahy 259 (5), 677 (6), 781
9238 (2), 1270 Ce

Dolphin v Aylward ..

Domville, Ex parte ...

 

) | Downes v Hogan

 

 

 

Don. & Beq. _ ...845 (5), 353 (6). 506 (6),

544 (3), 1833 oe

Dowell v Burke «579 (2), 586 (6), 728 (8)

oD. cs oes 1294 3
Dower v Roxane 1018 (21

v Walsh 838 (3)

Dowling v Belton “I81 (2), 806 (3),
395 (5), 640 (1)
... 80 (5), 526 (3), 668 (9),
920 (9), 1049 (6), 1304 (4
Dowling’s Trusts, In re 736 (2), 1190 (2
Down, Connor, and Dromore, The
Bishop of, v Miller
, v Potter

 

v Legh

244 (1)

= 244 (4)

3 867 (6), 872 (8)

359 (2), 364 (6), 803 (6),

807 (5), 847 (8)

Downshire, The Marquis of, v Tyr-

rell 834 (5), 836 (4), 802 a 1059 Oe
Doyle v Callow ate 1), 710 (5),

798 ‘Ay bi (2, 3)

v Dumoncel 374 (5), 692 (9), 713 (9),

816 (1), 873 (14), 1292 (1), 1300 (5)

v Leary 868 (9), 875 (4), 1043 (8),
1045 (17

..832 (3), 861 (7), 889 @

 

Downing v Hodder 7

 

 

Drake v Ford
Draper v D. 1381 (1), 1407 (6
, In re 1041 (7)
Drew v Lord Norbury “O11 (2), 229 (6),
291 (4), 488 (3), 539 (5), 585 (8),
599 (2), 608(1), 1160 (2), ay a)

 

Drewitt v D.

Drinan v Mannix 401 (4), 840 (17), as. oS
1047 (12), 1123 (6

Driscoll v Blake 208 (2), 778 (10), 1078 (6

ee In re the Charity Estates
125 (2), 1288 (8)
oarrels The Marquis of, v The Gt.
8.&W.Ry.Co. 846 (2), 1165 (7), 1225(10)
Drought v Jones . 57 (5), 181 (7), 581 (4),
668 (7), 781 ) 899 (3), ’1096 &
1116 (6), 1247 (1)
[NAMES OF CASES.]

Druitt v D. 949 (8)
Drummond » The Att.-Gen....121 (2), 124

———vPonder... Ba 1202 2
Dublin Corpn. Waterworks, In re 66 (8),

1038 (5), 1226 (5), 1247 (2)
Dublin, The Archbishop of, v Lor'

Trimleston 137 (1), 259 (2), 260 (6),

346 (4), 470 8

149 (4), 152 (2), 208 (3

1051 (1), 1088 (5)

Duckett v Gordon
Dudgeon v Bowen

 

 

v Corley 669 (6), 783 (8),
882 (8), 1800 (1)
v O’Connell ... 179 (6), 207 (2),

——vGormley ... 865 (2
Duffy v Johnson... 672 (11), 941 (12
Duggan v Kelly 416 (2), 555 (7), 616 (2),
688 (8), 1178 (3)

Dumoncel v D. . 48 (3), 233 (2), 292 (2),
315 (2), 375 (6), 614 (3), 966 (11)
Dunally yD. 1376 (3), 1885 3S 1407 (9)
Dunbar, Inre —465 (10), 479 (1), 1252 (4),
1265 (8)

1167 (2)

438 (2), 1134 8

Dundalk and Enniskillen oe Co.,
The, In re as
v The Ulster Ry. Co... 1167 (10)
Dundas v Blake li (8), 587 (7), 594 (4),
889 (5), 935 (5), 985 (7), 1049 (8),
1266 (2)

 

Dungannon, Lord, v Smith ... 1378 (4)

Dunlevie v Hort . 76 (3), 332 (7), oe A
31 7

Dunn v Massey 1068 (10)

Dunne v Doran "11326 (2), 580 (2), 602 (3),

699 (6), 701 (10)

 

 

v Doyle 374 (2), 689 @, o (6),

79 (16)
, In re 701 (7)
v Roche ‘374 (7), 713 (12)

 

Dunsany, Lord, v Dunne 873 (11), 982 (6)
Dunscombe, In re 797 (6), 1027 (iby, 1232 (5)
Dunster v The Earl of Glengall 119 (6),
174 (6), 637 (6), 1232 (18)
Dwyer v Baker 696 (4), 812 (3), 1124 (7)
Dwyer v Bessonett . ves 561 (4)
Dwyers, In re a 240 (1), 1184 (2)
Dyas v Cruise 92 (2), 404 (9), 445 (10),
517 (8), 519 (38), 742 (4), 753 (25,
1062 8), 1133 (1)
Dycers v Goulding

799 (5)
Dyer v Bessonett

-.-304 (2), 566 (2), 681 (5),
1390 (8), 1398 (8)

E.
Eastwood v E. 3 1044 (11)
Ecclesiastical Commrs., The, v
Armstrong 247 (5), 1234 (2),
1250 (5)

 

, The v. The Dean and Chapter

of Kildare = 244 iB

, Lhe v Delmege 243 (2), 1228 (4
, The v The Marquis of Sligo 589 (3),
1174 (8)
474 (3), 574 (4)

186 (1), 395 (13),
897 (1), 1106 (3), 1180 (7)

 

 

Edge v Billing
Edgeworth v E.

 

 

’s Estate, In re Davis 4
’s Estate, In re 461 1, a cas 8, 8
7,8

 

’s Estate, In re Goodyear wr (2)
Edie v Babington 329 (2), 331 (4)

 

xiii

Edington v Bloomfield 173 (8), 267 (4),
1141 (1

Edmonds, In re 986 (2
Edwards v Backas soe 1104 (9
v Plunkett 1018 (12), 1117 (1

 

 

’s Estate, In re 353 (5), 624 (10
Egan v Doherty aes 857 (4), 1261 (5)
v Heenan 483 (6), 675 (11), 698 (9),

701 (2), 707 (7), 1117 (105, 1258 (4)
v Mulholland 180 (7), 454 (5),

 

 

 

1066 (7
v Nolan 361 (10), 793 (38
’s Estate, In re 1001 (8

 

372 (7), 466 (3),
630 (6), 922 (8)
170 (9), 172 (8), 830 (3, 4),

580 (3), 1083 (3)
419 (1), 889 0

1052 (8), 1388 5
205 (3), 693 (1),

Egmont, Lord v Darell
Ellard v Cooper

Elliott v Tynte
vE. ...
vk.

v Kempston

 

 

 

 

 

 

811 (1), 1272 (5
v Osborne 809 (10), 858 (8
Ellis v E. 563 (2), 1873 (1
v Fawcett «. 1124 (10
oe 1259 (4, 5), 1262 (7)
—., Re

95 (7), 494 (11), 1230 ae

1240 (3)
v The Lord Primate 43 (1), 114 (6),
208 (4, 5, 6), 263 (8), 516 (4, 5),

523 (7), 524 (1)
Emmet v Marnane 10253(5), 1226 (6),
1242 (6)
328{ (8), 332 (4),
901 (4
627 (4), 836 (6), 869 (6)
ae oe 1116 (6
v Smith 158 (5), 1199 (1)
Enraght v Fitzgerald 417 (2), 909 oly

910 (2), 1010 (7), 1091 (4), 1099 (115,
1309 (2), 1831 (7)

 

England v Donnellan

Ennis v Brady
v Casey

 

 

 

 

v Haughton 284 (3), 508 (2),
920 (5), 1131 (3
v Mahony 824 (15

Erskine v Baker

"798 (5), 882 (1
Esmonde v Cooke

905 (2), 907 (15),

 

1238 (7)
vE. a 894 (12), 968 (8)
Espinasse v Luffingham 312 (1), 766 (6),

1176 (1), 1364 (3)
Estate of Aldborough, the Earl of, In re

512 (2)

- 1092 (6)

733 (2), 1200 (25

812 (4), 822 (8),
997

214 (5), 278 ay
380 (3), 1330 (45

Estate of Ashe, In re
Aylward, In re
Balfe, The, In re

 

 

 

Bayley, The, In re

 

 

 

 

Bayly, The, In re 574 (7, 10),
1219 (1), 1220 (2)
Beecher, The, In re 1026 (15)
Bennett, The, In re 462 (5)
Blackley, The, In re 995 (11)

 

Blake, The,Inre 38 (3), 201 (2),
523 (1

397 (8), 1248 (4

 

Blood, The, In re
Boate, The, In re 163 (9), 728 (4
Bodkin, The, In re 891 (2), 452 (4),

591 (5), 931 (15), 1002 3

 

 

 

Bracken, The, In re 1212 (6
Browne & Beytagh, The, In re 588 (5)

 
Xiv

Estate of Browne & Blackie, The, In
re 1002 (3)
Browne, The, Inre 1002 (1), 1160 (8)
Browne, The, In re 92 (8), 354 (3),
407 (1), 448 (7), 1001 (9), 1108 (6)
Brownrigg, The, In re 22 (6),
788 (15), 1003 (1, 8), uot (0)

Burke, The, In're 294 (3), 469 (4),
625 (1), 999 (11)

 

 

 

 

 

Burmester, The, In re 268 (2),
1000 (9)
Butler, The, In re 592 (8), 607 (2)

 

 

Campbell, The, In re 279 (3), 577 (7)
Carew, The, In re ase 458 (2)
Cassan, The, In re 60 (8), J a ee

151 (2), 205 dy
317 (5)

se 1107 (1)
433 (2), 552 (2),
1850 (6), 1394 (4, 5)
Clements, The, In re 205 (2), 1114 (1)
Collis, The, Inre 1109 (1), 1818 (4)

 

 

 

Clancy, The, In re

Clare, The, In re
Clegg, The, In re

 

 

 

 

 

 

Comyns, The, Inre 60 (7), 468 (8),

1096 (9), 1247 (8)
Cooper, The, In re 1021 (2)
Cornwall, The, In re ... 1000 (1)

 

Cullin, The, In re 184 (6), 218 (4),
292 (3), 1184 4, 1823 (4)

 

 

Davis, The, In re 94 (7)
—— De Chabot, The Inre 995 (4)
De Moleyns, The, In re. 998 (3)

 

Dennehy, The, In re 273 (>| oe LO

Devereux, The, Inre 998 (9), ine oy
1211 (3)
Edgeworth, The, In re Davis 1000 (4)
Edgeworth, The, In re 461 (1, 3),
638 (5, 8), 1244 (7, 8)
Edgeworth, In re Goodyear 461 (2)
Edwards, The, In re 3538 (5), 624 Ca
Egan, The, In re eee 1001 (8
Feehan and Sheehan, The, Re
101 (9), 1137 (7)
Fenton, The, Inre 998 (8), ee oe
Finlay, The, In re ate 99 (2
Fitzgerald, The, In re 95 (2), o13 »)s
406 (7), 460 (6), 1818 (1), ae (5)
Fitzgerald, The, In re 61 (5),
688 (3, 9), 1545 (1)
228 (2), 462 Ot
463 (4, 5) 469 (7), 513 (2), 650 (2),
919 (6), 937 (2), 1001 (2)
Foley, The, In re 656 (7), 1245 (8)
Frend, The, In re 214 (1), 276 (1),
432 (2)
275 (4), 575 (7),
1361 (6)
452 (6), 639 (1),
1245 (8

Given, The, In re 215 (4), 315 (4
Glengall, The Earl of, In re
639 (7), 999 (7), 1407 (3)
Goold, The, In re, © 595 (2), 1001 (5),
(1089 (8)
592 (2), 679 (8),
1329 (6
Green, The, In re 265 (6), 750 (1),
761 (3), 1003 (1), 1180

Grispi, The, In re : 203
Gyles, The, In re 272 (1), a7 ck

 

 

 

 

 

 

 

 

 

 

 

 

Flood, The, In re

 

 

 

Frew, The, In re

 

 

Gerrard, The, In re

 

 

 

Grady, The, In re

 

 

 

 

 

[NAMES OF CASES.]

 

 

 

 

 

 

Estate of Hamilton, In re 1106 (4)
Hammersley, The, In re 160 (1),
218 (3)
Hawkesworth, The, In re 887 (11)
Hayes, The, In re 1115 (6
Hoare, The, In re Ps 995
Hughes, The, In re 60 (5), 994
Humble, The, In re... 461 7
—— Hunt, The, In re ae 995 (5)
Irwin, The, In re 1108 (4), 1317 te

 

60 (6), 151 (7),
166 (4), 317 (2)
303 (2), 734 (3),
991 (10), 1148 (5)
Johnstone, The, In re 787 (11),
993 (3), 1000 (8), 1003 (9), 1092 u3y
1216 (1), 1287 (2)
Johnston, The, In re 660 (3), 698 (7
Joyce, The, In re 628 (6), 1001 3
Kearney, The, Inre ... 998 @

 

Jackson, The, In re

Jones, The, In re

 

 

 

 

 

Keily, The, In re ae 631 (1)
Kelly, The,Inre 1003 (5), 1219 (2)
Kennedy, The, In re 91 (7), 95 (5),
787 (10), 996 (5), 998 (10), 1003 (4)
Kingston, The Earl of, In re
997 (12), 483 (6
533 (7), 1001 (6
3)

 

 

 

 

 

Knox, The, In re

Lane, The, In re 999 (6), 1157

Lawder, The, In re 262 (4), 1148 (2)
Earl of Limerick, The, In re

461 (9), 995 (10)

Lynch, The, In re 469 (6), 997 (1)

—— M‘Alister, The, In re 674 (7), 833 (9),

1003 (7), 1209 (11)

— M‘Auley, The, In re 996 (1)

— M‘Donnell, The, In re 563 (1),

1359 (2)

—— M‘Kenna, The, In re_ 18 (9), 158 @

 

 

 

 

788 (2), 927 (3), 1000 (7); 1010 ¢4),
1148 (5), 1149(6), 1194 (6), 1277 (3
1295 (4), 1298 (5)
——— M'Neale, The, In re 275 (2), 277 (2),
278 (2), 1862 (1)
298 (1), 826 (7),
328 (3), 485 (9)

 

Massey, The, In re

 

 

Matthews, The, In re ... 1380 (5),
1406 (17)
Moorhead, The, In re 469 (1),
1108 (5), 1317 (7
— H. Morrow, The, In re 1000 (2

— Morrow, The, In re 229(1), 462 (2, 4),
623 (2)

1033 (3

281 (3), 578 3

298 (2), 733 (4),
736 (6

 

Murphy, The, In re
Nesbitt, The, In re
Norcott, The, In re

 

 

 

— O'Callaghan, The, In re 1209 (9)
O’Dell, The, In re 302 (6)
— O’Donel, The, In re 1392 (6)

Otway, The, In re 1108 oe 1317 (8
Parkinson, The, In re . 636 (6
Pell, The, In re sie 1001 (7)
Piers, The, In re 110 (7), 228 (4),

650 (4), 1329 (8)
— Pilson, The, In re

ae 461 (10
Plunket, The, In re 924 (4), 13882 os
Power, The, Inre 460(8), 638 (4, 6),

791 (7), 1244 (6)
Power, The,Inre 461 (4), 1238 (4)
Power, The, Ex parte, Taylor

460 (9), 934 (12)

 

 

 

 

 

 

 

 
{NAMES OF CASES.]

 

 

 

 

 

Ex parte Rea, The, In re 786 (2
Reilly, The, In re 787 (8
Read, The, In re 1000 (5
Roche, The, In re 999 (5)
Roddy, The, In re 629 (3),
1148 (3)
Rogers, The, In re 994 (9)

Heres. The, Inre 356 (1), 478 (6),
995 (9), 999 (10), 1116 (1), 1211 (7)
Rorke, The, In re 214 (6), 219 (5),
220 (5), 231 (3), 265 (5), 272 (25,
355 (4), 645 (2), 650 (3), 996 (4),
1150 (4), 1158 (1), 1160 (7)
Sadlier, The, In re
Scott, The, In re

 

 

 

a 911 (1)
294 (2), 459 (5),

 

 

 

 

1001 D, 1108 (3), 1150 (1),
1161 (3)

Sheehan & Feehan, Re 101 (9),

1137 (7)

Shortt, The, In re 579 (6)

Sleeman, The, In re 239 (6)

St. George, The, In re 298 (3),

 

734 (1), T47 (2)
— Stirling, The, In re 997 (11), 1106 (6),

 

 

1285 (14)

Taaffe, The, In re 151 (8), 414 (7),
1834 (2)

Thompson, The, In re 276 (2),

576 (8), 1862 (4), 1881 (4)
Tibeaudo, The, Inre 18 (10), 534 (4)
Tottenham, The, In re 45 (1),
462 2 Ox 529° (1), 996 (3), 998 ty
1330
Turner, The, In re 509 (8), 591 (4
——_— Ussher, The, In re tee 1002 (2

 

 

 

 

 

 

Wall, The, In re ate 998 (13)
Walsh, The, In re 185 (6), 998 (4
Wrixon, The, In re 60

4), TAT (5
4), 584 (3
1064 (12

Evans v Bagwell 421

v Blennerhassett ave

v Cassidy 50 (2), 128 (4), 234 (1),
653 (1), 1056 (. 1072 (3), 1225 (7),
1234 1}; 1246 (

218 8 450 1143 (3)

 

 

——2

 

 

 

 

v Holton 713 (11), 801 (9
v Norcott 501 (11), 1084 (2
v O'Dell 365 (6), 1013 (11)
v Taylor 1005 (8), 1073 (11), 1083 (7)

Evans’s Charities, In re 122 (7), 213 (2),
1148 (1)

681 (4), 840 (13),

1011 (4

505 (5), 547 (5),
125

 

Everard v

Ex parte Armstrong

 

6 (2)

——— Banks 1405 (4)
Bank, The Fife ‘ 103 (4)
Barlow 504 (2), 540 (5), 546 (3)

 

 

Belfast Har. Commrs. v Hughes
1224 (2)

 

 

 

 

 

 

 

 

Bernard 251 (7), 468 (5), 750 (3),
1023 (6), 1298 (3)
Lord Blayney 390 (3), 1096 (7)
Booth es 1206 (12
Boughton, In re Bunbury 846 (1
Boyd 483 (10)
Brennan 83 (8)
Bull “679 (4), 909 (6),
1092 (9), 1333 (®)
Carey sais 1206 (11

 

Carlen Re Wilson ...
Chatterton, In re K. Min. Co.

 

79 (5
1414

 

xv

89 (

Ex parte Clarke 1)
460 (1), 480 (5), 647 (7),

 

 

 

 

 

 

 

 

 

 

 

 

Collins
1215 (2), os a
— Cole
Colthurst, In re Barretts 833 (8
Connolly 546 (1)
Conroy es 678 (10)
Coote "370 (1), 541 (2), 873 (5)
Crawford 1121 (6), 1285 (12)
Cremen v Gt. 8. & W. Ry. Co. 880 (8),
1167 nA
Crossfield 637 (1
Dickson ; Vogan, In Te 92 (3)
Domville 161 (10), 469 (2),
637 (8), 996 (2
Ferguson eet oi 84 (2
Fife, The Bank of 103 (4
Fletcher

 

ae 624 (7), 850 3
Gallie, In re Gallie 452 (3
Ginger, In re the Tipperary
Joint-stock Bank 140 (2), 353 (3),
441 (3), 1183 (8)
Gordon v The Belfast & Co.
Down Ry. Co. 880 (9), 1 (7)
Griffith a 24 (2)
Harnett, In re Cork & Y. Ry.

 

 

 

 

 

 

Co. 35 @), 4 43 (2), 469 (5), 1808
Hanks 548 (2), 1087 8
Henchy 754 (2), 1248 (8)

 

Hibernian Joint-stock Banking

 

 

 

 

 

Co., The 97 (3), 177 (1)
Hillis 1286 (2), 1292 (7)
Hilliard ae 1206 (13)
Hodgens +» 13 (1), 72 (4),

284 (5), 439 (4)
Hopkins 1292 (9)
Hughes 931 (12), 1285 (8
13801
—— Hutton . 83 (7), 84 (3), 390 ( ay

 

477 (8), 630 (10), 896 (9, 980 8)

 

 

 

Johnson 93 (2)
Johnstone, Re J ohnstones 368 ),

866 (7)
Kane se 1294 (3)
Kelly 788 (6), 1127 (5)
Kennedy

 

139 (3), 140 (3),
390 (2), 489 (5, 2 441 (2), 993 sty
1165 (4), 1201 (9)

 

 

 

 

 

 

Lord Kinsale we 1405 (5
Kirk, In re Kidd... 1096 (3
Knox 4 505 (1), 509 (4, 5),
546 (6,7, 8)
Leech 30 (2), 393 (5),
482 (3), 1208 (1)
Levy 105 (1)
Taaphal In re Hennessy 483 (9),
612 (2)

 

Lockhart, Lady; Lockhart’s

Trust v.23 (5), 114 (7), 216 (2),
236 (7), 400 (5), 615 (1), 838 (12),

867 (1), 917 (3), 919 (7), 1287 (4),

 

1408 (13)
Mackey, In re M‘Intyre
— M‘Mullen ... 437 (1), 1098 “dos
Magennis 531 (1)

 

 

Irish Consols Mining Co., The,

 

re Banks 140 (1), 1405 (4)

— Needham ite ee 1024 (12)

O’Connell, In re Spread 484 (2)
—_ Orr, In re ’Petticrew se 107 (5

572 (7), 856 (7), 862 (14), 1181 £
xvi

Ex parte Owen 130 (6), bee om 546 if

 

 

 

 

Pasley (2), 467 (1)
Perrier in (8), 440 (7)
Pilkington 18 (6), 25 (1),

155 (1), 535 (2)
Roberts 67 (8), 1206 (4),

1224 (23, 1248 (9)
141 (2), ua Or

— Scull,
J 713)

 

 

Sheil 508 (10), 1175 3)
Shiel 583 (3), 1024 (13),
—— Smyth 318 (2), 397 (1),

735 (2), 746 (4), 760 (3)

Smythe, In re Cottrell 119 (5),
174 (5), 1982 ty

Sneyds ime 80 (9

 

 

 

Somerville ‘508 (8), 545 (5)
—— Sterne 67 (4), 1205 (5)
—— Stirling 140 (4), 442 (1),

788 (16

— Stock 802 (4), 10382 (3

Studdert, In re The Commrs.

of Pub. Works ... 240 (5), 1164 (2),
1228 (5), 1235 (6)

Taylor, In re Power’s Estate 460 (9),

 

 

 

 

 

 

 

 

 

 

 

 

 

934 (12)
Tottenham 611 (7)
Truell 1118 (6)
Tufnell 1294 (4)
Waldron 508 (9), iy ie
— Wall, Wall, In re 58 3
Walsh 101
Warburton... 587 (1
White v Tommey 791 (2), i 3
—— Wilkin ‘ 9 (1)
Williams . one ub a, 3)
Wilson, In re the Gt. S. & W.
Ry. Co. v Rosenthal 473 (2)
Wyse 90 (2)
Eyre v Burmester is 219 (4)
v Dwyer 840 (4), 1120 (2)
v Hollier 777 (4), 858 (5),

 

895 (5), 897 7 2) 209, (2), 1138 (2)

 

 

 

 

v Little 33 (16), 897 (5)
v Lynch 170 ue 1097 (8)
v M‘Donnell a 1076 (4)
=v M‘Dowell 2 (3), 461 (8),
636 (5), 855 (2), 1092 (11), 1160 (6),
1820 (4)
—— v Mahony 841 (1)
—— v Sadleir “27 (7), 297 (5),

299 (1), 317 (4), 573 (2), 1150 (2);
1328 (3)
F
Fagan v F. ... 63 (4), 64 (2), 65 (5),
401 (3

Fahy v Blake 1068 (13

 

aH BE ye “ “109 (1), 415 (1
Re a: 1. 92 (4), 98 (2); 795 (11)
Fair, In re... ~..328 (6), 377 (3), 491 (7),

508 (7), 566 (1
901 (15
"172 (2), 877 LO

Faircloth v Bolton ...
Fairtlough v Ackland

 

v Johnstone ... sis 1598 d
Falkiner v Hornidge... 312 (5), 558 (2),
786 (13), 1092 (10), 1879 (2)

1404 (3)

 

[NAMES OF CASES.]

Fallon v Robins
Fanning’s Charity, In re
Farran v Mercer

25 (2), 81 (8), 33 (2
125 (4), 1288 (3
7389 (4), 946 (11)

 

 

v Morris —_...14 (5), 133 (2), 1053 (4,
1060 (5), 1072 (11)
v Smith... 426 (3), 428 (1), 1367 (1)

Farrell v Gleeson 580 (1), 790 (7), 854 (12),

877 (5), 960 Kes 1179 2)

 

 

 

 

 

, In re 94 (7), 100 (6
v Kemmis es 363 (7
v Murphy 1209 (7
Farrer v Mercer 935 (8
Faussett v Ormsby 1091 (3
Fawcett v Biggs 7 (4), 709 () ae Ba
v F. 930 (14)
v Hodges 2), 72 (5), 440 (2),

676 (3), 699 ay 710 (8), 716 (39,
1229 (1), 1226 8), 1264 (3)

 

v Minchin 14 (9)
FayvF. ... 1061 (5
Feagan, Re... 84 (1
Fearon v F. 251 (5)

Fee v Cobine oF 622 (5), 1806 (8)

ina x and Sheehan, Re the Estate
101 (9), 1187 (7)
Realy v Kilkenny 41 ca 5), 446 (5), 884 (15),
1077 (8), 1098 (10), 1110 (5),

1170 (3), 1319 (3)
Felan v Russell os 120 (8), 124 (1, 8),
162 (5), 1395 (6)
Fenelon v Baker... 405 (8)
Fennelly v Anderson 88 (9), 36 (12),
373 (1), 1811 (2)
Fenton v F. ---209 (4), 694 (2), 755 (5),
798 (1), 825 (12), 1197 (1), 1223 (4)
Fenton’s Estate, In re 998 (8), 999 (12)
Ferguson v Coote 795 (10), 1090 (e
84

, Ex parte...
v Livingston... 54 (2), 586 (1), 701 dy
1224 (6), 1240 ra

 

 

 

 

v Lomax _ ...50 (7), 832 (11), 990 (9
v O'Gilby 562 (3), pa iy 2
v St. He eee

 

Fernie v Maguire ...168 (3), 115 (1, on £3
Ferrall v Boyle . 69 (7), 641 (3), 650 (6)
Ferrall’s Assignees, Inre  .. 7

Ferrar, In re «. 27 (8), 28 (8), na (5),
108 (6), 104 (8), 105 (3), 659 (4, 5),

1229 (7)
Ferrall, In re ae 459 (8)
Fetherstone v Mitchell 248 (3), 260 (3),
296 (1, 2), 572 (6), 680 (3), 1153 (3)
v Moore ...367 (6), 399 (3), 697 (5),
825 (3

os 688 (2), 1075 (4)
...1(9), 779 (14), 867 (12),
1021 (1

Field v Boland... 28 (1), 28 (9), 35 (7),
219 (6), 223 (4), 348 (4), 358 (5),
1306 (4)
v The Earl of Donoughmore 178 (6),
710 (10), 875 (14), 1028 (2), 1382 @
Fife, The Bank of, Ex aE te.. 03 (4)
Figgis v F.. .
Filgate, In re
Finlay v Heeran

 

Fetnam v Kirby
Ffrench v F.

 

821 (1), >, 859 (8)
1. 1080 (13), 1086 (8)
479 OF 852 (2), 862 (8)

— v Howard 1285 (2)
Finlay’s Estate, In re 999 (2
Finn v Gorman 1044 (17

Finney v Pardy 1. 81 (4), 37 (2)
[NAMES OF CASES.]

; 785 (8)
‘416 (3), 429 (1),
1015 fos 1367 (3)

Finnegan v Keappock
Finucane v Studdert...

 

v Turner 5), 523 (4)
Fishbourne, In re 1029 ray 1031 (13)
Fisher v Bunbury sais 839 (7)

v King 853 (1)

 

Fishmongers’ Company, The, v Be-
resford we 8 (1), 8 (12), 323 (1),
495 (1), 979 (7), 1834 (5)
794 (12), 796 (7), 907 (11),
911 (7), 1027 (9)
...700 (5), 704 (3)
574 (9), 1219 %

Fitton, In re

Fitzgerald v Arthure
v Bermingham

 

 

 

 

 

 

 

 

 

 

v Carew ...507 (8), 531 (3)
v Dea ce 1118 (5), 1129 (4)
v Dalton... 70 (5), 445 (2), 454 (10)
uF. ... 183 (5), 723 (8), 881 (1),
.1035 (4), 1079 (4), 1181 (2), 1800 (9),
1279 (6), 1882 (4), 1404 (4)
v Hill Bs 1076 (12), 1081 (3)
v Hussey 497 (2), 667 (1),
876 (3), 941 (8)
v Johnston ... 1082 (10)
v Lane 1095 (8), 1102 (3)
v Massy 657 (1)
v O'Connell ... 56 9), 308 (5), 344 (2),

 

498 (3), 539 (2), 876 (9), 1028 (109,
1148 (4), 1370 (2)

 

 

 

 

v Quinlan ~’... 361 (6), 792 (5), 821 (4),

1120 (12)
v Simpson 366 (10), 1048 (3)
» Sterling 921 (29, 1845 (4)
v Vicars .. 85 (9), 518 (3)

ae 624 (11)
461 (5), 638 (9),
1245 (1), 1818 (1)
Estate, In re... 95 (4), 213 (5), 406 (7),
460 (6), 638 (3, 9), 1244 (5)
Fitzgibbon v Blake ... 884 (8), 387 (11),

Fitzgerald’s Devisee, In re
Estate, The, In re

 

 

 

 

 

877 (9), 888 (9)

v Flynn _01 (4), 507 (7), 1005 (125
Lewis 2 539 (8), 1285 (7)
Fitzmaurice v Murphy 286 (1), 1153 (5)
vSadleir ... 48 (2), 183 (5), 217 (5),

363 (2), 672 (1, 2), 687 (3), 704 (4),
722 (1), 725 (2), 778 (9), 950 (139,
1035 (9), 1115 (2), 1192(3), 1196 (7),
1322 (2), 1842 (8)

Fitzmaurices, The, In re 61 (2), pe ,

27 (2)
Fitzpatrick v Hackett 792 (10), 793 (9)
, In re 1109 (6)

 

Bt (4), 480 (5),

1226 (9), 1868 (7)

362 (5), 803 (13)

5 (7), 12 (2), 901 (10),
1012

26 (4), 89 (©), 617 ne
4 1070 “03

“243 (1), 470 (2),
981 (2), 984 (6)

 

py Knaresborough

 

v Lidwell
—— v Mahony

v Nolan

. In the Goods of
Fitzsimon v Mannix
Fitzwilliam v Moore...

 

 

 

Fivey, Re... 2 ©, 87 (4), 224 (3), 1229 (3)
Flanagan, In re 10 (8)
v Seaver "256 Q), ‘494 (2), sa oe
— v Williams 669 (2), 785 (1)

Flattery v Anderdon... 1538 (3), 844 i
491 (5), 496 (4), 499 (2), 809 (4
879 (6), 1029 (7)

 

 

xvii

1036 (9)

Flattery v Anderson.. ;
“51 (4), 212 (6), 289 (1),

 

 

 

Fleming v F.
"969 (2), 974 (8), 1030 (6)
, In the Goods of ae 1039 (9)
Fletcher v Eley se 1065 i
,Exparte ... 624 (7), 850 (8)
v Steele 455 (8), 889 (15), 1069 2G.
Fleury v Murphy “OBI (7)
FlinnvF. ... aaa 1043 (6)
Flood v The Ear] of Aldborough 1079 (10)

 

 

—— v Bradley 674 (5), 810 (7), 989 (1),
1039 (11), 1042 (3), 1044 (16

v Digby 852 (3), 861 (1), 1863 (2

v Sutton 398 (1), 401 (2), 402 (2),

466 (8), 482 (5), 902 (11), 908 _
Flood’s Estate, In re.. 228 (2), 462 (8),
463 (4, 5), 469 (7), 513 ey 650 (2),

919 (6), et (2), 1001 (2)
Fogarty v Bourke 1051 (11), 1068 (11)
Foley’s Estate, In re... 656 (7), 1245 (8)
Folliott » Evanson ... 810 (2), 1092 (4)

Foot v Lea ... 470 (12), 962 (5), a CR

83 (2)
Foott v O’Callaghan ... 5a (3)
Forbes v Pearson 365 (2), 477 i,

1004

1075 (7), 1085 (4), 1088 an
we -1967 2), 1831 (25

. 25 (8), 38 ©), re (5),

Ford v Head
v Ryan
Forde v Brew

 

 

Forestal v Doyle 0 38 (6
Forrester v Smith 1254 (2), 1854 (8),
1396 (7)

Forster v Murphy 863 (5), 1039 (12)
Fortune v Doyle eae 1017 (16)
v Walsh 778 (5), 779 (18)
Fosberry v Smith ; 304 (4), 744 (1)
Foss v F. 50 (5), 382 (5), 389 (6), 436 (5),

808 52) 1053 3 1087 (7)

 

 

 

 

Foster v Eyres 41 (7)
v Fox ... B04 (6)

—— v Higgins 387 dd), 656 (2), 827 (10),
1019 (5), 1286 (5)

v Hornsby 240 (2), 468 (3), 690 (1),

708 (5), 709 (1), 719 (2), 964 (1

——,Iure ... 85 (3), 997 (10
v Ker ... 630 (4), 632 (2), aa Ae

v M‘Mahon 168 (11), 174 (1), 955 Ss

264 (8), 883 (6), 456 (8), 486 (9),
600 (2), 678 (45, 776 (3), 779 (4),
817 (8), 922 (5), 953 (15) 1025 (13),
1032 (1), 1295 (1)
v Thompson 295 (3), 811 (1), 598 (6),
606 (3), 688 (6), 1388 (5)
214 (3), 516 (1), 982 (4),

 

Fowler v Blakely

 

 

1303 (3)
v Connolly ote 10£7 (1)
vk. ds (5), 132 (1), 168 (4), 463 (3)

 

» Lightburne ~ 41 (3), 204 (29, 224 (4),

271 (8), 1028 (16), 1311 (6)

 

 

 

v Moore 116 (8), 844 (5), 1217 (5)
——, In re, Ex parte Domvyille 161 (10),
469 (2), 637 (8)

Fox v Auldjo 1063 (10)
oF... “73 (5), 738 (3), 1853 (2)
—,Inre ... es 414 (3), “ (4)
——,, Re 253 98 (3
v Wybrants BTL (12), a 9 sO

03 @)
7
xviii

Fozier v Andrews
Frankan v O’Neill
Franklin, In re
Franks v Mason

865 5,81 876 6 (14), 1 1300 @)

one “03

255 (4, 445 (11), 456 (7),
464 (1), f ie (1)

Freehill, In re Lands of ie (2)

Freel v Trant “as eat “3s
Freeman v Burke... 963 (8), 981 (8)
vB. 1121 (10)

 

“21 (3), 368 (10), 935 (2)
119 (8), 174 (9), 798 @),
1146 (1), 1233 (3)

 

v Grady
French v Balfe

 

 

 

 

 

v Billing 387 (10)

v Copinger ‘201 qd), 261 Ch oe ae

v Craig . 13 (8), 72 (4), 12 1

95 (7)

vFE. 372 (8)

v Graham 1294 (2), 1299 (6), 1302 (4)
—,Inre .. 76 (4), 108 (4), 986 (12),

1225 (
v Macale .. 24 (2), 48 (9), 465 (5),

 

470 (4), 671 (2), 888 (15), 975 (8),
981 (4), 982 (7)
v The Royal Exch. Assurance

 

 

Company 414 (6), 874 (1, 2),

975 (3, 5)

St. George Be 424 (6)
Frend’s Estate, In re. 214 (1), 276 nC
432 (2)

884 (5), 998 (7)
275 (4), 575 (7),
1361 (6)

1025 (8), 1228 (6),
"1931 (9

69 (1), 70 (6), 708 (3),
990 (1)

Fuller, In re the Assignee of 995 (1)
Fulton v Creagh 456 (5), 508 (5), 540 (1),
570 (1), 611 (6)

Frewen’s Assignees, In re
Frew’s Estate, In re ...

Fry v Johnson is
Fulham v M‘Carthy

 

 

v D’Orsay 360 (14), 682 Of sg (9),

9 (13)

—— v Farran 119 (2), 174 (2), 1383 ee
v Farrant

Furlong v Bateman ... 454 (11), 1088 vs
and Shields, In re . 84 (9), 88 (1)
Fyan v Henry 238 (5), 376 Or ea  ),

01 (3)

 

G

403 (5), 467 (13), 484 (1),
1092 (15, 1228 (7)
699 (5), 1288 (10)
850 (1), 1378 (7),
1405 (7)
Gaggin v Upton : 206 (4), 409 (2)
Galbraith v Cooper ... 345 (1), 487 (4),
499 (6), 541 (4), 938 (9)

Gallie, In re

102 (4), 452 (3)
Galligan’s Goods, In re 1041 (5)
Galway v Barron

G—, In re

Gabbett v Lloyd...
Gaffney v Hevey

113 (18), 908 (2), 957 (7),
1051 (4), 1072 (1), 1091 (6)
112 (5), 889 (3),

959 (4)

 

v Graydon

 

v O'Driscoll ... an 946 (15)
Galwey v Baker 1222 (2), 1250 (1)
Gamble v Robinson ... 113 (9), 851 (4),

866 O, 868 (10), 1043 (5),
1045
— Williams uae 728 (1), 1044 (7)

2) | Garvey v Hayes

 

[NAMES OF CASES.]

68 (3), 127 (1)
211 (8), 270 (4), 829 ae
Gardiner v Blesinton 230 (1), 1018 (10),
1022 (19), 1070 (8), 1105 (6),

1112 (3), 1158 (5)
157 (8), 185 (5)
151 (5), 258 (b, a Ds

Garnett v Armstrong .. 171 (4), at o)
449 (1), “1139 (5), 1818 (3),
1321 (5), 1827 (4)
367 os 399 (2), ea 1 C,
25 (2)
v Pratt

ee 1061 (1)
Garrett v The Earl of Bessborough

1 (3), 88 (9), 518 (4), 675 (2),

916 (3), 919 (8), 921 (9)
Garstin v Nangle_... 129 (4), 489 (3),
501 (7)
363 (3), 689 (13),
784 (5)

358 (3), 1172 (1),

1319 (9)

395 (9), 829 (4), 987 (10)

104 (5), 200 (2),

564 (3), 973 (4)

107 (3), 1034 (9)

799 (2), 1098 (4)

1057 (7),21060 (3),
1

Gannon v White
Garde v G....

 

, In re
Garner v Holmes

vG..

 

 

v M‘Minn

 

Gatchell v G.
v Geoghegan ...

 

Gavacan, In re
v Brophy
Geale v Nugent

 

 

 

206 (7)

Geoghegan v Blackstock 819 (5), 985 (5)
v Connolly on 1409 2)

v Harding 953 (18), 1019 (10)

Geraghty »v G. 412 (6), 801 (11), 1279 (4),
12

97 (3)

 

v Malone 629 (8), 631 (10), 790 (7),
916 (10), 939 (2), 960 (5)
v Rorke

 

717 (10), 1023 (3)
Germain v O’Dwyer Ses 1038 (9)
Gerrard v O’Reilly 152 (4), 153 (2),
513 (7), 646 (4), 976 (1), 1252 (2),

1327 (3), 1389 (1)
Gerrard’s Estate, In re 452 (6), 639 (1),
1245 (3)
1095 (10), 1124 (6)
"38 (10), 259 @), 465 (4)
s 8)
50 (4), 30408)
“681 (8), 1870 (1)

 

Trusts, In re.
Gervais v Edwards
Gethin v Cochrane ...
Gibbon v Lord Cloncurry

 

 

 

Gibbons v Berry... 1098 (6)
, In the Goods of 916 (11)
, E., Inre 1038 (3)
v oe 1243 (5), ne 8
—— vG 5
Gibson v Wills 24 4 (9), 1080 oA 108 )
Gilbert, Re.. 95 (1)
Giles v Dickenson 868 (1)

789 (8), 1011 (1)

Gillespie v Croker
459 (2), 680 (4)

Gillichan v M‘Gusty...
Gillis v M‘Ghee 7 .. 381 (7), 42 (1)
Gillman v G. 416 (6), 559 (6
Gilmore v Clarke 672 (18), 781 (14
Ginger, Ex parte, In re the Tip. Joint-

stock Bank... 140 (2), 353 (3), es oon

..139 (2), ae (2)
Given’s Estate, In re 215 (4), 315 (4)
Givens, In the Goods of sie 1040 (5)
Glasscock v Ross 673 (1), 783 (6), 784 (2),
932 (10), 958 (13)

 

, In re
[NAMES OF CASES.]

Gleeson v The Earl of Sandwich 944 (7),
946 (16), 951 (10)

Glengall’s Estate, The Earl of, Inre 639(7),
999 7), 1407 (8

Glenny v Murdock ... 234 (3), 782 (14
v Woolsey... 327 an), 831 (2),
678 Rat 696 (8, 9), 902 (9) 988 (9
Glover, In re 590 2
Glynn v Locke ~. 409 (8), 692 (6), 815 (9),
832 (10), 873 (13), 1028 (7)

Goddard v Macaulay... 224 (9), 395 (1),
se) 482 (9), 1237 (8), 1238 (13),

 

Godfrey’s Trust, a re sea 1030 (5)
Godley, In re - 880 (7), 1167 (4)
Goggin v Downing... 66 (1), 829 (10),

1293 (1), 1226 (£)

Going v Farrell £ 636 (7), 1138 (6)

v Harding . 709 (1), 712 @), 719 (2)

Goldsmidt v The Earl of Glengall 434 (6),

639 (3), 1022 (20), 1080 (4), 1082(6)

Gomley v Wood . 855 (1), 647 (1), 845 (6),
886 ©) 1214 (7), 1300 (45

Goode, In re .. 870 (7), 396 (8), 873 (3),

1060 (12), 1238 (3)

268 (4), 469 (9

 

Goodwin v J neat
Goold vG.. 821 (6
Goold’s Estate, In re 1001 (5), 1089 (8)
Gordon, Ex parte v Bel. & Down Ry.
Co. als 880 (9), 1167 (7)
v Mahony ee 47 (8), 112 (18),
1308 i), 1316 (4), 1332 (4), 1407 (3)
Gore v G. . ..118 (5), 164 (1), 173 (8),
454 (7), 470(3), 921), 955 (15,
1024 @) 1231 (12)
, In re 505 (6), 546 (10)
Gore's Charity, In re 124 (6), 485 (3), 1014 (2),
1238 (11), 1270 «s) 1265 (5)

 

 

 

Gore v Spotten 308 (4), 418 (10), 513 (5),
1240 (1)

Gorman v Browne ... 1111 (7)
v ee age 499 (5)

Goslin v G. ..481 (8), 815 (6), 988 (9),

1044 (13), 1209 (16)
GouldsberryvG. .. 363 (12), 803 (7)
Govrs. & Guardns. of Steevens’s Hos-
pital v Dyas 35 (1), 45 (6), 147 (1),
528 (6), 1224 (4
844 ais
1319 (1)
840 (1)

Gower v Donovan
v Hill...

Gowran v Barnett é
Grace v Lord Mountmorris 864 (10), 870 (5)
Grady, In re 113 (10), 838 (10), 851 (5)
Grady’s Estate, In re 592 (2), 679 (8), 1329 (6)
Graham v Gledstanes i 1111 (5)

 

 

 

 

v M‘Dermott... 696 (1), 781 (14),

901 (1), 929 (1, 18)
v O'Keeffe... 97 (6), 178 (1), 919 (8
v Thynne 250 (5), 857 (5
v Walker

 

7712 (7), 420 (1), 626 (3, 9),
903 (5

40 (5), 202 (8),
662 (7), 983 (1)
Grant’s Trusts, In re 1286 (4), 1292 (10)
Grattan v The van ass of Donegal 796 (4)
Graves v Davies . 11 (6), 891 (3), 900 (9
v Fennell _... 1116 dl
» G. 20 (1), 235 (2), 956 (2), 1018 (22,
1031 (7), 1080 (11), 1124 @)
1270 (2), 1887 (8), 1346 (2),
1384 (7)

Grantham v Redmond

 

 

 

xix

Graves v Holland 689 (16), 801 (3), 824 (8)

 

 

 

 

, In re 272 (3), 333 (7

v M‘Carthy .. 796 @, 828 (8), 1036 (8
v Waters... 555 (6), 1849 (10)

» Wright -.481 (5), 862 (3),

“$91 (11), 902 (6)
Gray v Boswell 196 (1, 2), 214 (2, 4), 924 6
8

 

 

 

 

 

 

 

v Crawford... 0 (9), 891 (5
-uG. 235 (8), 1269 (2, 5), 1278 12),
1350

——, In re... 87 (2), 106 (5
v Knox 1132 (8), 211 (5), ee yoy
v M‘Cabe . 63 (2), 65 (3), 68 Oo. 8

v Robinson 1351 (6), ise (6)

v Stanford or 1116 (8)

v Strangman ... ..512 (4), 642 (8),

1008 (12), 1013 (15)
Great 8. & W. Ry. Co., The, Inre 1031 (14),

 

 

 

 

 

 

1167 (3)

v Leinster 1223 (6), 1246 (6

v Purcell... 225 (5
v Rosenthal .. 473 (2)
Green v Giles B52 (6), 853 ®, ee 706}
—,Inre... "997 (8)
v M‘Clintock "374 (6), 907 (8)
Greene v Cramer 28 (3), 45 (4)
v Elliott i ss 1010 (6)

v G. | 26 (2), 615 (6), 748 (5),

 

752 (1, 3.7 756 @,, 870 (2), 1198 (3)

 

 

v Hogan 28 (4), 1125 (12)
v O’Kearney ... 512 (8)
v Stoney 183 (8), 300 (1), eae (8)
v Storey

 

Green’s ee In re. “265 (6), 150 ay
761 (3), 1003 (6), 1150 (3)
Greenfield v Bates ... 1215 (8), 1317 (4)

 

 

 

 

 

Greer v G.... 362 (3, 11), 782 (4),
800 (1), 808 (8)
v Mercer ..-689 (9), 8385 (1), 878 (6),
887 (6
v Waterson 1094 (4
Gregg v Arrett + 631 (7, 8)
» Glover 116 (2), 419 (3), ii09 (8)
Gregory v Hand . 794 (5), 1065 (5)
v Kingston ... oe 1139 (7
Gregory’s Trusts, In re 1343 (2
Grehan, Re 185 OO» 373 (4), 1236 C1)
Greville » Browne ... -562 (1), 567(4),
1391 (1)
v Fleming 943 (6), 1055 (7),
1262 (3)

Grey v Matthews ..836 (8), 852 (5),

"867 (8), 1217 (8)

Grier v Leahy ian 812 (14)
Griffith, Ex parte ... 824 (2
Grispi’s Estate, In re was 462 (1
Grogan v Dopping . 744 (3), 759 ti

Grove v Bowen 1. 472 (8), 668 (4),

 

953 (19)

Guardians of Ballinasloe Union, The v
Lynch 810 (4)
Fermoy Union, The v v King 1096 (4)
Gubbins v G. . 571 (5), 573 (7)
Guillamore, Lord v ) O'Grady, 990 (2),
1045 (2)
——— Lord v Peacocke 41 (5), 523 (8)
Guinness v Darley ... 779 (12),

"872 (2), 1099 (3)

v Fitzsimon 73 (4), 970 (2), 1227 (4)

 
XxX

Guinness, In re

——v

‘ 1227 (8)
. 563 (3), 926 (7),
929 (10), 1354 (2), 1399 (2)
v Phelps ... 803 (10), 933 (10)
’s Will, In re the Trusts of | 112 (18),
323 (9), 823 (7), 1280 (6), 1399 (4),

 

 

1408 (4)
Guirey v Lochnane 951 (7)
Gumley v G. "727 (6), Loss fe
Gunning v Ryan ... 28 (6)

Gurly » G. | 288 (4), 371 (2), sT7 (7),
TTT (6), 779 (10), 1201 (25, 1371 (3)
Gurney v Lord Oranmore ... 199 (4),293 oe
300 (2), 648 (3), 826 (2, 8), 907 (10
1009 (13), 1267 (4)
Gwynn v Krous 573 (11), 848 (7),
1218 (4

. 422 (2), 590 (8)

Gyles vG. os
.. 272 (1), 1873 (4

’s Estate, In re.

 

H

Hackett v Donnelly 620 (4), 954 (4)
v Farrell... 374 (10), 381 (2), 385 (7),
476 (5), 713 (6), 838 (13), 868 (11),

1065 (6), 1067 (a2)
612 (5)

, In re
"y Lord Oxmantown ... 424 (2), 428 (3),
“616 (4), 1389 (2)

 

 

 

 

v Snow 1056 (6)
Hadley v Lomi Langford 453 (10
Haigs v Sie 1016 (8)

 

Haines v Purcell
Hale v Carpendale
Hales v Kirby...

| 494 (4), 875 (2)
“451 (2), 1072 (13)
887 (2

 

Hall v H. 1. 60 (3), 829 (3),
338 (8), 1248 (1)
— v Hill S 165 (6), 239 (1),
249 (1), 376 (7), 444 (1), 556 (6),
887 (5), 870 (6), 894 (4), 908 (1),
922 (2, 12), 944 (1), 1050 (6),

1195 (3)
——, In re 102 (6), 624 (1), 657 (5)
v Bemmend «+ 17 (1), 254 (5), 760 (1)
—, w. 95 (10), 657 (4)
v Woodoouk 1124 (9)

 

Hallam’s Case, In re Carew’s Estate 458 (2)
Hallaran v Donal ww. 477 (4), 979 (8)
Halliday, in the Goods of ... 1039 (6)

,Inre ... 893(7), 402 (7)
Hamill v White ... . 896 (5), 1197 (4)
Hamilton v Ball ... 347 (1), 654 (5)

 

 

 

 

» Carroll ... "1340 (3); 1404 (5)
v Dunsford 976 (4)
vFaweett 37 (3), 241 (4), 287 (8),
oH. 323 (6), 412 (7), 859 by

 

910 (13), 911 (10), 1017 (15),
1035 (3), 1293 (4)

 

 

———,, Inthe Goods of ... 1040 (12)
, In re 460 (5), 651 (2), 1160 (3)
‘In re the Estate of 1106 (4)

 

”y Jackson . 239 (2), 249 (3),
a 365 (13), 1004 (5), 1085 (7),

—— v Kirwan 622 (4), 646 (8),
742 (1), 757 (2)
v Lyster 229 (5), 267 (1),

 

642 (1), 1158 (3), 1323 (7)
—— v M‘Cormick ». 864 (5), 813 (17),
926 (1), 927 (13

) Hardwicke v Warren

 

Harvey v Ferguson

[NAMES OF CASES.]

Hamilton v Nagle ... 480 (2), 483 (2),
484 (3), 509 (1), 1086 (2)
v Patten 524 (5), 882 (6), 915 (3)
v Synge 187 (8), 849 (1),
(14), 863 (2), 886 (1), 1123 (12)
Wes 274 (5), 279 (1),
314 (4), 806 (10), 822 (), 1361 (2)
v Wilson 801 (7)
Hammersley, In re 159 (8), 280 (3), 576 (1)
’s Estate, Inre .. 160 (1), 213 (8)
Hammond v Mitchell 1027 (1), 1107 (3)
v Molloy 2. 800 (12)
Hams, In re ait 98 (2), 115 (5)
Hanan v Drew ... 426 (2), 429 (3), 1851 (5)
Handcock v Delacour 709 (4), 719 (5),
1092 (8)
« 187 (2), 188 (4), 166 (6),
310 (2), 457 (5), 627 (8), 871 (10),
1172 (2, 4), 1227 (1); 1243 (7),
1247 (3)
Handley v Lord Langford

 

 

 

 

 

 

 

vi.

675 (3), 715 (1),
1061 (6), 1068 (a8)

| 548 (2), 1087 re

917 (2), 922 (7)

1064 (14)

... 813 (1), 1856 (7)

«» 294 (4), 299 (2),

572 (1), 1887 (4)

..- 1180 (2), 1811 (5)

-- 808 (5), 840 (13)
Hare v The Cork and Bandon Ry. Co.

877 , 931 "Gs, 963 Santa

Handy, In re ins
Hanks, Ex parte

v Tottenham
Hanley v Blennerhassett ...
Hanna v Bell
Harding v Grady

 

, In re

 

 

 

v Forbes a

» Lord Mountcashel - intl (5)
Harewood v Bland ave 1099 (3)
Hargrave v Holland 1048 (7)
Hargreave v Everard ... 222 (5), 353 (4)
Harley v H. 319 (3), 1202 (7), 1208 (4)

Harman v Strangways 17 (6)
v Forster ... 56 (8), 309 (sf tis ae
51@

Harnett, Ex parte, In re Cork & Y.
Ry. Co. ws 35 (2), 48 os ee »
08 (2

—-—vH. on 1068 (10)

v Harrington . 862 (14), 799 (13)

Harpur v Ball . 3888 (10), 389 (5), 868 3),
1196 (5

 

 

 

 

 

 

—— v Boyd 361 (2), 677 (5), 702 (4),
711 (10), ee es
Harris, In re she 68 (1)
v Cullen ... 999 (0)
v Shea » 499 (1), 874 (12)
——— v Shee "1048 (1), 1054 (13),
1085 (6)
Harrison v Duignan 266 (5), = vO
72 (9
, In re as 139 (3)
v Mason we 53 QQ), ), B4 (3), 58 (2),
285 OD, 296 (5), 364 (7), 486 (10),
814 (6)
Hart v Carleton an 634 (4), 1053 (2),
1057 © 1060 (11), 1231 (4),
1243 (4)
Harte v Ffrench a 1284 (6)
Hartford, In re 313 4, ae 5 >.
84 (7
Hartley v O'Flaherty 10) Gd
Hartstonge v Tottenham 1059 (3)

873 (10), 982 (5)
[NAMES OF CASES.]

 

 

 

Harvey v Lawler 2 715 (10)
v Lawlor 360 (17), 710 C11)
v Wallace si 1056 (12)
v Wallis 1089 (9)

Harwood v Bland - (11), 864 (5),

oid (4), 1015 5) 1814 (4)

 

 

 

 

v Tenison 42 (10)
Hasler v Salmon ee 1383 3
Hatchell » Chancellor | ‘859 (6), 933 @

v Lord Cremorne 907 (13),

1013 (1)

vEggleso 388 (11), 624 (6), 928 (8),

932 (10), 933 (3)
v Sutton 361 (8), 1009 (6)

Hatton v Waddy |. 33 (8), 59 (1), 156 (1),
163 (8), 391 (3), 596 (4), 673 (2),

680 (1), 1163 (1)
501 (10), 507 (6),

Hawkes v Smith
1088 (4), 1256 (3)
Hawkesworth’s Estate, In re ... 837 (11)
Hawkins v Carry... 927 (7), 936 (10)
Hay v Watkins 741 (1), 747 (8), 748 (4),
755 (6

)
Hayden v Shearman ... 795 (8), 797 (8),

 

 

 

 

1089 (10

Hayes and Rice, In re 753 (7
v Brierley’ 901 (8), 906 (11), 957 (119

v Garvey 165 (7), 737 (1)
——,, In re the Estate of oe 1115 (6)
v Marshall 187 (8), Bee nee bx

v Woodley 509 (3), 603 (3), mi sy

988 (6
Head v Massey 190 ; 836 (9)

394 (5), 395 (4)

"33 (8), 36 (10), 885 ee
3

932 (8), iii9 (14)

375 (4), 972 (9)

Heazle v Fitzmaurice 252 (2) 1397 (4)
Hedges v Aldworth ... 166 (7), 557 (6),
923 (4), 1172 (3), 1894 (7)

v O'Sullivan ... eas 1266 (3)
Heenan v Berry 168 (5), 364 (16), 579 (10),
598 (13), 1057 nh ae (8)

Healey, In re
Heard v Cuthbert

Hearne v Nagle
Heath v H.

 

 

Hegarty v Bourke 05 (3)
, In re *30 (7)
Helsham v Burton 1125 (5)

Hemphill v M‘Kenna... 676 (1), 681 (8),
698 @)8 873 (7), 963 @, 967 (2)
Hemworth,Inre .. 1111 (2)
Henchy, Ex parte 754 (2), 1248 :
Henderson v PoReriate nye 1077 (1
Hendrick, In re ie 995 (8)
Hendrie v Thompson... 440 (4), 709 (1),
719 (2), 962 ©, 973 (i)
Henegan v Little... oa 1067
Henn v Bradshaw

366 (2), 910 (4)
Hennessy, In re

.. 69 (8), 127 (3), 409 (8),
644

 

 

 

, In re, ex parte Linehan 483 (9),

612 (2)

v H.... 884 (6)

. Re 88 @), 94 (1), 96 (1)
Henrion v Bonham 55 (7), 1868 (6)
Henry v Douglas 58 (1), 629 (5)

——.,, In re, ex parte Crossfield 637 (1)

—— v Rankin 893 (2), 402 (3), 482 (6)

—— v Smith 170 (4), 413 (6), 420 (7),
445 (1), 449 (8), 578 (6), 682 (3),
1240 (12)

1) | Hinds v H.

6) | Hird, Digan and, Re

 

xxi

Herbert v Beerhaven... 583 (1), a Os

 

—vBlunden 273 I 1353 (1880 cs)
—— v Eyre
——— v Greene 458 (3), 1058 ea
9
—— v Hedges 655 (5), 878 8, 8)
v Maclean 150 (7), 515
» Rae 939 (6), 1090 (5)

 

Heron v Stokes —... 49 (6), 55 (4), 210 (2),
281 (5), 556 (7), 910 (3), 912 (12),

 

1018 (14), 1036 (11), 1183 (1),
1208 (2), 1356 -(1), 1363 (3),
1368 (1, 3), 1381 (6), 1882 (7, 8),
1401 (8)

,Inre ... ear 376 (6)

Herons, In re
Herricks, Minors, In re
Hewitt v ’Bredin

Hewson v Carolin

"238 (8), 398 (5)

451 (1), 1078 (3)

: 1399 (3), 1408 (6)

56 (3), 251 (4), 310 (3)
3

1340 (4)

Hibernian Joint-stock Banking Co.,
In re 97 (8), 177 (1)
Hickey, v The Earl of Meath ... 938 (12)
, In re : 87 (9), 89 (6)
Hickson v Collis 181 (1), 307 (5), 445 (4),
587 Oy, 628 (3), 1152 (1), 1225 (3),

£)

 

 

 

 

1242 (1

» Hill : we 289 (3)

v Lombard — 348 (3), 353 (7), 528 (3),
727 (7

v Wolfe 387 (8), 554 (3), 743 (4),

1386 (5), 1898 (7)
Higgins v Bateman ... 111 (4), 798 (8),
845 QD), 8 854 4), 876 (4), 1207 (11)
——— v Joyce 808 (15), 1214 (4)
v Shaw ... 6 (8), 10 (4), 170 (6),
488 (6), 569 (6), 574 (8), 607 (4),
641 (5), 709 (1), 715 (ii), 718 (6),
778 an, 817 (8), 901 (9), 1326 (8);
1880 (5)
Hilhouse v Tyndal_... 58 (4), 136 (5),
247 (6), Do (2), 806 (95, 907 (7),

1022 (41
Hill v Browne 181 (10), 282 (8), 307 (3),
310 (7), 625 (7), 630 (8)

 

 

 

 

 

v Kerr ... 1066 (4)
v Mill . ‘207 QQ), 225 (4), 316 (3),
526 £2 677 (7), 701 (5), 1271 (4),

1324
v O'Hanlon una 717 (7), 1128 (2)
Hillas v H. 292 Sa 1176 (5), 13872 (2)
v Phillips 907 (12)
Hillis, Ex parte 1286 (2), 1292 (7)
Hilliard, Ex parte eh 1206 7

Hilton v Mills re 569 (1)

297 (2), 561 (2), 758 (1),
1390 (1

821 (2), 822 Sy

88 (8)

1006 (6), 1010 (9), ie A

Hines v O’Keeffe
Hinton v Gill

 

6
Hoare v The Hib. Min. Co. 441 a. ve 75 Os
Hoare’s Estate, In re ee 995 (6)
Hobhouse v Hamilton abs 1205 (2)
v Hamilton 1008 (5), 1077 (16)
Hobson v Murphy... 1063

©)
. 13 (1), 72 (4), 284 LG,

376 (2 re 2
‘846 (12), 847 oe 954 2

Hodgens, Ex parte

 

v H.
v Wheeler

 
Xxii

813 (12), 819 (13)
.. 10 (), 142 (2),
76

9 as

829 (9), 958 (6
a 1041 (13
870 (11), 876 35
Hogan v M‘Namara ...876 (16), 878 (2)
Hogg v Garrett 4 (1), 245 (5), 674 (4),
941 (10), 943 (7), 989 (8); 990 (11);

Hodges v Barton
v Welsh

 

Hodnett v Going
Hoey v Redmond ...
Hogan v Baird

 

1117 (8)
—— v Waldron ae 958 (11), 1112 (38
Holland v H. 6 (4), 7 (D, 8 (5), 676 (12
Hollier v Eyre es 3 197 @
v Hedges 55 (1), 58 (6), 435 (5),
914 (9), 972 (5), 1086 (4)
Holmes v H. 401 (14), 467 (5), 1047 (9),

1112 (15), 1235 (1), 1249 (1)
, in the Goods of “a 1040 (3)
"y Walker 695 (10), 824 (11)
Homan v Andrews ... 588 (6), 602 (6),

 

 

 

1241 (3)
v Sheil 724 (6)
——— v Skelton 14 (8), 41 (2), 544 (2)

839 (6), 962 (9),

968 (2), 1122 (4

862 (12

440 (6), 460 (4), 638 (2),
1160 (1), 1244 (4)

v Lord Langford 502 (11), 1135 (6)
Hoops v Kingston, the Earl of 415 (6),
609 (4), 882 (10), 890 (9), 970 (4),

977 (7), 1001 (4), 1 1096 (5), 1248 (3)

Home v Thompson ...

Honan v Galway...
Hone v O’Flahertie ..

 

Hopkins, Ex parte ... 92 (9)
Horner v Williams ... i101 (6)
Hornibrook v Ware... ‘800 dab, se ae

59 (6)
Hort v Bloomfield ... 899 (11)
Hossford, Inre ” 1284 (2)
Houghton, In re 151 (6), 517 (4), 1130 (5)

Do-
70 (4), 641 (1)
488 (5), 607 (3),
1820 (6), 1823 (5)
Houston v Barry 33 (4), 113 (8, 4), 205 ey
210 (5), 294 (5), 467 (12), 838 (5, 6),
850 (9), 967 (10), 1406 (7)
——vKinahan ...
v O’Connor ...
Howard’s Trusts, In re

Houlditch v The Marquis of
negal ... ”
——— v Wallace

1261 (4)
"320 (2), 711 (3)
318 (4), 1187 (2)

 

Howe v H.. 338 (6)
Howlett v Lambert... 3 (3), “20 (3), 820 (6),
366 (1), 596 (6), 721 (1), 819 (8),

863 (85, 8647), 1011(6), 1035 (8, 10)

Hudsons Minors, In re 427 (5), 430 (1),
BBB (1)

.. 1060 (10)
364 (1), 1007 (4),
1029 (8), 1081 (i)

Hudson v Williams ...
Huggard v Lynch

 

 

 

Huggins v Moffett .. 49 (2, 11)
Hughes v The Belfast Harbour damn,
missioners 1224 (2)
v Cowley "922 (8), 987 G11)
, Ex parte 931 (12), 1285 (6),
1301 (5)
, In re -. 69 (2), 98 (4), 1230 (8)
v Kelly

 

161 (3), 420 (8), 578 (9),
583 (3), 593 (10), 598 (3), 856 (3),
870 (7), 1228 (8), 1242 (3)
v Maitland 813 (13), 819 (14),
854 (3), 876 (7)
836 (9), 869 (11)

 

——— v Nash

 

[NAMES OF CASES.]

Hughes, Re T.

95 (3)
—— v Taylor

“360 (3), 721 (4),
722 (6), 725 (1)

Hughes’s Estate, In re --. 60 (5), 994 (8)
Humble v H. 636 (3), =F (1)
, In re 34 (7)

 

Humble’s Estate, In Te 461 a
Humfrey v Gurley bis "320 (5), 864 (2
Humphrey v Arabin.. 165 (5)
v Bayly 1219 (1), 1220 (2)
Hungerford v Beecher 158 (4), 208 (1),
512 (6

 

 

 

v Jagoe 111 (7), 1020 (14),
1021 (9)
v Whitney 289 (6)

Hunt v Bateman _s.. "299 (5), 594 (3),
861 eye 867 (7), 1274 (7)
v Browne 980 (6)
v Hodges a6 1335 (4)
— In re... "368 (4), 369 (8), 370 (5),

394 (10), 1004 (1)
986 (10), 1034 Oy

 

 

Hunter v Edmonds ...

 

 

 

v Kennedy ... 230 (2), 1159 (1

v The Earl of Limerick 169 (5)

v Pring 881 (3), 1082 (1)
Hunt’s Estate, In re 995 (5
Hurst v Campbell 1021 (4

“412 (1), 418 (7),

661 (7), 879 2), 982 (9)
: 80 (6), 108 (4)
413 (12), 478 (4),

1083 (155, 1086 (7)

479 (8), 508 (9), , 2D

421 (8
"579 (4), 586 (4),
594 (5), 600 (8
- 153 (1
388 (9), 474 (8),
1081 (11), 1101 (5, 1192 (2)
——vH. 766 (9), 1841 (3), 1345 (3),
1371 (2), 1402 (3), 1374 (2), 1408 (4),

1406 (19), 1 1407 C1)
1216 (7)

v Joyce abe
Huthwaite, In re 184 (2), 447 (5),
457 (6), 647 (6)

Hutton, Ex parte... 83(7), 84 (3), 390 (1),
477 (8), 680 (10), 896 (9), 930 (15)

v Foster eis 886 (1), 1095 (8)
v Mayne sos 400 (9), 401 (10),
634 (7), 903 (4), 1007 (8)
225 (6), 450 (7),

Hutcheson v Smith pe

Hutchings, In re
Hutchins v H.

vA...

 

v Sullivan
—— v O'Sullivan...

 

Hutchinson v Bond ...
v Cathcart

 

 

 

 

Hyde v Atkinson

 

1143 (4)

Hynes v Redington ... 364 (14)
v Redington... "230 (Os eae ao

57 (2)

 

v Redington... 325 (6, 8), ‘ee (1),
1185 (1), 1291 (7)

I

In the Goods of Armstrong ... 1039 (8)
Goods of Burrowes 1041 (1), 1896 (1)
Goods of Chatauvillard 48 (4),
387 (4), 1040 (4)

 

 

 

 

 

 

Goods of Coghlan 1038 (14

Goods of Collins 843 (4
Goods of Crean 797 (4)

Goods of Currigan 1038 (11)
~——— Goods of De Morin |... 1037 (7),
1043 (15)

——— Goods of Fitzpatrick .,. 1039 (2)
[NAMES OF CASES.]

 

 

 

 

 

 

 

 

In the Goods of Fleming 1339 (9
Goods of Galligan 1041 (5
Goods of Gibbon 916 (11
Goods of Givens 1040 (5
Goods of Halliday 1039 (6
Goods of Hamilton 1040 (12
Goods of Harlin 1038 (15
Goods of Holmes 1040 (3
Goods of Lindley 1040 (7
Goods of Loftus 1042 (9

 

 

236 (6), 1040 (10

Goods of Mackay
718 (14), 1039 (3),

Goods of Mahony

 

 

 

 

 

 

 

 

1044 (6

Goods of Mecredy 1041 (4
——— Goods of Murray 1046 (4
Goods of Oag 1046 (3
Goods of O'Rourke 1038 (10)

Goods of Ramsey 1038 (13

Goods of Rankin 1042 (10

Goods of Reitzenstein 1041 (2

Goods of Sloane 1040 (9)

Goods of Spillesy 1041 (9)

 

Goods of Stowell
Goods of Sullivan
Goods of Tierne
— Goods of Ure

Goods of Usher

 

924 (6), 1340 (8
236 (5), 1040 3
1038 (12)
163 (6), 889 (3),

1038 8 (7), 1389 30 (408

 

 

 

 

 

Goods of Ward 40 (13)

Goods of Wilson aa 1088 (4)

In re A.B. 67 (11), 1206 (8), ae QB),
48 (10)

— Abbott & Moore 846 ay, i310 2)
—— A disputed Adjudication 83 (5), 90 (1)
—— The Admission of Attorneys 1024 (8),
1206 (1)

—— Agnew 102 (1)
—— Ahearne 1036 (10
Airey 1089 (10

 

— The Earl of Aldborough's Estate 512 (2)

 

 

 

 

 

XXxiil

402 (9), 1007 2 1239 (3)
14 (5), 273 (1),
380 3), 1330 (4)
574 (7), 10),
1219 (1), 1220 (2)

72 (3), 80 (2), 81 (5),
82 @); 84 (4), iT)

: 1908 9
120 (5), 122 (1),
466 (7), 1233

In re Barry...
—— Bayley’s Estate...

—— Bayly’s Estate
—— Beale
—— Beecher’s Estate

—— Bell
— Belvidere’s Charity .

 

 

 

 

—— Bennett’s Estate 462 (5)
— Biggs ; 993 (6)
—— Blackley’s sEstate ... 995 (11)
—— Blake 464 (5), 603 (2), 612 (8),
1146 (5), 1278 (1)
— Blake’s Estate 38 (3), 201 (2), 523 (1)
—— Blood’s Estate ... 897 (8), 1248 (4)
Boate 448 ,, 464 (9), M407 {18
—— Boate’s Estate 63 (9)
Bodkin ai 208 (5)
—— Bodkin’s Estate «. 891 (2), 452 (4),
591 Or 931 (15), 1002 (6)
Bourke és 97 (4)
—— Boyces 78 (4)
—— Boyle’s Trusts 1289 (4)
Brabazon 426 (4), 431 (8), 982 (2),

994 (11), 1367 (2)
Bracken’s Estate ... 1212 (6)
Briscoe 612 (10), 808 (10), 1033 (7)
— Browne... 26 (5), 104 (4), 108 (3),
305 (2), 735 (1), 738 (5), 788 oe
914 (12), 1229 (5), 1386 (4)
— Browne... 368 (6), 369 (11), 394 (2),
399 (5), 554 (1), 566 (4), 653 (3),
1146 (3), 1173 (5)
— Browne’s Estate... 92 (8), 354 (3),
407 (1), 448 (7), 1001 (99, 1108 (6)
— Browne’s Estate 1002 (1), 1160 (8)
—— Browne’s and Beytagh’s Estate 588 (5)

 

 

 

 

 

—— Alexander ..60 (2), 509 (6), 1247 (7) Browne’s and Blackie’s Estate 1002 (3)
— Alexanders. 821 (2), 826 8 —— Brownrigg’s Estate... 422 (6), 788 (15),
— Andrews ..207 (8), 875 (7), 878 (7) 1003 (1, 8), 1407 (10)
Armitstead 949 (4), 1017 (9), 1088 aa) ——Bryan.. “998 (1)
Armstrong ” 6) | —— Bunbury, Boughton, Ex parte 846 (1)
—— Ashe. sce, 27 (2), 30 (6), 437 (2), | —— Burgess’s Trusts 235 (5), 239 (9),
787 (5), 871 (13), 997 (8), 115 (7) 1201 (6)
—— Ashe’s Estate ... 92 (6) | —— Burke ; 89 (4), 109 (7)
—— the Assignee of Bateman 999 (8) | —— Burke’s Estate 294 (3), 469 (4),
—— the Assignees of Ferrall 460 (7) 625 (1), 999 (11)
— the Assignees of Frewen 884 (5),|—— Burmester... 219 (4), 227 (4), 645 (1),
998 (7) 651 (5), 660 (2), 1157 (1), 1322 (39,
—— Aylward’s Estate 733 (2), 1200 (2) 1829 (2)
a ‘ 610 (4) | —— Burmester’s Estate ... 263 (2), 1000 (9)
—B ata 610 (7) | ——- Burroughs «. 610(6
—— The Bagnalstown & Wex. Ry. —— Buitler’s Estate 592 (3), 607 &
Co. ... w. 77 (8), 84 (3), 462 (7), | —— Byrne 1288 (3)
1164 (5), 1230 (6) Cairncross ss s+ 993(8
—— The Bagnalstown Ry. Co. 255 (8), | —— Campbell’s Estate ... 279 (3
462 (6), 1164 (6), 1245 (4), 408 8 — Cantillons Minors... 427 (3), 1351 @
—— Bakers.. 394 (8), 395 (8), 1009 (2) 1408
— Balfe’s Estate ... 822 (8), 997 (7) Carew 326 (4), 1106 ‘ny
Balls ... a 369 (6), 1204 (4) 1297 (3
—— Carew’s Estate 458 2

—— The Banbridge Extension Ry.
Co. ... 772 (2), 84 (6), 1164 (7)
—— The Bankrupt Court Commis-
84 (8)

sioners
— Barretts Minors - "287 (7), 288 (6),
1341 (1), 1865 (5)

— Barretts, ex yee pee 833 3
— Barr ... 97 (8

 

—— Carew’s Estate (Hallam! Ss Case) 458 (2)
— Carr es +. 993 (8)
— Casey’s Trusts 94 (5), 377 (4),
403 (6), 575 (2, 3)

—— Cassan’s Estate 60 (8), 169(8), 1000(3)
—— The Catholic University 1302 (1),
1308 (3)
XxiV

In re The Pews of the Cathedral of Lon-
donderry .. 246 (5), 1180 (1)
—— Chambers... 743 (2), 748 (8), 749 (1),
752 (2), 757 (5), 765 (1), 865 (3),
1285 (8), 1287 (10)
—— Chapman & Bradford 86 (7), 105 (6)

—— Charity Estates of Drogheda 125 (2),
1288 (8)
—— Charleville w. 418 (1), 710 (2),
720 (1), 729 (2), a (2)

—— Chatterton 41 (4
— Chinnerys.. 613 3), 963 (2), a8 (5)
—— Clancy’s Estate 151 1 @), 205 1), ah (5)
— Clare os 0 (8)
— Clare’s Estate ees 107 qd)
— Clarke 185 (3), 1147 (2), 1323 (2)

— Clarkes ... 102 (8), 103 (2, 3), 116 (1),
166 (2

1360 (1), 1362 (5)

610 (5), 875 (5)

. 433 (2), 552 (2),

1350 (6), 1394 (4, 5)

—— Clements’s Estate .... 205 (2), 1114 (1)

—— Cleary’s Trusts
— Clegg
—— Clegg’s Estate

 

 

 

 

— Clendinning 91 (5), 604 (2),

929 (4), 933 (7)

— Clutterbuck 177 (2), 848 (2)

Coane 604 (8), 940 (8)

— Coffey . 1285 Oy

Comklan! s Goods «- 1038 (14

Colclough 223 (2), 603 (8)

— Collis’s Estate ‘1109 1), a Ca
Collum...

— Colthurst ... . 11 (9), 394 2), “or Ss

465 (7), 525 (7), 538 (5), 1006 (139,
1009 (4), 1012 (2), 1038 (15)
—— Colthursts ... 256 (2), 490 (1, 2), 494 (6),
525 (7), 581 (6, 7), 532 cL, 2, 4)
— Comerford 86 (1
—— The Commrs. of the Court of.
Bankruptcy ee 84 (8), 1125 (8)
— The Commrs. of Public Works,
ex parte Studdert 240 (5), 1164 (2),
1228 (5), 1235 (6)
—— The Commrs. of the Shannon 847 (1),
859 (11), 884 (13), 1030 (9)
—— The Commrs. of Wide Streets of
Cork... . 587 (8)
—— The Commrs. of the Wide Streets
477 (2), 1081 (12)
—— The Commrs. of Woods and Forests
859 (14), 885 (4), 1222 (4)
— Comyn’s Estate 60 (7), 468 (8),
1096 (9), 1247 (8)
7

 

 

—— Comyns 82 (6), 1017 (5), 1047
— Connellan’s Trusts... 1396 (9), 1408 (12
-— Connery ... 884 (4), 1211 (6)
Connor 114 (11), 739 (3),
1380 (2, 3)
Cooke 227 (1), 1156 (4), ae (1)
— Cooper’s Estate ... 21 (2)
Coote 88 (1), 108 (9)

 

—— Cootes Minors 397 (5), ae ee
47 (8)

— Cork & Y. Ry. Co., ex parte ee
35 (2), 43 (2), 469 (5), 1308 (2)

— Corkers ... 56 (2), 181 (5), 398 (8),

482 (12), 616 (3), 1014 (3)
—— Cormicks PS eet as 483 (3
— Cornwall

76 (6), 635 (6),
1139 (6

1
— Cornwall’s Estate 1000 8

2) |-—— Desmond

 

[NAMES OF CASES.]

In re Cornwalls 367 (3), beh (4

4

— Costellos 502 (12), 118 3 Oy
1084"(12)

—— Cottrell, ex parte Smythe .... 119 (5),
174 (5), 1232 (11)

— Courtney 85 (7), 370 8), ), 1237 (6)
Craig 82 (7), 108 (2), 110 (3),

 

471 (3), 1229 (1)

Creagh ... ve 610 (9)
Crofton 329 (1), 384 (1)
Crosbie 484 (6), 618 (15),
873 (6), 882 (3)

— Cullin’s Estate 134 (6), 218 (4), 292 (3),
1184 (4), 1822 (4)

 

 

 

 

 

 

—— Cummins ates 1033 (8)
—— Curry « 31 (6), 94 (3), 97 (9),
142 (1), 659 (oy, eh a

—D.R
— Darcy 113 een 994 (10), 1002 7
—— Darley 288 (4), 1301 (7)
—— Davies a 207 (4), 261 (1)
——- Davison & Torrens 866 (10),
886 (6), 1209 ele) ce (1)
— a s Estate ... 94 (7)
109 ¢ (6)
De "Chabot’s Estate 995 (4)
— De Moleyns’s Estate was 998 (3)
—— Dease.. A 67 (5), re (7)
—. Delacour 01 (4)
— Delahoyd "85 (6), 108 (7)
—— Dennehy’s Estate 281 (2), 273 (2),
1365 (4)
— Dennis’s Trusts... 730 (3), 744 (4),
759 (6)

—— Derry Cathedral, The Pews of
246 (5), 1130 a

866 (1), 1285 (10
1116 (2), 998 (9),

1211 (2)
— Dickie 109 (11), 779 (13)
— Digan 82 (1), 82 (8)
—— The Dilapidations of St. Patrick’s

—— Devereux’s Estate

(Dublin) Deanery House 246 (7),

1835 (7)

—— Dill, R. & D. 96 (3)
— Dillons, Minors.. 795 (9)
— Dobson. 78 (2), 80 (5), ete PCG

1

—— Dodd ... 8 @
—— Doherty 82 (5)
—— Doolan 538 qd), 611 (8), 6138 (1),

872 (9), 1075 (3)

—— Doolys Minors ... 1060 (9)
— Dowden’s Trusts ats 1032 (7)
—— Dowling’s Trusts 736 (2), ey i
—— Draper 1(7)
—— Drogheda, The Charity Estates =

125 (2)
—— Dublin Corpn. Waterworks 66 (8),

1033 (4), 1226 (5), 1247 (3)

—— Dunbar 465 (10), 479 (1), 1252 (4),
1265 (8)
—— Dundalk & Enniskillen Ry. Co.
1167 (2)
— Dunne ets is 101 (7
—— Dunscombe 797 (6), 1027 (15),
1233 (5)
—— Dwyers, 240 (1), 1184 (2)

—— Edgeworth’s Estate, In re Davis
1000 (4)
 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

[NAMES OF CASES.] XXxV

 

 

 

 

In re es Estate, In re Good- In re Goold’s Estate ... 995 (3), ae ae
yea : 461 (2)
— Huseworth® s Estate .. 461 (1, 3),|—— Gore ... is 505 (6), 546 (10)
638 (5, 8), a (7, 2 — Gore’s Charity ... 124 (6), 485 (3),
— Edmonds 986 1014 (2), 1288 (11), 1265 (5),
—— Edwards’s Estate 353 (5), 624 03 1270 (8)
Egan’s Estate ... : 1001 (8) |—— Grady. 118 (10), 838 (10), 851 (5)
—— Evans’s Charities 122 (7), 218 (2), | —— Grady’ s Estate 592 (2), 679 (8), 1829 in
1148 (1)| —— Grant’s Trusts... 1286 (4), 1292 (10
—— Fahy 92 (4), 93 (2), 109 (A. — Graves ee 272 (8), 383 (7)
— Gray .. 87 (2), 106 (5)
Fair 3828 (6), 377 (3), ion Oy The Gt. 8. & W. ‘Ry. Co. 1081 (14),
508 (7), 566 (1) 1167 (3)
Fanning’s ey 13s (4), 1289 be —— The Gt. S. & W. Ry. Co.v
—— Farrell 94 (7), 100 (6 Rosenthal, ex Bente Wilson 473
—— Fenton’s Estate . 998 i oe res —— Green .. fa 997 (8
— Ferrall nie 59 (8) Green’s Estate . ‘965 (6), 750 (1)
Ferrall’s Assignees be 480 (7) 761 (3), 1003 3, ae (3)
—Ferrar ... 27 (8), 28 (8), 102 (5), | —— Gregory’s Trusts 43 (2)
108 (6), 104 8), 105 (3), 1229 (7) | —— Grispi’s Estate . ae 163 (1)
— Filgate 1080 (13), 1086 (8) |] —— Guinness ous 1227 (3)
Finlay’s Estate . 999 (2) | —— The Trusts of Guinness’s Will
— Fishbourne 1029 (14), 1031 (13) 112 (18), 323 (9), 823 (7), 1280 (6),
— Fitton 794 (12), 796 (7), 907 (11), 1399 (4)
911 (7), 1027 (9) | —— Gyles’s Estate ... 272 (1), oo rs
— Fitzgerald’s Devisee ea 624 (11) | —_- Hackett ne
Fitzgerald’s Estate 95 (4), 218 (5),] —— Hall... vee ‘102 (6), o24 MY
406 (7), 460 (6), 638 (3), 1244 (5), | —— Hallam ioe 58 (2)
1818 (1), —— Halliday we 398 (7), 102 G
Fitzgerald’s Estate 461 (5), 638 (9), | —— Hamilton's Goods ies 1040 33
1245 (1) | —— Hamilton’s Estate Bi 1106 (3)
—— Fitzmaurices 61 (2), 605 (1), Hamilton ves 460 (5), 651 (2),
627 (2) 1160 (4)
— Fitzpatrick 1109 (6) Hammersley... 159 (8), 280 (3),
—— Flanagan Sis sas 610 (8) 576 (1
— Flood’s Estate ... 228 (2), 462 ay —— Hammersley’s Estate 160 (1), 213 (3
463 (4, 5), 469 (7), 513 (29, 650 (2), | —- Hams ie 98 (29, 115 3
919 (6), 937 (2), 1001 (2) —— Handy ; x 90 (5)
Foley’s Estate ... 656 (7), 1245 et —— Harlin’s Goods . i 1038 (15)
— Foster Bes 85 (3), 997 (10) | —— Harding sit 1130 Oe) 1811 (5)
——Fox .. 414 (3), 1145 (4) | —— Harris ae a 368 (1)
Franklin is 1206 (10) | —— Harrison a 129 (3)
Freehill, The Lands of ... 368 (2) | —— Hartford ass 383 (4), ee £m
French 76 (4), 105 (4), oe 5 2 —— Hawkesworth’s Estate ... 37 (11)
2) | —— Hayes and Rice sits O08 (7)
Frend’s Estate ... 214 (D, Se (1), | —— Hayes’s Estate 1115 (6)
432 (2) | —— Healy .. we ‘394 (5), a (4)
Frewen’s Assignees 884 (5), 998 (7) | —— Hegarty ane 80 (7
Frew’s Estate 275 (4), 575 (1), Hemworth des ie 1111 (2)
1361 (6) | —— Hendrick a 995 (8)
—— Fuller’s Assignee ces 995 (1) | —— Hennessy ws. 69 (8), 94 (1), 96 (1),
— Furlong & Shields 84 (9), 88 (1) 127 (3), 409 (3), 644 (6)
408 (5), 467 (13), 484 (1), | —— Hennessy, ex parte Linehan 483 (9),
1092 (1), 1228 (7) 612 (3)
Gallie ... 102 (4), 452 (3) | —— Henry, ex ener Crosfield 687 (1)
— The Goods of Galligan ses 1041 (5) | —— Heron . sie 376 (6)
Gardiner es 157 (8), 185 (5) | —— Herons.. 898 (5
—— Gavacan ae 107 (3), 1034 (9) | —— Her ricks Minors 451 (1), 1078 (3)
— Gerrard’s Estate... 452 (6), se —— The Hib. Joint-stock sen :
1245 (8 Compan bes
— Gerrard’s Trusts 1095 (10), Hee (6) | —— Hickey , a er) 5 os
— E. Gibbon ay - 1038 (3) | —— Hill’s Maseanaes v Kerr .. 1066 (4)
— Ginger ‘139 (2), 352 (2) | —— Hoare’s Estate .. sac 995 (6)
— Given’s Estate ... 215 (4), 315 (4) | —— Holmes’s Goods... a 1040 (3)
— The Earl of Glengall’s Estate 399 (7), | —— Hossford 6 1284 (2)
639 (7), 999 (7), 1407 (3) | —— Houghton 151 (6), 517 (4), 1180 (5)
—— Glover es 590 (2) | —— Howard’s Trusts 318 (4), 1187 (2),
—— Godfrey’s Trust 1030 (5), 1292 (2 * "1409 2B)
—— Godley i 880 (7), 1167 (4) | —— Hughes 69 (2), 98 (4), 1230 (5)
cares Goode ... 370 (7), 396 (3), 873 (3), | —— Hudsons, Minors 427 (5), 480 (1),

1060 (129, 1238 (3)

 

555 (1)

e
XXvVi [NAMES OF CASES.]

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

In re Hughes’s Estate ... 60 (5), 995 ) In re Lane’s Estate ... 999 (6), 1157 (3)
Humble ... wee 34 (7), 636 (3) Lane’s Trusts 443 (5), 1272 (4),
Humble’s Estate 461 1859 (4)
Hunt ... 368 (4), 369 (®)é ae oy —— The Earl of Lanesborough 483 (4),

94 (10) 611 (2, 5), 612 (8)

— Hunt's Estate ... oo (5) Langford, Leech, ex parte 30 (2

——Hutchings "80 (6), 108 (4) Langfords a. 502 (11), 1084 (9

—— Huthwaite 184 (2), 447 (5), ee es —— Lawder . 75 (4), 91 (8), 468 C1

47 (6) | —— Lawder’s Estate 262 (4), 1148 (2

Irish South Eastern Ry. Co. 834 (8), | —— Lawlors 847 (4), 882 (12
1310 (8) Lawless “505 (8), 509 O, co (1)
Irwin ... aa 447 (8), 736 (3) | —— Ledwich ae 288 (2)
Irwin’s Estate .... 1108 (4); 1317 (6) ; —— Leech "467 (7), 490 (8), 582 (6),
Jackson 507 (2), 548 (1), 1002 (4) 872 (12), 1224 (8), 1239 (5)
—— Jackson’s Estate 60 (6), 151 (7), | —— Legg . 1284 (5)
166 (4), 317 (2) | —— Lighton "624 (8), 642 Os 99 Gd),
—— Jackson’s Trusts 427 (2), 1867 (4 22 (23)
—— Jager’s Trusts 416 (5), 427 (1), 729 3) —— Lilburn et (0)
—— Jennings 93 (5), 100 (7), 457 (4), | —— Limerick’s (The Earl) Estate 461 (9),
642 (5), 941 (11), Fee (4), 1167 (99, 995 (10)
—— Jennings 227 (8), 1147 (4), 1159 Ed —— Lindley’s Goods 1040 (7)
1234 Lindsay 1354 (10)

— Jessop 554 4 ©), 1106 (5), 1399 e —— Little w -103 (1, 4)
— Johnston 86 (8), 327 (2) Littles To2 (4), 103 (5), 108 (5),
—— Johnstone Eg 29 (8), 257 (2) 599 (7), 662 iS
Johnston’s Estate 660 (3), 698 (7), | —— Lloyd and Wife Ba 1288 (7

787 (11), 999 (3), 1000 (8), 1008 (9), | —— Locke & Pepper 856 {6

1092 (13), 1216 (1), 1287 (2) — Lockhart - os 106 (8)

~—— Johnstons Minors 106 (3), 368 (5), | —— Logan 85 (4), 107 (2),
1208 (4) 1209 (5), 1229 (8)

—— Jones’s Estate ... 808 (2), 734 (3), | —— Londonderry nee, The Pews
1143 (5) of 246 (5)
—— Joyce’s Estate ... 628 (6), 1001 (3) | —— Lowe “448 QQ), 458 (4), 634 (8)
— Judge a. 447 (1), 1243 1) Lunham w- 86 (2, 8), 1230 (4)
—— The Juvenile Convicts Prisons — Lynch ... 86 (13), me G. ay
Act .. a 1082 (9)

—— Kavanagh’s Will” 3) 1881 (2) | —— Lynch’s Estate . 469 (6, ser 3

—— Keane. «1085 (13), 1207 (2) | —— Lyons ... 67 (3

ee Kearney’ s Estate 998 (2) | —— McAlister’ s Estate ‘674 (7), 833 (9),

—— Keily 135 (2), 391 (6), 1138 58) 1008 (7), 1209 (11

52 (3) | —— M‘Auley .77 Oy 468 (6), 92 8

— Keily’s Estate ... 631 (1), 639 (6) | —— M‘Auley’s Estate 996

—— Kellers Minors, 899 (4), 1173 (3) | —— M‘Carthy “87 (7), 404 (3)
Kelly ... ef i 883 (9) | —— M‘Cay 846 (9)

—— Kelly’s Estate ... a 1003 (5) | —— M‘Clintock 397 (9), 1238 (3),

—— Kelly’s Will, the Trusts of 72 (1, 1346 (4), 1407 G4)

126 (5), 322 (8), 679 (5) | —— M‘Colgan 67 (6, D, 1206 (2, 3)

— Kennedy sos 418 (11), 535 (8), | —— M‘Cook’s Trusts 1289 (1)

997 (8 1206 (9)

¢
—— Kennedy’s Estate 76 (8), 91 (7), 95 (5),
787 (10), 9 996 (5), 998 (10) 1003 (£)

—— Kennys’ as 368 (3), 899 (9)
—— Keogh... ex rae 1211 (4)
—— Keon ... 88 (4), 106 (4)
—— Kidd, ex parte Kirk cing 1096 (3)
—— The Earl of Kilkenny 613 (5), 809 (1)
— King . 451 (3), 639 (5)
— Kingston, the Earl of, The Estate

of as 483 (6), 997 (12)

—— Kirwan, "Assignee of Browne 1115 (4)
—— Knockatrillane Min. Co., ex parte

 

Chatterton... 3 141 (4)
—— Knox ... 212 (4), 884 (1), 998 (12,
1002 (9, 1019 (3), 1210 (3)
— Knox’s Estate ... 583 (7), 1001 (6)
—— Laffan aaa ee 1284 (8)
—— Lalor ... ees een 1087 (7)
Lambert on 2 822 (15)
—— Lanauze 904 eth 1391 (5
—— Lands of Freehill : 368
— Lane ... xe 994 fi

         

— M‘Cullochs 367
— M‘Dermott 5

— M'‘Donnell’s Estate
—— M'Intyre, Mackey,

— M'‘Kean

        

—— M‘Kenna’s Estate

— M‘Kibbin
— M‘Manus ds
— M'‘Neale’s Estate

—— Mackey’s Goods
— Mahon

—— Mahony z
— Mahony’s Goods
—— Malley :

 

—— Mann...

——MCullagh —‘101 (5), oie 637 (4)

(2), 394 (7), 482 (10)

483 (7), 612 (6)

563 (1), 1359 (2)

ex parte 82 (2),
107 (6
573 (1

. 87 (3), 938 (1)

Ts (9), 158 (3),

788 (2), 927 (3), 1000 (7), 1010 (4),
1148 (5), 1149 (6), 1194 (6), 1277 (3),
1295 1 1298 (5)

94 (6), 495 (8)
659 (3), 661 (4)
275 (2), 277 (2),

278 (2), 1362 (1)

. 1040 (10
385 (3), 995 (7

1023 (9), 1190 (4

1039 (8), 1044 (6)

1159 (5), 1243 (13)
934 (14), 943 (11)
[NAMES OF CASES.]

In re Martin 847 (9), 1045 (6),

1094 (2)
—— Martin’s Trusts... 733 (4), ee tas
Mason

—— Massey’s Estate...

 

eo,

"298 (1), 356 oy
328 (3), 485 (9)

—— Mathews Minors 1172 (5)
—— Mathews’s Estate 1380 (5), ne i
—— The Goods of Mecredy 1041 (4

—— The Mizen Head Min. Ce 41 (1), 138 4)
—— Moffatts Minors 399 (1

—— Molloys Minors 508 (4)
—— Molloy’s Trusts 909 (5)

— Molony 383 (2), 1288 (5)
—— Molyneux Minors 236 (3), 389 (2)
— Molyneux : é 1032 (6)
—— Monahan "609 (3), 610 (2)
— Monsel 226 (5); 603 (6)
—— A. Moore 517 (1)
—— Moorhead’s Estate 469 Q), ue Ata

17 (1)

— Morgan * 397 (6), ‘s59 (1),
475 (1). 742 (1), 745 (1, 2), 1147 (3),
1391 (2), 1402°(4)

—— Morrison 89 (5), 100 (5)

 

 

 

XXvVil

In re Parkinson’s Estate 636 (6

—— Parrott 84 pee); 107 (4), 1228 (12
— Paul ... 108 ica 1229 (4
—— Pell’s Estate ee 1001 (7
— Pennefather 1984 6
— pene & Locke a 856 (6
—— Perr . 168 (1), 172 (8), 181 (3),

449 (2), 1221 1 8) tags (n 1231 (il

—— Persse ; 72 (3), 1085 (2
— Petticrew a9 07 (5), 572 (7),
856 (7), 862 (14), 1181 (1), 1220 (I

—— The Pews of Londonderry Cathe-

dral “as 246 (5), 1180 (1)
—— Phelan 69 (3), 78(7), 96 ij
—— Phillips 648 (2), 1155 (4

110 (7), 228 (4),
650 (4), 1329 (3)

—— Piers’s Estate ...

—— Pilson’s Estate 461 (10)
—— Plant 2 1046 (5)
—— Plunket’s Estate 924 (4), 1882 (10)
—— Ponsonby 292 (5), 573 (8),

610 (10), 612 (11), 1034 (1)

—— The Earl of Portarlington 474

993 (7), 1077 (3)
39

Porter a minor 7 (3)

 

 

 

 

 

 

 

 

—— H. Morrow’s Estate oe 1000 (2) | —— Powell ‘67 (1), 364 (18),
— Morrow’s Estate 229 (1), 462 2 4), | 794 (15), 1117 (6)
23 (2) | —— Power 67 (10), 557 (3),
_— a Lord 859 (13), 880 (6 1204 (8), 1206 (5), 13852 (5),
— Mullen ‘ 101 (3), 104 (1 1385 (3)
— Murphy 398 (3), 1002 (10) | —— Power’s Estate 460 (8), 638 (4, 6),
—— Murphy’s Estate aa 1033 (3) 791 (7), 1244 (6)
—— Murray «. 96 (6), 394 (4), 895 (6), | —— Power's Estate ste 461 (4)
400 (1). 482 (7), 1229 (6) Power’s Estate, ex parte Taylor 460 (9)
—— Muskerry 135 (8), 588 (4), 604 i —— Viscount Powerscourt ... 898 (2)
— Poet Trusts 1292 (6) Pratt 406 (6), a ane
—— Nagh 100 (1), 308 (3) | —— Preager i
a Nash "207 (5), 305 (1), 744 (2), 1146 @ Prendergast ... 157 (4), 198 (5), 634 9)
— Naughton as —— Price 1024 (4, 7), 1205 (6)
— Needham 1288 (1), 1289 &y Primrose 282 (2)
91 (5) | —— Purcell 369 (1), 885 (10),
—— Nesbitt’s Estate ; 38 (8) 998 oe 1002 (8), ae (2)
—— Nesbitt 884 (2), 1211 (1) | —— Purcells Minors 63 (10)
— Newcomens Minors 617 (1), 1851 (8) | —— Purdon aes toll (8)
Nortott’s Estate 298 (2), 733 (4), 736 (5) | —— Quin ty 104 (2), 154 (3),
—O’Beirne 1265 (6), 1268 (1), 1351 (4), 161 ®), 515 (4), 1230 (1)
1358 (3), 1884 (1), 1397 (1) | —— Quinlan 1280
—— O’Brien 67 (2), 401 (1), | —— Quinlan’s Trusts “635 (2), 1286 ®
827 (3, 4), 932 (6), 1406 (10) | — 86
—— O'Callaghan 1138 (1), 1222 (1), | —— Ramsay’s Goods ise 1038 (13)
1251 (8) | —— Rathborne . .. 330 (6), 333 (2)
— O’Callaghan’s Estate... 1209 (9) | —— Read and others .. 1801), 619 (5),
—OConner.... 84 (7, 10), 115 (4), 1000 (6)
226 @r8 855 (14), 876 (1) |—— Reads : 97 (1)
— O'Dell “2 1801 (8) | —— Read’s Estate. 1000 (5)
— O’Dell’s Estate 302 (6) | —— Rea’s Estate ... 786 3
— O’Donel’s Estate ose 1392 (6) | —— Reid, F. & R. 96 (5
—— O'Donnell 1019 (8), 1046 (6) | —— Reilly... “473 (3), se Ls
—— O’Hea 997 (2) | —— Reilly’s Estate .. , 787 (8)
— O™Malleys | 867 (4), 399 (6), 1237 (5) | —— Reviils o 540 (3)
— O'Neill 78 (8), 1035 (12) | —— Reynolds ve 83 @, .
—— O’Neills Minors 501 (3), 808 (8),| —— Richardson... 4
1136 (4) |—— Roberts 370 (2), 505 (4 Ee
—— O'Reilly 7 678 (6), 698 (4, 6), | —— Roberts’s Assignee : D ( », lll : ro
713 (13), m8 (4), 1281 (3) Robin’s Estate .. 1000 (5)
cei Trust ... 424 (3), i . anes 98 (2), ‘108 (6), 1230 (25
+— Orpen aia 1 —— Koche... 765 6), 1264
—— Osborne 294 (1), 554 (4 Ce, ‘1801 (43
—— Otway’s Estate 1108 (7), 1817 (8) | —— Roche’s Estate... te 999 (5
— Owen 1036 (8 Roddy’s Estate... 629 (3), 1148 £5
—— Page ... 417 (1), 884 (11), 1816 (1) | —— Rogers _ .. 81(6), 475 (45
xxvili

 

 

 

 

 

 

[NAMES OF CASES.]

 

 

 

In re Rogers’s Estate 994 (9) | In re Tobyn 916 (12)
Joseph Rogers .. ie 1042 (4) Tottenham’s Estate 145 (1), 462 (9),
—— Ronayne’s Estate 356 (1), 473 (6), 529 CD, 9 996 (3), 998 (6), 1880 ane)
995 (9), 999 (10), 1116 (1), 1211 (7) Trant.. = 53 (8
—— Rorke’s Estate ...214 (6), 219(5), 220 (5), | —— Tully : 846 (7), 380 (11)
231 (3), 265 (5), 272 (2), 355 2, aes Tare ore Betate ...509 (8), 591 (4)
645 (2), 650 (3), 996 (4, 1150 (4), | —- Turnley 609 (5), 613 (9), 865 (12)
1158 (1), 1166 (7) i
—— Rowles 484 (7), 612 (4), 906 (4) | —— Tyndall 53 (3), 58 ©, ans (3)
-— Ryan... .-96 (2), 176 (3), 226 (8), | —— Uniacke 87 (11)
638 as ‘L228 (8), 1248 (9) | —— The Ulster Canal Co. ‘$69 (12),
—— Ryves.. 1088 (2) 884 (13
Sadleir’ s Estate | 911 (1) | —— Ure’s Goods 1040 (1
Sallery 114 (12), "314 (1), 1251 (7) | —— Ussher’s Estate 1002 3
Salter’s Trusts.. 370 (4), 399 (8) Vance 1143 1
Sanderson «. 77 (4), 108 (8), 109 (2) | —— Vogan, Dickson, ex parte 92°(3
— Scott .. 590 (4), 596 (1), 865 (9) | —— Wakeford 1285 (5), 1287 @
Scotts ...110 (1), 786 (1) | —— Wall, Wall, ex parte...
— Scott’s Estate ... 294 (2), 459 (5), |} —— Wall 83 (2), 85 (2), 86 Gy

1001 (1), 1108 (3), 1150 (1), 1161 (3)

 

 

 

90 (4), 933 (9), ts (9), 997 (9),

 

 

 

 

— Semple w. 232), 83(1), 86 (5), 1002 (5), 1228 (6)
93 (8), 178 (7), 179 (5), 487 (1) | —— Wall’s Estate ... sn 998 (13)
—— Shannon Commissioners 847 (1), | —— Waller 997 (13), 1112 (9)
859 (1), 884 #18), 1 1080 (9), 1816 (6) | —— Walsh : 87 (1), 92 a
—— Shaw .. 98 07) —— Walsh’s Estate.. ..185 (6), 998 (4
—— Shortt’s Estate. ae (6) | —— Ward’s Goods wel 1040 (13
Singleton ae 484 (5), 613 (14) | —— Webster et (9), 109 (8), i au
—— Skerrett ..472 (4), 483 (5), 612 (7) | —— Whalley 4
—— Slacke 545 (6), 994 (2) | —— Whitsitt 838 38(2), 1002 a
— Sleeman 1.287 Os 377 (5), ce ae —— Whittle 10 (5)
—— Sleeman’s Estate 6) | —— Whyte 288 (9)
—— Sloan’s Goods ... oes 1080 (9) | —— Wide Street Commissioners,
—— Smith... 777 (5), 999 (4 The .. 5 i 1081 (12)
—— Smith & Penrose 78 (1), 80 (4) | —— Wilkins 53 (2), 1144 (8
—— Smith & Ross ...461 (6), 638 (7), 1245 (2) |) —— Willomier’s Trusts 1377 (5
—— Smith’s Trustees ... 844 (8), 887 (5) | —— Wilton te 829 (11)
=— 8, Bi Ry. Cov ox 1082 (2), 1167 £33 — Woodroffe 110 (2), 786 (14)
—— Spread, ex parte O’Connell 484 (2) | —— Woodward 888 (8), 481 (11),
— Stauntons 314 (2), 1359 (3) 1038 (5
— Steele... 7 1187 (8) | —— Wrixon as 994 (3
—— &t. Georg e 995 (2) | —— Wrixon’s Estate .. 60 (4), 747 (5
— &. Gane s Estate “298 (3), 734 . — Wyse. 414 (1), 589 (2
747 (3) | — 930 (12), 1066 (5)
—— Stirling’s Estate 997 (11), 1106 Gy 1066 (3)
1285 (14) | Incorporated Society, The, v ‘Price’ 55 (8),
—— Stokes : 365 (10), 1060 (2) 121 (4), 122 (5)
Sullivan’s Goods ss 1040 (8) v Richards ...12 (6), 120 (2), 128 (1, 6),
Suir Island Charity Schools 121 (5), 124 (3, 4), 145 (3), 465 1), 582 (3),

125 (5), 1007 (6)
..388 (1), 664 (4)

 

Surridge’s Trusts

593 (6), 597 (4), 605 (3), 606 (1),
703 (2), 876 (2), 884 (14), 918 (25,

 

—— Sweny . 1002 (11) -922(18), 1229(9), 1233 (8), 1265 (4),
—— Swiney ‘555 (2), 1340 (6 1393 (4, 1371 (6), 1338 (4)

—— Symes me 1204 1 (84 v Rose.. 5802), 917 (6), 022 1)
—— Synge.. 994 (5) | Ingram v Russell... 823 (9)
—— Synge’s ‘Trusts .. 339 (1), 1364 (5), | Ireland v Kidd “669 (4), 671

1384 (3)
— Taaffe’s Estate... 151 he oe a8
—— Thomas’s Trusts

1394 a
—— Thompson’s Estate

276 (2), 576 (3),

1362 (45, 1381 (4)
237 (2), 994 (6)

19 (8), 28, 69 (6),

— Thornhill
—— Thornton

—— Thunders Minors

Be (4)
—— Tibeaudo’s Estate

“18 (10), 534 (4

—— Tibeaudo “998 (5), 999 (9
—— Tierney .-67 (9), 1204 (5
—— Tipping 994 (+
—— Tisdall’s Will, the Trusts of 821 (1),

376 (3), 1287 (3)

 

 

A

» Wilson 117 (2), 467 a
827 (7)

 

Irish Consols Mining Co., Re, ex parte
Banks. 140 ee 1405 (4)
Irish South “Eastern, tit Co., T
In re ... 834 oS 1310 (8)
Irons v Douglas... 209 (6), 1302 (7)

2)|Irvine v The Presbyterian Widows’

Fund Association 70 (8), 146 (1),
439 (6
— v Balfe 782 (7
—— v Cox... 169 (3
— v Deane

.. 140), 18 (4), 43 (6),
1236 an ve Oy iano

v De Ryther 2(3
[NAMES, OF CASES.].

Irvine v Frew 436 (4), 672 (11),

680 (4), 1149 (2

 

v St. George 784 (8
Irwin v Baker 889 (1
—— v Blakeley ee 1043 (9
— v Cuffe 273 (5), 1360 (2)
—vDeMassy ... oe 972 (10)
—vI. . 75 (2), 94 (2), 288

(3)

375 (2), 728 (6), 746 (1), 749
1187 (5), 1200 (8), 1228 (3)

 

 

—,Inre... 447 (8), 736 (3), 1108 (4),
1317 (6)

» Knox 1.1325 (7), 420 (2), 423 (1),
1013 (14)

v Nesbit 119 (3), 174 (8), 464 (4),

797 (7), 1232 (8)

v Robertson 1295 (3)

 

 

v Rogers “7768 (1), 838 (4), 865 (10),
888 (1), 948 (10), 1300 (7)
v St. George 953 (1)

 

Irwin’s Estate, In re...
Ivess v Hunt
Ivie v Gahan

1108 (4), 1817 (6
a 968 (4
in 112 (24), 820 (1),
837 (14), 841 (8), 1208 (6)
aS i 841 (3)

 

v Keogh
J

Jack v Tease... ies 268 (8), 476 (1)
Jackson v The Earl of Granard 1111 (14)
v Hamilton ... 52 (8), 55 (6),
430 (3), 548 (6), 559 (8), 560 (7),
1354 (5), 1398 (1)
, In re 507 (2), 548 (1), 1002 (4)
vd. 59 (3), 502 (10), 507 a2),
654 (3), 748 (8) 755 (7), 756 (2),
895 ts 1084 (7), 1099 (12)
v Rossiter 3 711 (4), 975 (4),
1202 (6)
es a 1069 (5)
905 (3), 909 (10), 912 (11),
1091 (2)
60 (6), 151 (7),
166 (4), 317 (2)
427 (2); 1367 (4)
416 (5), 427 (1),
729 (3)
James v Smith . 856 (10), 1008 (16)
Jameson v Farrer 59 (2), 171 (8), 322 (6),
337 (4), 502 (9), 507 (9), 861 (12),
891 (10), 892 (3), 1084 (6), 1098 (9),
1265 (1), 1290 (4)
-v Searry 1026 (10), 1052 (3)
Jauge v Jackson ...832 (5), 852 (4),
861 (5)
... 493 (1), 716 (9
Jeffereyes v Goodwin .-. 902 (2), 913 1
Jennings v Bond ... 61 (4), 127 (6), 550 (3),
551 (2), 607 (9), 1224 (4), 1242 (7),
1323 (8)
——,, In re 93 (5), 100 (7), 457 (4),
642 (5), 941 (11), 1164 (4), 1167 (9)
,Inre 297 (8), 1147 (4), 1159 (6),

1234 (7)
Jephson v Maunsell ... 508 (3), 1077 (7),
1138 (5), 1222 Go

 

 

 

 

—— v Rutledge
v Walsh

 

Jackson’s Estate, In re

 

Trusts, In re
Jager’s Trusts, In re

 

Jebb v Hardman

 

v Minton
Jessop, In re

 

ie 1101 (2
554 (5), 1106 (5), 1899 (1

Johnson v Biron 688 (4), 868 (12), 987 (8
v Brady 271 (3), 302 (8), 852 (9),

887 (15), 1857 (2), 1872 (4), 1406 (15

 

 

 

 

 

 

 

 

xxix

Johnson, Ex parte 993 (2
v Gray ee nes 1281 (4

vd. 3874 (12), 930 (10), 934 (8),

1065 (3)

vy M‘Auley_ ... 796 (9), 805 (9)

v M'‘Donnell ... 1070 (12), 1179 £3

v Madden 688 (12), 818 3)
y Mason 1053 (1), 1072 (8

 

 

v The Mid. Gt. W. (of Ir.) Ry.

 

 

 

 

Co. 200 (1), 471 (1), 926 (8), 939 (3),
950 (10), 958 (15), 1092 (3)
» Molloy 801 (6), 804 (3)
v Perrin oi 1135 (2)
, Re ... re 96 (4)
v Reardon 1065 (13), 1098 (14) -

 

v Tottenham ...
v Worthington
Johnstone, Re Johnstones

 

1078 (4), 1082 (12)
e 697 (3
368 (7), 866 (7)

 

 

 

 

, In re ee 29 (3), 257 (2)

v Kirkwood oe 799 (9

» Linde 823 (1), 846 (4
Johnstons Minors, In re 106 (3), 368 (5),
1208 (4)

Johnstone’s Estate, Inre 787 (11), 999 (3),
1000 (8), 1003 (9), 1092 (13),
1216 (1), 1287 (2)

Johnston v Anketell... Ss 1038 (9)
v Dub. & Meath Ry. Co. 463 (6)

 

v Henderson... 1018 (20), 1082 (3)
v Howison 488 (4), 570 (3), 602 (2),
. 727 (3

 

 

 

 

 

, In re 86 (8), 327 (2)
Vd. we de wed 825 (4
v Lloyd 291 (3), 1274 (1), 1291 (6)
v Moran age 26 14 (2

Johnston’s Estate, In re

"660 (3), 698 (7
Johnston v Tottenham o i

361 (9), 792 (4),
989 (5), 1120 (10
“a 685 (4), 809 (5
364 (11), 724 (1), 899 (10),
910 (11), 927 (12), 928 (7)
368 (11), 717 (3)

Joly v Leyden
v Swift

 

Jones v Geale

 

 

 

 

 

 

 

 

v Ham 224 (7), 400 (11), 402 (1),

633 (8), 902 (10), 1238 (8)

v Heard 28 eas 1295 (2)
— v Hewett 818 (15), 857 (13
vd. ue os Es 747 (1

v Tee es Brey oe (3), 882 (8),
, 2 (2), 646 (2

reer) , @), 646 (2),

v Moffett 7 (8), 1214 (5)
v Montgomery ... eer 991 (10

v Ogle ... .. 1889 (1), 1341 (6)

» Ryan 2T4 (4), 575 (6), 1360 (5)

v Stokes

 

101 (6), 185 (1), 255 (7
448 (8), 451 (4), 786 (9), 1010 cry
1026 (1), 1228 (9)
v Waller

Jones’s Estate, In re...

i

 

948 (2), 1258 (1)
303 (2), 734 (3),
991 (10), 1143 (5)
Jordan v Gray axe 1 (8), 966 (10)
Joyce v De Moleyns... 637 (2), 871 (6),
873 (1), 1821 (9)

-.- 88 (1), 46 (4), 150 (1),

204 (1

456 (9), 599 (8), 602 (5), 795 ra
830 (9), 1242 (19

628 (6), 1001 (3
447 (7), 1243 (11

17 (2), 70 (1), 71 (1),

651 (4)

 

v Hutton

 

vd.

Joyce’s Estate, In re
Judge, In re
Justice v Wynne
xxx

Juvenile Convict Prisons Act, The

 

 

 

 

 

 

In re 1032 (8)
K

Kane v Delany 893 (10), 1072 (7)
, Ex parte on 1294 ‘3

v Johnson 821 (3

v Johnston < 384 (4
v Mussin 169 (6), 1292 3
v Potter bas 1260 (4)
v Russell 861 (6)
v Stewart 473 (8), 1036 (1)

 

Kavanagh v Waldron 24 (4), 198 (4), 410 (1)
Kavanagh’s Will, In re ee 1381 (2)
Kavenagh v Murphy 1013 (3), 1066 (8)
Kealy v Bodkin 581( 2), 1063 (6),

1240 (5)
Keane, In re 1035 (13), oe (2)
Kearney’s Estate, In re 98 (2

Keatinge v Garde 704 (6), gi (5),
1026 (14)
vo K. 885 (3), 1102 (8)
Keegan v Fenton 946
Keene v Bannon
v Johnson
Kehoe v Hales

Keily, In re
vK.

 

1033 (13), 1068 ‘55

68 (1), 309 (6)

295 (1), 572 (3); 1153 (2)
135 (2), 891 (6), 1136 (6),
1152 (3)

205 (7), 211 (4), 748 (5),
970 (8

 

 

Keily’s Estate, In re ... 631 (1), 639 (6)
Keily v Murphy 501 (2), 1168 (2)
Kelinge v Audley... ats 813 oo
Keller Minors, In re 399 (4), 1173 (3
Kellett v Farrelly 436 (3), 1108 (1)
v Ku... 1944 (1); 1850 (7)

 

 

 

v Kelly 955 (7), 1217 (9)
Sturgeon 929 (7), 1068 (10),

1262 (1)

Kelly » Achmuty 849 (7)

v Bennison

 

944 (8), 1222 (12)

 

 

 

 

 

 

v Birch «. 2 (1), 265 (2), 350 (1),
796 (5), 991 (4), 1129 (3)
v Bolger eee 812 (11)
v Bonynge 1075 (10), 1115 (8
v Butler 1061 (8
v Dunbar... 1021 (7), 1042 (7),
1042 (11), 1044 (9), 1045 (18),

1046 (11)
—,Exparte .. 788 (6), 1127 (5)
v Fox ose on 948 (11)
——, In re 883 (9)
—— v Jackson . 360 (6), 691 (5), 704 (5),

725 (8), 886 (8), 945 (7), 1208 (11),
1216 (2, 3)

. .. 112 (8), 834 (6), 860 (7),
866 (8), 882 (2), 891 (6), 1040 (2),
1043 (1), 1077 (15)

v Lennon — ... 208 (2), 295 (5), 301 (4),

486 (5), 560 (5), 687 (6), 816(10, 11),
894 (3), 896 (3), 899 (5), 903 (99,
911 (5), 1078 (8), 1127 (2)

e

—— v Magee 814 (2), 841 (9),
“894 (8), 1327 (10
—— v Moore . 848 (1), 850 (12
— v Murphy 327 (4), 712 (6)
— v O'Brien 1073 (5)
—— P., Re 88 (5
—, Re 82 e
——., Hugh, Re 83 (4

) | Kelson v Lewis

 

[NAMES OF CASES.]

Kelly v Rutledge ... 601 (4), 677 (3),
825 (18, 15), 1055 (12), 1082 (2)
v Skelton .. 827 (2), 1245 (6)
v Thewles “816 (18), 1094 (5),
1338 (6), 1346 (5
’s Estate, Re... 1008 (5), 1219 (2
——’s Will, Inre the Trusts of ... 72 (1),
126 (5), 822 (8), 679 (5
586 (3), 951 (14), 952 (1
Kempland v Humphries ... 1291 (2)
Kennedy v Cruise... 787 (9), 1407 (16)
v Daly... 283 (3), 309 (2), 1187 (4)
, Ex parte... 139 (3), 140 (3), 390 (2),
439 6, », 441 (2), 993 (1), 1201 (9)

 

 

 

 

 

 

 

 

 

 

 

, In re 418 (11), 535 (3), 997 (3)

’y Kelly 236 (4), 481 (9), 679 (6),
924 (7), 944 (3)

vK. 1372 &

v Lloyd 779 ®) 962 @), 966

v Turnley... 1285 (9

v Whitney ae 454 (4), 1061 (4)

 

’s Estate, Inre 76 (8), 91 (7), 95 Or
787 (10), 996 (5), 998 (10), 1003
Kennefick v K. ... .. 898 (2), 1829 ‘
Kenny v Clarke ... 455 (3), 1081 (8

 

 

 

 

 

 

 

 

 

 

v Curhming . 1054 (2), 1062 (3

v Jessop ... . 904 (1), 1084 (13

ok. o.. 1042 (13

v Lynch ... 1304 (8, 5
Kennys Minors, In re 368 (3), 399 (9
Kent v. Burrowes «- 943 (8)
v Roberts 496 (8), 916 (6),
937 (7), 1326 (8)

v Stoney .. «. 506 (2), 543

Keogh v Barrington 944 (10), 1209 (8), a (7)
,Inre... 114
v Cathcart «=. 380 (5), ‘381 (5),
868 (14), 1117 (7, 16)
v Collins... 489 (4), 979 (8), 1051 (6)

v K. ». 874 (3), 404 (11), 841 (18),

918 (2), 934 (9), 1066 (6), 1097 (29,

 

 

 

1315 (5)
v Murphy 805 (5
v Wall °. i 1. 868 (5
v ee . 411 (1), 419 (11)
Keon, In re ae aa 88 (4), 106 (4)
—— v Magawly .. 714 *: 716 (6), 717 (1)

Keons v Magawly . 822 (13), 1116 (7),
1214 (3)
Keough v Waring . 880 (11), 1065 (9)
Kerr v Lord Dungannon ... 357 (4), 511 (1),
641 (4), 672 (4), 893 (2), 1133 3)
1291 (8), 1294 (10), 1326 (7),

1355 (6), 1378 (9), 1379 (5)
1372 (8)

Ker v Hardman .
940 (7), 1132 (1)

Kerin v Davoren | fan
Kernaghan v Kells 672 (18), 727 (5), 933 (8)

 

» M'Nally . 288 (2), 607 (1),

1008 (15), 1277 O

Kerr v K. 199 (1), 312 (3
Kerrison v Redington 5638 (6), 658 (2),
1382 (3)

Keyland v The Corpn. of Belfast 145 (1),

911 (13), 985 (8), 1264 (2
me .. 366 (6
808 (9), 912 (10

Keys v Lysaght
Kidd v Farran ...

 

 

v Frazier ... "1185 (3), 1187 (1
, In re, ex parte Kirk 1096 (8)
Kiely v K. 1199 (5)

Kieran v Corr ... 446 (9), 1096 (2), 1225 @),

43 (3)
[NAMES OF CASES.]

Kiernan v K. 816 (7), 936 (7), 952 (4),
1045 (9

xxxi

Knox v Kelly 448 (10), 584 (1), 593 (11),
1221 1 (8) 1240 (8), 1242 (1), 1820 (7)

 

 

Kilkenny, The Earl of, In re 613 (5), 809 (1) vK. . 250 (2), 798 (7), a Ae
Killen v Campbell 239 (3), 377 @ on 3)

5)|—— v Mahon 672 Oe 90 i
Killikelly v Molton 365 (is), 928 1) v Marley (18)
Kilmartin, Re ... 80 (3) | —— v The Earl of Mayo "936 a, ‘989 (4),

Kilworth, ‘Lord, » The Earl of Mount-
cashel 263 (1), 285 (8), 309 (4),
422 (4), 697 (6), 1148 (6)
Kimberley v Tew 12 (9), 424 (5), 428 (2),
481 (4), 549 (5), 560 (4), 955 (8),
1009 (3), 1366 (7)
Kinahan v Bolton 19 Os, at (3)
King v Brownrigg 83 (13)
» The Commrs. of Public Works:
1008 (13), 1235 (4)

 

 

 

(1) | Labarte v Constable...

 

—— v Daly 157 (6), 1156 (3)

—— v Edie « 8511)
v Field «- 842 (9)

——, In re «451 (3), 639 (5)
v K. 252 (4), 569 (3), § o De
v O’Brien 1076 (7)
v Roney

 

46 (2), 520 (4), “49 90),

——, The v Lidwell 708 (3), 108 aH

 

 

 

1) | Lahey v Bell

656 (4), 879 (2), a2 (15, 1803 (4)

 

 

 

 

v O’Brien 82 (11), 1210 (7)

v Potter a 1250 (2)

v Waters 1479 (6), 826 ,§ a Hee

3

v Watters 609 (10), ee ee ai (3)
Knox’s Estate, In ... 33 (7), 1001 (6
Kyle v O’Connor eS (6), 644 3

Kyme v Duignan 266 (5), 582 (7),

"BOT (7), 672 (9), 1310 (4)
K
L’Estrange v White 4 (12), 10 (8), 14 (4),
871 (2), 1071 (4)

285 (3), 435 (6),
1076 (3)

1284 (8)

"856 (2), 870 (9), 1095 5B

Laffan, In re

 

 

 

 

 

Kingston, In re The Earl of eee 83 (6) | Lahiffe v Gregory ...481 , 656 (1), ‘609 Gy
, Earl of, In re the Estate of a7 (12), 991 (3), 1245 (7)
1002 (12) | Laird v Murray 978 (2)
Kinneen v Persse 84 (4), 65 (7), 66 (4), | Lalor v Drew 470 (8), 1017 (11)
930 (6) Inte... as 1037 (7)
Kinsale, The Earl of, Ex parte 1405 (5) v Netterville 255 (10), 492 1
Kinsella v Caffrey 1350 (2, 3) 1086 (9)
Kirby v O’Hea oe 270 (1), 903 (6), | Lambert, In re 822 (15)
1098 ®, 1311 (109, 1357 (6) vL. ‘-157 (5), 218 (6), 808 (6),
v O’Shee 635 (4), 864 (4), “966 (5), 971 (2), 1280 (2)
884 (8), 1152 (5) v Peyton 787 (7), 791 (4, 5), 855 (1),
—— v West «. 1365 (8) 961 (2, 3)
Kirk v Edmonstone 694 (7), 823 (8) | ———, Re ie 95 (9), 494 (12)
, Ex parte Kidd, In re ... 1096 (3) | Lamphier v Despard. 837 (3), 852 (6),
——» Flood ... we 235 (4) 1348 (2), 1855 (10), 1375 (49,

—— v Houston ...1051 (10) 1394 (6), 1888 (2)
Kirkwood v Lloyd .. 411 (7), 413 (10), v Drapes 280 (5), 575 (4), 761 (2)
446 (10, 11), 600 (4), 601 (1), | Lanauze, In re 904 (5), 1891 (5)

951 (6) v Malone

Kirwan v Burchell 29 (7), 40 (6),

46 8) 1198 (4)

 

 

 

 

v Cullen 1278 C1)
v Fitzgerald ‘ 393 (10)
, In re, elgnce of Browne 1115 (4)
v Gorman . 20 (7), 28 (1), 259 (6),
“B72 (5), 898 (8), 914
uLindsay 480 (4), 673 (1), 932 (10),

 

933 (3), 949 (6), 986 (5)

 

 

 

 

) | Lanesborough, The Earl of, In re

 

Lands of Freehill, In re
Lane, In re
—v Lynch

985 (4), 533 (5), 759 W
es 368

260 (1), 628 (5), 1085 aah
42 (11)

456 (4), 677 (. 84 (4),
1070 (15, 1076 (1}

483 (4),

611 (2, 5), 612 (3)
999 (6), 1157 (3)

 

v Townsend

Lane’s Estate, In re...

 

 

 

 

v The Earl of Portarlington 703 (6), | —— Trusts, In re 443 (5), 1272 (4)
711 (3), 1299 (2) 1359 (4)
Knight v De Blaquiere, Lord 808 (7), | Langford v Carroll ... 1111 (8)
839 (11) , In re, ex parte Leech 30 (2)

» Nagle 842 (8) oLittle — ...198 (2), 368 (8), 369(7),

» Wilson 840 (14) 370 (6), 762 (6), 1207 2), 1345 (2)

Knipe v M‘Mahon 112 (4), - a 1370 (5), 1402 (1) ,

, Lady, v Mahon

Knockatrillane Min. Co. The, In re, . : "a0 ae 1020 (63
ex parte Chatterton 141 (4) v Mahony 327 (10), 764 (1), 786 (4),
Knox v Duffield : 302 (5) 844 (12), 864 (12), 1091 (12)
, Ex parte 505 (1), 509 G 5), | Langfords, In re 502 (11), 1084 (9

546 (6, 7, 8) | Langley v Aylmer i ‘1088 (12

— v Gavan 828 72) Langrish v Cottenham af 1079 (3
—, Inre... 212 (4), 998 (12), 1002 (9), | Langley v L. ..53 (4), 502 (5), 1079 (1),

1019 (3), 1210 (13)

 

1171 (1), 1367 (5)
XXX11

Lanphier v Despard
Larkin v Kenny... 1070 (11
v The Ear] of Rosse ... 271 (1),
1105 (4), 1815 (1)
839 (5), 967 (11),
1011 (2), 1122 (2)
v The Earl of Lucan 167 (2), 170 (1),
179 (1), 608 (4), 1282 (1)
Latouche v O’Brien... 183 (2), 586 (5),

...811(3), 560 a

 

La Touche v Lawlor

 

 

1152 (7)

v Pallas en 1135 (4)

Law v Moore bez "362 (9), 800
v Warren .. 43 (10), 52 (5), 168 (

 

338 (9), 407 (5), 408 Os

Lawder v Blachford... 136 (7), 581 (2),

 

 

 

 

690 (13)

, In re +. 75 (4), 91 (8), 468 (1)
Lawder’s Estate, In re 262 (4), 1148 (2)
Lawler v Drew 963 (7), 1010 (11),
1109 (5)

v Lowry 447 (2), 467 3

v Metcalf 1041 (6
Lawlers, In re ‘847 (4), ae ae
Lawless v Grogan ... 36 (2)
, In re 505 (3), “509 (4), 546 (7)

» Mansfield ...6 (2), 7(6), 8 (3), 49 (5),

 

354 (5), 356 (5), 413 (2), 621 (4),
630 (2, 7), 676 (9), 1213 (2)

Lawlor v Scollard os 1037 (3)
Lawrence v Blake 789 (14), ne AN
Lawson v Griffin... 80 (7)
Layard v The Marquis of Donegal 327 (3),

546 (9), 786 (7)
Le Capellain v Kingston 804 (13)

Le Grand v O'Neill . 709 (1), 719 (2),
1028 (14), 1059 (12), 1095 (9)
Leach v Tisdall was

1060 (7)
v Wallace 788 (1), 1294 (6)
Leader v Ahearne

1. BO (1), 188 (4), 177 B),
1306 (6

715 (7), 1100 (3),

1277 (1), 1312 (3)

36 (11), 44 (5), 1811 (1),
1315 (3

61 (1), 202 (2)

es 829 (5)
~ 1288 (2)
.. 1018 (11), 1101 (15
. 80(2), 393 (5), 482 (3),
1208 (1

 

Leake v L. ...
Leathem v Allen

Leathley v Trench ...
Lecky v Bell oo
Ledwich, In re
Lee v Poole
Leech, Ex parte

 

 

 

 

 

 

 

—,Inre... «..467 (7), 490 (8), 532 (6),
872 (12), 1224 (8), 1239 (5)
v Law... 79 (4), 861 (18), ne OF
142 (1
vl... 660 (1), 1199 (4)
v Mulloy 1801 (9)
v Tyndal 51 (3), 58 (5)
Leeson v L. 842 (6)
Lefroy v Flood 1270 (1), 1884 (5)
v Gore 1 (5), 136 (9), 835 (3),
1164 (
v Lee 7 me? 694 (3), re
, Stein & Co., 97 (7
Legg, Inre.. er 1284 (5)
Leishman v The Corpor ation of Lon-
donderry 267 (7)
Leitrim, The Earl of v Enery 3807 (2),

611 (4), 612 (1)
605 (2), 1133 (4),
1241 (6, 8
743 (1), 1872 (3

Leland v Murphy
Lendrick v Russell ...

 

[NAMES OF CASES.]

 

Lenehan v M‘Cabe ... eee 1154 (2)
Leonard v Hartwell .. 366 (4), 1407 (4)

vL... xe 202 (4), 278 (1)
Leslie v Lord Dungannon 879 (4)

112 (22), 116 (6),
266 (J), 382 (1)

 

v Verschoyle

 

Lester v L. . 1279 (7), 1297 (6)
Levinge'v De Montmorency .. 972 (7)
Levy, Ex parte 105 (1)
Lewin v L. 363 i 782 ae ieee 1)
Lewis v Fitzgibbon .. 1239 (2
v Swift 1399 (5
Lidwell v L. “421 (6), ‘g48 (4), 887 (11)

Lightburne v M‘Evoy
Lighton, In re

379 (4), 386 (5)
624 (8), 642 (7), 999 (1),
1022 (2

Lilburn, In re 7
Limerick & Wat.. Ry. Co.,
O’Ferrall B74 (3), 1219 (5, 6)

, The Bishop of, v Stephen-

243 (5)

so
Limericks “The Earl of, Estate, In
re 461 (9)
Lindley, in ‘the Goods’ of aa 1040 (7)
Lindesay v L. sas 674 (3), 693 (4),
724 (4), 816 (6

 

 

 

 

Lindsay v Downes 1088 (3
, In re 1354 (10)

‘oL. “936 (6), 947 (6
v Spottiswood ae 1007 (9
Linehan, Ex parte, inre Hennessy 483 (9),
612 (2)

v Cotter

 

417 (3), 1104. (4),
1316 (7), 1819 (5)

 

 

Lismore v Chamley ... 1139 (2)
, Lord, v Vaughan... 547 (1)
Listowel » Callaghan Td (), ae
Little v Comyn wee a 16 (15)
»Inre ... 103 d, 4)

‘vl. 1204 (9)

 

Littles, In re 102 (4), 103 (5), 108 (5),

599 (7), 662 (1)
Littlewood v Brierley See 1063 (8)
Litton v Power 613 (13), 829 (12)

Livesay v Maxwell 695 (4), 824 (9),

 

 

1022 (22)

v O'Hara 1287 (5), 1291 (1)

Lloyd and Wife, In re aus 1288 (7)
v Armstrong 1019 (17), 1026 (3)

WIR ss 806 (1)

 

417 (11), 430 (4), 477 (9),
732 (1), 733 (1, 3), 1186 .(2),
1189 @)

v Massy

 

 

 

 

 

Lock v Lynam 662 (5)
Locke v Ashe 1082 (11)
& Pepper, In re.. 856 (6)

v Darley 51 (6), 443 OF 870 A

88 (5)

» Evans 248 (4), 260 (4), ‘996 QB),

491 (25, 1153 (4

v Evans oa 1083 (4
Lockhart, In re 106 ey

Lockhart's Trust, ex parte Lady Lock-
hart 23 (5), 114 (7), 316 (2), 236 (7),
400 (5), 615 (1), 838 (12), 867 (1),

917 (3), 919 (7), 1287 (4), 1408 (13)

Loftie v Forbes 837 (9), 861 (4), 885 (9)
Loftus, In the Goods of ee 1042 (9
v Stoney 1340 (1), 1873 (6), 1886 (8

Logan, In re 85 (4), 107 (2), . 1G)

29 (8)

 
[NAMES OF CASES.]  ~

Lombard v Hickson 348 (8), 353 (7), 528 (3),
: 650 (1)

1

8

Long v L. | 345 (4), 484 (4), 506 (3), 543
682 (4), 688 (12), 709 Os 719 3

778 (2), 842 (4), 950 0), 991 L (6)

Londonderry Cathedral, In re the Pews
of 246 (5), 1180
Londonderry v L. ... 11838 (5), 1274

 

 

v Tottenham 2 (2)

v Wolfe 980 5)
Longfield v Carpenter 1036 (2), 1207 (5)
Loughny v Dillon 861 (6), 902 . 3
Loughrey v Lahiffe ... 382 (7), 828 (9
Lovatt v Knipe . 4(10), 9 5 a ane
Love v Willcock a7 (4)

Loveday v D’ Esterre -.. 1053 (10), 1118 (6)
Low v Holmes 112 (17), 220 (4), 223 (1),
316 (4), 355 (3), 1215 (5

Lowe, In re ... 448 (1), 458 (4), Oh 8
—— v Lucey mis 7
Lowry v Lord Dufferin ..27 (8), rey (5),
705 (3
Loyd v L. 197 (6), 237 (1, 5), 277 (6),

295 (4), 841 (2), 877 (1), 868 (11)
906 (8)
Luby v Hamilton oi 428 (4), 429 (2)
Lucan, The Earl of v O’Malley 7 (5), 8 (4),
723 (4), 880 (2), 336 (9), 949 (8, 4),
1024 (6)
Luckie v Forsyth .. 6 (), 10 (8), 658 (1),
662 (3), 1120 (5
Lunham, In re 86 (2, 3), 1280 (4
Lupton v Stephenson 1007 (11), 1057 (1)
Lurting v Conn 491 (8), 982 (1), 1835 (5)
Luther v Bianconi. ... 1276 (1), 1280 (1)
Lymbery v Helsham... 1057 (11), 1072 (10)
Lynch v Cooke : 1161 (2)

 

 

 

 

—,Inre ... 86 (13), 106 (2, 6), 1280 (8)
— v Joyce 395 (7), 401 (7), 889 (12),
894 (6), 937 (6), 948 (5), 950 (5,)
1094 (13)
— v Kelly 890 (2), 892 (8), 1009 (8),
1095 (7
—ovL. 927 (5), 950 (6), 73 Be
25 (3
— v Nolan is ac (10)
v Skerrett ‘413 (5), 862 (1), ce (5),
v Skerritt 5 < ot 34 (413
Lynch’s Estate, In re 469 (6), 997 (1)
Lynskey v Handcock ah 1119 (11)
Lyons, In re eu 67 (8)
Lysaght v Cullinan ... . 937 (10
O Diss 787 (2), 82 BG 1390 (2
v Royse ai 18 (8), 570 (5),
11380 (6)

Lyster v Blake
v Burroughs

 

ae xe 782 (6)
158 (6), 301 (1), en Ch
3 (6

 

 

v Mahony 237 (4), 38 (3)
v O'Sullivan 13845 (8), 1392 (4)
—, Re © i 88 (10)

M

M‘Alister v Martin. ... 1054 (6)
» Walsh 525(10), 1007 (3), 1010 12),
1(2)

674 (7), 1638 (9),
1003 (7), 1209 (11)

 

M‘Allister’s Estate, In re

3) | M‘Creight v M‘C.

 

Xxxiii
M‘Alpine v St. George 795 (3), 1089 (3)
M‘Anaspie v Dickson 470 (11), 972 (14)

M‘Auley v Clarendon 227 (2), 826 (5),
358 (4), 460 (3), 527 (5), 1159 (7),

1244 (2)
, In re 77 (6), 468 (6), 992 (8)
vM‘A. 321 Oy 331 (1), 670 10>
S 96 (1)
‘541 (3), 708 ©

 

 

M‘Auley’s Estate, In re
M'Birney v Allen
M‘Blain v Swanton 1388 (3), 1408 (5)
M‘Bride v Clarke 954

v Malcolmson 827 (5), Ko

M‘Call v MC. 249 (5), 371 (3), a7 (8),
1006 (11), 1180 (3)
789 (12), 895 (9)

 

M‘Can v O’Ferrall

 

 

vO’Connor 906 vey 910 oe ae me
M‘Cann, Re 5 1)
M‘ Carthy v The Attorney- -General 1273 (3)
v Barry : 289 (8), 472 (1)
— v Daunt 587 (6), 1194 (5)
——- v Hatch

. 4 (6), 699 (5), 703 a

v The Earl of Kingston 1138 (7)
v MC. ... 69 (1), 70 (6), 128 (3),
243 (4), 857 (5), 788 (5), 844 (19,
854 (16), 944 (10)

v Mathews 1019 (14), 1044 (4),

1078 (1), ee (6)
& Co, Re... 89 (1)
,Re .. oe "87 (7), 404 (3)
M‘Cartney v O’Neill 668 (1), 781 (8, 9),
899 (2), 1028 (8), 1054 (7)

 

 

 

 

 

 

 

 

v Simonton 393 (6), 482 (4),

794 (10)

M‘Caul v M‘C. ee 1072 (9)

M‘Causland v Wynne 836 (1)

v Waters ee 1384 (8)
M‘Cay, In re 846 (9)
M‘Clintock, In re 397 (9), 1238 (5), 1846 (4),
1407 (14

v Irvine 271 (6), 315 (3), 1272 ass

1276 (3)

v Knox 1111 (9)

M‘Colgan, In re i + 1206 Q, 3)
M‘Collum v Crawford 688 (12, 777 (11),

778 (12)

M‘Conkey v Gwynn ... 810 (6), 856 (8)
v Gwynne 93 (6), 678 (8), 689 (1, 2),

779 (6), 792 (6), 858 (11)

M‘Connell v Crothers 328 (5), 564 (4),
1181 (7), 1147 (3)

 

 

M‘Cook’s Trusts, In re 1289 (1
M‘Coote, Re 96 6
M‘Cormick, In re 1206 (9)
v Mur phy oo. ai J18 (38
M‘Cracken v M‘C. 917 (4

823 (5), 369 (10), 396 GS
564 (1), 664 (2)
101 (5), 360 (10),
3 637 (4)
367 (2), 394 (7),
M‘Cullogh v Legg... a Str
M‘Cullagh v Rogers ... 464 (6), 1290 (7
M‘Curdy v Chichester see 1063 (16
v Martin ae 455 (6), 974 (7
M‘Dermott v O'Connell 364 (10), 952 (2),
1008 (i)

F

M‘Cullagh, In re
M‘Cullochs, In re

 

@
EXxXiv

700 (3), 715 (4)
483 (7), 612 (6)
1064 (8), 1222 (7)
1232 (2), 1241 (10)
. 11 (3), 825 (1D,
935 (3)

.' 844 (1), 497 (8),
525 (5), 586 (4)

v The Grand Canal Co. 964 (3),
985 (2), 1166 (3), 1227 (6)

M‘Dermott v halal
, In re
—— Moylan

 

M‘Donnel v Alcock
M‘Donnell v Burnett

 

 

 

 

v Jebb 288 (1), 1366 (1, 2)
v Malone... 1058 (1), 1071 (8),

1227 (3), 12438 (8)
v MD. 250 (6), 253 (8), 1188 (7)

 

v The Mid. Gt. West. (of Ir.)

Ry. Co. _... 866 (9), 814 (13), 821 (9),

964 (3), 985 (25, 1166 (3), 1223 (3)

vy Walshe... 9 (1), 181 (5), 255 (2),
458 (8), 901 (5), 1175 ®

» White SF ~ 942 (4

 

 

M‘Donnell’s Estate, In re 563 (1),
1359 (2)

M‘Dowell v Reede 5 on ie oe
M'‘Erlane v O'Neill... "979 (6)
M‘Evoy v M‘E. 501 (9), 1083 (13),
1135 (5)

M‘Gee v M‘Donnell ... on 1127 (1)
M‘Gauran v Furnell ... 1227 (6), 1129 (1)
M‘Gowan v Hall __.... 953 (8)
M‘Geehan v Rankin . 393 (9), 402 (10),
1113 (2), 1226 CO? 1238 (2)

M‘Ghee v Mahon 1029 (11), 1217,¢4)
M‘Grath v Heeran ei 798 ,
M‘Girr v Jervis 966 (4)
M‘Gusty v Frazer 1121 (1)
M‘Heath v Taylor 842 (5)
Millroy, Re .. 89 (2)
M‘Inherny v Galway... ou 496 (5)
M‘ntyre, In re, ex p. Mackey eo 82 (2),
107 (6)

: 1223 (5), 1267 (3)
. 78 (8), 96 (8), 100 (23 Q),

397 (2), 495 10
509 (2)
JInr w.. 87 (8), 93 1)
y The Mid. Gt. West. (of Ir.)
Ry. Co. 2 658 (3), 1165 (3)
M‘Kenna’s Estate, In re 18 (9), 158 (3),
788 (2), 927 (3), 1000 (7); 1010 (4),
1148 (5), 1149(6), 11946), 127739,
1295 (4), 1298 (5)
M‘Kenny v Chambers 578 (5), 1217 (1)
M‘Keon v Walsh 374 ae 842 & 1047 (14)
M‘Kibbin, Re eee 495 (8)
M‘Kiernan v Kernan . 2), 114 (8),
162 (2), 338 (5), 709 (3, 712 (109,
815 (10), 873 (13), 986 (8), 1022 (12),
1081 (8), 1126 @, 1213 (4)
M‘Kinnon v Palmer 794 (16)
M‘Laughlin v M'‘L. .. 364 (4), 725 (6)

M‘Kean v Gray
, Re ...

 

M‘Kenna v Connell ..

 

 

 

 

 

M‘Loughlin v Feeny 1039 (1
» ML. ‘805 (2), $13 (14
v ML. 1120 G

v Longan “170 (3), 186 (6),

1068 (1)

v Reilly 818 (5), 1098 (12)

 

M'Mahon » O'Kelly... 327 (15), 688 (12),
709 (1), 719 (2), 1028 a

M‘Manus, In re 659 (8), 661 (4

 

[NAMES OF CASES.]

M‘Minn v M‘Connell 447 (6), 1152 (2)
MMullen v O'Reilly... 827 (1), 644 (3),
762 (4), 1281 (1), 1880 (1)

487 (1), 1024 (10)
506 (1), 542 (4)

271 (4), 1857 (3)
710 (4), 720 (3)

2 (7), 8 (3), 87 8),
404 (4)

M‘Namara v Blake ... 112 (10), 685 (1),
688 (10), 702 (6), 706 (3), 716 (1),
788 (125, 800 (8), 803 (4), 889 (6),
901 (18), 988 (2)

 

Ex parte
M‘Murray v Burrowes
M‘Neale’s Estate, In re
M'‘Nally v Knox _...
M‘Nally v Gradwell ...

 

 

v Lysaght 374 (9), 615 (4),
819 (7), 1047 (6)
v O’Kelly 327 (12), 1028 (15)

M‘Neale v Reed

ass 631 (2), 1137 (6)
MNeale’s Estate, In re

275 (3), 277 (2),
278 (2), 1362 (1)
M'‘Neice v Agnew ... 394 Cy 948 (3), Me (6)
M-Nevin, Re i 8938
aie v Hamill ... 38 (6)
M‘Owen v Hunter 440 (1), ‘661 (6), 1239 eas
M‘Swiney v wanes 983
M‘Tear v M‘Dowell.. “432 (1), 1859 (1)
. 3 (4), 684 (8),

M‘Tiernan v Bell as
777 (9), 921 (12)

157 (7), 219 (2),
267 (8), 459 o

Macan v Richardson...

 

 

 

Macartney v Dickey... 872 (4), 1209 (12
v Graydon ... 862 (10), 1262 (2

Mackay, In the Goods of 236 (6), 1040 (10
v Martins 954 (5), 1005 (13)
v Martins a 1409 (3)
v Orr 334 (38), 1102 (2)

 

Macken v Hogan 160 (2), 1276 (5),
1280 (7)
445 (5), 838 (1),
862 (5), 876 (15)
252 (3), 882 (4),
1346 (7)
, Ex p., in re M‘Intyre... 82 (2)
Mackinnon v Palmer 323 (4), 794 (14),
971 (7), 1027 (11), 1030 (8)
Maclean v The Marquis of Donegal 1119(8)
Macnamara v Carey... 1298 (4)

v Vincent ... 62 (6), "152 (6), 165 (3),
885 (5), 435 (4), 1236 (7)

Macrory v The Belfast Commission-

ers of Customs.. 888 (11), 1244 (4)
Madden v Davis 911 (4), 1054 (4),
1222 (8), 1241 (9)

v Newcomen...

 

Mackey v Maturin ...

 

 

 

 

v Kirwan 270 (5), 813 (11),

1370 (4), 1408 (3)
» Wilson 1080 (12), 1257 (2)
v Woods 481 (14), 880 (5),

 

“998 (6), 950 (7), 1126 (6)
on 1049 if

Madox v Nowlan

Magan v Coffey

v Fallon 465 (8), 1074 (8

Magawley v Brady ... 284 (4), 434 (4),
717 (6), $87 (12), 1012 (5, 7), 1104 (3),
1318 (1), 1817 (1), 1319 (8)

Magee v The Bishop of Cashel 4(8), ao 5.

 

Magennis, Ex parte... B31 a eas
Maghee v M‘Alister... 614 M3
Magill v Gibson and Ewing .. 663 (3)
Maginnis v Gore... 154 (4

Magrath v Heron

‘684 (11), 703 (4
Maguire v Dundass ...

860 (8), 891 (4)
(NAMES OF CASES.]

Maguire v Dodd
v

 

48 (2), 1270 ae

v Nicholson ... "184 (4), oe (5)
v O'Reilly ...173 (5), 257 (4), 268 (6),
456 (6), 474 (9), 1695 (6), 1232 C6)
0)

1242 (1
v Richards 501 (5), 1083 (11)
v Scully 150 (2), 297 (4
Mahaffy v Rooney ... 1394 (1
Maher v Gorman - 20 CBA, 899 (4), 963 (4),
978 (3), 1837 (1)
a 550 (4)
ee 888 (11)
905 (7), 908 (4),
1006 (5), 1010 (8)
v Fitzgibbon & Brady 1 (2), 4542),
1064 (9), 1248 (5)
7 1112 (10)

 

 

 

 

 

v Lanigan
v Loughnane...
Mahon v Dawson

 

 

v Hammond...

 

 

 

 

 

 

 

 

 

, In re "B85 (8), 995 ie
v Irwin 854
oM.... 794 (3), 795 (5), 1036 Si

1074 (3), 1088 (7)
v Morgan 258 (4), 254 (2)
Mahony v Donovan ... 568 (3), 1877 (8)

, In re 2 1023 (9), 1190 (4)

vo M. - 21 (6), 114°(3), 677 (1),
690 (16), 893 (1, 970 (1), 1218 (7)

v O'Connell ... 364 (10)
v Tynte 504 (1), 1227 (2),
1247 (4)

Mahony, in the Goods of 718 (14), 1039 (3),
1044 (6

Malcolmson v Eagar... 503 (2), 1085 (11)

v M. ee 271 (5), 1358" a

v Medlycott .. 968
Malcolmson v Gregory “143 (1), 793 ee
oes 866 (4

240 (8), 1227 (8)

Mallett v Osborne
Malley v Hornsby
, In re 1159 (5), 1243 (13)
Malone v Geraghty... 1(4), 114 (1), 467 (2),
498 (1), 623 (9), 685 (6), 707 (10, 11),
715 (9), 717 (2), 718 (9), 874 (10%,
876(8), 908(11), 957(4, 10), 1091 oy
1296 (8), 1406 (8)

 

 

 

 

v Harris 41 (1), 267 (10)
Malone v I’Estrange 615 (2), 941 (2)
Malone v M. 465 (3), 898 (6), 903 (11),

905 (5), 989 (7), 990 (7)
Malone v O’Connor ... 400 (10), 591 (1),
941 (2), 949 (1), 1014 (7), 1091 (99,

1168 (6)

 

v Tuite 805 (3
Maloney v Casey 1043 (10
Malony v Lowry... 803 (11
Manders v M. -.177(5), 217(1), 690 (10),

"893 (3), 952 (7), 1006 (7)
301 (6), 734 (2),
741 (7), 756 (3)
os 1261 (7)
. 49 (1), 57 (4), 268 (3),
469 (BY, 1804
934 (14), 943
1070 5

Mandeville v Roe

Mangan v Massy
Manly v Hawkins

Mann, In re
Manning v M‘Garry...
Mannix v Coates ...458 (6), 566 (3), 991 (6
v Drinan ..136 (2), 175 (5), 387 (2),
565 (1), 785 (9), 788 (10), 854 (15),
908 (10), 910 (8), 1006 (2
Mansergh v Fitzgerald 3897 (7), ue ) 2)
41 (5
Mansfield v Crawford 518 (8), 620 (1), 981 (0
Maqueen v Barron ... 20 (2), 1038 (8)

 

 

XXXV

Mara v Manning
v Ryan
v» Tibeaudo

 

 

347 (6), 883 (3), 1802 (2
Rg st 3

363 (8), 807 (2)
Marjoribanks v Hovenden 340 (3), 646 (5),

748 (1), 917 (9), 941 (7
He & 1015 bY 1132 on 1195 £

1323 (6)
Mark v Willington 363 (11), 814 (4),
815 (3), 1019 (1)

620 (5), 1368 (5)
380 (1), 388 xe 2 2

1308 (B

Marken v Magrath
Marshall v Gibbings

 

v Letterkenny Ry. Co.

 

 

 

v M‘Aravey 181 (8), pe (5)
v M‘Areavey 66 (2
Martin v Bunbury 815 ©), Bis (5)
v Cooper 33 (11)
v Cotter 130 (2), 206 (8),

 

885 (6), 1016 (2, 3), 1104 (6, 7),
1105 (2), 1310 (7), 1312 (8),
1314 (6), 1317 (2)

448 8G), 790 (10), 960(8)

       

 

 

 

, In re 847 (9), 1094 (2)
v O'Flaherty ... 783 oO 931 (14)
v Walker — 621 (1), 714 (7), 1073 (9)
v Waldron _... w. 1077 (14)

 

Martin’s Trusts, In re.. 732 (4), 759 (3)
Martley v oe 362 52 8), 804 (7), 688 (18)
vo M.

Martyn v Blake diag 53 (5), 266 (6),
413 (8), 470 (5), 477 (1)
v Macnamara ... 118 (2), 148 G),
157 (2), 161 ns 177 (4), i aa

 

 

Mason, In re

 

 

oM. ... nl 981 (3), 1088 (9)
Massey v Barton 552 (5), 1879 (1)
v Batwell en 194 (2), 224 (2),

291 (1), 449 (12), 715 (8, 11),

718 (6), 903 (10), 906 (12), 1098 (16),
1100(i), 1103 (3), 1191 (3), 1811 (9),

 

 

1312 (3)
» Millar 844 (7), 1008 (11)
v O'Dell 203 (1), 1031 (9),

1087 (3)

609 (6), 918 (6),
1087 (115, 1042 (5)
801 (10), 809 (7)

 

v Pennefather ...

Massy v Burgess

 

— v Graham 363 (4), 953 (6)
v Hayes a6 1287 (7)
v O'Dell 156 (6), 163 (7),

 

300 (3), 392 (1), 691 (2), 887 (129,

1014 65, 6.4 1164 (

— eo (5), 1050 (7)
298 (1), 826 (7),

328 (2), 485 (9)

 

v
Massy’s Estate, In re.

 

 

Mathews v Archer 1334 (1)
Minors, In re ... 2 1172 %
Mathew’s Estate, In re 1380 ones fie (7
Matthews v Wynne ... a
Maturin v Wilson “on 8) -
Mauleverer v Warren.. 368 (9)

Maultby v M. 308 (1), 743 (5)

 

Maunsell v Egan *, 881 (4, 6), 1077 (4, 6),
1082 (3), 1136 (5)

v O’Brien ss 1132 (3)

v White 1. 25 , 29 (2), 38 (11),

 

45 (7), 1193 ¢
Maxwell v Boate 1055 (2), 1079 (9
v Mitchell... oe _ 980 (9
v O'Dell 570 (7), 844 (6),
1061 (2), 1063 (5)

 

 
 

 

XXXvi
Maxwell v Read as 366 (9), 777 (2),
807 (7), 821 (11)
» Scanlan Bs 855 (12)
v Smyth 855 (8), 860 (6
Mayne v Macartney ... we L116
Meagher v M. 796 (8), 1088 ae
&
v O’Mara

 

684 (10), 818(10), 1227 >)

Meara v Egan 365 (11), 1056 (3)

 

 

[NAMES OF CASES.]

 

 

Molloys Minors, In re 508 (4)
Molloy’s Trusts, In re 909 ()
Moloney v Bernard . os 1111 (10)
v Casey 919 (1), 1021 (5), 1046 (9)
Molony, In re 383 (2), 1288 (5)
v Kernan 348 (5), 356 (6),

511 (4), - (3), 646 (3y, 820 (10);
898 (4), 1134 (1), 1321 (4)
v L’Estrange... 132 (2), 920 (1

 

 

 

 

 

uM, ae 40 (3), 150 (6), v Nugent 1060 (3

161 , 494 ), 522 (2), 1809 (1) v O’Brien os 947 (12)

v Rogers ... 1209 (2), 1811 (4), v Scollard ‘412 (38), 582 (7),

1333 (3) 917 (18), 1097 (4)

Meares v Bannon ... 1075 (8) | Molyneux v Scott 324 , 902 (8), 973 (2)
Mecredy, In re the Goods of 1041 (4) | - , In re 1032 (6)
Meehan v Cusack... 1123 (1) | Molyneuxs, In re 236 (8), 389 (2)
Meek v M. 1019 , 1043 ay, ee (3) | Monaghan v Kirwan... 1006 (1)

Mellifont v Whitney ..

16 (10)
Mercer v M‘Kee

456 (10), i086 dl),
1070 (5), 1135 (7)
568 (1), 1877 (1)

 

vM..

 

Meredith » M. 253 (1)
v The Bishop of Limerick 244 (6)
Meredyth v Creed 871 (7)

 

v Molloy 7
Meskill v Dunworth ...
Metcalf v Ryves

981 (6), 975 (1)
894 (5), 895 (11)
18 (11), 495 (7), 1801 (12)

 

 

Monahan, In re

Moncks v M.

Money v Gibbs
Moneypenny v De Massey

609 (3), 610 (2)

“407 (4), 210 3

319 (1), 457 (7),
1235 (2), 1248 (6)
v Gibbings 390 0G, 5), 877 (6), 1124 (4)
Monk v Lawlor 1017 (18)
Monsel, In re "296 (6), 603 (6)
v Lindsay 574 (6), 1048 (10),
1049 (12), 1218 (8)

 

 

 

 

 

Millar v M. ... 360 (1), 669 (8), 785 (5) | Monteagle, Lord, v Langrishe 1358 (8
Millett v Mansergh 930 (2) | Montefiore v Browne 199 (4
vo M. = “B04 (1), 561 (8) | Montgomery v Caslett 1097 (10), 1308 (4)

1390 (4) uv Donohoe ... 185 (2), 414 (5),

Milliken v Kidd 53 (6), 175 (6), 409 (4) 459 (1), 626 (6), 1145 (5
vM. a. 25 (8), 39 (1), (7) v Eyre es 684 3), 823 (4
Millington v Thompson v Johnson .,.322 (8), 325 (2), 328 (7),
Mills v M. ... 363 (5), 486 (3), 619 (sy 814 (3), 1123 (9), 1296 (8
738 (4), 747 (4), 748 (7), 766 (5), v M‘Evoy _ ...459(10), 629(2), 1159 (4

813 (9), 1056 (1), 1141 (3), 1151 (6), v Mayne 815 (1), 821 (10

1185 (2), 1186 (4), 1198 (5) » M. 196 (4), 278 (8),

 

v O’Loghlen ... 697 (2), eS aoe!
—— v Spear aes 8 6
Milner v Joseph "879 (8), O47 a
oM, 920 (7), 1140 (5),

1193 (2), 1197 (2D)

867 (5), 872 (6)

 

Miltown v Trimleston
Milward v Fagan ... 814 (5), 858 (4), 880 (5)
Minchin v Dillon ... 848 (2), 1058 (9)
vM. Zs 758 (5), 1226 (2)
v Walpole .. 829 (7)
Mining Co., The Irish Consols, "Ex parte ;
re Banks 140 (1), 1405 (4)
Minx v M. ies 695 (15
Mitchell v Huffington 727 (10), 1047 (5),
1251 (6), 1339 (6)

 

 

 

 

v Nixon 1238 (6), 1284 (4)

v Roe 951 (9)

Mizen Head Min. ‘Co., The, In re 141 (1),
438 (4)

Mocher v Frazer and Reed ... 322 (9),
330 , i a

Moclare v M. 0 (1)
Moffatts Minors, In re ee @)
Moffett v Rutledge 1088 (1)

690 (12), 1304 (2)
872 (4), B74 (1),
852 oy 1218 (3)

Moher v Bermingham
Molesworth v Robbins

 

 

 

Molloy v ee 429 (6
v Burke xt 909 (1)
v Egan «. 44 (2), 47 (2)
v French 62 (1), 69 (10), 70 (7),

127 (7), 330 (2), 563 (5), 1330 (3
Molloy v Sterne site 24 (1), 517 ‘

 

1354 (8), 1359 (5), 1404 (15, 1406 (1)
v Southwell ...360 (8), 421 (3), 455 (1),
583 (4), 584 (2), 819 (11), 906 (1),
912 (4), 957 (5)

a i

v Swan 4 (6), 5 (8), 265 (4),
289 (5), 478 (1)
v Waring 1186 (7), 1279 (8),

1299 (5)

Mooney v M‘Donnell 556 (4), 1373 (5)

Moore v Creed 117 (8), 1093 (10)

v Crofton... 1 (7), 82 (4), 86 (1,

134 (2, 11), 217 (4), 519 (6)

v The Marquis of Donegal 169 (2),

284 (6), 434 (7), 988 (1), 1052 (6),
1056 (13), 1141 (5)

 

 

 

 

 

 

——vGrogan... 395 (10), 402 (8),
1034 (12), 1224 (9), 1238 (1)
—,A,Inre... 517 (1)
———v Keogh 366 (14), 697 (13)
—— » Lalor 803 (9), 814 (13, 858 (1)
v Mahon. 643 (3), 1156 (2)
v Marsh 984 Cs
oM. "947 (7), 952°(5
v Sayers 535 (7), 874 (8)

Moorehead v M.

1111 (8)
Moorhead’s Estate, In re

‘469 (1), 1108 3)
1317

798 (8), 1202 3
“260 (9), 526 (7), 540 AO

,Inre ..897 (6), 452 (1), eH db
741 @), 742 (1), 1147 (3), 1391 (2),
1402

Morgan v pe
v Gurley

 

 
[NAMES OF CASES.]

Morgan v M.

250 (1), 254 (8, 4), 1286 (6
v Rainsford a ®

26 (1), 28 Bh 39 och

 

 

 

 

, Re... 108 (0
—— v Roe 883 38 (10), 1210 i)
v Scott 07 (6)
Moriarty v Kirwan ... “3 (2)
v Martin 251 (6), Ae Bids

4

Morres v M. » 171 (7), 233 (6, 334 (4)

Morris v Herbert 590 (7), 1147 (6),

1306 (1)

...251 (1), 367 (1), 393 (3),
400 (2), 401 (5), 984 (7
Morrissey v ee a 1124 (1
Morrisson, Re . 89 (5), 100 (5)
Morrogh v Hoare ‘180 (8), ‘186 (9), 1068 (9
Morrough v Lord Dufferin’ 1357 (5), 1883

Morrow v Sausse 503 (1), 1085

Morrow’s (f1.) Estate, In re ... 1000 (2

Estate . 229 (1) 462 (2, 4), 623 (2)
Mortal v Lyons 34 (5), 521 (2), 934 (2),

940 (5), 1134 (5), 1318 (2)

Mortimer v Shortall... 195 (4), 513 (6),

Morrison v Bell

 

XXXvVii

pela v O'Connor... 574 (5), 950 (1)

 

 

 

 

 

 

 

 

O’Shea . 856 (8), 709 (4), 865 (6),
1132 32 (8), 1 1134 (8), 1319 Be
, Re...

——,_ R., re 85 (5)
v Sealy "390 (©, a (7)

v Segrave 80 (8)
Sterne 581 (1), 631 (5), 1240 +68

——-v Stratton ... 268 (1), 969 (3), 973 (6
v Taylor 195 , "410 ©), na

1(9

Murphy’s Estate, In re : 1088 (3)
Murray v Byrne 908 (15), 910 nes
Murray, in the Goods of ae ie (4)
, In re 96 (6), 894 (4), 395 (6),

“400 (1), 482 (7), 1229 (6)
v Johnson 1842 (4), 1358 (2)
— v Madden 697 (1), 825 3
—— v Moyers 466 (5), 1177 (1)
— v Mulligan ... 843 (2), 1041 (8)

v M. ne 288 (9), 426 (5)
Re... . 91 (8), 98 (1), 465 (6),

574 48), 1196 (4)

 

 

 

 

516 (D, 898 (5), 987 (12), 942 (10), v Richardson 1342 (7)
1006 ( a v Sayers ane re 871 (8)
Morton v Archbold .. 532 (3), 587 (1) v Shadwell ... 118 (12), 838 (4)
Mostyn v Brunton ... 1396 (6) | Murtagh v Tisdall ... 13 (5), 231 (8), 786 (3),
Mountcashell, Lord, » O'Neill. 966 2) 787 (1), 890 (7), 903 (7), 906 (7),
67 (6 954
Mountuorris v Fetherston 700 (7) | Musgrave v MC ollagh aia 1410 ()
Mountsandford, Lord, In re ... 859 (13), | Muskerry, In re a ..135 (8), 604 (1)
880 (6) Lordy Putland 422 (3), 588 (4),
Mowles v Murray 882 (5) 838
Muley v Smith 323 (3), 1287 ey Mussenden, In re the Trusts of 1292 (6)
1296 (2) | Myers v The Duke of Leinster 9 (6 , 17 (6),
Mulhall v O’Brien ... 1078 (10) 177 (6), 198 (1), 220 (2), 351 (3)
Mulhallen v Marum... 9 (5), 15 (5), 356 (7), 669 (9)
358 (1), 369 (9), 485 (5), 513 (4), s
1332 (2) N
Mulholland v The Corpn. of Belfast 44 (7),
1230 (7), 1279 (9) | N. v N. 1410 (4)

Mullarkey v Mathews 922 (8), 1046 (2),
134

 

344 (2

Mullen v Horner 974 1

, In re é “101 3), 104
Mulloy v Goff 393 (11), 499 (4), , 589 (4)

Munns v Feris 1028 (13), 1096 (14)
Munroe v The Newry and Warren-

 

 

 

 

 

 

point Ry. Co. 44 (6), 1166 i
Murdock v M. cc 1128 (8
Murphy v ‘Abraham... 97 (4), 178 (5)

v Archdall ...839 (9), 898 m, We MOG
v Balfe a 1048 ran
v Conway ...790 (2), 960 (1
v Donegan 640 (2), 13882 (1
v Harman 695 (17), 1057 (13)
, In re 398 (3), 1002 (10
'y Jackson... 345 (2), 500 (3), 542 (1

 

679 (2), 720 (5), 921 (25, 934 @)

 

 

 

 

 

 

 

 

 

# 100 (1), 208 (35
15 (4), 206 (2), 221 (6),
241 (3), 1327 (2)

Naghten, In ‘re
Nagle v Baylor

 

v Creagh 986 (11), 1069 (8)
Nangle v N. 944 (3)
v Smith

 

"282 (3), 529 (4), 936 (2),
Napier v Molyneux ... 617 (2), ere
uN... +. 888 (3), 404 (5, 10)
v Staples 262 (3), 332°(9), 559-(5),

591 (3), 1276 (2), 1374 (6)
Nash v Flynn 224 (11), 269 (1), 689 2)

 

 

90 (15)

—— v Hughes 10 63 (2)
——, In re 207 (5), 305 (1), 740 ie
1145 (2)

Nason v Peard 687 (5), 688 (12), 697 (14),
779 (8), 818 (1), 819 (3), 926 (11),
1092 (8)

 

v Johnston. ...279 (4), 812 (4), 1858 (7) | Naughten v N. 718 (1), sr 4)
v Keller 65 (1, 6), 695 (2), 824 (6) | Naughton, In re 3 08 (1)
v Longfield ... 933 (5), 946 (9) | Neal v Morris 209 (2), 680 Q)
v Lynde sheer (4) | Neary v Callan 690 (7), oe glans
v Meade 928 (3), eyes Q),
(2) | Needham, Ex parte ... 1034 “a3
v Moore a iis 9 (2s , Inre 1288 (1), 1289 (5), 1291 (5)
» Moorehead — 2 (6), 5 (5), 720 (4) Neilson v Underwood 1286 (7)
vM. sis 758 (4), 1044 (3), | Nelligan» Jones... 244 (5), 1408 (1)
1402 (3) | Nelson v Averall 822 (2), 977 (6), 990 (5)
XXXVili

887 (2), 862 (2)
981 (3), 578 (1
884 (2), 1211 (2

1241 (4), 1257 (3)

Nelson v Brady ose
Nesbitt’s Estate, In re
Nesbitt, In re a
Netterville v Power ..
Neville v Fitzgerald ... 927 (11), 1008 (8)
Newby v Drew 136 (8), 187 (5), 170 (7),
187 (2), 808 (1), 329 (7), 421 (5),
434 (1), 486 (6), 488 (2), 565 (5),
835 (4), 848 (5), 849 (6), 1054 (12),
1055 (3)
Newcombe v The Dublin & Wicklow
Ry. Co. 978 (9), 1167 (1)
oN... ye i6LL (1,8)
Newcomen v Hassard | 340 (4), 381 (1),
385 (1), 709 (3), 719 ©)

 

Newcomens Minors, In re ... 617 (1),
1351 (33

Newenbam v Mahon... 497 Os 2 5 Ae}
1€

v O'Sullivan ... 503 (0)

 

1034 (4), 1103 (6),
1113 (4), 1312 (7)
149 (3), 595 (3),
1297 (4)
Newton v N. 872 (10), 475 (6), 481 (7),
868 (3), 992 (9), 1088 (1), 1838 (1),
1340 (7), 1343 (3)
“ 1003 (10)

v O’Bre
Nicholls v Crooke 947 (13)
‘867 (4), 953 (4)

Nixon v Dane wer
» Hamilton _...49 (3), 133 (3), 1971),
216 (6), 231 (6), 350 (3), 375 (3),
644 (5), 645 (3), 942 (8), 1185 (3),
1154 (1), 1326 (2, 9)
oN. 311 (6), 384 (6), 1200 (6)
» Robinson __... 4 (4), 268 (5), 490 (6),
516 (6), 646 (7), 680 (6), 958 (3)
Noblett v The Earl of Litchfield 787 (2),
759 (7), 1408 (1)
812 (10), 1018 (2)

Newman v Fitzgerald

Newport v Bryan

 

 

 

 

Nolan v Adamson

 

 

 

 

v Ball 362 aoa 804 a a a
v Drinan 86 (6
—— v French eit (12)
uN. "369 (2), 394 ), Us (LD
v Power
——,, Re 1.78 (4), 91 oy ‘0 x

Norbury v Alleyne 502 (6), TG
5

447 (9), 1144 (25

298 (2), 733 (4),

736

5B (3), 728 (6), 785 (3)
842 (12), 866 (5),

1087 (9), 1800 (10)

100 oD, 573 (8), 856 (13)

‘ 1044 (8)
688 (2), 895 (1)

841 (4), 1018 (17)

Norcott v Massy
Norcott’s Estate, In re

Norman v N.
Norris v Duckworth

North, Re
Norton v Casey
Nowlan v Evans
Nugent v Hill

 

 

 

 

 

v Leyden zs ea 465 (13)

vN. 569 (2), 795 (18), 830 (10),

837 (10), 888 (13), 1043 (2),
1044 (15)

v Palmer 812 (18)

v Piers 386 (4), 467 (10), 1113 (3),

1222 (13)

v Waters 479 (4), 988 (3),

1057 (5)

Nunn v Donovan 258 (5), 317 (3),

1149 (5)

—— v Mahon 889 (8), 1098 (1)

 

 

 

 

 

[NAMES OF CASES.]

Oo

Oag, In the Goods of es 1046 (3)
O’Beirne v Cornwall 36 (13), 260 (11),
843 (1), 1267 (1)
,Inre —_ 1265 (6), 1268 (1), 1351 (4),
1358 (3), 1384 (1), 1397 (1)
v MacMahon .. 1109 (7)
vO'B. 6902), 801 (t 0 804 (9),
932 967 (8)
v Reade 683 (4), 895 oy 1053

O’Boy v Warner 25 893

O’Brien v Bernard

 

 

 

 

 

 

 

 

 

 

374 (8), 718 oy
788 (9), 1124 (3)

v Cantwell 118 (6), si (8),
851 (2)
v Clancy 803 (5)

v Considine ... ‘680 (4), 694 (5)
v Creagh 360 (16), 364 (17), 705 (9),

890 (10), 1013 (9)
v Fitzgerald 11 (1), 60 (9), 285 (2),
412 (5), 834 (9), 861 (11), 895 (13)

— v Foley 1018 (10), 1022 (9),
1117 (4)

—— , Inre 67 (2), 401 (1), 827 (3, 4),
932 (6), 1406 (10)

v Kenny 1067 (4)

v Mahon 9 (2), 181 (6), 255 (8),

717 G3), 779 (1), 901 (7)

v Manders 796 (10), 909 (11),

910 (1), 1025 (3)

v OB. 844 (4), 861 (9), 875 (7),

891 (8

v Peebles 933 (1), 989 (4)

v The Poor-law Commissioners

872 (1)

——,Re ... ... 78 (6), 99 (4), 888 (4)
v Scott 183 (3), £46 (8), 1158 (4),

 

 

——- v Villiers

 

18) | O’Callaghan v Blake ...

 

 

1225 (5), 1243 (1)

651 (9), god (L (4),
102

346 (3), 724 (2), 877 (43

; 24 (3), 695 (5),

897 (3

800 (5), 804 (8),
806 (6

v Tredennick ...

v Westropp

v OC. 436 (1), 1089 (12)

, In re 1138 (1), 1222 (1),

1251 (3)

O’Callaghan’s Estate, In re 1209 (9)
O’Carney v O’C. 829 (6)

5) | O'Connell v Cummins

 

 

 

 

 

O’Connor v Bernard ...

 

 

 

 

, In re

632 (8), 637 (9),
675 (5), 916 (43
v Denny 985 (5)
, Ex parte, in re Spread. 484 (2)
y MacNamara 422 (5), 912 (4),
957 (6

v O'Callaghan 128 (2), 172 (4),
233 (6), 255 (9), 502 (7), 916 (17),
920 (3), 984 (2,4), 1084 (4), 1222 (5),
1246 (2), 1299 (1)

vO. 1037 (6)

763 (4), 840 (10),

929 (5), 1097 7M, 1102 (1), 1112 (8

v Haslam ‘i 588 (3

1045 (11), 1047 (2

84 (7, 10), 115 (4), 226 (3),
855 (14), 876 (1), 937 (3), 1020 (18),
1021 (8), 1073 (19), 1077 (12)

v Malone in 477 (7), 691 (2),
806 (13), 892 (11), 914 (45; 915 (2)

v Herbert
[NAMES OF CASES.]

O’Connor v Richards ... 1020 (4), 1098 (7),

1111 (J)

O'Dell v Curreen 828 (1), 880 (7
—v ewe aa 137 B
—,In 1301 (8)
—, In ne the Estate of ss 302 (6)
—— v Massey 369 (4), oe to
3

 

 

O’Donel’s Estate, In re 1802 6)
O'Donnell, In re 3 1019 (8), 1046 (6
v M‘Mahon és 1410 (2
v Nolan ‘4 (38), 1007 ied

1263
O’Donohoe v King 1354 (4), 1361 dy
1406 (13

O’Donovan v Rogers.. 134 (7), 218 (8).
219 (3), 451 (7), 1146 (4), 1287 (1)
O’Dowda v OD. 8 52 (10), 1028 (3)
O'Farrell v M‘Can .. 1037 (10), 1120 (4)
O’Fay vBurke 18 (7), 29 (6), 34 (6), 40 (4),
513 (1), 52% (3), 527 (4), 644 (1),

755 (1), 1237 (2), 1825 (2
O’Ferrall v M‘Can_... 838 (14), 844 (9),
854 (7)

 

v Madden... 1018 (9), 1022 (7)
O'Flaherty v Dowell 8 (2), 72 (5), 438 (8),
718 3 @); 1224 (3), 1227 (7)

v OF. 96 (13)

 

O'Flynn v Wall a
Ogle "
Oeleby v Campbell :
O’Gorman v M‘Namara
v Pratt
O’Grady v Barry

‘Tie (oy. 784 (4
945 (9), 951 (11
a 1072 (4)
945 (1), 1162 (1)
836 (2), 879 (1)
798 (6), 803 (2),
805 (11)
v Brady ... 13 (2), 14 (6), 198 (6),
365 (9), 709 (1), 719 (2), 1105 (8),
1212 (5), 1807 7)

 

 

 

 

 

v Buist 333 (4)
v Glover visa 1142 (2)
v Waldron 18 (8), 198 (3)
O’Hara v Chaine ro 249 (2), 1112 (1)
v Creagh 578 (3), 581 (10, 11),

 

671 (5), 672 (8), 676 (2), 922 (11),
927 (9), 950 (2, 12, 14), 986 (7)

 

 

 

v Strange : 117 (1), 257 (6),
655 ee 694 et) ee (6)
O’Hea, In te ... ns 7 (2)
O’Kearney v Phelan sis 393 (6)
O’Keefe v Lanigan 635 (1), 800 “5 Ch
1049 (7
v Allen 783 @, i (8)
O’Keeffe v Armstrong... eis 78 (2)
——v Dennehy 489 (6), a 7 OX sor (10)
v Holmes 837 Oy
881 (11), 888 (4), Fev oy 900 (3

 

958 (14), 963 (10), 1122 (10)

v Hughes — .... 843 (1), 1042 (8, 12)
O’Kelly » Bodkin 10 (12), 11 (7),
169 (9), 172 (7), 420 (5, 6), 449 (1),

454 (4, 6), 579 (T, 8), 581 (9), 582(1),

596 (7), 597 (1), 675 (7), 680 (29,

825 (5), 889 (16, 11), 890 (8), 894 (7),

953 (13), 1112 (14), 1240 (11)

——— v Chamberlaine ‘ 551 (4)
v Glenny 354 (7), 358 (2),
569 (20), "B85 O, 702 (5), 708 (1)
v Gregg 80 (4), 1073 (17)
Oldens, Re ... 160 @. 650 (5), 1161 (1)
Oldham v James 42 (3), 204 (4), mee

 

 

) | O'Mahony v Burdett..

 

XXxix

Oldham v Willens 684 (7)
v Wilkins... 320 (1), 714 (1),
ee Ce 832 (3), 905 (4), 1015,(1),
O’Leary v Cavanagh... 1027 (8), 1252 (4)
v Purcell i. 116 (5), 465 (2),

620 (8), 895 (7), 1169 (1)

323 (8), 429 (5),

556 (3), 568 (2)

682 (2), 823 (3), 986 (4)
367 (4), 399 (6), 1237 (5)
’ 467 (45, 1232 (3)

 

 

O’Malley v Denny ...
O’Malleys, In re
O’Neill v Bass

 

 

 

 

 

 

v Billing 62 (5), 1176 (6)
v Browne... 969 (7), 972 (8),
974 (8), 1056 (2), 1210 (11)

v Hamill .. 17 (8), 250 (3),

323 (2), B51 (1)

v Innes 631 (3), 872 (3),
909 (7), 1092 (12)

v Jones 364 (12)
, In re “78 (8), 1035 (12)
v M‘Erlaine.. 342 (2), 694 (6),

 

802 (10), 919 (4), 979 (2), 991 (9)
— v Montgomery 1269 (3), 1864 (8)
O’Neills, In re, Minors 501 (8), 808 (8),

 

 

1136 (4)

O’Neill, Re es 1207 (1)
O'Reilly v Fannin ... “406 (1), 1029 (1)
, Inre 678 (6), 698 (4, 6),

ie (18 743 (4), 828 (5, 6), 1004 (9),
v OR.
v Patterson...
—— v Smyth

 

1338 (9)
1093 (7)
: ‘1876 (1), 1389 (39
vWard 855 (10), 857 (3)
Orme’s Trust, In re --424 (3), 730 (1)
Ormonde, The Marquis of v Wandesforde

700 (6), 1400 (1)

 

 

 

 

 

 

Ormsby v Anderson 278 (3), 1363 (1)
v Edgar “9 946 (4)

» The Earl of Limerick 165 (2)

Orpen v Allen 1063 (17), 1260 (5)
, In re 1096 (8)

yy Moore : 1064 (1), 1260 (6)
O’Rourke, In the Goods of . 1038 (10)

Orr v Littlewood ... 345 (3), 500 (4), 507 (8),
534 (2), 542 (3)

v Milliken 325 (10), 853 (2)
——, Ex parte, In re Petticrew 107 (5),
572 (7), 856 (7), 862 (14), 1181 qd)

Osborne v Casey | 777 (14), 788 (14), 904 (2)

 

 

 

 

 

 

, In re 294 (1), 554 (4
00. 1387 (3); 1398 3

v Smith 1194 (4), 1828 (2),
1396 (8)
O’Shea v 676 (7), 958 (16), 1207 (10)
: v Howley ... 1271 (1), 1273 (7)

1277 (4), 1342 (5), 1386 (3)
O’Sullivan v Edgeworth 186 ay « 08)

 

v M‘Sweeny 290 (1), 655 (3 980 12
Ottiwell v Farran ... : me 2 58 vs
Otway v Sadleir 1841 (5)

Otway’s Estate, In re 1108 (7), 1317 (8
Ould v Griffin’... 911 (6), 1094 &
1122 (6), 1129 (11), 1259 (3)

 

Overend v O. 9 (11), 1079 (7)
Owen, Ex parte : 130 ®, 492 (3), 546 (4)
, Inre 1086

Owens v Oliver

————

B (2), 696 aes
801 (2)
 

 

 

 

 

 

 

xl
P

Page, In re 417 (1), 884 (11), 1316 (1)
Pakenham v Casey ... 777 (8, 15), 779 (2)
vDarey 1084 (2), 1051 (13), 1055 (4)
Palles v O’Ferrall a3 1053 (5)
Palmer v Browne . 8 (11), 1134 (6)
v Goodwin 9 (18), 12 (5), 934 (13)
v Mahony 662 (2), 941 (5), 1049(3)
v Newport 501 (6), 1083 (12)
v Slaney... «. 507 (4), 548 (8)
v Spring 27 (6), 69 (5), 817 (6),
517 (5), 523 (5)
Parke v Flinn ... 1044 (2)
v Sinnott ... 5 1043 (11)
Parkinson’s Estate, In re 636 ms

Parnell v P. 471 (4, 5), 897 (8), 965 (1
Parr v Bell 972 (6), 979 (5), 1085 (8)
v Howlin ... 812 (9), 816 (3)

 

84 (5), 107 (4), 1228 (21)
716 (4), 205 3(18}

Parrott, In re
Parsons, Re...
Pasley v Lord Clanmorris.

 

[NAMES OF CASES.]

Peyton v Browne ... .. 859 (3), 939 (8)

 

 

 

 

 

v Lambert ... 401 (15), 785 (11),
787 (7), 1050 (2)
v M‘Dermott . 2248), 395 (3),
402 4), 420 (3), 482 (8), 502 (2),
571 69, 580 (8), 869 (3), 1197 (6),
1287 (7), 1238 (12), 1240 (6),
1285 wae 1290 (6)
Phelan v Byrne ei 1036 (12)
v Hamilton ... 927 (18), 9385 a
1049
—— v Russell 120 (8), 124 G, Sy
162 (5
——, Inre 69 (3), 78 (7), 96 (7)
, Re... 78 (7), 96 (7)
OP vices 931 (10), 934 Oy

1034 (7), 1064 (5)

Phibbs v Cooper _ ...498 (4), 710 (1), 719 (7),
991 (7), 1263 (4), 1846 (6), 1378 (2)

vFarrell ... 1075 (12)
v O’Donel ... 604 (4), 812 (5), 900 (7),
916 (19), 1216 (5)

 

 

 

 

 

1) | Philips v P. eur eer 711 (12

, Ex parte 143 @. 181 (1) | Phillips v Hassard ... 779 ron 1039 (ay
Patrick v P. ... i041 (11) , In re 648 (2), 1155 (4)
Patten v Wallace 25 (5), 31 (2), y Page ite 860 (4), 886 (11)
530 (1), 788 (4, 9), lig 13) oP... ..2T4 (6), 577 B), 7109),

Patterson v Kinahan ... 61 (4)
Paul, In re 108 (10), 1295 (4)
Payne v Lamb 881 (5), 1079 (13)
Paynes v Creagh 715 (5), 869 (7)
Peard v Foulke «» 1074 (9)
Peed v Cussen 372 (9), 689 (6), 704 (1),

718 (3), 906 (3), 908 (5), 1025 (11),

1210 (3)
Peirce v Locke 558 (2), 1852 (7)
Peile v Bermingham see 1096 (6)
Pell’s Estate, In re ... 1001 (7)

"8 (10), 9 (10),
679 (12), 1185 (1)

Pennefather v Bolton

 

 

v Bury 802 (4), 416 (1),

1875 (11), 1388 (8)
, Inre oe 1284 (6)
v Stephens 1174 (4)

 

ey (2), 492 (1),
1249 (4), 1256 (1)
89

Pentland v Somerville

Peoples v Stewart

Pepper & Locke, In re
v Bloomfield... “415 (9), 418 (9),
565 (3), 1349 (4)

 

 

 

v Foster % 335 (1), 867 (3),

867 (11), 971 (5), 1009 (13)
v Kelly wee --362 (1), 717 (4)
v Tuckey 1289 (12), 1294 (8)

 

Perrier, Ex parte ... « 141 (8), 440 (7)
Perrin, In re ..168 (1), 172 (5), 181 (3),

449 (2), 1221 (8), 1: 1228 (1), 1231 Hee
Perrott v O’Halloran 675 (8)
Perry v Magrath “334 (6), 863 (1)
Persse v Bayley 830 (4), 1047 (8)

 

 

 

v Daly si 911 (8), 1091 (10),
1341 (4), 1842 (6), 1843 (1)

, In re 972 (3), 1085 (2), 1222 (5)
vP, .. 21 (7), 314 (8), 370 (10),
487 (3), 671 (4), 709(1), 719 (2),

791 (3), 911 (12), 961 (1), 10387 (5)
——— v Queely 967 (4), 1017 (13)
Petticrew, In re . 107 (5), 572 (7), 856 (7),
862 (14), 1181 (1), 1220 (1)

Pews of ee Cathedral, The,
In re. 246 (5), 1130 (1)

 

711 (9), 820 (8), 1361 (3)
...473 (6), 892 (6), 908(8),
955 (3), 1018 (4), 1031 (2)
on 453 (1), 614 (2), 615 (3),
715 (3), 718 (5), 790 (8), 854 (14),
991 (1), 1005 (7), 1017 (4), 1027 (5),
1093 (9), 1098(2), 1105 (7), 1110 (15,
1318 (4), 1309(5), 1307 (1), 1131 (59,

1118 1)

v Tuite «23 (7), 739 (4), 898 (8),

916 (2), 925 (4), 990 (6)

Piers’s Estate, In re ...110 (7), 228 (| oe o0R
29 (3)

Pidgeon v D’Alton
Piers v P.

 

: "528 (2)
| 721 (3), 722 (5), 726 (2)

. 85 (8), 221 (5), 351 (2),
518 (1), 839 (10), 1122 (7)
os w. 18 (6), 25 (1),
155 (1), B85 (3)

Pigott vy Dunne
Pike v O’Connor
v Vigors

 

Pilkington, Ex p.

 

 

v Gore A 54 (6)
Pilson’s Estate, In re “ea 4b (10)
Pilsworth v Mosse ‘658 (5), ae BS

5)

v Nash 1019 (7), 1043 (13)
Plant, In re sais 1046 (5)
Plumptre v O'Dell ... 364 (15), 957 (9),

986 (1), 987 (7), 1009 (11), 1012 (1),

1024(5), 1048(5), 1049(1), 1098(15),
1110 (6), 1210 (5)
me 811 (6)

v Walsh
Plunket v Malley “698 (2), 943 (9),
1223 (6), 1259 (3)

 

 

 

v Reilly 287 (4), 1174 (7),
1227 (4), 1251 (5)
v Smith 401 (9), 1288 (6),

1289 (13)

39 (4), 519 (8)

12 (10), 1189 ae

924 (4), 1389 “(l0)
123 (5), 1234 (4),
1338 (8)

- 292 (5), 573 (8),
610 (10), 612 (11), 1034 (1)

Plunkett v Dease....
v Mansfield ...
v Williams ...

Plunket’s Estate, In re
Pollock v Day

 

 

Ponsonby, In re
[NAMES OF CASES.]

 

Ponsonby v P. 1016 (9)
Poole v Coates 525 (4), 1311 (7), 1844 f
vP. o. 282 (7), 1812 (6
PopevP. ... 932 (3), 943 (11), 1087 (10),
1382 (9)

Popera v Plunket...
Popham v Baldwin ...
v Exham

i 841 (19)
281 (7), 476 (4)
1097 (5), 1215 (6)
1320 (2)
Portarlington, The Earl, In re 474 (7),
998 (7), 1077 (3)

, The Trustees of v Serope 830 (14)
Porter v Archbold 690 (5), 802 (3), 807 (6),
858 58 (10), 930 (17)

 

 

 

 

, a minor, Inre ... 397 (3)

v Magee a 860 (11)
— v Vesey 401 CD, 886 a
1320 (3)

«880 (8), 1037 (10)
312 (2), 428 (5, 1375 (10)
.T1 (6), 111 (9), ip RO

Potts v Batty

——"U:

 

v Turnley

Pounden v Harvey ... 696 “al
Powell, In re 67 (1), 364 (18), 1117 (6)

 

 

 

vP, 21 (1), 724 (3), 853 (4), 900 (1),
902 (7), 972 G35
v Smith as 840 (6)
v Sullivan 1020 (12), 1033 (1)
Power v Barron 690 (3), 801 (8)
—— v Davies 688 (5), 813 (7)
—, Inre 67 (10), 557 (3), 1204 (8),
1206 16), 1852 (5), 1885 (3
— v Kelly 1058 (3
—— v Lenehan B65 (7), 1875 (2),
1385 (2)
—— v The Earl of Mountcashel 1121 @)
—— v Nagle 847 (6), 883 (1)
—— v Physicians, The College of 82 (6),

366 (13), 493 (2), 683 (3), 690 (6),
704 (7), 708 (7), 895 (9), 1333 (1)
114 (5), 372 (8), 567 (1), 632 (6),
6388 (4, 6), 916 (18), 939 (5),
942 (11), 1111 (13); 1244 (1),
1345 (5, 6, 7), 1401 (1)
—— v Reeves 791 (7), 921 (4), oH aes
G 1131 Ags
135 (), 156 wo on me
2)

—-vP.

— v Shanahan
—— v Standish

Power’s Estate, In re, ex parte aioe
460 (9), 984 (12)
460 (8), 638 (4, 6),
791 1, 1244 (6)
461 (4)

 

Estate, In re

 

Estate, In re
Powerscourt, Lord, In re ane 898 (2)
, Lady v Lord P. 122 (10), 1005 (1
Prater v The Earl of Portarlington 841 (15

 

Pratt, In re. 406 (6), 1228 (10)
Preager, In re 106 (1)
Prendergast, In re “187 (4), i Ae
Preston v Lord Gormanston ... 9 (7,

1343 (4)

 

v The Liv. Manch. & New.-on-

 

Tyne, Ry. Co. 24 ea a (4)

v Lovelock 81 (4)
Priaulx v Mackesy oa 52d a
Price, In re... 1024 (4, 7), 1205 (6)

889 (4), 959 (5)
282 (2)
1055 (1), 1069 (10)

Prim v M‘Kenny
Primrose, In re
Pringle v Little

 

xli

Public Works, In re The Commissioners
of, ex parte Studdert 240 (5), 1164 (2),
1228 (5), 1235 (6)
Purcell v Blennerhassett 299 (4), 310 (1),
330 (9), 836 (5), 419 (8), 486 (7),
599 (1), 896 (8), 899 8) 1138 (4)
v Buckley wes 360 (5), 914 (6)
v Cole 5 (6), 6 (1), 7 (2), 8 (18),
10 (2), 827 (6), 598 (1), 671 (6)
——vGibbings... 688 (12), 779 (9)
, In re 369 (1), 885 (10), oe ab,
1003 (8), 1121 @

 

 

 

 

 

 

 

 

v Kelly 221 (3), 266 (1)

v Langston 796 (11), 1049 (2)

v Nash . 980 (3)

oP. 411 (5), 415 (8), 417 10),
418 (5), 453 (6), 619 (6), 740 (4),
765 (5), 858 (2), 877 (8), 1349 (1),
1406 (5)

, Re ... 79 (6)

 

"y Ruckley 326 (1), 401 (12), 687 (5),
647° (2), 1091 (13), 1218 (1),

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

1278 (7) .
v Woodley 365 ahaa 1080 (2
Purcells v Weenies « 872 (10
, Inre 863 (10
Purdon, In re 1011 (8)
Putland v Evans 948 (12)
Puxley v Hutchins 695 (9)
Pye v Coppinger 804 (10)
Q

Queen, The v a ee 1126 Mis ee (1)
v Blake 79 (10)
v Brydge aes 479 (4)
v Cruise 71 (8), 163 (2), 1029 (5),
1057 (12), 1071 (7)
v Dillon 881 (15), 1170 (6)
v Foot 722 (3), 1093 (5, 15)
vGibbings ... aed 1121 (14)

v Graydon 1179 (5
v Guinness 163 (8), 1227 659
v Hamilton Fe 1179 (7)
v Herrick on 1078 (5)
v Hobart "162 (7), 855 (5)

v Irwin
v Jones 163 (1), 468 (2), 12 ay
1126 (8), 1170°(6), 1285 (7,8),
1180 (1)

—— v Lynch 465 (9), 1169 (6),
1179 (1

v M‘Donnell ... 1179 9

v Naghten 721 (7)
——— v Notter on 1078 (1)
v O'Callaghan 1137 (4), 1168 (5),
1180 (2)

——— v Perrin 339 (2), 868 (7)
_— v Prim a 1080 (9)
v Swan 466 (4), 1020 (3),
1121 (15)
v Treston 178 (8)
——— v Usher 1179 (6)

Quin, In re "104 (2), 154 (5), 161 (8),

515 (4), 1230 (1)

 

v O’Keeffe eet 119 (11), 120 (1),
175 (3, 4), 665 (1, 2), 1125 (9, 10),
1233 (5, 6
Quinlan v Q.

25 (4), 29 (1), 136 (1),
157 (1)
635 (2), 1286 (8)

g

Quinlan’s Trusts, In re
xiii [NAMES OF CASES.]

 

 

 

 

Quinlan, In re ath os 1280 (1) | Re Hennessy 88 (9)
Quin v Bagnal kes as 970 (7)|— Herons ... 238 a
Quinn v Q. ... ast wee 1266 (4) | — Hird, Digan and . 88 (8,
_ Hughes, J. sit 95 (8)
R — Hunt 1004 (1
— Johnson. 96 (4
R. D., In re be a 86 (9) | — Johnstones, ex parte Johnstone 368 (7),
Radcliffe v Munce ees 1024 (11) 866 "
Radcliff v Orme 623 (1), 819 (5), 959 (2),| — Keane... 930 (11
1152 (4), 1215 (4) | — P. Kelly .. 88 (5)
Rae v Rae ... ii 924 (8), 1136 (1),|— Kelly — ... 82 (8)
1228 (7) | — Hugh Kelly 83 (4
Raikes v Cherry aa 781 (12), 1122 (7) | — Kelly’s Estate 1003 (5), 1219
Railway Co., The Gt. 8. & W. v Purcell — Kilmarton 80
225 (5) | — Lambert.. vs ‘95 ne — (3)
Railway Co., The Irish South Eastern, — Lefroy, Stein & Co. 97 (7
Inre ... 834 (8), 1310 (8) | — Lyster hi 88 (10)
Railway Co., The Limk. & Wat.» —MCannr ... 85 (1
O’Ferrall w.-BTA (3), 1219 @ 6) | — M‘Carthy "87 (7), 404 ae
Rainsforth v Ryan ... 7)|— M‘Carthy & Co. 89 (1
Ramsay v Huflington 938 (10), 1038 “Aas — M‘Cook’s Trusts ... 1289 (1)
, In the Goods of ae 1038 (13) | — M‘Coote ... 96 (5)
Rankin, In the Goods of oe 1042 (10) | — M'‘Ilroy ... cat 89 (2)
Rathborne, In re wee 330 (6), 3383 (2) | — M‘Kean ... 78 (8), 96 (8),
Ratty v Potts a 727 (12), 949 (99, 100 (2
1045 (10) | — M‘Kibbin .. 94 (6), 495 (8)
Raymond v Evans... 785 (4), 906 (9), | — M‘Nevin 89 (3
925 (11) | — Morgan 109 (10)
v Franks aes 1054 (10) — Morrisson 89 (5), ‘ (5)
Re an Arranging Trader 83 (6), 86 (10), | — Murphy sas 89 (8
106 (10), 109 (9) | — R. = w.. 85 (5), 89 (8)
— A. & B. Arranging Traders 109 (5) | — Murray . 91 (8), 98 (1), 465 (6),
— Bagnalstown & Wexford Ry. Co. 77 (3), ; 574 (13), 1196 (4)
84 (6), 1164 (5);— Nolan ... 78 (4), 91 (6), 856 (9),
— The Banbridge Extension Ry. Co. 77 (2), 1202 (8
84 (6), 1164 (7); — North ... 100 (4), 578 (8), 856 (13),
— Banks, ex parte The Ir. Consols 1219 (3
Min. Co... 140 (1), 1405 (4) | — O'Brien ... ... 78 (6), 99 (4), 388 4)
— Barretts, Colthurst ex parte 833 (8)|— Oldens ... 160 (3), 650 (5), 1161
—Barry .. 89 (9), 404 (1) } — O’Neill ... 1207 Hi
— Bourke ... 88(11)|— Page... 417 ae. 884 oi, me iu
— Brown’s & Blackie’s s Estate 1002 Sy — Parsons ...
— Burke 101 (1)|— Phelan ... ives (SC2); a 7
— Carpenter we 78 (9), 406 (9) | — Purcell ... 2 79 (6
— Carroll a 78 (5) | — Reynolds 1209 (8)
—Clark ... 99 (6), 378 (2), 888 (6), | — Roberts 98 (6)
407 (2) | — Robertson 99 (1)
— Colthurst... a 256 (2), 490 (2),| — Scott : 86 (4)
494 (6)|— Scotts ... “107 (§ 887 @
— Comyn ... ys sive 92 (6) | — Sheehan & Feehan’s Estate (9);
— Connell . am see 86 (1) ing7 (7)
— Collins ... ee ete 1032 (11) | — Sheil & pats .-97 (2), 452 (7)
—Curran ... ae 92 (1),97 (),|— Sim... 8 (1), 87 (6), 98 (5),
856 (12) 106 06 (7) 786 ace
—Daly ... oe 81 (1), 856 (11) | — Skerrett ... 77 (4
— Day os 77 7), 109 & 4)|— Smart = en (7)
_ Dea &Hird 88 (8) | — Smith’s Trustees ... ues 1004 (2)
—Dil,R.&D. ... és 96 (3) | — Smith 87 (5), 404 (2)
—_ Donovan ee in 79 (1)| — a Summoned Trader ‘ 81 (2)
—Ellis .. 95 (7), 494 (11), 1230 (5),|— Tracey ... 99 (3)
1240 (3) | — Ussher’s Estate 1002 (2)
— Fahy eae 92 (4), 98 (2), a — Walsh ... 92 (5)
— Feagan ... — Wetherall’s Trusts. 389 (3)
— Feehan’s Estate, Sheehan’s and lor Oy — Wilson . 2 (5), 100 (3), 101 (8),
1137 (7) 625 (2), 999 (13)
—Fivey ... + 2 (4), 87 (4), 224 (3), | — Wilson, ex parte ee 79 (5), ae (7)
1229 (3) | — Young 812 (7
— Fox... ... ane ai = (3)| Read v Armstrong... us 493 (3
— Gilbert... 95 (1 and others, In re 180 CD, a (5),
—Grehan ... 185 (7), 573 (i 1236 (1 ¢
— Hall ae 95 (10), 657 (4) v Corcoran 881 (12), 1057 37 0S

 

 
[NAMES OF CASES.]

Read v Davis 167 (3), 448 (12),

1066 (11), nae (8)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

xliii

Rice v O’Connor 38 (2), 218 (4),
522 (6), ‘651 (6), sd (18), 679 (7)
30 (18), 1050 (8)

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

—vTheD.&D.Ry.Co. .. 14 (11) | Rich v Anderson...
vHodgens _128 (4), 852 (3), LIS (6), | Richards v Bayly... 44 (1, 266 (7), 623 (5),
1373 (9 633 (10), 690 (14)
v MNeale : 1292 (8 v Brereton 1155 (3), 1212 (4)
Reade v Armstrong ... 978 (5) v Fitzgerald .. 46 (1), 195 (6),
v De Montmorency 497 (6), ls a 477 (8) 483 (1), 1197 AA
Readin v Lidwell wes ‘ee (9) v Goold see 075 (6), 1084 (11
Read’s Estate, In re ... a 1000 (5) v Molony 166 (3), 257 (8),
Reads, In re 97 (1) 821 (8), - (2
Rea’s Estate, In re 786 (2) v Page we
Rede v Henry 1064 $73 Richardson » Austen eRe 1057 )
Redmond v Barber 855 (7 v Goodman ..,. 672 (10), 680 (4),
»v Goodall 968 (1) 729 (1), 1186 (1)
v Gormley 930 (18), re (3) , In re 473 (1)
Reeves v Clarke 26 (1) "y M Causland 93 (6), 150 (4), 571 (3).
v Cox 169 (3), 435 (2), ‘564 (4), v Nixon . 52 (6), 56 (1), 310 (9),
1071 (3), 1090 (3), 1118 (2) 809 (2), 1198 2
vNagle a. 29 (9), 931 (13) v RB. 1042 (16), 1203
Reg. v Barry so 1168 (8) v Robertson ... 1855 (2), 1408 (3)
v Bayley 162 (3), 578 (5), v Simpson 802 (@), iy (4), 757 (8)
597 py 699 (3), 1169 (2), 1810 (8), v Walsh : 1), 1168 (4)
1406 Richey v Gleeson 998 ‘C10, 1053 (16)
— v Bayly 1079 (6), 1222 (2) 1074 (5)
—— v Bowen 703 (8), 725 (8), | Rickard v Hyde a ss 815 (8)
727 (2), 1094 (1) | Riddick v Glennon ... 924 (2), 1828 (3)
—— v Brown eek 1120 (11) | Ridge v Newton... 821 (4), 472 (7),
— v Brydge 1179 (4) 864 (9), 891 (12), 1355(11),J 1875 (3)
v Cruise os 1053 (8) | Ridgeway v Davis ... 118 (2)
v Fennell 1129 9), ne (7) v Munkittrick 205 (9), 1348 @);
—— v Graydon ; 79 (5) 1355 (5), 1880 (6), He (8)
v Humphreys “6 (9) | Rigney v pees 95 (14)
— v Hortley eee 1178 (1) — v O'Connell .. ies 783 ql
v Hurley 1169 (4), 1178 (1) | Ring v Nettles 689 (8), 799 (6
—_vIrwin 721 (6), 723 (1) | Roberts, Ex parte ... 67 (8), 1206 (4),
— » Kelly sts 1169 (5) 1224 (2), 1248 (9)
—— v Lynch 721 ae. ae (2) v Hendricken 953 (9)
—— v M‘Donnell 79 (9) v Hughes . 10 (9), ), 57 (1), 175 (8),
—— » Naghten ‘a (7) 268 (2), 673 (3), $22 (11), 911 (2),
» Notter a 1078 (1) 912 @),9 956 (1), 1027 (13)
— v O'Donnell 723 28 (5), oe (5) , In re .870 (2), 505 (4), 547 (4)
v Phipps 02 (5) v Mayne 542 (2), 590 (8
v Treston 1179 (8) , Re 98
—— v Uniacke “466 (1), 956 (3) Roberts's Assignee, Inre ... 1115 3
v Usher es ee 1179 (6) | Robertson v M‘Cabe 456 (8), ee (5),
Reid, F. & R., In re. 96 (5) 69 (12)
v Thompson ea 1185 (4), 1297 (1) , Re ene 99 (1)
Reilly’s Estate, In re waa 787 (8) | Robinson v Harris "793 (7), 860 (3)
Reilly v Fitzgerald ... 421 (1), 430 (2), v Ince 1042 (6)
486 (4), 876 (11), 922 (4), 1198 (1 ,Inre ‘.95 (2), 108 (6), 1230 (2)
——, In re 473 (3), 786 (12 v Maguire 626 (1), 968 (5)
v Jacob 404 ea 470 OM, a Ap v Shearer 1078 (6), 1088 (1)
—v eee : v Warner 785 (2), 1011 (8)
v R. a ate 1050 3 v Wilson 238 (1), 239 (4),
» Shiel 3 843 (9) 249 (4), 1189 (4)
v Stoney 1351 (1), 1408 (9) v Wynne - es 1129 (6)
v Walsh 260 (2), 288 (3), | Rochard v Fulton 68 (5), 69 (9), 127 (5),
661 (3) 229 he 291 (2), 641 (6), 1140 oe
Reitzenstein, In the Goods of 1041 (2) 1154 (8)

 

v Magan . 20 (8), 680 (7), 702 (7),
"706 (5), 743 (3), 757 (6)
Revell v R. aes 338 (3), 448 (2),

458 (7), 1159 (3)

 

 

 

Revills, In re ea 540 (3)
Reynolds v Falkiner ae 1064 (11)
, In re «.. 83 (3), 90 (8)
v M'Gawley 1120 (1), 1125 (2)
, Re 1209 (8)
vR. “21 (5), 287 (1),

 

"491 (4), 916 (9), 985 (6)

 

Roche v Collins 795 (4), 1089 (4)
v Harding 549 (2), 1147 (1)
v Hassard 119 (8), 174 (7), ©

176 6 (), 406 (4), 1238 (1), 1269 (1)

 

 

 

—,Inre. 765 (7), 1264 ay

1287 (9), 1301 (4

v Keller 695 (138
Roche v R.

386 (1), 615 (5), 896 (4), 1194 (1
1196 (8) 1226 (3), 1242 (8), 1321 (7
1380 (7), 1406 (12)

64 (1). 292 (6). 335 (2), 380 a
xliv

Roche v Sheridan
Roche’s Estate, In re

288 (5), 68 oD
Rochfort v Battersby ;

‘608 (5), ao (7),
787 (15), 790 (9)
v Fitzmaurice 111 (11), 195 (2),
197 (4), 210 (1), 278 (4), 1182 (4),
1188 @, 1196 (3)
Roddy v Molloy .-685 (3), 687 (5), 710 (6),
818 (16), 1028 (4
v Williams ...15 (6), 223 (3), 638 (11),
681 (10), 865 rs 888 (7), 916 (8),

1210 (10), 1824 (1)
Roddy’s Estate, In re .-629 (3), 937 (7),
"950 (99,

 

 

1148 (8
475 (3), 848 (3

Roe v Dodd sae
969 (4), 974 (3), 1122 (8)

Rogan v Weir

 

 

 

 

 

Rogers v Aylmer 880 (1), 945 (6
» Bateman ... 161 (1), 517 (2),
1083 (16)
v Bruce = oe 50 (6)
, In re the Estate of ... 994 (9
In re ... 81 (6), 475 on
a Newton 1061 (9
. Joseph, In re _ 1042 8

 

Rollestone v Morton 449 (3), 453 (4),
582 (2), 633 (6), 715 (6)
Ronayne’s Pea In re 356 (1

73 (6), 995 (9 999 10), 1116 (1

475 (6), 996 (8), 999 10), ay
Rooney v Fox ae 783 (7)
Rorke’s Estate, In re "214 (6), 219 (5),
920 (5), 231 (3), 265 (5), 272 (2),
355 (4), 645 (2), 650 (3), 996 (4),
1150 6,1 1158 cb, 1160 (7),

 

 

Ross v R. «779 (5), 873 (2)
v Steele ..118 (11), 116(4)
v Wood ‘875 (11), 883 (3),

1125 (6), 1210 (6)
Rossborough v Boyse «. 5 (1), 114 (4),
354 (2), 373 (2), 481 (6), 689 Oe
818 (3), 900 (5), 910 (14), 992 (2),
1235 (6), 1339 (3)
Rossiter v Walsh...

490 (5), 5LL (5),
vR. ve

 

42 (4), 315 Q),
281 (1), ‘487 (5), 592 (4), 604 (5),
1196 (8), 1194 (8)
Rotheram v Flynn ...
v Webb
Rowan v Chute

 

167 (1), 453 (9
628 (1), 633 (5
151 (1), 1149 (4)
v 386 931 (8)
Rowland v M‘Donnell “\27 (8), 879 (3),
701 (8), 703 (1), 780 (3), 895 (4),
911 (11), 914 (, 7), 1093 (14)
Rowles, In re .. 484 (7), 612 (4), 906 (4)
Ruby v Foot & Beamish --206 (6), 2538 (6),
735 (3), 922 (9), 942 (7)
Rule v Henry se 186 (2), 1074 (4)
Rushton v Heazle ... 840 (8)
Ruskell ¥ Church ‘843 (10), 885 (8)
Russell v Dixon oe 1352 (6)
v Barrington... “176 (1), 818 (5)
vBeakey  ...112(6). 359 (4), 614 (1),
670 (1), 785 (7), 986 (3)
Bevan Pe 112 (14), 820 (7)
——v Dickson ...415 (7), 557 (2), 682 (6),
894 ae ‘1342 (2), 1845 (9), 1886 (2
— v Murphy .» 80 (1). 178 (2), 180 (2
oR. 366 (15), 746 (3),
792(7), 1019(12), 1040 (6), 1042(1),
1044 (1), 1086 (5), 1251 (8)

 

 

 

 

———_—_7)

 

 

[NAMES OF CASES.]

Rutherfoord v Maziere 383 ( a cy ©»
v Cottnam 837 , 867 103
Rutledge v. R. de 1207 (7)
vR. Ee 360 (14), 418 (3),
711 (2), 718 (B)
4

688 (12), 82 (8

 

 

Ruttle v Scanlan
Ryall v Farmer

 

) | Ryan v Cambie ... 166 (5), 171 (2), 182 (7),

291 (5), 446 (2), 454 (3), 463 os
581 (5 596 (5), 675 (6), 678 (2),

702 (2
v Fitzgerald 1059 (2), 1062 (7)
—,Inre... . 96 (2), 176 (3), 226 (3),
638 (1), 1228 (8), 1243 (9)
— v Lefroy 75 (1), 1058 (5), 1071 {299

 

v Maher Si on

 

 

» Mulligan. “695 (18), 504 (1
— oR... ..260 (5), 344 (3), 853 (8),
1268 @) 1381 (5), 1884 ce
Ryder v Dickson... 7 (9)
v Dickson 1083 3
Rye v Coppinger "854 (6), 865 (11
Ryves, In re ae 1038 (2
Ss
Sadleir’s Estate, In re sie 911 (1)

Sadlier v Whaley 724 (5), 1008 (4)

Salkeld v Abbott 1137 (1), 1168 (1)
Salisbury, The Marquis of, v Ma-

guire ... ase "943 (8), 857 (11)

Salmon v Kiernan ... 1035 (14), 1207 (3)

Sallery, In re 114 (12), 314 (1),

1251 (7)

370 (4), 399 (8)

871 (1), 372 (5), 598 (1),

1273 (5

Sanderson, In re 77 (4), 108 (8), 109 (2

Sandford v Seymour 337 (3), ee ot

Sandys v Murray... us 79 (4

Saunders v Cramer ... » 28 (8), 1S (4),
1223 (2), 1251 (4), 1342 (8), 1845 (1),

1378 (1)
v8. ans 366 (8), 814 (15)
Saunderson v Stoney oe 1261 (8

Salter’s Trusts, In re
Salter v Cavanagh ...

 

Savage v Carboy 805 (1

Savage v O’Connor ... 982 (3

Sawyer v Norris “169 (4), 452 aa
1071 (11)

Scanlan v M'‘Carth

755 (2)
v M‘Coy

: 816 (4), 936 (4), 947 (3),
950 (11), 951 (13)
vUsher 790 (1), 959 (18
Schomberg v eae 327 (7), 902 (5
Scott v Clements ...306 (1), 561 (5), ee OLS

 

 

 

 

v Denroche 1088 33 (103
—— v Harman us 1077 (18)
——,Inre... *, 590 (4), 596 (1), 865 (9)
» King ». 865 (7), 845 (3), 871 (2)

     

. 827 (3), 333 (3), 485 (2),
487 (6), 569 (7), 606 (4), 1015 (4),
1137 (1 1255 (2), 1278 (2)

v Miller 794 (11), ie on

v Nixon 2s 578 (10), "388 Gy
598 (4), 606 (2), 841 (17), 1052 (12
1108 (4), | 1311 (8)

v Roose . 221 Ch, 356 (2) se es

 

 

 
[NAMES OF CASES.]

Scott v Rothe ase 1098 (5)
—,Re .. 86 (4)
v8. 1.189 (1), 280 (2), 353 (2),

 

947(5), 1062 (10), 1141 (6), 1160 (4),
1191 (6), 1883 (1), 1864 (7), 1201 (8)
oS. 15 (8), 130 (5), 188 (6),
180 (8), 217 (6), 362 (13), 435 (3),

668 3 (6, 8), 713 (8), 783 (14)
Scotts, In re.. aes 110 (1), 786 (1
, Re 2 107 (1), 857 (1
Scott’s Estate, Inre 294 (2), 459 (5). 1001 (1),
1108 (3), 1150 (1), 1161 (3)
70 (3), 118 (1), 822 (2),
325 (1

 

 

Scully v Delany
——, Ex parte, In re The Tip. Joint-

stock Bank 141 (2), ee ae
—vS. 159 (5), 713 @), ee ay 819 Uy
38 (3), 940 (1)
—— v Skehane 796 (2), 830 (12),
966 (2
Sealy v Munns 502 (3
Seaver v Fiyey 1019 (1)
Segrave v Kirwan 111 @)

Semple, In re 23 (2), 83 qa), "86 (5), 93 oy
178 (7), 179 (8), 487 (1), 928 (3),

1020 (16)
Seymour v Siree 954 (7), 1031 (1)
Shanney v O’Leary ... 822 (7), 959 (3)

Shannon Commissioners, The, In re 847 (1),

859 (11), 884 (13), 1030 (9),
1316 (6)
v Fagan 842 (13). 1017 (17)

 

"33 (6), 287 (7), 324 (1),
328 (3), 935 (9)

Shany v Garty

Sharpe v §. ... 796 (12)
Sharry v Garty a 1285 (13)
Shaw v Dempsey 839 aD Ae): 1122 A
—,Inre... ace 98 (7)
— v Lawless ae 1269 (6)
——vMMahon 370 (8), 398 (7), 1349 (2),
1882 (11), 1396 is
— v Magill vis Ge 1355 3)
— v Turbett ass 824 (7), on (9),
56 (
Sheehan & Feehan’s Estate, Re iol 1 OP
1137 (7)

Sheehy v Bradshaw
Sheil & Lyons, Re
Sheils, Ex parte
Sheilds v Ellis

539 (8), 569 (9)
97 (2), 452 (7)
508 (10), 1175 (3)
932 (25

 

 

Sheppard v Doolan ... 148 (2), 153 (7),
518 (8, 9), 530 (3), 537 (5),
1099 (5), “1100 (2), 1312 ay

1314 (2 )
Sheridan v Cannon .. 682 (3), 948 (15),
958 (11)
v Joyce 646 (6), 664 (1), 917 (8),
941 (6), 1278 (4), 1282 (5),

1397 (7)
Sherlock v Daly sé ous 1259 (6)

v Disney 579 (8), 670 (8), 678 (5),
682 2a 692 (25, 724 (7), 727 {iy
839

v Kennedy 548 (4), 1178 (1)

 

 

v Roe ste
Sherrock v Chartres
Sherwin v Kenny

Shew v Weir as
Shewell v Hilliard ...

956 (4), 1052 (8)
681 (6), 692 (4)
272 (5), 276 (5), 316 (1),
577 (1), 1362
932 (13), 980 (8
937 i 952 ®

)| Simpson v Frew

 

xlv

Shiel, Ex parte

533 (3), 1024 (18)
v The Incorporated Society 8

587 (3),
1262 (4)
852 (8), 865 (7

579 (6

. 8 (1), 87 (8) 88.6),

v8. ..5 (8), 658 (4), 349 (2

Simmonds v Pallas 21 (4), 180 (7), 179 (4),
217 @), 806 (4), 906 (14), 1025 (12),
1274

Sims v Gua

 

Short v Carroll aes
Shortt’s Estate, In re
Sim, Re

 

122 (9), 128 (8), 553 (3),
1273 (4), 1895 (8)
730 (2), 926 (oe 1186 (8,

 

 

I

v Mullins eee z 46 36S
v O'Sullivan ... 283 (7), 810 (8),
411 (8), 413 (4), 418 Sy 421 (2),

789 (11), 889 (13), 956 (7), 957 (12),
959 (9), 1094 (11)

 

 

 

v Synge aed as 849 (1)
v Taylor 182 (1), 818 (1), 456 (2),

1140 (2

Sinclair v Marquis of Donegal 1005 (6
Singleton, In re 484 (5), i. ee
v Kyle 26 (4)

Siree v Kirwan 349 (3), 726 (4), "790 (4),
920 (8), 960 (3), 1181 (3).
‘112 (21), 679 (13),
690 (8), 789 (9), 802 (8)
472 (4), 483 (5), 612 (7
a 4
992 (4), 1888 Gs G8)

Skelton v Flanagan

Skerrett, . re

 

Slack v Bubieed

 

 

» Gillier
Slacke, In re ‘545 (6 sok 2
SlatorvS. ... ' 4)
Sleeman In re "937 @) ‘877 (5), 09 (8)
v Magrath ~ 201 (3), 313 (8)
Sleeman’s Estate, In re 239 (6)
Slevin v Doyle 362 (7)

Sligo, The Marquis of v Hildebrand 1050 qd)
, The Marquis of v O’Donel 515 (3)
—, | The Marquis of v O’Malley 186 (4),
1066 (1), 1067 (7), 1075 (1)
787 (12), 1093 (1, 2)

 

Sloan v M‘Callen

 

 

Sloane, In the Goods of 1040 (9)
v Mahon ..57 (8), 306 (4), oe 5 (6)
Smart, Re ... “3 im 7007
Smith v Brunker_... 1043 (4)
» Butler 293 (2), 802 (2), 1875 (9),

1388 (6), 1406 (14)

v Chichester — 173(7), 365 (5), 447 (1),
457 CD 525 (7), 618 (4), 626 (8),
628 (2), 818 (11), 870 (3), 958 (3),
1015 (6), 1217 (2)

v Clarke 790 (8), 838 (10), 889 (1),
848 (14), 848 (7), 874 (6), 883 (6),
960 (2), 1170 (7)

v Crowe re 976 (5), 1408 (7

v Doolan a 211 (7), 1186 a

—— v The Dub. & Bray Ry. Co. 26 (7),

34 (1), 146 (5), 648 (i

v Lord Dungannon bt (i886 Gy

1878 (6), 1406 (6

 

 

 

 

 

 

 

——.v Egan i 1061 (3
v Goold ste 799 (1D, 804 (1
v Harding 944 (5), 946 (13), 947 (10),
950 (3, 15)
—,Inre...

777 (5), 999 6

sie Penrose, In re .. 78 (1), 80 (4)
xlvi

Smith & Ross, In re 461 (6), 638 (7), 1245 (2)

 

 

 

 

 

v Martin 1018 (13), 1022 (11)

v Murphy . 472 (9), 853 (9),

953 (14)

v Osborne 159 (6), 1854 oP 1407 (12)
—,, Re... .. 87 (5), 404 (2)
v Rooney e 792 (2). 1027 (4)

v Shannon 525 (1), 536 (8), 944 (6),
1406 (2)

v$. 275 (3), 492 (2), 577 (5), 589 (5),

 

603 (5), 796 (1), 830 (11), 1244 (3),
1249 (5), 1391 (4)
Smith’s Trustees, In re 844 (8), 887 (5),
1004 (2)

Smith v Walsh 580 (7), 798 (5)

 

» Ward . 990 (4), 1133 (6)
Smithwick v Bradshaw... 931 (9)
oS... 841 (5), 884 (2), 782 (3),

 

803 (12), 947 (8), 1249 (2), 1280 (4),

1407 (18)
Smyth, Ex parte ‘ 318 (2), 397 (1), 735 (2),
746 (4), 760 (3)

 

v Murphy 1209 (7)
Smythe, Ex parte 119 (5), 174 (5),
1232 (11)

Snagg v Frith 626 (2), 627 (7), 871 (4),
877 (3

Sneyd v Conroy 845 (5), 1208 (5

 

v Stewart 18 (5), 826 (5
Sneyds, Ex p. aus 80 (9
Snowe v Darcy 925 (8
Somers v Conolly re 1118 (10)
Somerville, Ex parte 503 (8), 545 (5)
S. & W. Ry. Co., The, v O’Ferrall 845 (9)

Southeys v Bateman.
S. E. Ry. Co., In re
Southwell v Daly

413 (1), 415 (3
1032 (2), 1167 (5
681 (11), 691 (3), 701 (4),
806 (15), 1049 (9)

Spaight v Patterson 1105 (1)
Sparrow v Cooper 917 (5), 1011 Tea

578 (2), 739 (2),
1190 (5), 1226 (7)
1357 (4), 1398 (6),

Spearing v Delacour

v Hawkes

 

1407 (8)
Spiller v Mellifont 1088 (12)
Spillesy, In the Goods of 1041 (9)

697 (10), 1008 (14),
1121 (12, 13)
827 (1), 1053 (14),

Splaine v 8.
Spratt v Ahearne

 

1060 (13)
v Dowling we ‘ 696 (2)
Spread, Ex parte, in re e O'Connell 484 (2)

v Morgan 254 (6), 317 (1), 333
648 (4), 791 (6), 855 (3), 900
961 (5), 1828 (4)

 

6)

 

v Newe 788 (8), 789 (6), 910 (15)
Spring v Stevenson 302 oy 550 (9
Sproule v Oates 633 (1), 855 (13), 869 (8

v8... ies ain 1085 (1

 

eo v Dwyer 138 (1), 13871 (5)
alsh * 587 (2), 642 (3),

1110 (8, 9), 1113 (1); 1239 (6),

1315 2 yi 1324 (2)

Squire v Blake

Stack v Baxter

v Royse

 

a 1037 (1)
: 368 (8), 1105 (5)
‘158 (1), 204 (3), 1276 (4)
Stackpoole v S. ae 122 (4), 134 (5, 8),
197 (6), 219 (1), 316 (2), 583 (6),
598 (5), 741 (5), 1191 (4), 1352 (39,

1356 (3), 1360 (4)

 

 

[NAMES OF CASES.]

Stackpoole v Stott 684 (2), 698 (8), 824 (4
Stafford v Henry 73 (3), 622 (6), 1227 (2
v So. 508 (1), 879 oh a Bee
10
172 (1), 511 (7), ron may
833 (14), 911 (9), 912 (6)
see 286 (3), 491 (9),
515 (1), 1249 (8), (5

 

Stamer v Nesbitt
Standish v Murphy

 

Stanley v Bond eS N10
vs. 696 (14), 825 (1), 1035 (6)
Stannard v Lodge ... 49 (7)

Stannus v French 503 (4), 1075 ee
108

v Robinson ...

 

705 (3), 715 by
967 (9), 983 (5

Staples v Harpur 942 (5), 976 (6

 

 

 

v Smith 136 (8), 835 (2)
Staunton v Barrington 858 (3)
v Donohoe 6 (6), 8 (6), 683 (1),

894 (15), 1806 (9

v Sia 231 (5), 1826 2

Stauntons, In re 314 (2), 1859 (3

 

 

Steele v Devonport ... 1096 (15)
v Frazer 1125 (4)
—,Inre... 1137 (8)
v M‘Call ...499 (7), 534 (1), 541 (6),

709 (5), 719 (6)
Steele v Mitchell ...156 (2, 510 (4), 690(9),
752 (4), 832 (6), 857 (9), 919 (9),
1188 (1), 1826 (4)
Steevens’s Hospital, The Gov. and
Guardians of, v Dyas... 35 (1), 45 (6),
147 (1), 523 (6), 1132 (2), 1294 (4)
Stephens v M‘Farland --236 (2), 348 (2),
400 (4), 405 > 677 (4), 917 (10)
v O'Shaughnessy --682 (10), 725 (7)
1093 (13)
918 (2)
226 (4), 643 (4), 1159 (3)
245 (1), 1051 (3)
67 (4), 1205 (5)
841 (2)
469 (10), 1061 (10)
551 (3), 1369 (2)
967 (7), 1023 (7),
1027 (2), 1303 (3)
1101 (4), 1250 (3)
1261 (1)
v Hassard 151 (4), 1332 (3)
v The Marquis of Conyng-
ham... 24 (7), 841 (3), 589 (1),
926 (5), 1008(11), 101] (1), 1106 >

 

Stephenson v Getty...
v Royce
Sterling v Wynne
Sterne, Ex parte

v Goodisson ...
Stevelly ae Murphy ...

 

 

 

Stevenson v Moore ..

Stewart v Alexander

 

 

 

 

1107 o, 1307 (8), | 1827 (12
1328 (1)
v Cottingham ee 445 (3)
v The Marquis of Donegal 112 (12),
254 (1), 293 (2), 435 (1), 457 (2),
717 (5), 742 (3), 764 (4); 788 (13),

833 (2), 871 (3), 1052 (9), 1142 (6
v Ferguson ... 411 (4), 655
UV Dire sis 843 tS

 

 

 

St. Clair v Crawford 1029 (8
St. George v Brazier 811 (5
, In re 995 (2

 

y Redington .. :

"241 (1), 1181 (8
St. George’s Estate, In re

..298 (3), 734 (1),

747 (3)
St. Leger v Ferguson 656 (5
Stirling, Ex parte ...140 (4), “442 es 788 83
, In re the Estate of

 

: 997
1106 (6), 1285 (14)
[NAMES OF CASES.],

5 (1), 218 (6), 904 (6
ssi 258 Gis oY

Stirum v Richards ..
Stock v Aylward

 

 

617 (3), 1017 » ar
—., Ex parte es 802 (4), 1032 (3
Stoker v 8. se ais 366 (6
Stokes v Coltsman ... 824 (7
, In re 865 (10
‘Stoney v Saunders .. 1.278 (4), 207 (1), 575 Cs
18 (2), 909
Stopford v Hodder ... 414 ‘
vCronin... a 859 (15)
Stott v The Northern Ry. Co. 366 (11)

Stoughton v Crosbie ..400 (3), sor Oe
520 (8), 711 (8), 925 (13), 927 (10

943
Stowell, In the pods of 924 (6), 1340 (8)

Stradbrooke, Lord, v Fitzpatrick 926 (4)
Strangways v Harman ais 1048 (6
Stratton v Hillas 1375 (7
Strickland v M‘Nicholas 500 (5),

1239 (11), 1407 (15)
777 (12), 817 (6),
957 (13), 1034 (14)
.308 (8), 731 (3),
736 (4), 1146 (3)

Stuart v Burrowes ...

v Lord Castlestuart ..

 

 

 

—— v Donegal, Marquis of 435 (1)
v Ferguson ... 921 (7), 1153 (1),

1322 (6)

—v Kennedy ... 765 (2)
Stubber v Hornsby ... “240 ( § ee BEES
vs. 811 (2), ‘659 Q»,

 

 

 

xvii
Synge’s Trusts, In re ene 1364 (5), nae 4
Synnott v Simpson ...
T
i 802 (2)
1366 (4), 1408 (2)
280 (1), oe oo

151 (8), hs (1),

Taaffe v French

       

— v Ferrall

Taaffe’s Estate, In re

 

 

 

1334 (2)
Tabuteau v Warburton 877 (10), 1018 3}
Talbot v Gordon see 1349 cs
v Hamilton ... 921 8s 942 3
v Kennedy 785 (8), es , 936 (8
v Minnett . TOY ), 705 (8),

882 (4), 908 (12), J 1098 (45, 1102 (7)
Tangney v Holmes ... 837 (8), 888 (3, 6)
Tarrant v Allen 792 (1), 805 (7), uy 1
Taylor v Boag eee 527 (1

 

 

 

v Bunne ees 1269 (4), 1385 (6

v Campbell ...264 (4), 847 (7), 974 3

v Creagh oa 556 (2), 566 (5),

1379 (6), 1894 (3)

——— v Emerson. ...187 (1), 197(7), 211 (1),

361 (1), 622 (2), 955 (10), 1069 (11)
, Ex parte, Power’s Estate 460 (9),
934 (13)
— —vGorman ... 181 (11), 211 (6),
225 (2), 860 (10), 869 (5), 883 (2),
887 (4), 1099 (4, 10), 1151 (4, 5),

1210 (8), 1218 (2), 1219 (9)

 

 

 

 

1040 (11), 14s (1) v Hughes 73 (2), 348 (6), 438 (1),

v Williamson 68 (4) 439 (2), 965 (3), 971 (6), 982 (8),
Studdert, ex parte, In re The Com- 1227 (1)

missioners of Public Works 240 (5), vT. --111 (6), 197 (8), 819 (12),

1164 (2), 1228 (5), 1235 (6) "889 (1), 1290 (5), 1291 (4)

Suir Island Charity Schools, Inre 121 (5), v Young 695 (11), 824 (12), 1231 3

125 (5), 1007 (6) | Templeton, Lord, v Murdock 413 (8),

Sullivan » Delany 1004 (3), 1006 (14) 450 (1), 1077 (2), 1242 (4)

v Bayley 885 (1), 1098 (11), | Tenant v Watson 986 (9), 1022 (18)

1119 (6) | Tennant v T. 785 108 1020 (11)

 

, In the Goods of 236 (5), 1040 (8)
v Sie 1.292 (7), 295 (6), 302 (1),

449 (4), 443 (1), 715 (12), 1055 (6),

1059 (9), 1140 (7), 1187 (3)
Summoned Trader, a, Re... 81 (2)
Surridge’s Trusts The, In re 383 (1), 664 (4)
Swan v Colclough 153 (5), 529 (3)

 

 

 

 

v Doak 1025 1 a Ree 1231 (8)
v8. ow. 0 (1), 286 (4)
v Urquhart 696 (3)
Swanston v Simpson 1.967 (1), 987 (2)
Sweney, In re 1002 (11)

3 246 (6), 452 (5)
702 (1), 707 (5), 799 (4),
840 (7), 956 (11), 1047 (11)
Sweetman v §. 249 me) 1087 (8), 1397 6
Swift v Donnellan ... 868 (15)
v Le Strange .. ia 1052 (10)
v M‘Tiernan ... 672 (11), 917 (11),
938 (6), 941 (8), 1049 (11)
ww. 36 (2), 49 (4), 51 (2),
618, (6) 806 (8), 833 (6),

Sweeny v Fleming
» Hall

 

 

 

 

v8.
"470 (1),
907 (6)

Swiney, In re 555 (2), 1340 (6)

Symes, In re 1204 (3)
Synge v Frost 811 (8)
— , Inre... 994 (5)
— oS... 1.176 (4), 180 (4), 184 (4),

778 (8), 1121 (9)

 

Tennent v T. one 838 (10), 1176 (4),
1274 (1), 1275 (1), 1383 (6)
ws. T37 (8), 748, (9), 758 (2),
1186 (5)
166 (1), 229 (4), 445 (6),
“607 (8), 630 (9), 1152 (6)
Ternan v T. 916 (17), 936 (14)
Thackwell v Jenkins 505 (2), 509 (5), 546 (8)
Therry v T. Pe 678 (11), 1286 (3
Thomas v Burne .. 153 (6), 531 (5
ay ws 62 (2), 864 (25, 394 (3),
‘74 (o. 550 (6), 564 (2), 794 (45,
1088 (10)

Tennison v Moore

 

v Sweeny

 

Thomas’s Trusts, In re 1294 (1)
Thompson v Beamish 784 (6), 948 (18)

v Heffernan ... = 236 (8)
—— v Irwin 795 (5):

——v Lockwood 7. 668 (5), 781 (3),
788 (10), 785
v Magill : Ms ate

 

 

 

———v Maxwell 12 (1), 1019 (18), 1025 10)
v Sheil 472 (5), 474 (3), 1388 CLS qa)
——— v Shiel 65 (2), 943 (4), 1261 (10)
v Simpson 17 (5), 36 (3), 159 (2),

229 (2), 266 (4), 847 5

581 (7), 582 Ce 593 o oat ay

it ist 8 Ch
’ + 1

1281 (6), 1321 oe, 1826 (2) ree
x|viii

Thompson v Thomas 821 (12)
v Todd ..88 (4), 216 (1), 320 (4),
321 (3), 322 (5), 762 (3), 1235 (11)
Thompson’s Estate, In re 276 (2), 576 (3),
1362 (4), 1881 (4)

Thornhill v Glover 4 (1), 9 (8), 10 (6),
486 (2), 607 (5), 817 (5), 1114 (5),

@)

1827
In 287 (2), 994 (6)
Thornton, Inre 19 G), 28 ®, 69 (6), 99 (2

 

 

 

oT. 253 (5), 1897 (3)
Thorpe v Browne 463 a8 639 ae a (5)
Thunder v T. 674 (6

397 cf
398 (4), 623 (3),
825 (8

Tibeaudo, In re = 998 (5), 999 (9
Tibeaudo’s Estate, In re 18 C10), 534 3
Tierney v Byrne 728 (8), 9382 ey i (10)

Thunders Minors, In re
Thwaites v M‘Donough

 

 

, in the wan 8 of , 38 (12)

VIn re 67 (@), 1204 (5)

Tighe v Munce ae 1024 (11)
v Walsh 494 (8), 1125 (3)

 

Tilly v Browne 910 (12), 912 (8)
Tilson v Lawder 905 (6), 908 (3)
Tip. Bank, The, Inre; ex parte Ginger

140 (2), 853 (3)

Tipping, In re 994 (4)
Tisdall v Lawler... 908 (3)
Tisdall’s Will, In re the Trusts of 321 (1),

376 (3), 1287 (3)

Tobin v Redmond 472 ree) 1059 (5)

Tobyn, In re 916 (12)
Todd v Chichester 1089 (6)
—vThompson ... 1839 (9)
Toker v The Earl of Lanesborough 939 (4),

1131 (6)

 

v Maguire

854 (1), 945 (8). 1340 (2)
Tom v Deane aa

332 (6), 703 (5),
918 (5), 974 (4)
224 (6), 466 (95
Tomlinson v Cox --- 689 (14)
Tommey » White 360 (13), 366 (3), 673 (5),
688 (1), 787 (14), 789 (10), 790 (11),
791 (1, 809 (3), 816 (12), 894 (109,
959 (8), 960 (7; 9), 987 (9), 1288 (1 a)

Toohy v Stoney .. is
Toolé v Duffy” ... 472 @) 1127 a3

Tomb v Orr

 

 

 

Tottenham, Ex parte eee }
v Molony a 656 3)

-vT. . 1076 (8)

v Townsend 40 (2)

Tottenham’s Estate, In re 45 (1), 462 (9),
529 (a), 996 (3), 998 (6), pe

Touhy v Burke ... sss
Townley v Bond.. - 5387 (4), ive (3
Townsend v The Earl of Kingston 340 (1),
938 (1), 939 (11), 1222 (11)

v O'Callaghan 709 (3), 717 (9)
v Warren... . 849 (2), 1115 (1)
Townshend v Barry 1070 (7)
v Newenham «. 803 (1), 805 (8),
906 (5), 987 (8), 1022 (1), 1125 (7)
Tracey, Re “ 99 (3)
Trader, Re an Arranging 83 (6), 86 (10),
106 (10), 109 (9)

 

 

 

 

, 2 Summoned, Re ... 81 (2)
Traders, Arranging, A. & B., Re 109 (5)
Trant, In re <i eee 1053 (8)
Tredennick v Graydon . 169 (10), 934 (6),

1065 (7)

 

[NAMES OF CASES.]

Tremble v Simpson .. 624 (2), 1094 (10),

1108 (8)
Trench v St. George 136 (6), 286 (5), 531 (4)
Tressilian v Caniffe «. 458 (5), 926 (6),
929 (2), 1058 (7), 1155 re

Trevor v Thomas 156 (4), 391 (5

Trimleston, Lord, v Farrell - 910 (5),
1017 (12
Triphook v Griffin «. 824 (3
‘| Tristram v Harte 596 @), 1011 ®), 1013 (5)
Trotter v Ellis 970 (6)
Truell, Ex parte ies «. 1113 (6
Trust of Godfrey, The ... 1030 (5), 1292

Trustees, The, of the Earl of Portar-

 

 

lington v ’Scrope +» 830 (14)
of Smith, In re 844 (8), 887 (5),
1004 (3
Trusts of Boyle, Inre ... +» 1289 (4)
Burgess, The, In re 235 (5),

239 (9), 1201 (6)
94 (5), 377 (4),
403 (6), 575 (2, 3)
Cleary, The, In re 1860 (1), 1862 (5)
Connellans, Inre ...1896 (9), 1408 (12)
Dennis, The, Inre 730 (8), 744 ae
759 (6
Dowling, The, In re 736 (2), 1190 i
Gerrard, The, "Inre 1095 (10), 1124 (6)
Grant, The, In re ...1286 (, 1292(10)
Gregory, The, In re . 13843 (2)
Guinness’s Will, The, In re... 112 (18),
oe ao Dy 1280 (6), 1399 ay
140.
Howard, The, In re 313 (4), 1402 (5)
Jackson, The, Inre 427 (2), 1867 (4)
Jager, The, In re 416 (5), 427 (1),
729 (3

Kelly’s Will, The, In re 72 (1), 126 (5),
322 (8), 679 (5)
443 (5), 1272 (4),
1359 (4)
Lockhart, Ex parte Lockhart 23 (5),
114 (7), 216 (2), 236 (7), 400 (5),
615 (1), 888 (12), 867 (1), 917 (3),
919 (7), 1287 (4, 1408 (13)

 

Casey, The, In re

 

 

 

 

 

 

 

 

 

 

 

 

 

Lane, The, In re

 

 

 

— M‘Cook, The, In re -. 1289 (1)
Martin, The, In re 782 (4), 759 (3)
Molloy, The, In re ve 909
Mussenden, The, In re - 1292 (6)

 

424 (3), 730 (1)
635 (2), 1286 (8)
370 (4), 399 (8)
383 (1), 664 (4)
339 (1), 1364 (5),

 

Orme, In re
Quinlan, The, In re
Salter, The, In re
Surridge, The, In re
Synge, The, In re

 

 

 

 

 

 

 

 

1384 (3)

Thomas, The, In re - 1294 1)
Tisdall’s Will, The, In re ... 321 (1),

376 (8), 1287 (8)

Wetherall, The, In re . 889 (3)
Willomier, The, In re 1377 (5),

1408 (11)

Trye v The Earl of Aldborough 184 (1),

187 (4), 608 (2), 1071 (6)
Tucker v Baker «- 279 (2), 814 (5),
577 6), 1350 (1), 1361 (4), 1364 (4)

 

v Henzill ... 230 ©, 643 (2), 1156 G1)
Tufnell, Ex parte 3s 1294 (4)
Tully, In re a. 846 D, 850 (11)
Tuohy v Burke . ‘ ... 1885 (1)
Tuomy v Rahilly 258 (1)

Turkington v Kiernan 4T4 (2), 845 (7)
[NAMES OF CASES.]

Turner v The Marquis of Donegal 1051 (14),
1055 (13)
v The Dub. & Belfast Junc. Ry.
Company . 76 (2), 91 ) 95 A
1165

 

 

v Robinson
Turner’s Estate, In re
Turnley, In re

142 (3), 977 cs B)
509 (8), 591 (4)
609 (5), 613 (9),

865 (12), 1300 (8)

782 (8), 930 (3, 4)

= 162 (6), 168 (5),

598 (7), 1222 (3), 1314 (8)
. 265 (1), 642(4), 708 (4,
1142 (7), 1281 (7)

53 (3), 58 (8), 805 (3)
a 875 (18

Tuthill » Latouche...
v Rogers

 

Twycross v Moore ..

Tyndall, In re
Tyrrell v Hassard ...

U
Ulster Canal Co., The, In re 859 a2), ne io

Uniacke, Inre __... (11)
University, The Catholic, In re {809 (1),

1308 (3)
Unthank v Gabbett 629 (9)

Uppington v Bullen 118 (8), 134 (10),
233 (3), 354 (6), 372 (4), 629°(4),
713 (1), 840 (16), 854 (9), 1091 (8),
1218 (7), 1888 (2), 1873 (8)

 

 

~v Tarrant 7 (1), 592 (1), 789 (7)
Upton v M‘Garry ...833 (15), 848 (6), 888 (5)
U 418 (7), 419 (5)

v . nee
Ure, In the Goods of 163 (6), 339 (3
1040 (1

Urquhart v Deey 690 (4), 818 (17)

Usher v Boyd ong 495 (5), 1251 (2)
— , In the Goods of 1038 (7), 1235 (10)
—— v Scanlan . 794 (7), 894 (3), 903 (8),

911 (8), 1112 Ai)

Ussher’s Estate, In re 1002 (2)
Vv

Valentine v Middleton se 827 (8)

Vance v The Earl of Ranfurly 152 (1),

362 (2), 508 (10), Sid (5), 527 (25,
533 (4), 540 0 @), 689 (15), 888 O

 

———, In re 1
Vaughan v Magill : a 647 (4), iit Q),
1324 (4, 5)
- v Walker

..-883 (9), 580 (5), 590 (D,
608

867 (2), 1029 ra
1196 (1)
Verschoyle v Perkins 1250 (6), 1262 (5)
Vesey v Elwood 1098 (13), 1100 (5), 1101 (8),
1306 (5), 1812 (4), 1816 (5), 1321 (2),

1331 (6)
Vigers v Pike 259 (4), 849 (4), 489 (1),
895 (10), 1306 (3)
647 (3), 1110 (10),
1319 (10
1018 (13), 1015 (8
14 (4), 809 (9)

Vereker v Lord Gort

Vignoles v Bowen

——vVv.
Villiers v White
Vincent v Fitzgerald 558 (1), 1374 (1, 8)
v Going ..421 (7), 579 (1), 585 (2),
794 (8), 862 (7), 891 (18), 932 (12),
1064 (7), 1072(2), 1101 (9), 1109 (4),
1110 (4), 1808 (5), 1812 (1), 1821 (ay,

 

 

 

1331 (8)
——~— v Gubbins 1078 (3)
v Helsham 1072 (12)
v Percival 1357 (1)

2) | Viridet v Evans

) | Walcott v Bloomfield

 

xlix

Vincent v Thwaites... 1018 (6), 1018 (15),
1099 (9), 1100 (6, 7), 1109 (3),

1111 (15)
— v Willington 578 (4), 597 (2)
464 (7), 1058 3
425 (1), 1855 (9
ex parte 92 (3)
788 (11), 828 (4),
948 (12), 1846 (3)

 

Vize v Stoney
Vogan, In re; Dickson,
Von Stentz v Comyn

Ww

868 (6)

695 (18)

:. 50 (3), 413 (11), 1804 (7)

1285 (6), 1287 (12)

233 (1), 736 (1),

1195 (4), 1200 (1), 1349 (3)

; 647 (5), 1142 (3),

1155 (2), spar ft)

v Bristow .. 08 (4)

v Condon 158 (7), 226 (2), m0 ey

619 (4), 628 (7), 985 (1), 1090 (2),
1107 (5), 1243 (10)

v Graves’ 574(11), 890 (4), 1218 (6)

vSmyth ... 448 (5), 1160 (5)

Waldron, Ex parte ... 503 (9), 514 (4), 546 (2)

Wales v Grier is 697 (15), 825 (7)

Walker v Daly sea 361 (12), 725 (4),

804 (12), 906 (15), 907 CL, 1035 (7)

v Lord Lorton ... 50 (8), 200 (3),

342 (3), 1225 (2)

405 (4), 856 (4)

"262 (1), 473 (4), 649 (1),

1033 (2), 1825 (3)

397 (5), 1287 (1)

Wade v Stephens

v Stewart

v Williamson . a
Wakeford, In re

 

 

——— v Lynch

 

 

 

 

 

—— v Molloy
v Power

 

—— v Taylor

 

 

 

 

» Tilly 944 (9), 948 (7), 1222 (8)

v Wow 398 (9), 654 (D,, 831 (1)

Wall v 29 (9)

v Byrne 287 (2), 872 a, BIT Ane)
——, Ex parte, in re Wall...

— Inte. .. 832), 85 (2), 86 (6),

90 (4), 933 (9), 993 (9), 997 (99,
1003 (5), 1228 (6)

 

 

 

——,, In re the Estate of see 998 (18)
——v Wilkinson  ...258 (2), 267 (9), 978 (1)
v Wright ...196 (5), 205 (5), 273 (8),
575 (5), 1182 (2), 1405 (6)
Wallace v Blake _...818 (8), 836 (5), 886 (12)
v Donegal "959 (1), 340 (5), 646

v Dougall... 231
v Macan --91(1), 112 (23), 119 ap

 

173 (9), 405 (2), 449 (5), 454 (99,
466 (10), 797 (5), 838 (11), 856 (19,
955 (5), 1231 (13)
v Mitchell 681(9), 682(8), 1119 (16)
v Patten ...264.(1), 524 (4), 790 (6),
854 (13), 875 (6)
vW. ..222 (8), 270 (3), 278 (5),
354 (1), 654 (2), 957 (15), 1183 (2
Wallen v Barry ia 849 (8), 872 as
Waller v Blennerhassett 1064 (13)

 

 

 

 

v Fowler —_164 (2), 932 (9), 1119 (2),
ee ct 1128 (1), 1205 (4), 1278 (6),
, In re

 

997 (18), 1112 (9)
90 (5), 94 (4), 184: t 3),
572 (8)
12 (8), 662 (4), 1004 (7),
1009 (7), 1018 (16), 1014 (4)
Walpole v M‘Clintock 549 (6), 560 (6),
619 (3)

h

ag Wildridge 7
Walmsley v W.
1 [NAMES OF CASES.]

Walsh, Ex parte 101 2

 

 

 

 

 

 

 

, In re .. 87 1), 92 (7)
_v Keane 1061 (11), 1248 (7)
v Kinnelly 696 (7) 1281 (6)
, Re... 92 (5)
-v Ryan = 1871 (1)
.v Studdert ... "854 (4), 1214 (2) | -
co W. . 10 (1), 478 (7), 489 (1),

BOL (12), 596 (2), 672 (75, 674 (89,

689 (7); 723 (7), 799 (3); 880 (109,

905 (1), 1020(8), 1052 (4), 1067 (11),

1074 (1)
v Wilson

 

.-870 (8), 846 (5), 956 (10),
1037 (2), 1209 (15, 1237 (4)
Walshe v Keane... 1067 (3)
v Sheehy ... 845 (8)
Walsh’s Estate, Pte re 1.185 (6), ey (4)

87 CQ)

Warburton, Ex as
Ward v W. -320 (8), 328 (4), 331 (5),
697 (12), 1856 (6)
= 1040 (13)
155 (4), 534 (5)

 

 

, In the Goods of
Ware v French

Waring v W. 1.824 (5), 464 @y 608 3
9 (2)

Warningham v Watts B08 6

Warner v Latouche.. 738 (2

Warren v Bateman ...484 (8), 925 (3), 1099 (1),
1101 (3), 1112 (7), 1116 (5), 1130 (3);
1131 (19, 1268 (3), 1310 (1), 1314 (1)

v Newton ...378 (6), 381 (8), 388 (7),

1176 (3), 1401 (4)

 

 

 

 

 

v Power 5 987 (5)
» Thunder 36 (8), 519 (7), ef oo
85 (7
vW. _ ...1071 (1), 1142 (4), iin (4)
—v Wright... 56 (6), 761 (1), 1403 (2)
Wat. & Limk. Ry. Co. v O'Farrell 574 (3),
1219 (5, 6)
Waterpark, Lord, v Austen ... 980 (2)

Watkins v Lloyd 485 (10), 524 (2), 535 (5),
1027 (8), 1084 (8)

Watson v Fitzpatrick «185 (4), 863 (3)

 

 

 

v Pim 889 (14), 948 (4), 989 (3),

1095 4 1119 (1), 1122 (2)

v Powell + 56 (7), 215 (1)

oW. o 1041 (3)

Watt v W.... "66 56 (©), 838 (17), 1255 (1)

Watters v W.
Webb v Cashel
Webber v Jones -
Webster, In re ».-91 (9), 109 (8), 925 (10)
Weir v Chamley ..896 (4), 565 (6), 749 (1),
758 (3), 886 (2), 1107 (2), 1174 (6),

881 (7), 1077 (9)
610 (1), 1077 (10
933 (2), 1103 (3

 

1815 (4)

—— v Ormsby 820 (5)

Weldon v M‘Gee cap 830 (8)
v W. es 864 (6),
v O'Reilly 1054 (1), 1059 (14)

 

Welland v Middleton 917 (12), 938 (7)

941 (8)
722 (2), 1078 (7)
556 (5), 1877 (4)

Wellesley v Mornington
Welply v Cormick ...

 

 

 

 

v M‘Namara.. 997 (6
Welsh v W. 1018 (5), 1022 (8), 1117 9
West v Farrell 1037 (8)
v Kerr ‘BBB (8), 1394 (2)

v Lawday wes 1373 (8)
Westby v Ford 1121 (7), 1188 (2)
v Greene 850 (3), 1211 (9)

vW. 15 (2), 17 (4), 30
32 (1), 485 tye a (eS, Noa aN

 

) | Westropp v Healey ...

 

813 (8), 857 (8)
a 932 (5
389 8

S 1069 (2)
2.820 (9), 965 @, 970 (8),
oW.

634 (3), 1031 (16), 1050 0
Whalley, In re : (

Wheatley v M‘Dowell
Wheeler v Bulwer ... 1028 (5)
Whistler v Aylward, in re Fitton 794 (12),

796 (7), 907 (11), 911 (7), 1027 (9)
White v Anderson...296 (7), 1191 (7), tee
v Baker ats i 27 (8

v M‘Donnell...

Wetherall’s Trusts, In re
Whaley v Clarke
v Morgan

 

 

 

471 (2), 1393 %

 

 

 

 

 

 

 

 

v Baylor . 76 (5), 149 (2), 208 (9),

270 Cae 449 aie a (3)

v Blake wis 5 1)

v M‘Carthy *O78 (8)

v Mansenth.. Ms (2), 350 (5), ae (5),

3)

v O'Grady 119 9 , 174 bi 1989 a0)

v Phibbs 1129 (5)

v Scott 948 (2)
v Supple

 

206 (1), 210 (4), ue (6),

 

, Ex parte vTommey 791 @), | a 10)

 

 

 

v Villiers pe Sy
v Walsh see ane 979 (9)
v Wz... 781 (18), 806 (11), 988 (4),

1063 (8)

Whitelaw v Sandys ... -3896 (1), 972 (18),
1008 (10), 1089 (11),’ 1089°(5),

 

1122 (11)
Whitla v Halliday 861 (14), 705 (6),
713 (4
Whitney v W. 868 (4), 916 (14
Whitsitt, In re 838 (2), 1002 (13)
v Thompson ... 275 (1), 314 (6),

577 (4), 1361 (5)

Whittle » Halliday 361 (14), 705 (6),
7

 

 

13 (4)
, In re 110 (5)
Whyte, In re 285 (9)
v Meade 357 (1), 894 (11)
Wide Street Commissioners of Cork,
Inre ... ate 587 (8)
Wide Street Commissioners, Sak
Inre .. ‘ ATT (2)
Wier v Chamley 909 (3)

Wilcocks v Hannyngton
Wilder v Farrell 806 (14), 972 (2
Wildridge v M‘Kane . 130 (8), 865 (12),
495 (4), 688 ee 779 ia: oe (8)
v Whithorne ... 1204 (6, 7)
Wilkin, Ex parte 129 @
Wilkins, In re ‘53 (2), ie (3
Willeock v Love 4)
Willens v Tandy
Williams v Armstrong

‘381 (6), 387 (8)

 

"30 (8), 622 1), 1313 5
- ua tt 560 mG

 

 

 

 

 

 

 

 

 

v Atkyns me 409 ( 3
v Dillon 1059 (6), ie 4
, Ex parte 15 (1, 3)
v Langley “40 (1), 522 a)
v Massey 625 a 810 (8)
» Morris —--255 (6), 512 (1), 618 (5)
v Reeves 797 Wo 1118 8), 1208 oa

v Shaw
v Walker a 9)
v W. 158 (2), 1149 (3)

 
.

Williamson v Tucke 345 (8), 500 (7),
545 (1), 818 (4), 1019 (11, 16)

Willis v Latham 1116 (8), 1809 (7
Wills v Corcoran a ee 929 (12
Willock v Dargan 76 (1), 79 (8), 267 (6),
329 (4), 835 (4), 457 (3), 1824 (6)

Willomier’s Trusts, In re 1877 (5), 1408 (11
Wilmot v Aylmer 527 (6), 822 (4), 958 (17)
Wills v W. 372 (6), 1174 (9), 1175 (4),

1371 (4), 1400 (3) |

Wilson v Bell 288 (2), 668 10} 903 (125)
&W.

 

 

 

 

 

 

 

 

 

 

(NAMES OF CASES.]

li

Woodward, In re 388 (8), 481 (11),
1038 (5

1073 (4), 1087 (11)
841 (10), 1209 (3
aa 1299 (3

688 (11), 897 (4)

1288 (11), 1290 @),

1297

e B40 (2
©. 682 (5, 12), 924 (1),
951 (8), 1810 (10), 1382 (5)

 

v W. a
Worrall v White aus
Worthington v Pakenham
Wray v Pollard
Wren v Swanton

Wright v Everard...
v Griffith

 

 

 

 

 

 

 

 

 

 

 

 

 

 

———, Ex parte, in re The Gt. v Hamilton 170 (11), 322 (7
Ry. Co. v Rosenthal... 473 (2) | ———— v O’Brien 1008 (8), 1057 (6
——— v Hoare 954 wa) 1081 (1) v Perrin on 696 (7
v Owens 1052 (1), 1055 (9) v St. George .. 1 OT Os * 41 @,, Le (2)
v Poe 417 (4), 419 (6, D oe 3 8) Wrixon v Condran ... 80 (10)
04 (5) | — , In re 7904 @
, Re 2 (5), 100 (3), 101 (8), ‘e2b (2), \ In re the Estate of 60 (4), 747 (5
999 (18) y Vize 3 (5), 256 (3), 282 (4),
———,, Re, ex p. Charley 79 (5) 309 310 (5), 411 (2), 486 (1),
y Simpson... 867 (9) 488 (7), 583 (2), 593 (4), 598
ow. Bl (2), 1038. (6) 1 1068 68(7), 1118¢8) 605 (4), 623 (4, 8), 632 (4), 901 ey
v St. Leger ... 1074 (7)
, In the Goods of 1038 ¢ ( 3 Wybrants v W. a 1082 (14)
Wilton v Ferguson 455 (7), 892 (10) | Wynne v Brady “ (8), 197 (5), 427 (4),
,Inre ... 34 S 829 (11) 631 (9), 850 (2), 859 (4), 862 (4),
Winning v English ... 1128 (7) 955 (9)
Winter v Homan 246 (1), 1059 (4), ae as v Knox 843 (6)
(12) v Knox & Swan 782 (2)
Wisdom v The Corporation of Dublin Wyse, Ex parte 90 (2)
504 (8), 540 (6) ,Inre ... “414 (1), 589 (2)
Wise v Ashe a 1076 (10) | —— v Lambert “116 (7), 184 (8), 221 (1),
—v Beresford 245 (2), 449 (9), 455 (4), 513 (3), 919 (5), 936 (1)
1117 (11), 1151 (3) v O'Grady ‘ 1077 (17)
—— v Cork, The Bishop of ... 792 (12), v Snow 62 (4), 152 (5), 388 (2)
1119 (3) v Waters 105 (5), 856 (5)
v Palm tee at 785 (4) v W. 651 (8), 939 (1), 988 (8), 1023 (1)
DW. BT (7), 642 (2), 833 (8), 871 (1),
1174 x
Withington v Blake 1088 (15), 1117 (18) | Yarborough, The Earl of v Brazier _ 840 (5),

Wolseley » Worthington 228 (3), 462 (3),
919 (2), 9381 (1), 1225 C1)

Wood v Jamieson 157 (8), 161 (5)

 

 

— v Knox 292 (1), 225 (1), Bd (5),
41 (1)
St. George ae 6d (8
Woodhouse v Boyd ... 781 (1D, 782 (5
v Molony eg 818 (18)

Woodley v W. *8 ...

Woodlock v Mahony ...

Woodroffe v Allen : 1331 (4)

v Greene . 228 (1), 448 (6, 8, 9),
459 (6, 7), 808 (1), 815 (2), 881 (13),

1062 (8), 1076 (2), 1153 (1)

,Inre Bo 110 (2), 786 (14)

365 (15), 849 (2)
748 (2), 759 (4)

 

 

 

 

’y Johnston 28 (5), 1236 (9),

1268 (4)
Woodrooffe v Murphy 879 (7), 1029 (10)
v Marshall 383 (8), 406 (1), ee oa '

 

 

70 (8),

v Fannin B24 (5) :

Woods v Davis 180 (5), 444 (4), eis ru i

— v Martin 268 ee 150 i ,
— v Murphy

1817 (7), 1022 (10), 1122 (3)
Yelverton v Lord Avonmore 494 (10),
801 (12), 810 (I)

 

Young, Re ... 107 (7), 812 (7)
v Avrell 1028 (11), 1088 (16)
—— v Hassard

136 (4), 187 (6), 301 (2),
308 (2), 886 (2, 4), 565 (4); 1342 ty
1348 (8), 1385 °(7), 1388 (1, 49,

 

1405 (1)
——— v OReilly ey qd)
—— v Scott zz 4 (3)
v Wilton 363 (9), 594 (2), 599 (8),

678 (3), 723 (9), 889 (6), 896
899 & 1052 (5 By 1117 oy, 213

 

112 (16), 1022 (16), 1030 (7),
1

 

 

 

1104 (8)
v Henry 869 (12)
, In re 930 (12)

Tar ae oe 679 (11)
v owan iT 2), 1144 (4
v Steele CO), (4)

 

800 (3), 1034 (11)

v Zwickerman 689 (11), 799 (8)

 
«ea A few cases, which were omitted from their proper heads, will be found at
the end of the volume, pp. 1409, 1410.
INDEX

TO ALL THE

IRISH EQUITY REPORTS,

FROM T.

ABANDONMENT.

— Of Lien. See Lien, III.
— Of Proceedings, Hffect as to Costs.
Practicg, Costs, X

See

[See also AGREEMENT, VI-—VENDOR AND Pur-
cHASER, [X.—WaIvER, and ‘titles there re-
JSerred to.J

1. A principal, V., agreed to sell part of his
estate to his agent, X.; but, when he made the
agreement, was unaware that that part in-
cluded the only turf-bog on the estate. There
was not any concealment, nor, apparently, any
knowledge by X. of that circumstance. V., by
will, named: X. a trustee for sale. X. accord-
ingly assisted his co-trustees ; and did not insist
on performance of the agreement until after the
lapse of nearly a year from V.’s death, nor until
after the estate had been advertised for sale.
Held, that V.’s ignorance touching the turf-
bog afforded sufficient ground for refusing to
enforce specific performance; and that X.’s
conduct after V.’s death amounted to a virtual
abandonment of the agreement.—Chambers v.
Betty, Beat. Rep. 488. (C.)

2. A party in possession under an elegit must
abandon the proceedings which he has taken
thereunder, before the Court will grant him a
receiver under the Sheriff’s Act.—Malion v.
Fitzgibbon, 1 I. E. R. 6. (C.)

3. Specific performance of an agreement for a
lease will not be decreed in favour of a tenant
who shows by his conduct and representations
that he has abandoned the agreement.—Gar-
rett v. The Harl of Bessborough, 2 I. BE. R.
180; 2 Dr. & Wal. 441. (C.)

4, When counsel at the original hearing aban-
don an objection respecting parties, or proof of
a document, that objection cannot be made on
a rehearing.—Malone v. Geraghty, 3 Dr. &
War. 262 ; 2 Con. & L. 235. (C.)

5. B. and the defts. acted as provisional direc-
tors of a proposed railway. B. did not take
any shares. The defts. took only afew. The
project having been abandoned, the engineer
in England sued for the amount of his bill
against B. the only director residing there. 8B.
gave the defts. notice of the action; paid the

 

T. 1838.

amount, and filed this bill for contribution.
Held, that, the project having been abandoned,
the bill was properly filed for contribution, and
not to wind up the company’s affairs, as if it
had been a partnership.—Lefroy v. Gore, 7 I.
E, R. 228, (€.)

6. A verbal agreement to accept a less rent
than that mentioned in an agreement to grant a
lease, followed by acceptance thereof, is not
per sean abandonment of the former contract,
nor does it operate as a substitution of a new
agreement for a former one, or as the creation
of a new tenancy in which the old tenancy
merged.—Clarke v. Moore, 7 1. E. R. 515; 1
Jon. & L, 723. (C.)

7. Abandonment of a contract is a contract
in itself. Loose conversations, in which the
tenant stated his interest to be different from
what it was under the contract, and a letter
applying to the landlord for a different interest,
Held, not to constitute an abandonment of the
contract.— Moore v. Crofton, 9 I. E. R. 344; 3
Jon. & L, 488. (C.)

8. Answer filed, March 3lst. Exceptions,
taken April 18th, were abandoned. A motion to
continue an injunction obtained before answer
was: Held, too late, on May 24th, not being
within the 14 days after answer, limited by
the 62nd G.O. of 1843. —Jordan v. Gray, 1
I. Jur. 315. (B.)

9. An heir-at-law, who fails in defending an
action brought against him to recover property
which he would have inherited, if no valid dis-
position had been made aliunde, will generally
be entitled to his costs. But if, abandoning
his position as heir-at-law, he defends in
another capacity, he falls within the rule re-
specting ordinary defts.; and the costs abide
the event of the trial.—Pfrench v. F., 21. Jur.
177. (C.)

10. A purchaser served notice on the vendor
that, unless a good title was made within one
week, he would consider the contract at an end,
yet continued the negotiations, and did not ap-
pear to finally abandon the contract until about
a month before the vendor filed his bill for spe-
cific performance. Held, that the purchaser’s
acquiescence in the proceedings taken after the
service of the first notice, prevented his relying

B
2 By and against

on unreasonable delay so as to disentitle the
vendor to maintain his bill—Jrvine v. Deane,
21. Jur. 201. (C.)

1. The respondent is not entitled to be dis-
charged from custody under a ne exeat regno,
because he was made amenable to that writ
by an arrest under a warrant issued on infor-
mations sworn by the petitioner, respecting the
same matters which were in question in the
suit, even though the prosecution instituted in
pursuance of those informations be eventually
abandoned ; if the petitioner appears to have
had, when the arrest was procured, a bond jide
intention to prosecute the criminal proceedings.
aoe v. Birch, 3 I. C. R. 466; 3 1. Jur. 73.
(C.)

2. In April, 1854, A. contracted to let lands
to B. at an occupation rent. The written agree-
ment provided that the lease should be taken
out in three months. 3B. immediately went
into possession of the lands. In May, 1854, B.
tendered to A. a draft lease. A. refused to
execute it. In January, 1856, A. sold the
lands to C., who had notice of the agreement.
In June, 1856, C. tendered to B. a deed of
attornment, which described B. as tenant from
year to year, and which B. refused to execute.
In March, 1857, C. served on B. a notice to
quit. In May, 1857, B. filed this petition.
Held, that the lease had not been abandoned ;
nor had there been any such waiver as disentitled
B. to specific performance of his contract. —
Bronhu v. Connolly, 7 I. C. R, 173; 3 I. Jur.
N.S. 330. (C.A.)

3. A judge of the Landed Estates Court dis-
allowed E.’s claim on the schedule of incum-
brances, and placed M.’s claim before W.’s.
On appeal, E. abandoned all question touching
the validity of M.’s claim, and obtained a
decree, establishing his own claim on_ the
schedule. W., who had appealed as to M.’s
claim, then withdrew his appeal. EE. finding
that, contrary to his expectation, the validity of
M.’s claim would be not disputed in W.’s appeal,
sought to have his original appeal reheard, so
far as it related to the validity of M.’s claim.
Ffeld, that the whole appeal must he reheard.—
Eyre v. M‘Dowell, 5 Ir. Jur. N. 8. 50. (C.A.)

4. Semble, parties executing a deed, under
which nothing has been done, may abandon it.—
Re Fivey, 6 Jur. N. 8. 22. (B.)

5. A mortgagee proved under the arrange-
ment clauses. The case was turned into bank-
ruptcy. Such proof: Held, not an abandon-
ment of his right as mortgagee ; but an estab-
lishment of that right ; the mortgaged property
having been valued, and credit given for its
worth.—Re Wilson, 7 1. Jur. N. 8. 328. (B)

6. An agreement recited that A. desired to
purchase, and B. to sell to A., for £200, half of
a schooner; and that B. had agreed to lend A.
£370, upon its repayment, with interest, being
secured by mortgage of a rentcharge to which
A. was entitled, and of the dividends of a sum
of stock, and by a policy of insurance, and two
houses. It was witnessed: that B. agreed to
dispose of the schooner to A., and to execute
the necessary deed; that the £200 should be
part of the £370; that A. should mortgage the

[ACCOUNT]

 

whom maintainable.

schooner to B, as a further security for the
£370, which sum, with interest, A. was to repay
by annual instalments of £50. If A. neglected
to pay off all or any of the instalments, with
interest, B. was empowered to call in the £370,
or ;whatever part thereof then remained due.
The schooner, proving unseaworthy, was by
mutual consent returned to B. Afterwards A.
assigned the other property specified in the
agreement to C., who had notice of the agree-
ment. Held, that a suit could be maintained
against C. for an account of what remained due
on foot of the £170 (the difference between the
purchase money and the loan), and for a sale,
although the agreement had, guoad theschooner,
been rescinded.

That A. was nota necessary party, but might
be bound by notice, under 32nd G. O. of 1851.

That the return of the schooner to B. was not
to be deemed payment of instalments.—Murphy
v. Moorehead, 16 I. ©. R. 454 (R.)

7. Quere, whether a discharged insolvent can
sue for specific performance of a contract for a
lease, after his assignee has elected to abandon
it?—IM‘Nally v. Gradwell, 16 I. C. BR. 512.
R.)

 

ABATEMENT.
— Of Legacies. See Lecacy.
— Of Suits. See Practice, ABATEMENT AND
REvVIvoR.
—In Price. See VENDOR AND PuRcHASER,
VI.—CoMPENSATION.

ABEYANCE.
ABSCONDING.
— Of Assignee. See BANKRUPTCY, X.
— Of Trustee. See TRUSTEE.
— To avoid Service. See PRAcTICE—SERVICE
SUBsTITUTED.

ACCEPTANCE.
— Or Rejection of Lease by Assignee.
Bankruptcy, XI.
— Of Executorship. See Executor, III.

See

— Of Trust. See Trustee, II.
— Of Title. See VENDOR AND PURCHASER,

1V. anv VIII.

 

ACCESS.—See HusBanD AND WIFE.

 

ACCIDENT.—See AnnviTy—MIsTake—
Practice, OFFICERS OF CouRT.

 

ACCOUNT.

— Of Agents. See PRINCIPAL AND AGENT, IV.

— Of Assignees in Bankruptcy. See Banx-
RUPTCY, X.

— Of Executors and Administrators. See ExE-
curors, VI.

— Of Guardians, See GUARDIAN AND WARD,
III.

— Of Receivers. See Pr. RECEIVER.

— Of Trustees. See TrustEexs, VII.

— Of Wifes separate Estate or Income.
HUsBAND AND WIFE.

— Between Mortgagor and Mortyagee. See
Morreacx, II.

See
In what Cases

— Between Landlord and Tenant. See Lanv-
LORD AND Tznant, IIT.
— Decree for. See PR. DECREE.
— Costs, in Case of. See Pr. Costs.
[See also, ImpRovemMenTs—LENGTH OF

Time, III. Pl. Plea.)

I. In wHat CASES DECREED TO BE TAKEN,
AND BY AND AGAINST WHOM.
II. SerrLep AND SraTED.
1. How settled Account is constituted.

2. Between whom, and on whom,
binding.
3. When reopened.
4, How used as a Defence by Plea.
5. How to be stated in the Petition.
III. How FAR BACK, AND TO WHAT EXTENT.
IV. AtLowances, &., TO AND AGAINST
PARTIES.
V. How BARRED.
VI. Mrrcuants.
VII. Pus.ic.
VIII. Pracricz.

1. How taken generally.
2. In Master's Office.
3. When taken with Annual Rests.

 

J. In wHaT CASES DECREED TO BE TAKEN AND
BY AND AGAINST WHOM.

1. In 1618, the Irish Society granted lands to
the Fishmongers’ Company, reserving the timber.
By deed of 1741, the society declared that they
would not claim trees thereafter planted ; but
that the company might cut them, so as they
should be first applied in improving the estate.
In 1747, the company demised to a lessee, ex-
cepting the trees, with liberty to themselves to
cut them to improve their estates, according to
their interest; but not for sale, granting estovers
to the tenant, who covenanted to use, on the
estate, the trees cut, and not for sale. Held,
that neither the nature of their title, nor the
Timber Acts, were an objection to a suit by the
company for an account against their tenant
and injunction.

A bill by a landlord, for an account of waste
committed by a tenant in cutting timber, lies
against his executors.

The waste having been committed during
fifty years of the tenant's life, the bill was
not filed until a few years after his death. The
account was refused touching all the waste done
jn the tenant’s lifetime; but was granted with
an injunction touching waste committed by the
executors. — The Fishmongers’ Co. v. Beresford,
Beat. Rep. 607. (C.)

2, A creditor of a banking company, formed
under the 6 Geo. [V. c. 42, after the company
had stopped payment, filed a bill on behalf of
himself and all other creditors who should come
in and contribute to the expenses of the suit,
against one of the public officers as sole deft.
The bill prayed that, in pursuance of the 33
Geo. ILL. c. 14, the demand of the ptf. and the
other creditors might be paid out of the per-
sonal estate of the society, and if that should
prove insufficient. then-that they might be paid

[ACCOUNT.]

 

decreed tu be tuken. 3

by the society ; and for an account of the per-
sonal estate of the copartnership. Held, that
the ptf. was entitled to the relief prayed.

Fawcett v. Hodges, Flan. & K. 100; 3 I. E.

R. 232, (R.) Overruled :—O’ Flaherty v.
M‘Dowell, 21. Jur. N. 8. 469; H. L. 6 H. Lds.
Cas. 142.

3. A bill prayed an account on foot of two bills
of exchange accepted by L., deceased, and due
and unpaid at the time of his death ; and of the
costs and expenses incurred by the ptf. as ad-
ministrator of L., down to the time when the
grant of administration was revoked ; and that
the amount of the bills due to the ptf. as a
creditor of L., and of the ptf.’s expenses as ad-
ninistrator might be paid out of L.’s personal
estate. The expenses, &c., consisted nearly
altogether of the ptf.’s costs in a cause, insti-
tuted by him as admiaistrator in 1838, for dis-
covery of assets ; which, after issue joined and
publication passed, was frustrated by the pre-
sent defts., who were also the defts. in that
cause, and who being L.’s next of kin, and
in possession of his assets, for the purpose of
avoiding a decree, lodged in the Prerogative
Court the will of L., which they had previously
suppressed, and procured a revocation of the
grant of administration to the ptf., and a new
grant to themselves, cum testo. annexo. They
now pleaded the statute of limitations as to the
bills of exchange; and demurred generally to
so much of the bill as sought an account, &ec.,
of the ptf.’s costs and expenses as administrator.

Held, that the demurrer should be overruled ;
as the costs claimed by the ptf. were incurred
by him, not merely in his private right as a
party in another cause, but in his official
character of administrator ; and as the grant
of administration to him, though voidable was
not void, and conferred on him during its con-
tinuance the rights and privileges of a lawful
administrator, he was entitled to be paid out
of the personal estate of deceased expenses
properly incurred in the duties of the office.

Held, that as the demurrer was overruled,
the ptf. was entitled to the costs of the hearing.
—AHowlett v. Lambert, 21. E. R. 254. (R.)

4, A bill of revivor against the executor of a
deceased party prayed that he should either
admit assets or for an account. The executor
admitted assets sufficient to answer the ptf.’s
demand, if any, he being advised that the ptf.
had not any demand against the assets. Held,
not a sufficient admission of assets, and that an
account should be directed. —M'‘ Tiernan v. Bell,
31. E. BR. 193. (E. E.)

5. Accounts taken in a foreclosure suit in
which the tenant for life of the equity of re-
demption is a party, and present at the taking
thereof, will be binding generally upon the
tenant in tail. But he will be at liberty to
surcharge and falsify.

But when the tenant for life of the equity of
redemption, although a party, was not actually
present at the taking of the accounts; and all
the decrees in the suit were had upon sequestra-
tion, and some degree of imputation was thrown
upon the manner in which the accounts were
taken; Held, that the claimant in remainder

°
4 By and against

was entitled to open them generally.— Wrixon
v. Vize,2 Dr. & War. 192; J Con. & L. 298;
41. E. R. 463. (C.)

1. In 1822 a bill was filed by tenant in tail to
set aside a purchase, made in 1808, by the
deft.’s testator, as fraudulent and void as against
the ptf. ; and for an account of mesne rates.
In 1823 the deft. answered. No further pro-
ceedings were had until 1839, when the present
bill (of revivor and supplement) was filed. Held,
that the ptf. was entitled to an account from
the time of filing this bill of revivor ; and that
interest on moneys for which the deft. was de-
clared entitled to credit, should be computed
from the same period only.— Thornhill v. Glover,
3 Dr. & War. 195. (C.)

2. Alease, granted in 1830, by trustees to one
of themselves at a gross undervalue, was decreed
at the suit of c. q. trusts, to be surrendered.
An account of the profits of the lands was
directed from 1830.—A ttorney-General v. Cor-
poration of Cashel, 3 Dr. & War. 294; 2 Con.
& L. 1. (C.)

3. A bill prayed accounts, and an injunction
to restrain the deft. from proceeding in an eject-
ment, on the ground that one life in the lease
still existed.

Semble, the court could not make such a
decree without a previous inquiry as to the
existence of the alleged subsisting life.— O’ Don-
nell v. Nolan, 4 Dr. & War. 153. (C.)

4. An account of rent and mesne rates, de-
creed under circumstances of complexity of title,
occasioned by the acts of a tenant, and in order
to avoid a multiplicity of suits, the bill also
seeking that a deed should be delivered up to be
cancelled.—Nixon v. Robinson, 7 I. E. R.520:
2 Jon. & L. 4 (C.)

5. V. devised his freehold lands to his wife
and children equally, and appointed her his trus-
tee. Under her marriage settlement the wife was
entitled to £500, charged on the land, and pay-
able on the death of V. She entered into receipt
of the rents as devisee and trustee of the will.
Held, as against a subsequent judgment creditor,
with whose consent she had entered, that she
was chargeable only with such parts of the rents
as she had received and applied to her own use,
Boyd v. Murdock, 2 Jou. & L. 203. (C).

6. A., on behalf of herself and her infant
children, filed a bill against B., who had been
tenant in common with her husband, C., alleging
that on his death B. had entered into receipt of
the entire rents, claiming the whole, and had
kept the title deeds, for want of which ptf.
could not proceed at law, and praying that they
might be put in possession of C.’s moiety, and
an account of the rents of it since his death.
Held, that though a bill could not be sustained
for an account between tenants in common, yet
that the infant ptis. were entitled to such an
account against the deft., and that it was not
a misjoinder to make the mother a party—
M‘Carthy v. Hatch, 9 I. E. R., 206, R. [But
see below Montgomery v. Swan, 91. C. R. 131;
Dr. Rep. temp. Nap. 520, 41. Jur. N.S. 213. (C.)]

7. The execution of a lost mortgage deed was
admitted in the answer to a foreclosure bill ;

[ACCOUNT.]

 

whom maintainable.

bnt the deft. swore there was an indorsement
of certain payments on it. The memorial exe-
cuted by the mortgagor, and a counterpart in
his possession, were offered in evidence ; but a
sufficient search for the original was not proved.
Held, that a decree to account should be granted,
with an inquiry as to the original deed, and
the indorsement on it.—Coulson v. Williams, 9
I.E. R. 287. (C.)

8. The trustees of a chapel, not endowed
within the 11 & 12 G. 3, ¢. 16, applied collec-
tions, according to the trusts of their deed, for
some years without the interference of the rector,
who at last, along with the churchwardens, filed
a bill for an account of the sums received by the
trustees, and for an injunction to restrain them
from applying the collections. Pending the suit
the rector proceeded before the archbishop,
and had the chaplain’s license withdrawn. The
court, although of opinion that the collections
belonged to the ptfs. for the benefit of the poor
of the parish, refused an account, because the
trustees had acted according to their trusts ; and
refused the injunction, as the ptf. had rendered
it unnecessary by his proceeding before the
archbishop. Such a suit should be by informa-
tion and not by bill. —Magee v. Bishop of Cashel,
91. E. R. 319. (C.)

9. The deft., brother of the ptfs., for thirteen
years maintained them, and received the rents
of their freehold, which were very small. The
plis. were refused an account of the rents during
that time.—Dooner v. D., 1 I. Jur. 209. (C.)
(See 12 I. E. R. 580.]

10, In asuit against a trustee of a church lease,
who had expended considerable sums in ob-
taining renewals and a perpetuity grant, and
had arranged to buy the lands in consideration
of an annuity to the c. q. ¢., under an award, in
obtaining which there had been some conceal-
ment, and which had not ever been completed,
though it had been acted on for fourteen years.
Held, that the new interest was a graft; and
that the trustee was bound to account for the
entire period.—Lovatt v. Knipe, 12 I. E. R.
124. (C.)

11. A suit is sustainable for an account, on foot
ot a sequestration over a benefice in the diocese,
against the personal representatives of two suc-
cessive bishops and the present bishop, on the
allegation of loss to the creditor by the default
of the sequestrator, during their respective
bishoprics.—Hogg v. Garrett, 12 I. BE. R. 559,
(£. E.)

12. Under a decree pronounced in 1817, in a suit
by the grantee of an annuity charged upon lands
against the grantor’s judgment creditors, who
were in possession, by virtue of writs of elegit,
an account was taken of what was due to the
grantee, and a receiver was appointed over the
Jands. The grantor was not a party to the suit,
and died in 1842, without having impeached the
accuracy of the account. The grantee having
also died, his executor, in 1848 (up to which time
the receiver had continued in possession), filed a
bill against the co-heiresses of the grantor, pray-
ing a revivor of the former suit, an account of
what was due for arrears of the annuity, and
that the sum found due should be declared a
charge upon the lands. The defts. insisted that
In what Cases

the account taken in the former suit in the ab-
sence of the grantor was not binding upon them.
Held, that in consequence of his acquiescence
during twenty-five years, and their subsequent
acquiescence for six years, they were not entitled
to have the account taken de novo ; but that they
should be at liberty to surcharge and falsify
it. —L’ Estrange v. White, 11. C. RB. 15. (C.)

1. B., A.’s wife, claimed lands as devisee under
a will, which was declared void by the decree
in a suitinstituted by the testator’s heir against
A. and B. ‘he decree directed the master to
take an account of all sums received by A. and
B., or either of them, on account of the lands ;
and ordered them to pay whatever sum he
should find to be due. A. died. The suit was
revived against his personal representative. The
master reported then a sum as having been re-
ceived by A.and B. Held, that B. was perso-
nally responsible for the entire, and that the
decree might be enforced against her.— Rossbo-
rough v. Boyse, 3 I. C. R. 629 (C.); revg.
decision, 3 I. C. R. 540 (R.); orders and decree
revd., 6 H. Lds. Cas. 2.

2. A petition by the executor of a deceased
partner, praying an account of the partnership
transactions, isa petition ‘‘ with respect to the
taking of partnership accounts,” within the Ch.
ee Act, s. 15.—-Owens v. Oliver, 6 Ir. Jur. 349.

én )

3. When one co-tenant receives more than his

Share of the rents of a property, the other co-te-
nant can compel an account and payment by suit
in equity. — Montgomery v. Swan, 91. C. R. 131;
Dr. Rep., temp. Napier, 520; 4 Ir. Jur. N.S.
213. (C.)

4, A. entitled to a life estate in lands, with
remainder to his wife B. for life; C. entitled to
an annuity ; and D. having a judgment against
A., and a policy of insurance, in consideration
of £350 advanced to A., mortgaged to E. the
lands, annuity, and policy of insurance respec-
tively. A., B., and C., by the deed, appointed
F. irrevocably their attorney, to receive the
rents and the annuity, for the purpose of paying
receiver's fees and outgoings, and the interest
and premiums of the policy, and for other pur-
poses therein specified. Thedeed provided that
F. should not act as receiver until the interest
or the premium on the policy should be in arrear.
F. entered into receipt of the rents (as he al-
leged, under a subsequent power of attorney
from A.) and of the annuity, but did not apply
them to the specified purposes. He applied the
rents to A.’s purposes, and, by his directions, to
pay the interest of a mortgage due to himself,
F.; and, with C.’s consent, applied the annuity
to pay the interest on the £350. C., before con-
senting, had taken the benefit of the Insolvent
Act. Held, that F., as agent of C. as to the
annuity, was liable to account with her assignee.
That F. was not agent or trustee for C. as to the
lands, and therefore was not bound to account
to her assignee for bygone rents.

Semble, B., being only a surety, her life
estate is not liable, after the death of A., to re-
pay the sums paid out of the annuity of C. for
interest aud premiums on the policy.

Quere, should F. have credit for payments
made out of the annuity, contrary to the direc-

[ACCOUNT]

decreed to be taken. 5

tions of the mortgage deed, but with the con-
sent of C., after her discharge as an insolvent. —
MDowell v. Reede, 14 1. C. R. 190. (R.)

[The master having reported—Held, that F.
was not bound to pay the assignees the sums re-
ceived by him after the insolvency.—M ‘Dowell
v. Reede, 161. C. R. 430. (R.)]

5. An agreement recited that A. desired to pur-
chase, and that B. desired to sell to A., for £200,
one-half of a schooner, and that B. had agreed
to lend A. £370 upon its repayment, with inte-
rest, being secured by mortgage of arentcharge
to which A. was entitled, and of the dividends
of a sum of stock, and by a policy of insurance
and two houses. It was witnessed that B.
agreed to dispose of the schooner to A., and to
execute the necessary deed; that the £200
should be part of the £370; that A. should
mortgage the schooner to B., as a further secu-
rity for the £370, which sum, with interest.
A. was to repay by annual instalments of £50.
If A. neglected to pay off all or any of the in-
stalments, with interest, B. was empowered to
call in the £370, or whatever part thereof then
remained due. The schvoner proving unsea-
worthy, was by mutual consent returned to B.
Afterwards A. assigned the other property spe-
cified in the agreement to C., who had notice of
the agreement. Held, that a suit could be
maintained against C. for an account of what
remained due on foot of the £170 (the difference
between the purchase money and the loan), and.
for a sale, although the agreement had, quoad
the schooner, been rescinded. That A. was not
a necessary party, but might be bound by notice
under the 32nd G. O. of 1851. That the return
of the schooner to B. was nut to be deemed
payment of instalments.—Murphy v. Moore-
head, 16 I. C. R. 454. (R.)

 

If. Account StaTED AND SETTLED.

1. How settled Account is constituted.
2. Between and on whom binding.

3. When re-opened,

4. How used as a Defence by Plea.
5. How to be stated in the Petition.

Il. 1. How settled Account is constituted.

6. An account was decreed against an executor
after nine years, nutwithstanding an account
totted by a mutual friend of the ptfs. and deft. ,
and admitted by the ptfs. in 1833, but not then
examined by them, or vouched by the deft.

Such account is inoperative against minors
claiming under the testator’s will.— Purcell v.
Cole, Long. & T, 449. (E.E.)

7. When a stated and settled account is set up
by the answer, but not proved at the hearing,
the proper decree is to inquire whether such
account exists ; and, if it does, to give the deft.
the benefit thereof, letting the plf. have liberty
to surcharge and falsify. — Fitzpatrick v. Mahony,
lJon. & L. 84. (C.)

8. No precise form is necessary to constitute
a stated and settled partnership account.

 
6 Stated

One partner, A., eight years after dissolution
of the partnership, drew up an account stating
the firm’s assets at the time of the dissolution ;
taking the excess of the assets over the original
capital as the balance of profit over loss; stating
the amount drawn out by each partner, and the
amount coming to each; giving credit for pay-
ments made to A. by his co-partner B. after the
dissolution ; and striking a balance against him-
self. This account was assented to by B.
Held, a stated and settled account, though some
debts due to the partnership were omitted as
uncertain.

A party seeking to impeach, or surcharge and
falsify a stated and settled account, must state,
in the petition, the fraud or error on which he
relies.

If a partnership be admitted, the books are
admissible in evidence in taking the account
of the partnership transactions ; but A.’s books
are not admissible against B. to prove a partner-
ship, which is denied.—Sim v. S., 11 I. C. R.
310. (R.)

IL. 2. Between and on whom binding.

1. After a lapse of nine years an account was
decreed against an executor, notwithstanding
an account totted by a mutual friend of the
plfs. and the deft., admitted in 1823 by the
ptfs., but not then examined by them, or
vouched by the deft.

Such an account is inoperative as against
minors claiming under the testator’s will.—
Purcell v. Cole, Long. & T. 449. (E. E.)

2. When the relation of solicitor and client
exists between the parties to a settled account, a
general allegation of errors is sufficient to entitle
the client to open it.—Lavwless v. Mansfield, 1
Dr. & War. 557; 4 I. E. R. 113. (C.)

3 A suit, in which there has been a decree to

account, may be revived at any time within

. twenty years after the last step taken in the
original cause, if there has not been such a va-
riation of rights as to work an injury.

A settlement, pencdente lite, though after a de-
cree to account, and an abatement of the suit,
will not prevent the revivor.—Higgins v. Shaw,
2 Dr. & War. 356; 1 Con. & L. 400. (C )

4. Anadministrator had acted as his own soli-
citor in collecting the assets. Held, that that
should be taken into consideration, soas to letin
the principle of Lewis v. Morgan, 5 Price, 42,
and Lawless v. Mansfield, 4 I. E. R. 113; 1 Dr.
& War. 556 ; respecting the assigning of errors
in bills to open accounts, particularly as a state-
ment in the answer did not correspond with the
account.—Holland v. H., 61. E. R. 407. (C.)

5. Cameron & Co., merchants in the West In-
dies, opened an account with the plfs., mer-
chants in London. The course of business was,
that the plfs. sent to Cameron & Co. half-yearly
accounts of the dealings between them. ‘These,
if correct, were approved by Cameron & Co.;
the balance was carried forward to the next
half-yearly account.

Cameron & Co. dissolved partnership. Two
of the partners, of whom D. C. Cameron, was

[ACCOUNT.]

 

and Settled.

one, agreed to indemnify the retiring partners
against all liabilities of the firm in respect of
shipments made by the plfs.; and it was agreed
that D. C. Cameron should have the winding-
up of the concern, the closing of the books, and
collection of the debts. He was authorized to
receive and pay the debts of the firm.

After dissolution of the partnership, and the
death of one of the retiring partners, the plfs.,
in the usual course of business, furnished ac-

‘counts to Cameron and Oo. of the dealings

between them up to the time when the plfs.
had notice of the dissolution. D. C. Cameron,
as representing the firm, certified that these ac-
counts were correct. Held, that they bound
the executors of the deceased partner, as stated
and settled accounts.

Semble, an authority to a member of a dis-
solved partnership to wind up the concern,
close the books, and collect the debts, autho-
rizes the party to state and settle an account.—
Luckie v. Forsythe, 3 Jon. & L. 388. (C.)

6. In and previously to 1853, J. was indebted
to 8. by simple contract ; was possessed of con-
siderable farming stock and household furniture;
of a judgment for £2,500; and of leaseholds;
and was also seised of a freehold interest in D.
The leaseholds and freeholds were subject to a
charge in favour of H. J. being indebted to M.
in January, 1853, assigned to her his farming
stock at a valuation, in part payment of the
debt. By deed of May, 1853, he conveyed to
her his interest in D. for £600 ; and by another
deed assigned the judgment. By deed of June,
1853, he mortgaged the leaseholds and household
furniture to M., to secure £3,200. This mort-
gage, redeemable in June, 1856, provided that
M. should not, when in possession of the lands,
be charged with a greater sum than £150 per
annum ; and that if J. died before the period of
redemption, without paying off the sum due,
the right to redeem should be at an end. By
deed of January, 1854, J., in consideration of
the charge in favour of H., conveyed his equity
of redemption to a trustee for her, without pre-
judice to the charge. S. obtained a judgment
against J. on foot of his demand, in April, 1854;
registered an aitidavit of ownership against J.;
and then filed a petition charging that those
deeds were executed with intent to defeat and
delay creditors ; that the property of J., if duly
applied, was sufficient to pay the claims of M.
and H., and also the petitioner’s debt; and
that the whole sum of £3,200 was not due to M.
The petition prayed that the assignments and
conveyance might only stand as a security for
so much as was actually due to M., and re-
demption of the mortgage.

M. relied on au account settled by J. at the
date of the mortgage, and on the conveyance of
D. as an absolute sale for the sum of £600.

Affidavits in reply, filed by the petitioner,
alleged that D. was worth more than £3,000.

Held, that the petitioner was not, as claiming
under J., bound by the accounts settled by him ;
but that not having impeached them by his pe-
tition, they were to be treated as binding on
him.

Heid, that the payment of the £600 did not,
as against a creditor, conclusively support the
Stated

conveyance as a purchase for a valuable consi-
deration.

Held, that the prayer for redemption in a
petition filed before the period for redemption
arrived, could not be sustained.—Staunton v.
Donohoe, 41. C. R. 554. (C.) ; 7 Ir. Jur. 37.

1. V. bequeathed to’ A. £250, chargeable on
lands, and payable by instalments of £20 per
annum from the day of her marriage with con-
sent, but not until then; and directed that
A., if she married without such consent, should
be entitled to 1s. Power was given A. or her
lawful husband, to distrain in case of nonpay-
ment of said sum of £20. V. desired that each
instalment of £20 should be paid to A. or her
lawful husband, by two lawful payments of
£10 each, until the £250 was paid to her or her
assigns ; and further desired that his two sons,
B. and C. (to whom he devised the lands),
should contribute, jointly and severally, to
support and clothe A. in a reasonable manner,
and that upon their doing so, no interest should
arise upon the £250; but thatif they neglected
such support and clothing, the £250 should be
liable to interest at the rate of £6 per cent: per
annum, until A.’s marriage, but by no means
after. The lands were devised to B. and C.,
and, if either died without issue, to the sur-
vivor. C. and A.’s husband settled an account
as to the moiety of the £250; a bond was given
for the balance, which C. paid. 3B. died after-
wards, without issue, and without having paid
his moiety of the £250, but having by will dis-
posed of his share of the lands under an impres-
sion that he had a right to do so.

Semble, the settled account did not preclude
the recovery of the unpaid moiety of the £250
against C., who, on B.’s death, became entitled
to B.’s moiety of the lands.—Uppington v.
Tarrant, 121, C. R. 262, (R.)

IL 3. When re-opened.

2. An account was decreed against an execu-
tor after nine years, notwithstanding an account
totted by a mutual friend of the ptfs. and deft.,
and admitted by the ptfs. in 1833, but not then
examined by them, or vouched by the deft.
Such account is inoperative against minors
claiming under the testator’s will.—Purcell v.
Cole, L. & Towns. 449. (E.)

3. Semble, when a bill seeks to open a settled
account, some specific error must be pointed
out to entitle the party to do so, even though
the transactions on which the account had been
settled were impeached, and required subse-
quent circumstances to confirm them,—De
Montmorency v. Devereux, 1 Dr. & Wal. 119.
(C.); Affd, 2 Dr. & Wal. 410; 7 Cl. & F. 188;
West, 64. ‘

4. On a bill filed by client V. against solicitor
C., to set aside a bond and judgment for the
amount of an account stated and settled
between them after V. had attained age, C.
having also acted as agent and manager of V.’s
estate during V.’s unnority. Held, that the
court would not open the account on the,alle-
gatious that the greater portions of it corfsisted
of charges for costs and other items for which
V. was not properly liable: that the costs had

[ACCOUNT.]

 

and Settled. 1

not been taxed: and that the account omitted
credits to a large amount to which V. after-
wards discovered that he was entitled.

Held, that, after a decretal order dismissing
the bill as to opening the account stated and
settled, and directing an account of subsequent
dealings only ; the court would not, on further
directions, go into an item overcharged and
suppressed in the account stated and settled, no
sufficient ground for doing so having been
shown at the original hearing. — D'Arcy v.
Burke, 21. E. R. 1. (C.)

5. Plaintiffs seeking to have accounts opened
must specify particular errors. This is the law
of the court, in order to give the defendant
information, and to put an issue before the
court.

Where there is a series of accounts which are
all connected, an error in the last will be a
ground for opening all.

Semble, that the court will not open an
account for a very inconsiderable sum, unless
fraud be shown.

Uf plaintiff shows one error in an account, he
has a right to surcharge and falsify the whole
of that account: if he shows one piece of fraud,
he can set aside the account altogether.—Zarl
of Lucan v. O'Malley, 2 Con, & L. 181, 183. (C.)

6. The general rule is, that to open a settled
account, particular’ errors must be specified ;
but when the relation of solicitor and client
exists between the parties, a general allegation
of errors is sufficient.—Lawless v. Mansfield, 1
Dr. & War. 557; 41. B. R. 113. (C.)

7. An error in a part of a stated and settled
account was patent on the face of it. Held,
that the account might be opened as to that
part, although the error was not specifically

| stated in the bill; but relief was refused as to

the other parts of the same account, as the
error was not fully shown on the face of it, nor
stated in the bill.

The rule of the court respecting the opening
of an account requires errors to be charged in
the bill, as well as proved at the hearing,—
Holland v. H., 61. E. R, 407; Dr. Rep. ¢. Sug.
391. (C.)

8. Liberty given a client, V., to surcharge
accounts settled between him and his solicitor
X., 16 years before (though securities for the
balances had been given), ‘and to have the costs
taxed, the relation of solicitor and client
having continued up to a short period before
the filing of the bill; and V. having been inops
concilii when he settled the account, though X.
had sent it to V. with a letter desiring him to
examine it attentively before signing it ; but it
having been settled on the basis of liability in,
not gift by, V.,and containing items for costs due
by, and advances made to third persons, which
V. was not liable to, and against which it was
Xs duty _to have protected V.—Jones v.
Moffett, 3 Jon. & L. 636. (C.)

9. A bill was filed, after March, 1843. By a
supplemental bill judgment creditors were
made notice parties. A decree allowed them
to surcharge and falsify the account taken in
8 How fur back decreed,

the original cause; and in default that they
should be bound by the proceedings.— Williams
v. Walker, 1 I. Jur. 331. (R.)

1. A bankrupt stated and settled with his part-
ner an account which the Court of Ch. decreed
ought not to be re-opened. This court refused
to sanction the continuance, by the bankrupt
or his assignees, of litigation by way of appeal.
with a view to go behind that decision, since
there could not be shown, on the face of the
account, manifest error undiscovered during the
Ch, proceedings; nor that substantial benefit
would result to the creditors. The Master in
Ch. having thought that the account should be
re-opened : Held, that the bankrupt was not,
by filing a petition for an account, guilty of
wanton litigation.— Re Sim, 7 I. Jur. N. 8.
282. (R.)

II. 4, How used as a Defence by Plea.

Il. 5. How to be stated in the Petition.

2. After a decree for an account of subsequent
dealings only, the court will not on further
directions go into an item overcharged in a pre-
vious settled account, when no sufficient ground
for doing so has been shown at the original
hearing. —D’ Arcy v. Burke, 21. E. R. 1. (C.)

3. If the relation of solicitor and client exists,
a general allegation of errors in the settled ac-
count is sufficient to cause it to be opened.—
Lawless v. Mansfield, 41. E. R. 113; 1 Dr. &
War. 557. (C.)

4. When it is sought to open settled accounts,
at least one particular error in the account must
be specified in the bill—Harl of Lucan v.
O'Malley, 2 Con. & L. 181, 183. (C.) [See
De Montmorency v. Devereux, 1 Dr. & Wal.
119; Affd. 2 Dr. & Wal. 410; 7 CL & F. 188;
West, 64.]

5. When an administrator acts as his own soli-
citor in collecting assets, how far it is necessary
for the petitioner to allege particular errors in
the account : not necessary if the error is patent
on the face of it. —Holland v. H.61. E.R.
407. (C.)

6. Although settled accounts may not be bind-
ing on a person, yet if not impeached in his
petition they will be held binding on him.—
Staunton v. Donohoe, 41. C. R. 554, 71. Jur.
87. (C.)

7 The decree in a suit against a land-agent
will not direct an account of what he might,
without wilful default, have received, unless a
special case be made by the petition, and
proved. —Brooke v. Hiliott, 61. C. R. 310; 2 I.
Jur. N. 8. 362. (R.)

8 A party seeking to impeach or to surcharge
and falsify a stated and settled account, must
state in the petition the fraud or error on which
he relies. —Sim v. S. 11 I. C. R. 310. (B.)

9. Generai allegations of wilful neglect, sup-
ported by specific evidence of neglect in par-
ticular cases, are not sufficient to entitle the
petitioner to a decree as for wilful default,—
Bond vy. M‘Watty, 18 1. C. R. 174; 71, Jur.
N.S. 315. (C.)

[ACCOUNT]

 

 

and to what Extent.

10. The rule requiring the instances of wilful
default to be specitied in the petition, is not satis-
fied by a reference in the petition to accounts
furnished by the agent which show remission
of rents by him, though there be evidence
establishing that the remission was wrongful. —
Pennefather v. Bolton, 14 I. C. R. 335; 8 1. Jur.
N. 8. 221. (C. A.); varying the Rolls’ Order,
141. C, R. 234; 81. Jur. N.S. 45.

III. How rar Back DECREED AND TO WHAT
EXTENT.

11. An account against a land-agent for 27
years preceding the filing of the bill, decreed ;
but refused, respecting gratuities which he had,
with his principal’s knowledge, received from
the tenants, though it was charged that the
gratuities were extortionate ; the principal not
having lost by their exorbitant nature, except
so far as they had been taken as fines.— Palmer
v. Browne, Beat. Rep. 540. (C.)

12. A bill by a landlord for an account of waste
committed by » tenant in cutting timber, lies
against his executors ; but when the waste had
been committed during 50 years of the tenant’s
life, and the bill was not filed uutil a few years
after his death, the account was refused, touching
all waste done in the tenant’s lifetime, but was
granted with an injunction, touching waste
committed by the executors.— The Fishmongers’
Co. v. Beresford, Beat, Rep. 607. (C.)

13. After a lapse of nine years, an account was -
directed against a trustee, owing to the special
circumstances of the case. He was, however,
permitted to vouch, by his own affidavit, items
of a greater amount than forty shillings.—
Purcell v. Cole, Long. & T. 454. (EH. E.)

14, Bill for specific performance of an agree-
ment for a lease for 21 years, and for an account.
The deft. held the lands for one life. The
agreement was executed by the deft.’s agent,
possession given under it, and money expended
in improvements; but the deft. swore that her
agent had no authority from her to act so.
There was evidence that she subsequently recog-
nized the agreement, and promised to execute
a lease pursuant thereto. A civil bill ejectment
was served upon:the ptf., and another upon two
of his undertenants. The former was dismissed ;
but the latter being undefended, a decree was
obtained, under which he was turned out of
possession. Three years afterwards this bill
was filed. Pending the suit, the c. q. vie in the
deft.’s lease died. Held, that the ptf. was en-
titled to an account of the rents and profits of
those lands which the deft. had received, or,
without wilful default, might have received,
from the day of the execution of the civil bill
decree, up to the day of the death of thee. q.
vie.—Callaghan v. Pepper, 2 [. E. R. 399.
(E. E.)

15. In a suit for an account of an intestate’s
personal estate, the bill sought to charge the ad-
ministrator with wilful default, and contained
charges to that effect. The decree directed only
the ordinary accounts. Held, that the court
would, nevertheless, direct an inquiry, respect-
Allowances to and

ing wilful default, if there appeared on the
master’s report facts to warrant the inquiry. —
Cuff v. C., 31. E. R. 469. (C.)

1. Inasuit by a judgment creditor to redeem
an elegit creditor in possession, the latter is
bound to account only for the rents which he
has in fact received, and not for those which,
without wilful default, he might have received ;
but from the filing of the bill he must account
for what rents he might, without wilful default,
have received.—M‘Donnell v. Walshe, 2 Dr. &
War. 252; 1 Con. & L. 389. (C.)

2. When an elegit creditor is in possession, if
a suit is instituted against him by the debtor, an
account of what might, without wilful default,
have been received, will be directed. —O’ Brien
v. Mahon, 1 Con. & L. 390, note ; 2 Dr. & War.
306. (C.)

3. In 1822 a bill was filed by tenant in tail to
have a purchase made in 1808 by the deft.’s
testator set aside as fraudulent and void as
against the ptf.; and for an account of mesne
rates. In 1823 the deft. answered. No fur-
ther proceedings were had until 1839, when
this bill of revivor and supplement was filed.
Held, that the ptf. was entitled to an account
from the time of filing this bill, and that in-
terest on certain sums of money, for which
the deft. was declared entitled to credit, was
to be computed from the same period only.—
Thornhill v. Glover, 3 Dr. & War. 195. (C.)

4 A lease granted in 1830 by trustees to one of
themselves at a gross undervalue, was decreed,
at the suit of c. g. trusts, to be surrendered.
An account of the profits of the lands was di-
rected from 1830.—Att.-Gen. v. Corporation of
Cashel, 3 Dr. & War. 294; 2 Con. & L. 1. (C.)

5. The general rule appears to be, that when a
party has slept for a long time on his rights, an
account of rents and profits, &c., if he be enti-
tled to one, will be directed only from the filing
of the bill.—Mulhallen v. Marum, 3 Dr. &
War. 336. (C.)

6. J., being seised in fee of T. and L. and for
life of K., of which W. was tenant in tail, J.
and W. conveyed all these estates upon trust
(inter alia) to pay D. past and future advances
to J. and W., or either of them, and, atter pay-
ing incumbrances, to pay to J. such annuity as
D. should appoint. F., a simple contract creditor
of J., fully acquainted with this deed, entered
into a treaty to procure a loan for J. from an in-
sirance company to pay off D., after which he
was to get a second mortgage for his own de-
mand. He afterwards obtained a judgment, and
tiled this bill to impeach the deed. Sales to a
large amount were had under the deed; W.
settled his remainder in fee (which settlement
was also impeached), and on several other occa-
sions for nearly twenty years the deed had
been acted on. Held, that F., by his own acts,
had precluded himself from objecting to the
deed, even if it was impeachable; and that the
deed, having been acted on so long, could not be
now disturbed.

Held, that whatever rights J. took under the
deed were subject to the ptf.’s judgment ; and
as D. had made no appvintment of J.’s annuity,

[ACCOUNT. ]

 

 

 

against Parties. 9

an account was directed to ascertain what al-
lowance had been made to J. under it.

But, Held, that F.’s right attached only from
the time he had applied for a receiver on foot of
his judgment, and that the account should be
limited to that time.

F.’s judgment was impeached in the answer
of J. as fraudulently obtained, and his account
as usurious and improper. Held, that this case
could not be made by answer, but liberty was
given to file a cross-bill.—dfyers v. Duke of
Leinster, 71. £. R. 146. (C.)

7. In asuit against a trustee of a church lease,
who had expended considerable sums in ob-
taining renewals and a perpetuity grant, and
arranged to purchase the lands, in consideration
of an annuity to the c.g. t., under an award,
in obtaining which there was some concealment,
and which was never completed, though acted
on for fourteen years. Held, that the new in-
terest was a graft, and that the trustee was
bound to account for the entire period.—Lovatt
v. Knipe, 121. E. R. 124. (C.)

8. The decree, in a suit against a land-agent,
will not direct an account of what he might,
without wilful default, have received, unless a
special case be made by the petition, and proved.
—Brooke v. Liliott, 6 1. C. R. 310; 2 Ir. Jur.
N. 8. 362. (R.)

9. General allegations of wilful neglect, though
supported by specific evidence of veglect in par-
ticular cases, are not, in a petition against a
land-agent, sufficient to entitle the petitioner to
an inquiry touching wilful neglect.—Bond v.
M‘Watty, 131. C. R. 174; 7 Ir. Jur. N.S.
315. (C.)

10. To justify the court in decreeing an account
for wilful default against a land-agent, some in-
stance of wilful default must be specitied in the
petition, and proved at the hearing. That rule
is not satisfied by a reference in the petition to
accounts furnished by the agent, which show
remission of rents by him, though there is evi-
dence establishing that the remission was wrong-
ful. —Penne/ather v. Bolton, 14 I. C. R. 335;
8 Ir. Jur. N. 8. 221. (C. A.) ; varying the Rolls’
Order, 141. C. R. 234; 81. Jur. N.S. 45.

 

IV, ALLOWANCES TO AND AGAINST PARTIES.

11. When a receiver has failed to pass his ac-
count within the time prescribed by the 148th
G. O., the court will not make a consent of all
the parties, to allow him his poundage and
costs of accounting, a rule of court.—Overend
v. O., 61. E. R. 3887. (R.)

12. A receiver, after having obtained leave of
the court, brought an ejectment, and the deft.
filed a bill in equity to restrain the proceedings.
The receiver, without obtaining leave of the
court, took defence to the bill. Held, that he
was disentitled to the costs of defending it.—
Conyers v. Crosbie, 6 I. E. R. 657. (E. E.)

13. The affidavit verifying a charge is not suffi-
cient to discharge an accounting party of items
under 40s, mentioned in the charge.

A land-agent misconducting himself in the
management of property, although he receives
10 Practice.

and accounts for the rents, may be disallowed his
fees on the sums received.—Palmer v. Goodwin,
131. C. R.171. (C.)

 

V. How Barrep.—(See also Account STATED
AND SETTLED.)

1. A deft who does not by pleading claim the
benefit of the Statute of Limitations, cannot
rely on it in the office in bar of the account.—
Walsh v. W., Jo. & Car. 52, (E. E.)

2. Accounts totted and admitted by other par-
ties, but not vouched by the executor. Held,
not binding on a minor claiming under the tes-
tator’s will.— Purcell v. Cole, L. & Towns. 449.
(E. E.)

_ 8. A creditor in the East Indies had dealings
with a firm of merchants, and, after the disso-
lution of the firm and the death of one of the
partners, furnished, as if to the firm, his ac.
counts in the usual course. They were certified
to be correct by one of the partners, who con-
tinued the business, and to whom was intrusted
the winding up of the concern. Held, that
these accounts barred the executors of the de-
ceased partner as stated and settled accounts.—
Luckie v. Forsythe, 3 Jon. & L. 388. (C.)

4. When there has been a decree to account,
the suit may be revived within twenty years after
the last step has been taken, unless there has
been such a variation of rights as to work an
injury. Insuch acasea settlement pendente lite
will not prevent a revivor.—Higgins v. Shaw,
2 Dr. & War. 356; 1 Con. & L. 400. (C.)

5. After a decree dismissing a bill as to open-
ing a settled account, the court will not, on fur-
ther directions, go into an item of overcharge. —
D'Arcy v. Burke, 21. BE. R. 1. (C.)

6. In 1822 a bill was filed by tenant in tail to
set aside a purchase made in 1808 by deft.’s tes-
tator as fraudulent and void as against the pif,
and for an account of mesne rates. In 1823 the
deft. answered. No further proceedings were
had until 1839, when this bill (of revivor and sup-
plement) was filed. Held, that the ptf. was en-
titled to an account only from the time of filing
the bill of revivor, and that interest on certain
sums of money, for which the deft. was declared
entitled to credit, should be computed from
that period only.— Thornhill v. Glover, 3 Dr. &
War. 195 (C.)

7. A sum was reported due for arrears of an
incumbrance in a suit in which an insolvent was
deft., but not his assignee. The insolvent af-
terwards procured a reassignment of his pro-
perty from the assignee. In a subsequent suit
respecting the incumbrance—Held, that the in-
solvent was bound by the account before
taken. — Byrne v. Lord Carew, 13 I. E. R. 1. (C.)

8. Under a decree made in 1817 in a suit by the
grantee of an annuity charged upon lands against
the grantor’s judgment creditors, who were in
possession under writs of elegit, an account was
taken of what was due to the grantee, and a re-
ceiver wasappointed over thelands. The grantor
was not a party to the suit, and died in 1842,
without having impeached the accuracy of the
account. Held, that, in consequence of the
acquiescence of the grantor for twenty years,

[ACCOUNT ]

 

Practice.

and the acquiescence of the coheiresses of the
grantor for six years, they were not entitled to
have the account taken de novo, but might

ees DP’ Estrange v. White, 11. C. R. 15.
VI. Mercnant’s Accounts.
VII. Pusiic Accounts.
VIIL Practice.

1. How taken generally,

2. In Master's Office—[See 30 & 31
V. c. 44; repealing, 13 & 14
V. c. 89, ss. 13, 14).

3. When taken with rests.

VIII. 1. How taken generally.

9. Semble, the court, having made an erro-
neous decree to account, is not bound to continue
the error by further proceedings in the suit taken
on the return of the Master's report.—Roberts
v. Hughes, Beat. Rep., 417. (C.)

10. A., after the death of his partner, B., car-
ried on the same business, disposed of the stock,
and bought in new. Shortly after B.’s death
the partnership property was, by valuation,
estimated at a certain value. Subsequently the
business declined. B.’s representatives filed a
bill praying only a partnership account. Never-
theless, A. was charged with the amount of the
valuation and interest since B.’s death.—Booth
v. Parkes, Beat., 444. (C.)

ll. Under a decree to account a creditor filed
a charge on fuot of a judgmevt. It was dis-
allowed, because barred by the statute of li-
mitations. The creditor then issued a sci. fa.,
against the inheritor, the conuzor’s heir. The
fund being deficient no defence was taken to
the sci. fa., and the judgment was revived.
The creditor then got permission to file a charge
and obtain a report at her own expense; but
the court directed the officer, in considering the
statute of limitations, not to act upon the
judgment of revivor, so far as regarded the
rights of the other creditors who had proved
under the decree.—Browne v. Lynch, Jo. & Car.
195, E. E.

12 Acreditor, who, after final decree in a cre-
ditor’s suit, applies for liberty to file a charge
under the decree to account, should state by
affidavit that he had no notice of the suit’s pen-
dency ; or, if he had, should account for not
having filed his charge at the proper time under
the decree.

The court will not, after final decree in a cre-
ditor’s suit, permit the owner of a judgment,
affecting part of the estate decreed to be sold,
to file a charge on foot of it under the decree to
account, unless the taking of an account on foot
of that judgment appears necessary; or the
suit appears to be so constituted that the same
relief may be given in it as in an original suit
instituted by the applicant.

An interlocutory decree directed an account
to be taken of all charges and incumbrances af-
fecting the real and freehold estates of the de-
Practice.

ceased. After final decree, a person asked leave
to prove a judgment affecting part of the lands
decreed to be sold. The sale of those lands not
appearing to be necessary for the purposes of
the suit, and the personal representative of the
conuzor of the judgment not being a party to
the suit, the court refused the application.
O Kelly v. Bodkin, 31. EB. R. 506. (£.E.)

1. Form of a decree to account in a judgment
creditor’s suit, under the 3 & 4 Vict. c. 105, ».
22, to sell the conuzor’s lands in his lifetime.—
O'Brien v. FitzGerald, 51. E. R. 593. (E.£,)

2. Under a decree for an account of the perso-
nal estate of a deceased person who had been
seised of real estates, the Master should take an
account of the rents of the real estate due at the
time of the death of the deceased. A report,
finding the amount of personal estate, but in
which no account of such rent has been included,
will be imperfect.— Bowen v. Evans, ] Jon. & L.
178; 6 I. E. R. 569. (C.); [Afi 2 H. Lads.
Cas, 257.]

3. A suit for an account against an elegit credi-
tor in possession was heard on bill and answer,
The only evidence before the Master, to charge
the deft. with the rent of certain lands, was the
admission in the answer, which was accompa-
nied by a statement that the lands were erro-
neously included in the elegit, and belonged to a
third person, with whom the deft. had accounted.
Held, that the Master was not bound to take
the entire statement in the answer, but might,
on the admission, charge the deft. with the rent
received, and find that the property belonged to
the debtor.—IM‘Donnel v. Alcock, 8 I. E. R.
127. (C.)

4, In a decree against an executor for an ac-
count of old standing, a direction’ was inserted
allowing him to discharge himself by affidavit as
to items exceeding 40s.—Dooner v. D., 12 I. E.
R. 580. (C.) [See 1 I. Jur. 209.]

5. If the decree in the original suit merely di-
rects a common account against an agent, a de-
cree, charging him with what he might without
wilful default have received, cannot be made in
a supplemental suit.—Connor v. Reeves, 16
LC. R. 398. (R.)

6. D. & Co., stockbrokers, on becoming bank-
rupt in 1848, owed money to their bankers, M.
& Co., who proved their debt under the fiat.
D. & Co. resumed business and their dealings
with M. & Co. on the terms, that any commis-
sion business which D. & Co. transacted for
M. & Co., should be placed to the account of
the old debt ; and that M. & Co., as bankers of
D. & Co., should make them advances. Rail-
way shares were deposited with M. & Co. to
secure any balance that might, from time to
time, accrue due on the bankers’ account. An
account, called the L. account, was kept by
M. & Co. on foot of the commission business.

In 1857, D., one of the firm of D. & Co., died.
At his death, a large balance was due to M. &
Co. on foot of the general banking account, and
a balance due to D. & Co. on foot of the L. ac-
count, After D.’s death, M. & Co. paid calls
on the railway shares to save them from for-
feiture. In a suit to administer D.’s assets,

[ACCOUNT]

 

Practice. 11

M. & Co. claimed the balance due, giving credit
for the price of some of the shares which they
had sold from time to time after D.’s death,
Ffeld, that M. & Co, were not bound to sell, or
chargeable with the value of the shares deposited
with them at D.’s death ; but should give credit
for theiz value at the times of the sales thereof,
or of redemption, on payment of the balance on
foot of the general account.

That the balance due to D. & Co. on foot of
the L. account, should not be set off against the
balance due to M. & Co. on foot of the general
account,

That M. & Co. were entitled to credit in the
general account for all the calls on the shares
paid by them, though the price of some of the
shares was less than the amount of the calls so
paid on those shares. /

That M. & Co. were entitled to take the
account before the death of D., with half-yearly
rests and compound interest, it being proved
that such was the custom of bankers at the place
where the transactions occurred.

That, at D.’s death, the account ceased to be
a banking account; and the balance due was
merely a simple contract debt, and did not bear
interest.— Graves v. Davies, 171.C. R. 227. (R.)
[See Graves v. Davies, 15 I. C: R. 204; 17
LC. R. 90. C. A]

VIII. 2. In the Master’s Office.

7. After decree to account and final decree, a
judgment creditor will not be allowed to file a
charge provinga demand against the real estate
decreed to be sold, it appearing that such sale is
not necessary for the purposes of the suit.—
O'Kelly v. Bodkin, 31. E. R. 506. (E. I.)

8. The taking of the account of puisne incum-
brances directed by the 102nd G.O. (27th of
March, 1843), is not to have the effect of
delaying the ptf. in procuring the Master’s re-
port on foot of his own demand.

Semble, that the Master should report sepa-
rately as to the puisne incumbrances,—Davis
v. Rowan, 2 Con. & L, 154. (C.)

9. A minor, a ward of court, was entitled to
lands in fee, subject to a lease for lives renew-
able for ever, upon payment of a fine of £15
upon the fall of each life. He was also entitled
to a sub-lease of those lands for lives renewable
for ever, upon payment of a fine of £15 on the
fall of each life. ‘This sub-lease was granted by
the first lessee, and contained a proviso that the
sub-lessee, if he neglected to nomivate a new
life and pay the fine within six months, &c.,
should pay a fine of twenty shillings for every
month during which he should so neglect to pay.
Neither lease was renewed from the time when
the minor’s ancestor became entitled to the fee
and the sub-lease—a period of nearly thirty
years. The first lessee presented in the minor
matter a petition praying a reference to the
Master, to ascertain whether it would be for
the minor’s benefit to renew the first lease, and
that he should accept a renewal of the sub-
lease ; and for an account of the amount due
for rent and renewal fines. An order was
made accordingly. The same lessee presented
12 [ACCRETION AND BONUS.]

another petition praying an account of the
amount due for renewal fines, septennial fines,
and penal rent, by the minor. An order of
reference, couched in the same terms as the
former order, was made upon that petition.
Held, that under these orders the Master was
not warranted in taking an account of peual
rent.—In re Colthurst, 5 I. E. R. 322; 3 Dr.
& War. 35 ;2 Con. & L. 35. (C.) [Revg. 41. BE.
R. 444; Fl. & K. 515. R.]

1. A motion for an order to take preliminary
accounts should not be made in a suit that is
either defective or abated; or in respect of
accounts the taking of which would prejudice
any question in the cause.-—Thompson v. Mazx-
well, 51. BE. R. 448. (R.)

2. A bill was tiled by the representatives of the
mortgagor of the chattel interest, against the
representative of the mortgagee (who, as well
as the now deft., had been for some time in pos-
session in respect of two mortgages from the
same person), praying an account of the sums
due on foot of the mortgages, an account of the
rents and profits received by the mortgagee and
the deft. respectively, whilst in possession, and
redemption. The deft. set up an account,
stated and settled by and between the mort-

gagor and mortgagee, but at the hearing gave |

no evidence in support of it, save a recital in
the second mortgage deed, that a certain sum
was then due on foot of the first mortgage. The
decree directed an account, in general terms, of
the sums due on foot of the mortgages. The
Master found that the ptf. was bound by the
stated and settled account. Held, that he was
wrong, as a general account had been directed,
and no special direction given to adopt this
settled and stated account. — Litzpatrick v.
Mahony, 1 Jon. & L. 84. (C.)

3. A surviving partner, having charge of the
partnership books, wilfully and fraudulently
refused to produce them, to have the accounts
taken under a decree. In the absence of other
evidence, the master charged £10 per cent a
year on the capital stock as the net profits
made during the partnership, and debited the
surviving partner with that amount. eld,
that he was justified in so doing: the court
decreed accordingly.

The court must give credit to what the
Master reports as having occurred in his pre-
sence.— Walmsley v. W., 3 Jon. & L. 556. (C.)

4. A sum was reported due for arrears of an
incumbrance in a suit in which an insolvent
was a deft., but not his assignee. The insolvent
afterwards procured a re-assignment of his pro-
perty from the assignee. Ina subsequent suit
respecting the incumbrance, Held, that he was
bound by the account before taken.— Byrne v.
Lord Carew, 13 I. E. R. 1 (C.)

5. The affidavit verifying a charge is not a suffi-
cient affidavit to discharge an accounting party
of items under forty shillings, mentioned in the
charge.

A land-agent misconducting himself in the
management of property, although he receives
and accounts for the rents, may be disallowed
his fees on the sum received.—Pulmer v. Guod-
win, 131. C. R. 171. (C.)

 

[Under the Ch. Amendment Act, 1867, 30 &
31 V., v. 44, s. 159, the court, in directing ac-
counts, may direct any books of account in
which the accounts have been kept to be ad-
mitted as prima facie evidence of the truth of
the matters therein contained. ]

VIII. 3. When taken with rests.

6. Ina suit by devisees of the reversion, deriv-
ing title under a tenant for life and equitable
incumbrancer, the Court of Chancery directed
accounts with annual rests. — Incorporated
Society for Protestant Schools v. Richards, 4 1.
E. R. 177; 1 Dr. & War. 258; 1 Con. & L.
58. (C.)

7. It is the settled practice of this court, in
taking accounts against mortgagees in posses-
sion, to make half yearly rests, and not to
charge against the mortgagee interest on pay-
ments exceeding the interest due to him re-
ceived at any intermediate periods, no matter
how frequently the payments are made.—
Graham v. Walker, 11 [. E. R. 415. (C.)

 

ACCOUNTAN' T-GENERAL. — See PRACTICE,
OFFICERS OF CouRT.

ACCRETION AND BONUS.—Scee Cuarity,
III.

8. The money brought into court having been,
on ptf.’s motion, invested in stock. Held, that he
was entitled to the benefit of a rise in the price
of stock.— Wynne v. Brady, 51. HR. 239.
(£, E.)

9. A particular sum having been set apart to
answer a pecuniary legacy, given to V. for life,
remainder to his children; and the value of
that fund having increased to au amount greater
than the legacy. Held, that the legatees were
entitled to the benetit of the increase.—Awn-
berly v. Tew, 5 I. E. R. 389; 4 Dr. & War.
136 ; 2 Con. & L. 366. (C.)

10. Bank stock was vested in trustees upon
trust to pay F. an annuity for life out of the
proceeds; to invest the residue of the proceeds ;
and, after F.’s decease, to divide the stock and
the savings of the proceeds into five equal shares,
one share to be transferred to each of tive
persons named.

During F.’s life, one-fifth of the stock was, upon
the marriage of one of these five persons settled.
Held, that, from the parties’ intention gathered
from the nature of the instruments, and upon
its true construction, one-fifth of the accretions
by way of bonus subsequently added to the
original principal, and also one-fifth of the sur-
plus dividends, were subject to the trusts of the
settlement.

Another of the five persons by deed, reciting
that he was entitled, after the annuitant’s de-
cease, to one-fifth of the stock, in consideration
of £500, sold aud assigned £750, or one-half
By Consents

part of his share of £1,500, and all his estate
and reversionary interest therein. Held, that
the purchaser was not entitled to the accretions
by way of bonus which had been afterwards de-
clared on the £750, or to the surplus dividends
thereof.— Plunkett v. Mansfield, 2 Jon. & L.
344. (C.)

1. A bonus, declared by the Bank of Ireland on
their stock, in addition to the annual dividend,
is not in the nature of annual profits, but is an
accretion of the capital. The interest only on
such bonus belongs to the tenant for life of set-
tled stock.—Hzx parte Hodgens, 111. E. R. 99.
(C.) [Butsee French v. Craig, 8 I. C. R. 142.
R. below. ] :

2. Lands were, by marriage settlement of 1801,

conveyed in trust, for C., the intended wife, for
life, remainder to B., the intended husband, for
life, remainder in trust for the younger children,
with power to the trustees to sell the lands, and
lay out the produce in the purchase of other
lands, in fee, or in government securities.
There was one younger child, K. The trustees
sold the lands, and lent a portion of the purchase
money to B. on the security of his bond and
warrant, and a policy of insurance on his life,
which was effected by the trustees. By a deed
of 1832, to which neither K. nor her trustees
were parties, B. and his eldest son R. con-
veyed other estates, of which B. was tenant for
life, remainder to R. in tail, to the use of a
trustee for 500 years, to raise by mortgage a
sum of £16,000, to pay off incumbrances ; and
after reciting that bonuses had accrued on the
policy of insurance to the amount of £2,500,
and that B. had agreed, in order to indemnify
R.’s estate, to assigu to the trustee of the term
all his interest in the policy of insurance, and
all bonuses thereon ; B. assigned all his interest
in the said policy of insurance, &c., in trust to
apply the produce thereof, in payment, or in
part payment of £16,000 intended to be bor-
rowed. The £16,000 was, in 1834, raised by
mortgage of the term without referring to the
policy or indemnity clause in the-deed of 1834.
By deeds of 1839 and 1843, the surviving trus-
tee of 1801 assigned the judgment and the po-
licy of insurance to R., as a new trustee, on the
trusts of the deed of 1801. C. and K. accepted
the judgment and policy as a proper investment
of the trust fund. Further bonuses afterwards
accrued on the policy.

Held, that the mortgagees were not entitled
to the bonuses as against R. under the indem-
nity clause of the deed of 1832.

_ Quere, whether K. was entitled to the bonuses
as against R.?—O’Grady v. Brady, 3 1. C. R.
439; 6 L. Jur. 321. (R.)

3. A testator bequeathed all the interest arising
out of what money he had in any banks. Held,
that a bonus or extraordinary dividend on the
shares of the capital stock of a joint-stock bank,
paid in addition to the usual half-yearly divi-
dend, and out of the net annual profits of tho
bank for the year, was not an accretion to the
capital, but passed under the bequest.—French
v. Craig, 81. C. R. 142. (R.)

[ACQUIESCENCE AND CONSENT.] and Admissions. 13

ACCRUER.—-See Portions.

 

ACCRUING SHARES.
— Of Right to, by Survivorship. See WIL1s.

 

ACCUMULATION.

See Srarutes, Construction oF, II.—Lxrcacy,
VIL—Wiut1, XV.—39 & 40 Geo. III.
c. 98, determining the Period during which
Trusts for Accommodation are lawful —
InrerEst.—See ACCRETION.

 

ACCUMULATIVE LEGACY.—See Lrcacy,
VII.

ACKNOWLEDGMENT.

See ADMIssION—PL, ANSWER—TITLE— Hus-
BAND AND WirE—To PREVENT THE Bar
OF THE SratTuTE oF LimiTaTions.— See
LIMITATION OF ACTIONS.

 

ACQUIESCENCE AND CONSENT.

See PRacTICE—DECREE—PRACTICE—BILL, D1s-
MISSAL oF—Bankruptcy, VI.—HusBanp
AND Wie, III.—Convition, V.—LENcTH
or TimME—CoNFIRMATION—LACHES.

I. By ConsENTS AND OTHER ADMISSIONS
tN PROCEEDINGS IN CouRT.
II. By Apmisstons IN DEEDS AND OTHER
INSTRUMENTS.
III. By orHer Acts AND GENERAL CoURSE
oF DEALING.

 

I. By ConsENTS AND OTHER ADMISSIONS IN
PROCEEDINGS IN CouRT.

4, A consent, the object of which is the allow-
ance of a sum of money paid by a receiver on
account of costs, will not be made a rule of
court, unless signed by the parties themselves,
as well as by their attorneys.—Coleman v.
Mason, 21. E. R. 322. (EB. E.)

5 In 1839, the ptf., in the fifth of several
causes, obtained at the Rolls an order for the
transfer of funds to the credit of all the causes ;
and, in 1840, a further order to pay him the
fund then in court in part discharge of his de-
mand. In 1843, the ptfs. in the fourth cause
appealed against those orders. Held, that the
appeal could not be entertained, because o
their acquiescence, and the lapse of time.—Mur-
tagh v. Tisdall, and four other causes, Dr. Rep.
t, Sug., 250. (C.)

6. A receiver's account was not passed within
the time limited by the G. O. The Master
therefore disallowed his fees and costs. Motion,
upon consent, that the Master be at liberty to
allow the receiver his fees and costs. Held,
that the consent was irregular. The court re-
fused to act upon it.—Bessonet v. Wadler, 1 I.

 

Jur. 150. (R.)
14

1. Entering into a consent does not preclude a
party from appealing. —Delacherois v. —, 21.
Jur. 89. (C.)

2. The Court refused to make an order on
consent in a petition matter, that the petitioner
might set and manage the lands, and the tenants
pay him their rents.—Johnston v. Moran, 2 I.
Jur. 172. (R.)

4, Under a decree pronounced in 1817 in a suit
by the grantee of an annuity, charged upon
lands, against judgment creditors of the grantor,
who were in possession by virtue of writs of
elegit, an account was taken of what was due to
the grantee, and a receiver was appointed over
the lands. The grantor was not a party to that
suit, and died in 1842 without having impeached
the accuracy of the account taken in 1817. The
grantee’s executor in 1848 (up to which time
the receiver had continued in possession) tiled a
bill against the co-heiresses of the grantor, pray-
ing a revivor of the former suit, an account of
what was due for arrears of the annuity, and
that the sum found due should be declared a
charge upon the lands. The defendants insisted
that the accounts taken in the former suit in
the absence of the grantor did not bind them.
Held, that the acquiescence of the grantor
during a period of twenty-five years, and the
subsequent acquiescence of the defendants for
six years, disentitled them to have the account
of what was due in 1817 taken de novo, but
that they should be at liberty to surcharge and
falsify it.—L’Estrange v. White, 1 1. C. R. 15.

(C.)

4, E. Being seised in tail of the V. estate, in-
cluding the lands of B. and G., with remainder to
C. in tail, levied fines and suffered recoveries
of the V. estate (except the lands of B. and G.)
in 1814. In 1844, after the death of E., the
Master made a report in the matter of C. and
others, minors, finding that E. had by fines and
recoveries barred all estates tail in the V. estate.
In 1837, C. had, in fact, attained his full age.
In 1845, an answer (without oath or signature)
was filed in the cause of W.v. V., by the plf.’s
solicitor, on behalf of C., admitting that E., by
fines and recoveries, had legally barred all es-
tates tail in the V. estate. A similar admis-
sion was made in an answer filed by C. in 1848,
in acreditor’s suit of O’B. v. V. A decree to
account having been made in W. v. V., the
plfs. stated that E., seised of the V. estate
(enumerating inter alia the lands of B. and G.),
made his will, &c.; and the discharge filed for
CO. admitted that statement. The Master's re-
port in W. v. V. found that E. had levied fines
and recoveries of all the V. estate, and acquired
a fee-simple therein ; but no evidence was given
before the Master to support that finding. The
cause of W. v. V. having been set down for
final hearing in 1848, was directed to stand over
until the return of the report in O’B. v. V.;
and a petition having been presented in the I.
E. Court, it was discovered, after one of those
denominations had been sold, that the lands of
B. and G. were not included in the fines
and recoveries. Held, that a cause petition
filed by C., praying relief from the effect of the
erroneous admissions, could not be maintained,

 

[ACQUIESCENCE AND ‘CONSENT. ]

and should be dismissed, with costs, but with-
out prejudice to any other proceeding which he
might adopt for the same purpose.— Villiers v.
White, 21. C. R. 413. (C.); 4 Ir. Jur. 86.

5. The parties in a cause, the receiver, and A.,
consented that A. should be substituted for B.,
as receiver ; that certain persons be approved of
as A.’s sureties ; that the security be measured
at « named sum, without reference ; and that
the existing sureties be discharged; that A.
should pay an advance made by B. and all B.’s
costs, and have credit in his accounts for those
payments ; that a policy of insurance on B.’s
life should be discontinued ; that A. should keep
up the premiums on D.’s life, already insured ;
and that the amount of the insurance should,
when realized, be applied to recoup A.’s ad-
vances. Held, that such a consent might be made
a rule of court, it appearing that there was not
any intention to traffic with the receiver’s office.
—farran v. Morris, 41. Jur. 366. (C.) ~

6. A person who was properly made an answer-
ing party in a cause, and is made a notice party,
is not bound by the proceedings. A consent
was signed by a solicitor as solicitor for and on
behalf of the ptf. He happened to be the
general solicitor of a person so circumstanced.
Held, that she was not bound by the consent
which did not purport to be signed on her be-
half.—O’ Grady v. Brady, 31. C. R. 439; 6 1.
Jur. 321. (R.)

7. Quere, can a married woman validly con-
sent to a particular form of order? A married
woman, having, during her husband’s life and
after his decease, acted upon such an order, was,
nevertheless, permitted to make it a ground of
appeal to the House of Lords.—Boyse v. Ross-
borough, 2 I. Jur. N. 8. 265. H. L.; (8. C. 6
H. Lds. Cas. 2.)

8. In 1827, a lessor, who was either tenant for
life only, or entitled in quasi tail for lives re-
newable for ever, made a lease for her own life,
with a covenant that she, if she should be
enabled, either separately or in conjunction
with any other person or persons, to grant the
premises for any longer term, would, at the
request and costs of the lessee, execute all such
further act or acts, &c., for the purpose of
granting to him, at the same rent, the premises
for any term not exceeding three lives, with
covenant for perpetual renewal, on payment of
a pepper-corn fine on the fall of each life, &c.
The lessee covenanted for himself, his heirs,
and assigns, with the lessor, to accept such grant.
The Court of Appeal decided (7 I. C. R. 388),
that the lessor was tenant in quasi tail.

Semble, the covenant was a personal one,
binding the lessor during her life, and did not
descend with the land.

No claim was made on foot of the covenant
during the life of the lessor, who died in 1854.
Judgments had been obtained by the petitioners
for the same debt, against the lessee and R.,
who was entitled in remainder to the reversion,
and afterwards became entitled to the lessee’s
interest. After the lessor’s death, R.’s creditors
tiled a petition in the I. E. Court to sell the rever-
sion, on the ground that the lessor had been only
In Deeds, &e.

tenant for life ; or, if tenant in quasi tail, had
not barred the entail. The petitioners were
made parties in that matter, as judgment
creditors of R. After it was dismissed by the
Court of Appeal, they, in other proceedings in
the L. E. Court, admitted the right of the re-
spondents, who were devisees of the lessor, and
had gone into possession of the lands. Held,
that the right to a specific performance of the
covenant had been abandoned, and was barred
by laches and acquiescence.

A judgment creditor of a tenant may main-
tain a suit for a renewal.--Homan v. Skelton, 11
I. C. BR. 75. (R.)

1. R., in 1776, upon his marriage, settled his
real estate to the use of himself for life, re-
mainder to trustees for 300 years, remainder to
his tirst and other sons, successively in tail male,
remainder to the first and other daughters of the
marriage, successively in tail male, remainder
to his right heirs.

The trusts of the term were to raise £3,000
for the portion or portions of the ‘daughter or
daughters, and younger son or sons of the said
marriage; if more than one daughter or younger
son, the £3,000 to be payable among them as R.
should appoint, or, in default, equally ; but if
only one daughter or younger son who should
not, at R.’s decease, be his eldest son, then to
raise a sum not exceeding £2,000, as provision
for such only daughter or younger‘son, as R.
should appoint.

R. had issue, two daughters only, M. and E.,
and died in 1785. On the marriage of M. in
1802, the lands were settled, giving estates tail
to the first and other sons of M., with remainder
to the first and other daughters in tail.

In 1814, a bill was filed against M., her hus-
band, and T., her eldest son, to raise charges
affecting the settled lands. TT. died, leaving
H., eldest daughter of M., the first tenant in
tail of the settled lands, against whom the suit
was revived.

In 1818, a report found that the estates were
charged, under the settlement of 1776, with
£3,000 for E. ; in the same year a decree de-
clared that sum well charged on the lands, and
directed a sale of the fee for payment of the
charges, but did not reserve a day to show
cause, though H. was an infant; the guardian
ad litem of H. had an interest adverse to
hers.

Interest on the sum of £3,000 was paid by M.
down to her death, and, after her death, by the
respondent W., down to 1858,

Tn 1860, a petition was presented by E.
against W., a son of M., born after the decree
of 1818, and the first tenant in tail under the
settlement of 1802, stating the decree of 1818,
but not relying on it as an estoppel, nor praying
to have it carried into execution.

Held, that ‘‘ daughter” in the settlement of
1776, meant ‘daughter not entitled to the
estate.” si

That the decree of 1818 was wrong in sub-
stance and form.

That W. was not, in the form of suit adopted,
bound by it, or by the acquiescence evidenced

[ACQUIESCENCE AND CONSENT. ]

 

In Deeds, dc. 15

by the payment of interest, and that £2,000
ought to be raised.—Stirum v. Richards, 12
I. C. R. 323; 7 Ir. Jur. N. 8. 69. (C, A.)

II. By Apmisstons In DEEDS AND OTHER
INSTRUMENTS.

2. The Court is unwilling to disturb agree-
ments when the parties have acted under them,
and cannot be remitted to their original rights. —
Westby v. W.,4 1 E. R. 585; 2 Dr. & War. 519;
1 Con. & L. 537. (C.)

3. In a suit to impeach a deed of gift to an
agent and trustee. Held, that though the deed
was in its origin voidable, and unsustainable if it
stood alone and had been impeached in a reason-
able time ; yet it was validated and made bind-
ing on the grantor, by his subsequent deliberate
acts done with the assistance of his legal ad-
visers.—De Montmorency v. Devereux, 2 Dr. &
Wal. 410; 7 Cl. & F. 188; West, 64; affg.
1 Dr. & Wal. 119. (C.)

4. Ifa vendor, who has a right, upon equitable
grounds, to impeach a sale, neglects to do so,
and adopts it by subsequently executing other
deeds, and thus acts upon it as binding, he can-
not afterwards impeach the title of equitable
mortgages, who, after these acts, advanced
money (bond fide and without notice) to the
purchaser.—Nagle v. Baylor, 3 Dr. & War. 60.
(.)

5. A., filling the situations of guardian, agent,
receiver, and tenant, procured from his ward,
immediately upon his coming of age, a lease of
the entire of his property, for lives renewable
for ever, upon terms disadvantageous to the.
ward, who, eleven years afterwards, filed a
bill to set it aside. Held, that the lapse of
time did not disentitle him to equitable relief.

The ptf.'s acquiescence was held, not to bar
his right, because he had been the deft.’s debtor,
and therefore, completely under his control.
Muthallen v. Marum, 3 Dr. & War. 317. (C.)

6 A., entitled to realty by voluntary convey-
ance, settled it in strict settlement. After A.’s
death, his heir-at-law, tenant for life under the
settlement, on his marriage, by deed reciting
the voluntary settlement, conveyed all his in-
terest in the lands upon trust, to secure a provi-
sion for his wife. Quere, could he afterwards
insist that the voluntary settlement was void,
because A. was mentally imbecile when he exe-
ra it.—Roddy v. Williams, 3 Jon. & L. 1.
(C.

8. S., seised in fee of K., X., and other lands,
by deed of Feb., 1807, reciting, that he had
charged his unsettled estates with £2,000 for his
daughter ; conveyed K. and X. to B., his eldest
son, for life ; remainder to his issue in tail. B.
covenanted to pay S.’s debts and incumbrances
in consideration of that grant, This deed was
registered on the first of June then next,

On the 12th June, by deed between Ss, Bs
and W., (another son of 8.), reciting that 8. in-
tended to convey K. to W., S. conveyed X. to
B., and his issue, as in the former deed. Both
16 In Deeds, dc. [ACQUIESCENCE

deeds recited other provisions made for W. and
other children, in lieu of charges on estates set-
tled on B., in remainder.

On the 13th June, by deed between &., B.,
and W., S. conveyed, and B. confirmed K. to
W. for life ; remainder to his issue in tail. 5B.
paid the debts and charges. S. having died,
W. went into possession of K., and so continued
till his death, when his eldest son, the deft.,
went into possession. W., with knowledge of
B. and the ptf, B.’s eldest son, expended
£5000 in improving the estate, but was aware
of the title under the deed of Feb., 1807. Held,
that this expenditure was not a defence to a bill
to carry into execution the trusts of that deed,
so far as they related to K.—Scott v. 8., 11
I. E. R. 487. (C.)

1. D., tenant for life, purporting to exercise a
leasing power, made in 1767, a lease covenant-
ing for quiet enjoyment, against the acts of all
claiming through him. In 1791 and 1792, D.
and his son E., tenant in tail in remainder,
joined in suffering recoveries, and re-settled
the estates subject to then existing leases: E.
was secured an annuity of £2,000, and £30,000
for his debts. D. died in 1799; the estates
were subsequently re-settled by E. and the
then remainderman. In 1848, the lease was
impeached as an excess of the power. Held,
that, on the doctrine of Taylor v. Stibbert and
Stoughton v. Crosbie, the lease, whether originally
void or not, was then valid.

The doctrine of these cases does not clash
with the principle of Garrard v. Lord Lauder-
dale, and similar cases, preventing a stranger
from taking advantage of a creditor's deed or
the like, to which he is not a party.

The owners of the estate being obliged, under
the circumstances, to raise the objections to the
lease in equity. Semble, the mere lapse of
time and acquiescence, from 1767 to 1848, barred
them from relief.— Marquis of Donegal v. Greg,
131. BE. R. 12. (C.)

2. In 1803 a pension was granted to M. for life.
In 1811, he, by indenture, assigned it for valu-
able consideration, to D., his heirs, executors,
&c. D. effected two policies of insurance on
the life of M., and died intestate in 1813, leav-
ing W. his heir, and seven next-of-kin, of whom
W. was one, and P. was another. W. died in
the same year, having devised and bequeathed
to his son N. all his real and personal property,
and appointed testamentary guardians of N., an
infant. They appointed X., a solicitor and
son-in-law of P., their general and law-agent in
the management of the property of N. The
administrators of D., treating the pension as
personal property of D., in 1813 authorised M.
to receive the pension. He, until 1852, paid
the premiums on the policies out of the pension,
and equally distributed the surplus amongst the
seven next-of-kin of D., or their representatives
or assigns. In 1820 N. attained his full age,
and continued X. as his general and law-agent
until the latter’s death in 1825. P. died in
1824, and from her death until that of X. in
1825, X., in right of his wife, received a moiety
of P.’s supposed one-seventh of the pension.
In 1821 N. obtained letters of administration

 

AND CONSENT.] — In Deeds, cc.

de bonis non to W., and in 1826 obtained like
letters to D. In 1842 M. re-purchased for valu-
able consideration their supposed shares of the
pension and policies from some of the next-of-
kin of D. ; and in the same year re-purchased
also for valuable consideration from N., his sup-
posed one-seventh of the policies and pension,
which latter, up to that time he had received
from M., as residuary legatee of W., one of the
seven next of kin of D. The deed, by which
N. assigned that one-seventh to M., was pre-
pared by M. In reciting the deed of 1811, by
which M. had assigned the pension to D., his
heirs, &c., it omitted the word ‘‘heirs.” N.
was executor and co-trustee with T., of P. In
1826 N. and T. filed a bill to administer P.’s
personal estate, and as she was entitled to one-
seventh of the personal estate of D., N. and T.
amended their bill, by making all those next-of-
kin and their representatives, &c., parties, and by
praying an account and administration of the
personal estate of D. In 1832 the usual decree
to account was pronounced, O. was the solicitor
of N. and T. as ptfs. in the suit ; but M. acted
in it as solicitor for N., administrator of D. and
W. The deed of 1811 was never produced be-
fore the Master. In a charge filed in 1850 by
O., on behalf of the ptfs., the pension was
treated as part of the personal estate of D., and,
as such, divisible, together with the policies,
amongst his seven next-of-kin. Their dealings
with it since 1813 (which had been numerous)
were specified in that charge (including the re-
purchases by M.) Its devolution in the cha-
racter of personalty, together with that of the
policies, was traced from 1813 to 1850. In
May, 1851, the Master, in his report, treated
the pension as personalty, and allocated it and
the policies amongst the seven next-of-kin of
D. X. and their representatives, and (inter eos) to
M. the shares which he had re-purchased.-
In February, 1851, a demand was made on
behalf of the revenue of legacy duty upon the
pension. N., being advised to resist it, and
having for that purpose obtained a copy of the
deed of 1811 from M., in whose custody it had
always remained, then first became aware of
the limitation of the pension to D. and his
heirs, and expressed to O. and M. his wish that
the report should not be signed until the liabi-
lity of the pension to legacy duty should be de-
cided. The Master having set aside a sum of
money to meet the amount of the legacy duty,
O., thinking N. thereby sufficiently protected,
and being pressed forwards by other parties in
the cause, procured the signature to the report,
and set down the cause for hearing. A final
decree in July, 1851, confirmed the report
unexcepted to. In January, 1852, the Court of.
Exchequer decided that the pension was not
liable to legacy duty, inasmuch as upon the
death of D., it devolved under the deed of 1811,
upon his heir, W. _N., as devisee of all the real
estate of W., petitioned that the decree of July
1851, should be re-heard, the report reviewed,
and all its findings with respect to the pension
struck out; and prayed a declaration that the
premiums on the policies should have been
borne by the personal estate of D., and not by
the pension ; that in taking the account of that
personal estate, credit should be given to N.
[ACQUIESCENCE

against it for the premiums paid out of the pen-
sion; and that provision should be made for
their future payment out of the personal estate
of D. The cause was re-heard simultaneously
with a motion on behalf of N. to send back the
report to be reviewed.

Held, first, that the mistake in supposing
the pension to form part of the personal estate
of D. was common to all parties: and that
there has not been any fraudulent suppression
of the deed of 1811, or of the nature and con-
tents of it by any person.

Secondly, that the title of the next-of-kin of
D. and their representatives, followed by pos-
session for so many years, and acquiesced in by
N., ought not to be disturbed ; that, even were
the court disposed to relieve N., no conditions
which it could impose would sufficiently protect
purchasers and others claiming under the'next-
of-kin of D.; and that the petition should be
dismissed, and the motion refused, with costs,

Thirdly, that N. could not have obtained
relief by a supplemental bill in the nature of a
bill of review, because he had become aware of
the contents of the deed of 1811 before the
report was signed, and the decree of July, 1851,
pronounced,

Semble, it was a fatal objection to the peti-
tion of re-hearing and the motion, that they
were on behalf of N. only, and not joined in by
his co-ptf. T. Quere?— White v. Mansergh, 2
I. C. R. 393 (C.); 51. Jur. 73. :

1. R., having power to appoint settled lands
among his children, by will, dated 1794, which
was not decided to be a due execution of his
power, devised the settled and unsettled lands to
his eldest son, and provided for his daughters
charges of £500 each. H., one of the daughters,
married in 1806, having then lately attained
full age. No evidence that she knew of the
will before her marriage was given; but a
receipt, dated 1807, for a half-year’s interest,
signed by her husband, and a copy of the will
in his handwriting, was produced. On a bill
filed in 1833—Heid, that the court might infer
that H., at the time of her marriage, knew of
the will, and acquiesced in its provisions. —Hail
v. Raymond, 8 I. C. R. 83. (C.); Dr. Rep.
temp. Napier, 80.

2. B., by deed, of which no notice was ever
given to the insurance company, for a nominal
consideration assigned a policy of insurance upon
his own life to trustees for his children, of whom
the petitioner was one. The entire interest in the
policy became Vested in 8. and the petitioner.
S. married the respondent, and by deed, re-
citing that she was entitled to one moiety of
the policy, that moiety was settled.. B. after-
wards, by deed, made without consideration,
professed to assign the residue of the policy to
the respondent ; but stated that he had led the
petitioner to believe that he would be entitled
to £100 out of the proceeds, and that the peti-
tioner ought to be made a granting party. The
petitioner declined to execute the deed; but
did not allege during the whole life of B. that
he had any claim on the produce of the policy.
The assignment was executed by B. to the
respondent, who gave the company notice

 

 

AND CONSENT. | 17

thereof, and paid the premiums during B.’s
life. He was not proved to have had any know-
ledge of the petitioner’s rights. Held, that the
petitioner’s conduct precluded him from en-
se his claim upon the. produce of the
policy.

Semble, that the rule giving priority to that
assignee of a chose in action, who first gives to
the debtor notice of his claim, applies between
volunteers as well as between assignees for
value.—Justice v. Wynne, 10 I. C. R. 489. (C.)
fo 12 J. © R. 289; 6 1. Jur. N.S,

8

 

ITIL—By ofHER ACTS AND GENERAL COURSE
OF DEALING.

3. A legatee, for 13 years after attaining age,
did not object to the several dealings by the
executors with her father’s (the testator’s)
assets, she not having been fully apprised of
her rights. Held, that this delay did not
amount to a release, or bar her right to relief.
—O’ Neill v. Hamill, Beat. Rep. 618. (C.)

4. Parties who have acquiesced for a long
period, such as twenty-three years, will not be
allowed to impeach a transaction on the grounds
of alleged illegality.— Westby v. W., 41. BE. R.
585; 2 Dr. & War. 519; 1 Con. & L. 587. (C.)

5. A., tenant for life, with remainder to his
issue as tenants in common in fee, conveyed
the lands as if he owned the fee to a purchaser,
B., in 1794, and died in 1820. In 1837, A.’s
children filed a bill against B. Held, that
there had not been on their part acquiescence
such as enabled the court, exercising its dis-
cretion, under the 3 & 4 Wm. IV., c. 27, s. 27,
to refuse them relief._Thompson v. Simpson,
1 Dr. & War. 459. (C.)

6. F., a simple contract creditor of J., fully
acquainted with a certain deed, entered into a
treaty to procure a loan for J. from an in-
surance company, to pay off D., after which he
was to get a second mortgage for his own
demand. He afterwards obtained a judgment
and filed his bill to impeach that deed. Sales
to a large amount were had under the deed. W.
settled his remainder in fee (which settlement
was also impeached), and on several other
occasions for nearly twenty years the deed had
been acted on. Held, that F., by his own acts,
had precluded himself from objecting to the deed
even if it was impeachable, and that the deed,
having been acted on so long, could not now be
disturbed. .

Held, that whatever rights J. took under the
deed were subject to the ptf’s. judgment; and
as D. had made no appointment of J.’s annuity,
an account was directed to ascertain what
allowance had been made to J. under it.

But Held, that F.’s right attached only from
the time he had applied for a receiver on foot of
his judgment, and the account should be limited
to that time.

F.’s judgment was impeached in the answer
of J. as fraudulently obtained, and his account
as usurious and improper. Held, that this case
could not be made by answer, but liberty was

c
18

given to file a cross-bill.— Myers v. The Duke of
Leinster, 71. E. B. 146. (C.)

1. A tenant, ata bulk rent, of lands over a part
of which a receiver was appointed, for years
made payments generally on account of rent,
to the receiver ; allowed him to allocate them
partly to the credit of the cause, and partly to
the person to whom the rent of that part of the
lands not in the cause belonged ; and for a long
time acquiesced in that allocation. Held, bound
by such acquiescence.

Held, pti. and the assignee disentitled to
costs of appearing on the motion.—Colthurst v.
C., 71. BE. R. 305. (E. E.)

2. Mere silence, during the dealing with an
estate against which a claim exists, does not
bar the claimant. A person claiming to be
exonerated by an estate, was referred to by a
purchaser, but did not mention his claim;
omitted to make it in a suit in which he might
have done so ; ineffectually attempted to enforce
it in another suit; and had acted as if liable to
the demand from which he sought exoneration.
ae barred.—Boyd v. Belton, 8 I. E. R. 113.

3. A., seised of 160 acres of C., for three lives,
renewable for ever, subject to a head-rent to B.,
and tenant to P. of the remainder of C., for a term
of years terminable in 1823, subject to a head-
rent of £10 to P. ; in 1817 demised to H. “the
lands of C., containing, by estimation, 160 acres
more or less,” for three lives or thirty-one years.
Held, that this lease did not pass that remainder.
The lease provided that it should be lawful for
H. to pay the head-rent of the lands to B. H.
covenanted to pay it, and to indemnify A.
therefrom. H. went into possession of the
entire of C. H. and his son, with the sanction
of A., paid the head-rents both to B. and P.
until 1841, and deducted them from their rents.
Held, that these dealings did not alter the
parties’ rights; and that H. was liable to the
arrears of £10 since 1817.—O’Grady v. Wal-
dron, 81. E. R., 719. (C.)

4. A purchaser served notice on the vendor
that unless a good title was made within a week,
he would consider the contract at an end; yet
continued negotiations, and did not tinally appear
to abandon the contract until about a month
before the filing of the vendor's bill for specific
performance, Held, that the acquiescence of
the purchaser in the proceedings taken after
the service of the first notice, prevented his
relying on unreasonable delay so as to disen-
title the plaintiff to maintain his bill.—Irvine v.
Deane, 21. Jur. 201. (C.)

5. Parties entitled to a fund dealt with it in a
particular way for a long series of years. In the
absence of positive evidence showing what their
shares were, Held, that the parties must be
taken to have heen entitled to it in the shares
pointed out by their mode of dealing with it.—
Sneyd v. Stewart, 31. Jur. N. 8. 105. (R.)

6, Although covenants are not to be construed
by parties’ acts, their conduct in relation to the
covenants may evidence the existence of a new
agreement.—Lu-p. Pilkington, 4 I. Jur. N.S.
102, (R.)

 

[ACQUIESCENCE AND CONSENT.]

7, A tenant contracted with a tenant for life
for a lease which did not bind the remainder-
man: entered into possession, and after the death
of the tenant for life, having sent a copy of the
contract to the land-agent of the remainderman,
expended a large sum on the lands. The re-
mainderman knew, or had an opportunity of
knowing of this expenditure, though he denied
it, and it did not appear that the contract had
been directly communicated to him. Held, that
the notice given to the land-agent did not affect
the remainderman so as to give the tenant an
equity against him by reason of his aequiescence
in the expenditure.—O’ Fay v. Burke, 8 1. C. R.
225. (R.) [Aff., Ibid. 511. C. A.J

8. In 1703, lands were demised for a term of
years. The representatives of the lessee dealt
with them from 1725 until 1840, as if they had
been freehold. The devolution of title between
1726 and 1770 was not proved. Held, that as
between persons claiming under a deed of 1770,
the lands were to be treated as if a release of
the reversion on the term were to be presumed,
Dysaght v. Royse, 12 1. C. R. 444. (C.)

9. In a marriage settlement a husband cove-
nanted with his trustees that his heirs, executors,
&c., would, from his death, pay his wife a yearly
jointure of £40; and pay them £400 for the
benefit of the children, if any. The husband
became indebted to one of the trustees, who
entered up judgment against him, and insured
the husband’s life for its amount. Upon sale of
the trust property, Held, that the assignee of
that judgment was entitled to be placed upon
the final schedule of incumbrances in priority to
the settlor’s wife and children ; and that, in con-
sidering dealings between a trustee and his
c. q. t., the length of time during which the
trustee’s acts have been acquiesced in, with the
knowledge of the ¢. g. t, is to be taken into
account in the trustee’s favour.—Ennis v. Smith
Jon. & Car. 400, followed. In re M‘Kenna’s
Estate, 6 1. Jur. N. 8. 330. (C. A.)

10. A sum of £800 was by agreement between
the tenant for life and the tenants, and with the
sanction of ‘the court, paid to the credit of the
matter in full for all renewal fines and interest
in respect of a certain lease for lives renewable
for ever, of which no renewal had ever been
granted. A condition of sale was inserted on
the rental, that the purchaser should execute a
renewal to the tenants. Held, that as the re-
newal was the act of the court, and as what
was lost to the inheritance by the renewal was
restored to it by giving it the £800, which was
added to the corpus of the fund, the personal

‘representative of a deceased tenant for life was

not entitled to any part of the £800.

Semble, the personal representatives of par-
ties who have not executed a renewal, have no
claim for fines upon a subsequent renewal.—In
re Tibeaudo’s Estate, 141. C. R. 322; 8 Ir. Jur.
N. 8. 339. (L. E. C.)

11. M., seised and possessed of certain real,
chattel real, and personal property, including
property in N., held for lives renewable, subject
to a lease for 99 years, from February, 1762,
devised all her property to R. and H., whom
she named executors, upon trust, to pay certain
annuities ; and subject thereto to other persons.
[ADMINISTRATION AND ADMINISTRATOR. ]

The will empowered the executors to sell or dis-
pose of any portion of the property as they
should think fit for the advantage of the parties
interested. The testatrix died in 1819; H.
alone proved the will; and obtained a renewal
of the lands of N. in his own name as trustee.
In 1824 one of the persons beneficially entitled
to these lands executed a renewed lease of this
at an increased rent. In the preparation of it
H. acted as solicitor.

The devised property having become deficient
to pay the annuities, the annuitants about 1844
went into possession and receipt of the rents
and profits of all the devised property. When
the lease of 1762 expired, the annuitants filed a
cause petition against the lessees under the lease
of 1824, claiming thereby to hold discharged of
their lease. Held, that the receipt of the in-
creased rent by the annuitants from 1844 did
not operate as a confirmation of the lease by
them, and that they were entitled to hold dis-
charged from it.—Metcalf v. Ryves, 14.1. C. R.
558; 81. Jur. N. 8. 405. (C.) :

1, A firm having adopted the letters ‘‘ LL” to
denote « peculiar quality of whiskey sold by
them, acquired an exclusive right to the use of
those letters as a trade-mark, though they were
always preceded by the name of the firm upon
the labels issued by it.

In order to prove acquiescence by a firm in
the piratical use of their trade-mark, knowledge
of such use must be proved. That is not accom-
plished by proof of the publication of advertise-
ments, which would have been an invasion of
the rights of the firm, if these advertisements
have been issued not steadily or uniformly, but
interchangeably with other advertisements in
some respects similar, but notinfringing the firm’s
rights.—Kinahan v. Bolton, 15 I. C. R. 75. (C.)

2 A. made a lease of lands conditioned not to
sublet or assign without his consent, under hand
and seal; the lease to be void on breach. The
lessee, with A.’s consent by letter, though not
under seal, agreed to sublet part of the lands.
Afterwards B. purchased in the I. E. Court A.’s
reversion, subject to the agreement. The lessee’s
administratrix, C., applied to B. for permission
to make a lease, in pursuance of the agreement,
to E., to whom the interest under it had been as-
signed. B. advised and encouraged C.:to make
the lease ; stood by while E. expended a large
sum on the lands ; and witnessed the execution
of the sub-lease, which he knew to be a sub-lease
of the lands from C. to E. He also knew the
clause against subletting; but did not know
that A.’s consent was invalid in law ; and swore
that he had not then any intention to take ad-
vantage of a forfeiture. Having afterwards
brought an action of ejectment for the forfeiture,
Held, that the court had power to relieve the
tenant, notwithstanding the condition against
assigning or subletting, and the Subletting Act,
(2 Wm. IV., e. 17.)—Burkev. Prior, 151. C. R.
106. (R.)

3. Ifone party toa contract places on it a cer-
tain construction which he communicates to the
other party, who does not reject it, but suffers
him to act on it, such party will not afterwards
be permitted to repudiate it.—Jn re Thornton,
111. Jur. N.S. 16 B. ; ib. 62. (C. A.)

 

19

ACT OF BANKRUPTCY. See Banxrurtcy,
LV,

— Evidence of. See Bangrvercy, VL

 

ACT OF GOD. See Conpition, IV.

 

ACT OF LAW.
— Transfer of Power by. See Powzr, XIII.

 

ACT OF PARLIAMENT.—See Strarurzs,

ACTS PREVENTED.

— By Fraud. See Fravp, IL.
— By Proceedings, &c., of Court.
ARISING BY Acts or CouRT,

See INJURIES

 

ACTS.
— Voluntary. See Grrr.

 

ACTION AT LAW.

— Against and by Assignees in Bankruptcy. See
BANKRUPTCY, X.
[See also Practicz, Issuz at Law—Prac-
TICE, INJUNCTION.]

ADDING

— To, or altering Decree. See Practice, Dr-
CREE.

 

ADEMPTION.
— Of Legacy. See Leacy, III..

ADJOURNING CAUSE OR PETITION.—
See Bankruptcy, XVII.—Pracrics,
Causes, &e.

— Costs in Case of Adjournment. See PRAcTIcE,
Costs,

 

 

ADJUDICATION. .—See Bangrurtey, VI.

ADMINISTRATION AND ADMINIS-
TRATOR.

— Of Charity Revenues. See Cuantry, III.

— Of Assets. See Exucutors, XI,— Wit, XV.

— Costs of Administration Suit. Sce PRacrics,
Costs.

— Decree for. See Practice, DECREE.

[See Account, IV.—Executors, XII.—Disrrt-
BUTION. See PRacTICE, Court oF PrRo-
BATE. |

I. ADMINISTRATION.

1. Generally and validity of.

2. Who entitled to.

3. When to be taken out—its effect.
4, Bond and administration.

5. Contested.

II. ADMINISTRATOR,

1. Generally: his rights, duties, aud lia-
bilities.
2. Limited.
(a) Pendente lite.
(b) Durante minoritate.
(c) Cum testamento annexo.
(d) De bonis non.
(e) Durante absentia.

 
20

Statutes. —28th H. VIII. c. 18, regulated the per-
sons to whom administration should be granted.

7 W. IL. c. 6, required a bond with two sure-
ties to be given.

20 & 21 Vic. c. 79, 3. 85, repeals so much of the
7 W. III. c. 6, as requires sureties to be given ;
and ss. 86, 87, & 88, provide that the bond of
the administrator only shall be required ; the
amount to be double that at which. the assets
are sworn.

I. 1. Generally and validity of.

1. The court will distribute a fund in court
payable to a personal representative upon a
diocesan probate, if the intestate had not bona
notabilia.—Graves v. G. 81. E. R. 36. (R.)

I. 2. Who entitled to.

2. When a next-of-kin has the consent of the
majority of the next-of-kin that he be appointed
administrator, and is in other respects unobjec-
tionable, the fact, that he claims an interest in
some property adversely to the intestate’s estate,
is not a sufficient objection to disqualify him.—
Maqueen v. Barron, 6 I. Jur. N. 8. 70. (P.)

I. 3. When éo be taken out and effect of.

3. Ptf., administrator of C., instituted a suit to
discover assets. Thereupon a suppressed will
of C. was produced, and the administration re-
voked. Ptf. then filed this bul for an account
of what was due on two bills accepted by C.,
but unpaid, for ptf.’s costs, &c., as administra-
tor of C., down to the revocation of the admi-
nistration ; and that ptf. might be paid out of
C.’s personalty. Held, that ptf.’s costs of the
suit to discover assets were incurred, not merely
in his private right as party in another cause,
but in his character as administrator; and that,
as the grant of administration, though voidable,
was not void, and as it clothed him during its
continuance with the rights of a lawful adminis-
trator, he was entitled to be paid out of C.’s
personalty the expenses properly incurred in
executing the duties of his office.

A demurrer to so much of the bill as sought
an account, &c., of ptf.’s costs and expenses
as administrator was overruled. Held, that ptf.
was, therefore, entitled to his costs of the hear-
ing.—Howlett v. Lambert, 21. BE. R. 254. (R.)

4, The executor of an administrator who died
in England proved his will in lreland, in order
totake out administration de bonis non to the in-
testate, but did not take it out. Held, that the
costs of such probate were not chargeable against
the intestate’s estate—Langford v. Mahony, 5
I. E. R. 569; 4. Dr. & War. 81; 2 Con. & L.
317. (C.) 2a

The court has power to appoint an adminis-
trator ad litem without requiring administration
to be taken out.—[Sce 18 G. O. of 1857.]

3. Bond and Administration. [See 20 & 21
Vic. c. 89, secs. 115 to 118.]

5. A will bequeathed ‘‘all testator died pos-
sessed of to his wife, for the use of herself and

his children,” The court was moved to grant ad-

 

[ADMINISTRATION AND ADMINISTRATOR.

ministration to the widow, without her giving
security, or that the security should be measured
at alow amount. The children were not wards
of Ch. The court offered to grant adminis-
tration upon the conditions that the children
were made wards of Ch., and a sum of money
lodged.—Cochrane v. C. 5 I. Jur. N. 8, 42. (P.)

II. ADMINISTRATOR.

1. Ganrally 3 his rights, duties, and liabili-
ies.
2. Limited.
(a) Pendente lite.
(6) Durante minoritate.
(c) Cum testamento annexo.
(d) De bonis non.
(e) Durante absentia.

[See Practice, Court oF ProzpatTe.]

IL. 1. Generally ; his rights, duties, and liabi-
lities. [See also Exon. 1V.,V. & VI]

6. When administration was granted by sen-
tence of the Ecclesiastical Court to A., as the in-
testate’s sole next-of-kin, in a suit wherein B.
also claimed to be the sole next-of-kin ; and that
sentence was affirmed on appeal ; and B. tiled a
bill impeaching A.’s pedigree, and to establish
his own. eld, that the court would not, by
injunction till answer, prevent the administrator
possessing himself of the assets; the adminis-
trator being, by decree of the Ecclesiastical
Court, both legally and equitably entitled there-
to.—Maher v. Gorman, 6 I. E. R. 304. (R.)

7. Ptf. by his bill stated that J. and others,
next-of-kin of R., agreed that he should have
£300 for his trouble and services in collecting evi-
dence, &c,, to establish their claim, which was
disputed ; and that they, and particularly J.,
promised he should have a lien for that sum on
the assets; that in consequence of his exertions,
the parties were declared next-of-kin, and that
J. and another of them, since deceased, took
out administration. The bill prayed that the
plf. might be declared to have a lien on the
assets. eld, on demurrer ; that the claim, so
far as it was a personal claim, was a demand for
work and labour, and was recoverable, if at all,
at law. That the promise by J. to give a lien
on the assets before administration, could not
be enforced against the assets, when J. and
another afterwards administered ; and even if
she alone had administered, such previous pro-
mise was by a stranger, and could be of no ayail.
Quere, would such promise be binding even
after administration ? :

A demurrer for want of equity will lie toa
cross bill.— Kirwan v. Gorman, 9 I. E. R. 154.
(B.)

8. The administrator of the executor of a sur-
viving trustee of money charged on real estate,
Held, not to represent the trustee in a suit to
raise the money, and a demurrer for want of
parties allowed on that ground.

Semble, a bill by the same person to raise two
sums charged on different estates, vested in the
game defendant, is not multifarious, though
[ADMISSIONS]

some’ of the persons interested in the one estate
are not interested in the other.— Van Reitzen-
stein v. Magan, 12 I. E. R. 415. (R.)

1. A civil bill decree against an administrator
is in the nature of a judgment de bonis propriis.

The Court, though it will enjoin a creditor
from enforcing such a decree against the assets,
when a decree to administer them has been pro-
nounced, will not restrain him from enforcing it
against the administrator personally.

Semble, a decree to administer assets is a de-
fence to a civil bill against the administrator, if
pronounced before the civil bill is heard.

Secus, if the decree is pronounced after the
hearing of the civil bill, but before an appeal to
the Judge of Assize.—Powell v. P., 12 1. E. R.
BOL. (R.) :

2. An administrator let lands of the intestate
under a written agreement for a lease which
could not be enforced; and neglected to take
proceedings to remove an occupier, in order to
give possession in pursuance of the agreement,
in consequence of which the tenant refused to
take the lease, and the lands remained unlet
for half ayear. Held, that he should be charged
with the half year’s rent, and with the costs of
the abortive letting.

Wilful default in an executor does not imply
deliberate or intentional default. He may be
charged with a loss arising from mere negli-
gence or imprudence, if unexcused.

A discharge in an administration suit imputed
fraud and improper motives to the administra-
tor, in not having let lands to a particular
tenant ; and also sought to charge him with
wilful default in not letting the lands. The
charge of fraud was disproved. Held, that,
since the charges of fraud were distinct, the
respt. was not precluded, by failing to establish
fraud, from relying on a case of wilful default.
—Connolly v. C.,17 I. C. R. 208. (R.)

IL. 2. (a). Limited—Pendente lite.

The 20 & 21 Vic., c. 79, 8.75, provides for
appointment of administrator pendente lite :
s. 78 gives power to the court if the executor is
abroad or insolvent or next of-kin declines, &c.
dec., to grant administration to any other per-
son. G. O. 18th of May, 1857, empowered
the court or master to proceed in a suit without
the representative of a deceased party, or
appoint some person to represent the estate in
liew of the deceased party.

The 30 & 31 Vic., c. 44, s. 110, contains pro-
visions similar to the 18th Gen. Order of May,
1857.

 

ADMISSIONS:

See Executor, X.
See PLEADING, ANSWER.
See PAYMENT INTO

— Of Assets.
— In Answer.
— Payment into Court on.

: Court, I

— Decreeson. See Practice, Ducrer.

— Production on. See Practice, PRopUcTion
oF Documents. [See also AcQuius-
CENCE. |

21

3. The court will not permit the answer of the
guardian ad litem of a superannuated person to
be read against him, nor make a decree against
him thereon, but will require the case to be
proved against him.—Freeman v. Grady, 8 I.
E. R. 187. (R.)

4, The deft., by suffering the bill to be taken
as confessed against him, admits the facts therein
stated, but ptf. must show that these admitted
facts entitle him to relief.— Simmonds v. Pallas,
81. E. R. 335; 2 Jon. & L. 489. (C.)

5. Payment during a number of years of a
small annual sum, inadequate to the value of
the demised premises, is not per se evidence
from which a tenancy from year to year can
be inferred. — Reynolds v. R., 12 1. E. R.
172. (R.)

6. Admissions of Counsel, how far binding. —
Mahony v. M., 2 J. Jur. 129. (C.) [See Bar-
rister. |

7. By a deed of 1827, R. covenanted with his
son D. that after the decease of P. the estate
which should thereupon descend .to or vest in
R. should be conveyed to certain uses. P. was
found a lunatic, but had made a will, under
which, if valid, G. took an estate tail. In 1830,
P. being dead, R., in violation of his covenant,
conveyed the estate to H. In 1832, an eject-
ment was brought by claimants under the will
of the lunatic... At the trial, R. and H. dis-
puted the will. The conveyance of 1830 was
set aside by a decree of the H. of Lords, by
which D. and his children were declared en-
titled, as against R. and H., to the benetit of
the deed of 1827; and it was referred to the
Master to settle a conveyance.. The Master,
by his report in 1843, found that D. had not
laid before him any conveyance. In 1841, H.
being in possession, a compromise was entered
into between him and G., and two deeds were
executed, by one of which G, released all right
and title to the estate to H., in consideration of
a conveyance of a portion of the estate which
was made by the other deed. A supplemental
bill having been filed by D. and his children to
carry the decree of the H. of Lords into exe-
cution against H. and G., who was not a party
to the original suit.

Held, (1.)—That though the plfs. had not
availed themselves of their right of having a
conveyance under the decree, they had not for-
feited their right to its benefit, as H. had by
the deeds of 1841 disabled himself from con-
veying the legal estate.

(2.) That the first deed of 1841 being a release,
and not a conveyance, was an acknowledgment
of the estate by descent in H., and operated to
confirm that estate ; and therefore that the ptfs.
were entitled to have the Lords’ decree enforced.
against G. (as claiming under H.), although he
was not a party to the original suit.

The uses to which the estate was to be con-
veyed by the deed of 1827 were to D., remain-
der to the first and every other son of his first
marriage successively, and the heirs male of
each such son lawfully issuing, remainder to the

 
22

right heirs of D., who, on the settlement exe-
cuted on his second marriage, conveyed his sup-
posed reversion to the use of the children of the
second marriage. D. and his children of both
marriages were ptfs. in the original and supple-
mental suits.

Quere, whether the fee vested in the sons of
the first marriage, and whether the children of
the second marriage took any estate ?

But as the H. of Lords had declared that the
children of the second marriage were entitled
to the benefit of the deed of 1827, the court
held that there was no misjoinder of ptfs. in the
supplemental suit.—Persse v. P., 3 I. C. R.
196; 4 I,Jur. 369. (C.); [Affd. 5 H. Lds.
Cas. 682.],

1. An executor, believing that there would be
assets sufficient to pay a legacy, became trustee
in, and executed the marriage settlement of, the
legatee in which it was recited that she was
entitled to the legacy. It was agreed to assign
the legacy upon certain trusts. There was
afterwards instituted for a breach of trust by
the testator, a still-pending suit which, if suc-
cessful, would exhaust the assets. Held, that
there had been an admission of assets prima
facie binding on the executor, who was ordered
to lodge in court the amount of the legacy,
without prejudice to his taking such proceed-
ings, as he might be advised to be relieved
against the admission of assets, if a decree was
pronounced against him in the first suit.—
Chaigneau v. Bryan, 8 I. C. R. 251. (R.)
[Affa. 101. C. R. 172; 51. Jun N.S. 4
C. AL]

 

ADULT, INFANT BECOMING.—See In-
FANT, III.—Practicz, ABATEMENT AND
REVIVOR.

ADULTERY.—See Huspanp anp Wirz, L—
JomntuRE, IV.—DoweEr, IV.

 

ADVANCE, TO PARTIES FROM FUND
IN COURT.—See Practiczr, Funp IN
Court.

 

ADVANCEMENT.—See Distrrsution, III.—
Custom, II.—Inrant, I.—PaRENT AND
Cuitp, IT.

ADVANCING CAUSE, OR PETITION.—
See Practice, Cause, &.—BANKRUPTCY,
XVII.

ADVANTAGES

OBTAINED BY PrERsons HoLpine Frpuciary
Srtuations.—See Fravp, VII.

 

ADVERSE TITLE AND POSSESSION.—
See Limrrations, Stature or, VI.

 

[AGREEMENT AND CONTRACT.]

ADVERTISEMENT.

— To Appear. See PracricE, CREDITOR’S
Surt—Practicr, ADVERTISEMENT.

— In Gazette. See BankRuprcy, VI.—Lonra-
TIONS, STATUTE OF.

 

ADVOWSON,.—See EcciesiastTicaAL PERSONS,
IIL.

AFFIDAVITS.

— To support Petition to Stay Certificate.
Bangrvurtcy, XVI.

— To support Bankruptcy Petitions generally.
See Bankruptcy, XVII.

— Annexed to Bill. See PLeapine, BIL.

— In Petition Matters under the Chancery Regu-

See

lation Act. See Pr. A¥FFT.

— To support Attachments. See Practice, AT-
TACHMENTS,

— When read against Answer. See PRACTICE,
EVIDENCE.

— When received and read generally. See Prac-
TICE, EVIDENCE.
-—_ In Reply. See Practice, EVIDENCE.

 

AGE.

— Infant attaining. See InFrant, ITI.—Prac-
TIcE, ABATEMENT AND REVIVOR.

 

AGENT.

— See PRINCIPAL AND AGENT.

— Under Power of Attorney. See Power.

— Undue Advantages by. See Fravp, VII.
— When Wifeis. Sce HosBaNnD AND Wirt, IV.
— Partners, how far they are. See PARTNERS,

— When to be madea Party. See PLEADING,
PaRrrTiEs.

— Accounts of and Allowances to.
PAL AND Agent, IV.

— Of Solicitor. See Practics, Costs.

See PRINcI-

»

 

AGREEMENT AND CONTRACT.

— Conditions of Sale.
CHASER, IT.

— Executory. See Executory AGREEMENT.

— Effect of the Statute of Frauds on. See Sta-
TUTE OF Fraups, I.

— Effect of on Wife’s Chose in Action. See Hus-
BAND AND Wire, III.

— Contrary to, or a Fraud on Settlement. See
Serriement, IV.

— For Lease. See Least, VII.

— For Renewal of Lease. See LEASE.

— As to Annuities. See Annuity, I.

— To accept part of a Firm as Debtors. See
Partners, VIII.

— Plea of. See PLEADING, PLEA.

— In Fraud of fiduciary Character. See FRaup,
VII

See VENDOR AND Pur-

— Between Members of a Family. See SETTLE-
MENT oF Famity Dispures.
Who may

[See CoatreLs PersonaL—CovEeNnaNntT—DEEDS,
II.—Nvupvum Pactum—SeErtLeMent on Mar-
RIAGE—PRACcTICE, Costs—-Practicg, INgUNC-
TION. ]

I, Wao may Contract.
II. Wxo BounD By.

III, Construction oF.

IV. WHAT AMOUNTS TO, AND CONSTITUTION,

VALipity, AND LEGALity oF.

. Generally, respecting uncertainty and
vagueness in them.

As respects the statute of frauds.

Presumed or implied agreements.

. Agreements by agent.

. Agreements by letter.

Agreements against public policy, and
illegal. See CHAMPERTY.

Agreemants obtained by fraud, duress,
undue influence, under mistake, in
ignorance, or which are unreason-
able.

V. BREACH OF.
VI. WatIveR OR VARIATION OF, AND DIS-
CHARGE FROM.
VIL. Satisraction or. Sce SETTLEMENT,
VII.—Portions, XII.
VIII. Spuciric PERFORMANCE.
1. By and against whom.
2. In what cases.

(a) Generally, and suits for, and mode
of enforcing.

1. When the court can and will
enforce an agreement.

2. When the court cannot ; or, be-
cause of laches, &c., will not, en-
JSorce an agreement.

(b) When there is misdescription or
misrepresentation as to value, &c., on
agreement for sale, dc. ; deterioration
of estate, &c. ; and when specific per-
Jormance will be decreed with com-
pensation.

(c) When there has been part perform-
ance.

(d) In cases of voluntary agreements,

(e) In cases of stock, chattels, éc., and
other personal property.

a oR wn

IX. WHEN TIME Is OF THE ESSENCE OF.
X. SETTING ASIDE.

 

I. Wxo may Contract.
[Respecting Contracts by Married Women. See
HusBanD AND WIFE.]

1. Ptf. by his bill stated that J. and others,
next-of-kin of R., agreed that the ptf. should
have £300 for his trouble and services in col-
lecting evidence, &c., to establish their claim,
which was disputed ; that they, and particu-
larly J., promised he should have a lien for
that sum on the assets; that in consequence
of his exertions, the parties were declared next-
of-kin ; and that J., and another of them, since
deceased, took out administration. The bill
prayed that the ptf. might be declared to have
a lien on the assets. Held, on demurrer, that
the claim, so far as it was a personal claim, was

[AGREEMENT AND CONTRACT]

 

Contract. 23

a demand for work and labour, and was recover-
able, if at all, atlaw. That the promise by J.
to give a lien on the assets before administra-
tion, could not be enforced against the assets,
when J. and another afterwards administered ;
and, even if she alone had administered, such
previous promise was by a stranger, and could
be of no avail. Qucre, would such promise be
binding, even after administration ?

A demurrer for want of equity, will lie to a
cross bill.— Kirwan v. Gorman, 9 I. E. R. 154.
(R.)

 

II. WHo BOUND By.

2. It may be inferred from the circumstances
under which a letter of licence was signed, that
it was not a concluded agreement binding on
the person signing it; ¢e. g., where it was in
course of signature by the creditors generally,
and was not to operate, unless signed by an
influential overpowering body of the creditors,
which it was not. Upon au issue sent to the
jury, it was found that the letter executed
thus, was not a concluded binding agreement.
Held, that this Court would not disturb the
verdict.—In re Semple, 3 Jon. & L. 488. (C.)

3. Part performance of a parol agreement by a
tenant for life, will not bind the remainder-
man.—Daly v. Coghlan, 3 I. Jur. N. S. 150.
(B.)

4, If one party to a contract, places on it a
certain construction, which he communicates to
the other party, who does not reject it, but
suffers him to act on it, such party will not
afterwards be permitted to repudiate it.—Jn re
E. Thornton, 11 I. Jur. N. 8. 16. (B.) Ibid.
62. (C. A.)

5. A minor, having made a Scotch “ matri-
monial contract ” of doubtful validity, became a
widow, and entered into the enjoyment of her
jointure. There being no evidence of the Scotch
law on the subject, the court—Held, that the
contract had been confirmed.—Lockhart’s Trust,
ae Lady Lockhart, 11 I. Jur. N. 8. 245.
(R.)

 

III. Construction or. See also DEEDs.

6. A. conveyed her life estate in land to her
son, in consideration of his paying the rent of
a house for her, and supplying her with suffi-
cient hay and corn. He covenanted to pay the
rent, and supply the hay and corn. Held, that
A. had on the lands a security, in the nature of
a vendor’s lien for the purchase money, for her
son’s performance of the contract.— Richardson
v. M‘Causland, Beat. Rep. 457. (C.)

7. V. seized of a life estate, being indebted in
sums secured by his bonds, filed a bill to re-
strain proceedings at law on them because of
usury ; and then entered into a consent in the
cause with his creditors, that a certain sum
should be found due on foot of these bonds.
The consent was embodied in the Master’s re-
port. The decree declared that sum due and
well charged on those lands. Held, that the
consent was such an act or contract on V.’s
part as, when acted on and embodied in the
24 Construction

decree, deprived V. of the right to execute a
power to charge the life estate with portions
for younger children, so as to affect the rights
of creditors under the decree, which had at-
tached upon V.’s life estate.—Piers v. J'uite, 1
Dr. & Wal. 279. (C.)

1. The deft. accepted and signed aletter written
by ptf., whereby it was agreed that ptf. ‘‘should
set to the defts., or assign, if preferred, for the
longest term he could grant.” Held, that the
defts. were bound to take such title as ptf. had
at the date of the agreement ; and that under
its terms defts. were not entitled to require
ptf. to show his lessor’s title. —Molloy v. Sterne,
1 Dr. & Wal. 585. (C.)

2. The general rule of equity is, that if it is
agreed that an act shall be done, and there is a
penalty for securing the performance of it; or
if it is agreed that an act shall not be done, and
the penalty is imposed in case the party do the
act—as, for instance, if a man agree to settle
his estate in a particular manner, and give a
bond for the performance of the agreement, he
cannot forfeit the bond and get rid of the
agreement, although the estate be worth more
than the amount of the bond; and, in the same
way, if the bond is to secure his not doing an
act, he cannot, by forfeiting it, enable himself
to do the act. French v. Macale, 4 I. E. R.
573 ; 2 Dr. & War. 269. (C.)

3. Construction of a contractto sell aleasehold
estate :—Whether the contract was to sell the
vendor’s interest, whatever it might be; or,
that a good title to the leasehold estate should
be made out ?

Under a contract to make out a good title to
a lease for lives renewable for ever, the vendor
must show who were the lives existing when
the contract was made.— Anderson v. Higgins,
1 Jon. & L. 718. (C.)

4. A., a tenant for life, granted an annuity to
B. for B.’s life, in consideration of £500. A
policy of insurance on A.’s life was assigned
absolutely to B., in order the more effectually
to secure the payment of the annuity, and the
repayment of the £500 ; and it was agreed that,
as soon as A. should give unexceptionable
security for the annuity, it should be decreased
by the amount of the annual premium, which B.
was to pay out of the annuity until such
security was given. No other security was
given. The premiums were paid by B. until
her death. Held, that the representatives of
B. were entitled to the policy, although several
annual premiums had been paid by A. after the
death of B.—Kavanagh v. Waldron, 91. E. R.
279. (C.)

5. A. demised to B. and his heirs, lands, and
reserved thereout all mines and minerals, with
liberty to enter and dig for same, and to hold
200 or 300 acres contiguous to the mines when
found, and an abatement or allowance for same
to be made to B., according to the rate of rent
reserved. A. found mines and selected land.
The court decreed a specific performance of the
contract, deciding that the clause in the lease
was a covenant, not a condition of re-entry.
Quere, whether it is not a condition ?

[AGREEMENT AND CONTRACT. ]

 

of Contract.

Semble, A. must take the lands in one place
and at one time. The court will not enter into
motives for enforcing the contract, or consider
whether the mines can be profitably worked,
though the contract would not be enforced if
they were worked colourably to give a claim to
the land.

The contiguity of the mines to the lands
being a question of fact, and determined by a
jury, Held, that the selection was proper, and
that A. was entitled to hold them during the
whole of -B.’s interest.

The rent was abated in proportion to the
quantity, not the quality of the land, and A.
was not bound to give compensation for im-
provements.—Croker v. Orpen, 91. E. R. 563 ;
3 Jon. & L. 589. (C.) :

6. An agreement in a memorial to demise lands
for three lives, ‘‘with a clause of renewal, pro-
vided the lessee, within six calendar months
from the death of the last of the said three
lives, should nominate such life or lives as he
would have inserted in any lease to be made
thereof, and paying, as well, all rent due for
the half-year after the fall of such life, as the
sum of £11 7s. 6d. for renewing or adding such
life or lives for ever,” is a covenant for per-
petual renewal.—Biggs v. Sadlier, 10 TI. E. R.
522. (E. E.) [See 4 H. Lds. Cas, 435.]

7. By marriage articles the husband agreed to
settle out of the lands of K., in failure of A.,
his daughter by a former marriage, a jointure
on his intended wife, the remainder of the
lands on the issue male begotten on the wife ;
and on failure of issue ,male on the issue female,
and if A. should survive, and K. should not be
made good, then K., not settled on the former
marriage, should be subject to the jointure, and
be settled on the eldest son of the marriage,
and in failure of that son, on the daughters of
the marriage. There was only female issue.
Held, that K. should be settled on them as
tenants in common in tail.—Stewart v. The
Marquis of Conyngham, 11. C. R. 534. (C.)

8. An agreement to demise lands for three lives
and 61 years. Held, to be an agreement for a
term after the death of the survivor, and not
for a concurrent term.—Blackhall v. Nugent, 5
LC. R. 323 (C.)

9. An order was made to appoint a receiver
over A.’s moiety of lands. B., the owner of the
other moiety, on condition that C. was ap-
pointed, consented that the receiver should be
appointed over both moieties. C. was appointed
over all and discharged for misconduct. A new
receiver was appointed. Held, that B. was
not bound to have the new receiver appointed
over his share, although there were annuities
charged on both moieties.—Gibson v. Wills, 5
I. Jur. 176. (R.)

10. P. agreed with the promoters of a railway,
then before Parliament, that their railway,
which would pass through his estate, might be
made upon these conditions :—that the com-
pany, if they obtained their Act, should pay
him £1,000 for all lands required by them,
besides £4,000 for residential injury ; that the
tunnel near his property should be made in a
What amounts to [AGREEMENT AND CONTRACT.] Constitution of.

specified way ; that they should make a station
at a particular place, &c. The company
obtained their Act, but never made the rail-
way. Held, that the true construction of the
contract was that the moneys were to be paid
only if the railway was made, and the land
used, since the whole contract must be con-
strued together ; and all the conditions contem-
plated the event that the railway would be
made.—Preston v. The Liv. Man. and New.
Ry. Co, 11. Jur. N. 8. 217.H.L. [8.6.5
H. Lads. Cas. 605.]

1, Althongh covenants are not to be construed
by parties’ acts, their conduct in relation to the
covenants may evidence the existence of a new
agreement.—-Hau-parte Pilkington, 4 I. Jur. N.
8. 102. (R.)

2. An agreement that a house should be held
for 31 years, with liberty to determine that term
at the end of the third, sixth, &c., year, should
it be so desired, of which determination six
months’ notice should be given ; and, if the tenant
desired to have a lease executed for the re-
mainder of the term, he was to be at liberty to
require it, subject to the conditions therein con-
tained, and to the usual covenants. Held, not
to give the landlord the option of determining
the tenancy.—Falion v. Robins, 16 I. C. R.
422. (R.)

3. A contract, to grant a lease for the same
term, namely, for lives renewable for ever, as
the contractor holds, does not, when made
after the passing of the Ren. Lease Conv. Act,
operate as an agreement for a f. f. grant.—
Forde v. Brew, 17 I. C. RB, 1. (R.)

 

IV. WHAT amMoUNTS TO AN AGREEMENT: ITS
ConstTiTUTION, VaLipiry, AND Lreariry.
Ll. Generally ; respecting uncertainty and
vagueness in them.

. As respects the Statute of Frauds.

. Presumed or implied agreements.

. Agreements by agent.

. Agreements by letter,

. Agreements against public policy, or

illegal. See CHAMPERTY.

. Agreements obtained by fraud, duress,
undue influence, under mistake, in igno-
rance, or which are unreasonable,

NS QoahPwnd

 

IV. 1. WHat amounts to AN AGREEMENT:
ITs ConstTITUTION, VALIDITY, AND LEGaLiry.

4, Q., on the marriage of his son, stated, in a
letter written by him to the mother of the
intended wife, his (Q.’s) intention to leave, at
his death, certain property to his son; and pro-
mised to pay him, in the meantime, an annuity.
Held, merely an expression of intention, not
an agreement.— Quinlan v. Q., H. & J. 785.
(E. E.)

5. C., seised of lands for a term of 21 years,
under the see of D., demised them to A. and
B. for 21 years, with a toties quoties covenant
for renewal. A. and B. sold part of the lands,
and made partition of the rest, each retaining for
his share sixteen acres. A. bequeathed his
share to his two sons; the share of B. was
sold to the ptf. After this sale the two sons of

 

25

A. obtained, without the ee of the ptt.,
a renewal of the entire of the lands, in
their own names, mortgaged them to M., and
brought an ejectment against the ptf.

The ptf. had filed a bill against M. and the
sons of A., and had obtained a decree, in 1826,
for an account anda reconveyance. The deft.
(the attorney who prepared the mortgage, and
conducted the ejectment) afterwards purchased
their interest, and paid off his mortgage. After
some negotiations, the ptf. being in distressed
circumstances, signed an agreement, stating
that he had surrendered his holding to the deft.,
consenting to an arbitration respecting a new
division of the lands, and to take them at an
increased rent. No actual surrender or lease,
in pursuance of the agreement, was proved.
Held, that there was no consideration for the
agreement, and that the ptf. was entitled to the
benefit of the decree of 1826, against the deft.
Patten v. Wallace, Long & T. 470. (E.E.)

6. The cases have established that if a party,
who has not any interest in an estate, enters
into a contract respecting it, and subsequently
acquires an interest, that interest will be bound
by that contract.—Jones v. Kearney, 4 I. E.
R. 82; 1 Dr. & War. 134. (C.) ‘

7. Upon a treaty of marriage between M. and
E., a minor, M. communicated to the guardians
of E. a letter from H., stating that he had, by
will, left his T, estates to M. The guardians
resolved that, until a suitable settlement should
be made by H., of real estate, in the usual
course of strict settlement, it was not advisable
that the marriage should take place. This
resolution was communicated to H., who wrote
to M.: ‘‘My sentiments respecting you con-
tinue unalterable ; however, I shall never settle
any part of my property out of my power so
long as I exist. My will has been made for
some time, and I am confident I shall never
alter it to your disadvantage. J repeat that my T.
estate will come to you at my death, unless some
unforeseen occurrence should take place ;” and
desired his letter to be communicated to the
guardians. The guardians consented to the
marriage, which was solemnized. H. devised
the T. estate to W. Held, that the letter did
not amount to a contract by H. to devise the T.
estates to M., and that H. might devise them
as he pleased.

Held, that if it amounted to a contract,
matters connected with the subsequent conduct
of M. were ‘‘ unforeseen occurrences” within the
meaning of the letter: and that H. alone was
to determine whether, upon their happening, he
should alter his will.— Maunsell v. White, 1
Jon. & L. 539. ; 7 I. E. R, 413. (C.) [Affd. 4
H. Lds. Cas. 1039.]

8. A., B., and C., and D., a minor, agreed to
form a partnership for nine years, unless sooner
dissolved by mutual consent: C. to pay £1,000
as her proportion of the capital; D. to be paid
£50 a-year salary for his services. At the expi-
ration of the third year, D., if he should have
conducted himself honestly and duly in the
discharge of his duty, ‘‘and to the reasonable
satisfaction of A. and B., was from thence to
become entitled to C’s share in the capital, and
to be substituted for her as a partner, his salary
26 What amounts to.

then ceasing. If C. should cease to be a
partner before then, her share was to become
D.’s property if he should not previously have
misconducted himself in the office which he had
in the partnership. After D. attained his age,
and before the expiration of the three years,
he, being refused further maintenance and inter-
ference in the business, filed a bill for speci-
fic performance of the articles, and to enjoin a
dissolution of the partnership. Held, on general
demurrer, that D., by filing his bill after his
majority, was bound by the agreement so as to
make it mutual; that sufficient consideration
moved from the ptf. to entitle him to enforce
the agreement ; that there was not such
ambiguity in the services to be rendered by him
as to prevent the agreement being specitically
executed ; but, that the performance of those
services to the reasonable satisfaction of A. and
B. was essential to ptf.’s rights; that they alone
were judges of this, and that the ptf. could not
enforce the contract against them.—WMilliken v.
M., 81. E.R. 16: (R.)

1. A. possessed, for a term of 820 years, of
lands and premises at B., in 1832 demised them
to C. for 800 years, ata rent of £140, subject to
the usual covenants to repair and pay the yearly
rent. C. entered and expended money on the
premises. Conceiving the reserved rent too high,
A., at his solicitation, in 1838, agreed by letter
to reduce the rent, ‘‘ in consideration of the per-
manent improvements made and promised to be
made,” to £130 per annum for the residue of the
term. C. continued making improvements, and
sublet at a fine to D. at the rent of £140. D.,
for £100, purchased from C. a similar reduction
in his rent, and thereupon A.’s letter was handed
from C. to D. A. received the reduced rent for
some years from D., but then insisted on the
full rent. On a bill filed by C., to which D.
was no party, against A. for a specific perfor-
mance of this agreement, Held, that the consi-
deration for A.’s promise to reduce the rent was
too vague and uncertain to allow a court of
equity to decree a specific performance.

Held, that there must be mutuality in the
agreement sought to be enforced.

Held, that D. ought to have been a party to
the bill.

Semble, the court would entertain a bill for
specific performance at the suit of D.—Morgan
v. Rainsford, 8 I. E. R. 299. (E. E.)

2. A. empowered to charge £500, and appoint
it among his younger children, by articles on his
first marriage charged it for the benefit of the
younger children of that marriage. He married
again. There were younger children of both mar-
riages. By will A. appointed nominal shares to
the children of his first marriage, and the bulk to
those of the second. Held, that, after the second
marriage, the articles became invalid as an ap-
pointment : that the power was controlled by
the articles, which amounted to a contract to
exercise it substantially in favour of the chil-

‘dren of the first marriage ; that the testamen-
tary appointment, too, was invalid; and the
fund should be divided equally among the
younger children of the first marriage, and those
of the second, asa class.—Greene v. G., 8I. E. R.
473. (C.)

[AGREEMENT AND CONTRACT]

 

Constitution of.

3. A compromise made after bill filed may be
relied on by answer, if it completely disposes of
the rights in question ; but if its validity be
doubtful, or it requires something further to
carry it into effect, a bill must be filed either to
execute or set it aside. Therefore, when the bill
claimed a share of property, and an agreement
was made to dispose of it and divide the proceeds
in a certain manner, which was never carried
out, and the agreement was impeached by
amendments in the bill, the cause was allowed
oe stand over.—Bristow v. B. 12 I. E. RB. 329.
©.)

4. One cannot sustain a suit to enforce an
agreement for the continuance of the ptf.’s perso-
nal services to the deft., as those services might
be rendered in a manner productive of injury
rather than benefit to the deft. The court does
not possess means to compel a person to fulfil his
duty to his employer under such a contract. It
was agreed that the deft. should ‘‘ continue to
employ the petitioner as salesman,” to dis-
pose of his stock in trade on terms, some of
which tended to show that a sale of that stock
to ;the petitioner was thereby intended, but
others positively showed that a relation ap-
proaching to that of shopman and owner was
for a time to exist between the parties. A peti-
tion praying specific performance of the agree-
ment was dismissed.

Semble, that deft. could not have maintained
a suit _to oblige the ptf. to discharge his duty
according to the. agreement.

Semble, that the omission to specify in the
agreement a date intended to be specified as that
at which an important obligation shall arise,
affords, on the ground of uncertainty, an ade-
quate reason for not enforcing the contract.—
Fitzpatrick v. Nolan, 11. C. BR. 671. (C.)

5. Semble, a contract entered into before mar-
riage, that the children shall be brought up in a
particular religion, does not bind the husband,
and cannot he enforced in a court of equity. Such
a contract, if binding, must be in writing, and
cannot be enforced in a minor matter by cause
petition.—In re Browne, 21. C. R. 151. (R.)

6. Cross demands arising in different rights
cannot be made the subject of set-off.

The court will not, without evidence, and
from the mere nonpayment of any sum by
either party, presume an agreement that one
demand should be set off against another.

A. was tenant for life of an estate on which
B. had a charge. B. was indebted to A. by
judgment, and in a sum for contribution. No
interest was paid by A. to B. from 1838 for ten
years, during which time A. continued in pos-
session of the estate ; nor was any sum paid by
B, to A. during that time. Held, after the
death of both, that there could be no set-off of
one demand against the others, as A. was not
personally liable, for the interest and the de-
mands were of a different nature.

That the court would not, in the absence of
direct evidence, presume an agreement for a set-
off.—Baldwin v. B., 31. C. R. 388, (R.)

7. A Ry. Co. served a notice to treat for the
purchase of land. Persons in their employment,
who were, or acted as if they were, authorized
to fix the price, obtained the landowner’s sig-
What amounts to.

nature to a printed form of agreement fixing the
sum. Held, that the company were bound to
specifically perform this agreement, though not
signed by them under their corporate seal.

Semble, an award made after the date of
the agreement, and under the landowner’s pro-
test, by the arbitrator appointed pursuant to 14
& 15 Vic., c. 70, was a nullity.

Semble, had the price been ascertained by
parol only, after service of the notice to treat,
the contract would ‘still have bound them.—
pane v. D. & Bray Ry. Co. 31. C. R. 225,
(C.)

1. In 1840, the petitioner contracted to pur-
chase a leasehold interest from the respondent,
and went into possession, andpaid part of the pur-
chase-money. The contract was not completed,
by reason of a recognizance being outstanding
which was to be vacated at the death of a lunatic,
which occurred in 1850, when the petitioner, at
the respondent’s instance, gave a promissory
note for the balance of the purchase-money. A
sum was found due on foot of the recognizance,
for which judgment was entered. The lands
were in the meantime evicted for nonpayment
of rent, but the time for redemption had not
expired. The court refused an injunction against
proceeding on the promissory note, except on
the terms of lodging its amount in court.—Car-
ter v. Uniacke, 41. C. R. 30. (B.)

2. The owner of an estate, advertised to be sold
in the I. E. Court, signed an agreement out of
court, that M. should be declared the purchaser
for the amount of the incumbrances, provided
they did not exceed £37,000 ; if they were
under that sum, the purchaser was to pay the
balance to the owner, and if they exceeded that
sum the purchaser was to be paid the excess by
the owner, who was to get a lease of a portion
of the lands, and the arrears of rent. The Com-
missioner, on the day of sale, refused to adopt
the agreement, and thereupon another agreement
(which the owner impeached as obtained by
surprise and fraud) was signed, that the owner
should have no claim against M. save for the
sum mentioned in the first agreement, and that
M. should not be bound to lodge in court any
sum save such as would cover the charges and
costs to which the estate was liable ; and that
if he was obliged to lodge more than £37,000
the surplus should be drawn out by him. The
estate was immediately afterwards set up to
auction, and sold to M. for £41,775. Held, re-
versing the decision below, that the court could
not recognise the agreement, as it was a fraud
on bona fide bidders, and, therefore, M. was
bound to bring in the surplus, without prejudice
to his establishing his right to it by an inde-
pendent proceeding.—In re Ashe, 41. C. R.
594. (P. &)

3. To entitle a creditor to prove against the
joint estate ofa firm, for a debt which was origi-
nally theseparate debt of one partner, there must
be either a positive agreement to adopt the debt
as that of the firm ; or facts from which the court
will be justified in deducing an agreement: or
consent to that adoption. That the money lent
to one partner has been ultimately applied to
the purposes of the firm is not sufficient. —Jn re
Ferrar, 93. C. R. 11. (B.)

[AGREEMENT AND CONTRACT.]

 

As to Statute. 27

4, In 1857, a landlord wrote this reply to his
tenant’s application : ‘‘1 will give you a lease
of one life, or 21 years, containing the usual
covenants,” &c. The tenant wrote, ‘‘in reply
to your letter, I beg to propose paying you for
all the land I hold in E. 30s. per Irish acre, sub-
ject to survey, from the first of May next, As
to a lease, you may do that as you please, and
whatever you choose to insert in it, as I only
want the land during my life, which is now mid-
way between sixty and seventy.” The landlord
answered: ‘‘I conclude that you meant to add,
‘and so in proportion to any fractional part of
such Irish acre.’ If so,.I agree to complete that
proposal. I will have a survey made as soon as
possible,” &c. He afterwards wrote: ‘If you
have a wish for any particular life to be named
I will leave it to you to do so.” In another
letter: ‘‘I think you said that you wished
for the lands only for your own life. If that be
so, I am willing to meet your wishes.” A dis-
pute arose touching the quantity of land. No-
thing further was done until 1859, when the
tenant furnished a draft lease for the life of the
Prince of Wales, adopting the landlord’s mea-
surement. After the tenant’s death, the court
refused specific performance.

Letters will not constitute an agreement
which the court will specifically perform, unless
the answer is a simple acceptance, without the
introduction of a new term.— Wright v. St.
George, 12 I. C. R. 226. (R.)

5. T., the owner of lands, on the 26th July,
wrote to F., his tenant, requesting him to send
a proposal to take a farm, at the rent of £170 for
one life. F., on the 8th August, sent a proposal
for thefarm at that rent, for one life or twenty-one
years. F., on the 13th, wrote that he would get
the ‘‘ lease filled up in Dublin.” Held, that there
was not any finally concluded contract.—Finu-
cane v. Turner, 13 1. C. R. 488. (C.)

6. F., tenant of C. for a term of years, agreed
“to let unto G. the house and demesne of C., in
as large and ample a manner as the same is now
held by F., at the rent of £48 per annum, for
and during a term equal to the term which F.
has of the same, leaving him full power of eject-
ment, andright of distraint in case of nonpay-
ment of rent: G. to have a power of surrender,
by giving six months’ notice in writing.” Held,
an agreement for a sub-lease, not an assign-
ment.—Palmer v. Spring, 14.1. C. R. 380. (C.)

7.8. owing E. £15,000, and having covenanted
to secure it on land, agreed to purchase lands
from E. ; and to give, as part of the considera-
tion, a mortgage of these lands, ‘‘subject, how-
ever, to a prior mortgage for £15,000.” Held,
that these words did not charge the £15,000,
upon the purchased land. —Hyre v. Sadleir, 15
IC. R.10. (C. A.)

IV. 2.—As respects the Statute of Frauds.

8. A. signed notice in writing, referring to a
written unsigned proposal made several years
before, may be so connected with it as to render
the two documents a contract sufficiently signed
within the Statute of Frauds.—Lowry v. Duf-
Jferin, 11. E. BR. 281, (C.)
28 What amounts to [AGREEMENT AND CONTRACT.]

1. Semble, the signature of the party to be
bound suffices to satisfy the Statute of Frauds so
as to enable the court to enforce specific perform-
ance.—Field v. Boland, 1 Dr. & Wal. 37. (C.)

2. Continuance in possession by a tenant from
year to year, to whom a lease for twenty-one
years has been verbally promised, is not a suffi-
cient part performance to take a case out of the
Statute of Frauds.

Any act, which may be referred to a title
distinct from the verbal agreement of which
specific performance is sought, cannot be con-
sidered as a part performance thereof, to take
the case out of the statute. — Brennan v. Bolton,
2 Dr. & War. 349. (C.)

3. The grandmother B. of the lady D. signed a
memorandum drawn by her agent, stating that
she intended to leave D. £2,000 at her death,
to be secured by a bond, as a provision for her
on her then intended marriage. On the same
day B.’s agent, by her directions, wrote to the
intended husband A., stating that B. intended
giving D. £2,000 at her death, and her house
at C. The agent shortly after wrote to B.,
stating A.’s wish to have her bond, and also the
house she intended giving; and that he had
referred A. to her solicitor. That letter was
read to B., who gave it to D., saying, that it
related to her affairs. The marriage was solem-
nized. The grandmother died without having
executed either bond or conveyance. Held, a
sufficient agreement in writing within the Sta-
tute of Frauds.

A contract upon marriage, as well as one upon
the sale of land, may be made out from a cor-
respondence,—Saunders v. Cramer, 3 Dr. &
War. 87; 5 L. E. R. 12; nom. Greene v. Cramer
2 Con. & L. 54. (C.)

4. The respondent, owing A. £625 secured by
a judgment, wrote to him, ‘‘ You having a judg-
ment against me, I undertake that if I do not
pay the sum secured thereby on or before the
10th of October, 1852, I will give you a legal
mortgage on all my landed property.” A., before
that day filed a petition in the 1. E. Court to
raise the amount of the judgment, and after-
wards filed this petition for specific performance
of the agreement to grant a mortgage.

Held, that the above document did not dis-
close any consideration, and was consequently
invalid within the Statute of Frauds ; or that
the implied consideration, if any, had failed.

An antecedent debt is not, in contemplation
of a court of equity, consideration for an agree-
ment to mortgage.—Crofts v. Feuge, 41. C. R.
316; 6 1. Jur. 160. (C.)

5. W. assigned a leasehold house to I., upon
certain trusts, leaving to W. aresulting interest
in the residue of the rents. W. afterwards gave
R., a creditor, the following letter: ‘‘I have
handed to you a policy of insuranceas a collateral
security for my debt, the premiums on said policy
to be paid out of the balance profit-rent arising
from the house assigned to I.” On this letter,
I. wrote by way of endorsement, ‘‘I agree to
pay the premium of the within-mentioned policy
to R. out of the profit-rent arising from the said
house.”

 

by Letter.

Held, that these documents amounted to a
complete declaration of trust, and that no con-
sideration was required to give them validity.

Semble, that if consideration were required,
the first letter did not amount to an agreement
sufficient to satisfy the Statute of Frauds.

Semble, an antecedent debt is not in the con-
templatiou of acourt of equity, a consideration
for a security on lands.— Woodroffe v. John-
ston, 4. I. C. R. 319. (C.)

IV. 3. Presumed or implied Agreements.

6. A promise by letter to reduce the rent of a
farm ‘‘in consideration of the permanent im-
provements made and to be made,” together
with receipt of such reduced rent for a short
time, the tenant in the meantime making the
improvements, is not sufficient ground for pre-
suming an agreement for such reduction of the
rent permanently.—Morgan v. Rainsford, 8 I.
E. R. 299. (E. E.)

7. Cross demands, arising in different rights,
cannot be made the subject of set off. The
court will not, without evidence, and from the
mere nonpayment of any sum by either party,
presume an agreement that one demand should
be set off against another.

A. was tenant for life of an estate on which
B. had a charge. B. was indebted to A. by
judgment, and in a sum for contribution. No
interest was paid by A. to B., nor was any
money paid by B. to A. for ten years, during
which A. continued in possession.

Held, after the death of both that there could
be no set off of one demand against the others, as
A. was not personally liable for the interest, and
the demands were of a different nature.

That the court would not, in the absence of
direct evidence, presume an agreement for a
set off.—Baldwin v. B. 3. I. C. R. 388. (R.)

8. The fact thatmoney lent to one member of a
firm has been ultimately applied to the purposes
of the firm is not sufficient ground for presum- -
ing an agreement, binding the firm as to the
loan.—In re Ferrar, 91.C. R. 11. (B.)

IV. 4. Agreements by Agent.

9. A. verbally agreed to sell premises to B.
Being unable to agree upon the price, A. wrote
to C. stating that he would take from B. a
named sum, and reserve for his (A.’s) sister a
small portion of the premises, if C. approved.
B. lodged that sum with C., who made a memo-
randum of the lodgment on A.’s letter, and
appended the remark, that it was ‘‘a great
price.” Held, that C. must be deemed A.’s
agent, and that A. was bound to perform the
agreement, since C. had signed it.—Wield v.
Boland, 1 Dr. & Wal. 37. (C.)

IV. 5. Agreements by Letter. See supra,

+, 1, 2, 3.
10. A. having been informed that an eligible
offer of marriage had been made by the plaintiff
to his grandniece, wrote to her mother :—‘‘I
What amounts to [AGREEMENT AND CONTRACT. ]

have always told you what I intended leaving
her, which is £2,000, and which I am now also
ready to settle on her, provided there is a
proper settlement made on her, and all matters
arranged to your satisfaction.” He had pre-
viously desired that no communication should be
made to him till the match was off or on. The
plaintiff answered the letter ; offered to settle an
equal sum, and stated that he waited A.’s reply.
Immediately before the marriage, A. by letter
expressed disapprobation of the match, and
saying that the plaintiff's father should come
forward. This letter was not shown to the
plaintiff until just before the marriage cere-
mony. He made a suitable settlement; the
lady’s mother was satisfied ; and he was after-
wards well received by A.

After A.’s death this suit was instituted to
raise £2,000 out of his assets, as a marriage
portion due to the plaintiff by written agree-
ment. Held, that A.’s promise had never become
an absolute one ; and that there had not been
any representation on the faith of which the
marriage had been brought about, such as would
give the plaintiff a claim on A.’s assets.— Madox
v. Nowlan, Beat. Rep. 632. (C.)

1. Q., on the marriage of his son, stated, in a
letter written by him to the mother of the
intended wife, his (Q.’s) intention to leave, at
his death, certain property to his son ; and pro-
mised to pay him, in the meantime, an annuity.
Held, merely an expression of intention, not an
agreement.— Quinlan v. Q., H. & J.785. (E. E.)

2. Upon a treaty of marriage between M. and
E., a minor, M. communicated to E.’s guardians
a letter from his uncle H., stating that H. had
devised his T. estates to M. The guardians
resolved that it was undesirable that the mar-
riage should be solemnized until M. made a
settlement of real estate. This resolve was
communicated to H., who wrote to M.: “My
sentiments respecting you continue unalterable ;
however, I shall never settle any part of my
property out of my power as long as I exist.
My will has been made for some time, and I am
confident I shall never alter it to your disad-
vantage. I repeat that my T. estate will come
to you at my death, unless some unforeseen
occurrence should take place.” H. desired
that this letter should be communicated to the
guardians, who consented to the marriage. It
was solemnized. H. devised T.to W. Held,
that the letter did not amount to a contract by
A. to devise T. to M., but that H. might dis-
pose of T. as he pleased.

That, supposing the letter amounted to a
contract, matters connected with M.’s subse-
quent conduct were ‘‘ unforeseen occurrences”
within the meaning of the letter; and that H.
alone was to determine whether, upon their
happening, he should alter his will.—Maunseli
v. White, 71. E. R, 413; 1 Jon. & L. 589. (C.)
[Affd, 4 H. L. Cas. 1039.]

3. Where a father assigned property to a son
for the purpose of giving a qualification, and by
a letter the son promised to pay the father a
rentcharge out of the lands equivalent to the
rents, the court refused to enforce the arrears of
the rentcharge, holding the transaction to be

 

by Letter. 29

only colourable.—In re: Johnstone, 8 I. E. R.
207. (R.)

4, A purchase upheld, which was agreed to
when the vendor was dying; the consideration
being an annuity for his life, and the vendor
having afterwards acquired the legal estate, and
the agreement having been made in pursuance
of a contract made out by letters written some
months before the final agreement.—Barry v.
O'Grady, 9 1, E. R. 550. (C.)

5. Where A., on her daughter’s marriage, pro-
mised the husband by letter to leave her
daughter £2,000 by will, in preference to a
settlement ; and A. subsequently died, leaving
her daughter but £500. eld, that a bill lay
by the husband against the personal represen-
tative of A., the letters amounting to proof of
an intention to make an irrevocable settlement
of the £2,000 on the daughter.—Arthure v.
Dillon, 2 I. Jur. 162. (C.)

6. A written proposal to take lands at a rent
of £1 5s. per acre, for three lives or 31 years, was
sent by F. to a tenant for life, who replied that
he had not power to execute such a lease, but
‘if you choose to take a lease in the usual way
I will allow you £20 to get up a cottage, and a
lease for your own life.” F. remained in pos-
session of the lands, but continued to pay the
old rent, which was less than £1 5s. per acre,
and never made any claim for £20. Held, that
the proposal, answer, and subsequent occupa-
tion did not constitute a sufficient agreement to
bind the remainderman.

F. entered into an agreement for a lease with
a tenant for life. The agreement did not bind
the remainderman. In March, 1854, the
tenant for life being dead, F. communicated the
contract to the remainderman’s agent, request-
ing the grant of a lease. The remainderman
refused to execute it. In April, 1854, the agent
informed F. that he had been directed to serve
notices to quit on all the tenants, but that he
would not serve F..if he sent a proposal to pay
£1 5s. per acre (the rent reserved by the alleged
agreement). F, replied by setting out the agree-
ment, and stating that he was not tenant from
year to year; but saying that he left his case in
the agent’s hands for the present, ‘ particularly
as a lease will not be granted on any part of
this property.” Afterwards, F. expended large
sums in improving his farm. Notice to quit
was served on F. in 1856. Held, that F. was
not entitled to specific performance against the
remainderman of the invalid agreement. —
O’ Fay v. Burke, 81. C, R. 225. (R.) [Affirmed,
Ibid. 511. C. A.]

7. A., hearing that 4 marriage, to which he
had not assented, had been fixed between his
daughter and B., signed and sealed a document
by which he agreed to settle, assign, and make
over to his daughter, on her marriage with B.,
a house, free of all rent, for his own term
thereof, to the purpose that it should be settled
on herself and her issue by B. ; and to execute
any further instrument:or conveyance of the
same which counsel should advise or deem
necessary to carry out that assignment to his
daughter as a marriage portion. That docu-
ment was enclosed in a letter to B., wherein A,
30 Validity of.

expressed his ultimate intentions respecting the
remainder of his property to be that, after the
death of himself and his wife, part should go to
his sons, and part be divided, share and share
alike, among his three daughters, with such
arrangements as should secure the property to the
family, so that the portion of any one dying
without’ issue should pass, not to strangers, but
to other branches of the family. The letter
reached B. on the morning of the wedding
which, having been previously fixed, was so-
lemnized. B.’s wife separated from him on
account of his violence ; and B. filed this cause
petition in her name and his own for specific
performance of the agreement, by an assignment
in trust for B. for life, or until bankruptcy or
insolvency ; then to his wife to her separate
use; after their death, to the issue of the mar-
riage ; if no issue, to B. absolutely.

Semble, the agreement should be carried into
effect by settling the house to the wife’s separate
use for life ; upon her issue, if any, after her
death ; or upon her, without any limitation, to
her separate use.

Held, that the letter would not be enforced
as an addition to the agreement, or as itself con-
taining a binding agreement.

That it would not be enforced as a represen-
tation, because the marriage did not take place
on faith of it; and there was a written con-
tract executed by A.

The petition stated the agreement as one that
B. should have a life interest in the house.

Held, that the document did not support that
case, and that the petition should be dismissed.

That the wife’s interest was inconsistent with
B.’s and that she should not have been joined
as a co-petitioner.—Kirwan v. Burchell, 10 I.

C. RB. 63. (R.)

 

IV. 6. Agreements against Public Policy, or
illegal. See CHAMPERTY.

1,.A was entitled to an estate in remainder
expectant upon the death of B., without male
issue. B. was twice married. By his first
wife he had only issue female; by his second,
the sister of his first wife, he had male issue.
A. threatened to institute proceedings in the
Keclesiastical Court to annul the second mar-
riage, and declare the issue thereof illegiti-
mate. A compromise was entered into by arti-
cles of agreement, the consideration on the part
of B. being a certain provision for the children
of A., and on the part of A. a covenant not to
impeach the marriage of B. After the death
of B. his executor and eldest son filed a bill to
set aside this agreement.

Held, that the agreement was not inconsistent
with the policy of the law, or the principles of
a court of equity.

An agreement in consideration of compound-
ing a prosecution for felony is void.

ut an agreement to make the prosecutor of
a private misdemeanour, of a private nature,
and occasioning a private injury, a reasonable
satisfaction in consideration of proceedings being
stayed, may not be illegal.

The cases on the subject go to this, that if
the prosecutor has himself a personal interest in
the matter, and it affects his property, he may
consent to waive the prosecution.

[AGREEMENT AND CONTRACT.]

 

Public Policy.

If the proceedings in the Ecclesiastical Court

-had been for punishment merely, an agreement

to stay it would have been void.

Family arrangements, for the purpose of put-
ting an end to litigation, and especially on ques-
tions of legitimacy, are much favoured by the
court.— Westby v. W., 2 Dr. & War. 502, 519;
41. E. R. 585; 1 Con. & L. 537. (C.)

2. A solicitor, acting for minors in a matter
and several causes, agreed, without giving notice
to the court or the minors’ friends, to hand over
to another, who agreed to undertake it, the mi-
nors’ business, and to conduct it in the former’s
name, upon getting half the profits. The court
refused to enforce this coutract, though in pur-
suance thereof the transferree had for a year
conducted the business, and made large expen-
ditures—the contract being at variance with
the minors’ interests and the court’s policy.
Both parties being in pari delicto, the court
would not act for either of them.—Zu-p. Leech,
5 I. E. R. 371. (B.)

3. ‘No authority has been cited, and I think
it will be found that no authority could be cited,
to sustain the proposition that a contract which
is void, as being contrary to public policy (and
which I take to be in the same predicament as
if it were in contravention of an express statute),
can afterwards be capable of confirmation by
the acts of the parties: if I mistake not; the
authorities are numerous the other way.”—
Willins v. Tandy, 5 I. E. R. 5. (R.)

4. Semble, A contract, partly legal and partly
illegal, may, if the illegal part be not malun in
se, and rests in understanding only, be specifi-
cally performed by decree, so far as it is legally
capable of execution.—Carolan v. Brabazon, 9
I.E. R. 224. (C.)

5. A. B. and C. agreed that B., in considera-
tion of money, should surrender his lease to C.,
who should make a new lease to A., who should
subdemise it to B. at a rent equal to £9 per
cent. on the consideration money. Semble, the
agreement is not void for usury.—Dowling v.
Legh, 9 I. E. R. 413. (C.) .

6. The owner of an estate advertised to be
soldin the I. E. Court, signed an agreement out
of court, that M. should be declared the pur-
chaser for the amount of the incumbrances, pro-
vided they did not exceed £37,000. If they were
under that sum, the purchaser was to pay the
balance to the owner; if they exceeded that
sum, the purchaser was to be paid the excess by
the owner, who was to get a lease of a portion
of the lands, and the arrears of rent, The
Commissioner, on the day of sale, refused to
adopt the agreement. Thereupon another agree-
ment (which the owner impeached as obtained
by surprise and fraud) was signed, that the
owner should have no claim against M. save for
the sum mentioned in the first agreement ; that
M. should not be bound to lodge in court any
sum save what would cover the charges and
costs to which the estate was liable ; and that
if he was obliged to lodge more than £37,000,
the surplus should be drawn out by him. The
estate was immediately afterwards sold by
auction to M. for £41,775. Held, reversing
Validity of.

the decision below, that the court could not re-
cognise the agreement, as it was a fraud on
bona fide bidders; and that M. was bound to
bring in the surplus, without prejudice to his
establishing his right to it by an independent
proceeding.—In re Ashe, 41. O. R, 594. (P.C.)

1. A husband, B., and wife were living sepa-
rate in consequence of B.’s adultery, against
whom proceedings were about to be taken in the
Consistorial Court for a divorce and alimony.
A negotiation took place, which resulted in an
agreement, which was carried out by two letters
signed by B. One was directed to the wife’s
father. By it B. undertook to pay his wite
£60 a year, half-yearly, during the time they
lived separate, and to pay her the one-fourth
part of any gross sum he might enjoy from any
permanent employment in his profession as an
engineer. The other letter was directed to B.’s
brother, on whose estate B. had a charge,
authorising him to pay the £60 a year.

Held, in a suit for specific performance by
the wife and her father—

That the agreement was in the nature of a
family arrangement, and for sufficient conside-
ration.

That as the husband and wife were separated
at the time, the agreement was not contrary to
the policy of the law, and might be enforced.

That the agreement was binding on B., asa
personal contract to pay a separate maintenance,
which the court would enforce by its decree,
although there might be a remedy at law.—
Bucknell v. B., 7 1. C. R. 180. (R.)

IV. 7. Agreements obtained by Fraud, Duress,
Undue Influence ; under Mistake, or in Ig-
norance; or which are unreasonable.

2. A., possessed of lands for twenty-one years
under a see, demised them to V. and X. for
twenty-one years, with a é. g. covenant for re-
newal. V.and X. sold part, and partitioned
the rest between them. V. dying, bequeathed
his share to his two sons. Ptf. bought the share
of X, Afterwards V.’s sons, without ptf.’s know-
ledge, obtained a renewal of the whole of the
lands in their own names ; mortgaged them to
M.; and brought an ejectment against ptf. who
had filed against them and their mortgagee a
bill, and obtained a decree for an account and
a reconveyance. Deft. (the attorney who pre-
pared the mortgage and conducted the eject-
ment) bought the interest of the mortgagors,
and paid off the mortgage. Ptf. being in distress,
signed an agreement stating that he had surren-
dered his holding to deft.; consenting to a re-
ference to arbitration respecting a new division
of the lands, and to take them at an increased
rent ; but no actual surrender, or lease in pur-
suance of the agreement, was proved. Held,
that there was not any consideration ; and that
ptf. was entitled to the benefit of the former
decree against deft., who was decreed to pay
costs.—Patten v. Wallace, Long: & T., 470.
(E.E.) [See S. C., 12 Cl. & F. 491.)

3. Specific performance of an agreement to sell
lands decreed, although the seller was in prison
when the contract was entered into.—Brinkley
v. Hann, Dr. Rep. t. Sug. 175. (C.)

|AGREEMENT AND CONTRACT.] Fraud, Pluress.

 

31

4. Decree for specific performance of a written
contract, whereby the respondent, B. ,agreed with
the petitioner, A., to assign to A. the interest in
the lease of a farm; and give him possession of
the house and Jand, &c.; B. continuing with A.
as a member of his family, and receiving her
board, washing, and lodging as theretofore. A.
agreed, in consideration of the assignment, to
pay B. £10 a year, during her life. Held, that
violent conduct on A.’s part towards his wife,
no actual assault on B. having been proved,
was not a valid defence against the execution of
the contract.—Finney v. Pardy, 91. C. R. 347.
)

5. An instrument, which agrees with the in-
tention of one of the parties, though mistaken as
to that of the other, cannot be reformed, Fal-
lon v. Robins, 16 I. C. R. 422. (R.)

 

V. BREACH oF.

6. An agreement between an author and pub-
lisher stipulated, that the work (a periodical)
was to be sold to the public at the price of one
shilling a number. 2,000 copies were sold to a
bookseller at w reduced price. The author
claimed to be compensated in respect to them
out of the estate of the publisher, who had be-
come bankrupt. Held, that there had not been
any breach of the agreement.—Jn re Curry, 12
I. £. R. 382. (B.)

7. The respondent, B., a proprietress of baths,
wrote to the petitioner, A., a constable, that if
he would take the management of the baths,
she would engage to give him £50 a year, with
coals, light, washing, and a percentage on the
profits; and would guarantee him for life a
sum equivalent to his present pay and future
pension, payable, if the baths failed, or she dis-
posed of them. A. accepted the offer. B. then
wrote: ‘‘ When you come up to town, I will
have a deed got ready for you, securing you for
life the same pension you would get after ser-
vice in the police; and any property I leave
will be liable to this charge. I tell you this
that none of your friends may be uneasy, though
I know you would not be uneasy yourself, but
feel sure that my word would be as good asa
bond ; still, to prevent any loss to you from an
accident, you shall have a bond to secure you.
As to your salary, you will have the whole of
the payments to make weekly to all the people,
as well as to yourself ; so there is no occasion to’
make any mention of that in the deed of pen-
sion,”

Held, that A., if he voluntarily left B.’s ser-
vice, would not be entitled to a specific perfor-
mauce ; and that the contract being for hiring
and service, the court would not decree a spe-
cific performance.

Semble, the agreement is too uncertain to jus-
tify a decree for specific performance. —Gillis v.
M'Ghee, 13 I. C. R. 48, (R.)

 

VI. Warver oR VARIATION OF, AND
DiscHARGE FROM.

8. A principal, V., agreed to sell to his agent,
X., part of his estate; but, when he made the
agreement, was unaware that that part included
32 Waiver of.

the only turf bog on the estate. There was not
any concealment, nor apparently any know-
ledge by X., of that circumstance. V., by will,
named X. a trustee for sale. X. assisted his
co-trustees ; and did not insist on performance
of the agreement until after the lapse of nearly
a year from V.’s death, nor until after the estate
had been advertised for sale. Held, that V.’s
ignorance touching the turf bog, afforded suffi-
cient ground for refusing to enforce specific per-
formance, and that X.’s conduct after V.’s
death amounted to a virtual abandonment of
the agreement.— Chambers v. Betty, Beat.
Rep. 488. (C.) :

1. Parties who have acquiesced for a long
period, such as twenty-three years, under an
agreement, will not be permitted to impeach it
on grounds of alleged illegality.— Westby v. W.,
41. E.R. 585; 1 Con. & L. 537; 2 Dr. &
War. 502. (C.)

2. An agreement was made for eleven twenty-
one parts of lands for a term of 999 years.
A lease was subsequently executed conformably
to the agreement. After litigation between the
representatives of the lessor and those of the
lessee, it appeared that the lessor had power to
demise only six twenty-one parts of the lands.
By articles of agreement they agreed that a lease
of the six twenty-one parts should be granted
for the residue of the original term, and that a
new lease of the five twenty-one parts should be
granted for a similar term, ‘‘both rents to be
paid over and above all charges and deductions
except quit and crown rents.” By the lease of
the six twenty-one parts, the tenant was made
liable to the amount of the tithe rentcharge m
addition to the rent, but by the lease of the five
twenty-one parts, the rent was reserved in the
words of the articles, and there was no provision
in it as to the rentcharge. The lessor filed his
bill to correct it by adding the amount of the
rentcharge to the rent. He tendered parol
evidence to show that such was the agreement,
and that it had been omitted from the articles
through a mistake as to the tenant’s liability
under the 1 & 2 Vic. ¢. 119.

Held, that parol evidence could not be ad-
mitted to show the intention of the parties ; that
under the lease the landlord was liable to the
rentcharge, and that the previous written
agreement did not authorize the court to correct
the lease in that respect.

Semble, the court will, by adding the rent-
charge to the rent agreed on, perform an agree-
ment entered into since the passing of Stanley’s
Act, to grant a lease at a certain rent over and
above the tithe rentcharge.—Davis v. Fitton,
41. E. R. 612; 2 Dr. & War. 225. (C.)

3. The waiver of a contract is itself a contract,
and must be acquiesced in by both, parties.
When relied on against a tenant, it must be
established by clear and unequivocal evidence.

Specific execution of an agreement to lease at
a certain rent, with an understanding that the
tenant was to pay the tithe rentcharge and
poor-rate, decreed by directing the execution of
a lease at a rent equal to that agreed on plus
the tithe rentcharge, a lease for a longer term

[AGREEMENT AND CONTRACT. ]

 

Waiver of.

having been prepared at that rent by the
agent of the landlord without his authority, on
the tenant’s representation, and executed by the
tenant, and the rent so reserved having been ac-
cepted by the landlord.

Semble, a contract partly legal and partly
illegal, if the illegal part be not malum in se,
and rests in understanding only, may be spécifi-
cally performed so far as it is legally capable of
execution.—Carolan v. Brabazon, 9 I. E. R.
224, (C.)

4, Conversations in which the party stated
that his interest was different from that provided
by the agreement ; and a letter applying to the
landlord for a different interest. Held, not an
abandonment of the agreement.— Moore v. Crrof-
ton, 91. E. R. 344; 3 Jon. & L. 438. (C.)

5. One of the conditions of sale of a leasehold
interest provided that a deposit of £25 per cent.
would be required as soon as the purchaser was
declared, ‘‘ the balance to be paid on the deeds
being perfected, which must be on Thursday
next, when possession will be given.” Through
the purchaser’s default, the purchase was not
completed on that day, though the vendor had
arranged to leave the country on it. The pur-
chaser filed a petition for specific performance.
The respondent’s answering affidavit insisted
that time was of the essence of the contract, and
that he had not waived his right so to insist.
The replying affidavits went into evidence to
establish a waiver. Held, that time was of the
essence of the contract ; and that the evidence
of waiver was inadmissible, no such case having
becn made by the petition. —Barry v. Burns, 3
I. Jur. N.S. 97. (C.)

6. The Board of the College of Physicians
resolved that B. should be accepted of as a tenant
of a farm for 31 years, at a rent of £1 10s. an
acre as the nominee of P., a former tenant, who
had by another resolution been allowed to dis-
pose of his interest. F., the solicitor of B.,
acting under a general authority, wrote to the
solicitor of the College that, in consequence of
the dangerous iliness of B., he had not finally
concluded with P., and could not take out the
lease. Held, that the letter amounted to a
waiver of B.’s right to the lease.

Quere, whether, if there had not been any
waiver, P. could have compelled the execution
of a lease to the representative of B., who was
a banker, and would not have resided on the
farm ?—Power v. College of Physicians, 7 1.C.R.
104, (B.)

7. In April, 1854, A. contracted to let lands
to B. at an occupation rent. The written agree-
ment provided, that leases should be taken out
within three months. Immediately B. went
into possession, and in May, 1854, tendered a
draft lease to A., who refused to execute it. In
Jan., 1856, A. sold the lands to C., who had
notice of the agreement. In June, 1856, C.
tendered to B. a deed of attornment, describing
B. as tenant from year to year, which B. refused
to execute. In March, 1857, C. served on B. a
notice to quit. In May, 1857, B. filed this
petition. Held, that there was not any aban-
donment of the lease, nor any waiver such as
disentitled B. to specific performance of the
Spec. perf.

contract.— Brophy v. Connolly, 7 1.C. R. 173;
3 L Jur. N. 8. 330. (C. A.)

1, Letters and conversations after a notice to
quit had been served by the landlord, there
being a conflict of evidence as to the result and
object of the conversations. edd, not a waiver
of an agreement for a lease.—-Cartan v. Bury,
10 I. C. R. 387. (R.)

2. Although a respondent may rely, by way
of defence, on a parol variation of a contract,
that variation must be clearly established. lf
there be a conflict of testimony, the court will
not, on that ground, refuse relief.

An instrument, which agrees with the inten-
tions of one of the parties thereto, although not
with those of the other, cannot be reformed. —
Fallon v. Robins, 1€ I. C. R. 422. (R.)

 

VIL. Satisraction or—See SETTLEMENTS,
VII.—Porrions, XII.

VIII. Spectric PERFORMANCE.

1. By and against whom.
2. In what cases.
(a) Generally:
. forcing.
1. When the court can and will en-
force an agreement.
2. When the court cannot, or, because
of laches, &c., will not enforce it.
(b) When value, cc., is misdescribed or
misrepresented, on agreement for
sale, &c.: deterioration of estate,
ce. : when specific performance will
be decreed with compensation.
(c) When there has been part perfor-
mance.
(d) In cases of voluntary agreements.
(e) In-cases of stock, chattels, &c., and
other personal property.

suits for: mode of en-

 

VIII. Sprcrric PERFORMANCE.

.

I. By and Against Whom.

3. A., seised in fee of premises subject to a
quit rent, agreed with B. (his attorney, and te-
nant of a portion of the land) to sell him the
reversion of that portion. B. bound himself, his
heirs, executors, &c., and that portion of the
lands, to pay the whole quit rent. __

A. conveyed the reversion to B. by a deed
wherein B. covenanted, for himself, his heirs.
executors, &c., to pay the whole quit rent, and
to indemnify A., his heirs and assigns, and his
and their estates, real and personal.

About that time A. sold to C, the residue of
the premises, discharged of all quit rent. This
residue vested in the plaintiff, who, having been
obliged to pay the whole quit rent, filed his bill
against D. (heir, devisee, and administrator of
B.), praying that the sums paid by the ptf. for
quit rent might be decreed a charge on D.’s
portion ; or paid out of B.’s real and personal
estate which had come to D.; o7 that the quit
rent might be apportioned, and D. decreed to
pay his portion. On demurrer, Held, that the
pti. was entitled to the benefit of the agreement
of B. changing the premises notwithstanding

 

 

[GREEMENT AND CONTRACT.] By and agst. whom.. 33

the subsequent execution of the conveyance ;
and that D. was bound to give effect to, and
specifically perform it.

That D. was answerable to the extent of B.’s
real and personal assets.—Hatton v, Waddy,
H. & J. 601. (E.E.)

4. No party to a marriage settlement who is
himself a contracting party, and has failed to
fulfil his part of the contract, can take any-
thing under it.—Houston v. Barry, 5 I. E.R,
294. (E.E.)

5. P., lessee for lives renewable for ever, sub-
ject to a rent equal to that which a sub-tenant
paid for part of the lands, agreed in writing to
let the part in his own possession to D. his
brother, for the lives of D. and two others, and
the survivor’s life, free from rent and assess-
ments during D.’s life, but subject to a rent of
£350 duriug the other lives or life surviving D. :
leases to be executed at either party’s request.
A memorandum added, ‘‘rent to be payable
half-yearly, every lst of May and 1st of Novem-
ber henceforward.”

Before the agreement was made, D., being
elected M.P. for a city, was required to take
the members’ qualification oath. A petition for
want of qualification was threatened at his
return, but abandoned at the date of the agree-
ment. P. died intestate, and without executing
a lease, or parting with possession. D, filed
against P.’s heir-at-law a bill for specific perfor-
mance, which the Lord Ch. of Ireland dismissed
On appeal, Held, that the circumstances and
evidence showed that the object of the agiee-
ment was to give D. a parliamentary qualitica-
tion ; that no interest in the property passed ;
that the parties never intended that the agree-
ment should be executed, and therefore that its
execution could not be enforced either as an
agreement for value (the case made by the bill),
or as a gift.

Courts of Equity do not decree specific per-
formance of incomplete gifts.

The uncertainty introduced by the memo-
randum into the agreement, would alone make
it impossible to decree specific performance
without payment of the rent of £350 from its
date.—Callaghan v. C., 8 Cl. & F. 374. [Affg.
decision below: not reported, Part of Lord
Plunket’s judgment will be found in the notes
to8ClL&F. See Callaghanyv. 0.41. E. R.
441, (R.); 8 CL & F., 709. N.

6. If A., executor and residuary legatee, pro-
mises to pay legacies directed by the testator to
be paid, and consequently omitted from the
will, equity will enforce the undertaking ; and
will declare A. a trustee for the legatees,—
Shany v. Garty, 21. Jur. 187. (C.)

7. An agreement to purchase a licence to use
a patent, will not, in equity, preclude a party
from disputing its validity.—Bazter v. Combe,
11. C. R. 284; 31. Jur. 27. (R.)]

8. Specific performance of an agreement for
sale of lands, decreed against an infant tenant in
tail claiming under a prior will of deceased
eared v. Cuthbert, 1 I. C. R. 369.
(C.)

9. Husband and wife may maintain a suit for
specific performance of an agreement by them

D
34 Spee. perf.

with a third party to sell him lands whereof
the husband is seised in his wife’s right. —Fen-
nelly v. Anderson, 1 I. C. R. 706; 4 1. Jur.
33. (C.)

1. A Railway Co. served a notice to treat for
the purchase of land. Persons in their employ-
ment, who were, or acted as if they were,
authorized to fix the price, obtained the land-
owner’s signature to a printed form of agree-
ment, fixing the price. Held, that the Co.
were bound to specifically perform this agree-
ment, though not signed by them under their
corporate seal.

Semble, a subsequent award, made under the
landowner’s protest, by the arbitrator ap-
pointed pursuant to 14 & 15 Vic. ¢. 70, was a
nullity.

Semble, had the price been ascertained by
parol only, after service of the notice to treat,
the contract would still have bound them.—
Smith v. Dub. & Bray Ry. Co. 31. C. R. 225.
(C.)

2. In 1799, N., for a valuable consideration,
agreed to demise to C. lands, for three lives and
61 years. Held, that that agreement ought to
be executed, by granting a lease for three lives,
with a reversionary term of 61 years from the
death of the survivor of the lives, not a concur-
rent term from the commencement of the lease.
—Blackhall v. Nugent, 51. C. R. 323. (C.)

3. In April, 1854, A. contracted to let lands
to B., at an occupation rent. The written
agreement provided that leases should be taken
out within three months. B. immediately went
into possession. In May, 1854, B. tendered a
draft lease to A., who refused to execute it.
In January, 1856, A sold the lands to C., who
had notice of the agreement. In June, 1856,
C. tendered to B. a deed of attornment, des-
cribing B. as tenant from year to year. B.
refused to execute it. In March, 1857, C.
served notice to quit upon B. In May, 1857,
B. filed this petition. Held, that there was no
abandonment of the lease ; nor any such waiver
as disentitled B. to specific performance.—

Brophy v. Connolly, 7 1. C. R. 173; 3 I. Jur. |

N. 8. £30. (C. A.)

4, A. and B. filed a petition for specific per-
formance of an agreement to grant a lease
alleged to have been made by D. with A., B.,
and C. An action of replevin by A. against D.
was pending. A submission to arbitration,
entitled in the replevin suit, was made a rule of
court at Nist Prius. It referred all matters of
difference between the parties, as well the
subject of that action as the equity matter then

pending between them in the Court of Ch. |!

The arbitrators made two awards, one in the
replevin suit of A. against D., whereby they
found « tender sufficient, and awarded D. tuo
pay the costs ; the other in the Chancery suit of
A. and B. against D., whereby they found that
an agreement for a lease was entered into
between D. and B., and that a sum was paid as
a fine for a lease of lands in the possession of
B., and awarded that a lease be granted by D
to A.

In a suit by A. against D. to carry the latter
award into specific execution, Held, that the

[AGREEMENT AND CONTRACT.] By & agnst. whom.

award in the Ch. suit was invalid, as not includ-
ing the matters in dispute in the replevin suit ;
and that the two awards could_not be treated
ag one.

The court will not decree the specific execu-
tion of an award invalid at law.—Kinneen v.
Persse, 7 1. C. R. 488. (B.)

5. A land-agent has not authority to enter
into contracts for leases.

Entering into possession under a contract for
a lease is a part performance; but the court
will not decree a specific performance unless the
terms of the contract’ are clearly proved. A
tenant paid a fine, and entered into possession,
but did not claim a performance of the contract
for a lease for thirteen years, and until after the
death of the agent with whom the alleged con-
tract was made. During part of the time he
paid an increased rent. There was evidence
that the contract was for a tenancy from year
to year. The court refused specific perfor-
mance,

In a suit for specific performance, a contem-
poraneous letter of a deceased agent with whom
the contract was made, was admitted in evi-
dence to prove the terms of the contracts, the
tenant having relied on the acts of the agent to
establish his authority to contract.

Ina suit for specitic performance of a con-
tract entered into by an agent, his authority to
contract should be stated in the petition.

Semble, 1f not stated the petitioner cannot
prove it at the hearing.—Mortal v. Lyons, 8 I.
C. R. 112. (R.)

6. A., tenant for life, with a leasing power, re-
mainder to B. in tail, executed a disentailing
deed, conveying the estate to the use of A. for
life, remainder to the use of B. in fee. Held,
that A.’s leasing power was not extinguished.

A remainderman is not bound by a contract
for a lease made with tenant for life, unless it
binds within the Statute of Frauds and within
the power of the tenant for life. He is not
eee by part performance by the tenant for
' life.

A written proposal was sent toa tenant for life
for a lease for three lives or thirty-one years, at
‘arent. He replied that he had not power to
‘execute such a lease; but ‘‘if you choose to
take the lease in the usual way, I will allow
you £20 to get up a cottage, and a lease for
your own life.” eld, that as the answer was
not a simple acceptance, but introduced new
terms, the proposal and answer were not a suffi-
cient agreement with in the Statute of Frauds.—
O’Fay v. Burke, 8 I. C. R. 225. (R.)  [Af-
firmed, ibid. 511. (C.A.)]

7. A. agreed in effect to execute a mort-
gage payable, with interest at 5 per cent., in
‘four years, to B. and C., to secure to them an
amount awarded with interest at 5 per cent. on
the principal from the date of the award, A.
giving reasonable proof of his power to grant
such mortgage, and that the property is ade-
quate security. Held, that the agreement,
though not sufficient to ground a decree for
immediate specific performance, would autho-
rize the court to order A. to select a sufficient
portion of his estates, and make it a security
eonformably with the agreement, which, after

 
Spec. perf.

the lapse of four years, and A.’s death, would
not be specifically enforced against the heirs
and devisees of A., but would enable B. and C,
to institute an administration suit, and claim
that a sufficient portion of A.’s real estate be
applied to pay the debt.

Held (after a sale in the L. E. Court), that
the debt should be regarded as a specific
charge taking priority of general creditors, but
puisne to other specific charges. —In re Humble,
111. C. R, 132. (L. E. C.)

1. If a corporation has partly performed a
contract for a lease, the court will decree its
specific performance, though the contract was
not under the corporation’s seal.—Stecvens’s
Hospital v. Dyus, 15 1. C, BR. 405. CR.)

2. Semdle, even in a suit for specific perfor-
mance, the cowt will not compel a railway
company, which has not been in possession, and
whose compulsory powers have expired, to pay
the purchase-money, though the final award
was made before their powers had expired. In
such a case, the court will leave the seller to
his remedy.—/n re Cork and Youghal Ry. Co.,
ex-parte Harnett, 16 1. C. R, 268. (R.)

3. An insolvent, before his discharge, entered
into a contract for a lease at a rent. No credi-
tors’ assignee was appointed, eld, that he
could not sue for a specitic performance of the
contract.

The court will not decree specific performance
of a contract for a lease to an insolvent.

Quere, whether a discharged insolvent can
sue for specific performance of a contract for a
lease, after his assignee has selected to abandon
it?-M‘Nally v. Gradwell, 16 1.C. R. 512. (R.)

VILL. 2. In what Cases.

2. (a) 1. When the Court can and will
enforce an Agreement.

4, W., on his father’s death, became entitled
to considerable estates, subject to a charge of
£5,000 for his eight brothers and his sister, who
were also entitled to a share of their father’s
personal estate. Their portions being small
compared with W.’s fortune, they, in corres-
pondence with a common friend, agreed to give
up all their present rights, in lieu of which each
of them should have, upon W.’s estate, a charge
of £4,000.

This arrangement having been effected, W.
paid interest on the amount agreed to be
charged.

The sister afterwards married. Upon the
treaty for that marriage, 4 common friend
informed the intended husband that her fortune
was £4,000, charged upon W.’s estate. Held,
that, as to all the younger children, a court of
equity would decree specific performance of the
agreement.—Leilly v. Montgomery, H. & J.
App. 54, (C.)  [Affd. 1 Bligh, N. 8. 364; 1
Dow. & Cl. 62.]

5. Tenant for life, having a power to grant
leases for lives renewable for ever, agrees to
grant one, and dies. Held, that the remainder-
man, though taking his remainder as a pur-
chaser for value, must execute the contract,

[AGREEMENT AND CONTRACT]

 

In what cases. 35

If the contract were by parol, and partly per-
formed, so as to take it out of the Statute of
Frauds, it seems that it cannot be enforced
against the remainderman, though the tenant
for life would have been decreed to execute it,
—Lowry v. Dufferin, 1 I. E. R. 281. (R.)

6. When the plain intent of an agreement is
unobjectionable, specific performance will be
decreed according to that intent, though its
terms were contrary to a statute. An agree-
ment for a lease containing a covenant by the
tenant to pay all composition for tithes entered
into after the 2 & 3 Wm. IV. c. 119, will be
enforced by decreeing execution of a lease re-
serving a rent compounded of the rent agreed
upon, and of the rentcharge in lieu of tithes, if
that was the parties’ intention.—Daly v. Dug-
gan, 11. BE. BR. 311. (R.)

7. A. and B. having verbally agreed that A.
should sell premises to B., but differed upon
the price, A. wrote to C., stating that he
would take from B. « named sum, and reserve
for his sister a small portion of the premises, if -
C. approved of it. B. lodged that sum with C.,
who wrote on the letter a memorandum of the
lodgment, and added ‘‘it is w great price.”
During the negotiation, A. agreed to sell the
premises to D., to whom he conveyed them,
though D. had notice of A.’s agreement with
B., who filed a bill for specific performance.
Held, that C, was A.’s agent; and that since
C. had signed the contract acknowledging the
receipt of the price, A. was bound to perform
the agreement.

That D. having had notice, the conveyance
to him must be deemed fraudulent, and be de-
livered up to be cancelled; and that B.’s costs
should first be paid out of the money lodged
with C., since A.’s conduct had been very
fraudulent.

Semble, the signature of the party to be
bound suffices to satisfy the Statute of Frauds,
so as to enable the court to enforce specific
performance.—Jield v. Boland, 1 Dr. & Wal.
37. (C.) F

8. A. leased mines to P. as trustee for the
W. C. Mining Company, and received part pay-
ment of the consideration for the lease. His
executor, P., filed a bill against V., the mana-
ging director, for an account of the purchase-
money remaining due, and for payment. V.
filed a cross bill on behalf of the company,
which set forth various facts evincing fraud on
A.’s part and P.’s part against the shareholders,
and impeached the lease as fraudulent, and the
consideration as exorbitant. Held, that P. was
entitled to the relief prayed by his bill, and
that the cross bill should be dismissed without
costs.—Pike v. Vigers, 2 Dr. & Wal. 1 (C.)
[Affd., 8 Cl. & F. 562. SeeS & Se. 635. (R.)]

9. A court of equity in Ireland will specifi-
cally enforce an agreement for a lease for three
lives or thirty-one years, the term being cus-
tomary and well understood in Ireland. That
the lives are not named in the agreement, and
that it omits to provide who shall nominate the
lives, does not invalidate the agreement, pro-
vided that the lives named by the party seekin
to enforce: performance existed at the date o
36 = Spec. perf.

the agreement, and that he applies within a
reasonable time.—Filzgerald v. Vicars, 2 Dr. &
Wal. 298. (C.)

_1. Inadequacy of value, unless great enough
to prove fraud, does not prevent a decree for
specific performance, if the parties intended to
execute the contract.—Callaghan v. C., 8 Cl.
& F. 374, [Affg. decision by Lord Plunket.]

2. An agreement for the payment of a per-
sonal annuity for the joint lives of A. and B.
will be specifically performed, and the defen-
dant decreed to pay it, on the ground that there
is no adequate remedy at law.—Swift v. &., 3
LE. R. 267. (C.)

3. H., entitled to a remainder in fee in lands
expectant upon a life estate therein, covenanted,
by articles previous to his marriage, to settle
those lands upon himself for life, remainder to
the issue of the marriage ; and afterwards sold
the entire fee to a purchaser who had construc-
tive notice of the articles, and levied a fine to
him for further insuring the estates. Held, ina
suit to carry the articles into execution, that
this fine was not conclusive on the rights of the
children claiming under the articles, Sir E.
Sugden, L.C., observing: ‘‘I am quite clear
that the fine has no operation in equity to pro-
tect the purchaser, even if there was no direct
notice. The fine was levied by the father, as
by a trustee, and could give the purchaser no
better equity than the father had."—Thompson
v. Simpson, 1 Dr. & War. 486. (C.)

4, A., tenant for life, with a leasing power,
remainder to B., in 1814 entered into a written
agreement fora lease with C., at an acreable
rent of £5 13s. 9d. C. entered into possession,
and in 1820 verbally agreed with A. for a re-
duced rent of £4 15s. per acre, which was paid
down to A.’s death in 1839. _B. then refused to
accept the abated rent; and in 1842, when the
value of the land was £2 10s. per acre, filed a
bill for specific performance, which was decreed
at the abated rent, without costs.—Clarke v.
Moore, 71. E. BR. 515; 1 Jon. & L. 723 (C.)

5. Specific performance of an agreement for
a lease decreed, after a refusal by the tenant to
execute any lease, and a delay of six months,
though the agreement was to execute a lease on
a given day; the landlord having at first
insisted on an untenable term, and never pre-
pared or tendered a lease to the tenant.— Burke
v. Smyth, 91. E. R. 135, (C.)

6. The waiver of a contract is itself a con-
tract, and must be acquiesced in by both
parties. When relied on against a tenant, it
must be established by clear and unequivocal
evidence.

Specitic execution of an agreement to lease
at a certain rent, with an understanding that
the tenant was to pay the tithe rentcharge and
poor-rate, decreed by directing the execution of
a lease at a rent equal to the rent agreed on,
plus the tithe rentcharge : a lease for a longer
term having been prepared at that rent by the
agent of the landlord without his authority, on
the tenant’s representation, and executed by the
tenant ; and the rent so reserved having been
accepted by the landlord.

Semble, a contract partly legal and partly

[AGREEMENT AND CONTRACT]

 

In what cases.

illegal, if the illegal part be not malum in se,
and rests in understanding only, may be speci-
fically performed so far as it is legally capable
of execution.—Carolan v. Brabazon, 91. E. R.
224, (C.)

7. An agreement to grant a reversionary
lease at a rent much below the value, made
with a cousin, and purporting to be in conside-
ration of love and affection, is for sufficient
consideration, and will be specifically performed.
—Moore v. Crofton, 9 I. E. R. 344; 3 Jon. &
L. 438. (C.)

8. Specific execution of a written agreement
fora lease decreed at the suit of the tenant,
with several additions (contemporaneously
agreed on by parol), set up by the answer, but
omitted in the bill; plaintiff paying all costs.—
Warren v. Thunder, 9 I. E. R. 371. (C.)

9, A. demised to B. and his heirs lands, but
reserved all mines and minerals, with liberty to
enter and dig for them, and to hold 200 or 300
acres contiguous to the mines when found; an
abatement to be made to B, according to the
rate of rent reserved. A. found mines, and se-
lected land, &c. Held, that the contract
should be specifically executed, since the clause
in the lease was a covenant, not a condition of
re-entry.—Croker v. Orpen, 9 I. E. R. 563; 3
Jon. & L. 589. (C.)

10. A party who had contracted for the sale of
lands died previously to the execution of the
the conveyance. By will, antecedent to the
contract, he devised all his real estate to trus-
tees (who took the legal estate) upon trust for
A. for life ; remainder to B. for life; remainder
to C., an infant, in tail. A suit to complete
the contract having been rendered necessary by
reason of the infancy of B., the court decreed
specific performance, with costs of suit.—Heard
v. Cuthbert, 1 I. C. R. 369. (C.)

11. Quere, when there is an agreement by a
vendor, having a derivative estate in lands, to
let them for a couple of years, and such an
agreement, if carried into execution, would
operate, not as a lease, but as an assignment of
the vendor's estate—will specific performance .
of that agreement be decreed against the
vendor ?—Leathem v. Allen, 1 I. C. R. 683.
(C.); 31 Jur. 73.

12. Husband and wife may maintain a suit for
specitic performance of an agreement by them
with a third party, to sell him lands of which
the husband is seised in his wife’s right.—
Fennelly v. Anderson, 11. C. R. 706; 4 Lf. Jur.
33. (C.)

13. The deft. had acted gratuitously as the
agent of the ptf., transmitting to her the inte-
rest of charges to which she was entitled. One
charge was paid to the deft., which the ptf. di-
rected him to invest on a specified real security,
which he was unable to do. Without her
authority, he lent it to L., whose agent he was,
on the security of a bond and warrant of
attorney to enter judgment. He inclosed the
bond and warrant to her in a letter, in which he
stated, contrary to the fact, that the money had
been applied to pay off a charge on his estate.
L. afterwards, on his son’s marriage, conveyed
a part of the estate in trust to pay off charges
on his estate, another part to the use of his son
Spec. perf.

and his issue; and the lands of C. in trust to
secure his debt to the deft., who, in several
letters, offered to give the ptf.’s claim priority
over his demand on C. L. being dead, leaving
no assets to pay the ptfs. claim, the court, on a
bill tiled by her, declared the ptf. entitled to a
specific performance of the contract contained
in the letters, and that the deft. was a trustee
for the ptf., as to so much of his security on C.
as would be sufficient to pay her claim; and
ordered that he should execute a deed declaring
the trust.—O’ Beirne v. Cornwall, 3 I. C. R.
130; 5 I Jur. 13. (C.)

1. In April, 1854, A. contracted to let lands
to B. at an occupation rent. The written agree-
ment provided that leases should be taken out
within three months. Immediately B. went
into possession, and in May, 1854, tendered a
draft lease to A., who refused to execute it. In
January, 1856, A. sold the lands to C., who had
notice of the agreement. In June, 1856, C.
tendered to B. a deed of attornment, describing
B. as tenant from year to year, which B. refused
to execute. In March, 1857, C. served on B.
a notice to quit. In May, 1857, B. filed this
petition. Held, that there was not any aban-
donment of the lease, nor such a waiver as
disentitled B. to specitic performance of the
contract.—Brophy v. Connolly, 7 I. C. R. 173;
31. Jur. N. 8. 330. (C. A.)

2. Decree for specific performance of a written
contract, whereby the respondent, B., agreed
with the petitioner, A., to assign to A. the in-
terest in the lease of a farm, and give him
possession of the house and lands, &c., B.
continuing with him as a member of his family,
and receiving her board, washing, and lodging
as theretofore. A. ayreed, in consideration of the
assignment, to pay B. £10 a-year during her life,
Held, that violent conduct on A.’s part towards
his wife, no actual assault on B. having been
proved, was not a valid defence against the exe-
cution of the contract.—Finney v. Pardy, 9 1.
C. BR. 347. (R.)

3. Partners owning a flour-mill and corn-mill,
to which one mill-pond supplied water, agreed
for a partition of the mills between them by lot:
the water to be a joint right. He to whom the
flour-mill was allotted to be entitled at all times
to enter the other’s establishment for the pur-
pose of more effectually scouring the water-
course. Either party necessarily making any
proper outlay for such purpose, might claim and
recover half the amount from the other. Should
thé water at any time prove deficient to work
both mills together, each was to have the right
to the entire of the water during each alternate
twelve hours. In a suit for specitic performance,
Held, that the parties were entitled to a joint
and equal right to the entire water, although
the supply to the mills was, at the date of the
agreement, unequal,

Form of decree for partition of a joint right
of water.— Hamilton v. Fawcett, 91. C. R. 397.
(R.)

4, S. agreed to grant B. a lease of the lands of
T. The agreement provided that S. should
“give exclusive shooting and coursing, but not
fishing, over the lands.”

[AGREEMENT AND CONTRACT.]

 

In what cases. 37

Semble, that S. was entitled to the exclusive
right of fishing therein.

B. previously held T. from S under a lease,
which contained an express exception of fishing,
fowling, and shooting. There was evidence that
S. had intended to retain the exclusive right of
fishing in the lands. 8, had drawn up the agree-
ment. Held, that the evidence of intention was
admissible in favour of S., ina suit instituted by
B. for specific performance of the agreement ;
and that B. was not entitled to specific per-
formance thereof without giving S. the exclusive
right of fishing.

Specific performance of an agreement for a
lease was resisted on the ground of forfeiture
by breach of conditions, A question arose whe-
ther such forfeiture had occurred. There was
not sufficient evidence of the facts upon which
that question was raised. Held, that specific
performance of the agreement should be decreed,
the lease to be antedated, so as to permit the
question to be tried at law.— Browne v. Sligo,
101.0. R.1; 51. Jur. N.S. 85, (C.)

5. An agreement to let, provided that the
tenants should repair the dwelling-house within
two years, and put a new rvof on it ; the land-
lord to bear one-half the expense; the tenants
to execute and complete a lease at their own
expense within six months from the date of the
agreement. Held, that in equity time was not
of the essence of the contract.

When a tenant has been in possession under
such an agreement, but has not been required
by the landlord to take out a lease, lapse of time
is not a good defence to a suit by the tenant for
specific performance.

When the acts of a party to a contract would
have worked a forfeiture of all benefit thereof,
if it had been executed, the court will not de-
cree specific performance. But when it is
doubtful whether there has been any breach,
and the evidence is conflicting, or the breaches
are nominal, the court may make a decree,
leaving the respondent to his remedy at law.

In this case it being alleged that the peti-
tioners had not repaired the dwelling-house,
according to theagreement, the court directed
the lease to be antedated.

Letters and conversations, after a notice to
quit had been served by the landlord, there
being conflicting evidence respecting the result
and object of the conversations. Held, not to be
a waiver ofan agreement for a lease.—Cartan v.
Bury, 10 1. C. R. 387. (R.)

6. 8., by a written instrument, agreed to grant
D. a lease of certain premises, at an annual rent
of £2 5s. per acre, for twenty-one years, with a
covenant by the lessor to pay the lessee the
annual sum of £5 for repairs. At a meeting
between D. and 8. it was arranged that the
rent should be £29 18s. ; that a right of way
should be reserved to S. ; and that the payment
of £5 per annum should be only for five years.
This arrangement was not reduced to writing.
D. filed a cause petition to perform specifically
the written agreement as moditied by the un-
written stipulation. Held, that the petition was
maintainable, the variations being all for the
respondent’s benefit.—Donald v. Scott, I. C.
R. 496; 51. Jur. N. 8., 374. (C.)
38 Spec. perf.

1, A term of years was held upon trust for the
separate use of E., a married woman, for her
life ; remainder upon trust for T., her husband,
for life; remainder for their children. There
were several children. By deed reciting that
E., in order to further the prospects in life of
the children, had consented to assign her life
estate for their benefit; and that T,, for the
same purpose, agreed to assign his life inte-
rest, if he should survive his wife ; E. assigned
her life interest to trustees, for the benetit of
her children, and T. covenanted that, if he
should survive his wife, he would, if called on
by the trustees, assign his estate and interest
ov the same trusts. E. and T. subsequently,
for a valuable consideration, assigned to H.
Held, reversing the decision at the Rolls (11 I.
C. R. 123), that their children were entitled to
enforce against H. a specific performance of T.’s
covenant to assign his interest.—Joyce v. Hut-
ton, 121. C. R. 71; 6 I. Jur. N.S. 274.
(C. A.)

2. When an agreement is alleged in a petition
for specific performance of that agreement, it is
not necessary to put in issue the written docu-
ments relied on as evidence of it.

Lands were conveyed by a registered deed,
“subject to existing leases and lettings.” The
vendor had previvasly contracted to grant a
lease ; and there was written evidence of that
agreement.

The vendee had no express notice of it. Held,
that the veudee was bound to execute a lease
according to the terms of that agreement. [Re-
versing Rolls decision, 11 I. C. R. 510.]—Rice
v. O'Connor, 12 I. C. R, 424; 7 I. Jur. N.S.
109. (C.A.)

3. An agreement fora lease at a fair rent and
value entered into by the owner of an estate, at
the time when a receiver had been appointed
over it by the Court of Ch., that court never
having taken any course in respect to it, al-
though the tenant went into possession there-
under. Held, valid; and that the owner of
the estate, which was then selling in this court,
should execute a lease to the tenant in pursuance
of the agreement, and that same should appear
on the schedule of tenancies.—IJn re Blake's
Estate, 9 1. Jur. N.S. 97. (L. E. C.)

4. Quere, does a power to sell real estate suffice
to entitle a party to sue for specific performance
of an agreement for a partition of it?—Thomp-
son v. Lodd, 15 I. C. R. 337. (B.)

5. After the passing the Ren. Lease Cony. Act,
A. contracted in writing to give a part of his
farm for ‘‘the same term of it that I have
myself—three lives renewable for ever,” and
afterwards obtained a f. f. grant of the entire
farm.

On petition under the act, the court refused
to order A. to execute a ff. grantof the part
mentioned in the contract; but directed the
matter to stand over, with leave to file a cause
petition to enforce the contract.—Forde v.
Brew, 17 1. C. BR. 1. (R.)

VIII. 2. (a.) 2. When the Court cannot, or be-
cause of Laches, &c., will not, enforce an
Agreement.

6. The sub-lessee, having been evicted on the
expiration ofthe term granted by his lease, sued

[AGREEMENT AND CONTRACT]

 

In what cases.

on a covenant to grant an additional term.
That term, however, having nearly expired at
the date of the decree, an account, in the nature
of an inquiry quantum damnificatus, was di-
rected instead of a specilic performance.—
M‘Nulty v. Hamill, Beat. Rep. 544. (C.)

7. A specific performance of an agrrement to
sell at a price to be settled by arbitrators named
by the parties, cannot be decreed uuless an
award has been made. If the parties agree to
pay the cost of a valuation, but have not ap-
pointed valuators, the court will interfere so as
to ascertain the value, and will decree specitic
performance.—Daly v. Duggan, 11. Ei. R. 312.
R.

8. P., lessee for lives renewable for ever,
subject to a head-rent equal to a rent paid by a
sub-tenant of a moiety, executed a written

}agreement to demise the other moiety (in his

own possession) to D., his brother, for the lives
of D. aud two others, and the survivor's life,
free from rent and assessments during D.’s life,
and afterwards to pay arent of £350: leases to
be executed at either party’s request. There
was evidence that the object of the gift was to
qualify D. as M.P. for a city, where the lands
lay. P. died intestate, in possession, and with-
out having executed the lease. Held, that this
agreement could not be enforced against P.’s
heir, its object being to give D. a parliamentary
qualification ; that there was not any agree-
ment for valuable consideration ; and that, as an
imperfect gift, « court of equity could not en-
force it.

Courts of equity do not decree specific per-
formance of incomplete gifts.— Callaghan v. C.,
8 Cl & F. 374, [Attg. Lord Plunket’s decision
(not reported. )]

9. Specific performance of an agreement for a
lease will not be decreed in favour of a tenant
who shows, by his conduct and representations,
that he has abandoned the agreement.— Garrett
v. Bessborough, 2 Dr. & Wal. 441; 21. E. R.
180. (C.)

10. When part of an agreement is to do cer-
tain acts upon certain contingencies, equity will
not decree a specific performance.

Decreeing the parties to bind themselves by
covenant to do those acts when the contingen-
cies happened, would be decreeing a specific
performance of an agreement to do those acts.

Courts of equity will not act in decreeing
specific performance unless they can perform
the very thing in the terms specifically agreed
upon. *

Equity will not decree partial execution of a
contract.—Gervais v. Hdwards, 2 Dr. & War.
80; 41. BE. R. 555; 1 Con. & L. 242. (C.)

ll. Upon a marriage treaty between M. and
E., a minor, M. communicated to E.’s guar-
dians a letter from H., stating that H. had
by will left his T. estates to M. The guardians
thought it inadvisable that the marriage should
take place until H. made a suitable settlement
of real estate in the usual course of strict settle-
ment. Their resolution was communicated to
H., who wrote to M.:—‘‘My sentiments re-
specting you continue unalterable. However,
I shall never settle any part of my property out
of my power so long as I exist. My will has
Spec. perf.

been made for some time; and I am confident
I shall never alter it to your disadvantage. J
repeat that my T. estate will come to you at my
death, unless some unforeseen occurrence should
take place ;’ and desired this letter to be com-
municated to E.’s guardians. They consented
to the marriage. It was solemnized. H. de-
vised the T. estate to W. Held, that the letter
did not amount to a contract by H. to devise
the T. estate to M. ; and that H. might devise
it as he pleased,

Held also, that if the letter amounted toa
contract, matters connected with M.’s subse-
quent conduct were ‘‘untoreseen occurrences”
within its meaning ; and that H. was the sole
person to determine whether, upon their hap-
pening, he should alter his will.—J/aunsell v.
White, 1 Jon. & L. 539; 7 I. BE. R, 413. (C.)
[Affd. 4 Hf. Lids. Cas. 1039.]

1. A., B., and C., and D., a minor, agreed
to form a partnership for nine years, unless
sooner dissolved by mutual consent; C. to pay
£1,000 as her proportion of the capital ; D. to
be paid £50 a-year salary for his services. At
the expiration of the third year, D., if he had
conducted himself honestly and duly in the dis-
charge of his duty, ‘‘ and to the reasonable
satisyaction of A. and B.,” was to become
entitled to C.’s share in the capital, and to be
substituted for her as a partner, his salary then
ceasing.

If GC. should cease to be a partner before the
end of three years, her share was to become the
property of D., if le had not previously mis-
conducted himself in his office in the partner-
ship. After D. attained age, and before the
expiration of the three years, he being refused
further maintenance and interference in the
business, tiled a bill for specific performance of
the articles, and to enjoin a dissolution of the
partnership. Held, on general demurret, that
D., by tiling his bill after his majority, was
bound by the agreement so as to make it
mutual ; that a sufficient consideration moved
from the ptf. to entitle him to enforce the
agreement ; that there was not such ambiguity
in the services to be rendered by him as to pre-
vent the agreement being specifically executed ;
but, that the performance of those services to
the reasonable satisfaction of A. and B. was
essential to ptf.’s right; that they alone
were judges of this, and therefore the ptf. could
not enforce the contract against them.—-M/illi-
ken v. M., 81. E. BR, 16. (R.)

2. A., possessed for a term of 820 years of lands
and premises at B., in 1832, demised them to C.
for 800 years, at a rent of £140, subject to the
usual covenants to repair and pay the yearly
rent. C. entered and expended money on the

remises. Conceiving the reserved rent too

igh, A., at his solicitation, in 1838, agreed by
letter to reduce the rent, ‘‘in consideration of
the permanent improvements made and pro-
mised to be made,” to £130 per annum for the
residue of the term. C. continued making im-
provements, and then sublet at a fine to D. at
the rent of £140. D., for £100, purchased
from C. a similar reduction in his rent, and
thereupon A.’s letter was handed from C. to D.
A received the reduced rent for some years
from D., but then insisted on the full rent.

 

[AGREEMENT AND CONTRACT.] In what cases not. 39

On a bill filed by C., to which D. was no party,
against A., for a specific performance of this
agreement, Held, that the consideration for
A.’s promise to reduce the rent was too vague
and uncertain to allow a court of equity to
decree a specific performance.

Held, that D. ought to have been a party to
the bill.

Sembie, the court would evtertain a bill for
specific performance at the suit of D. (Lefroy,
B., dissentiente.)—Morgan v. Rainsford, 8 I. K.
R, 299, (12. I.)

3. Aclause in an agreement providing that, if
it should become necessary to stamp it, and to
pay any penalty for that purpose, the creditor
may charge it against the debtor, is an evasion
of the Stamp Act, and will not be enforced.—
Abbott v. Stratton, 91. E. R. 233; 3 Jon. & L.
603. (C.)

4, An agreement to grant a lease, subject to
such clauses as the landlord chooses to insert,
will not be specifically performed when the
landlord insists on a clause for avoiding the
lease on subletting, and the tenant has already
sublet. Although the court would not allow
him to specify unreasonable clauses, yet,

Semble, if he declined to name any, the
agreement is too uncertain to be enforced.

The subsequent insolvency and continuing
embarrassments of the tenant, are good grounds
for refusing specific performance of an agree-
ment for a lease ; especially if there has been
also laches. —Plunkett v. Dease, 10 I. E. RB.
124, (C.)

5. One cannot sustain a suit which seeks to
enforce an agreement for the continuance of the
ptf.’s personal services to the deft., as those
services might be rendered in a manner produc-
tive of injury rather than benefit to the re-
spondent. The court does not possess means to
compel a person to fulfil his duty to his
employer, under such a contract.

It was agreed that the respondent should
‘*continue to employ ‘the petitioner as sales-
man,” to dispose of his stock in trade, on terms,
some of which tended to show that a sale- of
that stock to the petitioner was thereby
intended ; but, others positively showed that a
relation approaching to that of shopman and
owner was for a time to exist between the par-
ties. A petition praying that the agreement
might be specifically performed was dismissed.

Semble, that the respondent could not have
maintained a suit to oblige the petitioner to
discharge his duty according to the agreement.

Semble, that the omission from an agree-
ment of a date intended to be specified as that
at which an important obligation shall arise,
affords, on the ground of uncertainty, an ade-
quate reason for not enforcing the contract.—
Litzpatrich v. Nolan, 1 I. 0. R. 671 (C.)

6. A., a jointress, accepted B.’s offer of a sum
of money for her jointure. Articles of agrec-
ment for its sale at « specified sum were pre-
pared in duplicate, and engrossed. One part
was signed and witnessed by A., and the other
by B. The part signed by A. was sent by her
to her attorney, whom she had previously in-
structed to see that all necessary arrangements
40 Spec. perf.

were made. The part signed by B. was left in
the hands of his attorney. A.’s attorney, having
discovered that B. had made some misrepresen-
tations as to the amount of his property, and
apprehending that he would be unable to pay
the purchase money, refused to interchange the
parts of the instrument, so as te complete the
contract, unless B. gave further security. B.
refused, and, fur two mouths after the refusal of
the other party to interchange the parts of the
instrument, took no further steps towards the
completion of the contract. A cause petition
then presented by B. to compel a specific per-
formance of the agreement, was dismissed upon
the ground that no complete contract for the
sale of her jointure had been entered into by
A.—Beamish v. Vignoles, 7 I. Jur. 261. (C.)

1. A. being in treaty to obtain a lease of lands
from B., the following memorandum of agree-
ment was made with mutual cousent :—‘ 31st
March, 1852. Term 61 years. Rent, from
the Ist of May, £75. Taxes and rates to be
paid by (A.), and allowed out of the first gale.
Covenant to expend £300 in permanent build-
ings in two years. Covenant to give tenant the
retusal in case of (B.) selling.”” A. entered into
possession in the same year, paid rent, and ob-
tained receipts ; but did not expend the sum of
£300 in improvements upon the lands. In the
year 1854 he furnished a draft lease for approval
to B., who refused to receive it, alleging that A.
had not entitled himself to a lease, having failed
to expend the sum of £300 within the specified
time. A. filed a cause petition for specific per-
formance. /Yeld, that relief could not be granted,
the petitioner having admittedly violated an
essential portion of the agreement.— Williams
v. Langley, 7 1. Jur. 264. (C.)

2. A., by marriage articles, agreed with
trustees named therein, that he ‘‘ should from
time to time thereafter effect such assurances
on his own life, at such periods and for such
amounts respectively as his income would fairly
admit of,” and assign the same to the trustees
on trusts in the articles specitied. Meld, that
this agreement was so uncertain that a Court of
Equity would not decree specific performance
of it. ~ Vottenham v.. Townsend, 51. C. R. 225.
(C.)

3. The lessee under a lease, which contained
a covenant against assignment, agreed to assign
his interest. The purchaser petitioned for spe-
cific performance. The lessee alleged, in de-
fence, that he could not obtain the lessor’s
assent to the assignment. Held, that a Court
of Equity could not relieve the purchaser.—
Meara v. M., 8 I. C. R. 87. (C.)

4. A written proposal to take lands at a rent
of £1 5s. per acie, for three lives, or 31 years,
was sent by F. to a tenant for life, who replied
that he had not power to execute such a lease,
but, ‘‘if you choose to take a lease in the usual
way, I will allow you £20 to get up a cottage,
and a lease for your own life.” F, remained in

possession of the lands, but continued to pay
the old rent, which was less than #1 5s. per
acre, and never made any claim for the £20.
Held, that the proposal, answer, and subse-
guent occupation did not constitute a sufficient
agreement to bind the remainderman.

 

[AGREEMENT AND CONTRACT.] In what cases not.

F. entered into an agreement for a lease
with a tenant for life. The agreement did not
bind the remainderman. In March, 1854, the
tenant for life being dead, F. communicated
the contract to the remainderman’s agent, re-
questing the grant of a lease, which the re-
mainderman refused to execute. In April, 1854,
the agent informed F, that he had been directed
to serve a notice to quit on all the tenants; but
that he would not serve F. if he sent a proposal
to pay £1 5s. per acre (the rent reserved by the
alleged agreement). F. replied by setting out
the agreement, and stating that he was not
tenant from year to year, but saying that he
left his case in the agent’s hands for the present,
‘*particularly as a lease would not be granted
on any part of his property.” Afterwards F.
expended large sums in improving his farm.
Notice to quit was served on F. in 1856. Held,
that F. was not entitled to specitic performance
against the remainderman of the invalid agree-
ment.— O’ Fay v. Burke, 8 I. C. R. (225.) [Affd.
8 LC. RB. 511. (C.A.]

5. A., B., C., and D. owned the ship E., and
contracted with R. that the owners of the E., so
long as she, or any vessel supplying her place,
remained on the W. line, should pay R. one-
sixth of the net profits; and that RK. should
support the interests of the E. and her owners,
and of any vessel supplying her place on the W.
line, and not connect himself with any opposing
party. The agreement also provided fur the
withdrawal of the E., and concluded thus :—
‘In which case the interest in the station re-
verts to R., and we pledge ourselves vot to con-
nect ourselves, directly or indirectly, with any
party injuring his interest in the line.” The
agreement was signed by A., B., C., D. and R.

D. left the tirm: J., G., and H. became
members of it. ‘he M. was substituted for the
E. K. became a member of the firm against R.’s
wish. Held, that the new firm could not en-
force against R. specific performance ; nor could
R. be restrained at their suit from working an
opposition to the M. on that line.—Grantham
v. edmond, 8 I. C. R. 449. (C.)

6. A., hearing that a marriage, to which he
had not assented, had been tixed between his
daughter and B., signed and sealed a document,
by which he agreed tu settle, assign, and make
over to his daughter, on her marriage with B.,
a house, free of all rent, for his own term there-
of, to the purpose that it should be settled on
herself and her issue by B. ; and to execute any
further instrument or conveyance of the same,
which counsel should advise or deem necessary
to carry out that assignment to his daughter,
as a marriage portion. That document was in-
closed in a letter to B., in which A. expressed
his ultimate intentions as to the remainder of
his property to be that, after the death of bim-
self and his wife, part should go to his sons, and
part be divided share and share alike among his
three daughters, with such arrangements as
should secure the property to the family ; so
that, if one died without issue, that portion
should not go to strangers, but pass to the other
branches of the family. The letter reached B.
on the morning of the marriage, which had been
previously fixed, and which took place. B.,
being separated from his wife, filed a cause
Spec. perf.

petition in the name of himself and his wife, for
specific performance of the agreement, by an
assignment in trust for B. for life, or until
bankruptcy or insolvency ; then to his wife, to
her separate use; after their death, to the issue
of the marriage ; if no issue, to B, absolutely.

Semble, the agreement should be carried
into effect, by settling the house to the separate
use of A.’s daughter for life, and after her death
npon her issue, if any, or by settling it on her
without any limitation to her separate use.

Held, that the letter would not be enforced
as an addition to the agreement, or as itself con-
taining a binding agreement.

That the letter would not be enforced as a
representation, as the marriage did not take
place on the faith of it ; and there was a written
contract executed by A.

The agreement was stated in the petition as
an agreement that B. should have a life interest
in the house.

Held, that the document did not support the
case made by the petition, which should there-
fore bé dismissed.

That the interest of his wife was inconsistent
with his, and that she should not have been
joined as a co-petitioner.—Kirwan v. Burchell,
101. C. R. 63. (R.)

1. The owners of a theatre by deed cove-
nanted to confirm to certain debenture holders,
of whom the petitioner was one, the privilege
of free admission tothe theatre. The petitioner
lost his debenture. Afterwards the respondent
became lessee of the theatre with notice of the
deed. Held, that the petitioner was not entitled
to enforce specifically against the respondent
that privilege of free admission.—Malone v.
Harris, 11 1. C. R. 33(C.); Dr. Rep., temp.
Napier, 655,

2. In 1827 a lessor, as to whom it was dis-
puted whether she was only tenant for life, or
was entitled in quasi tail for lives renewable
for ever, made a lease for her own life, with a
covenant, that if she should be enabled, either
separately or in conjunction with any other per-
son or persons, to grant the premises for any
longer term, she would, at the request and costs
of the lessee, execute all such further act or acts,
&c., for the purpose of granting the premises to
him for any term not exceeding three lives, with
covenant for perpetual renewal, on payment of
a pepper-corn fine on the fall of each life at the
rent thereby reserved, &c. The lessee cove-
nanted for himself, his heirs, and assigns, with
the lessor, to accept such grant. It was decided
by the Court of Appeal (7 Ir. Ch. Rep. 388)
that the lessor was tenant ip quasi tail.

Semble, the covenant was a personal covenant,
binding on the lessor during her life, and did
not descend with the land.

No claim was made on foot of the covenant
during the lifetime of the lessor, who died in
1854. Judgments had been obtained by the
petitioners for the same debt against the lessee
and R., who was entitled in remainder to the
reversion, and who afterwards became entitled
to the lessee’s interest. After the lessor’s death
a petition was filed by creditors of R. in the
I. E. Court to sell the reversion, because the
lessor was only tenant for life, or, if tenant in
quasi tail, had not barred the entail. The peti-

 

[AGREEMENT AND CONTRACT.] In what cuses not. 41

tioners were made parties in that matter as
creditors of R.; and, after it was dismissed by
the Court of Appeal, had, in other proceedings
in the L. E. Court, admitted the right of the
respondents, who were devisees of the lessor,
and had gone into possession of the lands.

Held, that the right to a specitic performance
of the covenant had been abandoned, and was
barred by laches and acquiescence. —Homan v.
Skelton, 11 I. C. R. 75. (R.)

3. A., seised in fee, conveyed lands to B. and
C., and their survivor, and the survivor's heirs,
to A.’s use for life; and, after his decease, to the
use of B. and C. and their survivor, and the sur-
vivor’s heirs, upon trust to permit D. to receive
a jointure ; after D.’s death, to the use of A.’s
right heirs. Held, that B. and C. took a legal
estate in fee in remainder.

A. having devised all his property to his
wife, and cuntracted to sell the lands, died. In
a suit by the purchaser to enforce specitic perfor-
mance. Held, that A.’s heir-at-law was not a
necessary party to the conveyance, since he had
no legal or equitable estate, nor any right to in-
stitute a suit to set aside the contract, regard
being paid to A.’s will, devising all his property
to his wife, who would be entitled to the lands
if the contract was set aside; and if it was not
set aside, would be entitled to the purchase-
money.— Roberts v. Marchant, explained;
Fowler v. Lightburne, 11 LC. R. 495; 6 1. Jur.
N. 8. 93 (R.)

4, In 1857 a landlord wrote this reply to his
tenant’s application :—‘‘I will give you a lease
of one life or 21 years, containing the usual cove-
nants,” &c. The tenant wrote :— ‘‘In reply to
your letter I beg to propose paying you for all
the land I hold in E. 30s. per Lrish acre, subject
to survey, from the Ist of May next. As toa
lease you may do that as you please, and what-
ever you choose to insert in it, as I only want
the land during my life, which is now midway
between 60 and 70.” Thelandlord answered :—
“T conclude that you meant to add, ‘and so in
proportion to any fractional part of such Irish
acre ;’ if so, I agree to complete that proposal.
I will have a survey made as soon as possible.”
He afterwards wrote :—‘‘ lf you have a wish for
any particular life to be named, I will leave it
to youto do so.” In another letter :—‘‘I think
you said you wished the lands only for your own
life, if that be so, J am willing to meet your
wishes.” A dispute arose touching the quantity
of land. Nothing further was done until 1859,
when the tenant furnished a draft lease for the
life of the Prince of Wales, adopting the land-
lord’s measurement.

After the tenant’s death the court refused
specific performance,

Letters will not constitute an agreement
which the court will specificaily perform, unless
the answer is a simple acceptance without the
introduction of a new term.—Wright v. St.
George, 12 1. C. R. 226. (R.)

5. In June, 1860, P., in writing, proposed to
take from G. a house and lands, ‘‘ the lease to
contain the usual clause of surrender.” This
proposal was accepted by G. P. soon after-
wards entered. In July, 1860, a draft lease was.
42 Spec. perf.

submitted on behalf of P., containing the usual
covenants, and a clause of surrender at the end
of each half-year. G.’s solicitor, objecting to it,
returned another instrument, containing a clause
of surrender at the end of every two years,
various unusual provisions not authorized by the
agreement, anda reservation of thegame. After
some correspondence, on the 28th December,
1860, P.’s solicitor wrote to G.’s:—“ P. will not
accept a lease with a reservation of game; but
to avoid dispute he will accept the lease accord-
ing to the draft approved by you, omitting the
reservation of game.” Onthe 29th of December
G.’s solicitor replied :—‘‘G. will not forego the
reservation of game.” Soon afterwards P. went
out of possession. In March, 1861, G. offered
to make a lease, omitting the reservation of

ame.
# Held, that G. could not enforce specific per-
formance of the agreement for a lease. —Guilla-
more v. Peacocke, 12 1. C. R. 354;71. Jur. N. 8.
24. (C.)

1. The respondent B., a proprietress of baths,
wrote to the petitioner A., a constable, that if
he would take the management of the baths,
she would engage to give him £50 a-year, with
coals, light, washing, and a percentage on the
profits; and would guarantee him for life a sum
equivalent to his present pay and future pension,
payable if the baths failed, or she disposed of
them. <A. accepted theoffer. B. then wrote :—
«*When you come up to town, I will have a
deed got ready for you. securing you for life the
same pension you would get after service in the
police, and any property I leave will he liable to
this charge. I tell you this, that none of your
friends may be uneasy, though I know you
would not be uneasy yourself, but feel sure that
my word would be as good as a bond, still, to
prevent any loss to you from an accident, you
shall have a bond to secure you. As to your
salary, you will have the whole of the payments
to make weekly to all the people, as well as to
yourself; so there is no occasion to make any
mention of that in the deed of pension.”

Held, that A., if he voluntarily left B.’s ser-
vice, would not be entitled to a specific perfor-
mance, and that the contract being for hiring
and service, the court would not decree a speci-
fic performance.

Semble, the agreement is too uncertain to
justify a decree for specific performance.— Gillis
v. M‘Ghee, 131. C. R. 48. (R.)

2. Agreement for a lease, with a covenant
that the lessee should build a wall round the
land. A lease was executed by the lessor, but
not by the lessee, which did not contain that
covenant.

Held, after the death of the lessee, that a suit
could not be maintained against his adminis-
trator, having assets for the specific performance
of the original agreement.

Semble, the suit should have been to reform
the lease by adding that covenant.—Blosse v.
Prendergast, 13 I. U. R. 373. (B.)

3, A. having infringed on B.’s rights by' using
his trade mark on an article manufactured by
A., it was agreed between them that all claims
in respect of such infringement, not only by A.,
put by all purchasers from him, should be dis-

 

[AGREEMENT AND CONTRACT,] In what cases not.

charged by payment of a sum of money. B.
undertook to execute a release of all claims and
demands in respect of the infringement. Before
the agreement, A. had sold large quantities of
the article to different persons, who, after the
agreement, sold it with B.’s trade mark; B.
commenced against them suits for injunctions.
A. thereupon sued B. for specitic performance
of the agreement to execute a release, and to
restrain B. from proceeding in the several suits.

Held, that the agreement was confined to
sales prior to the agreement, and did not au-
thorize A.’s purchasers to sell after the agree-
ment.

Semble, a suit will not lie to restrain the
respondent from proceeding for an injunction
against third persons, not parties to the suit,—
Oldham v. James, 131. C. R. 393. (R.) [Affd.,
1440 C.R. 81.6. AJ

4. By marriage articles, the intended hus-
band, A., in consideration of the marriage, and
of the intended wife’s(B.) fortune, agreed.to con-
vey lands in trust for himself for life ; and, if
B. survived him, to her use, and that of their
child or children ; if no child, to the use of B.,
her heirs, &c. Held, that a settlement pursu-
ant to these articles should give B. a life estate,
with remainder to their children.

In 1812 lands held for lives renewable were
conveyed by C. to his own use for life; remain-
der to A. and his heirs. C. died. In 1813 A.,
who did not appear to have gone intu possession
by marriage articles, agreed to settle the lands
on himself for life ; remainder to his wife, B.,
for life; remainder to the petitioner, D. In
1814 a renewal was granted to C.’s heir-at-law.
In 1827 A. died; D.’s right under the articles
then accrued. C., and those claiming under
him, remained in undisturbed possession from
1814 to 1862. Held, that D.’s right was barred
by the Statute of Limitations. That, although
the petition did not pray specific execution of
the articles, yet the claim, as founded on them,
was barred by laches, independently of the
Statute of Limitations.—Rossiter v. R., 141.
C. R. 247. (R.)

5. A plot of ground, particularly described in
a map drawn in the margin of the lease, was
demised with a covenant by the lessee to build
and keep in repair, &c., and a covenant by
the lessor that the lessee should enjoy vistas
through the adjoining trees as on the map, on
which two points were marked A. and B., with
a note that between these points a vista was to
be maintained, the trees in it not to exceed the
height of fourteen feet.

A hedge, and a space on other lands of the
lessor, adjacent to the boundary of the de-
mised Jands, were marked on the map with a
note—‘‘This hedge to be maintained by the
grantor.” This note was not signed, nor was it
incorporated in the lease by a reference. The
lessor subsequently demised the adjacent land
to C., who cut down the hedge, and erected a
wall between it and another boundary. The
lessee filed a petition for an injunction to re-
strain C. from destroying the hedge, and from
erecting the wall or any building inconsistent
with the hedge being maintained for the benefit
and advantage of the lands demised.
Hiss HAOU AMOI

'

Spec. perf.

Semble, there was no covenant by the lessor
to maintain the hedge.

Held, that the court would not decree the
specific performance of such a covenant, as
being too vague, and in the nature of a cove-
nant to repair.

That parol evidence was not admissible in an
injunction suit, to prove that the contract was
that the hedge should be maintained as an or-
nament.—Armstrong v. Courtnay, 15 1, C. hi.
138. (It.)

1. X., tenant of G. and other lands under a
church lease, demised G. to Y. for 21 years,
with a 4. g. covenant for renewal; and subse-
quently renewed his lease. This renewal, by
the conveyancer’s mistake, and contrary to the
intentions of the parties, who thenceforth acted
as if G. had been omitted therefrom, included
G. Held, that Y. could not maintain’ against
X. a suit for specitic performance of the cove-
nant to renew.—WHilis v. The Lord Primate,
161.0. R. 184. (C. A.) [15 I. C. R. 237.)

2. In July, 1859, w final award ascertained
the price of lands taken by a railway company,
which did not go into possession, and whose
power to take lands expired in July, 1863. On
a summary petition presented under the Rail-
ways Act (Ir.), 1851, the court refused to com-
pel the company to lodge the purchase money.

Semble, even in a suit for specific perfor-
mance the court will not compel a company,
who have not been in possession of the lands,
and whose compulsory powers have expired,
to pay the purchase money, though the final
award was made before their powers had ex-
pired. In such a case, the court will leave the
seller to his remedy.—In re Cork & Youghal
Ry. Co., ex-parte Harnett, 16 I. C. R, 268. (R.)

VIII. 2. (6). When there is misdescription or
misrepresentation respecting value, d&c., on
agreement for sale, &c.; deterioration of
estate, de. When specific performance will be
decreed, with compensation.

3. Specific performance of an agreement for
sale decreed, though the contract was made
when the seller was in prison.

The court must examine carefully into a con-
tract entered into with a party in gaol, and see
that no undue advantage of his position has
been taken. It is not true, as a general propo-
sition, that a man in insolvent circumstances,
and in prison, canuot sell his property.

_ Principles upon which the court acts in con-
sidering the question of value.—Brinkley v.
Hann, Dr. Rep. t. Sug. 175. (C.)

4, A principal, V., agreed to sell part of his
estate to his agent, X.; but when he made the
agreement, was unaware that that part included
the only turf-bog on the estate. There was
not any concealment, nor apparently any
knowledge of that circumstance by X.

V., by will, named X. a trustee for sale. X.
assisted his co-trustees, and did not insist on
performance of the agreement until after the
lapse of nearly a year from V.’s death, nor
until after the estate had been advertized for
sale. Held, that V.’s ignorance touching the
turf-bog afforded sufficient ground for refusing

 

 

‘(AGREEMENT AND CONTRACT.] Misdescription, de. 43

to enforce specific performance ; and that X's:
conduct after V.’s death amounted to a virtual
abandonment of the agreement.

The letters which contained the agreement
showed that V.’s purpose in selling the lands
was to enable him to pay his debts in his life-
time.

Semble, the circumstance that this object
could not be attained, would not be an objec-
tion to enforcing specific performance after V.’s
death, if the agreement was in other respects
precise.—Ohambers v. Betty, Beat. Rep. 488.
(C.):
5. Specific performance of an agreement to sell
lands decreed, although the seller was in prison
when the contract was entered into.—Brinkley
v. Hann, Dr. Rep. t. Sug. 175. (C.)

6. A purchaser served notice on the vendor
that, unless a good title was made within one
week, he would consider the contract at an
end; yet continued negotiations, and did not
appear to finally abandon the contract until
about a month before the vendor filed his bill
for specific performance. Held, that the pur-
chaser’s acquiescence in the proceedings taken
after the service of the first notice prevented
his relying on unreasonable delay, so as to dis-
enti'le the vendor to maintain bis bill—ZJrvine
y. Deane, 21. Jur. 201. (C.)

7. A party served bya railway company with
notice to treat for the purchase of lands, in pur-
suance of the powers given by the Railway Act,
and the Lands’ Clauses Act; and who, having
refused the offer of compensation, had an inqui-
sition of a jury to assess damages and a finding
thereon, may maintain a bill for specific perfor-
mance against the company, the dealing
between them amounting to the ordinary case
of agreement between vendor and purchaser.
A demurrer to the bill, on the ground that a
complete remedy exists at law by action of debt
on the judgment, was overruled.— Doherty v. W.
& Lim. R. C.; 131. E. BR. 538; 2 L. Jur. 285. (C.)

8. Inadequacy of value is not an objection to
decreeing specific performance, unless the great-
ness of the inadequacy proves fraud, or the
parties could not have intended to execute the
contract.—Callaghan v. C., 8 Cl. & F., 374.
[Affg. Lord Plunket’s decision. ]

9. lia contract for sale contains a proviso.
that either party is to pay a sum of money if he
does not complete the contract, specific perfor-
mance may, nevertheless, be enforced.

When a party agrees to do an act, and binds
himself to pay a sum of money, if he does not
perform the contract’he cannot elect to pay that
sum instead of doing the act which he had
agreed to perform, Similarly, if a man cove-
nants not to do an act, orto pay a sum of money,
if he does the act, it would seem to follow
that he cannot elect to break his agreement,
and pay the penalty.—French v. Macale, 4 I.
EB. R. 574; 2 Dr. & War. 269; 1 Con. & L.
459. (C.)

10, When a contract has been executed, an
allegation that the deed by which it was exe-
cuted is not conformable to the real agreement
between the parties, is no defence to a suit to
enforce it, The party setting up such a defence
oust file a cross bill.— Law v. Warren, 61. E.
R, 299, 302. (C.)
44 Spec. perf,

1. The deft., entitled to reversionary interests
in lands, mortgaged all his interests to the ptf.
‘When they vested in possession, the ptf. insti-
tuted this suit to enforce payment of the mort-
gage debt. The deft., by his answer, set up
equitable grounds to impeach the mortgage.
Held, that to make such defence available he
should have filed a cross bill to impeach the
transaction upon those grounds, which were
not available by way of defence to a bill filed
to have the benefit of an executed contract.—
Richards v. Bayly, 1 Jon. & L., 120; 6 I. E.
R. 545. (C.)

2. A bill for specific performance insisted on
the literal construction of a written agreement
which was proved to be contrary to the real
intention of the parties ; and contained a false
statement as to a fact which would have been
inconsistent with the ptf.’s representation of
the case. The bill was dismissed on the parol
evidence, although the ptf. at the hearing
offered to perform the true agreement. The
court refused to dismiss the bill without preju-
dice.—Molloy v. Egan, 71. E. R. 590. (C.)

3. The Tenantry Act, and the local equity of
which it is declaratory, do not extend to cove-.
nants by tenants to renew.

A lease for lives contained a covenant to
take renewals. The landlord did not enforce it
against the tenants in possession when the c. g.
vies died. Several years after, the premises,
much deteriorated, were assigned to the defen-
dant. The landlord’s agent took a part in the
assignment ; had the conveyance altered ; and
engaged in a treaty to grant a new lease at a
reduced rent to the deft., under circumstances
which might lead her to believe a renewal would
not be enforced, and which the court disap-
proved of, though nothing fraudulent was in-
tended. eld, that the circumstances sufficed
to deprive the landlord of his right to a specific
performance of the covenant.—A lder v. Ward,
81. BE. R. 350. (C.)

4. A bill, filed in 1850 by the owner of a
leasehold, stated that the Railway Co. whose line
was intended to intersect pfs. lands, in Sept.,
1847, served upon ptf. the usual notice to treat.
No agreement having been come to, the Co., in
December, 1848, issued their precept, upon
which an inquisition was held. The jury
awarded to the ptf. a sum for purchase money,
and asum for compensation. The ptf. offering
to perform her part of the contract, frequently
applied to the Co. to complete their part, which
they failed to do. Averment that ptf. could
have adequate relief in equity only. Prayer
for specific performance, and payment of the
sums awarded, with interest thereupon from
the date of the inquisition. Demurrer, for
want of equity, and because ptf.’s remedy was
at law, overruled.— Doherty v. Wat. & Lim.
Ry. C., 131. E. R. 538; 2 I Jur. 285 (C.)

5. An agreement to let to the vendees for six
years the premises then occupied by the vendors,
“* as held under A.” does not absolve the vendors
from the duty of proving A.’s title.

It appearing that A. was only a lessee for
three lives, with a covenant for perpetual re-
newal, Held, that the vendors could not make

 

[AGREEMENT AND CONTRACT.] Misdescription, dc.

a good title to grant a lease for a term of 61
years.

Held also, that the fact of other premises
(besides those proposed to be let) being com-
prised in the lease to A. was a fatal objection
to the title.

When a vendor, having a derivative estate in
lands, agrees to let them for years, and the agree-
ment, if carried into execution, would operate,
not as a lease, but as an assignment of the
vendor’s estate :— Quere, whether specific per-
formance of the agreement will be decreed
against the vendee?—Leathem vy. Allen, 1 I.
C. R. 683; 3 1. Jur. 73. (C.)

5. A Railway Co. in 1846 served upon a land-
owner the usual notice to treat, which not hav-
ing heen complied with, they served him in
1847 with a second notice, offering a nominal
sum for purchase-money for his land, and com-
pensation for consequential damage ; and stating
that, if that sum were not accepted, they would
proceed by the inquisition of a jury to ascertain
the amount to which he was entitled. That
sum he refused to accept, but afterwards, in
May, in the same year, entered into an agree-
ment to accept £110 for purchase-money and
compensation. The company constructed the
greater part of their line, but neither entered
into possession of the land in question, nor paid
the £110. In 1849 their compulsory power for
acquiring land, and in 185} their power to con-
struct the railway, expired. A petition, after-
wards tiled by the landowner, praying specitic
performance of the agreement of May, 1847;
or, alternatively, that the Co. should be com-
pelled to complete the purchase conformably to
the notice to treat of 1846, and to the Lands’
Clauses Consolidation Act, was dismissed with-
out prejudice to the petitioner’s right to proceed
at law on the agreement of 1847.— Munroe v.
hea & Warrenpoint Ry. Co., 2 I. C. R. 260.
(C.)

6. By the Baths and Wash-houses’ Act, 9 &
10 Vict. c. 87, the town council of a borough
is, or the commissioners of a city or town are,
empowered from time to time to contract to
purchase or rent any lands necessary for the
purposes of the act, and for the purchase or
lease of any baths and wash-houses already or
thereafter to be built and provided in any such
borough, or such city or town, and appropriate
the same to the purposes of the act. The act
provided that the baths and wash-houses so
purchased or leased should be deemed to be
within the provisions of the act as fully asif
they had been built or provided by the said
council or town commissioners. ‘‘ Lands” are
defined by the Act to mean lands, tenements,
or hereditaments, of whatsoever nature or tenure.
The town council of B. contracted to purchase
baths and wash-houses which had been com-
menced by a private society, and were held
under a sublease of a portion of lands com-
prised in a lease of a portion of lands demised
by the owner of the fee. They were thus sub-
ject to two rents in addition to the rent reserved
by the sublease. Held, that the town council
were empowered to purchase such an interest,
if the title were good: but Held, that the title
was bad, and the court refused to enforce a spe-
cific performance of the contract, which would
Spec. perf.

be a breach of the trust by the town council.—
Mulholland v. Mayor of Belfast, 9 Ir. C. R.
204, (R.). [Affd. Ubid. 292; Dr. Rep. temp.
Napier, 539. (C. A.)]

1. An order for the sale of lands having been
made the owner accepted a private offer, ‘** sub-
ject to the approbation of the court ;” but, sub-
sequently discovering that the yearly rental of
the lands in respect of which the offer had been
made had been cunsiderably undervalued, sought
to have the approbation of the court withheld,
whereas the proposer sought to be declared the
purchaser of the lands, or at least to have their
sale postponed, there being other lands ordered
to be sold in the same matter, which were
adequate to discharge the incumbrances. Held,
that in this case the court had not power to
enforce specific performance ; but would exer-
cise its discretion to postpone the sale of the
lands, upon the express understanding that
bond fide proceeding should be instituted upon
the private contract.—Jn re Tottenham's Lstate,
151. C. R. 308. (L. KE. C.)

VII. 2. (¢.) When there has been Part
Performance.

2. It is not a sufficient part performance to
take a case out of the Statute of Frauds, that
the ptf., tenant from year to year, to whom a
verbal promise of giving a lease for 21 years
had been made, had continued in possession.

Any act, which may be referred to a title
distinct from the verbal agreement of which
specific performance is sought, cannot be deemed
a part performance therevf to take the case out
of the Statute of Frauds. — Brennan v. Bolton,
2 Dr. & War. 349. (C.)

3. Bill for specific performance of an arrange-
ment for a lease for 21 years, and for an ac-
count. The defendant held the lands for one
life. The agreement was executed by the agent
of the deft., possession given under it, and money
expeuded in improvements ; but the deft. swore
that her agent had no authority from her to
act so. There was evidence that she subse-
quently recognised the agreement. and promised
to execute a lease pursuant thereto. A civil
bill ejectment was served upon the ptf., and
another upon two of his under-tenants. The
former was dismissed ; but the latter being un-
defended, a decree was obtained thereon, nnder
which he was turned out of possession. In
about three years afterwards, this bill was
tiled. Pending the proceedings, the c. qg. vie
in the deft.’s lease died. Held, that the ptf.
was entitled to an account of the rents and
profits of these lands which the deft. had re-
ceived, or which, without wilful default, she
might have received, from the day of the exe-
cution of the civil bill decree up to the day of
the death of the c. g. vie. In this case the
court would have decreed a specific performance
if the deft.’s interest had not expired. Semble,
Callaghan v. Pepper, 21. EH. R. 399. (E. E.)

4. B., the grandmother of a fiancée, D.,
signed a memorandum drawn by her agent
stating her intention to leave, at her death, to

[AGREEMENT AND CONTRACT.] Of vol. Agts.

 

 

45

D., £2,000, to be secured by a bond, as a pro-
vision for D. on her intended marriage. On
the same day, the agent wrote by ber direc-
tions to the intended husband, A., stating B.’s
intention to give at her death to D. £2,000,
and her house at C. Shortly afterwards, the
agent wrote to B., stating A.’s wish to have her
bond, and also the house which she intended to
give; and that he, the agent, had referred A.
to her solicitor. ‘That letter was read to B.,
who gave it to D., saying that it related to D.’s
affairs. The marriage was sulemnized. B. died
without having executed either bond or con-
veyance. Held, that there was a sufficient
agreement in writing within the Statute of
Frauds. A contract upon marriage, as well
as’a contract upon the sale of land, may be
made out from a correspondence. —Saunders v.
Cramer, 3 Dr. & War. 87; 5 I. E. R, 12., nom.
Greene v. Cramer, 2 Con. & L. 54. (C.)

5. Part performance of a parol agreement by
a tenant for life will not bind the remainder-
man.—Daly v. Coghlan, 3 1. Jur. N. 8. 150.
(R.)

6. D. proposed to a corporation to take a lease
of part of their lands. An acceptance of the
proposal was entered on the corporation books,
and communicated to D., who tuok possession,
and paid the first year's rent. He refused to com-
plete the contract by taking out the lease. In
a suit for specific performance, /eld, that there
had been acts of part performance sufficient to
take the case out of the general rule by which
corporations can contract only under their com-
mon seal.— Governors & Guardians of Steevens’s
fospital v. Dyas, 15 I. C. R. 405; 8 I. Jur.
N.S. 411. (R.)

VUL 2. (d.) In cases of Voluntary Agree-
ments,

7. A. being about to be married to a minor
entitled to considerable property on marrying
with consent, applied to his uncle, B., who
wrote to him that he had devised an estate to
him. The letter being communicated to the
lady’s guardians, they resolved that the mar-
riage should not take place until B. made a set-
tlement ; after which B. wrote a letter to A.
saying his ‘‘sentiments respecting A. remained
unalterable, but that he would never settle his
property out of his power as long as he existed ;
that his will was made, and he was confident
he should never alter it to A.’s disadvantage ;
that he repeated that the estate should come to
A. at his death, unless some unforeseen occur-
rence should take place.” He desired this
letter to be shown to the guardians, who as-
sented to the match, and the marriage was
had. B, was a trustee in the marriage settle-
ment, which recited A.’s expectations from
him, but the contents of which he did not’
know. There were other letters expressive of
B.’s good will and intention, and he afterwards
sometimes treated A. as the person to succeed
him. B. devised the estate to D. Held, that
no binding contract to devise to A. was made
out; but that even if there was a contract, it
was only conditional, and B. was the judge of
what “unforeseen occurrence” might alter it ;
46 Spec. perf.

and that, therefore, B. might devise his estate
as he pleased.

Held, that no case of a representation to in-
duce the guardians to consent to the marriage
was made out, so as to bind B. to fulfil their
expectations.— Maunsell v. White, 7 LE. R.
413; 1 Jon. & L. 539. (C.) [Affd. 4 H. Las.
Cas. 1039.]

1. A. being seised of an estate for life, re-
mainder in tail to B. in several denominations
of lands, entered into a voluntary agreement
with B. to resettle the lands; and that A.
should be made tenant for life in one portion,
X., as of his former estate, with remainder in
tail therein to B. The settlement being pre-
pared, supposed to embody this agreement, and
executed, X. was thereby by mistake limited
to B. for life only, remainder to his heirs male
in strict settlement. The mistake being dis-
covered after the death of A., and. before the
birth of any issue of B., on a bill filed by B. to
have the mistake corrected, Held, that this
court could not bind the rights of the unboru
issue, so as to divest them of any legal estates
thereunder, or amend or correct the deed itself,
but declare only the rights of the parties, ac-
cording to their original intention and con-
teact.—Richards v. Fitzgerald, 9 1. E. BR, 488.
(E E.)

2. By a settlement, made on the marriage of
K. with R., the lands of C., held by lease for
lives renewable fur ever, were limited to K. for
life, remainder to the sons of the marriage suc-
cessively in quasi tail; in default of sons, to
the daughters as tenants in common, with the
usual power to K. to make leases in possession
for any term not exceeding three lives or 31
years. There were issue of the marriage two
daughters. R. died and K. married M., by
whom he had several children. K., a few days
before his death, ‘‘being,” as the petition
stated, ‘‘in a very weak state of health, and
knowing that he had but a short time to live,
and with a view of making a provision for the
said M. and her children, and iv order to enable
them to support themselves by their industry
after his death,” executed an agreement, in the
following terms :—‘‘I agree to give a lease of
the lands of U., now in my possession, to
Messrs. J. and P. of 8., in the county of D.,
for the term of 31 years or three lives, for the
sum of £1 10s. per Irish acre ; said lease to be
for the benefit of my wife M. and ber children ;
the lives to be J., N., and R., my three sons.
—T. K.— Witness present, J. K.—J. M.”
This agreement did not appear to have been
delivered to the trustees during the life of K.,
and was not set up by them or M. and her
children until some months after his death ; but
the rent reserved by it did not appear to be
under the value of the lands. Hed, that M.
and her children were entitled to have a lease
executed by the daughters of K., pursuant to
the terms of the agreement.—King v. Roney, 5
I. C. R. 64. (C.)

3. A. hearing that a marriage, to which he had
assented, had been fixed between his daughter
and B., signed and sealed a document by which
he agreed to assign and make over to his
daughter, on the occasion of her marriage with

[AGREEMENT AND CONTRACT.]

 

Of Volun. Agts.

B., « house free of all rent for his own term
thereof, to the purpose that it should be settled
on herself and her issue by B., and to execute
any further instrument or conveyance which

.counsel should advise or deem necessary to

carry out that assignment to his daughter as a
marriage portion. That document was enclosed
in a letter to B., in which A. expressed his ulti-
mate intention as to the remainder of his pro-
perty to be that, after the death of himself and
his wife, part of it should go to his sons, and
another part should be divided, share and share
alike, among his three daughters, with such
arrangements as should secure the property to
the family, so that if one died without issue,
that portion should not go to strangers, but
pass to other branches of the family. The
letter reached B. on the morning of the mar-
riage, which had been previously fixed, and
which took place. B., being separated from
his wife, filed a cause petition in the name of
himself and his wife for specific performance of
the agreement by an assignment in trust for B.
for life or until bankruptcy or insolvency ; then
to B.’s wife to her separate use, and after their
death to the issue of the marriage, and if no
issue, to A. absolutely.

Semble, the agreement should be carried into
effect by settling the house to the separate use
of A.’s daughter for her life, and after her
death upon her issue, if any ; or by settling it
on her, without any limitation, to her separate
use; but

Held, that the letter should not be enforced
as a representation, as the marriage did not
take place on the faith of it, and there was a
written contract executed by A.

The agreement was stated in the petition as
an agreement that B. should have a life interest
in the house.

Held, that the document did not support the
case made by the petition, which should be dis-
missed.

That the interest of B.’s wife was incon-
sistent with his, and that he should not have
been joined as a co-petitioner.—Kirwan v.
Burchell, 10 1. C. R. 63. (R.)

4. By a marriage settlement lands were con-
veyed to trustees to the separate use of A., the
wife, for life, and in case B., the husband,
should survive her, to him for life, and after the
death of the survivor of A. and B., in trust to
convey to the child or children of the marriage,
as A. and B. should appoint: in default of
appointment to the children equally : in default
of issue to the survivor of A. and B. ‘There
was issue. By deed, reciting that A., in order
to further the prospects in life of the children,
had consented to assign her life estate for their
benefit; and that B., for the like purpose,
agreed to assign his reversion in case he should
survive his wife, A., for the considerations
aforesaid, and 10s., conveyed her life interest to
trustees in trust to receive the rents during the
life of A. and B., and apply them for the bene-
fit and maintenance, &c., of the children, in
such manner as the trustees might deem snffi-
cient. It was agreed that the trustees should
have full power and control over the property
during the life of A. and B., free from control or
intermeddling, debts, &c., which at any time
When Time is

might have affected the estate of A. and B.. B.
covenanted that if he should survive his wife,
he would, if called on by the trustees, assign
his estate and interest to the trustees on the
said trusts. Held, that the children were not
within the consideration, and could not enforce
a specific performance of B.’s covenant to assign
his interest.—Joyce v. Hutton, 11 I. C. R. 123.
(R.) (Reversed, 12 I. C. R. 71; 6 1. Jur. N.
8. 274. C. A.] ,

VIII. 2. (e.) Incases of Stock, Chattels, &c., and
other Personal Property.

1. In 1814, the Grand Canal Co. created
stock with peculiar advantages to the sub-
scribers, the legality of which was doubtful.
In 1831, they empowered the directors to ex-
change for new stock such stock of 1814 as the
holders thereof were willing to bring in, upon
certain terms. The ptis., one of whom was a
director and the other a stockholder, and both
subscribers to the stock of 1814, refused to
accede to the terms offered by the resolution of
1831; but acted so that their conduct might

- have induced other stockholders of 1814 to

accept of the arrangement proposed by the
resolutions of 1831. Upon a bill filed for a
specific performance of the resolution in 1814,
they were refused relief in respect of the stock
of 1814.—Corhailis v. Grand Canal Company, 3
IE. RB. 29, (E. E.)

 

IX. Wuewn Time ts or i7s Essence.

2. A bill for specitic performauce insisted on
the literal construction of a written agreement
which was proved to be contrary to the real
intention of the parties. The bill contained a
false statement as to a fact which would have
been inconsistent with the ptf.’s representation
of the case. The bill was dismissed on the
parol evidence, although the ptf., at the hear-
ing, offered to perform the true agreement.
The court refused to dismiss the bill without
prejudice.

The ptf. agreed to take certain lands from
the deft., provided the deft. took a store con-
sisting of two parts from the ptf. for five years ;
‘*this agreement to be carried into effect before
the Ist of April next, or to be annulled.” The
pté. took possession of the lands, and the deft.
of part of the store, bnt the ptf. was unable to
give possession of the other part until May.
On the 2nd of April the deft. quitted.

Semble, the time would not have prevented
the specific execution of the agreement.—J/ol-
loy v. Egan, 7 I. i. R. 590. (C.)

3. In 1838 A. agreed to sell specified lands to
B., who agreed to pay £6,000, part of the price,
at once, and the balance by the 1st: January,
1839. B. was to get possession of L., part of
the lands, on the lst May, 1838, subject to any
question of title. The abstract was to be de-
livered on the lst November, 1838, and a good
title made out to the satisfaction of B.’s counsel
in a month after. B. was to execute the con-
veyance on the lst January, 1839, and if a good
title was not made out by the Ist February,
1839 (which was expressly fixed as of the
essence of the contract), B. was to be dis-

[AGREEMENT AND CONTRACT. ]

 

of its Essence. 47

charged from his purchase. B. paid the £6,000,
entered into possession of L., and, before
January, 1839, requested A. not to press the
contract, as he was not in a condition to pay the
balance. At B.’s request A. deferred, until 1844,
to furnish the abstract. In August, 1845, B.
furnished requisitions for searches. The discus-
sion respecting the title continued until June,
1847, when B. stated that he would not consi-
der himself bound any longer, unless his ques-
tions were satisfactorily answered in a month.
Thereupon A. furnished what he relied on as
satisfactory evidence of the point in dispute,
declined to give further searches, andin March,
1848, filed this bill for specific performance.
Held, that though time was originally of the
essence of the contract, it had been waived by
the conduct of the parties; that B.’s right to
give notice to rescind the contract could not
have arisen until July, 1847, and that the bill
had been filed within a reasonable time there-
after ; that the retention of L. by B. was incon-
sistent with the rescission of the contract. The
phrase, ‘‘satisfaction of counsel” means rea-
sonable satisfaction.—Gordon v. Mahony, 13
I. E. BR. 383. (C.)

4, Upon a sale of a leasehold interest, one of
the conditions of sale provided that a deposit of
£25 per cent. would be required, as soon as the
purchaser was declared, ‘‘the balance to be
paid on, the deeds being perfected, which must
be on Thursday next, when possession will be
given.” The purchase was nut completed on
that day, through the default of the purchaser,
though the vendor had arranged to leave the
country.

Held, upon a petition filed by the purchaser
for specific performance, that time was of the
essence of the contract.

‘The respondent's answering affidavit insisted
that time was of the essence of the contract, and
that he had not waived his right so to insist.
The petitioner in his affidavits in reply went.
into evidence to establish a waiver.

Held, that evidence to prove the waiver could
not be received, no case of that kind having
been made on the petition.

Where the petitioner intends to rely upon a
waiver by the respondent of a right arising out
of the contract, the waiver must be specifically
put in issue by the petition.—Barry v. Burns,
31 Jur. N.S. 97. (C.)

5, An agreement to let lands, provided that the
tenants should repair the dwelling house within
two years and put a new roof on it, the landlord
to bear one-half of the expense, the tenants to
execute and complete a lease at their own ex-
pense within six months from the date of the
agreement. J/eld, that in equity, time was not
of the essence of the contract. When the tenant
has been in possession under such an agreement,
and has not been required by the landlord to.
take out a lease, lapse of time is not a good de-
fence to a suit by the tenant for specific perfor-
mance. When the acts of a party to a contract
would have worked a forfeiture of all benefit
thereof, if ithad beenexecuted, the court will not
decree specific performance. But when it is
doubtful whether there has beenany:breach of the
contract, and the evidence is conflicting, or the
breaches of the agreement are nominal, the
48

court may make a decree, leaving the respondent

‘to his remedy at law. In this case it being al-
leged that the petitioners had not repaired the
dwelling-house, according to the agreement, the
court directed the lease to be antedated. Letters
and conversations, after a notice to quit has
been served by the landlord, there being con-
flicting evidence respecting the result and object
of the conversatiens. Held, not a waiver of an
agreement for a lease.—Cartan v. Bury, 101.
C. R. 387. (R.)

X. Serrine ASIDE.

1. Arelease and conveyance by a legatee and
devisee to the trustee and executor. Held, con-
firmed by acquiescence for six years before, and
many intermediate acts of recognition, though
otherwise the transaction would have been set
aside.—De Montmorency v. Devereux, 2 Dr. &
Wal., 410; 7 Cl. & F. 188; West, 64. [Affg.
1 Dr. & Wal. 119 C.]

2. Under articles of 1760 it was covenanted
to settle estates on A for life: remainder to B.
for life ; remainder to the heirs of his body. The
estates were subject to prior incumbrances. A.
executed a trust deed to pay creditors. A cre-
ditor by judgment puisne to the articles of 1760
under A’s. directions filed a bill against him.
During the suit, in pursuance of a private agree-
ment, but without sanction of the court, A. and
B. conveyed the lands in ff. to X., who had no-
tice of the articles, the rent being reserved to B.,
and the price being applied partly to discharge
those prior incumbrances. In a subsequent sale
in the suit X. bought the ff. rent. B. was paid
the proceeds of the sale, without regard to his
children’s rights: all parties acting apparently
under a mistake respecting the effect of the ar-
ticles. A. and B. filed against X. a bill im-
peaching the sale for fraud. That bill was dis-
missed. B’s. son, claiming as remainderman in
tail under the articles, filed a bill. Held -—that
the ff. grant should be treated as a private
sale, and set aside, but that the purchase under
the decree should be upheld.—/itzmaurice v.
Sadleir, 91, E. R., 595. (C.)

AIDING DEFECTIVE EXECUTION.—See
Power, I.

 

AIR.—See EASEMENTS.

ALIENS AND FOREIGNERS —See Jews.

Respecting Plea of Alien Enemy. See
PuLeapine, Pies, IV.
Respectiny foreign Laws and Customs. See

Foreien Laws aAnpD Customs.

J. In GENERAL.
IJ, Aten Enemies.
III. Foreien Soverkiens.
IV. NaTuRALIZATION AND DENIZATION,
THEIR EFFECT.
V. MARRIAGE BETWEEN A SUBJECT AND
AN Atien. See 7 & 8 Vict. c, 66.

 

[ALIENATION ]

I. In GENERAL.

3. A conveyance to an alien vests a legal es-
tate in him until office found, and a conveyance
for trust in him vests in him an equitable estate
until the Crown establishes its right by infor-
mation in equity. But an alien cannot take
by act of law, e. g., by descent or courtesy.—
Dumoneel v. D., 13 I. E. BR. 92. (R.)

4. An alien’s wife can, by will, dispose of her
chattels real, situated in the United Kingdom.
as a femme sole.—Goods of Chateauvillard, 8 I.
Jur. N. 8. 197. (P.)

 

ALIENATION, —See AssianmEentT
— Of Wifes Estate. See HusBaND AND WIFE,
IIL.

— Of Charity Estate. See Cuarrry, ILI.
— Revocation of Will. See Wii, VIII.

5. The Crown may, by its prerogative, annex
to a grant in fee a condition against alienation.

The Crown granted an annuity in trust to
pay it into the hands of M. B. alone, her exe-
cutors or administrators, and that she was not
to have power to deprive herself thereof, either
by sale, mortgage, or anticipation. Held, that
a judgment registered as a mortgage under the
13 & and 14 V. c. 29, was an involuntary alien-
ation ; not a breach of the condition.—Fowler
v. #., 161. C. RB. 507. (R.)

 

ALIMONY.—See HuspanD AND WIFs, V., 4.

 

ALLOWANCE.

— To Bankrupt. See Bankruptcy, VIII.

— Of Certificate. See BANKRUPTcy, XVI.

— For Maintenance of Bankrupt. See Banx-
Ruptcy, VIIL, anD GUARDIAN AND WARD,
III,—Luwnacy, V.

— Of Exceptions, _ See PRACTICE—ANSWER.

— Of Exceptions to Report. See Practice,
Master’s REPORT.

— Of Costs, beyond Amount Taxed. See Prac-

TICE, Costs.
— Of Demurrer. See Practice, DEMURRER.
— Of Plea, See Practice, Pi&a,

— To Receivers. See PRActTICE, RECETVERS.

— To Agents. See PRincipaAL AND AGENT, IV.

— To Trustees. See Trusres, VII.

— To Purchaser, as an Abatement in Price.
See VENDOR AND Purcuaser, VI.

 

ALTERING.

— Deeds, Sce Dzxps, I.
— Wills, Revocation by. See Wiis, VIII.
— Or serene Deeds or Wills. See DEEDS,

aA

 

AMBASSADORS AND CONSULS. — See
PRACTICE.—PRIVILEGE FRON ARREST.

 

AMENDED BILL.
See Pieapine, Brt—Pracrice, BILL AMEN-

DED.
— Injunction on. See Practice, INJUNCTION.
— Answer to. Sce PRacrics, ANSWER.
Validity of ; when Agreements

AMENDMENT

—Of Fiat. See Bankruptcy, VI.
— Of Bankruptcy Petition. Sce BaNKRurTcy,
XVII.

— Of Deeds. See Drens, I.
— Of Answer. See Practice, ANSWER.
— Of Bill. See Practicy, Britt, AMENDMENT

or.
— Of Decree. See Pracricr, DECREE.
— Of Demurrer. See Practice, DemuRRER.
— Of Depositions. See Practicr, EvipEnce.
— Of Report and Certificate. See PRacticn,
Master’s Report.
— Of Order. See PracticE, ORDER.
— Of Patent. See Parent.
— Of Plea. See Practice, Pxwa.
— Of Subpena. See Practicn, Suppana.
Costs in Cases of Amendment. See Prac-
TICE, Costs.
Effect of Amendment, and obtaining leave to
make, without prejudice to Injunction.
See Practicg, [Nyuncrion.

 

ANCESTOR AND HEIR.
See HEtr.

 

ANCIENT LIGHTS.

See EASEMENTS.
See Practice, INJUNCTION.

 

ANNUAL RESTS.

See Account, VIII—Account, IV.—Morr-
Gace, III.

 

ANNUITY AND ANNUITANTS.
Proof of in Bankruptcy. See Bankruptcy,
XIII.

See Statutes, Construction or, II.
I. Vauipity or; wHen AGREEMENTS
FOR WILL BE ENFORCED.
II. Memorrat or Annuity: 17s ENROL-
MENT. SETTiInc ANNUITY ASIDE.
IU. Revier wen THE ANNUITY IS VOID
At Law.
IV. How Parasite; ouror waat Funp ;
WHEN SECURED.
V. Interest on: Depuctions FROM:
ARREARS OF.
VI. ArrorTionMENT, COMMENCEMENT,
AND DURATION OF.
VII. Repemprion anp REPURCHASE oF.
VIII. SatisFAction oF.
IX. Annuitants: THEIR RIGuTs snp
REMEDIES.

 

I. VaLIDITY OF; WHEN AGREEMENTS FOR
WILL BE ENFORCED.

1. The circumstance that repayment of the
purchase-money for an annuity being secured
by an insurance on the grantor’s life, who had
covenanted to pay the premiums—Held, not
to bring the case within the statute of usury.
Manly v. Hawkins, 1 Dr. & Wal. 363. (C.)

[ANNUITY.]

 

for will be enforced. 49

2. A., by deed of 1828, conveyed lands to B.
in trust for A. for life; then to*permit C., a,
married woman, to receive an annuity for her
separate use; subject thereto in trust for D.
in remainder. D., a party to this deed, cove-
nanted to pay the annuity to C.; and, being
subsequently in possession of the lands, mort-
gaged them for value to E., who had full
notice of C.’s rights. E. contended that the
deed of 1828, being voluntary, was void as
against his mortgage. Held, that it was not
voluntary quoad D. ; and that claimants through
D. were no better off.— Blake v. Hyland, 2 Dr.
& Wal. 3387. ,(C.)

8. Covenants by trustees in a separation
deed; that the wife would live apart; would
never seek restitution of conjugal rights ; would
support and educate the children; and the fact
that the wife had, in consideration of the pro-
vision thereby made for her, given up an
annuity to which she was entitled under a

| post-nuptial settlement ; Held, to constitute

valuable consideration for the annuity granted
by the separation deed, so’as to prevent it
being treated as voluntary.—Nizon v. Hamil-
ton, 1 I. E.R. 46; 2 Dr. & Wal. 364. (C.)

4. An agreement to pay a personal annuity,
for the joint lives of A. and B. will be specifi-
cally performed, and the defendant decreed to
pay it, on the ground that there is no adequate

,| remedy at law.—Swift v. S., 3 I E. R. 267.

(C.)

5. The purchase of an annuity by the solici-
tor and agent of the vendor, declared to be in
trust for the latter, upon the grounds of the
relation which existed at the time between
the parties.—Lawless v. Mansfield, 4 I. E. R.
1138, 188; 1 Dr. & War. 556. (C.)

6. HL, by his will, which was not attested so
as to pass real estates, directed that his pro-
perty should produce for his wife an annuity
of £100; for each of his daughters, M. and J.,
£100 per annum, for “themselves and their
children ;” and for his wife’s mother £100 per
annum. The annuities given to his wife and
her mother, after the death of the survivor, to
go to his three children, W., M., and J., in
equal shares. He bequeathed the residue of
his property to W. M. died. By acodicil H.
directed the £100 per annum, &c., provided
for M., to be equally divided between W. and
J. By a second codicil H. directed that, in
the event of W.’s death without issue male,
then after the decease of his (the testator’s)
wife and J., his remaining property should go
over. J. had no children at the date of the
will, or at the time of H.’s death, nor did she
take any other benefit under the will and
codicil than those mentioned. Held, that J.
took only a life interest in the respective gifts
to her.

When an annuity is bequeathed without
words of limitation, and unaccompanied by a
reference to some fund for its payment, the
legatee will not take more than a life interest.
Heron v. Stokes, 41. BE. R. 284; 2 Dr. & War.
89; 1 Con. & L, 270. (C.)—[Reversed, 12 Cl.
& F, 161.]
50 Validity of, Sc.

1. A., entitled to lands in fee, granted annui-
ties thereout to B. to secure debts due to him
by A.; and afterwards agreed to sell those
lands to C., in order to redeem with the price
a leasehold interest then under eviction. A.
represented to C. that B. would join in the
conveyance which A. executed to C., who
refused to let A. get the price till B. dis-
charged the lands of the annuities. B. refused
to do so unless he was paid. A. afterwards
sold the lands to B., who had notice of these
transactions. Held, that C. could not impeach
the consideration given for the annuities.—
Leader v. Ahearne, 4 Dr. & War. 495; 2 Con.
& L. 534. (C.)

2. The doctrine of civil death by profession
ceased to be law at the Reformation ; and was
not revived by the R. C. Emancipation Act.
Therefore the Court granted a receiver on a
bill filed to raise arrears of annuity devised
in trust for a lady (who afterwards became a
nun) during whatever period of her natural
life she continued unmarried.—Evans v. Cas-
sidy, 11]. E. R, 243. (R.)

3. In consideration of £200, an annuity of
£25 was granted out of premises held for a term
of years, during which that £200 and legal
interest might be more than repaid by receipt
of the annuity. The deed contained a clause
empowering the grantor to re-purchase the
annuity on payment to the grantee of the
sum of £200, and the arrears of the annuity:
Semble, not a usurious transaction,

Semble—That the decision in Kenny v. Lynch
(9 I. E. R. 530) cannot be upheld. Wade v.
Williamson, 2 I. C. R. 299. (C.)

4, A., tenant for life without a leasing power,
made, in 1832, a lease to F. for three lives, or
31 years. G., F.’s sister, petitioner in this
suit, was one of the c. g. vies. In 1834, F.
left the country, and had not been since heard
of. G. entered into possession of the demised
premises. The rent being in arrear, A. brought
an ejectment. Subsequently, A. and G. ar-
ranged that G. should pay the arrear, and
give up possession, and should receive an
annuity for life to the amount of the profit
rent in the premises. No written agreement,
except letters from A. and his son B., to G.,
relating to the payment of the annuity, was
produced. On A’s death, B., his heir-at-law,
took possession. B. was also A.’s personal
representative. B. refused to continue pay-
ing the annuity, because A. had no power to
create such a charge beyond his own life. A.
filed a petition praying an order that B.
should pay what was due on account of the
annuity; a decree that the annuity was an
equitable charge on the demised lands, and a
receiver, and that the annuity should be pay-
able out of A.’s assets. Held, that G. was
entitled to a personal annuity for life, to
which A.’s assets were liable. That the real
estate was not liable to the annuity. That
the petition was not bad for multifariousness
or misjoinder.— Gibbon v. Cloncurry, 71. Jur.
171. (C.)

[ANNUITY.]

 

Memorial, &c., of.

5. In Ireland, a creditor, having an annuity
ora charge on the lands, may, without filing a
petition to extend the receiver, obtain an
order that the receiver shall pay him his
annuity, or interest on his charge, in the
Ree priority.—Foss v. F., 151. C. R. 215.
R.)

II. Memoria, of Annuity, Enrotuent
THEREOF, SETTING ASIDE ANNUITY.

6. Ason joined his father in granting an an-
nuity, which was assigned to the defendant;
whom he allowed and encouraged to insure
the life for which the annuity had been
granted. Held, that the son could not after-
wards impeach the annuity as having been
obtained under an undue exercise of paren-
tal authority.— Rogers v. Bruce, Beat. Rep. 486.

CC.)

7. J., resident in Ireland, contracted to pur-
chase two annuities from L. and his wife, the
defendants, resident in England. The secu-
rity for the payment of the annuities was a
joint and several covenant on the part of the
defendants, a joint warrant of attorney to
confess a judgment in the Court of Q. B. in
Ireland, and a policy of insurance on the life
of one of the defendants, at an office in Lon-
don. The only property pledged for the
payment of the annuities was an annuity to
which the wife of L. was entitled for her
separate use, charged upon lands in Ireland,
and which she assigned to the plaintiff, and
appointed him her attorney in relation thereto.
The deeds were prepared in Ireland, on Irish
stamps, and sent to England, and were there
executed by the defendants. The considera-
tion money was paid to the defendants in
England ; but the deed was executed by the
plaintiff in Ireland. Held, that the transac-
tion was an English one, and within the
meaning of the English Annuity Act, 53 G. 3,
c. 141. A case being sent for the opinion of
the Court of C. P., the Judges certified to the
same effect.—Ferguson v. Lomax, 2 Dr. & War.
120. At Law, 5 I. Law Rep. 81. And on the
coming back of the Judge’s certificate, 8 Dr. &
War., 238. (C.)

8. A., residing at Brussels, in a deed prepared
in England, engrossed on English stamps, and
executed in England, was described as of R.,
in Ireland. It recited that W., an Eng-
lishman, residing in England, had agreed to
advance £8000, in consideration of A.’s pay-
ing W. £10,000 within six months after the
death of A.’s father, then aged seventy-six, if
As wife (aged forty-one) should sutvive his
father; to grant W. an annuity of £3000
a-year, to commence from the death of A’s
father; and that the payment of the annuity,
and of the £10,000, should be secured on A.’s
life estate in remainder, after the death of his
father, in estates in Ireland. The deed granted
to W. the annuity for the life of A.’s wife, to
be charged on the estates, and to be paid at
the dining-hall of Lincoln’s Inn, half-yearly,
with clauses of distress and entry. A demised
Memorial, &c., of.

the lands for ninety-nine years, to secure the
annuity and payment of the £10,000, and co-
venanted to pay the £10,000, and the annuity.

Semble, the contract was an English con-
tract; and the annuity deed not having been
enrolled, was avoided by the English Annuity
Act, 53 G. 3, v. 141.

Held, that, though the annuity was void,
the covenant to pay the £10,000 was not
necessarily void, and might be enforced.

The mere fact of an annuity being charged
on lands in Ireland, does not take it out of the
operation of the Annuity Act.— Walker v. Lor-
ton, 6 I. C. R. 3829. (R.)

1. A. and B., seised of lands in Ireland, and
entitled to the interest on a mortgage there,
conveyed the same to C. and D. for their lives,
and the life of the survivor, in trust to raise
by sale or mortgage a sum to pay off debts of
A.and B. By deed of the 26th of June 1840,
reciting a deed of even date, which was not
executed until the 15th of July 1840, by which
C. and D., with the consent of A. and B., and
A. and B. granted two annuities to E., to be
charged on and issuing out of the lands and
interest moneys in the recited deed men-
tioned; and also reciting A. and B.’s right to
«a sum of stock standing to the credit of a
cause in the Court of Chancery in England ;
and that they had agreed to assign the stock
by the recited deed to F. and G., to secure
the annities, said deed witnesssed that F. and
G. should call in the stock, and hold it upon
trust to pay the annuities. The deed of the
15th of July recited that A. and B. had agreed
with E. to sell the annuities which were to be
secured by warrant of attorney to confess
judgment against A. and B. in England and
Ireland; and by policies of assurance; and
that the annuities, together with the pre-
miums on the policies of assurance, were to
be payable out of the said lands and interest
moneys, and to be further secured by a demise
of the lands for a term of years, and by an
assignment of A. and B.’s interest in the
mortgage, and by the appointment of a re-
ceiver over the lands and interest of the
moneys to be assigned; and A. and B. thereby
granted the two annuities out of the lands and
interest moneys to E., with a clause of distress
and entry on the lands for the better securing
the payment of the annuity; and C. and D.
assigned the interest in the mortgage. By a
deed of January 1841, executed by C., D., and
E., but not by A. and B., reciting that a part
of the consideration money for one of the
annuities had not been paid, that annuity was
reduced. <A. and B., at the execution of the
deeds, were residing in England; but their
domicile was not clearly proved. C., D., and
F. were domiciled Englishmen. E. was an
Irishman. The negociation for the loan was
carried on in Ireland. The deeds were pre-
pared by English solicitors, engrossed on Irish
stamps, and executed in England by all the
parties. The warrants of attorney were also
executed in England. The consideration for
the annuities was paid in Ireland, in Irish
notes, and applied on the trusts of the deed
of 1839. Held, that the several deeds by

[ANNUITY.]

 

How payable, sc. 51

which the annuities were granted: and se-
cured were to be considered as one trans-
action.

That the grant of the annuities was an
English contract, and was void, by reason of
the memorials of the deeds not having been
enrolled under the Annuity Act, 53 G. 3,
c. 141.—Bannatyne v. Barrington, 81. C, R. 150.
(R.)—[Reversed, 9 I. C. R. 406; Dr. Rep.,
temp. Napier, 459. C. A.]

 

Il. ReLier WHEN THE ANNUITY IS VOID AT
Law.

2; An agreement to pay a personal annuity
for the joint lives of A. and B., will be speci-
fically performed, and the defendant decreed
to pay it, on the ground that there is no ade-
quate remedy at law.

“Whenever an annuity is charged on land,
I consider it perfectly settled that the party is
entitled to come into a Court of Equity for
that which is the appropriate relief in such
cases, namely, the appointment of a receiver.”
—[Per Lord Plunket, 274].—Swift v. S., 3 I.
E. R. 267, 274. (C.)

8. An annuitant is not entitled to the aid of
a Court of Equity to raise the arrears of his
annuity, without showing some special equi-
table circumstances.—Leech v. Tyndall, 3. I.
Jur. 53. (R.)

4. By indenture, P. granted to L. and S. re-
spectively, their respective executors, &., one
annuity for P.’s life, to be charged upon the
lands therein mentioned—/abendum to L. and
§., their respective executors, &c., for P.’s life.
P. covenanted with L. and §., their respec-
tive executors, &c., and their respective heirs
and assigns. The consideration money was
advanced in equal shares by L. and S. Held,
that the deed disclosed an intention that L.
and S. should take the annuity as tenants in
common, not as joint tenants; and that a
Court of Equity would carry out that inten-
tion.— Fleming v. F., 51. C. R. 129; 11. Jur.,
N.S., 31. (C.)

IV. How Parasxe, out of wHat’Founp,
WHEN SECURED.

5. A receiver having been appointed by an
annuitant, was extended by a prior mortga-
gee. Held, that the annuitant was entitled to
all rents received to the date of the condi-
tional order to extend the receiver, and still in
Court.—Davoren vy. Collins, 2 Jon. 807. (E.E.)

6. P., seised for life of B., with a power of
jointuring to the extent of one-third of the
clear yearly rents and profits thereof, and also
seised of W. in fee, by marriage articles re-
citing that he was seised of B., but not
specifying for what estate, charged B. with
a jointure for his intended wife, with the
usual power of distress. The articles further
provided that, if such distress on'B. should{fbe
ineffectual, the jointress should, in that event.
52 How payable,

enter upon and distrain W. for the jointure,
The jointure exceeded one-third of the clear
yearly value of B. The jointure being in ar-
rear, and a distress upon B. proving ineffec-
tual: Held, that W. was liable to the difference
between one-third of the yearly value of B.
and the jointure.

A grant to A. of liberty to distrain lands, if
he be not paid an annual sum, is a good grant
of a rentcharge to that amount charged upon
those lands.—Locke v. Darley, 2 Dr. & War.
256; 1 Con. & L. 406. (C.)

1. A testator, by will dated in 1805, gave R.
an annuity of £300; and by a subsequent
will, revoking the former, gave R. an annuity
of £600. The validity of the will of 1805 was
admitted. The will of 1812 having been im-
peached, a suit was instituted to establish it ;
Held, that, pending the litigation, R., although
in any event entitled to an annuity of £300,
was not entitled to an order that the receiver
in the cause should pay her out of the rents
of the estate the annuity of £300.

It is not the course of the Court to pay
annuities charged upon incumbered property
pending the litigation —D’ Alton y. Trimleston,
2 Dr. & War. 531. (C.)

2. The incumbent of a benefice granted an
annuity charged upon his benefice. The an-
nuity deed contained a clause that, if he
should accept any other preferment in lieu of

his rectory, it should stand charged with the |

annuity in priority to any other incumbrance.
Between the grant of the annuity and a
change of rectory, the grantor confessed a
judgment, on foot of which sequestration
issued, by which the profits of the second
benefice were sequestered; and the annuity
was unpaid. On bill to raise the arrears of
the annuity—Held, that the annuity was a
charge on the second benefice, and that the
grantee was entitled to a receiver, and to be
paid in priority to the judgments.—Battersby
y. Homan, 2.3. Jur. 121. (C.)

8. Bill toraise an annuity. Answer, by pur-
chaser of the lands charged, claiming to be
exonerated from paying it. Upon motion for
a receiver, plaintiff relied upon an affidavit,
showing that, to obtain payment of the arrears,
a receiver must be appointed over the sold
lands. The order of reference directed the
Master to appoint the receiver over part of the
lands sufficient to pay the annuity.— Bonynge
vy. Colgan, 21. Jur. 156. (R.)

4. Upon the sale of lands which were subject
to an annuity, the vendor covenanted that
certain other lands should be an indemnity
against the annuity. He afterwards, on his
marriage, settled the indemnity lands upon
himself for life, with remainders over; and co-
venanted that the settled lands were free from
incumbrances. The tenant for life suffered
the annuity to run into arrear. The arrears
were raised by a sale of part of the settled
lands. The remainder-man has an equity
against the tenant for life and against his as-
signee, under the Insolvent Act, to be recouped

[ANNUITY.]

 

out of what fund, §c.

the arrears so levied, out of the produce of the
life estate.— Coote v. O'Reilly, 1 Jon. & L. 455.
71. E.R. 356. (C.)

5. A., entitled to a life estate, granted an
annuity for his life, redeemable by him at the
end of five years, upon payment of the origi-
nalpurchase money. B., the annuitant, effec-
ted an insurance upon A.’s life, in a sum
slightly exceeding the amount given for the
annuity, and kept up the policy out of the an-
nuity. A., after the expiration of the five years,
offered to redeem the annuity, but required B.
to assign to him the policy. Held, that A.
was not entitled to the policy upon the re-
demption of the annuity, but that it was the
property of B.—Law yv. Warren, 6 I. E.R.
299. (C.)

6. Freeholds for lives renewable, and a free-
hold for lives and leaseholds for years, were
included in the same articles. The renewable
freeholds were sold by a prior incumbrancer,
but a balance of the purchase money remained
in Court. By a deed in execution of the
articles, treating all as subsisting estates, an
annuity was granted to A. and her heirs, and
another annuity to B. and her heirs, charged
on all the properties. The money in Court
was afterwards applied, without the -annui-
tant’s knowledge, to improving the chattel in-
terest, and the freehold for lives expired.

Held, that the money produced by the sale
continuing in the view of this Court real estate,
there was always a freehold estate, out of
which the annuity issued, and that, according
to the authority of Butt’s case the annuity de-
scended to the grantees’ heirs.

Semble, that even if it were otherwise, the
annuity, being originally a freehold, could not
be changed to a chattel by the subsequent
events.

Held, that a bill by co-plaintiffs to raise both
annuities was not multifarious.— Richardson v.
Nixon, 7 I. BE. R. 620. (C.)

7. A., having an annuity charged on an es-
tate for life, filed a bill and obtained a receiver.
A judgment creditor, whose judgment was a
charge on the inheritance, obtained an ex-
tension of the receiver under the Sheriffs’
Act. Held, that the judgment creditor was
entitled to have the entire rents applied to
pay off both the principal and the interest due
to him in priority to A., the Court having no
jurisdiction to fix an equity on the fund.—
Corbet v. Mahon, 8 I. E. R. 635. (C.)

8. A testator having covenanted by articles
to leave half his property to his wife C., devised
certain benefits to her, and devised the lands
of X. to A., subject to an annuity to B. C.
elected to abide by the articles, and swept
away half the lands. Held, that the annuity
also should abate moietively.

The report of Long v. Short, 1 P. Wms.,
corrected, and the doctrine of abatement con-
sidered.— Jackson v. Hamilton, 9 I. E. R. 480.
3 Jon. & L. 702. (C.)

9, B. bequeathed to A., his executors, &c., an
How payable, Sc.

annuity charged on all her property. Under
the decree, a specific sum of 3} per cent. stock
was transferred to the separate credit of A.
to pay the annuity. Subsequently the 33 per
cents. were reduced to 34, while other funds
were still in Court, though appropriated to
other purposes. Je/d, that A. was entitled to
have afurther sum invested in stock, to make
the dividends sufficient to pay the annuity.

1. The decree had been made in confirmation
of a report finding the sum which should be
appropriated. The order was now made by
setting down the cause for further directions.
Sed quere—if that was the regular course ?—
Commissioners of Charitable Bequests v. St.
Lawrence, 9 I. KE. R. 560. (C.)

1. Bill lies after death of grantee of an an-
nuity granted by an owner in fee for a term
of years determinable on the death of the
grantee, to recover the arrears by sale of the
ree v. Mason, 12 I. BE. R, 245.

C.)

2. A person entitled to an undivided fourth
of the lands of A., B., C., and D., by deed re-
citing that he was entitled to the lands of D.,
granted an annuity out of D. A petition
having been presented in the I. E. Court to
sell the grantor’s interest, the Court directed
a partition of the lands, and awarded A. to
the grantor, and B., C., and D. to the parties
entitled to the other three-fourths, without
notice tothe annuitant. Held, that as against
subsequent judgment creditors of the grantor,
the annuitant was entitled only to so much
of the produce of the lands of A. as was
equivalent to the one-fourth of the value of
the lands of D.—Jn re Wilkins, 4 I. C. R. 575.
(PB. C.)

3. A., possessed of the lands of B., for a term
of 31 years, renewable for ever, executed his
marriage settlement, whereby, after reciting
an agreement that the intended wife, if she
survived him, should have an annuity of £400
for life, “issuing out of and charged and
chargeable upon the lands of B.;” he assigned
B. to trustees, upon trust, after the decease
of A., “out of the yearly rents, issues, and
profits, to pay unto the wife, during her life,
a yearly sum of £400;” and after her decease,
in trust to assign the lands to A., if living ; or,
if he should be dead, then to his executors,
&c. The settlement contained covenants by
A. for quiet enjoyment and for further assur-
ance. Held, that the annuity was such a
charge as entitled the jointress to have the
lands sold for payment of the arrears.—ZJn re
Tyndall, 7 J. C. BR. 12; 21. Jur, N. 8, 429.
. E. C.)—[Affd. 7 1.C. RB. 181; 2 1. Jur,
N. S., 483. (C. A.)

V. InteREst on: Drpucrions From:
ARREARS OF.

4, S., to whom, by settlement, an annuity by
way of jointure, was secured in the event of
her surviving her husband, continued for many
years after her husband’s death, in 1809, to re-
ceive payment of itfrom her step-son, H., the
inheritor of the estate upon which the an-

[ANNUITY.]

 

 

Interest on, &e. 53

nuity was charged. In 1830, the annuity being
two years in arrear, 8. wrote to H. a letter,
wherein, after expressing her wish to do what
she could to serve him, she stated that she
would feel happy in henceforth giving up the
annuity, and would also make him a present
of the arrears then due. In 1834 H. died.
By will he charged his real estates with pay-
ment of an annuity to his step-mother. By
a codicil, however, after stating that he had
been most reluctantly constrained by circum-
stances to alter the bequest, he substituted/a
reduced annuity for that granted by his will.
This bequest was accompanied by a declara-
tion, that it was upon condition that 8. should
not seek to raise the annuity secured by the
settlement, which, the testator stated, she had,
in a letter written long since, expressed her
intention to relinquish in his favour. §. died
in 1837, having, by will, appointed the plain-
tiff her residuary legatee and sole executor.
After 1830, S. never sought for or demanded
either the annuity secured by the settlement,
or that granted by the will. The plaintiff
having filed a bill to raise the arrears of the
annuity secured by the settlement, the Court
dismissed it, so far as it claimed relief in re-
spect of the arrears which accrued in the life-
time of H., but directed an account of what
was due from his death to the death of §.—
Langley v. L., 21. HE. R. 313. CE.E.)

5. Interest on the arrears of an annuity is not
generally recoverable; but a trust or covenant
to indemnify the annuitant and annuity from
incumbrances will entitle the annuitant to in-
terest, where he has suffered a loss by reason
of a prior incumbrancer’s receiving the rents,
or, by collusion, permitting the grantor of the
annuity to receive. Martyn v. Blake, 51. E.R.
72; 3 Dr. & War. 125; 2 Con. & L. 65. (C.)

6. A, having a life interest in certain proper-
ty, raised a sum of money by way of annuity
charged upon it, insured his own life for the
sum advanced, in the name of B., the annui-
tant, and assigned it to B. A. subsequently
obtained a further advance of money from a
third party, C., upon an annuity charged upon
the same property, for the life of his father,
who was entitled to a life interest in remain-
der in the property. B.was paid off out of the
money then advanced. The policy was re-
assigned to A., who assigned it to C., asa
security for the principal sum advanced.
Subsequently, A. and his father granted C. a
larger annuity in lieu of the preceding, charged
upon the same property, for their lives and
the life of the survivor, redeemable on giving
six months’ notice. C. afterwards sold this
latter annuity, and assigned the policy to the
purchaser, who kept it up at his own expense.
The life on which the policy was effected
dropped, and the purchaser received the mo-
ney. The annuity being in arrear, a bill was
filed by the purchaser to raise the arrear ;
Held, that the surviving grantor was not en-
titled to credit for the amount of the policy
against the arrears of the annuity.—Milliken
v. Kidd, 51. BE. R. 396; 2 Con. & L. 442. (C.)

7. A testator, V., directed a debt of £25,000

!
54 Interest on,

to form part of his residuary estate, and be-
queathed that and all his other residuary
estate to his executors, on trust to raise and
collect the same, and from time to time to in-
vest the same, and to pay the interest or an-
nual proceeds among legatees, for their lives,
and on their deaths to pay the principal to
other legatees. He afterwards joined in a
deed, which provided that no interest should
be payable on the £25,000 during his life, and
postponed the payment of the principal till
three years after his death; and agreed that
the principal and three years’ interest should
be payable then by instalments of £2000
a-year; and that if those instalments were
punctually paid, no more than the three years’
interest should be payable. He afterwards,
by a codicil, declared that this arrangement
should not affect his will. Held, that the
three years’ interest did not form part of the
capital sum to be invested, but belonged to
the legatees for life.

V., as principal, and his son as a surety
(being successive tenants for life), joined in
granting an annuity, and, as a collateral se-
curity gave a joint and several bond and war-
rant, conditioned that if the annuity was in
arrear the annuitant might issue execution
against V. during his life, and after his death
against the son. Both having died, the son’s
executor paid several gales of the annuity.
Held, that he could recover only the principal
sums so paid, and no interest upon them,
against V.’s assets. But a fund of V.’s hav-
ing been originally assigned to secure the an-
nuity, which became part of his assets and
produced interest, the son’s executor was re-
couped to the full amount of this fund and
interest.— Caulfield v. Maquire, 8 I. E. R. 164.
2 Jon. & L.141. (C.)

1. By marriage settlement, in 1801, reciting
that C., the intended wife, was entitled to an
annuity, charged on the estate of her son by
a former marriage, and that the rents were
inadequate to pay it, C. assigned the annuity,
arrears, and future payments thereof, on trust
toreceiveso much as the rents would answer,
for the benefit of herself and her husband;
and to hold the arrears due and to become
due, in consequence of the insufficiency of the
rents, on trust, if her son D. attained age, &c.,
in her lifetime, to release them ; but if D. died
before her under age, &c., that the arrears
due, and to become due, should form a fund
subject to her appointment. It was declared
that until the arrears should become abso-
lutely vested in D., or subject to her appoint-
ment, the trustees should not require pay-
ment of them. D.attained age. Afterwards
the rents became sufficient to pay the annuity
and leave a surplus. Held, that though the
case was not directly within the deed, the ar-
rears since 1801 were not raiseable out of the
surplus rents as against D.’s mortgagee.—Bat-
tersby v. Rochfort, 8 I. EB. R. 284. (C.}—[Re-
versed: 91.E.R. 191; 2 Jon. & L. 481. (C.)]

2. An annuity charged on land by will,
comes within the meaning of the word rent,
in the 3 & 4 W. 4, c. 27, s. 42. Therefore no

[ANNUITY,]

 

Deductions from, se.

more than six years’ arrears are recoverable.
If it appears on the face of the bill that the
time operating as astatutable bar has elapsed
the Statute of Limitations may be relied on by
demurrer.—Ferguson v. Livingston, 9 I. E. R.
202. (R.)

3. An owner in fee granted an annuity fora
term of years, determinable with the grantee’s
life. Held, that a bill lay, after the grantee’s
death, to raise the arrears by selling the lands,
though there was not a trust term to secure
the annuity.—Harrison v. Mason, 12 1. E. R.
245. (C.)

4, A. possessed of considerable real and per-
sonal estate, primarily charged the real estate
with the payment of annuities to his wife, his
two daughters, and his son; and desired that
his trustees should, during the lives of his
wife and daughters, accumulate the rents
of the real estate, for the purposes of his will.
On their deaths he devised those estates over.
A. bequeathed £3000 33 per cent. stock to his
trustees, upon trust, out of the interest and
dividends, to pay an annuity of £105 to his
youngest daughter for life, and upon trust as
to the principal, if she married with consent
of the trustees, for her issue; but if she mar-
ried without such consent, then as to £1000
upon trust as she should appoint; and as to
the remaining £2000, that it should form part
of A.’s estate, to be applied as he should
direct. A. also directed that if the annuities
given to his wife and daughters, and son,
should be unpaid for four months after they
became due, the trustees should “out of the
accumulation of the moneys in their posses-
sion, exclusive of the £3000 left to his
youngest daughter, and which he directed
should be left untouched for the purposes of
his will, pay and assist in discharging the an-
nuities so in arrear; and should, out of the
moneys which should next come to their pos-
session, replace the sums” so advanced. He
directed that the trustees should, after first
paying those annuities, and the several lega-
cies charged upon one of his real estates, in-
vest the rents of that estate in government
stock, and pay thereout to his grandchildren
living at his death £300 each; and desired
that any deficiency in those legacies should
be made good out of his other real estates.
All his other property, of what nature soever,
including a policy of insurance, he devised
and bequeathed to his trustees, to invest for
the purposes of his will. As to the proceeds
of that policy and the remainder of his perso-
nal property invested, or to be invested, as
well as the overplus of his income not there-
by disposed of, excepting the £3000 left to his
youngest daughter, and excepting such parts
of his personal property as might be neces-
sary to be applied in payment of the annuities
and legacies bequeathed by him, he directed
that it should remain invested during the
lives of his wife and daughters, and until his
grandchildren should attain twenty-one or
marriage, and be paid to those grandchil-
dren, in equal shares, at twenty-one or
marriage, with interest at £5 per cent., to
Apportionment.

commence from one year after his death.
Then came a clause directing that any sur-
plus which should remain after satisfying the
several purposes of the will should be applied
by the trustees in paying, or assisting in pay-
ing, £5000, charged by settlement on one
of his real estates for the younger children
of his late son J.; and if such surplus should
be more than sufficient to discharge that sum,
then the surplus to be paid to such younger
children, in equal shares, on attaining twenty-
one or marriage; subject, however, to the
payment and discharge of all and every the
sums and charges thereinbefore charged and
created on said general fund by the will.
Held, that the annuity of £105, given to A.’s
younger daughter, was not reduced by the

7&8 Vic., c.5, which lowered the rate of inte- |

rest upon 3} per cent. government stock to
3} per cent.; and that the trustees should
make up any deficiency arising in the divi-
dends of the £3000 out of the accumulated
fund. That the residuary bequest to A.’s
grandchildren generally was inconsistent with
the residuary bequest to the younger children
of his son J., and that the latter bequest
must prevail.—tzpatrick v. Knaresborough, 13
I. E. R. 338. (C.)

1. Where there has been a long course
of vexatious litigation, and the creditor has
been restrained by an injunction from assert-
ing his rights, the Court will give interest on
the arrears of an annuity.—Hollier v. Hedges, 5
I. Jur. 105. (C.)

2. A bond given to secure an annuity re-
cited that G. had agreed with K. for the sale
to him of a deferred annuity ; and that upon
the treaty for the purchase of the annuity,
it was agreed that the payment of it should
be secured by the bond of C. in a sufficient
penalty, and by his warrant of attorney to con-
fessjudgment. Quare—In the absence of any
further evidence of a contract to grant the
annuity, could arrears of the annuity be re-
covered to a greater amount than the penalty
of the bond ?—Cooke v. The Marquis of Done-
ga, 91. Jur. N.S. 41. (C.)

 

VI. APPORTIONMENT, COMMENCEMENT AND
DURATION OF.

3. A., by will, gave an annuity, which he di-
rected his eldest son, W., to pay to his
daughter, B., for life, with power to B. to
dispose of it to all or any of her children,
by any writing, witnessed by two or more
credible witnesses. B., by will reciting this
annuity as one for ever, devised it to her two
sons, share and share alike. Subsequently,
W., by will, ratified the annuity given to B.,
and as bequeathed by her; and directed his
eldest son, his heirs and assigns, to pay it.
Held, a perpetual annuity —Burke v. Lambert,
2 Dr. & Wal. 608. (C.)

4. A gift, by will, of personal annuities to A.
and B. for themselves and their children, they
not having any at the date of the will, or at
the death of the testator, gives them the

[ANNUITY.]

 

Commencement of, ce. 55

absolute interest.—Heron v. Stokes, 3 I. E. R.
163 (C.)—[Reversed on re-hearing, 4 I.'E. R.
284; 1 Con. & L. 270; 2 Dr. & War. 89. (C.)
Decree on re-hearing reversed, 12 Cl. & Fin.
161.]

5. V., lessee for lives renewable for ever, de-
mised his estate, subject to an annual rent of
£400, to H., for life. V., in his will, reciting
this demise, and that he was entitled to the
profit rent of £400, devised the rent amongst
his three sisters, A., B., and C., as follows :—
to A. £150 yearly, to her sole and separate
use, for ever, without her husband’s control,
issuing and payable out of the said lands; to
B. £150, in the same terms; to C. £100, in the
same terms: “said three sums making toge-
ther the sum of £400 yearly, reserved and
payable to” V., “by said lease so made to said
H.” V. then devised the reversion, share and
share alike, amongst his four sisters, A., B., C.,
and D., wife of H., after payment of those
bequests.

By codicil he revoked the gift of £150
yearly to A., and devised £100 yearly, part of
said £150, to A.’s husband for life ; remainder
to M. for life; remainder to M.’s issue male
for ever, share and share alike. The remain-
ing £50 V. devised to D. for ever. Held,
that the annuitants under the will and codicil
were entitled to perpetual interests in their
several annuities.

An intention to pass the inheritance will
be effectuated, though testator in express
terms dealt only with a limited interest in
that inheritance.—Ashton v. Adamson, 1 Dr.
and War. 198; 1 Con. & L. 325. (C).

6. V. devised lands to hold, from his widow’s
death, on trust to secure an annuity; the first
payment thereof to be made on the Ist day of
May after his decease. Held, that the annuity
commenced on V.’s death, though his widow
was then alive.—Jackson v. Hamilton, 9 I. E.
R. 480; 3 Jon. & L. 702. (C.)

7. V. bequeathed to his trustee and executor
all the property of which he should die seised
or possessed, upon trust (inter alia) to “re-
ceive and retain, for his own proper use and
benefit, a sum of £250; and also to retain and
keep thereout for his own use one annuity of
£20 yearly, to commence immediately after
my decease, to reimburse him for his trouble
and expense in receiving the said rents, and
keeping the necessary accounts.” Held, that
this annuity was to endure only during the
continuance of the trusts created by the will.
—Henrion v. Bonham, Dr. Rep. t. Sug. 476. (C.)

8. By deed reciting that it was intended
that a school should be erected at A. an
annuity was granted to the Incorporated
Society, in trust to be applied to the mainte-
nance of the said school in such manner as in
such like schools they should direct. A school
was established, but afterwards discontinued.
Held, that the general object being charity,
the annuity did not cease with the discontinu-
ance of the particular _school.—Zncorporated
Society v. Price, 71. E.R. 260. (C.)
56 Apportionment, &c.

1. Freeholds for lives renewable, «a free-
hold for lives, and leaseholds for years, were
included in the same articles. The renewable
freeholds were sold by a prior incumbrancer ;
but a balance of the purchase-money re-
mained in Court. By a deed in execution of
the articles, treating all as subsisting estates,
an annuity was granted to A. and her heirs,
and another annuity to B. and her heirs,
charged on all the properties. The money in
Court was afterwards applied, without the
annuitant’s knowledge, to improving the chat-
tel interest ; and the freehold for lives expired.
Held, that the money produced by the sale
continuing, in the view of this Court, real
estate, there was always a freehold estate,
out of which the annuity issued, and that,
according to the doctrine of Butt’s case, the
annuity descended to the grantees’ heirs.

Semble—That, even if it were otherwise, the
annuity, being originally a freehold, could not
be changed to a chattel by the subsequent
events.— Richardson y. Nixon, 7 I. E. R. 620.
(C.)

2. Bequest of an annuity to a widow, for life,
provided she did not marry again. LHeld, that
the annuity determined on her second mar-
riage, and that the proviso was not a condition
subsequent, so as to be void, as being in
restraint of marriage.—Zn re Corkers, 1 I. Jur.
316. (C.)

3. A., by will, granted an annuity chargeable
on ten houses, three of which he afterwards
conveyed to the annuitant. Held, an extin-
guishment of the annuity, either by analogy
to the common law, which holds a rent extin-
guished by the purchase by the grantee of a
rentcharge of portion of the land out of which
it issues; or because the grant of the three
houses revoked the will.—Hewson vy. Carolin,
4,1. Jur. 214. (C.)

4, V. bequeathed a renewable leasehold for
years, upon trust to permit A. to enjoy a part
of the lands during her life, and after her
death, upon trust to permit her son R. to
enjoy the same, subject thereto to pay to his
wife an annuity for life; and then to pay
to J. D. and R. a yearly sum of £20 a-piece
during their respective lives; after their
respective deaths the same to be paid to their
respective children. If any of them (J. D.
and R.) should die before he attained age,
or should leave no issue, his annuity should
go to, and be equally divided between the
survivors or survivor; after payment of the
annuities, to permit W. to receive out of the
remaining profit rent £70 a-year; the remain-
der of the profit rent to be retained to dis-
charge renewal fines. After the death of his
wife, and after payment of the rent, renewal
fines, and the three annuities of £20, to permit
W. to receive the rents and profits (except
A.’s portion); remainder to X. for life; re-
mainder to the first and other sons of X.—
Held, that the annuities bequeathed to J. R.
and D. were perpetual.— Courtenay v. Gallagher,
5 1. C. R. 356.(C). [Reversing Rolls decision,
Ibid, 154. (R.)]

[ANNUITY.]

 

Satisfaction of.

5. A devise of property in trust for J., sub-
ject to an annuity to J.’s mother, to and for the
sole use of the mother and her child. Held, on
the construction of the whole will, that the tes-
tator did not intend the annuity to be perpe-
tual— Alford v. M-Causland, 7. I. Jur., N.S.
316. (C.)

G. A. bequeathed all his estate, real and
personal, in trust to pay the rents and divi-
dends to his wife for her life; and directed
that after her death his real and personal
estate, and all moneys which might have been
got in, or might be still due and owing, should
be paid as he should by a codicil or codicils
direct and appoint; in default of such direc-
tion to his wife, as his residuary devisee and
legatee. By a codicil he left an annuity of
£600 to W. for life; if W. married and had
children, the £600 per annum was to go to
them, in what manner W. might think pro-
per; if he left no issue, the £600 per annum
to go to E. and his family, to be divided as E.
might think proper. Held, that W. had power
to dispose of it among his children as a per-
petual annuity, and that there was a trust for
them in default of appointment.— Warren v.
Wright, 121. C. R. 401. (R.)

7. E., for valuable consideration, granted to
D. and his heirs an annuity of £35, charged
on freehold lands, upon trust for M. until her
death or marriage. By the same deed he co-
yenanted to pay M. £500 upon her marriage
with the consent in writing of H. M. married
without the consent of H., but with the know-
ledge and assent of E., who, by a deed sub-
sequently executed, conveyed the same lands
to trustees, upon trust to secure to M. an
annuity of £17. 10s. Od., “the same to be paid
and payable to her until such time as she
should be paid or sufficiently secured in a
sum of £500; the same to be for her sole and
separate use and benefit.” Held, that the
annuity of £17. 10s. Od. did not terminate on
the death of M.— Watson v. Powell, 14 I. C.
R. 38. (C.)

 

VII. REDEMPTION AND PuRCHASE OF.

 

VIII. SatisracTIon oF.

8. By deed in 1812, lands, subject to incum-
brances, were settled on A. for life ; remain- -
der to his first and other sons in tail. In 1816
A. granted to B. annuities charged on A.’s
life estate. In 1818 A. paid off some of the
prior incumbrances which were assigned to a
trustee for A.’s benefit. In 1820 A. and his
trustee jointly assigned to C., for value, those
incumbrances. J/e/d, that the arrears of the
interest of these charges were incumbrances
on A’s life estate, prior to the annuitant, as
against whom the interest payable on the
charges out of the life estate had not been
merged by A.’s dealings therewith. Harman
v. Forster, 1 Dr. & Wal. 637. (C.)

9. A testatrix, having devised several annui-
ties, directed that they should be a lien only
upon the yearly income of her lands, real,
freehold, and chattel real, but not upon any
Annuitants ;

other personal estate in money; and that if
that yearly income fell short of] paying the
annuities, the deficiency should equally and
proportionably: be upon all such annuities,
each to receive according to the magnitude
of such annuity, and in proportion thereto;
but no such deficiency to be vested upon her
personal estate. After satisfying the above
annuities, she devised the residue of her pro-
perty, real and personal, to the residuary
legatee. The rents proved insufficient to dis-
charge the annuities in full. Held, that they
were satisfied by payment of the proportionate
shares, and that the arrears were not charged
on the future rents.—Fitzgerald v. O’ Connell, 7
I. Jur. N. 8. 6. (C. A.)

TX.“ ANNUITANTS : THEIR RIGHTS AND
REMEDIES.

1. If there is a legal remedy to recover a rent-
charge, a bill in equity will not lie to recover
it, merely because of the difficulty of proceed-
ing at law. The rule is, that a party must
abide by the legal remedy which his deed pro-
vides for him, unless the remedy is defeated
by fraud, or rendered insufficient by some
contingency.

An annuity deed contained a covenant to
pay arent-charge, and for further assurance
of it. The grantor became insolvent, where-
upon questions arose touching the applica-
bility of rents, received by his assignees, to
discharge arrears. A judgment, and execu-
tion thereon, were had for some past gales.
Questions of satisfaction respecting them were
raised, and the assignees submitted to the
appointment of a receiver in a suit founded
onthe deed. The receiver brought a fund into
Court. Held, that these circumstances gave
the Court jurisdiction to entertain the suit.

The annuity was collaterally secured by a
judgment. Breaches were suggested, and
executions’ issued for some gales, and new
bonds and judgments were taken for other
gales; Sembdle, that such gales were satisfied
and extinguished, although these proceedings
proved unproductive.

Semble—The Court, having made an erro-
neous decree to account, is not bound to con-
tinue the error by further proceedings in the
suit taken on the return of the Master's re-
port.—Roberts v. Hughes, Beat. Rep. 417. (C.)

2. A receiver, appointed in an annuity cause,
was extended to the matter of a petition pre-
sented by a prior mortgagee under the Mort-
gage Act; Held, that rents received before
the date of the conditional order to extend
the receiver, and which were still in Court,
belonged to the annuitant.—Dawvoren v. Collins,
2 Jon. 807. (E. E.)

3. C., mortgagee of lands held under leases
for lives renewable for ever, became bankrupt.
The head landlord brought an ejectment for
non-payment of rent. The assignees redeemed
the premises within the statutable period, and
entered into possession by their agent. An
annuitant, claiming under a settlement prior

[ANNUITY.]

 

57

to the mortgage, filed a bill. Held, that the
assignees were chargeable as mortgagees in
possession, and bound to appropriate the
rents gnd profits received by them in discharg-
ing the redemption money before discharging
the mortgage.— Sloane v. Mahon, 1 Dr. & Wal.
189. (C.)

their Rights, gc.

4. The Court of Chancery has in annuity
cases a jurisdiction concurrent with that of
Courts of Law, and can therefore entertain a
suit to raise the arrears of an annuity, though
the annuity deed enables the annuitant to dis-
train, and the bill does not aver the existence
of any substantial difficulty to prevent plt.
availing himself of that remedy.—Manly v.
Hawkins, 1 Dr. & Wal. 363. (C.)

5. A., entitled to a mortgage on lands vested
in a trustee for him, agreed that C., a subse-
quent annuitant, should have precedence over
his debt, and joined in demising the lands to
a trustee forC. A.’s trustee did not join in
the demise. A. remained in possession till
the grantor of the annuity died. Held, that
C. was not debarred from recovering more
than six years’ arrears, but it came strictly
within the exception in the 3 & 4 W. 4, ¢.
27, s. 42.—Drought v. Jones, 2 I. E. R. 303. (C.)

6. There is not any priority in favour of an-
nuitants over legatees in a will, whether of
real or of personal estate.—Creed v. C., 41. E.
R. 525; 1 Dr.& War. 416. (C.)—[Revd. 11 Cl.
& F. 491.)

7. Upon the admission of the heir-at-law that
the testator’s will, which had been lost, had
been duly executed and attested, and that
thereby lands had been devised to him sub-
ject to a perpetual rent-charge; and upon
evidence of the contents of the will by two
witnesses, who heard it read, but could not
state that it was executed and attested as by
law required, further than that the person
reading it read out the names of the testator
and of certain persons, as if they had executed.
and attested it, and upon proof of the rent-
charge for 35 years up to the year preceding
the filing of the bill; the Court declared that
the lands were well charged with the annuity,
and that the heir-at-law, and the persons
deriving with notice under a settlement of the
lands executed by him on the marriage of his
son, and duly registered, and also the judg-
ment creditors of the heir-at-law, were bound
to give effect to the devise of the rent-charge.

By marriage settlement a rent-charge was
granted upon trust for the husband and the
issue of the marriage. The lands were granted
to other trustees for a term of years upon
trust to secure the rent-charge. One trustee
of the rent-charge admitted that, before the
execution of the settlement, he had notice of
a prior incumbrance on the lands; and one
trustee of the term,,denied that he had such
notice. No evidence of notice was given.
Held, that notice to the trustee of the rent-
charge sufficed ; but, there not being any issue
in esse, the Court would not declare that their

8
58 Annuitants’ Rights.

interests were bound by the prior incum-
brance, but declared that the trustee had
notice of it.

Costs given against a party who, hy his
want of caution in settling an estate, without
giving notice that it was subject to a prior
demand, rendered a suit by the prior incum-
brancer necessary to establish his rights.—
Wise v. W., 2 Jon. & L. 403. (C.)

1. An annuitant in possession of rents and
profits, to pay himself arrears of an annuity,
cannot tack judgments to his demand for the
a oe v. Douglas, 1 I. Jur., N.S. 146.

)

2. An owner in fee, having granted an
annuity for a term of years determinable with
the life of the grantee; Held, that 4 bill lies
in equity after the death of the grantee, to
raise the arrears by a sale of the lands, though
there be no trust term to secure the annuity.
Laches in enforcing an annuity charged on
lands in settlement, whereby a remainderman
is charged with arrears payable by a prior
tenant for life, is no defence to a suit by the
annuitant.—Harrison v. Mason, 12 I. E. R.
245. (C.)

3. A bill in equity does not lie to recover
the arrears of a rent-charge, unless it be
proved that there are circumstances which
render the legal remedies useless or very diffi-
cult.— Brady v. Fitzgerald, 12 I. E. R. 273. (C.)

4. Lands held under a church lease were
devised in trust to pay the head rent and
renewal fines ; after payment thereof to suffer
certain annuitants to receive annuities there-
out; and subject thereto to a devisee, who
purchased the fee under the Church Tem-
poralities Act, and gave a mortgage for the
purchase money. Held, that the annuitants
were not bound to contribute to the interest
on the mortgage.—Hilhouse v. Tindal, 13 I. E.
R. 209. (C)

5. An annuitant is not entitled to the aid
of a Court of Equity to raise the arrears of
his annuity, without showing some special
equitable circumstance.

There is no valid distinction between an
annuity and arent created since the statute
of guia emptores.—Leech v. Tyndall, 3 I. Jur.
53. (R.)

6. Where there has been a long course of
vexatious litigation, and the creditor has been
restrained by an injunction of the Court from
asserting his rights, the Court will give interest
on the arrears of an annuity. But the Court
is in the position of a jury, and will take all
the circumstances of the case, the detention,
and the amount of consideration given, &c.,
into consideration, and will act so as not to
mulct one party for his opposition, but to
compensate the other for his loss.—Hbollier v.
Hedges, 51. Jur. 105. (C.)

7 The powers of a receiver for the recovery
of rents will be given to an annuitant put

[ANNUITY]

 

Answer.

into possession by the Court. He will, if
necessary, be allowed to proceed against the
tenants on the covenants contained in the
leases previously made to them under the
Court.— Walcott v. Condon, 5 I. Jur. 145. (R.)

8. A., possessed of the lands of B. for a
term of 31 years, renewable for ever, executed
his marriage settlement, whereby, after re-
citing an agreement that the intended wife,
if she survived her husband, should have,
during her life, an annuity of £400, “issuing
out of and charged and chargeable upon the
lands of B.,” they were assigned, upon trust,
after his decease, “out of the yearly rents,
issues, and profits, to pay unto the wife,
during her life, a yearly sum of £400,” and
after her decease in trust to assign the lands
to the husband, if living, and, if dead, then
to his executors, &c. The settlement con-
tained covenants by the husband for quiet
enjoyment and further assurance.

Held, wpon appeal, that the annuity was
such a charge as entitled the jointress to have
the lands sold for payment of the arrears.—
In Re Tyndall, 71. C. R. 12; 2 I. Jur, N.S.
429, (1. E. C.)—[Affd. 71. C. R. 181; 2 I.
Jur. N., 8. 483. (C. A.) ]

, ANNUITANTS.
See Annutry, [X.

 

ANNULLING FIAT.
See Bankruptcy, VI.

 

ANSWER,

See Preapine, ANSWER—PRACTICE, ANSWER.

— Refusal by Party to answer further. See
Pieapine, ANSWER.
— In conjunction with demurrer. See PLEaDING,

ANSWER—PLzEADING, DeEMURRER.

— In conjunction with plea. See PLEADING,
ANSWER.

— When it over-rules demurrer.
DEMURRER.

— When it over-rules plea. See PLEapine,
Puza.

— Plea ordered to stand for. See PLEapine,
PLEA.

— Practice when plea ordered to stand for answer.
See Practice, Piza.

— Form of. See PracricE, ANSWER.

— Signature of. Ibid, 3.

— Swearing. Ibid, 4.

— Schedules to. Ibid, 5.

— Filing, &¢., within what time. Ibid, 6.

— Ordered to be put in within a given time. Lbid, 7.

— Commission to take. Ibid, 8.

— What time given to answer. Ibid, 9.

— Effect of. Ibid, 10.

— Further. Ibid, 11.

— Separate. Ibid, 12.

— To amended bill. Ibid, 13.

— Amendment of. Ibid, 14.

— Evasive. Ibid, 15.

— Exceptions to, Ibid, 16.

See PLEapIne,
Of [APPORTIONMENT.] Rent. 59
—R ; mdal. Ibid, 17. I. Or Rent.
_— Soa Tid. 19. : Ii. Ge Fines. See Leases, VIII. 3.

— Who is bound by. Ibid, 20.

— Liberty to withdraw. Ibid, 21.

— Priority of. Ibid, 22.

— Attachment for want of. See Practicz,
ATTACHMENT.

— Reading affidavits against.

See Practice,
EvipEncg, 11.

 

— When evidence. Ibid.

— What evidence good against. Ibid.

— Effect of reading.
ANTICIPATION.

— Wife's powers of. See HusBanp and WIFE,
Iii.

 

APPEAL

— In Bankruptcy. See Bankruptcy, XXII,
Practicr, APPEAL, passim.

— Effect of, in staying payment of Costs. See
Practice, Costs.

— As to Costs. See Practics, Costs.

— Costs on. See Practicn, Costs.

— Further evidence on. See Practicr, Evi-
DENCE.

 

APPEARANCE,

See Practice, APPEARANCE, Passim.
— Gratis. See Practicr, APPEARANCE.
— Undertaking to appear. See Ibid.

 

APPLICATION OF PAYMENTS.

See Destor anp Crepiror, IV.

 

APPLICATION OF PURCHASE MONEY.

See VENDOR anD Purcuaser, XIV.

 

APPOINTMENT.

— To Children under a Power. See Power, VI.

— Limitations in Default of. See Powsr, IX.

— Illusory Appointment. See Power, 1.5.

— Of Arbitrators. See Ansrrration, IV.

— Of Guardian, See Guarpian & Warp, II.

— Of Receiver. See Banxrurtcy, X.

— Of Inspector. See ibid.

— Of Assignees. See ibid.

— Of Solicitor to fiat. See ibid.

— Of Commissioners. See Bankruptcy, VII.

— Of Executors. See Execurors, I.

— Of Committee of Lunatic. See Lunacy, V.

— Of Receiver in Lunacy. See ibid.

— Of Receiver generally, See Practtce—ReE-
CEIVER.

— Of Trustees _ generally.
Trusreszs, I

— Of Trustees.
RUPTOY, X.

See Practice—

See Cuarity, II.—Banx-

 

APPORTIONMENT.

— Of Annuities. See Annuities, VI.
— Of Contribution. See Contrisvtion, II.
— Of Costs. See Practice—Costs.

 

TI. GeneRaLiy: IN OTHER CaAsEs.
I. 1. Or Rent GENERALLY.
1. Generally.
2. Under the Incumbered Estates Act and Landed
Estates Act.
8. Under the Railway and other Acts.

 

SraTurTss.
23 & 24 G. 3, c. 46, ss. 1, 2, 3.

Rents made apportionable on death of te-
nant for life, or determination of lease on
death of a life.

4&5, W. 4, c. 22 55.2 § 3.

Rents on leases made after Jan. 16, 1834,
and other payments due at fixed periods under
will or instrument, coming into operation
after that period, made apportionable.

23 & 24 Vie. c. 154, ss. 49 & 50,

Provide a new law of apportionment. Sec.
34 provides that the tenant may continue in
possession till the next gale day, paying the
entire rent to the succeeding landlord, who is
to pay the proportion to the representative of
the deceased landlord. (By this Act the two
former statutes are repealed.)

 

1. A., seized in fee of premises subject to
a quit-rent, agreed with B., his attorney, and
tenant of a portion of the land, to sell B.
the reversion of that portion. B. bound him-
self, his heirs, executors, &c., and that portion
of the lands, to pay the whole quit-rent. A.
conveyed the reversion to B. by deed, wherein
B. covenanted for himself, his heirs, execu-
tors, &c., to pay the whole quit-rent, and to
indemnify A., his heirs, and assigns, and his
and their estates, real and personal. About
that time A. sold to C. the residue of the pre-
mises discharged of all quit-rent. This resi-
due vested in the plaintiff, who, having been
obliged to pay the whole quit-rent, filed his
bill against D. (B.’s heir, devisee, and admin-
istrator), praying that the plaintiff’s payments
for quit-rent might be decreed a charge on
D.’s portion ; or paid out of B.’s real angl per-
sonal estate which had come to D.; or that
the quit-rent might be apportioned, and D.
decreed to pay his portion. Held, that the
suit for apportionment of the quit-rent was
maintainable.—Hatton v Waddy, H. & J. 601.
(E.E.)

.2 A tenant under the Court, for seven years
pending the cause, whom the purchaser’s in-
junction has dispossessed, in the interval
between two gale days, is bound to pay rent
for the period during which he occupied after
the last gale day. It will be referred to the
remembrancer to ascertain the amount of
such rent, having regard to the season of the
year when the broken gale occurred, and to the
nature of the demised premises.— Jameson v.
Farrer, 31. E.R. 513. (B.E.)

3. A tenant of lands, let under the Court
for seven years pending a judgment creditor’s
60 Of Rent,

petition, gave possession to the purchaser be-
fore the term expired; the lands having been
sold out of Court, with the petitioner’s con-
sent, to pay their demands. Held, that the
tenant must pay rent for the interval during
which he continued in possession from the
last gale day to that on which he gave posses-
sion to the purchaser.—Juckson y. J., 5 I. E.
R. 591. (E.E.)

1. By indenture of 1535, estates were settled
on A. for life; remainder to B. for life; re-
mainder over. B. entered into possession ;
and so continued until his death, on the 28th
of January 1853. There were three classes
of tenants on the estates; some held under
leases of 1805; one under a lease of 1851;
others as tenants from year to year. C., ad-
ministratrix of B., claimed, under the Appor-
tionment Act (passed in 1834), a proportion
of the gale of rent accruing due from the
previous gale day up to the day of B.’s death,
upon all the lands. Held, that C. was entitled
to a proportion of the rent which was pay-
able under the lease of 1851. The petition at
first did not contain a schedule setting forth
the tenure under which the tenants held. It
was directed to be amended by annexing a
rental.

Queere, Whether the rents due under the
leases of 1805, or due by the tenants from
year to year; were apportionable under the
statute ?—Swanv. S., 6 I. Jur. 298. (R.)

2. The4 & 5 W. 4, c. 22 (Apportionment of
Rents Act), does not apply to rents reserved
on tenancies from year to year, without writ-
ing. B. seized in fee, subject to tenancies
from year to year, by will, in 1840, devised to
A. for life, remainder over. A. lived for some
years without determining the tenancies.
Held, that the rents were not apportionable
under the 23 & 24 G. 3, c. 46 Ir.)

B. devised the legal estate in other lands,
held in fee-farm and for lives renewable, to
trustees, in trust for A. for life, remainder
over. Held, that the rents reserved on the
tenancies from year to year, created by the
testator and reserved by leases before the
passing of the 4&5 W. 4, c. 22, were not ap-
portionable under that Act.—Knight v. Bough-
ton, 12 Beav. 312, doubted.—Zn re Alexander,
41LC.R. 257. (R.)

3. When a landlord dies between two gale
days, the rents payable by his tenants are
made by the L. and T. Act (23 & 24 Vic., ec.
154), apportionable between his executor and
his devisee—Hall v. H., 111. Jur., N.S. 244.
(R.)

 

I. 2. Unper tar IncumBerED Estates Act
AND Lanprep Estates Act.

Statutes 12 & 13 Vic., c. 77, s. 37, repealed by
21 & 22 Vic., c. 72, s. 72, gave power to the
Courts to apportion rent of lands sold.

4, This Court, though it can sell property in
lots under the 12 & 13 Vie., c. 77, s. 24, has not
jurisdiction under sec. 37, to apportion the

[APPORTIONMENT.]

 

Generally.

head-rent between the several lots, unless the
petition seeks only a sale of part of the lease,
or shows a bona fide intention to sell only a
part.—In re Wrixon, 2]. Jur. 167. (1.E.C.)

5. The I. E. Court has, under the 12 & 13.
Vic. v. 77, 8. 37, a discretionary power to ap-
portion the head-rent; but will not exercise
that power unless satisfied that the landlord
will not only suffer no loss, but be put to no
serious inconvenience.

Sembie, the spirit of that section is, that the
Court shall apportion “head-rents,” and not
“rack-rents.”—Jn re Hughes’s Estate, 3 I. Jur.
152. CL.E.C.)

6. Application to have the head-rent appor-
tioned. There were 210 acres, of which a
portion was to be sold. The head-rent pay-
able out of the entire was £60. Motion
granted, because that course would not put
the landlord to any serious inconvenience.
—ZIn re. Jackson's Estate, 31. Jur. 247. (LE.C.)

7. The power given to the L. E. Court by
the 21 & 22 Vic., c. 72,s. 72, is discretionary ;
and exists both in the case of an unincum-
bered and of an incumbered estate. The
landlord’s consent is not necessary ; but the
Court requires clear proof that his interest is
not made in any appreciable degree less se-
cure, less enjoyable, or less marketable. If
there is any reason to believe that the peti-
tion has been presented not for ad. f. sale,
but to obtain an apportionment, the Court
will make an order which will apportion the
rent only if the proceedings be duly prosecu-
ted, and the sale had—dZn,re Comyn’s Estate,
11 LC. R. 330. (L.E.C.)

8. Where lands ordered for sale are held
jointly with other lands under a grant, the
Court has not jurisdiction to apportion the
rent between the sold and unsold portions.
Casus omissus in the L. E. Court Act.—Cas-
san’s Estate, 91. Jur., N. S$. 72. (L.E.C.)

 

I. 3. UnprER THE RaILwayY AND OTHER ACTs.

By the Lands Clauses Consolidation Act,
8 & 9, Vic., c. 18, ss. 115 to 120, power was
given to Railway Companies, with the assent
of the landlord and tenant, or if not, then by
arbitrators, to apportion rent on lands, a part
of which has been taken by the Railway Co.
This Act was amended and extended by the
14. & 15 Vic. c. 70, and 23 & 24 Vic. v. 97.

 

Il. ApporTIoNMENT or Fines. Sce Leases,
VII. 3.

IU. ArportionMENT GENERALLY.

9. A fund secured by mortgage was, by
marriage settlement of 1827, transferred to
trustees, upon trust to permit the husband to
receive the interest of the sum (whether it
should continue invested and secured as it
was then, or should be invested in any other
security) for life; and after his decease upon
other trusts, with a power to invest the fund
In General.

in the public funds or real securities, so that
the same, with the interest, dividends, &c.,
should continue and be applied to the same
uses, trusts, and purposes. The mortgage was
paid off, and the money invested in 34 per
cent. stock. Held, that the representative of
the husband, who died in August, was not
entitled to any part of the dividends due in
the following October.—O’ Brien v. Fitzgerald,
11.C. R. 290. (R.)

1. A., tenant for life granted a rentcharge,
chargeable on lands for A.’s life, provided
the grantee should so long live, with a power
of distress, and a covenant for further assur-
ance, to a relative, as a suitable provision for
her; with an apportionment clause in the
event of her death between two gale days.
A. died between two gale days, leaving the
grantee surviving. Hed, that, independently
of the 4 & 5 W.4, c.22, there could be no ap-
portionment.

That the Court could not imply an intention
that there should be an apportionment on A.’s
death; having regard to the express appor-
tionment clause on the death of the grantee
in the lifetime of A.

That the deed imposed no personal liabi-
lity on A. to pay the rentcharge.

Annuities, independently of the statute, are
not apportionable unless granted for the
maintenance of infants, or married women
living separately from their husbands. —
Leathley v. Trench, 8 I. C. R. 401. (R.)

 

APPRENTICE.

See MASTER AND SERVANT.

 

APPROPRIATION.

— Of Funds. See Destor anp Crepiror, V.
— Of Payments. See ibid, TV.

— To pay off Charge. Sce Esvare, VIII.

— To pay off Debts. See Executor, XI.

I. In GENERAL.
II. WHat AMOUNTS TO; WHO BOUND BY.
TI. WHEN DIRECTED TO MEET FUTURE Pay-
MENTS.

I. In GENERAL.

2, After the death of the tenant for life of
a settled estate, his acknowledgment of an
arrear of interest due on a mortgage affecting
the inheritance, binds the remainderman, so
as to save the bar of the 3 & 4 W. 4, ¢. 27,
s. 42,

A minor’s estate was subject to a mortgage
debt, on which more than six years’ interest
was due. To the Master, on inquiry what
charges affected the minor’s estate, and what
amount of principal and interest was due
thereon, it appeared that payments for in-
terest generally had been made. Held, that
the payments should be appropriated to the
interest which accrued within the six years.

A mortgagee presented to the L. E. Court
a petition, upon which he did not proceed,

.

[APPROPRIATION.]

 

What amounts to. 61

for sale of a minor’s estate. The Master, on
reference to him, inquired what charges af-
fected the minor’s estate, and what amount
of principal and interest was due thereon?
Held, that the mortgagee was entitled to six
years’ interest from the date of filing his
petition under the order, and not from the
date of filing his charge in the L. E. Court.——
In re Fitzmaurices, 15 I. C. R. 445. CR.)

 

II. Wuat amounts TO APPROPRIATION; WHO
IS BOUND BY.

8. Where an incumbrance overrides the
entire estate, as between several successive
owners, the last of several successive tenants
for life is liable only for the interest accruing
during his own life.

But when, by arrangement, a particular
rent was allocated to pay the interest on a
judgment, and an arrear of interest accrued,
which had just reached the penalty at the
death of the first tenant for life, and the
second tenant for life paid the judgment off,
and had it assigned to a trustee, and his exe-
cutors afterwards received upwards of twenty
years’ arrears of the rent; Held, that this
arrear was properly applicable in favour of
the remainderman, to the arrear of interest
on the judgment, especially as there had been
family settlements of the estate, treating the
rent as so allocated, and giving the enjoy-~
ment of the estate to the remainderman,
subject to a specific provision for the second
tenant for life.—Caulfield v. Maguire, 8 I. E.
R. 164; 2 Jon. & L. 141. (C.)

4. W., seised of X., confessed a judgment,
and afterwards joined in a settlement on his
son’s marriage, under which the son, A., was
made tenant for life of X., remainder to
his children; W. covenanting that X. was
free from incumbrances. W. then made his
will, giving large legacies, and making A.
executor. Y., one of the legatees, married.
By her settlement the legacy was assigned
to trustees, of whom A. was one. He exe-
cuted the settlement. A suit was instituted
by the judgment creditor in 1835, the bill
praying a general account and administra-
tion of the assets. In 1836 a bill was filed by
the parties entitled to Y.’s legacy, praying
the proper and usual accounts, the judgment
creditor being a defendant. Soon after A.
disposed of some assets. An order was made
on consent to transfer a considerable sum
to the credit of the legatee’s cause, without
prejudice to the rights of. the various par-
ties at the hearing, the judgment creditor
not being represented on the motion. The
order directed the dividends of the sum
invested to be paid to the party entitled to
the interest under Y.’s settlement; and the
bill was dismissed as against the judgment
creditor. The assets being wasted, A.’s child-
ren filed a bill, claiming as specialty creditors
to have X. indemnified against the judgment
under the covenant in A’s settlement. An
order was obtained to transfer the fund in
Court to the credit of this cause. Held, that
there had been no appropriation of the fund,
62 To meet

either as against the specialty creditors, or as
against the other legatees in W.’s will; but
that it still continued assets.

The purchaser for value of a legacy being
merely the purchaser of a chose in action, has
no higher equity than the legatee himself —
Jennings v. Bond, 81. E. R. 755; 2 Jon. & L.
720. (C.)

1. A testator, entitled to a charge on the
estate of S. and to government stock, be-
queathed, amongst other legacies, £2500 to
M., directed that the charge should be called
in to pay the legacies, and that the annual
interest of the charge in the meantime and
the stock should be appropriated in payment
of two legacies of £500, to be paid first out of
the stock, the deficiency, if any, out of the
interest on the charge, and, if these should
prove insufficient, out of the principal. The
executor having proved the charge in a suit
against the estate of S., received and misap-
plied a great portion of it, and then executed
an agreement, that £2500 of the sum reported
on the charge should be paid to M., and that
she should be considered the actual owner.
That sum was afterwards reported payable to
her. The assets being deficient, in conse-
quence of the devastavit, Held, that the trans-
actions between the executor and M. were
not an appropriation tantamount to payment,
so as to give her priority over the other lega-
tees.—Molloy v. French, 11 I. E. R. 376. (C.)

2. V., by a codicil willed that after his wife’s
death the children of his two brothers, E.
(who already had children) and F. (should F.
marry and have children), should have £1687,
which V. got by his mother’s death, and
which was charged on the estate of B., in
such proportions as his wife should will it.
V. afterwards invested that sum in 33 per
cent. stock.

After his death, in 1803, his widow and exe-
cutrix, A., wrote a letter to E., inclosing a copy
of the will, and stating that the stock in
which the money had been invested should
ever be held sacred by her for E.’s children ;
and if it did not increase it should never
diminish. In 1816, an injunction was ob-
tained by E.’s children, then minors, to
restrain the sale of the stock by A, under a
misapprehension that she was about to sell it.
They came of age at different times between
1820 and 1838. The stock remained un-
touched until 1853, when A. died. Held, that
the letter amounted to an appropriation of
the stock to the legacy by A., which must
be presumed to have been assented to by
the children of E. as they came of age.—
Thomas v. T., 31. C. R. 399. CR.)

Tl. Wen APPROPRIATION IS DIRECTED TO
MEET FUTURE PAYMENTS.

3. A testatrix bequeathed to A, his execu-
tors, &c., an annuity charged on all her
property. Under the decree a specific sum of
33 per cent. stock was transferred to the
separate credit of A to pay the annuity.
Subsequently the 3} per cents. were reduced

[APPROPRIATION.]

 

Payments.

to 3}, while other funds were still in Court,
though appropriated to other purposes. Held,
that A. was entitled to have a further sum
invested in stock to make the dividends sufii-
cient to pay the annuity.

The decree had been made in confirmation
of a report finding the sum which should be
appropriated. The order was now made by
setting down the cause for further directions.
Sed, quere—if that was the regular course ?—
Commissioners of Charitable Donations v. St.
Lawrence, 9 I. HE. R. 560; 3 Jon. & L. 561. (C.)

4, This Court will not, at the instance of the
covenantee, impound real assets, to meet a
contingent breach of a covenant (to pay rent)
entered into by the deceased in his lifetime.
oe vy. Snow, 21. C. R. 254; 51. Jur. 57.

5. P. bequeathed all his property, real and
personal, to trustees, to be distributed by
them as trustees in the following manner,
i. e., to pay his daughter A. the interest of
£6000 at £5 per cent. for life, and after her
death to be divided among her children, share
and share alike, the portions to be paid to
each of the boys at twenty-one, and to each
of the girls at her marriage, provided her
husband should settle a jointure equal to her
portion; if not, the portion not to be paid,
but the interest at £5 per cent. on her own
receipt, and the principal to be paid to her
children (if any), share and share alike; if
she died without children, then to be paid
to her surviving brothers and sisters, share
and share alike; and to pay his daughter B.,
the wife of Y., and her three children, the
interest of £6000 at £5 per cent., ze, to B.
£180, to her son H. £40, to her daughter F.
£40, and to her daughter M. £40, making
among them £300 a-year, the above payment
to continue during the life of B.; after her
death the £6000 to be appropriated among
her children in the same manner, and on the
same terms and conditions as required re-
specting A. and her children; and to pay his
daughter C. £300 a-year for life; after her
death £100 a-year to her husband Z.; and
should C leave any children, they were to
have £6000, the same as A.’s children, the
£100 a-year to be paid to Z. to be considered
part of the interest. P. gave all the residue
of his property to his son, one of the trustees,
and authorised them to advance any part
of his daughters’ portions, with their consent,
to provide for any of his grandchildren. £1300
was paid with B’s consent to advance H.
Held, in a suit instituted by the son to have
sums set apart to provide for payment of the
legacies, and to have the residue transferred
to him, that as the £300 a-year bequeathed
to B and her children was a distinct bequest
from that of the principal sum of £6000, stock
sufficient to provide for the interest at £5 per
cent. on £4700 (the remainder of the legacy
of £6000, minus £1300 paid to H), should be
set apart during the life of B.— O'Neill v. Bil-
ling, 2 I. C. R. 80. (R.)

6. Rent falling due after the death of the
lessee, under a covenant for himself, his heirs,
Reference to.

executors, &c., to pay it, is not a debt which
can, under the Statute of Fraudulent Devises
(4 Anne, c. 5, Ir, 3 W. & M, co. 14, Eng),
be enforced against his real estate in the
hands of his devisee.

A. holding premises under a lease, made in
1789, for three lives, with a covenant for per-
petual renewal, demised them in 1803 to B.,
for 900 years. That lease contained cove-
nants by B. for himself, his heirs, executors,
&c., to pay rent, and keep the premises in
good repair during the term, and at the end
of it to deliver them up in such repair. In
1830 the last c. g. vie in the lease of 1789 died.
In 1827 and in 1835 renewals were made to a
trustee for claimants under the will of A.
That trustee died in 1840. In that year ano-
ther renewal was granted to another trustee
for the same persons. B.’s executrix, in 1838,
assigned his interest in the premises to C.,
whose administrator assigned them in 1846
toD., a pauper. Subsequently to the death
of B., the rent payable to the claimants under
A. became in arrear, and the premises fell out
of repair. Upon a suit in equity, instituted
by them, Held, that the real estate of B. in
the hands of his devisee was not liable to
the rent.

That the personal estate of B. in the hands
of his executrix continued liable for breaches
of the covenants to pay rent and to repair.

That the personal estate of C., the assignee
of B.’s interest in the lease of 1803, was, in
the hands of his administrator, liable for
breaches of the covenants to pay rent and
to repair, which occurred between the date
of the assignment to him in 1888 and that
of the assignment by his administrator to D.
in 1846.

That D would be liable for breaches of
both covenants which might occur during
the period of his occupation. _

Semble—That the petitioners were entitled
to substantial damages for breaches of the
covenant to repair, and not merely to such
a sum as would, if kept at interest until
the end of the 900 years, then suffice to
put the premises in repair.

Marriott v. Cotton, 2 Car. & Kir. 553; Doe
v. Rowlands, 9 Car. & Pay. 734; and Jenkins
v. Bryant, 6 Sim. 603, doubted. Dacnamara
v. Vincent, 21. C. R. 481; 41. Jur. 197. (C.)

 

APPURTENANCES.

 

ARBITRATOR; ARBITRATION AND
AWARD.

See Practice, Prea—Sratutes, Construc-
TION oF, IT.

I. WHAT MAY OR MUST BE REFERRED TO.
II. Supmission To.
Ill. Revocation or SvuBMIssion; 17s
EFFECT.
IV. ARpitRraTor.
1. Appointment of: who may be.
2. His powers and duties.
V. Umpire.
VI. Awarp.

[ARBITRATION.]

 

+

Revocation of. 63

1. Within what time to be made :~en-
largement of time: its effect.
2. Proceedings on: how it may be set
aside.
3. Its validity: when set aside or re-
lieved against.
4. Its effect: who bound by.
5. Making it a rule of Court: en-
forcing award.
6. Construction of.
7. Jurisdiction over. '
8. Its confirmation : other matters re-
specting tt.

 

VII. Witnesses: THEIR ATTENDANCE BE-
FORE ‘ARBITRATOR: THEIR PRIvI-
LEGES,

 

I, Wuat MAY OR MUST BE REFERRED TO
ARBITRATION,
1. A depositor in a Savings’ Bank cannot
maintain a suit in a Court of Equity against
the trustees; the 9 G. 4, c. 92, s. 45, having

‘established arbitration as the only mode of

proceeding in disputes between depositors and
the institution.

A suit at Law and not in Equity would, but
for the statute, be the propér remedy.— Cooke
vy. Courtown, 6 I. E. R. 266. (R.)

Il. Susmtssion TO ARBITRATION.

2. A suit at Law and one in Equity, depend-
ing between the same parties, and relating to
the same matters, being referred to arbitra-
tion, two submissions were executed, one in
each cause. A document, purporting to be
an award, entitled in both causes, was exe-
cuted by the arbitrators; and subsequently
two other documents, one in each cause.
Held, that there should have been only one
submission and one award, each entitled in
both causes.

Semble, the first document was the award,
and the arbitrators were then funct? officio —
Gray v. M‘Cabe, 7 I. E. R. 206. (B.)

3. A suit in equity to withdraw the case
from arbitration cannot be maintained after
an agreement to refer to arbitration (naming
the arbitrators, containing a covenant not to
sue, power to examine witnesses, and to make
the submission a rule of Court), so long as
the arbitration may be proceeded with.— Dims-
dale v. Robertson, 71. E.R. 536; 2 Jon. & L.
58. (C.)

4. J., a ptf, by his next friend, in the second
of two causes, referred by consent to arbitra-
tion, was a minor. The consent was signed
by J.’s attorney, but not by his next friend.
Semble, the submission did not bind J.

Practice when a submission is entered into
in a cause to which minors are parties.—
Fagan v. F., 12 I. EB. R. 488. (R.)

 

II. Revocation or Supmission ; irs Errecr.

5. An agreement to refer to arbitration
(naming arbitrators, containing a covenant
not to sue, and a power to examine the wit-

‘
64 Revocation.

nesses and make the submission a rule of
Court), prevents a party to it from filing a bill
to withdraw the case from arbitration, so long
as the arbitration may be proceeded with—
Dimsdale v. Robertson, 7 I. E. R. 536; 2 Jon. &
L. 58. (C.)

1. After execution of a deed of submission
to arbitration, E., a party whose rights were
principally affected, married. Her husband
took no part in the proceedings. The arbi-
trator’s award recited the marriage, and the
entering of a rule to proceed against E. and
her husband, and awarded that they should
pay certain sums; and that C., another party,
was personally liable for costs. The arbi-
trator had refused to adjourn the case to
enable C. to procure evidence; and the
plaintiff had declared that he would not seek
to make C. personally liable, in consequence
of which he consented not to examine C. on
his behalf. A conditional order was obtained
to confirm the award, unless cause in M.
Term. Cause was shown against making the
order absolute in the Sittings after M. Term.
Held, that the marriage of E. revoked the
jurisdiction of the arbitrator; that the hus-
band did no act to waive the revocation; and,
not being a party to the submission, could not
be bound by it.

Objections dehors the award are examinable
on showing cause against its confirmation.

That the arbitrator, in refusing to adjourn
for further evidence, had acted precipitately,
and the plaintiff had broken the compact with
C. in making him personally liable. This
Court would therefore not lend its aid to
effectuate an award which it does not know
to be just.

Semble—The 3 & 4'Vic., c. 105, s. 63, does
not apply to Courts of Equity—Rochev. R., 8
I. E. R. 638. (R.)

IV. ARvitTRATOR.

1. oe of: who may be.
2. His powers and duties.

 

IV. Arpirrators’ Powers anp DotizEs.

2. A consent, entered into in two causes,
one of which was instituted to preserve assets
pending a suit for administration in the Pre-
rogative Court, referred to arbitration all
matters in dispute between the parties in rela-
tion to the subject matter of the suits respect-
ively ; the rights of the parties in relation to
the property of the testator, and the costs of
the several proceedings instituted by the par-
ties in reference to the said property. The
costs in the Prerogative suit were not brought
under the notice of the arbitrators; and the
award did not decide the right to them.
Held, that the award was not objectionable
on that ground. ;

That the arbitrators had not jurisdiction to
decide who was entitled to administration.

When a submission is of several specific
things, the arbitrators should make their
award on each matter submitted to them.
But when the submission is of all matters in

(ARBITRATION. ]

 

Award.

difference, or of all disputes, without specify-
ing them, they need only make their award of
those things of which they had notice. One
of the parties was entitled to a field, part of
the property in dispute. Held, that the arbi-
trators had jurisdiction to decide that he was
entitled to a way of necessity, although that
matter was not specifically referred to them.
Fagan vy. F., 12 1. E. R. 483. (R.)

 

 

V. Umpire.
VI. Awarp.
1. Within what time to be made: enlarge-
ment of time: its effect.
2. Proceedings on: how it may be set aside.
3. Its validity : when set aside, or relieved
against.
4. Its effect : who bound by.
5. Making it a rule of Court: enforcing
award.
6. Construction of.
7. Jurisdiction over.
8. Lts confirmation: other matters respect-

ing it.

 

VI. 1. WirHIn wHaT TIME AWARD MUST BE
MADE: ENLARGEMENT OF Timer: 17s Errect.

3. A suit in equity cannot be sustained
after an agreement to refer to arbitration
(maming the arbitrators, and containing a
covenant not to sue ; power to examine wit-
nesses, and to make the submission a rule of
Court) while the arbitration may be proceeded
with.

By such a deed between A. and B., A. was
to pay B. a sum of money in four months.
which he also secured by confessing a judg-
ment. A. did not pay it. B. had him arrested,
The deed provided for the attendance of the
parties before the arbitrators, and their ex-
amination. Held, that the imprisonment of
A., being the consequence of his own breach
of contract, gave him no better equity.

Compensation was to be awarded to A. out
of X. for any inequality in a partition of Y.
X., by an event contemplated at the time,
became insutticient ; Held, that A. could not
be relieved on that ground.

The reference provided for the appointment
by A. and B. of two arbitrators, who were,
before proceeding with the reference, to ap-
point a third; and that any two arbitrators
“for the time being,” should from time to
time make awards, provided the “last” award
should be made before July 1843, or such
other time as any two arbitrators “for the
time being” should appoint; and that any
two “for the time being” should have power
to extend the time for making the “last”
award, whether the time had previously ex-
pired or not; a Master of Q. B. was, “as
soon as conveniently might be” after the
reference, to appoint an umpire, who was to
act if no two of the arbitrators should agree ;
if A.’s or B.’s arbitrator should be unwilling,
&e., to act, the third arbitrator “for the time
Validity of.

being,” if there be such, and if not, the um-
pire “for the time being” was to appoint a
proper person to be arbitrator in his stead.
The arbitration expired in July, no award
whatever having been made under it. <A.’s
arbitrator declined to act. Neither third ar-
bitrator or umpire had been appointed. Some
time after, the Master of Q. B. being applied
to by B., appointed an umpire who nominated
an arbitrator for A., who, in conjunction with
Bs arbitrator, nominated a third, and ex-
tended the time. Held, that the time for the
refereace was duly extended.—Dimsdale v.
Robertson, 7 I. E. R. 586; 2 Jon. G&L. 58. (C.)

1. A deed of submission to arbitration of
all matters in dispute between former part-
ners in trade, provided that the award should
be made within a given time, under seal.
Held, that an award, not under seal, made
after the expiration of the allotted time, con-
stituted no barto a suit in equity by one of
partners against the others, praying that the
accounts of the partnership should be taken.

That the award was a mere nullity.—
Murphy v. Keller, 21. C. R. 417; 31. Jur. 187.
(C.)

 

VI. 2. Proceedings on: how it may be set aside.

 

VI. 3. Validity of Award: when set aside or
relieved against.

2. An award, made at Quarter Sessions
under the 4 G. 4, c. 99, and 1 &2 Vic., c. 109,
‘reducing the amount of tithe-rent charge,
recited, contrary to the fact, that the notice
required by these statutes had been signed by
three persons duly qualified. On motion to
show cause against the appointment of a
receiver under the 1 & 2 Vic., c. 109; Held,
that notwithstanding that recital, the adjudi-
cation was void, the notice not having been
signed by three duly qualified persons.—
on vy. Shiel, 31. E. R. 185; FL & K. 53,
)

3. There were two submissions; one in an
action at Law, and another in an Equity suit.
First an award was made in the action and
suit, and then two awards, one in each, were
made. Held, that there should have been
only one submission and one award, and that
when the first award was signed the arbitra-
tors were functi officio —Gray v. M‘Cabe, 7 I.
E. R. 206. (R.)

4, The bill impeached a sale of goods, and
lease of a house made to plaintiff by defend-
ant; and prayed an account of their value,
and that if the sum paid and the rent reserved
were too much, defendant should refund the
- difference with interest. By consent, reciting
the prayer of the bill, the parties submitted
“all said disputes and differences between the
parties in the cause” to arbitration. The
arbitrators by their award, reciting that they
were directed by the consent to find the value
of the goods and rent of the house, took the
accounts and awarded a certain sum to the

[AWARD.]

 

Setting aside. 65

plaintiff, including interest. One of the arbi-
trators subsequently made an affidavit that
he was under the impression the consent
obliged him to take the account and award
interest. Held, that the Court was justified
in looking at the affidavit, and as it appeared
the arbitrators had misconstrued the consent,
and omitted the primary inquiry whether the
sale was fraudutent, the Court set aside the
award.— Connolly v. C., 10 I. E. R. 272. (C.)

5. A consent, entered into in two causes, of
which one was instituted to preserve assets
pending a suit for administration in the Pre-
rogative Court, referred to arbitration all
matters in dispute between the parties in rela-
tion to the property of the testator, and the
costs of the several proceedings instituted by
the parties in reference to the property. The
costs in the Prerogative suit were not brought
under the notice of the arbitrators, and the
award did not decide the right to those costs.
Held, that the award was not objectionable
on that ground.

The testator devised lands to trustees in
trust for his nephews P. and T., or such one
of them as the trustees should at any. time
appoint. The bill in the second cause prayed
that the trusts of the will should be carried
into execution in relation to the freehold
estate, and the right of the plaintiff ascer-
tained. The trustees did not sign the sub-
mission. P. was in exclusive possession of
the lands, and was the testator’s heir. The
arbitrators awarded mutual releases, but did
not determine the rights of the parties. Held,
that the arbitrators should have decided the
rights of the parties, subject to the power of
appointment, and that the award was bad as
they had not done so.— Fagan v. F., 121. E. R.
483. (R.)

6. By a deed of submission to arbitration
of all matters in dispute between former part-
ners in trade, it was provided that the award
should be made within a given time under
seal. Held, that an award not under seal,
made after the expiration of the allotted
time, constituted no bar to a suit in equity
by one of the partners against the others,
praying that the accounts of the partnership
should be taken.

Held also, that the award was a mere nullity.
Murphy v. Keller, 2. C. R. 417; 3 I. Jur. 187.
(C.)

7. A petition was filed by A. and B., for
specific performance of an agreement to grant
a lease alleged to have been made with A.,
B., and C., by D. An action of replevin was
also pending by A. against D. A submission
to arbitration, entitled in the replevin suit,
was entered into and made a rule at N. P.,
referring all matters of difference between
the parties in that cause, as well the subject
of the action as of the equity matter then
pending between them in the Court of Chan-
cery. The arbitrators made two awards; one
in the replevin suit of A. v. D., whereby they
found a tender sufficient, and awarded D. to
pay the costs ; the other in the Chancery suit

9
66 Setting aside.

of A. and B. v. D., whereby they found that
an agreement for a lease was entered into
between D. and B., and that a sum was paid
as a fine for a lease of lands in the possession
of said party, and awarded that a lease be
granted by D. to A. Ina suit by A. against
D. to carry the latter award into specific exe-
eution ; Held, that the award in the Chancery
suit was invalid, as it did rfot embrace the
matters in dispute in the replevin suit, and
that the two awards could not be treated as
one.

The Court will not decree the specific exe-
cution of an award which is invalid at Law.—
Kinneen v. Persse, 7 I. E. (C.) 438. (R.)

 

VI. 4. Lis effect: who bound by.

VI. 5. Making Award Rule of Court:
enforcing it.

1. A submission to arbitration made a rule
of Court by consent, in a cause, is within the 10
W. 3, c. 14. UIr.); Garde v. G. 4 Law Rec.
N.S. 115, followed ; Dennis v. Deane, 8 Law
Rec., N. S., doubted. Goggin v. Downing, 18
I. E.R. 60. (R.)

 

VI. 6. Construction of.

VI. 7. Jurisdiction over.

2. When arbitrators have signed an award,
they are functi officio, and cannot make a new
one.—Gray v. M‘Cabe, 71. E. R. 206. (R.)

3. That one of the arbitrators states that
he put a mistaken construction on the order
of reference, is not a ground for setting aside
the award.—Connolly v. C.,101. E. R. 104.

®.)

4, When an action and a suit were pend-
ing, and a submission was made in the action
to refer both matters. Held, that an award
in the suit which did not embrace the mat-
ters in the action, was bad, and so of another
award in the action, as the arbitrators could
not make two awards.—Kinneen v. Persse, 7 I.
C.R. 438. (R.)

VI. 8. Confirmation of Award: other matters
relating to awards.

5. An award directed that A. should pay
B. a sum of money, and that B. should pay
A. half the costs when taxed. Held, that a
tender by A. of the balance between the sum
awarded and the half of the taxed costs was
not a compliance with the award.— Watt v.
W., 71. E.R. 334. (E.E.)

6. A suit at Law and one in Equity, de-
pending betweeen the same parties, and rela-
ting to the same matters, being referred to
arbitration, two submissions were executed,
one in each cause. A document purporting
to be an award, entitled in both causes, was
executed by the arbitrators, and subsequently

[AWARD.]

 

Confirming.

two others, one in each cause. Held, that
there should have been only one submission
and one award, each entitled in both causes.

Semble, the first document was the award,
and the arbitrators were then functi officio—
Gray v. M‘Cabe, 71. E. R. 206: (R.)

7. It is no ground for refusing to confirm
an award, valid upon the face of it, that one
of the arbitrators, after the signing of the
award, states by affidavit that he had put a
mistaken construction on the order of refe-
rence to arbitration; such mistake not ap-
pearing on the award, or any document con-
temporaneous with it—Connolly v. C., 101.
E. R. 104. (R.)

8. A draft award stated, and the arbitra-
tor certified, under the Railways Act (/r.),
1851 (14 & 15 Vic., c. 70), a sum as the sum to
be deposited in respect to land required by a
Municipal Corporation for the construction
of waterworks. The Corporation lodged that
sum, and went into possession. The final
award awarded a smaller sum. Pending a
traverse, the Court refused to refund the dif-
ference to the Corporation.—In re The Dublin

 

Corporation Waterworks, 171. C. R. 16. (R.)
ARGUING.
— Exceptions to Answer. See Practice,

ANSWER.
— Exceptions to Report.
TER, REFERENCE.
— Demurrer. See Practicr, DEMURRER.
— Plea. See Practice, Piea.
— Cause. See Practicr, Hearne.

See Practicr, Mas-

 

- ARMY.
Assignment of Half-pay. See ASSIGNMENT.

 

ARMY AGENT.

 

ARREARS.

See Lanptorp and Tenant, VII—Hus-
BAND AND Wire, V.—JOINTURE—RENT-

 

CHARGE.

— Of Annuity. See Annuity, V.

— Of Dower. See Dower, I.
ARREST.

See ARBITRATION, VII.—Banxrurrtcy, VIL,
VII.—Practice—PrivILecr FRomM AR-
REST.

 

ARTICLED CLERK.

9. A college student was bound apprentice
to an attorney for five years; graduated, and
served for three years after taking his degree,
but without being bound anew. Held, that
under the1& 2 G. 4, c. 48, he might (with
his master’s consent) be admitted an attor-
ney, though the original term of apprentice-
ship had not been completed.—Zn re Collum,
1L E.R. 278. (&.E.)
[ARTICLED CLERK.—ASSETS.]

1. In computing the term of apprentice-
ship for an attorney, the Court reckons by
terms. Therefore, an apprentice who has
served twenty terms is entitled to be admit-
ted.—In re Powell, 11. E.R. 828. (E.E.)

2. An attorney’s apprentice, upon his mas-
ter’s death, entered another attorney’s office
to complete his apprenticeship ; but one term
elapsed before his indentures were assigned.
Held, that he should have credit for that term ;
and should be admitted, since, including it, he
had served twenty clear terms.—Jn re O’Brien,
11. E.R. 480. (E.E.)

8. Anattorney’s apprentice was, during his
apprenticeship, a salaried clerk in a six-clerk’s
otiice. Held, nevertheless, that he was en-
titled to be admitted a solicitor—Zn re Lyons,
11. E.R. 267; 1 Dr. & Wal. 327. (C.)

4. Unless under special circumstances, there
will not be any deviation from the rule, that
the Court, when computing the period of ap-
prenticeship, will not allow credit for time
elapsed before payment of the stamp duty on
the indentures—Exp. Sterne, 21. HE. R. 378,
(R.E.)

5. The Court would not exercise its dis-
cretion in relaxing the statutable rule regu-
lating the period of apprenticeship, when the
apprentice had been incapacitated by illness
from serving five of the twenty terms, though
he had attended the office for three years
before he was bound, and his master consen-
ted to his admission now.

Semble, in such cases, the Court will not
consider applicant’s family affairs, unless his
father, having been an attorney, there is
danger that the business will be lost to the
family.—Jn re Dease, Long. & T. 654. (H.E.)

6. The Court will not vacate the enrol-
ment of indentures of apprenticeship on the
ground that the Benchers were deceived, and
ought not to have allowed the apprentice to
become such.—Zn re M‘Colgan, 5 1. E. R. 481.
(R.E.)

7. In a proper case, the Court has jurisdic-
tion to vacate the enrolment of indentures of
apprenticeship. Neither the humbleness of
applicant’s origin ; nor his haying been a pro-
cess-server of civil bill processes ; nor his dis-
missal from that office for violating a rule of
the Assistant Barrister’s Court, under the be-
lief that it did not apply to him; nor his
having, on a particular occasion, acted as
bailiff in executing a fi. fa.; will disqualify
him from becoming apprentice to an attor-
ney: his character and conduct being in other
respects unimpeachable. The Court refused
to vacate the enrolment.—Jn re M‘Colgan,
61.E.R. 207. (R.E.)

8. An attorney’s apprentice had not at-
tended any Court in Dublin during any term
in the fifth year of his apprenticeship ; but,
after that year, his master being dead, at-

 

67

tended the Courts for two terms, without a
master. His application to be admitted was
refused.

Semble, indentures cannot be assigned after
five years from their date.

Semble, the sickness and accidents provided
for in 13 & 14 G. 8, c. 23, refer to the appren-
tice, not to the master. The terms attended
must be in the three years next preceding the

application for admission.—Ex p. Roberts, 8

I. E.R. 507. (E.E.)

9. A. kept five terms as a law student; served
two terms in a solicitor’s office before execu-
tion of his indentures, and eighteen after-
wards. Held, that he could not be admitted.
—In re Tierney, 10 1. E. R. 178. (E.E.)

10. C., agreeing to be bound to a solicitor in
Ireland, paid him the stamp duty, Queen’s-
Inns fees, &c., and his apprentice fee, and
made the usual affidavit before a Master,
under the impression that everything neces-
sary to constitute him an apprentice had been
performed. C. served five years. The soli-
citor did not pay the stamp duty, or prepare
any indentures of apprenticeship until after
the five years had expired. Held, that C.
might be admitted.

The Court, however, required the solicitor
to show cause why he should not be struck
off the roll—Jn re Power, 10 I. E. R. 175.
(E.E).

11. The Court has not discretion to dispense
with the provisions respecting the period of
a solicitor’s apprenticeship, except, perhaps,
in cases of fatality. Therefore, under the
1& 2 G4, c. 48, 8.4, the Court refused to
admit a graduate on a three years’ apprentice-
ship, commenced more than four years after
the apprentice had taken his degree.—Jn the
matter of A. B., 12 1. E. R. 237. (C.)

 

ARTICLES.

— Before Marriage. See SETTLEMENT ON
Marnriace, Uf.—Huszanp anp Wires, I.
— Of Partnership. See Partners, II.

 

ASSENT.

See ACQUIESCENCE.
— To Legacies. See Legacies.
— By Executors. See Executors, VII.

 

ASSETS.

— Administration of. See Exucutor, XI.

— Admission of. See ibid, X.

— Real and Personal. See ibid; Mortaacn,

I, 1X.

— Legal and Equitable.
— Following. See ibid.
— Of Partners. See Partners, IV.

— In Bankruptcy. See Bankruptcy, XI.

See Executor, X.
68 Generally.

— Effect of Execution of Power on. See Pow-
ER, I.

— Generally. See Executor, X.
— Marshalling. See ibid; Cuanrry, IT.

 

ASSIGNMENT.

— Of Petitioning Creditor’s Bond. See Banx-
RuUpPTCY, V.

— Of Bond generally. See Bon, VIII.

— Of Bond on Administration. See ADMINIS-
TRATION, I.

— Fraudulent. See Desps, V; DEpror anp
Crepiror, VI; FRauDULENT ASSIGNMENT.

— Of Wife's chose in action. See CHOSE IN AC-
TION ; HusBanp anv Wires, III.

— Of Dower. See Dower, I.

— Provisional. See Banxrurtcy, VI.

— In Bankruptcy, or of the Bankrupt’s Assets.
See Banxruptey, XI.

— Of Lease. See Lease, V.

— Of Mortgage. See Morteacr, VIII.

— Of Guardian. See Guarpian & Warp, II.

— Of Security. See Securrry, IV.

— Of Trusts. See Trust, XI.
— Restraint on. See Huspanp anp WIFE;
WiLL.

See ASSIGNOR AND ASSIGNEE; GUARDIAN
AND Warp, passin; Bankruptcy, V;
HusBanp anp WIFE, passim.

I. AssIGNMENT.

1. Generally ; and validity and effect of.

2. Notice of, when necessary; what notice
sufficient ; effect of.

8. Pendente lite.

II. Assicnor anp AssIGNEE; Ricuts, Pow-
ERS, AND LIABILITIES OF ASSIGNEE.

I. 1. Assignment generally ; its validity and effect.

1. J. bequeathed to his daughter D., wife of

C., £500, for her own sole and separate use,
and not to be in any manner subject or liable
to C.’s}debts, contracts, or engagements; the
interest to be paid to C. for life. J. charged
part.,of his realty with payment of that le-
gacy. C. and D., by deed executed jointly,
assigned to a purchaser for value their seve-
ral and respective interests in the £500, and the
interest payable thereon. The assignee filed
a bill to raise the charge. Held, that C. and
D. were competent to assign it validly, and
that D. had power, during C.’s life, to dispose
of her interest in the £500 so given to her
separate use.
p On payment of that sum, and the interest
due thereon, the lands were decreed to be
discharged from the bequest.—Keene v. John-
son, 11. E. R. 464; Jon. & C. 255. (E.E.)

2. Voluntary assignment of a chose in action
(a promissory note) by indenture, which also

[ASSIGNMENT]

 

Its effect.

appointed the assignee irrevocably the as-
signor’s attorney for recovering the amount
due on the note, will be carried into execu-
tion, because the transaction is complete by
execution of the deed.—Blakely v. Brady, 2 Dr.
& Wal. 311. (C.)

38. Parties claiming under a voluntary settle-
ment may file a bill in equity to obtain a
declaration of their rights as against the
settlor.— Gannon v. White, 2 I. E. R.207. (C.)

4, A father, entitled to a sum of money on
mortgage, covenanted, on his daughter’s mar-
riage, that a specific part of it should, within
three months after his death, be transferred
to the trustees of her settlement, and to pay
interest in the meantime. Held, that the
covenant amounted to an actual assignment.
—Brownlow v. The Earl of Meath, 2 I. E. R.
383. (C.)

5. In a suit to carry out the trusts of a will,
the receiver was ordered to pay H.,°a feme
coverte, and devisee of the real estates, £400
a-year, for her separate use and on her own
receipt, by way of maintenance.

By a subsequent deed, to which H. and her
husband were parties, the estates, subject to
charges, were conveyed in fee to such uses
as H. should appoint. In 1839, H., in consi-
deration of moneys then advanced to her,
mortgaged the estates to the plaintiff; and,
for the better securing payment of the inter-
est, assigned the allowance of £400 a-year
to a trustee, with a power to give receipts,
upon trust to pay thereout the interest to
the plaintiff, and the residue to the sepa-
rate use of H.

This deed was registered. The memorial
set forth the several denominations of lands
thereby conveyed, and stated that they were
subject to certain charges as the same, or the
interest of H., were rightfully subject to, un-
der indentures and arrangements in the
mortgage recited. The assignment of the
allowance was not mentioned.

In 1840, H., in consideration of moneys
then advanced, mortgaged the same estates
to the deft., and by a separate deed assigned
the allowance to a trustee, upon trust to pay
thereout the interest of the moneys then
advanced, and to pay the residue to H. These
deeds were duly registered. The defendant
had not, when he advanced the moneys, ac-
tual notice of the assignment of the allowance
to the plaintiff; but he had notice of the
plaintiff’s mortgage.

After execution of the defendant’s mort-
gage, and before payment of the moneys,
the defendant gave to the receiver notice
of the assignment of the allowance to him.
The plaintiff then gave notice of the assign-
ment to his trustee; and afterwards the
defendant obtained an order in the cause,
that the receiver should pay the allowance
to his trustee. Held, that the allowance of
£400 a-year was not w chose in action; that
it was a portion of the estate of H. in the
lands, and not an interest therein distinct
from the estate vested in her. That the
Its effect.

memorial of the first mortgage was a suffi-
cient memorial of the assignment of the £400
a-year to the trustee of the plt.—Rochard v.
Fulton, 1 Jon. & L. 413; 71. E. R.131. (C.)

1. Quere—Is a nun’s assignment of pro-
perty, made in pursuance of a vow taken on en-
tering the convent, valid ?—J/‘Carthy v. M‘C.
—Fulham vy. M‘Carthy, 91. E. R. 620. (C).—
[See 1 H. Lds. Cas. 703; 12 Jur. 757. ]

2. P. sold to the bankrupt several parcels of
whiskey in bond. Delivery orders were made
out by P. to his storekeeper, to deliver
the whiskey to H. or order. The payment
was by bills. H. indorsed some of the deli-
very orders to C. for value, before bank-
ruptcy, and C. presented them to the store-
keeper of H. Some formalities requiring to
be gone through at the custom-house, the
whiskey was not immediately delivered to C.
Nothing remained to be done by P. in order
to complete the sale. Under these circum-
stances P. claimed the whiskey as unpaid
vendor having a right of stoppage tn transitu.
C. claimed it as indorsee for value of the
delivery order. The assignees in bankruptcy
claimed it under the order and disposition
clause. Held, that the transitus was complete
on the receipt of the delivery order by H.,
and therefore no right of stoppage zn transitu
remained in P. |

That the whiskey was not in the order and
disposition of H., at the date of the bank-
ruptcy, and therefore the assignees had no
title.

That C. was entitled to the whiskey —Jn re
Hughes, 12 I. C. R. 450 and 463; 61. Jur. N.
S. 260, and 71. Jur. N. 8. 336. (B.)

3. P. on the 23rd May 1861, executed a trust
deed, for the benefit of all his creditors who
should sign the deed within three months.
The deed contained special provisions as to
the proving of debts by the creditors. A
creditor who had not signed the deed pre-
sented a petition against P. An adjudication
was obtained thereon after the three months.
Held, that the deed was, notwithstanding its
peculiar form, within the protection of sec.
93, and valid against the assignees in bank-
ruptey.—In re Phelan, 12 1. C. R. 467; 7 1
Jur. N. 8. 281. (B.)

4, When a policy of insurance is assigned to
a trustee, who, either by express terms or fair
construction, has a power to give receipts,
the company ought not to refuse payment to
the trustee.— Curtin v. Jellicoe, 13 I. C. R..180

(C.)

5. F., tenant of C. for a term of years, agreed
“to let unto G. the house and demesne of C.,
in as large and ample a manner as the same
is now held by F., at the rent of £48 per an-
num, for and during a term equal to the term
which F. has of the same; leaving him full
power of ejectment, and right of distraint in
case of non-payment of rent: G. to have a
power of surrender by giving six months’
notice in writing.” Held, an agreement for a

[ASSIGNMENT.] |

 

Notice of. 69

sub-lease, not an assignment.—Palmer v.
Spring, 141. C. R. 880. (C.)

6. A bank advanced money on shipments to
consignees, upon the faith of being paid out
of the proceeds of the consigned goods. The
bankrupt gave the bank an order on the con-
signees to pay the bank out of the proceeds.
Held, an equitable binding assignment of so
much of the fund as would pay the advances
made.

To constitute an equitable assignment there
must be an order to pay out of a certain
fund.

If A., one party to a contract, place on it a
certain construction which he communicates
to the other party, who does not reject it, but
suffers A. to act on it, he will not afterwards
be permitted to repudiate it—Jn re E. Thorn-
ton, 111. Jur. N. 8. 16. (B.)—[Revd. :—11 I.
Jur. N. 8. 62. (C. A.)]

 

I. 2. Notice of; when necessary; what Notice
Suffices ; Effect of.

7. Under the 9 G. 2, v. 5 (Ir), payment by
the conusor of a judgment to the conusee,
without notice of the assignment of the judg-
ment, is to be deemed payment to the assignee
thereof. The registration of the assignment
under that statute does not operate as notice
to the conusor. The situation of a conusor,
under this statute, resembles that of a mort-
gagor under the English statute 32 7.3, c. 34.
—Ferrall v. Boyle, 1 I. E. R. 391. (C.)—[Affd.
12 Cl. & F. 740.) ‘

8. H., a trader, and local agent of an In-
surance Co., of which the head office was in
Dublin, effected with it, upon his own life, two
policies, which he assigned to a banking firm,
whose debtor he was. At the respective times
of the assignments a formal notice thereof
was given him, as agent of the Co. H., be-
coming bankrupt, died. Held, that, as between
H.’s assignee in bankruptcy and the banking
firm, the notice was insufficient: the transac-
tion being taken to have happened in Dublin,
there not being on the face of the policies
anything showing that they had been effected
where H. had been agent.

When the assignor of a policy is agent to
the Co. with which it has been effected, notice
to him of the assignment will be insufficient.
—In re Hennessy, 2 Dr. & War. 555; 1 Con. &
L. 559; 51. E.R. 259. (C.)

9. Actual notice of the memorial of a deed,
which, from the memorial, appeared to be
conversant with all the estate of the grantor
in the lands, is such notice of an assignment
of a partial interest of the grantor in the
same lands, made in trust for the same gran-
tor, by the same deed, but not mentioned in
the memorial, as will avoid the effect of sub-
sequently registered assignment of the partial
interest—Jochard v. Fulton, 1 Jon. & L. 413;
71.E.R. 181. (C.)

10. The rule requiring notice of an assign-
ment of a chose in action does not apply when
70

there is not any question between successive
claimants under the assignor; and, as between
them, the personal representative is the pro-
per party to have notice of the assignment of
a legacy, though payable out of a debt to the
estate —Molloy v. French, 13 I. E. R. 261. (C.)

1. A. by deed assigned, for a nominal con-
sideration, a policy on his life, to trustees for
his children, B. and C.; no notice of this was
given to the Assurance Company. B. assigned
a moiety of the policy, for value. A. after-
wards assigned the residue of the policy to
X., without value. C. refused to join in the as-
signment, but did not claim the policy during
B.’s life. X. gave notice to the Co. of the
assignment to him, and paid the premiums
‘during B.’s life. Held, that X. could not en-
force his claim on the policy.

Semble, the rule giving priority to the as-
signee of a chose in action, who first gives to
the debtor notice of his claim applies between
volunteers as well as between assignees for
value.—Justice v. Wynne, 10 I. C. R. 489. (C.)
[Reversed, 12 I. C. R. 289; 6 I. Jur. N.S.
51. (C.A.)]

 

I. 3. Pendente Lite.

 

Il. Assicnor anp AssIGNEE: ASSIGNEES’
Ricurts, Powrrs, anp LiaBILities.

2. This Court will interfere by injunction
to protect the copyright of the assignee of
the author, though there was not any written
assignment when the piracy was committed,
and the assignee had a merely equitable title.
The Court will disregard the author’s permis-
sion to infringe the copyright, if given after
the equitable title had been parted with for
value, and a statement had appeared on the
title-page of his work—that it was printed for
the equitable assignee.—Hodges v. Welsh, 2
I. E. R. 266. (R.)

3. A., entitled to one moiety of a testator’s
property, assigned it. Held, that the assignee
was entitled to institute a suit against the
executor, for an account of what had been
lost by his wilful default, and that such a suit
would not be open to the objection of cham-
perty.— Scully v. Delany, 21. E. R. 879. (C.)

4, In 1799, D., tenant for life, executed a
trust deed to pay himself an annuity of
£10,000, and the rest to his creditors. In
1836, a supplemental bill was filed on behalf
of the creditors against D.; against an as-
signee of 1822; and against an elegit creditor,
whose elegit issued in 1835, for an account of
the rents received since 1803 by D. over his
annuity, and to have payment of the annuity
suspended until the amount found due on
taking such account should be paid off. Held,
that the equity arising from D.’s breach of
covenant could not affect his assignee, a pur-
chaser for value without notice ; or the rights
of an elegit creditor who had extended the
annuity to pay his demand, before any step
was taken to enforce the equity.

 

[ASSIGNOR AND ASSIGNEE.]

As to D., the billwas dismissed without
costs, and without prejudice to 'ptf.’s proceed-
ing in the original cause—Houlditch v. Done-
gu, 1 Dr & Wal. 503. (C). :

5. Semble, that the assignee of a judgment,
assigned within a year after its revival, may,
within the year, sue out execution upon it,
without reviving it in his own name.—Fitz-
gerald v. Dalton, 4 I. E. R. 697; Long.& T.
662. (E.E.)

6. An assignment of their distributive
shares of their father’s assets was obtained
from two nuns, in trust for a convent. Decla-
rations of the assignors, showing that they
executed the deeds against their will, and
under the influence and spiritual terror of
their vows, were proved. The deeds contained
a power to put in an answer for them. The
assignees filed a bill to recover the shares,
One nun was made ptf., the other was made
deft. In that suit neither of them objected to
the deeds; but the same declarations proved
that it was without their concurrence, and the
other deft. objected that the deeds had been
extorted. Ptfs. declining an issue to try
whether the deeds were freely executed, the
bill was dismissed with costs.

Quere, Can nuns, who have vowed poverty
and obedience, acquire property ?—JL‘Carthy
v. M‘C, 9 I. E. R. 620. (C.)—[Dismissal
affd. on ground of misjoinder of co.-ptfs.—
Fulham v. M* Carthy, 1 H. of Lds. Cas. 703; 12
Jur. 757.]

7. The assignee of a chose in action takes
it subject only to existing equities, and not to
collateral rights arising from events subse-
quent to the assignment. X., a legatee, as-
signed his legacy payable out of a charge on
A.’s estate. The executor having died, X.
obtained administration to the testator; and,
as such administrator, received payments
from A., whereby the estate became deficient
to pay other legatees. Held, that X.’s assignee
was not liable to bear the entire loss—Molloy
v. French, 131. E. R. 261. (C.)

8. A society, for the purpose of granting
annuities and other benefits to the widows of
members, enrolled rules, pursuant to the
Friendly Societies Acts. One rule provided
that all payments to be made to the widow of
a member should be paid to herself only, or
to her order, and to no other person. Another
rule provided that all matters in dispute
between the society and any individual mem-
ber, or any person claiming on account of
any annuitant, should be referred to arbitra-
tion. The Society was afterwards incorpora-
ted by a Private Act, which gave the Society
power to make bye-laws so far as applicable.
The Society adopted the former rules as bye-
laws. The widow of a member became entitled
to an annuity, and subsequently took the
benefit of the Insolvent Debtors Act. On
cause petition by her assignee against the So-
ciety: Held, that the restriction on alienation
was inoperative. That the provisions of the
Friendly Societies Acts had ceased to apply to
[ASSIGNOR.—ATTORNEY-GENERAL.]

the Society, and that the jurisdiction of the
Court was not ousted by the arbitration clause.
—Irvine v. Presbyterian Widows’ Fund Associa-
tion, 51. C. R. 1; 11. Jur. N.S. 88. (C).

1. B., by deed executed in 1828, for a nomi-
nal consideration, assigned a policy of insu-
rance upon his own life, to trustees for his
children, of whom the petitioner was one.
The entire interest in the policy became
vested in §. and the petitioner. No notice of
this deed was ever given to the Insurance
Co. S. married the respondent; and by deed,
reciting that she was entitled to one moiety
of the policy, that moiety was then put in set-
tlement. B., afterwards, by deed, made with-
out consideration, professed to assign the re-
sidue of the policy to the respondent, and
stated that he had led the petitioner to believe
that he would be entitled to £100 out of the
proceeds, and that the petioner ought to be
made one of the granting parties. The peti-
tioner declined to execute the deed; but did
not allege, during the whole life of B., that
he had any claim on the produce of the policy ;
and the assignment to the respondent was
executed by B. The respondent gave the Co.
notice of the assignment, and paid the pre-
miums during B.’s life; and was not proved
to have had any knowledge of the petitioner’s
rights. Held, that the petitioner was preclu-
ded, by his own conduct, from enforcing his
claim upon the produce of the policy.

Semble, that the rule giving priority to the
assignee of a chose in action, who first gives to
the debtor notice of his claim, applies between
volunteers as well as between assignees for
value.—Justice v. Wynne, 10, I. C. R. 489.
(C.}—[Revd. 121. C. R. 289; 61. Jur. N.S.
51. (C.A.)]

 

ASSIGNEES IN BANKRUPTCY.

See Bankrurtcy, X.
— Election by; to take or to reject Lease.
BangRvrtcy, XI.

See

 

ASSURANCE.
See INSURANCE.

 

ATTACHMENT.
See Practice, ATTACHMENT, passim—Prac-
TIcL, Process. ~

— Against Property. See Practice—ATTACcH-
MENT AGAINST Property.

 

ATTAINDER.

See ForFEITURE.
— Plea of. See Practice—Pira. See also
StaTutE—ConstRuction of, II.

 

ATTENDANT TERMS.
See Terms, I.

 

71
ATTESTATION.

— Of Bankruptcy Petitions. See BANKRUPTCY,
XVII.

 

ATTESTING

See Practice, EvipENCE.
See PracticE, Pura.
See Wit, VI.

— Witness.
— Of Plea.
— Will.

 

ATTORNEY.

See Soricitor, Fraup.
— Power of. See Powsr, X.

 

ATTORNEY-GENERAL.

See Cuanity, IV.

— When to be made a party. See Purapinc—
PaRrtizs.

— Answer of. See Pruapine, ANSWER.

— Costs of. See Practicz, Costs.

2. The Attorney-General sufficiently repre-
sents the personal estate of an intestate
bastard without taking out letters of admi-
nistration thereof—M‘Kiernan v. Kernan,
FL. & K. 352; 41. E. R. 269. (R.)

3. In incumbrancers’ suits, the Attorney-
General, made a party in respect of a recog-
nizance, sufficiently represents the parties
interested in it for all purposes, and it should
be reported an incumbrance, though the con-
dition be not broken.—Delany v. Firman, 12 I.
E. R. 304. (C.)

4. The Attorney-General, made a party in
respect of a recognizance or otherwise, can-
not be made a notice party, but must be
required ‘to answer.—Fawcett v. Biggs, 12 I.
E. R. 805. (C.)

5. The Attorney-General is not a necessary
party to a suit on behalf of a person of weak
mind, but not found lunatic by commission.
Carr v. Osborne, 1 I. Jur. 2. .

6. The Attorney-General should be fully ap-
prised of all the proceedings relating to
charities. Pleadings and briefs must be sent
& - counsel.— Potts v. Turnly, 1 I. Jur. 57.

7. An information relating to a Presbyte-
rian charitable fund, was set down in the list
of causes for hearing in T. Term. Several
scarce books, throwing light upon the mode
in which the fund was to be applied, and ad-
missible in evidence, were not forthcoming.
An application by the Attorney-General to
postpone hearing until M. Term, to allow
time to have the books searched for, was
granted, he having ex officio full control over
the cause, and no injustice being likely to
arise from the postponement.—A ttorney- Glene-
ral v. Carlile, 21. Jur. 249, (C.)

8. The Crown, though not bound by the 3
& 4 W. 4, c. 55, s, 31, and3 & 4 Vic., c. 105, s.
20, which give to creditors by judgment or
recognizance a right to have a receiver ap-
72

pointed on petition, may take advantage of
the Acts; but is bound by the restrictions
imposed on that right by the 12 & 13 Vic., v.
95, s. 10.

A judgment in scz. fa. on a recognizance
being merely an award of execution, a re-
ceiver may be appointed on a recognizance
(notwithstanding the 12 & 13 Vic. c. 95, s.
10), if it was enrolled more than a year be-
fore the petition is presented, though the
judgment was entered within the year.

Petitions for receivers on tenants’ and re-

ceivers’ recognizances should be entitled in |~

the name of the Queen. The Attorney-Gene-
ral should be the petitioner.—The Queen y.
Cruise, 21. C. R. 65. (R.)

1. An executor lodged in Court under the
Trustee Relief Act, the amount of a charita-
ble legacy, and presented « petition praying
for a reference to obtain the Master’s ap-
proval of a scheme. Held, that the petition
ought to be entitled under the 52 G. 3. ¢.
101; and ought to be sent to the Attorney-
General.—Zn re the Trusts of Kelly’s Will, 7 I.
Jur. N.S. 273. (R.)

2. If any corporate or other body usurps
the power of granting degrees, without ex-
press authority, proceedings are properly
taken in the Attorney-General’s name.— The
Attorney-General v. The K. § Q. Coll. of Phys.
in Ireland, 9 I. Jur. N.S. 362. (C.)

 

ATTORNMENT.

See LanpLorp anv Tenant, VI.

 

AUCTION AND AUCTIONEERS.

See AGREEMENT, VIII.—Venpor anp Pur-
CHASER.

 

AUDIT.

See BANKRUPTCY.

 

AUDITA QUERELA.

 

AUGMENTATION.

See ACCRETION.
—Of Charity. See Cuariry, II.

 

AUXILIARY FIAT.

See Bankruptcy, VI.

 

AWARD.
See ARBITRATION AND AWARD.

Plea of. See Practicr, Pea.

 

 

[ATTORNEY-GENERAL.—BANKS, & ]

BAIL.

See PracticE, Batu.

 

BAILEE—BAILMENT AND PAWN.

 

BANK OF IRELAND.

See PLEapInc—Parties—PRracticp, Costs—
SratuTE, Construction or, II.

 

The statutes relating to the Bank of Ire-
land, and Banks generally, are, 29 G. 2, v. 16;
33 G.2,¢14; 40 G. 8, c. 22; 55 G. 3, c. 100;
6 G. 4, ¢. 42;9 G 4, v. 80; 1 W. 4, ¢. 32;
1&2 Vic, ¢. 96.

3. The Governor and Company of the Bank
of Ireland may be petitioning creditors, and
issue a commission of bankruptey—Zn re
Beale, 2 Dr. & War. 375. (C).

4, A bonus, declared by the Bank of Ireland
on their stock, in addition to the annual divi-
dend, is not in the nature of annual profits,
but is an accretion of the capital. The inter-
est only on such bonus belongs to the tenant
for life of settled stock—Lzx parte Hodgens,
11L E. R.99. (C).—See French v. Craig, 8 I.
C. R. 142. (R.)

 

BANK—BANKERS, AND BANKING
COMPANIES.

See BANKRUPTCY, X, 3, b.; ibid, X, 4—InvEst-
MENT — Account — PARTNERSHIP — Sta-
TUTE, CONSTRUCTION OF, II—FRIENDLY
Societies and Savines Banks.

Bonuses declared by. See ACCRETION AND Bo-

NUS.

 

5. The Bankers’ Act (33 G. 2, c. 14) is not
repealed by the 6 G. 4, c. 42. Therefore,
when a joint-stock banking company, formed
under the latter statute, stops payment, a
trust is created in favour of the creditors,
affecting all the property of the shareholders,
under the Bankers’ Act, which may be admi-
nistered by this Court, at the suit of any
creditor against the public officer of the com-
pany, instituted without making the other
creditors or the shareholders parties. The
bill stated that the co-partnership assets were
sufficient to discharge the liabilities of the
company, and it not appearing that the share-
holders have any other liabilities than those
of their co-partnership.—Fawcett_v. Hodges,
31. E.R. 232; 1 FL & K.100. (R).—[Over-
ruled: O’Flaherty v. M‘Dowell, 2 J. Jur. N.S.
469. (H.L.) 6 H. Lds. Cas. 142.]

6. Upon a creditor’s bill, founded on the
equity of 83 G. 2 (Bankers’ Act), against the
public officer of a joint-stock banking com-
pany, consisting of a very large number of
persons, incorporated and registered pursuant
[BANK, &c.—BANKRUPTCY.] 73

to the provisions of 6 G. 4, ¢. 42, the bank
having stopped payment, an injunction to
restrain the directors, &c., from interfering,
was granted, and a receiver to collect the
joint property, &c., appointed before answer;
the defendant having made an affidavit to
resist the motion, and going into the merits
of the case. Form of the order; authority
and duties of the receiver; his recognizance ;
sureties, and remuneration.

The 33G. 2, c. 14, applies to joint-stock
banking companies registered under 6 G. 4,
c. 42.—Acheson v. Hodges, 3 I. E. R. 516, 518,
521. (R.)

1. A depositor in a savings bank cannot
maintain a suit in a Court of Equity against
the trustees; since the 9 G. 4, c. 92, s. 45, has
established arbitration as the only mode of
proceeding in. disputes between depositors and
the institution.

But for that statute, an action at Law, and
not a suit in Equity, would be the proper
remedy.— Cooke v. Courtown, 6 I. E. R. 266.
(R.)

2. A., a shareholder in the A. and C. Bank,
of Ireland, sold, in 1837, his shares to the
company, who paid him therefor, and entered
the sale in their books. The printed deed of
transfer required by law was filled up and
executed by the plaintiff, but not by any trus-
tee of the bank. No memorial of transfer
was executed. In the register, filed in Nov.
1837, A.’s name appeared as having ceased to
be a partner. His name was omitted in the
annual register of shareholders, filed in the
years 1838, ’39, ’40, 41, and 742. In 1843, A.’s
name was again placed on the register of
shareholders, pursuant, as he alleged, to a
fraudulent arrangement between the bank
and B., a creditor on foot of debentures issued
after 1837, in order to make A. liable. B.,
having obtained judgment against the bank
on a plea of confession in an action on the
debentures, sued out sci. fa. thereon against
A., as a shareholder. A perpetual injunction
was granted to restrain B. from proceeding
at law against A. upon the sci. fa., and to
restrain the bank from placing A.’s name on
the next annual register.

The Banking Act, 6 G. 4, c. 42, does not
prevent a company from buying up the shares
of an individual member; and although they
dispense with the form of transfer directed
by the Act, the sale will be binding as be-
tween them and the vendor.— Taylor v. Hughes,
71. E.R. 529; 2 Jon. & L. 24. (C.)

3. A., a stockbroker and notary public,
largely engaged in trade, received money from
customers ; paid it out upon their drafts; and
occasionally discounted bills; but neither
held himself out to the public as a banker,
nor appeared to be considered one by them.
The entries in his books of banking transac-
tions were mixed up with those appertaining
to his callings as a stockbroker and trader.
Held, that he was not a banker within the
33 G. 2, v. 14, and that a mortgage executed
by him was not void as against his creditors,.

 

by reason of its not having been registered
pursuant to the provisions of that statute.

Quere—Whether the statute applies to
bankers who do not issue notes ?—Stafford v.
Henry, 121. E. R. 400. (E.E.)

4. Pending a petition for, but before the
allowance by the Lord Chancellor of a cer-
tificate under the Bankers Acts (33 G. 2,
c. 14, and 40 G. 3, ¢. 22, Zr.), a banker, not
being entitled to be discharged from arrest at
law, cannot obtain an injunction to restrain
a creditor from issuing execution against
him..

But a creditor who had appeared at the
hearing of the petition, and opposed the
allowance of the certificate, and had filed a
discharge under the order of reference, and
had thus made himself a party to the pro-
ceeding, was enjoined from issuing execu-
tion.— Guinness v. Fitzsimon, 18 I. E. R. 189.

&.)

5. Semble—The re-issue by a bank, according
to its practice, of new deposit receipts, when-
ever interest is drawn, does not amount to a
new investment.—Foz v. /, 15 I. C. R. 90.
(C.A.)

 

BANKRUPT.
See Bankruptcy, VIII—Pizapine, Parties.

Office. Sce Sratute.

Petitions. See Bankruptcy, VI., XVI, XVII.

Trustee. See Truster, VII.

Bankrupt’s Assignee. See BANKRUPTCY.

Allowance and Maintenance. See BANKRUPTCY,
VUI, 1—X, 8.

Costs in Suits in Equity. See Practice, Costs.

 

BANKRUPTCY.

See Preapine, Parties, 5—Practicr, Costs,
10—Principat anp AGENT, V—Princi-
PAL AND Surety, []—Srrriement, [V—
STATUTE, CONSTRUCTION OF, II, 7.

I. Errect or.

. With respect to the Crown, Extents, §c.
When Suits are abated thereby.

- On Powers—Interests in Property—
Forfeitures.

. Generally.

e whe

II. TrRaDER AND TRADING.

1. Who are Traders.
2. What amounts to a Trading.

II. Act or Banxrurtcy—Traper Desror
Summons.

1. What constitutes one.
a. Generally,
10
74

2.

[BANKRUPTCY.]

b. By Persons with Privilege of Parlia-
ment.

c. Within the 20 & 21 Vic., c. 60.

Effect and Nature of.

IV. Crepitors GENERALLY—TuEIR Ricats,

Dotiss, anv LiaBiuitizs.

V. Petitionine CREDITOR.

. Who may be.
. His Rights, Duties, and Liabilities.

a. In general.
b. Respecting opening the Fiat.
c. Respecting Costs.

. Effect of his Compounding with the Bank-

krupt.

. His Bond and its Assignment.
. Petitioning Creditor’s Debt.

a. Amount, Nature, and Proof of.
b. Substitution of.
c. Evidence of. See infra, VI.

VI. Commission, Frat, orn ARRANGEMENT.

1,
2.
3.

SUMYQRaL

a

Miscellaneous: Relation of this Process
to others.

Docket—which of two Dockets will be
preferred.

Issuing Commission—To whom issued in
Cases of Competition.

a. In general.

b. Under the 1 & 2 Vie., c. 110.

v. Direction and Removal of Fiat—

Change of Venue.

. Description of Bankrupt.
. Sealing and Re-sealing Commission.
. Amendment of Commission.

Country Commission.

. Second or Third Commission.
. Auxiliary and Renewed Commission.
. Concerted Commission.

VI. Surersepine or ANNULLING ComMMISSION
or ARRANGEMENTS.

12.
13.

14.

a. Generally—Nature and Effect of.

b. When and in what cases.

c. Who may supersede.

d. On Consent and by Arrangement.

e. Petition to supersede—Practice on it.

Writ of Precedendo.

Commissions against Partners.

a. Joint or Separate Commissions—Ge-
nerally,

b. Rights under—Execution of—Gene-
rally.

Opening.

a. Time for Prosecution of.

b. Adjudication,

ce. Evidence of Trading—Act of Bank-
ruptcy—Petitioning Creditor’s Debt.

d. Advertisement in Giazette.

e. Messenger.

f. Provisional Assignment.

 

VII. Commissioners.

1. Who may, and ought to be—Appointment

and Remuneration of.

2. Powers, Rights, §c.
2.* Certificate of Commissioners.
3. Witnesses.

1.

2.
3.
4,

a. Attendance of Witnesses.
b. Privilege from Arrest.
ce. Examination and Committal of.

VIO. Bankrupt.

His Rights. Duties, and Liabilities.

a. Discharge from Execution ; Letters of
License.

b. Allowance and Maintenance.

ce. His Privilege from Arrest.

d. In other Cases— Generally.

Examination of.

Committal and Warrant of.

Surrender.

IX. SurPius, GENERALLY—WHEN INTEREST

Is PayABLE on.

TX.* Orricra, ASSIGNEES.
X. AssIGNEEs.

1.

Choice of ; Removal of.

2. Conveyance to.
3. Powers, Duties, Liabilities, §c.

CU

a. Their Custody, &c., of Proceedings.

b. Appointment of Receiver by, §c.

c. Assignees’ general Rights and Powers.

d. Assignees’ Personal Rights and Powers.

. Assignees’ general Liabilities.

Assignees’ personal Liabilities.

g. Liability of for acts of Co-assignee.

h. Assignees’ Accounts.

i. When Court will interfere with Assig-
nees’ private arrangements respect-
ing the disposition of the estate, or
will control their discretionary power.

j. Leave to Assignees—Of purchases by
them of the bankrupt’s estate.

k. When the Assignee is also Mortgagee.

1, When the Assignees are entitled to an
indemnity.

m. Twenty per cent. clause—Assignees’
liability for interest in cases before
the 49°G. 3, c. 121

ho

. Investment generally.
. Solicitor to Commission.

a. In general—His rights, duties, powers
and liabilities.
b. Mis bill of costs—T axation of, &e.

. Sale of property and effects of.

a. In general—Respecting opening bid-
dings.

b. Mode of—Respecting reservedbiddings.

c. Respecting mortgages, §c.

. Removal of Assignees.
. Absconding, retiring, or becoming Bank-

rupt, of Assignees.

. Actions and suits by and against Assignees.

a, Evidence thereon,
b. Generally.
[BANKRUPTCY.]

XI. AssiIGNMENT—WHAT IT PASSES.

. Generally— What passes.

. Property acquired after commission issued,

but before certificate granted.

Stock.

. Leases, Agreements, §c.—Assignees’ elec-

tion to take.

. Short and Cross Bills of Exchange.

. Propertypreviously assigned fraudulently—
How far such conveyances affect cre-
ditors’ rights.

. Reputed Ownership— Order and Disposi-
tion.

8. Wife's property.
a. Wipes Equity.
b. Provision for Wife.

XII. Securrrizs anp Liens.

1. General doctrines.
2. Equitable Mortgages: See supra, X. 6.

XIII. Proor.

. Generally, and in cases not specified—
Objections to.
Claims.
. Mode of Proof, sc.
. By Holders of Securities.
. Between Principal and Surety.
. Partnership.
a. Joint and separate Debt, what is.
b. Between Partners or Estates.
c. Joint Debts under separate Commis-
sions ; et e contra.
d. Election on joint or separate Estate.
7. Of Annuities, §c.
8. Of Marriage Settlement.
9. Of Interest.
10. Of Damages and Costs.
ll. Of Debts accruing after Bankruptcy.
12. Of future and contingent Debts § Interest.
13. Expunging.
14. Llection-at Law, or under Commission.
XIV. Ser-orr.
XV. Divipenp.

1. Generally.
2. Payment and Recovery of, &c.
3. Unclaimed Dividends, and Interest on them.

XVI. Certiricats.

1. Its effect—LEffect of its absence.
2. Signature and Allowance of.
3. Staying, Recalling, &c.
a. For what, and for whom.
b. Petition to stay—Practice on.
1. Generally.
2. Service of, §c.
3. Affidavits in support of.

XVII. Bankrupt Peritions In GENERAL.

. Petitions generally.

. Signature and Attestation of.

. Service of Petition—Proof of Service.

Affidavits and Evidence on.

Amendment.

Costs of.

. Practice on Petition in Court.

. Practice on Petition generally.

. Setting down, hearing, advancing, and
adjourning Petitions—Of preliminary
Objections. ;

Frame of Petitions—Form of Order on.

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Pome to

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75

11. When proper to be adopted—What effected
b

y as
12. Re-hearing Petitions.
XVII. Mortons, wHEN Prove, &c.
XIX. GENERAL JURISDICTION.

1. Since 1 & 2 W. 4, ¢. 56.
a. Lord Chancellor.
b. Court of Review.

XX. Suppivision Courts AND COMMISSIONERS.
XXI. Reeistrar, Rererence To ; Report, &c.
XXII. Appgar anp SpeciaL Case.

 

Sratures :—“ The Irish Bankrupt and In-
solvent Act, 1857” (20 & 21 Vic. c. 60.)
Schedule A. to that Act refers to the previous
Acts on the subject.

 

1, Errect or BANKRUPTCY.

1, With respect to the Crown, Extents, §c.

2. When suits are abated thereby.

3. On Powers: Interests in property: For-
feitures.

4, Generally.

 

I. 1, With respect to the Crown, Extents, &c.

 

I. 2. Where Suits are abated thereby.

1, After a judgment debtor has become
bankrupt, a receiver cannot be appointed on
petition of the judgment creditor, though
cause is shown only by a puisne mortgagee in
possession.—Ryan v. Lefroy, 3 1. C. R. 351. (C.)

 

I. 3. On Powers, Interests in Property,
For feitures.

2. The property vests in the assignee, by
the 3 & 4 Vic., c. 107, s. 20, upon the making,
not on the entering of record, the vesting order.

A statement in a plea that the plaintiff's
claim, if any, is vested in his assignee, will
not vitiate.

Semble—Such plea need not negative the
exceptions in the 8 & 4 Vic., ce. 107, s. 20.—
Irwin vy. £8 I. E.R. 9. (R.)

8. The conveyance under the former Eng-
lish Insolvent Acts to the Provisional Assignee
is within the General Registry Act; nor is the
registration of it dispensed with by the regis-
tration of the conveyance by the Provisional
to Creditors’ Assignee.—Battersby v. Rochfort,
8 J. E.R. 284. (C.)—[Reversed upon re-argu-
ment; 9 I.E. R.191; 2Jon.&L. 481. (C.)
Rochfort’s appeal dismissed for incompetency ;
2 H. Lads. Cas. 388.]

4, When a judgment is a bona fide charge
upon lands within the J. E. Act, and a peti-
tion has been presented on foot thereof, the
Commissioners have jurisdiction to order a
sale, notwithstanding that a bankruptcy or
other circumstance has intervened, which
would have annihilated or levelled the charge,
76 Its effect.

had it occurred before the presentation of the
petition.

Semble—Once the Commissioners have put
their powers in motion, they are bound to
proceed, notwithstanding such occurrences.

Semble—Though a judgment remains after a
bankruptcy in some senses, yet the money due
on foot thereof is not “money secured by
judgment” within the I. E. Act. A petition
presented, even by the assignee of the bank-
rupt, will be dismissed. =

When, after the presentation of a petition,
a bankruptcy occurs, it is a matter altogether
of discretion with the Court whether they will
permit the proceedings for a sale to continue
in their Court, or in the Bankruptcy Court.—
In re Lawder, 3 I. Jur. 885. (1. E. C.)

1. A trader, possessed of a chattel real,
acknowledged a judgment. Subsequently to
its rendition the chattel real was sold under
a fi. fa. upon a puisne judgment. The trader
was afterwards declared a bankrupt. Held,
that the first judgment was not levelled by
the bankruptcy, and that its amount might
be raised out of the chattel real in the hands
of the purchaser, who had notice.— Willock v.
Dargan, 11. C. R. 39. (C.)

2. Shares in a Railway Co. stood in the
name of a bankrupt at the time of his bank-
ruptcy, on the 13th Nov. 1847. A large sum
was then due on the shares for calls. The Co.
proved for it in the bankruptcy in July 1849,
and received a dividend, the assignees not
requiring the shares to be brought in, and the
secretary of the Co. expressly stating that
they had no security for the calls. Subse-
quent calls were made, the shares still remain-
ing in the bankrupt’s name. In’ July 1852,
the Co. served a notice on the bankrupt, that
the shares would be forfeited. The shares
were declared forfeited at a meeting of the
directors. In May 1853, the assignees ten-
dered the amount of the calls which fell due
after the fiat. He/d, on a petition filed by the
assignees against the Co., that the assignees
might, when the Co. proved for the calls, have
had the transmission of the shares authenti-
cated to them under the 8 Vic., c. 16, s. 18
(Companies Cl. Cons. Act, 1845), and have had
them sold for the benefit of the bankrupt’s
estate.

But that the assignees not having then
accepted the shares, they continued the pro-
perty of the bankrupt, and had been forfeited
for non-payment of the calls.

Semble—The proof under the bankruptcy
was not equivalent to payment of the calls,
so as to satisfy the provisions of the statute,
which makes the payment of the calls a con-
dition precedent to the right to transfer the
shares.— Turner v. D. § B. Junc. Ry. Co., 3 I.
C. R. 526; 61. Jur. 225. (C.)

3. The jurisdiction of the Court to adminis-
ter assets acquired after the discharge of a
deceased insolvent is not taken away by the
Insolvent Act, 3&4 Vic.,c.107. Therefore,
a suit for the administration of such assets
may be maintained by a schedule creditor of

[BANKRUPTCY.]

 

Generally.

the insolvent, or by his personal representa-
tive.—[ Thomas v. ‘Pinnell | (15 Beav. 148) and
In re Moylan (16 Beav. 220) disapproved of.]
Dunlevie v. Hort—6 I. C. R. 82; 21. Jur. N.S.
194. (R.)—[Revd.6 1. C. R. 99; 21. Jur. N.S.
293. (C. A.) J

4, In a bankruptcy of long standing (com-
mission dated 1814) a portion of the estate
was unexpectedly realized in the I. E. Court
in 1853. Dividends were struck on the sepa-
rate estates of three of the partners of the
bankrupt firm on the 30th of October, 1855.
A number of the creditors did not appear to
claim their dividends. In 1859 an application
was made on the part of a creditor who had
appeared, for a re-distribution of the un-
claimed dividends. Held, that since the
repeal of the 6 W. 4, c. 16, by the 20 & 21
Vic., c. 60, the Court has not jurisdiction to
order such re-distribution. The right to such
dividends remains in the non-claiming credi-
tors, or their representatives. The present
Act does not provide for the disposal of such
unclaimed dividends. The principle that non-
claimer for three years affords a reasonable
presumption that the debts have been satis-
fied has no application in an old bankruptcy.
In such a case, the Court, if it had jurisdic-
tion to order a re-distribution, would not
exercise it.—Jn re French, 91. C. R.1. (B.)

 

I. 4. Generally.

5. A trader, having confessed a judgment,
mortgaged lands affected by it, and became
bankrupt. Held, that the judgment creditor
had not alien upon the lands, but that his
judgment was levelled by the bankruptcy.—
White v. Baylor, 5 I. E.R. 400; 4 Dr. & War.
297. (C.)

6. A puisne mortgagee’s right to compel
the prior mortgagee to exhaust, before touch-
ing the common fund which is deficient, a
second fund to which the prior mortgagee may
resort, exists when the mortgagor has become
bankrupt.—in re Cornwall, 6 I. EK. R. 65; 3
Dr. & War. 173; 2 Con. & L. 131. (C.)

7. That a purchaser would be bound by a
judgment entered up against the vendor,
although the vendor becomes bankrupt after
execution of the conveyance, admits not of
any doubt.—Baldwin v. Belcher, 6 I. E. R.
424; 1 Jon. &L. 18. (C.)

8. On the 19th April, 1864, the Court of B.
and I. granted protection from process to the
person and property of K., a trader unable to
fulfil his engagements with his creditors. On
the 21st April, that order being still in force,
and K.’s property being in possession of the
Off. Ass., R., a creditor, who had full notice of
the previous proceedings, entered judgment
against K. in an action commenced before the
19th April. On the 23rd April, R. registered
that judgment asa mortgage. On the 14th
June K.’s proposed composition was accepted
by his creditors and approved by the Judge.
On the 11th Oct., the arrangement proceed-
ings not having been finally completed, R.
Trader, &c.

petitioned the L. E. C. to sell the lands men-
tioned in the judgment mortgage. The con-
ditional order to sell was made absolute in
Jan, 1865. Held, that, since the estate was
in the Off. Assignee’s possession, and under the
protection of the Court of B. & IL, at the time
when the judgment was registered as a mort-
gage, it was premature to make absolute the
order for sale, while the arrangement proceed-
ings were still pending.

That absolute order was therefore set aside,
without prejudice to R.’s right to renew his
application to the L. E. Court to make abso-
lute the conditional order; and R. was at
liberty to apply, so soon as the Court of B. &
I. should have determined K.’s application for
a certificate—In re Kennedy’s Estate, 171. C.
R. 104. (C.A.)

 

II. Traper anp TRADING.

1. Who are Traders.
2. What Amounts to a Trading.

Il. 1. Who are Traders.

1. On the trial of issues directed to ascer-
tain whether a deed was void as being con-
trary to the 6 W. 4, c. 14, s. 8, there were two
issues—insolvency, and whether the party
was a trader within the bankrupt laws? The
debtor, who executed a settlement, by which
he opened his entailed estate and re-settled
it upon himself for life, remainder to his son
in tail, was a country gentleman who bought
grain; ground it, and sold the flour at his
mill; and was considerably indebted to vari-
ous persons by bond, judgment, and simple
contract debts. The learned Judge in his
charge told the jury upon the question of
trading that if the debtor used the mill for
the convenience of his tenants, or persons
bound to the mill, he was not a trader; but
if for the purposes of profit, he was; and
upon the question of insolvency, that the
jury were to consider the two-fold character
of the debtor—as a trader, if he was one, and
also a country gentleman of considerable
property; that what would be insolvency,
from want of punctuality in meeting his en-
gagements, in a person merely a trader,
would not‘be so in a country gentleman; and
that they were to have regard to both capa-
cities, and to the nature of his debts; that if
not a trader, debts might exist exceeding his
ready money, and yet he would not be insol-
vent, having property which would pay in
time; and the jury were to consider the
credit arising from property as giving a means
of raising money for payment of debts. The
jury having found that the debtor was a tra-
der, but not insolvent, considering the inter-
est he derived from his credit property; upon
application for a re-hearing, Held, that the
charge was correct, and that the jury were
not to be tied down to test insolvency by any
one circumstance.

Also, that the settlement did not come
within 10 Car. 1. ¢. 26, Ir. (13 Eliz. ¢. 5. Eng.
— Clements y. Eccles, 2 I. Jur. 286. (C.)—[See

[BANKRUPTCY.]

 

Act of 77

the issues directed :—Clements v. Eccles, 11 I.
E. R. 229. (C.)]

2. A railway is a joint-stock company esta-
blished for trading and commercial purposes.

Part of the earthworks of a railway had
been made; but no rails had been laid, nor
had any traffic or trading taken place. Held,
that it was not necessary to prove trading on
the company’s part; and that it might be de-
clared bankrupt as a company established for
trading and commercial purposes.—Re Ban-
bridge Extension Railway, 101. Jur. N. 8. 195.
(B.) [Affd—Zbid, 278. (C.A.)]

3. A railway company is “a joint-stock
company” within the Irish B. &I. Act (20 & 21
Vic., 60); and, as such, is liable to be made
bankrupt.—In re Bagnalstown & Wexford Ry.
Co. 15, I. C. R. 491. (C.A.)

 

IL. 2. What amounts to a Trading.

4 A trader, having for several years resided
and traded in England, took premises in
Ireland, in November, 1860; closed his place
of business in England; removed his family
to Ireland; and, pursuant to advertisements
published in the Irish newspapers, thencefor-
ward carried on his trade in Ireland. Five-
sixths in amount of his debts were contracted
in England. In April 1861, he was adjudged
a bankrupt in England, and in May 1861 in
Ireland. On appeal from the latter adjudi-
cation: Held, that he was residing and trad-
ing exclusively in Ireland, within the 20 & 21
Vic. ce. 60, s. 31.—In re Sanderson, 11 I. C. R.
421. (B.) [Affd—7 I. Jur. N.S. 48. (C.A.).]

5. One who was a trader in England came
to reside in Ireland, where he never carried
on business. After he had discontinued tra-
ding, and after residing in Ireland for three
years, he committed an act of bankruptcy by
filing a declaration of insolvency. A friendly
petition for adjudication was then presented.
Held, that there was no trading to support
such an adjudication—Re Day, 7 I. Jur. N.
8. 163; 71. Jur. N.S. 207. (B.)\—[See Re Day,

‘7 I. Jur. N.S. 309. (C.A.)]

Iu. Act or Bankruptcy; TrapER DEBTOR
Summons.
1. What constitutes one.
a. Generally. ;
b. By persons with privilege of Parlia-
ment.
c. Within 20 & 21 Vic., c. 60.

 

Ill. 1. a. What constitutes an Act of Bank-
ruptey, generally.

6. When the debtor, against whom pro-
ceedings have been taken under sec. 104,
swears to a good defence on the merits, and
states facts from which the Court may infer
that there is » serious question to be tried;
the Court will not compel him to enter into a
bond, until after the time within which the

) | action at law may be tried.—In re M‘Auley, 8

LC.R. 212. (B.)
78 Act

1. A trader debtor summons was served on
the trader on the 8rd January; the debt was
not paid until after noon on the 11th Janu-
ary. The summoning creditor filed a petition
in bankruptcy before noon on the same 11th
of January. Another creditor having inter-
vened under sec. 121, an adjudication was
pronounced on the petition filed on the 11th
January: the act of bankruptcy relied on
being, that the trader had not within seven
days from the service of the trader debtor
summons, paid, secured, or compounded for
the debt, pursuant to sec. 108. Held, that the
adjudication was well founded; that the act
of bankruptcy being complete on the last
moment of the seventh day, might be treated
as having been committed at any time on the
eighth day. Held, also, that the act of bank-
ruptcy could not be undone by the payment
of the debt on the 11th January, and that the
same rule applies to the statutable act of
bankruptcy as to any other, that it cannot be
purged by any subsequent act of the bank-
rupt. Fractions of a day are regarded in
bankruptcy.

The declaration of insolvency mentioned
in section 96 means, merely that the trader
is at the time of making it unable to meet his
immediate engagements, and has no refer-
ence to the possible or probable state of his
assets.—In re Sith § Co., 81. C. R. 374. (B.)

2. When a trader debtor summons has
been served on a debtor, who subsequently
files a petition for arrangement, the en-
largement of the time given by the 20 & 21
Vic., c. 60, s. 11. to answer it, is entirely in
the discretion of the Court; which will be in-
fluenced by considering whether or not the
arrangement is likely to be sanctioned by the
Court.

A trader debtor summons is not a “pro-
cess” within the meaning of the order for
protection under the 343rd sec.—JIn re Dodson,
81.0. R. 388. (B.)

3. A trader appointed with his creditor, to
call at the creditor’s house on a certain day,
to arrange to take up the trader’s acceptance,
falling due on that day. The trader failed to
keep the appointment, or pay any money on
account of the bill. His goods had been sold
under a fi. fa. on the day the petition was
presented. eld, that not keeping the ap-
pointment was an act of bankruptcy.—Lee v.
Martin (1 M. & Rob. 210) considered.—ZJn re
O'Neill, 91. C. R. 279. (B.)

4. A trader, who accompanies one of the
trustees of his marriage settlement to obtain
advice touching his affairs, and hears the
‘attorney advise the trustee to issue an execu-
tion, thereby commits an act of bankruptcy ;
and the fact of his signing a declaration of
insolvency will not be evidence that such
was not his original intention. When pro-
perty is sold under a ji. fa., with notice to
the execution creditor of an act of bank-
ruptcy committed by the debtor, the assignees
are entitled to damages in addition to the pro-
duce of the sale; which the execution creditor

[BANKRUPTCY.]

 

of.

must pay, together with costs, of which the
sheriff must bear a portion—Re Nolan, 6 I.
Jur. N.S. 71. (B.)

5. When a trader by several deeds assigns his
property to a creditor to secure a past debt as
well as to procure future advances ; and whena
third party executes a mortgage to the same
creditor for the same purpose, and then takes
an assignment from the trader by way of coun-
ter security; all the transactions will be deemed
as one deed; and being in part security for a
bygone debt, even though future advances be
made, such assignments are acts of bank-
ruptcy (the assignor being at the time insol-
vent); and will be deemed invalid against his
assignees in bankruptcy.—Re Carroll, 6 I. Jur.
N.S. 244. (B.)

6. A creditor had notice of a deed of sale
executed by the bankrupt to another creditor.
The deed was in terms a conveyance of all the
bankrupt’s stock in trade; but evidence aliunde
showed that the residue of his property was
of some value. Held, that the deed constitu-
ted an act of bankruptcy, and that the first
mentioned creditor had therefore notice of
an act of bankruptcy, when the surround-
ing circumstances sufficed to furnish an in-
ference that the bankrupt’s property had
substantially been conveyed.

Quere—Is notice of a trader’s execution of
a deed, which does not, on its face, disclose an
act of bankruptcy, notice of such an act ?—
Re John O'Brien, 71. Sur. N.S. 148. (B.)

7. A creditor, to overreach a trust deed
executed for the benefit of creditors, pro-
cured an adjudication in bankruptcy. Unless
he succeeds he must lodge a sum of money to
meet the costsif there are not any assets. A
trader’s trust deed of assignment, executed
for the benefit of all his creditors, complied
with the forms of the 20 & 21 Vic., c. 60, s. 93.
Held, not an act of bankruptcy under s. 92,
being protected by s. 93, when more than three
months elapse between its execution and the
bankruptcy.—Re Phelan, 7 I. Jur. N.S. 281.
(B.)—[See In re Phelan, 12 1. C. R. 467. (B.)]

8. A trader, on the eve of bankruptcy, but
in pursuance of a previous agreement with a
party who had bona jide advanced money,
executed a deed of mortgage to the lender,
who, when the deed was executed, knew
nothing to vary it from a simple fulfilment of
the agreement. Held, that the execution of
the deed was not an act of bankruptcy, but
was valid against the assignees,—Re M‘Kean,
81. Jur. N.8. 16. (B.)

9. A party bringing a frivolous or unfoun-
ded action, by which the defendant is put to
costs, fraudulently contracts a debt under the
Insolvent Act.—Dunne’s Case, 1B. & J. Rep.,
adopted.—Re Carpenter, 9 I. Jur. N.8..20. (B.)

10. An assignment of a trader’s property,
which must result in the stoppage of his trade,
and prevent him from paying other creditors,
is an act of bankruptcy. An exception from
an assignment (which leaves the trader in pos-
session of the other chattels assigned) of all
Act of.

the book debts due to him, does not prevent
the assignment from being an act of bank-
ruptcy; and all the property purporting to be
assigned thereby passes to the assignees —Jn
re Lilburn, 101. Jur. N.S. 99. (B).

1. A trader, wishing to consult his attorney
about signing a declaration of insolvency, ap-
pointed to meet a creditor’s attorney after
seeing his own; but, finding him from home,
returned home at 9 p.m.; and, leaving a note
for the creditor’s attorney, in case he should
call, went out with his wife to sleep at a
friend’s place. Held, an act of bankruptcy.

A trader, a few days before the falling due
of a large bill which he owed, informed the
trustees of his marriage settlement that he
was in a state of insolvency. Being served
with a summons and plaint at their suit, he
signed a consent for judgment. Held, an act
of bankruptcy.—Re R. Donovan, 11 I. Jur.
N.S. 18. (B.)

 

Tl. 1. b. By Persons with Privilege of
Parliament.
Persons having the Privilege of Parliament

may be dealt with as others, save as to arrest.
20 & 21 Vic., c. 60, s. 91.

 

Til. 1. ce. Wiruiw 20 & 21 Vie. c. 60.
(See ante, p. 78: Nos. 1, 3, 7, 8.)

 

TW. 2. Errecr anp Nature or Act or
BANKRUPTCY.

2. In 1834, P., a trader, passed his bond and
warrant, &c., to secure £450 to B., who entered
judgment thereunder as of the next T. Term.
In 1839, B., having duly revived, presented,
under the 5 & 6 W.4, c. 55, a petition for a
receiver. The conditional order, dated the
24th of April, was made absolute on the 15th
of May. On the 12th of June the Master's
report, approving of K. as receiver, was con-
firmed, and the tenants were ordered to pay
him. Pending these proceedings, K. com-
mitted an act of bankruptcy. On the 27th of
May, there issued against P. a commission of
bankruptcy, under which he was, onthe 10th
of June, declared a bankrupt. The assignee
moved to remove K., and that the rents re-
ceived should be paid to himself. Held, that
a judgment entered on a warrant of attorney
given by a trader is to be considered as a
judgment by confession within the 6 W. 4, c.
14, s. 126; that a judgment creditor, having
an order, under the 5 & 6 W.4, c. 55, s. 87,
for the appointment of a receiver, continues
nevertheless a creditor having security for his
debt, within the 6 W. 4, c. 14, s. 126, until
the rents have been paid to him in satisfaction
of his demand ; that therefore the appoint-
ment of K. was overreached by the bankruptcy,
and that K. should be removed.

Semble—The absolute order isthe order for
the appointment of a receiver within the 5 &6
W. 4, ¢. 55, s. 87.—Baker v. Pettigrue, 21. E.
R. 144. (R).

8. A trader, possessed of a chattel real,
acknowledged a judgment, and subsequently
to its rendition the chattel real was sold under

[BANKRUPTCY.]

 

Creditors. 79
afi. fa. upon a puisne judgment The trader
was afterwards declared a bankrupt. Held,
that the first judgment was not levelled by the
bankruptcy, and that its amount might be
raised out of the chattel real in the hands of

the purchaser, who was one with notice.—
Willock v. Dargan, 11. C. R.39. (C).

 

IV. Creditors generally: their Rights, Duties,
and Liabilities.

4. An unregistered mortgage has priority
over the subsequent certificate of the appoint-

| ment of assignees.—Leech v. Law, 1 I. Jur.

41. (C)

5. A trader petitioned the Court under the
arrangement clauses, with a view to pay a
composition by instalments. The proposal was
accepted, and two instalments were paid. The
trading continued, debts with new creditors
being contracted, credit having been given to
the trader, not to his trustees. Upon failure
to pay all the instalments, the case was turned
into bankruptcy. The new creditors had no
priority over the arrangement creditors, al-
though the goods supplied by the new credi-
tors evidently aided to make the payments
which were made.

The arrangement creditors were remitted
to prove for their original debts, giving credit
for the payments received—Re Wilson, ex. p.
Charley, 7 I. Jur. N. 8. 367. (B.)

6. Where A. equitably mortgages his pro-
perty to B.’s creditors as a security for the
debt of B., who afterwards becomes bankrupt,
the Court of Bankruptcy ought not to order
the sale of A.’s property, and cannot adjudi-
cate upon the rights of third parties to, or the
trusts upon, that property—Re Purcell, 9 I.
Jur. N. 8. 102. (C. A).

7. A trader executed a trust deed, purport-
ing to be for the benefit of all his creditors
who executed it within a month. It was
advertised in accordance with the 20 & 21 Vic.,
c. 63, s. 93. A creditor who had at first as-
sented to it, and afterwards, more than three
months after its execution, obtained an adjudi-
cation against the trader, sought to compel
the trustees under the deed to bring in and
lodge in the bankruptcy matter whatever they
had realised under it, on the ground that the
deed was not protected, inasmuch as it was
an act of bankruptcy. Held, that having been
privy and assenting to the provisions of the
deed, although he did not execute it, he could
not question its validity ; but that the form of
the deed drafted from the ordinary litho-
graphed precedent was objectionable, and did
not entitle trustees to the benefit of the 93rd
sec.; in fact, that such form is contradictory
in its terms, as purporting to be for the benefit
of all the creditors, and then attempting to
exclude such creditors as did not execute it
within a time named.

Semble—All creditors coming in before the
trust fund is distributed are entitled to
their dividends—Re Smart, 9 I. Jur. N.S.
195. (B),
80 Petitioning.

1. The trustees of « deed of arrangement
under the Bankruptcy Act, 1861, were autho-
rised thereby to employ the debtor or any
other person in winding up his business, and
realising the property comprised in the deed,
and to pay such person a salary. Held, that
this clause did not invalidate the deed against
a creditor who did not assent thereto.

A statement in the debtor’s affidavit lodged
with the Registrar of the Court of Bankruptcy
in England, that the amount in value of his
property, credits, estate and effects comprised
in a deed of arrangement, is under a certain
sum, sufficiently complies with the Bank-
ruptcy Act, 1861, sec. 192, condition 5.—
Russell v. Murphy, 16 1. C. R. 54. (RB).

 

V. Petitioninc CREDITOR.

1. Who may be.

2. His Rights, Duties, and Liabilities.
a. In general.
b. Respecting Opening the Fiat.
c. Respecting Costs.

3. Effect of his compounding with the Bank-

rupt.

4. His Bond: its assignment.

5. Petitioning Creditor’s Debt.
a. Its nature and amount: Proof of.
b. Substitution of.
v. Evidence of. See infra, VI.

V. 1. Who may be a Petitioning Creditor.

2. A corporation aggregate may be peti-
tioning creditor, and issue commission, and
prove.—In re Beale, 2 Dr. & War. 375. (C).

3. A trader presented an arrangement peti-
tion, obtained a protection order, and lodged
the money required by the Court. Held, that
a creditor might, nevertheless, obtain an adju-
dication in bankruptcy upon an act of bank-
ruptcy committed by the trader before filing
the arrangement petition.—Re Kilmarton, 11
I. Jur. N.S. 240. (B).

 

V. 2. His Rights, Duties, and Liabilities.
a. In general.
b. Respecting the Fiat.
c. Respecting Costs.

4. A trader debtor summons was served on
the trader on the 3rd Jan. The debt was not
paid until after noon onthe 11th Jan. The
summoning creditor filed his petition in bank-
ruptcy before noon onthe 11thJan. Another
creditor having intervened under sec. 121, an
adjudication was pronounced on the petition
filed on the 11th Jan.; the act of bankruptcy
relied on being that the trader had not, within
seven days from the service of the trader
debtor summons, paid, secured, or compounded
for the debt, pursuant to sec. 108. Held, that
the adjudication was well founded ; that the
act of bankruptcy, being complete on the last
moment of the seventh day, might be treated
as having been committed at any time on the
eighth day.

That the act of bankruptcy could not be

[BANKRUPTCY]

 

Creditor.

undone by the payment of the debt on the
lith Jan., and that the same rule applies to
this statutable act of bankruptcy as to any
other—that it cannot be purged by any sub-
sequent act of the bankrupt. Fractions of a
day are regarded in bankruptcy. The decla-
ration of insolvency in sec. 96 means merely
that the trader is, at the time of making it,
unable to meet his immediate engagements,
and has no reference to the possible or pro-
bable state of his assets.—Jn re Smith § Pen-
rose, 8I. C. R. 374. (B.)

5. When atrader debtor summons has been
served on a debtor, who subsequently files a
petition for arrangement, the enlargement of
the time given bysec. 11, to answer it, is entirely
in the discretion of the Court; which will be
influenced by considering whether or not the
arrangement is likely to be sanctioned by the
Court.

A trader debtor summons is not a “pro-
cess” within the meaning of the order for
protection under the 348rd section—ZIn re
Dobson, 8 I. C. R. 388. (B.)

V.2 a. In general.

6. The Court of Bankruptcy has not jurisdic-
tion to take an admission of debt off the file, on
the ground that it was filed under a misappre-
hension of its effect, or under circumstances
which, if known to the Court, would have
entitled the debtor to obtain an extension of
time from the Court.—In re Hutchings, 10 I.
C. R. 108. (B.)

7. A trader presented a petition for arrange-
ment on Jan. 3rd. The first private sitting
was fixed for Jan. 10th. On that day the
trader did not attend. The petition was dis-
missed for non-attendance. During the sitting
of the Court, on that day, the trader filed a
declaration of insolvency, and a petition of
bankruptcy against himself, founded on the
declaration of insolvency. On Jan. 13th a
creditor filed a petition of bankruptcy against
him, founded on the dismissal of the petition
for arrangement. On the application of the
petitioning creditor, on the sitting for adjudi-
cation on the trader’s petition, the creditor’s
petition was ordered to be proceeded with in
preference to the trader’s.—Jn re Hegarty, 10
I.C.R.117. (B.)

 

V. 2 b. Respecting Openiny the Fiat.

 

‘ V. 2c. Respecting Costs.

 

V. 3. Effect of his Compounding with the
Bankrupt.

 

V. 4. His Bond: Its Assignment.

9. Quere—Can a joint-stock company, em-
powered to bring actions in the name of a
third person as secretary, issue a commission ?
Commission,

The provision in the 11 & 12 G.8, c. 8,5. 10,
touching the bond and affidavit, being direc-
tory only, and not conditional, where the
affidavit was made by one officer of the cor-
poration, and the bond given by another
officer, the corporation being the petitioning
creditor. Held, that it was within the discre-
tion of the Great Seal to support the Com-
mission, though not strictly regular. In this
case the Commission was declared valid, the
Lord Ch. not requiring the opinion of a Court
of Law, since its judgment could not influence
his discretion in which the matter of form
lay. The corporation’s petition to give a bond
n. p. t. was dismissed with costs, to be set
against thé costs incurred in resisting the
petition to supersede. The rule as to costs in
favour of bankrupts was qualified so far as
they would have to receive costs. The Ld.
Ch. expressed great doubt touching the effect
of orders n. p. ¢. generally, and especially
when they might by relation bear upon inter-
mediate criminal acts— Ex parte Sneyds ; ex p.
Bank of Ireland, re Sneyds, 1 Mol. 261. (C.)

 

V. 5. Petrrioninc Crepitor’s Dest.
a. Amount and Nature of ; Proof of.
b. Substitution of.
c. Evidence of. See infra, VI.

 

V. 5. a. Amount and Nature of Petitioning
Creditor’s Debt.

1. A petitioning creditor, to whom a further
debt was due, and who also held policies of
insurance, proved on a bill of exchange. On
making the proof; Held, unnecessary to pro-
duce the policies; but the Court permitted
him to state at the bottom of the proof that
he had such securities.

A trader filed a petition to be declared a
bankrupt. Afterwards a creditor filed an-
other. The creditor got priority, and costs of
the petition filed by the trader were not given
him.—Re Daly, 6 1. Jur. N. 8. 418. (B.)

2. A trader was brought before the Court
upon a trader-debtor summons to compel pay-
ment of a debt composed of costs of a de-
murrer to one of the defences filed by the
trader in an action. The issues were still
untried. The Court dismissed the petition;
because upon a general finding the defendant
might be entitled to have the costs of the
demurrer set off against those of the verdict;
and because there might be a verdict for the
defendant.—Re a Summoned Trader, 11 I. Jur.
N.S. 240. (B.)

V. 5. 6. Substitution of.

 

 

5 c. Evidence of. See infra, VI.

 

VI. Commission or Fiat.

1. Miscellaneous: relation of this Process
to others.
2. Docket : which of two Dockets will be pre-
Serred.
3. Issuing Commission: to whom issued in
cases of competition,
a. In general.
b. Under the 6 W. 4, c. 14.

[BANKRUPTCY.]

 

or Fiat. 81

c. Direction and Removal of Fiat: Change
of Venue.

Description of Bankrupt.
Sealing and Re-sealing Commission.
Amendment of Commission.
Country Commission.
Second or Third Commission.
Auailiary and Renewed Commission.
Concerted Commission.
Superseding or Annulling Commission.
a. Generally ; its Nature and Effect.
b. When, and in what cases.
c. Who may supersede.
d. On Consent, and by Arrangement.
e. Petition to supersede ; practice on.
12. Writ of Procedendo.
13. Commissions against Partners.

a. Joint or Separate Commissions: gene-

rally.

b. Rights under: extension of : generally.

14. Opening.
ime for prosecution of.

a

b. Adjudication.

ec. Evidence ¥f Trading: Act of Bank-
ruptcy ; Petitioning Creditor’s Debt.

d. Advertisement in Gazette.

e. Messenger.

f£. Provisional Assigment,

i SO. 09 SS Orie

me

 

VI. 1. Miscellaneous: relation of this Process
: to others.

8. When the first sitting under the 20 & 21
Vic., ¢. 60, s. 343, had been held, and three-
fifths in number and value of the credit-
ors had consented to the arrangement, the
Court, under sec. 111, adjourned the hearing
of the trader debtor summons until four days
after the time appointed for the sitting under
the arrangement clauses.—Anon., 7 I. C. R.
292. (B.)

4, When a petition for an arrangement had
been filed, and protection from process granted,
and afterwards a creditorissued a trader debtor
summons, the Court enlarged the time for
calling on the trader to state whether or not
he admitted the demand, until after the time
appointed for the first sitting under the ar-
rangement clauses.—Anon., 71. C. R. 293. (B.)

 

VI. 2. Docket: which of two Dockets will be
Preferred.

5. A. having committed an act of bank-
ruptcy, B. lodged with the Secretary of
Bankrupts the affidavit of debt required by
the Bankrupt Act. C. subsequently upon the
same day deposited with the officer the affida-
vit of his debt, and the bond required by
6 W.4, c. 14, 8. 30. Held, that, notwithstanding
B.’s priority in lodging the affidavit, C. had
the first regular docket, and was therefore
entitled to have the commission.

Semble—A commission of bankruptcy may
be issued by the Bank of Ireland. re
Beale, 2 Dr. & War. 375. (C.)

6. A trader, residing and carrying on busi-
ness exclusively in Ireland, was, while within
the district of an English Court of Bank-
ruptcy, adjudicated bankrupt by that Court.

1
82 Commission.

Held, that such adjudication was void as
against a subsequent adjudication by the
Trish Court of Bankruptcy.—Jn re Rogers,
91.C.R.150. (C.A.).

 

VI. 3. Issuing Commission: to whom issued in
cases of competition.
a, In general.
b. Under the 6 W. 4, c. 14.
c. Direction and Removal of fiat: Change
of Venue.

 

VI. 3. a. Issuing Commission generally: in
cases of Competition.

1. The solicitor of the petitioning creditor
on one and the same day filed the affidavit
necessary for obtaining a commission of bank-
ruptcy ; applied for the commission, and paid
the necessary fees, but did not state that it
was required for that day. It was not issued,
nor did it bear date until the following day.
The Court refused to alter the date to the
former day, it not appearing that there was
any default on the part of the officer of the
Court in not issuing it as of that day.

Quere—Whether the Court would have
altered the date if its officer had been in
default ?—Jn re Digan, 13 I. E. R. 328. (C.)

VI. 3. b. Under the 6 W. 4, c. 14.

 

 

VI. 3. c. Direction and Removal of Fiat:
Change of Venue.

 

VI. 4. Description of Bankrupt.

2. A commission of bankruptcy against a
surviving partner need not describe him ex-
pressly as surviving partner, though the
petitioning creditor’s and other debts be
debts of the firm; and although it may not
fall within ss. 83, 73, or 1038, of the Bankrupt
Act, it can be worked under a special order,
if necessary, so as to administer partnership
property.—Ex p. Mackey, In re M‘Intyre, 12 1.
E. R. 318. (C.)

 

VI. 5. Sealing and Re-sealing Commission.

 

VI. 6. Amending Commission.

3. The solicitor of the petitioning creditor
on one and the same day filed the affidavit
necessary for obtaining a commission of bank-
ruptcy; applied for the commission, and paid
the necessary fees, but did not state that
it was required for that day. It was not
issued, nor did it bear date until the fol-
lowing day. The Court refused to alter the
date of the commission to the former day,
it not appearing that there was any default
on the part of the officer of the Court in not
issuing the commission as of that day.

Quere—Whether the Court would have
altered the date if its officer had been in
default ?—Jn re Digan, 13. I. E. R. 328. (C).

 

VI. 7. Country Commission.

 

VI. 8. Second or Third Commission.

 

[BANKRUPTCY.]

 

Superseding.

VI. 9. Auziliary and Renewed Commission.

4. The Court will renew a commission of
bankruptcy, though issued forty years since,
there being no objection made to the appli-
cation.— Ex p. Cole, 31. Jur. 3. (C.)

5. A commission of bankruptcy will be re-
newed, though thirty years have elapsed, no
proceedings having been taken in the mean-
time, the bankrupt also having been dead for
several years.—In re Doherty, 7 I. Jur. 303. (C.]

 

VI. 10. Concerted Commission,

 

VI. 11. Superseding or Annulling Commission.

a. Generally: its Nature and Effect.
b. When, and in what cases.

c. Who may Supersede.

d. — On Consent, and by Arrangement.
e. Petition to Supersede—Practice on.

VI. 11. a. Generally
ling

Effect.

6. When a bankruptcy is annulled under

20 & 21 Vic. c. 60, s. 149, the Court will re-

quire all the assignee’s costs and expenses to

be paid, with poundage upon the value of the

bankrupt’s estate, although not realised by

(B) assignees.—In re Comyns, 7 I. C. R. 294.

 

of Superseding or Annul-
‘ommission ; its Nature and

.

7. After an order for protection, under the
arrangement clauses of the 20 & 21 Vic., c. 60,
has been made, the Court has no jurisdiction
to dismiss the petition, except for the causes
mentioned in sec. 353. The Judge of the Bank-
rupt Court dismissed such a petition, for a
reason not mentioned inthat section. One of
the Assistant Registrars of the Court, by
direction of the Judge, attended on the hear-
ing of the appeal against the order of dismis-
sal, to inform the Court of Appeal that no
question of jurisdiction had been raised in
the Court below. Held, that the petition had
been improperly dismissed, and that the order
dismissing it ought to be reversed.—In re
Craig, 8 I. C. R. 393; Dr. Rep. temp. Napier,
394; 41. Jur. N.S. 101. (C.A.) -

8. A composition after bankruptcy to dis-
senting parties. Unless the whole is paid in
cash, such creditors will be bound by the sta-
tutable majority of the other creditors. It
need not be a money payment in presenti ; but
the bankruptcy will not be annulled until the
composition is fully carried out. The great
body of creditors ought to be considered the
best judges of what is advantageous to all.
If a trader’s conduct be fraudulent it may
disentitle him to come in under the arrange-
ment clauses at all. But negligent and im-
proper trading, and loose statements made to
creditors, without any fraudulent intent, will
not prevent him doing so.—Re Kelly, 6 I. Jur.
N.S. 258. (B.)

 

VI. 11. b. When and in what cases.
9. A separate fiat issued against A., and a
joint one against A., B., and C. There being
Superseding.

difficulty in proving the bankruptcy as to the
latter, the Court refused to supersede the
former, but suspended it, with liberty to apply.
—ZIn re Beale, 2 Dr. & War. 566. (C.)

1. B., a creditor, signed a letter of license
to §., ‘which would suspend his debt; but
verbally stipulated that he would not be
bound unless all §.’s creditors signed. Seve-
ral did not sign. A commission of bankruptcy
having been sued out by B., an issue was
directed to try whether the letter bound him.
The jury found it did not; but also found
that the condition annexed to his signature
was not communicated to other creditors who
signed when and after he signed. The Court
refused to supersede the commission. Held,
that without deciding whether the parol evi-
dence was properly received, the order was
conclusive against another petition to super-
sede on the same grounds; and Held, on a re-
hearing, that the order was correct.

Distinction between a composition deed
and letter of license, as to the necessity of all
creditors concurring.

At a meeting of 8.’s creditors, it appeared
doubtful whether he was a trader. A solici-
tor, who was a creditor, and concerned for
another, but not of sufficient amount to sup-
port a commission, insisted that S. was a
trader, and guaranteed B., another creditor,
against costs, if B. would allow him to use
his name as petitioning creditor. Held, that
though such an arrangement was improper and
against the policy of the Bankrupt Laws, the
Court should not, three years after, supersede
the commission, on the petition of S. he
having used its protectian and failed in im-
peaching it on other grounds ; or, on the peti-
tion of a creditor, it appearing that bank-
ruptcy was inevitable, and the commission
had been bona jide worked.

Special order made as to the sale of mort-
gaged property, the subject of a suit in which
the mortgage was impeached, the mortgagee
desiring to bid at the sale-—Jn re Semple, 12
I. E.R. 338. (C.)—[See In re Semple, 3 Jon.
& L. 488. (C.)]

2. A commission of bankruptcy was issued
pending a motion to set aside a verdict in an
action against the bankrupt. The petition-
ing creditor was the plaintiff’s clerk, and
he had bought up bills for the purpose of
creating a petitioning creditor’s debt. The
bankrupt’s own conduct was suspicious. Held,
‘that although the commission may have been
collusively issued to prevent the bankrupt re-
sisting the action; yet as there were other
creditors, for whose benefit it would be worked,
it should be superseded.

The fact that a commission of bankruptcy
is issued for an indirect and improper object
is not a ground for superseding it, if that be
not the sole object.—Jn re Wail, 12 I. E. R.
285; 11. Jur.1. (C.)

3. A bankrupt left Ireland and went to
America, taking with him a sum, part of
which he expended in settling with his credi-
tors, who released him, and having returned,
sought to have the commission superseded.

[BANKRUPTCY.]

 

, Commission. 83

The Court refused to entertain any application
until the bankrupt surrendered, which he
should do at his own cost.—In re Reynolds, 2
I. Jur. 185. (C.) :

4, A bankrupt, after bankruptcy, proceeded
under the 20 & 21 Vic., c. 60, ss. 149, 150, to
carry out a composition of which he paid the
two first instalments. The Court, upon pay-
ment of the costs of the bankruptcy, annulled
the adjudication before payment of the last
instalment: that course appearing beneficial
to the creditors and to the trader himself.—
Re Hugh Kelly, 61. Jur. N. 8, 3874. (B.)

5. Although it is a bankrupt’s bona fide in-
tention to show cause, on the ground that he
has not committed an act of bankruptcy,
against his adjudication; and has taken the
necessary proceedings to do so; he may, never-
theless, be committed for unsatisfactory an-
swering, and for not giving up money in his
possession, before the validity of the adjudi-
cation is decided. When there is a dispute
between the creditors and the alleged bank-
rupt, the matter may, with the Court’s con-
sent, be referred to arbitration, pending pro-
ceedings to show cause. Upon the arbitrators
making their award, the bankruptcy will be
annulled.—In re a Disputed Adjudication, 11 I.
Jur. N. 8. 324. (B.)

6. An arranging trader, having presented
his petition to the Court, filed the usual affi-
davit of assets, which consisted partly of an
interest in a valuable house of business,
alleged to have been made the subject of a
marriage settlement; the trader having re-
ceived as a marriage portion £400, charged on
his property. The settlement, being submitted
to the creditors, was believed to be genuine.
A composition of 10s. in the £1 was agreed
to, and actually paid. Afterwards it was dis-
covered that the alleged marriage was void:
the trader having had a wife living at that
time. Held, that the arrangement proceed-
ings should be set aside, and the case turned
into bankruptcy, although the composition had
been paid.—Re an Arranging Trader, 11 I. Jur.
N.S. 336. (B.)

 

VI. 11. c. Who may supersede.

 

VI. 11. d. Superseding or annulling Commission
on consent or by arranggment.

7. Practice. Supersedeas on consent of
creditors ; verifying affidavit sworn before a
British Consul; Held, sufficient. Notice ne-
cessary to purchaser of part of bankrupt’s pro-
perty— Ex p. & re Hutton, 6 I. BE. R. 522.
(C.)

8, When all the creditors execute a re-
lease of a debtor against whom a commission
has been sued out during his absence from
this country, the Court will supersede the
commission on consent, although he has not

.surrendered.— Ex parte Brennan, 3 I. Jur. 63,

(B.)
84 Supg. Comn.

1. After bankruptcy, a bankrupt arranged
with his creditors to pay them a composition
outside the Court. He then was not called
upon to file a schedule and balance-sheet, he
having filed a verified list of creditors. Upon
presenting a petition founded on their con-
sent, and paying the costs, the adjudication
was annulled.—Re Feagan, 6 I. Jur. N.S. 375.
B)

 

VI. 11 e. Petition to supersede Commission ;
Practice on.

2. A commission issued in 1838. On a pe-
tition for a supersedeas in 1844, the Lord
Chancellor said, that the petition should have
set forth the cause of delay; and directed
an inquiry before the Commissioner to ascer-
tain whether, under the circumstances stated,
and the provisions of the 151lst sec. of the
Bankrupt Act, the petitioner was entitled to
have the commission superseded.—Ex parte
Ferguson, 61. E.R. 521. (C.)

3. Practice. Supersedeas on consent of cre-
ditors: verifying affidavit sworn before a
British Consul; Held, sufficient. Notice ne-
cessary to a purchaser of part of the bank-
rupt’s property—L£x parte Hutton, 61. E. R.
522. (C.)

 

VI. 12 Writ of Procedendo.

 

VI. 18. Commission against Partners.

a. Joint or separate Commissions generally.
b. Rights under; extension of; generally.

 

VI. 13. a. Joint or separate Commissions ; sus-
pension of ; generally.

4. A separate commission of bankruptcy
issued against A., and a joint commission
against A., B., and C. As there was some
difficulty in the proof of the act of bank-
ruptcy, upon which the joint commission
issued, the Court refused to supersede the
former commission, but ordered it to be sus-
pended, with liberty to the parties to apply.—
In re Beale, 2 Dr. & War. 566. (C.)

5. A petition for arrangement was pre-
sented under sec. 343. The petitioner was a
member of a subsisting trading co-partner-
ship; and a large proportion of the debts for
which he proposed to arrange were partner-
ship debts. It did not appear that the
remaining partners had agreed with the peti-
tioner to take on themselves the payment of
the partnership debts. The Court refused to
grant the prayer of the petition, and left the
trader to proceed in bankruptcy.—Jn re Par-
rott, 81. C. R. 391. (B.)

VI. 13. b. Rights under: Extension of
generally,
6. A Railway Co. is a Joint-stock Co. esta-
blished for trading and commercial purposes,
and a commission in bankruptcy may issue

[BANKRUPTCY.]

 

Witnesses.

against them as such, without proving any
trading on other part.—Re Banbridge Extension
Ry., 10 I. Jur., N. 8.195. (B.)—[Affd. 1b. 278.
(C.A.) Re Bagnalstown §& Wexford Ry. Co.,
15 J.C. R.491, (C.A.)

 

VII. Commissioners.

1, Who may and ought to be: their appoint-
ment and remuneration.
2. Powers, Rights, Duties, and Liabilities.
2.* Their certificate.
3. Witnesses before.
a. Their attendance.
b, Their privilege from arrest.
¢. Examination and committal of.

 

VIL. 1. Who may and ought to be: their appoint-

ment and remuneration.

 

VII. 2. Powers, Rights, &c., of Commissioners.

7. If upon application for payment by the
assignee’s agent, to a party returned as debt-
or to the bankrupt, no satisfactory explana-
tion be given, a summons will be issued,
requiring the party to attend at his own ex-
pense before the Commissioners, and give
every information respecting the debt. If
the debt be not due, an acquittance of it can
be proved.

It is discretionary with the Commissioner
to give any costs or charges to the summoned
party suspected of having bankrupt’s property,
or supposed to be indebted to the bankrupt.
—In re O’ Connor, 3 I. E. R. 363-64. (C2)

8. The salary of the Second Commissioner
of bankrupt is not charged on the suitors’
fee-fund in aid of the bankruptcy and com-
pensation fund, but on the latter fund alone.
The Court has no power, on a deficiency, to
marshal the funds so as to provide for the
payment of the salaries of both Commission-
ers.—In re Commissioner of Bankrupt, 8 I. E.
R. 257. (C.)

9. Under the 12 & 13 Vic., c. 107, s. 56, the
Commissioners will close the examination of
a bankrupt and disqualify him from applying
for a certificate, if it appear to them that
there is any reason to doubt the truth or ful-
ness of the discovery he has made of his
dealings—Jn re Furlong § Shields, 21. Jur.
266. (B.)

VI. 2.* Their Certificate.

 

VIL. 3. Witnesses before.
a. Their attendance.
b. Their privilege from arrest.
c. Examination and committal of.

 

VII. 3. a. Attendance of Witnesses before
Commissioners.
10. If upon application for payment by the
agent of the assignee to a party returned as
debtor to the bankrupt, no satisfactory ex-
Bankrupt's

planation be given, a summons will be issued,
requiring the party to attend at his own ex-
pense before the Commissioners, and give
every information with respect to the debt.
If the debt be not due, an acquittance of it
can be proved.

It is discretionary with the Commissioner
to give any costs or charges to the summoned
party suspected of having bankrupt’s pro-
perty, or supposed to be indebted to the
bankrupt.—In re O'Connor, 3 I. E. R. 363,
364. (B.)

 

VI. 3. b. Their privilege from arrest.

 

VII. 3. c. Examination and committal of.

1. There is not any distinction between a
bankrupt, and a witness who is examined
touching w bankrupt’s property: the test in
every case is—can a reasonable man believe
the account given?

A warrant of committal need not refer to
the particular answers deemed unsatisfactory.
It suffices to refer to the evidence generally ;
and to ask the bankrupt or witness—whether
he can give any other account? A disclosure
by the examination of grounds for a criminal
prosecution, is not a bar to the exercise of
the Court’s jurisdiction to commit for unsa-
tisfactory answering. For unsatisfactory an-
swering this Court has power to commit to a
criminal prison. A witness examined in
Dublin may be committed to Kilmainham,
instead of the Four-Courts Marshalsea.—Re
M‘Cann, 91. Jur. N. 8.77. (B.)

 

VIL. Banxrvrt.

1. His Rights, Duties, and Liabilities.
a. Discharge from Execution.
b. Allowance and Maintenance.
c. His privilege from Arrest.
d. In other cases : generally.
2. Examination of.
8. Committal of: Warrant of Committal.
4. Surrender.
Surplus. See infra, IX.

 

VIII. 1. His Rights, Duties, and Liabilities.

 

VII. 1. a. Bankrupt’s discharge from execution.

2. A bankrupt, travelling from London to
Dublin, learned at Liverpool that a commis-
sion had issued against him. He proceeded
to Dublin to surrender on the 21st of March;
but, finding that he was not bound to do so
until the 24th, deferred it until that day :
meantime he was arrested. Held, not entitled
to a discharge under the 6 W. 4, c. 14, s. 136,
as being on his way to surrender.—Jn re Wall,
121. E. R. 285;11. Jur. 1. (C).

3. If a party be in custody at the time of
the issuing the commission by another creditor,
the Court will not discharge him on his sur-
render, unless his conduct entitles him to the
a of the Court.—ZJn re Foster, 3 I. Jur. 28.

4. The solicitor of an opposing creditor in-

[BANKRUPTCY.]

 

Rights, sc. 85

formed the insolvent’s solicitor on the morning
of the hearing, of his intention to persist in
his opposition. The case was called on in the
momentary absence of the creditor’s solicitor.
There being no one present to oppose, a dis-
charge was pronounced by the Judge. The
creditor’s solicitor and counsel came in imme-
diately+ after, and asked a hearing. Held,
that a solicitor does not by communicating
with the solicitor at the other side, lay him
under any obligation, or constitute him his
agent, to convey such a communication to the
Court. The Court cannot in such a case annul
or review the adjudication under the 233rd
sec. of theB. & I. Act, on the ground, that it
was improperly or fraudulently obtained. The
discharge pronounced by the Judge under the
the 212th sec. is in itself a final and conclu-
sive adjudication ; and it is not necessary to
its completeness that the written order and
warrant to the gaoler (under sec. 219) should
be made out by the officer of court.

When such an adjudication has been pro-
nounced by the lips of the Judge, he has no
power to set it aside under the 236th sec., on
the ground that the discharge was a mistake.
In re Logan, 9 I. C.R. 569; 5 I. Jur. N.S.
41. (B).

5. A bankrupt, committed for unsatisfactory
answering, will be discharged from custody,
if not furnished with copies of his depositions
within 24 hours after committal—Re R. Mur-
phy, 5 I. Jur. N. 8. 219. (B).

6. On the 3rd of Nov., D. filed a declaration
of insolvency. On the 22nd Nov., a creditor
of D., with notice of the act of bankruptcy,
seized the goods of D., under a fi. fa. On the
24th Nov., D. presented a petition for ar-
rangement, and obtained the usual protection
order. Held, that the order operated against
the previous seizure, so as to prevent the
execution creditor proceeding to a sale. The
Bankrupt Court has jurisdiction to make an
order restraining the execution creditor from
proceeding. Remarks on the laches of both
parties in delaying the application to the
Court. The rights of the execution creditor,
in such a case, will be protected (in the event
of the arrangement proving abortive) by the
the lodgment of a sum of money in Court, to
meet his demand in that event—ZJn re Dela-
hoyd, 111. C. R. 404. (B).

7. It is not necessary that the warrant
committing a bankrupt for unsatisfactory an-
swering should state that the questions were
put by the Judge, or that such should have
been the fact. The words, “by and before
me,” at the commencement of the deposition
are sufficient.

In order to discharge the bankrupt, the
Court before which He is brought a habeas
corpus must be fully satisfied that the J udge
below was wrong in committing him,

_ The question to be decided in each case
is :—Whether the answers of the bankrupt
are such as would satisfy the mind of a rea-

a. man.—In re Courtney, 11 I. C. R. 410.
86 Bankrupts’

VII. 1. b. Bankrupt’s Allowance and
Maintenance.

1. The entire assets of a bankrupt amounted
to little more than the £20 worth of furniture,
excepted by the statute. He was allowed
that amount, there being no evidence of abso-
lute fraud or concealment.

That he had not surrendered or filed a sche-
dule did not disentitle him, when the state of
his health disenabled him to do so.—Re
Connell, 6 I. Jur. N. 8. 419. (B).

2. A member of a firm trading in England
and Ireland became bankrupt in Ireland. The
other member of the firm became bankrupt in
England. The former, having obtained his
certificate in Ireland, applied for the statut-
able allowance under the 20 & 21 Vic., c. 60.
ss. 302, 303. Held, that the allowance should
be calculated on his separate estate, and on
his share of the joint estate, but not on the
whole joint estate—ZJn re Lunhams, 7 I. Jur.
N.S. 403. ,(B.)

3. R., of the firm of L. and Co., was made a
bankrupt in Ireland. The other member of
the firm was made bankrupt in England. R.,
having obtained his certificate, applied for an
allowance under sec. 302. Held, that the allow-
ance should be calculated on his separate
estate, and on his share of the joint estate ;
but not on the whole joint estate—[Ezx
parte Lomas, 4 Dea & Ch. 240, approved
of.|—In re Lunhams, 12 1. C. R. 471; 71. Jur.
N.S. 403. (B.) :

4, The allowance paid to bankrupt partners,
whose joint estate has paid a dividend which
entitles them to an allowance, will be double
that paid on a separate estate—T[Gibdbs v.
Howard, Montague’s Rep. 105, upheld.]

Quere—If only the one amount was given
to both bankrupts, could they appeal success-
fully ?—Re Scott, 8 I. Jur. N. 8. 160. (B).

 

VI. 1. c. Bankrupt’s Privilege from Arrest.

5. From the circumstances under which a
letter of license has been signed, it may be
inferred that it was not « concluded agree-
ment binding upon the person so signing it:
e. g., when it was only in course of signature
by the creditors generally, and it was not
intended to operate unless signed by an influ-
ential, overpowering body of the creditors,
which it was not.

A jury having found, upon an issue, that a
letter of license executed under such circum-
stances was not a concluded binding agree-
ment, the Lord Chancellor refused to disturb
the verdict.—Jn re Semple, 3 Jon. & L. 488.
(C.)—[See In re Semple, 12 I. E. R. 338. (C.)]

6. A bankrupt is only privileged from arrest
when actually coming to surrender, under the
6 W. 4, c. 14, s. 136. Where the bankrupt
returned from Liverpool, on the 20th, to
surrender on the 24th, and was arrested on
the 23rd, the Court refused to discharge him.
—_Inre Wall, 12 I. E. R. 285; 11. Jur. 1. (C.)

[BANKRUPTCY.]

 

Allowances.

7. The Court of Bankruptcy will grant «
certificate to a bankrupt, although he may
have destroyed, mutilated, altered, or falsified
his books, prior to the committal of an act of
bankruptcy, who subsequently and immedi-
ately confesses the fraud, and passes his final
examination to the satisfaction of the Court,
by making a full disclosure of his affairs,
unless such mutilation, &c., be committed in
contemplation of bankruptcy, or with intent
to defeat the object of the Bankrupt Acts,
and with intent to defraud his creditors.—In
re Chapman & Bradford, 21. Jur. 220. (B).

8. Bankrupts, by false representations, ob-
tained credit and goods, for which they were
unable to pay. Their books appeared to have
been mutilated ; some of them were not pro-
duced. Their certificate was suspended for
one year. Observations on non-production
and mutilation of account-books, and general
rule as to misconduct.—Zn re Johnston, 91. C.
R. 559. (B.)

9. Two days after seizure made by an exe-
cution creditor, the trader filed a petition
under the arrangement clauses, for protection
from process, but did not inform the Court of
the seizure. The Court granted protection ;
and as sale is part of the process, ordered the
bailiff to he withdrawn, and a sale prevented,
upon au sufficient sum being lodged to meet
the creditor’s demand, if the arrangement
failed.—ZJn re R. D., 61. Jur. N. 8. 91. (B.)

10. A creditor obtained judgment and exe-
cution against a trader, who then petitioned,
under the arrangement clauses, for an ad
interim order for protection of his person and
property, but was not allowed to proceed with
the arrangement until he paid the creditor’s
costs.

In all cases in which an ad interim order for
protection is granted, the petitioner must,
within one week after, call a meeting of his
creditors, and submit to them a full and true
statement of his affairs—Re an Arranging
Trader, 6 I. Jur. N.S. 355. (B.)

 

VIM. 1. d. Jn other cases: generally.

11. An insolvent having parted with all his
estate, which became vested in the Provi-
sional Assignee, is not competent to sustain
a bill for an account of the amount due on
a judgment under which he has been arrested.
— Crotty v. C., 21. Jur. 161. (C.)

12. A trader, appearing to a summons issued
under 12 & 13 Vic. c. 107, s. 11, and making
a deposition that he has a good defence to
the “whole demand,” need not enter into a
bond with two sureties, &c., under the 13th
sec.—In re Comerford, 3 I. Jur. 309. (B.)

13. When a bankrupt’s books have been
improperly kept, the certificate will be sus-
pended. The Court has no power to refuse
the certificate if he passes the final examina-
tion.

Part of the duty of the Commissioners
Bankrupt's

under the former Acts still devolves on the
Judges of the Court of B. & L, so as to make
it their duty, independently of any opposition
by a creditor, to examine into the conduct of
a bankrupt, before granting a certificate-—Jn
re Lynch, 71. OC. R. 489. (B.)

1. The Court will not restrain the assignees
of a bankrupt from selling his property, upon
an offer of a composition above the amount
which the assets would realise, unless satis-
factory security is given that the offer will
be carried out. Where the trading of the
bankrupt has been unsatisfactory, or the
bankrupt has had sufficient time since the
bankruptcy to effect a composition, the Court
will not yield to an application to restrain
the assignees.—Jn re Walsh, 9 I. C. R. 16. (B.)

2. The omission from a schedule, after-
wards amended in reference thereto, of a
doubtful debt paid to a trader after certificate
obtained, will not per se be deemed evidence
of fraud.—Zn re Gray, 5 I. Jur. N. 8. 267. (B.)

3. A., a bankrupt, having become able to
pay in full, obtained an order of Court di-
recting that, upon paying the creditors 20s.
in the £1, and paying the assignee’s costs,
the carriage of the proceedings should be
transferred, and the estate re-assigned to
him. The creditors were paid in full. Owing
to the delay of the agent of the bankruptcy
in getting his costs taxed, A. was unable to
pay them, and get the carriage transferred,
and the estate re-assigned. Upon giving B.,
the Official Assignee, a letter indemnifying B.
and C., the Official and Trade Assignees, A.
got an authority from B. to take proceedings
in the name of B. and C. for the recovery of
debts due to the estate. A. having brought
an action in the names of B. and C., was
served by C. with notice to discontinue, on
the ground that he had no authority to use
C.’s name. The defendant in the action
took defence, and gave notice of motion to
set aside the summons and plaint on the
same ground. This Court having been ap-
plied to, while the motion in the Law
Court (C.P.) was pending, ordered that it
be not moved; that the action be pro-
ceeded with; and that C. should pay the costs
of this motion, and of the motion in the
C.P.—In re M‘Kenna, 111. C. R. 65. (B.)

4. Under the trader debtor sections of the
Irish Bankrupt Act the Court may inquire
into all the facts of the case, and not permit
the trader to make an affidavit of a good
defence on the merits. Under the sections of
the English statute the Court must receive
the affidavit.

When a trader bona fide believes that he
has a good defence on the merits, and there
may be a question for a jury, the Court will
permit him to make the affidavit, and will
not require him to enter into a bond.

Semble—Parties executing « deed may
abandon it when nothing has been done
under it.—Re Fivey, 6 I. Jur. N.S. 22. (B.)

’

[BANKRUPTCY.]

 

87

5. An insolvent attempted to account for
property disposed of immediately before his
insolvency, by alleging that he had paid a
creditor who had left the country; and swore
that he could give no other account. Instead
of dismissing his petition the Court remanded
him for the longest period allowed by law.
Re Smith, 71. Jur. N. §. 120. (B.)

6. A bankrupt stated and settled with his
partner an account which the Court of Ch.
decreed ought not to be re-opened. This
Court refused to sanction the continuance by
the bankrupt or his assignees of litigation by
way of appeal, with a view to go behind the
decision, since there could not be shown on
the face of the account manifest error undis-
covered during the Ch. proceedings, nor that
substantial benefit would result to the credi-
tors.

The Master in Ch. had been of opinion that
the account should be re-opened. Held, that
the bankrupt, who filed a bill for an account,
was not guilty of wanton litigation.

A trader, without his partner’s knowledge,
disposed of partnership property for his own
use. Held, that his certificate should be sus-
pended for eighteen months.—Re Sim, 7 I.
Jur. N. 8. 282. (B.)

7."An insolvent pleaded false pleas to an
action for the recovery of a debt, and brought
an unfounded cross-action. Both actions
were referred to arbitration ; and the creditor
recovered less than he sued for. Held, that
the ground of vexatious defence failed.

Though the insolvent was blameworthy in
bringing an unfounded action, yet on the final
hearing he was only remanded, under the dis-
cretionary clause, because both actions were
made the subject of one verdict.—Re M‘ Carthy,
8 I. Jur. N. §. 137. (B.)

‘ Examination.

8. An insolvent, before his discharge, en-
tered into a contract for a lease at a rent. No
creditors’ assignee was appointed. Held, that
he could not sue for specific performance of
the contract. The Court will not decree
specific performance of a contract for a lease
to an insolvent.

Quere—Whether a discharged insolvent can
sue for specific performance of a contract for
alease, after his assignee has elected to aban-
ie it ?—M ‘Nally v. Gradwell, 16 I. C. R. 512.

R.)

 

VII. 2. Bankrupt’s Examination.

9. Statute 8&9 Vic., c. 48 (abolishing oaths
in bankruptcy), does not extend to Ireland.

A committal for unsatisfactory answers is
sufficient, which states that the bankrupt was
“duly” sworn, though it states he was sworn
to answer “all” questions; and not, in the
words of the Act, to answer questions respect-
ing his trade, &c., and does not state that the
examination was taken in writing, or specify
what particular answers are unsatisfactory.
The warrant set out an examination, on the
face of it, proper, and answers which on the
88 Bankrupt’s

whole are “unsatisfactory,” and which for
this purpose need not be necessarily false—
In re Hickey, 10 1. E. R. 482. (C.)

1. Under the 12 & 18 Vic., c. 107, s. 56, the
Commissioners will close the examination of
a bankrupt and disqualify him from applying
for a certificate, if it appear to them that
there is any reason to doubt the truth or full-
ness of the discovery he has made of his deal-
a re Furlong § Shields, 2 1. Jur. 266.

B.)

2. A bankrupt, on examination before the
Commissioner, gave such unsatisfactory evi-
dence that his examination was adjourned
sine die. On petition, stating that his state of
mind while undergoing examination was such
as to impair his intellect; that he had not
wilfully omitted or concealed any evidence;
that he aided the assignee to make his estate
available; and, if allowed, would give such
explanations, and make such amendments in
the evidence, as would satisfy the Commis-
sioner, and cause him to close the bankrupt’s
final examination; the assignees not opposing,
the Lord Chancellor directed the re-examina-
tion to proceed.—Ex parte Wall, in re Wall, 3
I. Jur. 137. (B.)

8. Practice as to passing bankrupt’s final
examination when it has, in the first instance,
been adjourned sine die.—In re Dodd, 91. C.
R191. (B.)

4, The Court is not bound to pass the final
examination of a bankrupt, merely because he
has made a full disclosure of his affairs, if
there be fraudulent circumstances in his con-
duct, which, in the opinion of the Court, dis-
entitle him to his certificate.

Under the Irish Act, the time to consider
those circumstances is at the time for passing
the final examination ; it being impossible to
refuse the certificate after the final examina-
tion has been passed.

When a bankrupt had systematically issued
bills of exchange with fictitious names thereon,
the Court postponed the final examination
sine die—In re Keon, 101. C. R. 111; 51. Jur.
N.S. 107. (B.)

5, A trader petitioned under the arrange-
ment clauses; and upon untrue statements
obtained protection for person and property.
Pending the arrangement, he disposed of his
property, and kept no books. On adjourn-
ment into bankruptcy the final examination
was adjourned sine die, and protection refused.
Re Patrick Kelly, 71. Jur. N.S. 122. (B.)

6. An attorney was adjudicated bankrupt
as a bill broker. On coming up for final
examination it appeared that he had lost
large sums by betting. With a view to pre-
vent him obtaining his certificate, his exami-
nation was adjourned sine die—Re Parsons, 7
I. Jur. N.S. 206. (B.)

7. A trader, having engagements to meet
in England, started for London, with £1390

[BANKRUPTCY.]

 

Examination.

in gold, and £100 in notes, in a carpet bag.
He stated in his examination that the bag
was stolen, and on several occasions positively
stated that he could give no other account of
the loss.

In all other respects, his schedule was
accurately vouched, and his general conduct
satisfactory.

The Court, being dissatisfied with the ac-
count of the loss, and the conduct of the bank-
rupt in relation thereto, refused to pass his
final examination.—Jn re Coote, 12 I. C. R.
454; 71. Jur. N.5. 18. (B.)

8. A bankrupt traded recklessly; falsely
represented his affairs; and made fictitious
entries in his books, in order to bring out a
balance in hisfavour. On a fullinvestigation
by the assignee, it appeared that there had not
been any suppression or concealment. The
examination was passed, but the certificate
was suspended for three years. Cases of so
fraudulent a character may occur in which the
Court will not pass the examination, although
the bankrupt makes a full disclosure—Re
Digan § Hird, 8 I. Jur. N. §. 138. (B.)

9. Property was removed, but there was
evidence that it had all been replaced. The
creditors were unable to trace any other pro-
perty, or give evidence of its removal; but
a deficiency unaccounted for remained. It
was presumed that all the concealed property
had not been restored.

The Court cannot believe that a full dis-
closure has been made by a bankrupt whose
evidence is contradicted, and whose only ex-
planation is that he does not remember. The
examination was adjourned sine die, with
liberty to re-open it when the bankrupt could
make a better case, and satisfy the creditors
that all the property had been restored.—Re
Hennessy, 8 I. Jur. N. 8. 189. (B.)

10. A partnership business prospered up to
the dissolution, when one partner retired upon
being secured an annuity, of which no part
was ever paid, though he filed a bill to raise
the amount. Regular books having been dis-
continued, and the accounts kept on slips of
paper, itis to be inferred that the purpose was
fraudulent.

If a trader, to obtain forbearance and fresh
credit, submits fabricated accounts, and is
guilty of criminal acts, the Court isnot bound
to pass the examination, although he may
account fully. But when regular accounts
were not kept, and the entire accounts were
not satisfactory, it is evidence that a true
disclosure has not been made, and the ex-
amination will be adjourned sine die—Re
Lyster, 81. Jur. N.§. 176. (B.)

11. A bankrupt’s examination was adjourned
sine die, with a view to prevent him trading
again, and because from several patent errors
in his schedule it was to be inferred that he
had not made a true disclosure. He appealed ;
but, the fact of the errors was not brought
before the Court, which sent the case back to
Committal :

the Court below, upon the ground that it,
if the trader fully disclosed everything, was
bound, notwithstanding his misconduct to
pass his examination, and grant him a cer-
tificate at the end of three years.

The schedule was accordingly amended, and
the examination passed: grant of certificate
adjourned for three years.

Quere—Is a trader, who fully discloses
everything, entitled as of right to have his
examination passed, and to get his certificate
at the end of three years, notwithstanding
fraud and misconduct ?—Re Bourke, 8 I. Jur.
N. 8.199. (B.)

1. When the Court cannot believe the ac-
count given by a bankrupt and his friend, the
alleged custodians of a large sum belonging
to creditors, and when the account leads to
the inference of deliberate falsehood, the
Court will not direct a prosecution, though it
will adjourn the examination sine die.

Partners took little or no part in the
business, and knew nothing of the accounts.
Their examination was passed, but their cer-
tificates were suspended.— Re M‘ Carthy & Co.,
81. Jur. N.8.178. (B.)

2. If a bankrupt makes a full disclosure,
but has been guilty of reckless trading, of
forgery and of fraud upon his general creditors,
the Court is not bound to pass the final ex-
amination, which would entitle him to his
certificate at the end of three years at the
farthest. Under the 140th sec., the Court
has perfect jurisdiction, in any state of facts,
to adjourn the examination sine die.

The Court will not order a prosecution
against a bankrupt, the only criminatory evi-
dence against whom has been obtained from
his own admissions when under examination.—
Re M'Iiroy, 81. Jur. N.S. 218. (B.)

3. When a bankrupt is charged with for-
gery, and with making false entries in his
books, and obtaining credit by false represen-
tations, his examination will be adjourned
sine die ; and although the documents alleged
to have been forgeries have been destroyed,
and none of them are forthcoming, a prose-
cution for forgery will be directed, as well as
a prosecution for frauds against the bank-
ruptcy law.— Re M‘Nevin, 9 I. Jur. N. 8. 197.

B.)

4. The Court of Bankruptcy has no juris-
diction to make a certificate from the credi-
tors of the bankrupt, a condition precedent
to passing the final examination.

Semble—The Court has no power to adjourn
the final examination of the bankrupt sine die
for any misconduct of the bankrupt, if his
disclosures be full and true.—Jn re Burke, 14
I. C. RB. 107. (C.A.) .

5. When a mercantile house in extensive
business keeps books accurately, and is, there-
fore, aware every year of its real condition,
which shows a rapidly increasing state of
insolvency, and accumulating debts, such
accurate accounts strengthen the charge of
reckless trading.

[BANKRUPTCY]

 

Warrant of. 89

Ina mercantile point of view it is highly
criminal to go on trading and drawing accom-
modation bills when the trader knows that he
is in a state of insolvency, and that his diffi-
culties are increasing every year. The enor-
mity of the offence is increased when the tra-
der so circumstanced permits a member of
another firm to accept bills in their names,
without the knowledge or consent of his part-
ners, such bills being for the accommodation
of the insolvent trader, even though some
slight accommodation was gained by the sol-
vent firm.

A trader’s books had been accurately kept
and he had accounted fairly, and vouched his
schedule ; but he had traded recklessly and
carried on a system of manufacturing accom-
modation bills. ‘The Court adjourned the
examination sine die.—Re Asken Morrison, 10
I. Jur. N.S. 197. (B).

 

VIII. 3. Committal of Bankrupt:
Committal.

6. Statute 8 & 9 Vic, c, 48 (abolishing
oaths in bankruptcy), does not extend to
Ireland.

A committal for unsatisfactory answers is
sufficient, which states that the bankrupt was
“duly” sworn, though it is to answer “all”
questions, and not limited in the words of the
Act to questions respecting his trade, &c.,
and does not state that the examination was
taken in writing, or specify what particular
answers are unsatisfactory; the warrant set-
ting out an examination, on the face of it,
proper, and answers which on the whole are
“unsatisfactory,” and which for this purpose
need not be necessarily false—ZIn re Hickey,
101. E. R. 482. (C.)

7. The 12 & 18 Vic. c. 107, s. 49, which
directs that, “in any warrant of committal of
any person by the said Commissioners for re-
fusing to answer any question,” &c., instead of
setting out in the warrant the questions put
to the bankrupt and his answers, a reference
should be made to the examinations or depo-
sitions on the files of the Court, extends to
cases in which the bankrupt had been ex-
amined before the Act passed—zx parte
Clarke, 31. Jur. 83. (B).

Warrant of

8. A bankrupt committed for unsatisfac-
toty answering, will be discharged from cus-
tody, if not furnished with copies of his
depositions within 24 hours after committal.
No matter how improbable the story of a
bankrupt may be; or how immoral or guilty
his conduct; if he is corroborated by wit-
nesses to such an extent as to lead the Court
to believe that his account may be true, he
will not be committed for unsatisfactory an-
swering.—Re Murphy, 5 I. Jur. N.S. 219. (B.)

9. An insolvent lived extravagantly ; went
on contracting debts which he was unable to
pay; and put in sham defences to the just
claims of creditors; remanded for twelve
months, although there was not any evidence
of concealment, or that the property had

12
90

Surrender.

been otherwise made away with—Re Barry,
61. Jur. N. 8. 357. (B.)

1. Although it is a bankrupt’s bona fide in-
tention to show cause, on the ground that he
has not committed any act of bankruptcy,
against his adjudication; and has taken the
necessary proceedings to do so, he may,
nevertheless, be committed for unsatisfactory
answering, and for not giving up money in
his possession, before the validity of the ad-
judication is decided.—In re a Disputed Adju-
dication, 111. Jur. N. §. 824. (B.)

 

VII. 4. Bankrupt’s Surrender.

2. Application by bankrupt, after an ab-
sence of eight years in America, for liberty
to surrender himself to the commission, and
pass his final examination, refused: the peti-
tioner not having used due diligence since his
return, in communicating with his assignee,
or seeking personal interviews with his cre-
ditors—Ex parte Wyse, 31. E.R. 361. (C.)

3. A bankrupt left Ireland, taking money
wherewith he settled with creditors who re-
leased him, and having returned sought to
have the commission superseded.

The application was refused until the
bankrupt would surrender, and this at his
cost.—Ln re Reynolds, 2 I. Jur. 185. (C.)

4. A bankrupt returning from London to
Dublin, learned at Liverpool that a commis-
sion had issued against him. He proceeded
to Dublin to surrender on the 21st of March;
but finding that he was not bound to do so
until the 24th, deferred it until the latter
day. Meantime he was arrested. Held, not
entitled to a discharge under the 6 W. 4, c.
14, s. 186, as being on his way to surrender.

The ;fact that a commission of bankruptcy
was issued for an indirect and improper ob-
ject is not a ground for superseding it, if that
was not the sole object.—Jn re Wall, 12 I. E.
R. 285. (C.)

 

IX. SURPLUS GENERALLY: WHEN INTEREST IS
PAYABLE ON.

 

IX.* Official Assignees.

5. A. became bankrupt in 1839. An assig-
nee was appointed, but the certificate was
never granted. In 1843 a report in a cause
found sums due to the bankrupt. In April
1858, he assigned his interest in those sums to
B., who had not notice of his bankruptcy. In
May 1853, the sum was allocated toA. Ona
motion by the Official Assignee, that money
was directed to be transferred to him, not-
withstanding the assignment. On the cross
motion by B., no rule was pronounced—
Waller vy. Wildridge, 61. Jur. 228. (R.)

 

X. AssIGNEES IN BANKRUPTCY.

1. Choice of: removal of.
2. Conveyance to. ah
8. Ther Powers, Duties, Liabilities, Sc.

[BANKRUPTCY]

 

Assignees.

Their Custody, §c., of Proceedings.
Appointment of Receiver by, Se.
Assignees’ general Rights and Powers.
. Their Personal Rights and Powers.

. Their general Liabilities.

Their Personal Liabilities.

Assignee’s Liability jor acts of Co-
assignee.

. Assignees’ Accounts,

When the Court will interfere with their
private arrangements respecting the
disposition of the estate, or will con-
trol their discretionary power.

. Liberty to Assignees to bid; respecting

their purchases of’ the estate.

. When the Assignee is also Mortgagee.

When the Assignees are entitled to an
Indemnity.

mo Be ofS

rp og

rps

 

. Twenty per cent. Clause :—Assignees’ Lia-
bility for Interest in cases before the 49
G. 3, c. 121.
4, Investment Generally.
5. Solicitor to Commission.
a. In general; his Rights, Duties, Powers,
and Liabilities.
b. His Bill of Costs: Taxation of, fe,

Sale of Property and Effects of.

a. Generally: respecting Opening Bid-
dings.

b. Mode of Sale: respecting Reserved
Biddings.

c. Respecting Mortgages, §c.

Removal of Assignees.

. Assignees: Absconding, Retiring, or be-
coming Bankrupt.

Actions and Suits by and against Assig-
nees. ;

a. Evidence therein.

b. Generally.

=

2s

s

 

X. 1. Choice of: Removal of.

6. Under the 12 & 18 Vic., c. 107, s. 77, the
Court will grant a meeting to consider the
propriety of removing the creditor’s assignee,
and of appointing another in his place, though
no charge of misconduct is made against him,
if it appears that he has gone to reside per-
manently out of Ireland.—ZJn re Handy, 2 I.
Jur. 245. (B.)

 

X. 2. Conveyance to.

7. Queere—On the death of the creditors’ as-
signee, does the estate, which was vested in
him, vest, without any further conveyance, in
the new assignee ?—Atkinson v. Lennon, 5 I.
Jur. 369. (C.)

 

X. 3. TaEir Powers, Duties, LiaBixiriEs,
&e.

. Their Custody, §c. of Proceedings.

. Appointment of Receiver by, Fe.

. Assignees’ general Rights and Powers.

Their personal Rights and Powers.

. Their general Liabilities.

. Their personal Liabilities.

. Assignees’ Liability for acts of Co-
assignee.

mo BoD
Assignees’

h, Assignees’ Accounts.

i. When the Court will interfere with
their private arrangements respecting
disposing of the estate, or control their
discretion.

j. Liberty to them to bid: their purchases
of the estate.

k. When Assignee is also Mortgagee.

1. When they are entitled to an Indemnity.

m. Twenty per cent. Clause: their liability
for Interest before the 49 G. 3, c.
121.

 

X. 3. Their Powers, Duties, Liabilities, Sc.

 

X. 3..a. Their Custody, §c., of Proceedings.

 

X. 3. b. Appointment of Receiver by, Sc.
X. 3. c. Assignees’ general Rights and Powers.

1. The provisional assignee of an insolvent
defendant is not entitled to a fee for counsel
to approve of a deed which the assignee is
called upon to execute under a decree.—
Wallace v. Macan, Fl. & K. 554. (R.)

s

2. When a mortgagee has filed a foreclo-
sure bill against a bankrupt mortgagor, the
duty of the assignee is to apply to the Court
to stay the proceedings in the suit, and for the
mortgagee to come in and sell under the G. O.
in bankruptcy of 1832.—Bernard v. Sadlier,
41. E.R. 61. (E.E.)

3. Semble—When a judgment debtor be-
comes bankrupt, the money due on foot of the
judgment is not “ money secured by judgment”
within the meaning of the I. E. Act. There-
fore, when a petition is presented, even by the
assignee of the bankrupt under the I. E. Act,
the Commissioners will dismiss it—Jn re Law-
der, 31. Jur. 385. (1.E.C.)

4, Shares in a Railway Company were stand-
ing in the name of a bankrupt at the time of
his bankruptcy, on the 13th of November
1847. A large sum was then due on the shares
for calls, which the company proved for in the
bankruptcy in July 1849, and received a divi-
dend, the assignees not requiring the shares
to be brought in, and the secretary of the
company expressly stating that they had no
security for the calls. Subsequent calls were
made, the shares still remaining in the bank-
rupt’s name. In July 1852, the company
served a notice on the bankrupt, that the
shares would be forfeited, and accordingly the
shares were declared forfeited, at a meeting
of the directors. In May 1853, the assignees
tendered the amount of the calls which fell
due after the fiat. Held, on a petition filed
by the assignees against the company, that
the assignees might, when the company proved
for the calls, have had the transmission of the
shares authenticated to them under the 8 Vic.,
c. 16, s. 18 (Companies Clauses Consolidation
Act, 1845), and have had them sold for the
benefit of the bankrupt’s estate.

But that the assignees not having then ac-
cepted the shares, they continued the property

[BANKRUPTCY.]

 

Rights, Sc. 91

of the bankrupt, and had been forfeited for
non-payment of the calls.

Semble—The proof under the bankruptcy
was not equivalent to payment of the calls,
so as to satisfy the provisions of the statute,
which makes the payment of the calls a con-
dition precedent to the right to transfer the
shares.—Turner v. D. § B. Junction Ry. Co.
81. C.R. 526; 61 Jur. 225. (C.)

5. A., one of two bankrupt partners, after
the bankruptcy, made in a Chancery suit an
affidavit, in which he admitted a debt, barred
by the Statute of Limitations, to be due from
him to F. The debt had been originally that
of A.’s former partner, G., whose executors
instituted the suit. A. was so ill when he
made the affidavit, that he was unable either
to read or sign it. The British Consul at B.
read it over to him; whereupon he affixed his
mark.—Held, that the affidavit was not admis-
sible in evidence in the bankruptcy pro-
ceedings. That, supposing it admissible, the
circumstances under which it was made, and
the object of making it deducible from circum-
stances, were sufficient to avoid it. That,
taking the acknowledgment in the affidavit
to be equivalent, under the circumstances, to
an admission in a bankrupt’s schedule, such
an admission does not take a debt out of the
statute as against the bankrupt’s assignees.
The assignees in bankruptcy, being trustees
for the general body of the creditors, are
bound to set up the bar of the statute against
an individual creditor.—[ Barrett v. Berming-
ham, 4 I. BE. R. 587, distinguished.]—In re
Clendenning, 9 I. C. R. 284. (B.)

6. When property is sold under a fi. fu.,
with notice to the execution creditor of an
act of bankruptcy committed by the debtor,
the assignees are entitled to damages, besides
the produce of the sale. The execution cre-
ditor must pay the damages, together with
costs, of which the Sheriff must bear a por-
tion— Re Nolan, 61. Jur. N. 8.71. (B.)

7. After a protection granted by the Bank-
rupt Court to the person and property of a
trader, and pending a settlement under the
arrangement clauses, a creditor obtained a
judgment against the bankrupt—registered it
as a mortgage against his lands, and obtained
an absolute order for sale in the L. E. Court.
Held, that this order was erroneous, as the
estate was in the Official Assignees.—In re
Kennedy's Estate, 171. C. R. 104. (C.A.)

8. When the assignees of a bankrupt dis-
pute the right of lien, and a doubt exists on
the subject, the Court will not make an order
to give up the property, but leave them to
establish their rights by law, if so advised. —
Re Murray, 91. Jur, N. 8.98. (B.)

9. When goods are shipped for conveyance
to a port, for an agreed freight, and bills of
lading are signed, if the shippers become sub-
sequently bankrupt, their assignees cannot,
before the sailing of the ship, insist upon re-
delivery of the goods, without paying the
92

freight which would be due at the port of
destination, and indemnifying the master
against any claim respecting the bills of
lading.

The messenger’s possession of such goods
acquired under the Court’s search-warrant, in

Assignees’

[BANKRUPTCY.]

Liabilities.

bankrupt’s property. He must re-sell all of
it for the benefit of the estate, if the credi-
tors believe it worth more than the sum paid
for it. :
The duties and_ liabilities of assignees
pointed out.—Re Walsh, 6 I. Jur. N. 8. 297.

no way changes the onus of proof, or entitles | (B.)

the assignees to cast upon the master, to
whom the Court has re-delivered the goods,
the duty of impeaching the title of the hold-
ers of the bills of lading at the port of desti-
nation.

Quere—Has the Court jurisdiction to issue
a search-warrant respecting goods on the pre-
mises of a third party in England ?—Jn re
C. Webster, 10 I. Jur. N.8.17. (B.)

1. Assignees will not be allowed to. stand
instead of a mortgagee, as specific creditors,
in respect of sums advanced to pay off the
oe Curran, 10 I. Jur, N.S. 59.

B.)

X. 3. d. Their Personal Rights and Powers.

 

 

X. 3. e. Their general Lnabilities.

2. A tenant for life, A., with power to
lease, conveyed his estate for a term of years,
to secure annuities, and covenanted with the
annuitant, B., to lease the lands as he should
direct. A. became insolvent; his estate
vested in the provisional assignee, C. <A. and
B. joined in granting a new lease, which the
Court considered would be beneficial to the
creditors.— Held, that C. was bound to do all
acts necessary to give effect to the lease, as
he took the estate bound by A.’s covenants.
—Dyas v. Cruise, 8 I. E. R. 407. (C.)

3. Mortgaged premises being insufficient to
pay the debt, on the assignees submitting,
they were ordered to convey the equity of
redemption to the mortgagee, in considera-
tion of obtaining a release from the debts.—
Ex parte Dickson, In re Vogan, 1 I. Jur. 250.
(C.)

 

X. 8. £. Assignee’s Personal Liabilities.

4. Assignee not chargeable with penal in-
terest for the detention in his hands of
moneys of the estate, if direction was not
given under the 49 G. 3, c. 121, ss. 3, 4, and
under the 6 W. 4, c. 14, s. 122, by the cre-
ditor or Commissioner, to lodge such moneys
in bank.—ZIn re Fahy, 31. E. R. 585. (C.)

5. A bankrupt returned, as portion of his
assets, « policy of insurance for £1000 on his
debtor’s life, which was advertised for sale,
and sold for £30 to J. The assignee asked J.
to let him share in the purchase, or to pur-
chase one-half of the policy, which J. sold
him. In afew months the life dropped, when
the full amount of the policy was paid to J.
and the assignee—Held, that the assignee
should refund, for the benefit of the estate,
his portion of the proceeds.

The assignee also purchased, in the name
of the bankrupt’s son, other portions of the

 

6. An assignee filed an account, and for
twenty years never proceeded to vouch it; but
meantime undertook to demise the insolvent’s
real estate to his own son, and then sold the
property in the L. E. Court subject to the
lease, which was thereby confirmed. The
Court compelled him to file a new account,
and to vouch it as well as the old one.

The Court, notwithstanding the L. E.
Court’s confirmation, charged the assignee with
the letting value of the lands during the whole
term of the lease; and directed him to lodge
that amount in Court, with interest at £5
per cent.

He was disallowed his poundage and ex-
penses, and ordered to pay the creditor’s costs
of making the application against him.—Re
Comyn, 7 I. Jur. 226. (B.)

 

X. 3. g. Assignee’s Liability for Acts of Co-

assignee.

 

X. 3. h. Assignee’s Accounts.

 

X. 3. i. When the Court will interfere with As-
signee’s private arrangements es
the disposition of the estate; or wi
control their discretionary power.

7. The Court will not restrain the assignees
of a bankrupt from selling his property, upon
an offer of a composition above the amount
which the assets would realise, unless satis-
factory security is given that the offer will be
carried out. When the trading of the bankrupt
has been unsatisfactory, or the bankrupt has
had sufficient time, since the bankruptcy, to
effect a composition, the Court will not yield
to an application to restrain the assignee.
In re Wa A, 91. C. R.16. (B.)

 

X. 3. j. Leave to Assignees to bid: their Pur-
chases of the bankrupt’s estate.

8. When the assignee of an insolvent pur-
chases, at an undervalue, an incumbrance
on the insolvent’s real estate, the benefit of
the purchase shall enure to the scheduled
creditors in the insolvency matter.

A. seized in fee of certain lands, pre-
sented his petition in the Insolvent Court. B.
was appointed his assignee, and entered into
receipt of the rents and profits.

The estate was subject to recognizances
and other incumbrances, the first charge being
an annuity payable to C. B., while assignee,
made an advantageous bargain with C.,
whereby he purchased her annuity, together
with arrears, amounting to £1100, in consider-
ation of a considerably smaller annuity and a
sum of £400. The lands were subsequently
sold in the I. E. Court.
Assignees.

Held, that B. was entitled to be placed on
the final schedule as an incumbrancer, to the
full amount of the arrears, subject to an
account: the benefit of his purchase over and
above what he had actually paid, to enure to
the benefit of the credit of the scheduled
creditors in the insolvency matter.

(Hargreave, C. dubitante), that the pur-
chase ought to be regarded as the compromise
of a claim enuring for the benefit of all
parties interested in the lands, according to
their priorities—Jn re Browne’s Estate, 7 I. C.
R. 274. (LE.C.)

 

X.3.k. When the Assignee is also Mortgagee.

 

X. 3.1. When the Assignees are entitled to an
indemnity: their duty upon receiv-
ing it.

1, A., a bankrupt, having become able to
pay in full, obtained an order of the Court
directing that, upon paying the creditors 20s.
in the £1, and paying the assignee’s costs, the
carriage of the proceedings should be trans-
ferred, and the estate re-assigned to him.
The creditors were paid in full. Owing to the
delay of the agent of the bankruptcy in
getting his costs taxed, A. was unable to pay
them, and get the carriage of proceedings
transferred, and the estate re-assigned. Upon
giving B. a letter indemnifying B. and C., the
Official and Trade Assignees, A. got an
authority from B. to take proceedings in the
names of B. and C. for the recovery of debts
due to the estate. A. brought an action in
the names of B. and C. C. served A. with
notice to discontinue, on the ground that he
had no authority to use C.’s name. The
defendant in the action took defence, and
gave notice of motion to set aside the sum-
mons and plaint, on the same ground.

This Court, having been applied to,
while the motion in the Law Court (C. P.)
was pending, ordered that said motion be not
moved; that the action be proceeded with;
and that C. should pay the costs of this
motion, and of the motion in C. P.—Jn re
M'‘Kenna, 111. C. R. 65. (B.)

 

“X. 3. m. Twenty per cent. clause: Assignees’ lia-
bility for interest in cases before the
49 G. 3, ¢. 121.

2. Assignee not chargeable with penal inter-
est for the detention in his hands of moneys
of the estate, if direction, under the 49 G. 3,
c. 121, ss. 3,4; and 6 W.4, c. 14,5. 122, was
not given by the creditor or Commissioner to
lodge such moneys in bank.—Jn re Fahy, 8
I. E. R. 585. (C.)

 

X. 4, Investment, generally.

X..5. Solicitor to Commission.
a. In general: his Rights, Duties, Powers,
and Liabilities.
b. His Bill of Costs: its Taxation, &c.

X. 6. Sale of property and effects.

[BANKRUPTCY.]

 

Actions, &c., by. 93

a. Generally: Opening Biddings.
b. Mode of Sale: Reserved Biddings.
c. Respecting Mortgages, &c.

3. Special order made respecting the sale
of mortgaged property, the subject of a suit
in which the mortgage was impeached; the
mortgagee desiring to bid at the sale—Zn re
Semple, 12 I. E. R. 838. (C.)—[See In re Sem-
ple, 3 Jon. & L. 488. (C.) ]

 

X. 7. Removal of Assignees.

 

X. 8. Assignees ; Absconding, Retiring, or
becoming Bankrupt.

 

X. 9, Actions and Suits by and against Assignees.
a. Evidence therein.
b. Generally.

 

X. 9. b. Generally.

4. An attorney filed a bill in the name of
an insolvent’s assignee, and obtained a decree
to account. The nominal plaintiff then ap-
plied to have the bill taken off the file, because
the attorney had used his name without his
knowledge or consent. At the bar he only
asked to be indemnified against costs; the
suit being for the estate’s benefit. Application
refused, with costs.—Bell v. Dawson, H. & J.
801. (E.E.)

5. When a judgment is not tainted with
fraud, the assignee cannot rely on a mere de-
fence at law, which the bankrupt hadneglected
to make. The consideration for the judgment
is always subject to investigation —Jn re Jen-
nings, 11. C.R. 236. (B.)

6. An insolvent mortgagor’s assignee filed
a bill for an account, and to redeem # mort-
gage. Two cause petitions for the same pur-
pose were afterwards filed, and dismissed with
costs. A newassignee having been appointed,
he moved under the Bankruptcy and Insol-
vency Act to be substituted by suggestion as
plaintiff. Held, affirming the Rolls order, that
the costs of the dismissed petitions must be
paid before the suggestion could be entered.—
MM'Conkey v. Gwynne, 101. C. R. 261. (C.A.)

 

XI. AssicnmenT on Vestine ORDER, AND
WHAT PASSES BY.

. Generally: what passes.

. Property acquiredafter Commisstonissued,

but before grant of Certificate.

Stock.

. Leases, Agreements, §c. ; Assignees’ elec-

tion to take.

. Short and Cross Bills of Exchange.

. Property previously assigned fraudulently ;
how far such conveyances affect cre-
ditors’ rights.

- Reputed Ownership: Order and Disposi-
tron.

8. Wife’s Property.

a. Wife's Equity for Settlement.

b. Provision for Wife.

oo He OO Doe

“nN
94 Assignment,

XI. Assignment or VesTING ORDER.
1. What it passes : generally.

1. A., a trader was local agent in Ireland
of a Scotch Insurance Company, having their
principal place of business in Edinburgh, and
having in Dublin an agent for all Ireland,
who appointed the local agents throughout
Ireland, and with whom they communicated.
A. effected upon his life an insurance with
the company, and assigned it to a bank to
secure a debt due by him. The agent of the
bank formally required A. to take notice, as
agent, of the assignment. A. replied that he
would, and that a written notice was not
necessary. No further notice of the assign-
ment was given to the Insurance Company.
A., becoming bankrupt, died. Nothing on the
face of the policy showed where or through
whom it had been effected. Held, that in the
absence of anything to show that the insurance
was a local transaction, the notice of the
assignment was not sufficient, and that A.’s
assignee was entitled to the money.

Semble—Even if it were a local transaction,
the notice to A., as agent of the Insurance
Company, would still have been insufficient,
since A. was himself the assignor.—In re Hen-
nessy, 5 I. E.R. 259; 2 Dr. & War. 555; 1
Con. & L. 559. (C.)

2. An annuity, granted to trustees to be
paid by them to a third person, at such times
and in such manner as they should think most
beneficial for him, upon his own receipt only,
without power to him to dispose of it, with a
gift over in the event of his doing so, will,
upon his insolvency, pass to his assignee.—
Irwin y. 1,81. E.R. 9. (R.)

8. A mere question of title between an
author and a bankrupt publisher, as to which
is owner of a portion of a copyright, cannot
be decided in the bankruptcy matter. But
Semble, where an author allowed the publisher
to advertise himself as the owner of the copy-
right, though it had never been assigned in
writing to him, it should be dealt with as the
publisher’s property, in _bankruptey.—IJn re
Curry, 12 1. E. R. 382. (B.)

4, A. became bankrupt in 1839. An as-
signee was appointed, but the certificate was
never granted.

In 1848 there was a report in a cause, find-
ing certain sums due to A. In April 1853,
he assigned his interest in the sum so re-
ported due to him, to B., who had no notice
of A.’s bankruptcy. In May 1853, the sum
was allocated to A. On a motion by the
Official Assignee, the sum so reported was
directed to be transferred to him, notwith-
standing the assignment. On the cross-motion
by B. “no rule” was pronounced.— Waller v.
Wildridge, 61. Jur. 228. (R.)

5. W. C. being entitled to an annuity, and
to a certain fund in reversion, assigned them
on his first marriage, to trustees, in trust to
pay the annuity to W. C. for life, or until he
should become bankrupt or insolvent, and

[BANKRUPTCY.]

 

What it passes.

from the time of his death, or his so becoming
bankrupt or insolvent, upon trust in favour of
the wife and the issue of the marriage. Upon
his second marriage, W. C. assigned to trustees
another fund, to which he was entitled after
the death of A., in trust for himself for life,
or until he should fail in circumstances, or
become bankrupt or insolvent; and after his
decease, bankruptcy, or insolvency, to pay the
principal sum among his two children of the
first marriage, and the issue of the second
marriage, as he should appoint, &c. Held,
that the insolvency in the settlement on W.
C.’s first marriage on which the limitation
over was to take effect, was an inability to
pay his debts, and not taking the benefit of the
Insolvent Act.

Held also, on appeal, that the limitations in
a settlement of the settlor’s property to himself
for life, or until he shall become insolvent,
with a provision that it shall go over on his
insolvency, is not valid—Zn re Casey’s Trusts,
381.C.R.419. (R.)—On appeal, reversing the
decision below on the second point, 4 1. C. R.
247. (C.)

6. M., tenant for lives renewable for ever,
of a flax-mill, erected in connection with it a
steam-engine, boiler, shafting, and gearing.
The boiler could not have been removed with-
out substantial injury to the structure and the
boiler-house. The steam-engine was attached
to the boiler by screws and nuts, and was
attached to the engine-house by various sup-
ports—all of which were capable of being
removed without material injury to the struc-
ture of the engine-house or to the engine.
The shafting and gearing could also have been
soremoved. The engine-house was constructed
to contain a steam-engine, and was not suited
for any other purpose. The steam-engine,
shafting, and gearing were all fixtures, remove-
able as between landlord and tenant. M.
mortgaged the flax-mill, together with the
steam-engine, boiler, shafting, and gearing,
and other machinery. After the mortgage,
M. remained in possession of the flax-mill and
machinery, and while in possession became
bankrupt. Held, that the steam-engine, shaft-
ing, and gearing, were not chattels in the
order and disposition of the bankrupt.—ZJn re
M‘Kibbin, 41. C. R. 520; 71. Jur. 342. (C.)

7. A., being indebted to B. in £100, gave
him an unstamped order for payment, upon C.,
who owed A. £300. The order was in the
following form :—‘ You will please hand B.
the sum of £102 sterling, and charge the same
to the debit of my account with you.” Onthe
day that the above order was given, B. wrote
to C. inclosing a copy thereof. Held, that the
instrument did not amount to an equitable
assignment pro tanto of the sum in the hands
of C.

To constitute an equitable assignment of
money in the hands of a third party, there
must be a particular existing fund dealt with
at the time, and there must also be a specific
appropriation intended of the whole or part
of such particular fund.—JIn re Farrell, 10 I.
C. BR. 305. (B.)
Assignment,

1. Goods, for which a bill was passed, were
sold; and a memorandum given to the pur-
chaser that they were to be kept to his order
subject to the amount of the bill. They were
in the vendor’s possession when the vendee
became bankrupt. The vendee’s assignee ap-
plied to get them for the general creditors,
leaving the vendor to prove for his debt.
Held, that the vendor was entitled to retain
them.—Re Gilbert, 71. Jur. N.8. 121. (B.)

2. The adjudication in Ireland, by the ope-
ration of the 20 & 21 Vic., c. 60, s. 267, vests
the property of the bankrupt situate in a
Foreign State in the assignees, so far as the
law of this country is concerned.

Remarks on the status of Assignees in this
Court as recognised by Foreign Law.—In re
Robinson, 111. C. R. 385; 6 I. Jur. N.S. 42.

(B.)

8. The 11 & 12 Vic., c. 122, s. 4, refers only
to contracts to be recognised by the excise,
as enabling parties to deal with whiskey in
bond.

When a third party purchases bonded whis-
key from a trader, who afterwards becomes
bankrupt, and who acquired his title by lodg-
ment of delivery orders; and the third party
does all he can to get possession before bank-
ruptcy, his title will prevail against the as-
signees.—Re T. Hughes, 7 I. Jur. N. 8. 336.
B.)

4. C., being seized of freehold estates, be-
came an insolvent, and executed an assign-
ment of all his property to the Official As-
signee. The assignment was not registered ;
nor did the Official Assignee enter into pos-
session of the freehold estates. The Com-
missioners of Public Works afterwards ad-
vanced several loans to C., to be laid out in
improving his estates. Held, that C. was an
owner within the 10 Vic. c. 32, and that the
loans were valid charges on the lands.—Jn re
Fitegerald’s Estate, 121. C.R. 81. (L.E.C.)

5. The L. E. Court made an absolute order
to sell leasehold premises on a petition pre-
sented by a judgment mortgagee, who had
registered the judgment as a mortgage, at a
time when the estate, of which the premises
formed a part, was in possession of the Official
Assignees, and under the protection of the
Court of Ch. Held, that the order for sale
should be set aside.—In re Kennedy’s Estate,
101. Jur. N. 8.218. (C.A.)

 

XI. 2. Property acquired after Commission issued,
but before grant of Certificate.

6. In April 1854, A. was discharged as an
insolvent, and M. was appointed assignee.
M. died in Dec. 1857, and W. was appointed
as assignee in M.’s place. Neither: of these
assignees entered up judgment on the war-
rant of attorney given by A. on his discharge.
In Dec. 1854, A. effected on his life an in-
surance, which he mortgaged to B. for £60.
In April 1856, A. again presented his peti-
tion and was discharged. There being no

[BANKRUPTCY.]

 

What it passes. 95

assets, there was no assignee appointed under
the second insolvency. In Nov. 1856 A. died.
The Insurance Co. paid the mortgagee his
debt and costs; and the residue of the policy
to W., the assignee. Only two premiums
became due on the policy: the first was paid
by the insolvent, and the second by the mort-
gagee. No notice of either insolvency had
been given to the Insurance Co. until after
the death of the insolvent. The sum in Court
(the residue of the policy) was claimed by
three parties: 1st the next of kin of the in-
solvent; 2nd by the assignee under the Ist
insolvency ; and 3rdly, by the creditors under
the second insolvency. Held, first, that the
amount of the policy was not future-acquired
property. Sccondly; that there had been no
abandonment or laches by the assignee.
Thirdly ; that the fund passed to the assignee.
Fourthly; that the amount of the premium
paid by the insolvent should be deducted
from the fund, and applied as a dividend
under the second insolvency.—In re Arm-
strong, 8 I. C. R. 309. (B.)

XI. 3. Stock.

 

 

XI. 4, Leases, Agreements, &c.; Assignees’ elec-
tion to take.

7. The 20 & 21 Vic., c. 60, s. 268, does
not, before election by the assignees, vest in
them the bankrupt’s lease, so as to make
them, though in possession, liable to its cove-
nants and conditions. Sec. 271, regulating
the bankrupt’s liability, recognises the obliga-
ba of the assignees, and protects the land-
ord.

The 23 & 24 Vic., c. 154, ss. 14, 15, does not
apply.—Re Ellis, 101. Jur., N.S.19. (B.)

8. A Railway Co. proved for calls on a
bankrupt’s estate. The assignees in bank-
ruptcy did not then accept the shares. Fur-
ther calls were subsequently made, and notice
thereof given to the bankrupt, but were not
paid. Held, as against the assignees in bank-
ruptcy, that the shares had continued the
property of the bankrupt, and had been for-
feited for non-payment of the calls— Turner
v. D. §& B. Junction Railway Co., 3 I. C. RB.
526; 61. Jur. 225. (C.)

9. When the assignees elect not to take an
interest held by the bankrupt, although he
has obtained his certificate, the Court will
order him to give up possession to the land-
lord, _and thus prevent the necessity of
bringing an ejectment on the title—Re Lam-
bert, 111. Jur., N.S. 325. (B.)

 

XI. 5. Short and Cross Bills of Exchange.

IO. B., a customer of the bankrupt, in the
ordinary course of business, gave him a bill
for £200, which was sent to his bankers, but
by mistake was not docketted with other
bills then sent in, and was supposed to be
lost. In lieu of it B. gave another bill, which
the bank placed to the bankrupt’s credit. B.
had to pay both bills. B. also gave him other
bills. The proceeds of all the bills became
96

part of the bankrupt’s estate. Held, that the
proceeds of the two first bills did not pass to
the assignees, and that B. was entitled to be
paid their amount out of the estate, but that
the same rule did not apply to B.’s claim on
foot of the other bills—Re Hall, 8 I. Jur.,
N.S .256. (B.)

Fraudulent

 

XI. 6. Property previously assigned fraudulently :
how fur such conveyances affect creditor’s
rights.

1. H., a trader and the local agent of an In-
surance Company, whose head office was in
Dublin, effected two policies with the company
upon his own life, and assigned them to a
banking firm to which he was indebted. At
the time of the assignments respectively a
formal notice of the fact was given to him as
agent of the company. He became bankrupt
and died. Held, as between the banking firm
and the bankruptcy assignee, that the notice
was insufficient, the transaction being a Dub-
lin one, there being nothing on the face of the
policies to show that they were effected at the
place where H. was agent. When the assignor
is agent, notice to him will not be sufficient.—
In re Hennessy, 51. E.R. 259 ; 2 Dr. & War.
555 ; 1 Con. & L. 559. (C.)

2. In order to constitute a fraudulent pre-
ference, it is not sufficient that a payment or
security was voluntary, and made at a time
when the trader was in insolvent circum-
stances. It is necessary to show that it was
made in contemplation of bankruptcy.

A judgment obtained against a bankrupt,
and registered as a mortgage, under the 13 &
14 Vic., c. 29, ss, 6, 7, before the issuing of the
commission, is a charge on the bankrupt’s
lands, in priority to his simple contract debts.

The 13 & 14 Vic., v. 29, repeals the 6 W. 4,
cv. 14, s. 126, the Irish Bankrupt Act.

Quere—Whether an affidavit made by one
only of several conuzees is a suflicient com-
pliance with the terms of the 6th sec. ?—Jn re
Ryan, 31. C. R. 33. (B.)

38. A water-wheel, which, without injury
to the freehold, can be removed by taking
off the caps and boxes, is nevertheless a
fixture not within the order and disposition
clause ; as are also the shafting and gearing
moved by and connected with it, though they
could be removed without injuring the free-
hold.

Beetling engines standing upon stones raised
above the floor, attached to one another, made
steady by their own weight, attached to the
joists above by stays, and moved by the driv-
ing shaft of the outside wheel, are fixtures
which go to the bankrupt’s mortgagee.—Re
R. & T. Dill, 71. Jur. N.S. 123. *(B.)

4, Although a trader may under certain
circumstances legally prefer one creditor to
another, and pay him by a transfer of goods,
yet such a transfer at night, and in a surrepti-
tious manner, is prima facie evidence that the
trader contemplated bankruptcy.

Bankruptcy following immediately, it ap-
peared that the trader had at the time of
the transfer been in insolvent circumstances.

[BANKRUPTCY.]

 

Assignment.

The transferee was compelled to pay to the
assignees the value of the goods, with costs.—
Re Thomas Johnson, 71. Jur. N.S. 124. (B.)

5. Assignees are entitled to the proceeds of
policies of insurance assigned by bill of sale,
as security for money advanced to a trader.
without notice of the assignment to the Insu-
rance Company before the bankruptcy.

A trader, to secure borrowed money, as-
signed teas to the creditor, who had no inti-
mation that he was embarrassed when the
assignment was made, and had not applied
for the assignment. Held, « fraudulent pre-
ference, and that the assignees were entitled
to the assigned property—Re M‘Coote, 7 I.
Jur. N.S. 188. (B.)

6. Traders got fictitious bills discounted as
ordinary trade bills,in a bank, and became
embarrassed before the bills fell due, but to
prevent a prosecution or exposure took up the
bills. Upon bankruptcy ensuing, these facts
were disclosed. Held, that the payment was
a fraudulent preference. The bank was com-
pelled to bring in the amount for the benefit
of the general creditors—ZJn re F: § R. Reid,
71. Jur. N.S. 404. (B). >

7. A., to secure £160 due from him to B.,
assigned furniture by a bill of sale, which pro-
vided that A.was to pay the £160, with in-
terest, by certaiu instalments ; and that if he
so paid the £160, with interest, the bill of sale
should be void; and that A. should have the
use of the furniture as long as he continued
to pay the instalments regularly. The first
and second instalments were paid. Before
the third fell due, A. filed a declaration of
insolvency, upon which he was subsequently
adjudicated a bankrupt. Held, that the fur-
niture passed to the assignees, under the order
and disposition clause, 20 & 21 Vic., c. 60, ».
313.—In re Murray, 9 I. C. R. 281. (B).

8. P., on the 23rd May 1861, executed a
trust deed, for the benefit of all his creditors
who should sign the deed within three months.
The deed contained special provisions touch-
ing proof of debts by the creditors.

A creditor, who had not signed the deed,
presented a petition agaiust P. An adjudi-
cation was obtained thereon, more than three
months after the 23rd May 1861. Held, that
the deed was, notwithstanding its peculiar
form, within the protection of sec. 93, and was
valid against the assignees in bankruptcy.—
Inre Peter Phelan, 12 1. C. R. 467. (B). [See
Re Phelan, 71. Jur.N. 8. 281. (B.)]

9. A., in order to obtain security for a debt
due to himself, induced his debtor to mort-
gage property to another creditor, B., as a
security for B.’s debt, and then prevailed with
B. to indorse bills, accepted by the debtor, to
secure A.’s debt. Held, that this dealing was
a fraud upon the bankrupt laws; that the
deed was inoperative against the assignees,
and that B. had a good defence to an action
brought on the bills—Re M‘Kean, 8 I. Jur
N. 8.16. (B).
?
Reputed

1, A partner in a firm drew bills in fictitious
names, and indorsed them to a bank. Seeing
that the stoppage of his firm was inevitable,
and fearing a prosecution for forgery, if the
circumstances transpired in the Bankrupt
Court, he withdrew the bills, still immature,
from the bank. Held, that this payment was
void, because it amounted to a fraudulent
preference within the meaning of the Bank-
rupt Laws.—In re Reads, 8 I. Jur. N.S. 41.
(C.A.)

2. On the lst of March two traders executed
to C. their bond, with warrant of attorney to
confess judgment thereon, which was filed on
the 30th March. On that day judgment was
marked, and duly registered. No affidavit,
verifying the date of the execution of the
bond and warrant, was filed. The traders
were adjudicated bankrupts on the 16th April.
Before the bankruptcy, C. levied a consider-
able amount of his judgment debt. The
money was, by consent and subject to the
parties’ rights, lodged in this Court. Held,
that the warrant was one to confess judgment
in a personal action within the 20 & 21 Vic.,
ce. 60, s. 384; and that, since the warrant had
not been filed, or its execution verified as re-
quired by that Act, the judgment was null and
void as against the assignees——Re Sheil &
Lyons, 10 I. Jur. N.S. 80. (B.)

3. A bank, being indorsee of bills on which
a trader had forged acceptances, the trader,
in contemplation of bankruptcy, took up the
bills without pressure on him being made by
the bank. The trader became bankrupt. Held,
that the payment to the bank was a fraudu-
lent preference.—Jn re ex parte Hibernian
Bank, 141. C. R. 118. (C.A.)

 

4, A trader, who had previously taken the
benefit of the Insolvent Act, three days after
entering into partnership with another, con-
veyed, by a voluntary deed, all his property
to trustees, in trust for himself for life, or until
bankruptcy or insolvency, &c., and afterwards
in trust for his wife and children. When this
deed was executed he was in debt, but not to
the extent of insolvency. Six years afterwards
he became bankrupt. In a suit by the assignees
in bankruptcy: Held, that the deed was void
under 10 Car. 1, sess. 2, c. 3 Ur.) 3 13 Eliz. ¢. 5
(Eng.)—Murphy v. Abraham, 15 I.C.R.371. (R.)

5. A trader made an absolute bill of sale of
two ships, in payment of advances made him
by the assignee, who had raised the money on
bills discounted in a bank. The bill of sale
was made at the bank manager’s instance.
Held, that the transaction was not a fraudu-
lent preference, although the ships still re-
mained in the assignor’s possession.

Assignees will not be allowed to stand as
specific creditors instead of a mortgagee, in
respect of sums advanced to pay off the mort-

age.
- Although a party establishes his claim, costs
will not be given when private transactions
demand investigation.—Re Curran, 10 I. Jur.
N.S. 59. (B.)

[BANKRUPTCY.]

 

97

6, A. and B., brothers, were entitled, as
tenants in common, to mill premises worth
£7500; one-third only of which was the share
of B., who owed A. many thousands of pounds.
B., by deed, assigned his share to A., in consi-
deration of £50 in cash, and the release of a
debt of £300. By deed, dated one month later,
A., in consideration of love and affection to B.,
his wife, and children, assigned all the mill pre-
mises, in trust to pay an annuity of £150a-year
for the benefit of B., his wife, and children.
These deeds were prepared by the trustee, a
solicitor, who deposed that they were one
transaction ; and that part of the considera-
tion for the first deed (executed only two days
before the date of the ro) was the annuity
granted by the deed. Semble—The evidence
was not sufficient to prove a valuable conside-
ration for the second deed.

To support against creditors a deed, volun-
tary on its face, the proof of valuable consi-
deration must be clear, and free from sus-
picion.

At the date of the second deed (4th May
1853), A. owed £2584, and had property to the
value of £3000. There was not any evidence
of an intention to defraud subsequent credi-
tors. He became bankrupt in 1860.

Held, that the deed, though voluntary, was
not void against his creditors under the 13
Eliz. ¢. 53; 10 Car. 1, sess. 2, c. 8. dr)—Gra-
ham v. O'Keeffe, 161. C. R. 1. (R.)

7. Distillers procured accommodation ac-
ceptances upon a general agreement that the
accommodating party should be secured by a
transfer of whiskey in bond. The delivery order
for the whiskey, and the invoice note of the
sale, were made out in April, pursuant, as was
alleged, to a previous contract for security.
The whiskey was actually transferred in May,
when the distillers were in a state of insol-
vency. J/eld, that nevertheless, by the law
regarding fraudulent preferences, the bank-
rupts’ assignees were entitled to the whiskey.
4 jor Stein, & Co. 11 I. Jur. N.S. 179.
B.

Ownership.

 

XI. 7. Reputed Ownership— Order and
Disposition.

8. Goods remaining, after an alleged sale,
in the possession of a man, who became bank-
rupt, “as reputed owner,” were ordered by
the Court to be sold for the benefit of the
estate. The bankrupt’s mother claimed to
own them as a bona jide purchaser for value.
The Court ordered the sale to be suspended,
the claimant to be at liberty to come in and
prove her claim either to the goods themselves,
or as a general creditor —Zn re Barr, 3 1. Jur.
288. (B.)

9. It was agreed between A. and B. that
A. should write a novel in monthly numbers,
B. to pay all expenses of 11,000 copies, and
also £300 per number, to A., and to be en-
titled to the remaining profits of those copies;
and as to all copies above 11,000 there was to
be a complete mutuality, the profits to be di-
vided equally between A. and B. The 11,000
copies were sold; but B. became a bank-
rupt, having a large quantity of copies unsold.

13
«

98

Held, that even if A. was a partner as to the
unsold stock, yet, as he was only a dormant
partner, the whole of it belonged to the credi-
tors of the bankrupt, under the 6 W.4 ¢. 14,
s. 86, as being in the order and disposition of
the bankrupt.

The agreement stipulated that the work
was to be sold to the public at one shilling a
number; 2000 copies were sold to a booksel-
ler at_ a reduced price, in respect of which A.
claimed to be compensated out of the bank-
rupt’s estate. Held, that this was no breach
of the agreement, but even if it was it would
raise a claim only for damages, and therefore
gave no right in the bankruptcy matter.—In
re Curry, 121. E.R. 382. (B.)

1. When the owner of chattel property,
and of an establishment where he carried on
his business, left the country without giving
any directions as to his affairs, or making any
provision for his wife, and one of the trustees
of her marriage settlement took possession of.
chattels, the subject of the settlement, and
paid the wife a weekly sum for their hire,
with the consent of co-trustees, and they so
remain with him to his bankruptcy ; they will
be held to be in his order and disposition ;
and the true owner cannot claim them: it ap-
pearing that he knew of the arrangement, but
did not remonstrate against it—Re Murray,
91. Jur. N. 8.98. (B.)

2. “P., of city of Cork, law clerk,” is an in-
sufficient description of the witness to a bill
of sale in the registering affidavit. The resi-
dence of the witness must be described in
such a manner as that a stranger may thereby
be able to discover it with reasonable cer-
tainty. The bankrupt had given a bill of sale
of the furniture in his hotel at Q., to B., for va-
luable consideration; but continued to retain
the furniture, and use it in the hotel. B. did
not interfere with the furniture, or with the
management of the hotel. Held, that the fur-
niture came within the reputed ownership
clause, and should be ordered to be sold for
the benefit of the general creditors.

The mere fact that the dealings between the
bankrupt and B. with regard to the bill of
sale were beneficial to the general estate, and
assented to by several of the parties inte-
rested, does not raise an equity to bar the
operation of the statute.

Quere—As to the operation of a notorious
transaction, such as the registration of a bill
of sale, in affecting the question of reputed
ownership ?—Jn re Hams, 10 I. C. R. 100; 5
I. Jur. N. 8. 59. (B.)

8. A bill of sale or transfer of property
which would be an act of bankruptcy, if adju-
dication took place on that act within six
months, will not be invalidated by relation
back, when the adjudication takes place upon
another act of bankruptcy and after the lapse
of the six months. Assignees under a bill of
sale took possession of the property, kept the
bankrupt in their employment, and removed
off the premises goods, when manufactured, of
portions of which the bankrupt disposed.
feld, that such goods were not within his dis-

Reputed

[BANKRUPTCY.]

 

*
Ownership.

position and order, but that those which re-
mained on the premises were.—Re Fox 6 I.
Jur. N. 8. 375. (B.)

4, P. & Co. sold to the bankrupt, H., several
parcels of whiskey in bond. Delivery orders
were made out by P. & Co. to their storekeeper
to deliver the whiskey to H., or order. The
payment was by bills. H. indorsed some of
the delivery orders to C. for value before
bankruptcy. C. presented these orders to the
storekeeper of H. Some formalities were
required to be gone through at the Custom-
house, and the whiskey was not immediately
delivered to C. Nothing remained to be
done by P. & Co. in order to complete the
sale toH. P.& Co. claimed the whiskey as
unpaid vendors, having a right of stoppage
in transitu.

C. claimed it as indorsee for value of the
delivery order, and the assignees in bank-
ruptcy claimed it under the order and dispo-
sition clause.

Held, that the transitus was complete on the
receipt of the delivery order by H., and there-
fore no right of stoppage in transitu remained
in P. & Co.; that the whiskey was not in the
order and disposition of H. at the date of the
bankruptcy, and therefore the assignees had
no title; and that C. was entitled to the
whiskey.—In re Thomas Hughes, 12 I. C. R.
450 and 463.—6 I. Jur. N. S. 260, and 7 I. Jur.
336. (B.)

5. A trader executed by way of mortgage a
bill of sale of chattels, containing a clause
that he was to retain possession until a cer-
tain day, wherehy he was to pay the advances
made. Nothwithstanding this clause, the mort-
gagee demanded possession of the goods three
days after the execution of the mortgage.
The trader refused, and the mortgagee seemed
to acquiesce in the refusal. The goods were
in the trader’s apparent possession at the time
of his bankruptcy. Held, that they were in
his order and disposition, with the consent of
the true owner; and that they passed to the
assignees.—Re Sim, 71. Jur. N.S. 264. (B.)

6. A trader died, leaving debts and assets.
His widow traded still; contracted new debts,
and took out administration to her husband’s
assets. These assets held liable to pay her
husband’s debts jirst.

Though they remained in her possession »
considerable time, and a large portion of them
was sold to pay a bond debt due to the
trustees of her marriage settlement, they were
held not within the disposition and order
clause; but, so far as they were ascertained
to belong to the husband, were applied in
payment of his debts, no unnecessary delay on
the trustees’ part having happened.

When a Ch. suit is instituted to administer
a trader’s assets, and one of his creditors files
a claim, that will not be deemed an election,
or prevent the trader from proving on his
bankrupt administrator’s estate——Re Roberts,
71. Jur. N.S. 339. (B.)

7. The lessor of an hotel, in which the lessee
carried on business for some years, owned the
Wife's Property.

furniture therein. The lessee failed, and paid
his creditors a composition of 7s. 6d. in the
pound. The furniture was then of sufficient
value to pay double what he owed.

The lessee continued to deal with the same
and with other creditors, who knew his circum-
stances. He became bankrupt. The assignees
claimed the furniture as being in his reputed
ownership at the date of the bankruptcy. The
furniture was the same which he had had at
the date of the composition.

Held, that the reputed ownership section
did not apply, because it might be presumed
that the lessee after his composition obtained
no fresh credit on account of the possession
of the furniture.—ZIn re Shaw, 81. Jur. N.S.
96. (B.)

1. V. bequeathed, to trustees, jewels upon
trust that the trustees for the time being
should permit his widow to enjoy them for
life; and that after her decease they should
form part of the residue of his personal estate.
Shortly after his death the widow lent the
ornaments to her daughter on her marriage.
In the daughter’s possession they remained
until near her death, when she pledged them.
Her husband released them, and became in-
solvent. Held, that they did not pass to the
assignees as his wife’s absolute property, or as
being in the insolvent’s order and disposition
with the consent: of the legal owners, the
trustees.—Re Robertson, 8I. Jur. N.S. 418. (B.)

2. A bank advanced money to T., upon the
faith that they would be repaid out of the
proceeds of goods shipped by T. to foreign
consignees, whom T. had instructed to remit
the proceeds to the bank; but the goods were,
with the bank’s consent, in T.’s order and dis-
‘position at the date of his subsequent bank-
ruptcy. The bank did not give the consignees
any notice of these transactions. Held, that
the property was not taken out of T.’s order
and disposition; and that the proceeds vested
in the assignees of the shipper.—In re E.
Thornton, 11 I. Jur. N.S. 62. (C.A.)

3. In case of bankruptcy, trade fixtures,
seizable under a, /i. fa., will pass to the assignee
under the reputed ownership clause.

Machinery permanently annexed to the free-
hold will not be regarded as goods and chat-
tels which will pass under the reputed owner-
ship clause; but fixtures, which the tenant
may sever and change into chattels, will be
held chattels for the benefit of his creditors
generally, as well as for the benefit of the
particular creditor who seized under a ji. fa.

Fixtures unannexed to the freehold, but
steadied by their own weight, and worked by
moveable belts, pass to the assignees as goods
and chattels. Machinery attached to the
freehold, merely for the purpose of making it
steady in working, will not be held to be
attached to the freehold in such a manner as
to prevent it becoming chattel property under
the reputed ownership clause.—Re 7. Tracey,
111. Jur. N.S. 100. (B.)

XI. 8. Wife's Property. (See also Husband and
Wrfe, V. 3. b.)

 

,

[BANKRUPTCY.]

 

99

Liens.

a. Wife's Equity for a Settlemeni.

b. Provision for Wife.

 

XI. 8. a. Wife's Equity for a Settlement.

4, A wife’s fortune was, upon her marriage,
advanced to the husband upon his bond, with
interest at £6 per cent. The bond was put
in settlement, and vested in trustees for the
wife’s benefit, on condition that the interest
should not be payable, except in the event of
bankruptcy, &c. Bankruptcy happened. Held,
that the trustees might prove for interest
from the time when the money was advanced
up to the bankruptcy.—Re O’Brien, 8 I. Jur.
N.S. 217. (B.)

 

XI. 8. b. Provision for the Wife.

5. By post-nuptial settlement, the wife’s
father assigned a term of years, in trust for
the husband for life, or until he should be-
come bankrupt, or take the benefit of any
Act, &c., or assign his property for the benefit
of his creditors, or otherwise fail in his cir-
cumstances ; and after such event, or from his
decease, in trust to pay the wife for her life
the rents, &c., and after the decease of both,
in trust for the children. Provided that if
the husband should become bankrupt, &c. (as
before) his life interest should cease, and the
trustees should pay the rents to the wife for
her separate use. The husband and wife by
deed (acknowledged) mortgaged all the wife’s
estate in the premises at law or in equity. The
husband afterwards took the benefit of the
Insolvent Act. Held, that the temporary
embarrassment of the husband at first did not
bring in operation the limitations to the sepa-
rate use of the wife ; and that in a suit by the
mortgagee, instituted before the insolvency,
he was not entitled to a decree for sale of the
wife’s separate estate.—Bestall v. Bunbury, 13
I.C. BR. 549. (R.)

6. An insolvent, although he may obtain
property by his wife after marriage, has no
right to put it in settlement for the benefit of
her and their children, if he then has credi-
tors.—Re Clark, 9 I. Jur. N.S. 384. (B.)

 

XIL Securities anp Liens.
1. General Doctrines,
2. Equitable Mortgages. See infra, X, 6.

 

XII. Seccriries anp Liens.
1. General Doctrines.

7, A., having contracted to purchase an es-
tate, obtained a conveyance from the tenant
for life, in which the remainderman in fee
did not join, in 1835. In M. Term 1835, A.
confessed a judgment to W. for £4000. In
Feb. 1836, A. mortgaged the estate to E. for
£5000; and, in June 1836, on a further ad-
vance of £2000 by W., mortgaged to W. for
£6000. In March 1837, A. became bankrupt.
The estate was not of sufficient value to pay
both mortgages. Held, that the provisions of
the 6 W.4, c. 14, s. 126, did not apply, and
that W.’s judgment had priority over E.’s
mortgage.— Baldwin v. Belcher, 6 I. E. R. 424;
1Jdon.& L.18. (C.)
100 Liens.

1. A deed purporting to be an absolute sale,
will not be held a mortgage on the evidence
of the grantor, supported by the testimony
of third parties, as to alleged declarations
to that effect made by the grantee long after
the deed was executed.—In re Naghten, 5 I.
Jur. N.8. 196. (B.)

2. A bank discounted bills drawn by a
trader on his consignee, who refused to accept
them. The consigned goods were subse-
quently sold. Held, that the bank had not
a lien on the goods, or a claim on the pro-
ceeds of their sale—Re M‘Kean, 8 I. Jur.
N.S. 16. (B.)

3. Bills drawn by P. were accepted by W.,
who mortgaged leasehold property to P. as
collateral security. P., joined by W., assigned
the mortgage to G., who discounted the bills
for P., who subsequently got them discounted
by a bank. W. became bankrupt. The bank,
holding W.’s acceptances for the entire debt,
proved for the whole. G. made the mortgage
available to the extent of £387. Held, that
this sum must be deducted from the proof
made by the bank, or else they should allow
the assignees to proceed in their name against
P., on foot of the bills—Re Wilson, 8 I. Jur.
N.S. 57. (B.)

4, A trader, who under the arrangement
clauses petitions the Court, obtains the usual
protection, and has an order made for the
assignee to receive and possess his estate,
cannot, even by special arrangement with his
attorney, lodge with or transfer to him any
portion of his assets as security for his costs,
so as to create a lien in the attorney’s favour.

An attorney who, in an arrangement mat-
ter, voluntarily hands over to the Official
Assignee scrip or railway shares deposited
with him by his client, the trader, will have
no equitable claim on foot of those shares for
costs due to him by his client.

An attempt to establish a special lien on a
trader’s assets of which the attorney has got
possession by special contract as security for
his costs, these assets being bound by an
order of the Court procured by that attorney,
must fail, since it would be against the rights
and equities of the several creditors bound by
the vesting order.

When proceedings are taken bona fide,
without the authority of the Court, or sanc-
tion of the assignees, the attorney is not enti-
tled to any lien for costs; but, when the
assignees concede the right of proving for
these costs, the Court will sanction it.

When there are transactions between an
arranging trader and a third party, and a
mistake as to the amount is made against
that third party, who in ignorance of it gives
up railway shares, no lien will follow them.—
Re North, 101. Jur. N.S. 297. (B.)

 

XII. 2. Equitable Mortgages.

5. H., an attorney, acted for B., a mortga-

See supra, X, 6.

gor, who mortgaged for £600, to a bank, his |

[BANKRUPTCY.]

 

Proof.

interest in a lease for 999 years. B. had
erected on the land buildings worth £2000.
H. knew that the lease was deposited with
the deed of mortgage, as he acted for the
bank likewise. Soon afterwards, the bank,
without the knowledge of H., obtained from
B., by letter, an equitable mortgage of the
same premises. This equitable mortgage re-
mained unregistered. Afterwards, B. mort-
gaged his equity of redemption to C. In this
transaction H. acted for both B. and C. On
B.’s bankruptcy, the bank claimed for their
equitable mortgage priority over C.’s mort-
gage. Held, that C. had not through H. con-
structive notice of the equitable mortgage.

An unregistered equitable mortgage cannot
have priority unless there is direct notice.

Respecting constructive notice, the question
is, whether C. was guilty of gross negligence
in not obtaining it?—Re Morrisson, 1 I. Jur.
N.S. 282. (B.)

6. A., being indebted to B. in £100, gave
him an unstamped order for payment upon
C., who owed A. £300. The order was in the
following form:—‘ You will please hand B.
the sum of £102 sterling, and charge the same
to the debit of my account with you.” On
the day that the above order was given, B.
wrote to C., inclosing a copy thereof. Held,
that it did not amount to an equitable assign-
ment pro tanto of the sum in B.’s_ hands.
That it was a mere money order, and could
not have any secondary operation as an equi-
table agreement to charge; that as a money
order it required a draft stamp; and that,
being unstamped, it could not be received in
evidence. To constitute an equitable assign-
ment of money in the hands of a third party,
there must be a particular existing fund dealt
with at the time, and there must also be a.
specific appropriation intended of the whole
or part of such particular fund.—Zn re Farrell,
101. C. R. 805. (B.)

 

XIII. Proor.

. Generally, and in cases not specified; ob-
Jjections to.
Claims.
. Mode of, fe.
. By persons holding Securities.
. Between Principal and Surety.
. Partnership.
a. Joint and separate debt, what is.
b. Between partners or estates.
v. Joint debts under separate Commis-
sions; et e contra.
7. Of Annuities, Sc.
8. Of Marriage Settlements.
9. Of Interest.
10. Of Damages and Costs.
11. Of Debts accruing after Bankruptcy.
12. Of future and contingent Debts and In-
terest.
Expunging.
Election at Law, or under Commission.

_

& OU oo bo

13.
14.

 

XIII. 1. Proof generally ; in cases not specified ;
objections to.

7. When a judgment is not tainted with
Proof of.

fraud, the assignee cannot rely on a mere
defence at Law, which the bankrupt had ne-
glected to make. The consideration for the
judgment is always subject to investigation.

The minute-book, made evidence by the
8 Vic., c. 16 (Companies Clauses Consolidation
Act, s. 98), may be transcribed or made from
rough minutes taken at time of the meeting.

Railway calls, made payable by instalments,
cannot be enforced.—[Revd., 1 I. C. R. 654.
(C.)]

The twenty-one days’ notice of a call, re-
quired by its 22nd sec., must be exclusive of
the first and last days.

The abandonment of part of a railway is
no defence to a claim for calls; nor is the
non-subscription of the prescribed capital a
defence.

A Railway Company proving against the
estate of a bankrupt for calls must, according
to the universal principle in bankruptcy, de-
duct the price or value of the shares from the
amount of their claim, or give up the shares
for the benefit of the creditors of the bank-
rupt.—[Affd., 11. C. R. 654. (C.)]—Zn re Jen-
nings, 1 I. C. R. 236. (B.)

1. A., a stock-broker in England, by direc-
tion of B., a stock-broker in Ireland, pur-
chased stock for the account. When settling
day was approaching, B. directed A. to sell
£25,000 stock, and to carry over the residue
of the stock purchased, to the account day in
the ensuing month. A., for the purpose of
continuing the contract, raised loans of money
on stock, in some instances; and in others
paid the differences between the price of the
stock on the day it was purchased and what it
would have sold for on the day of settlement.
B. became bankrupt, and A. took up the stock,
paying the differences. A. claimed to prove
against the bankrupt estate for these differ-
ences. Held, that as to the £25,000 actually
sold and transferred, A. was entitled to prove
for the loss occasioned by his payment of the
differences ; that, as to the loans or continued
contracts, as there was no actual sale of the
stock, the loss which accrued by the payment
by A. of the differences in these transactions
could not be recovered, the 7th G. 2, c. 8, s. 5,
(£ng.) requiring an absolute sale of the stock.
—Re Burke, 2 1. Jur. N.S. 85. (C).

2. The assignees in bankruptcy having
brought an action (by leave of the Court)
against a scheduled creditor, who had not
proved his debt, the defendant applied for
copies of the depositions in the bankruptcy
matter, to enable him to prepare his defence.
Held, that he was not entitled to get them, as
he did not come within sec. 357, he not hav-
ing proved his debt, and no special grounds
being established for such order.—Lx parte
Walsh, 101. C. R. 115. (B).

 

XIII. 3. Mode of Proof, &c.

 

XU. 4. Proof by Holders of Securities.

3. A creditor will not be permitted to prove
upon the bankrupt’s estate for bills or notes,

[BANKRUPTCY.]

 

ue
Securities. 101
if notice of dishonour be not given to the~
bankrupt before the bac sreneg PN or to the
assignee subsequently.—Jn re Mullen, 3 I. E.R.
361. (B).

4, Application to be at liberty to prove and
receive dividends upon bank notes purchased
from various holders, after the date and issu-
ing of the commission, refused, no satisfactory
evidence having been given to the Court of
the time or place of the purchase of the notes,
the price paid for them, or that the parties
from whom they were purchased were bona fide
holders.—Jn re Delacour, 31. HE. R. 573. (B).

5. The 7th G. O. in Bankruptcy applies to
equitable mortgages.—Jn re M‘Cullagh, 11 I.
E. R. 466. (C).

6. When parties, other than the assignees,
present under the Ch. Reg. Act, s. 15, a peti-
tion to sell the bankrupt’s lands, to raise the
amount of charges thereon, the petitioners
having the carriage of the proceedings may
and ought to resist the proof of a charge by a
judgment creditor seeking to have the benefit
of his judgment, which the 12 & 13 Vic., c. 107,
s. 108, reduces to the rank of a simple contract
debt. Before award of an elegit, a judgment
does not bind chattel lands as against pur-
chasers and mortgagees who became so before
the 3 & 4 Vic., c. 105.—Jones v. Stokes, 2 I. Jur.
N. 8.42. (R)

7. When proof upon a bill of exchange ac-
cepted by the bankrupt is made, deductions
must be made for all the previous payments
on account by other parties to the bill, and
the proof can only stand for the amount
actually due at the time of the bankruptcy.—
[Ex parte De Tastet, 1 Rose, 10, overruled.]
In re Dunne, 71.C. BR. 285; 31. Jur. N.S.
94. (B.)

8. Bills drawn by P. were accepted by W.,
who mortgaged leasehold property to P., as
collateral security. P., joined by W., assigned
his mortgage to G., who discounted the bills
for P., who subsequently got them discounted
bya bank. W. became bankrupt ; the bank
holding W.’s acceptances for the entire debt,
proved for the whole ; G. made the mortgage
available to the extent of £387. Held, that
this sum must be deducted from the proof
made by the bank, or else they should allow
the assignees to proceed in their names against
P. on foot of the bills—Re Wilson, 8 I. Jur.
N. 8.57. (B).

9. V. becomes security for payment of a
composition by an arranging trader. When
two instalments have been paid, the case is
turned into bankruptcy. The creditors prove
against the estate of the principal for their
first bills, giving credit for the instalments
paid. V. then becomes bankrupt. The cre-
ditors will not be allowed to prove on his
estate for two sets of unpaid bills, they having -
made their election Re Sheehan and Feehan’s
Estate, 91. Jur. N.S.198. (B.)
102 Partnerships.

XI. 5. Between Principal and Surety.

1. When two debtors execute a joint bond,
with a third party as their surety, the creditor
who enters up a joint judgment on the bond
cannot, upon the original debtors becoming
bankrupt, prove upon their estate upon foot
of the joint judgment, whilst their co-conuzor
remains solvent. This rule is not confined to
cases of partnership, but applies to contracts
generally. When creditors have a judgment
on a bond, given as a collateral security for
advances to be made, the doctrine of merger
does not apply ; the creditor may prove on
foot of the simple contract. Parties signing
a guarantee will not be regarded as original
debtors to the creditors to whom itis given;
it will be treated as a collateral security.
When a creditor’s proof is not properly pre-
pared, and another meeting is necessary, he
must pay a portion of the costs incurred. A
creditor, volunteering to aid the assignee in
objecting to a proof, will not be allowed any
costs.—In re Agnew, 1 I. Jur. N.S. 252. (B).

 

XII. 6. Partnership.
a. Joint and separate debt: what is.
b. Between Partners or Estates.
c. Joint Debts under separate Commis-
sions ; et e contra.
d. Election to prove on separate or joint
Estate.

 

XII. b. a. Joint and separate debt: what is.

2, A., B. and C., together with D. (deceased),
and two sureties, gave their joint and several
bond, with warrant of attorney, to the Provin-
cial Bank, as security for the balance of an
account current, not to exceed £1000. Under
the warrant of attorney, the bank entered six
separate judgments against the obligors. A.,
B., and C. became bankrupts. The bank now
sought to prove on the joint estate for the
balance of the account current due at the time
of the bankruptcy. Held, that the bank was
precluded from proof of the debt, as simple
contract ; that the bond was merged in the
separate judgments, and that the proof could
only be against the separate estates of the
bankrupts.—Jn re Clarkes, 71. E. R. 39. (B.)
[Revd. 81. E. R. 60; 2 Jon.& L. 212. (C,)]

8. A., B., C., and X., being partners, A. and
X. gave a bond to K., on which separate judg-
ments were entered in 1818. B. became A.’s
executor; and in letters prior to 1822 treated
the debt as due by him, but it did not appear
whether it was as A.’s representative or a part-
ner of the then firm. In 1822 K. proved the
debt in a suit against X.’s estates. Of the
original firm C. alone was a partner in 1829.
In 1830 letters were written, but not to K., in
the name of the firm, offering an arrangement
by discharging the debts out of a debt due'to
them, which was never effected. The property
was transferred to the successive firms. In
1834 the last firm became bankrupt. Held,
that there was not sufficient to show a transfer
of liability to the bankrupt firm so as to sus-
tain a proof against their joint estate.

[BANKRUPTCY.]

 

Proof in.

The legal transfer of a debtor’s Hability to
his creditor’s creditor, and the liability in
bankruptey of a new firm to whom the assets
of an old firm are transferred under an ar-
rangement to pay its debts, considered and
defined.

A letter simply acknowledging a debt, im-
plies a promise to pay; but if it also points
out a particular mode of payment, it is thereby
qualified, and will not take a simple contract
debt out of the Statute of Limitations.

A claim in bankruptcy will not be allowed
on a ground different from that put forward
es aa creditor.—JIn re Littles, 10 I. E. R. 275.

4, In 1846, A. & B., to secure a debt due
from them as partners to C., gave C. their
joint and several bond and warrant of attor-
ney, upon which C. entered up a joint judg-
ment. In 1849 the partnership was dissolved,
and from that time A. alone carried on the
business. In 1858 A. became bankrupt. Held,
that C. could not prove for the amount secured
by the bond upon A.’s estate, the several as
well as the joint bond and warrant having
been merged in the joint judgment. The
principle of Ex parte Christie [Mont. & B.
352; 2 D. & Ch. 154] applies to and rules
this case.—In re Gallie, 9 I. C. R. 188. (B.)

5. A. & B., partners in trade, became bank-
rupt. C. proved upon the joint estate. D.,
another creditor, upon an affidavit that C.’s
debt was “ not justly due,” it being the private
debt of one of the partners, applied ex parte,
under the 20 & 21 Vic. c. 60, s. 263, for an
order to examine witnesses, in order to have
the proof expunged, and a dividend received
by C. refunded. Notice of the application
was directed to be served on the trade assignee
and upon C. Motions under the 268rd sec.
must, according to the practice of the Court,
be upon such notice. Semble—When the
joint estate of a partnership firm is being
administered, the private debt of one of the
partners is a debt “ not justly due” within the
263rd sec.—In re Ferrar, 9 I. C. R. 289. (B.)

6. A, proprietor of a wholesale woollen and
cloth establishment in Dublin agreed with B.,
sole owner of a separate and larger concern in
the same trade in Huddersfield, which B. had
previously conducted, to become its managing
partner. B. having offered to become a partner
in the Dublin establishment of A., it was ar-
ranged, though not upon any definite conclu-
sive agreement, that B. should superintend the
Dublin concern with the object of testing its
capacity, and ascertaining whether it was
sufficiently profitable to be continued. It was
further agreed, that at the expiration of a
year, B. should have the option of entering
into a partnership in the Dublin business, and
should be entitled to a share in the profits of
that year, but should not receive any remune-
ration or any portion of the profits, if, at the
end of that time, he elected to not become a
partner. B. came to Dublin, and for some
time took part in the superintendence and
management of the Dublin establishment. He
Partnerships.

never exercised however his option of becom-
ing a partner; but, having apparently aban-
doned all interest in the concern, died before
the expiration of the year of trial. Held, that
a partnership in the Dublin business did not
exist between A. and B.; and consequently
that a claim made by B.’s executors to be
admitted as creditors of A.’s estate, on his
bankruptcy, for goods sold and cash supplied
by the Huddersfield house to the Dublin con-
cern, should be allowed.—Zn re Hall, 15 I. C.
R. 287. (C.A.) [Revg. the order of Judge
Lynch, 15 I. C. R. 291, note. (B.)]

 

XIU. 6. b. Proof between partners or estates.

1. Claim on behalf of the Fife Bank, to
prove on the joint estate of the bankrupts
(one of them being the surviving partner of
an original firm, which had become share-
holders in said bank), for the amount of calls
ascertained to be due by a decree of the Court

of Session in Scotland, previous to the date of"

the commission, and for a further amount of
calls made subsequent to that date, refused.
The amount decreed allowed to be proved on
the separate estate of one of the partners, a
defendant inthe decree. The amount of sub-
sequent calls refused altogether.

Semble—Proceedings taken to recover from
the separate estate of a partner, an election to
waive a claim on the joint estate.

Distinction between property belonging
jointly to partners, and property constituting
part of the partnership assets.—In re Little,
6LE.R.197. (B.)

2. Partners in a trading firm, who, with
their sureties, had entered into a ‘joint and
several bond to cover moneys (not exceeding
£1000), which should become due to a Bank-
ing Company, became bankrupt. Held, that
the company might prove against the joint
estate for a balance less than £1,000 due on
foot of an account current.—Jn re Clarkes, 8
LE. R. 60; 2 Jon. & L.212. (C.)

 

XIII. 6. v. Joint debts under separate Commis-
sions, et e contra.

8. Bankers having taken from a firm of
four traders a joint and several bond and
warrant to confess judgment, with two sure-
ties, to secure whatever balance, not exceeding
a certain amount, might be due at any time
from the firm to the bank, entered under the
warrant six separate judgments. The firm
became bankrupt. Held, that the bank might
prove for a balance due to them, within the
amount covered by the bond and warrant,
against the joint estate of the bankrupts.—
In re Clarkes, 81. E. R. 60; 2 Jon. & L. 212. (C.)

4. The Fife Bank claimed to prove on the
bankrupt’s joint estate for the amount of calls
decreed by the Court of Session in Scotland
to be due before the date of the commission,
and for the amount of further calls made
after that date. One of the bankrupts was
the surviving partner of an original firm which
had become shareholders in the bank. The

[BANKRUPTCY.]

 

Proof in. 103

claim was disallowed ; but the amount decreed
was allowed to be proved on the separate es-
tate of one of the partners, a defendant in the
decree. The claim to prove in respect of the
subsequent calls was disallowed altogether.
Semble—Proceedings taken to recover from
a partner’s separate estate is an election to
waive a claim on the joint estate-—Ez p. Fife
Banking Co., in re Little, 6 1. E.R. 197. (C.

5. A. B., C., and X., being partners, A. and
X. gave a bond to K., on which separate judg-
ments were entered in 1818. B. became A.’s
executor; and, in letters prior to 1822, treated
the debt as due by him, but, whether as A.’s
representative, or as a partner of the then
firm, did not appear. In 1822, K. proved the
debt in a suit against X.’s estates. Of the
original firm C. alone was a partner in 1829.
In 1830 letters were written, but not to K., in
the name of the firm, offering an arrangement
by discharging the debts out of a debt due to
them, which was never effected. The pro-
perty was transferred to the successive firms.
In 1834 the last firm became bankrupt. Held,
that there was not sufficient to show a trans-
fer of liability to the bankrupt firm so as to
sustain a proof against their joint estate.

The legal transfer of a debtor’s liability to
his creditor’s creditor, and the liability in
bankruptcy of a new firm to whom the assets
of an old firm are transferred under an ar-
rangement to pay its debts, considered and
defined.

A letter, simply acknowledging a debt, im-
plies a promise to pay; but if it also points
out a particular mode of payment, it is there-
by qualified, and will not take a simple con-
tract debt out of the Statute of Limitations.

A Scotch decree on an arrestment, jurisdic-
tionis fundande causa, against a defendant not
present in Scotland, and who did not appear
in the suit, does not create any personal lia-
bility in this country.

A claim in bankruptcy will not be allowed
on a ground different from that put forward
es = creditor.—Zn re Littles, 10 I. E. R. 275.

C.

6. In order to entitle a creditor to prove on
the joint estate of a partnership firm, for a
debt which was originally the separate debt
of one of the partners, there must be proved
a positive agreement to adopt the debt as
that of the firm, or facts from which the
Court will be justified in deducing an agree-
ment or consent to the adoption. It is not
sufficient that the money lent to one partner
has been ultimately applied to the purposes
of the firm.—Jn re Ferrar, 9 I. C. RB, 11
eo [Affd. 9 I. C. R. 554; 51. Jur. N.S. 40.

 

XIII. 6. d. Election to prove on Separate or Joint
Estate.

 

XIII. 7. Of Annuities, §c.
XIII. 8. Of Marriage Setilements.

 

 

XW. 9. Of Interest.
104 Proof.

XII. 10. Proof of Damages and Costs.

1. A creditor will not be permitted to prove
upon the bankrupt’s estate for the amount of
bills and notes, if notice of dishonour be not
given to the bankrupt before the bankruptcy,
or to the assignees afterwards.—Zn re iJullen,
38L E.R. 361. (C.)

2. A.employed B., a builder, to take down
the front wall of his house, and execute some
other repairs. While the works were in pro-
gress, C., the occupier of the adjoining house,
served a notice upon A. that injury was
likely to result to his house from the repairs ;
and that he would hold A. responsible. B.,
upon this being mentioned to him, wrote in the
estimate of the works the following memoran-
dum :—“In carrying out the foregoing work,
I hereby undertake to hold myself responsible
for any injury done to the adjoining houses.”
Some works in addition to those in the es-
timate were done; the contract was com-
pleted ; and B. paid in full for all. C. brought
an action against A., avering negligence, and
alleging various injuries to his house from
the works. B., upon being called upon to
settle, or defend the action, made no reply,
and soon after became bankrupt, and ab-
sconded. A. having had to pay £191. 7s. 11d.
damages and costs, and £60 his own expenses
in the action, sought to prove for £251. 8s. 11d.
Held, that (supposing the memorandum to
constitute a contract upon a valuable conside-
ration) the damages which C. might recover
against A. were not necessarily identical with
those contemplated by the guarantee, and that
A. could not prove for the above sum either as
for a debt payable upon a contingency within
s. 257, or as for a liability to pay money upon
a contingency within s. 258.—Jn re Quin, 11
LC. R. 57. (B.)

XII. 11. Of Debts accruing after Bankruptcy.

 

 

XI. 12. Of future and contingent Debts and
Interest.

3. The principle laid down in Jn re Ferrar
ex parte the Ulster Banking Company, 9 I. C. R.,
11, affirmed. When what is in law only a se-
parate debt, has been proved on the joint
estate, and a dividend received, the Court
will order the proof to be expunged. It is the
duty of the assignees to take care that such
proof be not admitted. Where creditors per-
form the duty which the assignees ought to
have performed, the creditors will get their
costs, and the assignees will get no costs. The
creditor whose proof is expunged will get his
costs, if his conduct has been bona fide, and he
has been in no respect to blame in the matter.
In this case the dividend ordered to be re-
funded, the creditor who had proved having
waived the question as to whether the Court
had jurisdiction to make such order.—Jn re
Ferrar, 91.C.R. 554; 51. Jur. N.S. 40. (B.)

 

XIU. 14. Election to prove at Law or under
Commission.

4, The 20 & 21 Vic., c. 60, is not an unquali-

fied repeal of 3 & 4 Vic., c. 107, it is rather a

[BANKRUPTCY.]

 

Set-off

re-enactment of portions of the old Act, so far
as relates to proceedings pending at the time
of the passing of the present Act. The 20& 21
Vic., c. 60, s. 217, does not in all cases operate
retrospectively. When proceedings were pend-
ing in insolvency at the time of the passing of
20 & 21 Vic., ¢. 60, and creditors had at that
time incurred liabilities, and acquired rights,
those liabilities and rights are regulated by
3&4 Vic. c.107. The rule as to election in
sec. 71 of 3&4 Vic., c. 107, still prevails. The
creditor is not bound to elect until he has an
opportunity of seeing which fund is more pro-
ductive.—ZIn re Browne, 9 I. C. R. 271. ((B.)

 

XIV. Set-orr.

5. A testator bequeathed to each of his daugh-
ters £1500 and an annuity of £40, charged on
house property, until they should have been
provided for by payment of his legacy; on
payment of which the annuities thereby given
as temporary provision for them should cease.
He bequeathed the house property to his sons
A. and B., whom he appointed executors, ‘and
directed that they should, within three years
after his decease, invest £3000 in stock, to
discharge the legacies to his daughters. A.
and B. were traders, and did not invest the
£3000 in pursuance of the direction, but paid
interest at £6 per cent. on the legacies, and
also the annuities to the daughters. B. died.
A. became bankrupt. The daughters proved
for the legacies, under a ruling of the Com-
missioner that they should elect to do so
within a certain time. The house property
was sold in bankruptcy, subject to the annui-
ties, which were referred to in the particulars
of sale. The conveyance, which was prepared
by the purchaser, a solicitor, was subject to
the annuities, in case and so long as the
same, or either of them, should be or continue
charged and payable out of the property
under the provisions of the will. Several
gales of the annuities were paid after the
conveyance was executed by the assignee.
Held, that, though the property was sold abso-
lutely subject to the annuities, and the con-
veyance was therefore not in accordance with
the contract, the Court, having no jurisdiction
in bankruptcy, must construe it according to
its legal effect; and the purchaser took the
property subject to the annuities, if legally
subsisting.

That the daughters had not, by proving in
the bankruptcy, waived their right to the
annuities ; the election which they were put
to by the Court being, whether they would go
against the property sold as part of the assets
on a devastavit, or permit it to be sold?

That the mere fact of the daughters having
allowed the money to remain in the execu-
tor’s hands at interest did not amount to a
payment of the legacies in point of law, and
a loan of it to the executors; but—

Secus, if it remained in their hands in re-
spect of a contract for a loan, and the Court
directed a distress to be made for the annui-
ties, to try the question whether such a con-
tract existed.—(Gatchell v. Geoghegan, 6 I. C.
R. 312. (R.)
Dividend.

1. B. accepted a bill to accommodate brew-
ers, who undertook to deliver him ale and
porter to an amount sufficient to put him in
funds to meet the bill. Before it became due
they presented their petition under the ar-
rangement clauses; and an order vested their
estate in Official Assignees, who were per-
mitted to carry on the trade, and supply B.
with ale and porter as usual.

The case was then adjourned into Bank-
ruptcy, and the trading continued until the
appointment of a creditors’ assignee. Though
B. paid the bill, he was not allowed to set-off
the amount against any portion of the debt
contracted after the vesting order under the
arrangement, although he had no notice of it
until the bankruptcy.—Ezx parte Levy, 6. I.
Jur. N.8. 186. (B.)

 

XV. Drvipenp.

1. Generally.
2. Payment and recovery of, §c.
3. Unclaimed Dividends, and interest thereon.

 

XV. 1. Dividends generally.

2. A., seised of lands charged with an an-
nuity, and of other lands not so charged, sold
a portion of the former to B., and covenanted
with him that the annuity should be exclu-
sively borne by the latter. By a subsequent
marriage setlement A. conveyed the indem-
nity lands to the use of himself for life;
remainder to the use of such sons of the mar-
riage as he should appoint to; remainder to
the first and other sons in tail; and cove-
nanted with the trustees for quiet enjoyment
and against incumbrances. The annuity hay-
ing fallen into arrear, a bill was filed to raise
the arrears and secure the future gales. B.
also filed a bill for a sale of the indemnity
lands. Part was sold; the annuity and ar-
rears were paid, and the balance of the
purchase-money lodged in Court, on which
dividends accumulated for many years. A.
having afterwards become insolvent—Held,
that the first son of the marriage was entitled
as against the insolvent’s assignee to be re-
couped the sum paid in discharge of the
annuity out of the dividends in Court.— Coote
v. O'Reilly, 71. E. R. 356; 1 Jon. & L. 455. (C.)

8. The principle laid down in In re:Ferrar,
ex parte The Ulster Banking Co., 9 I. C. R. 11,
affirmed.

Where what is in law only a separate debt
has been proved on the joint estate, and a
dividend received, the Court will order the
proof to be expunged.

It is the duty of the assignees to take care
that such proof be not admitted; and where
creditors perform the duty which the assig-
nees ought to have performed, the creditors
will get their costs, and the assignees will get
no costs. The creditor whose proof is ex-
punged will get his costs, if his conduct has
been bona fide, and he has been in no respect
to blame in the matter.

In'this case, the dividend ordered to be re-
funded, the creditor who had proved having

[BANKRUPTCY.]

 

Certificate. 105

waived the question as to whether the Court
had jurisdiction to make such order.—In re
Ferrar, 91. C. R. 554; 5 1. Jur. N.S. 40. (B.)

 

XV. 2. Payment and recovery of, Sc.

 

XV. 3. Unclaimed Dividends.
See 20 & 21 Vic., c. 60, ss. 95 to 297.

All dividends unclaimed for 12 months to be
carried to an account in the Bank of Ireland,
to be called “The Unclaimed Dividend Ac-
count,” and to be subject to the orders of the
Court, both as to investment and as to the
disposal of the interest thereof.

4. In abankruptey of long standing (com-
mission dated 1811), a portion of the estate
was unexpectedly realised in the I. E. Court
in 1853. Dividends were struck on the sepa-
rate estates of three of the partners of the
bankrupt firm on the 30th Oct. 1855. A num-
ber of the creditors did not appear to claim
their dividends. In 1859 an application was
made, on the part of a creditor who had ap-
peared, for a redistribution of the unclaimed
dividends. Held, that since the repeal of the
6 W.4, ¢. 16, by the 20 & 21 Vic., c. 60, the
Court has no jurisdiction to order such a re-
distribution. The right to such dividends
remains in the non-claiming creditors or their
representatives. The present Act does not
provide for the disposal of such unclaimed
dividends. The principle, that non-claimer for
three years affords a reasonable presumption
that the debts have been satisfied, has no ap-
plication in an old bankruptcy. In such a
case the Court, if it had jurisdiction to order
a redistribution, would not excrcise it—Jn re
French, 91 C.R.1. (B.)

XVI. CERTIFICATE.

1. Its effect ; effect of its absence.
2. Signature and allowance of certificate.
3. Staying, recalling, suspending, §c.
a. For what, and for whom.
b. Petition to stay ; practice on.
1. Generally.
2. Service of, &c.
3. Affidavits in support of.

 

XVI. 1. Jts effect : effect of its absence.

5. A bill by an uncertificated bankrupt,
stated that of all the creditors who had proved
under the commission, all had proved save one,
and that there was collusion between the as-
signee and the creditor. Held, that the bill
was not maintainable ; and a demurrer by
the assignee was allowed, but without costs,
as the assignee should have submitted to the
jurisdiction of the Court.— Wyse v . Waters,
11. Jur. 130. (R.)

 

XVI. 2. Signature and allowance of certificate.

6. The Court of Bankruptcy will grant a
certificate to a bankrupt, although he may
have destroyed, mutilated, altered, or falsified
his books, prior to the committal of an act
of bankruptcy, who subsequently and imme-

ld
106 Staying, &c.,

diately confesses “the fraud, and passes his
final examination to the satisfaction of the
Court, by making a full disclosure of his
affairs, unless such mutilation, &c., be com-
mitted in contemplation of bankruptcy, or
with intent to defeat the object of the Bank-
rupt Acts, and with intent to defraud his cre-
ditors.—In re Chapman & Bradford, 2 I. Jur.
220. (B.)

 

XVI. 3. Staying, recalling, suspending, $c.
a. For what, and for whom.
b. Petition to stay: Practice on.
1. Generally.
2, Service of, &c.
3. Affidavits in support of.

 

XVI. 3. a. For what or whom the certificate will
be stayed, recalled, suspended, &c.

1. When the granting of the certificate is
opposed on the ground of reckless trading, and
dealing in fictitious or accommodation bills,
and the oath of the bankrupt is appealed to
to sustain the charge, which he denies, the
opposing creditor is bound by the answer.
Bills drawn on agents, when there are un-
settled accounts, are not accommodation bills.
When bankrupts submit the state. of their
affairs to their creditors, when unable to meet
their engagements, they will not be charge-
able with reckless trading. A balance due on
foot of large transactions will not be held to
be a debt fraudulently contracted.—Jn re
Preager, 11. Jur. N. 8. 251. (B.)

2. Where the bankrupt’s books have been
improperly kept, the certificate will be sus-
pended. The Court has no power to refuse
the certificate if it pass the final examination.

Part of the duty of the Commissioners,
under the former Acts, still devolves on the
Judges of the Court of B. & L, so as to make
it their duty, independently of any opposition
by a creditor, to examine into the conduct of
the bankrupt before granting the certificate.
Inre Lynch, 71. C. R. 489. (B.)

3. Bankrupts obtained goods by fraudulent
representations. Their books appeared muti-
lated, and some of them were not produced.
Their certificate was suspended for a year.—
In re Johnstones, 91. C. R. 556. (B.)

4, The Court is not bound to pass the final
examination of a bankrupt, merely because
he has made a full disclosure of his affairs, if
there be fraudulent circumstances in his con-
duct which, in the opinion of the Court, would
disentitle him to his certificate.

Under the Irish Act, the time to consider
these circumstances is at the passing the final
examination, it being impossible to refuse the
certificate after the final examination has been
passed.

When a bankrupt had systematically issued
bills of exchange with fictitiousnames thereon,
the Court postponed the final examination
sine die.—In re Keon, 101. C. R. 111; 51. Jur.
N.S. 107. (B.)

[BANKRUPTCY.]

Certificate.

5. An arranging trader having entered into
a composition with his creditors, which he
paid, and obtained his certificate, the Court
will not withdraw the certificate, and ad-
journ the case into bankruptcy. Where
there is clear evidence of fraud and suppres-
sion, the certificate may be set aside, but the
application to turn the case into bankruptcy
should be made pending the proceedings.
The omission from a schedule, afterwards
amended in reference thereto, of a doubtful
debt paid to a trader after obtaining the cer-
tificate, will not per se be deemed evidence
cE oe re Gray, 5 I. Jur. N. S. 267.
B.

6, An insolvent having committed a breach
of trust, the c. q. trustent made with him an ar-
rangement whereby they were paid portion of
their debt, and received for the remainder the
best security he could give. Held, a condo-
nation of the breach of trust: the c. g. trustent
were not permitted to oppose.

Concealment of property must be proved
by direct evidence.

A creditor, whose opposition under the
penal clauses fails, will not be allowed to
rely on the discretionary clause, unless he
relied upon it originally.

A reference to the Official Assignee to vouch
the schedule will be made to test the truth of
an insolvent’s case.—Jn re Lynch, 6 I. Jur.
N. 8. 143. (B.)

7. A trader, without his partner’s know-
ledge, disposed of partnership property for his
own use. eld, that his certificate should be
suspended for 18 months.—Re Sim, 7 I. Jur.
N. 8. 282. (B.)

8. When a bankrupt had traded recklessly,
by means of accommodation bills, and had got
extensive credit by representations that he
was solvent, and that said bills were for value,
the Court adjourned his final examination sine
die, upon the state of facts disclosed by his
schedule.—In re Lockhart, 11 I. C. R. 68. (B.)

9. Bankrupts, by means of false representa-
tions, obtained credit and goods for which
they were unable to pay. Their books ap-
peared to have been mutilated, and some of
them were not produced. Their certificate
was suspended for one year.—In re Johnstones,
91.C. R. 556. (B.)

10. In an affidavit to verify a petition pre-
sented to the Court by an arranging trader,
he stated that the schedule of assets contained
a true and full account of the property he had,
to be made available for payment of the com-
position. Where creditors, relying on the
truth of this, accept the composition offered,
and the trader obtains his certificate, the cre-
ditors may, long after the certificate is ob-
tained, bring the case by motion before the
Court, praying that the certificate may be
withdrawn. The Court, on satisfactory evi-
dence that leasehold property was omitted,
and that the affidavit to support the petition
was untrue, withdrew the certificate, and

 

put the case into bankruptcy.—Re an Ar-
ranging Trader, 91. Jur. N.S. 120. (B.)
Certificate.

1. Traders obtained forbearance by falsely
representing their circumstances, and con-
trived to have their trade carried on by mem-
bers of their family, and to place property
beyond the reach of their general creditors.
They made a full and true disclosure of their
trade dealings, but the Court, nevertheless,
adjourned for twelve months the granting of
the certificate, and gave the opposing creditors
costs out of the estate—Re Scotts, 11 I. Jur.
N.S. 20. (B.)

 

XVI. 3. b. Petition to stay: Practice on.

1. Generally.
2. Service of, Se.
3. Affidavits in support of.

 

XVI. 3. b. 1. Generally.

2. The solicitor of an opposing creditor in-.
formed the insolvent’s solicitor, on the morn-
ing of the hearing, of his intention to persist
in his opposition. The case was called on
during the momentary absence of the credi-
tor’s solicitor; there being no one present to
oppose, a discharge was pronounced by the
Judge. The creditor’s solicitor came in im-
mediately after, and asked for a re-hearing.
Held, that a solicitor does not, by communi-
cating with the solicitor on the other side, lay
him under any obligation, or constitute him
his agent to convey such a communication to
the Court, and, therefore, that the Court can-
not, in such a case annulor revive the adjudi-
cation, under the 233rd sec. of the Bankrupt
and Insolvent Act, on the ground that it was
improperly or fraudulently obtained. The
discharge pronounced by the Judge under the
212th section is, in itself, a final and conclusive
adjudication. It is not necessary to its com-
pleteness that the written order and the war-
rant to the gaoler (under sec. 219) should be
made out by the officer of the Court. When
such an adjudication has been pronounced by
the lips of the Judge, he has no power to set
it aside under the 236th sec., on the ground
that the discharge was a mistake.—Jn re Lo-
gan, 91. C. R. 569; 51. Jur. N. 8.41. (B.)

 

XVI. Banxrvurt Petitions IN GENERAL.

1. Petitions generally.

. Signature and attestation of.

. Service of Petition: proof of service.

. Affidavits and evidence on.

Amendment.

Costs of.

. Practice on petition in Court.

. Practice on petition generally.

. Setting down, hearing, advancing, and ad-
journing petitions: respecting prelimi-
nary objections. :

Frame of petitions : form of order on.

When proper to be udopted: what effected
by.

Rebewiag:

10.
11.

12.

 

XVII. 1. Bankrupt petitions generally.

3. When a petition is ordered to stand over,
a new petition is not necessary to be presen-

[BANKRUPTCY.]

 

Petitions. 107

ted previously to bringing the matter again
before the Court. If any tiew fact has oc-
curred, on which it is requisite that the Court
should adjudicate, a supplemental petition is
necessary to state that fact.—Jn re Gavacan,
2 Dr. & War. 432. (C.)

4. One member of a trading firm presented
a petition under the arrangement clause
(s. 843), in respect of partnership debts. It
not appearing that the remaining partners had
agreed to take on themselves the payment of
the partnership debts, the Court refused to
entertain the petition—Jn re Parrott, 8 I. C.
R. 391. (B.)

 

XVII. 2. Signature and attestation of.

 

XVII. 3. Service of petition: proof of service.

 

XVII. 4. Affidavits and evidence on.

 

XVII. 5. Amendment.

 

XVII. 6. Costs of.

5. An order having been made on petition
in 1847,. superseding a commission of bank-
ruptcy, with costs to be paid by the petitioning
creditors; and the bankrupt having been dis-
charged in 1849, under the statute, before
those costs were paid; the Court was moved
to vary the order of 1847. Held, that it should
be varied by directing the petitioning creditors
to pay the solicitor the amount of the taxed
costs.—Ex p. Orr, in re Petticrew, 1 I. C. R.
102. (C.)

 

XVII. 7. Practice on petition in Court.

 

XVII. 8. Practice generally on bankrupt
petition.

6. A commission of bankrupt against a sur-
viving partner need not describe him expressly
as surviving partner, though the petitioning
creditor’s and other debts be debts of the firm,
Although it may not fall within the 33rd,
73rd, or 103rd secs. of the Bankrupt Act it
can be worked under a special order if neces-
sary, so as to administer partnership property.
In re M'Intire, 121. E. R. 318. (C.)

 

XVII. 9. Setting down, hearing, advancing, and
adjourning petitions.

7. When an insolvent dies before adjudica-
tion, and his petition is dismissed, the Court
will, though the order of dismissal is of record,
reinstate the petition, so as to have the insol-
vent’s estate administered as if no dismissal
had taken place.—Re Young, 11 I. Jur. N. S.
822. (B.)

 

XVII. 10. Frame of petitions: form of order on.

 
108 General

XVII. 11. When proper to be adopted: what
effected by.

 

XVII. 12. Rehearing.

 

XVIII. Mortons in
PROPER.

BaNKRUPICY : WHEN

XIX. GENERAL JURISDICTION.
(Since 6 W. 4, c. 16.)

a. Of Lord Chancellor.
b. Court of Review.

 

XIX. General Jurisdiction.

1, When a surplus of an insolvent’s estate
is claimed by third parties, strangers to the in-
solvency, it is too late for either party to ob-
ject to the jurisdiction of the Court to deal
with the fund, after they have agreed to a re-
ference to the officer of the Court to report
on their respective rights——Jn re Naughton, 2
Jur. N. 8. 196. (B.)

2. After an order for protection under the
arrangement clauses has been made, the Court
has not jurisdiction to dismiss the petition, ex-
cept for the causes mentioned in the 20 & 21
Vic., c. 60, 8.353. A petition, presented under
those clauses having been dismissed for a rea-
son not mentioned in sec. 353, one of the Assis-
tant Registrars of the Court, by direction of the
Judge, attended on the hearing of an appeal
against the order of dismissal, to inform the
Court of Appeal that no question of jurisdic-
tion had been raised in the Court below. Held,
that the petition had been improperly dis-
missed, and that the order dismissing it ought
to be reversed.—In re Craig, 8 I. C. R. 393;
Dru. Rep., temp. Napier, 394; 41. Jur. N.S.
101. (C.A.)

3. The 20 & 21 Vie., c. 60, is not an unqua-
lified repeal of the 3 & 4 Vic. c. 107; it is
rather a re-enactment of portions of the old
Act, so far as relates to proceedings pending
at the time of the passing of the present Act.
Sec. 217 of 20 & 21 Vic., c. 60, does not in all
cases operate retrospectively. When proceed-
ings were pending in insolvency at the time of
the passing of the 20 & 21 Vic., c. 60, and
creditors had at that time incurred liabilities
and acquired rights, those liabilities and
rights are regulated by 3 & 4 Vic., c. 107. The
rule as to election in sec. 71 of 3 & 4 Vic.,
c. 107, still prevails. The creditor is not
bound to elect until he has an opportunity of
seeing which fund is more productive.—ZJn re
Browne, 91. C.R. 271. (B.)

4. The Court of Bankruptcy has not juris-
diction to take an admission of debt off the
file, on the ground that it was filed under cir-

-eumstances which, if known to the Court,
would have entitled the debtor to obtain an
extension of time from the Court.—In re
Hutchings, 10 1.C. R. 108. (B.)

[BANKRUPTCY.]

 

Jurisdiction.

5, A Scotch decree on an arrestment juris-
dictionis fundande causa against a deft. not
present in Scotland, and who did not appear
in the suit, does not create any personal liabi-
lity in this country.—In re Littles, 10 ¥. E. R.
275. (C.)

6. The adjudication in Ireland, by sec. 267,
vests the property of the bankrupt, situate in
a foreign State, in the assignees, so far as the
law of this country is concerned.

The law of New York recognises, to a cer-
tain extent, the rights of the assignees under
the adjudication.

A British creditor of a bankrupt, who has
by the means of the laws of any foreign State,
succeeded in obtaining possession of the goods
of a bankrupt, situate in that State, is, in this
Court, answerable for them to the assignees.

Remarks on the status of assignees in this
Court, as recognised by foreign law.—Jn re
Robinson, 11 I. C. R. 385; 6 IL. Jur. N.S. 42.
(B.)

7. On the 8rd Nov., D. filed a declaration of
insolvency. On the 22nd Nov., F., a creditor
of D., with notice of the act of bankruptcy,
seized the goods of D., undera fi. fa. On the
24th Nov., D. presented a petition for ar-
rangement, and obtained the usual protec-
tion order. Held, that the order operated
against the previous seizure so as to prevent
the execution creditor proceeding to a sale.

The Bankrupt Court has jurisdiction to
make an order restraining the execution cre-
ditor from proceeding.

Remarks on the daches of both parties in de-
laying their application to the Court.

The rights of the execution creditor in such
a case will be protected (in the event of the
arrangement proving abortive) by the lodg-
ment of a sum of money in Court to meet his
demandin that event.—Jn re Delahoyd, 11 I. C.
R. 404. (B.)

8. The time of a traders’ “residing or carry-
ing on business in Ireland” (sec. 31), means
the time of presenting the petition.

The Irish Court has exclusive jurisdiction
over such trader, though he owe debts con-
tracted in England, while he was residing and
trading there.—Jn re Sanderson, 111. C. R. 421.
(B.) [Affd—7 I. Jur. N. 8. 48. (C.A.)]

9. A trader, having engagements to meet in
England, started for London, carrying £1390
in gold and £100 in notes, in a carpet bag.
He stated in his examination that the bag was
stolen, and on several occasions positively
stated that he could give no other account of
the loss. In all other respects his schedule
was accurately vouched, and his general con-
duct satisfactory. The Court, being dissatisfied
with the account of the loss, and the conduct
of the bankrupt in relation thereto, refused to

ass the final examination.—In re Coote, 12
IC. R. 454. (B.)

10. An Assistant-Barrister having ascer-
tained the merits of an insolvent’s case, ad-
journed it tothe next Quarter Sessions, and
General

directed the protection to be withdrawn. This
Court refused to entertain an application for
a bail rule, or for liberty to apply to the Court
of Q. B. for awrit of habeas corpus to bring up
the insolvent to be heard in Dublin. The 20
& 21 Vic., c. 60, s. 202, does not apply to such
acase.—In re Paul, 7 I. Jur. N.S. 20. (B.)
[Writ of hab. cor. refused by the Q. B.; 71.
Jur. N.S. 152. (B.)]

1. The Courts of B. & I. in Ireland have not
jurisdiction over compositions between bank-
rupts and their creditors, save to see that the
amount offered corresponds with that adver-
tised, and to annul (with or without costs) the
adjudication of bankruptcy.

Semble—The offer must be of a composition
by a money payment, and not by bills of ex-
change.—Jn re Fahy, 71. Jur.N.5..46. (C.A.)

2. A trader, having for several years re-
sided and traded in England, took premises in
Ireland in Nov. 1860; closed his place of
business in England; removed his family to
Ireland’; and, pursuant to advertisements pub-
lished in the Irish newspapers, thenceforward
carried on his trade in Ireland only. Five-
sixths of the amount of his debts were
contracted in England. In April 1861 he
was adjudged a bankrupt in England; and
in May 1861 in Ireland. On appeal from
the latter adjudication—Held, that he was
residing and trading exclusively in Ireland
within 20 & 21 Vic., c. 60, s. 31.—Jn re Sander-
son, 71. Jur.N.8. 48. (C.A.) [Affg. Jn re
Sanderson, 111. C.R.421. (B.)

3. Atrader in England came to reside in
Ireland (where he never traded), after he had
discontinued trading ; and, after residing in
Ireland for three years, committed an act of
bankruptcy by filing a declaration of insol-
vency. A friendly petition for adjudication
was then presented. eld, that there was no
trading to support such an adjudication.

Though all the requisites of trading existed,
yet, if the bankruptcy was resorted to to free
the bankrupt from his liabilities, and not to
benefit his general creditors, the Court will
exercise its equitable jurisdiction by annulling
the bankruptcy upon the petition of dissent-
ing creditors, though some creditors may fa-
vour the continuation of the bankruptcy pro-
ceedings. The petitioning creditors must pay
the costs— Re Day, 71. Jur. N.S. 163. (B.)

4. The 19 &20 Vic. c. 60, s. 31, does not
necessitate a trading in or to Ireland, to give
the Court jurisdiction to make the trader
bankrupt, although he may reside exclusively
in Ireland.

An English trader came to Ireland to get
an adjudication to rid him of his liabilities.
The adjudication was annulled; and the tra-
der, being arrested at the suit of a creditor,
presented his own petition for adjudication.
The Court refused to adjudicate on the same
ground on which the first adjudication had
been annulled.i—Re Day, 71. Jur. N. 8. 207.
(B.)

5. A creditor, in order to yote against an

[BANKRUPTCY.]

 

Jurisdiction. 109

arrangement which he alleged to have been
illegally carried, proved his title, The ar-
ranging traders applied for an order to quash
the affidavit of debt, and an injunction to re-
strain the creditor from proceeding. Held,
that the Court had jurisdiction to grant the
application, although the 104th sec. directs
them to proceed by way of an application for
an extension of time to pay or compound the
debt; and if such an application had been
made, an extension would have been granted
beyond the time for carrying out the arrange-
ment.

When mere irregularities, not affecting the
merits of the case, take place in the reception
of proofs, they may be corrected in a subse-
quent ex parte application by the arranging
traders.— Re A. & B., Arranging Traders 7 I.
Jur. N.S. 208. (B.)

6. The Irish Court of Bankruptcy has juris-
diction only over traders who reside and trade
in Ireland ; or who, residing there, trade with
England. Therefore, one who, residing and
trading in England, then and there contracted
trade debts, cannot be adjudicated a bank-
rupt in Ireland in respect to those debts,
though he may for some years have resided in
Ireland and contracted debts there.—Jn re
Day, 71. Jur. N. 8. 309. (C.A.)

7. The Court of Bankruptcy has no juris-
diction to make a certificate from the creditors
of the bankrupt a condition precedent to pass-
ing the final examination.

Semble—The Court has no power to adjourn
the final examination of the bankrupt sine die
for any misconduct of the bankrupt, if his dis-
closures be full and true.—ZJn re Burke, 141. C.
R.107. (C.A.)

8. Quere—Has the Court of Bankruptcy in
Ireland jurisdiction to issue a search-warrant
respecting goods which are on the premises of
a third party in England?—Jn re Webster, 10
I. Jur. N. 8.17. (B.)

9. The Court has an equitable jurisdiction
to direct that a particular creditor shall be
paid a portion of his debt in full, if the
trader’s proposal would not be reasonable or
proper as regarded that creditor, to be exe-
cuted under the Court’s directions. Such time
may be given for payment as the Court shall
direct.—Re an Arranging Trader, 111. Jur. N.
8.323. (B.)

 

XIX. 1. a. Of Lord Chancellor.

10, After the lapse of the time allowed by the
statute for surrendering, the Lord Chancellor
has jurisdiction to direct the Commissioners
to accept the bankrupt’s surrender.— Re Mor-
gan, 1 Dr. & Wal. 582, (C.)

11. A commission against a bankrupt in
1833, upon which no proceedings had since
been taken. Any application to revive them
should be made to the Court of B.andI. The
Chancellor’s power to renew the commission
110

was taken away by the 20 & 21 Vic., c. 60.—
In re Dickie, 31. Jur. N. 8.183. (B.)

 

XIX. 1. b. Of Court of Review.

1. S. & Co., bankrupts, filed, in addition to
their schedule, a special balance sheet, and
were repeatedly examined—first before one
Judge of the Bankrupt Court, and afterwards,
on his decease, by his successor, both of whom
permitted the. bankrupts to pass their final
examination and obtain their certificates. On
a petition to the Court of Appeal to suspend
the granting of their certificates: Held, that
when the appellant in bankruptcy relies on
facts and figures which might have been
brought before the Court below, at the final
examination; or which, if brought forward
below, were disregarded by the Judge; the
Court of Appeal in Ch. will require a very
strong case to induce them to remit the case.

This Court has not power to refuse a bank-
rupt his certificate, when once he has passed
his final examination.—Jn re Scotts, 5 I. Jur.
N.S. 52. (C.A.)

2. No appeal lies against the granting of a
certificate to a bankrupt unless the appellant’s
objection be made in writing at the final ex-
amination.—In re Woodroffe, 71. Jur. N. 8.
49, (C.A.)

 

XX. Susprvision Courts anp Commis-
SIONERS.

 

XXI. ReceistrarR, REFERENCE TO:
Report, &c.

 

XXII. ApreaL anD SPECIAL CasE.

3. Where the point on which an appeal is
taken was not raised in the Court below, the
Court will order the registrar to attend in the
Court of Appeal, but will not annex a state-
ment to that effect to the schedule of evidence.
—ZIn re Craig, 81. C. R. 214. (B.)

 

Baron anp Feme. See Huspanp and WIPE,
passim.

 

Barrinc Eyrairs. See Estate Tat, passim.

4, In 1792, a father, B., tenant for life of
an estate p. a. v., and his son, C., then under
age, tenant in quasi tail in remainder, under a
marriage settlement of 1767, joined in execu-
ting a deed, whereby the lands were conveyed
to D. upon trust for B. for life ; remainder to
C. absolutely, if he survived B. If C. died
without issue in B.’s lifetime, then to B abso-
lutely. A power in the deed enabled B. and
C. to revoke these uses, and declare new ones.
Three years later, B. executed a deed, where-
by he purported to convey all his interest to
G., but still remained in possession, and after-
wards obtained to himself a renewal from the
head landlord. Subsequently B. and C. joined
in selling part of the lands comprised in the
settlements which created the quasi entail, and
exercised their power of revocation under the
deed of 1792. In 1815, C., upon the occasion

 

[BANKRUPTCY—BARRING ENTAILS.]

of his marriage, B. being then alive, executed
a settlement, to which B. was not a party, by
which he conveyed the lands upon trusts for
himself for life; for his intended wife; for
the issue of the marriage; in default of issue,
for himself absolutely. C., surviving B., died
in 1832. Held, that the quasi entail had been
effectually barred by the deed of 1792, which
was voidable only, not void.

A tenant in quasi tail, in possession of an
estate p. a. v., may bar the quasi? entail by any
conveyance or disposition znter vives, but not
by will.

A tenant in quasi tail in remainder of an
estate p. a. v. can, with the concurrence of the
tenant for life, bar the quase entail by any act
inter vivos.

If tenant in guast tail in remainder of an
estate p. a. v. takes, with the concurrence of
the tenant for life, a renewal, or if the latter
takes the renewal, and conveys to the former,
the guasi entail will be barred.

The tenant in quasi tail in remainder can-
not, without the concurrence of the tenant
for life, affect the quasi entail. :

Quere—Will the conveyance for value of
his estate in remainder, during the life of the
tenant for life, bar the remainders after the
time when he could have barred them ?—
Allen vy. A., 41. E. R. 472; 2 Dr. & War. 307;
1 Con. & L. 427. (C.)

5. A trader, believing that he was seised in
fee of lands, mortgaged and charged them
with debts, and became bankrupt. It after-
wards appeared that he was only tenant in
tail. On application to the Lord Chancellor,
that the Commissioner might execute the deed
necessary to bar the estate tail, he was di-
rected to execute the deed of confirmation
under the 4 & 5 W. 4, ¢. 92, ss. 48, 49.—Jn re
Whittle, 21. Jur. 118. (C.)

6. A tenant in tail joined his father, tenant
for life, in conveying the estate to a third
party, and subsequently took a conveyance to
himself. Held, that this barred the estate
tail.

Quere—If, on the death of the creditor’s
assignee, the estate which had been vested in
him vests in the new assignee, without any
further conveyance ? —Atkinson v. Lennon, 51.
Jur. 369. (C.)

7. A disentailing deed, executed in pursu-
ance of the Act for the Abolition of Fines
and Recoveries (4 & 5 W. 4, c. 92) is valid, if
enrolled within six months from the time of
its execution, although such enrolment has
not taken place until after the death of the
tenant in tail who executed the deed.

The 4 & 5 W. 4, c. 92, s. 60, applies only to
disentailing deeds executed by the same tenant
in tail, and not to deeds executed by succes-
sive tenants in tail. A., a tenant in tail,
executed a disentailing deed, which was en-
rolled within the six months prescribed by
the statute, but not until after A.’s death.
B., a succeding tenant in tail, executed a dis-
entailing deed to a purchaser for value after
A.’s death, which was enrolled prior to the
Generally.

enrolment of the deed executed by A. Held,
that the deed executed by A. was entitled to
priority over the deed executed by B.

The Act for the Abolition of Fines and
Recoveries has no application to the enrol-
ment of a disentailing deed by a tenant in fee,
nor to any disposition of lands, otherwise than
by a tenant in tail, in pursuance of the Act.—
In re Piers’s Estate, 141. C. R. 452; 81. Jur.
N.S. 401. (C.A.)

1, Atestator charged estates, of which he was
seised pur autre vie, with annuities and other
incumbrances, subject to which he devised
them to trustees, to permit his son James to
receive the rents, &c., for his life; with re-
mainder to testator’s son John for life, on
failure of issue of James; with remainder to
testator’s daughters and to his grandson C.,
as tenants in common in quasi tail, on failure
of issue of John.

James and John, as much as in them, or
either of them, lay, by deed assigned the lands
to D. upon the trusts therein declared.

D., owner of the mere legal estate, by mar-
riage settlement, conveyed the lands to trus-
tees, on trust for himself for life, with
remainder to his daughter for life; with re-
mainder to the children of the marriage. In
this settlement, C., equitable tenant in quas?
tail in remainder to one-third of the lands
under the will, was an executing, though not
a granting party. Held, that C. and D. having
joined in the settlement, it was a sufficient
bar of the quasi entail, and that C. had there-
by conveyed his estate as effectually as if he
had been a granting party.—Bonynge v. Finu-
cane, 101. Jur. N.S. 141. (C.)

 

BARRISTER.

Caszs AND Opinions oF CounsreL—See Banx-
ruetcy VI., VII.—Pracricz, SicNaTURE
oF CoUNSEL—PRINCIPAL AND AGENT—
PurcHases By Fravup.

I. In GENERAL.

. Ricuts, PRIvILEGES, DISCRETION OF, AND
JURISDICTION OVER.

. RETAINER OF, AND FEES TO.

. CASES FOR OPINION OF—CONFIDENTIAL
CoMMUNICATIONS.

. How Far CLIENT IS BOUND OR PREJU-
DICED BY.

 

I. BarristER IN GENERAL.

2. Personal estate, being undisposed of by
a will which the testator’s confidential coun-
sel, the sole executor, drew without inform-
ing the testator of its legal effect, was held a
trust for the next-of-kin.—Segrave v. Kirwin,
Beat. 157. (C.)

3. Counsel’s employment as confidential
legal adviser disables him from purchasing for
his own benefit charges on his client’s estates,
without his permission. Though the confi-
dential employment ceases, the disability con-
tinues so long as the reasons on which it is
founded continue to operate.— Carter v. Palmer,

[BARRISTER.]

 

Rights, §e. 111

1LE.R. 289; 1Dr.& Wal. 722. (C.)—[Affd.:
Cl. & Fin, 657. (HL.)]

4, As a general rule it is improper to intro-
duce into counsel’s briefs both the original and
amended bills. Higgins v. Bateman, 2 Dr. &
War. 70. (C.)

5. If a trustee of property for a married
woman’s separate use appears by counsel, the
counsel cannot be heard.—Crawford v. O’ Sul-
livan, 2 Con. & L. 410. (C.)

6. Order of hearing counsel : first, leading
counsel for plaintiff ; then the junior upon the
evidence; then the three counsel for defen-
dant; and the second counsel for plaintiff to
reply.— Taylor v. T., 2 Con. & L. 422. (C.)

7. Before this Court will call upon a Judge
to furnish his notes of the trial of an issue
directed in the cause, the counsel for the
party who desires to impeach the proceedings
at the trial must state, on his own respon-
sibility, a case for that purpose. If this state-
ment satisfies the Court that the notes are
necessary for the purpose of the motion, it
will then call upon the Judge to furnish
sia aes v. Jagoe, 1 Jon. & L. 691.

8. Counsel for an incumbrancer whose charge
is stated in the bill, but not proved in the
cause, will not be heard against the plaintiff’s
rights— Dundas v. Blake, 11 I. E. R. 188. (C.)

9. The Attorney-General should be fully ap-
prised of all the proceedings relating to chari-
ties. Pleadings and briefs must be sent to his
counsel.— Potts v. Turnley, 1 I. Jur. 57. (C.)

 

Il. Barristers’ Ricurs, PRIvILEGEs, AND
DiscRETION—JURISDICTION OVER.

10. Counsel’s certificate at foot of excep-
tions to an answer, need only state that the
exceptions are proper and necessary, and not
taken or served for delay, according to G. O.
72 (Nov. 1834); but need not state “that he
has read the bill and answer, and has read
and approved of the exceptions,” according to
the old rule-—Adamson y. Jameson, 1 I. E. R.
199. (R.)

11. Whenever a testator directs a settlement
to be made as counsel shall direct, this is to
be done, not according to the import of the
words used by the testator, but in that man-
ner which will effect what is considered to be
his intention.—Rochford v. Fitzmaurice, 4 1. E.
R. 385; 2 Dr. & War. 1; 1 Con. & L. 158. (C.)

12. Counsel for the plaintiff, moving pur-
suant to the general allocation report, ought
not to hold a brief on behalf of a third per-
son, whose claims are inconsistent with the
reported rights of a creditor, though the
plaintiff may not be in any manner interested
in the question.

In the Equity Exchequer it is the privilege
112 Rights, se.
of members of the outer bar to call proofs.—
Day v. Ponsonby, 5 1. E. R. 24. (E.E.)

1. Quere—Ought motions of course to be
moved by members of the inner bar? Anon.
51. E.R. 595. (E.E.)

2. Counsel for a trustee of property for the
separate use of a married woman, who ap-
pears by counsel, cannot be heard.— Crawford
v. O'Sullivan, 2 Con. & L. 410. (C.)

8. The Court will not hear a motion founded
on documents. Counsel must be furnished
with a brief, and the solicitor be in attendance
with the documents.—Curtis v. Darcy, 6 I. E.
R. 149. (R.)

4. Counsel, acting for a minor heir-at-law,
are justified in exercising their discretion
whether or not he ought to take an issue of
devisavit vel non?—Knipe v. M‘Mahon, 4 Dr. &
War. 295. (C.)

5. The defendant taking an objection for
want of parties is entitled to begin.— Galway
v. Graydon, 71. E.R. 368; 1 Jon. & L. 526. (C.)

6. When a cause is heard at the Rolls, the
pleadings at both sides must be opened by
junior counsel.—Russell v. Beakey, 8 I. E. R.
B63. (R.)

7. A defendant’s counsel published in a
newspaper what purported to be a report of
the proceedings in this Court. This report
was exaggerated, incorrect, and injurious, and
contained unjustifiable imputations upon the
plaintiff. A motion was made to attach him
for contempt of Court. Held, that though the
publication might be libellous, yet the Court,
not being satisfied that it was calculated to
obstruct the free course of justice, ought not
to commit him for contempt.

Whatever may be counsel’s privilege, while
addressing a Court or jury, to comment upon
the character of parties or witnesses, that pri-
vilege does not justify the publication by him
of the speech, if it contains defamatory mat-
ter.— Birch v. Walsh, 10 I. E. R. 93. (R.)

8. The order prohibiting « practising bar-
rister from being security for a receiver, sus-
pended.— Kelly v. K. 21. Jur. 140. (C.)

9. Exceptions to an answer were filed with-
out having counsel’s certificate annexed. An
application for liberty to amend them by
adding counsel’s name was refused.—O’Flynn
v. Wall, 21. Jur.170. (R.)

10. On an appeal from an order allowing
a demurrer, counsel for the plaintiff begins.—
M‘Namara v. Blake, 12 1. E. R. 362. (C.)

11. Motions for summary orders on petitions
are moveable by Queen’s Counsel.— Bell v. B.,
381. Jur. 52. (C.)

12. On an appeal, only the appellant’s Coun-
sel can be heard in support of his case; but

[BARRISTER. ]

 

Retainer of.

not Counsel for parties in some other interest
who have not appealed.—Stewart v. Marquis
of Donegal, 13 I. E.R. 106. (C.)

13. The satisfaction of counsel means reason-
able satisfaction.— Gordon v. Mahony, 13 I. E.
R. 383. (C.)

14. At the hearing of cause petitions of
which notice has been served, junior counsel
should be retained to open the petition, as in
causes.— Russell v. Bevan, 1 I. C. R. 623 note,
31. Jur. 188. (C.)

15. Junior counsel ought to be retained in
moving for the reference of cause petitions
under the 15th section.—Cannon v. Bourke, 5
I. C. R. 226. (C.)

16. A Q.C. may in this Court move to make
aconsent a rule of Court. —— vy. —, 21.
Jur. N.S. 74. (R.)

17. The Court will permit counsel, in open-
ing a case, to state, on his responsibility, any
matter in proof in the cause, which he con-
siders properly admissible in evidence, sub-
ject to subsequent objection to the proof of
such matter.—Low v. Holmes, 81. C. R. 53;
Dr. Rep. temp. Napier, 290. (C.)

18. A special case should be framed thus :—a
statement of the facts, followed by a series of
interrogatories signed by a counsel on each
side.—In re Trusts of Guinness’s Will, 81. Jur.
N.8.24. (R.)

19. Two counsel only are to be heard on each
side in the Court of Ch. Appeal.—Bentley v.
Robinson, 10. I. C. R. 287; 5 I. Jur. N.S. 7.
(C. A.)

20. When the appeal is from the whole de-
cree or order, the petitioner’s counsel begins.
Brereton v. Barry, 10 1.C. R. 376. (R.)

21. On the hearing of an appeal from the
whole of an interlocutory order, the appellant’s
counsel is entitled to begin.— Skelton v. Flana-
gan, 15, 1. C. R. 303. -(C. A.)

 

Ill. Barrister: retainer of: fees to.

22. Though the taking by a barrister of a
bond for past and future professional services
is to be condemned, the bond will not be re-
lieved against on grounds of public policy. In
administering the obligor’s assets, the bond
was decreed to stand as a voluntary bond.—
Leslie v.Verschoyle, Beat. Rep., 535. (C.)

23. An insolvent deft.’s provisional assignee
is not entitled to a fee for counsel to approve
a deed which the assignee is called upon to
execute under a decree. Wallace v. Macan,
FL & K. 554. (R.)

24. The pltf.’s solicitor is entitled to give
out briefs and fees to counsel upon the same
day that he sets down the cause to be heard
pro confesso.—Ivie v. Gahan, 9 I. E. R. 223. (R.)
” Retainer of, &c.  [BARRI

1. In taxing costs between party and party,
counsel is not allowed a fee for settling a
draft report. Practice before Ist G. O. (April
1847), touching fees to counsel in the Master’s
office.—Clanmorris v. Mahon, 10 I. E. R. 144.

C.)

2. Semble—A fee should be allowed for
counsel to draw a petition under I. E. Court
Act.—In re Darcy, 11. Jur. 212. (R.)

3. On a motion to allocate funds, a cross
notice being moved at the same time, though
questions of difficulty be raised, and the
motion last several days, no refresher fees to
counsel will be allowed on taxation, nor will
the taxing officer be directed to review his
taxation, though he certify that the rule is a
hardship on the parties in the particular case.
Houston v. Barry, 61. Jur. 25. (R.)

4. Refresher fees on motions will not be
allowed on taxation between party and party.
Order at the Rolls—Houston v. Barry, 6 I.
Jur. 49. (R.)

5. A general cause petition was filed against
several respondents. The chief respondent,
when about to file his affidavit, laid the draft
affidavit before counsel, and with it a case for
his opinion to advise proofs. Several other
affidavits were subsequently filed. The peti-
tion was afterwards heard and dismissed, as
against this respondent with costs. The costs®
of this case and opinion not having been
allowed by the taxing master on taxation
between party and party ; Held, in accordance
with the opinion of the other two taxing mas-
ters, but without laying down any general
rule, that the respondent was entitled to the
costs of the case and opinion; but that, if
the petition had been dismissed for want of
prosecution, the respondent would then not.
have been entitled to such costs; that a case
for direction of proofs should be allowed for
at some stage of the proceedings ; that the
filing of the answering affidavit by the respon-
dent is in the nature of issue joined, and
appears to be the time at which such case
should be allowed.

As a general rule, the costs of an attend-
ance on a third party, to borrow a necessary
document, are not allowed; but, if expense is
thereby saved, the taxing master may exercise
his discretion in allowing such costs—Abbott
v. Geraghty, 71. Jur. 373. (R.)

6. The taxing masters having reduced
counsel’s fees, on taxation between party and
party, not because the amount was excessive,
but because the fee had been increased at
the instance of the counsel, the Court re-
ferred it back to the master to review his
taxation as to these items.

Semble—It would be illegal for the Bar, as a
body, to fix a minimum fee for any particular
class of business; but any individual mem-
ber of the Bar may decline to take a fee less
than a certain amount.

The taxing masters, in taxation between
party and party, should only allow the usugl

 

STER.] Opinion. 113
and accustomed fee payable on each particu-
lar class of business, though a larger fee has
been paid to counsel.—O’ Brien v. Cantwell, 12
LG.R. 221; 61. Jur. N.S, 334. (R.)

7. The practice is, on taxation between
party and party, to allow the costs of two
counsel only, on the hearing of a cause peti-
tion matter. Under special circumstances, the
Court ordered the master to allow the costs of
a third counsel. In taxation between party
and party, no fee is allowed for settling the
draft affidavit of the petitioner, in reply to
the respondent’s affidavit in answer.—Cloran
yv. Clancarty, 18 I. C.R. 1. (R.)

8. Exceptions to Master’s report cannot be
opened by senior counsel without a junior.
Brereton vy. Barry, 14 I. C. R. 874; 81. Jur.
N. 8. 226. (C.)

9. When final judgment is postponed after
argument, additional court fees on the day of
the delivering of judgment are necessary ; and
also refreshers to counsel.— Gamble v. Robinson,
91. Jur. N.S. 55. (P.)

10. On taxation of costs, only two counsel
shall be allowed on a motion, except under
very special circumstances.—Jn re Grady, 10
I. Jur. N.8. 49. (C.)

 

IV. Cases ror OPInion or; CONFIDENTIAL
CoMMUNICATIONS.

11. B., a barrister, legal adviser for a series
of years to C., advised C. in one case, in par-
ticular, which C. sought to compromise. B.
was not allowed to buy up that out-standing
claim after the relation of counsel and client
had ceased. If, in such a case, counsel pur-
chases, the purchase will be declared a trust
for his former client.

The Court would restrain, by injunction,
counsel from divulging the secrets of a former
client.— Carter v. Palmer, 11. E. R. 289, 802;
1 Dr. & Wal. 722. (C.)—[Affirmed, 8 Cl. &
Fin. 657. But see 11 Bligh, N.S. 399; and
Ross v. Steele, 1 I. E.R.171. (C.)]

12. A cause petition had been moved under
the 15th sec., for which the solicitor charged
£2, 2s. in his bill of costs. The taxing master
struck off £1. 1s. Held, on a motion to review
the taxation, that the Court had no power to
alter the amount of a fee to counsel. The
case was sent before the taxing masters to
report upon.—Murray v. Shadwell, 6 I. Jur.
125. (R.) ;

 

V. How Far CLIENT Is BOUND BY HIS
acts, &e.

13. Reliance by counsel upon some only of
several grounds of defence is not a waiver of
the rest. That having happened, and an ap-
peal having been taken to the Lords, a petition
for a re-hearing was allowed, to amend the
notes of the decree, without withdrawing the
appeal._—Galwey y. Barron, Long. & T. 76.
(E.E.)

15
114

1. When counsel, at the original hearing,
abandon an objection respecting parties, or
proof of a document, that objection cannot be
made on a re-hearing.

It is not necessary that counsel who certify
for a re-hearing should have been engaged in
the case at the former hearing.—NJalone v.
Geraghty, 3 Dr. & War. 252; 2 Con. & L, 252.
(C.)

2. Though a purchaser is not bound by the
opinion of his counsel on the abstract of title,
waiving an objection, yet if the objection does
not go to the root of the title (e. g., if it be for
the non-production of an old deed), if the
purchaser continues to treat, and leads the
seller to further expense for some time after
the first waiver, he cannot afterwards rely on
it.—Alexander v. Crosbie, 7 I. E. R. 445; 1 Jon.
& L. 666. (C.)

8. Admissions of counsel; how far binding.—
Mahony v. M., 21. Jur. 129. (C.)

4. Semble—When one of the defts. is a
feme covert, and the suit is respecting her
inheritance, the consent of her counsel to
the direction of such an issue would not be
binding on her.—Rossborough v. Boyse, 31. C.
R. 540. (R.)

5. Counsel’s opinion was admitted as evi-
dence that a disentailing deed was executed
for the purpose of a mortgage ; counsel havin
on behalf of the lender, required the mortgage
deed to be enrolled, but the disentailing deed
having been executed in lieu of the enrol-
ment.— Power v. P., 71. C. R. 354. (R.) [But
sees. c. 9 I. C. R.178; Dr. Rep. temp. Napier,
268; 31. Jur. N. 8. 369. (C.A.)]

6. A convreyancer’s mistake does not entitle
a party to relief in equity—Ellis v. The Lord
Primate, 101. Jur. N.S. 61. (C.A.)

7. Semble—A Scotch advocate’s opinion on
a question of Scotch law is not receiveable in
evidence, unless expressed in the form of an
affidavit, and in general terms, not pointed at
the circumstances of the particular case.—
Lockhart’s Trust, ex parte Lockhart, 11 I. Jur.
N. 8. 245. (R.)

 

BASTARD.

See HusBanD anD Wire I.—Issur—
CuHILDREN—WIL1, XV.
I. In GenERAL—EVIDENCE OF.
II. Girts, DevisEs, aND BEQueEsts To.

 

I. In GENERAL—EVIDENCE oF.

8. Semble—That the Att.-General, without
taking out administration, sufficiently repre-
sents for the purposes of a suit the personal
estate of a bastard.—Jf‘Kiernan v. Kernan,
FL. & K. 352, (R.)

9. A natural child cannot have a guardian,
except by appointment of the Court. The
testator, the reputed father, having named

 

[BARRISTER.—BASTARD.] ,

his executor the guardian, the Ld. Ch., with-
out a reference to the Master, appointed the
testator’s nominee to be guardian.—Barry v.
B.,1. Mol. 210. (C.)

 

II. Girrs, DevisEs, AND BEQuEsts To.

10. Defect in a legal conveyance, not sup-
pligd in favour of a natural child.—Blake vy.
B., Beat. 575. (C.)

11. A general gift of the corpus of a fund to
the children of A., described as “her chil-
dren,” after a previous gift of the interest to
her for the maintenance of her children, W.
and R. Held, to be confined to the two before-
named, and not to include after-born children.

Semble—Every gift to illegitimate children
not iz esse is void. There is no distinction

| between cases where they are described by

reference to a particular father, and where
not.—Jn re Connor, 81. E. R. 401; 2 Jon. & L.
456. (C.)

12. A., by will, dated 29th of May 1839, be-
queathed to his illegitimate son R. certain
leaseholds; and directed that if R. should
die without “heirs or issue,” over. Held that,
as the 29th section of the Wills Act is ex-
pressly confined to the word “issue,” it makes
no change in the meaning of the expression
“die without heirs of the body ;” and there-
fore (‘without heirs” in the said will, mean-
ing ‘without heirs of the body,” R. being
illegitimate), the will did not confer the abso-
lute interest on R., with an executory devise
over, in the case of his dying without issue
living at his death; but an estate tail, and,
the property being leasehold, the absolute
interest.

This decision is supported by Harris v. Davis,
1 Col. 416; and Morris v. Morris, 17 Beav.
198.—In re Sallery, 11 I. C. R. 236. (L.E.C.)

 

BENEFICE.
See EccrestasticaL Persons, &e.

 

BENEFICIAL INTEREST.
See Execurors, VII.

 

BENEFIT SOCIETIES.
See FRIENDLY SOCIETIES.

 

BEQUEST.
See Legacy—WIi1Lt.

 

BILL IN EQUITY.
See Practice—Cause Petition.

 

BILL
— Of Costs. See Soriciror—Practice, Costs.
— Of Exceptions. See Practice, Biv oF Ex-
CEPTIONS.
[BILLS.—BONDS.]

BILLS OF EXCHANGE, AND OTHER
NEGOTIABLE SECURITIES.

Of Short and Cross Bills, See BANKRUPTCY,
XL, XII

Injunction to Restrain Negotiation of. See
Practicr, Ixgunction.

Proofupon. See BANKRUPTCY.

See Statutes, Construction of, II.

I. In GeneRAL—THEIR NaturE aNnD Pro-
PERTIES—OF FOREIGN BILts.

TI. AccErTaNnce AND INDORSEMENT OF.

III. Parties to—tuHEir Duties anp LraBILi-
TIES—oF PRESENTMENT AND NOTICE
or DisHonour.

IV. TrtLe To, oR TO THE PROCEEDS oF.

V. Ricguts AND REMEDIES IN RESPECT OF
Lost Bi1ts.

 

I. In GENERAL: THEIR NATURE AND PRO-
PERTIES: RESPECTING ForrIcn BILLs.

1. A bill of exchange is not to be treated
as an accommodation bill, if there be any
effects of the drawer in the acceptor’s hands,
no matter what the amount, or in whose
favour the balance may be.—Ex parte Williams,
Beat. Rep. 477. (C.)

 

Il. AccerTancE anp INDORSEMENT OF.

 

Ill. Parties to Brivis oF EXCHANGE: THEIR
Dories anp LiaBILities: oF PRESENT-
MENT AND Notice oF DisHoNnourR.

2. In Burrough vy. Moss (10 B. & C. 558), it
was held that the equity affecting the indorsee
of an overdue bill, must be an equity con-
nected with and attaching upon the bill itself ;
and that the equity of the defendant to a set-off
as against the indorser cannot be enforced as
against such indorsee.—Beresford v. Chambers,
51. E.R. 485. (E.E.)

 

IV. TitTLe To, oR TO THE PROCEEDS OF.

 

V. Ricuts anp REMEDIES RESPECTING Lost
BILLs.

3. A bill of exchange is not to be treated
as an accommodation bill, if there be any
effects of the drawer in the acceptor’s hands,
no matter what the amount, or in whose favour
the balance may be.—Ez p. Williams, Beat.
Rep. 477. (C.)

 

BILL OF SALE.

See Sure anp Sure Owners—Saip RecIstRY
—Banxrvprcy, XI.

4, The 17 & 18 Vic., v. 55, does not repeal

the order and disposition clause of the 6 W. 4, }-

c. 14, s. 86. Where neither the bill of sale
itself, nor the affidavit, contained the descrip-
tion of the creditor who was therein described
as “esquire” simply, and did not give the
residence and occupation of the second sub-
scribing witness. Held, that the registration
was invalid.

Fraudulent preference principle stated in
Re Ryan, 3 1.C.R., 38, aftirmed.—Inre O’ Connor,
11. Jur. N. 8. 198. (B.) :

 

115

5. “P.,, of the city of Cork, law clerk,” is
an insufficient description of the witness to a
bill of sale in the registering affidavit. The
residence of the witness must be described in
such a manner as that a stranger may thereby
be enabled to discover it with reasonable cer-
tainty. The bankrupt had given a bill of sale
of the furniture in his hotel at Q. to S. for
valuable consideration. He still continued to
retain the furniture and use it in the hotel,
and §. did not interfere with the furniture or
with the management of the hotel. Held,
that the furniture came within the reputed
ownership clause, and should be ordered to be
sold for the benefit of the general creditors.

The mere fact that the dealings between
the bankrupt and §., with regard to a bill of
sale, were beneficial to the general estate, and
assented to by several of the parties interested,
does not raise an equity sufficient to bar the
operation of the statute.

Quere—As to the operation of a notorious
transaction, such as the registration of a bill
of sale, in affecting the-question of reputed
ownership ?—Jn re Hams, 10 I. C. R. 100; 5 I.
Jur. N.S. 59. (B.)

 

BIRTH OF ISSUE.
Revocation or Witt Bpy—See Witt, VIII.

 

BLOOD.

See Privity oF ContRAcT—BLOOD AnD TITLE.

 

BOND.

— On Administration. See ADMINISTRATION, I.

— On ne exeat regno. See Practice, Writ.

— Of Petitioning Creditor. See BANKRUPTCY,
IV.

— Simoniacal, and for Resignation. See EcciE-
SIASTICAL PERsons.

— Interest beyond, Penalty of. See INTEREST
Pecuniary, DI.

See Huspanp anp Wire, I. I1V.—Mrercer —
Posr Osir Bonps—Practic—E—ReE-
CEIVER.

As to Specialty Creditors generally. See
DestTor anv Crepiror, IL, 1.

» I. GENERALLY.

II. ConstRuctION AND EFFECT OF.
III. Vawipity oF: acarnst Pugzic Poricr:
OBTAINED BY FRaup, &c.
1. In general.
2. With reference to the object or con-
sideration.

3. Li tc by fraud, or impro-

perly.
4. In respect to usury.
IV. Wyo Bourp sy: RIGHTS BETWEEN
PARTIES TO: HOW QUALIFIED, LOST,
OR DEFEATED.
1. In general.
2. How right to is qualified, lost, or
defeated.
W. RELIEF AGAINST GENERALLY,: AND
AGAINST PENALTY.
1. In general.
116

bo

. When satisfied by the penalty, and
when not.
3. Relief against penalty.
4, Interest upon: to what extent given.
VI. Presumep. PaymMEenT AND SaTIsFac-
TION.
VII. Lost anp DrsTROYED.

VIII. Ass1GNMENTS AND Bequests or: Ricuts

oF ASSIGNEE OR LEGATEE.

 

I. GENERALLY.

 

IJ. Bonn: 1Ts ConstrucTION AND EFrect.

1. A. B., and C., together with D. (deceased)
and two sureties, gave their joint and several
bond, with warrant of attorney, to the Pro-
vincial Bank, as security for the balance of an
account current, not to exceed £1000. Under
the warrant of attorney, the bank entered six
separate judgments against the obligors. <A.,
B., and C. became bankrupts. The bank
sought to prove on the joint estate for the
balance of the account current due at the time
of the bankruptcy. Held, that the bank was
precluded from proof of the debt, as simple
contract; that the bond was merged in the
separate judgments, and that the proof could
only be against the separate estates of the
bankrupts.—In re Clarkes, 71. E. R. 39. (B.)
—[Revd. 8 I. E. R. 60; 2 Jon. & L. 212. (C.)]

 

Il. Varripiry oF: acarnst Pupric Poricy:
OBTAINED BY FrRavp, «c.

1. In general.

2. With reference to the object or considera-
tion.

3. When obtained by fraud, or improperly.

4, Respecting usury.

 

Ill. 3. When obtained by Fraud, or Improperly.

2. When the amount of principal and inte-
rest due on foot of a bond has reached the
penalty, and a part payment is afterwards
made, interest is not again payable.—Gregg v.
Glover, 51. E.R. 127; Fl & K. 614. (R.)

8. Bonds in penalties, payable with interest,
taken by an attorney from his client, pendente
lite, for untaxed costs, shall stand as securities,
for such sum only as shall, upon taxation,
appear to be due without interest thereon —
Fowler v. Moore, 2 Jon. 415. (E.E.)

4, A bond passed by a nephew to his uncle,
a solicitor, who had brought him up, though
admitted to be without pecuniary considera-
tion, not set aside on bill by the nephew
alleging fraud, though the transaction was
suspicious.—Ross v. Steele, 1 I.E. R.171. (C.)

 

IV. Wuo Botnp by — Ricuts BETWEEN
Parties—How Qvauiriep, Lost, or
DEFEATED.

1. In general.
2. How right to is quclified, lost, or defeated.

 

 

[BONDS.]

IV. Wuo sounp sy Bonp—RIcuts BETWEEN
THE Parties TO 11 — How QUALIFIED,
LOST, OR DEFEATED,

5. In several cases it has been held, that
where money was lent on credit given by two
persons, who passed a joint bond for it, the
instrument was to be considered as joint and
several, according to what appeared to have
been the intention of the parties—O’Leary v.
Purcell, 3 1. E. R. 884. (R.)

 

IV. 1. Jn general.

 

IV. 2. How qualified, lost, or defeated.

 

V. RELIEF AGAINST GENERALLY, AND AGAINST
PENALTY.
1. Generally.
2.. When satisfied by the penalty: when not.
8. Relief against penalty.
4. Interest upon: to what extent given.

 

V. RELIEF AGAINST.
1. Generally.

6. Though the taking by a barrister of a
bond for past and future professional services
is to be condemned, the bond will not be
relieved against on grounds of public policy.
In administering the obligor’s assets, the bond
was decreed to stand as a voluntary bond.—
Leslie v. Verschoyle, Beat. Rep. 535. (C.)

7. The Court refused to decree the can-
cellation of a bond, for which at the time
of its execution no money passed; on the evi-
dence of the petitioner alone, against the
respondent’s answering affidavit, stating that
the bond was the petitioner’s free and volun-
tary act, done for past services, and advances
of money.—Wyse v. Lambert, 16 I. C. R. 378.
(R)

 

V. 2. When satisfied by the penalty: when not.

 

V. 3. Relief against penalty.

 

V. 4. Interest upon: to what extent given.

 

VI. PresuMED PAYMENT AND SATISFACTION.

 

VII. Lost AND DESTROYED.

 

VIII. AssigNMENTS AND Bequests or—As-
SIGNEES’ oR LEGATEES’ Ricuts.

 

BONUS AND ACCRETION.

See ACCRETION.

 

BOOKS.

As to comments on. See Coprricut, III.
[BOUNDARIES.—CHAMPERTY.]

BOROUGH—ENGLISH.

 

BOTTOMRY.
See Bon.

 

BOUNDARIES.

See PracticE—ComMMISSION TO ASCERTAIN
BounDARIEs.

1. Confusion of boundaries, unless it arose
from the defendant’s misconduct, is not per se
a ground for a bill to ascertain boundaries.—
O'Hara v. Strange, 11 I. EB. R. 262. (R.)

2. When boundaries have been confused,
or land has been encroached on by the
tenant, the question of boundary or encroach-
ment should be determined, either by eject-
ment, or, if there be an outstanding legal
estate, by an issue, before a fee-farm grant is
executed under the Ren. Lease. Conv. Act.—
Ireland v. Wilson, 1 I. C. R. 623. (R.)

 

BREACH.

— Of Agreement. See AGREEMENT, V.

— Injunction against Breach of Agreement. See
Practice, Injunction.

— Of Trust. See Cuanriry, I.—Trust, XIII.

— Injunction against Breach of Trust. See
Practice, Insunction.

— Of Condition. See Conpitiow, VII.

— Of Covenant. See Covenant, VII.

— Injunction against Breach of Covenant.
Practics, Insunction.

— Relief against consequences of Breach of Cove-

See

 

 

nant. See Covenant, VIII.
— Of Injunction. Sce Practicx, Insunctron.
BRIBERY.
BROKER.

 

BUYING TITLES.
See CHAMPERTY.

 

BYE-LAWS.
See CORPORATIONS,

 

CANALS, SEWERS, WAYS, AND
WATERCOURSES.

[ Raiway & Canat Trarric Act (1854);
17& 18 Vie., c.81.]

 

CANCELLATION.
See Deeps, VII.—Wi11, VIII.

 

CANONS.
See EconusiasticaL PERsons,

117

CAPIAS UTLAGATUM.
See OuTLAWRY.

 

CAPITA OR STIRPES, PER.
See Distr1pution— WILL.

 

CARRYING DECREE INTO EXECUTION,
See Practicn, Drecrer.

 

CARRYING AWAY TITHES.
See Trruss, IV.

 

CASES OVERRULED.
See Decisions Dousrep, &¢.

 

CASE.

— For opinions of Judges.
Issvz at Law.

— For opinion of Counsel.

See Practice,

Sce Barrister.

 

CAUSE.

— Adjournment, advancing, consolidating, resto-
ring, retaining, or speeding. See Prac-
TICE, CausE, ADJOURNING OF.

— Conduct of. See Practicz, Causz,. Con-
DUCT OF.

— Standing over, or struck out. See PRactice,
Costs.

— Setting down. See Practice, Hearing.

 

CERTIFICATE.

— Of Bankruptcy. See Banxurtcy, XVI.

— Lis effect. Ibid.

ee Ibid.

— Signing. Ibid.

— Patition to stay. Ibid.

— Property acquired before and after Bank-
ruptcy. See Bankrurtcy, XI.

— Of Commissioners. See Bankruptcy, VII.

— Of Master. See Pracricn, Masrer, Re-
FERENCE.

 

CERTIORARI
See PracticeE—CERTIORARI.

 

CESTUI QUE TRUST.
See Trustexz, VII.—Preapine, Parris,

 

CHAMPERTY AND MAINTENANCE,
See Starures, Construction or, I.

3. In 1805 W. filed against J. a bill impeach-:
ing various proceedings, and praying that
conveyances, mortgages, and bonds should be
set aside, or stand as securities for so much
only as, on taking an account, should be found
fairly due. After these proceedings had been
carried on for many years, without any decree
having been pronounced, W. died, having be-

 
118

queathed all his real and personal estate, save
his estate in the county of T., to his wife, V.,
for life, remainder to her brother in fee; and
he devised the excepted estate to B., a solici-
tor, on condition that B. would release all
claims under a deed of 1821, which conveyed
valuable properties to him. By deed of 1832,
between B., V., and V.’s brother, C., reciting
these facts, and that, to avoid litigation and
expense in establishing their rights under the
deed of 1828, and W.’s will, and to forward
the prosecution of the suit then depending to
recover W.’s estate and property, and for the
purpose of determining all questions and dif-
ferences existing between these parties, they
had agreed, if the suit succeeded, to diyide
between them the whole of such estate and
property, &c., the estates were conveyed to V.
and C. upon trust to carry on the suit; upon
its termination to assign one moiety to B.:
and meanwhile to be, as to a moiety, trustees
for B., who covenanted to give his full and
active personal aid and assistance in all mat-
ters relating to the suit. Afterwards V. and
C. filed a bill of revivor and supplement
against the original defendants, J., B., and
others. Held, that the contract under the
deed of 1832, amounted to champerty; and
that upon that ground the bill must be dis-
missed with costs.—Moore vy. Creed, 1 Dr. &
War. 521. (C.)

1. A. entitled to a moiety of the residue of
a testator’s personal property, assigned it.
Held, that the assignee was entitled to insti-
tute asuit against the executor for an account
of what had been lost by his wilful default,
and that such suit was not liable to the ob-
jection of champerty.—Scully v. Delany. 2. I.
E. R. 379.

2. Quere—Respecting the validity (on the
ground of champerty) of a covenant in a mar-
riage settlement for title to lands of which
the settlor was not then in possession, and his
right to which was then in litigation —Martyn
y. Macnamara, 2 Con. & L. 551. (C.)

3. Semble—That where a security for future
costs is given in consideration of the solicitor
prosecuting a cause, on the subject-matter of
which the security is given, it is maintenance.
Uppington v. Bullen, 2 Dr. & War. 184. (C.)

4. Money was advanced on the security of
a bond, with warrant to enter judgment there-
on. The money was applied to carry on a
suit by a person claiming a wife’s share of her
deceased alleged husband’s property. The
bond was also to stand as a security for further
money advances for the same purpose. Held,
that this contract was illegal, on the ground
of maintenance.—Clarke v. M‘Nally, 1 1. Jur.
N.S. 225. (C.)

 

CHANCERY, COURT OF:
PRACTICE AND PROCEDURE IN.
Statutes.
Administration of justice in the Court of

 

[CHAMPERTY.—CHARGING ORDER.]

Chancery—6 G. 4, c. 830; 6 & 7 W.4, c. 74;
13 & 14 Vic., c. 51, s. 28.

Appeal in, Court of, constituted by 19 & 20
Vic., c. 92.

Amending procedure in—21 & 22 Vic., ¢. 27.

Transferring Equity Jurisdiction of the
Court of Exchequer to the Court of Ch—13 &
14 Vic, c. 51; see 18 & 19 Vic., c. 50.

Enabling Court of Chancery to try questions
of fact by the aid of a jury, and to have
damages assessed—21 & 22 Vie., c. 27.

Enabling the Masters to renew leases in the
names of persons who are out of the jurisdic-
tion—1 & 2 Vic., ec. 62.

Annuities and salaries of officers of—13 &
14 Vie., ¢. 51.

Appointment of taxing masters and of prin-
cipal assistant to masters—11 & 12 Vic., c. 132.

Regulating who shall administer oaths—
16 & 17 Vice. v.78.

Abolishing certain offices—20 & 21 Vic., c.
60, s. 2.

Practice and procedure in—13 & 14 Vic., c.
89; 19 & 20 Vie, c. 92; 21 & 22 Vic. c. 27;
30 & 31 Vic., c. 44.

Service of process of —4 & 5 W. 4, c. 82.
Receivers, appointment, &c.—19 & 20 Vic.
77.

“Contempts of —5 & 6 W.4, v.16; 17&18
Vie., v. 115.

Cc.

 

CHARGE.
See Morteace, X.
— On Copyhold. See CopyHoip.
— Onreal Estate. See Estate, VIII., 2—Por-
tions, III.
— In Bill in Equity. See Przapine, Brxx 2.
— And Discharge. See PRacticE—CHaARGE,
AND DISCHARGE.

 

CHARGING ORDER.

See Destor anp CrEepitor—Practice, AtT-
TACHMENT OF PROPERTY.

See 3 & 4 Vic., v. 105.

Sec. 23. Stock and shares in public funds and
public companies, belonging to the
debtor, and standing in his own
name, may be charged by order of
the Court of Chancery.

Sec. 24. The order shall, in the first instance,
be made ex parte; and shall, on
notice to the bank or company,
operate as a distringas.

[Similar powers are given to the Courts of
Law, by the Com. Law Pro. Act 1853, ss. 182,
133, 184, and 135 ; and powers to attach, by gar-
nishee order, debts due to the judgment debtor
is given to the Law Courts by the Com. Law
Pro. Act 1856, ss. 63 to 69. See 23 & 24 Vic.,
c. 82.]

5. A judgment creditor, seeking to have
his debt charged under the 3 & 4 Vic., c. 105,
s. 23, upon a fund, impounded and standing
in the name of the Acct.-Gen. of the Court of
Ch., ought to present his petition to that
Court in the first instance. If he resorts to a

,
[CHARGING ORDER.]

Court of Law for the charging order, he must
afterwards obtain from this Court liberty for
the Acct.-Gen. to act under it, so as to pre-
vent a clashing of jurisdiction. The Acct.-
Gen. of this Court has not any right to attend
to an order inconsistent with or varying an
order of this Court, without its special direc-
tion so to do.—Gore v. G., 4 I. E. R. 164, (R.)

1. In a foreclosure suit a surplus remained
after payment of the reported incumbrances.
The mortgagor being dead, a puisne judgment
creditor sought, under the 38 & 4 Vic., c. 105,
ss. 28, 24, an order to charge, with'the amount
of his judgment, that surplus, which was the
residue of the price of real estate sold under
the decree. Held, that that surplus must be
deemed either real estate belonging to the
judgment debtor’s heir-at-law, or personalty
belonging to his personal representatives; and
that the 3 & 4 Vic., c. 105, does not empower
the Court to attach by charging order a de-
ceased debtor’s property in the hands of his
representative.

Semble—It is very questionable whether the
3 & 4 Vic. c. 105, s. 23, extends to money.—
Wallace v. M‘Cann, 4 I. E. R. 522; Fl. & K.
570. (R.)—[See M‘Allister v. Murray, 5 I. L.
R. 92.]

2. When a charging order has been obtained
by a judgment creditor upon funds reported
to a creditor in a cause, the Court, when
there is no controversy as to the right to the
fund charged, will direct it to be paid to the
petitioner, without bill—Fulton v. Farran ;
Blake v. French, 1. Sur. 66. (R.)

8. To obtain a charging order, under the
3 & 4 Vic., c. 105, s. 23, it is not necessary that
the judgment should be revived. The Court
granted the order on the petition of the hus-
band and wife, ona judgment obtained by the
wife, dum sola, without its having been re
vived.—Irwin v. Nesbit, 13 1. E. R. 125. (R.)

4, Although the exact amount of a share
to which a party is entitled in government
stock, standing in the names of trustees, or
in the books of the Acct.-General, to the cre-
dit of a cause, is unascertained; yet, if it be
ascertained by decree that |that party is en-
titled to a share of such stock, that share may
be charged under the 3&4 Vic. c. 105, ss.
23, 24.— White v. O’ Grady, 2 I. C. R. 333. (R.)

5. A., a judgment debtor of B., was entitled
to an annuity payable to C., who drew a cheque
in A.’s favour for a gale of the annuity, and
wrote to B. that the cheque was in his, C.’s,
hands. Held, that this cheque could not be
attached under the 3 & 4 Vic., c. 105, s. 20.—
Ex parte Smythe, inre Cottrell, 5 I. Jur. 41. (R.)

6. An equitable mortgagee, by deposit of
railway shares, is entitled to priority over a
prior judgment creditor of the mortgagor who
has obtained an order charging the shares,
under the 38 & 4 Vic., c. 105, s. 28, subsequently
to the mortgage.

Quere—Whether the doctrine of Dearle v.
Hall (3 Russ. 1) applies to an equitable as-

 

11g

signment of railway shares ?—Dunster v. Glen-
gall, 3 I, O.R. 47; 5 I. Jur. 8387. (R.)

7, Funds in Court in an administration suit
were decreed to be paid to A., as “ adminis-
trator of his late wife;” but the Master’s re-
port had not been made showing what money
was payable to A., or whether he was entitled.
to any sum in his own right. B., a judgment
creditor of A:, sought to obtain a charging
order, under the 3 & 4 Vic., c. 105, ss. 23, 24,
upon the funds in Court to the credit of the
suit, or whatever portion thereof A. should be
found entitled to. Held, that A. had not
such an interest in the goods in Court as that
they could be charged by an order under that
Act.—Burns v. Owen, 61. Jur.192. (R.)

8. A., who had acharge upon lands, became
an insolvent, but afterwards had his petition
dismissed upon the consent of the assignee.
The lands were sold in the Landed Estates
Court. Creditors of A. obtained charging
orders upon his interest in the proceeds, and
A. assigned his claim to B. for an insufficient
amount. Held, that the creditors of A., who
had charging orders, were entitled to avoid
the assignment to B., and that in any event it
could only stand as a security for the amount
paid by B.—Roche v. Hassard, 51. C. R. 14;
1I. Jur. N.S. 246. (C.)

9, On the 30th June, F. obtained a condi-
tional order under the C. L. P. Act, to attach
afundin Ch. It was served on the judgment
debtor on the 11th July, was made absolute
on the 8th August, and was lodged with the
Accountant-General on the 14th Nov.

On the Ist August another creditor ob-
tained a conditional orderin Ch. against the
same fund, under the 3 & 4 Vic. v. 105. That
order was lodged with the Accountant-Gene-
ral on the 7th August, was served on the
judgment debtor on the 21st August, and made
absolute on the 13th Nov. Held, that the
order made in Ch. was the first charge upon
the fund.—French v. Balfe, 31. Jur. N.S. 48.
(C.A.) [Affg. Rolls decision, 6 I. C. R. 63; 2
I. Jur. N.S. 299. (R.) J

10. When a fund was standing in the Court
of Chancery to “the separate credit of the
administrator of A.”—Held, that B., who was
the sole next-of-kin of A., but not the ad-
administrator, had such an interest in the
fund as could be attached by a charging order.
—Brownrigg vy. Colclough, 71. C. R.524. (C.)
[Affd. 71. C. R. 528; 381. Jur. N.S. 329,
(C.A.)]}

11. The Court has not jurisdiction under the
3&4 Vic. c. 105, ss. 23, 24, to make a charging
order against cash standing to the credit of
the suitors’ fee-fund, and ordered to be paid
to a judgment debtor, on account of his pen-
sion as a retired Registrar of the Court of
Chancery iu Ireland.

Semble—Such a pension though paid out
of the Consolidated Fund if the suitors fee-
fund proves insufficient, is not a government
annuity within the meaning of that Act.—
120

Quin y. O'Keeffe, 91. C.R. 331; 41. Jur. N.S.
167. (R.)

1, Ajudgment debtor was a retired officer
of the Court of Chancery, and thus entitled
to a pension charged upon the suitors fee-
fund, by s. 185 of the Ch. Reg. Act, 1850. A
quarterly instalment of the pension having
become due, the judgment creditor obtained a
charging order in the Q. B., under the C. L. P.
Act, 1853, against that instalment. Held,
that the Court of Ch. had not jurisdiction
to enforce that order.

Semble—That instalment was not liable to
be attached, under the C. L. P. Act, 1853, not
being money in Court in a suit or matter
under the ordinary jurisdiction of the Court.
—Quin v. O'Keeffe, 101. C.R. 151; 5 I. Jur.
N.S. 65. (C.)

(This decision was appealed from, and
argued before the Court of Appeal; and, hay-
ing stood over for judgment, was directed to
be re-argued ; when a compromise was entered
into.—10 I. C. R. 262. (C.A.)]

 

CHARITABLE USES.
See CHarity.
See 7 & 8 Vic., c. 97, and 30 & 31 Vie. c. 54.
ENROLMENT OF DEEDS RELATING TO CHARI-
TABLE Trusts: 29 & 30 Vic., c. 57.

 

CHARITY.
See Sratutes, Construction or, II—Prac-

Tick, Costs.

 

I. JuRIspDICTION OF THE CouRT IN CASES OF
Cuarity.

1. When the Court has jurisdiction, and will
exercise it.
a. In general.
b. On petition, and summarily under sta-
tute.
2. Jurisdiction, §¢., of visitors, Se.
8. Scheme for management of.
4. Performance ; cy-pres.

 

Il. How CHarity CONSTITUTED: WHETHER
VaALip or Vor.

1. Generally, and when valid.

2. When vord.
a. Under the mortmain statutes.
b. For uncertainty, Sc.

8. Of the intention and objects.

4, Trustees of charity ; appointment and re-
moval of ; breach of trust.

IIL. Revenves or CuHanirTIEs.

. Generally ; how administered.
. Augmentation and application of any
accretion, or of any surplus.
. Marshalling assets in favour of.
. Leases ; setting them aside.
; ae and misapplication of charity
s.

Cum oO Soe

 

[CHARITABLE USES.—CHARITY.]

IV. Br, InrorMation AND PETITION CON-
CERNING CHARITIES: PRACTICE THEREON.
1. Generally.
2. Information.
3. Bill, petition, §c.
4, Relator.
5. Commission of charitable uses.

 

Enrolment of deeds relating to charitable
trusts, 29 & 30 Vie., c. 57.

Real property in Ir. may be devised to chari-
table or religious purposes.

See 1&2 Vic, ¢.78;7& 8 Vie. c.45; 7&8
Vic.,c.97. See, 30 & 31 Vice., c. 54.

Legacies for charitable institutions are
exempt from legacy duty,5&6 Vic., c. 82.

Amending the law as to R. C. Charities,
23 & 24 Vic. c. 184.

 

I. Courr’s JURISDICTION IN CASES OF CHA-
RITY.

1. When the Court has, and will exercise
jurisdiction.
a. Ln general.
b. On petition,
statute.
. Jurisdiction, §c., of visitors, Se.
. Scheme for managing.
. Performance, cy pres.

and summarily under

He oo bo

 

I.1. a. When the Court has, and will exercise
jurisdiction in cases of charity: generally.

2. The Courts of Chancery in England and
Jreland have an original jurisdiction in cases
of charities, independent of that conferred
upon them by the 48rd liz. (Eng.) and 10

‘ar. 1, sess. 8, ec. 1 Wr.}—Incorporated Society
v. Richards, 1 Dr. & War. 258; 1 Con. & L.
58; 4LE.R. 177. (C.)

3. A. bequeathed the residue of her perso-
nal property to W., to be by him applied for
such pious purposes and uses as should appear
to him to be most conducive to the honour and
glory of God, and the salvation of her soul.
Upon a bill to administer to her assets this was
decreed to be a good charitable bequest, and
a reference was made, with W.’s consent, to the
Remembrancer to settle ascheme. W. died
before the Remembrancer reported. Held,
that therefore the fund belonged to the Crown,
to dispose of it by sign manual.—Felan v.
Russell, 41. E.R. 701. (H.E.)

4. The Court of Ch., as parens patria,
exercises a legal as well as an equitable juris-
diction in matters relating to charity.—Att.-
Gen. v. Flood, Hayes, 611. (C.)

 

I. 1. b. Jurisdiction of the Court on petition,
and summarily under the statute.

5. The Court has jurisdiction to authorise
the establishment of a charity cy-pres, ona pe-
tition presented under the 52 G. 3, c._101.—
Inve Lady Belvidere’s Charity, 21. E. R. 354.

(C.)
‘Visitors.

I. 2. Jurisdiction, &c., of Visitors, &c.

1. Queen Elizabeth enchartered the Hospi-
tal of the Holy Trinity at New Ross; consti-
tuted the master, brethren, and poor thereof,
and their successors, thenceforth for ever, a
body incorporate; and authorised and em-
powered its masters, and the heirs of G.,
with the advice and consent of the Sovereign,
and four of the members of the Council of
New Ross for the time being, or the major
part of them, to elect a secular priest for the
master, brethren, and poor who should be re-
ceived as brethren thereof. The charter
further granted that“ the heirs of G., with the
consent and advisement of the Sovereign and
four elder councillors of the town of New
Ross, or the greatest part of them, for ever,
may have power and authority . . . . 0
electing and making a master of the hospital,
from time to time for ever.” The heirs of G.
cannot now be found. Held, that the Lord
Chancellor, in his capacity of visitor as Chan-
cellor, has full power to appoint such persons
. ne may be advised to represent the heirs
of G.

That the Town Commissioners, constituted
by the 3 & 4 Vic., c. 108, represent the Sove-
reign and old Corporation.

The charter was silent as to what should be
the religion of the master, brethren, and poor of
the hospital. Held, that although the fouu-
der’s religion must be presumed to have been
the Established religion, members of all re-
ligions were equally admissible to the hospi-
tal, since the charter conferred no preference
on the members of any particular faith, and
although the contrary usage had prevailed.

The Master’s scheme provided for the elec-
tion and reception of a Roman Catholic priest
into the hospital; the charter only provided
for the election and reception of a secular
priest of the Established Church. Held, that
the exception, on that ground, to the Master’s
scheme must be allowed—The Ait.-Gen. v.
Tottenham, 111. Jur. N.S. 107. (C.)

 

I. 3. Scheme for managing.

2. In 1710, some members of a Presby-
terian congregation in Dublin set on foot a
subscription to form a fund for charitable
purposes. A deed of trust declared this fund
to be for the support of religion in and about
Dublin and the South of Ireland, by assisting
and supporting the Protestant Dissenting in-
terest against unreasonable persecutions; and
for the education of the youth designed for
the ministry among Protestant Dissenters, and
to be chosen out of five specified congrega-
tions. The moneys subscribed were vested in
trustees. At the date of the trust deed there
was not any Toleration Act for Ireland. In
time Unitarian doctrine sprang up in several
of these congregations, and for many years
past part of the income of the fund had been
applied to Unitarian purposes. The majority
of the present trustees were Unitarians. Upon
an information filed against the trustees—
Held, that the phrase “ Protestant Dissenters”

[CHARITY.]

 

Management. 121

had not such a known legal meaning as to
prevent the admission of evidence as to its
meaning; and that theological works of the
period might be admitted in evidence to show
the meaning of those words as understood and
used by the authors of the trust; that Unita-
rians are not entitled to be deemed objects of
the trust; that it was not open to Unitarians,
claiming under the trust, to contend that it
was originally invalid because there was not
an Irish Toleration Act at the date of the
trust-deed; that long enjoyment by the Unita-
rians had not created a right, since time does
not sanction established breaches of trust;
that Trinitarian trustees, who had concurred
in these breaches of trust, should be removed,
as well as the Unitarian trustees.—Drummond
v. Attorney-General, 2 H. L. Cas. 837; 14 Jur.

f1137. [Afic. Attorney-General v. Drummond, 1

Dr. & War. 353. (C.)—See Aitorney- General
v. Drummond, 3 Dr. & War. 162; 1 Con. & L.
210;2C.&L.93. (C.)]

8. A direction touching the charitable trusts
upon which real property, devised, is to be
applied, contained in a codicil referred to by
the will, but not attested, does not bind the
Master upon a reference to settle a scheme ;
but should, if proper, be adopted by him.—
Attorney-General v. Madden, 2 Con. & L. 519.
(C.)

4. A., by indenture, reciting that it was
intended to erect a school near C. for the
education of poor children, granted to the
Incorporated Society a rent-charge of £30 to
be applied for the maintenance and support of
the said school “in such manner as in such
like schools they should direct.” From want
of funds the society discontinued the school
at C. Held, that A.’s general object was
charity, and that the rent did not cease upon
the discontinuance of the school. There was
a reference made to the Master to settle a
scheme.— Lhe Incorporated Society v. Price, 7 1.
E. RB. 260; 1 Jon. & L. 498. (C.)

5. V. devised a house in trust for, and
appointed it to the use of, a charity school for
females. In time the premises became ruinous
and unsuited for the purpose of such a school,
but were valuable for commercial purposes.
There was no fund for repairing the house.
The trustees presented a petition under the
52 G. 3, c. 101. The Court refused to refer
it to the Master to inquire :—Whether it would
be for the benefit of the charity to sell the
house, but granted w reference—Whether it
would be for the charity’s benefit to set the
house, and apply the rent in procuring a suit-
able place for carrying on the school ?—Jn re
Suir Island Female Charity School, 3 Jon. & L.
171. (C.)

6. The Master’s scheme provided for the
election and reception of a Roman Catholic
priest into an hospital of which the charter
only provided for the election and reception
of a secular priest of the Established Church.

16
122 Execution.

Held, that an exception on that ground to the
Master’s scheme must be allowed.—The Aitt.-
Gen. y. Tottenhum, 111. Jur. N. 8. 107. (C.)

 

I. 4. Jurisdiction to Execute Charitable Inten-
tions cy-pres.

1. The Court has jurisdiction to authorise
the establishment of a charity cy-pres, on peti-
tion presented under the 52 @. 3., ¢. 101.—
In re Lady Belvidere’s Charity, 2 1. E. R. 354.
(E.E.)

2. When the intention of a testator to devote
his property to charitable purposes is manifest,
although the particular purpose be omitted to
be specified, equity will endeavour to effec-
tuate the general intention of the testator, by
referring it to the Master to approve of a
scheme for the application of the fund.— Com-
missioners of Charitable Donations v. Sullivan,
1 Dr. & War. 501; 41. E.R. 280. (C.). +

3. A direction touching the charitable trusts
upon which real property, devised, is to be
applied, contained in a codicil referred to by
the will, but not attested, is not binding on
the Master to whom it is referred to settle
a scheme; but, if proper, should be adopted
by him.—A ttorney- General v. Madden, 2 Con. &
L. 519. (C.)

4. The doctrine of cy-pres applies to the
construction of a will made in exercise of a
power.—Stackpoole v. S., 6 I. E. R. 18; 2
Con. & L. 506. (C.)

5. Grantor, by indenture, reciting that a
school was intended to be erected in the
neighbourhood of C., for the education of
poor children, granted to the Incorporated
Society a rent-charge of £30, to be applied
for the maintenance and support of the said
school, “in such manner as in such like
schools they should direct.” In consequence
of the want of funds, the Society discontinued
the school at C. Held, that the general ob-
ject of the grantor was charity, and that the
rent did not cease upon the school being dis-
continued, and it was referred to the Master
to settle a scheme.—The Incorporated Society
vy. Price, 1 Jon & L. 498.; 71. E. R. 260. (C.)

6. Bequest of an annuity to the monks of
S. to provide clothing for the poor children
attending their schools. Held, valid.

Held, that the bequest showed a general
charitable intent, which the Court would
effectuate, though the school should be acci-
dentally discontinued, or should cease to
answer the testamentary description of it.

Bequest of an annuity to the Parish Priest
of D., to provide for the expense of an organ
and organist for the chapel of B. Held, valid.

A. bequeathed £20 to C. for life, and after
his death to the monks of M., to be appro-
priated for the improvement of the chapel of
M. V., the abbot of M., at the time of A.’s
death, died before C. Held, that his succes-
sor had no right to the £20, and that there
was no general charitable purpose for which

[CHARITY.]

 

 

Cy-pres.

a scheme should be directed.—Carbery v. Coz,
381 C. R. 231; 41.Jur. 274, (C.)

7 By deed, reciting the grantor’s intention
to found and benefit certain charities, lands
were conveyed in trust to pay annuities for
their maintenance, “ without any abatement,
deduction, or defalcation whatsoever.” The
trustees were directed to pay other annuities
for the benefit of other charities. The estate
proved insufficient to pay all the annuities.
The Master decided that those ordered to:be
paid “without any abatement, &c.,” had pri-
ority. Held, that they had not any priority.

The doctrine of cy-pres in reference to
charities expounded.—In re Evans’s Charities,
101.C.R. 271. (C.)

8. A., possessed of £4000 stock, bequeathed
£2000 of it to B.; £1000 of the remainder for
the use of the Protestant school of St. Peter’s
Parish; and the other £1000 for the use of the
school attached to the Episcopal Chapel in.
B.-street. That chapel had not any school
attached to it. B.-street was in St. Peter’s
Parish. Held, that, with regard to the second
£1000, the will showed a general charitable
intention, which might be executed cy-pres in
favour of Protestant schools in St. Peter’s
Parish. Reference to the Master to settle a
scheme accordingly.

The costs down to and including the hear-
ing to be paid out of the residue. Costs of
the reference to be borne by the fund.—Daly
v. Att. Gen. 111. C.R.41; 51. Jur. N.S. 297.
(C.)

9. A. bequeathed £500 to a R. C. priest on
a secret trust disclosed to him by A. during
life. The trust was:—to apply that sum to-
wards redeeming the rent of the church of
the Dominican Friars in Cork. Held, that the
bequest, being given on an invalid trust, was
void, and could not be carried out cy-pres.—
Sims v. Quinlan, 171. C. R. 48; 10 I. Jur. N.
8. 41. (C.A.)—[Varying the Rolls decision, 16
IC. R. 191; 91. Jur. N.S. 404.]

 

Il. How Cuanriry 1s CoNstiTUTED : WHETHER
VALID OR VOID.

1. Generally: when valid.
2. When void.
a. Under the mortmain statutes.
b. For uncertainty, Sc.
8. Of the intention and objects.
4. Trustees of Charity : appointment and re-
moval of: breach of trust.

 

IL. 1. Generally: when valid.

10. A direction to trustees to spend, at their
discretion “in the service of my Lord and
Master, and, I trust, Redeemer,” £2000 annu-
ally until the testator’s son attained age—
Held, a good charitable bequest.

From the temporary character of the be-
quest, and the discretion intended to be given
to the trustees, the Court declined to refer it
to the Master to approve of a ee aes
Powerscourt v. Lord P., Beat. Rep. 572. (C.

\
When valid.

1. Devise"of lands, after testator’s wife’s
death, to ‘The Incorporated Society in Dublin
for promoting English Protestant Schools in
Ireland,” and their successors for ever. Bill
charging that the defendants retained pos-
session of the greater portion of the estates,
and of all the common title deeds, which they
refused to deliver up.

Demurrer—That, by the law of Ireland, no
corporation or body politic is capable of
taking by devise any estates of inheritance in
lands; over-ruled, because neither the Cor-
poration as such, nor any individual member
of it, could possibly, save as members of the
community at large, derive any benefit or
interest whatever from the devise.

Courts of Equity have an original inherent
jurisdiction in all cases of charity— The In-
corporated Society v. Richards—S. & Sc. 559.
(R.)—[See s.c., 4 I. E. R. 177; 1 Dr. & War.
258; 1 Con. & L. 58. (C.)] ‘

2. V., by codicil, devised lands to trustees
for certain charitable purposes. The codicil
stated that the lands were then let at a clear
yearly rent of £237, which V. directed to be
appropriated in the manner specified in the
codicil to maintain schools, alms-houses, &c. ;
and that, if the rent increased by any new
letting, such surplus should go to the only
use and behoof of the persons of the S. and
C. families, who should for the time being be
lords or ladies of the manor of D.; and if
those families should not protect those chari-
ties, or should become extinct, the trustees
should, in either of such cases, apply those
surplus rents, in addition to the former pro-
vision, for the charities. The rents originally
appropriated became insuflicient to support
the charities. Held, that there was not such
a general dedication of the estates (including
the surplus rents) for charitable purposes as
made the S. and C. families trustees of the
surplus rents for the charities —Com. of Char.
Don. § Beg. v. Clifford, 1 Dr. & War. 245. (C.)

3. V. gave such sum of stock as she should
be possessed of at her death to A. and B., “to
be by them applied to charitable purposes,”
according to her instructions deposited with
A. These were verbal instructions, leaving it
in A.’s discretion to select the charitable pur-
poses to which the stock should be applied.
Held, a good gift of the stock to charity, and
that the Court would direct a scheme for
its application.—Comrs. Char. Don. § Beg. v.
Sullivan, 4 I. E. R. 280; 1 Dr. & War. 501.

(C.)

4, V., by will, after bequeathing legacies
and directing his debts to be paid, ordered all
his effects to be sold by auction, and such
money or valuables as he should die possessed
of to be handed over to D., to be applied to
the use of M. to a certain amount during her
life; the residue, if any, after her demise to
be expended in masses for his soul’s sake. He
directed a security in the hands of J. to be
applied as above. ‘“ My Royal Canal stock is
to be sold; also, my Grand Canal debentures,
as necessity may require, at the discretion of

[CHARITY.]

 

When void. 123

my executors.” Held, that the whole of the
residue, including the stock and debentures,
was disposed of under the residuary clause,
and passed to the executors on the death of
M. That the bequest for masses for the tes-
tator’s soul was valid, and not void as a super-
stitious use.—Read y. Hodgens, 7 I. E. R. 17.

&)

5. A bequest of money to build a church in
Treland is not within the 7&8 Vic., c. 97, s.
16; and is therefore valid, though the will be
made within three months of the testator’s
death.— Pollock v. Day, 141.C.R. 297. (R.)—
(Confirmed on appeal, 141. C. R..3871. (C.A.) ]

 

IIL. 2. When void.
a. Under the Mortmain Statutes.
b. For uncertainty, Sc.

 

II. 2. a. When a Charity is votd under the Mort-
main Acts.

6. All the English Statutes of Mortmain pre-
vious to the 10 Hen. 7, c. 22 (Poyning’s Law),
are in force in Ireland.

A license by the Crown to a corporation to
hold lands in mortmain, although granted pre-
viously to the passing of 32 G. 3, c. 31, isa
good and sufficient one—Jncorporated Society
v. Richards, 4 1. E. R.177; 1 Dr. & War. 258
1 Con. & L. 58. (C.)—[See s.u. S. & S. 559.

®)]

7, A bequest of money for masses for the
repose of the soul of the testatrix. Held, not
to be void, or against law, as being for super-
stitious uses.—T'he Comrs. of Ch. Don. and Beq.
v. Walsh, 7. I. E. R. 84, note. (C).

8. If a charitable bequest be void by ex-
press enactment, it cannot be carried out cy-
pres; but a bequest void, as being contrary to
the policy of the law, will in general be car-
ried out cy-pres.

If a testator shows not an intention of ge-
neral charity, but to give to some particular
institution, in some particular place, and
which intention cannot be carried out, the
Court will not hold the gift applicable to
charity generally ; it will fail altogether.

In 1861, V. bequeathed £500 to two R. C.
priests, and the survivor of them, to be ap-
plied as they should deem best for the educa-
tion and maintenance of two priests of the
order of St. D. in Ireland. eld, void, as
contrary to the policy of the 10 G. 4, u. 7; and
that the bequest, being for a general chari-
table purpose, should be carried out cy-pres,
under the sign manual. ;

V. bequeathed a legacy to a R. C. priest,
upon a secret trust to apply it towards the
redemption of the rent of a R. C. church, held
by Dominican Monks as trustees, subject to a
rent of £60. The church was numerously fre-
quented, and was an ordinary and principal
place of ‘worship for R. Catholics in the city
of Cork. Held, that this bequest was void, as
contrary to the 10 G.4,c.7; and that, being ©
confined to a particular charitable purpose, it
could not be carried out cy-pres.—Sims v.

'
124 Intention of.

Quinlan, 16 I. C. R. 191; 91. Jur. 404. (R.)—
[Varied., 171. C. R. 43; 10 I. Jur. N. 8. 41.
(C.A.)]

Il. 2. b. When void for uncertainty, §¢c.

1. When the terms of a trust are so indefi-
nite that the Court cannot act upon them, the
disposition of the pruperty belongs to the
Crown under the sign manual.—Phelan v. Rus-
sel, Long. & T. 674; 41. E.R. 701. (E.E.)

 

2. V. by will provided a fund for schools
and alms-houses, and directed that the surplus
rents, if any, should go to A. and B.; but, if
they should not protect the charities, then
these surplus rents to go in addition to the
former provision for the charity. Held, that
there was not sufficient certainty in the dedi-
cation of the surplus rents to the purposes of
the charity to make A. and B. trustees of
them for that purpose.—Comrs. of Char. Don.
y. Baroness de Clifford, 1 Dr. & Wav. 245. (C.)

3. A devise “unto the Incorporated Society
in Dublin for promoting English Protestant
Charter Schools in Ireland, and their succes-
sors”—Held, a sufficient declaration of the
charitable purpose.

When a devise of lands has been made to a
corporation for a charitable purpose, although
void by reason of the exception of corpora-
tions in the Statute of Wills, yet the Court
will, by its own inherent authority, decree the
charitable trusts to be carried into execution.
—Incorporated Society v. Richards, 41. E. R.
177; 1 Dr. & War. 258; 1 Con. & L. 58. (C.)
[See s.u. 8. & 8. 559. (R.) J

 

II. 8. Of the intention and objects of the Charity.

4. A devise “unto the Incorporated Society
in Dublin for promoting English Protestant
Charter Schools in Ireland, and their succes-
sors ”—Held, a suflicient declaration of the
charitable purpose.

The Court will, by its own inherent autho-
rity, decrce the execution of the charitable
trusts of lands devised to a corporation, for
charitable purposes, although the devise is
void at law under the Statute of Wills, by
reason of the exceptions of corporations
therein.— Incorporated Society v. Richards, 4 I.
E. R.177; 1 Dr. & War. 258; 1 Con. & L. 58.
(C.)—See s. up 8. & §. 559. CR.)

5. In 1710, certain members of the Trinita-
rian Protestant Dissenting Congregation sub-
scribed large sums of money for charitable
purposes, and executed a trust deed for the
management of the fund. This deed recited
that the objects of the trust were—first, to
support the Protestant dissenting interest
against unreasonable persecutions; secondly,
to educate youth designed for the ministry
amongst Protestant Dissenters, and, thirdly, to
assist poor Protestant Dissenting congrega-
tions.— Held, that Unitarian Protestant Dis-
senters were not within the trusts of the deed.

That the words “Protestant Dissenters”
not having acquired, at the date of the trust
deed, a known legal meaning, there might be

[CHARITY.]

 

Trustees of.

received, to show what their meaning was in
that trust deed, evidence, such as contempo-
raneous documents and usage, the acts of the
party, and the circumstances in which he was
when he executed the deed, but not his parti-
cular opinions or declarations. That con-
temporaneous usage and long enjoyment,
though they afford grounds for interpreting
doubtful words in a trust deed, give no sanc-
tion to a breach of trust. That a decree,
which declares Trinitarian Protestant dissent-
ers only to be entitled to a trust fund, is
right in also removing from the trust such of
them as had concurred in the misapplication
of the fund.—Drummond v. Att.-Gen., 2 H. L.
Cas. 837; 14 Jur. 137. (H.L.) [Affg. Ait.- Gen. v.
Drummond, 1 Dr. & War. 353. (C.)— See 3 Dr.
& War. 162; 1 Con. & L. 210; 2 Con. & L.
93. (C.)]

6. In pursuance of an order of reference
made under the 52 G. 3, c. 101, and the
1 W. 4,,c. 60, the Master reported that the
Ecclesiastical Commissioners for Ireland were
proper persons to be appointed new trustees
of properties devised for charitable purposes
by a will of 1690.

Form of order confirming this report, and
appointing them to be such trustees.—In re
Gore's Charity, Dr. Rep. temp. Sug. 536. (C.)

7. Bequest of an annuity to the monks
of S., to provide clothing for the poor chil-
dren attending their schools. Held, valid.

Held also, that the bequest showed a gene-
ral charitable intent, which the Court would
effectuate, though the school should be ac-
cidentally discontinued, or should cease to
answer the testamentary description of it.

Bequest of an annuity to the parish priest
of D., to provide for the expense of an organ
and organist for the chapel of B. Held,
valid.

A. bequeathed £20 to C. for life, and after
his death to the monks of M., to be appro-
priated to the improvement of the chapel of
M. V., the abbot of M. at the time of the
testator’s death, died before C. Held, that
his successor had no right to the £20, and
that there was no general charitable purpose
for which a scheme should be directed.—Car-
bery v. Cox, 3 I. C. R. 2381; 4 I. Jur. 274,
(C)

I. 4. Trustees of Charity: Appointment and
Removal of: Breach of Trust.

8. When there is a bequest of money in
trust for a charitable use, at the discretion of
a trustee, who dies before the trust is execu-
ted, the disposition of the property belongs
to the Crown, under the sign manual.

Semble—The same rule applies where the
terms of the trust are so indefinite that the
Court cannot act upon them.—Phelan v. Rus-
sel, Long & T. 674; 41. E.R. 701. (E.E.)

 

9. V., by a codicil, devised lands to trustees
for charitable purposes. The codicil stated that
the lands were then let at a clear yearly rent
of £237, which V. directed to be appropriated
Trustees of.

in the particular manner specified in the codi-.
cil, for the maintenance of schools and alms-,
V. then directed, that, in the}

houses, &c.
event of there being an increase in the rénts
by any new letting, that surplus should go
to the only use and behoof of the person or
persons of the 8. and C. families, who, for the
time being, should be lords or ladies of the
manor of D.; and in case the said families
should not ,protect said charities, or if the
said families should become extinct, then,
and in either of such cases, the trustees
should apply the surplus rents in addition to
the former proyision for the charities. The
rents originally appropriated became insufti-
cient to support the charities. Held, that
there was not such a general dedication of
the estates (including the surplus rents) for
charitable purposes as made the 8. and C. fa-
milies trustees of the surplus rents for the
charities.— Commrs. of Ch. Don. v. Baroness de
Clifford, 1 Dr. & War. 245. (C.)

1. Charities are bound by the Statute of
Limitations. :

V. devised his estate on trust to convey
it to W. and his sons, in strict settlement, sub-
ject to, and charged and chargeable with
annuities for charities; giving a joint leasing
power to the trustees, and a direction, ap-
plicable to them, to pay the annuities. W.
went into possession, and continued so for
nearly thirty years after the annuities became
payable, without any payment being made on
account of them. He and his eldest son
re-settled and mortgaged the estate. No con-
veyance was ever made by the trustees. Held,
that the legal estate being still in the trustees,
there was,an express trust for the benefit

of the charities within the 25th sec. of the’

Act; and that, even if the case was to be

considered as if the trustees had conveyed, |

the charge created an express trust within
that sec., and therefore time was no bar.

The question when a charge creates an ex-
press trust considered—Commis. of Ch. Be-
quests vy. Wybrants, 7 I. E. R. 580; 2 Jon. &
L. 182. (C.)

2. In considering whether mixed trustees,
or trustees of a particular religious class or de-
nomination, of charity estates vested in a mu-
nicipal corporation, should be appointed under
the 3 & 4 Vic, c. 108, s. 11, the Court will
look to the constitution of the trust, and how
it has been exercised, and how matters stood:
when the Act came into operation in the
borough. When the usage has been to apply
the charity estate exclusively for the benefit
of persons of a particular religious denomina-
tion, and such application is not clearly in-
consistent with the constitution of the trust,
the Court will appoint trustees of that reli-
gious denomination only.

Upon a petition to appoint trustees under

the 3 & 4 Vic., c. 108, s. 112, the Court has ju- |

risdiction to determine the character of the
charity only so far as is necessary for the pur-
pose of appointing the trustees—not conclu-
sively.—In re the Charity Estates of Drogheda,
3 Jon. & L. 422. (C.)

([CHARITY.]

 

Revenues of. 125

3. The Charitable Bequests Act, 7&8 Vic.,
c. 97, authorising the Commissioners of Ch.
Donations to sue for devises or bequests with-
held, concealed, or misapplied; and to apply
them according to the devisor’s intention;
gives them such an interest as entitles them
to file a bill to remove a testamentary trustee
for a charity and appoint new trustees. The
proceeding need not be by information. Relief
will be granted on account of the mere perso-
nal unfitness of the trustee.

Form of decree for removing a trustee who

j may still be entitled to a control as to the

objects of the charity.—Commrs. Ch. Don. v.
Archbold, 111. E. R. 187. (C.)—[Revg., 2 H.
Lds. Cas. 440.]

4, The Court of Ch. has not jurisdiction to
relieve the Commissioners of Ch. Donations
and Bequests from the trusts imposed upon
them by Act of Parliament, and to appoint
new trustees in their stead.

Queere—Has the Court power to frame rules
for the management of a charitable institu-
tion under the control of the Commissioners
of Ch. Donations and Bequests, when a scheme
framed by the Commissioners for the admi-
nistration of the charity is already in opera-
tion?—In re Fanning’s Charity, 15 I. C. RB.
384. (C.)

 

Ill. Revenves or Cuaritizs.

. Generally: how administered.
. Augmentation and application of accretion
or surplus.
. Marshalling assets in favour of.
. Leases: setting them aside.
. Alienation and misapplication of charity
Sunds.

oP be

 

IIL. 5. Alienation and misapplication of charity
funds.

5. V. devised a house in trust for, and ap-
pointed it to the use of a charity school for
females. In time the premises became ruinous
and unsuited for a school for females, but valu-
able for commercial purposes. There was not
any fund for repairing the house. The trustees
presented a petition under the'52 G. 3, ¢. 101,
which the Court refused to refer to the
Master to inquire whether it would be for the
benefit of the charity to sell the house, but
granted. a reference to inquire whether it
would benefit the charity to let the house, and
apply the rent in procuring a suitable place
in which to carry on the school.—In re Suir
Island Charity, 3 Jon. & L.171. (C.)

 

IV. Brit, Inrormation, anp Petition con-
CERNING CHARITIES: PRACTICE THEREON.

. Generally.

. Lnformation.

. Bull, petition, &c.

. Relator. ;

. Commission of Charitable Uses.

oR COD

 

IV. 1. Bill, §:c., concerning Charity, generally :

Practice thereon.
6. It cannot be objected to an information
that there is aremedy at law., The Att.-Gen.
126 Information.

acting on behalf of the public, has the privi-
lege of electing to sue in this Court, even for
a legal demand.

Where the King may have an interest of
that nature in the subject matter of an infor-
mation, that distinct right should be repre-
sented by the Solicitor-General, who may be
present at the hearing without being made a
party to the cause.—<d¢tt.-Gen. v. Mayor, §c.,
of Galway, 1 Mol. 95. (C.)

1. An allegation of a grant in the reign of
Ed. 3 in Ireland for the improvement of a city
and support of public buildings, bridges, high-
ways, and establishments therein. Held, a
sufficient statement of a charitable use, which,
though made to a Corporation, will be en-
forced in this Court asa trust. Such a gift
from the Crown suffices to create a condition ;
and the Crown must insist on the forfeiture,
or waive it on the performance of the con-
dition, so as to give this Court jurisdiction
on the information.—Att.-Gen. v. Corporation
of Limerick, Beat. 563. (C.)

2. Ina suit instituted against a charity or
the Crown, the Attorney-General should be
fully apprised of the proceedings.—Potts vy.
Turnley, 11. Jur. 57. (C.)

 

IV. 2. Information.

See1&2 Vic., c. 78, s. 25; 7 & 8 Vic. c. 45;
7&8 Vic, ¢. 97.

3. An information against a Corporation,
and also against an individual officer of it,
making a case in which the latter would be
personally liable, is not demurrable.—Att.-
Gen. v. Corpn. of Limerick, Beat. 563. (C.)

4. In 1842 was filed an information charg-
ing that charitable funds, therein specified,
had been applied to promote religious doc-
trines at variance with those intended by the
respective donors, and praying that the cha-
rity might be established according to the in-
tention of the founders. The cause, coming
on to be heard at the Sittings after H. Term,
1844, was ordered to stand over for final
judgment; but, before that judgment was
pronounced, the 7 & 8 Vic., c. 45, was passed.
An application, pursuant to sec. 3, was made
in the cause. Held, that it being a case
within the exception in sec. 2, the parti-
cular doctrine to be taught must be specified
on the face of the deed of gift, or be con-
tained in some document expressly referred to
therein; and, consequently, that a gift to be
applied towards building a new meeting-house
for the Protestant Dissenting congregation,
then of New-row, “for the service and wor-
ship of God in that way,” was not within that
exception: neither was a trust to “assist in
supporting and maintaining a Gospel minister
of the Presbyterian persuasion to preach
the Gospel to. the Presbyterian congregation
whereof” the donor “was a member, meeting
for Divine worship in Eustace-street, and to
instruct them and their successors for ever in
the true principles of the Christian religion.”

[CHARITY.]

 

Relator.

Held, that the information should be dismissed,
with full costs to the Attorney-General and
bas, ie ae payable out of the charity funds.
—Ait.- Gen. v. Hutton, 7 I. E. R. 612; Dr. Rep.
temp. Sug. 480. (C.)

 

IV. 3. Bill, Petition, Sc. ; Practice on.

5. An executor lodged in Court, under the
Trustee Relief Act, the amount of a charitable
legacy, and presented a petition praying for a
reference to obtain the Master’s approval of
ascheme. Held, that the petition ought to be
entitled under the 52 G. 3, c. 101, and ought
to be sent to the Attorney-General.—In re the
Trusts of Kelly's will, 7 1. Jur. N. §. 273. (R.)

 

IV. 4. Relator.

6. When relators refused to proceed further
in an information, new relators were substi-
tuted who offered an indemnity for all past
and future costs.—Altt.- Gen. v. Corp. of Cashel,
S. & Sc. 333. (R.)

7. Defendant was restrained from proceed-
ing against relators for costs of an information
dismissed with costs upon affidavit of intention
to appeal, but upon terms.—A?t.- Gen. v. Corp.
of oe 2 Mol. 355. (C.}-[Sce 1 Bli. N.S.
312.

IV. 5. Commissioners of Charitable Uses.

 

CHARTER.

See CoRPORATION.

 

CHATTELS PERSONAL.

Taem Nature ano Incipents.—Or Stock.

For the distinction between personal Chattels and
personal Estate—See Estate.

For limitation of Chattels—See Estate.

Specific performance of Agreement concerning.
See AGREEMENT, VIII.

Real, of Wife. See Huspanp anv Wires, II.

Limitation of Personals. See Estate, IX.

Generally. See Estate, IX.

 

CHEQUE.

 

CHILD AND CHILDREN.

See Bankruptcy, XI.—Parent anp CuILp—
GranpcHitp— Postaumovus Cuitp—Is-
STE—GUARDIAN AND WarpD—InFanT—
YOUNGER CHILDREN.

Power to appoint to. See Power, VI.

Portions of. See SETTLEMENT, XI.
[CHOSE IN ACTION.]

CHOICE OF ASSIGNEES.
See BANKRUPTCY, X.

 

CHOSE IN ACTION.
— Of Wife. See Huspanp anp Wire, ITI.—
SETTLEMENT, II.

1. A chose in action may be assigned in
equity, either for valuable consideration or
by voluntary deed.— Blakely v. Brady, 2 Dr. &
toy 311.—Gannon v. White, 2 I. KE. R. 207.

C.)

2. A father, entitled to money on mortgage,
covenanted, on the marriage of his daughter,
that a specific part of it should be transferred
to the trustees of the marriage settlement
within three months after his death, and to
pay interest in the meantime. Held, that the
covenant amounted to an actual assignment.
Brownlow v. Earlof Meath, 2 1. E. R. 383. (€.)

8. H., a trader, and local agent of an In-
surance Co., of which the head office was in
Dublin, effected with it upon his own life two
policies, which he assigned to a banking firm,
whose debtor he was. At the times of the
respective assignments a formal notice thereof
was given to him as agent of the Co. H. be-
came bankrupt and died. Held, that as between
the banking firm and the assignee in bank-
ruptcy the notice was insufficient, the transac-
tion being taken to have happened in Dublin,
there not being on the face of the policies
anything showing that they had been effected
when H. had been agent.

When the assignor of a policy is agent to
the Co. with which it has been effected, notice
to him of the assignment will be insufficient.
In re Hennessy, 5 J. E.R. 259; 2 Dr. & War.
555; 1 Con. & L. 559. (C.)

4. An application, to have a consent made
arule of Court, for the purpose of having a
transfer of a wife’s reversionary interest in
stock made to the tenant for life, having been
refused by the M. R., the Ld. Ch., on appeal,
affirmed that order, and left the parties to file
a bill— Boz v. B., 61. E. R. 174; 2 Con. & L.
605. (C.)

5. In asuit to carry into execution the trusts
of a will, the receiver was ordered to pay out
of the rents to H., a feme covert and devisee of
the real estates, the annual sum of £400, for
her separate use, and on her own receipt, by
way of maintenance. By deed subsequently
executed, to which H. and her husband were
parties, the estates, subject to charges, were
conveyed in fee to such uses as H. should by
deed appoint. Held, that the £400 a year was
not a chose in action, but a portion of the
estate of H. in the lands, and that a puisne
assignee thereof could not, by giving an earlier
notice of the assignment to him, to the trustees
in whom the estates were vested, obtain
priority over a prior assignee who had omitted
to give such notice.

 

127

The doctrine in Dearle v. Hall (3 Russ. 1)
has very properly been confined to cases of
choses in action. It has been carried as far as
is warranted by principle; and the Court is
not inclined to extend it farther than the cases
authorise it.—Rochard v. Fulton, 1 Jon. & L.
413; 71.E.R.181. (C.)

6. W., seized of the lands of X., confessed a
judgment, and afterwards joined in a settle-
ment on his son’s marriage, under which the
son C. was made tenant for life of X.; re-
mainder to his children; W. covenanting that
X. was free from incumbrances. W. then
made his will, giving large legacies, and making
C. executor. Y., one of the legatees, married.
By her settlement the legacy was assigned to
trustees, of whom C. was one. He executed
the settlement. A suit was instituted by the
judgment creditor in 1835, the bill praying a
general account and administration of the
assets. In 1836 a bill was filed by the parties
entitled to Y.’s legacy, praying the proper and.
usual accounts, the judgment creditor being a
defendant. Soon after, C. disposed of some
assets, and an order was made on consent to
transfer a considerable sum to the credit of the
legatees’ cause, without prejudice to the rights
of the various parties at the hearing, the
judgment creditor not being represented on
the motion. The order directed the dividends
of the sum invested to be paid to the party
entitled to the interest under Y.’s settlement,
and the bill was dismissed against the judg-
ment creditor. The assets being wasted, C.’s
children filed a bill, claiming as specialty
creditors to have X. indemnified against the
judgment, under the covenant in C.’s settle-
ment, and an order was obtained to transfer
the fund in Court to the credit of this cause.
Heid, that there had been no appropriation
of the fund, either as against the specialty
creditors or as against the other legatees in
W.’s will, but that it still continued assets.

The purchaser for value of a legacy being
merely the purchaser of a chose in action, has
no higher equity than the legatee himself.
Jennings v. Bond, 8 I. E. R. 755; 2 Jon. & L.
720. (C.)

7. An assignee of a chose in action takes it
subject only to existing equities, and not to
collateral rights arising from events subse+
quent to the assignment. X., a legatee,
assigned his legacy, payable out of a charge
on A.’s estate. The executor having died, X.
obtained administration, and as administrator
received payments from A., whereby the charge
became deficient to pay other legatees. Held,
that X.’s assignee was not bound to bear the
entire loss.

The rule requiring notice of an assignment
of a chose in action does not apply where
there is no question between successive claim-
ants under the assignor; and as between them
the personal representative is the proper party
to have notice of the assignment of a legacy,
though payable out of a debt to the estate—
Molloy v. French, 13 I. E. R. 261. (C.)

8, A judgment debtor, possessed of the lands
128

of A. for a term, and seized of the lands of B.
conveyed by two contemporaneous deeds A.
and B., subject to terms for payment of his
debts, to the use of himself for life, remainder
to C. for life, remainder over, and the lands
of X. to Z. and his heirs. Z. died, having
devised X. to his wife, who afterwards married
S. After the debtor's death the judgment
creditor proceeded by elegit against the lands
of X. S. and his wife filed against him a bill
for an injunction, and to carry the trusts of the
deeds into execution; but were ultimately
obliged to pay the amount due on the judg-
ment. By the decree in the cause it was
ordered that C. should pay S. and wife the
amount paid by them, and interest, or in
default that A. and B. should be sold for the
terms; and that 8. and wife should be paid
the sum decreed to them. S. assigned the
benefit of the decree to R., who filed a bill to
carry the decree into execution. Held, on
demurrer, that the personal representative of
C., who had died in the meantime, was not a
necessary party to the latter bill, nor was it
necessary to revive the former suit against
him

That the assignment of the benefit of the
decree by S. was not binding against the
personal representative of his wife, who had
survived him. i

Demurrer allowed on a cause assigned ore
tenus, without costs.—Rowland v. M*Donnell, 13
I. E. R. 365. (R.)

1. The M. R., on a summary petition pre-
sented against B., a solicitor, ordered him to
pay asum alleged to have been lost through his
misconduct. The Lord Chancellor reversed
the order. Shortly afterwards a cause petition
was presented praying relief on foot of the
same transaction which had formed the sub-
ject of the summary application; and on the
16th June 1854, the Court decreed that D.
should pay £400 to the petitioner. On the
7th January 1854, D. assigned some real
estate, certain swms due to him for costs, and
a policy of insurance on his own life, to his
son, N., in trust, subject to the payment
thereout of scheduled creditors, for the abso-
lute benefit of N. The petitioner, on the
10th July 1854, registered the decretal order;
afterwards issued a writ of fi. fa. under it
against the goods of D., and then filed a peti-
tion, praying that the deed of the 7th Jan.
1854 might be declared fraudulent and void
as against the petitioner. Held, that the
policy of insurance was not such a “security
for money” as could be seized by the sheriff
under 3 & 4 Vic., ¢. 105, s. 20.

That the real estate, not being affected by
the mere registration of the decree, and the
choses in action not being capable of seizure
under the fi. fa., no occasion appeared for the
interference of this Court in aid of the execu-
tion, assuming that the petitioner’s redress
was to be sought in this Court, and not in a
Court of Law; and that, nosequestration having
been issued, the fact of the execution being
from this Court made no difference in the
a aia y. Darcy, 5 I. C. R. 56.
C.)

 

[CHOSE IN ACTION—CIVIL DEATH.]

CHURCH.
See EcciestasticaL Persons, &¢., passim.

 

CHURCHWARDENS.

 

CIRCUITY OF SUIT.
See Suir.

 

CIVIL DEATH.
See DisaBIvitiEs.

2. A Roman Catholic entitled to real estate
did not take the oath necessary under the
statutes to qualify him to hold it, and was not
in enjoyment of the lands, nor were proceed-
ings taken to enforce his title until after the
passing of the R. C. Relief Act (10 G. 4, c.7).
Held, that sec. 23 removed his former dis-
ability. —O’ Connell v. O'Callaghan, 7 I. E. R.
596. (C.)

3. Quaere—Whether nuns, who have vowed
poverty and obedience, are capable of acquiring
property ?—M ‘Carthy v. M-C., 91. E. R. 620.
(C.)}—[See s. c. 1 H. L. Cas. 703.]

4. The doctrine of civil death by profession
ceased to be law at the Reformation, and was
not revived by the R. C. Emancipation Act.
Therefore the Court granted a receiver, on a
bill filed to raise arrears of an annuity devised
in trust for a lady (who afterwards became a
nun), during whatever period of her natural
life she continued unmarried.—Lvans v. Cas-
sidy, 111. E. R. 243. (R.)

5. The doctrine of civil death, in conse-
quence of profession as a monk or nun, is not
law at the present day.—Blake v. B., 41. C. R.
349. (C.)

 

CLAIMS.
See BANKRUPTCY.
British, on France. See Sratutes, I.—Britiso
Cuaims ON FRANCE.

 

CLERK.

In Court. See PracticE—OFFIcER oF Court.
— Of Enrolments. See ibid.

 

CLANDESTINE MARRIAGE.
See Marriace, I.

 

CLERGY AND CLERICAL MATTERS.

See EcciesiasticaL PERsons.

 

CLIENT.
See SOLICITOR AND CLIENT.
[COMMISSION.—COMPENSATION. ]

CO-DEBTOR.
See Preapinc—Party.

 

CODICIL.
See Wii. XVI.
Revocation of Will by.
See Wiix, VII.

 

COLLATERAL SECURITY.
See Sxcuritry, VI.

 

COLLEGE.
See Cuanrrry, I.

 

COLLUSION.
See Fraup.

 

COLONIES AND COLONIAL LAW.

See Forrten Laws, &c.—ConsieneEs or W. I.
Estatse—Manacer—k. I. C., &c.

 

COMMISSION.

— Of Bankruptcy. See Bankruptcy, VI.

— Of Charitable Uses. See Cuariry, IV.

— Of Lunacy See Lunacy, IV.

— To take Answer. See Practicn, ANSWER.
— To ascertain Boundaries, and value Lands.

See PRAcTICE, COMMISSION TO ASCER- |’

TAIN.

— Of Partition. See Practicr, Commission
or PaRTITION.

— Of Rebellion. See Practicr, Commission
or REBELLION.

— Of Review. See Practice, CoMMISSION OF
Review.

— To examine Witnesses. See Practicr, Evi-
DENCE.

Affidavit in support of Application for. See
Practice, EVIDENCE.

Costs of. See Practicx. Costs.

Payment into Court on. Sce Practice, Par-

MENT INTO CouRT.

 

COMMISSIONER.

— Of Bankruptcy. See Banxrvrtcy, VII, XX.

— Undue advantages taken, and purchases made
by Commissioner of Bankruptcy. See
Fravp, VII.

— Of Public Works. See Pusric Works.

Costs of. See Practice, Costs.

 

For taxing AFFIDAvits ; APPOINTMENT OF.

The power of the Court of Chancery to ap-
point Commissioners to take depositions and
evidence was regulated by the 4 G. 4, c. 61.—
[See ss. 43 and 44, &c.]—4 G. 4, ¢. 70.—[See
ss. 42 to 49, &c.] ,

 

129

And those powers, and the mode of taking
evidence, were further regulated by 6 G. 4,
c. 30; 5 & 6 W.4, c. 55.—[See sec. 40, &e.]—
80 & 31 Vic., c. 44, ss. 78, 79, 80.

See G. O. of Ct. of Chancery of March 27,
1843, 85 to 93.

The 30 & 31 Vic., c. 44, s. 78, empowers the
Lord Chancellor to appoint Commissioners
for the Isle of Man and the Channel Islands.

1. On an application for appointment as
Commissioner for taking affidavits and exa-
mining witnesses in London and the adjoining
counties—Held, that the business of the Court
being satisfactorily transacted under the pre-
sent system, of having one Commissioner’s
office in London, in which a Commissioner
regularly attended, additional Commissioners
ought not to be appointed, without proof of
inconvenience arising from the present sys-
tem.— Ex parte Wilkin, 51. C. R. 397. (C.)

2. A solicitor, though eligible to be a Com-
missioner Extraordinary, will not be preferred
if another competent person be found.—Azon.,
21. Jur. 185. (C.)

3. The Lord C. of Ireland will not appoint
an additional Commissioner in London for
affidavits for the Court of C., while the Com-
missioners already appointed continue to de-
vote themselves exclusively to the duties of
their appointment, and no actual necessity
for the additional appointment is shown to
the Court.—In ve Harrison, 2 I. Jur. 250. (C.)

 

COMMITTAL AND COMMITMENT.

— Of Witnesses. See Banxnurtcy, VII.
— Of Bankrupt. See Banxrurrey, VIII.
— Generally. See Practicr, Commirment—
Practice, ATTACHMENT.
— For Contempt. See Practicr, ContemPr.
— For breach of Injunction See Practices,
InguNCTION.

 

COMMITTEE OF LUNATICS.

See Lunacy, V—Pxieapine, Parties—Prac-
ticy, Costs.

 

COMMON.
— Right of : Inclosure and Allotment.
PYHOLD—INFORMER.

See Co-

 

COMPANY.
See East Inp1a Company—S. S. Company—
InsvrancrE— PartNersHip—CorpPora-
TION.

 

COMPENSATION.
See Vendor anp Porcuaser, V.
When specific performance, with compensation,
will be decreed. See AGREEMENT, VIII.
When Vendee may or must take, with compen-
sation. See VENDOR AND PurcuaseEr, V.
4. When a suit is compromised before the

17
180

expiration of a lease for five years, pending
the cause, the tenant is entitled to compensa-
tion for such moneys as he has bona fide laid
out for the benefit of the demised lands.—
Garstin v. Nangle, H. & J. 542. (E.E.)

1. Compensation not allowed to one of two
parties who had agreed to make partition.—
Dimsdale v. Robertson, 7 1. E. R. 5386; 2 Jon. &
L. 58. (C.)

2. Part of the lands sold under the decree
was, though not stated so to be in the rental,
liable to quit-rent and tithe rent-charge.
Another part was stated in the rental to be
held from year to year by C. at a rent pay-
able 1st May and Ist Nov. The purchaser,
after lodging his one-fourth of the price,
found that it was held for a term, with power
to the tenant to surrender on any 25th
March or 29th Sept., on giving six months’
notice. It was surrendered on the 25th March
then next. The tenure by which other parts
were held was not stated in the rental, but
the purchaser found, on going into possession,
that they were held for lives then subsisting.
Held, that he was entitled to compensation for
the quit-rent, but not for the tithe rent-charge ;
that at the sale C. was a tenant, not from
year to year, but for a term, to end on the
25th March then next, and the purchaser was
entitled to compensation therefor: that he
was not entitled to compensation respecting
the premises of which the tenure was not
stated, because he should have ascertained
their tenure— Martin v. Cotter, 8 I. E. R. 147.
(C.)—[See 9 I. E, R. 351; 3 Jon. & L. 496.
(C.)—Aftig., 9 I. E.R. 44. (R.)]

8. Under G. O. 145, the Master has not
jurisdiction to give allowance or compensa-
tion to a tenant for improvements. A tenant
for a term, pending the cause, will not be
allowed for improvements made without the
Court’s sanction, on notice to all parties,
though the receiver may have misled him as
to its tenure.—Wildridge v. M‘Kane, 8 I. E.
R. 231. (R.)

4, A. demised to B. and his heirs lands
whereout were reserved all mines and mine-
rals, with liberty to enter and dig for same,
and to hold 200 or 300 acres contiguous to the
mines when found: A. to make B. an allow-
ance or abatement according to the rate of
rent reserved. A. found mines and selected
land, and the Court decreed a specific perfor-
mance of the contract. Held, that the rent
should be abated in proportion to the quan-
tity, not the quality, of the land; and that A.
was not bound to give compensation for im-
provements.—Croker v. Orpen, 9 1. E. R. 563;
3 Jon. & L. 589. (C.)

5. Securities obtained from the ptf. as a
compromise of doubtful rights, but under the
threat and apprehension of an arrest, and
without adequate consideration or advice,
were set aside—Scott v. S., 11 I. E. R. 74.
(C.)

 

[(COMPENSATION.—COMPROMISE.]

6. The representatives of the lessee of a
lease for lives renewable for ever, being en-
titled to a f. f. grant under the statute, and
being unable to discover the residence of one
of the owners of the reversion, the Master,
on the absent owner’s behalf, was directed to
join the other owners in executing a f. f. grant
to those representatives ; the amount of com-
pensation for renewal fines and arrears of
rent was directed to be paid into Court to the
credit of the matter, and to the absent owner’s
separate credit—x parte Owens, 6 I. Jur.
209. (R.)

 

COMPETENCY OF WITNESS.

See Practice, Evipence.—Trustezs, IV.—
Banxrovrtcey, VIII.

 

COMPOSITION.

See Banzrurtcy, VI.—Compromisz.

 

COMPOUNDING AND COMPOSITION.

Petitioning Creditor’s Debt. See BANKRUPTCY,
Vv.

Custom. See Custom, II.

Debts. See Destor anp CreEpiTor, VII.

For Tithes. See Trraes, XII.

Deeds. See DeBtor anp Crepitor, VII.

 

COMPOUND INTEREST.

See Interest Prcuniary, IV.—Accovnt,

 

COMPROMISE AND COMPOSITION.

See ConsipErartion, IIT.
Pleas of. See Purapine, Pipa.
In Cases of Bankruptcy. See BankRUPTCY,
DEBTOR AND CREDITOR.

7. B., being indebted to I, and G., father
of I., being indebted to H. and T. in a sum,
to recover which they had instituted an
action, it was arranged (amongst other things)
that that action should be discontinued, and
that P. should pay the costs of it. Pursuant
to this agreement, P. mortgaged his estate
upon trust (inter alia) to secure to S., the ptf.
in the present suit, and attorney for H. and
T., in the action against G., the costs of H.
and T. in that action. §., though named in
the declaration of trust, was not a party to,
nor did he execute the deed. Held, that he
was not entitled, as ac. g. ¢. under the deed, to
institute -a suit to carry its trusts into execu-
tion; and that, since he had done so, the ob-
jection might be taken by any party to the
suit.

Distinction between voluntary settlements,
where the donor’s object is bounty, and volun-
tary conveyances in trust to pay debts, to
Validity of.

which the creditors are not parties.—Sim-
monds v. Palles, 2 Jon, & L. 489; 8, I. E. R.
335. (C.)

1, A compromise, made-after bill filed, may
be relied on by ,answer, if it completely dis-
poses of the rights in question; but if its
validity be doubtful, or it requires something
further to carry it into effect, a bill must be
filed either to execute or set it aside. There-
fore, when the bill claimed a share of property,
and an agreement, which was never carried
out, was made to dispose of it, and divide the
proceeds in a certain manner, and the agree-
ment was impeached by amendments in the
bill, the cause was allowed to stand over.—
Bristow v. B., 121. E. R. 329. (C.)

 

CON-ACRE.

2. The letting of land in con-acre is but a
mode of farming it—Close v. Brady, Jon. &
Car. 186. (E.E.)

 

CONCEALMENT.
See Fravp, IV.

— Oftitle. See Fraun, V.

 

CONCERTED FIAT.
See Bankruptcy. VI.

 

CONDITION.

See Exvecrron—WiLit—Lezeacy,
TION.

— In restraint of marriage. See Marriace, IV.

— Interrorem. See Marriage, I1V.—Conpr-
tion. V.

Compliance with. See Power.

I. Vatipiry or: waaT 1s a ConpiTION:

WHAT Is A COVENANT?

TI. PREcEDENT.

IU. Sussequent.

IV. Gone, OR BECOME IMPOSSIBLE.

V. Consent To MarriacEe, anp Restraint

VI—Por-

on. See infra, VI.
VI. Perrormance or, See Fravup, II,
supra, V.

1. What amounts to: consequence of.
2. When relieved agutnse-—-Da stern per-
formance supplied: breach of.

 

I. Vatrpity or aA ConpDITION: WHAT IS A
CONDITION : WHATIS A COVENANT.

3. In a lease for lives renewable for ever,
made in 1786, of lands, excepting mines, &c.,
it was agreed that the landlord might enter,
search for, and work mines; and that it
should be lawful for him, his heirs, &e., at his
election, to hold and enjoy, by separate and
distinct bounds, 200 or 300 acres of the de-
mised lands (the mansion-house and orchards
excepted) most contiguous to the mines, if
any were found, making a proportional abate-
ment in the rent to the lessor, his heirs, &.
A specific performance was decreed at the
suit of the landlord, a Court of Law having
decided [reported 6 I. L. R. 351] in an eject-

[CONDITION]

 

Performance, &c. 131

ment for the 800 acres, that this clause of
re-assumption was a covenant, and not a con-
dition. :

Sed quere—If it is not a condition ?

Held also, that the landlord was entitled to
resume the entire 300 acres, and for the entire
of the lessor’s interest, whether the mines
could be profitably worked or not; and al-
though the real object might have been to get
the land itself, the discovery of the mine being
bona fide made, and the working not merely
colourable.

And Semble, he was bound to take the 300
contiguous acres at once, and could not resume
them in separate parcels.

And Semble, he was entitled to resume them
without making any compensation for improve-
ments made by the tenant.— Croker v. Orpen,
91. E.R. 563; 3Jon. & L589. (C.)

 

Il. Precepent.

 

TIL. Sussequent.

 

IV. Gone; OR BECOME IMPOSSIBLE.

 

V. ConDITION IN RESTRAINT OF MARRIAGE:
CoNSENT TO.

4. A condition, attaching in default of
punctual payment, treated as a penalty, and
relieved against.— Carroll v. O’ Connor, 11 I. E.
R. 200. (C.)

5. Bequest of an annuity to a widow, for
life, provided she did not marry again. Held,
that the annuity determined on her second
marriage; and that the proviso was not a
condition subsequent, so as to be void as being
in restraint of marriage——ZJn re Corkers, 1 I.
Jur. 316. (C.)

6. T. devised lands to F., his eldest son, for
life; remainder to Ts first and other sons in
tail male; remainders over; with a power to
F. to appoint a jointure to any wife he should
marry, provided such marriage should be with
the assent of the guardian and executors of
the will, or the survivor ofthem. E., the wife
of T., and two other persons, were named T.’s
executors. E. was named guardian of his
children. E. alone proved the will. The other
two executors subsequently disclaimed. F., in
1843, while a minor, was married to S. by a
person in holy orders, but without license or
publication of banns, and without the consent
of E. E. subsequently consented to the cele-
bration of a formal marriage between F. and
8. Held, that the jointuring power could not
be exercised in favour of S.—Dobbyn v. Adams,
71.C. BR. 193; 21. Jur. N.S. 143. (C.)—[See
s.c. 61. C. R.170. (R.)

 

VI. Perrormance or. See Fravp, II,
supra, V.
1. What amounts to: consequence of.
2. When relieved against : defective perform~
ance supplied.
7. By deed (reciting that A. was indebted
by judgment to X. in £3000; A.’s inability to
pay ; and an agreement by X. to accept £700
132

in lieu of the £3000, if punctually paid, to be
secured by B.) 3B. mortgaged his property to
secure the £700; to be payable by instalments
at certain times. The deed provided that, if
the instalments should not be punctually paid,
X. should be remitted to his original rights
against A., as well as have the security of the
deed for the £700. By a contemporaneous deed
the judgments were assigned to a trustee, for
X., in case of default in punctual payment of
the £700; and on payment of the £700 for A.
and B. By a prior deed A. mortgaged his
property to B. for other debts, and as a
counter-security. Default was made in pay-
ment of the instalments, and the plaintiff (X.’s
assignee) claimed the entire £3000. eld,
that although the Court would not interfere
for A. if the arrangement were between him
and X. only, yet as the rights of B. were in-
volved, the condition in default of punctual
payment should be treated as » penalty and
relieved against, and this equity could be
enforced by A. as well as by B.—Carroll v.
O’ Connor, 11 I. E. R. 200. (C.)

1. The Crown may, by its prerogative, annex
a condition against alienation to a grant in
fee. The Crown granted an annuity on trust
to pay it into the hands of M. B. alone, her
executors or administrators ; and that she was
not to have power to deprive herself thereof,
either by sale, mortgage, or anticipation.—
Held, that a judgment registered as a mort-
gage under the 13 & 14 Vic., c. 29, was an
involuntary alienation; not a breach of the
condition — Fowler v. F., 16 I. C. R. 507. (R.)

 

CONDITIONAL

— Legacy. See Lucacy, VI.

— Limitation. See Limrration, II.

— Portion, when there is no devise over.
Portions, II.

— Order. See Practiczr, Orper.

— Sale.

See

 

CONDUCT OF SUIT.
See Practicr, Cause, Conpuct or.

 

CONFESSION.
See ADMISSION.

 

CONFIRMATION.

See AcquiescencE— Inrant—AGREEMENT—
WalIveER.

— Of Report. See Practicz, Master, Rerzr-
ENCE TO, &c. ¥

2. All acts must, to have the effect of acon-

firmation, be purely voluntary, and be done

with the intent to rectify that which the party

knows that he is entitled to disaffirm.—AZolony

y. L’Estrange, Beat. 413. (C.)

3. In a suit to impeach a deed of gift to
an agent and trustee, the Court held that the

 

([CONDITION.—CONFIRMATION. ]

deed, though voidable in its origin, and un-
sustainable if it had stood alone, and been
impeached in reasonable time, had, neverthe-
less, been rendered binding on the impeaching
party by his own deliberate acts done after its
execution and with the assistance of his legal
advisers.—De Montmorency v. Devereux, 1 Dr.
& Wal. 119. (C.)—[Aff. 2 Dr. & Wal. 410; 7
Cl. & Fin. 188; West, P.C. 64.]

4. A. bequeathed an annuity to his daughter
B., for life, with power to her to dispose of it
to all or any of her children by any writing
witnessed by two or more credible witnesses ;
and directed his son, W., to pay it. B. by
will, reciting that this annuity was one for
ever, devised it to her two sons, share and
share alike. W., by will posterior to B.’s,
“ratified and confirmed the annuity so given
by his father to B., and by her bequeathed to
her two sons,” and directed his eldest son, his
heirs and assigns, to pay it. Held, that the
annuity was a perpetual one, not merely for
the life of B. and her children.— Burke v. Lam-
bert, 2 Dr. & Wal. 608. (C.)

5. A deed, executed by a tenant for life,
and his eldest son, an infant, tenant in quase
tail in remainder, was held to have been ren-
dered a valid bar by subsequent dealings of
the son with the property.—Allen v. A., 4 1. E.
R. 472; 2 Dr. & War. 307; 1 Con. & L. 427.
(C.)

6. In 1786, A. was by settlement made te-
nant for life; remainder to J. for life;
remainder to J.’s sons in tail male; remain-
der to J. in fee. A. and J. were thereby
empowered to lease the settled estate. In
1787, A. and J., by a lease not warranted by
the power, demised part of the settled estate
to G., and covenanted that she and her heirs
should quietly enjoy it against the acts of the
lessors, or of any person claiming under them.
In 1819, F., J.’s eldest son, married. Upon
the occasion of that marriage, J. and F. joined
in re-settling the estate by a deed, whereby
a present provision out of the lands was made
for F. during J.’s life, and the estates were
charged with portions for J.’s younger child-
ren, and for his own benefit, and subject
thereto, were limited in the manner usual in
family settlements. J. and F. covenanted
that the lands were free from incumbrances,
“such leases of the premises as have been
heretofore really and bona fide made only ex-
cepted.” -After J.’s death, F. obtained judg-
ment in ejectment to recover the demised
lands. Those interested in the lease filed a
bill for an injunction, and to compel F. to
confirm the lease. It was decreed accord-
ingly, on the ground that by the settlement of
1819 F. had agreed to ratify and confirm the
lease.— Gray v. Knox, 5 1. E. R. 465. (E.E.)

7. Tenant for life made a lease exceeding
his power, with a covenant for quiet enjoy-
ment for himself and those claiming under
him. He and the remainderman afterwards
conveyed the lands in fee, subject to the te-
nants’ leases. Held, that this did not amount
[CONSENT.—CONSIDERATION. ]}

to a confirmation of the lease by the remain-
derman, there not being any contract between
him and the tenants, nor any stipulation be-
tween him and the tenant for life that the
remainderman should not impeach the lease.
—Brangan v. Gorges, 71. BE. R. 283. (R.)

1. D., tenant for life, purporting to exer-
cise a leasing power, made a lease in 1767,
and covenanted for quiet enjoyment against
the acts of all claiming through him. In
1791, and 1792 D. and his son A., tenant in
tail in remainder, joined in suffering reco-
veries, and re-settled the estate, subject to
then existing leases; A. having secured to
him an annuity of £2000, and £30,000 for his
debts. D. died in 1799. The estates were
subsequently re-settled by A. and the then
remainderman. In ‘1848 the lease was im-
peached as an excess of the power. Held,
that, on the doctrine of Taylor v. Stibbert and
Stoughton v. Crosbie, the lease was then valid,
whether originally void or not.

The doctrine of these cases does not clash
with the principle of Garrard v. Lord Lauder-
dale, and similar cases, preventing a stranger
from taking advantage of a creditor’s deed, or
the like, to which he is not a party. The two
classes of authorities distinguished.

The owners of the estate being obliged,
under the circumstances, to raise the objec-
tions to the lease in Equity, semble, the mere
lapse of time and acquiescence, from 1767 to
1848, would bar them from relief—Marquis of
Donegal v. Greg, 13 1. E.R. 12. (C.)

 

CONFORMITY.
See Parrsts—DIssENTERS.

 

CONSENT.
See ACQUIESCENCE, passin.

— To supersede. See Banxrurtcy, VI.

— To Marriage, conditions of. See Convt-
Trion. V.

— Of wife to bind separate estate.
.
BAND AND Wirz, III.

— Dismissal of bill by. See Practice, Bru,
DISMISSAL OF. ,

— In Court. See Practicy, Consent in Court.

— Decree by. See Practice, Ducrez.

2. Upon a bona fide consent between the
parties in a cause, B., the receiver, and A.,
A. will be substituted for B. as receiver, his
sureties approved of; the security measured
at a given sum, without reference; B. and his
sureties discharged from their recognizance ;
A. ordered to pay to B. an advance previously
made by B. for the benefit of the property,
and all his costs; and to have credit in his
accounts for such payment; that a policy of
insurance effected on B.’s life be disconti-
nued, and the life of a third party, already
insured by B., kept so by A. out of the rents,
and that the proceeds of such insurance, when
realised, should be applied by A. in recouping
his advances; and that he do, from the ba-
lance of the rents, effect an insurance on his
own life, as additional security for those ad-
vances.

See Hus-

 

133

Secus—When there appears to be an attempt
to traffic in the office of receiver.—Farran v-
Morris, 1 I. C. R. 680. (C.)

 

CONSIDERATION.

— For settlement after marriage.
MENT, I— Deep, II.

I. WHEN NECESSARY—GENERALLY.
II. Pecuniary INADEQUACY —EFFECT OF—
WHEN GROUND FOR RELIEF.
« In general.
. Annuities.
. Reversionary Interests.

TIL. Vauiprry.
. Marriage.
3 Nosural bve, &c., and to collaterals.
a. Natural love.
b. Limitations to collaterals.
3. Ex turpi contractu, et premium pudoris.
4. Generally, in cases not specified.

See SETrie-

Cobo et

Ne

 

I. WHEN NECESSARY ; GENERALLY.

8. Semble—Though a separation deed con-
tains only a covenant on the part of the wife’s
trustees, that the wife shall provide support for,
and educate the children of the marriage, and
that she shall not sue the husband for alimony
or otherwise, still it is a deed, not voluntary,
but for valuable consideration.—Nixon v. Ha-
milton, 1 I. E. R., 56; 2 Dr. & Wal. 364. C.

 

II. Pecuntary InaDEQuaCcY, EFFECT OF ; WHEN
4 GROUND FOR RELIEF.
1. Generally.
2. Annuities.
3. Reversionary Interests.

 

Il. 1. Generally.

4, A grant of annuities to secure payment of
the debts of the grantor—Hedd, a good valu-
able consideration.—Leader v. Ahearne, 2 Con.
& L. 534. (C.)

5. Estates of a husband were settled on the
wife, in consideration of her releasing other
estates from an annuity under a voluntary
deed and her right of dower, and covenanting
to levy a fine. Held, that these constituted a
good valuable consideration.—Fitzmaurice v.
Sadlier, 9 I. E. R. 595. (C.) [See Blake v.
French, 51. C. R. 246; 11 Jur. N.S. 60,

(C.)]

6. S., by deed, conveyed lands to B. his eldest
son, for life, with remainder to his issue in
tail, in consideration of which B. covenanted
to pay &.’s debts. Held, that the deed was
for value, and could not be revoked by a sub-
sequent voluntary deed between S. and B.—
Scott v. S., 111. E. R. 487. (C.)—[Affd., 4H.
L. Cas. 1065.]

7. A post-nuptial settlement made in consi-
deration of the wife’s separate estate (though
it did not pina by the deed to be separate
estate )—Held, a deed for valuable considera-
tion.— Butler v. B., 4 1. Jur. 183, (C.)
134 Validity of.

Il. 2. Annuities.

1. Covenant by the grantee in a deed to pay
an annuity—Held, a good consideration to
support the grant of the lands without any
other consideration.—Blake v. ‘Hyland, 2 Dr.
and Wal. 337. (C.)

 

Il. 3. Reversionary Interests.

2, Anagreement to grant a reversionary lease,
at arent much below the value, made with a
cousin, and purporting to be in consideration
of love and affection, is for sufficient conside-
ration, and will be specifically performed.—
Moore v. Crofton, 9 I. E. R. 344; 3 Jon. & L.
438. (C.)

3. A reversionary lease at an inadequate rent
was granted partly for past services, which
had been otherwise rewarded; no confiden-
tial relation between the parties was proved.
Held, unsustainable-— Wyse v. Lambert, 16 I.
C. R. 378. (R.)

Til. Vauipiry.

1. Marriage.
2: Natural boud §c., and to Collaterals.
a. Natural Love.
b. Limitations to Collaterals.
8. Ex turpi contractu, et premium pudoris.
4. Generally ; in cases not specified.

 

Ill. 1. Marriage.

4. Covenant in marriage articles, by the hus-
band, who received the wife’s fortune, to give
a bond for and to settle £4000, with proviso
that it should be void if the husband settled
lands of £100 a-year in value. The lady’s
fortune was afterwards increased, and lands
of over £100 a-year were settled. Held, as
against bankrupt’s assignees, that there was
a valuable consideration for the settlement
of the excess over £100 a-year.—DMaguire v.
Nicholson, Beat. Rep. 592. (C.)

5. The consideration of marriage will not
operate to support limitations to collaterals in
a marriage settlement.—Stackpoole v.S., 61.E.
R.18; 2 Con. & L. 489; 4 Dr. & War. 320.

©.)

6. A limitation of the intended husband’s
estate to “his daughters” is not a settlement
for valuable consideration as to the daughters
of a future marriage.—ZIn re Cullin’s Est., 14 I.
C. R. 506; 91. Jur. N. 8.117. (L.E.C.)

 

I. 2. a. Natural Love, &c.

7. Bonds were given by a father, prior to his
second marriage, to secure a provision for the
daughters of the first marriage. Judgments
were not entered up on the bonds until long
after. As against intermediate incumbrances,
created by the conuzor upon his lands, the
judgments—Held, not to have been given for
a valuable consideration, though afterwards
settled for value upon the marriage of the

[CONSIDERATION.]

 

Generally.

daughters.—O’Donovan v. Rogers, 7 I. C. R.
1. (R.)—[Affirmed 7 I. C. R. 496; 3 I. Jur.
N. 8. 291. (C.A.)]J

 

III. 2. b. Limitations to Collaterals.

8. The consideration of marriage will not
operate to support limitations to collaterals in
a marriage settlement. They are, therefore,
voluntary, and void as against subsequent pur-
chasers.—Stackpoole v. S., 6 I. E.R. 18; 4
Dr. & War. 320; 2 Con. & L, 489. (C.)

 

IV. 4. Generally ; in cases not specified.

9. By deed, A. conveyed lands to B. in trust
for A. for life; then to permit his daughter
C., a married woman, to receive an annuity of
£50 for her separate use; subject thereto, in
trust for his son D. in remainder. B., C., and
D., re-conveyed to A. the lands discharged of
the trusts. A. for value conveyed them to D.,
who mortgaged them to E. for value. E,,
having full notice of C.’s rights, contended
that the deed granting the annuity, being vo-
luntary, was void as against his mortgage.
Held, that the deed, guoad D., was not volun-
tary, and that E., claiming through D., was no
better off.

That a voluntary conveyance has been fol-
lowed by one for value, made by successive
owners of the same estate, creates no excep-
tion to the general rule, that notice will not
preclude a subsequent purchaser for value
from relying upon the statutes against volun-
tary or fraudulent conveyances, as against a
party om under a prior voluntary deed.
—Blake v. Hyland, 2 Dr. & Wal. 397. (C.)

10. The Court will not support a conveyance
of lands bought by an attorney from his client,
when the consideration is untruly stated.

A solicitor will not be permitted to take a
security for costs to be incurred; there is no
distinction between money advanced for the
purposes of the cause and other costs.

When a security is expressed to be given
for costs generally, query, can it be sustained
to the extent of such costs as have been in-
curred at the time of the execution of the
deed ?—Uppington v. Bullen, 2 Dr. & War. 184;
1 Con. & L. 291. (C.)

11. The continuance of the rent granted by
the former lease is » valuable consideration
for the promise to grant the lease in rever-
sion.— Moore v. Crofton, 9 I. E. R. 344; 3 Jon.
& L, 488. (C.)

 

CONSIGNMENT AND CONSIGNEE.

GENERALLY—OF CoLoNIAL Estates.

 

CONSOLIDATION.

— Of Estates, See Banxrurrcy, VI.
— Of Suits. See Practice, Cause, ADJOURN-
Ina, &e.
([CONSTITUTION.—CONTRIBUTION.]

CONSTITUTION.
See Titles referred to under title VaLIpITy.
— Of Debts. See Dust, I.
— Of Trust. See Trust, II.
— Of Trustees. See Trustsx, I.
— Of Will. See Wu1, V.

 

CONSTRUCTION.

— Of Agreement and Contract.
MENT, ITI.

— Of Bond. See Bonn, II.

— Of Covenant. See Covenant, IX.

— Of Deeds. See Deep, II.

— Of Statute of Distributions.
tron, IV.

— Of General Orders. See GENERAL ORDERS.

— Of Articles of Partnership. See Parner-

See AGREE-

See DistR1Bu-

SHIP.

— Of Powers. See Powers, V—XII.

— Of Decree. See Pracricn, DECREE.

— Of Orders. See Practice, ORDERS.

— Of Settlement. See SETTLEMENT ON Mar-
RIAGE.

— Of Statute. See Statutes, II.

— Of Trust. See Trust, IX.

— Of Wills. See Wits, XV.

— Of Words. See WorbDs, CONSTRUCTION OF.

 

CONSUL.
See AMBASSADOR.

 

CONTEMPT.

See Practice, ConrempT—Practice, ATTACH-
MENT—PRACTICE, ComMMITMENT—PRAC-
TICE, RECEIVER.

— Costs of. See Practicr, Costs.

Contempts oF Courts EccLESIAsTICAL :—
2&3 W.4, ¢. 93.

Contempts or Courts or Equity:—5 & 6
W. 4, c. 16; 17 &18 Vic., c. 115.

 

CONTINGENCY.
See Limiration, I—Lreacy, IX.

 

CONTINGENT.

— Interest. See Inverest 1n Prorverry, II.
— Debt, proof of. See Banxrtrtcy, XIII.
— Legacy, security for. See Lecacy, IX.
— Limitations. See Limrratioy, III.

— Remainder, Trustees to preserve. See Trus-
TEE, IX.

 

CONTINUING INJUNCTION.
See Practicg, InJunction.

 

CONTRACT.

For lease. See Luase, VIII.
Privity of. See Priviry or Contract.

 

135

Injunction against breach of. See Practicz,
Insuncrion.

Discharge from. See Venvor & PurcHasER.

Enforcing. See VENDOR AND PURCHASER.

See AGREEMENT, passim.

 

CONTRIBUTION.

— For Costs. See Practicr, Costs.

— Between Sureties. See PRINCIPAL AND
SuRETY.

— Between Tenant in Tail and Remainderman.
See Esrate, IT.

— Between Tenant for Life and Remainderman.
See Estar, III.

 

I. Wxo SHALL CONTRIBUTE.
1. Co-sureties.
2. Devisees, legatees, Sc.

3. Tenants for Life, §c., and Remaindermen.
4, Generally. ,

 

II. In wHat PROPORTIONS, AND BETWEEN
wuat Estates.

 

I. 1. Co-sureties.

1. A father, seised of the absolute interest
in the lands of K. and M., and of an estate for
life, with remainder to his first and other sons
in tail, inthe lands of F., and indebted by
judgments, which were charges upon all these
lands, by settlement, executed on the mar-
riage of his second son, settled K. on his
second son and the issue of the marriage; and
by a contemporaneous deed conveyed his life
estate in F., and the reversion, subject to his
life estate in M., to his eldest son, who there-
by covenanted generally to indemnify the
lands settled on the second son against all the
father’s incumbrances. Held, that a subse-
quent mortgagee of F. and M., with notice of
this covenant, and of the incumbrances, was
bound by them, and was not entitled to con-
tribution as against K.—Power vy. Standish,
81. E.R. 526. (E.E.)

2. A. borrowed money bya mortgage of his
estates D. and §., to which B., a prior incum-
brancer on D., and C., a prior incumbrancer
on §., were parties. They consented to give
the mortgage priority over their respective
charges. The lands were subsequently sold,
and the mortgage paid out of the joint pro-
duce. The residue of the fund produced by
the sale of the S. estate was not sufficient to
pay C.’s incumbrance. Held, that C. was not
entitled to contribution against B., there not
having been any common liability to pay @
aie demand.—In re Keily, 9 I. C. R. 87.

3. When there is a mortgage over several de-
nominations of land, and the mortgagor sells
some of them for value, without the concur-
rence of the mortgagee, and the interest due
under the mortgage is regularly paid out of
the remaining denominations, the lands sold
are not discharged from the mortgage, al-

‘ though no proceedings have been taken against
136

them within twenty years. (8&4 W.4, c.
27, and 7 W. 4, and 1 Vic. c. 28). Pay-
ment of interest through a receiver appointed
under the Mortgage Act (12 G. 3, c. 10) is
a payment within the 7 W.4, and 1 Vic.,c.
28.—In re Muskerry, 91. C.R. 94. (C.A.)

 

I. 2. Contribution between Devisees,
Legatees, £e.

1. A., upon the marriage of his son B., wrote
to the mother of the intended wife a letter, in
which he stated his intention to leave B. cer-
tain property, and promised him an annuity
in the meantime. On the marriage of E.,
another son, A. agreed to settle the lands of
S., and to secure to him £400 a-year if those
lands should not produce that amount. This
agreement was carried out by a deed declaring
that any deficiency should be made up out of
As other property. Held, that E. was enti-
tled to have the deficiency made up out of
A.’s other freehold property, and, that pro-
perty devised by A. to B. was not exempt
from contribution.— Quinlan v. Q., Hay &J.,
785. (H.E.)

2. V., the conusor of a judgment, in 1802 be-
queathed leaseholds specifically, and appointed
the conusee, D., a trustee under the will. In
1808, the executor, having then assets to pay
all V.’s debts, assented to the bequest. In
1812, a specific incumbrancer instituted a suit
to sell part of V.’s property. Under the de-
cree the judgment was proved, and declared a
charge on the premises. No sale was had.
After D.’s death, in 1822, his widow, entitled
to the judgment under a settlement which
gave D. alife interest in it, filed a bill to raise
the amount. In 1835 she amended the bill
by making parties the specific legatee, his wife
and children, upon whom the chattel had
been settled by a post-nuptial settlement.
Held, that she was entitled to compel the
owner of the chattel to contribute towards
payment of the judgment.—JLanniz v. Drinan,
31.E. R. 108. (C.)

3. V. devised lands to each of his sons, F., J.,
S., and P.; directed one-half of his debts to
be paid by J., S., and P. equally, and the other
half by F., and charged the lands devised to
them with his debts in these proportions. A
creditor of V. filed a bill in 1818, to admi-
nister the estate. By the report it appeared
that J. had overpaid his share of the debts ;
S. had paid his share, with the exception of a
small sum, which was shortly afterwards paid;
and large sums were still due by F. and P.
By the final decree in 1822, F. and P. were
directed to complete their payments, or that
in default their lands should be sold. The
present supplemental bill was filed in 1839.
In prosecution of that suit it appeared that
F.’s share of the lands never was sufficient
to pay his portion of the debts. Held, that
the lands devised to J., S., and P. were liable
to contribute rateably to make up the defi-
ciency occasioned by the original insufficiency
of F.’s estate to answer the demand on it, and

 

 

[CONTRIBUTION.]

also to the costs of the suit—Newby v. Drew,
71, E, R349; 1 Jon. & L. 445. (C.)

4. V. devised fee-simple lands and lease-
holds for years to one person and his issue ;.
and other fee-simple lands to H. and her
issue; and charged all the lands so devised
with the payment of annuities bequeathed by
her will. The freeholds and leaseholds are
liable to contribute in proportion to their re-
spective values at the decease of V., to the
payment of the annuities.— Young v. Hassard,
71 E.R. 309; 1 Jon. & L. 466. (C.) -

5. Lands held under a church lease were de-
vised in trust to pay the head-rent and renewal
fines, then to suffer three annuitants to receive
annuities thereout, and subject thereto to a
devisee, who purchased the fee under the
Church Temporalities Act, and gave a mort-
gage for the purchase money. Held, that the
annuitants were not bound to contribute to
the interest on the mortgage.—Hilhouse v.
Tyndal, 13 I. E. R. 209. (C.)

 

I. 3. Tenants for life, &c., and Remaindermen.

 

I. 4. Who shall contribute: generally.

6. The tenant for life of renewable lease-
holds, held under a bishop, is bound to keep
the interests renewed, and is not entitled to
contribution from the remainderman towards
the renewals. — Trench v. St. George, 1 Dr.
& Wal. 417. (C.)

7. A sub-lessee of a bishop’s lease demised
to the plaintiff, and covenanted to renew, and
to use his best endeavours to obtain a renewal
from’ his immediate lessor, whose estate he
afterwards purchased. The bishop refused
to renew, except at a greatly increased fine,
which was paid. Held, that the sub-lessee
was bound to renew to the plaintiff, without
any contribution consequent on the increased
fine.—Lawder v. Blachford, Beat. Rep. 522.

(C.)

8. In a suit to recover tithe composition,
there was a decree for the plaintiff, with »
costs. The plaintiff levied the full amount
of the costs off one of the defendants. Held,
that the defendant was entitled to contribu-
tion from his co-defendants; and that the.
Court would compel payment of such contri-
bution by summary order.

Semble—One of the co-defendants having
died after the costs were taxed, the other
co-defendants were not bound to contribute
in a greater proportion than if he were
living.— Staples v. Smith, 6 I. E. R. 211.
(E.E.)

9. The plaintiff and others having joined in
a plan for making a proposed railway, meet-
ings were held, and the names of the plain-
tiff and defendants, in all twenty-five, were
printed in a prospectus as provisional direc-
tors, and published in different newspapers.
There was not sufficient evidence to fix the
In what

remainder of the twenty-five with having
acted as directors; but there was sufficient
to establish the acting of the plaintiff and
seven defendants. The plaintiff took no shares
in the proposed company: the defendants only
a few. At one of the meetings, which the
parties attended, V. was appointed engineer.
The proposed plan was abandoned. V.
brought an action for his bill against the
plaintiff in England (he being the only direc-
tor residing there), of which the plaintiff
gave the defendants notice. V. recovered,
and the plaintiff paid. Held, that the plain-
tiff was entitled to contribution to V.’s bill
and the costs of the action, against the de-
fendants; and that the rate of contribution
should be regulated by the number of those
who had acted as directors, so as to render
themselves liable to V.; not by the number
of those named as provisional directors, or
by the number of the shares.

That the project having been abandoned,
the bill was properly filed for contribution,
and not for winding up the affairs of the com-
pany, as if it had been a partnership.

J. had been one of the twenty-five named
as directors, but had taken an indemnity from
the solicitors of the proposed company. The
plaintiff called him as a witness on the trial
of B.’s action; and, his evidence having been
objected to, gave him a release from all
liability. By his evidence V.’s demand was
considerably reduced. The bill sought to
have J.’s share borne rateably by the plaintiff
and defendants. Held, that the release to
J. did not discharge the other parties from
their liability to contribute.

That the plaintiff would not be entitled to
contribution to the loss of J.’s share, unless
the examination of J. as a witness was neces-
sary; and an inquiry was directed on this
point.

Principle of contribution in Equity.

Distribution of costs in such asuit.—Le/froy
vy. Gore, 71. E. R. 228; 1 Jon. & L. 571. (C.)

1. A decree to pay costs is joint and several
when made against several, but those ‘costs
are in the nature of a debt. There must,
therefore, be contribution between the parties
liable—Archbishop of Dublin v. Trimleston, 18
I. E.R. 98. (C.)

2. A., seized of an estate, and indebted by
judgment, afterwards, on his marriage, settled
that estate on various trusts for his wife and
their children, if any. The settlement recited
that the estate was subject to two annuities,
and contained a covenant for quiet enjoy-
ment. There was not any covenant against
incumbrances. After the execution of this
settlement, A. purchased other estates, and
acknowledged other judgments. Held, that
the prior judgment should be levied wholly
out of the unsettled estates, if sufficient, and
that the puisne judgment creditors could not
make the settled estate contribute-—Handcock
v. H, 11. C0. R. 444. (C.)

3. A decree declared the plaintiff and other
creditors entitled to a charge upon lands. An

(CONTRIBUTIONS. ]

 

Proportions. 137

appeal to the House of Lords was resisted by
the plaintiff at his own expense; and this
decree was affirmed without costs. Before
the appeal was decided, a final decree was
pronounced in the Court of Chancery here,
directing a sale, and giving the plaintiff his
costs in the same priority as his demand.

Semble—That the plaintiff could not in any
way have obtained the costs of resisting the
appeal, as part of his costs in the cause;
but—

Held, that as the other creditors had an,
interest in, and derived a benefit from, his
resistance to the appeal, they were bound to
contribute to the costs reported to them,
rateably in proportion to the amount of their
respective demands.—Hamilton v. Synge, 4 I.
C. R. 551; 71. Jur. 121. (C.)

 

II. In wHaT PROPORTIONS.

4. A testator, in an imperfect passage, refer-
red to a trust deed for payment of his debts,
and expressed his desire “that said deed
should, notwithstanding” his “death in the
intermediate time, or before all” his debts
should “be fully paid off and discharged out
the produce of” his “estates, shall rateably
contribute to the payment of my debts in pro-
portion to the annual profits now arising from
each part respectively.” He confirmed the deed,
and charged all his estates with the debts
then, or which should thereafter be due by
him; and, “subject to said debts in manner
aforesaid,” gave the estates to different de-
visees. He subsequently executed a mort-
gage for the same purposes as the trust deed.
Afterwards, he republished his will by a codi-
cil, giving the estates to the same uses, in-
tents, and purposes mentioned in his will.
Held, that the estates should contribute in
proportion to the annual profits at the date
of the will, and not in proportion to their
value at his death—O’Dell v. Harte, Beat.
Rep. 449. (C.)

5. V. devised lands to each of his sons, F., J.,
S., and P.; directed one-half of his debts to be
paid by J.,S., and P. equally, and the other
half by F.; and charged the devised lands with
his debts in those proportions. In 1818, a
creditor of V. filed a bill to administer V.’s
estate. The report stated that J. had over-
paid his share ; 8. had paid his share, save a
small sum, which he paid soon afterwards. F.
and P. still owed large sums. In 1822, the
final decree directed them to pay what they
owed; and that in default of payment their
lands should be sold. In 1839, was filed a
supplemental bill, during the prosecution of
which it appeared that F.’s share never had
been sufficient to pay his share of the debts.
Held, that the lands devised to J., S., and P.,
must contribute rateably to supply the defi-
ciency occasioned by that original insuffi-
ciency, and also to the costs of the suit.—
Newby v. Drew, 7, I. E. R. 349; 1Jon. & L. 445.
(C)

6. V. devised to D. and his issue fee-simple
lands and leaseholds for years: to H. and her

18
138 In what

issue devised other fee-stmple lands; and
charged all the devised lands with annuities
bequeathed by that will. Held, that the free-
holds and leaseholds should contribute, in
proportion to their respective values at V.’s
decease, to pay the annuities; and that the
leaseholds were not liable in the first instance.
— Young v. Hassard, 7 I. E. R. 309; 1 Jon. &
L. 466. (C.)

1. V., seized and possessed of freehold and
chattel leases, devised thus :—‘“I give, devise,
-and bequeath my farm of B. to my grandson
M., and every kind of stock thereon, together
with one-third of every other property that I
now possess and am entitled to.” V.then de-
vised similarly other farms, and the remaining
two-thirds of the residue to two other grand-
sons respectively. He then left £18 a-year to
his wife, “to be paid to her during her life
by my said three grandsons, share and share
alike, or by their heirs or executors ;” and di-
rected £300 to be invested on a certain event,
“the said sum to be deducted equally from
and out of the property herein first be-
queathed to my said three grandsons, who, or
their heirs, on the fall of any lease, are to be
equal sufferers, pursuant to their respective
proportions.” At the date of the will V. was
seized of the farm of G., but did not devise it
by name. Held, that, either there was not to
be any contribution, but that each was to bear
his own loss; or, that only the lands devised
by name were to contribute, and that therefore
G. was not liable.
Semble—That the claim was bad for uncer-
tainty—Spunner v. Dwyer, 4 Dr. & War. 477;
2 Con. & L. 432. (C.)

2. A. confessed a judgment, and died intes-
tate, seised of fee-simple estates, and pos-
sessed of a term of years. G., his only son,
and next-of-kin, died under age, having be-
queathed the term to M., wife of D.; and the
real estates descended on B., his heir-at-law.
M. died; D., executor to G., took out admi-
nistration to M. In 1834, D. mortgaged the
term as his own property to V. Later in the
same year B. filed a bill to have the judgment
paid off out of the term, but a general demur-
rer to the bill for want of equity was allowed.
In 1835, B. filed a bill for the same purpose
against D. and V. A demurrer for want of
equity to this bill was allowed. In May 1837,
B. filed a third bill for the same purpose
against D. and V., but did not serve V. with
process, or prosecute the suit. In Nov. 1837,
D. conveyed the equity of redemption to V.
In 1841, D., as G.’s personal representative,
obtained against B., as G.’s heir, a decree to
pay the money. In that suit, B. did not set
up any claim respecting the judgment.—
Held, that B. had lost his right to be recouped
out of the term the amount of the judgment
which had been levied out of C.’s real estate
in his hands.—Boyd vy. Belton, 8 I. E. R. 113;
1 Jon. & L. 730. (C.)

8. A deed of partition, in 1838, allotted to
G. the premises of A., B., and C., subject to
£15. 7s. 8d., one-third of an annuity of £50,
late currency.

(CONTRIBUTIONS. ]

 

Proportions.

In M. Term, 1834, a judgment for £700 had
been recovered against G. On the 12th Dec.
1838, G. conveyed B. to H., free from the
annuity and other incumbrances, and subse-
quently became entitled for life to the pre-
mises D. By indenture, 6th Nov. 1846, being
the settlement executed upon the marriage of
G. with J., reciting the title of G., amongst
others, to A., and that same are subject to
the annuity of £15. 7s. 8d., and also reciting a
mortgage of D., G. conveyed A., C., and D. to
trustees, upon trust, “after first paying the
head-rents and other charges to which the
said several lands, houses, and tenements
were severally and respectively liable,” to pay
the rents to J. for life, for her separate use.
This settlement contained no covenants by G.
In 1852, G., as heir-at-law of H., became enti-
tled to B., and also the premises E. G. died,
leaving no personal estate, but having devised
B. and E. to the petitioners. Held, that B.
and E. were primarily liable to the judgment
of 1834, That, in respect of the annuity of
£15. 7s. 8d., there was a right of contribution
as against the premises comprised in the set-
tlement of A. and C.—Alker vy. A. 31. Jur.
N.S. 185. (C.)

4. W., being seized of an estate tail in
Whiteacre, judgments were obtained against
him in 1824. Upon his marriage, subsequently
to that year, Whiteacre was settled upon him
for life, with remainders over for the benefit
of the issue of the marriage. A recovery was
suffered to the uses of the settlement. In
1825 W., by purchase, acquired Blackacre in
fee. In 1826 several other judgments were
obtained against him. In 1829 the plaintiff
agreed to lend to W. £2000 upon mortgage of
his fee in Blackacre, and of his life estate in
Whiteacre, provided that the judgment credi-
tors of 1824 would release Blackacre from
their judgments, to which they assented ; and
then (1829) executed a deed-poll, which re-
cited that W., being desirous to have Black-
acre clear of incumbrances, had requested the
judgment creditors of 1824 to release it from
the incumbrances thereupon by their judg-
ments; and-that they, being satisfied that the
residue of W.’s lands were a sufficient security
for their judgments, agreed thereto. By the
operative part they released, exonerated, and
for ever discharged Blackacre from their re-
spective judgments, and from all writs of exe-
cution and executions, and every other writ
then sued out, or thereafter to be sued out,
against Blackacre, by virtue of their respec-
tive judgments, or otherwise in relation
thereto; and agreed (for their respective
judgments only) to indemnify W. for all costs,
damages, and expenses which should at any
time be incurred by reason of Blackacre being
attached in execution under those judgments.
Afterwards W. executed the proposed mort-
gage to the plaintiff. Held, that both at law
and in equity the operation and effect of the
deed-poll of 1829 was to exonerate Whiteacre
as well as Blackacre from the rights and reme-
dies of the judgment creditors of 1824.

A sci. fa. under O’Neill’s Act, issued sub-
sequently to the execution of the above-
[CONTRIBUTION.—CONTRIBUTORIES. ]

mentioned release, and to the death of W., at
the suit of one of the above-mentioned judg-
ment creditors of 1824, against the three
infant daughters of W. (who were tenants in
tail of Whiteacre under the marriage settle-
ment of 1824) as his co-heiresses-at-law, and
against certain other persons as terretenants
of Whiteacre. The Sheriff in his return stated
that he had summoned the three infants, “ co-
heiresses of the above-named W. deceased,”
and also that he had summoned the terre-
tenants of Whiteacre specially named in the
sect. fa., and testified that there was not an

other heir or heiress of W., and that he (the
Sheriff) had not served any other terretenants
of Whiteacre, or of any other lands of W., ex-
cept those specially named in the sct. fa.
Judgment of revivor was obtained on default.

Held, that the original judgment was by the
revivor re-established as against Whiteacre,
and that the infants, having pretermitted
their opportunity of pleading the release to
the sci. fa., could not afterwards set up that
release as a defence in equity against raising
the amount of that judgment out of White-
acre.

A person seized of an estate, and indebted
by judgment, afterwards upon his marriage
settled that estate upon various trusts for the
benefit of his intended wife, and the children
of the marriage. The settlement contained a
recital that the estate was subject to two an-
nuities, and also contained a covenant for
quiet enjoyment, but did not comprise a cove-
nant against incumbrances. Subsequently to
its execution the settlor acquired other estates
by purchase, and acknowledged other judg-
ments. Held, that the prior judgment should
be levied wholly out of the unsettled estates,
if sufficient, and that the puisne judgment
creditors had no right to make the settled
estate contribute.

In a suit for an account, foreclosure and
sale, by a plaintiff having two incumbrances
upon the estate, he is not entitled to all his
costs of suit in priority with his elder incum-
brance, but shall be decreed his costs of suit
in priority with that incumbrance, save so far
as they are occasioned by his puisne incum-
brance; and the costs so occasioned he shall
be decreed to have in priority with the puisne
incumbrance.

The 11 & 12 Vie., c. 48, s. 72, enacting that
the release of any portion of lands in Ireland
from any judgment affecting them shall not
nullify or affect the force of such judgment as
regards the residue of such lands, or any other
property not specially released, does not apply
to releases executed before the passing of that
statute.—Handcock v. H., 11. C.R. 444. (C.)

1. A. B., and C. were seized severally
of equal portions of the lands of D., which
were subject to a mortgage and to colla-
teral judgments against them, obtained in
1846. The lands were sold in the I. E. Court
in separate lots; A.’s share being insuffi-
cient to pay his one-third of the mortgage,
the deficiency was paid out of the proceeds
of B.’s share. The judgment against A. was
assigned to a trustee for B. <A. was also

 

139

seized of the lands of E., against which a
judgment, obtained in 1856, had been regis-
tered as a mortgage. The conusee of the latter
judgment had purchased one of the lots of D.
in the I. E. Court, and thus had notice, or an
opportunity of ascertaining the fact, of the
assignment of the judgment. Held, that as to
the amount of the deficiency of A.’s share of
the mortgage, paid out of the proceeds of
B.’s share of D., the judgment of 1846 had
priority over the judgment mortgage of 1856.
Scott v. S., 91. C.R. 319. (R.)

 

CONTRIBUTORIES.
See Jornt-Stock Company.

Statute.

The Companies Act 1862—25 & 26 Vic., c. 89
Part IV., ss. 74 to 173 refer to winding up of
public companies ; ss. 98, 99 refer to settling
list of contributories.

2. The deed of a Banking Co. provided that
three directors at least were necessary to con-
stitute a “court of directors ;” that such of
the original shares as had not been subscribed
for might be sold by the “ court of directors ;”
but that their purchasers should not be con-
sidered as their proprietors until they had
paid the prige. Three directors were ap-
pointed. On’died. Another sold his shares
and ceased to act. 8. remained the sole di-
rector. He ordered many unappropriated
shares to be entered in the name of F., a
nominal party ; circulated false balance-sheets
exaggerating the bank’s prosperity; and sold
the shares as original shares on which divi-
dends had been paid. The transfer deeds.
were signed by 8., and two non-directors.
The bank became insolvent. Held, that the
issue by §S., instead of by a court of directors,
of the unappropriated shares was ultra vires,
and void; that the transferees could not have
insisted on the validity, as against the original
shareholders, of the transfers to them, and
were not liable as contributories ; that S., if
he alone had power to issue the shares, having
sold them by means of fraudulent representa-
tions, the contract was vitiated by fraud, and
the purchasers were not liable to be placed on
the list of contributories—ZJn re Ginger, 1 I.
Jur. N.§. 3738; 51.C. R174. (R.)

3. A., B., and C. were appointed directors of
a bank under the partnership deed, in 1842.
B. was appointed managing director, and C.
local manager of the bank. A., B., and C.
were constituted the court of directors. A.
died in 1846. In 1848, V. was appointed
director in his place. Up to 1854, B. had
made to his brother enormous advances from
the bank. C. remonstrated, but took no other
action ; and continued local manager till 22nd
March 1855, when he gave a letter to B., say-
ing—“I beg to resign my office of director of
this bank.” C. then ceased to act. On the
29th March, C. transferred to B. all his shares
for a higher value (which, nevertheless, B.
paid) than they were worth. No notice of the
transfer was given. It was not approved of
by the court of directors as the deed required.
140

In February 1856, the bank, hopelessly in-
solvent, stopped payment. Held, that C.’s
resignation was null; that the transfer of his
shares was invalid; and that he was liable to
be placed on the list of contributories—Ex
parte Kennedy, 11. Jur. N.S. 446. (R.)

1. A. accepted, without giving any con-
sideration, a transfer of shares, the calls on
which had not been paid. The instrument of
transfer stated that the transferee took the
shares subject to all the conditions upon
which the transferor held them. He after-
wards transferred them for valuable considera-
tion. Held, that, on the winding-up of the
company, he should pay the calls.

That, he being a contributory in respect of
other shares, the Master had jurisdiction under

Lis 11& 12 Vic., c. 45, ss. 66 and 92, to order

im to pay the unpaid calls on the shares in
respect of which he was not upon the list of
contributories—Re C. Banks,2 I. Jur. N.S.
44, (R.)—[Affd. ibid, 85. (C.)]

2. The deed of partnership of a joint-stock
bank provided that the capital of the bank
should be £500,000, in ten thousand shares,
with £10 paid up on each share. In Feb.
1855, the number of shares issued was 4055.
The paid up capital was £40,550. §., a direc-
tor, upon a false representatioggto F., and an
offer of indemnity, induced him to allow a
number of shares to be entered in his name;
and without the knowledge of F., issued a
great number of the unappropriated shares,
and, entered them in the share-register book
in the name of F., debiting him in the books
of the bank for the price of them. To pro-
cure purchasers for those shares, two docu-
ments were prepared, one purporting to be a
prospectus of the company, which treated the
paid up capital as £100,000, made the number
of appropriated shares far exceed the real
number, and falsely stated the names of the
directors. The other document was a false
and fabricated balance-sheet of the bank.
Those documents were transmitted to Eng-
land, and circulated by J., the brother of S.
G., induced by false representations, and the
statements contained in those documents,
bought, in May 1855, a number of the shares
entered in the name of F. The transfer deeds
were executed by F., and certificates of trans-
fer, describing the shares according to the
false entries in the bank books, were given to
G., signed by 8., K., and J., of whom S. alone
was a director, The purchase-money was
placed in the books to the credit of the bank.
G.’s name was entered in the share-register
book, and returned to the Stamp-office as the
proprietor; and, on the next dividend day, he
received a dividend upon them, as if they had
been old shares transferred by a bona fide
holder. Upon a petition presented for wind-
ing up the company, Held, that G., having been
induced to purchase the shares by the frauds
and misrepresentations of 8. and his agents,
was at liberty to repudiate the contract as
against the existing shareholders, and that he

should be removed from the list of contribu-
tories.

 

[CONTRIBUTORIES.]

Semble—The rule that directors are not the
agents of a company to commit a fraud cannot
apply to a case where the fraud complained of
relates to a matter which is of the essence of
the contract, and a part of it Ex parte Ginger,
21. Jur. N. 8. 221. (C.)

8. The deed of partnership of a joint-stock
bank provided that a director of the company
might resign his office by giving one month's
notice in writing to the “court of directors ;”
that three directors should be necessary to
constitute a “court ;” and that every director
should hold a certain number of shares. K.,
V., and S. were appointed directors, and con-
stituted the “court.” K., being dissatisfied
with the mode in which the affairs of the bank
were being conducted, tendered, by letter to
S. alone, his resignation ; and from that time,
22nd March 1855, ‘ceased to act as director.
On the 29th March, K. transferred all his
shares to S., but the formalities required by
the deed upon a transfer of shares were not
observed. The bank subsequently stopped
payment. Upon a petition being presented
to wind up the affairs of the company—Held,
that K. was bound to have complied with all
the formalities of the deed; that his resigna-
tion and transfer were invalid; and that his
name should be placed upon the list of con-
tributories.—Ex parte Kennedy, 2 1. Jur. N. 8.
278. (C.)

4, Liability to creditors is not the test of
contribution under the Joint-stock Companies
Winding-up Acts 1848 and 1849. Therefore,
where the partnership deed of a joint-stock
bank provided that the transferor of shares
should, from the date of the transfer, have no
claim or demand whatsoever, either at law
or in equity, upon or against the society, or
any of the proprietors thereof, for the time
being, other than the transferee, except for
dividends declared previously to the transfer,
and on payment of any further instalment or
instalments which might have been previously
called for, should be for ever discharged from
all further liabilities and obligations in respect
of the shares transferred, and from all further
claims and demands on account of the same.
Held, that shareholders who had transferred
their shares bona fide and for valuable con-
sideration, should not be placed on the list of
contributories, although they were still liable
to the creditors of the bank, the three years
from the transfer within which creditors might
proceed against them under the Bankers Act
(6 G. 4, ¢. 42, s. 9) not having expired.

The Master placed the name of an original
shareholder, who had transferred his shares,
on the list of contributories, as a qualified
contributory. The shareholder moved, by
way of appeal, that his name should be omitted
from the list. The official manager did not
appeal. Held, that the latter could not, on
the hearing of an appeal motion, contend that
the transfer was informal, and that the share-
holder’s name should be placed on the list as
a contributory, without any qualification —Ex
parte Stirling, 6 I. C. R. 180; 2 1. Jur. N.S.
403. (C.A.) =
[CONTRIBUTORIES. ]

1, A mining company was formed on the cost-
book principle. By the 84th rule every share-
holder was to be apprised of a call, by a circular
sent sixty days previously to the time fixed
for payment thereof, stating the time and
place of payment, and pointing out the con-
sequences of non-payment. The 35th rule
provided that in case of non-payment of the
call at the appointed time, the committee
might declare the share forfeited. The 38th
rule provided that the rules could only be
altered at a special general meeting of the
company, convened by notice specifying the
amendment or alteration proposed to be made,
such special general meeting to be called at
the request in writing of shareholders holding
2500 shares; and the 14th rule provided that
shareholders to that amount should be present
at such meeting. At a meeting of the com-
mittee on the 9th Dec. 1853, it was resolved
that a special general meeting should be called
to suspend the 34th rule, and to make a call
on the shareholders. A special general meet-
ing was accordingly held on the 27th Dec.
1853, at which it was resolved that the 34th
tule should be suspended, and that a call
should be made; the first instalment to be
payable on the 14th Jan., and the second and
third instalments on the 14th April and the
14th July 1854; and that the shares upon
which a call should be due on the 21st Jan.
1854 should be declared forfeited. Share-
holders holding 2500 shares were not present
at the meeting of the 9th or 27th Dec. On
the 24th Jan. 1854, at a meeting of the com-
mittee, it was resolved that the shareholders
should be informed by advertisement that any
share on which a call should be due on the
20th Feb. should be declared forfeited. A
further meeting of the committee was held on
the 7th Feb. 1857, calling a special general
meeting of the company on the 27th Feb.,
which was held, and at which it was resolved
that fourteen days’ further time should be
given for payment of the call, and that the
meeting should be adjourned until the 13th
March 1857, for the purpose of confirming the
forfeiture of shares on which a call should be
thendue. At the adjourned meeting a number
of shares were declared forfeited. Held, that
the 14th and 388th rules, providing the course
to be adopted to set aside or vary the rules,
were matter of substance and not of form, and
should be strictly complied with.

That the 34th rule had not been properly
rescinded, and the call was therefore impro-
perly made. 7

That the forfeiture was not duly declared,
although it had not been declared until the
sixty days had expired, and therefore the hold-
ers of the shares should be placed on the list of
the contributories.

The 22nd of the cost-book rules provided a
mode by which shares might be relinquished,
which was not complied with by the holders
of the shares declared to be forfeited. Held,
that they could not avoid a contribution on
the ground of acquiescence in the forfeiture.

That, although persons who took part in
the irregular meetings and declaration of for-
feiture could not insist on contribution by the

 

141

holders of the shares, the official manager, on
behalf of the other members of the company,
might require them to be placed on the list of
contributories.

The right to declare a forfeiture of shares is
strictissimi juris, and, therefore, in the absence
of express stipulation in the deed of settle-
ment or rules of a mining company formed on
the cost-book principle, shares cannot be
declared to be forfeited for the non-payment
of calls.—In re Mizen Head Mining Company,
61. C, R. 439. (R.) :

2. A agreed to sell his shares in a joint-stock
bank to B., at par; the shares to be transferred
by A. to C., who was to hold the same as a
trustee for B., but charged with the purchase
money and interest at £5 per cent., payable
half-yearly, until the principal was fully paid.
C. agreed to hold the shares upon the trusts
expressed. The shares afterwards were trans-
ferred by A. to C. by deed, but the deed of
settlement required a notice of all proposed
transfers to be left at the office of the direc-
tors, which was not done. The assignment
not having been registered when the first
dividend aftér the transfer became due, A.
received it and retained the surplus, after the
payment of the interest of the purchase money
of the shares, on account of another debt due
to him by B. A subsequent dividend was
received by C., and paid over by him to A,,
who appropriated it as he had done with the
former dividend. Held, that A. still continued
owner of the shares, and was properly included
in the list of contributories.

Semble—Non-compliance with the formal
conditions required by the deed of settlement
of a company for transfer of the shares, does
not vitiate a transfer by a shareholder.—Re
Tipperary J. S. Bank, ex. p. Scully, 6 I. C. BR.
72; 11. Jur. N. 8. 434. (R.)—[Revd., 6 L
C.R. 524; 21. Jur. N.S. 450. (C.)]

3. P., the owner of a mine, sold his interest
in it to a joint-stock company for 5000 shares,
to be treated as having £1 paid up upon each.
According to an agreement between himself
and thé directors, one-half of those shares was
transferred to the directors for their own
benefit. The co. was ordered to be wound up,
and the directors to whom those shares had
been transferred were declared contributories
in respect of the shares, as unpaid shares. P.,
having retained some of the shares, was de-
clared a contributory in respect of them.
Some of the directors were unable to pay the
contribution in respect of the shares for which
they were so declared contributories. Held,
that P. was liable for their contribution.

That such liability could be enforced in a
proceeding under the Joint Stock Companies
Winding-up Act.—Ex parte Perrier, 71. C. RB.
256. (C.)

4. The directors of a projected company
purchased a mine from its “promoters” for a
large sum, for the purpose of completing
a company and working it. Shortly afterwards
the promoters gave £300 shares a-piece to
each of the directors. Held (in the absence
142

of frand), that the directors were liable to pay
the full value of such shares to the official
manager, and to be declared contributories on
foot of such shares.—Ex parte Chatterton, 3 I.
Jur. N.S. 187. (M.O.)

 

CONVERSION.
— Of Estates and Assets. See Bxecurors, XI.

 

CONVEYANCE.

— To Assignees. See BANKRUPTCY, X.

— Generally. See Deep.

— Fraudulent. See Dusp, V.—FRAUDULENT
ASSIGNMENT.

— On Sale by Court.
JUDICIAL.

— To Purchaser, and costs of. See VENDOR
AND Purcuasrr, VIII—Practice, Sates

JUDICIAL.

See Deeps, passim, VENDOR AND PURCHASER,
Vill.

See Practicr, SaLes

 

Statutes.

Amending laws relating to conveyances of
estates vested in mortgagees—13 & 14 Vic., c.
60; 15& 16 Vic., c. 79.

Establishing Office for registering Memo-
rials—2 & 3 W. 4, c. 87.

Relating to conveyances of real property—
8&9 Vic. c. 119.

Conveyances of estates and funds vested in
trustees—13 & 14 Vic. v. 60; 15 & 16 Vic,
c. 55.

Stamp Duties—5 & 6 Vic. c.82; &8 &Y
Vic., c.2; 11 & 12 Vie, ¢.9; 14 & 15 Vic., c.
18; 15 & 16 Vie, c. 21; 17& 18 Vic, c. 83.

 

CO-OBLIGORS.

See BonD—PLEADING, ParriEs.

 

CO-PARCENERS.
See Estate, VI., VII.

 

CO-PARTNERS.

See PaTRNERS.

 

COPIES.

See Practics, Corres.

 

COPYRIGHT.
See Statutes, ConstRvcTION oF, II.

I. GENERALLY.
Il. Private Lerrers.
TI. Booxs.
IV. Immorav Pusrications.
V. EeINty Mars, Musicat Comrositions,
C.

 

[CONVEYANCE.—COPYRIGHT.]

“I. GENERALLY.

1. A mere question of title between an
author and a bankrupt publisher, respecting
which of them is the owner of a portion of a
copyright, cannot be decided in a bankruptcy
matter.

Semble—When an author allowed the pub-
lisher to advertise himself as the owner of the
copyright, though it had not ever been assigned
to him in writing, the copyright should, in
bankruptcy be dealt with as the publisher's
property.—In re Curry, 12 I. E. R. 382. (B.)

 

III. Corrrieut in Books.

2. So far as concerns copyright, reports of
decisions in Courts are to be considered in the
same way as any other literary work.

Quere—Whether cases published in the law
reports may be reprinted at length ina treatise
on the particular subject to which they re-
late?

It is piracy to collect together, and to re-
print from the reports of legal decisions all
the cases upon a particular subject, though
the collection and classification be news, and
though several unpublished decisions and
notes be added.

This Court will interfere to protect, by in-
junction, the copyright of the assignee of the
author (the reporter of legal decisions), though
at the time of the piracy a written assignment
had not been made, and the assignee’s title
was merely equitable. The Court will dis-
regard the author’s permission to infringe the
copyright, if given after he has parted with
his equitable title for value, and it has ap-
peared on the title-page of the work that it
was printed for the equitable assignee of the
copyright.—Hodges v. Welsh, 2 I. E. R. 266.
(R)

 

V. Copyricut in Prints, Mars, &c.

3. At common law, a painter has, before
publication of his picture, a right to prevent
any person copying it. The owner of the
picture who has purchased it from the painter
has the same right. After publication, that
right is lost. The sale of a picture is not a
publication of it. The publication of a wood
engraving in a magazine, with an article de-
scribing the picture, is not a publication of
the picture itself.

The exhibition of a picture at a public ex-
hibition or gallery, where copying it would
not be permitted, is not a publication of the
picture; nor is the exhibition of the picture
for the purpose of obtaining subscribers to an
engraving of it.

A., the painter of a picture sold it to
B., who, for valuable consideration agreed
to sell to C. the sole right to make and publish
an engraving of the picture, and to exhibit it
for short periods at any of the principal towns
either in Great Britain or Ireland; in order

| that C. might obtain subscribers, and other-

wise derive a full advantage in the publica-
tion and sale of the engraving. The picture
having been so exhibited, the respondent ar-
ranged in his own studio a group which bore
[CORONERS.—CORPORATION.

an exact resemblance to the picture, and took
photographs for the stereoscope (coloured as to
correspond with the picture), which he pub-
lished and sold. Held, that C. was entitled to
an injunction to restrain the publication and
sale of the photographs, if the picture had
not previously been published.

It appearing that the picture had been
previously exhibited at the Royal Academy,
London, and at the Manchester Exhibition of
1857, the Court referred it to the Master to
inquire whether there were rules, resolutions,
bye-laws, or regulations to prevent the taking
of copies, sketches, or drawings of paintings,
or works of art sent there for exhibition.—
Turner v. Robinson, 10 I. C. R. 121. (R.)—
es” 101. C. R. 510. (C.A.); 51. Jur. N.S.
385.

 

CORONERS.
See Practicr, Wait, I.
1. An attachment will not be directed to
the coroner until legal grounds for doing so

have been laid.—Malcolmson v. Gregory, H. &
Jon. 152. (E.E.)

2. A coroner discharged, by the authority
of the Great Seal, from his office, for neglect
of duty.—Ex p. Pasley, 3 Dr. & War. 34. (C.)

 

CORPORATION.

Turrr Orricers, Duties, Ricuts, Powsrs,
AND BYE-Laws.

I. Jurispicrion ovER: Ricuts, PowErs,
AND LIABILITIES OF.
1. In general.
2. Of Municipal Corporations since
the 3 & 4Vic., c. 108.

Il. Cuarter, ForreiturE or — ConsE-
QUENCES OF FORFEITURE.

Ii. Byz-Laws.

IV. Leases, AGREEMENTS, AND OTHER D1s-
POSITIONS OF PROPERTY BY CORPORA-
TIONS.

V. Actions AND SUITS, BY AND AGAINST.

 

I. JURISDICTION OVER: Ricuts, PowERs, AND
LiaBILITIES OF.
1. Generally.
2. Of Municipal Corporations since
the 3& 4 Vic., c. 108.

 

I. 1. Rights, Powers, §c., generally, of Corpora-
tions.

3. A devisee of lands in Ireland to Trinity
College, Dublin, for the promotion of the
knowledge of the Irish language—Held, void.

Devises to corporations, whether with or
without license, are void in Ireland, under the
exception in the 10 Car. 1, sess. 2, ¢. 2, s. 10.—
Attorney- Gen. v. Flood, Hay. & J., App. xxi;
xxxviii; Hayes’ Rep. 611. (C.)

4, The Corporation of C. having accepted
from the Crown a charter conferring upon
them privileges; and requiring the mayor on
his appointment to bind himself by oath, not to
permit an estate of inheritance in lands (vested
in the corporation by a prior title, not from

 

143

the Crown, for an express purpose) to be
granted; or the rents thereof aliened for
more than one year. Held, that the corpora-
tion adopting the charter were bound by the
restrictions of the oath, although the lands
were not derived from the Crown.—Att.- Gen.
v. The Corporation of Cashel, 2 Con. & L. 1;
8 Dr. & War. 294. (C.)

5. A Local Act enacted that the Municipal
Council of Belfast might borrow at interest
any sum which, together with any previous
loan, should not exceed £150,000, on the
credit of the rates authorised to be raised by
that Act; and, in the event of all or any part of
such moneys being repaid by them, to re-borrow
the same; but so, nevertheless, that thereshould
not be so owing, on the security aforesaid any
more than the £150,000, in the whole, at any
one time; and for securing the repayment of
same, with interest, the council might assign
over the rates to the lenders. Every such
assignment was to be by deed, under the com-
mon seal. If the council could at any time
borrow any sums for any of the purposes of
the Act, at a lower rate of interest than was
borne by existing securities, they might bor-
row such sums as they should think proper, at
such lower rate, in order to pay off the secu-
rities bearing the higher rate, notwithstanding
they had previously borrowed the entire of the
£150,000; and charge the rates with payment
of those sums, and interest, in such manner
and subject to such regulations as in the case
of other moneys borrowed on mortgage.

Of the money borrowed on the credit of the
rates, and by that Act made liable to be mort-
gaged, the council might (sec. 44) apply any
sum not exceeding £100,000, for widening old
and making new streets, removing projections,
and purchasing property, for all or any such
purposes ; and the remainder of the money to
be borrowed for the purpose of effectuating
the several other works and purposes of the
Act. The lenders were not bound to see to its
application.

By the same Act the council were empowered
to purchase a vast number of houses, to widen
old streets and to make new ones; to take upon
lease any land which they might think conve-
nient for those works, and to erect same there-
on; to pay the costs and rent out of the
moneys to be raised under the Act; to agree
with the owner of any house or grounds within
the borough, for the absolute purchase thereof,
&c., and to pay for same out of the rates by
that Act authorised to be levied; to take on
lease the existing market-places, as well as
additional lands for a like object, and to erect
market-places thereon, &c. And for defraying
the costs of carrying the Act and all its powers
into execution, they were empowered to make
an annual rate upon the occupiers of houses.
Such rates and all other moneys to be received
under the Act were to be applied in paying,
first, the expenses of obtaining it; secondly,
the interest of the sums borrowed on mortgage
thereunder ; thirdly, the expenses of improv-
ing the streets, and effectuating the purposes
of the Act; and lastly, in paying off the prin-
cipal sums so borrowed.
144 Rights, &.,

The council borrowed the £150,000 on mort-
gage of the rates, under deeds bearing the
corporate seal, as provided by the Act; raised
large sums upon certificates signed by indi-
vidual members of the body, and admitting
that those sums had been paid by the lenders
to the credit of the corporation; and obtained
still further advances by overdrawing accounts.
Those extra moneys, as well as the £150,000,
were raised and expended to enable the council
to effect some of the various purposes contem-
plated by the Act, and which the £150,000 were
insufficient to accomplish. Sums greatly ex-
ceeding £100,000 were expended on those pur-
poses to which (as declared by the Act) any sum
within that amount was applicable. Upwards of
£60,000 were expended on the other objects of
the Act. The council paid interest on all the
loans, and treated them as if they equally
affected the rates: and sixteen of the persons
who were members of the council during these
transactions were now named in the informa-
tion as special respondents.

Held, that the council were not authorised
to charge the rates by mortgage, certificate,
or otherwise in the way of loan, or with the
interest on more than £150,000; and that the
rates were not properly chargeable with any
such greater sum or interest. And the pe-
titioner was declared entitled to have the
rates and other properties of the borough
exonerated from, and indemnified against, all
unauthorised loans, and the interest thereof,
by those respondents; but without prejudice
to any question which they might be entitled
to raise, on the return of the Master’s Re-
port, as to their right to be recouped said
moneys out of such funds or properties (if
any) as the Court might think justly appli-
cable to that purpose.

Held, that of the £150,000 the council were
not authorised to expend more than £100,000
on the street purposes specified in the Act—
(s. 44.)

That the Corporation were trustees of all
the moneys received for rates or loans under
the Act, for the purposes of it.

By a subsequent Local Act, after reciting
the present one, and that it would tend to the
benefit of the inhabitants of Belfast, if the
Corporation were empowered to supply them
with gas, it was enacted that the provisions
contained in the former Act, except such of
them as were by that (second) Act altered or
otherwise provided for, should, where the same
might be applicable, and were not incon-
sistent with the provisions of the latter, ex-
tend to it and to the several purposes and
things thereby authorised; and both Acts were
to be construed together as forming one.
And the council were authorised to borrow
at interest, on the credit of the rates to be
raised under the former Act, and of the rent
and other money to arise under that (second)
Act, and from the making and vending of gas,
and otherwise in respect of the gas-works
which should belong to the council, in pur-
suance of that Act, and on the credit of all
other the property vested in the Corporation
by virtue of both Acts, any sums not exceeding
£50,000, nor, together with the moneys to

[CORPORATIONS.]

 

Generally.

be borrowed under the first Act, the sum of
£200,000: and to secure their repayment with
interest, the council might assign over to the
lenders the said rates, rents, and property; and
they might purchase any lands required for the
erection of gas-works authorised by that Act,
&c., and manufacture gas and provide gaso-
meters for lighting the public streets; and pur-
chase or take on lease any gas-works or appa-
ratus then or thereafter to be erected for the
purpose of supplying the inhabitants with gas.
And they were required, after such gas-works
should have been established by them, to
keep separate accounts of all moneys received
and expended under the Act, in respect of
such gas-works, &c. And if they should ma-
nufacture gas for lighting the streets, they
were empowered to supply it to any person in
the borough. Various other powers were
conferred, and restrictions imposed upon the
council; all of which would have been proper
had it been the intention of the Legislature
that they should supply the borough and its
inhabitants with gas, but there was no express
direction to that effect contained in the Act.
It was provided, however, that the moneys to
arise from the rents, and to be otherwise re-
ceived by the council under the Act, should
be applied, first, in payment of the expenses
of obtaining it; secondly, in payment of the
interest on the principal moneys borrowed by
virtue of both Acts; thirdly, in defraying the
expenses of manufacturing gas, and of light-
ing and improving the streets, and in execu-
ting the several purposes of both Acts; and
lastly, in paying off those principal sums.
The lenders were not obliged to see to their
application.

The £50,000 was duly raised, but the coun-
cil did not apply any portiou of the money
to the erection, purchase, or leasing of gas-
works, they treated it as a common fund
with the £150,000 and applied it to provide
market places, the improvement of the streets,
and other general purposes, the subject of the
first Act, which they incorporated with the
second to all intents.

Held, that the £50,000 were, by the second
Act, specifically appropriated to the purposes
mentioned in it regarding the manufacture
of gas; and, not having been so applied, the
petitioner was declared entitled to have the
rates and other properties exonerated by the
special respondents (members of the council),
but with a like reservation as in the case of the
unauthorised loans.

The relative position of a Municipal Corpo-
ration under 3 & 4 Vic., c. 108, and of indivi-
dual members of its governing body, whether
active or assenting merely, and the doctrines
andremedies applicable to them where breaches
of trust have been committed, referred to and
enforced.

’ The first of the above Acts directed that
the council should appropriate out of the an-
nual rates a percentage upon the amount
borrowed, and should apply the same, either
to the gradual extinction of the mortgage
debt, or to the formation of a fund to be
accumulated for its discharge; and that it
should be lawful for the council to invest the
Generally.

fund to be so accumulated in the public stocks,
or in the government or real securities.

They appropriated a yearly sum, and per-
mitted it to form a sinking fund, but instead
of investing the amount on any of the securi-
ties specified, they directed the treasurer of
the borough (who dealt with the money in
such a way as showed that he had, with them-
selves, joint dominion over it), to place it
upon loan in a private bank, of which he was
a director, and on behalf of which he now
claimed a lien on the sum, as against an ad-
vance made to the council on the overdrawn
accounts.

Held, that it was the duty of the council (as
they had not paid off any portion of the mort-
gage debt) to have formed a sinking fund, in
the manner and for the purpose mentioned in
the Act: and the special respondents, and the
respondent the treasurer were declared liable
to make good the amount, with interest, and
were ordered to invest it in stock and transfer
same to the credit of the cause.

Each of the Acts required that yearly ac-
counts should be kept, showing the receipt,
expenditure, and mode of application of all
funds levied thereunder; that these accounts
should be audited pursuant to 3&4 Vic., c.
108, s. 70; and that abstracts of them should
be published annually and distributed amongst
the ratepayers. This was done, but the ab-
stracts were not satisfactory; and formal ac-
counts were now directed by the Court of all
moneys received and expended by the council
from the first, having regard, however, to the
audited accounts. The same person was town-
clerk and solicitor to the Corporation. How
far these offices are incompatible.

Upwards of £32,000, within ten years, were
paid by the council for costs to the solicitor
of the Corporation, including the costs of
obtaining the two Local Acts (with others),
and carrying out the former. Some of the
bills of that solicitor were taxed by the
second Remembrancer, the remainder (com-
prising those for parliamentary business)
were taxed by or under the immediate di-
rection of another solicitor, appointed by the
council for the purpose. Convenience, and
the state of business in the public offices, were
the principal reasons assigned for this; and
the taxation of the referee and his assistants
was sworn to have been faithful and strict.
But it was stated, on the other hand, that
portions of these costs were incurred for busi-
ness that either ought not to have been trans-
acted, or was useless to the borough in its
results; and various items were specified as
excessive in amount, or improper in prin-
ciple. And in addition to the sums so paid
to the solicitor of the Corporation, nearly
£30,000 within the same period were also ex-
pended by the council on costs to other soli-
citors, and a parliamentary agent, &c. Por-
tions of these costs were taxed by the Master
of the Q. B., and portions by the solicitor of
the Corporation and his town agent. Almost
the entire amount was paid more than twelve
months before information filed, and the
greater part of the parliamentary business
was transacted prior, but the costs were taxed

[CORPORATIONS.]

 

Charter to, Sc. 145

subsequent to the 10 & 11 Vic., v. 69, and the
12 & 13 Vic. ¢. 78.

In taking the accounts in the cause, the
Master was directed to inquire what portions of
costs for which the Council might claim credit
were duly and properly incurred, and were pro-
perly chargeable against the borough funds.
And with respect to such costs so properly
chargeable, and not taxed by the Master of
the Q. B. or the second Remembrancer, the
Master (in Chancery) was to be at liberty,
if he should think fit, having regard to the
taxation thereof already had by any other
person, but notwithstanding such taxation, to
require the same to be taxed, or to tax or
moderate them himself.—Att.-Gen. v. Belfast
Corporation, 4 I. C. R. 119. (C.)

1. The Corporation of B., having a power
to borrow money to a limited amount, and to
purchase lands for the purpose of improving
their town, borrowed a sum exceeding the
amount justified by their Improvement Acts,
with which the Lands Clauses Consolidation
Acts were incorporated. K. being served by
the Corporation with notice to treat for the sale
of lands in the borough, agreed to sell to the
Corporation, and allowed the price to remain
unpaid. On an information filed against the
Corporation, to which K. was not a party,
they were restrained from applying the bo-
rough funds to the payment of certain speci-
fied debts, of which the petitioner’s claim
formed a part. The petitioner obtained
against the Corporation a decree for specific
performance, and for payment of the sum due
to him in respect of the lands sold by him.
Held, that he was not entitled to ,enforce
that decree against chattel property’ of the
Corporation purchased out of the borough
fund, and which, if sold, must, for the pur-
poses of the Corporation, have been replaced
thereout.

The creditor of a Municipal Corporation
has not a right to have execution against pro-
perty of the Corporation, subject to a specific
trust for municipal purposes—Keyland v. Cor-
poration of Belfast, 6 I. C. R. 161; 2 1. Jur.
N.S. 189. (C.)

 

I. 2. Of Municipal Corporations since the 5 & 4
Vic., c. 108.

2. A judgment obtained by confession, after
the 16th Feb. 1836, against the old Corpora-
tion, is not conclusive against the new Cor-
poration.

Upon an information filed by two burgesses
of the new Corporation, to stay the issuing
of execution against the corporate goods,
upon a judgment founded on a demand con-
cerning which the Court doubted whether it
came within the 6 & 7 W. 4, c. 100—Held,
that they were entitled to have an issue to try
whether or not the demand was such origi-
nally as came within that Act.—Ait.-(en. v.
Corpn. of Dublin, 1 Dr. & War. 545. (C.)

 

IL Cuarter, Licensn, &c., To CorPoRATIONS.

3. A license to a Corporation to hold lands
injmortmain, granted by the Crown before

19
146 Bye-laws.
the passing of 32 G. 3, e. 31—Held, sufficient.
—Incorporated Society v. Richards, 1 Dr.& War.
258; 1 Con. & L.58:41.E.R. 214. (C.)

 

Til. Corporate BYe-Laws.

1. A Society for the purpose of granting
annuities and other benefits to the widows of
members, enrolled rules in pursuance of the
Friendly Societies Acts. One of those rules
provided that all payments to be made to the
widow of a member should be paid to herself
only, or to her order, and to no other person.
Another rule provided that all matters in dis-
pute between the society and any individual
member, or any person claiming on account
of any annuitant, should be referred to arbi-
tration. The society was afterwards incor-
porated by a Private Act, which gave the
society power to make bye-laws so far as ap-
plicable. The society adopted the former
rules as bye-laws.

The widow of a member became entitled to
an annuity, and subsequently took the benefit
of the Insolvent Debtors Act. On cause peti-
tion by her assignee against the Society—Held,
that the restriction on alienation was inope-
rative. ‘

Held also; that the provisions of the Friendly
Societies Acts had ceased to apply to the so-
ciety, and that the jurisdiction of the Court
was not ousted by the arbitration clause.—
Irvin v. Presbyterian Widows’ Fund Association,
51.C.R.1: 11. Jur. N.8. 88. (C.)

TV. Leases, AGREEMENTS, AND OTHER DISPO-
@itioxs or Property By Corpora-
TIONS.

2, An archbishop of C. granted to the Cor-
poration of C.. for the use of the Corporation
and inhabitants of C., a right of pasture over
certain of his lands, of part of which the Cor-
poration afterwards became, by some unex-
plained means, absolutely seized. Held, that
they were so seized in trust for the town of C.

That therefore a lease for 99 years, made
by them at a gross undervalue, should be
set aside; and that the trusts would have
attached even though the absolute ownership
had been acquired by usurpation.

That the lessee was entitled to an issue
touching the identity of the lands in posses-
sion with those, or part of those, over which
the right of pasture had been granted.

After their acquisition of the absolute ow-
nership, Charles I. granted to the Corporation
a charter, conferring on them certain privi-
leges, directing the appointment of certain
officers, and specifying the oaths to be taken
on appointment. The Mayor was to be bound
by his oath not to allow any estate of inherit-
ance in the lands in question to be parted
with, or the rents to be assigned, for more
than one year.

Semble—That the Corporation, on adopting
the charter, was bound by this oath’s restric-
tions, although the lands were not derived
from the Crown.

That the lease in question was in violation

(CORPORATIONS. ]

 

Leases, &c.

of the oath.—Atz.- Gen. v. Corpn. of Cashel, 3 Dr.
& War. 294; 2 Con. & L.1. (C.)

8. The Limerick Regulation Act (Loc. and
Per.) enacted that the corporation property
should be disposed of only for the public uses
and charities of the city, and subject to cer-
tain control and formalities mentioned in the
Act, which should take effect from the Ist
Sept. 1823. It received the royal assent on
the 18th July 1823. At a corporate meeting
on the 30th August, property was leased to a
member of the body, not for public purposes,
and without the control or formalities required
by the Act. Held, that notwithstanding the
clause deferring its operation, the Act bound
the corporate property from the date of its
passing, and the lease was therefore void.

A lease, void under the Act, was attempted
to be supported by a prior contract, which
was not under the corporate seal, but was a
resolution of the common council, who were
in the habit of managing the corporate pro-
perty. The proof that the property had been
held for public trusts was defective; but the
profits had been applied to public purposes
for many years. The resolution was made in
favour of the chamberlain of the Corporation
by the common council, which consisted of
persons under his influence; and the rent,
though fixed by valuators appointed by the
common council, was under the value. eld,
that, although equity might enforce a contract
or resolution, not under seal, or binding at
law against a Corporation, yet this resolution
could not be enforced, and would not support
the lease.

An Act contained a clause declaring it a
public Act; it related merely to the affairs of
the Limerick Corporation. Held, that it was
a private Act as to the public at large, but
that the persons dealing in the transaction in
question being members of the Corporation,
had notice, and were bound by it.—Adt.-Gen.
y. Ball, 10 I. BE. R. 146. (C.)

4. A lease of corporate property, granted
under circumstances similar to those in the
Att.-Gen. v. Ball, supported in favour of a
purchaser for value. If a defendant in his
answer relies generally on his right as a pur-
chaser for value without notice, but does not
specifically deny notice of a particular matter,
ex.gr., a private Act, with which he is charged
in the bill, and which would invalidate his
title, the ptf. not excepting to the answer, is
bound to prove notice. A statute relating to
the corporate property of a city, with the usual
clause declaring that it shall be deemed a
public Act, does not bind strangers with notice.
The mere probability of a purchaser knowing
it, or precautions taken by him in purchasing
corporate property, will not fix him with con-
structive notice—Att.-Gen. v. Marrett, 10 I.
E.R. 167. (C.)

5. A Railway Co. served a notice to treat
for the purchase of land, and persons in their
employment, who were, or acted as if they were,
authorised to arrange on the price, obtained
the vendor’s signature to a printed form of
[CORPORATIONS.—COSTS.]

agreement fixing the sum. Held, that the Co.
were bound to specificially perform this agree-
ment, though not signed by them under their
corporate seal.

Semble—An award made after the date of
the agreement, and under the vendor’s pro-
test, by the arbitrator appointed pursuant to
14& 15 Vie., v. 70, was a nullity.

Semble—Had the price to be paid for the
land been ascertained by parol only, after
service of the notice to treat, the contract
would still have been binding.—Smith v. D.
and B. Ry. Co. 31.C. R. 225. (C.)

1. The entry in wu Corporation’s minute-
book of a resolution, accepting a proposal for
‘a lease of part of the corporate property, was
partly erased. Held, that in the absence of
evidence to the contrary, the erasure must be
presumed to have been made before the book
was signed by the chairman of the meeting at
which the resolution was passed.

If a Corporation has partly performed a con-
tract for a lease, the Court will decree its
specific performance, though the contract was
not under the Corporation’s seal.

A statute empowered a Corporation to
make leases of the corporate property, under
their common seal, for a certain term in pos-
session, and at the highest rent, and provided
that all leases made in any other manner
should be nulland void. Held, that the statute
did not preclude them from entering into an
agreement for a lease, provided it was without
delay carried into effect by the execution
of leases in compliance with the statute—
Steevens’s Hospital vy. Dyas, 15 I. C. R. 405;
8I.Jur.N. 8.411. (R.)

 

V. Actions AND SUITS BY AND AGAINST
CorPoRATIONS.

2, A judgment obtained by confession against
the old Corporation, after the 16th Feb. 1836,
is not conclusive against the new Corporation
in a case where it is doubtful whether the
demand on foot of which the judgment was
obtained was within the 6 & 7 W. 4, c. 100.
Upon information filed at suit of two bur-
gesses of the new Corporation to restrain the
issuing of execution upon that judgment—
Held, that they were entitled to an issue to
ascertain whether the demand fell within that
Act.—Att.- Gen v. Corporation of Dublin, 1 Dr.
& War. 545. (C.)

8. A Corporation aggregate may be a peti-
tioning creditor in bankruptcy.—ZJn re Beale,
2 Dr. & War. 375. (C.)

4, A Corporation aggregate held upon trust
lands whereof they granted a lease to one of
their own body at a gross undervalue, and in
derogation of their trust. Held, that the lease
should be set aside, and an account of the
mesne profits of the lands taken from the date
of granting the lease, the interval being less
than 20 years.—Att.- Gen. v. Corpn. of Cashel, 3
Dr. & War. 294; 2Con. G&L. 1. (C.)

 

147

5. The Corporation of D. were by several
statutes empowered to levy rates for the pur-
pose of supplying water to the city of D., and
also to raise a sum by mortgage or debentures
on the rates, and were directed to retain an
annual sum and the surplus of the rates, after
what should be duly expended for the purposes
of the Acts, to create a sinking fund to pay
off the sum borrowed. The money directed to
be reserved as a sinking fund was not retained,
and the Corporation were ordered by a decree
of this Court to pay off a sum which had been
borrowed, which they did, by issuing new de-
bentures on the surplus rates, the Master of
the Rolls having expressed an opinion, and it
having been declared in the decree, that they
were the property of the Corporation. They
also applied some of the rates in payment of
the salaries of retired officers, and of interest
on asum borrowed, by which the interest on
some of the debentures was decreased. Twelve
years after the decree an information was
filed to restrain the Corporation from applying
the rates in payment of the interest on the de-
bentures, or the salaries of retired officers, or
the further sum borrowed. The Court refused,
with costs, an injunction before answer, though
expressing a doubt whether there had not
been a misapplication of the rates, and though
the informaton charged that there would be
no surplus if the purposes of the Acts were
properly effected. A?t.- Gen. v. Corpn. of Dub-
lin, 12 I.E. R. 465. CR.)

6. The charter of the College of Physicians
empowered the President and Fellows to make
such statutes, decrees, and ordinances for the
regulation of the faculty of physic as to them
might seem necessary, and to grant testimonials
to all candidates presenting themselves for exa-
mination, as they might deem entitled to re-
ceive them. Held, that this did not imply the
power to grant degrees, and that between a
license and a degree there was a well recog-
nised distinction.

That if any corporate or other body usurps
the power of granting degrees without express
authority, proceedings are properly taken in
the name of the Att.-Gen.

Quere—Whether one body to whom the
privilege has been granted can file a bill
against another body which has usurped such
privilege without having first, established its
right at law?—The Ait.-Gen. v. The K. & Q.
College of Physicians in Ireland, 91. Jur. N. 8.
362.

 

COSTS.

See Practice, Costs, passim.

— Proof for in Bankruptcy. See BANKRUPTCY.
— Of Bankruptcy Petition. See Bankrurtcy,
XVII.

— Revivor for. See Practicr, ABATEMENT
AND ReEvivor.

— Attachment for. SeePRacticE, ATTACHMENT.

— Taxation of. See Practice Costs.

— Extra. See Practice, Costs.

— Between Party and Party, or Solicitor and
Client. See Practice, Costs.
148

— Of day. See Practice, Costs.

— Of Trustees. See Trustees, VI.

— Of Conveyance to Purchaser. See VENDOR
Anp Purcnaser, VIII.

— Taxation of in the House of Commons—10 &
11 Vie., c. 69.

— Taxation of in the House of Lords—12 & 18
Vic., ¢. 78.

 

CO-SURETY.

See PRINCIPAL AND SURETY.

 

COUNSEL.

See BARRISTER.

Signature of. See Practice, SIGNATURE OF
CounseEL.

 

COUNTRY COMMISSION OR FIAT.

See Bankruptcy, VI.

 

COUNTY COURTS.
See Counts, IV.

 

COUNTY TREASURER.

 

COURTS.

See Practicr, Prouieirion—Practice, Iy-
JUNCTION,
— Of Review. See Baxxurtcy, XIX.
— Of Sub-division and Commissioners.
Bayxkreptcy, XX.
— Copyhold and Manor.
— Inns of Court.
— Generally. See JuRisp1cTIoN.
— Practice in. See Bankrurrcy, XVIL—
PracticE—Covurt, Practice in.
— Foreign. Sce Foreign Laws.
J. Excueqter. See Practice passim, anp
PracticE 1n ExcHeqver.
Il. Ecciestasticar.
IJ. Order aND INFERIOR Courts.

See

See Copruotp, VI.
See Inns oF Court.

 

COUSINS.
See WILL.

 

COVENANT

— Of Ancestor. See Herr, I.

— Usual Covenants in Leases. See LEasy.

— Injunction against breach of. See Practice,
INJUNCTION.

— Of Purchaser, Sce Vexpor anp Purcua-
ser, IX.

I. VaLIpITY OF: WHAT AMOUNTS TO A
CovVENANT, WHEN IT WILL BE EN-
FORCED—WHEN VoIp, &c.

Il. Woo BouND BY GENERALLY—WHEN
BURDEN OF RUNS WITH THE Lanp.

 

 

[COSTS.—COVENANT.]

Ii.
IV.

Vv.
VI.
Vil.
VII.

IX.

PERFORMANCE OF.

SATISFACTION OF OTHERWISE THAN BY
EXACT PERFORMANCE: WAIVER.

Imeviep.

RELIEF FROM COVENANT BEFORE BREACH

Breach OF CovENANT—REMEDIES IN
EQUITY FOR BREACH.

RELIEF AGAINST CONSEQUENCES
BREACH.

CoNSTRUCTION AND EFFECT OF COvVE-

NANTS.

. Covenant to renew Lease—other Cove-
nants in Lease.

. Covenant to Indemnify.

. Covenants for Title, quiet Enjoyment,
JSurther Assurance, and to Pay.

. Covenants running with the Land. *

. Covenants to Settle, Charge, or Bar.

. Covenants against Assignment, and gene-
rally.

OF

_

aQore wb

I. VaLipiry OF, AND WHAT AMOUNTS TO A
CoVENANT: WHEN IT WILL BE ENFORCED ;
WHEN VOID, &c.

1. When the tenant for life under a mar-
riage settlement had confirmed a charge
created by the settlor, the personal represen-
tative of the father of the lady, and as such
entitled to sue for breaches© of , covenant
entered into with the father of the lady by the
settlor; Held, that he could not insist upon
his rights under those covenants, to the pre-
judice of the persons entitled to the charge
confirmed by him.

Quere—As to the validity (on the ground
of champerty) of a covenant in a marriage
settlement, for title to lands of which the
settlor was not in possession then, and to which
his right was then in litigation ?—Martyn v.
ALacnamara, 2 Con. & L. 551. (C.)

2. Semble—An habendum, “to hold for the
lives of A. and B., or the survivor of them, or
whatever life or lives shall for ever hereafter
be nominated or appointed, paying a pepper-
corn fine, if demanded,” amounts to a co-
venant for perpetual renewal.—Sheppard v.
Doolan, 5 I. E. R. 6; 3 Dr. & War. 1. (C.)—
(Fl. & K. 598; 41. E.R. 654. (R.)]

8. The Tenantry Act, and the local equity
of which it is declaratory, do not extend to
covenants by tenants to renew.

A lease for lives contained a covenant to
take renewals. The landlord did not enforce
it against the tenants who were in possession
when the c.g. vient died. Several years after-
wards, the premises, much deteriorated, were
assigned to the defendant. The landlord’s
agent took part in the assignment; had the
conveyance altered; and engaged in a treaty
to grant a new lease at a reduced rent to the
defendant, under circumstances which might
have led her to believe that a renewal would
not be enforced, and which the Court disap-
proved of, though nothing fraudulent was
intended. Held, that the circumstances de-
prived the landlord of his right to specific
performance of the covenant.—Alder v. Ward,
81. E.R. 350; 2 Jon. & L. 571. (C.)
Validity of.

1. In a lease for lives renewable for ever,
made in 1786, of lands, excepting mines, &c.,
it was agreed that the landlord might enter,
search for, and work mines; and that it
should be lawful for him, his heirs, &e., at his
election, to hold and enjoy, by separate and
distinct bounds, 200 or 3800 acres of the de-
mised lands (the mansion-house and orchards
excepted) most contiguous to the mines, if
any were found, making a proportional abate-
ment in the rent to the lessor, his heirs, &c.
A specific performance was decreed at the
suit of the landlord, a Court of Law having
decided [reported 6 I. L. R. 351] in an eject-
ment for the 300 acres, that this clause of
re-assumption was a covenant, and not a con-
dition.

Sed quere—If it is not a condition ?

Held also, that the landlord was entitled to
resume the entire 300 acres, and for the entire
of the lessor’s interest, whether the mines
could be profitably worked or not; and al-
though the real object might have been to get
the land itself, the discovery of the mine being
bona fide made, and the working not merely
colourable.

And Semble, he was bound to take the 300
contiguous acres at once, and could not resume
them in separate parcels.

And Semble, he was entitled to resume them
without making any compensation forimprove-
ments made by the tenant.— Croker v. Orpen,
91. E. BR. 563; 3Jon. & L. 589. (C.)

2. By deed of 1809 between A. and B., deputy
Barrack-master General, reciting that a cer-
tain part of A.’s estate had been fixed on for
the site of barracks, and that it was necessary
that a liberty or privilege for the troops for
exercising should be granted on another part,
A. conveyed nine acres for ever for the site
of the barrack; and granted, let, and demised
unto B. 100 acres, to hold to him and his suc-
cessors for ever, for the purpose only of exer-
cising thereon, in trust for his Majesty, his
heirs and successors, reserving a rent of £150.
There was a covenant to pay the rent, and a
power to the lessor to resume the 100 acres,
upon giving another piece of ground in lieu
of them. After the signatures, it was de-
clared in the attestation clause that nothing
in the deed should be construed to deprive A.
or his heirs of the fee and inheritance of the
full and free enjoyment and possession of the
100 acres, “the liberty of exercising thereon
being only intended to be granted.” A. in
1818 demised the 100 acres to C. for lives re-
newable for ever, subject to the perpetual
right of exercising thereon, &c. C.’s interest
in the lease was sold under the decree, and
the rental stated that the lands were “sub-
ject to a perpetual right to be used by the
military as an exercise ground.”—Held, that
the deed of 1809 was not a mere grant of an
easement in the 100 acres, but was an abso-
lute conveyance of the land, the fee of which
was, by the 7 G. 3, c. 6, vested in the Crown,
without livery of seizin.

Though a conveyance to one and his suc-
cessors gives but a life estate, and in convey-
ances operating under the Statute of Uses the

[COVENANT.]

 

What amounts to. 149

seizin must be commensurate with the use—
Semble, this does not apply to a case of trust.

In 1823, C., a trader, upon his marriage,
covenanted that whatever estate or property,
real or personal, he should die possessed of,
should be charged with an annuity for his
wife, if she survived. C. died in 1842, leaving
his widow still surviving. C.’s interest in the
lease for lives renewable for ever being sold
under a decree— Held, that it being doubtful
whether, upon the true construction of the
covenant the lands were bound thereby, the
Court would not compel the purchaser to take
a title subject to such a question.—White v.
Baylor, 10 I. EB. BR. 43. (R.)

3. By settlement, on the marriage of S. and
N., securities for money were assigned to B.
and F., on trust to invest the amount of the
said securities which they might thereafter
receive, with the consent of S. and N., on
trusts for the benefit of S. and N., and their
children. F. refused to execute or act under
the settlement. The securities were not called
in, and the sums due thereon were lost. B.,
who had executed this settlement, died in 1841.
Held, that there was not any specialty debt
created against B. or his assets by his omis-
sion to call in the amount due on the securi-
ties, there not being any express or implied
covenant in the deed that he would call them
in; and that, six years from B.’s death having
elapsed, the remedy against his assets was
barred by the Statute of Limitations. Mere
omission to perform a duty arising out of a
deed does not create a liability in the nature
of a specialty debt, unless there be in the
deed words from which a covenant to perform
that duty may be implied—Newport vy. Bryan,
51.C. R119. (C.)

4, A father, G., joined in a settlement, exe-
cuted on the marriage of his daughter, which
contained a recital that he was desirous to
give her, as a marriage portion, such sum or
child’s share as he might be entitled to dis-
pose of, which child’s share it was calculated
would be at the least £5000, but the same, or
the precise amount thereof, could not be ascer-
tained until his decease. The intended hus-
band, who had a power to jointure to the
amount of £10 per cent. on the fortune which
he should receive with his wife, appointed a
jointure of £500 a-year, which was also colla-
terally secured on other lands not the subject
of the power. The daughter died in G.’s life-
time.

Held, that the recital amounted to an abso-
lute covenant that his daughter should have,
on his death, an‘equal share of his personal
estate with his other children.

Semble—If it was not a covenant, it would
have amounted to a binding representation to
the same effect.

Held, that the obligation was not discharged
by the daughter’s death in his lifetime.

In calculating the amount payable under
the covenant, sums advanced to other chil-
dren by G. in his lifetime should be taken
into account, and be added to the assets.

That interest should not be calculated on
150 Validity of.
the sums so advanced.—Duckett v. Gordon, 11
I. C. R. 181. (R.)

1. A term of years was held upon trust for the
separate use of E., a married woman, for her
life; remainder upon trust for T., her husband,
for life; remainder upon trust for the children
of T.and E. There were several children. By
deed, reciting that E., in order to further the
prospects in life of the children, had consented
to assign her life estate for the benefit of the
children, and that T., for the same purpose,
agreed to assign his life interest if he should
survive his wife; E. assigned her life interest
to trustees for the benefit of the children;
and T. covenanted that, if he should survive
his wife, he would, if called on by the trustees,
assign: his estate and interest on the same
trusts. E. and T. subsequently, for value,
assigned to H. Held, that their children were
entitled to enforce against H. a specific per-
formance of T.’s covenant to assign his in-
terest. [Reversing the decision of the M. R.,
111. C. R. 123.J]—Joyce v. Hutton, 12 I. C. R.
71; 61. Jur. N. 8. 274. (C.A.)

2. By articles under seal, between X., father,
and Y., his eldest son, in consideration of Y.’s
intended marriage, X. granted an annuity
during his life to Y. It was agreed that after
the death of X., Y. should pay to B., a daughter
of X., an annuity of £15 a year; if she should
marry without assent, the annuity to return
to Y. Then, after limiting the lands, the
articles conclude—“ And it is further agreed
that the said X. is to give up to the said Y.,
after his death, all the said lands; he the said
Y. paying and fulfilling all and every the
covenants recited in said articles.” Held, that
these articles operated as a covenant to stand
seized, and that Y. took the estate subject to
B.’s annuity.— Maguire v. Scully, 12 I. C. R.
153. (C.)

8. A lease contained a covenant by the
lessee to plant with proper forest trees a
portion of the demised premises, and to replant
such portions thereof whereon trees then stood
or were planted, and which trees had been
injured or destroyed; and to repair, or keep
in repair, the fence or fences whereby the
planted portion of the lands were then or
might thereafter be inclosed, so as at all times
during the term to preserve and keep the
trees which then were, or should thereafter be,
growing or planted as aforesaid, from all waste,
spoil, damage, or destruction whatsoever.—
Held, that the covenant was too uncertain to
be carried into specific execution by the Court.
—Bernard v. Meara, 12 I. C. R. 389; 7 I. Jur.
N.S. 333. (R.)

 

Tl. Wao Bound BY, GENERALLY: WHEN
BurRDEN OF RUNS WITH THE LanD.

 

Ill. Perrormance or.
4, A. conveyed her life estate in lands to
her son, in consideration of his paying the rent
of a house for her, and supplying her with

[COVENANT.]

 

Who bound by.

sufficient hay and corn. He covenanted to
pay the rent and supply the hay and corn.
Held, that A. had on the lands a security, in
the nature of a vendor’s lien for the purchase
money, for her son’s performance of the con-
tract.—Richardson v. I*Causland, Beat. Rep.
457. (C.)

5. A husband, B., covenanted to insure his
life for £1200, and to assign the policy to
trustees ; and confessed a judgment to them
for that amount, to be called in if the policy
was not so assigned and kept up. Another
sum of £800, vested in them by the same
settlement on similar trusts, was lent by the
trustees to B. on the security of the assign-
ment of a policy of insurance for £800 on his
life. No other policy was assigned to them.
No steps were ever taken to enforce the judg-
ment or covenant. In a suit against the
trustees after B.’s death—Held, that the pro-
ceeds of the policy were not necessarily to be
considered as obtained in pursuance of B.’s
obligation, but that the trustees might apply
them for the purpose for which the policy was
really assigned; and that their liability for
default in not compelling B. to insure de-
pended on his ability.

B. having passed his bond and warrant to
confess judgment thereon to trustees, was dis-
charged as an insolvent under the 3 G. 4, c. 124,
returning them for the amount in his schedule.
Judgment was afterwards entered on the war-
rant by them, and assigned to new trustees on
the old trusts, by a deed to which B. was a
party. Held, that this was in the nature of a
new obligation, and that the judgment was an
available security—Ball v. B, 11 I. E. R.
870. (C.)

6. The lessee under a lease, containing a
covenant against assignment, agreed to assign
his interest under the lease. Ona petition by
the purchaser, for specific performance, the
respondent alleged that the assent of the
lessor to the assignment could not be obtained.
Held, that a Court of Equity could not relieve
the purchaser—Meara vy. M., 8 I. C. R. 87.
(C.)

7. The owner of the manor of B. devised
part of the manor for a long term, with a
covenant to build houses thereon, and to make
an area round such houses. The houses were
built, and an area made, according to the
terms of the lease. The lessee sub-demised
one of the houses by an instrument which did

| not recite nor refer to the original lease, nor

contain any covenant respecting the area;
but contained a covenant to do suit and service
at the courts of the manor of B. The sub-
lessee, more than twenty years before the
commencement of the suit, built over a portion
of the area, and subsequently assigned his
sub-lease to the respondent. Held, that the
covenant to make an area imposed a con-
tinuing obligation to keep the area open.

That the covenant to do service in the manor
courts was sufficient to put the sub-lessee
and his assignee on inquiry, and that the
assignee was bound to carry out the terms
of the original lease.
Who bound by.

That so far as the portion covered in before
his assignment, he was entitled upon that to
erect a porch.—Herbert v. Maclean, 12 I. C. R.
84. (C.)

1. A covenant in a marriage settlement that
the wife shall, out of the property of which
the husband shall die seized or possessed, re-
ceive an annuity, only binds the residue of
his property after payment of debts.—Rowan
v. Chute, 13 I. C. R. 169. (C.)

2. By marriage articles, A. covenanted that
if he should not before his death have settled
or devised hereditaments to the value of £180
a-year to the uses in those articles specified,
then a sum of £3000 should be raised out of
his assets, to be held upon trusts corresponding
with those several uses.

By deed subsequently executed he conveyed
hereditaments to be held, subject to prior
‘trusts, “upon the trusts in said articles of agree-
ment specified;’ and, subject thereto, upon
further trusts therein mentioned. After his
death his two sons executed joint mortgages
of those hereditaments. Those mortgages im-
plied that the entire interest in the heredita-
ments was bound by the trusts of the articles.

Held, that the deed of trust had not this
effect ; and that the mortgages did not pre-
clude the elder son (who was heir-at-law) from
giving to that deed its true construction.—/n
re Clancy’s Estate, 141. C. R. 361; 91. Jur. N.
8. 72. (L.E.C.) :

 

IV. Satisraction oF COVENANT OTHERWISE
THAN BY EXACT PERFORMANCE OF IT:
Waiver.

3. In a suit against trustees, by a husband,
who had covenanted to effect a policy of in-
surance, with a respectable insurance com-
pany, and to assign it to trustees, but who
had insured with a friendly society, the rules
of which subjected the insured to the danger
of expulsion, and did not allow an assignment,
but allowed a nomination nearly tantamount
to it, and the capital of which was not proved,
areference was granted to the Master to as-
certain whether the covenant had been ful-
filled; the ptf. to pay the costs.

Semble—That the covenant had not been ful-
filled.— Courtenay v. C., 9 I. E. R. 329; 3 Jon.
&L. 519. (C.) :

4, Lease, in 1819, with covenant against
assignment, and to pay an increased head-
rent in case of breach. In 1824, the lessee
assigned with consent. In 1845, there was an
assignment without consent. Held, that the
assignment in 1824 was not a general waiver
of the covenant; and that the lessor was en-
titled to the penal rent.—Stewart v. Hassard,
11. Jur. 291. (R.)

5. I, in 1810, by marriage settlement, cove-
nanted with the trustees that all the property
of which he should die seized or possessed
should be charged with £1300 for the issue of
the marriage.

There was but one child, E., issue of that

[COVENANT]

 

Satisfaction. 151

marriage. On the marriage of E. in 1847, I.
conveyed freehold property to trustees for the
benefit of E. and the children of her marriage ;
and covenanted to make up the amount of
the produce of that property to £300 per
annum. I., by will, dated 1852, devised real
estate to the separate use of EK. for life, re-
mainder for her children; and declared that
devise to be in satisfaction of the covenant in
the deed of 1847. In 1852, I. by deed assigned
railway shares upon trust for E., for life, for
her separate use in case she should survive
him, remainder for her children. By codicil
made in January 1853, I. bequeated chattels
personal to E, for her separate use, and to
trustees £1850 bank stock upon trust for G.,
the husband of E., for life, remainder to E.
for life, remainder for her children, as therein
mentioned. The will and codicil disposed of
the entire of the testator’s estate. eld, that
the £1300 secured by the covenant in the deed
of 1810 was not satistied by the subsequent
benefits conferred by I. —Garner v. Holmes, 7
IC. R. 412. (C.)—[Revd. 8 I. C. R. 469; 3
I. Jur. 421. (C.A.) ]

6. A lease for 500 years, dated 14th Dec.
1669, contained a covenant by the lessee, his
executors, &c., with the landlord, his execu-
tors, &c., not to sell before the first proffer be
made to the landlord, his executors, &., to
the end that they might have the first refusal
thereof, and pay as much as any other person
should bona fide offer,—Held, a covenant that
runs with the land, but not a perpetual one.
Therefore, an assignment of the tenant’s in-
terest having been made 140 years ago, it
must be presumed that the landlord declined
the offer or waived his right; and the tenant
must now hold discharged from that cove-
nant.—In re Houghton, 11 I. C. R. 186; 6 I.
Jur. N.8. 113. (L.E.C.)

7, T., having obtained a bond and warrant
from J., entered judgment, and registered it
as a mortgage against T.’s lands. At the date
of the bond, T. undertook not to call in the
principal so long as each gale of interest was
paid in three months after it fell due. A
gale fell due. A few days after, T. consented
to take a bill at three months, accepted by J.,
in payment. This bill having become due,
been renewed on the same understanding as
that on which the first was given, and even-
tually dishonoured, the amount was sent by J.
to T. in a cheque, and received by T. Held,
that T. did not, on non-payment of the re-
newed bill, become free to demand his princi-
pal. That acceptance of payment, as payment
of the gale in question, stopped T. from sug-
gesting unpunctuality.—In re Jackson's Estate,
121.C. R512. (.E.C.)

8. Proviso in a mortgage, that if the inter-
est should be punctually paid, the principal
should not be called in before a certain date
but that, on default, the mortgagee might en-
ter, notwithstanding any subsequent accept-
ance of interest. The first half year’s interest
was not paid within the time limited. During
that time the mortgagee was out of the coun-
152 Implied.
try. The interest was forwarded upon the
mortgagee’s sending instructions as to the
mode of remittance. The next half year’s
interest was liquidated in advance, by a bill
accepted by the mortgagor for the mortga-
gee’s convenience; and the mutual relations
of the parties were treated as subsisting un-
changed.— Held, that there had not been any
default in payment of the interest, and that if
any default had been made, the subsequent
conduct of the mortgagee would have amount-
ed to a waiver of it—Jn re Taaffe’s Estate, 14
LC. R. 347; 91. Jur. N. 8.18. (L.E.C.)

 

V. Impyiep Covenants.

1. A covenant for renewal in a lease for
lives is a covenant to grant an estate, and
implies the insertion of such covenants as are
incidental to the legal estate, having regard to
the tenure. A covenant for a lease contains a
contract that it shall be accompanied by the
ordinary covenants. The party renewing is
bound to give that which those from whom he
derives were bound to, and did give by the
original contract.— Vance v. Ranfurly, 1 I. C.
R. 321. (C.)

2. A father, G., joined in a settlement, exe-
cuted on the marriage of his daughter, which
contained a recital that he was desirous to
give her, as a marriage portion, such sum or
child’s share as he might be entitled to dis-
pose of, which child’s share it was calculated
would be at the least £5000; but the precise
amount thereof could not be ascertained until
after his decease. The intended husband, who
had a power to jointure to the amount of £10
per cent. on the fortune which he should re-
ceive with his wife, appointed a jointure of
£500 a-year, which was also collaterally se-
cured on other lands not the subject of the
power. The daughter died in G.’s lifetime.
Held, that the recital amounted to an absolute
covenant that his daughter should have on
his death an equal share of his personal estate
with his other children. ,

Semble—If it was not a covenant, it would
have amounted to a binding representation to
the same effect.

Held, that the obligation was not discharged
by the daughter’s death in his lifetime.

That, in calculating the amount payable
under the covenant, sums advanced to other
children by G. in his lifetime should be taken
into account, and be added to the assets.

That interest should not be calculated on
the sums so advanced.—Duckett v. Gordon, 11
I. C. R.181. (R.)

 

VI. RevierF rrom COVENANT BEFORE
Breacu.

3. By marriage settlement a husband cove-
nanted with the trustees that he would forth-
with effect a policy of insurance upon his life
with some respectable insurance co. for the
sum of £1000, and assign it to trustees.

Semble—That a policy effected with a
friendly society, if not assignable, or if less

[COVENANT.]

 

Breach of.

beneficial than a policy effected with an ordi-
nary assurance co., is not within the covenant.
A reference to ascertain whether it was, di-
rected; the ptf. (the husband) to pay the
costs.

Semble—That the covenantor, if he relies
upon an assurance with a recently-established
friendly society (supposing such a society to
be within the covenant), as a fulfilment of the
covenant, ought to show that the society pos-
sesses capital, and is solvent.— Courtenay v. C.,
91. E. R. 329; 3 Jon.& L. 519. (C.)

 

VII. Breacu or CovENANT: EQUITABLE
REMEDIES FOR IT.

4, An indenture of demise contained a cove-
nant by the lessee not to do a certain act,
“under the penalty of double the yearly rent
thereinbefore reserved, to be recovered by
distress or otherwise, in the same manner as.
the said yearly rent.” Held, that although the
word “penalty” was made use of, the case
was not one of a penalty which would be re-
lieved against in equity, but of liquidated
damages inthe shape of a double rent.— Gerard
v. O'Reilly, 3 Dr. & War. 414; 1 Con. & L.
174. (C.)

5. This Court will not, at the instance of the
covenantee, impound real assets to meet a con-
tingent breach of a covenant (to pay rent)
entered into by the deceased in his lifetime.—
Wyse v. Snow, 2 1. C. R. 254; 51. Jur. 57. (C.)

6. A lessee, Z., for lives renewable for ever,
demised the premises in 1803, for 900 years,
to B., who covenanted for himself, his heirs,
executors, &c., to pay rent; keep the premises
in good repair; and deliver them up in like
repair and condition. In 1880, the last life in
Z.’s lease died. A trustee, to whom renewals
had been made for claimants under Z.’s will,
died in 1840, in which year another renewal
was granted to another trustee for them. B.’s
executrix, in 1838, assigned his interest in the
premises to C., whose administrator, in 1846,
assigned them to D., a pauper. After B.’s
death the rent payable to the claimants under ,
Z. fell into arrear. The premises became out
of repair. The claimants instituted a suit.
Held, that B.’s real estate in his devisee’s
hands was not liable to the rent.

That B.’s personal estate in the hands of
his executrix continued liable for breaches of
the covenants to pay and repair.

That the personal estate of C. was, in his
administrator’s hands, liable for breaches of
the covenants to pay and repair which oc-
curred between the assignment to C. and that
to D.

That D. would be liable for such breaches
of both covenants as might occur during his
occupation.

Semble—That the petitioners were entitled
to substantial damages for breaches of the
covenant to repair, and not merely to such a
sum as would, if kept at interest until the end
of the 900 years, then suffice to put the pre-
mises in repair—Macnamara v. Vincent, 2 I.
C. R. 481; 41. Jur. 197. (C.)
Relief against breach of.

1. A feme coverte having a jointure well
charged on her husband’s estates, joined with
him in a mortgage of those estates, covenant-
ing thereby that the mortgage should have
priority of her jointure. A suit to foreclose
was instituted in the Court of Ch. by the mort-
gagee, pending which the owner of the mort-
gaged estate presented a petition to the
Commissioners for the sale of I. Estates, who
ordered that a portion of the estates should
be sold, subject to the jointure. This order
was made with the assent of the mortgagee,
he being under the impression that the pro-
duce of the sale would discharge his demand.
Claims—deemed by the mortgagee to be puisne
to his demand—being allowed by the Commis-
sioners in priority to the mortgage, the fund
realised by the sale became insufficient to dis-
charge the entire mortgage debt. The mort-
gagee presented a cause petition to this Court,
praying a receiver over the jointure, until by
perception thereof, the residue of the mort-
gage debt should be discharged. Held, he
was entitled to the relief sought.—Hutchinson
vy. Bond, 51. Jur. 161. (C.)

 

VIII. RELIEF AGAINST CONSEQUENCES OF
BREACH OF COVENANT.

2. The Court never interposes on light
grounds against the legal effects of a covenant,
on the ground of acquiescence. There must
be fraud, such as acquiescing for a benefit to
arise from taking advantage of the breach, or
giving reason to suppose that there would not
be any interference.— Gerard v. O’ Reilly, 8 Dr.
& War. 414; 2 Con. & L. 165. (C.

8. When a very voluminous suit against se-
veral defendants failed on the three main
branches of the relief sought, but the plain-
tiff succeeded in establishing a right to a
limited account against one defendant, which,
though comparatively unimportant, was mixed
up with the other matters of the suit and was
bona fide sought by the bill—Held, that the
bill could not be dismissed generally.

Relief lies 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 that the forfeiture would not be in-
sisted on; but where a subsequent forfeiture
was incurred after such dealings had ceased.
Held, that the prior transactions raised no
equity.—flattery v. Anderdon, 12 I. E. R. 218.

(C.)

4. A. made a lease of lands, conditioned
not to sub-let or assign without his consent
under hand and seal; the lease to be void
on breach. The lessee, with A.’s consent by
letter, though not under seal, agreed to sub-let
part of the lands. B. afterwards purchased
in the I. E. Court A.’s reversion, subject to
the agreement. The lessee’s administratrix
(C.) applied to B. for permission to make a
lease, in pursuance of the agreement, to E.,
to whom the interest under it had been as-
signed. B. advised and encouraged C. to
make the lease, stood by while a large sum

[COVENANTS.]

 

Construction of. 153

was expended by E. on the lands, and wit-
nessed the execution of the sub-lease, know-
ing it to be a sub-lease of the lands from C. to
E., and knowing also of the clause against
sub-letting, but ignorant that A.’s consent
was not valid in law; and swore that he had
no intention at the time to take advantage of
a forfeiture. He afterwards brought an eject-
ment for the forfeiture. Held, that the Court
had power to relieve the tenant notwithstand-
ing the condition against assigning or sub-
letting, and the Sub-letting Act (2 W. 4, c.
17).— Burke v. Prior, 15 1. C. R. 106. (R.)

 

IX. Construction anp Errect or CoveE-
NANTS.

Covenant to renew lease: other covenants
in lease.

. Covenant to indemnify.

. Covenants for title, quiet enjoyment, fur-

ther assurance, and to pay.

. Covenants running with the lands.

. Covenants to settle, charge, or bar.

. Covenants against assignment generally.

Dom cbs a

 

IX. 1. Covenant to renew lease: other covenants

in lease.

5. A., seized in fee, demised to B. the lands
of K., with liberty to raise and sell limestone,
reserving to A., and his heirs, and to his ten-
ants on the adjoining lands, the right to raise
limestone. Habendum for one life or 31 years.
A. covenanted for himself and his heirs that
he would, during the lessee’s life, execute to
him a renewal, subject to the like rents and
covenants. Held, that A.’s devisee for life
was bound to execute one renewal only; and
that a second renewal executed by him did
not bind the remainderman, or operate as a
surrender of the first, though expressly stated
to be so.

That B. had not any right to delegate to
more persons than one his right of raising
and selling limestone.—Swan v. Colclough, H.
& J. 807. (E.E.)

6. B.,.entitled to a bishop’s lease, granted a
sub-lease, to C., and covenanted “that in case
he, &c., should at any time thereafter renew
or take a longer term in the premises demised
than he had therein, then, that he would
within twelve months after the renewal, and
in like manner upon every renewal or fur-
ther term of years, &c.,: renew to C.,” &c.
B.’s representative, having renewed with the
bishop, at a heavy fine, refused to renew to
C.’s representative unless he contributed to-
wards payment of the fine. On a bill filed
to compel a renewal—Held, that B.’s repre-
sentative was not entitled to contribution ;
but was bound by the covenant to renew,
whenever he obtained a renewal from the
bishop, with C.’s representative-— Thomas v.
Burne, 1 Dr. & Wal. 657. (C.)

7. An habendum “to hold for the lives of A.
and B., or the survivor of them, or whatever
life or lives shall for ever hereafter be nomi-
nated or appointed, paying a pepper-corn fine,

20
154 Construction and

if demanded,” amounts to a covenant for per-
petual renewal.—Sheppard v. Doolan, 5 I. E.
R.6; 3 Dr. & War. 1. (C.)

1. A lease, habendum for three lives named,
and for and during the life and lives of such
other person and persons as should be nomina-
ted by the lessee, his heirs and assigns, upon
the death of any of the persons for whose lives
the premises were thereby granted; and upon
the death of such person or persons as should
be at any time thereafter nominated and ap-
pointed for ever, according to the covenant
and agreement thereinafter expressed; con-
taining no covenant to renew by the lessor,
but containing a covenant by the lessce, his
heirs and assigns, to pay a pepper-corn fine
on the decease of each of the persons whose
lives were therein mentioned, and of each

erson who should thercafter be nominated—

eld, a lease renewable for ever.—Chambers v.
Gaussen, 71. E.R. 575; 2 Jon. & L. 99. (C.)

2. The Tenantry Act, and the local equity
of which it is declaratory, do not extend to
covenants by tenants to renew.

A lease for lives contained a covenant to
take renewals. The landlord did not cnforce
it against the tenants in possession when the
c. q. vient died. Several years after, the pre-
mises, much deteriorated, were assigned to the
defendant. The landlord’s agent took part in
the assignment, had the conveyance altered,
and engaged in a treaty to grant a new lease
at a reduced rent to the defendant, under cir-
cumstances which micht have led her to be-
lieve « renewal would not be enforced, and
which the Court disapproved of, though no-
thing fraudulent was intended. Held, that
the circumstances deprived the landlord of
his right to a specific performance of the co-
venant.—Alder v. Ward, 81. E. R. 350; 2 Jon.
&L, 571. (C.)

8. Ona bill filed for a renewal, sctting forth
lost articles of demise of 1746 by V., then scized
in fee, and alleged to contain a covenant for
perpetual renewal; also, in alleged conformity
thereto, a lease’cxecuted in 1750 by V., who in
the interim had become tenant for life, con-
taining such a covenant, and reciting articles;
also showing subsequent renewals successively
by tenants for life :—J7eld, that the memo-
rial of the articles from the Registry-office,
though not executed by V., was admissible in
evidence against those claiming under him as
purchasers, of the execution of such lost
articles, and of their contents.

That the successive renewals hy subsequent
tenants for life were evidence in support of
the memorial, against the remainderinan, of
the execution of the articles.

That an agreement contained in a memorial
to demise lands for three lives, “with a clause
of renewal, provided the lessee, within six
calendar months from'the death of the last of
the said three lives, should nominate such life
or lives as he would have inserted in any lease
to be made thereof, and paying, as well all
rent due for the half year after the fall of such
life, as the sum of £11. 7s. 6d. for renewing or

[COVENANTS.]

 

Effect of.

adding such life or lives for ever,” is a cove-
nant for perpetual renewal.— Biggs v. Sadlier,
101. E. R. 522. (E.E.)—[See s. c. 4 H. Lds.
Cas. 435. See Scully v. S., 10 I. E. R. 557.
(H.L.)]

4, Lease for the natural life and lives of A.,
B., and C., and the survivor and survivors of
them, “and for and during the natural life
and lives of such other person or persons as
by virtue of the covenants for renewal” there-
inafter contained should “from time to time
successively and for ever be added during the
demise.” Covenant by the lessor that, “upon
the death or failure of any of the aforesaid
lives, and the nomination of the life of any
other person to be,” within six months after
the death of such life, put in the stead thereof,
and upon payment of a fine, he would add to
the term of the lease the life of the person so
nominated as aforesaid in the stead of the
person so happening to die as aforesaid.”
Covenant by the lessee to nominate within
the six months some other person in the stead
of the one so happening todie. Covenant for
quiet enjoyment ‘at all times during the con-
tinuance of this demise.” Petition to have the
lease converted into a fee-farm grant. The
respondent declining to take a case to law
upon the question, or to file a cause petition
to try it—Held, that the petitioner was entitled
to have the lease converted into a fee-farm
grant; but the question, whether the lease
contained a covenant for perpetual renewal,
being doubt/ul—Held, that each party should
bear their own costs up to and including the
hearing. —Maginnis v. Gore. 11. Jur. N.S. 422.

5. A lease for lives renewable for ever con-
taincd a covenant on part of the lessee, his
heirs, and assigns, that he and they should
not alien the lands (which consisted of two
denominations A. and B.), without the consent
of the landlord. Subscquently the rcversioner
took a conveyance of A. The tenant of B.
applied for a fee-farm grant of it under the
Renewable Leasehold Conversion Act. Held,
that as the covenant against alienation ex-
pressly applied to the whole of the land, it
could not be considered as “subsisting” in re-
ference to B. within the meaning of the 10th
sec. of the Act.

Per the Lord Ch.—A covenant against
alienation without license from the landlord
is repugnant to the estate intended to be
created by the Act, and therefore should not
in any case be inserted in a grant under it.—
dInre Quin, 8I. C. R.578. (C.A.); Dr. Rep.
temp. Napier, 446.

6. In 1695, leases were granted for 99 years,
by a person seized for lives renewable for
ever, with covenants that as often as the lessor
should, after the death of the lives then in
being, obtain a renewal, the lessee, his execu-
tors, &c., should pay one whole year’s rent;
in consideration whereof the lessor, his heirs,
&c., should, from time to time renew to the
lessee, his executors, &c., a new lease for 99
years, determinable on the lives to be inserted
Construction and

in the lessor’s renewal, and under the rents
covenants, articles, and agreements in said
lease expressed ; the true intent and meaning
of the parties being that the lessee, his execu-
tors, &c., on payment of one whole year’s rent
as: above stated, should and might have the
term of 99 years of the premises, under the
covenants, conditions, and agreements in said
lease expressed, for ever in being and undeter-
mined. In 1721 the lessor obtained a f. f. grant
of the premises. Renewals were from time to
time granted until the year 1811, when the
last renewals were made. Those renewals re-
cited the obtaining the original leases, the
f. f. grant to the lessor; and that his grand-
son, in 1789, had executed renewals in pur-
suance of said covenant, for renewal for 99
years, if A. should so long live. They also re-
cited a further renewal in 1740, after the death
of A., for 99 years, if B. and C.should so long
live; the death of B. and C.; and that, the
renewal fines which thereupon accrued due
having been paid, a further renewal was after-
wards obtained, one of the lives in which died ;
and that the person entitled to the lessee’s
interest had paid the renewal fines which there-
upon accrued, and the lands were thereby de-
mised for 99 years, determinable on three lives.
And it was covenanted that the lessor, in the
renewal, his heirs, &c., should from time to
time renew to the lessee, his executors, &c.,
for 99 years, determinable on the lives so to
be inserted, at and under the rents, covenants,
articles, and agreements “in the present cle-
mise” expressed ; the true meaning being that
the lessee, &c., on payment of the sum of ls.
should have the term of 99 years of the pre-
mises, under the rents, covenants, conditions,
and agreements “in these presents expressed,”
for ever in being and undetermined ; and that
the lessor, his heirs, &c., should give the lessce,
his executors, &c., on payment or due tender
of the aforesaid sum of 1s., a lease of the pre-
mises, with such clauses of renewal as were
therein expressed, at and under the aforesaid
rents and reservations. Held, that notwith-
standing the fee-farm grant of 1721, the lessor’s
representatives were bound to renew the leases,
and to give a fee-farm grant under the Renew-
able Leasehold Conversion Act.

That, on the true construction of the cove-
nants in the renewal of 1811, a fine was pay-
able on the fall of each life.

Although covenants for renewal cannot be
construed by the acts of the parties, the Court
would be unwilling to act against the con-
struction acted on by them for a long period,
unless that construction be clearly erroneous.
Pilkington v. Gore, 81. C. R. 589. (R.)

1. A. seized of land for three lives renew-
able for ever, leased it to B. for 99 years, pro-
vided the lives (for which the lessor held)
therein named should so long live. The
lease contained this covenant for renewal :—
“That as often as the said A., his executors,
&c., shall, after the death of the lives then in
being, renew the lease of said premises, the
said B., his heirs, &c., shall well and truly pay
unto the said A., his heirs and assigns, one
whole year’s rent, in consideration whereof, the

[COVENANTS.]

 

Effect of. 155

said A., his heirs, &c,, shall from time to time
renew unto the said B., his executors, &c., the
lease of the premises demised, for 99 years, de-
terminable on the lives so to be inserted, at and
under the rents and covenants in said deed of
demise expressed; the true intent and mean-
ing of said parties to said deed being, that the
said L., his executors, &c., on payment of one
whole year’s rent as above said, shall and may
have the term of 99 years of the premises,
under the rents, covenants, and agreements
expressed,for ever in being and undetermined.”
Held, that the representatives of B. were bound
to pay a renewal fine on the fall of each life.

Although covenants are not to be construed
by the acts of parties, yet their conduct in re-
lation to them may evidence the existence of a
new agreement.—Lx parte Pilkington, 41. Jur.
N.8. 102. R.

2. When the immediate lessee of see lands is
bound by covenant to renew the sub-lease of
a portion, ¢.q., the sub-lessee may by delay
lose the right of compelling specific perform-
ance of the ¢. g. covenant, although he has by
the sub-lease covenanted to pay his proportion
of the fine within one month after notice of
the amount, even though no notice of the
amount of the fine, such as would found an
action of covenant, had been given, if it
appeared that he might reasonably have
known the amount which he ought to pay.—
Bleakely v. Collum, 14 I. C. R. 875, (C.)

8. A plot of ground, particularly described
in a map drawn in the margin of the lease, was
demiscd, with a covenant by the lessee to build
and keep in repair, &c., and a covenant by the
lessor that the lessee should enjoy vistas
through the adjoining trees, as on the map,
on which two points were marked A and B,
with a note that between these points a vista
was to be maintained, the trees in it not
to excecd the height of fourteen feet. A
hedge, and a space on other lands of the
lessor, adjacent to the boundary of the de-
mised lands, were marked on the map with a
note :—‘ This hedge to be maintained by the
grantor.” This note was not signed, nor was
it incorporated in the lease by a reference.
The lessor subsequently demiscd the adjacent
land to C., who cut down the hedge and
erected a wall between it and the bound-
ary. The lessee filed a petition for an injunc-
tion to restrain C. from destroying the hedge
and from erecting the wall or any building
inconsistent with the hedge being maintained
for the benefit and advantage of the lands
demised.

Semble—There was no covenant by the
lessor to maintain the hedge. Held, that the
Court would not decree the specific perform-
ance of such a covenant, as being too vague,
and inthe nature of a covenant to repair.—
Armstrong v. Courtenay, 151. C. R. 138. (R.)

4, If a lease for lives, with a covenant for
perpetual renewal, imposes a penalty on the
tenant for not renewing, the landlord is not
entitled to septennial fines in addition to the
penalty; nor is he entitled to elect between
156 Construction of.

the septennial fines and the penalty.— Ware
v. French, 14 1. C. BR. 534. (R.)

 

IX. 2. Covenant to Indemnify.

1. A., seized in fee of premises subject to
one entire quit-rent, sold a portion to B., his
heirs and assigns. B. was then A.’s tenant in
possession, and also his attorney. The con-
veyance recited that A. was seized of other
premises, which, with those conveyed, were sub-
ject to the quit-rent; and that B. had agreed
to indemnify A., his heirs and assigns, and the
other premises, A.’s estate, from payment
thereof. B., for himself, his heirs, executors,
&c., covenanted with A., his heirs and assigns,
that B., his heirs and assigns, would pay the
quit-rent of all the premises, as well of those
sold to him as of the others, the estate of A.;
and would save harmless and indemnify A.,
his heirs and assigns, from payment thereof.
In a suit by an assignee of the unsold lands
against a volunteer under B—Held, that the
sold lands were specifically bound to indem-
nify those unsold against payment of the quit-
rent.

The proper mode of indemnifying against
the payment of quit-rent is by granting a
rent-charge in fee equal in amount to the
quit-rent, and issuing out of fee-simple lands.
—Hatton v. Waddy, 2 Jones, 541; H. & Jon.
601. (E.E.)

2. On his marriage in 1775, A., seized of an
undivided moiety of W., conveyed it to the
use of his first and other sons, but reserved to
himself power to lease for three lives. Having
afterwards bought the other undivided moiety
of W., A., in 1785, leased the whole of W. to
B. for lives renewable for ever. In 1797, A.,
on the marriage of G., his eldest son, conveyed
W. to his own use for life; remainder to G.’s
use for life; remainder to the use of such of
G.’s sons as G. should appoint to. In the
covenant against incumbrances, A. excepted
leases bona fide made by him. G. appointed
W. to his eldest son, V., and died in A.’s life-
time, leaving V. surviving. On <A.’s death,
V. filed a bill to set aside, as contrary to A.’s
leasing power, the lease of that moiety of W.
comprised in the settlement of 1775. Held,
that V., claiming under the settlement of
1797, was bound by and could not set aside
the lease of 1785.—Steele v. Mitchell, 3 1. E.R.
11; 2 Dr. & Wal. 568. (C.)

3. When a father, being seized of the abso-
ute interest in the lands of K. and M., and of
an estate for life, with remainder to his first
and other sons in tail, in the lands of F., and,
being indebted by judgments which were charges
upon all these lands, by settlement executed on
the marriage of his second son B., settles K.
on B. and the issue of the marriage; and, by
a contemporaneous deed conveys his life estate
in F., and the reversion subject to his life
estate in M. to his eldest son C.; and C.
thereby covenants generally to indemnify the
lands settled on B. against all the father’s
incumbrances—Held, that a subsequent mort-

[COVENANTS.]

 

To indemnify.

gagee of F. and M., with notice of this cove-
nant and of the incumbrances, was bound by
them, and was not entitled to contribution as
against the lands of K.—Powey v. Standish, 8
I.E. R. 526. (E.E.) :

4. A., assignee of thé interest in a lease,
expressly covenanted with his assignors, the
Commissioners of Public Works, to pay to
them the rent reserved by the lease; and
further to indemnify them from the payment
thereof. Held, that A.’s executor was entitled
to an indemnity from the parties entitled to
the assets in respect of his liability to the rent,
although the Commissioners might possibly be
entitled to insist that they were not person-
ally liable, having contracted to pay it as
“Commissioners and Overseers of Public
Works in Ireland.”

That the Commissioners had, under the
covenant, aright to require A.’s executor to
pay the rent, although they might never be
sued ; and that they, if sued, were not bound
to set up technical objections, which might or
might not be sustainable, to defeat a fair
claim, in order to exonerate A.’s executor
from the covenant.—Trevor v. Thomas, 13 I.
E. R. 222. (R.)

5. A. became surety for B. to secure his
due performance of his duty as a county cess
collector. B. and C., by deed, covenanted to
indemnify A. against any loss he might sustain
as such surety. B. was suspended by the
grand jury for a deficiency in his account. A.
handed him the sum required to make up his
deficiency, and so prevented him from being
declared a public defaulter. Held, that this
was not a payment constructively equivalent
to a payment in the character of a surety, so
as to affect C., who got no notice of the trans-
action, there being an arrangement between
A. and B. that the money so paid was to bear
interest at £6 per cent.—Carolin v. Stewart, 4
I. Jur. N. §. 165. (C.)

6. The lands of A. were conveyed to a pur-
chaser, with a covenant for quiet enjoyment,
free from “ quit-rents and crown-rents.” By
deed of even date, reciting (inter alia) an
agreement that the purchaser of A. should
be indemnified from specified charges, and all
other debts, charges, and incumbrances that
might at any time thereafter affect (inter alia)
A., the lands of B, were conveyed, in trust to
pay the rents to the vendor of A. or his heirs,
until the purchaser of A. or any person claim-
ing under him should be damnified by reason
of the incumbrances or any of them; and
then, in trust, out of the rents, or by sale, or
demise, to raise such sum as should be suffi-
cient to repay the purchaser all sums paid by
him on account of such charge or incumbrance.
Held, that quit-rents and crown-rents are
charges and incumbrances; and that the pre-
sent possessor of A. was entitled to be in-
demnified out of the proceeds of the sale of B.,
the amount paid by him and his predecessor,
as quit-rents in respect of A——Massy v. O'Dell,
51. Jur. N. §. 293. (C.A.)
For title and

IX. 3. Covenants for Title; quiet Enjoyment ;
and further Assurance.

1. Q., on the marriage of his son, M., in
1804, in a letter addressed to the mother of the
intended wife, stated his intention to leave
certain property to M. at his death, and pro-
mised to pay him in the meantime an annuity.

Q., on the marriage of his son E., in 1805,
signed a memorandum of agreement to settle
the lands of S. to the uses of the marriage,
and to secure to E. £400 a-year, if the lands
should not produce so much. A _post-nuptial
settlement, reciting the memorandum, declared
that Q. should make up the deficiency out of
his other real and freehold property. Q.
covenanted to make it good out of his free-
hold and other property, and died. Without
any default of E., a deficiency arose in the
valueofS. Held, that the statement contained
in the letter written in 1804 was merely an
expression of intention ; not an agreement.

‘That E. was entitled to have the deficiency
made good out of Q.’s other freehold property.

That the property devised to M. by Q.,
though received, not as a devise, but as a per-
formance of the alleged obligation contained
in the letter, was not upon that ground exempt
from liability to contribute— Quinlan v. Q.,
H.& J. 785. (E.E.)

2. Where a settlor, in the settlement exe-
cuted on the marriage of his son, enters into
absolute covenants for title with the father of
the lady; and in the same deed enters into quali-
fied covenants for title to the same lands with
the trustees of the settlement ; Semble—That
the latter covenants restrain the generality of
the former, although entered into with ditfer-
ent persons.—Martyn v. Macnamara, 2 Con. &
L. 541. (C.)

3. A settlement made by H., on the marriage
of his son T., provided £500 per annum for 'T.
for the life of H.; the rest of the property to
belong to H. for life, and after his death to T.;
£200 for T.’s wife, if she should survive T.;
and £500 among the issue of the marriage
after T.’sdeath. Thesettlor covenanted “that
the yearly profits of the premises, and other
the property to which the said T. will be
entitled after the death of H., exceed £1000
per annum, and shall continue to be of that
value during the life of the survivor of T. and
wife.” Held, that this was a continuing
covenant only during the life of T. and wife,
if they survived H.; and that H. having sur-
vived them, no right of suit accrued to T.’s
representative to have satisfaction out of H.’s
personal estate, although the properties did
not amount to the £1000.— Wood v. Jamieson,
61 E. R.420;1Jon.& L. 3. (C.)

4, A mortgage deed provided that the period
for redemption should not expire for seven
years from the date of the deed; and contained
a covenant that no proceeding to foreclose
would be taken during those years, if the inte-
rest was regularly paid, as therein provided.
The interest being in arrear—Held, that the

[COVENANTS.]

 

Assurance. 157

mortgagee might maintain a petition for sale
before the seven years had ended.—In re
Prendergast, 21. Jur. 145, (1.E.C.)

5. A deed of 1817 contained a covenant that
the profits of certain lands should be given to
A., and that, if not given, A. should be in-
demnified out of the personalty of the grantor.
The deed also contained a covenant for quiet
enjoyment under the grantor, his heirs and
assigns. In 1844 the grantor, by a voluntary
deed, conveyed his personalty to M., and died
three days after. D., the heir, who was also
tenant in tail of the estate, evicted A., who
was in possession of the lands, not in his cha-
racter of heir, but of tenant in tail. There was
not any evidence that the grantor was indebted
in 1844. Held, that the deed of 1844 was not a
fraud upon the covenant in the deed of 1817,
such as to enable a Court of Equity to set the
former aside.

Semble—That a covenant against the acts
of heirs and assigns does not regard the tenant
in tail—Lambert v. L., 61. Jur. 37. (C.)

6. A., being tenant for life of lands, was
also entitled to be paid during his life the
interest upon an incumbrance prior to his
life estate, vested in the trustees of his mar-
riage settlement. B., who had full notice of
A.’s interest, took from him a mortgage of his:
life estate in the lands, with some collateral
securities, without requiring any assignment
of his interest in the prior incumbrance. The
mortgage contained a covenant that, in de-
fault of payment, the mortgagee might enter,
and hold the land free from incumbrances.
The lands were subsequently sold in the I. E.
Court; and the Commissioners invested in
stock a sum of money to answer the charge
vested in the trustees. Held, that, by the deed
of mortgage and the covenant, the life inter-
est of A. in the stock was specifically charged
with the payment of the mortgage debt.—
King v. Daly, 6 I. Jur. 50. (C).

7. A., upon borrowing money of B., under-
took to assign to him legally, when requested,
two judgments against C. as collateral secu-
rity for payment. Afterwards A. voluntarily
assigned these judgments on record to a third
party, in trust for the separate use of A.’s
wife. It did not appear that the trustees or
A.’s wife had any notice of the previous agree-
ment. Held, that, notwithstanding the assign-
ment on record, the voluntary trusts were
void as against B., and that he was entitled
to have the judgments assigned to him in
pursuance of the agreement, his right being
an “equity” within the meaning of the 25
G. 2, c. 14.— Macan v. Richardson, 6 I. Sur.
237. (C.) ‘

8. A., tenant for life of lands (with power
of charging £1000 thereon for his own use),
remainder (in the events which happened) to
his daughter B. in tail male, by a deed for
value, conveyed the lands, and all his interest
therein, to B., subject, amongst other things,
to the charge of £1000, and covenanted for
good title, quiet enjoyment, and further as-
Fo r title, &c .,

surance. B. subsequently purchased a judg-
ment for £3000 entered against A. before the
date of the conveyance. Held, that, although
the effect of the conveyance was not to merge
the charge during the lifetime of A., yet that
the petition must be dismissed with costs, on
the principle of equity, that a tenant for life,
having a charge on the inheritance for his
own benefit, cannot deal with it so as to pre-
judice a judgment creditor on his life estate ;
and because, under the covenant for quiet
enjoyment, A. was bound to indemnify B.
against the judgment, the amount of which
he must pay before he could raise his charge
of £1000.—In re Gardiner, 11 I. C. R.519. CL.
E.C.)

1. By marriage settlement of 1794, A. con-
veyed lands, of which he was seized in tail in
remainder, together with all other the lands,
&c., which he was then, or thereafter might be
possessed of or entitled to in reversion, re-
mainder, or otherwise howsoever, to trustees,
to the use of himself for life; remainder as
he should appoint amongst the issue male of
the marriage; remainder over; and covenanted
to do any act or execute any conveyance, if
required, of and concerning the specified
lands, or any other lands and premises of
which he should at any time thereafter be
possessed of or entitled unto, &c., for the fur-
ther, better, and more perfect and absolute
carrying the settlement, and the true intent
and meaning of the parties thereto, into full,
legal, and perfect execution. In 1819, a judg-
ment was recovered against A., and in 1839 he
became entitled, as heir-at-law of his brother,
to other lands not specified in the settle-
ment. In 1859, A.died. Held, that the trusts
of the deed of 1794 attached to the latter
lands on their acquisition by A., without any
further act by him; and that his eldest son,
claiming under that deed, was entitled to hold
them discharged of the judgment.

Britton v. M‘Donald, 5 V. E. R. 275, disap-
proved of, and qualified.—Stack v. Royse, 12
LC. R. 246; 71. Jur. N.S. 114. (R.)—[Affd.,
1B 1. C. R. 218; 71.Jur. N.S. 249. (C.A.)]

2. The assignor of a judgment who, by the
deed of assignment, covenants not to do any-
thing to vitiate or defeat the assigned judg-
ment, is not entitled to enforce prior securities
vested in him, so as to exhaust the property
subject to the assigned judgment.— Williams
vy. W., 121.C. R. 507. (C.)

3. In a marriage settlement, executed in
1812, the husband, B., covenanted with the
trustees that his heirs, &c., would, from and
after his death, pay to his widow, if she sur-
vived him, an annuity of £40, and that they
would pay the trustees £400 for the children
of the marriage. B. became indebted to one
of the trustees, who, in 1828, entered up judg-
ment against B. for £600, and also effected a
policy of insurance upon B.’s life for a simi-
jar amount. The judgment was subsequently
assigned to C., who also purchased a judg-
ment obtained against B. in 1834 for £200;
on which occasion a policy of insurance had
been effected on B.’s life.

[COVENANTS.]

 

To settle, Sc.

In 1860, the property comprised in the set-
tlement of 1812 was sold in the L. E. Court;
and, upon the settling of the final schedule of
incumbrances, a Judge of that Court declared
that the jointure, and the £400 for the child-
ren, were entitled to priority over the judg-
ment of 1828, and that the judgment of 1834
had been satisfied by payment of the amount
reserved by the second policy. On appeal—
Held, that both judgments should have pre-
cedence of the jointure and of the £400; that
the provision made in the settlement for the
widow and children was only to affect such
property as the settlor should leave after pay-
ment of his just debts; that the trustee was
not, as a trustee, disqualified from dealing
with the settlor, even though such dealing
might have the effect of injuring the pro-
vision for the widow and children; and that,
where such transactions have been, with full
knowledge of the state of facts, acquiesced in
by c. g. trusts, for a long period of time, it
would be dangerous, and against public po-
licy, to allow them to be re-opened.—In re
M'Kenna’s Estate, 13 I. C. R. 239. (C.A.)

 

TX. 4. Covenants running with the Land.

4. Quere—Whether an action for breach of
covenant running with the land can be sus-
tained, when the lessor has not executed the
lease, though the lessee has entered into
receipt of the profits of the property demised ?
Hungerford v. Becher, 51. C. R. 417. (R.)

 

IX. 5. Covenants to settle, charge, or bar.

5. By marriage articles, M. covenanted that
he would, at his death, leave and devise to W.,
his heirs, executors, &c., all such property,
real and personal, as he should then be pos-
sessed of, or entitled unto, charged with a
jointure for his wife, and with pecuniary lega-
cies not exceeding £1000; and that the eldest
son of the marriage should have and be en-
titled unto £400 a-year, to issue out of, and be
charged upon all and singular the real and
personal estates which M. or W., or either of
them, should be seized and possessed of or
entitled unto, subject to a sum of £2000 for
the younger children of the marriage. Held,
that by the proper construction of this cove-
nant, it bound only the estates real and per-
sonal of M. at his death, after payment of his
debts, and the jointure and the legacy of
£1000.

This covenant did not bind the property of
the covenantor, so as to prevent his disposition
of it during his lifetime.

The property being by such a covenant left
in the absolute power of the covenantor, it is
subject to his debts.

Quare—Whether this rule applies when the
covenant is to charge the estate with a specific
sum, and not to settle some aliquot part of it?
Ennis v. Smith, 1 Jo. & Ca. 400. (E.E.)

6. In 1817, A., not then a trader, on his
marriage, covenanted that all his property,
real and personal, as well that in possession
as what he should thereafter acquire, should
To settle

be charged and chargeable with £3000 as a
provision for his wife, and for the issue of the
marriage as therein mentioned. After his
marriage, A. became a trader, and in 1835
was declared a bankrupt. On a bill filed by
his wife and children, who were interested
under the settlement; Held, that the covenant
to charge after-acquired property created a
valid charge on all A.’s freehold estates bought
after his marriage, and should be specifically
executed against his assignees.—Lyster v.
Burroughs, 1 Dr. & Wal. 149. (C.)

1. A father, entitled to a sum of money on
mortgage, covenanted on the marriage of his
daughter, that a certain specified part of it
should be transferred to the trustees of the
marriage settlement within three months after
his death, and covenanted to pay interest in
the meantime. The covenant was held to
amount to an actual assignment.—Brownlow
v. Earl of Meath, 2 1. E. R. 883; 2 Dr. & Wal.
674. (C.)

2. Upon T.’s marriage with H., T. covenan-
ted to convey certain lands upon trust for the
issue of the marriage, and that such issue
should be further entitled to £1000 charged on
all other of T.’s real and personal estates not
comprised therein, but in such shares as T.
should appoint by deed or will; in default of

appointment, as H.; if she survived T., should:

appoint by deedor will: failing such direction,
in equal shares. Held, that a Court of Equity
would execute the articles by giving successive
powers of appointment to T. and H., witha
limitation, in default of appointment, to the
children as tenants in common in fee.—
Thompson v. Simpson, 1 Dr. & War. 459. (C.)

3. A covenant by the husband, in marriage
articles, to provide a jointure of £200sterling
per annum, such jointure to be levied on the
lands of D. and B., though the jointure be
paid, will not bar the wife’s right to her dis-
tributive share of the personal estate.— Creagh
v. C, 81. E. RB. 68. (C.)

4, In a suit against trustees by a husband,
who covenanted to effect a policy of insurance
with a respectable insurance co., and to assign
the same to trustees; but who insured with a
friendly society, the rules of which subjected
the insured to the danger of expulsion, and
did not allow an assignment, but allowed a
nomination, nearly tantamount to it, and
whose capital was not proved ; it was referred
to the Master to ascertain whether the cove-
nant was fulfilled, the plaintiff to pay the
costs.

Semble—The covenant was not fulfilled.—
Courtenay v. C., 9 I. E. R. 829; 3 Jon. & L.
519. (C.)

5. A dill was filed in 1816, for the specific
execution of a covenant contained in marriage
articles, alleged to have been executed in
1760, but then to be lost or destroyed; in
which the covenantor agreed to bequeath to
his intended wife, in case she survived him,
one-third part of the fortune or substance

([COVENANTS.]

 

Charge, &e. 159

which he should die possessed of or entitled
unto. Held, that the memorial of registry of
such alleged articles, bearing date the Ist of
February 1763, though not executed by the
covenantor, was admissible in evidence against
those claiming under him, not only of the
execution, but of the contents of those articles.

Also, that the words “fortune or substance,”
contained in the covenant, embraced and in-
cluded within them as well the covenantor’s
real as personal property.—Scully v. S., 10 I.
E. R. 557. (H.L.)—[Affg. decree of Ld. Ch.
of Ir.] See Biggs v. Sadlier, 10 I. E. R. 522.
(E.E.); 4H. L. Cas. 435.]

6. A marriage settlement recited that O.
had a contingent remainder in lands, under a
will. He covenanted to convey them to the
uses of the settlement when the remainder
became vested in him in possession. O. had
no such contingent remainder, but was merely
presumptively entitled to the lands, on the
death of the tenant in tail, under the will,
who barred the remainder, but devised the
lands to O., who sold them. Held, that the
covenant did not attach upon the lands, as he
acquired them by a title different from that
described in the settlement. V. devised lands
to his son, G., for life; remainder to his first
and other sons in tail; remainder to his
daughters, tenants in common, in tail; and,
if either died without issue, then to his sur-
viving daughter and the heirs of her body; in
default of such issue, to his right heirs for
ever. Held, that “surviving” meant “ other.”
{Noel v. Bewley, 3 Sim, 103, doubted.]—Smith
v. Osborne, 6 H. L. Cas. 375; 3 I. Jur. N.S.
41. (H.L.)—[Partly revg. Osborne v. Smith, 4
LC. R.58. (C.)]

7. A covenant to pay £100 to trustees for
the full and sole use of an intended wife during
her life, and that the interest or residue re-
maining at her decease should go to the
children of the marriage, makes the fund
settled the separate estate of the wife.

‘When a married woman has been supported
by her husband, no retrospective account will
be given of her separate estate against his
assets. There is no difference whether it be
pin-money or not; or whether it is secured by
articles remaining in jieri, or by an executed
trust.—Arthur v. A., 111. E.R. 511. (C.)

8. A marriage settlement vests freehold
leases in trustees, “to hold to the use of the
said A. and his heirs and’ assigns, from the
perfection of these presents, for and during
the term of his natural life, without impeach-
ment of waste,” with a power to lease, re-
mainder to said trustees to preserve, and,
from the decease of A., to secure a jointure
of £80 to B. (A’s wife). Then follows a
covenant by A., charging the jointure on
after-acquired estate, with power of distress ;
“and further, that said lands, after the de-
cease of the survivor of A. and B., in case
there should be but one child of said mar-
riage, to the use of such only child, and the
heirs of his or her body lawfully issuing ; and
in case there should be more than one such
160 To settle,

child, then to such children in such shares
and proportions as the said A. shall by deed
or will appoint; and in default of such ap-
pointment, then to the use of all the children,
as tenants in common, share and share alike.”
Held, that the words ‘‘and his heirs” should
be rejected, and that A. takes a life estate.

That the clause beginning “and further”
is a limitation in continuation of, and direct
sequence upon the limitations to trustees to
preserve.

Semble—That, if that clause be a covenant
to settle after-acquired property on the child-
ren, a Court of Equity would not mould the
trusts in any manner, as they are fully de-
clared.

Semble—That, assuming it to be such a
covenant, after-acquired property settled ir-
respective of such covenant by A. on a child,
must be brought into hotchpot.—In re Ham-
mersly, 11 I. C. R. 229. (L.E.C.)

1, A., having in his marriage settlement
conveyed leasehold estates, of which he was
then possessed, to trustees to hold to his own
use during his life, and after his decease to
the use that his intended wife should receive
thereout a jointure of £80 a-year, covenanted
to charge all the lands of which he was seized
at the time of his execution of the settlement,
or of which he should at any time thereafter
become seized, with the payment of the join-
ture.

The settlement then proceeded: — “And
further, that the said lands, after the decease of
the survivor,” should be to the use of the
children of the marriage. Held, that the
words “ said lands” referred to the lands then
conveyed to the trustees, and that the children
of the marriage did not under the settlement
acquire any interest in the after-acquired pro-
perty.—[Affirming 11 I. C. R. 229. (L.E.C.) ]
—In re Hammersly’s Estate, 12 I. C. R. 319; 6
I. Jur. N.S. 328. (C.A.)

2. Marriage articles recited that the in-
tended wife was entitled to legacies, which
had not been reduced into possession and
were computed to amount to £2000. It was
agreed that, in consideration of the wife’s
fortune, the husband should execute a bond,
conditioned for the payment of £2000, with
warrant of attorney to confess judgment,
which should be vested in trustees, in trust
that they should, when they should think fit,
call in the amount secured, and invest the
sum so realised in the funds or on mortgage ;
and permit the husband to receive the in-
terest for his wife, or until he should become
bankrupt or insolvent, or enter into a com-
position with his creditors; and after his de-
cease, or on his becoming bankrupt, so to
permit the wife to receive the interest for
her separate use for life, and after her de-
cease in trust for the issue of the marriage.
The articles contained a covenant with the
trustees that if at any time during the cover-
ture any real or personal estate should
descend to or devolve on, or become vested
beneficially in the wife, or any person in
trust for her, the husband should do all neces-

[COVENANTS.]

 

Charge, ec.

sary acts to vest it in the trustees, upon
the aforesaid trusts. The trustees paid two
of the legacies, recited in the articles, which
came to their hands, to the husband, a trader,
while he was solvent; but did not enter
judgment on the bond until three years after
the marriage, when he was insolvent, though
they registered the warrant of attorney.—
Held, that the covenant did not apply to
the legacies recited in the articles; and
therefore that the trustees were not guilty
of a breach of trust in paying them to the
husband. That, as the husband had no land
on which judgment could be attached, the
trustees were not guilty of a breach of trust
by not entering the judgment forthwith.—
Macken vy. Hogan, 141. C. R. 285. (R.)

3. When a settlor covenants that all his
real and personal property whereof he then
was, or should at any time thereafter be pos-
sessed or entitled unto, shall stand charged
with payment of a sum for the trusts men-
tioned in the settlement, that covenant to
charge after-acquired property is incapable of
registration under the Registry Acts, so as to
give the settlement priority over subsequent
purchasers for value, without notice, of these
after-acquired lands.—[Gubbins v. Gubbins, 1
Dr. & Wal. 160. x. considered; and, Held, not
a contrary decision.]—Re F. & W. Olden, 9 I.

‘Jur. N.S. 297. (B.)

4. A marriage settlement recited a will
whereunder the intended husband was enti-
tled, if he survived his father, to a share of
the residue; and further recited a power ena-
bling the trustees of the will to advance;
that upon the treaty, &c., it had been agreed
that the husband should, in order to provide
for the wife if she survived him, insure his
life; and as a further provision for her in that
event, would, in addition to the amount se-
cured by the insurance, convey to a trustee
one-fourth part of the share of such residue
as the husband then was, or should at any
time become entitled to under the will, or in
pursuance of the powers granted to the trus-
tees thereof, or of any application or appoint-
ment made or to be made thereof. Covenants
by him to convey to trustees one-fourth of
any portion of the residue that should come
to him during the marriage by virtue of the
will; and for further assurance thereof, upon
the declared trusts, which were for him for
life, for the wife absolutely, if she survived
him; otherwise, for the children of the mar-
riage. During the wife’s life several advances
were made to the husband by the trustees of
the will. He, his father, and several children
survived the wife. Then the husband’s father
died. Held, that the settlement bound only
such portions of the residue as came to the
husband during the coverture; and therefore
that he was not bound to convey the one-
fourth to which he became entitled on his
father’s death.

Held also, that the advances were within
the covenant, and bound by the .trusts.——Ar-
mit v. Bredin, 171. C. R. 165. (R.)

 
Against

X. 6. Covenants against assignment: and gene-
rally.

1. A lease contained a non-alienation
clause. Semble—that a letting under the
Court would not be a forfeiture—Rogers v.
Bateman, Flan & K. 482. (R.)

2. K., entitled to a large sum charged upon
land, in 1826, upon the marriage of his
daughter, covenanted that he would direct
and appoint, and otherwise assure that £20,000,
part of his personal estate, should, within
three months after his decease, be transferred
to, and vested in, the trustees of his daughter’s’
settlement. In 1836, K., by will, directed that
in performance of this covenant, £20,000 should
be paid to the trustees of the settlement out
of the aforesaid charge, and if that proved
deficient, then out of his residuary personal
estate. K. had, in 1820, given his bond with
warrant for confessing judgment thereon, on
which judgment was entered. Held, that as
against the charge, the trustees claiming under
the covenant were entitled to priority over
the judgment creditor—Brownlow -v. Earl of
Meath, 2 Dr. & Wal. 674; 2 1. E. R. 383. (C.)

3. By deed executed in 1809, lands were
conveyed, subject to the payment of money,
which the grantee thereby covenanted with
the grantor to pay to third persons. Held,
that notwithstanding the covenant, only six
years’ arrears of interest could be recovered.—
Hughes v. Kelly, 3 Dr. & War. 482; 51. E. R.
286. (C.)

4. In the settlement executed upon the mar-
riage of his son, the settlor, A., covenanted
absolutely for title with the lady’s father, and
afterwards, in the same deed, covenanted in a
qualified manner with the trustees, for title
to the same lands. Semble—That the latter
covenants, though entered into with different
covenantees, restrained the generality of the
former.—Martyn v. Macnamara, 4 Dr. & War.
411; 2 Con. & L. 541. (C.)

5. A settlement made by H. on the marriage
of his son, T., provided £500 per an. for T.
during H.’s life; the rest of the property to
belong to H. for life, and after his death
to T.; £200 for T.’s wife, if she survived T.,
and £500 among the issue after T.’s death.
H. covenanted that the yearly profits of the
premises, and other the property to which T.
would be entitled after H.’s death, exceeded
£1000 per an., and should continue to be of
that value during the life of the survivor of
T. and his wife. Held, that this was a con-
tinuing covenant only during the life of T.
and his wife, if they survived H.; and that, H.
having survived them, T.’s representative had
not a right of suit to have satisfaction out of
H’s personal estate, though the properties did
not amount to the £1000 per an.— Wood v.
Jamieson, 61. E. R. 420; 1 Jon. & L. 3. (C.)

6. Queere—Whether the occupation of houses,
with small portions of land thereto attached,

[COVENANTS]

 

Assignment. 161

is any breach of a covenant against subletting,
when the occupiers are labourers of the lessee,
hold merely as his servants, and are bound to
give up the premises on demand by him?—
Browne v. Sligo, 101. C.R.1; 5 I. Jur. N. S.
85. (C.)

7. The lessee under a lease, which contained
a covenant against assignment, agreed to as-
sign his interest. The purchaser petitioned
for specific performance. The lessee alleged
in defence that he could not obtain the lessor’s
assent to the assignment. Held, that a Court
of Equity could not relieve the purchaser.—
Mearav. M., 81. C. R. 87. (C.)

8. A lease of lives renewable for ever con-
tained a covenant on the part of the lessee,
his heirs and assigns, that he and they should
not alien the lands (which consisted of two
denominations, A. and B.) without the consent
of the landlord. Subsequently the reversioner
took a conveyance of A. The tenant of B.
applied for a fee-farm grant of it, under the
Ren. L. Con. Act. Held, that as the covenant
against alienation expressly applied only to
the whole of the lands, it could not be con-
sidered as “subsisting,” in reference to B.,
pera the meaning of the 10th section of the

et.

Per the Lord Ch.—A covenant against alien-
ation without license from the landlord is
repugnant to the estate intended to be created
by the Act, and therefore should not in any
case be inserted in a grant under it.—ZJn re
Quin, 8 I. C. R. 578. (C.A.)

9. Semble—A license to set, at the tenant’s
convenience, any part of the premises included
in a lease containing a non-alienation clause,
does not authorise an assignment of them.—
Clarke v. Armstrong, 10 I. C. R. 263: 5 I. Jur.
N. 8.89. (R.)

10. The L. E. Court has power to sell the
interest created by a lease containing a cove-
nant against assignment, when the lease has
been deposited by way of equitable mortgage.
—£x parte Domville, 141. C. R. 19. (C.A.)

 

COVERTURE.

See HusBanpD AnD WIFE.

 

CREATION. ;
— Of Estates tail. See Estate, II—Wut,.
XV.

— Of Estates for life. See Estate, II—Wi11,
— Of Joint Tenancy. See Estate, VI—W111,

— Of Tenancy in Common. See Estate, VIII.
Witt, XV.

— Of Charge on Land. See ibid.

— Of Lien. See Lien, I.

— Of Trusts. See Trusts, II.

21
162 Rights, Sc.

CREDIT OF WITNESS.

See Practice, EvipEnce.

 

CREDITOR.

See Destor anp CREDITOR, passim.—Prac-
TICE, CREDITOR’s SuIT.

— His Right to sue Debtor to Estate of Testator.
See DEBTOR anD CrEpITOoR, IT.

— By Specialty or Simple Contract. See Duestor
AND CrEpDIror, III.

— Frauds on. See Destor anv CreEpITOR, V.

— When a necessary Party to a Suit. See
Pieapine, Parry.

— Costs of. See Practice, Costs.

 

‘ Statutes.

To prevent frauds on creditors by secret
warrants to confess judgment—3 G. 4, e. 89.
Creditors of Companies—7 W.4, and 1 Vic.,
ce. 73.

Remedies against debtors’ property—3 & 4
Vic., c. 105; 16 & 17 Vic., c. 118; 19 & 20 Vic.,
c. 102; 20 & 21 Vic, c. 60.

Registration of Bills of Sale—17 & 18 Vic.,
vc. 55.

 

CRIMINAL MATTERS.
See Jurispiction, VIII.

 

CROSS.

— Brits or Excuanct.

— Cause or Bill. See Preapine Brrt—Prac-
TIcE, Cross Brtxu. Costs of, Sc. See
PRACTICE, Costs.

— Examination. See Practicr, EvipENce.

 

CROWN.

— Effect of Bankruptcy with respect to.
Banxruptcy, IT.

— Pension from. See Pension.

— Coststo. See Practicsr, Costs.

See EXCHEQUER.—FOREFITURE.
I. Rieuts, Durizs, &c., oF, IN GENERAL.

II. Resprctine Grants, &., BY.

Il. Ricuts oF, WHEN THERE IS NO HEIR OR
NEXT-OF-KIN—IN CASES OF ALIENS,
Fetons, &c.

IV. Rents.

See

 

I. Crown’s Ricuts, Durizs, &c., IN GENERAL.

1. A Crown debt, over-riding the debtor’s
whole estate, having been levied out of one
portion only of it vested in a mortgagee.—
Held, that he was not entitled to contribution
from purchasers of other portions of the estate,
who derive title under settlement for value
anterior to the mortgage.—Hartley v. O’Fla-
herty, L. & G., temp. Plunket, 208. (C.)

2. J., having granted to A. and her assigns
for ever an annuity of £300, charged on all

[CROWN]

 

Generally.

his property, devised his estate to pay debts,
&c.: the residue to the use of his illegitimate
daughter, E., for life; remainder to K. and his
heirs. Soon after E.’s death, and 19 years
after J.’s death, A. filed her bill against K.,
the Att.-Gen., and the executor and trustee
of the will.. The bill stated that no demand
on account of the annuity had ever been
made upon E., during whose life A. and E.
were ignorant of A.’s rights: that E. died in-
testate and unmarried: and that upon her
death all her property vested in the Crown.
Prayer—That the arrears of the annuity from
J’s death might be raised, &c. Demurrer
thereto. Held, that, supposing E.’s personal
estate should have been represented, the Att.-
Gen. sufficiently represented it, under the cir-
cumstances, in right of the Crown, and with-
out any grant of administration.—M‘Kiernan
vy. Kernan, 41. E. R. 269; Fl. & K. 353. (R.)

3. The rights of the Crown are not barred
by any Statute of Limitations, unless expressly
named therein.

And this rule extends to cases where the
right of the Crown is merely nominal—Reg.
v. Bayley, 1 Dr. & War. 213; 41. E. R. 142.
(C)

4, The recognizance of w tenant under the
Court, and his sureties, is not a debt due to
the Crown.— Creed v. C.,41. E.R. 299. (E.E.)

5. A. bequeathed the residue of her per-
sonal property to W., to be by him applied for
such pious purposes and uses as should appear
to be most conducive to the honour and glory
of God, and to the salvation of her soul.
Upon a bill to administer to her assets, this
was decreed to be a good charitable bequest ;
and a reference was made, with W.’s consent,
to the Remembrancer to settle a scheme.
died before the Remembrancer reported—-
Feld, that therefore the fund belonged to the
Crown, to dispose of by sign manual.—Felan
y. Russell, 4 I. E. R. 701; Long. & T. 674.
(E.E.)

6. By letters patent of 31 Car. 2, lands
were granted to A. in tail male. A rent,
equal in amount to the quit-rent prescribed
by the Act of Settlement, was reserved. A.
conveyed the lands to S. and his heirs, saving
the estate and right of the Crown. In 1776,
the estate tail determined by failure of A.’s
issue male. Down to the filing of the bill in
1841, the representatives of 8. remained in
possession of the lands, with which they dealt
as if they had the fee-simple. The rent re-
served by the letters patent was regularly
paid to the proper officer, and the usual re-
ceipt given for it as quit-rent. Held, that the
Crown’s right to the lands, which accrued on
the determination of the estate tail, was barred
by the 48 G. 3, c. 47, the case not coming
within any of the exceptions in its first sec-
tion.— Tuthill v. Rogers, 6 I. E.R. 429; 1 Jon.
& L. 36. (C.)

7. In proceeding on a sci. fa. on a recog-
nizance, costs cannot be given against the
Rights, &e.

oe Queen v. Hobart, 11 I. E.R. 397.

1. Quere—Whether a surety’s recognizance
for a tenant of lands, after being transferred to
the M. R., becomes a record of the Court of
Ch., and capable of being sued on there, even
by the Crown, under its special privilege of
selecting its Court ?—The Queen v. Jones, 1 I.
C. R. 524. (C.)

2. The Crown, though not bound by the
3&4 W.4, . 55, s, 31, and 38 & 4 Vic., c. 105,
s. 20, which gives to creditors by judgment or
recognizance a right to have a receiver ap-
pointed on petition, may take advantage of
the Acts, but is bound by the restrictions im-
posed on that right by the 12 & 13 Vic., c. 95,
s. 10.

A judgment in sci. fa. on a recognizance
being merely an award of execution, a recei-
ver may be appointed on a recognizance (not-
withstanding the 12 & 13 Vic., c. 95, s. 10),
if it was enrolled more than a year before the
petition is presented, though the judgment
was entered within the year. :

Petitions for receivers on tenants’ and re-
ceivers’ recognizances should be entitled in
the name of the Queen, and the Attorney-
General should be the petitioner—The Queen
v. Cruise, 21. C. R. 65. (R.)

3. The Crown is not bound by the Bankers’
Acts, 33 G. 2, c. 14 (r.), and 40 G. 3, ¢. 22
Cir.) ; and there is no distinction in this re-
spect between a Crown debt proper, and one
upon foot of a receiver’s recognizance, which
is executed for the benefit of the subject;
and is in reality a security between private
aa Q. v. Guinness, 3 I. C. R. 211.
(Cc.

TJ. Respectinc Grants, &e., By.

4, The Crown may, by its prerogative, annex
to a grant in fee a condition against aliena-
tion.— Fowler v. F., 16 I. C.R. 507. (R.)

 

Ill. Crown’s RicHTts WHEN THERE IS NO
HEIR, OR NEXT-OF-KIN: IN CASES OF
Aiens, Fetons, &e.

5. By letters patent of 31 Car. 2, the lands
of H. were granted to A. in tail male, anda
rent of three pence per acre, the amount of
quit-rent prescribed by the Act of Settlement,
was reserved. In 1681, A. conveyed the lands
to S. and his heirs, saving the estate and right
of the Crown. In 1776 the estate tail deter-
mined by failure of issue male of A. The
representatives of S. remained in possession
of the lands down to the filing of the bill in
1841, and dealt with the estate as an absolute
estate in fee. The rent reserved by the letters
patent was regularly paid to the proper officer,
and the usual receipt given for it as quit-rent.
Held, that the right of the Crown to the land
on the determination of the estate tail, was
barred by the 48 G. 3, c. 47, the case not
coming within any of the exceptions in its

[CROWN.]

 

Generally. 163

first section. — Tuthill v. Rogers, 61. BE. R. 429 ;
1 Jon. & L. 36. (C.)

6. Administration of the goods, &c., of a

felo de se granted to the Crown’s nominee,

although there was a will appointing execu-
tors.—Ure’s Goods, 8 I. Jur. N.S. 136. (P.)

 

IV. Crown Rents.

7. Quit-rents and crown-rents are charges
and incumbrances on lands.—JMassy v, O'Dell,
91. C. R. 441; 31. Jur. N.S. 360. (R.).

8. Quit-rent is a perpetual charge, vested in
the Crown, annually issuing out of an estate
in fee. It is a charge which may be enforced
after any period of time. It does not allow
of a prescription to discharge it; and, being
vested in the Crown, is not bound by the
Statute of Limitations——Hutton v. Waddy, 2
Jones, 541; H. & Jon. 601. (E.E)

 

CURRENCY.

9. Before 1826 a marriage was solemnized
in England between a gentleman domiciled in
Ireland and a lady domiciled in England. By
their marriage settlement, which was drawn
and executed in England, and of which one
of the two trustees was domiciled in England,
the other in Ireland, the husband assigned to
trustees lands in Ireland of which he was pos-
sessed in fee, for a term of 500 years; upon
trust, among other things, to levy and raise
by perception of the rents and profits, or by
sale or mortgage, a sum of “£5000 of lawful
British money,” as portions of the younger
children of the marriage, and to hold the same
in trust for the said children in such shares
as the husband should appoint. Held, that
the portions should be paid in British cur-
rency.—In re Boate’s Estate, 10 I. C. R. 164.
(C.A.)

 

CURSITOR.

See Practice, OFFICER oF Court.
Estates, II.

 

CUSTODIAM.

10. A creditor by custodiam, on a judgment
in a penalsum, obtained an order to appoint
a receiver. ed, not entitled to interest
beyond the penalty which had accrued due on
the principal subsequent to the receiver’s ap-
pointment.—Barry v. Wilkinson, 3 I. E. R.
121. (E.E.)—[See observations on this case,
wid, 564.]

11. Proceedings to a custodiam, under which
no money was received, irregularly taken by a
person equitably entitled to a judgment, under
an assignment of which no memorial had ever
been registered, suffice to prevent the bar of
the 8 G.1.,c. 4, sef up in a suit afterwards
instituted by the same person to recover the
164

amount of the judgment.—Foster v. M‘Mahon,

 

1LL E.R. 287. (C.)
CUSTODY.
— Of proceedings in Bankruptcy. See Banx-

RUPTCY.

— Commitment to. See CoMMITTAL.

 

CUSTOM.

See Boroveu, Encrise—GavELKIND.
— Of Manor. See Copruoxp, II.
— Foreign. See Forrien Laws.
— Tithes. See Trruszs, XI.

 

CY-PRES PERFORMANCE.
See Cuariry, I. 4.

 

DAMAGES.
See AGREEMENT, VIII. 2. b.—Covenant, VIII.
Jorispiction, V—LanDLorD anp Tx-
NANT, passim—StTIPULATED DaMaGEs.
— Proof of. See Banxrurtcy, XIII.
— Stipulated. See St1rputaTep DamacEs.
The 21 & 22 Vic., ¢. 27, enables the Court
of Ch. to try questions of fact by the aid of a
jury, and to have damages assessed.

 

DAY.
See Time.
— Costs of. See Practices, Costs.

 

DEAF AND DUMB PERSONS.
See Lunacy.

 

DEATH.

See Crvit DeatH—DIsaBILiqiEs.
— Abatement of suit by. See Practice, ABATE-
MENT AND REvivor.
I. EFFECT OF—RELIEF FROM ITS CONSE-
QUENCES.
II. PRESUMPTION AND EVIDENCE OF.

1. On his marriage, Z. settled a sum of
money on the issue of the marriage, but re-
served a life use. The issue were A., B., C.,
D., and E. Going abroad, A. was not heard
of after the 20th Oct. 1817. Z. bequeathed
all his personal property to E., and died in
1824. Thereupon E, claimed two-fifths of the
fund—that is to say, his own share, and A.’s
share, which latter he claimed through their
father. Each of the other three children
claimed one-fourth of the entire fund—that
is to say, each claimed his own share, and also
a distributive portion of A.’s, seven years not
having elapsed between the time when A. was
last heard of, and the death of Z.

On a petition for distribution of the fund,
one-fifth was ordered to be paid to each of the
four surviving children. The remaining one-

 

[DEATH.—DEBT.]

fifth was ordered to remain in Court until
evidence of the death of A. could be produced.
Gore v. G., 61. Jur. 202. (R.)

 

DE BENE ESSE.

Examination de bene esse. See Practicz, Evi-
DENCE.

Depositions taken de bene esse.
EVIDENCE.

See Practice,

 

DEBT

— Of petitioning Creditor. See BANKRUPTCY,
V, VI.

— Accruing after Bankruptcy, proof of. See
Bankruptcy, XII.

— Joint and separate—what, and proof of. See
Bangrurtcy, VI—Practice, Master,
PROCEEDINGS BEFORE.

— Generally, proof of. See BANKRUPTCY,

- Future and contingent, proof of. See Banx-

Ruptcy, XII.

Generally. See Executor, XI—Bonp.

Of Wife. See HusBanp anp Wire, IV.

— Interest on. See INTEREST, PECUNIARY.

— Satisfaction of. See Portions, IX—Le-
GACY—EXEcUOR.

— When Portion is subject to.
XI

See Portions,

— Trust to pay. See Trust, XV.

I. GENERALLY—VALIDITY AND ConstTI-
TUTION OF —WHEN THE RIGHT TO IS
BARRED AND DEFEATED.
II. SaTIsFaTION OF, BY GIFT, LEGACY, &c.—
IMPLIED SATISFACTION OF.
Ill. ExtincuisamMent— MERGER IN, AND
ADOPTION OF OTHER SECURITY.
IV. DiscHarGEr AND RELEASE—EXTINGUISH-
MENT OF DeBr—REVIVAL OF DEBT.

 

I. GENERALLY: VALIDITY AND CONSTITUTION
oF, &e.

2. £4000 was vested in C. and T., in trust to
pay the dividends to F. and his wife for life ;
and, after the survivor’s death, to pay the
principal to the children, in such shares as the
parents should appoint. The trustees sold
out the stock, and invested the produce in
unauthorised securities, and also advanced to
the tenants for life part of the principal. By
these defaults £1200 remained unaccounted
for when the trustees became embarrassed.
C. having declared his intention to leave the
kingdom, the tenants for life, and the children
by their next friend, filed a bill for an ac-
count. T. absconded; C. was arrested under
a writ of ne exeat marked for £1200. He ap-
plied for a discharge, because there was not
any present debt actually “due and payable”
to any of the ptfs. Held, that although none
of the c. g. trusts had a present right to any
part of the principal, yet the money unac-
counted for was a debt due in equity, demand-
able from the defendant as a defaulting trustee,
and sufficient to sustain the writ of ne exeat.—
Waller v. Fowler, 8. & Sc. 274. (R.)

1. Damages for breach of a lessor’s cove-
Validity of.

nant for quiet enjoyment, broken after the
lessor’s death; Held, a debt within a trust in
his will to pay “all such just debts of every
kind as he should happen to owe at his de-
cease,” the context showing an intent to in-
clude any debt payable out of his personalty.

Semble, even without the latter circumstance.
Bermingham v. Burke, 9 I. E. R. 86; 2 Jon. &
L. 699. (C.)

2. A. sold horses to a nobleman, recently of
age, without present property, but entitled as
next in remainder to considerable entailed
estates of which his father was tenant for life.
In lieu of payment, a bond was executed for
£1592, conditioned for payment on the day of
the father’s decease, with interest from the
date. Judgment was entered on the bond.
The buyer died in his father’s life.

The conuzee’s representative filed a bill to
raise the amount. The inheritor of the estates
charged filed a bill impeaching the good faith
of the transaction. An issue, to ascertain the
fair value of the horses at the time of the sale,
was directed. The jury found a verdict for
£1000. Held, that the security should stand
for this sum, and that the proper issue had
been tried, and not what was the value of the
obligor’s bond when executed.—Ormsby v.
The Earl of Limerick, 2 1. Jur. 801. (C.)—
les Hunter v. Lord Limerick, 1 I. Jur. 278.

3. Rent falling due after the death of the
lessee, under a covenant for himself, his heirs,
executors, &c., to pay it, is not a debt which
can, under the Statute of Fraudulent Devises
(4 Anne, v. 5, Ir, 3 W. & MM, c. 14, Eng.), be
enforced against his real estate in the hands
of his devisee.

A., holding premises under a lease, made in
1789, for three lives, with a covenant for per-
petual renewal, demised them in 1803 to B.
for 900 years. That lease contained covenants
by B. for himself, his heirs, executors, &c., to
pay rent and keep the premises in good repair
during the term, and at the end of it to deliver
them up in such repair and condition. In
1830 the last c. g. v. in the lease of 1789 died.
In 1827 and in 1835 renewals had been made
to a trustee for parties claiming under the
will of A. That trustee died in 1840. Another
renewal was then granted to another trustee
for the same persons. B. having died, his
executrix, in 1838, assigned his interest in the
premises to C., whose administrator assigned
them in 1846 to D., a pauper. After the death
of B., the rent payable to the claimants under
A. became in arrear, and the premises fell
out of repair. Upon a suit in equity, institu-
ted by them—AHeld, that the real estate of B.,
in the hands of his devisee, was not liable to
the rent. -

That B.’s personal estate, in the hands of
his executrix, continued liable for breaches of
the covenants to pay rent and to repair.

That the personal estate of C. was, in the
hands of his administrator, liable for breaches
of the covenants to pay rent and to repair,
which occurred between the date of the as-
signment to him in 1838, and that of the

[DEBT.]

 

Satisfaction of. 165

assignment by his administrator to D. in 1846.

That D. would be liable for breaches of
both covenants which might occur during the
period of his occupation.

Semble—That the petitioners were entitled
to substantial damages for breaches of the
covenant to repair, and not merely to such a
sum as would, if kept at interest until the end
of the term, then suffice to put the premises in
repair.—[ Marriott v. Cotton, 2 Car. & Kir. 553 ;
Doe v. Rowlands, 9 Car & Pay. 734; Jenkins
y. Bryant, 6 Sim. 603; doubted. ]—Macnamara
v. Vincent, 21.C. BR. 481; 41. Jur.197. (C.)

 

IL. Saztisraction or Dest By Girt, Lecacy,
&c.. Iupriep SATISFACTION,

4, The acceptance of bonds with warrants,
from a tenant for life, for the arrears of an
annnity and interest upon judgments affect-
ing the inheritance—Held, not a satisfaction
against subsequent creditors, though receipts
were passed at the time —Dartnell v. Taylor,
L. & G., temp. Plunket, 247. (C.)

5. Payment to a creditor by an Assurance
Co. of the amount of the policy on the debtor’s
life is not pro tanto a satisfaction of the lat-
ter’s debt.— Humphrey v. Arabin, L. & G., temp.
Plunket. 318. (C.)

6. A father, upon his daughter’s marriage,
executed, to her intended husband, his bond,
with warrant, &c., conditioned to pay £800 by
instalinents, and afterwards bequeathed £800
to her. Held, that this legacy was not a satis-
faction of the debt due to her husband.—Hall
y. Hill, 4 I. BE. R. 27; 1 Dr. & War. 94; 1 Con.
&L. 120. (C.)

7. £1000 was vested by a settlement in a
father, in trust for the use of his daughter
until she attained the age of twenty-five or the
day of her marriage, with consent; after-
wards, in trust to permit her to receive the
interest for life; after her death, in trust for
her issue as she should appoint. On the
daughter’s marriage, the father, without no-
ticing the former settlement, settled by deed
several sums, amounting to £1933, in trust for
the daughter for life to her separate use; after
her death, in trust for the children of the mar-
riage as the husband should appoint; in de-
fault of appointment, equally; in default of
issue, in trust for the husband. Held, that the
sum secured by the latter was a satisfaction of
the debt due under the former settlement.

In general, a father will be presumed to
have paid the debt he owes to a daughter,
when in his lifetime he gives her on her mar-
riage a greater sum than he owes her. It is
not necessary that there should be an express
stipulation to that effect, or that the husband
should know of the debt.—[Drew v. Bidgood, 2
Sim. & Stu. 424, disapproved of. ]—Hayes v.
Garvey, 81. E.R. 90; 2 Jon. & L. 268. (C.)

8. An agreement which would amount to
accord and satisfaction at Law is a valid de-
fence in Equity, and may be raised by plea. —
Daly v. Kirwan, 101. E.R. 812. (R.
166 Extinguishment of.

II. ExtmncvisHMENT: MERGER IN, OR ADOP-
° TION OF ANOTHER INSTRUMENT.

1. A new security of an order as high as
the former, for an old debt and farther
advances, does not necessarily prejudice the
old security.—Tennison v. Sweeny, 7 I. E. R.
511; 1Jon.& L. 710. (C.)

2. A., B., and C., with D. (deceased), and
two sureties, gave their joint and several bond,
with warrant of attorney, to a bank, as secu-
rity for the balance of an account current not
to exceed £1000. Under the warrant of attor-
ney, the bank entered six several judgments
against the obligors. A., B., and C. became
bankrupts. The bank now sought to prove
on the joint estate for the balance of the
account current due at the time of the bank-
ruptcy. Held, that the bank was precluded
from proving the debt as simple contract;
that the bond was merged in the separate
judgments, and that the proof could only be
against the separate estates of the bankrupts.
—In re Clarkes, 7 I. E. R. 39. (B.) [Reversed
8]. E. R.60; 2 Jon. &L. 2. (C.)]

3. The rule at Law, that when the obligee in
a bond becomes the executor of the obligor,
and receives assets adequate to discharge the
debt, it is extinguished, is also the rule at Law
when one of two obligees is appointed one of
several executors of the obligor.

The same rule prevails in Equity.

This is so albeit the obligees are trustees.

A father, on the marriage of one daughter,
gave a bond to A. and B., conditioned for
payment of £4000; and on the marriage of
another daughter, gave a bond to A. and C.,
conditioned for payment of £4000; and was a
party to the marriage settlements of both
daughters, whereby the sums secured by the
bonds were limited upon trusts. By will,
directing his debts to be paid, and reciting
the acknowledgment of the bonds, he devised
lands to A., and other lands to D., and be-
queathed legacies to both daughters, to be
paid out of his personal estate if sufficient; if
not sufficient, out of the devised lands; ap-
pointed A. and two other persons to be his
executors, and died. More than sufficient
assets for payment of all his debts and lega-
cies reached the hands of A.—Held, that
whether A. had or had not committed a de-
vastavit, the c. gq. trustent had not any equity
to raise the bond debts out of the lands
devised to D., although D. had personally in-
stituted a suit against A. for indemnification
of the lands devised to D. against those bond
debts. To that suit the c. q. trustent were not
parties.— Richards v. Molony, 2 1.C. R.1. (C.)

4, T., having obtained a bond and warrant
from O., entered judgment, and registered it
as a mortgage against his lands. At the date
of the bond T. undertook not to call in the
principal so long as each gale of interest was
paid in three months after it fell due.

A gale fell due. A few days after, T. con-
sented to take a bill at three months, accepted
by O., in payment thereof. This bill having be-
come due, been renewed on the same under-

[DEBT.]

 

Discharge of.

standing as that on which the first was given,
and eventually dishonoured, the amount was
sent by O. to T. in a cheque, and received by
the latter—Held, that T. did not, on non-
payment of the renewed bill, become free to
demand his principal.

That acceptance of payment, as payment of
the gale in question, estopped T. from suggesting
unpunctuality—Zn re Jackson’s Estate, 12 I. C.
R.512. (L.E.C.)

 

IV. Discuarce anp RELEASE: ExtINGuIsH-
MENT OF DEBT: REVIVAL OF.

5. A. obtained a judgment in 1789 against
B., who was then seized of several estates.
B., in 1792, died, and by will devised one de-
nomination to C. and another to D. C., in
1796, married, and thereupon settled the estate
devised to him. The executors of A., in 1828,
revived the judgment of 1789 against C., the
heir, and certain terre-tenants; and thereupon
issued an elegit, and obtained a finding there-
under, prior to the passing of the 9 G. 4, ¢. 35,
but were prevented from getting into posses-
sion by the proceedings of a prior creditor.
The judgment was not revived or redocketed
within five years from the passing of that Act,
according to the provisions of its 8rd sec.
Bill filed within twenty years from the revival
of 1828 against E., claiming under the settle-
ment of 1796, and D., and other parties.—
Held, that notwithstanding the revival of
1828, the elegit, and other proceedings there-
under, no possession haying been obtained,
the plaintiff was barred, as against E., by the
8rd sec. That the judgment creditor (having
a legal right and proceeding against the legal
estate of his debtor) by his omission to re-
docket—thereby exonerating one denomina-
tion of land originally liable, and casting the
entire debt upon the other, without affording
a right of contribution to that other—did not
thereby lose his right to go against that other
for the whole amount; and that no equity
existed to restrain such creditor to the
amount to which that denomination was ori-
ginally liable.

That a judgment creditor, filing a bill ina
Court of Equity for a sale of his deceased
debtor’s freehold estate, need not aver on the
face of his bill that he had sued out an elegit
on his judgment.—Ryan v. Cambie, 9 I. E. R.
378. (E.E.)

6. The decision of the C. P. in Handcock v.
Handcock, 10 1. L. R., 565, on the effect of are-
lease of part of the debtor’s lands from a judg-
ment, in discharging his other lands, doubted.
—Handcock v. H., 11 I. E. R. 472. (C.)

7. V., by will in 1838, devised his real estates
at M. to his nephew, C., and bequeathed lega-
cies amounting to £8000 to other persons.
These legacies were charged primarily on
whatever moneys might be in the bank to V.’s
credit at his death. In 1839, C., at V.’s ex-
press desire, purchased real estates at D. Out
of the moneys then standing to his credit in
the bank, V. lent the purchase-money to C.,
who soon afterwards repaid part thereof. A
General.

balance of £7700 remained due to V. Bya
codicil, in 1840, V., reciting that he had de-
vised real estates to C., charged them with
£8000, with interest at £5 per cent., from his
decease; and directed that £8000, and the in-
terest, to be paid to his executors within six
months from his decease, for the purpose of
paying off legacies— Held, that, in equity,
these facts amounted to a release by V. of
the debt of £7700 due to him by C.; and that
the charge of £8000 must be deemed as sub-
stituted for that debt.—Hedges v. Aldworth,
13 I. E. R. 406. (C.)

 

DEBTOR.

— To Estate. See Desror & Crepiror, II—
PLEADING, Party.

— When made Executor. See Executor, II.
— When proper Party to Suit. See PLeapine,
Party.

 

DEBTOR AND CREDITOR.

See Bankruptcy, passim—Drrps, V—Exs-
cutor, II, XI. — Insotvents — Lr-
cacy, VIII — Pracricz, Costs, 10—
Practice, Crepiror’s Suir — Prac-
tick, Decren, 4—TRADE.

J. THEIR GENERAL AND MUTUAL Riauts,
Dotres anp LiaBinitres — WHEN A
CREDITOR IS FAVOURED IN Equiry, et
e contra.

1. In general.

2. Creditors— When and how favoured

in Equity.

38. Duties ant liabilities of —Touching

Costs, &c.

Wuen A CREDITOR MAY OR MAY NOT
su—E 4 Desror Tro THE Estate oF
HIS DECEASED TESTATOR.

Crepitors By SrEciaLty aND SIMPLE
Contract—How ConstIturED, THEIR
Rieuts, &c.

1. In general.

2. Under, and with reference to sta-

tutes.

3. Charging order.

IV. PayMents—How THEY ARE TO BE AP-

PLIED.
V. APPROPRIATION OF FUNDS, NOT BEING
PayMEnts on Account or Depts.
VI. Fravup on Crepitors. See also Banx-
RUPTCY,
1. Preference of one over another.
2. Voluntary Settlements, Conveyances,

II.

Ii.

Ce.
a. TFhen valid as against Creditors.
b. When fraudulent and void as
against Creditors.
Compounpinc—ComrosiTion DEEDs.
1. In general.
2. Underhand Agreements—their Effects.
RIGHTs AND PRIORITIES BETWEEN DIF-
FERENT CREDITORS.
APPOINTMENT OF RECEIVER. (See Prac-
TICE, RECEIVER.

Vil.

Vii.
IX.

 

[DEBTOR AND CREDITOR.]

Rights of. 167
I. Turrr Generat anp Mvruar Ricurs,
Duties, anp Liasitities: WHEN A
CREDITOR IS FAVOURED IN Equity, et
e€ contra,
1. Generally.
2. Whenandhow Creditors are favoured
in Equity.
3. Duties and liabililies of: touching
Costs, &c.

 

I. 1. The general and mutual Rights, Duties, and
liabilities of Debtor and Creditor : when
Equity favours a creditor, et e contra.

1, A judgment debtor conveyed lands to
the plaintiff, and covenanted against incum-
brances. The judgment creditor afterwards
sued out writs of elegit, on which ejectments
were brought against the plaintiff, who, by
arrangement, paid part of the debt, and of-
fered to pay the remainder, if the creditor
would assign the judgment to him. The cre-
ditor refused to assign the judgment, but
offered to satisfy it. Held, that the plain-
tiff, upon paying the amount of the judgment,
was entitled to an assignment of it.—Rother-
ham v. Flynn, Beat. Rep. 555. (C.)

2. A letter written by the trustee to the
solicitor of a party who had advanced money
for the purposes of the trust, stating that
he (the trustee) would exercise all or any
of the powers reposed in him by the trust
deed, for the purpose of securing the sum
so advanced, will not give such creditor a
locus standi in equity to enforce those trusts
for his own benefit.— Latouche vy. Earl of
Lucan, 2 Dr. & Wal. 432; 7 Cl. & F. 772.—
[Revg. 2 Dr. & Wal. 276. (C.)]

3. A creditor, by judgment entered pur-
suant to » warrant of attorney, obtained an
order for a receiver under the 5 & 6 W. 4,
c. 55, more than two calendar months before
the issuing of a Commission of Bankruptcy
against the conuzor, the respt. Held, that
his execution was protected by sec. 95,
against the operation of sec. 126 of the 6
W. 4, c. 14.—Read v. Davis, 3 I. E. R. 153.
(E.E.)

4. A judgment creditor, having obtained
a conditional order, which is afterwards made
absolute, to extend to his demand a receiver
in another matter, is not, though prior to the
creditor on whose adjudication the receiver
was first appointed, entitled to the arrears
of rent due when the extending order was
made, and afterwards paid to the receiver.

The words “money received” in the 5 &
6 W. 4, c. 55, s. 38, must be taken to include
money which there is a right to receive—that
is, rent due.

In such a case the right of the creditor,
who extends the receiver, attaches at the date
of the conditional order for appointing or
extending him.—Coleman v. Mason, 4 I. E.
R. 421; Long. & T. 545. (R.)—[But see
Burt v. Bernard, 41. E.R. 328; Fl. & K. 414,
(R.), affd. 5 I. E.R. 425 ; 8 Dr. & War. 464; 2
Con. & L. 271. (C.)]

 
168 General.

1. Simple contract creditors are within the
proviso of the 3& 4 Vic., c. 105, s. 22, in favour
of “purchasers, mortgages, and creditors.”
—In re Perrin, 41. E. R. 89. (Aff. 4 1.
E. R. 362; 2 ‘Dr. & War. ie 1 Con. & L.
567. (C.)]

2. In 1828, judgment obtained upon a warrant
of attorney was entered up against a trader,
V. On March 3rd, 1841, there was obtained
against V. « conditional order under the 5
& 6 W. 4, c. 55. That order was made
absolute on April 3rd. On May 17th, a Com-
mission of Bankruptcy issued against Vv.
Some of the simple contract creditors, who
proved thereunder, had been such before the
3 & 4 Vic., c. 105, came into operation. V.’s
assignee moved to remove the receiver. eld,
that the absolute order was that meant by
the 5 & 6 W. 4, c. 55, s. 87; and that the
receiver ought to be removed, because the
petition came within the provisoes of the
3 & 4 Vic. c. 105, s. 22.—Burt v. Bernard, 4 I.
E. R. 328; Fl. & K. 414. (R.)—[Affl. 5 LE.
R. 425; 3 Dr. & War. 464; 2 Con. & L. 271.

(C.)]

3. Semble—The rule requiring purchasers of
property to see to the application of the price
does not apply to debtors, so as to implicate
them in trusts created by their creditors.—
Fernie v. Maguire, 6 I. E. R. 187. (R.)

4. A party entitled to a life estate granted
an annuity for his life, redeemable by him at
the end of five years upon payment of the
original purchase money. The annuitant
effected an insurance on the life of the grantor
in a sum slightly exceeding the amount given
for the annuity; and kept up that policy out
of theaunuity. The grantor, after the expira-
tion of the five years, offered to redeem the
annuity, but required the annuitant to assign
to him the policy. Held, that he was not
entitled to the policy upon the redemption of
the annuity, but that it was the property
of the annuitant.—Law v. Warren, 6 I. E. R.
299. (C.)

5. A debtor who, being entitled to money
charged on land, assigns it in trust to secure
payment of the debt, and then in trust for
himself, cannot insist, as against his creditor,
that the Statute of Limitations bars the trust.
—Heenan v. Berry, 2 Jon. & L. 808. (C.)

6. A., seized for life, remainder to his son
B., conveyed estates to trustees; as to estate
X., in fee, on trust to sell and pay debts; and
as to estate Y., on trust to secure an annuity to
B., and subject thereto to the use of A. for
life, remainder to secure a jointure, remainder
‘for a term to secure portions, remainder to the
use of B. for life, remainder to his first and
other sons in tail. The deed contained a pro-
viso that A. should have power to make leases
of the said premises or any part thereof, and
that A. and B. should have power to revoke all
or any of the use or uses, estate or estates
therein limited, of or concerning the said
lands or premises, or any part thereof, except

[DEBTOR AND CREDITOR.]

 

Rights, ec.

the jointure and term. No creditors were
parties to the deed. Held, that the power of
revocation was, by construction, confined to
estate Y.; but that, the creditors not being
parties, A. and B. could revoke the uses of
estate X. without the aid of any power of
revocation.

Semble—The communication of the exist-
ence of such a trust to the creditors, if acted
on, would prevent its revocation by the
debtors.—Browne v. Cavendish, 7 I. E. R. 369;
1 Jon. & L. 606. (C.)

7. A suit in equity cannot be sustained
after an agreement to refer to arbitration
(naming the arbitrators, and containing a
covenant not to sue; and power to examine
witnesses, and to make the submission a rule
of Court) while the arbitration might be pro-
ceeded with.

Halfhide v. Fenning, 2 Bro. C. C., and 2
Dick., approved of, and the cases in which it
was questioned considered.

By such a deed between A. and B., A. was
to pay B. in four months a sum which he
secured by confessing a judgment. A. did
not pay. 3B. had him arrested. The deed
provided for the attendance of the parties
before the arbitrators, and their examination.
Held, that the imprisonment of A., being the
consequence of his own breach of contract,
gave him no better equity.

Compensation was to be awarded to A. out
of X. for any inequality in a partition of Y-
X., by an event contemplated at the time,
became insufficient. Held, that A. could not
be relieved on that ground.

The reference provided for the appointment
by A. and B. of two arbitrators, who were
before proceeding with the reference to ap-
point a third; and that any two arbitrators
“for the time being” should from time to
time make awards, provided the “last” award
should be made before July 1843, or such
other time as any two arbitrators “for the
time being” should appoint; that any two
“for the time being” should have power to
extend the time for making the “last” award;
and that whether the time had_ previously
expired or not, a Master of Q. B. was “as
soon as conveniently might be” after the refer-
ence, to appoint an umpire, who was to act if
no two of the arbitrators should agree; if A.’s
or B.’s arbitrator should be unwilling, &¢., to
act, the third arbitrator ‘for the time being,”
if there be such, and if not, the umpire “for
the time being” was to appoint a proper
person to be arbitrator in his stead. The
arbitration expired in July, no award having
been made under it. A.’s arbitrator declined
to act. Neither a third arbitrator nor an
umpire had been appointed. Some time after,
the Master of Q. B., being applied to by B.,
appointed an umpire who nominated an arbi-
trator for A., who, in conjunction with B.’s
arbitrator, nominated third, and extended
the time. Held,that the time for the reference
was duly extended.—Dinsdale v. Robertson, 7
I. E. R. 536; 2 Jon. &L. 58. (C.)

8. A creditor on foot of a paramount charge,
General.

went into possession of the debtor’s estate
under his will, of which she was a trustee, and
by which she took some benefit. The will
directed the payment of a puisne mortgage out
of another fund. She did not pay it; but paid
the rents to and for the benefit of the c. g. t.
without paying it or other puisne incumbrances.
In a creditor’s suit—Held, she could not be
charged with anything beyond the sums appro-
priated to her own use, as against the principal
or interest of her own demand, for the benefit
of a puisne creditor, especially as he had been
a solicitor, and had advised her, though as a
friend and without payment, in the applica-
tion of the rents.—Boyd v. Murdock, 7 I. E. R.
607; 2Jon. & L. 208. (C.)

1. By deed (reciting that A. was indebted
by judgment to X. in £3000; A.’s inability to
pay, and an agreement by X. to accept £700
in lieu of the £3000, if punctually paid, to be
secured by B.), B. mortgaged his property to
secure the £700; to be payable by instalments
at certain times. The deed provided that, if
the instalments should not be punctually paid,
X. should be remitted to his original rights
against A., as well as have the security of the
deed for the £700. By a contemporaneous
deed the judgments were assigned to a trustee
for X., in case of default in punctual payment
of the £700; and on payment of the £700 for
A.and B. By a prior deed A. had mortgaged
his property to B. for other debts, and as a
counter-security. Default was made. X.’s
assignee claimed the entire £3000. Held, that
although the Court, would not interfere for A.
if the arrangement were between him and X.
only, yet, as the rights of B. were involved,
the condition in default of punctual payment
should be treated as a penalty and relieved
against; and this equity could be enforced by
A. as well as by B.—Carroll v. O’ Connor, 11
I. E. R. 200. (C.)

2. In the receiver’s hands was a sum con-
sisting partly of rents due at the death of the
tenant for life. Part had been collected
before, and part after, an order extending to
the cause of a prior incumbrancer the receiver
appointed in a suit by creditors of the tenant
for life. Held, that those creditors were
entitled to the rents received before, and the
incumbrancer to those received after the date
of the order.—Moore v. The Marquis of Donegal,
11 LE. R. 364. (R.)—[Affd., 111. E.R. 412.
(C.)] |

8. Sequestrators, being in possession to en-
force a decree, will not prevent the appoint-
ment of a receiver on petition of a prior
judgment creditor. He cannot be paid out of
rents to be received by continuing the seques-
trators.—Reeves v. Cox, Irvine v. Cox, 18 I. E.
R. 247. (C.)

4. A judgment creditor, by arresting his
debtor, forfeits the benefit of the charge on the
debtor’s lands, conferred by3&4 Vic.,c.105. He
cannot, therefore, without suing out an elegit,
in the lifetime of the debtor, obtain a decree
in a plenary suit, to raise the amount of his

[DEBTOR AND CREDITOR.]

 

Rights, &c. 169

judgment by receiver or sale, out of the lands
of the debtor.—Sawyer y. Norris, 7 I. C. R.
314; 31. Jur. N.S. 291. (R.)

5. H. sold horses to G. at more than their
real value. G., a very young man, having an
estate in remainder expectant on the life
estate of his father, gave security by judgment
for the price. Oncross bill filed by A., claim-
ing through G., the judgments were ordered
to stand for the real value of the horses,
though it appeared that the sale had not been
colourable, and was not for the purpose of
raising money.—Hunter v. Lord Limerick, 1
I. Jur. 273. (C.)—[See Ormsby v. the Earl of
Limerick, 21. Jur. 801. (C.)]

6. A debtor paid his debt to A., authorised
by deed executed by the administrator to hold
the intestate’s property. Held, that in the
absence of fraud, the debtor was justified in
paying the money to A., and.was not bound
to see to its application —Kane v. Mussin, 2
I. Jur. 201. (C.)

7. A woman, indebted by judgment, subse-
quently married. Being at the marriage en-
titled to a chose in action, she assigned it to
a volunteer. The chose in action was not re-
duced into possession during the coverture,
and the husband, surviving the wife, took out
administration to her. JZedd, that neither the
husband nor the assignee of the wife could
take anything but the surplus after payment
of her debts.—Blennerhassett v. Monsell, 4 1.
Jur. 177. (C.)

8. A judgment creditor on a life estate
having procured an assignment of incum-
brances on the fee, the tenant for life sought
to enforce his right to redeem the latter as
against his creditor. Held, that his creditor’s
right in this respect was paramount to his
own.—In re Cassan’s Estate, 15 I. C. R. 313.
(1.E.C.)

I. 2. When and how_a Creditor is favoured in
Equity.

9. A creditor coming in under a decree can-
not rely upon a will as creating a trust in his
favour, unless it has been put in issue suffi-
ciently for that purpose, either by the pleadings
in the cause or by the charge and discharge in
the office—O’Kelly v. Bodkin, 21. E. R. 361.
(E.E.)

10. When, in the Court of Chancery, a peti-
tion for a receiver is presented by a judgment
creditor under the 5 & 6 Vic., c. 55, the veri-
fying affidavit need not state separately the
sum due for principal, for interest, and for
costs on foot of the judgment.

When the petitioner sought to appoint a re-
ceiver over lands, and it subsequently and
very obscurely appeared that the respondent
had estates in a portion only of them, the
Court refused to make absolute the condi-
tional order.—Tredennick v. Graydon, 1 Dr. &
Wal. 316. (C.)

22
170 When Equity

1. Theexecution of a trust deed for (amongst
other things) the payment of creditors, does not
make one who became acreditor after its exe-
cution, and was not a party to it,ac. qg. t.
entitled to call on the trustee to execute the
trusts of the deed—LaTouche v. Earl of
Lucan, 2 Dr. & Wal. 432; 7 Cl. & F.772. (H.
L.)—[Reversing the decision in 2 Dr. & Wal.
276. (C.)]

2. When a wife was entitled to receive,
during the joint lives of herself and her hus-
band, the interest of stock, to her sole and
separate use, without power of anticipation,
and there were limitations over of the prin-
cipal in favour of herself and her husband,
the Court, upon a judgment creditor’s peti-
tion, made, under the 3 & 4 Vic., c. 105, an
order charging the judgment upon the stock,
without prejudice to her right of receiving
the interest during her coverture.—Curter v.
Mahon, 4 I. E. R. 305; Fl. & K. 342. (R.)

3. On a judgment creditor’s petition for a
receiver, under the5 &6 W. 4, c. 55, the debtor
is entitled to all the rents due before the
making absolute of the conditional order ap-
pointing the receiver—-Loughlin v. Longan,
41. E. R. 325. (R.)

4. Judgment creditors’ rights for arrears of
interest are co-extensive as against the real
and personal estates of the debtor; and the
bar of the statute operates equally in both
cases.—Henry v. Smith, 4 J. E. R. 502; 2 Dr.
& War. 381; 1 Con. & L. 506. (C.)

5. A creditor who, in the regular stage of
the suit, proves his demand under the decree
in it, is entitled to consider that suit as having
been instituted for his benefit from the period
when it was so framed, as that the decree to
be pronounced in it would have authorised
him to prove his demand under it. If it were
so framed before the 3 & 4 W. 4, c. 27, his de-
mand is not affected by the operation of that
statute— Brown v. Lynch, 4 I. E.R. 316.
(E.E.)

6. When lands are sold subject to bond, or
other specialty debts, this Court presumes
that the money is to be applied in payment of
those debts; and that the sale is made with
that view. The purchaser will be discharged.
It is a different case when the parties are pur-
chasers under a settlement, having purchased
pendente lite: and the crditors are entitled to
follow the -lands in the hands of such pur-
chasers.—Higgins v. Shaw, 2 Dr. & War. 356;
1 Con. & L. 400. (C.)

7. In 1822, the plaintiff obtained an order
for a receiver, whose appointment was not
completed till 1834. The Court directed an
inquiry to ascertain by whose default it was
that the receiver had not been sooner ap-
pointed; and directed that, if the default was
the plaintiff’s, and if he might through such
appointment have kept down the interest on
his own demand, he should not now be entitled
to so much of that interest as would have been

 

[DEBTOR AND CREDITOR.] Favours Creditor.

paid by the receiver had he been appointed at
the earliest moment.—Newby v. Drew, 7 I. E.
R. 349; 1 Jon. & L. 445. (C.)

8. The doctrine that creditors, or parties
proving their demand under a decree, are en-
titled to consider the suit as theirs from the
commencement, so as to prevent the bar of the
Statute of Limitations, is not confined to suits
purporting to be on behalf of creditors gene-
rally, but extends to an ordinary mortgagee’s
suit for foreclosure and sale in favour of prior
creditors proving charges on the mortgaged
lands.

Although a suit be entirely abated by a sale,
ptf. assigning away his interest, or becoming
insolvent, it is nevertheless capable of being
continued so as to allow the benefit of it,
under this doctrine, to creditors proving
charges under a decree made in a suit seek-
ing the continuance and benefit of the abated
suit. When the original ptf. made, for the
benefit of creditors, an assignment by deed, of
which one trust was to continue the abated suit,
and original bills in the nature of bills of revi-
vor and supplement were filed by the trustee and
ac.q.t. of the deed, stating the deed, and pray-
ing the benefit of the abated suit, the receiver
appointed in which was continued; a decree
made and intituled in the new suits only, with-
out referring to the abated one, but reciting
among the evidence the proceedings therein.
Held, to be a decree such as entitled creditors
proving charges thereunder to the benefit of
the abated suit for this purpose.—Sennett v.
Bernard, 101. E. R. 584. (C.)

9. When specialty debts of a deceased per-
son have been paid out of his personal estate,
which was then sufficient to pay also his simple
contract debts; and the executor afterwards
commits a devastavit, which renders the perso-
nal estate insufficient to pay simple contract
creditors, they are entitled to be paid out of
the debtor’s real estates to the extent to which
the personal estate has been onerated by the
specialty creditors—Elard v, Cooper, 1 I. C.
R. 376; 31. Jur. 205. (C.)

 

I. 3. Creditors’ duties, §c.; respecting Costs.

10. A judgment creditor who has proved his
demand under the decree to account, and who
has been paid the sum decreed to be due to
him, is bound to execute a warrant of attor-
ney to satisfy the judgment tendered to him,
on behalf of the inheritor of the estate de-
creed to be sold. Lyre v. Lynch, 3 I. E. R.
194. (E.E.)

II. WHEN A CREDITOR MAY OR MAY NOT SUE
A Dexstor To THE ESTATE OF HIS DE-
CEASED TESTATOR.

11. A suit was instituted against A.and B.,
devisees of two incumbered estates, in which
a larger portion of the incumbrances was paid
out of A’s. estate than it was properly liable
to. The decree directed special accounts,
Creditors by

which were prosecuted to a draft report find-
ing £13,000 due to A. out of B.’s estate. A.,
by will, reciting this draft report, bequeathed
an interest in the £13,000 to the ptfs., and
more to his executor. The ptfs. filed a bill
against B., and those claiming through him,
and against the executor of A., praying the
benefit of the former decree, and to prosecute
the special accounts, and be paid their legacy.
Held, that neither the specific nature of the
legacy, nor the character of the debt, consti-
tuted any special case for taking the suit out
of the common rule that a debtor to the estate
cannot be sued by a legatee; and the suit
being to carry out a former decree, did not re-
move, but rather increased the objection.
Neither the insolvency of the executor, if
before his appointment as executor; nor his
embarrassments, if removed before the com-
mencement of the suit; nor the circumstance
of the debtor’s evading process and its being
difficult to recover from him, if the executor
has not refused to sue him; are grounds to
» warrant a legatee in suing a debtor to the
estate— Wright v. Hamilton, 9 I. E. R. 119;
3 Jon. & L. 465. (C.)

 

Ill. Crepitors spy SPECIALTY AND SIMPLE
ConTRACT: HOW CONSTITUTED: THEIR
Rieuts, &c.

1. Generally.
2. Under and with reference to statutes.
3. Charging order.

 

IU. 1. Creditors by Specialty and Simple Con-
tract: how constituted : their Rights, Sc. :
generally.

1. A judgment creditor, who has obtained a
receiver under the 5&6 W. 4, c? 55, is en-
titled in the Court of Exch. to a reference to
the Remembrancer to ascertain the amount
of costs properly incurred in appointing the
receiver, and to an order on him to pay that
amount out of the funds in his hands—the re-
ceiver to have credit for it when passing his
accounts.— Stanley y. Bond, 1 I. KE. R. 118.
(E.E.)

2. A judgment creditor who, after the co-
nuzor’s death, issues an elegit under which he
obtains a finding, but is prevented by a prior
creditor’s proceedings from obtaining posses-
sion, is not thereby debarred from resorting to
another remedy to recover his demand.

Quare—Whether a judgment creditor who,
after the conuzor’s death, proceeds by elegit,
and gets into possession of a moiety of his
debtor’s freehold property, and is not dis-
turbed in possession thereof, can abandon his
elegit proceedings, and file a bill in equity to
recover his demand by selling his debtor’s
freeholds ?

If the revival of a judgment be good against
the terretenants, it is equally so against all
persons not terretenants, or in possession, who
have remote or contingent interests in the
lands.—Ryan v. Cambie, 2 I. E. R. 328. (E.E.)

38. By marriage articles, the intended hus-
band covenanted with the trustees, that a sum

 

[DEBTOR AND CREDITOR.] Spl. § Sim. Con. 171

of money should be vested in them, and the
survivor of them, and the executors, &¢c., of
such survivor for ever, upon the trusts specified
in the articles. The marriage was celebrated,
The husband, with the assent of the trustees
obtained possession of the money. Held, in a
suit for the administration of the assets of the
husband, that the trustees were entitled to
rank as specialty creditors of the husband, in
respect of that sum of money.—Jameson v.
Farrer, 37. E.R. 346. (H.E.)

4. When an estate has been devised to
trustees to sell for payment of debts, and sub-
ject thereto for the younger children of the
testator; Semble—that a purchaser from them
will, in all cases, buy subject to the debts.
Garnett v. Armstrong, 2 Con. & L. 458; 51.
E. R. 583; 4 Dr. & War. 182. (C.)

5. A borrower, V., conveyed lands to the
lenders and their heirs, upon trust to sell, and
repay themselves ; and to pay the surplus and
reconvey the unsold lands to V. The lands
having been sold under a decree in a suit to
carry the trust into execution :—Held, that a
good title might, without the concurrence of
V.’s creditors, by judgment confessed after the
execution of the deed of trust, be made to the
purchaser.—A lexander v. Crosbie, 7 1. E. R. 445 ;
1 Jon. & L. 666. (C.)

6. Bankers having taken a joint and seve-
ral bond and warrant to confess judgment
from a firm of four traders, and two sureties,
to secure the balance that might at any time
be due from the firm to the Bank, not ex-
ceeding a certain amount, entered six separate
judgments under the warrant. The firm hay-
ing become bankrupt—Held, that the Bank
might prove for a balance due to them within
the amount covered by the bond and warrant
against the joint estate of the bankrupts.

[in re Clarkes, 71. E. R. 39; reversed on
appeal. ]—Jn re Clarkes, 81. E. R. 60; 2 Jon. &
L.2. (C.)

7. A leasehold farm, subject to a non-alien-
ation clause, was assigned to the testator in
consideration of paying arrears of rent due,
and an annuity to the vendor. The landlord
refused to accept the testator as tenant. He
was never in possession. He died leaving the
arrear due, and purported to devise the farm
to the ptf., who was in possession, it did not
appear how, and transferred his interest, as
valueless, to a person who was accepted as
tenant, and paid the arrears and annuity.
Held, that the devisee was not entitled to
claim the arrear against the testator’s assets,
the sale to the testator being a nullity, and
the arrears therefore never his debt; but,
Semble—If the landlord had accepted him, the
devisee would have been entitled.—Morres v.
M., 81. E. R. 825. (C.)

8. V., reciting that he was entitled to a
simple contract debt due to him by his sons,
A., B., C., D., who were partners in trade,
assigned it to A. and B. upon trust, if they
thought fit, to call it in; to invest it on good
172 Spl. & Sim. Con.

and solvent security; and to hold it upon
trusts. A. and B. sealed and delivered the
deed, and misapplied the moneys. Held, that
the breach of trust was a debt of A. and B. by
specialty, not binding their heirs. Cummins
y. C, 81 E.R. 723; 3 Jon. & L. 64. (C.)

1. The grantee of a rentcharge, secured by
a term for years and a judgment, is not enti-
tled to sell the lands discharged of a lease
made before suit, and after grant of the rent-
charge, unless it appear that the lands, if
sold subject to the lease, would not produce
enough to satisfy his demand, even though
it appears that they would not produce enough
to satisfy the incumbrances posterior to his
demand.—Stamer v. Nesbitt, 9 I. E. R. 96; 3
Jon. & L, 447. (C.)

2. A judgment creditor’s bill was filed in
1829. In 1830 the answers were filed; but no
further steps were taken until 1843, when
leave was obtained to file an original bill in
the nature of a bill of revivor. This leave
was given under the 58th Rule, the ptf.
having accounted for the delay between 1830
and 1839. The Court gave him no more costs
than he would have been entitled to if the
original bill had been filed in 1843; but gave
him interest.—Fuairtlough v. Ackland, 91. E. R.
251. (C.)

3. When specialty debts of a deceased per-
son have been paid out of his personal estate,
and at the time of such payment the personal
estate was sufiicient also to pay his simple con-
tract debts; and the executor subsequently
committed a devastavit, which rendered the
personal estate insufficient to pay the simple
contract creditors, they are entitled to be
paid out of the real estate of the debtor to
the extent to which the personal estate has
been onerated by the specialty creditors.

The dictum of Lord Clare, in Kearnan v.
Fitzsimon (3 Ridg. P. C. 16), that, “the rule
of marshalling assets holds only where it is
proper to be done at the death of the party
whose assets are to be marshalled, and can
never arise upon any subsequent fact or acci-
dent,” considered.

Simple contract creditors, who have, in
consequence of the payment of specialty cre-
ditors out of the personal estate of the
deceased debtor, acquired a right of mar-
shalling his real estate, are not barred under
the Statute of Limitations by the lapse of less
than twenty years.—Ellard v. Cooper, 1 I. C.
R. 376; 31. Jur. 205. (C.)

4. By deed, reciting A.’s title to several
real estates, and that on a general settlement
of accounts, under a deed of submission, and
an award made thereon, A. had been found
indebted to B. in a sum which was to bear
interest at £6 per cent., and that A. had
agreed to grant a rentcharge to pay off that
debt, A. conveyed those estates to C. for 100
years (if A.’s estate should so long continue),
in trust to pay the head-rents, and reimburse
C. all costs, &c.; and, in the next place, to pay
B. a rentcharge towards payment and satis-

[DEBTOR AND CREDITOR.]

 

Creditors.

:

faction of his debt ; and upon further trust to
pay the surplus of the rents to A., who cove-
nanted with C. to pay the rentcharge. The
deed also gave C. a power to distrain for the
rentcharge; and contained a clause of re-
entry, a covenant for further assurance, a
covenant to insure the life of the surviving
c.g. v. of one of the estates, for the benefit of
B.; and u proviso that the deed should not
prejudice securities which B. held, and which
were intended to be collateral; a clause of
cesser on payment of the debt, by perception
of the rentcharge, and a proviso for reduction
of the interest on the debt if the gales of the
rentcharge were paid within twenty-one days
after they fell due. Held, that the deed created
the relation of debtor and creditor, as well as
that of trustee and c. g. ¢., and therefore that
B., who had gone into possession, was charge-
able, in a redemption suit, with wilful default,
although no such case was made by the peti-
tion.

That B. was also chargeable with the wilful
default of a puisne incumbrancer, who went
into possession with his assent.—O’ Connell v.
O’ Callaghan, 15 I. C. R.31. (R.)

 

III. 2. Creditors, their rights, §c., under and with
reference to Statutes.

5. The 6 W. 4, c. 14, s. 126, which deprived
of preference in bankruptcy creditors who
have obtained against their debtors judgments
by confession, has not been repealed by the
3&4 Vic. v. 105.

Simple contract creditors are within the
proviso of 3 & 4 Vic., c. 105, s. 22, in favour
of “purchasers, mortgagees and creditors.”—
In re Perrin, 4 I. E. R. 89 (B.); on appeal, 2
Dr. & War. 147; 1 Con. & L. 567; 41. E.R.
362. (C.)

6. In 1834 P., a trader, passed his bond and
warrant of attorney, &c., to secure £450 to B.,
who entered judgment under the warrant as
of the following T. T. In 1839, B., having
duly revived, presented a petition under the 5
& 6 W.4, c. 55, for a receiver, and obtained a
conditional order, which was made absolute
on the 15th May. On the 27th May, a com-
mission of bankruptcy issued against P., whose
assignee moved tv remove the receiver, and
for payment of the rents. Held, that a judg-
ment creditor, having an order under that
Act for the appointment of a receiver, con-
tinues, nevertheless, to be a creditor having
security for his debt within the 6 W. 4, c. 14,
s. 126, until the rents have been paid to him
in satisfaction of his demand; that the ap-
pointment in this case, having been obtained
on a judgment on a warrant, &c., was there-
fore over-reached by the bankruptcy; that
the receiver should be removed.

Semble—The absolute order was the order
for appointing a receiver within the 5 & 6
W.A4, ¢. 55, s. 37—Baker v. Pettigrue, 2 I. E.
R. 144. (R.)

7. A creditor’s suit was begun before the 3
& 4 W. 4, c. 27, passed. Held, that that Act
did not affect the claim of a judgment cre-
Charging

ditor who afterwards came in and proved his
debt under the decree.

Secus—Had it been necessary to make a
special application, grounded upon a denial
of the creditor’s knowledge of the existence
of the suit, for leave to prove the debt.—
O’Kelly v. Bodkin, 21. E.R. 361. (E.E.)

1, A wife was entitled, during the joint lives
of herself and her husband to the interest of
stock, for her sole and separate use, with a
clause against anticipation, There were limi-
tations over of the principal in favour of her-
self and her husband. Upon petition by a
creditor, who had obtained a judgment against
the husband and wife, the Court, under the 38
& 4 Vic., c. 105, made an order charging the
stock, without prejudice to the wife’s right to
receive the interest during coverture.—Carter
y. Mahon, 41. E. R. 305; Fl. & K. 342. (R.)

2. The Court enlarged the Sheriff’s time for
making a return, when he had seized under a
Ji. fa. issued out of the Court of Chancery at
the suit of ptfs., who refused to indemnify him
against claims made by third parties to the
goods.— Bowyer v. Blair, Fl. & K. 385. (R.)

3. A judgment creditor cannot have a sale
as against other judgment creditors whose
judgments are prior to August 1840.

Semble—If his judgment affects alife estate,
and he has an equity to throw other incum-
brances on other estates, he cannot have the
latter sold to clear the life estate-—Edington v.
Bloomfield, 9 1. E.R. 115. (C.)

4. Whether the contest be between claimants
under different causes, or between the parties
to a suit and a judgment creditor who has
proceeded by petition under the Judgment
Acts; or between two judgment creditors;
one appointing and the other extending the
receiver under these Acts; arrears of rent,
due when the receiver was appointed under
those Acts, but received after, belong to the
judgment creditor— Abbott v. Stratten, 9 I. E.
R. 233; 3 Jon. & L. 609. (C.)

5. Semble—If a judgment creditor takes in
execution the person of his debtor before the
property charged under the 3 & 4 Vic., c. 105,
has been realised, he cannot afterwards main-
tain under sec. 22 a bill to sell that property
to pay his judgment.—Maguire v. O’ Reilly, 9 I.
E. R. 335; 3Jon. & L. 224. (C.)

6. The 10 Car. 1, c. 6 (Ir.)s. 10 (18 Eliz. ¢. 5,
£ng.) in favour of creditors, avoids only deeds
which would deprive them of such property as
they could make available without their debt-
or’s aid. Therefore, a settlement by a tenant
in tail in 1836, by which he opened and re-
settled his estate on himself for life, remainder
over, is not within it.

The solvency or insolvency of the debtor
affords no certain test whether a deed is void
under that Act; each case must be judged by
allits circumstances.

Section 87 of statute 6 W. 4, c. 14 (sec. 73
of the English Bankrupt Act, 6 G. 4, c. 16), is

[DEBTOR AND CREDITOR. |]

 

Order. 173

retrospective as to conveyances made before
the Act.

Semble—It is not so as to commissions be-
fore the Act.—Clements v. Eccles, 111. E. R.
229. (C.)—[See s.c. subsequently, 2 I. Jur.
286. (C.)]

7. The owner of a leasehold for years mort-
gaged it, and afterwards, in 1820, confessed a
judgment. In 1824, he acquired a freehold
estate in the same lands. Ina suit, pending
after the 3 & 4 Vic., c. 105, became law—Held,
that the freehold estate having been acquired
before that Act became law, the judgment
creditor had not any equity to prevent the
term, though an equity of redemption, being
merged as against him.—Smith v. Chichester,
121. E.R.519. (C.)

 

III. 3. Charging Order.

See 3 & 4 Vic., c. 105.

Sec. 23—Stock and shares in public funds
and public companies, belonging
to the debtor, and standing in
his own name, may be charged
by order of the Court of Chan-
cery.

Sec. 24—The order shall, in the first in-
stance, be made ex parte; and
shall, on notice to the bank or
company, operate as a distringas.

Like powers are given to the Courts of Law
by the C. L. P. Act (/r.) 1853, ss. 182, 133,
134, 135.

Power to attach, by garnishee order, debts
due to the judgment debtor, is given to the
Courts of Law by the C. L. P. Act, 1856, ss.
63 to 69.—See 23 & 24 Vic., v. 82, as to funds
in the L. E. Court.

8. A judgment creditor, seeking to have his
debt charged under the 3 & 4 Vie., c. 105, s.
23, upon a fund, impounded and standing in
the name of the Acct.-Gen. of the Court of
Ch., ought to present his petition to that
Court in the first instance. If he resorts to
a Court of Law for the charging order, he
must afterwards obtain from this Court liberty
for the Acct.-Gen. to act under it, so as to
prevent a clashing of jurisdiction. The Acct.-
Gen. of this Court has not any right to attend
to an order inconsistent with, or varying an
order of this Court, without its special direc-
tion so to do.—Gore v. G., 4 I. E. R. 164. (R.)

9. In a foreclosure suit there remained a
surplus after payment of the reported incum-
brances. The mortgagor being dead, a puisne
judgment creditor sought, under the 3 & 4
Vic., c. 105, ss, 23, 24, an order to charge, with
the amount of his judgment, that surplus,
which was the residue of the price of real
estate sold under the decree. Held, that that
surplus must be deemed either real estate be-
longing to the judgment debtor's heir-at-law,
or personalty belonging to his representative ;
and that the 3 & 4 Vic., c. 105, does not em-
power the Court to attach by charging order
a deceased debtor’s property in the hands of
his representative.
174 Charging.

Semble—It is very questionable whether the
8 & 4 Vic., c. 105, s. 23, extends to money.—
Wallace vy. M:Cann, 4 1. E. R. 522; Fl. & K.
570. (R.) [See Jd‘Allister v. Murray, 51. L.
R. 92.]

1. B., the younger son of a judgment
debtor, entitled to part of a charge on his
estates, died in 1792, having bequeathed the
charge to A., his brother. A. died in 1793,
leaving his father his next-of-kin, who died in
1800. A trustee for X., who was entitled to
another part of the charge, filed a bill in the
Exchequer in 1807. X. having taken admi-
nistration as in case of intestacy to B., the
report, finding B.’s charge due to him, found,
as an admission of the parties, that it belonged
to Y., a representative of a sister who was un-
truly stated to be B.’s next-of-kin. On X.’s
death Y. became B.’s administratrix. In
another suit in the Exchequer the sum was
reported due to her in 1834, she being then
also administratrix to the debtor. In 1822
B.’s will was proved, and administration cwn
test. an. granted to X.’s representative. Ina
suit to raise the amount of the judgment—
Held, that the balance of B.’s charge could
be attached as personal estate of the debtor,
the creditor not being bound by the Exche-
quer proceedings; but that, to make it avail-
able, accounts should be taken of the estates
of B. and A., against which the representative
of X. had claims; and that the Exchequer
proceedings did not bind X. and Y. to admit
there were no debts, &c., of A. and B.—Foster
v. M‘Mahon, 11 I. E. R. 287. (C.)

2. When a judgment creditor has obtained
a charging order on funds reported to a cre-
ditor in a cause, the Court, unless there is a
controversy touching the right to the fund
charged, will, without bill, direct that it shall
be paid to the petitioner—Fulton v. Farrant,
Blake v. French, 1 I. Jur. 66. (R.)

3. To obtain a charging order under the
3&4 Vic., c. 105, s. 28, it is not necessary that
the judgment should be revived. The Court
granted the order on the petition of the hus-
band and wife, on a judgment recovered by
the wife dum sola, without its having been re-
vived.—Irwin v. Nesbit, 13 I. E. R. 125. (R.)

4, Although the exact amount of a share to
which a party is entitled in government stock,
standing in the name of trustees, or in the
books of the Accountant-General, to the credit
of a cause, is unascertained, yet, if it be ascer-
tained by the decree of the Court that such
party is entitled to a portion of such stock,
the share of such party is capable of being
charged under the 3 & 4 Vic., c. 105, ss. 23 &
24.—White v. O’ Grady, 2 I. C. R. 333. (R.)

5. A., a judgment debtor of B., was entitled
to an annuity payable by C., who drew a cheque
in A.’s favour for a gale of the annuity, and
wrote to B. that the cheque was in his (C.’s)
hands.—Held, that this cheque could not be
attached under the 3&4 Vic., c. 105, 8.20. Ex
p. Smythe, in re Cottrell, 51. Jur. 41. (R.)

[DEBTOR AND CREDITOR.]

 

Order.

6. An equitable mortgagee, by deposit of
railway shares, is entitled to priority over a
prior judgment creditor of the mortgagor,
who, after the mortgage, obtained an order
charging the shares under the 3 & 4 Vic., ¢.
105, s. 23.

Quere—Does the doctrine of Dearle v. Hall,
3 Russ. 1, apply to an equitable assignment of
railway shares?—Duanster v. Glengall, 3 I. C. R.
47; 51. Jur. 337. (R.) ‘

7. R., claiming a charge upon the lands of
L., took the benefit of the Insolvent Debtors
Act. R. afterwards made several applications
to the Insolvent Debtors Court to have his
petition dismissed. Those applications were
founded on affidavits which stated his inten-
tion to apply all his property for the benefit
of his creditors. Eventually the order dis-
missing the petition was made on the consent
of the assignee of R., and not in any way re-
ferring to the affidavits. The lands of L.
were sold in the I. E. Court; but the creditors
of R. did not take any steps to realise the
amount of R.’s claim out of the proceeds of
that sale. R. afterwards assigned his claim
for a sum of money to H., who had not notice
of the statements in R.’s affidavits, though he
had of the pendency of the insolvency pro-
ceedings.—Held, that he could not be treated
as constructively a trustee for R.’s creditor’s.

The amount paid by H. for R.’s claims was
completely inadequate. Some of R.’s cre-
ditors obtained charging orders against his
claims on the proceeds of the lands of L.—
Held, that the creditors who had obtained
charging orders were, under the Statute of
Fraudulent Conveyances, entitled to avoid the
assignment to H., and that at the utmost it
could only stand as a security for so much as
had been actually paid by him.—Roche v. Has-
sard, 51.C.R. 14; 11. Jur. N.S. 246. (C.)

8. Funds in Court in an administration suit
were decreed to be paid to A. as “adminis-
trator of his late wife.” The Master’s report
had not been made up showing what amount
was payable to A., or whether he was entitled
to any sum in his own right. B., a judgment
creditor of A., sought a charging order under
the 8&4 Vic., c. 105, ss. 238, 24, upon the
funds in Court to the credit of the suit; or
whatever portion thereof A. should be enti-
tled to.— Held, that A. had not such an interest
in the funds in Court as that they could be
charged by such an order.

The funds were directed to be impounded
in Court for fourteen days, in order to give
B. an opportunity of filing a cause petition to
establish his right—Burns v. Owen, 6 I. Jur.
192. (R.)

9. The order made by a Court of Law under
ss. 182, 183, 184, & 185 of the C. L. P. Act
Cr.), 1858, to attach stock standing to the
credit of a debtor in a cause in the Court of
Ch., does not, per se, operate as a seizure of or
a charge on the stock. Semble—The lodging
of such an order with the Accountant-General
without obtaining an order of the Court of
Chancery does not charge the stock.
Order. [DEBTOR AND

Semble—That a conditional order does not
attach the fund under the Common Law Pro-
cedure Act.

A conditional order to charge funds in
Chancery was obtained in a Law Court under
the C. L. P. Act, on the 30th June; made ab-
solute on the 8th August; and lodged with
the Accountant-General on the 14th Nov. A
conditional order to charge the same fund
was obtained in Chancery by another creditor,
under the 3 &4 Vic.,c. 105, on the Ist August ;
lodged with the Accountant-General on the 7th
August, and made absolute on the 13th Nov.
following —Held, that the creditor who had
obtained the order in Chancery was entitled
to the fund in priority to the other creditor.—
French v. Balfe, 61. C. R. 63; 2 I. Jur. N.S.
299. (R.)

1. I, having a charge upon land, died
under age, unmarried, and intestate, leaving
her father, P., her sole next-of-kin. P., before
her death, had been discharged under the
Insolvent Act. C., a son of P., took out ad-
ministration to I. The amount of the charge
was realised in the I. E. Court, and paid into
the Court of Chancery, where it was trans-
ferred to the Acct.-Gen.’s books to the se-
parate credit of the administrator of I. Held,
that P. had an interest in that. fund which
could be attached by a charging order.—
Brownrigg v. Colclough, 7 I. C.R. 524. (C.)—
[Affirmed, ibid, 528. (C.A.)]—See 31. Jur.
N.S. 329.

2. Semble, per Lord Justice of Appeal—That
the administrator of I. could not rely on the
Insolvency as an objection to the charging
order.—Brownrigg v. Colclough, 7 I. C. R. 524;
31 Jur. N. 8. 329.

8. The Court of Ch. has not jurisdiction
under the 3 & 4 Vic., v. 105, ss. 23 & 24, to
make « charging order against cash stand-
ing to the credit of the suitors’ fee fund,
and ordered to be paid to a judgment debtor
on account of his pension as a retired re-
gistrar of the Court.

Semble—Such a pension, though paid out
of the Consolidated Fund, if the suitors’
fee fund proves insufficient, is not a govern-
ment annuity within the meaning of the Act.
— Quin v. O’ Keeffe, 91. C. R. 331; 4 1. Jur. N.
S. 167. (R.)

4. A retired officer of the Court of Ch. was
entitled to a pension, charged upon the suitors’
fee fund under the Ch. Reg. Act, s. 1385. A
quarterly instalment having become due,
a judgment creditor obtained a charging
order in the Court of Q. B. [101 C. L. R.
363], under the C. L. P. Act, 1853, against
that instalment. Held, that the Court of
Ch. had not jurisdiction to enforce that order.

Semble—The instalment was not liable to
be attached under the C. L. P. Act, 1853,
not being money in Court in a suit or matter
under the ordinary jurisdiction of the Court.
—Quin v. O'Keeffe, 10 I. C. R. 151; 51. Jur.
N.S. 65. (C.)

[This decision was appealed against, but

 

CREDITOR.] Payments. 175

on argument the case was compromised.—
10 I. C. R. 262. (C.A.)]

IV. PayMEnrs: HOW TO BE APPLIED, &C.

5. A creditor who, by lving by, permits the
executor, having at the time assets for pay-
ment of debts, to pay a legacy, does not
thereby lose his right to compel that legatee
to contribute to the payment of his debt, if
the executor subsequently waste the assets.
The assets of the defaulting executor must
be first resorted to. The insolvency of the
executor not having been proved; Held, that
the legatee was entitled to an inquiry upon
the point, even after a decree to account, and
a report under it— Mannix y. Drinan, 3 I. E.
R. 108. (C.)

6. The grantee of an annuity for two lives
held, as a further security, a policy of in-
surance on the life of one of the grantors.
The life dropped, and the annuitant was paid
the sum secured by the insurance. The an-
nuity being in arrear, a bill was filed to raise
the arrears. Held, that the surviving grantor
was not entitled to credit for the amount
of the policy as against the arrears of the
annuity.—Milliken v. Kidd, 5 I. E. R. 396;
2 Con. & L. 442. (C.)

7. Semble—The rule requiring purchasers
of property to see to the application of the
purchase-money, does not apply to the case
of debtors, so as to implicate them in trusts
created by their creditors.—Fernie v. Maguire,
61. E.R. 1387. (R.)

8. When a creditor, who has obtained a
report and allocation order in the cause,
dies, the funds reported to him may be al-
located to his executor without any special
order or variation of the allocation order.—
Roberts v. Hughes, 6 I. E. R. 306. (R.)

9. The Court having, at the respondent’s
instance, restrained the petitioner from pro-
ceeding on the order for a receiver, the respt.
undertaking to pay him a certain annual sum,
the petitioner is not entitled to appropriate
the moneys paid to him pursuant to that
order in discharge of interest due more than
six years before the conditional order was
oe v. Burke, 2 Jon. & L. 665.

)

10. A husband covenanted to insure his life
for £1200, and assign the policy to trustees
and confessed to them a judgment of equal
amount, which was to be called in if the
policy was not kept up. Another sum of
£800, included in the settlement, was lent
by the trustees to the husband on the se-
curity of a policy to that amount on his life.
No other policy was assigned, nor any steps
taken to enforce the judgment and covenant.
Held, that the proceeds of the policy were not
necessarily to be considered as obtained in
pursuance of the husband’s obligation; and
that the trustees’ liability for not compelling
176 Fraudulent

payment depended upon the husband’s ability
to pay.—Ball v. B., 11 I. E. R. 370. (C.)

1. A. had against B. a claim for an ap-
portionment of a gale of rent allocated and
paid to B. by the receiver in the cause. In
another cause A. and B. were entitled to por-
tions of the interest on a mortgage. Pending
the latter suit, B. assigned his claim to C.
In it sums were allocated to A. and C. in
respect of their claims. :

On motion by A. the Court refused to
pay the claim for apportionment out of the
sum allocated to C.—Russell v. Barrington,
Barrington v. Grady, Bannantyne v. Barrington,
161.C.R.175. (R.)

 

V. APPROPRIATION OF FUNDS, NOT BEING
Payments on Account or Dests.

2. A solicitor, transacting business for his
client, and having at the same time a judg-
ment against him bearing interest,—the client
having made general payments from time to
time,— was held justified in applying those
payments to his account for costs accruing
due, although the interest on the judgment was
accumulating contemporaneously.—D’Arcy v.
Burke, 21. E.R.1. (C.)

 

VI. Fraup on Crepitors.

1. bai bila of one over another.
2. Voluntary settlements, conveyances, §c.
a. When valid as against creditors.
b. When fraudulent and void, as against
creditors.

 

VI. 1. Fraudulent Preference of one Creditor

over another.

3. In order to constitute a fraudulent pre-
ference it is not sufficient that a payment or
security was voluntary, and made at a time
when the trader was in insolvent circumstan-
ces. It is necessary to show that it was made
in contemplation of bankruptcy.

A judgment obtained against a bankrupt,
and registered as a mortgage, before the
issuing of the commission, is a charge on
the bankrupt’s lands, in priority to his simple
contract debts.

The 13 & 14 Vic., c. 29, repeals the 6 W. 4,
c. 14, s. 126, the I. Bankrupt Act.

Quere—Whether an affidavit made by one
only of several conuzees is a sufficient com-
pliance with the terms of sec. 6.—In re Ryan,
31.C.R. 33. (B.)

4. By a deed between A. and judgment
creditors of his, who had issued execution
against his person, A.’s life interest in certain
funds (less in amount than their demands)
was assigned, upon trust for A. himself until
he should become bankrupt or insolvent, or
should attempt to assign his interest, or until
any creditor of his should do any att for the
purpose of having the dividends or interest of
the funds applied in satisfaction of his parti-
cular debt; but in any of such events, on
trusts for the benefit of the creditors. B.,a

[DEBTOR AND CREDITOR.]

 

Preference.

judgment creditor of A., who was not a party
to this arrangement, afterwards obtained a
charging order under the 3 & 4 Vic., c. 105,
ss. 23 & 24, on A.’s interest in the funds in
question; and then filed a cause petition
praying that the above proviso for determining
A.’s life interest might be declared void as
against B. Held, that this proviso was in its
nature fraudulent and void as against B.—
Synge v. S., 41. C. R. 837; 71. Jur. 271. (C.)

5. R., claiming a charge upon the lands of
L., took the benefit of the Insolvent Debtors
Act. R. afterwards made several applications
to the Insolvent Debtors Court to have his
petition dismissed. Those applications were
founded on affidavits which stated his inten-
tion to apply all his property for the benefit
of his creditors. Eventually an order dismis-
sing the petition was made on consent of R.’s
assignee, and not in any way referring to the
affidavits. L. was sold in the I. E. Court;
but the creditors of R. did not take any steps
to realise the amount of R.’s claims out of the
proceeds of that sale. R. afterwards assigned
his claims for money to H., who had not notice
of the statements in R.’s affidavits, though he
had of the pendency of the insolvent proceed-
ings. Held, that he could not be treated as
constructively a trustee for R.’s creditors.

The amount paid by H. for R.’s claims was
completely inadequate. Some of R.’s creditors
obtained charging orders against his claims
on the proceeds of L. Held, that the creditors
who had obtained charging orders were, under
the Statute of Fraudulent Conveyances, en-
titled to avoid the assignment to H., and that
at the utmost it could only stand as a security
for so much as had been actually paid by him.
—Roche v. Hassard, 5 1. C. R. 14; 11. Jur. N.
8. 246. (C.)

6. D., a solicitor, on « summary petition
presented against him, had been ordered by
the M. R. to pay a sum alleged to have been
lost through his misconduct. This order was
reversed by the Lord Chancellor on appeal.
Shortly afterwards a cause petition was pre-
sented, praying relief on foot of the transac-
tions which had formed the subject of the
summary application. On the 16th June 1854,
the Court decreed that D. should pay £400 to
the petitioner. On the 7th Jan. 1854, D.
assigned some real estate, sums due to him
for costs, and a policy of insurance on his
own life, to his son N. on trust, subject to the
payment thereout of scheduled creditors, for
the absolute benefit of N. The petitioner, on
the 10th July 1854, registered the decretal
order; afterwards issued a writ of ji. fa. un-
der it against the goods of D.; and then filed
a petition, praying that the deed of 7th Jan.
1854 might be declared fraudulent and void
as against the petitioner. Held, that the po-
licy of insurance was not such a “ security for
money” as could be seized by the Sheriff
under 3 & 4 Vic., c. 105, s. 20.

That the real estate not being affected by
the mere registration of the decree, and the
choses an action not being capable of seizure
under the fi. fa., no occasion appeared for the
Voluntary

interference of this Court in aid of the execu-
tion, assuming that the petitioner’s redress
wasgto be sought in this Court, and not ina
Court of Law.

And. that, no sequestration having been
issued, the fact of the execution being from
this Court made no difference in the jurisdic-
tion. — Alleyne v. Darcy, 5 I. C. R. 56. (C.)

1. A bank was indorsee of bills, on which a,
trader had forged acceptances; the trader, in
contemplation of bankruptcy, took up the
bills, without pressure on him being made
by the bank. The trader became bankrupt.
Held, that the payment to the bank was a
fraudulent preference.—In re ; Ex parte
Hibernian Banking Co., 14 1. C. RB. 118. (C.A.)

 

2. A. and B. were sureties for C., the high
constable of a barony, who was a defaulter.
D. paid the amount due by C. at the request
of the parties, but more particularly of A.,
and took a joint and several bond, with war-
rant to confess one or more judgments. A
separate judgment was entered against A.
Held, there being no evidence of fraud or col-
lusion, that A.’s estate was liable to the whole
amount of the debt, although D. had not for
two years entered up judgment against B. and
C.—In re Clutterbuck, 5 I. C. R. 818. (P.C.)

 

VI. 2. Voluntary Settlements, Conveyances, Sc.
a. When valid as against creditors.
b. When fraudulent and void as
against creditors.
As to Voluntary Conveyances. See also DEEDS
AND Converances, III.
As to Fraudulent Conveyances. See also DEEDS, V

 

VI. 2. a. Voluntary Settlements, &c., when valid
as against Creditors.

3. A. being entitled to lands in fee, granted
annuities thereont to B., to secure the pay-
ment of debts due by him to B. A. subse-
quently agreed to sell the lands to C., in order
to redeem with the purchase-money a lease-
hold interest then under eviction, representing
to him that B. would join in the conveyance;
A. executed the conveyance to C., but he
refused to allow A. to get the purchase-
money till B. would discharge the lands of
the annuities, which B. refused to do unless
he was paid off. A. subsequently sold the
lands to B., who had notice of all the trans-
actions. Held, that C. could not impeach
the consideration given for the annuities—
Leader v. Ahearne, 2 Con. & L. 584. (C.)

4. A., on the marriage of his son B., settled
estates, of one of which he had been, but was
not then in possession, and as to which he
was then engaged in litigation, and to which
he was ultimately declared not to be entitled.
By the settlement, he covenanted generally
with F., the lady’s father, for title to all the
lands; and he and B. entered into, with the
trustees, covenants for title and quiet posses-
sion, notwithstanding any acts done by A. or
B. The settlement provided that if A. should

[DEBTOR AND CREDITOR.]

 

Settlements. 177

purchase the head-rents and inheritance of
any of the settled estates which were held for
lives, that his purchase should be subject to
the trusts of the settlement, but that he
should have power to charge with the pur-
chase-money the estate so purchased. A. did
so purchase, and charged the estate with the
purchase-money in favour of his daughter D.,
without consideration. Held, that this ap-
pointment was as valid against general cre-
ditors as the settlement of any other part of
his property would have been, and would
therefore prevail against them, unless A. had
been indebted to the extent of insolvency at
the time, and that the parties claiming under
the settlement, in respect of the breach of the
covenants therein contained, were general
creditors— Martyn v. Macnamara, 2 Con. &
L. 541. (C.)

5. Upon a bill filed to impeach a voluntary
settlement as void against creditors, the plain-
tiff proved the existence of but one debt, of
small amount, at the date of the settlement.
There were no circumstances to induce the
Court to suspect that the settlor was at that
time largely indebted. An inquiry as to the
amount of his debts at that period was re-
fused. Manders v. M., 4 I. E. R. 484. (E.E.)

6. J., being seized in fee of estates in T. and
L., and seized for life of estates in K., with
remainder to his son W. in tail, who had also
an equitable title to have a portion of the
estates in T. settled to the same uses as the
estates in K., and claimed a lien under certain
deeds on the rest of the estates in T. and the
estates in L., by deed reciting that J. was
entitled to the estates in T. and L. in fee,
to the estates in K., for life with remainder
to his son W. in tail, subject to charges and
trusts, and reciting the embarrassment of J.,
and that advances had been made and others
were intended to be made by D. to pay debts,
J. and W. conveyed all the estates in T., L.,
and K. to a trustee in trust to receive the
rents, and thereout to pay D. the sum so ad-
vanced, and such sum as he should thereafter
advance for J. and W., or either of them, or
for payment of incumbrances ; and on further
trust at the request of D. to raise by sale or
mortgage of the lands, or a sufficient part of
them, such sums as might be necessary to pay
off D. all sums already advanced or to be
advanced by him in discharge of incumbran-
ces; and after payment of the incumbrances,
upon further trust that the residue of the
rents should be subject to such annuity for J.
as D. should appoint; and that the overplus,
after paying incumbrances and such annuity
as D. should so appoint, should form a fund
to make up £30,000 for younger children’s
portions: and upon further trust after the
death of J., and so soon as the incumbrances
should be paid and the £30,000 raised, for W.,
the son, in fee: proviso, that the lands should
be, in the first instance, charged with an
annuity for W. during the life of his father J. ;
proviso, empowering D. to restrict the raising
of the £30,000; proviso, that nothing therein
should invalidate the securities then or there-

23
178 Vol. Settlements. [DEBTOR AND CREDITOR.]

after to be vested in D., but that he should
stand in respect of all his advances in the
same priority as the incumbrances paid by
him. Held, that there was sufficient considera-
tion for the deed, and that it was not void as
against a creditor of the father, under the 10
Car.1, s. 2, c. 8, Ir. (18 Eliz. c. 5, Eng.), as
containing a power of revocation, or as in-
tended to delay creditors.

Semble—The Court may look to other con-
siderations besides that stated in the deed.

A case of coercion, misrepresentation, and
intended fraud to impeach this deed; Held,
not sustainable under the circumstances.—
Myers v. Leinster, 71. E. R. 146. (C.)

1. A. and B., brothers, were entitled as ten-
ants in common to mill premises worth £7500,
one-third only of which was the share of B.,
who owed A. many thousands of pounds. B.
by deed assigned his share to A. in considera-
tion of £50 in cash, and the release of a debt
of £300. By deed, dated one month later, A.,
in consideration of love and affection to B.,
his wife, and children, assigned all the mill
premises in trust to pay an annuity of £150
a-year for the benefit of B. and his wife and
children. These deeds were prepared by the
trustee, a solicitor, who deposed that they
were one transaction, and that part of the
consideration for the first deed (executed only
two days before the date of the second) was
the annuity granted by the second deed.

Semble—The evidence was not sufficient to
prove a valuable consideration for the second
deed.

To support, against creditors, a deed vo-
luntary on its face, the proof of valuable
consideration must be clear and free from
suspicion.

At the date of the second deed (4th May
1853), A. owed £2584, and had property to the
value of £3000. There was not any evidence
of an intention to defraud subsequent credi-
tors. He became bankrupt in 1860. Held,
that the deed, though voluntary, was not void
against his creditors under the 13 Eliz., c. 5
(10 Car. 1, sess. 2. c. 3. Ir.)— Graham v.O’ Keeffe,
16IC.R.1. (8)

2. The trustees of a deed of arrangement,
under the Bankruptcy Act 1861, were author-
ised thereby to employ the debtor or any other
person in winding-up his business, and realis-
ing the property comprised in the deed; and
to pay such person a salary. Held, that this
clause did not invalidate the deed against a
ereditor who did not assent thereto.

A statement in the debtor’s affidavit lodged
with the Registrar of the Court of Bankruptcy
in England, that the amount in value of his

roperty, credits, estate, and effects comprised
in a deed of arrangement is under a certain
sum; sufficiently complies with the Bank-
ruptey Act 1861, sec. 192, condition 5.— Russell
y. Murphy, 161. C. R. 54. (R.)

 

VI. 2. b. When fraudulent and void as against
Creditors.

3. R., being indebted to A. by specialty and

Compounding.

simple contract, and being sued in equity for
the amount, executed in 1816 a deed purport-
ing to convey to his daughter, W., and_ her
heirs, real estates. In 1817, A. obtdfned
against R., a decree for payment of his debt,
and thereupon issued a sequestration. The
sequestrators entered into possession of the
lands comprised in that deed, and so continued
until R.’s death in 1834.

In 1826, W. sold and conveyed the lands to
B., who had notice of the circumstances under
which the deed of 1816 had been executed.
After the passing of the 3 & 4 W.4, v. 104, R.
died. Held, that the deed of 1816 was void
for actual fraud; that R. died seized of the
lands comprised therein; and that they were
assets for payment of his simple contract
debts.—Bernard v. O’ Connor, 2 Jon. 654. (E.E.)

4, Semble—That in the voluntary assign-
ment of a chose in action, the grant of a
power of attorney to the assignee will be
regarded by the Court as evidencing the
completeness of the agreement.—Bi y Ve
Brady, 2 Dr. & Wal. 311. (C.)

5. A trader, who had previously taken the
benefit of the Insolvent Act, three days after
entering into partnership with another, con-
veyed, by a voluntary deed, all his property to
trustees in trust for himself for life, or until
bankruptcy or insolvency, &c. ; and afterwards
in trust for his wife and children. When this
deed was executed he was in debt, but not to
the extent of insolvency. Six years after-
wards he became bankrupt. In a suit by the
assignees in bankruptcy—Held, that the deed
was void under the 10 Car. 1, sess. 2, c. 3 (Ir),
(13 Eliz., c. 5, Eng.)—Murphy vy. Abraham, 15
LC. R.371. (R.)

VII. Compounpine: Composition DEEps.

1. Generally.
2. Underhand agreements ; their effects.

(See also Banxruptoy, XI, 6.)

 

VII. 1. Generally.

6. When a debtor executes a deed of trust
for his creditors’ benefit, it is not indispensable
that every creditor, seeking the benefits to be
derived thereunder, should actually subscribe
the deed; but the Court, before permitting a
non-subscribing .creditor to take a benefit
under the deed, must see that he has performed
all its fair conditions. If he has taken any
steps inconsistent with its provisions, he will
be deprived of all advantages resulting from
it.—Field v. Lord Donoughmore, 1 Dr. & War.
227. (C.)—[Revg. 2 Dr. & Wal. 630. (C.)]

7. From the circumstances attending the
signature of a letter of license, it may be in-
ferred that it was not a binding concluded
agreement upon the person signing it; e. 9.,
when it was only in the course of signature
generally by the creditors, and was not in-

 
Compn.

tended to operate unless signed by an over-
powering body of creditors, which event did
not happen. A jury having found that a
letter of license, executed under such circum-
_ stances, was not a concluded binding agree-
ment—The Ld. Ch. refused to disturb their
verdict.—In re Semple, 3 Jon. & L. 488. (C.)—
[See In re Semple, 12 I. E. R. 838. (C.)]

1, When a party creates a trust to pay debts
by a deed to which none of the creditors are
parties, no creditor has power to call on the
Court to enforce the execution of the trust.—
LaTouche v. Earl of Lucan, 7 Cl. & F. 772; 2
Dr. & Wal. 432.—[Revg. the decision below,
2 Dr. & Wal. 276. (C.)]

2. When « party by deed creates a trust to
pay debts, and the deed is executed by some
of the creditors, the estates thereby conveyed
become so bound by the trust that the Court
will executg it at the suit of a creditor who
has not signed the deed, provided he has not
repudiated it by his acts ; but has, on the con-
trary, acquiesced in it.—Field v. The Earl of
Donoughmore, 1 Dr. & War. 227. _(C.)—[Revg.
Lord Plunket’s decree, 2 Dr. & Wal. 630. (C.)]

3. A., tenant for life, with remainder to B.,
conveyed the lands to trustees, in trust to sell,
and pay debts, and then to other uses. Held,
that the creditors, not being parties, A. and B.
could revoke the uses without any power of
revocation Browne v. Cavendish, 7 I. E. R.
369; 1 Jon. & L. 606. (C.)

4, The plaintiff was attorney for T. and H.
in two actions, brought by them against G. and
his son. P. owed £3000 to another son of G.
The actions were compromised on the terms
mentioned in the following deed. The deed
recited that, for P.’s accommodation, it was
agreed that T. and H. should accept £1000 in
full for their demand, with the costs of the
actions; and that P. should set off the £1000
against so much of the £3000 debt; and that
T. and H. should accept a security for the
£1000 on estates in Tipperary of another
member of the G. family, who was indebted to
P., and a collateral security by mortgage of
P.’s own property ; and that P. should pay T.’s
and H.’s costs of the actions, amounting to
about £400, and that the same should be
secured by his bills, and collaterally by the last-
mentioned mortgage. It recited mortgages of
the Tipperary property for £1000 to X. in
trust for T. and H., and of P.’s property for
£1400 to H., and that the £1400 secured by
the latter was intended as a further security
for the sum secured by the mortgage to X.,
and for the costs of T. and IL., and of getting
X.’s mortgage executed; and it was declared
that H. should be possessed of the £1400, on
trust—first, to better secure the £1000 to X.;
secondly, to secure to the plaintiff, described
as “E. S., gentleman, attorney for the plain-
tiffs in said actions,” the costs of them; £100
to be paid in three months, and the rest after
taxation; and thirdly, the expense of execu-
ting X.’s mortgage. The plaintiff was not a

[DEBTOR AND CREDITOR.]

Deeds. 179

d did not execute the deed. P.
gave a promissory note to T. and H. for £100,
which they indorsed to the plaintiff, and which
P. paid. The rest of the costs not being paid,
the plaintiff filed the bill to recover them by
enforcing the trusts of the deed. Held, that
he was not uc. q. ¢, and could not sustain
such a bill.

The cases to which the doctrines of Garrard
vy. Lord Lauderdale (2 R. & M.) and Ellison v.
E. (6 Ves.) are respectively applicable, defined
and distinguished.— Simmonds v. Pallas, 8 I. E.
R. 335; 2 Jon. & L. 489. (C.)

5. B., a creditor, signed a letter of license to
S., which would suspend his debt ; but verbally
stipulated that he would not be bound unless
all S.’s creditors signed. Several did not sign.
A commission of bankruptcy being sued out
by B., an issue was directed to try whether the
letter was binding on him. The jury found it
was not, but that the condition annexed to his
signature was not communicated to other
creditors who signed when and after he signed,
and the Court refused to supersede the com-
mission. Held, that, without deciding whether
the parol evidence was properly received, the
order was conclusive against another petition
to supersede on the same grounds; and, Held,
on a re-hearing, that the order was correct.

Distinction between a composition deed
and a letter of license, as to the necessity of
all creditors concurring.

At a meeting of S.’s creditors it appeared
doubtful whether he was atrader. A solicitor,
who was a creditor and concerned for another,
but not of sufficient amount to support a
commission, insisted that S. was a trader, and
guaranteed B., another creditor, against costs,
if he would allow him to use B.’s name as
petitioning creditor. Held, that, though such
an arrangement was improper and against the
policy of the bankrupt laws, the Court should
not, three years after, supersede the commis-
sion on the petition of S., he having used its
protection and failed in impeaching it on other
grounds; or on the petition of a creditor, it
appearing that bankruptcy was inevitable, and
the commission had been bona fide worked.
Special order made as to the sale of mort-
gaged property, the subject of a suit in which
the mortgage was impeached, the mortgagee
desiring to bid at the sale-—Jn re Semple, 12 I.
E. R. 338. (C.)—[See In re Semple, 3 Jon. &
L. 488. (C.)]

party to an

6. A joint-stock banking company, Held
bound by a trust deed for the benefit of
creditors, from the conduct of their public
officer and others in assenting to it, though
neither the company or directors had given
any authority to execute it, and the arrange-
ment was an improvident one for them; and,
Semble, the rule requiring an authority under
seal from a partner to execute deeds does not
apply to such a case.

A credifor’s deed contained a proviso that
if the assignment thereby made should for any
reason become inoperative; or any of the
property thereby conveyed, or intended so to
‘be, should not have been ,effectually assigned

 
180 Rights of

thereby, the parties might abandon it. The
deed was an act of bankruptcy under the 6 W.
4, uv. 14,8. 20. No notice was given as required
by that section, and an attempted sale in
execution of the trusts failed from inability of
the trustees to make out title. Held, that it
could not be avoided under the proviso, as that
contemplated an act by some stranger there-
after, and not a defect inherent in the deed
oe y. O'Connell, 12 I. E. R. 566.
)

1. A judgment debtor entered into an ar-
rangement to secure to his creditors 6s. 8d. in
the pound, and for this purpose executed a
mortgage of certain premises, which eventually
were insufficient to pay more than 2s. in the
pound. Held, that the judgment creditors
could not resort to the security of the judg-
ment.—In re Read, 61. Jur. 350. (L.E.C.)

2. The trustees of a deed of arrangement
under the Bankruptcy Act, 1861, were autho-
rised thereby to employ the debtor or any
other person in winding-up his business, and
realising the property comprised in the deed;
and to pay such person a salary. Held, that
this clause did not invalidate the deed against
a creditor who did not assent thereto,

A statement in the debtor’s affidavit lodged
with the Registrar of the Court of Bankruptcy
in England—that the amount in value of his
property, credits, estate, and effects, comprised
in a deed of arrangement, is under a certain
sum—snufficiently complies with the Bank-
ruptcy Act, 1861, sec. 192. condition 5.—
Russell v. Murphy, 16 1. C. R. 54. (R.)

 

VII. 2. Underhand Agreements; their Effects.
See also Dr. anv Cr. VI, anp Deeps, &c., VI.

3. Securities obtained from the plaintiff, as
a compromise of doubtful rights, but under
the threat and apprehension of arrest, and
without adequate consideration or advice, set
aside.—Scott v. S., 111. E. R. 74. (C.)}-[See
4H. L. Cas. 1065. See Scott v. S., 11 IE. R.
487. (C.)]

4. By a deed between A. and judgment
creditors of his who had issued executions
against his person, A.’s life interest in certain
funds (Jess in amount than the demands of the
creditors) was assigned upon trust for A. him-
self, until he should become bankrupt or
insolvent, or should attempt to assign his
interest, or until any creditor of his should do
any act for the purpose of having the divi-
dends or interest of the funds applied in satis-
faction of his particular debt. In any of
such events, on trusts for the benefit of the
creditors. B., a judgment creditor of A., and
not a party to this arrangement, afterwards
obtained a charging order, under 3 & 4 Vic.,
c. 105, ss. 23, 24, on A.’s interest in the funds
in question; and then filed a cause petition,
praying that the above proviso for determining
A.’s life interest might be declared void as
against B. Held, that this proviso was, in its
nature, fraudulent, and void as against B.—
Synge v. S., 41. C. R. 837. (C.)

(DEBTOR AND CREDITOR.]

 

Priority.

VIII. Ricuts or, aND Priority BETWEEN
DIFFERENT CREDITORS.

5. Two judgments, for like penal sums, and
against the same defendant, were obtained by
different persons on the same day, and in the
same Court. The sum reported due on foot of
one judgment was greater than that on the
other; the fund was insufficient to pay both.
Held, that the fund should be divided between
the creditors in proportion to the sums re-
ported due to them.— Woods v. Davis, 2 Jon.
815. (E.E.)

6. In 1834, P., a trader, passed his bond and
warrant, &c., to secure £450 to B., who entered
judgment under the warrant as of the follow-
ing T.T. In 1839, B., having duly revived,
presented a petition under the 5 & 6 W. 4, c.
55, for a receiver; and obtained a conditional
order, which was made absolute on the 15th
May. On the 17th May a commission of bank-
ruptcy issued against P., whose assignee moved
to remove the receiver, and for®payment of
the rents. Held, that a judgment creditor,
having an order under the 5 & 6 W.4, e. 55, s.
37, for the appointment of w receiver, con-
tinues, nevertheless, to bé a creditor having
security for his debt, within the 6 W. 4, c. 14,
s. 126, until the rents have been paid to him
in satisfaction of his demand; that the ap-
pointment in this case of a receiver having
been obtained on a judgment on a warrant of
attorney, was therefore over-reached by the
bankruptcy; that the receiver should be re-
moved.

Semble—The absolute order was the order for
appointing a receiver within the 5 & 6 W.4,c.
55, s. 37.— Baker v. Pettigrue, 21. E. R. 144.
(R.)

7. Semble—In the case of petitioners under
the5&6 W. 4, c. 55, the relative priority of
several judgment creditors is to be ascertained
by the dates of their respective absolute orders
for appointing or extending the receiver.—
Egan v. Mulholland, 2 I. E. BR. 454, 459, note.

(h.)

8. Upon a judgment creditor’s petition
under the 5& 6 W. 4, c. 55, a receiver was
appointed. Two years later he was extended
to the cause of a prior specific incumbrancer,
V., to whom a large sum was due; whose
rights were clear and admitted; and who,
after the extension, applied to be paid arrears
of interest out of a fundin Court, the produce
of rents received before the extension, and
not more than enough to pay what was due
on foot of the judgment. Held, that the rents
were not attached by the filing of the incum-
brancer’s bill, nor until the extension order
was made; and that the fund in Court should
be deemed bygone rents belonging to the
puisne creditor, since he had realised it before
V. attached the rents, and by a proceeding to
which V. was not a party, and in which no ac-
count could be taken of his demand.

That the puisne creditor was also entitled to
it, because it was realised by a receiver in
the matter of a judgment creditor, under the
5&6 W.4, v. 55, and was therefore—(to the
Rights of.

extent of the sum due on foot of the judgment
and costs)—to be deemed received by the
judgment creditor himself, after an execution
executed under an elegit—Morrogh v. Hoare,
51. E.R. 195, 209, x (R.)

1. In 1809, two estates, C. and D., were
settled to such uses as A. should appoint; in
default, to A.in fee. Several judgments were
recovered against him between 1809 and 1829,
when A. exercised his power by conveying C.
to a purchaser, V., in fee, and D. to a trustee
for 500 years, to indemnify V. against such
debts affecting C. as he should pay off, remain-
der to himself in fee. V. paid off the judg-
ments, which were assigned by a deed by
which A. covenanted that the sums paid in
discharge of them should be within the trusts
of the 500 years’ term. Held, that, as against
other creditors, those sums were not charged
on that term, because, being defeated by the
exercise of A.’s power to its full extent, they
did not affect C. Hickson v. Collis, 6 I. E. R.
524; 1 Jon.& L. 94. (C.)—[Reversed: 10 I.
E.R. 447. (C.)]

2. The personal estate of an infant seized
in fee of real estate, was applied to pay
charges affecting it. The infant died under
twenty-one. Held, that the next of kin were
entitled to claim those charges as part of his

[DEBTOR AND CREDITOR.]

Priority. 181
the elegit creditor would be bound to account
for wilful default for the whole time of his
possession.— O’Brien v., Mahon 1 Con. & L.
390, note; 2 Dr. & War. 806. (C.)

7. F, in 1791, and D., in-1813, obtained
judgments against A. A., in March 1814,
granted to F. lands, upon trust to receive
thereout an annuity of £500 a-year, in
order, amongst other purposes, to pay the
interest on his judgment, and to accumulate a
fund for the payment of his principal. <A., in
Nov. 1814, by deed to which F. was a party,
granted R. an annuity of £100 a-year, out
of the same lands, F. agreeing that his an-
nuity should be postponed to R.’s. D. insti-
tuted a suit and obtained a decree for a sale.
Held, confirming the order of the M. R [see 2
I. E. R. 303], that F. was not precluded by the
deed of March 1814, from setting up his
judgment as prior to D.’s; but that by the
deed of Nov. 1814, he was, as to that priority,
a trustee for R.

When a party, having different grounds
of priority, at the hearing waives all priority,
and a declaration to that effect is inserted in
the decree, he will not be heard to say that he
meant to waive only a particular ground of
priority; the decree being conclusive until
reversed on rehearing or appeal.—Drought v.
Jones, 2 Con. & L. 378; 4 Dr. & War. 174.

personal estate.—Dowling v. Belton, Flan. & | ((,)

K. 462. (R.)

3. The second proviso of the 3 & 4 Vic., ¢.
105, s. 22, prevents a judgment debt from
affecting the rights of simple contract cre-
ditors in bankruptcy who became such before
the 1st Nov. 1840.—Re Perrin, 4 I. E. R. 89,
362; 2 Dr. & War. 147;,1 Con. & L. 567.

(C.)

4. After a final decree for paymeut of judg-
ment debts, and an allocating report pursuant
thereto, a prior judgment creditor (not a
party to a decree, but afterwards brought be-
fore the Court by supplemental bill, and, by
the decree in the supplemental cause, com-
pelled to join in the conveyance to the pur-
chaser under the decree in the original cause)
intervened on the motion to confirm the allo-
cating report, and insisted upon his priority.
A portion of the fund having been impounded
to abide the settlemeut of his claim, and he
having obtained an order of reference, and a
report thereunder, as to the sum due to him;
Held, that the fund impounded was properly
applicable to the payment of his demand,
notwithstanding the decree in favour of the
puisne creditor—Barrett v. Bermingham, 4 I.
E. R. 537; Fl. & K. 566. (R.)

5. In a suit instituted by a judgment credi-
tor, to redeem an elegit creditor in possession,
the latter is not bound to account for what
rents he might, without wilful default, have
received, unless from the time of filing the
pill—M‘Donnell v. Walsh, 1 Con. & L. 389; 2
Dr. & War. 252. (C.)

6. If the debtor were plaintiff in the suit,

 

8. A mortgagor by will created a trust for
the payment of, amongst others, the mortgage
debt. In a suit to foreclose—Held, that the
mortgagee was entitled to have his mortgage
paid in the first instance out of the general
personal estate of the mortgagor ; in default
of payment thereout, to have the mortgaged
lands sold; and if the fund so produced proved
deficient, then to come in as a specialty credi-
tor, and avail himself of the trust in the will
of the mortgagor. The decree was so made.—
Marshall v. M‘Aravey, 3 Dr. & War. 232. (C.)

9. If a creditor with a prior incumbrance
buys the estate, which is subject to a puisne
incumbrance, he lets in the second incum-
brance to the injury of the prior incum-
brance, the benefit of which is completely
lost.— Garnett y. Armstrong, 2 Con: & L. 458;
51 E.R. 533; 4 Dr. & War. 182. (C.)

10. A tenant for life of a leasehold estate
purchased a mortgage affecting the inherit-
ance, and assigned it to ptf. as a security for
advances. The head-rent having fallen into ar-
rear, ptf., at the instance of the tenant for life,
paid what was required to prevent an eviction
of the interest, and, upon the accruing of
another arrear of head-rent, made a further
advance for the same purpose. Held, that,
in respect of such payments, ptf. was to be
regarded as a salvage creditor, and entitled
as such to the first charge upon the estate.—
Hill v. Browne, '6 I. E. R. 403; Dr. Rep. temp.
Sugden, 426, (C.)

11. In 1820, A, conveyed his life estate to
182 Creditors’

his son, B., who covenanted to indemnify
A. against certain debts, including a bond
of W., who in 1822 obtained a judgment
against A. In 1824 B. conveyed the estate
to V. in trust to sell, and to pay, Ist, spe-
cified mortgage debts; 2nd, specified judg-
ments entered against B.; 3rd, specified bond
debts; the debts to be paid in such priority
as V. should think proper. W.’s judgment
was enumerated amongst those specified. V.
did not determine the priorities. Held, that
W.’s judgment was not to be postponed to
judgments against B.; and that, in construing
the deed, the words “entered up against B.”
might be rejected.— Taylor v. Gorman, 61. E.
R. 634. (C.)

1. R., a judgment creditor, having in 1840
sued out a writ of ji. fa., on which there was a
return made of n. 6. (the debtor’s leaseholds
having been previously mortgaged), filed his
bill on the 16th Nov. 1840. W., a prior
judgment creditor, afterwards petitioned for
a receiver, who was appointed by. an order in
the cause and matter, and also in the cause
of the mortgagee. After sale of the lands
to pay the mortgagee, R. and W. applied for
the surplus fund. Held, that R. was entitled
to it in priority to W.

The right acquired by suing out the fi. fa.
was not lost on its return.

Before the return of the writ the judgment
creditor’s right is inchoate and incomplete ;
but the equitable remedy is called into opera-
tion when it appears on the return that his
execution is frustrated by 4 legal impedi-
ment.—Simpson v. Taylor, 7 I. E. R. 182. (R.)

2. A sequestration having issued against
deft., for not performing a decree to pay
the ptf. money, the sequestrators seized the
rents and profits of his lands. Ptf. and a
prior incumbrancer applied for the fund in
the sequestrators’ hands. Meld, that the prior
incumbrancer was entitled to them.— Burne v.
Robinson, 71. E. R. 188. (R.)

3. A., seized of certain lands charged
with an annuity, and of other lands not so
charged, sold a portion of the former to B.,
and covenanted with him that the annuity
should be exclusively borne by the latter. By
a subsequent marriage settlement, A. con-
veyed the indemnity lands to the use of him-
self for life, remainder to the use of such
sons of the marriage as he should appoint,
remainder to the first and other sons in tail,
and covenanted with the trustees for quiet en-
joyment and against incumbrances. The an-
nuity having fallen in arrear, a bill was filed
to raise the arrears and secure the future
gales. B. also filed a bill for a sale of
the indemnity lands. Part of them was sold,
the annuity and the arrears were paid, and
the balance of the purchase-money lodged
in Court, on which dividends accumulated for
many years. A. having afterwards become
insolvent ; Held, that the first son of the mar-
riage was entitled, as against the insolvent’s
assignee, to be recouped the sum paid in
discharge of the annuity, out of the dividends

[DEBTOR AND CREDITOR.]

 

Priority.

in Court—Coote v. O'Reilly, 7 I. E. R. 356;
1 Jon. & L. 455. (C.)

4, A receiver was appointed in a cause in-
stituted by an annuitant whose annuity
affected the life estate, and was extended to
the matter of a prior judgment creditor,
whose judgment affected the inheritance.
The rents received must be applied according -
to the parties’ legal rights. The Court can-
not, without the judgment creditor’s consent,
apply the rents first to pay the interest on the
judgment debt, and then to pay the demand
on the life estate.-— Corbet v. Mahon, 8 I. E. R.
635; 2 Jon. & L. 671. (C.)

5. Debts by specialty, in which the heirs are
not bound, are not, in administering real
assets, entitled, under the 3&4 W. 4, c. 104,
to any priority over simple contract debts.—
Cummins v. C., 8 I. E. R. 723; 3 Jon. & L.
64, (C.)

6. The Docketing Acts, 7 W. 3, c. 13, and
3 G.2, ¢. 7, apply only between purchasers and
judgment creditors, but give no priority to
judgments inter se.—Abdbott v. Stratten, 9 I. E.
R. 233; 3 Jon. & L. 603. (C.)

7. A. obtained a judgment in 1789 against
B., who was then seized of several estates.
B., in 1792, died, and by his will devised
one denomination to C. and another to D.
C., in 1796, married, and thereupon set-
tled the estate devised to him. The execu-
tors of A., in 1828, revived the judgment of
1789 against C., the heir, and certain terre-
tenants, and thereupon issued an elegit: and
obtained a finding thereunder prior to the
passing of the 2 G. 4, c. 35, but were pre-
vented from getting into possession by the
proceedings of a,prior creditor. The judg-
ment was not revived or redocketed within
five years from the passing of that Act, ac-
cording to the provisions of the 3rd section.
On a bill filed within twenty years from the
revival of 1828 against E., claiming under the
settlement of 1796, and D. and other parties—
Held, that notwithstanding the revival of 1828,
the elegit, and other proceedings thereunder,
no possession having been obtained, the plain-
tiff was barred as against E. by the 3rd sec. of
the 9 G.4, c.35. That the judgment creditor
(having a legal right, and proceeding against
the legal estate of his debtor) by his omission
to redocket—thereby exonerating one deno-
mination of land originally liable, and casting
the entire debt upon the other, without afford-
ing a right of contribution to that other—did
not thereby lose his right to go against that
other for the whole amount, and that no equity
existed to restrain such creditor to the amount
to which that denomination was originally
liable.

That a judgment creditor filing a bill ina
Court of Equity for a sale of his deceased
debtor’s freehold estate, need not aver on the
face of his bill that he has sued out an elegit
on his judgment.—Ryan v. Cambie, 9 I. E. R.
378. (E.E.)
Creditors’

1. The devisee, V., of a leasehold estate for
lives having suffered an arrear of rent to be-
come due, the landlord brought an ejectment.
At V.’s request C. advanced money to pay the
rent. It was paid; and V. mortgaged the lands
to secure the repayment of the money.—Held,
that the mortgagee was not entitled to priority
over the judgment creditors of the devisor.—
Angell v. Bryan, 3 Jon. & L. 763. (C.)

2. In 1792, C. obtained against B. a judg-
ment, which was never revived or redocketed,
but interest was paid within twenty years be-
fore the proceedings by C. In 1812, B. en-
tered into a recognizance to abide the decree
to be pronounced in LaTouche v. O’Brien, in
which, though revived, a decree had not been
pronounced. In 1816, B.’s heir granted for
value an annuity charged on the lands which
he inherited. The lands having been sold,
there remained in Court a fund consisting of
the surplus of the purchase-money; of rents
received in the cause; and of dividends of
stock purchased by the two former sums. In
1844, an order was made to report priorities,
and to distribute these funds amongst the cre-
ditors pursuant to the 102nd G. O., and report
thereon.—Held, that the judgment was to be
postponed to the annuity.

That payment of interest within twenty
years before the order, took the case out of
the Stat. Lim., though more than twenty years
had elapsed between the obtaining of the judg-
ment and the payment.

The annuity does not, by gaining priority
over the judgment under Moore’s Act, carry
up the recognizance so as to give it priority
over the judgment, there not being therein
any provision like that in the Registry Act,
and the judgment being affected only to the
extent of the annuitant’s claim against the
land.

That, possibly, a decree might be pronounced
in the revived suit of La Touche v. O’Brien, and,
if so, the recognizance would be a subsisting
charge, and would have priority over the an-
nuity as against the suplus produce of the sale,
but would not attach upon the rents or divi-
dends.—LaTouche v. O’Brien, 10 I. E. R.
113. (R.)

3. A. obtained a judgment in T.T. 1845; B.
obtained one in T. T. 1846. A. sued out an
elegit, the requisition on which was returned
and filed on July 20th, 1846; and went into
possession of the lands. B.’s judgment was
registered in Sept. 1846; A.’s in Jan. 1847.
The latter has priority—O’Brien v. Scott,
111. E. R. 63. (R.) ‘

[On appeal, the Ld. Ch. offered the appel-
lant time to take further proceedings at law ;
or an issue to a Court of Law. No further
proeeedings, however, were taken.— O’Brien v.
Scott, 111. E. R. 459. (C.)]

4, In 1836, a receiver was appointed under
the Sheriffs Act, over a term for years, which
was afterwards sold under a statute. The
price was brought into Court to the credit of
the matter. eld, that, as against a prior
creditor, A. was entitled only to the dividends

[DEBTOR AND CREDITOR.]

 

 

Priority. 183

of the fund, but not to the principal, notwith-
standing the 3 & 4 Vic., c. 105, s. 22.—Colvan
y. Gregg, 18 I. E. R. 88. (R.)

5. In a suit to raise the amount of a charge
on lands, a sum paid on account of other de-
mands by the tenant in tail of the lands, to
the owner of the charge under a mistake, can-
not be claimed as a set-off.

A. was tenant in tail of lands subject to a
charge of £5000 in favour of B. B. was also
entitled to a charge of £3000 upon other lands,
of which A. was owner. From amisrecital in
the deeds this charge of £3000 was supposed
to be valid, and A. paid B. the interest there-
on until he discovered his error. B. then in-
stituted a suit to raise the £5000, and A.
claimed to set off the amount of interest
which he had thus paid by mistake, against
the amount reported to be due to B. on foot
of the charge of £5000.—Held, that A. had no
right to such set-off in that suit, the charge of
£5000 being a charge upon the lands, and A.
not being personally liable thereto; and that
the set-off claim being only in the nature of a
simple contract demand, he should proceed at
law to recover it.

That the recital in the Master’s order to the
effect that the respondent was not entitled to
recover back the £428. 18s. should be omitted
therefrom, the Master not having authority to
make such a declaration in that suit—F%tz-
gerald v. F., 11. Jur. N.S. 39. (R.)

6. A., seized in fee of lands, and possessed
of a chattel lease, executed a settlement con-
veying both denominations to trustees, subject
to a trust term of 500 years, to enable the
trustees to raise £7000, to pay debts men-
tioned in a schedule, and referred to as
charges affecting the estates, and to which A.
was liable, some ae simple contract, others
judgment debts. Held, that the creditors
were entitled in equal priority with the party
beneficially interested in the surplus of the
property after the debts were paid, and that the
person claiming under the settlement could
not displace them.— Greene v. Storey, 21. Jur.1.

7. When a creditor, who has paid money to
save premises from eviction by the head land-
lord, files his bill against a sub-lessee, praying
that they may be sold discharged of such
lease, the tenant may be permitted to retire,
on undertaking to execute u surrender; and
will obtain his costs, if the salvage creditor
shall have impugned the lease .on other
grounds, and failed in proving that portion
of his case.—Atkins v. Short, 2 I. Jur. 219.
(E.E.)

8. A father, upon the marriage of his son,
executed a settlement in 1821, conveying a
freehold and chattel real (which latter was
recited to be subject to a mortgage), to trus-
tees, to hold subject to the charges and
incumbrances affecting the same, and speci-
fied in the schedule annexed to the settle-
ment, for a term of 500 years; and subject
to that term, and the aforesaid charges and
184 Creditors’

incumbrances, upon other trusts. One of the
trusts of the term was, to raise a sum of £7000
after the death of the father, for the sole use
of him and his personal representatives, and
to be disposed of as he should direct. There
followed, however, a proviso that the £7000
should, in the first instance, be subject to the
payment of all his debts then affecting the
premises, and to his covenants therein con-
tained for payment (inter alia) of the incum-
brances affecting the premises, it being the
true intent of the settlement that the residue
of £7000 left after those payments should be
disposable by the father, who also cove-
nanted that the premises were free from
incumbrances other than and except such
charges and incumbrances as at the time of,
or immediately before the execution of the
settlement, affected the premises, and were a
lien thereon, and specified in the schedule.
In the schedule, both judgment debts and
simple contract debts were specified. In
1825, the mortgagee of the chattel real having
advanced a further sum to the father and
son, part of which was applied in payment of
three of the judgment debts specified in the
schedule, the father and son re-mortgaged the
chattel real, and mortgaged the freehold to
him for the aggregate debt; and for better
securing the same, the father, reciting his
power under the settlement, directed that the
trustees of the term should, after his decease,
raise £7000, and apply it in payment of what-
ever might then remain due on foot of the
aggregate mortgage debt. The judgments
paid off were also assigned as a collateral
security to the mortgagee. In a foreclosure
suit by the mortgagee—Hedd, that so mueh
only of the advance by him in 1825 as was
applied in payment of the three judgment
debts, ranked equally in point of priority
with the other judgment and simple contract
debts specified in the schedule; and, accord-
ingly, that all the judgment and simple con-
tract debts specified in the schedule were well
charged by the settlement upon the term, and
the £7000 to be levied thereout; and that the
remaining portion of the advance made in
1825 ranked subsequently to all those judg-
ment and simple contract debts. Held, that
the mortgage of 1825 did not operate as a re-
vocation of the settlement in respect of the
debts specified in the schedule.

Quaere — Whether, independently of the
term and of the £7000, the debts specified in
the schedule were well charged upon the free-
hold and chattel real, the subjects of the
settlement?—Greene v. Stoney, 13 I. E. R.
801. (C.)

1. A suit for foreclosure and sale having
been instituted in 1833, a judgment was re-
covered against the owner of the equity of
redemption before any decree in the cause. A
decree was made in 1842. The judgment credi-
tor was not a party tothe suit. In 1844, he ob-
tained, on petition, a receiver on foot of his
judgment, over part of the mortgaged estates.
Held, that ptf. was entitled to have the re-
ceiver extended to this cause, since the judg-
ment, having been recovered pendente lite, did

{DEBTOR AND CREDITOR.]

 

Priority.

not give the conusee any right against the
mortgagee, the ptf—Trye v. Earl of Aldbo-
rough, 11. C. R. 666. (C.) -

2. An unredocketed judgment is not only
null and void as against a subsequent pur-
chaser for value, but also, in order more
effectually to work out the object of the Re-
docketing Act, is necessarily null and void as
against an intervening redocketed judgment.
In re Huthwatte,21.C. BR. 54. (B.C.

3. A stop order gives no priority to the
party who has obtained it, unless it is lodged
with the Accountant-General; the lodgment
being equivalent to notice to the trustee of
the fund, or the debtor. .

A bill for an injunction was filed by W. in
the cause of W.v. S., to restrain 8. from suing
at law on bills of exchange. Pending a motion
for security for costs, W. obtained a decree
pro confesso, which referred it to the Master to
take an account of the money bona fide ad-
vanced by S. to W., who undertook to pay any
balance which should be found due by him on
account. An order was afterwards made
on consent, that the decree and injunction
should be set aside, S. undertaking to file his
answer within a month; and that he should
have a lien on the funds reported or decreed
in the cause of W. v. M‘K., and if the answer
was not filed within a month, that the decree
and injunction should remain in force. After-
wards E. obtained an order in the cause of W.
vy. M‘K., that the same funds should be charged
with a sum in favour of E., and that when the
funds should be allocated, he should be at
liberty to file a charge, and be reported that
sum. Held, that S. had acquired a lien on the
funds for any demand for costs, or otherwise,
which he should establish his right to in the
suit of W. v. S.; and that he had priority
over E., neither party having lodged his order
with the Accountant -General.— Waller v.
Wildridge, 31. C. BR. 155. (R.)

4. The dividends of a sum of bank stock,
and another sum in £3} per cent. stock, were,
by a deed between E. and several of his credi-
tors, assigned in trust to pay the dividends of
the bank stock to E. for his maintenance and
support until he should become a bankrupt or
insolvent, or assign the same, or until any
creditor of his should do any act or acts for
the purpose of having same applied in or
towards payment of his individual debt, and
no longer; and as to the residue of the stock,
and as to the dividends, from the time when
E. should become bankrupt, or insolvent, or
assign the same, or from the time when any
creditor of his should proceed to attach the
same for payment of his individual debt, upon
trusts for the benefit of scheduled creditors.
The deed provided that it might be cancelled,
or the application of the trust funds changed
by the consent of the majority of the scheduled
creditors and E. A creditor of E. not a party
to the deed, whose judgment was prior to it,
obtained a conditional order to charge the
two sums of stock. E showed cause, relying
on the deed. Held, that the conditional order
Rights and

was not a proceeding to attach the dividends
which gave effect to the limitations over.

Quere—Whether the limitations over be
not void ?

No creditor claiming under the deed show-
ing cause, the Court made the order absolute
as to the dividends of the bank stock, but
allowed the cause as to the £3} per cent.
stock, the deed being for valuable considera-
tion.— Synge v. S. 3 I. C.R. 262, (R.); 41.
C.R. 337. (C.)

1. By the 12 & 13 Vie, c. 107, s. 108, a
judgment against wu bankrupt is reduced to
the rank of asimple contract debt. Whena
petition under the Ch. Reg. Act, s. 15, is pre-
sented by parties other than the assignees for
the sale of the bankrupt’s lands, to raise the
amount of charges on them, the petitioners,
having the carriage of the proceedings may,
and ought to resist the proof of a charge by a
judgment creditor seeking to have the benefit
of his judgment.

A judgment does not, before award of an
elegit, bind chattel lands as against purchasers
and mortgagees, who became so before the
8 & 4 Vic., c. 105.

An appeal does not properly lie upon the
rulings of a Master; the order itself ought to
be made up before the appeal is brought.—
Jones v. Stokes, 2. 1. Jur.N.S. 42. (R.)

2. In 1812 a’ mortgage was executed by A.
and B. to C. In 1813 two judgments, and in
1815 another judgment, were obtained by C.
against A. C. entered into possession of the
mortgaged lands in 1812, and continued in
possession until 1855. In a redemption suit—
Held, that the judgments were not, as far as
related to the question in this case, to be
considered as incorporated with the mort-
gage; and that the rents received by C. were
to be applied, first, in payment of the princi-
pal and interest due on the mortgage; se-
condly, in payment of the principal and
interest due on the judgments of 1813; thirdly,
in payment of the principal and interest due
on the judgment of 1815.—Montgomery v. Do-
nohoe, 6 I. C. R. 168; 2 1. Jur. N.S. 401.
(C.)

8. In March 1857, the bankrupt borrowed
from W.asum of £200, and deposited with
W. as a security a memorandum of agreement
between the bankrupt and his landlord, that
on payment of the sum of £400, by instalments
of £50, a lease should be granted to the said
bankrupt. The instalments were not paid,
and the benefit of the agreement was forfeited.
In April 1858, the bankrupt, being indebted
to R. in the sum of £160, proposed as security
to R. an equitable mortgage on the premises.
The landlord agreed to execute a lease, on
payment of £100, the balance due of the £400.
The lease was executed, and R. paid the £100.
Held, that R.’s demand for £260 was prior to
the claim of W. on the leasehold premises.—
In re Clarke, 8 I. C. R. 216. (B.)

4, Where there are no incumbrances prior

[DEBTOR AND CREDITOR.]

 

Priorities. 185

to his, a petitioner having the carriage of the
suit is entitled to his costs out of a fund the
produce of real estate, in the first instance,
and in priority to the demands and the costs
of creditors in equal priority with him.—[ Tay-
lor v. Gorman, 1 Dr. & W., observed on.]—
Watson v. Fitzpatrick, 111. C. R. 218. (R.)

5. A., tenant for life of lands (with power
of charging £1000 thereon for his own use),
remainder (in the events which happened) to
his daughter B. in tail male; by deed for
value conveyed the lands and all his interest
therein to B., subject (amongst other things)
to the charge of £1000; and covenanted for
good title, quiet enjoyment, and further assur-
ance. B. subsequently purchased a judgment
for £3000 entered up against A. before the
date of the conveyance. Held, that although
the effect of the conveyance was not to merge
the charge during the lifetime of A., yet that
the petition must be dismissed with costs on
the principle of equity that a tenant for life,
having a charge on the inheritance for his
own benefit, cannot deal with it so as to pre-
judice a judgment creditor on his life estate ;
and also because under the covenant for quiet
enjoyment, A. was bound to indemnify B.
against the judgment, the amount of which he
must pay before he could raise his charge of
£1000.—In re Gardiner, 111. C.R.519. CLE.
C.)

d

6. When the estate is charged with an an-
nuity, subsequent creditors are entitled to
have the estate sold subject thereto ; but if it
is sold discharged therefrom, the Court will
direct the annuity to be valued so as to release
the funds for payment of subsequent charges.
—In re Walsh’s Estate, 6 I. Jur. N.S. 165.
(.E.C.)

7. In a post-bankruptcy composition, a ma-
nager of the bankrupt’s estate was appointed,
on undertaking to provide £8000 for the
necessary outgoings of the estate; and also to
have at all times forthcoming £5000 for the
benefit of the bankrupt’s unsecured creditors.
The manager was to be considered a salvage
creditor for all necessary advances. Held,
that he could not insist on the benefit of his
salvage claim in priority to the creditors, or
without providing, in the first instance, for
the £5000, which he originally undertook to
have on hands for their benefit.—Re P. Grehan,
111. Jur. N. 8. 98. (B.)

8. In asuit against an executor fora breach
of trust committed by his testator, a decree
declared him liable for the breach of trust,
and directed an account of the assets. The
executor was reported a creditor against the
assets for a debt of a firm of which the testa-
tor had been a member. After the filing of
the bill, but before decree pronounced, the
executor assigned the debt. The final decree
ordered him to pay the sum found due in
respect of the breach of trust, and afterwards
a sequestration was obtained to attach a sum
carried to his separate credit, on account of
the debt reported due to him. Held, that the

24
186 Appointing

debt having been assigned pendente lite, the
plaintiff was entitled on the final allocation
to be paid the sum decreed to him in prefer-
ence to the executor’s assignee.

A judgment at law was obtained against
the indorsee of a bill of exchange. In a suit
to administer the acceptor’s assets the report
found the full amount of the debt. After-
wards the indorsee paid several sums on ac-
count of the debt. The assets proving deficient,
the debts were decreed to be paid rateably.

Held, that the sums paid by the indorsee
should be deducted from the amount reported
in calculating the rateable proportion of the
assets to which the creditor was entitled.—
Cummins v. C.,16 I. C. R. 156. (B.)

1. A married woman obtained over her
husband’s estate a receiver, for arrears of an
annuity settled to her separate use. By an
order, made with her consent, the receiver
was discharged, without prejudice to her pro-
ceeding, as she might be advised, for the
arrear then declared to be due, or the accru-
ing gales. The husband went into possession.
After the consent order, a creditor obtained
an order fora receiver. The wife re-appoint-
ed the receiver in her cause. Held, that the
presumption of release, or payment of ar-
rears of pin-money, did not arise; and that
she was entitled to the arrear due at the date
of the consent order, and to the subsequent
gales. ae

Principles touching arrears of pin-money.—
Edgeworth v. Edgeworth: O'Sullivan v. Edge-
worth, 16 I. C. R. 348. (R.)

 

IX. AprormntMent or 4 RECEIVER.

2. Rents which became due prior to an
order extending a receiver in the matter of
a judgment creditor to a second matter, but
were not received until after the extending
order, are applicable, in the first place, to the
payment of the judgment creditor, by whom
the receiver was first appointed—Rule v.
Henry, Flan. & K.97. (R.)

3. A creditor by custodiam, on a judgment
in a penal sum, obtained an order for the ap-
pointment of a receiver—Held, not entitled
to interest beyond the penalty which had ac-
crued on the principal subsequent to the
appointment of the receiver—Barry v. Wil-
kinson, 81. E.R. 121. (E.E.)

[See this case observed on, ibid, 564.]

4, Arrears of rent, accrued before the ap-
pointment of a receiver under the 5 & 6 W. 4,
c. 55, are to be collected by him, but are to be
paid over to the debtor if he think proper to
apply for them ; and are not applicable to the
payment of the judgment creditor’s demand.
—Marquis of Sligo v. O’ Malley, 3 I. E. R. 527;
Flan. & K. 300. (R.)

5. It was not decided in Barry v. Wilkinson,
3 I. E. R. 121, that the appointment of a re-
ceiver, under 5&6 W. 4, c. 55, attaches the
arrears in the tenant’s hands, for the benefit of

[DEBTOR AND CREDITOR.]

 

Receiver.

the judgment creditor obtaining the order of
appointment.—Barry v. Wilkinson, 31. E. R.
564. (E.E.)

6. On a judgment creditor’s petition for a
receiver under 5 & 6 W. 4, c. 55, the debtor is
entitled to all the rents due before the condi-
tional order for the receiver has been made
absolute.—M ‘Loughlin v. Longan, 41. EB. R. 325.
(R)

7. In 1828, judgment obtained upon a war-
rant of attorney was entered up against a
trader, V. On March 3rd, 1841, there was
obtained against V. a conditional order under
the5&6 W.4,c. 55. That order was made
absolute on the 8rd of April. On May 17th a
commission of bankruptcy issued against V.
Some of the simple contract creditors who
proved under it had been such before the
3 & 4 Vic., c. 105, came into operation. V.’s
assignee moved to remove the receiver. Held,
that the absolute order was that meant by the
5&6 W.4,c. 55, 5.387; and that the receiver
ought to be removed, because the petitioner
came within the provisoes of the 3 & 4 Vic., c.
105, s. 22.—Burt v. Bernard, 4 I. EB. R. 328;
Fl.& K. 414. (R.)—[Aff. 5 1. E.R. 425; 3
Dr. & War. 464; 2Con. & L. 271. (C.)]

8. Rents which have accrued due before the
pronouncing of an order extending a receiver
upon a judgment, to the matter of a prior
judgment creditor, although received after-
wards, are to be distributed as if the order
extending the receiver had not been made.—
Coleman v. Mason, 41. E.R. 421. (E.E.)

9. Upon uw judgment creditor’s petition,
under the 5 & 6 W. 4, c. 55, a receiver was
appointed, on the 9th May, 1840 over the
lands of the debtor ; andextended, on the 16th
June 1842, to the cause of a prior and specific
incumbrancer, A., to whom a large sum was
due, and whose rights were clear and fully ad-
mitted. After the extension A. applied for
payment of arrears of interest out of the fund
in Court, which was the produce of rents re-
ceived by the receiver in the matter before he
was extended to the cause, and not more than
enough to pay the sum due on foot of the
judgment. Held, that the rents were not
attached by the filing of the incumbrancer’s
bill, nor until the order extending the re-
ceiver; and that the fund in Court should be
considered as bygone rents belonging to the
puisne creditor, as it was realised by him be-
fore the prior incumbrancer attached the
rents, and by a proceeding to which he was
not a party, and in which no account could be
taken of his demands. That the puisne creditor
was entitled on another ground ; namely, that
it was realised by means of a receiver in the
matter of a judgment creditor, under 5 & 6
W.4, c. 55, and was therefore to be considered
(to the extent of the sum due on foot of the
judgment and costs) as if it had been received
by the judgment creditor himself, after an
execution executed under an elegit—Morrogh
y. Hoare, 51. E.R. 195. (B.)
[DEBTOR AND CREDITOR.—DECISIONS.]

1. A person, who was entitled to a life
estate in lands, and had a policy of insurance
on his life, conveyed his life estate to a trustee
for creditors, upon trust, “out of the interest,
proceeds, or annual rents thereof,” to pay the
head-rent to which the lands were subject, and
the premiums of insurance on the policy;
and to pay to the creditors the amount due
to them, with interest. The deed provided
that the debtor should be at liberty to make
leases. There was no covenant by the debtor
to pay the money. By a separate deed, the
debtor assigned the policy of insurance to the
trustee, to secure the debt. Held, that the
creditors were not entitled to a sale of the
debtor’s life interest, but only to have a re-
ceiver appointed, and the trusts carried into
execution under the direction of the Court.—
Taylor v. Emerson, 6 1. E.R. 224. (C.)

2. When the plaintiff, a creditor in an ad-
ministration suit, obtained an order for a re-
ceiver in 1822, but it was not made absolute
or acted upon until 1834, the Court directed
an inquiry to ascertain by whose default the
receiver was not appointed; and directed,
that if it should appear that it was by the
plaintiff's default, and if he might, through
such appointment, have kept down the inte-
rest on his own demand, he should not now
be entitled to so much of the interest on his
debt as would have been paid by the receiver,
had he been appointed as early as he might
have been.—Newby v. Drew, 7 I. E. R. 349;
1 Jon. & L. 445. (C.) [See Newby v. Drew,
101. E. R. 58; Newby v. Drew, 12 I. E. RB. 24.]

3. Real property of the wife was, on the
marriage, conveyed to trustees to the use of
the husband for life, or until he should com-
mit an act of bankruptcy, or until he should
make a composition with his creditors, or
should make any assignment of his effects for
the benefit of his creditors, or until he should
become insolvent, or take the benefit of any
Act for the relief of insolvent debtors, or
until an elegit should issue against the lands;
and after the husband’s death, or the happen-
ing of any of those events, to the separate use
of the wife. The husband assigned all his
real and personal estate to a trustee for the
benefit of his creditors. On a bill filed by a
judgment creditor of the husband, the Court
refused to appoint a receiver, his life estate
having determined by the assignment.—Hayes
v. Marshall, 10 I. E, R. 429. (R.)—[Afid., ibid,
445. (C.)]

4, A suit for foreclosure and sale having
been instituted in 1833, a judgment was, in
1835, before any decree, recovered against the
owner of the equity of redemption. In 1838,
adecree to account was pronounced. In 1842,
a final decree to sell all the mortgaged estates
was made. In 1844, the judgment’ creditor,
who had not at any time been a party to the
cause, obtained on petition a receiver on foot
of his judgment over a part of the mortgaged
estates.—Held, reversing the decision at the
Rolls, that the plaintiff was entitled on motion
to have the receiver, appointed in the petition

 

187

matter, extended to the cause, inasmuch as
the judgment having been recovered pendente
lite gave the conuzee no right as against the
mortgagee, the ptf—Trye v. Lord Aldborough,
ILC. R. 666; 41. Jur. 53. (C.)

 

DECEIT.
See AGREEMENT, [V—FRaup.

 

DECISIONS IN OTHER COURTS.
When Evidence.—See Practicr, EvIDENCE.

 

DECISIONS APPROVED, FOLLOWED,
DOUBTED, COMMENTED ON,
OVERRULED, OR IMPUGNED.

A

Allen v Blessington, 2 Mol. 492, considered.—
M‘Caul v M‘C., 21. Jur. 170. (R.)

Appleby v Duke, 1 Hare, 303, commented on
Betham v Mitchell, 51. E.R. 219. (R.)

The Attorney-General v Flood, Hay & Jon’
App., 32, is not a binding authority. The
Incorporated Society v Richards, 4 I. E.
R. 195. (C.)

Averall v Wade, 1 Mol. 571, n., ought not to
bind this Court. Barry % Stawell, 3 I. E.
R.18; Fl. & K.1. (RB)

B

Barrett v Birmingham, 4 I. E. R. 587, distin-
guished. In re Clendinning, 9 I. C. R.
284. (B.)

Barry v Stawell, 3 I. E. R. 18, 146, considered.
Bowyer v Beamish, 8 I. E. R. 68. (C.)

Barry v Wilkinson, 3 I. E. R. 121, overruled.
M‘Loughlin v Longan, 4 I. E. R. 327 (R.),
and Burt v Bernard, 4 I. E. R. 328. (R.)

Barry v Wilkinson, 3 I. E. R. 121, observed on.
Coleman v Mason, 41. E. R. 424. (E.E.)

Barton v Lord Downes, Fl. & K. 505, consi-
dered. Spunner v Walsh, 10 I. E. R. 386.
R)

Barton v Sampson, 31. Jur. N.S. 71, followed.
Radcliff v Orme, 5 I. Jur. N.S. 245. (C..
A.)

Bastard v Proby, 2 Cox, 6, approved of.—
Rochford v Fitzmaurice, 4 I. E. R. 385;
2 Dr. & War.1; 1 Con. & L. 158. (C.)

Beere v Head, 3 Jon. & L. 340, approved of.
In re Huthwaite, 2 I. C. R. 54; 41. Jur.
161. (P.C.)

Semble—That Bell v Ahearne, 12 I. E. R. 576,
cannot be supported any longer. Gaggin
v Upton, Dr. Rep. temp. Napier, 427. (C.)

Bellamy v Jones, 8 Ves. 31, has been greatly
modified. Blackwood v Burrows, 4 I. E.
R. 610. (R.)

Bennett v Briscoe, 1 I. C. R. 594, disapproved
of. Ryan v Fitzgerald, 5 I. C. R. 228.

"(C.)
188

Bennett College v The Bishop of London, 2
Black, 1132, disapproved of. The Incor-
Poteet Society v Richards, 4 I. E. R. 195.

C.)

Bernard v Bond, 1 I. C. R. 198, followed.
oo v Gibbings, 1 I. C. R. 201.
C.)

Bernard v Drought, 1 Mol. 38, cannot be sus-
tained. Smith v Chichester, 2 Dr. & War.
393 ; 1 Con. & L. 486. (C.)

Berrington v Evans, 1 Y. & Col. 744, com-
mented on. O’Kelly v Bodkin, 3 I. E. R.
390. (E.E.)

Berrington v Evans, 1 Y. & Col. (Exch.), fol-
lowed. Hutchins v Sullivan, 111. E. R.
443. (R.)

Blackburne v Staples, 2 Ves. & B. 369, acceded
to. Rochfort v Fitzmaurice, 4 I. E. R.
382; 2 Dr.& War. 1; 1 Con. & L. 158. (C.)

Blacket v Lamb, 14 Beav. 482; 21 L. J., N.S.
46; 16 Jur. 142, commented on. Mori-
to v Martin, 31.C. R. 26; 41. Jur. 321.

Bland v Goold, 1 I.E. R. 5, not followed.
Morrogh v Hoare, 51. E. R. 195. (R.)

Blewitt v Roberts,

proved of. Heron v Stokes, 4 I. E. R.
293. (C.)

Blunden v Desart, 2 Dr. & War. 405 (C.),
considered. Edge v Billing, 1 I. Jur. 285.
(&.E.)

Bonham, Ex parte, 1 Deacon, 26, observed on.
In re Fahy, 3 I. E. R. 588. (B.) ‘

Booker v Allen, 2 R. & Myl. 270, observed on.
Hall v Hill, 41. E. R. 27. (C.)

Boville, Ex parte, 2 Mont. & Ayr, 382, ~., ob-
served on. Bristow v Warner, 10 I. E.
R. 246. (C.)

Lewis Bowles’s case, 11 Rep. 81, a., explained
and observed:on. Creagh v Blood, 8 I. E.
R. 688. (C.)

Bozon v Bolland, 4 M. & Cr. 354, considered.
Edge v Billing, 1 I. Jur. 285. (E.E.)

Bradshaw v Tasker, 2 My. & K. 221, approved
of. <Atty.-Gen. v Drummond, 1 Dr. &
War. 380; 1 Con. & L. 231. (C.)

Brett v Greenwell, 2 Y. & Col. 230, disap-
proved of. Napier v N., 1 Dr. & War.
410. (C.)

Britton v M‘Donnell, 5 I. E. R. 275, disap-

proved of, and qualified. Stack v Royse,
WLR. 246; 71. Jur. N.8.114. (R.)

Burke v Hutchinson, 7 I. E. R. 508, explained.
Worrall v White, 9 I. E. R. 572. (C.)

In re Burmester, 9 I. C. R. 41, followed. In
re Lane’s Estate, 5 I. Jur. N.S. 32. (C.A.)

Burne v Madden, Li. & G. temp. Plunket,
493, questioned. French v Macale, 2 Dr.
& War. 269; 1 Con. & L. 459. (C.)

Burne v Robinson, 1 Dr. & War. 658, observed
on. Dillon v Cruise, 31. E. R. 82. (C.)

Burrell v Lord Egremont, 7 Beav. 205 (R.),

followed. Lord Carbery v Preston, 13 I.
E. R. 445. (C.)

1 Cr. & Ph. 274, disap- |,

 

[DECISIONS.]

Cc.

Cardwell v Mackrill, 2 Eden, 344, is of no
great authority. Thompson v Simpson,
1 Dr. & War. 491. (C.)

Carver v Bowles, 2 Russ. & Myl. 304, consi-
dered. Moriarty v Martin, 31. C. R. 26;
41. Jur. 321. (C.)

Casement v Fulton, 5 Moo. P. Cas. 130, fol-
lowed. Slack v Busteed, 61. C. R. 1; 2
I. Jur. N. 8.93. (R.)

Challenger v Sheppard, 8 T. R. 597, observed
upon. Bradshaw v B., 5 I. E. R. 310.
(EEL)

Ex parte Christie, Mont. & Bl. 352; 2 Dea. &
Ch. 154, followed. In re Gallie; ex parte
Gallie, 91. C. R. 188. (B.)

Clayton v Earl of Winton, 3 Madd. 302,
commented on. In re Cullin’s Estate, 9 I.
Jur. N. §. 117. (L.E.C.)

Connor v Cronin, 71. C. L. R. 487, doubted.
Herbert v Rae, 13 1. C. R. 25. (R.)

Coplestone v Nicholas, 33 L. J. N. 8S. P.,
considered. In the Goods of Loftus, 9 I.
Jur. N. 8.97. (P.)

Cornewall v C. 12 Sim. 298, commented on.
Young v Hassard, 7 I. E. R. 309; 1 Jon.
& L. 470. (C.)

Cornish v Gest, 2 Cox, 27, observed on, and
disapproved of. Herbert v Hedges, 10I.
E. R. 479. (E.E.)

Cosgrave v Gannon, 3 I. E. R. 433, approved
of. Whaley v W., 111. E. R. 276. (R.)

The practice in Ireland is not at variance
with Young v Lord Waterpark, 13 Sim.
204, and Cox v Doleman, 2 De Gex M'N.
& Gor. 592. In're Wyse, 41. C. R. 297.
(2.C.) ;

Dictum of M. R. in Croker v Copley, 2 Mol.
471, denied to belaw. Joyce v De Moleyns,
9LE. BR. 576; 3 Jon. & L.698. (C.)

Crowe v O’Dell, 1 B. & B. 459, approved of.
Murray v M., 31.C. R. 120. (C.)

Cross v Sprigg, 6 Hare, 552. [Wigram’s, V.C.,
dictum—that a debt not released at Law
cannot be deemed released in Equity, is
not sustainable.] Hedges v Aldworth, 13
I. E. R. 406. (C.)

Cummins, Exors. of, v Finn (unreported) ap-
proved of. Kirkwood v Lloyd, 121. E.R.
585. (C.)

D
Darcy v Blake, 1 Mol. 274, commented on.
Cosgrave v. Gannon, 31. E.R. 433. (R.) '
Dawson v Beall, 1 Keene, 760, observed on.
Hall v Hill, 41. E.R.27. (C.)
Dawson v Hearn, 1 R. & Myl. 606, followed.
Heron v Stokes, 4LE. ® 292. (C.)
The doctrine of Dearle v Hall, 3 Russ. 1, is
confined to choses in action. Rochard v
Fulton, 71. E. R. 131. (C.) [See Dunster v
Glengall, 31. C. RB. 47; 5 I. Jur. 387.
(R.)]

Dearle v Hall, 3 Russ. 1—Does its doctrine
apply to an equitable assignment of rail-
[DECISIONS.].

way shares? Dunster v. Glengall, 3 1.C.
R47; 51. Sur. 337. (R.)—[See Rochard
v Fulton, 71. E.R. 131. (C.)]

Dearman v Wyche, 9 Sim. 570, doubted. —
Wrixon v Vize, 3 Dr. & War. 104; 2 Con.
& L. 138. (C.)—[See Henry v Smith, 2
Dr. & War. 387; 1 Con. & L. 506. (C.)]

Delany v Mansfield, 1 Hog. 234, observed on.
Morrogh v Hoare, 5 I. E. R. 198. (R.)

Dennis v Deane, 8 L. Rec. N. S. 378, doubted.
Goggin v Downing, 13 I. E. R. 60. (R.)

De Witte v De W., 11 Sim. 41, followed.
Kirby v West, 2 1. Jur. N. 8. 190. (C.)

Dick v Butler, 1 Mol. 42, is not law. Wrixon
v Vize, 41. E. R. 463. (C.)

Doe v Cooke, 7 East. 269, doubted. Ker v
Lord Dungannon, 1 Dr. & War. 528; 1
Con. & L. 835. (C.)

Doe v Robinson, 8 B. & C. 296, observed on.
Bradshaw v B., 5 I. E. R. 310.

Doe v Rowlands, 9 Car. & P. 734, doubted.—
Macnamara v Vincent, 21. C.R. 481; 4
I. Jur.197. (C.)

Doe v Wainright, 5 T. R. 427, followed.
v Sewell, 6LE.R. 72. (C.)

Donegal v Berry, 1 Hog, 46, observed on.—
O’Beirne v O’B., 11. C. R. 152. (R.), 158
(C.); 31. Jur. 65 (R.); 106 (C.)

Drake v D., 2 Hare, 647, considered. Russell
v Beakey, 81. E. R. 559. (R.)

Drew v Bidgood, 2 Sim. & Stu. 424, disap-
droved of. Hayesv. Garvey, 81.E.R.90(C.)

Drew v Clarke, 1 Sim. & Stu. 108, followed.—
Lindesay v L., 121. E.R. 508. (R.)

Drinan v Mannix, 3 Dr. & War. 154, followed.
M‘Kean v Walsh, 11. C. R. 608. (R.)

Dunne v Doran, 18 I. E. R. 546, followed.—
Brereton v Hutchinson, 2 I. C. R. 648.
(R.); 81. C. R. 861. (C.)

Dunne’s Case, 1 B & J. Rep., adopted. Re
Carpenter, 91. Jur. N.S. 20. (B.)

E

Lord Cottenham’s doctrine, stated in Edwards
v The Grand June. Ry. Co., 1 Myl. & Cr.
650; that an incorporated company are
the successors or assignees of the projec-
tors, and come into existence bound by
all the burdens created by these projec-
tors ; discredited by Lords Cranworth, L.
C., and Brougham. Preston v Liv. Man.
and New. Ry. Co.,1 I Jur. N.S. 217. (H.
L.) [S. C., 5 H. Lds. Cas. 605.]

Ellis v Atkinson, 3 Bro. C. Cas. 565, has been
overruled. Box v Jackson, 6 I. E. R.
190. (C.)

Ellis v Molloy, 1 Mol. 536,is overruled. Joyce
v De Moleyns, 9 I. E. R. 576; 3 Jon. & L.
698. (C.)

Ellis v Nimmo, Ll. & G. temp. Sugden, 333,
observed on. Moore v Crofton, 91. E. R.
844; 3 Jon. & L. 488 (C.)

Ellison v E., 6 Ves. 656, considered. Sim-
monds v Pallas, 8 I. E. R. 335; 2 Jon. &
L. 489. (C.)

Cole

 

189

The Dean of Ely v Bliss, 5 Beav. 581 (R),
disapproved of. Sheil v The Incorporated
Socie ty, 101. E. R. 411. (R.)

England + Downes, 1 Beav. 26, not followed
‘so far as to require security for future
costs from a co-plaintiff, sought to be
withdrawn from the record. King v
Nettles, 31. E.R. 54. (R.)

Ennis v Smith, Jon. & Car. 400, followed. In
re M‘Kenna’s estate, 6 I. Jur. N. S. 330.
(C.A.)

The decree in this cause (Ll. & G, temp. Plun-
ket, 250) reversed. Lyre v Hollier, 2 Dr.
& War. 590. (C.)

F

Farran v Ottiwell, 5 I. L. R. 487, explained:
Stewart v Cottingham, 61. E. R. 248. (R.)

Fawcett v Hodges, 31. E. R. 232; Flan. & K.
100, overruled. O’Flaherty v M‘Dowell,
21. Jur. N. 8. 469 (H.L.) ; 6 H. Lads. Cas.
142.

Ferrand v Hamer, 4 My. & Cr. 1138, observed
on. O’Beirne v O’B., 11. C. R. 152; 3 1.
Jur. 65. (R.)

Re Fitzgerald’s Estate, 11 I. C. R. 278, disap-
proved of, but followed. Thorpev Browne,
10 I. Jur. N. 8.166; 16 1. C. R. 365. (R.)

Fitzpatrick v Hughes, 12 I. C. L. 488, followed.
Lanauze v Reynolds, 10 I. Jur. N. S. 353.
C.)

Fitzsimon v Burton, Finlay on Ren. 317, disap-
proved of. Butler v Earl of Portarling-
ton, 4 I. E. R. 1; 1 Dr. & War. 64; 1 Con.
&L.1. (C.)

Flight v Barton, 3 Myl. & K. 282, considered.
Spunner v Walsh, 101. E. R. 386. (R.)

Flight v Booth, 1 Bing. N. C. 370, considered.
Spunner v Walsh, 10 I. E. R. 386. (R.)

Folkes v Western, 9 Ves. 456, approved of.
Noblett v Litchfield, 7 I. C. R. 575; Dr.
Rep. temp. Napier 158. (C.)

Forth v Chapman, 1 P. Wms. 666, doubted.
Ker v Lord Dungannon, 1 Dr. & War.
528; 1 Con. & L. 335. (C.)

Foster v F., 2 Atk. 259, considered. Allen v
A. 41. E. R. 482; 2 Dr. and War. 307; 1
Con. & L. 427. (C.)

Foster v Ley, 2 Bing. N. C. 269, approved of,
Carr v O’Connor, 3 I. Jur. 185. (C.)
Foster v MacMahon, 11 I. E. R. 287, followed.

Chaytor v Peyton, 31. Jur.N.$.131. (R.)
Francis v Grover, 5 Hare, 39, observed on.
Young v Wilton, 10 I. E.R. 10. (R.)

G
Garde v G., 4 L. Rec. N. S. 115, followed.
Goggin v Downing, 18 I. E. R. 60. (R.)
Gardiner v Blesinton, 1 I. C. R. 64, followed.
Delacour v Freeman, 2 I. C. R. 633. (R.)

Garrard v Lord Lauderdale, 2 R. & Myl, 451
considered. Simmonds v Palles, 81. E.R
335; 2 Jon. @ L. 489. (C.)

Garrard v Lord Lauderdale, 3 Sim. 1; 2B. &
Myl. 451, commented on. Marquis of
Donegal v Greg, 13 I. E. R. 12. (C.)
.

190

Gibbs v Glamis, 11 Sim. 584., observed upon.
Simmonds v Palles, 2 Jon. & L. 489; 8 I.
E. R. 835. (C.)

Gibbs v Howard, Montague’s Rep. 105, upheld.
Re Scott, 8 I. Jur. N. 8. 160. (B.)

Glascock v Ross, 1 I. C. R. 50. (C), fol-
lowed. Kirwan v Lindsay, 21. C. R. 23.
(C.)

Glasscock v Ross, 1 I. C. R. 50, followed.
Drewitt v D., 21. Jur. N. 8. 224. (R.)

Glover v Monckton, 3 Bing. 13, followed.
Mahaffy v Rooney, 5 I. Jur. 245. (C.)

Godsall v Boldero, 9 East, 72, being law no
longer; Semble—That the reasons upon
which Humphrey v Arabin, Ll. & G. temp.
Plunket, 318 ; and Bellv Ahearne, 121. E.
R. 576, proceed, cannot any longer be
supported, so far as they depend upon
any supposed difference between the law
of England and that of Ireland, in cases
of life insurance. Gaggin v Upton, Dr.
Rep. temp. Nap. 427. (C.)

Goodtitle v Miles, 6 East. 494, has been much
shaken. The Incorporated Society v Rich-
ards, 41. E.R. 195. (C.)

Goodtitle v Miles, 6 East. 494, is overruled.
Tennant v T., 71. E. R. 361; 1 Jon. & L.
388. (C.)

Gordon v G., 3 Swanst. 468, commented on.
Malone v M. 3 I. E. R. 536; 8 CL&F.
179; West, 637.

Gray v Knox, 51. E. R. 465, followed. Stough-
ton v Crosbie, 5 I. E. R. 451. (E.E.)
Grimstone’s case, 2 Amb. 705, approved of.
Newcombe v N., 31. E. R. 414. (C.)
Queere—Whether Gubbins v Gubbins, 1 Dr. &

Wal. 160, n., ever was decided, or would
now be treated as a binding authority?
Creed v Carey, 71. C. R. 295; 3 I. Jur.

N.S. 128. (C.A.)

Gubbins v G., 1[Dr. & Wal. 160, z., considered.
Re F. & W. Olden, 9 I. Jur. N. S. 297.
(B.)

H

Ex parte Haigh, 11 Ves. 403, considered.—
Carey v Doyne, 51. C. R. 104. (R.)
Halfhide v Fenning, 2 Bro. C. C., and 2 Dick.,
approved of. Dimsdale v Robertson, 7
IL. E. R. 536; 2 Jon. & L. 58. (C.)

In re Hamilton, 9 I. C. R. 512, dissented
from. Eyre v M‘Dowell, 7 I. Jur. N. 8.
41. (H.L.); 9 H. Lords Cas. 619.

Hamilton v Patten, 1 Cr. & Dix. Ab. Cas.,
208, observed on. O’Beirne v O’B., 1 I.
C. BR. 158; 31. Jur. 106. (C.)

An error in Hancox v Abbey, 11 Ves. 179,
corrected. Bateman v Lord Roden, 7
LE. RB. 240; 1 Jon. & L. 356. (C.)

Handcock v H., 10 I. L. R. 565, doubted.
Handcock v H., 11 I. EgR. 472. (C.)
Hardman v Ellames, 2 M. & K. 745, followed.

Fitzerald v Simpson, 17 I. C. R. 141.

(R.)

 

[DECISIONS.]

Hardwicke v Mynde, Anst. 109, commented
on. Mannix v Drinan, 3 I. E. R. 119.

Hargrave v Holland, 5 I. E. R. 169, overruled.
Doorley v Power, 11 I. E. R. 577. (C.)

Harris v Davis, 1 Col. 416, followed. In re
Sallery, 11 I. C. R. 236. (L.E.C.)

Harrison v H., 1 Keene, 765, observed on.
Hall v Hill, 41. E. R. 27. (C.)

Hartnett v Yielding, 2 Sch. & Lef. 549, com-
mented on. Dyas v Cruise, 8 I. E. R.
407; 2Jon.& L. 461. (C.)

Hatchell v Eggleso, 1 I. C. R. 215, 222, (C.),
followed. Kirwan v Lindsay, 2 I. C. R.
23. (C.)

Hawkins v Gathercole, 1 Sim. N.S. 63, fol-
(oy. Hale v Carpendale, 5 I. Jur. 121.

Hayden v Carroll, 3 ‘Ridg. Parl. Cas. 545,
questioned. O’Flaherty v M‘Dowell, 2 I.
Jur. N.S. 649. (H.L.)—{S. C., 6 H. Lds.
Cas. 142.]

Head v Massy, 2 Mol. 467, overruled. Hughes
v Nash, 31. E. R. 495. (R.)

Henry v Smith, 4 I. E. R. 502, C., commented
on. Blunden v Desart, 5 I. E. R. 57.
(R)

Semble—That the decision in Herbert v Jame-
son, 2 Law Rec., N. S. 92, cannot be up-
held. Standish v Murphy, 21. C. R. 264;
41. Jur. 297. (C.)

Heron v Stokes, 3 I. E. R. 163, partly re-
versed. Heron v Stokes, 4 I. E. R. 284.
cn ae

Heslop v Metcalfe, 3 Myl. & Cr. 183, con-
sidered. Rutledge v R., 2 I. E. R. 290.

Hickson v Aylmar, 3 Mol. 1, disapproved of.
Lawless v Mansfield, 4 I. E. R. 131. (C.)

Hickson v Collis, 10 I. E. R. 447, followed.
Lanauze v Reynolds, 10 I. Jur. N. S. 353.
(C.)

Hill v Stawell, 21. L. R. 302; 2 Jebb & Sy.
389, questioned. Barrett v Bermingham,
41. E. R. 537; F). & K. 565. (R.)

Hill v Stawell, 2 I. L. R. 302; 2 Jebb & Sy-
389, observed on. Wrixon v Vise, 5 I.
E. R. 182.

Humble’s case, 11 I. C. R. 356, followed. In re
the Earl of Limerick’s Estate, 7 I. Jur. N.
S. 65. (L.E.C.)

Humphry v Arabin, Ll. & G. temp. Plunket, is
good law. Bell v Ahearne, 12 I. E. R.
576. (C.)—[But see Gaggin v Upton,
Dr. Rep. temp. Napier, 427. (C.)]

In re Huthwaite, 2 I. C. R. 54; 4 1. Jur. 161,
P.C., followed. In re Lowe, 4 I. C. R.
97. (P.C.)

In re Huthwaite, 2 I. C. R. 54; 4 I. Jur. 161,
P.C., commented on. Woodroffe v Greene,
141.C. R. 224. (R.)

1

Incorporated Society v Sheil, 10 I. E. R. 411,
confirmed. Netterville » Power, 6 I. Jur.
N.S. 123. (R.)
[DECISIONS.]

J

Jackson v J., 51. E. R. 591, not followed.
Walcot v Gondon, 3 I. C. R. 481; 6 I.
Jur. 381. (R.)

Jameson v Farrer, 3 I. E. R. 513, not fol-
lowed. Walcot v Condon, 31. C. R. 431;
6 I. Jur. 381. (R.)

Jenkins v Bryant, 6 Sim. 603, doubted. Mac-
namara v Vincent, 2 I. C. R. 481; 4 I.
Jur. 197. (C.)

Jones v Edney, 3 Camp. 384, considered.
Spunner v Walsh, 10 I. E. R. 386. (R.)

Jones v Lloyd, 10 Price, 63, disapproved of.
Hickson v Aylmar, 3 Mol.1. (R.)

Joy v Campbell, 1 Sch. & Lef. 339, corrected.
Barry v Harding, 7 I. E. R. 313; 1 Jon.
& L. 475. (C.)

Jupp v Geering, 5 Madd. 325; quere respect-
ing that case. Barry v Stawell, 3 I. E.
R.18; Fl. & K.1. (&.)

K

Kaye v. Wall, 4 Hare, 127, considered. Rus-
sell v Beakey, 8 I. E. R. 559. (R.)

Consideration of Lord Clare’s dictum in Kear-
nan v Fitzsimon, 3 Ridg. P. C. 16, that
“the rule of marshalling assets holds only
where it is proper to be done at the death
of the party whose assets are to be mar-
shalled, and can never arise upon any
subsequent fact or accident.” Ellard v
Cooper, 11. C. R.376; 31. Jur. 205. (C.)

Keily v Bodkin, S. & Sc. 211, overruled.
O’Kelly v Bodkin, 3 I. E. R. 390 (E.E.)

Keily v Bodkin, 1 8S. & Sc. 211 (R), consi-
dered. Blunden v Desart, 5 I.E. R. 57. (R.)

Semble—The decision in Kenny v Lynch, 9 I.
E. R. 530, cannot be upheld. Wade v
Williamson, 2 I. C. R. 299. (C.)

Lord Kensington v Phillips, 5 Dow. 61 (C.),
commented on. Dalton v Barry, 51. Jur.
N. 8. 271. (C.)

Kiernan v K., 4 L. Rec. N. 8. 83, disapproved
of. Westropp v Heatly, Fl. & K. 141. (R.)

Knight v Boughton, 12 Beav.312 (R), doubted.
In re Alexander, 4 I. C. R. 257 (R.)

Knight v Selby, 3 M. & Gr. 92; 3 Scott, N. S.,
409, observed upon. Bradshaw v B., 5 I.
E. R. 310. (E.E.)

Ex parte Knox, 3 I. C. R. 57, overruled. In
re Lawless, 4 I. C. R. 230 (P. C.); and
Thackwell v Jenkins, 41. C. R. 248; 71.
Jur. 61. (C.)

Knox v Kelly, 1 Dr. & Wal. 542, commented
on. Hickson v Collis, 6 I. E. R. 524; 1
Jon. & L, 94. (C.)

L

Comments on the English Privy Council’s de-
cision reversing the Lord Chancellor’s
order.—[Ll. & G., temp. Plunket, 503.]—
In re the Earl of Lanesborough, Beat.
Rep. 638. (C.)

LaTouche v O’Brien, 10 I. E. R. 112, observed
on. In re Huthwaite, 2 I. C. BR. 54; 41.
Jur. 161. (P.C.)

 

191

Leahy v Arthure, 1 Hog. 92, observed on.
Coszieva v Gannon, 3 I. E. R. 483. (R.)

Semble—Lee v L., 1 Hare, 617, was rightly de-
cided. Power v Davis, 51. E.R. 448. (R.)

Lee v Moorhead, 2 Mol. 509, overruled. Door-
ley v Power, 11 I. E. R. 577. (R.)

Lewes v Morgan, 4 Dow. P.C. 29; 8 Bli. N.S.
811, doubted. Hickson v Aylmar, 3 Mol.
1. (R.)

Lindsay v Lynch, 2 Sch. & Lef. 1, followed.
Power v The K. & Q. College of Physi-
cians, 7 I. C. R. 104. (R.)

Lloyd v Harvy, 2 Russ. & Myl. 251, observed
on. Hall v Hill, 41. E. R. 27. (C.)

Locke v Southwood, 1 M. & Cr. 411, considered.
In re Mathews’s Estate, 2I Jur. N. S. 47.
CI. E. C.)

Loftie v Forbes. 2 I. E. R. 443, observed on.
O’Keefe v Holmes, 13 I. E. R. 116. (R.)

Long v Short, 1 P. Wms. 403. approved of.
Young v Hassard, 7 I. E. R. 309; 1 Jon.
& L. 470. (C.)

Long v Short, 1 P. Wms. 403, corrected.
Jackson v Hamilton, 91. E. R. 430; 3 Jon.
& L. 702. (C.)

Lynch v L., 6 I. L. R. 131, questioned. Creagh
v Blood, 8 I. E. R. 688. (C.)

M

M‘Auley v Clarendon, 8I. C. R. 568; Dr.
Rep., temp. Napier, 433, approved of.
Eyre » M‘Dowell, 7 I. Jur. N.S. 41.
(H.L.); 9 H & Lds. Cas. 619.

M'‘Dowell v Wheatley, 7 I. C. R. 562, com-
mented on. In re Smith v Ross, 11 I. C.
R. 397; 61. Jur. N. S. 72. (B.)

Malcolm v Charlesworth, 1 Keen, 63, observed -
on. Gardiner v Blesinton, 1 I. C. R. 64;
31. Jur. 116. (R.)

Marriott v Cotton, 2 Car. & Kir. 553, doubted.
Macnamara v Vincent, 2 I. C. R. 481; 4
I. Jur. 197. (C.)

Martin v M‘Causland, 3 I. L. R. 113, disap-
proved of. Kirkwood v Lloyd, 111. E.R.
561. (R.)

Martin v M‘Causland, 3 I. L. R. 113, is not
law. Kirkwood v Lloyd, 12 I. E. R. 585.(C.)

Massy v Parker, 2 Myl. & K. 174, is overruled.
Marken v Magrath, 3. I. E. R. 570. (E. E.)

Maxwell v Mitchell, 1 I. E. R. 359, doubted.
French v Macale, 2 Dr.& War. 269; 1 Con.
& L. 459. (C.)

Mirehouse v Scaife, 2 Myl. & Cr. 695, com-
mented on. Conron v C.,7H.L. Cas. 168.

Molony v Quail, 4 Law Rec. N. S. 107, disap-
proved of. French v Macale, 2 Dr. &
War. 269; 1 Con. & L. 459. (C.)

Moore v Faulkner, 1 Anst. 11, observed on.
Jones v Kearney, 1 Dr. & War. 159; 1
Con. & L., 34; 41. E. R. 74. (C.)

Moore v Keogh, 10 I. C. R. 501, not followed.
Corker v C., 15 I. C. RB. 304. (C.A.)

Morgan v Inman, 1 Taunt, 292, disapproved
of. Incorpd. Soc. v Richards, 4 I. E. R.
194. (C.)
192

Morgan v Scudamore, 2 Ves. Jun. 813; 3 Ves.
195, considered. Bowyer v Beamish, 8 I.
E. R. 63; 2 Jon. & L. 228. (C.)

Moriarty v Martin, 3 I. C. R. 26, disapproved
of. King» K., 151.C. R. 479. (C.)

Morris v M., 17 Beav. 198, followed. In re
Sallery, 11 I. C. R. 236. . E. C.)

In re Moylan, 16 Beav. 220, disapproved of.
Dunlevie v Hort, 6 I. C. R. 82; 21. Jur.
N. 8. 194. (R.)
[Reversed 61. C. R. 99; 21. Jur. N.S.
293. (C.A.)

Murtagh v Tisdall, 2 I. E. R. 41, observed on.
Barrett v Bermingham, 4 I. E. R. 537. (R.)

N

Nason v Peard, 12 I.C. R. 30, is overruled by
Sloan « M‘Callen, 8 I. Jur. N.S. 201.—
Cooke v Franklin, 16 1. C. R. 469. (R.)

Newton v Greene, 4 Sim., 141, is overruled.—
Marken v. Magrath, 31. E.R. 570. (E.E.)

Noel v Bewley, 3 Sim. 103, doubted. Smith
v Osborne, 6 H. L. Cas. 375; 3 I. Jur.
N.S. 41. CH.L.)

Norton v Frecker, 1 Atk. 524, approved.—
Allen v A., 41. E. R. 482; 2 Dr. & War.
307; 1 Con. & L. 427. (C.)

oO
O’Kelly v Bodkin, 3 I. E.R. 390. (E.E.), con-
sidered. Blunden v. Desart, 5 I. E. R.
57. (R.)
O’Kelly v Bodkin, 31. E. R. 390, followed.—
Hutchins v Sullivan, 11 I. E. R. 443. (R.)

Ould v Griffin, 3 I. E. R. 565, disapproved of.
Madden v Davis, Fl. & K. 478. (R.)

P

Parry v Wright, 1 Sim. & Stu. 369; 5 Russ.
142, considered. Walcott v Condon, 3 I.
C.R. 1; 51. Jur. 49. (C.)

Parsons v Freeman, Amb, 115, considered.—
Barry v Harding, 7 I. E. R. 313; 1 Jon. &
L. 475. (C.)

Peacocke v Pares, 2 Keen, 689, observed on.
Tennison v Moore,13 I. E.R. 424. (R.)

Peake v Gibbon, 2 Russ. & My. 354, followed.
Sproule v Oats, 21. E. R. 323.

Peake v Gibbon, 2 Russ. & My. 354, must be
considered as overruled. Betham v Mit-
chell, 51. E.R. 219. (R.)

Peake v Gibbon, 2 Russ & My. 354, not fol-
lowed. Hunter v. Pugh, 1 Hare, 307, 2.

Semble—That the doctrine of constructive
notice was carried too far in Penny v
Watts, 1 Mac. & Gor. 150; which case
cannot be considered established law.—
Abbott v Geraghty, 4 1.C. R. 15. (C.)

Perrott v O'Halloran, 21. E. R. 428, observed
on. Rotherham v Webb, 4 I. E. R. 57.
(E.E.)

Phillipps v Garth, 3 Bro. Ch. Cas. 65, gave an
erroneous meaning to the words “ next-of-
kin.” Heron v Stokes, 4 I. E. R. 296.
(C.)

 

[DECISIONS.]

Phipps v Steward, 1 Atk. 286, observed on.—
Tom v Deane, 8 I. E.R. 39. (R.)

Pope v Garland, 4 Y. & Col. 394, considered.
Spunner v Walsh, 10 I. E. R. 386. (R.)

Power v Shiel, 1 Mol. 312, observed on. Jn re
Herons, 31. E.R. 589; Fl.& K. 3380. (R.)

Q
The Queen v O'Donnel, 6 I. E. R. 643, ap-
proved of. O’Connor v Malone, 4 I. Jur.
205. (C.)

R

Rawlings v Jennings, 13 Ves. 39, followed.
Heron v Stokes, 4 I. E. R. 292. (C.)

Rice v R., 2 Drew, 72, followed. In re Glen-
gall Estate, 5 I. Jur. N. 8. 221. CL.
E.C.)

Richards v Molony, 2 I. C. R. 1, overruled.
In re Carew, 41.C. R. 112. (P.C.)

Richardson v Horton, 7 Beav. 112, disapproved
of. Hynes v Redington, 10 I. C. R. 206.
(.)

Roberts v Marchant, 1 Ph. 370, explained.
Fowler v Lightburne, 11 I. C. R. 495; 6 I.
Jur. N.8.93. (R.)

Roberts v Walker, 1 Russ. & Myl. 753, ap-
proved of. O’Kelly v Chamberlaine, 7 I.
Jur. 310. (C.)

Roddy » Fitzgerald, 6 H. Lds. Cas. 823, ob-
served on. Burke v Tully, 91. Jur. N.S.
344. (C.)

Roe v Avis, 4 T. R. 605, has been overruled.
Tenr®nt v T., 7 I. E. R. 361; 1 Jon.
& L.388. (C.)

Rogers v Peterson, 4 Mee. & W. 588, not fol-
lowed. In re Lawlers, 3 I. E. R. 102. (R.)

Rolleston v Morton, 4 I. E. R. 149, approved
of. Henry v Smith, 4 I E. R. 505;
2 Dr. & War. 381; 1 Con. & L. 506.
(C.)

Rowe v , 18 Ves. 261, has been greatly
modified. Blackwood v Burrows, 4 I. E.
R. 610. (R.)

Re Ryan, 3 I. C. R. 38, followed. In re O’Con-
nor, 1I. Jur. N.S. 198. (B.)

5

Savage v Carroll, 1 B. & B. 265, disapproved
of. In re Norcott’s Estate, 14 I. C. R.
315. (L.E.C.)

Savory v Dyer, Amb. 10, is settled law. He-
ron v Stokes, 4. E.R. 292. (C.)

Scott v Bargeman, 2 P. Wms. 68, approved of.
Graves v Waters, 10 I. E. R. 234. (R.)

Sharply v Hornsby, 4 I. Jur. 38, followed.
Foster v Hornsby, 2 I. C. R. 426: 5 I.
Jur. 279. (R.)

The rule in Shelley’s case, 1 Rep. 93, b., as
‘applicable to wills, considered and ex-
plained. Montgomery v M., 8 I. E. R.
740. (C.)

Shepherd v Wilson, 4 Hare, 392, observed
on. In re Lane’s Estate, 5 I. Jur. N.S.
82. (C.A.)

 
[DECISIONS.]

Skye v Barnes, 3 Mer. 335, approved of. Graves
v Waters, 10 I. E. R. 234. (R.

Lord Sligo v O'Malley, 3 I. E. R. 527, ques-
cea Burt v Bernard, 5 I. E. R. 427.
")
Smith v Vaughan, 8 Vin. Ab. 381, Dev. Z. (C.)
pl. 32, disapproved of. Kimberly v Tew, 4
Dr. & War. 139; 2 Con. & L. 871. (C.)

Spencer v §., 8 Sim. 87, observed on. Tenni-
son v Moore, 13 I. E. R. 424. (R.)

Spong v §., 3 Bli. 95, corrected. Barry
Harding, 7. I.E. R. 318; 1 Jon. & L, 475.
(C.)

Spong v 8, 1 Dow. & C. 365, approved of.
Conron v C., 7 H. L. Cas. 168.

Sproule v Oats, 2 I. E. R. 323, overruled.
Betham v Mitchell, 51. E.R. 219. (R.)

Sterndale » Hankinson, 1 Sim. 393, observed
on. O'Kelly v Bodkin, 3 I. E. BR. 390.
(E.E.)

Sterndale » Hankinson, 1 Sim. 393; 3 Russ.
130, applied in principle. Bermingham
Burke, 9 1. E.R. 86; 2 Jon.& L. 699. (C.)

Stokes » Coltsman, 1 I. C. R. 44, followed.
Parnell » P., 7 I. C. R. 322; 31. Jur.
N.S. 382. (R.)

Stoughton v Crosbie, 5 I. E. R. 451, followed.
Marquis of Donegal v Greg, 13 I. E. R.
12. (C.)

Strode v Russell, 2 Vern. 621, approved of.
Incorp. Soc. v Richards, 41. E. R. 194. (C.)

T

Talbot v The Earl of Radnor, 3 My?. & K. 254,
examined and considered. Fairtlough
v Johnstone, 16 1. C. R. 442. (R.)

Taylor v Gorman, 1 Dr. & Wal. 235, n., ex-
plained. Kelly v K.11. E.R. 317. (8.)

Taylor v Gorman, 6 I. E. R. 330; 7 I. E.R.
259 (C.), considered. Edge v Billing, 1 I.
Jur. 285. (E.E.)

Taylor v Gorman, 1 Dr. & Wal. 285, n., ob-
served on. Watson v Fitzpatrick, 11 I.
C. R. 213. CR.)

Taylor v Stibbert, 2 Ves. Jun. 440, commented
on. Steele v Mitchell, 31. E. R.11; 2 Dr.
& Wal. 568. (C.)}—[See next case. ]

Taylor v Stibbert, 2 Ves. Jun. 487, followed.
Marquis of Donegal v Greg, 13 I. KE. R.
12. (C.)—[See preceding case. ]

Tennison v Moore, 13 I. E. R. 424, followed.
In re Norcott’s Estate, 14 I. C. R. 315.
(L.E.C.)

Thomas v Cook, 2B. & Ald.119. Its doctrine

does not apply to estates of freehold.
Creagh v Blood, 8 I. E. R. 688. (C.)

Thomas v Pinnell, 15 Beav. 148, disapproved
of. Dunlevie v Hort, 6 I. C. R. 82; 21.
Jur. N. S. 194. (R.)—[Reversed: 61. C.
R. 99; 21. Jur. N.S, 293. (C.A.)]

In re Thompson, 12 Sim, 392, disapproved of.
Spunner v Walsh, 10 I. E. R. 214. (R.)

Tipping v Clarke, 2 Hare, 383, considered.
Russell v Beakey, 8 I. HE. R. 559. (R.)

 

193

Toulmin v Steere, 3 Mer. 210, considered.
Walcott v Condon, 3 1.C. R. 1; 51. Jur.
49. (C.)

Townsend v Stangroom, 6 Ves. 328, commented
on. Davies v Fitton, 41. E. R. 613. (C.)

Trafford v Boehm, 3 Atk. 440, explained.
Browne v Maunsell, 5 I. C. R. 351; 1
I. Jur. N. 8.197. (C.)

Tweddell v T., 2 Bro. C. C. 101, considered.
Barry v Harding, 7 I. E. R. 318; 1 Jon.
& L. 475. (C.)

Vv

Lord Wensleydale’s judgment in Vernon v.
Wright, 7 H. Lds. Cas. 66, approved of.
Uppington v Tarrant, 71. Jur. N. 8. 199.
(C.A.)

Vickers v Oliver, 1 Y. & C., C.C. 211, ap-
proved of. Ellard v Cooper, 1 I. C. R.
376; 31. Jur. 205. (C.)

Villareal v Lord Galway, Amb. 682; 1 Bro. C.
Cas. 292, disapproved of. Hall v Hill, 4
I. E. R. 27; 1 Dr. & War. 94; 1 Con. &
L. 120. (C.)

Ww

Waite v Bishop, 1 Cr. Mee. & R. 507, decides
expressly—that a sequestration is not
retrospective, and attaches the future
accruing profits only. Egan v Heenan, 3
LE. R. 53. (R.)

Walfordv. Marchant, 2 B.& Ad. 57, considered.
Blunden v Desart, 5 I. E. R. 57. (R.)

Walker v Countess of Beauchamp, 6 Car. & P.
552, not followed. Reilly v FitzGerald, 6
I. E. R. 348 ; Dr. Rep. temp. Sug. 122. (C.)

Walker v Bell, 2 Mad. 21, observed on. Mor-
rogh v. Hoare, 51. E.R. 198. (R.)

Wallace v Pomfret, 11 Ves. 542, disapproved
of. Hall v Hill, 1 Dr. & War. 94; 1 Con.
& L. 120; 41. E.R. 27. (C.)

Walpole v Conway, Bernard’s Rep. 156, fol-
lowed. Warner v Latouche, 1 I. Jur.
N.S. 34. (C.)

Walsh v W., 111. E. R. 609, observed on. Le
Grand v O’Neill, 21. C. R. 569. (R.)

Waring v Ward, 7 Ves. 336, approved of. —
Jones v Kearney, 4 I. E. R. 81; 1 Dr. &
War. 134; 1Con.& L. 34. (C.)

Warrens v O'Shea, 5 Law Rec. N. 8. 77, dis-
approved of. Kirkwood v Lloyd, 11 I. E.
R. 561. (R.) :

Weall v. Rice, 2 Russ. & Myl. 251, observed on.
Hall v Hill, 4 1. E.R. 27; 1 Dr. & War.
94. (C.)

Weld v Tew, Beat. 271, approved of. Lord
Leitrim » Enery, 6 I. E.R. 368. (C.)
White v Barber, 5 Bur. 2703, approved of —
In re Lindsay, 3 I. C. R. 239; 5 I. Jur.

97. (C.)

Whitworth v. Gaugain, 3 Hare, 421, approved
of. Abbott v Stratton, 91. E. R. 233; 3
Jon. & L. 603. (C.)

Wilde v Gibson, 1 H. Lds. Cas. 605, considered
and explained. Beale v Billing, 13 I. C.
R. 250. (C.)

25
194

The rule in Wild’s case, Rep. 16 u., does not
apply to personal chattels. Heron v
Stokes, 4. I. E. R. 284. (C.)

Williams v W., Pr. in Ch. 319, explained and
observed on. Creagh » Blood, 8 I. E. R.
688. (C.)

Wilson v St. Leger, Hayes Rep. 591; 4 Law
Rec. 457, n., questioned. In re Colthurst,
4 I.E. BR. 455, (R.)

Winter v Bold, 2 Sim. & 8. 507, observed on.
In re Lane’s Estate, 5 I. Jur. N. S. 32.
(C.A.)

Winter v Homan, 6 I. C. R. 479, overruled.—
Sweeny v Fleming, 14 I. C. R. 23; 81.
Jur. N. 8. 241. (C.A.)

Wynch, Ex parte, 5 De G., Mac. & Gor. 188, ex-
plained. Monteagle v Langrishe, 5 I.
dur. N.S. 408. (C.)

Y

The practice in Ireland is not at variance
with Young v Lord Waterpark, 13 Sim.
204, and Cox v Doleman, 2 De Gex, M‘N.
& Gor. 592. Inre Wyse, 4 I. C. R. 297.
(P.C.) ,

Z

Zouch v Parsons, 3 Burr. 1794, is good law.
Allen v A., 4 I. E. R. 472; 2 Dr. & War.
307; 1 Con. & L. 427. (C.)

 

DECLARATION OF TRUST.
See Fraups, Statute or, [I—Trvsz, VIII.

 

DE CONTUMACE CAPIENDO.

 

DECREE.

— Interest on. See INTEREST, PECUNIARY.

— For Administration of Assets, Costs of. See
Practice, Costs.

— For Account. See Practice, DECREE.

— For Administration and Distribution.
Practice, DECREE.

— For Foreclosure and Redemption. See Prac-
TICE, DECREE.

— Pro Confesso. See Practicr, DECREE.

— In former causes, where Evidence. See Prac-
TICE, EVIDENCE.

[See 13 & 14 Vic., c. 60; 15 & 16 Vic., c. 55.]

See

 

DEDUCTIONS.
See Annuity, V.

 

DEEDS AND CONVEYANCES.

— Of Composition Deeds. See Desror anp
Crepitor, VII.

— Appointment of Guardians by Deed. See
GuaRDIAN AND Warp, I.

— Proof, and loss of. See Practice, EVIpENCE.

— When evidence will be admitted to expound them.
See Practicr, EvipENCE.

— Inspection of. See Practice, INSPECTION OF
DEEDs.

— Delivery up of. See Practice.

— Production. See Practicr, PRODUCTION OF
DEEDs.

— Presumption of. Sce Presumption, LI.

 

[ DECISIONS.—DEEDS. ]

— Of Title. See Trrix, I. :
— Revocation of Will by Deed. See Wi,
VIII.

 

I. GeNERALLY—MIsTakE IN—REFORMATION

oF.
1. Generally, validity of.
2. Mistake in, reformation of, relief in
respect of.

 

II. Construction oF.

1. Generally.

2. General rules for construction of.

8. Touching Recitals, Provisoes, Sav-
ings, §c.: their effect, &c.

4. Respecting words : Descriptive words :
words of Limitation and of Pur-
chase.

 

Ill. Votcentary Dezps, Conveyances, &c.
1. In general.
2. When good as against Creditors.
3. When void as against Creditors.

 

IV. Deposit or.

V. Frauputent ConveYaNnces AND ASSIGN-
MENTS, &e. s
V.* Revocation oF WiLL By DEED.
VI. OptarneD By Fraup, DuREss, UNDUE
INFLUENCE, OR MIsSREPRESENTATION,
ESPECIALLY OF RELEASES SO OBTAINED.
1. Obtained by fraud.

2. Obtained by duress, undue influence,

misrepresentation.

3. Releases so obtained.

 

VII. CancEttation, DELIVERING UP, AND
AVOIDANCE OF.
VIII. Lost Deeps.
IX. SuprREssION AND SPOLIATION OF.
X. Parties to: THEIR RicuTs.
XI. Execution or.
XII. Reeistry, Enrotment, &c., AND PRIO-
RITY, SO FAR AS AFFECTED BY THEM.

1. In general.
2. Priority, and how acquired.
3. Priority, how lost.

 

I. Deeps GENERALLY: Mistake in: ReEFor-
MATION OF.
1. Generally: their validity. .
2. Mistake in: Reformation: Relief in
respect of.

 

I. 1. Deeds generally: their validity.

1. The deed of an infant, which takes effect
by delivery, is voidable only, and not void.
A voidable deed is valid until some act isdone
to avoid it, and it lies upon those who claim
in opposition to the deed to show that such
act has been done.—Allen v. A., 4 1. E.R. 472;
2 Dr. & War. 307; 1 Con. & L. 427. (C.)

2. A tenant in tail, upon the marriage of
his eldest son, conveyed the entailed lands as
if he were seized in fee, to trustees, for aterm
of years, to secure a jointure for his own wife,
and a jointure for the intended wife of his
son, in case certain other property upon which
Generally.

the latter was previously charged should be
sold: and subject thereto to the use of himself
for life, remainder to other trustees for another
term, to raise portions for younger children ;
and subject thereto to the use of the son for
life; remainder, subject to a third term, to his
first and other sons in tail. No fine or reco-
very was ever levied or suffered by the father
or by the son. A bill was filed to raise the
portions. A decree directed a sale of the
term. After the decree, the eldest son of the
marriage, his father and grandfathér both
being dead, executed a disentailing deed, and
conveyed the lands in fee to a person not a
party to the suit, expressly subject to the
term. That person afterwards conveyed the
fee to the father’s widow, who, being a party
to the suit, had allowed the decree to be
made upon sequestration against her. The
M. R. overruled the purchaser’s objections to
the title. On appeal—Held, that the acts of
the eldest son operated as a confirmation of
the settlement, and that a good title to the
term could be made.

That the widow having acquired her title
after the decree, would be bound to give effect
to that decree out of it. ;

That the judgments entered pending suit,
against the eldest son of the marriage and his
vendee, were not objections to the title—
Massey v. Batwell, 51. E. R. 382; 4 Dr. & War.
56. (C.)

1

 

I. 2. Mistake in deeds: Reformation of: Relief in
respect of.
1. Defect in a legal conveyance not supplied

in favour of a natural child.—Blake v. B.,
Beat. Rep. 575. (C.)

2. Semble—A limitation to trustees to pre-
serve contingent remainders, not confined to
the lifetime of a tenant for life, will not be
cut down to that life, if there are contingent
remainders which may, during a longer period,
require protection.—Rochford v. Fitzmaurice,
41. E.R. 375; 2 Dr. & War.1; 1 Con. & L.
158. (C.)

3. In a suit instituted to correct a mistake
in a deed by the articles of agreement upon
which it is founded, parol evidence of a stipu-
lation between the parties, not contained in
the articles, will not be admitted.—Davies v.
Fitton, 2 Dr. & War. 225; 41. E. RB. 612. (C.)

4. There is no objection to correct a deed
by parol evidence when there is anything in
writing beyond the parol evidence to go by;
but where there is nothing but the recollec-
tion of witnesses, and the defendant by his
answer denies the case set up by the pté., the
ptf. is without remedy.

In a suit to reform a mistake in a lease,
principally by parol evidence, what the de-
fendant admits or denies is of the utmost
importance.

In a suit to reform a deed, on ground of
mistake, it must appear that the mistake was
mutual.

A mistake on one side may be a ground for
rescinding, but not for correcting a contract.

[DEEDS.]

 

Reformation of. 195

A lease, containing a quantity of land
larger than was intended to be demised, was
rectified as to the overplus. Semble—To effec-
tuate this by surrendering the overplus might
be dangerous, as the condition of re-entry for
non-payment of rent might be affected by the
surrender.—Mortimer v. Shortall, 2 Dr. & War.
363; 1 Con. & L. 417. (C.)

5. Bill to reform a marriage settlement, on
the ground that it was not in conformity with
the settlor’s contract.

The settlement was inconsistent with his
instructions, so far as they appeared in evi-
dence. His prior and subsequent acts and
declarations consisted with the instructions,
but not with the settlement. It did not ap-
pear what was the final contract between the
parties. Fraud was charged, but not proved.
Held, that relief could not be granted on
the ground of mistake, since it was possible,
though not probable, that the settlor had
agreed to make a settlement such as had been
in fact executed.

The bill was dismissed, but without costs.—
Bunbury v. Lloyd, 1 Jon. & L. 638. (C.)

6. A., seized of a life estate, remainder to
B. in tail, in several denominations, entered
into a voluntary agreement with B. to resettle
the lands; and that A. should be made tenant
for life in one portion, X., as of his former
estate, remainder in tail to B. A settle-
ment, supposed to embody this agreement,
having been prepared, X. was, by mistake,
thereby limited to B. for life only ; remainder
to his heirs male in strict settlement. The
mistake being discovered after its execution
and after A.’s death, but before the birth of
any issue of B., a bill was filed by B. to have
the mistake amended.—Held, that this Court
could not bind the rights of the unborn issue,
so as to divest them of any legal estates there-
under, or amend or correct the deed itself;
but only declare the rights of the parties ac-
cording to their original intention and con-
tract.—Richards v. FitzGerald, 91. E. R. 486.
(E.E.)

7. A defendant who had been ordered to
account for the produce of a policy of insur-
ance in terms absolutely assigned to him, but
held, under the circumstances of the transac-
tion to have been assigned by way of mort-
gage, decreed his costs as in an ordinary re-
demption suit, and also the costs of proceed-
ing for the amount of the policy—Murphy v.
Taylor, 11. C. R. 92; 31. Jur. 85. (C.)

8. S. agreed to grant to B. a lease of the
lands of T. The agreement contained a pro-
vision that the lease should “give exclusive
shooting and coursing, but not fishing.”

Semble—That S. was entitled to the exclu-
sive right of fishing in the premises agreed to
be demised,

B. had previously held T. under a lease
from §., which contained an express exception
of fishing, fowling, and shooting; and there
was evidence that S. had intended to retain
the exclusive right of fishing in the premises
agreed to be demised; but S. had himself
196 Reformation of.

drawn up the agreement.—Held, that the evi-
dence of intention was admissible in favour of
S., in a suit instituted by B. for specific per-
formance of the agreement; and that B. was
not entitled to specific performance of the
agreement without giving to S. the exclusive
right of fishing.

Specific performance of an agreement for
a lease was resisted, on the ground of forfei-
ture by breach of conditions; and there being a
question whether such forfeiture had occurred,
there was not sufficient evidence of the facts
upon which that evidence was raised. Held,
that specific performance of the agreement
ought to be decreed, but the lease be ante-
dated, so as to permit the question to be tried
at law.—Browne v. Marquis of Sligo, 101. C. R.
1; 51. Jur. N.S. 85. (C.)

1. By a written agreement, A. agreed to let
to B. a slip of ground, “ bounded on the north
by a road dividing said lot from Mr. T.’s
holding.” At the corner of the agreement,
under the signatures, was the following memo-
randum, signed with B.’s initials:—“The little
angle at the road, opposite to T.’s, to be added
tothe road.” The little angle was at the south
side of T.’s road. The lease executed, in pur-
suance of the agreement, stated the lot to be
bounded, “on the north by a road dividing said
lot from Mr. T.’s holding ;” and referred to a
map, which erroneously described T.’s road as
a straight line, instead of a curve, and did not
contain the memorandum at foot of the agree-
ment.

Held, that parol evidence was not admissi-
ble to show that it was intended that the
angle should be excluded from the lease.

That according to the true construction of
the agreement, T.’s road, as it existed at the
time, was to be the northern boundary; but
that B. was bound to throw the angle into
the road, and that a covenant to that effect
should have been inserted in the lease, assum-
ing parol evidence to be admissible, the evi-
dence of the parties being conflicting as to the
intention to include the angle in the lease.

Held, that the lease could not be reformed
in that respect.

B. undertaking, by the decree, to throw the
angle into the road, the petition was dismissed
with costs, except so far as it might be neces-
sary to enforce the undertaking.—Gray v.
Boswell, 181. C. R. 77. (R.)

2. G. agreed in writing to let to B. a plot of
ground “bounded on the north by a road
dividing said lot from Mr. T.’s holding.” On
one corner of the agreement B. indorsed and
signed with his initials this memorandum :—
“The little angle at the road opposite to T.’s
to be added to the road.” Ina lease, executed
in pursuance of this agreement, the northern
boundary of the demised premises was stated
to be “the road dividing the said lot from Mr.
T.’s holding.” No provision for adding the
angle to the road was made. G. instituted a
suit to reform the lease by excepting the angle
from the demise. Held, that no relief could
be granted, because the petition sought to
retain the angle in G.’s dominion without

[DEEDS.]

 

Construction of.

obliging him to add it to the road.— Gray v.
Boswell, 81. Jur. N. §. 81. (C.A.)

3. Agreement for a lease, with a covenant
that the lessee should build a wall round the
land. A lease was executed by the lessor, but
not by the lessee, which did not contain the
covenant to build. Held, after the death of
the lessee, that a suit could not be maintained
against his administrators, having assets, for
the spegific performance of the original agree-
ment.

Semble—The suit should have been to re-
form the lease, by adding the covenant to build
the wall—Blosse y. Prendergast, 13 I. C. R.
373. (R.)

4. A., seized in fee of the lands of “Baskin,”
and for life in entailed lands, was empowered
by his marriage settlement to charge the
entailed estates with £5000 for his own use.
A. mortgaged them to his brother, to whom,
as the deed recited, their mother had be-
queathed arrears of jointure (amounting to
more than £5000) charged upon those estates,
which A., to secure those arrears, thereby
charged with £5000. Among the names of
the townlands mortgaged occurred “ Baskin.”
Held, that “Baskin” had been introduced by
mistake, and was not charged with the mort-
gage debt.

A., by subsequent will, reciting that all his
estates except Baskin and the townland of K.,
were settled on his eldest son, devised (with-
out mentioning what) to trustees in trust for
his son B.; and then devised to the trustees,
in trust for his son C., K., together with other
specified premises. Held, that B. was abso-
lutely entitled to Baskin.

A. thereby further charged “said property,
according to the power given me, with a sum
of £1000 sterling for my daughter Julia, in
addition to her share of the sum charged
by my marriage settlement.” At A.’s death
the mortgage debt amounted to only £4688 ; so
that £312 became thereby absolutely dis-
charged from the mortgage. Held, that Julia
was absolutely entitled to that sum.—Jont-
gomery v. M., 101. Jur. N.S. 102. (C.)

 

II. Construction or DEEDs.

1. Generally.

2. General Rules for their Construction.

3. Respecting Recitals, Provisoes, Savings, §c.

4. Respecting Words ; Descriptive Words ;
Words of Limitation and Purchase.

 

Il. 1. Construction of Deeds, generally.

5. By post-nuptial settlement premises were
conveyed to trustees to the use of A., the
husband, for life; remainder to trustees to
preserve, &c.; remainder to the use of B. (A.’s
eldest son) and his heirs; in default, to the
second, &c., and every other son of A. severally
and successively in t. m.; remainder to the
use of A.’s daughters, share and share alike,
as tenants in common in t. m.; remainders
over. B. died withoutissue. Held, that upon
the decease of B. (who had been only tenant

 

in tail under the limitations in the settlement)
Construction of.

without issue male, A.’s second son was en-
titled only to an estate in t. m., and did not
take as B.’s heir-at-law.— Wall v. Wright, 1 Dr.
& Wall. (C.)

1. Evidence of a consideration not expressed
in a deed is admissible to show that it was not
voluntary, unless inconsistent with the deed
itself — Nixon v. Hamilton, 1 I. E. R. 55; 2 Dr.
& Wal. 364. (C.)

2. In the construction of deeds (as well as
wills) the Court will adopt the general inten-
tion, even against express words.—Clayton v.
Glengall, 1 Dr. & War. 1; 1 Con. & L. 311. (C.)

3. By deed, in consideration of £9000, pur-
ported to be paid to V. and X. by C. and D.,
V. granted to C. and D. an annuity for three
lives charged upon his estate, and further
secured by the joint and several bond and
warrant, &c., of V. and X.; but witha stipu-
lation that execution should not be issued on
the judgment entered on the bond until the
annuity should be forty days in arrear. The
deed contained covenants for title and further
assurance by V., and a covenant by V. and X.
to pay the annuity. Held (reversing the de-
cision in Eyre v. Hollier, Ll. & G. temp. Plun.
250), that, upon the true construction of this
deed, X. was not merely a surety, but was a
principal.

The question—Whether a party is a princi-
pal or merely a surety in the grant of an an-
nuity ?—is to be determined on the terms of
the instrument ; extrinsic evidence is not ad-
missible for that purpose—Aollier v. Eyre, 2
Dr. & War. 590; 9 Cl. & F. 1. (HLL)

4. By a post-nuptial deed, the husband, to
secure his wife a jointure, which she was en-
titled to under an ante-nuptial settlement, and
from which she had by fine released part of
the lands charged with it, and in order to
make a provision for his children by her, cove-
nanted with trustees to convey lands of which
he was seized in fee, “in such manner as coun-
sel for the trustees should advise; upon trust
to permit him to receive the rents for life, re-
mainder to the trustees to preserve, &c.; re-
mainder to H., the eldest son of the settlor,
for life; remainder “to the use of the heirs
males of the body of the said H.;” and in de-
fault of such issue, to the use of T., the second
son of the settlor, for life; remainder to the
“issue male” of the second son; remainder
to the third and other sons of the settlor, and
the heirs male of their bodies. The deed enabled
the settlor to charge the lands with a sum for
his own benefit, in addition to a sum charged
for younger children. It also empowered him
and his sons to lease for thirty-one years or
three lives, and tojointure. Held, that the eldest
son of the settlor took only an estate for life.

The only difference between an executory
trust raised by a voluntary settlement, or a
will, and such atrust raised by an an ante-
nuptial settlement, is, that in the latter the
object of the settlement supplies an intention
to create a strict settlement, and that in the
former such an intention must appear on the
face of the instrument.—Rochfort v. Fitemau-

[DEEDS.]

 

197

ree, 41, E, R. 875; 1 Con. & L. 158; 2 Dr.
& War, 1. (C.)

5. By marriage settlement, money was vested
upon trust to pay the interest to the wife for
life, for her separate use; and after her de-
cease, if she left issue by her intended hus-
band one or more children, upon trust to apply
the interest to their maintenance until they
should attain age, or their days of marriage ;
and from the time such child or children
should attain their age or day of marriage,
upon trust to pay the principal unto such
child or children, if more than one, subject to
such limitations as the husband should by
deed or will appoint; in default of such ap-
pointment, as the wife should by deed or will
appoint; in default, to such child or children
in equal shares ; if more than one, absolutely ;
andlif the husband survived the wife, and there
should be no child of the marriage, or issue of
such child, living at the time of her death,
then in trust for the husband absolutely; and
if the wife survived the husband, and there
should be no child of the marriage, or issue of
such child, living at the time of his death, then
to the wife absolutely. The husband died,
leaving his wife and one child surviving. The
child afterwards attained age, married, and
died in the lifetime of the wife. Held, that
she took a vested interest in the trust fund.—
Wynne v. Brady, 51. E.R. 239, (E.E.)

Generally.

6. A conveyance by lease and release does
not operate by way of estoppel.—Stackpoole
v. S., 2 Con. & L. 489; GI. E.R. 18; Loydv.
L., 2 Con. & L. 592. (C.)

7. A., being indebted to B., conveys lands
in trust out of the interest, proceeds, or
annual rent, to pay the head rent, and also
the premiums of insurance on the life of A.
for £500; and to pay over to B. £400, with
legal interest at £6 per cent. for every year
until the same shall be paid off and dis
charged; and from and after the payment
thereof to reconvey to A. or his assignees.
The policy was aahaet by a separate deed to
the trustee to secure the £400. Held, that B.
was not a mortgagee under this deed, and
was not, therefore, entitled to have the lands
sold, but should be paid out of the rents and
profits, and have a continuing receiver ap-
pointed for that purpose.— Taylor v. Emerson, 2
Con. & L. 558; 6 I. E. R. 224; 4 Dr. & War.
117. (C.)

8. Two persons, in whom was vested under
a statute the right to the tolls and profits
of a road for 50 years, by deed conveyed their
right and all their estate and interest therein
to A., B., and C., upon specified trusts; and,
subject thereto, in trust for A., B., and C.,
their executors, &c., as tenants in common,
for their own use, for the residue of the term,
The deed provided that, if any of the trustees
should be unable to join in the direction and
superintendence of the road, it should be law-
ful for any two of them to act of themselves
in managing the road, and in all other things
relating to the execution of the trusts. C,
was the defendant.
198 Construction of.

The interest of A. and B., under the deed,
vested in the plaintiff. C. took upon himself
the entire control and management of the
road, and insisted upon his right thereto, and
upon being paid a salary for his trouble and
supervision. The plaintiff filed a bill dis-
puting the alleged right. Held, that C. was
entitled to the sole management of the road,
but that his claim for salary could not be
maintained.— Taylor v T., 4 Dr. & War. 124.
(C)

1. Construction of deed and its impeach-
ment, for being voluntary, as against credi-
tors.— Myers v. The Duke of Leinster, 71. E.
R. 146. (C.)

2. A. and B., having a joint power of re-
vocation and new appointment, by deed and
fine, reciting an agreement that A. should
in a specified manner secure to B. payment
within twelve months of the principal sum
of £12,000, and the interest of a sum of £8000
irrevocably, revoked the uses of the former
settlement, and appointed the lands to trustees
for 550 years, upon trust, so soon as conveni-
ently might be (but with A.’s consent in writ-
ing, if during or within twelve months from
the date of the deed, and afterwards of their
own authority), to raise £20,000, by sale or
mortgage; provided that, if the £20,000 there-
inbefore directed to be raised within twelve
months, should not be raised within or at the
expiration thereof; or if A. should die before
the £20,000, was actually raised; then the
deed and every clause and thing therein
should be void, and the fine should enure to
confirm the several estates and interests in
the lands which subsisted immediately before
the execution of the deed of revocation. Held,
upon the whole deed, that the money was to
be raised within twelve months; and that the
deed should be void if the money was not
raised within that time, or if A. should die
-before it was raised, and within the twelve
months.

The money was not raised within the time.
Held, that the old uses and the power of
revocation revived.—Lord Langford v. Little,
81. E.R. 546; 2 Jon. & L. 613. (C.)

8. A. was seized of 160 acres of the lands of
C. for three lives, renewable for ever, subject
to a head rent to B., and possessed of the re-
mainder of the lands for a term which expired
in 1823, subject to a head rent of £10 to P.
In 1817 W. demised to H. “the lands of C.,
containing by estimation 160 acres more or
less,” for three lives or thirty-one years. The
lease contained a clause that it should be law-
ful for H. to pay the head rent to B., and
a covenant by H. to pay it, and to indemnify
W. therefrom. H. went into possession of the
entire of C.; he and his son, with the sanction
and approbation of W., paid the head rents
both to B. and P. until 1841, and deducted
them from their rents. Held, that the lands
demised by P. did not pass by the lease of
1817; that the subsequent dealings did not
alter the parties’ rights; and that H. was
liable to the arrears of £10 since 1817.—
O Grady v. Waldron, 81. E.R. 719. (C.)

[DEEDS.]

 

Generally.

4. A., tenant for life, in consideration of
£500, granted an irredeemable annuity of £64.
19s. 2d. to B. for her life, to be issuing out
of the lands. ‘To secure the annuity and re-
payment of the £500, A. assigned to B. a policy
for £500 upon A.’s life, to hold as B.’s pro-
perty for ever. It was agreed that, so soon as
A. should give unexceptionable security for
the annuity, B, should be entitled to receive
only £50 a-year; the sum of £14. 19s, 2d. being
the premium upon the insurance of A.’s life,
and being payable by B. out of the £64. 19s. 2d.,
until such security should be given. It was not
given. B., having been paid all arrears of the
annuity, predeceased A. Held, that B.’s re-
presentatives were entitled to the sum in-
sured.— Kavanagh v. Waldron, 9 I. E. R. 279;
3 Jon. & L. 214. (C.)

5. A mortgage deed provided that the period
for redemption should not expire for seven
years from the deed’s date; and contained
a covenant that no proceeding to foreclose
would be taken during those years, if the in-
terest was regularly paid, as therein pro-
vided. The interest being in arrear: Held,
that the mortgagee might maintain a petition
for sale before the seven years had ended.—In
re Prendergast, 2 1. Jur. 145. (1.E.C.)

6, Lands were, by marriage settlement of
1801, conveyed in trust for C., the intended
wife, for life; remainder to B., the intended
husband, for life, remainder for the younger
children of the marriage; with power to the
trustees to sell the lands, and lay out the pro-
duce in the purchase of other lands, in fee, or
in government securities. There was one
younger child, K. The trustees sold the lands,
and lent a portion of the purchase-money to
B., on the security of his bond and warrant, and
a policy of insurance on his life, effected by
the trustees. By deed of 1832, to which
neither K. nor her trustees were parties, B.
and his eldest son, R. conveyed other estates,
of which B. was tenant for life, remainder to
R. in tail, to the use of a trustee for 500
years, to raise by mortgage £16,000 to pay
off incumbrances; and after reciting that
bonuses had accrued on the policy of in-
surance to the amount of £2500, and that B.
had agreed, in order to indemnify R.’s estate,
to assign to the trustee of the term all his
interest in the policy of insurance, and all
bonuses thereon, B. assigned all his interest
in the policy of insurance, &c., in trust, to
apply the produce thereof in payment or part
payment of the £16,000 intended to be borrowed.
The £16,000 was, in 1834, raised by mortgage of
the term, without referring to the policy or
indemnity clause in the deed of 1832. By
deeds of 1839 and 1843, the surviving trustee
of the deed of 1801 assigned the judgment and
the policy of insurance to R., as a new trustee,
on the trusts of the deed of 1801. C. and K.
accepted the judgment and policy as a proper
investment of the trust fund. Further bonuses
afterwards accrued on the policy. Held, that
the mortgagees were not entitled to the
bonuses, under the indemnity clause of the
deed of 1832.
Construction of.

Quere—Whether K. was entitled to the
bonuses, as against R.?,

A person who was properly an answering
party in a cause, and is made a notice party, is
not bound by the proceedings. Therefore,
where a consent was signed by a solicitor as
solicitor for and on behalf of the plaintiff,
and such solicitor happened to be the general
solicitor of a person so circumstanced, it was
Held that she was not bound by the consent,
which did not purport to be signed on her
behalf.

Held, that the deed of 1832, though not
binding on K., might be read as evidence
of the title of the mortgagees.—O’Grady v.
Brady, 31. C. R. 4389; 61. Jur. 321. (R.)

1. M., possessed of a chattel interest in
lands, by deed, operating as a common law
conveyance, assigned them to A., B., C., and
D., to be divided and enjoyed by them in the
manner following, that is to say, A.’s one-
fourth to consist of Greenacre; B.’s fourth of
Blackacre; C.’s fourth of Whiteacre: and D.’s
fourth of Redacre; habendum unto A., B., C.,
and D., as follows—that is to say, to A. his
one-fourth for his life, and from and after his
demise, if he should leave lawful issue him
surviving, to such of them as he should ap-
point; but, if he died without issue, the said
fourth to be divided amongst and descend to
the survivor and survivors of B., C., and D.,
then living. A. survived B. and C., and died
in the lifetime of D., without having had issue.
Held, that the habendum was not inconsistent
with the premises.

That the gift over, if A. should die without
issue, was not void for remoteness.

That D. was entitled to A.’s share of the
lands.—Kerr v. Kerr, 41. C. R. 493; 71. Jur.
76. (C.)

2. An indenture of lease, made in 1799 be-
tween F. and D., after reciting that F. had,
by a renewal of a former lease for lives re-
newable for ever, made under a covenant for
perpetual renewal, become entitled to the pre-
mises in question, witnessed that F. demised
to D. the premises, to have and to hold to
him, his executors, &c., from, &c., for the
lives therein named, “and for and during
such other life or lives as shall hereafter be
added to the original lease,” reserving a
yearly rent; containing covenants for quiet
enjoyment and further assurance, but not for
perpetual renewal, nor reserving a renewal-
fine. In May 1852, V., on whom the interest
of F. had devolved, served notice upon D. to
renew his lease, informing him that two of
the lives named in the lease of 1799 were
dead (not naming them), calling upon him to
nominate two other lives in their place, and
informing him that if he neglected to do so, Vv.
would decline to renew. the lease. In July
1853, D. furnished to V. a draft fee-farm
grant of the premises, for his approval, which
the latter refused, alleging that D.’s right to re-
newal was lost through laches. The original
lease had been renewed in 1828. A petition
having been filed by D., for a declaration of
his right to a renewal of the lease of 1799 for

[DEEDS.]

 

Generally. 199

the lives to be named in each renewal of the
original lease—Held, that, independently of
the question of laches, he was not entitled toa
perpetual renewal of the lease of 1799.

That he was entitled to have the lives
named in the renewal of the original lease
granted in the year 1828 inserted in the lease
(o eee v. Vincent, 7 I. Jur. 350.

8. A testator, possessed of a term for years,
bequeathed all his estate therein to trustees,

‘upon trust to permit A. to enjoy a part of the

lands for life ; then to pay his wife an annuity
for her life; then to pay A., B., and C., a
yearly sum of £20 a-piece during their respec-
tive lives, and, after their respective deaths,
same to be paid to their respective children
lawfully begotten, male or female; and if any
of said A., B., and C. should die before he
attained age, or should have no issue lawfully
begotten, the annuity of such of them as
should so die’ should go to and be equally
divided between the survivors or survivor;
and, after payment of said annuities, to per-
mit W. to receive out of the remaining profit
rent £70 a-year; the remainder of the profit
rent to be retained to discharge renewal fines;
after the death of his wife, and after payment
of the rent and renewal fines, and the three
annuities of £20, then to permit W. to receive
the rents (except A.’s part); remainder to J.
for life; remainder to the first and every
other son of J. Held, that the annuities of
£20, bequeathed to A., B., and C., were perpe-
tual.—Courtenay v. Gallagher, 5 I. C. BR, 154.
(R.)—[Affd. ibed, 356. (C.)]

4. By settlements of 1784 and 1808, the
estates X. and Y. were made subject to a
charge of £34,500 for the younger children of
D. By articles executed on the marriage of
J., one of the younger children, it was recited
that D., and B. his eldest son, contemplated
the execution of certain deeds to arrange
their several estates, in which it was intended
that estate Y. should be subject to £8000,
part of a sum of £42,500, which D. was em-
powered to charge on estates X. and Y. for
such purposes as he might think fit, and of
which it was the intention of D. to settle
£8000; in full satisfaction of all claims of J.
upon both estates; and that the said D. and
B. had agreed that J.’s portion should be
£8000, and that it was agreed that part of the
intended wife’s fortune, together with £5000,
part of the said sum of £8000, so thereby
agreed to be charged on both estates, should
be vested in trustees upon trusts; and D. and
B. covenanted within six months to convey
estates X. and Y., to the intent that D. might
effectually charge and incumber both estates
with £42,500; and D. covenanted within six
months to charge estate Y. with £8000, as the
portion of J., £5000 of which was to be paid
in two years after the death of D., and £3000
after the death of the survivor of D. and his
wife, with interest until paid; and D. and B.
covenanted for further assurance for the more
effectually carrying into effect the articles,
and charging all the thereinbefore mentioned
200 Construction of.

lands with the said sum of £8000. By a sub-
quent deed, D. and B. conveyed both estates
X. and Y. to trustees for 5000 years, upon
trust to raise £38,500 (which sum, was to be
substituted for the £42,500), and to pay
£19,500 to J. and three others of the younger
children of D., who were unprovided for, in
such shares as D. should appoint; in default
of appointment, equally; and, as to the
£19,000, residue of said sum of £38,500, in
trust for D., provided the said sum of £19,500
should be taken by J. and his sisters and bro-
ther in full satisfaction for their portions
under the deeds of 1784 and 1808. Held, that
the £8000 provided by the articles was a
charge on both estates X. and Y., and the
latter proving insufficient to pay it, that D.
might resort to the former for the balance.

J. proved another charge in a foreclosure
suit; and the report, which was confirmed by
a final decree, found that there were no other
charges affecting the lands of X. J. after-
wards obtained an order giving him liberty to
prove his claim for the balance of the £8000.
Held, that the order was irregular, and the
Court refused to confirm a report made under
it.— Gurney v. Oranmore, 5 I. C. R. 163. (R.)
[Affd., Gurney v. Oranmore, 5. I. C. R. 436; 1
I. Jur., N.S. 446. (C.)—Affd., Montefiore v.
Browne, 7 H. L. Cas. 241.]

1. A Railway Co. contracted with J., by arti-
cles under seal, to work their railway. By
this contract the rolling stock of the Co. was
to be valued, and handed over to J., who was
to work the railway with that stock, at mile-
age rates, from which were to be subtracted
payments by way of remuneration for the use
of the stock, and £5 per cent. as a deprecia-
tion fund. . J. was bound to restore stock
equal in value to that which he received.
Valuations of the stock were made at the
commencement and during the continuance
of the contract, on the assumption that this
depreciation fund was merely to be a guaran-
tee to the Co., and was not to belong to them
eventually, save so far as’depreciation had
actually occurred. The engineer of the Co.
was privy to these valuations. On the faith
of the depreciation fund being a guarantee,
J. made considerable expenditure, which di-
minished or prevented the depreciation of the
rolling stock. On the termination of the con-
tract, J. brought an action against the Co. for
various sums alleged to be due under the arti-
cles. In that action he recovered damages;
but it was decided, by the Chief Justice, at N.
P., that, on the true construction of the arti-
cles, the £5 per cent. was not a guarantee
fund, but belonged to the Co. in all events.

Held, that notwithstanding the decision of
the Court of Law, J. was entitled, in Equity,
to have the £5 per cent. treated as a guarantee
fund.

When expenditure for the benefit of one
party to a contract has been made by the
other, under a mistaken idea of the true con-
struction of the contract, which for a time
was entertained by both parties, the party
making the expenditure is not necessarily pre-
cluded by an adverse judgment at Law, in an

[DEEDS.}

 

Generally.

action upon the contract brought by himself,
from obtaining relief in Equity in respect of
the expenditure so made.

On a re-hearing, documentary evidence not
offered at the original hearing may be re-
ceived; but depositions for anything more
than identifying such documentary evidence
cannot be given.—Johnson vy. Mid. Gt. W. of
Ireland Ry. Co., 5 I. C. R. 264. (C.}—[Re-
versed, 6 H. Lds. Cas. 798; 4 Jur. N.S. 643.
(H.L.)]

2. A testator bequeathed £1500 each to his
daughters, and also an annuity of £40 each,
charged on house property, until they should
have been provided for by payment of the
legacy; on payment of which the annuities,
thereby given as temporary provision for them,
should cease. He bequeathed the house pro-
perty to his sons A. and B., whom he appointed
executors, and directed that they should, within
three years after his decease, invest £3000 in
stock to discharge the legacies. <A. and B.,
traders, did not invest the £3000 as directed,
but paid interest at £6 per cent. on the lega-
cies, and also the annuities. B. died. A. be-
came bankrupt. The daughters proved for
the legacies, under a ruling of the Commis-
sioner that they should elect to do so within a
certain time; and the house property was sold
in the bankruptcy, subject to the annuities,
which were referred to in the particulars of sale.
The conveyance, prepared by the purchaser,
a solicitor, was made subject to the annuities,
in case and so long as they, or either of them,
should be or continue charged or payable
out of the property, under the provisions of
the will. Several gales of the annuity were
paid after the conveyance had been executed
by the assignee in the bankruptcy. Held, that
though the property was sold absolutely, sub-
ject to the annuities; and the conveyance was
therefore not in accordance with the contract,
the Court, having no jurisdiction in bank-
ruptcy, must construe it according to its legal
effect; and the purchaser took the property
subject to the annuities, if legally subsisting.
That the daughters, by proving in the bank-
ruptcy, had not waived their right to the an-
nuities, the election which they were put to by
the Bankruptcy Court being, whether they
would go against the property sold as part of
the assets on a devastavit, or permit it to be
sold.

That the mere fact of their having allowed
the money to remain in the executor’s hands,
at interest, did not amount to a payment of
the legacies in point of law, and a loan of it
to the executors; but—WSecus, if it remained
in their hands in respect of a contract for a
loan. The Court directed a distress to be made
for the annuities, to try the question whether
such a contract existed.— Gatchell v. Geoghegan,
61.C. R. 312. (R.) ,

8. A., residing at Brussels, by a deed pre-
pared in England, engrossed on English stamps,
and executed in England, wherein he was de-
scribed as of R., in Ireland, reciting that W.
(an Englishman, residing in England) had
agreed to advance him £8000, in considera-
Construction of.

tion of his paying W. £10,000 within six
months after A.’s father’s death, who was
aged 76, in case A.’s wife (aged 41) should
survive his father; and also to grant to W.
an annuity of £3000 a-year, to commence
from the death of A.’s father; and that the
payment of the annuity and the £10,000 should
be secured on A.’s life estate in remainder
after the death of his father, on estates in
Ireland, granted to W.; the annuity for the
life of A.’s wife to be charged on the said
estates, and to be paid at the dining-hall of
Lincoln’s Inn, half-yearly; with clauses of dis-
tress and entry; and A. demised the lands for
99 years to secure the annuity, and payment
of the £10,000, and covenanted to pay the
£10,000, and also the annuity. Semble—The
contract was an English contract; andthe annu-
ity deed, not having been enrolled, was avoided
by the English Annuity Act, 53 G. 3, c. 141.—
Held, that though the annuity was void, the
covenant to pay the £10,000 was not neces-
sarily void, and might be enforced. The mere
fact of an annuity being charged on lands in
Ireland does not take it out of the operation
of the Annuity Act.— Walker v. Lord Lorton,
61. C. R. 329. (R.)

1. An heir-at-law, who has executed deeds
reciting that his ancestor had executed a will,
and who has induced the devisee to deal with
him on that assumption, is not entitled to a
decree preventing the devisee from setting up
at law temporary bars, or relying on the
estoppel created by such deeds, upon the
mere allegation that he had executed such
deeds under a mistake respecting the due exe-
cution of the will, without giving evidence that
in fact the will had not been duly executed.

The petitioner did not show any reason for
not producing the evidence of mistake which
she alleged to exist. At the bar it was stated
that she had omitted producing it under ad-
vice. The petition was dismissed absolutely
without reserving any leave to file a new peti-
tion.—French v. Copinger, 6 I. C. R. 568; 31.
Jur. 21. (C.)

2. A., in consideration of £2632 advanced
by B., his son, pursuant to an agreement en-
tered into previously, by deed, in 1844, settled
his fee-simple estates in strict settlement, and
conveyed the lands of C. and K., which he
held under a fee-farm grant, to trustees, to
sell and apply the proceeds to pay off debts
affecting the fee-simple estates, incurred prior
to T. T. 1842, and to take an assignment of
those debts, to secure £6000 for the younger
children of A. ,

The £2632 was secured by a judgment en-
tered up immediately before the execution of
the deed of 1844. A schedule to that deed
contained a considerable number of judgment
debts entered up subsequently to T. Term
1842, but prior to the judgment securing B.’s
advance. Held, that upon the true construc-
tion of the deed of 1844 the trusts were in-
tended to have priority to B.’s judgment.—
[Hargreave, C., dissenting. ]

C. and K. were held under a fee-farm grant
subject, as to K., to a lease for three lives, all

[DEEDS.]

 

Generally. 201

of which, at the time of the execution of the
deed of 1844, were alleged to be dead. The
deed provided that B. should take proceed-
ings to recover actual possession of K. B.
took proceedings; but on investigation it ap-
peared that one life was still in being.

Held (Hargreave, C., dubitante), that the pro-
viso was a condition precedent to the carrying
out the contract intended by the deed of 1844;
and that, as it had never been fulfilled, B. was
not bound to carry out the trusts of the deed.—
In re Blake’s Estate, 71. C. RB. 65. (LLE.C.)

3. G., having four sons (the eldest of whom
was of age) and one daughter, by an indenture
settling his estates upon himself and his sons
in strict settlement, limited a term of 500
years to trustees, upon trust to raise £3000,
and pay it by way of portions to and amongst
his younger children, in such shares, &c., as he
should by deed or will appoint; in default
“to and amongst such younger children, if
more than one, for whom no appointment of
any part thereof should have been previously
made, in equal shares; and if but one such
younger child, then the whole to such younger
child, whether any appointment of any part
thereof should have been previously made to
him, or her, or not;” the shares of such of
them as should be so entitled to be payable
at the age of twenty-one years, or marriage,
with interest from the time of appointment
by way of maintenance ; provided that if any
son should die, or become an eldest son, or
any daughter should die before his or her
portion “became payable as aforesaid,” the
portion of such-son or daughter should not
merge, but should go amongst the survivors ;
but if all the younger children should die
before any of the said portions of the £3000
should “ become payable as aforesaid,” then
the sum should merge inthe inheritance; pro-
vided that nothing therein contained “should
be deemed to entitle any of the younger
children” to any part of the £3000 during
the life of G., unless appointed to him or her
by G. G.’s eldest son died soon after the
execution of the settlement. The daughter
also died, and G., in ignorance of her death,
by will appointed £3000 equally between her
and two younger brothers, making the shares
payable at their age of twenty-one, or mar-
riage. The second son afterwards died in the
lifetime of his father, whereby the third son,
who had attained his age of twenty-one years,
became an eldest son. Then G. died. Held,
that the surviving younger son was entitled
to the whole £3000.— Sleeman v. Magrath, 7 I.
C. R. 304. (C.)—[ Affirmed, on_re-hearing,
by the Lord Chancellor, the Lord Justice of
Appeal dissenting, 8 I. C. R. 195; 3 I. Jur.
N.S. 233. (C.A.)]

4, A husband, tenant for life of his estate,
with a power to charge a jointure for a second
wife, by articles executed on his first marriage,
covenanted that, if there was a child or
children of that marriage, he would assign the
wife’s fortune and his own property in lands
and money among such child or children, in
such manner as he (the husband) by deed or

26
202 Construction of.
will should appoint. But that if the wife sur-
vived him, an annuity should be paid to her
out of his estate, which was stated in the
articles to be his absolute property. It was
agreed that if the wife’s fortune should not
be paid the articles should be void. Queere—

» Whether the articles amounted to a contract
by the husband which precluded him from
charging a jointure for a second wife ?—Barron
Gi Constabile, 71. C. R. 467; 31. Jur. N. 8. 312.

R.)

1. A. and B., seized of lands in Ireland, and
entitled to the interest on a mortgage in Ire-
land, conveyed the same to C. and D. for their
lives, and the life of the survivor, in trust to
raise, by sale or mortgage, a sum to pay off
debts. <A deed of the 26th June 1840, reciting
a deed of even date, but which was not exe-
cuted until the 15th July, by which C. and D.,
with the consent of A. and B., and A. and B.
granted two annuities to E., to be charged and
issuing out of the lands and interest moneys
in the recited deed mentioned; and also
reciting A.’s and B.’s right to stock standing
to the credit of a cause in the Court of Chan-
cery in England; and that they had agreed
to assign the stock by the recited deed to F.
and G., to secure the annuities; witnessed
that F. and G. should call in the stock, and
hold it upon trust to pay the annuities. The
deed of the 15th July recited that A. and B. had
agreed with E. for a sale of the annuities, which
were to be secured by warrant of attorney to
confess judgments against A. and B. in Eng-
land and Ireland, and by policies of assurance ;
and that the annuities, together with the pre-
miums of the policies, were to be payable out
of the lands and interest moneys, and to be
further secured by a demise of the lands for a
term of years, and by an assignment of A.’s
and B.’s interest in the mortgage, and by the
appointment of a receiver over the lands and
interest of the moneys to be assigned ; and A.
and B. granted the two annuities out of the
lands and interest moneys to E., with a clause
of distress and entry on the lands, to better
secure payment of the annuity. C. and D.
assigned the interest in the mortgage. By
deed of January 1841, executed by C., D., and
E., but not by A. and B., reciting that a part
of the consideration money for one of the
annuities had not been paid, that annuity was
reduced. A. and B., at the time of the execu-
tion of the deeds, resided in England, but their
domicile was not clearly proved. C., D., and
F. were domiciled Englishmen; E. was an
Irishman. The negotiations for the loan were
carried on in Ireland. The deeds were pre-
pared by English solicitors, engrossed on Irish
stamps, and executed in England by all the
parties. The warrants of attorney were also
executed in England. The consideration for
the annuities was paid in Ireland, in Ivish
notes, and applied on the trusts of the deed
of 1839. Held, that the several deeds by which
the annuities were granted and secured were
to be considered as one transaction. That
the grant of the annuities was an English
contract, and was void, because memorials of
the deed had not been enrolled under the

[DEEDS.j

 

Generally.

Annuity Act, 53 G. 3,c. 141—Bannatyne v.
Barrington, 81. C. R. 150. (R.)—[Reversed,
91. C_R. 406; Dr. Rep. temp.*Napier, 459.
(C.A.)]

2. A tenant for life granted a rentcharge,
chargeable on lands for the life of the grantor,
provided the grantee should so long live, with
a power of distress, and a covenant for further
assurance, to a relative, as asuitable provision
for her; with an apportionment clause on the
grantee’s death between two gale days. The
grantor died between two gale days, leaving the
grantee surviving. Hedd, that independently
of the statute 4& 5 W.4,c. 22, there could
be no apportionment. That the Court could
not imply an intention that there should be’
an apportionment on the death of the grantor,
having regard to the express apportionment
clause on the death of the grantee in the life-
time of the grantor. That the deed imposed
no personal liability on the grantor to pay the
tentcharge. Annuities, independently of the
statute, are not apportionable, unless granted
for the maintenance of infants, or married
women living separate from their husbands.—
Leathley v. Trench, 81. C.R. 401. (R.)

3. A., B., C., and D. owned the ship E., and
contracted with R. that the owners of the E.,
so long as she or any vessel supplying her
place remained on the W. line, should pay
him one-sixth of the net profits, and that R.
should support the interest of the E. and her
owners, and any vessel supplying her place on
the W. line, and not connect himself with
any opposing party. The agreement also pro-
vided for the withdrawal of the E., and con-
cluded—“in which case the interest in the
station reverts to R., and we pledge ourselves
not to directly or indirectly connect ourselves
with any party injuring his interest in the
line.” The agreement was signed by A., B.,
C.,D., andR. D.retired from the firm, and L,
G., and H. became members of it. The M.
was substituted for the E., and K. became a
member of the firm against the wish of R. Held,
that the agreement could not be specifically
enforced against R. by the new firm, and that
R. could not be restrained at their suit from
working an opposition on the line to the M—
Grantham v. Redmond, 8 I. C. R. 449. (C.)

4, Fee-simple, freehold, and leasehold lands
were limited to A for life, remainder to B. in
tail. By a settlement executed on B.’s mar-
riage, reciting that B. could not obtain A.’s
consent to bar his estate tail, B., to defeat his
estate tail in remainder, and to convey a base
fee to the trustees, conveyed these lands, sub-
ject to the life estate of A., to the use of
himself for life, and, after his decease, upon
trust that his intended wife, if she survived
him, should, after his decease, during her life,
receive a jointure out of the lands—the first
payment thereof to be made on such of the
gale days as should first happen after the de-
cease of B.; with a clause of entry and distress
on non-payment for 21 days after any of the
days of payment; remainder, after the death of
B., to trustees for 300 years, to secure portions
for younger children, remainder to the first
Construction of.

and other sons of the marriage, in tail male,
remainder over. The wife’s fortune was con-
veyed to the trustees, in trust to pay the in-
terest, after the decease of B. in the lifetime
of A. to the wife, until she should become
entitled to receive the jointure; and if B.
should survive A., or should obtain A.’s con-
sent to bar the estate tail, in trust for B.
absolutely. B. died in the lifetime of A.—
Held, that the jointure did not become pay-
able until after A.’s death.—Leonard v. L., 9
I.C. R. 388,;(R.)—[See 10 I. C. BR. 120. (C.A.)

1. Quit-rents and crown-rents are charges
and incumbrances on lands. The lands of A.
were conveyed to a purchaser with a covenant
for quiet enjoyment, free from quit-rents and
crown-rents. By a contemporaneous deed
reciting that the lands of A. were subject to
certain debts, charges and incumbrances, ina
schedule specified, and might be charged with
others not then known, and that it had
been agreed that the purchaser should be in-
demnified from the aforesaid and all other
debts, charges, and incumbrances, that then
did, or at any time thereafter, might affect
the lands of A,; and from all suits, &c.,
on account of any other debts, charges,
or incumbrances whatever, the lands of B.
were conveyed in trust to pay the rents
to the vendor, and his heirs, until the purcha-
ser or any person under him, should be mo-
lested, disturbed, or damnified by reason of
the said judgments and incumbrances, or any
of them, or any judgment or incumbrance
affecting the lands of A., &c.; and after such
disturbance, &c., in trust out of the rents, or
by sale, demise, or mortgage, to raise such
sums as might be sufficient to pay the said and
all other incumbrances affecting the lands of
A., &c., to pay the purchaser all sums that he
might have paid on account of the said or any
such debts or incumbrances; and as soon as
the said trusts should be satisfied, and the
said and all other incumbrances affecting, or
that might affect, the lands of A., should be
fully discharged, in trust for the vendor and
his heirs. Held, that the sums paid by the
purchaser upon account of quit and crown-
rents were under the indemnity deed alone a
charge on the lands of B.

That the two deeds should be read together
.as being part of the same transaction; and
that on the construction of both, the sums so
paid were a charge on the lands of B.—Massyv.
O'Dell, 9 I. C.R. 441; 31. Jur. N.S. 360. (R.)
—[See 101. C. R. 22. (R.)]

2. The trustees of a marriage settlement
were empowered to raise, upon the request
of A., the tenant for life, such sum of money
as might be necessary to purchase a mansion
house, with a demesne attached, as a resi-
dence for A. It was declared that the “man-
sion house or lands, when so purchased,
should be conveyed to the trustees upon and
for the same trusts, intents, and purposes,
and with, under, and subject to the same
powers, provisions, declarations, and agree-
ments, as were in and by these presents de-
clared and contained of and concerning the

[DEEDS.]

 

Generally. 203

said hereditaments and premises hereinbefore
granted.” The settlement contained a power
to the trustees to sell, with the consent of
A., by public auction or private contract, or
to exchange the settled lands, for such price
in money or equivalent in other lands as to
them should seem reasonable; or to resell the
lands which might be so purchased and to
give discharges for the purchase-money ; and,
in order to effectuate such sales, to revoke the
uses and trusts of the settlement; and to ap-
point any uses and trusts which should be
thought necessary or expedient for effectu-
ating such sale or exchange ; and the trustees
were authorised to invest the purchase-money
in lands, which were to be settled to the same
uses and upon the same trusts, &c., and sub-
ject to such and the same powers, provisions,
declarations, and agreements as were declared
as to the settled lands.

In 1857 the trustees, with A.’s consent, pur-
chased a mansion house, which was conveyed
to them subject to such and the same trusts,
intents, and purposes, and subject to the same
powers, &c., as in the thereinbefore recited
indenture, limited, &c., of and concerning the
lands of L. In 1858 the trustees, at A.’s re-
quest, sold the mansion by auction to the re-
spondent. Held, in a suit for specific perform-
ance of the contract for sale, that the trustees
could make a good titke to the mansion house;
and the purchasers were bound to accept it.

Deeds are to be read in their grammatical
and ordinary sense; and the Court should not
transpose the words of a clause unless it is
absurd or repugnant to or inconsistent with
the rest of the deed.—Clements v. Henry, 10
IC. R. 79. (R.)

3. A deed, purporting to be an absolute sale,
will not be held a mortgage, on the grantor’s
evidence, supported by the testimony of third
parties, touching alleged declarations to that
effect made by the grantee long after its exe-
cution.—Jn re Naghten, 51. Jur. N. 8.196. (B.)

4. A., tenant for life, with a power to
jointure, remainder to B., his eldest son by
his first marriage, in tail, charged a jointure,
on his second marriage, which was not autho-
rised by the power. A. and B. afterwards
joined in barring the estate tail, for the
purpose of securing by mortgage a sum ad-
vanced to A.

The disentailing deed recited the power,
and the charge of the jointure, and conveyed
the lands to a trustee, without prejudice to
the jointure, to such uses as A. and B. should
appoint ; in default, to such uses as were sub-
sisting before the execution thereof, so as to
secure and restore the former title to the
lands. By a contemporaneous deed, to which
the jointress was a party, reciting the power,
the charge of the jointure, and the contract
for a loan of £1000 to A. and B., to be se-
cured by a mortgage, discharged of the join-
ture, but to the intent only that it should
be postponed to the £1000 and the interest
on it, and reciting the conveyance by the dis-
entailing deed subject to the jointure; A. and
B. appointed the lands, by way of mortgage,
204 Construction of.

to secure the £1000, and the jointress re-
leased the lands from the jointure, with a
proviso that the release should take effect
only for the purpose of postponing the join-
ture to the £1000. By another deed of even
date, reciting the disentailing deed, and that
the lands were charged with £1000 for the
use of A., he granted a rentcharge to a trustee
for B. Held, that the charge of the jointure,
being void, was not confirmed by the deeds,
and that the mortgage deed did not operate
asa re-grant of the jointure, the intention being
merely to postpone the jointure to the mortgage.

A. had a power by deed or will to charge
a jointure, not exceeding £100 a-year for
every £1000 which he had actually and bona
Jide received with his wife. On his marriage,
a life estate of his wife in a chattel interest in
lands was conveyed to him for life. A. re-
ceived before the date of the will about £2000
out of the rents of said lands. Held, that the
charge by his will of a jointure of £200 a-
year was valid if £2000 was received, and that
if said sum was not received the jointure
should abate proportionally—Brereton v.
Barry, 111. C. RB. 97. (R.)

1. By a marriage settlement, lands were
conveyed to trustees, to the separate use of
A., the wife, for life; and if B., the husband,
should survive her, to him for life; and after
the death of the survivor of A. and B., in
trust to convey to the child or children of the
marriage as A. and B. should by deed or will
appoint ; in default, to the children equally;
in default of issue, to the survivor of A. and
B. There was issue. By deed, reciting that
A., to further the prospects in life of the
children had consented to assign her life
estate for their benefit, and that B., for the
like purpose, agreed to assign his reversion,
if he should survive his wife, for the consi-
derations aforesaid, and 10s., conveyed her life
interest in trust to receive the rents during
the life of A. and B., and apply them for
the benefit and maintenance, &c., of the child-
ren, in such manner as the trustees might
deem sufficient; it was agreed that the
trustees should have full power and control
over the property during the life of A. and B.,
free from the control or intermeddling, debts,
&c., which at any time might have affected
the estate of A. and B. B. covenanted that,
if he should survive his wife, he would, if
called on by the trustees, assign his estate
and interest to the trustees on those trusts.
Held, that the children were not within the
consideration, and could not enforce a spe-
cific performance of B.’s covenant to assign
his interest.—Joyce v. Hutton, 11 I. C. R. 123.
(R.)—[Reversed, 12 I. C. R. 71; 6 I. Jur.
N.S. 274. (C.A.)]

2. A., seized in fee, conveyed lands to B.
and C., and their survivor, and the survivor's
heirs, to A.’s use for life; after his death, to
the use of B. and C., and their survivor, and
the survivor's heirs, upon trust to permit D. to
receive a jointure; after D.’s death to the use
of A.’s right heirs. Held, that B. and C. took
a legal estate in fee in remainder.

[DEEDS.]

 

Generally.

A., having devised all his property to his
wife, and contracted to sell the lands, died.
In a suit by the purchaser to enforce specific
performance—Held, that A.’s heir-at-law was
not a necessary party to the conveyance, since
he had no legal or equitable estate, nor any
tight to institute a suit to set aside the con-
tract; regard being paid to A.’s will devising
all his property to his wife, who, if the contract
was set aside, would be entitled to the lands ;
and, if it was not set aside, would be entitled
to the purchase-money.

Roberts v. Marchant explained—Fowler v.
Lighthurne, 111. C. R. 495; 61. Jur. N. 8. 93.

R.)

3. By marriage settlement of 1794, A. con-
veyed lands of which he was seized in tail in
remainder, together with all other lands, &c.,
which he was then or thereafter might be
possessed of or entitled to in reversion or
remainder, or otherwise howsoever, to trus-
tees, to the use of himself for life; remainder
as he should appoint among the issue male of
the marriage; remainder over; and cove-
nanted to do any act or execute any convey-
ance, if required, of and concerning the speci-
fied lands, or any other lands and premises
which he should at any time thereafter be pos-
sessed of or entitled unto, &c., for the further,
better, more perfect and absolute carrying
the settlement, and the true intent and mean-
ing of the parties thereto, into full, legal, and
perfect execution. In 1819, a judgment was
recovered against A.; and in 1839 he became
entitled, as heir-at-law of his brother, to other
lands not specified in the settlement. In 1859
A. died. Held, that the trusts of the deed of
1794 attached to the latter lands on their ac-
quisition by A., without any further act by
him, and that his eldest son, claiming under
that deed, was entitled to hold them dis-
charged of the judgment.—[ Britton v. M‘Don-
nell, 5 I. E. R. 275, disapproved of and quali-
fied.]—Stack v. Royse, 12 I. C. R. 246547 I.
Jur., N.§. 114. (R.)—[Affd., 13 I. C. R.213;
71. Jur. N.S. 249. (C.A.)]

4, A. having infringed B.’s trade-mark on a
blistering ointment manufactured by A., it
was agreed between them that all claims in
respect of such infringement to include not
only A., but all purchasers from him, should
be settled and discharged by the payment of
asum of money. B. undertook to execute a
release of all claims and demands in respect
of the infringement. Before the agreement,
A. had sold large quantities of the ointment
to purchasers, who, after the agreement, sold
it with B.’s trade-mark. Suits were com-
menced against them by B. for injunctions.
A. thereupon sued B. for specific performance
of the agreement to execute a release, and to
restrain B. from proceeding in the several
suits. Held, that the agreement was confined
to sales by A., and all persons to whom he
had sold the ointment prior to the agree-
ment; and did not authorise a sale by them
after the agreement.

Semble—A suit will not lie to restrain the
respondent from proceeding for an injunction
Gen. Rules of

against third persons who are not parties to
the suit—Oldham v. James, 13 I. C. R. 393.
(R.)—{Affd., 14 1. C. BR. 81. (C.A.)]

1. By marriage articles, A. covenanted that
if he should not have settled or devised here-
ditaments to the value of £180 a-year, to the
uses in those articles specified, then £3000
should be raised out of his assets, to be held
upon trusts corresponding with those several
uses. By deed, subsequently executed, he
conveyed hereditaments, to be held subject

' to prior trusts, “upon the trusts in said arti-
cles of agreement specified,” and subject there-
to, upon further trusts therein mentioned.
After his death, his two sons executed joint
mortgages of the hereditaments, which implied
that the entire interest in the hereditaments
was bound by the trusts of the articles. Held,
that the deed of trust had not this effect;
that the mortgages did not preclude the elder
son (who was heir-at-law) from giving that
deed its true construction.—In re Clancy’s Es-
tate, 141. C. R. 361; 91. Jur. N.S. 72. (L.E.C.)

2. Two conveyances, of equal date, execu-
ted by the Commissioners of the I. E. Court,
granted premises in severalty to A. and B.,
and mountain lands to A. and B., in undivi-
ded shares, proportioned to the rights of com-
monage thereon previously enjoyed by A. and
B. respectively under certain leases. The
premises granted in severalty were described
as being in the occupation of the grantees,
as containing a certain number of acres, and
as being represented in maps annexed to the
several conveyances; they were to be held
subject to the leases, which were of equal
dates. They described the demised premises
as containing a certain number of acres, and
as being in the possession of the respective
lessees. The acreage in the conveyances and
in the leases was substantially the same.
Areclaimed piece of mountain land was in
the possession and occupation of A. at the
time of the leases and of the conveyances;
but if included in the lands demised, and
granted to him in severalty, would have ren-
dered the acreage inaccurate. The maps
annexed to the conveyances represented it as
a portion of the mountain lands. Held, that,
as to the leases, it should be considered as
portion of the lands demised ; but that, as to
the conveyances, it should be considered por-
tion of the mountain lands.

Quere—aAs to the principle upon which the
partition of the mountain lands should be
carried out?—Jn re Clements’s Estate, 14 I. C.
R. 501. (L.E.C.)

3. By a marriage settlement, reciting that
the intended wife was entitled to the lands of
X. and C., part of the lands of Y., and of the
lands of Z., in remainder, and was also enti-
tled to £600, and that it had been agreed
that these properties should be vested in a
trustee, upon trusts, first, to secure a jointure
for her, the intended wife conveyed the lands
of X. and Y. to the use, as to X., of the hus-
band for life; remainder to her own use for
life; remainder in trust for the issue of the

[DEEDS.]

 

Construction. 205

marriage; and it was agreed that she was to
have, during her natural life, all the property
that the husband might have or be entitled to;
and that he would not sell or mortgage any
of the properties during her life without her
consent first had and obtained under her sig-
nature. Held, that there was a resulting
trust, as to the lands of Y., for both husband
and wife in her right.

That the husband was entitled to the lands
of Z. for life, with remainder to the wife for
life— Elliott v. Kempston, 15 I. C. R. 120. (R.)

 

Il. 2. General Rules for their Construction.

4, A deed is not to be construed by the sub-
sequent acts of the parties.— Burrowes v. Hayes,
H. & J.597. (E.E.) :

5. In a deed, the extensive and ordinary
signification of the word “heirs” will be
limited, when the intention of the parties to
the deed to limit it is perfectly apparent—
Wall v. Wright, 1 Dr. & Wal. 1. (C.)

6. In putting a construction upon a deed,
the Court will limit the primary signification
of general expressions in it by the purposes
for which it was executed, so far as those pur-
poses can be discovered from the deed itself.—
Houston v. Barry, 5 1. E.R. 294. (E.E.)

7. A negative claim in a deed implies, and
contains within itself a corresponding affirma-
tive, and in the construction of the instrument
shall have as much weight and effect as the
express affirmation, if used, would have had.—
ey vy. K., 4 Dr. & War. 53; 5 I. E. R. 485.

8. It is a settled rule of law that, in con-
struing a deed or written instrument, the
Court is at liberty to inquire into all the sur-
rounding circumstances which may have acted
upon the minds of the persons by whom the
deed or will (for it matters not whether it was
one or the other) was executed. But the
knowledge of such facts will not enable the
Court to put a construction upon the instru-
ment inconsistent with the words thereof.

Contemporaneous usage may be resorted to
to assist in the construction of an ancient
deed.

When an instrument contains ambiguous
expressions, extrinsic evidence may be re-
sorted to for the purpose of explaining them.
Att.-Gen. v. Drummond, 1. Dr. & War. 867; 1
Con. & L. 210. (C.)—[Affirmed, 2 H. Lds.
on As to the costs, see 3 Dr. & War. 162.

9. A word, which occurs twice in the same
instrument, is to receive the same meaning in
both places, unless a clear intention to the
contrary appears.—Ridgeway v. Munkitterick, 1
Dr. & War. 84. (C.)

10. The acts of parties cannot be allowed to
affect the construction of deeds.—Douglas vy.
Allen, 2 Dr. & War. 213; 1 Con. & L. 367. (C.)
206 Recitals,

1. Whether the instrument is a will or a
deed, “or” may be construed tomean “and;”
and v.v., if that construction is necessary to
give effect to the intention of the party who
used the word.— White v. Supple, 2 Dr. & War.
471; 1 Con. & L. 525. (C.)

2. Principlés on which the Court acts in
setting aside deeds, because the grantor was
intoxicated at the time of the execution
thereof.—Nagle v. Baylor, 3 Dr. & War. 60.

(C.)

8. The rule of construction of Acts of Par-
liament, that the grammatical sense of the
words shall be adhered to, unless it is con-
trary to any expressed intention or any de-
clared purpose of the Act, or unless it would
involve any absurdity, repugnance, or incon-
sistency in its different provisions, is in general
applicable to deeds.—Caulfield v. Maguire, 5
I. C. R. 78. (R.)

4, The nature of contract of a Life As-
surance considered.—_It may now be taken
as settled that a life insurance is not to be
regarded as being necessarily a contract of
indemnity; but that in each case the real
question will be, what was the actual contract
of the parties ?—Godsall v. Baldero, 9 East, 72,
being no longer law

Semble—That the reasons upon which Hum-
phrey v. Arabin, temp. Plunket, 318, and Bell v.
Ahearne, 12 I. E. R. 576, proceed, cannot any
longer be supported, so far as they depend
upon any supposed difference between the
law of England and that of Ireland, in cases
of life insurance.—Gaggin v. Upton, Dru. Rep.
temp. Napier, 427. (C.)

5. Deeds are to be read in their grammati-
cal and ordinary sense ; and the Court should
not transpose the words of a clause, unless it
is absurd, or repugnant to, or inconsistent with
the rest of the deed.— Clements v. Henry, 10 I.
C.R. 79. (R.)

 

II. 3. Respecting Recitals, Provisoes, Savings,
Sc.: their effect.

6. Lands being resettled, £2500 was charged
for younger children by a deed reciting that
estates were charged with £1000 for them
under a previous settlement, which really
charged the lands with £2000. These children
claimed both sums. Held, not a case for
election between the deeds, but merely a mis-
recital; and that the real intention, if it had
been to charge the £2500 besides the £1000,
should have been proved by parol testimony.
Ruby v. Foot and Beamish, Beat. Rep. 581. (C.)

7. A fiscal statute, 54 G. 3, c. 92, s. 6, con-
tains a saving co-extensive with, and therefore
repugnant to the enactment; the enactment,
however, must prevail.

The rule of law—that an exception must be
of part of a thing only, not of the entire, ap-
plies to statutes as well as to deeds.— Clelland
y. Ker, 61. E. R. 35; Dr. Rep. temp. Sug. 227.
(C)

[DEEDS.]

 

Provisoes, &e.

8. The lands of M., part of the manor of C.,
were conveyed in 1823, to A. and his heirs, “sav-
ing and excepting thereout the manorial rights
belonging to the manor of C., and the tolls
and duties of the fairs and markets thereof,
and also any liberty of turbary or limestone
heretofore granted therein or thereout by B.
or his ancestors, to any of the tenants of the
said manor, as expressed in their leases re-
spectively.” There was no limestone or turbary
on the lands of M., nor had any manorial
rights been exercised for more than twenty
years, nor any fair or markets ever been held.
In 1845, the lands of M. were setup and sold as
held by a clear indefeasible title in fee-simple.
Upon objection to the title, the Master in
Chancery reported the title as bad. Held,
upon exceptions to the report, that the saving
in the deed did not form any ground for the
report of bad title.

In the rental under which the lands were
sold, a part was thus described :—“ Term for
which demised ; under an article of agreement
for lease of four lives, bearing date 1804, and
one year.” The sale took place in January
1845, and on the 9th April the purchaser’s
solicitor received a copy of the article, and
then first discovered that the agreement was
for a lease to commence after the expiration
of a then subsisting lease which did not ex-
pire until 1843; and on the 24th of Oct. he
lodged objections to the title, and subse-
quently swore that he was misled by the state-
ment in the rental. Held, affirming the report,
that the mis-statement was ground for dis-
charging the purchaser, not for compensation.
That the delay in lodging the objection disen-
titled the purchaser to his costs——Martin v.
Cotter, 9 I. E. R. 44. (R.)—[Revd. on the
first point; affd. on the second; ibid, 351; 3
Jon. & L. 496. (C.) J

9. By deed of 1809 between A. and B.,
Deputy Barrack-master General, reciting that
a certain part of A.’s estate had been fixed on
for the site of barracks, and that it was neces-
sary that a privilege for the troops for exer-
cising should be granted on another part, A.
conveyed nine acres for ever for the site of
the barrack, and also granted, let, and de-
mised unto B. 100 acres, to hold to him and
his successors for ever, for the purpose only of
exercising thereon, in trust for his Majesty,
his heirs and successors; reserving a rent of
£150. There was a covenant to pay the rent,
and a power to the lessor to resume the 100
acres, upon giving another piece of ground in
lieu of them. After the signatures, it was de-
clared in the attestation clause, that nothing
in the deed should be construed to deprive A.
or his heirs of the fee and inheritance of the
full and free enjoyment and possession of the
100 acres, “the liberty of exercising thereon
being only intended to be granted.” A. in
1818 demised the 100 acres to C. for lives re-
newable for ever, subject to the perpetual
right of exercising thereon, &c. C.’s interest
in the lease was sold under the decree, and the
rental stated that “the lands were subject toa
perpetual right to be used by the military as
an exercise ground.” Held, that the deed of
Recitals,

_1809 was not a mere grant of an easement in
the 100 acres, but was an absolute convey-
ance of the land, the fee of which was, by the
7 G. 3, c. 6, vested in the Crown, without livery
of seizing.

Though a conveyance to one and his suc-
cessors gives but a life estate, and in convey-
ances operating under the Statute of Uses the
seizin must be commensurate with the use, yet
Semble, this does not apply to a case of trust.
Held also, that it being doubtful whether,
upon the true construction of the covenant in
the deed of 1823, the lands were bound thereby,
the Court would not compel the purchaser to
take a title subject to such a question.

The cases upon the effect of such a cove-
nant in binding real estates observed on by
Smith, M.R.— White v. Baylor, 10 I. E. R. 43.

R.

1. By deed made between A., B., and other
parties, reciting the title of A. to some lands,
and of B. to others, A. and B. purported to
convey to trustees some of A.’s lands, and by
a separate testatum A. alone conveyed the re-
mainder of them, and also purported to con-
vey B.’s lands. A. alone covenanted for title.
There were powers of sale and exchange, in-
cluding all the lands and premises, and to
change the trustees, which were introduced
with the usual words of agreement by all the
parties to the deed. Held, that the deed
bound B.’s lands, at all events in equity, and,
Semble, was an effectual conveyance of them
at law.— Hill y. Mill, 12 1. E.R. 107. (C.)—
[Varied : 3H. Lds. Cas. 828.]

2. A. Joint-stock B. Company held bound
by a trust deed for the benefit of creditors,
because of the conduct of their public officer
and others in assenting to it, though neither
the Company nor the directors had authorised
its execution ; and the arrangement was im-
provident for them. Semble—The rule requir-
ing an authority under seal from a partner to
execute deeds is inapplicable.

A creditors’ deed provided :—that if the as-
signment thereby made should for any reason
become inoperative ; or if any of the property
thereby conveyed, or intended so to be, should
not have been effectually assigned thereby,
the sureties might abandon it. The deed
was an act of bankruptcy under the 6 W. 4,
c. 14, s. 20. No notice was given or required
by that section. An attempted sale in ex-
ecution of the trusts failed, because the
trustees could not make title. Held, that the
deed could not be avoided under the proviso,
because it contemplated not a defect inherent
in -the deed, but an act by some stranger
thereafter.—Dudgeon v. O’ Connell, 12 I. E. R.
566. (C.)

8. By deed of separation, reciting that the
wife was entitled to specified property, and
that no provision had been secured to her on
the marriage, nor had any part of the property,
to which she so became entitled been limited
to the use of the issue (if any) of the marriage,
and that the husband had agreed to relinquish,
for a certain period, the premises, which were

[DEEDS.]

 

Provisoes, &c. 207

the property to which he became entitled in
right of his marriage, and formed a provision
far exceeding that reserved to him for his own
support, they covenanted to live separate, and
that all the wearing apparel, &c., and all other
estate and effects, real or personal, to which
the wife should, by purchase, gift, devise, or
bequest, in her favour, &c., during the cover-
ture, become entitled, should be and remain to
her separate use; and it was agreed that the
wife might dispose of such property as if sole,
and the trustees were empowered to use the
name of the husband in order to recover any
money, &c., which should thereafter be due to
the husband in right of the wife. The recited
property was then put in settlement. The
wife at the time was entitled to areversionary
life interest in a fund, after the death of her
mother, then alive, which was not referred to
in the deed, and afterwards came into posses-
sion by the mother’s death.— Held, that, on the
construction of the deed, she, and not her
husband, in his marital right, was entitled to
i latter fund.—Jn re Andrews, 11. C. R. 410.
R.)

4, Lands were setled to the use of A. for
life; remainder to trustees to preserve, &c.;
remainder to B in tail; remainder to N. in
tail. In 1806, A. conveyed his life estate in a
part of the lands to B., and A. and B. mort-
gaged the entire to C. A recovery was suffered,
which was defective. In 1809, B. died, leaving
N. his heir-at-law. In 1810, on N’s marriage,
a settlement, to which C. was not a party,
recited the mortgage and recovery as valid,
and the lands were charged with portions. In
1845, a disentailing deed was executed by N.
Held, that neither the recital in the settlement
of 1810, nor the disentailing deed, had the
effect of setting up the mortgage against the
parties claiming under the settlement.—Jn re
Davies, 41. C. R. 87. (P.C.)

5. By a settlement of 1810, power was given
to A, the intended husband, to appoint to all
and every or any one or more of the children,
grand-children, or other issue of the marriage,
in such manner and form, and, if more than
one, in such parts, shares and proportions, and
for such estate and estates, time or times, and
for such interests, and with such limitations
over, or substitution or charges in favour of
any one or more of the children, grandchildren,
and issue respectively ; and either by way of
legacy, portion, present interest, remainder, or
otherwise, as he should by will or deed direct ;
it being the true intent of the parties, that A.
might either divide the premises in such por-
tions as he should think fit amongst his child-
ren, or appoint the entire to one or more child
or children, and charge the premises by way of
pecuniary provision for the other children.
Power was also given to A., to charge £200
for his own benefit, and a jointure and portions
for a second wife, and children of a second
marriage. By a settlement executed in 1844,
by A. and B., his eldest son, on B’s marriage,
reciting the power of appointment in the
settlement of 1810, and the powers to A. to
charge, and that A. had agreed to release the
208 Recitals,

latter powers, and that the lands in which A.
had a life estate were subject to debts, charges
and incumbrances stated in a schedule, and
that A. had made no appointment of the lands,
A. appointed the lands after his own death,
but subject to the debts, charges, and incum-
brances thereinbefore mentioned, and then
affecting the lands, and released his power of
charging the lands with a jointure and portions.
A. present annuity of £200 a-year, and a join-
ture of £300 for his intended wife were pro-
vided and secured by a term of 100 years. A
term of 200 years, puisne to the term of 100
years, was created, to raise £4000, portions for
the younger children of A. The schedule to
the deed comprised the £4000 portions, and a
sum of £530, a bond debt of both father and
son. Semble—The power would have autho-
rised an exclusive appointment: but—Held,
that the deed of 1844, operated as an appoint-
ment of the estate, subject to a charge of
£4000, which took priority of the jointure to
B.’s wife. That acharge of the bond debt was
created by the recital, and the appointment
subject to it, and also had priority over the
jointure. That, independently of the power,
the £4000 was a charge in priority to the join-
ture, under the deed of 1844.—Jn re Nash, 5
I. C. R. 384. (P.C.)

1. By lease, A. purported to demise to B. a
house and demesne, for three lives and twenty-
one years, at a rent. B.’s counterpart was
executed by him alone. No evidence was
given of the execution of the lease by A. By
a deed, dated on the following day, and which
was executed by B. alone, it was recited that
by indenture of lease, bearing date, &c., made
between A. of the first part, and B. of the
other part, A., for the considerations therein
mentioned, demised to B. the house and de-
mesne; and that it had been agreed that B.
should, in order to secure the payment of the
rent reserved by the lease, give a rentcharge
on certain lands to A., her executors, &c.,
during the continuance of the lease; and B.,
‘in consideration of the recited lease, granted
arentcharge for the threec. q. vies of the lease,
and thirty-one years, with the usual clause of
distress and entry, and a clause that, at the
expiration or other sooner determination of the
lease, and payment of all arrears of rentcharge,
the rentcharge should cease and be void. B.
entered under the lease, and remained in pos-
session for many years, until ultimately the
lease was evicted for non-payment of rent.
Held, that the grant of the rentcharge was
not void by reason of the lease not having
been executed by A., as B. was estopped by
the recital in the grant from denying its exe-
cution.

A recital in a deed of a particular fact is
binding on one who has executed the deed,
although it was not executed by him who re-
lies on the estoppel.

Quere—Whether an action for breach of a
covenant running with the land can be sus-
tained, where the lessor has not executed the
lease, though the lessee has entered into re-
ceipt of the profits of the property demised ?—
Hungerford v. Becher, 5 I. C. R. 417. (R.)

[DEEDS.]

 

_Provisoes, §c.

2. A surety signed a receiver's recognizance,
knowing it to be such. It recited that it had
been duly acknowledged before a Commissioner
of the Court, and was sealed. Held, that the
surety could not, on a motion to show cause
against an order nisi to put the recognizance
in suit, rely on the defence that it was not ac-
knowledged.— Driscoll v. Blake, 9 1. C. R. 356
(R.); Kelly v. Lennon, 9 I. C. R. 363; 41. Jur.
N.S. 147. (R.)

3. A father, G., joined in a settlement, exe-
cuted on the marriage of his daughter, which
contained a recital that he desired to give her
as a marriage portion such sum or child’s
share as he might be entitled to dispose of,
which child’s share it was calculated would be
at the least £5000, but the precise amount
could not be ascertained until his decease.
The intended husband, who had a power to
jointure to the amount of £10 per cent. on the
fortune which he should receive with his wife,
appointed a jointure of £500 a-year, which
was also collaterally secured on other lands
not the subject of the power. The daughter
died in G.’s lifetime. Held, that the recital
amounted to an absolute covenant that his
daughter should have, on his death, an equal
share of his personal estate with his other
children.

Semble—If it was not a covenant, it would
have amounted to a binding representation to
the same effect.

Held, that the obligation was not discharged
by the daughter’s death in his lifetime.

That in calculating the amount payable
under the covenant, sums advanced to other
children by.G. in his lifetime should be taken
into account and be added to the assets.

That interest should not be calculated on
the sums so advanced.— Duckett v. Gordon, 11
I. C. R. 181. (R.)

4. Demise of the whole territory or precinct
of land, commonly called A., containing in
itself by estimation thirty-two poles of land,
more or less; the whole territory or precinct
of land commonly called B., containing in it-
self by estimation six poles of land, more or
less; the whole territory or precinct of land
commonly called C., containing in itself by
estimation two poles of land, either more or
less; being in all forty poles of land; save
and except two poles of G., situate, lying and
being in the manor of A.—Held, a good excep-
tion. — Ellis v. The Lord Primate, 15 I. C. R.
237. (R.)

“

5. Demise of the whole territory or precinct
of land commonly called Termon, containing
in itself by estimation forty poles of land, save
and except two poles of Gortaquil, situate and
being in the manor, &c.—Held, that the ex-
ception of said two poles is good.

A conveyancer’s mistake does not entitle a
party to relief in Equity.—Ellis v. The Lord
Primate, 10 I. Jur. N. $. 61. (C.A.)

6. Demise of the whole territory or precinct
of land commonly called A., containing, &c. ;
the whole, &c., called B., containing, &c.; the
Descriptive

whole, &¢c., called C.; being in all forty poles
of land, save and except two poles of e situ-
ate, lying, and being in the manor of A. afore-
said. Held, that the exception was good.

X., tenant of G. and other lands, under a
church lease, demised G. to Y. for 21 years,
with at. g. covenant for renewal, and subse-
quently renewed his lease. This renewal, by
the conveyancer’s mistake, and contrary to
the intentions of the parties, who thenceforth
acted as if G. had been omitted therefrom, in-
cluded G. Held, that Y. could not maintain
against X. a suit for specific performance of
the covenant to renew.—FEillis v. The Lord Pri-
mate, 16 I. C. R. 184. (C.A.)

1, A marriage settlement recited a will,
whereunder the intended husband was enti-
tled, contingent on surviving his father, to a
share of the residue. The settlement further
recited a power enabling the trustees of the
will to advance ; and that upon the treaty, &c.,
it had been agreed that the husband should,
in order to provide for the wife, if she survived
him, insure his life ; and to provide further
for her in that event, it had been agreed that,
in addition to the amount secured by the insu-
rance be would convey to a trustee one-fourth
part of the share of such-residue as the hus-
band then was, or should at any time become
entitled to, under the will, or in pursuance of
the powers granted to the trustees thereof, or
of any application or appointment made or to
be made thereof. Covenants by the husband
to convey to trustees one-fourth of any por-
tion of the residue that should come to him
during the marriage by virtue of the will; and
for further assurance of that fourth part upon
the declared trusts, which were for the hus-
band for life, for the wife absolutely after
his death, if she survived him; otherwise,
for the children of the marriage. During the
wife’s life several advances were made to the
husband by the trustees of the will. The hus-
band, his father, and several children survived
the wife. Then the husband’s father died.—
ffeld, that the settlement bound only such por-
tions of the residue as came to the husband
during the coverture; and, therefore, that he
was not bound to convey the one-fourth to
which he became entitled on his father’s death.

Held also, that the advances were within the
covenant, and bound by the trusts——Armit v.
Bredin, 17 I. C. R. 165. (R.)

 

IL. 4. Respecting Words in Deeds: Words of
Description, Limitation, and Purchase.

2. The owner of an equity of redemption
conveyed it by a conveyance, absolute on its
face, to the mortgagee. A contemporaneous
memorandum declared that, if the mortgagor
repaid the consideration within three years,
the mortgagee would reconvey. The pur-
chase-money was the amount at which the
lands were valued. Possession followed the
execution of the deed. Evidence showed that
the transaction was a purchase, not a mort-
gage.—Held, that it was a conditional pur-
chase, and not redeemable.—wNeal v. Morris,
Beat. Rep. 597. (C.)

[DEEDS.]

 

Words. 209

8. A demise of “land, with the bog and
mountain thereunto adjoining,” does not con-
fer upon the lessees a right to cut turf for sale.
Chatterton v. White, 1 I. E. R. 200. (R.)

4. By marriage settlement lands were con-
veyed to A. (intended husband), his heirs and
assigns; if A. died, leaving one or more son
or sons of the marriage, the elder thereof, and
the heirs of his body, being always preferred
before the younger, with full liberty for A. to
make reasonable provision for such younger
children; if A. died, leaving no son, but one
daughter or daughters, then to such daughter or
daughters (if more than one), on their attain-
ing their respective ages of 21 years, their

-heirs and assigns, share and share alike.

There were four sons and four daughters. A.,
in pursuance of the above power, by will
charged the lands with £1500, to be divided
amongst the younger children in manner spe-
cified. The first taker disputed A.’s right to
charge in favour of daughers, one of whom
filed a bill to raise her share of the £1500.—
Held, that the power was well exercised; and
that, since the intention of the settlement was
to provide for daughters as well as sons, the
Court would effect that intention, and support
the appointment, by transposing the clause
creating the power, and that containing the
limitation to daughters if there was no son,
whereby the words “such younger children”
would include both sons and daughters.—Fen-
ton v. F., 1 Dr. & Wal. 66. (C.)

5. The words “bogs and turf-mosses,” in
their primary meaning, and when uncontrolled
by the context, signify a particular description
of land; and a grant thereof will pass the soil
and freehold in such descriptions of land.

An exception of bogs and turf-mosses in a
lease is not cut down to signify a reservation
of a right of turbary merely, but the fact that
the grantor also reserves to himself the right
of ingress, egress and regress, to dig for and
carry away the excepted premises.—Boyle v.
Olpherts, 41. E. R, 241; 1 L. & T. 320. (R.)

6. The Bishop of D., seized in fee in right
of his bishopric, demised to J. for twenty-one
years, all that territory of land called B., ex-
cept all royalties, mines, minerals, quarries,
and turbaries ; with liberty to dig, cut, save,
and carry away the same: provided always
that J. and his under-tenants actually residing
on the premises shall, notwithstanding the
reservation or exception of turbaries, be per-
mitted to cut, save, and take as much turf each
year during the demise, as may be sufficient
for their firing, to be burned or consumed on
the premises; but J., his executors, &c., and
his and their under-tenants, shall not by this
proviso have any right to cut or save turf for
their firing in other parts of the excepted tur-
baries, but such as shall, from time to time, be
marked out for them by the Bishop of D. J.
demised part of the lands to I. for twenty-one
years, with a toties quoties covenant for renewal,
by the description of all that farm in B.
which he purchased from R., and then in his

27
210 Descriptive

possession ; excepting and always reserving
out of this demise all royalties of what nature
or kind soever, as the same are and may be
excepted from time to time by the Bishop of
D. and his successors, from J., his heirs, and
assigns. When this demise was made, I. was
in possession of a portion of bog, as part of
the farm of B. which he had purchased from
R. The estate of J. vested in D., who, in
the year 1835, acquired the inheritance in the
lands under the 3& 4 JW. 4, c. 87. By the
conveyance of the fee, the Bishop of D.
granted to him the lands as described in the
lease to J., together with “ all royalties, mines,
minerals, bogs, mosses, and turbaries.” The
estate of I. vested in his sons W. and J. I.—
W. and J. I. having presented a petition for
a conveyance of the inheritance in the lands
demised to J., it appeared by the report of
the Remembrancer, that during the last fifteen
years, D. had used to give to his tenants
occupying other portions of the demised lands,
liberty to cut turf for their own consumption
on the portion of bog in the possession of W.
and J. I., and that the said under-tenants had
cut turf accordingly, without any hindrance
by W. and J. 1, or the Bishop of D.: and
that W. and J.I., and those from whom they
derived, had at all times cut turf for their
own consumption, and had given permission
to such persons as they thought proper to cut
turf upon the bog in their possession, without
any hindrance by the Bishop of D., J., or D.
Held, first, that the soil of the bog in the pos-
session of J., at the time when the lease was
made to him passed to him under that demise.

That the petitioners were entitled to a con-
veyance of the inheritance in the premises
demised by the lease to J.; and there ought
not to be therein inserted a covenant that it
should be lawful for D., his heirs or assigns,
to direct any person residing on the territory
of land called B., who had no bog within his
holding, to resort to the bog in the possession
of W. and J. I. for the purpose of cutting
‘turf thereon ; and that the persons so directed
might cut and carry away such quantity of
turf each year as might be necessary for their
own consumption, without any hindrance of
W. or J. L., their heirs or assigns.

In the conveyance to the petitioners, the
same general words were made use of, as were
‘contained in the conveyance from the Bishop
of D. to the respondent. See also the case of
Dockrill v. Dolan—Jrons y. Douglas, 3 1. E.
R. 601. (E.E.)

1. In the construction of articles of agree-
ment to settle lands, the words “issue male,”
and “heirs of the body,” may be moulded to
mean “first and other sons.”—Rochfort v.
Fitzmaurice, 2 Dr. & War. 23; 1 Con. & L.
158; 41. E.R. 3875. (C.)

2. By a marriage settlement, freeholds and
‘chattels real were settled upon the husband
for life, with power to appoint by will among
the children of the marriage, and in default of
appointment the property was to be divided
equally among the children. Held, that the
shares of the children did not vest until the

[DEEDS.]

 

Words.

death of the husband.—Heron v. Stokes, 3 I.
E. R. 163. (C.)—[Reversed on re-hearing, 4
I. E.R. 284; 2 Dr. & War. 89; 1 Con. & L.
270. (C.)—Decree on re-hearing reversed,
12 Cl. & F. 161.)

3. A. being indebted, but not in any debts
which affected real property, by deed poll con-
veyed certain of his real estates upon trust to
raise money “for the purpose of paying all
debts due by him to any person whatsoever,
and which then affected his said estates
thereby conveyed.” A. at the time was in-
debted upon bonds with which he had given
warrants of attorney, but no judgments had
been entered. Held, that the trust included
his bond debts, but not his simple contract
debts.

The acts of the parties cannot be allowed
to affect the construction of deeds.—Douglass
v. Allen, 2 Dr. & War. 218; 1 Con. & L. 367.

C.)

4, Upon the occasion of W.’s marriage, S.,
his father, to whom the estate was to revert
in default of issue male of the marriage
attaining twenty-one or marrying, covenanted
that in case there should not be male issue,
or that all such issue should die under
twenty-one, or there should be more than
three daughters, he would in such case pay
an additional portion to W.’s daughters at
their age, in such shares as W. should ap-
point, and in default of appointment amongst
such daughters, if there were three or more,
share and share alike. There were sons of
the marriage, who all attained age, and three
daughters, one of whom died unmarried, and
under twenty-one; a second attained age, and
died unmarried; the third having attained
age and married, filed a bill to raise the addi-
tional portion. Held, that the second “or”
was to be read “and,” and that the addi-
tional portions were not to be raised.

In a deed or will the word “or” may be
construed to mean “and,” and “and” may be
construed to mean “or,” if such a construc-
tion be necessary to give effect to the inten-
tion of the party by whom the word is used.—
White v. Supple, 2 Dr. & War. 471; 1 Con. &
L. 525. (C.)

5. The word “leave” construed “have,” to
favour the vesting of portions.—Houston v.
Barry, 51. E.R. 294, (E.E.)

6. An estate was settled to A., B., and C.,
as tenants in common for life, with succes-
sive remainders to their issue male and fe-
male in tail, remainder “in case one or two
of the said A., B., and C. should happen
to die without issue of her or their bodies,
then as to the share or shares of such one
or two so dying without issue, to the use of
all and every the daughter and daughters
of such survivor or survivors, as tenants in
common in tail.” Held, that the word “ sur-
yivors” might be construed “others,” and that
the daughters of one of the tenants for life,
who did not survive, were entitled under the
limitation.
Descriptive

The judgment in Doe v. Wainwright (5 T.
R. 427), lays down the abstract’ point, that
“survivors” is not to be construed “others.”—
Cole v. Sewell, 6 I. E. R. 66; 2 Con. & L. 344;
4 Dr. & War.1. (C.)

1. A., by deed reciting that he was indebted
to B. in £400, conveyed lands in trust “ out of
the interest, proceeds, or annual rent thereof,
to pay the head rent, and also the premiums
of insurance upon the life of A. for £500, and
also to pay B. the £400, with interest at £6
per cent. until paid, and after payment thereof
toreconvey to A.” Held, that the deed did not
constitute B. a mortgagee so as to entitle him
to foreclose, but merely gave him the right to
be paid out of the rents and profits——Taylor
v. Emerson, 6 I. E. R. 224; 4 Dr. & War. 117;
2 Con. & L. 658. (C.)

2. When one, having several estates or in-
terests in lands, joins in conveying to a pur-
chaser all his estate and interest in the lands,
every estate or interest vested in him, though
not in the character in which he became a
party to the conveyance, will pass thereby.—
Drew v. Earl of Norbury, 9 I. E. R, 171, 524;
3 Jon. & L. 267. (C.)

38. T. settled the lands of A. (freeholds) on
J. and his issue in strict settlement, with an
ultimate remainder to “H. his heirs and as-
signs;” and the lands of B. (partly freehold,
partly chattel) were settled on T. for life ;
afterwards ‘to several uses, intents, and pur-
poses as are hereinbefore expressed and de-
clared, respecting the said lands of A.” The
deed briefly recapitulated the previous limita-
tions to J.’s family, after J.’s life estate, and
gave the ultimate remainder “to and for the
use and benefit of the said H., subject to the
provisions hereinbefore made for the issue of
the said marriage.” Held, that H. took an
absolute interest in B., notwithstanding the
absence of any words of limitation.— Garde v.
G., 3 Dr. & War. 435; 2 Con. & L. 175. (C.)

4, By marriage settlement, a father gave to
his son an annuity during his own life, charged
upon lands of which the father was tenant for
life, with remainder to the son for life; and
conveyed other lands held for lives renewable
for ever, to which he was absolutely entitled,
upon trust to permit him, his heirs and assigns,
to receive the rents during his son’s life, and
subject thereto to secure a jointure to the son’s
intended wife, and portions for his younger
children, and subject thereto for the father
absolutely. It was declared that the portions
should be payable to the younger children at
twenty-one or marriage, if such events should
happen after the death of the son, and if be-
fore, then in three months after his death,
“and not sooner, unless with the consent. of
the father, if living, and if dead, of the son.”
Held, that this enabled the son, after the
death of the father, to charge the lands with
a portion for a younger child of his, who had
attained twenty-one, and to make it payable
immediately.—Keily v. K., 5 I. E.R. 485; 4
Dr. & War. 38. (C.)

[DEEDS.]

 

Words. 211

5. By settlement of 1786, A. was made te-
nant for life, remainder to J. for life, remain-
der to the first and other sons of J. in tail
male, remainder to J. in fee. A. and J. were
empowered to make leases of the settled
estate. By lease of 1787, A. and J. demised
part of the settled estate to G., and cove-
nanted for the quiet enjoyment of the lessee
and her heirs, against the acts of the lessors,
or the acts of any person claiming under
them. This lease was not warranted by the
power. In 1819, a settlement was executed
on the marriage of F., the eldest son of J.,
whereby J. and F. joined in re-settling the
estate; and thereby a present provision out
of the lands was made for F. during the life
of J.; and the estates were charged with
sums for portions for the younger children
of J., and for his own benefit; subject to
which they were limited in the usual course
of family settlements. J. and F. covenanted
that the lands were free from incumbrances,
“such leases of the premises as have been
heretofore really and bona jide made, only
excepted.”. J. died. F. brought an ejectment
to recover possession of the lands demised by
the lease of 1787, and obtained judgment.
The persons interested in that lease filed a
bill for an injunction, and to compel F. to
confirm it; insisting that, by the settlement
of 1819, he had agreed to confirm the lease.
It was decreed accordingly —Gray v. Knox, 5
I. E.R. 465. (&.E.)

6. In 1820 A. conveyed his life estate to his
son B., who covenanted to indemnify him
against debts, including a bond of W. Jn 1822
W. obtained a judgment against A. In 1824 B.
conveyed the estate, in trust to sell and pay,
first, the mortgage debts mentioned in the
first schedule of the deed; then the judgments
in the second schedule, and entered up against
B.; and then bond debts in a third schedule :.
the debts to be paid in such priority as to the
trustee should seem proper. The second
schedule purported to set out the judgments
affecting the lands appearing on record against
A. and B., and enumerated among them the
judgment of W. The trustee did not deter-
mine the priorities. Held—that W.’s judgment
was not to be postponed to judgments against
B., and that the words “entered up against
B.” might be rejected in construing the deed.
—Taylor v. Gorman. 61. E.R. 684. (C.)

7. A sum belonging to an intended husband
was vested upon trust to pay the interest to.
the husband, during the joint lives of the
husband and wife; and, after his decease,
to permit his wife to receive it during life,
subject to such control and limitations as the
husband should by will appoint amongst the
issue of the marriage living or likely to come
forth; in default of such issue or of such
will, to the wife for life; after her decease, as
she should appoint, amongst such of the issue
as should be then living; in default of ap-
pointment, equally; if no issue living at the
wife’s death, over. The wife died leaving the
husband and several issue surviving. Meld;
that the husband was not entitled to the trust
fund for his own benefit.—Smith v. Doolan, 2
212 Descriptive
Jon. & L. 747. (C.}—[See Doolan v. Smith, 9
I. E. R. 426; 3 Jon. &. L. 547. (C.)]

1. In execution of an arrangement to pay
off incumbrances, A., being owner in fee, con-
veyed the fee to B., who re-demised for lives
renewable for ever to A., at a rent equal to
£6 per cent. on his purchase-money, to hold in
the same manner as A. then held and enjoyed
the same. The lease contained the common
covenants, including one to deliver up the
premises in repair, except casualties by fire.
Held, that A. did not retain the rights of an
owner in fee subject to the rent, but was re-
strainable from committing waste.— Coppinger
v. Gubbins. 9 I. E. R. 304; 3 Jon. & L. 397.

©.)

2. A father conveyed lands by lease and re-
lease to his son, in consideration of natural
love, and “ to entitle him to a wife and fortune
now in contemplation,” to hold “to the sepa-
rate use” of the son, “his heirs and assigns for
ever.” It was not proved that any particular
marriage was in contemplation at the date of
the deed. The son survived the father, but
died unmarried. Held, that the fee was vested
in him absolutely by the deed.— Alleyne v. A., 8
I. E. R. 493; 2 Jon. & L. 544. (C.)

3. In 1799, N., for value, agreed to demise
to C. lands, for three lives and 61 years. Held,
that that agreement ought to be executed by
granting a lease for three lives, with a rever-
sionary term of 61 years, from the death of the
survivor of the lives; and not a concurrent
term from the commencement of the lease.—
Blackhall v. Nugent. 5 I. C. R. 323. (C.)

4. A marriage settlement erroneously re-
cited that K. (the father of the intended hus-
band) was seized in fee-simple of lands in the
counties of M. and §., thereby intended to be
conveyed ; and also of lands in the county of
R., intended to be conveyed by a separate
deed. It then conveyed, by specific names,
several denominations in the county of M.,
some of them situate in the barony of G.,
and some in the barony of C.; “and all or any
other the lands of the said K., or under any
other denomination, situate in the barony of
T., G., or C., in the said county.” Then seve-
ral denominations specifically named, “and
all or any the lands of the said K., or under
any other denomination, in the barony of B.,
in the county of M.;” and lastly, one deno-
mination, specifically named, in the county of
S. All these were conveyed to uses techni-
cally applicable to estates in fee only. The
fact was, that K. was seized in fee of some
only of the above denominations; the others
he held under a Bishop’s lease, renewable.
Under the same lease he held a denomination,
D., in the barony of T., and a denomination,
R., inthe barony of C., neither of which was
specifically named/in the deed. He had no
property in the barony of T., except D.
ffeld, that the denominations D. and R.
passed under the general words, “and all or
any other the lands of the said K., or under
any other denomination, situate in the barony

(DEEDS. ]

 

Words.

of T., G., or C.”—In re Knox, 6 I. C. R. 36.
(LE.C).

5. A decree declared C. entitled to the divi-
dends of a fund for hislife, provided he should
not become bankrupt or insolvent; and that
from and after his decease, or in case of his
bankruptcy or insolvency, A. and V. would be
entitled upon the trusts of C.’s marriage ar-
ticles. By the articles the fund was vested in
them, upon trust to permit C. to receive the
dividends for his life, provided he should not
become a bankrupt, or apply for or obtain his
discharge under any Act or Acts for the Re-
lief of Insolvent Debtors; and if C. should,
during the joint lives of himself and his wife,
become a bankrupt, or apply for or obtain his
discharge under any Act or Acts for the
Relief of Insolvents, then to pay the dividends
to the separate use of his wife; and if the
wife should not be living at the time of such
bankruptcy or insolvency, or should, after the
happening of either of the said events, die in
the lifetime of C., leaving issue of the mar-
riage, upon trust to apply the dividends to
the benefit of the issue, as C. should appoint.
C., after his wife’s death, presented a petition
for his discharge under the Insolvent Act,
which was afterwards dismissed with the con-
sent of his creditors. The schedule filed in
the Insolvent Court showed that he was in a
state of insolvency. Held, that the limitation
over on the bankruptcy or insolvency of C.
had taken effect, and that his assignee had no
right to the dividends of the fund, either
under the decree or the articles.

The word “insolvent,” in a decree or deed,
isto be construed in the ordinary sense of a
person who is unable to pay his debts, and not
in the technical sense of one discharged as an
insolvent debtor.— Caulfield v. Maguire, 5 I. C.
R. 78. (R.)

6. By indenture, P. granted to L., T., and S.
respectively, their respective executors, &c.,
an annuity, for the life of P., charged upon
the lands in the deed mentioned, to hold to
L., T., and §., their respective executors, &c.,
for the life of P. The deed further contained
covenants by P. with L., T., and S., their re-
spective executors, &c., and their respective
heirs and assigns. The consideration money
was advanced in equal shares by L., T., and
S8.—Held, that the deed disclosed an intention
that L., T., and 8. should take the annuity as
tenants in common, and not as joint tenants,
and that a Court of Equity would carry that
intention into effect.

Semble—The words were sufficient to create
a tenancy in common, even in a Court of
Common Law.—Fleming v. F., 51. C. R. 129;
11. Jur. N. 8. 31. (C.)

7. A marriage settlement conveyed renew-
able freeholds to trustees and their heirs, upon
trust to permit and suffer the lands to be
enjoyed for ever by the issue male of the mar-
riage. The settlement contained expressions
affording some evidence of an_ intention to
grant a perpetual interest—Held, that the
sons of the marriage took only estates for
Descriptive

life— Barron v. B., 8 I. C. R. 366. (C.)—Dru.
Rep. temp. Napier, 384.

1. S. agreed to grant to B.a lease of the
lands of T. The agreement contained a pro-
vision that the lease should “give exclusive
a ea and coursing, but not fishing.”

Semble—That S. was entitled to the exclu-
sive right of fishing in the premises agreed to
be demised.—Browne v. ‘Shigo, 10 LC. R.1;
51. Jur. N.S. 85. (C.)

2. By deed reciting the grantor’s intention
to found and benefit certain charities, lands
were conveyed on trust to pay annuities for
their maintenance, “without any abatement,
deduction, or defalcation whatsoever.” The
trustees were directed to pay other annuities
for the benefit of other charities. The estate
proving deficient to pay all the annuities, the
Master decided that those ordered to be paid
“without any abatement,” &c., had priority.
Held, that they had not any priority over each
other. The doctrine of cy-pres in reference to
charities expounded.—In re Evans’s Charities,
OL C.R. 271. (C.)

3. A marriage settlement vested freehold
leases in trustees “to hold to the use of A.
and his heirs and assigns, from the perfection
of these presents, for and during the term of his
natural life, without impeachment of waste,”
with a power to lease; remainder to the
trustees to preserve, &c., and from the decease
of A. to secure a jointure of £80 to B. (A.’s
wife). Then followed a covenant by A. charg-
ing the jointure on after-acquired estate, with
power of distress; “and further, that said lands,
after the decease of the survivor of A.and B.,in
case there should be but one child of said mar-
riage, to the use of such only child, and the heirs
of his or her body lawfully issuing ; and in case
there should be more than one such child, then
to such children in such shares and proportions
as A. shall by deed or willappoint ; in default
of appointment, to the use of all the children,
as tenants in common, share and share alike.”
Held, that the words “and his heirs” should
be rejected, and that A. took a life estate.

That the clause beginning “and further”
is a limitation in continuation of, and direct
sequence upon the limitations to trustees to
preserve.

Semble—That if that clause be a covenant
to settle after-acquired property on the child-
ren, a Court of Equity would not mould the
trust in any manner, as they are fully de-
clared.

Semble—That, assuming it to be such a
covenant, after-acquired property settled irre-
spective of such covenant by A. on a child,
must be brought into hotchpot.—Jn re Ham-
mersley’s Estate, 11 I. C. R. 229. (L.E.C.)—
(Affirmed, 12 I. C. R. 319; 61. Jur. N.S. 328.
(C.A.)]

4, Lands were conveyed by aregistered deed
to a purchaser, subject to “existing leases and
lettings made to the under-tenants” of the
vendor. Held, that a parol contract for a

[DEEDS.]

 

Words. 213

lease, with part performance, of which the
purchaser had no notice, was not an existing
lease or letting within the meaning of the deed.

Semble—A contract by the vendor, duly
signed, according to the Statute of Frauds,
would be an existing lease or letting within
the meaning of the deed, and binding on the
purchaser.—The distinction between equitable
estates and equitable rights considered.

In a suit for specific performance of a con-
tract relating to lands, the documents relied
on to prove the contract must be put in issue
specifically by the petition.

Semble—Part performance of a contract is
not binding on a purchaser for value without
notice.—Rice v. O'Connor, 11 I. C. R. 510.
(R.)—[Reversed, 12 I. C. R. 424; 71. Jur.
N.5. 109. (C.A.)]

5. C. seized of freehold estates, became
insolvent, and executed an assignment of all
his property to the official assignee. The
assignment was not registered; nor did the
official assignee enter into possession of the
freeholdestates. The Commissioners of Public
Works afterwards advanced several loans to
C., to be laid out in the improvement of his
estates. Held, that C. was an owner, within
the 1 Vic., c. 32, and that the loans were valid
charges on the lands.—In re Fitzgerald’s Es-
tate, 121.C.R.81. (L.E.C.)

6. R., in 1776, upon his marriage, settled
his real estate to the use of himself for life,
remainder to trustees for 300 years, remainder
to the first and other sons of R., successively
in tail male, remainder to the first and other
daughters of the marriage, successively in
tail male, remainder to the right heirs of R.
The trusts of the term were declared to be to
raise £3000 for the portion or portions of the
daughter or daughters and younger son or
sons of the marriage; if there should be more
than one daughter or younger son, to be pay-
able among such daughters or younger son as
R. should appoint; in default, equally; but if
there should be only one daughter or younger
son, who should not at the time of the decease
of R. be his eldest son, to raise a sum not ex-
ceeding £2000, as the provision for such only
daughter or younger son as R. should appoint.
R. had issue two daughters only, M. and E.,
and died in 1785. On the marriage of M., in
1802, the lands were put in settlement, giving
estates tail to the first and other sons of M.,
remainder to the first and other daughters in
tail male.

In 1814, a bill was filed against M., her hus-
band, and T., her eldest son, an infant, to
raise charges affecting the settled lands. T.
died, leaving H., the eldest daughter of M.
the first tenant in tail of the settled lands,
against whom the suit was revived. :

In 1818 a report was made, finding that the
estates were charged, under the settlement of
1776, with £3000 for E. ;. and in the same year
a decree declared that sum well charged on
the lands, and directed a sale of the fee to
pay the charges.

‘ This decree did not reserve a day to show
cause, though H. was an infant. The guar-
214 Descriptive

dian ad litem of H. had an interest adverse to
hers. Interest on the sum of £3000 was paid
by M. down to her death, and after her death
by the respondent W., down to 1858.

In 1860 a petition was presented by E.
against W., a son of M., born after the decree
of 1818, and the first tenant in tail under the
settlement of 1802. This petition stated the
decree of 1818, but did not rely on it as an
estoppel, nor pray to have it carried into exe-
cution. Held, that the word “daughter,” in
the settlement of 1776, meant “daughter not
entitled to the estate.”

That the decree of 1818 was wrong in sub-
stance and form.

That W.was not, in the form of suit adopted,
bound by this decree.

That he was not bound by the acquiescence
evidenced by the payment of interest; and
that only £2000 ought to be raised.—Stirum v.
Richards, 12 I. C. R. 323; 71. Jur. N. S. 69.
(C.A.)

1. By indenture of settlement, executed be-
fore the marriage of A., freehold lands were
settled upon trust for the younger sons of the
marriage, successively in tail male; and the
settlement provided “that if, after the death
of A., any of the aforesaid younger sons shall
become an eldest son, and, by the death of an
eldest brother without issue male, become the
heir male of the body of the said A., then,
and so often as such case shall so happen,
after the death of the said A., the trust for
such younger son shall become void; and the
trust of the said premises shall go and remain
over, as if such younger son, becoming such
heir male, was déad without issue male.”—
Held, that a quasi estate tail vested in the se-
cond son of A. immediately on his birth, and
was not devested by the death of the eldest
son in the lifetime of A.—In re Frend’s Estate,
121. C. R. 367. (L.E.C.)

2. By a written agreement, A. agreed to let
to B. a slip of ground, “bounded on the north
by a road dividing said lot from Mr. T.’s
holding.” At the corner of the agreement,
under the signaturés, was the following memo-
randum, signed with B.’s initials:—‘The little
angle at the road, opposite to T.’s, to be added
to the road.” The little angle was at the south
side of T.’s road. The lease executed, in pur-
suance of the agreement, stated the lot to be
bounded, “on the north by aroad dividing said
lot from Mr. T.’s holding ;” and referred to a
map, which erroneously described T.’s road as
a straight line, instead of a curve, and did not
contain the memorandum at foot of the agree-
ment.

Held, that parol evidence was not admissi-
ble to show that it was intended that the
angle should be excluded from the lease.

That according to the true construction of
the agreement, T.’s road, as it existed at the
time, was to be the northern boundary; but
that B. was bound to throw the angle into
the road, and that a covenant to that effect
should have been inserted in the lease. As-
suming parol evidence to be admissible, the

[DEEDS.]

 

‘Words.

evidence of the parties being conflicting as to
the intention to include the angle in the lease.
Held, that the lease could not be reformed in
that respect.

B. undertaking, by the decree, to throw the
angle into the road, the petition was dismissed
with costs, except so far as it might be neces-
sary to enforce the undertaking.—Gray v.
Boswell, 131. C. R. 77. (R.)

3. Demise of a part of the lands of L.,
together with the bog in the possession of
the lessee, situated in the bogs of L. and R.
The lessee was in possession of part of the
bog of R., in which he had cut turf for his
own consumption, but not for sale. Held, that
the lease did not confer a right to cut turf
for sale on the bog of R.—Fowler v. Blakely,
131.0. R.58. (R.) :

4, G. agreed in writing to let to B. a plot
of ground, “ bounded on the north by a road
dividing said lot from Mr. T.’s holding.” On
one corner of the agreement B. indorsed, and
signed with his initials, this memorandum :—
“The little angle at the road opposite to T.’s
to be added to the road.” In a lease, exe-
cuted in pursuance of this agreement, the
northern boundary of the demised premises
was stated to be “the road dividing the said
lot from Mr. T.’s holding;” no provision for
adding the angle to the road was made. G.
instituted a suit to reform the lease, by ex-
cepting the angle from the demise. Held,
that no relief could be granted, because the
petition sought to retain the angle in G.’s
dominion, without obliging him to add it to
the road.—Grray v. Boswell, § I. Jur. N.S. 81.
(C.A.)

5. Lands held under a lease for lives renew-
able for ever were conveyed by deed to a
trustee. By a subsequent deed the trustee
declared that the previous assignment had
been accepted by him, “to the uses and for
the trusts following—upon trust, to permit A.
and B. his wife to hold one-third of the lands
during their joint lives, and the survivor, for
the life of such survivor; and after the death
of the survivor, to be held by such child or
children of A. and B. as should be living at
the death of the survivor, in such shares and
proportions as A. in his lifetime, or B., if she
survived him, should appoint (if only one child,
to take the whole); and, as to one other third
of the interest in the said lands, upon trust
for X., his heirs and assigns, for ever; and,
as to the remaining third of the interest in
the said lands, upon trust for Y., his heirs
and assigns, for ever, and to no other use,
intent, or purpose whatsoever” Held—(per
Curiam), that, as it was manifestly intended
to dispose of the entire interest in the lands
by this deed, the absence of words of inherit-
ance in trust to the children of A. and B. did
not prevent A. from appointing to one of the
children the quasi fee of the lands.—In re
Bayley’s Estate, 9 1. Jur. N.S. 398. (C.A.)

6. A., entitled to leasehold and fee-simple
estates, devised the latter upon trust for his
Descriptive

eldest grandson, B., for life, if he should at-
tain twenty-three ; remainder to his sons in
tail male; and, if B. should not attain twenty-
three, then upon trust for whichever of A.’s
younger grandsons first attained twenty-three,
for life; like remainder to his sons; remain-
der over. After directing several legacies
and annuities to be paid out of his leasehold
estates, he bequeathed his residuary estate
(which included his leasehold estates) to his
seven younger grandsohs, share and share
alike. B. attained twenty-three, and died,
‘without issue, in 1849. By deed in 1834,
reciting that A. by will, after devising several
legacies, had bequeathed the residue of his
property, comprising (amongst others) lease-
hold interests, to his seven younger grand-
sons, and that C., one of A.’s grandsons, was
entitled under this will to a seventh share
of A.’s residuary estate, consisting (among
others) of the lands thereinafter mentioned,
C. granted D. all his seventh share of A.’s
residuary estate, and in particular all his
estate and interest in his seventh share of
the leasehold estates (which were specifi-
cally enumerated), “and all the estate and
interest of him, tlfe said C., therein, or in any
other lands which were part of the residuary
estate of the said A.,” to have and to hold the
leaseholds, “and other the share which the
said C. is at present entitled-to of any lands
or tenements, or any other property part of
the residuary estate of A.,” unto D., his heirs,
&c. Held, that C.’s contingent reversionary
interest in the fee-simple estates passed there-
under.—In re Rorke’s Estate, 9 I. Jur. N.S.
409. (C.A.)

e

1. E., for value, granted to D. and his
heirs an annuity of £30, charged upon free-
hold lands, upon trust for M. until her death
or marriage. By the same deed E. covenanted
to pay M. £500 upon her marriage with the
consent in writing of H. M. married without
the consent of H., but with the knowledge
and assent of E. E., by a deed subsequently
executed, conveyed the same lands to trus-
tees, upon trust to secure to M. an annuity of
£17. 10s., “the same to be paid and payable
to her until such time as she should be paid,
or sufficiently secured, in a sum of £500,” the
same to be for her sole and separate use and
benefit.—Held, that the annuity of £17. 10s.
did not terminate on the death of M.— Watson
v. Powell, 141. C. R. 88. (C.)

2. By marriage articles, the intended hus-
band, A., in consideration of the marriage,
and of the intended wife’s (B.’s) fortune,
agreed to convey lands in trust for himself
for life; and, if B. survived him, to her use,
and that of their child or children; if no
child, to the use of B., her heirs, &c. Held,
that a settlement, pursuant to the articles,
should give B. « life estate, with remainder
to their children.

In 1812 lands held for lives renewable were
conveyed by C. to the use of himself for life,
remainder to A. and his heirs. C. died. In
1813 A., who did not appear to have gone
into possession, by marriage articles, agreed

[DEEDS.]

 

Words. 215

to settle the lands on himself for life, re-
mainder to his wife, B., for life, remainder to
the petitioner D. In 1814 a renewal was
granted to the heir-at-law of C. In 1827
A. died; D.’s right under the articles then
accrued. C. and those claiming under him
remained in undisturbed possession from 1814
till 1862. Held, that D.’s right under the
articles was barred by the Statute of Limi-
tations. That, although the petition did not
pray specific execution of the articles, yet
the claim,'as founded on them, was barred by
laches, independently of the Statute of Limi-
tations.—Rossiter v. R., 14.1. C. R. 247. (B.)

3. By a marriage settlement, the equitable
interest in a moiety of lands, held for lives
renewable for ever, was conveyed to trustees,
in trust, after the decease of the wife, in case
there should be any issue of the said intended
marriage, to pay and apply all and singular
said full moiety or one-half of said estates and
properties amongst said children, share and
share alike; the yearly rents, issues and profits,
and the interest and produce thereof, to be paid
to and amongst them until the youngest of
said children shall attain the age of twenty-
one years, and then to divide the said moiety
of said estate and property, and principal sum
and sums of money, equally between and
amongst them. Held, that an only child took
only an estate for life.

In a deed words of limitation are necessary
to pass the entire estate in a lease for lives
renewable for ever, whether the estate con-
veyed be legal or equitable.—Brenan v. Boyne,
15 I. C. R. 189. (R.)—[Reversed: 161. C. R.
87. (C.A.)] ;

4. A., being seized of lands, covenanted with
his intended son-in-law (B.) to give them to B.
as a portion with his daughter. A. and B.
further covenanted that the lands should be
to her use during her life, then (subject to
an equivocal limitation in B.’s favour) to the
use of the “issue.” A. reserved to himself a
life use, and a provision for his wife if she
survived him. ‘This deed was executed in
1760. By a subsequent deed, A. assigned to B.
all his estate in the lands, to hold during A.’s
life. This deed was executed in 1766. In 1768,
A.and B. executed a third deed for the express
purpose of explaining and confirming that of
1760. They thereby conveyed their respective
interests to a trustee, but limited interests to
themselves and to their respective wives, with
an ultimate limitation to the “issue” of B. ;
omitting words of inheritance. This deed
also gave B. and his wife a power of appoint-
ment to and amongst the “issue.” Held,
that notwithstanding these several deeds, the
legal reversion in fee still remained vested in
A., but that the beneficial interest should be
deemed to have become altogether vested in
B. and his issue; and that this construction
should still be acted upon, notwithstanding
the lapse of time, the enjoyment hitherto
having been always in accordance with it.
The legal estate and the beneficial interest
having however become vested by descent in
216 Voluntary

the last owner, the question as to whether
there was not a merger of the latter was re-
served for further argument.—In re Given’s
Estate, 15 I. C. R. 828. (L.E.C.)

1. V. devised all his estate to his brother,
“by discharging all his bequests and just debts
at the direction of his executors ;” if not, the
estate was to be sold by auction, at the discre-
tion of his executors, whom he wished to dis-
charge his just debts. Held, that the executors
took no interest in V.’s real estate, but had
merely a power to sell.

There in no Irish statute corresponding with
the 21 Hen. 8, v. 4 (Eng.). Therefore if two
executors have a power to sell real estates, and
one of them renounces, the power cannot be
exercised by the other.

Quere—Whether a power to sell real estate
is sufficient to entitle a party to sue for a
specific performance of an agreement for a
partition of it—Thompson v. Todd, 15 I. C. R.
337. (R.)

2. A Scotch deed, aptly worded, may operate
as a marriage, so that an interest limited to
vest on marriage may pass thereby, although
it could not pass unless vested. “Presently”
Held, to mean “immediately.” Lockhart’s
Trust; ex parte Lady Lockhart, 11 I. Jur. N.S.
245. (R.)

3. By marriage settlement the equitable
interest in lands held under a lease for lives
renewable for ever, was conveyed upon trust,
after the settlor’s death, to divide them into
moieties, to stand seized of one moiety for
the settlor’s daughter (the intended wife) for
life, and after her death, leaving issue, to pay
that moiety among the issue, share and share
alike; the yearly rents, &c., and the interest
and produce thereof, to be paid to and
amongst them, until the youngest of them
should attain twenty-one, and then to di-
vide all that moiety of the estate and prin-
cipal money among them equally; and if the
intended wife died without issue living at
her death, then to apply that moiety to the
husband’s use for life, and after his death to
the use of the intended wife’s sister, and of
her heirs and assigns; and if she died with-
out issue living at her death, to the use of the
settlor, his heirs, executors, &c. Held, that
the wife’s only child by this marriage took
the absolute interest in a moiety of the lease.

By the Lord Chancellor—That in a deed,
words of limitation are not necessary to pass
the entire interest in a lease for lives renew-
able for ever, if other words are used or de-
clarations made conveying the lessee’s whole
estate, or declaring the trusts of the whole
estate vested in trustees.

Cases on this subject reviewed.

Doctrines of the law touching estates pur
autre vie, and occupancy, considered and dis-
cussed.— Brenan v. Boyne, 16 I. C. R. 87.
(C.A.)—[Revg. 15 I. C. R. 189. (R.)]

4, Words of limitation are not necessary to
pass by deed the entire estate in a lease for

[DEEDS.]

 

Conveyances.

lives renewable for ever.—Betty v. Elliott, 16
I. C. R. 110. (R.)

 

Il. Vorunrary Deeps, Converances, &c.
1. In general.
2. When good as against Creditors.
3. When void as against Creditors.
[See also Dr. anv Cr. VI, 2, and Banx-
Ruptcy, XI, 6.]

 

I. 1. Voluntary Deeds, Conveyances, §c., in
general,

5. By marriage articles, reciting the lady’s
fortune to be £1000, the husband agreed to
settle £4000, secured by his bond and judg-
ment, with a proviso that the bond should be
void if he should afterwards settle lands to
the value of £100 a-year. He settled lands
to an amount considerably beyond £100 a-
year. The lady’s friends had given an addi-
tional £1000. The husband became bank-
rupt. His assignees filed a bill, praying that
the latter deed might be deemed fraudulent
and void against the plaintiffs, so far as it
purported to settle lands of a value greater
than £100 a-year. Held, that it could not be
impeached as voluntary as to that excess.—
Maguire v. Nicholson, Beat. Rep. 592. (C.)

6. Covenants by the trustees in u deed of
separation,—that wife could live apart, never
seek for restitution of conjugal rights, and
would support and educate the children of
the marriage; and evidence that the wife
had, én consideration of the provision made
for her by the separation deed, given up an
annuity to which she was entitled by a post-
nuptial settlement, considered sufficient to
constitute valuable consideration for the an-
nuity granted by the separation deed, so as
to prevent it being treated as a voluntary in-
strument.—Nixon v. Hamilton, 2 Dr. & Wal.
364; 11. E.R. 46. (C.)

7. Voluntary assignment of a chose in action
(a promissory note), by indenture, which also
contained a provision appointing the assignee
the irrevocable attorney of the assignor for the
recovery of the amount due on the note, will,
as the transaction is complete by the execu-
tion of the deed, be carried into execution.—
Blakely v. Brady, 2 Dr. & Wal. 311 (C.); Gan-
nonv. White, 2J.  R.2207. C. :

8. A., by deed of 1828, conveyed lands to
B. in trust for A., for life, then to permit C.,
a married woman, to receive an annuity for
her separate use, and subject thereto in trust
for D. in remainder. D., a party to this deed,
covenanted to pay the annuity to C. D. be-
ing in possession of the lands, subsequently
mortgaged them for value to E., who had full
notice of C.’s rights. E. contended that the
deed of 1828, being voluntary, was void as
against his mortgage. Held, that it was not
voluntary guoad D.; and that claimants
through D. were no better off.

When there has been a voluntary convey-
Voluntary Deeds.

ance, and afterwards one for value, made by
successive owners of the same estate, it ap-
pears to create no exception to the general
rule that notice will not preclude a subse-
quent purchaser for value from relying upon
the Statutes against voluntary or fraudulent
conveyance, as against a party claiming under
a prior voluntary deed.—Blake v. Hyland, 2
Dr. & Wal. 337. (C.)

1. Upon a bill, filed to impeach a voluntary
settlement as void against creditors, the ptf.
proved the existence of but one debt, of small
amount, existing at the date of the settle-
ment; and there were not in the case any cir-
cumstances to induce the Court to suspect
that the settlor was at that time largely in-
debted. An inquiry touching the amount of
his debts at that period was refused.— Manders
v. MW, 41. E. R. 434. (E.E.)

2. Distinction between voluntary settle-
ments, in which the donor’s object is bounty,
and voluntary conveyances, in trust to pay
debts to which the creditors are not parties.—
Simmonds v. Pailes, 8 I. E. R. 335; 2 Jon. & L.
489. (C.)

3. 8. entitled to a lease for lives, by lease
and release of the 5th March 1833, in consi-
deration of love for his eldest son, J., and to
advance him in life, and to entitle him to a
wife and fortune now in contemplation, con-
veyed the lands to J. and his heirs. The deed,
executed by J. and S., was registered nine
months later by 8., who retained possession
of it, and, with J.’s assent, contgnued till
death to act as owner of the lands. S. de-
vised all real, freehold, and personal property
of which he should die seized or possessed to
J., if “he shall recover from his present ill-
ness,” and named V. residuary legatee. When
the deed of 1833 was executed, there was not
any particular marriage contemplated. J.
survived S., but died of the illness mentioned
in the will. Held, that the deed was not con-
ditional, executed for aspecific purpose which
remained unperformed, and that on its execu-
tion the legal estate vested in J.

That it was not divested because J. re-
mained unmarried.

That the circumstances of the case did not
establish a trust for S.

Semble—That the true construction of the
devise was a gift to J., if he did not, during
8.’s life, die of his then present illness —
Alleyne v. A., 8 I. E. R. 493; 2 Jon. & L, 544.

(C.)

4, An agreement to grant a reversionary
lease at arent much below the value, made
with a cousin, and purporting to be in con-
sideration of love and affection, is for suffi-
cient consideration, and will be specifically
performed.

Observations on Ellis v. Nimmo, Ll. & G.,
temp. Sug. 333.

Conversations, in which the party stated
that his interest was different from that pro-
vided by the agreement, and a letter applying
to the landlord for a different interest— Held,

 

[DEEDS.]

 

Generally. 217

not an abandonment of the agreement.—
Moore v. Crofton, 9 I. E. R. 344; 3 Jon. & L.
438. (C.)

5. The wife of A claimed an annuity on his
estates under a voluntary deed, or had a right
to dower. She concurred in a sale of some of
his estates to a stranger, and joined in a
covenant to levy a fine, and was induced to
do so by other estates of her husband being
settled by articles under which the plaintiff
(her grandson) claimed; the articles recited
other considerations, but there was no proof
of any; no fine was ever levied in pursuance
of the covenant, but the purchaser was never
disturbed. The articles were upheld as for
sufficient consideration, against a subsequent
purchaser for value-—Fitzmaurice y. Sadleir,
91. E.R. 595. (C.)

6. S., seized in fee of K., X., andother
lands, by deed of Feb., reciting that he had
charged his unsettled estates with £2000 for
his daughter, conveyed K. and X. to B. his
eldest son for life, with remainder to his issue
in tail; in consideration of which B. cove-
nanted to pay all S.’s debts and incumbrances.
By deed of the 12th June between S., B., and
W. (another son of §.), reciting that S. in-
tended to convey K. to W., he conveyed X. to
B. and his issue, as in the former deed. Both
deeds recited other provisions made for W.
and other children in lieu of charges on es-
tates settled on B. in remainder. By deed of
the 13th June, between S., B., and W., S. con-
veyed, and B. confirmed, K. to W. for life, re-
mainder to his issue in tail. B. paid off the
debts and charges. On the death of S., W.
went into possession of K., and so continued
until his death. In a suit by the son of B.;
Held, that the deed of Feb. was for valuable
consideration, which extended to the issue of
B. That the deed of the 13th June was a
voluntary deed, no consideration moving from
W.toS. That even if both deeds were volun-
tary, the deed of Feb. should prevail; and
that neither S. nor B., nor both of them, could
revoke it by a subsequent voluntary settle-
ment.

The futility of a defence resting on an un-
proved inconsistent prior conveyance, though
evidenced by admissions in an answer to
another suit, observed on.

Expenditure on the estate claimed, with
plaintiff's knowledge, but chiefly in his minor-
ity, Held, no defence.—Scott v. S.,11 I.E. RB.
487. (C.)—[Afid.: 4 H. L., Cas. 1065. See
s.c, 12 L E.R. 212. (C.)]

7. A deed recited differences between a hus-
band and wife, and an agreement to execute
it, in order to secure « maintenance for her
in case such differences were renewed, and
she should thereafter wish to live separate,
and as an encouragement and recompense
for her care of their children and domestic
affairs while they should live together, and in
order to secure an annuity to her in case of
separation, and as a reward for her services
so long as they should live together, the hus-
band assigned property to trustees to secure

28
218 When good

the annuity for her separate use, to commence
immediately, and be payable during her life.
It contained a covenant by the husband to
allow the wife at her option to live separ-
ate, and by the trustees to indemnify him
while she should do so.—Held, that as the an-
nuity was payable to the wife at all events, the
deed was a good voluntary deed, and was not
void as an encouragement to future separa-
tion, though containing illegal clauses.

A deed providing for prospective separation
is invalid; and a separation deed being put an
end to by a reconciliation, a clause to revive
the provision for the wife on a second separa-
tion is invalid; but a provision for her separate
use, notwithstauding future reconciliations or
separations, is good.— Byrne Carew, 13 I.E. R.
1.) y,

1. A post-nuptial settlement was in fact
made, in consideration of the wife’s separate
estate, which had been given by her to the
husband, who lent a portion, and applied the
residue to his own purposes. The settlement
did not state the money to be the separate es-
tate of the wife. It appeared aliunde to be so.
Held, that the consideration was sufficient,
and the settlement not voluntary.— Butler v.
B., 41. Jur. 183. (C.)

2. Certain premises were by a post-nuptial
and voluntary deed, dated 28th February
1826, charged with a rentcharge of £40 per
annum. A judgment was obtained by a credi-
tor in Easter Term, 1836, for the penal sum
of £900, and duly registered, charging the pre-
mises ; and on the 2lst day of November,
1846, the premises were mortgaged for £700.
A bill having been filed for the foreclosure of
the said mortgage, and the fund proving de-
ficient, the rentcharge was declared to be
void as against the mortgage, but good as
against the judgment; that the mortgagee,
though subsequent in puint of time to the
judgment creditor, should have the first claim
on the fund, to the extent of the value of the
rentcharge, as calculated by a notary; that
the judgment creditor should stand second for
his whole demand ; the mortgagee third in re-
spect of the balance of the demand; and the
residue, if any, to go to the owners of the
rentcharge.— —— v. M‘Cowan, 71. Jur. 389.
(M.0.)

3. A father, before his second marriage in
1832, executed three bonds with warrants of
attorney to confess judgments, to trustees, as
provisions for his three daughters of his first
marriage.

Judgments were not entered on the bonds
until after the second marriage took place,
although it was stated in the settlement exe-
cuted prior to that marriage that judgments
had been entered on them, and that the
object of them was to make a provision for
the children of the first marriage. In 1843 the
father mortgaged the lands in settlement, and
in 1544 granted an annuity out of them. In
1853, on the marriages of two of the daugh-
ters, these judgments were settled for valu-
able consideration. Held, that the judgments
were voluntary; that although they became

 

[VOL. DEEDS.] against Creditors.

judgments for value, on the execution of the
daughters’ marriage settlements, they did not
become valid by relation against the mort-
gagee and annuitant. Judgments prior to
the 3 & 4 Vic., c. 105, were incumbrances, and
as such within the Irish statute against volun-
tary conveyances.—O’ Donovan v. Rogers, 7 I.
Cc. R. 1. (R.)—[Affd. 71. C. R. 496; 3 I.
Jur. N.§. 291. (C.A.)]

4, A marriage settlement contained a limi-
tation of the husband’s estate to the daugh-
ters of the husband, as tenants in common in
fee-simple. Held, that such limitation, so far
as it extended to the daughters of a future
marriage, did not come within Clayton v.
Lord Wilton (3 Mad. 302), because its avoid-
ance, as to such daughters, could not pre-
judice its validity, so far as it affected the
daughters of the marriage; and that as re-
gards the former class, it could not, in the
absence of special reasons, be deemed to have
been stipulated for by the husband, whose
estate was being settled, nor by the wife.

Held, therefore, that, as to those daughters
it was voluntary, it would therefore be void
as against a purchaser for valuable considera-
tion.—Jn re Cullin’s Estate, 14 I. OC. R. 506;
9I. Jur. N.S. 117. (L.E.C.)

 

IIL. 2. When good as against Creditors.

5. A judgment is not, as against the lands
of the conuzor, entitled, under the statutes 10
Car. 1, sess. 2, ¢. 3 (Ir.), and 3 & 4 Vic., ¢. 105,
to priority over a voluntary conveyance of
anterior date, executed by the conuzor when
not in embarrassed circumstances.—Evans v.
&., 21. C. R. 242; 51. Jur. 21. (C.)

6. A deed of 1817 contained a covenant
that the profits of lands should be given to
A., and that if not given to A. he should
be indemnified out of the grantor’s per-
sonalty. There was a covenant for quiet
enjoyment under the grantor, his heirs and
assigns, In 1844 the grantor, by a voluntary
deed, conveyed his personalty to M. and died
three days after. D., not as the heir, but
as tenant in tail, evicted A., who was in
possession. There was no evidence of the
grantor having been indebted in 1844. Held,
that the deed of 1844 was not such a fraud
upon the covenant in the deed of 1817 as
enabled a Court of Equity to set it aside.

Semble—That a covenant against the acts
of heirs and assigns does not regard the
tenant in tail—Lambert v. L., 6 I. Jur. 37.
©.)

7. F. seized of the M. and D. estates, by
a post-nuptial settlement executed in 1807,
conveyed the D. estate to the use of himself
in fee, free from his wife’s dower, and con-
veyed the M. estate to the use of himself for
life, remainder to provide a jointure for his
wife in lieu of dower, remainders over in
strict settlement. The deed contained a co-
venant by F. that his wife would levy a fine
to the uses of the deed. F.’s wife signed this
deed, but died without having ever levied a
When void

fine, and without having ever been called on
to do so. :

Held, that the deed of 1807 could be sup-
ported, as not merely voluntary, against sub-
sequent purchasers for valuable consideration
from F.

Very informal documents held, in favour of
a child, to amount to the exercise of a power
of appointment.—Blake v. French, 5 I. C. R.
246; 1I. Jur. N.S. 60. (C.)

 

IIL. 3. When voluntary Deeds, §c., are void
as against Creditors.

1. The consideration of marriage will not
operate to support limitations to collaterals
in a marriage settlement, which, therefore, as
against subsequent purchasers for value are
voluntary and void.—Stackpoole v. S., 2 Con.
& L. 489; 61. E.R.18. (C.)

2, A., upon borrowing money from B., un-
dertook to assign legally to him, when re-
quested, two judgments against C. as collateral
security. Afterwards A. voluntarily assigned
these judgments on record to a third party, in
trust for the separate use of A.’s wife. It did
not appear that the trustees, or A.’s wife, had
any notice of the previous agreement. eld,
that, notwithstanding the assignment on re-
cord, the voluntary trusts were void as against
B., who was entitled to have the judgments
assigned to him in pursuance of the agree-
ment, his right being an “ equity” within the
meaning of the 25 G.2, c. 14.—Macan v. Richard-
son, 61. Jur. 237. (C.)

3. A father, previous to his second marriage
in 1832, executed three bonds, with warrants
of attorney to confess judgments, to trustees,
as provisions for the three daughters of his
first marriage.

Judgments were not entered on the bonds
until after the second marriage took place,
although it was stated in the settlement exe-
cuted prior to that marriage, that judgments
had been entered on them, and that their
object was to make a provision for the children
of the first marriage. In 1843, the father
mortgaged the settled lands, and in 1844
granted an annuity out of them. In 1853, on
the marriage of two of the daughters, their
judgments were settled for valuable consider-
ation. Held, that the judgments were volun-
tary; that although they became judgments
for value, on the execution of the daughters’

“marriage settlements, they did not become
valid by relation against the mortgagee and
annuitant.

Judgments, prior to the 3 & 4 Vic. c. 105,
were incumbrances, and as such within the
Irish statute against voluntary conveyances.—
O'Donovan v. Rogers, 7 I. C. R. 1. (R.)\—[Affd.
7160. R. 496; 31. Jur. N. 8. 291. (C.A.)]

4, A. conveyed to B. lands mortgaged to C.
Before completion of the sale, B. had notice
of the mortgage, and A. undertook to obtain
a reconveyance to B., but by fraud obtained
it to himself. 3B. had not notice of the fraud.
A. died seized of the estate conveyed to him

[VOL. DEEDS. ]

 

against Creditors. 219

by C. B., as owner, after A.’s death, pro-
ceeded to sellin the L. E. Court the estates
conveyed to him. C. filed an objection, that
the deed of reconveyance was fraudulent and
void; and claimed to be reinstated in_his
original position as an incumbrancer. Held,
that the deed was void even as against B.;
and that C. was entitled to be restored to his
rights under the mortgage deed.— Eyre v. Bur-
mester, 7 1. Jur. N. 8. 329. (H.L.). 10 H. Lds.
Cas. 90.—[Revg. In re Burmester, 11 I. C. R. 1.
(C.A.)}—See In re Burmester’s Est., 141. C. RB.
48. (C.A.)]

5. In 1846, A. mortgaged to B. the lands of
X., and in 1854 assigned them to his son, in
consideration of natural love and affection.
‘They were held under a renewable lease, and
the son covenanted to perform the lessee’s

duties. A. merely covenanted for further as-
surance. In 1856 the assignment was regis-
tered. In i860 A. mortgaged lands which,

with X., had been included in the mortgage of
1846. Proceedings for the sale of A.’s lands
having been instituted, a supplemental peti-
tion for the sale of X. was presented on foot
of the mortgage of 1846. The order was made,
but a direction was given that A.’s lands
should be sold first. The proceeds of their
sale sufficed to pay off the mortgage of 1846
and the prior incumbrances ; but left no suffi-
cient residue for the mortgage of 1860. Held,
that the assignment was not to be deemed to
have exonerated X. from the mortgage of
1846, notwithstanding the covenant for fur-
ther assurance; that the assignment was to
be deemed a voluntary conveyance, and that
therefore no indemnity could prove effectual
against a purchaser for value; that the pro-
ceedings which had been instituted gave juris-
diction, and that, independently of such pro-
ceedings, jurisdiction would have been given
by any well-founded equity of marshalling or
of contribution.—ZJn re Rorke’s Estate, 15 I. C.
R. 316. (L.E.C.)

 

IV. Derosit oF.

 

V. FRavDULENT ConVEYANCES, ASSIGN-
MENTS, &c.

[See also Bankrurtcy.]

6. A. was negotiating through C. for the
sale of certain premises to B., and fixed the
price, which B. lodged with C. In the mean-
time, A. sold and conveyed the premises to D.
Held, that the conveyance was fraudulent and
void, and should be delivered up.—Field v.
Boland, 1 Dr. & Wal. 37. (C.)

7. R., being indebted to A. by specialty and
simple contract, and being sued in Equity for
the amount, executed in 1816 a deed whereby
he purported to convey real estates to his
daughter, W., and her heirs.

In 1817, A. obtained against R. a decree for
payment of the money due, and thereupon
issued a sequestration. The sequestrators
entered into possession of the lands comprised
in ie deed, and so continued until R.’s death
in 1834.
220

In 1826, W. sold and conveyed the lands to
B., who had notice of the circumstances under
which the deed of 1816 had been executed.
After the passing of the 3& 4 W.4,c. 104, R.
died. Held, that the deed of 1816 was void
for actual fraud; that R. died seized of the
lands comprised therein; and that they were
assets for payment of his simple contract
debts.—Bernard v. O’Connor, 2 Jon. 654, (E.
E.)

1. A deed, executed by a married woman,
conveying away, without consideration, an
annuity to which she was entitled, she having
been induced to execute it by misrepresenta-
tion, never having read it, and being misin-
formed as to the contents of it, which were
prejudicial to her—Held, not binding upon
her.— Blake v. Hyland, 2 Dr. & Wal. 397. (C.)

2. J. was seized in fee of estates in T. and
L., and for life of estates in K., with remain-
der to his son W. in tail, who had an equitable
title to have portion of T. settled to the same
uses as K., and claimed a lien under deeds on
the rest of T. and L. J. by deed, reciting
that he was entitled to T. and L. in fee, and
K. for life; remainder to W. in tail, subject
to charges and trusts ; and reciting the embar-
rassment of J., and that advances had been
made, and others were intended to be made, by
D. to pay debts; conveyed T., L., and K., in
trust, to receive the rents, and thereout pay
D. past and future advances to J. and W., or
either of them, or to pay incumbrances; and
on furtuer trust, at the request of D., to raise
by sale or mortgage such sums as might be
necessary to pay D. allsums already advanced
or to be advanced by him in discharge of in-
cumbrances; after payment of the incum-
brances, upon further trust that the residue of
the rents should be subject to such annuity
for J. as D. should appoint; the overplus to
form a fund to make up £30,000 for younger
children’s portions; after the death of J., and
so soon as the incumbrances should be paid
and the £30,000 raised for W., in fee: proviso,
that the lands should be, in the first instance,
charged with an annuity for W. during the
life of J.; proviso, empowering D. to restrict
the raising of the £30,000; proviso, that no-
thing therein should invalidate the securities
then or thereafter to be vested in D., who
should stand in respect of all his advances in
the same priority as the incumbrances paid by
him. Held, that there was sufficient consi-
deration for the deed, and that it was not
void as against a creditor of the father, under
the 10 Car. 1,s. 2, c. 3, Ir.(13 Eliz., c. 6, Eng.),
as containing a power of revocation, or as
intended to delay creditors—Myers v. The
Duke of Leinster, 71. E. R. 146. (C)

3. By a marriage settlement, lands belong-
ing to the husband were conveyed to trustees,
in trust for the husband until he should be
found or declared a bankrupt, or should be-
come an insolvent, or make or enter into any
compromise with his creditors, or should take
the benefit of the Insolvent Act; and after
his decease, or other determination of the

 

[FRAUDULENT CONVEYANCES. ]

trust declared for his benefit, during the joint
lives of the husband and wife, in trust to per-
mit the wife to receive the same for her sole
and separate use and benefit. The husband
took the benefit of the Insolvent Act. Held,
on a petition filed by his assignee, that the
Court had jurisdiction to make a decree de-
claring the limitation to the separate use
of the wife on the husband’s insolvency, frau-
dulent and void, although it might be void at
law, and although the legal estate should be
in the wife, and not in the trustees.— Clarke
v. Chambers, 8 I. C. R. 26. (C.)

4. A., who had been a ward of Court, within
a few months after his discharge being in em-
barrassed circumstances, and sued by a cre-
ditor, confessed a judgment for £500 to B., a
solicitor, his cousin-german and land agent,
by whose advice he was entirely guided in the
management of his affairs, although another
attorney (employed through B.) defended A.
against the creditor, and was also solicitor on
record for A. in some proceedings in Chan-
cery, which were really attended by B. The
judgment was soon after registered as a mort-
gage against A.’s estate. In the course of
subsequent proceedings by the creditor, A.,
under the advice of B., made an affidavit,
stating that the judgment was given for full
and valuable consideration received. In a
suit by B.’s heir-at-law to set aside the judg-
ment, alleging that it was given without
consideration; which suit appeared to have
been really intended merely to delay the cre-
ditor—it was Held, that the relation of soli-
citor and client had existed between A. and
B. at the date of the judgment, and that the
heir might have relief. Subsequently to the
date of the judgment, A. agreed to sell his
estate, subject to its incumbrances, to B., who
was at the time, in fact and on record, A.’s
solicitor, for £100, the value being considera-
bly greater. After the sale was resolved upon,
a solicitor, an intimate friend of B., was, on
his suggestion, employed by A., and went
through the form of changing B. as A.’s soli-
citor, and on A.’s behalf examined the deed
of conveyance, and submitted it to counsel,
but did not in any other way advise or consult
with A. Held, that A. had no sufficient and
independent advice, and that the conveyance
should be set aside, and was in no way the
better for the relationship between the par-
ties.

That A.’s letter to his mother could not be
read to show the state of his mind or feelings
towards B.

The Court will permit counsel, in opening
a case, to state on his responsibility any mat-
ter of proof in the cause which he considers
properly admissible in evidence, subject to
subsequent objection to the proof of such
matter—Low v. Holmes, 8 I. C. R. 53. (C.)5
Dru. Rep. emp. Napier, 290.

5. A., entitled to leasehold and also to fee-
simple estates, devised the latter in trust for
his grandson, B., if he should attain twenty-
three, and to his sons in tail male ; and, if B.
should not attain twenty-three, then to which-
Obtained

ever of his other grandsons should do so first;
with remainders over. A. also bequeathed to
C., one of his grandsons, one-seventh of his
residuary estate, which included his leasehold
estate. B. attained twenty-three, and died,
without issue, on May 18th 1849. By deed,
dated March the 29th 1834, C. conveyed to E.
all that and those the seventh share of C. of
and in the residuary estate of A., and in par-
ticular his share in the seventh part of the
residuary property, “and all the estate and
interest of him, the said C., therein, or in any
other lands which were part of the residuary
estate” of A.—to hold the leaseholds, “and
all other the share which the said C. is at
present entitled to of any lands or tenements,
or any other property part of the residuary
estate of A.” This deed was prepared by the
present owner, who was a solicitor. E. subse-
quently, on the 25th of June 1833, made a
conveyance to the owner in similar terms. C.
died in 1848, having disposed by codicil of his
share of the fee-simple estate to which he was
to become entitled on the death of B., and
having charged that share with £1000 for X.,
the present claimant. X. was then a minor.
Though he took no steps, until the present
proceedings, to enforce his demand, he was
paid annually £120 by the owner up to the
filing of the petition in this matter. Held,
that this payment, though it could not bind
owner’s creditors, rebutted charges of laches
against X.

That the fee-simple lands did not pass in
equity, by the deed of March 29th 1834, to
E., owing to fraud, either in the preparation
of the deed, or in the making of a claim
to the lands.

That mortgagees, without notice of the
fraud, could not avail themselves in this case
of that defence, since there were circum-
stances of a nature to put them on suspicion
patent on the face of the title.

Semble—If the intent of the deed was clear,
and that part of the consideration was paid
for the reversionary interest in the fee-simple
estate, it would have been competent to the
parties to convey their rights (in equity at
least) by any part of the deed.—Jn re Rorke’s
Estate, 13 I. C. R. 365. (L.E.C.)

1. A reversionary lease, voluntarily granted
partly for past services, which had been other-
wise remunerated, and partly for an inade-
quate rent and a small fine, set aside; no

_ confidential relation between the parties hav-
ing been proved.— Wyse v. Lambert, 16L C. R.
378. (R.)

 

V.* Revocation oF Witt By DEED.

2. A testator in 1819 devised chattel property
to his son L., for life, remainder over. By deed
executed in 1820, he assigned the same pro-
perty to J. absolutely. The deed was witnessed
and registered, but remaind in the possession
of testator until his death in 1821. The will
was proved, but no probate duty was paid in
respect of the property comprised in the deed.
J. entered into possession, and so remained
until his death in 1854, having by his marriage

| [DEEDS.]

 

by Fraud, c. 221
settlement, in 1834, dealt with the property in
pursuance of a power derived under the will,
and in 1853 assigned it as his absolute pro-
perty. The deed was found among other
papers belonging to him after his death.
Held, that J. took the absolute interest in the
property under the deed.—That the deed
operated as a revocation of the will as to that
property, whether J. knew of it, and dis-
claimed it or not.—Fitzgerald v. Stirling, 6 I.
C. R. 198; 21. Jur. N.S. 382. (C.A.)

 

VI. DEEDS OBTAINED By FrRaup, DvREss,
unpUE INFLUENCE, OR MISREPRE-
SENTATION ; ESPECIALLY OF RELEASES
SO OBTAINED.

[See also Desror anpD Crepiror, VI.]
1. Obtained by Fraud.
2. Obtained by Duress, undue Influence,
or Misrepresentation.
3. Of Releases so obtained.

 

VI. 1. Obtained by Fraud.

3, In a suit to set aside, after the lapse of
sixteen years, a conveyance on the ground of
fraud, the relief given against the purchaser
was not extended to his minor child claiming
an equity under articles executed before bill
filed— Purcell v. Kelly, Beat. Rep. 492. (C.)

4. A. having promised B., his clerk, to in-
crease his weekly salary, if B. would insure
his life, and assign the policy to A., B. did so,
and, without consideration assigned the policy
to A., who shortly after dismissed B. from his
services, on unfounded pretences. On a bill by
B.’s representatives, the assignment was de-
clared void, and the amount of the policy,
deducting the premiums paid by A., decreed
to be handed over to the plaintiffs, with costs
to be paid by the defendant.—Scott v. Roose,
Long. & T. 54; 31. EB. R.170. (E.E.)

5. A. having granted a loan to P., as a
trustee for the W. C. Min. Co., and having in
his life-time received part payment of the con~
sideration money of the lease, P., his executor,
filed his bill against V., managing director of
the company, for an account of the sum due
on foot of the purchase-money ; and for pay-
ment thereof. V. filed a cross-bill on behalf
of the company, and thereby, after setting
forth various facts and matters as evidencing
fraudulent conduct against the shareholders
on the part of A. and P., and collusion be-
tween them, impeached the lease of the mines
as fraudulent, and the consideration exorbi-
tant. Held—that as it could not be proved
that A. believed the mines to be of less value
than he represented them, there was no frau-
dulent misrepresentation on his part sufficient
to vitiate the lease. Pike v. Vigers, 2 Dr. &
Wal. 2.—[Affd. Vigers v. Pike, 8 Cl. & Fin,
562,—See 5. & Sc. 635. (R.)]

6. A Court of Equity will not assist a party
who has, whilst another was intoxicated, ob-
tained a deed from him.
222 Obtained

On the other hand, equity will not assist a
party to get rid of a deed or agreement merely
because he was intoxicated at the time.

If there was any unfair advantage taken of
a party’s situation, or any contrivance or
management to draw him into drink, he might
be a proper object of relief in equity.

Extreme intoxication, which deprives a
man of his reason, will invalidate a deed ob-
tained from him in that condition Nagle v.
Baylor, 3 Dr. & War. 60. (C.)

1. No form of words is necesssry to consti-
tute the delivery of an instrument as an
escrow. Ifthe real intention of the parties
be that it shall not operate at all, except and
until a specified condition be performed, it is
as an escrow.

The renewal of a lease was executed by the
lessors, on the promise of immediate payment
of the renewal fines. There was not any
attesting witness. Held, that the renewal was
delivered as an escrow.—Wood v. Knox, 3 I.
C. R. 109; 41. Jur. 309. (C.)

 

VI. 2. Obtained by Duress, undue Influence, or
Misrepresentation.

2. Father, tenant for life, remainder in tail
to his son, agreed, whilst his son was still an
infant, to execute a lease of part of the settled
Jands, in consideration of £400 as an annual
rent upon the son’s coming of age. A recovery
was suffered to the uses to be appointed by
father and.son jointly, in default thereof to
the uses of the settlement. The lease was
executed according to the agreement by both
father and son, having been first approved of
by their family solicitor. A fair value was
given therefor. Held, on a bill filed by the
son, after the father’s death, to set aside this
lease, there being no allegation of the con-
sideration money not having been applied to
the use of the son, and no proof of undue in-
fluence by the father, that this lease was un-
impeachable.

The rules of equity, regulating the purchase
of reversionary interests from expectant heirs,
are not applicable to a case where the tenant
for life and remainder-man join, for then the
whole estate is represented.— Cooke v. Burt-
chaell, 2 Dr. & War. 165. (C.)

8. A father, tenant for life, induced his son,
tenant in tail, and entitled to the reversion in
fee, to join him in opening the estate, and re-
settling it to uses which gave the father the
reversion in fee after the son’s death without
issue, and gave him, by a mistake in the con-
veyance, w sole power of appointment after
the death of the son, although he left issue.
The father further induced the son to join in
a mortgage of the whole estate for £1000, pro-
mising to expend that sum in procuring an
appointment for the son, and giving, as a
counter-security, a mortgage of an equity of
redemption of his (the father’s), which was
almost valueless; and it was proved that the
son was not aware of the nature and effect of
the deeds he executed, and that the £1000 was
never applied by the father to the promised

[DEEDS.]

 

by Duress, &c.

purpose. Held, that the son was entitled to
relief in equity against those deeds.

If a father, tenant for life, takes advantage
of his son’s (the tenant in tail) necessities, to
draw him in to join in any conveyance which
would destroy his remainder, this Court, upon
very slender evidence of such a practice in the
father, would release the son.— Wallace v. W.,
2 Dr. & War. 452; 1 Con. & L. 491. (C.)

4. In 1836, J. effected two policies of assu-
rance upon his life, and in that year assigned
them by deed to the ptf., V., a practising phy-
sician, whose patient J. then was. That deed
recited that J. stood indebted to V. in £20 for
professional services rendered by him to J.,
which sum J. was unable to pay; and stated
the consideration to be—“the said sum of
£20, so due, &c.; and also the further sum of
10s.”

In 1837, J. died. His widow,’‘who became
his personal representative, declined to concur
with V. in giving the company the necessary
receipt. This suit was instituted against her
as J.’s widow and administratrix, for an ac-
count, and to compel her to give the company
a proper receipt. She, by her answer, denied
that the consideration money mentioned in
the assignment had ever been paid; and in-
sisted that the transaction was invalid, and
could not be supported, because the relation
subsisting between the parties, and the exer-
cise of undue influence, rendered it contrary
to public policy.

The ptf. offered evidence to prove that £11
was in fact paid at the time of the execution
of the deed; and that the residue of the con-
sideration money had then been owing for
past services as a physician. The Court re-
jected the evidence, and dismissed the bill
with costs.

Exposition of the principles upon which the
Court acts when deeds, executed by parties
who stand in a confidential relation towards
each other, are impeached.—Ahearne v. Hogan,
Dr. Rep. temp. Sug. 310. (C.)

5. A woman, living in adultery with a mar-
ried man, assigned property to secure a debt
which he owed to the trustees of his marriage
settlement. She afterwards filed a petition
stating the connection between him and her;
alleging that he had induced her to execute
the assignment by the exercise of the im-
proper influence which he had acquired over
her; that the trustees knew that her execu-
tion of it was owing solely to that influence;
and praying that the assignment might be set
aside. Held, that her statement, if true,
formed no ground for relief—Hargreave v.
Everard, 6 I. C. R. 278. (C.)

6. K. being indebted to various persons, and
there being an arrear of head-rent due upon
his property, employed P., his confidential so-
licitor, to negotiate a loan for him. P.,
having at the time himself a claim against
K. for costs, procured for K. an advance of
£600 upon the security of a redeemable an-
nuity. In the deed of annuity P.’s sister was
the nominal lender, but the money was really
" Obtained by Duress.

advanced by P. No solicitor was employed
by K. P.’s son acted for both parties; and
the consideration money was not paid at the
time, but at intervals afterwards; and credit
was taken for the sum alleged to be due to P.
for costs. P.’s sister subsequently assigned
part of the annuity. A judgment creditor of
K. remained in possession of his property, by
a receiver, nearly up to the period of the suit,
and no step was in the meantime taken by the
annuitants. The assignee of P.’s sister then
filed a cause petition against K. and P. on
foot of his annuity. Held, upon a cross peti-
tion filed by K., fifteen years after the date of
the transaction, and after the death of P., to
impeach the deed, that the annuity should
stand as a security only for the sum actually
advanced by P., with interest thereon at the
rate of £6 per cent.; that the lapse of time
could not be set up as a bar, the property
having been in the possession of the judgment
creditor, and no steps having been taken by
the annuitants.—O’ Kearney v. Phelan, 2 I. Jur.
N. 8. 86. (C.)

1. A., within a few months after his dis-
charge from the wardship of Court, being in
embarrassed circumstances, and sued by a
creditor, confessed a-judgment for £500 to B.,
a solicitor, his cousin-german and land agent,
whose eadvice entirely guided A. in manag-
ing his affairs. Another attorney (employed
through B) defended A. against the creditor;
and was A.’s solicitor on record in Chancery
proceedings to which B really attended. The
judgment was soon registered as a mortgage.
During subsequent proceedings by the credi-
tor, A., in an affidavit, made under B.’s advice,
stated that the judgment was given for full
and valuable consideration received. B.’s
heir instituted a suit to set aside the judg-
ment, alleging that it had been given without
consideration. It appeared that this suit
was merely intended to delay the creditor.—
Held, that the relation of solicitor and client
had existed between A. and B. when the judg-
ment was confessed ; and that the heir might
have relief.

After confessing the judgment, A. agreed
to sell his estate, subject to incumbrances, to
B. for £100. 3B. was then, in fact, and on re-
cord, A’s solicitor. The value was consider-
ably greater. A solicitor, B.’s intimate friend,
was, at his suggestion, employed by A.; for-
mally changed B. as A.’s solicitor ; and on A.’s
behalf examined the conveyance, and sub-
mitted it to counsel, but did not otherwise
advise, or consult with A.—Z/eld, that A. had
not had sufficient and independent advice ;
that the conveyance should be set aside; and
was in no way better because of the relation-
ship between the parties.

That A.’s letters to his mother could not
be read to show how he felt towards B.—Low
v. Holmes, 8I. C. R. 53; Dr. Rep. temp. Nap.
290. (C.)

2. P. obtained a least of the lands of J. for
his own life, or 31 years, and in 1815 obtained
a renewal for lives, or 31 years. P. devised
these lands charged with a portion of £500 for

[DEEDS.]

 

Cancelling Deeds. 223

each of his granddaughters, to his grandson C.
for life. In 1826, C. demised a portion of the
lands to his father S., for 19 years, at a profit
rent. The interest on the legacies of £500
having fallen into arrear, a deed was exe-
cuted in 1832, by which C. conveyed to
trustees that profit rent, for the residue of the
19 years, to provide for payment of the ar-
rears, and of the two accruing gales of the
legacies due to his sisters, who agreed to ac-
cept this arrangement in lieu and full satis-
faction of their legacies. Subsequently the
renewal of 1815 proved invalid, in conse-
quence of which the residue of the 19 years
expired in 1837, and the fund produced there-
by was inadequate for the payment of the
arrears and accruing gales of the legacies.—
Hed, that the legatees were not barred by the
deed of 1832.—Jn re Colclough, 8 I. C. R. 330.
(C.A.)

 

VI. 3. Releases so obtained.

8. A release of the equity of redemption
was set aside at the mortgagee’s instance, he
having been induced to accept it, and in con-
sideration thereof to covenant to pay a perpe-
tual annuity to the mortgagor, and to give
him a perpetual right of redemption, by mis-
representations of the mortgagor and _ his
solicitor (also the mortgagee’s solicitor),
touching the mortgagor’s title, the value of
the premises, and the nature of the contract
into which he was entering.—Roddy v. Wil-
liams, 3 Jon. & L. 1. (C.)

 

VII. CancELLATION AND DELIVERY UP OF.

4, A. and B. having entered into a verbal
treaty for the purchase of premises belonging
to A., but, being unable to agree upon the
price, A. wrote to C. that he would take a
certain sum from B. for the premises, re-
serving a small portion of them for his sister,
if C. approved. B. lodged that sum with C.,
who made on A.’s letter a mem. of the lodg-
ment, and a remark that it was “a great
price.” During the negotiation A. contracted
to sell D. the same premises, and conveyed
them to D., who had notice of the agreement
between A. and B. Held, that that notice
rendered fraudulent the conveyance, which
must be delivered up to be cancelled; and
that A.’s conduct being very fraudulent, B.’s
costs should, in the first instance, be paid out
of the moneys lodged by him with C.—Field
vy. Boland, 1 Dr. & Wal. 37. (C.)

5. Ptf., V., being devisee of his father, C.,
in April 1829, four days after C.’s death, con-
veyed premises to deft., D., who had been C.’s
land-agent and general manager. On the
same day, V. signed an agreement prepared
by D., constituting D. his agent, at a yearly
salary of £200, and further agreeing to con-
tinue this salary if he removed D. from the
agency without sufficient cause. Besides that
this was a dealing between principal and
agent, residuary legatee and executor, the
deed falsely recited that it was given at C.’s
desire, and in consideration of D.’s: services.
224 Cancellation of.

D. was removed from the agency in 1830,
all accounts being then wound up. In Dec.
1830, V. executed a deed purporting to con-
firm that of 1829, and wrote to D. two letters
(in the end of that month), by one of which he
claimed the benefit of a certain covenant, and
in the other he expressed his entire satisfac-
tion at the transaction. Ona bill filed for an
account, and to set aside those deeds—Held,
that V., if the case rested on the first deed
alone, would have been entitled to relief; but
that his later acts, particularly his letters, con-
firmed the original dealing.

The bill was dismissed without costs.—De
Montmorency v. Devereux, 1 Dr. & Wal. 119.
(C.)—[Affd., with slight variation, 2 Dr. &
Wal. 410; 7 Cl. & F, 188. (H.L.)]

1. Father, C., tenant for life, remainder in
tail to his son, V., agreed, whilst V. was an
infant, to lease part of the settled lands for
£400 yearly rent upon V.’s attaining age. A.
recovery was suffered to the uses to be ap-
pointed by C. and V. jointly; in default, to
the uses of the settlement. The lease, ap-
proved of by the family solicitor, was executed
by C. and V. Fair value was given for it.
After C.’s death, V. filed a bill to set the lease
aside. There not being an allegation that the
consideration money had not been applied to
V's use; nor any proof of undue influence by
C.; Held—that the lease was unimpeachable.

The rules of equity, regulating the purchase
of reversionary interests from expectant heirs,
do not apply when tenant for life and remain-
der-man join ; because then the whole estate
is represented.— Cooke y. Burtchaell, 2 Dr. &
War. 165. (C.)

2. When, by deed of a tenant in tail, a
voidable estate is created, and the person
who is entitled at law to avoid it is a party to
it, and derives benefits under it, equity will
interfere to prevent him from avoiding the
estate.

When the person having power to avoid
a voidable estate, and to hold by a prior legal
title, has derived benefits under the deed
creating the voidable estate, and then enters,
his entry will, in the absence of positive evi-
dence, be deemed an act of confirmation,
rather than avoidance.—Muassy v. Batwell,
5 1. E. R. 382; 4 Dr. & War. 56. (C.)

: VIII. Lost Dezps.

 

 

IX. SupPRESSION AND SPOLIATION OF.

 

X. Parties to Deeps, TuErR Ricuts.

3. Semble—Parties executing a deed, under
which nothing has been done, may abandon
it—Re Fivey, 61. Jur. N.S. 22. (B.)

4, A., seized in fee, conveyed lands to B.
and C., and the survivor of them, and the
heirs of the survivor, to the use of A. for life;
and after his decease to the use of B. and C.,
and the survivor, and the heirs of such sur-
vivor, upon trust to permit D. to receive a
jointure ; and after the death of D., to the use
of the right heirs of A.—Held, that B. and C.
took a legal estate in fee, in remainder.

[DEEDS.]

 

Execution of.

A,, having devised all his property to his
wife, and contracted to sell the lands, died.—
Held, in a suit for specific performance by the
purchaser, that the heir-at-law of A. was not a
necessary party tothe conveyance, ashe had no
legal estate, no equitable estate, and no right
to institute a suit to set aside the contract,
having regard to the will of A., devising all his
property to his wife, who, if the contract was
set aside, would be entitled to the lands; and,
if it was not set aside, would be entitled to the
purchase-money.—[ Roberts v. Marchant, ex-
plained.J—Fowler v. Lightburne, 11 I. C. R.
495; 6 Jur. N.S. 93. (it.)

 

XI. Execution or Deeps.

5. A deed, the possession of which was not
delivered—Held, complete, not merely an
escrow, when complete on its face; a memo-
rial having been duly registered, treating it as
executed at the time ofits date. The non-
delivery was accounted for by delay respecting
a mortgage, which was part of the considera-
gr ee y. Day, Beat. Rep. 468.

6. Semble—The Court has not jurisdiction
under the 1 W. 4, c. 47, s. 11, to order the
Remembrancer to execute the deed of convey-
ance in the name of a minor defendant.,—
Tomb v. Orr, 31. E.R. 64. (E.E.) +

7. A petition under the 1 W. 4, c. 47, s. 11,
should state the age of the minor.

Semble—That the 1 W. 4, c. 47, applies to
suits instituted before the passing of that Act.

An infant defendant entitled to a portion of
the equity of redemption of lands decreed to
be sold in a foreclosure suit, was ordered to
execute the conveyance to the purchaser.—
Jones v. Ham, 3 I.E. BR. 65. (E.E.)

8. The infant tenant in tail of lands decreed
to be sold for an equitable charge, is a trustee
under the 8th and 18th sections of the 1 W. 4,
c. 60.—Peyton v. M‘Dermott, 6 I. E. R. 220, (R.)

9. Where lands are decreed to be sold in a
mortgage suit, the infant heir-at-law of the
mortgagor is not a trustee within the 8th or
18th sections of the 11 G.4, and 1 W.4, ¢.

Semble—The Court has jurisdiction under 11
G. 4, and 1 W. 4, c. 47, s. 11, to make an order
directing such infant heir to execute the con-
veyance.

He is not within the provisions of the 28 G.
3, c. 35. Nor is he a necessary party to the
conveyance to the purchaser.— Goddard v. Ma-
caulay, 61. UW. R. 221. CR.)

10. The Court will make an order under the
1 W. 4, c. 47, s. 11, that the infant shall
execute the deed of conveyance to the pur-
chaser.— Clinton v. Bernard, 61. E. R. 355. (C.)

11. It is necessary, in order to constitute an
escrow, that the deed should be expressly
delivered as such. If, at the time of the deli-
very of the deed, there is an agreement that
the deed is to have operation only on certain
Registry.

conditions, that is sufficient to constitute a
delivery as an escrow.

Where a contract is executed, a defendant
cannot impeach it without a cross-bill.— Nash
v. Flynn, 6 1. E. BR. 565; 1 Jon. & L. 162. (C.)

1. No form of words is necessary to consti-
tute the delivery of an instrument as an escrow.
If the real intention of the parties be that it
shall not operate at all, except and until a
specified condition be performed, it is an
escrow.

The renewal of a lease was executed
by the lessors on the promise of immediate
payment of the renewal fines. There was no
attesting witness. Held, that the renewal was
delivered as an escrow.— Woodv. Knoz, 3 I. C.
R. 109; 41. Jur. 309. (C.)

 

XI. Recistry, ENrotment, &c., AND
PRIORITY.
[See also JupamEnt, REGISTRATION OF.]
1. In general.
2. Priority: how acquired.
3. Priority: how lost.

 

XU. 1. Registry, Enrolment, §c., and Priority,
in general.

2. In 1820, A. conveyed his life estate to his
son, B., who covenanted to indemnify A.
against, amongst other debts, a bond of W.,
who, in 1822, obtained judgment against A.
In 1824, B. conveyed the estate, in trust, to
sell, and to pay, first, the mortgage debts men-
tioned in the first schedule of the deed; then
the judgments in the second schedule, entered
up against B.; and then bond debtsin a third
schedule ; the debts to be paid in such priority
as the trustee should deem proper. The
second schedule purported to set out the judg-
ments affecting the lands appearing on record
against A. and B.; and enumerated W.’s
judgment. The trustee did not determine the
priorities. Held, that W.’s judgment was not
to be postponed to judgments against B.; and
that the words, “entered up against B.,”
might be rejected in construing the deed.—
Taylor v. Gorman, 6 I. E. R. 634. (C.)

38. The conveyance under the former English
Insolvent Acts to the provisional assignee is
within the General Registry Act; nor is the
registration of it dispensed with by the regis-
tration of the conveyance by the provisional
to the creditor’s assignee.—Battersby v. Roch-
Sort, 8 I. E. R. 284. (C.)—[Reversed, 9 I. E. R.
191; 2 Jon. & L. 481. (C.) Rochfort’s appeal
dismissed for incompetency, 2 H. Lds. Cas.
388.]

4. Renewable leaseholds were settled by a
registered deed on B. for life, with remain-
ders over. B., being in possession, apparently
as absolute owner, new leases were obtained
under circumstances which as against him
would have made them grafts on the old in-
terests. At the same time he sold the lands
to a purchaser for value without notice. Held,
that the equitable claim of a remainderman

[DEEDS.]

 

Priority. 228,

under the settlement was under the Registry:
Act preserved against the purchaser.—Hill v..
Mill, 12 I. E. R. 107. (C.)—[Varied, 3 H..
Lds. Cas. 828.]

5. Under a covenant for further assurance,
this Court will compel a tenant in tail who
has executed a disentailing deed, which has
not been enrolled pursuant to the 3& 4 W. 4,
ce. 74, s. 41, to execute a similar deed for the
purpose of being enrolled.

The proviso as to enrolment contained in
that section does not affect original parties.—
The Gt. S. & W. Ry. Co. v. Purcell, 5 I. Sur.
253. (C.)

6. Registration under the 7 & 8 Vic., c. 90,
does not confer any priority on judgments
inter se during the life of the conuzor.

A. recovered against B. a judgment in 1838.
In that year B. died, having béqueathed (sub-
ject to charges) a chattel real beneficially to
his executrix and his son. She assented to
the bequest. In 1843 C. recovered a judg-
ment against the executrix and the son of B.
In 1846 D. recovered against them a judgment,
which was immediately afterwards registered.
A fi. fa. on that judgment was lodged with
the sheriff on the 18th Jan. 1849. On the
25th Jan. the judgment of 1843 was regis-
tered. On the 30th Jan. the sheriff sold to
A. the chattel real under the fi. fa. A.’s
judgment of 1838 was, on the 6th Feb. 1849,
revived against the executrix in her repre-
sentative character. On that judgment a ji.
fa. then was issued, and a return of n. 6.
made. ‘On the 28th Feb. 1849, the chattel
real was by indenture conveyed to A. by the
sheriff, and the executrix and son of B. A.
afterwards obtained assignments to himself of
the charges on the chattel real. On a bill
subsequently filed by C. against A., and the
executrix and son of B., to have the amount
of the judgment of 1848 raised out of the
chattel real:—Held, that the judgment of
1846 was not, in virtue of its earlier registra-
tion, entitled to priority over that of 1843.

That A. was not, in respect of the judg-
ment of 1838, entitled to the benefit of the
proviso in the 3 & 4 Vic., c. 105, s. 22, in
favour of purchasers, mortgagees, and cre-
ditors who became such before the passing of
that Act in 1840; and that A. was not en-
titled to use that judgment, or the charges
assigned to him, to protect his title to the
chattel real as against C.

That the title to the chattel real acquired by
A. under the sale by the sheriff was not pro-
tected, as against C.’s judgment of 1843, by the
proviso in 3 & 4Vic., v. 105, s. 22, “ that nothing
in that Act contained shall take away or pre-
judice any remedy or proceeding which any
judgment creditor may, or, if that Act were
not passed, might have or take in relation
to his judgment ; but such creditor shall be at
liberty to proceed at law or in equity for re-
covery of any sum secured by, or due upon
any such judgment, whether before or after
such period as aforesaid, as if that Act had
not been passed.”

A decree was pronounced in favour of C,

29
226 Registration, &c.

as prayed by his bill—Hyde v. Atkinson, 2
IC. R. 246; 51. Jur. 33. (C.)

1. Blanks were left for the names of the
baronies in which lands, the subject of a mar-
riage settlement, were situate. After the
execution of the deed, the names of the ba-
ronies were inserted, and the deed was re-
acknowledged before other witnesses. An
affidavit was made by one of the witnesses to
the execution of the deed, verifying the exe-
cution of a memorial and of the deed itself,
though the deed as altered was not re-ac-
knowledged before that witness. Subse-
quently the grantor signed a document in
the presence of the witness, declaring that
the names of the baronies had been inserted
in his presence, and by his direction, in pur-
suance of the original intention of the par-
ties, and for the purpose of registration only.
The memorial was registered, on production
of the affidavit and the original deed, under
the 3 G.4, c. 116. Held, following Gardiner
v. Blesinton, 11. C. R. 79 (from which the Court
dissented), that the insertion of the names of
the baronies was an alteration in an imma-
terial point; and that neither the deed nor
the registration was thereby invalidated.

Lands were devised to A. for life, subject to
a term to secure portions for his younger bro-
thers and sisters. The testator, by a deed of
1836, charged a portion for one sister on the
lands, and, by a codicil referring to the deed,
revoked the bequest in her favour. <A party
claiming from A., under a deed of 1841, regis-
tered before the deed of 1836, availed himself
in the Master’s office of the codicil, to diminish
the portions bequeathed by the will. Held,
that he could not rely on the codicil as adeem-
ing the legacy, and at the same time avail him-
self of the prior registration of his deed, by dis-
claiming knowledge of the contents of the deed
of 1836.—Delacour y. Freeman, 2 I. C. R. 638.
(R.)

2. Whether judgments entered within twenty
years before the passing of the Redocketing
Act, 9 G. 4, v. 35, and not redocketed within
twenty years from their entry, or within five
years from the passing of the Act, are void as
against a purchaser (a mortgagee of 1825),
who became such before the passing of the
Act? Quere.

Held, that such judgments were void as
against a sub-mortgage (made in 1841) of the
mortgage of 1825.— Walcott v. Condon, 3 I. C.
R.1; 51. Jur. 49. (C.)

3. The 17 & 18 Vic., c. 55, does not repeal the
order and disposition clause of the 6 W. 4, c.
14, s. 86.

Where neither the bill of sale itself, nor the
affidavit, contained the description of the cre-
ditor, who was therein designated as “esquire”
simply, and did not give the residence and oc-
cupation of the second subscribing witness—
Held, that the registration of same was in-
valid.

Fraudulent preference principle. Inre Ryan
GI. C. R. 33) affirmed.—In re O'Connor, 1 I.
Jur. N. 8.198. (B.)

[DEEDS.j

 

Generally.

4. R., by marriage settlement executed in
1758, settled the lands of K., in the barony of
C. and county of L., to the use of himself for
life, remainder to his first and other sons
in tail. In 1786, R., and O., his eldest son,
entered into articles of agreement, which re-
cited that by the deed of 1758, K., in the
barony of C. and county of L., had been set-
tled in strict settlement, and by which R. and
O. agreed to suffer a recovery of K. (without
further describing them), which should enure
to the use of R. for life, remainder to the use
of O. for life, remainders over to the other
sons of R. and their children, in strict settle-
ment. No words of limitation were contained
in the articles. The articles further provided
an annuity of £50 a-year out of K. for O.,
during the life of R. These articles were not
registered until 1791, and the memorial alto-
gether omitted to state the barony in which
the lands of K. were situate. A recovery of
the lands of K. was duly suffered in the year
1786, and by the deed creating the tenant to
the precipe, which was enrolled, but not
registered, it was declared that the recovery
should enure to the uses of a deed to be ex-
ecuted in pursuance of the articles. No deed
declaring the uses of the recovery was execu-
ted. The petitioner was son of one of the
sons of R., and all the limitations previous
to the estate limited to him were exhausted.
In the year 1788, O., by a deed reciting that
he was entitled to the lands of K. in fee, sub-
ject to the life estate of R. therein, and that
he was entitled to an annuity issuing out of
the lands of K., conveyed to M. the lands of
K. subject to a perpetual rent of £15 a-year,
and conveyed to a trustee for M. the annuity
during K.’s life. A document purporting to
be a memorial of this deed was registered in
1788, but it described neither the lands con-
veyed, nor the nature of the conveyance. R.
died in 1789. In1808, O. conveyed the rent of
£15 a-year to a trustee for M. In 181], the
lands of K. were, with other lands, settled by
M. for value; and the respondents claimed
under that settlement. On a petition, filed
for the purpose of having the articles of 1786
carried into execution, it was Held—that
neither the deed of 1786 nor the deed of 1783,
was effectually registered; thatthe mention in
the deed of the 1788, of the annuity created by
the articles of 1786, was not, as against persons
claiming under the settlement of 1811, notice
of the articles; and that the petitioner was
not entitled to recover.

If the barony in which the lands affected by
a deed are situate be mentioned, even in a
recital in that deed, the memorial for regis-
tration must also mention the barony.

A purchaser is not fixed with notice of a
deed by evidence that he had notice of an
annuity created by that deed, which from the
notice given of its existence, appeared to
have expired many years before the purchase.
—Stephenson v. Royce, 5 1. C. R. 401; 2 1.
Jur. N.S. 68. (C.)

5. The memorial of a deed lodged in the Re-
gistry-office omitted to state the day of the
Registration, &c.

month when the deed was dated. Held, that
the registration was thereby vitiated.

Semble (per Monahan, C.J.) a memorial of
a deed may be registered though the deed
has no date when produced for registration, if
the memorial states it as a deed without a
date.

The presumption that « public officer has
done his duty can prevail only in the absence
of evidence to the contrary. Therefore, as
there was evidence outside the deed itself,
that the day of the month had been inserted
in it when it was executed—Held, that it
could not be presumed that the deed corres-
ponded with the statement of it in the memo-
rial, and had no date, when they were produced
to the Registrar. :

Quere—Whether an informality in the affi-
davit of the execution of the deed and me-
morial, if the Registrar receives it, will vitiate
the registration ?—Jn re Monsell, 5 I. C. R.
529. (P.C.)

1. In 1840, C., having a charge by a judg-
ment for £1500 upon the lands of X. applied
to B. for £1500, in order to enable him to pur-
chase X. in Chancery. B. consented, on the
terms of a conveyance being made to R. as
trustee for B. as well as for C. Accordingly,
R. purchased for £3000, of which £1500 was
paid by B. in cash. R.’s promissory note was
given for the remainder. By deed of 1840,
X. was conveyed to R., without any declara~-
tion of trust on the face of the deed.

C., having got R.’s promissory note accepted
as cash, subsequently, by sundry payments,
reduced his debt to B. to £900.

By deed of 1844, reciting the deed of 1840,
and that C. purchased the lands from B.,
save so far as they should stand as a security
to B. for £900, it was declared that the lands
were vested in R. in trust, in the first instance,
by sale or mortgage to pay B. £900, with
interest and costs, and then in trust for C.,
his heirs and assigns forever. This deed was
not registered until Dec. 1852.

In 1852, L. obtained a judgment against C.,
for £60, and registered it as a mortgage
against the lands, in Nov. 1852.

In 1843, a judgment obtained against C., in
1836, was assigned to. W., and by him duly re-
docketed in 1844, and afterwards registered
in 1850.

In 1854, the lands were sold in the I. E.
Court, on the petition of L.; and, on the settle-
ment of the final schedule of incumbrances,
the Commissioners placed B.’s claim of £900
after the claims of L. and W., on foot of their
respective judgments.

Held, that the original transaction should be
regarded as C.’s own purchase, B. lending him
£1500; that R. was trustee for C., and for no
other person, and that the judgments obtained
against C. became, in the order of their pri-
ority, available against the trust estate; that
B.’s claim to priority, founded on the recitals
in the deed of 1844, could not be sustained ;
that B. was entitled to such priority only as
was given him by the deed of 1844, and its
subsequent registration in Dec. 1852; and
that his claims should be postponed to the

[DEEDS. ]}

 

Generally. 227

claims of L. and W.—In re Cooke, 6 I. C. R.
430. (C.A.)

2. In 1851 B. obtained a judgment against
A. In 1855 a decree on consent was made in
an administration suit, declaring A. a trustee
for himself and his brothers and sisters, as to
lands in which he had the legal estate. In
1856, the judgment creditor registered his
judgment as a mortgage, under the 13 & 14
Vic., c. 29, against the lands. Held, that the
registration affected that portion of the lands
only to which A. was beneficially entitled.

The registration of a judgment as a mort-
gage operates in equity to pass the debtor’s
beneficial interest only. If he has a legal
estate it is transferred to the creditor, sub-
ject to the equities to which it was previously
liable.

Quere—Whether the affidavit made by a
creditor for the purpose of registering a judg-
ment should state the title, trade, or profes-
sion of the parties at the date of the affidavit?

An administrator, cum test. an., being in pos-
session of premises which the testator held as
tenant from year to year under C., took a
lease from D., the head landlord, to commence
from the expiration of C.’s lease. Held, that
the lease was a graft on the testator’s interest,
and formed part of his assets. [See 21& 22
Vic., c. 105, amending the 13 & 14 Vic., c. 29.J—
M‘Auley vy. Clarendon, 8 I. C. R. 121. (R.)

3. By marriage settlement it was covenanted
that a term should be vested in trustees to se-
cure portions for the younger children of the
marriage, as the father should appoint by
deed or will. On the marriage of one of his
younger sons, he wrote a letter promising to
appoint a portion of the fund in his favour.
On the marriage of another of his younger
sons, the father made a regular appointment
by deed in his favour. Held, that the former,
though but a contract to appoint, being prior
in date, should be preferred to the subsequent
regular appointment.—ZJn re Jennings, 8 I. C.
R. 421. (P.C.)

4. Notice to one of the directors of a bank
of a prior unregistered deed is not notice to the
board of directors, so as to bind the sharehold-
ers, when such director has not communicated
his knowledge, and the existence of the prior
unregistered deed has been fraudulently con-
cealed, he being a party to the fraud.

Notice to the trustee of a duly registered
deed will not affect the priority of that deed,
where such notice consists of the trustee’s
knowledge of a prior unregistered instrument
executed by himself, which knowledge he
fraudulently abstained from communicating.

Noticé to a person who is employed only for
some specific purpose, and is under no obliga-
tion to communicate the knowledge which he
possesses, does not bind a purchaser who em-
ploys an agent who really transacts the busi-
ness.

On the 15th March 1855, 8., being largely
indebted to the T. Bank, and requiring fur-
ther advances, agreed, in writing, in conside-
ration of an advance to him by the T. Bank
228 Registration, Se.

of £10,500, to assign the lands of C. to J. and
R., upon trust to sell, and out of the proceeds
to pay all past, present, and future advances
made to him by the T. Bank. This agree-
ment S. subsequently signed, his signature
being witnessed by N., the secretary of the L.
and C. Bank. It was not registered. At this
time S. was chairman of the board of direc-
tors of the L. and C. Bank. J. was sole ma-
naging director of the T. Bank, and R. was
a director of the L. and C. Bank.

In July 1855, J. made a proposal to the
board of directors of the L. and C. Bank for
a loan to S., and stated that S.’s debt to the
T. Bank did not exceed £40,000, and that the
T. Bank did not hold any security from him.
The directors of the L. and C. Bank ad-
vanced to 8. £95,000; and, by deeds of the 1st
August and 7th September 1855, S. conveyed
the lands of C. to B., L., and J., upon trust
to sell, and pay all incumbrances. These
deeds were registered in August and Sep-
tember 1855.

In 1857 the lands were sold in the I. E.
Court, and the Judge held that the registered
deeds of the 1st August and 7th September
were entitled to priority over the unregistered
agreement. The official manager of the T.
Bank appealed on the ground (among others)
that the directors of the L. and C. Bank had,
at the time of the execution of the deeds of
the 1st August and 7th September, notice of
the equitable agreement.

The evidence disproved actual notice to
the directors. It appeared that the agree-
ment had been allowed to remain unregis-
tered by the express direction of J.; that he
had fraudulently concealed the knowledge of
the agreement for the purpose of saving the
credit of §., whose solvency was essential to
the welfare of the T. Bank ; and that it was
the intention of all parties, from the com-
mencement, to keep secret the agreement.
Held, that under these circumstances actual
knowledge possessed by S., the chairman, R.,
the director, and the trustee of the deed of
the 1st August, was not such notice as bound
the directors of the L. and C. Bank.

A., the solicitor of the L. and C. Bank,
when about to register the deeds of the lst
August and 7th September, applied to K., the
solicitor of the T. Bank for information and
assistance. K. did not disclose the agree-
ment, which he thought was abandoned, and
which he knew was to be kept secret; but he
did give A. information as to other securities ;
in consequence of which the L. and C. Bank
stopped part of the loan. K. also assisted A.
in registering the deeds. Held, that these
transactions did not make K. the solicitor and
agent of the L. and C. Bank, so as to fix them
with the notice which he possessed of the
agreement of the 15th March.—Jn re Bur-
mester, 91. C. R. 41; Dr. Rep. temp. Napier,
559. (C.A.)

1. In the attorney’s affidavit and the redock-
eting book, the attorney, redocketing a judg-
ment under the 9 G. 4, c. 87, was described as
“J.N., of the city of W.,” instead of his re-
gistered residence in Dublin. There was no

[DEEDS.]

 

Generally.

other attorney of the same name then prac-
tising. Held, that the redocketing was not
vitiated thereby, nor by the fact that J. N.
had not taken out his license when the judg-
ment was redocketed.— Woodroffe v. Greene, 12
I. C. R. 473. (R.)

2. A. having made a lease in 1852 of part
of the lands of Blackacre, by a deed purporting
to be for value, in 1853, conveyed the inherit-
ance in remainder expectant on his own de-
cease to his son, F. This deed was registered
two days after. The lease was not registered
until 1854. F. had notice of the lease at the
time of the execution of the deed of 1853.
By deed of 1857 F. mortgaged his reversion to
L., who had not notice of the lease. Held,
that whether the deed of 1853 was a volun-
tary deed, or a deed for value, L.’s mortgage
was entitled to priority over the lease of 1852,
and that his title was not affected by the in-
termediate registration of the lease. But
that, as it appeared on the evidence before
the Court that the lease was bona fide for a
proper period, and at a fair rent, and as the
sale would not be materially affected by it,
the sale should be made subject to it, and
that it should not be set aside for a slight dif-
ference between the rent and the value.

If the Court is constrained to set aside a
bona fide lease, it will reserve to the lessee the
right to apply for compensation as against
any interest remaining in the lessor.—In re
Flood’s Estate, 131. C. R. 312. (L.E.C.)

3. The entry by the officer, of the parties’
names, &c., on the roll of a judgment, under
the 9 G. 4, ¢. 35, s. 8, is not the title of a judg-
ment.

In the said entry, and in the judgment, the
statements of the residence of the ptf. were
different. An affirmation, made for the pur-
pose of registering the judgment under the 13
& 14 Vic., c. 29. followed the statement in the
judgment. Held, that the title of the judg-
ment was correctly stated.

An affirmation, taken under the 3&4 W.4,
c. 82, stated that “affirmant was a member of
a religious sect called ‘Separatists.’” It did
not follow in terms the form of affirmation
required by the Act; but it purported to be
supplemental to another affirmation which
did, and to have been made before an officer
authorised to administer it. Held, that it
must be assumed to have been properly made.
— Wolsely vy. Worthington, 13 1. C. R. 341. (R.)—
(Affd,, 14 I. C. R. 369. (C.A.)

4. A., tenant in tail in possession, executed
a disentailing deed, not for value, which was
enrolled after his death, but within six months
from its execution. B., entitled in remainder
expectant on the determination of A.’s estate
tail, executed, after the execution of A.’s
deed, a disentailing deed for value. This
deed was enrolled before A.’s. B. and B.’s
grantees had express notice of A.’s deed.
Held, that the enrolment of A.’s deed was
good, although made after his death; but
that whether B. was entitled in fee or in tail,
B.’s deed being made to a purchaser for value,
Priority,

and being first enrolled under 3 & 4 W. 4,
v. 74, 8. 74, avoided A.’s deed, and that notice
was immaterial.

That the 38th and 74th sections of the 3 &
4 W. 4, ¢. 74, are not in pari materia; that
the 38th section applies to dispositions by the
same tenant in tail, while the 74th applies to
dispositions by successive tenants in tail—Ju
re Piers’s Estate, 13 I. C. R. 459; 8 I. Jur.
N.S. 76. (L.E.C.)—[Affd., 14 I. C. RR. 452;
8 I. Jur. N.8. 401. (C.A.)]

1. In an affidavit filed under the provisions
of the 13 & 14 Vic., c. 29, s. 6, for the purpose
of converting a judgment into a mortgage,
the lands intended to be comprised in the
mortgage were described as “the lands of A.,
B., and C., situate in the baronies of D. and
E. and county of L.”—Aeld, that the affidavit
was insufficient, the baronies not having been
“distinctly” stated, within the meaning of
the statute —Jn re Morrow’s Estate, 141. C. R.
44, (C.A.)

 

XI. 2. Priority: how acquired.

2. Registry of articles of agreement to con-
vey lands will give them priority over sub-
sequent (actual) conveyances.—Thompson v.
Stimpson, 1 Dr. & War. 459. (C.)

3. The Count and Countess D’O., being en-
titled in her right to an estate subject to
incumbrances, a receiver was appointed over
them, and was directed to pay her £400
a-year out of the estates for her separate
use. By a subsequent deed, the estates were
settled to her separate use, subject to charges
in favour of Count D’O. and others. Until
this arrangement was completed, the allow-
ance was to be paid to Lady D’O., who after-
wards mortgaged the estates for £2100 to the
plaintiff, excepting the £400 a-year, which
was, by a separate clause in the deed, as-
signed to a trustee to secure payment of the
interest. The deed was registered as a mort-
gage of the estates generally. The memorial
did not particularise the £400 a-year. The
receiver refused to recognise the title of the
trustee, but paid the £400 on Lady D’0O.’s
order to him. She afterwards borrowed £5000
from the defendant, who, before the loan,
was informed by the receiver that he had
heard there had been an assignment of the
£400 a-year, but that he did not recognise
it. A mortgage was executed of the estates
to the defendant; and the £400 a-year was
assigned by a separate deed to a trustee (who
had been agent and solicitor to Lady D’0O.)
to secure the interest of the £5000; and an
order was obtained to pay it to him. This
order was rescinded; and a bill was filed to
settle the priority of the claims of the plaintiff
and defendant. Held, that the £400 a-year,
being a portion of the estate, was within the
Registry Act, and that the description in the
memorial was sufficient to include it.

Semble—That the information given by the
receiver to the defendant, coupled with the
memorial, was sufficient notice of the plain-
tiff’s mortgage.

[DEEDS.]

 

How acquired. 229

The doctrine of Dearle v. Hail, 3 Russ. 1, is
confined to choses in action, and was not there-
fore applicabie to this case.—Iochard v. Ful-
ton, 71. BE. R. 131; 1 Jon. & L. 413, (C)—
[See Dunster v. Glengall, 31. C. R. 47; 51. Jur.
337. (R.]

4, Ex parte proceedings, under the Sheriffs
Act for the appointment of a receiver are not
lis pendens which would affect a purchaser
with notice of the judgment.

The doctrine of tacking applies in this
country as well as in England to cases un-
affected by the Registry Act.—Tennison v.
Sweeny, 71. E. R. 511; 1 Jon. & L. 718. (C.)

5. Plaintiff, claiming lands under a deed
registered in 1805, filed his bill against the
defendant in possession under a deed execu-
ted and registered subsequently, praying an
issue at law or an ejectment, and removal of
temporary bars; and, in the event of succeed-
iug, an account of rents and profits. De-
fendant pleaded a purchase for value without
notice in 1830 (as in Walwyn v. Lee), and de-
murred to the account. He/d(disallowing the
plea), that the prior registration gave priority
both in law and equity, even as against a
purchaser for value without notice.

Semble—A person cannot protect himself
by this plea where, by due diligence, he could
have discovered the real state of the title;
and that neglecting to search the registry
is a failure of due diligence.

That when, at the time of 4 purchase, te-
nants are in possession, the purchaser en-
tering into possession and receipt of the
rents has constructive notice of the title
by which the tenants hold.

That, as the plaintiff could not have full
relief, except in equity, he was entitled to the
account, as consequential to the relief, after
he should have established his title at law.—
Hamilton v. Lyster, 71. E.R. 560. (R.)

6. The defence of a purchase for value with-
out notice is not available against a covenant
to renew, or other equitable claim under a
prior registered instrument.

A. conveyed lands, on trust to pay his
debts. The deed was registered. Before it
was acted on, A. made a lease with covenant
for renewal, which was also registered. The
lands were sold in an administration suit by
a judgment creditor of a deceased owner.
The purchase-money was paid into Court,
and the balance paid to the trustee, who
joined in the conveyance. A. had not been
served with subpcena, or appeared till after
the date of the lease. In a suit, instituted
after a great lapse of time, for renewal, by
the representative of the lessee against the
representative of the purchaser, insisting that
the trust deed was voluntary and revocable,
and that the sale in the suit did not affect
the lease,—Held, that the purchaser having
got a prior legal estate under the trustee, and
the equitable estate from payment of the
prior incumbrances, was not bound to renew,
especially after such a time passed without
recognition of the plaintiff’s rights — Drew vy.

\
230 Priority,
Lord Norbury, 9 I. E. R. 171; 3 Jon. & L.
267. (C.)—[Affd. 9 LE. R. 524. (C.)]

1. A., being entitled to the benefit of arti-
cles of agreement, entered into by the owners
of lands situated in Ireland, to execute to
him a mortgage thereof for £42,000, by a deed
executed in 1840, reciting the articles, as-
signed that sum and all the securities for its
payment, upon trusts. By deed executed in
England in 1842, also reciting the articles, A.,
for value, assigned the £42,000, with all the
securities for its payment, to M., by mortgage.
The deed of 1842 was registered before that
of 1840. The memorial of the deed of 1842
described the lands on which the £42,000 was
charged, in the same manner as they were
described in that deed itself; but neither deed
nor memorial mentioned the names of the
baronies or parishes in which the lands were
situated.

Semble—That the deed of 1842 would have
been properly the subject of registry if the
memorial had stated the names of the baro-
nies and parishes.

Held, that in consequence of the omission
from the memorial of the names of the baro-
nies and parishes, the deed of 1842 was not
formally registered, and therefore had not
gained priority over the deed of 1840.—That
the deed of 1842 was properly the subject of
registry.

Held also, reversing the decision below, that,
notwithstanding the omission from the memo-
rial of the names of the baronies and parishes,
the deed of 1842 was properly registered, and
therefore had gained priority over the deed of
1840.—Gardiner v. Blesinton, 1 I. C. R. 64;
81. Jur. 116. (R.)—[S.c., on appeal, 1 I. C.
R. 79; 31. Jur. 125. (C.)]

2. K., by an unregistered deed, granted a
rentcharge to his daughter. By her marriage
settlement, executed on the following day, to
which K. was a party, and which recited the
grant, the rentcharge was conveyed by the
daughter to trustees. The latter deed was
registered., K. afterwards mortgaged the
land, out of which the rentcharge issued,
by a deed which was also registered. Held,
that the rentcharge, though granted by an
unregistered deed, had priority over the mort-
gage, by reason of the registration of the
settlement.—Aunter v. Kennedy, 1 I. C. R. 148.
(R.)—[Affd. on appeal, 1 I. C. R. 225; 31
Jur. 128. (C.)]

3. In 1820, R. and other Jands were mort-
gaged for £1200 toY. The equity of redemp-
tion in R. having subsequently devolved upon
A., he mortgaged it in 1825 to the plaintiff,
W. In 1830, A. contracted with B. that, on
B.’s paying Y. £565 then remaining due on
his mortgage, an annuity of £66 per annun,
should be “effectually granted to B. out of
the mortgaged premises.” B. paid £565 to Y.
By deed of the 7th Nov. 1830, to which the
only parties were Y. and C., the brother of A.,
reciting that £1454 was due on the mortgage
of 1820; Y., in consideration of £1281, ex-
pressed to be paid to him by C., “and others,
for his use,” conveyed R. and the other mort-

[DEEDS.]

 

How acquired.

gaged lands, and the mortgage debt, to C.,
his executors, &c. By a deed, dated the fol-
lowing day, reciting the mortgage of 1820;
that C. had become entitled to it; that A.
had become entitled to “several parts of the
mortgaged premises,” and that A. and C. had
agreed to grant an annuity out of those
premises; they, in consideration of £565
expressed to be paid to them, granted the
annuity of £66 to B. out of the mortgaged
premises, including R. A. covenanted to pay
the annuity, and, as a further security for the
annuity, A. and C. demised the premises for
200 years to a trustee for B. Held, that as
against the lands of R., the annuity was, to
the extent of the sum due on the mortgage
of 1820, prior to the plaintiff's mortgage of
1825.

The cases of Toulmin v. Steere (3 Mer. 210),
and Parry v. Wright (1 Sim. & Stu. 369; 5
Russ. 142, considered).— Walcott v. Condon
31.C.R.1; 51. Jur. 49. (C.)

4. M. was tenant for life of K. and other
lands, remainder to his first and other sons
in tail, W. was supposed to be the eldest son
of M. In 1832, M. and W. suffered a recovery
of all the lands, which conveyed them to the
use of M. for life ; remainder to provide £100
a-year for S., the wife of M.; remainder to W.
in tail. This deed was duly registered.

By marriage articles of 1833, W. agreed to
charge all the lands with a jointure of £200
a-year for his intended wife J. This deed
was never registered. After the death of M.,
T., one of his sons, claimed the lands. W.
and T. entered into a compromise by a deed
of 1835. By it, £100 per annum was charged
on K. for S., and she released the former an-
nuity ; subject thereto K. was limited to W. in
fee. This deed was dulyregistered. W.,a solici-
tor, prepared the deed. No other solicitor was
employed about the preparation of the deed,
save one, who by affidavit stated that he acted
only for T. Held, that W. must be taken to
have acted as solicitor for 8., and that she
was in consequence affected with constructive
notice of the registered deed of 1833.— Tucker
y. Henzill, 41. C. R. 518. (C.)

5, A., upon his marriage, in 1808, executed
marriage articles, whereby he covenanted
with trustees to provide at his decease £30,000
foraneldest son of the marriage; and (if there
should be living at his decease other issue
of the marriage than a son and daughter)
£20,000 for the younger children. He died in
1821, seized of real and personal estate, and
leaving an eldest son, C., and two daughters,
by whom a suit to administer his assets was
instituted. A receiver was appointed. Pend-
ing this suit one of the daughters died; and
C., soon after coming of age, having become
indebted on his own personal account to B.,
and being entitled as heir or devisee to his
father’s real estate, mortgaged it to B. to se-
cure the debt. The deed recited the articles,
the pendency of the suit, and C.’s intention to
pay off his sister. Held, that the sister’s claim
under the articles of 1808 had, as against A’s
teal estate, priority over the mortgage exe-
Priority,

cuted by C.—[Richardson v. Horton, 7 Beav.,
112, disapproved of.]—Hynes .v. Redington, 10
I. C. R. 206. (C.)

1. A. being sub-tenant of a college lease
for 14 years, with a toties quoties covenant for
“renewal, demised for 14 years with a like co-
venant, by an unregistered deed; and after-
wards assigned his interest to a purchaser for
value by a registered deed. Held, that the
purchaser having no notice of the unregistered
deed, was not bound by the covenant to re-
new, as it was not a lease within the 14th sec.
of the Registry Act—(6 Anne, cv. 2), which de-
clares that the Act shall not extend to leases
not exceeding 21 years, where the possesion
goes with thelease. Semble—A license to let,
at the tenant’s convenience, any part of the
premises included in a lease containing a non-
alienation clause, does not authorise an as-
signment of them.—Clarke v. Armstrong, 10
I. C. R. 263; 51 Jur. N.S, 89. (R.)

2, A rentcharge granted to secure a loan to
an owner in fee, subject to a rent, by a grant
before the 14 & 15 Vic., c. 20, has priority
over the rent, under the Land Improvement
Act, 10 Vie., c. 32,8. 38.

Semble—When the loan is made to a tenant
the rentcharge has not priority over the rent
reserved by his lease; such rent not being a
charge or incumbrance within the 38th sec. of
that Act.—Att.-General v. Evans, 11,1. C. R.
171. ()

3. A.,a solicitor, made to B. a mortgage of
lands, dated March 20th, 1856, but, by agree-
ment, not registered till April 3rd, 1859. A
lease on fine of the same lands was made by
A., on March 7th, 1859, to C., and registered
on March 16th in that year. In this last
transaction, A. drew the lease, and registered
it, and was paid costs out of pocket by C.,
who employed no other solicitor. Held, that
A. was C.’s solicitor. That the Court felt
itself constrained by the decisions to treat C.
as affected with notice of the mortgage
through A. as his solicitor, and to postpone
the lease to that mortgage accordingly.—In
re Rorke’s Estate, 18 I. C. R. 273; 81 Jur.
N. 8.58. (0. E. C.)—[Affirmed; 14 I. C.R.
442; 81. Jur. N. 8. 245. (C.A.)]

4. A disentailing deed executed in pursu-
ance of the Act for the Abolition of Fines
and Recoveries (4 & 5 W. 4, c. 92), is valid, if
enrolled within six months from the time of
its execution, although such enrolment has
not taken place until after the death of the
tenant in tail who executed the deed.

The 4&5 W. 4, c. 92, s. 66, applies only to
disentailing deeds executed by the same tenant
in tail, and not to deeds executed by successive
tenants in tail. Therefore, where A., a tenant
in tail, executed a disentailing deed, which
was enrolled within the six months prescribed
by the statute, but not until after A.’s death,
and B., a succeeding tenant in tail, executed a
disentailing deed to a purchaser for value, after
A’s death, which was enrolled prior to the en-
rolment of the deed executed by A.; it was

[DEEDS. ]

 

How lost. 231

held that the deed executed by A. was entitled
to priority over the deed executed by B.

The Act for the Abolition of Fines and
Recoveries has no application to the enrol-
ment of a disentailing deed by a tenant in fee,
nor to any disposition of lands otherwise than
by a tenant in tail in pursuance of the Act.—
Inre Piers’s Estate, 14 I. C. R. 452; 81. Jur. N.
S. 401. (C.A.)—[Affirming decision 13 I. C.
R. 459; 81. Jur. N. 8. 76 (1.E.C.)]

5. A recognizance was acknowledged, and
registered under the 7 & 8 Vic., c. 90, s. 11, in
the name of John Donovan Barron, by which
name the conuzee executed other instruments,
and was known in his family, though he had
been baptized by the name of John Barron.
He had, by the name of John Laurence Barron,
acquired, and sold to a purchaser, who hadno
notice of the recognizance, realestate. Held,
that against the purchaser, it was not a charge
on the real estate.

In order to bind the purchaser, the recog-
nizance should have been registered as acknow-
ledged by John Donovan Barron; and under
the head of “persons whose estates are sought
to be affected,” the name of John Laurence
Barron should have been entered.— Staunton v.
S., 151 C. R. 464. (R.)

 

XII. 3. Priority; how lost.

6. A party who, himself or by his agent, has
notice of a prior unregistered instrument, will
be postponed to it—Nixon v. Hamilton, 1 I. E.
R. 46; 2 Dr. & Wal. 364. (C.)

7. Actual notice that the lands are in the
tenancy of a third person is not such notice of
that person’s title thereto as will avoid the
effect of the Registry Act.—Popham v. Bald-
win, 2 Jones, 320. (H.E.)—[See Wallace v.
Dougal, 1 Dr. & Wal. 462. (C.)]

8. An annuitant (plaintiff in fifth cause),
by deed unregistered filed a bill for arrears,
making subsequent incumbrancers by deeds of
annuity and mortgage, duly registered (plain-
tiff in second and third causes), and a creditor
by judgment intermediate between the unre-
gistered and registered deeds (plaintiff in first
cause), defendants. The subsequent annui-
tant and mortgagee answered, insisting on their
priority to the plaintiff, by reason of the regis-
tration of their deeds; and the decree to
account declared that their priority was ad-
mitted by the plaintiff. The judgment credi-
tor, to whom a large sum was due, did not
seek relief in this cause, and allowed the bill
to be taken pro confesso against him. Before
any demands were proved or report made, the
plaintiff obtained assignments of the registered
annuity and mortgage; and the Master re-
ported that he did not find any thing due upon
them, the same having been assigned after
decree to the plaintiff, who declined to prove
any demand under them, being willing that
they should remain charged upon the unsold
lands. There was a final decree for the sum
due on the unregistered annuity, without re-
232 Priority,
gard to the registered incumbrances. Another
creditor (plaintiff in fourth cause) by judg-
ment, intervening between the registered and
unregistered deeds, not a party in the above
suit, filed his bill, and in his cause had a re-
port of the sum due to him. The fund in
Court was realised in this latter cause, but was
afterwards transferred to the credit of all the
causes, and its amount was considerably less
than the sum due upon the unregistered an-
nuity. The judgment creditors insisted that
their judgments were entitled in priority to
the unregistered prior deed, by reason of the
conflict and admitted priority of the registered
deeds subsequent to the judgments. Held, that
the judgment creditor, who was party to the
fifth cause, but allowed the bill to be taken
pro confesso against him, and did not prove his
demand in that cause, was bound by the final
decree, and could not be heard to insist on his
priority. That by conflict of unregistered and
registered deeds, judgments intermediate do
not obtain absolute priority to the unregis-
tered deed, until it is absolutely postponed to
the registered deed.

Semble—Where the decree to account de-
clared that the plaintiff, who was entitled
under an unregistered deed of the 10th July
1808, admitted the priority of A. and B., who
were entitled under registered deeds of 1827,
and then directed an account of incumbrances
prior to the deed of the 10th July 1808, judg-
ment debts, prior to the registered deeds of
1827, might be proved under the decree.

Semble—A. and B. having assigned to the
plaintiff after the decree to account, and no
demand being proved, nor any thing found
due upon the registered deeds, the unregis-
tered deed recovered its original priority to
the intermediate judgments, at least as to all
creditors not parties—Murtagh v. Tisdall, 3
I.E. R. 85; FL & K. 20. (R.)

 

DE EXCOMMUNICATO CAPIENDO.

See Practice, Writ.

 

DEFAULT.

— Of Appointment, Limitation in case of. See
Power, IX
— Decree by. See Practice, Decrer.

 

DEFECTIVE EXECUTION.
— When it will be aided. See Power.

 

DEFENCE.

— By answer, when proper.
ANSWER.

— Of Statute of Frauds, or Statute of Limi-
tations. See PLEADING, ANSWER.

— Of want of Parties. See Purapine, Par-
TIES.

— By Demurrer. See Pueapina, DEMURRER.

— By Plea. See Puzapine, Puza.

Sce PLEapine,

[DEEDS.]

 

How lost.

DEFENDANT.

— Generally. See Practice, Parry.

— Evidence of one against another. See Prac-
Tick, Evipence.

— Examination of on Interrogatories, or Viva
Voce. See Practice, EvipEnce.

 

DELAY.

See Venpor & Purcuaser, I1I—Lacurs—
AGREEMENT aND Contract, SPECIFIC
PERFORMANCE OF.

 

DELEGATION.

— Transfer of Powers by. See Powrr, XIII.
— Generally. See PrincipaL anp AGENT,
passim.

 

DELIVERY.

— Up of Securities, Deeds, Sc. See Bann-
ruptcy, XII— Dsrps, VII—Prac-
TICE, PRopuction or Drxps.

— Up of Securities by Parties out of Court.
See Practicn, XXXV.

—Of Possession. See Vendor anv Purcwa-
sER, VII.

 

DEMAND.

— Under the Tenantry Act. See Lanpiorp
AND Tenant, VI—Leasr, VII.

 

DEMISE.
See Dearu.

 

DEMUR, PAROL.
See Inrant, II.

 

DEMURRER.

— Answer with. See Prmapinc, ANSWER.

— Generally. See Puzapinc, Demurrer:
Practicr, Demurrer.

— Ore tenus. See Practicr, DemurREr.

— Speaking. See Punapinc, DEmuRRER.

— When overruled by Answer. See Prrap-
inc, Demurrer.

— Costs of. See Pracricr, Costs.

— To Interrogatories by Witness. See Banx-
rurtcy, VII—Pracricr, Evipence.

— To Interrogatories by Bankrupt. See BanK-
RUPTCY.

 

DENIAL.
— Act of Bankruptcy by. See Baxxrurrcy,
IV.

— Of Notice. See Practice, Notice.

 

DE NON DECIMANDO.
See Trrues, IX.
[DEVISEE.— DISABILITIES. }

DEPOSIT.
— Of Deeds. See Duxps, IV.
— Of Deeds by way of Mortgage. See Mort-

GAaGE—Practicn, Deposit or DEEDs—
Practicz, Propuction or Deeps.
— On Exceptions. Sce Practicn, ANSWER.
— On Exceptions to Report. See PRracricn,
Master, Rererence To.
— On opening Biddings. See Practicn, SaLEs
JUDICIAL.
— On Appeal. See ArrBat.

See also SECURITY.

 

DEPOSITIONS.
See Practice, Evipence—Bangrurtcy, X.

 

DESCENT.
— As to real Assets by. See Execurors, X,
XI

— Estate ‘by. See Estate, XII.

See the Law of Descent regulated by 3 & 4
W. 4, c. 106, and 22 & 23 Vic., v. 35, s. 19.

1., When a testator directs that his estates
shall descend as if he died intestate, the heir-
at-law takes by his title by descent.— Walcott
v. Bloomfield, 6 I. E. R. 227; 4 Dr. & War. 211;
2 Con. & L. 577. (C.)

2. An alien cannot take by act of law: e.g.,
by descent or courtesy.—Dumoncel v. D., 13
I. E.R. 92. (R.)—[See Doyle v. Dumoncel,
111. E. R. 342.]

 

DESCENDANTS.
See GRANDCHILDREN.

 

DESCRIPTION
— Of Bankrupt. See Bankruptcy.

 

DE SON TORT.
— Executor. See Executor, III.

 

DESTROYED BOND.
See Bonn, VII.

 

DETAINER.

See Bankruptcy, VII—VIII.
— Practice, Privitece From ARREST.

 

DETERMINATION OF PARTNERSHIP.
See PARTNERSHIP.

 

DEVASTAVIT.
See Executors, VII.

*

 

233

DEVISE.

— See Statute or Fraups, II—Wi1xt.

— Fraudulent. See FRAUDULENT ASSIGNMENT.

— Executory. See Executory Devisz.

— Over conditional Portions, when no Devisee
over. See Portions, II.

 

DEVISEE.
— See Hetr-at-Law, I—Pieapine, Partres—
Resipup, IV.
— As to Writ de Ventre Inspiciendo. See Prac-
TICE, WRIT. ‘ :

 

3. The right to set aside a conveyance im-
properly obtained by a solicitor from his client
is devisable. The heir-at-law is not a neces-
sary party to a suit by the devisee to set it
aside.—Uppington Bullen, 2 Dru. & War. 184;
1 Con. & L. 191. (C.)

4, P. purchased the lands of R., which were
then subject to a mortgage, for a term of years.
The mortgagee, V., was named as a party in,
but did not execute the conveyance, which re-
cited the mortgage, and that P. had agreed
with the mortgagor, C., to purchase all his es-
tate, interest, and equity of redemption in
and to R., and also all the estate and interest
of the several other parties to the deed; andin
consideration of money paid, and an annuity
granted toC., and of the sum due on foot of the
mortgage therein expressed to be paid to V.,
C. and V. conveyed R. to P., and his heirs,
freed from the mortgage. At P.’s death the
mortgage debt was unpaid. Held, that the
devisee of R. was not entitled to have it paid
out of P’s personalty.— Barry v. Harding, 7
I. BE. R. 313; 1 Jon. & L. 475. (C.)

5. A leasehold farm, subject to a non-alien-
ation clause, was assigned to the testator, V.,
in consideration of paying arrears of rent, and
an annuity to the vendor. The landlord re-
fused to accept V. as tenant; he never got
into possession, but died leaving the arrears
due, and purported to devise the farm to ptf.,
who was in possession (it did not appear how),
and transferred his interest as valueless to P.,
who was accepted as tenant, and paid the
arrears and annuity. Held, that ptf. (the de-
visee), was not entitled to claim the arrear
against V.’s assets, the sale to V. being a
nullity, and the arrears, therefore, never his
debt.

Semble—The ptf. would have been entitled
if the landlord had accepted him.—Worres v.
M,, 8 I. E. R. 325. (C.)

 

DISABILITIES.

See Inrant—Husbanp anp Wire—CIviL
Deatu.

6. A Roman Catholic entitled to real es-
tate omitted to take the oath necessary to
qualify him under the statutes to hold it, and
was not in enjoyment of it, nor were proceed-
ings taken to enforce his title until after the
passing of the R.C.E. Act, 10 G.4,c.7. Held,
that sec. 23 removed his former disability —
O'Connell vy. O Callaghan, 7 I.E. R. 596. (C.)

30
234

1. The doctrine of civil death by profession
ceased to be law at the Reformation, and was
not revived by the R. C. E. Act. Therefore,
the Court granted a receiver, on a bill filed to
raise arrears of an annuity devised in trust
for a lady (who afterwards became a nun),
during whatever period of her natural life
she continued unmarried.—Lvans v. Cassidy,
111. E.R. 243. (R.)

2. The doctrine of civil death, in conse-
quence of profession as @ monk or nun, is
not law at the present day.—Blake v. B., 4 I.
C. R. 349. (C.)

 

DISCHARGE.

— Of Debt. See Dest, [V—Parment.

— From.Incumbrances. See Estate, VIII.

— From Attachment. See Practice, ATracu-
MENT.

— From Contempt.

See Practice, Contempt,
— Of Decree.

See Practicr, DECREE.

— Of Order. See Practicz, OrpER.

— Of Receiver. See Practice, RECEIVER.

— Of Purchaser under Judicial Sales. See PRac-
TICE, SALES JUDICIAL.

— Of Sequestration. See Practicr, SEques-
TRATION.

— Of Ne Exeat Regno. See Practicr, Writ.

— Of Surety. See Princrpay anv Surety, IV.

— From Tithes. See Trruns, IX.

— Of Trustees. See Trusress, II.
— From Contract. See VENDOR AND Purcua-
SER, X.

See Practicr, Cuarce anv DiscHarcE.

 

«DISCHARGE OF LANDS.

By the 22 & 23 Vic., ¢. 35.

Sec. 10.—A release of part of hereditaments
from a rentcharge shall not extinguish
the whole rentcharge.

Sec. 11.—A release of part of hereditaments
from a judgment shall nor affect the va-
lidity. of the judgment as to unreleased
hereditaments.

[See 12 & 13 Vie. ¢. 77, s. 34.]

 

DISCLAIMER.
See Executors, I1I—Trustess, II.

3. A deft. in a foreclosure suit, ignorant of
her rights to the equity of redemption, filed
an answer and disclaimer; and after a decree
to-account applied for leave to withdraw the
disclaimer and amend the answer, or to file a
supplemental answer, stating her claims to the
equity of redemption. Motion refused, with-
out prejudice to any application by deft. after
satisfaction of ptf.’s demand under the suit.—
Glenny v. Murdock, Fl. & K. 277. (R.)

4. The tenant of an intermediate interest
in lands the property of a see, without having
renewed his lease or paid rent to his imme-
diate landlord for more than twenty years,
petitioned the L. E. Court to sell the fee; but
afterwards served upon his immediate land-

 

[DISABILITY.—DISSENTERS.]

lord a notice containing an offer to take out
a perpetuity grant. The landlord, by notice,
replied that he would execute the grant on
payment to him of all rent, fines, interest, and
costs of establishing his title in the L. E.
Court. Held, that that notice was a waiver of
the forfeiture.

Semble—That the tenant had, by disclaiming
his landlord’s title during the proceedings in a
Court of Record, forfeited his right to a re-
newal.

A tenant applying to the Court for af. f.
grant must pay all rent due, although the
landlord could not at law recover more than
six years’ arrears of rent.

A tenant who has claimed the fee against
his landlord cannot afterwards rely on the
presumption that the rent accrued more than
twenty years before he applied for af. f. grant.

A tenant applying for a f.f. grant or renewal
is bound to pay rent and fines due before his
landlord’s title to the reversion accrued. As
to such rent and fines, the landlord is a trustee
for those entitled — Courtenay v. Parker, 16 I.
C. R. 320. (R.)

 

DISCOVERY.

— When obligatory. See Practice, ANSWER.—
Banxruptcy, VII, VII.

— Tending to criminate, or to create forfeiture.
See Preapinc ANSwER.—BaNnkKRUPTCY,
VII, VIII.—Practicz, Puna.

— And relief. See Practicz, Bru For.

— Only Bill for. See Practice, Brrt—Prac-
TICE, Bir oF Discovery.

— Costs of. See Practice, Costs.

— Of Title. See Trrun, IV.

 

DISSEIZIN.
See ADVERSE Posszssion.

 

DISINTERESTED PARTIES.
— Joined in suit. See Piruavine, Parties.

 

DISMISSAL OF BILL.
— Generally. See Practics, Bixz, Dismissau
e :

OF.
— General Orders as to. See ibid.
— By Plaintiff. See ibid.
— By Consent. See ibid.
— Effect of. See ibid.
— By Defendant for want

ibid.
— Costs on.

of Prosecution. See

See Practicr, Costs.

 

DISSENTERS.
See Jews—ALIpns—QUAKERS.

5. In 1710, members of Trinitarian Pro-
testant Dissenting Congregations subscribed
moneys for charitable purposes; and, for ma-
naging the fund, executed a trust deed, which
recited that the objects of the trust were—
first, to support the Protestant Dissenting in-
{DISSENTERS.—DISTRIBUTIONS.]

terest against unreasonable persecutions; se-
condly, to educate youth designed for the mi-
nistry amongst Protestant Dissenters ; thirdly,
to assist poor Protestant Dissenting Congrega-
tions. Held, that Unitarian Protestant dis-
senters were not within the trusts.

To aid in construing such a deed, the
Court will receive evidence of the acts of the
founders, but not of their opinions.— A tt.- Gen.
v. Drummond, 1 Dr. & War. 853; 1 Con. & L.
210. (C.)}—[Affd., 2 H. L. Cas. 837; 14Jur.
137. See 3 Dr. & War. 165. (C.)]

1. To bring a case within the 7 & 8 Vic., c.
45 (Dissenters’ Chapel Bill), s. 2, the instru-
ment declaring the trust, or some book or
document referred to in it, must contain in
express terms the particular religious doc-
trines or opinions, or mode of worship re-
quired or forbidden. Therefore, a general
gift of money in trust to be applied towards
building a new meeting-house of the Protest-
ant Dissenting Congregation, then of New-
row, for the service and worship of God in
that way, is not within that exception.

When the declared trusts were to assist in
supporting and maintaining a gospel minister
of the Presbyterian persuasion, to preach
the gospel to the Presbyterian Congregation
whereof he was a member, meeting for divine
worship in Eustace-street, and to instruct
them and their successors for ever in the true
principles of the Christian Religion— Held, not
within the exception.

A congregation, professing not to be bound
by any human authority, and to be at liberty
to change their belief as often as their judg-
ment satisfies them that they are in error, is
not deprived of the benefit of the Act, by the
want of fixed doctrine, and may acquire a
right by 25 years’ usage.—Ait.-Gen. v. Hutton,
71. E. RB. 612. (C.)

 

DISSOLUTION.

— Of Partnership. See Partners, III.
— Of Injunction, and cause against. See PRac-
TIcE, InsuNcTION.

 

DISTRESS.

— Injunction against. See Practicn, Insunc-
tion. See Execution.—Dexrps, VI.—
Lanpiorp anp TENANT.

 

DISTRIBUTION.
— Decree for. See Practice, Decrez. See
Wits. See ApMINIsTRATION, I.—Exz-
cuTors, X., XI.

 

I. GENERALLY. JURISDICTION —~ WHAT Is
DISTRIBUTABLE ACCORDING TO THE STA-
TUTE.

 

Il. Wyo TaKE. WHETHER per capita or per
stirpes. (See Wits, XV, 6, 0.)

 

 

235

TI. Sarisraction oF SHARE, WHAT Is: AD-
VANCEMENT, &C.

IV. Srature or. Its construction: 22 & 23
Car. 2, c. 10, explained by 29 Car. 2,
ec. 80.

 

I. GENERALLY: JURISDICTION: WHAT IS DIS-
TRIBUTABLE ACCORDING TO THE STATUTE.

2. The Court will distribute a fundin Court
payable to a personal representative, upon a
diocesan probate, if the intestate had not
bona notabilia.—Graves v. G., 8 I. E. R. 36.

(R.)

3. Where a discretionary trust is vested in
trustees, the Court will not interfere with their
exercise of that discretion, if it be not capri-
cious or improper, though a suit be instituted
to adminster the trust funds.

If the trustees do not concur, the Court will
distribute the trust fund among the c. g. trusts
equally.

A. discretionary trust was vested in two
trustees, one of whom resided in Australia.
The Court refused to act on a scheme for dis-
tributing the trust-fund, although that scheme
was approved of by the other trustee and by
the solicitor in the suit of the absent trustee.
—Gray v. G., 18 I. C. R. 404. (R.)

4. An administrator is not bound to sell
chattels real of his intestate, in order to dis-
tribute the produce among the next-of-kin,
when there are not debts to be paid. If any
of the next-of-kin require him to convey to
them their respective shares, he may do so.—
Bradley v. Flood, Kirk vy. Flood, 16 I. C. R. 236.

@)

 

II. WHo TAKE: WHETHER per capita or per
stirpes.

 

III. Satisraction or SHARE, WHATIS: AD-
VANCEMENT, &c. See Witts XV, 6,0.

 

IV. Statute oF, ITS CONSTRUCTION: 22 & 23
Car. 2, c. 10, explained by 29 Car. 2,
ec. 30.

 

5. A marriage settlement contained a clause
declaring that the provision thereby made for
the intended wife in the event of her viduity,
should be accepted, deemed, and taken in full
lieu of dower or thirds to which she might be
entitled at common law, or otherwise howso-
ever. Held, that she was barred of her share
of her husband’s personal estate, under the
Statute of Distributions.—Jn re Burgess’ Trusts,
11LC.R. 164. (R.)

DISTRIBUTIONS, BOOKS OF.

See 14 & 15 Car. 2, ¢.2; 17 & 18 Car. 2,
¢c. 2, 8. 5.

6. The Down Survey, though it is conclusive

only as to the boundaries of the new and old

interests defined by the 14 & 15 Car., 2, ¢. 2.,
236

is, as a public document, admissible evidence
on questions touching matters stated in it.

The Books of Distributions, being only ab-
stracts of the Down Survey, are not admissible
as evidence of matters stated in them.—Arch-
bishop of Dublin v. Lord Trimleston, 12 I. E. R.
251. (C.)

1. The Book of Distributions is admissible
evidence on points relating to property de-
rived from the crown, under the acts of settle-
ment and explanation, at least when the
original survey cannot be produced.—Knoxz v.
Earl of Mayo, 71. C. R. 563. (C.)

 

DISTRIBUTIVE SHARE.
See Distrizetioy, III.

 

 

DISTRINGAS.
DIVIDEND.
— In Bankruptcy. See BANKRUPTCY, XV.
— On Stock. Se Stock.

 

DIVISION OF DAY.
See Time.

 

DIVORCE.
See HusBaND AND WIFE.

 

DOCKET: DOCKETTING: REDOCKET-
TING, &.

See Bankruptcy, VI.—Jupement, I.

 

DOMICILE.

[As to the domicile of persons dying abroad,
for the purposes of testate or intestate succes-
sion, see 24 & 25 Vic., c. 121.)

2. Semble—An infant, trading in a foreign
country, may acquire a domicile there.—
Stephens v. M‘Farland, 8 I. E. R. 444. (R.)

3. Husband and wife being domiciled in
Scotland, where a wife has not an equity to a
settlement, the Court ordered a fund, the pro-
perty of the wife, to be transferred to them,
or their attorney thereto lawfully authorised,
without requiring the wife to appear to waive
her equity.—Jn re Molyneux minors, 51. C. R.
346. (R.)

4. A testator described himself as of L. in
Ireland, at present at St. D. in Grenada. He
died there. The Court assumed that Ireland
was his domicile.

To raise the point, the question of domicile
should be pleaded, as well as the law of Gre-
nada, if different from that of Ireland.—Ken-
nedy v. Kelly, 71. Jur. N. S. 826. (P.)

5. Deceased had originally been domiciled

 

[DOMICILE.—DONATIO M. C.]

in Ireland; but had, as was alleged, acquired
an American domicile, and had returned, and
died here, in itinere.

Semble—He never lost his domicile of origin ;
or, if he did, his return to Ireland revived it.
Sullivan’s Goods, 8 I. Jur. N. 8. 318. (P.)

6. After probate issued, assets of the testa-
tor were discovered in Scotland. Held, that
under the 21 & 22 Vic., c. 56, s. 14, there might
be written on the probate a memorandum
that, at the testator’s death, his domicile was
in Ireland.—In re the Goods of Mackay, 10 I.
Jur. N. 8. 80. (P.)

7, A minor, having made a Scotch ‘“ matri-
monial contract” of doubtful validity, became
a widow, and entered into the enjoyment of
her jointure. There being no evidence of the
Scotch law on that subject the Court held that
the contract had been confirmed.

A Scotch deed, aptly worded, may operate
as a marriage, so that an interest limited to
vest on marriage may pass thereby, although
it could not pass unless vested.

“ Presently,” held to mean “immediately.”

Semble—A Scotch advocate’s opinion on a
question of Scotch law is not receivable in
evidence unless expressed in the form of an
affidavit and in general terms, not pointed at
the circumstances of the particular case.

Quere—Whether proceedings for service, as
heir in Scotland, in which the ancestor’s domi-
cile is stated, are admissible as evidence
thereof ?

Although change of domicile depends on
intention, that intention must be inferable
from the person’s acts at the time of the
change. It is not sufficient that an affidavit
stating such an intention is filed during the
trial.

A lady, whose husband died in 1832 a do-
miciled Scotchman, whose family residence
passed by his death to another, but who re-
tained property in Scotland, soon left Scotland,
and lived, with her infant daughter, at various
places in England. She occasionally visited
relatives in Scotland. The daughter attained
age, and died a few months afterwards, at
Nice, in Jan. 1850. Held, that the daughter’s
domicile was Scotch.

Costs of appearing by counsel at the argu-
ment are not allowed to a trustee who has
brought in the fund under the Trustee Relief
Act, when all the beneficiaries are free from
disability, and the case has been fully argued
on their behalf, although the contrary practice
prevails in England.

The costs of lodgment, and of the motion
for costs, will be given.—Lockhart’s Trust; ex
parte Lady Lockhart, 111. Jur.N. 8. 245. (R.)

 

DONATIO MORTIS CAUSA.

8. Whena disposition of money is attempted
to be supported as a donatio mortis causa, a
mere general statement of the fact, that a gift
was made, is not sufficient: the Court requires
to be informed of the most minute particu-
lars, how, and where, and in whose presence
Rights of.

the gift was made, and in what condition of
mind and body the alleged donor was.

It is essential to the validity of a donatio
mortis causa, that the money, or the subject of
the gift, should be actually handed over at the
time.— Thompson v. Heffernan, 4 Dr. & War.
285. (C.)

 

DORMANT.
— Partners. See Partners, X.

 

DOUBLE PLEA.

 

DOUBLE PORTIONS.
See Lucacy, VII—Portions, X.

 

DOUBLE PROOFS.
See Bankruptcy, VI.

 

DOWER—FREE BENCH—THIRDS.

— Effect of Execution of Power, as to. See
Power.

— Costs, as to. See Practrics, Costs, 10. Srr-
TLEMENT — Statute — Evection, IL—
JOINTURE, I.

[See the Dower Act, 3 & 4 W. 4, c. 105, 1
Jan. 1834.]

Dowress authorised to make leases for 21
years, 19 & 20 Vic., c. 120, ss. 32 & 33.

Leases for lives renewable converted into
fee-simple under ‘‘ Renewable Leasehold Con-
version Act,” 12 &13 Vic., c. 105, not subject
to dower when marriage was before the Act,
but otherwise where after the Act.

 

I. Or tHe Wrpow’s RIGHTS RESPECTING
Dower: 1ts AssIGNMENT AND ReEco-
VERY.

II. Arrears oF.

 

I. Or wat a Wire 1s DowaBLe.

 

IV. How Barren, ForreivEeD, SATISFIED, OR
RELEASED.

 

I. A Wivow’s Ricuts to Dower:
SIGNMENT AND RECOVERY.

J. A. on his marriage with C. in 1804,
conveyed lands, of which he was equitable
tenant in tail, to B., as an indemnity against
incumbrances on other lands purchased by B.
from A. On his father’s death afterwards,
the legal.fee descended on A, In 1813, C.
joined A. in conveying the estates to the use
of himself, his heirs, and assigns—habendum
free from dower. They levied a fine to the
uses of this deed, whereby A. had charged
lands held p. a. v., with an annuity of £200,
by way of jointure, for C. After A.’s death,
these lands proved only sufficient to pay prior
incumbrances. C. filed against all persons
(except bona fide purchasers for value since
1818) interested in the lands, a bill claiming
dower, and for an account. Held, that, as
against B., the bill shonld be dismissed with
costs; but that the account should be decreed

irs As-

[DOWER.]

 

Arrears of. 237

against the heirs of those claiming as volun-
teers under A. As against them also the bill
would have been dismissed, if, before levying
the fine, the legal fee had been actually con-
veyed for indemnity purposes; the Court
would not have had jurisdiction to relieve
against the fine. i

Semble—C. became dowable out of the lands
when the legal fee descended on A.

if, before marriage, a man contracts to sell
an estate, his wife is not dowable thereout,
though the marriage happens before the con-
veyance is executed.—Loyd v. L., 2 Con. & L.
592. (C.)

2. This Court will not sell discharged of a
dower when a decree of the Court of Ch. to
sell the lands contained no direction to sell
discharged of it—Jn re Thornhill, 2 I. Jur.
212. (LE.C.)

8. A., who had married in 1852, purchased
an estate in 1837, subject to a satisfied term,
of which he procured an assignment to a
trustee for himself. He afterwards executed
three mortgages, in each of which he cove-
nanted that the lands were free from dower.
On the occasion of the first mortgage, the
deed of assignment of the term was delivered
to the solicitor for the mortgagee; but it did
not clearly appear that he retained the exclu-
sive possession of it. eld, that, notwith-
standing the saving in the statute 8 & 9 Vic.,
c. 112, the term had ceased by the operation
of that Act, and the mortgagees were not
entitled to its protection against A.’s wife’s
right to dower.—Jn re Sleeman, 4 I. C. R. 563;
11. Jur. N.S. 29. (P.C.)

 

II. Arrears or Dower.

 

Il. Or wHat A Wipow Is DOWABLE,

Out of equitable estates, by statute 3 &
4 W. 4, ¢. 108, s. 2.

Out of grants in fee-farm under Renewable
Leasehold Conversion Act, 12 & 13 Vic., v.
105, s. 9.

[See 14 & 15 Vie., c. 120.]

 

4. G. devised all his real estates to T., upon
trust to pay thereout several annuities, and
(amongst others) “one other annuity of £300
to my said nephew, T., his heirs and assigns
for ever.” Held, that T.’s widow was not en-
titled to dower out of the estate taken by T.
under the will, either in the land or rent, his
interest in the rent being merely equitable—
Lyster v. Mahony, 1 Dr. & War. 236. (C.)

5. A., being, on his marriage with C., equi-
table tenant in tail of lands, conveyed them in
1804 to B. as an indemnity against incum-
brances on other lands purchased by B. from
A. Subsequently the legal fee descended to
A. on his father’s death. In 1813, C. joined
in a conveyance by A. of the estates to his
own use, and the use of his heirs and assigns,
habendum free from dower. A. and C. levied a
fine to the uses of this deed, by which A. had
charged lands, held pur autre vie, with an an-
238 Arrears of.

nuity of £200 for C., by way of jointure. A.
died; these lands proved only sufficient to
pay prior incumbrances. C. filed, against all
persons interested in the lands, except against
bona fide purchasers for value since 1813, a
pill claiming dower. Held, that as against B.,
the bill should be dismissed with costs; but
that the account prayed for should he decreed
against the heir of the parties claiming as
volunteers under A. The Dill would have
been dismissed as against them also, if, before
levying the fine, the legal fee-simple had been
actually conveyed for the indemnity purpo-
ses; the Court would have had no jurisdiction
to relieve against the fine. i

Semble—When the legal fee descended on
A., C. became dowable out of the lands.

If a man, before marriage, contracts to sell
an estate, but marries before the, execution
of the conveyance, his wife is not dowable out
of the estate.—Loyd v. L., 2 Con. & L. 592.
(C.)

1. An ante-nuptial settlement recited that
the intended wife was entitled to certain choses
in action, and that the intended husband being
then in trade, it was considered more benefi-
cial for the parties that he should not for the
present make any settlement of any part of
his property. The choses in action were then
eonveyed to a trustee in trust to pay the in-
terest, &c., arising from them, to the husband
for life, and after his death to assign them to
the wife if she should survive him; if she
died in his lifetime, to assign them to him; if
he should secure to her at any time thereafter
an annuity of £250 during her life, then in
trust to assign the choses in action to him, such
annuity to be taken by the wife in lien and
bar of dower and thirds, or claim to any
share of his personal estate under the Sta-
tute of Distributions. The husband, subse-
quently to the marriage, acquired by purchase
the lands of T. in f. f., and died without hav-
ing secured to the wife the annuity of £250.
Held, that she was entitled to dower out of
the lands of T.

-The husband, D., devised all his estate and
interest in the house and lands of T. (subject
to the charges after mentioned) to his eldest
son A. for life, and on A.’s decease, to all his
sons, in such shares as he (A.) should appoint,
and in default, in equal shares among such
sons. There were similar limitations to D.’s
son B. and his sons, and C. and his sons, and
over, in each case, subject as before. Then
followed a power to A., when he should be in
possession of the lands of T. to grant to any
wife £500 per annum for her jointure, and in
bar, or without bar, of her dower, and to cre-
ate a term for securing it. There was also a
power for A. to charge the lands with £5000
for his daughters in a certain event, and to
ereate a term for the purpose. D. declared
that it should be lawful for the devisees, ‘“ac-
cording as they or any of them shall be in pos-
session of the estate of T., to demise or lease
all and singular, or any part” thereof, for any
term not exceeding twenty-one years. After
creating «a charge of £3000 on the house,
lands, furniture, &c., at T., for his daughter

[DOWER.]

 

Barring, Sc.

and bequeathing to his wife, “in addition to
the sums already settled on her,” an annuity
of £50 during her life, and charging that an-
nuity and his private debts (not trade debts)
on the house, lands, furniture, &c., at T., and
directing his son A. to pay the head rent of
the lands,—D. concluded his will by saying,
“JT hereby ratify and confirm the settlement
made on my wife.” Jield, that the widow
must elect between her dower and the annuity
of £50.—Robinson v. Wilson, 13 I. E. R. 168.

CC.)

2. A widow filed a bill for dower against
alienees of her husband. To make out her
title to dower, the petitioner was obliged
to give in evidence a deed conveying the
estate to the person from whom her husband
claimed. This deed recited that the legal
estate was outstanding in trustees. The pe-
tioner also gave in evidence orders of the
Court of Chancery, to show that such recital
was mistaken. Held, that she was entitled to
a reference to ascertain the lands of which
she was dowable.—Kernaghan v. M‘Nally, 11
IC. R.52; 5. Jur.N.8. 51. (C.A.)

 

IV. How a Wipow’s Ricuts To DowERr May
BE BarreD, ForreireD, SatisFIED,
oR RELEASED.

[See 3&4 W. 4, c. 105, s. 13.]

8. A future contingent provision accepted
by an adult female upon her marriage in lieu
of dower is, in equity, a valid bar to dower.—
Re Herons, Fl. & K. 330. CR.)

4, A settlement provided for the intended
wife a jointure, which was declared to be in
full lieu, bar, and satisfaction of any dower or
thirds which she could or might otherwise
claim at common law out of any or all of the
estates, real, personal, or freehold, of which
the intended husband was then or should at
any time thereafter become entitled to or
possessed of. Held, that the widow was barred
of all interest in the undisposed residue of her
husband’s personal estate.— Gurly v. G., 2 Dr.
& Wal. 463 (C.).—[Affd., 8 Cl. & F. 743.)

5. Lands, the property of A., held under leases
for lives renewable for ever, and long terms for
years, were, upon the marriage of A. with B.,
conveyed to trustees, upon trust to pay the
yearly rents, issues, and profits to A. for his
life, so long as he should continue solvent
and able to support and maintain B., and
no longer; and, from and after his death, or
his becoming insolvent, or failing in trade, or
being unable to support B., then to pay the
rents and profits to B. for her life, for her
own sole and separate use. Held, that this
settlement did not bar B.’s right to jointure
out of fee-simple estates acquired by A. after
his marriage —Fyan v. Henry, 2 Dr. & Wal.
556 (C.)

6. Under the 10 Car. 1, sess. 2, c. 1, s. 6, @
woman may by jointure be barred of dower.
But she is, if evicted from her jointure in
Barring.

whole or in part, to have dower in lands to
the value of those from which she has been
evicted. Thus the Legislature acts on the
equitable principle of compensating the wife
out of the lands subject to her original right
of dower, if wholly or partially the jointure
fail which is provided for her in lieu of it—
Irwin vy. I, 41. E.R. 3873. (R.)

1. Where a husband, by will, provided amply
for his widow, giving her part of his estate for
her life, and also an annuity charged upon his
general estate, with powers of distress -and
entry in case of non-payment; and the will
also contained a leasing power, for the trus-
tees thereof, which overrode the entire free-
hold estate—Held, that these provisions suf-
ficed to indicate an intention to exclude the
widow from her dower.—Haill v. Hill, 1 Dr. &
War. 94. (C.)

2. Marriage articles containing a bare co-
venant that if the husband should die in the
wife’s lifetime, without leaving issue, she
should be entitled to one-half of whatever
real or personal estate he should die seized or
possessed of, and containing no provision in
the event of his dying leaving issue—Held,
from the general intent apparent on them, to
bar the widow of her dower out of the re-
maining moiety of the husband’s estates.

The effect of election against a will is to
give the property which was devised to the
party electing to the devisees dissappointed
by the election; and it never goes as if un-
disposed of by the will.—Hamilton v. Jackson,
81. E.R. 195; 2 Jon. & L. 295. (C.)

3. By a marriage settlement, £400, the wife’s
fortune, was given to the husband, and some
terminable interests were conveyed by his
father to trustees to pay the wife, if she sur-
vived, an annuity “or jointure” of £40. The
husband covenanted that if these properties
should fail or be deficient, all the real and
personal estate he should die seized of, &c.,
should be vested in the trustees to raise £400,
or buy an annuity of £40 for the wife. Held
sufficient to. bar her right to dower.—Killen v.
Campbell, 10 I. E. R. 461. (C.)

4, An ante-nuptial settlement recited that
the intended wife, V., was entitled to certain
choses in action; and that, the intended hus-
band, C., being in trade, it was considered more
beneficial for the parties that he should not
then settle any portion of his property. The
choses in action were conveyed in trust to pay
the interest, &c., arising from them to C. for
life, and after his death to assign them to V.,
if she survived; if not, toassign them to C.;
but, if C. should secure V. an annuity of £250
for life, then in trust to assign the choses to
C.; “such annuity to be taken by V. in lieu
and bar of dower and thirds, or claim to any
share of C.’s personal estate under the Statute
of Distributions.” C. after the marriage, ac-
quired lands in fee-farm, but died without
having secured to V. the annuity. Aeld—
that V. was entitled to dower out of those
lands.—Robinson v. Wilson, 131. E. R. 163.(C.)

[DOWER.]

 

Releasing, Sc. 239

5. C., tenant in tail of lands, upon his mar-
riage settled them, and charged them with a
jointure for his intended wife. The deed was
not enrolled pursuant to the Statute for the
abolition of Fines and Recoveries. On the
death of C. the remainderman entered. The
wife presented her petition, praying that she
might be declared entitled to dower out of
these lands. Held, that the settlement created
an equitable bar to her claim for dower out
of these lands,

C. devised fee-simple lands “ upon trust to
pay the rents and profits thereof to B., for the
term of her natural life, provided she did not
marry,” and at her decease, to her children.
Held, that this devise, by the 3& 4 W. 4, c.
105, disentitled the widow to her dower, and
that this was a condition subsequent.

Semble, that she could not claim under the
10 Car. 1, sess. 2. c. 7, dower out of the lands
of the husband, not charged by the settlement ;
as, under the circumstances, she was not
dowable out of those lands.—Cooper v. C., 1
I. Jur. N. 8. 370. (C.)

6. A term of years created before the pas-
sing of the 8 & 9 Vic. c. 112, was assigned to a
trustee for a husband, who subsequently mort-
gaged the lands. The mortgagees did not
obtain an assignment oftheterm. As against
them— Held, that the term was not attendant
upon the inheritance, within the statutory
saving, so as to protect the lands from dower.
In re Sleeman’s Estate, 1 I. Jur. N.S. 29;
41.0. R. 563. (P.C.)

‘7. C., by marriage settlement dated in 1847,
granted a jointure to B., his intended wife, in
lieu of all dower or thirds, which B. “might
receive out of his lands.” C. was tenant in
tail of the lands on which the jointure was
charged. The settlement was not enrolled.
C. died without issue and without having
barred the entail. The remainderman in tail
entered, and refused to pay the jointure.
Held, that B. was not entitled to dower, al-
though the jointure failed. Cooper v. C., 6 I.
C.R. 217. (C.)

8. G. by will, bequeathed to F., his wife,
“all such of his books, plate, and jewels, as
she might select, or the whole if she chose,” ha-
bendum for her life ; and he bequeathed all the
residue of his personal estate to B. absolutely.
B., by his settlement granted to A., his in-
tended wife, a jointure in satisfaction of all
dower or thirds which she could claim out of
his real or personal estate. F. selected a few
of the jewels, and B., after his marriage, gave
the residue of the jewels to A. B. died leay-
ing A. surviving. Held, that A. took as para-
phernalia the jewels given to her, and that she
was not barred of her right to them by the
provision in the settlement, making her join-
ture a bar of dower and thirds. Berry v. B.,
61.C. R. 497; 31. dur, N. 8.98. (C.)

9. A marriage settlement contained a clause
that the provision thereby made and intended
for the wife in the event of her viduity, should
be accepted, deemed, and taken in full liew of
240

dower or thirds to which she might be en-
titled at common law, or otherwise howsoever.
Held, that she was barred of her share of her
husband’s personal estate, under the Statute
of Distributions.—In re Burgess’ Trusts, 11 I.
C. R. 164; 61.Jur.N. 8.12. (R.)

1. Marriage articles recited that the father
of the lady, C., who had attained age, had
agreed to give her a portion, and that the gen-
tleman, A., had agreed to settle properties to
secure a jointure; and for that purpose to
convey them, if their sale to him was con-
firmed, or otherwise to assign the purchase-
money of the properties then lodged in Court,
to trustees, to secure the jointure; and fur-
ther recited, that A. had purchased the lands
under a decree, and had lodged the purchase-
money, and that title was in process of being
made. A. covenanted with the trustees, in
consideration of the marriage, and marriage
portion, that he and his heirs would convey
the lands (when the title thereto should be
perfected, and the same conveyed to him, and
his heirs) to the trustees, to hold to his use,
for life, and after his decease to the use that
C. should, during her life, receive a jointure:
and subject to such jointure, and to a term, to
secure the payment thereof to the use of A.
and his heirs. And if the sale should not be
completed, and the sum lodged in Court should
become payable to him, it was covenanted
that it shofld be received and taken by
the trustees upon trust to invest it in the
funds or in lands; in trust, as to the interest
or rents, for A. for life, and after his decease
to secure a jointure for C., and subject to such
jointure for A. and hisexecutors. A. coven-
anted with the trustees that if the lands or the
purchase-money should not, by the interest
thereof, produce the amount of the jointure,
all his other property, and all the property
to be thereafter acquired by him, should be
charged with the payment of the deficiency.
Held, that C. was barred of her dower by the
articles.—Jn re Dwyers, 13 I. C. R. 431. (R.)

 

DOWN SURVEY.

See Distripvutions, Booxs or.

 

DRAINAGE AND DRAINING.

See GENERAL OrpeRS or Marcu 1846:
3&4 Vic. c. 55.

 

DRAINAGE ACTS.

5&6 Vic. v.89: 8&9 Vic, c, 69: 9 &10
Vic., ¢. 79.

See9 & 10 Vic., c. 101: 10 Vie., ¢. 32, ss.
6&7: 138 & 14 Vic. c. 81, 8.8: 15&16 Vic, c.
84: 26 & 27 Vic., c. 88: 27 & 28 Vie, ce. 72:
28 & 29 Vic. v. 52: 80 & 31 Vic., cc. 43, 139.

 

[DOWER.—DRAINAGE ACTS.]

SHANNON NAVIGATION.

[See 5&6 W.4, c. 67.]

2. The expense of works under the Drainage
Acts was estimated by the engineer of the
Commissioners of Public Works at £8378.
The works proceeded, with the assent of the
proprietors, and were returned to the House
as completed according to the original design
at £11,110. 4s. 3d. Afterwards additional
works became necessary, the lands having been
flooded in consequence of works carried on by
the Commissioners in a neighbouring district.
They, without the assent of the proprietors,
and without taking the proceeding required
by the Acts, completed the additional works,
and signed an award, charging the entire ex-
pense at £21,026. 14s. 1d. The Court granted
an injunction against enrolling the award,
which, under the Acts, would be binding and
conclusive against all parties when enrolled.

The Act provided that it should not be law-
ful for any person whatever, in any manner,
to question or appeal against, or in respect of,
anything whatsoever done or omitted to be
done by the Commissioners, under the provi-
sions of recited Acts and that Act, nor should
any proceeding had or taken by or on behalf
of the Commissioners, for the purposes of the
Acts, be removed or removeable by certiorart
into any Court of Record. Held, following
Sharply v. Hornsby, 4 I. Jur. 38, that the pro-
vision applied only to questions of procedure,
and afforded no protection when the Commis-
sioners had exceeded their jurisdiction.—Fos-
ter v. Hornsby, 2 I. C. R. 426; 5 I. Jur. 279.
(R.)

3. The 8&9 Vic., v. 69 (the Drainage Act),
s. 52, only applies to cases within its 29th and
30th sections. The effect of drainage opera-
tions of the district was to injure the water-
power of a mill; but no dam, &c., connected
with the mill was altered. The original water-
power could not be secured without reinstat-
ing the district in the position in which it
had been before the commencement of the
drainage operations. Held, that the owner of
the mill was not entitled to maintain a peti-
tion under the 52nd sec.—Malley v. Hornsby, 3
I.C. R. 520; 61. Jur. 121. (C.)

4. The Commissioners of Drainage, without
exceeding their jurisdiction, carried on works
in so negligent and expensive a manner, that
the sum stated in their award very largely ex-
ceeded that stated in the estimate of their
engineer, on the faith of which the proprietors
of the lands assented to the works. Held, that
(assuming that the facts stated in the petition
were proved) an action for negligence would
lie by the proprietors against the Commis-
sioners; and that the Court had power, and
was bound, to grant an injunction to prevent
the signing and enrolling of the award until
the action was determined, which the peti-
tioners undertook to bring.—Stubber v. Hornsby,
21.C. R. 449; 51. Jur. 281. (R.)

5. Quit-rent is a debt or incumbrance affect-
ing the lands, in payment of which money
[DRAINAGE.—EASEMENTS.]

lodged in Court, and awarded as compensation
for damages occasioned by works carried on
by the Commissioners of Public Works, may
Me applied, under the Lands Cl. Con. Act, s.

Advances to a tenant for life, under the
Drainage Act (5 & 6 Vic., c. 89), should not
be paid out of the fund so lodged in Court,
such fund representing the corpus of the estate,
and the tenant for life being bound to pay the
annual instalments which fall due during his
life, it being possible that the whole of such
instalments may become payable during his
life.— Commissioners of Public Works, ex parte
Studdert, @I. C. R. 53. (R.)

1. When the Commissioners of Public
Works by drainage operations diminish the
water-power of a portion of a river dividing
two properties, on one of which is an existing
mill, and the arbitrator awards one entire sum
as compensation for such water-power ; that
compensation must be deemed to have been
awarded in respect to the existing mill, not
in respect of the unemployed water-power,
which might be available for the proprietor of
the other side of the river.—=St. George v.
Redington, 10 I. C. R. 176. (C.A.)

2. A rentcharge granted to secure a loan
to an owner in fee, subject to a rent, by a
grant before the 14 & 15 Vic, ec. 20, has
priority over the rent, under the Land Im-
provement Act, 10 Vic., v. 32, s. 38.

Semble—When the loan is made to a tenant,
the rent-charge has not priority over the rent
reserved by his lease; that rent not being a
charge or incumbrance within sec. 38 of that
Act.—The Att.-Gen. v. Evans, 111. C. R. 171.
®.)

 

DRAMATIC LITERARY PROPERTY.

See Corrricut.

 

DRAWING UP DECREE.

See Practicr, Decres.

 

DRUNKENNESS.

8. Principles upon which the Court acts in
suits to set aside deeds on the ground that the
grantor was intoxicated when he executed it.
Nagle v. Baylor, 3 Dr. & War. 60. (C.)

 

DUMB AND DEAF PERSONS.
See Lunacy.

 

DURATION

— Of Annuity. See Annuity, VI.
— Of Lease and Tenancy. See Leass, Il.
— Of Partnership. See Partnersuip, I.

 

241

DURESS.
See AGREEMENT, [V—Bonp, III—DeEeEps,
VIL

 

DUTY ON LEGACIES.
See Legacy Dury.

 

EAR-MARKED PROPERTY.

 

EASEMENTS.

See the Prescrirtion Act, 2&3 W.4, c. 71,
extended to Ireland by the 21 & 22 Vic.,
ce. 42.

4, Partners of a flour-mill and corn-mill, to
which one mill-pond supplied water, agreed
for a partition of the mills between them by
lot; the water to be a joint right; he who
obtained the flour-mill to be entitled at all
times to enter the other’s establishment for
the purpose of more effectually scouring the
water-course. Hither party necessarily mak-
ing any proper outlay for such purpose might
claim and recover half the amount from the
other. Should the water at any time prove
insufficient to work both mills together, each
was to have the right to the entire of the
water during each alternate twelve hours.
Held, that the parties were entitled to a joint
and equal right to the entire water, al-
though at the date of the agreement the
supply to the mills was unequal. Form of
decree for a partition of a joint right of
water—Hamilton v. Fawcett, 9 I. C. R. 397.

R.)

 

EAST INDIA COMPANY.
See Estates In E. ano W. Inviss.

 

ECCLESIASTICAL COURT.
See Court, II—Jurispiction, IV, VI, VII—
Practice, Writ.
— Uniting Diocesan Courts, §¢.: Procedure :
Appeals.—27 & 28 Vic., c. 54.
— Their Jurisdiction abolished in Ireland in cases
of Defamation: in England and Ireland in
cases of Brawling: 23 & 24 Vic., c. 32.

See EccLestasticaL Courts, next title.

 

ECCLESIASTICAL PERSONS AND
THINGS.

See Przapine, Parties.— Srarurss, con-
struction of, IT, and the following
STATUTES.

Advowsons, sale of, by Mun. Corpns., 3 & 4
Vic., c. 108, s. 148.

Ages ei those admitted into Orders, 44 G. 3,

c. 43.
ONY: recovering arrears of, 30 & 31 Vic.,
ce. 11,
Archbishops and Bishops may ordain specially
for the Colonies, 59 G. 3, c. 60.
[Amended by 15 & 16 Vic. v.52. See
16 & 17 Vic., c. 49.]

aL
\

242 Statutes [ECCL. PERSONS

Archbishops, &c., may permit certain clergy,
not belonging to the Established Church,
to officiate in dioceses in the United
Kingdom, 3 & 4 Vic., c. 33.

[Amended by 15 &17 Vie., c. 52.)

Archbishops, &c. (Coadjutors), enabled to exe-
cute powers, 52 G. 3, ¢. 62.

[See 6 & 7 Vic., c. 62.]

Archbishops, &c., demising powers, 53 G. 3, |
c. 92.

[See 3&4 W. 4, c. 37.]

Archhishops, &¢., may charge certain costs on Municipal Corporations:
their Sees, 8&9 Vice., c. 51. ,

Archbishops, &c., may compromise certain ,
suits, 11 &© 12 Vie., c. 76.

Archbishops may provide for the performance }
of Episcopal functions in case of inca- |

pacity, 6& 7 Vic., c. 62.

Bishops’ relieved from certain liabilities, |,

6&7 Vic. c. 57.

AND THINGS.] Relating to.

Lands, Church, improvement of, 14 & 15 Vic.,
ec. 71, 73.

, Renewing leases of, 14 & 15 Vic., c. 74.

—, ’ Deémising, 53 G. 8, ¢. 92.

[See 3&4 W. 4,¢. 37]

Leasing Acts :—21 & 22 Vic., c. 57; 28 & 29
Vic., c. 57.

Malicious injury to Church, &e., 9 G. 4, c. 56;
5&6 Vic, ¢. 28, s. 7.

Ministers’ Money, abolishing it, 17 & 18 Vic.,

e. 11.
Sale of Church Pa-
tronage, 3&4 Vic. c. 108, s. 148,
‘Oran, 10 G. 4, ¢. 58.
| Patronage, Tenants for life, &c., naay charge
estates with costs of asserting rights to,
8&9 Vie. v. 51.
, settlement of, in Ecclesiastical Unions,
14.& 15 Vic., ec. 71, 72.
[See 21 & 22 Vic., ¢. 59.]

 

 

Renewal of certain leases in Ireland, 14 & 15 | Pluralities, 13 & 14 Vic., c. 98, s. 15.

Vic., c. T4.

Arrests (wrongful) of Clergymen: punishment | Rates and ae recovery ‘of, 54

in Ireland, 10 G. 4, c. 34.

Benefices, stamp- duty on Collation, 5 &6 Vic.,
e.82.

, consolidating law as to, 7 G. 4, c. 73.

, holding plurality of, 13 & 14 Vie., c. 98.

 

 

 

Vic., c. 67.

 

[See 28 & 29 Vic., c. 82.]
Bray, parish of, 5 G. 4, c. 81.
Burial-grounds, 5 G. 4, c. 25.
[See 19 & 20 Vie., c. 98; 23 & 24 Vie.,
c. 76; 29 & 30 Vic., c. ’38.]
Building, &e., Churches, &e.; Glebe-houses, |
&e., 14 & 15 Vic., c. 723 21 & 22 Vic., ¢.59.
[See3&4W.4, e.87;4&5 W.4,¢.
90; 6&7 W.4,¢. 99.]
Chapels of Base, 14& 15 Vic., c. 72; 21 & 22
Vic., ¢.
Cities, one ons for Ministers in, 7 & 8 G. 4,
c. 34,
[See 17 & 18 Vic., c. 11.]
Crown-rents, arrears of, 48 G. 3, ¢. 47.
Colonial Clergy, 26 & 27 Vic., c. 101.
District Parochial Churches, 14 & 15 Vic., ¢.
17; 26 & 27 Vic., c. 123.
Ecclesiastical Courts, 54 (7. 3,¢c. 68; 14 & 15
Vic., ¢. 57, 8.1; 20 & 21 Vie., ¢. 79, s. 101.
, Costs in, 5 G. 4, ¢. 27.
, Salary for Judge of Prerogative Court,
7 & 8 G. 4, ¢. 44.
[See 20 G21 Vic., v. 79, s. 101.]
, Process, enforcing for ‘contempt, 2&3
W. 4,¢. 93.
, abolishing Testamentary Jurisdiction,
20 & 21 Vic., c. 79.
, uniting Diocesan Courts:
Appeals, 27 & 28 Vic., ¢. 54.
First Fruits, 3&4 W. 4, ¢. 387.
Forms of Prayer, 22 Vic., c. 2
Glebe-houses, &e., 3 & 4 W. 4, c. 87; 4&5
W. 4, ¢.90; 6&7 W. 4, 6. 99.
[See 3 & 4 Vic. c. 101; 14 & 15 Vic,
ce. 71 & 73.)
, power to lease Glebe-lands, 20 & 21
Vic., c. 47.
House of Commons, as to Clerics sitting in, 41

 

 

 

 

Procedure :

 

 

; remedies of sequestrators, 12°& 13!

 

G. 3, c. 63.

Property Tax, 18 & 19 Vic., c. 28.

G. 3, ¢.

 

[See 4 G. 4, ¢. 86; 7a. 4, ¢. 72: 3&4
W. 4, 6. 87; 14.& 15 Vic, c. 57, 8. 1.]
) advanced by Commissioners of First

Fruits, collecting of, 7 G. 4, c. 72; 3&
W. 4, ¢. 37.

> levying of, 3& 4 W. 4, ev. 37, s. 65.
Residence of Spiritual Persons, 5 G. 4, v. 91.

 

5 augmenting small, 23 & 24 Vic., v. 72. | Residences, 14 & 15 Vic., ¢. 73.
: Sites,
4

[See 53 G. 3. c. 66; 14 & 15 Vic, ec.
71, 72; 21 & 22 Vic., ¢. 59.]
Temporalities.
[See4& 5 W.4,c.90;6 & 7 W.4,¢.
99; 3& 4 Vic. v. 101; 6&7 Vic., c.
57; 17 & 18 Vie. c. 11; 18 & 19 Vie.,
c. 28; 23 & 24 Vic., c. 150.)
Spiritual persons not to trade, 5 G. 4, ¢. 91.
Subscriptiou by clerics, 28 & 29 Vic., e. 122.
Tithes, compensation for, 1 G. 4, c. 40.
, Composition for a limited time, 3&4
W. 4, v. 100.
See” 1&2 Vic., c. 109.]
, Compositions abolished : Rent-charges
substituted. [1 & 2 Vic., c. 109; 2 & 3 Vie.,
c. 8; 3 & 4 Vie, c. 18; 4 & 5 Vic, c
5, 37.]
, Lessees of rent-charge may deduct
part uf poor-rate from rent, 11 & 12 Vic.,
c. 80.
[See 14 & 15 Vic., c. 74.]
, Distribution of tithe fund, 2 & 3 Vic.,
Ui
, Recovery of arrears, 4 & 5 Vic., cc. 5,

 

 

 

 

 

 

, Leases of, to bind successors, 3 G. 4,
c. 125.
[Se3 &4W.4,¢.87;4&5W.4c¢.
90; 6&7 W.4, 99; 1& 2 Vie, ec.
109.]

Tithes, to relieve owners of, 1 & 2 Vic., c. 109.

, Recovery of.

[54 G. 3, ¢. 68; 5 & 6 W.4,¢. 74; 14
& 15 Vie, ¢.57,8.1;2&3 W. 4,
c. 41; 3&4 Vic. c. 100, s. 9.]

, Sequestrators may sue for, 12 & 18

Vic., c. 67, s. 2.
Transubstantiation, abolishing Declaration
against, 30 & 31 Vic., c. 62.

 

 
Their Rights, &c.

United Church, repealing Statutes as to Irish
branch of, 14 & 15 Vic., ¢. 71.

Valuation of Ecclesiastical Property, 11 & 12
Vic., c. 80; 14 & 15 Vic., c. 74.

, Property and Income Tax to be de-

ducted, 18 & 19 Vic., c. 28.

 

I. Ecoresrastican Persons—ruerr Ricuts,
Dotizs, &c.
1. In general.
2. In respect to Canons and Church Govern-
ment.

 

II. Estate BeLoncing T0.—RESPECTING
Cuurcu Lzaszs.
1. In general. :
2. Purchases under the Church Temporali-
ties Act.

 

TIL. Apvowson—PRESENTATION—SUITS CON-
CERNING THEM.

 

IV. Stmony—Resienation Bonps.

 

I. EccigstasticaL PERSONS: THEIR RIGHTS,
Dutiss, &c.
1. Generally. ;
2. In respect to Canons and Church Govern-
ment.

 

I. 1. Ecclesiastical Persons in general; their
: Rights, Duties, &c.

1. For injuries done to the church or church-
yard by the incumbent, the Ecclesiastical
Court is the appropriate jurisdiction to which
to apply for remedies; and, unless in cases
where an irreparable injury is about being
done, this Court will not interfere by injunc-
tion —Earl Fitzwilliam v. Moore, Flan. & K.
287; 31 E.R. 615. (R.)

2. The rector of a parish, within which
there is not any house of residence belonging
to the benefice, and who, by license of his
Bishop, resides at a distance from the parish,
but not in a house allowed by the Bishop as
the house of residence thereof, is not entitled
to the allowance for the rent of a residence
given by the 3 & 4 W. 4,:c. 37, s. 20 — Eccles.
Commrs. of Ireland v. Delmege, 9 I. E. R. 117;
8 Jon. & L. 825. (C.)—[Affg., 8 I. E. R. 236.]

3. The trustees of a chapel, not endowed
within the 11 & 12 G. 3, c. 16, applied accord-
ing to the trusts of the deed the sacramental
and other collections to the maintenance of
the chapel and the payment of the chaplain,
&c., for some years, without the interference
of the rector of the parish, who at last, along
with the churchwardens, filed a bill for an
account of the sums received by the trustees,
and an injunction to restrain them from ap-
plying the collections. Pending the suit, the
rector proceeded before the Archbishop, and
had the chaplain’s license withdrawn, in con-
sequence of which the chapel was closed. The
Court, although of opinion that the collec-

[ECCL. PERSONS.]

 

Generally. 243

tions belonged to the plaintiffs for the benefit
of the poor of the parish, refused an ac-
count against the trustees, who had acted
according to their trusts, and the injunction,
as the plaintiff had rendered it unnecessary

by his proceeding before the Archbishop.

Such a suit should be by: information and
not by bill—Magee v. Bishop of Cashel, 9 I.
E. R. 319. (C.). hte ,

4. Quere—Whether nuns who have vowed
poverty and obedience are capable of acquir-
ing property ?—M‘Carthy v. M‘C., 9 I. E. R.
620. (C.)—[See 1 H. L. Cas. 703.]

5. Dilapidations not arising from want of
annual and necessary repairs, and which arose
without the vacating incumbent’s wilful de-
fault, are to be charged not, upon the vacato
but upon the benefice.—The Bishop of Lime-
rick v. Stephenson, 11. Jur. N.S. 113. (P.C.)

6. The impropriate rectory and vicarage of
K. was forfeited to Wm. III. by the attain-
der of the then patron. An Act of y & 12
W. 3 empowered trustees to convey all im-
propriate forfeited rectories, with the tithes,
obventions, glebes, advowsons of vicarages,
and all other things thereto belonging, to
such persons, and their heirs, as the Bishops
of the respective dioceses should nominate,
in trust for twenty years, to apply the profits
for rebuilding and repairing the. parish
churches; and afterwards for the perpetual
augmentation of such small rectories and
vicarages as the Lords Justices, &c., with
the consent of the Bishop of the diocese,
should appoint.

By deed, dated 20th March 1702, the trus-
tees conveyed the forfeited rectories, &c., in
pursuance of the Act; and by deed, dated
22nd March 1802 (reciting that Act), the
Lords Justices, with the Bishop’s. consent,
appointed the profits of the rectory of K.,
with the tithes, &c., for the augmentation of ©
“the vicarage of St. James, Dunbrody.”

The 32 G. 3, c. 12 (reciting the first deed,
and that the 20 years were ended), enacted
that the several rectories impropriate, with
the tithes, &c., and all things belonging there-
to which were by that deed directed to be
annexed to the rectories and vicarages there-
in mentioned, were to be deemed and taken
to be for ever appendant to the said several
rectories and vicarages, and to the advowsons
thereof. St. James, Dunbrody, and Ratliroe
was an impropriate curacy. ;

In 1830, the appellant was instituted and
inducted into the rectory and vicarage of K*
On the same day and nomination, though by a
different instrument, he was licensed to the
impropriate curacy of St. James, Dunbrody,
and Rathroe. He was afterwards inducted
and admitted into the benefice of Dunboyne
without any faculty, it being a benefice with
cure of souls. Held, that the word “vicar-
age” included the impropriate curacy; and
that by the Acts a quasi union had been
effected of the benefice and vicarage of K.,
and of the impropriate. curacy of St. James,
Dunbrody, and Rathroe.
244 Their Rights.

That the appellant’s acceptance, without
dispensation of the benefice of Dunboyne,
rendered vacant the benefice so united as
above.

That the sentence of the Court below ought
in terms to have declared of what the union
or benefice of K. consisted.

That, by reason of the obscurity in the title,
and the length of time since the appellant’s
acceptance of the living of Dunboyne, and
during which he had held it without disturb-
ance, no costs against him should be given.

[Hayes, J., and Dr. Andrews dissented
from the 1st, 2nd, and 8rd rulings. ]

Semble—That, independently of the sta-
tutes, the impropriate curacy, having been
endowed or augmented as aforesaid, would be
a benefice within the meaning of the canon
jaw.— Auchinleck, appellant, Office of the Bishop
of Ossory respondent, 6 I. Jur. N.S. 205. (Ct.
Delegates.)

1. An inhibition, signed at the Bishop’s de-
sire, by the V.-G. of a diocese, and under the
seal af the Consistorial Court, forbidding a
strange clergyman preaching in the diocese, is
in fact the inhibition of the Bishop; and is
not a judicial act requiring a previous citation.
A bishop of one diocese has the power to in-
hibit, at his pleasure and without cause as-
signed, a beneficed and licensed clergyman of
another diocese, from officiating or preaching
in his diocese, without his license, though the
clergyman has the incumbent’s leave to preach
in his church. A license to serve a cure in
one diocese determines by the curate giying
up the cure, and leaving the diocese wherein
he was residing. A usage of clergymen of
different dioceses to occasionally assist one
another, and preach without the bishop’s li-
cense, is of no avail against his inhibition.
Bishop of Down v. Miller, 11 I. C. R., App. 1.
(Consist. Ct.)

2. Alms collected, whether at the offertory
or during divine service, in a proprietary
chapel, not having a district assigned to it,
belong as of right to the rector of the parish
in which the chapel is situated, to be disposed
of as he and the churchwarden shall direct ;
and that notwithstanding Napier’s Act, 14 &
15 Vic., c. 72.—Dowdall v. Hewitt, 8 I. Jur.
N.S. 353. (Consist. Ct.)

 

I. 2. Respecting Canons and Church Government.

8. The parish of K. was appropriated to
the deanery and chapter of the cathedral,
which consisted of a dean, precentor, chan-
cellor, treasurer, and four canons. The ca-
thedral church was the parish church of K.,
and divine service had been from time imme-
morial regularly performed in the cathedral,
and the observance and offices of religion had
been performed by the members of the corpo-
ration, or by a stipendiary curate, or one of
the canons, without the license of the bishop,
and paid out of the corporate funds. There
never had been a vicar of the parish. The
dean and chapter were seized of lands in
and of the tithes of the parish, which formed

[ECCL. PERSONS.]

 

As to Canons.

the funds whereby the fabric of the cathe-
dral church was upheld, and all matters re-
quisite for the performance of divine service
had been supplied, and the stipendiary curate
and servants of the corporation had been
paid. The earlier records of the corporation
had been lost, but it appeared that for 200
years the surplus revenues had been divided
among the eight members of the corporation
in particular proportionate shares. Held, that
the canons as individual members of the cor-
poration had not the actual cure of souls
within the parish of K.; and that the Lord
Lieutenant and Privy Council had jurisdic-
tion to order a suspension of the canonries,
under the Church Temporalities Acts (4 & 5
W. 4, ¢. 90, and 6 & 7 W. 4, c. 99).—Held,
That the share of the revenues which the
canons had received from time immemorial
in common with the rest of the chapter was
emolument belonging and appertaining to
the suspended canonries, and as such vested
in the Ecclesiastical Commissioners under
these Acts—Ecclesiastical Commrs. v. Dean
and Chapter of Kildare, 71. C. R. 144. (R.)—
[Affd. 8 I. C. R.93. (C.A.)]

4, An inhibition signed by the Vicar-Gene-
ral of a diocese, and under the seal of the
Consistorial Court, forbidding a clergyman to
preach in the diocese, is in fact the inhibition
of the bishop; and is not a judicial act re-
quiring a previous citation.

A bishop has the power to inhibit, at his
pleasure and without cause assigned, a bene-
ficed and licensed clergyman of another dio-
cese from officiating or preaching in his dio-
cese, without his license, though the inhibited
clergyman has the incumbent’s leave to preach
in his church.

‘A license to preach in a diocese termi-
nates by the institution into, and license in
another.

A usage of clergymen of different dioceses
to occasionally assist one another, and preach
without the bishop’s license, is of no avail
against his inhibition—Bishop of Down, C.
and D. v. Potter, 6 I. Jur. N. 8. 197. (Consist.)

5. Officiating and preaching to the inmates
and officers of a district Co. Lunatic Asylum,
without the consent of the incumbent of the
parish, is an infringement of his rights as
such.

A chaplain to such a lunatic asylum is not
included under the word “ officers” in the
statutes authorising the Lord Lieutenant to
appoint such; and a chaplain so appointed
has no right to officiate in such an asylum
without the incumbent’s consent, and the
bishop’s license.—WNelligan v. Jones, 7 I. Jur.
N.S. 39. (Consist. Ct.)

6. In 1836 a parish was, pursuant to 7 & 8
W. 4, c. 48, divided into three separate
parishes, A., B., and C. The patronage of
the original parish belonged to six persons
as joint owners. By a deed of the 10th June,
1851, the several representatives of the six
joint owners, after reciting an intention to
make partition of the advowson, donative,
Their Estate.

and right of presentation, to those three
parishes, mutually covenanted with each
other that two of the six joint owners, their
heirs and assigns, should for ever have the
advowson, donative, and presentation to A.,
as tenants in common for their share (like
covenants as to B. and C.) The deed also
contained mutual covenants that said respec-
tive persons should hold their share of said
rectories, &c., freed and discharged from all
right, &c., of the other parties, and for fur-
ther assurance; but contained no express
grant of any of the benefices.

On the 11th Oct. 1861, the allottees of A.
presented the promovent thereto; the other
patrons did not join in the presentation.
Held, that the deed of 1851 authorised the
allottees of A. to present thereto without the
concurrence of the others; and that its effect
amounted in reality to a composition to ap-
point by turns, though not applying to each
benefice.

Semble — That the covenants and agree-
ments in the deed amounted to a legal re-
lease of the right of the other patrons.

Held, that, after service of the metropoli-
tan’s inhibition on the bishop, the bishop
could not act on a second presentation served
on him after, though dated and executed be-
fore the service.

If the church were litigious the bishop him-
self should issue the writ “jus patronatus.”—
Meredith v. Bishop of Limerick, 71. Jur. N. 8.
246. (Metw. Court.)

 

II. Estate BELONGING TO: RESPECTING
Cuurcu Leases.
1. Generally.
2. Purchases under the Church Temporali-
ties Acts.

 

I. 1. Estate belonging, in general, to Ecclesiastical
Persons.

1. The expenses of repairing the glebe-
house are the first charge upon the profits
of the benefice received by the receiver.—
Sterling v. Wynne, H. & J. 817. (L.E.)

2. A grant of an interest in a benefice is
binding upon the grantor, the 10 & 11 Car.
1, c. 3, Zr, extending only to successors of the
grantor.

A judgment is not per se a lien upon
a benefice, but it is attached upon by a se-
questration.

The sequestration will not by relation give
to the judgment creditor priority over an an-
nuitant who became such after the entry of
the judgment but before the sequestration
issued. Wise v. Beresford, 5 I. E. R. 407; 2
Con. & L. 282; 3 Dr. & War. 276. (C.)

3. To bring a case within the exception in
the 7 & 8 Vic., c. 45, s. 2 (Dissenters’ Chapel
Bill), the instrument declaring the trust, or
some book or other document referred to in
it, must contain in express terms the particular
religious doctrines or opinions, or mode of wor-
ship required or forbidden. A general gift of
money in trust to be applied towards building a

[ECCL. PERSONS.]

 

 

Generally. 245

new meeting-house of the Protestant Dissent-
ing Congregation then of New-row, for the ser-
vice and worship of God in that way—Held, not
within the exception.

So, where the trusts declared were to assist
in supporting and maintaining a gospel minister
of the Presbyterian persuasion, to preach the
gospel to the Presbyterian Congregation where-
of he was a member, meeting for divine worship
in Eustace-street, and to instruct them and
their successors for ever in the true principles
of the Christian religion—Held, not within
the exception.

A congregation professing to be bound by
no human authority, and to be at liberty to
change their belief as often as their judgment
satisfies them they are in error, is not deprived
of the benefit of the Act by the want of fixed
doctrine, and may acquire a right by twenty-
five years’ usage.—T he Att.- General v. Hutton,
71. E.R. 612. (C.)

4, When a statute, in giving a new right,
prescribes the mode of enforcing it, no other
remedy can be pursued. Sums to be repaid
by succeeding incumbents for glebe improve-
ments can be recovered only by distress, &c., as
pointed out by statute 10 W. 3, c. 6; and
though several Acts amending that statute
speak of these sums as charges, none of them
create any claim against the benefice which
can be recovered by bill in equity.

The incumbent of abenefice undersequestra-
tion was liable to repay instalments for glebe
improvements to his predecessor’s executor.
Sums were also ascertained under a commis-
sion as due for dilapidations in the time of the
predecessor, which were to be set off under
statute 12 G. 1, ¢. 10. Semble, the Bishop
could require a moiety of the income received
by the sequestrator to be deducted for the
dilapidations. Semble, the right of set off is
connected with the liability to repay the in-
stalments, which did not apply to the first
year’s income, and therefore no deduction
should be made from it. [Reversing Rolls
decision, 10 I. E. R. 305.]—Brooke v. Horner,
111 E.R. 214. (C.)

[Moneys expended under the statutes for
buildings and other improvements on glebe
lands, and duly certified by the Bishop, con-
stitute a good legal charge on a moiety of the
benefice. But a Court of Equity will not
entertain a suit in respect of such charge,
unless there be special equitable grounds
which call for its interference—Brooke v.
Horner, 13 I. E. R. 272.)

5. A return made by the Registrar of a
diocese in answer to the inquiry of a clergy-
man whose benefice was under sequestration,
enumerating the writs lodged with him, with
the dates of the delivery and the sums due,
though not proved to be made in virtue of his
office, is evidence against the Bishop; and so
also are letters of the Registrar of a similar
character

The applotment book of a parish is not
evidence to prove the value of the benefice in
years previous to the establishment of tithe
composition in the parish.
246 Their Estate.

A suit is sustainable for an account on foot
of a sequestration over a benefice in the
diocese, against the personal representatives of
two successive Bishops and against the present
Bishop, on the allegation of loss to the creditor
by the default of the sequestrator during their
respective bishoprics.

Quere—If a sequestration, not issued until
the levari on which it is founded is out of
return, be void although the benefice was in
the Bishop’s hands under a prior sequestration.
—Hogg v. Garrett, 12 I. E. R. 559. (C.)

1. Under the 3 & 4 Vic., v. 105, s. 22, a judg-
ment is a good charge upon an ecclesiastical
benefice in Ireland; the 13 Eliz. c. 20, not ex-
tending to Ireland, where there is no corres-
ponding enactment.— Winter v. Homan, 6 I. C.
R. 479; 11. Jur. N.S. 399. (C.) [Overuled;
Sweeney v. Fleming, 14 I. C. R. 23; 81. Jur.
N.S. 241. (C.A.)]

2. When lands were not formerly in the pos-
session of the dissolved monasteries, unity of
possession of the lands and tithe will not
extinguish the tithe.

The petitioner derived title under a lease for
lives renewable for ever of lands, and the
tithes thereof, made in 1700. The Court re-
fused to declare the lands tithe free (on a
petition presented under the 1 & 2 Vic. ¢.
109, s. 16), though no tithe had been paid since
1700, there being no proof that the lands were
Abbey lands, and no notice of the proceedings
having been given to the reversioner.—Denny
y. Devonshire, 11. C. R. 401. (R.)

8. An incumbent in 1840, by deed, charged
his benefice with an annuity, and covenanted
that any benefice to which he might be preferred,
should, immediately upon his becoming en-
titled thereto, stand charged with the annuity.
In August 1840 he was promoted to a new
benefice. In Oct. 1840 a judgment was reco-
vered against him by a creditor, who obtained
sequestration of the new benefice. In 1849
the annuitant filed a bill to raise the arrears
of his annuity by a receiver. That bill was
taken as confessed against the incumbent, and
was answered by the sequestration creditor.
Held, that the annuity attached upon the new
benefice at the moment at which the incum-
bent became entitled thereto, and had priority
over the claim of the sequestration creditor ;
and that this was so, whether or not, at the
time of the rendition of the judgment, he had
notice of the annuity and covenant.

That the annuitant was entitled to have a
receiver appointed over the benefice upon an
interlocutory application, made for that pur-
pose previously to the hearing.—Battersby v.
Homan, 2 1. C. R. 232; 21. Jur. 121. (C.)

4. James I. by letters patent granted the
rectorial churches and chapels of T. and K.,
and two parts of the tithes and altarages of
the rectory or chapel of C., parcel of the pos-
sessions of the late abbey or monastery of T.,
the grantee repairing and maintaining the
chancel of the churches, rectory. and chapels
at his cost from time to time for ever, and

[ECCL. PERSONS.]

 

Generally.

supporting annually, and from time to time
paying the stipend of the curates and all other
the rents and services issuing or payable out
of or from the premises. In 1641 the church
of K. was destroyed, and was not afterwards
rebuilt. By an order of the Lord Deputy and
Council in 1678 the parish of K. was united
with the parish of A. In 1855, the Bishop of
the diocese, by deed executed under the 14 &
15 Vic., c. 72, erected the ancient parish of K.
and a part of the parish of A. into a new dis-
trict or parish, to be called by the name of the
parish of K., and constituted the district or
new parish of K. into u perpetual cure, and
declared that the curate thereof and his suc-
cessors should be perpetual curates thence-
forth and for ever of the new parish, and
appointed a salary for the perpetual curate.
In 1856 a new church was erected, which was
situate in the old parish of K. Held, that the
curate of the new parish of K. was not entitled
to any stipend from the owner of the tithes of
K

That the owner of the tithes was not bound
to repair the chancel of the new church of K.

A solicitor, on as. d. ¢., brought into
Court a deed, under which the respondents
claimed as purchasers for value, and on which
he did not claim any lien. He refused, by his
client’s instructions, to produce the deed,
which he had in Court, because a large amount
of money was due to his client by the princi-
pal respondent.

Semble—That secondary evidertce of its con-
tents was not admissible—The Att.-Gen. v.
Ashe, 10 I. C. R. 309. (R.)

5. Churchwardens alone have, subject to
the ordinary’s control, the regulation of the
pews in a parish (even though it be a cathe-
dral) church. Every parishioner has a right
to a sitting, but not to a pew. Non-parish-
ioners have not aright to a pew or a sitting.
Rights to pews annexed by prescription to
messuages cannot be severed from the occu-
pancy of the messuages.

In a cathedral, not being a parish church,
Semble, there can be no allocation of seats,
except by the Bishop—ZJn re Pews of Derry
Cathedral, 8 I. Jur. N. 8.115. (Consist.)

. 6. A judgment is not made a charge upon
the Ecclesiastical Rectories of the Crown by
the 3&4 Vic., c. 105, s. 22.—[ Winter v. Homan,
61. C. R. 479, overruled. ]—Sweeny v. Fleming,
141.C. R. 23; 81. Jur. N. 8. 241. (C.A.)

7. Dilapidations resulting from natural
decay charged on the benefice, and not against
the executors of the late dean.

Contra, as to dilapidations which resulted
from wilful default.

Folding-doors introduced into the wall of
the deanery parlour is waste. The cost of
their removal and of the restoration of the
wall was charged against the executor of the
dean, the value of the doors being allowed
or.

The deanery gate-house was, with the assent
of the dean and chapter, removed by the late
dean without any faculty. Held, that such
Purchases by, under

removal was waste, and the necessary expense
of rebuilding it was charged against the dean’s
executor.—In re Dilapidations of the Deanery-
house, St. Patrick's, Dublin, 10 I. Jur. N.S. 38.
(Consist.) ;

II. 2. Purchases under the Church Temporalities
Acts.

1. A., tenant of lands under the see of D.,
by lease of 7th April 1826, demised to B., his
executors, &c., premises for 21 years, with a
t. g. covenant for renewal, and with a covenant
on the part of B. against carrying on certain
trades, &c., on the premises. A. having pur-
chased the fee in the lands under the Church
Temporalities Acts, B. offered to pay his pro-
portion of the purchase-money, and required
a conveyance of the perpetuity. Held, that B.
was not entitled to have a conveyance of the
perpetuity discharged of the prohibitory clauses
contained in the lease.—wLockrell v. Dolan,
Long. & T. 282; 31. E. R. 552. (H.E.)

2. The Lord Primate demised part of see
lands to §., his executors, &c., saving, except-
ing, and reserving out of the demise to the
Primate, his successors and assigns, all game
that should at any time during the demise be
on the premises; with liberty for the Primate
and his successors, his and their appointees,
but for no other person, to enter on the pre-
mises, and hunt, hawk, fish and fowl; and
also saving, excepting, and reserving to the
Primate, his successors and assigns, all royal-
ties, and all eyries of great hawks, and all
mines, minerals, coals, and quarries, and all
timber trees, with liberty to enter and cut
down the trees, and carry away the same. §.
sub-demised part of the lands to C., with az.
qg. covenant for renewal, “excepting and re-
serving all such exceptions and reservations
as were excepted and reserved in the lease of
said lands and premises from the Primate to
8.;” and afterwards, under the Church Tem-
poralities Acts, obtained from the Primate a
conveyance of the fee of the lands, which did
not contain any exceptions or reservations
other than of the rent thereby reserved. Held,
that S. was entitled, under the Acts, to a con-
veyance of the fee in the lands, without ex-
cepting or reserving thereout the matters and
things excepted and reserved by his lease
from the Primate. .

That the sub-tenant was entitled, in like
manner, to a conveyance of the fee in the
lands in his sub-lease, without excepting or
reserving thereout the matters and things
excepted and reserved by the lease from the
Primate to S.—Clarke v. Staples, 5 I. E. RB.
246. (H.E.)

3. When a sub-tenant, holding only part of
the land originally demised by the see, wishes
to purchase the fee (the landlords interme-
diate between him and the see refusing to
purchase), and the fines have not been regu-
larly paid, the amount of the fines to be paid
before thé purchase is completed is to be cal-
culated according to the value of the part held

[ECCL. PERSONS.]

 

Ch. Temp. Acts. 247

by the purchasing sub-tenant, irrespectively
both of the value of the land originally de-
mised by the see, and of any covenant to
renew at a lower rate of fine entered into with
the sub-tenant by hisimmediate landlord.

In such case the tenant is entitled to a refer-
ence to the Master, to ascertain what is pay-
able for fines; but unless it be a difficulty
arising from the construction of the Church
Temporalities Acts, he will have to pay the
costs, at least up to and inclusive of the, costs
of the hearing.— Betty v. The Ec. Commissioners,
2 Con. & L. 520. (C)

4, A previous renewal by the tenant of a
see, to his sub-tenant, recited the payment of
interest on the rencwal fines, and contained a
t. g. covenant for renewal, besides a covenant ;
by the tenant to pay what fine or fines the
lessor should pay to the see. Held, that the
sub-tenant was bound to pay interest on the
renewal fines on obtaining the perpetuity,
under the 6&7 W. 4, c. 99, s. 1.

In order to entitle a tenant of an ecclesias-
tical lease to a renewal under any of the sta-
tutes, 3&4 W.4,¢. 387; 4&5 W. 4, &. 90; or
6&7 W. 4, c. 99, he must have, or be entitled
to a fully renewed lease.

Semble—Therefore, interest on renewal fines
is payable by the sub-tenant, on obtaining a
perpetuity under the 6&7 W.4, c. 99, s. 1.

Semble—Interest is customarily payable on
renewal fines by sub-tenants of, ecclesiastical
leases with «% g. covenants for renewal.—
Brabazon v. Lord Lucan, 12 I. E, R. 432. (R.)

5. The 3&4 W.4, c. 87, enacted that the
Ec. Commissioners should make or cause to
be made a valuation of all livings, &c., from
which they were to deduct all rents, synodals,
proxies, and other charges, and levy there-
from a yearly tax computed and imposed on
such valuation, and to be paid on the 1st July
and Ist Jan.; and that, if the tax should be in
arrear and unpaid more than a reasonable time
after demand, the Commissioners might apply
to the Court by petition in a summary way for
relief in that behalf. Held, that the Court
had not power to set aside or alter the valua-
ation; and, the tax being fixed in respect of
the valuation, was bound to make an order
for payment.

Quere—Whether poor-rate, which was im-
posed by a subsequent statute (1 & 2 Vic., e.
56), is a charge which should be deducted
from the valuation.

The 11 & 12 Vic., v. 80, reciting that doubts
have arisen whether the Commissioners were
authorised to allow any sum for poor-rate,
enacted that it should be Jawful for the Com-
missioners to deduct the poor-rate from any
valuation made or to be made. Held, that the
Act was not declaratory, and did not apply to
. tax made on a valuation and due before the

et. :

Held also, that the tax was due on the gale
day, though no demand was made.—Ecclesias-
tical Commissioners v. Armstrong, 12 I. E. R. 445.

@)

6. Lands held under a church lease were
248

devised in trust to pay the head-rent and re-
newal fines; and, after payment thereof, to
suffer certain annuitants to receive annuities
thereout; and, subject thereto, to a devisee,
who purchased the fee under the Church
Temporalities Act, and gave a mortgage for
the purchase money. Held, that the an-
nuitants were not bound to contribute to the
interest on the mortgage.—Hilhouse v. Tyn-
dall, 13 I. E. R. 209. (C.)

1. F., tenant of lands belonging to the
see of C., demised them for a chattel interest
to R., with a ¢. g. covenant for renewal. R.
died intestate, leaving two infant daughters
him surviving. In 1838 F.’s interest was,
under the 3 & 4-W. 4, converted into a fee.
D., acting under a void grant of administra-
tion of the goods of R., obtained from H.
a conveyance in fee of R.’s interest, under the
6&7W. 4, c. 99. R.’s daughters died with-
out attaining their age. Held, that D. was
seized of the legal estate in the lands, in
trust for the personal representatives of the
daughters of R.—Campbell v. Ross, 71. C. R.
222. (C.)

 

Tl. Apvowson: Presentation: Suits
CONCERNING THEM,

2. Injunction granted to restrain an Arch-
bishop from collating by way of lapse to a
deanery, pending a suit in the Consistorial
Court respecting the presentment by the
chapter—Daly v. Archbishop of Dublin, Fl. &
K. 263. (R.)

IV. Simony: Resignation Bonps.

 

EFFECT OF ACTS, &c.

— Of Proof, as an election to come in under
Bankruptcy, or to take remedy at Law.
See Bankruptcy, XIII.

— Of Execution of Power. See Power, I.

— Of Abatement. See Practice, Asats-
MENT, I.

— Of Answer. See Practicr, ANswer.

— Of Exceptions to Answers. See Practice,
ANSWER.

— Of Appeal. See Practice, APPEAL.

— Of Appearance. See Practice, APPEAR-
ANCE.

— Of Attachment. See Practice, Attacu-
MENT.

— Of Amending Bill.
AMENDMENT OF.

— Of Dismissal of Bill.

See Practice, Butt,

See Practics, Dis-

MISSAL
— Of Contempt. See Practice, Contemp.
— Of Discharge from Contempt. See Prac-
TICE, ibid.
— Of Fraud, as to Costs. See Practice,
Costs.

See ibid.
See ibid.
See

— Of Tender, as to Costs.

— Of Tender or Payment of Costs.

— Of Taxation, or want of Taxation.
Practice, Costs.

— Of Decree. See Practice, DECREE.

 

[ECCLESIASTICAL PERSONS.—EJECTMENT.]

— Of allowing Demurrer.
MURRER.
— Of overruling Demurrer.

See Practice, DE-

See ibid.

— Of reading Answer as Evidence. See Prac-
TICE, EVIDENCE.
— Of Commission to Examine. See ibid.

— And extent of injunction.
Inguncrion.

— Of Amendments. See ibid.

— Of Settlement and Signature of Master’s Re-
port. See Practice, Mastsur, Rere-
RENCE TO.

— Of Orders. See Practicn, ORDER.

— Of allowing or overruling a Plea, See Prac-
TICE, PLEA.

— Of Sequestration.
TRATION.

— Of taking Possession.
PURCHASER.

— Of Notice to Purchaser.

See Practice,

See Practicr, Srques-
See VENDOR AND

See ibid.

 

EJECTMENT.

See LanpLorp anp Tenant—Lease—
Practice, Ingunotion.

3. The conuzor of a judgment, being seized
in quasi fee, beeame by deed before 1840 ten-
ant for life of the lands, and created charges
thereon. The judgment creditor afterwards
advanced moneys to save the lands from
eviction, and filed a bill for sale during the
conuzor’s life. Under the Court’s order he
made further advances for rent. Held—that
he, as a salvagor, was entitled to a sale of the
quasi fee, though as a judgment creditor he
could not have a sale against the remainder-
man or creditors before 1840.—Fetherstone v.
Mitchell, 11 I. E. R. 35, (C.)

4. A sub-tenant, having redeemed his land-
lord’s interest by advances for head-rent,
filed a bill to sell that interest; and after-
wards made further like advances. Held—
that these were a first charge on the mesne
landlord’s interest prior to earlier incum-
brances, and that the salvagor was entitled
to a sale.—Locke v. Evans, 11 I. E. R. 52. (E.E.)

 

ELECTION.
— Against Joint or Separate Estate. See
Banxrvuptcy, XIII.
— By Assignees to take or to reject Lease. See

Banrurptcy.
— To come in under Fiat, or to take remedy at
Law. See Banxrurtcy, XIII.

See Practicz, ELEcTIon.

 

I. In wHat Cases.

. Of Widow, as to dower, thirds, §c.

Of Heir, as to estates descended.

Of Issue in tail.

. Between testamentary, or between testa-
mentary and other gifts.

. Other cases under Wills—general doctrines.
. What language or gift is sufficient to put
@ party to elect, and by what instru-
ment.

Orn RODE

 
By Widow.

I. BerwEen Dirrerrnt Ricuts anp Reme-
DIES.

 

II. In orver cases.

 

IV. WHar AMOUNTS TO AN ELECTION.

 

V. How, BY WHOM, AND WITHIN WHAT TIME,
AN ELECTION WILL BE ENFORCED, OR
MUST BE MADE.

 

VI. ErFEcT OF—HOW ACTED UPON—NATURE
oF RELIEF GRANTED.

 

I. 1. Widow’s election respecting dower, thirds, §c.

1. A testator made ample provision for his
wife by will, giving her an annuity charged
upon his general estates, and devising to her
a portion of his fee-simple, and then disposed
of all the rest of his property, real and per-
sonal, giving trustees a power to lease it all.
Held, that the widow was bound tv elect,
and was not entitled both to dower and the
testamentary provision.—Hall v. Hill, 4-1. LE.
R. 27; 1 Dr. & War. 94; 1 Con. & L. 120.
(C.)

2. V. having contracted to sell part of his
fee-simple estates, devised all his real and
personal property to trustees, whom he direc-
ted to complete the contract with the pur-
chaser ; to sell, and convert into money all
his real and personal estates ; and, out of the
interest of the moneys produced by the sales,
to pay his wife an annuity during her life.
He likewise empowered them to lease such
parts of his real estate as should not be sold.
Held, that the widow was bound to elect be-
tween her dower, and the benefits given her
by the will—O’Hara v. Chaine, 1 Jon. & L,
662. (C.)—[See O'Hara v. Chaine, § I. E.R.
365. (R.)]

8. Marriage articles, containing a bare co-
venant that if the husband should die in the
wife’s lifetime, without leaving issue, she
should be entitled to one-half of whatever
real or persunal estate he should die seized or
possessed of, and cuntaining no provision in
the event of his dying leaving issue; JZeld,
from the general intent apparent on thein, to

bar the widow of her dower out of the remain- |

ing moiety of the husband’s estates. ‘The ef-
fect of election against a will is to give the

property which was devised to the party elect- |

ing to the devisees disappointed by the elec-
tion; it never goes as if undisposed of by

the will. — Hamilton v. Jackson, 8 I. E. B.!

195; 2 Jon. & L. 295. (C.)

4, The husband, by will, devised all his estate
and interest in the house and lands of T. (sub-
ject to the charges after mentioned) to his
eldest son A. for life, on A.’s decease, to all his
sons, in such shares as he (A.) should appoint;
in default, of such appointment, in equal
shares among such sons. There were similar
limitations to the testator’s son B. and his

[ELECTION.]

By Heir. 249

sons, and C. and his. sons, and over, in each
case, subject as before. Then followed a
power to A., when he should be in pos-
session of the lands of T. to grant to any
wife £500 per annum for her jointure, and in
bar, or without bar, of her dower, and to cre-
ate a term for securing it. There was a
power for A. to charge the lands with £5000
for his daughters in a certain event, and to
create a term for the purpose. The testator de-
clared that it should be lawful for the devisees,
“according as they or any of them shall be in
possession of the estate of T.,to demise or lease
all and singular, or any part” thereof, for any
term not exceeding twenty-one years.- After
creating a charge of £3000 on the house,
lands, furniture, &c., at T., for his daughter,
and bequeathing to his wife, “in addition to
the sums already settled on her,” an annuity
of £50 during her life, and charging that an-
nuity and his private debts (not trade debts)
on the house, lands, furniture, &c., at T., and
directing his son A. to pay the head rent of
the lands,—he cuncluded his will by saying,
“TJ hereby ratify and confirm the settlement
made on my wife.” J/eld, that the widow
must elect between her dower and the annuity
ee (oo y. Wilson, 13 I. E. R. 168.

 

I. 2. Of ITeir as to estates descended.

5. An heir-at-law of heritable property in
Scotland, being also devisee of real estate in
Ireland under a will, executed by the testator
, When doiniciled in Ireland, and attested ac-
‘cording to the law of Ireland, must elect be-
tween the heritable property in Scotland, and
the benefits conferred on him by the will.—
DM‘ Cally. M‘C., Dr. Rep. t. Sugden, 283 ; 2 Con.
& L. 184. (C.)

6. In 1804, W. conveyed premises whereof
he was seized in two several streets in D., to the
Commissioners of Wide Streets, for £10,579 ;
they paying W. interest thereon at £5 per
cent., being £528 a-year; until the reconvey-
ance hereinafter mentioned. The Commis-
sioners covenanted that they, so soon as any
of their ground should be set, so that the rent
payable thereout to them should suffice to pay
the £528 a-year, would grant and convey unto
W., his heirs and assigns, so much of the
ground so to be demised, and the rents and
reversions incident thereto, as would amount
{to that annual sum. In 1818, W. devised
“all the rest, residue, and remainder of” his
“ property, real, freehold, and personal ””—the
: personalty amounted to £100,000—which he
{should “die possessed of, or entitled to,” to
his two sons V. and J., and their heirs, &c., in
1 equal proportions. In 1823, the Commis-
sioners, pursuant to the covenant, conveyed
premises, amounting in yearly value to £528,
to W., his heirs, &c. - In 1826, W. died; leav-
ing V. and J. surviving. Held, that, since the
will was made before the Wills Act, the real
estates in those reconveyed premises were not
operated upon by the will; and that, respect-
ing them, W. died intestate. That the heir-
at-law was bound to elect whether he would

32

 
250 Between Testamentary

take under, or against the will Sweetman v.
S., 111. Jur. N. 8. 318. (C.)

 

I. 3. Election by Issue wn Tail.

1. The doctrine of election applies to a re-
mainder expectant on an estate tail, as well as
to immediate interests. A testator devised
fee-simple lands to H.; and the lands -f C.,
of which he was seized in tailtoM. H.. on
the death of the testator, became entitled in
remainder expectant on estates tail, in his two
brothers, to C. Held, that H. was bound to
elect.

After the death of his brothers, H. entered
into receipt of the rents of all the lands, in-
cluding C.; maintained M.; paid an annuity
charged on C., of which he executed a disen-
tailing deed; and mortgaged all the lands.
Held, on the authority of Pudbury v. Clarke
(2 MN. and Gor. 298), that he had not elected.
[Bor v. B. (8 Br. P. C. 178), and Stewart v.
Henry (Vern. & Sc. 49), disapproved of.]—
Morgan v. M.,.4 1. C. R. 606. (C.)

 

I. 4. Election between Testamentary, or between
’ Testamentary and other Gifts.

2. Marriage articles recited that some of the
lands specified therein were held in fee and
for lives, and that other were leaseholds. The
settlor thereby agreed to settle the lands on
himself for life; remainder to his first and
other sons, &c., in strict settlement ; that they
should be charged with a jointure of £100 a-
year for his wife; and that £2000, his wife’s
fortune, should on his death be divided
among his children, subject to his appoint-
ment. He afterwards acquired property, and
purchased other estates.

By will the settlor devised “alJ his real and
personal estates,” subject to debts and legacies,
to his eldest son for life ; remainder to his first
and other sons, &c.; gave £100 a-year to his
wife in consideration of the jointure provided

by the articles; bequeathed to his younger ;

children sums. exceeding in amount £2000,
with directions as to maintenance and accu-
mulation, &c.; and appointed his eldest son
residuary legatee. /feld, that the children
should take the settled property under the
articles, and the acquired property under the
will, as there was not any inconsistency to
raise an election; and the will was not to be
deemed an execution of the articles—Anoz v.
K., Beat. Rep. 501. (C.)

8. By V.’s marriage settlement £1000 was
secured out of his property for his wife during
life; remainder to their issue. The plaintiff
was their only issue. V., by will, gave his wife
the interest of £2000, expressly in addition to
her claims under the settlement; and £5000,
to the plaintiff (without referring to the settle-
ment) on her attaining 21, or day of marriage.
Held, that she could not obtain both sums;
but must elect between the settlement and the
will—O’ Neill v. Hamill, Beat. Rep. 618. (C.)

4, Upon A.’s marriage lands were settled to
his‘wse for life; remainder to trustees for 500
years; remainder to A.’s issue male. The

[ELECTION.]

 

and Gifts.

trusts of the term were to raise, if there were
two or more daughters, but no issue male,
£6000 for their portions, payable in such shares
as A. should appoint; in default of appoint-
rent, share and share alike. The settlement
provided that any advancement made by A. to
any daughter, should according to its amount
be deemed a satisfaction of the portion, unless
A. by writing under his hand declared the
contrary. The sole issue of the marriage were
three daughters, E., S., and I.

A. contracted to sell the estates. To pro-
tect the purchaser against the contingency of
there being sons, £71,0U0 of the price was al-
lowed tu remain a charge upon the lands.
Afterwards, A., on IL.’s marriage, assigned
£20,000, of the £71,000, to trustees, as her
portion, not payable till his death. After-
wards, on S.’s marriage, A. covenanted to
appoint and assure that £20,000 should be
paid to trustees out of the £71,000; and, if it
proved deficient, out of his personalty. He
bequeathed to his executurs £20,000, upon
trust to pay the interest thereof to L, who was
unmarried, for her separate use, for life, &.
Held, that I. must elect.

I. elected to take under the settlement;
Held, that she was, therefore, entitled to the
whole £6000.—Brownlow v. Eurl of Meath, 2
I. E. R. 383; 2 Dr. & Wal. 674. (C.)

5. A., upon the marriage of his daughter B.,
in 1794, granted to trustees an annuity of
£100, out of part of the lands of C., in trust for
her husband for life, after his death for B., for
her life, if she survived her husband; after
death of the survivor, for the children of the
marriage, in such shares as the parents, &c.
In January 1813, A. madehis will. After mi-
nutely specifying the property of which he was
possessed, the head rents and profit rents of
each, he devised all these to trustees, “to, for,
and upon the several trusts and purposes
hereinafter mentioned, and none other; and
after payment of the head rents payable there-
out” to apply same to the trusts thereinafter
mentioned. He then directed them to
pay £100 a-year to his wife, and subject
thereto, gave B. an annuity of £50 a-year
for life; and upon the decease of his wife, a
further annuity of £50 a-year; “said two an-
nuities to B. for her sole and separate use,
free from the control of her said husband ;”
and, subject to the “head rents,” and “to
these two annuities to his wife and daughter,”
he disposed of the rest of his property without
making any allusion to the charge upon it
under the deed of 1794. He died, leaving B.
and her husband surviving. The latter having
died, and a party who became entitled to some
of the lands charged with these two annuities
having refused to continue to pay both, she
filed a bill toraise the arrears. Held, that she
was bound to'elect.— Graham v. Thynne, 2 I. E.
R. 402. (4.E.)

6. The doctrine of election does not apply
when the testator leaves nothing of his own
property.—M‘Donnell v. M‘D., 2 Con. & L.
481; 4 Dr. & War. 376. (C.)
Between Testamentary

1. If an infant have conflicting titles under
a settlement and under a will, he may be put
to his election at once, notwithstanding his
infancy, as the Court will elect for bim.—
Morrison v. Bell, 51. E. R. 354. (R.)

2. By settlement, £3000 was limited among
the children of S., as he should appoint; if
but one child, to that child absolutely. 38.
had but one child, L., and by will beqeathed
the £3000, and also £6000 of his own money
for L.’s benefit, subject to various restric-
tions, under which the plaintiff claimed. L.
was made a ward of Court, and a bill was
filed to ascertain her rights under the settle-
ment and will, but was not proceeded with.
She came of age, and, by articles on her mar-
riage purporting to be in execution of the
trusts of the will, the whole £9000 was settled
to uses partly inconsistent with it—Held, that
the articles purporting to be in pursuance of
the will, and to settle the whole £9000, and
having been executed by L. with full know-
ledge of her rights under the settlement, she
had elected to take under the will, and that
her executor could not elect to take the
£3000.

That as the articles were intended to be in
execution of the will, they might be corrected
without interfering with the election.— Briscoe
vy. B., 7 I. E.R. 123; 1 Jon. & L. 334. (C.)

8. Lands were devised to A. for life, sub-
ject to a term of 1000 years, to secure portions
for his younger brothers and sisters. By a
deed of 1886, the testator charged on the
lands a portion for one of the sisters; and, by
a codicil referring to the deed, revoked the
bequest made by the will in her favour. A
claimant from A., under a deed of 1841, regis-
tered before that of 1836, availed himself in
the Master’s office of the codicil to diminish
the portions bequeathed by the will. Held,
that he could not rely on the codicil as adeem-
ing the legacy, and at the same time avail
himself of the prior registration of his deed,
by disclaiming knowledge of the contents of
that of 1846.—Delacour v. Freeman, 2 I. C. R.
633. (R.)

4. A., by will, granted an annuity charge-
able on ten houses, three of which he after-
wards conveyed to the annuitant. Held, an
extinguishment of the annuity; and that the
annuitant should elect between her rights
under the devise and those under the deed.—
Hewson v. Carolin, 41. Jur. 214. (C.)

5. By marriage articles, B., the property of
the wife, was limited to the husband and wife
for their lives, and the life of the survivor;
remainder, subject to a term to secure por-
tions of £1000 for younger children, to the
first and other sons of the marriage, in tail.
W , the property of the husband, was settled
upon the husband and wife, and the survivor,
for their lives, with power for the survivor to
appoint W. to any one or more of the chil-
dren. In default of appointment, equally
amongst them. The wife died first, leaving a
son anda daughter. The husband devised and

[ELECTION]

 

and other Gifts. 251

appointed B. to the son, and devised, limited,
and appuinted W. to the daughter for life, re-
mainder to the son if he survived her; and
declared it to be his intention that “the be-
quest to her should be taken as and for any
sum or claim she might have under and by
virtue.of his marriage settlement, or any
other deed executed by him.” eld, that the
daughter was bound to elect between the
£1000 portion and the benefit given her by
the will. ‘

There is not any authority for the proposi-
tion that a case for election can only be raised
when the property conferred upon a person,
in lieu of that to which he would otherwise
be entitled, is the absolute property of the
giver. An appointment, under a power vested
in him, is sufticient to compel the appuintee
to elect.—Fearon v. F., 31. C. R.-19. (C.)

6. A. having, under his marriage settle-
ment, a power of appuinting £1500 amongst
his children (which sum was, in default of
appointment, to be divided amongst them
equally), and having only two sons, H. and
W., appointed to his son H. £1, and to his
son W. £1; and as to the residue, appointed
the same to his son W., adding :—“ I request
him to have the same invested on mortgage
or in the purchase of lands, and settled on
himself for life, with remainder to his child
or children as he may appoint, with remain-
der to such child or children of my son H. as
he may appoint, with remainder to my own
right heirs.” A., out of his own property,
conferred by his will other benefits on W
Held, that W. was bound to elect between his
rights under the settlement and his rights
under the will.

W. having, during his lifetime, done acts
which amounted to an election to take under
the will, and having died without children—
Held, that the precatory words, contained in
the will, constituted a valid trust in favour of
the children of H., although they were not ob-
jects of the power contained in the settle-
ment.

Blacket v. Lamb, 16 Jur. 142; s.c.21L. J.
N. S. 46, and 14 Beay. 482, commented on.

Carver v. Bowles, 2 Rus. & Myl. 304, con-
sidered.

Moriarty v. Martin, 3 I. C. R. 26; 4 1. Jur.
821. (C.)—[Disapproved of ; King v. K., 15 I.
C. R. 479. (C.)]

7. When a settlement gives the wife, sur-
viving the husband, a power to appoint by
will; in default of direction, limitation, or ap-
pointment, by him, her legal right is to appoint
any portion unappointed by the husband, or
not completely or validly appointed by him. |

A father having a power to appoint among
all his children, by will, purporting to appoint
the whole fund, excluded one child, and ap-
pointed a portion to grandchildren, not ob-
jects of the power. eld, that the appoint-
ment was valid,so far as it related to the
portion appointed to the children.

He bequeathed other legacies to the child-
ren in whose favour he had appointed. Held,
252 Between Testamentary [ELECTION.]

that they were bound
grandchildren. tre :

Quere—Whether the Court has jurisdiction
to decide a question of election on a petition
under the ‘[rustee. Relief Act ?

Semble—The Cuurt has not jurisdiction un-
der the Trustee Relief Act to order service of
notice of the petition on parties residing out
of the jurisdiction, .

The prayer of a petition, and notice thereof
under the Trustee Relief Act, should specify
the exact order sought for, and the precise
portions of the fund which are to be trans-
ferred to the several parties entitled —£z p.
anne 61.C. R. 183; 21. Jur. N. 5. 226.

to elect in favour of the

1. A., tenant for life of S., with remainder
to his eldest son. in.tail male, and scized in
fee of T., devised T. to his eldest son on con-
dition that he should take the necessary steps
to bar his estate tail in the family estates,
and should bequeath and settle the entire of
the family estate on his own male issue; and
if he died without male issue, A.’s will was
that, in an event which happened, his eldest
son'should bequeath the family estates to the
third son and his male issue. The eldest son
suffered a recovery of S., and, having no
issue, conveyed for value his estate to the
third son, who, having no other real estate, by
a will executed before 1838, devised his real
estates and all other real estates whatsoever
and wheresoever which he had power to dis-
pose of by will, to his eldest son, B., for life,
with remainder to his (B.’s) first and other
sons in tail; and bequeathed personal estate
of a large amount to be settled to the same
uses as his real estate; and directed that in-
surances effected on the life of his brother
should be kept on foot out of the rents and
profits of 8. and T., and charged his real
estate with payment of his debts, funeral
expenses, &c.; but only in aid of his personal
estate which should be the primary fund for
paying them; and desired that his issue male,
if they became entitled to S., should pass some
time in each year at S. Held, that B. was
not bound to elect whether he would take un-
der his father’s or grandfather’s will; and
that he had not, by executing a disentailing
deed, deprived himself of the interest of the
personal estate beqeathed to him by his
te will.— Cosby v. Ashtown, 101. C. R. 219.
(R.)

2. H., by marriage settlement, conveyed real
and personal property therein specified, and
all the real and personal property of which he
was then or might die seized or possessed, on
trust, if the petitioner, his intended wife,
should survive him, to raise £400 for the
petitioner.

H., by his will, bequeathed a considerable
portion of the real and personal property spe-
cifically mentioned in his settlement, to his
wife for life, with remainders over. He di-
rected other portions of his property to be
sold, and the proceeds to be invested for the
benefit of his wife for life, with remainders

over; and constituted F. his residuary le-’

 

and other Gifts.

gatee, H. having died, leaving the petioner
surviving,— Held, that she was bound to elect
between the £400 provided by her settlement
and the benefits conferred by the will._—Heazle
v. Fitzmaurice, 13 I. C. R. 481. (C.)

3. A marriage settlement conveyed to trus-
tees property of the wife, in trust to pay the
interest to the husband for life; after his
death, to the wife for life; and, after the
death of the survivor, to pay the principal to
the child or children of the marriage as the
wife should appoint; in default of appoint-
ment, amongst the children, share and share
alike; on failure of issue of the marriage, to
the wife. The only issue of the marriage
died an infant. Afterwards the husband,
who had received from the trustees the bulk
of the trust fund, by will made devises and ~
bequests to his wife, and directed that they
should be in lieu and bar of all her claims
under her marriage settlement to anything
cumprised therein; and that, if she should
elect to take under the settlement, then the
devises and bequests should be void, and the
subject of them comprised in the general
devise of his property. He devised all the
rest of his real and personal property to trus-
tees. Jleld, that the wife, who survived the
husband, was barred by the will from claiming
any portion of the principal of the funds com-
prised in the settlement; but that she was
entitled to the interest of the funds during
her life—Mackey v. Maturin, 15 J. C. R. 150.
(R)

4, A marriage settlement gave a power to
appoint amongst her children £10,000 to a
testatrix, who, by will, appointed to each of
three of her children one-sixth of this fund;
and, in a subsequent part of the will, bo-
queathed to each of them £1000. She directed
that these legacies, and their respective shares
of the appointed fund, should, within twelve
months after her decease, be settled upon
trust for those children for their respective

‘lives; and, after their decease, for their issue

in such shares and proportions as they should
by deed or will appoint; and if go issue, for
such person or persons as they should by deed
or will appoint. The will then expressly pro-
vided that, if the settlements of the legacies
and of the shares of the appointed fund were
not made in the prescribed manner, the lega-
cies should become absolutely forfeited, and
should sink into the residue of the testatrix’s
personal estate. Held, that the direction to
settle the shares of the appointed fund ina
manner not warranted by the power amounted
to a superadded condition attempting to qua-
lify a previous absolute appointment, and that
no question of election was raised thereby.

That, owing to the express clause of for-
feiture, the legatees could not take the lega-
cies without settling their shares in the ap-
pointed fund according to the directions of
the testatrix.—[Moriarty v. Martin, 31. C. R.
26; 41. Jur. 321; disapproved of.]—King v.
K., 15 I. C. RB. 479. (C.)

5. Two judgments and a policy of insurance,
General Doctrine of.

amounting together to £3084. 12s. 4d., were
assigned by marriage settlement in trust for
the wife of A., who received the amount of
the policy. By will A. confirmed the settle-
ment, and bequeathed specified funds and
moneys upon trust to pay his wife the £3084.
12s. 4d., “same being the amount secured by
certain judgments in said settlement men-
tioned—viz., a judgment against G. for the
principal sum of £1200; and two other judg-
ments against the said G. and W. for the
principal sum of £500: and the amount of a
policy of insurance for the sum of £1500 late
Trish currency (equivalent to the sum of
£1384, 12s. 4d. of the present currency), said
sums making together the sum of £3084. 12s. 4d.
which has been received by me.” eld, that
the wife was not entitled to the legacy and
the sums secured by the judgments and policy,
but must elect.—Cooke v. Franklin, 16 I. C. RB.
469. (R.)

1. A., seized in fee, on his marriage, exe-
cuted a settlement whereby £5254, the wife’s
property, was assigned upon trust for the
children as A., and B., his wife, should jointly
appoint; in default, as the survivor should
appoint ; in default, for the children equally ;
if no children, in trust for A., his executors,
&e.

A., just before his death, devised his fee-
simple estates to his eldest son, C., his heirs,
&c., after providing for B.’sjointure. A. then
bequeathed the £5254 to his second son, D.,
his executors, &c. A. and B. never jointly
appointed. B., the survivor, by deed appointed
£1000, parcel of the £5254, to C. Jleld, that
C. was not bound to elect; but might take, as
well the £1000, as the estates devised to him
by A.’s will—WMeredith v. M., 11 I. Jur. N.S.
221. (C.)

 

I. 5. General Doctrine respecting Election.

2. A., on his second marriage, settled lands to
his own use for life ; then to secure a jointure ;
subject thereto to the use of the first and
every other son of A. by his intended wife, V.
The deed empowered A., if he had more than
one son, to prefer him by deed or will to the
whole or part of the settled lands, subject to
the jointure, and to such sums, not exceeding
£4000, as A. might think proper to charge
thereon by deed or will. A. executed this
power in favour of his children by the former
marriage; and afterwards devised estates to
the minor deft., his only living son by the
second marriage. The will recited “that by
his settlement the settled lands were charge-
able” as aforesaid, and “that he had accord-
ingly charged them,” and also that he had
power to prefer any son to the lands; he
devised them to any after-born son he might
have by V. Held, that the power could not
be exercised in favour of any child of the first
marriage, but that the will created a distinct
case for election.—Cooke v. Briscoe, 1 Dr. &
Wal. 596. (C.)

8. The doctrine of election does not apply
when the testator leaves nothing of his own

[ELECTION.]

 

What amounts to. 2538

property.—M'‘Donnell v. M‘D., 4 Dr. & War.
376; 2 Con. & L. 481. (C.)

4. Devise to A. and his issue male; if he
died without issue male, to B.; in like manner
to C. A. and B. having died without leaving
issue male, the lands devised caine to C. A
case of election having arisen under the will, it
was objected that C., having then merely a
contingent interest, was not now bound to
elect. Held, that the doctrine of election
applied to contingent as well as vested in-
terests, and that C. was bound to elect.

C. took the rents and profits of the estates,
mortgaged them, and in every respect used
them as his own. Held, that the circumstances
did not show any election to have been made
by C.—Mahon v. Morgan, 61. Jur. 178. (C.)

5. D., having three sons, A., B., and C.,
devised property to A., and other leasehold
property, together with all the stock-in-trade
which should be in the premises, to B. and C.,
as tenants in common; and directed that if
his sons, or either of them, should die without
leaving lawful issue him surviving, his share
in the premises and in the stock-in-trade
which should be therein at the time of such
decease, should go to and be divided, share
and share alike, between such of his sons as
should be then living, as tenants in common.
B. and C. carried on the trade after D.’s
death. B. died without issue, leaving A. and
C. surviving. Held, that no case of election
arose, there being no condition attached to
the bequest that the stock on the premises, at_
the death of either of the sons, should be sub-
ject to the bequest. A. is only entitled to a
moiety of the stock-in-trade at the testator’s
death.— Thornton v. T., 11 I. C.R. 474; 61.
Jur. N.S. 95. (R.)

I. 6. What language or gift suffices to put a party
to elect : by what instrument.

.

 

 

Il. BETWEEN DIFFERENT RIGHTS AND
REMEDIES.

 

Ii. In otTHer cases.

6. Lands being resettled, £2500 was charged
for younger children by a deed reciting that
estates were charged with £1000 for them
under a previous settlement, which really
charged the lands with £2000. These children
claimed both sums. Held, no case for an
election between the deeds, but merely a mis-
recital; and that the real intention, if it had
been to charge the lands with £2500, in addi-
tion to only £1000, should have been proved
by parol evidence.—Ruby v. Foot and Beamish,
Beat. Rep. 581. (C.)

 

IV. Wat amounts To an Exection.

7. A testator directed certain of his own
moneys, together with moneys belonging to
his daughter, to be settled, on her marriage,
upon trusts specified in his will. On the mar-
riage of the daughter the entire funds- were
254 What amounts

settled upon trusts not in accordance with the
directions of the will. eld, that the settle-
ment was an election to take under the will ;
but that the funds were bound by the trusts in
the will, and not of the settlement.

When a party has notice that he is bound
to elect to take under or against a will, and
deals with the property given to him by the
will as his own, that is a clear, deliberate
act of election to take the property so given
to him.— Briscoe v. B., 71. E. R. 123; 1 Jon.
& L. 335. (C.)

1. Under an Act of Parliament for the for-
mation of a company, every subscriber had
power to charge for the benefit of younger
children, his real estate, with the money sub-
scribed, and such other interest as he should
acquire thereby and assign to his heir. The
devisor subscribed £30,000, which he de-
vised to his heir, and charged his real
estates with that sum for his younger child-
ren. The heir sold the shares. Held, that
this was an election to take under the will,
though he was ignorant at the time of the
comparative value of the charge, and of the
shares.— Stewart v. Donegal, 21. Jur. 49. (C.)

2. A devise to A. and his issue male; if he
died without issue male to B.; and in like
manner to ©. A.and B. having died without
eaving issue male, the lands came to C. A
case of election having arisen under the will,
it was objected that C., having then merely a
contingent interest, was not now bound to
elect. Held, that the doctrine of election ap-
plied to contingent as well as vested inte-
rests, and that C. was bound to elect.

C. took the rents and profits of the estate ;
he mortgaged them, and in every respect used
them as his own. eld, that the circumstan-
ces did not show any election made by C.—
Mahon v. Morgan, 6 1. Jur. 173. (C.)

3. The doctrine of election applies to a re-
mainder expectant on an estate tail, as well
as to immediate interests. A. devised lands,
of which he was seized in fee, to H., and the
lands of C., of which he was seized in tail, to
M. H., on the death of A., became entitled
in remainder expectant on estates tail in his
two brothers, to the lands of C. Held, that
H. was bound to elect.

After the death of his brothers, H. entered
into receipt of the rents of all the lands, in-
cluding the lands of C., maintained M., and
paid an annuity charged on the lands of C.,
of which he executed a disentailing deed, and
mortgaged all the lands. Held, on the autho-
rity of Padbury v. Clarke, (2 M‘N. & Gor. 298),
that he had not elected.

(Bor v. B., 3 Br. P. C. 178, and Stewart v.
Henry, Vern. & Sc. 49, disapproved of. |—Mor-
ganv. M., 41. C.R. 606. (C.) ;

4. A. devised the lands of G., of which he
was seized in fee, to P., B., and H., succes-
sively in strict settlement; and the lands
of C., of which he was seized in tail, to M.
Upon the death of P. and B., H. entered
into receipt of the rents of both properties.

[ELECTION.]

 

to Election.

Shortly afterwards he executed a disentailing
deed of all the lands, and mortgaged them to
N. The mortgage recited the will. Upon
that occasion the value of the properties and
the amount of incumbrances were investi-
gated. Several letters were written at this
time by the agent of H., in which it was
stated that H. always relied on the will. The
question of election was also alluded to in
one of the letters, and H. subsequently made
use of the will to defeat an action brought
upon a set. fa. by the creditors of his brother.
Held, that H. had elected to take under the
will.

There is no authority for the proposition that
a person aware, when he enters into possession
of two properties, of the obligation to elect,
and of their value, can hold both, and say,
whenever he is put to his election, that he
will take against the will, and leave the dis-
appointed devisee to get compensation.

P. was appointed by the will guardian of
M., and when H. entered into possession, M.
continued to reside with, and was maintained
by him. In the letters she was described as
being “‘in his possession.” Held, that H. had
made himself a trustee for M. of one or other
of the properties, and was bound to exercise
for her the right of election.—Morgan v. M.,
21. Jur. N.S. 166. (C.)

5. R., having power to appoint, settled lands
among his children by will dated 1794, which
was not decided to be a due execution of his
power, devised the settled and unsettled lands
to his eldest son, and provided for his daugh-
ters charges of £500 each. H., one of the
daughters, married in 1806, having then lately
attained age. No evidence of her being
aware of the will of R. before her marriage
was given, but a receipt in 1807 for a half
year’s interest, signed by her husband, and a
copy of the will in his handwriting were pro-
duced. Held, on a bill filed in 1833, that the
Court might infer that, at the time of her
marriage, H. knew of the will and acquiesced
in its provisions Hall v. Raymond, 8 I. C. R.
83; Dr. Rep. temp. Napier, 80. (C.)

6. A., seized of an estate tail, in the lands
of §., &c., and of an estate in fee-simple in
H., &c., in the year 1794, by an indenture
reciting that he was seized in fee of both
denominations conveyed them to trustees, to
the use of himself for life, with remainder to
his eldest son B. (who was then born) for life,
remainder to B.’s children successively in tail,
remainder to the sons of A. successively in
tail, with remainders over; and covenanted
with the trustees, that he was seized in fee-
simple of all the lands, and for further assur-
ance. A. died, leaving several sons, and
without barring the entail in S. B. went into
possession of all the lands. In a suit against
B. to raise thereout charges created by A.,
B., by his answer, admitted that A. had been
seized in fee of all the lands. On the investi-
gation of the title, in contemplation of a sale
in that suit, B.’s attention was called to the
existence of the entail. He soon afterwards
executed a disentailing deed. He also pro
[ELECTION.—ELEGIT._EMBLEMENTS.]

cured the discharge from S. of a receiver who
had been appointed over it and H. in the suit,
on the ground that by reason of the entail S.
was not, after the death of A., subject to his
charges. He continued by himself or credi-
tours in possession of all the lands ; and, part of
the lands: of H. having been sold in the suit,
obtained payment of the income of the surplus
fund realised by them and lodged in Court,
claiming such income as tenant for life under
the settlement of 1794. He afterwards mort-
gaged S., by a deed reciting the settlement,
&c., and which conveyed to the mortgagee B.’s
life estate in H., &c., under the settlement.
The persons entitled in remainder did not
interfere, although aware of nearly all these
proceedings. eld, that B. had conclusively
elected to take under the settlement of 1794,
and was bound to give effect to it, and that
his mortgagee, having taken with notice, was
equally bound. B. died without having child-
ren. C., a minor, B.’s heir-at-law, became
entitled to the remainder after B.’s death,
limited by the settlement of 1794. B. devised
S., subject to charges, to trustees for C. Ina
suit by one of the trustees to carry out the
trusts, C., having come of age, and having first
desired an issue as to B.’s competency, a decree
was afterwards made on consent that the
trusts should be carried into execution, and
that the usual consequential accounts should
be taken. C. soon after filed a petition as
owner for the sale of S., to pay B.’s chapges,
and, in a discharge filed in the Master’s Ottice
in an administration suit, admitted that B.
had been seized in fee of S. He afterwards,
by leave of the Master, filed a fresh charge,
alleging that B. had elected to take under the
settlement of 1794. Held, that C. was not
prevented by the decree or his admission from
claiming S., &c., as bound by the settlement of
1794.—Spread v. Morgan, 9 I. C. R. 535; Dr.
Rep. t. Nap. 525. (C.)

 

V. How, BY WHOM, AND WITHIN WHAT TIME
AN ELECTION WILL EE ENFORCED, OR
MUST BE MADE. :

 

VI. Errect oF: HOW ACTED UPON: NATURE
oF RELIEF GRANTED.

1. The effect of election against a will is to
give the property which was devised to the
party electing, to the devisees disappointed
by the election; it never goes as if undisposed
of by the will—Hamilton v. Jackson, 8 I. E.
R. 195; 2 Jon. & L. 295. (C.)

 

ELEGIT.

2. Bill filed by a judgment creditor against
the heir and assignee of the conusor, who had
been discharged as an insolvent shortly before
his death, and also against an elegit creditor
of the conusor, who had been in possession
for many years. Held, that ptf. was only en-
titled to an account for wilful default against
the elegit creditor from the time when the bill
was filed—M‘Donnell vy. Walsh, 2 Dr. & War.
252; 1Con.& L. 388. (C.)

 

 

255

8. An elegit creditor, in possession, must
account as for wilful default, upon the debtor’s
application.— O’Brien v. Mahon, 2 Dr. & War.
306. (C.)

4, When a bill is filed praying an account
of the real and personal estate of a deceased
conusor, it is not necessary, in order to affect
purchasers of the lands affected by the judg-
ment, that an edegit should have been sued out.
Franks v. Mason, 9.1. E.R. 358. (C.)

5. In a suit to raise, after conusor’s death,
the amount of a judgment, and seeking the
usual accounts of his real and personal estates,
it was never necessary to sue out an elegit
before instituting the suit.—/oster v. M‘Mahon,
111. E.R. 287. (C.)

6. An elegit creditor in possession made a
lease of the lands extended for twenty-one
years, provided his estate should last so long.
Before the debt was paid off, or the years had
expired, the lands were sold under a decree
in a creditor’s suit, and conveyed to a pur-
chaser. The conveyance was executed by the
administrator of the elegit creditor. Held,
that though the estate by elegit was merged by
the conveyance, as between the creditor and
the purchaser, it had continuance, as between
the purchaser and the lessee, to support the
lease which still existed at law; but that the
lease in equity was at an end; and, Semble,
the Court would enjoin the lessee from enfor-
cing his legal title under it.

Nature of the estate by elegit, and modes by
which it may be determined.— Williams v.
Morris, 131. E.R. 147. (R.)

7. Before award of an elegit, a judgment
does not bind chattel lands as against purcha-
sers and mortgagees, who became so before the
3 & 4 Vic. c. 105.—Jones v. Stokes, 2 1. Jur.
N.S. 42 (R.)

8. In England, the remedy by elegit of judg-
ment creditors is analogous to that in Ireland
by judgment mortgage.—IJn re Bagnalstown
Ry. Co. 101. Jur. N.S. 156. (B.)

 

ELOPEMENT.

 

a
EMBLEMENTS.

Emblement Act: 14 & 15 Vic. ¢. 25. Re-
pealed by the 23 & 24 Vie.c. 154. See sec. 34
of that Act.

9. The Court deals with its tenants as
tenants; therefore where a tenant had been
let into possession under the Court for seven
years, or pending the cause, the Court would
not grant an injunction to dispossess him,
without an affidavit as to the state of his
crops.—O’ Connell v. O'Callaghan, Long. & T.
157. (E.E.) .

10. Lands were let under the Court for seven
years pending the suit. The tenant, on getting
into possession, paid one year’s rent in ad-
256 [EMBLEMENTS.—EQUITY.]

vance. He entered, and expended money on
the lands. The suit was compromised before
the end of the first half-year.

Cause against putting the owner into pos-
session was allowed with costs, and the issuing
of the injunction was stayed until the end of
the first year of the tenancy which the Court
has created.

The practice of taking rent in advance from
tenants under the Court, disapproved of.—
Lalor v. Netterville, 61. Jur. 261. (i.)

1, A tenant under the Court, in April 1857,
sowed artificial grass on the lands, which he
grazed from October 1857 until May 1858,
when he began to preserve the grass for
meadow. This tenancy expired in May 1858.
Held, that he was not entitled to emblements
of the artificial grass.—Flanugan v. Seaver, 9
IC. RB. 230. (R.)

 

ENDOWMENT.
See Tiruxs, II.

 

ENFRANCHISEMENT.
See CoprHo tp, IV.

 

ENLARGING TIME.

— To Redeem. See Morteacy, V. '
— To Surrender. See Bankruptcy, VIII.
— For Publication. See Practicr, Evipence.

 

ENROLMENT.

See Aynur ty, [l—Drrps, XII—Pracrice,
Decrere—Practicy, DemuRReEr.

 

ENTAILS, BARRING OF.
See Barring Enrarrs—Estate, IL.

 

ENTRY.

— Of Attachment. See Practice, Atracu-
MENT. *

— And Enrolment of Decree. See Practice,
DECREE.

— And Enrolment of Demurrer. See PRactice,
DEMURRER. ‘

— Of Evidence as Read. See Practicz, Evi-

DENCE.
— Of Orders. See Practice, ORDER.

 

EN VENTRE SA MERE.
See Inrant, V.

 

EQUITABLE ASSETS.

See ExEcutors, X.

 

EQUITABLE ESTATE.
See Estate, XIII.

 

EQUITABLE INTERESTS.
See {INTERESTS CONTINGENT.

 

EQUITABLE LIEN.
See Lren—Priority or Securities, II.

 

EQUITABLE MORTGAGE.

See Bankruptcy, X, XIII—Morrcace, X—
Practice, Costs, X.

 

EQUITABLE RELIEF PREVENTED BY
ACTS OF COURTS.—PROCEEDINGS
HINDERED BY ACTS OF COURT.

See INJURIES ARISING TO Partins

 

EQUITY FOR SETTLEMENT.
See Huspanp anp Wire, V—BaNkKRUPTCY,

 

EQUITY.
Irs GENERAL PRINCIPLES :—RELIEF IN.

 

I. Irs Generat PRINCIPLES.

 

Tl. Revier in Equity.

1. In general, and in respect of subject-
matter.

2. In respect of the party—in favour of, or
against whom.

3. Nature and extent of.

4. When there is a concurrent jurisdiction,
or other remedies exist.

 

I. Equiry :—1Ts GENERAL PRINCIPLES.

2. A reference to ascertain what is due from
an infant for penal fines for a non-renewal,
may be obtained on a petition; a bill need
not be filed.—Re Colthurst, 4 I. E. R. 444; FI.
& Kk. 415. (R.) [Reversed: 5 I. E. R. 322;
3 Dr. & War. 35; 2 Con. & L. 35. (C.)]

5. A properly instituted suit in a Court of
Equity will prevent time from running. A
Court of Law ought to act upon this principle,
the statute having prescribed the same rule
for both Courts. This Court, however, will
protect its own jurisdiction, and will not allow
a suitor to be evicted at law, who has an equi-
table right to sue for the land; has filed his
bill within the time permitted; and has duly
pursued his remedy.— Wrizon v. Vize, 3 Dr. &
War. 104; 3 Con. & L. 1388. (C.) [Affg. 2 Dr.
& War. 192; 1 Con. & L. 298. (C.)]

4, A depositor in a Savings’ Bank cannot
bring a suit against the trustees, the 9 G. 4,
c. 92, 8. 45, having established arbitration as

| the only mode of proceeding in disputes be-

tween depositors and the institution.
General

But for that Act, an action at law, not a
suit in equity, would be the proper remedy.—
Cooke v. Lord Courtown, 61. E. R. 266. (R.)

1. Bill to set aside deft.’s purchase, or have
it declared a trust for ptf. The decree esta-
blished ptf’s. right to have the trust so de-
clared; and, upon the taking of accounts
thereby directed, £5162. 11s. 8d. was ascer-
tained to be due to deft. Under the final
decree, ptf. was ordered to pay that sum with-
in six months, and that thereupon the estate
should be reconveyed to ptf. He did not pay
within six months. Semble—that deft’s proper
remedy was—the dismissal of the bill — Austin
v. Chambers, Dr. Rep. temp. Sugden, 85; 3 Dr.
& War. 178. [See6Cl. & F.1. (C.)]

2. A father assigned property to a son for
the purpose of giving a qualification. By
letter the son promised to pay the father a
rentcharge out of the lands equivalent to the
rents. The Court refused to enforce the ar-
rears of the rentcharge, holding the transac-
tion to be only colourable.—In re Johnstone,
8 I.E. R. 227. (R.)

3. By a marriage settlement reciting that
the lady was entitled to an annuity charged
on the estate of her son by a former marriage,
and that the rents were inadequate to meet it,
the lady assigned the annuity and the arrears
and future payments, thereof on trust to receive
so much as the rents would answer for the be-
nefit of herself and husband, and to hold the
arrears then due and thereafter to become due,
in consequence of the rents being insufficient
to answer the same, on trust, if her son should
attain twenty-one, &c., in her lifetime, to re-
lease them, but if he should die before her,
under age, &c., that the arrears due and to be-
come due, should form a fund subject to the
appointment of the wife. It was declared
that in the meantime, and until the arrears
should become either absolutely vested in the
son or subject to the wife’s appointment, the
trustees should not require payment of them.
The son attained twenty-one. The rents
afterwards became sufficient to pay the an-
nuity and leave a surplus. Held, that though
the case was not directly within the deed, the
arrears were not raiseable as against a mort-
gagee of the son.

The conveyance under the former English
Insolvent Acts to the provisional assignee is
within the general Registry Act, nor is the
registration of it dispensed with by the regis-
tration of the conveyance by the provisional
to the creditor’s assignee.—Battersby v. Roch-
fort, 8 I. BE. R..284 (C.) [Reversed; 9 I. E.
R. 191; 2 Jon. & L. 481. (C.)—Rochfort’s
appeal dismissed for incompetency ; 2 H. Lds.
Cas. 388.]

4, When the principal object of the bill is
relief, on the ground of fraud, and ptf. fails to
establish the fraud, the Court may dismiss the
whole bill— Maguire v. O’ Reilly, 9 I. E. R. 335;
8 Jon. & L. 224. (C.) x

5. When the bill does not put in issue the
fact of bankruptcy, evidence of that fact is

[EQUITY.]

 

Principles. 527
not admissible at the hearing. Ifa bill alleges
fraud (which is not proved), besides other
matters which, being proved, are grounds for
a decree; the proper course is to dismiss so
much of the bill as is not proved, and to give
so much relief as the ptf. may be entitled to.
—Archbold vy. Comrs. Ch. Don. & Beg. of Ir., 2
H. L. Cas. 440. [Revg. 11 I. E. R. 187. (C.)]

6. The bill stated that the lands of B.,
part of which contained 159 acres, and part
46 acres, had been for many years before 1794
held by the same tenants, so that the boun-
daries became confused. That in 1804 A.was
seized in fee of the 159 acres, and held the 46
acres under a lease from X. for aterm. That
the mearings and boundaries of the 46 acres
had not since been ascertained, the entire of
the lands having been since the lease, as they
had been for 100 years before, held by the
same persons, who were owners of the fee-
simple lands. That they had been so mixed
up, that it was impossible to discover the
boundaries or to ascertain where the 46 acres
were situated. The bill, after deducing the
title of the ptf. from A., stated that the de-
fendant claimed to be entitled to the 46
acres as assignee of X., and that the ptf.’s in-
terest under the lease had determined, and
prayed a partition or a commission to ascer-
tain the boundaries. Held, on demurrer, that
it could not be sustained for a partition, as
no title to a partition at law was shown, nor
as a bill to ascertain boundaries, as the parties
were independent proprietors, the inference
being that the defendant was in possession of
the 46 acres, and that the owner of the fee-
simple lands and not the defendant was re-
sponsible for the confusion of boundaries.

A partition will be decreed in equity only
where the plaintiff would be entitled to a par-
tition at law.

Confusion of boundaries, unless it arose
from the defendant’s misconduct, is not per se
a ground for a bill to ascertain boundaries.—
O'Hara v. Strange, 111. E.R. 262. (R.)

7. If A. executor and residuary legatee,
promises to pay legacies, directed by the tes-
tator to be paid, and consequently omitted
from the will; equity will enforce the un-
dertaking, and declare A. a trustee for the
legatees.—Shany v. Garty, 21. Jur. 187. (C.)

8. The rule at law, that when the obligee in
a bond becomes executor of the obligor, and
receives assets adequate to discharge the debt,
it is extinguished, is also the rule at law when
one only of two obligees is appointed one of
several executors of the obligor.

The same rules prevail in equity.

This is so, albeit that the obligees are
trustees.

A father, on the marriage of one of his
daughters, entered into a bondto A.and B., con-
ditioned for payment of £4000. On the mar-
riage of another daughter he entered into
a bond toA. and C., conditioned for payment of
£4000, and was a party to the marriage settle-
ments of both daughters, whereby the sums
secured by the bonds were limited upon trusts ;

33
258 General Principles,

and by will, directing his debts to be paid, and
reciting the acknowledgment of the bonds,
devised lands to A., other lands to D., and
bequeathed legacies to both of his daughters,
to be paid out of his personal estate if suffi-
cient, but if not sufficient, out of the devised
lands; appointed A. and two other persons to
be his executors, and died. More than suffi-
cient assets to pay all his debts and legacies
reached the hands of A. Held, that whether
A. had or had not committed a devastavit,
the c. q. trustent had not any equity to raise
the amount of the bond debts out of the lands
devised to D., although C. had personally in-

stituted a suit against A. for indemnification |

of the lands devised to D. against those bond
debts. To that suit the c. g. trustent were not
parties.— Richards v. Molony, 21.C.R.1. (C.)

1. A Court of Equity will not interfere,
except upon a special ground, but will leave
the party to his remedy in a Court of Law.—
Tuomy v. Rahilly, 5 I. Jur.85. (C.)

2. &., solicitor for E., in 1852, purchased in
the I. E. Court, on trust for E., the lands of
F., on which E. had an incumbrance. Credit
was given for E.’s incumbrance in the purchase
of F. and other lands, part of the same estate.
In 1854 8. agreed to take this purchase on
himself, and in May 1855 agreed to convey it
as a security for a demand which E. had
against him. By deed of Oct. 1855, reciting
an alleged conveyance from the Commis-
sioners, 8. conveyed F. to W., who had not
notice of E.’s claim. The Commissioncrs, in
Dec. 1855, conveyed F. to S., in consideration
of money paid in by E. E. and W. both
claimed the rent due from the lessee of F.,
who filed an interpleader suit, and obtained
an order that E, and W. should interplead.
On motion by W. that E. should be restrained
from setting up temporary bars—Held, that
the Court ought not to give any assistance to
o> claim.— Wall v. Wilkinson, $1. C. R. 326.

3. A., seized of the lands of G., subsequent
to a charge for B., gave a judgment to secure
a further charge for B. By a post-nuptial
instrument A. settled G., subject to the charge
for B., but misstating its amount, upon
himself for life, remainder to his eldest sun
for life, remainders over in strict settlement.
On the marriage of A.’s eldest son, the post-
nuptial settlement was adopted. B.’s judg-
ment was paid out of A.’s life estate. Held,
that the judgment creditors of A., after the
settlement, had no equity to raise for their
benefit out of the inheritance, the amount
paid out-of A.’s life estate on foot of B.’s
judgment.

When a notice of motion is served for the
hearing, it is in the discretion of the Court
whether the motion or the cause shall first be
heard.—Stock v. Alyward, 8 I. C. R. 429; Dr.
Rep. temp. Napier, 878. (C.)

4. I., in 1810, by marriage settlement, cove-
nanted with the trustees of that settlement,
that all the property of which he should die

(EQUITY.]

 

Relief in.

seized or possessed, should be charged with
£1300 for the issue of the marriage.

There was but one child, E., issue of that
marriage. On E.’s marriage in 1847, I. con-
veyed freehold property to trustees for the
benefit of E. and the children of her marriage,
and covenanted to make up the amount of the
produce of that property to £300 per annum.
I., by will, in 1852, devised real estate to the
separate use of E., for life, with remainder for
her children, and declared that devise to be
in satisfaction of the covenant in the deed of
1847. In 1852, 1., by deed, assigned railway
shares upon trust for EK. for life, for her sepa-
rate use, if she survived him, with remainder
for her children. By codicil in 1853, I. be-
queathed chattels personal to E., for her sepa-
rate use, and bequeathed £1850, bank stock,
upon trust for G., the husband of E. for life,
remainder to E. for life, remainder for her
children, as therein mentioned. The will and
codicil disposed of the entire of the testator’s
estate. J1eld, that the £1300 secured by the
covenant in the deed of 1810, was not satisfied
by the subsequent benefits conferred by IL—
Garner v. Holmes, 71. C. R. 412. (C.).—[ Revd.
8 I. C. R. 469; Dr. Rep. temp. Napier, 116; 3
I. Jur. N.S. 421. (C.A.)]

5. By settlement executed in 1787, on the
marriage of U., lands held for lives renewable
were settled to the use of E. for life, remainder
to the use of the issue of the marriage, as E.
should appoint; in default, to them, share
and share alike; on failure of issue, to E. ab-
solutely. ‘The issue of the marriage were F.
and the petitioner M. On the marriage of F.,
in 1816, a settlement, to which E. was a party,
recited the limitation contained in the settle-
ment of 1787; that F. was entitled to one
moiety of the lands therein, subject to the life
estate of W., and proceeded to put it into
strict settlement. “E., by this deed, did not
exercise his power of appointment, nor convey
the settled land at all.

In 1817, the petitioner M. married. <A set-
tlement was then executed, in which E. joined,
using words sufficiently large to convey all his
interest in the lands comprised in the deed of
1787. Held, that whatever might be the true
construction of the deed of 1787, ‘the peti-
tioner, claiming under E., would not be allowed
to disappoint the provisions of the deed of
1816.—Nunn v. Donovan, 13 1. C. R. 184; 71.
Jur. N. 8. 313. (C.)

 

I. Revier m Eaurry.

1. In general; in respect of subject-matter.

2. In respect of the party; in favour of, or
aguinst whom.

3. Nature and extent of.

4. When a concurrent jurisdiction exists, or
there are other remedies.

 

Il. 1. In general; in respect of subject-matter.
6. The defendant, representing that his

estate was encumbered only to the amount of

£18,000, borrowed that sum; and agreed to
Relief in.

mortgage the estate as a security, and to pay
off the incumbrances out of the loan.

The lender’s solicitor being very negligent,
the mortgage was executed, and much of the
money paid, before discovering that the in-
eumbrances exceeded £30,000. Held, not too
late to relieve the lender in equity.—Browne
v. Stepney, Beat. Rep. 588. (C.)

1. D., tenant for life, in 1799, demised his
life estate for 99 years, if he so long lived,
upon trust to pay D. an annuity of £10,000,
and to apply the residue in paying his credi-
tors, who should avail themselves of the deed.
In 1819, D. joined B., the tenant in tail, in
opening the estates. The recoveries having
been suffered, the estates were resettled in
1822 by deed, which empowered D. to charge
the estates with £217,000, and empowered B.,
upon D.’s death, to charge them with £100,000;
and then limited the estates (amongst other
uses) upon trust to pay B. an immediate
annuity of £5000, to be increased to £6000
upon B.’s marriage. B., having married, mort-
gaged his annuity to W., the ptf., with the
£100,000, to secure large advances made to
B. by W., who filed his bill to obtain the

[EQUITY.]

 

|
|

Generally. 359

sentations of value, there cannot be a more
effectual bar to the ptf. than to show that,
from the beginning, he was cognisant of all
matters complained of; or, after full informa-
tion of them, continued to deal with the pro-
perty.— Vigors v. Pike, 8 Cl. & Fin. 562. (H.
L.)—[Affg. 2 Dr. & Wal. 1. (C.)]

5. A., B., and C.'were tenants of lands. A.
took a lease of the entire in the common form,
describing them as in possession of A., B., and
C. It was alleged that he took it upon trust
for B. and C. as to the portions in their posses-
sion. He sub-leased to B. his portion, subject
to special covenants; and allowed C. and his
representatives to continue in possession, pay-
ing him the same acreable rent he was himself
subject to. They paid the tithe rentcharge.
Parol acknowledgments were proved by A.,
that he would execute a lease to C. when cal-
led on, and that the original lease was as good
for the occupiers as for himself. He devised
the profit rents of the other parts, without
noticing the part in possession of C.’s represen-
tatives, who were evicted by his heir. Held,
that there was no trust or contract to give C.
an estate in the lands, which could be enforced

benefit of the mortgages, and made parties to in equity. Donohoe v. Conrahy, 8 I. E.R. 679;

the suit certain creditors under the deed of
1799. They were in possession by a receiver
appointed in a suit to carry out the trusts of
that deed; and alleged that W. was not
entitled to relief in respect of the annuity
until they had been repaid the sums received
by D. in violation of the trusts of that deed,
and over and above his annuity. Since 1803,
proceedings had from time to time heen taken
on foot of that deed. In all of them the cre-
ditors confined the relief sought to carrying
the deed into effect, and never raised this
equity. Held, that therefore they were not
now entitled to rely upon it as against a pur-
chaser for value, which W. was, he being B.’s
assignee.— Wallace v. Marquis of Donegal, 1
Dr. & Wal. 461. (C.)—[Aff. Houlditch v. Wal-
lace, 1 Dr. & Wal. 490. -(C.)]

2. A bill for chief-rent is sustainable in this
Court, where the acts of the party liable to
pay it have occasioned the difficulty in the way
of the ptf. proceeding at law to recover it.—
Archbp. of Dublin v. Lord Trimleston, 2 Dr. &
War. 5385. (C.)

8. The Court will not compel specific per-
formance of an agreement, unless the agree-
ment itself can execute the whole contract in
the terms specifically agreed upon.— Gervais
v. Edwards, 4 1. E. R. 555; 2 Dr. & War. 80;
1 Con. & L. 242. (C.)

4, In Equity there is a marked distinction
between what is necessary to resist a suit for
specific performance of a contract, and a suit
founded on an executed contract.

A. case may happen, in which the governing
body of a Joint-stock Co., or the partners of a
firm, may so unite in practising fraud against
the Co. for which they act, as to entitle it to
repudiate and be relieved against those acts.

In a case depending on alleged misrepre-

 

2 Jon. & L. 668. (C.)

6. Plaintiff by his bill stated that J. and
others, next-of-kin of R., agreed that he should
have £300 for his trouble and services in col-
lecting evidence, &c., to establish their claim,
which was disputed; and that they, and par-
ticularly J., promised he should have alien for
that sum on the assets; that in consequence
of his exertions, the parties were declared
next-of-kin, and that J. and another of them,
since deceased, took out administration. The
bill prayed that the ptf. might be declared
to have a lien on the assets. Held, on de-
murrer that the claim, so far as it was a peron-
nal claim, was a demand for work and labour;
and was recoverable, if at all, at law. That
the promise by J. to give a lien on the assets
before administration, could not be enforced
against the assets, when J. and another after-
wards administered. Even if she alone had
administered, such previous promise was by
a stranger, and could be of no avail.

Quere—would such promise be binding even
after administration ?

A demurrer for want of equity will lie to a
ces. bill— Kirwan v. Gorman, 9 I. E. R. 154..

7. The waiver of a contract is itself a con-
tract, and must be acquiesced in by both
parties ; and when relied on against a tenant,
must be established by clear and unequivocal
evidence.

Specific execution of an agreement to lease
at a certain rent, with an understanding that
the tenant was to pay the tithe rentcharge
and poor-rate, decreed by directing the ex-
ecution of a lease at a rent equal to the rent
agreed on and the tithe rentcharge; a lease
for a longer term having been prepared at
that rent by the agent of the landlord without
his authority, on the tenant’s representation,
260 Relief in.
and executed by the tenant, and the rent so
reserved having been accepted by the landlord.

Semble—A contract partly legal and partly
illegal, if the illegal part be not malum in se,
and rests in understanding only, may be speci-
fically performed so far as it is legally capable
of execution.— Carolan v. Brabazon, 9 I. E. R.
224; 3 Jon. & L. 200. (C.)

1. In a petition matter under the Mortgage
Act the Court will not decide equities between
owners of different parts of the mortgaged pre-
mises. A receiver had received all the rents
out of the portion of A., who had a right to
be indemnified out of the portion of B., who
had been required to pay nothing to the re-
ceiver for some years. The Court refused to
charge the receiver as for default, at the in-
stance of A., the mortgagee having been paid
all his interest.—Lane v. Lynch, 91. E. R. 501.
(C.)

2. Right of survivorship between two build-
ders, with a provision for a lease of the ground,
they not being general partners, not interfered
with.— Reilly v. Walsh, 11 I. E. R. 22. (C.)

3. The conuzor of a judgment being seized in
quasi fee, became bya deed prior to 1840 tenant
for life of the lands; and created charges
on them. The judgment creditor subse-
quently advanced sums to save the lands from
eviction, and filed a bill for a sale during the
conuzor’s life. The rent being again in arrear,
he made further advances to pay it under an
order in this cause. Held (Moore, J., dissen-
tiente), that as a salvagor he was entitled to a
sale of the quasi fee, though he could not have
a sale as judgment creditor against the re-
mainderman or creditors prior to 1840,—
Fetherstone v. Mitchell, 11 I. E. R. 85. (C.)

4, ‘A sub-tenant having redeemed his land-
lord’s interest by advances for head rent, filed
a bill for the sale of that interest; and sub-
sequently made further advances for the same
purpose. Held, that these several advances
were the first charge on the mesne landlord’s
interest in priority to incumbrances prior in
date, and that the salvagor was entitled to
a sale for payment.—Locke v. Evans. 11 I. E.
R. 52. (E.E.)

5. A testator bequeathed a farm to P.,
with a direction in the will that his widow
should have her diet and lodging in the house.
Held, that on refusal by P., the widow could
eae the direction by bill in equity against

A bequest to a widow of diet and lodging,
rovided she wished to remain in a certain
ouse—Held, not forfeited by her leaving the

house ; but that she was entitled subsequently
only from the time of demand made.—Ayan v.
&., 12 1, E. R. 226. (C.)

6. A bill lies to recover an ancient rent, the
origin of which is unknown, and the lands
charged not accurately ascertainable; espe-
cially where the parties liable to pay it have,
by selling parts of the lands charged, and

[EQUITY.]

 

Generally.

charging others by way of indemnity to the
purchaser, and long acting on that arrange-
ment, rendered the owner’s rights more uncer-
tain.—Archbishop of Dubliny. Lord Trimleston,
121. E. R. 251. (C.)

7. A dill in equity does not lie to recover
the arrears of a rentcharge, unless it be
proved that there are circumstances which
render the legal remedies useless or very dif-
ficult. The several authorities respecting
bills for annuities and rentcharges reviewed
and observed on.—Brady v. FitzGerald, 12 I.
E. R. 278. (C.)

8. Moneys expended under the statutes for
buildings and other improvements on glebe
lands, duly certified by the bishop, constitute a
good legal charge on a moiety of the benefice.
But a Court of Equity will not entertain a suit
respecting such a charge, unless there be spe-
cial equitable grounds which call for its inter-
ference.—Brooke v. Horner, 18 I. E. R. 272.
(C.)—[See Brooke v. Horner, 11 I. E. R. 214
(C.); reversing 101. E.R. 305. (R.)]

9. Although a sub-lease of church lands and
tithes, containing a ¢. g. covenant on the part
of the sub-lessor to renew, does not contain a
mutual covenant on the part of the sub-lessee
to accept a renewal, the latter is not thereby
prevented from filing a billin equity to obtain
a renewal.—Morgan v. Gurley, 1 I. C. R. 482.
©.)

10. An incumbent in 1840, by deed, charged
his benefice with an annuity, and covenanted
that any benefice to which he might be pre-
ferred should, immediately upon his becoming
entitled thereto, stand charged with the an-
nuity. In August 1840 he was promoted to a
new benefice. In Oct. 1840 a judgment was
recovered against him by a creditor, who ob-
tained sequestration of the new benefice. In
1849 the annuitant filed a bill to raise the
arrears of his annuity by means of a receiver.
That bill was taken as confessed against the
incumbent, and was answered by the seques-
tration creditor. Held, that the annuity
attached upon the new benefice at the mo-
ment at which the incumbent became entitled
thereto, and had priority over the claim of
the sequestration creditor ; whether or not, at
the time of the rendition of the judgment, he
had notice of the annuity and covenant.

That the annuitant was entitled to have a
receiver appointed over the benefice upon an
interlocutory application, made for that pur-
pose before the hearing.— Battersby v. Homan,
21.C. R. 232; 2 I. Jur. 121. (C.)

11. The defendant had acted gratuitously as
the agent of the plaintiff, transmitting to her
the interest of charges to which she was enti-
tled. One charge was paid to the defendant,
which the plaintiff directed him to invest on
a specified real security. He was unable to do
so; but without her authority lent it to L.,
for whom he was also agent, and who was in-
debted to him, on the security of a bond, with
warrant of attorney to enter judgment. He
Relief in.

inclosed the bond and warrant to her in a
letter, stating, contrary to the fact, that the
money had been applied to pay off a charge
on his estate. L. afterwards, on his son’s
marriage, conveyed a part of his estate in
trust to pay off charges on his estate; an-
other part to the use of his son and his issue;
and the lands of C., in trust to secure his debt
to the defendant. The defendant, in several
letters, offered to give the plaintiff’s claim
priority over his demand on C. L. being
dead, leaving no assets to pay the plaintiff’s
claim, the Court, on a bill filed by her, de-
clared her entitled to a specific performance
of the contract contained in the letters; that
the defendant was a trustee for the plaintiff
as to so much of his security on C. as would
be sufficient to pay her claim; and ordered
that he should execute a deed declaring the
trust.—O’ Beirne v. Cornwall, 3 I. C. R. 180;
5 I. Jur. 13. (C.)

1. Lands were settled to the use of A., for
life; remainder to trustees to preserve, &c. ;
remainder to B. in tail; remainder to N. in
tail. In 1806, A. conveyed his life estate in
a part of the lands to B. A. and B. mort-
gaged the entire to C. A recovery was suf-
fered, which was defective. In 1809, B. died,
leaving N. his heir-at-law. In 1810, on N.’s
marriage, a settlement, to which C. was not a
party, recited the mortgage and recovery as
valid, and the lands were charged with por-
tions. In 1845, a disentailing deed was exe-
cuted by N. Held, that neither the recital in
the settlément, nor the disentailing deed, had
the effect of setting up the mortgage against
the parties claiming under the settlement.—
In re Davies, 4 I. C. R. 87. (P.C.)

2. One of the conditions indorsed on a po-
licy of insurance was, that no insurance would
be held in force until the premium should
have been actually paid to the Company, nor
would any policy be valid beyond fifteen days
after the expiration of any year, unless the
premium for its renewal should have been
actually paid to the Company. Insurances
might be renewed within three months, on
satisfactory proof of the health of the life in-
sured. In the printed directions of the Com-
pany to their agents, every life policy was to
be renewed within fifteen days after the pre-
mium became due. If any policy was not re-
newed within fifteen days, the agent was to
give notice thereof to the secretary, and the
policy could not afterwards be renewed with-
out a fine, and subject to the conditions of the
Company. All receipts for the renewal of
life policies, not paid within a month from
the expiration of the policies, were to be re-
turned to the office at the end of that period.
A policy was effected with an agent of the
Company, who, to accommodate the insurer,
took bills for the amount of the several pre-
miums, debiting himself with the amount of
the premiums in his accounts with the Com-
pany, without communicating the transaction
to the Company. The bills not having been
paid, he took a security for them. A sub-
sequent premium having accrued due in De-

[EQUITY.]

 

Generally. 261
cember 1846, the usual receipt in blank for
the premium was forwarded to the agent.
The premium was not paid, nor did the agent,
at the time it was due debit himself with the
premium, by any entry in a book or account.
In his next quarterly account, in March 1847,
he debited himself therewith, and shortly
afterwards paid the amount, at the request
of the treasurer, without communicating the
transaction to the Co. Like transactions took
place in 1847 and 1848. The life died in
1849. The receipts for the premiums, still in
blank, were handed back to the Company.
Shortly afterwards a correspondence took
place between the secretary of the Company
and the agent, the agent claiming the amount
of the policy. As he had no assignment nor
possession of the policy, the Company de-
clined to pay, unless the insurer joined in the
receipt for the amount. A report was pre-
pared by the solicitor of the Company, and
sent to the agent, suggesting that course, or
that the agent should proceed against the in-
surer, to ascertain their relative rights. The
insurer having declined to join in the receipt,
the Company refused to give credit for the
amount of the insurance against the balance
due by the agent, for which they brought an
action and recovered a verdict, without giving
credit for the three premiums of the disputed
policy paid by the agent. The amount was
demanded, and paid by the agent to the Com-
pany. Held, that the policy had dropped.

That the forfeiture of the policy was not
waived by the report and correspondence re-
lating to it.

Semble — The retention of the premiums,
with knowledge of all the facts, did not con-
stitute a new contract to set up the policy;
but the Court directed an action to be brought
to try that question.

Held, that, supposing the policy to be set up
by the retention of the premiums, the agent
had a lien on the policy, enforcible in Equity,
for their amount.—Busteed v. West of England
Insurance Company, 5 I. C. R. 558. (R.)

38. An heir-at-law who has executed deeds
reciting that his ancestor had executed a will,
and who has induced the devisee to deal with
him on that assumption, is not entitled to a
decree preventing the devisee from setting up
at law temporary bars, or relying on the es-
toppel created by such deeds, upon the mere
allegation that he had executed such deeds
under a mistake respecting the due execution
of the will, without giving evidence that in
fact the will had not been duly executed.

The petitioner did not show any reason for
not producing the evidence of mistake which
she alleged to exist. At the Bar it was stated
that she had omitted producing it under ad-
vice. The petition was dismissed absolutely,
without reserving any leave to file a new peti-
tion.

On a re-hearing, the petitioner applied for
permission to examine the witnesses to the
will. That application was refused.—French v.
Copinger, 61. C. R. 568; 31. Jur. N. 8.21. (C.)

4. Persons in whom the shares of coparce-
262 Relief in.
ners had vested, granted a lease for lives re-
newable for ever. Their interest vested in
the petitioner and respondent, subject to the
lease. The petitioner filed his petition for
a partition. Held, that such a suit was not
sustainable.— Cantwell v. Hassard, 7 I. C. R.
370; 31. Jur. N.S. 377. (C.)—[Affd. 71. C.
R. 871. (C.A.)]

1. Lands were sold in the I. E. Court, and
the proceeds brought into a cause pending in
Chancery to be there administered. W., the
first incumbrancer, was not made a party to
the suit. The fund was paid to P., a puisne
incumbrancer. Held, that P. was liable ina
suit instituted for the purpose to make good
to W. that amount.— Walker v. Power, 9 I. C.
R. 527; 51. Jur. N. 8.13. (C.A.)

2. V., tenant for life of S., with remain-
der to his eldest son in tail male, and seized
in fee of T., devised T. to his eldest son, on
condition that he would take the necessary
steps to bar his estate tail in the family estates,
and would, by will, bequeath and settle the
entire of the family estates on his own male
issue ; and if he died without male issue it was
the testator’s will, in an event which happened,
that his eldest son should by will bequeath
the family estates to the third son and his
male issue. The eldest son suffered a recovery
of S., and having no issue, conveyed, for value,
his estate to the third son, who, having no
other real estate, by a will executed before
1838, devised his real estates, and all other
real estates whatsoever and wheresoever, which
he had power to dispose of by will, to his
eldest son, A., for life, with remainder to his,
A.’s, first and other sons in tail; bequeathed
personal estate of alarge amount to be settled
to the same uses as his real estate; directed
that assurances effected on the life of his
brother should be kept on foot out of the

[EQUITY.]

 

Generally.

trust for W. for life; after his death,
upon trust to pay the interest to A., his in-
tended wife, as a jointure; with a power
to W. to revoke the trust of the fund so to be
invested, on conveying to the trustees real
estates to the value of £600 a-year to be held
on the same trusts. W. died in 1798, leaving
one son, who died in 1812. In 1799 and 1801
his: executors transferred to the trustees of
the settlement £4 per cent. stock, then pro-
ducing £600 a-year, but which was, by succes-
sive Acts of Parliament ultimately, in 1854,
reduced to £3 per cent. stock, and became in-
sufficient to pay the £600 a-year. Held, that
A. was not entitled to have the deficiency
made good out of the assets of W., the cove-
nant having been performed by the transfer of
stock which, in 1801, produced £600 a-year.

W., by will, after directing his debts to be
paid, and bequeathing legacies, left all the re-
sidue of his personal estate to his executors
in trust to pay the interest to his wife, A., for
life. Jfeld, that the reversionary interest in
the stock transferred to the trustees to answer
the jointure passed by the residuary bequest,
no intention to exclude it appearing by the will.

That A. was entitled to have the rever-
sionary interest sold at the end of one year
from the testator’s death, the proceeds in-
vested, and the dividends paid to her for life.
That having been omitted,the Court directed
an inquiry to ascertain what sum in stock
could have been purchased with the value of
the reversionary interest at that period, and
that so much of the assets should be set apart,
and the amount of the dividends which would
have been payable to A., if the investment had
been made, should be paid to her.

That A. was not barred in 1859 by the
Statute of Limitations or by /aches, there being
a subsisting fund liable to her demand.

A portion of the residuary property con-

‘sisted of a sum of stock, which was set apart

rents and profits of S. and T.; charged his real , to meet a life annuity, which determined in
estate with the payment of his debts, funeral | 1829. In asuit to administer the assets of W.,
expenses, &c.—but only in aid of his personal the dividends of the stock, which accrued
estate, which should be the primary fund for | after the death of the annuitant, were decreed
paying the same,—and desired that if his issue | to be paid to A. and her second husband. Held,
male became entitled to S.; they should pass :

some time in each year at S. Held, that A.
was not bound to elect whether he would take
under his father’s or grandfather’s will, and
that he had not, by executing a disentailing
deed, deprived himself of the interest in
the personal estate bequeathed to him by his
father’s will.—Cosby v. Ashstown, 10 I. C. R.
219. (R.)

3. By marriage settlement in 1797, reciting
that W., the intended husband, was entitled to
real estate on the decease of his father, and
to sums in the English funds, and to moneys,
&c., as residuary legatee of his grandmother,
W. covenanted with the trustees that he
would, as soon as he could after the execu-
tion of the settlement, transfer to them those
moneys; and invest in such funds as should
be thought most advisable, in the names
of the trustees, as much more as would make
a sum, the interest of which should amount
to £600 a-year, free from all deductions, in

 

that A. was not entitled to any relief against
the assets by reason of the stock not having
been sold a year after the death of W.— Napier
v. Staples, 101. C. R. 344. (R.)

4, A., testator, by will, in 1836, executed a
power of appointing among his younger sons
£2000 charged by his marriage settlement on
the lands of H., of which he was tenant for
life. After his death his eldest son, B., who
took H. as tenant in tail, conveyed them in
1837 to trustees to secure £1600 by mortgage,
the younger sons being parties to the mort-
gage and consenting thereby to postpone
their claims to it. At the same time B. exe-
cuted his bond collateral for securing the
same sum, and warrant, upon which judgment
was entered. In 1841 B. purchased the lands
of F., and in 1845 L. obtained a judgment
against him. H. and F. were subsequently
sold in the L. E. Court. The proceeds of H.
having proved insufficient to pay the mort-
gage, it was ordered to be paid rateably out
Relief in.

of the proceeds of H. and F.; the surplus of
H. to be applied in discharge of the appoin-
tees’ claim; thé surplus of F. in discharge of
the judgment.

This Court reversed that decision, being of
opinion that no equity had arisen upon the
purchase of F. in favour of the appointees
under the will, so as to entitle them to insist
upon the mortgagee’s claim being paid rate-
ably out of the proceeds of H. and F.; and
that consequently the doctrine of marshalling
did not apply.

[Barnes v. Racster, 1 Y. & Col. Ch. Cas. 401,
commented on].—Jn re Lawder’s Estate, 11. I.
C. R. 346. (C.A.)

1, A., seized in fee of estates called the
“family estates,” and tenant for life of de-
vised estates, remainder to B., his eldest son,
in tail, subject to large incumbrances affect-
ing each estate. A. and B. agreed that all the
incumbrances should be paid by the sale of
C., a portion of the devised estate, which was
of sufficient value for the purpose; and that
the residue of the devised estate, and the
family estate, should be settled on A. for life;
remainder to B. for life; remainder over.
Two deeds were executed, by one of which
the entail of the devised estate was barred;
and it was conveyed to such uses as A. should
appoint. By the other, A. conveyed the
family estate, and conveyed and appointed
the devised estate to such uses as A. and B.
should jointly appoint; and, in default of
appointment, to the use of trustees for 1000
years, to secure younger children’s portions,
and subject thereto to the use of A. for life ;
remainder to B. for life; remainder to the
first and other sons of B. in tail; remainder
over: and A. covenanted with B. that he
would sell C., a portion of the devised estate,
and would, out of the rents received by him
before sale, and the money which should arise
by such sale, pay off all the charges and
incumbrances affecting both estates. A. mis-
applied the rents, and suffered an arrear of
interest of the incumbrances on the family
estate to accrue; in consequence of which
the price of C. was insufficient to pay off
the incumbrances and the interest on them;
and a portion of the family estate was sold.
Held, that B. had an equity against A. to
be recouped out of the rents of the life
estate which he derived under the deed, to
the extent of all interest on the incumbrances
scheduled in the deed which accrued after
the date of it, and which were levied by sale
of any of the family estates, in consequence
of the misapplication of the rents by A.

That, although A. was not bound, before
the execution of the deed, to pay the arrear
of interest then due on the family estate,
such arrear was, under the deed, to be paid
out of the rents and produce of the sale
of C.

That the rents and the price of C. were
also applicable to pay arrears due on the
devised estate. /

That the equity of the petitioner to be
recouped prevailed over the right of judg-
ment creditors of A., whose judgments were

[EQUITY.]

Generally. 263 -

obtained subsequentiy to the deed, and who
had appointed a receiver over his life estate.
—-Kilworth v. Mountcashel, 12 I. C. R. 43. (R.)
(The Master took the accounts. The appeal
from his order is reported, 15 I. C. R. 565.]

2. The owners of the K. and S. estates
(held by the same title) having entered into a
contract to sell S. by private sale, filed a peti-
tion in the I: E. Court to sell K. On the
settlement of the final schedule, E., a mortga-
gee of both K. and §&., filed an objection,
claiming to be entitled to priority to the
L. and C. bank. The I. E. Court overruled
that objection. Its decision was affirmed by
the C. A. Both decisions were reversed in
the H. of L. Pending the decision there, the
contract for the sale of 8. was abandoned;
and the owners filed a petition for a sale
in the I. E. Court. On the final schedule
of incumbrances, E.’s mortgage was _post-
poned to the claim of the L. and C. Bank.
E. did not file any objection, deeming it
useless to do so, in consequence of the pre-
vious decisions, and pending the decision in
the H. of L. After the decision in the H. of
L. in his favour, E. applied to the L. E. Court
to have the final schedules in both matters
amended, by inserting his mortgage in its
proper priority. That Court refused, because
E. had filed no objection. Held, that E. had
an equity to have his objection to the sche-
dule in the first matter treated as an objec-
tion to the schedule in the second matter,
and that the latter schedule should be amend-
ed accordingly.—Jn re Burmester’s Estate, 14 I.
C.R. 48. (C.A.)

8. A conveyancer’s mistake does not entitle
a party to relief in Equity— Ellis v. The Lord
Primate, 10 I. Jur. N.S. 61. (C.A.)

4. When money has been paid, or a convey-
ance executed, in ignorance of a point of law,
relief may be granted in Equity; but relief
will not be given when it would be against
good conscience that the party who made the
; mistake should be freed from the conse-
‘ quence of his own error— Cooper v. Phibbs, 17
I.C.R. 78; 101. Jur. N.S. 239. (C.)— [De-
cree revd., 2 L. R., H. L. 149.)

5. When a cause petition (in Ir.) seeking
the cancellation of an agreement to hire pro-
perty, sets forth facts which go to establish a
title to the property itself, and the answering
affidavits do not deny these facts, but set up a
title in the defts. to the property, the Court
may, under the general prayer for relief, make
a declaration touching pltf.’s title to the pro-
perty.

When two parties, under a mistake of fact,
enter into an agreement, either of them has a
title to come to Equity to be relieved from it.
That relief will be given on the principles of
good conscience alone.

A. expected to succeed to estates then in
possession of his elder unmarried brother,
who bought a fishery which was duly conveyed
to him. Becoming a lunatic afterwards, A.
was appointed his committee. A. had two

 
264 Relief in.
sons, B. and C. In 1827, on B.’s marriage,
there was executed a settlement, to which A.,
B., and C. were parties. It contained a cove-
nant, on A.’s part, that he, if he succeeded to
the lunatic’s estates of inheritance and here-
ditaments, would convey them to trustees for
himself for life, then to B. and his heirs male
in strict settlement, remainder to C. and his
theirs male in strict settlement. B. and C.
entered into similar covenants. A. died. The
only children of B.’s marriage were daughters.
B. acted, as his father had done, as committee
of the lunatic, and in that character intro-
duced into Parliament a bill to enable the
lunatic to make cuts and canals to improve
the fishery. The lunatic died while the bill
was before Parliament. All his estates (in-
cluding the fishery) were taken possession of
by B., who, having procured the passage of
the Act, made the cuts and canals under its
authority. The Act recited the settlement of
1827, and that the property had been the pro-
perty of the lunatic; but had by his death
vested in B. On B.’s death (whom C. had
pre-deceased) C.’s eldest son entered into pos-
session of the estates, but, believing (as he had
always heard) that the fishery was B.’s pro-
perty, agreed to rent it from B.’s daughters.
Soon afterwards he read the private Act,
and then, believing that under its provisions
and the deed of 1827, the fishery really be-
longed to himself, he filed a cause petition in
the Court of Ch. (in Ir.) stating the facts, and
praying that the agreement might be ordered
to be delivered up, and for such other relief
as “the nature of the case would admit of,
and to the Court might seem fit.” The
daughters’ answer claimed the fishery as B.’s
property under the Act. Held, that the fishery
was the property of C.’s eldest son under the
deed of 1827, the provisions whereof were not
modified by the Act in any way.

That the agreement, having been made
under a mutual mistake, the pltf., though
there was not fraud, was entitled to have it
set aside.

That under this form of proceeding, all the
facts appearing fully on the face of the peti-
tion and answering affidavits, the Court was
authorised not only to set aside the agreement,
but to declare ptf.’s title to the fishery.

(By Lord Westbury)—In the maxim, “ gno-
rantia juris haud excusat,” the word “jus” has
the sense of general law or of private right, ac-
cording to circumstances.

Special directions were given touching B.’s
expenditure in improving the fishery and also
for the purpose of adding fresh parties to the
suit, so as to make a final determination of the
cause.— Cooper v. Phibbs, 2 L. Rep. H. L. 149.
[Revg. sc. 17 I. C. R. 73; 10 I. Jur. N.S.
239. (C.)]

Il. 2. Relief in Equity in respect of the party :

tn favour of, or against whom.

1. A lease for lives, renewable for ever,
having expired without being renewed, the
landlord brought an ejectment, and the te-
nant took defence. Held, that that circum-
stance alone was not ground sufficient to de-

[EQUITY.]

 

As to Parties.

prive him of relief in Equity.—Wallace v.
Patten, 1 I. E. R. 338. (C.)

2. By deed, referring a matter to arbitra-
tion between A. and B., A. was to pay B.a
sum in four months, and also confessed a‘
judgment to secure it. A. did not pay. B.
had him arrested. The deed provided for the
attendance and examination of the parties
before the arbitrators.— Held, that A.’s impri-
sonment, caused by his own breach of con-
tract, gave him no better equity.

Compensation was to be awarded to A. out
of X. for any inequality in a partition of Y.
By an event contemplated at the time, X.
became insufficient. Held, that A. could not
be relieved on that ground.—Dimsdale v. Ro-
bertson, 71. E.R. 536; 2Jon. & L.58. (C.)

3. Though trustees are protected in acting
under the decisions of a competent tribunal,
that protection does not extend to persons
receiving payments out of afund for them-
selves; and, though the decision has been
long acted upon, it is not a protection to such
persons against the claims of others not bound
by it—Foster v. M‘Mahon, 11 I. E. R. 287.

©.)

4. By an arrangement for winding up a
banking company which had stopped pay-
ment, sums were subscribed by shareholders,
and the assets of the bank assigned to T., a
shareholder, and §., who undertook its lia-
bilities. Part of the arrangement was that S.,
claiming to be a creditor of the bank, should
obtain a judgment against the public officer,
to be used only to compel non-subscribing
shareholders to contribute. S. became bank-
rupt. His assignee issued a sev. fa. against T.
On a bill by T. to restrain him— Held, that the
judgment being a contrivance to compel the
non-subscribing shareholders indirectly to pay
what they might possibly have equities to re-
sist, if sued directly, the Court would not re-
lieve one party to this contrivance against
the other, though suing in breach of faith.

Documents evidencing the arrangement
contained an express saving of all S.’s rights.
Semble—The arrangement would, notwith-
standing, prevent S. asserting his legal rights
against T., if the equity depended on the con-
struction only.— Taylor v. Campbell, 10 I. E. R.
R. 249. (C.)

5. By deed (reciting that A was indebted by
judgment, to X in £3000; A.’s inability to pay;
and an agreement by X to accept £700 in lieu
of the £3000, if punctually paid, to be secured
by B.), B. mortgaged his property to secure
the £700; payable by instalments. The deed
provided that if the instalments should not be
punctually paid, X. should be remitted to his
original rights against A., as well as have the
security of the deed for the £700. By a con-
temporaneous deed the judgments were as-
signed to a trustee, for X., in case of default
in punctual payment of the £700, and on pay-
ment of the £700 for A. and B. By a prior
deed A. mortgaged his property to B. for
other debts, and as a counter-security. De-
a

Relief in.

fault was made in payment of the instalments,
and X.’s assignee claimed the entire £3000.—
Held, that although the Court would not inter-
fere for A. if the arrangement were between
him and X. only, yet, as the rights of B. were
involved, the condition in default of punctual
payment should be treated as a penalty and
relieved against; and that this equity could
be enforced by A. as well as by B.—Carvoll v.
O’ Connor, 111. E. R. 200. (C.)

1. T.,a trustee, lent trust money on mortgage
to M. By arrangement, on the marriage of M.’s
daughter, a valuable leasehold interest was
granted by M. out of the mortgaged premises,
and put insettlement. T. was the person who
both lent the trust money on mortgage, and
who as solicitor prepared the lease and settle-
ment. Neither M.’s daughter nor her hus-
band was informed of mortgage. Afterwards
T., with his co-trustee and their c. q. trusts,
filed a bill to foreclose the mortgage and sell,
discharged of the lease, if necessary. Held,
that the parties deriving under the settlement
must be fixed with notice of the mortgage and
trusts, and could not rely on T.’s conduct as
a defence, even against him; and therefore,
could not object to his being a co-ptf.

Quere—If notice was not shown, would such
an equity be a defence against a trustee ?—
Twycross vy. Moore, 13 I. E. R. 250. (C.)

2. S. obtained probate of the will of E.,
whose next-of-kin, C., appealed. The Court of
Delegates reversed that sentence. Mean-
while, 8. had transferred a considerable fund,
alleged to be a portion of the assets of E., to
B., in order to retain the dominion over it, if
administraton were granted to C. The latter
sentence was ultimately reversed under a com-
mission of review. A. called on B. to refund
the property. B. not having complied, 8.
filed a cause petiton, on which an order in the
nature of a decree pro confesso was made against
him. B. was by a subsequent order permitted
to file answering affidavits on the terms of not
relying on any defence, save that the pro-
perty was a gift. Held, that if there had been
any illegality in the original transaction, it
could not, in that position of the cause, im-
pede the petr.’s right to recover, even though
appearing on her own case.

Semble—That B. being an attorney, and hay-
ing suggested the arrangement without having
stated to S. that it would be impossible for 8S.
to compel him to refund, would not under any
circumstances have been permitted to rely on
the illegality of the transaction as a defence
to S.’s suit.

Serious questions of fact cannot be satisfac-
torly determined by the Court in a proceeding
by cause petn., without directing an issue.—
Kelly v. Birch, 3 1. C. R. 466; 7 I. Jur. 73. (C.)

3. When the tenant for life of lands subject
to incumbrances permits arrears of interest to
accumulate, the remainderman may, after the
decease of the tenant for life, claim as a debt
against his assets the amount of interest with

[EQUITY.]

 

As to Parties. 265

which the inheritance was burdened by default
of the tenant for life —Baldwin v. B., 61. C.
R. 156. (C.)

4, When one co-tenant receives more than
his share of the rents of a property, the other
co-tenant can compel an account and pay-
ment, by suit in equity.—Montgomery v. Swanp
91.C.R. 181; Dr. Rep. temp. Napier, 520;
504 I. Jur. N. §. 213. (C.)

5. A. being entitled to leasehold, and also
to fee-simple estates, devised the latter on
trust for his grandson, B., if he attained
twenty-three, and to his sons in tail male;
and if B. should not attain twenty-three,
then to whichever of his, A.’s, other grandsons
should do so first, with remainders over. He
also bequeathed to C., a grandson, one-seventh
of his residuary estate, which included his
leasehold estate. B. attained twenty-three,
and died without issue in 1849. By deed of
1834, C. conveyed to E. all that and those the
seventh share of C. of and in the residuary
estate of A., and in particular his share in the
seventh part of the residuary property, “and
all the estate and interest of him the said C.
therein ; or in any other lands which were part
of the residuary estate” of A., to have and to
hold the said leaseholds, “and all other the
share which the said C. ts at present entitled to,
of any lands or tenements, or any other property,
part of the residuary estate of A.” This deed
was prepared by the present owner, a solicitor.
E. subsequently, in 1835, conveyed to the
owner in similar terms. C. died in 1848, hav-
ing first disposed by a codicil of his shares of
the fee-simple estate to which he was to be-
come entitled on the death of B., and having
charged that share with £1000 for X., the
present claimant. X. was then a minor; and
though he took no steps until the present pro-
ceedings to enforce his demand, he was paid
annually £120 by the owner, up to the filing
of the petition in this matter. Held, that this
payment, though it could not bind the owner’s
creditors, rebuts charges of laches against X.

That the fee-simple lands did not pass in
equity, by the deed of 1834 to E., owing to
fraud, either in the preparation of the deed,
or in the making of a claim to the lands.

That mortgagees without notice of the
fraud could not avail themselves in this case
of that defence, since there were circumstances
of a nature to put them on suspicion, patent
on the face of the title.

Semble—If the intent of the deed was clear,
and part of the consideration was paid for the
reversionary interest in the fee-simple estate,
it would have been competent to the parties
to convey their rights (in equity at least) by
any part of the deed,—ZJn re Rorke’s Estate, 13
IC. R. 365. (L.E.C.)

6. By marriage settlement lands were limi-
ted (amongst other uses) to trustees for 500
years; and, subject to the term, to the use of
A. for life; with remainder to the use that
A.’s intended wife should receive a jointure ;

34
266 Nature, Sc.

and, subject to these limitations, to the use
of the first son of the marriage in tail male,
with remainders over. The trusts of the term
of 500 years were, to secure the payment of
the jointure, and after the decease of A., or an
his lifetime, with his consent in writing, to raise
£10,000, as portions for younger children, to
ke divided between them as A. should ap-
point. There were issue of the marriage, an
eldest son and two younger children. A., by
two deeds-poll, appointed the whole of the
£10,000 to his two younger children, in cer-
tain proportions, and directed that it should
be raised, with interest, immediately.

Before the registration of the deeds-poll, A.
had, in conjunction with his eldest son, execu-
ted a mortgage of the lands in fee, and had
also confessed judgments to a large amount
prior to the mortgage, some of which A. also
charged by mortgage on his life estate. The
aggregate amount of the judgments and the
mortgage in fee exceeded the value of A.’s
life estate. One of A.’s younger children, J.,
presented a petition to sell A.’s life estate
of her appointed share of the £10,000; but
the petition was dismissed at the instance
of the creditors on A.’s life estate. J. then
presented a petition to raise her portion by
a sale of the reversion expectant on the de-
termination of A.’s life estate; but on cause
shown against the conditional order for pay-
ment, by the remainderman and various mort-
gagees and judgment creditors—Held, that the
petition must be dismissed with costs; that
the power given to A. to raise the £10,000 in
his lifetime was a power appendant to his life
estate, and was suspended by the acts of A.;
that it was inequitable for him to exercise it,
as the effect would be to throw exclusively on
the estate of the remainderman the payment
of the interest which accrued during A.’s life-
time, and for the payment of which his life
estate was the primary fund.

That this equity does not apply to judg-
ment creditors ; for, inasmuch as they do not
acquire any security by contract, there is
nothing inequitable in diminishing their se-
curity by a power of charging. When cause
shown by different parties, who represent but
one estate, is allowed, the costs awarded are
to be paid to the person first showing cause.—
dn re Greene’s Estate, 14 1. C. R. 325; 8 I. Jur.
N.S. 348. (1.E.C,)

 

II. 3. Nature and extent of the Relief.

1. In a suit to set aside, after the lapse of
sixteen years, a conveyance, on the ground of
fraud, the relief given against the purchaser
was not extended to his minor child claiming
an equity under articles executed before bill
filed.— Purcell v. Kelly, Beat. Rep. 492. (C.)

2. Though the taking by a barrister of a
bond for past and future professional servi-
ces is to be condemned, the bond will not
be relieved against on grounds of public po-
licy. In administering the obligor’s assets,
the bond was decreed to stand as a voluntary

[EQUITY.]

 

of Relief.

aoe v. Verschoyle, Beat. Rep. 535.

8. Under pressure of a writ, a sheriff ex-
torted moneys from the execution debtor.
The Court ordered him to refund the money,
with interest at £6 per cent.—Creedv. C., 4 I.
E. R. 299; Fl. & K. 396. (R.)

4, When several estates are settled upon
children, they may recover part without show-
ing title to the rest— Thompson v. Simpson, 1
Dr. & War. 459. (C.)

5. A. granted an annuity to a trustee for B.
for life, and in the conveyance personally co-
venanted with B. to pay it. Afterwards, A.
sold subject to the annuity. B. filed a bill
against the purchasers to raise the arrears.
Neither A. nor his personal representative
was a party to the suit. Held, that, though
an obligation to indemnify A. was imposed on
the purchaser, the Court would not thus indi-
rectly enforce this obligation, and thereby in
effect evade the Statute of Limitations.

The account was therefore limited to six
years before the bill was filed—Kyme v. Duig-
nan, 41, KE. R. 562; [s. ¢. sub nom. Harrison v.
Duignan, 2 Dr. & War. 295; 1 Con. & L. 376.

C)]

6. The established, but not inflexible rule
of this Court is, that interest upon the arrears
of an annuity cannot be recovered.

If there is a covenant to.indemnify the an-
nuitant against incumbrances, and incumbran-
cers’ claims have prevented the perception of
the annuity, especially if the covenantor’s acts
have caused this result, a case for damages
under the covenant is clearly shown; and this
Court, to avoid circuity of action, obtains
jurisdiction to give interest upon arrears of
the annuity— Martyn v. Blake, 5 I. E. R. 72;
3 Dr. & War. 125; 2 Con. & L. 65. (C.)

7. A,, entitled to a remainder for life, after
B.’s death, and to a remainder in tail, contin-
gent on his not having any male issue, in
1837, for £4000, granted all his estate and in-
terest, with a redemption clause, on payment
of £9500. All parties thought that A.’s was
only a life estate. B. died in 1841. After-
wards, A., by deed, under the statute, con-
verted his estate tail into a fee. In form, the
mortgage was of all A.’s interest. The mort-
gagee filed a bill praying relief against the
whole. Held, that in this suit, A. could not,
without filing a cross bill, rely on the nature
of the transaction as a defence.

Semble — The transaction is impeachable
within the rules relating to post obit securities,
though A.’s life-remainder was contingent. °

It was admitted that the contract for the
mortgage was only for the life estate; relief
beyond that was waived. The sum was also
secured by a judgment. Held, that relief |
under the judgment, as well as under the
mortgage, must be confined to the life es-
Nature, §c.

tate.—Richards v. Bayly, 6 I. E. R. 545; 1
Jon. & L. 120. (C.)

1. On demurrer to so much of the bill as
prayed an account—Held, that ptf., since he
* could not have full relief save in Equity, was
entitled to the account as consequential to
the relief, after he should have established
his title at law.—Hamilton v. Lyster, 7 I. I.
R. 560. (R.) .

2. In a suit to carry into execution the
trusts of a will, the Court will not merely
declare the parties’ rights, and leave them to
act upon that declaration out of Court.—
Browne v. Martyn, 2 Jon. & L. 333. (C.)

3. A lessee for years, having leased for his
own term, reserving a profit rent, the deed
containing a covenant for payment of rent,
and a clause of distress for non-payment, filed
a bill for a receiver for the arrears. Held, that
this Court will not entertain such a suit on
the mere ground that, by reason of the plain-
tiff having no reversion, his legal remedies are
rendered more difficult to be enforced than
they would otherwise have been.—Cremen v.
Hawkes, 81. E.R. 153. (R.)—[Affd. on ap-
peal; ibid, 503; 2 Jon. & L. 674. (€.)]

4, A judgment creditor cannot have a sale
as against other judgment creditors whose
judgments are prior to August 1840; and
Semble, where his judgment affects a life estate,
and he has an equity to throw other incum-
brances on other estates, he cannot have those
other estates either sold to clear the life
estate.—Edington v. Bloomfield, 9 I. E. R. 115.

C.)

5. Moneys expended under the statutes for
buildings and other improvements on glebe
lands, duly certified by the Bishop, constitute
a good legal charge on a moiety of the benefice.
But a Court of Equity will not entertain a
suit respecting such a charge, wnless there be
special equitable grounds which call for its
interference.— Brooke vy. Horner, 13 I. E. RB.
272. (C.)—[See Brooke v. Horner, 11 I. E.R.
214. (C.)—Revg. 10 I. E. R. 305. (R.)]

6. The conuzee of a judgment appointed
the conuzor one of his executors. The will
was proved by the other executor only—Weld,
that in equity the judgment debt was not ex-
tinguished, but was assets in the hands of the
executor for payment of his testator’s debts ;
and that lands of the conuzor, sold subse-
quently to the rendition of the judgment, were
in the possession of a purchaser with notice,
liable to the discharge of the judgment debt.
Willock v. Dargan. 1 1.C. R. 39. (C.)

7. A contractor agreed with the mayor and
burgesses of , to execute works according
to specifications, by which it was agreed that
upon a certificate being given by the engineer
of the perfect state of the works, the balance
of the price should be paid to the contractor,
-and that no extra work should be allowed for,

 

[EQUITY.]

 

of Relief. 267

except an order in writing had been given by
the engineer. After the works had been pro-
ceeded with, a deed was executed by the
parties, providing “that no allowance should
be made for additional works,” except the
engineer should “ specify that they were addi-
tional works.” Before the execution of the
deed, extra works had been done under order
which did not state that the works which thet
authorised were additional works. No certi-
ficate had been given by the engineer. The
petitioner having been unable to proceed in
an action at law upon the deed, in consequence
of the want of the final certificate, and of the
informality in the orders, filed a cause petition
against the corporation and their engineer,
charging collusion, and praying relief and
payment, or that the legal disabilities should
be removed. Held, that the Court could not
relieve against the informality in the orders.
That the evidence of collusion was sufficient
to give jurisdiction to the Court to compel
payment to the petitioner.—Lezshman v. The
Corporation of Derry, 3 I. Jur. 897. (C.)

8. A. borrowed money from B., and under-
took to assign to B., when requested, two
judgments against C., as collateral security.
Afterwards A. voluntarily assigned them on
record to D., in trust for the separate use of
A.’s wife. It did not appear that she or the
trustees had any notice of the previous agree-
ment. J/Zeld, that notwithstanding the assign-
ment, the voluntary trusts were void as against
B., who was entitled to have the judgments
assigned to him pursuant to the agreement—
his right being an “equity” within the mean-
ing of the 25 G. 2 Cr.), c. 14—Macan v.
Richardson, 61. Jur. 237. (C.)

9. S., solicitor for E., in 1852, purchased in
the I. E. ©., on trust for E., the lands of
F., on which E. had an incumbrance. Credit
was given for E.’s incumbrance in the pur-
chase of F. and other lands, part of the same
estate. In 1854, 8. agreed to take this pur-
chase on himself ; and, in May 1855, agreed to
convey it as a security for a demand which E.
had against him. By deed of October 1855,
reciting an alleged conveyance from the
Commissioners, S. conveyed the lands of F.
to W., who had not notice of E.’s claim; and
the Commissioners, in December 1855, con-
veyed to S., in consideration of money paid
in by E. E. and W. both claimed the rent
due from the lessee of F., who filed an inter-
pleader suit, and obtained an order that E.
and W. should interplead. On motion by W.
that E. should be restrained from setting up
temporary bars—Held, that the Court ought
not to give any assistance to W.’s claim.—
Wall v. Wilkinson, 8 I. C. R. 826. (C.)

10. The owners of a theatre, by deed bearing
date in 1839, made for valuable considera-
tion, covenanted to confirm to debenture hold-
ers the privilege of free admission to the
theatre. The petitioner was entitled to
the benefits of the deed of 1839, but subse-
quently lost his debenture. In 1851, the
268 Nature, Sc.

respondent became lessee of the theatre, with
notice of the deed of 1839. Held, that the
petitioner was not entitled specifically to en-
force against the respondent the privilege of
free admission created by the deed of 1839.—
Malone v. Harris, 11 I. C. R. 33.—Dr. Rep.,
temp. Napier. 655. (C.)

i 1. A., entitled for life, with remainder to
her children as she should appoint, to the
interest in a chattel lease, at a rent of £63,
the legal estate being outstanding in a trustee
for her, sub-demised to B., reserving a larger
rent, and executed a contemporaneous bond,
reciting that A. and her trustee had a power
to dispose. of the interest in the lease, had
agreed to sell and convey to B. all her interest,
for a sum which had been paid; that A. was
unable, until one of her children should
attain age, to make out title; that it had
been agreed between A. and B. that A.
should execute the under-lease; that A.,
within three months after the first of her
children attained age, should make out to
B. a good title; that, until such title was
made out, A. should accept the rent of £63
in discharge of the larger rent. The condi-
tion of the bond was that A. should, within
three months after the first of her children
should attain age, make out a good title
to B. A.did not make out good title ac-
cordingly. The lease having been afterwards
evicted for non-payment of rent, A. brought
an action for the rent reserved by the under-
lease against B.’s assignee. The Court granted
an injunction to restrain A. from proceeding
in the action —Murphy v. Stratton, 13 I. C. R.
423. (R.)

 

Il. 4. When there is a concurrent jurisdiction, or
other remedies exist.

2. When a legal remedy exists to recover a
rentcharge, a bill in Equity to recover it will
not lie, merely because proceeding at Law is
difficult. The rule is, that a party must abide
by the legal remedy which his deed provides
for him, unless the remedy is defeated by
fraud, or rendered insufficient by some con-
ono v. Hughes, Beat.-Rep. 417.

5

3. In annuity cases, the Court of Ch. has a
concurrent jurisdiction with Courts of Law,
and therefore can entertain a suit to raise the
arrears of an annuity, though the deed grant-
ing it enables the grantee to distrain, and the
bill does not aver any substantial difficulty
which prevents him from using that remedy.—
Manly v. Hawkins, 1 Dr. & Wal. 363. (C.)

4. J., a jointress, by articles assigned the
jointure to her son, C., in consideration of his
covenanting to pay the head-rents of the
lands of S., &c., and also giving J. a right of
distress over the lands of B., if he made
default in paying those head-rents. — Held,
that, although the articles provided this legal
remedy, a bill for an account on foot of the
payments made by A. in respect of the head-
rents, and for a receiver, was maintainable.—
Goodwin v. Jefferys, 1 Dr. & Wal. 375. (C.)

[EQUITY.]

 

of Relief.

5. A. lessor made a lease, and died, having
devised the reversion to his widow for life,
or until marriage. She granted a new lease
to the lessee, for a term exceeding her in-
terest, at a reduced rent, and married. Held,
that the parties entitled in remainder cannot
enforce the original rent, as this Court has no
jurisdiction to set up a lease surrendered
by operation of law.

The bill in this capse sustained on the
ground of the multiplicity of actions that
would be required at Law, and because the
defendants themselves had complicated the
title—Nixon v. Robinson, 7 I. E. R. 520; 2 Jon.
&L.4. (C.)

6. This Court has jurisdiction to set aside a
fraudulent sale in the Insolvent Court; but
it will not be exercised if there be a remedy
in the latter Court.

A judgment creditor of 1843, during the
lifetime of the conusor, filed a bill to redeem
a judgment of 1842, obtained for a debt
which was also secured by a lease to the
creditor, reserving a rent which was to be
retained until the debt was paid, and for
a sale, to pay the sum advanced for redemp-
tion and his own debt. Held, that he was
entitled to redeem, and to have an assign-
ment of the prior creditor’s security, but not
toa sale, there being creditors prior to No-
vember 1840.

Semble—A detaining creditor of an insol-
vent cannot file a bill for a sale on foot of his
judgment under 3 & 4 Vic., c. 105.— Maguire
yv. O'Reilly, 9 I. E. R. 835; 3 Jon. & L. 224.

(C.)

7. When a purchaser is in possession of
lands under an executed conveyance, and part
of the purchase-money has been secured by a
bond, the purchaser may come into Equity to
have it employed in discharge of an arrear of
head-rent due at the date of the conveyance,
and is not confined to his remedy at Law on
the covenants in his conveyance.— Woods v.
Martin, 111. C. BR. 148. (C.A.)

8. A mere defect in pleading, though ground
of general demurrer, will not, after verdict,
render a judgment null and void, when a good
cause of action is stated.

A count of the declaration, on which a Co-
lonial judgment was obtained, was framed in
assumpsit, and did not aver the plaintiff's
readiness to perform his part of the contract,
but disclosed a good cause of action for mal-
feasance. JJeld, that a Court of Equity would
not treat the judgment as void, though the
objection to the declaration might have been
good on general demurrer.

But, the time for appealing from the judg-
ment having elapsed, the Court gave time to
the parties to apply to the Judicial Committee
of the P. C. in England for libery to appeal,
or to apply to a Court of Law for liberty to
plead to an action which had been commenced
on the judgment.

Grounds on which a foreign judgment is
examinable.—Jack v. Tease, 121. C. R. 279;
71. Jur. N. 8.9. (R.)
[ESCROW.—ESTATE.]

EQUITY OF REDEMPTION.
See Morteace, V.

 

ERROR, WRIT OF.
See Practicn, Writ.

 

ESCHEAT.
INQUISITION THEREOF,

 

ESCROW.
See DEED.

1. To constitute an escrow, the deed must
be expressly delivered as such. If, at the
time of the delivery, there exists an agreement
that the deed is to operate only on certain
conditions, that suffices to constitute a deli-
very as an escrow.

If a contract is executed, a deft. cannot
impeach it without filing a cross-bill— Nash v.
Flynn, 6 I. E. R. 565; 1 Jon. & L.162. (C.)

 

ESSENCE OF CONTRACT.
See AGREEMENT, IX.

 

ESTABLISHING TITLE AT LAW,
WHEN NECESSARY.

See Tirxe, II.

 

ESTATE.

— Charitable. See Cuarity, III.

— In the East or West Indies. See Company.

— Ecclesiastical. See EccuestasticaL Prr-
sons, IT.

— Of Lunatic. See Lunacy, VI.

— Partnership. See Partners, IV.

— Of Bankrupt. Sce Banxrurrey, XI.

— Real, charge on. See Portions, VII.

— By Settlement. See SetrLemMent, I.

(See also IntEREST IN Property—WILL—
Deeps, IT, 1 & 4.)

 

I. Fes-Srvpre, on Quast Fez.
Il. Estate Tat.

1. How created.
2. Its nature and incidents.
a. Generally—Rights of tenant in tail
and issue in tail.
b. Money, to be laid out in purchase of
estate taal.
c. As between Tenant in tail and issue in
tail, and Remainderman.
d. Barring or destroying entails, and re-
mainders over—Protector of Set-
tlement.

Ti. For Lirz.
1. How created.

°

 

269

2. Its nature, rights, and incidents.
a. Generally.
b. Questions between Tenant for life and
Remainderman.

. Generally.

. Accounts and allowances between then— Of
keeping down Incumbrances, and ap-
portioning fines and other expenses.

3. What timber may be cut— Of waste.

4, How far acts and covenants of one bind
the other.

5. Apportioning rent between Remainderman
and the representatives of the Tenant
Sor life.

6. What renewals of Leases, §c., shall come
to Remainderman’s benefit.

8. Tenancy in tail after possibility of issue ex-
tinct.

4. Tenancy by courtesy.

noe

. For Years, at WILL, AND FROM YEAR
To YEAR.

V. Pur autre Viz.
VI. For Joint Tenancy.

1. How created.
2. Its nature and incidents ; severance of.

VII. For Tenancy In common.

. How created.
. Its nature, rights, and incidents.
. Partition.

VII. Rea.

. Generally—its nature and incidents.
. Charge on lands.
a. Generally.
b. How constituted.
1. In general.
2. For payment of debts.
3. For payment of legacies, portions,

whore

be

C.
c. Paying off—how payable—what fund
liable to pay.
d. Keeping down incumbrances.
e. How discharged, extinguished, or
merged.
f£. Incumbrancers’ Rights.
. Lands agreed to be purchased.
. Lands agreed to be sold.
. Exoneration of. See Estate, IX.

OU OF

TX. PEersonay.
1. Exemption of from debts.
2. Limitation of personal property.
X. By Imprication
XI. By Purcwase.
XIL By Duscent.
XIII. Lzeat or Equrrasre.
XIV. ExcHance or.

 

I. Fee-Surete Estate, on Estate in QUASI
Fer.

By the Wills Act, 1 Vic. c. 26, sec. 28, a
devisee, after Jan. 1, 1838, of real estate, passes
the fee, or other entire interest, without words
of limitation, unless a contrary intention ap-
pear.
270 In Fee, or

By sec. 29, the words, “ die without issue,”
&c., shall be construed to mean “die with-
out issue living atthe death.” [See also ss. 31,
32, 83, and 34.]

As to the descent of estates pur autre vie,
where no special occupant named, see sec. 6.

As to the law of inheritance, see 3&4 W. 4,
ec. 105.

As to payment of debts out of real estate, see
11 G. 4, and 1 W. 4, ¢. 47, and 3&4 W.4,c.
104,

By 22 & 23 Vic., c. 35, sec. 14 to 18, any
devisee in trust of real estate charged with
debts or legacies, may raise money for pay-
ment thereof by sale or mortgage of the lands,
and purchaser not bound to see to application
of purchase money. :

And by 23 & 24 Vic. c. 145, further powers
are given to trustees for sale.

1. Before the 1st Jan. 1888, V. devised his
“estate and interest” in farms of which he
was seised, for lives renewable for ever, in
trust, after paying annuities, &c., to permit
his nephew A. to enjoy the same for life;
and from his decease, to permit such son of
his as should attain twenty-one to enjoy said
lands; on failure of such remainder, to his
nephew B.., for life, remainder to his first son
as before. Held, that a son of A., who at-
tained age and died, in the life of his father,
took the absolute interest in these premises.—
Kirby v. O’ Hea, 21. E. R. 424. (E.E.)

2. In 1810, V. seized of the lands of D.
under a lease to him and his heirs, pur autre
vie, made his will commencing thus :—“ As to
such estate and wordly substance as I am
possessed of, or entitled to, I dispose thereof
in manner following.” He then devised D.,
and all his estate and interest therein, to S.
and his heirs, upon trust to apply the rents in
payment of debts until they were discharged ;
and after they had been discharged, to permit
his heir-at-law to take thereout £40 a-year for
three years only; and, subject thereto, to the
use of his sons, T. and J., share and share
alike, as tenants in common, and not as joint
tenants. He also devised other lands for the
benefit of his other sons and their families,
by apt technical words; and bequeathed the
residue of his personal property to his heir-
at-law. There was not amy residuary bequest
of the realestate. Jfeld, that T. and J. took
the absolute interest in the lease of D.—
[ Challenger v. Sheppard, 8 T. R.597, and Knight
v. Selby, 3 M. & G. 92; 3 Scott, N. S. 409,
observed upon. ]—Bradshaw v. B., 5 I. E. R.,
310. (E.E.)

38. In 1802, V. devised lands to his son R.
for life, with remainders to his first and other
sons in tail male, and in default of such issue
to the daughters of R. in such shares as R.
should appoint; in default of appointment,
share and share alike; and if but one daugh-

[ESTATE.]

 

Quasi Fee.

ter, then to such only daughter, her heirs ard
assigns, for ever. There was issue, one daugh-
ter. Held, that immediately upon her birth
she became seized in fee-simple of a vested
estate, liable to be divested by an appoint-
ment; or to open and let in the estates of an
after-born daughter of R.— Wallace v. W.,
2 Dr. & War. 452; 1 Con. & L. 491. (C.)

4. By a settlement of 1801, freehold lands
were settled by T. on his eldest son, J., and
his issue, in strict settlement, with an ulti-
mate remainder to H., the second son of the
settlor in fee. By the same settlement, other
lands, partly freehold and partly chattel, were
settled on T., for life, and from and after his
death “to the several uses, intents, and pur-
poses as are hereinbefore declared,” respect-
ing the first set of lands, and subject to which
those lands were in the previous part limited
to the use of J., “to and for the use and
benefit of the said H., subject to the pro-
visions hereinbefore made for the issue of
the said marriage.” Held, that the second
set of lands were settled to the same uses as
the first, and that H. took an estate in both
lands in fee.— Garde v. G., 3 Dr. & War. 435;
2 Con. & L. 175. (C.)

5. By a will made in 1831, reciting that the
testator was entitled to a remainder in fee
expectant on the death of his wife, he de-
vised it after the death of his wife, to his son
W. for life; and, after his decease to the
child or children of W., for default of such
issue to his own right heirs. By a codicil he
revoked the devise to W., and gave to his
wife and grandchildren (issue of his son J.)
what he originally allotted to W. Held, that
the remainder in fee passed by the codicil to
the wife and grandchildren.

The gift in the will to the children of W.,
in this case was revoked by the codicil.—
Madden v. Kirwan, 71. E.R. 570. (C.)

6. A father conveyed lands by lease and
re-lease to his son, in consideration of natural
love, and ‘“‘to entitle him to a wife and for-
tune zow in contemplation,” to hold “to the
separate use” of the son, “his heirs and as-
signs for ever.” It was not proved that any
particular marriage was in contemplation at
the date of the deed. The son survived the
father, but died unmarried. Held, that the
deed vested the fee-simple, vested in him
absolutely —Alleyne v. A., 8 I. E. R. 493; 2
Jon. & L. 544. (C.)

7. By deed of 1809, between A. and B., De-
puty Barrack-master General, reciting that a
part of A.’s estate had been fixed on for the
site of barracks, and that. it was necessary
that a liberty for the troops for exercising
should be granted on another part; A. con-
veyed nine acres for ever for the site of the
barrack; and also granted, let, and demised
unto B. 100 acres, to hold to him and his suc-
cessors for ever, for the purpose only of exer-
cising thereon, in trust for his Majesty, his
heirs, and‘successors, reserving a rent of £150.
There was a covenant for the payment of the
In Fee, or

rent, and a power to the lessor to resume the
100 acres, upon giving another piece of ground
in lieu of it. After the signatures, it was de-
elared in the attestation clause that nothing
in the deed should be construed to deprive A.
or his heirs of the fee and inheritance of the
full and free enjoyment and possession of the
100 acres, “the liberty of exercising thereon
being only intended to be granted.” <A. in
1818 demised the 100 acres to C. for lives re-
newable for ever, subject to the perpetual
right of exercising thereon, &c. In 1823, C.,
being a trader, upon his marriage covenanted
that whatever estate and property, real or
personal (sic), should be charged with an an-
nuity for his wife, in the event of her surviv-
ing. C. died in 1842, leaving his widow still
surviving. C.’s interest in the lease was sold
under the decree, and the rental stated—“the
lands were subject to a perpetual right to be
used by the military as an exercise ground.”
Held, confirming the Master’s report of bad
title, that the deed of 1809 was not a mere
grant of an easement in the 100 acres, but
was an absolute conveyance of the land, the
fee of which was, by the 7 G. 3, c. 6, vested
in the Crown, without livery of seizin.

Though a conveyance to one and his suc-
cessors gives but a life estate, and in convey-
ances operating under the Statute of Uses,
the seizin must be commensurate with the
use, yet, Semble—this does not apply to a case
of trust.

Held also, that it being doubtful whether,
upon the true construction of the covenant in
the deed of 1824, the lands were bound there-
by, the Court would not compel the purchaser
to take a title subject to so serious a question.
White v. Baylor, 10 I. E. R. 48, (R.)

1. Lands were sold as fee-simple. The pur-
chaser, after the sale, for the first time found
that, though held in fee-simple, the owner was
bound to raise and maintain the fences and
keep the drains and watercourses clear, &c.—
Held, that the purchaser could not be com-
pelled to accept a title where the enjoyment
of the estate was subject to such qualifications.
—Larkin v. Lord Rosse, 10 I. E. R. 57. (R.)

2. Since the Statute of Quia Emptores there
cannot be a grant inf. f. A rent reserved on
a grant in fee, if accompanied by a power of
distress, is a rentcharge, and as such a bill will
lie for recovery of it.—Brady v. Fitz Gerald, 11
I. E. R. 55. (R.)

8. In 1801, V. devised to his wife his lands.
By a separate clause he gave her chattels, and
added; “fourthly, I order my wife to pay the
following legacies,” which he enumerated. He
made her and another executors. eld, that
the legacies were charged on the lands, and
the wife took the fee.

Neither the word “thereout” or “ paying”
is required to make the payment of a legacy a
condition so as to give the devisee the fee in
lands charged with it.

The costs of asuitin the nature of an eject-
ment bill to recover the devised property, on
a construction of a will, though doubtful, are

[ESTATE.]

 

Quasi Fee. 217

not within the rule in administration suits,
that they come out of the estate.—Johnson v.
Brady 111. E. R. 386. (C.)

4. A., being entitled, under a f.f. grant, to
a farm called K., by will, executed long before
the passing of the Wills Act,7 W.4,and1Vic.,
c. 26, made a yearly provision, consisting of a
certain quantity of oatmeal, potatoes, and
turf, for his wife, and directed that it should
be paid by his sons B., C., and D., in certain
proportions. Two subsequent and totally dis-
tinct clauses of his will were as follows :—
“Fourthly, I bequeath to my son C. one-
half of that farm called K., he paying yearly
£2, 18s, 6d.” “Sixthly, I bequeath to my son
D. the other half of K. aforesaid, he paying
yearly £2. 13s. 6d.” Held, that the fee-simple
in the two moieties passed by these devises.—
M‘Naghten v. Boyd, 2 1. Jur. N. 8. 177. (R.)

5. A., seized of premises of a freehold
tenure, devised them to B. “to be kept in
trust for C., that is, B. is to let the premises,
and to give the rent to my son, C., for his
support.” Held, that C. took an absolute
estate. :

. That the 1 Vic., c. 26, put real and personal
estates on a parity.—Jalcolmson v. M., 3 I.
Jur. 150. (C.)

6. Lands, held under a lease for lives renew-
able for ever, were conveyed, for all the te-
nant’s estate, to trustees, their heirs and
assigns, for the lives in the lease. The con-
veyance contained a declaration that the
names of the trustees were used as trustees
for B.; and that the grants therein con-
tained were for his sole use and benefit, and
for no other use, intent, or purpose. Held,
that B. took the whole equitable interest in
quasi fee.—M' Clintock v. Irvine, 101. C. R. 480;
51. Jur. N.S. 317. (C.) ;

7. Bequest, in 1847, of portion of a chattel
real to “my son J., and, if J. dies without a
lawful male heir, his part of the land falls to
his brother R. I also order that the part of
the lands which I bequeath to my son J. is to
fall to his youngest son, without any incum-
brance.” Held, that J. did not take an abso-
lute interest in his portion of the lands, and
that the gift over to R. was not too remote.—
Dodds v. D..10 1. C. R. 476; 5 I. Jur. N.S.
357.—[Affd., 111. C. R. 374; 6 I. Jur. N.S.
75. (C.A.)]

8. A., seized in fee, conveyed lands to B.
and C., and the survivor of them, and the
heirs of the survivor, to the use of A. for life,
and, after his decease, to the use of B.and C.,
and the survivor, and the heirs of such sur-
vivor, upon trust to permit D.to receive a
jointure, and after the death of D. then to the
use of the right heirs of A. Held, that B. and
C. took a legal estate in fee in remainder.

A. devised all his property to his wife; con-
tracted to sell the lands; and died. Held,
in a suit for specific performance by the pur-
chaser, that the heir-at-law of A. was not a
necessary party to the conveyance, as he had
272 In Fee, or

no legal or equitable estate in the lands, nor
any right to institute a suit to set aside the
contract, having regard to the will of A. de-
vising all his property to his wife, who, if the
contract was set aside, would be entitled to
the lands; and if it was not set aside, would
be entitled to the purchase-money.—[ Roberts
y. Marchant, 1 Ph. 370, explained].—Fowler v.
Lightburne, 111. C. R. 495: 6 I. Jur. N.S. 93.

.)

1. B., seized of real estate, by will, in 1849,
bequeathed to her brother-in-law, A., every-
thing she might be possessed of, with the ex-
ception of her furniture; and appointed him
her sole executor and residuary legatee. Held,
that the real estate passed to A. under the
will.—In re Gyles’ Estate, 14 I. C. R. 311; 81
Jur. N. 8. 315. (L.E.C.)

2. V., entitled to leaseholds and also to fee-
simple property, devised the latter on trust for
his eldest grandson, B., for life, if he attained
twenty-three years of age, remainder to B.’s
son in t. m.; if B. did not attain twenty-three,
then on trust for whichever of V.’s younger
grandsons first attained twenty-three, for life;
like remainder to Ais sons; remainder over.
After directing that several legacies and annu-
ities should be paid out of his leasehold estates,
V. bequeathed his residuary estate (which in-
cluded his leaseholds) to his seven younger
grandsons, share and share alike. B. having
attained twenty-three, died, without issue, in
1849. In 1834, by deed, reciting that V., by
will, after devising several legacies, had be-
queathed the residue of his property, com-
prising (amongst others) leasehold interests to
his seven younger grandsons; and that C., one
of V.’s grandsons, was entitled under the will
to one-seventh of V.’s residuary estate, con-
sisting of (amongst others) the lands therein-
after mentioned; C. granted D. all that one-
seventh of V.’s residuary estate, and in par-
ticular all his estate and interest in his one-
seventh share of the leaseholds (which were
specifically enumerated), “and all the estate
and interest of him, the said C., therein, or in
any other lands which were part of the resi-
duary estate of the said V.,” to have and to
hold the leaseholds “and other the share
which the said C. is at present entitled to of
any lands or tenements, or any other property
part of the residuary estate of V.,” unto D.,
his heirs, &c. J7eld, that C.’s contingent re-
versionary interest in the fee-simple estates
passed thereunder.—In re Rorke’s Estate, 9 I.
Jur. N.S. 409. (C.A.)

3. In 1709, a public company conveyed lands
in fee to D., his heirs and assigns, subject to a
rent which D. granted to the company, their
successors and assigns, provided that if D.,
his heirs or assigns, should at any time there-
after pay £1000 to the governor for the time
being of the company, or to the other person
or persons who should at that time be em-
powered to receive the rent, the rent should
cease ; and that so often as D., his heirs, exe-
cutors, &c., should pay to the governor, com-
pany, and their successors or assigns, any

[ESTATE.]

 

Quasi Fee.

sum not less than £100 over and above the
rent and arrears then due, the rent should be
lessened proportionably to the sum so paid.
In 1716 the company assigned the rent to
E. and his heirs, subject to the proviso for
redemption. In 1840, B., who was then en-
titled to the rent, by a deed reciting the pro-
viso for redemption in the deed of 1709, and
the assignment of 1716 to E., assigned the
rent to A. and his heirs. A. died intestate in
1849, whereupon the rent descended to his
heir. In 1862, the owner of the lands gave
notice to reduce the rent. Held, A.’s heir,
not his administrator, was entitled to the
£1000,.—Jn re Graves, 15 I. C. R. 357. (R.)

4, By marriage settlement, the equitable in-
terest in lands held under a lease for lives
renewable for ever was conveyed on trust
that, after the death of A., the settlor, they
should be divided into two equal parts, and
that the trustees should stand seized of one
moiety in trust for B., the intended wife
(a daughter of A.), for life; and, after her
death, if there should be issue of the mar-
riage, on trust to pay and apply all and
singular that full moiety amongst those child-
ren, share and share alike, the yearly rents,
issues, and profits, and the interest and pro-
duce thereof, to be paid to and amongst them
until the youngest should attain age, and
then to divide all that moiety of the estate
and property and principal sum and sums
of money, equally between and amongst them;
and, if B. died without issue living at her
death, then to apply that moiety to the use
of the intended husband for life; after his
death, to the use of C. (a sister of B.), her
heirs and assigns; and, if she died without
issue living at her death, to the use of A.,
his heirs, executors, &c. Held, that an only
child of B., by this marriage, took the abso-
lute interest in a moiety of the lease for lives
renewable for ever.

(By the Ld. Ch.) :—That, in a deed, words
of limitation are not necessary to pass the
entire interest in a lease for lives renewable
for ever, if other words are used or declara-
tions made which convey the lessee’s whole
estate, or which declare the trusts of the
whole estate vested in trustees.—Brenan v.
Boyne, 16 I. C. R. 87. (C.A.)—[Revg., 15 I.
C.R.189. (R.)]

5. V., seized of lands, under leases for
lives, devised in 1824 all his freehold leases
and interest whatsoever to trustees, and the
heirs of the survior, in trust, after payment of
head-rents, to apply the rents among his three
daughters during their respective lives, in
equal shares, for their separate use; and if any
of them should die leaving lawful issue, then
in trust, as to her share, for the use of such
issue as she should by deed or will appoint;
and in default of such appointment to the use
of such issue equally, share and share alike;
and the will then contained several other
limitations, in similar terms, over to other
relations. Held, that the legal estate was de-
vised to the trustees during the existence of
the entire series of limitations, and that V.’s
How

daughters took equitable estates in quasi tail
in their respective shares.— Sherwin v. Kenrty,
161.C. R. 138. (R.)

1. Lands held under a lease for lives re-
newable for ever were conveyed by deed to a
trustee, who by asubsequent deed declared that
the previous assignment had been accepted by
him “to the uses and for the trusts following—
upon trust to permit A. and B., his wife, to
hold one-third of the lands during their joint
lives and the survivor, for the life of such sur-
vivor; and after the death of the survivor to
permit the said one-third to be held by such
children or child of A. and B. as should be
living at the death of the survivor, in such
shares and proportions as A., in his lifetime,
or B., if she survived, should appoint (if only
one child such child to take the entire), and as
to one other third of the interest in the said
lands, upon trust for C., his heirs and assigns,
for ever; and as to the remaining third of
the interest of the said lands, upon trust
for D., his heirs and assigns for ever;
and to no other use, intent, or purpose what-
soever.” Held, that as it was manifestly in-
tended to dispose of the entire interest in
the lands by this deed, the absence of words of
inheritance in the trust to the children of A.
and B. did not prevent A. from appointing to
one of the children the quasi fee of the lands.—
In re Bayleys Estate, 16 1. C. R. 215. (C.A.)

2. By marriage settlement, fee-simple lands
were conveyed in trust for D., for life; remain-
der to the children in fee, as D. should ap-
point; in default of appointment, share and
share alike. D. devised the lands in trust for
his second son, for life; remainder to D.’s
grandson, in tail male; in default of such is-
sue, to D.’s third son, for life ; remainder to
his son, in tail male; and similarly to the
third and fourth sons; and directed each of
them to execute to the trustees of the mar-
riage settlement a release of every claim or
demand thereunder. The younger sons all
elected to take under the will, The L. E.
Court, on petition by a judgment creditor to
sell the estate of one of those younger sons,
applied the cy-pres doctrine, and Held, that
the estates were estates tail. :

This Court Held, that that doctrine was in-
applicable, and that the electing sons took
only life estates.—Dennehy’s Estate, 11 I. Jur.
N.S. 21. (C.A.)

3. In 1825, a testator, V., bequeathed “ all
his property” to his executor, and did thereby
nominate as his executor “for the pur-
pose of paying the following bequests, first
paying debts and funeral expenses.” He then
bequeathed the hill of Knocknarea for ever to
his illegitimate son Thomas, to whom he gave
full power to will and dispose of same if he
have a family, “but if he shall die without
issue,” then to go to the use of testator’s (ille-
gitimate) daughter, Jane, without further
words of limitation. At the close of the will,
V. appointed W. his executor. Held, that W.
took the fee in Knocknarea, and that Thomas
took an estate tail; the limitation over being,
not an executory devise, but a remainder;

 

[ESTATE TAIL.]

 

Created. 273

and that the limitation to the executor con-
ferred the fee on Jane on indefinite failure of
issue of Thomas, Jane taking the entire estate
remaining in the executor.

That W. was the executor and trustee whose
name V. had intended to fill up the blank
with.— Ormsby v. Anderson, 11 I. Jur. N. 8. 66.

(C.)

 

II. Esrate Tatu.
(See also Drrps II. 4—WIt.)

1. How created.
2. Its nature and incidents.
a. Generally: rights of Tenant in tail,
and Issue in tail.
b. Money to be laid out in purchase of
estate tail.
c. As between Tenant in tail, and issue
in tail, and Remainderman.
a. Barring or destroying entails and
remainder over: protector of set-
tlement.

 

IL. 1. Estate tail: how created.

4, A., tenant for life, and R., his son, and
first tenant in tail, suffered a recovery, and
declared the uses to be to the use of N., his
heirs and assigns, until the principal sum
of £4000, with interest, should be paid to N.,
his executors, &c.; and when and as soon
as the £4000 should be paid and satisfied,
then to the uses of a settlement of 1737.
Those uses were, to A.’s use for life ; remain-
der to his first and other sons in tail. Held,
that the declaration to the uses of the settle-
ment of 1737, though void as a limitation of
the legal estate, was a good declaration of
the trust estate-—Stoney y. Saunders, H. & J.
519. (E.E.)

5. Lands were devised in 1767 in trust for
A. for life; remainder in trust for her issue
male and their issue male, in such manner as A.
should appoint ; in default of such issue male,
in trust for R. for life; remainder in trust for
such of his issue male and their issue as he

should appoint ; in default of such issue, over.

Held, that R. took an estate tail—Zrwin v.
Cuffe, Hayes, 30. (E.E.)

6. A post-nuptial settlement conveyed lands
to trustees to A.’s use for life; remainder
to preserve, &c.; remainder to the use of B.
(eldest son of A.) and his heirs, and for de-
fault thereof to the second, third, &c., and all
and every the other sons of A. severally in t.
m., &c. B. died without issue. Held, that,
since B. was only tenant in tail, upon his
decease without issue male, the second son
was entitled under the limitations to only an
estate in t. m.. and did not take as B.’s heir-at-
law.— Wall v. Wright, 1 Dr. and Wal.1. (C.)

7. V., by will, in 1817, directed his trustees
to call in a certain sum, and invest it in pur-
chasing freeholds in lands of a clear estate of
inheritance, for the use of his son A. for life ;
after his death, to the use of his first and
other sons, according to seniority of age, &c. ;
and, if A. should die without issue male, then

35
274 How

in trust for V.’s second son, B., and the heirs
male of his body, according to seniority of
age, &c. V. desired that his said sons and the
several persons who should be in possession
of such estates, should have power to make
leases, not exceeding three lives or 31 years,
at the fullimproved value. Held, that A. was
entitled to an estate tail in the lands to be
purchased. Herbert v. Blunden, 1 Dr. & Wal.
78. (C.)

1. There is no doubt, that words in a will,
giving an estate to a party for life, and, after
his decease, to the heirs of his body, with
power to him to appoint it among them in
such shares as he shall think proper, ‘give
them an estate tail.

If a testator says he devises to a man, for
life, and, if he have no issue, remainder over,
it is necessary to give an estate tail to the
parent; for, as the estate is not given over
until failure of his issue, and there is no gift
to the issue, there is no other mode of effec-
tuating the intention but by giving an estate
tail to the parent.— Crozier v. Crozier, 5 I. E.
R. 415. (C.)

2. An estate was settled by deed upon A.,
B., and C. for life, as tenants in common;
remainder to their first and other sons re-
spectively in tail male, remainder to their
daughters respectively as tenants in common,
in tail ; remainder, “in case one or two of the
said A., B., and C. should die without issue of
her or their bodies, then as to the share of
such one or two dying without issue, to the
use of all and every the daughters of such
survivors, as tenants in common in tail.”
Held, that the limitation to the daughters of
the survivor was a good contingent remain-
der.— Cole v. Sewell, 2 Con. & L. 344.; 4 Dr.
and War.1; 61. E. R. 66. (C.)—[See Stack-
poole v. S. 6 1. E. R. 18; 2 Con. & L. 489.
(C.)]

3. Lands were settled upon uses to C. for
life, remainder to such one or more of his
sons as he should appoint; in default of
appointment, to his first and other sons in
tail. C. appointed the lands to his son D.
Held, that D. took the lands under the ap-
pointment of his father, precisely in the same
manner as if, instead of the power of appoint-
ment given to his father, the lands had been
limited to the son, D., by the settlement.—
Coote v. O'Reilly, 7 I. E. R. 356; 1 Jon. & L.
455. (C.)

4, V., in 1819, devised lands to his son A.,
and his heirs for ever; if A. should die with-
out lawful issue, desired that after his death
all the property should go to his daughter and
her heirs; and, if both A. and the daughter
should die without lawful issue, desired the
property should go to his brothers. Held, an
estate tail in A.; not a fee-simple with an ex-
ecutory devise over.—Jones v. Ryan, 9 1. E.R.
249. (C.)

5. A., seized in fee, devised in 1763 one
moiety to M. for life, remainder to her first

[ESTATE TAIL.]

 

Created.

and other sons in t. m.; for want of such
issue, remainder to her issue female, and the
heirs of their body, with power to M. to charge
£1000 for younger children ; for want of such
issue, remainder to I. for life, with precisely
similar remainders to her issue. The other
moiety was limited to I. for life, and to her
issue; then to M. and her issue, in same way
as the first moiety was limited; for want of
issue of M. and L, the whole to L. for life,
with remainders over. .

By codicil, reciting M.’s marriage with D.,
A. devised one moiety to M. for life ; remain-
der to M.’s issue successively, and the heirs of
their bodies “as in said will limited, and for
default of such issue to D. for life, with re-
mainder over, as in said will limited.” The
codicil also contained this clause :—“I ratify
my will with respect of my real estate in every
particular not hereby altered. The only al-
teration I intend hereby is, that if my sister
Margaret should die without issue, or failing
issue, that the said D., her husband, or any
other husband she may have, should hold a
moiety of my estate during his life.” After
D.’s death, M. suffered a recovery to the use
of herself, her heirs and assigns for ever.
Held, that, under the limitations in the will,
M. took only a life estate, not an estate in
t.f., after the estate in t.m., to her first and
other sons :—that the words “in default of
such issue to D.” &c., in the codicil, afforded
no ground for implying an estate tail in M.,
the word “such” having reference to the
devise in the will to her sons in t. m., and to
her daughters in tail general :—that the de-
vise to D., or any future husband, if M.,
should die without issue, or failing issue, was
to take effect on the determination of the
express limitations in the will to M.’s first and
other sons in t.m., and to her daughters in
tail general; and not on a general failure of
M.’s issue; and that therefore M. did not
take an estate tail by implication —Hamilton
v. West, 101. E.R. 75. (R.)

6. V., in 1825, devised the lands of A. to
his son §., during his natural life, sans waste,
remainder to trustees to preserve, &c.: and
from and after the decease of S., to the use of
the heirs male of §. in such shares and pro-
portions, and subject to such charges as §.
should by deed or will appoint; and if S.
died without issue male, to permit his second
son, J., to receive the rents for his life, sans
waste ; remainder to trustees to preserve, &c. ;
and from and after the decease of J., to the
use of the male children of J., in the same
manner and with the like power of ‘appoint-
ment, and charging, as he had thereinbefore
devised the same to the male children of S.;
with remainders over in the same terms to V.’s
third son, T., remainder to his male children,
remainder to his own right heirs. V. then
devised the lands of B. to his son J. for life,
with remainder to his male children as he
should appoint; and in default of appoint-
ment, to the first son of J., and the heirs male
of his body; remainder in like manner to the
second, third and every other son of J.; and if
J. died without issue male, to S.; to be dis-
How

posed of among his issue as he should think
proper; and he directed that if S. should die
without issue male, and that in consequence
thereof the lands of A. should descend to his
second son, J., and his issue male, then the
lands of B. should immediately descend and
go to T. and his issue male; and he gave
powers‘ of leasing to 8., J., and T., as they
should respectively become seized of the said
estates. eld, that S. took an estate tail in
A.—Phillips v. P., 10 I. E. R. 513. (R.)

1. Devise, in 1832, to testator’s son, A., and
to his issue, male and female, in such shares,
manner, and proportions as he might by deed
or will appoint, with power to jointure a wife ;
and if A. died without lawful issue, then to
testator’s three daughters equally, share and
share alike, as tenants in common, and not as
joint tenants, and to their heirs and assigns.
Held, that A. took an estate tail— Whitsitt v.
Thompson, 12 I.E. R. 119. (C.)

2. M., entitled, under a deed of partition,
to the lands of P. and B., held with other
lands under a lease for lives renewable for
ever, and being also owner of the lands of R.,
held likewise for lives renewable for ever,
devised to trustees all his freehold property
(including the above) in the county of Louth,
upon trust to permit and suffer his daughter,
R., to have and receive the rents and profits
during such term, time, and space as she
should remain unmarried, or marry with the
consent of one or both of his said trustees ;
but if she should not marry with such consent,
M. directed that she should only receive £60
a-year during life, on her own receipts; and
that the residue of his said property, over and
above his wife’s marriage settlement, should
be vested in government stock as often as it
should amount to £10, or upwards; and go
and remain to the use and benefit of the issue,
if any, of his daughter lawfully begotten,
share and share alike, on such issue attaining
age ; and, if no issue, M. bequeathed such re-
sidue to his right heirs; and in such case of
his daughter dying unmarried or without law-
ful issue, M. devised unto his nephew, W.,
the lands of P., during life; to D., fourth son
of W., his heirs and assigns for ever, and to
R. M., second son of the said W., and his
heirs and assigns for ever, the lands of B.,
paying thereout, by two instalments of £25
yearly for two years, £50 to his nephew, H.

M. died without having altered or revoked
his will, and in 1839 a renewal of the original
lease, in which P. and B. were comprised,
was granted to J. M. in trust for himself and
the several parties entitled under the partition
deed. To that renewal R. M., and the other
c. q. trusts, were made parties; and, their
several interests being recited therein, those
of R. M. were described in the following
terms :—“ The said R. M. claims under said
deed of partition, as heiress-at-law of the said
D., to be entitled to or beneficially interested
in the lands of P. and B.” The deed contained
a proviso that nothing therein should be taken
to extend to enlarge the estate or interest of
any person in or to the premises, otherwise

[ESTATE TAIL]

 

Created. 275

than as they were lawfully entitled under the
original lease and the renewals thereof ; and
that the party executing the renewal should
not be subjected to damages or costs by reason
of the execution thereof, if it should appear
that any person or persons had a title to such
renewal paramount to that of J. M. The
deed also contained a covenant on the part of
the c. q. trusts, their heirs and assigns, to per-
form and keep the covenants on the tenants’
part in the original lease. Held, under the
provisions of the will, R. M. took an estate in
quasi tail. That the quasi entail was barred
by the renewal to the trustee.—In re Af‘Neale’s
Estate, 31. Jur. N.S. 212. (L.E.C.)

8. Lands were limited to the use of one for
life, remainder to the use of his eldest son,
and the heirs male of such eldest son, the
elder tobe always preferred before the younger;
in case of failure of issue male of the eldest
son, remainder over. Semble—The eldest son
took anestate tail_—Smith v. S., 5 I. C. R. 88.

&.)

4. V, seized in fee of, among others, the
lands of M., devised, in 1801, M. to his daugh-
ter Martha, for life, remainder to her first and
other sons in tail male; remainder to his
daughters, as tenants in common in tail ge-
neral; with a series of successive remainders
to several persons in tail, and an ultimate
remainder to D. in fee. Ina subsequent part
of the will, A. devised M., together with
others, “unto my said daughter Martha, and
the heirs of her body lawfully begotten, and
for default of such heirs, to the use of all
other the heir and heirs herein named, and
for the uses mentioned, for ever.” Held, that
the two sets of limitations of M. were not
irreconcilable; that Martha took an estate in
tail general in remainder, after the estate
devised to her daughters as tenants in com-
mon in tail, and before all the estates and
uses limited to other “heirs” or devisees,
according to the ultimate disposition of the
will—ZJIn re Frew’s Estate, 71. C. R. 95. (1.E.C.)

5. In 1823, V. devised all his real estates to
H., with remainder to his sons in strict settle-
ment; and “in default of such issue male in
H., then to the use of my nieces R. and F.,
and the survivor of them, for the term of their
natural lives, as tenants in common, and not
as joint tenants, and from and after their
decease to the use of their first and every
other son and sons lawfully begotten on their
bodies, and the heirs male of their respective
bodies successively, in equal proportions ; the
elder of such sons of each of my said nieces,
and the heirs male of their bodies being always
preferred, and to take before the younger and
the heirs male of their bodies ; and for default
of such issue male, then to the daughters of
said J., R., and B.; and for default of such
issue, male or female, to the use of my right
heirs male for ever.” Held, that R. and F.
took, as tenants in common for life, with re-
mainder as to the share of each to her sons in
tail, with immediate remainders to her daugh-
ters in tail— Conmee v. Taaffe, 12 1.C. R. 338;
276 How

61. Jur. N. §. 232. (C.)—[Revd., 10 H. Las.
Cas. 64.—See Taaffe v. Ferrall, 101. C. R. 183.

(C.A.)]

1. By settlement, executed before the mar-
riage of A., freehold lands were settled upon
trust for the younger sons of the marriage
successively in tail male. The settlement
contained a proviso “that if, after the death
of A., any of the aforesaid younger sons shall
become an eldest son, and, by the death of an
eldest brother without issue male, become
the heir male of the body of the said A.,
then, and so often as such case shall so hap-
pen, after the death of said A., the trust
for such younger son shall become void, and
the trust of the said premises shall go and
remain over, as if such younger son becoming
such heir male was dead without issue male.”
Held, that a quasi estate tail vested in the
second son of A. immediately on his birth,
and was not divested by the death of the
eldest son in the lifetime of A.—Jn re Frend’s
Estate, 12 I. C. R. 367. (L.E.C.)

2. V., owner in fee, by will, in 1836, left his
third son, J., the lands of G. for ever; “but,
in case he should die unmarried, or without
lawful issue, in that case he may will one-half
of it as he pleases; and the other half to go
share and share alike between my surviving
sons or'their families.” The will ended in these
words :—“ All the bequests given to my son
R., my grandson M., son to my son J., and
also my other three sons, T., C., and H., of my
property, no part of it shall or will be liable,
or pay any debts they may contract ; nor sell
or mortgage same; but always go in the male
line free of any debt of theirs.” T. died with-
out issue, having executed a disentailing deed
of the lands of G., and devised them to B. and
his heirs.— Held, that T. took an estate tail
under V.’s will.—In re Thompson's Estate, 14 I.
Cc. R. 517; 9 I. Jur. N.S. 1938. (L.E.C.)—
[Affd., 16 I. C. R. 228. (C.A.)]

3. Devise, in 1819, in trust for the testator’s
mother for life, then to his brother A., and
his assigns for life; then to permit such one
child of A. and the heirs of his or her
body, to receive the rents as A. should
by deed or will appoint to; in default of
appointment, to go to A.’s eldest son and
the heirs of his body; and, if no son, to
and amongst A.’s daughters, and the heirs
of their bodies, share and share alike; and,
in default of such issue, in trust for B., C.,
and D., successively for their lives; with
similar remainders to them respectively as
to A.’s sons and daughters; remainder over
in fee, and a residuary devise to A., who
by will appointed to his eldest son, who died
in A.’s lifetime, and without issue. Held,
that A. took an estate tail in remainder after
the estate devised to his eldest son in default
of appointment.

That the words “in case there shall be
a son,” did not give an estate by implication
to A.’s other sons.—Bell v. B., 15 I. C. R. 517.

R.)

4. By executory articles for value, it was

[ESTATE TAIL]

 

Created.

agreed between the settlor, his wife, and
their sons, that his estates should, after his
death be limited to, and settled upon his
eldest son, and that son’s issue; with re-
mainder, in the event of that son’s dying
without lawful issue in the settlor’s lifetime,
to each of the settlor’s other sons in suc-
cession, according to seniority; with an ulti-
mate remainder to the settlor’s right heirs.
The settlor’s eldest son survived him, and
had issue. In a suit to carry the articles
into execution—Held, that the eldest son
was entitled to an estate tail in possession,
with remainder to him in fee.—Dillon v. Blake,
161.C.R. 24. (C.)

5. V., seized of lands under leases for lives
renewable for ever, devised, in 1824, all his
freehold leases and interest whatsoever, to
trustees, and the heirs of their survivor, in
trust, after payment of the head rents, to
apply the clear yearly rents amongst his
three daughters, during their respective lives,
in equal shares, for their separate use; and
if any or either of them died leaving lawful
issue, then in trust, as to her share, for the
use of such issue as she should by deed or
will appoint ; in default of such appointment,
to the use of such issue equally, share and
share alike. He directed that if any of his
daughters died without issue, her share should
go to the survivor or survivors of them,
for the increase of her and their respec-
tive shares, to their separate use, and to
go to their lawful issue, subject to the like
power of appointment amongst them; if all
his daughters died without leaving lawful
issue, then in trust to pay the rents to his
nephew during his life, and after the nephew’s
death, if he left lawful issue, in trust, as
to one-half of the freehold and leasehold
interests, to the use of such issue as he should
appoint; in default of appointment, equally ;
and, as to the remaining half, to the use
of his sister’s children, in equal shares, and to
their lawful issue; and, if his nephew died
without issue, then, as to the whole of his
freehold and leasehold interests, to the use
of his sister’s children, in equal shares, and
to their lawful issue; and, if they should
be then dead, then, as to the whole, in trust
for the issue of his nephew; and, in case
of the deaths of his nephew and the children
of his sister without issue, in trust to assign
over the freehold and leasehold interests to
his own right heirs. The trustees were given
a power to lease from time to time, as they
should remain seized and possessed by virtue
of the trusts contained in the will, with the
consent of the person or persons then enti-
tled. Held, that the legal estate was devised
to the trustees during the existence of the
entire series of limitations, and that V.’s
daughters took equitable estates in quasi tail
in their respective shares.—Sherwin v. Kenny,
16 I. C. R. 138. (R.)

I. 2. Zits nature and incidents.
a. Generally—Rights of Tenant in tail,
and issue in Tail.
its Nature and

b. Money to be laid out in purchasing
estate tail.

c. As between Tenant in tail and issue
in tail, and Remainderman.

d. Barring or destroying entails and re-
mainder over—Protector of Set-
tlement.

 

IL. 2. a. Generally—rights of Tenant in tail, and
Issue in tail.

1. A Court of Equity’s decree against an
equitable tenant in tail for specific execution
of a contract relating to the entailed lands,
and founded upon a personal equity against
the tenant in tail, does not bind the issue in
tail, when the tenant in tail dies without hav-
ing performed the decree.

When a tenant in tail of an equitable estate
takes a conveyance of the legal estate to him-
self and his heirs, the equitable estate tail is
not merged in the legal fee.— Stoney v. Saunders,
H.& J. 519. (E.E.)

2. A by will, made in 1822, devised all his
freehold property upon trust to permit his
daughter, R., who was also heiress-at-law, to
receive the rents and profits “for such term,
time, and space as” she “shall remain unmar-
ried, or marry with the consent of one or
more of my; above named trustees. But” if
R. “shall not marry with consent of one or
both of my said trustees,” then she was to re-
ceive only an annuity of £60 for her life, the
residue of the property to be vested in govern-
ment stock for the benefit of her issue: “ and
in case of no issue, I bequeath such residue to
my right heirs.” And if R. died unmarried or
without lawful issue, A. devised her property
over.

A., with other persons, was seized of the
lands in question, together with other lands,
by virtue of a lease for lives renewable for
ever, made in 1744. . In 1818, a partition was
made of the lands comprised in that lease. In
1825, A. died. In 1829 a renewal of the lease
of 1744 was made to a trustee upon trust, as to
one moiety of the lands, for himself and his
heirs, and as to the other moiety for the seve-
ral persons entitled thereto according to their
respective rights. To the renewal, R. and the
other persons interested under the lease of
1744 were parties. Held, that R. took, under
the will, an estate guast in tail, which was
barred by the renewal of 1829.—Jnre M‘Neale’s
Estate, 7.1 C.R. 388; 3 1. Jur. N. 8. 310.(C.A.)

 

II. 2. b. Money to be laid out in purchasing
estate tail.

 

Il. 2. c. As between Tenant in tail and issue in
tail, and Remainderman.

 

Ul. 2. d. Barring and destroying entail and re-
mainders over—Protector of Settle-
ment, as

3. A father, tenant for life of an estate pur
autre vie, and his son, tenant in quas? tail in
remainder, under « marriage settlement of

[ESTATE TAIL.]

 

Incidents. 277

1767, joined in executing a deed of the year
1792, the son being then under age, whereby
the lands were conveyed upon trust for the
father for life, remainder to the son, if he sur-
vived his father, absolutely, but if he died in
the life-time of his father, without issue, then
to the father absolutely. This deed contained
a power enabling the father and son to revoke
the uses and declare new ones. The father,
three years after, executed a deed, by which
he purported to convey all his interest to the
son, but still remained in possession, and sub-
sequently obtained a renewal to himself from
the head landlord. The father and son sub-
sequently joined in selling a part of the lands
comprised in the original settlement, creating
the quasi entail, and exercised the power of
revocation contained in the deed of 1792. The
son, in 1815, executed a settlement upon the
occasion of his marriage (his father being then
alive, but not a party to the deed), by which
he conveyed the lands upon trusts for himself
for life, for his intended wife, and the issue of
the marriage; and in default of issue for him-
self absolutely. The son survived the father,
and died in 1832. Held, that by the operation
of the deed of 1792, which was voidable only,
and not void, the quas? entail had been effec-
tually barred.

A tenant in quasi tail, in possession of an
estate pur autre vie, may bar the quasi entail
by any conveyance or disposition inter vivos,
but not by will.

A tenant in guast tail in remainder of an
estate pur autre vie, can, with the concurrence
of the tenant for life, by any act inter vivos,
bar the guas? entail.

If tenant in quasi tail in remainder of an
estate pur autre vie takes a renewal, with the
concurrence of the tenant for life, or if tenant
for life takes the renewal, and conveys to the
tenant in guas? tail in remainder, the quasi
entail will be barred.

Tenant in quast tail in remainder cannot,
without the concurrence of the tenant for life,
affect the guas? entail.

Quere—Whether the conveyance for value
of his estate in remainder, during the life of the
tenant for life, will bar the remainders after ?—
Allenv. A., 41. E. R.472; 1 Con. & L. 427; 2
Dr. & War. 307. (C.)

4. When a lunatic has an equitable estate
tail, it may be barred without the concur-
rence of the committee thereof.—Re Skerrett,
2 Dr. & War. 585. (C.) :

5. A share of the estate of which a fine had
been levied, which descended to the cognizor
as heir-at-law, after the levying of the fine,
and the execution of the deed leading the
uses thereof, was held to be included in the
fine, and subjected to the uses thereof, by a
deed executed subsequently to the descent for
the purpose of confirming the deed declaring
the uses of the fine-—Cole v. Sewell, 6 I. E. R.
66; 2 Con. & L. 353; 4 Dr. & War. 1. (C.)

6. A fine by a tenant in tail, though levied
with a different intent, operates, in the first
place, to confirm any incumbrance previously
278 How

created by him, by a voidable conveyance.—
Loyd v. L., 2 Con, & L. 592. (C.)

1. Fee-simple, freehold, and leasehold lands
were limited to A. for life, remainder to B.
in tail. By a settlement executed on B.’s
marriage, and reciting that B. could not ob-
tain A.’s consent to bar his estate tail, B., in
order to defeat his estate tail in remainder,
and to convey a base fee to the trustees, con-
veyed these lands, subject to the life estate of
A., to the use of himself for life, and, after
his decease, upon trust that his intended
wife, if she survived him, should, after his de-
cease, during the remainder of her life, receive
a jointure out of the lands, the first payment
thereof to be made on such of the gale days
as should first happen after the decease of B.,
with a clause of entry and distress on non-
payment for 21 days after any of the days of
payment; remainder, after the death of B., to
trustees for 300 years, to secure portions for
younger children ; remainder to the first and
other sons of the marriage in tail male; re-
mainder over. The wife’s fortune was con-
veyed in trust to pay the interest, after the
decease of B.,in the lifetime of A., to the
wife until she became entitled to receive the
jointure; and if B. survived A., or obtained
A.’s consent to bar the estate tail, in trust for
B. absolutely. B. died in the lifetime of A.
Held, that the jointure did not become payable
until after A.’s death.—Zeonard v. L., 91. C.
R. 388. (R.)

2. An estate tail in a lease for lives renew-
able for ever is barred by taking a renewal of
the lease.—In re M'‘Neale’s Estate, 7 I. C. R.
388. (C.A.)

 

Ill. Estate ror Lire.

* 1, How created.
2. Its nature, rights, and incidents.
a. Generally.
b. Questions between Tenant for life and
Remainderman.

1. Generally.

2. Accounts and allowances between
them; of keeping down in-
cumbrances, and apportion-
ing fines and other expenses.

3. What timber may be cut: of
waste.

4. How far acts and covenants of
the one bind the other.

5: Apportioning rent between Re-
mainderman and Representa-
tives of Tenant for life.

6. What renewals of leases, &c.,
shall come to Remainder-
man’s benefit. :

3. Tenancy in tail after possibility of issue
extinct.
4. Tenancy by courtesy.

 

Il. 1. Lire Estate: HOw CREATED.

38. V., in 1832, devised all her freehold and
leasehold estates to A. for life, remainder to
B. for life, remainder (except as to a rent) to
the Commissioners of Charitable Don. and

[LIFE ESTATE.]

 

Created.

Beq., upon trust to renew leases and apply
rents, &c., and appointed A. and B. executors
of her will. Held, that A. and B. took benefi-
cial estates respectively for life Commission-
ers of Charitable Donations v. Es pinasse, 3 1. E.
R. 324. (R.)

4. By post-nuptial articles, F., having then
living two sons, H. and T., and one daughter,
covenanted with trustees to settle lands (of
which he was seized in fee) as counsel should
direct, to the use of F. for life; remainder to
trustees to preserve, &c.; remainder to the use
of H., and to permit him to take the rents and
profits for life; remainder to the heirs male
of the body of H.; remainder to the use of
T., and to permit him to take the rents and
profits for his life; remainder to the issue
male of T.; with remainder to the unborn
sons of the settlor in tail male in strict settle-
ment. Held, that H. took an estate for life
only.—Rochfort v. Fitzmaurice, 2 Dr. & War.
1; 1Con.& L. 158; 41. E. R. 375. (C.)

5. M., entitled to an estate in fee, expectant
upon the death of her father without other
issue, by articles executed before her marriage
with G., agreed, that her estate should be set-
tled to her separate use “if she should ever
become entitled thereto,” and on her issue;
and that if M. died in the life of G., he should
receive the rents for life, provided M. should
ever become entitled thereto as aforesaid, but
not otherwise. G. covenanted to execute
these limitations within six months after the
marriage. M. died before her father, who
never had other issue. Held, that under the
articles, G. took an estate for life, although
M. never became entitled to the possession.—
Wallace v. W., 2 Dr. & War. 452; 1 Con. &
L. 491. (C.)

6. V., in 1802, devised as follows—I give and
devise unto C. the lands of D., to hold to him
during his natural life; and from and after
his decease, I give and devise the same unto
the issue male and female of the said C., be-
gotten, or to be begotten upon the body of
his present wife, D., to be divided between
and amongst them, in such manner, shares,
and proportions as the said C. shall by his last
will and testament limit and appoint.” Held,
that C. took an estate for life only.— Crozier
y. C., 51. E.R. 415. (C.)

7. A devise of “all my real and personal
fortune” to A. for life, and after his decease
to “the first and every other son in succession”
of A.; “in default of such issue,” to B. for
life, with the same limitations to his sons; in
default of such issue, to the daughters of A.
and B.; in default of such issue, to C. for life,
with the same limitations repeated as to her
sons and daughters; in default of such issue,
to X. in fee. Held, to give successive life
estates in all the limitations before the gift to
X.—Bevan v. White, 71. E. R. 478. (C.)

8. V., in 1791, devised all his “part of the
lands of A., being lately part of the estate of
K.” purchased by him under a decree of the
Court of Ch.,to his son W. “during his natural
life, and no longer; unless it shall so happen
How

that my said son shall survive his present wife
and marry a second or other wife, by whom he
shall have lawful issue, and then and in that
case” C. devised “said part of said lands
upon the death of my said son leaving issue
male of such second or other marriage, to such
issue male, share and share alike; and for
want of issue male, to the issue female of such
second or other marriage, share and share
alike ;” andif W. should die without leaving
any such issue of such second or other mar-
riage, V. devised the lands to his grandsons.
Held, that W. took for life, remainder to the
issue of a second or other marriage in fee as
tenants in common, and that the grandsons
were to take only on the contingency of the
devise to the issue not taking effect.

The rulein Shelley’s case, 1 Rep. 93 b, as ap-
plicable to wills, considered and explained.
The cases on the construction of “issue” and
“heirs” in testamentary gifts reviewed.—
Montgomery v. M., 8 I. E. R. 740; 3 Jon. & L.
47. (C.)

1. V., in 1763, seized in fee, devised one
moiety of his estate to M., for life, remainder
to her first and other sons in tail; for want
of such issue, remainder to her issue female,
and the heirs of their bodies; with power to
M. to charge £1000 for younger children ; for
want of such issue, remainder to J. for life,
with similar remainders to her issue. The
other moiety was limited to J. for her life, and
to her issue, and then to M. and her issue in
the same way as the first moiety ; for want of
issue of M. and J., the whole to L. for life, wit
remainders over.

By codicil, reciting the marriage of M. with
D., he devised one moiety to M. for life, remain-
der to the issue of M. successively and the
heirs of their bodies “as in said will limited,
and for default of issue” to D. for life, with re-
mainder overasin said willlimited. The codicil
contained the following clause:—‘I ratify my
will with respect to my real estate in every par-
ticular not hereby altered ; the only alteration
I intend hereby is, that if my sister Margaret
should die without issue, or failing issue, that
the said D. her husband, or any other husband
she may have, should hold a moiety of my
estate during his life.” M. after the death of
D. suffered a recovery to the use of herself,
her heirs and assigns forever. Held, that under
the limitations in the will M. tdok only an
estate for her life, and that she did not take

. an estate in tail female, after the estate in tail
male to her first and other sons.

That from the words “in default of such
issue to D.,” &c., in the codicil, there was no
ground for implying an estate tail in M., the
word “such” being referential to the devise in
the will to her sons in tail male and her daugh-
ters in tail general.

That the devise in the codicil to D. or any
future husband, if M. should die without issue,
or, failing issue, was to take effect on the de-
termination of the express limitations in the
will to M.’s first and other sons in tail male,
and to her daughters in tail general, and not
on a general failure of M.’s issue; and that M.
therefore did not take an estate tail by impli-

[LIFE ESTATE]

 

cation.— Hamilton v. West, 10 I. E. R. 75. (R.)

Created. 279

2. Devise, in 1821, of lands, in trust for A.,
a reputed son, for life, and, after his decease,
for and to the first and every other son of
A. successively in tail male; in default of
such issue, to the daughter or daughters
of A., to hold to them, if more than one,
and their heirs, as tenants in common; in
default of issue of A., to and for testator’s
heirs. Held, that A. took only an estate
for life, and that no remainder in tail to
him could be implied after the limitation
to the daughters.— Tucker v. Baker, 11 I. E.
R. 104. (C.)—[Affd., 3 H. L. Cas. 106; 14
Jur. 771.]

3. S., owner of an estate for lives renew-
able for ever, after devising freehold proper-
ties to his two sons, in terms sufficient to vest
the absolute interest in them, “devised and
bequeathed their respective shares or moie-
ties of the said premises to their respective
children lawfully begotten, male and female,
in such shares and proportions as they may
respectively, by will or deed duly executed,
limit and appoint their respective moieties ;
and, if either of my said sons should die
without lawful issue, born or unborn, I then
will and devise the moiety or share of him
so dying to the survivor, on the happening of
such event, I then will and devise the same
to the children of the survivor lawfully be-
gotten.” Held, that the sons did not take
an absolute estate, or an estate in guas? tail in
the premises, subject to the above limitations,
but only an estate for life—Jn re Campbell’s
Estate, 51. Jur. N.§. 414. (L.E.C.)

4. M., in 1802, bequeathed a chattel interest
to J. and T., and the survivor of them, and the
heirs of such survivor, not as joint heirs but
as tenants in common; and declared it to be
his will that if both J. and T. died without
issue, the share or shares of both, or of such
of them as should die without issue, should go
to M.’s rightful heirs-at-law. T. bequeathed
all his property of every description to J., and
died. Held, that J. took the absolute interest
in the chattel.

J. bequeathed the same interest to B. for
life, without impeachment of waste, and, from
the decease of B., then to the use of the first
son of B., and the first and other sons of the
said first son, or the daughter or daughters of
such first son; remainder to the second and
other sons of B. successively, and their issue
male or female; for want of such issue male
in B., remainder to his issue female; and for
want of any issue in B., remainder over. Held,
that B. took a life interest, with remainder to
his first son absolutely— Murphy v. Johnstone,
61. C. R. 230. (C.)

5. A marriage settlement conveyed renew-
able freeholds to trustees and their heirs, upon
trust to permit the lands to be enjoyed for
ever by the issue male of the marriage. The
settlement contained expressions affording
some evidence of an intention to grant a per-
petual interest. Held, that the sons of the
marriage took only estates for life——Barron v.
B., 8 I. C. R. 366; Dr. Rep. temp. Napier, 384,
(C)
280 How

1. V., seized in fee of several denominations
of lands, A., B., C., D., E., F., and G., in Ire-
land, devised in 1823 all his estates in land in
Ireland upon the trusts thereinafter declared ;
charged his lands with the payment of annui-
ties and sums of money, and declared that as
to the rest, residue, and remainder of all other
his estates in land thereinbefore devised to
his trustees, they should hold them to the use
of H. for life, and after the death of H., if he
should leave two or more sons, then they were
to hold the lands of A. to the use of the
second son of H. in tail male; and if H. left
but one son, then to the use of that only son
in tail male, “with all other my other estates
in land ;” and if H. left three or more sons,
then the trustees were to hold the lands of B,
and C. to the use of the third son of H.; and
the lands of D. to the use of the fourth son of
H. in tail male, and the lands of A. to the use
of the fifth son of H. in tail male; and the
lands of E. to the first son of H. in tail male.
Then came the residuary clause, “and all the
rest of my lands and estates in Ireland hereby
devised to my trustees, and of which I have
not declared any trusts or uses after the death
of H., I demise the same to the first and every
othersonof H. lawfully begotten, and the heirs
male of the body of such son and sons in tail
male successively; in default of such issue
male in H., then to the use of my nieces, J. F.,
R. F., and B. F., and the survivor of them, for
the term of their natural lives, and after their
decease to the first and other sons in tail
male; for default of such issue male then to
the daughters of J. F., R. F., and B. F.; for
default of such issue male or female, then to
the issue of my own right heirs for ever.”

J. then empowered H., as soon as he became
seized of an estate of freehold, to charge a
jointure for his wife on part of the lands, and
then came a second residuary clause, “ And I
give, devise, and bequeath all the rest, &c., of
my real freehold and personal estate and for-
tune not hereinbefore particularly disposed of,
with all my leasehold interest, unto H. afore-
said, and his heirs male lawfully begotten.”
Held, that under the first residuary clause
J.’s three nieces, J. F., R. F., and B. F., were,
upon the death of H. without issue, entitled to
a life estate in the undisposed-of remainders
in the lands specifically demised after the
death of H., as well as in the denominations
¥F. and G., which had not been specifically
mentioned.— Taaffe v. Ferrall, 10 I. C. R. 183.
(C.A.)

2. Bequest, in 1832, of the interest of £500
to A. for life, and as to the principal after the
decease of A., and as “to all other property
belonging to me that I may die seized and
possessed of, or entitled unto, in trust for
the use, benefit, and behoof of” B. and her
children, “without the control or intermed-
dling of her husband, and to be paid in such
manner as my trustees shall, in their dis-
cretion, think fit.” Held, that B. took a life
interest in all the property, with remainder to
all her children born in A.’s lifetime, before
and after the death of the testatrix.—Scott v.
S.111.C. RB. 114. (R.)

(LIFE ESTATE.]

 

Created.

8. A marriage settlement vested freehold
leases in trustees, to hold to the use of A.
and his heirs and assigns, from the perfection
of the settlement, for his natural life, without
impeachment of waste, with a power to lease ;
remainder to the trustees, to preserve, &c., and
from the decease of A. to secure a jointure of
£80 to B. (A.’s wife). A. covenanted to charge
the jointure on after-acquired estate, with
power of distress, and that the lands, after the
decease of the survivors of A. and B., if there
was but one child of the marriage, to the use
of such only child, and the heirs of his or her
body lawfully issuing; and if more than one
such child, to such children in such shares and
proportions as A. should by deed or will ap-
point; in default of such appointment, to the
use of all the children, as tenants in common,
share and share alike. Held, that the words,
“and his heirs” should be rejected, and that
A. took a life estate. That the clause begin-
ning “and further,” is a limitation in conti-
nuation of, and direct sequence upon, the
limitations to trustees to preserve.

Semble—That if that clause be a covenant to
settle after-acquired property on the children, ..
a Court of Equity would not mould the trusts
in any manner, as they are fully declared.

Semble—That, assuming it to be such a
covenant, after-acquired property, settled irre-
spective of such covenant, by A. on a child,
must be brought into hotchpot.—Jn re Ham-
mersly, 11 I. C. R. 229. (L.E.C.)—[Affd. 12
I. C. R. 319; 6 1. Jur. N.S. 328. (C.A.)]

4, V.,in 1823, devised allhis real estates to H.,
with remainder to his sons, in strict settlement,
and “in default of such issue male in H. then
to the use of my nieces, R. and F. and the sur-
vivor of them, for the term of their natural
lives, as tenants in common and not as joint
tenants; and from and after their decease, to
the use of their first and every other son and
sons lawfully begotten on their bodies, and the
heirs male of their respective bodies succes-
sively, in equal proportions ; the eldest of such
sons of each of my said nieces, and the heirs
male of their bodies, being always preferred
and to take before the younger, and the heirs
male of their bodies; and for default of such
issue male, then to the daughters of said J.,
R., and B.; and for default of such issue male
or female, t6 the use of my right heirs male
for ever.” Held, that J., R., and B. took as
tenants in common for life, with remainder, as
to the share of each, to her sons in tail, with im-
mediate remainder to her daughters in tail.
Conmee v. Taaffe, 12 I. C. R. 838; 61. Jur. N.
S. 232. (C.)—[ Reversed: 10 H. Lds. Cas. 64.]

5. L., upon his marriage, settled renewable
freeholds to the use of himself for life, remain-
der upon trust for the eldest son of the mar-
riage, till he attained age, then upon trust to
convey to him absolutely. The deed empow-
ered L. to revoke the limitation to the eldest
son, and relimit to the sons of the marriage
in such priority as he should think fit. P.,
the eldest son, attained age before 1802. In
1802, by deed reciting the settlement, L. and
P. conveyed the settled lands to trustees and
Lis Nature,

their heirs, to the use of L. for life, remainder,
as to part, to the use of such younger son or
sons of L., as he should by deed or will ap-
point to. Held, that L. could not, under this
power, appoint to his younger sons estates
greater than for life—Lamphier v. Drapes, 14
LC. R. 38. (C.).

1. By marriage articles, the intended hus-
band, in consideration of the intended mar-
riage and the wife’s fortune, agreed to convey
lands in trust for himself for life; and if she
survived him, to her use and that of their
child or children, and, if no children, to the
use of the intended wife and her heirs, &c.
Held, that « settlement in pursuance of the
articles should give the intended wife a life
estate," with remainder to their children—
Rossiter v. R., 14 1 C.R. 247. (R.)

2. By marriage settlement of 1791, the lands
of G. were conveyed in fee, in trust for A., the
husband, for life; remainder to the children
of the marriage in fee, in such shares, &c., as
A. should appoint; in default of appointment,
share and share alike. There were five child-
ren. :

In 1827, A., by will, reciting his power of
appointment, and that he had provided other-
wise for his eldest son, and obtained from him
a release of all claims under the settlement,
devised G., in trust for A.’s second son, for
life ; remainder to that son’s first and other
sons in t.m.; in default of such issue, in trust
for A.’s third son for life, with like remainder ;
and so to A.’s fourth and fifth sons. A. then
devised amongst his sons other real estates,
over which he had an absolute power of dis-
posal; bequeathed £10,000 amongst them;
and directed that each should, within three
months after A.’s decease, execute to the
trustees of the settlement a release of all
claims thereunder. If any son refused to do
so, all devises and bequests in his favour were
revoked. All the younger sons elected to take
under the will. Held; reversing a decision in
the L. E. Court, that each younger son took
in G. only a life estate—Jn re Dennehy’s Estate,
171. C.R. 97; 111. Jur. N.§. 21. (C.A.)

8. V., by codicil, in 1821, devised fee-simple
lands to C., ‘and to her five children, A,, S.,
D., J., and M., share and share alike during
their lives, or the life of the survivor, or long-
est liver of them... . andif it happen that
any of the said persons should die unmarried
and without any lawful issue, it is my will that
the portion of such person should go to and
amongst the survivor of them; and it is my
will that the said C. and her said children
should have, hold, and enjoy the said lands
and premises as before mentioned for the
natural life or lives of them, or the survivor
or longest liver of them.” These five children
were V.’s illegitimate offspring by C. Held,
affirming the decision of a Judge of the L. E.
Court, that C. and her five children took
merely a life estate with cross-remainders
among them, not an estate tail—Zn re Nesbitt’s
Estate, 111. Jur. N. 8. 349. (C.A.)

 

[ESTATE FOR LIFE.] _

 

Rights, Se. 281

III. 2. Its nature, rights, and incidents.

a. Generally. ;
b. Questions between Tenant for life
and Remainderman.

1. Generally.

2. Accounts &§c., between them — of
keeping down Incumbrances, and
apportioning Fines and other
Expenses.

o cutting Timber ; of Waste.
ow far acts, &c., of one bind
the other.

5. Apportioning Rent between Re-
mainderman and reprs. of Te-
nant for life.

6. What renewals of Leases, §c.,
come to Remainderman’s benefit.

3.
4,

 

Il. 2. a. Nature, rights, and incidents of Life
Estate; generally.

4, Tenant for life confesses a judgment, is
discharged as an insolvent, and dies. The
Court has jurisdiction, under the 5 & 6 W. 4,
c. 55, after his death, to make absolute, as
against his assignees, a conditional order to
extend a receiver obtained in the lifetime
of the insolvent, upon a petition against him,
so far as to give effect to the lien of the pe-
titioner on the life estate, and the rents re-
ceived by the receiver thereout, and the pur-
poses necessarily connected therewith.— Barry
v. Wilkinson, 31. E.R. 121.—[\See observations
on this case, ibid, 564. (E.E.)]

5. By a marriage settlement, freeholds and
chattels real were settled upon the husband
for life, with power to appoint by will among
the children of the marriage; in default of
appointment, the property was to be divided
amongst the children. Held, that the shares
of the children did not vest until the death of
the husband.—Heron v. Stokes, 31. E. R. 163.
(C.)—[Reversed on rehearing: 41. E. R. 284; 1.
Con. & L. 270; 2 Dr. & War. 89. (C.)—Decree
on rehearing reversed: 12 Cl. & Fin. 161.]

6. Plaintiffs’ bill, filed to establish a lease,
alleged that one of them claimed under one
of several lessees, not stating which; “that
all the legal and equitable estate and interest
of W., the original lessee, by mesne assign-
ments or otherwise, duly came to and was
vested in the plaintiffs and one C.” (who was
not a party to the suit); “ and that they were
equitably entitled to the portions of the lands
in their possession respectively.” Held, on
demurrer, that the title of the plaintiffs was
not stated with sufficient certainty, the rule
of Law and Equity being the same, that the
plaintiff must allege his own title particularly;
that in a suit to establish the lease, all the te-
nants should be before the Court; and that
there was not, therefore, a sufficient privity
established between the plaintiffs and de-
fendant.

Tenant for life made a lease exceeding his
power, with a covenant for quiet enjoyment
for himself and those claiming under him. He
and the remainderman subsequently conveyed

| the estate in fee, subject to the tenants’ leases.
‘| Held, that this did not amount to a confirma-

36
282 Tenant for Life

tion of the lease by the remainderman, there
being no contract between him and the te-
nants, nor any stipulation between the tenant
for life and the remainderman, that the latter
should not impeach the lease.

Quere—Is the insanity of the plaintiff, at
the time of the filing of the bill in his name,
but without his authority, available on de-
murrer ?—Brangan v. Gorges, 7 I. E. R. 283.
(R.)

1. Equity will restrain waste which occa-
sions immediate damage to the inheritance,
though the act done may lead to the improve-
ment of the land.

In executing an arrangement to carry off
incumbrances, A., owner in fee, conveyed the
fee to B., who re-demised to A. for lives re-
newable for ever, at a rent, habendum, in
the same manner as A. then held and enjoyed
them. The lease contained the common co-
venants, including one to deliver up the pre-
mises in repair, fire casualties excepted. J/eld,
that A. did not retain the rights of an owner
in fee, subject to the rent, but was restrain-
able from committing waste.—Coppinger v.
Gubbins, 9 I. E. R. 804; 3 Jon. & L. 397. (C.)

2. When lands, held for lives renewable for
ever, are limited in strict settlement, and, the
tenant for life neglecting to pay the head
rent, the lands are evicted by the landlord, a
judgment creditor of the life tenant, who
comes forward to redeem, will not be con-
sidered a volunteer.

Semble—Such a party has such a lien against
the estate as will induce the Court to sell the
inheritance on his presenting a petition.—Jn
re Primrose, 31. Jur. 77. (1.E.C.)

 

IIE. 2. b. 1. Questions between Tenant for life and
Remainderman : generally.

3. The acts of tenant for life, done while in
possession, are evidence against the remain-
derman.—WNangle v. Smith, 1 I. E. R. 119. (C.)

4. The general rule is, that the tenant for
life is bound to pay the interest upon incum-
brances. But an incumbrancer, who merely
neglects to enforce payment of the interest
from the tenant for life, will not be thereby
debarred from raising it, with the principal,
out of the inheritance.—Wrixon v. Vize, 1
Con. & L. 298; 2 Dr. & War. 192; 4 1. E. R.
463. (C.)

5. V., tenant for life, with power to join-
ture, married without exercising it. His in-
tended wife, C., seized of real estate for her
own life, settled it to V.’s use for the joint
lives of V. and C., remainder to C. for life.
V., becoming indebted, agreed with C. and his
creditor to exercise the jointuring power in
C.’s favour, and that C. should grant the
creditor for her life an annuity equal in
amount to the jointure, charged upon her
estate, and payable upon V.’s death. That
agreement was carried into execution. V.
died. Held, that that execution of the power
was not a fraud upon the remainderman,—
Baldwin v. Roche, 5 1. E. R.110. (E.E.)

 

[ESTATE FOR LIFE.] and Remainderman.

6. Upon the expiration of an estate over
which a receiver has been appointed, the
reversioner or remainderman may enter, not-
withstanding the continuance of the receiver;
and will not by doing so be deemed guilty of
a contempt. If, under such circumstances, an
application be made to remove the receiver,
or for leave to enter into possession, the ap-
plicant must bear the cost. If, however, it be
attempted to attach the reversioner or re-
mainderman for interfering with the receiver’s
possession, the reversioner or remainderman
will be awarded the costs which the applica-
tion causes him.— Britton v. M‘Donnell, 5 I. E.
R. 275. (R.) :

7. P., lessee for lives, with covenant for
perpetual renewal, subject to the yearly rent
of £14, in 1796, by deed in form of lease,
assigned the whole estate, &c., at law to H.,
reserving the yearly rent of £64. In 1798,
P., by marriage settlement, reciting that he
was seized and possessed of the lands for
lives renewable for ever, professed to convey
them (but without any covenant against in-
cumbrances), with other parcels, to the use
of himself for life, remainder (subject to a
term of 200 years therein limited, to secure
jointure and younger children’s portions) to
the first and other sons in tail. In 1804, H.
re-assigned the estate, &c., to P., who held and
enjoyed it until 1818, when he died intestate.
‘Thereupon, his eldest son, W., entered, and
upon his marriage in 1832, conveyed the lands
in the nsual course of family settlement. In
1837, P.’s younger children filed a bill against
W. and wife, the trustees of their marriage
settlement, and others, to raise their portions
under the settlement of 1798, and had a de-
cree for a sale of the term. The term was
sold, the lands being represented as held by
tenants, and yielding the yearly rent of £145,
subject to the head rent of £14. The pur-
chaser objected to the title, on the ground
that the re-assignment passed the estate to P.
unaffected by the trusts of the settlement of
1798. The Master allowed the objection, and
reported that a good title could not be made.
Fleld (overruling exceptions to the report),
that the re-assignment to P. was not like the
case of an incumbrance on the inheritance,
purchased by tenant for life, and merged,
there being in this case no merger or extin-
guishment of what passed by the re-assign-
ment; and that, in considering the objection
to the title, the Court would not regard the
question, whether the contract of 1798 was
such as equitably bound the after-acquired
estate of P., no such question having been
decided or raised in the cause, and the par-
ties interested in it not being before the
Court.—Poole v. P., 61. E. BR. 50. (R.)

8. When a tenant for life buys up an in-
cumbrance for less than is due upon it, guere
if more can be enforced against the inheri-
tance than the sum actually paid?

If the assignee of a mortgage knowingly
suffers a tenant for life of the equity of re-
demption, put in settlement since the mort-
gage, to remain in possession without paying
Tenant for Life

head rents, and then advances him money to
save the estate from eviction; Semble—the
sum advanced may be enforced notwithstand-
ing, as salvage against the inheritance —Hill
v. Browne, 6 I. E. R. 403; Dr. Rep. temp. Sug-
den, 426. (C.)

\

1. V., in 1822, devised real estate for a term
of years upon trust, if his personalty proved
insufficient to pay his debts and legacies, to
raise, after his wife’s death, by sale or mort-
gage, such sums as should suffice to discharge
his legacies to pay which his personalty
should prove insufficient. Subject thereto,
V. devised the estates to his issue; for default
of issue living at the time of his decease, to his
wife for life; remainder to C.’s use for life;
remainder to C.’s first and other sons in t. m.
V. died without issue. Held, that C. should
pay the interest on the deficiency to be ascer-
tained within a reasonable time after V.’s
death, or by the actual result of the account ;
that the estate should bear only the capital of
the deficiency; and that if the personalty was
realised in sums composed partly of capital
money, and partly of interest, the interest
should be applied in paying the interest on
the legacies, and the capital should be ap-
plied, in ease of the term of years, in paying
the capital of the legacies—Coote v. Lord
Milltown, 71. HE. R. 391; 1 Jon. & L. 501. (C.)

2. A., seized of lands charged with an an-
nuity, and of other lands not so charged, sold
a portion of the former to B., and covenanted
with him that the annuity should be exclu-
sively borne by the latter. By a subsequent
marriage settlement, A. conveyed the indem-
nity lands to the use of himself for life, re-
mainder to the use of such sons of the mar-
riage as he should appoint, remainder to the
first and other sons in tail, and covenanted
with the trustees for quiet enjoyment and
against incumbrances. The annuity having
‘fallen into arrear, a bill was filed to raise the
arrears and secure the future gales. B. also
filed a bill for a sale of the indemnity lands.
Part was sold; the annuity and arrears were
paid ; and the balance of the purchase-money
lodged in Court, on which dividends accumu-
lated for many years.—A. having afterwards
become insolvent; Held, that the first son
of the marriage was entitled as against the
insolvent’s assignee, to be recouped the sum
paid in discharge of the annuity, out of the
dividends in Court.—Coote v. O'Reilly, 7 I. E.
R. 356; 1 Jon. & L. 455. (C.)

8. A tenant in tail is not bound to keep
down interest on charges, nor is a tenant for
life bound to pay interest accrued during the
life of a former tenant for life. By marriage
settlement, incumbered lands, of which the
husband was tenant in tail, and a sum of
stock, were vested in trustees, and the hus-
band was made tenant for life, and an ar-
rear of interest, due at the date of the settle-
ment, was, under a power in the settlement,
paid off with a portion of the stock. Held,
that the husband was not bound to replace the

 

(ESTATE FOR LIFE.] and Remainderman. 283.

stock so applied —Kennedy v. Daly, 71. C.B
445. (R.) ,

4. A., seized of the lands of G., subject to a
charge for B., gave a judgment to secure a
further charge for B. By a post-nuptial in-
strument A. settled G., subject to the charge
for B., but misstating its amount, upon him-
self for life; remainder to his eldest son for
life, remainders over in strict settlement. On
the marriage of A.’s eldest son, the post-
nupial settlement was adopted. B.’s judg-
ment was paid out of A.’s life estate. Held,
that the judgment creditors of A., after the
settlement, had no equity to raise for their
benefit, out of the inheritance, the amount
paid out of A.’s life estate on foot of B.’s
judgment.—Stock v. Aylward, 81. C. R. 429;
Dr. Rep. temp. Napier, 378. (C.)

5. Executors sold arrears of rent which
amounted to £49,799. 9s. 6d., to the remain-
derman, for £20,000, payable in four instal-
ments. Held, having regard to the cireum-
stances of the estate, and the remedies which
the executors and the remainderman respec-
tively had to recover the arrears, and the
accruing rent, that the executors were not
chargeable with the entire amount of the
arrears recovered by the remainderman.

But the executors, having acted improvi-
dently, and without the sanction of the Court,
were charged with £25,000, the sum for which
it would have sanctioned the sale of the
arrears at the time when it was made.

Executors are not to be charged with debts
which there is reasonable ground for believing
they would not have recovered.

Semble — The remainderman should have
been a party to a suit to charge the executors
of the tenant for life with the arrears of rent
sold to him.—Alexander v. A., 12 I. C. R. 1.
(R.)—[Revd., 13 I. C. R. 187; 71. Jur. N.S.
89. (C.A.)]

III. 2 b. 2. Accounts and allowances between Te-
nant for life and Remainderman : of keeping
down Incumbrances, and apportioning Fines
and other expenses.

6. Upon a sale of lands, subject to an
annuity, the vendor, V., covenanted that
other lands should be an indemnity against
the annuity. Afterwards, V., upon his mar-
riage, settled those indemnity lands on him-
self for life, with remainders over; and cove-
nanted that they were free from incum-
brances. V. having suffered the annuity to
run into arrear, the arrears were raised b
selling part of the settled lands. Held, that
the remainderman had against V., and against
his assignee under the Insolvent Act, an
equity to be recouped those arrears out of
the produce of the life estate— Coote v.
O Reilly, 71. E. R. 356; 1 Jon. & L. 455. (C.)

7, A tenant for life exercised a power of
charging the inheritance (which had been
conferred upon him by settlement), in favour
of H., and afterwards became bankrupt. J.
purchased all the estate, which had vested in
284 Tenant for Life

the assignee, and also H.’s charge. The bank-
rupt died. Held, that, as the person entitled
to receive the interest on the charge was also
owner of the life estate which was to pay
it, it should be considered to have been regu-
larly paid during the life of the tenant for
life, and that, after his death, the owner
of the charge was entitled to claim out of
the inheritance only the arrears of interest
which had accrued since the death of the
tenant for life.-— Simpson y. O’ Sullivan, 3 Dr.
& War. 446, 459. (C.)

1. V., in 1822, devised his real estate to the
use of trustees, for a term of years, upon trust
that, if his personal estate should be found
insufficient to pay his debts and legacies,
they should, after the decease of his wife,
by sale or mortgage, raise such sums of
money as should be sufficient to discharge
his legacies, for the discharge whereof his
personal estate should be found insufficient ;
and subject thereto devised the estates to
his issue; and, for default of issue living
at the time of his decease, to his wife for
her life; remainder to the use of E. for his
life; remainder to the first and other sons
of E. in tail male, and died without issue.
Held, that the tenant for life should pay
the interest on the deficiency, to be ascer-
tained, either within a reasonable time after
the death of V., or to be ascertained by the
actual result of the account; and the estate
is to bear the capital only of the deficiency.
If the personal estate be got in, in sums
composed partly of capital money, and partly
of interest, the interest will be applied in pay-
ment of the interest on the legacies, and the
capital will be applicable to the payment of
the capital of the legacies in ease of the term
of years.

When the general intention is to give a
tenant for life, interest upon the entire amount
of a residue, the Court has given him the
benefit of property which never was realised
during his life. In the same manner, the
Court will make proper arrangements, so as
to make available for the remainderman, the
property which the testator intended for
him.— Coote v. Milltown, 1 Jon. & L. 501; 71.
E.R. 391. (C.)

2. When there is an incumbrance overrid-
ing the entire estate, as between several suc-
cessive owners, the last of several successive
tenants for life is liable only for the interest
accruing during his own life.

By arrangement, a particular rent was allo-
cated to pay the interest on a judgment; and
an arrear of interest accrued. which had just
reached the penalty at the death of the first
tenant for life. The seeond tenant for life
paid the judgment off and hadit assigned to a
trustee. His executors afterwards received

upwards of twenty years’ arrear of the rent. | D

Heid, that this arrear was properly applicable
in favour of the remainderman to the arrear
of interest on the judgment, especially as
there had been family settlements of the
estate, treating the rent as so allocated, and
giving the enjoyment of the estate to the re-

 

(ESTATE FOR LIFE.] and Remainderman.

mainderman, subject to a specific provision
for the second tenant for life— Caulfield v.
Maguire, 8 I. E. R. 164; 2 Jon & L. 141.

©.)

3. An agreement for the reduction of rent
presumed, from the receipt of the reduced
rent, which was consistent with the recital in
a settlement, though during the greater part
of the period a tenant for life received the
rent, and the reduction held to extend to the
entire interest, which was an estate for lives
and a term of years in remainder, and not to
be confined to the estate for lives—Enraght
v. Haughton, 81. E. R. 274. (C.)

4, A., tenant for life, mortgaged under
power the inheritance for £500 and £1000,
and afterwards paid the first mortgage and
took an assignment to a trustee. After his
death B. became entitled to the mortgages.
C., tenant in tail, a minor, covenanted by
marriage articles in 1827, to convey the lands
in trust, to sell and pay off the debts then
affecting them, and subject thereto for her-
self for life, remainder to her children. A
recovery was suffered on her majority. B. filed
a bill, and obtained a report finding in 1835
that arrears of rent and fines, due in the life
of A. and after, were paid off by loan on
mortgage, and found this sum and the two
mortgages, with interest on them all from be-
fore the death of A. to the time of the report,
tobe due. Asale was decreed to pay them. In
1840, B.’s assignee filed a bill, not making the
trustee of C.’s settlement a party, and ob-
tained a decree to carry the former decree
into execution. Held, that the trustee was a
necessary party, as representing the inherit-
ance. That the first decree was erroneous,
declaring the inheritance liable for interest
payable by the life estates of A. and C., and
that a purchaser under the second decree, in
which the inheritance was not represented,
could not be held to his purchase.

A report of good title, plaintiff’s solicitor
undertaking to procure a signature, is in-
formal.—Magawley v. Brady, 9 I. E. R. 59.
(R.)

5. A bonus declared by the Bank of Ire-
land on their stock, in addition to the annual
dividend—Held, not to be in the nature of
annual profits, but an accretion of the capital,
the interest only of which belongs to the te-
nant for life of stock in settlement.—Zz
parte Hodgens, 11 I. E. R. 99. (C.)

6. D. was tenant for life of estates, subject
to a charge on the inheritance of £15,000,
vested in 8.

A bill was filed by D.’s creditors, claiming
under a deed of the 20th April 1799, and a re-
ceiver was appointed over the life estate of

8. filed a bill to raise the charge of £15,000,
vested in him, which was created by a settle-
ment of the 12th Noy. 1761.

D. died on the 5th Oct. 1844. S. obtained
an order on the 27th Jan. 1845, from the late
M. R., extending the receiver to S.’s cause, so
Tenant for Life

far as related to the rents due at the time of
the decease of D. and then remaining uncol-
lected. A sum being in the receiver’s hands,
consisting of rents due in D.’s lifetime, part of
which was collected before and part after the
order of the 27th Jan. 1845—Held (affirming
the Master’s allocation report), that the cre-
ditors of D.’s life estate were entitled to the
rents received before, and §. to the rents
received after, the order of the 27th Jan.
1845.—Moere v. Donegal, 11 I. E. R. 364. (R.)
—[Affd., id, 412. (C.)

1. An owner in fee, having granted an an-
nuity for a term of years determinable with
the life of the grantee—Held, that a bill lies
in equity, after the death of the grantee, to
raise the arrears by a sale of the lands, though
there be no trust term to secure the annuity.

Laches in enforcing an annuity charged on
lands in settlement, whereby a remainderman
is charged with arrears payable by a prior te-
nant for life,is no defence to a suit by the
eee v. Mason, 121. E.R. 244.

2. A fund secured by mortgage was, by a

marriage settlement, in 1827, transferred upon |

trust to permit the husband to receive the in-
terest of the sum, whether it should continue
invested and secured as it was then, or should
be invested in ‘any other security, for life, and
after his decease upon other trusts, with a
power to invest the fund in the public funds
or real securities, so that it, with the interest,
dividends, &c., should continue and be applied
to the same uses, trusts and purposes. The
mortgage having been paid off, and the money
vested in £3} per cent. stock—Held, that the
representative of the husband, who died in
August, was not entitled to any part of the
dividends due in the following October.—
O’Brien v. Fitzgerald, 1 1. C. R. 290. (R.)

3. A receiver having been appointed over
the estate of a tenant for life, for payment of
tithe rentcharge, the Court, after the death
of the tenant for life, continued the receiver;
but Held, that as against the remainderman
the petitioner was entitled to one year’s rent-
charge only.—Labarte v. Constable, 2 I. C. R.
554. (R.) .

4, V., in 1834, bequeathed the lands of K.
(held under a bishop’s lease, renewable every
seven years), and all his other property (being
personal), upon trust to pay the rents and
other outgoings of K. as therein, and to pre-
serve the interest in said lands by keeping up
the renewals; and, after giving legacies, be-
queathed the residue of the lands of K., and
the other property, to his daughter, her exe-
cutors, &c.; but in case of her death, under
age and unmarried, over. On V.’s {death the
daughter was a minor, and made a ward of
Court. The other personal estate not being
sufficient to pay his debts, the greater part of
same were paid out of the rents of K., by the
receiver in the minor matter, and renewals
were obtained, and the fines paid in like man-
ner. The daughter died under age and un-

 

[ESTATE FOR LIFE.] and Remainderman, 285

married, and a remainderman took. Held,
that the personal representative of the minor
was entitled to be repaid the principal money
of such of V.’s debts as were paid out of the
rents of K. during the minority, and which
the other personal estate was insufficient to
discharge, with interest thereon from the mi-
nor’s death.

That the minor and remainderman were
bound to contribute to the renewal fines, in
proportion to the actual advantage they re-
spectively obtained from the renewals.—La-
nauze v. Malone, 8 I. C. R. 354. (C.)

5. When u tenant for life, of incumbered
land, has permitted arrears of interest to ac-
cumulate during the continuance of his life
estate, and dies, leaving arrears of rent due to
him, the remainderman has not any lien upon
such arrears of rent, nor any right to require
them to be applied specifically, by the personal
representative of the tenant: for life, in dis-
charge of the arrears of interest.—Dillon v. D.,
41.C.R. 102; 61. Jur. 157. (C.)

6. In 1735, the lands of L. were mortgaged
to secure £600. In 1838, H. became tenant
for life of L. and other lands. In 1842, H.
took an assignment of the mortgage, and paid
off considerable arrears of interest on it. In
1848, H. died, having permitted arrears of
interest on other charges affecting L. and the
other lands to accrue due. The decree in this
cause, instituted after death of H., directed an
account of the incumbrances affecting L. and
the other lands. Held, allowing exceptions
to the Master’s report, that the arrears of
interest paid off by H. were not barred by the
Statute of Limitations, and that the remain-
derman could not set off the sums paid by him
in discharge of interest accrued due during
the life of H. against the sum due to H.’s re-
presentatives on foot of the mortgage.

Quere—Whether interest permitted by a
tenant for life to accumulate against the in-
heritance, can after his death be claimed as a
debt against his assets ?—Baldwin yv. B., 4 I.
C. R. 501. (C.}—[See Baldwin v. B., 6 1. C. BR.
156. (C.)]

7. When the tenant for life of lands subject
to incumbrances, permits arrears of interest
on those incumbrances to accumulate, the
remainderman may, after the decease of the
tenant for life, claim as a debt against his as-
sets the amount of interest with which the
inheritance was burdened by the default of
the tenant for life——Baldwin v. B., 6.1. C. R.
al Baldwin v. B., 4 1. C. R. 501.

8. When a tenant for life permits arrears of
interest upon charges affecting the inheritance
to accrue, the remainderman’s claim to im-
pound the. produce of the life estate is a fit
subject for reference, under the Ch. Reg. Act,
s. 15.—Kilworth v. Mountcashel, 7 I. C. R. 60.

(C.)

9. Arrears of interest permitted by a tenant
for life to accrue due upon charges affecting
286 Timber.

the inheritance, may, after his decease, be set
off against charges affecting the inheritance,
which, at the time of his decease, were vested
in him.—In re Whyte, 71. C. R. 61. (C.)

1. When a tenant for life has permitted
arrears of charges to accumulate, the claim of
a remainderman, for compensation out of the
life estate, for the increased burden thus cast
on the inheritance, has privrity over charges
on the life estate created by the tenant for
life, and secured by a demise of a legal term,
without notice of the facts constituting the
remainderman’s equity.—Fitzmaurice v. Mur-
phy, 81. C. R. 363. (C.)

 

III. 2. b. 3. Estate for life: what timber may be
cut: registration of trees: Waste.

2. Tenants for lives, with a covenant for
perpetual renewal, are, by the 5 G. 3, ¢. 17
(dr.), rendered unimpeachable of waste in re-
spect of trees planted by them since the pas-
sing of that Act, whether the trees be or be
not registered, and whether the leases, under
which the tenants claim, are prior or subse-
quent to the passing of that Act.

Semble—That by a special covenant, tenants
for lives renewable for ever, whose leases are
of a date subsequent to the passing of that
statute, may render themselves impeachable of
waste in respect of trees planted by them-
selves.

A lease for lives renewable for ever, made
in 1791, reserved and excepted from the de-
mise all timber trees, woods and underwoods,
with liberty of ingress, egress, and regress for
the lessor to cut and carry away the same.
Held, that he was entitled only to trees stand-
ing at the date of the lease, or to trees grow-
ing from the stocks of trees then standing.

Tenant for lives renewable for ever, though
unimpeacHable of waste, will be restrained
from felling ornamental timber, or timber too
young for cutting, or from felling timber in
an uphusbandlike manner; but an intention
on the part of the tenant to commit such acts
must be shown to the Court, in order to induce
it to interfere by injunction.— Pentland v.
Somerville, 2 I. C. R. 289; 41. Jur. 4 and 335.
(C.)

3. A lease, made 1821, for three lives or 41
years, excepted and reserved all timber trees,
or trees likely to be timber, then growing or
being, or which should thereafter grow or be
on the demised premises, with liberty of in-
gress, &c., for the lessor to cut and carry away
the same. It also contained a covenant by the
lessee, at all times during the continuance of
the demise, to repair, preserve, uphold, main-
tain and keep the premises, with all buildings,
plantations, improvements, timber, and other
trees, that then were, or might at any time
thereafter be, erected or planted thereupon,
in good and tenantable order, repair and con-
dition, and at the determination of the demise
to deliver up peaceable possession of the pre-
mises, together with all improvements as then
(1821) were or should thereafter be made
thereon, in like good tenantable order, repair,

(ESTATE FOR LIFE.]

 

Renewals.

and condition. The lessee, in 1828, planted a
large quantity of timber trees, and within a
year afterwards duly registered them pursuant
to the 23 & 24 G. 3, c. 39 (Ir.), having pre-
viously given notice of his intention to his
lessor, who offered no opposition to the regis-
tration. By divers deeds of assignment, not
registered under that statute, the lessee’s in-
terest in the lands became vested in B. A
cause petition (to which the lessee was not
made a respondent), filed in 1851, by the lessor
against B., prayed that B. might be restrained
by injunction from cutting the timber trees
planted by the lessee; but was dismissed, with
costs, without prejudice to such other proceed-
ings as the lessor might be advised to adopt.

Semble—That by the registry of the trees in
1829, the lessee acquired the absolute property
in them ; and that by the deeds of assignment
under which B. claimed, that property as well
as the lessee’s estate in the lands, passed to B.

Semble—That the decision in Herbert v. Ja-
meson (2 Law Rec. N.S. 92) cannot be upheld.
Standish v. Murphy, 2 I. C. R. 264; 4 I. Jur.
297. (C.)

 

DI. 2. b. 4, How far Acts and Covenants of one
bind the other.

TIL. 2. b. 5. Apportioning Rent between Remain-
derman and Representatives of
Tenant for Life.

4, By an indenture of 1835, estates were
settled on A. for life, remainder to B. for life,
remainder over. B. entered into possession,
and so continued until his death, on the 28th
of January 1853. There were three classes of
tenants on the estates, some held under leases
of 1805, one under a lease of 1851, others as
tenants from year to year. C., as administra-
trix of B., claimed under the Apportionment
Act (passed 1834) a proportion of the gale
of rent that was accruing due from the pre-
vious gale day up to the 28th of January 1853,
upon all the lands. Held, that C. was entitled
to a proportion of the rent which was payable
under the lease of 1851. The petition at first
did not contain a schedule setting forth the
tenure under which the tenants held, and it
was directed to be amended by annexing a
rental.

Quere whether the rents*due under the leases
of 1805, or due by the tenants from year to
year, were apportionable under the statute ?—
Swan v. S., 61. Jur. 298. (R.)

 

III. 2. b. 6. What renewals of Leases, §c., shall
come to Remainderman’s benefit.
[See Ren. Lease, Conv. Act.]

5. B. devised, in 1771 (inter alia), leaseholds
held under a See, on trust for the sole use of
his daughter, V., for life; then to the use of
her first lawfully begotten son, and to her heirs
forever. The trustees renewed the leaseholds
until V. attained age. Thenceforward V., as
tenant for life, renewed them, and paid re-
newal fines. After V.’s decease, her husband
filed against the remainderman a bill for con-
tribution towards those fines. Held, that upon
the true construction of the will, showing B.’s
“A
aN

[ESTATE FOR YEARS.—JOINT TENANCY.]

intention, V. was bound to keep those interests
renewed, and was only entitled to the surplus
which remained of the rents and profits after
paying the head rent and renewal fines.—
Trench v. St. George, 1 Dr. & Wal. 417. (C.)

 

IV. Estates ror Yrars: at WILL:
YEAR TO YEAR.

[As to what words give an estate for life,
see ante II, and III.]

1. Payment for a number of years of a small
annual sum, inadequate to the value of the
demised premises, is not per se evidence from
which a tenancy from year to year can be
inferred.— Reynolds v. R., 12 I. E. R. 172. (R.)

FROM

 

V. Estates PUR AUTRE VIE.

[See 29 Car. 2, ¢. 3, s. 12; 14 G. 2, c. 20, s.
9, both repealed by 1 Vic., v. 26.—See 23 & 24
Vic., c. 154, s. 9.]

2. A., entitled to an estate pur autre vie'to
him and his heirs, devised it, without any
words of limitation to designate who should
take as special occupant, but by words which
would pass a fee-simple. He/d, that on the
death of the devisee it descended to his heir,
and not his personal representative.— Wall v.
Byrne, 71. E. R. 578; 2 Jon. & L118. (C.)

3. A., being lessee for V.’s life, with rever-
sion to C. in fee, B. demised the lands to C.
for V.’s life. C. died, leaving A. his heir-at-
law. A.’s estate in possession did not merge
in his reversion derived from C.; both estates
being equal in quantity—Creagh v. Blood, 8
I. E. R. 688; 3 Jon. & L. 188. (C.)

4. A rentcharge was granted to A. and his
heirs, charged on land held for lives, with
covenant for perpetual renewal. A. died in-
testate and without an heir. /Zeld, that his
administratrix was entitled to the rentcharge,
under the 1 Vic., c. 26, s. 6.— Plunket v. Reilly,
21. C. R. 585. (R.)

5. By marriage settlement, the equitable
interest in lands held under a lease for lives
renewable for ever was conveyed, upon trust,
after the settlor’s death, to divide them into.
moieties; to stand seized of one moiety for
the settlor’s daughter (the intended wife) for
life, and, after her death, leaving issue, to pay
that moiety among the issue, share and share
alike, the yearly rents, &c., and the interest
and produce thereof to be paid to and amongst
them until the youngest of them should attain
21, and then to divide all that moiety of the
estate and principal money among them
equally; and if the intended wife died with-
out issue living at her death, then to apply
that moiety to the husband’s use for life, and
after his death to the use of the intended
wife’s sister, and of her heirs and assigns ; and
if she died without issue living at her death,
to the use of the settlor, his heirs, executors,
&c. Held, that the wife’s only child by this
marriage took the absolute interest in a moiety
of the lease.

By the Lord Chancellor :—That in a deed

 

287

words of limitation are not necessary to pass
the entire interest in a lease for lives renew-
able for ever, if other words are used or decla-
rations made conveying the lessee’s whole
estate, or declaring the trusts of the whole
estate vested in trustees.—Brenan v. Boyne, 16
LC. R. 87. (C.A.)—[Revg. 15 I. C, R. 189.

R)]

6. Words of limitation are not necessary to
pass by deed the entire estate in a lease for
lives renewable for ever.—Beity v. Elliott, 16
IC. R. 110, (R.)

VI. Jormt TENANcy.
1. How created.
2. Its nature and incidents.

 

 

VI. 1. Joint Tenancy, how created.

7. In a will made in 1836 certain words
were cancelled, but remained legible. Held,
that as to the personal estate bequeathed by
the will, the cancellation, though unattested,
was complete.

C. by will directed that the premiums of a
policy of insurance should be paid out of his
real estate, and left all his property to his two
daughters, A. and B., subject to his lawful
debts and under the control of his executors ;
and should either of his daughters die, or act
contrary to the will of his executors, directed
that she should be limited to one shilling ;
and should either die, or (sic) unprovided for
according to the will of his executors, the sur-
vivor was to inherit the entire; and should
both die at any period unprovided for, he
willed his landed property to revert to his
nephews, to inherit the entire, share and share
alike; and, finally, should any of his daugh-
ters disobey the commands of his executors,
that she should be limited to any sum they
should appoint for her.

Semble—That A. and B. took as joint
tenants; but, if not, B. took under the sur-
vivorship clause.

A., having attained age, married. She and
her husband afterwards, in the lifetime of the
insured, assigned her moiety of the policy to
trustees. Held, that the joint tenancy in the
policy was not thereby severed.—ZJn re Barrett,
81.0. R. 548. (R.)

8. Partners of a flour-mill and corn-mill,
supplied with water by the same mill-pond,
agreed to partition the premises by lot; the
water to be a joint right between the two
establishments. The party who got the flour-
mill to have the right, at all times, to enter
the establishment of the other for the pur-
pose of more effectually scouring the water-
course ; and either party necessarily making
any proper outlay for such purpose might
claim and recover half the amount from the
other. If the water at any time proved in-
sufficient to work both mills together, each
concern was to have the entire right of water
during each alternate twelve hours. Held,
that the parties were entitled to a joint and
equal right to the entire water, although at
the date of the agreement the supply to the
mills was unequal.
288

Form of decree for partition of a joint right
of water.—Hamilton v. Fawcett, 9 I. C. R. 397.
.)

1. Direction in a will, that testator’s wife
and brother should be his residuary legatees,
and enjoy all the benefits arising from that
appointment. Held, to create a joint tenancy
in the residue.—M‘Donnell v. Jebb, 16 1. C. R.
359. (R.)

VI. 2. Nature and incidents of joint Tenancy :
Severance.

2. Joint tenancy in a residue of personal
estate, Held to have been severed, in equity ;
all parties having, during their lives, acted
with respect to it, under the supposition that
they were entitled to it in common.— Wilson
v. Bell, 5 1. E.R. 501. (E.E.)

3. Two brothers, who were builders, but not
general partners, agreed with A. to take land
and build upon it. The agreement bound A.
to advance £1000 to the brothers at different
times, as the work should advance, and pro-
vided for making a lease at a future time, in
words which, at law, would create a joint
tenancy. The brothers covenanted to com-
plete the building at a certain time, and to
advance the remainder of the money required.
One brother engaged in a dispute with A.,
about the land, and treated the speculation as
imprudent. He soon afterwards became from
absence and insanity incapable of joining in
it, until he died; and never took any part in
it, or advanced any money, the houses being
completed by the other brother. Held, that
the representative of the deceased brother
had no equity to claim a share in the houses,
and that the right of survivorship should not
be intefered with.—Reilly v. Walsh, 11 I. E.
R. 22. (C.)

4, When a new trustee is appointed in lieu
of one of two trustees, out of the jurisdiction,
a third person should be appointed to concur
with the continuing trustee, in conveying chat-
tels real, the subject matter of the trust, to the
new trustee and continuing trustee, in order to
prevent a severance of the joint tenancy.—In
re Darley, 61. Jur. 41. (R.) [(But now 22 &
28 Vic., c. 35, s. 21, enables one trustee to con-
vey to himself and another.]

5. Semble—Severance of a joint tenancy may
be presumed when the joint tenants have for
several years enjoyed their respective shares
in severalty, although no partition has been
actually made.—Roche v. Sheridan, 2 I. Jur.
N.S. 409. (R.)

6. In a will made in 1836, words were can-
celled, but remained legible. Held, that as to
the personal estate bequeathed by the will,
the cancellation, though unattested, was com-
plete.

V., by will, directed that the premiums of a
policy of assurance should be paid out of his
real estate, and left all his property to his
two daughters, A. and B., subject to his lawful

 

(JOINT TENANCY.—TENANCY IN COMMON.]

debts, and under the control of his executors ;
and should either daughter die, or act contrary
tothe will of his executors, V. directed that she
should be limited to one shilling; and should
either die (sic) or unprovided for according to
the will of his executors, the survivor was to in-
herit the entire; should both die at any period
unprovided for, he willed his landed property
to revert to his nephews, to inherit the entire,
share and share alike; and finally, should any
of his daughters disobey the cominands of his
executors, she should be limited to any sum
they should appoint for her. Semble—That
A. and B. took as joint tenants; if not, B.
took under the survivorship clause.

A., having attained age, married. She and
her husband afterwards, in the life of the in-
sured, assigned her moiety of the policy to
trustees, upon trusts. Held, that the joint
tenancy in the policy was not thereby severed.
—ZIn re Barrett, 8 I. C. R. 548. (R.)

7. An undivided part of lands, held for a
term of years, was devised to A. for life; re-
mainder to B. and C., as joint tenants. A.
and the executors joined in a conveyance to
C., in trust for the several and respective par-
ties entitled thereto, in order to enable C. to
grant a lease of the lands. C. demised, re-
serving the rent to himself. Held, that the
joint tenancy between B. and C. was severed.
— Connolly v. C., 17 I. C. R. 208. (R.)

VIL. Tenancy in Common.

1. How created.
2. Its nature, rights, and incidents.
8. Partition.

 

VII. 1. Tenancy in common: how created.

8. Devise to A. for life, and from and after
the decease of A. “unto the issue male and
female of the said A. upon the body, &c.; to
be divided between and amongst them, in
such manner, shares, and proportions as the
said A. shall, by his last will and testament,
limit and appoint.” Held, that the children
of A. took absolutely as tenants in common in
fee.— Crozier v. C., 2 Con. & L. 309; 3 Dr. &
War. 353; 5 I. E. R. 540. (C.)

9. Lands were devised to D. and J. for their
lives, remainder over. By a codicil the testa-
tor, after revoking the remainders, devised the
lands after the deaths of D. and J., or either
of them, to the use of his nephews W. and H.,
and all and every the child and children of W.,
begotten or to be begotten, to be equally divi-
ded between them, as tenants in common, and
the respective heirs of their bodies lawfully is-
suing, with crossremainders between them. W.
had two children who were alive at the death
of D. Held, that the children of W. who were
in esse at the death of D. took as tenants in
common with W. and H., to the exclusion of
any who should afterwards be born.

‘When a devise to a class is not immediate,
but is postponed to a particular period or toa
Creation and

particular event, those only who answer the
description at that period, or on the happen-
ing of that event, are entitled to take.—[ Crone
v. O'Dell, 1 B. & B. 459, approved of.]—Murray
vy. M.,31.C.R. 120. (C.)

1. By indenture, P. granted to L., T., and
S. respectively, their respective executors, &c.,
one annuity, for the life of P., to be charged
upon the lands in the deed mentioned, to hold
to L.,T., and§., their respective executors, &c.,
for the life of P. The deed contained covenants
by P. with L., T., and §., their respective execu-
tors, &c., and their respective heirs and assigns.
The consideration money wasadvancedinequal
shares by L., T., and S. Held, that the deed
disclosed an intention that L., T., and S.,
should take the annuity as tenants in common,
and not as joint tenants, and that a Court of
Equity would carry that intention‘into effect.

Semble, the words were sufiicient to create a
tenancy in common, even in a Court of Com-
mon Law.—Fleming v. F.,51.C. R. 129; 11.
Jur. N. 8. 31. (C.)

2. Persons in whom the shares of copar-
ceners had vested granted a lease for lives
renewable for ever; their interest vested in
the petitioner and respondent. subject to the
lease. The petitioner having filed his petition
for a partition of the lands included in the
renewable lease—Held, that such a suit was
not sustainable. Cantwell v. Hassard, 7 1. C.
R. 370. (C.)—[Affd., zb¢d, 871; 31. Jur. N.
8. 377.]

3. A post-nuptial settlement provided that
if T. and E. (children of the marriage) attained
21, the trustee should assign the lands to
them, their heirs, executors, &c., or the survivor
of them, so attaining 21, his or her heirs, execu-
tors, &c., or unto such persons as he or she,
during his or her life, after attaining age,

_ should by deed or will appoint unto. Held,
that T. and E. took as tenants in common.—
Hickson y. Hill, 3 1. Sur. N. 8.165. (C.)

4. J. obtained a Crown grant of 111 acres
profitable land in M., with all pasture, turbary,
bogs, mountains, to the premises belonging or
in anywise appertaining. K. and F. also ob-
tained similar grants of lands in M. B.
obtained « subsequent grant of “ one quarter
of lands in M., containing 134 acres profitable
land, and also a parcel of bog in common unto
the above lands, called C., containing 236
acres.”

In the Book of Distributions, C. was de-
scribed as bog common to M., 236 acres. The
lands of C. were, from time immemorial, used
for pasture and turbary by the tenants of all
portions of M. J/eld, on petition for partition,
that the representatives of J., of K., and F.
and of M. were tenants in common of C.

The Book of Distributions is admissible
evidence in points relating to property derived
from the Crown, under the Acts of Settlement
and Explanation, at least when the original
survey cannot be produced.

Decree for partition, with reference to the
Master to ascertain shares—Anox vy. The Earl

[TENANCY IN COMMON.]

 

Nature of. 289

of Mayo, 71. C. R.563; Dr. Rep. emp. Napier,
$25. (C.)—[Affd. 9 I. C. R. 192. (C.A.)]

5. When one co-tenant receives more than
his share of the rents of a property, the other
can compel an account, and payment by suit
in Equity—Montgomery v. Swan, 9 I. C.R.
131; 41. Jur. N.S. 213; Dr. Rep. temp. Napier,
520. (C.)

VI. 2. Nature, Rights, and Incidents of a
Tenancy in Common.

6. When one tenant in common of a lease-
hold has paid his share of the head rent, he has
a right to obtain the aid of the Court to com-
pel the other to pay his proportion. The
jurisdiction ought to be exercised with great
caution.—Hungerford v. Whitney, 4 I. C.R.
211. (C.)

7. In 1767, D., seized of one undivided
fourth part of fee-simple and renewable lease-
hold estates, demised it to L. for 999 years, sub-
ject toarent. L. at that time owned another
undivided one-fourth part of the same lands.
L.’s interest vested in 8., who became entitled
to the remaining two-fourths. C. became en-
titled to D.’s interest in the reversion. The
rent was paid to her by S., up to 1828, when
C. died, having devised her interest to the pe-
titioner. On C.’s death, S. denied the peti-
tioner’s title, refused to pay him the rent, and
asserted a title to retain the rent for her own
benefit. This claim appeared to have been
made under a bona fide belief that the title had
devolved upon 8. 8. died, leaving the respon-
dent entitled to her interest, who, in 1835, ob-
tained a renewal of the leasehold lands. In
1857, the petitioner filed a petition to have
the renewal declared a trust for him. Held,
{affirming decision 8 I. C. R.177. (C.)] that
he was barred by the lapse of time from 1828.

A petitioner may read as his evidence a
portion of a respondent’s affidavit, without
making the whole his evidence.—Archbold v.
Scully, Dr. Rep. temp. Napier, 330; 9 I. C. R.
152. (C.A.)—[Revd., 9 H. Lds. Cas. 360.]

8. One of two tenants in common under a
lease, by agreement in writing, let his portion
to his co-tenant, at arent. An action for use
and occupation having been brought by his
representatives after his death, they were
non-suited, on the supposition that the lease
created a joint tenancy; a clause in the
lease that it should create a tenancy in cont-
mon not having been brought under the
Judge’s attention. A petition was thereupon
filed, praying a declaration that the lease,
which was taken for trading purposes, created
a tenancy in common, in Equity; and for
payment of the rent. Held, that as there was
a remedy at Law, the suit could not be main-
tained.

Semble—An action at Law on the special
contract could have been maintained, though
the lease created a joint tenancy.

Held, that as the lease created a tenancy in
common, an action at Law for use and occupa-
tion, or on the special contract to pay the
rent could be maintained.—M- Carthy v. Barry,
91.C. R. 377. (R.)

 

37
290

VIL. 3. Partition of Tenancy in common.

1. In 1809, O., in possession of a fee-simple
estate, died intestate, and leaving one sister,
B., and four nieces. In 1810, an ejectment
on the title was brought on behalf of those
nieces for a moiety of the lands. Defence was
taken: no further proceedings were had. In
1834, the same ptfs. brought a new ejectment.
There were two pleas filed :—that O. and his
sister (mother of the four ptfs.) were illegiti-
mate; and the Statute of Limitations. A
verdict for the lessors of the ptf. was had as to
one-fourth, because a party, in whose name a
demise should have been laid, had been omit-
ted. In 1837, an ejectment was brought, in
that party’s name, for this one fourth. A
verdict for the lessor of the ptf. was set aside
for misdirection, upon the question of adverse
possession. In 1839, a third ejectment was
brought, and a verdict had for the lessor of
the ptf. This verdict was upheld, upon a bill
filed by some of the nieces for a partition.
Held, that neither of those questions were
open to the defts.; and that the ptfs. were
entitled to a decree for partition O’ Sullivan
v. M‘Sweeny, Dr. Rep. temp. Sugden, 213; 2
Con. & L. 486. (C.)

2. In Jan. 1843, C. filed his bill to raise the
amount of a bond debt, under those circum-
stances :—B. passed his bond for £2000 penal
to D., his son, and J., as trustees in the settle-
ment executed on the marriage of his daugh-
ter with A., the plaintiffs father, upon the
ordinary trusts—viz., to A. for life, then to
his wife for life, then amongst the children
pursuant to appointment, or in default, share
and share alike. No appointment was made.
A. survived his wife, and died in 1842. The
entire became vested in the plaintiff by assign-
ment.

In 1803, B., the obligor died, having devised,
subject to the payment of his just debts, &c.,
to his sons TD. and J., the lands of L., in fee,
and the lands of B., B., and G., held in fee-
farm, as tenants in common; and likewise
appointed them his executors and residuary
legatees. They enjoyed the lands of L., as
tenants in common, until the death of D. in
1824, from which time J. enjoyed them alone.
In 1806, D. and J. purchased the fee-rent of
B., B., and G., with the personal assets of B.,
and from that time D. held the lands of B.
and B. in severalty, pursuant to an agreement
for a partition previously entered into. In
1820, D. agreed, with the assent of J., to sell
the lands of G., free from incumbrances, to
A., for £5000, to be allowed out of two judg-
ments of £10,000, obtained by A. against D.,
A., and his son and heir. X. enjoyed the
lands from thence hitherto. D. and J. had
agreed together, shortly after the death of
their father, to pay each a moiety of the bond
debt; and, although A. was not entitled to
receive the principal money of said bond,
passed to him their respective bonds, in which
were included the moieties, as well as personal
debts. Judgments were entered upon the
bonds, and the judgments out of which the
£5000 were to be allowed comprised one of
the moieties. Payment had been made by J.,

 

[TENANCY IN COMMON.—REAL ESTATE.]

or those representing him, on account of the
judgment obtained by A. against him within
twenty years before the filing of the bill. The
principal defendants were N., son and heir of
J., and representing the lands of B. and B.,
and a moiety of L.; X., the son and heir of
A., representing the lands of G.; and Mrs. J.
and Mrs. M. B., co-heiresses of D., represent-
ing the other moiety of L. Mrs. J. also re-
presented a chattel interest called A., that
had been enjoyed exclusively by D. from B.’s
death until its assignment by D. to Mrs. J.
by voluntary deed. The defendants V. and
X. relied on the Statute of Limitations. Held,
that the plaintiff’s demand was not barred by
it; that though the dealings between the
brothers D. and J. did not affect their liabili-
ties as regarded the ptf., still as between them-
selves it rendered each personally liable for a
moiety; that the agreement by D., with the
assent of J., to sell the lands of G. free from
incumbrances, did not render the lands of J.
liable for the moiety of D. in priority to the
sold lands of G.; that the property of D. was
liable for the entire bond debt in exoneration
of G.— Clarke v. Bodkin, 13 I. E.R. 492. (E.E.)

 

VIII. Rea Estate.

1. Generally—its nature and incidents.
2. Charge on lands.
a. Generally.
b. How constituted.
1. In general.
2. To pay debts.
3. To pay legacies, portions, Sc.
c. Paying off charge—how payable—
what fund liable to.
d. Keeping down incumbrances.
e. How discharged, extinguished, or
merged.
f. Incumbrancers’ Rights.
3. Lands agreed to be purchased.
4. Lands agreed to be sold.
5. Exoneration of. See Estate, IX.

 

VIIL. I. Real Estate generally; its nature and
incidents.

8. A father, tenant for life, and his son,
quasi tenant in tail in remainder, of a renew-
able freehold, join, while the son is under age,
in executing a deed, by which the lands are
limited to the father for life, remainder to the
son absolutely, if he survived the father, but
if he died in the father’s lifetime, without
issue, to the father absolutely. The father
subsequently executes a deed, by which he
purports to convey his interest to the son, but
remains in possession, and afterwards obtains
a renewal from the landlord. Thefather and
son afterwards join in conveying part of the
lands comprised in the original settlement,
by which the entail was created; and in order
to enable them to do so, exercise a power of
revocation, which was reserved to them jointly
by the deed executed during the son’s minority.
The son afterwards executes a settlement
upon his marriage, to which the father is no
party, by which he conveys the lands to
trustees, upon trusts, for his intended wife,
Generally.

nd the issue of the marriage, with remainder,
in default of issue, to himself absolutely. The
son survives the father, and dies, leaving issue
female only. The next quasi tenant in tail
files his bill, claiming the benefit of the entail
as still subsisting. Held, that the deed exe-
cuted by the infant was voidable only, and
not void, and that the case of Zouch v. Par-
sons, 3 Burr. 1794, was good law.

That either the exercise of the power of
revocation, or the marriage settlement by the
infant, was of itself a sufficient confirmation
of that deed.

That either the conveyance by the father
to the son, or the descent to the son of the
legal estate, under the renewal obtained by
the father, would have been of itself insuffi-
cient to bar the entail.

A quasi tenant in tail of a freehold pur autre
vie, in remainder, cannot bar the remainders
over without the concurrence of the tenant
for life, but he may bar his own issue.

If the remainderman alien with the consent
of the tenant for life, or obtain a renewal to
himself with such consent, or if the entire
legal interest devolve upon him after the
death of the tenant for life, it is sufficient to
put an end to the entail.

Semble—That if the remainderman survive
the tenant for life, any alienation by him for
valuable consideration, during the life of the
tenant for life, will bar the remainder over.—
Allen v. A. 41. E. R. 472; 2 Dr. & War. 307;
1 Con, & L. 427. (C.) :

1. Where by the deed of a tenant in tail a
voidable estate is created, and the person who
is entitled at Law to avoid the estate is a party
to the deed, and has derived benefit there-
under, so that it would be inequitable in him
to set aside the deed and avoid the estate,
Equity will interfere to prevent him so doing.
In such case the entry of the person having
power to avoid the estate will, in the absence
of positive evidence either way, be deemed an
act of confirmation rather than avoidance.—
Massy v. Batwell, 5 1. BE. R. 3882; 2 Con. & L.
413; 4 Dr. & War. 56. (C.)

2. In a suit to carry into execution the
trusts of a will, it was ordered that the re-
ceiver should pay to H., a feme covert and the
devisee of the real estates, the sum of £400
a-year for her separate use, and on her own
receipt, by way of maintenance. By a deed
subsequently executed, to which H. and her
husband were parties, the estates, subject to
certain charges, were conveyed in fee to such
uses as H. should appoint. In 1839, H., in
consideration of money then advanced to her,
conveyed the estates in mortgage to the plain-
tiff; and, by a subsequent witnessing part, for
the better securing the payment of the in-
terest, assigned the allowance of £400 a-year
to a trustee, with a power to give receipts for
the same, upon trust to pay thereout the in-
terest to the plaintiff, and the residue to the
separate use of H. This deed was registered ;

the memorial of it set forth the several deno--

minations of lands conveyed by it, and stated
that they were subject to certain charges, as

[REAL ESTATE.]

 

Its Nature, §e. 291

the same, or the interest of H., were rightfully
subject to, under certain indentures and ar-
rangements in said mortgage recited; but it
did not mention the assignment of the allow-
ance of £400 a-year. In 1840, H., in consi-
deration of a sum of money then advanced,
mortgaged the same estates to the defendant,
and by a separate deed assigned the allowance
of £400 a-year, upon trust thereout to pay the
interest of the money then advanced, and to
pay the residue to H. These deeds were duly
registered. The defendant had not, when he
advanced the money, actual notice of the as-
signment for the £400 a-year to the plaintiff,
but he had notice of the plaintiff's mortgage.
After the execution of the defendant’s mort-
gage deed, and before the payment of the
money, the defendant gave notice of the as-
signment to him of the allowance to the
receiver; the plaintiff then gave notice of the
assignment to his trustee, and afterwards the
defendant obtained an order in the cause, that
the receiver should pay the allowance to his
trustee. Held, that the allowance of £400
a-year was not a chose in action; but that it
was a portion of the estate of H. in the lands,
and not an interest therein distinct from the
estate vested inher. That the memorial of the
first mortgage was a sufficient memorial of the
assignment of the £400 a-year to the trustee of
the plaintiff. Actual notice of the memorial
of a deed, which, from the memorial, appeared
to be conversant with all the estate of the
grantor in the lands, is such notice of an
assignment of a partial interest of the grantor
in the same lands, made in trust for the same
grantor, by the same deed, but not mentioned
in the memorial, as will avoid the effect of
a subsequently registered assignment of the
partial interest.—Rochard v. Fulton, 71. E. R.
131; 1 Jon. & L. 413. (C.)

8. A power to trustees to lay out money
“in the public stocks or funds in Great Bri-
tain, or on any mortgage of freehold or lease-
hold estates, or any other real securities in
England, Wales, or Ireland,” does not autho-
rise them to lend it on the security of a
judgment, even since the 3 & 4 Vic., c. 105, s.
22.—Johnston v. Lloyd, 7 I.E. R. 259. (C.)

4. A person joining in a conveyance of all
his estate, &c., in one right, transfers to the
purchaser all the title he has in any other
right.—Drew v. Lord Norbury, 9 I. E. R.171;
3 Jon. & L. 267, (C.)—[Affd. on rehearing,
91. E.R. 524. (C.)]

5. A., having obtained a judgment in 1789
against B., who was then seized of several
estates; B., in 1792, died, and devised one
denomination to ©. and another to D. C., in
1796, married, and settled the estate devised
tohim. The executors of A., in 1828, revived
the judgment of 1789 against C., the heir, and
terre-tenants, and thereupon issued an elegit
and obtained a finding thereunder, before the
passing of the 9 G. 4,¢. 35, but were prevented
from getting into possession by the proceed-
ings of a prior creditor. The judgment was
not revived or redocketed within five years
292 Its Nature.

from the passing of the Act, according to the
8rd sec. On a Dill filed within twenty years
from the revival of 1828 against E., claiming
under the settlement of 1796, and D.and other
parties—Held, that notwithstanding the revi-
val of 1828, the elegit and other proceedings
thereunder, no possession having been ob-
tained, the plaintiff was barred as against E.
by the 8rd sec. of the 9 G. 4, 6. 35. That the
judgment creditor (having a legal right and
proceeding against the legal estate of his
debtor) by his omission to redocket—thereby
exonerating one denomination of land origi-
nally liable, and casting the entire debt upon
the other, without affording a right of contri-
bution to that other—did not thereby lose his
right to go against that other for the whole
amount, and that no equity existed to restrain
such creditor to the amount to which that de-
nomination was originally liable.

Held also, that a judgment creditor filing a
bill in a Court of Equity for a sale of his de-
ceased debtor’s freehold estate, need not aver
on the face of his bill that he had sued out an
elegit on his judgment.—Ryan v. Cambie, 9 I.
E. R. 378. (E.E.)

1. A. devised part of his real estates to his
son W., in settlement, and other parts in fee,
and the residue not specifically devised, to W.,
whom with E. he appointed executor and exe-
cutrix. A. by codicil, reciting the death of
W. and the devises of the particular estates to
him, devised the aforesaid estates in case E.
should die without issue in his wife’s life, to
his wife for life, with remainder to R., and ap-
pointed E. his “sole executrix and residuary
legatee.” A. died seized of other estates than
those specifically devised. Held, that E. did
not take the residuary realty—Hillas v. H.,
10 I. E. R. 184. (C.)

2. A conveyance to an alien vests a legal
estate in him until office found; and a convey-
ance in trust for him vests in him an equi-
table estate until the Crown establishes its
right by information in Equity. But an alien
cannot take by act of Law, e. g., by descent or
courtesy.— Dumoncel v. D., 13 I. E. R. 92. (R.)
[See Doyle v. Dumoncel, 11 I. E. R. 342, 517.]

3. A marriage settlement contained a limi-
tation of the husband’s estate to the daugh-
ters of the husband, as tenants in common in
fee. Held, that such a limitation did not
come within the doctrine laid down in Clayton
v. Earl of Winton, 3 Madd. 302, so far as it
affected the daughters of a future marriage ;
because its avoidance, so far as it affected
such daughters, did not in any way prejudice
its validity as to the daughters of the mar-
riage; and that, as regards the former class,
it could not, in the absence of special reasons,
be deemed to have been stipulated for by the
husband, whose estate was being settled, nor
by the wife. Held, therefore, that so far as it
affected that class it was voluntary, and,
therefore, void against a purchaser for value.
—In re Cullin’s Estate, 91. Jur. N. 8S. 117;
141. C. R. 406. (L.E.C.)

 

[REAL ESTATE.]

 

Charge on.

VIII.’ 2. Charge on Lands.
a. Generally.
b. How constituted.
1. Generally.
2. To pay Debts.
3. To pay Legacies, Portions, §c.
v. Paying off Charge: how payable: what
fund liable to.
d. Keeping down Incumbrances.
e. How discharged, extinguished, or merged.
f. Incumbrancers’ Rights.

 

VII. 2. a. Charge on Lands: generally.

4, V., by will, directed that, as to £10,000,
charged by settlement on real estate (and pay-
able to V., her executors, &c., after O.’s death,
the interest to be payable out of the rents and
profits during O.’s life), her trustees should
raise so much thereof as would pay her debts
and legacies remaining unpaid after what-
ever money and other personalty she died
possessed of had been exhausted in paying her
debts and legacies. On demurrer to a bill to
raise a legacy—Held, that the charge on the
real estate for debts, &c., being merely contin-
gent on the insufficiency of V.’s personalty,
and there not being an allegation that the
personalty was deficient, it did not appear
that the realty was liable, or that there
was any trust thereof to prevent the Statute
of Limitations operating against ptf.’s de-
mand.— Cocking v. Golding, 4 I. E. R. 169. (R.)

5. C., devisee for life, and B., remainder-
man in fee, were directed by V., the testator,
to apply “any sum, not exceeding £400 a-
year,” to maintain V.’s eldest son, D., a luna-
tic. V. charged that sum upon his estates,
and appointed C. and B. to be D.’s committee.
After the deaths of C. and D., the Court fixed
an allowance of £280 a-year. After D.’s death
—Held, that, as between the owner of the
estate and D.’s administrator, the former was
entitled to the difference between £280 and
£400 a-year.

The committee of a lunatic is beneficially
entitled to the savings out of the lunatic’s
allowance.—In re Ponsonby, 5 I. E. R. 268;
3 Dr. & War. 27; 2 Con. & L. 30. (C.)

6. As against a purchaser for value from a
devisee, realty cannot be charged with simple
contract debts of which the purchaser had no-
tice, if there was not fraud on his part. It is
immaterial that the devise was of the re-
sidue.—Roche v. R., 71. E. R. 4386 (C.).—[See
8 I. E. R. 638; 2 Jon. & L. 561. (C)]

7. A marriage settlement provided that any
deficiency in the jointure should be charged
on X. and Y., and declared that until the
death of A. (tenant for life of Y.) the defi-
ciency should be borne exclusively out of X.,
and no part out of Y., but that, after A.’s
death, X. should be released from all future
payments of the deficiency, which thencefor-
ward should be borne out of Y., and not out
of X. From the whole settlement it appeared
that the intention was to secure the jointure
at allevents. Held, that the deficiency should
be charged on both X. and Y. at the same
Charge on.

time; and that declaration was confined so as
to affect only the arrangement between the
two estates themselves.—Sullivan v. S., 71. HE.
R. 453; 1 Jon. & L. 678. (C.)—[Sees. c. 81.
E, R. 685; 2 Jon. & L. 769. (C.)]

1. A testator, V., directed that his debts,
and all charges and incumbrances affecting
his. estates, should, first, be paid out-of all
ready money and securities for money of
which he should die possessed; and charged
his estates of C., exclusively, with payment of
any debts which should then remain unpaid.
As to the undisposed of residue (including C.)
of his realty, V. devised it upon trust for his
wife for life, and bequeathed to her, if she
survived, all his personalty so before be-
queathed. V. then bequeathed a legacy, pay-
able immediately after his decease, and two
others payable on his wife’s decease. V. ap-
pointed her executrix. Held, that the lega-
cies were not charged on C.; and that V.’s
money, which at his death was in the hands
of a salesmaster, was not “ready money.”—
Smith v. Butler, 7 1. HE. R. 467; 1 Jon. & L.
692. (C.)—[On exceptions to report, 91. E.R.
898; 3 Jon. & L. 565. (C.)]

2. The Lagan Nav. Act created a joint
stock company, and enacted that it should be
lawful for every subscriber and person advanc-
ing money under the Act, and through whose
estate the navigation passed, to charge his
real estate for the use of his younger child-
ren, with the payment of such sums or other
interest in.the joint stock as he should assign
or bequeath to his heer, it being deemed fit
that the proprietors of estates through which
the navigation passed should have an interest
init. A., through whose estate the navigation
passed, being tenant for life, with powers of
jointuring and leasing, with remainder in tail
to his eldest son, B., made advances and took
shares prior to 1791. In that year A. and B.
suffered recoveries, and limited the estates
anew, subject to a joint power of appoint-
ment, under whivh in 1792, they appointed
the estates, subject to all powers vested in A.,
to X., in order that he might join in a re-
settlement; and by a re-settlement in 1792,
reciting A.’s powers under the deed of 1761,
and an agreement to re-settle the estate, sub-
ject to the powers thereinafter mentioned,
they were conveyed to A. for life, remainder
to B. for life, remainder to his first and other
sons in tail, subject to a term and jointure
under the deed of 1761, but with no saving of
any other powers, and giving a new power to
jointure, and new and different leasing powers
to A., and other usual powers to him and B.
A. made further advances ; devised his shares
in the navigation to B.; and charged their
amount on the estate for his younger son.
Held, that the power to charge as given by the
Act would not be destroyed by the recovery
alone, unless the parties intended it.

That the re-settlement in 1792 amounted to
a contract not to exercise the power as to
past advances, and the power to charge could
be exercised by A. only as to subsequent
advances.

[REAL ESTATE]

 

Generally. 293

That the direction to give the shares to his
heir was complied with, and the power well
exercised by giving them to B., though he
was only tenant for life in remainder.

The younger son, in whose favour the
charge was made, being also A.’s executor,
got possession of debentures representing
As shares, and having lost them, joined in
application for newshares, which were granted
on the face of them in lieu of the old ones,
and delivered them over to B., the tenant for
life. Held, that there being no fraud, this
transaction did not affect his right to the
charge under A.’s will.

Costs rendered necessary by assignments of
family charges are not subject to the same
rule as in mortgage cases, but must be borne
by the charge assigned, and not by the es-
tate.—Stewart v. Marquis of Donegal, 8 I. E.
R. 621. (R.)

3. A., possessed of a term for years, be-
queathed all his estate therein upon trust to
permit his sister to enjoy a part of the lands
for life, and then to pay his wife an annuity
for her life, and then to pay D., B., and C.a
yearly sum of £20 a-piece during their re-
spective lives, and after their respective
deaths, same to be paid to their respective
children lawfully begotten, male or female;
and if any of said D., B., and C. should die
before he attained age, or should have no
issue lawfully begotten, the annuity of such
of them as should so die should go to and be
equally divided between the survivors or sur-
vivor; and after payment of said annuities
to permit W. to receive out of the remaining
profit rent £70 a-year, the remainder of the
profit rent to be retained to discharge re-
newal fines; and after the death of his wife,
and after payment of the rent and renewal
fines, and the three annuities of £20, then to
permit W. to receive the rents (except the
part bequeathed to his sister for life), re-
mainder to J. for life, remainder to the first
and every other son of J. Held, that the
annuities of £20, bequeathed to A., B., and C.
were perpetual.— Courtenay v. Gallagher, 5 I. C.
R. 154. (R.)—[Affid., ib¢d, 356. (C.)]

4. By settlements of 1784 and 1808, the
estates X. and Y. were subject’to a charge of
£34,500 for the younger children of D. By
articles executed on the marriage of G., one
of the younger children, it was recited that
D., and B. his eldest son, contemplated the
execution of deeds for the arrangement of
their several estates, in which it was intended
that estate Y. should be subject to £8000,
part of asum of £42,500, which D. was em-
powered to charge on estates XK. and Y. for
such purposes as he might think fit, and of
which it was the intention of D. to settle
£8000, in full satisfaction of all claims of G.
upon both estates; and that the said D. and
B. had agreed that G.’s portion should be
£8000, and that it was agreed that part of the
intended wife’s fortune, together with £5000,
part of the sum of £8000, so thereby agreed
to be charged on both estates, should be ves-
ted upon trusts; and D. and B. covenanted
294 Charge on.

within six months to convey estates X. and
Y., to the intent that D. might effectually
charge and incumber both estates with
£42,500; and D. covenanted within six
months to charge estate Y. with £8000, as
the portion of G., £5000 of which was to be
paid in two years after the death of D., and
£3000 after the death of the survivor of D.
and his wife, with interest until paid; and D.
and B. covenanted for further assurance for
the more effectually carrying into effect the
articles, and charging all the therein before
mentioned lands with the sum of £8000. By
a subsequent deed, D. and B. conveyed both
estates X. and Y. to trustees for 5000 years,
upon trust to raise £38,500 (which sum was to
be’ substituted for the £42,500), and to pay
£19,500 to G., and three others of the younger
children of D., who were unprovided for, in
such shares as D. should appoint, and in de-
fault of appointment, equally; and as to the
£19,000, residue of said sum of £38,500, in
trust for D., provided the said sum of
£19,500, should be taken by G. and his sisters
and brother in full satisfaction for their por-
tions under the deeds of 1784 and 1808.
Held, that the £8000 provided by the articles
was a charge on both estates X. and Y.; and
the latter proving insufficient to pay it, D.
might resort to the former for the balance.

+ G. proved another charge in a foreclosure
suit. The report, which was confirmed by a
final decree, found that there were no other
charges affecting the lands of X. G. after-
wards obtained an order giving him liberty to
prove his claim for the balance of the £8000.
Held, that the order was irregular, and the
Court refused to confirm a report made under
it.— Gurney v. Oranmore, 5 I. C. R.163. (R.)—
(Affd. 5 I. C. R. 436. (C.)—Affd. Montefiore
¥. Browne, 7 H. L. Cas. 241.]

1. A., tenant for life of the lands of K.,
in strict settlement, with a power to charge
them with £2000, by deed or will, by will,
reciting the power, disposed of the £2000 in
legacies to his nephews and nieces; “which
said several legacies, making in the whole the
sum of £2000, to be raised and paid out of
the lands of K., pursuant to the power given
to me by the said deed, and by virtue of every
other power in me vested; the said sums here-
by bequeathed to be raised and paid out of
the said lands to such of the legatees as are
married, as soon after my death as reasonably
may be, and to such other of the legatees as
are not married, on their respectively attain-
ing 21 or marrying.” Then followed a gift
over of the share of any legatee dying before
21 or marriage. The will contained a re-
siduary bequest to B., whom A. appointed
residuary legatee. One of the legacies lapsed
by reason of the death of the legatee in A.’s
lifetime. Held, that the lapsed legacy was
part of the residue of A.’s personal estate.—
In re Osborne, 71. C. R. 546. (L.E.C.)

2. A., was possessed of two estates, X. and Y.
Both were sold in the L. E.C. X. was subject
to a mortgage and prior incumbrances. Y.
was subject to the prior incumbrances, but

[REAL ESTATE]

 

Constitution of.

not to the mortgage. A subsequent judgment
affected both estates. Held, that the mort-
gagee was entitled to have the securities mar-
shalled, so as to have the prior incumbrances
paid in the first instance, as far as possible,
out of the produce of the lands of Y.; and
that the subsequent judgment creditor had no
equity modifying the mortgagee’s right in
that respect.—In re Scott’s Estate, 14 I. C. R.
63. (C.A.)

3. In 1817, A. executed a settlement pur-
porting to comprise X. In 1852, A.’s title
to X. for the first time accrued by virtue of a
conveyance from the I. E. Court. Subse-
quently A. devised X. to B. C., tenant in
tail under the settlement of 1817, and D.,
who claimed as mortgagee of C., sought,
as against B., to have X. bound by the
limitations in that settlement. Held, that
A., and consequently B., took X. discharged
from these limitations—Jn re Burke’s Estate,
161.C. R.129. (L.E.C.)

 

VII. 2. b. How constituted.

1. Generally.
2. To pay Debts.
3. To pay Legacies, Portions, &c.

 

VIII. 2 b. 1. How constituted, generally.

4. Testator, by will, which was confined ex-
clusively to real estate, after dividing same
among the several members of his family, con-
cluded by “desiring that all his just debts
should be paid as soon as convenient after his
decease.” Held, that the debts were charged
upon the real estate. Harding v. Grady, 1 Dr.
& War. 430; 41. E.R. 371. (C.)

5. By marriage settlement of 1810, between
P. of the first part, M., his sister, of the second
part, T. of the third part, and trustees of the
fourth part, after reciting various unsettled
demands which M. had upon P., and that he
had agreed to secure for her marriage portion
the sum of £5000, and that M. had, in con-
sideration thereof, agreed to release P. from
her claims upon him, and that in pursuance
thereof, P. had given his bond and warrant in
the sum of £10,000 to the trustees of the
settlement, £5000 was settled on trusts, and
M. released P. from her claims. This settle-
ment contained an agreement “that any judg-
ment to be entered on the bond should not
affect or be a charge on the lands of K., part
of the estate of P., which said lands P. intends
to convey to trustees in strict settlement for
family purposes.” It was thereupon agreed
that the trustees should not enter judgment
on the bond before next M. Term. By settle-
ment on the marriage of P., in 1819, he con-
veyed the lands of K. to trustees in strict
settlement, reserving the ultimate reversion
to himself infee. In E. Term, 1814, judgment
was entered upon the bond for £10,000; and
in 1831, P. died intestate and without issue,
and indebted to a very large amount by judg-
ments on bonds with warrants. His wife had
died in his life-time. Hedd, that the judgment
Constitution of

of E. Term, 1814, was charged upon the re-
version in fee of K.—Houston v. Barry, 5 I. E.
R. 294. (H.E.)

1. An incumbrancer agreed to advance a
sum of money to preserve the lands of K. from
eviction for non-payment of rent; and took
a security by deed affecting K. and other
lands, for the repayment of the money. She
afterwards paid the rent and redeemed K.
Held—that she was entitled, as against a per-
son who was an incumbrancer on the lands at
the time when they were redeemed, to be paid
the sum advanced, in priority; and that as
full effect could not be given to her security
by deed, she was remitted to her lien.— Kehoe
v. Hales, 5.1. E. R. 597. (E.E.)

2. C. executed his bond with warrant of
attorney ; and in 1799 devised his real estates
in trust to sell and pay his debts, and subject
thereto to his co-heiresses and their heirs.
He died in Feb. 1804. In March 1804, the
obligee in the bond caused judgment to be
entered on it as of the preceding Term. In
1826, the co-heiresses of C., for value, conveyed
his real estates, subject to his debts, to W.
and his heirs. The judgment of 1804 was not
revived or redocketed pursuant to the 9 G. 4,
¢. 35. Held, that it was a valid charge affect-
ing the real estates of C, in the hands of W.
Cockburne v. Wright, 61. E.R. 1. (E.E.)

8. A. by will directed her debts to be paid,
and devised her real estate to her brother, and
directed that all costs due to her law agent
should be paid out of the real estate so de-
vised. She died in 1813, indebted to her law
agent in a considerable sum for costs, and also
on a promissory note. The owner of the real
estate and the executors of A. resided out of
the jurisdiction of the Court from 1815; but
in 1817, a sum of money was paid by the agent
of the owner of the real estate to A.’s law
agent, who, in 1819, filed a bill to recover his
demand out of the assets of A. In conse-
quence of the defendants being out of the
jurisdiction no subpeena was served. In 1828,
the executrices of the law agent filed a bill of
revivor, but the defendants being still out of
the jurisdiction, no subpcena was served. In
1838, another bill of revivor was filed, and
subpena served upon the defendants, who
were still out of the jurisdiction. Held, that
the filing of the bills of 1819 and 1828 was
sufficient to save the bar of the Statute of
Limitations.

That the estate was charged with the amount
of the promissory note as well as the costs.—
Foster v. Thompson, 6 I. E. R. 168; 2 Con. &
L. 568. (C.)

4. A fine by a tenant in tail though levied with
a different intent, operates in the first place
to confirm any incumbrance previously cre-
ated by him by a voidable conveyance.—
Loyd v. L., 2 Con. & L. 592. (C.)

5. K. devised a fee-simple estate to his
eldest son, F., in tail male, with a power to
charge £200 each for his daughters ; remain-
der to his second son, W., in tail male: and

[REAL ESTATE.]

 

Charge on. 295

left legacies of £100 each to his ten younger
children, but did not charge them on the
estate. On the marriage of F., a portion of
his lady’s fortune was applied in discharge
of these legacies. F. died without issue male,
but leaving two daughters, who entered into
possession, claiming under a prior will by
which F. was made tenant in fee. An eject-
ment was brought by W. There was a refer-
ence to arbitration, a bill and cross bill, and
a decree in 1816 establishing the later will;
and declaring that whatever the Master
should find had been paid by F. in exone-
ration of the estate should be charged on
it. This decree was not enrolled. In 1820
the Master found that certain sums had been
advanced by F. to pay the legacies to his
brothers, and in exoneration of the lands, and
among others £100 paid to W., as one of the
younger children. ‘There was a final decree
in 1881, by which the report was confirmed,
and a sale ordered, to pay the said sums. In
1840 a bill was filed to reverse the proceed-
ings in the cause and the decrees of 1816
and 1831. Held, that as the decrees did not
declare the legacies a charge on the lands,
and as it-did not appear on what the Master’s
report was founded, there was no error ap-
parent on the face of the record ; and that as
to W.’s £100, the decree was right.

Difference between a bill of review, and
a bill in the nature of a bill of review, and
doctrine of the Court respecting them.

Time for bringing a bill of review.—Kelly
y. Lennon, 71. E. R. 98; 1 Jon. & L. 305. (C.)

6. A settlement charged a jointure on X.
and Y.; and declared that until the death of
A. (tenant for life of Y.) it should be borne
out of X.; but after that, that X. should be
released, and it should be borne out of Y. and
not out of X., although it was held to be
charged on both estates at once, yet as be-
tween the estates themselves it was Held, that
Y. should be wholly exhausted, to indemnify
X., before the latter was resorted to.

A settlor having two estates, limited both
to himself for life, then to secure a jointure
charged on X. until a third person died, and
then on Y., with a power to remove the
charge from both by giving other security;
then as to X. to the issue of the marriage
in settlement, and as to Y. to himself and his
heirs. He then covenanted to charge £3000
for children’s portions, and that it should be
the first charge on all property he should die
seized or possessed of, and have priority over
all other charges thereon. Held, that the
£3000, not attaching on any property during
the settlor’s life, was at his death a charge on
Y. only, and was puisne to the jointure on it.—
Sullivan v. S., 8 I. E. R. 685; 2Jon. & L. 769.
fog ee s.c. 71. E, R. 453; 1 Jon. & L. 678.
C.)

7. A., having an estate charged with his
wife’s jointure, but held for an interest which
must expire immediately after his own death,
devised to his son all his property, subject to
the jointure and £70 per annum for his wife;
which £70 he thereby charged on all his pro-
296 Constitution of
perty. Held, that the eae! was not charged
by implication.—Doolan v. Smith, 9 I. E.R.
426; 3 Jon. & L.547_(C.).—[See 2 Jon. & L.
747. (C.)]

1. Redemption money advanced with the
consent of the inheritor, by the assignee of a
disputed judgment, is a lien upon the lands,
and a good equitable incumbrance.

The Court will interfere by # receiver to
preserve a property where there is danger of
eviction, even although the plaintiff's demand
is disputed, if he has a prima facie right.—
Fetherstone v. Mitchell, 91. E. R. 480. (R.)

2. The conuzor of a judgment, being seized
in quasi fee, became, by a deed prior to 1840,
tenant for life of the lands, and created
charges on them. The judgment creditor sub-
sequently advanced sums to save the lands
from eviction, and filed a bill for a sale during
the conuzor’s life. The rent being again in
arrear, he made further advances ,to pay it
under an order in this cause. Held(Moore, J.,
dissentiente) that as a salvagor he was entitled
to a sale of the quasi fee, though he could not
have a sale as judgment creditor against the
remainderman or creditors prior to 1840.—
Fetherstone v. Mitchell, 11 I. KE. R. 35. (C.)

8. A sub-tenant having redeemed his land-
lord’s interest by advances for head rent, filed
a bill for the sale of that interest, and subse-
quently made further advances for the same
purpose. Held, that these several advances
were the first charge on the mesne landlord’s
interest in priority to incumbrances prior in
date, and that the salvagor was entitled to
a sale for payment.—Locke v. Evans, 111. E.
R. 52. (E.E.)

4. Where an agent, having knowledge that
a judgment debt is due to his principal, and
affects premises of which the principal is land-
lord, and against which he has a judgment in
ejectment for non-payment of rent, deals with
a mortgagee of the tenant’s interest in the
same premises, and permits him to engage for
their assignment to a third party, who ad-
vances money to redeem them from eviction
under the judgment in ejectment, without
informing the mortgagee, until the premises
were redeemed, of the existence of the judg-
ment debt—Held, that the money advanced
to redeem the premises from eviction was a
charge on the premises prior to the judgment.
Abercorn v. Bristowe, 11. Jur. N.S. 57. (C.)

5. An owner in fee, having granted an an-
nuity for aterm of years determinable with
the life of the grantee ; Held, that a bill lay
in equity after the death of the grantee to
raise the arrears by a sale of the lands, though
there was no trust term to secure the annuity.
Laches in enforcing an annuity charged on
lands in settlement, whereby a remainderman
is charged with arrears payable by a prior
tenant for life, is no defence to a suit by the
annuitant.—Harrison v. Mason, 12 I. BE. R.
244. (C.)

6. In Jan. 1843, P. filed his bill to raise the

[REAL ESTATE,]

Charge on.

amount of a bond debt, under these circum-
stances :—B. passed his bond for £2000 penal
to his son D., and J., as trustees in the settle-
ment executed on the marriage of his daugh-
ter with C., the plaintiff's father, upon the
ordinary trusts—viz., to C. for life, then to
his wife for life, then amongst the children,
pursuant to appointment, or in default, share
and share alike. No appointment was made.
C. survived his wife, and died in 1842. The
entire vested in the plaintiff by assignment.

In 1803, B. died, having devised, subject to
the payment of his just debts, &c., to his sons
D. and E., the lands of L., held in fee, and
the lands of B., B., and G., held in fee-
farm, as tenants in common; and likewise
appointed them his executors and residuary
legatees. They enjoyed the lands of L. as
tenants in common until the death of D., in
1824, from which time E. enjoyed them alone.
In 1806 D. and E., purchased the fee rent of
B., B., and G., with the personal assets of B.,
and from that time D. held the lands of G. in
severalty, pursuant to an agreement for a par-
tition previously entered into. In 1820, D.
agreed, with the assent of E., to sell the lands
of G., free from incumbrances, to C., for £5000,
to be allowed out of two judgments, amounting
to £10,000 obtained by C. against D. C. and his
son and heir, K., enjoyed the lands from thencé
hitherto. D. and E. had agreed together shortly
after the death of B. to pay each a moiety of the
bond debt; and, although C. was not entitled to
receive the principal money of the bond, passed
to C. their respective bonds, in which were in-
cluded those moieties as well as personal debts.
Judgments were entered upon the bonds, and
the judgments out of which the £5000 were to
be allowed comprised one of the moieties.—
Payment had been made by E., or those re-
presenting him, on account of the judgment
obtained by C. against him within twenty
years before the filing of the bill. The principal
defendants were M., son and heir of E., repre-
senting the lands of B. and B., and a moiety of
L.; K., the son and heir of C., representing
the lands of G., and Mrs. J. and Mrs. M. B.,
co-heiresses of D., representing the other
moiety of L. Mrs. J. also represented a chat-
telinterest called A., that had been enjoyed
exclusively by D. from the testator’s death
until its assignment by D. to Mrs. J. by volun-
tary deed. :

The defendants, M. and K., relied on the
Statute of Limitations. Held, that the plain-
tiffs demand was not barred by the Statute of
Limitations.

That though the dealing between the
brothers did not affect their liabilities as re-
garded the plaintiff, still, as between them-
selves it rendered each personally liable for a
moiety.

That the agreement by D., with the assent
of E., to sell G. free from incumbrances did
not render the lands of E. liable for the
moiety of D. in priority to the sold lands of G.

That the property of D. was liable for the
entire bond debt in exoneration of G.— Clarke
y. Bodkin, 13 I. E. R. 492. (E.E.)

 

7. In an ante-nuptial settlement conferring
Charge on.

considerable benefits upon the husband, A., in
the property of the wife, to which it chiefly re-
lated, which settlementrecited thatit was made
by the wife “in consideration of the marriage
and of the provision thereinafter made and pro-
vided for her by A.,” he covenanted “that
whatever estates and property, whether real
or personal, and wherever situate, or either or
both, should, in the event of his decease, if
the wife should survive him, be charged and
chargeable with, and subject to, the payment
of an annuity or yearly rentcharge of £250, to
be paid and payable to her and her assigns
during so many years as she should live, be-
sides and in addition to the provision hereby
made and intended for her.” With the ex-
ception of a contingent reversionary in-
terest in a policy ot assurance for £3000, on
the life of A., which policy was subject to
a debt of £2000 and interest thereon at £4
per cent., there was not any provision made
out of his property for her beside the annuity
of £250. At the period of the marriage he
was engaged in trade, and was seized of the
real estate. Subsequently he acquired other
real estate, and afterwards became bankrupt.
Held, that the annuity of £250 was well
charged both upon the real estate of which
he was seized at the marriage and upon the
real estate which he subsequently acquired.—
White v. Anderson, 1 1.C. R. 419. (C.)

1. When a mixed and general fund of real
and personal estate, in the nature of a resi-
duary fund, is created by a testator, to pay
his debts and legacies, and for the general
purposes of his will, the costs of a suit, con-
versant about the disposition and administra-
tion of that general fund, will be properly
payable out of the whole of it, and must be
borne rateably by the real and personal estate
constituting that: fund. And this is so, al-
though by lapse of time, or by the operation
of law, the whole or part of that fund becomes
undisposed of, and returns to the heir-at-law
or next-of-kin.

Where « mixed fund is dedicated by the
testator to certain specific purposes and dis-
tinguished by him from his general personal
estate, that part of the mixed fund, which
consists of personal estate only, will be re-
sorted to for payment of costs, if the general
personal estate be insufficient to defray
them.

Where a mixed fund is dedicated to spe-
cific purposes, and directed by the testator,
on the occurrence of a certain event, to sink
into and become part of his general personal
estate, and that event does not happen, if the
general personal estate prove inadequate to
discharge the costs, their payment will be de-

-ereed out of that portion of the mixed fund
which consists of personalty only.—Cane v.
Fitz Gerald, 21. C. R. 216. (C.)

2. A. devised lands in trust for R. for
life, with remainder to his first and other
sons successively in tail male, with remainder
over, and directed that R. “shall charge and
incumber” those lands “for the younger child-
ren of R., or of such person as shall be

[REAL ESTATE.]

 

Constitution of. 297

seized of the same, under the limitations be-
fore mentioned, with a sum not exceeding
£2000.” The testator died in 1794. R. in
1825, his creditors then being in receipt of the
rents and profits of the lands, executed a
deed charging the lands with £2000 for his
daughters M. and C., share and share alike,
with legal interest from the date of the deed
until the time of payment. R. died in 1848,
without any issue except M. and C. Held,
that the £2000 was a valid charge upon the
lands in favour of M. & C.

That interest was payable upon that sum
from the death of R. only, as he must be pre-
sumed to have kept down the interest payable
during his life.—Hinds v. H., 2.1. C. R. 227;
21. Jur. 105. (C.)

3. E., by ante-nuptial articles under seal,
covenanted to purchase lands, and to charge
them with a jointure for his wife. He also
professed to charge all property of which he
should during coverture be seized with the
jointure. Those articles were registered. He
afterwards purchased the lands of U., but did
not execute any conveyance to charge them
with the jointure; and subsequently mort-
gaged U. to J. (who had not notice of the
articles), by deposit of title deeds, no convey-
ance having been executed to J. Held, that
the jointure was to be paid in priority to the
equitable mortgage.

Quere—Whether Gubbins v. G., 1 Dr. &
Wal. 160, n., ever was decided, or would now
be treated as a binding authority ?—Creed v.
Carey, 71. C. R. 295; 31. Jur. N.S. 128, (C.
A.)—[ Gubbins v. G., considered; Re Olden, 9
I. Jur. N.S. 297. (B.)]

4. By articles, under seal, between X.,
father, and Y., his eldest son, in consideration
of the son’s intended marriage, X. granted an
annuity, during his life, to the son; and it
was agreed that after X.’s death the son
should pay B.,a daughter of X., an annuity
of £15 a-year; if she should marry without
assent, the annuity to return to the son. After
limiting the lands, the articles concluded—
“ And it is further agreed that the said X. is
to give up to the said Y., after his death, all
the said lands, he, the said Y., paying and ful-
filling all and every the said covenants recited
in this article.” Held, that these articles
operated as a covenant to stand seized, and
that Y. took the estate subject to B.’s annuity.
Maguire v. Scully, 12 I. C. R. 153. (C.)

5. §., in 1854, purchased several denomina-
tions in the I. E. Court, as trustee for E.
Before the conveyance was executed, E. agreed
to sell them to §., in consideration of a bill
of exchange for £10,000, and a mortgage upon
them.

S. forged a conveyance from the I. E. Court,
and executed for value a conveyance to W.,
reciting the forged conveyance as if genuine.
Afterwards the L. E. Court executed acon-
veyance to &., reciting the purchase-money
to be E’s,

Held, that no interest under the genuine

38
298 Charge on

deed passed by estoppel to W., so as to give
him priority to E.’s demand.

That E. had a lien for the amount of the
bill. Eyre v-,Sadleir, 14 I. C. R. 119. (C.)

1. A legacy, payable to the legatee at 21,
was charged primarily on the testator’s (A.’s)
personalty ; and on his realty, failing sufficient
personal assets. At his death the personal
assets were sufficient, but, owing to a devas-
tavit by the executors, became at some subse-
quent unascertained time inadequate.
legatee (the petitioner) attained 21 in 1849,
The petition was filed on the 26th Jan. 1863.
Held, that the mere non-enforcement of pay-
ment from an executor is not laches to estop
the legatee.

That the real estate of A. is liable to pay
the legacy.

Semble—There might have been laches if the
executors had appropriated a fund to pay the
legacy, and that fund had been permitted to
remain in the executors’ hands.—Jn re Massy’s
Estate, 14 I. C. R. 355; 8 I. Jur. N.S. 374.
(1.E.C.)

2. By articles executed in 1784, before the
marriage of A., lands were covenanted to be set-
tled on A., for life, remainder to trustees for a
term, to raise £3000 for two or more younger
children of the marriage, payable at 21, or
marriage, with power to A. to appoint this sum
as he might think proper among the younger
children; remainder to the first and other
sons of the marriage successively in tail male ;
remainder to the daughters, as tenants in
common in tail. There was issue of the mar-
riage, ason, T., and two daughters, M. and 8.
On the marriage of M.,in 1807, A. appointed
to M. £2000, part of the £3000 which was
assigned to the trustees of her settlement. T.,
on attaining age, joined A. in suffering a re-
covery, and the lands were resettled on A.
for life, remainder to T. in fee. T. died in
1821, intestate and unmarried, leaving M. and
S. his co-heiresses. On the marriage of S.
with R. a settlement was executed, dated 14th
April 1823, by which A. and §., after reciting
their title to the estate; but without taking
any notice of the charge of £3000, conveyed
S.’s moiety of the lands, upon trusts for the
benefit of R., S., and their issue. In 1825, A.
died, without making any further appointment
of the charge of £3000; and on the 10th of
December 1825, S. and R. executed a deed,
purporting to assign £1000, the unappointed
residue of the £3000 charge, to the trustees
of the Provincial Bank. It being conceded by
all parties that the marriage articles should
be construed as if they contained a hotchpot
clause. Held, that in consequence of the
execution of the settlement of S., her £1000
was not a subsisting charge on her moiety ;
that it could not be raised out of M.’s moiety ;
that M. was entitled to have £500, part of
her appointed share of £2000, raised out of
S’s moiety—[Savage v. Carroll, 1B. & B.
265, disapproved of.—Tenison v. Moore, 13 I.
E. R. 424, followed.]—Jn re Norcott’s Estate,
144LC.R.315. (L.E.C.)

[REAL ESTATE.]

The | P

 

Constitution of.

3. By settlement, executed on the marriage
of A. with B., A. granted lands, of which he
was seized in guas? fee, to trustees, to the use of
himself for life, remainder to the use of the trus-
tees for a term of 99 years, if B. should so long
live, upon trust to pay B., out of the rents and
profits, an annual jointure of £400, and as to
the surplus rents upon trusts for the issue of
the marriage. The settlement provided that
if the rents and profits should at any time,
during the term of 99 years, be insufficient to
ay B.’s jointure of £400, it should be lawful
for the trustees, by the direction in writing of
B., to raise the deficiency, by mortgage or
demise for any term of years. There was no
issue. B. survived A., and, by will, after re-
citing that arrears of jointure were due to her,
bequeathed them to C. B. had not, in her life,
given her trustees any directions in writing to
raise the arrears by mortgage or demise. Her
executors filed a petition in the L. E. Court
to sell the fee. Held, that B.’s will did not
amount to a direction in writing to her trus-
tees, within the meaning of the proviso; that
they had no power to create a term to pay the
arrears; and that there was no estate in the
land which the Court could sell to raise the
arrears.—In re St. George’s Estute, 14 I. C. R.
447; 81. Jur. N.S. 277. (C.A.)

4. By a decree to account made by the
Court of Equity Exch. in 1786, ina suit in which
the inheritance was represented by the first
tenant in tail, a sum was declared to be a
charge on lands. The tenant in tail after-
wards died without issue. The next tenant
in tail in remainder was made » party by a
bill of revivor; and there was a report of the
sum due, and a final decree for a sale in 1793.
In a suit to raise the charge by sale of the
lands—Held, that the decree to account
gave a good title to a charge on the lands,
though there was error in the subsequent pro-
ceedings, the suit being continued by bill of
revivor only.— Bolton v. Fairtlough, 15 I. C. R.
229. (R.)

5. M. bequeathed real estate in trust by and
out of the annual rents, issues, and profits, to
pay off and satisfy the several incumbrances
which should, at the time of his death, remain
really and truly affecting, or liens upon the
same or any part thereof; and also all such of
his proper debts, by himself contracted, and
of his legacies, as his personal estate, there-
after for that purpose bequeathed, should or
might be insufficient to satisfy ; after payment
and satisfaction of all such incumbrances,
debts, and legacies, to the use of his second
son, B., for life, without impeachment of
waste; remainder to his first and other sons in
tail; remainder to his eldest son, A., for
life ; remainder to his first and other sons
in tail; remainder to his daughters, as tenants
in common, in fee. M. directed that B.
should receive £200 a-year out of the rents for
his support, to be increased on his attaining the
ages of sixteen and eighteen to £300 and £400,
and directed his debts and younger children’s
fortunes to be paid out of his personal estate ;
and if it should prove insufficient, that the
Charge on

residue should be paid out of the savings of
the estates devised to B., and not by sale or
mortgage thereof. A leasing power was given
to A. and B., when actually seized. Portions
for M.’s daughters were charged on the estates,
and the debts were directed to be paid by the
personal estate, the surplus of which was to be
laid out in the purchase of real estate, which
was to be settled in strict settlement on A. for
life, to whom M. devised the residue of his
property. B. was a minor at M.’s death, was
made a ward of Court, and received, under
orders of the Lord Chancellor, sums exceed-
ing the allowance directed to be paid to him
during his minority. Held, that the incum-
brances were charged on the annual rents of
the estate devised to B., and not on the in-
heritance. That, in a suit by the representa-
tive of B., to be recouped out of the personal
estates for payment of the incumbrances, the
inheritor, who was a party, and made asimilar
claim, could not have credit for the sums
overpaid to B., by way of maintenance, against
the petitioner.

Decrees of the Court, though erroneous, are
binding, until set aside on rehearing, or ina
suit for the purpose.— Clanmorris v. Clanmorris,
141. C. R. 420. (R.)

1. S., owing £15,000, and having covenanted
to secure it on land, agreed to purchase lands
from E., and to give, as part of the considera-
tion, a mortgage of these lands, “subject, how-
ever, to a prior mortgage for £15,000. Held,
that these words did not charge the £15,000
upon the purchased lands.—yre v. Sadleir,
151.C. R.18. (C.A.)

VIII. 2. b. 2. Charge on Real Estate, to pay
debts.

2. V., by will dealing exclusively with realty,
after devising it amongst his family, concluded
by “desiring that all his just debts should be
paid as soon as convenient after his death.”
Held, that the debts were charged upon V.’s
realty.—Harding v. Grady, 4 I. E. R. 871; 1
Dr. & War. 430. (C.)

8. V., by will directed that his funeral ex-
penses and simple contract debts be imme-
diately paid, in the first instance, out of his
personal estate if the same should be suffi-
cient, and if not, out of the sale of lands and
houses at C. He then devised all his real
estates (except a part specifically bequeath-
ed), and all his personal estate and chattel
property, in trust, in the first place to pay out
of his personal estate, in six months at the
furthest after his decease, all his debts, fu-
neral expenses, and legacies thereby be-
queathed; and upon further trust to raise out
of the lands of D. £2000, and to pay the
interest of it to his daughter F. for life, with
limitations over; and in the event of their
not taking effect, the £2000 was to sink and
become part of the residue of his personal
estate. He devised his real estates, in strict
settlement, giving a life estate in them to F.,
and after reciting that on the marriage of his

. [REAL ESTATE.]

 

 

To pay Debts. 299

daughter E., he perfected to trustees two
bonds for £2000 and £4000, and declaring his
intention that the £2000 bequeathed to F¥.,
and the £6000 due to the trustees of E.,
should be paid out of D.; he directed that
they should be sold, and the produce applied
in payment of these sums; and if D. should
not be sufficient to pay the sums, “ making in
the whole” £8000, he directed the deficiency
to be paid out of the profits of his lands of
B., or by sale or mortgage of a competent
part thereof; and empowered his trustee to
sell them. He bequeathed the residue of his
personal estate to the trustees upon trusts, and
in order to save him trouble, directed that F.
should callin all the debts due to him and dis-
pose of all his personal estate, and thereout, in
the first place pay his debts and legacies; and
after payment thereof, pay over the residue to
the trustee whom he named executor. Held,
thatthe personal estate was exonerated from
the bond debts of £2000 and £4000, the same
being charged on the lands of B. and C.

The Court is bound to look at the whole
will, in order to collect an intention to ex-
onerate the personal estate. Where there is
a general direction to pay all debts and lega-
cies, and a clear intention to throw particular
debts or legacies on the real estate, the Court
is bound to effectuate that intention, and to
exonerate the rest of the property.

An error in report of Hancox v. Abbey
(11 Ves. 179) corrected.—Bateman v. Lord
pet 71. iE. R. 240; 1 Jon. & L. 356.

4. A., having five estates, devised four of
them to four of his sons, charging them with
nine-tenths of his debts and children’s por-
tions in certain proportions. He devised the
fifth estate (X.) to another son, subject to
one-tenth of the portions, but not directing it
to contribute to his debts. After disposing
of specific portions of his personal estate, he
directed that the rest of it should be applied
in payment of his just debts, and that such
further sum as might be requisite to pay his
debts should be raised out of his landed pro-
perty in the proportions above mentioned. ‘The
personal estate being insufficient to pay the
debts, it was Held, that estate X. was charged
by implication with one-tenth of the defi-
ciency.—Purcell v. Blennerhassett, 9 I. E. R.
103; 3 Jon. & L. 24. (C.)—[See s. c. 10
I. E.R. 470. (C.) ;

5. When a testator, in the introductory part
of his will, directs that all his just debts shall
be paid, and then devises his lands, subject to
that payment, to trustees to convey, &c., a
trust is created by the will for the payment of
debts, the lands being vested in the trustees
to raise their amount by the execution of a
trust; and: the right of a judgment creditor
is not affected by the 3&4 W.4.,c. 27, s. 40;
or if it be, it is taken out of that sec. by the
saving of the 25th sec.

Aliter—Of a mere charge upon lands, in
the hands of the owner beneficially entitled,
creating a liability but not a trust—AHunt v.
Bateman, 10 1. E. R. 360. (E.E.)
300 Charge on

1. A father, B., upon the marriage of his
son, C., by settlement conveyed a freehold and
chattel real (which latter was recited to be
subject to a mortgage) to trustees to hold,
subject to the charges and incumbrances
affecting them and specified in the schedule
annexed, for a term of 500 years; and, sub-
ject to that term and the aforesaid charges
and incumbrances, upon other trusts. One of
the trusts of the term was to raise £7000 after
B.’s death, for the sole use of him and his
personal representatives, and to be disposed
of as he should direct. There followed a
proviso that the £7000 should in the first in-
stance be subject to the payment of all his
debts then affecting the premises, and to his co-
venants therein contained for payment (inter
alia) of the incumbrances affecting the pre-
mises; it being the true intent of the settle-
ment that the residue of £7000 left after
those payments should be disposable by B.

B. also covenanted that the premises were
free from incumbrances other than and except
such charges and incumbrances as at the time
of or immediately before the execution of the
settlement affected the premises, and were
liens thereon and specified in the schedule. In
the schedule both judgment debts and simple
contract debts were specified. In 1825 the
mortgagee, A., of the chattel real having ad-
vanced a further sum to B. and C., part of
which was applied in payment of three of the
judgment debts specified in the schedule, B.
and C. re-mortgaged the chattel real, and
mortgaged the freehold to him for the aggre-
gate debt; and for better securing it, B., re-
citing his power under the settlement, directed
that the trustees of the term should, after his
decease raise £7000, and apply it in payment
of whatever might then remain due on foot of
the aggregate mortgage debt. The judgments
paid off were also assigned as a collateral se-
curity tothe mortgagee. In a foreclosure suit
by A., Held, that so much only of the last ad-
vance by A. as was applied in payment of the
three judgment debts ranked equally in point
of priority with the other judgment and simple
contract debts specified in the schedule; that
all these judgment and simple contract debts
were well charged by the settlement upon the
term, and the £7000 to be levied thereout ;
and that the remaining portion of that ad-
vance ranked subsequently to all these debts.

That the mortgage of 1825 did not operate
as a revocation of the settlement in respect of
the schedule debts.

Whether independently of the term and of
the £7000, the schedule debts were well
charged upon the freehold and chattel real,
the subjects of the settlement? Quere—
Greene v. Stoney, 131. E.R. 301. (C.)

2. In 1810, two judgments on a joint and
several bond, against D. and B., to secure
£2200, and in. 1812 another judgment to se-
cure £1000 against D., were entered up by X.,
as trustee for the M. Infirmary. In 1819, a
joint and several bond to secure £3200, the
sum for which the judgments were obtained,
was executed by D. and B. to X., who gave
warrants to satisfy the judgments. In 1823,

[REAL ESTATE.]

 

To pay Debts.

two deeds were executed by D. and B., by the
first of which they conveyed lands to trustees
to sell with their consent, or the consent of
the survivor, and to stand possessed of the
purchase-money, on trusts declared by the
second deed, viz., to apply the sum of £8275
as B and D. should appoint; and in default
of appointment, to pay the sum of £3200 due
to X., the trustee of the M. Infirmary (who
was a party to the deed in another character),
on a judgment against the said D., and B., his
executors, Gc. No sale was had. In 1826 D.
died. In 1827, X., the trustee for the M. In-
firmary, died without entering judgment on
the bond of 1819, and before the judgments of
1810 and 1812 were satisfied. In 1832, B. and
the trustees of the deed of 1821 mortgaged to
the plaintiffs, who had notice of the deed of
1823, but not of the bond of 1819, and who,
without inquiring whether the £3200 had been
paid to the M. Infirmary, merely required the
judgments of 1810 and 1812, which they sup-
posed to be the judgments referred to by the
deed of 1823, to be satisfied. Judgment was en-
tered on the bond of 1819 in 1838, and assigned
to A., in trust for the M. Infirmary, who, in a
foreclosure suit filed by the plaintiffs, proved
the judgment, and was by the final decree de-
creed to be paid in the priority of 1838. Y.,
the executor of X., who was not a party to the
suit, after the decree obtained an order allow-
ing him to prove his claim under the deed of
1823, on the usual terms of making up a re-
port at his own expense. Held, on objections
to the report under that order, that a trust
was created by the deed of 1823 in favour
of X., under which the £3200 was charged on
the lands. ie

That the plaintiffs had notice that the £3200
was due to the M. Infirmary, under the deed
of 1823; and, having neglected to inquire
whether it had been paid, could not ward off
the claim by reason of the inaccuracy in the
description of the security under which it
arose.

That X., having executed the deed, though
not made a party thereto as trustee for the
M. Infirmary, might have enforced the trust
created for him.

That Y. not having been a party to the
suit, the order of 1854 was right in permitting
him to come in and prove his demand, al-
though it was in substance for the same debt
which had been decreed to A.—Gurney v.
Oranmore, 5 I. C. R. 486 (C.).—[Affg. 5 1. C.
R. 163. (R). Both affd., Montefiore v. Browne,
7H. L. Cas. 241.]

3. Quit rents and crown rents are charges
and incumbrances on lands. The lands of A.
were conveyed to a purchaser, with a cove-
nant for quiet enjoyment, free from quit rents
and crown rents. By a contemporaneous
deed, reciting that the lands were subject to
debts, charges, and incumbrances, in a sche-
dule specified, and might be charged with
others not then known, and that it had been
agreed that the purchaser should be indemni-
fied from the aforesaid, and all other debts,
charges, and incumbrances, that then did or
at any time thereafter might affect the lands;
Charge on

and from all suits, &c., on account of any other
debts, charges, or incumbrances whatever, the
lands of B. were conveyed in trust to pay the
rents to the vendor and his heirs until the
purchaser, or any person under him, should be
molested, disturbed, or damnified by reason of
the said judgments and incumbrances, or any
of them, or any judgment or incumbrance
affecting A., &c.; and, after such disturbance,
&e., in trust out of the rents, or by sale, de-
mise, or mortgage, to raise such sums as might
be sufficient to pay the said and all other in-
cumbrances affecting A., and to pay the pur-
chaser all sums that he might have. paid on
account of the said or any such debts or incum-
brances; and as soon as the trusts should be
satisfied, and the said and all other incum-
brances affecting, or that might affect A.,
should be fully discharged, in trust for the
vendor and his heirs. Held, that the sums
paid by the purchaser, on account of quit and
crown rents, were, under the indemnity. deed
alone, a charge on B.

That the two deeds should be read to-
gether as being parts of the same transaction,
and that, on the construction of both, the sums
so paid were a charge on B.—Massy v. O'Dell,
9LC.R. 441; 31. Jur. N.S. 360. (R.)

VIII. 2. b. 3. Charge on Real Estate to pay
Legacies, Portions, §c.

1. In 1817, A. (not then a trader), upon his
marriage, covenanted that all his property,
real and personal, as well that in possession as
what he should thereafter acquire, should
stand and be charged and chargeable with
£3000 as a provision for his intended wife and
theirissue. Some months after his marriage A.
became a trader, and in 1835 was declared a
bankrupt. Ona billfiled by his wife and child-
ren—Held, that the covenant to charge after-
acquired property created a valid charge on
all A.’s freeholds purchased after his marriage ;
and should be specifically executed against
his assignees.—Lyster v. Burroughs, 1 Dr. &
Wal. 149. (C.)—[See Gubdins v. G., 1 Dr. &
Wal. 160, n.]

2. V. devised to A. realty charged with an-
nuities and legacies; and by codicil revoked
that devise, and devised them to B., and
“confirmed her will in every other respect.”
Held, that the lands were charged in B.’s
hands.— Young v. Hassard, 1 Dr. & War. 638.

(C.)

3. A. devised and bequeathed to H. all his
real and personal estate for her life, she pay-
ing thereout the legacies after mentioned, in
three years after his decease. He then gave
life annuities, and declared “ the said several
legacies or annuities to be charged on my real
estate, the first payment to be made three
years after my decease.” He then bequeathed
several pecuniary legacies, and gave all his
real and personal estate after the death of H.
to P. for life, with remainders over, if he
should die without issue. On demurrer—Held,

[REAL ESTATE.] To pay Legacies, $c.

 

301

that the legacies were charged on the inheri-
tance.—Boyd v. Higginson, 6 I. E. R. 97. (R.)

4. A defendant insisted by his answer that
a former tenant in tail had paid off legacies
(which the defendant alleged to be charges
upon the real estate) out of a specific fund;
and that these legacies still remained charges
on the real estate.

An interlocutory decree referred it to the
Master to take an account of the sums ad-
vanced on foot of the specified fund in
exoneration of the lands; and declared that
whatever advances should appear to have been
so made were acharge upon the lands. Held,
that this amounted to a declaration that the
legacies were a charge on the lands.—Kelly v.
Lennon, 1 Jon. & L. 305; 71. E. R. 98. (C)

5. A testator, B., gave his estates, real and
personal, in Ireland, after payment of all his
just debts, funeral and testamentary expenses,
on trusts, chiefly for the use of a cousin. He
gave all his real and personal property in
England to such uses as his widow should ap-
point, and in default of appointment to her
for life, with remainder to the same uses as
his freehold estates in Ireland; provided if
his personal estates in Ireland should be in-
sufficient for payment of his debts and legacies,
the same should be charged on his freehold
and leasehold estates in Ireland, and he ex-
onerated his real and personal estates in
England therefrom. B. died in England.
Held, that his funeral and testamentary ex-
penses in England were charged as well as
his Irish testamentary expenses on his Irish
estates, in exoneration of the English per-
sonalty.—Coote v. C., 9 I. E. R. 197; 3 Jon.
& L.175. (C.)

6. Estates were settled, after the death of
husband and wife, to trustees, for a term, and
subject thereto to the husband, A., in fee.
The trusts of the term were, if the wife died
in the life-time of A., leaving children, to raise
£8000 for the portions of such children, to be
divided between them in such shares as A.
should by deed or will appoint. By will, A.,
dying before the wife, devised part of the set-
tled land to his eldest son, in strict settlement,
with powers of jointuring, and charging por-
tions for his younger children; and other part
of the settled lands to his second son in the
same manner; and after reciting that he had
by his settlement a power of appointing £8000
among his children, he, in pursuance of the
power, and of every other power to him re-
served, appointed the £8000 amongst his
children; bequeathed to his daughter E.,
£1000, in addition to the sum already ap-
pointed to her; directed, that if all his
younger children died before their portions
became payable, the £8000 should sink into
the inheritance ; and that his personal estate
should be applied, pro tanto, in discharge of
the £8000, in exoneration of the real estate
charged therewith. A. died, leaving his wife
and several children him surviving. Held,
that the £8000 was well charged upon the real
302 Charge on
estate of A.— Mandeville v. Roe, 1 Jon. & L.
371; 71. E.R. 253. (C.)

1. A marriage settlement provided that a
deficiency in a jointure of £200 should be
charged on X. and Y.; and declared that un-
til the death of A. (tenant for life of Y.). this
should be borne exclusively out of X. and no
part out of Y.; but after A.’s death X. should
be released from all future payments of it, and
it should be borne out of Y. and not out of X.
It appearing from the entire settlement that
the intention was to secure the £200 jointure,
at all events, the deficiency was Held charged
on both X. and Y. at the same time; and
this declaration was confined so as only to
affect the arrangement between those estates.
Sullivan v. S., 71. E. R. 453; 1 Jon. & L. 678.
(C.)—[S8. ¢.8 I. E. R. 685; 2 Jon. & L. 769.

C.)]

2. A testator charged the estate of C. with
debts, devised the residue of his real estate
(which included C.), to his widow for life,
with remainders over; gave her all his personal
estate not thereinbefore bequeathed ; and at
the end of his will devised and bequeathed a

ecuniary legacy payable after her death.
Feld, that the legacy was not charged on the
real estate.— Smith v. Butler, 7 I. EH. R. 467; 1
Jon. & L. 692. (C.)—[S.c., on exceptions to
the report, 91. E. R. 398; 3 Jon. & L. 565.

(C.)]

3. A father, having power to appoint an
estate to the use of all and every his child and
children for any estates or interests, and in
any shares, and subject to any charges and
payments to one or more of them, devised the
estate in trust to apply the rents, until the
eldest son attained age, to the maintenance
and education of all the children, and further
thereout to pay the interest of his debts and so
much of the principal as the surplus would
reach; and charged the estate with £3000 for
the younger children; and if the eldest son
should, by business or marriage or otherwise,
be enabled to pay off the £3000, that the
trustees should convey the lands to him ; and
if the eldest son should not pay it, to the
second or third sons on the same conditions ;
and if none of the sons, should take or accept
the estate, that the trustees should sell it and
pay off the father’s debts, and divide the sur-
plus among all the children. Held, that the
will was a good equitable execution of the
power, the portion of it which exceeded the
power being separable, and the £3000 being a
charge and not a personal condition.— Richard-
son v. Simpson, 9 I. E. R. 367; 3 Jon. & L.
540. (C.)

4. Devise of a mansion house, with the
parks, lands, and grounds thereunto belong-
ing “as now used and occupied by myself,
and also all and every the household and
other furniture, &c., and all other things
usually therein, or considered as belonging
thereto ”"—Held, not to pass horses or car-
riages in the stables, or stock, &c., on the land.

V. devised his realty to trustees for years,
on trust for his wife for life, or durante vidui-

 

[REAL ESTATE.] To pay Legacies, &e.

tate; and, after her decease or second mar-
riage, and subject as aforesaid, and without
prejudice to the same, on trust to raise there-
out by sale, &c., for all or any part of the re-
sidue of the term, £3500, which V. bequeathed
to three persons. V. desired that the several
sums might be paid to the legatees respect-
ively ‘“‘as soon after his decease as might be
convenient,” and that in the meantime the
legatees should be paid interest at the rate of
£5 per cent. Held, that they were not en-
titled to interest out of the wife’s life estate,
but that it was, after her decease or marriage,
to be raised out of the residue of the term.—
Pennefather v. Bury, 9 I. E. R. 586; 3 Jon. &
L. 727. (C.)

5. A. devised lands to six persons, two of
whom were subsequently named executors,
and directed them “to see his will executed.”
On a deficiency of personal assets, a cause
petition was presented praying that these le-
gacies might be charged on the lands devised
to the executors. Held, that the legacies
were not charged upon these lands.—Knoz v.
Duffield, 3 I. Jur. 829. (C.)

6. A settlement contained a covenant to
charge some portion (not named) of the un-
settled lands, with part of a fund, if certain
contingencies happened. They happened.
Held, that as against subsequent judgment
creditors, the unsettled estates then vested in
the settlor were bound by the covenant.—In
re O’Dell’s Estate, 41. Jur. 21. (P.C.)

7. A. devised to his sons, to be disposed
of as after mentioned, all his estate in W.,
and to the survivor, &c., of his sons, and
all his estate in P., subject to his propor-
tion of the head rent, and also subject to and
in trust to pay out of the rents thereof an an-
nuity to his daughter, and the remainder of
the rents until she should be paid £500.
Then followed a bequest of an annuity of £40
charged on parts of W., and a residuary
devise to the three sons. Held, that the be-
quests to his daughter were charged only
on P., and not on any of W.—Borough v. Wil-
fiamson, 111. EB. R.1. (C.)

8. A. devised to his wife his lands. By a
separate clause he gave her chattels, and
added, “‘fourthly, I order my wife to pay the
following legacies,” which he enumerated. He
made her and another executors. Held, the
legacies were charged on the lands, and the
wife took the fee.

Neither the word “thereout” or “ paying”
is required to make the payment of a legacy a
condition so as to give the devisee the fee
in lands charged with it.—Johnson v. Brady,
111. E. R. 386. (C.)

9. Devise of B., subject to the testator’s,
A.’s, debts, upon trust out of the “rents” and
“issues,” to pay to his three nieces £1000 at
21 or marriage, whichever should first happen,
with interest from the period of his death ; and
if they all died before 21 or marriage, he gave
that sum to his nephew. A. next bequeathed
annuities, which he directed to be paid out
Charge on

of the “rents, issues and profits” of B., and
gave the annuitants power of distress and
entry. He next devised (“after payment
of the legacies and bequests aforesaid”) B..,
and all other his real and personal estate,
subject to payment of his debts, legacies, &c.,
to the same trustees, upon trust to pay £40
annually for the maintenance of his nephew
during minority, and directed the investment
during that time of the surplus “rents, issues,
proceeds and profits,” such surplus to be paid
over to him on his attaining 21; from which
time A. directed the trustees to permit his
nephew during his life to receive the “rents,
issues and profits” of B., and the other real
and personal estate ; with power to jointure,
and with remainder over in strict settlement to
his (the nephew’s) issue. At the date of the will
the nephew was nineteen years of age, and the
nieces were respectively sixteen, twelve and
ten years of age. A. left personalty to the
value of £800. Held, that the sum of £1000,
bequeathed to the nieces, might be raised by
sale’of B., and was not charged upon the an-
nual rents only.— Spring v. Stevenson, 1 I, C.
R. 182; 31. Jur. 97. (C.)

1, A. devised an estate pur autre vie in the
lands of B. and G., and a term for years in
the lands of S8., upon trust for his son for life,
remainder over, and also empowered that son
“to make a settlement for the use of any wife
he might marry, and to incumber the proper-
ties for that use, and to the use of any issue
lawfully begotten.” The donee of the power
exercised it on his marriage in 1805 in favour
of his first wife, and reserved a power to charge
a jointure for any future wife. The first wife
having died, he, on his second marriage in
1815, executed a settlement reciting his title
to the premises under the will, but without

_ allusion in that recital to the power contained
in the will, and also reciting the settlement of
1805, andthe reservation therein of a power to
grant a jointure to a future wife, and then
granting to trustees for the second wife a
jointure of £100 per annum, “ chargeable
upon the lands of B. and §.; and chargeable,
if they should be insufficient for payment
thereof, upon all and every other property
real or personal of which he was then or
should thereafter be possessed of, or which he
should die possessed of, in lieu of dower,” &c.
Held, that the power contained in the will
might be exercised in favour of the second
wife, notwithstanding the former exercise of
it in favour of the first wife.

That the settlement of 1815 was a valid
execution of the power in favour of the se-
cond wife, although that settlement contained
no reference to that power, and only alluded
to the reservation in the settlement of 1805.

That the lands of G., although not speci-
fied by name in the settlement of 1815, were
charged thereby with the jointure in favour of
the second wife.

That it was within the jurisdiction of this
Court to appoint a receiver over the lands
for the purpose of collecting the arrears of
that jointure.—Maultby v. M., 2 I. C. R. 32;
41. Jur. 333. (C.)

[REAL ESTATE.] To pay Legacies, sc,

 

303

2. An ante-nuptial settlement, executed in
1782, recited that H. was seized in fee of athe
lands of W. (the fact being that he was seized
in tail of part, and in fee of the remaining
part of those lands): that he was seized of an
estate for three lives, with a covenant for per-
petual renewal, in the lands of B.; and pos-
sessed of a term for years in the lands of R.
By that settlement W. was settled on H. for
life (subject to a term of 500 years, to provide
for younger children £1500 as portions, which
might be raised during the lifetime of H., with
his consent), with remainder to the first and
other sons of the marriage successively in tail
male. B. and R. were thereby settled upon H.
for life, and (subject to making good any de-
ficiency in the £1500 portions), with remainder
to the first son of the marriage, his heirs, exe-
cutors, &c. That settlement also contained a
power (afterwards exercised) for H. to charge
upon all the lands £2000, to be raised at any
time which he might appoint; and a proviso
enabling him to deprive any son, who might
misconduct himself, of any estate thereby
limited to him. No recovery of W. was suf-
fered to the uses of that settlement. In 1811
E., the eldest son of the marriage, being of
age, joined H. in a deed making a tenant to
the pracipe in a recovery about to be suffered
of W.., reciting that he was seized of an estate
for life, and E. of an estate in remainder in
tail male in W., and their intention to bar all
estates tail, remainders, &c., therein; and de-
claring that the recovery should enure for the
purpose of securing any sums which H. and E.
might jointly charge upon W., and to such
other uses as they might jointly appoint; in
default of appointment, to the uses of the set-
tlement of 1782. The deed of 1811 also con-
tained a proviso that in the event of E. dying .
in the lifetime of H., and without issue, W.
should stand charged with £2000 for the
younger children of H. A recovery was duly
suffered to the uses of that deed. Neither H.
nor E. ever exercised the powers conferred
upon them of jointly charging or appointing
W. Subsequently to 1811, judgments were
recovered against E., who died in 1819, in the
lifetime of H., and without issue. Held, that
the £1500 for portions created by the settle-
ment of 1782 were primarily charged upon W.,
and that the other lands constituted only an
auxiliary fund for the payment of those por-
tions,

That the younger children of H., in regard
to their charge of £2000 under the deed of
1811 upon W., were not, as against the judg-
ment creditors of E., entitled to have, upon
the principle of marshalling, the charge of
£2000, created by the settlement of 1782,
thrown altogether upon R., but that all the
lands should bear that charge pro rata.—[Har-
greave, C., dissentiente.]

That, inasmuch as the power for H. to
charge £2000 under the settlement of 1782
overrode all the other powers and provisions
in it, the £1500 portions should not be de-
ducted from the value of W. in ascertaining
the proportion of the £2000 charge of 1782,
which those lands were to bear, but that pro-
portion should be calculated upon the full
304 Charge on

value of W.—In re Jones’s Estate, 2 I. C. R.
544. (LE.C.)

1. D. bequeathed as follows :—“I leave to

A. all that and those the lands, &c., Siig Me
T also leave A. all my furniture, stock, .. . .
I also leave A. all and every sum of money left
me by ..., alsothe landsof ... . Jalso
leave him all moneys and debts of every kind
due to me at my decease, to be subject to all
my debts, and the several bequests and legacies
hereinafter mentioned, that is to say, I leave
and bequeath to my sons F. and T. the several
sums of £100 each.” D. then framed several
other pecuniary legacies, without stating fur-
ther any fund out of which they were to be
paid. Held, that the words “ to be subject to”
extended to all the preceding clauses; and
that the pecuniary legacies were charged on
all the real and personal estate.—Millet v. M.,
61. Jur. 149. (R.)

2. A petitioner claimed a legacy by her
petition and charge; and claimed priority for
it over the other legacies, by reason of a con-
tract with the testatrix that the legacy should
be bequeathed to her in consideration of her
services as companion. The alleged contract
was denied by the discharge, and no evidence
was given to prove it. Held, that having
claimed as legatee, by her petition and charge,
she could not, on an appeal from the Master’s
decree, abandon the legacy and claim as credi-
tor. That she could not claim as a creditor,
having given no evidence in support of her
claim as such.

X. first devised real estate to A., subject to
specified legacies, which she charged thereon,
and exonerated her personalestate from them.
She devised other real estate to B., subject to
other legacies which she also charged thereon,
and from which her personal estate was also
exonerated. Thirdly, she devised other estates
to C., subject to other legacies. Fourthly, she
devised other real estate to D., in trust to sell
and pay two legacies and the residueof the pur-
chase-money to E. Fifthly, she devised other
lands to F.,subject to alegacy; and bequeathed
stock to G., and her household goods, plate,
cash, and other personal property to H. She
bequeathed the residue of her property, real,
freehold and personal, after payment of her
just debts, funeral expenses, &c., and legacies
aforesaid, to A., whom she appointed her sole
residuary legatee; and if such residue should
prove insufficient for the purposes aforesaid,
ordered that such deficiency should be paid
out of the produce of the sale of the lands
devised to D.; and appointed A. and F. her
executors. X.had no other lands but those
specifically devised. Afterwards, bya codicil
duly attested and made in England, her will
being then in Dublin, she bequeathed the
legacy to the petitioner, and charged it on her
real and personalestate; and ratified and con-
firmed her will in all other respects. Held,
that the petitioner’s legacy was not charged
on the lands specifically devised to A., B., C.,
and F.

That if there had been any lands not speci-
fically devised, which passed under the resi-

 

[REAL ESTATE.] To pay Legacies, &e.

duary devise, they would have been charged
with the petitioner’s legacy. That the residue
of the purchase-money of the lands devised to
D., in trust for E. after payment of the two
legacies, was subject to the petitioner’s legacy,
as E., was to be considered a residuary and not
a specific devisee.—Dyer v. Bessonett, 4 I. C. R.
382. (R.)

3. A., tenant for life, without a leasing
power, had made a lease in 1832 to F. for three
lives or 31 years. G., the sister of F., and
petitioner in the suit, being one of the c. g.
vies. F. left the country in 1834, and had not
since been heard of up to the commencement
of this suit. G. entered into possession of the
premises. The rent having fallen into arrear,
an ejectment was brought by A. Subsequently
an arrangement was entered into between A.
and G. that G. should pay the arrears and give
up possession ; and should receive an annuity
for life to the amount of the profit rent in the
premises. ‘There was no written agreement
produced, except letters from A., and B., his
son, to G., relative to the payment of the
annuity. Upon the death of A., B. took pos-
session as his heir-at-law, being also his per-
sonal representative; and having refused to
continue payment of the annuity, upon the
ground that A. had no power to create such
a charge beyond his own life, G. filed a peti-
tion praying an order that B. should pay what
was due on account of the annuity; a decree
that the annuity was an equitable charge upon
the lands; the appointment of a receiver;
and that the annuity should be payable out of
the assets of A. Held, that G. was entitled
to a personal annuity for her life, and that the
assets of A. were liable thereto.

That the real estate was not liable to the
charge.

That the petition was not bad for multifa-
riousness or misjoinder.—Gibbon v. Cloncurry,
71. Jur.171. (C.)

4. C. had power to charge the lands of X.
with £100, and after certain limitations, the
reversion was limited to him in fee. C.’s will,
after referring to the power, proceeded—“ I
charge the said lands, and direct my executors
do raise out of the lands, and which sum of
£1000 I give and direct that the same may be
paid to my daughter HE.” C. devised the re-
version of X. to F., and gave the residue of
his real and personal property to E. E. died
in. C.’s lifetime. Held, that the power was
well executed, and that the charge must be
raised for the benefit of C.’s next-of-kin.—
Fosberry v. Smith, 51. C. R. 321. (C.)

5. A., entitled to estates in Scotland and in
Ireland, by a marriage contract executed in
Scotland, and in the Scotch form, settled his
estates to himself and the heirs male of his
body, to be begotten on the body of his in-
tended wife, and bound himself to execute all,
dispositions and conveyances in the Scotch
and Irish forms for rendering the destination
of the estates more complete. It was pro-
vided that A. should have power to impose
conditions and limitations on the heirs male,
Charge on

and to vary the course of succession, so far as
to prefer one heir male to another; and if the
lands should descend to one child of the mar-
riage, and there should be other children
whom he should have neglected to provide
for, A. bound himself and the heirs of the
marriage to pay to each of such younger
children £600 as a portion. Another clause
provided, notwithstanding the said provision,
the settlor might augment, diminish, or make
void the provision of £600, it being provided
solely with a view to remedy A.’s neglect in
not providing for the children other than the
heir; and it was declared that the said pro-
vision should be a burden upon the heir of
the marriage. By a subsequent instrument,
not under seal, reciting the said provision,
and that A. considered it inadequate, and
had resolved to add thereto, A. bound him-
self, his heirs and successors, to pay to the
younger children £2000 each; and declared
that sum to be inclusive of and in satisfaction
of the provision in the marriage contract.
He also provided a further annuity for his
daughters, in an event which happened, and
declared these provisions to be in full satis-
faction of all their claims under the marriage
contract or otherwise.

Semble—The marriage contract should be
construed according to the law of Ireland, as
to the Irish estates, and the portions of £600
were a charge on those estates, although by
the Scotch law they were not a charge on the
Scotch estates. Held, that the portions of
£2000 provided by the second instrument
were in substitution of the portions of £600,
provided by the marriage contract, and were
not charges on the Irish estates.

Contracts relating to real estate are to
be governed by lex loci rei site. Contracts
relating to personal estate by lex loci contractus
et domicilii—Dalzell v. D., 5 I. C. R. 463. (R.)
—[On Appeal, 61. C. R. 483. (C.)]

1. A settlement of 1810 gave A., the in-
tended husband, power to appoint to all and
every, or any one ormore of the children, grand-
children, or other issue of the marriage, in
such manner and form, and if more than one,
in such parts, shares, and proportions, and for
such estate and estates, time or times, and for
such interests, and with such limitations over,
or substitutions or. charges in favour of any
one or more of the said children, grand-
children and issue respectively, and either by
way of legacy, portion, present interest, re-
mainder or otherwise, as he should by deed or
will direct; it being the true intent of the
parties that A. might either divide the pre-
mises in such portions as he should think fit
amongst his children, or appoint the entire to
one or more child or children, and charge the
said premises by way of pecuniary provision
for the other children of the marriage. Power
was alsogiven to A. to charge £200 for his own
benefit, and a jointure and portions for a
second wife and children of a second marriage.

By a settlement executed in 1844 by A., and
B., his eldest son, on B.’s marriage—reciting
the power of appointment in the settlement of
1810, and the powers to A. to charge, and that

[REAL ESTATE.]

 

To pay Legacies. 305

A. had agreed to release the latter powers, and
that the lands in which A. had « life estate
were subject to various debts, charges and in-
cumbrances stated in a schedule, and that A.
had made no appointment of the lands—A.
appointed the lands after his own death, but
subject to the debts, charges and incumbran-
ces thereinbefore mentioned, and then affect-
ing the said lands, and released his power of
charging the lands with a jointure and por-
tions. A present annuity of £200 a-year, and
a jointure of £300 for his intended wife were
provided and secured by a term of 100 years.
A term of 200 years puisne to the term of
100 years was created, to raise £4000, portions
for the younger children of A. The schedule
to the deed comprised the £4000 portions, and
a sum of £530, a bond debt of both father and
son.

Semble, the power would have authorised an
exclusive appointment, but—

Held, that the deed of 1844 operated as an
appointment of the estate, subject to a charge
of £4000, which took priority of the jointure to
B.’s wife.

That a charge of the bond debt was created
by the recital, and the appointment subject to
it, and also had priority over the jointure.

That independently of the power, the £4000
was a charge in priority to the jointure under
the deed of 1844.—In re Nash, 5 1. C. R. 384.
(P.C.)

2. When a bequest of several legacies is fol-
lowed by a gift of the residue of the testator’s
real and personal estate, that is sufficient to
charge the legacies on the realestate. B.,
possessed of real and personal estate, by will,
dated 1825, after bequeathing an annuity to
his wife, further bequeathed to her £1000“ in
trust to give such part of said sum as she may
consider my estates and assets may justify, to
my daughter A. on her marriage, with her con-
sent; the entire of the remainder of said sum
to go and be considered as part of the residue
of my property, as hereinafter bequeathed to
my son, M.” He then bequeathed £5000
to A.; and directed that if she died before
marriage “this bequest should be considered
as part of the residue of his property, and
should go with and merge in same.” "After
some small pecuniary bequests—“ As to all
the rest, residue and remainder of my pro-
perty, I may die possessed of, or entitled to,
of what nature soever, whether estates, free-
hold leases, &c., &c., I hereby bequeath,
devise and grant the same to my son, M., with
liberty to him to dispose of the same in any
way he may think proper.” Held, that the
legacies bequeathed to A. were well charged
on the real estates, and entitled to priority
over a subsequent mortgage by M.—Jn re
Browne, 6 I. C. R. 240; 2 I. Jur. N.S. 329.
(LE.C.)—[Affd. 6 1.C. R. 890; 31. Jur. N.S.
49. (C.A.)—Affd. 7 H. Lds. Cas. 689.]

3. A., possessed of the lands of B. for a
term of 31 years, renewable for ever, executed
his marriage settlement, whereby, after re-
citing an agreement that the intended wife, if

39
306 Paying off
she survived A. should have, during her life,
an annuity of £400, “issuing out of and charged
and chargeable upon the lands of B.,” they
were assigned upon trust, after the decease of
A., “out of the yearly rents, issues and profits,
to pay unto the wife, during her life, a yearly
sum of £400 ;” and, after her decease, in trust
to assign the lands to A., if living, or, if he
should be dead, then to his executors, &c. The
settlement contained covenants by A. for quiet
enjoyment and further assurance. Held, that
the annuity was such a charge as entitled the
jointress to have the lands sold for payment of
the arrears.—Jn re Tyndall, 71. C. R. 12; 21.
Jur. N. 8. 429. (LE.C.)—[Affd. 71. C. R. 181;
21. Jur. N.S. 483. (C.A.)]

1. A. devised lands on trust for B. (a minor)
and his sons, in strict settlement, giving B. a
power of charging the lands with £5000 for
younger children, “to be raised by sale or
mortgage of a competent part of the said lands,
or out of the rents and profits.” A. then be-
queathed legacies, amounting in all to £12,000,
to his grand-daughters, and directed that his
executors “ should place these legacies in some
of the most eligible public funds,” and accumu-
late such portion of the annual interest of
them as was not required for the maintenance,
&e., of the legatees. A. then, after giving
some small legacies declared that if his assets,
not thereby specifically disposed of, should
prove insufficient to pay his debts and legacies,
“it was his will that such deficiency should be
made good, and supplied by his trustees out
of the annual rents and profits arising out of
his estates, which he thereby desired that his
trustees might receive and apply until such
deficiency should be made good thereby, allow-
ing, however, to B. so much as the trustees
should deem expedient and fitting for his
education and maintenance; “but if it should
happen that there should be a surplus of his
personal estate, after payment of his debts
and legacies, &c.,” A. bequeathed such surplus
among his several grandchildren above men-
tioned. The personal estate proved insufii-
cient. On A.’s death, B. and the other grand-
children were made wards of Court. One of
the executors acted as guardian. In the ac-
counts and dealings in the matter of the
minors, the legacies were treated as charged
on the corpus of the estate, and B. paid in-
terest on them until he died, leaving a son,
who refused to pay these charges. Held,
that only so much of the legacies as the per-
sonalty was inadequate to pay was at all
charged on the real estate; that the charge
was only on so much of the rents and profits
of the real estate in the years immediately
following A.’s death as would have made up
the deficiency; and that B.’s son was not
bound by the dealings in the minor matter.

It is desirable that questions of construc-
tion should be settled, in the first instance,
before the Master proceeds to take the ac-
counts of an estate.—Scott v. Clements, 8
I. C. R. 1.; Dr. Rep. temp. Napier, 91. (C.)

2. T. devised lands to F., his eldest son, for
life, remainder to F.’s first and other sons in

[REAL ESTATE.]

 

Charges on.

tail male, remainders over, with a power to
F. to appoint a jointure to any wife he
should marry, together with any sum not ex-
ceeding £3000 for the younger children of
such marriage, provided such marriage should
be with the assent of the guardian and exe-
cutors of the will, or the survivor of them.
E., T.’s wife, and two other persons were
named executors. HE. alone was named as
guardian of his children. E. alone proved the
will, the other two executors subsequently dis-
claiming. F.,in the year 1843, while a minor,
was married to 8. by a person in holy orders,
but without license or publication of banns,
and without the consent of E, E. subsequently
consented to the celebration of a formal mar-
riage between F.and8. Held, that the power
of charging could not be exercised in favour of
the younger children of F. and §., inasmuch
as the irregular marriage not having been
avoided by suit, under the 9 G. 2, c. 11, was
valid ab initio, and the subsequent regular
marriage therefore inoperative-—Adams v. A.,
8 I. C. R. 41; Dr. Rep. temp. Napier, 247.
©.)

VIII. 2. c. Paying off charges; to whom pay-
able, and what fund liable to pay.

3. When the personal estate of an infant,
seized in fee of a real estate, was applied in
payment of charges affecting the real estate,
the infant having died under 21—Held, that
the next-of-kin were entitled to those charges.
—Dowling v. Belton, Flan. & K. 462. (R.)

4. A mortgagee of lands, held under leases
for lives renewable for ever, became bank-
rupt. The head landlord brought ejectment
for non-payment of rent. The assignees re-
deemed the premises within the time al-
lowed by statute to mortgagees; and entered
into possession by their agent. An annu-
itant, claiming under a settlement prior to
the mortgage, filed a bill. Held, that the*
assignees were chargeable as mortgagees in
possession, and must appropriate the rents,
&c., which they had, or without wilful default
might have received, in discharging the re-
demption money before paying their own
mortgage.—Sloane v. Mahon, 1 Dr. & Wal.
189. (C.)

5. A. demised freehold lands, held by a
lease for lives renewable, to C. and G., and di-
rected in what proportions they should pay the
head rent. C. suffered a judgment to be en-
tered against him, and allowed an arrear of
head rent and renewal fines to acerue in re-
spect of his share; and then by a voluntary
deed conveyed his share to G., who paid off
the arrears of rent and fines, and entered into
possession of C.’s share. Ona bill filed by the
judgment creditor—Held, that G. was not en-
titled to repudiate the conveyance as an abso-
lute sale to him, and to claim as an incum-
brancer against the estate the amount of the
fines and rents so paid by him; but that he
was a purchaser thereof; and a sale was de-
Paying off

creed against him.— Barber v. Roe, Long. & T.
655; 41. E.R. 692. (E.E.)

1. By settlement of 1812, lands were limited
to P. for life; remainder to T. for life; re-
mainder to children of T. as he should ap-
point; in default of appointment, equally.
The lands were subject to a rentcharge in
fee, vested in H., the daughter of P., which
was to commence on his decease. On the
marriage of H. with W., P. charged his life
estate with an annuity of £50. It, together
with the perpetual rentcharge, were settled
to the uses of W. and H., and their issue. P.
and T. subsequently granted to D. a rent-
charge issuing out of the lands, for the term
of 20 years; and demised the lands to a trustee
for a like term, to secure its payment. P.
died. After his decease W. filed a bill against
T., his wife, and their children (minors), for
an account of the sums due to him on foot of
the annuities, and for a receiver; and ob-
tained a decree, that the arrears of the an-
nuity of £50 were a charge on the lands. D.
also filed a bill against the proper parties for
an account of the sum due to him on foot of
his annuity, and for asale of the term. A
decree having been pronounced in that suit
to take an account of prior incumbrances, W.
proved under it his demand in his own cause.
In 1829, a decree was pronounced in D.’s cause
for a sale of the inheritance, and for payment
thereout of the sum due to W. on foot of the an-
nuity of £50; and a day to show cause was given
to the minors. W. purchased the lands sold
under that decree. Upon a bill of review by
the children of P., charging that the decree of
1829 was erroneous, and that it, and the sale
thereunder, had been concerted by fraud,
which was not proved—Held, that the decree
was erroneous, as it directed the inheritance
to besold for payment of a sum which only af-
fected the life estate of P.; and the sale was de-
clared to be a sale of the life estate of P. only.

Costs of a bill of review and reversal given
to the plaintiff, who succeeded in the suit.

The plaintiff in the original suit is a proper
party to the bill of review, although no relief
is prayed against him.

The trustee of the term was improperly made
a party, the term having expired before the in-
stitution of the suit.

If a plaintiff, or a person standing in the
situation of a plaintiff, purchases under the
decree, the transaction is to be examined with
the utmost strictness; and if the decree be re-
versed for error, the sale cannot be upheld.—
Talbott v. Minnett, 6 I. E. R. 83. (E.E.)

2. A person, found a lunatic, was seized in
fee of an estate subject to acharge. Pending
the lunacy the owner of the charge applied
for payment. The Court referred it to the
Master to inquire and report whether it would
be for the benefit of the lunatic to pay off the
charge; and if so, out of what fund it should
be paid. The Master reported that it would
be for the benefit of the lunatic to pay off the
charge, out of a fund in Court, the produce of
the savings of the estate which was subject
to the charge. The Court ordered that the

[REAL ESTATE]

 

Charges on. 307

charge should be paid off out of that fund, and
that it should be assigned to a trustee either
to attend the inheritance, or for the lunatic,
his executors, &c., as the Court should after-
wards decide, either in the lunacy or upon a
bill filed. The charge was paid off and as-
signed to a trustee, in conformity with the
order of the Court. The lunatic subsequently
died intestate, without issue, and without hav-
ing recovered his senses. Held, upon a bill
filed by his personal representative, that the
heir-at-law of the lunatic was entitled to hold
the estate freed from the charge, and that
the next-of-kin were not entitled to the be-
nefit of the charge.—Lord Leitrim v. Enery, 6
I. E. R. 357. (C.)

3. Semble—A tenant for life, buying up an
incumbrance affecting the inheritance, is not
entitled to have credit against such inherit-
ance for any amount greater than that which
he actually paid.— Aull v. Browne, 6 I. E. BR.
403; Dr. Rep. temp. Sugden, 426. (C.)

4, An estate was assigned, in 1786, on trust
by sale or mortgage to raise £500 for child-
ren’s portions, and subject thereto in trust for
the settlor. In 1792 the settlor, by a convey-
ance expressly referring to the settlement,
conveyed to A., who paid to him the purchase
money, except £500, for which he confessed a
judgment to the trustees, which was not to be
called in till the trusts of the settlement were
fulfilled. In 1805 A., on his daughter’s mar-
riage, secured a jointure on the lands. He
died, having devised the lands on trust to pay
his debts, and subject thereto to a devisee,
who became insolvent, and acknowledged the
£500 as a debt in his schedule. In 1812 the
trustee of the settlement assigned the judg-
ment to X., who had become entitled to the
£500 under the settlement. In 1845 A.’s
daughter relied on the Statute of Limitations
in bar of the £500 as against her jointure.
Held, that it continued secured by an express
trust, and was not barred.—Blair v. Nugent, 9
I. E. R. 400. (C.)

5. In 1809, two estates were settled to such
uses as A. should appoint; in default of
appointment, to A. in fee. Several judg-
ments were recovered against A. between
1809 and 1829. In 1829, A., in exercise of
his power, conveyed one of the estates to a
purchaser in fee, and the other to » trustee
for 500 years, to indemnify the purchaser
against such debts affecting the estates sold
as he should pay off, with remainder to him-
self in fee. The purchaser paid off the judg-
ments which were assigned by a deed, to
which A. was a party, and covenanted that
the sums paid in discharge of them should be
within the trusts of the 500 years’ term.
Held, that these sums were not, as against
other creditors, charged on the 500 years’
term, inasmuch as, being defeated by the
exercise of A.’s power, they did not affect the
lands conveyed to the purchaser.— Hickson v.
Collis, 61. E. R. 524; 1 Jon. & L. 94. (C.)—
[Reversed on re-hearing; 101. E. R. 447. (C.)

6. Testator directed that his simple con-
308 Paying off
tract debts should be immediately paid; in
the first instance, out of his personal estate,
and if that were not sufficient, out of the pro-
duce of the sale of the lands of C. He then
gave all his real and personal estate, includ-
ing ©., upon trust to pay out of his personal
estate, in six months after his decease, all his
debts and legacies, and to raise out of the
lands of C. £2000, to be invested upon cer-
tain trusts, for his daughter, B., and her issue ;
and upon failure of the trusts to sink into and
become part of the residue of his personal estate.
And after reciting that on the marriage of his
daughter H., he had perfected two bonds to the
trustees of her settlement, for the sums of
£4000 and £2000, payable the day aftér his
death, and that it was his intention that the
£2000 bequeathed to the use of B. and her
issue, and the £6000 so due to the trustees of
H.’s settlement, should be paid out of the lands
of C., he directed same to be sold, and the pro-
duce to be applied in payment thereof; and
if C. should not produce a sum sufficient to
pay off “said respective sums of £2000,
£4000, and £2000, making in the whole
£8000,” he directed the deficiency to be
raised by sale or mortgage of his C. estates.
He bequeathed all the residue of his personal
estate, after payment of his debts, in trust for
B. for life, and then upon the trusts before
declared as to the £2000. Held, that the
bond debts of £4000 and £2000, were charged
on C. and the Cavan estates, in exoneration
of the personal estate of the testator.—Bate-
manv. Earlof Roden, 1 Jon. & L. 356; 71. E.
R. 240. (C.)

1. A. devised lands to each of his sons, F.,
J.,5., and P., and directed one-half of his
debts to be paid by F., and the other half by
J., 8. and P., equally ; and charged the lands
devised to them with his debts in these pro-
portions. A creditor of A. filed a bill in 1818
to administer his estate. By the report it
appeared that J. had overpaid his share of the
debts; S. had paid his share with the ex-
ception of a small sum, which was shortly
afterwards paid. Large sums were still due
by F. and P. By the final decree in 1822,
F. and P. were directed to complete the
payments to be made by them; in default
their lands to be sold. In the same year,
after the decree, the plaintiff obtained an
order for a receiver over the lands of F. and
P.; but the receiver was not actually appointed
until 1834. Between 1822 and 1839, the plain-
tiff filed a supplemental bill, and bill of re-
vivor, and took other proceedings in the cause,
but did not prosecute them. The present
supplemental bill was filed in 1839. In its
prosecution it appeared that F.’s share of the
lands never was sufficient to pay his portion
of the debts. Held, that the lands devised to
J.,S., and P. were liable to contribute rate-
ably to make up the deficiency occasioned by
the original insufficiency of F.’s estate to an-
swer the demand on it, and also to the costs
of the suit.— Newby v. Drew, 1 Jon. & L. 445 ;
71. E.R. 349. (C.)

2. Testatrix devised fee-simple lands and

[REAL ESTATE.]

 

Charges on.

leaseholds for years to Y. and his issue, and
other fee-simple lands to H. and her issue,
and charged all the lands so devised with the
payment of annuities bequeathed by her will.
The freeholds and leaseholds are liable to
contribute, in proportion to their respective
values, at the decease of the testatrix, to the
payment of the annuities; and the leaseholds
are not liable in the first instance.— Young v.
Hassard,1 Jon. & L. 466; 71. E. R. 309. (Co.

3. E., by post-nuptial settlement, executed
in 1835, limited lands, “ subject to the debts,
charges and incumbrances in the schedule
mentioned,” to trustees for 1000 years; sub-
ject thereto to his eldest son V. for life;
remainders over in strict settlement. The
trusts for the term were, after the death of E.,
to raise “money sufficient to pay off the debts,
charges and incumbrances specified in the
schedule to the deed, or such or so much
thereof as should then remain unsatisfied ;
and to apply the money so raised in paying
off such debts, charges and incumbrances
accordingly.” E. had also by the same deed
a general power of charging the lands, sub-
ject, however, to the term.

Amongst the debts mentioned in the sche-
dule were two, secured to J. by two promissory
notes. In 1844, E. gave to J. a bond, on
which judgment was afterwards recovered
against him, and obtained, in exchange there-
for, the delivery up of the promissory notes.

E., by will, dated in 1843, referred to the
settlement of 1835, and confirmed it. Under
his general power of charging, he charged the
lands with payment of his debts, so far as his
personal estate was insufficient to discharge
them, and bequeathed the residue of his per-
sonal property, after payment of his debts, to
the petitioners, whom he appointed his ex-
ecutors.

After the decease of E., J. obtained pay-
ment of the sum due on foot of his judgment,
out of E.’s personal estate. Held, that the
lands comprised in the settlement of 1835
were the primary fund for payment of the
judgment obtained by J.on the bond given in
extinction of the promissory notes.—Stuart v.
Castlestuart, 6 I. C. R. 289; 3 I. Jur. N.S. 6.
(C.)—[On Exceptions: 8 I. C. R. 408. (R.)]

4, G., seized of lands, borrowed various sums
of money from 8. On the occasion of each loan
G. gave S. possession of a piece of the land ;
and a memorandum was executed, that S.
should hold the land rent free until the loan
was repaid. Two of the memoranda provided
that G. should not pay interest for the loan
while S. retained the land. Held, that the
transaction amounted to a security upon land,
within the 2 & 3 Vic., c. 27, and that the an-
nual value of the land beyond legal interest
should be applied in reduction of the principal.
—Gore v. Spotten, 71. C. R. 508. (C.)

5. A. devised annuities, which she directed
only to be a lien upon and charged on the yearly
income of her lands, real, freehold, and chattel
real, but not upon any other personal estate.
She directed that if the yearly income of her
Keeping down

lands should fall short of paying the annuities,
the deficiency should equally and proportion-
ably be upon all such annuities. ~Each to
receive according to the magnitude of such
annuity, and in proportion thereto; but no
such deficiency to be vested upon her personal
estate. She devised the residue of her pro-
perty, real and personal, after satisfying and
discharging the annuties, &c. The income of
the lands was insufficient to pay the entire of
the annuities. Held, that they, being charged
on the income only of the lands, were for each
year satisfied by payment of a proportionable
share, and that the arrears were not charged
on the future rents.—Fitz Gerald v. O’ Connell,
111. C. R. 437. (R.)

 

VIII. 2. d. Keeping down Incumbrances.

1. The general rule is, that the tenant for
life is bound to pay the interest upon incum-
brances; but an incumbrancer, if he merely
neglects to enforce payment of the interest
from the tenant for life, will not be debarred
thereby from raising it, with the principal, out
of the inheritance.— Wrizon v. Vize, 1 Con. &
L. 298; 2 Dr. & War. 192; 4 1. E. R. 463. (C.)

2. A tenant in tail is not bound to keep
down interest on charges, nor is a tenant for
life bound to pay interest accrued during the
life of a former tenant for life. When by a
marriage settlement, incumbered lands, of
which the husband was tenant in tail, and a
sum of stock, were vested in trustees; and the
husband was made tenant for life; and an
arrear of interest, due at the date of the settle-
ment, was, under a‘power in the settlement
paid off with a portion of the stock—Held,
that the husband was not bound to replace the
stock so applied.—Kennedy v. Daly, 71. C. R.
445. (R.)

3. A judgment creditor, on behalf of him-
self and the other judgment creditors on the
life estate of X., instituted a suit, to which a
trustee for all the judgment creditors was a
party. After the hearing it was dismissed on
the merits. Another judgment -creditor, who
(save so far as the trustee represented him)
had not been a party to it, subsequently insti-
tuted for a like purpose a suit, which relied
upon different equities, and put forward ad-
ditional facts supported by new evidence.
Held, that the dismissal of the first suit was
not an absolute bar to the prosecution of the
second.

A., seized in fee of estates subject to a
charge of £2000 for his sisters, between whom
it was to be equally divided, gave, on the oc-
casions of their marriages, judgments dated
respectively H. Term 1802, and E. Term 1802,
to secure to his sisters respectively portions of
£1000 and £2000. In 1809, he executed a
voluntary post-nuptial settlement, whereby,
after reciting that he was seized in fee of
those estates, subject to a jointure of £600 for
his wife, and subject also to charges amounting
in the whole to £3000, principal money, with
which they stood charged for the use of his
sisters, as expressed in their several marriage

{REAL ESTATE.]

 

Incumbrances. 309

settlements; and reciting that from the love
and affection which he bore his wife and child-
ren, he was anxious to settle and assure the
inheritance of those estates, in order to secure
for his family the most certain and liberal
provision, which the nature and value of his
estates would admit of, he settled the lands
on himself for life, remainder to his eldest
son for life, remainders over in strict set-
tlement. He subsequently contracted debts,
which were secured by judgments on his life
estate; and, on the marriage of his eldest son
in 1831, executed a deed by which he adopted
and confirmed the limitations in that of 1809.
The judgment of E. Term 1802, was paid off out
of the rents and profits of the life estate of A.,
who died in 1861. Held, that the deed of 1809
showed no intention to onerate A.’s life estate
with the judgment of E. Term 1802; and that
therefore the judgment creditors on that
estate were entitled to raise out of the inheri-
tance the amount paid on foot of this judg-
ment out of the life estate—Dolphin v.
Aylward, 15 I. C. R. 583. (C.A.)

4. Estates subject to charges were settled
on A. for life; remainder to his eldest son, B.
for life; remainder to B.’s first and other sons
in tail. A. covenanted to sell C. a portion of
the estates; and, out of the rents received by
him before the sale, and the purchase-money,
to pay off all the tharges on the settled estates.
C., in consequence of A.’s default in not keep-
ing down the interest, proved insufficient to
pay off the incumbrances, and another portion
of the estates was sold to defray the deficiency.
Held, that B. had an equity to be recouped
the sum so raised for payment of the principal
as well as the interest of the charges which C.
had proved insufficient to pay, out of the rents
of A.’s life estate, and in priority to A.’s judg-
ment creditors, whose judgments had been
obtained subsequently to the date of the set-
tlement.—Kilworth v. Mountcashel, 15 I. C. R.
565. (R.)

 

VIII. 2. e. Charges on Lands, how discharged,
extinguished, or merged.

’ 5. By deed of 1812, lands were, subject to
outstanding incumbrances, settled on A. for
life ; remainder to his first and other sons in
tail. In 1816, A. granted to B. annuities
charged upon his life estate. In 1818, A. paid
some of the prior incumbrances, and had them
assigned to a trustee for his own benefit. In
1820, A. and his trustee joined in assigning
those incumbrances to C. for value. Held, that
the arrears of interest of the charges paid off
were incumbrances on the life estate, prior to
the annuity; and that as against the annuitant
the interest payable on the charges out of the
life estate had not been merged by the owner’s
dealings with it—Harman v. Forster, 1 Dr. &
Wal. 637. (C.)

6. A. by will bequeathed to his daughter,
D., wife to C., £500 for her sole and separate
use, and not to be in any manner subject or
liable to the debts, contracts, or engagements
of C.; the interest to be paid to and received
by C. during his life. J. charged part of his
310 Charges on.

realty with payment of that bequest. C. and
D., by deed executed by both, assigned to a
purchaser for value their several and respec-
tive interests in the £500, and the interest
payable thereon. The assignee filed a bill to
raise the charge. Held, that D. and C. were
competent to make a valid assignment thereof,
and that D. had power, during C.’s life, to
dispose of her interest in the £500. On pay-
ment of that sum, and of the interest due, the
lands charged with the bequest were decreed
to be discharged and exonerated therefrom.—
Keene v. Johnson, 11. E. R. 464. (E.E.)

1, After the death of the testator, V., his exe-
cutrix C. being sued by a creditor, D., made
with him an arrangement in pursuance of
which she gave him a judgment at law. The
demand, having been ascertained by the Mas-
ter’s report in an equity suit, was transferred to
A., who paid D. To secure the debt C. assigned
her jointure to A. on trust to pay himself the
interest on the debt, and to pay the premiums
on a policy effected in his name on C.’s life;
and covenanted that whichever of her sons
(who were entitled to the realty) should first
come of age should mortgage the realty to A.
for the amount.’ V.’s assets proved insuf-
ficient to pay his debts. The policy was suf-
fered to expire ; the mortgage was not execu-
ted. A. instituted a suit to raise his demand
out of V.’s realty. Held, that the effect of
these transactions was not to discharge the
realty from A.’s demand; and that the con-
sent for judgment, and the report, did not
constitute an admission of assets by C.—Pur-
cell v. Blennerhassett, 9 1. E. R. 103; 3 Jon. &
L. 24. (C.)—[See s. c. 10 I. E. R. 476. (R.)]

2. The decision of the Common Pleas in
Handcock v. Handcock (10 I. L. R. 565.), on the
effect of a release of part of the debtor’s
lands from a judgment in discharging his
other lands, doubted.—Handcock v. H., 11 I.
E. R. 472. (C.)

3. A., by will, granted an annuity charge-
able on ten houses, three of which he after-
wards conveyed to the annuitant. Held, an
extinguishment of the annuity; either by
analogy to the common law, which holds that
a purchase by a grantee of a rentcharge of a
portion of the land out of which it issues ex-
tinguishes the rent; or because the grant of
the three houses revoked the will.

That the plaintiff should elect between her
rights under the devise and under the deed.

That, though in general a will speaks from
the testator’s death, it has effect during his
life for the purpose of revocation or extin-
oo v. Carolin, 4 I. Jur. 214.

4. V. devised a rentcharge of one hundred
guineas to A. for life, and after her death
“unto and amongst B., C., and D., the child-
ren of the said A. and me, to be equally
divided between them, share and share alike,
to hold to the said B., C., and D., and to their
heirs for ever, as joint tenants; but in default

[REAL ESTATE.]

 

Extinguishing, gc.

of such heirs,” the annuity to sink into the
lands.

B., C., and D. were the illegitimate children
of V. and A. B., on her marriage, put in
settlement her undivided reversionary share.

C. and D. died, intestate and unmarried, in
A.’s life, without having dealt with their
shares. B. survived A. Held, that B. was
entitled to raise out of the lands only one-
third of the rentcharge. — Daly v. Aldworth,
151. C. R. 69. (C.)

 

VIII. 2. £. Incumbrancers’ Rights.

5. The general rule is, that the tenant for
life must pay the interest upon incumbran-
ces; but an incumbrancer, who merely ne-
glects to enforce payment of the interest
from the tenant for life, will not thereby be
debarred from raising it, with the principal,
out of the inheritance——Wrixon vy. Vize, 4
I. E. R. 463; 2 Dr. & War. 192; 1 Con. & L.
298. (C.)

6. A. devised freeholds, held by lease for
lives renewable, to C. and G., and directed in
what proportions they should pay the head
rent. C. allowed a judgment to be entered
against him, and an arrear of head rent and
renewal fines to accrue in respect of his
share; and then by voluntary deed conveyed
his share to G., who paid the arrears of rent
and fines, and entered into possession of C.’s
share. On a bill filed by the judgment credi-
tor—Held, that G. was not entitled to repu-
diate the conveyance as an absolute sale to
him, and to claim as an incumbrancer against
the estate the amount of the fines and rents
so paid by him; but that he was a purchaser
thereof. A sale was decreed against him.—
Barber v. Roe, 4 I. E. R. 692; Long & T. 655.
(E.E.)

7. When a tenant for life buys up an incum-
brance for less than is due upon it, guere, can
more be enforced against the inheritance than
the sum actually paid?

If the assignee of a mortgage knowingly
suffers a tenant for life of the equity of re-
demption, put in settlement since the mort-
gage, to remain in possession without paying
head rents, and then advances him money to
save the estate from eviction—Semble, The
sum advanced may nevertheless be enforced
as salvage against the inheritance. — Hill
v. Brown, 61. E. R. 403. (C.) .

8. It appears to be the established rule,
that if a man has power to charge lands with
a sum not exceeding a specified amount, he
may charge it with that sum and interest.—
Simpson v. O’ Sullivan, 3 Dr. & War. 446. (C.)

 

VIII. 3. Lands agreed to be purchased.

 

VIII. 4. Lands agreed to be sold: Charges on.

9. Freeholds for lives renewable and a free-
hold for lives and leaseholds for years were
included in the same articles. The renewable
Exemption from

freeholds were sold by a prior incumbrancer,
but a balance of the purchase-money re-
mained in Court. By a deed in execution of
the articles, treating all as subsisting estates,
an annuity was granted to A. and her heirs,
and another annuity to B. and heirs, charged
on all the properties. The money in Court
was afterwards applied, without the annui-
tant’s knowledge, to improving the chattel
interest, and the freehold for lives expired.
Held, that the money produced by the sale
continuing in the view of this Court real
estate, there was always a freehold estate, out
of which the annuity issued, and that accord-
ing to the doctrine of Butt’s case, 7 Rep. 23, u,
the annuity descended to the grantee’s heirs.

Semble—That even if it were otherwise, the
annuity being originally a freehold could not
be changed to a chattel by the subsequent
events.

When one of two co-plaintiffs has no title,
the bill must be dismissed generally, though
the claim of the other is valid and relates to
an independent subject.

Held, that a bill by co-plaintiffs to raise two
annuities was not multifarious.—Richardson v.
Nixon, 71. E. R. 620; 2 Jon. & L. 250. (C.)

 

VIII. 5. Exoneration of real estate.

1. Direction to pay debts; then legacies to
B.; then devise of lands to A. and B., who
were appointed residuary legatees and execu-
tors. A. was directed to pay a particular
charge out of the rents and profits. Held,
that this direction did not exempt the lands
from liability to pay the other debts——Foster
v. Thompson, 6 I. E. R.168; 4 Dr. & War. 303;
2 Con. & L. 568. (C.)

2. Where a judgment debtor was possessed
of a chattel and seized of freehold estate, both
of which descended to his son, a minor, who
made a will as to both, which passed the chat-
tel, but the freehold descended to his heir-at-
law, and the devisee afterwards sold the chat-
tel; Semble—The heir could not claim to have
the freehold exonerated from the judgment
by the chattel. Boyd v. Belton, 8 I. HE. R. 118;
1 Jon. & L. 730. (C.)

IX. Persona Estate.

1. Exemption of, from debts.
2. Limitation of Personal Property.

 

IX. 1. Personal Estate: exemption of, from
ebts.

3. V., by will, directed that his debts and
legacies should be paid by his brother, C.,
whom he named executor and residuary lega-
tee. V.then charged two, out of three lega-
cies bequeathed, on the timber growing upon
his real estate; and bequeathed the timber to
C. Held, that the general personal estate
was exonerated from paying those two lega-
cies.—Lanphier v. Despard, 41. E. R, 334; 2
Dr. & War. 59; 1 Con. & L. 200. (C.)

4. V., by will, directed immediate payment
of his simple contract debts; first, out of his

[PERSONAL ESTATE.]

 

Debts. 811

personalty ; if that proved insufficient, out of
the price realised by selling the lands of C.
V. then gave all his real and personal estate,
including C., upon trust to pay out of his
personalty, in six months after his decease,
all his debts and legacies, and to raise out of
C. £2000, to be invested on trusts for his
daughter B. and her issue; and upon failure
of those trusts to sink into and become part
of the residue of his personalty. After recit-
ing, that on the marriage of his daughter H.,
he had perfected two bonds to the trustees of
her settlement for sums payable the day after
his death; and that it was his intention that
the £2000 bequeathed to the use of B. and
her issue, and the money so due to the trustees
of H.’s settlement should be paid out of C.,
V. directed C. to be sold, and the produce to
be applied in payment thereof; and if C.
should not produce a sum sufficient to pay
the two bond debts and the £2000, V. directed
that the deficiency should be raised by sale or
mortgage of D. He bequeathed all the resi-
due of his personalty, after payment of his
debts, in trust for B., for life, and then upon
the trusts of the £2000. Held, that the bond
debts were charged on C. and D. in exonera-
tion of the personalty.—Bateman v. Earl of
Roden, 71. E. R. 240; 1 Jon. & L. 356. (C.)

5. V. devised his estates, real and personal,
in Ireland, after paying all his just debts,
funeral and testamentary expenses, on trust,
chiefly for the use of a cousin. All his real
and personal property in England he gave to
such uses as his widow should appoint; in
default of appointment, to her for life; re-
mainder to the same uses as his Irish free-
holds. Proviso, that if his personal estate in
Ireland proved insufficient to pay his debts
and legacies, they should be charged on his
Irish freeholds and leaseholds. He exonerated
his real and personal estates in England
therefrom, and died in England. Held, that
his funeral and testamentary expenses in
England were charged, as well as his Irish
testamentary expenses, on his Irish estates,
in exoneration of his English personalty.—
(e" vy. C, 91 E.R. 197; 3 Jon. & L. 175.

IX. 2. Limitation of Personal Property.

6. By marriage articles, a sum of money
was vested in trust to permit the wife, during
the joint lives of her and her husband, to
receive the interest to her separate use; after
the death of the husband, in trust for the wife
and her assigns during her life, in case she
should survive him; after the death of the
wife, as to one moiety upon trusts, and as to
the other moiety in trust for the sole absolute
use of the wife, to be disposed of by her in
such manner as she might appoint by any
deed during her coverture, or by any will to
be duly executed by her notwithstanding her
coverture. Held, that the wife could not dis-
pose of her entire estate in the latter moiety
of the fund in the husband’s lifetime, and
therefore no valid release could be given for
it.—Nizon v. N., 8 I. E.R. 254; 2 Jon. & L.
416. (C.)

 
812 Limitation of.

1. Bequest of the use of plate, with power
to dispose of such portion thereof as the
legatee might think proper, preceded; by an
absolute gift of other chattels to the same
person—Held, to give a life interest only in
the plate, with a power of disposition over
part of it.—ZEispinasse v. Luffingham, 9 1. E. R.
129; 3 Jon. & L, 186. (C.)

2. X., after devising fee-simple estates to
A. for life, remainder to his first and other
sons in tail, like remainders to B. for life and
to his sons in tail, and to several others, be-
queathed real and personal chattels to trustees
in trust to permit A. to receive the issues and
profits thereof for his life, and after his de-
cease to permit “each and every of the
several other persons aforesaid, to whom an
estate for life in the real estates was herein-
before limited, successively and as each of
them shall become seized of said real and
freehold estates under the aforesaid limita-
tions thereof, to take and receive the rents,
issues and profits thereof, for and during the
term of his and their natural life and lives
respectively; and from and after the decease
of the last of the said last-mentioned tenants
for life as shall become seized in manner
aforesaid, or if none of them shall so become
seized, then from and after the decease of the
said A., upon trust to grant, assign, and con-
vey” the chattels “to such person or persons
as shall then become seized of the said real
and freehold estates under any of the limita-
tions aforesaid.” Held, that the chattels
vested in a son of A., who was tenant in tail
of the real estates at the death of A., and did
not vest in an elder son of A., a prior tenant
in tail who died in the lifetime of A., or re-
main in contingency until the death of the
last of the successive tenants for life.-—Potis
v. PB. 91. E.R. 577; 3 Jon. & L. 358. (C.)—
[Affd.. 1 H. L. Cas. 671.]

3. M., possessed of a chattel interest in
lands, by deed operating as a common law
conveyance, assigned them to A., B., C., and
D., to be divided and enjoyed by them in man-
ner following—that is to say, A.’s one-fourth
to consist of Greenacre; B.’s fourth of Black-
acre; C.’s fourth of Whiteacre; and D.’s
fourth of Redacre; to have and to hold the
said lands unto the said A., B., C., and D.,
as follows—that is to say, to the said A. his
one-fourth for his life, and from and after his
demise, if he should leave lawful issue him
surviving, to such of them as he should ap-
point ; but if he should die without issue, his
fourth to be divided and descend to the sur-
vivor and survivors of the said B., C., and D.,
which should be then living. <A. survived B.
and C., and died in the lifetime of D., without
having had issue. Held, that the habendum
was not inconsistent with the premises.

That the gift over, if A.should die without
issue, was not void for remoteness.

And that D. was entitled to A.’s share of
the lands.—Kerr vy. K., 4 I. C. R. 493; 7 I.
Jur. 76. (C.)

4. M. bequeathed a chattel interest to J.
and T., and to the survivor of them, and to

[PERSONAL PROPERTY.]

 

Limitation of.

the heirs of such survivor, not as joint heirs,
but as tenants in common, and declared it to
be his will that in case both J. and T. died with-
out issue, the share or shares of both, or such of
them as should die without issue, should go to
the testator’s rightful heirs-at-law. TT. be-
queathed all his property of every description
toJ., anddied. Held, that J. took an absolute
interest in the chattel. J. bequeathed the
same interest to B. for life, without impeach-
ment of waste; and from the decease of B.,
then to the use of the first son of B., and the
first and other sons of the said first son, or
the daughter or daughters of said first son;
remainder to the second and other sons of B.
successively, and their issue, male or female ;
for want of such issue male in B., remainder
to his issue female, and for want of any
issue in B., remainder over. Held, that B.
took a life interest, with remainder to his first
son absolutely Murphy v. Johnstone, 6 I. C.
R. 230. (C.)

5. A., in 1806, bequeathed a chattel lease to
R. and the heirs of his body, and if R. died
without issue, then to C. and the heirs of his
body; and if both R. and C. died without
issue, then to J. and the heirs of his body. A.
then directed that in case R. and C. died with-
out issue in the lifetime of J., whereby J.
would become entitled to the said premises, a
sum of £2000 bequeathed to J. should be paid
to other persons; and further, that if R., C., and
J. all died without issue, or if R. and C. died
without issue in the lifetime of J., and he
should refuse to pay the £2000, if he had re-
ceived it under the will, then, and in either of
such cases, he gave the lease to G. and the
heirs of his body. A. then directed that if, “ by
either of the events aforesaid happening in the
lifetime of G., he became entitled to the lease,”
then he should pay £2000 bequeathed to him
to other persons ; and if B., C., J., and G. all
died without issue, or if R., C., and J. died
without issue in the lifetime of G., and he re-
fuse or neglect to pay over the £2000, then,
and in either of such cases, A. gave the lease
to T. and the heirs of his body; and if by
“either of the events last mentioned, happen-
ing in the lifetime of T., he became entitled
to the lease,” then he was to pay over £2000
to certain persons. R., C., and J. all died
without having a child, and in the lifetime of
G. and T. G. did not pay over the £2000.
Held, that the bequest to T. was too remote,
and did not entitle him to the lease.

A. gave other lands to X., and the heirs of
his body ; and if X. died without issue living at
the time of his death, then A. gave the lands
to R. and the heirs of his body; and to C. and
the heirs of his body, the first-named chattel
lease; and if X. and R. “died without leaving
issue,” then A. gave the second set of lands to
C., and the lease to J. and the heirs of his
body. A. then declared that if X., R., and J.
“died without issue,” or if J., becoming en-
titled to the lease by the last bequest, should
omit to pay over £2000 to the persons named,
then A. gave the lease to G. and the heirs of
his body ; and directed that “if X., R., and C.
died without issue as aforesaid,” the second
Limitation of

set of lands should go over to J. and the heirs
of his body, and the lease should go to G. and
the heirs of his body, and J. and G. should
respectively become entitled to the lands de-
vised to them on the deaths of X., R., and C.
without issue in the lifetime of G., then G.
was to pay £2000 bequeathed to him over to
certain persons. And if “X.,R., C., and J.
died without issue as aforesaid,” then A. gave
to “G. and the heirs of his body the second
set of lands, unto T. and the heirs of his body,
and his several estates and interests in the
leasehold lands.” Held, that the words “die
without issue” were to be read in all these be-
quests “die without leaving issue ;” that the
word “and” in the last clause might be trans-
posed, and placed immediately before the
words “unto T. and the heirs of his body ;”
and that X., R., C., and J. having all died child-
less, T. was entitled to the lease —Falkiner v.
Hornidge, 6.1. C. R. 551. (C.)—[Affd. 81. C.
R. 184. (C.A.)—See s.c. 91. C. R. 168.]

1. I. devised specific property on trust tor
his eldest son IT. absolutely. He devised
other specific real property to trustees during
the minorty of his second son, D., to receive
the rents and create and accumulate a fund
for the benefit of I.’s younger children, and
after D.’s attaining age, upon trust for him
absolutely. I. created similar trusts of other
property for the benefit of his other younger
sons, and directed similar accumulations du-
ring the minority of the persons to be entitled
to them. After sundry legacies and other
complicated provisions, I. bequeathed any
sum which should remain out of his assets, or
of the savings of his real, freehold, or chattel
properties, and all the residue of his estates,
to and among all his children who should
attain age, share and share alike; but if no
child save T. should attain age, he then gave
to his wife £1000, and authorised her to dis-
pose of a house among his children; and as to
the remainder of his property which would
have descended to such child, if living, he
gave it to’ his brothers and sisters. At the
date of the will T. had attained age. All the
other children were minors. Held, that T.
was not entitled to any share of the residue.—
Hanna v. Bell, 7 I. C. R. 208. (C.)—[Affd.,
ibid, 221. (C.A.)]

2. F., tenant of lands belonging to the see
of C., devised them for a chattel interest to
R., with a toties quoties covenant for renewal.
R. died intestate, leaving two infant daugh-
ters him surviving. In 1838, F.’s interest was,
under 3 & 4 W.4, c. 37, converted into a fee,
D., acting under a void grant of administra-
tion of the goods of R., obtained from H.
a conveyance in fee of R.’s interest under the
6&7W.4,¢.99. R.’s daughters died without
attaining their age. Held, that D. was seized
of the legal estate in the lands, in trust for
the personal representatives of the daughters
of R.— Campbell v. Ross, 71. C. R. 222. (C.)

38. G. having four sons (the eldest of whom
was of age), and one daughter, by an inden-
ture settling his estates upon himself and his
sons in strict settlement, limited a term of

 

[PERSONAL ESTATE.] Personal Property 313

500 years, upon trust to raise £3000, and pay
it as portions amongst his younger children,
in such shares, &c., as he should by deed or
will appoint; in default of appointment,
“amongst his younger children, if more than
one, for whom no appointment of any part
thereof should have been previously made, in
equal shares; and if but one such younger
child, then the whole thereof to such younger
child, whether any appointment of part thereof
should have been previously made to him
or her, or not ;” the shares of such of them as
should be so entitled, to be payable at the age
of 21 or marriage, with interest from the time
of appointment by way of maintenance ;
provided that if any son should die, or be-
come an eldest son, or any daughter should
die before his or her portion “became pay-
able as aforesaid,” the portion of such son or
daughter should not merge, but should go
among the survivors ; but if all the younger
children should die before any of said por-
tions of the £3000 should “become payable
as aforesaid,” then the said sum should merge
in the inheritance; provided that nothing
therein contained “should be deemed to en-
title any of said younger children” to any
part of the £3000 during the life of G., un-
less appointed to him or her by G. G.’s
eldest son died soon after the execution of
the settlement. The daughter also died, and
G., in ignorance of her death, by will ap-
pointed the £3000 equally between her and
the two younger brothers, making the shares
payable at their age of 21 or marriage. The
second son afterwards died in the lifetime
of G., whereby the third son, who had at-
tained age, became an eldest son. Then G.
died. Held, that the surviving younger son
was entitled to the whole £3000.—Sleeman v.
Afagrath, 7 I. C. R. 304. (C.)—[Affd. by the
Lord Chancellor, 8 I. C. R.195; 31. Jur. N.
8. 233. (C.A.)]

4, A fund was by a marriage settlement
vested in trust, first to pay the interest to the
husband A. for life ; after his death to the wife,
if she survived him, for life; after the death
of both, to “assign, transfer, and set over”
the sum amongst the issue of the marriage, in
such shares and at such times as A. should by
will or deed appoint; in default of appointment,
to “assign, transfer and set over” the sum
amongst the issue of the marriage, share and
share alike; but if there should be no issue
living at the decease of the survivor of the hus-
band and wife, then to “assign, transfer and set
over” the sum to A., his executors, &c. There
were four children of the marriage. Three died
in A.’s lifetime, unmarried and without issue,
one of them having attained age, and the
others under age. A., who survived the wife,
while two of the children were alive, ap-
pointed by deed a part of the fund to a son,
who alone survived him, and directed that
the remainder should go and be held in all
respects as the entire fund would have gone
if no appointment had been made thereof.
Held, that the word “ issue” was not confined
to children, but meant all descendants.

That the issue took vested interests in

40
314 By Implication
equal shares on their births, subject to the
amount of the shares being varied by A.’s ap-
pointment, and subject to his right to appoint
in favour of surviving issue, to the exclusion
of the representatives of the issue who had
died before the appointment; and, therefore,
that the unappointed part of the fund was
divisible equally among a son who survived
the father, and the representatives of three
children who died in the lifetime of the
father, whether they had attained 21 or not.
—In re Howard’s Trusts, 71. C. R. 344. (B.)

1. A., in 1839, bequeathed to his illegiti-
mate son, R., leaseholds; and if R. should die
without “heirs or issue,” over. Held, that as
the Wills Act (1 Vic., c. 26), s. 29, is expressly
contined to the word “issue,” it makes no
change in the meaning of the expression “ die
without heirs of the body,” and therefore
(“ without heirs” in the will meaning “ with-
out heirs of the body,” R. being illegitimate),
the will did not confer the absolute interest
on R. with an executory devise over, if he
died without issue living at his death, but an
estate tail, and, the property being leasehold,
the absolute interest. This decision is sup-
ported by Harris v. Davis, 1 Col. 416, and
Morris v. Morris, 17 Beay. 198.—In re Sallery,
111.C. BR. 236. (L.E.C.)

2. B. bequeathed moneys lent on mortgage
to A. for life; remainder to his “first and
other sons.” The will also contained devises
of fee-simple, freehold, and chattel lands, to
the first and other sons of A. successively.
Held, that the first son of A. took the whole
mortgage money absolutely.--Jn re Stauntons,
141.C.R. 98. (R.)

X. Estates By ImpuiicaTIon.
[See also ante, II. 1.]

3. A., having an estate charged with his
wife’s jointure, but held for an interest, which
must expire immediately after his own death,
devised to his son all his property, subject to
the jointure and £70 a-year for his wife; which
£70 a-year A. thereby charged on all his pro-
perty. Held, that the jointure was not charged
by implication. Doolan v. Smith, 9 I. E. R.
426; 3 Jon. & L. 547. (C.)

4. A., seized in fee, devised one moiety of his
estate to M. for life; remainder to her first
and other sons in tail male; for want of such
issue, remainder to her issue female and the
heirs of their bodies, with power to M. to
charge £1000 for younger children; for want
of such issue, remainder to J. for life, with
similar remainders to her issue.

By codicil reciting M.’s marriage with D.,
A. devised one moiety to M. for life; re-
mainder to her issue successively, and the heirs
of their bodies “as in said will limited; and for
default of such issue to D. for life,” with re-
mainder over as in said will limited. The
codicil contained this clause :—“I ratify my
will with respect to my real estate in every
particular not hereby altered. The only alter-
ation I intend hereby is, that if M. should die

 

[ESTATES.]

 

or Descent.

without issue, or failing issue, that D., her
husband, or any other husband she may have,
should hold a moiety of my estate, during his
life.” Held, that this latter devise was to
take effect on the determination of the ex-
press limitations in the will to M.’s first and
other sons in tail, and to her daughters in
tail general; and not on a general failure of
M.’s issue; and that, therefore, M. did not
take an estate tail by implication —Hamilton
vy. West, 101. E. R. 75. (R.)

5. A devise of lands in trust for A., a re-
puted son, for life, and after his decease for
and to the first and every other son of A.
successively in tail male, and in default of
such issue, to the daughter or daughters of A.,
to hold to them, if more than one, and their
heirs, as tenants in common; and in default of
issue of A., to and for testator’s heirs. Held,
that A. took only an estate for life, and that
no remainder in tail to him could be implied
after the limitation to the daughters.— Tucker
v. Baker, 11 I. E. R.104. (C.)—[Affd., 3 H.
L. Cas. 106.]

6. Devise to testator’s son A., and his issue,
male and female, in such shares, manner, and
proportions as he might by deed or will ap-
point, with power to jointure a wife; and if
A. died without lawful issue, then to testator’s
three daughters, equally, share and share
alike, as tenants in common and not as joint
tenants, and to their heirs and assigns. Aeeld,
that A.took an estate tail_— Whitsitt v. Thomp-
son, 121. E. R. 119. (C.)

 

XI. By Purcwass.

 

XII. Estates sy Descent.

7. A. was entitled, by descent from his mo-
ther, to the equitable estate in one moiety,
and to the legal estate in one-sixth of lands
held for lives renewable for ever, X. being the
surviving c. g. vie. During A.’s minority a
new lease, by way of renewal, had been taken
by his father, which on his death descended to
A., X. being then the surviving c. g. vie in it
also. Held,on A.’s death that his interest
descended to his heir er parte materna.

A renewal duly made changes the course of
descent of the equitable fee in an estate for
lives renewable for ever, as equity will not
interfere to keep it in a distinct line of de-
scent from the legal estate ; and to come with-
in this rule, it is not necessary that the legal
estate in the entirety should vest in the equi-
table tenant. But a renewal to the father of
a minor, the estate in which descends to the
minor, who has also an immerged estate ex
parte materna, is not w new purchase of the
equitable interest so as to alter the line of
descent.—Creagh v. Blood, 8 I. E. R. 688; 3
Jon. & L. 183. (C.)

8. By deed of 1827, P. covenanted with his
son D., that after the decease of R. the estate
which should thereupon descend to or vest in
P. should be conveyed to uses. R.was found
’ Legal or

a lunatic. In 1820 he had made a will, under
which, if valid, G. took an estate tail. In
1830, the lunatic being dead, P. in violation
of his covenant, conveyed the estate to H.
In 1832 an ejectment was brought by those
claiming under the will of the lunatic, at the
trial of which P. and H. disputed the will.
The conveyance of 1830 was set aside by a
decree of the H. of L., by which D. and his
children were declared entitled, as against P.
and H., to the benefit of the deed of 1827;
and it was referred to the Master to settle a
conveyance. The Master, by his report in
1843, found that D. had not laid before him
any conveyance. In 1841, H. being in posses-
sion, a compromise was entered into between
him and G., and two deeds were executed, by
one of which G. released all right and title to
the estate to H., in consideration of a convey-
ance of a portion of the estate which was
made by the other deed. A supplemental
bill having being filed by D. and his children
to carry the decree of the H. of L. into ex-
ecution against H. and G., who was not a
party to the original suit,—Held, that though
the plaintiffs had not availed themselves of
their right of having a conveyance under the
decree, they had not forfeited their right to
the benefit of it, as H. had by the deeds of
1841 disabled himself from conveying the
legal estate.

That the first deed of 1841 being a release,
and not a conveyance, was an aknowledgment
of the estate by descent in H., and operated to
confirm that estate; and therefore that the
plaintiffs were entitled to have the Lords’ de-
cree enforced against G. (as claiming under
H.), although he was not a party to the
original suit.

The uses to which the estate was to be con-
veyed, by the deed of 1827, were to D., re-
mainder to the first and every other son of
his first marriage successively, and the heirs
male of each such son lawfully issuing; re-
mainder to the right heirs of D., who, on the
settlement executed on his second marriage,
conveyed his supposed reversion to the use of
the children of the second marriage. D. and
his children of both marriages were plaintiffs
in the original and supplemental suits.

Quere—Whether the fee vested in the sons
of the first marriage ; and whether the child-
ren of the second marriage took any estate.

But as the H. of L. had declared that the
children of the second marriage were entitled
to the benefit of the deed of 1827, the Court
held that there was no misjoinder of plaintiffs
in the supplemental suit.—Perssev. P., 3 1. C.
R. 196; 4 1. Jur. 369. (C.)—[Affd. 5 H.
Lds. Cas. 682. See Persse v. P., 7 Cl. & F.
279.)

 

XIII. Lecat or Equitaste Estates.

1. Testator, by a codicil reciting that cer-
tain lands produced «a clear yearly rent of
£237, devised them to trustees, in trust for
charitable purposes. He then directed that
in the event of there being an increase of the
rents of the lands, by any new letting, the
surplus should go to the only use and behalf

[ESTATES.]

 

Equitable. 315

of the person or persons of the 8. & C. fami-
lies, who, for the time being, should be lords
and ladies of the manor of D.; andif the said
families did not protect the charities, or if the
said families should become extinct, then,
and in either of such cases, the trustees were
to apply the said surplus rents, in addition to
the provision already made, for the charity.
Held, that the gift of the surplus rents to the
members of the 8S. & C. families was a good
equitable devise in fee, and that the gift over
to the trustees of the charity was bad for re-
moteness.— Commissioners of Ch. Don. v. Clif-
ford, 1 Dr. & War. 245. (C.)

2. A conveyance to an alien vests a legal
estate in him until office found, and a convey-
ance in trust for him vests in him an equi-
table estate, until the Crown establishes its
right by information in equity.

But an alien cannot take by act of law; e.
g., by descent or courtesy.—Dumoncel v. D., 13
I. E.R. 92. (R.)—[See Doyle v. Dumoncel, 11
I. E. R. 342, 517.)

8. Lands, held for lives renewable for ever,
were conveyed for all the tenant’s estate to
trustees, their heirs and assigns, for the
lives in the lease. The deed contained a de-
claration that the names of the trustees were
made use of as trustees for B., and that the
grants therein contained were for the sole use
and benefit, &c., and for no other use, intent
or purpose. Held, that B. took the entire
equitable interest in quasi fee—M‘Clintock v.
oe 10 1. C. R. 480; 5 I. Jur. N. §. 317.

)

4. A., being seized of lands, covenanted
with his intended son-in-law (B.) to give
them to B. as a portion with his daughter.
A. and B. further covenanted that the lands
should be to her use during her life, then
(subject to an equivocal limitation in B.’s
favour) to the use of the “issue.” A. re-
served to himself a life use, and a provision
for his wife if she survived him. This deed
was executed in 1760.

By a subsequent deed A. assigned to B. all
his estate in the lands, to hold during A.’s
life. This deed was executed in 1766. In
1768 A. and B. executed a third deed, for
the express purpose of explaining and con-
firming that of 1760. They thereby conveyed
their respective interests to «a trustee, but
limited interests to themselves, and to their
respective wives; with an ultimate limitation
to the “issue” of B., omitting words of in-
heritance. This deed also gave B. and his
wife a power of appointment to and amongst
the “issue.” Held, that, notwithstanding those
several deeds, the legal reversion in fee still
remained vested in A., but that the beneficial
interest should be deemed to have become al-
together vested in B. and his issue; and that
this construction should still be acted upon,
notwithstanding the lapse of time, the enjoy-
ment hitherto having always been in accord-
ance with it.

The legal estate and the beneficial interest
having, however, become vested by descent in
316

the last owner, the question as to whether
there was not a merger of the latter, was re-
served for further argument.—In re Given’s
Estate, 15 I. C. R. 328. (L.E.C.)

1. V., seized of lands under leases for lives
renewable for ever, devised, in 1824, all his
freehold leases and interest whatsoever to
trustees and the heirs of their survivor, in
trust, after payment of the head rents, to apply
the clear yearly rents amongst his three daugh-
ters during their respective lives, in equal
shares, for their separate use; and if any or
either of them died leaving lawful issue, then
in trust as to her share for the use of such
issue as she should by deed or will appoint ;
in default of such appointment, to the use of
such issue equally, share and share alike. He
directed that if any of his daughters died
without issue, her share should go to the sur-
vivor or survivors of them for the increase of
her and their respective shares, to their sepa-
rate use, and to go to their lawful issue; sub-
ject to the like power of appointment amongst
them ; if all his daughters died without leay-
ing lawful issue then in trust to pay the rents
to his nephew during his life, and after the
nephew’s death, if he left lawful issue, in
trust, as to one-half of the freehold and lease-
hold interests, to the use of such issue as he
should appoint; in default of appointment,
equally ; and as to the remaining half, to the
use of the issue of his sister’s children in equal
shares, and to their lawful issue; if his nephew
died without issue, then as to the whole of his
freehold and leasehold interests, to the use of
his sister’s children in equal shares, and to
their lawful issue, if they should be then
dead; then as to the whole in trust for the
issue of his nephew; and in case of the death
of his nephew and the children of his sister
without issue, in trust to assign over the free-
hold and leasehold interests to his own right
heirs. The trustees were given a power to
lease from time to time as they should remain
seized and possessed by virtue of the trusts
contained in the will, with the consent of the
person or persons then entitled. Held, that
the legal estate was devised to the trustees
during the existence of the entire series of
limitations; and that V.’s daughters took
equitable estates in quasi tail in their respec-
tive shares.—Sherwin v. Kenny, 16 I. C. R.
138. (R.)

 

XIV. ExcHancE of.

 

ESTOPPEL,

2. A conveyance by lease and release does
vot operate by way of estoppel.—Stackpoole v.
&., 61. E.R. 18; 2 Con. & L. 489. (C.)—[See
Loydv. L. 592. (C.)]

3. By deed, reciting the title of A. to some
lands, and of B. to others, A. and B. purported
to convey to trustees some of A.’s lands. By
« separate testatum A. alone conveyed the
remainder of them, and also purported to con-

 

[ESTATE.—ESTOPPEL.]' .

vey B.’s lands. A. alone covenanted for title.
There were powers of sale and exchange, in-
cluding all the lands and premises, and to
change the trustees, which were introduced
with the usual words of agreement by all
parties to the deed. Held, that the deed bound
B.’s lands, at all events in Equity, and Semble,
was an effectual conveyance of them at Law.—
Hill v. Mill, 12 I. E. R. 107. (C.}—[Varied, 3
H. Lds. Cas. 828.]

4, A., who had been a ward of Court, within
afew months after his discharge, being in
embarrassed circumstances, and sued by a
creditor, confessed a judgment for £500 to B.,
a solicitor, his cousin-german and land-agent,
whose advice entirely guided A. in managing
his affairs. Another attorney (employed
through B.) defended A. against the creditor,
and was solicitor on record for A. in proceed-
ings in Chancery, which were really attended
to by B. The judgment was soon registered
asa mortgage. During subsequent proceed-
ings by the creditor, A., under the advice of
B., made an affidavit stating that the judg-
ment was given for full and valuable conside-
ration received. B.’s heir instituted a suit to
set aside the judgment, alleging that it had
been given without consideration. It appeared
that the suit was intended merely to delay the
creditor. Held, that the relation of solicitor
and client had existed between A. and B. at
the date of the judgment, and that the heir
might have relief.

After confessing the judgment, A. agreed to
sell his estate, subject to incumbrances, to B.,
who was then, in fact and on record, A.’s soli-
citor, for £100. The value was considerably
greater. A solicitor, an intimate friend of
B., was, at his suggestion, employed by A.;
went through the form of changing B. as A.’s
solicitor; and on A.’s behalf examined the
conveyance, and submitted it to counsel, but
did not otherwise advise or consult with A.
Held, that A. had no sufficient and indepen-
dent advice; that the conveyance should be
be set aside; and was in no way the better
for the relationship between the parties.

That A.’s letters to his mother could not be
read to show how he felt towards B.—Low v.
Holmes, 8 I. C. R. 53; Dr. Rep. temp. Napier,
290. (C.)

5. An executor, believing that there would
be assets sufficient to pay a legacy, became
trustee in, and executed the marriage settle-
ment of the legatee, which recited that she
was entitled to the legacy. It was agreed that
it should be assigned upon trusts. There was
afterwards instituted against the executor, for
a breach of trust by the testator, a suit, which,
if successful, would exhaust the assets. “Held
[affirming the decision 8 I. C. R. 251. (R.)]
in a suit by ac. q. trust under the settlement,
that there had been an admission of assets
prima facie binding the executor, who was
ordered to lodge in Court the amount of the
legacy, without prejudice to his taking such
proceedings as he might be advised, to be re-
lieved against the admission of assets; there
was a decree against him in the other suit.—
[ESTOPPEL. ]

Semble—Under the circumstances the executor
was conclusively bound.—Chaigneau v. Bryan,
1OL.C. R.172; 51. Jur.N. 8.4. (C.A.)

1. In 1745, V. devised the lands of B. and
D., together with others, to W. for life, re-
mainder to his first and other sons in tail
male. In1793 W. suffered a recovery of these
lands, omitting B. and D.; and by contempo-
raneous post-nuptial settlement, W. having
recited that he was seized in fee of B. and D.,
together with other lands, conveyed them to
trustees for a term of years, with remainder
to his first and other sons in tail male. He
also covenanted for title with the trustees.
S., his eldest son, executed a disentailing deed
of B.and D. In 1841 the lands mentioned in
the settlement were ordered to be sold, by a
decree of the Court of Ch., and on the investi-
gation of title it was discovered that B. and
D. did not come under the trusts of the settle-
ment, and they were erased from the decree
for sale. In 1842, S., as heir-at-law and tenant
in tail, went into possession of B. and D., as
well as of the other unsold lands, and so con-
tinued up to his death in 1849, when he devised
all his lands to the appellant. F., a creditor,
having filed his bill to carry the trusts of 8.’s
will into execution, by consent of the appel-
lant a decree for the petitioner was made in
the usual form. On petition by the appellant
that the lands of B. and D. should be con-
veyed to him by the incumbrancers thereon,
free from all charges, on the ground that S.,
the testator, had elected to take B. and D.
under the settlement, and not under V.’s will;
Held, that independently of acts showing an
election to take under the settlement, the ap-
pellant was estopped by the report and decree
in 1852, in Newe v. Spread: that he had
waived his right to assert his claim to B. and
D. in that suit; that he had not brought him-
self within any of the cases in which a review
will be permitted; and that a decree in a suit
for administering the trusts of a will, if un-
objected to and unreviewed, is decisive as to
the seizure in fee of the testator, in the lands
devised.— Spread v. Morgan, 5 I. Jur. N.S. 45.
(C.A.)—[Revg. 9 I. C. R. 585; Dr. Rep. temp.
Napier, 525. (C.)] :

2. G., having obtained a bond and warrant
from O., entered judgment, and registered it
as a mortgage against his lands. At date of
bond, G. undertook not to call in the principal
so long as each gale of the interest was paid
in three months after it felldue. A gale fell
due; a few days after, G. consented to take a
bill at three months, accepted by O., in pay-
ment. This bill having become due; been
renewed on the same understanding ; and
eventually dishonoured, the amount was sent
by O, to G. in a cheque, and received by G.
Held, that G. did not on non-payment of the
renewed bill become free to demand his prin-
cipal.

That acceptance of payment as payment of
the gale in question estopped G. from suggest-
ing unpunctuality—ZJn re Jackson's Estate, 12
LC. R. 512. (L.E.C.)

 

317

3. By settlement in 1787, on the marriage
of E., lands held for lives renewable were
settled to the use of E. for life; remainder to
the use of the issue of the marriage, as EK.
should appoint; in default of appointment,
to them share and share alike; on failure of
issue, to E. absolutely. There were two child-
ren, F., and the petitioner, M. On the mar-
riage of F., in 1816, a settlement, to which E.
was a party, was executed, which recited the
limitation contained in the settlement of
1787; and that F. was entitled to one moiety
of the lands in that settlement, subject to the
life estate of E.; and put that moiety in strict
settlement. E., by this deed, did not exercise
his power of appointment, or convey the settled
lands.

In 1817, M. married, and a settlement was
executed on her marriage, in which E. joined,
using words sufficiently large to convey all his
interest in the lands comprised in the deed of
1787. Held, that whatever might be the true
construction of the deed of 1787, M., claiming
under E., would not be allowed to disappoint
the provisions of the deed of 1816.—Nunn v.
oa 13 I. C. R. 184; 71. Jur. N.S. 318.

4. S. purchased several denominations, in
the I. E. Court, as trustee for E. Before the
conveyance was executed, E. agreed to sell
them to S., in consideration of a bill of ex-
change for £10,000, and a mortgage upon
them. S. forged a conveyarice from the I. E.
Court, and executed for value a conveyance
to W., reciting the forged conveyance as
genuine. Afterwards the L. E. Court exe-
cuted a conveyance to §., reciting the pur-
chase-money to be E.’s. Held, that no in-
terest under the genuine deed passed by
estoppel to W., so as to give him priority to
E.’s demand; and that E. had alien for the
amount of the bill—Lyre v. Sadleir, 141 C.R.
119. (C.)—[Revd., 15 I. C. RB. 1. (C.A.)]

5. By marriage articles, A. covenanted
that if he should not have settled or devised
hereditaments to the value of £180 a-year to
the uses in those articles specified, £3000
should be raised out of his assets, to be held
upon trusts corresponding with those several
uses.

By deed, subsequently executed, he con-
veyed certain hereditaments, to be held, sub-
ject to certain prior trusts, “‘wpon the trusts in
said articles of agreement specified;” and sub-
ject thereto, upon further trusts therein men-
tioned. After his death, his two sons executed
joint mortgages of the hereditaments in ques-
tion. They implied that the entire interest in
the hereditaments was bound by the trusts of
the articles. Held, that the deed of trust had
not this effect; and that the mortgages did
not preclude the elder son (heir-at-law) from
giving to that deed its true construction.—Jn
re Clancy’s Estate, 14 I. C. R. 361; 9 I. Jur
N.S. 72. (L.E.C.) ,

6. In 1847, F. served a notice on G., calling
on him to take out a lease. G, omitted to do
so, but remained in possession, paying rent
318

under the agreement. There were some ne-
gotiations between the parties in 1854. Held,
that the original agreement was not surren-
dered, and that it might be enforced on a pe-
tition filed in 1862.

F., tenant of C. for a term of years, in 1844
agreed “to let unto G. the house and de-
mesne of C., in as large and ample a manner
as the same is now held by F., at the rent of
£48 per annum, for and during a term equal
to the term which F. has of the same, leaving
him full power of ejectment, and right of
distraint in case of non-payment of rent; G.
to have a power of surrender by giving six
months’ notice in writing.” Held, an agree-
ment for a sub-lease, not an assignment—
Palmer v. Spring, 14 1. C. R. 380. (C.)

 

ESTOVERS.
See TIMBER— WASTE.

 

EVASIVE ANSWER.
See Practicr, ANSWER.

 

EVIDENCE.

— To support fiat. See Bankruptcy, VI.

— In actions or suits by or against Assignees.
See BANKRUPTCY, X.

— On Appeal. See Pracricy, APPEAL.

_— Bacal See Practicn, EVIpENCE.

— Taken in other Courts. See ibid.

— Taken in another cause or matter.

— In Tithe Suits. See Trruss, VI.

— Of Modus. See TrrwEs, X.

— Of Marriage. See Marriace, IT.

— Of Title, presumption of. See Titre, VI.

— In Bankruptcy generally. See Bankruptcy,
XVII.

See ibid.

— See Huspanp aND WIFE—PRactTIce, Evi-
DENCE.

 

EXAMINATION.

— Of Witnesses in Bankruptcy. See Banx-
ruptcy, VII.

— Of Bankrupt. See Banxrvrtcy, VII.

— Generally. See Practicr, Evipence, 28.

— As to credit. See Practice, EVIDENCE.

— Pro interesse suo. See ibid.

— Of Parties to a cause. See ibid.

— Of Defendant on Interrogatories.
81 Vic., c. 44, s. 63.

See 30 &

 

EXAMINER.
See PracticE, EvIpENCE.

 

EXCEPTIONS.

— To Answer. See Practicr, ANSWER.

— Costs of. See Practice, Costs.

— Generally. See Practice, Exceptions.

— Billof. See Practices, Birt or Exceptions

— To Report. See PracticE, Master, Rerer-
ENCE TO.

 

[ESTOPPEL.—EXECUTION.]

EXCESSIVE.
— Execution of Power. See Powrr.

 

EXCHANGE OF ESTATES.
See Estates, XIV.

 

EXCHEQUER.
— See Courts, I—Jurispiction, II, IV—
PRactTIcE, passim.
Practice in Exchequer.—The Equity side of
the Court of Exchequer in Ireland was abo-
lished by the 13 & 14 Vie. c. 51.

 

EXCHEQUER BILLS.
See Statutes, Construction or, II.

 

EXCLUSIVE APPOINTMENT.
See Power, I.

 

EXECUTION.

— Of Deeds. See Dexps, XI.

— Of Powers. See Powers, I.

— Injunction to stay. See Practicy, Insunc-
TION.

—Of Sequestration.
TRATION.

—Of Settlement by Court.
VIII

— Of Trusts. See Trusts, XII.
— Of Will. See Wit, V.
See Destor & Crepiror—Banxrovrtcy, VIII.

1. R., a judgment creditor, having sued out
a fi. fa. in 1840, on which there was a return
of nulla bona (the debtor’s leasehold estate
being previously mortgaged), filed his bill on
the 16th of November 1840. W., a prior
judgment creditor, subsequently presented his
petition for a receiver. By an order in the
cause and matter, and also in the cause of the
prior mortgagee, a receiver was appointed.
The lands having been sold to pay the mort-
gage, R. and W. applied for the surplus fund.
Held, R. was entitled to it in priority to W.

The right acquired by the suing out of the
Ji. fa. was not lost on the return of the writ.

The right of the judgment creditor, before
the return of the writ, is but inchoate and in-
complete ; but, when on the return it appears
that his executor is frustrated by a legal im-
pediment, then the equitable remedy is called
into operation.—Simpson v. Taylor, 7 I. E. R.
182, (R.)

See Practice. SEQUES-

See SETTLEMENT,

1

2. A debtor, being entitled to an annuity,
found by a report in a minor matter to be
charged on the minor’s estate, the guardian
drew ‘a cheque in his favour, which he re-
tained in his hands, and which had not been
accepted in payment of the annuity. Held,
that the cheque could not be seized by the
Sheriff under a fi. fa. The Court refused to
order the guardian to pay over the money to
ik) Sheriff—Exz parte Smyth, 2 I. C, BR. 558
R.
[EXECUTION.—EXECUTORS, &c.]

1. The writ of fi. fa, sued out under a
decree or order of the Court by virtue of the
4&5 Vic. c. 105, s. 27, must correspond with
the decree or order. When a separate ji. fa.
against one issued on a joint order for pay-
ment of costs against several, the Court set
aside the writ as irregular, but without costs,
and paid back the money levied, on the party
undertaking not to bring an action in respect
of the seizure and sale by the Sheriff — Money-
penny v. De Massy, 11. C. R. 597. (R.)

2. D., a solicitor, on a summary petition
presented against him, had been ordered by
the M. R. to pay a sum, alleged to have been
lost through his misconduct. This order was
reversed on appeal. Shortly afterwards a
cause petition was presented, praying relief on
foot of the same transactions which had formed
the subject of the summary application ; and
on the 16th June 1854, the Court decreed
that D. should pay £400 to the petitioner.
On the 7th Jan. 1854, D. assigned some real
estate, certain sums due to him for costs, and
a policy of insurance on his own life, to his
son N., on trust, subject to the payment there-
out of certain scheduled creditors, for the
absolute benefit of N. The petitioner, on the
10th July 1854, registered the decretal order ;
issued a writ of ji. fa. under it against the
goods of D.; and filed a petition, praying that
the deed of 7th Jan. 1854 might be declared
fraudulent and void as against the petitioner.
Held, that the policy of insurance was not such
a “security for money” as could be seized by
the Sheriff under 3 & 4 Vic., c. 105, s. 20.

That the real estate not being affected by
the mere registration of the decree, and the
choses in action not being capable of seizure
under the ji. fa., no occasion appeared for the
interference of this Court in aid of the execu-
tion, assuming that the petitioner’s redress
was to be sought in this Court, and not ina
Court of Law.

And that no sequestration having been
issued, the fact of the execution being from
this Court made no difference in the jurisdic-
tion.— Alleyne v. Darcy, 51. C. R. 56. (C.)

8. The defendant in an execution was the
registered proprietor of shares ina ship. A
Jji. fa. was delivered to the Sheriff, by whose
directions the solicitor for the creditor pro-
cured the certificate of registry from the ship
and delivered it to the Sheriff, who retained
it. The Sheriff was registered, under the
Merchant Shipping Act, as owner of theshares,
which he sold, and transferred to the pur-
chaser by a bill of sale which was registered.
Held, that the seizure was effectual, although
the Sheriff did not go on board the ship; and
that the property in the shares was regularly
transferred by the bill of sale-—Harley v. H.,
111.C.R.451. (R.)

 

EXECUTORS AND ADMINISTRATORS,
AND TRUSTEE.
See Executors, IX.

— Undue advantages taken, or Purchases made, by.
See Fraup, VII.

 

319

— Interest payable by. See IntEREst, Pzcu-
niary, I.

— Costs of. See Practice, Costs.

— Payment into Court by. See PAYMENT INTO
Court.

— Appointment of Receiver over. See PRactTIcE,

RECEIVER.

See ADMINISTRATORS AND ADMINISTRATION—
APPROPRIATION—-PLEADING, ParTIES—
Practice, DecrEE—Sratures, Con-
STRUCTION oF, II.

 

I. APPOINTMENT OF.
. Wuen Depror 1s MADE ExEcuror.

III. Renunciation anD ACCEPTANCE OF TRUST
BY.

Tueir Ricuts anD Powers.

1. Generally, and Legacies, §c., to—Pur-
chases of Estate by.

2. Survivorship between.

3. Their Right to retain for Debts.

4. Their mutual Rights, §c.

5. What acts executors may do before Pro-
bate granted.

IV.

 

. THEIR Duties,
VI. Tuerr Liss ivities.

1. Generally and personally.

a. In general.

b. Personally.

c. Of Co-executors in respect of each
others acts.

d. Retaining balances in hand—Using
their Testator’s money—Re-
specting investment.

2. Devastavit.
3. Executor de son tort.
4. Their accounts. ‘
a. Generally.
b. Allowances to.

 

VII. WHEN THEY ARE BENEFICIALLY INTE-
RESTED IN THE RESIDUE.

1, When they are so entitled.
2. When they are only Trustees for Next-of-
kin, &e.

VIII. Assent By.
IX. WHEN THEY ARE TRUSTEES ALSO.
X. Or THE Assets.

1. When real or personal.

2. Whether legal or equitable.
3. Marshalling of.

4. Admission of.

5. Following of.

*

 

 

XI. ADMINISTRATION OF ASSETS.

1. Generally.

2. Who take.

3 As between Heir and Executor, whether
the assets are real or personal. Of
Conversion.

a. In general. Of Conversion.

b. Real: belonging to Heir.

c. Personal: passing to Executor,
Administrator, or Next-of-kin.
320

4, Debts.
a. What debts are payable by or to.
b. From what fund debts are payable.
— Of Appropriation to pay Debts.
1.

In general.

2. Personal estate: rts exemp-
tion.

3. Real estate, devised or de-
scended. :

4, Devises, bequests, charges, or
other appropriation of
Sunds for payment of debts.
5. Mortgage debts, §c., their
payment, Sc.
c. Debts and legacies: order of pay-
ing them.

 

AND ADMINISTRATORS, GE-

XII. Executors
: NERALLY.

 

I. APPOINTMENT OF.

1. J., executor of R., died, leaving unadmi-
nistered part of A.’s assets, which came to
W., as J.’s executor—Held, that J.’s_ proper
assets were exonerated, and not liable for
W.’s default respecting R.’s assets.— Oldham
v. Wilkins, 1 I. BE. R. 59. (R.)

 

II. Wuen Desror 1s MADE ExEcuroR.

 

III. AccErTaNcE AND RENUNCIATION OF TRUST
By ExEecutors.

2. When, upon the renunciation of a sole ex-
ecutor, administration cum test. an. is granted,
the renouncing executor is not a necessary
party.—Houston v. O’Connor, H. & J. 718.
(E.E.)

3. A co-executor, who had not proved, after
the death of him who proved, gave a power of
attorney to sell a small part of the testator’s
assets, which was not acted on, and had not
further intermeddled—Held, a sufficient elec-
tion to accept the office of executor, so that
he could not afterwards renounce.— Cummins
vy. 0,81. E.R. 723; 3 Jon. &L. 64. (C.)

4, If two executors have a power of sale,
and one of them renounces, the power cannot
be exercised by the other.— Thompson v. Todd,
15 1. C. R. 337. (R.)

 

IV. Rieguts anp Powers or EXECUTORS AND
ADMINISTRATORS.

1. Generally; Legacies, §c., to:
chases of estate by.

2. Survivorship between.

3. Their right to retain debts.

4, Thar mutual rights, &c.

5. What acts they may do before probate,
&c., granted.

Pur-

 

IV. 1. Rights and Powers of Executors and
Administrators: generally: Legacies,

§c., to: Purchases of estate by.
5. The executors of a solicitor instituted a
suit to raise the amount of judgments given:
for untaxed bills of costs; and were held en-

Acceptance, §c., by. [EXECUTORS, &c.]

 

e
Their Rights, &c.

titled to the costs of the suit, because of
dealings which the conuzor and the conuzor’s
devisee had with the conuzee, though more
than one-sixth was struck off one of the bills,
and though the deft. had offered to submit
the matters in dispute to arbitration, and to
pay whatever might be found due after the
bills of costs had been taxed, and all proper
credits allowed.—Humfrey v. Gurley, 1 Dr. &
Wal. 183. (C.)

6. A bill prayed an account on foot of two
bills of exchange, accepted by J., deceased,
and due and unpaid at his death; and of the
costs and expenses incurred by ptf. as J.’s ad-
ministrator down to the revocation of the grant
of the administration; and that the amount
of bills due to ptf. as creditor of J., and of
ptf.’s expenses as administrator, might be
paid out of J.’s personal estate. J. had not
any realty. The expenses consisted nearly
altogether of ptf.’s costs in a cause instituted
by him as administrator in 1838 for discovery
of assets, which, after publication passed and
issue joined, was frustrated by the present
defts. (defts. in that suit also), who, being J.’s
next-of-kin, and in possession of his assets, to
avoid a decree, lodged in the Prerogative
Court J.’s will, which they had previously
suppressed, and procured a revocation of the
grant of administration to the ptf., and a new
grant to themselves c. t. a. As to the bills,
they now pleaded the Statute of Lim., and
demurred generally to that part of the bill
which sought an account, &e., of ptf.’s ex-
penses and costs as administrator. Held, that
the plea should be allowed, since ptf. did not
appear to have been under disability, and
had not proceeded for his demand within six
years after the right of action accrued. That
the demurrer should be overruled, since the
ptf.’s costs were incurred not merely in his
private right as ptf. in another suit, but
as administrator; and that he was entitled
to be paid out of the personalty the of-
ficial expenses properly incurred, since the
grant of administration, though voidable, was
not void, and conferred on him during its
continuance the rights of a lawful administra-
tor. That ptf. was entitled to the costs of the
hearing, since the demurrer was overruled.—
Howlett v. Lambert, 21. E. R. 254. (R.)

7. An executor bought up, from several
legatees, their legacies, at a reduction. Held,
that the transaction could not be sustained.
—Barton v. Hassard, 3 Dr. & War. 461. (C.)

8. On the marriage of W. with A. the
plaintiff, 1 mortgage term and £6000 secured
thereby were assigned to trustees for W. for
life, remainder to provide a jointure of £300
per annum for A.; remainder for the first son
of the marriage who should attain age. C.
was the first son of the marriage who attained
age. W.died. C. became indebted by judg-
ments to A. A.’s jointure and the interest
on her judgments were regularly paid down to
1846. C. bequeathed all his money and secu-
rities for money to V., and constituted him
sole executor. C. died in 1834. V. bequeathed
Right to

his interest in the mortgage to his children,
in various shares; £1200, part of it, to his
daughter A. W., and a like sum to his son
E. W., and constituted S. sole executrix.
V. died in 1846, and S. proved his will. By
deed made in 1850, between A. W. of the first
part, S. of the second part, and G. of the third
part, A. W. and §., in her own right, as repre-
sentative of C. and V., assigned to G., for
a valuable consideration, £800, part of A.
W.’s portion of the mortgage. 5S. assented to
the legacy to E. W., and by deed of 1849,
made between E. W. and F., E. W., for a
valuable consideration, assigned his portion
of the mortgage to F. A. filed a creditor’s
bill against 8., praying an administration of
the estate of C.and V. Held, that A.’s judg-
ments were not charges upon the bequeathed
portions of the mortgage in priority to the
claims of G. and F. That the lapse of time
prior to the death of C. prevented A. from
following his assets into the hands of a pur-
chaser for a valuable consideration; and that
the assignment by the specific legatee of the
legatee, with the assent of the executrix of
the first legatee, and the executor of the
debtor, barred the claim of the plaintiff—
Ward v. W.,41.C. R. 215. (C.)—[See Ward
v. W., 101. C. R. 465. (C.)]

1. Right of executrix’s husband, out of the
jurisdiction, to execute an assignment, vested
in another person, under the Trustee Relief
Act1850 (13 & 14 Vic., c. 60), s. 22.-In re Trusts
of Tisdall’s Will, 71. Jur. N. 8. 139. (R.)

2. A., tenant for life of real estate, be-
queathed the residue of his real and personal
estate, and all rent and arrears of rent which
might be due to him at his decease, and all
timber, &c., he might be entitled to, upon
trust to sell and convert into money, get in
and recover, so much thereof as should not
consist of ready money; and declared trusts
thereof. <A. then authorised the executors of
his will, of whom the trustee was one, to com-
promise and compound and submit to arbitra-
tion and settle all debts owing to him, and
generally to act in relation to the premises as
they should think expedient, without being
liable to any loss which might be occasioned
thereby. Held, that the will did not authorise
the trustee or executors to sell the arrears of
rent to the remainderman.—Zn re Alexanders
Minors, 13 I. C. R. 187; 7 I. Jur. N. 8. 9.
(C.A.)—[Affirming decision below, 12 I. C. R.
1 (RJ

¢

8. There is not any Irish statute corres-
ponding to the 21 H. 8, c. 4 (Eng.). There-
fore, if two executors have a power to sell
real estates, and one of them renounces, the
power cannot be exercised by the other.—
Thompson v. Todd, 15 I. C. R. 887. (R.)

 

IV. 2. Survivorship between.

 

IV. 8. Their right to retain for debts.

4, When a legatee,. admittedly entitled to a
fund under the will, claims more, and threatens

[EXECUTORS, &c.]

 

Retain for Debts. 321
a suit to enforce payment, the executors are
entitled to retain that fund to meet the costs
of the suit.—Ridge v. Newton, 4 I. E. R. 389;
2 Dr. & War. 239; 1 Con. & L. 381. (C.)

5. V., tenant in fee, borrowed money, to
secure payment whereof with interest he con-
fessed a judgment in double the amount; put
his creditor, C., into receipt of a f. f. rent,
equal in amount to the yearly interest; and
afterwards devised all his estates to A. for
life, remainder to B. for life; remainder to
B.’s first and other sons in tail. A. died in
1802, the full amount of the judgment being
then due to C., who had not been paid inte-
rest since 1786. B. died in 1824, never having
received any part of the f. f. rent, of which,
however, his executors were paid 21 years’
and six months’ arrears; but in 1824, B. paid
off the judgment, and took an assignment
thereof to a trustee for himself. Held, that his
executors might not retain, as against the
remainderman, the arrears of the f. f. rent
received by them, and leave the arrears of in-
terest a charge on the estate, particularly as
B. in 1803 and 1821 became a party to family
settlements in which the estate was dealt with
as if the f. f. rent had been applied to pay the
interest, and the benefits were given him by
those settlements.— Caulfield v. Maguire, 8 I.
E. R. 164; 2 Jon. & L141. (C.)

6. To a legatee’s bill the executor admitted
assets sufficient to pay the legacies, but relied
on his right to retain them as an indemnity
for the contingent liability on the testator’s
covenants, and did not set out the amount of
the assets. Held, that the answer was insuf-
ficient ; that the executor was bound to set
out the amount of the assets. — M‘Auley v.
M‘A., 91. E.R. 142. (BR)

7. A debtor wrote to X. a letter, which was
not to be opened till his death, and was to be
considered as his will, in which he directed X.
and other creditors named to be paid as soon
as’ X. could get funds in hands. Held, that
demands by judgment and simple contract,
more than twenty years old at the debtor’s
death, were saved from the Statute of Limita-
tions.

Executors or administrators may retain for
debts barred by the Statute of Limitations,
though it is set up by the legatees or next-of-
kin.— Clinton v. Brophy, 10 1. E. R. 189. (C.)

8. The rule at law, that where the obligee
in a bond becomes executor of the obligor,
and receives assets adequate to discharge the
debt, it is extinguished, is also the rule at law
where one only of two obligees is appointed
one of several executors of the obligor.

The same rules prevail in Equity.

This is so, albeit that the obligees are
trustees.

A father on the marriage of one of his
daughters, entered into a bond to A. and B.,
conditioned for payment of £4000; and on the
marriage of another of his daughters entered
into a bond to A. and C., conditioned for pay-
ment of £4000, and was a party to the mar-

4]
322 Their Rights
riage settlements of both ee whereby
the sums secured by the bonds were limited
upon trusts; and by his will, directing his
debts to be paid, and reciting the acknow-
ledgment of the bonds, devised lands to A.,
and other lands to D., and bequeathed lega-
cies to both of his daughters, to be paid out
of his personal estate if sufficient, but if
not sufficient, out of the devised lands, and
appointed A. and two other persons to be his
executors, and died; and more than sufficient
assets for payment of all his debts and lega-
cies reached the hands of A. Held, that
whether A. had or had not committed a de-
vastavit, the c. q. trustent had not any equity
to raise the amount of the bond debts out of
the lands devised to D., although D. had per-
sonally instituted a suit against A. for indem-
nification of the lands devised to D. against
those bond debts. To that suit the c. ¢
trustent were not parties.—Richards v. Molony,
21.C. Rt. (C.)—[Overruled, Zn re Carew,
41.C.R.112. (P.C.)]

 

IV. 4. Their mutual Rights, Sc.

1. A co-executor, who had not proved, after
the death of the other executor, who had
proved, gave a power of attorney to sell part
of the assets, but which was not acted on—
Held, that that was a sufficient election to
accept the office of executor, and that he
could not afterwards renounce.

Probate to one of several executors vests
the property in all, so that on the death of
him who proves, the survivor represents the
deceased for all purposes, without further pro-
bate and without further acceptance of the
office. — Cummins v. C., 81. E. R. 723; 3 Jon.
& L. 64. (C.)

2. An executor, who joins in taking out
probate, but does not act, is liable for the
acts of and for the moneys lost by his co-execu-
tor.—Scully v. Delany, 2 I. E. R. 165. (C.)

8. A testatrix named A. a trustee of part
of her personal estate, and appointed him, her
son, and B., executors ; her son and B. alone
proved the will, but A. did not disclaim, A.
afterwards acted as agent to the executors,
who proved over the property bequeathed. B.
got possession of the assets, and made devas-
tavit. Held, that A. and his executors were
liable-—Montgomery v. Johnson, 11 I. E. R.
476. (C.)

4, When an executor does acts which create
in the minds of the legatees the idea that he
aecepts the office, he must account for assets
wasted by his co-executor.— Bowen v. Lindsay,
51. Jur. 129. (C.)

5. If two executors have a power of sale,
and one of them renounces, the power cannot
be exercised by the other.— Thompson v. Todd,
15 1. C. R. 387. (R.)

 

IV. 5. What acts Executors may do before Pro-
bate granted.

 

[EXECUTORS, &c.]

 

and Duties

V. Tuer Duties.

6. In a creditor’s suit, the Court will not
direct the personal representative how to act
with reference to the debtor’s outstanding
personal estate.—Jameson vy. Farrer, 2 Jon.
634. (E.E.)

7. A suit was instituted against A. and B.,
devisees of two incumbered estates, in which
a larger portion of the incumbrances was
paid out of A.’s estate than it was properly
liable to. The decree directed specfal ac-
counts, which were prosecuted to a draft
report, finding £13,000 due to A. out of B.’s
estate. A. made his will, and reciting this
draft report, bequeathed an interest in the
£13,000 to the plaintiffs, and more to his
executor. The plaintiffs filed a bill against
B., and those claiming through him, and
against the executor of <A., praying the
benefit of the former decree, and to prosecute
the special accounts, and be paid their legacy.
Held, that neither the specitic nature of the
legacy, nor the character of the debt, consti-
tuted any special case for taking the suit out
of the common rule that a debtor to the
estate cannot be sued by a legatee ; and that
the suit being to carry out a former decree,
did not remove, but rather increased, the
objection.

Neither the insolvency of the executor, if
before his appointment as executor, nor his
embarrassments, if removed before the com-
mencement of the suit, nor the circumstance
of the debtor’s evading process, and its being
difficult to recover from him, if the executor
has not refused to sue him, are grounds to
warrant a legatee in suing a debtor to the
estate.— Wright v. Hamilton, 9 I. E. R. 119; 3
Jon. & L. 465. (C.)

8. An executor lodged in Court the amount
of a charitable legacy, and presented a peti-
tion praying a reference to obtain the Master's
approval of ascheme. Held, that the petition
ought to be entitled under the 52 G. 3, c. 101,
and ought to be sent to the Att.-General.—
In re the Trusts of Kelly's Will, 71. Jur. N.S.
273. (R.)

 

VI. Tuerr Liairities.

1. Generally and personally.
a. In general.
b. Personally.
vc. Of Co-executors in respect of each
other’s acts.
d. Retaining balances ; using Testa-
tor’s money ; Investment.
2. Devastavit.
3. Executor de son tort.
4. Their accounts.
a. Generally.
b. Allowances to.

 

VL 1. a. Their Liabilities generally.
9. An executor, filing a bill against his tes-
tator’s agents, is liable for the balance and
costs only to the amount of assets; the insti-
. Their Liabilities,

tution of the suit not being an admission of
assets.

An executor’s submission to arbitration is
not per se an admission of assets.—Mocher v.
Frazer and Reed, Beat. Rep. 578. (C.)

1. A bill by « landlord for an account of
waste, committed by a tenant in cutting tim-
ber, lies against his executors. The waste
having been committed during 50 years of the
tenant’s life, the bill was not filed until a few
years after his death. The account was re-
fused touching all the waste done in the
tenant’s life; but was granted, with an in-
junction, touching waste committed by the
executors.— The Fishmongers’ Co. v. Beresford,
Beat. Rep. 607. (C.)

2. A legatee, for 13 .years after attaining
age, did not object to the executors’ several
dealings with the testator’s (her father’s)
assets, she not having been fully apprised of
her rights. Held, that this delay did not
amount to a release, or bar her right to relief.
O'Neill v. Hamill, Beat. Rep. 618. (C.)

3. A trustee of leasehold and of stock ap-
pointed A. and B. his executors, and died.
They obtained probate, but never acted in the
trusts. On their refusal to act, the Court
appointed new trustees under the 1 W. 4, c.
60, s. 22; the executors undertaking to replace
the amount of a breach of trust committed by
their testator upon the trust fund.—J/uley v.
Smith, Long & T. 241; 31. E.R. 497, (E.E.)

4, The defendant in the original suit, after
a decree that she should lodge in Court a cer-
tain sum when ascertained by the Master,
died. The suit was revived against her exe-
cutors, who admitted assets by their answer,
and the amount of the sum was ascertained
by the report. Upon motion by the plaintiffs,
the executors were compelled to bring in the
money, without waiting until the cause should
be heard.—Mackinnon v. Palmer, 7 1. E. R.
74, (R.)

5. A. bequeathed his personal property to
his younger children, and appointed B. his
executor, and C. their guardian. B. paid a
large portion of the estate to the guardian,
who appropriated it to his own use, and died
insolvent. On bill filed against the execu-
tor—Held, that the payments by the exe-
cutor were not wrongful, the guardian being
entitled under the 14 & 15 Car. 2, c 19,
fr., to the custody of the infant’s estate.
M'Creight v. M‘C.,, 21. Jur. 17; 131. E. RB.
314. (C.)

6. P., by will, executed in Bath in 1818,
gave £1000, in trust, to be placed out at in-
terest of £5 or £6 per cent., and the interest
paid to M. for life; remainder to M.’s daugh-
ters. In 1823, P.’s executors invested £1000
Irish in government stock to meet the legacy.
M. received the dividends on the stock with-
out complaint up to 1854. Held, that.admit-
ting the devise to be of £1000 British, the
personal representatives of M. had no right

 

[EXECUTORS, &c.] General & Personal. 323

to charge the representatives of P. with the
difference between the dividends paid and the
dividends on £1000 British invested in stock,
or invested at £5 or £6 per cent.—/Tamilton v.
H., 71. C. R. 516; Dr. Rep. temp. Napier,
217. (C.)

7. A. having no government or railway
stock, but having stock-in-trade, which he
specifically bequeathed—farming stock, fur-
niture, plate, and a small quantity of wine,
&e., directed, by his will, that his wife should
have the use of all his furniture, stock, and
house-linen, and the use of his plate until his
son, B., should have attained age. Held, that
the farming stock passed by the bequest.

Two persons carried on business in partner-
ship; one died, having bequeathed his stock-
in-trade. Semble—That his executor was
chargeable with a moiety of the value of the
stock-in-trade at the time of his death.

A. held lands from B. under an agreement
for a lease, at a rent of £54. A receiver was
appointed over B.’s interest, and the rent was
abated by the Court to £33. <A. died, having
appointed C. executor and guardian of his
children. B.’s interest was sold in the I. E.
Court, and purchased by C. The rental and
conveyance referred to the agreement, but
stated that the lands were held at the abated
rent (£33). Held, in a suit to administer A.’s
estate, that C.’s executrix was entitled to
credit for the abated rent only.— Creagh v. C.,
13 I. C. R. 28. (R.)—[Affd., ibid, 504; 7 I.
Jur. N. 8. 406. (C.A.)]

8. Bequest of “ £1000 in the £34 per cent.
Irish stock” to A.; if she died without child-
ren, over. The executor did not appropriate
stock to answer the legacy. Held, that this
was a general legacy of so much money as
would have purchased £1000 stock at the
death of the testatrix. That the executor was
liable to pay A. interest at £5 per cent. on
that sum from the period of one year after the
death of the testatrix.—O’ Mahony v. Burdett,
131. C. R. 68. (R.)

9. Executors are not relieved from the con-
sequences of a breach of trust, by presenting
a petition under the 13 & 14 Vic., c. 89, s. 11.

A special case should be framed thus:—A
statement of the facts, followed by a series of
interrogatories signed by a counsel on each
side —Zn re Trusts of Guinness’s Will, 8 I. Jur.
N.S. 24. (R.)

 

VI. 1. b. Their Personal Liability.

10. An executor purchased up the legacies
of several legatees for sums of money less-in
amount than their respective legacies. Held,
that this transaction could not be sustained.
Barton v. Hassard, 3 Dr. & War. 461. (C.)

11. Plaintiff, beneficially interested with
others in an annuity or rentcharge issuing
out of land, and secured by the grantor’s
covenant, joined in a suit against the pur-
chaser (to whom the lands were conveyed
expressly subject to the annuity), to recover
324 Personal

the arrears; and recovered six years’ arrears,
more being due. Ptf. then, in order to be-
come deft. in an action at Law on the cove-
nant, obtained administration to the grantor.
In that action judgment, by default, for the
arrears beyond the six years, was obtained ;
damages and costs to be levied de bonis testa-
toris, et si non, the costs, de bonis propriis.
The plaintiff then filed against the purchaser
a bill to be indemnified against the judgment.
Held, that her right to institute the suit de-
pended upon the existence of damage which
she had sustained or might sustain by the
judgment; and that, therefore, she was bound
to show that there were assets out of which
the judgment might be levied.

Quere—Whether plaintiff would be entitled
to relief upon proving the existence of assets,
she having become administratrix for the spe-
cial purpose of raising the case of damage
complained of by the bill ?—Byrne v. Duignan,
91. E.R. 295; 3 Jon. &L. 116. (C.)

1. If A, executor and residuary legatee,
promises to pay legacies directed by the testa-
tor to be paid, and consequently omitted from
the will, the undertaking will be enforced in
Equity ; and A. declared a trustee for the le-
gatees.—Shany v. Garty, 21. Jur. 137. (C.)

2. Suit by husband and wife to recover ba-
lance of a legacy to the wife. One defendant,
the sole executor, allowed the bill to be taken
pro confesso against him. The cause was heard
upon the pleadings, proofs, and order pro con-
fesso. The bill stated that the testator’s per-
sonal estate and effects had come into the
executor’s possession. He did not controvert
that statement by answer.

A personal decree against him was made.

The other defendant, entitled to the resi-
duary estates, demurred, alleging that he was
not a necessary party.

As against him the bill was dismissed, his
costs to be eventually paid by the co-defend-
ant.—Brooke v. Stewart und Wade, 2 I. Jur.
211. (C.)

8. A cause petition under the Court of Ch.
Reg. Act., presented by a legatee, charged
that the respondent, the executor, had assets
in his hands sufficient to pay all the debts and
legacies. An order of reference had been
made under the 15th sec., and notice of it
served on the executor, who did not appear
in the Master’s office. Held, that a personal
decree might be pronounced against him.—
The effect of such a decree is to prevent an-
other legatee from filing a charge under the
order of reference, and render necessary the
presentation of a petition by him to enforce
his demand.— O’Brien v. Westropp, 1 I. C. R.
871; 31. Jur. 867. (C.)

4, The general rule is, that though there be
a decree for the administration of assets, a
creditor of the testator or intestate will not
be restrained by injunction from proceeding
at law to make the personal representative
liable de bonis propriis. But where a legatee,

(EXECUTORS, é&c.]

 

Liability

who has proved in the Master’s office under
the decree, brings an action at law against
the executor for the legacy, the Court will
enjoin him, though the judgment in the ac-
tion should be de bonis propriis; for the Court
by its decree has taken upon itself to decide
upon the question of assets, without which
the plaintiff at law cannot recover; and will
not permit that question to be tried at law.

To make an executor liable at law fora
legacy de bonis propriis, there must be an ex-
press promise in writing, and assets or some
other consideration.

Semble—On the plaint for a legacy, against
the defendant as executor, and not averring
that the defendant promised in writing to pay
the legacy, the judgment should be de bonis
testatoris.—Molyneux v. Scott, 3 I. C. R. 291.
R.)

5. An executor lent a sum of £4100 of tes-
tator’s assets, on the security of a property
worth at the time between £60,000 and
£70,000; and incumbered to the amount of
£27,000. The solicitor for the borrower was
also employed for the executor. No opinion
of counsel was taken on the title, nor any
searches made, as these measures had been
taken on two occasions, within seven years,
on other loans. The security having turned
out defective in value, the executor was de-
creed to bring in the money.

Observations on the impropriety of the
same solicitor being employed for lender and
borrower in loan transactions.—Waring v.
W., 31. C. R. 331; 5 I. Jur. 85. (C.)

6. An executor, believing that there would
be assets sufficient to pay a legacy, became
trustee in and executed the marriage settle-
ment of the legatee, which recited that she
was entitled to the legacy. It was agreed that
it should be assigned upon trusts. There was
afterwards instituted against the executor for
a breach of trust by the testator, a suit which,
if successful, would exhaust the assets. Held,
in a suit by the c. g. trust under the settle-
ment, that there had been an admission of
assets prima facie binding the executor, who
was ordered to lodge in Court the amount of
the legacy, without prejudice to his taking
such proceedings as he might be advised to
be relieved against the admission of assets, if
a decree was pronounced against him in the
other suit.

Semble—Under the circumstances, the exe-
cutor was conclusively bound.—Chaigneau v.
Bryan, 8 I. C. R. 251. (R.)—[Affd., Chazg-
neau v. Bryan, 101. C. R. 172; 5 I. Jur. N.S.
4. (C.A.)]

7, Executors, in passing their residuary ac-
count, erroneously stated the degrees of rela-
tionship of the legatees to the testator; conse-
quently a large sum was paid to the Crown
for legacy duty in excess of that properly
chargeable. The liability for the principal
being admitted—Held, that the executors were
also chargeable with interest.

The executors, by their answer, submitted
Liability for Co-executor. [EXECUTORS, &c.]

that they were not liable for interest, and the
decree upon the first hearing was silent upon
the subject.

Held, that the charge for interest could
properly be made on further directions.—
Shaw v. Turbett, 13 I. C. R. 324. (C.)—[Affd.,
141. C. R. 476. (C.A.)]

VI. 1. ¢. Lnability for acts of Co-executor.

1. An executor, who joins in taking out
probate, but does not act, is liable for- the
acts, and for moneys lost by the wilful default
of his co-executor.

When a person is clothed with the character
of trustee, the cestuis que trustent shall not be
affected by his acts, except so far as they knew
and acquiesced in them.—Scully v. Delany, 2
LE. R. 165. (C.)

2. A testatrix named A. a trustee of part
of her personal estate, and appointed him,
her son, and X.’s husband, executors. The
son and X.’s husband alone proved the will,
but A. did not disclaim. The son and X.
took life interests in the trust fund, to a

- part of which the plaintiff became, by X.’s
appointment, entitled. A. had been the tes-
tator’s agent, and acted in the management
of the assets under powers of attorney from
the executors who proved, and X., and, after
the son’s death, from the surviving executor
and X., which authorised him to receive the
assets for the uses and purposes of the will.
On A.’s death, the defendant, his son and
executor, acted under a similar power, and
continued to do so after the death of X.’s hus-
band. X. and her husband got possession of
the entire assets. Held, that A. and the de-
fendant were responsible as trustees, and
could not protect themselves as being agents
only.— Montgomery v. Johnson, 11 I. E. R. 476.

(C.)

8. Where an executor does acts which
create in the minds of the legatees the idea
that he accepts the office, he must account for
assets wasted by his co-executor.

One who gets into his possession trust
money, which he knows to be such, becomes
a trustee, and must account for it.—Bowen v.
Lindsay, 5 I. Jur. 129. (C.)

4. A., liable under a covenant to B.and C.,
bequeathed legacies, and appointed E. and C.
his executors, who both proved the will. B.
died leaving C. surviving. C. died, having
bequeathed legacies, and appointed E. exe-
cutor. A suit was instituted against E., and
a final decree made, to administer the assets
of C. No claim was made in that suit on
foot of the covenant. A suit against E.
alone, for an account of the assets of A., by
the parties claiming the money secured by
the covenant, was dismissed; without pre-
judice to their proceeding against the legatees
of C.—Clarke v. Pope, 13 I. C. R. 91. (R.)

 

 

Devastavit. 325

VI. 1. d. Retaining balances : using testator’s
money: Investment.

5. The 204th Rule does not take away the
Court’s discretion respecting the rate of in-
terest to be charged upon balances in the
hands of executors, &c.—Cuffe v. C., 3 I. E.
R. 469. (C.)

6. An executor bona fide invested part of
the assets in bank stock. ¢Held, not answer-
able for any loss beyond that occasioned by
his buying bank stock, instead of £34 per
cent. government stock.— Hynes v. Redington,
71. E. RB. 405; 1 Jon. & L. 589. (C.)

7. Under a decree to account against exe-
cutors, the Master had charged them with
funds and with balances, from time to time,
in their hands, but had not charged interest
on the balances; and had given credit for
payments on account of interest on legacies
bequeathed by their testator. By a sub-
sequent decree it was referred back to the
Master to ascertain the balances, from time
to time, in the hands of the executors, and
charge them with interest on those balances.
Held, that the Master was not merely to
charge simple interest on the balances before
ascertained, but was to take a new account of
the balances ; and for that purpose to bring,
from time to time into the account the interest
on the balances, and to apply such interest in
discharge of the disbursements made by the
executors, before any of such disbursements
were to be deemed so paid, out of the sum
found due from them on the previous ba-
lance.—ZJrwin v. Knox, 8 I. C. R. 503. (C.)

VI. 2. Devastavit.

8. An executor who invested part of his
testator’s assets in bank stock, instead of
government stock, was held, not accountable
for the entire loss thereby occasioned; but
only for the difference between the actual
loss and the loss which would have been
sustained had the money been invested in
government stock.—Hynes v. Reddington, 7
I.E. R. 405; 1 Jon. & L. 589. (C.)

9. A party having obtained probate to a
will, which was afterwards cancelled, on the
ground that the alleged will was a forgery,
and under that probate possessed himself of
personal property of the deceased; on ad-
ministration obtained by another party, and
bill filed against the executor for an account
and payment of the personal property of the
deceased, in his answer the defendant ad-
mitted having received certain moneys, but
alleged that he had paid them away under
the provisions of the will. An application
by the administrator, on motion, that the de-
fendant should pay into Court those sums
admitted by him to be received, and alleged
to be improperly paid away, was refused.—
Auld v. Stewart, 81. E. R. 399. (E.E.)

10. An administrator, whose accounts as
put forward by his answer were completely
326 Devastavit

falsified, was decreed to pay the whole costs
of the suit.—Orr v. Milliken, 1 I. Jur. 217.

(C.)

1, The plaintiff A. was solicitor for D., who
at his death was indebted to A. for costs. On
D.’s death A. became solicitor for his executor,
the defendant, who being indebted to A. for
the costs of D., and further costs as executor,
handed him the title deeds of leasehold pre-
mises of D., which had been left on special
trust, together with a letter making an equi-
table mortgage. There were funds applicable
to the costs which were misapplied. Held,
that the executor having committed a breach
of trust in mortgaging, the solicitor dealing
with him was affected by it, and could not
recover without an inquiry as to the state of
the assets.

Semble—that A. was in no better condition
than the executor himself would be.

After a decree to account a minor defendant
attained age. On arehearing at his applica-
tion, new inquiries were directed, though there
was no new answer filed; and the minor, after
coming of age had contested the case under
the former decree.—Purcell v. Ruckley, 121. E.
R. 55. (C.)

2. The Statute of Limitations is u good
defence on general demurrer. A devastavit
by an administrator only creates a simple
contract debt to the next-of-kin.

The right of simple contract creditors to
proceed against real estates, devised by the
debtor under the statute 3 & 4 W. 4, c. 100,
is barred by the Statute of Limitations in six
years from the death of the debtor.—Dunne v.
Doran, 13 1. E. R. 545. (E.E.)

8. In 1811, T. executed a bond, in which his
heirs were not bound, and on which he paid
interest until his death in 1520. T., by will,
left all his property to H., and directed that
all his just debts, legacies and funeral expenses
should be paid by H., whom he appointed exe-
cutor. H. proved the will; and aliened the
lands in 1821. He paid interest on the bond
until he died in 1843. The parties claiming
under the deed of 1821 paid interest up to
1849, under a mistake of their liability. A
cause petition was filed in 1853, to recover the
amount of the bond. Held—(following Dunne
v. Doran, 13 I. E. R. 545, by which the Court
considered itself bound, although dissenting
therefrom)—that the claim against H., being
founded on a devastavit, was a simple con-
tract, and as such barred by the Statute of
Limitations, 10 Car. 1, sess. 2, c. 6, s. 3, Ir.

Semble—the debt was not founded on a lend-
ing or contract, and therefore not within the
statute.

The payment of interest by the. parties
claiming under the deed 1821, was not bind-
ing on the executor of H.—Brereton v. Hutchin-
son, 21. C. R. 648. (R.)

4, An obligor in a bond, with notice of the
trust, appointed one of two obligees (who were
trustees) his executor, and devised his real
estate to him, subject to his debts. The exe-

(EXECUTORS, &c.]

 

by them.

cutor received personal assets sufficient to pay
the bond debt, but wasted them. Held, that
the debt was not extinguished, and might be
enforced against the real estate of the debtor.
[Richards v. Molony, 2 I. C. R. 1, overruled.]—
In re Carew, 41. C. R. 112. (P.C.)

5. An administrator cum test. an., being in
possession of premises which the testator held
as tenant from year to year under C., took a
lease from D. the head landlord, to commence
from the expiration of C.’s lease. Held, that
the lease was a graft on the testator’s interest,
and formed part of his assets.—M‘Auley v.
Clarendon, 8 I. C. R. 568; Dr. Rep. temp. Napier,
433. (C.A.)—[Approved of: Lyre v. Dowell,
71. Jur. N.S. 41. (H.L.); 9 H. Lds. Cas. 619.]

6. A., tenant for life of real estate, be-
queathed the residue of his real and personal
estate, and all rent and arrears of rent which
might be due to him at the time of his decease,
and alltimber or othertrees he might be entitled
to, upon trust, to sell and convert into money,
get in, and recover so much thereof as should
not consist of ready money; and declared
trusts of the proceeds. <A. then authorised the
executors of his will, of whom the trustee was _
one, to compromise and compound, or submit to
arbitration, and settle all debts owing to or
from him; and generally to act in relation to
the premises as they should think expedient,
without being liable to any loss which might
be occasioned thereby. L/e/d—[affirming deci-
sion below: 12 1. C. R. 1. (R.)]—that this will
did not authorise the trustee or executors to
sell the arrears of rent to the remainderman.

The executors, one of whom became agent
to the remainderman, sold the arrears, which
amounted to £49,000, to the remainderman, for
£20,000. Almost the whole amount of arrears
was collected by the remainderman. Held—
[reversing decision below: 121.C. R. 1. (R.)]
—that the executors were to be charged with
the entire amount of the arrears which had
been received.

The difficulty of collecting arrears of rent
does not excuse executors for not collecting
them, without some evidence that in fact they
could not have been recovered.—In re Alexan-
ders, 13 I. C. R. 187; 71. Jur. N. 8.89. (C.A.)

7. A legacy, payable to the legatee at
twenty-one, was charged primarily on the
testator’s personalty; and, failing sufficient
personal assets, on his realty. At his death
the personal assets were sufficient; but, owing
to a devastavit by the executors, became at
some subsequent unascertained time inade-
quate. The legatee (the petitioner) attained
twenty-one in 1849. The petition was filed
on the 26th of January 1863. Held, the
mere non-enforcement of payment from the
executors, no laches to estop the legatee.

That the real estate of the testator is liable
to the payment of the legacy.

Semble—There might have been laches if the
executors had appropriated a fund for pay-
ment of the legacy, and that fund had been
permitted to remain in the executor’s hands.
De son tore.

—In re Massy’s Estate, 14 I. C. R. 355; 8 I.
Jur. N.S. 874. (L.E.C.)

1. A will directed that no part of the tes-
tator’s property, except the interest in a house,
should be sold or disposed of, for ten years
only, if thought advisable by the executors ;
and bequeathed his property to his son, a
minor. The executor sold the interest in the
house to the respondent, who had notice of
some restriction on the executors’ power to
sell. There were not any debts. In a suit to
impeach the sale—Held, that the respondent
was bound to prove that the sale, being a
breach of trust, was at the full value.
M‘Mullen v. OReilly, 15 1. C. R. 251. (R.)

2. A sale or mortgage of a leasehold estate
by an executor, is not impeachable, unless the
buyer or mortgagee is privy or party to afraud
or devastavit committed by the executor.

It is a devastavit when an executor deals
with assets for any purpose unconnected with
the administration of the testator’s estate.

An executrix cannot carry on a partnership
business with her testator’s assets, nor raise
capital for that business by mortgaging her
deceased husband’s property. Such a pro-
ceeding constitutes a devastavit; and the Court
will dismiss a petition filed by a mortgagee to
raise his charge.—In re Johnston, 10 I. Jur.
N.S. 189. (L.E.C.)

VI. 3. Executor de son tort.

8. Effect of length of time as a bar as be-
tween executor de son tort, who afterwards
obtains administration, and the next-of-kin.—
Scott v. Knox, 41. E. R. 397. (E.E.)

4. A person acting in the management of
assets, though there be an executor, who
afterwards proves the will, is liable as an
executor de son tort, unless 1t clearly appears
that he was only an agent. When the evi-
dence left this in doubt, an inquiry on the
subject was directed,

An executrix and A., who was not an exe-
cutor, acted, and died without proving the
will, which was proved by the surviving exe-
cutor named in the will. The latter, and A.,
obtained a release from the parties interested
in the assets. In a suit to set it aside, and
for an account,—Held, that the personal re-
presentative of the deceased executrix was
a necessary party; especially as A. set up a
defence that he was only her agent.—Kelly v.
Murphy, 121. E. R. 614. (C.)

5. When an executor parts with any por-
tion of his testator’s assets, under circum-
stances which must be reasonably taken to
make the purchaser aware that they were
sold, not for the estate’s benefit, but for that
of the executor, the purchaser holds them as
if he himself was the executor in respect of
them.— Walker v. Taylor, 6 I. Jur. N. 8. 376.
(H.L.)

[EXECUTORS, &c.]

 

Accounts, &c. 327
VI. 4. Thai Accounts.

a. Generally.
b. Allowances to.

 

VI. 4. a. Their Accounts, generally.

6. An account was decreed against an exe-
cutor after nine years, notwithstanding an
account totted by a mutual friend of the
plaintiffs and the defendant, and admitted by
the plaintiffs in 1833; but not then examined
by them or vouched by the defendant.—Pur-
cell vy. Cole, 1 Long & T. 449. (E.E.)

7. In a suit to administer real and personal
estate of a deceased party, an account of
rents and profits received since the deceased’s
death, is never directed at the original hear-
ing, nor until, when upon the report coming
back, the necessity of it is apparent.—Schom-
berg v. Humfrey, 1 Dr. & War. 411. (C.)

8. In a suit for an account of an intestate’s
personal estate, the bill sought to charge the
administrator with wilful default, and con-
tained charges to that effect. The decree
directed only the ordinary accounts. Held,
that, nevertheless the Court would direct an
inquiry as to wilful default, if on the Master’s
report there appeared facts to warrant it.

The 204th Rule of 1843, does not take away
the discretion of the Court as to the rate of
interest to be charged upon balances in the
hands of the executors, &c.— Cuffe v. C., 3. I.
E. R. 469. (C.)

9. In asuit to administer assets, the report,
but not the bill, made a case for charging the
executor with interest upon balances in his
hands. Held, that the proper mode in which
to bring the question before the Court was, to
present a petition stating the special matter,
and praying that the cause might be set down
to be heard for further directions.— Cleary v.
C.,3 1. E. R. 562. (E.E.)

10. The executor of an administrator, who
died in England, proved his will in Ireland, in
order to take out administration de bonis non
to the intestate; but did not take it out.
Held, that the costs of such probate were not
chargeable against the intestate’s estate.—
Langford v. Mahony, 5 I. HE. R. 569; 4 Dr. &
War. 81; 2 Con. & L.317. (C.)

11. The Masters have power, in cases re-
ferred to them, under the 15th sec., to order, in
administration suits, that a personal repre-
sentative shall file a discharge, setting forth
an account of the assets; and to grant an
attachment against him if he disobeys the
order.

The practice in this respect certified by the
five Masters.—Gilenny v. Woolsey, 4 I. C. R.
615. (R.)

12. A bill had been filed against B. and C.,
executors of A., to administer A.’s assets,
B., died having received part of the assets.
An order having been made that the personal
representative of B. should be brought before
328 Assent by.
the Court, the plaintiff made B.’s representa-
tive a party to the suit by suggestion, pur-
suant to the Ch. Reg. Act, s. 29. Held, that,
upon this state of the record, the account
could not proceed against the personal repre-
sentative of B.; but that specific relief should
be prayed against him.— ‘Mahon v. O'Kelly ;
M‘Namara v. O'Kelly, 2 I. Jur. N. S. 281.
.)

VI. 4. b. Allowances to.

1. A motion was refused, with costs, to be
paid by A. and B. to C.,a defendant, who was
liable to pay a sum decreed against him,
which A. afterwards became entitled to as
executor. The Court refused to set off the
costs against the sum decreed.—Brennan v.
Kenny, 21. C. R. 592. (R.)

 

VII. WHEN THEY ARE BENEFICIALLY INTE-
RESTED IN THE RESIDUE.

1. When they are so entitled.
2. When they are only Trustees for Nest-
of-kin, &c.

2. When an executor is also devisee of the
residue and wastes the assets, without paying
the legacies, the real estate is liable, though
by the will only made liable failing the per-
sonalty.—ZJn re Massy’s Estate, 14 I. C. R. 355;
81. Jur. N. 8. 374. CL. E. C.)

3. If one who is executor, and residuary lega-
tee, also promises to pay legacies directed by
the testator to be paid, and consequently
omitted from the will, the undertaking will
be enforced in Equity, and the executor de-
clared a trustee for the legatees—Shany v.
Garty, 21. Jur. 137. (C.)

 

VIII. AssENT To oR By.

4. A., the legatee of a sum of money secured
by a mortgage term, bequeathed it to B., and
appointed him his executor. B. beqeathed
one portion of the sum to C. and another to
D., and made F. his executrix, who proved
the will. By one deed C. and F., both as the
representatives of B. and of A., assigned C.’s
portion of the sum to X., for value; and by
another deed, D. (his legacy having been as-
sented to by F.) assigned D.’s portion of the
sum to Y., for value. Held, that X. and Y.
took their respective portions of the mort-
gage money discharged of the claims of
judgment creditors of A.— Ward v. W., 4 I.
C. R. 215 (C.)—[See Ward v. W., 10 1. C. R.
465. (C.)]

5. K., possessed of a term of years, with a
toties quoties covenant for renewal, devised all
his landed property, houses and tenements,
goods and chattels of every description, ready
money and outstanding debts, to his sons, A.,
B., and C., to be equally divided between
them; and appointed his wife, J., executrix.

K. died in 1833, and on his death J., who
proved the will, and B. went into possession
of the lands until the death of J., in 1847,

[EXECUTORS, &c.]

 

Of the Assets.

when A. took out administration de bonis non,
and continued in possession, applying all the
rents to his own use. In 1850, a perpetuity
grant of the lands, under the Church Tempo-
ralities Act, reciting K.’s will, and that A.
was administrator de bonis non, was made to
him expressly in that character. In an ad-
ministration suit—Held, that the perpetuity
grant rebutted the presumption of an assent
by the executor to the bequests, arising from
lapse of time.

That the lands should be sold, and divided
into three shares, for the benefit of the sons
of K., or their respresentatives.

That the claim of A.’s representative, by
reason of the surplus rents received by B.,
should be paid out of B.’s share in priority to
judgments against B., registered as mort-
gages.—_M ‘Connell v. Crothers, 9 I. C. R. 217.

(R.)

6. The receiver in a minor matter paid rent
due up to a certain period in respect of lands
held from year to year, which had been be-
queathed to the minor. The bequest had not
been assented to by the executor. Held, that
the minor was liable to the subsequent rent
only to the extent of the profits received out
of the lands, notwithstanding the payment of
the former rent by the receiver.—In re Fair a
minor, 13 I. E, R. 278. (R.)

 

IX. WHEN THEY ARE TRUSTEES ALSO.

7. Testator’s agent, named trustee and exe-
cutor, did not prove the will, or disclaim—
Held, that he was responsible as trustee, and
could not protect himself as agent only.—
Montgomery v. Johnson, 111. E. R. 476. (C.)

 

X. Or tue Assets.

1. When Real or Personal.

2. Whether Legal or Equitable.
3. Marshalling.

4. Admission of.

5. Following of.

 

X. 1 Of the Assets: when Real or Personal.

8. Unliquidated damages may be ascer-
tained in an administration suit and declared
assets.—LEngland vy. Donellan, Jones & Ca. 270.
(E.E.)

9. R., being indebted to A., by specialty
and simple contract, and being sued in Equity
for the amount, executed in 1816 a deed, pur-
porting to convey real estates to his daughter,
W., and her heirs. In 1817, A. obtained
against R.a decree for payment of his debt,
and thereupon issued a sequestration. The
sequestrators entered into possession of the
lands comprised in that deed, and so con-
tinued until R.’s death, in 1834.

In 1826, W. sold and conveyed the lands to
B., who had notice of the circumstances under
which the deed of 1816 had been exe@uted.
After the passing of the3&4 W.4, c. 104,
R. died. Held, that the deed of 1816 was
void, for actual fraud; that R. died seized of
Marshalling

the lands comprised therein; and that they
were assets for payment of his simple con-
tract debts.—Bernard v. O’ Connor, 2 Jon. 654.
(&.E.)

1. C. demised for lives renewable for ever,
reserving the yearly rent of £20, and cove-
nanted that the rent should be released on
payment of £300, if the lessee, his heirs or
assigns, should;be minded to fine it down.
The £300 was paid after C.’s death. Held,
that it was personalty, and must go to C.’s
executor, not to his heir.—In re Crofton, LI. E.
R. 204. (R.)

2, A fund was bequeathed, in trust, for the
separate use of A. for life, with power to A.
to dispose of it by will, provided the power
was not‘exercised in favour of B. A. by will
appointed the fund, not to B. Held, that the
appointees were trustees for creditors of A.,
and the fund assets for payment of her debts.

The rule that where a general power of ap-
pointment is exercised in favour of a volun-
teer, he is a trustee for the creditors of the
appointor holds, where the power is to be
exercised by will only.

A power is ‘general, though ,there be a re-
striction against exercising it in favour of
one person.—Ldie v. Babington, 3 I. C. R. 568.
(R.)

ws.
Lek

8. When a landlord dies between two gale
days, the rents payable by his tenants are
made, by the Landlord and Tenant Act (23
and 24 Fic. c. 154), apportionable between
his executor and his devisee ; the part appor-
tioned to the executor is personal assets.

Semble—That part could not be made pass
to the devisee except as personal estate.—
Hall vy. H., 111. Jur. N. 8. 244. (R.)

 

X. 2. Whether Assets are legal or equitable.

4. The conuzee of a judgment appointed
the conuzor one of his executors. The will
was proved by the other executor only. Held,
that in equity the judgment debt was not ex-
tinguished ; but was assets in the hands of
the executor for payment of his testator’s
debts; and that lands of the conuzor, sold
subsequently to the rendition of the judg-
ment, were, in the possession of a purchaser
with notice, liable to the discharge of the
judgment debt.— Willock v. Dargan, 11. C. R.
39. (C.)

X. 3. Marshalling Assets.

5. Semble—The rule of marshalling assets
does not apply when one of the funds has
not been realized, or was not expected to be
realized, at the time of the payment to that
creditor who had two funds.—A verall v. Wade,
Flan. & K.325, 328; 3 I. E.:R. 446. (R.)

 

6.8By a deed in which the mortgagors and
mortgagees were both named parties, and
which recited an agreement to purchase all
the estate, &c., of the mortgagors, and also all
the estate and interest of the several other
parties thereto, mortgaged lands were pur-

[EXECUTORS, &c.]

 

Assets. 329

ported to be conveyed to a purchaser free and
discharged from the mortgage. The deed
contained no covenant by the purchaser to
pay off the mortgage. It was executed by all
the parties except the mortgagee, to whom the
interest of the mortgage was regularly paid
by the purchaser during his life. Held, that
the devisee of the purchaser was not entitled
to have the mortgage paid out of the personal -
estate.

In what cases after the purchase of a mort-
gaged estate, the purchaser’s personal estate
is liable to pay off the mortgage. Cases of
Parsons v. Freeman, Amb. 115, and Tweddell v.
T., 2 Br. C. C. 101, considered and distin-
guished.—Barry v. Harding, 71 E. R. 313; 1
Jon. & L. 475. (C.)

7. A testator left his property among F., J.,
S., and P., directing them to pay his debts in
specified proportions. A creditors’ suit having
been instituted, it appeared that J. had over-
paid his preportion, and that balances, differ-
ing in amount, were due of the proportions
payable by F., 8., and P. A decree was pro-

nounced to sell their shares of the property in

default of payment. S. paid the balance due
by him, but F. and P. did not. The suit con-
tinued, and ultimately the shares of F. and P.
were sold. P.’s share produced more than
sufficient to pay his proportion of the sum due,
but F.’s proved deficient, not having been
originally adequate to the proportion of the
burden imposed by the testator. Held, that
J., 5., and P. should contribute proportionally
to the amount by which F.’s share was defi-
cient, and also to the costs of the suit pro-
perly incurred.—Newby v. Drew, 7 I. E. R.
349; 1 Jon. & L445. (C.)

8. A. being entitled to real and personal
estate, for the administration of which, under
his father’s will, a suit was pending, devised
his real estates for a term, upon trusts, one of
which was, in case of a deficiency of his per-
sonal estate to pay his legacies, to raise, after
the decease of his wife, such sums as should be
sufficient to discharge the legacies for the dis-
charge of which his personal estate should be
insufficient; subject thereto he devised the
estates to his first and other sons in tail; in de-
fault of issue to his wife for life; remainderto E.
for life; remainder to his first and other sons
in tail. A died without issue ; his wife entered
into possession of the estates. The personal
estate was deficient. Various sums were paid
under different orders out of the personal
estate, partly in discharge of interest. E.
being dead, a suit was instituted by his son,
the first tenant in tail. Held, that the wife,
tenant for life, must bear the interest payable
on the amount by which the personal estate
was deficient, to be ascertained either within
a reasonable time after the decease, or by the
result of the entire account, and that this
should extend to the past as well as the future.

The personal estate being brought in gra-
dually and in sums composed of principal and
interest, whatever parts of it consisted of in-
terest should go in ease of the life estate, to pay
interest, and what consisted of capital sums in

42
330 Admitting

ease of the inheritance, to pay the capital of
the legacies.

Principles of the Court when dealing be-
tween a tenant for life and remainderman, in
apportioning charges, in giving the former the
benefit of property not realised in his lifetime;
and providing for the latter, so as to secure
the entire of the property intended for him.—
Coote v. Lord Miltown, 7 I. H.R. 391; 1 Jon, &
L. 501. (C.)

1. The Court will not marshal assets for
payment of a simple contract debt out of real
estate, when the bill has not been filed on be-
half of all the creditors of the deceased.

Liberty to amend the bill at the hearing,
by including all the creditors, refused.— Con-
nolly v. M‘Lermot, 3 Jon. & L. 260. (C.)

2. A., entitled to a charge on the estate of
S., and to government stock, bequeathed,
amongst other legacies, £2500 to M., and
directed that the charge should be called in
to pay the legacies; that the annual interest
of the charge in the meantime, and the stock,
should be appropriated to pay two legacies of
£500, to be paid first out of the stock, and the
deficiency, if any, out of the interest on the
charge ; if these should prove insufficient, out
of the principal. The executor having proved
the charge in a suit against the estate of S.,
received and misapplied a great portion of it;
and then executed an agreement, that £2500
of the sum reported on the charge should be
paid to M., and that she should be considered
the actual owner. That sum was afterwards
reported payable to her. The assets being
deficient in consequence of the devastavit—
Held, that the transactions between the exe-
cutor and M. were not an appropriation tan-
tamount to payment so as to give her priority
over the other legatees.—JLolloy v. French, 11
I. E.R. 376. (C.)

3. If there be sufficient assets to pay simple
‘contract creditors at the death of the testator,
and a devastavit subsequently take place, the
right to marshal arose when misapplication
took place. The question to be considered in
‘such a case is, not whether there were assets
at the testator’s death; but, whether there
were assets to satisfy the simple contract
creditors at any time.—Lllurd v. Cooper, 1 I.
Jur. 27. (E.E.)

4. When specialty debts of a deceased per-
son have been paid out of his personal estate,
and at the time of payment the personal estate
was sufficient tu pay his simple contract debts
also, and the executor subsequently commits a
devastavit, which renders the personal estate
insufficient to pay simple contract creditors,
‘they are entitled to be paid out of the real
estate of the debtor, to the extent to which
the personal estate has been onerated by the
specialty creditors.

The dictum of Lord Clare in Kearnan v.
Fitzsimon (3 Ridg. P. C. 16), that “ the rule of
marshalling assets holds only where it is pro-
per to be done at the death of the party
whose assets are to be marshalled, and can

[EXECUTORS, &c.]

 

Assets.

neyer arise upon any subsequent fact or ac-
cident” considered.

Simple contract creditors, who have, in
consequence of the payment of specialty cre-
ditors out of the personal estate of the de-
ceased debtor, acquired a right of marshalling
his real estate, are not barred under the Statute
of Limitations by the lapse of less than twenty

ears.
: (Vickers v. Oliver (1 ¥. & C., C. C. 211) ap-
proved of.]—Kllurd v. Cooper, 1 I. C. R. 376;
31. Jur. 205. (C.)

5. D. bequeathed lands in C. and L., to the
use that M. should receive an annuity of £50
per annuin out of C., and a like annuity out of
L., and devised C. to H. in strict settlement.
He devised L., subject to the annuity of £50,
and “tv the charge of £1000 hereafter men-
tioned,” to H.instrict settlement. He then gave
to X., W., and R. £1000, charged that sum upon
L., aud bequeathed the residue of his real and
personal estate to X., W., and R. Held, that
the £1000 was charged on L. in exoneration
of the personalty—Daunt v. ., 138 I. C. BR.
175; 71. Jur. N. 8.315. (C.)

6. A lapsed share of a residue of real and
personal estate devised subject to the payment
of debts, funeral and testamentary expenses,
is not liable primarily. but rateably with the
other residue, to testator’s debts.—Jn re Rath-
borne, 111. C. R. 141. (L.E.C.)

 

X. 4. Admission of Assets.

7. An executor, filing a bill against his tes-
tator’s agents, is liable for the balance and
costs, only to the amount of assets; the suit’s
institution not being an admission of assets.

An executor’s submission to arbitration is
not per se an admission of assets.—Mocher v.
Frazer &§ Reed, Beat. Rep. 578. (C.)

8. Executor adinitting that assets are still
outstanding, on personal security on which
they had been lent by testator, will not be
compelled before hearing to bring them into
Court or give security for it—Costelloes v.
Cantwell, 6 1. E. R. 886. CR.)

9. A testator, who died in 1815, charged his
real estates with his debts as far as his per-
sonal assets should be insufficient. <A credi-
tor brought actions against his executrix, who
gave pleas of confession, but then filed a bill
against the creditor, and the amount of the
demand was ascertained by the Master’s re-
port. The executrix having no assets to meet
the demands, P. advanced the money, and a
deed was executéd, by which the demands
were assigned to P., and the executrix cove-
nanted, that whichever of the sons, who were
entitled to the real estate, should first come of
age, would execute a mortgage to P. In order
to secure the sum advanced, she covenanted to
insure her life for the amount, and assigned
her jointure to secure the regular payment of
the premiums. P. covenanted on payment to
re-assign to her. The insurance was not kept
up, or the mortgage executed. A suit was in-
Following

stituted by P. to raise the demand out of the
realty. Held, that it could not be resisted on
the ground that this was a mode of realizing
assets, and released the realty by giving time
to the personalty, the primary fund, or was the
acceptance of a security which was suffered to
be lost. That the pleas of confession and
report were not an admission of assets by the
executrix; and that the demand need not be
proved de novo against the devisees of the
realty.—Purcell vy, Blennerhussett, 9 I. E. R.
103; 3 Jon. & L. 24. (C.)

1. To a legatee’s bill the executor admitted
assets sufficient to pay the legacies, but relied
on his right to retain them as an indemnity
for the contingent liability on the testator’s
covenants, and did not set out the amount of
the assets. Held, the answer was insufticient ;
that the executor was bonnd to set out the
amount of the assets —J/-Auley v. M-A., 9 1.
E.R. 142. (R.)

2. In an administration suit the Court does
not before decree order the executor or admi-
nistrator to bring money into Court, unless on
a distinct admission that he has assets in his
hands. In a case referred to the Master,
under the Ch. (/r.) Reg. Act, s. 15, an execu-
tor de son tort by his discharge stated that he
had not any sum whatever of assets in his
hands, but was in advance beyond any sum
which had been realized out of the assets.
Held, that an order by the Master directing
him to bring money into Court was irregular.
A suit may, under particular circumstances,
be sustained in the name of a schedule credi-
tor of an insolvent, to make the property of
the insolvent, acquired after his discharge,
liable to his debt; but the assignee cannot
maintain such a suit unless he be a creditor,
or has entered up judgment against the in-
solvent, pursuant to the 78th and 79th sec-
tions of the Insolvent Act.—Glenny v. Wool-
sey, 41. C. R. 636. (R.)

38. An executor, believing that there would
be assets sufficient to pay a legacy, became
trustee in, and executed the marriage settle-
ment of the legatee, which recited that she
was entitled to the legacy. It was agreed that
it should be assigned upon trusts. There was
afterwards instituted, for breach of trust by
the testator, a suit which if established would
exhaust the assets. Held, that there was an
admission of assets prima facie binding the
executor, who was ordered to lodge in Court
the amount of the legacy, without prejudice
to the executor taking such proceedings as
he might be advised, if a decree was pro-
nounced against him in the other suit, to be
relieved against the admission of assets.—
Chaiqneau v. Bryan, 8 I. C. R. 251. (R.)—
[Affd., 10 I. C. R. 172; 5 I. Jur. N. S. 4,
(C.A.)]

 

X. 5. Following Assets.

4. A fund was bequeathed in trust’for the
separate use of A., for life, with power to A.
to dispose of it by will, provided she did not
exercise the power in B.’s favour. A., by

(EXECUTORS, &c.]

 

Assets. 331

will, appointed the fund, not to B. Held,
that the appointees were trustees for her cre-
ditors ; and the fund assets to pay her debts.

The rule that an appointee, in whose favour
a general power of appointment has been
exercised, is a trustee for the appointor’s cre-
ditors, holds when the power is to be exer-
cised by will only.—Edie v. Babington, 3 I. C.
R. 568. (R.)

5. On the marriage of W. with A., the ptf.,
a mortgage term and £6000 secured thereby
were assigned to trustees for W. for life, re-
mainder to provide a jointure of £300 per an-
num for A., remainder for the first son of the
marriage who should attain age. C. was the
first son of the marriage who attained age.
W. died. C. became indebted by judgments
to A. A.’s jointure and the interest on her
judgments were regularly paid down to 1846.
C. bequeathed all his money and securities
for money to V., and constituted him sole
executor, C. died in 1834. V. bequeathed
his interest in the mortgage to his children,
in various shares; £1200, part of it, to his
daughter A. W., and a like sum to his son E.,
and constituted 8. sole executrix. V. died in
1846, and 8. proved his will. By deed, made
in 1850, between A. W. of the first part, S. of
the second part, and G. of the third part, A.,
W., and S., in her own right, and as represen-
tative of C. and V., assigned to G., for a valu-
able consideration, £800, part of A. W.’s
portion of the mortgage.

S. assented to the legacy to E., and by deed
of 1849, made between E. and F., for a valu-
able consideration assigned his portion of the
mortgage to F.

A. filed a creditor’s bill against S., praying
an administration of the estate of C. and V.

Held, that A.’s judgments were not charges
upon the bequeathed portions of the mortgage
in priority to the claims of G. and F. That
the lapse of time prior to the death of C.
prevented A. from following his assets into
the hands of a purchaser for a valuable consi-
deration. And that the assignment by the spe-
cific legatee of the legatee, with the assent of
the executrix of the first legatee, and the exe-
cutor of the debtor, barred the claim of the
plaintiff— Ward v. W., 41. C. RB. 215. (C.)

 

XI. ADMINISTRATION OF ASSETS.

1. Generally.
2. Who take.
8. As between Heir ana Executor, whether
Assets are Real or Personal : Conversion.
a. Of Conversion generally.
b. Real Assets belonging to the Heir.
c. Personal Assets passing to Execu-
tor, Administrator, or Next-of-
kan.
4. Debts.
a. What Debts are payable by them.
b. From what fund pagable: Appro-
priation.
1. Generally.
2. Personal Estate ; its exemp-
tion.
3. Real Estate devised or de-
scended.
332 Administration of

4. Devises, Bequests, Charges,
or other Appropriations to
pay Debts.

5. Mortgage Debts; their pay-
ment.

c. Order of paying Debts and Legacies.

 

XI. 1. ApmrnisTRATION oF ASSETS
GENERALLY.

1. Though the taking by a barrister of .a
bond for past and future professional services
is to be condemned, the bond will not be re-
lieved against on grounds of public policy.
In administering the obligor’s assets, the bond
was decreed to stand as a voluntary bond.—
Leslie v. Verschoyle, Beat. Rep. 585. (C.)

2. When, in an administration suit, the
executor, by answer, admits that there are
assets still outstanding, lent by the testator
on personal security, the Court will not, be-
fore the hearing, compel him to bring the
money into Court, or give security to abide
the decree.—Costellocs vy. Cantwell, 6 I. E.R.
386. (R.)

3. A simple contract creditor, who insti-
tutes a suit for the administration of personal
assets, and seeks to have his costs as against
judgment and specialty creditors, who may
come in under the decree, ought to make a
case for it by his bill, and show that a suit
was necessary for the due administration of
the assets and payment of his debt, or else,
that by his exertions he has made a fund
available which would otherwise have been
lost.—Drake vy. Ford, 31. E.R. 56, (E.E.)

4, Under a decree to take an account of
the assets of a deceased person, and for ad-
ministration thereof, a demand for unliqui-
dated damages may be proved and reported.
The preferable. mode of ascertaining the
amount is by an issue to be directed for that
purpose; but they may be ascertained by the
officer, by the examination of witnesses upon
interrogatories.—England v. Donnellan, Jones
& Ca, 270. (E.E.)

5. A testator’s general personal estate is due
primary fund for paying arrears of rent due
by him at his death. The devisee of the lands
out of which the arrears are due is entitled to
have the personalty so applied, even when he
is legatee of all the rents due by the under-
tenants of these lands.—Barry v. Harding, 7
I. E. R. 313; 1 Jon. & L.475. (C.)

6. Legatee’s assignee, pending a suit to
establish an alleged will, filed against the ad-
ministrator a bill to preserve the assets;
for a receiver; for an account of the perso-
nalty; to compel the administrator to bring
in the assets received by him; to restrain him
from receiving any more; and praying that
ptf.’s rights, under the will, might be ascer-
tained. On demurrer—Held, that the relief
must be limited to preserving the assets, to
which an account also was incidental, and
that ptf. was not entitled to a declaration of

(EXECUTORS, &c.]

 

Assets.

the rights under the will, orto have the assets.
administered.— Tom v. Deane, 8 I. E. R. 39. (R.)

7. The jurisdiction of the Court to admi-
nister assets acquired after the discharge of a
deceased insolvent is not taken away by the
Insolvent Act (8 & 4 Vic. c. 107). A suit to
administer such assets may be maintained by
a scheduled creditor of the insolvent, or by his
personal representative.

Thomas v. Pinnel (15 Beay. 148), and Jn re
Moylan (16 Beav. 220), disapproved of.—Dun-
levie v. Hort, 6 I. C. R. 82; 21. Jur. N.S. 194
(R.)—[Revd., 6 I. C. R. 99; 2 I. Jur. N.S.
293. (C.A.)]

8. X., bequeathed his real and personal
property in trust to sell, and after payment
of his debts, &c., to invest the produce in
bank shares and pay annuities; and be-
queathed the residue of his property upon
trust to pay the interest to A. for life. The
decree in an administration suit directed that
the trustee should hold the bank shares (sub-
ject to payment of the annuities) upon trust
from time to time to invest the dividends in
the purchase of other bank shares, or of
government stock, &c., and accumulate them
from time to time in the nature of compound
interest until a fund was created, which (with
other property specified) would suffice to pay
the outstanding liabilities and debts of X.,
and should yield an annual sum sufficient to
pay a contingent liability, which the assets
might be subject to by reason of a breach of
trust committed by X.; and that the trustee
should be possessed of the residue and such
accumulation, upon trust to pay the annuities,
&c., and subject thereto to pay the dividends
to A. Held, that the decree was erroneous in
directing the accumulation of the dividends
of the residue.

Semble—The proper decree would have been
to have directed the sale of so much of the
bank shares as would have been sufficient to
answer the breach of trust; and to have in-
vested the produce in £3 per cent. stock,
and transferred it to a separate credit; and
that the dividends should be paid to A.
for life; and that so much of the divi-
dends of the unsold bank shares as would be
equivalent to the amount of the annuities,
should be paid to the respective annuitants,
and the surplus dividends to A. And if the
dividends of the Bank shares should be in-
sufficient to pay the annuities, that the divi-
dends of the stock should be applied for that
purpose during A.’s life, and the surplus divi-
dends, if any, be paid to him.—Abrahall v.
Hamilton, 101. C. R. 51. (R.)

9. S., by will, after directing his debts to
be paid, and bequeathing legacies, left all
the residue of his personal estate to exe-
cutors, in trust to pay the interest to his
wife, A., for life. Held, that the reversionary
interest in the stock transferred to the trustees
to answer the jointure passed by the residuary
bequest, no intention to exclude it appearing
by the will; and that A. was entitled to have
the reversionary interest sold at the end of
one year from §.’s death, the proceeds in-
Administration of.

vested, and the dividends paid to her for life.
That having been omitted, the Court directed
an inquiry to ascertain what sum in stock
could have been purchased with the value of
the reversionary interest at that period; and
that so much of the assets should be set apart,
and the amount of the dividends, which would
have been payable to A. if the investment had
been made, should be paid to her. eld, that
in 1859, A. was not barred by the Statute of
Limitations or by laches, there being a sub-
sisting fund liable to her demand.—Napier v.
Staples, 10 I. C. R. 344. (R.)

1. A decree in a suit to administer the
trusts of a will is, if unobjected to and unre-
viewed, decisive of the testator’s seizure in
fee of the devised lands.—Spread v. Morgan,
51. Jur. N.S. 45. (C.A.) :

2. A lapsed share of a residue of real and
personal estate, devised subject to the pay-
ment of debts, funeral, and testamentary
expenses, is not liable to the debts of the
testator, in exoneration of the rest of the
residuary estate ; but rateably with it.—Jn re
Rathborne, 111. C. R. 141. (L.E.C.)

XI. 2. Who take.

3. J., possessed of a term of years in A.,
died intestate, and indebted, in 1791, leaving
H. and T. his only children. H., without
obtaining administration to J., entered upon
A. and acted as the sole owner thereof. In
1802 he obtained administration to J., and
died in 1809. T., shortly after the death of
J., went to reside in England, where he died
in 1805, never having claimed any interest in
A. In 1807, a bill was filed to foreclose a
mortgage of A., which had been granted by
H. After the death of H. that suit was
altered into a suit to administer his assets.
The personal representative of T. was not a
party to it; nor was any claim put forward
by him, or on his behalf, to the moiety of A.,
after payment of the debts of J., until 1818.
Held, that under a decree to take an account
of the personal estate of H., the Remem-
brancer was not warranted in reporting that,
under those circumstances, the whole of A.
was the personal estate of H.—Scott v. Knox,
41. E. BR. 397. (E.E.)

4. The fact that all the children of an in-
testate had advances made them, will not take
the case out of the Statute of Distributions,
7 W., 3, c. 6,8. 23 but the assets must be dis-
tributed equally.

When advances, made by the administrator
to the children, are to be brought into hotch-
pot, along with portions to which the children
were entitled under the marriage settlements
of the intestate, the Master should not charge
the children with interest on these sums.—
O Grady v. Buist, 4 1. Jur. 167. (C.)

 

XI. 3. As between Heir and Executor, whether
the Assets are Real or Personal. Of
Conversion.

a. Generally ; of Conversion.
b. Real; belonging to Heir.

[EXECUTORS, &c.]

 

Assets. 333

c. Personal; passing to Executor,
Administrator, or Next-of-kin.

 

XI. 3. a. Generally; of Conversion.

5. A judgment debtor was possessed of a
chattel and seized of freehold estate, both
of which descended to his son, a minor, who
made a will as to both, which passed the chat-
tel, but the freehold descended to his heir-at-
law, and the devisee afterwards sold the chat-
tel. Semble—The heir could not claim to have
the freehold exonerated from the judgment
by the chattel.—Boyd v. Belton, 8 I. E.R. 113;
1 Jon. & L. 730. (C.)

6. B., the younger son of a judgment
debtor, was entitled to part of a charge on his
estates, and died in 1792, having made a will,
beqeathing the charge to A., his brother. A.
died in 1793, leaving his father his next-of-
kin, who died in 1800. A trustee for X., who
was entitled to another part of the charge,
filed a bill in the Exchequer in 1807. X.
having taken administration as in case of in-
testacy to B., the report finding B.’s charge
due to him found, as an admission of the par-
ties, that it belonged to Y., a representative
of a sister who was untruly stated to be B.’s
next-of-kin. On X.’s death Y. became B.’s
administratrix, and in another suit in the Ex-
chequer the sum was reported due to her in
1884, she being then also administratrix to
the debtor. In 1822 B.’s will was proved,
and administration cum test. annex. granted to
X.’s representative. In a suit to raise the
judgment—Held, that the balance of B.’s
charge could be attached as personal estate
of the debtor, the creditor not being bound
by the Exchequer proceedings ; but that, to
make it available, accounts should be taken
of the estates of B. and A., against which the
representative of X. had claims, and that the
Exchequer proceedings did not bind X. and
Y.to admit there were no debts, &c., of A.
5 B.— Foster v. M‘Mahon, 111. E. R. 287.

7. In 1709 a public company conveyed lands
in fee to D., his heirs and assigns, subject toa
rent which D. granted to the company, their
successors and assigns, provided that if D.,
his heirs or assigns, should at any time there-
after pay £1000 to the governor for the time
being of the company, or to the other person
or persons who should at that time be em-
powered to receive the rent, the rent should
cease; and that, so often as D., his heirs, exe-
cutors, &e., should pay to the governor, com-
pany, and their successors or assigns, any
sum not exceeding £100, over and above the
rent and arrears then due, the rent should be
lessened proportionably to the sum $0 paid.

In 1716 the company assigned the rent to
E. and his heirs, subject to the proviso for
redemption. In 1840, B., who was then enti-
tled to the rent, by a deed reciting the pro-
viso for redemption in the deed of 1709, and
the assignment of 1716 to E., assigned the
rent to A. and his heirs. A. died intestate in
1849, whereupon the rent descended to his
334 Payment of

heir. In 1862 the owner of the lands gave
notice to reduce the rent. Meld—A.’s heir,
not his administrator, was entitled to the
£1000.—IJn re Graves, 15 I. C. R. 357. (R.)

 

XI. 3. b. Real: belonging to Heir.

XI. 8. c. Personal: passing to Executor, Admi-
nistrator, or Next-of-kin.

1. C. demised for lives renewable for ever,
reserving the yearly rent of £20, and cove-
nanted that the rent should be released on
payment of £300, if the lessee, his heirs or
assigns, should be minded to fine it down.
After C.’s death the £300 was paid. Held.
that it was personalty, and should go to C.’s
executor, not to his heir.—Zn re Crofton, 1 I.
E. R. 204. (R.)

2. An administrator is not bound to sell
chattels real of his intestate in order to dis-
tribute the produce amongst the next-of-kin,
when there are not any debts to be paid. If
any of the next-of-kin require it, the admi-
nistrator may convey to them their respective
shares.

In a suit to administer an intestate’s assets,
the Court may, after payment of the debts,
&c., if any of the next-of-kin require it, de-
clare their rights to chattels real, without di-
recting a sale.-—Bradley v. Flood, 16 I. C. R.
236. (R.)

 

XI. 4. Debts.

a. What debts are payable by or to.
b. From what fund payable: of appro-
priation to pay them.
1. Generally.
2. Personal Estate ; its exemption.
3. Real Estate: devised or descended.
4. Devises, Bequests, Charges, or
other appropriation of funds for
payment of Debts.
5. Mortgage Debts, Sc.; their pay-
ment, Sc.
¢. Debts and Legacies: order of paying
them.

XI. 4. a. Debts: what are payable by or to.

3. A purchaser under the decree of the
Court was discharged upon a report of bad
title. It was ordered that his deposits be paid
back to him, without prejudice to his applying
for the interest thereon, and his costs, when
there should be afund in Court. He died be-
fore either the costs were taxed or a fund for
their payment vas realized. Held, that on a
fund being afterwards realized, his personal
representative was entitled to be paid there-
out the interest and costs—Mackay v. Orr, 3
I.E. R. 499. (£.E.)

4. A leasehold farm, subject to a non-
alienation clause, was assigned to the tes-
tator in consideration of paying arrears of
rent due, and an annuity to the vendor. The
landlord refused to accept the testator as
tenant, and he was never in possession. He

[EXECUTORS, &c.]

 

Debts.

died leaving the arrear due, and purported
to devise the farm to the plaintiff, who was
in possession (it did not appear how), and
transferred his interest, as valueless, to a
person who was accepted as tenant, and paid
the arrears and annuity. eld, that the de-
visee was not entitled to claim the arrear
against the testator’s assets, the sale to the
testator being a nullity, and the arrears there-
fore never his debt: but Semble, if the landlord
had accepted him, the devisee would have been
entitled —Morres v. M., § I. E. R. 325. (C.)

5. The ptf. having an interest in an an-
nuity, subject to which the defendant’s estate
was purchased from the grantor, joined ina
suit in which six years’ arrears only were de-
creed. The grantor having covenanted to
pay the annuity, the ptf. took out administra-
tion to him, was sued at law, and had judg-
ment against her for the amount due beyond
‘six years. She then filed the bill to recover
that amount. Held, that the suit could only
be sustained for indemnity against actual da-
mage and, therefore, not beyond the amount
to which the grantor left assets; and Quere,
whether the suit being-a contrivance could,
even on proof of assets, be sustained.— Byrne
y. Dignan, 91. E. R. 295; 3 Jon. & L. 116.
©.)

6. In an administration suit by a judgment
creditor, when the ptf. recovers part of his
demand rateably with other judgment credi-
tors, he is entitled to be paid his full costs out
of the fund in the first instance.—Perry v.
Magrath, 6 I. Jur. 349. (C.)

7. The rule at law, that where the obligee
in a bond becomes executor of the obligor,
and receives assets adequate to discharge the
debt, itis extinguished, is also the rule at law
where one ouly of two obligees is appointed
one of several executors of the obligor.

The same rule prevails in Equity.

And this is so, albeit the obligees are trus-
tees.

A father, on the marriage of one of his
daughters, entered into a bond to A. andB.,
conditioned for payment of £4000, and on the
marriage of another of his daughters entered
into a bond to A. and C., conditioned for
payment of £4000, and was a party to the mar-
riage settlements of both daughters, whereby
the sums secured by the bonds were limited
upon trusts; and by his will, directing bis
debts to be paid, and reciting the acknowledg-
ment of the bonds, devised lands to A., and
other lands to D., and bequeathed legacies to
both of his daughters, to be paid out of his
personal estate if sufficient, but if not suffi-
cient, out of the devised lands; appointed A.
and two other persons to be his executors, and
died. More than suflicient assets for payment
of all his debts and legacies reached the hands
of A.—Held, that whether A. had or had not
committed a devastavit, the c. q. trustent had
not any equity to’ raise the amount of the
bond debts out of the lands devised to D.,
although D. had personally instituted a suit
against A. for indemnification of the lands
Appropriation

devised to D. against those bond debts. To
that suit the c. g. trustent were not parties.—
Richards v. Molony,21.C.R. 1. (C.)

 

XI. 4. b. From what Fund Debts are payable:
of appropriation to pay them,
1. Generally. ,
28Personal Estate : its exemption.
3. Real Estate, devised or descended.
4. Devises, Bequests, Charges, or other ap-
propriation of funds to pay Debts.
5. Mortgage Debts, §c.; thetr payment, §c.

 

XL 4. b. 1. From what Fund Debts are payable.
Generally ; Appropriation.

1. Upon u motion by defendant adminis-
trator, after decree in a creditor’s suit, to
restrain creditors from proceeding in a suit at
law; the administrator having, by his answer
in the cause, stated what assets had come to
his hands, and having given the plaintiffs at
law notice, after they had served their writ, to
come in and prove their demands under the
decree—Held, the defendant was entitled to
the injunction, and that the plaintiffs at law
were not entitled to any costs incurred by
them after the notice.

That the fund being deficient, the payment

of the costs was not a condition precedent to |

granting the injunction.

If the answer did not contain a sufficiently
full statement of the assets received, the Court
would allow the motion to stand over until
the assets were accounted for.— Pepper v.
Foster, 61. EH. R. 384. (R.)

2. Money having been bequeathed to a
wife, she and her husband joined in giving a
power of attorney to A. to receive it. A.
took out administration as attorney of the
wife and received the money, which he lodged
at a banker’s to the credit of the husband.
The wife bequeathed the money. Her will
was proved by her husband, and adminis-
tration c.t. a. taken out byhim. The account
having been afterwards settled and the ba-
lance struck, the husband released A. from
all claim. Held, that the giving of the power
of attorney to A. did not amount to a reduc-
tion into possession by the husband ; but that
the receipt of the money by A. and the pay-
ment of it into the bank to the husband’s
credit did.

Real estate cannot be. charged with simple
contract debts as against a purchaser for
valuable consideration from a devisee, al-
though the purchaser had notice of the debts,
if there be no fraud on his part ; and it is im-
material that the devise was of a residue.

Form of a decree directing the transfer of
Neapolitan stock.—Rocke v. R., 7 1. E.R. 436.
(C.)—[See Roche v. R&., 2 Jon. & L. 561. (C.)]

38. By deed under seal, reciting that a sum
of money was due on simple contract by the
firm of A., B., C., and D., X. assigned it to
A. and B., and it was declared that they should
stand possessed of it upon trusts. The money

(EXECUTORS, &c.]

 

to pay Debts. 835

was misapplied. Held, a specialty debt of A.
and B., not binding heirs.

Specialty debts in which heirs are not bound
have not priority over simple contract debts,
in the administration of real estate under the
3&4 W.4, cv. 104.

Probate to one of several executors vests
the property in all, so that on the death of him
who proves, the survivor represents the de-
ceased for all purposes without further pro-
bate, and without any further acceptance of
the office.

One of a firm, of which all the members owed
a sum vested in two of the partners on trusts,
and who had notice of the trusts, retired from
the firm, leaving ample assets to pay the sum.
The sum continued lent to the new firm, and
was applied in breach of the trusts, with the
knowledge of A. Held, that he was respon-
sible to the c. g. trust; for the mere retiring
and leaving sufficient assets was not sufficient
to discharge his liability unless they distinctly
adopted the new firm as a substituted security
for the old one.

A sum being lent on simple contract to a
firm, who promised to give a bond for it, was
vested in trustees, with power to vary the
securities. The fund continued to be lent to
the same firm. Held, a breach of trust.— Cum-
mins y. C., 8 1. E. R.723; 3 Jon. & L. 64. (C.)

4. The conuzee of a judgment appointed
the conuzor one of his executors. The other
executor only proved the will. Held, that in
Equity the judgment debt was not extin-
guished, but was assets in the executor’s
hands to pay testator’s debts; and, accord-
ingly, that lands of the conuzor, sold after the
rendition of the judgment, were, in the pos-
session of a purchaser, with notice, liable to
discharge the judgment debt.— Willock v. Dar-
gan, 11. C. R. 39. (C.)

5. Rent falling due after the death of the
lessee, under a covenant for himself, his heirs,
executors, &¢c., to pay it, is not such a debt as
can, under the Statute of Fraudulent Devises
(4 Anne, c. 5, Ir.; 3 W. & M., ¢. 14, Eng.), be
enforced against his real estate in the hands
of his devisee.

A., holding premises under a lease, made in
1789, for three lives, with a covenant for per-
petual renewal, demised them, in 1803, to B.
for the term of 900 years. That lease con-
tained covenants by B., for himself, his heirs,
executors, &c., to pay rent and keep the pre-
mises in good repair during the term, and at
the end of it to deliver them up in such re-
pair and condition. In 1830 the last c. g. vie
in the lease of 1789 died. In 1827 and in
1835 renewals had been made to a trustee for
parties claiming under the will of A. That
trustee died in 1840. In that year another
renewal was granted to another trustee for
the same persons. B. having died, his exe-
cutrix, in 1838, assigned his interest in the
premises to C., whose administrator assigned
them in 1846 to D., a pauper. Subsequently
to the death of B., the rent payable to the
persons claiming under A. became in arrear.
and the premises fell out of repair. Upon a
336 Appropriation
suit in Equity instituted by those persons—
Held, that the real estate of B. (the lessee of
1803) in the hands of his devisee was not
liable to the rent.

That the personal estate of B. in the hands
of his executrix continued liable for breaches
of the covenants to pay rent and to repair.

That the personal estate of C., the assignee
of B.’s interest in the lease of 1803, was, in
the hands of his administrator, liable for
breaches of the covenants to pay rent and to
repair, which occurred between the date of
the assignment to'him in 1838, and that of
the assignment by his administrator to D. in
1846.

That D. would be liable for breaches of both
covenants which might occur during the period
of his occupation.

Semble—That the petitioners were entitled
to substantial damages for breaches of the
covenant to repair, and not merely to such a
sum as would, if kept at interest untilthe end
of the term of 900 years, then suffice to put
the premises in repair.—[Marriott v. Cotton,
2 Car. and Kir. 553; Doe v. Rowlands, 9 Car.
& Pay. 734; and Jenkins v. Bryant, 6 Sim.
603, doubted. ]—Macnamara v. Vincent, 2 I. C.
R. 481; 41. Jur. 197. (C.)

1. In a suit against an executor for a breach
of trust committed by his testator, a decree
declared him liable for the breach of trust,
and directed an account of the assets. The
executor was reported a creditor against the
assets for a debt of a firm of which the testa-
tor had been a member. After the filing of
the bill, but before decree pronounced, the
executor assigned the debt. The final decree
ordered him to pay the sum found due in
respect of the breach of trust; and afterwards
a sequestration was obtained to attach a sum
carried to his separate credit on account of
the debt reported due to him. Held, that the
debt having been assigned pendente lite, the
plaintiff was entitled on the final allocation
to be paid the sum decreed to him, in prefer-
ence to the executor’s assignee.

A judgment at law was obtained against
the indorsee of a bill of exchange. In a suit
to administer the acceptor’s assets, the report
found the full amount of the debt. After-
wards the indorsee paid several sums on ac-
count of the debt. The assets proving defi-
cient, the debts were decreed to be paid
rateably. Held, that the sums paid by the
indorsee should be deducted from the amount
reported, in calculating the rateable propor-
tion of the assets to which the creditor was
entitled Cummins y. C., 16 I. C. R. 156.

(R.)

XI. 4. b. 2. Exemption of Personal Estate.

2. Testatrix devised fee-simple lands and
leaseholds for years to Y. and her issue, and
other fee-simple lands to H. and her issue; and
charged all the lands so devised with the pay-
ment of annuities bequeathed by her will. The
freeholds and leaseholds are liable to contri-
bute, in proportion to their respective values
at the decease of the testatrix, to the payment
of the annuities, and the leaseholds are not

 

(EXECUTORS, &c.]

 

to pay Debts.

liable in the first instance.— Young v. Hassard,
1 Jon. & L. 466; 71. E.R. 309. (C.)

3. The general personal estate of a testator
is the primary fund for the payment of arrears
of rent due by him at his death; and the de-
visee of the lands out of which the arrears are
due, is entitled to have the personal estate so
applied, even when he himself is also the lega-
tee of all the rents due by the undertenants
of the same lands. 5

P. purchased the lands of R., which at the
time were subject to a mortgage for a term of
years. The deed of conveyance, in which the
mortgagee (who did not execute it) was named
as a party, recited the mortgage, and that P.
had agreed with the mortgagor to purchase
all his estate, interest, and equity of redemp-
tion, in and to the lands of R., and also all
the estate and interest of the several other
parties to the deed therein; and in consider-
ation of a sum of money paid, and an annuity
granted to the mortgagor, and of the sum due
on foot of the mortgage therein expressed to
be paid to the mortgagee, the mortgagor and
mortgagee conveyed the lands to P. and his
heirs, freed and discharged of the mortgage
term. The mortgage money remained unpaid
at the death of P. Held, that the devisee of,
the lands was not entitled to have the mort-
gage paid off out of the personal estate of
P.—Barry v. Harding, 1 Jon. & L. 475; 7
LE. R. 313. (C.)

 

XI. 4. b, 3. Real Estate devised or descended.

4. Freehold estates devised, and chattels
specifically bequeathed, shall contribute rate-
ably to the payment of debts.—[Long v. Short,
1. P. Wms. 403, approved of ; Cornewall v. C.,
12 Sim, 298, commented on.] — Young v.
oo 71. E.R. 309; 1 Jon. & L. 466.

C.)

XI. 4. b. 4. Devises, Bequests, Charges, or other
appropriation of funds to pay debts.
See WILts.

5. By the will of A., who died in 1815, his
real estates were charged with his debts as far
as his personal assets should be insufficient.
A creditor brought actions against his execu-
trix, who gave pleas of confession, but then
filed a bill against the creditor, and the amount
of the demand was ascertained by the Master’s
report. The executrix having no assets to
meet the demands, P. advanced the money,
and a deed was executed, by which the de-
mands were assigned to P., and the executrix
covenanted, that whichever of the sons who
were entitled to the real estate should first
come of age would execute a mortgage to P.
In order to secure the advance, she covenanted
to insure her life for the amount, and assigned
her jointure to secure the regular payment of
the premiums. P. covenanted on payment
to re-assign to her. The insurance was not
kept up nor the mortgage executed. A suit
was instituted by P. to raise the demand out
of the realty. Held, that it could not be re-
sisted on the ground that this was a mode of
Order of

realising assets, and released the realty by
giving time to the personalty, the primary
fund, or was the acceptance of a security
which was suffered to be lost. That the pleas
of confession and report were not an admis-
sion of assets by the executrix. That the
demand need not be proved de novo against
the devisees of the realty.—Purcell v. Blenner-
hassett, 9 I. E. R. 103; 3 Jon. & L. 24. (C.)

1. V. devised all his real and personal pro-
perty in Ireland upon trust, after paying all
his just debts and funeral and testamentary
expenses, to raise out of the rents, or by sale
or mortgage, an annuity for his wife for life,
subject thereto, in trust for A. and his heirs;
and, having directed his executors to pay cer-
tain legacies, bequeathed and devised all his
personal and real estate in England to such
uses as his wife should by deed or will appoint;
in default of appointment, to his wife’s use for
life; after her decease upon the same trusts
as were declared of his Irish estates. V. de-
clared his will to be that, if his personalty in
Ireland should prove insufficient to pay his
debts and legacies, his trustees should raise
enough to pay them by sale or mortgage of
his realty in Ireland, which he thereby charged
therewith, it being his intent to exempt his
real and personal estate in England from pay-
ing them. V. died in England. His will was
proved in both countries. Held, that all
his funeral and testamentary expenses were
charged exclusively on the real and personal
estate in England— Coote v. C., 9 I. E. R.
197; 3Jon.& L.175. (C.)

 

XI. 4. b. 5. Mortgage Debts, §c.: their Pay-
ment, Sc.

 

XI. 4. v. Debts and Legacies: order of Payment.

2. The conuzor of a judgment, by will, in
1802, bequeaths leaseholds specifically, and
appoints the conuzee a trustee under his will.
The executor assents to the bequest in 1808,
having at the time assets for the payment of
all debts. A suit is instituted in 1812 to sell
part of the testator’s property by a specific
incumbrance, and under the decree in that
cause the judgment is found and declared a
charge on the premises. No sale takes place,
and after the death of the conuzee in 1822,
his widow, who was entitled to the judgment
under a settlement, which gave the conuzce a
life interest in it, files her bill to raise the
amount, which she amends in 1835, making
parties the specific legatee, his wife and child-
ren, upon whom the chattel had been settled
by a post-nuptial settlement. edd, that she
was entitled to compel the owner of the
chattel to contribute to payment of the judg-
ment.—Manniz v. Drinan, 3 1. E. R. 108. (C.)

3. A decree in a suit instituted against an
executor by a simple contract creditor of the
testator, for payment of his own debt merely,
directing his executor to pay out of the as-
sets of the testator, does not give any priority
over outstanding specialty creditors, of whose

[EXECUTORS, &c.]

 

Payment. 337

debts the executor has notice. Such a de-
cree is analogous to a judgment at law of
assets quando acciderint.— Sandford v. Seymour,
31. E. R. 212. (C.)

4, By marriage settlement £5000 wasvested
in trust to permit the wife, if she survived her
husband, to receive the interest thereof during
her life; and if no issue, in trust for the hus-
band absolutely; with power to the trustees,
with the consent of the husband and wife, to
invest the money in government or on real
security. The money was afterwards, with
the consent of the husband and wife, lent on
mortgage. The husband died without issue;
and by will bequeathed his interest in the
£5000 to A., upon trusts, and appointed him
executor. The wife afterwards married B.,
and upon her marriage, the interest of the
£5000 was assigned to A. upon trust to pay
the yeariy interest on the £5000 to the wife
for life; and A. covenanted with the wife
that he, his executors, &c., would stand pos-
sessed of the premises assigned to him upon
the trusts therein mentioned. The £5000 was
paid to A. out of the produce of a sale had in
a suit in which he was a defendant ; and A.
represented to B.’s wife that he had invested
the money upon government security. He
paid her interest according to the rate it would
have borne if it had been so invested. The
money was not, in fact, so invested, but was
applied by A. to his own use. Held, in a suit
for the administration of A.’s assets, that the
new trustee of B.’s last marriage settlement
was entitled to rank as a specialty creditor
for the difference between the amount of the
interest actually paid by A., and interest upon
the £5000, calculated at £6 per cent.; and
also (there being a deficiency of the assets to
pay the £5000, which was a debt by simple
contract), as a specialty creditor for any
future deficiency in the interest, calculated
at £6 per cent.

Costs of the suit given to the plaintiff, a
simple contract creditor, in priority to the
demands of judgment and specialty creditors;
the suit being necessary, and having been pro-
perly conducted.—Jameson vy. Farrer, 3 I. E.
R. 346. (E.E.)

5. In a judgment creditor’s suit for admi-
nistration of assets (the Master having re-
ported that the personal estate was of little
value, and a mortgage debt, part thereof, as
irrecoverable), the final decree directed a sale
of the real estate for payment of judgment
debts, ‘according to priority. There were six-
teen judgments; and the produce of the real
estate was applied in paying off the three
earliest, and the balance was paid towards
satisfaction of the fourth. Afterwards the
mortgage debt, part of the personal estate,
was unexpectedly realized, and the amount
having been transferred to the credit of this
cause, but being a very deficient fund, the
Master allocated it rateably, giving the fourth
judgment creditor his rateable share upon the
unpaid portion of his demand. The latter in-
sisted that the personal assets should have
been administered rateably, in the first in-

43
3388 [EXECUTORS GENERALLY.—EXECUTORY AGREEMENT.

stance, and, therefore, that a portion of them,
equivalent to the shares which the three prior
creditors ought to have received, should now
be allocated as the produce of real estate, not
rateably, but according to priority; and hay-
ing moved to send back the report upon this
ground, the M. R. overruled the objection and
confirmed the report, adopting the principle of
the decisions in 3 P. Wms. 322-844, n.—Ave-
rell vy. Wade, 31. E. R. 446. (R.)—[Confirmed
on appeal. See note, 3 I. E. R. 451.)

1. In the administration of assets judg-
ments rank inter se according to the date of
their entry upon the roll, under the 3 G. 2
CIr,), ¢. 7—Burke v. Kilhkelly, 1 I. C. R. 1.
(C.)—[Approved of, Revell v. Revell, 5 I. C.
R. 284; 11. Jur. N. 8. 168. (C.)]

2. This Court will not, at the instance of
the covenantee, impound real assets to meet a
contingent breach of covenant (to pay rent)
entered into by the deceased in his lifetime.—
Wyse v. Snow, 21. C.R. 254; 51. Jur. 57. (C.)

3. A judgment was obtained on the 3rd
Dec. 1845, The conuzor died of the 19th
Jan. 1847. Another judgment was entered
against the same conuzor on the 3rd Feb.
1845, and was registered under the 8 & 9 Vic.,
c. 90, on the same day. The judgment of
1847 was not registered until the 22nd Nov.
1847. JZeld, that in the administration of
the real and personal assets of the conuzor,
the judgment of 1847 had priority over the
judgment of 1845.

In the administration of assets, judgments
take priority inter se, according to the dates of
registration.— Revell v. R., 5 1. C. R. 284; 11.
Jur. N. 8. 168. (C.)

 

XI. Execurors anp ADMINISTRATORS
GENERALLY.

4, After appointment of a receiver under
the 3 G4 W. 4, v. 55, the petitioner died,
having appointed two executors, of whom
only one proved the will. The proceedings
in the petition matter must be continued in
the names of both executors.—Anon., 2 Jon.
731. (ii.E.)

5. The Attorney-General sufficiently re-
presents the personal estate of an intestate
bastard, without taking out letters of admi-
nistration thereof. — J/-Avernan vy. Kernan,
Flan. & K. 352; 41. E.R. 255. (R.)

6. When a petition alleges that a specific
sum is in the hands of the personal represen-
tative, and that allegation is not denied by
the respondent, the Court will direct him to
bring it into Court—Howe v. H., 4 I. Jur.
180. (C.)

7. An executor, believing that there would be
assets sufficient to pay a legacy, became trustee
in, and executed, the marriage settlement of
the legatee, in which it was recited that she
was entitled to the legacy, and it was agreed
that it should be assigned upon trusts. A

 

suit was afterwards instituted for a breach of
trust by the testator, which was still pending,

and, if established, would exhaust the assets.

Held, that there was an admission of assets
prima facie binding the executor, who was or-
dered to lodge in Court the amount of the
legacy, without prejudice to his proceeding
as he might be advised, if a decree was pro-
nounced against him in the other suit, to be
relieved against the admission of assets. —
Chaigneau v. Bryan, 8 I. C. R. 251. (R.)\—
[Affd, 10 I. C. R. 172; 5 I. Jur. N.S. 4.
(C.A.)]

8. When uw landlord dies between two gale
days, the rents payable by his tenants are
made by the L. and T. Act (23 & 24 Vic., e.
154) apportionable between his executor and
his devisee ; the part apportioned to the exe-
cutor is personal estate.

Semble—That part could not be made to pass
to the devisee, except as personal estate.—
fall y. H., 111. Jur. N.S. 244, (R.)

 

EXECUTOR DE SON TORT.
See Execurors anp Apministrators, VI. 3.

 

EXECUTORY TRUSTS.
See Trusts, III.

 

EXECUTORY AGREEMENT, DEVISE OR
BEQUEST.

9. When one party seeks the execution of a
contract which still remains in fier?, the other
may show that the contract was not confor-
mable to the parties’ real intention.

But, when the contract has been executed,
it is not open to a party to allege, by way of
defence, that the instrument does not truly
ascertain the real contract between the par-
ties.

To sustain such a defence, the deft. must
file a bill to reform the contract.—Law v.
Warren, 6 I. E. R. 299; Dru. Rep. temp.
Sudgen, 31. (C.)

10. V., seized in fee of three estates, de-
vised one of them (C.) to his daughter, L.,
for life, remainder to her issue in tail; in de-
fault of such issue, to his nephew R. for lite ;
remainder to his issue in tail, with several
remainders over; but left the ultimate rever-
sion in fee undisposed of. V. then devised
the two remaining estates to his other daugh-
ters, in strict settlement, but made no dis-
position of the ultimate reversions in fee.
V.was also seized of divers freeholds, and
possessed of considerable personal property.
After devising divers parts of his freeholds to
different persons, and bequeating some pecu-
niary legacies, his will concluded thus :-—“T
leave and bequeath the rest, residue and re-
mainder of my properties, both freehold and
personal, of whatsoever kind I may die pos-
sessed of, to my brother R.; and, if my said
[EXTENT.—FELO DE SE.]

brother R. shall survive me, I request and
desire that he shall convert all the personal
property into fee-simple property, and at his
decease leave the same entailed on his son J.,
in the same manner as I have entailed the C.
estate.” Held, that the freeholds which passed
under the residuary devise, as well as the re-
siduary personal property, were within that
trust to entail.

That this trust was to be executed by
giving a life estate to J.; remainder to his
sons and daughters in tail, according to the
limitations of the C. estate-—Tennent v. T., 7
I. E.R. 361; 1 Jon. & L. 379; Dru. Rep. temp.
Sugden, 161. (C.)

1. £1000 was left by a will to V. By a
codicil, if V. should marry and not leave
children or child alive, the £1000 was to
become the property of E. and F.; but if
V. “should ever marry, and leave a child
alive, or children, in that case she can leave
the said £1000 as she thinks proper, to one,
or amongst any children she may have.” By
a further codicil, the £1000 was left “to V.;
but if she died without children, it was to
become the property of E. and F.” V. mar-
ried, and died, leaving no child, but leaving a
grandchild, the son of a deceased daughter, to
whom she had appointed the £1000 on her
marriage. Held, that the bequest was an
absolute one to V., with an executory bequest
over to E. and F., if she should die without
leaving issue living at her death, whether
children or remoter issue, which, in the events
which had happened, had failed.—Jn the mat-
ter of Synge’s Trusts, 3 I. C. R. 379. (R.)

339

part of the terms upon which they would grant
the application, that the Crown should pay the
deft.’s costs of the former proceedings.—T he
Q. v. Perrin, 4 I. E. R. 429. (Rev. Exch.)

 

EXTENT AND EXTENSION.

— Of Security. See Morteacr, V—Security,
Il.

— Of Injunction. See Practice, InsJuncTion.
See ENLARGEMENT AND REFERENCE.

 

EXTINGUISHMENT.
— Of Debt. See Dents,
— Of Incumbrance. See Estate, VIII.
— Of Powers. See Powrr, XI.

 

EX TURPI CONTRACTU.
See CONSIDERATION, III.

 

FACTOR.
See PRINCIPAL AND Factor.

 

FAILURE OF SECURITY.
See INVESTMENT.

 

FALSE PLEA.
See PLeapine, PLEa.

 

EXEMPTION.
—Of Personal Estate. See Estate, IX.

FAMILY.
See WILL.

 

EXHIBITS.
See Practicy, EvIpENCE.

FAMILY DISPUTES.
See SETTLEMENT OF Famity Disputes.

 

EXONERATION.
— Of Real Estate. See Reav Estate, VIII.
— Of Personal Estate. See Esvate, IX.

 

EXPECTANT HEIRS.
See HeIR-AT-LAW.

 

EXPUNGING PROOF.
See Bangrurtcy, XIII.

 

EXTENT.
See Banxrvptcy, I.

2. Deft. demurred to the sheriff’s requisition
and return to a writ of extent. The demurrer
was allowed. The Crown applied for leave to
quash the former proceedings, and issue anew
extent. Held, that the Court might make it

 

FEE-FARM GRANT.

See LANDLORD AND Trenant, V, 4—LEAasE—
RENEWABLE LEASEHOLD CONVERSION
Act (12 & 13 Vic. c. 105).

 

FEE-SIMPLE.
See Estate, I.

 

FEE TAIL.
See Estate, II.

 

FEES OF OFFICERS OF COURT.
See Practice, OFFICER or Court.

 

FELO DE SE.
3. Administration of the goods, &c., of a
340

Jfelo de se granted to the Crown’s nominee,
although there was a will appointing execu-
tors.—Ure’s Goods, 8 I. Jur. N.S. 136. (P.)

 

FELONY.

See ATTAINDER—F ORFEITURE—J URISDICTION
VIII—Pieavine, Answer, IV.

 

FEME COVERT.
See Huspanp anp Wire—Power, I.

 

FEOFMENT.

See Fine anp Recovery—ForFeItuRE—DIs-
SEISIN— LivEeRY oF SEIsIN— Trusts,
XVI.

 

FIAT.
See Banxrurtcy, VI.

 

FIDUCIARY SITUATION.
See Fraup, VII.

 

FILING.

— Answer. See Practicr, ANSWER.

— Exceptions to Answer. See Practicn, An-
SWER.

-— Exceptions to Answer, nunc pro tunc. See
ibid.

— Demurrer. See Practice, DEMURRER.

— Affidavits. See Practicz, EvipENCE.

— Master’s Report. Sce Pracricr, Master,
REFERENCE TO.
~ Pleas. See Practice, Pie.

 

FINES.

See APPORTIONMENT, II—Leasz, VIII—Lanp-
LORD AND TENANT.

 

FINES AND RECOVERIES.
See Statutes, Construction or, [I—Fives
AND Recoveries (Agouition) Act 3 &
4 W. 4, c. T4.
I. GENERALLY.

Il. Mope or surrering Recovery, AND
LEVYING FINE.
WI. Errect or.
IV. Parties TO—WHO BOUND BY.
V. Usss or.
VI. REVERSAL OF — WHEN OBTAINED BY
FRAUD.
VIL. Fine anp Non-ciarm.

 

I. Fives, GENERALLY.

1. In the last sentence of the 21 G. 2, v. 11,
s. 8 (for validating recoveries after twenty
years, notwithstanding that the deed making
the tenant to the precipe should be lost and
not appear), “and” is to be read “ or.”

| of those securities.

 

[FELONY.—FINES, &c.]

To bring a case within that statute, itis not
necessary to give strict proof of the loss of the
deed.— Townsend v. Earl of Kingston, 6 I. E..
R. 118. (H.E.)

2. A., an infant, by articles executed pre-
viously to her marriage, covenanted to settle
her real estate after she came of age. During
coverture she executed a settlement in pur-
suance of the articles, but did not levy a fine.
Held, that she was not bound either by the
settlement or by the articles.— Brown v.
M Clintock, 71. BE. R. 347. (C.)

3. Entry of the payment of the King’s silver
is sufficient evidence of a fine having been
duly levied, the fine being complete on such
payment.—Majoribanks v. Hovenden, 8 I. E.
R. 317. (C.)

4. A rentcharge was devised to a married
woman, for her separate use for life, charged
on lands vested in trustees by the same will.
She and her husband by deed assigned the
rentcharge, in consideration of £300, in trust
to pay interest at £6 per cent. on the £300 ; the
premium on a policy of insurance ; £3 a-year
to the trustee for his trouble; and the residue
to herself. Held, that the rentcharge being
devised for the separate use of a married
woman for life, the deed did not require ac-
knowledgment under the statute for the abo-
lition of fines and recoveries.

That the deed was not void for usury, by
reason of the £3 reserved to the trustee.

That in a suit to charge the rentcharge with
the interest of the £300, the trustees of the
lands were not necessary parties.

Power of disposition and liability of a mar-
ried woman as to her separate estate con-
sidered.— Newcomen v. Hassard, 4 I. C. R. 268.

R)

 

II. Mope oF suFFERING RECOVERY, AND
LEVYING FINE.

Il. Errect or.

5. In 1799, D., tenant for life, demised all
his life estate for 99 years, if he should so long
live, upon trust to pay D. £10,000 a-year, and
apply the residue in paying those creditors
who should avail themselves of the benefit of
the deed. In 1819, D. joined B., his eldest
son, tenant in tail, in suffering a recovery and
resettling the estates.. In 1822, by deed, after
giving D. a power to charge £217,000 on the
estates, and B. a power to charge them, upon
D.’s death, with £100,000, those estates were
limited upon trust to pay B. an annuity of
£5000, to be increased to £6000 upon his mar-
riage. B. married, and to secure advances
made by ptf., mortgaged the annuities and the
£100,000. Ptf. filed a bill to obtain the benefit
To that suit some of the
creditors, being in possession by a receiver ap-
pointed in « cause instituted to carry into
effect the trusts of the deed of 1799, and claim-
ing under it, were made parties. Held, that
the recoveries suffered in 1819 did not ex-
[FINES, &c-—FISHERY.]

tinguish the trusts of the deed of 1799.—
Wallace v. Donegal, 1 Dr. & Wal. 461. (C.)—
[Affd., Houlditch v. Wallace, 1 Dr. & Wal.
490; 5 Cl. & Fin. 629.]

1. A fine operates on all the interest of the
conuzor, and will pass contingent as well as
vested rights, if the intention be so, The use
of the word “‘ vested” does not show a contrary
intention, when there are also the words “all
estate,” &c.

A share of an estate, of which a fine had
been levied, and which afterwards descended
to the conuzor, as heir-at-law, after the deed
to lead to the uses thereof, was held included
in the fine, and subject to the uses thereof, by
a deed which, after the descent, was executed
to confirm the deed declaring the uses of the
fine.— Cole v. Sewell, 6 I. E. R. 66 ; 4 Dr. & War.
1; 2Con. & L. 344. (C.)—[Affd., 2H. Lds.
Cas. 186; 12 Jur. 927.]

2. A fine by a tenant in tail, though levied
with a different intent, operates, in the first
place, to confirm any incumbrance previously
created by him, by a voidable conveyance.—
Loydv. L. 4 Dr. & War. 354; 2 Con. & L.
592. (C.)

3. By marriage articles the husband agreed
to settle out of the lands of K., in failure of
A., his daughter, by a former marriage, a
jointure on his intended wife; the remainder
of the lands on the issue male begotten on
the wife; on failure of issue male, on the
issue female; and if A. survived, and K.
should not be made good, then the lands of
K., which was not settled on the former
marriage should be subject to the jointure,
and be settled on the eldest son of the mar-
riage; and in failure of the son, on the daugh-
ters of the marriage. There was no male issue.
There were female issue, B., C., and D. No
settlement was executed, and the lands de-
scended to A., B., C., and D., subject to the
trusts of the articles in 1763, when B., C., and
D. went into possession. In 1783 they levied
a fine, and conveyed to a purchaser for value,
and covenanted that they were seized in fee.
There were several subsequent conveyances
for value. In 1847 the lands were contracted
to be sold. Held, in a suit for specific per-
formance against the purchaser, that the legal
title of A. and her heirs to one-fourth of the
lands was barred by the Statute of Limita-
tions, as a Court of Law would not notice the
executory trusts of the articles, and the seve-
ral conveyances operated as disseizins.

Semble—The equitable title of the heir of
A., on failure of issue of B., C., and D., was
also barred; but Held, that as the fine created
no discontinuance in Equity, the title was too
doubtful to be forced on the purchaser.

A conveyance of all her estate, &c., ob-
tained from the devisee of the heir-at-law of
A. was Held, to put an end to the objection ;
for although the reversion belonged to the
heir of the settlor, he must trace title through
the daughters; and all their right was ex-
tinguished by this conveyance and the fine.—
Stewart v. The Marquis of Conyngham, 11. C. R.
534, (R.)

 

341

4. A wife does not, by acknowledging a
deed under the Fines and Recoveries Act,
give entire validity to all instruments therein
recited, though it deals with interests created
by those recited instruments.—Darcy v. Mad-
deck, 41. C. R. 40. (C.)

5. Money charged on lands was by a mar-
riage settlement assigned upon trust to pay
the husband the interest for life; after his
death in trust to pay the wife a jointure;
proviso, that the husband might with the
trustees’ written consent, call in the trust
fund, and lay it out, and dispose of it in
purchasing an estate of inheritance, or free-
hold, for a term of at least three lives; or a
lease for years, of which 99 years should then
be unexpired ; or otherwise advantageously ;
which purchase, when so made, should be set-
tled to the same uses, &c. Part of the fund
was paid to the surviving trustee, who lent it
to the husband, on the execution of a release
by husband, wife, and their son. It was
acknowledged and enrolled under the Act for
the Abolition, &c. After the husband’s death,
his widow sued the trustee to replace the
fund. Held, that, as to her, the release was
inoperative.—Smuithwick vy. S., 12 I. C.R. 181;
61. Jur. N. 8. 282. (R.)

 

IV. Partizs TO: WHO BOUND BY.
V. Uses or.

VI. REveRsSAL OF;
FRAUD.

VII. Frye anp Non-ciarm.

WHEN OBTAINED BY

 

FIRE.
See INSURANCE.

 

FISHERY.

6. The petitioner claimed an exclusive
right of fishing in an arm of the sea, and
a public navigable river; and the petitioner
prayed that he might be quieted in possession
by an injunction. The respondent relied on
the general Common Law right of fishery in
the sea. Held, that the Court had jurisdic-
tion to entertain such a suit, and that the
petitioner need not be left exclusively to his
Common Law remedy.—Allen v. Donnelly, 5 I.
C. R. 229. (C.)

7. In an action brought by D., claiming to
be lessee of a several fishery in a public navi-
gable river, against §., for disturbing D. in
his fishery, 8. pleaded not guilty, and also
that he himself was seized of a several fishery
in the locus in quo. A verdict for D. in this
action was set aside upon exceptions. Even-
tually S. submitted to judgment against him.

Semble—That the verdict and dispositions of
the witnesses in the action were admissible
in favour of a subsequent lessee of the fishery
claiming under the lessor of D., against per-
sons claiming to be entitled to fish, as of
common right, in the locus in quo, it being a
public navigable river, or arm of the sea.
342

Held, that the admission of the verdict and
depositions in evidence was not a ground for
setting aside a verdict on an issue directed
from Chancery, to try whether the lessor of
D. had the exclusive right which he claimed.

In a similar action, brought by a subsequent
lessee of the fishery, the defendant pleaded a
plea relying on the general public right.—
Held, that the verdict and depositions of wit-
nesses in the former case were admissible as
evidence of reputation.

An ancient grant of a several fishery in L.
to I. was ambiguous with respect to the local
limits of the fishery granted. On the trial of
an issue “ whether I. had an exclusive right of
fishing in L., or any and what parts thereof,”
the defendant admitted I.’s right to all of
the fishery of L., southward of C. I. how-
ever, gave evidence of the enjoyment of the
fishery of L., southward of C.

Held, that the Judge was not bound to have
told the jury that evidence of enjoyment of
the fishery of I., to the southward of C., was
not evidence of a right to the fishery to the
nort:.ward of C.—Allen vy. Donnelly, 5 I. C. R.
452; 11. Jur.N. 8.165. (C.)

1. By letters patent of King Charles IT., the
fishery of the river of Galway from Lough
Corrib to the sea was granted to P., under
whom the petitioners claimed. The title of
the Crown and its grantees to the fishery was
deduced from the reign of King John. Acts
of ownership, and convictions of persons who
had trespassed on the fishery, were given in
evidence. The title of the petitioners had
been established by the verdict of a jury, in a
prohibition suit at law, to which some of the
respondents were parties. The respondents
admitted a right to a fishery in a part of the
river, but contended that in other parts they
and the public, from time immemorial, had
exercised a right of angling, and proved that
for many years persons had been in the habit
of angling in all parts of the river. The Court
granted an injunction to restrain the respond-
ents from fishing, without directing an issue or
an action at law.—Ashworth v. Browne, 10 I.
C. R. 421. (R.)

2. In a possessory suit the petitioner is en-
titled to an injunction on proof of possession,
uninterrupted, save by the act complained of,
during three years preceding the filing of the
petition.

A possessory petition should not rely on any
title other than the triennial possession.

A possessory petition cannot be amended.

In a possessory suit issues may be directed.

The Crown, by letters patent of 19 Jac. I,
and 13 Car. I, granted a several fishery within
certain limits in the river Bann, which within
those limits is divided into two branches by a
channel called the New Cut.

The Court directed an issue. Upon the
trial the verdict found that the New Cut was
at the time of the trial part of the river, but
that there was no evidence to show whether it
was a natural or an artificial channel. Held,
that the letters patent did not give the right
to a several fishery in the New Cut, unless it

 

[FISHERY.—FOREIGN LAWS, &c.]

was at the date of the grant a branch of the
river.—O’ Neill v. M‘Erlaine, 16 I. C. R.) 280.
(R.)—[But see s. c. 17.1. C. R. 86. (C.A.]

 

FIXTURES.
See LANDLORD AND Tenant, IV.

 

FOLLOWING ASSETS.
See Execurors, X.

 

FORECLOSURE.
See Morreace, VI.
— Decree for. See Pracricr, Decres.
— Reference as to. See Practicr, Master,
REFERENCE TO.

— In general.

 

FOREIGNERS.
See ALIENS AND FOREIGNERS.

 

FOREIGN COURTS.
See Jurispiction, IV.

 

FOREIGN LAWS, CUSTOMS, MATTERS,
AND THINGS.

— Foreigners and ther Rights. See ALIENS.

— Foreign Sovereigns. See ALIENS.

I. In GENERAL.
II. How Fak ACTED ON, OR RECOGNISED BY
Courts or THIS CoUNTRY.

 

I. Forricn Laws, &¢., IN GENERAL.

3. A., residing at Brussels, by a deed pre-
pared in England, engrossed on English
stamps, and executed in England, wherein he
was described as of R. in Ireland, reciting that
W. (an Englishman residing in England) had
agreed to advance him £8000, in consideration
of his paying W. £10,000 within six months
after A.’s father’s death, who was aged 76,
if A.’s wife (aged 41) survived his father;
and granting W. an annuity of £3000 a-year,
to commence from the death of A.’s father;
and that payment of the annuity and of the
£10,000 should be secured on A.’s life estate
in remainder, after the death of his father, in
estates in Ireland, granted W. the annuity for
the life of A.’s wife, to be charged on those es-
tates, and paid at the dining-hall of Lincoln’s
Inn, half-yearly, with clauses of distress and
entry. A demised the lands for 99 years, to
secure the annuity, and the payment of the
£10,000, and covenanted to pay the £10,000
and the annuity. Semble—The contract was an
English contract, and the annuity deed, not
having been enrolled, was avoided by the
English Annuity Act, 53 G. 3, c. 141.

Held, that though the annuity was void, the
covenant to pay the £10,000 was not neces-
sarily void, and might be enforced.

The mere fact of an annuity being charged
on lands in Ireland does not take it out of the
[FOREIGN LAWS, &c.—FORFEITURE.]

operation of the Annuity Act.—Walker v.
Lorton, 61. C. R. 329. (R.)

1. A., entitled to estates in Scotland and
in Ireland, by a marriage contract executed in
Scotland, and in the Scotch form, settled his
estates to himself and the heirs male of his
body, to be begotten on the body of his in-
tended wife, and bound himself to execute all
dispositions and conveyances in the Scotch
and Irish forms for rendering the destination
of the estates more complete. It was provided
that A should have power to impose condi-
tions and limitations on the heirs male, and
to vary the course of succession, so far as to
prefer one heir male to another; and if the
lands should descend to one child of the mar-
riage, and there should be other children whom
he should have neglected to provide for, A.
bound himself and the heirs of the marriage to
pay to each such younger child £600 as a por-
tion. Another clause provided that, notwith-
standing the said provision, the settlor might
augment, diminish, or make void the provision
of £600, it being provided solely with a view
to remedy A.’s neglect in not providing for the
children other than the heir; and it was de-
clared that the said provision should be a
burden upon the heir of the marriage. By a
subsequent instrument, not under seal, re-
citing the provision, that A. considered it
inadequate, and had resolved to add thereto,
A bound himself, his heirs and successors, to
pay to the younger children £2000 each, and
declared that sum to be inclusive and in
satisfaction of the provision in the marriage
contract. He provided a further annuity for
his daughters, in an event which happened,
and declared these provisions to be in full
satisfaction of all their claims under the mar-
mage contract or otherwise.

emble—The marriage contract should be
construed according. to the law of Ireland, as
to the Irish estates, and the portions of £600
were a charge on those estates, although by
the Scotch law they were not a charge on the
Scotch estates.

Held, that the portions of £2000 provided
by the second instrument were in substitution
of the portions of £600, provided by the mar-
riage contract, and were not charges on the
Irish estates.

Contracts relating to real estate are to be
governed by /ex loci rei site. Contracts rela-
ting to personal estate by lex loci contractus et
domicilit.—Dalzell v. D., 5 I. C. R. 463. (R.)
[On appeal: 61. C. R. 483. (C.)]

 

How FaR ACTED ON OR RECOGNISED BY THE
Courts or TaIs Country.

2. It does not seem contrary to natural
justice that if a minor may trade under the
laws of a foreign country, he may also be
made an insolvent there. Upon demurrer, the
Court will assume the colonial law to be so.—
Stephens v. M‘Farland, 8 I. E. R. 444. (R.)

 

FORFEITURE.

— Waiver of. See Pracricr, Brix.

— Plea of discovery tending to. See PLEADING,
PLEa.

343

— Of Legacies to Executors. See EXECUTORS.

See Coxpition—Covenant—Dowrr, IV—
JomntorE, [V—Lanpitorp & Tenant,
V—Leases — Lizy, III — Pieapine,
ANSWER—STATUTES, CONSTRUCTION OF,
I.

 

J. Wuat Causes ForreItuRE—GENERALLY.

1. In cases of Felony. oe

2. Breach of condition against Alienation.

8. In cases of Marriage without consent—
Leases—Fines—Policies— Generally.

 

II. IN WHAT CASES RELIEVED AGAINST.

 

I. 3. Forfeiture of Leases, gc.

38. A lease for lives, renewable for ever, con-
tained a proviso, that if the renewal fine was
not paid within twelve months, the lease
should be void. The lease became vested as
to one moiety in several persons, and as to the
other moiety in one person. A partition had
taken place between the owners of the moie-
ties, which were held in severalty. In 1794,
was granted a renewal to which all those in-
terested in the lease were parties, but which
was not executed by them. In 1804, the
owner of the entire moiety filed a bill against
the owners of the other moiety, claiming the
benefit of the renewal, and for an account of
rents received by them. In 1813, the renewal
was registered; the memorial named the
lives. In 1816, one life dropped. In 1817,
the owner of the entire moiety granted an an-
nuity charged on it; the memorial, executed
by him, mentioned the lives named in the last
renewal. In 1822, the owner of the entire
moiety, by letter, requested the lessor’s agent,
A., to state who were the lives in the last
renewal, and whether any, and if any, what
fine was due? Eighteen months later, he,
by letter, repeated his inquiry, and alleged
ignorance of the contents of the last renewal.
In reply, the agent stated the death, in 1816,
of one of the lives, and that he would grant a
renewal when the whole fine was tendered.
In 1824, one of the owners of the other moiety,
acting as agent for all its other owners, ap-
plied to A. to know the amount of their
moiety of the fine, and, upon being informed,
paid it. The other moiety not being paid, A.
returned the paid moiety, and took back the
receipt. Another life having dropped, the
owner of the entire moiety, in 1832, tendered
the whole sum due, and filed against the land-
lord a bill claiming a renewal. He made the
owners of the other moiety defendants.

The landlord’s answer alleged that the right
to a renewal had been forfeited by non-pay-
ment of the fine. The ptf. died, and the suit
was not revived. A third life having dropped
the owners of the other moiety filed, in 1840,
a bill for a renewal. The then owner of the
undivided moiety was made a deft. Held—
that A.’s letter was a demand of the fine
within the Tenantry Act, and that the right
to a renewal had been lost by non-compliance
with it.

That, even if no demand had been made,

 

the tenant’s conduct would have disentitled
344

him to a renewal.— Butler v. Portarlington, 4 I.
E.R.1. (C.)

1. In accounting for delay, and considering
what is reasonable time for complying with a
demand to renew, made by a landlord, the
Court must look at all the circumstances ; and
it may relieve in cases of long delay which has
arisen from mistake or ignorance, not wilful
on the tenant’s part, or from the fradulent or
other improper conduct of the landlord |

Semble—That a demand of rent with renewal
fines does not, per se, vitiate a demand for re-
newal fines under the Tenantry Act.

That mere non-payment of rent is not, per
se, such fradulent conduct on the tenant’s part
as disentitles him to a renewal.

That a notice, demanding rent, fines, sep-
tennial fines, and interest to be paid within a
limited time, and stating the landlord would
not renew, if they were not then paid, is a
sufficient demand within the Tenantry Act,
although septennial fines were not payable,
and although the time limited was less than
reasonable time.—M‘Donnell v. Burnett, 4 I.
E. R. 216. (E.E.)

2. A., being seized of lands under a lease for
three lives renewable for ever, demised for the
same lives to B., with covenant for perpetual
renewal. No renewal fine being payable, the
case was not within the Tenantry Act. The
covenant was to renew upon payment of all
arrears of rent within twelve months after the
death of any c. g. v. nominated in the lease or
in the future renewals ; proviso, that the lives
to be nominated by B. should be the very
lives inserted in any renewal that A. should
obtain. A. covenanted to keep his lease
renewed, and give notice to B. within three
months of each renewal, in order that B.
might then apply to A. for such renewal at
any time within three months after such
notice; and that A. would thereupon, on pay-
ment of all arrears of rent, renew to her;
provided that if B. did not pay all arrears
within twelve months after the death of the
nominee for the time being, the covenant
should be void. One life died in 1799; another
in 1811. One year’s rent was not in arrear
after either death, nor did A. then obtain a
renewal to himself. Verylarge arrears accrued
afterwards. In 1828, A. obtained a renewal.
Six years’ arrears of rent were then due ; but,
within twelve months afterwards, all had been
paid, and a renewal demanded by B.’s represen-
tatives. Held, that the covenant to renew
was not forfeited; and the mere neglect,
though gross, to pay his rent would not dis-
entitle the tenant to relief in equity.

A tenant, who resists an attempt by his
landlord to recover an arrear of rent by
means of a proceeding not authorised by law,
does not by such conduct forfeit his right to a
renewal of his lease. The landlord should
pursue the remedies which he has reserved to
himself.—/vtz Gerald v. O’Connell, 6 I. E. R.
455; 1 Jon. & L. 134. (C.)

3. Bequest of diet and lodging to a widow,
provided she wished to remain in a specified

 

[FORFEITURE OF LEASES, &c.]

house—Held, not forfeited by her leaving it;
but that, afterwards, she was entitled only
from the time of demand made.—Ryan v. R.,
121. E.R. 226. (C.)

4. Relief lies 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 that the forfeiture would not be in-
sisted on. But, when a forfeiture was incurred
after those dealings had ceased—MHeld, that
the prior dealings raised no equity—Flattery
y. Anderdon, 12 I. E.R. 218. (C.)

5. The interest in a lease for lives renew-
able for ever was settled on A. for life; re-
mainder, subject to a jointure, to A.’s wife,
to the use of his children, minors. In 1839,
one of the lives having died, B. (one of six
persons entitled to the reversion), acting on
behalf of all six, negotiated with A. for a
renewal. In 1847, a renewal was executed as
an escrow by the reversioners, on the promise
(unfulfilled) that the fine would be paid im-
mediately. In 1849, B., on behalf of all the
reversioners, made on A. a written demand
of the fines. Another life having died, A.,
in 1851, tendered the amount of the renewal
fines. Held, that the right to a renewal had
been forfeited— Wood v. Knox, 3 I. C. R.
109. (C.)

6. One condition indorsed on a policy of
insurance was, that no policy would be held
in force until after actual payment of the
premium ; nor would any policy remain valid

‘beyond fifteen days after the expiration of

any year, unless the premium for its renewal
had been actually paid. Insurances might
be renewed within three months, on satisfac-
tory proof of the party’s health being given.
The printed directions to the Company’s
agents stated that every life policy was to be
renewed within fifteen days after the premium
became due: if any life policy was not so
renewed, the agent was to give notice to the
secretary, and that policy could not thence-
forward be renewed without payment of a
fine, &c. All receipts for the renewal of life
policies were to be returned to the office at
the end of one month from the expiration of
the policies, if payment had not been made.
A policy was effected with an agent (A.),
who, to accommodate the insurer, took bills
for the amount of the premiums, and debited
himself (in his accounts with the Co.) with
that amount, but did not communicate the
transaction to the Co. The bills were not
paid. A. took a security for the amount. In}
Dec. 1846 another premium accrued, for which
the usual receipt in blank was forwarded to
A. The premium was not paid, nor did A.,
when it was due, debit himself therewith by
any entry in a book or account; but did so
in his next (March 1847) quarterly account,
and soon afterwards, at the treasurer’s re-,
quest, paid the amount, without communicat-
ing the transaction to the Co. Like transac-
tions happened in 1847 and 1848. In 1849
the life died. The receipts (still in blank)
for the premiums were returned to the Co.
Leases,

A correspondence ensued between the sec.
and A., who claimed the amount of the policy.
The Co. declined to pay him, unless the in-
surer joined in the receipt, which she declined
to do. Thereupon, the Co. refused to give
credit for the amount of the insurance against
the balance due by A., which they recovered
by action, without giving credit for the three
premiums which A. had paid. A., upon de-
mand, paid that amount to the Co. On a
petition by A. to recover the amount of the
policy—Held, that the policy had: dropped.

That the forfeiture was not waived by the
correspondence relating thereto. Busteed v.
West of Eng. Ins. Co. 51. C. R. 553. (R.)

1. A., tenant under lease for lives renewable
for ever, mortgaged his entire interest, but
remained in possession of the lands. Under
the Tenantry Act, the lessor served a notice,
not on the mortgagee, but only on A., who,
for a considerable period, omitted to renew.
A petition for a renewal filed by A. was dis-
missed on the ground of laches. Afterwards
the mortgagee filed a petition for a renewal.
Held, that it could not be sustained because
of the lessor’s omission to serve the notice
upon him.—Galbraith v. Cooper, 6 I. C. R.
518. (C.)

2. A lessor covenanted that, on the decease
of any of the lives, he would insert another
life ; the lessee, his heirs, or assigns, giving
notice of the decease in twelve months there-
after. The lessee was the last surviving life.
His son and heir-at-law having been abroad
for many years, and having had no communi-
cation with his family, was supposed to be
dead; and he did not hear of his father’s
death until after the twelve months had ex-
pired. He did not serve a notice to renew.
Held, that there was not such ignorance or
unavoidable accident as excused his non-
compliance with the covenant.—Murphy v.
Jackson, 7 I. C.R. 189. (R.)\—[Affd., 71. C. R.
502. (C.A.)—See s. c. 61. C. R. 307. (R.)]

3. In 1820, A. obtained a lease containing
at. g. covenant for renewal, the lessor being
tenant under Trinity Colleges On his mar-
riage, in 1821, A. conveyed his interest upon
trusts. It did not appear whether A. took
any or (if any) what estate under the settle-
ment; but he continued in possession. In
1845, A.’s lessor, having obtained a renewal,
served A. with a notice requiring him to re-
new, and to pay the renewal fine. In 1852.A.
died without having taken out a renewal.
After the expiration of the lease the surviv-
ing trustee of A.’s settlement filed a petition.
Held, that the notice served on A. sufficed to
create a forfeiture of the right to renew.

After A.’s death, his executor and the lessor
entered into a negotiation, during which the
lessor consented to renew the lease on condi-
tion that a renewal of other premises, which
were dilapidated, was also taken out. Held,
that he had not thereby waived his right to
rely on the forfeiture.—Orr v. Littlewood, 8 I.
C.R. 348. CR.)

[FORFEITURE.]

 

Policies, &e. 345

4, In 1822 A. was entitled to the reversion
of a lease for lives renewable for ever, which
had been renewed in 1808; and conveyed his
reversion to B. In 1854, C. (B.’s heir-at-law)
filed a petition against the executrix of D.,
the tenant (heir-at-law of A.), to recover
against D.’s assets arrears of rent. The an-
swer alleged that A. was insane when he
executed the deed of 1822. In May 1857, C.
served a notice on E. (D.’s heir), who was enti-
tled to the interest in the lease, requiring E. to
pay the renewal fines and to take out a renewal.
E. declined to do so until C.’s title should have
been established in the above-mentioned suit.
In January 1851, the suit ended in C.’s fa-
vour. In Nov. 1858, E., by notice, offered to
take out a renewal; and in Dec. 1858, ten-
dered the renewal fines with a draft renewal.
In Feb. 1859, he filed a petition for renewal.
Held, that his right to a renewal was for-
feited.—Long v. L., 101. C. R. 406. (R.)

5. A sub-tenant undertook to pay the head
rent but omitted to do so. The head landlord
evicted for non-payment. More than the six
months for redeeming expired, and the head
landlord offered the sub-tenant the option
either to redeem or take out a new lease. He
elected to take a new lease. Held, that the
forfeiture was not waived in favour of the
mesne tenant.—Dowding v. Com. of Char. Don.
and Beg., 12 1. C. R. 361. (C.)

6. One of the lives in a renewal was de-
scribed as “B. C., the younger, son of B. C.,
of Sion, aged fifteen years, or thereabouts.”
There were two persons named B.C. One
was eldest son of H. C., of Sion, and was fif-
teen years old. The other was fourth son of
B.C., of Kildalvin, and was nine years old.
On the evidence the Court determined that
this latter was the c.g. v. But the tenant
having tendered the renewal fine and interest
from the death of the former, and the land-
lord not having objected on that ground—
Held, that, under the Tenantry Act, the ten-
der sufticed to save a forfeiture.

There is not any general rule touching what
shall be deemed reasonable time for paying
renewal fines.—Colclough v. Smyth, 14 I. C. R.
127. (R.)

7. When the immediate lessee of See lands
is bound by covenant to renew, t. q., the sub-
lease of a portion, the sub-lessee may, by
delay, lose the right to compel specific per-
formance of that covenant, although he has,
by the sublease, covenanted to pay his propor-
tion of the fine within one month after notice
of the amount, even though no notice, such as
would ground an action of covenant, had
been given, if it appears that he knew the
oo oe v. Collum, 14 I. C. BR. 375.

8. A notice, demanding possession of the
lands, is 4 sufficient demand, under the Te-
nantry Act, to work a forfeiture.

A landlord, who had purchased the rever-
sion in a lease for lives renewable for ever,
upon payment of a peppercorn fine, served,

44)
346 Relief

in June 1860, a notice demanding possession,
the lives in the lease having expired. After-
wards he refused to renew except upon pay-
ment of the whole arrear of rent, including
what had accrued before his purchase, though
he was entitled to a portion only of that. On
a petition filed for a renewal—Held, that the
right to a renewal had not been forfeited,
since the landlord had demanded more than
he was entitled to.— Williamson v. Tuckey, 14
I.C. R. 407. (R.)

I. WHEN RELIEVED AGAINST.

1, A. demised lands, with a condition (upon
breach whereof the lease was to be void) against
assigning or subletting without A.’s consent,
under hand and seal. The lessee, with A.’s
consent hy letter, uot under seal, made an
agreement to demise part of the lands. B.
purchased A.’s reversion subject to that agree-
ment. C., administratrix of the lessee, applied
to B. for permission to demise, in pursuance
of that agreement, to E., assignee of the in-
terest under it. I. advised aud encouraged
C. to make the lease; stood by while E. ex-
pended a large sum on the lands; and wit-
nessed the execution of the lease, which he
knew to be a lease from C. to E. of those
lands. B. knew of the clause against sub-
letting; but did not know that A.’s consent,
not being under seal, was not valid in law.
B. also deposed that he had not, at the time,
any intention to take advantage of a for-
feiture; but, nevertheless, brought an eject-
ment for the forfeiture. Held, that notwith-
standing the condition in the lease against
assigning or subletting, and notwithstanding
the provisions of the Subletting Act (2 W. 4,
c. 17), the Court had power to relieve the te-
nant.— Burke v. Prior, 15 I. C. R. 106. (R.)

2. The tenant of an intermediate interest
in lands the property of a See, without hav-
ing renewed his lease or paid rent to his im-
mediate landlord for more than twenty years,
petitioned the L. E. Court to sell the fee, but
afterwards served on his iinmediate landlord
a notice containing an offer tu take out a per-
petuity grant. The landlord, by notice, re-
plied that be would execute the grant on pay-
ment to him of all rent, fines, interest, and
costs of establishing his title in the L. E.
Court. Held, that that notice was a waiver of
the forfeiture.

Semble—That the tenant had, by disclaim-
ing his landlord’s title during the proceed
ings in a Court of Record, forfeited his title
to a renewal.

A tenant applying to the Court for a f. f.
grant must pay all rent due, although the
landlord could not at law recover more than
six years of rent.

A tenant who has claimed the fee against
the landlord cannot afterwards rely on the
presumption that the rent accrued more than
twenty years before he applied for a f. f.
grant.

A tenant applying for a f. f. grant or
renewal is bound to pay rent and fines due
before his landlord’s title to the reversion

[FORFEITURE.]

 

against

accrued. As to such rent and fines, the land-
lord is a trustee for those entitled.— Courtenay
v. Parker, 16 I. C. R. 320. (R.)

 

FORGERY.

 

FORM.

— Of Bills in Equity. See Practicy, Bris.

— Of Answer. See Preapinc, ANSWER—
PracticrE, ANSWER.

— Of Demurrer. See Pueapine, DEMURRER.

— Of Plea, See Pursapine, PLea,

— Of Bankrupt’s Petition. See Banxrvrtcy,
XVI.

— Of Exceptions to Answer.
ANSWER.
— Of Appeal.
— Of Decrees.
— Of Affidavits.
— Of Injunction.
— Of ‘Bosers Report.
TER’S REPORT.
— Of Subpena. See Practice, Suppena.

See PRACTICE,

See Practice, APPEAL.
See Practicr, DECREE.
See Practice, EvipEnce.
See Practice, Insunction.
See Practice, Mas-

 

FORMS AND PRECEDENTS.

 

FORMER SUIT OR DECREE.

See Preapinc—Practice, Prea—Lis
PENDENS.

3. A demand being assigned for which a
suit is being prosecuted, if the assignee files a
new bill, the pendency of the former suit is
no defence or objection, at least unless
pleaded. If both cases be brought on, the
Court will prevent the double costs— O’Brien
vy. Villiers, 12 I. E. R. 21.. (C.)

4. Estates A. and B. were subject to an
ancient rent. A. being sold, the vendor
(Lord T.’s ancestor), covenanted to indemify
the purchaser (C.’s ancestor), and paid the
entire rent since 1766. In a suit against
Lord T., it was decided that so much only of
the rent as was payable out of B. could be re-
covered; and a decree was made for a fixed
amount. In a subsequent suit against Lord
T. and C. to recuver the remainder of the
rent payable out of A.— Held, that the former
suit afforded no defence to Lord T.; and that
he was properly a party to the new suit,
either as claiming part of the lands charged,
or in respect of the remedy over against him.
—Archbp. of Dublin vy. Lord Trimleston, 12 I.
E. R. 251. (C.)

 

FRAUD.
See DEBToR AND CREDI-

See Deeps, VI.
See Frings,

— On Creditors.
Tor, VI.

— Obtaining Lieeds by.

— Obtaining Fine and Recovery by.
&e., VI.

— On Expectant Heirs. See Hurr, Il.

— On Powers. See PowERs—APPOINTMENT.

— On Revenue. See ILLEGAL TRANSACTIONS.

— On Marital Rights. See Marriace, V.
Effect of

— Its Effect respecting Costs.
Costs.

— Obtaining Decree by.
CREE.

— Injunction to stay proceedings at Law in case
of. See Practicg, Ixsunction.

— Will obtained by Fraud. See Wiiv.

[See Acquirscence—AUcTION—AGREE-
MENT, [V—Bonp, IJI—ConsipEration,
II—Dertor & Crepitor, II—DEEps,
V—GamsBiinc—Lenetu or Time, II.]

See Practice,

See Practicr, Dr-

 

. GENERALLY — Its Errecr — RELinr
AGAINST.
1. Generally—Its Effect.
2. Relief against.

 

II. Acts PREVENTED BY FRAUD.
Ill. Icnorance or Ricuts.

IV. ConckEALMENT GENERALLY.
. CONCEALMENT oF TITLE.
VI. MisrePresENtaTtIon.

VII. ADVANTAGES OBTAINED THROUGH FA-

VOURABLE PurRCHASES OR OTHER-
WISE BY PERSONS IN FIDUCIARY SI-
TUATIONS.
1. Generally.
2. By means of relationship.
3. By Commissioners, Assignees, or
Solicitor to fiat in Bankruptcy.
4. By Counsel or Solicitor over his
Client.
5. By Agent over his Principal, or
Servant over his Master.
6. By Guardian over his Ward.
7. By Trustee or Executor.
8. Ly Spiritual or Medical Advisers,
Aittendants, or Companions.
9. How far such Frauds are affected

by lapse of time.

 

I. Fraup GENERALLY.
1. Its effect.
2. Relief against it.

 

I. 1. Effect of Fraud.

1. An agreement to procure to a particular
person a sale of lands in the Master’s office,
at a certain price, is a fraud on the Court, on
the public, and on the creditor. The Court
itself, for the sake of the public, is bound to
take notice of such an agreement, though the |
deft. falsely denies its existence, and on his
answer sets up a fictitious case.-—Hamilton v.
Ball, 21. E. R.191. (C.)

2. Semble—The protection given to a pur-
chaser under the statute against fraudulent
conveyances is not confined to cases in which
the first and second conveyances are made by
the same person.— Blake v. Hyland, 2 Dr. &
Wal. 397. (C.)

3. In a Court of Equity a feme covert is
bound as much as if she was a feme sole.—
Jones v. Kearney, 41. E. R. 74; 1 Dr. & War.
134; 1 Con. & L. 34. (C.)

[FRAUD.]

 

Generally. 347

4. Specific performance of an agreement to
sell lands decreed, although the seller was in
prison when the contract was entered into.

The Court is hound to examine carefully
into a contract entered into with a party
who is in gaol, and to see that no undue
advantage of his position has been taken;
but it is not true, as a general proposition,
that a man, in insolvent circumstances and in
prison, cannot sell his property.

Principles upon which the Court acts when
considering the question of value.—Brinkley
vy. Hann, Dr. Rep. temp. Sugden, 175. (C.)

5. A. was tenant for life ; remainder to his
children as he should appoint ; remainder in
default of appointment among them equally.
A. joined with his eldest son in fines and a
recovery, and afterwards, by an innocent con-
veyance, which the son signed, conveyed to a
purchaser, the entire purchase money being
paid to the father. JZ/eld, that as the trans-
action, if formal, would have been in fraud of
the power, it could not be aided so as to give
it operation, first, as an appointment, and
then as a conveyance to 4 purchaser; but
that whatever interest the son had at the
time passed by the deed.

Semble—That as the parties intended to
convey independently of the power, the deed
could not be construed as an appointment to
the son and a conveyance by him to the purcha-
ser.— Thompson v. Simpson, 8 I. E. R. 55; 2
Jon. & L.110. (C.)—[Sees. c. 1 Dr. & War.
459. (C.)]

6. Where the trustee of a fund settled on a
husband until insolvency, and then to the se-
parate use of his wife, at the urgent solicita-
tion of the wife committed a breach of trust
by lending part to the husband, who became
insolvent, whereupon the wife claimed the
whole fund — Held, that the trustee was re-
sponsible to her, as during the husband’s es-
tate she could not bind the remainder to her
separate use.

It is no answer to such a claim that the
husband’s insolvency was concerted, if that
was done merely to evade his debts. Semble—
It would be a defence if the insolvency was
concerted for the purpose of calling the wife’s
estate into existence—Mara v. Manning, 8 I.
E. R. 218; 2 Jon. & L. 311. (C.)

7. By an arrangement for winding up the
affairs of a banking company, which had
stopped payment, certain sums were sub-
scribed by some shareholders, and the assets
of the bank assigned to T., a shareholder, and
S., who undertook its liabilities. Part of the
arrangement was that §8., claiming to be a
creditor of the bank, should obtain a judg-
ment against the public officer, to be used
only to compel non-subscribing shareholders
to contribute. S. became bankrupt, and his
assignee issued a sci. fa. against T. On a bill
by T. to restrain him—Held, that the judg-
ment being a contrivance to compel the non-
subscribing shareholders to indirectly pay
what they might possibly have equities to re-
sist, if sued directly, the Court would not
348 Generally.

relieve one party to this contrivance against
the other, though suing in breach of faith.

Documents evidencing the arrangement
contained an express saving of all §.’s rights.
Semble— The arrangement would, notwith-
standing, prevent S. asserting his legal rights
against T., if the equity depended on the con-
struction only.—Taylor v. Campbell, 10 I. E.
R. 249. (C.)

1. The 10 Car. 1, c. 6,s.10 (13 Eliz. c. 5,
£ng.),in favour of creditors, avoids only deeds
which would deprive them of such property
as they could make available without their
debtor’s aid. Therefore, a settlement by a
tenant in tail in 1836, by which he opened
and re-settled his estate on himself for life,
with remainder over, is not within it.

The solvency or insolvency of the debtor
affords no certain test whether a deed is void
under that Act ; each case must be judged by
allits circumstances,

The 6 W. 4, c. 14, s. 87 (s. 73 of the Eng-
lish Bankrupt Act, 6 G. 4, c. 16), is retrospec-
tive as to conveyances made before the Act.

Semble—It is not so as to Commissions be-
fore the Act.—Clements v. Eccles, 11 I. E. R.
229. (C.)—| Sees. uv. subsequently ; 21. Jur.
286.- (C.)]

2, A. and B. were sureties for C., a default-
ing high constable of a barony. D. paid the
amount due by C., at the request of the
parties, but more particularly of A.; and took
a joint and several bond, with warrant to con-
fess one or more judgments. A_ separate
judgment was entered against A. Held, there
being no evidence of fraud or collusion, that
A.’s estate was liable to the whole amount of
the debt, although D. had not for two years
entered up judgment against B. and C.—In
re Clutterbuck, 5 I. C. R. 313. (P.C.)

3. When pleadings in equity are so framed
as to rest the claim for relief solely on the
ground of fraud, it is not open to ptf., if he
fails in establishing the fraud, to pick out
from the allegations in the bill facts which
might, if not put forward as proofs of fraud,
have warranted ptf. in asking, and the Court
in granting, relief.

It is the duty of the Judge to determine
whether the two are so interwoven with each
other, that, on failure of proof of the fraud, it
is impossible to treat the other facts as sepa-
rate allegations justifying a separate mode of
dealing with them.

H. was tenant, under G., of land under a
lease renewable for ever. L., N., and several
other persons held under H. on the same
terms. L. charged his holding with a join-
ture in favour of his wife; became embar-
rassed; and owed money to N., who obtained
from him possession of his land, though the
terms did not appear, and then demised to
him a portion of it for one year. H. was in
arrear with his landlord, and all H.’s tenants
were in arrear with him. N. purchased G.’s
interest in all the lands, and then noticed the
tenants to pay the arrears, to take out re-
newal leases, and to pay the fines thereon.

[FRAUD.]

Relief against.

These demands were not complied with. N.
brought an ejectment as for a forfeiture, re-
covered judgment, and took possession of all
the lands, under awrit of habere. Held, that
these circumstances did not raise an equity in
favour of L.’s widow, such as would entitle
her to have her jointure declared a charge on
the lands thus acquired by N.—Hickson vy.
Lombard, L. R., 1, H. L. 324.—[Revg. Lombard
vy. Hickson, 13 I. C. R. 533, (C.A.) Which
affd. s.c. 131. C. R. 98. (R.)]

 

I. 2. Relief against.

4. B. verbally agreed to buy A.’s premises,
Being unable to agree upon the price, A.
wrote to C., stating that he would, if C. ap-
proved, take a certain sum from B. for the
premises, but reserving a small portion thereof
for his (A.’s) sister. B. lodged with C. the
sum named in A.’s letter, upon which C. wrote
a memorandum of the lodgment, with a re-
mark that it was “a great price.” During the
negotiation, A. contracted with D. to sell
those premises to him, and conveyed them to
D., though notice of the agreement between
A. and B. was given toD. Held, that since
D. had notice, the conveyance to him must be
deemed fraudulent, and must be delivered up
to be cancelled ; and that A.’s conduct having
been very fraudulent, B.’s costs should, in the
first instance, be paid out of the moneys
lodged by her with C.—Field vy. Boland, 1 Dr.
& Wal. 37. (C.)

5. When the lessor’s agent assigns a lease
to one who has notice of his character as
agent, the assignee has cast upon him the
same liability to sustain the lease as the agent
had. If the agent cannot uphold it, neither
can his assignee.—Molony v. Kernan, 2 Dr. &
War. 31. (C.)

6. A Joint-stock Banking Company stopped
payment. Shareholders, who afterwards ob-
tained the management of its affairs, contri-
buted, in proportion to the number of shares
held by them, to a common fund, which was to
be applied for protection of the contributors
in paying the bank debts, and they called on
all the shareholders to contribute to that
fund. Some did not. To carry out the con-
tributors’ object, they made, with a creditor
of the company, an arrangement to be used
against such shareholders as the contributors
should select. Accordingly, a creditor ob-
ftained a judgment by confession against the
public officer, who, at the contributors’ in-
stance, issued a sci. fa. against the ptf., who
had been a shareholder, but had, before the
making of the contract upon which the judg-
ment had been obtained, assigned, by informal
transfers, his shares to a trustee for the Co.
Held, that, in the view of a Court of Equity,
the transaction was fraudulent, and the credi-
tor was restrained from proceeding at law
against the officer—Taylor v. Hughes, 71. E.
R. 529; 2 Jon. & L. 24. (C.)—[See this case
in 7]. E.R. 80. (C.)—And on motion when
Court restrained the creditor, until answer,

 

from proceeding at law on the sci. fa. against
Relief

the shareholder, and restrained the bank from
placing the shareholder’s name on the next
annual register.— Taylor v. Hughes, 6 I. E. R.
480. (R.)]

1. Several estates, among them K. and B.,
were devised to trustees to the use of H. for
life, remainder to his first and other sons in
tail, remainder to R. for life, remainder to his
first and other sons in tail; with a power to
the trustees to raise, by sale or mortgage of
the lands, or a competent part thereof, sums
sufficient to pay the testator’s debts and lega-
cies, which were thereby charged on his real
estate. The testator died in 1788, and imme-
diately after, H. advertised the lands, and
agreed to sell K. to G. for what was then suffi-
cient value. No regular contract was entered
into; but G. treated himself as the purchaser,
and from time to time paid off incumbrances
to an amount exceeding the purchase-money,
taking assignments of the securities to him-
self, or to a trustee for him. The trustees of
the will having declined to act, a bill was
filed in the Exchequer in 1789, by a judgment
creditor, for a sale, and the appointment of
new trustees. In this suit, which was amica-
ble, there were irregularities. Answers were
put in for parties whose names were affixed
to them, but who did not sign them; the
brother of the plaintiffs attorney was con-
cerned for the defendants; the plaintiff died
after the final decree, and the suit was not
revived, but an order was made in it entitled
in the executor’s name; and tenants in tail
coming iz esse during the suit were not brought
before the Court. There were also alleged
miscarriages in the report under the decree to
account. The final decree was in 1794, and at
the sale under it K. was bought for G. by the
attorney for the plaintiff, at the price agreed
on in 1788, there being only two other bidders
for form’s sake. In 1802 the personal repre-
sentative of the plaintiff assigned his rights
to atrustee forG. G.was afterwards declared
the purchaser of B. In 1810, an arrangement,
to which some unpaid creditors were parties,
was made, by which the payments made by
G. were so appropriated as to cover the pur-
chase of K., leaving an unsettled account
respecting B. An order of Court was then
obtained, and a regular conveyance of K.
executed. The tenant for life had been al-
lowed to remain in receipt of the rents, and
all interest on the incumbrances paid off by
G. was permitted to remain in arrear with his
consent, G. being allowed compound interest ;
and the entire amount of interest was allowed
in the purchase-money. The tenant for life
died in 1837, and the bill was filed by the
remainderman in 1843 to set aside the sale.
Held, that although the sale was the result of
a pre-arrangement, and the suit was irregular
in the above respects, yet, as in the opinion
of the Court, it was not fraudulent, and the
purchaser intended no fraud, and the purchase
was made at full value, the sale could not be
set aside, especially after so long a time.

That as the purchaser had lent himself to
the transaction, whereby the arrear of interest
was thrown on the inheritance, he should be

[FRAUD]

 

349

against.

made responsible for that amount; and an
account accordingly was directed.

The sale of B. took place in a similar man-
ner, in a suit behind the back of the Court,
but no conveyance of them was ever executed,
and no final settlement of the accounts on
foot of this purchase was ever made, eld,
that the sale of those lands, being still in fier,
should be set aside; and an account directed
on foot of the sums paid towards the purchase,
and of the rents received.

On the 15th of Dec. 1795, G., on the mar-
riage of his brother, granted a rentcharge of
£300 a-year, for 1000 years, out of K., which
was settled on the issue of the marriage. The
Court dismissed the bill, with costs against
the parties claiming under this settlement,
but refused to give them any relief.

Principles upon which the Court acts as to
what shall, and what shall not, impeach a sale
under a decree.—Bowen vy. Evans, 6 I. E. R.
569; 1 Jon. & L. 178. (C.)—[Affd., 2 H. Lds.
Cas. 257.]

2. An estate having been sold under a
decree for payment of incumbrances, part of
the purchase-money was applied in payment
of interest accrued during the possession of a
tenant for life. There had beenan agreement
respecting the sale with the tenant for life,
and he also obtained a lease of part of the
property. On a bill filed by the next re-
mainderman in tail, the Court refused to set
aside the sale, but referred it to the Master
to inquire if the sale was at an undervalue,
and if so, that the purchaser’s representatives
should pay the difference into Court, and that
the tenant for life should pay into Court so
much of the produce of the sale as the Master
should find had been applied in discharge of
interest accrued during the possession of the
tenant for life— Townsend v. Warren, 61. E.
R. 620; 1 Jon. & L. 221, n. (C.)

3. A Court cannot, without proof, presume
an agreement on the ground that, if there was
not an agreement, there was fraud.

The Court will not act upon fraud or other
misconduct, unless that fraud or misconduct
has been put in issue by the pleadings.— Stree
vy. Kirwan, 9 Cl. & F. 716. (HLL)

 

II. Acts PREVENTED BY FRavp.

4, There may happen a case in which the
governing body of a Joint-stock Co., or the
partners of a firm, may so unite with a stran-
ger, in practising frauds against those for
whom they act, as to enable them to repudiate
and be relieved against those acts.

In a case depending on alleged misrepre-
sentations of value, there cannot be a more
effectual bar to the ptf. than showing that he
was from the beginning cognizant of all the
matters complained of; or if he continued to
deal with them after full information.

A. demised mines to P., as a trustee for the
W. C. Mining Co., and received part of the
consideration for the lease. P.as A.’s exe-
cutor, filed against V., managing director of
the Co., a bill for an account of the sum due
350 Ignorance

on foot of the price, and for payment thereof.
V. filed a cross-bill setting forth facts evi-
dencing fraud against the shareholders, prac-
tised by A. and P., and impeaching the lease
as fraudulent, and the consideration as exor-
bitant. Held, that ptf. in the original cause
was entitled to the relief prayed for, and that
the cross-bill should be dismissed without
costs.— Vigers v. Pike, 2 Dr. & Wal.1. (C).—
(Affirmed, 8 Ch. & Fin. 562.— See 8. & Sc.,
635. (R.)]

 

Ill. Ienorance or Rieuts.

1. 8. obtained probate of the will of E.
‘The next-of-kin of E. appealed from the sen-
tence of the Prerogative Court, which the
Court of Delegates reversed. In contempla-
tion of such reversal, §. had transferred a
considerable fund, alleged to be a portion of
the assets of E., to B., in order to retain the
dominion over it if administration were grant-
ed to her opponent. The sentence of the
Delegates was ultimately reversed, under a
commission of review, and §. called on B. to
refund the property. B. not having com-
plied, S. filed a cause petition, on which an
order, in the nature of a decree pro confesso,
was made against B., who was, by a subsequent
order, permitted to file answering affidavits,
upon the terms of not relying on any defence,
save that the property was a gift to him.
Held—That if there had been any illegality
in the original transaction, it could not, in
that position of the cause, impede the peti-
tioner’s right to recover, even though appear-
ing on her own case.

Semble—That B. being an attorney, and
having suggested the arrangement, without
having stated to S., that it would be impos-
sible to compel him to refund, would not,
under any circumstances, have been permitted
to rely on the illegality of the transaction as
a defence to S.’s suit.

Serious questions of fact cannot be satis-
factorily determined by the Court in « pro-
ceeding by cause petition, without directing
an issue.—Kelly y. Birch, 3 I. C. R. 478; 71.
Jur. 73. (C.)

 

IV. ConcEALMENT GENERALLY.

2. W., having, as land and law agent of H.,
negotiated and been a party to a deed of
separation and maintenance, between ‘H. and
his wife, C., in 1821; and having by fraud
prevented its registry, was, four years later,
employed throughout the negotiation for a
loan advanced on a registered mortgage of
the estates comprised therein, as solicitor for
H., the mortgagor, and X., the mortgagee.
In a contest for priority between the two
deeds—Held, that since the knowledge ac-
quired in the transaction of the first deed was
clearly brought home to W., and its continu-
ance so clearly proved, as to make it fraudu-
Jent on his part to conceal it when acting in
the mortgage transaction, that fraud of W.,
agent of X., was to be visited on X.—WNizon v.
ck ad 11. E.R. 46; 2:Dr. & Wal. 364.

[FRAUD.}

 

Concealment.

8. The heir-at-law, also personal represen-
tative of a deceased debtor, bought up an
incumbrance on the estate for less than the sum
due on foot thereof. Held, that he was en-
titled to the full sum secured, as against a
subsequent incumbrancer, a solicitor, who
advised the purchase as a means of providing
for the heir, and did not disclose that the pur-
chase would enure to his own benefit. Bayly v.
Wilkins, 3 Jon & L. 630. (C.)

4, A lease impeached for alleged fraud and
undervalue—Held, under the circumstances,
valid. Concealment and misrepresentation,
relied on in such a case, must be proved
fraudulent; and the contract shown to be
based upon it, and the very fraud alleged in
the bill proved.--Marguis of Donegal v. Greg,
131. E.R. 12. (C.)

5. In'1803 a pension was granted to M. for
life. In 1811, he, by indenture, granted and
assigned that pension, for valuable considera-
tion, to D., his heirs, executors, &c. D. then
effected two policies of insurance on the life
of M., and died intestate in 1813, leaving W.
his heir,,and seven next-of-kin, of whom W.
was one, and P. was another. W. died in the
same year, having devised and bequeathed to
his son N. all his real and personal property,
and having appointed testamentary guardians
of N., then an infant. They appointed X., a
solicitor, and son-in-law of P., as their gene-
ral and law agent in the mavagement of the
property of N. The administrators of D.,
treating the pension as personal property
of D., in 1813 authorised M. to receive the
pension. He, until 1852, paid the premiums
on the policies out of the pension, and equally
distributed the surplus amongst the seven
next-of-kin of D., or their representatives or
assigns. In 1820 N. attained his full age, and
continued X. as his general and law agent
until the latter’s death in 1825. P. died in
1824, and from her death until that of X. in
1825, he, in right of his wife, received a moiety
of P.’s supposed one-seventh of the pension.
In 1821 N. obtained letters of administration
de bonis non to W., and in 1826 obtained like
letters to D. In 1842 M. re-purchased for
valuable consideration their supposed shares
of the pension and policies from some of the
next-of-kin of D.; and in the same year re-
purchased also for valuable consideration from
N. his supposed one-seventh of the policies
and pension, which latter up to that time he
had received from M. as residuary legatee of
W., one of the seven next-of-kin of D. The
deed, by which N. assigned that one-seventh
to M., was prepared by M.; and in reciting
the deed of 1811, by which M. had assigned
the pension to D., his heirs, &c., it omitted the
word “heirs.” N.was executor and co-trustee
with T. of the will of P. In 1826 N. and T.
filed a bill for the administration of P.’s per-
sonal estate, and as she was entitled to one-
seventh of the personal estate of D. as one of
his seven next-of-kin, in 1828 N. and T.
amended their bill, by making all those next-
of-kin and their representatives, &c., parties,
and by praying an account and administra-
Concealment.’

tion of the personal estate of D. also. In
1832 the usual decree to account was pro-
nounced. O. was the solicitor of N. and T. as
plaintiffs in the suit; but M. acted in it as
solicitor for N. in his capacity as adminis-
trator of D. and W. The deed of 1811 was
never produced before the Master. In a
charge filed in 1850 by O., on behalf of the
plaintiffs, the pension was treated as part of
the personal estate of D., and, as such, divi-
sible, together with the policies, amongst his
seven next-of-kin. Their dealings with it
since 1813 (which had been numerous) were
specified in that charge (including the re-
purchases by M.). Its devolution in the cha-
racter of personalty, together with that of the
policies, was traced from 1813 to 1850. In
May 1851, the Master by his report also
treated the pension as personalty, and allo-
cated it and the policies amongst the seven
next-of-kin of D. and their representatives,
and (inter eos), to M., the shares which he had
re-purchased. No exception having been taken
to that report, it was confirmed by a final
decree in July 1851. In February 1851, a
demand had been made on behalf ot the Re-
venue for legacy duty upon the pension. N.
being advised to resist it, having for that
purpose obtained a copy of the deed of 1811
from M., in whose custody it had always
remained, then first became aware of the limi-
tation of the pension to D. and his heirs. N.
then expressed his wish to O. and M. that the
report should not be signed until the liability
of the pension to legacy duty should be de-
cided. However, the Master having set aside
a sum of money to meet the amount of legacy
duty, O. thinking N. thereby sufficiently pro-
tected, and being pressed forwards by other
parties in the cause, caused the report to be
signed, and set down the cause for hearing.
The final decree of July 1851 was then made.
In January 1852, the Court of Exchequer de-
cided that the pension was not liable to legacy
duty, because upon the death of D. it devolved
under the deed of 1811 upon his heir, W.
Accordingly, N., as the devisee of the real
estate of W., presented a petition praying that
the decree of July 1851 should be re-hcard,
the report reviewed, and all its findings with
respect to the pension struck out; praying a
declaration that the premiums on the policies
should have been borne by the personal estate
of D., and not by the pension ; that in taking
the account of that personal estate, credit
should be given to N. against it, for the pre-
miums paid out of the pension; and that
provision should be made for their future pay-
ment out of the personal estate of D. The
cause was heard simultaneously with a motion
on behalf of N. to send back the report to be
reviewed.

Held, that the mistake, in supposing the
pension to form part of the personal pro-
perty of D. was common to all parties, and
that there was not any fraudulent suppression
of the deed of 1811, or of the nature and con-
tents of it by X. or M., or any other person.

That the title of the next-of-kin of D., and
their representatives, for so many years, fol-
lowed by possession, and acquiesced in by N.,

[FRAUD.]

 

Misrepresentation. 351

ought not to be disturbed ; that even were the
Court disposed to grant relief to N., no con-
ditions which it could impose would suffi-
ciently protect purchasers and others claiming
under the next-of-kin of D.; and accordingly
that the petition should be dismissed, and the
motion refused with costs.

That N. could not have obtained relief by a
supplemental bill in the nature of a bill of re-
view, because he had become aware of the
contents of the deed of 1811 before the report
was signed, or the decree of July 1851 pro-
nounced. ;

Whether it was not alone a fatal objection
to the petition of re-hearing and the motion,
that they were on behalf of N. only, and not
joined by his co-plaintiff, T.? Qucere.— White
v. Mansergh, 21. C. R. 393; 51. Jur. 73. (C.)

1. It is not necessarily fraudulent on the part
of an equitable tenant for life of renewable
leaseholds to require the renewal to be made
to him, without mentioning the settlement
which vests the legal estate in trustees.—
Allen v. Aldworth, 13 I. C. R. 190. (C.)—
[Affd., 11 H. L. Cas. 549.]

 

V. ConcEALMENT oF TITLE.

 

VI. MisREPRESENTATION AND CONCEALMENT.

2. The mere assertion of that which is not
true shall not vitiate dealings. The party to
be visited by fraud must have made the false
assertion wilfully and knowingly. :

When there was much evidence of fraud,
misrepresentation, and deficient value—Held,
that such evidence is not to be regarded, un-
less it goes also to fix the vendor with a know-
ledge or belief of such insufficient value, in
which case it is evidence of fraud.

The inference of fraud (when there is no
direct evidence thereof) will be rebutted by
the fact of the subject matter of the alleged
misrepresentations being equally open to the
examination of both parties.

When the owner of mines adduces to the
intended purchaser thereof evidences of their
value—Held, that the fact of his not having
brought forward evidence of what he was
aware, showing the mines to be of less value
than he represented them, did not constitute
such fraud or misrepresentation as to vitiate
the contract.—Pike v. Vigers, 2 Dr. & Wal.
252. (C.)—[See 8 Cl. & Fin. 562.]

3. J. being seized in fee of estates in T. and
L., and seized for life of estates in K., with
remainder to his son W. in tail, who had also
an equitable title to have a portion of the
estates in T. settled to the same uses as the
estates in K., and claimed a lien under deeds
on the rest of the estates in T. and the
estates in L., by deed reciting that J. was
entitled to the estates in T. and L. in fee.
to the estates in K., and for life with remain.
der to his son W. in tail, subject to charges
and trusts, and reciting the embarrassment
of J., and that advances had been made, and
others were intended to be made, by D. to pay
debts,—J. and W. conveyed all the estates in
352 Misrepresentation.

T., L., and K., in trust to receive the rents,
and thereout to pay D. the sum so advanced,
and such sum as he should thereafter ad-
vance for J. and W., or either of them, or for
payment of incumbrances; and on further
trust, at the request of D., to raise by sale or
mortgage of the lands, or a sufficient part of
them, such sums as might be necessary to pay
off D. all sums already advanced or to be ad-
vanced by him in discharge of incumbrances ;
and after payment of the incumbrances, upon
further trust that the residue of the rents
should be subject to such annuity for J. as
D. should appoint; and that the overplus,
after paying incumbrances and such an-
nuity as D. should so appoint, should form a
fund to make up £30,000 for younger child-
ren’s portions; and upon further trust, after
the death of J., and so soon as the incum-
brances should be paid and the £30,000
raised, for W., the son, in fee: proviso—that
the lands should be in the first instance
charged with an annuity for W. during the
life of his father, J.: proviso—empowering D.
to restrict the raising of the £30,000: proviso,
that nothing thereinshould invalidate the secu-
rities then or thereafter to be vested in D., but
that he should stand in respect of all his ad-
vances in the same priority as the incum-
brances paid by him. Held, that there was
sufficient consideration for the deed, and that
it was not void as against a creditor of the
father under the 10 Car. 1, s. 2, ¢. 3, Zr. (13
Eliz. c. 4, Eng.), as containing a power of re-
vocation or as intended to delay creditors.
Semble—The Court may look to other consi-
derations besides those stated in the deed.

‘A case of coercion, misrepresentation, and
intended fraud, to impeach this deed—Held,
not sustainable under the circumstances.—
Myers v. Duke of Leinster, 71. E. R. 146.
(G.)

1. W., the brother-in-law of L., a solicitor,
having occasion to borrow £500, L. wrote to
C., who had been his client, requesting a loan
on the security of W.’s estate, which he de-
scribed as being of ample value. C. replied,
“T can only Jend the money on the condition
of, first, a letter from you stating that you
know Mr. W. to be good and valid security for
£500; and secondly, the bond to be witnessed
by some respectable person with whom I am
acquainted.” L. answered, “I cannot have
the least hesitation in undertaking that the
security is good, and should not have men-
tioned it to you, but that I am perfectly satis-
fied.on the subject.” C. then sent the money
to L., who forwarded it to W., and prepared a
mortgage from W. to C., containing a cove-
nant against incumbrances, save an annuity.
There was also a collateral judgment to se-
cure the sum lent. On the mortgage being
sent to C., he complained to L. of the defi-
ciency of the security taken. L. wrote a fur-
ther letter, stating the particulars of W.’s pro-
perty, and alleging it to be worth £830 a-year.
Eventually the property turned out to be in-
sufficient to pay charges prior to C.’s mort-
gage and judgment. Held, that L. was bound
to make good to C. the loss sustained by this
investment.

[FRAUD.]

 

Advantages by.

A solicitor who makes to his client untrue
representations, respecting a property on
which the client is about to advance money,
may be compelled to make good those repre-
sentations, even though he may have been
himself misled.—Cleland v. Leech, 5 I. C. R.
478; 11. Jur. N. 8.193. (C.)

2. The deed of a banking company provided
that three directors at least were necessary to
constitute a “Court of Directors,” and that
such of the original shares as had not been
subscribed for might be sold by the “ Court of
Directors ;” but that the purchaser of them
should not be considered as their proprietor
until he had paid for them. Originally three
directors were appointed. One died, another
sold his shares and ceased to act. No direc-
tors having been chosen in their stead, 8.
alone remained director. He ordered a large
number of unappropriated shares to be en-
tered in the name of F., a nominal party; and
having circulated false balance sheets of the
bank enormously exaggerating its prosperity,
sold them to G. and others, as original shares
on which dividends had been paid, the transfer
deeds from F. being signed by 8. and two
others, not directors. The bank subsequently
became hopelessly insolvent. Held, that the
issuing of the unappropriated shares by S§., in-
stead of by a “ Court of Directors” was ultra
vires and void; that G. and the others could
not have insisted upon the validity of the
transfers to them by F. as against the original
shareholders, and were not liable as contribu-
tories; that S., if he, acting alone for the
company, had power to issue these unappro-
priated shares, having sold them to G. and
others by means of the most fraudulent repre-
sentations, the contract was vitiated by the
fraud, and G. and the other purchasers were
not liable to be put on the list of contributo-
ries.—In re Ginger, 1 I. Jur. N. 8. 373. (R.)

 

VII. ADVANTAGES OBTAINED THROUGH FA-
VOURABLE PURCHASES OR OTHERWISE,
By Prrsons 1n Fipuctary S1Tva-
TIONS.

1. Generally.

2. By means of Relationship.

3. By Commissioners, Assignees, or
Solicitor to Fiat.

4. By Counsel or Solicitor over his
Client.

5. By Agent over his Principal, or
Servant over his Master.

6. By Guardian over his Ward.

7. By Trustee or Executor.

8. By Spiritual or Medical Advisers,

Attendants or Companions.

9. How far such Frauds are affected

by lapse of time.

 

VIL. 1. Fraudulent Advantages generally.

3. Exposition of the principles upon which
the Court of Chancery acts, when deeds exe-
cuted between persons who stand towards
each other in a confidential relation are im-
[FRAUDULENT ADVANTAGES GENERALLY. ]

* peached.—Ahearne vy. Hogan, Dr. Rep. temp.
Sugden, 310. (C.)

1. A purchase upheld which was agreed to
on the vendor’s death-bed, and in considera-
tion of an annuity for his life, the vendee
having afterwards acquired the legal estate,
and the agreement having been in pursuance
of a contract made out by letters, written
some months before the final agreement.—
Barry.v. O’ Grady, 9 1. E. R. 550. (C.)

2. Securities obtained from the plaintiff as
a compromise of doubtful rights, but under
the threat and apprehension of arrest, and
without adequate consideration or advice, set
aside.—Scott v. S., 111. E. R. 74. (C.)—See
s. v., ibid, 487 (C.); 4 H. L. Cas. 1065.]

3. The deed of partnership of a Joint-stock
Bank provided that A., B.,and C.should be the
then present directors, and should constitute
the then Court of Directors of the company,
and that C. should be the managing director.
It also provided for the meeting of the direc-
tors at specified times; that three directors
should be necessary to constitute an ordinary,
and five to constitute an extraordinary Court
of Directors; that the Court of Directors
should act in strict conformity with the pro-
visions of the deed, unless altered at a general
meeting; that as to such of the shares as had
not been then subscribed for, it should be
lawful for the Court of Directors to sell the
same for the best price that could be got for
the same, and contained directions as to plac-
ing the name of the purchaser on the Share
Register Book. A. and B. having ceased to
be directors, and C., being at the time the only
director, issued a number of shares, and en-
tered them in the Share Register Book, in the
name of F., without his knowledge, and debi-
ted him in the books of the bank for the price
of them. G. having been induced by a false
and fradulent report, prospectus, and balance-
sheet, to become a purchaser of some of these
shares, as old appropriated shares, they were
transferred to him by F. G. received a divi-
dend, and was returned to the stamp-office as
the proprietor of those shares—/7eld, that the
issue of the unappropriated shares, being a
violation of the partnership deed in a matter
of substance, was null and void, and therefore
G. was not a proprietor of any shares, and
should not be placed on the list of contribu-
tories.

That, supposing C. to have been the agent
of the existing shareholders, and to have had
authority from them to issue the unappro-
priated shares, G., having entered into the
contract by reason of the fraud and mis-
representation of C., the existing shareholders
could not enforce it against him by retaining
him as a contributory.

Although a director is not the agent of the
shareholders to commit a fraud, if the share-
holders adopt and seek to enforce a contract
entered into by him as their authorised agent,
they cannot repudiate a fraud committed by
him, which led to the contract, and was im-
mediately connected with it— Ex parte Ginger,
51.C.R.174. (R.)

 

353

4, A woman, while living in adultery with
a married man, assigned property to secure a
debt which he owed to the trustees of his
marriage settlement. She afterwards filed a
petition stating the connection between him
and her, and alleging that he had induced
her to execute the assignment by the exercise

.of the improper influence which he had ac-

quired over her, and that the trustees knew
that her execution thereof was owing solely to
that influence, and praying that the assignment
might be set aside.—Held, that her statement,
if true, formed no ground for relief. — Har-
greave v. Everard, 6 1. C. R. 278. (C.)

5. A., mortagor, by a proviso in a mortgage
deed, agreed in a certain event, to sell to B., the
mortgagee, for a fixed sum, part of the mort-
gaged premises. eld, that the proviso, was
totally void, as being an onerous engagement
entered into at the time of the mortgage.—In
re Edwards’ Estate, 11 I. C. R. 867. (.E.C.)

6. D., sub-tenant of a portion of leasehold
property, undertook to pay the head rent, but
fradulently omitted so to do. The head land-
lord evicted the lease for non-payment of rent.
More than six months after the execution of
the decree, the head landlord offered the sub-
tenant the option of redeeming, or taking
out a new lease to himself. The sub-tenant
elected to take a new lease. eld, that the
forfeiture was not waived in favour of the
mesne tenant.—Dowding v. Commissioners of Ch.
Donations and Bequests, 12 I. C. R. 361. (C.)

7. A. demised land to B., with a t. g. cove-
nant for renewal on payment of a renewal
fine. B. demised on like terms to C., D., E.,
F., and G. C. conveyed his share in trust to
secure a jointure for his wife. D., a creditor
of C., went into possession of C.’s share, with
notice of the settlement ; and, while in pos-
session, a large arrear of rent and renewal
fines accrued due from B.to A. The lands
were distrained for the rent. D.- purchased
A.’s interest ; took a conveyance to a trustee
for himself; served a notice on B. and the
under-tenants to pay the rent and fines; on
non-payment brought an ejectment in the
name of his trustee; and recovered possession
of the lands. Held, that the lands were sub-
ject to the jointure, notwithstanding the evic-
tion.

Though fraud be charged, and not proved,
if, on the facts stated and proved, without
reference to the charge of fraud, a right to
relief is established, the Court ought not to
dismiss the petition—Lombard v. Hickson, 13
IC. R. 98. (R.)—[Affd,, 13 I. C. RB. 533.
(C.A.)—Revd., L. Rep. 1 H. L. 824.]

 

VIL 2. Fraudulent Advantages obtained by means
of Relationship.

8. A father, tenant for life, and his son
tenant in tail, the latter being just of age,
joined in opening the estate, and granting a
lease of some lands thereof, in consideration
of a fine and annual rent; there was no alle-

45
354 Obtained by [FRAUDULENT

gation that the fine, or part of it, was not
appropriated to theson’s use. eld, that with-
out direct evidence, there could not, in a bill
filed by the son to set aside this lease, as
having been granted by him whilst under
undue influence, be raised such a presumption
of its having been so made as to invalidate it.

It is not necessary that there should have
been separate solicitors employed for the
father and the son.—Cooke v. Burtchaell, 2 Dr.
& War. 165. (C.)

1. If a father, tenant for life, takes ad-
vantage of his son’s (the tenant in tail) neces-
sities, to draw him in to join in any convey-
ance which would destroy his remainder, this
Court, upon very slender evidence of such a
practice in the father, would relieve the son.
Wallace v. W., 2 Dr. & War. 452; 1 Con. &
L. 491. (C.)

2. Although, to sustain a case of fraud,
and to show that a will has been made under
coercion and influence, the evidence must be
pointed to the very factum of the will, and
directly show that the instrument whose
validity is disputed was executed under pres-
sure of coercion and undue influence, the
jury may, from circumstantial evidence, or
from inference and presumption from such
evidence, come to the conclusion that coer-
cion and undue influence existed.— Rossborough
v. Boyse, 31. C. R. 489; 61. Jur. 249. (C.)—
[See 31.C. R. 540, 629—Orders and decree
reversed, 6 H. Lds. Cas. 2.]

 

VII. 3. Fraudulent Advantages obtained by Com-
missioners, Assignees, or Solicitor to

Jiat.

3. When the assignee of an insolvent pur-
chases at an undervalue an incumbrance on
the insolvent’s real estate, the benefit of the
purchase shall enure to the scheduled credi-
tors in the insolvency matter. A., seized in
fee of lands, presented his petition in the In-
solvent Court; B. was appointed his assignee
and entered into receipt of therents and profits
of the estate. The estate was subject to
recognizances and other incumbrances, the
first charge being an annuity payable to C.
B., while assignee, made an advantageous
bargain with C., whereby he purchased her
annuity, together with arrears, amounting to
£1100, in consideration of a considerably
smaller annuity, and a sum of £400. The
lands were subsequently sold in the I. E.
Court. Held, that B. was entitled to be placed
on the final schedule, as an incumbrancer, to
the full amount of the arrears, subject to an
account; the benefit of his purchase, over and
above what he had actually paid, to enure to
the credit of the schedule creditors in the in-
solvency matter. Per Mr. Commissioner Har-
greave (dubitante), that the purchase ought to
be regarded as the compromise of a claim
enuring for the benefit of all parties interested
in the lands, according to their priorities.—
In re Browne's Estate, 7 1.C. R. 274. (LE.C.)

 

ADVANTAGES.] Counsel, se.

VII. 4. Undue Advantages obtained by Counsel
or Solicitor over his Chent.

4. C., a barrister, who had been for several
years confidential and advising counsel to P.,
and had, by reason of that relation, acquired
an intimate knowledge of his property and
liabilities, and was particularly consulted as
to a compromise of securities given by P. for
a debt, which C. considered not to be recover-
able to the full amount, purchased those
securities for less than their nominal amount,
without notice to P., after ceasing to be his
counsel. Held, that C.’s purchase, while the
compromise proposed by P. was feasible, was
in trust for P., and that C. was entitled only
to the sum he had paid, with interest accord-
ing to the course of the Court.—Carter v.
Palmer, 8 Cl. & Fin. 657.—[ Affirming 1 Dr. &
Wal. 722; 1 I. E. R. 289. (C.)]

 

5. L., being solicitor and land agent of W.,
and engaged in redeeming annuities charged
upon W.’s estate, took for his own benefit an
assignment of one of the annuities for a sum
less than that fixed by the deed for its re-pur-
chase. Held, that L. was a trustee for W. for
the re-purchase of the annuity.

A solicitor procured for his client a loan on
mortgage. The deed contained mutual stipu-
lations that there should be no redemption and
no foreclosure, provided the interest was re-
gularly paid, for five years. The solicitor
afterwards took from his client a mortgage
without this provision. J7eld, that he could
not proceed upon it within the five years.—
Lawless v. Mansfield, 1 Dr. & War. 557; 41.
E. R. 113. (C.)—[Questioned in Blagrave v.
Routh, 2 Kaye & J. 509; 8 De Gex, MacN. &
G. 620.]

6. A deed, executed by a client to his soli-
citor, in which the consideration is untruly
stated, will not- be allowed to stand.

The general proposition, that a solicitor
will not be permitted to take a security for
costs to be incurred, is established beyond the
reach of controversy.

Semble—That if the security be taken for
cash advances as well as prospective costs, no
distinction can be made in favour of the for-
mer.

Quere—When wu security is given for past
and future costs, can it be sustained as to the
former, though void as to the latter ?—Up-
pington v. Bullen, 2 Dr. & War. 184; 1 Con. &
L. 291. (C.)

7. Plaintiff was entitled under her father’s
will, and an appointment by her mother, who
was his executrix ; and she being in embarras-
sed circumstances and without professional
advice, and ignorant of the amount of her
claims, G., her solicitor, induced her, in 1833,
to convey to him all her rights, which he re-
presented to be only half what they amounted
to, for a rentcharge on the lands so conveyed
to him, the payment to be personally secured
by him. ‘The deed was drawn by G., and con-
tained no clause of re-entry, or covenant by
him to pay; but a non-alienation clause was

 

inserted fraudulently, as alleged. G. ceased to
Obtained by [FRAUDULENT ADVANTAGES.] Counsel, $c. 355

pay in 1836. The bill was filed in 1845, to set
aside the deed and carry the trusts of the will
into execution, and for an account of the tes-
tator’s property, so far as to ascertain plain-
tiffs rights, and if necessary of the personal
estate of her mother. B., the-executor of the
mother and administrator de bonis non of the
father, was made a party, but the trustee of
the father’s will was not. Held, on demurrer
by G., that the length of time since the execu-
tion of the deed, falling short of twenty years,
could not be set up by him on demurrer ; that
if it could, the case was one of actual fraud,
and the time would not bar; that there was
no misjoinder or multifariousness ; if multi-
farious as to B., G. could not raise the objec-
tion; that the surviving trustee was not a
necessary party.— O'Kelly v. Glenny, 91. E. R.
25. (R.)

1. The rule prohibiting a trustee, who is a
solicitor, from charging costs against his c. q.
t., considered. Securities containing such
charges set aside where the trust deed did not
clearly authorise them, notwithstanding letters
recognising the right to charge them, and a
petition for taxation presented by the c. g.t,
the letters having been written and securities
given under influence, and the latter being
improvident.

The securities set aside against a purchaser
for value from the solicitor, with notice —
Gomley v. Wood, 9 I. E. R. 418; 3 Jon. & L.
678. (C.)

2. The solicitor for X., who was plaintiff in
a suit to raise a charge on lands, purchased,
in the name of a trustee, the lands, at a sale
under the decree, which was conducted by him
in a manner that showed either great negli-
gence or a design to depreciate the property ;
and the proceeds of which were insufficient to
discharge his demand for costs, without pay-
ing anything to X.—The sale was declared
void on a bill filed by X. sixteen years after-
wards, without any proof of its being at an
undervalue.

Semble—A solicitor having the conduct of a
sale under a decree is under an absolute in-
capacity to purchase at it.

Relief in such cases is given after a great
lapse of time ; and where there is a deception
on the Court, semble, there is no fixed period of
limitation to bar relief—Atkins v. Delemege,
WLE.R I. (C.) 7

3. A., who had been a ward of Court,
within a few months after his discharge, being
in embarrassed circumstances, and sued by a
creditor, confessed a judgment for £500 to B.
a solicitor, his cousin-german and land agent,
by whose advice he was entirely guided in the
management of his affairs, although another
attorney (employed through B.) defended A.
against the creditor, and was also solicitor on
record for A. in some proceedings in Chancery,
which were really attended to by B. The judg-
ment was soon after registered as a mortgage.
In the course of subsequent proceedings by the
creditor, A., under the advice of B., made an
affidavit, stating that the judgment was given

for full and valuable consideration received.
In a suit by B.’s heir to set aside the judgment,
alleging that it was given without considera-
tion, in which suit it appeared to have been
really intended merely to delay the creditor—
Held, that the relation of solicitor and client
had existed between A. and B. at the date of
the judgment, and that the heir might have
relief.

Subsequently to the date of the judgment,
A. agreed to sell his estate, subject to its in-
cumbrances, to B., who was at the time, in
fact and on record, A.’s solicitor, for £100,
the value being considerably greater. A soli-
citor, an intimate friend of B., was, on his
suggestion, employed by A.; went through the
form of changing B. as A’ssolicitor; and on A.’s
behalf examined the deed of conveyance, and
submitted it to counsel; but did not in any
other way advise or consult with A.

Held, that A. had’ no sufficient and inde-
pendent advice, and that the conveyance
should be set aside, and was in no way the
better for the relationship between the parties.

Held, that A’s. letters to his mother could
not be read to show the state of his mind or
feelings towards B.

The Court will permit counsel, in opening
a case, to state, on his responsibility, any mat-
ter in proof in the cause, which he considers
properly admissible in evidence, subject to
subsequent objection to the proof of such.
matter—Low v. Holmes, 8 I. C. R. 53; Dr.
Rep. temp. Napier. 290. (C.)

4. A., entitled to leasehold and also to fee-
simple estates, devised the latter on trust for his
grandson, B., if he attained twenty-three, and
to his sons in tailmale; and if B. should not
attain twenty-three, then to whichever of his
other grandsons should do so first; remainders
over. Healso bequeathed to C., another of his
grandsons, one-seventh of his residuary estate,
which included his leasehold estate. B. at-
tained twenty-three, and died without issue
on May 8th, 1849. By deed, dated March
29th, 1834, C. conveyed to E. all that and
those the seventh share of C., of and in the
residuary estate of A., and in particular his
share of the seventh part of the residuary pro-
perty, “and all the estate and interest of him,
the said C. therein, or in any other lands which
were part of the residuary estate” of A., to have
and to hold the said leaseholds, “and all other
the share which the said C. is at present entitled
to, of any lands, or tenements, or any other pro-
perty, part of the residuary estate of A.” This
deed was prepared by the present owner, who
was a solicitor. E. subsequently, on the 25th
of June 1835, made a conveyance to the owner
in similar terms. C. died in 1848, having first
disposed by a codicil of his shares of the fee-
simple estate to which he was to become en-
titled on the death of B., and having charged
that share with £1000 for X., the present
claimant. X. was then a minor, and though he
took no steps until the present proceedings to
enforce his demand, he was paid‘annually the
sum of £120 by the owner, up to the filing of

 

the petition in this matter. Held, that this
356

payment, though it could not bind ,owner’s
creditors, rebuts charges of laches against X.

That the fee-simple lands did not pass in
equity, by the deed of March 29th, 1834, to E.,
owing to fraud either in the preparation of the
deed or in the making of a claim to the lands.

That mortgagees, without notice of the
fraud, could not avail themselves in this case
of that defence, since there were circumstances
of a nature to put them on suspicion, patent
on the face of the title.

Semble—If the intent of the deed was clear,
and that part of the consideration was paid
for the reversionary interest in the fee-simple
estate, it would have been competent to the
parties to convey their rights (in equity at
least) by any part of the deed.—In re Rorke’s
Estate, 13 I. C. R. 365. (L.E.C.)—[See 141. C.
R. 442; 15 1. C. R. 316.]

1. The L. E. Court will not set aside deeds
when they deal with other properties, not
under the control of the Court; or when
they contain obligations of an important
character, not connected with the estate
which the Court is required to sell, or has
sold; but will leave the parties to proceed in
Chancery.

The Court has jurisdiction to dispose of all
questions which arise incidentally in refer-
ence to any estate or fund under its control.

The L. E. Court will not allow the party
having the carriage of the order for sale, to
buy up charges in the estate at an undervalue,
for his own benefit, pending the proceedings.

It is sufficient proof of undervalue if a
greater sum is reported on foot of the charge
than the amount given for it in the interest.

The L. E. Court, will set aside the sale of a
charge at an undervalue, made to a party
having the carriage, on the application of the
party making the assignment; who has even
a better equity to set aside the sale, than the
owner or puisne creditors have to have it de-
clared a trust for them.—ZJn re Ronayne’s
Estate, 13 1. C. R. 444. (L.E.C.)

 

VIL. 5. Undue Advantages obtained by Agent
over his Principal, or Servant over his Master.

2. The clerk of the defendant effected an
insurance upon his own life; one of the con-
ditions of the policy being, that no person
should effect an insurance upon the life of
another in whose life he was not interested ;
and shortly afterwards assigned the policy to
the defendant, in consideration of the defend-
ant paying the expenses of the insurance, and
giving him an increased weekly salary while
he remained in his employment. The de-
fendant was interested in the life of the clerk.
In three weeks afterwards the defendant dis-
missed the clerk from his employment without
sufficient cause, and the clerk having died, his
executor filed a bill against the defendant and
the directors of the insurance company, to set
aside the assignment as having been obtained
by fraud, and for payment of the sum secured
by the policy. The directors did not contest
the liability of the company, but paid the
amount of the policy into Court; and were
thereupon struck out of the bill. The case

Obtained by [UNDUE ADVANTAGES. ]

 

Agents, Sc.

set up by the defendant, but not clearly
proved, was, that the policy was effected
wholly for his benefit, although in the name
of his clerk. Held, that the plaintiff was
entitled to the relief prayed, on the terms of
paying to the defendant the sums paid by him
for effecting the policy and premiums, with
interest,

Costs were given to the plaintiff in this
cause, on account of the misconduct of the
defendant in the progress of the suit.—Scott
yv. Roose, 31. E.R. 170. (H.E.)

8. A receiver appointed by the Court is
within the general rule of the Courts of
Equity, by which persons who stand in a con-
fidential relation with regard to property are
precluded from becoming the purchasers of it
without the special leave of the Court; or of
the parties interested Alven v. Bond, Flan. &
K. 196; 31. E. R. 365. (R.)

4. When it was alleged that the agent of
the former owner of estates, devised to ptf.
had, within a few days after the decease,
obtained a conveyance of part of the pro-
perty, in discharge of a settled balance al-
leged to be due to him; and had obtained it
by asserting that he had a secret whereby ptf.’s
title might be impeached; but ptf. had under
legal advice acquiesced, and confirmed the
transaction, and after the lapse of more than
15 years sought to open the accounts on the
ground of fraud—Held, that the bill should
be dismissed.—De Montmorency v. Devereux, 2
Dr. & Wal. 410; 7 CL. & Fin. 188; West, 64 ;
4 Jur. 403. (H.L.)—[Affg. decision in 1 Dr.
& Wal. 119. (C.)]

5. The purchase of an annuity by the ven-
dor’s agent and solicitor, declared to be in
trust for the vendor, because of the relation
which, at the time of the purchase, existed
between the parties—Lawless v. Mansfield, 4
I. E. R. 118; 1 Dr. & War. 557. (C.)—
[Questioned in Blagrave v. Routh, 2 Kaye & J.
509; 8 De Gex, M., & G. 620. (C.)

6. An agent may take a lease from his
principal; but must always be prepared to
prove that full information has been imparted
to the principal; and that the contract had
been entered into with perfect good faith—
Molony v. Kernan, 2 Dr. & War. 31. (C.)

7. A person in the situation of guardian,
agent, receiver and tenant, procured his ward
to execute, immediately upon his coming of
age, to him, a lease of the entire of his pro-
perty, for lives renewable for ever, upon terms
disadvantageous to the ward; it was decreed
to be set aside, notwithstanding that 11 years
had elapsed, since the granting of the lease
before the institution of the suit, Held, also,
that the plaintiff's acquiescence for 11 years
did not bar his right, because he was the
debtor of the defendant, and, therefore, com-
pletely under his control.—A/ulhallen v. Marum,
3 Dr. & War. 317. (C.)

8. In order to set aside a conveyance by a
principal to his agent, it is not necessary to
Obtained by [UNDUE ADVANTAGES.] Guardians, Sc.

prove that the property was sold at an un-
dervalue; and though an agent may purchase
from his principal, he must make a full dis-
closure of all the knowledge which he him-
self possesses with respect to the property. If
there be any underhand dealing, ex. gr., a pur-
chase in the name of another person, however
good the price or fair the transaction in other
respects, it has no validity in a Court of
Equity.— Murphy v. O'Shea, 8 I. E. BR. 329;
2Jon. & L. 422. (C.)

 

VIL. 6. Undue Advantages obtained by Guardian
: over his Ward.

1. A., being about eighteen years of age,
and possessed of considerable real and per-
sonal property, entered a convent, whether as
postulant or pupil was controverted, but upon
an agreement on the part of the nuns that she
should not be professed under age, or without
their apprising her friends previously; and it
appeared that she was professed under age,
and in the absence of all her friends; and
there was no evidence of any notice having
been given to any of them, save an allegation
in the answer of the defendants, that they did
communicate the fact to her sister; and after-
wards, when she arrived at full age, she as-
signed nearly all her property to the nuns, for
the benefit of the convent; and it appeared
that previous to this she had been excluded
from the society of her friends, and that the
deed for this purpose was prepared by the
professional agent of the convent, and that
she had no friend of her own present; and
having, in some time after, quitted the con-
vent, she filed a bill to set those proceedings
aside, for a reconveyance of her real estate,
and for an account—Held, that the transac-
tions in this case fell within the principle of
the cases of guardian and ward, which de-
cide that dealings between them ought not to
stand. Whyte v. Meade, 2 I. E. R. 420.
(4.E.)

 

VII. 7. By Trustee or Executor.

2. A trustee and executor, C., who had
been land agent and receiver to V., his tes-
tator, without settling accounts for several
years, upon V.’s death obtained from the
cestui que trusts and the residuary legatee an
agreement to continue him in the agency, and
in case of his removal without just cause, to
allow him the same salary. He also obtained
a deed granting him part of the trust estates.
The agreement and deed were prepared by C.,
who was an attorney, and were, without legal
advice, executed by the then principal and
the cestuz que trusts. The deed contained an
untrue recital, that it was granted “by last
request of V., in consideration of C.’s ser-
vices,” and also in full discharge of all ac-
counts between them. In eighteen months
the new agency determined by mutual con-
sent. Accounts having been settled to the
satisfaction of the principal’s legal advisers,
he, by deed approved by them, confirmed the
former deed. He afterwards wrote C. letters
claiming the benefit of the latter deed and

 

357

expressing satisfaction at having given the
estate. Held, that the deed of gift, though
voidable in its origin, and unsustainable when
standing by itself, and though impeached
within a reasonable time, was nevertheless va-
lidated by the subsequent deliberate acts of the
party impeaching it, he having been assisted
by legal advisers.—De Montmorency v. Deve-
reuz, 2 Dr. & Wal. 410; 7 Cl. & Fin. 188;
West, 64; 4 Jur. 403. (H.L.)—[Affg. 1 Dr.
& Wal. 119. (C.)]

3. Appellant, having acted for a long time
as counsel and legal adviser of C., had in that
employment acquired an intimate knowledge
of C.’s property and liabilities, and had acted
for him in compromising securities. After the
relation of counsel and client had ceased, and
without notice to C., the appellant bought
those securities at a price less than their no-
minal amount, whilst a compromise was pend-
ing and feasible. Held, that the purchase was
a trust for C., and that the appellant was en-
titled only to the sum which he actually paid,
with the usual interest.— Carter v. Palmer, 1
I.E. R. 289; 1 Dr. & Wal. 722. (C).—[Affd.,
8 Cl. & F. 657.]

4, V. bequeathed a term of years to five trus-
tees, to pay an annuity to his wife for life:
subject thereto to pay named sums for A.’s
maintenance, till he attained age; then to
permit A. to take the profits for life; after
A.’s death to permit such person as would for
the time being take by descent as heir male of
A.’s body to take the profits until some such
person should attain age; then to convey to
that person, his executors, &c., remainder
over. In consideration of faithful services,
A. demised, at an inadequate rent, for 61
years, part of the premises to C., one of the
trustees, who was A.’s agent. Held, that C.,
being a trustee, was not at liberty to take
from the tenant for life an interest greater
than he was authorised to grant under the
leasing power; that he committed a breach of
trust in thus obtaining this beneficial lease ;
and that it could not be sustained.—Kerr v.
Lord Dungannon, 1 Dr. & War. 509; 1 Con. &
L. 335. (C.)

VII. 8. Undue Advantages obtained by Spiritual
or other Advisers, Sc.

5, An assignment of their distributive shares
of their father’s assets was obtained from two
nuns, in trust for the convent. Declarations
of the assignors were proved, showing that the
deeds were executed by them against their
will, and under the influence and spiritual
terror of their vows. The deeds contained a
power to put in an answer for them. The
assignees filed a bill to recover the shares,
making one nun aco-plaintiff and the other a
defendant, neither of whom objected to the
deeds in this suit; but the same declarations
proved it to be without their concurrence, and
the objection, that the deeds were extorted
was made by the other defendants. The plain.
tiffs declining an issue whether the deeds
358

were freely executed, the bill was dismissed
with costs.—I‘ Carthy v. M°C., 9 I. E. R. 620.
(C.)—[Revd., 1 H. L. Cas., 708, so far as it
directed an issue; but affirmed so far as it
dismissed the bill. ]

VII. 9. How far Lapse of Time affects such

Frauds.

1, When a person in the situation of guard-
ian, agent, receiver, and tenant, procured his
ward to execute, immediately, on his coming
of age, a lease to him of the entire of his pro-
perty, upon terms disadvantageous to the
ward, it was Held that the lease should be set
aside, notwithstanding that a period of eleven
years had elapsed since the granting of the
lease, before the institution of the suit.

On account of the delay which had taken
place, the account of profits was directed only
from the filing of the bill.

Held, also, that the plaintiff’s acquiescence
for eleven years could not be considered as
barring his right, because he was the debtor
of the defendant, and, to a great extent,
within his power—Mulhallen v. Marum, 3 Dr.
& War. 317. (C.) :

2. Ptf., entitled under her father’s will, and
an appointment by her mother, his executrix,
being in embarrassed circumstances, with-
out professional advice, and ignorant of the
amount of her claims, was induced, in 1833,
by C., her solicitor, to convey to him all her
rights, which he represented to be one-half of
their true amount. The consideration was a
rentcharge on these lands, payment to be per-
sonally secured by him. C. drew the deed,
which did not contain any clause of re-entry,
or covenant to pay. A non-alienation clause
was inserted, it was alleged, by fraud. In
1836, C. ceased to pay. In 1845 this bill was
filed to set aside the deed, and carry into exe-
cution the trusts of the will; for an account
of testator’s property, so far as necessary to
ascertain ptfs. rights; and, if necessary, an
account of the mother’s personalty. B., exe-
cutor of the mother, and administrator de bonis
non of the father, was made a party. The
trustee of the father’s will was not. Ona
demurrer filed by C., Held, that the interval
(being less than twenty years) since the exe-
cution of the deed could not be set up by him
on demurrer ;—that, if it could, the case was
one of actual fraud, and that time would not
bar.—O’Kelly v. Glenny, 91. E.R. 25. (R.)

3. Release of an annuity given by an illite-
rate person, without professional assistance,
and for inadequate consideration, set aside
after several years; the price being held inade-
quate as to the defendant, by whose cove-
nant the annuity was secured, although,
considering the nature of the security, it might
not have been so from a stranger.— Garvey v.
M*Minn, 91. E. R. 526. (C.)

4. An administrator cum test. an., being in
possession of premises which the testator had
held as tenant from year to year under C.,

Effect of [FRAUDULENT ADVANTAGES.}

 

Time on.

took a lease from D., the head landlord, to
commence from the expiration of C.’s lease.
eld, that the lease was a graft on the testa-
tor’s interest, and formed part of his assets.—
M*‘Auley v. Clarendon, 81. C. R.121. (R.)—
[Affd. abéd. 568. (C.A.) Dr. Rep. temp, Na-
pier. 433.]—[Approved of: Eyrev. M‘Dowell,
71. Jur. N. 8. 41. (H.L.); 9 H. Lds. Cas. 619.]

 

FRAUDS, STATUTE OF.
[29 Car. 2, v.38. See9 G.4,c. 14]

(Respecting a Plea or other defence of the Statute.
See Preapine, PLEA—PLEADING, STATUTE.)
I. As iv arrects AGREEMENTS,
1. The validity of Agreements under the
Statute.
2. The effect of part performance on the
operation of the Statute.
Il. As it arrects WILLs anp DEvISEs.

Ill. As rr arrects Usrs anp Trusts, AND
THE DECLARATIONS THEREOF.

IV. As 1T arrects SURETYSHIP.

 

I. 1. Validity of Agreements under the Statute.

5. Semble—The signature of the party to be
bound is sufficient to satisfy the Statute of
Frauds, so as to enable the Court to enforce
specific performance.—Field vy. Boland, 1 Dr.
& Wal. 37. (C.)

 

FRAUDULENT ASSIGNMENTS, CON-
VEYANCES, AND DEVISES.

See Bankruptcy, XI—Drrps, V—Sratvtes,
Construction or, [I—Srrriement, I.

 

FRAUDULENT AGREEMENT, CON-
TRARY TO SETTLEMENT.

See SETTLEMENT, VI.

 

FRAUDULENT TRUST.
See Trusz, VII.

 

FRIENDLY AND BENEFIT SOCIETIES.

See Jurispiction, X1I—Strarures, ConstTRuc-
TION oF, II.

 

_ FUND.
— To pay Debts. See Execurors, XI. '
— In Court. See Practicn, Funp 1x Court.
— Charitable. See Cuanrity.

 

FUNERAL EXPENSES.
See Executors, VI.

 

FURTHER ASSURANCE.
See Covenant, IX.
[GENERAL ORDERS—THEIR CONSTRUCTION. ]

FURTHER ANSWER.
See Practice, ANSWER.

 

FURTHER EXCEPTIONS.
See Preapine, ANSWER.

 

FURTHER EVIDENCE.
See Practicr, EVIDENCE.

 

FURTHER DIRECTIONS,
See Practice, FurtHer Directions.

 

FUTURE PROPERTY.
— Settlement of. See SerriEment, III.

 

FUTURE DEBTS.

— Proof for. See Banxrurrey, XIII.

 

\

GAME.

See 23 & 24 Vic., c. 90; 24 & 25 Vic., c. 96;
28 & 26 Vic. c. 114; 26 Vie. c.19; 26 & 27
Vic, c. 113; 27 & 28 Vic., cc. 67, 115.

 

GAMBLING AND GAMING.
See Bankruptcy, XVI, passim—Sratvrss,
Construction oF, II.

See 8 & 9 Vic., v. 109; 16 & 17 Vic. c. 119; 17
& 18 Vie., cc. 38, 90.]

 

GAVELKIND.

 

GAZETTE.
— Advertisement in See Banxrourtcy, VI.

 

GENERAL ORDERS.

Turrr CONSTRUCTION — OBSERVATIONS ON
THEM.

— Respecting Answers. See Practicz, An-
SWER.

—As to dismissing Bills.
Bitis, Dismissau oF.

— Respecting Decrees. See Practicz, Dz-

See Practice,

CREE.

— Respecting, Demurrer. See Practice, Dr-
MURRER.

— Respecting Affidavits. See Practice, Ev1-
DENCE.

— Respecting Commission to Examine. See

: ibid.

— Respecting Depositions. See ibid.

— Respecting Injunctions. See Practice, In-
JUNCTION.

 

359

— Respecting Exceptions to Report. See Prac-
tick, Master, REFERENCE TO.

— Respecting Motions. See Practice, Mo-
TION.

— Respecting Orders. See PRACTICE, ORDER.

— Respecting Petition See Practicz, Prti-
TION.

— Respecting Pleas. See Practicy, Prza.

— Under the Chancery Regulation (Ireland) Act,
1850. See Practice, Cay. Reen. Act.

— Respecting Attestation of Bankrupt’s Petition.
See Bankruptcy, XVII.

 

I. Construction oF GENERAL ORDERS.

Il. GenpraL ORDERS UNDER THE Cr. or Cay.
(Irevanp) Reeuration Act, 1850.

 

I. Inisx.

1. Answer, Plea, Demurrer.

2. Bill, Dismissal of ; Amendment of.

3. Cases of Appearance; Exceptions, &c.,
generally.

I.1. Answer, Plea, Demurrer.

1. The General Orders are to be regarded
as part of the statute under the authority of
which they were made, and not to be departed
from on special considerations; but bind the
Court, unless some conduct of the party in-
sisting on them disentitles him from relying
on them.—Davies v. D., 101. E. R. 614. (C.)

2. G. Orders are not so absolutely binding
on the Court that they cannot be in any in-
stance relaxed. The general merits of the
case, and the like, are not grounds for depart-
ing from them, but only the conduct of the
parties or events in the course of the suit. If
in the case there appear the ordinary grounds
of equitable relief, such as fraud, surprise, or
accident, the Court may give relief against
the strict construction of the Orders.

A., defendant, answered in Feb.: other de-

.| fendants answered in April, on whose answer

it was necessary to move for documents,
which were not produced, pursuant to the
order made, until August. In Oct., A. served
notice to dismiss the bill under the 82nd
Order; and the plaintiff served notice for
liberty to make amendments rendered neces-
sary by the answer anddeeds. The Court re-
fused to dismiss the bill—Downing v. Hodder,
121 E.R. 3871. (C.) ,

18th General Order of March 1843.

3. As to costs of Appearance, &c.—Peyt
v. Browne, 2 Jon. & L. 560. (C.) ae

 

36th and 79th General Orders of March 1843.

4. As to insufficiency of Answers.

Where a plaintiff failed to show any title
whatever to the relief prayed — Held he
could not except to the answer for insuffi-
ciency in not affording a discovery in aid of
360

an account, the right to which depended on
that title.

Semble—When a bill is demurrable in sub-
stance, by reason of a total want of setting
out of title to the relief prayed, the 36th and
79th G. O. enable a defendant to decline or
omit answering any interrogatory relating to
matters connected with the relief prayed, or
the title to it.

Quere—Whether in such case defendant
might so decline answering other parts of the
bill; and whether, if a bill be demurrable on
any grounds, he may so decline, according to
the decisions of Wigram, V.-C., in Tipping v.
Clarke, 2 Hare, 383; and Drake v. Drake, 2
Hare, 647; Kaye v. Wall, 4 Hare, 127 ?—Rus-
sell v. Beakey, 81. E. R. 559. (R.)

45th General Order of March 1843.

1. As to Answers to Interrogatories, &e.—
Millar v. M., 61. E. R. 308. (R.)

62nd & 64th General Orders of March 4848.
2. Atkinson v. Wright, 6 I. E. R. 382. (R.)

66th General Order of March 1843.

3. As to Sufficiency of Pleas.

The 66th G. O. has repealed the old rule of
pleading, which overruled the plea in all cases
in which the answer gave any discovery from
which the plea, if allowed, would have pro-
tected the defendant.—Hughes v. Taylor, 7 I.
E.R. 80. (R.)

4. G. O. 66 does not extend to plea and
demurrer.—Baylee vy. Browne, 10 1. E. R. 180.

5. Deft. not appearing on hearing of his
demurrer; G. O. 64.—Purcell v. Buckley, 10 I.
E. R. 213. (R.)

6. A deft., by his answer, objected to an
interrogatory, because he might, by answering
it, subject himself to pains, penalties, and for-
feitures ; and, by a plea, declined to answer a
part of the former interrogatory, because the
subject thereof came to his knowledge in the
character of solicitor to the otherdeft. Held,
that the answer being equivalent to a demurrer,
the case did not come within G. O. 66, and
that the answer overruled the plea—Aelly v.
Jackson, 13 J. E. R. 129. (R.)

 

I. 2. Bill—Dismissal and Amendment of.

7. The G. O. of the Court, directing the
receiver to pay the tithe rentcharge, amounts
to an order to pay in each particular case.—
Brown v. B., 2 1. E.R. 409. (E.E.)

8. The G. O. of June 1842, with respect to
judgment creditors, does not apply to suits in
which a decree had been pronounced before it
was made.— Montgomery v. Southwell, 51. E. R.
71; 3 Dr. & War. 171; 2 Con. & L. 263. (C.)

 

[GENERAL ORDERS—THEIR CONSTRUCTION.]

9. G. O. of 22nd June 1842, is not to have
the effect of involving plaintiffs in the account
of the sums due on incumbrances puisne to
their demands.—Davis v. Rowan, 2 Con. & L.
154. (C.)

10. The 7th G. O. in Bankruptcy applies to
equitable mortgages.—Jn re M‘Cullagh, 11 I.
E. R. 466. (C.)

11. Proceeding under the 11th New G. O. of
1843.—Porter v. Magee, 71. E. R. 307. (E.E.)

12th General Order of Murch 1848.

12. If a bill be irregular in consequence of
the interrogating part not being divided or
numbered, the proper course is to stay the pro-
ceedings, and not to move to take it off the
file—Burne v. B., 9 I. E. R. 205. (R.)

13. The 12th and 14th G. O. of 1843. These
apply to supplemental, as well as to original
bills.— Zommey v. White. 6 I. E. R. 308. (R.)
—[See Tommey v. White, 6 Cl. & F. 786; 1H.
L. Cas. 160; and 51. Jur. 321 (H. L.); 3H. L.
Cas. 1.]

 

14. Astowho should be Notice Parties under
G. O. of 1843.—Rutledge v. R., 81. E. R. 84;
3 Jon. & L. 307. (C.)

14, When parties, against whom the bill does
not seek any direct relief, reside beyond the
jurisdiction, the proper course is to pray sub-
pena against them, with liberty to serve them
with notice under G. O. 15. The Court may
then give leave to serve the subpeena, and the
notice on the deft. out of the jurisdiction,
pursuant to G. O. 22.—Fulton v. D’ Orsay, 5
I. E.R. 279. (R.)—[See s. c. 7 1. E.R. 482.]

16. The 15th, 22nd, 23rd, 24th, 25th, and 26th
G. Orders of March 1843, are prospective, not
retrospective After decree in a mortgage
cause, judgment creditors were by supple-
mental bill made parties, in the mode prescri-
bed by the 15th G. O. of March 1843. Being
served with the notice under that order, some
of them entered special appearances; the
others did not appear. The Court refused the
plaintiff's motion for an order binding them by
the proceedings in the original cause; and
Held, that they could not be bound by these
proceedings otherwise than by a decree inthe
supplemental cause.— O’Brien v. Creagh, 6 I.
E.R. 129. (R.)—[See s. v. 8 I. E. R. 557.)

17. Creditors by judgment and recognizance,
though scheduled to a trust deed executed for
their payment, are within G. O. 23, and may,
by notice, be made parties to a suit instituted
to carry the deed into execution by sale.—
Harvey v. Lawler, 3 Dr. & War. 168. (C.)

 

15th, 22nd, 23rd, 24th, 25th, and 26th General
Orders of March 1843.

18. The Court having decided that the plain-
tiff was entitled to an annuity on the lands of
G., on which persons not parties to. the suit
were entitled to a charge; and a question of
[GENERAL ORDERS.]

priority having arisen between the plaintiff
and them, the cause stood over to make them
parties. Held, that they must be made an-
swering parties, and that it was not sufficient
to serve them with notice under the 15th G.
Rule of March 1843.

Leave given to the plaintiff to move for a
receiver in a suit defective for want of parties.
—Sullivan v. S., 8 I. E.R. 72. (C.)

1. The 15th G. O. of 1843, applies to the
appointment of a receiver under the Judg-
ment Acts; and not to the extension of one
already appointed.— Taylor v. Emerson, 7 I. E.
R. 280. (R.)

2. Quere—Is the service of notice under the
15th G. O. a waiver of any right to seek relief
against the party ?—Harpur v. Boyd, 8 I.E. R.
456. (R.)

8. When judgment creditors out of the
jurisdiction are Peers, it is not necessary that
they should be served with a copy of the bill,
along with the letters missive; the 15th G. O.
is applicable to the case of all parties who
should otherwise have answered. Colvan v.
Gregg, 81. E.R. 591. (R.)

4, When two or more persons are appointed
trustees, and one or more renounce and
disclaim, the trust may be executed by the
others.

Semble—Legatees, whose legacies are char-
ged on real estate, are necessary parties to a
bill for a sale of such estate in cases not pro-
vided for by the 24th, 25th and 26th G. O.

Semble—A defendant who has answered the
original bill may take a demurrer applying to
the whole of the amended bill, if the objection

361

defts. who have been served out of the juris-
diction, and setting down cause for hearing
pro confesso—Fitz Gerald v. Quinlan, 12 I. E. R.
393. (H.E.)

7. When a judgment creditor out of the
jurisdiction has been served with subpoena
and notice under the 22nd and 15th G. O.,
and the memorandum entered under the 16th
G. O., it is not necessary to enter a parlia-
mentary appearance and take the bill pro con-
jesso against the party, in order to bind him
by the proceedings.—Burroughs v. Molloy, 7
ILE.R.6. (RB)

8. A joint judgment against two cannot be
proved under a decree to account in a suit
instituted to administer the real assets of the
conuzor who died first; the surviving conuzor
not being, as such, a party to the suit. The
case does not fall within the 28th G. O. of
March 1843.—Hatchell v. Sutton, 2 Jon. & L.
21. (C.)

81st and 33rd General Order of 1843.

9. As to entering appearance by deft. Sem-
ble—When an order is made under the general
authority of the Court, to substitute service
on the solicitor of a defendant, such defend-
ant residing out of the jurisdiction, the service
is to be considered a service within the juris-
diction, and the defendant must appear and
answer within the time limited by the 31st
G. O., as mentioned in the notice.—Johnston
v. Tottenham, 111. E. R. 271. (R.)

 

 

88rd General Order of 1843.

10. Amending side-barrule for parliamentary
appearances.—Lgan vy. Nolan, 11 I. E. R. 385.

for the first time appears on the bill as|(R

amended.

A testator directed three trustees named in
his will, out of the residue of his real and free-
hold estates, in aid of personal estate, by sale,
mortgage, or perception of the rents and
profits, to levy legacies for his children, A.,
B., andC. One of the trustees renounced. A
bill was filed to administer the real and
personal estates of the testator; and to make
them liable for a breach of trust, to which the
two acting trustees were parties, and which
charged A., B., and C. to be out of the juris-
diction, but did not pray process against them.
On a demurrer for want of parties—Held, that
the legal estate being in the two acting
trustees, the case was within the 24th G. O.,
and A., B., and C. were not necessary parties
to the suit.—Bayly v. Cumming, 10 I. E. R.
405. (R.)

5. In an administration suit by one of the
next-of-kin of an intestate, the other next-of-
kin are within the 15th G. O., and the plaintiff
must pay their costs if they are required to
answer. The objection need not be made at
the first hearing.— Beddy v. Smith, 111. E. R.
467. (C.)

6. Entering parliamentary appearances for

 

11. When a defendant is served with sub-
peena in Ireland, the Court has no jurisdiction
to order that a parliamentary appearance be
entered for an adult defendant, or that the
Clerk in Court should be appointed to appear
and answer for a minor defendant after the
fourteen days specified in the 33rd Rule have
expired; the side-bar order not having been
entered within such fourteen days.—Anony-
mous, 11 I. Iu. R. 584. (R.) Se

12. When there are several defts., of whom
one only has been required to answer the
amendments, the proper course is to move to
have the bill taken as confessed, but not to
set down the case for a decree pro confesso
under the 34th G. O.— Walker v. Daly, 10 I.
E. R. 232. (R.)

 

36th General Order of 1843.

13.. Exception tothe report of the Master.—
Leech v. Law, 11 J. E. R. 186. (C.)

 

47th General Order of 1848.

14. When the objection for want of parties
is clearly untenable, ptf. should not set down

46
362

the cause under the 47th G. O— Whittle v.
Halliday, 4 Dr. & War. 267; 2 Con. & L. 430.
(C.)

1. Trustees to the separate use of a married
woman must be made answering parties to a
bill seeking relief against her separate pro-
perty. When they were notice parties, the
Court refused to make a decree saving their
rights, under the 48th Rule.—Pepper y. Kelly,
81. E.R. 502; 2 Jon. & L. 558. (C.)

2. Striking the name of a plaintiff out of
the bill is not an amendment by Side-bar Rule
within the 49th G. O. (1843). —Vance v. Ran-
Surley, 11. Sur. 284. (R.)

38. In a suit by married women in relation to
their separate estates, in which their husbands
were made co-plaintiffs, leave given after an-
swer to amend, by striking the names of the
latter out of the bill as plaintiffs, and making
the assignee of one who had become bank-
rupt and the others defendants. The amend-
ment does not come within the 50th G. O., so
as to make it necessary for the plaintiff to
join in the affidavit with the solicitor.— Greer
v. G., 8 I. E.R. 33. (R.)

4. The answer mentioned in the 49th and
50th G. O. means an answer to the original
bill.— Nolan v. Ball, 8 I. E. R. 573, (R.)

5. When a bill has been amended once,
after a demurrer allowed, otherwise than “for
the purpose of rectifying any clerical error, or
an error in names, dates, or sums,” it cannot
be amended a second time in matter of sub-
stance, without the leave of the Court upon
special motion.

Three demurrers had been put into the bill,
each by a different defendant. They were
allowed, and the bill was amended after each
demurrer in matter of substance. Held, upon
the construction of the 49th, 50th, and 64th
G. O., that the amendments (except the first)
were irregular, same having been made with-
out the leave of the Court upon special mo-
tion; and an amendment having been made
after the first demurrer was allowed, which
amendment was not for the purpose of rec-
tifying a clerical error or an error in names,
dates, or sums.—Fitzpatrick v. Lidwell, 10 I. E.
R. 31. (R.)

6. The death of a defendant, and the pend-
eney of proceedings to raise a personal repre-
sentative, are such special circumstances as
will induce the Court to relax the 50th G. O.
(1843), and permit a second amendment more
than six weeks after the last answer is filed.—
Clelland v. Kerr, 21. Jur.99. (R.)

7. What amendments regular, and not
within the 50th G. O. (1843).—Slevin v. Doyle,
21. Jur. 169. (R.)

8. A formal amendment allowed after the
bill taken pro confesso, without having applied
under the 5lst G. O.—WMartley v. French, 9
I E.R. 4. (&.)

 

[GENERAL ORDERS.]

52nd General Order of 1848.

9. Leave given to amend the bill, without
prejudice to the time for answering, under G.
O. 52, in a matter varying the relief prayed,
no copy of the bill having been taken out,
and the motion being unopposed.

Quere—Would leave have been granted if
the motion had been opposed ?—Law v. Moore,
101. E. R. 205. (R.)

10. Since the New Rules, leave will be given
to amend the bill, though the subject-matter
of the amendment occurred after the bill was
filed.— Birch v. Walsh, 101. E. R. 221. (R.)

11. As to amendment of bill under the 52nd
G. O. of March 1843.—Greer v. G., 71. E. R.
72. (R.)

12. Billamended by striking out a defendant.
No answer by deft. Motion to take the bill
pro confesso, refused.

Striking out a defendant is not such an
amendment as will entitle a defendant to
further time to answer under the 52nd G. O.—
Gouldsberry v. G., 21. Jur. 52. (R.)

 

58rd General Order of 1848.

13. Answer to amended bill.—Scott v. S., 9
I. E.R. 451. (R.)

55th General Order of 1843.

14. As to nature of amendments of Dill al-
lowed.

The object of the rule is, to oblige the
plaintiff to state the whole of his case in one
bill, and to prevent the expense of taking
out copies of several and successive amended
bills; so that the amended bill becomes the
only bill, and states the case in full, without
reference to an original bill; when this sub-
stitution becomes impossible the rule does not
apply.

The rule applies to cases where matters
remain as they were when the bill was filed,
and not to cases in which subsequent events
make it necessary to continue the suit as
originally on the record.— Harnett v. Harring-
ton, 71. E. R. 502. (R.)

 

15. When a personal representative snes or
is sued, and dies, the administrator de bonis
non may proceed or be proceeded against by
bill of revivor, or by bill of revivor and sup-
plement. But he is not bound so to frame
his bill; he may at his election file an original
bill.

An administrator obtained a decree declar-
ing to be held on trusts a judgment which
afterwards was fraudulently assigned. The
administrator de bonis non filed a bill stating
at length the proceedings in the original suit,
making the assignee a party, and praying
that he might be declared entitled to the
benefit of the decree, accounts, and inquiries
thereby directed; and to an assignment
of the judgment or original relief, if he was
not entitled to the benefit of the suit and
decree. Held, on demurrer, that the bill,
being an original bill as to the assignee, the
[GENERAL ORDERS.]

plaintiff could not have proceeded by bill of
revivor; and although the bill might have
been framed as a bill of revivor and supple-
ment, as against the representative of the
defendant in the original suit, it was sustain-
able as against him, either as an original
bill or an original bill in the nature of a
supplemental bill.

The 57th G. O. does not apply to! an origi-
nal bill in the nature of a supplemental bill —
a vy. O'Shaughnessy, 12 I. E. R. 63.

1. Permission to plead, notwithstanding
the 64th G. O.—Lewin v. L., 9 I. E. R. 638.

(R.)

65th and 66th General Orders of 1843.

2. These Orders apply to partial demurrers
and partial pleas only; and not to demurrers
and pleas to the whole bill—Jstzmaurice v.
Sadler, 12 I. E. R. 136. (R.)

 

8. Under the 75th Gen. Order of 1843, the
plaintiff has six weeks to except to the an-
swer to an amended bill for insufticiency.—
Garvey v. Hayes, 111. E. R. 270. (R.)

4. Exceptions for insufficiency, signed by
counsel, but no certificate was affixed to them
pursuant to the 74th G. O., allowed to be
amended by affixing the certificate, on the
statement of counsel that the omission was
accidental, and that the exceptions were te-
nable, the plaintiff paying the costs of the
motion.—Massy v. Graham, 10 I. E. R. 207.

(R)

 

i 81st General Order of 1843.

5. Statements of the object and policy of
this Order, and of the considerations by which
the Court’s discretion to grant or to refuse
applications for further time to proceed, is
governed.— Mills v. M., 6 I. E. R. 106. (R.)

6. A suit, to the prosecution of which
there was no obstacle, remained dormant
and, apparently, abandoned during several
years. But for the lis pendens the demand
would have long ago been barred by the
Statute of Limitations. An application on
behalf of the minors for further time to pro-
secute the suit was refused, the case being
within the 81st G. O. of 27th March 1843.—
Callanan v. Blake, 61. E.R. 100. (R.)

7. The 81st G. O. of 1843 was not intended
to apply to a suit which was being actively
prosecuted when the new Orders were made.—
Farrell v. Kemmis, Dr. Rep. temp. Sugden, 205,

(C.)

8. The 81st G. O. does not apply to a case
in which a receiver has been actually in re-
ceipt of the rent, and orders have from time
to time been made in the cause.—Mara v.
Tibeaudo, 71. BE. R. 556. (R.)

9. The bill stated that the executors and
others answered the bill of 1808, but the

 

363

devisees of the real estate “stood out process
of contempt; and thereupon a decree on se-
questration was obtained against them.” The
nature of the decree was not stated. After
the decree, the party against whom it was ob-
tained died. A bill of revivor and three
amended bills were filed against W., who
derived under the party against whom the
decree on sequestration was obtained; but
the suit was never brought to a hearing
against any of the defendants who had an-
swered. By the practice of the Court, during
the pendency of such former suit, an absolute
decree on sequestration could not be obtained
against a party until the suit was heard against
the answering defendants. Held, that the
statement in the bill,—that there was “ a de-
cree on sequestration,” must be taken to be a
conditional decree, which, upon the facts
stated, was the only decree which could, ac-
cording to the practice of the Court, have
been obtained; that such conditional decree
fell to the ground by the death of the party
against whom it was obtained, and the subse-
quent proceedings against W.; and that W.,
who had demurred to the present bill, was not
precluded by such statement, that there was
“a decree on sequestration,” from relying on
the Statute of Limitations.

That such conditional decree did not pre-
vent the operation of the 81st G. O., and that
the suit of 1808 was dismissed, before the pre-
sent suit was instituted, by its operation.

That the statement, that there had been
“a, decree on sequestration,” without stating
what that decree was, and which might have
been consistent with the relief now prayed,
was altogether vague and uncertain, even
though it were to be considered to have been
an absolute decree.

That the defence of the former Statute of
Limitations (8 G. 1, c. 4) might have been
relied on by demurrer to the bill of 1808.
That statute being now repealed, and there
being nothing on the face of the bill to show
that the judgment of 1781 was not barred
when the bill of 1808 was filed, the present
plaintiff could derive no benefit from such
suit.

That the appointment of a receiver in a
cause will not (except under particular cir-
cumstances) take the case out of the opera-
tion of the 8lst G. O., whether as relates to
the lands or the funds brought into Court by
the receiver— Young v. Wilton, 10 I. E. R.
10. (R.)—[Affd., 10 I. E. R. 265. (C.)

10. The G. Orders of the Court are to be re-
garded as part of the statute under the autho-
rity of which they were made, and not to be
departed from on special considerations, but
bind the Court, unless there is something in
the conduct of the party insisting on them
which disentitles him from relying on them.—
Davies v. D., 101. E. R. 614. (C.)

11. Amendments of the bill had been pre-
pared by counsel before, but were not made
until after notice to dismiss the bill for want
of prosecution. Held, no answer to the mo-
tion. —Mark v. Willington, 11 I. E.R. 269. (R.)
364

1. In 1839 an order of reference was made
(in a suit instituted in the Equity Exchequer,
in 1830, in which there had been no decree),
to take an account of the sum due to the
plaintiff, the defendant undertaking to pay it.
A report was made, finding the sum due,
which the defendant did not pay. After the
suit was transferred to the Court of Chancery
by the 13 & 14 Vic., c. 51, the plaintiff moved
for the appointment of a receiver. Held, that
the suit was not dismissed under the 81st
G. O. of 1843.—Huggard v. Lynch, 2 1. C. R.
143. (R.) }

2. A fund ordered to be paid to the survi-
ving plaintiffs, in an injunction suit, abated
and dismissed by the Slst Order of 1843.—
Thomas v. T., 31. C. R. 399. (R.)

 

82nd & 83rd General Orders of 1843.

3. In suits which have not been heard by
the Court on the pleadings, although the ori-
ginal bill was filed ten years before the date
of the 83rd G. O., ptf. has thereunder nine
months from its date to bring the cause to a
hearing.—Brown v. M‘Clintock, 5 I. E. R. 278.
(R.)

4. G. O. 83 (1843) will not be relaxed.
Amendment not allowed and bill dismissed.
—M‘Laughlin v. M‘L., 8 I. E. R. 109. (R.)

5. Under the 88rd G. O. the defendant is
entitled to dismiss the bill for want of prose-
cution, though the plaintiff has entered and
served the rule for publication, unless he also
set down the cause within the time prescribed.
Hamilton v. AL‘ Cormick, 8 I. E. R. 582. (R.)

6. A deft. answered in Feb. Other defts.’

answered in April. On their answer it be-
came necessary to move for documents. Pur-
suant to the order made on that motion, these
documents were produced, but not until
August. In Oct. notice was served to dismiss
the bill under G. O. 82, and ptf. served a
notice for liberty to make amendments ren-
dered necessary by the answer and the docu-
ments. Held, that the bill should not be dis-
missed.—Downing v. Hodder, 12 I. E. R. 371.

(C.)
7. A deft. may move to dismiss a bill under

G. O. 83, after publication passed.—Harrison
y. Mason, 13 1. E. BR. 83. (R.)

 

86th General Order of 1843.

8. The ten days’ notice to be given of ex-
amining witnesses is exclusive both of the day
of serving the notice and of the day named
for commencing the examination. The Court
is not bound to suppress depositions in every
case of irregularity.—Att.-Cen. v. Ball, 9 I.
E. R. 463. (R.)

 

93rd General Order of 1843.
9. Under the 93rd G. O. (1843) the term
“Vacation” is referable to the period when

the Court is not sitting. —Anderson v. Mulvany,
11. Jur. 154. (R.)

 

[GENERAL ORDERS.]

94th General Order of 1848.

10. Under the 94th G. O. (1843) ten days
must intervene between the day of service of
a subpcena to hear judgment, and the first da
of the ensuing Term.—Mahony v. O’ Connell;
M*‘Dermott v. O’ Connell, 11. Jur. 265. (R.)

 

97th General Order of 1843.

11. When the defence was, that the deed of
assignment, under which the plaintiff claimed,
was executed after bill filed, and was in trust
for the assignor against whom the defendant
filed a cross bill—Held, that the assignment
could not be proved by affidavit at the hearing
under the 97th G. O.—Joly v. Swift, 91. E.
R.195; 3 Jon.&L. 126. (C.)

 

98th General Order of 1843.

12. The 98th G. O.(1843), limiting the time
for application to amend a decree to six days
after the decree has been pronounced, will be
construed strictly ; the only remedy is by peti-
tion to re-hear.— O’ Neill v. Jones, 5 I. Jur. N.
S. 208. (C.)

 

102nd, 103rd § 105th General Orders of 1843.

13. As to amending decree.—Bradley v.
Davis, 111. E. R. 134. (C.)

14. What case within the 102nd G. 0.?
Semble—That rule only applies to a surplus
fund, after all the creditors in the cause have
been paid off— Hynes v. Redington, 2 I. Jur.
82. (R.)

15. An order made on petition under G. O.

102, should direct the Master to advertise for

creditors, when the original decree only di-
rected an account of incumbrances prior to,
and contemporaneous with, ptf’s. demand.—
Plumptre v. O'Dell, 12 I. E. R. 308. (R.)

16. The Court is not bound to make an
order under the 102nd G. O. in favour of a
puisne incumbrancer.—Heenan v. Berry, 11 I.
E.R. 587. (R.)

17. When, by mistake in the draft report
under a decree to account, a judgment was
entered as of 1834 instead of 1833, and the
Master seeing it so entered found the priori-
ties accordingly, and a final decree was made
confirming it—Held, that the error could not
be corrected under the 108rd G. O.; but
liberty was given to go before the Master to
have the report amended nunc pro tunc.—
O’Brien v. Creagh, 8 1. E. R. 557. (C.)

18. Practice under the 105th G. O. in issu-
ing a sequestration, when there has been no
attachment.—Zn re Powell, 7 I. E. R. 452. (C.)

 

106th General Order of 1843.

19. It is inapplicable when the rate of in-
terest has been defined by decree.— Baldwin
v. Belcher, 61. E. R. 428; 1 Jon. & L. 18. (C.)
a

(GENERAL ORDERS. ]

1. G. O. 106 does not apply when a decree
to account has been obtained so far back as
25 years ago, and the suit has been abated and
revived several times since.— Cavanagh v. Blake,
8LE.R.515. (E.E.)

 

117th General Order of March 1843.

2. The Master’s jurisdiction to transfer the
carriage of the decree.—Forbes v. Pearson, 8
I. E.R. 35. (R.)

3. A conditional order for an attachment
was granted against a tenant to the Court for
non-payment of rent. On motion to show
cause, a reference was directed to the Master
to ascertain the amount due. The carriage
of this order was given to the petitioner in the
cause, who delayed proceeding thereon. On
a motion to the Rolls by the tenant, that the
cause shown should be allowed, and for the
costs of the original motion to show cause,
the petitioner having proceeded on the order
of reference after the service of the notice of
motion—Held, that the proper course for the
tenant was to have applied to the Master
under the 122nd G. O. of 1848, for a report
that the petitioner had not proceeded on the
order; that no rule should be made on the
motion; and that each party abide his own
costs.—Agar v. Phaire, 1 I. Jur. N. 8. 43. (R.)

 

128th General Order of 1843.

4, Discharging notice with costs for non-
appearance.—Bigley v. King, 10 I. E. R. 174.
(E.E.)

5. Where an objection is overruled by the
Master, under the 134th General Order, no ex-
ception can be taken,

Exceptions by parties not interested in sup-
porting them, though so taken to save ex-
pense, are objectionable.—Smith v. Chichester,
121. E.R. 519. (C.)

 

137th, 188th § 139th General Orders of 1843.

6. This Court has power on motion to re-
view a report confirmed by the operation of
the 137th G. O.—Evans v. O'Dell, 11 I. E. R.
340. (R.)

7. Mortgagee’s solicitor at the time of the
loan perused the title deeds, and was paid the
costs therefor by the mortgagor. After the
decree for sale in the mortgage cause, the
same solicitor prepared the abstract of title
under the 138th G. O., which, though dedu-
cing the title to the time of sale, did not con-
tain any new deeds. The Master having re-
fused to allow the costs of perusing the deeds,
the Court refused to send back his taxation.—
Scott v. King, 71. E. R. 483. (R.)

8. The purchaser of lands sold under the
decree of the Court is not entitled, before the
title has been accepted by him, to see the
opinion of counsel on the statement of title,

iven pursuant to the 138th G. O.—Stack v.
Daas 101. E.R. 102. (R.)

9. When a property was set up for sale by

 

865

an auctioneer in the country, first in lots,
then part of it in batches of some lots toge-
ther, then the whole together, the auctioneer
having stated that he would receive biddings
and that the Master would declare the pur-
chaser, a person (the highest bidder for a
batch of some lots, and afterwards for the
whole) was held to his bidding for the lots,
though he was misled by the mode of selling,
and intended to bid for the whole.

When a sale is had in the country under the
139th G. O., the bidders are not entitled to
have notice of the confirmation of it by the
Coe y. Brady, 11 I. E. R. 400.
C.

148rd et seg. General Orders of 1843.

10. Theterms of the 148rd G. O. (prohibit-
ing the appointment of a solicitor’s clerk or
agent as receiver) are general, and are not
confined to clerks or agents of the solicitors
in the cause or matter—In re Stokes, 7 I. E.
R. 450; 1 Jon. & L. 675. (C.)

11. The 148rd G. O. applies as well to the
extension, as to the appointment of a re-
ceiver. Where a solicitor’s clerk was ap-
pointed a receiver before the making of the
order, he will not be extended to other lands
of the debtor, on the application of another
judgment creditor.—Meara v. Egan, 9 1. E. R.
259. (R.)

12. Under the 145th G. O. the Master has
fot jurisdiction to give allowance or compen-
sation to a tenant for improvements.

A tenant for a term pending the cause, will
not be allowed for improvements made without
sanction of the Court, on notice to all parties,
although he may have been misled as to his
tenure by the receiver.— Wildridge v. M‘Kane,
8]. E.R. 231. (R.)

13. The Master has no jurisdiction to direct
a receiver to proceed by civil-bill for arrears
of rent, the 146th G. O. not including such a
case.—Hamilton v. Jackson, 8 I. E. R. 581. (R.)

 

14, When the receiver, at the instance of the
parties and to save them expense, did not pass
his account within the time limited by the
148th G. O. the Court, on motion, allowed
him poundage.—Purcell v. Woodley, 10 I. E.
R. 422. (R.)

15. The defendant having succeeded in two
interlocutory applications, with costs to be
paid to him by the plaintiff; they were mea-
sured by the Court, pursuant to the 159th G.
O. The bill was dismissed for want of pro-
secution. Upon taxation, the Master, not-
withstanding the award of the sum for costs
taxed the defendant’s costs of the two appli-
cations to sums greater than those awarded.
Held, that the sum awarded by the Court was
conclusive, and that the Master was not autho-
rised to tax those costs.

The 159th G. O. applies to all interlocutory
motions.— Woodley v. W., 71. E. R. 77, (R.)

16. When documents are indorsed by a soli-
citor in compliance with a notice under the
366

164th Rule, the practice is to have a consent
admitting the documents made a rule of
Court by a side-bar rule-—Killikelly v. Molton,
101. E.R. 212. (R.)

 

II. GenerRAL ORDERS: THEIR CONSTRUCTION
GENERALLY.

1. The 19th G. O. of Nov. 1834 as to plea
and demurrer.—Howlett v. Lambert, 3 1. E. R.
473. (R.)

2. The G. O. of October, 1835, respecting the
enrolment of decrees, is not a repeal of the
Order of March 1817, upon the same subject.
Henn v. Bradshaw, 4 I. KE. R. 278. (C.)

8. G. Orders 12 & 14 apply to supplemental
as well as to original, bills.— Tommey v. White,
61. E. R. 303.—(R.) [See 6 Cl. & F. 786; 1
H. L. Cas. 160; 3 H. L. Cas. 1; and 6 I. Jur.
321. (HL.)]

 

Il. Generat ORDERS UNDER THE CouRT OF
Cuancery (IRELAND) REGULATION ACT,
1850.
1. General Orders of 1851 & 1852.
2. General Order of May 1857.

 

TI. 1. General Orders of 1851-52.
Pr. Cu. Ree. Act.)

4. A prior mortgagee having the legal es-
tate is not an “owner of land” within the
11th and 12th Orders, and may be served with
notice under the 32nd Rule, in the Master’s
office.—Leonard v. Hartwell, 4.1. Jur. 74. (R.)

(See also

5. A prior mortgagee, having the legal es-
tate, is not an “owner of land” within the
11th and 12th Orders, and may be served with
notice under the 32nd Rule, in the Master’s
office.—Cleland v. Montgomery, 4 I. Jur. 90.
(R)

6. A cause petition filed before the 10th
August 1851, and which, but for the saving
in the G. O. 1851, as to such petitions, would
have been dismissed by the operation of the
27th G. O., is improperly set down for hear-
ing after the last day of M. Term 1851.—
Keys v. Lysaght, 4 1. Jur. 276 (C.); Stoker v.
S., ibid.

7. Under special circumstances the M. R.
may appoint a solicitor receiver.—Cromie v.
Peyton, 51. Jur. 142. (R.)

 

27th General Order 1851—as to dismissing Peti-
tion for want of prosecution.

8. Notice of a cause petition was sent to a
solicitor, supposed to be the general solicitor
of respondents, on the 18th of March. Heon
the 22nd acknowledged its receipt, and under-
took to appear on receiving a copy of the pe-
tition. It having been sent on the 23rd, the
solicitor entered an appearance for the defen-
dants on the 25th of March. The Registrar
refused to set down the petition in M. Term,
because two whole Terms had elapsed, under
the 27th G. O., from the time when it might

 

[GENERAL ORDERS.]

have been set down for hearing; and there-
fore the petition stood dismissed. Held, that
the Registrar’s decision was right, because the
service was to be deemed as effected on the
18th; but the Court directed the petition to
be reinstated under the special circumstances
of the case.— Saunders v. S., 71. Jur. 63. (R.)

9. When a petitioner becomes bankrupt
before the petition stands dismissed by the
27th G. O. of 1851, the suit is not affected by
that Order.

But when, pendente lite, a petitioner volun-
tarily assigns his property, the suit is not
thereby abated, and is therefore within the
operation of the 27th G. O. of 1851.—Mazxwell
y. Read, 15 I. C. R. 133 (R.); M‘Dowell v.
Midland G.W. Raihway Co., 61. Jur. 129. (R.)

10. Semble—To entitle a party to production
of a document under the 4th G. O. of Nov.
1852, its possession need not be admitted.

Semble—As a general rule, the Court will
not, before answer, order the production of a
document under that G. O.—JFitzgerald v.
Simpson, 171. C. R. 141. (R.)

III. 2. General Order of May 1857.

11. The 18th G. O. of 1857 does not apply to
cases where there is to be a payment of money
out of Court; and where a deceased party to
whom no representative has been raised, had
some title to money directed to be brought
into Court, the money will not be paid out un-
less a regular administration is obtained.—
Stott v. The Northern Banking Co. of Belfast, 3
I. Jur. N. 8. 287. (R.)

 

12. The 8th G. O. of May 1857 directs that
the facts deposed to in an affidavit shall, when
within the deponent’s knowledge, be distin-
guished from those stated on belief founded
on the information of others. Semble—That,
on taxation, there shall be disallowed the costs
of only so much of an affidavit as violates
this G. O.— Crawford v. Pilson, 8 I. Jur. N.S.
4. (R.)

13. Queere—Whether the 19th G. O. of May
1857 applies to misjoinder of causes of suit, as
well as to misjoinder of parties ?—Power v.
The College of Physicians, 71. C. R. 104. (R.)

14. If a final order be not made in suit sent
into the office under the Ch. Reg. Act, s. 15,
within the time limited, in pursuance of the
5lst G. O. of the 19th May 1857, the cause is
out of Court, and a new suit necessary.

It is for the Master, to whom any new suit
for the same purpose is referred, to determine
whether the former proceedings shall be adop-
ted.—Moore v. Keogh, 101. C.R. 501; 51. Jur.
N.S. 501. (C.)

15. The 20th Rule of April 1861 does not
apply to cases of persons lodging caveats “in
the goods,” who are not by interest entitled to.
do so. In such cases, an appearance entered,
accompained by a notice in the terms of that
Rule, and the caveat, will be set aside, with
costs.—Russell v. R., 81. Jur. N. 8. 40. (P.)
Generally.

GIFT.

See Donatio Mortis CausA—HusBaND AND
Wire, I.

 

GRAFTS ON LEASES.
See Leaszs, VIII, 1.

 

GRAND-CHILDREN.
See Wits, XV.

 

GRANT.

See Crown—DeEeps, passin—HusBaND AND
Wire, I.

 

GRATIS APPEARANCE.
See PRactICE, APPEARANCE.

 

GREAT TITHES.
See Trtuss, V.

 

GUARDIAN AND WARD.
See Fraup, VII[—Inrerst Pecuniary, I—
Prieapine, Parties—Pracrice, Costs
—PracticE, REFERENCE, I.

 

I. GUARDIANSHIP GENERALLY.
IL. Guarpian, APPOINTMENT OF.

1. Generally.

2. By deed or will.
a. Who may so appoint.
b. What amounts to an Appointment.
c. When such Guardian ts controlled.

8. Ad litem.

 

I. Tue Guarpian.

. Generally.

2. His Duties, Powers, and Liabilities.
3. His Accounts.
4
5

_

. Allowance to for Maintenance.
. Removul of

I. GUARDIANSHIP GENERALLY.

1. There is no rule: of law prohibiting a
testamentary guardian from acting as prochein
amy of a minor.—Morrison v. Bell, 5 1. E. R.
354. (R.)

2. Minors may be made wards of Court on
petition, without changing the guardians,
where there are testamentary guardians, and
although no bill has been filed, nor any mis-
conduct imputed to the testamentary guard-
ians.—In re M‘Cullochs, 6 I. E. R. 893. (C.)

3. A father by, will appointed a guardian,
and directed that his children should be
bronght upgin the Protestant faith, and that
their mother should have no control over their
education or religion. The mother was a
Roman Catholic. Anapplication by the mother
under the 2&3 Vic.,c, 54, for an order to obtain

[GUARDIANS.]

 

Appointment of. 367

the custody of the children was refused by this
Court.—Inre Cornwalls Minors, 21. Jur. N.S.
458. (C.A)—|Affirming Rolls decision ; ibid
148.]

4, AR. C. father married a Protestant. All
his children, eight in number, save the young-
est were baptised by R. C. clergymen. He
permitted the children, when of sufficient age,
to receive instruction, and to attend divine
service as Protestants. They did not receive
any religious instructions as R. Catholics nor
attend R. C. worship. The father died in the
lifetime of the mother, who afterwards was
obliged to enter the workhouse. There she
registered the children as Protestants. The
mother died shortly afterwards, leaving the
eldest child about twelve years of age and the
youngest about one year. Her wish was that
her children should be brought up Protestants.
The husband on his death-bed was attended
by a R. C. priest, and it was alleged that he
had expressed a wish that the children should
be brought up as R. Catholics. Evidence was
given that he had subsequently expressed a
different wish. eld, that the children were
to be brought up as Protestants.

The children had no property whatever, but
an undertaking to invest a sum for their
benefit was given. ‘

Held, that the Court had jurisdiction to
direct who should have the custody of the
children.—Jn re O’Malleys, 8 I. C. R. 291; Dr.
(os temp. Napier, 358; 4 I. Jur. N.S. 195.

 

IL. Guarpran’s APPOINTMENT.

1. Generally.

2, By deed or will. :
a. Who may so appoint a Guardian.
b. What amounts to an Appointment.
e. When Guardian is controlled.

38. Ad litem.

 

II. 1. AproInTMENT, GENERALLY.

5. The Court’s jurisdiction to make a sum-
mary order of reference, upon petition, under
the Ch. Reg. Act, s. 15, praying the appoint-
ment of guardians, allowance of maintenance,
settlement of a scheme of education, &c., will
be exercised, in minor matters, with great re-
luctance.

Semble—It is better to present a summary
petition in the minor matter—Garnett v. G.,
21. Jur. N. 8. 314. (C.)

6. The Court’s jurisdiction to make a sum-
mary order of reference, upon petitions under
the Ch. Reg. Act, s. 15, praying the appoint-
ment of guardians, allowance of maintenance,
settlement of a scheme of education, &c., in
minor matters, will be exercised with great
reluctance.

Semble—It is better to present a summary

etition in the minor matter.—Fetherstone v.
Moore, 21. Jur. N.S. 315. (C.)

7. The 15th sec. of the Ch. Reg. Act is not
imperative; and the power thereby conferred
of referring summarily to the Master, petitions
368 Appointment by

for appointment of guardians of minors, and
allowance of maintenance, ought not to be
exercised.— Charleville v. Tighe, 9 I. C. R.
309. (C.)

1. Order appointing a guardian to execute
af. f. grant, under the Ren. L. Conv. Act, on
behalf of minors, the grantees.—In re Harris,
171. C. R. 224. (R.)

2. Order appointing a guardian of an in-
fant tenant in tail, to consent to an applica-
tion under the Settled Estates Act, for a
power to make building leases.—Jn re the
Lands of Freehill, and the 19 & 20 Vic., c. 120,
171. C. R. 225. (R.)

3. Minors made wards of Court, a guardian
appointed, and their maintenance and resi-
dence provided for by the order, without a
reference to the Master, the minors’ fortunes
being small.—In re Kennys, 17 I. C. R. 246.
R.)

I. 2. By Deed or Will.
a. Who may so appoint a Guardian.
b. What amounts to an Appoint-
ment,
ce. When Guardian is controlled,

 

II. 2. a. Appointment of a Guardian by Deed or
ill: who may be appointed.

4, A mother, a testamentary guardian, has
not any right to bring up her child in a reli-
gion different from that in which her husband
died, being his fixed religion. Upon doing
so, she will be removed from the office of
guardian. A mother cannot appoint a tes-
tamentary guardian.—ZIn re Hunt, 2 Con. & L.
873. (C.)

5. Of three testamentary guardians, two
whé declined to accept the trust are not en-
titled, after their co-guardian’s death, to be
appointed, as of right, guardians by the
Court.

Other circumstances being equal, the two
survivors will be preferred to the persons
whom the minors’ mother in her will named
as guardians after her death, she having no
legal power to appoint guardians.

The solicitor for any person exercising a
control over the minors’ estates will not be
appointed guardian of their persons.—Jn re
Johnstons Minors, 2 Jon. & L. 222. (C.)

6 A., before marrying B., verbally con-
tracted to allow their children, if any, to be
reared Protestants. During B.’s life the
children were baptised and reared Protes-
tants. A., renewed his promise to B., when
she was dying. After her death, A.’s appli-
cation to the Court for the guardiqnship of
the surviving child was refused, because of his
unfitness, through intemperance, immorality,
and other causes. A., by will, Jeft his child
to the guardianship of his mother, a Roman
Catholic, and of his brother, a Roman Catholic
clergyman. The Master’s report appointed

[GUARDIANS.]

 

Deed, ec.

Protestant guardians, in ignorance of <A.’s
death and will. Held, that the report could
not be confirmed; and that pending the re-
ference to the Master to review his report, the
minors’ custody should not be changed to the
testamentary guardians.—In re Browne a
minor, 4]. Jur. 99. (R.)—[See In re Browne,
21.C.R.151. (R.))

7. A testator named his wife and two gen-
tlemen, testamentary guardians of his child-
ren. The two gentlemen relinquished the
office, and the Court appointed the minors’
mother their sole guardian. She, at her death,
desired that her executor and another might
be guardians. The Court appointed as guard-
ians the two gentlemen originally named by
the father. The executor of the testatrix
unsuccessfully opposed that appointment, in
accordance with her wish; but was allowed
credit for his costs of opposing it.—Johnstone,
re Johnstones, 6 1. Jur. N. 8. 27. (R)

 

Il. 8. Ad litem.

8. The Court will not sanction, or permit to
act as next friend or guardian ad litem of an
infant, a person whose interests are adverse to
the infant’s. The adverse interest to dis-
qualify must be clear and substantial. A suit
was, under an order of the Court, instituted
on behalf of an infant to impeach the vali-
dity of a will, whereby the infant’s father af-
fected to devise away to strangers one of the
family estates. Held, no objection to the
next friend (the only paternal uncle of the
infant, the younger brother of his father),
that he, as one of the junior branches of the
family, had a charge on the estate, bearing
interest at £6 per cent., which, in the event of
the minor succeeding in the suit, should pro-
bably be paid off, unless the interest were re-
duced; the next friend swearing that he was
wholly uninfluenced by that consideration, and
was induced to act solely by his regard for the
minor; and it not appearing that there was
any greater probability of the charge being
paid off in the event of the infant succeeding
than of his failing in the suit.

The solicitor of a next friend must not have
interests adverse to the minor’s, nor be pro-
fessionally bound to support adverse interests.
Subject to that restriction, a next friend may
employ what solicitor he pleases.—Langford v.
Little, 5 I. E. R. 343. CR.)

9. Upon a motion of the plaintiff, a guar-
dian ad litem was appointed to put in an answer
for a defendant, upon an affidavit that he was
a person of weak intellect.—Mauleverer v.
Warren, 2 Jon. 47. (E.E.)

10. The Court will not permit the answer of
the guardian of a person imbecile from age
to be read against him, nor will it make a
decree thereon; the case must be proved.—
Freemany. Grady, 81. E. R. 1387. CR.)

11. This Court will not appoint a married
woman guardian ad litem of an infant; but if
Generally.

her husband join, will appoint them both.—
Jones v. Geale, 81. E. R. 239. (R.)

1. Service of a conditional order for sale
having been substituted by leave of the Court
on the attorney of the principal owner, who
had left the country, the Court appointed a
guardian on whom service might be substi-
tuted for minor owners, who also were out of
the country, and whose interest was the same
as bis.— In re Purcell, 21. Jur. 14. (1.E.C.)

2. Order made to appoint a next friend toa
minor plaintiff, in lieu of a next friend de-
ceased.— Nolan v. N., 21. C. R. 557. (B.)

3. When the report of the Master has
found a respondent insane, and that none of
his family will act for him, the Court will
make an order appointing the Solicitor for
Lunatics and Minors “guardian ad litem” to
the respondent, though he has not been found
insane by a commission.—Callaghan v. C.,
61. Jur. 194. (C.)

4, A cause petition was filed against aminor
respondent, but no Master nominated, pur-
suant to the 2nd G. O. of 1851, and the 190th
G. O. of 1848. On a motion by the respondent
to strike the cause out of the Lord Chancellor’s
list—Held, that this irregularity did not
entitle the respondent to have the cause
struck out; but an order for the appointment
of a guardian ad litem was then made.

Semble—When, by reason of the petitioner’s
solicitor not complying with the general Rules,
by nominating a Master, the petitioner is pre-
cluded from nominating a guardian ad litem
under the Ch. Reg. Act (/r.), s. 21, and a
motion: for the purpose is thereby rendered
necessary, the petitioner’s solicitor should be
charged with the costs of such motion.—
O'Dell v. Massy, 11. Jur. N.S. 272. (R.)

5. When a cause petition is filed against a
respondent, who is of unsound mind, but not
found so by commission, and who has no wife,
child, or servant, on whom service can be
effected, but is resident in a lunatic asylum,
the Court will direct service to be substituted
upon the keeper of the asylum, and the im-
mediate relations of the lunatic; and in the
event of their not appointing a guardian ad
litem, the petitioner will be allowed to do so.—
Cooper v. C., 11. Jur. N.S. 227. (B.)

 

III. Tue Guarpian.

1. Generally.

2. His Duties, Powers, and Liabilities.
8. His Accounts.

4, Allowance to for Maintenance.

5. His Removal.

 

IU. 1. Guardian generally.

6. The guardian in a minor matter may
change his solicitor at his own discretion —
Inre Bails, 10 I. E. R. 187. ;

 

[GUARDIAN.]

 

His Duties, Sc. 369

IU. 2. Guardian’s Duties, Powers, and
Liabilities.

7. It is the right of a prochein amy of an in-
fant plaintiff, as of any other suitor, to change
his solicitor when he pleases, and to enter the
usual side-bar rule for that purpose.—Lang-
ford v. Little, 51. E.R. 348. (R.)

 

Ul. 2. Duties, Powers, and Liabilities of
Guardian.

8. A mother, a testamentary guardian, has
no right to bring up her child in a religion
Lo from that in which her husband

ied.

If she do so she will be removed from the
office of guardian.

A mother cannot appoint a testamentary
guardian.—In re Hunt, 2 Con. & L. 373. (C.)

9. A person in the situation of guardian,
agent, receiver, and tenant, procured his
ward immediately on his coming of age to
lease to him the entire of his property, upon
terms disadvantageous to the ward. Held,
that the lease should be set aside, notwith-
standing that eleven years had elapsed since
the granting of the lease before the institu-
tion of the suit.

On account of the delay which had taken
place the account of profits was directed only
from the filing of the bill.

Held—That acts subsequently done by the
plaintiff could not be considered as acts of
confirmation of a voidable kind, because there
was nothing to show his knowledge of his
right to avoid the transaction, or his intention
to confirm it, without which there can be no
confirmation. _Mulhallen vy. Marum, 3 Dr. &
War. 317. (C.)

10. When an infant is entitled to a vested
legacy, payment thereof during his minority
by the executor to the testamentary guardian
is valid, inasmuch as the statute for taking
away the Court of Wards and Liveries, 14 &
15 Car, 2, c. 19 ({r.), 12 Car. 2, v. 24 (Eng.),
enables the guardian to give a good acquit-
tance.

Such a payment is valid, though the period
directed by the testator for payment of the
vested legacy to the infant is the attainment
of age or marriage.

A testator bequeathed to his eight younger
children all his property, share and share
alike, on their attaining their respective ages,
or marriage, with consent of their guardian,
and directed that the interest arising from
their respective shares should be applied in
the meantime to their maintenance and edu-
cation, and appointed a guardian and an
executor. Held, that a payment during the
minority of the children of a part of the cor-
pus of the personal estate of the testator by
the executor to the guardian was a valid pay-
oo vy. M‘C., 13 I. E. R. 314.

11. Testamentary guardians, appointed by
the father, have the same right as the father

47
370

had, to direct the religious education of a
child in accordance with the father’s wishes.—
Inre Browne, 21. C. R. 151.—[See In re Browne,
41. Jur. 99. (R.)]

1. When there is a limited right of renewal,
and a doubt exists whether a forfeiture has
been created, the Court will not direct the
guardian of the minor to execute a renewal
under the Acts 11 G. 4, and 1 W. 4, c. 65, s.
16;5&6W.4,¢. 17.

The guardian is allowed her costs as costs
in . matter.—Lx parte Coote, 6 I. Jur. 107.
(R.

2. A lessee for lives renewable for ever re-
quired a fee-farm grant under the Act. When
the owner of the reversion is a minor or lu-
natic, or a receiver is in receipt of the rents,
it is the duty of such lessee, in the first in-
stance, to apply to the receiver or guardian
for the fee-farm grant, and the receiver or

[GUARDIAN._HABEAS CORPUS.}

7. When there is a testamentary guardian,
the law (14 & 15 Car. 2, c. 19, Ir.) authorises
him to manage the estate of the infant, and
the Court will not interfere with or remove
him unless it be absolutely necessary so to do.
Whether the filing of a bill for this purpose
would, before the Court of Ch. Reg. Act (13
& 14 Vic., c. 89), have been necessary ? Quere.
—In re Goode, 11. C. R. 256; 3 I. Jur. 50.

C.)

 

TIABEAS CORPUS.

See Banxrurtcy, VI, VITI—Practice, Ha-
Bias Corrus—Pracrice, Writ.

8. A solicitor being in custody, under an
attachment, the Court granted a writ of
habeas corpus directed to the marshal, to
bring him before the Taxing Master, to
enable him to attend the taxation of bills
of costs.—Walsh v. Wilson, 2 I. C. R. 79.

)

guardian should apply to the Court to ascer- | (R.

tain whether such grant should be made. If
he neglect to do so, he may be charged the
costs of the petition of the lessee, thus ren-
dered necessary for obtaining such grant.—Jn
re Roberts, 1 I. Jur. N. 8. 248. (R.)

 

Ill. 3. His Accounts.

 

HI. 4. Allowance for Maintenance.

3. Maintenance will not be allowed out of
funds which by direction of the will are to
accumulate and be laid out in the purchase
of lands, to be entailed on the minor in tail,
with remainder over.—Shaw v. M‘Mahon, § I.
E.R. 584. (R.)

4. Order made to pay a small legacy to an
infant’s guardian, upon his undertaking to
apply the amount in purchasing an outfit for
the infant, and paying the price of his passage
to New Zealand.—Salter’s Trusts, in re, 17 1.
C.R. 176. (R.)

III. 5. Removal of Guardian.

5. A mother, a testamentary guardian, has
not any right to bring up her child in a reli-
gion different from that in which her husband
died. Upon doing so she will be removed
from the office of guardian. A mother can-
not appoint a testamentary guardian.—ZJn re
Hunt, 2 Con. & L. 373. (C.)

6. A person acting as next friend of an in-
fant (a ward of Court) was removed, and an-
other appointed to that office, it appearing
that the former had been (without application
to any of the infant’s family, to whom he was
a stranger) induced to lend his name, for the
purposes of the suit, by the solicitor con-
cerned, on the terms of not being required to
interfere personally, or to take any trouble
in the matter, and of being indemnified by
the solicitor against costs.—Langford v. Little,
51. E. R. 343. (R.) i

 

9. It is not necessary that the warrant
committing a bankrupt for unsatisfactory
answering, should state that the questions
were put by the Judge; or that the Judge
should in fact have put them. The words
“by and before me,” at the commencement of
the deposition, are sufficient. In order to
discharge the bankrupt, the Court before
which he is brought on habeas corpus must be
fully satisfied that the Judge below was
wrong in committing him. The question to
be decided in each case is—whether the an-
swers of the bankrupt would satisfy the mind
of a reasonable man.—In re Courtney, 11 I. C.
Rk. 410. (B.)

 

HALF-BLOOD.

10. By a deed of 1827, P. covenanted with
his son, D., that after the decease of R., the
estate which should thereupon descend to or
vest in P. should be conveyed to uses. R.
was found a lunatic; but in 1820 had made a
will, under which, if valid, G. took an estate
tail. In 1830, the lunatic being dead, P., in
violation of his covenant, conveyed the estate
to Hl. In 1832 an ejectment was brought by
those claiming under the will of the lunatic.
At the trial, P. and II. disputed the will. The
conveyance of 1830 was set aside by the H.
of L., by which D. and his children were de-
clared entitled, as against P. and H., to the
benefit of the deed of 1827; and it was re-
ferred to the Master to settle a conveyance.
The Master, by his report in 1843, found that
D. had not laid before him any conveyance.
In 1841, II. being in possession, a compromise
was entered into between him andG. Two
deeds were executed, by one of which G. re-
leased all right and title to the estate to H.,
in consideration of a conveyance of a portion
of the estate which was made by the other
deed. A supplemental bill having been filed
by D. and his children, to carry the decree of
the H. of L. into execution against H. and
[HALF-BLOOD.—HEIR-AT-LAW.]

G., who was not a party to the original suit—
Held, that though the plaintiffs had not
availed themselves of their right of having a
conveyance under the decree, they had not
forfeited their right to the benefit of it, as H.
had, by the deeds of 1841, disabled himself
from conveying the legal estate.

That the first deed of 1841 being a release,
and not a conveyance, was an acknowledg-
ment of the estate by descent in H., and
operated to confirm that estate; and there-
fore that the plaintiffs were entitled to have
the Lords’ decree enforced against G. (as
claiming under H.), although he was not a
party to the original suit.

The uses to which the estate was to be con-
veyed, by the deed of 1827, were to D.; re-
mainder to the first and every other son of his
marriage successively, and the heirs male of
each such son lawfully issuing ; remainder to
the right heirs of D., who, on the settlement
executed on his second marriage, conveyed
his supposed reversion to the use of the
children of the second marriage. D. and his
children of both marriages were plaintiffs in
the original and supplemental suits.

Queere—Whether the fee vested in the sons
of the first marriage, and whether the child-
ren of the second marriage took any estate?

But as the H. of L. had declared that the
children of the second marriage were entitled
to the benefit of the deed of 1827, the Cowt
held that there was no misjoinder of plaintiffs
in the supplemental suit.—Persse v. Persse, 3
LC. R. 196; 4 L Jur. 369. (C.)—[Affirmed
5 H. Lds. Cas. 682.]

 

HALF PAY.

See ASSIGNMENT.
Charging of. See Cuarncing ORDER.

 

HANDWRITING.
See Practice, EVIDENCE.

 

HEARING.
— Generally. See Pracricn, Hearne.
— Exceptions. See PRactice, ANSWER.

— Exceptions to Report. See PRracticy, Mas-
TER, REFERENCE TO.
— Inre Bankruptcy. See Bankruptcy, XVI.

 

HEATHENS.
See ALIENS.

 

HEIRS AND EXECUTORS: ASSETS AS
BETWEEN THEM.

See Executor, XI. 3.

 

HEIR EXPECTANT.
See Hetr-at-Law, III.

 

371

‘HEIR-AT-LAW.

— Reviving Sequestration against.
_ TICE, SEQUESTRATION.
— Ventre inspiciendo. See Practicy, Writ.
— Costs as to. See PRacticE, Costs.
See Estate, VIII—Exxcurors, XI—Pueap-
inc, Partizs— Practice, Issup aT
Law—Leeacy, V.

1. His Genzrat Ricurs anp LraBiLivies.

1. Generally—how favoured in Equity,
et é contra.

2. When bound by, or when he may set
aside or enforce his Ancestor’s
covenants, agreements, Sc.

3. Resulting trusts in favour of.

4. When entitled to an issue of devi-
savit vel non.

5. When entitled to the Costs of legal
proceedings.

See Prac-

 

II. WHEN 4 NECESSARY Party To a Suir.
III. Expectant Heirs, HOw PROTECTED.

(By 3&4 W.4, c. 74, s. 27, heir-at-law not
to be protector of a settlement.

By 3 & 4 W.4, c. 106, ss. 3 & 4, heir-at-
law entitled under a will to take as devisor;
and under limitation to grantor and his heirs,
&c., to take as purchaser.

By the 4 & 5 W. 4, c. 23, when a person
seized of any lands by way of mortgage dies,
the Court of Chancery may appoint a person
to convey the lands ; and land, stock, or chat-
tels, vested in any person by way of mortgage,
does not escheat to the Crown.

By the 13 & 14 Vic, c. 60 (Trustee Act
1850), ss. 7, 8, & 19, the Court of Chancery
may convey estates vested in infant trustees
or mortgagees, and may in certain cases make
an order to vest mortgaged estates in lieu of
conveyance by heir-at-law, an infant, or un-
known, or uncertain whether living or dead.
And such conveyance shall have the effect of
a conveyance by the heir.

By 17 & 18 Vic., c. 113, heir or devisee of
of person dying after 31st Dec. 1854, not to
claim mortgage out of personal estate.]

 

I. 1. His general Rights and Liabilities, §c.

1. An heir-at-law is not to be disinherited,
unless by express words. The estate devolves
upon him, unless it be distinctly pointed out
to whom it shall go.—/Salter v. Cavanagh, 1
Dr. & Wal. 668. (C.)

2. An heir-at-law may be disinherited by
words of necessary implication —Gurly v. G.,
2 Dr. & Wal. 463.—[Affd., 8 Cl. & F. 763.]

8. An heir-at-law of heritable property in
Scotland, being also devisee of real estate in
Ireland, under a will executed by the testator
while domiciled in Ireland, and attested ac-
cording to the law of Ireland, must elect
between the heritable property in Scotland,
and the benefits conferred on him by the will.
a y. M‘C., Dr. Rep. temp. Sugden, 283.

i
372

1. A lessee of lands, demised to him, his
heirs, and assigns, pur autre vie, devised all his
real, freehold, and personal property to his
wife and children, share and share alike. One
child survived the testator, but died intestate.
Held, that his heir-at-law, not his personal
representative, was entitled to his share of
the freehold lands.— Wall v. Byrne, 71. E. R.
578; 2Jon.&L.118. (C.)

2. A receiver will not be appointed over the
lands in the possession of the heir-at-law,
unless he admits the will, or until it is proved
ann him.—Dobbin v. Adams, 8 I. E. R. 157.

3. The provision at the end of the 17 & 18
Vic., 113, that it shall not affect the rights of
any person claiming under any deed or docu-
ment made before Jan. 1855, does not save a
right to the heir to be exonerated from a
mortgage debt out of the personal estate be-
queathed to a legatee by a will made before
that date.—Power v. P., 8 I. C. R.340. (R.)

4. The right to set aside a conveyance im-
properly obtained by a solicitor from his
client, is devisable. The heir-at-law need
not be a party to the devisee’s suit to set it
aside.— Uppington v. Bullen, 2 Dr. & War. 184;
1 Con. & L. 291. (C.)

 

I. 2. When bound by, or when he may set aside or
enforce his ancestor’s covenants, agree-
ments, §c.

 

I. 3. Resulting trust in Heir’s favour.
[See 3 & 4 W. 4, c. 106, s. 4.]

5. 'V., by will reciting that he had a clear
yearly profit rent of £60 out of his freeholds,
devised them, with the rents, &c., thereof, to
his nephew, C., for 99 years, upon trust to pay
V.’s only son £10 a-year for life in full of ail
claim he might or could thereafter have upon
V.’s real or personal property ; from the son’s
death to pay that sum to V.’s daughter, D.,
and her issue, together with an additional
sum of £18 yearly; and further, to pay V.’s
daughter, J., £28 a-year: if D. and J. hap-
pened to die without issue, &c., V. devised
those freeholds (out of which the annuities
issued) to C. for ever. Held, that C. was not
beneficially entitled to the surplus rents, after
paying the annuities, for the residue of the
99 years; but that there was a resulting trust
thereof for the heir-at-law.

An heir-at-law is not to be disinherited ex-
cept by express words. The estate devolves
upon him unless it be distinctly pointed out to
whom it shall go.—Salter vy. Cavanagh, 1 Dr.
& Wal. 668. (C.)

6. Z. devised all his real estate upon trust
to pay the rents to A. for life, and after his
death, and after the happening of a contin-
gency, to settle the estate upon B. A. died
before the contingency happened. Held, that
the intermediate rents belonged to the heir-at-
law of Z.— Wills v. W., 1 Dr. & War. 439. (C.)

 

[HEIR-AT-LAW.]

I. 4. When entitled to an issue of devisavit
vel non.

7. E., seized of lands subject to mortgages,
devised them to T., in whom the mortgages
became vested. Held, that the Court had ju-
risdiction in a suit instituted by the heir of E.,
praying the ordinary redemption relief and an
issue d. v. n., to grant such an issue.—Egmont
v. Darrell, 14 I. C. R. 564. (C.)

 

I. 5. When entitled to the Costs of Legal Pro-
ceedings.

[See Pr., Costs.]

8. Although an heir-at-law may contest an
action brought to recover property, which he
would inherit if no valid disposition had been
made aliunde, and on failing will generally be
entitled to his costs ; when he abandons his
position as heir-at-law, and defends in a dif-
ferent capacity, he falls within the rule as to
ordinary defendants, and the costs abide the
event of the trial—S7ench v. F., 2 I. Jur. 177.

C.)

9. Where a plaintiff prayed relief as heir-
at-law, and, after the defendants had an-
swered, discovered a settlement— Held, that
by amended bill he might vary the relief
prayed.—Peed v. Cussen, 8. & 8.161, (R.)

10. When the heir-at-law successfully resists
probate of a will of real estate, the Court of
Probate has no jurisdiction to charge the real
estate with the costs of the litigation —New-
ton v. N., 13 I. C. R. 245. (C.A.)

 

II. WHEN A NECESSARY Party to Suir.
[See Pr., Parties.]

Ill. Expecrant Herrs; How PRotectTeD.

11. Bill by a son, tenant in tail in remainder,
to set aside a lease executed to deft. by ptf.’s
father and ptf. within a few months after ptf.
attained age, upon which occasion the estate
had been opened, and the uses of the recovery
declared to be such as father and son should
jointly appoint; in default of appointment, to
the uses to which the estate had formerly
been settled. Held, that the bill should be
dismissed, since no case of undervalue or un-
due influence, exercised by the father over
his son, had been proved.

When father and son are dealing with a
third person, there is not any rule which
requires that they shall act by separate solici-
tors.— Cooke v. Burtchaell, 2 Dr. & War. 165.

©.)

 

HEIRLOOMS.
See Wii, XV.

 

HOTCHPOT.

See Custom, II—SErrLement.
[HUSBAND ‘AND WIFE.]

HOUSEHOLD FURNITURE.
See Wit, XV.

 

HUSBAND AND WIFE.

See Banxrurtcy, XI. 8 — Dowrer — Join-
TURE—MaRRiAaGE, V—JURISDICTION,
VII — Purapine, Parties — Power,
I,— Pracricr, Costs — Practice,
Writ—SerrLemMeEnt.

 

I. Huspanp anp WIFE.

1. Suits by, against, or between: other
incidents.
a. In general.
b. Bills, Appearances, &c.
ce. Answers, Demurrers, &c.
d. Parties.
. When their Evidence will be admitted
against each other.
. Gifts and Grants between them. :
When articles before Marriage will be
supported.
Separation Deeds, and Separation by
Agreement.
. Llopement, Adultery, and Divorce.
. Access between.
. Husband and Wife generally.

OAD mT BO bw

 

II. Huspann’s Prorerry.

1. Wife's Rights in his Real Estate. (See
Dower.)
2. Wife's Interest in his Personal Estate.

 

III. Wire’s Property.

1. Her Real and Personal Property.
a. Husband’s Rights in, and Powers
over her Real Estate.
b. His Powers over her Chattels Real.
c. His Interest in and Powers over
her Personal Property.
TII. 2. Wife's Choses in Action.
a. Her Right by Survivorship: how
affected by settlement or agreement.
b. Effect of Husband’s Bankruptcy.
c. Husband's Right by Survivorship.
d. Husband's Interest in, and general
Powers over: how affected by set-
tlement or agreement.
e. Assignment of.
f. Reduction into Possession of.

3. Wife's separate Estate.
a. When so considered, and when not.
b. Husbands Rights, Powers, and
Liabilities respecting.
c. Wife's Rights against her Husband,
or his representative in receipt of
her separate estate.

d. Her consent before Court.
e. Her alienation in Husband’s favour.
f. Where and how bound: to what

liable.

g. Her Powers over: when restrained
from anticipation.

h. Hecetver over it.

 

373

IV. Huspanp.
1. His Liability for Wife's Debts and
Acts.
a. Prior to Marriage.
b. During Coverture.
c. During Separation.

 

V. Wire.

1. Her Powers and Disabilities during
Coverture: conveyances to her.

[Acknowledgment of Deeds. See 3 and 4 W.
4, ¢. 74,and 4&5 W.4, c. 92. Doubts concern-
ing removed by the 17&18 Vic.,c. 108. By the
20 & 21 Vic., c. 57, married women, entitled
to reversionary interests in personal estate,
under a deed made after the 3lst Dec. 1857,
may in certain cases dispose of such interests
by deed acknowledged as under the 3&4 W.
4, ¢. 74.]

2. Her Liabilities during Coverture.
3. Her Rights.
a. In what cases she is bound.
b. On Husband's Bankruptcy and
Insolvency.
c. Her Equity for a Settlement.
d. Alimony.
e. Separate Maintenance.
f. Paraphernalia.
g. Pin-money.

 

J. Huspanp anp WIFE.

1. Suits by, against, or between them: other
incidents.
a. In general.
b. Bills, Appearances, Sc.
c. Answers, Demurrers, §c.
d. Parties;
. When their evidence against each other is
admissible.
. Gifts and Grants between them
. When Articles before Marriage will be
supported: when not.
. Separation Deeds ; Separation by Agree-

ment.
. Elopement, Adultery, Divorce.
. Access between.
. Husband and Wife generally.

WAI or me OO bo

 

I. 1. a. Ln general.

1. Husband and wife may maintain a suit
for specific performance of an agreement by
them with a third party for the sale to him of
lands, whereof the husband is seized in right
of the wife.

A contract for sale of “ the lessee’s interest”
in a lease does not exonerate the vendor from
the necessity of proving the lessor’s title to
grant the lease.—Fennelly v. Anderson, 11. C.
R. 706; 41. Jur. 33. (C.)

2. B., the wife of A., claimed lands, as
devisee under a will, which the decree in a
suit, instituted by the heir against A. and B.,
declared to be void. The decree directed an
account of all sums received by A. and B., or
either of them, on account of the lands; and
ordered the defendants to pay the sum to be
found due on taking such account. A. died
374 Suits by
before the Master’s report wasmade up. The
suit was revived against his personal repre-
sentative. The Master found the sum received
by A. and B. Held, that B. was personally
responsible for the entire amount.—Ross-
borough v. Boyse, 31. C. R. 629. (C.)—[Revg.
decision, 3 I. C. R.540. (R.)—Revd., 6 H.L.
C. 2.]

1. The next friend of a minor filed for her
a cause petition. The minor married, and
made a settlement. The Court gave liberty
to file a petition of revivor and supplement to
bring before the Court the minor’s husband,
and the trustee of the settlement.—Bowes v.
Watson, 71. Jur. 138. (R.)

2. A suit to revive a final decree for the
payment of money cannot be sustained if not
commenced within twenty years from the day
on-which the decree was made, no payment or
acknowledgment having been made in the
meantime. :

A decree in an administration suit instituted
against husband and wife, executor and exe-
cutrix, directed them to pay a sum of money.
The husband having died, the wife surviving
was made personally liable for the amount.—
Dunne v. Doyle, 101. C. R. 502; 5 I. Jur. N.S.
208. (C.)

3. A married woman’s next friend should be
a person of substance, else the Court will re-
quire security for costs to be given. Keogh v.
K., 21. Jur. 155. (R.)

4, If the next friend of a married woman be
insolvent, the Court will stay the proceedings
until the next friend be changed, or she shall
give security for costs.—[Drinan v. Mannix (3
Dr. & War. 154) followed. |—M ‘Keon v. Walsh,
11.C. RB. 608. (R.)

5. A bill of interpleader having been filed
against husband and wife, separate subpoenas
and notices were served under an order for the
substitution of service, requiring them to
appear and answer at different times. The
husband appeared and filed aseparate demur-
rer, which the plaintiff set down to be argued,
and afterwards moved to set aside for irregu-
larity. The Court refused the motion, and
made an order nunc pro tunc that the husband
and wife should defend separately.

By a deed of separation, a husband and wife
conveyed the wife’s property to a trustee, in
trust to pay an annuity to the husband; and
the residue, after payment of her debts, to the
wife. The trustee covenanted to pay the an-
nuity to the husband. The wife afterwards
required the trustee not to pay the annuity to
the husband; alleging, on the opinion of
foreign counsel, that the marriage was void.
The husband brought an action of covenant
for the annuity against the trustee, who, hav-
ing lodged the amount in bank, filed a bill of
interpleader against the husband and wife.
Demurrer to the bill by the husband allowed
with costs.—Doyle v. Dumoncel, 11 I. E. R. 342.
(R.)

[HUSBAND AND WIFE.]

 

or against them.

I. 1. b. Bills, Appearances, §c.

6. The Court will not make an order that 2
bill be taken pro confesso against a married
woman, there being no order that she should
answer separately.—Grreen v. M‘Clintock, 1 1.
Jur. 235. (R.)

7. A married woman, residing abroad with
her husband, filed a cause petition in the
name of a next friend, a person of no sub-
stance. The respondent having required
security for costs, the petition was allowed to
be amended by inserting the name of the
husband (who returned home), as a petitioner,
instead of the next friend ; the petition to be
re-sworn, but not taken out of the office—
Dunne v. Roche, 11. Jur. N. 8.7. (R.)

 

I. 1. ¢. Answers, Demurrers, Sc.

8. When a married woman is living apart
from her husband, who is resident out of the
jurisdiction, and has no interest in the sub-
ject of the suit; the Court will, upon the mo-
tion of the plaintiff, and her assent, permit her
to file a separate answer.— O’Brien v. Bernard,
71. E.R. 180. (R.)

 

I. 1. d. Parties.

 

(See Pr., Parties.)

9. If a female defendant, against whom
process has issued, marry pending the suit, the
process will be continued against her and her
husband.—M ‘Namara v. Lysaght, H. & J. 623.
(E.E.)

10. Modern cases have decided that the
husband should not be a co-plaintiff in a suit
instituted concerning the separate property
of the wife—AHackett v. Farrell, Fl. & Kel.
553; 4. E.R. 515. (R.)

 

I. 2. When their evidence will be admitted against
each other.

By 14 & 15 Vic., v. 99, ss. 2 & 3, parties
to any cause or matter, competent and com-
pellable to give evidence ; except husband and
wife, not competent or compellable to give
evidence for or against each other.

By 16 & 17 Vic., c. 83, ss. 1, 2, 3, husbands
and wives competent and compellable, to give
evidence for or against each other, save in
criminal matters or case of adultery, or as to
comunications made to each other during
marriage.

 

Before the Statute.

11. A wife is admissible as a witness against
the personal representative of her husband to
charge his assets.— Harwood v. Bland, 21. E. R.
ll.

12. In a suit for adultery and cruelty against
husband, the charge of adultery having been
withdrawn—ZJ7eld, that although the suit was
originally instituted for adultery, the wife
might, on filing an affidavit explaining and
[HUSBAND AND WIFE.]

abandoning the charge of adultery, be exami-
ned against her husband touching the charges
of cruelty.—Johnson v. J., 31. Jur. N.S. 375.
(Const.)

 

I. 3. Gifts and Grants between them.

1. C., by will in 1831, devised lands to trus-
tees for B. for life, “provided she does not
marry,” remainder over in case of her death
or marriage. In 1847, C. married B., and
afterwards made a codicil, which had the effect
of re-publishing his will. Hed, that the de-
vise to B. took effect, nothwithstanding her
marriage to the testator.— Cooper v. C.,6 I. C.
R, 217. (C.)

 

I. 4. When Ante-nuptial Articles will be sup-
ported: when not.

2. By marriage articles the husband was
entitled to the wife’s personal estate, he co-
venanting to secure a jointure for her. After
thirty years, it appeared that, by reason of
the husband’s want of property, it never had
been, and was not at all likely ever to be per-
formed. A legacy bequeathed to the wife,
and decreed in a suit to administer the testa-
tor’s assets to be paid to her and her husband,
being in Court, on a bill filed by the wife for
that purpose, the Court declared the articles
illusory, and decreed that the fund should be
transferred to the wife’s suit, and settled so as
to secure a provision for her and her children.
—TIrwin v. L, 5 I. E.R. 373. (R.)

 

1. 5. Separation Deeds: Separation between.

3. Semble—Though a separation deed contains
no more than a covenant on the part of the
wife’s trustees that she shall provide for, sup-
port, and educate the children of the marriage,
and that she shall not sue the husband for ali-
mony or otherwise, it is, nevertheless, a deed
for valuable consideration.—Nixon v. Hamil-
ton, 11. E.R. 46; 1 Dr. & Wal. 364. (C.)

4. The plaintiff filed his bill against his wife
and her trustees, to restrain them from pro-
ceeding at law upon a separation deed, which
he alleged was void as against public policy,
and by reason of a sentence for restitution of
conjugal rights. Held, that the defence (if
any) raised legal questions, and that the
Court ought not to restrain the action.—
Heath v. H., 91. E. R. 635. (R.)

5. A deed recited differences between a hus-
band and wife, and an agreement to execute
it in order to secure a maintenance for her in
ease such differences were renewed and she
should thereafter wish to live separate. As
an encouragement and recompense’ for her
eare of their children and domestic affairs
while they should live together; in order to
secure an annuity to her in case of separa-
tion; and as a reward for her services so long
as they should live together, the husband as-
signed property to trustees to secure the an-
nuity fer her separate use, to commence

 

375

immediately and be payable during her life.
The deed contained a covenant by the hus-
band to allow the wife at her option to live
separate, and by the trustees to indemnify
him while she should do so. Held, that as
the annuity was payable to the wife at all
events, the deed was a good voluntary deed ;
and was not void as an encouragement to
future separation, though containing illegal
clauses.

A deed providing for prospective separa-
tion is invalid; and a separation deed being
put an end to by a reconciliation, a clause to
revive the provision for the wife on a second
separation is invalid. But a provision for her
separate use, notwithstanding future recon-
ciliations or separations, is good.— Byrne v.
Lord Carew, 131. E.R. 1. (C.)

6. Ptf. married deft., an alien ; and by sepa-
ration deed, not acknowledged, conveyed real
and personal estate to a trustee to pay deft.
an annuity, which the trustee covenanted to
pay. Ptf. covenanted to indemnify the trus-
tee. The trustee having been sued at law by
deft., ptf. filed a bill for an injunction, and to
set aside the deed; insisting that under it
deft., being an alien, could not take any-
thing; and that the marriage was not legal
according to the law of Guernsey, where it
was celebrated; that she had executed the
deed on the supposition that deft. had legal
power over her property ; and that it was not
acknowledged. Held, that the injunction
should not be continued till the hearing, on
any except the last ground.

Semble—Ptt., having denied the marriage,
and covenanted to indemnify the trustee,
could not rely on the deed not being duly ac-
pe nee y. D. 13 ILE. R. 92.

R.)

7. By a deed of separation, reciting that
the wife was entitled to specified property,
and that no provision had been secured to her
on the marriage, nor had any part of the pro-
perty, to which she so became entitled, been
limited to the use of the issue (if any) of the
marriage, that the husband had agreed to
relinquish, for a period, the premises, which
were the property to which he became enti-
tled in right of his marriage, and formed a
provision far exceeding that reserved to him
for his own support: they covenanted to live
separate, and that all the wearing apparel,
&c., and all other estate and effects, real or
personal, to which the wife should, by pur-
chase, gift, devise, or bequest in her favour
&c., during the coverture, become entitled.
should be and remain to her separate use. It
was agreed that the wife might dispose of such
property as if sole. The trustees were empow-
ered to use the name of the husband in order to
recover any money, &c., which should there-
after be due to the husband in right of the
wife. The recited property was put in settle-
ment. The wife at the time was entitled to
a reversionary life interest in a fund, after
the death of her mother, who was then alive.
which was not referred to in the deed, and
afterwards came into possession by the’ mo-
376 Wife's Rights

ther’s death. Held, on the construction of
the deed, that she, and not her husband in
his marital right, was entitled to the latter
fund.—ZJn re Andrews, 1 I. C. R. 410. (R.)

1. A husband, A., and wife, B., were living
separate, because of his adultery. Proceed-
ings were about to be taken against him in
the Consistorial Court for a divorce and ali-
mony.

A negotiation resulted in an agreement,
which was carried out by two letters, signed
by A. One was directed to B.’s father, C.
By it A. undertook to pay his wife £60 a-
year, half-yearly, during the time they lived
separate, and to pay her the one-fourth part
of any gross sum he might enjoy from any
permanent employment in his profession as
an engineer. The other letter was directed
to A.’s brother, on whose estate A. had a
charge, authorising him to pay the £60 a-year.
—Held, in a suit for specific performance by
B. and C., that the agreement was in the na-
ture of a family arrangement, and for sufti-
cient consideration.

That as A. and B. were then separated, the
agreement was not contrary to the policy of
the law, and might be enforced.

That the agreement bound the respondent,
as a personal contract to pay a separate main-
tenance, which the Court would enforce by
its decree, although there might be a remedy
at law.— Bucknall v. B., 7 1. C. R. 130, (R.)

 

I. 6. Elopement, Adultery, and Divorce.

2. A ward of Court, entitled in her own
right to large real and personal property, was
married under age, and without the Court’s
consent. The marriage wasannulled. Upon
her coming of age, the husband petitioned for
permission to make proposals for a settlement
of her property; and to have a legal marriage
celebrated. He undertook to execute such a
settlement as the Court should direct. The
Master approved of a draft settlement where-
by all the ward’s property was limited to her
for life, for her sole and separate use; then
to her children. The amount of the property
then in litigation being unascertained, the Ld.
Ch. refused to make any order touching its
execution. A second marriage was celebrated
by the Court’s direction, and there were two
children born. The wife eloped. Held, that
during her life the children had not any right
to be maintained out of her separate estate ;
that the proposed settlement having been acted
upon by the Court, could not be varied, though
it remained unexecuted.—Hodyens v. H. 4. Cl.
& F. 323; 11 Bligh, N. 8. 62.—[Affg. re Walker,
L. & G. temp. Sugden, 299. (C.)]

 

I. 7. Access between.

 

I. 8. Husband and wife generally.
3. Right of executrix’s husband, out of the

jurisdiction, to execute an assignment, vested
in another person, under the Trustee Relief

[HUSBAND AND WIFE.]

 

in his Realty.

Act, 1850, s. 22.—Inre Trusts of Tisdall’s Will,
71. Jur. N.S. 139. (R.)

 

Il. Huspanp’s Property.

 

1. Wife’s Rights in his Real Estate. See
Dower.

2. Wife's Interest in his Personal Estate.

IL. 1. Wife's Rights in his Real Estate. See

Dower.

4. Lands, the property of A., held under
leases for lives renewable for ever, and long
terms for years, were, upon the marriage of
A. with B. conveyed upon trust to pay the
yearly rents, &c., to A. for life, so long as he
should continue solvent and able to support
and maintain B. and no longer; and from and
after his death, or his becoming insolvent,
failing in his trade, or being unable to sup-
port B., to pay the rents, &c., to B., for life,
forher sole and separate use. Held, that this
settlement did not bar B.’s right to jointure
out of fee-simple estates acquired by A. since
his marriage.—F'yan v. Henry, 2 Dr. & Wal.
556. (C.)

5. G. devised all his real estates to his ne-
phew, T., upon trust to pay thereout several
annuities, and, amongst others, “one other
annuity of £300 to my said nephew, T., his
heirs and assigns, for ever.” Held, that the
widow of T. was not entitled to dower out of
the estate taken by T. under the will, either
in the land or rent, his interest in the last
being merely equitable.—Lyster vy. Mahony, 1
Dr. & War. 236. (C.)

6. Equity makes no distinction between the
right of dower and other rights, and does not
extend any more favour to one than to an-
other; but equally protects all.

A future contingent provision, accepted by
an adult feme, upon her marriage, in lieu of
dower, is in Equity a valid bar to dower.

Equity will execute a contract in bar of
dower entered into before marriage, by an
adult woman not under disability ; where such
contract is reasonable, although by its terms
the lady, being left a widow, has no provision
out of her husband’s property; and the pro-
vision made for her out of her own is insuffi-
cient to support her in her rank of life. The
Court, however, will see that the widow gets
what she contracted for in lieu of dower.—
In ° Heron, Flan. & K. 330; 3 I. E. R. 589.

(R

7. A., by will, made ample provision for his
wife, by giving her an annuity charged upon
his general estates; and by devising to her a
portion of his fee-simple. A. disposed of all
the rest of his property, giving to trustees a
power of leasing the whole. Held, that the
widow was bound to elect, and was not en-
titled both to dower and the provision made
by the will— Hall v. Hill, 41. E. R. 27; 1 Dr.
& War. 94; 1 Con. & L. 120. (C.)

8. Tenant for life, with power to jointure,
Wife's Interest in

married without exercising it. His wife
was seized of real estate for life. On her
marriage it was settled to the husband’s use
for their joint lives; remainder to the wife
for life. The husband became indebted, and
agreed with his wife and his creditor, to exer-
cise the jointuring power in her favour; and
that she should grant the creditor an annuity
for her life (equal in amount to the jointure),
charged upon her estate, and payable upon
his death. He was then so ill that his life
could not be insured. The agreement was
carried into execution. He soondied. Held,
that the execution of the power was not a
fraud upon the remainderman.

On the death of the husband, the remain-
derman refused to pay the jointure, and the
wife refused to pay the annuity. No attempt
was made during her life to enforce pay-
ment of either. Held, that her executrix
might sustain a bill for payment of the arrears
of the jointure, although the wife had not per-
formed her part of the contract by paying the
annuity.

“ A power of jointuring is given for the pur-
pose of enabling the husband to contract
matrimony upon advantageous terms, and
with a person of suitable fortune. It, in it-
self, contemplates a purchase. There is,
therefore, no objection to an arrangement
between a husband and wife, mutually stipu-
lating with respect to their properties in the
same way as they might have done before
marriage.”—Per Brady, C. B.; Baldwinv. Roche,
51. E.R.110. (E.E.)

1, A., on his marriage with C., being equi-
table tenant in tail of lands, conveyed these
lands to _B., as an indemnity against incum-
brances on other lands purchased by B. from
A. The legal fee subsequently descended
upon A., on the death of his father. C. then,
in 1813, joined in a deed, by which A. con-
veyed the estates to the use of himself, his
heirs, and assigns, habendum free from dower.
A. and C. levied a fine to the uses of the deed;
and A., by the same deed, charged lands held
pur autre vie, with an annuity of £200 a-year
for C., by way of jointure. A.died. The lands
charged with the jointure were not more than
sufficient to pay the prior incumbrances. C.
filed a bill claiming dower against all persons
interested in the lands, except bona fide pur-
chasers for value subsequent to 1813. Held,
that the bill should be dismissed with costs as
against B.; but that the account prayed for
should be decreed against the heir of said par-
ties claiming as volunteers under A. The bill
would have been dismissed against them also,
if, before levying the fine, there had been an
actual conveyance of the legal fee-simple for
the indemnity purposes; and the Court would
have no jurisdiction to relieve against the
fine.

Semble—On the legal fee descending on A.,
C. became dowable out of the lands.

If a man, previously to marriage, contract
to sell an estate, and marries before the con-
veyance is executed, his wife is not dowable
out of the estate—Loyd v. L., 2 Con. & L.
592. (C.)

[HUSBAND AND WIFE.]

 

his Realty. 377

2. By a marriage settlement, £400, the
wife’s fortune, was given to the husband, and
some terminable interests were conveyed by
his father to trustees to pay the wife, if she
survived, an annuity or “jointure” of £40;
and the husband covenanted that if these
properties should fail or be deficient, all the
real and personal estate he should die seized
of, &c., should be vested in the trustees to
raise £400, or buy an annuity of £40 for the —
wife. Held, sufficient to bar her right to
dower.— Killen v. Cumpbell, 10 I. E. R. 461.
CC.)

8. The receiver in a minor matter paid rent
due up to a certain period in respect of lands,
held from year to year, which had been be-
queathed to the minor. The executor had not
assented to the bequest. Held, that the minor
was liable to the subsequent rent only to the
extent of the profits received out of the lands,
notwithstanding the payment of the former
rent by the receiver.—In re Fair, 13 I. E, R.
278. (R.)

4, A limitation in a settlement, of the
settlor’s property to himself for life, or until
he shall become insolvent, with a provision
that it shall go over on his insolvency, is not
valid.— Casey’s Trusts, 4 I. C. R. 247. (C.)—
[Reversing decision below, 3 I. C. R.419. (R.)]

5. A., who had married in 1832, purchased
an estate in 1837, subject to a satisfied term,
of which he procured an assignment to a
trustee for himself. He afterwards executed
three mortgages, covenanting in each that the
lands were free from dower. On the occa-
sion of the first mortgage the deed assigning
the term was delivered to the solicitor for the
mortgagee. It did not clearly appear that he
retained the exclusive possession of it. Held,
that, notwithstanding the saving in the 8 & 9
Vic., v. 112, the term had ceased by the ope-
ration of that Act, and the mortgagees were
not entitled to its protection against A.’s
wife’s right to dower.—Zn re Sleeman, 4 I. C.
R. 563. (P.C.)

6. By a marriage settlement, lands belong-
ing tothe husband were conveyed in trust for
him, until he should be declared a bankrupt,
or should become insolvent, or make or enter
into any compromise with his creditors, or
take the benefit of the Insolvent Act; and,
after his decease, or other determination of
the trust declared for his benefit, during the
joint lives of the husband and wife, in trust to
permit the wife to receive, &c., for her sole use.
The husband took the benefit of the Insolvent
Act. Held, on a petition filed by his assignee,
that the Court had jurisdiction to declare the
limitation to the wife’s separate use, on the
husband’s insolvency, fraudulent and void,
although it might be void at law, and although
the legal estate should be in the wife and not
in the trustees.—Clarke v. Chambers, 8 I. C.
R. 26. (C.)

Il. 2. Wife's Interest in his Personal Estate.

7. Property was settled on a wife by an
ante-nuptial settlement “as and for her join-

48

 
378 Wife's
ture, in full lieu of any dower or thirds which
she could or might otherwise claim at common
law, out of all or any of the estates, real, per-
sonal, or freehold, of which B. (the husband)
now is, or at any time or times hereafter, shall
become possessed of or entitled to.” Held,
sufficient to bar the wife’s right to any part
of the personal estate of the husband dying
intestate —Gurly v. Gurly, 2 Dr. & Wal. 463.—
[Affirmed, Gurly v. G., 8 Cl. & Fin, 748.]

1. A covenant by the husband, in marriage
articles, to provide a jointure of £200 per
annum, such jointure to be levied onthe lands
of D. and B., though the jointure be paid,
will not bar the wife’s right to her distributive
share of the personal estate——Creagh v. C., 8
I. E. R. 68. (C.)

 

TI. Wire’s Prorerty.

1. Her Real and Personal Property.
a. Husband’s Rights in, and Powers
over her Real Estate.
b. His powersover her Chattels Real.
c. His interest in and powers over

her Personal Property.

2. Wifes Choses in Action.
a. Her right by Survivorship: how
affected by Settlement or Agree-

ment.
b. Effect of Husband’s Bankruptcy.
c. Husband's Rightby Survivorship.
d. Husband’s interest in, and gene-
ral powers over: how affected
by Settlement or Agreement.
e. Assignment of.
f. Reduction into Possession of.

3. Wife's separate Estate.

a. When so considered; when not.

b. Husband's Rights, Powers, and
Liabilities respecting it.

vc. Wife's Rights against her Hus-
band, or his Personal Repre-
sentative i receipt of her sepa-

. rate Estate.

d. Her consent before the Court.

e. Her alienation of it in Husband's
favour.

f. When and how bound; its Lia-
bilities.

g. Her Powers over it; restraint
upon Anticipation.

h. Receiver over it.

 

II. Wire’s Prorerry.

1 Her Real and Personal Property.
a. Husband’s Rights in, and Powers
over her Real Estate.
b. His Powers over her Chattels real.
c. His Interest in and Powers over
her Personal Property.

 

Ill. 1 a. Husbands Rights in, and Powers over
her Real Estate.

2. An insolvent, although he may obtain
property by his wife after marriage, has not
any right to put it in settlement for the be-
nefit of her and the children, if he then has
creditors.—Re Clark, 9.1. Jur. N.S. 384. (B.)

[HUSBAND AND WIFE.]

Property.

Ill. 1. b. His Powers over her Chattels Real.

 

III. 1. c. His Interest in, and Powers over her
Personal Property.

Ill. 2. Wife's Choses in Action.

a. Her Right by Survivorship: how
affected by Settlement or Agree-
ment.

. Effect of Husband’s Bankruptcy.

Husband's Right by survivorship.

. Husband's Interest in, and general
Powers over; how affected by
Settlement or Agreement.

e. Assignment of.

f. Reduction into Possession of.

Ill 2. a. Her Right by Survivorship: how
affected by Settlement or Agree-

ment.

3. A married woman, entitled to a rever-
sionary life estate in personalty, if she sur-
vives her husband, cannot, by consenting to
waive her interest, enable the Court to dispose
thereof.— Batt v. Cuthbertson, 2 1.E.R.200. (C.)
[Affd., 4 Dr. & War. 392. (C.)]

4. It is now established that the husband
cannot, even for value, assign his wife’s re-
versionary choses in action, so as to bind her if
she survives him.—Boz v. Jackson, 6 I. E. R.
174: Dr. Rep. temp. Sugden, 42. 2 Con. & L.
605. (C.)

Ill. 2. d. Husband’s Interest in, and general
Powers over: how affected by Set-
tlement or Agreemeut.

5. “Before I conclude, however, I wish to say
a few words as to the husband’s right to dis-
pose of the wife’s reversionary choses in action.
The cases of Purdew v. Jackson and Honner v.
Morton, which have been followed by Sir John
Leach in Watson v. Dennis, and by the same
Judge in Stamper v. Barker, and by Lord Cot-
tenham in Stiffe v. Everett (about the doubt
in which, however, I express no opinion what-
ever, not considering it properly before ine),
have established that the husband cannot,
even for valuable consideration, assign the
wife’s reversionary choses in action, so as to
bind the wife surviving. But although that
is settled now, I have no hesitation in saying,
that before those cases the law was considered
to be the other way.”—FPer Sugden, C.; Box v.
Jackson, 6 I. E. R. 195. (C.)

 

aes

 

 

6. Husband and wife both applied for the
fund. They had long lived separate, but she
was not in fault. She had a separate estate
for life, and a jointure settled on her upon his
death. She supported herself and children,
the husband, though possessing a sufficient
estate, not contributing to their support. The
Court ordered the fund to be paid to the wife.
The fund consisted of arrears of an annuity
charged on real estate in her favour— War-
ren vy. Newton, 7.1. E. R. 211. (R.)—[See s.
ce. 81. E.R. 130. (C.)]

 

7. By a deed of separation, reciting that the
Wife's

wife was entitled to certain specified property,
and that no provisionhad been secured to her
on the marriage, nor had any part of the property
to which she so became entitled,been limited to
the use of the issue (if any) of the marriage,
and that the husband had agreed to relinquish,
for a certain period, the premises, which were
the property to which he became entitled in
right of his marriage, and formed a provision
far exceeding that reserved to him for his
own support, they covenanted to live separate,
and that all the wearing apparel, &c., and all
other estate and effects, real or personal, to
which the wife should, by purchase, gift, de-
vise or bequest in her favour, &c., during the
coverture become entitled, should be and re-
main to her separate use ; and it was agreed
that the wife might dispose of such property
as if sole; and the trustees were empowered
to use the name of the husband in order to
recover any money, &c., which should there-
after be due to the husband in right of the
wife. The recited property was then made
the subject of settlement. The wife at the
time was entitled to a reversionary life inte-
rest in a fund, after the death of her mother,
who was then alive, which was not referred to
in the deed, and afterwards came into posses-
sion by the mother’s death. eld, on the con-
struction of the deed, that she, and not her
husband in his marital right, was entitled tothe
latter fund.—Jn re Andrews, 1 I.C.R.410. (R.)

1. The petitioner, A., entitled to £10,000
charged on the lands of G., in 1812, while a
ward of Court, married B., also a minor. An
agreement for a settlement was executed un-
der the direction of the Court. This agree-
ment was carried out by a formal conveyance
in 1818, after the petitioner and her husband
B. respectively attained majority. By this
settlement a jointure was charged for A. on
B.’s lands, and A.’s charge of £10,000 was as-
signed to X. upon trusts. A suit was institu-
ted for the sale of G. By the Master’s report
in that suit, in 1833, the £10,000 was described
asa debt due to B.’s wife. This report was
confirmed by a decree in 1836. An orderina
supplemental suit, in 1844, referred it to the
Master to ascertain the sums remaining due
under the decree of 1836; to report priorities;
and to allocate the fund. By his report in
May 1845, the Master found the sum due on
the foot of the £10,000 charge; and described
it as due to X. By the decree in the supple-
mental suit, in June 1845, the decree in 1836
was ordered to be carried into execution,
without prejudice to the rights of any of the
parties to re-hear the same ; and accounts were
directed of charges affecting G., of which ac-
counts had not before been taken ; of the pri-
orities; andin whom vested. The Master made
his report under that decree in 1847, and there-
by described the sum of £10,000 as payable to
X. In 1838, by a deed duly acknowledged, re-
citing the settlement of 1843, A. accepted a
diminished jointure. She also executed and
acknowledged two other deeds reciting the
settlement, but did not take any personal be-
nefit under any of those deeds. In 1852, B.
died. G. was sold in the I. E. Court, and on

[HUSBAND AND WIFE.]

 

Property. 379
an application by A. that the fund represen-
ting the £10,000 might be paid to her instead
of to X., the Commissioners refused to pay it,
without prejudice to any proceedings which she
might take in Chancery; certified that there
were funds in the I. E. Court applicable to the
payment of A.’s demand, if any; and that in
allocating them they would have regard to any
order to be made in A.’s suit in Chancery.
The petition was filed against the parties
claiming under the settlement, and prayed a
declaration that A. was entitled to the
£10,000. Held, that the Court of Chancery
had jurisdiction to make such a declaration of
right with respect to the funds in the I. E.
Court. That a settlement of a chose in action,
though made by direction of the Court, does
not bind an infant or married woman, if the
husband die before the chose in action is re-
duced into possession, or brought within the
control of the Court. That the proceedings
in Chancery did not operate as areduction into
possession. That a married woman acknow-
ledging a deed under the Fines and Recoveries
Act does not thereby give entire validity to
all instruments recited therein, though it deals
with interests created by such previous instru-
ments ; and that the petitioner was entitled to
be paid the sum charged on G.—Darcy v. Mad-
dock, 41. C. R. 40. (C.)

 

III. 2. e. Assignment of her Choses in Action.

2. Discussion upon the doctrine and autho-
rities applicable to the rights of a married
woman over her reversionary interest in per-
sonal chattels.

It is now established that a husband cannot,
even for value, assign, so as to bind her survi-
ving him, his wife’s reversionary chose in action.
—Box v. Jackson, 6 I. E. R. 174; Dr. Rep.
temp. Sugden, 42; 2 Con. & L. 605. (C.)

3. A judgment debtor, possessed of A. fora
term, and seised of B., conveyed by two con-
temporaneous deeds, A. and B., subject to
terms for paying his debts, to his own use for
life ; remainder to C. for life ; remainder over;
and X. to Z. and his heirs. Z. died, after de-
vising X. to his wife, who married S. After
the debtor’s death, the judgment creditor pro-
ceeded by elegit against X. §. and his wife
filed a bill against him for an injunction, and
to carry into execution the trusts of the deeds,
but were obliged to pay the amount due on
the judgment. The decree ordered C. to pay
8. and his wife the amount paid by them, and
interest ; or, in default, that A. and B. should
be sold for the terms, and that S. and his wife
should be paid the sum decreed to them. S.
assigned the benefit of the decree to R., who
filed a bill to carry the decree into execution.
Held, that the assignment by 8. did not bind
the personal representative of his widow.—
Rowland y. M‘Donnell, 13 1. E. R. 365. (R.)

4. A married woman having a jointure
charged on lands, by deed executed in pursu-
ance of the Act for the Abolition of Fines and
Recoveries, released part of the lands from
the jointure. Held, following the rule of law,
that the operation of the deed was to release
380 [HUSBAND

Separate
the whole—Lightburne v. M‘Evoy, 4 I. Jur.
179. (C.)

1. The wife’s equity to a settlement, against
the assignee of her chose in action, is an obliga-
tion attaching not on the property, but upon
the right to receive it. Therefore a plenary
suit is not necessary to enforce it. It may be
insisted upon on a motion to distribute the
fund.

The amount to be settled is discretionary
with the Court, and depends on the particular
circumstances of each case.

Husband and wife assigned her chose in
action. A decree, pronounced in a suit to
which the assignors were not parties, declared
their rights inter se to the fund. Held, that
the wife was not bound by the decree, and
might notwithstanding it, insist on her equity
to a settlement.—Marshall v. Gibbings, 4 I. C.
R. 276. (R)

 

Ill. 2. f£. Reduction into possession of Wife's
choses in action.

2. A sum of money having been bequeathed
to a wife, she and her husband joined in
giving a power of attorney to A. to receive the
money. A took out administration as attorney
of the wife, and received the money, which he
lodged at a banker’s to the credit of the hus-
band. The wife bequeathed the money. Her
will was proved by the husband, and admin-
istration, v. t. a. taken out by him. The
account having been afterwards settled, and
the balance struck, the husband released A.
from all claim. Held, that the giving of the
power of attorney to A. did not amount to a
reduction into possession by the husband, but
that the receipt of the money by A. and the
payment of it into the bank to the husband’s
credit did.

Form of a decree directing the transfer of
Neapolitan stock.—Roche v. R., 7 I. E.R.
436. (C.)—[See2 Jon. & L. 561. (C.)]

3. A married woman, being entitled to a
share in a legacy payable out of real estate,
she, by her husband’s consent, and with other
beneficiaries, agreed to accept the lands in
lieu of the money. The testamentary trustee
accordingly conveyed the lands to a trustee.
By a subsequent deed declaring the trusts, a

ortion of the lands was limited to the hus-

and and wife during their joint lives, and to
the survivor for life; remainder to such of
their children as the husband in his lifetime,
or the wife, if she survived him, should by
deed or will appoint. Held, by the Lord
Chancellor, that the assignment to the trustee
did not operate as a reduction into possession
of the wife’s chose in action; and that the
lands, into which the money was thereby con-
verted, became subject to the same uses and
trusts as the money.

(By the Lord Chancellor)—That the modi-
fication of the prior rights and interests of the
husband and wife in the lands formed a suffi-
cient consideration in the deed declaring the
trusts to make it a deed for value.—In re
Bayley’s Estate, 16 1. C. R. 215. (C.A.)

AND WIFE.] Estate.

ILL. 3. Wife's separate Estate.
a. When so considered: when not.
b. Husband’s Rights, Powers, and
Liabilities respecting it.

c. Wifes Rights against her Hus-
band, or his Personal Represen-
tative, in receipt of her separate
Estate.

. Her Consent before the Court.

e. Her alienation of it in Husband’s

favour.

£. When and how bound: its liabili-
ties.

Her Powers over it:
upon anticipation.

Receiver over it.

g. Restraint

h.

 

Ill. 3. Wife's separate Estate.

4. An application to have a consent made a
rule of Court, for the purpose of having a
transfer of a married woman’s reversionary
interest in stock made to the tenant for life,
having been refused by the M. R., the Lord
Chancellor, on appeal, confirmed his Honor’s
order, leaving the parties to file a bill— Bor
v. B., 2 Con. & L. 605; 61. E. R. 174. (C.)

5. Sequestration may be awarded against
the separate estate of a married woman, for
costs given against her.—Keogh v. Cathcart,
11 I. E.R. 280. (R.)}—[See s. ce. 12 1. E.R.
215. (C.)]

6. By marriage settlement, personal pro-
perty was assigned upon trust for the sepa-
rate use of the intended wife for life, remain-
der for her issue, as therein mentioned, in
default of issue, to “transfer the sum to, and
to the use of the intended wife, her executors,
&c., to and for her and their own use and
benefit.” Held, that the limitation in default
of issue did not create a trust for the sepa-
rate use of the wife. Part of the fund com-
prised in the settlement consisted of a life
annuity, and a policy of insurance on the life
of the c. g. vie of the annuity. There was no
direction in the settlement to pay the pre-
miums, but the trustee paid them out of the
income of the settled property, which was
payable for the separate use of the wife.
Held, that it was the duty of the trustee so to
apply the income, and that no lien in favour
of the separate estate was created upon the
policy or its proceeds, for the amount paid to
keep up the policy — Darcy v. Croft, 9 I. C. R.
19; Dr. Rep. temp. Napier, 403; 4 I. Jur. N. 8.
81. (C.A.)

II. 3. a. When so considered: when not.

7. A covenant to pay £100 to trustees for
the full and sole use of an intended wife
during her life, and that the interest or re-
sidue remaining at her decease should go to
the children of the marriage, makes the fund
settled the separate estate of the wife.

Where a married woman has been sup-
ported by her husband, no retrospective ac-
count is given of her separate estate against
his assets, and there is no distinction whether
it be pin-money or not, or whether it is se-

 

 
Separate

cured by articles remaining in fierd or an exe-
(a. trust.—Arthur vy. A. 11 I. E. R. 511.

1. A rentcharge was devised to a married
woman for her separate use for life, charged on
lands which the will vested in trustees. She
and her husband, by deed, assigned the rent-
charge, in consideration of £300, in trust to
pay interest at £6 per cent. on the £300, the
premium on a policy of insurance, and £3
a-year to the trustee for his trouble, the rest
to herself. Held, that the rentcharge, being
devised for the separate use of a married
woman for life, the deed did not require
acknowledgment under the Statute for the
Abolition of Fines and Recoveries.

That the déed was not void for usury, by
reason of the £3 reserved for the trustee.

That in a suit to charge the rentcharge
with the interest of the £300, the trustees
of the lands were not necessary parties.

Power of disposition and liability of a mar-

ried woman as to her separate estate con-
sidered.—Newcomen v. Hassard, 4 I. C. R. 268.

®)

 

Ill. 3. b. Husband’s Rights, Powers, and Lia-
bilities respecting Wife's separate
Estate.

2. A bill by husband and wife, as co-plain-
tiffs, to foreclose a mortgage, part of the
wife’s separate estate, was dismissed with
costs for want of prosecution, by the common
order, under 93rd Rule. The defendant, who
obtained the order, presented a petition un-
der the 3 & 4 Vic, c. 105, for a receiver over
other separate estate of the wife, not the
subject of the suit, to pay the costs. Held,
that a suit by a husband and wife as co-
plaintiffs, although for the wife’s sole benefit,
and relating exclusively to her separate pro-
perty, is the husband’s suit, and that he is
alone liable for the costs of it; that in this
case, the costs being the debt of the husband
and not of the wife, the order dismissing the
bill (although in form against both husband
and wife) was to be considered, under the 3 &
4 Vic., c. 105, s. 27, as a judgment against the
husband alone, and that the wife’s separate
estate was not liable to it.

Modern cases have decided that the hus-
band should not be a co-plaintiff in a suit con-
cerning the wife’s separate property.—Hac-
kett v. Farrell, 41. E.R. 515; Flan. & K. 553.
(R.)

38. Bill to foreclose a mortgage vested in
trustees for the separate use of the wife—
Held, that the husband, who was made a de-
fendant, was entitled to his costs out of the
fund.—Dillon v. M‘Carthy, 3 I. E. RB. 192.
(E.E.)

4. A bequest of chattels real to a feme sole,
to her separate use and benefit, vests the pro-
perty in her exclusive of marital control, and
her hushand is, in equity, a mere trustee for

[HUSBAND AND WIFE.]

 

Estate. 381

her. A receiver will not be appointed over
the property on the petition of the judgment
creditor of her husband.—Archer v. Rorke, 7
I. E. R. 478. (R.)

5. In a proceeding in which a married wo-
man and her husband are co-plaintiffs, or
co-p etitioners, a sequestration cannot issue
for costs against her separate estate.

Semble—It is otherwise if she sues by her
next friend.—Keogh v. Cathcart, 12 I. E. R.
215. (C.)—[Sees. c. 11 I. E. R. 280. (R.)]

6. In 1841, the lands of D. stood vested in
trustees for the separate use of E., a married
woman, during coverture, with a direction to
pay the rents as she should, by any writing,
direct. After termination of the coverture,
she was to have the legal estate. During her
coverture, E. wrote to the plaintiff’s testator
a letter in these words :—“ You hold a bond,
dated August 1841, for £500 sterling, signed
by my husband, T., and myself. I hold my-
self accountable for the payment of this
bond, with interest at £6 per cent., against
the lands of D., &c.; and should T. die, or
should I die, my son J., whom I have made
my heir, shall hold himself accountable to
you for the amount of this bond of £500 ster-
ling, and cause you to be paid, retaining you,
orin the egent of your death, your son W.,
as agent fo¥ the lands of D., until said bon
be discharged.—_Yours sincerely, E.” The
bond referred to in the letter, though signed
by E., was in the body of it only the bond of
her husband. Held, that the undertaking
contained in the above letter could not be
enforced against E. as a guarantee, no consi-
deration for her promise being set out on the
face of it; but that it was binding on the
lands as a declaration of trust by her.— Wil-
cocks v. Hannyngton, 51. C. R. 88; 71. Jur.
281. (C.)

 

Il. 3. c. Wife's Rights against her Husband, or
his representative, in receipt of her separate
estate.

7. When a married woman has been sup-
ported by her husband, no retrospective ac-
count will be given of her separate estate
against his assets. There is no difference
whether it be pin-money or not, or whether
is secured by articles remaining in fieri, or by
an executed trust.—Arthur v. 4.111. BE. BR.
511. (C.)

8. The arrears of an annuity charged on
real estate in favour of a married woman,
were brought into Court. The husband and
wife both applied for the fund. They had
lived separate for a long period, but the wife
was not in fault. She had a separate estate for
life, and a jointure settled on her after her
husband’s death; and supported herself and
children, the husband failing to contribute to
their support, although possessed of a suffi-
cient estate. The Court granted the applica-
tion of the wife, and ordered the fund to be
paid to her.— Warren v. Newton, 7 I. E. R. 211,
(R.)—[See s. c. 8. E. R. 130. (C.)
382 Separate

1. When a wife, living with her husband,
permits him to retain the interest of money
settled to her separate use, and charged on
his estate, she cannot recover more than one
year’s arrear. Though a demand by her on
her: trustee, requiring him to proceed to re-
cover the interest, may negative the inference
that her husband retained it with her assent,
the demand must be bona fide, and, if uncom-
plied with, followed up by proceedings, in
order to enable her to recover, as against his
creditors, more than one year’s arrear.—Cor-
bally v. Grainger, 41. C. R.173; 71. Jur. 265.
(R.)

2. When a married woman has been. sup-
ported by her husband, no retrospective ac-
count is given of her separate estate as
against hs assets. There is not any dis-
tinction whether it be pin-money or not, or
whether it is secured by articles remaining in
Jiert, or an executed trust.—Arthur vy. A., 1i
I.E. R.511. (C.)

8. A married woman has no power of dis-
position over an interest in realty limited to
her for her separate use upon a contingency,
viz., the insolvency of her husband, until the
event has happened upon which her estate
arises.—Bestall v. Bunbury, 13 I. C. R., 318.
(R.)\—[See s. c, tbid, 549. (C.)] *

4. Two sums of money, the property of a
wife, were lent by her to her husband, who
gave her a cheque for one sum, and for the
other a letter acknowledging the receipt of it,
and placing it to her credit in his firm. Held,
that she was entitled only to one year’s inte-
rest on the sums, against her husband’s as-
sets.—Mackey v. Maturin, 15 I. C. R. 150. (R.)

5. Therule of the Court, that an arrear of
a wife’s separate estate or pin-money cannot
be recovered against the husband, being
founded on the presumption that it has been
applied to the wife’s maintenance, or to the
general purposes of the family, with the wife’s
assent, does not apply when there is a receiver
over the property liable to pay it. Nor has it
any application against a purchaser for value
of the separate estate or pin-money.

An I.E. Court order for the sale of lands,
the subject of a suit in the Court of Chan-
cery, did not, without an order of the latter
Court, stay the suit so as to prevent its being
dismissed by the 81st G. O. of 1843.

An order appointing a receiver in a suit
praying a sale for payment of incumbrances,
did not prevent the suit being dismissed by
the 81st G. O. of 1843.

A defendant in an incumbrancer’s suit is
not before decree in privity with the rents
received by the receiver, though he files an
answer claiming a charge on the lands.

In Ireland, a creditor having an annuity or
a charge on the lands, may obtain an order
that the receiver shall pay him his annuity, or
interest on his charge, in the proper priority,
without filing a petition to extend the re-
ceiver.—foss v. F., 15 1. C. R. 215. (R.)

RA

hr
bee

[HUSBAND AND WIFE.]

 

Estate.

III. 3. d. Wife’s Consent before the Court, sc.

6. By a post-nuptial settlement the husband,
V., executed his bond to trustees upon trust, if
his wife, X., survived him, to raise £1000; and
pay that sum to her to dispose of as she might
think proper; but if V. should in her lifetime
pay that sum to the trustees, then upon trust
to invest it, and pay the interest to V. for life;
and, after his decease, to pay the principal, and
all interest due thereon, to X. for her separate
use. Shortly after the execution of this deed,
V. paid the money to the trustees, who there-
upon invested it. V. and X. subsequently
filed a bill, seeking to have the fund trans-
ferred to V. absolutely, X. offering to waive
her interest in the fund. Held, that as X.’s
interest depended upon the contingency of her
surviving her husband, the Court could not,
even upon her consent, order the transfer.—
Batt v. Cuthbertson, 4 Dr. & War. 392. (C.)—
[Affg. 21. E. R.200. (C.)]

7. A consent that one-fourth of £500, to
which a wife was entitled, be paid to her and
to her husband, was made a rule of Court,
without her being examined to waive her
equity.—Loughrey v. Lahiffe, 3 I. E. R. 511.
(E.E.)

8. A married woman, entitled to a fund in
Court, entered into a consent with her husband
as to the disposition of it ; “ the parties then
came into Court, and the. wife, concealing
from the M. R. the fact that she had pre-
viously signed this consent, entered into another
and totally different contract for the disposition
of the fund. She was upon that occasion, ex-
amined apart from her husband, with that care
which the law throws about a married woman,
for the purpose of protecting her from the un-
due influence of her husband ; was asked by the
Judge before whom she was brought, whether
any settlement of the money had been made,
and answered in the negative ; told him that
she was willing to waive her equity; and an
order for payment of the money to the husband
was made, without any reference to the con-
sent. Here, then is either deception on her
part, or there is a relinquishment of her right
under the consent. In either case she is
bound by the disposition of the fund, which
she assented to upon her examination before
the Judge, because a feme covert is as much
bound by the consequences of a fraud on her
part, as a feme sole; I mean fraud in the view
of this Court, for it would amount to what
this Court considers fraud, to have told the
Judge that there was no agreement for a set-
tlement of this fund, if she meant that the
consent should have been acted on.” —Jones v.
Kearney, 41. E.R. 87; 1 Dr. & War. 184; 1
Con. & L. 34. (C.)

9. By a marriage settlement, money was
vested upon trust to pay the interest to the
husband for life; after his death to pay the
interest to the wife for life; and after the
death of the survivor, upon trust for the child-
ren of the marriage in equal shares, in de-
fault of appointment by the husband. The
Separate

husband died, leaving his wife and three
daughters surviving, and without appointing
the fund. One of the daughters married in
the lifetime of her mother, without making
any settlement of her share of the fund. The
husband and wife then assigned their share
of the fund to the wife’s mother. The fund
having been paid into Court, a consent was
signed by the mother, the unmarried daughters,
and the husband and wife, that the entire of
the fund should be paid to the mother. A
bill was filed to obtain payment accordingly.
Held, that the assignment did not bind the
wife’s right by survivorship, and that the
Court had no jurisdiction to take her consent
to waive that right—Borv. B, 61. E. R.
174; 2 Con & L. 605. (C.)

1. In Ireland, money which, not exceeding
£100, is in Court and belongs to the wife,
may be paid to the husband without her con-
sent.—In re Surridge’s Trusts, 17 I. C. R. 163.

)

IL. 3. e. Wife’s alienation of her separate
property in her Husband’s favour.

2. A marriage settlement vested a judg-
ment in trustees, and declared that if the
wife should, with her husband’s consent, think
it advisable to call in the sum thereby secured,
the trustees should permit her to use her dis-
cretion respecting its re-investment. One
trustee having died, and the other being out
of the jurisdiction, the wife, with her hus-
band’s consent, called in the money. They
assigned the judgment to the lender. The
surviving trustee refused to execute the as-
signment, and desired to be discharged from
the trusts. The Court, thinking that the
parties’ real object was, not to continue the
money in settlement, but, under the colour of
the power to get it out of settlement, refused
to appoint new trustees——Jn re Molony, 2
Jon. & L. 391. (C.)

3. Where the trustee of a fund settled on
a husband until insolvency, and then to the
separate use of his wife, at the urgent solici-
tation of the wife, committed a breach of trust
by lending part to the husband, and he became
insolvent, whereupon the wife claimed the
whole fund—AHeld, that the trustee was re-
sponsible to her, as during the husband’s
estate she could not bind the remainder to her
separate use.

It is no answer to such aclaim that the
husband’s insolvency was concerted, if that
was done merely to evade his debts; but
Semble, it would be a defence if the insolvency
was concerted for the purpose of calling the
wife’s estate into existence——Mara v. Man-
ning, 81. E. R. 218; 2 Jon. & L. 311. (C.)

4. By marriage settlement of 1824, lands
were settled, subject to a jointure for the in-
tended wife. In 1831 part of the lands was
sold, the wife having agreed to release her
jointure as to that part, and a fine was levied.
In 1833 another part of the lands was sold
freed from the jointure, and the fine levied.
Held, that the wife’s right to jointure was gone

 

[HUSBAND AND WIFE.]

 

Estate. 383

only so far as related to the sold land. The
remaining part of the lands was directed to be
sold, subject to the jointure.—In re Hartford,
31. Jur. I. E. C.)

5. When a married woman joined her hus-
band in signing a promissory note, under the
representation made by him, that if she did
not sign the note he would be arrested, and
she and his children left to starve—Held, that
there was no such exercise of undue influence
as would prevent the amount of the note from
being a charge upon her separate estate.

The income of the separate property being
small, and there being already a creditor in
possession, the Court refused to appoint a
receiver; but directed the trustees to pay the
amount out of the income as it should come
to their hands.—Boyce v. Johnston, 3 I. Jur.
N.S. 401. (R.)

6. Personal estate was by settlement vested
on trust for R.,a married woman, for life, with-
out power of anticipation ; if no issue, and M.
the husband, survived R., as she should ap-
point; if R. survived M., for her absolutely.

W., acting trustee, at R.’s instance, applied
the trust fund in discharge of M.’s liabilities.
M. died. By R.’s request W. took no steps to
realise M.’s assets. After some years, R. mar-
ried again. Her settlement recited her wish -
to give W. credit for all payments made by the
trustees at her request in breach of trust.
Held, that R. had lost her right to make the
trustee liable.—Rutherfoord v. Maziere, 131. C.
R. 204; 71. Jur. N. 8. 214. (C.)

 

Ill. 3. f. When and how separate Estate is
bound : tts Liabilities.

7. A married woman was entitled, during the
joint lives of herself and her husband, to the
interest of stock, to her separate use, without
power of anticipation. There were limitations
over as to the principal in favour of herself
and her husband. The Court, upon petition
by a judgment creditor of the husband and
wife, made an order under 3 & 4 Vic., c. 105,
charging the judgment upon the stock, with-
out prejudice to the wife’s right of receiving
the interest duriug her coverture.—Carter v.
Mahon, Flan. & K. 342; 41. E. R. 805. (R.)

@

8. The wife’s estate was upon her marriage
conveyed to the use of the husband until
bankruptcy, insolvency, or until an elegit
should issue against the lands on foot of any
judgment against him ; and from the happen-
ing of any of these events, then to the use of
the wife for her separate use. Held, that a
judgment creditor of the husband could not
appoint a receiver over the lands.— Woodroofe
y. Marshall, 8 I. E. R. 670, (R.)

9. The liability of the separate estate of a
married woman for a debt, which would be a
simple contract debt in the case of a person
sui juris, is not barred by the lapse of six
years from the accruer of the cause of action.
Vaughan vy. Walker, 6 I. C, R. 471; 2 1. Jur.
N.S. 401. (C.)-[Affd., 8 I. C.R. 458; 31.
Jur, N.S. 208. (C.A.)]
384 [HUSBAND

Separate

1. The separate estate of a feme covert is
liable in Equity when she has obtained goods
upon credit, though there be no written con-
tract, nor any reference to her sepdeate estate.
If it be an interest in realty, the Statute of
Frauds prevents that liability being enforced,
if there be no writing.—Burke v. Tuite, 10 I.
C. R. 467. (C.)

2. In Ireland, a loan of trust funds, on a
second mortgage, is not, of itself, and in the
absence of other circumstances, a breach of
trust.

Money charged upon lands was by mar-
riage settlement assigned, upon trust to pay
the interest to A., the husband, for life, and
after his death in trust to pay the wife, B., a
jointure; provided it should be lawful for A.,
with the consent of the trustees, in writing,
to call in the trust fund, and lay out and dis-
pose of it in purchasing an estate of inheri-
tance or freehold, for a term of at least three
lives; or a lease for a term of years whereof
99-shall be unexpired, or otherwise advan-
tageously; which purchase or disposal when
so made should be settled to the same uses,
&c. A portion of the fund was paid to the
surviving trustee, who lent it to A., on a re-
lease being executed by A.and B., and C. their
son; and acknowledged and enrolled under
the Act for the Abolition of Fines and Reco-
veries. Held, after the death of A., in a suit
by B. to replace the trust fund, that the re-
lease as to her was inoperative. The phrase,
money subject to be invested in lands, in the
4&5 W. 4, c. 92, s. 68, means money directed
to be so invested.— Smithwick v. Smithwick, 12
I. C. R. 181; 61. Jur. N. 8. 282. (R.)

 

III. 3. g. Wife’s Powers over her separate Es-
tate; Restraint upon Anticipation.

3. A married woman was entitled, during
the joint lives of herself and her husband, to
the interest of stock, to her separate use,
without power of anticipation. There were
limitations over as to the principal in favour
of herself and herhusband. The Court, upen
petition by 2 judgment creditor of husband
and wife, made an order under 3 & 4 Vic., c.
105, charging the judgment upon the stock,
without prejudice to the wife’s right of receiv-
ing the interest during her coverture.— Carter
y. Mahon, 41. E. R.305; Flan. & K. 342. (R.)

4. A feme covert, to whose separate use a
reversiunary interest in property has been
given, may assign that interest as if she were
a feme sole. Her assignment will bind her
right if she survives her husband.—Kane v.
Johnston, Jones & Ca. 235. (E.E.)

5. An application to have a consent made
a rule of Court, for the purpose of having a
transfer of a married woman’s reversionary
interest in stock made to the tenant for life,
having been refused by the M. R., the Lord
Chancellor, on appeal, affirmed his Honor’s
order, leaving the parties to file a bill.—Box
v. B., 2 Con. & L. 605; 61. E.R. 174. (R.)

 

AND WIFE.] Estate.

6. A money fund was vested in trustees to
permit the intended wife, during the joint lives
of herself and the intended husband, to take the
interest for her separate use. After his death,
for her and her assigns during her life, if she
survived him; after her decease, as to one
moiety, it was covenanted that it should be
vested in trust for her sole absolute use, to be
disposed of by her in such manner as she
might appoint by deed or will, notwithstand-
ing her coverture: in default of appointment
upon further trusts. Held, that during cover-
ture she could not absolutely dispose of that
moiety of the trust fund.—Nizon v. N., 8 I.
E. R. 254; 2 Jon. & L. 416. (C.)

7. The settlement recited an agreement to
settle the lady’s property for her sole use, free
from her husband’s debts, control, &c., and to
be paid on the receipt only of the lady, or of
such appointee as she should, by writing under
seal, in each half year, for that purpose ap-
point ; no such appointment to extend beyond
half-a-year; but to be capable of being re-
newed half-yearly; and no act or authority
whatever to be capable of empowering the
husband, or any one deriving through him, to
take the property ; but the lady to have power
and authority in every other respect to dis-
pose of the same, and the accumulations
thereof, by deed or will, at all times, &c., as
she should think fit, as fully as if she had
remained sole and unmarried: and in case of
her dying intestate, the property, and all accu-
mulations thereof, to pass to her heirs and
next-of-kin. The settlement, after vesting
the property (a portion of which consisted of
two annuities or rentcharges) in the trustees
thereof, proceeded to declare that they should
have, receive, and take said annuities from
time to time, half-yearly, as same should be-
come due or be paid; and afterreceipt thereof,
pay over the net produce to the lady, on her
own receipt, free from her husband’s control,
&c. And in a subsequent part of said settle-
ment, it was declared that the trustees should
carry into effect its true intent, &c., so as to
maintain and apply to the sole use, &c., of
the lady, and subject to her sole control, &c.
(notwithstanding coverture), all and every
her property, according as she should think
fit, and so as to be payable into her own
hands; and her own sole receipts, all in her
own handwriting, and signed by her, to be the
sole and only acquittances for the same.

After the marriage, and during the hus-
band’s lifetime, the lady joined in executing
a promissory note to the petitioner, to secure
a debt of her own, and the suit was to raise
the amount out of the securities. Held, that
she was restrained during her husband’s life
from anticipating the annuities in that way;
and accordingly the petition for a receiver
over same was dismissed.—Dodlan v. Blake, 3
I. C. R. 340. (C.)

8. The interest due at the time of a fund
settled to the separate use of a married
woman, with a clause against anticipation,
charged with the amount of a promissory
note indorsed by her.
Separate [HUSBAND

But, Semble—Interest which accrued due
after the date of the promissory note could
not be charged with it.— Fitzgibbon v. Blake, 3
I. C. B..328. (C.)

1. A rentcharge was devised to a married
woman, for her separate use for life, charged
on lands vested in trustees by the same will.
She and her husband by deed assigned the
rentcharge, in consideration of £300, in trust
to pay interest at £6 per cent. on the £300;
the premium on a policy of insurance; £3 a-
year to the trustee for his trouble; and the
residue to herself. eld, that the rentcharge

being devised for the separate use of a married
woman for life, the deed did not require ac-
knowledgment under the Statute for the Abo-
lition of Fines and Recoveries.

That the deed was not void for usury, by
reason of the £3 reserved to the trustee.

That in a suit to charge the rentcharge with
the interest of the £300, the trustees of the
lands were not necessary parties.

Power of disposition and liability of a mar-
ried woman as to her separate estate consi-
dered.—Newcomen v. Hassard, 4 1. C. R. 268.
(R)

2. An estate of descendible freehold, set-
tled to the separate use of a married woman,
cannot be validly conveyed by her without fine
or statute deed.—Adams v. Gamble, 11 I. C. R.
269. (C.)—[Reversed on appeal, 12 I. C. R.
102. (C.A.)

3. The Court will not permit a married
woman to dispose of any reversionary in-
terest to which she may be entitled in a fund
in Court.—Jn ve Mahon, 6 I. Jur. N. 8. 184.
(L.E.C.)

4, A married woman can dispose of free-
holds, settled to her separate use, as if she
were a feme sole.—Adams vy. Gamble, 12 I. C.
R. 102; 61. Jur. N. 8. 832. (C.A.)—[L. C.
dissentiente. | :

5. By a post-nuptial settlement, the wife’s
father conveyed a term of years, on trust for
the husband, for life; or until he should be-
come bankrupt; or take the benefit of any
Act, &c.; or assign his property for the benefit
of his creditors; or otherwise fail in his cir-
cumstances; and from any such event, or from
his decease, on trust to pay the wife during her
life the rents, &e.; after the decease of both,
in trust for the children; provided that, if
the husband should become bankrupt, or take
the benefit of the Insolvent Act; or assign
his property for the benefit of his creditors;
or otherwise fail in his circumstances, his life
interest should cease, and the trustees should
pay the rents to the wife, for her separate use.
The husband and wife, by a deed not ac-
knowledged by the wife, mortgaged all the
estate and interest, of which the wife “was
then, or should or might, upon or after the
death of the husband, be in anywise entitled
to,” and all the estate, &c., both at Law and in
Equity, of the wife to the premises. 7

A petition was filed to foreclose the mort-

 

AND WIFE.) Estate. 385

gage, to which the trustees or the children
of the marriage were not parties. The hus-
band, pending the suit, took the benefit of
the Insolvent Act. Held, that temporary em-
barrassment of the husband, did not bring into
operation the limitation to the separate use of
the wife.

That the insolvency of the husband after
the filing of the petition, did not entitle the
mortgagee to a decree to sell the wife’s sepa-
rate estate.

That the trustees should have been made
parties to the suit.

That the separate estate did not pass by the
terms of the mortgage deed.

Semble—A feme covert cannot, by a deed not
acknowledged, convey a contingent interest in
a term of years settled to her separate use.—
Bestall v. Bunbury, 13 I. C. R. 549. (R.)

6: A married woman has no power of dis-
position over an interest in realty, limited to
her for her separate use upon a contingency
(viz.the insolvency of her husband), until
the event has happened upon which her es-
tate arises.—Bestall v. Bunbury, 13 I. C. R.318
(C.A.)

Til. 3. h. Receiver over Separate Estate.

7. A bill filed by husband and wife to fore-
close a mortgage, the separate property of the
wife, was dismissed with costs. The Court,
upon petition under the 3 & 4 Vic., c. 105,
refused to appoint a receiver over other pro-
perty to which the wife was entitled to her
separate use.—Hackett v. Farrell, Flan. & K.
549; 41. E.R. 515. (R.)

8. By marriage settlement, freehold lands
of the wife were conveyed upon trust to pay
the rents, after payment of the head rent and
renewal fines, to the wife, during her life, to
her separate use. A judgment was after-
wards obtained against the husband and wife.
The Court refused to appoint a receiver over
such separate estate upon the petition of the
judgment creditor, under the 5 & 6 W.4,c.
55, and 3 & 4 Vic., v. 105; holding that the
separate estate of a feme covert is cognizable
only in a Court of Equity; that her right of
disposition over it is not within the meaning
of “a disposing power” in the 19th sec.
of 3 & 4 Vie. c. 105; and that that section
does not render extendible under an elegit any
species of trust estate which was not extend-
ible under the Statute of Frauds.—Digby v.
Irvine, 61. E.R. 149. CR.)

9. A bequest of chattels real to a feme sole,
to her separate use, vests the property in her
exclusive of marital control; and her hus-
band is, in Equity, a mere trustee forher. A
receiver will not be appointed over the pro-
perty on the petition of the judgment creditor
of her husband.—Archer v. Rorke, 7 I. E. R.
478. (R.)

10. The settlement recited an agreement
to settle the lady’s property for her sole use,

49
386 Their

free from her husband’s debts, &c.; and to be
paid on the receipt only of the lady, or of
such appointee as she should, by writing,
under seal, in each half year for that purpose
appoint; no such appointment to extend
beyond half a-year, but to be capable of being
renewed half yearly ; and no act or authority
whatever to be capable of empowering the
husband, or any one deriving through him, to
take the property; the lady to have power
and authority in every other respect to dispose
of it, and its accumulations, by deed or will,
at all times, &c., as she should think fit, as
fully as if she had remained sole and unmar-
ried. If she died intestate, the property and
all accumulations thereof, to pass to her heirs
and next-of-kin. The settlement, after ves-
ting the property (a portion of which con-
sisted of two annuities or rentcharges) in
trustees declared that they should have, re-
ceive, and take such annuities from time’ to
time, half yearly as same should become due
or be paid; and after receipt thereof pay the
net produce to the lady, on her own receipt,
free from her husband’s control, &c. During
coverture she joined in executing a promis-
sory note to the petitioner to secure a debt of
her own. This suit was instituted to raise
the amount out of the annuities. Held, that
during coverture she was restrained from an-
ticipating the annuities in that way; and the
petition for a receiver over them was dis-
missed.—Doolan v. Blake, 3 I. C. R. 3840. (C.)

IV. Huspanp.
1. His liability for Wife's debts and acts.
a. Before Marriage.
b. During Coverture.
cv. During Separation.

 

IV. 1. a. Before Marriage.

1. After a deed of submission to arbitration
was executed, L.. a female party, whose rights
were principally affected, married. Her hus-
band took no part in the proceedings. The
arbitrator made his award, reciting the mar-
riage and the entering of arule to proceed
against E. and her husband; awarded that
they should pay certain sums; and also that
C., another party, was personally liable for
costs. The arbitrator had refused to adjourn
the case to enable ©. to procure evidence;
and the plaintiff had declared that he would
not seek to make C. personally liable, in con-
sequence of which he consented not to exa-
mine C.on his behalf. A conditional order
was obtained to confirm the award, unless
cause in M. Term, and no motion to set it
aside ; but cause was shown against making
the order absolute in the sittings after M.
Term. Held, that the marriage of E. was a
revocation of the jurisdiction of the arbi-
trator. That the husband did no act to waive
the revocation, and not being a party to the
submission, he could not be bound by it.

That objections dehors the award are ex-
aminable on a rule to show cause against
confirming it.

[HUSBAND AND WIFE.]

 

Liabilities.

Semble—That 8 & 4 Vic., ¢. 105, ». 53, does
not apply to Courts of Equity.—Roche v.
Roche, 8 I. E. R. 638. (R.)—[See Roche v. R.,
71. E. R. 486; 2Jdon.& L. 561. (C.)]

V. WIFE.

1. Her Powers and Disabilities during Co-
verture: Conveyances to her.
2. Her Liabilities during Coverture.
3. Her Rights.
a. When she is bound.
b. On Husbands Bankruptcy or In-
solvency.
c. Her equity for a Settlement.
d. Alimony.—[See 30 & 31 Vic., c.
11.]
Separate Maintenance.
. Paraphernalia.
. Pin-money.

To rh OD

 

V. 1. Wife's Powers and Disabilities during Co-
verture: Conveyances to her.

The 2&3 Vie., c. 54, enacts that the Lord
Chancellor and M. R. respectively may, upon
the petition of the mother of infants in the
sole custody or control of father, or of guard-
ian, make order for the access of petitioner
to such infants. If such infants be under
seven years of aye, may make order for the
delivery of them to such petitioner until that
age.—Sec. 1.

Affidavits sworn before any Master, ordi-
nary or extraordinary, receivable under this
Act. False swearing therein punishable as
perjury.—Sec. 2.

Orders hereunder to be enforced by process
of contempt.—Sec. 3.

No mother guilty of adultery to be entitled
to the benefit of this Act.—Sec. 4.

2. When the children were in the custody of
the mother—Semble; That 2 & 3 Vic., c. 54,
does not enable her to resist the father’s
right to have them delivered over to him.—
Corsellis v. C., 1 Dr. & War. 235. (C.)

3, A., an infant, by articles executed pre-
viously to her marriage, covenanted to settle
her real estate. After she came of age, and
during her coverture, she executed a settle-
ment ip pursuance of the articles, but did not
levy a fine. Held, that she was not bound
either by the settlement or by the articles.
Brown v. M:Clintock, 7 I. E.R. 347. (C.)

4. The Court has not power under the 28
G. 3, v. 85, to order the Master to execute a
conveyance in the name of a feme covert who
is out of the jurisdiction Nugent v. Piers, 12
I.E. R. 188. (R.)

5. A married woman, by deed executed in
pursuance of the Act for the Abolition of
Fines and Recoveries, released from her join-
ture part of the lands charged with it. Held,
that the deed released all the lands.—Light-
burne v. M‘Evoy, 41. Jur. 179. (C.)
Wife's

1, Semble—Under the 4 & 5 W. 4, c. 78, the
Court will not order the Master to execute,
for a married woman, a conveyance of real
property.—Foster v. Higgins, 7 I. Jur. N. S.
75. (R.)

2. Quere—Can a married woman validly con-
sent to a particular form of order?

A married woman, having, during her hus-
band’s life and after his decease, acted upon
such an order, was, nevertheless, permitted to
make it a ground of appeal to the House of
Lords. ;

A suit respecting property devised to a
married woman was instituted against her
and her husband. Decree for an account.
The Master reported due from both a sum
which the Court ordered the widow to pay
into Court within a limited time. The sum
was composed of rents received from the pro-
perty before the marriage, and during cover-
ture and viduity.

Quere—Was the order valid?—Boyse v.
Rossborough, 2 I. Jur. N. 8. 265. (H.L.); s. ¢.
6 H. L. Cas. 2.

3. A., having a general power of appointment
over a fund which was settled on her husband
for life, bequeathed several legacies thereout;
the remainder of the fund, share and share
alike, to her sisters; and, as to “any other”
residue of moneys or property not specified or
disposed of, directed it to be given, share and
share alike, to her then surviving sisters, who

might be living when her will and the be-|.

quests therein might become available. One
of the sisters died in A.’s lifetime, who died
. before her husband. Held, that the lapsed
share of a deceased sister passed, under the
general residuary clause, to the surviving sis-
ters. That those sisters only who survived
the husband took under the general residuary
clause.—Hickson v. Wolfe, 9 I. C. R. 144.
(C.A.)—[See s. c. 71. C. R. 452.]

4, An alien’s wife can dispose by will of her
chattels real, situated in the United Kingdom,
as a feme sole-—Goods of Chateauvillard, 8 I.
Jur. N. 8.197. (P.)

 

V. 2. Wife's Liabilities during coverture.

5. A married woman acknowledging a deed,
under the Fines and Recoveries Act, does not
thereby give entire validity to all instruments
recited in such deed, even though it may deal
with interestscreated by such previous instru-
ments.—Darcy v. Maddock, 4 1. C. R. 40. (C.)

6. In 1841, the lands of D. stood vested in
trustees for the separate use of E., a married
woman, during coverture, with a direction to
pay the rents as she should, by any writing,
direct. After the termination of the cover-
ture, she was to have the legal estate. During
her coverture, E. wrote to the plaintiff's tes-
tator a letter in these words:—‘ You hold a
bond, dated August 1841, for £500 sterling,
signed by my husband H. and myself. I hold
myself accountable for the payment of this
bond, with interest at £6 per cent., against

[HUSBAND AND WIFE.]

 

 

Rights, se. 387

the lands of D., &c.; and should Mr. H. die,
or should I die, my son J., whom I have made
my heir, shall hold himself accountable to you
for the amount of this bond of £500 sterling,
and cause you to be paid, retaining you, or in
the event of your death, your son W. as agent
for the lands of D., until said bond be dis-
charged.—Yours sincerely, E.” The bond re-
ferred to in the letter, though signed by E. was
in the body of it only the bond of her husband.
Held, that the undertaking contained in the
above letter could not be enforced against E.
as a guarantee, no consideration for her pro-
mise being set out on the face of it; but that
it was binding on the lands as a declaration of
trust by her.— Wilcocks v. Hannyngton, 5 I. C.
R. 38; 71. Jur. 281. (C.)

 

V. 3. Wife's Rights during coverture.

7. A settlement of a chose in action, though
made by direction of the Court, does not bind
an infant, or a married woman, if the husband
die before the chose in action is reduced into
possession, or brought within the control of
the Court—D’Arcy v. Maddock, 4 I. C. R. 40.

©.)

8. A married woman can dispose of free-
holds settled to her separate use as if she were
a feme sole. Dissentiente, the Lord Chancellor.
—Adams vy. Gamble, 12 I. C. R. 102. (C.A.)—
[Overruling decree, 11 I. C. R. 269. (C.)]

 

V. 3. a. When the Wife is bound.

9. A.deed was executed by a married woman,
conveying away without consideration an an-
nuity belonging toher. She had been induced.
by misrepresentations to execute the deed ;
had not read it; and had been misinformed
as to its contents, which prejudiced her. Held,
that it did not bind her—Blake v. Hyland, 2
Dr. & Wal. 397. (C.)

‘10. A husband, tenant for life of his wife’s
reversionary interest in a legacy, vested his life
estate in the chose in action upon trust, first, to
secure the payment of interest on a mortgage
of other portions of his property, and, next for
the sole and separate use of his wife. She
joined in this deed of indemnity. The hus-
band subsequently became personal represen-
tative of the fund out of which the legacy was
payable ; and wasted the assets. In a suit to
administer the assets the legacies were decreed
to abate. The wife presented this petition
against the trustees to be recouped out of her
husband’s life estate for the loss which her
interest in the legacy had sustained by her hus-
band’s devastavit. Held, that being a feme sole
as to her husband’s life interest which became
vested in her, she was bound by the contract
entered into with the mortgagee; and as
against him had no equity to be recouped.—
French v. Billing, 4 I. Jur. 189. (C.)

11. The interest due at the time of a fund
settled to the separate use of a married
woman, with a clause of anticipation, charged
with the amount of a promissory note indorsed
by her.
388 Equity to a

Semble—Interest which accrued due after
the date of the promissory note could not be
charged with it.—Fitzgibbon v. Blake, 3 I. C.
R328. (C.)

1. A settlement of a chose in action, though
made by direction of the Court, does not bind
an infant; or a married woman, if the hus-
band die before the chose in action is reduced
into possession, or brought within the control
of the Court.—D’Arcy v. Maddock, 4 I. C. R.
40. (C.)

2. The wife’s equity to a settlement, against
the assignee of her chose in action, is an obliga-
tion attaching, not on the property, but upon
the right to receive it. A plenary suit is not
necessary to enforce it. It may be insisted on,
in a motion to distribute the fund.

The amount to be settled is discretionary
with the Court, and depends on the circum-
stances of each case.

Husband and wife assigned the chose in action
of the wife. A decree was pronounced in a
suit to which the assignors were not parties,
declaring the rights of the assignees inter se
to the fund:—Held, that the wife was not
bound by the decree, and might, notwithstand-
ing it, insist on her equity to a settlement.
—Marshall v. Gibbings, 4 I. C. R. 276. (R.)

 

V. 3. b. On Husband’s Bankruptcy or Insolvency.

3. A fund in Court amounting to £1000, the
property of a married woman, upon whom no
settlement had been made, whose husband
had been discharged as an insolvent, ordered
to be applied in the following manner :—£600
to the wife and children, and £400 to the as-
signee, for the benefit of the creditors.—Na-
pier v. N., 1 Dr. & War. 407. (C.)

4. Trustees may prove in bankruptcy for
interest on a bond settled on a wife in the
event of bankruptcy—Re O’Brien, 8 I. Jur.
N.S. 217.

5. The limitations of a fund in the event of
husband failing in his circumstances do not
come into operation on his temporary embar-
rassment.—Bestall v. Bunbury, 13 I. C. R. (B.)

6. An insolvent, if he has creditors, cannot
settle after-acquired property.—Re Clark, 9 I.
Jur. N. §. 384.

 

V. 3.0. Wifes Equity to a Settlement.

7. A fund was brought into Court, being the
arrears of an annuity charged on real estate,
in favour of a married woman. The husband
and wife both applied for the fund. They had
lived separate for a long period, but the wife
was not in fault. She had a separate estate
for life, and a jointure settled on her after her
husband’s death, and supported herself and
children; the husband failing to contribute to
their support, although possessed of a suffi-
cient estate. The Court granted the applica-
tion of the wife, and ordered the fund to be
paid to her.

[HUSBAND AND WIFE.]

 

Settlement.

The wife’s equity to a settlement out of her
own choses in action is in no respect founded
on, or influenced by, the misconduct of the
husband, and is the simple result of the rule,
that he who seeks equity must do equity.

The right of the wife extends to her in-
come, whether it arises from real or personal
estate, if that interest be an equitable one.—
Warren v. Newton, 71. E.R. 211. (R.)—[See
s.c. 8 I. E. R. 130. (C.)]

8. The wife’s equity to a settlement out of
funds in Court to which the husband is en-
titled, in her right, does not arise from the
power of the Court to enforce it by the mere
circumstance of having control over the pro-
perty; and therefore, though there are no con-
flicting claims, the Court is bound to notice
the wife’s equity in directing payment of the
funds in whatever way they may have been
brought into Court.—dn re Woodward, 8 I. E.
R51. (R.)

9. A feme sole, a subject of Gt. Britain, was
decreed entitled to a sum to be realised by
selling lands. Before its realisation she mar-
ried abroad a subject of the Austrian empire,
and continued to reside with him in that em-
pire. After the money was brought into
Court, they applied that it should be paid to
their attorney on a warrant executed by them
abroad. The affidavit stated that by the laws
of the Austrian empire the money would be at
her absolute disposal. Held, that the applica-
tion should be granted.

The Court did not require the husband to
make any settlement thereout upon her, or
that a commission should issue for her sepa-
rate examination.— Hutchinson vy. Cathcart, 8 I.
E. R. 394. (E.E.)

10. When the entire of a fund in Court,
being the wife’s chose in action, is put under
settlement for the benefit of the husband and
wife and their issue; the costs of the settle-
ment, &¢c., cannot be paid out of the fund, but
must be defrayed by the husband.—Harpur v.
Ball, 81. E.R. 580. (R.)

11. When a person entitled jure mariti to
chattels real mortgages them, the wife has not
any equity to a settlement thereout as against
the mortgagee seeking a foreclosure and sale.
—Hatchell v. Eggleso, 11. C. R. 215. (C.)

12. A wife’s equity to a settlement, against
the assignee of her chose in action, is an obli-
gation attaching, not on the property, but on
the right to receive it. Therefore a plenary
suit is not necessary to enforce it. The right
may be insisted upon on a motion to dis-
tribute the fund.

The amount to be settled is discretionary
with the Court, and depends on the particular
circumstances of each case.

Husband and wife assigned her chose in
action. A decree, pronounced in a suit to
which the assignors were not parties, declared
their rights inter se to the fund. Held, that
the wife was not bound by the decree, and
Alimony.

might still insist on her equity to a settle-
ment.—Marshall v. Gibbings, 4 I. C. R. 276.
(R.)

1. Bequest of the dividends of a fund “to
J., and 8. his wife, and the survivor of them,
for the term of their natural lives; after their
decease to pay the fund, and all interest due
thereon to the children of the said J., and S.
his wife, share and share alike. J. became
insolvent. Held, that J. and S. had been,
prior to his insolvency, entitled to the divi-
dends by entireties; that the wife was not en-
titled to any equity to a settlement, but only
to have the fund kept in Court to secure her
title to the dividends by survivorship. The
dividends in the meantime were directed to
be paid to the insolvent’s assignee.—Jrwiz v.
Baker, 71. Jur. 305. (R.)

2. Husband and wife, domiciled in Scot-
land, where a wife has no equity to a settle-
ment, the Court ordered a fund, the property
of the wife, to be transferred to them, or
their attorney thereto lawfully authorised,
without requiring the wife to appear to waive
her equity.—IJn re Molyneux, 5 I. C. R. 346.
(R.)

 

V. 3. d. Alimony.
[See 30 & 81 Vic., v. 11.]

3. A legacy was bequeathed to a lady be-
fore her judicial separation from her husband.
Held, that in the absence of an affidavit show-
ing that the existence of this legacy was known
to the Judge of the Divorce Court, when con-
sidering the amount of the wife’s alimony, the
husband had no claim thereto.

That the principal should not be paid to
the wife, but should be settled on her and
the children of the marriage— Re Wetherall’s
Trusts, 91. Jur. N.S. 25. (R.)

V. 3. e. Separate Maintenance.

 

V. 3. £. Wife’s Paraphernalia.

4. G. bequeathed to F., his wife, * all such
of his books, plate, and jewels as she might
select, or the whole if she chose,” to hold for
life; and bequeathed all the residue of his
personal estate to B. absolutely. B., by his
settlement, granted to A., his intended wife, a
jointure in satisfaction and bar of all dower or
thirds which she could claim out of his real
or personal estate. F. selected a few of the
jewels. B. after his marriage gave the residue
to A. B.died. <A. survived. Held, that A.
took as paraphernalia the jewels given to her,
and that she was not barred of her right to
them by the provision in the settlement mak-
ing her jointure a bar of dower and thirds—
Berry v. B., 61. C.R.497; 31. Jur.N. 8.98. (C.)

*

 

V. 3. g. Wife's Pin-money.
5. When the husband and wife are living
together, and the case is not one of contempt,
it is not the course to settle any part on the wife

[HUSBAND AND WIFE.]

 

389

Pin-money.

to her separate use by way of pin-money,
unless the property be a large one. Sucha
provision refused where the sum to be settled
was under £1400.—Harpur y. Ball, 81. E. R.
404. (C.)

6. The rule of Court, that only one year’s
arrear of pin-money can be recovered against
the husband, is founded on the presumption
that any greater arrear has been applied to the
wife’s maintenance, or to the general purposes
of the family, with the wife’s assent. This
rule does not apply when the pin-money has
been assigned for valuable consideration:to a
third party, or when there is a receiver over
it.—Foss v. F., 10 1. Jur. N.S. 301. (C.A.)

 

IDIOTCY.
See Lunacy.

 

ILLEGAL TRANSACTIONS

See Account, I—Acreement, IV—Banx-
ruptcy, I1]—Dzreps, V—Gamsriine—
Pusuic Poricy.

 

ILLEGITIMACY.
See BAsTaRp.

 

ILLUSORY APPOINTMENTS.
See Power, I—Arporntments, Intusory.

 

IMMORAL PUBLICATIONS.
See Copyricut, II.

 

IMPEACHING DECREE.
See Practice, DecrEx.

 

IMPERTINENCE.

— Reference as to. See Practicn, ANswrr—
Practice, Master, RerERENCE—PLEAD-
Inc, ANSWER—PLEADING, BILL.

 

IMPLICATION.
See Covenant, V—Estatr, X—Trrms, II.

 

IMPLIED COVENANT.
See Covenant, V.

 

IMPLIED TRUSTS.
See Trusts, IV.

 

IMPOSSIBILITIES.
See Conpition, IV.
390

IMPROPRIATOR.
See Trtugs, VII.

 

IMPROVEMENTS.
See ACCRETION. *

 

INADEQUACY OF CONSIDERATION.
See CONSIDERATION, II.

 

INCLOSURE.
See Common.

 

INCREASE.
See ACCRETION—INTEREST, PECUNIARY.

 

INCUMBERED ESTATES ACT AND
COURT.

See Praticz, INcUMBERED Estates Court.

[Acts to facilitate the Sale and Transfer of
Estates in Ireland—11 &12 Vic.,c 48312 & 13
Vic., c.77. Amending Acts 16&17 Vic., c. 64;
19 & 20Vic., c.67. As to Appeals, 19 & 20 Vic.
c.92. Landed Estates Act, 21 & 22, Vic.,c. 72.
—( See 23 & 24 Vic., c. 82.)]

1. The decree in a suit by B., a puisne
mortgagee, directed that he should redeem
A., a prior mortgagee, who had the title-deeds,
within six months, or in default that the bill
should be dismissed, with costs against A.;
that the defendants who ought to do'so should
pay B. the sum found due to her, and the
sum directed to be paid by her to A., provided
she should have paid same; and in default
thereof a sale, to pay B. and the otherreported
creditors in their priority, and the sum which
she should pay to A. A. was not paid off, and
after the six months had elapsed, and the suit
stood dismissed with costs as against him, he
presented a petition for a sale under the I. E.
Act. Held, that as A. had possession of the
title-deeds, and as the Court had no jurisdic-

tion to order him to lodge the deeds, no sale
could be had under the decree, and therefore
there was no pending suit within the 67th sec.
of the Act.

That the Court had no authority to stay
B.’s suit.

Form of decree and practice in Ireland ina
suit by a puisne creditor, for redemption and
sale.

Form of order on petition of a first incum-
brance under the Act.—Ex parte Hutton, 11
I.E. R. 160. (R.)

2. The Court is not bound to make an order
for sale under the I. E. Act, if it would not
decree a sale ina plenary suit.

When by a deed between father and son,

for large consideration from the son, his ob-.

 

[INCUMBERED ESTATES COURT.]

lands of A. and B. were conveyed in trust to
sell A. in the first instance to pay off incum-
brances and debts of the father; and as to B.
subject to so much of the debts and incum-
brances as should remain unpaid by the sale
of A., in trust to raise a sum to pay the
charges and incumbrances, and subject thereto
to the father for life, remainder to the son in
fee, the Court refused to make an order for
the sale of B. on the father’s petition, a part
of A. remaining unsold.—Exz parte Kennedy, 11
I. E. R. 171. (R.)

3. Form of order for the sale of lands under
the I. E. Act, at the petition of an owner te-
nant for life, subject to incumbrances, remain-
der to his first and other sons in tail, remainder
to himself in fee, there being no issue, and no-
tice having been served on the surviving trus-
tee to preserve, &¢.—Ex parte Lord Blayney, 11
I. E. BR. 183. (R.)

4. Where an order for a sale of lands has
been made by the I. E. Court, and a certificate
thereof has been transferred to the Court of
Chancery, the latter is bound by the 12 & 13
Vic., c. 77, s. £2,'to stay all suits and proceed-
ings in which a decree for sale of the same
lands has been pronounced. Where no such
decree has been made, that section leaves it
at the discretion of the Court whether or not
to stay any other suits and proceedings, even
although their object should be to procure a
decree for a sale of the same lands.— Bernard
v. Bond, 1 I. C. R. 198; 2 I. Jur. 311. (C.)—
(Followed, Moneypenny v. Gibbings, 1 I. C. R.
201. (C.)] :

5. The construction of the 12 & 13 Vic., uv.
77, 3. 42, adhered to, as decided in Bernard v.
Bond, 1 I. C. R. 198, in reference to staying
proceedings in this Court, when lands, the
subject of litigation here, have been ordered
by the I. E. Court to be sold.—Moneypenny v.
Cibbings, 8I.C.R. 201. (C.)

6. A petition for the sale of lands had been
presented in the I. E. Court, but no order had
been made thereon. Without the consent of
the Commissioners of that Court, a petition
under the Court of Ch. Reg. Act was pre-
sented in this Court on foot of a mortgage of
the same lands, praying a foreclosure, sale,
and account, and that in the meantime a
receiver should be appointed. The latter
petition charged that the former petition had
been presented by the mortgagor in order
that he might continue in receipt of the rents
until a sale took place, and that in conse-
quence of the arrear of business in the I. E.
Court it was not probable that an order for a
sale would be made for a long time. Although
at the Bar the mortgagees offered to waive all
relief under their petition except the appoint-
ment of a receiver, this Court refused to make
any order upon their petition, and compelled
them to pay to the respondent (the mortgagor)
the costs of bringing him before the Court.—
Murphy v. Sealy, 11. C. R. 228; 31. Jur. 162.

ject being to preserve B. in the family, the | (C.)
[INDEMNITY.]

1. A receiver may be appointed or extended
under the Sheriffs Act, though an order for
sale has been made by the I. E. Court.—Cor-
ban v. Lord Mountcashel, 11. C. R. 234. (R.)

2. In an application to set aside the sale in
consequence of a deficiency in the amount of
land, as compared with the quantity described
in the rental, the fact of the deficit must be
distinctly proved.

The sale will not be set aside because te-
nants are described as holding from year to
year, and in joint tenancy, when they actually
hold in severalty under leases, if they have
been regularly served with the notices under
the 13th G. O.

In such a case the tenant’s lease is evicted,
and both he and the purchaser are bound by
the description in the conveyance.

. When the tenants suffer any damage owing
to the operation of the conveyance, the Court,
on their application, will award compensation ;
for they then deal, not with the lands, but
with the money in Court.

. Quere—If the Court, after the execution of
the conveyance, has power to set aside the
Parliamentary title so conferred?

When a purchaser alleges that the lands
granted are deficient in quantity, or erro-
neously described in the rental, any applica-
tion grounded upon these facts should be
made in the first instance in Chamber, not to
the Full Court.

The Court will admit a supplemenlal affi-
davit, if the ends of justice would be frustrated
without it.

When such an affidavit was sworn only on
the evening preceding the motion, the Court
offered to let the motion stand over, in order
that the affidavit might be used upon the hear-
ing, if its reception was then objected to.—Jn
re Bodkin’s Estate, 31. Jur. 101. (1.E.C.)

 

INCUMBRANCES.

See Bankruptcy, X —Liren-——Mortesace—
Preapine, Parties—PRACTICE, Costs.

 

INCUMBRANCERS.

— Proof by. Sce Banxrurtcy, XIII.

— Costs of. See Pracricr, Costs.

— Receiver against. See Practice, RecEiver.

— As to what is an Incumbrance. See Estate,
VIlI—Cuarce—Pueapine Partiss.

 

INDEMNITY.

See Coprricut, 1X — Security — VENDOR
AND PourcHaseR, V—PRINCIPAL AND
Surety.

3. A., seized in fee of premises subject to an
entire quit-rent, by deed solda portion of them,
then in possession of B., who was A.’s attorney
and tenant, to B., his heirs and assigns. The
deed recited that A. was seized of other pre-
mises, which with those conveyed were subject
to the quit-rent; and that B. had agreed to
indemnify A., bis heirs and assigns, and

 

391

the other premises, the estate of A., from
payment of the quit-rent; B. for himself,
his heirs, executors, &c. covenanted with
A., his heirs and assigns, that B., his heirs
and assigns, would at all times thereafter pay
the quit-rent of all the premises, as well of
such as were thereby sold to him, as of the
others, the estate of A.; and would at all
times thereafter save harmless and indemnify
A., his heirs and assigns, from the payment
thereof. Ina suit by an assignee of the un-
sold lands against a volunteer under B—Held,
that the sold lands were specifically bound to
indemnify the unsold lands against the pay-
ment of the quit-rent.

The proper mode of indemnifying against
the payment of a quit-rent, is by a grant of
the rentcharge in fee, equal in amount to the
quit-rent, and issuing out of lands held in fee.
—Haiton v. Waddy, 2 Jon. 541, (E.E.)

4. The plaintiff having an interest in an an-
nuity, subject to which the defendant’s estate
was purchased from the grantor, joined in a
suit in which six years’ arrears only were de-
creed. The grantor having covenanted to pay
the annuity, the plaintiff took out administra-
tion to him; was sued at law; and had judg-
ment against her for the amount due beyond
six years. She then filed the bill to recover
that amount. Held, that the suit could only
be sustained for indemnity against actual
damage, and therefore not beyond the amount
to which the grantor left assets; and Quere,
whether the suit being a contrivance could,
even on proof of assets, be sustained ?— Byrne
v. Dignan, 9 1. E. R. 295. (C.)—[See 3 Jon. &
L. 116. (C.)]

5. A testator, B., to whom the interest in a
lease was assigned, expressly covenanted with
his assignors, the Commissioners of Public
Works, to pay the rent reserved to the Com-
missioners; and to indemnify them from the
payment thereof. Held, that the executor was
entitled to an indemnity from the parties
entitled to the assets, in respect of his liability
to the rent, although the Commissioners might
possibly be entitled to insist that they were
not personally liable, having contracted to pay
it as “Commissioners and Overseers of Public
Works in Ireland.”

That the Commissioners had a right under
the covenant to require B.’s executor to pay
the rent, although they might never be sued;
and that the Commissioners, if sued, were not
bound to set up technical objections, which
might or might not be sustainable, to defeat a
fair claim, in order to exonerate B.’s executors
from the covenant.—Trevor v. Thomas, 13 I.
E.R. 222. (R.)

6. A. was seized in fee of the S. estate.
The D. estate was settled to such uses as A.
and B. jointly should appoint; in default of
appointment to A. for life, remainder to B. in
fee. A. subsequently charged his life estate
in D. with an annuity of £1000 in favour of
B. There were incumbrances charged upon
S. A. borrowed £20,000 upon a mortgage of
D. and §., to which B. and those incumbran-
392

cers were parties. Byit A. and B. conveyed all
the lands to the mortgagee. The proviso for
redemption was, that, upon repayment, the
lands should be reconveyed to A. in fee. It
was witnessed by the deed that B. and the in-
cumbrancers gave priority to the mortgage
over their respective charges. A subse-
quently borrowed £17,000, upon which occa-
sion, by a mortgage of all the lands for a sum
of £37,000, to which B. and the incumbran-
cers were parties, A. and B. conveyed all the
lands to the mortgagee, subject to a proviso
for redemption, that upon repayment the
lands should be reconveyed to A. and B. in
fee. It was witnessed that B. and the other
incumbrancers agreed to give priority to the
mortgage over their respective charges.

Both estates having been sold in the I. E.
Court, the mortgage was paid out of the
joint produce. B. made an affidavit stating
that he had been induced by A. to join in
the mortgage upon the representation that
the money would be applied in payment of
A.’s (his father’s) debts, and that his (B.’s)
interest in D. would only stand as a collateral
security ; that-he had received only a nomi-
nal consideration, and was in no way privy to
any arrangement with the mortgagees. The
proceeds of the sale having proved insuffi-
cient to pay all the incumbrances, the I. E.
Court decided that the mortgage should be
deemed to have been paid out of the produce
of the sale of D. before recourse was had to
the proceeds of 8. Held, reversing that deci-
sion, that B. was a surety only as between
himself and A., and that the incumbrancers on
8. were not entitled to indemnity out of B.’s
interest in D.—In re Keily, 61. C. R. 394; 21.
Jur. N. 8. 453. (C.A.)

1. A purchase deed contained a covenant
for quiet enjoyment, free from quit-rent and
crown-rent. A contemporaneous deed of
indemnity conveyed lands to a trustee and
his heirs, upon trust to permit the vendors and
their heirs to take the rents, &c., until the
purchaser and his heirs, or any person deriv-
ing under him, should be molested, disturbed,
or damnified, by reason of judgments and in-
cumbrances, or any of them, or any judgment
or incumbrance affecting the purchased lands,
or any of them; or until some suit at Law or
in Equity should be commenced or proceeded
on against the purchaser, his heirs or assigns,
or the purchased lands and premises, or any
part thereof, for the recovery of or on account
of the said or any other incumbrance or in-
cumbrances ; and, immediately after any such
disturbance, molestation, or injury, &c., out
of the rents and profits of the indemnity lands,
by sale, demise, or mortgage of a competent
part thereof, to raise and levy from time to
time such sums as might be sufficient to pay
off and discharge the said and all other incum-
brances affecting, or that might affect, the
said lands. In 1827, quit-rent and crown-
rent were claimed, and paid out of the pur-
chased lands. In 1828, the indemnity lands
were mortgaged by persons claiming under
the vendors. In 1839, a report, finding that
there were no incumbrances, except those

 

[INDEMNITY.—INFANT.]

named in the report on the indemnity lands,
was made; and confirmed by a decree in a suit
in which the sums then paid for quit-rent and
crown-rent might have been, but were not,
claimed. In 1858, an order permitted the
owner of the purchased lands to go before the
Master, and file a charge in respect of his
demand for quit-rent and crown-rent, accrued
since the date of the report and decree. Held,
that the claimant was not precluded by the
finding in the report and decree from proving
his demand.

That the demand was not barred by the
Statute of Limitations.

That the trust in the indemnity deed to
indemnify the purchaser was not void for
remoteness.—Massy v. O'Dell, 10 I. C. R. 22.

(R.)

 

INDICTMENT.
See Crrminat Matters.

2. Semble—When, under a statute, an affi-
davit in a petition matter, required by the
Act, may be sworn before the petition is filed,
an indictment for perjury in making it can be
sustained.—Clendinning v. O'Malley, 2 Dr. &
War. 210; 1 Con. & L. 363. (C.)

 

INDORSEMENT.
See Brnyts oF EXcuance.

 

INFANT.

— Jurisdiction respecting. See JURISDICTION.

— Answer of. See PLeapinc, ANSWER.

— Made a Party. See Prrapine, Parris.

— Coming of Age: Abatement of Suit by.’ See
Practicr, ABATEMENT, AND REvivor.

— Costs respecting. See Practicr, Costs.

— Reference, whether Suit is beneficial to. See
Practice, Master, REFERENCE.

— Receiver over Infant's Estate. See Prac-

: TICE, RECEIVER.

— Lessee.’ See Statute, II.

— Trustee. See Sraruts, II.

— Administration during Infancy. See Av-

MINISTRATION, IV.

[See GuarpIAN anp Warp—HEIrs,
TiI—Parent anp Cuitp—Prac-
TICE, PRocHEIN AM1— STATUTE,
v] SETTLEMENT ON MarriaGE,

 

I. JURISDICTION OVER AND PROTECTION OF.

1. Generally.

2. Wards of Court generally.

3. His Estate—Its Protection and In-
vestment.

4. Mlaintenance, Education, and Ad-
vancement.

 

II. His Powers, Liapivitirs, anp Disa-
BILITIES.
1. Generally—Plea of Infancy.
2. When bound by acts done during In-
Janey.
Jurisdiction over.

3. When Parol may demur.
4, Suits by or against—other incidents.
5. When Infancy excuses other persons,

 

TI. Errect oF ATTAINING FULL AGE.
IV. Invrant Truster, &c.
V. INFANT EN VENTRE SA MERE.

 

I. JURISDICTION OVER AND PROTECTION OF
INFANT.

1. Generally.

2. Wards of Court generally.

3. Infant’s Estate: its Protection and In-
vestment.

4, His Maintenance, Education, and Ad-
vancement.

[See 58 G. 3, c. 81; 11 G. 4, © 1 W. 4, c. 65;
5&6W.4,c. 17; 2&8 Vic, c. 54; 3&4 Vic.,
c. 90; 4&5 Vic. ¢. 56;5 & 6 Vic, c. 28; 9 &
10 Vic., c. 24; 14 & 15 Vic, ¢. 100; 16 & 17
Vic., v.70; 18 & 19 Vic, c. 13; 18 & 19 Vic., c.
43.]

I. 1. Jurisdiction over and Protection of Infants
generally.

1. In a foreclosure suit, a day having been
given by the decree, to the infant defendant,
the heir of the mortgagor, to show cause
against it—Held, that the Court had juris-
diction to direct an immediate conveyance
by the infant, under 1 W. 4, c. 47, s. 11.—-
Flood v. Sutton, Flan. & K. 179; 3 I. E.R.
340. (R.)

2. When a minor defendant cannot write,
the Court will direct that he be assisted in
executing the conveyance under the 1 W. 4, c.
47, by a Commissioner for taking Affidavits.—
Henry v. Rankin, 4 1. E. R. 681. (E.E.)

3. If an infant have conflicting titles under
a settlement and under a will, he may be put
to his election at once, since the Court will
elect for him.—Morrison v. Bell, 5 I. E. R.
354. (R.)

4. When an infant defendant is of such
tender years that she cannot write, the Court
will order her execution of the purchase-deed,
pursuant to the 1 W. 4, c. 47, to be attested by
a Commissioner of the Court for taking Affi-
davits.— Archbold v. Rice, 5 I. E. R. 33. (E.E.)

5. On petition in the matter of a minor—
Held, that the Court has not jurisdiction to
enforce an agreement by which the minor’s
solicitor bound himself to give a lien on the
costs which should become due to him as the
minor’s solicitor ; the jurisdiction in the mat-
ter of a minor existing for the sole end of
protecting the person and property of the
minor; and it being a matter of indifference,
so far as the minor was concerned, how the
money received by his solicitor for costs
should be afterwards applied. — Lx parte
Leech, 51. E. R. 371. (R.)

6. A minor ordered to execute the convey-

LINFANT.]

 

Protection of. 393

ance to the purchaser, refused to do so, at the
instigation of his mother. The Court granted
an attachment against the minor for refusing
to execute the deed, and against her mother
for interfering to prevent her executing it.—
M‘Cartney v. Simonton, 5 1. E. R. 594. (E.E.)

7. Form of order upon an application for
an infant mortgagee to convey under the 1 W.
4, c. 60, s. 6.—Jn re Halliday, Dr. Rep. temp.
Sugden, 3. (C.)

8. The heir-at-law (the father) of a deceased
minor will be allowed to avail himself of an
order for re-hearing made upon the minor’s
petition, even though the heir-at-law had
been a party to the suit from its institution,
and affected with notice of all the proceed-
ings, and though the minor claimed only by
purchase from him.— Cleary v. C., 1 I. Jur. 79.
(E.E.)

9. The Court has not power under the 28
G. 3, cv. 35, to direct the Master to execute a
conveyance in the name of an infant resident
out of the jurisdiction.

An application to the Court for that pur-
pose, under the 1 W. 4, c. 47, or 1 W. 4, c. 60,
must be made by petition, unless the minor is
ordered at the hearing of the cause to convey.
MW Geehan v. Rankin, 12 I. E. R. 182. (R.)

10. When a minor has not been served with
subpena, the Court will not direct the clerk
in Court to answer.—Kirwan v. Fitzgerald, 2
I. Jur. 99. (R.)

11. Upon a lease for lives with covenant for
perpetual renewal, more than one year’s rent
being due, and the landlord being a minor
and ward of this Court, the Master directed
an ejectment for non-payment of rent to be
brought against the plaintiff (the tenant), and
mortgagees of his interest. Judgment was
by consent obtained, and an habere executed
on the 28th May 1847. The lessors of the
plaintiff in ejectment on the same day de-
mised the lands to B. (a relative of the plain-
tiff and creditor as against his estate) for six
months, pending redemption, during which
time the plaintiff was in fact allowed to
occupy the lands. The mortgagee being en-
titled to three months’ further time to redeem,
the forfeiture could not have become com-
plete until the 28th Feb. 1848, during which
period the last c. g. vie named in the lease
died. Upon the 28th Feb. 1848, at the in-
stance of the mortgagees, the Master made
an order directing that bills payable three
months after date, drawn by plaintiff, and
accepted by B., should be received “on the
part of the minors as payment of the rent
for which the habere had been executed, and
for a further half-year’s rent; if bills not
paid, the forfeiture to be complete.”

To this order, when made, the minor’s soli-
citor and testamentary guardian objected;
but took the bills; and, on non-payment, had
them protested. The minor, who was nearly
of age, approved the order when he heard of
it. During the currency of the bills, the
plaintiff remained in undisturbed possession, -

50
394 Ward of Court.

which he refused to deliver up on non-pay-
ment of the bills. To an ejectment on the
title, directed by the Master, against plaintiff
and the mortgagees, the plaintiff alone took
defence. A verdict was obtained against him.
He moved to set it aside; but failed. Judg-
ment was then recovered. He filed a bill
offering to lodge in Court the rent and costs ;
and praying a renewal, redemption, and an
injunction to restrain the landlord from
enforcing the judgment. To this suit the
mortgagees were not parties. Held, that the
arrangement of 1848 was binding; and that
the plaintiff would have been entitled to
relief if the bills had been paid when due.
That, the bills remaining unpaid, the Court
had not any power to decree redemption ;
and that the bill must be dismissed with costs.
Mulloy v. Goff, 1 J. C.R. 27; 31. Jur. 25. (C.)

1. Order made to appoint a next friend to
a minor plaintiff in lien of a next friend
deceased.— Nolan vy. N., 21. C. R. 557. (R.)

2. A., before marrying B., verbally con-
tracted to let their children, if any, be reared
Protestants. During B.’s life, their children
were baptised and reared Protestants. When
she was dying, A. renewed his promise to her.

After herdeath, A.’s application to the Court, |”

for the guardianship of the surviving child,
was refused because of his unfitness through
intemperance, immorality, and other causes.
A., by will, appointed his mother, a Roman
Catholic, and his brother, a R. C. clergyman,
guardians of his child. The Master, ignorant
of A.’s death and will, by his report appointed
Protestant guardians. Held, that the report
could not be confirmed; and that, pending a
reference to the Master to review his report,
the child’s custody should not be changed to
the testamentary guardians.—Jn re Browne a
minor, 41. Jur. 99. (R.)

3. A fund ordered to be paid to the sur-
viving plaintiffs, in an injunction suit, abated
and dismissed by the 81st Order of 1843.—
Thomas v. T., 31. C. R. 399. (R.)

 

I. 2. Wards of Court generally.

4. Examination of prochein amy of minor
plaintiff as a witness for defendant.—Af Neice
v. Agnew, 21. E.R. 445. (R.)

5. Form of proposals for a settlement upon
the marriage of an infant, a ward of Court.—
In re Healy, 1 Con. & L. 393. (C.)

G6. When a male ward of Court marries
under age, and the marriage is recognised by
the Court as valid, the Court cannot compel
him to settle his estate, so as to exclude his
wife from all benefit in it.—Jn re Murray, 3
Dr. & War. 183; 2 Con. & L. 136; 51. E. R.
266. (C.)

7. When testamentary guardians have been
appointed, the Court, though it cannot upon
petition order their removal against their
» consent, has full jurisdiction upon petition in

[INFANT.]

 

Infant's Estate.

such cases, and without a bill having been
filed, to order the children to be made wards
of Court, with suitable directions for their
maintenance and education.

Form of the order.—In re M‘Cullochs, 6 I.
E. R. 393; Dr. Rep. temp. Sugden, 276. (C.)

8. A female minor having married without
the Court’s assent, she and her husband ap-
plied for a transfer to him of a fund to which
she was entitled; he undertaking to make a
proper settlement. The parties being poor,
the Court dispensed with the reference. Upon
production of a draft settlement, which the
Court approved of, and which the husband
undertook to execute, the order was made.—
Baker v. Herbert ; in re Bakers, 8 1. E. R. 108.

(R)

 

I. 3. Infant’s Estate: its Protection and
Investment.

9. An order, that a minor’s tenants should
have liberty to execute a surrender, was
granted upon the receiver’s motion, made by
the Master’s direction; it being plainly for
the minor’s benefit that a surrender should be
accepted ; but his guardian’s concurrence was
required. Davis v. Cotter, 8. & Sc. 685. (R.)

10. The Master had jurisdiction under the
185th G. R. of 1834, to direct proceedings to
be taken against a party, who having been let
into possession by the father of a minor, re-
fused to give up possession after his death.—
In re Hunt, Flan & K. 276. (R.)

11. A., being about eighteen years old,
entered a convent upon an agreement by the
nuns that she should not be professed under
age, or without her friends being pre-advised
of it. Whether A. had entered as a postulant
or pupil was controverted. A.,in the absence
of all her friends, was professed under age.
There was no evidence that notice had been
given to any of her friends, save that the de-
fendants in their answer alleged that they
communicated the fact to A.’s sister. When
A. arrived at full age she assigned nearly all
her property to the nuns for the convent’s
benefit. Previously, she had been excluded
from the society of her friends; and the deed
of assignment was prepared by the profes-
sional agent of the convent ; no friend of A.
was present. Sometime afterwards A. quitted
the convent and filed a bill to set aside the
assignment, for a reconveyance of her real
estate, and for an account. Held, that these
transactions fell within the principle of the
cases of guardian and ward, which decide that
dealings between them ought not to stand.—
Whytev. Meade, 21. E. R. 420. (E.E.)

12. The tenant of a lease for lives renewable
upon payment of fines and a penal rent, being
an infant ; and there having been no renewal
for a period of fifty years—ZJZeld, that the
Court would not, upon petition, direct a re-
ference to acertain what was due for rent and
fines, but would require a suit to be instituted.
Protection.

In re Colthurst, 2 Con. & L. 35; 8 Dr. & War.
35; 51. E.R. 822. (C.)

1. When lands are decreed to be sold ina
mortgage suit, the infant heir-at-law of the
mortgagor is not a trustee within the 8th or
18th secs. of the 11 G.4 and 1 W. 4, c. 60.

Semble—The Court has jurisdiction under
11 G.4 and1W. 4, c. 47, s. 11, to order such
infant heir to execute a conveyance.

He is not within the 28 G. 3,c. 35. Nor is
he a necessary party to the conveyance to the
purchaser.—Groddard v. Macauley, 6 I. E. R.
221. (R.)

2. The Court will make an order under the
1 W. 4, c. 47, s. 11, that the infant shall
execute the deed of conveyance to the pur-
chaser.—Clinton v. Bernard, 6 I. E. R. 355.
(C.)

3. The infant tenant in tail of lands de-
creed to be sold for an equitable charge is a
trustee under the 8th and 18th sections of the
1 W. 4, c. 60.—Peyton v. M‘Dermott, 6 I. E. R.
220. (R.)

4. Aninfant ward of Court was possessed of
£400 in money, and some other personal pro-
perty to a small amount, and seized of some
freeholds. On proposal for marriage made to
the Court—Held, that the settlement should
be as follows, viz.—the freeholds to be settled
upon the wife for life, for her separate use,
without power of anticipation; then amongst
her children as she should appoint ; the estates
of the children to be limited to vest at twenty-
one for the sons, and at that age or marriage,
for the daughters; if no child, the estates to
go, if the wife survived, to her heirs, executors,
and assigns; if she did not survive, then to go
as she should appoint by will only; in default
of appointment, as to the freeholds to her
heirs, and as to the personalty to the next-of-
kin.

Held, that a jointure of £60 should be pro-
vided for her in consideration of her giving
up all interest in the £400.—In re Healy, 1
Con. & L. 393. (C.)

5. The personal estate of an infant seized
in fee of real estate was applied in payment
of charges affecting his real estate, the infant
having died under twenty-one. Held, that the
next-of-kin were entitled to those charges as
part of his personal estate.— Dowling v. Belton,
Flan. & K. 462. (R.)

6. When a male ward of Court marries
under age, and the marriage is recognised by
the Court as wu valid one, the Court has no
power so compel him to settle his estate in
such a way as to exclude the wife from all
benefit of it—Jn re Murray, 3 Dr. & War.
183; 2 Con & L. 136; 51. E. R. 266. (C.)

7. When the heir-at-law was an infant, the
Court, in a suit by a simple contract creditor of
the ancestor, to protect the infant’s interests,
abstained from giving the usual directions for
a sale, until the cause came back for further

[INFANT'S ESTATE.]

 

Investment, ec. 395
directions. Such is not the usual or regular
course of the Court.—Lynch v. Joyce, 3 Dr. &
War. 349. (C.)

8. A female minor, having married without
the assent of the Court, applied with her hus-
band, that the funds to which she was entitled
should be transferred to him, he undertaking
to make a proper settlement. The parties
being poor, the Court dispensed with the re-
ference; and upon the production of a draft
settlement which the Court approved of, and
the husband undertaking to execute it, made
the order.—In re Bakers, 8 I. E. R. 108. (R.)

9. In a cause in which a minor is concerned,
it is irregular and improper for the parties or
their solicitors to enter into any consent, with-
out disclosing on its face the fact, that one
of the parties is a minor. A side-bar rule
entered on such a consent, where that fact
does not appear—Held, irregular.— Gatchell v.
G., 81. E. R. 391. (E.E.)

10. An order was obtained on petition
against a minor, not a party to the cause, to
execute the conveyance. The minor refuesd
to obey the order. Held, necessary to present
a further petition to obtain an order that an
attachment should issue against the minor,
and that a person appointed by the Court
should execute in his name.

Semble—The 4 & 5 W. 4, c. 78, does not
apply to minors.—Moore v. Grogan, 9 I. E. R.
472. (R.)

11. For thirteen years the defendant, brother
of the plaintiffs, maintained them, and re-
ceived the rents of their freehold. The rents
were very small. The plaintiffs were refused
an account of the rents during that time.—
Dooner v. D., 11. Sur. 209. (C.)

12. A motion for an abatement of rent in a
minor matter is not to be made to the Court.—
Alston vy. Alcock, 11. Jur. 212. (R.)

13. Lands were subject by settlement to £800
secured by a term of 100 years, and by a sub-
sequent will to £4200 secured by another term
of 99 years, as portions for younger children,
of whom the plaintiff and A. were two. By
the will, the lands were devised subject to the
two terms, after prior limitations, to A. for
life, remainder to his first and other sons in
tail. A. being in possession, a bill was filed
to raise the two sums, to which a minor tenant
in tail born afterwards was made a party by
supplemental bill. The Master reported in-
terest accrued on the two charges during the
minority of A. The final decree confirmed
the report, and declared the sums reported
charges on the terms; and, in default of pay-
ment thereof, directed the Master to sell the
several premises comprised in the respective
terms, for payment of the respective demands
decreed charges thereon. The lands were set
up and sold for the residue of the two terms.
Held, on exceptions to the Master’s report of
good title, that as the minor tenant in tail was
a party in the cause, the decree was not erro-
396

Protection.

neous, though it directed a sale for the pay-
ment of interest accrued during the possession
of A.; nor because it omitted to set-off the
interest which ought to have been paid by A.
against his share of thg portion, and a sum
which was reported to"A. charged on other
lands directed to be sold by the decree. But
the Court directed the Master to allocate to
the minor, out of the sum so reported to A.,
the amount of interest which he was liable to
pay.

That as the minor’s estate was puisne to the
terms, the omission to give him a day to show
cause would not affect the purchaser.

That although the two charges affected the
terms separately, and were not distinguished
in the report or decree, as it was clearly for
the benefit of the minor that the terms should
be sold together, the title was not objection-

able on that ground.—Ldgeworth v. E., 12 I.
E.R. 81. (R.)

1. The Court, upon the application of the
plaintiff, appointed a receiver over the lands
of a minor defendant before his appearance or
answer, upon an affidavit that the rents could
not be enforced from the under-tenants of the
minor (who was not a ward in Chancery), and
that his interest was in danger of being evicted,
the head landlord having served ejectments
for the non-payment of the head rent.— White-
law v. Sandys, 12 I. E. R. 393. (E.E.)

2. When an infant is entitled to a vested
legacy, payment thereof, during his minority,
by the executor, to the testamentary guardian,
is valid, inasmuch as the statute for taking
away the Court of wards and liveries, 14 & 15
Car. 2, c. 19 (Ir.), 12 Car. 2, ¢. 24 (Eng.),
enables the guardian to give a good acquit-
tance.

Such a payment is valid, although the period
directed by the testator for payment of the
vested legacy to the infant is the attainment
of age or marriage.

A bequeathed to his eight younger children
all his property, share and’ share alike, on
their attaining their respective ages, or mar-
riage with consent of their guardian; and di-
rected that the interest arising from their
respective shares should be applied in the
meantime to their maintenance and education;
and appointed a guardian and an executor.
Held, that a payment, during the minority of
the children, of a part of the corpus ot the
personal estate of A., by the executor, to the
guardian, was a valid payment.—If* Creight v.
MC, 137. E.R. 314; 21. Jur.17. (C.)

3. When a petition on behalf of an infant is
presented by a solicitor who is a stranger to
the infant, even although the Master should
find that the petition is a proper one, and for
the benefit of the infant, the Court will not
award out of the infant’s estate to the peti-
tioner any costs except costs out of pocket.

When such a petition was presented by a
solicitor praying investigation into the con-
duct of a testamentary guardian with respect
to the property of an infant, and the Court
referred the matter of the petition to the
Master, who found that the petition was a

[INFANT’S ESTATE.]

 

Investment. &c.

proper one, and for the benefit of the infant ;
although the Court was not satisfied with the
conduct of the guardian, and the circum-
stances of the case were such as to warrant
suspicion, yet as the petitioner had not pre-
viously ascertained that none of the relatives
or friends of the infant would present such a
petition, the Court refused to grant out of the
minor’s estate even costs out of pocket to the
petitioner.

The Lord Chancellor of Ireland has power
under the 4 & 5 W. 4, v. 78, s. 7, to appoint a
receiver over the estate of a minor, upon
petition, and without the filing of a bill for
that purpose.

When there is a testamentary guardian, the
14 & 15 Car. 2, ¢. 19, Zr, authorises him to
manage the estate of the infant, and the Court
will not interfere with or remove him unless
it be absolutely necessary so to do. Whether
the filing of a bill for this purpose would, pre-
viously to the Court of Ch. Reg. Act, have
been necessary? Quere.—In re Goode, 11.C.
R. 256; 31. Jur.50. (C.)

4. By marriage settlement, a rentcharge
and part of a legacy charged by will on
real estate were vested in the children of
the marriage, some of whom were mi-
nors, subject to an exclusive power of ap-
pointment in the parents. The minors
were defendants in a suit to carry the trusts
of the will into execution, in which the Mas-
ter found, upon the consent of the counsel
and trustee of the minors, that the legacies
and rentcharges were in equal priority, and
that the finding was in the nature of a com-
promise, and beneficial to the minors. The
report was confirmed by a final decree, and
the lands of P., among others, were decreed to
be sold to pay the several sums reported, in
the first instance subject to the rentcharge;
and if sufficient was not produced to pay the
debts and legacies, then discharged of the said
rentcharge ; and if the sum arising from such
sale should be insufficient to pay the debts,
legacies, and value of the rentcharge and costs,
the legatees and devisees of the rentcharge
should abate rateably. The lands of P. were
sold discharged ofthe rentcharge. Held, allow-
ing exceptions to the Master’s report of good
title, that the report and decree, being founded
on a consent which the Court had no jurisdic-
tion to take, were erroneous, and the title
under it was bad.

Pending an appeal from the above decision,
which was affirmed, a deed was executed by
the father of the minors, appointing the rent-
charge to a son, who was adult when the con-
sent was entered into, and was a party to it,
and the legacy to him and two of the minors,
who had since come of age. The Lord Chan-
cellor having, on the statement that the ptf.
could then show a good title, referred it back
to the Master to review his report, who found
that a good title could be made by reason of
said deed.

Semble—That the appointment having been
made on an emergency, and not b. f for the
end designed by the donor of the power, was
void.— Weir v. Chamley, 11. C. R. 295. (R.)
Protection. [INFANT’S

1. A debtor being entitled to an annuity,
found by a report in a minor matter to be
charged on the minor’s estate, the guardian
drew a cheque in his favour, which he re-
tained in his hands, and which had not been
accepted in payment of the annuity. Held,
that the cheque could not be seized by the
Sheriff under a fier? facias. The Court there-
fore refused to order the guardian to pay over
the money to the Sheriff—Ex parte Smyth, 2
1. C. BR. 558. (R.)

2. A fund had been realised out of lands,
and carried to the separate credit of a minor.
The lands were evicted for non-payment of
rent. Held, that the landlord was entitled to
the fund, on account of the arrear of rent
due to him.—M‘Kenna v. Connell, 2 I. C. R.
594. (R.)

8. When a minor is seized of an estate in
fee, or in tail in possession, the Court will
give liberty to the father or guardian of the
minor, to make leases of the lands ‘for 99
years, under the 11 G. 4 and 1 W. 4, c. 65, s.
17, if it appears to the Master that such
leases would be for the benefit of the minor’s
estate—In re Porter a minor, 5 I. Jur. 204.

(R.)

4. Where a petition is presented to make
minors wards of Court, by a party not imme-
diately interested in their welfare, and the
minors are nearly of age, it is with great re-
luctance that the Court will order a reference
to the Master.

When the property has been managed by the
mother and testamentary guardian, she will
not be called on to account, unless the Master
report specially that it is necessary she should
do so.

One of the minors would be of age in four
months, and no rule was made on the petition
respecting him. Another would be of age in
four years, and it was specially referred to the
Master to say, “‘whether it was not undesi-
rable that he should be subjected to the heavy
expense of being made a ward of Court.”

If under such order of reference the Master
report that it was not for the benefit of the
minors to have presented the petition, the
costs will have to be paid by the petitioner.—
In re Thunders minors, 5 1. Jur. 212. (R.)

5. When there is a covenant to renew, du-
ring forty years, upon nominating a new life
within six months after the fall of such life,
this does not come within the Tenantry Act;
and unless the landlord is shown to have been
in default, there is no equitabie right to re-
new. But if the value of the premises be
small, and it would appear for the benefit of
the minor to grant a renewal, the Court may,
notwithstanding, direct the Master to execute
a renewal on behalf of the minor, under the
11 G.4 andl W.4, c.65; nominating for each
life that had dropped, a life that was in being
within six months after. The principle of
calculation for renewal fines was, “one fine
due at the end of six months after the fall of

 

ESTATE.] — Investment, §c. 397
each life, and a septennial fine due at the end
of every seven years; with interest on each
from the time when it became due, at £5 per
cent.” The guardian of the minors was de-
clared entitled to the costs of appearing.—
Inre Cootes, 71. Jur. 234. (R.)

6. A. seized of large estates in Ireland, but
resident in England, died there; and by will
made B. testamentary guardian to his daugh-
ter, a minor. B. immediately applied to, and
made the minor a ward of the Court of Ch. in
England ; and got herself appointed guardian
of the person and fortune. The minor’s mo-
ther, resident in Ireland, presented a petition
to make the minor award of the Court of
Ch. in Ireland; and to appoint a receiver over
the estates. The Court granted a reference
to the Master to inquire whether B. had been
duly appointed guardian of the person and
fortune ; and if not, then to appoint a proper
person as such, with the directions usual in
minor matters. B. to have notice of all such
proceedings. Also that the Master should
have regard to the proceedings in England ;
and report whether it was for the benefit of
the minor that she should be made a ward of
the Court of Ch. in Ireland; or that the
petition should have been only for the ap-
pointment of a receiver; and reserved the
question of costs.

Quere—Can a minor who has been a ward
of the Court of Ch. in England, be also made
a ward of the Court of Ch. in Ireland ?—
In re Morgan, 71. Jur. 217. (R.)

7. M., award of Court, was tenant for lives
renewable of lands, of which F. purchased the
reversion. All the lives being dead, F., on the
29th of Oct. 1855, served a notice on the re-
ceiver in the minor matter, calling on him to
renew. On the 8th of Nov. 1855, the receiver
sent a notice to S. of his intention to lay the
matter before the Master inthe matter. The
affairs of the minor were very much involved,
and the report, that it would be for the bene-
fit of the minor to renew, was ‘not confirmed
until the 5th of Nov. 1856. On the 22nd of
Jan. 1857, a draft fee-farm grant was for-
warded to F., and was returned not approved.
On the 25th of Feb. 1857, the fines were ten-
dered, but refused. On the 2nd of July 1857,
the petition for a renewal was filed by Mi—
Held, that the right of renewal was not for-
feited.

Quere—Whether «a landlord can, without
leave of the Court, serve upon a ward of
Court a notice within the Tenantry Act, so
as to forfeit the minor’s right of renewal ?—
Mansergh v. Fitzgerald, 7 I. C. R. 159; 31. Jur.
N. 8.168. (C.)

8. The Court will not, under the Settled
Estates Act, grant a power to make such a
lease of a minor’s estate as is tantamount to
an absolute alienation of it—ZJn ve Blood’s
Estate, 31. Jur. N. 8. 336. (R.)

9. In a settlement made under the 18 & 19
Vic., c. 43, there ought not to be any limita-
tion to collaterals, or any benefit conferred
398 Maintenance.

upon the guardian of the minor whose pro-
perty is putinsettlement. The words “Court
of Chancery” in an Act of Parliament do not,
per se, refer to the Court of Chancery in Ire-
land.

Under the 18 & 19 Vic., c. 43, the Court of
Ch. in Ireland, has not jurisdiction to order a
settlement to be made of a minor’s estate.—
In re M‘Clintock, 10 I. C. R. 469; 5 I. Jur. N.
8. 209. (C.)

1. The 5 & 6 Vic., c. 118, s. 3, provides that
nothing in that Act “contained shall extend,
or be construed to extend to or affect any act
done before the passing of this Act, under the
authority of any Court,” or, &e.

The 11 G.4, and 1 W. 4, cv. 42 (private)
empowered the trustees and guardians of a
minor, ward of Court, to purchase real estate
for him out of the savings of his income. The
purchase was effected before the passing of
the 5 & 6 Vic. c. 113. Held, an act done
“under the authority” of the Court, within
its third section.—Corry y. Cremorne, 12 I. C.
R. 136. (C.)

2. By a written agreement, framed as an
accepted proposal, and dated 12th Feb. 1889,
A. gave his son B., on his marriage, a moiety
of the lands of X. B. entered into and con-
tinued in possession until his death in 1840,
when he left all his estate and interest in X.
to his daughter, C. B.’s widow entered into
occupation; but was induced by A., and D.,
B.’s brother, to give them possession in con-
sideration of money. A. and D. continued
jointly in possession until A.’s death, after
which, and until this suit, D. remained in
exclusive possession.

C. attained age in 1861; and, having un-
successfully endeavoured to get possession of
X., instituted this suit to obtain possession
from D., with an account of the rents, &c.
D. set up a title under a registered deed of
1840, whereby A., in consideration of £150,
conveyed X.to D. and E. D. claimed to be
a purchaser for value, without notice. Notice
was clearly proved. Held, that D., having
confessedly taken possession from the minor’s
guardian, could not set up atitle adverse to
the minor.—Kennefick v. K., 8 I. Jur. N. 8. 181.
(C.)

I. 4. Infant’s Maintenance, Education, and
Advancement.

3. Stock being invested in the name of P.,
an infant, the bank declined to pay the divi-
dends, for want of a sufticient receipt. P.’s
father petitioned, stating that the stock was
his own money, and had been invested by
his wife, since deceased, under a misappre-
hension; that he was in great distress, and
needed the dividends for P.’s support. P.
was not a ward of Court; no guardian had
been appointed, nor was there pending any
cause in which the order could be made. The
Court, nevertheless, ordered the governor of
the bank to pay the dividends to the father,
as P.’s natural guardian, for P.’s maintenance.
—Inre Murphy, 2 1. E. R. 24. (R.)

(INFANT.]

 

Education, &c.

4. In a foreclosure suit, the defts., some of
whom were minors, by their answer relied on
the Statute of Limitations as disentitling ptf.
to more than six years’ interest. During the
progress of the cause, there was made on con-
sent, an order, in pursuance whereof a pay-
ment was made to ptf. on account of his de-
mand. Held, that that payment, though it
would have defeated the bar set up by the
answer, if the transaction had happened be-
tween adults, ought, since minors’ interests
were concerned, to be considered as made
without prejudice to the rights, and subject to
the equities of the parties in the cause; and
should not, therefore, be permitted to defeat
the defence relied upon in the answer.—
Thwaites vy. M‘Donough, 2 I. E. R. 97. (E.E.)

5. Upon a reference to inquire as to the
ages and fortunes, &c., of three infants, and to
appoint guardians, the Master reported that
they were respectively of the ages of five years,
three years, and two years; that their mother
would be the proper guardian of their per-
sons; and that two of them, being females,
were entitled to certain property, out of
which £10 per annum should be allowed for
the maintenance of each; that the third,
being a boy, was entitled, as the heir-at-law,
to the freehold estates of which his late father
was seized in possession, subject to his mo-
ther’s right of dower thereout, and that £100
per annum would be a proper allowance for
his maintenance. The Court having allowed
an objection to the finding as to the right of
the minor’s mother to dower, upon the ground
that she was barred of dower by her settle-
ment, increased the allowance for the main-
tenance of the male infant from £100 to £150
per annum.—ZIn re Herons Minors, 3 I. E. RB.
589. (R.)

6. A party had maintained a minor plain-
tiff for a period of seven years. Order of
reference to inquire by whom the minor had
been maintained, confined to six years.—Fo-
restal v. Doyle, 8 I. E. R. 520. (E.E.)

7. Maintenance will not be allowed out of
funds which, by the direction of the will, are
to accumulate, and be laid out in the pur-
chase of lands, to be entailed on the minor in
tail, with remainder over.—Shaw v. M‘Mahon,
8L E.R. 584. (R.)

8. The present income of a minor’s pro-
perty was insufficient to keep down the an-
nual interest of the incumbrances. It appear-
ing, however, that the property was sufficient
to discharge all the incumbrances, the Court
gave the minor maintenance out of it.

Pursuant to an order of reference in a
minor matter, to report the mature and
amount of the minor’s fortune, the Master
reported according to his construction of a
will. The Court refused to declare the rights
of the claimants under the will, or to confirm
the report.—Jn re Corkers Minors,3 Jon. & L.
317. (C.)

9. A fund was vested in trust to pay the
Maintenance, §c.

interest to one for life, and after her death to
her children. The Court refused, even with
the consent of the mother, to advance any
part of the principal for the maintenance of
the minor, the consent being in another re-
spect objectionable.— Walker v. W., 111. E. R.
329. (R.)

1. Three minors were entitled in equal
shares to about £800. Their parents being
dead, two of them resided with their uncle.
An order was made on petition that part of
the principal sum should be advanced for
their support, maintenance, and education,
and to repay advances made by him for that
purpose.—Inre Moffats Minors, 21. Jur. 259.(R.)

2. The Court’s jurisdiction to make a sum-
mary order of reference upon petition under
the Ch. Reg. Act, s. 15, praying the appoint-
ment of guardians, allowance of maintenance,
settlement of a scheme of education, &c., in
minor matters, will be exercised with great
reluctance.

Semble—It is better to present a summary
petition in the minor matter.— (Garnett v. G.,
21. Jur. N. 8.314. (C.)

3. The Court’s jurisdiction to make a sum-
mary order of reference upon petitions under
the Ch. Reg. Act, s. 15, praying the appoint-
ment of guardians, allowance of maintenance,
settlement of a scheme of education, &c., in
minor matters, will be exercised with great re-
luctance.

Semble—It is better to present a summary
petition in the minor matter.—Fetherstone v.
Moore, 21. Jur. N. 8. 315. (C.)

4. A father, professedly a Roman Catholic,
had his children baptised by Roman Catholic
priests, and their births entered in a Douay
Bible, but they never, during his’ life, at-
tended Roman Catholic worship, except on
one occasion of great solemnity, to see Mass
performed, by way of a spectacle. He hada
Protestant governess for the younger, and
placed the two elder children at a Protestant
school, and they, with his sanction, attended
worship at a Protestant church, and were
generally brought up as Protestants. By his
will he appointed his wife, who was a Pro-
testant, their testamentary guardian. Held,
that the children who were wards of Court
should be brought up as Protestants.

The Court will be guided by the intention
of the father as to the faith in which his
children shall be brought up, and will not act
on the ground of the worldly advantage of
the children.

The circumstance that the children have
for several years after the father’s death been
brought up in a particular faith, is one which
should weigh with the Court as to those of
the children who are of an age to have formed
opinions on religious subjects—ZIn re Kellers,
5 1.C. R. 328. (R.)

5. A ward of Court, aged about nine years,
who had been ordered to be brought up a R.
C., was, in disobedience to the order of the
Court, removed out of its jurisdiction by a
relative, and educated in the doctrines of the

[INFANT.]

 

Powers, Sc. 399

Estabd. Church. At the age of fifteen years
she was brought back within the jurisdiction,
and the Lord Chancellor having in personal
interviews been convinced that she was her-
self attached to the religious opinions in
which she had been brought up, ordered her
future religious education to be conducted
in conformity with them. The actual con-
scientious convictions of a minor who has
arrived at the age of conscious responsibility
are to be secured against pressure or coercive
influence—ZJn re Browne, 8 I. C. R. 172. (C.)

6. A R. C. father, married to a Protestant,
had all his children, eight in number, baptised
by R. C. clergymen, but permitted the child-
ren when of sufficient age to receive instruc-
tion and attend divine service as Protestants.
They did not receive any religious instruc-
tion as R. Catholics, nor attend the Catholic
worship. The father died in the life of the
mother, who afterwards was obliged to enter
the workhouse, and there registered the child-
ren as Protestants. The mother died, leaving
the eldest child about twelve years of age,
and the youngest about one. Her wish was
that the children should be brought up as
Protestants. The husband on his death-bed
was attended by a R. C. priest, and it was
alleged that he had expressed a wish that
the children should be brought up as R. Ca-
tholics, but evidence was given that he had
subsequently expressed a different wish. Held,
that the children were to be brought up as
Protestants.

The children had no property whatever,
but an undertaking to invest a sum for their
benefit was given. Held, that the Court had
jurisdiction to direct who should have the
custody of the children.— Jn re O’Malleys
Minors, 8 I. C. R. 291; Dr. Rep. temp. Napier,
358; 41. Jur. N.S. 195. (C.)

7. The 15th section of the Ch. Reg. Act
is not imperative. The power conferred by it
of summarily referring to the Master petitions
to appoint guardians, and the allowance of
maintenance to infants, ought not to be exer-
cised.— Charleville v. Tighe, 9 I. C. R. 309; Dr.
Rep. temp. Napier, 613. (C.)

8. Order made to pay a small legacy to an
infant’s guardian, upon his undertaking to
apply the amount in purchasing an outfit for
the infant, and paying the price of his pas-
sage to New Zealand.—Jn re Salter’s Trusts,
171.C. R.176. (R.)

_ 9. Minors made wards of Court, a guardian
appointed, and their maintenance and resi-
dence provided for by the order, without a
reference to the Master; the minor’s fortunes
being small.—In re Kennys, 17 1.C. R. 246. (R.)

 

II. Inrants’ Powers, Lraniiirres, anp D1s-
ABILITIES.

- Generally: Plea of Infancy.

- When bound by Acts done during Infancy.
When Parol may demur.

. Suits by or against : other Incidents.
When Infancy excuses other Persons.

our oo tort

 
400 His Powers.

II. 1. Infants’ Powers, Liabilities, and Disabili-
ties, generally.

1. A male minor who was entitled abso-
lutely to real estate, and was a ward of the
Court, married without the consent of the
Court; but the Court directed the marriage
ceremony to be celebrated a second time, in
order to remove doubts as to the validity of
the first marriage, which was accordingly done.
Held, that the Court would not order the
minor to settle his real estate in strict settle-
ment when he attained his majority.—Jn re
Murray, 5 1. E. R. 266; 8 Dr. & War. 183; 2
Con. & L. 136.- (C.)

2. If an infant have conflicting titles under
a settlement and under a will, he may be put
to his election at once, notwithstanding his
infancy, as the Court will elect for him.—
Morrison y. Bell, 5 1. E. R. 354. (R.)

3. A minor is as much bound as an adult,
by the mode in which his case is conducted.—
Stoughton y. Crosbie, 51. E.R. 451. (E.E.)

4. It does not seem contrary to natural
justice, that if a minor may trade by the laws
of a foreign country, he may also be made an
insolvent there, and the Court, upon demurrer,
will assume the law of the colony to be so.

Semble— An infant trading in a foreign
country may acquire a domicile there.—
Stephens v. M‘Farland, 8 I. E. R. 444. (R.)

5. A.minor, having made a Scotch “ matri-
monial contract” of doubtful validity, became
a widow, and entered into the enjoyment of
her jointure. There being no evidence of the
Scotch law on that subject, the Court Held,
that the contract had been confirmed.—Lock-
hart’s Trust, ex parte Lady Lockhart, 11 I. Jur.
N.S. 245. (R.)

II. 2. When bound by Acts done during
Infancy.

6. A feme covert, or infant, is just as much
bound by notice as an adult.— Jones v. Kearney,
41. E.R. 74; 1. Dr. & War. 134; 1 Con. & L.
34. (C.)

7. By agreement between A., B., C., and
D., a minor, it was agreed that a partnership
should be formed for nine years, unless
sooner dissolved by mutual consent; C. to
pay £1000 as her proportion of the capital;
D. to be paid £50 a-year salary for his
services. At the expiration of the third
year, if D. had conducted himself honestly
and duly in the discharge of his duty, and
to the reasonable satisfaction of A. and
B.,” he should become entitled to C.’s share
in the capital, and be substituted for her as a
partner, his salary then ceasing. If C. ceased
to be a partner before the end of the three
years, her share to become the property of D.,
if he should not previously have misconducted
himself in the office which he had in the part-
nership. After D. attained his age, and be-
fore the expiration of the three years, he was

[LINFANT.]

 

Liabilities, &e.

refused further maintenance and interference
in the business. D. filed a bill for specific
performance of the articles and to enjoin a
dissolution of the partnership. Held, on ge-
neral demurrer, that D., by filing his bill after
his majority, was bound by the agreement, so as
tomakeitmutual; that there was sufficient con-
sideration moving from the plaintiff to entitle
him to enforce the agreement; that there was
not such ambiguity in the services to be ren-
dered by him as to prevent the agreement
being specifically executed ; that the perform-
ance of those services to the reasonable satis-
faction of A. and B. was essential to plain-
tiff’s right, and that they alone were judges of
this, and, therefore, the plaintiff could not
enforce the contract against them.—Jilliken
y. M., 81. E.R.16. (R.)

II. 3. When Parol may demur.

8. A decree of foreclosure and sale against
the mortgagor, and against an infant, who is
entitled under a settlement of the equity of
redemption, must give the infant a day to
show cause after he shall have attained age.
If a decree against an infant give him a day
to show cause, the Court will not, before the
day given, order him to execute a conveyance
to the purchaser under the decree.—Chbborn
v. Forstall, 51. E.R. 531. (R.)

9. Lands were mortgaged in fee, and sub-
ject thereto the equity of redemption was
settled in strict settlement. The first tenant
in tail was a minor. Held, that in a decree
for a foreclosure and sale at the mortgagee’s
suit, the minor should not be given a day to
show cause.

When the decree directs an immediate sale,
and no conveyance of the legal estate is re-
quired from a minor defendant, the decree
ought not to give him a day to show cause.—
Hutton v. Mayne, 9 I. E. R. 343; 8 Jon. & L.
584. (C.)

IL. 4. Suits by or against Infants: other
incidents.

10. An infant defendant who has attained
his age pending the suit, having previously
answered in the usual form by his guardian,
will be permitted to put in a second answer,
making a new defence, but not merely re-
capitulating the defence made by the other
defendants in the cause, and which. was
equally available for the infant.—J/alone v.
O’ Connor, 2 Dr. and Wal. 491. (C.)

11. A petition under the 1 W. 4, v.47, s. 11,
should state the age of the minor.

Semble—That the 1 W. 4, c. 47, s. 10, ap-
plies to suits instituted before the passing of
that Act.

An infant defendant, entitled to a portion
of the equity of redemption of lands decreed
to be sold in a foreclosure suit, was ordered to
execute the conveyance to the purchaser.

The decree did not give him a day to show
His Powers.

cause against it, on his coming of age.—Jones
v. Ham, 31. E.R. 65. (H.E.)

1. A commission of perambulation for set-
tling boundaries cannot be obtained by peti-
tion under the 5 G. 2, ¢. 9, when there are
minors interested.

The affidavit of service of petition did not
state that the persons served were the only
persons in possession of these lands—Held, a
fatal defect.—Jn re O’Brien, 3 1. E.R. 161. (C.)

2. In a foreclosure suit, a day was given by
the decree to the infant defendant, the heir
of the mortgagor, to show cause against it.
The Court, notwithstanding, made an order
under 1 W. 4, c. 47, s. 11, directing an im-
mediate conveyance to the purchaser by the
infant.—Flood v. Sutton, Flan. & K. 179; 3 I.
E. R. 340. (R.)

8. A deed executed by a tenant for life and
his eldest son, an infant, tenant in quasi tail
in remainder—Held, a valid bar, because of
subsequent dealings of the son with the pro-
perty—Allen v. A., 4 I. E. R. 472; 2 Dr. &
War. 307; 1 Con. & L. 427. (C.)

4. When the same person is next friend of a
married woman and of infant plaintiffs, he
may be compelled to give security for costs,
upon the ground of insolvency alone.

Where a bill was filed in the vacation, and
the time for demurring to it expired in va-
cation, and the defendant filed a demurrer,
accompanying it with a notice that it was
done without prejudice to the defendant’s
moving for an order for security for costs, and
at the same time served notice of a motion to
that effect—Held that the filing of the demur-
rer was not a waiver of the right to compel
security for costs—Drinan v. Mannix, 5 I. E.
R. 190; 3 Dr. & War. 154. (C.)—[See ibid,
162. (R.)j—[Followed in M‘Keon v. Walsh,
11.C. R. 608. (R.)]

5. When two suits to effect the same pur-
pose are instituted on an infant’s behalf, by
different persons, each of whom acts as his
next friend, that suit which appears most for
his benefit will be preferred, on taking into
account every circumstance likely to influence
the course of the proceedings. The priority
of one suit, or the fact that in one the next
friend is a relative, and in the other not, is to
be disregarded if it appears that the latter
suit is most likely to be prosecuted zealously
for the infant’s benefit. The Court will re-
strain the further prosecution of a suit not
for his benefit.—Morrison v. Bell, 5 I. E.R.
354. (R.)

6. The tenant of a lease for lives renewable
upon payment of fines and a penal rent, being
an infant, and the lease not having been re-
newed for fifty years—Jeld, that the Court
would not upon petition direct a reference to
ascertain what was due for rent and fines;
but would require a suit to be instituted.—
In re Colthurst, 5 I. E. R. 322; 3 Dr. & War.
35; 2 Con. & L. 35. (C.)—[Revg. Fl. & K.
515. (R.)]

[INFANT]

 

Liabilities, Se. 401

7. When the personal representative, and
the infant heir-at-law of a deceased debtor
were co-defendants to a suit instituted by a
simple contract creditor of the ancestor, and
there was a consent order that the personal
representative should be examined as a wit-
ness in the cause—Held, that the deposition so
taken was admissible in evidence against the
infant co-defendant.—Lynch v. Joyce, 3 Dr.
& War. 349. (C.)

8. Counsel, acting for a minor heir-at-law, .
are justified in exercising their discretion
whether or not he ought to take an issue of
devisavit vel non?—Knipe v. M-Mahon, 4 Dr.
& War. 295. (C.)

9. When a trustee who did not labour under
any disability, declined to act, application by
petition for a new trustee granted, although
some of the c. g. ¢. were minors. the funds
being small.—Plunket v. Smith, 8 I. E. R. 523.
(E.E.) :

10. Ina decree for a sale in a mortgage
cause, an infant owner of the equity of re-
demption is not entitled to a day to show
cause.— Hutton v. Mayne, 9 I. E. R. 343; 3
Jon. & L. 586. (C.)

11. The clerk in Court will not be directed
to file an answer for a minor, unless the de-
fendant has been regularly served.—Porter v.
Vesey, 1 I. Jur. 235. (R.)

12. After a decree to account, a minor de-
fendant attained age. On a re-hearing, at
his application, new inquiries were directed,
though no new answer was filed, and though
the minor, after attaining age, had contested
the case under the former decree.—Purcell v.
Ruckley, 121. E. R. 55. (C.)

13. The plaintiff in the second cause by his
next friend, was a minor. The consent was
signed by his attorney, but not by his next
friend. Semble—The submission did not bind
the minor. /

Practice where the submission is entered
into in a cause to which minors are parties.—
Fagan vy. F., 12 1. E.R. 483. (R.)

14. An order cannot be made in a cause
petition against a minor without process.—
Holmes v. H., 31. C. R. 126. (C.)

15. The principle on which Hardman v. El-
lames (2 M. & K. 755) was decided is appli-
cable to cause petitions; therefore, where a
petitioner refers for greater certainty to a
document as in the petitioner’s possession,
the respondent is entitled to its production.

But where some of the petitioners were
minors, and sued by their next friend, the
Court allowed the petition to be amended, by
withdrawing the words of reference to the
document.—Peyton v. Lambert, 6 I. C. R. 9;
21. Jur. N. 8.96. (R.)

 

IL. 5. When Infancy excuses other persons.

 

51
402 When

Ill. Errect oF ATTAINING FULL AGE,

 

IV. Inrant TrusteEp, &c.

1. An infant deft., entitled to a portion of
‘the equity of redemption of lands decreed to
be sold in a foreclosure suit, was ordered to
execute the conveyance to the purchaser.
The decree did not give the infant a day to
show cause on coming of age.—Jones v. Ham,
31. E.R. 65.  (E.E.)

2. In a foreclosure suit, a day was given by
the decree, to the infant deft., the mortgagor's
heir, to show cause. Nevertheless, the Court,
under 1 W. 4, c. 47, s. 11, directed the infant
to convey the lands immediately to the pur-
chaser.—flood v. Sutton, 31. E. R. 340; FL. &
K. 179. (R.) :

8. When a minor deft. cannot write, the
Court will direct that he be assisted in exe-
cuting the conveyance under the 1 W. 4, c. 47,
by a commissioner for taking affidavits.—
Henry v. Rankin, 41. E.R. 681. (E.E.)

4, Infant, tenant in tail of lands decreed to
be sold for an equitable charge, is a trustee
under the 1 W. 4, c. 60, ss. 8 & 18.—Peyton v.
M'‘Dermott, 61. E. R. 220. (R.)

5. When lands are decreed to be sold ina
mortgage suit, the infant heir-at-law of the
mortgagor is not a trustee within the 1 W. 4,
-c. 60, ss. 8 & 18.—Goddard v. Macaulay, 6 I.
EL. R. 221. (&.) ‘

G. The Court, under the 1 W. 4, c. 47, s. 11,
will order the infant to execute the convey-
ance to the purchaser.— Clinton v. Bernard, 6
I. E. R. 355. (C.)

7. Form of order upon an application for an
infant mortgagee to convey under the 1 W. 4,
c. 60, s. 6.—Ln re Halliday, Dru. Rep. temp. Sug-
den, 3. (C.)

8. Upon petition, a minor, not a party to
the cause, was ordered to execute the convey-
ance. He refused. Held, that a further pe-
tition must be presented to obtain an order
that an attachment shall issue against him,
and that a person appointed by the Court
shall execute in the infant’s name.

Semble—The 4 & 5 W. 4, c. 78, does not
apply to minors.—Jfoore v. Grogan, 91. E.R.
472. (R.)

9. In 1844, a petition, under the 1 W. 4, c.
60, stated that in 1823 V. devised real estate
to a trustee to pay debts; and, after payment
thereof, in trust for the petitioner; that V.
died in 1824, and that thereupon the peti-
‘tioner entered; that many years ago the peti-
tioner and the trustee sold part of the estate,
and paid all the debts; that the trustee had
died; and that his heir was a minor. The
petition prayed a conveyance of the legal
estate. The Court directed inquiries—Whe-
ther the minor was a trustee for the petitioner

[INFANT.]

 

Trustee, &c.

alone, discharged of debts and the trusts of
the will ?—Jn re Barry, 2 Jon. & L.1. (C.)

10. The Court has not power, under the 28
G. 3, c. 35, to direct the Master to execute a
conveyance in the name of an infant residing
out of the jurisdiction.

An application to the Court for that pur-
pose, under the 1 W. 4, c. 47, or 1 W. 4, ec. 60,
must be made by petition, unless the minor
has been ordered, at the hearing, to convey.—
M‘Gechan v. Rankin, 12 I. E. R. 182. (R.)

 

V. INFANT EN VENTRE SA MERE.

 

INFERIOR COURTS.
See Courts, II, II, [V—Jurispiction, IV.

 

INFORMATION.
See Cuarity, [V—Purapine, Ixrormation.

 

INFORMER.
See Common INFORMER.

 

INFRA DIGNITATEM.
See JuRispiction, IX.

 

INFRINGEMENT OF COPYRIGHT.
See CopyricuHr.

 

INHERITANCE.

 

INJUNCTION.

— Generally. See Practice, Insuncrion.

— Affidavits in support of. Sce Pracrics,
EVIDENCE.

— Payment of Money into Court on.
tice, Payment nro Court.

See Prac-

 

INJURIES.
— Arising from Acts and Orders of the Court.

 

INNS OF COURT.

 

IN PARI DELICTO.
See Particers Criminis.

 

INROLMENT OF DEEDS.

— Of Annuity. See Annurry, IL.
— Of Decree. See Practice, Decren.
See Deeps, XII.

 

INQUEST AND INQUISITION.

See Crown—Escupat—Lunacy, IV—Prac-
TICE, INQUEST.
[INSOLVENCY GENERALLY.]

INSOLVENT DEBTORS, AND EFFECT
OF INSOLVENCY.

See Preapine, Parties—Pieapine, Prea—
Practicr, ABATEMENT anp Revivor—
Practice, Costs—Princrpat & AGENT,
V—Principat & Surety, V—Serrie-
MENT, [V—Trusrer, VIL—20 & 21
Vic., c. 60.

I. In GeneRAL—WAAT IS—WHO Is ENTITLED
TO THE BENEFIT OF THE INSOLVENT
Acts—ConsTRUCTION OF.

IL. Insotvent’s Properry—Wuat Vests IN
ASSIGNEES.
I. In general—-Schedule of—Setting aside
Fraudulent Conveyances—Rights of
Insolvent’s Wife.
2. Sale, Disposition, and Application
thereof.

 

Tl. Actions anp SuITs BY AND AGAINST AN
INSOLVENT OR HIS ASSIGNEES—J URIS-
DICTION OVER.

IV. His Crepirors’ Riguts—ScHEDULE OF
THEIR Depts.

V. Errect or—To wuat RIGHTS IT Is A
Bar—ForFEITURE BY.

 

I, InsoLveNcy IN GENERAL—WHAT CONSTI-
TUTES IT—WHO IS ENTITLED TO THE
BENEFIT OF THE INsoLventT AcTs—
Tuerr CONSTRUCTION.

1. In a suit by an insolvent and his assignee,
it appeared at the hearing that the deed of
assignment had not been executed until im-
mediately before the hearing. It was objected
that the assignee had not any interest when
the bill was filed. Held, that under the 3 G.
4, c. 126, s. 16, the insolvent’s estate and
effects vested back by relation; and that
therefore the objection must be overruled.—
-Cashell v. Kelly, 2 Dr. & War. 181; 1 Con. &
L. 246. (C.)

2. A., having passed his bond and warrant
to confess, &c. to trustees, and having been
discharged as an insolvent under the 3 G. 4,
v. 126, returned them in his schedule for the
amount. Judgment was afterwards entered
on the warrant by them, and assigned to new
trustees on the old trusts, by a deed to which
A. was a party. Held, that this was in the
nature of a new obligation, and that the judg-
ment was an available security—Badl v. B.,
111. E. R. 370. (C.)

3. An insolvent, having parted with all
his estate, which became vested in the pro-
visional assignee, cannot sustain a bill for an
account of the amount due on a judgment
under which he was arrested.—Crotty v. C., 2
I. Jur. 161. (C.)

4. A jury shall not be tied down to test in-
solvency by any one act.—Clements v. Eccles,
21. Jur. 286. (C.)—[See s.c, 11 1 E.R.
229 (C.), where the issues were directed.] |

5. Under the 3 & 4 Vic., c. 107, s. 85, the
Court for the Relief of Insolvent Debtors in
Treland has not jurisdiction to order that an
insolvent be re-heard upon the matter of his

 

403

petition and schedule before an Assistant-
Barrister, who has already adjudicated upon
the case, pursuant to the 14 & 15 Vie., c. 57,
s. 119, and has fallen into a mistake in law
when doing so.

A re-hearing before the Assistant-Barrister
can only be directed in cases in which the
previous adjudication has been procured by
means of perjury, fraud, or other like acts, of
the parties themselves.

Semble—Where the case does not come
within the meaning of the statute, the appli-
cation for an order to re-hear should be made
on the earliest opportunity, and so that the
re-hearing may take place at the Quarter
Sessions next ensuing that at which the ori-
ginal adjudication was made.—ZIn re G., 2 I.
C. R. 861; 31. Jur. 136, 279. 1.)

6. W., entitled to an annuity, and to a fund
in reversion, on his first marriage, assigned
them in trust, to pay the annuity to W., for
life, or until he should become bankrupt or
insolvent ; and from the time of his death, or
of his so becoming bankrupt or insolvent,
upon trust, in favour of the wife and the issue
of the marriage. Upon his second marriage,
W. assigned to trustees another fund, to which
he was entitled after the death of A., in trust
for himself for life after the death of A., or
until he should fail in circumstances, or be-
come bankrupt or insolvent; and after his
decease, bankruptcy, or insolvency, to pay the
principal sum amongst his two children of the
first marriage, and the issue of the second
marriage, as he should appoint, &c. Held,
that the insolvency in the settlement on W.’s
first marriage, on whéch the limitation over
was to take effect, was an inability to pay his
debts, and not taking the benefit of the In-
solvent Act.

Semble—A-limitation in a settlement, that
the settlor’s property shall go over on his in-
solvency, is valid.

eld, that the limitations in both the settle-
ments were valid as against trustees, to whom
W., when he was unable to meet his debts
and liabilities, had assigned his life interests
for the payment of his creditors.

That a failure, bankruptcy or insolvency,
meant by the second settlement, before the
death of A., the first tenant for life, would
give effect to the limitation over.—Casey’s.
Trusts, 3 I. C. R. 419. (R.)—[See s. ¢., 41.
C. R. 247. (C.)]

7. A decree declared T. entitled to the
dividends of a fund for life, provided he
should not become bankrupt or insolvent ;
and that, after his decease, or in case of his
bankruptcy or insolvency, A. and V. would
be entitled upon the trusts of T.’s marriage
articles. By them the fund was vested, upon
trust, to permit T. to receive the dividends
for life, provided he should not become a
bankrupt, or apply for or obtain his discharge
under any Act for the Relief of Insolvent
Debtors; and if T., during the joint lives of
himself and his wife, became a bankrupt, or
applied for or obtained his discharge under
any Act for the Relief of Insolvents, then to
404 Vesting.

pay the dividends to the separate use of his
wife; and if the wife should not be then
living, or should, after the happening of either
of these events, die in the life of T., leaving
issue, then upon trust to apply the dividends
to the benefit of the issue, as T. should ap-
point. T., after his wife’s death, presented
for his discharge under the Insolvent Act a
petition, which was dismissed with the consent
of his creditors. The schedule filed showed
that he was in a state of insolvency. Jedd,
that the limitation over on the bankruptcy or
insolvency of T. had taken effect; and that
an assignee from him had no right to the divi-
dends of the fund, either under the decree or
the articles.

The word “insolvent” in a decree or deed
is to be construed in the ordinary sense of a
person who is unable to pay his debts; not
in the technical sense of one discharged as an
insolvent debtor.— Caulfield v. Maguire, 51. C.
R. 78. (R.)

1. An insolvent, who lived extravagantly,
went on contracting debts which he was un-
able to pay, and filed sham defences to just
actions by his creditors, was remanded for a
year, although there was not any evidence of
concealment, or that property had been other-
wise made away with—Re Barry, 6 I. Jur. N.
8. 357. (B.)

2. An insolvent attempted to account for
property, disposed of immediately before his
insolvency, by alleging that he had paid a
creditor who had left the country ; and swore
that he could not give any other account.
The Court remanded him for the longest
period allowed by law.—Re Smith, 71. Jur.
N.S. 120. (B.)

3. An insolvent pleaded false pleas to an
action of debt, and brought an unfounded
cross action. Both actions having been re-
ferred to arbitration, the creditor recovered
less than he sued for. Held, not a vexatious
defence, and the insolvent was only remanded.
Re M‘Carthy, 81. Jur. N.S. 187. (B.)

4. The Court will not decree specific per-
formance of a contract for a lease to an in-
solvent.—M‘Nally v. Gradwell, 16 I. C. R. 512.

R.)

II. Inso.vent’s PROPERTY: WHAT VESTS IN
ASSIGNEES.

1. dn general: Schedule of: setting aside
Fraudulent Conveyances: Rights
of Insolvent’s Wife.

2. Sale, Drsposition, and Application
thereof. ;

 

 

Il. 1. Insolvent’s Property: what vests in
Assignees generally.

5. A fund (£1000) in Court, a married
woman’s property, whose husband had been
discharged as an insolvent, was ordered to be
applied as follows:—£600 to the wife and
children, and £400 to the assignee for the
creditors’ benefit: the Court declining to fol-

[INSOLVENT’S PROPERTY.]

 

Sale of.

low the rule in Brett v. Greenwell, 3 Y. &C.
230.—Napier v. N., 1 Dr. & War. 407. (C.)

6. Under the English Insolvent Act, the
vesting order transfers to the assignee the
insolvent’s property, subject to the Irish law
relating thereto. Therefore, a creditor by
judgment, prior to the date of the vesting
order under the English Act, is entitled to
obtain a receiver over the insolvent’s lands in
Treland.—Reilly v. Jacob, 71. E. R. 199. (R.)

7. Upon the sale of lands subject to an
annuity, the vendor covenanted that other
lands should be an indemnity against it. He
afterwards on his marriage settled the in-
demnity lands upon himself for life ; remain-
ders over; and covenanted that the settled
lands were free from incumbrances. The
tenant for life having suffered the annuity to
run in arrear, the arrears were raised by sale
of part of the settled lands—Held, that the
remainderman had an equity against the
tenant for life, and against his assignee, under
the Insolvent Act, to be recouped the arrears
so levied, out of the produce of the life estate.
Coote v. O'Reilly, 71. E. R. 356; 1 Jon. & L.
455. (C.)

8, A., entitled to lands in Ireland, was dis-
charged in England as an insolvent, under the
the 1 G.4,c. 119. The assignment of all his
estate and effects to the provisional assignee
was filed in the Insolvent Court, but was not
registered. The sub-assignment to the general
assignees was not registered. Afterwards A.,
by deed duly registered, mortgaged his Irish
estates to B., who had not notice of the in-
solvency. Held, that the mortgagee’s title
should be preferred to that of the insolvent’s
assignees.—Battersby v. Rochfort, 8 I. EB. R.
284; 2 Jon.& L. 481. (C.)—[Revd.,s. ¢. 9 I.
E.R. 191; 2 Jon. & L. 451. (C.)—Affid., 2
H. L. Cas. 288; 14 Jur. 229; 10 I. E. R. 439.

ce)

9. An estate was limited to L. for life, with
power-to lease at the best rent. L. demised
for years to a trustee to secure an annuity to
G., and covenanted to exercise his leasing
power. L. was afterwards discharged as an
insolvent. L. and G. agreed to demise, and
executed a lease. Held, that the provisional
assignee was bound to execute it, since he
took the estate subject to all the equities and
liabilities to which it was subject in L.’s hands ;
and because the exercise of the power was
beneficial to the creditors.—Dyas v. Cruise, 8
I. E. R. 407; 2 Jon. & L. 460. (C.)

Il. 2. Sale, Disposition, and Application of In-
solvent’s Property.

10. A fund (£1000) in Court, property of a
married woman, whose husband had been dis-
charged as an insolvent, was ordered to be
applied as follows, £600 to the wife and
children, and £400 to the assignee for the
creditors’ benefit; the Court declined to fol-
low the rule in Brett v. Greenwell, 3 Y. & C.
230.—Napier v. N., 1 Dr. & War. 407. (C.)

 

11. By marriage articles of 1767it was agreed
Actions

that £1000, secured by the bond of A., the in-
tended husband, on which judgment was en-
tered, should be divided among the younger
children of the marriage. By deed of 1795,
A. conveyed the lands of K., of which he was
seized in fee, to the use of himself for life ;
remainder, subject to £500 secured by a term
for his younger children, to J., his second son,
for life; remainder to his third, &c., sons in
tail. In 1798, A. made his will, without no-
ticing the deed of 1795, and devised K., sub-
ject to £1000 for his younger children, to J.
A. died, and bills were filed in 1803 and 1818,
on behalf of some of the younger children to
raise the £2000 secured by the articles and
the will; but not noticing or relying on the
deed which was afterwards put in issue by one
of the answers. In 1818, G., the fourth son,
entitled to an estate tail in remainder, under
the deed, became insolvent. He and his
assignee were parties to the latter suit, but
not in respect of that estate. A decree for
sale of the fee was pronounced for the sum
due under the articles, and part of the sum
due under the deed. The abstract of title
stated the insolvency of G., and that the heir
of his assignee would join in the conveyance.
The assignment under the insolvency had been
lost; but the deed of 1795 was referred to in
the schedule. Held, on objections to title,
that the abstract and schedule afforded sufti-
cient evidence of an actual assignment of the
estate tail in remainder, under the Insolvent
Act then in force.

That the assignment, though made pendente
lite, was valid, being made under the authority
of a statute, and conveyed a base-fee to the
assignee; and, the decree not being binding
on him, the title was defective.

That the defect could not be cured by the
heir of the assignee joining in the conveyance,
as he was a trustee for the creditors of G.,
who did not appear to have been paid, and
were not bound by the decree.

That the decree was not erroneous in direct-
ing a sale of the fee for a portion of the sum
secured by the term in the deed of 1795.—
Keogh v. K., 13 1. E. R. 284. (R.)

 

III. Actions or Suits BY OR AGAINST AN In-
SOLVENT OR HIS ASSIGNEES : J URISDIC-
TION OVER.

1. The 53 G. 3, c. 188, does not oust the
jurisdiction of Chancery to entertain a bill by
the assignee of a deceased insolvent, for the
administration of his after-acquired property,
on behalf of the unsatisfied creditors in the
insolvent matter.—Byrne v. B., Flan. & K.,
438. (R.); 2 Dr. & War. 71; 1 Con. & L.,
189; 41. E.R. 621. (C.) ;

2. An insolvent deft.’s provisional assignee
is not entitled to a fee for counsel approving
a deed which the assignee is called upon to
execute under a decree.— Wallace v. Macan,
Fl. & K. 554.

3. Ptf. having been appointed insolvent’s
assignee, a good while after the insolvency, is
not sufficient proof of there being debts, to

[INSOLVENT.]

 

by or against. 405

justify the Court in granting a receiver over
the insolvent’s property upon bill and answer,
when it is sworn by the answer that ptf. and
all the creditors have been paid.— Hegarty v.
Bourke, 2 Dr. & War. 580; 1 Con. & L. 565.
(C.)

4. The provisional assignee of the Insolvent
Court, made a party defendant as such, stands
in the place of the debtor; and is not entitled
to his costs as against the plaintiff, when the
debtor would not be so entitled.— Walker v.
Molloy, 6 I. E.R. 218. (E.E.)

5. Plaintiff, claiming as assignee of F.,
sought an account of the real and personal
estate of F., to which he was entitled under
his father’s will; and alleged by his bill that
F., trading in Australia, was duly adjudged
an insolvent according to the meaning and
effect of the laws there with respect to in-
solvent debtors; that all his estate, &c., there
and in this kingdom thereupon became duly
vested in H., and afterwards became duly
vested in plaintiff ‘““in manner as appears by
the petition of plaintiff to C., Chief Justice;
the fiat of C.; the adjudication and vesting
order signed by C., and the other orders in
the matter, to which the plaintiff refers,” &c.
It appeared by the bill that F. was a minor,
at the time of the insolvency, and that his
parents had previously resided and died in
this country. Held, on demurrer, that the
plaintiff’s title, as assignee, was sufficiently
stated, the profert of the proceedings in the
foreign Insolvent Court being sufficient proof
of the preceding allegations that F. was duly
adjudged, &e.

It does not seem contrary to natural jus-
tice, that if a minor may trade by the laws of
a foreign country, he may be also made an
insolvent there, and the Court, upon demur-
rer, will assume the law of the colony to be so.

Semble—An infant trading in a foreign coun-
try may acquire a domicile there.—WStephens v.
M'Farland, 8 I. E. R. 444. (R.)

6. Where the ptf. has been discharged as
an insolvent after the filing of the bill, the
proper order under the 82nd or 83rd Rules is,
that the bill be dismissed against him without
costs, if his assignee do not file a supple-
mental bill within a specified time.—Darling
vy. Marsh, 111. E. R. 261. (R.)

7. A sum was reported due for arrears of
an incumbrance in a suit in which an in-
solvent, but not his assignee, was defendant.
The insolvent afterwards procured from the
assignee a re-assignment. In a subsequent
suit respecting the incumbrance—Held, that
he was bound by the former account.—Byrne
y. Lord Carew, 13 1. E.R.1. (©.)

8. A. assigned a policy of assurance for
£500 to B. to secure a debt of £82. B. gave
noticé of the assignment to the company, and
subsequently, at the request of A., deposited
the policy with C. to secure a debt due by A.
to C. No notice of the deposit was given to
the company. A. became insolvent, and as-
signed by deed the policy of assurance to C.,
406 Their :

to which assignment B. was a party. Notice
of this assignment was given to the company
by C. At the time of taking this assignment
C. had express notice of the insolvency. On
petition by the assignee in the insolvency
matter against the personal representatives
of C., and against the assurance company,
claiming to be declared entitled to the sum
secured by the policy—Held, that the notice
served by B. of the assignment to himself
took the policy out of the order and dispo-
sition of the insolvent.—Jenelon v. Baker, 1
I. Jur.N. 8.1. (C.)

1. The assignees of W., an insolvent, hav-
ing sold a policy of insurance on the life of
W., who shortly afterwards died, some cre-
ditors who intervened in the Insolvent Court
alleged that the sale had been made at an
undervalue, by collusion between the assignee
and the insolvent, and the produce of the
policy was brought into the Insolvent Court.
The purchaser filed a petition against the as-
signee and the intervening creditors, praying
that the produce of the policy might be paid
to him. Held, that as against the creditors
the petition must be dismissed with costs ;
but it was allowed to stand over in order to
have a new assignee appointed.

That the creditors were entitled to the
costs of the affidavits filed by them impeach-
ing the sale-—O’Reilly v. Fannin, 6 I. C. R.
166. (C.)

IV. Ricurs or Insotvent’s Crepitors:
ScHEDULE oF THEIR Depts.

2. A return made by an insolvent in his
schedule is a sufficient acknowledgment with-
in the 3&4 WW. 4, ¢. 27, s. 42.—Barret v. Ber-
mingham, 41. E. R. 537; Fl & K. 556. (R.) ,

 

3. The wife’s estate was, upon her mar-
riage, conveyed to trustees to the use of the
husband until bankruptcy, insolvency, or un-
til an elegit should issue against the lands on
foot of any judgment against the ieands
and from the happening of any of these
events then to the use of the wife for her
separate use. Held, that a judgment creditor
of the husband could not appoint a receiver
over the lands.— Woodroofe v. Marshall, 8 I. E.
R. 670. (R.)

4, R., claiming to be entitled to a charge
upon the lands of L., took the benefit of the
Insolvent Debtors Act. R. afterwards made
several applications to the Insolvent Debtors
Court to have his petition dismissed. Those
applications were founded on affidavits which
stated his intention to apply all his property
for the benefit of his creditors. Eventually
the order dismissing the petition was made
on the consent of the assignee of R., and not
in any way referring to the affidavits. The
lands of L. were sold in the I. E. Court, but
the creditors of R. did not take any steps to
realise the amount of R.’s claims out of the
proceeds of that sale. R. afterwards assigned
his claim’ to H. for money, H. having no no-
tice of the statements in R.’s affidavits, though
he had of the pendency of the insolvent pro-

[INSOLVENT’S CREDITORS.]

 

Rights.

ceedings. Held, that he could not be treated
as constructively a trustee for R.’s creditors.
The amount paid by H. for R.’s claims was
completely inadequate. Some of R.’s credi-
tors obtained charging orders against his
claims on the proceeds of the lands of L.
Held, that the creditors who had not obtained
charging orders were, under the Statute of
Fraudulent Conveyances, entitled to avoid
the assignment to H., and that at the utmost
it could only stand as a security for so much
as had actually been paid by him.—Roche v.
Hassard, 5 I. C. R. 14. (C.)

5. The Court’s jurisdiction to administer
assets acquired after the discharge of a de-
ceased insolvent is not taken away by the 3 &
4 Vic, c. 107. Therefore a suit to administer
such assets may be maintained by a schedule
creditor of the insolvent, or by his personal
representative.—Dunlevie v. Hort, 6 I. ©. R.
82; 21. Jur. N.S. 194. (R.)—[Revd., 6 I. C.
R. 99; 21. Jur. N.S. 293. (C.A.)]

6. When an insolvent is in custody, and has
made a pauper declaration (s. 240) and has
not made satisfaction for the debt, &c., the
detaining creditor may forthwith, after notice
in the Gazette, file a petition of insolvency
under s. 241, and is not bound, and ought not
to wait until the expiration of the twenty-one
days mentioned in s. 183.—Jn re Pratt, 8 I. C.
R. 386. (B.)

7. C., seized of freeholds, became insolvent,
and assigned all his property to the official
assignee. The assignment was not registered,
nor did the assignee enter into possession of
the freeholds. Afterwards the Commissioners
of Public Works made advances to C. to
improve his estates. Held, that C. was an
“owner” within the 10 Vic. c. 32, and that
the advances were valid charges on the
lands.—In re Fite Gerald’s Estate, 12 I.C.R. 81.
(L.E.C.)

8. By post-nuptial settlement the wife’s
father assigned aterm of years in trust for
the husband for life, or until he should become
bankrupt, &c.; and after such event, or from
his decease, in trust to pay the wife for her
life the rents, &c.; after the decease of both, for
thechildren. Proviso, that if the husband be-
come bankrupt, &c., his life interest should
cease, and the trustees should pay the rents to
the wife for her separate use. The husband
and wife, by deed (acknowledged) mortgaged
the wife’s estate in the premises. Afterwards
the husband took the benefit of the Insolvent
Act. Held, that his temporary embarrass-
ment at first did not bring into operation the
limitations to the separate use of the wife;
and that the mortgagee, in a suit instituted
before the insolvency, was not entitled toa
decree for a sale of the wife’s separate estate.
—Bestall v. Bunbury, 13 I. C. R. 549. (R.)—
[See s. c. ibid, 318. (C.A.)]

9. A party bringing a frivolous or unfounded
action, which puts the deft. to costs, fraudu-
lently contracts a debt under the Insolvent
Act.—Re Carpenter, 9 I. Jur. N.S. 20. (B.)
{INSOLVENCY.—INSURANCE.]

1. When an insolvent’s assignee purchases,
at an undervalue, an incumbrance on the in-
solvent’s real estate, the benefit of the pur-
chase shall enure to the schedule creditors.—
In re Browne’s Estate, 71. C. R. 274. (L.E.C.)

2. An insolvent who, in right of his wife,
obtains property, may not settle it for her
benefit and that of their children, if he then
has creditors.—Re Clark, 9 I. Jur. N.S. 384.
(B.)

V. Errect or InsoLvVEeNcY: To wHat Ricuts
If Is A BAR: FORFEITURE BY.

3. I, entitled to a charge upon land, died
under age, unmarried and intestate, leaving
her father, P., her sole next-of-kin, who, before
her death, had been discharged under the In-
solvent Act. C., ason of P., took out admi-
nistration to L The amount of the charge
was realised in the I. E. Court, and paid into
the Court of Chancery, where it was trans-
ferred in the Accountant-General’s books to
the separate credit of the administrator of I.
Held, that P. had an interest in that fund
which could be attached by a charging order.

Semble—That the administrator of I. could
‘not rely on the insolvency as an’ objection to
the charging order.—Brownrigg v. Colclough, 7

 

IC. R. 524; 31. Jur. N. 8. 329. (C.)
INSPECTION.
— Of Proceedings in Bankruptcy. See Banx-

RUPTCY.

— Of Deeds. See Practicz, InsPEcTION OF
DerEps — Practicr, PRopuctTion oF
DEEDS.

— Order for, generally. See Practicx, In-
SPECTION, ORDER FOR.

 

INSPECTOR.
See Banxrvrtcy, X.

 

INSTRUMENTS.

— Lost. See Deeps, VIII.

 

INSUFFICIENCY.

— Reference as to. See Practice, Master,
REFERENCE, &¢.

 

INSURANCE, AND INSURANCE
COMPANIES.

I. GENERALLY.
II. Pouicy or. sy
1. Its Construction and Validity.
2. Rights, Remedies, and Liabjlities of
Parties to— How Benefits of are
Sorfeited. : .
3. Assignment of Assignees’ Rights—Of
Notice.

 

407

IU. Waat may se InsureD—WuHo may
Insure.

 

I. InsuRANCE GENERALLY.

4. V., bequeathed “ one-half of the property
he left to his executrix, to be disposed of at
her death to his nearest relation in law, pro-
vided he or she professed the established
religion ;” and appointed his widow, C., exe-
cutrix. V. bequeathed to her all his worldly
substance of what nature and kind soever,
except such part as was before devised for her
own sole use. At V.’s death, part of his pro-.
perty consisted of two annuities and two poli-
cies of insurance, effected by him on the lives
of the c. g. v. named in the annuity deeds. C.
having regularly received the annuities, and
paid the premiums, received the sums insured
when the respective lives dropped. After C.’s
death, V.’s nearest relation in law, a Protestant,
filed a bill to recover the moiety of the pro-
perty so bequeathed. Held, that C., being
specific legatee of those annuities, which were
freehold, was not bound to keep up the
insurances; but that she having kept them up,
her representative was entitled to be repaid
out of ptf.’s share, a moiety of the sums ad-
vanced, with interest ; and that, as the moiety
to which ptf. would otherwise be entitled was
thereby exhausted, the bill should be dismis-
sed, and with costs, because of the manner in
which ptf. had conducted the cause.—Aoney
‘vy. Gibbs, 1 Dr. & Wal. 394. (C.)

5. A party entitled to a life estate granted
an annuity for his life, redeemable by him at
the end of five years, upon payment of the
original purchase-money. The annuitant ef-
fected an insurance on the life of the grantor
in a sum slightly exceeding the amount given
for the annuity, and kept up that policy out of
the annuity. The grantor, after the expira-
tion of the five years, offered to redeem the
annuity, but required the annuitant to assign
him the policy. He/d, that he was not entitled
to the policy upon the redemption of the an-
nuity, but that it was the property of the
annuitant.—Law v. Warren, 6 I. E. R. 299;
Dr. Rep. temp. Sugden, 31. (C.)

6. A husband, C., covenanted to insure his
life for £1200, and assign the policy to trustees,
and confessed a judgment for that amount, to
be called in if the policy was not so assigned
and kept up. The trustees lent C. £800,
another sum, vested in them by the same set-
tlement on similar trusts. The security was
an assignment of a policy for £800 on his
life. No other policy was assigned to them,
nor were any steps taken to enforce the judg-
ment or covenant. Held, that the proceeds of
the policy might be applied to the purpose for
which it had really been assigned; and that
the trustees’ liability for not compelling C. to
insure depended on his ability— Ball v. B.,11
I. E. R. 370. (C.)

II. Poricy or.
1. Its Construction and Validity.
408 Rights, &c., to

2. Rights, Remedies, and Liabilities of
Parties to— How Benefits of are
forfeited.

3. Assignment of — Assignees’ Rights—
Of Notice.

 

II. 2. Rights, Remedies, and Liabilities of Parties
to—How Benefits of are forfeited.

1. The grantee of a redeemable annuity
effected an insurance upon the grantor’s life,
and out of the annuity paid all the premiums,
except the first. The annuity was silent as to
the insurance. After five years, the grantee,
pursuant to the deed’s provisions, offered to
redeem, but required the annuitant to assign
to him the policy. Held, that it was the annui-
tant’s property; and that the grantor was not
entitled, upon redeeming the annuity, torequire
an assignment of the policy —Law v. Warren,
61. E.R. 299; Dr. Rep. temp. Sugden, 31. (C.)

2. An insurance was effected on the life of
a suretyfor a mortgagor. The premiums were
paid by the mortgagee, who went into poses-
sion of the mortgaged premises. It was not
proved that the mortgagor had ever been
charged with them. In a redemption suit—
Held, that the mortgagor was not entitled to
credit for the amount received on the policy.
—[Humphrey v. Arabin, Ll. & G. temp. Pl., is
good law.]—Bell v. Ahearne, 12 I. E. R. 576.
(C.)—[But’see Gaggin v. Upton, Dr. Rep. temp.
Napier, 427. (C.)]

3. D., a solicitor, on asummary petition pre-
sented against him, had been ordered by the
M. R. to pay asum which was allowed to have
been lost through his misconduct. This order
was reversed by the Lord Chancellor. Shortly
afterwards a cause petition was presented,
praying relief on foot of the same transactions ;
and on the 16th of June 1854, the Court de-
creed that D. should pay £400 to the peti-
tioner. On the 7th of January preceding, D.
had assigned some real estate; also sums due
to him for costs, and a policy of insurance on
his own life, to his son N., on trust (subject to
the payment thereout of scheduled creditors),
for the absolute benefit of N. The petitioner,
on the 10th of July 1854, registered the
decretal order; issued a writ of fi. fa. under
it against the goods of D.; and then filed a
petition, praying that the deed of 7th of Jan.
1854 might be declared fraudulent and void
as against the petitioner. Held, that the de-
cree, not having been registered as a mortgage
under the statute, did not affect the real estate.

That the policy of insurance was not such a
“security for money” as could be seized by the
Sheriff under 3 & + Vic., c. 105, s. 20.

That the real estate not being affected by
the mere registration of the decree, and the
choses in action not being capable of seizure
under the fi. fa., no occassion appeared for the
interference of this Court in aid of the execu-
tion, assuming that the petitioner’s redress was
to be sought in this Court, and notin a Court
of Law; and no sequestration having been
issued, the fact of the execution being from
this Court made no difference in the jurisdic-
tion.— Alleyne v. Darcy, 5 I. C. R. 56. (C.)

[INSURANCE.]

 

Policy of.

4. One of the conditions indorsed on a
policy of insurance was, that no insurance
would be held in force until the premium
should have been actually paid to the Co.; nor
would any policy be valid beyond fifteen days
after the expiration of any year, unless the
premium for its renewal should have been
actually paid te the Co. Insurances might
be renewed within three months, on satisfac-
tory proof of the health of the life insured.
In the printed directions of the Co. to their
agents, every life policy was to be renewed
within fifteen days after the premium became
due; and if any policy was not renewed within
the fifteen days the agent was to give notice
thereof to the secretary, and the policy could
not afterwards be renewed without a fine, and
subject to the conditions of the Co. All re-
ceipts for the renewal of life policies, not
paid within a month from the expiration of
the policies, were to be returned to the office
at the end of that period. A policy was
effected with an agent who, to accommodate
the insurer, took bills for the amount of the
several premiums, debiting himself with the
premiums in his accounts with the Co., with-
out communicating the transaction to the Co.
The bills not having been paid, he took a
security for them. A subsequent premium
having accrued due in Dec. 1846, the usual
receipt in blank for the premium was forwar-
ded to the agent. The premium was not paid,
nor did the agent, at the time it was due debit
himself with the premium, by any entry in a
book or account; but in his next quarterly
account, in March 1847, debited himself there-
with, and shortly afterwards paid the amount,
at the request of the treasurer, without com-
municating the circumstances to the Co. Simi-
lar transactions took place in 1847 and 1848.
The life died in 1849. The receipts for the
premiums, still in blank, were handed back to
the Co. Shortly afterwards a correspondence
took place between the secretary of the Co.
and the agent, who claimed the amount of
the policy. As he had neither the assignment
nor possession of the policy, the Co. declined
to pay, unless the insurer joined in the receipt
for the amount. A report was prepared by
the solicitor for the Co., and sent to the agent,
suggesting that course, or that the agent
should proceed against the insurer, to ascer-
tain their relative rights. The insurer having
declined to join in the receipt, the Co. refused
to give credit for the amount of the insurance
against the balance due by the agent, for
which they brought an action, and recovered
a verdict, without giving credit for the three
premiums of the disputed policy paid by the
agent. The amount was demanded and paid
by the agent to the Co. J/eld, that the policy
had dropped.

That the forfeiture of the policy was not
waived by the report and correspondence
relating to it.

Semble—The retention of the premiums,
with knowledge of all the facts, did not con-
stitute a new contract to set up the policy;
but the Court directed an action to be brought
to try that question.

Held, that, supposing the policy to be set up
Assignment of

by the retention of the premiums, the agent
had a lien on the policy, enforcible in Equity
for the amount of them.—Busteed v. West of
England Insurance Co., 5 1. C. R. 553. (R.)

1. By marriage settlement, personal pro-
perty was assigned upon trust for the separate
use of the intended wife for life; remainder
for her issue as therein mentioned; in default
of issue, to “transfer the sum to and to the use
of the intended wife, her executors, &c., and
for her and their own use and benefit.” Held,
that the limitation in default of issue did not
create a trust for the separate use of the wife.

Part of the fund comprised in the above
settlement consisted of a life annuity and a
policy of insurance on the life of the c. g. vies
of annuity. There was no direction in the
settlement to pay the premiums on the policy,
but the trustee did pay these premiums out of
the income of the settled property which was
payable to the separate use of the wife. Held,
that it was the duty of the trustee so to
apply the income, and that no lien in favour
of the separate estate of the wife was created
by the policy or its proceeds for the amount
paid to keep up the policy—Darcy v. Croft,
Dr. Rep. temp. Napier, 403; 41. Jur. N.S. 81;
91C.R.19. (C.A.)

2. The nature of a Contract of Life Insurance
considered. It maynowbe takenassettled that
a life insurance is not to be regarded as being
necessarily a contract of indemnity, but that
in each case the real question will be :— What
was the actual contract of the parties?

Godsall v. Boldero, 9 East, 72, being no longer
law—Semble, that the reasons upon which
Humphrey v. Arabin, Ll. & G. temp. Plunket,
318, and Bell vy. Ahearne, 12 I. E. R. 576,
proceed, cannot any longer be supported, so
far as they depend upon any supposed dif-
ference between the law of England and that
of Ireland in cases of life insurance.—Gaggin
y. Upton, Dr. Rep. temp. Napier, 427. (C.)

 

Il. 3. Assignment of: Assignees’ Rights: Notice.

3. A trader, who was local agent of a Scotch
Insurance Company, having their principal
place of business in Edinburgh, and having
an agent in Dublin for all Ireland, by whom
the local agents were appointed, and with
whom they communicated, effected an insur-
ance with the company upon his own life, and
assigned it to a bank, to secure a debt due by
him. The agent of the bank formally required
him to take notice of the assignment, to which
he replied that he would, and that no written
notice was necessary. No further notice of
the assignment was given to the insurance
company. He subsequently became bankrupt,
and died. There was nothing on the face of
the policy to show where or through whom it
had been: effected. Held, that as there was
nothing to show that the insurance was a local
transaction, there was not sufficient notice of
the assignment of the policy, and the assignee
of the bankrupt was entitled to the money.

[INSURANCE.]

 

Policy. 409

Semble—That even if it were a local trans-
action, the notice to the agent would still
have been insufficient, as he was himself the
party assigning.—Jn re Hennessy, 5 I. E. R.
259; 1 Con. & L. 559. (C.)

4. A party having a life interest in property,
raised money by way of annuity charged upon
that property; effected an insurance on his
own life for the sum advanced, in the name
of the annuitant, and assigned it to him. He
subsequently obtained a further advance from
a third party upon an annuity charged upon
the same property, for the life of his brother,
who was entitled to a life interest in remain-
der in the property. The first annuitant was
paid off out of the money then advanced, and
the policy of insurance was re-assigned to the
grantor. He assigned it to the second annui-
tant as a security for the principal sum ad-
vanced. Subsequently he and his brother
granted to the second annuitant a larger
annuity, in lieu of the preceding, charged
upon the same property, for their lives and
the life of the survivor, redeemable on giving
six months’ notice. The second annuitant
afterwards sold this latter annuity, and as-
signed the policy to the purchaser, who
kept it up at his own expense. The life on
which the policy was effected dropped, and
the purchaser received the money. The an-
nuity being in arrear, a bill was filed by the
purchaser to raise the arrears. Held, that the
surviving grantor was not entitled to credit
for the amount of the policy against the
arrears of the annuity.—JMilliken v. Kidd, 5 I.
E. R. 396; 2 Con. & L. 442. (C.)

5. An assignment of a policy to A. con-
tained no declaration that A.’s receipt should
be a sufficient discharge to the office. Held,
no reason for refusing to pay A.’s executor.—
Glynn v. Locke, 51. E. R. 61; 3 Dr. & War.
294; 2Con.& L. 21. (C.)

6. B., for £2275, assigned to A. an annuity
upon B.’s life, and covenanted to pay it. The
annuity was charged upon lands. The deed
empowered B. to revoke the assignment upon
repayment of the £2275, and discharge of all
arrears of the anuuity, “and all proportion
of such annual and increased premiums as
after mentioned, to be paid by A. to the Hope
Assurance Company, if any, shall be so paid:”
provided that whereas A. had assured or
agreed to assure B.’s life for £2275, the annual
premium for which was payable in advance at
the beginning of each year, it was agreed that
if such redemption should happen at any
time after the premium for the then current
year should have been paid, B. would repay
to A. at the time of such redemption the full
proportion of such premium which should
belong to such part of the current year as
should be then unexpired, whether B. should
require the policy to be assigned to her or
not. B. covenanted to repay A. all extraor-
dinary expenses of insurance occasioned by
her going beyond Europe. A. effected on B.’s
life an insurance for £2275. Held, that, upon
repurchase of the annuity, A. was entitled to

52
410

an assignment of the policy—Williams v.
Atkyns, 2 Jon. & L. 603. (C.)

1. A., tenant for life, granted an annuity to
B., for B.’s life, in consideration of £500. A
policy of insurance on A.’s life was assigned
absolutely to B., in order the more effectually
to secure the payment of the annuity and the
repayment of the £500. It was agreed that
as soon as A. should give unexceptionable se-
curity for the annuity it should be decreased
by the amount of the annual premium of the
policy which was to be paid by B. out of the
annuity until such security should be given.
No other security was given for the annuity,
and the premiums were paid by B. until her
death. Held, that the representatives of B.
were entitled to the policy, although several
annual premiums had been paid by A. after
the death of B.— Kavanagh v. Waldron, 9 I. E.
R. 279; 3 Jon. & L. 214. (C.)

2. A., for an expressed consideration of
£144, by deed absolute in its form, assigned
to B. a life policy of assurance for £999. The
deed did not contain any clause authorising B.
to sue upon the policy (which was of doubtful
validity) in A.’s name. Contemporaneously
with the assignment, A. executed to B. a
bond, conditioned for payment of £144, with
interest. The actual consideration of the
assignment and bond was the £144, and con-
sisted partly of a prior debt due by A. to B.
in respect of bills of exchange discounted for
A. by B., nearly amounting to £119, and the
residue consisted of £25 cash, of which £20
were paid by B. to A., and the remaining £5
were retained by B., and handed by him in
payment of the costs of the assignment and
bond to the person who prepared them. From
the time of the assignment B. paid the pre-
miums on the policy into a savings bank, with
notice thereof to the company, who had re-
fused to receive them when tendered by B.
On the death of the insured, B., with A.’s
consent, sued the company in A.’s name, and
eventually compromised the action on pay-
ment of £600 to himself (B.) Held, on a bill
filed by A. against B., that the assignment
operated by way of mortgage, and not abso-
lutely ; and that, therefore, A. was entitled to
an account in respect of the proceeds, but
that B. should have his costs as in an ordinary
redemption suit, and also the costs of the pro-
ceedings against the company.—Murphy v.
Taylor, 11. C. R. 92; 31. Jur. 85. (C.)

II. Wuart may Be Insurep: WHo may
Insure.

3. One of the conditions annexed to a policy
was that the “insurer should have an interest
in the life of the insured.” Held, that the
procuring a person to effect an insurance on
his own life, and then assign to another, who
had no interest in the life of the insured, was
an evasion of that condition.—Scott v. Roose,
Long. & T. 59; 31. E.R. 170. (E.E.)

[INSURANCE

 

INTEREST. ]

INTENTION.
See Cuaniry, II.

 

INTEREST.

— When an Interest is given. See Power, I.
— Contingent.

— Proof for.

See Banxrurtcy, XIII.

 

INTEREST PECUNIARY.

See Annuity, V—Banxrvurptcey, IX, XII—
Morteace, III, [X—Srrrremenr, I—
Venpor anp Purcuaser, [{]—Lus1-
TATION OF ACTIONS.

[See 58 G.3,¢. 938; 3G. 4, 0.47; 13 & 14

Vic., c. 56; 17 & 18 Vie. c. 90.)

I. On wuat DEMANDS IT IS PAID—TO AND

BY WHOM.

1. Generally.

2. When Executors, Administrators, Trus-
tees, Guardians, Remaindermen, Te-
nants for life, and Companies are
concerned.

. On Debts, Annuities, and the like.

. Respecting Debts and Assignees in

Bankruptcy.

. As between Principal and Agent.

In Cases of Recetvers.

On Legacies.

. As respects Vendor and Purchaser.

. Portions.

CONIA PO

 

II. Av WHAT RATE.

Il. Waen Given or DISALLOWED BEYOND
Penatty oF Bonp or PRINCIPAL
Deer.

IV. Interest, Comrounp—GENERALLY AND
By AGREEMENT.

V. How Far BACK IT WILL BE GIVEN.

VI. WuEN GIVEN UNDER DECREE, &¢., THOUGH
NOT THEREBY PROVIDED FOR.

 

I. On wHat DEMANDS IT IS PAID: TO AND
BY WHOM.

1. Generally.

2. When Exccutors, Administrators, Trus-
Trustees, Guardians, Remaindermen,
Tenants for Life, and Companies are
concerned.

. On Debts, Annuities, and the like.

. Respecting Debts and Assignees in
Bankruptcy.

As between Principal and Agent.

. In Cases of Receivers.

On Legacies. .

. As respects Vendor and Purchaser.

. Portions.

WDAIRM woo

I. 1. Interest generally: on what Demands it is
paid: to and by whom.

4, V., bequeathed one-half of the property
he left to his executrix, to be disposed of at
her death to his nearest relation in law, pro-
vided that he or she professed the established
religion. V. appointed C., his widow, execu-
trix, and residuarylegatee; and bequeathed all
[INTEREST GENERALLY.]

his worldly substance of what kind or nature
soever to C. for her own use, except such part
as had previously been devised. At V.’s death,
the chief part of his property consisted of two
annuities, and two policies effected by V. on
the lives of the c. g. vies named in the annuity
deeds. C. regularly received the annuities ;
paid the premiums, and, when the respective
lives dropped, received the sums due on the
policies. After C.’s death, V.’s nearest rela-
tion in law, a professing Protestant, filed a bill
to recover the moiety of the property so be-
queathed. Held, that C. having been a specific
legatee of the annuities, which were freeholds,
was not bound to have kept up the insurances ;
but that, having done so, C.’s representative
was entitled to be repaid, out of ptf.’s share of
the insurance, a moiety of the insurances,
with interest; and since ptf.’s moiety of the
insured sums was thereby exhausted, the bill
should be dismissed, and with costs, because
of the plf.’s conduct in the cause—Money v.
Gibbs, 1 Dr. & Wal. 394. (C.)

1. In a petition matter under the 5&6 W.
4, v. 55, the Remembrancer reported that a
sum exceeding the principal, and six years’
interest, was due on foot of the judgment.
Afterwards the receiver made payments to
the petitioner, whereby the balance was re-
duced below the principal. Petitioner moved
for payment of the sum reported due, with
interest from the date of those payments.
Respt. at same time moved that the report be
sent back to be reviewed, and that petitioner
be disallowed all interest (beyond six years
prior to filing the petition) due on foot of the
principal secured by the judgment. Held,
that respt.’s motion should be refused with
costs; and that the petitioner’s application
for payment of the residue of the sum re-
ported due should be granted, but that the
application for interest should be refused.—
Keogh v. Waring, 51. E. R. 487. (E.E.)

2. The mere laches of a mortgagor to enforce
payment of the interest from the tenant for
life of the equity of redemption, will not pre-
judice his right to raise it out of the inheri-
tance.—Wrizon v. Vize,2 Dr. & War. 192; 1
Con. & L. 298; 51. E.R. 173. (C.)

3. It appears to be the established rule,
that if a man has power to charge lands with
money, not exceeding a specified sum, he may
charge it with that sum, and interest.—Simp-
son v. O'Sullivan, 3 Dr. & War. 458. (C.)

4. Upon a petition under a decree, premises
were allotted to deft., who was awarded to pay
ptf. a sum for owelty of partition. Held, that
ptf. was entitled to interest on that sum, from
the confirmation of the return until paid ; the
defts. being entitled to the rents from that
period.— Stewart v. Ferguson, 5 I. E. R. 157.
(E.E.)

5. If the cireumstances of the gift are such
that it will of itself carry interest, it is imma-
terial whether the testator be silent upon the
subject of interest, or generally directs pay-

 

411

ment of interest—Purcell v. P., 4 I. E. R.
558; 2 Dr. & War. 217; 1 Con. & L. 3871.

C.)

6. A., principal, and B., surety, joined in
granting an annuity for C.’slife. A. assigned
to trustees a policy upon his own life, upon:
trust to permit C., after A.’s death, out of the
money insured, or the interest thereof, to re-
ceive the annuity. A. and B. executed their
joint and several bond, conditioned to secure
punctual payment of the annuity. A.’s exe-
cutors received the amount of the policy, and
invested it in government securities. B.’s exe-
cutor was compelled to pay C. an arrear of the
annuity. Held, that as against A.’s general
assets, B.’s executor was not entitled to in-
terest on the money so paid by him; but was
entitled, as against the sum insured, and the
interest thereon, to be put in the same situa-
tion as if it had been duly applied in payment
of the annuity, and therefore to be repaid
thereout the money advanced by him, with
interest.— Caulfield v. Maguire, 8 I. E. R. 164;
2Jon.&L.141. (C.)

7. Arevivor against the heir of the conuzor
of a judgment and the terre-tenants of one
estate, of which he has been seized, does not
keep the judgment from being barred by the
Statute of Limitations, as regards the owners
of another estate which had been previously
sold by the conuzor.

Martin v. M‘Causland, 3 I. L. R. 113, is not
law.

A judgment was assigned to a trustee for
the benefit of the tenants for life, in possession
of the lands charged with it; who in 1817
caused the trustees to declare a trust for the
daughter of one of them, with provisoes that
no proceedings should be taken on the judg-
ment until the latter attained age or married,
and that it should not be called in until the
other tenant for life died. Held that, up to
1817, the same person being the hand to pay
and receive the interest, amounted to a pay-
ment of it, so as to prevent the Statute of
Limitations applying, but that it began to
run in 1817.

The case of executors Cummins v. Finn, de-
ciding that a judgment being held in trust for
the person in possession of the lands charged,
may be replied as a retainer of the interest,
in answer to a plea of the Statute of Limita-
tions at law, cited and approved of.

A charge to pay interest on a judgment
made on other property, by an owner of lands
liable to the judgment, is not sufficient to
prevent the Statute running in favour of the
owner of other lands originally charged with
it; and though the payment of interest by
the one owner, before 20 years elapse, would
keep it alive against the other—Quere, If a
payment after the twenty years will set it up.
again?

The question on an objection to title rest-
ing on an old incumbrance is, whether it may
be binding on the purchaser? and therefore a
purchaser was discharged in consequence of
judgments more than 60 years old, against a
former owner of the estate, which were in force
412 Rights of

against other lands, though the only matter
to keep them out of the Statute of Limita-
tions against the purchaser was doubtful evi-
dence of payment of interest 19 years before
they would have been barred.—Kirkwood v.
Lloyd, 12 I. E. R. 585. (C.)—[Varying the
Rolls order, 11 I. E. R. 561.)

 

I. 2. When Executors, Administrators, Trustees,
Guardians, Remaindermen, Tenants for
Life, and Companies are concerned.

1. On a bill filed for an account on foot of
partnership transactions, one partner (a deft.)
was decreed to pay the interest upon the
amount of the ptf.’s share until paid, at the
rate of £5 per cent.—Hutcheson v. Smith, 5 I.
E.R. 117. (E£.E.)

2. A., entitled to real and personal estate,
for the administration of which, under his
father’s will, a suit was pending, made his
will, and devised his real estates to trustees
for a term, upon trusts, one of which was, in
case of a deficiency of his personal estate to
pay his legacies, to raise, after the decease of
his wife, such sums as should be sufficient to
discharge the legacies for the discharge of
which his personal estate should be insuffi-
cient ; and, subject thereto, devised the estates
to his first and other sons in tail; in default
of issue, to his wife for life; remainder to E.
for life ; remainder to his first and other sons
in tail. <A. died without issue. His wife
entered into possession of the estates. The
personal estate was deficient. Various sums
were paid under different orders out of the
personal estate, partly in discharge of interest.
E. being dead, a suit was instituted by his son,
the first tenant in tail. Held, that the wife,
tenant for life, must bear the interest payable
on the amount by which the personal estate
was deficient, to be ascertained either within
a reasonable time after the decease, or by the
result of the entire account; and that this
should extend to the past as wellas the future.

The personal estate being brought in gradu-
ally and in sums composed of principal and
interest, whatever parts of it consisted of in-
terest should go in ease of the life estate to
pay interest; and what consisted of capital
sums in ease of the inheritance to pay the
capital of the legacies.

Principles of the Court when dealing be-
tween a tenant for life and remainderman in
apportioning charges; in giving the former
the benefit of property not realised in his life-
time, and providing for the latter so as to
secure the entire of the property intended for
him.— Coote v. Miltown, 7 I. E. R. 391; 1 Jon?
& L. 501. (C.)

38. Sub-tenants under leases with ¢. g. cove-
nants are chargeable with interest on their
contributions to the renewal fines from the
time when they ought to have paid them,
though the tenant had not then obtained a
renewal.—Molony v. Scollard, 121. E. R. 93. (R.)

4. Where the tenant for life of lands sub-
ject to incumbrances, permits arrears of in-
terest on those incumbrances to accumulate,

[INTEREST.}

 

Executors, §c.

the remainderman may, after the decease of
the tenant for life, claim as a debt against
his assets the amount of interest with which
the inheritance was burdened by the default
of the tenant for life-——Baldwin v. B., 61. C.
R. 156. (C.)

5. A fund secured by mortgage was by mar-
riage settlement, made in 1827, transferred
upon trust to permit the husband to receive
the interest of the sum, whether it should con-
tinue invested and secured as it was then, or
should be invested in any other security, for
life ; and after his decease upon other trusts ;
with a power to invest the fund in the public
funds or real securities, so that the same,
with the interest, dividends, &c., should con-
tinue and be applied to the same uses, trusts,
and purposes. The mortgage having been
paid off and the money vested in £34 per
cent. stock— Held, that the representative of
the husband, who died in August, was not
entitled to any part of the dividends due in
the following October.— O’Brien v. Fitz Gerald,
11 C.R. 290. (R.)

6. The executor of a trustee having been
ordered to invest a sum in stock, to the credit
of a cause, and having neglected to do so for
two years, during which the funds fell—Held
(affirming the Master’s order), that he was
bound to pay the price of the sum in stock
on the day on which he was ordered to invest’
it, with interest, at £33 per cent. only, from
that day.—Geraghty v. G., 3 I. C. R. 414; 6
I. Jur. 335. (R.)

7. P., by will, executed in Bath, in 1818,
gave £1000, in trust, to be placed out at in-
terest of £5 or £6 per cent., and the interest
paid to M. for life; remainder to M.’s daugh-
ters. In 1823, P.’s executors invested £1000
Irish in government stock, to meet the legacy.
M. received the dividends on the stock, with-
out complaint, up to 1854. Held, that, ad-
mitting the devise to be of £1000 British, the
personal representative of M. had no right to
charge the representatives of P.’s executors
with the difference between the dividends paid
and the dividends on £1000 British, invested
in stock or invested at £5 or £6 per cent.—
Hamilton v. H., 71. C. R. 516; Dr. Rep. temp.
Napier, 217. (C.)

8. A. bequeathed all the interest arising
out of what money he had in any banks.
Held, that a bonus, or extraordinary dividend
on the shares of the capital stock of a Joint-
stock Bank, paid in addition to the usual half-
yearly dividend, and out of the net annual
profits of the bank for the year, was not an
accretion to the capital; and passed under
ae y. Craig, 81. C. R. 142.
R.

9. Executors, in passing their residuary
account, erroneously stated the degrees of
relationship of the legatees to the testator,
consequently a large sum was paid to the
Crown for legacy duty in excess of that pro-
perly chargeable,
On Debts,

The liability for the principal being ad-
mitted—Held, that the executors were also
chargeable with interest.

The executors by their answer submitted
that they were not liable for interest. The
decree at the first hearing was silent upon the
subject. Held, that the charge for interest
could properly be made on further directions.
Shaw v. Turbett, 18 I. C. R. 324. (C.)—[Affd.,
141. C. R. 476; 81. Jur.N.8.1. (C.A.)]

 

I. 3. Interest on Debts, Annuities, and the like.

1. The Court will not allow interest on a
judgment obtained upon bills of exchange,
when ptf. seeks his remedy by petition for a
receiver under the 5 & 6 W. 4, c. 55.—Southeys
vy. Bateman, 21, E. R.361. (H,E.)

2. Quere—Touching the right to interest on
untaxed costs from the date of a mortgage
given for them.—Lawless v. Mansfield, 4 I. E.
BR. 113; 1 Dr.& War. 557. (C.)

3. Interest on the arrears of an annuity is
not generally recoverable ; but a trust or co-
venant to indemnify the annuitant and the
annuity from incumbrances, will entitle the
annuitant to interest when he has suffered
loss by reason of prior incumbrancers receiv-
ing the rents, or by collusion permitting the
grantor of the annuity to receive them.

A covenant to pay the annuity will not
make interest recoverable.—Martyn v. Blake,
3 Dr. & War. 125; 2 Con. & L. 65; 51. E.R.
72, (C.)

4. By settlement of 1808, made upon the
marriage of A., chattel premises were con-
veyed to trustees for the use of A. for life ;
from and after his death, subject to a jointure,
to the use of the issue ; for want of such issue,
to the use of A. forever. A power was given
to A. “that he should be at liberty to raise by
deed, mortgage, or any other writing, £1000,
to be applied to any purpose A. pleased, if the
marriage shall take effect; but the £1000 is
not to be raised by way of sale of the lands.”
A., having become indebted to H. in £1500,
assigned his life estate to H. by way of mort-
gage; and for the purpose of more effectually
securing the payment of the £1500, he, by
virtue of the power in the settlement, granted
and appointed by way of mortgage the £1000.
In 1817 A. became bankrupt. Under the order
made in the bankruptcy matter, all the estate
and interest of the assignee, and also of H.,
were purchased byS. the plaintiff, and assigned
to him by deed of Oct. 1818. A. subsequently
died. Ona bill filed by plaintiff to have the
benefit of this purchase—Held, on appeal, by
the Lords, that he was entitled to the £1000,
in addition to the life estate of the bankrupt.

The cause coming on on report of the Mas-
ter finding the amount due for principal and
interest—Held, that the settlement of 1808
authorised the charge of £1000 with interest,
although interest was not specified.— Simpson
v. O'Sullivan, 3 Dr. & War. 446. (C.)

CINTEREST.]

 

Annuities, Se. 413

5. Interest is not payable under the 3 & 4
Vic., c. 105, ss. 26, 27, upon a sum decreed to
be paid out of the produce of the sale of real
estate; and not personally by the defendant.
Lynch v. Skerrett, 51. E.R. 494. CH.E.)

6. More than six years’ arrears of interest
are not recoverable upon a judgment, it being
within the meaning of the 3 & 4 W. 4, c. 27,
s. 42, a “sum of money charged upon, or pay-
able out of land.”—-Henry v. Smith, 4. I. KE. R.
502; 2 Dr. & War. 881; 1 Con. & L. 506. (C.)

7. The general practice of Courts of Equity,
in taking accounts between a judgment credi-
tor and his debtor, applies to a case in which
the creditor avails himself of the remedy given
by the 4&5 W.4,c¢.55. Therefore in sucha
case this Court will not allow a judgment
creditor to receive interest again on his prin-
cipal by part payments, after the principal
and interest secured by the bond have once
amounted to the penal sum for which the
judgment was recovered.—Upton v. U., 61.
E.R. 471. (R.)

8. A judgment having been entered on a
bond executed by two sureties for a land
agent—Held, that interest on the balance due
by him could not be claimed under the 3 & 4
Vic., ¢. 105, s. 26.—Lord Templeton v. Murdock,
71. E.R. 470. (C.)

9. A judgment carries interest under sta-
tute 3 & 4 Vic., c. 105, s. 36, even as against
creditors whose charges are prior to the pas-
sing of that Act.—Carroll v. Darcy, 101. E.
R. 321. (C.)

10. Interest on judgments was paid by those
entitled to the lands of -A. until 1805, when
the judgments were assigned to a trustee
for B. and M., who were tenants for life of
A. No interest was actually paid from 1805
to 1837, when the judgments were again
assigned, and interest paid on them until 1841.
Held, that B. and M., being the parties bound
to pay the interest, and also beneficially en-
titled to it, there was in contemplation of
equity a payment of interest from 1805 to
1837, which saved the bar of the statute as
against the lands of X.—Kirkwood v. Lloyd,
111. E.R. 561. (R.)—[Varied on appeal, 12
I. E. R. 585. (C.)]

11. When in consideration of £200, an an-
nuity of £25 was granted out of premises held
for a term of years, during which that £200
and legal interest might be more than re-
paid by receipt of the annuity; and the deed
contained a clause empowering the grantor to
re-purchase the annuity on payment to the
grantee of £200, and the arrears of the an-
nuity—Semble, that such a transaction was
not usurious.

Semble—That the decisionin Kenny v. Lynch,
9 I. E. R. 530, cannot be upheld.— Wade v.
Williamson, 2 1. C. R. 299. (C.)

12. A receiver had been appointed over the
estate of H. and extended to several causes
414 On Debts,

and matters. The different incumbrancers on
the estate came to an arrangement between
themselves that the funds collected by the re-
ceiver should be applied to keep down the
accruing interest and gales of annuities.
H. objected to this arrangement—Held, re-
versing the order at the Rolls, that H. hada
right to insist that the whole of the principal,
interest, and costs of the prior demands should
be paid off before the application of any por-
tion of the fund in liquidation of the puisne
charges.— Hutchins v. H., 4 I. C.R. 224. (C.)

1. There is no practice in Ireland at vari-
ance with the cases of Young v. Lord Water-
park, 13 Sim. 204, and Cox v. Doleman, 2 De
Gex, M‘N. & Gor. 592. Therefore, where a
sum is secured by aterm of years, the 42nd
sec. of the Statute of Limitations is not ap-
plicable, and more than six years’ interest may
be recovered.—In re Wyse, 4 I. C. R. 297.
(P.C.)

2. If deeds are deposited by way of equi-
table mortgage, to secure a simple contract
debt, the debt bears interest from the date of
the deposit, and by reason of it, though there
be no express contract that the demand should
bear interest.—[Ex parte Haigh, 11 Ves. 403,
considered. ]— Carey v. Doyne, 5 I. C. R. 104.
®.)

8. A. was seized in fee of X., and for life,
with remainder to his son in tail, of Y., sub-
ject to incumbrances. Bya private Act of
Parliament, passed in 1843, X. was vested in
a trustee, subject to the incumbrances affect-
ing it, and to judgments against A., which
were specified in a schedule to the Act, to
the use of A. for life, remainder to his son in
tail. Y. was vested in trust, to sell and pay
off incumbrances, and to pay the residue to
A. <A. was also seized in fee of Z., which
was not included in the private Act. A. con-
fessed a judgment in 1846, and died, having
allowed large arrears of interest to accrue on
the incumbrances on X. A portion of X. and
Z. were sold in the I. E. Court. X. was suffi-
cient to pay the arrears of interest. Held, re-
versing the decision of the Commissioners,
that the arrears of interest on the judgments
named in the schedule to the private Act
should be paid out of the produce of the sale
of X., so as to leave the produce of Z. to pay
the judgment of 1846.—Jn re Fox, 5 I. C.R.
541. (P.C.)

4. J., entitled to considerable real and per-
sonal property, and tenant for life of X., de-
vised all his real estates to the use of his
widow, C., for life, remainders over. He then
gave all his government stocks, and all other
his personal property, invested so as to be
productive, and bearing interest, upon trust
for the same uses as declared of his real
estates. After reciting that he claimed
charges and incumbrances affecting X., he
directed that out of the moneys to be realised
on foot of such incumbrances, the trustees
should invest so much as might be necessary,
in the purchase of the lands of M., which
were to be settled to the uses of his real

[INTEREST.]

 

Annuities, Se.

estates ; and further directed the residue of
the moneys to arise from or be realised out of
the said charges and incumbrances, or the
entire of same, if such purchase could not be
effected, to be invested in stock, to be held on
the same trusts as his other personal estate.
Some of the incumbrances on X. were ter-
minable annuities. The amount of the in-
cumbrances on X. was not raised for some
years after the death of J. Held, that C. was
not entitled to the interest of the charges on
X., which accrued due between the death of
J. and the realisation of those charges.—
Stopford v. Hodder, 61. C. R. 466; 3 I. Jur. -
N. 8. 147. (C.A.)

5. In 1812, a mortgage was executed by A.
and B. to C. In 1813 two judgments, and in
1815 a third judgment, were obtained by C.
against A. C. entered into possession of the
mortgaged lands in 1812, and continued in
possession until 1855. In a redemption suit
it was—Held, that the judgments were not, so
far as related to the question in this case, to
be considered as incorporated in the mortgage
so as to form one security, and, therefore, that
the rents received, or which might have been
received by C. were to be applied—first, in
payment of the interest and principal due on
the mortgage; secondly, in payment of the
interest and principal due on the two judg-
ments of 1813; thirdly, in payment of the
interest and principal due on the judgment of
1815.—Montgomery v. Donohoe, 5 1. C. R. 495;
21. Jur.N. 8. 91. (R.)—[Affd, 6 I. C. RB.
168; 21. Jur.N. 8.401. (C.)]

6. Trustees of policies of insurances filed a
bill to ascertain the rights of different claim-
ants of the proceeds of the policies. The in-
surance companies submitted to bring in the
amounts due upon the policies, which, on
account of the conflicting claims, had not
been paid. Held, that they were bound also
to pay interest on the sums assured; but were
allowed their costs.

Some of the respondents had filed a bill in
England for the purpose of enforcing their
claims on the firm. On their application they
were directed to stay proceedings in Eng-
land, and to have their costs in that suit in
the same priority with their demand in this
suit—French vy. R. E. Assurance Co., 6 I. C-
R. 523. (C.)—[On appeal it was Held, that
the companies ought not to be charged with
interest.—7 I. C. R. 523. (C.A.)]

7. Proviso in a mortgage, that, if the inte-
rest should be punctually paid, the principal
should not be called in before a certain date ;
but that, in case of default, the mortgagee
might enter, notwithstanding any subsequent
acceptance of interest. The first half-year’s
interest was not paid within the time limited.
The mortgagee being abroad, the interest was
forwarded upon his sending instructions as to
the mode of remittance. The next half-year’s
interest was liquidated in advance, by a bill
accepted by the mortgagor for the mortga-
gee’s convenience; and the mutual relations
of the parties were treated as subsisting un-
changed. Held, that there had been no de~-
By Receivers.

fault in the payment of the interest; and
that, if any default had been made, the sub-
sequent conduct of the mortgagee would have
amounted to a waiver of it.—ZJn re Taaffe’s
Estate, 14 I. C. R. 847; 9 I. Jur. N.S. 18.
(L.E.C.)

 

I. 4, Respecting Debts and Assignees in
Bankruptcy.

1. The assignee of a bankrupt is not charge-
able with penal interest for the detention in
his hands of moneys of the estate, if direction
was not given under the 49 G. 3, c. 121, ss. 3, 4,
and under the 122nd section of the 6 W. 4, c.
14, by the creditor or Commissioner, to lodge
such moneys in bank.—ZJn re Fahy, 31. E. R.
585. (B.)

 

I. 5. Interest as between Principal and Agent.

2, An agent had for several years stated
accounts with his principals, in which he was
not charged with interest on the balances in
his hands, ‘but in the last account settled pre-
vious to his discharge was debited with inte-
rest on several half-yearly balances. On his
discharge he furnished an account not charg-
ing himself with interest; but on a bill filed
to enforce payment of the balance then due,
interest was given on it.—Bateman v. M‘Elh-
gott, 71. E.R. 471. (C.)

 

I. 6. Interest in cases of Receivers.

8. The Court will not allow interest on a
judgment obtained upon bills of exchange,
when the plaintiff seeks his remedy by a peti-
tion for a receiver under the 5 & 6 W. 4, c. 55.
—Southeys v. Bateman, 21. E. R. 361. (E.E.)

4, A judgment obtained on a receiver's re-
cognizance does not bear interest under 3 & 4
Vic., c. 105, s. 26.—Feely v. Kilkenny, 10 I. E.
R. 423. (R.)

5. The proceeding by sci. fa. on a receiver’s
recognizance is an award of execution, and not
a judgment recovered, and does not bear in-
terest under 3 & 4 Vic., c. 105, s. 26.—Feely v.
Kilkenny, 10 I. E. R. 443. (C.)

6. Orders in lunacy, giving the receiver li-
berty to pay money, are not within the mean-
ing of the 27th section of 3 & 4 Vic., c. 105,
so as to bear interest—Hoops v. Lord Kingston,
11 I. E. R. 469. (C.)

 

I. 7. Interest on Legacies.

7. When provision was made by a testator
for his illegitimate daughter, by bequeathing
her a large sum of money, and she had no
other provision—Held, that she was entitled
to interest thereon for maintenance from tes-
tator’s death.— Russell v. Dickson, 1 Con. & L.
284; 2 Dr. & War. 183; 4 I. E. R. 339. (C.)

8. When a testator bequeathed legacies to
his daughters, payable with “interest,” with-
out specifying the rate—Held, the G. O. 204
(now No. 106), regulating the Court rate of

[INTEREST.}

 

On Legacies. 415

interest, applied, and that interest at the rate
of £5 per cent. was payable.—Purcell v. P., 1
Con. &.371; 2Dr.& War. 217; £1.E.R.558,(C.)

9. A testator, B., upon his marriage, cove-
nanted to settle property, so as to secure for
his wife a jointure of £400 per annum. This
covenant B. never performed, but directed
the trustees of his will to pay the interest of
£5000 to his wife for life, in addition to the
provisions made for her by the marriage arti-
cles; and that £1000 of that sum should be
paid to such person as his wife should by deed
or will appoint. Several other legacies were
bequeathed by B. The £1000 was paid to
the widow herself, but no portion of the in-
terest which accrued upon the balance of
£4000, in consequence of the widow’s claim
under the covenant in the marriage articles
having exhausted the whole fund properly
applicable for that purpose. Upon the wi-
dow’s death, her personal representative
claimed the arrears of interest out of the
corpus of the fund, which was insufficient to
pay all the legacies beqeathed by B. Held,
upon the true construction of the will, that
the interest was given to the wife in priority
to the other legacies, and that her personal
representative was entitled to be paid the
arrears.—Pepper v. Bloomfield. 3 Dr. & War.
499. (C.)

10. A testator directed a debt of £25,000 to
form part of his residuary estate; and be-
queathed that and all his other residuary
estate to his executor, on trust to raise and
collect it, and from time to time to invest it,
and pay the interest among legatees for their
lives, and on their deaths pay the principal to
other legatees. He afterwards joined in a
deed, which provided that no interest should
be payable on the £25,000 during his life;
postponed the payment of the principal to
three years after his death; agreed that the
principal and three years’ interest should be
payable then by instalments of £2000 a-year ;
and that if those instalments were punctually
paid, no more than the three years’ interest
should be payable. He afterwards, by a codi-
cil, declared that this arrangement should not
affect his will. Held, that the three years’ inte-
rest did not form part of the capital sum to be
invested ; but belonged to the legatees for life.

The testator as principal, and his son as a
surety (being successive tenants for life),
joined in granting an annuity, and as a col-
lateral security gave a joint and several bond
and warrant, conditioned that if the annuity
was in arrear, the annuitant might issue exe-
cution against the father during his life, and
after his death against the son. Both having
died, the son’s executor paid several gales of
the annuity. Held, that he could recover only
the principal sums so paid, and no interest
upon them, against the father’s assets. Buta
fund of the father’s having been originally as-
signed to secure the annuity, which became
part of his assets and produced interest, the
son’s executor was recouped to the full
amount of this fund, and interest.— Caulfield
vy. Maguire, 8 I.E. R. 164; 2 Jon. & L. 141. (C.)
416

1. A. devised his real estates to the use of
trustees for years, on trusts for his wife for
life, or dur. vid.; and after the decease or
second marriage of his wife, and subject as
aforesaid, and without prejudice to the same,
upon trust to raise out of the lands, by sale, &c.,
' for all or any part of the residue of the term
£3500, which he bequeathed to three persons;
and desired that the several sums might be
paid to the legatees respectively “as soon
after his decease as might be convenient ;”
and that in the meantime they should be paid
interest thereon at the rate of £5 for each
£100 by the year. Held, that the legatees
were not entitled to interest out of the wife’s
life estate, but that it was to be raised after
her decease or marriage out of the residue of
the term.—Pennefather v. Bury, 9 I. E. R. 586;
3 Jon. & L. 727. (C.)

2. A. devised lands to his sons, and left
legacies to his daughters, to be paid at
twenty-one, or marriage with consent, and if
any or either of them should at any time
thereafter intermarry with a Papist or person
professing the R. C. or Popish religion, or a
reputed Papist, he thereby revoked, annulled,
and made void the devises and bequests made
to such child or children; and left to each of
his children so offending one shilling, and de-
vised and bequeathed such child or children’s
devises or shares. Semble—The condition is
legal, and is not limited to the period of pay-
ment of the legacies, but extends to the whole
life of the daughters.

Held, that a daughter who married a R. C.
was entitled to the interest due before the
condition broken.—Duggan v. Kelly, 10 I. E.
R. 295. (R.)

3. X. devised lands with an ultimate re-
mainder to C. and D., and the survivor, for
their respective lives, as tenants in common.
He bequeathed to D. £1000, charged upon his
real and personal estate, to be distributed
by her among her younger children in such
shares as she should think proper. Proviso,
that if D. should under the foregoing testa-
mentary limitations get into possession of the
lands, then the £1000 should not be paid to
her for the aforesaid purpose. D. survived
X., but died without having so got into pos-
session. Held, that she took a vested interest
in the legacy at X.’s death, subject to be
divested when the contingency happened,
and accordingly that interest was payable
upon the legacy from X.’s decease.—Finucane
vy. Studdert, 11. C. R. 140; 31. Jur. 1i4. (C.)

4. A., who adopted his niece at the age of
three years, and maintained her as an inmate
of his family until his death, made the follow-
ing bequest:—“ I give, devise, and bequeath,
and hereby charge upon all my aforesaid
Jands and premises, to my niece D., the sum of
£3000 sterling, to be payable to her upon her
marriage with the consent of my wife H.; but
in case of her marrying without such consent
in the lifetime of my wife, the £3000 is to
merge in the inheritance, and J hereby charge
thereon, and give to her the sum of one shil-

[INTEREST ON LEGACIES.}

ling and no more. It is my wish and will
that my said niece D. should live and reside
at Q. with my wife.” Testator also be-
queathed to a brother and sister of D. an
annuity of £100 per annum, directing that it
should be payable out of certain lands and at
certain times. At the time of A.’s death D.
was nineteen years of age, and unmarried.
A petition having been presented by her to
enforce payment of interest upon the £3000
by way of maintenance—Held, that she was
not entitled to interest.— Bourke v. Kane, 7 I.
Jur. 169. (C.)

5. A deed of 1841 vested a fund in trust
for such of four persons as should be living
at the determination of life interests limited
to their father and mother. On the marriage
of A., one of the four, her father being still
alive, a settlement was executed which re-
cited an agreement that a share of £2700 and
the one-fourth share of the fund, and the in-
terest thereof, to which A. should become en-
titled, should be conveyed upon trusts, and by
which A. assigned to the trustees the share of
£2700, and all and every other sum or sums of
money or other property to which she might
thereafter become entitled, upon trusts as to
the share of £2700, and upon trust, after the
decease of A. and L., her intended husband,
to permit the children of the marriage to re-
ceive the interest of the share of £2700, and
every other sum or sums of money to which
A. might become thereafter entitled, in such
shares, &., as A. and L., or the survivor,
should appoint; in default of appointment
as to the principal, equally among the issue
of the marriage,; if but one child, for such
child only. It was agreed that the one-fourth
of the trust fund, or any other sum to which
A. might thereafter become entitled under
the settlement of 1841, should, when received
by its trustees, be paid by them to L. or his
assigns should A. be then living, and not
otherwise, the same to be for his sole use and
benefit. L. died leaving a son, a minor, and
his wife, A., surviving. A.’s father after-
wards died; whereupon the trust fund under
the deed of 1841-became divisible between A.
and her sister. Held, that L., having died
before A.’s father, did not take a vested inte-
rest in the principal of a moiety of the fund
‘under his marriage settlement. That A. was
entitled to the interest of it during her life.
That the minor son of L. was entitled to the
principal after her death.—Jnre Jager’s Trusts,
141.C.R. 155. (R.)

6. A gift or bequest of money, charged by
deed or will upon lands, though vested, will
not generally bear interest until it is raise-
able, unless something on the face of the deed
or will shows a contrary intention.

If such a gift or bequest be contingent, and
there is not an express gift or bequest of in-
terest, interest will not accrue or be payable
before the happening of the contingency on
which the principal is payable.

In 1853, V., by will, after giving his wife a
life annuity charged on his real and freehold

 

estates, bequeathed to his nephew £2000,
On Price,

which he charged thereon, with interest at
£5 per cent. from the death of V.’s mother;
and expressed his intention to be that the
£2000 should not be raised or carry interest
during her life, but should be a vested in-
terest in the nephew on his attaining age, but
not before. If the nephew attained age du-
ring her life, payment of the principal was to
be postponed till she died. If the nephew
died under age, the £2000 was not to be
raised or payable. Held, that the legacy was
contingent on the event of the nephew attain-
ing age; and that interest was not payable
thereon until he attained age— Gillman v. G.,
161.C. R. 461. (R.)

 

I. 8. On Purchase-money.

1. A purchaser from a bankrupt’s assignees
is entitled to receive interest upon his deposit,
whether the purchase be proceeded with or not.
—Re Page, 1 Dr. & Wal. 31. (C.)

2. On decree for specific performance of a
contract to purchase lands, the general rule is
that the purchase-money carries interest from
the day when the contract ought to have been
performed. But ina suit against an executor
to enforce specific perfurmance of a contract
by his testator to purchase lands, ptf. having
taken on consent a decree for specific perform-
ance, and a reference to take an account of
real and personal assests—ZLeld, that he was
entitled only to interest from the date of the
report, the executor having by his answer ad-
mitted assets, and the accounts having been
taken unnecessarily —Enraght v. Fitz Gerald, 2
I. E. RB. 87. (C.)

8. A purchaser who, on report of bad title,
has been discharged from his purchase, is en-
titled to interest on his one-fourth of the
purchase-money, from the date of its lodgment
until the lodgment of the residue.—Linehan v.
Cotter, 8 I. E. R. 104. (R.)

4. The purchaser lodged his promissory note
for £1500, the amount of the price, but was
afterwards allowed £288. 2s. 4d. compensation
for a rentcharge to which the estate was found
liable. Held, that he was upon his note
chargeable only with interest upon the differ-
ence.— Wilson v. Poe, 8 I. E. R. 189. (R.)—
[Sees.c.9 I. E. R114. (C.)]

5. Promissory note lodged by purchaser for
the price, will bear interest at £6 per cent.—
Anon, 81. E. R. 158. (R.)

6. A., a tenant of a renewable interest
under a bishop’s lease, subdemised to B., with
a toties quoties clause ; and in 1837 took a con-
veyance of the fee under the Church Tempo-
ralities Acts from the Eccl. Commissioners,
and executed a mortgage for the entire of the
purchase-money, with interest at £5 per cent.
B., having disputed the amount ascertained
as his contribution, an order of reference was
made, and a report obtained in 1846, Held,
that B. was bound to pay A. £5 per cent.
interest on his (B.’s) proportion of the pur-
chase-money from the date of the morgage to

[INTEREST.}

 

Portions, Sc. 417
that of the conveyance to be executed to B.
That the increased rent to which B. should
become liable, was to be paid only from the
date of the conveyance to him; but that his
rent under the existing lease, and all renewal
fines, should be paid by him up to that date.
The Court has jurisdiction to decide those
questions upon the case coming on ou the re-
port, though they were not referred to the Mas-
ter.—Brabazon v. Lord Lucan, 9 I. BH. BR, 441.
(R.)—[Revd. on the first point; ibid, 540. (C.)]

 

I. 9. Interest on Portions, and the like.

7. The 3 & 4 W. 4, c. 27, s. 42, applies to
portions charged ou lands under a power in a
settlement. Qnly six years’ interest thereon
is recoverable.—urne v. Robinson, 11. E. R.
333; 1 Dr. & Wal. 688. (C.)

8. By decds of settlement and appointment,
£15,000 was provided as portions for daugh-
ters, to bear interest from their father’s death.
By a re-settlement £6000 additional was pro-
vided for them, but no mention of interest on
this £6000 was made, though the same deed
expressly provided for payment vf interest
upon other sums thereby directed to be raised.
Held, that interest upon the £6000 was not
payable.—Clayton v. Gilengall, 1 Dr. & War. 1;
( Con. & L. 311. (C.)—[Affg. Fl. & BK. 511.

R)]

9. A testator, having under his marriage
settlement a power of appointment and distri-
bution over £5000, appuinted it by will, with
interest from his death; and gave £3000 ad-
ditional to be divided equally among his
children, “subject to the same limitations in
all respects as the sum of £5000.” Both sums
were charged on the same lands. eld, that
the £3000 was not tu bear interest.—Bredin v.
B.,1 Dr. & War. 494. (C.)

10. It is not necessary that there should be
express words directing payment of interest.
If the intention of the party creating the
charge, to give interest, be sufficiently ap-
parent, the Court will award it.— Purcell v. P.,
41. E. R. 558; 2 Dr. & War. 217; 1 Con. & L.
871. (C.)

11. Lands were conveyed by marriage settle-
ment for 999 years, upon trust, during so many
years of the term as A. should live, to pay the
rents to her, or as she should appoint; and sub-
ject to a charge of £10,000, to pay to H. for so
many years as he should live after the decease
of A.,anannuity of £1000; to pay the residue of
the rents as A. should by deed or will appoint.
The residue of the term after the decease of
A. and H., was limited in trust that if there
should be younger children of the marriage
the trustees should, by the sale or mortgage of
the residue of the term, and by the rents and
profits thereof in the meantime, and until such
sale, raise £15,000 for the portions of such
younger children; the portions to be paid to
sons at twenty-one, and to daughters at
twenty-one or marriage; and should, out of
the rents in the meantime, and until the por-
tions be payable, raise such yearly sums for

53
418 On Portions, se.

the maintenance and education of the younger
children as A. should deem meet, not exceed-
ing the interest of the respective portions, at
the rate of £5 per cent. Provided, that if any
of the children should die before his portion
should become payable, it should be divided
among the survivors. A. appointed, and died.
A bill having been filed to raise the principal
and interest of the £15,000, while H. was alive,
Held, that the Court had not any power under
the settlement to direct a sale of the term in
possession during the life of H.—[Affirmed ;
121. E.R. 298. (C.)]

That the Court could not sell so many years
of the term as should be unexpired at the
death of H., as the security of the prior
charges would thereby be impaired.

That interest was payable on the £15,000
from the death of A., and during the life of H.
—[Reversed; 12 I. E. R. 298. (C.)]—Lloyd
y. Massey, 11 I. E. R. 429. (R.)

After H.’s death, A.’s daughter (an ap-
pointee) and her husband instituted a suit to
raise the portion, with interest from the date
of their marriage, when it vested absolutely.
Held, that they were entitled to interest from
the date of its vesting —Lloyd v. Massy, 10 I.
C. R. 240; 5 I. Jur. N.S, 119. (C.A.)—
[Reversed; 10 H. Lds. Cas. 248.]

1. A. had power to charge real estates with
any sum, nor exceeding £20,000, for portions
for his younger children; that sum, or such
less sum as should be charged, to be vested in
and to be paid to, or to be shared between and
amongst, all and every such children or child,
or any one or more of them, exclusively of the
others or other of them, at such age or time,
or respective ages or times, or, if more than
one, in such proportions and upon such terms
and conditions, and in such manner, as he
should think proper, and should by deed or
will appoint. A. by his will, reciting the
power, charged £20,000 on the estate; and
bequeathed it, share and share alike, to his
four younger children. Held, that the shares
of the younger children vested on the death of
A. and bore interest from that time.

A testator directed that the rents, &c. of
property should be invested in the funds, and
kept there until his second son should come of
age; at which time the sums so invested
should be divided between his younger child-
ren. Held, that the shares in the accumulated
fund vested at his death.—Jn re Charleville, 13
I.C.R.6. (R.)

 

II. At wHAT RATE INTEREST SHALL BE PAID.

[By the 204th G. O. of Nov. 1834, and sub-
sequently by the 106th G. O. of 1848, the Court
rate of interest was fixed at £5 per cent.; and
on balances of receivers, executors, &e., at £6
per cent. ]

[By the 211th G. O. of Oct. 1867, the Court
rate of interest is fixed at £4 per cent., save
as to balances due by receivers, guardians,
sequestrators, executors, administrators, trus-
tees, on which the interest is to be £5 per cent. ]

2. The 204th Rule of 1834 does not take
away the discretion of the Court as to the rate

[INTEREST.]

 

Rate of.

of interest to be charged upon balances in the
hands of the executors, administrators, &¢.—
Cuffe v. C., 31. E. R. 469. (C.)

8. G. O. 204, regulating the Court rate of
interest, does not apply to a charge created
under a family settlement, there having been
for many years a course of dealing which,
with other circumstances, the Court thought
sufficient to enable it to imply a contract
between the successive owners of the estate
whereon the money was charged and_the
beneficiary. Ruttledge v. R. 1. Dr. & Wal.
243. (C.)

4, The 204th Rule does not take away the
Court’s discretion as to the rate of interest to
be charged upon balances in the hands of
executors, administrators, &e.—Cuffe v. C.,
3 LE. R. 469. (C.)

5. When the rate of interest is not specified
by the person creating the charge, the Court
will give interest at the rate allowed by the
106th G. O., namely £5 per cent.; and not at
the highest rate allowed by law, £6 per cent.
Pureell vy. P., 41. E. BR. 558; 2 Dr. & War. 217;
1 Con. & L. 871. (C.)

6. The Court rate of interest is £6 per cent.
in certain cases.—Croly v. Callaghan, 5 I.E. R.
2%. (EE) ~

7. Ona Dill filed for an account on foot of
the partnership transactions, one of the part-
ners (a defendant) was decreed to pay inter-
est upon the amount of the plaintiffs share
until paid, at the rate of £5 per cent.—Hut-
cheson v. Smith, 5 1. E. R.117. (E.E.)

8. The 106th G. O. is inapplicable to cases
where the rate of interest had been defined by
decree.—Baldwin v. Belcher, 6 I. E. R.428. (C.)

9. When there is no contract as to the rate
of interest to be paid, the Court rate of inter-
est must prevail, viz. £5 per cent.— Simpson
v. O'Sullivan, 3 Dr. & War, 459; Pepper v.
Bloomfield, 8 Dr. & War. 499. (C.)

10. G., seized of lands, borrowed sums of
money from §. On the occasion of each loan,
G. gave S. possession of a piece of land; and
a memorandum was executed, that S. should
hold the land rent free until the loan was re-
paid. Two of the memoranda provided that
G. should not pay interest for the loan while
S. retained the land. Held, that the transac-
tion amounted to a security upon land, within
the 2 & 3 Vic., c. 37, and that the annual value
of the land beyond legal interest should be
applied in reduction of the principal advanced
to G.—Gore v. Spotten, 71. C.R. 508. (C.)

11. Interest on renewal and septennial fines
is to be calculated at £5 per cent.—In re Ken-
nedy, 17 I. C. R. 162. (R.)

 
[INTEREST BEYOND PENALTY, &c.]

III. Wen Inrerest peyonp THE PENALTY
OF THE BonD, or THE PrincrpaL Dest,
WILL BE GIVEN OR DISALLOWED.

1. Interest beyond the penalty of a judg-
ment was claimed in a creditor’s suit, because
the conuzor had assigned his property in trust
to pay scheduled creditors, of whom the conu-
zee was one; because there had been, before
the arrear reached the penalty, « decree to
account, under which the creditor might have
been prevented suing at law ; because interest
might be recovered at law in an action of
debt on the judgment. The claim was disal-
lowed.— Elliot v. Tynte, Beat. Rep. 478. (C.)

2. A creditor by custodiam, on a judgment in
a penal sum, obtained an order for the ap-
 pointment of a receiver. Held, that he was
not entitled to interest beyond the penalty
which had accrued on the principal sum sub-
sequent to the appointment of the receiver.—
Barry v. Wilkinson, 3 I. E. R.121. (B.E.)—
[See observations on this case, ibid. 564.]

3. In w suit to administer assets, a bond
creditor went in under the decree, and proved

his demand. In April 1834, the Master in-
cluded it in his report under the decree. In
July 1835, there was a decree for a sale. In

1839, after the sum due on the bond had
reached the penalty, there was a part payment.
In 1841, the Master, reporting how the fund
then in Court should be allocated, reported
the demand on the bond, which he found to
be the balance after the part payment and
the interest on the principal sum remaining
due, from the date of the part payment to the
date of the report. Held, that the report was
incorrect; that the balance only should have
been found due; and that after the principal
and interest secured by a bond have once
amounted to the penalty, a part payment does
not entitle the creditor again to calculate in-
terest on the principal sum.—Grregg v. Glover,
51. E.R. 127; Fl. & K. 614. (R.)

4. In a petition matter under the 5 & 6
W. 4, c. 55, the Remembrancer reported that
a sum exceeding the principal money and six
years’ interest was due on foot of the judg-
ment. Subsequently the receiver made pay-
ments to the petitioner, whereby the sum
remaining due was reduced below the amount
of the principal money. The petitioner moved
for payment of the residue of the sum re-
ported due to him, and for the interest on it
from the date of the payments made to him.
The respondent at the same time moved that
the report be sent back to be reviewed, and
that the petitioner be disallowed all interest
on foot of the principal sum secured by the
judgment, beyond six years’ interest prior to
the filing the petition. The Court refused the
cross-motion with costs, and granted the ori-
ginal application for payment of the residue
of the sum reported due, but refused the ap-
plication for the interest.—Keogh v. Waring,
51. E.R. 487. (E.E.)

5. The general practice of Courts of Equity
in taking accounts between a judgment credi-

 

419

tor and his debtor, applies to the case where
the creditor avails himself of the remedy given
by the 4 &5 W.4, c¢. 55; and therefore, in such
a case, this Court will not allow a judgment
creditor to receive interest again on his prin-
cipal, by reason of part payments, after the
principal and interest secured by the bond
have once amounted to the penal sum for
which the judgment was recovered.— Upton v.
U., 61. E.R. 471. (R.}—[See Pomeroy v. Pon-
sonby, 61. E. R. 475, and note 479. (R.)]

6. By the decree in the cause, the plaintiff
was declared entitled to £1100, principal and
interest on a judgment; with interest on the
principal sum of £700, from the date of the
report until paid. Held, entitled to the in-
terest up to the time of payment, though the
principal and interest paid exceeded the
penalty.— Wilson v. Poe, 8 I. E. R. 139. (R.)

7. By the decree, the plaintiff was declared
entitled to a sum for principal and interest on
a judgment, with interest on the principal
until paid. Held, that he was entitled to in-
terest beyond the penalty, the decree not
containing, as it should, a direction to limit the
interest to the penalty— Wilson v. Poe, 9 I. E.
R. 114.; 2Jon. & L. 765. (C.)

8. Declaration in a decree that a bond
should be paid with interest, from the 21st of
August 1828—Held, not sufficient to exclude
the general rule, that the interest should not
exceed the penalty.—FPurcell v. Blennerhassett,
101. E. R. 470. (C.)

9. A., seized of a fee-farm estate, confessed
a judgment to his landlord. After the prin-
cipal and interest had reached the penalty, the
conuzee, in 1804, served notice on the tenants
to pay him the rents until the judgment should
be paid off, under threat of legal proceedings.
The tenants paid the rents, with the assent of
the conuzor, to the conuzee, until 1809, when
he assigned the judgment to the defendant,
one of the tenants, who thenceforth received
the rents until the filing of the bill; and set
two houses, to which spirit licenses were an-
nexed, for sums of money not mentioned in
the leases, and at rents less than the houses
would otherwise have brought, and also ex-
pended money on improvements. Ona bill to
redeem by the representatives of the conuzor—
Held, that though no elegit was sued out, the
defendant was entitled to interest on the
principal sum after it had reached the penalty,
not denying the plaintiffs’ right, or setting up
the Statute of Limitations.

That the sums paid by the undertenants to
the defendant for the houses were to be con-
sidered as fines, though the advantages of the
licenses were taken into account.

That the rents should be applied first to the
reduction of the interest, and then of the
principal of the judgment debt, before being
applied to discharge the sum expended on
improvements.— Cloughley v. Jameson, 13 I. E.
R. 471. (C.)

10. A judgment was obtained in E. Term
420 Compound.

1810. An elegit was sued out, and there was a
finding on the inquisition in 1815. An eject-
ment was afterwards brought, and an habere
issued ; but the clegit creditor did not go into
possession, by reason as he alleged, of prior
incumbrancers. In 1822 a receiver was ap-
pointed (in the cause C. v. F.) by an annuity
creditor, over the lands extended. On the
2nd of March 1832, an order was made in C.
v. F. that the receiver should from time to
time pay a moiety of the rents to the judg-
ment creditor, and have credit for the same in
passing his accounts, without prejudice to
creditors applying as they might be advised.
The order was on consent, the judgment cre-
ditor having made no application for leave to
go into possession. On the 38rd March 1832,
£600 was paid by the recciver on foot of the
judgment, the sum due for principal and in-
terest then exceeding the penalty, A bill was
filed in 1834 on foot of the judgment, and the
receiver was extended; and the judgment
having been assigned, an order was made in
1838 for payment of a moiety of the rents to
the assignee, in execution of the order of the
2nd March 1832, and orders for payment of
sums in the receiver’s hands were made in
1846 and 1847. An order of reference having
been made to ascertain the sums due to the
parties and reported creditors in the causes—
Held, reversing the Master’s finding, that as
the judgment creditor of 1810 could not be
considered as an elegit creditor in possession,
and no equity was sought against him by the
other reported creditors, he was not entitled
to interest beyond the penalty of the judg-
ment.— Clarke v. Fisher, 21. C. R. 122. (R.)

 

IV. Interest, Comrpounp—GENERALLY AND
BY AGREEMENT.

[As to mode of charging interest on ac-
count of mortgagee in possession, &c., see
Certificate of Masters ; Gamble, C. O. 457.]

1. It is the settled practice of the Court in
taking accounts against mortgagees in posses-
sion, to make half-yearly rests; and not to
charge, against the mortgagee, interest on pay-
ments exceeding the interest due to him, re-
ceived at any intermediate periods, no matter
how frequently the payments are made.—
Graham v. Walker, 11 1. E.R. 415. (C.)

2. In taking accounts against executors, in-
terest charged on balances may be brought
into the account, and interest thereon charged.
—TIrwin v. Knox, 8 I. C. R. 503. (C.)

V. How Par Back INTEREST WILL BE GIVEN.

3. In 1825, a bill was filed to raise a younger
child’s portion. In 1829, the bill was amended
by making a party thereto B., who claimed,
under a charge under marriage articles of
1765, the amount of the charge, besides in-
terest thereon for 68 years. Held, that the
interest should be given only from the filing
of the bill—Peyton v. M‘Dermott, 1 Dr. & Wal.
198. (C.)

[INTEREST.]

 

Arrears of.

4. In 1798, a marriage settlement limited
lands in trust for A. the intended husband,
and B. the intended wife, and their survivor
for their respective lives; remainder to the
issue of the marriage; and also to C. (B.’s
daughter by a former marriage), in such shares
as that survivor should appoint. In 1819, A.,
the survivor, appointed a sum to C., and limi-
ted part of the lands to trustees, to receive
and levy by sale or mortgage that sum; and
directed that it should bear interest, and be
payable on C.’s marriage; provided that if that
marriage happened during A.’s life, that sum
should not be raised until twelve months after
A.’s death. C. and her husband, after A.’s
death, filed a bill against a son of A. and B.,
who had got into, and, since 1825, continued
in possession of the lands, and who disputed
the validity of the settlement of 1798. Held,
that ptf.’s demand came within the 3 & 4 W.
4, c. 27, s. 42, and that they were entitled to
six years’ interest only on their charge—
Burne v. Robinson, 1 Dr. & Wal. 688; 1 I. E.
R. 333. (C.)

5. Upon the true construction of the 3 & 4
W. 4, c. 27, s. 42, more than six years’ interest
cannot be charged upon land in respect of a
sum of money secured by judgment.— O'Kelly
y. Bodkin, 21. E. R. 361. (E.E.)

6. Where judgment has been entered on a
bond in a penalty conditioned for the payment
of a principal sum with interest, the 3&4 W. 4,
c. 27, s. 42, bars the recovery of all arrears of
interest thereon which have accrued due more
than six years next before the commencement
of a suit instituted after the 31st of December
1833, to enforce payment thereof out of lands
or rent.—Semble, That the Statute is a similar
bar to the recovery of the interest thereon, by
a proceeding against the person or personal
chattels of the debtor—O’Kelly v. Bodkin, 3
I. E.R. 390. (E.E.)—[Followed in Hutchins
v. Sullivan, 111. E. R. 448. (R.)]

7. More than six years’ arrears of interest
are not recoverable upon a judgment, it being
within the meaning of the 3&4 W.4, c. 27,
s. 42, u “sum of money charged upon or pay-
able out of land.” :

Semble—If the judgment creditor be plain-
tiff, or if the suit be a creditor’s suit, instituted
by the plaintiff on behalf of himself and all
other creditors, the six years will be counted
back from the filing of the bill. .

But when the suit was for the specific per-
formance of a contract to purchase the estate
of the judgment debtor, and the judgment
creditor had filed a charge therein—Held,
that the six-years should be counted back
from the time of filing the charge.—Henry v.
Smith, 4 I. E. R. 502; 2 Dr. & War. 381; 1
Con, & L. 506. (C.)

8. When lands were conveyed to w man,
subject to the payment of a sum of money,
which he covenanted to pay—Held, that not
more than six years’ arrears of interest on the
charge could be recovered out of the land,
[LINTEREST, ARREARS OF.]

notwithstanding the covenant. — Hughes v.
Kelly, 5 I. E. R. 286; 3 Dr. & War. 482; 2
Con. & L. 223. (C.)

1. When w suit has once been instituted
for the purpose of raising a sum of money
bearing interest, the Court has no jurisdiction
to withhold from the plaintiff the interest
which accrues after the filing of the bill, on
the ground of aches in the prosecution of the
suit, however gross.—Reilly v. Fitzgerald, 6 I.
E. R. 335; Dr. Rep. temp. Sneden, 122. (C.)

2. A tenant for life exercised a power
which he possessed under a settlement, of
charging the inheritance in favour of H., and
afterwards hecame bankrupt. §S. purchased
all the estate which had vested in the assignee,
and also H.’s charge. The bankrupt died.
Held, that as the person entitled to receive
the interest on the charge was also owner of
the life estate, which was the proper estate to
pay it, it should be considered to have been
paid during the life of the tenant for life;
and that after his death the owner of the
charge, S., was entitled to claim out of the
inheritance only the arrears of interest which
accrued since the death of the tenant for life.
Simpson v. O’ Sullivan, 3 Dr. & War. 459. (C.)

3. Semble—That the six years for which
interest or arrears of rent are recoverable by
sec. 42 of 3& 4 W. 4, c. 27, are to be counted
back, even in a creditor’s suit, from the time
of filing the charge of the creditor, not being
plaintiff— Montgomery vy. Southwell, 2 Con. &
L, 263; 3 Dr. & War. 171. (C.)

4. A. was seized in fee of four denomina-
tions of land over which B. had an equitable
charge in respect of an advance made by him
on a contract with A. to purchase the land.
The contract was broken off subsequently to
A.’s marriage, upon the occasion of which A.
conveyed two of those denominations to the
uses of the settlement, and the other two
upon trust that the trustees should, so soon as
A. required them in writing, raise by sale or
mortgage thereof a sufficient sum to pay off
the incumbrances affecting the lands, as set
out in an annexed schedule, with interest
thereon. B. was not a party to the deed,
though his incumbrance was scheduled. Held,
that he was not ac. g.¢. under the deed, so
as to be entitled to file a bill to carry the
trusts into execution; and that therefore the
case did not come within the 3 & 4 IW. 4, ¢.
27, s. 25 (even supposing that extended to the
provisions of sec. 42), and that B. was only
entitled to six years’ interest.

Quere—Whether sec. 26 creates an excep-
tion out of sec. 42 ?—Evans v. Bagwell, 2 Con.
& L612. (C.)

5. When a creditor, who had instituted an
administration suit, had obtained an order
for receiver in 1822, but it was not made abso-
Inte or acted upon until 1834, the Court di-
rected an inquiry to ascertain by whose default
the receiver had not been appointed; and
directed that if it should appear that it was

 

421

by the plaintiff’s default the receiver was not
appointed, and if he might through such ap-
pointment have kept down the interest on his
own demand, he should not now be entitled
to so much of the interest on his debt as
would have been paid by the receiver had he
been appointed as early as he might have
been.— Newby v. Drew, 71. E. R. 349; 1 Jon.
& L. 445. (C.)

6. A decree was pronounced to pay ptfs. a
sum, with costs. The costs do not bear in-
terest under the 3 & 4 Vic., c. 105, s. 27, from
the date of the decree, but from the date of
the certificate of taxation.—Lidwell v. L., 7 I.
E. R. 91.

7. A judgment creditor of a tenant in fee
in remainder, after an estate for life, is not
entitled to recover out of the lands arrears of
interest which accrued due during the tenancy
for Jife, and more than six years before the
commencement of the suit.— Vincent v. Going,
71. E.R. 463; 1 Jon. & L. 697. (C.)

8. Judgments of 1810 revived in 1845 and
1846, on sci. fa. sued out in October 1844, Bill
filed in 1823; and decrees in 1834, directing an
account of incumbrances and for a sale, in
1836. After an order of reference to allocate
the funds, the person entitled to the judgments
obtained leave to prove them, and make up a
separate report, on an affidavit stating that he
never was informed of the existence of the
suit or the decrees, or that one of the decrees
enabled the creditors to prove thereunder, un-
til verylately; and that he was not aware of the
scope and effect of the decree until a few days
before, when a copy was procured from the
Registrar’s office, by his solicitor. He filed a
charge in April 1846, and the Master reported
him entitled to interest amounting to the pe-
nalty of the judgments. On objections to the
report, the Court, following Berrington v. Evans
(1 Y. & C. Exch.), and O'Kelly v. Bodkin (3. I.
E. R. 390), Held, that the suit and decrees did
not save the bar of the Statute of Limitation
(8 & 4 W. 4, c. 27, s. 42), and—

That the “action or suit” by which the ar-
rears of interest “shall be recovered” under
sec. 42, was the charge filed in the cause and not
the sci. fa.; and therefore that the party was
entitled to six years’ interest from the filing
of the charge only.—Autchins v. Sullivan, 11 I.
E. R. 443. (R.)

9. In 1735, the lands of L. were mortgaged
to secure £600. In 1838, H. became tenant
for life of L. and other lands. In 1842, H.
took an assignment of the £600 mortgage, and
paid off considerable arrears of interest on it.
In 1848, H. died, having permitted arrears of
interest on other charges affecting L. and the
other lands to accrue due. The decree in this
cause, which was instituted after the death of
H., directed an account of the incumbrances
affecting L. and the other lands. Held, allow-
ing exceptions to the Master’s report, that the
arrears of interest paid off by H. were not
barred by the Statute of Limitations, and that
the remainderman could not set off the sums
paid by him in discharge of interest accrued
422 Arrears of.

due during the life of H., against the sum due
to H.’s representatives on foot of the £600
mortgage.

Quere—Whether interest, permitted by a
tenant for life to accumulate against the in-
heritance, can after his death be claimed as a
debt against his assets ?—Baldwin v. B., 4 1.
C.R. 501. (C.

1. When a tenant for life, of incumbered
land, has permitted arrears of interest to ac-
cumulate during the continuance of his life
estate, and dies leaving arrears of rent due to
him, the remainderman has not any lien upon
such arrears of rent; nor any right to require
them to be applied specifically, by the personal
representative of the tenant for life, in dis-
charge of the arrears of interest.— Dillon v. D.,
41.C. R. 102; 6 I. Jur. 157. (C.)

2. When lands are conveyed upon trust to
secure money and interest, and subject thereto
for A., his heirs and assigns, the owners of
the money are not precluded by the 3&4 W.
4, v. 27, s. 42, from recovering more than six
years’ interest.— Gyles v. G., 9 I. C. R. 185;
Dr. Rep. temp. Napier, 257. (C.)

3. In 1776, M. mortgaged the lands of A.,
B., and C., to F., for £8000. In 1790, X. pur-
chased B., with notice of the mortgage, and
bought up several incumbrances, amongst
others an elegit under which possession had
been taken of B.; and caused them to be as-
signed to a trustee, to protect B. In 1792, X.
purchased C., without notice of any prior in-
cumbrance. A receiver was obtained by F.
over A. in 1784, and was continued till now.
A petition for sale of all the mortgaged lands
having been filed in the I. E. Court, by the re-
presentative of F.; on areference to ascertain
the amount due on foot of the mortgage, it
was decided that the principal sum due,
together with 40 years’ interest thereon, ac-
cumulated by reason of the deficiency of the
rents of A. On appeal from that order—Held,
that the assignment of the elegit by which a
creditor had gone into possession to the
trustee for X., to protect his estate, constituted
such trustee a prior incumbrancer in posses-
sion, within the meaning of the saving clause
in the 3&4 W. 4, c.27. s.40; and that, there-
fore, more than six years’ interest was recover-
able.—Muskerry v. Putland, 5 I. Jur. N.S. 27.
(C.A.)

4. A. was seized in fee of estates called the
family estates, and tenant for life of devised
estates; remainder to B., his eldest son, in
tail, subject to large incumbrances affecting
, each estate. A.and B. agreed that all the
incumbrances should be paid by the sale of
C., a portion of the devised estate, which was
of sufficient value for the purpose; and that
the residue of the devised estate, and the
family estate, should be settled on A. for life,
remainder to B. for life, remainder over. Two
deeds were executed. One of them barred
the entail of the devised estate. It was con-
veyed to such uses as A. should appoint. By
the other deed A. conyeyed the family estate,

[INTEREST.]

 

Onder Decree.

and conveyed and appointed the devised estate
to such uses as A. and B. should jointly ap-
point ; in default of appointment, to the use
of trustees for 1000 years, to secure younger
children’s portions; and, subject thereto, to
the use of A. for life; remainder to B.
for life; remainder to the first and other
sons of B. in tail; remainder over. A.
covenanted with B. that he would sell C., a
portion of the devised estate, and would, out
of the rents received by him before sale, and
the money which should arise from the sale, pay
off all the charges and incumbrances affecting
both estates. A. misapplied the rents, and
suffered an arrear of interest of the incum-
brances of the family estate to accrue, in
consequence of which the price of C. was in-
sufficient to pay off the incumbrances and the
interest on them; and a portion of the family
estate was sold. Held, that B. had an equity
against A. to be recouped out of the rents of
the life estate which he derived under the
deed, to the extent of all the interest on the
incumbrances scheduled in the deed which
accrued after the date of it, and which were
levied by sale of any of the family estate in
consequence of the misapplication of the
rents by A.

That although A. was not bound before the
execution of the deed to pay the arrear of
interest then due on the family estate, such
arrear was, under the deed, to be paid out of
the rents and produce of the sale of C.

That the rents and the produce of the sale
of C. were also applicable to pay arrears due
on the devised estate.

That the equity of the petitioner to be re-
couped prevailed over the right of judgment
creditors of A., whose judgments were ob-
tained subsequently to the deed, and who had
appointed a receiver over his life estate.
Kilworth vy. Mountcashel, 12 I. C.R. 43. (R.)

 

VI. InTEREST, WHEN GIVEN OR REFUSED
UNDER DECREE.

5. By a decree of 1814 it was declared that
the consolidated sum for principal and in-
terest, upon foot of uw portion provided for
younger children by settlement, was well
charged upon the lands in the decree men-
tioned. The decree directed the interest to
be thenceforth calculated upon the consoli-
dated sum. Upon a bill filed by the plain-
tiff, in whom the charge had become vested,
the Court refused to give him the benefit of
the decree, unless he consented to waive his
claim to the interest on the consolidated sum.
—O’ Connell vy. Macnamara, 3 Dru. & War. 411.
(C.)

6. A bill was filed against A. and B., and
referred to the Master to ascertain the rights
of parties, and apportion the funds accord-
ingly. He reported that in 1819 there re-
mained due to plaintiffs in a previous cause,
on foot of the demand therein decreed to
them, a sum which, with post costs in said
cause, amounted to a specified sum; and
that, for payment thereof, with subsequent in-
terest, the funds mentioned in the decree in
the present cause, as then remaining in the
[INTERESTS IN PROPERTY.]

Bank of Ireland to the credit of the previous
cause, were applicable. Held, that the words
“subsequent interest” did not apply to post
costs.—In re Brownrigg’s Estate, 21. Jur. N.S.
363, (LE.C.)

1. Under a decree to account, against exe-
cutors, the Master charged them with funds
and with balances from time to time in their
hands ; but not with interest on the balances ;
and had given them credit for payments on
account of interest on legacies bequeathed
by their testator. By a subsequent decree it
was referred back to the Master to ascertain
the balances from time to time in the hands of
the executors; and charge them with interest
on those balances. Held, that the Master
was not merely to charge simple interest on
the balances before ascertained, but was to
take a new account of the balances; and for
that purpose to bring from time to time into
the account the interest on the balances, and
to apply such interest in discharge of the dis-
bursements made by the executors, before
any of such disbursements were to be deemed
as paid out of sums found due from them on
the previous balance.—Jrwin v. Knoz, 8 I. C.
R. 503. (C.)

 

INTERESTS IN PROPERTY, VESTED
OR CONTINGENT.

— See Banxrortcy, XII.

— As to Husband's power to dispose of Wife's
future Property. See Huspanpd anpD
WIFE.

I. GrnERALty.
I. Vestine or INTEREST PAYABLE OUT OF
Persona Estate.
1. Generally.
2. When Cif is immediate, and no time
ts appointed for payment.
3. When Gift is immediate, but payment
is postponed, definately or indefinitely.
a. When it will be vested.
b. When not vested.
4. When no immediate express Gift of
Legacy, distinct from time appointed
Sor its payment.
a. When it is contingent by reason
of the useof conditional words.
b. Whenvested because these words
were not used by the testator
in a conditional sense.

1. When given to a Trus-
tee, &c., for a party
to take at a particu-
lar time, and to be
managed and applied
Sor his maintenance
and benefit.

2. When the antermediate
interest is not given
Sor the use or benefit
of such party, but to
another person, @. &.,
during minority, life,
or until some parti-
cular purpose has been
fulfilled.

 

423

8. Exceptions to the gene-
ral rule—that the re-
mainder and the par-
ticular Interest or
Estate vest at the
same time upon the
testator’s intention,

ee

5. Of the vesting in interest and trans-
missibility of Contingent Executory
Bequests. .

6. Effect upon the vesting or devesting of
Legacies, when subject to a limitation
over on the happening of a particular
event.

a. When the Gift is immediate
with a limitation to “ sur-
vivors” upon the death of any
of the Legatees, &c., under
age, Sc.

When the event, on the happen-
ing of which the Legacy, §c.,
is given over, is so wmper-
Sectly conceived and expressed
as to render the testator’s intent
merely matter of conjecture ;
or it is impracticable to per-
form.

. When the limitation over is in

case of the death of the Lega-
tee, §c., generally.

e

a

d. When the limitation over is in
case the Legatee, §c., dies
unmarried, and without hav-
ing “ issue” or “ children.”

e. When the contingencies upon

which Legacies, §c., were
limited over were held not to
have happened so as to de-
vest the interest first given.
f. Construction of words “ payable”
&c., in reference to event in
troducing a limitation over of
Legacies, §c., e. g., if any of
the Legatees, §c., dies before
his share becomes payable, Sc.
7. Effect of powers of appointment on the
vesting or devesting of Legacies, §c.
Ill. Vestine or INTERESTS PAYABLE OUT OF
Reav Estate.

1. When the Gift is immediate, but pay-
ment is postponed till Legatee, &c.,
attains age.

2. When the payment is postponed, not in
regard to age, but to convenience of
person, or to the circumstances of the
estate charged.

IV. ConTINGENT AND VESTED RemaInpERs.

1. Definition, and several kinds of.

2. Nature of contingency upon which re-
mainder may be limited.

3. Estate necessary to support contingent
remainders.

4. Of the time when contingent remainders
should vest.

5. Properties of contingent remainders in
general.

V. ASSIGNMENT OF CONTINGENT INTERESTS
AND LIMITATIONS OF PERSONAL AND
Cuatrer Interests.
424 = Vesting of.

I. VestInG, GENERALLY.

1. By marriage articles £6000 were vested
in trust, after the death of H., the husband,
and the wife, fur the child or children of the
marriage (other than an only son or a son for
whom another provision was made), in such
shares, &c., and subject to such restrictions
and provisoes in respect of such of them as
should be females, to prevent their marrying
without consent, as H. should appoint, and in
default of appointment to such child or child-
ren equally; the share of a son to be paid at
twenty-one, and of a daughter at twenty-one
or marriage; in default of issue, save an only
son, then in trust for him; in default of issue
of the marriage, in trust for the executors or
administrators of H. H. died without making
any appointment. Held, that the younger
children took vested interests, and therefore,
that the share of a daughter who died under
twenty and unmarried was transmitted to her
personal representative and did not go to her
surviving sister.—Hynes v. Redington, 7 I. E.
R. 405; 1 Jon. & L. 589. (C.)

2. Testator bequeathed all his property to
be invested, and out of the proceeds to pay
his daughter E. £10,000 on her attaining age,
or day of marriage, if it occurred before she
should be twenty-one, provided it should be
had with the consent of her trustees, but not
otherwise; and directed the trustees to pay
out of the interest a sum for maintenance
until she should be twenty-one or married
with such consent, the surplus to be invested
and then paid to her. After similar bequests
to other daughters, he beyueathed all the resi-
due to his daughter E., and the others, share
and share alike; and if any of his daughters
died before her or their attaining age, and un-
married, then he directed that as well her pur-
tion as her share of the residue should go and
be divided share and share alike among the
survivors. By a codicil he directed that in
case any of his daughters should, before their
respective ages, intermarry without consent,
the interest only of such daughter’s portion,
or daughters’ portions should le paid to her
or them for life for her or their separate use,
and after her or their death the portion or
portions should go to all and every the child
or children of such daughter so marrying, to
be equally divided, and to be paid at twenty-
one or marriage, with interest from the mo-
ther’s death. E. married P. without consent,
and died under age, leaving a son, who died
under age and unmarried. J/eld, that the
gift of the £10,000 vested in E.’s son, and
passed to P. as his representative ; that the
marriage referred to in the bequest of the
residue meant, as in the preceding bequest, a
marriage with consent; that the portions re-
ferred to in the codicil did not include the re-
sidue, and that the share of it therefore vested
neither in E. or her son.— Hackett v. Lord Ox-
mantown, 12 I. E. R. 534. (C.)

3. A fund was assigned by marriage settle-
ment, upon trust after the death of A. to
transfer it and all the interest, &c., unto
and amongst all and every the child or child-

[INTERESTS IN PROPERTY.]

 

Generally.

ren of the marriage, or the issue of any such
child or children who might be then dead,
leaving issue, or to any one or more of such
children, or issue of such deceased children,
&e., at such age or ages, time or times, and
in such parts, shares or proportions, if more
than one, and with such maintenance in the
meantime, and under and subject to such
conditions, restrictions, charges and limita-
tions over (such limitations over being for
the benefit of some one of such children)
as A. by his will, &c., should appoint; in
default of appointment, to pay the fund
between all the children, if more than one, of
the marriage, and the issue of any children
who should be then dead, leaving issue ; if but
one, to such one child; the fund to be paid,
&c., to sons at twenty-one and to daughters at
twenty-one or marriage, if such ages or days
should not take place until after the decease
of A.; but if such should happen in his life,
then such payment should be postponed until
after his decease. A. by will appointed the
fund to the children of the marriage share and
share alike, ou their attaining twenty-one, or
marrying with consent ; and directed that the
interest should he, for their support and main-
tenance, given in trust to his wife, until the
boys entered professions or attained twenty-
one, anc the girls attained twenty-one or
married with consent, //ed, that the portions
were by the settlement vested in the children
before the period of payment.

That the provision in the will as to main-
tenance was of itself sufficient to vest the
portions.

The rules as to the vesting of portions and
legacies are the same.—Zn re Orme, 1 I. C. R.
175. (R.)

4. A. devised all his real estates to D.,
remainder to D.’s sons in strict settlement ; in
default of such issue male in D. to the use of
my nieces R. and F., and the survivor of them,
for their natural lives, as tenants in common
and not as joint tenants; and from their
decease, to the use of their first and every
other son and sons lawfully begotten, and the
heirs male of their respective bodies succes-
sively, in equal propurtiuns ; the elder of such
sons of each niece, and the heirs male cf their
bodies being always preferred, and to take
before the younger, and the heirs male of their
bodies ; for default of such issue male, then to
the daughters of R. and F.; for default of
such issue male or female, to the use of my
right heirs male for ever. Jleld, that R. and
F. took as tenants in common for life, with
remainder, as to the share of each, to her sons
in tail, with immediate remainder to her
daughters in tail—Conmee v. Tuaffe, 12 I. C.
R. 338; 61. Jur. N. S. 232. (C)—[Reversed;
10 H. Lds. Cas. 64; 71. Jur. N.S. 229.]

5. Under a bequest of the interest of a
fund to a person for life, “ and after his death
to divide the said sum, and any interest that
may be due thereon at his death, among all
his children equally; and if he leave but one
child, then to give the whole sum to such one
child,” the children take a vested interest in
Vesting

their respective shares, as tenants in common,
liable to be devested as to children dying in
the father’s lifetime, in favour of w single
child surviving him, should such an event
happen.

The {whole current of authority is, that a
gift to one for life, remainder among his
children, gives a vested interest.— Kimberley
v. Tew, 51. E. R.389; 4 Dr. & War. 139; 2 Con.
& L. 366. (C.)

1. V. gave legacies to his daughters, to be
paid on marriage, with interest from his death,
until paid. He directed that if any daughter
married a man who did not settle on her a
jointure of a gertain amount, the interest only
of the legacy should be paid to the husband
during his},life ; at his death, if the wife sur-
vived him, the principal to be paid to her; if
she died in his life, leaving children, the prin-
cipal to be paid to them; but if she left no
children, the principal to be paid to his son
and to his surviving daughters equally; the
shares of the latter to be paid at the same
time, and subject to the same restrictions as
their original shares. The residue of his
estate, “after payment of his legacies,” he
gave to his son. Two of the daughters died
unmarried— Held (affirming a decree of Lord
Plunket, C.), that the legacies to the daugh-
ters were vested.

It is perfectly well settled that, where a
legacy: is given in terms making it contingent
upon the legatees attaining a particular age,
if interest be given in the meantime, that
alone will be sufficient to make it vested.
Those cases establish the clear principle, that
the testator is to be considered in such a case
to have dispensed with the contingency by the
gift of interest, and to have made the legacy
vested. The reason (which is a very sound
one) is this, that the testator cannot have in-
tended the legacy to be contingent, because
interest is only in lieu of the payment of the
capital, and as a compensation for withhold-
ing it; and when the testator gave it, there-
fore, he must have considered that the legacy
would at some time be payable. If that beso,
it is quite clear that words importing contin-
gency do not operate, when the intention of
the testator appears to the contrary. Is there
anything, then, so peculiar in the contingency
of marriage that it is not to be liable to the
same rule?—[Sugden, C.] Vize v. Stoney, 4
IE. R. 64; 1 Dr. & War. 337. (C.)

 

II. Vestine or INTEREST PAYABLE OUT OF
PrErRsonaL Estate.

1. Generally. :
2. When Gin is immediate, and no time
for payment is appointed.
3. When Cist is immediate, but payment
is postponed, definitely or indefinitely.
a. When it will be vested.
b. When not vested.
4. When no immediate express Gift of
Legacy, distinct from time appointed
Sor its payment. :
a. When it is contingent because
conditional words are used.

[INTERESTS IN PROPERTY.]

 

Generally. 425

b. When vested because the testator
did not use the words in a
conditional sense.

1. When given to a Trus-
tee, &c., for a@ party
to take at a particu-
lar time, and to be
managed and applied
for his maintenance
and benefit.

2. When the intermediate
interest is not given
for that party's use
or benefit, but to an-
other person, e. g.,
during minority, life,
or until some parti-
cular purpose has been
fulfilled.

3. Exceptions to the gene-
ral rule—that the re-
mainder and the par-
ticular Interest or
Estate vest at the
same time upon the
testator’s intention,

ei

5. Of the vesting in interest and trans-
missibtlity of Contingent Executory
Bequests.

6. Effect upon the vesting or devesting of
Legacies, when subject to a limitation
over on the happening of a particular
event.

a. When the Gift is immediate,
with a limitation to “ sur-
vivors” upon the death of any
of the Legatees, éc., under

age, §c.

b. When the event, on the happen-
ing of which the Legacy, &c.,
is given over, is conceived
and expressed so imperfectly
as to render the testator’s intent
merely matter of conjecture ;
or it is impracticable to per-
form.

c. When the limitation over is in
case of the death of the Lega-

- tee, §., gered

d. When the limitation over is in
case the Legatee, &c., dies
unmarried, and without hav-
ing “issue” or “ children.”

. When the contingencies upon
which Legacies, &§c., are
Limited over were held not to
have happened so as to de-
vest the interest first given.

. Construction of words “payable,”
&c., with reference to event in-
troducing a limitation over of
Legacies, §c., e. g., of any of
the Legatees, §c., dies before
his share becomes payable, &c.

1. Effect of powers of appointment on the
vesting or devesting of Legacies, &c.

oO

Kh

 

II. 1. Vesting generally of Interest payable out
of personal Estate.

54
426 Gift of
Il. 2. When Gift is immediate, and no time is
ts appointed for payment.
3. When Gift is immediate. but payment is
postponed, definitely or indefinitely.
a. When it will be vested.
b. When not vested.

 

IL. 3. When a Gift is immediate, but payment is
postponed, definitely or indefinitely.
a. When it will be vested.

1, A bequeathed £1300 on trust to invest
it, and apply the annual produce for the
boarding and education of B., until he at-
tained age; then to pay him the principal
and unapplied interest; if the “said B. should
die before attaining age, and should die un-
married, and without lawful issue; or, being
of such age, and not having made any testa-
mentary disposition of the £1300,” then A.
bequeathed it over. B. attained age. Held,
that the legacy vested absolutely in B., and
that the bequest over was void.— Cunningham
v. C61. Jur. 261. (C.)

 

II. 3. b. When not vested.

4. When no immediate express Gift of Le-
gacy, distinct from time appointed for
its payment.

a. When it is contingent by reason of
the use of conditional words.

b. When vested, because these words
were not used by the testator in
a conditional sense.

1. When given to a Trustee,
&e., for a party to take
at a particular time,
and to be managed and
applied for his benefit.

2. When the intermediate
Interest is not given for
the use or benefit of that
party, but to another
person, e. g., during
minority, life, or until
some particular purpose
has been fulfilled.

3. Exceptions to the general
rule—that the remain-
der and the particular
Interest or E'state vest
at the same time upon
the Testator’s intention,

&e.

 

II. 4. a. When a Legacy is contingent by reason
of the use of conditional words.

2. By a will, prior to 1838, testator bequeath-
ed a sum to trustees to permit his daughter
to take the interest for life, and if she should
“leave any issue lawfully begotten” desired
that the principal might be disposed of among
her children as she should appoint, and for
want of appointment, equally; but “in case
of failure of issue” of his daughter, he directed
the fund to be paidto A..B.,C.,and D. Held,
that “ failure of issue” referred to issue living
at the daughter’s death, and the gift over was
valid.

[INTERESTS IN PROPERTY.]

 

Personalty.

Testator bequeathed a fund to trustees to
pay the interest to X. for life, and the princi-
pal among her issue; and in case of a failure
of issue (which was limited to those-living at
her death), directed that £500 of the trust
fund might be paid to A, £500 to B., £500 to
C., and £500 to D. A.and B. died in life-
time of X. Held, that their representatives
were entitled to their shares, X. having after-
wards died without leaving issue.—Hanan v.
Drew, 10 I. E. R. 383. (C.)

3. Devise of houses to executors, in trust to
receive the rents for the support, clothing,
maintenance and education of testator’s child-
ren until they should respective}y attain age
or marry, from and after which events, to A.,
B., and C., or such of them as shall be then
living. Held, that the devise to A., B., and C.
did not take effect in possession until after all
the children attained twenty-one or married.

Quere—Whether there was an intestacy as
to the surplus rents beyond what was neces-
sary for the maintenance and education of
the children during their minorities ?—Farran
v. Smith, 11 I. E. R. 254. (R.)

4. A., in pursuance of a power, appointed
by will £5000 amongst his five daughters, in
equal shares; and, reciting that he was posses-
sed of lands for a term of twenty-one years,
with a ¢. g. covenant for renewal, bequeathed
them, together with £1000, in trust to pay the
interest, proceeds, rents and profits to his
wife for life; and from her death, or in her
life, if she so directed, to raise by sale, mort-
gage, or otherwise, such a sum as, together
with the provision thereby made for them,
should make up to each of his five daughters
on marriage, if in the life of his wife. with her
consent, and unmarried at the time of her
death, then, upon their attaining age or being
married, £2000; and until payment of the
additional provision thus made for his daugh-
ters, directed the trustees, on the death of his
wife, to pay each daughter out of the rents of
the land and the interest of the £1000 so
much as, together with the interest of the
£1000, would produce £120 per annum; and
after the death of the wife, and payment of
the additional portions, to assign over the
residue to his son. The wife did not direct
the additional provision to be raised during
her life. Held, that a daughter who attained
twenty-one, but died in the life of the wife,
did not take a vested interest in the additional
provision.—In re Brabazon, 13 I. E. R. 156.

5. Lands were devised to D. and J. for
their lives, remainder over. By a codicil, the
testator, after revoking the remainders, de-
vised the lands after the death of D. and J.,
or either of them, to the use of his nephews
W. and H., and all and every the child and
children of W., begotten or to be begotten, to
be equally divided between them, as tenants
in common, and the respective heirs of their
bodies, lawfully issuing, with cross remainders
between them. W. had two children living at
D.’s death. Held, that they took as tenants
Gift of

in common with Wyand H., to the exclusion
of any children who should afterwards be
born to W.

When a devise to a class is not immediate ;
but is postponed to a particular period or to
a particular event, those only who answer the
description at that period, or on the happening
of that event, are entitled to take.—[ (Crone v.
O'Dell, 1 B. & B. 459, approved of.]—Jur-
ray v. M., 31. C. R. 120. (C.)

1. A fund was, by a post-nuptial settlement
in 1841, vested in trust for such of four per-
sons as should be living at the determination
of life interests, limited to their father and
mother. On the marriage of A., one of the
four, in 1844, her father being still living, a
settlement was executed, which recited an
agreement that a share of £2700, and the one-
fourth share of the fund, and the interest
thereof to which A. should become entitled,
should be conveyed upon trusts, and by which
A. assigned to the trustees the share of £2700,
and all and every other sum of money or other
property to which she might thereafter become
entitled, upon trusts as to the share of £2700 ;
and upon trust, after the decease of A. and of
L., her intended husband, to permit their
children to receive the interest of the share of
£2700, and every other sum of money to which
A. might become thereafter entitled, in such
shares, &c., as A. and L., or the survivor should
appoint; in default of appointment as to the
principal, equally among their issue; if but
one child, for such one child only. It was
agreed that the one-fourth of the trust fund,
or any other sum to which A. might thereafter
become entitled, under the settlement of 1841,
should, when received by the trustees of that
deed, be paid by them to L., or his assigns,
should A. be then living, and not otherwise ;
the: same to be for his sole use and benefit.
L, died, leaving a son, a minor, and his wife
A. surviving him. <A.’s father afterwards died,
whereupon the trust fund under the deed of
1841 became divisible between A. and her
sister. Held, that L. having died before A.’s
father, did not take a vested interest in the
principal of the moiety of the fund, under his
marriage settlement.

That A. was entitled to the interest of it
during life.

That the minor son of L.-was entitled to
the principal after her death.—Zn re Jager’s
Trusts, 14.1. C. R. 155. (R.)

2. I. having three unmarried daughters, A..,
L., and C., bequeathed to A. and L. £2000
each, and to C. £2500, to be invested for their
benefit, and there to remain until their day of
marriage; and if one or more of his daughters
died before her marriage, then the portion’of
her so dying should be divided between his
surviving daughters, share and share alike; if
only one survived, then to her. And if all his
daughters died before their marriage, then
their portions should be divided between all
his sons. J. had also three married daugh-
ters. C. married, and died in the life of A.,
who died unmarried, leaving L. surviving.

[INTERESTS IN PROPERTY.]

 

Personalty. 427

Held, that C.’s personal representative was
entitled to w moiety of A.’s share.—In re
Jackson’s Trusts, 14 I. C. R. 472. (C.A.)

3. V. bequeathed money to his two daugh-
ters, share and share alike, to be paid to them
by his executors in twelve months after their
respective marriages with the consent of his
executors, and directed that his daughters
should be paid a yearly sum less than the in-
terest of their shares until their respective
marriages as aforesaid, and that from their
respective marriages each of them should be
paid the full legal interest; until their respect-
ive marriages, the remainder of the interest
on their fortunes was directed to go to V.’s
son, and if V.’s daughters, or either of them,
died before age or day of marriage, her share
of the sum so bequeathed was directed to go
to V.’s son, to whom the entire should go if
both daughters died.

Semble—That the daughters’ legacies did
not vest until marriage.

Held, that “ or” should be read “ and,” and
that therefore the legacies did not go over to
the son on the death of his sisters unmarried,
but remained undisposed of by the will, and
divisible amongst V.’s next-of-kin. — In re
Cantillons Minors, 16 1. C. BR. 801. (R.)

 

IL. 4. b. When vested because these words were
not used in a conditional sense.
1. When given to a trustee, §c., for
a party to take at a particular
time, and to be managed and ap-
plied for his maintenance and
benefit.

4, By marriage settlement money was vested
in trustees to pay the interest to the wife for
life, for her separate use; after her death,
if she left issue by her then intended husband
one or more children, upon trust to apply the
interest to their maintenance until they
attained age or married; from the day on
which they attained age or married, to pay the
principal to such child or children, subject to
such limitations as the husband should ap-
point; in default of such appointment, as the
wife should appoint; in default, to such child
or children in equal shares absolutely ; if the
husband survived the wife, and there should
not be any child of the marriage, or issue of
such child, living at her death, then in trust
for the husband absolutely ; if the wife survi-
ved the husband, and there should not be any
child of the marriage, or issue of such child,
living at his death, then to the wife absolutely.
The wife and one child survived the husband.
The child attained age, married, and died, in
her mother’s lifetime. Held, that she took a
vested interest in the trust fund.

“Leave” construed “have,” to favour the
vesting of a portion.— Wynne v. Brady, 5 I. E.
R. 239. (H.E.)

5. V., seized of a freehold estate, and pos-
sessed of a term for years with a ¢. g. covenant
for renewal, bequeathed to his daughter a
legacy of £600, charged upon the freehold
estate and upon the term; and directed that
428 Gift of
the legacy should be paid upon her attaining
age or day of marriage (whichever should
first happen), with interest from the day of his
death. Held, that this legacy, so far as it was
charged upon the term, was vested; and con-
sequently was divisible in equal shares amongst
the legatee’s next-of-kin, she having died
unmarried, under age, and intestate—ZJn re
Hudsons Minors, Dr. Rep. temp. Sugden, 6.
(.)

1. Devise of houses to executors, in trust to
receive the rents for the support, clothing,
maintenance and education of the testator’s
children until they should respectively attain
age or marry, and afterwards to A., B., and
C., or such of them as shall be then living.
Held, that the devise to A., B., and C. did not
take effect in possession until after all the
children attained twenty-one or married.

Queere—Whether there was an intestacy as
to the surplus rents beyond what was neces-
sary for the maintenance and education of
the children during their minorities ?—Farran
vy. Smith, 11 I. E. R. 254. (R.)

 

Il. 4. b. 2. When the intermediate interest is not
given for his use or benefit, but to another
person; e. g., during minority, life, or until
some particular purpose has been fulfilled.

2. A., by will, gave £300 to her executors,
with directions to place it out at interest, and
pay the interest to her nephew for life, and at
his decease divide the principal among his
children, and if he should leave but one, the
whole to such one child. A.’s nephew had two
children, who died in his life. Held, that the
children took vested interests in the legacy as
tenants in common, with a gift over, in case
there should be but one child, to that one; and
that the representative of the children who

died was entitled to the legacy —Kimberley v.

Tew, 5 I. E. R. 889; 4 Dr. & War. 139 ; 3 Con.

& L. 366. (C.)

+

3. Testator bequeathed all his property to
be invested, and out of the proceeds to pay
his daughter E. £10,000 on her attaining
twenty-one, or the day of her marriage, if
the same should occur before she attained
twenty-one, provided it should be had with
the consent of his trustees, but not other-
wise ; and directed the trustees to pay out of
the interest a sum for maintenance until she
attained twenty-one or married with such
consent, the surplus to be invested and then
paid to her. After similar bequests to other
daughters, he bequeathed all the residue to
his daughter E. and the others, share and
share alike; and directed that if any of his
daughters died before attaining age and un-
married, then as well her portion as her
share of the residue should go to and be
divided, share and share alike, among the
survivors. By a codicil he directed that if
any of his daughters before attaining age
intermarried without consent, then the in-
terest only of such daughter or daughters’
portion or portions should be paid to her or
them for life, for her or their separate use,

[INTERESTS IN PROPERTY.]

 

Personalty.

and after her or their dgath, the portion or
portions should go to all and every the child
or children of such daughter so marrying, to
be equally divided, and to be paid at twenty-
one or marriage, with interest from the
mother’s death. E. married P., without con-
sent, and died under age, leaving a son who
died under age and unmarried. Held, that
the gift of the £10,000 vested in E.’s son and
passed to P. as his representative; that the
marriage referred to in the bequest of the
residue meant, as in the preceding bequest, a
marriage with consent; that the portions re-
ferred to in the codicil did not include the
residue; and that the share of it therefore
vested neither in E. nor in her son.—Hackett
vy. Lord Oxmantown, 12 I. E. R. 534; 11. Jur.
25. (C.)

 

Il. 4. b. 8. Exceptions to the general rule—that the
remainder and the particular interest or
estate vest at the same time upon the Testa-
tor’s intention, ec.

 

IL. 5. Of the vesting in interest, and transmissi-
bility of contingent executory bequests.

4. Bequest of £1000 to J.’s children, to be
paid to them or the survivors or survivor,
after decease of testator’s wife, C. (tenant for
life), share and share alike; also £1000 to
a trustee, after C.’s death, to permit R. then
to receive the interest for life; if R. died,
leaving issue, to divide that £1000 among
the issue, &c.; if R. died without such issue,
the £1000 to gu among J.’s children in the
same manner as the first £1000. R. survived
C., and died without issue. Two only of J.’s
children survived C.; they died during R.’s
life. Held, that they took in the second
£1000 vested interests transmissible to their
representatives.—Luby v. Hamilton, 1 1. E. R.
305. (R.)

5. V., after devising fee-simple estates to A.
for life, remainder to A.’s first and other sons
in tail, with like remainders to B. for life, and
to his sons in tail, and to several others, be-
queathed real and personal chattels upon trust
to permit A. to receive the rents, &c., for life;
after A.’s death to permit each of the several
other persons aforesaid to whom a life estate
in the real estates was thereinbefore limited,
successively and as each of them should be-
come seized of those real and freehold estates
under the aforesaid limitations thereof, to re-
ceive the rents, &c., for his life and their lives
respectively; and from the decease of such
last-mentioned tenant for life as should be-
come seized in manner aforesaid, or if none
of them should become so seized, then, from
A.’s decease, upon trust to grant, assign, and
convey the chattels to such person or persons
as shall then become seized of the said real
and freehold estates under any of the limi-
tations aforesaid. Held, that the chattels
vested in A.’s son, tenant in tail of the real
estates at A.’s death; and did not vest in an
elder son of A., a prior tenant in tail, who had
died in A.’s lifetime, or remain in contingency
until the death of the last survivor of the suc-
Gift of

cessive tenants for life.—Potts v. P., 91. E. R.
577; 3 Jon. & L. 353. (C.)—[Affd., 1 H. Lds.
Cas. 671.]

 

II. 6. Effect upon the vesting or devesting of Le-
gacies when subject to a limitation over
on the happening of a particular event.

a. When the gift is immediate, with a
limitation to “ survivors” upon
the death of any of the Legatees,

; &c., under age, &c.

b. When the event, on the happening
of which the Legacy, §c., 2s
given over is conceived and ex-
pressed so tmperfectly as to ren-
der the Testator’s intent merely
matter of conjecture; or it is
impracticable to perform.

v. When the limitation over is in case
of the death of the Legatee, §c.,
generally.

d. When the limitation over is in case
the Legatee, §c., dies unmar-
ried, and without having * is-
sue” or “children.”

ec. When the contingencies, upon which
Legacies, §c., are hmited over,
were held not to have happened
so as to devest the interest first
given.

f. Construction of words “ payable,”
&c., in reference to event intro-
ducing a limitation over of Le-
gacies, §c., e. g., if any of the
Legatees, §c., dies before his
share becomes payable, $c.

‘

 

Il. 6. c. When the limitation over is in case of
the death of the Legatee, §c., generally.

1. V. devised lands to A. for life, remainder
to his sons successively in tail; remainder to
B. for life; remainder to his sons succes-
sively in tail; remainder to C. and D., and
the survivor, for their respective lives, as
tenants in common. He bequeathed to D.
£1000, charged upon his real and personal
estate, to be by her distributed among her
younger children in such shares as she should
think proper; provided always that if D.
should under the foregoing limitations in the
will get into posssession of the lands, then
the £1000 should not be paid to her for the
purpose aforesaid. D. survived V., but died,
her life estate in remainder in the lands
never having taken effect in possession.—
Held, that she took a vested interest in the
legacy at V.’s death, subject to be devested
on the happening of the contingency; and
accordingly that interest was payable upon
the legacy from V.’s decease. — Finucane v.
Studdert, 11. C. R. 140; 31. Jur. 114. (C.)

 

II. 6. d. When the limitation over is in case the
Legatee, &c., dies unmarried, and
having “issue” or “ children.”

2. Bequest of £1000 to J.’s children, to be

paid to them or their survivors or survivor
after the death of testator’s wife, C. (tenant

[INTERESTS IN PROPERTY. ]

 

Personalty. 429

for life), share and share alike; also £1000 to
a trustee, after C.’s death, to permit R. then'to
receive the interest for life; if R. died, leaving
issue, to divide that £1000 among the issue,
&e.; if R. died without such issue, that £1000
to go among J.’s children in the same manner
as the first £1000. R. survived C., and died
without issue. Two only of J.’s children sur-
vived C.; they died during R.’s life. Held,
that they took in the £1000 vested interests
transmissible to their representatives.—Luby
v. Hamilton, 11. E. R. 805. (R.)

3. By a will, prior to 1838, testator be-
queathed a sum to trustees to permit his
daughter to take the interest for life, and if
she should “leave any issue lawfully begot-
ten” desired that the principal might be dis-
posed of among her children as she should ap-
point, and, for want of appointment, equally ;
but “in case of failure of issue” of his daugh-
ter, he directed the fund to be paid to A., B.,
C.,and D. Held, that “failure of issue” re-
ferred to issue living at the daughter’s death,
and the gift over was valid.

Testator bequeathed a fund to trustees to
pay the interest to X. for life, and the princi-
pal among her issue; and in case of failure of
issue (which was limited to those living at
her death), directed that £500 of the trust
fund might be paid to A., £500 to B., £500 to
C., and £500 to D. A.and B. died in the life-
time of X. Held, that their representatives
were entitled to their shares, X. having after-
wards died without leaving issue—AHanan v.
Drew, 10 I. E. R. 333. (C.)

4. V. bequeathed £1300 on trust to invest
it, and apply the annual produce for the
boarding and education of A., until he at-
tained age, and then to pay him the prin-
cipal and unapplied interest; and if the
“said A. should die before attaining 21 years
of age, and should die unmarried, and with-
out lawful issue, or being of such age and not
having made any testamentary disposition of
the said £1300,” then V. bequeathed it over.
A. attained age. Held, that the legacy vested
absolutely in A., and that the bequest over
was void.—Cunningham y. C., 6 I. Jur. 261.

(C.)

5. A gift of personalty to A. for life, after
her death to B.; if B. died unmarried, or
without children, then over; does not vest
absolutely in B., upon her surviving A. and
being married.—O’ Mahony v. Burdett, 10 I. C.
R. 14; 51. Jur. N, 8. 25. (C.A.)

6. Will:—“ The interest of the remainder
of my money I give to my sisters Jane and
Emily, as long as they continue unmarried,
but when they marry, or die unmarried, I
bequeath the principal as follows :—To each
of my five sisters or their families £200 each.”
After the death of the testatrix Jane mar-
ried, and Emily died unmarried. Her death
was the period of payment. Held, that these
legacies vested in the sisters of the testatrix
upon her death, subject to be devested in
favour of the children of any sister who died
4:30 Gift of
leaving children who survived the period of
payment.—DMolloy v. Armstrong, 11 I. Jur. N.
8.185. (R.)

 

Il. 7. Effect of powers of appointment on the
vesting or devesting of Legacies, §c.

 

III. Vestine or INTERESTS PAYABLE OUT OF
Reav Estate.

1. When the Gift is immediate, but pay-
ment is postponed till Legatee, §c.,
attains age.

2. When the payment is postponed, not in
regard to age, but to convenience of
person, or to the circumstances of the
estate charged.

 

TI. 1. When the Gift is immediate, but payment
zs postponed until the Legatee, §c., at-
tains age.

1. V., seized of a freehold estate, and pos-
sessed of a term for years with a ¢. g. covenant
for renewal, bequeathed to his daughter, C.,
£600 charged upon the freehold and the term ;
and directed the £600 to be paid to C. on
attaining age or day of marriage, whichever
should first happen, with interest from V.’s
death. Held, that this legacy, so far as it was
charged on the term, was vested; and that
consequently, upon C. dying intestate, under
age,‘ and unmarried, it became divisible in
equal shares amongst her next-of-kin.—Jn re
Hudsons, Dr. Rep. temp. Sugden, 6. (C.)

2. A marriage settlement recited the in-
tended marriage, and that C., father of the
lady, V., to secure her a jointure if she sur-
vived her intended husband, D., and to pro-
vide for the issue of the marriage, had agreed
to secure £4800 as her portion, in the manner
thereinafter mentioned. Testatum, that C.,
in pursuance of the agreement, conveyed lands
in fee to trustees for 99 years, to raise there-
out £1000, part of the £4800, and pay it to D.
for his own use; and to permit D. to receive
the interest on £1300, another part of the
£4800, for life; and if V. should survive D.,
to permit V. to receive the interest of that
£1300 for life; and after the deaths of V. and
C. to pay that £1300 to D., if alive, and, if D.
was dead, to his executors, &c. The further
trusts of the term were to raise, if there was
a child or children of the marriage, £2500,
the residue of the £4800, and pay it to the
children, if more than one, in such shares and
at such times as D. should appoint ; in default
of appointment, to pay the £2500 in equalshares
to the children, if more than one (but if only
one, the whole £2500 to that one) on attain-
ing age or marrying, subject, however, to a
life interest therein given to D. It was ex-
pressly declared that neither principal nor in-
terest of the £2500 should be raised during
C.’s life; and, if there should not be any
issue, no part of that sum to be raised.
There was only one child. He died a few
months after his birth. Held, that he, at the
moment of his birth took a vested interest in

[INTERESTS IN PROPERTY.]

 

Realty.

the £2500, and that ptf., his personal repre-
sentative, was entitled to have it raised.—
Reilly v. FitzGerald, 6 I. HE. R. 335; Dr. Rep.
temp. Sugden, 122. (C.)

3. V. devised lands to hold from the death
of his widow, on trust to secure an annuity,
the first payment thereof to be made on the
first day of May after his decease. Held, the
annuity commenced on V.’s death, although
his widow was still living.—Jackson v. Hamilton,
91. E.R. 480; 3 Jon. & L. 702. (C.)

4. Lands were conveyed by marriage settle-
ment, for 999 years, upon trust, during somany
years of the term as A.should live, to pay the
rents to her, or as she should appoint; and,
subject to a charge of £10,000, to pay to H.
for so many years as he should live after the
decease of A., an annuity of £1000; and to
pay the residue of the rents as A. should by
deed or will appoint; and as to the residue of
the term after the decease of A. and H.,it
was limited in.trust that if there should be
younger children of the marriage the trustees
should by sale or mortgage of the residue of
the term, and by the rents and profits thereof
in the meantime, and until such sale, raise
£15,000 for the portions of such younger child-
ren ; the portions to be paid to sons at twenty-
one, and to daughters at twenty-one or mar-
riage; and should, out of the rents in the mean-
time, and until the portions be payable, raise
such yearly sums for the maintenance and
education of the younger children as A. should
deem meet, not exceeding the interest of the
respective portions at the rate of £5 per cent.
Provided, that if any of the children should
die before his portion should become payable,
it should be divided among the survivors.
A. appointed, and died; and a bill having been
filed to raise the principal and interest of the
£15,000, while H. was alive—Held, that the
Court had no power under the settlement to
direct a sale of the term in possession during
ie life of H—[Affirmed, 12 I. E. R. 298.

That the Court could not sellso many years
of the term as should be unexpired at the
death of H., as the security of the prior
charges would thereby be impaired.

That interest was payable on the £15,000
from the death of A., and during the life of
H.—[Reversed, 12 I. E. R. 298. (C.)]—Lloyd
y. Massey, 11 I. E. R. 429. (R.)

After the death of H., A.’s daughter (one
of the appointees) and her hushand insti-
tuted a suit to raise the portion, with interest,
from the date of their marriage, when it vested
absolutely. Held, that they were entitled to
interest from the date of its vesting. —Lloyd v.
Massy, 10 I. C. R. 240; 5 1. Jur. N. 8. 119.
(C.A.)—[Reversed, 10 H. Lds. Cas. 248.]

5. A., seized in fee of W. and B.,.charged
both with an annuity of £500 for his wife for
her life, and devised to trustees two annuities
of £200, one to issue out of W., the other out
of both estates, for the separate use of his
daughters respectively, and limited those two
Gift of

annuities to his son F., in remainder, for life,
with a condition of forfeiture on alienating
them; and devised B., subject to the annuities
charged upon it, upon trust to receive the
rents until his grandson J. should attain
twenty-one, and to invest the same in stock
“for the purposes of the will,” and subject
thereto upon trust for J. in tail male. A. de-
vised W. on trust to permit F. to receive
thereout an annuity of £100 for the life of his
mother, and after her death an annuity of
£200 for his life, with a condition of for-
feiture on alienation. A. next directed that
the rents of W. should be invested in stock
for the purposes of his will; and that W.should
be held upon further trust, upon the death of
his wife and daughters, and subject to the an-
nuities charged thereon, to permit F.to receive
the rents during hislife, with a condition of for-
feiture on alienation ; and from and after his
death or forfeiture, to his first and other sons
in tail male; and in default of such issue, then
to permit J., to receive the rents during his
life ; remainder over. Out of the funds to be
accumulated as above mentioned by the trus-
tees, A. directed them to pay and assist in
paying the annuities given to his wife, daugh-
ters, and F., should those annuities be in
arrear for four months, and out of the next
moneys which should come to the trustees’
possession to replace the sums advanced.
A. charged several legacies also upon the
accumulated fund. A.died. F. having died
afterwards without issue, and leaving the other
annuitants, viz, his mother and sisters, sur-
viving him, Held, that the estate for life in
remainder in W. limited to J. did not vest in
possession upon the death of F., and would
not so vest in the lifetime of any of those
annuitants.—Fitzpatrick v. Knaresborough, 13
IL. E. R. 338. (C.)

1. Bequest of portion of a chattel real to
“my son J.; andif J. dies without a lawful
male heir, his part of the lands falls to his
brother R. JI also order that the part of the
lands which I bequeath to my son J. is to fall
to his youngest son, without any incumbrance.”
Held, that J. did not take an absolute interest
in his portion of the lands, and that the gift
over to R. was not too remote.—Dodds v. D.,
10 I. C. R. 476; 5 L. Jur. N. 8. 357. (C.)—
(Affirmed, 11 I. C. R. 874; 61. Jur. N.S. 75.
(C.A.)]

2. Y. devised real estate in trust for F.,
for life, remainder to his first and every other
son in tail male, with several remainders over ;
and devised the residue of her property to F.
By a codicil, after reciting that she had by
will limited her estates upon trust for the
life use of F., with remainder to his issue in
tail, and divers remainders over; and that
since the making of her will, F. had died,
leaving an only child, A., who under the will
would as she believed, take an estate tail,
on her death, Y. declared her will to be that
A. should not become entitled to or take the
estate so limited to him until he should have
attained the age of 23 years; bequeathed a
portion of the accumulations of the rents to

[INTERESTS IN PROPERTY.]

 

 

Realty. 431

F.’s sister, and directed that she should suc-
ceed to ihe estates next in remainder after the
last remainder in the will. Held, that A.took
a vested estate at the death of Y., and was en-
titled to the rents from that period.—Dennis
v. Frend, 141. C. R. 271. (B.)

 

III. 2. When the payment is postponed, not in
regard to age, but to convenience of
person, or to the circumstances of the
Estate charged.

3. A., in pursuance of a power, appointed
by will £5000 amongst his five daughters, in
equal shares; and, reciting that he was pos-
sessed of lands for twenty-one years, with a
t. g. covenant for renewal, bequeathed the
same, together with £1000, in trust to pay the
interest, &c., to his wife for life; and after her
death, or in her life, if she should so direct, to
raise by sale, mortgage, or otherwise, such a
sum as, together with the provision thereby
made for them, should make up to each of his
five daughters on marriage, if in the life 6f his
wife, with her consent, and unmarried at her
death, then upon their attaining age, or being
married, £2000; and until payment of the
additional provision thus made for his daugh-
ters, he directed the trustees, on the death of
his wife, to pay to each daughter out of the
rents of the land and the interest of the
£1000 so much as, together with the interest
of the £1000, would produce £120 per annum ;
and after the death of the wife, and payment
of the additional portions, to assigncover the
residue to his son. The wife did not direct
the additional provision to be raised during
her life. Held, that a daughter who attained
twenty-one, but died in the life of the wife,
did not take a vested interest in the addi-
tional provision.—Jn re Brabazon, 13 I. E. R.
156. (C.)

 

IV. ContTINGENT AND VESTED REMAINDERS.

. Definition, and several kinds of.

. Nature of Contingency upon which Re-
mainder may be limited.

. Estate ‘necessary to support Contingent
Remainders.

. Of the time when Contingent Remain-
ders should vest.

. Properties of Contingent Remainders
generally.

oa Pe wf Ne

 

IV. ConTINGENT AND VESTED REMAINDERS.

1. Definition and several kinds of.

2. Nature of Contingency upon which Re-
mainder may be limited.

3. Estate necessary to support Contingent
Remainders.

 

IV. 4. Of the time when Contingent Remainders
should vest.

4. V., being seized in fee of several denomi-
nations of lands, A., B., C., X., E., F., and G.
in Ireland, devised all his estates in land in
Ireland upon the trusts thereinafter declared.
He then charged his lands with the payment
432 Contingent

ofjannuities and sums of money, and declared
that, as to the rest, residue and remainder of
all other his estates in land, thereinbefore
devised to his trustees, they should hold the
same to the use of D. for life, and, after the
death of D., if he should leave two or more
sons, then they were to hold the lands of A.
to the use of the second son of D. in tail
male; and if D. should leave but one son,
then to the use of that only son in tail male,
“with all my other estates in land;” and if
D. should leave three or more sons, then the
trustees were to hold B. and C., to the use of
the third son of D., and X. to the use of
the fourth son of D. in tail male; and A. to
the fifth son of D. in tail male, and E. to the
first son of D. in tail male. Then came the
following residuary clause:—“ And all the
rest of my lands and estates in Ireland, hereby
devised to my trustees, and of which I have
not declared any trust or uses after the death
of the said D., I. devise the same to the first
and every other son of the said D. lawfully
begotten, and the heirs male of the body of such
son and sons in tail male successively ; and
for default of such issue male in the said D.,
then to the use of my nieces J., R., and B. F.,
and the survivor of them, for the term of
their natural lives; and after their decease,
to their first and other sons in tail male; and
for default of such issue male, then to the
daughters of the said J., R., and B. F.; and
for default of such issue, male or female, then
to the use of my own right heirs for ever.”

V. then empowered D., as soon as he became
seized of an estate of feeehold, to charge a
jointure for his wife on part of the lands; and
then came a second residuary clause, in these
words :—“ And I give, devise and bequeath all
the rest, residue and remainder of all my real,
freehold and personal estate and fortune, not
hereinbefore particularly disposed of, with all
my leasehold interest, unto D. aforesaid, and
his heirs male lawfully begotten.”—Hedd, that

under the first residuary clause, J., R., and B..|

F. were, upon the death of D. without issue,
entitled to a life estate in the undisposed of
remainders in the lands specifically devised,
after the death of D.; as well as to the
denominations F. and G., which had not been
specifically mentioned.— Taaffe v. Ferrall, 10
I. C. R. 183. (C.A.)

1. A testator gave all his property, real
and personal to trustees, and directed that
they should sell his freehold estate and make
up an account of his estate, so that they
might be able to make a division among his
nine children, to whom he left the same in
equal shares. After other directions, he de-
clared that he left the shares of his daughters
to them for their respective lives, free from
the control of their husbands, with power to
appoint the same among their children, not-
withstanding coverture. In a subsequent
clause, he directed that the shares of his sons
who should have attained age at the time of
his death should forthwith vest in them, and
that the shares of the other sons should vest
as they should afterwards respectively attain
age; and the shares of the daughters, on

[INTERESTS IN PROPERTY.]

 

Remainders.

marriage; and that the shares of sons who
should die under age, and of daughters who
should die unmarried, should go amongst the
survivors, as therein mentioned. J., one of his
daughters, married; and died without having
exercised her power of appointment, leaving
one child. eld, that J. took an absolute
interest in her share of the fund.—M ‘Tear v.
ao 11 I. C. R. 338; 61. Jur. N.S. 146.

2. By indenture of settlement executed
before the marriage of A., freehold lands were
settled upon trust for the younger sons of the
marriage successively in tail male; and the
settlement contained a proviso “that if after
the death of A., any aforesaid younger sons
shall become an eldest son ; and by the death
of an eldest brother without issue male,
become the heir male of the body of A., then
and so often as such case shall so happen
after the death of A., the trust for such
younger son shall become void, and the trust
of the said premises shall go and remain over
as if such younger son becoming such heir
male was dead without issue male.” Held,
that a quasi estate tail vested in the second
son of A., immediately on his birth, and was
not devested by the death of the eldest son in
the life of A.—Jn re Frend’s Estate, 12 I. C. R.
367. (L.E.C.)

3. By a post-nuptial settlement, the wife’s
father conveyed a term of years in trust for
the husband for life, or until he should be-
come bankrupt, or take the benefit of any Act
for the Relief of Insolvent Debtors, or assign
his property for the benefit of his creditors, or
otherwise fail in his circumstances ; and from
and after the happening of any such events, or
from and after the decease of the husband, on
trust to pay the wife during her life the rents,
&c.; and after the decease of both, in trust for
the children. Provided that, if the husband
should become bankrupt, or take the benefit
of the Insolvent Act, or assign his property
for the benefit of his creditors, or otherwise
fail in his circumstances, his life interest
should cease, and the trustees should pay the
rents to the wife for her separate use. The
husband and wife, by a deed not acknow-
ledged by the wife, mortgaged all the estate
and interest of which the wife “was then, or
should or might, upon or after the death of
the husband, be in anywise entitled to,” and
all the estate, &c., both at law and equity, of
the wife to the premises.

A petition was filed to foreclose the mort-
gage, to which the trustees or the children of
the marriage were not parties. The husband,
pending the suit, took the benefit of the In-
solvent Act. Held, that temporary embarass-
ment of the husband did not bring into ope-
ration the limitation to the separate use of
the wife.

That the insolvency of the husband after
the filing of the petition did not entitle the
mortgagee to a decree for the sale of the
wife’s separate estate.

That the trustees should have been made
parties to the suit.
[INTERESTS IN PROPERTY.—INTERMEDIATE PROFITS.] 433

That the separate estate did not pass by
the terms of the mortgage deed.

Semble—A. feme covert cannot, by a deed not
acknowledged, convey a contingent interest in
a term of years settled to her separate use.—
Bestall vy. Bunbury, 13 I. C. R. 549. (R.)

1, A married woman has no power of dis-
position over an interest in realty, limited
to her for her separate use upon a contin-
gency (viz., the insolvency of her husband),
until the event has happened upon which her
estate arises.—Bestall y. Bunbury, 13 I. C. R.
318. (C.)

2. Testator, by will, devised and bequeathed
his interest in his freehold and chattel pro-
perty to his grandson J.; “but in case my
said grandson J. should happen to die be-
fore he attains the age of twenty-one years,
or marries,” then over. Held (reversing
the decision of the L. E. Court), that “or”
should be read “and,” and that J. had ac-
quired an absolute estate, having attained
twenty-one, though he had not been married.
—In re Clegg’s Estate, 14 1. C. R. 70; 8 I. Jur.
N.S. 21. (C.A.)

8. A devised real estate in trust for J. for
life, remainder to his first and every other son
in tail male, several remainders over ; and de-
vised the residue of her property to J. By a
codicil, reciting that she had, by will, limited
her estates to trustees, upon trust for the use
of J., with remainder to his issue in tail, and
divers remainders over, and that since then J.
had died, leaving an only child, F., who under
the will would, as she believed, take an estate
tail on her death, A. declared it to be her will
that F. should notibecome‘entitled to;or.take
the estate so limited to him until he should
have attained the age of twenty-three years;
and bequeathed a portion of the accumula-
tions of the rents to,J.’s sister ; and directed
that she should succeed to the estates next in
remainder after the last remainder in the will.

. Held, that, F. took.a vested estate at A.’s
death, and.was entitled to the rents from that
period.— Dennis v. Frend, 14 1.C. R. 271. (R.)

 

tralV. 5. Properties of Contingent Remainders
generally.

4. Remoteness does: not affect the validity
of a contingent remainder.—Cole v. Sewell, 6
I. E. R. 66; 4 Dr. & War. 1; 2 Con. & L. 344.
(C.)—[Affd., 2 H. L. Cas. 186; 12 Jur. 927.]

 

V. Assignment or ContincentT INTERESTS,
anp Limitations OF PERSONAL AND
CHATTEL , INTERESTS.

 

INTERLOCUTORY ORDER.
See Practice, INTERLOCUTORY ORDER.

 

INTERMEDIATE PROFITS.
See AccRETION—RENTS AND Prorits.

5. The decree declared that the estate there-
in mentioned was divisible into three parts,
and that the younger children of A., B., and

 

O. were severally entitled to one-third part.
O. was largely indebted to the estate. A se-
questration issued, and continued against him
till his death. By means thereof sums were
brought in from time to time, and allocated
according to the parties’ rights.

Before any of the funds were allocated two
of O.’s younger children died. The Master’s
report found that sums (being their shares of
the fund) then in bank were payable to their
personal representatives. O., as executor and
sole legatee of one of them, and as adminis-
trator and sole next-of-kin of the other, be-
came entitled to the shares of both; but, there
being a sequestration against him, made no
claim.

O., at his death, owed a large balance to the
fund. The proportion of that balance to
which his younger children should have been
entitled exceeded the amount of the aforesaid
shares. T., another of O.’s younger children,
having become legal personal representative
of his father and brothers, applied for the
aforesaid shares, after payment of the costs
due to their solicitor. Held, that, when O.
became entitled to this money it was attached
for the purposes of the decree, by the seques-
tration against him; and should not now be
paid out to his personal representative —
Crone y. O'Dell, 31. E.R. 12. (RB.)

6. The case of Waite v. Bishop (1 Cr. M. &
R. 507) decides expressly that a sequestration
is not retrospective, and attaches the future
accruing profits only.—Egan v. Heenan, 3 I. E.
R. 50. (R.)

7. The conditional order pronounced on a
petition for a receiver on a judgment is only
notice to the debtor, and does not bind the
lands; but Semble, the order which binds the
lands is the order which, according to the
practice previously to the Rules of 27th of
March 1843, was made upon the return of the
Master’s report directing the tenants to pay
their rents to the receiver.—Burt v. Bernard,
51H. R. 425. (C.)

8. A sequestration issued against the de-
fendant for non-performance of a decree to
pay money to the plaintiff. The sequestra-
tors seized the rents and profits of his lands.
The plaintiff and a prior incumbrancer both
applied for those funds. Held, that the prior
incumbrancer was entitled to them.

Sequestration is neither in form or sub-
stance an execution. It is founded on default
of performance of the decree of the Court,
and gives no right in the funds levied to the
party at whose instance it is sued out.—
Burne v. Robinson, 71. H. R. 188. (R.)

9. A tenant, at a bulk rent, of lands over
a part of which a receiver was appointed, for
years made payments generally on account of
rent to the receiver; allowed him to allocate
them partly to the credit of the cause, and
partly to the person to whom the rent of that
part of the lands not in the cause belonged ;
and for a long time acquiesced in ‘that alloca-
tion—Held, bound by such acquiescence.

55
434

Held, plaintiff and the assignee disentitled
to costs of appearing on the motion.—Col-
thurst v. C.,7 1. E. R. 305. (H.E.)

1. In 1822, the plaintiff obtained an order
for a receiver over the shares of F. and P.,
but did not prosecute it. No receiver was
appointed until 1834, interest on the plaintiff’s
demand running in the meantime. Held, that
if the non-appointment of the receiver was
caused by the plaintiff’s default, he must bear
the loss of so much of the interest as would
have been paid out of F.’s (the deficient)
share by the receiver if he had been appointed
in due time. An inquiry directed accordingly.

Costs of a suit when there had been great
delay, and proceedings taken which were not

‘followed up.—Newby v. Drew, 7 I. E. R. 349;
1 Jon. & L. 445. (C.)

2. A party having an annuity charged on an
estate for life filed a bill, and obtained a re-
ceiver. A judgment creditor whose judgment
was a charge on the inheritance obtained an
extension of the receiver under the Sheriffs
Act. Held, that the judgment creditor was
entitled to have the entire rents applied to pay
both the principal and interest due to him, in
priority to the annuitant, the Court having no
jurisdiction to fix an equity on the fund.—
Corbet v. Mahon, 8 I. E. R. 685; 2 Jon. & L.
671. (C.)—[Sees. c. 101. E. R. 201. (R.)

38. A puisne mortgagee obtained a receiver
under the Mortgage Act. A prior mortgagee,
in a year after, extended the receiver, no
rents having in the meantime been collected
by him. Held, that the prior mortgagee was
entitled to all the rents due before the exten-
sion, but not collected till afterwards Boyd
vy. Burke, 8 I. E. R. 660. (R.)

4, A., tenant for life, mortgaged under
power the inheritance for £500 and £1000;
and afterwards paid the first mortgage, and
took an assignment to a trustee. After his
death B. became entitled to the mortgages.
C., tenant in tail, a minor, covenanted by
marriage articles in 1827, to convey the lands
in trust to sell, and pay the debts then affect-
ing them; and subject thereto, for herself for
life, remainder to her children. A recovery
was suffered on her majority. B. filed a bill,
and obtained a report finding in 1835 that
arrears of rent and fines, due in the life of A.
and after, were paid off by loan on mortgage;
and found this sum and the two mortgages,
with interest on them all from before the
death of A. to the time of the report, to be
due. A sale was decreed to pay them. In
1840 B.’s assignee filed a bill, not making the
trustee of C.’s settlement a party, and ob-
tained a decree to carry the former decree
into execution. Held, that the trustee was a
necessary party, as representing the inherit-
ance. That the first decree was erroneous,
declaring the inheritance liable for interest
payable by the life estates of A. and C.; and
that a purchaser under the second decree,
in which the inheritance was not represented,
could not be held to his purchase.

 

(INTERMEDIATE PROFITS.]

A report of good title, plaintiff’s solicitor
undertaking to procure a signature, is in-
formal.—Magawley v. Brady, 9 I. E. RB. 59.
®.)

5. When a receiver is appointed by a puisne
creditor, and afterwards extended by a prior,
creditor, the rents received before the exten-
sion of the receiver, but not paid over, be-
long to the puisne creditor.— A bbott v. Stratton,
91. E. R. 233; 3 Jon. & L. 603. (C.)

6. A mortgagee obtained a conditional
order for a receiver under the Mortgage Act.
Payments were made on account of interest.
A receiver was appointed by a judgment
creditor. A petition being presented by the
mortgagee, the conditional order was made
absolute, and the receiver extended to the
mortgage, in Chamber. On an affidavit sta-
ting the intermediate payments, the order was
set aside.

A judgment creditor having a receiver is
not entitled to notice of a petition by a mort-
gagee to extend him to the mortgage.—
Goldsmidt v. Lord Gllengall, 11 I. E. R. 608.

(C.)

7. D. was tenant for life of estates, subject
to a charge on the inheritance of £15,000 vested
in. A billwas filed by D.’s creditors claiming
under a deed of the 20th April 1799, and a
receiver was appointed over D.’s life estate.
8. filed a bill to raise the £15,000 vested in
him, which was created by a settlement of the
12th Nov. 1761. D., died on the 5th Oct. 1844.
8. obtained an order on the 27th Jan. 1845, from
the late M. R., extending the receiver to S.’s
cause so far as related to the rents due at the
time of the decease of D. and then remaining
uncollected; a sum being in the receiver's
hands, consisting of rents due in D.’s lifetime,
part of which was collected before and part
after the order of the 27th Jan.‘1845, Held
(affirming the Master’s allocation report), that
the creditors of D.’s life estate were entitled to
the rents received before, and S. to the rents
after, the order of the 27th Jan. 1845.— Moore
v. Donegal, 11 I. E. R. 864. (R.)—[Affirmed ;
ibid, 412. (C.)j

8. Rents received by a receiver after the
gale day next succeeding the lodgment of the
three-fourths of the purchase-money by a pur-
chaser of lands under a decree, are applicable
first to the payment of solvent arrears, and
then to the rent due to the purchaser, whether
or not he has gone into possession, or the pur-
chase deed has been executed.—[Lee v. Moor-
head, 2 Mol. 509, and Hargrave v. Holland, 5
I. E. R. 162, overruled.]

Practice in framing objections to the Mas-
ter’s report allocating rents so received.—
Doorley v. Power, 111. E. R. 577. (R.)

9. In 1836, a receiver was appointed under
the Sheriffs Act, at the suit of A., over aterm
for years, which was afterwards sold under an
Act of Parliament, and the money brought
into Court to the credit of the matter. Held,
[INTERMEDIATE PROFITS.]

that as against a prior creditor, A. was enti-
tled only to the dividends of the fund, but not
to the principal, notwithstanding the 3 & 4
Vic., c. 105, s. 22.—Colvan v. Gregg, 13 I. E. R.
88. (R.)

1. In anincumbrancer’ssuit, A. the inheritor,
admitting his liability to an arrear of interest,
and disputing his liability for more, was
ordered, on a motion for a receiver, to pay
within a certain time the admitted amount;
and to pay the accruing gales of interest for
the future. He did pay for some years; but
having made default afterwards, the receiver
was appointed under this order. Under acon-
sent order subsequently made, he applied the
funds from time to time in paying the future
interest. He was afterwards extended on the
petitions of several puisne judgment creditors
of A. A fund having accumulated, brought
in by the receiver after paying the interest—
Held, that it could not be claimed by the judg-
ment creditors, while the principal and dispu-
ted arrear of interest were due to the plaintiff ;
the receiver, when once appointed, being so
for all purposes of the cause, and not to be
considered limited to the payment of the ac-
cruing interest.—Stuart v. The Marquis of
Donegal, 13 J. E. R. 106. (C.)

2. Sequestrators being in possession to en-
force a decree, will not prevent the appoint-
ment of a receiver on petition of a prior judg-
ment creditor. He cannot be paid out of the
rents to be received by continuing the seques-
trators.—Reeves v. Cox, 13 I. E. R. 247. (C.)

3. Upon the hearing, the Court, though en-
tertaining a strong opinion in favour of the
plaintiff, directed an ejectment against the
defendant, who obtained a verdict, which was
afterwards set aside. The Court granted a
receiver over the defendant’s possession, it
being shown that the rents were in danger.—
Scott v. S., 131. E.R. 212. (C.)—[See 4 H.
Lds. Cas. 1065.]

4, Rent falling due, after the death of the
lessee, under a covenant for himself, his heirs,
executors, &c., to pay it, is not such a debt as
can, under the Statute of Fraudulent Devises
(4 Anne, c. 5, Ir.; 3 W. & M,, c. 14, Eng.), be
enforced against his real estate in the hands
of his devisee.

A., holding premises under a lease of 1789,
for three lives, with a covenant for perpetual
renewal, demised them in 1803 to B. for 900
years. B.covenanted for himself, his heirs,
executors, &c., to pay rent, keep the pre-
mises in good repair, and deliver them up in
such repair and condition. In 18380 the last
c.g. v. in the lease of 1789 died. In 1827 and in
1835 renewals had been made to a trustee for
parties claiming under the will of A. That
trustee died in 1840. In that year another
renewal was granted to another trustee for the
same persons. B.’s executrix, in 1838, assigned
his interest in the premises to C., whose ad-
ministrator assigned them in 1846 to D., a
pauper. Subsequently to the death of B., the
rent payable to the claimants under A. became

 

435

in arrear. The premises fell out of repair.
Upon a suit in equity instituted by them—
Held, that the real estate of B. (the lessee of
1803) in the hands of his devisee was not liable
to the rent.

That the personal estate of B. in the hands
of his executrix continued liable for breaches
of the covenants to pay rent and to repair.

That the personal estate of C. was, in the
hands of his administrator, liable for breaches
of the covenants to pay rent and to repair,
which occurred between the assignment to C.
and that to D.

That D. would be liable for breaches of both
covenants which might occur during his oc-
cupation.

Semble—That the petitioners were entitled
to substantial damages for breaches of the
covenant to repair, and not merely to such a
sum as would, if kept at interest until the end
of the 900 years, then suffice to put the pre-
mises in repair—Macnamara v. Vincent, 2 I.
C. R. 481; 41. Jur. 197. (C.)

5. An order of reference was made on the
10th of July 1851, to appoint a receiver
over mines which had been demised by the
principal defendant by a lease, reserving one-
twelfth of the ore, to be weighed and de-
livered at the pits, and containing a cove-
nant by the lessee to weigh and deliver it. A
portion of the ore was weighed and removed
before the 10th of July 1851, by the lessee,
who, as he usually did, sent it with his own
ore to be sold, and gave bills for the amount
to the defendant after that date. Held, that
the defendant was bound to bring in the
amount of the bills of exchange, as the ore
had not been delivered, and the covenant in
the lease had not therefore been performed
when the order of reference for the appoint-
ment of the receiver was made.

A receiver is entitled to all arrears of rent
unpaid, when the order of reference for the
appointment of a receiver is made; and al-
though the tenants are only responsible from
the time when the order to pay their rents to
the receiver is served on them, yet the person
entitled to receive such rent and*arrears is
bound from the date of the order of reference
to appoint a receiver, where he has notice of
such order.—Hollier v. Hedges, 2 I. C. R. 370.

(R.)

6. A receiver having been appointed over
the estate of a tenant for life, for payment of
tithe rentcharge, the Court, after the death
of the tenant for life, continued the receiver.
Held, that as against the remainderman the
petitioner was entitled to one year’s rent-
charge only.—Labarte v. Constable, 2 I. C. R.
554. (R.)

7. A. bequeathed to his wife F. all his
household furniture and plate, and subject
thereto left all his property to his executors,
in trust, immediately after his decease, or
so soon as they conveniently could, to sell all
his chattels (except his household furniture
and plate, and his horse “ Harkaway”), and
to invest the produce thereof. As to his
436

_horse, he desired that, should £1000 or up-
wards be offered for him, his executors should
sell him; but if that sum could not be realised
for him, that he should be kept so long as he
should live, and let each season; and in the
event of his being sold, that the sum for
which he should sell should likewise be in-
vested. He then devised an annuity, and
subject thereto left all the rest of his pro-
perty in trust to pay the rents, issues, and the
whole and entire produce thereof, to his wife
F. for her natural life, and after her decease
to convey it over. The horse was not sold,
but let out as a sire—Held, that F. was not
entitled during her life to the clear earnings
of the horse.

Semble—A value should have been placed
on the earnings of the horse, and that F. was
entitled to the Court rate of interest on
such value.—Arnold v. Ennis. 2 I. C. R. 601.

(R.)

1, A sum was received by a respondent,
from the tenants, after the appointment of
a receiver by a puisne creditor. The receiver
in his account was charged with the sum as
received by him, and a conditional order for
an attachment was obtained against the re-
spondent before the extension of the receiver
by a prior creditor. Held, that as the tenants
paid the sum prior to the extending order, it
was to be considered as a sum paid by the
tenants for the receiver, and that the peti-
tioner in the first matter was entitled to it—
O Callaghan, v. O'C., 31. C. R. 376. (R.)

2. A., equitable mortgagee of premises
mortgaged in 1843, obtained a judgment in
1846 for the amount of his debt. In May 1847,
A. appointed a receiver under the Judgment
Acts over the premises in the mortgage, and
also over other premises of the debtor. B.
had a mortgage of 1844 (with judgment col-
lateral) over these last premises and others not
in A.’s mortgage. In March 1847, B. filed his
bill to foreclose his mortgage, praying a sale of
the premises comprised in his mortgage, and a
receiver over them, and making A. a notice
party as a judgment creditor. In 1848 A.’s
receiver was extended to B.’s cause, and was
appointed over the further premises in B.’s
mortgage. A considerable amount of the
rents received generally by the receiver was
paid under orders of the Court to B. Held,
that the payments to B. should have been
made out of the rents of those premises only
which were comprised in his mortgage; and
that the extension could not affect, the rents
received out of the premises not comprised in
that mortgage. That although B.’s collateral
judgment might have been made a charge on
all the lands, yet as no specific relief was
sought on foot of it in the foreclosure suit,
the rents of the premises not in B.’s mort-
gage were not attached, nor the rights of the
parties to the fund in Court altered. It was
referred to the Master to allocate the funds
and report the rights of the parties, without
regarding any previous orders of the Court
touching payment out of the rents received.—
Bristow v. Millar, 6 J. Jur. 285. (R.)

 

[INTERMEDIATE PROFITS.]

3. A purchaser of lands by public auction
agreed to pay the purchase-money in March
1852, and fulfil the conditions of sale, one of
which was that he should be entitled to the
rents from the Ist of Nov. 1851; and that
he, if the completion of the purchase should
be delayed “from any cause whatsoever” be-
yond March 1852, should pay interest on the
purchase-money from Nov. 1851. The vendor
agreed to furnish an abstract of title within
four days. It was not sent within the spe-
cified time, and the title was not completed
until Jan. 1854. The purchaser had, before
March 1852, drawn the price out of the funds
and lodged it in bank, ready for payment, but
received little or no interest upon it. In the
beginning of the latter month he sent an
agent to the vendor, offering the money, and
declining to pay interest upon it after that
date. The vendor refused to receive the
principal until the title should be completed;
and in the latter end of the same month the
purchaser wrote a letter to the vendor, stating
that if the abstract of title should be fur-
nished within one week, he was ready to com-
plete the contract, provided that his right to
the rents should not be interfered with, and
that he should not be asked for interest
upon the purchase-money. No direct reply
was giver, but negotiations were continued.
Finally, a petition having been filed by the
vendor to compel the purchaser to complete
the purchase, and pay interest on the pur-
chase-money—Veld, that the purchaser was
not liable for that interest, the vendor having
been in default.

That the purchaser was entitled to the
rents of the lands.—Kellett v. Farrelly, 7 I.
Jur. 134. (C.)

4. A rector, by deed, granted, for value, an
annuity charged on his tithe rentcharge and
glebe lands, payable on the lst day of May
and Ist day of November in each year. The
deed gave a power of distress when the an-
nuity should be thirty-one days in arrear;
contained a power of attorney to the grantee
to receive the rentcharge, and a demise toa
trustee to secure it. The tithe rentcharge
became due on the Ist of May and Ist of No-
vember in each year. The annuity was paid
up to the Ist of November 1860. In April
1861, the grantee served notices on the tithe
rentcharge payers to pay their rentcharge to
him. Afterwards, on the 19th of April, a se-
questration issued on foot of a judgment
puisne to the annuity deed. On the 2nd of
May 1861, the grantee filed a petition for a
receiver over the tithe rentcharge. Held,
that he was entitled as against the sequestra-
tion creditor to the tithe rentcharge received
by the sequestrator after the filing of the pe-
tition —Jrvine v. Frew, 12 I. C. R. 418; 7 I.
Jur. N. 8.72. (C.)

5. Before decree, a defendant in an incum-
brancer’s suit is not in privity with the rents
received by the receiver, though he files an
answer claiming a charge on the lands.—Foss
v. F151. C. RB. 215. (R.)—[S. C. 10 I. Jur.
N.S. 301. (C.A.)]
[INVESTMENT.]

INTERPLEADER.

See Preapine, Brru— Practicr, Biri or
INTERPLEADER — Practice, Costs—
Practicz, Evipence—Pracrics, Par-
MENT INTO Court.

 

INTERPRETER.

 

INTERROGATORIES.

See Practice, InreERROGATORIES—PLEADING,
Brrr—Demourrer To. See Practicz,
Evivence.—30 & 31 Vic., c. 44.

 

INTESTACY.
See ADMINISTRATION.

 

INTITULING PLEADINGS.
See Practice, Intrrutinc PLeapines.

 

INTOXICATION.
See DRUNKENNESS.

 

INVESTMENT.
See Bankruptcy, X—Cuariry, II—Monery
To BE InvestED—TrustezEs, [V—Ven-
DOR AND PurcHaseEr, III—1 W. 4, c. 60.

 

I. In Generar—Liapivity of INVESTERS
WHEN SURETY FAILS.
II. Wuat Is A PROPER INVESTMENT.
II. Costs oF.

By the 54 G. 3, c. 92, s. 83, an executor
could pay a legacy into Court when legatee is
a minor.

By Trustee Relief Act, 11 & 12 Vic., c. 68,
trustees, executors, &c., may pay into Court
minors’ stock, &c., in their hands.

By G. Orders of Oct. 9, 1848 (Gam. C: O.
376), directions are given as to what affidavit
to pay in money shall contain.

By G. Order, Feb. 24, 1853 (Gam. C. O. 425),
Accountant-General, in certain cases, to invest
dividends, &c., in government stock.

By 22 & 23 Vic., c. 35, s. 32, a trustee, execu-
tor, or administrator, unless expressly forbid-
den, may invest trust fund on real securities
in the United Kingdom, or in the stock of the
Bank of England or Ireland, or in East India
stock. [Made retrospective by the 23 & 24
Vic., c. 38, s. 12.]

By 23 & 24 Vic., c. 38, s. 10, power is given
to make G. Orders as to the investment of
cash under the control of the Court, either in
the £3 per cent. consols or reduced bank an-
nuities, or in such other stocks, funds, or
securities as shall be thought fit; and also to
make orders for the conversion of such stock.

By sec. 11, when the G. Order has been made,
trustees, &c, having power to invest on govern-
ment securities, or parliamentary stocks, funds,
or securities, or any of them, to invest such

 

437

trust funds, or any part thereof, in any of the
stocks, funds, or securities, in or upon which
by such G. Order cash under the control of the
Court may be invested from time to time.

By aG. Order, made May 24th 1861 (Jr.),
pursuant to said Act, cash under the Court
may be invested in Bank of Ireland stock,
upon mortgage of freehold or copyhold estates,
government new £3 per cent. stock, and £3 per
cent. consols.

By 30 & 31 Vic., c. 182, s. 1, doubts, touch-
ing the meaning of the words “East India
Stock,” in the 22 & 23 Vic., cv. 35, are removed.

Sec. 2 empowers trustees, &c., to invest in
any securities the interest of which is or shall
be guaranteed by Parliament.

 

I. In GENERAL.

1. When money is lodged with the Account-
ant-General under the Legacy Act, he is bound
from time to time to invest the dividends
thereon in stock. The order to invest the
principal should provide for the costs of in-
vesting the dividends. When the order did
not provide for those costs, the Accountant-
General was held, not responsible for not having
so invested the dividends.—Kx p. M-Mullen, 7
I. E. R. 488. (R.)

 

IRELAND.

See LanpLorp anp Tenant, VI—1 W. 4,
cc. 60, 65,

 

IRISH TENANTRY ACT.

See Starures, Construction or, II.—Lanp-
LORD AND Tenant, VI.

 

IRRELIGION.

 

IRREGULARITY OF PROCESSES.
— Costs as to. See Practrics, Costs.

 

ISSUE AT LAW.
See Practics, Issuz at Law — Practice,

 

Costs.
ISSUE.
— When joined by Answer. See Practice,
ANSWER.
— When joined by Bill. See Purapine, Brix.

 

ISSUE—CHILDREN.

See ADVANCEMENT—BasTaRD—GRANDCHILD-
REN—HALF-BLoopD — MaInrenancr —
PaRENT aND CHILD — Posruumous
CuILDREN—YouNGER CHILDREN,

— Bat a Revocation of will by. See Winx,

I
438

—In Tail. See Estates, I.
— In Remainder. See Estate, II.
— Read Children. See W111, XV, 6, d.

 

JEWS.

See Atiens—JEws’ Revier Acts, 21 & 22
Vic., c. 49; 23 & 24 Vie, c. 63.

 

JOINT COMMISSION OR FIAT.
See Banxrurtcy, VI.

 

JOINT OR SEPARATE DEBT.
See Bankruptcy, VI.

 

JOINT-STOCK COMPANIES.

See Corporations — ParTNERsHIP — RaIL-
WAYS.

[See The Companies Act 1862, 25 & 26 Vic.,

c. 89; The Companies Act 1867, 30 & 31

Vic., c. 181.]

I. In Generat—How constiturED—THEIR
VaLipity anD LEGALITY.

TI. Ricurs, Duties & LiaBiLiTies OF THEIR
Directors.

IZ. Ricuts, Duties & LiaBILITES OF THEIR
SHAREHOLDERS.

IV. Actions anp SUITS BY AND AGAINST
STRANGERS AND JorInT-stocK Com-
PANIES, AND BETWEEN THEM AND THEIR
MEMBERS.

 

I. In GeneRaL—How constTITUTED—T HEIR
Vaipiry anp LEGALITY.

1. When a member transfers shares to the
Company, the Company may, as between the
parties to the transfer, dispense with the ma-
chinery rendered necessary by law to trans-
fers generally.

Another Company cannot afterwards, as be-
tween themselves and the partner with whom
they contracted, impeach the transaction.—
Taylor v. Hughes, 7 I. E. R. 529; 2 Jon.
& L. 24. (C.)

2. A Joint-stock Banking Company held
bound by a trust deed for the benefit of credi-
tors, from the conduct of their public officer
and others in assenting to it, though neither the
Company nor directors had given any authority
to execute it; and the arrangement was im-
provident for them.

Semble—The rule requiring an authority
under seal from «a partner to execute deeds
does not apply.

A creditors’ deed provided that if the as-
signment thereby made should for any reason
become inoperative; or any of the property
thereby conveyed, or intended so to be, should
not have been effectually assigned thereby ;
the sureties might abandon it. The deed was
an act of bankruptcy, under the 6 W. 4, c.
14, s. 29. No notice was given as required by
that section, and an attempted sale in execu-
tion of the trusts failed, from inability of the
trustees to make title.

Held, that it could not be avoided under the
proviso, as that contemplated an act by some

 

[JOINT-STOCK COMPANIES.]

stranger thereafter, and not a defect inherent
in the deed itself— Dudgeon v. O’ Connell, 12 I.
E. R. 566. (C.)

3. The Bankers Act, 33 G. 2, v. 14, does not
apply to Joint-stock Banking Companies
formed under the 6 G. 4, c. 42.—O’ Flaherty v.
M‘Dowell, 61. C. R. 350; 2 I. Jur. N.S.
113. (C.)—[Affd.: 6 H. L. Cas., 142.]

4, A Mining Company was formed on the
cost-book principle. By the 34th rule, every
shareholder was to be apprised of a call by a
circular, sent sixty days before the time fixed
for payment, stating the time and place of pay-
ment, and pointing out the consequences of
non-payment. The 35th rule provided that, in
case of non-payment of the call at the ap-
pointed time, the committee might declare the
share forfeited. The 38th rule provided that
the rules could only be altered at a special
general meeting of the Company, convened by
notice specifying the amendment or alteration
proposed to be made; such special general
meeting to be called at the request in writing
of shareholders holding 2500 shares; and the
14th rule provided that shareholders to that
amount should be present at such meeting.
At a meeting of the committee, on the 9th
Dec. 1853, it was resolved that a special gene-
ral meeting should be called, to suspend the
34th rule, and to make a call on the share-
holders. A special general meeting was ac-
cordingly held on the 27th Dec. 1853, at which
it was resolved that the 34th rule should be
suspended, and that a call should be made; the
first instalment to be payable on the 14th Jan.,
and the second and third instalments on the
14th April and the 14th July 1854; and that
shares upon which a call should be due on the
21st Jan. 1854 should be declared forfeited.
Shareholders holding 2500 shares were not
present at the meeting of the 9th or 27th Dec.
On the 24th Jan. 1854, at a meeting of the
committee, it was resolved that the share-
holders should be informed by advertisement
that any share on which a call should be due
on the 20th Feb. should be declared forfeited.
A further meeting of the committee was held
on the 7th Feb. 1857, calling a special general
meeting of the Company on the 27th Feb.,
which was held, and at which it was resolved
that fourteen days’ further time should be
given for payment of the call, and that the
meeting should be adjourned until the 13th
March 1857, for the purpose of confirming the
forfeiture of shares on which a call should be
then due. Atthe adjourned meeting a number
of shares were declared forfeited. Held, that
the 14th and 38th rules, providing the course
to be adopted to set aside or vary the rules,
were matters of substance and not of form,
and should be strictly complied with.

That the 34th rule had not been properly
rescinded, and the call was therefore impro-
perly made.

That the forfeiture was not duly declared,
although it had not been declared until the
sixty days had expired, and therefore the
holders of the shares should be placed on the
list of contributories.
(JOINT-STOCK COMPANIES.]

The 22nd of the cost-book rules provided
a mode by which shares might be relinquished,
which was not complied with by the holders of
the shares declared to be forfeited. Held, that
they could not avoid contribution on the ground
of acquiesence in the forfeiture.

That although persons who took part in
the irregular meetings and declaration of for-
feiture could not insist on contribution by the
holders of the shares, the official manager, on
behalf of the other members of the Company,
might require them to be placed on the list of
contributories.

The right to declare a forfeiture of shares
is strictissimt juris; and therefore, in the ab-
sence of express stipulation in the deed of
settlement or rules of a Mining Company,
formed on the cost-book principle, shares
cannot be declared to be forfeited for the non-
payment of calls——Jn re Mizen-Head Mining
Co., 61. C. R. 489. (R.)

 

II. Rients, Duties, anp LIABILITIES OF THEIR
Direcrors.

 

Ill. Rieuts, Durizs, anp LiaBivities oF
THEIR SHAREHOLDERS.

1. A decree, declaring that all the share-
holders in a company are bound to pay what
may be found due to ptf., does not make the
shareholders personally liable.— Vigers v. Pike,
8 Cl. & F. 652.—[Affg., 2 Dr. & Wal. 1.

(.)]

2. A., a shareholder in the A. and C. Bank
of Ireland, sold, in 1837, his shares to the Co.,
who paid him therefor, and entered the sale
in their books. The printed deed of transfer
required by law was filled up and executed by
the ptf., but not by any of the trustees of the
Bank. No memorial of transfer was executed.
In the registry filed in Nov. 1837, A.’s name
appeared as having ceased to be a partner,
and his name was omitted in the annual re-
gister of shareholders filed in the years 1838,
°39, 40, 41, and ’42. In 1843, A.’s name was
replaced on the register of shareholders, in
pursuance, as alleged by A., of a fraudulent
arrangement between the Bank and B., a cre-
ditor on foot of debentures issued subsequent
to 1837, in order to make A. liable. B. hav-
ing obtained judgment against the Bank, on
plea of confession in an action on the deben-
tures sued out a sci. fa. against A. asa share-
holder. The Court granted an injunction
until answer, to restrain B. from proceeding
at law against A. upon uhe sci. fz., and to re-
strain the Bank from placing A.’s name as a
shareholder on the next ensuing annual regis-
ter.— Taylor v. Hughes, 61. E. R. 480. (R.)

38. “If a man’s money, whether by mistake
or fraud, is entered to the credit of, and a
receipt given for it to a third person, by a
banker, his right to it is not thereby devested;
nor can the banker be compelled to pay the
money to a person whose title originated in
the mistake or fraud.”—Cochrane v. O’Brien,
61. E.R. 317. (R.)

 

439

4 A bonus declared by the Bank of Ire-
land on their stock, in addition to the annual
dividend, is not in the nature of annual profits,
but is an accretion of the capital. The‘inte-
rest only of it belongs to the tenant for life of
settled stock.—Ex parte Hodgens, 111. E. R.
99. (C.) °

5. A., B., and C., were appointed directors
of a bank under the partnership deed, in
1842; B. was appointed managing director,
and C. was local manager of the Bank; A.,
B., and C. were constituted the Court of
Directors. A. died in 1846; V. was, in 1848,
appointed director in his place. Up to 1854
B. had made enormous advances from the
Bank to his brother. C. then remonstrated,
but did no more, and continued local manager
till 22nd March 1855, when he gave a letter to
B., saying, “ I beg to resign my oftice of direc-
tor of this Bank.” He then ceased to act. On
the 29th of the same month C. transferred all
his shares to B. for more money than they
were worth, but which was paid by B. No
notice of the transfer was given, nor was it
approved of by the Court of Directors as re-
quired by the deed—(Scee s. 102). The Bank
stopped payment in Feb. 1856, and was hope-
lessly insolvent. Held, that there was no re-
signation of the office of director by C.; that
the transfer of the shares was invalid; and
that C. was liable to be put on the list of contri-
butories.—Ex parte Kennedy, 1 I. Jur. N. S.
446. (R.)

6. A society for the purpose of granting
annuities and other benefits to the widows of
members, enrolled rules in pursuance of the
Friendly Societies Acts. One rule provided
that all payments to be made to the widow of a
member should be paid to herself only, or to
her order, and to no other person. Another
rule provided that all matters in dispute be-
tween the society and any individual member,
or any person claiming on account of any
annuitant, should be referred to arbitration.
The society was afterwards incorporated by a
private Act, which gave the society power to
make bye-laws so far as applicable. The
society adopted the former rules as bye-laws.
The widow of a member became entitled to
an annuity, and subsequently took the benefit
of the Insolvent Debtors Act. On cause peti-
tion by her assignee against the society—Held,
that the restriction on alienation was inope-
rative.

That the provision of the Friendly Societies
Acts had ceased to apply to the society, and
that the jurisdiction of the Court was not
ousted by the arbitration clause.—Drvine y.
Presbyterian Widows’ Fund Association, 5 I. C.
R. 1. (C.) i

7. A director of a Joint-stock Banking Co.
assigned to another director a number of
shares, at a price far above the market price
of the shares, which were unsaleable. The
price was paid; but the transfer was not made
with the formalities required by the partner-
ship deed. Held, that it was invalid, and that
440 [JOINT-STOCK

the transferror was rightly placed on the list
of, contributories inxrespect of his shares.—
Ex parte Kennedy, 61. C. R. 121. (R.)

IV. Actions anp SuITS BY AND AGAINST
STRANGERS AND JOINT-sTOCK CompPa-
NIES; OR BY AND BETWEEN THEM AND
THEIR MEMBERS.

1. An Act incorporating an Insurance Co.
provided that actions against the Co. should
be brought against the secretary, but that
execution might issue against any members,
who should be reimbursed out of the funds of
the Co. “all such damages, sum and sums of
money, costs, charges, and expenses, as by the
event of anysuch proceedings he or they should
be put unto or become chargeable with.” A
judgment was obtained against the secretary.
Execution issued against ptf. as a member of
the Co. He resisted it unsuccessfully, and
incurred costs. Held, that ptf. was entitled
to be reimbursed, not merely the sum paid by
him on foot of the execution, but also all
those costs.

The Master, after stating that the Com-
pany’s funds actually in hands amounted to
£1200, found that that sum and other con-
tingent funds of the Co., when and so far as
they should be realised, were properly appli-
cable to paying ptf’s.demand. On exceptions
to the report—Held, that since there were
not before the Court any creditors of the Co.,
and it did not distinctly appear whether there
were any, the ordinary principle, in partner-
ship, that neither the partnership nor the
‘individual debtor can claim in competition
with the creditors, did not apply; and there-
fore that the Master’s report should be con-
firmed in the above particulars.—A/‘Owen v.
Hunter, 1 Dr. & Wal. 847. (C.)

2. The Bankers Act, 33 G. 2, c. 14; is not
repealed by the 6 G.4, c. 42. Therefore, upon
the stoppage of payment by a Joint-stock
Banking Company formed under the latter
Statute, a trust-is created in favour of the
creditors, and affecting all the property of the
shareholders—under the Bankers Act, which
may be administered by this Court, at the
suit of any creditor against the public officer
of the Company, instituted without making
the other creditors or the shareholders par-
ties; it being stated in the bill that the co-
partnership assets are sufficient to discharge
the liabilities of the Company, and it not
appearing that the shareholders have any
other liabilities than those of their co-part-
nership.—Faweett v. Hodges, 3 I. E. R. 232;
Flan. & K.100. (R.)—[Overruled, 21. Jur.
N.S., 469. (GH. L.); 6 H. Lds. Cas. 142.]

3. The 33 G. 2, c. 14, applies to Joint-stock
Banking Companies registered under 6 G. 4,
cv. 42; and creates a trust for the creditors
when the bank stops payment. A creditor,
who makes a proper case for relief, cannot be
refused that relief to which he is entitled in
virtue of the trust.—Acheson v. Hodges, 3 I. E.
R. 516. (R.)

 

COMPANIES.]!

4, A petition was filed against the public
officer and several directors of a J. 8. Bank,
who all resided out of the jurisdiction, for a
discovery in aid of a defence to an action at
law by the public officer against the plaintiff,
and for an injunction to restrain the action. °
The injunction was refused because the di-
rectors were not parties to the record at law,
and an admission by them would not be evi-
dence against the plaintiff at law.

Semble—The residence of the directors
abroad, and the want of power to compel a
discovery from them, would be sufficient ground
for refusing the injunction.

The exception that members of a Corpora-
tion may be parties to a bill of discovery,
though they have no personal interest, does
not apply to members of a J. S. Co. who sue
and are sued by a public officer.—Hendrie v.
Thompson, 1 I. C. R. 278; 31. Jur. 87. (R.)

5. A judgment obtained against the public
officer of a Joint-stock Banking Co., on which
an execution has, upon a sci. fa., been awarded
against one of the members, may be registered
as a mortgage, under the 13 & 14 Vic., c. 29,
against the property of that member. The
affidavit for the purpose of registration may
properly be entitled both in the original ac-
tion and in the scz. fa. proceeding. —Carroll
y. Scully, 71. C. R. 239; 2 1. Jur. N.S. 252.
(C)

6. A creditor having obtained a judgment
against the official managerof a Banking Co.,
registered an affidavit of the judgment against,
the real estate of a former shareholder in the
Co., without having issued a sci. fa. against
him. Held, that a Court of Equity ought to
give relief against such registration of the
affidavit, as being a cloud on the shareholder’s
title to his lands.—Hone v. O' Flahertie, 9 I. C.
R. 119; Dr. Rep. temp. Napier, 505. (C.)—
[Affd.: 91. C. RB. 497. (C.A.)]

 

JOINT-STOCK COMPANIES WINDING-
UP ACT, 1848, 11 & 12 Vic., c. 45.
I. ConstTrucTION AND APPLICATION OF THE
Act.
II. OnpER FoR WINDING UP.
III. Contrivurories.
1. Who are liable to be made.
2. Who are not so liable.
FV. Orricta, Manacer.
V. PRACTICE.
1. In general.
2. Proceedings before Master.
8. Service of Petition.
4. Notice to Contributories.
[Bankers Act, 6 G. 4, c. 42; Joint-stock
Companies Winding-up Acts, 1848 and 1849 ;
The Companies Act, 1862; 25 & 26 Vic., c. 89.]

 

I. Construction & APPLICATION OF THE ACT.

7. P., owner of a mine, sold his interest in
it to a Joint-stock Co., for 5000 shares, to be
treated as having paid £1 upon each. Accord-
ing to an agreement between himself and the
directors, one-half of those shares were re-
transferred to the directors for their own be-
[JOINT-STOCK COMPANIES.]

nefit. The Co. was ordered to be wound up.
The directors, to whom those shares had been
transferred, were declared contributories in
respect of the shares as unpaid shares.

P., having retained some of the shares, was
declared a contributory in respect of them.
Some of the directors were unable to pay the
contribution in respect of the shares for which
they were so declared contributories. Held,
that P. was liable for their contribution.

That such liability could be enforced in a
proceeding under the Joint-stock Companies
Winding-up Acts.—£x parte Perrier, 71. C. RB.
256; 31. Jur. N. 8. 256. (C.)

1, To procure the winding up of a Mining
Company under the Winding-up Acts, one
shareholder filed a petition making several
charges of fraud against the directors (tending
to show that the company was not a bona fide
concern), and of trafficking in the shares, fa-
bricating reports, and neglecting to give the
petitioner, who was a shareholder, notice of
their meetings, and refusing him access to the
books, and that the mines had stopped work-
ing. The petition was verified in the short
form ; there were no other affidavits in support
of it. The directors, by their affidavits, in
reply, denied the charges, but did not produce

’ the books of the company, which the petitioner
relied on to support the petition. Under these
circumstances, and the directors agreeing to
give the petitioner an opportunity of inspect-
ing the books, the petition was directed to
stand over to enable the company either to
continue the works, or to discontinue them,
and wind up the company, if the shareholders
should so determine ; reserving liberty to the
petitioner to apply to the Court if so advised.
Petitioner to pay to the directors, who ap-
peared on the motion, their costs of such
appearance, but reserving the question of costs
generally.

When a Mining Company keeps all its offices
and books in England, but works mines in
Ireland the Court of Chancery in Ireland has
jurisdiction, under the Winding-up Acts.—
Hoare v. Hibernian Mining Co. 11. Jur. N.S.
228. (R.)

II. OrpER FoR WINDING UP.

 

IIL. 1. Contributories, who are liable to be made.

2. A director of a Joint-stock Banking Co.
assigned to another director a number of
shares, at a price far above the market price of
the shares which were unsold. The price was
paid, but the transfer was not made with the
formality required by the partnership deed.
Held, that it was invalid, and that the trans-
ferror was rightly placed upon the list of con-
tributories in respect of his shares.—Ex parte
W. Kennedy, 6 I. C. R. 121. (R.)

'

 

Ill. 2. Who are not liable.

3. The proper test to apply, in considering
whether a party should be retained on the list
of contributories, under the J. S. Co. Wind-

 

441

ing-up Acts, is not whether he would be
liable to the creditors of the bank, if sued
by them, but whether, having regard to the
rights of the shareholders inter se, he ought to
be on the list.

A party may be liable at law to the cre-
ditors of the company, and yet should not be
placed on the list of the contributories; and
vice versa, a party may not be liable at law to
the creditors of the company, and yet ought
to be placed on the list.

The deed of partnership of a J. S. Bank
provided that A., B., and C. should be the
then present directors; should constitute the
then Court of Directors of the Co.; and that
C. should be the managing director. It also
provided for the meeting of the directors at
specified times; that three directors should
be necessary to constitute an ordinary, and
five to constitute an extraordinary Court of
Directors ; that the Court of Directors should
act in strict conformity with the provisions of
the deed, unless altered at a general meeting;
that as to such of the shares as had not been
then subscribed for, it should be lawful for the
Court of Directors to sell them for the best
price that could be got; and that the price
paid for each such share, whatever the same
might be, should be accepted by the Court of
Directors in satisfaction of the sum which
ought to have been paid for such share if it
had been originally subscribed for; that no
person purchasing any share from the Court
of Directors should be considered approved
of by the Court as fit to be proprietor of such
share until he should have paid down the price
required for them, or so much of the price as
should be ‘required to be paid at the time of
taking such share ; and upon his making such
payment, the Court of Directors should cause
his name and residence to be entered in a
book called the “ Share Register Book,” as
the proprietor of such share; that the ap-
proval‘of two directors should be necessary
to every transfer ; and that the question whe-
ther the transferree was a person to be ap-
proved of should be taken into consideration
at a Court of Directors. A. and B. having
ceased to be directors, and C., being at the time
the only director, issued a number of shares,
and entered them in the Share Register Book
in the name of F., without his knowledge, and
debited him in the books of the bank for the
price of them. G. having been induced by a
false and fraudulent report, prospectus, and
balance sheet to become a purchaser of some
of these shares, as old appropriated shares,
they were transferred to him by F. G. re-
ceived a dividend, and was returned to the
stamp-office as the proprietor of those shares.
—Held, that the issue of the unappropriated
shares, being a violation of the partnership
deed in a matter of substance, was null and
void; and therefore G. was not a proprietor
of any shares, and should not be placed ‘on
the list of contributories.

That, supposing C. to have been the agent
of the existing shareholders, and to have had
authority from them to issue the unappropria-
ted shares, G. having entered into the contract
by reason of the fraud and misrepresentation

56
442

of C., the existing shareholders could not en-
force it against him by retaining him as a
contributory.

Although a director is not the agent of the
shareholders to commit a fraud, if they adopt
and seek to enforce a contract entered into
by him as their authorised agent, they cannot
repudiate a fraud committed by him which
led to the contract, and was immediately con-
nected with it—zx parte Ginger, 5 I. C. R.
174; 11. Jur. N.S. 873. (R.)

1. Liability to creditors is not the test of
contribution under the Joint-stock Compa-
nies Winding-up Acts, 1848, 1849. Therefore,
where the partnership deed of a J. S. Bank
provided that the transferror of shares should,
from the date of the transfer, have no claim or
demand whatsoever, either at law or in equity,
upon or against the society, or any of the pro-
prietors thereof for the time being (other than
the transferree), except for dividends declared
previously to the transfer, and on payment of
any further instalment or instalments which
might have been previously called for, should
be for ever discharged from all further liabili-
ties and obligations in respect of the shares
transferred, and from all further claims and
demands on account of the same—Held, that
shareholders who had transferred their shares
bona fide and for value, should not be placed
on the list of contributories, although they
were still liable to the creditors of the bank;
the three years from the transfer within
which creditors might proceed against them,
under the Bankers Act (6 G. 4, c. 42, s. 9),
not having expired.

The Master placed the name of an original
shareholder, who had transferred his shares,
on the list of contributories as a qualified
contributory. The shareholder moved, by
way of appeal, that his name should be omit-
ted from the list. The official manager did
not appeal. Held, that the latter could not, on
the hearing of the appeal motion, contend
that the transfer was informal, and that the
shareholder’s name should be placed on the
list as a contributory, without any qualifi-
cation.—Lx parte Stirling, 6 I. C. R. 180; 2
I. Jur. N. §. 403. (C.A.)

2. A. agreed to sell his share in a J. S.
Bank to B., at par, the shares to be trans-
ferred by A. to C., who was to hold them
as trustee for B., but charged with the pur-
chase-money and interest at £5 per cent.,
payable half-yearly until the principal was
fully paid. C. agreed to hold the shares upon
the trusts. The shares afterwards were trans-
ferred by A. to C. by deed, but the deed of
settlement required a notice of all proposed
transfers to be left at the oftice of the direc-
tors, which was not done. The assignment
not having been registered when the first
dividend after the transfer became due, A.
received it, and retained the surplus, after
payment of the interest of the purchase-
money of the shares, on account of another
debt due to him by B. A subsequent divi-
dend was received by C., and paid over by
him to A., who appropriated it as he had

 

[JOINT-STOCK COMPANIES.—JOINTURE.]

done the former dividend.—Held, that A.
had ceased to be owner of the shares, and
was not properly included in the list of con-
tributories—x parte Scully, 6 1. C. R. 524;
21. Jur. N. S. 450. (C.)—[Reversing Rolls
decision, 6 I. C. R. 72; 1 I. Jur. N.S. 424.

(R.)]

 

IV. OrricraL Manacer.

V. Practices.

1, In general.

2. Proceedings before the Master.
3. Service of Petition.

4. Notice to Contributories.

 

J OINT-TENANTS & JOINT-TENANCY.

See Estates, VI.—Pizapine, Partres—Prac-
tick, RECEIVER.

 

JOINTRESS.
See JOINTURE.

 

JOINTURE.

I. GENERALLY: ITS VALIDITY—WHEN A BAR
to DowEr.
II. Its IncrpeEnts.
Ill. Jomrress, 1oR Riguts—How FAVOURED
in Equity. ;
IV. How Lost oR FORFEITED.

 

I. Or JomnTuRE GENERALLY: ITS VALIDITY:
WHEN A BAR TO DowER.

3. Lands, the property of A., held under
leases for lives renewable for ever, and long
terms for years, were, upon the marriage of
A. with B., conveyed upon trust to pay the
yearly rents, &c., to A. for life, so long as he
should continue solvent and able to support
and maintain B., and no longer; and from and
after his death, or his becoming insolvent,
failing in his trade, or being unable to sup-
port B., to pay the rents, &c., to B., for life,
for her sole and separate use. Held, that this
settlement did not bar B.’s right to jointure
out of fee-simple estates acquired by A. since
his marriage—Fyan v. Henry, 2 Dr. & Wal.
556. (C.)

4, A marriage settlement provided that a
deficiency in a jointure of £200 should be
charged on X. and Y.; and declared that un-
til the death of A. (tenant for life of Y.), this
should be borne exclusively out of X., and no
part out of Y.; but after A.’s death, X. should
be released from all future payments, and it
should be borne out of Y. and not out of X.
It appearing from the entire settlement that
the intention was to secure the £200 jointure,
at all events, the deficiency was Held charged
on both X. and Y. at the same time, and this
declaration was confined so as only to affect
the arrangement between the two estates
themselves.—Sullivan v. S. 7 1. E. R. 453;
1 Jon. & L. 678. (C.)
Generally.

1. A marriage settlement provided that a
deficiency in a jointure should be charged on
X. and Y.; and declared that until the death
of A. (tenant for life of Y.), this deficiency
should be borne exclusively out of X., and no
part out of Y.; but that after A.’s death, X.
should be released from all future payments
thereof, and the deficiency should be borne
out of Y. and not out of X. From the entire
settlement it appeared that the intention was
to secure the jointure at all events, and there-
fore the deficiency was held charged upon both
X. and Y. at the same time. Nevertheless, as
between X. and Y., Held, that Y. should be
wholly exhausted to indemnify X., before X.
was resorted to.

V., having two estates, X. and Y., limited
both to himself for life; then to secure a
jointure charged on X. until A. died, and then
on Y., with power to remove the charge from
both by giving other security ; then as to X.,
to the issue of the marriage in settlement ; and
as to Y., to himself and his heirs. V. cove-
nanted to charge £3000 for children’s portions,
and that that sum should be the first charge
on all property of which he should die seized
or possessed, and should have priority over all
other charges thereon. Held, that the £3000,
not attaching on any property during V.’s
life, was at his death a charge on Y. only. and
was puisne to the jointure thereon.—Sullivan
v. S., 81. E.R. 685; 2 Jon. & L. 769. (C.)

2. By a marriage settlement, £400, the
wife’s fortune, was given to the husband, and
some terminable interests were conveyed by
his father to trustees to pay the wife, if she
survived, an annuity or “jointure” of £40;
and the husband covenanted that if these
properties should fail or be deficient, all the
real and personal estate he should die seized
of, &c., should be vested in the trustees to
raise £400, or buy an annuity of £40 for the
wife. Held, sufficient to bar her right to
dower.—Killen v. Campbell, 10 I. E. R. 461.

(C).

3. A power was given by will to successive
tenants for life to limit a rentcharge “ for any
woman or women whom they may respectively
marry,” by way of jointure and in bar of dower,
“to be in proportion to the marriage portion
they shall respectively receive with their re-
spective wife or wives; 7. ¢., £100 jointure for
every £1000 they shall so actually receive as
a marriage portion with their respective wife
or wives, if they shall so think fit,” not to
exceed £500; “such grant, limitation or ap-
pointment to be made either before or after
marriage.” Held, that the wife of a tenant
for life, who afterwards came into possession,
but who had been married previous to the will
was not an object of the power, there being no
grounds from the rest of the will for giving a
past meaning to the words of futurity.

Semble—That money of the wife which had
been settled to her separate use, with remain-
ders to the husband and children of the mar-
riage, was not “received” by the husband
within the meaning of the power.—Dillon v.
D,, 111. E. R. 423. (C.)

[JOINTURE.]

 

Incidents of. 443

4. C., by marriage settlement, granted a
jointure to B., his intended wife, in lieu of all
dower or thirds which B. “ might receive out of
his lands.” C. was tenant in tail of the lands
on which the jointure was charged. The set-
tlement was not enrolled. C. died without
issue, and without having barred the entail.
The remainderman in tail entered, and refused:
to pay the jointure. Held, that B. was not enti-
tled to dower, although the jointure failed. —
Cooper v. C., 61. C. RK. 217. (C.)

5. By a marriage settlement, two sums of
£1000, one the property of the husband, the
other that of the wife, were vested in trust to
pay the interest from time to time, as received,
or to permit the wife to receive and take
“the two several sums of £1000, respectively,
and all interest, benefit, and advantage arising
or to arise therefrom,” to her separate use,
“said two several sums to be so received and
taken” in full for her jointure, and in bar of
dower; and, if the husband survived her, to
permit him, during his life. to receive said two
several sums, and all interest, &c., derivable
therefrom, with power of appointment of said
two several sums among the issue of the mar-
riage to the husband; and, in default of ap-
pointment, to such issue in equal shares; and
in default of issue surviving at the death of
the husband, the sums were to be disposed of
as the husband should appoint. Provided
that when the husband should acquire property
in lands amounting to £200 a-year, -he should
settle a jointure of £200 a-year on the wife,
subject to the same limitations as the two
sums were declared subject to, it should be
lawful for him to receive the two sums for his
own use. There was no issue of the marriage
who survived the husband. He died before
the wife, without having settled any jointure,
or made any appointment of the fund. Held,
that the wife took only the interest of the
fund for her life.

That the husband was entitled to the interest
of the fund forhis life, with a general power
of appointment over the principal.

That no appointment having been made by
him, there was a resulting trust in favour of the
administrator of the husband as to £1000, and
a similar trust to the wife’s executor as to the
other £1000.—In re Lane’s Trusts, 14 I. C. R.
523. (R.)

 

II. Its Incrpents.

6. On the husband’s death, the remainder-
man refused to pay the jointure, and the
widow refused to pay an annuity which she
had agreed with her husband to pay to a
creditor. During the widow’s life it was not
attemnted to enforce either. Held, that her
executrix might sustain a bill for payment of
arrears of the jointure, though the testatrix
had not performed her part of the contract
by paying the annuity Baldwin v. Roche, 5 I.
E. R.110. (E.E.)

7. P., seized for life of B., with a power
of jointuring to the extent of one-third of
the clear yearly rents and profits thereof ;
444,

and also seized in fee of W.; by marriage
articles reciting that he was seized of B.,
without specifying for what estate, charged
B. with a jointure of £500 a-year, with the
usual power of distress. The articles pro-
vided that if such distress on B. should prove
ineffectual, the jointress should in that event
enter upon and distrain W. for arrears of the
jointure. The £500 a-year exceeded one-
third of the clear yearly value of B. The
jointure became in arrear ; a distress upon B.
proved ineffectual. Held, that W. was liable
to the difference between one-third of the
clear yearly value of B. and the £500 a-year.—

Locke v. Darley, 2 Dr. & War. 256; 1 Con. &
L. 406. (C.)

 

Ill. Jorwtress: wer Ricuts:
FAVOURED IN Eaurry.

1. A., by will, made ample provision for his
wife, by giving her an annuity charged upon
his general estates ; and by devising to her a
portion of his fee-simple. A. disposed of all
the rest of his property, giving to trustees a
power of leasing the whole. Held, that the
widow was bound to elect, and was not en-
titled both to dower and the provision made
by the will—Hall v. Hill, 4 1. E. R. 27; 1 Dr.
& War. 94; 1 Con. & L. 120. (C.)

HOW

2. Tenant for life, with power to jointure,
married without exercising it. His wife was
seized of real estate for life. On her mar-
riage it was settled to the husband’s use for
their joint lives; remainder to the wife for
life. The husband became indebted, and
agreed with his wife and his creditor, to exer-
cise the jointuring power in her favour; and
that she should grant the creditor an annuity
for her life (equal in amount to the jointure),
charged upon her estate, and payable upon
his death. He was then so ill that his life
could not be insured. The agreement was
carried into execution. Hesoon died. Heid,
that the execution of the potver was not a
fraud upon the remainderman.

On the death of the husband, the remain-
derman refused to pay the joiniure, and the
wife refused to pay the annuity. No attempt
was made during her life to enforce payment
of either. Held, that her executrix might
sustain a bill for payment of the arrears of
the jointure, although the wife had not per-
formed her part of the contract by paying the
annuity.

A power of jointuring is given for the
purpose of enabling the husband to contract
matrimony upon advantageous terms, and
with a person of suitable fortune. It, in it-
self, contemplates a purchase. There is,
therefore, no objection to an arrangement
between a husband and wife, mutually stipu-
lating with respect to their properties iu the
same way as they might have done before

marriage.—Baldwin v. Roche, 5 I. E. R. 110.
(EE.)

3. A. entitled to a jointure of £480, charged
on lands producing only £240 a-year, went
into possession of the lands in 1800. In 183

 

[JOINTURE.—JOINTRESS.—J UDG MENT. ]

the rental was increased so as to leave a large
surplus after paying the jointure; and she
continued in possession. Held, that the Sta-
tute of Limitations did not apply, and she was
entitled to the entire arrears accumulating
from 1800.—Battersby v. Rochfort, 10 I. E. R.-
439. (C.)

IV. How Lost or ForFeiteb.

 

‘ JUDGE.

 

JUDGMENT CREDITORS.
See Destor anp Crepiror, III.

 

JUDGMENT AT LAW.
See VERDICT AND JUDGMENT.

 

JUDGMENT.

— As to Speciality Creditors in general—See
Desror & Crepitror—See Dervs, [V—
Morreacse, 1V—Practice — Ingunc-
TION — PracticE, Suppa@na—PRIORITY
or S&cuRITY.

[See 3& 4 Vic. c. 105, making judgments
charges on land; 7 & 8 Vic., c. 90, as to regis-
tration ; 13 & 14 Vic.,c. 29, and 21 & 22 Vie.,c.
103, as to registering as a mortgage. In Bank-
tuptcy, 12 & 13 Vie., c. 107, sec. 108, and 11
& 12 Vic., c. 48, as to releasing portion of
land from the judgment.

I. GeneraLty: as To Notice or DocKkert-
ING, REGISTERING AND RevIvING.
I. Irs Errect—vuron wHom BINDING.
III. Revier aGAINst Iv.
IV. Remepies 1n Equity.
V. Recistry or, as A MorTGaGeE.
VI. Revivor or. See Jupement, I.

 

I. JUDGMENTS GENERALLY: Notice oF RE-
DOCKETING, DocKETING, REGISTERING
AND Revivina THEM.

4. Two judgments, for like penal sums, and
against the same defendant, were obtained by
different persons on the same day, and in the
same Court. The sum reported due on foot
of one judgment was greater than that on the
other. The fund was insufficient to pay both.
Held, that it should be divided between the
judgment creditors in proportion to the sums
reported due to them.— Woods v. Davis, 2 Jon.
815. (E.E.)

5. A judgment entered within twenty years
before the passing of the 9 G. 4, c.35, and not
revived or re-docketed since its entry, or
within five years after that Act passed, does
not thereby lose its priority over a subsequent
conveyance executed before that Act passed.—
Blake v. Darcy, 8. & Sc. 493. (R.)

6. A. commission of bankruptcy issued
against A., and the assignee entered into pos-
[JUDGMENTS

session of A.’s estate. In 1793, A. became in-
debted by judgment to C.; and devised all his
real and freehold estates to B., and his heirs,
upon trusts, and charged with his debts and
legacies. The defendant, who was heir-at-law
of the assignee, had continued in possession of
the lands, and after the institution of a suit
against him by the devisees of A., to recover
possession of those estates, puchased them
from the persons beneficially entitled under
A.’s will, subject to the incumbrances affect-
ing them, and obtained a conveyance of them
in 1825. The judgment of 1793 had not been
revived or redocketed within five years after
the passing of the Redocketing Act. Held,
that the trust to pay debts prevented the
judgment being barred under the Redocket-
ing Act.—Cockburn v. Warner, Longf. & T.
443. CEE.)

1. Debts secured by judgment are “sums of
money charged upon or payable out of lands,”
within the 3 & 4 W. 4, c. 27, s. 42.

Semble—Interest on judgments under the
3&4 Vic., c. 105, s. 26, is within the limita-
tion of the 3&4 W. 4, c. 27,8. 42.—Henry v.
Smith, 4 I. E. R. 502; 2 Dr. & War. 381; 1
Con. & L. 506. (C.)

2. Semble—That when a judgment has been
assigned within a year after its revival, the
assignee may, within the year, sue out execu-
tion upon it, without reviving it in his own
name.—Fitzgerald v. Dalton, 4 I. E. R. 697;
Longf. & T. 662. (H.E.)

3. In 1796, J. confessed a judgment for
£400. In 1823, it was revived against his
heir and terre-tenants. In 1838, it was again
revived, and the revival docketed under the
9 G. 4, ¢. 85; but’was not revived or redocket-
ed within five years after the passing of that
Act—i. ¢., from 27th June 1828, to 27th June
1833. In 1829, the heir executed a mortgage.
Held, that as the original judgment was ob-
tained more than twenty years before the pass-
ing of 9 G. 4, c. 35, and was not revived or
redocketed within five years after the passing
thereof, it was null and void as against the
mortgage.

That neither the revival in 1823, nor that in
1838, could be considered as a “judgment re-
covered and entered,” within the meaning of
the 9 G. 4, v. 385; the judgment thereby in-
tended being one which may be revived or
redocketed—7. e., an original judgment.—
Stewart v. Cottingham, 6 I. E. R. 248. (R.)

4. A judgment was obtained against A., in
M.T.1818, within twenty years before the pass-
ing of the 9 G.4,c. 35. After the passing of
that Act, on the 1st of April 1831, A.mortgaged
his estate. The judgment was not revived
or redocketed until T. T. 1840. Held, that
under the second sec. of that Act, the judg-
ment was void as against the mortgagee.

This construction does not affect the first
sec. of the Act, and the practice of redocket-
ing judgments immediately after their entry
is unnecessary and improper.

 

 

GENERALLY.] 445

The case of Knox v. Kelly, 1 Dr. &} Wal.
542, commented on.—AHickson v. Collis, 6 1. E.
R. 524; 1 Jon. & L. 94. (C.)—Reversed :
Hickson v. Collis, 10 1. E. R. 447. (C.)

5. The costs of unnecessarily redocketing
judgments not to be allowed.—Macken v. New-
comen, 71. E. R. 114. (C.)

6. Ex parte proceedings, under the Sheriffs
Act, for the appointment of a receiver are not
a lis pendens which would affect a purchaser
with notice of the judgment.—Tennison v.
Sweeny, 71. E. R. 511; 1 Jon. & L. 710. (C.)

7, A judgment was obtained in 1817. By
a consent in causes in 1833, it was admitted
that the amount of the judgment and of seve-
ral others was due. It was ordered that the
receiver should be continued to keep down
the interest, and that the creditors should not
proceed on their judgments for eight years, if
the interest was paid. In 1834, J. by his
solicitor, D., filed a bill referring to the con-
sent, and in 1837 took a mortgage of the
estates from the heir of the judgment debtor;
D. still acting as his solicitor. Held, that J.
had notice of the judgment of 1817.

That though the judgment had not been
revived or redocketed (nor registered under
the recent statute), the mortgagee, having
notice of it took subject'and puisne to it.—
Beere v. Head, 8 I. E. R. 647. (R.)—[Re-
versed: 9 J. E. R. 76; 3 Jon. & L. 340. (C.)]

8. A judgment creditor having obtained a
receiver under the Judgment Acts, over lands
of his debtor, may, after the lapse of more
than a year, get a receiver under the Acts
over other lands of the debtor, without re-
viving his judgment.— Clendinning v. Oranmore,
91. E.R. 150. (R.)

9. The Docketing Acts, 7 W. 3, c. 13, and 3
G. 2, c. 7, apply only between purchasers and
judgment creditors, and give no priority to
judgments inter se.—Abbott v. Stratton, 9 I. E.
R. 235 ; 3 Jon. & L. 609. (C.)

10. A judgment creditor having in 1836 ob-
tained a conditional order for a receiver, a
consent order was made in 1837 that the re-
spondent should pay the debt by instalments,
and in default, that a receiver should be
appointed. Upon default in 1846, the cre-
ditor presented a petition to extend a re-
ceiver appointed in the meantime in the
matter of a puisne creditor. Held, that the
petition was a continuation of the original
petition, and that it was not necessary to re-
vive the judgment.

Held, also, that the application should pro-
perly be by motion.—Dyas v. Cruise, 9 I. E.R.
256. (R.)

11. A revived judgment retains its priority
against purchasers subsequent to the judg-
ment but prior to the revivor.

It is not necessary, in order to affect a re-
mainderman by the revivor of a judgment,
that he should be served with the sci. fa. It
446 [JUDGMENTS

is sufficient if the tenant for life is served.—
Franks v. Mason, 9 I. E. R. 358. (C.)

1. The judgment of revivor is conclusive in
proceedings under the Judgment Acts ; but, if
it be impeached, the Court will not distribute
the funds until the adverse party has had an
opportunity of trying his right—JZord Clon-
curry v. Piers, 91. E. R. 407; 3 Jon. & L. 573.

(C.)

2. A. obtained a judgment in 1789, against
B., and died in 1792, having devised one de-
nomination to C. and another to D. In 1796,
C. married, and settled his denomination. In
1828, A.’s executors revived the judgment
against C., the heir, andterretenants ; issuedan
elegit; and obtained a finding thereunder be-
fore the 9 G. 4, c.35; but were prevented from
getting into possession by a prior creditor’s
proceedings. The judgment was not revived or
redocketed within five years from the passing
of that Act. Within twenty years from 1828,
a bill was filed against D., against E., who
claimed under the settlement of 1796, and
against others. Held, that notwithstanding
the revival, elegit, and other proceedings there-
under, no possession having been obtained,
the 9 G. 4, c. 35, s. 3, barred ptf. as against E.;
that the judgment creditor (having a legal
right, and proceeding against his debtor’s legal
estate), did not, by his omission to redocket,
which exonerated one denomination and cast
the whole debt upon the other without afford-
ing it a right of contribution, lose thereby his
right to go against it for the whole debt;
and that no equity could restrain him to the
amount to which that denomination was
originally liable—Ryan v. Cambie, 9 I. E. R.
376. (E.E.)

3. An insolvent’s assignee is not a pur-
chaser within the meaning of the Acts for Re-
docketing or Registering Judgments.—Baylee
v. Browne, 10 I. E. R. 180. (R.)

4, A judgment less than twenty years old
when the 9 G. 4, e. 35, was passed, and not
redocketed within five years after the Act, or
twenty years after its entry, is, as against pur-
chasers both before and since the Act, but
claiming under deeds within twenty years of
the entry of the judgment, valid by the opera-
tion of the 7 & 8 Vic., c. 90, s. 7, whatever be
the true construction of the 2nd sec. of the
Redocketing Act.

The practice of giving priority to costs of
resisting claims in creditors’ suits observed
on.—Carroll vy. Darcy, 10 I. E. R. 321. (C.)

5. A judgment obtained on a receiver's re-
cognizance does not bear interest under 3 & 4
Vic., c. 105, s. 26.—Feely v. Kilkenny, 10 I. E.
R. 423. (R.)

6. The pendency of a suit has no effect in
preventing the operation of the Redocketing
Act, 9 G. 4, c. 35, against judgment creditors
proving their demands under the decree; and
therefore in a suit to raise a mortgage of
1810, instituted in 1811, and revived in 1841,

 

GENERALLY.]

it was Held, in 1848, that judgments entered
between 1800 and 1810, but not redocketed
within five years of 1828, were void as against
the mortgage.

The practical application of Lord Redes-
dale’s classification of bills observed on.—
Bennett v. Bernard, 10 I. E. R. 584. (C.)

7. Since the 3 & 4 Vic., c. 105, judgments of
the same Term, entered after its passing,
have priority inter se as charges on lands, ac-
cording to the true dates of their entries.

Quere as to the priority znter se of such
judgments entered before the passing of that
Act.— Borough v. Williamson, 111. E. R.1. (C.)

8. A. obtained a judgment in T. Term 1845.
B. obtained a judgment in T. Term 1846. A.
sued out an elegit, the inquisition on which
was returned and filed on the 20th July 1846 ;
and went into possession of the lands ex-
tended. B.’s judgment was registered in Sept.
1846; A.’s in February 1847. Held, that A.’s
judgment had priority.

Semble—The registration of a judgment
under the 7 & 8 Vic., c. 90, gives no priority
as between judgment creditors, except for the
protection of heirs and personal representa-
tives in the administration of assets.—O’ Brien
vy. Scott, 11 I. E. R. 63. (R.)—[On appeal, the
Court offered to send a case to a Court of Law;
ibid, 459. (C.)]

9. The saving in the 22nd sec. 3 & 4 Vic., c.
105, of the rights of incumbrancers prior to
the lst Nov. 1840, is solely for their pro-
tection. In a suit by a judgment creditor for
a sale of the conuzor’s lands in his lifetime,
he cannot rely on the existence of such in-
cumbrances if their owners do not object.

Semble—This Court will sell an estate sub-
ject to incumbrances.—Kieran v. Corr, 11 I.
E.R. 514. (C.)

10. Judgments were obtained in 1738, against
G., who was seized of the lands of A.and X. In
1786, X. was conveyed to a purchaser. In
1840 the judgments were revived against the
heir of G. and the terre-tenants of A—
Heid, that the revivor did not give a new
present right against X. to save the bar of the
Statute of Limitations.

Interest on judgments was paid by those
entitled to A., until 1805, when the judg-
ments were assigned to a trustee for B.
and M., who were tenants for life of A.
No interest was actually paid from 1805 to
1837, when the judgments were again assigned,
and interest paid on them until 184]. Held,
that B. & M. being the parties bound to
pay the interest, and also beneficially entitled
to it, there was, in contemplation of equity, a
payment of interest from 1805 to 1837, which
saved the bar of the statute as against X.—
Kirkwood v. Lloyd, 11 I. E. R. 561. (R.)—
[Varied on appeal; 121. E. R. 585. (C.)]

11. Arevivor against the heir of the conuzor
of a judgment and the terre-tenants of one
estate of which he had been seized does not
(JUDGMENTS

keep the judgment from being barred by the
Statute of Limitations, as regards the owners
of another estate which had been previously
sold by the conuzor.

A judgment was assigned to a trustee for
the benefit of the tenants for life in possession
of the lands charged with it, who, in 1817,
caused the trustee to declare a trust for the
daughter of one of them, with provisoes that
no proceedings should be taken on the judg-
ment until the latter attained age or married,
and that it should not be called in until the
other tenant for life died. Held, that up to
1817, the same person being the hand to pay
and receive the interest, amounted to a pay-
ment of it, so as to prevent the Statute of
Limitations applying, but that it began to run
in 1817.

The unreported case of Executors Cummins
v. Finn, deciding that a judgment being held
in trust for the person in possession of the
lands charged may be replied, as a retainer of
the interest, in answer toa plea of the Statute
of Limitations at law, cited and approved of.

A charge to pay interest on a judgment
made on property, by an owner of lands to the
judgment, is not sufficient to prevent the sta-
tute running in favour of the owner of other
lands originally charged with it; and though
the payment of interest by the one owner be-
fore the twenty years elapse would keep it
alive against the other, quere, if a payment
after the twenty years will set it up again ?

The question on an objection to title resting
on an old incumbrance is, whether it may be
binding on the purchaser; and therefore a
purchaser was discharged in consequence of
judgments more than sixty years old, against a
former owner of the estate, which were in
force against other lands, though the only
matter to keep them out of the Statute of
Limitations against the purchaser was doubt-
ful evidence of payment of interest nineteen
years before they would have been barred.—
Kirkwood v. Lloyd, 121. E.R. 585. (C.)-[Vary-
ing the Rolls Order; 111. E.R. 561. (R.)}

1. All judgments of the same Term, and of
the ensuing Vacation, recovered before 3 & 4
Vic., v. 105, have equal priority inter se.

The rule, that judgments of the same Term
are of equal priority inter se, applies to judg-
ments in the Exchequer and the other Courts
alike-—Smith v. Chichester, 12 I. E. R. 519.

(C.)

2. When a notice pursuant to the first order
under the 154th G. O. has been served, and
before the second order has been made, the
Court cannot continue the proceedings under
the Sheriffs Act.—Zawler v. Lowry, 1 I. Jur.
251. (R.) ;

3. In the administration of assets, judgments
rank inter se according to the time of their
entry upon the roll, under the 3 G. 2, c. 7 (Ir.)
—Burke v. Killikelly, 11. C.R.1. (C.)

4, The purchaser of lands from the conuzor
of a duly registered judgment, is liable to
have them extended by the conuzee’s repre-
sentative.

 

GENERALLY. ] 447

To a bill filed to raise the amount ofthe
judgment, it is no answer that the conuzor
named the conuzee as one of his executors.
In the absence of expressions in the will in-
dicating such an intention, that circumstance
does not operate as a release of the debt.—
Wiillcock v. Love; Love v. Willcock, 3 I. Jur.
49. (C.)

5. A judgment creditor bequeathed legacies,
and appointed the debtor executor. Held, that
as the judgment, though extinguished at law,
was subsisting in equity, it was capable of
being redocketed, and was within the provi-
sions of the 9 G 4, c. 35.

Notice of an unredocketed judgment will
not make it binding against a purchaser.

An unredocketed judgment is not only null
and void as against a subsequent purchaser
for valuable consideration, but also, in order
more effectually to work out the object of the
said Act, necessarily null and void as against
an intervening redocketed judgment.

Beere v. Head (3 Jon. & L. 340) approved
of.

Latouche v. O’Brien (10 I. EH. R. 112) ob-
served on.—Jn re Huthwaite, 2 I. C. R. 54; 41.
Jur. 61, (P.C.)—[See the exception to this
rule, Woodroffe v. Greene, 14 I. C. R. 224. (R.)]

6. The redocketing mentioned in the,7 & 8
Vic., c. 90, s. 2, is redocketing under the 9 G.
4, c. 35. A judgment creditor of T. Term
1840, before the former Act came into ope-
ration, lodged the affidavit with the proper
officer, and obtained a certificate that the
judgment was redocketed, but the officer
neglected to make the proper entry in the
book, as required by 9 G. 4, c. 35, so that
the judgment did not appear to be redock-
eted against one of the conuzees. Held, that
the creditor had lost his priority as against
subsequent mortgagees.

Registration under the 7 & 8 Vic., c. 90,
gives no priority to judgments inter se during
the lifetime of the conuzor. — M‘Afinn v.
M' Connell, 21. C. R. 609. (R.)

7. Neither the suing out of an elegit, nor
the appointment of a receiver on a judgment
not redocketed or revived, as required by the
9 G. 4, ¢. 35, will render it valid against a
subsequent purchaser for value.—ZJn re Judge,
31.C. RB. 152. (P.C.)

8. A judgment entered and docketed on
the 4th March 1837, is entitled to priority
over a subsequent purchaser of the 8th March
1837, although it was not redocketed under
the 9 G. 4, c. 35, nor registered under the 7 &
8 Vic., ¢. 90.—In re Irwin, 51. Sur. 1. (1.E.C.)

9. Two judgments having been lodged with
the officer for entry on the same day, the date
of entry was the same. Neither is entitled
to priority, although one appeared to be be-
fore the other on the roll. The fund. is
distributable moietively between them, the
judgments being for the same amount.—
Bowerman v. Massy; Norcott v. Massy, 6 I.
Jur. 113. (R.)
448 Generally.

1. The rule established by Huthwaite’s case
(2.1.,C. R. 54), that an unredocketed judg-
ment is null and void, not only as against a
subsequent mortgage, but also against an
intervening redocketed judgment, applies,
though the fund should be insufficient to
reach the mortgagee’s demand.—Jn re Lowe, 4
I. C. RB. 97. (P.C.}—[See the exception to this
rule, Woodroffe v. Gireene, 141. C. R. 224. (R.)]

2. A judgment was obtained on the 38rd
Dec. 1845. The conuzor died on the 19th
Jan. 1847. Another judgment was obtained
against the same conuzor on the 8rd Feb.
1847, after his death, and was registered
under the 8 & 9 Vic., c. 90, on the same day.
The judgment of 1845 was not registered
until the 22nd Nov. 1847. Held, in a suit to
administer the conuzor’s assets, that the judg-
ment of 1847 had priority over that of 1845,
as affecting the lands.— Revell v. Revell, 4 I. C.
R. 486; 11. Jur. N.S. 54. (R.)—[Affirmed;
51.C. R. 284; 11. Jur. N. 8.168. (C.)]

3. The 12 & 18 Vic., c. 107, s. 108, reduces a
judgment against a bankrupt to the rank of a
simple contract debt.—Jones v. Stokes, 2 I.
Jur. N.S. 42. (R.)

4, The “ Memorandum” required by the 7
&8 Vic., v. 90, s. 2 (Sugden’s Act), to be left
with the officer, upon the registration of a
judgment of revival, must contain the names,
place of abode, title, &c., of the plaintiff in
the original judgment.—Jn re Boate, 9 I. C.
R. 524. (C.A.)

5. A judgment recovered in 1819, and
never revived or redocketed, must be post-
poned, not only to the gales of a rentcharge
created by a judgment debtor in 1827, and
assigned in 1841, which accrued due after
that period; but to the arrears of it which
were then due, and which were included in
the assignment.— Walcott v. Smyth, 111. C.s
R. 266. (C.)

G. In the attorney’s affidavit, and the Re-
docketing Book, the attorney redocketing a
judgment under the 9 G. 4, ¢. 35, was de-
scribed as “J. N., of the city of W.,” instead
of his registered residence in Dublin. There
was no other practising attorney of the same
name. Held, that the redocketing was not
vitiated thereby, nor by the fact that J. N.
had not taken out his license when the judg-
ment was redocketed.— Woodroffe v. Greene,
121. C. R. 473. (R.)

7. In‘a marriage settlement, when the
lands settled are the property of the husband,
he cannot be considered a purchaser for value
of the life estate limited to him by the settle-
ment.

A., by marriage settlement, settled lands, of
which he was owner in fee, to himself for life,
remainder to provide a jointure for his widow,
remainder to the children. Held, that a judg-
ment which before the execution of the settle-
ment had been a charge on the lands, re-
mained a subsisting charge on his life estate,
notwithstanding that the judgment had not

[JUDGMENTS.]

 

 

Effect of.

been registered under the 7 & 8 Vic., v. 90,
within the time (viz., five years) required by
the 138 & 14 Vic. c. 29, s. 3, for keeping it in
force against purchasers under the settle-
ment.—Zn re Browne’s Estate, 13 I. C. R. 283;
71. Jur. N.S. 289. (C.A.)

8. The rule in Huthwaite’s case (2 I. ©. R.
54), that an unredocketed judgment is null
and void not only as against a subsequent
mortgage, but also as against an intervening
redocketed judgment, is not applicable when
the mortgagee makes no claim to the funds to
be distributed.

To a mortgage cause a receiver had been
extended, who continued in receipt of the
rents. Held, not within the operation of the
81st G.O. of 1843.— Woodroffe v. Greene, 14 I.
C. R. 224. (R.)

9. A prior unredocketed judgment is not
postponed to a subsequent redocketed judg-
ment in consequence of the existence of a
mortgage puisne to the redocketed judgment,
if the owner of the mortgage makes no claim
upon foot of it, even though his omission to
claim may happen in consequence of an
agreement with the owner of the unredock-
eted judgment made after the institution of
the proceedings in which the question was
raised.— Woodroffe v. Greene, 15 I. C. R. 176.
(C.A.)

 

Il. Errecr or JupGMENT; UPON WHOM
BINDING.

10. A., B.’s debtor, by deed in 1819, granted
lands to C. as a trustee for B., in considera-
tion of, and for the purpose of discharging
the debt, with powers specified therein; and
upon trust, after satisfying the purposes of
the deed, to recover and assign same to A.
B. died. C., his executor, as trustee and exe-
cutor, assigned to ptf. by deed of 1834 the
benefit of the deed of 1819, as forming part
of B.’s assets, upon trust to apply the amount
produced by selling it in paying B.’s creditors.
In pursuance of the deed of 1884, a bill was
filed against A.; and a decretal order was
pronounced, referring it tothe Master to take
the usual accounts. The Master reported that
B. was assignee of a judgment of 1811, against
A., which was void against ptf., a purchaser
for value under the deeds of 1819 and 1834;
the judgment not having been revived or
redocketed under the 9 G.4, c. 35. Upon ex-
ceptions—Held, that the Master was right in
postponing the judgment: that the deed of
1834 was one for value, within the 9 G. 4, c.
35: that the 9 G. 4, cv. 35, s. 2, applies to pur-
chases made before, as well as to those made
after that Act.—Knoz v. Kelly, 1 Dr. & Wal.
542; 11. E.R. 87, n.; 8. & Se. 512, n.
(C.)

11. The 9 G. 4, ¢ 35, 5. 2, was intended to
protect purchasers of freeholds for value,
whether those purchases were made before or
since the Act.—Martin vy. D'Arcy, 1 I. E. R.
84; 1 Dr. & Wal. 559, 7.; 8. & Se. 493. (C.)

12. A creditor by judgment, entered pursuant
[J UDGMENTS—THEIR EFFECT.]

to a warrant of attorney, obtained an order
for a receiver under the 5 & 6 W.4, ¢ 55,
more than two calendar months before the
issuing of a commission of bankruptcy against
the respondent, the conuzor. eld, that his
execution was protected by the 95th sec. from
the operation of the 6 W. 4. c. 14, s. 126.—
Read vy. Davis, 31. E. R. 153. (E.E.)

1. A judgment upon a bond in a penalty
conditioned for the payment of a principal
sum with interest, is “a sum of money charged
upon or payable out of land or rent,” within
the 3 & 4 W.4, c. 27,s.42. That Statute bars
the recovery of all arrears of interest thereon,
which have accrued due more than six years
next before the commencement of a suit in-
stituted after the 3lst Dec. 1833, to enforce
payment thereof out of the land or rent.

Semble—That the Statute is a similar bar
to the recovery of interest thereon, by a pro-
ceeding against the person or personal chattel
of the debtor.—O’Kelly v. Bodkin, 3 I. E. R.
390. (E.E.)

2. A judgment obtained before the 1st Nov.
1840—Held, not to operate as “a charge upon
the real,” &c., estates of a bankrupt within
the meaning of the 3 & 4 Vic., c. 105, s. 22.

That as regards such judgment, that section
does not repeal the 6 W. 4, c. 14, s. 125.—In
re Perrin, 41. E.R. 89. (B.)—[On appeal, ibid.
362; 2 Dr. & War. 147. (C.)]

8. A debt secured by judgment was, even
before the passing of the 3 & 4 Vic., c. 105, a
charge upon lands.—Rollestone v. Morton, 1
Dr. & War. 171; 1 Con. & L. 252; 4 L E.R.
149. (C.)

4, Entering judgment upon a bond puts the
security wholly out of the obligor’s control.—
Bateman v. Ramsay, 8. & Sc. 459. (R.)

5. Ptf.in a foreclosure suit obtained a judg-
ment against the mortgagor, who afterwards
died. The suit was revived against his heir
and personal representative. The Court re-
fused ptf.’s application under the 3 & 4 Vic.,
c. 105, to charge the surplus fund in Court
with the amount due on the judgment.
Wallace v. M‘Cann, 4 I. BE. R. 522; Fl. & K.
570. (R.)

6. A solicitor’s lien for costs, which became
due partly before and partly after the date of
a judgment, gives him priority over the judg-
ment, even respecting that portion of the
costs which became due after the judgment.—
FL. & K. 572. (R.)—[Revd., Blunden v. Desart,
2 Dr. & War. 405; 2Con.&L. 111. (C.)]

7. A judgment being in force against hus-
band and wife, the Court, by order under the
3 & 4 Vic., c. 105, s. 23, charged it on stocks,
vested in trust to pay, during the joint lives
of husband and wife, the dividends to the wife
for her separate use, free from her husband’s
control. The deed contained a non-anticipa-
tion clause; but provided that, notwithstand-
ing coverture, the wife should have power to

 

449

appoint the principal, subject to her husband’s
right to the dividends for life, if he survived
her; but if she made no valid appointment, the
principal was to be paid absolutely to him ; if
she survived, the principal was to be paid
absolutely to her. The order was made with-
out prejudice to her right to reccive the divi-
dends during their joint lives.—Carter_v.
Mahon, 4 I. E. R. 305; Fl. & K. 342. (B.)

8. A debt secured by judgment is a “sum
of money charged upon or payable out of
land,” within the meaning and application of
3&4 W. 4, c. 27,8. 42, And arrears of
interest for six years only, are recoverable
thereon.—Henry v. Smith, 1 Con. & L. 506; 2
Dr. & War. 381; 41. E. R. 502. (C.)

9. A judgment is not per se a charge upon
a benefice, but it becomes such from the time
that a sequestration is issued.— Wise v. Beres-
ford, 2 Con. & L. 282; 3 Dr. & War. 276; 51.
E. R. 207. (C.)

10. When a trader confessed a judgment,
and afterwards mortgaged lands affected by
it, and became a bankrupt—Held, that the
judgment creditor had no lien upon the lands;
his judgment was levelled by the bankruptcy.
White v. Baylor, 5 I. E. R. 400. (C.)

11. A judgment, void as against purchasers
by the 9 G. 4, c. 33, will not bind a purchaser
who takes subject to it.— Garnett v. Armstrong,
2 Con. & L.449; 51. E.R. 583; 4 Dr. & War.
182. (C.)

12. Semble—That judgments entered pend-
ing a suit for a sale do not bind the subject
matter of the suit in the hands of the purchaser
under the decree.—Massy v. Batwell, 2 Con. &
L. 413; 5 I. E. R. 382; 4 Dr. & War. 56.
[Barron v. Barron, cited 2 Con. & L. 418.]

13. In 1793, C. executed his bond with war-
rant, &c., and in 1799 devised his real estates
upon trust to sell and pay his debts; subject
thereto to his co-heiresses and their heirs.
C. died in Feb. 1804, and in March 1804 the
obligee in the bond caused judgment to be
entered upon it as of the preceding Term.
In 1826, C.’s co-heiresses, for value, conveyed
C.’s real estates, subject to his debts, to W.
and his heirs. The judgment was not re-
docketed or revived. Heid, that, neverthe-
less, it was a valid charge affecting C.’s real
estates in W.’s hands.—Cockburne v. Wright,
61.E.R.1. (&.E.)

14. Although before the conveyance the
purchaser has not either a legal or an equitable
right against the vendor till payment of the
price, yet for all purposes of disposition the
equitable estate obtained under the contract
is subject to his control; judgments obtained
against him are a lien upon it.—Baldwin v.
Belcher, 61. E. R. 424; 1 Jon. & L. 18. (C.)

15. A. being seized for life of estates X. and
Y., remainder to his son B. in tail, they both

57
450

joined in suffering a recovery, and conveyed
the estates to trustees as to X., in fee, on
trust to sell, and out of the proceeds to pay
incumbrances affecting the estates and debts
of A., and subject thereto to the use of A. in
fee; and as to Y., to uses which were revo-
cable. P. was a judgment creditor of A., but
neither he nor any other creditor was a party
to the deed. C. being himself a creditor of
A., agreed to purchase X., the purchase-money
to be applied by him in payment of the debts.
By a deed, to which the trustees and A. and
B. were named parties, X. was conveyed to C.
in fee, in consideration of the purchase-
money, to be paid and applied by him in dis-
charge of the scheduled debts, among which
was P.’s judgment. The uses of Y. were re-
voked by A. and B., and it was conveyed to
indemnify C. The trustees not having exe-
cuted the purchase-deed, afterwards conveyed
the legal estate to C., but it was declared that
they should not be answerable for the title, or
for the application of the purchase-money.
P.’s judgment was not paid; but a sum which
had been retained to meet it was afterwards
paid by C. to A., with the consent of B. Held,
that P., not having been a party to any of the
deeds, could not sustain a bill to raise the
judgment under the trusts.

That the conveyance to C. was substantially
an execution of the trusts of the first deed,
and therefore defeated the ultimate fee limi-
ted to A.; consequently the judgment never
was a lien on more than A.’s life estate.

Semble—That the purchaser of an equitable
estate, who got a transfer of the legal estate
before execution issued on a judgment, would
not (before the 3 & 4 Vic. c. 105) be subject
to the judgment, although he had express
notice.— Browne v. Cavendish, 7 I. E. R. 369.
1 Jon. & L. 606. (C.)

1. A judgment having been entered on a
bond executed by two sureties for a land
agent—ZHeld, that interest on the balanve due
by him could not be claimed under the 3 & 4
Vie., c. 105, s. 26.—Lord Templeton v. Mur-
dock, 71. BE. R. 470. (C.)

2. A husband covenanted to insure his life,
for £1200, and assign the policy to trustees;
and confessed a judgment to them for that
amount, to be called in if the policy was not
so assigned and kept up. Another sum of
£800, vested in them by the same settlement
on similar trusts, was lent by the trustees to
the husband on the security of the assignment
of a policy of insurance for £800 on his life.
No other policy was assigned to them; and
no steps were ever taken to enforce the judg-
ment or covenant. Ina suit against the trus-
tees after the husband’s death, Held, that the
proceeds of the policy were not necessarily to
be considered as obtained in pursuance of the
husband’s obligation, but that the trustees
might apply them for the purpose for which
the policy was really assigned ; and that their
liability for default in not compelling the
husband to insure depended on his ability.

A., having passed his bond, and warrant to
confess judgment thereon, to trustees, was

 

[JUDGMENTS—THEIR EFFECT.]

discharged as an insolvent under the 3 G. 4,
c. 124, returning them for the amount in his
schedule. Judgment was afterwards entered
on the warrant by them, and assigned to new
trustees on the old trusts, by a deed to which
A. was a party. Held, that this was in the
nature of a new obligation, and that the
judgment was an available security.— Ball v.
B., 111. E. R. 370. (C.)

8. Receiver appointed on a judgment, not-
withstanding a voluntary deed executed the
same day as the judgment was entered; the
judgment having relation back to the first
day of the preceding Term.—Beamish v.
Phaire, 111. E. R. 559. (R.)

4. A civil-bill decree binds the defendant’s
goods from the delivery of the warrant to
special bailiffs, not from the delivery of the
decree to the Sheriff (unless it be delivered
to him to be executed), or his signature of
the warrant.—Delacour v. Freeman, 1 I. C. R.
612. (R.)

5. A judgment creditor whose debt was in-
curred before the 3 & 4 Vic., c. 105, cannot in
this Court rely upon the fact that the conuzor
is alive, as cause against making absolute the
conditional order for a sale.—Crofts v. Poe, 3
I. Jur. 218. (1.E.C.)

6. A judgment is not, as against the lands
of the conuzor, entitled, under the statutes 10
Car. 1, sess. 2, ¢. 3 (dr.), and 3 & 4 Vie., c. 105,
to priority over a voluntary conveyance of
anterior date, executed by the conuzor when
not in embarrassed circumstances.—Lvans y.
Evans, 21. C. R. 242; 51. Jur. 21. (C.)

7. Registration under the 7 & 8 Vic., c. 90,
does not confer any priority on judgments
inter se during the lifetime of the conuzor.

A. recovered against B.a judgment in 1838.
In the same year B. died, having bequeathed
(subject to charges) a chattel real beneficially
to his executrix and his son. ‘The executrix
assented to the bequest. In 1843 C. recovered
a judgment against B.’s executrix and son.
In 1846 D. recovered a judgment against them,
which was immediately afterwards registered.
A writ of fi. fu. on that judgment was lodged
with the Sheriff on the 18th of January
1849. On the 25th of January 1849, the
judgment of 1843 was registered. On the
30th of January 1849, the Sheriff sold to A.
the chattel real under the fi. fa. issued on D.’s
judgment of 1846. A.’s judgment of 1838
was, on the 6th of February 1849, revived
against the executrix of B. in her representa-
tive character. On that judgment a ji. fa.
then was issued, and a return of nulla bona
made. On the 28th of February 1849, the
chattel real was by indenture conveyed to A.
by the Sheriff, and B.’s executrix and son.
A. afterwards obtained assignments to himself
of the charges on the chattel real. On a bill
subsequently filed by C. against A. and B.’s
executrix and son, to have the amount of the
judgment of 1843 raised out of the chattel
real—Held, that the judgment of 1846 was
not, in virtue of its earlier registration, en-
[JUDGMENTS—THEIR EFFECT.]

titled to priority over the judgment of 1843.

That A. was not, in respect of the judgment
of 1838, entitled to the benefit of the proviso
in the 3 & 4 Vic. c. 105, s. 22, in favour of
purchasers, mortgagees, and creditors who
became such before the passing of that Act,
2. é., in 1840; and that A. was not entitled to
use that judgment, or the charges assigned to
him, as a protection to his title to the chattel
real as against C.

That the title to the chattel real acquired
by A., under the sale by the Sheriff on the ji.
Ja. issued upon the judgment of 1846, was not
protected, as against C.’s judgment of 1843,
by the proviso in the 3&4 Vic., c. 105, s. 22,
“that nothing in that Act contained shall
take away or prejudice any remedy or pro-
ceeding which any judgment creditor may, or,
if that Act were not passed, might have or
take in relation to his judgment; but such
creditor shall be at liberty to proceed at law
or in equity for recovery of any sum secured
by, or due upon, any such judgment, whether
before or after such period as aforesaid, as if
that Act had not been passed.”

A decree was pronounced in favour of C.,
as prayed by his bill.—Hyde v. Atkinson, 2 I.
C. R. 246; 51. Jur. 33. (C.)

1. Judgment by default was entered up on
a receiver's recognizance; a levari issued
against the surety; and the Sheriff returned
goods on hand, for want of buyers. An in-
junction was granted against the levar: on
payment of the amount into Court. The
surety applied to set aside the judgment by
default. The judgment was ordered to stand,
but the surety was allowed to plead to the
sci. fa. He pleaded. A demurrer taken to
the rejoinder was allowed; and it was ordered
that judgment should be entered for the plain-
tiff, which was done. Hed, that it was irre-
gular; and, the first not being a continuing
judgment, and being determined by the death
of the receiver, a devari could not be sued out
on it.

The practice of the petty-bag side of the
Court and of the three Law Courts under
those circumstances, certified to the Master
of the Rolls.—Jn re Herricks, 3 I. C. R. 183.

(R)

2, A judgment is, under the 3 & 4 Vic., c.
105, ss. 19, 21, 22,a valid charge upon an
ecclesiastical benefice, without issuing a se-
questration; and the Court will in a plenary
suit grant a receiver over the benefice.—
Hawkins v. Gathercole, 1 Sim. N. 8. 63, con-
sidered and acted on.—[ Hale v. Carpendale, 5
I. Jur. 121. (C.)

3. A. was a trustee of B.’s will, by which real
estate was devised to the separate use of C.
for life, and after her death to her children
as she should appoint. A. was also a simple
contract creditor of B., for a sum paid by
reason of B.’s default in a receiver matter.
After B.’s death, C., who was B.’s executrix,
and A. and his co-trustee, joined in mort-
gaging the real estate so devised, and personal
property, to a trustee for A., to secure his

 

451

debt. C. and the co-trustee covenanted that
the property was free from incumbrances,
except specified judgments. By a contempo-
raneous deed, C. appointed to her children,
and amongst others to D. and E., who had
obtained judgments prior to the mortgage
against B. D. and KE. were parties to the
deed of appointment, and by it ratified the
mortgage, and all the covenants, &c., therein
contained, as if they had been parties to, and
had executed it. Held, that A.’s mortgage,
though subsequent in date, should have pri-
ority over the judgments of D. and E.—Jn re
King, 41. C. RB. 800. (P.C,)

4. Before award of an elegit, a judgment
does not bind chattel lands as against pur-
chasers and mortgagees who became so before
the 8 & 4 Vic. c. 105.—Jones v. Stokes, 2 I.
Jur. N. 8. 42. (B.)

5. When voluntary judgments were en-
tered, and subsequently a mortgage was
executed, and an annuity granted, and after-
wards, by settlement executed in considera-
tion of marriage, the judgments became of
value—fHeld, that this last consideration did
not relate back so as to make the judgments
valid against the mortgagee and annuitant as
from the date of their entry; and that the
judgments could take priority only after the
mortgage and the annuity.—Donovan v. Rogers,
31. Jur. N.S. 25. (R.)

6. A deed of partition, in 1838, allotted to
G. the premises of A., B., and C., subject to
£15. 7s. 8d., one-third of an annuity of £50,
late currency.

In M. Term 1834, a judgment for £700 had
been recovered against G. On the 12th Dec.
1838, G. conveyed B. to H., free from the
annuity and other incumbrances; and subse-
quently became entitled for life to the pre-
mises, D. By marriage settlement (6th Nov.
1846), executed on G.’s marriage with J., re-
citing G.’s title to (amongst others) A., and
that they were subject to the annuity of £15.
7s. 8d.; and also reciting a mortgage of D.,
G. conveyed A., C., and D. to trustees, upon
trust, “after first paying the head rents and
other charges to which the said several lands,
houses, and tenements were severally and re-
spectively liable,” to pay the rents to J. for
life, for her separate use. This deed con-
tained no covenants by G.; who, in 1852, as
heir-at-law of H., became entitled to B., and
also to E.; and died, leaving no personal
estate, but having devised B. and E. to the
petitioners. Held, that B. and E. were pri-
marily liable to the judgment of 1834.—A ker
vy. Alker, 31. Jur. N. 8. 185. (C.)

7. A father, before his second marriage in
1832, executed three bonds, with warrants of
attorney to confess judgments, to trustees, as
provisions for three daughters of his first
marriage. Judgments were not entered on
the bonds until after the second marriage
took place, although the settlement executed
prior to that marriage stated that judgments
had been entered on them, and that their
452

object was to make provision for the children
of the first marriage, In 1843, the father
mortgaged the lands in settlement, and in
1844 granted an annuity out of them. In
1853, on the marriages of two of the daugh-
ters, their judgments were settled for value.
Held, that the judgments were voluntary.

That although they became judgments for
value, on the execution of the daughters’
marriage settlements, they did not become
valid by relation against the mortgagee and
annuitant.

Judgments before the 3 & 4 Vic., c. 105,
were incumbrances; and, as such, within the
Irish Statute against voluntary conveyances.—
O'Donovan v. Rogers, 7 I. C. R. 1. (R.)—
(Affirmed, 71. C. R. 496; 31. Jur. N. S. 291.
(C.A.)]

1. A., tenant for life of estates, with power
to appoint them to his issue male, and to
charge a sum for the benefit of his younger
children ; on the marriage of his third son,
executed a bond and warrant of attorney on
which judgment was entered, for a sum asa
provision for him. On the marriage of a daugh-
ter, A.also made a provision for her, by way of
annuity, charged on one of the settled estates.
A. afterwards devised certain of the estates
to his eldest son, subject to all his debts and
incumbrances of every description, and sub-
ject to charges made by his will in favour of
his other children. He then charged sums in
favour of others of his children, and devised
an estate to his fifth son, freed and exonerated
from all his debts, charges and legacies; his
will being, that if any creditor should recover
any demand from the land so devised to his
fifth son, that son should be recouped by
other estates devised to the eldest son. A.
stated that he had avoided mentioning his
married children, as he had already provided
for them, by bond or otherwise, at their re-
spective marriages, fully and adequately to the
provisions made thereby for his other children.
A. did not appear to have left property other
than that which was the subject of this power.
Held, by the majority of the Council, that the
charge of the judgment debt to the third son,
by the will, operated as an execution of the
power to charge for younger children.

That an instrument should operate as an
execution of a power, it is not necessary that
the donee should intend to execute the
power, or that he should have it in contem-
plation. It suffices, if the act which he in-
tends to do cannot be done; or the benefit
which he intends to confer cannot be con-
ferred otherwise than by an execution of the
power.—In re Morgan, 71. C. RB. 18. (P.C.)

2. A judgment creditor, by arresting his
debtor, torfeits the benefit of the charge on
the debtor’s lands, conferred by the 3 & 4
Vic., c. 105. He cannot, therefore, without
suing out an elegit during the debtor’s life,
obtain a decree in a plenary suit, to raise the
amount of his judgment by receiver or sale,
out of the debtor’s lands.—Sawyer v. Norris,
71.C.R. 314; 31. Jur. N.S. 291. (R.)

3. In 1846, A. and B., to secure a debt due

 

[JUDGMENTS—THEIR EFFECT.]

from them as partners to C., gave C. their
joint and several bond and warrant of attor-
ney, upon which C. entered judgment. In
1849, the partnership was dissolved. From
that time A. alone carried on the business.
In 1858, A. became bankrupt. Held, that C.
could not prove for the amount secured by
the bond upon A.’s estate ; the several as well
as the joint bond and warrant having been
merged in the joint judgment.

The principle of Exparte Christie, Mont. &
Bl. 352; 2D. & Ch. 154; applies to and rules
this case.—In re (allie, ex parte Gallie, 9 I. C.
R. 188. (B.)

4. G. devised the lands of L. to his daugh-
ters, as tenants in common. Upon his death,
in 1824, J. entered into possession, and so
continued till his death in 1831, when his son
D. entered into possession, and so continued
till 1858. A judgment obtained against G.
in 1811 was revived by sc. fa. in 1831 (before
J.’s death) against J., as G.’s heir-at-law,
against the co-heiresses, and against terre-
tenants of other lands. The lands of L. were
not mentioned in the return to the sci. fa.
Held, that D. had acquired an estate in fee in
L. by twenty years’ possession; and that they
were not affected by the judgment of 1811,
J. not having been made a party to the
sct. fa. as to them.—In re Bodkin’s Estate, 12
I.C.R. 61. (C.A.)

5. A judgment is not made a charge upon
the ecclesiastical rectories of the Crown by
the 3 & 4 Vic., c. 105, s. 22.

{ Winter v. Homan, 61. C. R.479, overruled. |—
Sweeny v. Fleming, 14 1. C. R. 23; 81. Jur. N.
8. 241. (C.A.)

6. The interest of a judgment debtor in
lands against which a judgment has been re-
gistered as a mortgage under the 13 & 14 Vic.,
c. 29, cannot be taken in execution under a
writ of fi. fa.

The 14 & 15 Vic., c. 29, s. 10, is to be read
as an exception to the concluding portion of
the Ist sec., which enacts that “no writ of
execution (save as hereinafter mentioned)
shall issue, or be issued upon any such judg-
ment,” &¢.—In re Gerrard’s Estate, 14 I. C. R.
466; 91. Jur. N. 8.21. (C.A.)

7. On the Ist March, two traders executed
to C. their bond, with warrant of attorney to
confess judgment thereon, which was filed on
the 30th March, on which day judgment was
marked and duly registered. No affidavit
verifying the date of the execution of the
bond and warrant, was filed. On the 16th
April the traders were adjudicated bank-
rupts. Before the bankruptcy, C. levied a
considerable amount of his judgment debt.
By consent, and subject to the parties’ rights,
the money was lodged in Court. Held, that
the warrant was one to confess judgment in a
personal action, within the 20 & 21 Vic., c. 60,
s. 334; and that, since the warrant had not
been filed, or its execution verified, as re-
quired by that Act, the judgment was null
and void against the assignees.—Re Sheil and
Lyons, 10 1. Jur. N. 8. 80. (B.)
Relief against.

Til. Revier acainst a JUDGMENT.

1. A purchaser under a decree will not be
held to his purchase, unless all parties having
judgments, &c., appearing on record against
the vendor, whether prior or subsequent to the
claim, to raise which the bill was filed, are
brought before the Court, so as to bind their
rights.—Piers v. P., 1 Dr. & Wal. 265. (C.)—
[Affg. 8. & Se. 379.]

2. When a judgment affects several denomi-
nations of lands, a prior purchaser of one of
them is entitled to throw the judgment from
his own, upon the lands of any puisne purchaser,
and so on in succession with each purchaser,
until the judgment falls upon the lands in the
last purchaser’s hands.—Aicken v. Macklin, 1
Dr. & Wal. 621. (C.)

3. Under a decree to account in a judgment
creditor’s suit, the Master found that the assets
consisted of real estates, and of an irrecovera-
ble mortgage. Under the final decree the real
estates were sold. The produce was distribu-
ted amongst the judgment creditors according
to their priority; and the price paid three
judgments and part of a fourth. Several
remained unpaid. Afterwards the mortgage
debt was realised. Held, that that sum should
be distributed rateably amongst the unpaid
judgment creditors.—Averall v. Wade, 3 I. E.
R. 446; Fl. & K. 325. (R.)

4, Since the 3 & 4 Vic., v. 105, subsequent
judgment creditors are necessary parties to a
foreclosure suit.—Rolleston v. Morton, 4 I. E.
ts 1 Dr. & War. 171; 1 Con. & L. 252.

5. A judgment obtained by confession
against an old Corporation, after the 16th Feb.
1836, is not conclusive against the new Cor-
poration, when the Court doubts whether the
demand upon which the judgment was ob-
tained is within the terms of the 6&7 W. 4,
c. 100. Upon an information filed by two
burgesses of a new Corporation, to stay the
issuing of execution against its goods upon
that judgment—Held, that they were entitled
to am issue to try whether it was originally a
demand such as came within that Act.—Aitt.-
Gen. v. Corp. of Dublin, 1 Dr. & War. 545. (C.)

6. Quere—Whether a general power to join-
ture by deed or will, without any restriction
or limitation, is well exercised by limiting a
jointure, with a direction that the first gale
shall be paid on the day following the death
of the testator, donee of the power ?

P., tenant for life, with power to charge the
lands with a jointure for any wife he might
marry, charged them with £300 a-year, to be
paid on every lst May and Ist Nov.; the first
payment to be made on the day of his decease.
He died in January. The jointress outlived
the first gale day. Held, that she was entitled
to be paid £150 on the day of P.’s death.

Semble, secus—If she had died before the
first gale day.—Purcell v. P., 4 I. E. R. 558:
2 Dr. & War. 217; 1 Con. & L. 371. (C.)

[JUDGMENT.]

 

Equitable Remedies. 453

¥. On the 8rd March 1841, the petitioner
obtained a conditional order for a receiver,
under 5&6 W.4, v. 55, on a judgment entered
in 1828, by warrant of attorney, against the
respondent, who was then a trader, and against
whom a commission of bankruptcy issued
within two months after the conditional order
in this matter was made absolute, on motion
of the assignee. JHeld, that this case was
within the 125th sec. of the Bankrupt Act (6
W. 4, c. 14), and that the receiver should be
removed.

That the proceeding in this matter having
been within a year after the passing of the
3 & 4 Vic. c. 105, were not protected by the
22nd sec. of that Act; and it appearing that
simple contract creditors of the respondent,
who were such before the Ist Nov. 1840, had
proved under the commission, that such
creditors were entitled to the benefit of the
proviso saving the right of “purchasers,
mortgagees, and creditors,” and that the
assignee was to be considered as entitled
in their right—Burt v. Bernard, 4 I. E. R.
328. (R.)

8. Bill by a judgment creditor against the
heir and assignee of the conuzor (who had
been discharged as an insolvent shortly before
his death), and also against the conuzor’s
elegit creditor who had been many years in
possession. Held, that ptf. was only entitled
to an account for wilful default against the
elegit creditor from the date of filing the bill.
—M'‘Donnell v. Walsh, 2 Dr. & War. 252; 1
Con. & L. 388. (C.)

 

IV. Remepies 1n Equiry.

9. A judgment debtor conveyed lands to
ptf., covenanting against incumbrances. The
judgment creditor afterwards sued out elegits
on which ejectments were brought against the
purchaser, who, by arrangement, paid part of
the debt, and offered to pay the residue, if the
creditor would assign the judgment to him.
The creditor refused to assign, but offered to
satisfy it. Held, that ptf., on paying the judg-
ment, was entitled to have an assignment of
it.—Rotherham v. Flynn, Beat. 555. °

10. The general rule was, that a bill filed by
a judgment creditor in the lifetime of the
conuzor, should state that the plaintiff had
issued an elegit; but when the conuzor was
seized only of an equity of redemption upon a
mortgage in fee, and it had been decided upon
motion that the conuzee was not entitled to
issue an elegii—Held, that it was not neces-
sary that the bill should contain that state-
ment.

Neither was it necessary that plaintiff should
have revived his judgment within a year pre-
vious to that period.— Hadley v. Lord Langford,
2 Jon. 421. (E.E.)

11. Two judgments, for like penal sums,
and against the same deft., were obtained by
different persons on the same day, in the same
Court. Thesum reported due on one exceeded
that on the other. The fund was deficient.
454 Equitable

Held, that it should be divided between the
creditors in proportion to the sums reported
due to them.— Woods v. Davis, 2 Jon. 815.

1. The Court will not appoint a receiver
upon a judgment under the 5 & 6 W. 4, c. 55,
without the consent of a prior creditor who is
in receipt of the rents Kennedy v. Whitney,
S. & Se. 375. (R.)

2. The Court refused to grant a receiver
under the 5 & 6 W. 4, v. 55, when the applica-
tion was founded on a judgment recovered in
1806, and revived in 1814, when an elegit issued,
but upon which no further proceedings had
been taken.—Mahon v. FitzGibbon, 1 I. E. R.
6; 1 Dr. & Wal. 651. (C.)

8. A judgment creditor, who, after the death
of the conuzor, issues an elegit and obtains a
finding thereunder, but who is prevented from
getting into possession of the lands by the
proceedings of a prior creditor, is not thereby
debarred from resorting to another remedy for
recovery of his demand.

Quere—Whether a judgment creditor, who
proceeds by elegit after the death of the
conuzor, and gets into possession of a moiety
of his debtor’s freehold property, and who is
not disturbed in that possession, can abandon
his elegit proceedings, and file a bill in equity
for the recovery of his demand by a sale of
his debtor’s freehold estates ?

If the revival of a judgment be good against
the terretenants, it is equally so against all
persons not terretenants, or in possession,
who may have remote or contingent interests
in the lands.—Ryan v. Cambie, 2 I. E. R. 328.
(E.E.)

4, When a creditor’s suit was commenced
before the 3 & 4 W. 4, ce. 27—Held, that the
claim of a judgment creditor who subsequently
came in and proved his debt in due course
under the decree, was unaffected by that
statute. Secus had it been necessary to make
a special application to the Court for liberty
to prove the debt, grounded upon a denial of
the creditor’s knowledge of the existence of
the suit.—O’Kelly v. Bodkin, 2 I. E. R. 361.
(£.E.)

5. Semble—In the case of petitioners under
the 5&6 W. 4, c. 53, the relative priority of
several judgment creditors is to be ascertained
by the date of the absolute order for the
appointment or extension of the receiver,
obtained by them respectively. — Egan v.
Mulholland, 2 1. E. R. 454. (R.)— [See Mur-
tagh v. Tisdall, 2 I. E. R. 41, and Baker v.
Pettigrue, ibid, 144.]

6. A creditor who does not come in regularly
to prove his demand under the decree to
account in a creditor’s suit, but obtains an
order for liberty to file a charge and obtain a
separate report at his own expense, upon an
affidavit stating that he was ignorant of the
existence of the suit until after the decree to
account was pronounced, and the report there-
under made, cannot rely upon the suit as

[JUDGMENT.]

 

Remedies.

being his from the beginning, so as thereby to
avoid the bar of the 3 & 4 W.4, c. 27, s. 42.—
O'Kelly v. Bodkin, 31. E. R. 390. (E.E.)

7. A judgment creditor, seeking to have his
debt charged under the 38 & 4 Vic., c. 105, s.
23, upon a fund impounded and standing in
the name of the Ac.-Gen. of the Court of Ch.,
ought to present his petition to that Court in
the first instance. If he thinks proper to
resort to a Law Court for the charging order,
he must afterwards come here and obtain
liberty for the Ac.-Gen. to act under it, so as
to prevent a clashing of jurisdiction. The
Ac.-Gen. of this Court has no right to attend
to any order inconsistent with or varying the
order of this Court, without its special direc-
tion so to do.— Gore v. G., 4 I. E. R. 164. (R.)

8. A judgment being in force against hus-
band and wife, the Court made an order under
the 3&4 Vie., c. 105, s. 23, charging it upon
a competent part of stock vested in trust to
pay, during the joint lives of husband and
wife, the dividends to the wife for her sepa-
rate use, free from the control, &c., of her
husband—the deed containing a clause against
anticipation, but further providing that the
wife should, notwithstanding coverture, have
power to appoint the principal, subject to the
husband’s right to the dividends for his life, in
the event of his surviving her; if the husband
should be the survivor, and no valid appoint-
ment made by the wife, the principal was to
be paid absolutely to him; but if the wife
should be the survivor, then the principal to
be paid absolutely to her;—the order being
without prejudice to the right of the wife to
receive the dividends during the joint lives of
herself and her husband.—Carter v. Mahon, 4
I. E. R. 305; s. c. FL & K. 342. (R.)

9. The surplus fund realised in a fore-
closure suit cannot, after the death of the
debtor, be charged with a,judgment at the
suit of a judgment creditor, under the 3 & 4
Vic., ¢. 105, 8. 23.

The Act does not apply to funds standing
in the name of the personal representatives of
a judgment debtor.

Quare—Whether such fund is, under any
circumstances, chargeable with a judgment
under 3 & 4 Vic. c. 105, s. 23 ?— Wallace v.
M‘Cann, Fl. & K. 570; 41. E.R. 522. (R.)

10. Semble—The assignee of a judgment may
sue out execution upon itin his own name,
when it has been revived within a year, and
assigned since the revival, without its being
revived in the name of the assignee; but the
execution should state the special matter.—
Fitzgerald v. Dalton, Long. & T. 662; 4 I. E.
R. 697. (E.E.)

11. After a final decree, a receiver in a cause
will not be extended to the matter of a peti-
tion on a judgment, when the petitioner might
have proved his judgment under the decree.
The proper course is to apply for liberty to
prove his demand under the decree.—Furlong
v. Bateman, 41. E. R. 699. (H.E.)
Equitable

1. The G. O. of June 1842, with respect to
judgment creditors, does not apply to suits in
which a decree had been pronounced before it
was made.—Montgomery v. Southwell, 5 1. E. R.
71; 2 Con, & L. 263; 3 Dr. & War. 171. (C.)

2. A judgment creditor, having two judg-
ments on bonds, for principal sums and inte-
rest, took a mortgage, further to secure the
amount of the two principal sums “ with law-
ful interest and any costs to be incurred ;”
and, having filed a foreclosure bill, obtained a
payment in that cause, which, if appropriated
to the earlier of the two judgments, would
have paid the sum due upon it, although in-
sufficient to discharge the costs of suit and
the arrears of interest on the mortgage, for
payment of which, as well as of the principal
money, there was a decree for a sale. The
mortgage security failing, the creditor pro-
ceeded upon the judgments against the
debtor’s real estate; the account of the sum,
due upon the judgments, taken on the prin-
ciple of giving credit for the payments, as in
the foreclosure cause.— Carey v. A{‘Dermott, 5
I. E. R. 209, 2. (R.)

3. A petition under the Sheriffs Act is ap-
plicable only where the judgment creditor
would be clearly entitled at law to obtain
possession under an e/egit; and when the legal
title is not clear, or such as there is a clear
equity to restrain, this Court will not inter-
fere in the matter of the petition —Kenny v.
Clarke, 5 I. E. R. 284. (R.)

4. A party claiming under an annuity
charged on a rectory and vicarage by the in-
cumbent, is entitled to priority over a judg-
ment creditor of the incumbent, although
prior in point of time, who has not obtained
a sequestration until after the date of the
charge.— Wise v. Beresford, 5 I. E. R. 407; 3
Dr. & War. 276; 2 Con. & L. 282. (C.)

5. G. devised lands to A., subject to the
payment of his debts; and, reciting that he
had obtained a decrée for payment of a large
sum, directed that money, when recovered,
to be the primary fund for payment of his
debts; and appointed A. and J. his execu-
tors. Before the primary fund became avail-
able, the executors, being pressed for the pay-
ment of a debt of G., joined in mortgaging the
lands devised to A., and executed a bond, on
which a joint judgment was afterwards en-
tered up against them. The money so raised
was applied partly in payment ot A.’s debt,
and partly in obtaining a renewal of the lease
of the mortgaged lands. A., out of his own
moneys, afterwards paid off the mortgage, and
took an assignment of it, and of the judg-
- ment, to a trustee. eld, that he could not
rely on the judgment as a subsisting incum-
brance affecting the estate of J., notwith-
standing that there was an unsettled account
of the assets of G. between him and J., on
which he alleged that J. was indebted to the
estate in a sum larger than the amount of the
judgment.

The meaning of the Statute is not that the

[JUDGMENT.]

 

Remedies. 455

assignee of the judgment shall be subject to
an equity arising out of an unsettled account
between the assignor and the conuzor of the
judgment unconnected with the judgment,
but to an equity which attaches upon the
judgment itself—Beresford v. Chambers, 5 I.
E.R. 482. (E.E.)

6. One who, without consideration, con-
fesses a judgment for the purpose of thereby
withdrawing his property from the demands
of his creditor, e. g., the creditors of a Joint-
stock Co. (in which he was ashareholder), has
not an equity for an injunction to restrain
the conuzee from proceeding to levy the
amount of the judgment, though it never was
used for the purpose for which it was con-
fessed—M‘Curdy v. Martin, 5 I. E. R. 515.
(E.E.)

7. In a judgment creditor’s suit, there was
a final decree for sale of a chattel interest,
and, if necessary, of real estate of the de-
ceased debtor, to pay the sum due on the
judgment, and the costs of the suit. After
enrolment of the decree, the plaintiff applied
that the real estate might be sold in the first
instance. That application being unopposed,
and it appearing that the value of the chattel
interest bore a small proportion to the sum
due to plaintiff under the decree, and that
there should be much delay and expense in
making out the title to it, the Court ordered
that the real estate should be sold in the first
instance, and reserved the right of the de-
fendant (entitled to the real estate subject to
the judgment) to compensation out of the
chattel interest, for any injury he might sus-
tain by reason of the sale of the real estate.—
Wilton v. Ferguson, 61. KE. R. 33. (R.)

8. The dominion of a tenant in tail in pos-
session over the estates of those in remainder
and reversion, enabling him of his own free
will, and by his own act, without the assent of
any other person, to extinguish those estates
and acquire the fee-simple for his own be-
nefit, is not “a disposing power,” within the
meaning of the 3 & 4 Vic., v. 105, s. 19. The
22nd sec. of that Act, making a judgment
binding, not only as against the debtor, but
“also against the issue of his body, and all
other persons whom he might, without the
assent of any other person, cut off and debar
from any remainder, reversion, or other inter-
est,” creates an equitable charge only, which
cannot be enforced otherwise than by a suit
in equity.— Fletcher v. Steele, 6 I. E. R. 376.
(R.)

9. But then another question arises. It is
said that a mortgagee has a specific lien
which a judgment creditor has not. As the
law now stands, all estates, both legal and
equitable, are bound by a judgment. There
is nothing in the Act to show that the legisla-
ture intended that a charge by way of mort-
gage should have greater power over the
estate than a charge by way of judgment.
The law charges the equitable in like manner
as the legal estate. I cannot, therefore, see
456 Equitable

where the doubt is in this respect. I think
the Master wrong in the conclusion which he
came to; I must, therefore, overrule the re-
oo and allow the exception. — Baldwin v.

elcher, 6. E. R. 428; 1 Jon. & L. 18. (C.)

1. A judgment creditor having sued out a
Jji. fa. and obtained a return of goods on
hands for want of bidders, petitioned for a
receiver, without having proceeded to a sale
under the jf. fa. Held, that he was not en-
titled to a receiver until the execution at law
was consummated and at an end; the pro-
ceedings under the Sheriffs Act being ana-
logous to an execution.— Chatterton v. Allen, 7
I.E. R. 64. (R.)

2. R., a judgment creditor, having sued out
a fi. fa. in 1840, on which there was a return
of nulla bona (the debtor’s leasehold estate
having been previously mortgaged), filed his
bill on the 16th of November 1840. W., a
prior judgment creditor, subsequently peti-
tioned for a receiver. By an order in the
cause and matter, and also in the cause of
the prior mortgage, a receiver was appointed.
The lands having been sold for the payment
of the mortgage, R. and W. applied for the
surplus fund. Held, that R. was entitled to
it in priority to W.

The right acquired by the suing out of the
Ji. fa. was not lost on the return of the writ.

The right of the judgment creditor, before
the return of the writ, is but inchoate and in-
complete; but when on the return, it appears
that his executor is frustrated by a legal im-
pediment, then the equitable remedy is called
into operation.— Simpson v. Taylor, 7 1. E. R.
182. (R.)

3. The time of presenting the petition
under the Judgment Creditors Acts, as ap-
pearing by the indorsement of the Chancel-
lor’s Secretary, and not the date of the fiat, is
the period at which the petitioner must be
entitled to sue out his elegit.

If the petition be presented within a year
after the judgment has been obtained, it is
“sufficient, though not fiated until after the
year.—Robertson vy. M‘Cabe, 7 I. E. R. 477.

(R.)

4, A judgment creditor, in applying for a
receiver under the Judgment Acts, should
state in his petition every material fact af-
fecting his demand; if he withhold any, he
will not be allowed his costs.

In calculating the amount of his demand,
the creditor is bound to deduct such interest
as is barred by the Statute of Limitations —
Lane v. Townsend, 8 I. E. R. 53. (R.)

5. In 1787 a lease was made by a lunatic to
his brother, for lives renewable for ever. The
lessee, the last life in the lease, died in 1836.
In the lunacy matter proceedings were had
respecting the lease and the rent reserved
thereby. Their result was that, without re-
cognising the lease as a valid demise, the
lessee was allowed to hold part of the lands
upon paying the whole rent. From 1836 to

[JUDGMENT]

 

Remedies.

1842 the lessee’s heir received the profits.
In 1842 the lessor died. The fee descended
upon the lessee’s heir, who was also the
lessor’s heir. On a bill filed by a judgment
creditor of the lessee—Held, that the lessee
had not acquired either the fee, subject to
a perpetual rent equal to that reserved, or
a right to a renewal by reason of the 3 &
4W. 4, c. 27, length of time, or the proceed-
ings in the lunacy matter; and that the pro-
fits received by the lessee’s heir from 1886 to
1842 were not assets of the lessee.—Fulton v.
Creagh, 9 I. E. R. 289; 3 Jon. & L. 329. (C.)

6. This Court has jurisdiction to set aside a
fraudulent sale in the Insolvent Court. It
will not be exercised if there be a remedy
there.

A judgment creditor of 1843, during the
life of the conuzor, filed a bill to redeem a
judgment of 1842, obtained for a debt which
was also secure! by a lease to the creditor,
reserving a rent which was to be retained
until the debt was paid; and for a sale, to
pay the sum advanced for redemption and
his own debt. Held, that he was entitled to
redeem,,and to have an assignment of the
prior creditor’s security, but not a sale, there
being creditors prior to November 1840.

Semble—A detaining creditor of an insol-
vent cannot file a bill for a sale on foot of
his judgment, under 3 & 4 Vic., c. 105.—Ma-
ge vy. O'Reilly, 9 I. E.R. 835; 3 Jon. & L.

7. If there be an irregularity in reviving
a judgment, relief must be sought in the
Court of Law, and not as a defence in a suit
in Equity to raise the amount of the judgment.

A revivor against the heir and terretenants
of one estate of the conuzor has no operation
to keep the judgment alive against another
estate of his originally bound by it—F ranks
v. Mason, 9 I. E. R. 358. (C.) ‘

8. In a suit to raise the amount of a judg-
ment after the death of the conuzor, seeking
the usual accounts of his real and personal
estates, it was never necessary to sue out an
elegit before the suit.—Foster v. M-Mahon, 11
I. E. R. 287. (C.)

9. In a mortgage cause, begun prior to the
New Rules, a supplemental bill, making a
puisne judgment creditor a notice party, was
filed within twenty years after the rendition
of his judgment. The decree was obtained,
and his charge filed after the twenty years had
expired. Held, that that the suit was one the
pendency of which prevented the operation
of section 40 of the Statute of Limitations.

The pendency of a suit, when the 9 G. 4, c.
35, passed, does not dispense with the neces-
sity for redocketing or reviving a judgment
under sec. 3 of that Act.—Joyce v. J., 10 I. E.
R. 128. (C.)

10. Joint judgment against A., B., and C.
A. was the principal, and B. and C. sureties.
A. died; judgment revived against B. and C.
C. was the heir-at-law of A., but the revival
was against him as one of the surviving conu-
Equitable

zors and not as heir. The Court appointed a
receiver on petition over the lands which had
come to C. by quasi descent from A. the prin-
cipal debtor.

Semble—As a general rule, where there is a
joint judgment, and all the conuzors are prin-
cipal debtors, and one of them dies, the Court
will not appoint a ‘receiver over the lands of
the survivors alone. The judgment ought to
be revived against the surviving conuzors, and
the heir and terretenants of the deceased
conuzor. The Court should appoint a receiver
over the lands of the heir and terretenants of
the deceased conuzor as well as over the lands
of the survivors, in order to enforce contri-
bution.

An arrest under a ca. sa., and discharge
under the Insolvent Act, is not cause against
the appointment of a receiver on the judg-
ment.— Mercer v. M‘Kee, 111.E.R. 322. (R.)

1. The owner of a leasehoffl for years mort-
gaged it, and afterwards, in 1820, confessed
judgments. He, in 1824, acquired a freehold
estate in the same lands. Ina suit pending
after the statute 3 &4 Vic., ¢. 105—Held, that
the freehold having been acquired before that
Act, the judgment creditor had no equity to
prevent the term, though an equity of re-
demption, being merged as against him.

All judgments of the same Term and ensu-
ing Vacation, recovered prior to the statute
8&4 Vic., c. 105, have equal priority inter se.

The rule that judgments of the same Term
are in equal priority inter se, applies to judg-
ments in the Exchequer and other Courts
alike — Smith v. Chichester, 121. E.R. 519. (C.)

2. When a receiver is extended on the peti-
tion of puisne judgment creditors, they cannot
claim interest till the arrears of interest are
paid to the prior incumbrancer.—Stewart v.
The Marquis of Donegal, 131. E. R. 106. (C.)

3. A trader, possessed of a chattel real, ac-
knowledged a judgment. After its rendition,
the chattel real was sold under a fi. fa. upon
a puisne judgment. The trader was after-
wards declared a bankrupt. Held, that the
first judgment was not levelled by the bank-
ruptcy, and that its amount might be raised
out of the chattel real in the hands of the
purchaser with notice.— Willock y. Dargan, 1
IC. R. 39. (C.)

4. When a judgment is not tainted with
fraud, the assignee cannot rely on a mere
defence at law which the bankrupt had ne-
glected to make. The consideration for the
judgment is always subject to investigation.—
In re Jennings, 1 1.C. R. 236. (B.)

5. H., being seized of an estate tail in W.,
judgments were obtained against him in 1824,
Upon his marriage, subsequently in that year,
W. was settled upon him for life, remainders
over for the benefit of the issue; and a reco-
very was suffered to the uses of the settlement.
In 1825 H., by purchase, acquired B. in fee.
In 1826 other judgments were obtained against
him. In 1829 the plaintiff agreed to lend H.
£2000 upon mortgage of his fee in B., and his
life estate in W., provided that the judgment

[JUDGMENT.]

 

457

Remedies.

creditors of 1824 would release B. from their
judgments. They assented, and then (1829)
executed a deed-poll, which recited that H.,
being desirous to have B. clear of incumbran-
ces, had requested the judgment creditors of
1824 to release it from the incumbrances there-
upon by their judgments; and they, being
satisfied that the residue of H.’s lands were a
sufficient security for their judgments, agreed
thereto. By the operative part they released,
&c., B. from their respective judgments, and
from all writs of execution, &c., then sued out,
or thereafter to be sued out, against B., by
virtue of their respective judgments, or other-
wise in relation thereto ; and agreed (for their
respective judgments only) to indemnify H.
from all costs, &c., which should at any time be
incurred by reason of B. being attached in
execution under those judgments. After-
wards H. executed the proposed mortgage to
the plaintiff. Held, that both at law and in
equity the operation of the deed-poll was to
exonerate W. as well as B. from the rights and
remedies of the judgment creditors of 1824.

The 11 & 12 Vic., c. 48, s. 72, enacting that
the release of any portion of lands in Ireland
from any judgment affecting the same shall
not nullify or affect the force of such judg-
ment as regards the residue of such lands, or
any other property not specially released, does
not apply to releases executed before the pass-
ing of that statute-—Handcock v. H.,11.C. R.
444. (C.)

6. A judgment creditor bequeathed legacies,
and appointed the debtor executor. Held,
that as the judgment, though extinguished at
law, was subsisting in equity, it was capable
of being redocketed, and was within the pro-
visions of the 9 G. 4, ¢. 35.

Notice of an unredocketed judgment will
not make it binding against a purchaser.

An unredocketed judgment is not only null
and void as against a subsequent purchaser for
value; but also, in order more effectually to
work out the object of the said Act, neces-
sarily null and void as against an interven-
ing redocketed judgment.—Jn re Huthwaite,
21C.R. 54; 41. Jur. 61. (.C.)—| Beere v.
Head, 9 1. E.R. 76; 3 Jon. & L. 340, approved
of ; Latouche v. O’Brien, 10 I. E. R. 112, ob-
served on. ]—[See the exception grafted on this
case, Woodroffe v. Greene, 141. C. R. 224. (R.)]

7. The ji. fa. sued out under a decree or
order of the Court by virtue of the 4 & 5 Vic.,
c. 105, s. 27, must correspond with the decree
or order. When a separate ji. fa. against one
issued on a joint order for payment of costs
against several, the Court set aside the writ
as irregular, but without costs ; and paid back
the money levied, on the party undertaking
not to bring an actionin respect of the seizure
and sale by the Sheriff—Moneypenny v. De*
Massy, 1 I. C. R. 597. (R.)

8. Lands were devised in trust to pay a rent-
charge to a husband and his wife for their
natural lives, and the natural life of the sur-
vivor. A receiver was appointed on a petition
of a judgment creditor of the husband, by his
consent. The rentcharge was not received

58
458 Equitable

by the receiver during the husband’s life.
Held, after his death, that as the rentcharge,
if a legal one, might have been extended by
the creditor, an elegit bill would lie for it;
and therefore the receiver had been rightly
appointed and was entitled to the arrears.

An estate to husband and wife by entireties
may be extended by a judgment creditor of
the husband.—Crofton v. Bunbury, 2 I. C. R.
465. (R.)

1. A judgment was obtained by the guar-
dians of a Poor-law Union against the im-
mediate lessor. A receiver was subsequently
appointed over the defendant’s interest in the
lands on which the rate was due. Held, that
the judgment against the immediate lessor did
not prevent the guardians from proceeding
against the occupiers, under the 6 & 7 Vic., c.
92, 8.3; and that the receiver was bound to
pay the amount.—De Montmorency v. Pratt, 1
I. Jur. 315. (R.)

2. A judgment having been entered on
record, and redocketed against the conuzor
by one only of his two baptismal names, sub-
sequent incumbrancers by deed were held
bound, although the judgment had escaped
their notice when making searches.—Hallam’s
case, in re Carew’s Estate, 4 I. Jur. 109. (P.C.)

3. This Court will not appoint a receiver in
a foreclosure suit, or a suit to raise a charge
affecting lands, unless a year’s interest is due,
or the property is in danger of being evicted
(e.g., for non-payment of head-rent); or there
is reason to apprehend that it will be insuffi-
cient to pay the charges on it. An absolute
order for a sale in the I. E. Court will not of
itself induce the Court to vary the rule.

When a judgment creditor, who had regis-
tered an atiidavit of ownership under the 13
& 14 Vic., c. 29, on the same day filed a cause
petition, which was referred to the Master
under the Court of Ch. (/r.) Reg. Act, 1850,
s. 15, and the Master made a decretal order,
appointing a receiver for payment of the
sum due on foot of the judgment; the Court,
on appeal, it appearing by affidavit that the
lands would be insufficient to pay the judg-
ment, extended the receiver who had been
appointed in another matter; but reserved
the question of costs, until the produce of a
sale which was pending in the I. E. Court
should be ascertained.—Herbert v. Green, 3
I. C. R. 270. (R.)

4. The rule established by Huthwaite’s case,
21. C. R. 54, that an unredocketed judgment
is null and void, not only as against a sub-
sequent mortgage, but also against an inter-
vening redocketed judgment, applies, though
the fund should be insufficient to reach the
mortgagee’s demand.—In re Lowe, 4 I. C. R.
97. (P.C.)—[See the exception to this rule,
Woodroffe v. Greene, 141. C. R. 224. (R.)]

5. Two judgments were obtained in 1803,
and another in 1805, against A., who was
seized in fee of lands. A. died. The lands
descended on B. and C., his daughters and
co-heiresses. In 1809, on the marriage of C.,
her moiety was settled to uses, under which

(JUDGMENT.]

 

Remedies.

the respondents, M‘C. and wife, claimed.
The owners of the two moieties agreed for a
partition, which was never carried into legal
execution. One of its terms was, that the
judgments should be thrown on B.’s moiety.
In 1843, B.’s moiety was mortgaged, in trust,
to the petitioner, who had notice of the agree-
ment for the partition, and the judgments
were also assigned as a collateral security.
Petitions were filed in the I. E. Court for the
sale of both moieties, but the Commissioners
stayed the sale of C.’s moiety, until it should
be ascertained whether B.’s moiety would be
inadequate to pay the judgments and the
mortgage. <A petition was filed in this Court
for a receiver pending the proceedings in the
I. E. Court; and the Master appointed a
receiver over both moieties. On appeal
from his order; Semble—That the petition
was not sustainable as against M‘C. and wife ;
because no e/egit had issued on the judgments,
and the suit no#being for the administration
of the conuzor’s assets ; because the judgments
were not made charges by the 3&4 Vic, c.
105, as against M‘C. and wife, as purchasers
under the settlements of 1809. Held, that the
petitioners having had notice of the agree-
ment to throw the judgments on B.’s moiety,
the Court would not, until it was ascertained
that that moiety was insufficient to pay them,
appoint a receiver over C.’s moiety.

Semble—That the petitioner, as mortgagee
of B.’s moiety, having had notice of the agree-
ment, was not entitled to throw the judgments
on C.’s moiety, in order that the proceeds of
B.’s moiety might be sufficient to pay off the
mortgage.— Tressilian v. Caniffe, 4 I. C. R.
399. (R.)

6. The conuzor of a judgment bequeathed
allhis personal estate specifically, and devise1
his lands to A. for life, remainder over, ap-
pointed A. his executor; and charged the
lands with payment of his debts. After the
death of the conuzor, the judgment was assign-
ed to a trustee for A., the assignment stating
that it had been paid off out of the proper
money of A. The trustee having filed a peti-
tion to raise the amount of the judgment out
of the lands—fHeld, that the lands and the
chattels specifically bequeathed were liable
to contribute rateably to the payment of the
judgment.

Quere—W hether the judgment, having been
paid off by A., was a subsisting security at
law, which could be assigned for his benefit ?

Held, that the right to raise the judgment
out of the lands depended on the legal right;
and the Court directed an action at law to be
brought to try it—Mannix v. Coates, 5 I. C.
R. 142. (R.)

7. A judgment was obtained on the 8rd
Dec. 1845. The conuzor died on the 19th
Jan. 1847. Another judgment was entered
against the same conuzor on the 3rd Feb.
1845, and was registered under the 8 & 9 Vic.,
c. 90, onthe same day. The judgment of 1847
was not registered until the 22nd Nov. 1847.
Held, that in the administration of the real
and personal assets of the conuzor, the judg-
ment of 1847 had priority over the judgment
of 1845.
Equitable Remedies.

In the administration of real assets, judg-
ments entered up before 1850 take priority
inter se, according to the dates of the registra-
tion.— Revell v. Revell, 5 1. C. R. 284; 11. Jur.
N. 8. 168. (C.)—[Affg., Revell v. R., 41. C. RB.
436. (R.)]

1. In 1812, a mortgage was executed by A.
and B. to C. In 1818, two judgments, and in
1815 a third judgment, were obtained by C.
against A. C. entered into possession of the
mortgaged lands in 1812, and continued in
possession until 1855. Inaredemption suit—
Held, that the judgments were not, so far as
related to the question in this case, to be con-
sidered as incorporated in the mortgage so as
to form one security ; and therefore that the
rents received, or which might have been re-
ceived, by C., were to be applied—first, in
payment of the interest and principal due on
the mortgage; secondly, in payment of the
interest and principal due on the two judg-
ments of 1813; thirdly, in payment of the
interest and principal due on the judgment
of 1815.—Montgomery v. Donohoe, 5 I. C. R.
495; 21. Jur.N. 8.91. (R.)—[Affd.: 61. C.
R. 168. (C.)]

2. The proviso in the 3& 4 Vic., c. 105, s.
22, exempting from the operation of the Act
purchasers who became such prior to the com-
mencement of the Act, applies only to pur-
chasers for value.

Quere—Whether a judgment creditor, made
a respondent to a petition by a puisne incum-
brancer, can ever require an offer to redeem
him in the petition ?—Gullichan v. M‘Gusty, 5
I. C. R. 348. (C.)

3. It is not necessary to issue an elegit before
instituting a suit after the death of the conuzor
of a judgment; praying an account on foot of
the judgment, and that it may be declared
well charged on the real and personal estate
of the conuzor.—[Poster v. Macmahon, 111. E.
R. 287, followed. ]—Chaytor v. Peyton, 3 I. Jur.
N.S. 131. (R.)

4, A., upon borrowing money from B., un-
dertook to assign legally to him, when re-
quested, two judgments against C., as col-
lateral security. Afterwards, A. voluntarily
assigned these judgments on record to D, in
trust for the separate use of A.’s wife. It
did not appear that she or the trustees had
any notice of the previous agreement.—
Held, that notwithstanding the assignment,
the voluntary trusts were void as against B.,
who was entitled to have the judgments as-
signed to him in pursuance of the agreement;
his right being an “ equity” within the 25 G.
2, ¢. 14.—Macan v. Richardson, 6 I. Jur. 237.
(C)

5. Upon a motion allowed to be made after
the settlement of the final schedule of incum-
brances in the L. E. Court, an order postponed
an unregistered judgment to a registered deed,
and to intermediate registered judgments.
Soon after that order, the owner of, the un-
registered judgment arranged with the owner
of the registered deed, who withdrew his
claim, and consented that the order should

[JUDGMENT.] Registry as Mortgage.

 

459

be rescinded. Held (reversing the decision
of the L. E. Court), that the order was not
a tinal adjudication of the priorities of the
parties, equivalent to a decree in Chancery ;
that the order ought to be rescinded, and the
priorities placed in the order in which they
originally stood on the first schedule—ZJn re
Scott’s Estate 141.C. R. 57. (C.A.)

6. The rule in Huthwaite’s case, 2 I. C. R.
54, that an unredocketed judgment is null
and void, not only as against a subsequent
mortgage, but also as against an intervening
redocketed judgment, does not apply when
the mortgagee does not make any claim to
the distributable fund.— Woodroffe v. Greene,
141. C. R. 224. (R.)—[See in re Lowe, 4 1. C.
R.97. (P.C.)]

7. A prior unredocketed judgment is not
postponed to a subsequent redocketed judg-
ment in consequence of the existence of a
mortgage puisne to the redocketed judgment,
if the owner of the mortgage makes no claim
on foot of it; even though his omission to
claim may happen in consequence of an
agreement with the owner of the unredock-
eted judgment made after the institution of
the proceedings in which the question was
raised.

The appointment of a receiver in a mort-
gage does not take the case out of the opera-
tion of the 8lst G. O. of 1843.— Woodroffe
v. Greene, 151. C. R. 176. (C.A.)

 

V. Reeistry or JuDGMENT AS A MortTGaGE.
[See 13 & 14 Vic., c. 29; 21 & 22 Vic., v. 105.]

8. The affidavit to register, as a mortgage, a
judgment obtained in an adverse suit, did not
specify the title, trade, or profession of the
plaintiff, and did not specify the amount of
costs recovered by the judgment. Held, that
the omission of the costs was not a valid ob-
jection, inasmuch as no costs were specially
given by the judgment; and, besides, the word
“costs,” in the 8th requirement of the 6th
section, properly referred to costs as such,
ordered to be paid by any “ decree, order, or
rule.”

That the affidavit not stating, pursuant to
the 6th requirement of that section, either
the title, trade or profession of the plaintiff,
was inoperative to create a mortgage.—ZJn re
Ferrall, 71. Jur. 307. (B.)

9. A judgment registered as a mortgage
under the 13 & 14 Vic., c. 29, s. 6, takes pre-
cedence of prior unregistered instruments, of
which the conuzee had no notice.— Corbett v.
De Cantillon, 5 1. C. R. 126. (C.)

10. Declare the judgment obtained by pe-
titioner as of M. ‘Term 1853, and registered
by him as a mortgage on the 13th Dec. 1853,
well charged on the lands in the petition
mentioned. Declare the post-nuptial settle-
ment of the 13th Nov. 1850, in petition men-
tioned, void as against the registered mort-
gage of the 13th Dec. 1858; and let the
post-nuptial settlement be postponed to the
mortgage vested in petitioner.—Montgomery v.
M'‘Evoy, 5 I. C. R. 128, note. (C.)
460 Registry as

1. A trader executed a bond, with war-
rant of attorney for confessing judgment, in
Dec. 1855. The warrant was not filed. Judg-
ment was not entered till April 1856. An
affidavit under the 13 & 14 Vic., c. 28, was
registered immediately after the entering up
of the judgment. The trader subsequently
became bankrupt. Held, that the security
given by the registered affidavit was not
avoided by the omission to register the war-
rant and enter up judgment within twenty-
one days.—£x parte Collins, 61. C. R. 17; 21.
Jur. 189. (C.)

2. A judgment obtained against the public
officer of a J. S. Banking Company, on which
an execution has, upon a sci. fa., been awarded
against one of the members, may he registered
as a mortgage, under the 13 & 14 Vic., c. 29,
against the property of that member. The
affidavit for the purpose of registration may
properly be entitled both in the original
action and in the sci. fa. proceeding.— Carroll
(i Seully, 7 I. C. R. 239; 21. Jur. N.S. 452.

C.)

38. In 1851 B. obtained a judgment against
A. In 1855, a decree on consent, made in an
administration suit, declared A. a trustee for
himself and his brothers and sisters, as to
lands in which he had the legal estate. In
1856 the judgment creditor registered his
judgment as a mortgage, under the 13 & 14
Vic., c. 29, against the lands. Held, that the
registration affected that portion of the lands
only in which A. was beneficially interested.
The registration of a judgment as « mort-
gage, under the 13 & 14 Vic., c. 29, operates
in equity to pass the beneficial interest of
the debtor only. If the debtor has a legal
estate, it is transferred to the creditor, sub-
ject to the same equities as it was liable to
before the registration.

Quere—Whether the affidavit made by a
creditor to register a judgment, under the 13
& 14 Vic., c. 29, should state the title, trade,
or profession of the parties at the date of the
affidavit ?—[ See 21 & 22 Vic., c. 105, amending
the 13 &14 Vie., c. 29.]—M*Auleyv. Clarendon,
8I1.C. R.121. (R.)—[Affd., 8 LC. R. 568;
Dr. Rep. temp. Napier, 483. (C.A.)—Approved
of, Eyre v. M‘Dowell, 7 I. Jur. N.S. 41 (H.
L.); 9 H. Lds. Cas. 619.]

4. A creditor, having obtained a judgment
against the official manager of a Banking
Company, registered an affidavit of the judg-
ment against the real estate of a former share-
holder in the Company, without having issued
a sci. fa. against him. Held, that a Court of
Equity ought to give relief against such regis-
tration of the affidavit, as being a cloud on
the shareholder’s title to the lands.—Hone v.
O’Flahertie, 9 I. C. R. 119; Dr. Rep. temp.
Napier, 505. (C.)—[Affd, 9 I. C. R. 497,
(C.A.)]

5. A judgment registered as a mortgage
under the 13 & 14 Vic., c. 29, is entitled to
priority over a prior unregistered instrument
of which the conuzce has not had notice.—In re
Hamilton, 91. C. R.512. (C.A.)

[JUDGMENT.]

 

a Mortgage.

6. In an affidavit filed under the 13 & 14
Vic., c. 29, s. 6, for the purpose of converting
a judgment into a mortgage, a description of
the defendant’s last known place of abode as
“late of the town of Galway, but now of the
county of Dublin ”—Held, insufficient, as being
too vague.

The same affidavit stated the amount of the
judgment to be £594, and £3. 2s. 8d. for costs ;
whereas the sum mentioned for the costs on
the record was £2. 2s. 8d., the fee of £1 for
registration having been added to the costs in
the affidavit. Held, to be such a variance as
invalidated the affidavit—In re FitzGerald’s
Estate, 11 I. C. R. 278; 5 I. Jur. N. S. 204.
(C.A.)—[Disapproved of, Thorpe v. Browne, 16
LC. R. 865; 10 L Jur. N. 8. 166. (R.)J—
Thorpe v. Browne, revd., Law. Rep.2H. L. 220.

7. An affidavit entitled A. B. plaintiff, and
C. D. defendant contained the averment.
“that on the day of a judgment in
this cause was entered up at suit of deponent
against said defendant in the Court of —,
in a cause of which the title is A. B. of ——,
plaintiff, and C. D. of ——, defendant.” Held,
not an averment of the defendant or person
whose estate is intended to be affected by the
registration of the affidavit, as required by
the 13 & 14 Vice., c. 29, sec. 6.—In re Assignees
of Ferrall, 5 1. Jur. N. 8. 275. (L.E.C.)

8. If an affidavit, filed for the purpose of
registering a judgment as a mortgage under
the 13 & 14 Vic., c. 29, substantially complies
with the requirements of its 6th section, it is
sufficient. Such an affidavit was entitled in
the same words as the record of the judgment ;
and stated (inter alia) that “J. 'T., the plain-
tiff, by the name and description of J. T., of
116 Grafton-street, in the City of Dublin,
solicitor, did, on the 15th of July 1858, obtain
a judgment in the Court of Exchequer, against
the defendant in this cause, by the name and
description of E. 8. P., of, &e..... That
the usual, or last known, place of abode of the
said E. 8. P., the defendant in this cause, the
person whose estate is intended to be affected
by the registration of this affidavit, is at, &c.. .
That, to the best of deponent’s knowledge and
belief, the said E. 8. P., the defendant in this
cause, is, at the time of swearing this affidavit,
seized, or possessed of,” &c., &c. Held, a suffi-
cient statement of the title of the cause. That
the affidavit sufficiently identified the defend-
ant in the judgment with the person whose
estate was sought to be affected by the regis-
tration of the affidavit.—In re Power’s Estate,
111. C. R. 288. (C.A.)

9. An affidavit of registration, entitled in
the same words as the record of the judgment,
stated that “J., by the name and description
of J., of 116 Grafton-street, Dublin, solicitor,
obtained a judgment for, &c., dated, &c.,
against the defendant in this cause by the
name and description of P., of, &c., in the
county of, &c., Esq.” The affidavit then veri-
fied the place of abode and description of the
plaintiff and defendant; and continued, that
“to the best of his knowledge and belief, P.,
the defendant in this suit, is, at the time of

 

 
Registry as

swearing this affidavit, seized.” Held, that
under the statute, the affidavit sufficiently
verified the title of the cause; and that the
defendant in the cause was the person whose
lands it was sought to affect.—Power’s Estate,
ex parte Taylor, 61. Jur. N.S. 8. (C.A.)

1. An affidavit, registered under the 13 &
14 Fic., c. 29, s. 6, stated that the sum reco-
vered by the judgment was £265, with £3. 2s. 8d.
for costs. The record of the judgment stated
that the sum recovered was £265, besides
£2, 2s. 8d. for damages, and £1 for registry.
Held, not such a variance as invalidated the
affidavit.—Jn re Edgeworth’s Estate, 111. C. BR.
293; 61. Jur. N. 8.11. (C.A.)

2. When the lands against which the judg-
ment is registered are situated in a county,
the barony or county is a sufficient descrip-
tion. The parish must be stated only when
the lands are situated in a town or a county
of a town.—Edgeworth’s Estate, in re Goodyear,
61. Jur.N.8. 11. (C.A.)

3. In an affidavit, registered under the 13
& 14 Vic., c. 29, s. 6, a statement “that de-
ponent was and still is a gentleman,” was held
to be a sufficient description of the plaintiff,
where he had not any trade or profession.—
In re Edgeworth’s Estate, 11 1.C.R.294. (C.A.)

4. The owner of an estate sold in the L. E.
Court was held to be estopped from objecting
upon the settlement of the final schedule of
incumbrances to a claim which he had ad-
mitjed in his affidavit, filed as an answer to
the conditional order for sale, to be a charge
upon the estate.

He had also suffered the conditional order
to be made absolute, and a sale to be had,
without disputing the claim in question.

An incumbrancer cannot avail himself of an
objection filed by another party to the validity
of a claim to which he has not himself filed an
objection.—In re Power’s Estate, 11 I. C.R.
295; 61. Jur. N. 8.7. (C.A.)

5. An affidavit filed for the purpose of
registering a judgment as 4 mortgage under
the 13 & 14 Vic. c. 29, was entitled in the
margin:—“ J. M., of D., in the county of W.,
farmer, ptf.; T. I. F., of B., in the county of
W., Esq., deft.” The affidavit stated that J.
M., of &c., &c., had recovered a judgment
“against the deft.in this cause, by the name and
description of Thomas Joseph FitzGerald, of
Ballinaparka, in the County of Waterford,
Esq.” Held, a sufficient description of the
name and usual or last known place of abode
of deft.

Semble—That a supplemental affidavit filed
under the 21 & 22 Vic., v. 105, may be filed
after the death of the conuzor.—In re Fitz-
Gerald's Estate, 11 I. C. R. 356. (C.A.)

6. Statements in the title of a judgment
mortgage affidavit may be incorporated by
reference in the affidavit itself. A description
of the residence of the parties, in an affidavit
to register a judgment as a mortgage, will be
sufficient, if it be their ordinary trade resi-

[JUDGMENT.]

 

a Mortgage. 461

dence. The description must be substantially
contained within the affidavit itself. Such
affidavits need not be construed with strict
grammatical accuracy.—[M‘Dowell v. Wheatly,
71. C. R. 562, distinguished.)—Jn re Smith &
Ross, 111. C.R. 397; 61. Jur. N. 8. 72. (B.)

7. An affidavit is not sufficiently registered
within the 13 & 14 Vic., c. 29, if it omits the
usual or last known place of abode of both
plaintiff and defendant. The defect is not
remedied by a supplemental affidavit filed
after the conuzor’s death.—Humble’s Estate, 6
I. Jur. N. 8. 140. (L.E.C.)

8. On the 6th Oct. 1855, V. equitably mort-
gaged his estate to E. The deed of mortgage
was not registered. On the 25th August 1856,
D. obtained a decree in the Court of Ch.
against V.’s estate; and on the 7th of the
ensuing Noy. registered the decree as a mort-
gage under the 13 & 14 Vic.,c. 29. Held, that
this registration did not give the decree
statutable priority over the equitable mort-
gage.

A judgment registered under the 3&4 Vic.,
c. 105, and the 13 & 14 Vic., c. 29, only affects
the property of which the debtor was at the
judgment’s date lawfully possessed as of his
own right, and over which he had disposing
power ; but does not displace the prior equit-
able mortgagee’s interest.—Eyre v. M‘Dowell,
71. Jur. N. 8.41 (H.L.); 9 H. Lds. Cas. 619.

9. An affidavit to register a judgment under
the 13 & 14 Vic., v. 29, stated that the owner’s
Christian name was “ William.” He had been
sued simply as ‘ William,” but his correct name
was “ William Henry.” Held, that the descrip-
tion was sufficient; and that the statute is
satisfied when a Peer is described by his title
only.

The affidavit was entitled in the action in
which the judgment had been recovered, and
the title of that action was properly stated in
the margin of the affidavit; but in the body
thereof the words “in England” were omitted
from the description of the plaintiff, and the
words “William” and “defendant” from the
description of the defendant. Held, sufficient,
because the margin may be read as part of the
affidavit. [Humble’s case, 11 J. C. R. 356.]

The copy of the affidavit lodged in the
Registry Office varied from the affidavit of
which it purported to be a copy. Held, a
sufficient office copy within the Act, the pro-
per officer having testified it to be such by his
signature, and it being correct and sufficient
in the statutable particulars, and capable of
being certainly identified with the original.

The lands were situated in a city, and the
affidavit omitted the parish. Held, a fatal
omission.

The affidavit stated that the lands were
situated in the barony of Bunratty, in, &.,
there being no such barony, but two baronies
called respectively Upper and Lower Bunratty.
Held, insufficient—In re Earl of Limerick’s
Estate, 71. Jur. N. 8. 65. (L.E.C.)

10. The affidavit made to register as a mort-
gage a judgment recovered for two distinct
462 Registry as
sums, one for debt, and the other for costs,
must state both sums.

Such an affidavit stated accurately the
principal sum recovered, but omitted the
amount of costs. Held, ‘insufficient.—In re
Pilson’s Estate, 7 I Jur. N.S. 68. (L.E.C.)

1, From an affidavit to register a judgment
as a mortgage, the sixpence awarded for costs
was omitted. Held, fatal to the registration.

The affidavit stated the premises to be
situate in the parish of St. Michael’s, instead
of St. Michan’s. Held, fatal to the registra-
tion.—In re Grispi’s Estate, 7 I. Jur. N. 8.
119. (L.E.C.)

2. The affidavit to register a judgment as
a mortgage thus described the lands :—‘ The
lands of C., C., and K., situate in the baronies
of A. and M., and county of L.” Held, bad;
because the 13 & 14 Vic., c. 29, requires that,
when the lands are situate in two or more
baronies, &c., the same shall be distinctly
stated.—In re H. Morrow’s Estate, 7 I. Jur. N.
S. 403. (L.E.C.)—[Affd.; 14 I. C. R. 144.
(C.A.)]

3. The entry by the officer, of the parties,
names, &c., on the roll of a judgment, under
the 9 G. 4, c. 35, s. 8, is not the title of a
judgment.

In the entry andin the judgment, the state-

ments of the residence of the plaintiff were.

different. An affirmation made for the pur-
pose of registering the judgment under the
13 & 14 Vie., c. 29, followed the statement
in the judgment. eld, that the title of the
judgment was correctly stated. .

An affirmation, taker under the 3 & 4 W. 4,
c. 82, stated that ‘aftirmant was a member of a
religious sect called “Separatists.” It did
not follow in terms the form of affirmation
required by the Act; but purported to be
supplemental to another affirmation which
did, and to have been made before an officer
authorised to administer it. Held, that it
must be assumed to have been properly made.
Wolsely v. Pere 13 1.C. R341. (R.)—
—[Affd.; 141. C. R. 369. (C.A.)]

4. In an affidavit filed under the 13 & 14
Vic., c. 29, s. 6, for the purpose of converting
a judgment into a mortgage, the lands intend-
ed to be comprised in the mortgage were de-
scribed as “the landsof A., B., and C., situate
in the baronies of D. and "B, and county of
L.” Held, that the affidavit was insufficient,
the baronies not having been “distinctly”
stated within the meaning of the statute.—Jn
re Morrow’s Estate, 141. C.R. 44. (C.A.)

5. A judgment was recovered by R. W. S.,
against T. B., in the Court of Q. B., for £1200
debt, and £3. "Is. 11d. for costs. The affidavit
to register the judgment as a mortgage against
the estate of T. B., pursuant to the 13 & 14
Vic., c. 29, stated that R. W. S. had obtained
a judgment against T. B. for the sum of £1200
debt, besides for costs. Held, that the
affidavit did not comply with the requisites
of the 6th section.

 

[JUDGMENT]

 

a Mortgage.

That a payment to an incumbrancer on
account of a judgment, badly registered as a
mortgage, made by the Court in the presence
of a subsequent incumbrancer, does not in any
way prejudice the right of the subsequent in-
cumbrancer to impeach the prior statutable
mortgage on the ground of defective registra-
tion.—IJn re Bennett’s Estate, 9 I. Jur., N.S.
119. (L.E.C.)

6. When a judgment, obtained against a
Railway Company for adebt due toa contractor
for the execution of railway works, is regis-
tered as a statutable mortgage, under the 13
& 14 Vic., cv. 29, and the Company are then
declared bankrupt, that statutable mortgage
will be declared a valid charge upon the lands
and premises of the Company purchased for
the construction of a railway thereon.

Although that statute uses the word “ per-
son’ as owner of property to be affected by a
judgment mortgage, yet, as all the judgment
Acts are in part materia, and are to be read as
one code, the property of a body curporate is,
as regards a judgment mortgage, to be treated
as the property of an individual. The remedy
of judgment creditors in England by elegit is
analogous to that in Ireland by judgment
mortgage.—In re Bagnalstown Ry. Co., 10 I.
Jur. N. 8.156. (B.)

7. A judgment may, under the 13 & 14 Vic.,
c. 29, be registered as a mortgage against a
Railway Company.

In the affidavit to register the judgment,
“ Railway Company’ is a sufficient oa sia
of the Company’s trade.

In the description of the lands sought to ie
affected by the judgment mortgage, the names
of the townlands is a sufficiently minute geo-
graphical description to set forth in the affi-
davit.—ZJn re Bagnalstown and Wexford Ry. Co.,
101. Jur. N. 8. 253. (C.A.)

8. An affidavit, to register a judgment as a
mortgage, stated that “the amount recovered
by said judgment is £258. 11s. 10d., besides
costs... . and that the sum of £258. 11s. 10d.
sterling, secured by the said judgment, to-
gether with the costs of obtaining the said
judgment, still remains justly due, &c.”— Held,
defective in not particularising the amount of
costs.—Flood’s /state, 11 I.Jur. N. 8.61. (C.A.)

9. In 1849 judgments were obtained against
A., who, in 1851, became, by virtue of a parol
agreement, or by operation of law, tenant from
year to year of X.

In professed pursuance of the Judgment
Mortgage Act, s. 6, affidavits were, in 1855,
registered in respect of the judgments of 1849
against A.’s interest in X. In 1858 that in-
terest was enlarged by A.’s accepting a lease
for years, with a covenant for perpetual re-
newal. This lease was immediately upon its
execution deposited with B., to secure a pre-
vious loan made by C. to A, on the faith of
this security. Throughout this transaction B.
acted as solicitor for both A. and C. There
was not any investigation of the title, and B.
had actual notice of the previous tenancy
Mortgage.

from year to year. A.’s enlarged interest in
X. having been sold, a question of priority
arose between C. and the judgment creditors
of 1849 touching the proceeds of the sale.
Held, that the tenancy from year to year not
having become vestedin A. under an “instru-
ment,” was not, under Pigot’s Act, 3 & 4 Vic.,
c. 105, withdrawn from the operation of the
judgments of 1849 by the 2nd section of the
Judgment Mortgage Act.

That the enlarged interest of 1858, being a
graft on the tenancy from year to year, became
vested in A. as a trustee of the judgment cre-
ditors of 1849, to the extent of their equitable
charges; and that C., although a purchaser
for value, took, subject to these incumbrances,
on the assumption of their having been kept
duly registered as judgments; the circumstan-
ces having been such as to fix him with notice
of their existence —Jn re Tottenham’s Estate,
161.C. BR. 115. (L.E.C.)

1. The affidavit to registera judgment under
the 13 & 14 Vic., v. 29, described the defend-
ant as “formerly of B., in the county of W.,
but now of the City of Dublin, Esq.” Held
(following In re Fitz Gerald's Estate, 111. C. R.
278) thatthe judgment was not duly registered.
Semble—The object of the statute was, to
identify the parties to the judgment; and
therefore the judgment is duly registered, if
the affidavit describes them in a manner not
calculated to mislead.

The supplemental affidavit filed under the
21 & 22 Vic. c. 105, can only supply a defect
in the original affidavit, by stating positively
that which had been stated only by way of
recital, but cannot supply a defect in the
description itself— Thorpe v. Browne, 16 I. C.
R. 365; 101. Jur. N. S. 166. (R.)—[Revd.:
Law Rep. 2 H. L. 220.]

2. If a defendant in a judgment is abroad,
and has not at the time any residence in Ire-
land, it suffices in an affidavit to register the
judgment asa mortgage under the 13 & 14
Vic., c. 29, s. 6, to state as his usual place of
abode a property or estate to which he is
entitled, although his last known residence in
Ireland was not there.

A mere verbal error—e. g., “ Whitehall” for
“Whitehzll,” or ‘“Marshalsea” for “ the Mar-
shalsea,” in the description of the defendant’s
residence in such an affidavit, will not vitiate
the registration.—Slator v. S., 16 I. C. R. 488.

(R.)

3. A judgment, obtained against M. F.,
on a promissory note signed by M. F., was
registered as a mortgage against M. F., whose
real name was M. B. She was so named in a
Crown grant, and in certain Chancery pro-
ceedings; but, having cohabited with a man
named F.,had passed by his surname. Held,
that the judgment was duly registered as a
mortgage.—lowler vy. F., 16 I. C. R. 507. (R.)

4, An incumbrancer on the final schedule
noticed a prior incumbrancer, claiming under
a judgment mortgage, that, on the final hear-
ing of the schedule, he would be required to
produce proof of his judgment mortgage, and

[JUDGMENT]

 

Revivor of. 463

that it was duly registered so as to be a charge
upon the lands.

The judgment mortgagee produced a certi-
fied copy of the affidavit made to register
the judgment as a mortgage. The affidavit
was right in point of form; no objection was
filed. Held, sufficient proof of the validity of
the judgment mortgage.—In re Flood’s Estate,
171.C.R. 116. (C.A.)

5. An affidavit, filed to register a judgment
as «a mortgage, stated “that the amount
recovered by the said judgment was £258.
11s. 10d. sterling, for debt, besides costs ;” and
“that the sum of £258. 11s. 10d. sterling,
secured by the said judgment, together with
the costs of obtaining said judgment, still
remains justly due and owing,” &c. The
affidavit did not spécify any amount as
having been recovered for costs. Held,
that the affidavit did not comply with the
statutory requirements, and was therefore
defective; and that the security was invalid.
In re Flood’s Estate, 171. C. R. 127. (C.A.)

6, A., being entitled to a lease of 30 acres
of the lands of §., with a clause against alien-
ation, assigned his interest to B., without
the landlord’s consent. The petitioner ob-
tained against B. a judgment, which he
registered as a mortgage against “an estate
or interest in that part of the lands of S., con-
taining 25 acres or thereabouts, situate,” &c.
A Ry. Co. took from B. portion of the lands,
and paid the price. The lease having been
afterwards evicted for non-payment of rent,
the landlord took possession of the land,
except the portion sold to the Ry. Co. A
petition was filed against the Ry. Co. to raise
the amount of the judgment by sale of the
portion sold to them. Held, that the judg-
ment was not a charge upon that portion.

The legal effect of the affidavit was a grant
of 25 acres, at the grantee’s election, which,
however, could not be exercised against the
land sold to the Ry. Co.

Semble—B. should have been a party to the
suit.

Quere—Was not the whole interest under
the lease determined by the assignment to B.,
or by the eviction for non-payment of rent?
—Johnston v. Dublin and Meath Ry. Co., 17 I.
C. R. 1383. (R.)

 

VI. Revivor oF JUDGMENTS.
[See also ante, I.]

7. Notwithstanding the 3 & 4 W. 4, ¢. 27, s.
40, the revival of a judgment by sci. fa. within
twenty years is sufficient to enable a party to
proceed at law or equity for recovery of the
sum thereby secured, although more than
twenty years have elapsed since the rendition
of the original judgment.—Ryan v. Cambie, 2
I. E. R. 828. (E.E.)

8. A judgment creditor having sued out a
sect. fa. in 1837, within six years after an ac-
knowledgment of his debtor in writing, pre-
sented his petition for a receiver, under the
Sheriffs Act, in 1839, after the expiration of
the six years. Held, that the suing out of
464

the sci. fa., and not the filing of the petition,
was the “suit or action” within the meaning
of the 3 &4W. 4, c. 27,s. 42. The proceed-
ing by receiver is an equitable execution sub-
stituted for a legal one; and therefore the
creditor has a right to recover to the same
extent and amount under the former as
under the latter —Brady vy. Fitz Gibbon, 7 I. E.
R.1. (R.)

1. A revived judgment retains its priority
against purchasers subsequent to the judg-
ment but prior to the revivor.

It is not necessary in order to affect a re-
mainderman by the revivor of «a judgment,
that he should be served with the sez. fa. It
is sufficient if the tenant for life is served.—
Franks v. Mason, 9 1. E. R. 358. (C.)

2. A judgment creditor having in 1836 ob-
tained a conditional order for a receiver, a
consent order was made in 1837 that the
respondent should pay the debt by instal-
ments, and, in default, that a receiver should
be appointed. Upon default in 1846, the
creditor presented a petition to extend a re-
ceiver, appointed in the meantime in the
matter of a puisne creditor. Held, that the
petition was u continuation of the the ori-
ginal petition ; and that it was not necessary
to revive the judgment.

That the application should properly be by
motion.—Dyas v. Cruise, 9 1. E. R. 256. (R.)

3. Petition matters under the Judgment
Acts should be revived before funds can be
paid out in them.

A judgment, barred by statute 8 G. 1, c. 4,
when the 3 & 4 W. 4, c. 27, was passed, can-
not be set up again by a written acknow-
ledgment, though given after the passing of
the latter Act; nor would an acknowledg-
ment under the latter statute, given by a
debtor after the sale of an estate, set up
against the purchaser a judgment which was
barred by it at the time of the purchase.

Though a judgment of revivor is conclu-
sive on an application to appoint a receiver,
yet the Court will stay the distribution of
the funds until steps may be taken in the
proper Court, to get behind the revivor, in a
fit case.—Cloncurry v. Piers, 9 I. E. R. 407;
3 Jon. & L. 573. (C.)

4. To obtain a charging order under the 3
& 4 Vic., v. 105, s. 23, it is not necessary that
the judgment should be revived. The Court
granted the order on the petition of husband
and wife, on a judgment having been obtained
by the wife dum sola, without its having been
revived.—Jrwin v. Nesbiti, 131. E. R. 125, (R.)

5. Revivor of a judgment on a sev. fa., al-
though there be no change of parties, gives a
new present right to the conuzee, so as to
prevent the operation of the Statute of Limi-
tations (3 & 4 W. 4, c. 27, s. 40).—Jn re Blake,
21. C. RB. 643. (P.C.)

6. An elegit on foot of a judgment will not
be issued in the names of new trustees ap-

 

[JUDGMENT.—JURISDICTION. ]

pointed under the Trustees Act, 1850, unless
they become parties to the record. They
should make themselves parties thereto, either
by suggestion, or by reviving the judgment in
their own names, before they seek to issue the
elegit— M'‘ Cullagh v. Rodgers, 41. Jur. 75. (R.)

7. When a judgment has been revived
within six years, and no interest paid on it, a
receiver will be extended to pay the amount
of such judgment, and interest.—Viridet v.
Evans, 71. Jur. 17. (R.)

8. A., as principal, and B., as surety, exe-
cuted their joint and several bond to K. In
1818, K. recovered upon this bond several
judgments against A. and B. In 1840 the
judgment against A was revived against him.
Held, that this revivor was not sufficient to
prevent the Statute of Limitations barring
the judgment against B.—Waring v. W., 5 I.
C.R.6; 11. Jur. N. 8.2. (C.)

9. The “memorandum” required by the 7 &
8 Vic., c. 90, s. 2 (Sugden’s Act), to be left with
the officer upon the registration of a judg-
ment of revival must contain the names,
place of abode, title, &c., of the ptf. in the
original judgment.—In re Boate, 9 I. C. R.
524. (C.A.)

 

JURAT.
— Of Answering Affidavit. See Practices,
ANSWER.
— Of Affidavits generally. Sce Practice,
EVIDENCE.
—Of Plea, See Preavine, Puea.

 

JURISDICTION.

— Of Chancery, and Courts of Equity in general.
See Banxrurtcy, XI1X—Cuariry, I—
CopyrHoLp, VI — Courts — Distrizvu-
tTrion—Inrant, I—Lunatic—PLeEapine,
Demurrer—Prierapine, Prea—Prac-
Tick, APPEAL — Practicr, IssvE aT
Law — Souicrror, IV — Tirtz, II —
Wits, I.

I, In GENERAL.

II. By or witu RererREence To STATUTES.

III. Concurrent Jurispiction—How ar-
FECTED BY OTHER REMEDIES GIVEN
BY STATUTE OR ASSUMED BY OTHER
Courts.

IV, As BETWEEN JUDGES OF DIFFERENT OR
Surerior Courts oF Equity, AND
THEIR SEPARATE Powers.

V. Over, AND IN ProTEcTION oF ITs OF-
FICERS—OVER ITS OWN PROCEED-
InGS—Enrorcine irs own Deci-
SIONS.

VI, Over oruER CourRTs AND JURISDIC-
TIONS, AND OTHER FOREIGN MAT-
TERS, AND PERSONS OUT OF ITS
JURISDICTION,

1. Within the Kingdom.

2. Respecting matters foreign, and
Persons out of the Jurisdiction
of the Court. ©
woe

VII. In mMatrers oF Law, Fact, anp Re-
VENUE.
1. When a Court of Equity has, or
/ will exercise jurisdiction.
2. When not.

 

Resrectina WILLS AND MATTERS TES-
TAMENTARY.
. Respecting matrens Marrimontrat,
AND BETWEEN HusBanD AND WIFE.
. Criminal Marrers.
. Matters infra dignitatem.
Over Inrants.
1. Generally.
2. Between Parent and Child.

 

XIII. In Lunacy Matters.

XIV* Respectine FRrenpiy Socreties.

XV. Unper Court or Cu. Rec. (Ir.) Act,
1850, s. 15.

 

I. JURISDICTION IN GENERAL.

1. Courts of Equity have an original in-
herent jurisdiction in all cases of charity.—
The Incorporated Society v. Richards, 8. & Se.
559. (B.)

2. After a suit has been determined by the
decree or dismissal—/eld, that the Court still
retains jurisdiction to make orders relative to
a recognizance entered into during and for
the purposes of the suit.—O’Leary v. Purcell,
Flan. & K. 126; 31. E.R. 329. (R.)

3. When a plaintiff claims to be entitled to
a property under an alleged trust in a will,
created for those filling a character which he
alleges that he sustains, it is in the discretion
of the Court whether it will first decide the
question whether there is any such trust; or
put the petitioner to establish the character
in which he sues in the first instance.

In ordinary cases, the proper course is to
ascertain the question of fact in the first in-
stance.—Malone v. M., 3 I. E. R. 536 CH. L.) ;
8 Cl. & Fin. 179.—[ Affirming Malone v. O’ Con-
nor, 2 Dr. & Wal. 491. (C.)]

4, A bill prayed specific performance of a
contract, of which one term was, in effect,
that if any damage should result to the deft.
from works upon the erection of which the
parties had agreed, ptf. would give deft. an
equivalent in land; the amountof the damage,
and the quantity of the compensatory land,
to be ascertained by arbitrators—He/d, that
the Court had not jurisdiction to grant such
relief; and that the execution of a deed, con-
taining covenants for performance of that
part of the contract which lay im Jieri, would
not be a specific performance.—Gervais v.
Edwards, 41. E. R. 555; 2 Dr. & War. 80; 1
Con. & L. 242. (C.)

5. When a case involves a clear principle,
which has been decided by the House of
Lords, that decision must be followed by every
inferior Court.—French v. Macabe, 41. E. R.
568; 2 Dr. & War. 269; 1 Con. & L, 459. (C.)

[JURISDICTION GENERALLY.]

 

465

6. The Court has not jurisdiction to compel
a male ward, with whom a marriage has been
solemnized without the Court’s consent, to
execute, on attaining age, such a settlement
of his estate as will exclude his wife from all
participation in the property—Re Murray, 5
I. E. R. 266; 3 Dr. & War. 83; 2 Con. & L.
136. (C.)

7. The lessee of a lease for lives, renewable
on payment of fines and a penal rent, being
an infant, and no renewal having been made
for fifty years—Held, that the Court would not
upon petition direct a reference to ascertain
what was due for rent and fines, but would
require a suit to be instituted.—In re Colthurst,
5 J. E. R. 822; 3 Dr. & War. 35; 2 Con. & L.
35. (C.)

8. When a receiver’s personal representa-
tive submits to account for the rents received
by the receiver during his life, the Court has
jurisdiction to order him to pay in the sum
appearing due on foot of the account.— Magan
v. Fallon, 5 I. E. R. 490.

9. The Court of Ch. can dispose of Petty-
bag cases out of Term.—The Queen v. Lynch, 7
I. E. R. 263; 1 Jon. & L. 462. (C.)

10. Stock wasinvested in two persons’ names,
upon trust, as was alleged, for the petitioners.
The trust was evidenced only by statements
in the petition, and verifying affidavits of a
letter written by the donor for the purposes
of the application. One of the trustees resided
in some unknown place out of the jurisdiction.
Upon petition that the stock might be trans-
ferred to petitioners—Held, that an order
should not be made in his absence, though it
was stated that he declined to act, and though
the other trustee submitted to act as the
Court should direct.—Jn re Dunbar, 8 I. E. R.
71; 2 Jon. & L. 120. (C.)

11. The Masters have not jurisdiction to
examine viva voce any of the parties in the
cause.—Cashell v. Kelly, Dr. Rep. temp. Sug.
262. (C.)

12. Semble—That the Court has jurisdiction
to relax the operation of its G. Rule of March
1834,—Atkinson v. Ball, 3 Jon. & L. 874. (C.)

13. If a bill be filed contrary to good faith,
Semble, the Court has a summary jurisdiction
to take it off the file—Nugent v. Leyden, 1 I.
Jur. 139. (R.) :

14. The petitioner A., entitled to £10,000
charged on the lands of G., in 1812, while a
minor and a ward of Court, married B., a
minor. An agreement for a settlement was
executed under the direction of the Court;
and was carried out by a formal conveyance
in 1813, after A. and B. respectively attained
age. By this settlement a jointure was charged
for A. on B.’s lands, and A.’s charge of £10,000
was assigned to X. upon trusts. A suit was
instituted to sell G. In the Master’s report
made in 1833, the £10,000 was described as a

59
466 Generally.

debt due to A. This report was confirmed by
a decree made in 1836. By an order in a
supplemental suit made in 1844, it was referred
to the Master to ascertain the sums remaining
due under the decree of 1836; to report
priorities; and to allocate the fund. By his
report made in May 1845, the Master found
the sum due on foot of the £10,000 charged,
and described it as due to X. By the decree
in the supplemental suit made in June 1845,
the decree in 1836 was ordered to be carried
into execution, without prejudice to the rights
of any of the parties to rehear it ; and accounts
were directed of charges affecting G., of which
accounts had not before been taken, of the
priorities, and in whom vested. The Master
made his report under that decree in 1847,
and thereby described the £10,000 as payable
to X. In 1838, by a deed, duly acknowledged,
reciting the settlement of 1813, A. accepted
a diminished jointure, and executed and
acknowledged two other deeds reciting the
settlement, but did not take any personal
benefit under those deeds. In 1852, B. died.
G. was sold in the I. E. Court;,and on an
application by A. that the fund representing
the £10,000 might be paid to her instead of to
X., the Commissioners, without prejudice to
any proceedings which she might take in
Chancery, refused to pay it; certified that
there were funds in the I. E. Court applicable
to the payment of A.’s demand, if any; and
that, in allocating them, they would have re-
gard to any order to be made in A.’s suit in
Chancery. The petition was filed against the
claimants under the settlement, and prayed
a declaration that A. was entitled to the
£10,000. Held, that the Court of Ch. had
jurisdiction to make such a declaration of
right, with respect to the funds in the I. E.
Court.

That asettlementof a chose in action, though
made by a direction of the Court, does not
bind an infant or married woman, if the hus-
band die before the chose in action is reduced
into possession, or brought within the control
of the Court.

That the proceedings in Chancery did not
operate as a reduction into possession.

That a married woman acknowledging a
deed, under the Fines and Recoveries Act,
does not thereby give entire validity to all
instruments recited in such deed, even though
it may deal with interests created by such
previous instruments.

And that the petitioner was entitled to be
paid the sum charged on G.—D’Arcy v. Mad-
dock, 4 I. C. R. 40. (C.)

1, The Petty-bag side of this Court has not,
under the Common Law Procedure Act, any
jurisdiction to make a charging order against
stock, upon a judgment in sci. fa.—Regina v.
Uniacke, 41. C. R. 492. (C.)

2. The petitioner claimed an exclusive right
of fishing in an arm of the sea, and a public
navigable river; and the petitioner prayed
that he might be quieted in possession by an
injunction. The respondent relied on the
general Common Law right of fishery in the

[JURISDICTION.]

 

By Statute.

sea. Held, that the Court had jurisdiction to
entertain such a suit, and that the petitioner
need not be left exclusively to his Common
Law remedy.—Allen v. Donnelly, 51. CR. 229 ;
11. Jur. N. 8. 165. (C.)

3. E., seized of lands subject to mortgages,
devised them to T., in whom the mortgages
became vested. Held, that the Court had
jurisdiction in a suit instituted by the heir of
E., praying the ordinary redemption relief,
and an issue devisavit vel non to grant such an
issue.—Kgmont v. Darell, 14 I. C. R. 564. (C.)

4. Semble—Motions on the Petty-bag side
of the Court must be made in Term.—The
Queen v. Swan, 161. C. BR. 21. (C.)

5. The Court will not declare future rights
which may not ever arise; it leaves them to
be determined when they come into posses-
sion.— Murray v. Moyers, 16 I. C. R. 520. (R.)

 

Il. By or with REFERENCE TO STATUTES.

6. On demurrer to a bill filed by the assignee
of a deceased insolvent, who had been dis-
charged under the 53 G. 3, c. 138, against the
personal representative of the insolvent—Held,
that the jurisdiction of Equity to administer
the after-acquired property of the deceased,
in favour of the unsatisfied creditors, was not
ousted by the provisions made by the above
Act for enforcing payment at Law out of the
after-acquired property.

The jurisdiction of the Court of Ch. cannot
be taken away unless by express words.—
Byrne v. B., Flan. & K. 435. (R.).—[Affd.:
41. E.R. 621; 2 Dr. & War. 71; 1 Con. & L.
189. (C.)]

7. The Court has jurisdiction to authorise
the establishment of a charity, cy-pres, on a
petition presented under the 52 G. 3, ¢. 101.—
In re Belvidere’s Charity, 2 I. E. R. 854. (E.E.)

8. In a foreclosure suit, a day having been
given by decree to the infant deft., heir of
the mortgagor, to show cause against it—
Held, that the Court had jurisdiction to di-
rect an immediate conveyance by the infant,
under 1 W. 4, ¢. 47, s. 11—Flood v. Sutton, 3
LE. R. 340; Fl. & K.179. (R.)

9. Semble—The Court has not jurisdiction
under the 1W. 4, c. 47, s. 11, to order the
Remembrancer to execute the conveyance in
the name of a minor deft.—TZomb v. Orr, 3 I.
E. R. 64. (R.)

10. The surplus fund realised in a fore-
closure suit cannot, after the debtor’s death,
be charged with a judgment at the suit of
a judgment creditor under the 3 & 4 Vic.,
e. 105, $2 23,

That Act does not apply to funds standing
in the names of a judgment debtor’s per-
sonal representatives.

Quere—Is such a fund chargeable under
any circumstances with a judgment under
that section ?— Wallace v. M*Cann, 4 I. E. R.
522; Fl. & K. 570. (R.)
Onder or

1. The Court of Chancery has authority to
issue a writ “‘de coronatore eligendo,” to remove
a coroner for misconduct, although there is
not in force here any enactment correspond-
ing to 25 G. 2, c. 29 (Eng.)—Ex parte Pasley,
3 Dr. & War. 34. (C.)

2. The Ejectment Acts do not interfere
with the general jurisdiction of the Court in
redemption suits, further than by restricting
the period for filing the bill.

Before the passing of any of the Statutes
which form the Ejectment Code in this coun-
try, there was unquestionably an equity de-
pending upon general principles, which en-
titled the tenant to relief. This is distinctly
referred to in the earliest of those Statutes
(11 Anne, vc. 2), which contains a recital,
stating as one of the evils complained of,
that bills were filed in Courts of Equity, by
which the landlords were prevented from re-
covering possession.

The 11 Anne, c. 2, ss. 2 and 4, includes
equitable interests as well as legal.

Semble—That the fourth section does not
apply exclusively to bills filed before the exe-
cution of the habere.

The term “assignee” in those sections is
not to be construed to mean a legal assignee
of the whole term only; it applies to under-
tenants as well as to assignees in the proper
sense of the word.—Malone v. Geraghty, 5 I.
E. R. 549; 3 Dr. & War. 239; 2 Con. & L.
235. (C.)—[Affirmed, 1 H. Lads. Cas. 81.]

3. A depositor in a Savings Bank cannot
maintain a suit in a Court of Equity against
the trustees; the 9 G. 4, c. 92, s. 45, having
established arbitration as the only mode of
proceeding in disputes between depositors
and the institution.

A suit at Law, and not in Equity, would,
but for the Statute, be the proper remedy.—
Cooke v. Lord Courtown, 6 I.-E. R. 266. (R.)

4, The Court has jurisdiction to direct sa-
tisfaction to be entered on the registry of an
order under the 3 & 4 Vic., c. 105; and made
such an order on affidavit of payment, and on
consent signed by the party in whose favour
the order was made.—O’Nell v. Bass, 6 I. E.
R. 307. (R.)

5. The 1 W. 4, c. 47, s. 12 (authorising the
conveyance of estates devised in settlement
by tenants for life, &c., under decrees), ex-
tends to a decree for a mortgage as well as
for an absolute sale-—Holmes v. H., 7 I. E. R.
390. (C.)

6. The 26 G. 8, ce. 57, gave power to the
Crown to grant letters patent to keep a
theatre in Dublin, and prohibited all persons
from performing plays in Dublin for hire,
under a penalty of £300 for each offence, to
be recovered by action of debt, &c., by any
person suing. Letters patent were granted
to H., authorising him to establish a theatre
and perform plays in Dublin, and prohibiting
all other persons from doing so, unless autho-
rised. Held, that the patentee could not sus-

[JURISDICTION.]

 

by Statute. 467

tain a bill for an injunction to restrain un-
authorised persons who opened a theatre and
performed plays contrary to the statute and
patent. In such cases the right to bring an
action on the case and a bill for an injunction
are concurrent.—Calcraft v. West, 8 I. E. R.
74; 2 Jon. & L, 123. (C.)

7. The Court has not power under the‘l W.
4, v. 65, s. 14, to give the landlord the costs of
appearing on a petition under the 12th sec.,
for liberty to an infant’s guardian to accept
the renewal of a lease.—In-re Leech, 9 I. E.
R. 318; 3 Jon. & L. 189. (C.)

8. Under the 3 & 4 Vic., ¢.)105, the Court
has authority to permit a judgment creditor’s
assignee to continue in his own name the
proceedings of his assignor, under the Judg-
ment Creditors Act. — Daly vy. Blake, 10 I.
E. R. 36. (R.)

9. A notice for the appointment of a re-
ceiver, pursuant to first order (154th G. O.
1843) having been served, the respondent
died before the receiver was appointed. Held,
that before the appointment of a receiver, the
Court had not jurisdiction to continue the
proceedings.—Lawler v. Lowry, 1 I. Jur. 251.

10. The Court has not power, under the 28
G. 3, c. 85, to direct the Master to execute
a conveyance in the name of a feme covert,
who is out of the jurisdiction. — Nugent v.
Piers, 121. E. R. 188. (R.)

11. When the boundaries have been con-
fused, or land has been encroached on by the
tenant, the question of boundary or encroach-
ment should be determined before a fee-farm
grant is executed under the Ren. Lease. Conv.
Act, either by ejectment, or, if there be an
outstanding legal estate, by an issue.

Form of the order directing an issue.

Semble—The Court has no jurisdiction, on a
petition under the Act, to issue a commission
to ascertain the boundaries.—Jreland v. Wil-
son, 1 I. C. R. 623. (R.)

12. A suit instituted in the Court of Eq. Ex.
having been transferred to the Court of Ch.
by the 13 & 14 Vic,, c. 51, that Court ordered
the defendant to execute a deed under the
Court of Ch. Act, 4 & 5 W. 4, c. 78, s. 8—
Houston v. Barry, 31. Jur. 3. (C.)

13. Under the 3 & 4 Vic., c. 107, s. 85, the
Court for the Relief of Insolvent Debtors
in Ireland has not jurisdiction to order that
an insolvent be re-heard upon the matter of
his petition and schedule before an Assistant-
Barrister, who has already adjudicated upon
the case, pursuant to the 14 & 15 Vic., ¢. 57,
s. 119, and has fallen into a mistake in law
when doing so.

A re-hearing before the Assistant-Barris-
ter can only be directed in cases in which the
previous adjudication has been procured by
means of perjury, fraud, or other like acts, of
the parties themselves.
468 Onder or

Semble—Where the case does come within
the meaning of the statute, the application
for an order to re-hear should be made on
the earliest opportunity, so that the re-hear-
ing may take place at the Q. Sessions next
ensuing that at which the original adjudica-
tion was made.—IJn re G—, 21. C. R. 361;
31. Jur. 136 & 279. (1)

.

1. When aw judgment is a bona fide charge
upon lands, within the I. E. Act, and a pe-
tition on foot thereof has been presented,
the Commissioners have jurisdiction to order
a sale, notwithstanding the intervention of a
bankruptcy, or other circumstance, the hap-
pening of which before the presentation of
the petition would have annihilated or level-
led the charge.

Semble—After bankruptcy, the money se-
cured by a judgment is not “money secured
by judgment” within the I. E. Act. A peti-
tion presented on foot thereof, even by the
bankrupt’s assignee, will be dismissed.

When a bankruptcy happens after the pre-
sentation of a petition, it is altogether discre-
tionary with the Court whether the proceed-
ings for a sale shall be continued in the I.
E. Court, or in the Bankrupt Court.—Jn re
Lawder, 31. Jur. 385. (1.H.C.)

2. The 13 & 14 Vic., c. 51, transferring the
equitable jurisdiction of the Court of Exch.
to the Court of Ch., transfers to Ch. recog-
nizances entered into in a cause depending in
the Court of Exch. They may be sued upon
at the Petty-bag side.—TZ'he Queen v. Jones, 4
I. Jur. 265. (C.)

3. When Commissioners, appointed by an
Act of Parliament, exceed the authority
given them by the Act, and thereby infringe
on or violate private rights, the Court has
jurisdiction to restrain them by injunction.—
Foster v. Hornsby, 2 1. C. R. 426; 5 I. Jur.
279. (R.)

4. The Commissioners of Drainage, with-
out exceeding their jurisdiction, carried on
works in so negligent and expensive a man-
ner, that the sum stated in their award very
largely exceeded that stated in the esti-
mate of their engineer, on the faith of which
the proprietors of the lands assented to the
works— Held, that (assuming that the facts
stated in the petition were proved) an action
for negligence would lie by the proprietors
against the Commissioners; and that the
Court had power, and was bound to grant
an injunction to prevent the signing and
enrolling of the award until the action was
determined, which the petitioners by their
petition undertook to bring.—Stubber v. Wil-
liamson, 21. C. R. 449; 5 1. Jur. 281. (R.)

5. Quere—Whether the Court has jurisdic-
tion to decide a question on a petition under
the Trustee Relief Act ?

Semble—It has not jurisdiction, under that
Act, to order service of the notice of the
petition on parties resident out of the juris-
diction.

(JURISDICTION. ]

 

by Statute.

The prayer of a petition, and notice thereof
under that Act, should specify the exact
order sought for, and the precise portions of
the fund which are to be transferred to the
several parties entitled—Lx parte Bernard, 6
I. C. R. 133; 21. Jur. N.S. 226. CR.)

6. When the debtor, against whom proceed-
ings have been taken under sec. 104, swears
to a good defence on the merits, and states
facts from which the Court may infer that
there is a serious question to be tried, the
Court will not compel him to enter into a
bond until after the time within which the
action at Law may be tried.—In re M‘Auley, 8
IC. R. 212. (B.)

7. The trustees of a bridge were authorised,
by a Private Act of 1847, to raise by present-
ment out of the county cess, and by instal-
ments, £10,000 for the purpose of building a
bridge. In 1851, when £1600 had been so
raised, another Act was passed, reciting that
£1600 had been levied, and empowering the
trustees to raise the entire unpaid balance at
the spring assizes of 1852. While this Act
was passing through Parliament, and before
it received the royal assent, a further instal-
ment of £1600 was presented by the Grand
Jury, under the Act of 1847. Held, that the
Act of 1851, only authorised the levy of the
unassessed and unpaid balance of the £10,000;
the £8400 being an inaccurate calculation,
by which the Court was not bound.

The entire £8400 having been levied, the
Court ordered the trustees to bring in £1600 to
the credit of a cause petition matter, by way
of information and bill, at the relation of one
of the rate-payers.

The trustees, with the approval, and in
accordance with a resolution of the Grand
Jury, brought into Parliament a billto enable
them to levy a further sum; which Dill was
threwn out by the Lords, for non-compliance
with the standing orders of the House. Held,
that the trustees could not be allowed the
costs of the bill.

A cause petition, by way of information and
bill, should state, and proof should be given
of the individual interest of the person named
as relator.

Quere— Whether the description of the
relator, as a rate-payer, in the title of the
petition and affidavit verifying the petition is
sufficient ?—A ttorney- General v. LeHunt, 8 1.C.
R. 487. (R.)

8. The power given to the L. E. Court, by
the 21 & 22 Vic., c. 72, 8. 72, is discretionary,
and exists in the case of an incumbered and
an unincumbered estate. The landlord’s
consent is not necessary; but the Court
requires clear proof that his interest is not in
any appreciable degree made less secure, less
enjoyable, or less marketable.

If there is any reason to believe that the
petition has not been presented for a bona fide
sale, but to obtain an apportionment, the
Court will make such an order as will appor-
tion the rent, only if the proceedings be duly
a

By Statute.

prosecuted, and the sale had.—In re Comyn’s
Estate, 11 I. C. R. 330. (L.E.C.)

1. The L. E. Court, even in the absence of
an express condition of sale to that effect,
does not guarantee the particulars of tithe
rentcharge, the amount and apportionment
of which are settled by statute. The
rental incorrectly stated the names of the
parties liable to the payment of the tithe
rentcharge, but the same amount was in fact
paid by other parties. A motion by a pur-
chaser to be discharged was refused; but
compensation was given, at the rate of the
purchase for any substantial error of detail—
In ve Moorhead’s Estate, 12 I. C. R. 371; 6
I. Jur. N. 8. 319. (L.E.C.)

2. The L. E. Court has power to sell the
interest created by a lease containing a cove-
nant against assignment, when the lease has
been deposited by way of equitable mortgage.
Ex parie Domville, in re Fowler, 14 I. C. R. 19.
(C.A.)

3. L., agent at Belfast for the owner of a
ship chartered to that port, had acquired
equitable charges on the freight and cargo,
and was also agent for the charterers and
consignees. On the vessel’s arrival he took
possession of her; and in his name the cargo
was landed, and stored with the harbour Com-
missioners, wharfingers. Afterwards a Com-
pany, claiming to be the assignees of the ship
under a bill of sale, served on them a notice,
purporting to be under the 25 & 26 Vic., v. 63;
sec. 68, cautioning them against allowing the
cargo to be removed from their wharfs or
warehouses until the Company’s lien for
freight was discharged. The Commissioners
thereupon refused to deliver any portion of
the cargo to L., who brought against them an
action of trover and detinue to recover it. The
Commissioners applied for an order of inter-
pleader; but no rule was made on the motion
to show cause against their summoning order
being made absolute. The Commissioners
then commenced this interpleader suit, and
moved for an sinjunction to stay the proceed-
ings atlaw. Held, that, notwithstanding the
provisions of the above-mentioned Act, the case
properly formed the subject of an interpleader
suit; and that, this Court’s jurisdiction was
not affected by the decison of the Court of
law.— Belfast Harbour Commrs. v. Lawther, 16
I. C. BR. 34. (C.)

4, In 1817, A. executed a settlement, pur-
porting to comprise X. In 1852, A.’s title to
X. for the first time accrued by virtue of a
conveyance from the I. E. Court; subsequently
A. devised X. to B.

C., tenant in tail under the settlement of
1817, and D.who claimed as mortgagee of C.,
sought as against B. to have X. bound by the
limitations in that settlement. Held, that A.,
and consequently B., took X. discharged from
these limitations.—Jn re Burke’s Estate, 16 I.
C. R. 127. (L.E.C.)

5. In July 1859, a final award ascertained
the price of lands taken by a Ry. Co., which

(JURISDICTION.]

 

469

Concurrent.

did not go into possession, and whose power
to take lands expired in July 1863. On a
summary petition presented under the Rail-
ways Act (Ir.) 1851, the Court refused to
compel the Company to lodge the purchase-
money.

Semble—Even in a suit for specific perform-
ance, the Court will not compel a Company
which have not been in possession of the lands,
and whose compulsory powers have expired,
to pay the purchase-money, though the final
award was made before their powers had
expired. In such a case the Court will leave
the seller to his remedy.—IJn re Cork and
Youghal Railway Co., ex parte Harnett, 16 1. C.
R. 268. (R.)

6. A policy of insurance on A.’s life was
assigned as collateral security for money
secured by mortgage of A.’s lands, which were
subsequently sold in the L. E, Court. The
policy having been for some time kept up out
of the rents and profits of those lands, the L.
E. Court ordered it to be sold for the benefit
of A.’s unpaid creditors. Held, the L. E.
Court had jurisdiction to make that order.—
In re Lynch’s Estate, 171. C. R. 118. (C.A.)

7. A Judge of the L. E. Court has not
jurisdiction to permit any party to file, after
the specified time has expired, an objection
to a final schedule of incumbrances.—ZIn re
Flood’s Estate, 171. C. R. 116. (C.A.)

 

Il]. Concurrent JURISDICTION: HOW ArF-
FECTED BY OTHER REMEDIES GIVEN
By STATUTE OR ASSUMED BY OTHER
Courts.

8. In annuity cases the Court of Ch. has a
jurisdiction concurrent with that of Courts of
Law. Therefore it can entertain a suit to
raise arrears of an annuity, though the deed
granting the annuity enables the grantee to
distrain, and though the bill does not aver
that any substantial difficulty prevents ptf.
availing himself of this remedy.—Manly v.
Hawkins, 1 Dr. & Wal. 363. (C.)

9. J., entitled to a jointure, by articles of
Nov. 1799, assigned it to her son, C., in consi-
deration of a covenant by C. to pay the head
rents of the lands of §., &c., and of his giving
J. aright of distress on the lands of B., if he
made any default in paying those head rents.
Held that, notwithstanding the legal remedy
provided by the articles, a bill for an account
on foot of the payments made by C. respect-
ing those head rents, and for a receiver, was
maintainable.— Goodwin v. Jeffreys, 1 Dr. &
Wal. 375. (C.)

10. The deed reserving a fee-farm rent out of
lands thereby conveyed in fee was of ancient
date. The rent, after various mesne assign-
ments, was vested in the plaintiff as assignee,
and was in arrear. The estate conveyed by the
deed, after various mesne assignments, was
vested in the defendant as assignee. Upon u
bill by the assignee of the rent, praying a
470 [CONCURRENT

receiver, &c., and the defendant’s answer, ad-
mitting the plaintiff’s title, but insisting that
his remedy was at Law, the Court granted a re-
ceiver over the premises conveyed by the deed,
to pay the arrears and future accruing gales of
the rent, although the deed contained clauses
of distress and re-entry in case of non-pay-
ment.— Stevelly v. Murphy, 2 I. E. R. 448, (R.)

1. An agreement for the payment of a per-
sonal annuity for the joint lives of A. and B.
will be specifically performed, and the defend-
ant directed to pay it, on the ground that there
is no adequate remedy at Law.

A number of cases have been cited on both
sides, and the result of them all is, not that
wherever there is a remedy at Law, relief will
be refused in Equity, but that when the relief
at Law is equally beneficial and equally ef-
fectual with that which may be obtained in
Equity, there the Court will refuse to inter-
fere. Upon that ground, where an annuity is
charged on land, although there is a remedy at
Law, yet as a Court of Equity alone can give
the appropriate relief, by the appointment of
a receiver, a bill for that purpose will be en-
tertained.—Swift v. S., 3 1. E. R. 267. (C.)

2. At the Crown’s suit the Court may inter-
fere to restrain a bishop from wasting the pro-
perty of the see; or at the suit of the patron of
a living, to restrain the incumbent from wast-
ing the glebe-house or lands.

Semble—As to the church and churchyard,
the Ecclesiastical Court having, ratione loci,
the proper jurisdiction, this Court has never
interfered to restrain the incumbent’s acts re-
specting them.—Larl Fitzwilliam v. Moore, 3
I. E. R. 615; Fl & K. 287. (R.)

8. A judgment creditor seeking to have his
debt charged under the 3 & 4 Vic., ¢. 105, s. 23,
upon a fund impounded, and standing in the
name of the Accountant-General of the Court
of Ch., ought to present his petition to that
Court in the first instance. If he thinks pro-
per to resort to a Law Court for the charging
order, he must afterwards come here and ob-
tain liberty for the Accountant-General to act
under it, so as to prevent a clashing of juris-
diction.

The Accountant-General of this Court has
no right to attend to any order inconsistent
with or varying the order of this Court, without
this Court’s special direction to do so.— Gore v.
G., 41. BE. R. 164. (R.)

4, The fact of a penalty being agreed to be
recoverable at Law for the doing of an act co-
venanted not to be done, will not oust the ju-
risdiction of Equity to restrain by injunction
the doing thereof, unless it appears to have
been the intention of the parties that the act
might be done upon paying the penalty.—
French v. Macale, 2 Dr. & War. 269; 1 Con. &
L. 459; 41. E. R. 568. (C.)

5. When a Court of Equity has jurisdiction
on any part of a case, and a covenant also,
upon which the parties might proceed at Law,
forms part of it, the Court will, to avoid cir-

 

JURISDICTION. ]

cuity of action, give relief by way of damages.
—Martyn v. Blake, 3 Dr. & War. 125; 2 Con. &
L. 65; 51. E.R. 72. (C.)

6. A bill for a chief rent is sustainable in
this Court, when, in consequence of the acts of
the party liable to pay such chief rent, all the
difficulty in the way of plaintiff’s proceeding
at Law has been occasioned.—Archbishop of
Dublin vy. Lord Trimleston, 2 Dr. & War. 535.

(C)

7. The vesting order under the English In-
solvent Act transfers to the assignee the pro-
perty of the insolvent, subject to the operation
of the laws in Ireland relating to such pro-
perty. A creditor by judgment, prior to the
date of the vesting order under the English
Act, is entitled to obtain a receiver over the
lands of the insolvent in Ireland.—Reilly v.
Jacob, 71. E.R. 199. CR.)

8. The Court will not entertain an applica-
tion that further searches should be furnished
to a purchaser; being an application to be
made to the Master in Chancery.—Lalor v.
Drew, 71. E. R. 202. (R.)

9. A lessee for years leased for his own
term, reserving a profit rent. The deed con-
tained a covenant for payment of the rent,
and a clause of distress for non-payment.
The lessee filed a bill to raise arrears of the
rent. Held, that the suit could not be enter-
tained merely on the ground that, because
ptf. had not any reversion, his legal remedies
were rendered more difficult of enforcement
than they would otherwise have been.— Cre-
men v. Hawkes, 8 I. E. R. 1538; 2 Jon. & L.
674. (C.)

10. A bill in Equity does not lie to recover
the arrears of a rentcharge, unless it be
proved that there are circumstances which
render the legal remedies useless or very diffi-
cult.—Brady v. Fitzgerald, 12 I. E. R. 273. (C.)

11. By the custom of an Inferior Court, on
an affidavit of debt, an attachment issued
against the goods of the defendant below;
and unless he could procure bail to pay such
debt, damages, expenses, and costs as should
be awarded against him, the defendant below
could not enter an appearance, or have a
trial of the action on the merits. A party so
circumstanced filed a bill for an injunction,
stating that he was not indebted to the de-
fendant here, who had brought the action in
the Inferior Court. Held, that the Court had
no power to grant the injunction.

emble—The proper course is a writ of error
to the Court of Q. B. or C. P.

Quere—Whether such custom be valid?—

M‘Anaspie v. Dickson, 13 I. E. R. 233. (R.)

12. In granting injunctions, to prevent the
infringement of trade-marks, the Court exer-
cises its jurisdiction in aid of Courts of Law,
i.e., when an action at law cannot be main-
tained; but does not exercise an independent
jurisdiction.—/vot v. Lea, 13 I. E. R. 484. (R.)
[CONCURRENT

1. A Ry. Co. contracted with J., by articles
under seal, to work their railway. By this
contract the rolling stock of the Co. was to
be valued, and to be handed over to J., who
was to work the railway with that stock at
mileage rates, from which were to be sub-
tracted payments by way of remuneration for
the use of the stock, and £5 per cent. as a
depreciation fund. J. was bound to restore
stock equal in value to that which he re-
ceived. Valuations of the stock were made
at the commencement and during the con-
tinuance of the contract, on the assumption
that this depreciation fund was merely to be
a guarantee to the Company, and and was not
to belong to them eventually, save so far
as depreciation had actually occurred. The
engineer of the Company was privy to these
valuations. On the faith of the depreciation
fund being a guarantee, J. made considerable
expenditure, which diminished or prevented
the depreciation of the rolling stock. On the
termination of the contract, J. brought an
action against the Company for various sums
which he alleged to be due under the articles.
In that action he recovered damages: but it
was there decided, at N. P., that, on the
true construction of the articles, the £5 per
cent. was not a guarantee fund, but belonged
to the Company in all events.

Held, that notwithstanding that decision of
the Court of Law, J. was entitled, in Equity,
to have the £5 per cent. treated as having
been a guarantee fund.

When expenditure for the benefit of one
party to a contract has been made by the
other, under a mistaken idea of the true con-
struction of the contract, which for a time
was entertained by both parties, the party
making the expenditure is not necessarily
precluded by an adverse judgment at Law, in
an action upon the contract brought by him-
self, from obtaining relief in Equity in re-
spect of the expenditure so made.

On a re-hearing, documentary evidence
which was not offered at the original hearing
may be received, but depositions for anything
more than identifying such documentary evi-
dence cannot be given.—Johnson v. Midland
Gt. W. Railway Co., 5 I. C. R. 264. (C.)

2. Upon the marriage of J., managing
director of a Joint-stock Bank, with E.,
£10,000 was assigned upon trust for E.,
for life, for her separate use, remainder to
J. for life, remainder to the issue of the
marriage. This sum was lodged in the bank,
in the names of the trustees, and deposit
receipts were issued for the amount in favour
of the trustees. Immediately afterwards the
money was paid out by the bank to the brother
of J., and the deposit receipts, which were
indorsed by only one trustee, were taken up.
J. then sent to one of the trustees an ordinary
receipt for the £10,000, which, according to
practice, did not require the periodical pro-
duction of it to the bank. This receipt falsely
stated the money to be then in the bank, and
was signed by the then manager. Letters,
leading to the same belief, were subsequently
written by J.; and as each gale of interest

 

JURISDICTION.] 471

fell due, a draft was sent by E. to the trustees,
which, when returned signed, was handed over
by E. to J., by whom the amount was sup-
posed to be received. In 1856, twelve years
after the money had been paid out, the bank
stopped payment. Held, that the Statute of
Limitations was not a bar to a suit by one of
the trustees to recover the money.

That even if relief could be had at Law, a
Court of Equity had concurrent jurisdiction.
Wheatley v. M‘Dowell, 3 I. Jur. N. S. 285. (C.)

8. When the point on which an appeal is
taken was not raised in the Court below, the
Court will order the Registrar to attend in
the Court of Appeal, but will not annex a
statement to that effect to the schedule of
evidence.—Zn re Craig, 81. C. R. 214. (B.)

4, Two administration suits were instituted ;
one in the Court of Ch. in England, and the
other in the Court of Ch. in Ireland. The
former suit was by the executor, who resided
in England; the latter by residuary legatees,
who were not served with a copy of the Eng-
lish bill. The usual order, under the Court of
Ch. (Jr.) Reg. Act, 1850, s. 15, was made in the
Trish suit on the 19th Dec. 1856. The execu-
tor entered an appearance on the 26th Jan.
1857. He obtained a decree to account in
the English suit on the 7th March 1857. An
order was made in the Irish suit on the 18th
April 1857, directing that the petition should
stand for a charge, and directing the executor
to file a discharge, setting forth accounts;
which order was amended on the 7th Dec.
1857, by directing an account of debts and
legacies. The executor filed a supplemental
bill in England, to bind the petitioners in the
Irish suit by the proceedings in the original
suit ; and on the 18th March 1858, the Master
in the Irish suit made an order to restrain the
executor from proceeding with the supplemen-
tal suit in England. Held, on appeal from the
last order, following Stokes v. Coltsman (1 I.
C. R. 44), that the order of the 19th Dec.
1856 was a decree to account, this Court being
bound by that decision.

That the Court of Ch. in Ireland had juris-
diction to restrain the executor from proceed-
ing with the English suit.

That the executor, being resident in Eng-
land, had a right to protection from the Court
of Ch. there, against the demands of creditors,
which the Court of Ch. in Ireland could not
give him.

The Court, therefore, varied the order of
the 8th March 1858, and made an order re-
straining the executor from proceeding in the
English suit without the leave of the Master
of the Rolls in England.

Semble—The order of the 18th April 1857
was not a decree to account.—Parnell v. P.,
71.C. R. 322; 31. Jur. N.S. 382. (R.)

5. Two suits were instituted for the adminis-
tration of the same estate; one in the Court
of Chancery in England, by the executor; the
other in the Court of Chancery in Ireland, by
a minor, one of the residuary legatees. The
latter suit was referred to the Master, under
the Ch. (/r.) Reg. Act, 1850, s.15. The estate
472 Concurrent.
was sufficient to meet all the claims upon it, and
the costs of both suits. The M. R. in England
directed an application in the suit in Ireland
as to which cause should proceed. The Court
having regard to the solvency of the fund, and
the fact of the petitioner in the Irish suit being
a minor, and interested as one of the residuary
legatees in sparing the fund, and to the smaller
expense of the suit in Ireland, and disapprov-
ing of the manner in which the English suit
had been conducted, directed that the Irish
suit should proceed.—FParnell v. P., 81. C. R.
556. (R.)

1. One of two tenants in common, under a
lease, by written agreement, let his portion to
his co-tenant, at a rent. An action for use
and occupation having been brought by his
representatives after his death, they were non-
suited, on the supposition that the lease created
a joint tenancy ; a clause in the lease that it
should create a tenancy in common not having
been brought under the Judge’s attention. A
petition was thereupon filed, praying that it
might be declared that the lease, which was
taken for trading purposes, created a tenancy
in common in Equity, and for payment of the
rent. Held, that as there was a remedy at Law,
the suit could not be maintained.

Semble—An action at Law, on the special
contract, could have been maintained, though
the lease created a joint tenancy. Held, that
as the lease created a tenancy in common, an
action at Law for use and occupation, or on
the special contract to pay the rent, could be
maintained.—J/' Carthy v. Barry, 9 I. C. R.
377. (R.)

2. A. demised lands for lives renewable for
ever at £7)) a-year. A. afterwards agreed to
purchase the lessee’s interest, then vested in
B., in consideration of a perpetual rentcharge
of £20 a-year. To carry out the contract, B.
demised the lands for thesame lives, renewable
for ever, at a rent of £90 a-year, to C., in trust
for A. C. died. The interest in the latter
lease became vested in B. as C.’s heir-at-law.
Held, that a suit could be maintained by B.
for a receiver, to recover the arrears of the
profit rent of £20, there being no remedy for
it at Law.— Tobia v. Redmond, 11 1. C. R. 445;
61. Jur. N.$. 121. (R.)

 

IV. As BETWEEN JUDGES OF DIFFERENT OR
Superior Courts or Equiry: Tupir
SEPARATE POWERS.

[As to jurisdiction of the Court of Ex-

chequer, see 1 W. 4, cv. 65, s. 37.)

3. On a petition to quash a writ of error
from an Inferior Court, returnable to the
Court of C. P., the question being, whether
such writ could be made returnable into the
C. P., the Lord Chancellor declined to adjudi-
cate, and directed the parties to proceed with
the writ, and argue the question in the C. P.—
Toole v. Duffy, 2 Dr. & War. 878. (C.)

4. Devise of real estate, upon trust to sell
to pay debts, and, subject thereto, to the use

[JURISDICTION.]

 

Separate.

of A. for life, remainder to his first and other
sons in tail. In a suit in the Court of Ex. a
sale was decreed, and a sale had. A. died pend-
ing the suit. His eldest son was a lunatic.
Held, that as the Court of Ex. had not any
jurisdiction in matters of lunacy, the Court of
Ch. would not adopt that decree and sale,
and make an order under 1 W. 4, c. 65, s. 28,
for the committee of the lunatic to execute
the deed barring the entail of the lunatic’s
estate—Jn re Skerrett, 2 Dr. & War. 585. (C.)

5. The Superior Court will not give effect.
to the judgment of an Inferior Court, if it
appears upon the proceedings, that a jurisdic-
tion to adjudicate upon the subject had not
been acquired when the judgment was given.
—Thompson v. Sheil, Fl. & K.53; 31. E.R.
135. (R.)

6. When there is a decree in a suit in the
Ex., under which a creditor can have full
relief, that Court will restrain him from pro-
ceeding in a suit in Chancery against the same
estate.—Pidgeon v. D’Alton, Jon. & Ca. 276;
31. E.R. 134, (.E.)

7. Quere—Whether the jurisdiction of the
English Court of Ch. is paramount to that of
the Irish Court of Ch.? — Ridge v. Newton, 2
Dr. & War. 239; 1 Con, & L. 381; 41. E.R.
389. (C.)

8. The officer of this Court ordered to
attend in the Court of Ch., at the hearing of
a cause there, with an answer sworn in this
Court, but the signature to which was im-
peached as a forgery in the Ch. cause.— Grove
y. Bowen, 6 1. E. R. 656. (E.E.)

9. In a judgment matter pending in this
Court, the respondent having filed a bill in
Ch. against the petitioner, for an account, and
the petitioner having obtained an order here
for a receiver, motion of the respondent to
discharge that order refused with costs.

The application should have been in the
Ch. cause.—Smith v. Murphy, 7 I. E. RB. 304.
(E.E.)

10. When an order for a sale of lands has
been made by the I. E. Court, and a certificate
thereof has been transmitted to the Court of
Ch., the latter Court is bound by the 12 & 13
Vic., c. 77, s. 42, to stay all suits or proceed-
ings in which a decree for sale of the same
lands has been pronounced. But when no
such decree has been made that sec. leaves it
at the discretion of the Court whether or not
to stay any other suits and proceedings ; even
although their object should be to procure a
decree for a sale of the same lands.

After the institution of a foreclosure suit,
and the filing of the answer of certain de-
fendants in that suit, who were incumbrancers
prior to the plaintiff, a petition was presented
by a near relative of those defendants to the
I. E. Court, and an order made thereon for a
sale of the mortgaged premises. Afterwards
a motion was made, under the 82nd G. O. of
1843, on behalf of those defendants, to dismiss
[SEPARATE JURISDICTION. ]

the bill for want of prosecution. This Court
refused that motion with costs; but proprio
motu, stayed the suit.—Bernardv. Bond, 1 I. C.
R.198; 21. Jur. 311. (C.)

1. Lands were under a receiver of the Court
of Ch. An absolute order had been made for
their sale in this Court. On an application
for an injunction against parties for felling
timber and committing waste, the Court, con-
sidering the urgency of the matter, granted
the injunction; but, in order not to interfere
with the jurisdiction of the Court of Ch., made
it only for one week, and directed that, mean-
while, application should be made by the
receiver to the Court of Ch.—Jn re Richardson,
31. Jur. 246. (1.E.C.)

2. W., claiming to be entitled to a compen-
sation fund, which had been deposited in bank
as the purchase-money for lands taken by the
Company, became insolvent, having previously
given R., one of his creditors, a specific charge
on that fund. R., in right of such specific
lien, presented a petition, for the application
of the fund in discharge of the debts and
incumbrances affecting it, according to the
provisions of the Company’s Special Act; for
the usual reference for that purpose ; and for
payment by thé Company of the costs. A
cross petition was subsequently presented by
the insolvent to obtain a transfer of the fund to
the Insolvent Court for administration there.
Held, that the creditor having a specific charge
on the fund was entitled to have the order
as prayed; the costs payable by the Company
to be reserved until after the return of the
Master’s report.

That the cross petition was not sustainable
by the claimant, either as an insolvent, or
under the provisions of the Act, and should
be dismissed with costs, to be paid by him to
the first petitioner—IJn re The G. S. & W.
Ry. Co. vy. Rosenthal, ex parte Wilson, 3 1. Jur.
320. (R.)

8. An application for liberty to appeal from
an order of the Court of Appeal in Ch. to the
H. of Lords ought, after the lapse of a year
from the date of the order, to be made to the
Chancellor.

Notwithstanding the lapse of time, leave to
appeal may be given, if there be a bona fide
ground for appealing, and the delay has arisen
from bringing forward further matter to
complete the record.—In re Reilly, 8 I. C. R.
455; 41. Jur. N.8. 187. (C.)

4. Lands were sold in the I. E. Court, and
the proceeds brought in to a cause pending in
the Court of Ch., to be administered. W.,
the first incumbrancer, was not made a party
to the suit, and the fund was paid out to P.,
a puisne incumbrancer. Held, that P. was
liable in a suit instituted for the purpose of
making good to W. the amount which he had
so received.— Walker v. Power, 9 I. C. R. 527;
51. Jur. N. 8.13. (C.A.)

5. A petition by an executor, for the admi-
nistration of the testator’s personal estate,
stated and relied on a deed, whereby a portion

 

473

of the assets was assigned to the petitioner.
The matter was referred to the Master, under
the Ch. Reg. Act 1850, s. 15: no charge or
affidavit was filed impeaching the validity of
the deed. Held, that the Master had not any
jurisdiction to decide on oral evidence, and
documents produced before him, whether the
deed was or was not fraudulent and void as
against creditors, under the 10 Car. 1, v. 3, Ir.
(13 Eliz. c. 5, Eng.)

That it was not necessary to give the Master
such jurisdiction, that a cross petition should
be filed to set aside the deed.—Carter v. Dicken-
son, 1381. C. R. 109. (R.)

6. The L. E. Court will not set aside deeds,
where they deal with other properties not
under the control of the Court, or where they
contain obligations of an important character
not connected with the estate which the
Court is required to sell, or has sold; but will
leave the parties to proceed in Ch. But the
Court has jurisdiction to dispose of all ques-
tions which arise incidentally in reference to
any estate or fund under its control.

The L. E. Court will not allow the party
having the carriage of the order for sale to
buy up charges on the estate at an undervalue,
for his own benefit, pending the proceedings.
It is sufficient proof of undervalue if a greater
sum is reported on foot of the charge than the
amount given for it, with interest.

The L. E. Court will set aside the sale of a
charge at an undervalue, made to the party
having the carriage, on the application of the
party making the assignment, who has even a
better equity to set aside the sale than the
owner or puisne creditors have, to have it de-
clared a trust for them.—Jn re Ronayne’s
Estate, 13 I. C. R. 444. (L.E.C.)

7. G. was a joint and simple contract credi-
tor of H. and W. A suit was instituted to
administer the real and personal estate of H.
and W., in which suit G. proved his demand.
In Jan. 1857, a report was made in this suit,
by which the Master found that, the parties
interested so desiring, he had not taken an
account of the personal estate of H., and
he inserted G.’s claim only in the schedule
of the debts of W.

In Feb. 1857, the cause was heard, the re-
port confirmed, and a decree made accord-
ingly.

In Jan. 1862, G. filed a petition in the nature
of a bill of review, to vary this decree. Held,
that the Court of Appeal had jurisdiction
to entertain this petition; that G., not being
a party to the original suit, but having merely
come in to prove his debt, was not bound by
the consent of the parties interested; and
that he had not lost the right to vary his
decree by his delay — Walsh v. W., 13 1. C. R.
496. (C.A.)

 

V. JURISDICTION OVER, AND IN ProTEcTION
OF ITS OWN OFFICERS: OVER ITS OWN
Proceepines: Enrorcine 1T8 Own
Decisions.

8. The Court will not interfere in a sum-
mary way to compel an officer to pay debts

60
474 Over its Officers,

contracted by him, but not connected with
his office. If, however, by claiming a privi-
lege more general than he is entitled to, he
has evaded arrest under a ca. sa., he will be
ordered to pay the amount of the execution,
with costs of the application.

Semble—Whilst an officer receiving a salary
given by statute conducts himself properly in
his office, the Court has not jurisdiction to
dismiss him.—Kane v. Stewart, 8. & Sc., 84, n.;
1 Jones, 630. (E.E.)

1. M., solicitor and general law agent for
L., having lately received from him £3000, in
full discharge of all demands for costs, &c.,
lent him £500, for which L. passed his bond
and warrant, subject (as now alleged) to an
agreement that judgment was not to be en-
tered upon the bond; and that the loan was to
be repaid out of £600, which M. was about to
receive as L.’s attorney on account of the fine
for a lease to be granted by L. M. received
the £600 as attorney for L., and retained out
of it £500. L. having died soon afterwards,
M., in two days after L.’s death, entered judg-
ment upon the bond, and assigned it for full
and valuable consideration. The amount was
now claimed by the assignee out of L.’s estate.
It was not alleged that L. had incurred any
further liability for costs to M. after payment
of the £3000. L. had little personal property,
but was seized of large real estates, and de-
vised all his property to trustees, and ap-
pointed a sole executrix, who proved the will.
Upon a petition, presented by the sole acting
trustee of the will, without the executrix.
stating the foregoing facts as to the loan and
agreement between M. and L., &c., and set-
ting forth a letter purporting to be from M.
to L., and of equal date with the bond, as evi-
dence of the agreement, and praying that M.
might be ordered to pay over the £500, part
of the £600 received by him, in satisfaction
of the judgment,—Held, that the Court had
jurisdiction to make the order. But M. having
positively sworn that the letter stated in
the petition, and afterwards exhibited to
him before making his affidavit, was a for-
gery, and contrary to the agreement between
him and L., which, as he alleged, was, that
the £500, part of the £600, was to be re-
tained by him on account of an accommoda-
tion bill for £500, which he had accepted for
L., and not in repayment of the loan for
which the bond was passed, and it appearing
that such alleged bill, though more than a
year and a half overdue, had never been pre-
sented to M., or to the trustees or executrix of
L.’s will; and it not appearing that such Dill
had ever been negotiated, or in whose hands
it now was, the Court directed an issue to try
whether the letter stated in the petition was
in M.’s handwriting or not. The jury having
found that it was in his handwriting, the
Court ordered M. to pay the amount of the
judgment so entered and assigned by him, to-
gether with the petitioner’s costs of the issue
and of the several petitions in this matter.—
Bucke v. Murphy, 3 1. E. R. 373; Flan & K.
173. (R.)

[JURISDICTION.]

 

and other Courts.

2. This Court has not authority to order
a solicitor’s personal representatives to have
his costs taxed, though they possess the client’s
deeds.— Turkington v. Kiernan, 9 I. E. R. 477.
(R.)

3. When a solicitor has a general lien upon
papers of his clients, which are required for
the purposes of a suit, the Court can force
him to bring in the deeds; and can preserve
his rights as they existed, on the papers.—
Edge v. Billing, 1 I. Sur. 285. (E.E.)

 

VI. JuRISDICTION OVER OTHER CouRTS: OF
FOREIGN COURTS AND MATTERS, AND
oF PERSONS OUT OF ITS JURISDIC-
TION.

4. Pending a suit in the Ecclesiastical
Court to recal probate, a Court of Equity
will entertain a bill to preserve the assets.
The Ecclesiastical Court’s power to appoint
an administrator pendente lite is not an ob-
jection to such a bill.— Thomas v. T., 2 I. E.
R.109. (E.E.)

5. The Superior Court will not give effect
to the judgment of the Inferior Court, if it
appears upon the proceedings that a jurisdic-
tion to adjudicate upon the subject was not
acquired when the judgment was given.—
Thompson v. Sheil, 3 I. E. R. 135; Fl. & K. 53.
(R.)

6. When a question arises in consequence of
estates in Scotland being devised to a person,
the Court will not adjudicate upon that ques-
tion until it has been ascertained, by a reference
to one of the Masters, whether the estates did
pass by the Scotch law or not.—Jf- Cally. M‘C.,
2 Con. & L. 184. (C.)

7. A receiver having been appointed by the
Court of Chancery in England, over estates in
Ireland, and the recognizance directed to be
taken and enrolled in this Court, this Court
refused to do so, having no jurisdiction with-
out a bill filed here.-Jn re Earl of Portarlington,
81. E.R. 369. (R.)

8. By the decree of this Court, a feme sole,
a subject of Great Britain, was decreed en-
titled to a certain sum, to be realised by a
sale of certain lands. Afterwards, and be-
fore the sum was realised, she intermarried
abroad with a subject of the Austrian Empire,
and continued to reside with her husband in
that empire. Afterwards, the sum being
realised, and in Court, an application made on
behalf of the husband and wife, that the money
should be paid out to their attorney, on a war-
rant executed abroad by them; and on an affi-
davit, stating that, by the laws of the Austrian
Empire, the sum would be at the absolute dis-
posal of the wife, was granted; the Court,
under the circumstances, not requiring that
the husband should thereout make any settle-
ment on the wife, or that any commission
for her separate examination should issue.—
Hutchinson v. Cathcart, 8 I. E. R. 394. (E.E.)

9. This Court has jurisdiction to set aside a
Over other

fraudulent sale in the Insolvent Court. But
it will not be exercised if there be a remedy in
the latter Court.

Semble—A detaining creditor of an insol-
vent cannot file a bill for a sale on foot of his
judgment, under the 3 & 4 Vie., c. 105—Ma-
guire v. O'Reilly, 9 I. E.R. 335; 8 Jon. & L.
224, (C.)

1. A., being seized of large estates in Ire-
land, but being resident in England, died
there, and by will, made B. testamentary
guardian to his daughter, a minor. B. im-
mediately applied to and made the minor a
ward of the Court of Ch. in England, and got
herself appointed guardian of the person and
fortune. The minor’s mother, being resident
in Ireland, presented a petition to make the
minor a ward of the Court of Ch. in Ireland,
and to appoint a receiver over the estates.
The Court granted a reference to the Master
to inquire whether B. had been duly appointed
guardian of the person and fortune, and if
not, then to appoint a proper person as such,
with the directions usual in minor matters, B.
to have notice of all such proceedings; and
also that the Master should have regard to
the proceedings in England, and should report
whether it was for the benefit of the minor
that she should be made a ward of the Court
of Ch. in Ireland, or that the petition should
have been only for the appointment of a re-
ceiver, and reserved the question of costs.

Quere—Can a minor, who has been made a
ward of the Court of Ch. in England, be also
made a ward of the Court of Ch. in Ireland?
In re Morgan, 71. Jur. 217. (R.)

2. To procure the winding up of a Mining
Company under the Winding-up Acts, one
shareholder filed a petition making several
charges of fraud against the directors (tend-
ing to show that the Company was not a bona
Jide concern); and of trafficking in the shares,
fabricating reports, neglecting to give the
petitioner notice of their meetings, refusing
him access to the books, and that the mines
had stopped working. The petition was veri-
fied in the short form. There were no other
affidavits in support of it. The directors, by
their affidavits in reply, denied the charges,
but did not produce the Company’s books
which the petitioner relied on to support the
petition. Under these circumstances, and the
directors agreeing to give the petitioner an
opportunity of inspecting the books, the peti-
tion was directed to stand over to enable the
Company either to continue the works, or to
discontinue them and wind up the Company,
if the shareholders should so determine; re-
serving to the petitioner liberty to apply to
the Court, if so advised; petitioner to pay
the costs of the appearance of the directors
who appeared on the motion, but reserving
the question of costs generally.

When a Mining Company keeps all its
offices and books in England, but works mines
in Ireland, the Court of Ch. in Ireland has
jurisdiction under the Winding-up Acts.—
Hoare v. Hibernian Mining Co., 11. Jur. N.S.
228. (R.)

[JURISDICTION.]

 

Courts, §c. 475

3. An English solicitor transacted business
in England for a client, who then resided
there, but came subsequently to reside in Ire-
land, where a bill of costs was served upon
him by the English solicitor, who proceeded
at law in Ireland to recover the amount. The
client petitioned for a taxation of the bill
under the statute. Held, that the Court in
Ireland had no jurisdiction to direct the tax-
ation of an English bill of costs. The ques-
tion of the costs of the motion having stood '
over till the termination of the action at law,
and more than one-sixth having been struck
off the bill ona reference to the Master of the
Law Court, no costs of the petition or of this
motion were given.—Roe vy. Dodd, 11. Jur. N.
8. 250. (R.)

4, A trader residing and carrying on busi-
ness exclusively in Ireland was, whilst within
the district of an English Court of Bank-
ruptcy, adjudicated bankrupt by that Court.
Held, that such adjudication was void as
against a subsequent adjudication by the
Irish Court of Bankruptecy.—In re Rogers, 9
I.C. R. 150. (C.A.)

5. A. and B., being seized of lands in Ire-
land, and entitled to interest on a mortgage
of lands in Ireland, by deed of 1839 conveyed
the lands and mortgage to C. and D. during
the lives of A. and B., and the life of the sur-
yivor, upon trust, by sale, mortgage, or grant
of annuity, to raise money to pay off the debts
of A. and B. By deed of the 15th July 1840,
A., B., C., and D. granted two annuities to
E., to be charged upon and issuing out of the
property comprised in the trust deed. A. and
B. by this deed covenanted to pay the annui-
ties. By a deed of the 26th June 1840, which
recited the deed of the 15th July 1840, as if
it had been previously executed, A. and B.
assigned the interest in a fund in the Court
of Ch. in England, upon trust, among other
things, to secure the annuities granted by the
deed of the 15th July. All the parties, ex-
cept E., resided in England, and the prelimi-
nary agreement was made in Ireland, through
an agent of C. and D., there resident. The
deeds were executed by A., B., C., and D. in
England upon Irish stamps, but delivered to
E. in Ireland; and warrants of attorney to
enter judgment in both countries against A.
and B., further to secure the annuities, were
also executed in England. The consideration
for the annuities was paid in Ireland in notes
of the Bank of Ireland, and applied by the
trustees on the trusts of the deed of 1839.
Held, that the grant of these annuities came
within the exception in the English Annuity
Act, 53 G. 3, c. 141, s. 10, and was not void-
able for want of compliance with the formali-
ties imposed by that statute.

That a puisne incumbrancer on A.’s interest
could not impeach the annuities by a discharge
in a suit to administer the fund (the prodace
of the mortgage) on which the annuities were
a charge.—Bannatyne v. Barrington, 9 1. C. R.
406; Dr. Rep. temp. Napier, 459. (C.A.)

6.. When the Judge of the Court of Probate
directs issues respecting testamentary papers,
476 Over other Courts.

the Court of Appeal will not vary his order,
merely on the ground that the issues directed
do not exclude all consideration of questions
of law.— Newton v. Newton, 11 I. C. R. 239; 6
I. Jur. N.S. 1. (C.A.)

1. A mere defect in pleading, though ground
of general demurrer, will not, after verdict,
render a judgment null and void, where a good
cause of action is stated in the count.

A count of the declaration in a Colonial
judgment, recovered in an action framed in
assumpsit, did not aver the plaintiff’s readi-
ness to perform his part of the contract; but
disclosed a good cause of action for malfeas-
ance. Held, that a Court of Equity would not
treat the judgment as void, though the objec-
tion to the declaration might have been good
on general demurrer.

But the time for appealing from the judg-
ment having elapsed, the Court gave time to
the parties to apply to the Judicial Committee
of the P. C. in England for liberty to appeal,
or to apply to a Court of Law for liberty to
plead to an action which had been commenced
on the judgment.

Grounds on which a Foreign judgment is
examinable.—Jack v. Tease, 12 I. C. R. 279;
71.Jur.N. 8.9. (R.)

2. L., agent at B. for the owner of a ship
chartered to that port, had acquired equitable
charges on the freight and cargo; and was
also agent for the charterer and consignees.
When the vessel arrived at B., L. took pos-
session, and the cargo was landed and stored
in his name with the B. Harbour Commis-
sioners, wharfingers. Afterwards, the M. I.
Co., claiming to be assignees of the ship under
a billof sale, which, though really a mortgage,
purported to be an absolute assignment, served
on the Commissioners a notice (expressed to
be under the M.S. Act. Am. Act. 1862, 25 &
28 Vic., c. 63, s. 68), cautioning them against
allowing the cargo to be removed from their
wharves or warehouses until the Co.’s lien for
freight was discharged. The Commissioners
refused to deliver up any portion of the cargo
to L., who sued them in trover and detinue
in the Court of C. P. The Commissioners
applied for an interpleader order under the
9& 10 Vic. c. 64. A summoning order was
granted. On showing cause, the Court differed
in opinion, and no rule was made upon that
motion. The Commissioners then instituted
this interpleader suit against L. and the M.
I. Co. Held, that the 25 & 26 Vic., c. 63, ap-
plies only to the case of a lien for freight
claimed by the ship-owner against the owner
of the cargo; and that the present case, being
one of conflicting claims touching the owner-
ship of the freight, and between the mortgagor
and mortgagee of the vessel, was not within
the Act.

That the case was properly the subject of
an interpleader suit ; and that the jurisdiction
of this Court was not affected by the decision
of the Court of C. P.

Before the mortgagee of a ship obtained

(JURISDICTION. ]

 

In Law, fact, §c.

charterers and consignees, arranged with them
that the freight should be discharged by a
sale to him of part of the cargo, instead of
payment being made as the chartet-party pro-
vided. Upon this arrangement the cargo was
landed, and stored with wharfingers. Held,
that the mortgagee’s lien for freight was ended.
When portion of a vessel’s cargo is shipped on
her owner’s account, a mortgagee, who takes
possession under his mortgage, cannot claim
freight with respect to that portion.—B. H.
Commissioners v. Lawther, 17 I. C. R. 54. (C.)

 

VIL. Jurispiction 1x Marrers or Law,
Fact, anp REVENUE.

1. When a Court has, or will exercise it.

3. Quere—Have Courts of Equity any juris-
diction respecting tithes, except as incident to
their jurisdiction in amount, and in enforcing
discovery ?—Disney v. Taaffe, 1 Dr. & Wal.
94; S. & Sc. 113, 2. )

4. Bill for specific performance of an agree-
ment to grant a lease, and for an injunction
to restrain execution of an habere. On answer
filed, the injunction was continued on the
terms of plaintiff's giving security for the
mesne rates by recognizance. On the hearing,
the bill was dismissed with costs. The de-
fendant brought an action for the mesne rates
against the plaintiffs, and recovered judgment.
Upon motion of the defendant’s executor, the
plaintiffs were ordered to pay the amount of
the judgment within ten sitting days after
service of the order. Notwithstanding the
dismissal of the bill, the Court retains juris-
diction to make such an order, the recog-
nizance being substituted, in ease of the
plaintiff, for an actual lodgment of the money
in Court; in which case the Court, even after
the dismissal of the bill, would have jurisdic-
tion to make an order for payment of the
money.—Popham v. Baldwin, 2 I. E. R. 3856.—
[See Costello v. Hunt, ibid, note.] (E.E.)

5. Quere—If a bill by a wife, suing by her
next friend, be dismissed with costs, has the
Court jurisdiction under the 3 &4 Vic., c. 105,
or otherwise, to appoint « receiver (for pay-
ment of the costs) over her separate property
which was not the subject of her suit ?—
Hackett v. Farrell, 4 1. E. R. 515; FL & K.
549. (R.)

6. The Court having continued an injunc-
tion to the hearing, on the terms of the
plaintiff entering into security by recognizance
for mesne rates, made an order, as in the
cause, after the bill had been dismissed at the
hearing, referring it to the Master to inquire
and report the amount which the plaintiff was
liable to pay for mesne rates, so as to enable
the defendant to obtain an order on the plain-
tiff to pay the sum due; and in default of
payment to put the recognizance in suit.—
Callaghan v. és. 41. E.R. 441. (R.)

7. A bill for a chief rent is sustainable in

possession, and after her arrival in port, the | this Court when the acts of the party liable to
owner’s agent, who was also agent for the | pay it have occasioned all the difficulty in the
In Law, §e.

way of ptf. proceeding at law.—Archbishop of
Dublin v. Lord Trimleston, 2 Dr. & War. 535.
(C.)

1. When a Court of Equity has jurisdiction
on any part of a case, and a covenant also
forms part of the case upon which the parties
might proceed at law, the Court will, to avoid
circuity of action, give relief by way of
damages.—Martyn v. Blake, 5 I. &. R. 72; 3 Dr.
& War. 125; 2 Con. & L. 65. (C.)

2. When persons are entitled to a fund in
Court upon the contingency of a female of
advanced age (then childless) having child-
ren, the Court will order it to be paid out to
them, on their entering into security by
recognizance to refund the money, if child-
ren should be born.—Jn re Commissioners of
Wide Streets, 71. EH. R. 484. (R.)

3. The Master in Ch. has jurisdiction under
the 117th G. O. to transfer the carriage of the
decree; and when an application which he
can grant is made to the Court, it will be re-
fused.—Forbes v. Pearson, 8 I. E. R. 35. (R.)

4. The Court will not restrain a ship from
sailing, on the application of the part owner of
the smaller ascertained share. The proper
application is, to the Court of Admiralty to
compel the larger part owner to give security.
This Court interferes only where the shares
are unascertained; and the application to re-
strain is too late when the ship is on the point
of sailing with emigrants.—Halloran v. Donal,
91.E. R. 217. (R.)

5. The Court has jurisdiction, in a case
coming on on the report, to decide questions
not referred to the Master.— Brabazon v. Lord
Lucan, 9. E. R. 441. (R.)

6. A. seized of an estate for life, remainder
in tail to B., in several denominations of
lands, entered into a voluntary agreement
with B. to resettle the lands; and that A.
should be made tenant for life in one portion,
X., as of his former estate, remainder in tail
to B. The settlement, supposed to embody
this agreement, having been prepared, X. was
thereby by mistake limited to B. for life only,
remainder to his heirs male in strict settle-
ment. The mistake being discovered after its
execution, and after the death of A., but
before the birth of any issue of B., a bill was
filed by B. to have the mistake corrected.
Held, that this Court could not bind the rights
of the unborn issue so as to divest them of
any legal estates thereunder, or amend or
correct the deed itself, but declare only the
rights of the parties according to their original
intention and contract.—Richards v. Futz Gerald,
91.E.R. 486. (E.E.)

7. The Queenv. O'Donnell, 6 I. E. R. 643,
approved of. The Court will take no distinc-
tion between the Crown suing in its own right
and as a royal trustee.

A surety entering into a recognizance is
entitled to all the legal remedies against the

[JURISDICTION.]

 

When exercised. 477

principal which the parties in the cause would
have; and therefore the Court will not, by the
exercise of an equitable jurisdiction, prevent —
the issuing of a recognizance to try those
legal rights.—O’ Connor v. Malone, 4 I. Jur.
205. (C.)

8. The decree in a suit by B., a puisne mort-
gagee, directed that he should redeem A.,
a prior mortgagee, who had the title-deeds,
within six months, or, in default, that the bill
should be dismissed, with costs, against A. ;
that the defendants who ought to do so should
pay B. the sum found due to her, and the sum
directed to be paid by her to A., provided she
should have paid same; in default thereof, a
sale to pay B. and the other reported creditors
in their priority, and the sum which she should
pay to A. A. wasnot paid off. After the six
months had elapsed, and the suit stood dis-
missed with costs as against him, he pre-
sented a petition for a sale under the I. E.
Act. Held, that as A. had possession of the
title-deeds, and as the Court had no jurisdic-
tion to order him to lodge the deeds, no sale
could be had under the decree; and therefore
there was no pending suit within the 67th
section of the Act.

That the Court had authority to stay B.’s
suit.

Form of decree, and practice in Ireland, in a
ae by a puisne creditor for redemption and
sale.

Form of order on petition of a first incum-
brance under the Act.—£z parte Hutton, 11 I.
E.R. 160. (R.)

9. Lands were conveyed by marriage settle-
ment for 999 years, upon trust, during so
many years of the term as A. should live,
to pay the rents to her, or as she should ap-
point; and, subject to a charge of £10,000, to
pay H. for so many years as he should live
after the decease of A., an annuity of £1000,
and to pay the residue of the rents as A.
should by deed or will appoint. As to the
residue of the term after the decease of A.
and H., it was limited in trust that if there
should be younger children of the marriage,
the trustees should, by sale or mortgage of
that residue, and by the rents and profits
thereof in the meantime, and until such sale,
raise £15,000 for the portions of such younger
children, to be paid to sons at twenty-one,
and to daughters at twenty-one or marriage ;
and should, out of the rents in the meantime,
and until the portions became payable, raise
such yearly sums for the maintenance and
education of the younger children as A.
should deem meet, not exceeding the interest
of the respective portions at the rate of £5
per cent.; provided, that if any child died
before his portion became payable, it should
be divided among the survivors. A. died,
and a bill having been filed to raise the prin-
cipal and interest of the £15,000—AHeld, that
the Court had not power, under the settle-
ment, to direct a sale of the term in pos-
session during the life of H.—[Affirmed, 12 I.
EeR. 298. (C.)]

That the Court could not sell so many years

’
478 In Law, §e.

of the term as should be unexpired at the
death of H., as the security of the prior
charges would thereby be impaired. That
interest was payable on the £15,000 from the
death of A., and during the life of H— Lloyd
vy. Massy, 11 I. E. R. 429. (R.)—[Reversed,
121. E.R. 298. (C.)]

[After H.’s death, A.’s daughter (an ap-
pointee), and her husband, instituted a suit to
raise the portion, with interest from the date
of their marriage, when it vested absolutely.—
Held, that they were entitled to interest from
that date.—Lloyd v. Massy, 10 I. C. R. 240; 5
I. Jur. N. S. 119. (C.A.)—[Reversed, 10 H.
Lds. Cas. 248.]

1. When one co-tenant receives more than
his share of the rents of a property, his co-
tenant can compel an account and payment, by
a suit in Equity—Montgomery v. Swan, 9 I. C.
R. 181; 41. Jur. N. 8. 213. (C.)

2. A., being about to leave this country, en-
dorsed a promissory note, not yet due, to B.,
and directed B. to recover the sum thereby
secured, and to hold the same until A. should
write for it; but if A. died before the amount
was recovered, then to hold the amount in
trust for M. It was subsequently arranged
between A. and B.. that B. should retain, out
of the sum secured by the note, the amount of
a debt due from A. to B. A. died before the
amount of the note was paid to B. Held,
that no irrevocable trust was created in
favour of M. .

That <A.’s personal representative was
entitled to recover at Law, but not in
Equity, from B., the amount recovered by B.
on foot of the note, subject to a deduction for
the debt due by A. to B.

Principles relating to the creation by parol
of trusts of personalty—Maguire v. Dodd, 9 I.
C. R. 452; Dr. Rep. temp. Napier, 604. (C.)

3. When a lessee, bound by covenant not
to commit waste, has committed acts of waste
for which damages merely nominal would be
given, the Court of Ch. will not entertain a suit
against him, founded on those acts of waste,
when it appears that he does not contem-
plate committing any further waste, nor assert
aright to commit it. No change in this re-
spect has been introduced by the Ch. Amend-
ment Act, 1858.

A tenant, by replying to a letter charging
him with the commission of waste, and re-
quiring him to make compensation for it,
“that he is prepared to defend any action
which may be brought against him, and to
show that, so far from having committed
injury, he has materially improved the pre-
mises demised to him,” does not assert aright
to commit the waste complained of.—Doran
vy. Carroll, 11 I. C. R. 379. (C.)

 

VIL. 2. When the Court will not exercise such
Jurisdiction.

4. Tenants under the Court took, at their

own expense, a reference upon a_ subject

which was in controversy between them and

[JURISDICTION.]

 

When exercised.

the receiver. During the proceedings there-
under, it appeared that the Master would re-
port in the tenants’ favour. To prevent the
report being made up, the parties in the
cause, by consent, discharged the receiver.
The Court ordered ptf. and deft. to pay the
tenants all their costs of coming into Court,
and of the reference, &c. By consent, made
a rule of Court, the tenants agreed to waive
those costs, upon the terms that the Mas-
ter, notwithstanding the receiver’s discharge,
should have liberty to continue the reference;
and that the question of costs should abide
the coming in of the report. Before those
proceedings could be renewed, the suit abated
by ptf.’s death. The parties refused to revive.
Upon an application that the person entitled
under ptf.’s will to his interest in the cause,
a valuable chattel real, the subject of the
suit, and the deft., or either of them, should
pay the tenants the costs formerly ordered,
and those since incurred — Held, that the
Court had not jurisdiction to make any order
in the case.—Hutchins v. H., 3 J. E. RB. 217.
R.)

5. If there be no general jurisdiction by
which this Court can bind the contingent and
reversionary rights of the wife, are its rules
and practice, by which it allows her to waive
her equity, applicable to a case like the pre-
sent? It appears to me that, both on reason
and on authority, we should pervert that
practice were we to apply or extend it to any
subject but that which is well known as the
wife’s equity. Her right to her choses in
action, and her reversionary equitable right
in personal chattels which are not reduced
into, and do not vest in possession during the
coverture, vest in her by law, without her
consent; and the same law which gives her
the property disables her from disposing of
it.—Bor v. Jackson, 61. E.R. 181. (R.)

6. A suit in Equity cannot be sustained
after an agreement to refer to arbitration
(naming the arbitrators, and containing a co-
venant not to sue, and power to examine wit-
nesses, and to make the submission a rule of
Court), while the arbitration might be pro-
ceeded with.

Halfhide v. Fenning, 2 Bro. C. C., and 2
Dick. approved of, and the cases in which
it was questioned considered.

By such a deed between A. and B., A. was
to pay B. money in four months, which he
also secured by confessing judgment. A.
did not pay it; B. had him arrested. The
deed provided for the attendance of the par-
ties before the arbitrators, and their examina-
tion. Held, that the imprisonment of A.,
being the consequence of his own breach of
contract, gave him no better equity.

Compensation was to be awarded to A. out
of X. for any inequality in a partition of Y.
X., by an event contemplated at the time,
became insufficient. Held, that A. could not
be relieved on that ground.

The reference provided for appointing two
arbitrators by A. and B., who were before
proceeding with the reference to appoint a
In Law, §e., when

third; and that any two arbitrators “for the
time being,” should from time to time make
awards, provided the “last” award should
be made before July 1843, or such other time
as any two arbitrators “for the time being”
should appoint’; and that any two “for the
time being ” should have power to extend the
time for making the “last” award; and that
whether the time had previously expired or
not, a Master of Q. B. was “as soon as con-
veniently might be” after the reference, to
appoint an umpire, who was to act if no two
of the arbitrators should agree ; if A.’s or B.’s
arbitrator should be unwilling, &c., to act, the
third arbitrator “for the time being,” if there
be such, and if not, the umpire “for the time
being,” was to appoint a proper person to be
arbitrator in his stead, The arbitration ex-
pired in July, no award having been made
under it. A.’s arbitrator declined to act;
neither a third arbitrator nor an umpire had
been appointed. Some time after the Master of
Q. B., being applied to by B., appointed an um-
pire, who nominated an arbitrator for A., who,
in conjunction with B.’s arbitrator, nominated
a third and extended the time. Held, that
the time for the reference was duly extended.
—Dimsdale v. Robertson, 7 1. HE. R.536; 2 Jon.
& 1.58. (C.)

T. A sum was lodged in bank in the names
of trustees, in trust to manage it during the
minorities of A. and B., in such a manner as
the trustees should think fit for their benefit ;
and to pay the principal in equal shares on
their respectively attaining the age of twenty-
one. A. and B. attained twenty-one. One
of the trustees being out of the jurisdiction,
and having declined to act, a petition was
presented that the other trustee might transfer
the fund to A. and B. There was no evi-
dence of the trust, save the statement in the
petition and verifying affidavit. Held, that
the Court had no jurisdiction to order the
transfer of the fund.—ZIn re Dunbar, 8 I. E. R.
71; 2 Jon. & L. 120. (C.)

2. Plaintiff, in a suit in the Ex., discon-
tinued it before decree, without an order pro-
viding for payment of the costs incurred in it ;
and came in under the decree in a suit in this
Court. Held, this Court has no power in this
suit to give the costs in the Ex. suit.—Finlay
v. Heeran, 71. E. R. 485. (R.)

8. A lessee for years, having leased for his
own term, reserving a profit rent, the deed
containing acovenant to pay rent, and a clause
of distress for non-payment, filed a bill for a
receiver for the arrears of the rent. Held,
that this Court will not entertain such a suit
on the mere ground that, by reason of the
plaintiff having no reversion, his legal reme-
dies are rendered more difficult to be enforced
than they would otherwise have been.—Cremen
v. Hawkes, 8 I. E. BR. 153. (R.)—[Affirmed :
aid, 503. (C.)]

4, A Court of Equity will not entertain the
question of irregularity in proceedings at Law.
Nugent v. Waters, 11. Jur. 35. (R.)

[JURISDICTION.]

 

479

not exercised.

5. A debtor who had been arrested under
an execution on a judgment obtained on bond
and warrant, presented a petition for relief in
the Insolvent Court; and, without obtaining
his discharge, filed a bill in Chancery in his
own name, and without making the provisional
assignee a party, praying an account of the
amount due on foot of the judgment, and
seeking to get credit for a sum which he
alleged he had paid on account. Held, that
this Court would not sustain w case of this
kind when a plain remedy existed at law,
either by writ of audita querela, or by motion
to the Court in which the judgment was ob-
tained. That the insolvent, having parted
with allhis estate and effects, and they having
vested in the provisional assignee, the insol-
vent was not competent to sustain this suit.
The insolvent having parted with all his estate,
which became vested in the provisional as-
signee, was not competent to sustain the suit.
Crotty v. C.,2 1. Jur. 161. (C.)

6. Decrees were manifestly erroneous, and
prejudicial to the rights of a party who was,
during all the proceedings, imbecile ; the Court
will set aside the erroneous decrees and pro-
ceedings, upon a re-hearing, the decrees not
having been enrolled, although the first decree
was pronounced over twenty years, and the
second eighteen years, before the petition of
re-hearing was presented.

Under the circumstances of the case, and
the matter being between the Court and the
imbecile person, the Court made an order,
without a commission de lun. ing., of reference
as to his state of mind, and the proper main-
tenance to be allowed him.—Knoz y. Watters,
10 I. E. R. 353. (C.)

7. A petition for the sale of lands had been
presented in the I. E. Court, but no order had
been made thereon. Without the consent of
that Court, a petition under the Court of Ch.
Reg. Act 1850, was subsequently presented in
this Court on foot of a mortgage of the same
lands, praying a foreclosure, sale, and account,
and that in the meantime a receiver should be
appointed. The latter petition charged that
the former had been presented by the mort-
gagor, in order that he might continue in
receipt of the rents until a sale took place,
and that in consequence of the arrear of busi-
ness in the I. E. Court it was not probable
that an order for a sale would be made for a
long time. Although at the Bar the mortga-
gees offered to waive all relief under their
petition except the appointment of a receiver,
this Court refused to make any order upon
their petition, and compelled them to pay to
the respondent (the mortgagor) the costs of
bringing him before the Court.—Murphy y.
Sealy, 1 I. C. R. 228; 3 I. Jur. 162. (C.)

8. Semble—The Court has not jurisdiction,
in opposition to the wish of the inheritor, to
discharge solvent tenants, by means of an
ejectment for non-payment of rent, from their
covenants to pay rent.—Hutchins vy. H., 1 I.
C.R. 146; 31. Jur. 232. (C.)
480 In Law, Se., when

1. A receiver may be appointed or extended
under the Sheriffs Act, though an order for a
sale has been made by thel. E. Court.—Corban
v. Mountcashell, 1 I. C. R. 234. (R.)

2. When tenants hold under leases of a date
prior to the appointment of a receiver in a
foreclosure suit over the lands which they
hold, the Court has not jurisdiction to remit
arrears, or to grant a prospective abatement
of the rents which the leases bind the tenants
to pay, unless the owner of the lands, the
plaintiff, and the other parties interested in
the rents, consent to such remission or abate-
ment. Otherwise in case of the estate of an
infant or lunatic under the control of the
Court.—Hamilton v. Nagle, 1 I. C. R. 513; 31.
Jur. 366. (C.)

3. A., seized of houses ‘and lands for lives
renewable for ever, and of no other real estate,
devised all his freehold messuages, lands, te-
nements, and hereditaments, whatsoever and
wheresoever, upon trusts—viz., to permit his
daughter during her life to receive an annuity
of £100, to be issuing and payable out of all
and every other his freehold estate or estates
situate (here the houses and lands were men-
tioned), to her separate use (and without
power to alien or mortgage it); and after her
decease the annuity to stand to the heirs of
her body lawfully issuing, in such shares as
she should by will appoint; in default of ap-
pointment, to her children share and share
alike. <A. directed that £50 per annum should
be applied in the maintenance of his daughter
until she attained twenty-one or married; and
that upon either of those events the trustees
were to assign the annuity of £100, and all
interest and dividends due thereon, and all
securities wherein the same should be placed
out or invested, to her for her own-sole use
absolutely for ever, with the usual powers of
distress and entry upon the devised premises,
and every and any part thereof. After a be-
quest of plate and household furniture to his
daughter, and of a small annuity to another
person, the will contained this clanse—“ And
in further trust that in case my said daughter
shall happen to die before she attain twenty-
oneand unmarried, I give, devise, and bequeath
said annuity of £100, and all and every other
my freehold estates wheresoever, as aforesaid,
unto my brother E., for and during the term
of his natural life, and from his decease unto
and to the use of his right heirs for ever, in
such manner as by his last will he should ap-
point.” A.bequeathed all his personal estate,
subject to his debts, to E. A.’s daughter sur-
vived him, and attained age. Upona petition
presented under the Court of Ch. (/r.) Reg.
Act, s. 11, on behalf of the children and devi-
sees of E., who died almost immediately after
A., the Court was of opinion that, upon the
context of the will, the words of contingency,
“in case my daughter shall happen to die
before she attain twenty-one, or marry,” must
be confined to the annuity of £100; and that
E. and his children took estates, to the exclu-
sion of A.’s daughter, in the freehold property
of A., immediately upon his death; but the

(JURISDICTION. ]

 

not exercised.

case was sent for the opinion of a Court of
Law.—Campbell v. C., 11. C. R. 503. (C.)

4. The general rule with respect to cause
petitions under the Court of Ch. Reg. Act is,
that examinations of witnesses by interroga-
tories, or viva voce, will not be permitted
before the hearing. Very special grounds
must be shown upon motion in order to induce
the Court to vary this rule.

A motion, for liberty to examine witnesses
upon interrogatories, before the hearing of a
cause petition, and that a commission should
issue for that purpose, was grounded upon the
affidavit of the petitioner’s solicitor, stating
that A. and other persons (not named), when
applied to, declined to volunteer evidence by
making affidavits in the case, but that deponent
was persuaded that they would attend for
examination upon interrogatories, and also
stating that some of the witnesses (but not
naming them) were resident in England, and
that a commission would therefore be requisite,
and that the deponent was advised that their
evidence was material and necessary to the
petitioner’s.case, was refused with costs.—
Kirwan v. Lindsay, 2 1. C. R. 23. (C.)

5. A., having effected a policy of insurance,
by deed of the 1st Nov. 1827, assigned it to B.,
in trust for his wife and children. B. after-
wards assigned the policy to C., for value, by
a deed falsely reciting that A., by deed of the
Ist Noy. 1827, had assigned the policy to B.
for her own benefit. C. died, having bequeath-
ed the policy to D., who assigned it to E., a
solicitor, who acted in that transaction for B.,
by deed of the 4th Feb. 1843, in which D.
covenanted that he had full power, and lawful
and absolute authority to execute the assign-
ment. The life insured died. E. having
received the amount of the policy, a bill was
filed against him by the children of A., and he
was obliged to compromise the suit by pay-
ment of money. D. died, and a claim having
been made by E.’s executor against his assets,
on foot of the covenant for title, a cause
petition was filed to administer his estate. It
stated that E. was D.’s solicitor; that it was

his duty to have limited the covenant to the

acts of D.; and that he was entitled to no
greater benefit than if he had only imposed
the proper and usual covenant on D.; but
prayed no relief as to that statement, and did
not make E.’s executrix « respondent. The
usual order having been made by the Lord
Chancellor, under the Ch. Reg. Act, s. 15,
and E.’s executrix having filed a charge on
foot of the covenant, which the Master
disallowed, on the ground that E. was D.’s
attorney, and ought not to have permitted him
to enter into such a covenant — Held, on
appeal, that the claim under the covenant
being a legal claim, the Master had no juris-
diction to disallow it on that ground without
a cross petition.

Semble—Though E. had constructive notice
of the trusts of the deed of the 1st Nov. 1827,
such notice could not qualify or control the
covenant for title.

D. having directed that any claim on foot
Testamentary.

of any covenant should be paid out of a parti-
cular legacy, the legatees should be before the
Court.—£Ex parte Collins, 21. C. R. 218. (R.)

1. Semble—Though the statute, under which
proceedings are taken, does not empower the
Court to direct an issue, or an inquiry touching
the facts, yet the Court, to satisfy itself, will
exercise, by either of those methods, its in-
herent jurisdiction —Lahiffe v. Gregory, 4 I.
Jur. 97. (C.)

2. Persons in whom the shares of co-parce-
ners had vested granted a lease for lives
renewable for ever; their interest vested in
the petitioner and respondent, subject to the
lease. The petitioner having filed his petition
for a partition of the lands included in the
renewable lease—Held, that such a suit was
not sustainable-— Cantwell v. Hassard, 7 1. C.
R. 370. (C.)\—[Affd. ; ibid, 371; 31.Jur.N. 8.
377. (C.A.)]

8. When money has been paid, or a con-
veyance executed, in ignorance of matter of
law, this Court has power to grant relief;
which will not, however, be given when it is
against good conscience that the party who
made the mistake should be freed from the
consequences of his error.—Cooper v. Phibbs,
171. C. R. 73; 101. Jur. N. 8. 239.—[Revd.:
L. R. 2 H. L. 149. (C.)]

 

VIII. Jurispiction toucwinc WILLS AND
Matters TESTAMENTARY.

[Probate jurisdiction now regulated by 20
& 21 Vic., c. 79, and 22 & 23 Vic., c. 31. By
sec. 5 of first Act, jurisdiction of Metropolitan
and Diocesan Courts abolished. ]

4, When gifts are made to a class of per-
sons, and circumstances connected with the
individuals are in dispute, it is contrary to
the practice of the Court to decide the points
of law, previously to a reference to, and report
by the Master, as to the state of the class.—
Kimberly v. Tew, 2 Con. & L. 366; 4 Dr. & War.
139; 5 I. E. R. 389. (C.)

5. On a bill filed by the executors of a judg-
ment creditor, it appeared, on taking the
account, that the plaintiff’s testator had been
overpaid. Held, that the Court had jurisdic-
tion in this suit to compel the plaintiffs to
refund the sum which they had been overpaid.
—Graves v. Wright, 1 Con. & L. 267; 2 Dr. &
War. 77. (C.)

6. The Court of Ch. cannot determine the
validity of a will of real or personal estate. It
can only remove impediments to an ejectment
at law to try the validity of a devise of real
estate, and cannot direct an issue devisavit
vel non, unless the defendant consents.—Ross-
borough v. Boyse, 3 1. C. R. 540. (R.); ibid, 629.
(C.)—[Orders and decree reversed: 6 H. Lds.
Cas. 2.]

7, When the heir-at-law successfully resists
probate of a will of real estate, the Court of
Probate has no jurisdiction to charge the real
estate with the costs of the litigation. — Newton

[JURISDICTION. ]

 

Matrimonial. 481

v. N13 I. C. R,245; 7 1. Jur. N. 8. 129.
(C.A.)

8. Practice of Probate Court same as of the
Perogative Court, save when altered.— Goslin
v. G., 71. Jur. N.S. 306. (P.)

9. As to admission of evidence with refer-
ence to construction of will.—See Kennedy v.
Kelly, 71. Jur. N.S. 826. (P.)

 

IX. JURISDICTION IN MATTERS MATRIMONIAL,
AND BETWEEN HusBaNnp AND WIPE.

10. In 1809, by marriage settlement, £1000
was vested in trustees to pay the interest to
the husband and wife for their lives, and the
survivor’s life; then upon trust for the children,
in such shares as the husband should appoint;
in default of appointment, share and share
alike. There were three daughters. In 1824,
the husband died without having appointed
the fund, and leaving his wife and three
daughters surviving. A suit respecting their
property having been instituted, that £1000
was paid into Court, invested in government
stock, and transferred to the credit of the cause.
One daughter afterwards married without
settling her share of the fund. The three
daughters, after attaining age, consented that
the £1000 should be paid to their mother.
The consent was signed by the mother, the
three daughters, and the married daughter’s
husband. Upon a bill filed to give the consent
effect—Held, that the Court had not jurisdic-
tion to take the married daughter’s consent
to dispose of her interest in the remainder
expectant on her mother’s death, and that the
bill could not be supported. — Box v. B., 6 I.
E, R. 174; Dr. Rep. temp. Sugden, 42. (C.)

ll. The wife’s equity to a settlement out of
funds in Court to which the husband is
entitled in her right, does not arise from the
power of the Court to enforce it by the mere
circumstance of having control over the pro-
perty; and therefore, though there are no
conflieting claims, the Court is bound to
notice the wife’s equity, in directing payment
of the funds, in whatever way they may have
been brought into Court.—Jn re Woodward, 8
I. E.R. 50. (R.)

 

X. JurispicTion iv CriminaL Marrers.

12. An application to take an answer off
the file, to prosecute for perjury, is not one
of course. The applicant must lay before the
Court grounds which will justify it in exer-
cising its discretion in favour of the applicant,
Daly v. Toole, 2 Dr. & Wal.599. (C.)\—[Affd. :
Napier v. N., 2 Dr. & Wal. 604. (C.)]

13. An application to take an affidavit off
the file, to prosecute for perjury, will not be
granted ex. deb. just. Before allowing it the
Court will use circumspection.—Davis v. Nolan,
71. E.R. 559. (R.)

14. An application to take an affidavit off
the file, to prosecute for perjury, though it be
not ex debito justitic, approaches very closely to

61
482 Over
it. The Court will not scrutinise the grounds
or merits of the prosecution, or the truth of
the allegations on either side, but will give
every facility to the application, provided it
be satisfied that it is not made for vindictive
or unjust purposes.—Madden v. Woods, 8 I. E.
R. 48. (R.)

 

XI. Jurisprcrion 1n Marrers infra dignitatem.

1. A suit instituted to recover a very small
amount should be dismissed, as being beneath
the dignity of the Court.—Chaine v. Dungan-
non, 61. Jur. 174. (R.)

 

XII. Jurispiction over Inrants.
See Inrant,

(The following are the Statutes giving juris-
diction as to Infants: — 58 G. 3, c. 81; 11 G.
4&1W.4, 0.65; 5&6 W.4,¢. 17:2 &38
Vic. c. 54; 3&4 Vic. ¢.90; 4&5 Vic, c. 56;
5&6 Pic. c. 28; 9 & 10 Vie, c. 24; 14 & 15
Vic., v. 100; 16 & 17 Vic., c.70; 18 & 19 Vic,
¢. 18; 18 & 19 Vie, ¢. 43.)

1. Generally.
2. Between Parent and Child.

 

XII. 1. General Jurisdiction over Infants.

2. A ward of Court, entitled in her own
right to large real and personal property,
married under age, without consent. That
marriage was annulled. Upon her attaining
age, the husband petitioned for leave to make
proposals for a settlement of her property, and
to have a legal marriage celebrated. He
undertook to execute such a settlement as the
Court should direct. The Master approved
of a draft settlement, whereby all her pro-
perty was limited to her for life for her sepa-
rate use; then to her children. The amount
of the property being then in litigation and
unascertained, the Court declined to direct
the execution of the settlement. A second
marriage was legally celebrated: there was
issue. The wife eloped. Held, that, during
her life, the children were not entitled to
maintenance out of her separate estate.

That the settlement, though unexecuted,
could not be varied, because the Court had
by different orders acted upon it.—Hodgens v.
H., 3 CL & F., 323; Li. & G. temp. Plun. 533.
[Afig.: Re Walker, Li. & G. temp. Sug. 299. (C.)]

3. On petition in a minor matter—Held,
that the Court had not jurisdiction to enforce
an agreement whereby the minor’s solicitor
bound himself to give a lien on the costs
which should become due to him as such soli-
citor, since the jurisdiction in a minor matter
exists solely to protect the minor’s person and
property; and, so far as concerned the minor,
it was indifferent how the money received by
his solicitor for costs was afterwards applied.
Ex p. Leech, 51. E.R.871. (C.)

4. A minor, ordered to execute the convey-
ance to the purchaser, refused to do so, at the
instigation of his mother. The Court granted
an attachment against the minor for refusing

(JURISDICTION. ]

 

» Lnfants.

to execute the deed, and against her mother
for interfering to prevent her executing it.—
M‘Cartney vy. Simonton, 5 1. E. R. 694. (E.E.}

5. In a foreclosure suit, a day having been
given by the decree to the infant defendant,
the heir of the mortgagor, to show cause
against it—Held, that the Court had jurisdic-
tion to direct an immediate conveyance by
the infant, under 1 W. 4, c. 47, s. 11—Flood v.
Sutton, Flan. & K.179; 31. E. R. 340. (R.)

6. When a minor defendant cannot write,
the Court will direct that he be assisted in
executing the conveyance under the 1 W.4,c.
47, by a Commissioner for taking Affidavits.—
Henry v. Rankin, 41. E. R. 681. (E.E.)

7. When a male ward of Court marries
under age, and the marriage is recognised by
the Court as a valid one, the Court has no
power ,to compel him to settle his estate in
such a way as to exclude the wife from all
benefit in it.—Jn re Murray, 2 Con. & L. 136 ;
3 Dr. & War. 183. (C.)

8. The infant tenant in tail of lands decreed
to be sold for an equitable charge, is a trustee
under the 8th and 18th sections of the 1 W. 4,
c. 60.— Peyton v. Al'Dermott, 6 I. E. R. 220. (R.)

9. When lands are decreed to be sold in a
mortgage suit, the infant heir-at-law of the
mortgagor is not a trustee within the 8th or
18th sections of the 11 G. 4 and 1 W. 4, c. 60.

Semble—The Court has jurisdiction, under
11 G.4 and 1 IV. 4, ¢. 47, s.11, to make an
order directing such infant heir to execute
the conveyance.

He is not within the 28 G. 3, ¢.35. Nor is
he a necessary party to the conveyance to the
purchaser.—(roddard v. Macaulay, 6 I. E. R.
221, (RB)

10. Minors may be made wards of Court on
petition, without changing the guardians, when
there are testamentary guardians, and although
no bill has been filed, nor any misconduct im-
puted to the testamentary guardians.—Jn re
AM‘ Cullochs, 6 I. E. R. 393. (C.)

11. The Court will make an order under the
1 W.4, ¢. 47, s. 11, that the infant shall exe-
cute the deed of conveyance to the purchaser.
Clinton v. Bernard, 6 I. E. R. 355. (C.)

12. The present income of w minor’s pro-
perty was insufficient to keep down the annual
interest of the incumbrances. It appearing,
however, that the property was ‘sufticient to
discharge all the incumbrances, the Court
gave the minor maintenance out of it.

Pursuant to an order of reference in a minor
matter to report the nature and amount of the
minovr’s fortunes, the Master reported accord-
ing to his construction of a will. The Court
refused to make a declaration of the rights of
parties claiming under the will, or to confirm
the report.—Jn re Corkers Minors, 3 Jon. &
L. 877. (C.)
Over Infants.

1. A., seized of an estate for life, remainder
in tail to B., in several lands, entered into a
voluntary agreement with B. to resettle the
lands; and that A. should be made tenant for
life in one portion, X., with remainder in tail
to B. In the settlement, X. was, by mistake,
limited to B. for life only, remainder to his
heirs male in strict settlement. The mistake
being discovered after the death of A., and
before the birth of any issue of B., on a bill
filed by B.—Held, that this Court could not
bind the rights of the unborn issue so as to
divest them of any legal estates thereunder,
or amend or correct the deed itself; but de-
clare only the rights of the parties according
to their original intention and contract.—
Richards v. Fitzgerald, 9 I. E. R. 486. (H.E.)

2. When tenants hold under leases of a date
prior to the appointment of a receiver in a
foreclosure suit over the lands which they
hold, the Court has not jurisdiction to remit
arrears, or to grant a prospective abatement
of the rents which the leases bind the tenants
to pay, unless the owner of the lands, the
plaintiff, and the other parties interested in
the rents, consent to such remission or abate-
ment. Otherwise in the case of the estate of
an infant or lunatic under the control of the
Court.—Hamilton v. Nagle, 1 I. C. R. 513; 3
I. Jur. 366. (C.)

 

XII. 2. Between Parent and Child.

8. Upon petition of the minors’ paternal
aunt, it appeared that their mother was dead;
that their father, still alive, was of irregular
habits, and had married his servant lately;
and that the minors were entitled to real
estate in their mother’s right. Held, that it
should be referred to the Master to approve
of a receiver over their estate, and to inquire
and report respecting proper maintenance,
and whether it would be proper to appoint
guardians of their persons and fortunes.—Jn
re Cormicks, 21. E. R. 264. (C.)

 

XIII. Jurispiction 1x Lunacy Marrers.

[See 15 C.1,¢.4; 41 G.3, v.90; 6 G4.
53; 1 W.4,v. 65. As to their property, 1 W.
4, ¢. 65.

Under Acts for granting and surrendering
leases, &c.— See 1 W. 4, v. 65; 5&6 W.4, ¢.
17; 1&2 Vic, c. 62.

Under the Trustee Acts, 13 & 14 Vic., c. 60,
and 15& 16 Vic., c.55—see ss. 3, 4, 5,&c. Under
the Renewable Leasehold Conversion Act, 12
& 13 Vic., c. 105, ss. 17, 22, &e.

Under the Ecclesiastical Leasing Acts, 3 &
4 W. 4, c. 37, 8. 159, &e.; 6&7 W.4, c.2; 6
&7W.4, v.99, ss. 1, 8, 35.

Under the Lands Clauses Consolidation Act,
8&9 Vic, c. 18; 14 & 15 Vic. v. 70.]

4, Observations touching paying for the
management of a lunatic’s estate, and the im-
propriety of appointing his devisee to be sole

committee of his person. i
The English Privy Council’s decision, revers-

[JURISDICTION.]

 

In Lunacy. 483

ing the Lord Chancellor’s orders (Ll. & G.
temp. Plunket, 503), observed upon.—Zn re the
Earl of Lanesborough, Beat. Rep. 688. (C.)

5. Devise of real estate upon trust to sell
and pay debts; and, subject thereto, to A.’s
use for life, remainder to his first and other
sons in tail. In a suit in the Court of Ex.
a decree to sell was made, and a sale was had.
Pending the suit A. died. His eldest son was
a lunatic. Held, that as the Court of Ex. had
not any jurisdiction in lunacy matters, the
Court of Ch. would not adopt that decree and
sale, and make an order under the 1 W. 4,
c. 65, s. 28, for the lunatic’s committee to exe-
cute the deed barring the entail of the luna-
(a3 estate.—In re Skerrett, 2 Dr. & War. 585.

6. An order made in a lunacy matter may
be carried into effect after the lunatic’s death.
After death of a lunatic, tenant for life, an
order made in his life, affecting the rights of
the remainderman, who has entered since the
death, cannot be enforced. The tenant for
life, having a leasing power, agreed to grant a
lease, and afterwards became a lunatic. By
an order in the lunacy matter, the contract
for the lease was ordered to be executed.
The lunatic died. Upon petition to carry the
order into effect—Held, that it must be re-
fused, the Court’s jurisdiction being ended.—
In ve Earl of Kingston, 2 1. E. R. 169. (C.)

7. A lunatic, found so after being commit-
ted to prison for a breach of the peace, was
transferred, by virtue of the Lord Lieutenant’s
warrant, to a lunatic asylum, pursuant to the
1&2 Vic. c. 27. The term of imprisonment
expired. Held, that the Ld. Ch. had juris-
diction to order him to be placed in such an
asylum as the committee, with a Master’s ap-
probation, should appoint.—Jn re M‘ Dermott,
3 Dr. & War. 480; 2 Con. & L. 298. (C.)

8. A certificate of lunacy will not be re-
ceived, if given by a physician who keeps a
private lunatic asylum.—Anon., Dr. Rep. temp.
Sugden, 286. (C.)

9. The Lord Chancellor has not jurisdic-
tion in lunacy, upon the application of a
creditor of the heir-at-law and next-of-kin
of the lunatic, to order an allowance made
to him (the heir-at-law) out of the lunatic’s
estate, for the support and maintenance of
the lunatic, to be applied in payment of the
debts of the heir-at-law.—Ex parte Linehan;
in re Hennessy, 1 Jon. & L. 29. (C.)

10. An application by a person connected
with an alleged lunatic, to have him removed
from the custody of persons with whom he
has resided for a number of years, refused ;
there being no allegation that the lunatic
was improperly treated, or had evinced any
desire’ to be removed, though well able to
express his wishes.

The Lord Ch. of Ireland will not issue a
commission de lun. ing. when the personal
attendance of the supposed lunatic is sought
484

to be dispensed with, he being resident in
England, although his property is situated in
Ireland.—£x parte Boyd, 21. Jur. 114. (C.)

1. The Chancellor of Ireland will not issue
a commission de lun. ing. when the personal
attendance of the supposed lunatic is sought
to be dispensed with, he residing in England,
though his property is situated in Ireland.—Jn
re G—,, a lunatic, 21. Jur. 188. (C.)

2. The Court will not order payment of a
physician’s fees out of the lunatic’s estates,
the attendance having been before the com-
mission of lunacy, at the instigation of the
lunatic’s brother, whose medical attendant
the doctor was, and the application being
made after a long time.— O’Connell, in re
Spread a lunatic, 2 I. Jur. 304. (C.)

3. When tenants hold under leases of a
date anterior to the appointment in a fore-
_ Closure suit of a receiver over the lands which
they hold, the Court has not jurisdiction to
remit arrears, or to grant a prospective abate-
ment of the rents which the leases bind the
tenants to pay, unless the owner of the lands,
the plaintiff, and the other parties interested
in the rents, consent to such remission or
abatement. Otherwise, in case of the estate
of an infant or lunatic under the Court’s con-
trol.— Hamilton y. Nagle, 1 I. C. R. 518; 381.
Jur. 366. (C.)

4. The Court will not direct an issue on an
allegation by a defendant or respondent that
a person, when he executed a deed, was in-
sane, without any evidence in support of it;
as the presumption is in favour of sanity,
more especially when there is prima fucie evi-
dence of sanity, e. g., acting on the deed for a
number of years.

In 1822 a reversion and rent were assigned.
The rent was paid to the assignee of the
reversion until 1846. A cause petition was
filed by the assignee of the reversion, to ad-
minister the lessee’s assets. By the discharge
it was alleged that the assignor was insane
when he made the assignment. Held, that
the respondent could not require an issue,
unless evidence was given in support of the
allegation.—Long v. £4 I. C. R. 106; 7.1.
Jur. 81. (R.)

5. A person, found to be a lunatic, had
died after the reference to ascertain the
nature and amount of his property, but be-
fore the Master’s report had been made up—
Held, that the Lord Chancellor has jurisdic-
tion to direct that the reference be proceeded
with, notwithstanding the death of the luna-
tic.—Jn re Singleton, 8 I. C. R. 263. (C.)

6. C., having been found a lunatic by a
jury on a trial had before the Commissioners
of Lunacy, the finding was traversed, and a
day fixed for the new trial. The petitioner
declining to incur the expense of opposing
the traverse, the Court was moved to direct
the committee of C.’s fortune to appear by
counsel at the expense of the estate, on the

 

[JURISDICTION IN LUNACY.—LACHES.]

trial of the traverse. The petitioner’s soli-
citors expressed a wish not to interfere fur-
ther, unless their costs were secured. The
committee had not visited this country since
his appointment, and was in Italy. The tra-
verse was to be tried five days after this
motion.

The Court removed the committee, ap-
pointed one of the Masters committee in his
stead, and directed the general solicitor for
minors and lunatics to act under the Mas-
ter’s directions in reference to the traverse,
and appearing thereon.—Jn re Crosbie, 5 I.
Jur. N. 8. 257. (C.)

7. Semble—When a lunatic owns a trading
establishment, yielding large annual profits,
of which the true value cannot be realised by
a sale, the Court will allow it to be carried
on by a manager for the lunatic’s benefit.—
In re Rowles, 81. Jur. N. S. 63. (C.)

 

XIV. Respecting Frrenpty Socreries.

 

XV. JURISDICTION UNDER THE CouRT OF
Cu. Ur.) Ree. Act.
[See Practice, Chancery (/r.) Regulation
Act, 1850.]

 

JUST DEMANDS.

— Offer to Comply with, See PrEapixc,
Bru, 2. ¢.

 

KEEPING DOWN INCUMBRANCES.
See Estate, VIII, 2. d.

 

LACHES.

See LenctH or Time—VENDOR AND Pour-
CHASER, III.

{In renewal of Lease—See Luasn. As a
bar to Action under the Statute—See Limi-
tation oF Action. In Prosecuting a Suit—
See Brru, Dismissa or.]

I. How constiturep.

II. GENERAL EFFECT OF—WHEN RELIEVED
AGANST,

1. Its Effect, generally.
2. Relief against.

III. Wuo 1s Bounp By.
IV. Wuo MAY TAKE ADVANTAGE OF.

 

I. Wuat constitutes Lacues.

8. A rent, charged upon and payable out of
several denominations of land, was to cease
on payment of asum of money. There was
evidence to show that it had not been paid by,
or demanded from the owners of one of those
denominations for upwards of a century.
There was not any evidence to show that it had
not been paid regularly out of the other deno-
minations. Held, that the Court would not
Constitution of.

presume either that the redemption money
had been paid, or that that portion of the
lands had been released.— Warren v. Bateman,
FL & K. 448. (R.)

1. A tenant for life, remainder to his issue
as tenants in common in fee, conveyed the
lands, as if he owned the fee, to a purchaser
in 1794, and died in 1820. In 18387, the gran-
tor’s children filed a bill against the purchaser.
Held, that there was not upon their part such
acquiescence as enabled the Court, exercising
its discretion under the 3 & 4 W. 4, c. 27, s.
27, to refuse them relief — Thompsonv. Simpson,
1 Dr. & War. 459. (C.)

2. Effect of length of time as a bar, as be-
tween executor de son tort, who afterwards
obtains administration, and the next-of-kin.

Perhaps, in such a case, the proper answer
of a Court of Equity would be, that it would
not. give such assistance; that as it would not
interfere to help them, who by their neglect
had suffered the party in possession to act on
the assumption of ownership after a long lapse
of time, so it would, on the other hand, refuse
to be active in relieving those in possession,
from the cloud still resting upon a title origi-
nally wrongful, but that they must rest content
to keep it as it was, without receiving any
assistance from the Court; and I can very
easily imagine cases where the Court would
refuse to interfere for either party.—Scott v.
Knox, 41. E. R. 408, 409. (E.E.)

3. Real estate having been applied, fora
century and a half, upon trusts specified by a
will, which named a trustee, the Court assumed
the will to have created an express trust in
the heir-at-law.—In re Gore’s Charities, 2 Con.
&L. 411. (C.)

4. When parties have acquiesced for a long
period, such as twenty-three years, under an
agreement, they will not be permitted to im-
peach it on grounds of alleged illegality.—
Westby v. W., 1 Con. & L. 5387. 2 Dr. & War.
502; 41. E.R. 585. (C.)

5. A., filling the situations of guardian, agent,
receiver, and tenant, procured from his ward,
immediately upon his coming of age, a lease
of the entire of his property, for lives renew-
able for ever, upon terms disadvantageous to
the ward; who, eleven years afterwards, filed
a bill to set it aside. Held, that the lapse of
time was not so great as to disentitle him to
equitable relief.

The plaintiff's acquiescence was held not to
bar his right, because he was the debtor of the
defendant, and, therefore, completely under
his control—Mulhallen v. Marum, 3. Dr. &
War. 317. (C.)

6. A suit was instituted in 1823, to recover
against the estate of a debtor who died in
1805, in which there was a decree, and which
was actively followed up until 1841; but the
bill did not pray to have the assets marshalled,
and was not framed so as to have relief against
the real estate. A bill was filed in 1843,

[LACHES.]

 

Its Effect. 485

framed so as to have relief against the real
estate, praying to have the assets marshalled
and the benefit of the former proceedings.
The same person was both real and personal
representative. Held, that notwithstanding
the former suit, the relief against the real
estate was barred by time.—Busby v. Seymour,
71. E.R. 483; 1 Jon. & L. 527. (C.)

7. The doctrine of laches does not apply to
a bill for specific performance of an agree-
ment for a lease which is in fact executed ;
both parties being from the date of the con-
tract in possession of the benefits thereby
given them.—Clarke v. Moore, 7 I. E. R. 515;
1 Jon. & L. 723. (C.)

8. D., seized of one undivided fourth of
fee-simple and renewable leasehold estates,
demised it to L. for 999 years, subject to a
rent. §. acquired the entire of the estates;
and, up to 1828, paid rent to C., who had
succeeded to D.’s interest, and who died in
1828, devising her interest to A., whose title
S. denied, and obtained a renewal of a lease
in 1835. He paid no rent from 1828 to 1857,
when A., who had previously been ignorant
of his precise title, filed a petition to have the
renewal declared a trust for him. Held, that
he was not barred by lapse of time or the
Statute of Limitations.

If any new rights had meantime been cre-
ated, or the delay had prejudiced third parties,
A. would have been barred by daches or acqui-
escence. [Campbell, L.C.]—Archbold v. Scully,
71. Jur. N.S. 1 (H. L.); 9 H. Lds. Cas. 360:

9. Alegacy, payable to the legatee at twenty-
one, was charged primarily on the testator’s
personalty ; and on his realty, failing suffi-
cient personal assets. At his death the per-
sonal assets were sufficient. Owing to a
devastavit by the executors, the assets became
at some unascertained time inadequate. The
legatee (the petitioner) attained twenty-one
in 1849. The petition was filed on the 26th
Jan. 1863. Held, that the mere non-enforce-
ment of payment from the executor was not
laches to estop the legatee.

That the real estate of the testator is liable
to the payment of the legacy.

Semble—There might have been laches, if
the executors had appropriated a fund for the
payment of the legacy, and that fund had
been permitted to remain in the executors’
hands.—In re Massy’s Estate, 14 1. C. R. 355;
81. Jur. N. 8, 874. (L.E.C.)

 

IJ. Generat Errect or Lacuszs:
RELIEVED AGAINST.

1. General Effect.
2. Relief.

WHEN

 

Il. 1. General Effect of Laches.

10. On the 7th Nov. 1825, the landlord served
his tenant with a notice requiring informa-
tion touching the deaths of the c. g. vies; and
stating that the tenant, if he did not give ‘it,
would be considered to have waived his right
486 General

toa renewal. On the 28th Nov. the tenant
gave the information. The plaintiff, an in-
cumbrancer on the estate; on the 16th Dec.
filed a billto renew, without having previously
tendered the renewal fines. On the 10th Jan.
1826, the landlord served on the tenant an-
other notice requiring him to return, within
one fortnight, approved, the draft renewal
therewith sent; and stating that, upon pay-
ment of the rent and renewal fines, the land-
lord would execute it. The notice required
further information, and stated that it and
the former notice were served under the
Tenantry Act. No answer was returned. No
tender of the fines was made until the 10th
Feb. 1830. The amount of the fines was not
paid into Court. Held, that the right to re-
newal had been lost by the tenant’s gross
laches.— Watkins v. Lloyd, H. & J. 832. (E.E.)

1. When an equity of redemption is put in
settlement, though the tenant for life is the
party bound to pay the interest upon the
mortgage, yet the mere /aches of the mortgagee
to demand such interest from him will not
prejudice his claim against those in remain-
der.— Wrizxon v. Vize, 41. E. R. 463; 2 Dr. &
War. 192; 3 Dr. & War. 104; 1 Con. & L.
298; 2 Con. & L. 138. (C.)

2. Sale in 1808. This suit was instituted
in 1822, and in 1823 the principal defendant
answered the bill. No further proceedings in
the cause were had until 1839, when the suit
was revived.— Held, that as the circumstances
were such that the purchase could not be
sustained, the plaintiff was entitled to relief,
notwithstanding the lapse of time. But costs
were refused to both parties, in consequence
of the great delay; and an account of the
rent was directed only froin the filing of the
bill of revivor and supplement in 1839.—
Thornhill v. Glover, 3 Dr.& War. 196. (C.)

8. Although a suit was pending unheard
for thirty years, and dormant during the
greater part of the time, the Court gave fur-
ther time to prosecute it, notwithstanding the
81st G. O., it appearing by the defendant’s
answer that the only question in the cause
was one of law as to the effect of admitted
documents; and that, by reason of transac-
tions between the plaintiff and defendant,
the plaintiff’s right was, independently of the
lis pendens, in full force; that she had been
for many years in extreme poverty, and that
the defendant’s conduct had not been con-
scientious.

Semble—If, pending a cause, there be, by
culpable delay in the prosecution of it, an
accumulation of arrears of interest exceeding
the limit prescribed by law, the Court may, if
it think fit, disallow such portion of it as was
occasioned by the delay. — Mills v. Mf, 61. E.
R. 106. (R.)

4, When once a suit has been instituted to
raise money bearing interest, the Court has
not jurisdiction to withhold from ptf. the
interest which accrued after the filing of the

[LACHES.]

 

Effect of.

bill, on the ground of laches, however gross,
in conducting it— Reilly v. Fitzgerald, 6 I. E.
R. 335; Dr. Rep. temp. Sug. 122. (C.)

5. The time for filing a bill of review is re-
gulated by analogy to the time limited by 6
G.1, c. 6, for bringing a writ of error—i.e.,
twenty years after the judgment, and five
years after the disability of the plaintiff in
error, if any, has been removed. After the
case of Smith v. Clay (Amb. 645; 3 Bro. C.C.
639, n.), before Lord Camden, it cannot be
disputed that the same limit regulates the
time of filing a bill of review, and that this
Court follows by analogy the legal rule. No
person can expect favour in a Court of Equity
who comes upon a stale demand, on a case
which has been so long acquiesced in.—Kelly
v. Lennon, 1 Jon. & L. 305, 333; 71. E. RB. 98.

(C.)

6. The plaintiff in an administration suit
obtained an order for a receiver in 1822. It
was not made absolute or acted upon until
1834. The Court directed an inquiry to ascer-
tain by whose default the receiver was not
appointed ; and that if it should appear that
it was by the plaintiff's default that the re-
ceiver was not appointed, and if he might,
through such appointment, have kept down
the interest on his own demand, he should not
now be entitled to so much of the interest on
his debt as would have been paid by the re-
ceiver, had he been appointed as early as he
might have been.—Newby v. Drew, 7 I. E. R.
349; 1 Jon. & L. 445. (C.)

7. Interest given from the filing of the ori-
ginal bill only, and costs only from the filing
of the bill of revivor then at hearing, because
of ptf.’s laches—Purcell vy. Blennerhassett, 9 I.
E. R. 103; 3 Jon. & L. 24. (C.)

8. Specific performance of an agreement for
a lease decreed after a refusal by the tenant
to execute any lease, and a delay of six
months, though the agreement was to execute
a lease on a given day; the landlord having
at first insisted on an untenable term, and
never prepared or tendered a lease to the
tenant according to the usual practice.—
Burke v. Smyth, 9 I. BE. R. 135; 3 Jon. & L.
193. (C.) ‘

9. Delay, however great, in the progress of
a suit, cannot deprive ptf. of rights which
existed at its commencement. — Poster v.
M' Mahon, 11 I. E. R. 287. (C.)

10. An owner in fee, having granted an an-
nuity for a term of years determinable with
the life of the grantee—Hedd, that a bill lies
in Equity after the death of the grantee, to
raise the arrears by a sale of the lands, though
there be no trust term to secure the annuity.
Laches, in enforcing an annuity charged on
lands in settlement, whereby a remainderman
is charged with arrears payable by a prior
tenant for life, is no defence to a suit by the
annuitant.—Harrison v. Mason, 12 I. E. R.
245. (C.)
General

1. At ameeting of S.’s creditors, it appeared
doubtful whether he wasatrader. A solicitor,
who was a creditor and concerned for another,
but not of sufficient amount to support a com-
mission, insisted that S. was a trader, and gua-
ranteed B., another creditor, against costs, if
he would allow him to use his name as petition-
ing creditor. Held, that though such an
arrangement was improper, and against the
policy of the Bankrupt Laws, the Court should
not, three years after, supersede the commis-
sion, on the petition of S., he having used its
protection, and failed in impeaching it on
other grounds; or on the petition of a credi-
tor, it appearing that bankruptcy was inevi-
table, and the commission had been bona fide
worked.

Special order made as to the sale of mort-
gaged property, the subject of a suit in which
the mortgage was impeached, the mortgagee
desiring to bid at the sale.—Jn re Semple, 12
I.E. BR. 338. (C.)—[See 3 Jon. & L. 488. (C.)]

2. When a Dill in the Court of Ch. was
directed to stand dismissed with costs, unless
a sum was paid within a limited time, and a
petition was presented by the plaintiff before
the limited time had expired; but the appli-
cation to dismiss the petition, under the 12 &
13 Vic. c. 77, s. 18, was not made till after the
limited time had expired, and after several
proceedings by the petitioner had been taken
after that period, of all which the applicants
were fully cognizant—Held, that this laches
disentitled them to take advantage of this
section.

Quere—If there had been no laches, would
the Court dismiss, under the 18th section, a
petition presented before the time of payment
had arrived?—Jn re Ashe, 21. Jur. 186. (1.E.C.)

3. By a deed of 1827, R. covenanted with
his son D. that the specified estate which
should, after the decease of P., descend to or
vest in R. should be conveyed tu uses. P. was
found a lunatic; but in 1820 had made a will,
under which, if valid, G. took an estate tail.
In 1830, the lunatic being dead. R. in viola-
tion of his covenant conveyed the estate to
H. In 1832, an ejectment was brought by
those claiming under the will of the lunatic, at
the trial of which R. and H. disputed the will.
The conveyance of 1830 was set aside by a
decree of the House of Lords, by which D.
and his children, were declared entitled, as
against R. and H. to the benefit of the deed
of 1827; and it was referred to the Master
to settle a conveyance. The Master, in 1848,
reported that D. had not laid before him any
conveyance. In 1841, H. being in possession,
compromised with G. Two deeds were exe-
cuted ; by one, G. released all right and title
to the estate to H., in consideration of a con-
veyance of a portion of the estate which was
made by the other deed. A supplemental
bill having been filed by D. and his children,
to carry the decree of the House of Lords into
execution against H. and G., who was not a
party to the original suit—Held, that though
the plaintiffs had not availed themselves of
their right of having a conveyance under the

[LACHES. ]

 

Effect of. 487

decree, they had not forfeited their right to
the benefit of it, as H. had by the deeds of
1841 disabled himself from conveying the legal
estate.

That the first deed of 1841, being a release,
and not a conveyance, was an acknowledgment
of the estate by descent in H., and operated
to confirm that estate; and therefore that the
plaintiffs were entitled to have the Lords
decree enforced against G. (as claiming under
H.), although he was not a party to the
original suit.

The uses to which the estate was to be con-
veyed by the deed of 1827, were to D., remain-
der to the first and every other son of his first
marriage, successively, and the heirs male of
each such son lawfully issuing; remainder to
the right heirs of D., who, on the settlement
executed on his second marriage, conveyed
his supposed reversion to the use of the child-
ren of the second marriage. D. and his child-
ren of both marriages were plaintiffs in the
original and supplemental suits.

Quare—Whether the fee vested in the sons
of the first marriage, and whether the children
of the second marriage took any estate; since
the H. of L. had declared that the children of
the second marriage were entitled to the
benefit of the deed of 1827? The Court Held,
that there was no misjoinder of plaintiffs in
the supplemental suit.—Persse v. P.,3 I. C. RB.
196; 4 I. Jur. 369. (C.)— (Affirmed: 5 H.
Lds. Cas. 682.]

4, A., tenant of a lease for lives renewable,
mortgaged his entire interest; but remained
in possession. The lessor served A. with a
notice under the Tenantry Act, but omitted
to serve it upon the mortgagee. A., for a con-
siderable period, omitted to renew the lease.
He then filed a petition for u renewal. The
petition was dismissed because of A.’s laches.
Held, that the mortgagee could not subse-
quently, because service of the notice on him
had been omitted, sustain a petition to renew.
— Galbraith v. Cooper, 6 I. C. R. 518; 31. Jur.
N.5.69. (C.)-[Affirmed: 8 H. Lds. Cas. 315.]

5. In 1812, lands held for lives renewable
were conveyed by A. to the use of himself for
life, remainder to B. and his heirs. <A. died ;
and in 1813, B., who did not appear to have
ever gone into possession, by marriage articles
agreed to settle the lands on himself for life,
remainder to his wife for life, remainder to
the petitioner. In 1814, a renewal was granted
to the heir-at-law of A. In 1827, B. died, and
in 1851 B.’s wife died, when the petitioner’s
right under the articles accrued. A., and those
claiming under him, remained in uninterrupt-
ed possession from 1814 to 1862. Held, that
the petitioner’s right under the articles was
barred by the Statute of Limitations.

That though the petition did not pray for a
specific execution of the articles, as the claim
was founded on them, it was barred by Jaches,
independently of the Statute of Limitations.
—Rossiter v. R.141.C.R. 247. (B.)

 

II. 2. Relief against Laches.
6. In all cases of direct trust, the rule is
488 Relief against.

settled, that length of time does not bar.—
Scott v. Knoa, 4 1. E.R. 408. (E.E.)

1. If there has been wilful neglect, though
no’demand is made, the Court will not give
relief under the Irish Tenantry Act.—Butler v.
Lord Portarlington, 4 I. E. R.1; 1 Dr. & War.
20; 1Con.&L.1. (C.)

2. Costs of a suit when there had been great
delay, and proceedings taken which were not
followed up.—Newby v. Drew, 7 I. E. R. 349 ;
1 Jon. & L. 445. (C.)

8. A., seized in fee, by registered deed con-
veyed lands upon trust to sell and pay debts
and incumbrances; the residue to himself.
Afterwards, in 1782, A., for value, by regis-
tered deed demised the lands to B. (who did
not appear to have had notice of the trust
deed) for lives renewable for ever, subject to
a then existing lease. The rent reserved
equalled that reserved by the sub-lease. In
1789, C. bought the lands under a decree in
an administration suit instituted before 1782
by a judgment creditor of a former owner
against A. and his trustee, who had conveyed
the lands to C. It was not shown that A. had
been served with subpcena in that suit before
the date of the lease of 1782, and did not
appear therein till afterwards. N. when he
purchased, had not notice of that lease. The
price was applied in paying incumbrances
created before 1782. The last life in the lease
of 1782 died in 1835. The sub-lease deter-
mined in 1889. Shortly afterwards B.’s heir-
at-law, for the first time, claimed a renewal of
the lease of 1782. Held, that the laches of the
parties deriving under the lease in claiming a
renewal, or obtaining a recognition of their
title, barred their suit.— Drew y. Earl of Nor-
bury, 9 I. E. R. 171, 524; 3Jon. & L. 267. (C.)

4, A bill filed in 1850, to set aside for fraud
a limitation under a deed of 1818, by which
the reversion in lands was limited to the de-
fendant for life, stated that the defendant
went to America in 1822, to avoid service of
subpena, and there concealed herself, which
prevented the grantor from taking proceedings
to set aside the deed; and that the grantor
devised the said lands to the use of the plain-
tiff for life, “‘ with remainder as therein ;” and
also devised the residue of his estate to the
plaintiff absolutely. He/d, on demurrer, that
lapse of time was not a bar to the plaintiff;
and that she might as devisee maintain a suit to
set aside the deed without making the heir-at-
law of the grantor a party; but, that the per-
sons entitled to the estate after the death of
plaintiff were necessary parties.—. Johnston v.
Howison, 13 J. BE. R. 463. (R.)

Il. Wuo ts nounp By Lacurs.

5. In 1799, D., tenant for life of Irish estates,
conveyed them to trustees for 99 years, to pay
him £10,000 a year, and to apply the surplus
in paying his debts. In 1802 a creditor filed
a bill in England against D. and the trustees,

[LACHES.]

 

Who bound by.

to carry those trusts into execution. The
trustees were decreed to account, and a re-
ceiver was appointed; but D., who was in
Ireland, out of the jurisdiction, continued to
receive the rents. He came to England in
1807, when a supplemental bill was filed against
him; and an injunction, restraining him from
receiving the rents, was granted, and the de-
cree in the original cause pronounced as
against him, and the injunction and receiver
continued by the decree. Until 1836 no pro-
ceedings to make the decree effectual were
taken. D. continued in possession till 1819,
when he granted annuities chargeable on his
own annuity. In 1828 the creditors, claiming
under the original deed, filed a bill in Ireland
to obtain the benefit of the English decree;
and in 1835 obtained a decree for payment,
and an account on the footing of the original
decree. Soon afterwards the assignees of the
derivative annuities filed a bill to enforce
their claim. They made the plaintiffs in the
other suits defendants. Their answer claimed
alien on the £10,000 a-year, to make good the
surplus of the rents and charges which D. had
received in contravention of the trust deed.
They filed a supplemental bill to establish
that claim. Held, that they, by daches, had
forfeited whatever equity they had to have
the £10,000 so applied, which equity would
not, apart from the laches, have extended later
than 1819, so as to prejudice the rights of
those who then purchased the original annuity
to the'extent of their derivative annuities.
—Houlditch v. Wallace, 5 Cl. & F. 629: 1 Dr. &
Wal. 490. (H.L.)—[Affg. Wallace v. Marquis
of Donegal, 1 Dr. & Wal. 461. (C.)}

6. After a decree to account, either party
may force on thé suit; therefore one cannot
object laches to the other.—Higgins v. Shaw,
2 Dr. & War. 356; 1 Con. & L. 400. (C.)

 

7, The mere laches of a mortgagor to enforce
payment of the interest from the tenant for
life of the equity of redemption will not pre-
judice his right to raise it out of the inherit-
ance.—Wrixon v. Vize, 5 I. E. R. 173; 2 Dr.
& War. 192; 1 Con. & L. 298. (C.)

8. A will gave three trustees, and their sur-
vivors or survivor, power, during the minority
of a tenant for life, to lease “ by indenture,
for any term not exceeding three lives, or for
any number of years not exceeding 31 years
determinable upon three lives, or for any num-
ber of years not exceeding 31 years.” In 1831,
A. proposed, in writing, to the acting trustee
and agent, B., to take premises at a rent, fora
lease “ of three lives, or 31 years;” but did not
name the lives. B. suffered A. to enter into
possession, and kept A.’s proposal among the
papers relating to the estate; but did not, in
writing, accept it. The rent was paid regu-
larly, and A. was never called upon to name
the lives. He expended large sums on the
premises; and his representative continued in
possession until 1859, when a notice to quit
was served. <A petition was filed for specific
performance of the proposal by execution of a
lease for three lives existing in 1813. Held,
[LACHES._LANDLORD AND TENANT.]

that the proposal was not a sufficient agree-
ment within the Statute of Frauds,

That the acceptance of it by one trustee
would have been void under the power.

That, assuming that acquiescence made the
proposal binding on the tenant for life, the
tenant in tail, by reason of the laches of the
tenant in not naming lives upon the decease
of the former, was not bound.

That, assuming the proposal to be binding,
the proof of the lessor’s knowledge of the
lessee’s faith in his title being insufficient,
the doctrine of Lord Kensington vy. Phillips
( Dow, 61) did not apply ; and that, since up-
wards of thirteen years had elapsed since the
expiration of the term of 31 years, the tenant
was barred by lapse of time.—Daiton v. Barry,
51. Jur. N. 8. 271. (C.)

1. G. was a joint and several simple con-
tract creditor of H. and W. A suit was in-
stituted to administer the real and personal
estate of H. and W., in which suit G. proved
his demand. In Jan. 1857, a report in this
suit found: that, the parties interested so de-
siring, the Master had not taken any account
of the personal estate of H.; and he inserted
G.’s claim only in the schedule of the debts
of W.

In Feb. 1857, the cause was heard; the re-
port confirmed; and a decree made accord-
ingly. In Jan. 1862, G. filed a petition, in the
nature of a bill of review, to vary this decree.

Held, that the Court of Appeal had juris-
diction to entertain this petition; that G.,
not being a party to the original suit, but
having merely come in to prove his debt, was
not bound by the consent of the parties in-
terested; and that he had not lost the right
to vary this decree by his delay.— Walsh v. W.,
131. C. BR. 496. (C.A.)

 

LAND.
— Charge on. See Esrate, VIII, 2.
— Directed, §c., to be purchased, or to be sold.
See Estat, VIII, 3, 4.

 

LAND-TAX.
See Sratutes, II, 29.

 

LANDED ESTATES ACT AND COURT.
See Practice, Lanpep Estates Court.

 

LANDLORD AND TENANT.

[See 9 Anne (Ir.), c. 8; 4 G. 1, c. 5, re-
pealed, except sec. 1; 8 G. 1, c. 2, repealed,
except ss. 8, 9, and 10; 3G. 2, c. 4, but ss. 1,
2, 8, and 4 repealed; 15 G. 2, c. 8, except sec.
9 repealed ; 25 G. 2, v. 18, except ss. 1, 2, and
3 repealed; 7 G. 4, c. 29; 4& 5 W.4, c. 22, as
to Apportionment, except ss. 2 & 3 repealed ;
Emblements Act, 14 & 15 Vic., c. 25, sec. 1,
repealed; 23 & 24 Vic., cc. 153 & 154.]

 

489

See CovenANI—HJECTMENT—LEASE—PLEAD-
inc, Parties, 19—Trrtz, V — Re-
NEWAL or Lzass, see Lease, VIII—
Resrectinc AssiGNEES OF a Lease,
AnD Unper-Lessuns, see Leasn, V.

I. Tuerr cenrrat & RecrprocaL Riguts,
Duties, anp LiaBiitizs.
II. Lanpiorps’ anp RecEIveRs’ REMEDIES.
Til. Accounts BETWEEN LANDLORD AND
TENANT.
IV. Frxrores.
V. Tenantry Acts.

1. In general.

2. Redemption under the Ejectment Sta-
tutes— Of Demand and Notice.

3. Respecting Lands and Tenants under
the Court.

4, Renewable Leasehold Conversion Act.

VI. Rent ceneraLLy — Titaes — ATrorn-
‘ MENT—INTERPLEADER.
VII. Or tue Lanpiorp’s Titie.

I. GenzraL anp Recrvrocat Rients, Du-
TIES, AND Liapititiss or LanpLoRpDs
AND TENANTS.

2. The letting of land in con-acre is but
a mode of farming it— Close v. Brady, Jon. &
Car. 186. (E.E.)

3. When a suit is compromised before the
expiration of a lease for five years, pending
the cause, the tenant is entitled to compensa-
tion for whatever moneys he has bona fide ex-
pended for the benefit of the demised lands.—
Gurstin v. Nangle, H. & J. 542. (E.E.)

4. The Court will not interfere to restrain
waste by a sub-tenant,-at the instance of his
immediate landlord, who has obtained an in-
demnity against the head landlord’s claims.—
Keogh v. Collins, HW. & J. 805. (E.E.)

5. The lessee of see lands, held under a
lease with at. g. covenant to renew, demised
part as building ground for a like term. The
sub-lessee covenanted not to carry on certain
trades upon, or to throw dirt into the avenue
in front of those premises; and that if he,
his executors, &c., did so, he and they would
pay an increased rent as penalty. The sub-
lessee filed against his landlord a petition for
a conveyance of a perpetual estate in the
lands, pursuant to the 6 & 7 W.4,c.99. Held,
that the conveyance of the fee should contain
covenants on behalf of the sub-lessee, his
heirs and assigns, with the lessee, his heirs,
&c., similar to those in that behalf contained
in the ¢. g. lease to the sub-lessee, though
neither the conveyance of the fee, nor the
sub-lease contained such covenants.—Dockrill
v. Dolan, 3 I. BE. R. 552; Long. & T. 282.
(E.E.)

6. In a suit to redeem premises recovered in
ejectment for non-payment of rent, the ad-
mission in the bill of the rent due to the
landlord, does not entitle him to be paid the
sum lodged in Court, if the bill is dismissed.—

62
490 Their general [LANDLORD AND TENANT.]

O’ Keeffe v. Dennehy, 4 I. E. R. 323; Flan. &
K. 404. (R.)

1. A mesne landlord is entitled to monthly
fines, although, all the lives in his own lease
having expired, he is not in a condition to
grant a legal estate to his tenant.

Mode of computing septennial fines.—Jn re
Colthursts Mfinors, 4 I. E. R. 444; Fl. & K.
515. (R.)

2. Semble—A landlord is entitled to penal-
ties and fines on renewals, though he has not
the legal estate in himself—Re Colthurst, 5
I. E. R. 822; 3 Dr. & War. 35; 2 Con. & L.
35. (C.)

3. By settlement in 1786, A. was made te-
nant for life, remainder to J.’s first and other
sons in tail male; remainder to J. infee. A.
and J. were empowered to lease the settled
estate. In 1787, A. and J. demised part thereof
for three lives, and the survivor’s, to G., and co-
venanted for the quiet enjoyment of G. and her
heirs against the acts of the lessors, or of any
person claiming under them. This lease was
not warranted by the power. In 1819, by
settlement executed on the marriage of J.’s
eldest son, F., J. and F. re-settled the estate.
A present provision for F. during J.’s life
was made out of the lands. The estates were
charged with portions for J.’s younger child-
ren, and for his own benefit, and, subject
thereto, were limited in the usual course of
family settlements. J. and F. covenanted
that the lands were free from incumbrances,
“such leases of the premises as have been
heretofore really and bona fide made, only
excepted.”

J. having died, F. brought an ejectment to
recover the lands demised in 1787, and ob-
tained judgment. Those interested in that
lease filed a bill for an injunction, and to
compel F. to confirm it. They insisted that
he had, by the settlement of 1819, agreed to
ratify and confirm the lease. It was decreed
accordingly.— Gray v. Knox, 5 I. E. R, 465.
(E.E.)

4, In 1763 P. demised lands to A. and his
heirs, for three lives, of which the last died in
1835. In 1788, J., seized in fee of the rever-
sion expectant on that lease, settled it to his
own use for life, remainder (subject to a
jointure and a term for raising portions) to
his first, &c., sons in tail male; remainder
to himself in fee. J. reserved to himself
power to lease at the best rent. In 1794 J.
demised to T. (entitled to the interest in the
prior lease) and his heirs, for three lives, at
a rent greatly below the best; and cove-
nanted for the quiet enjoyment of T. and
his heirs against the acts of J. and all per-
sons claiming under him.

In 1815, on the marriage of J.’s eldest son,
C., the lands were conveyed by J. and C. to
trustees and their heirs, “subject to the
several tenants’ leases thereof now subsist-
ing,” to several uses; and J. and C. cove-
nanted that the lands were free from incum-
brances, “ the several tenants’ leases thereof ”
exvepted.

 

Rights, &e.

In 1836 J. died. C. brought an ejectment
to recover the lands demised in 1794, one c. q.
vie being still in esse, and obtained judgment.
The person interested in the lease of 1794
filed his bill for an injunction, and to compel
C. to execute to him a lease similar to that of
1794, and charged that by the settlement of
1715 C. had agreed to confirm the leases on
the estate; and that to refuse to do so, and
to throw ptf. on J.’s assets for compensation,
was inequitable, since C. had derived great
benefits from J.’s life estate.

C. denied that the parties to that settle-
ment had any intention to confirm the leases ;
denied notice of the lease of 1794; and said
that the leases, subject to which that settle-
ment was made, were those executed by J.
in pursuance of his power.

The only evidence of notice was the te-
nant’s possession. Held, that C. was bound
to confirm the lease of 1794.

That J.’s personal representative was not
a necessary party to the suit.—Stoughton v.
Crosbie, 51. E.R. 451. (E.E.)

5. A., agent over a property held by four
sisters as tenants in common, had from three
a power of attorney to make leases. When
about leaving the country, under suspicious
circumstances, A. executed, as by a power of
attorney from the four sisters, a lease of
part of the property to B., his under-agent.
There was some evidence of undervalue in
the reserved rent, and covenants were omit-
ted, which B. had suggested as proper in
other leases thereof to other tenants. Upon
a bill by the four sisters — Held, that the
lease should be set aside.—Rossiter v. Walsh, 4
Dr. & War. 485; 2 Con. & L. 562. (C.)

6. A lessor made a lease, and died, having
devised the reversion to his widow for life, or
until marriage. She granted a new lease to
the lessee for a term exceeding her interest,
at a reduced rent, and married. Held, that
the parties entitled in remainder cannot en-
force the original rent, as this Court has no
jurisdiction to set up a lease surrendered by
operation of law— Nixon v. Robinson, 7 I. E.
R. 520; 2Jon.&L. 4. (C.)

7. Specific execution of an agreement to
execute a lease at a certain rent, with an un-
derstanding that the tenant should pay the
tithe rentcharge and poor-rate, decreed by
directing the execution of a lease at a rent
equal to that agreed upon plus the tithe rent-
charge ; a lease for a longer term at that rent
having been prepared by the agent of the land-
lord, without his authority, on the tenant’s
representation, and executed by the tenant,
and the rent so reserved having been accepted
by the landlord.

Semble—Specific performance of a contract,
partly legal and, partly illegal, may, so far as
it is legally capable of being executed, be
decreed, if the illegal part be not malum in se,
and rests in understanding only.—Carolan v.
Brabazon, 91. E. R. 224; 3 Jon. & L. 200. (C.)

8. The Court has not power under the 1 W.
Their general [LANDLORD AND TENANT.]

4, c. 65, s. 14, to give the landlord the costs of
appearing on a petition under the 12th sec.,
for liberty to the guardian of an infant to
accept the renewal of a lease.—In re Leech, 9
I. E. R. 318; 3 Jon. & L. 189. (C.)

1. A lease for lives renewable for ever, of
lands, excepting mines, contained an agree-
ment that the landlord might enter, search
for, and work mines; and that it should be
lawful for him, his heirs, &c., at his election,
to hold and enjoy by separate and distinct
bounds, 200 or 300 acres of the demised lands
(mansion-house and orchards excepted) most
contiguous to the mines, if any should be
found, the rent being proportionably abated.
In an ejectment for the 300 acres, it was de-
decided, 6 I. L. R. 351, that this was a covenant
not a condition; that the landlord was entitled
to resume the entire 300 acres for the whole of
the lessee’s interest, whether the mines could
or could not be profitably worked, and although
the real object might have been to get the
land itself; the mine having been discovered
bona fide, and the working not having been
merely colourable.

Semble—He was bound to take the 300 acres
at one time, and could not resume them in
separate parcels.

Semble—He was entitled to resume them
without making. any compensation for im-
provements made by the tenant.—Croker v.
Orpen, 9 I. E. R. 563; 3 Jon. & L. 589. (C.)

2. A sub-tenant having redeemed his land-
lord’s interest by advances for head-rent, filed
a bill for the sale of that interest, and subse-
quently made further advances for the same
purpose. Held, that these several advances
were the first charge on the mesne landlord’s
interest in priority to incumbrances prior in
date ; and that the salvagor was entitled to a
sale for payment.—Locke v. Evans, 11 I. E. R.
52. (E.E.)

3. A possessory bill was filed to restrain the
defendant from cutting turf for sale, on the
allegation that he was tenant to the plaintiff
of lands adjoining the bog, with a limited per-
mission to cut turf for use in the bog, which
the plaintiff claimed as his. The affidavits
showing cause admitted the tenancy; but
proved that the defendant and his predeces-
sors had long claimed the disputed right over
the bog, the plaintiff's title to which was
vaguely stated. In 1807 an injunction had
been obtained in a similar suit, restraining the
tenant from cutting turf at all. Held, that an
injunction could not be obtained, as, if the
tenant was a mere trespasser, the suit was not
sustainable to establish a disputed right, there
being no triennial possession, and the allega-
tion of a limited permission could not be
strengthened by the order of 1807, which set
up a different claim.

On showing cause against an injunction
obtained on a possessory bill, the Court cannot
order the cause to stand over with liberty to
amend the bill by putting in issue matter not
stated in, or exactly consistent with it; such
a motion is analogous to the final hearing of
an ordinary cause.

 

Rights, 3c. 491

The rule, as to using supplemental affidavits
on such motions, considered.—Congleton v.
Mitchell, 12 I, E. R. 34. (C.)

4, In 1822 a lease of lands was made for
twenty-one years. The lands were afterwards
mortgaged, and a renewal was granted to a
mortgagee in 1829. In 1830, by deed, reciting
the lease of 1822, and the mortgage, but not
the renewal, the mortgagee conveyed the lands
and all his estate, title, interest, &c., both at
law and in equity therein, and also the mort-
gage debt and interest, to hold during the
residue of the term granted by the lease of
1822. The deed contained covenants against
acts by the mortgagee, for good title and
further assurance. Held, on exceptions to the
Master’s report of bad title, that the legal
estate under the renewal of 1829 passed by
the deed of 1830.—Reynolds v. R., 12 I. E. R.
172. (R.)

5. When a very voluminous suit against
several defendants failed on the three main
branches of the relief sought, but the plaintiff
succeeded in establishing a right to a limited
account against one defendant, which, though
comparatively unimportant, was mixed up
with the other matters of the suit, and was
bona fide sought by the bill—Held, that the
bill could not be dismissed generally.

Relief lies 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 forfeiture would not be insisted
on; but when a subsequent forfeiture was in-
curred after such dealings had ceased—Held,
that the prior transactions raised no equity.—
Flattery v. Anderdon, 121. E.R. 219. (C.)

6. A Dill lies to recover an ancient rent, the
origin of which is unknown, and the lands
charged not accurately ascertainable ; espe-
cially where the parties liable to pay it have,
by selling parts of the lands charged, and
charging others by way of indemnity to the
purchaser, and long acting on that arrange-
ment, rendered the owner’s rights more un-
certain.— Archbishop of Dublin vy. Lord Trim-
leston, 12 I. E. R. 251. (C.)

7. The receiver in a minor matter paid
rent due up to a certain period, in respect of
lands held from year to year, which had been
bequeathed to the minor. The bequest had
not been assented to by the executor. Held,
that the minor was liable tothe subsequentrent
only to the extent of the profits received out
of the lands, notwithstanding the payment of
the former rent by the receiver.—Jn re Fair a
minor, 13 I. E. R. 278. (R.)

8. To break up a rabbit-warren, unless it be
a warren by charter or prescription, is not
waste at Common Law, and the Court will
not grant an injunction to prevent it.

Quere, If the warren be demised as such ?—
Lurting v. Conn, 11. C. BR. 273; 31. Jur. 99. (R.)

9. A lease, made in 1821, for three lives or
41 years, excepted and reserved all timber
trees, or trees likely to be timber, then grow-
ing on or being, or which should thereafter grow
492 Their general [LANDLORD AND TENANT.]

or be on the demised premises, with liberty of
ingress, &c., for the lessor to cut and carry
them away. It also contained a covenant by
the lessee, to repair, preserve, &c., the pre-
mises, with all buildings, plantations, improve-
ments, timber and other trees, that then were,
or might at any time thereafter be, erected or
planted thereupon, in good and tenantable
order, repair, and condition; and at the deter-
mination of the demise to deliver up peace-

able possession of the premises, together with |

all improvements as then (1821) were or should
thereafter be made thereon, in like good te-
nantable order, repair and condition. The
lessee, in 1828, planted a Jarge quantity of
timber trees, and within a year afterwards
duly registered them pursuant to the 23 & 24
G. 3, c.39 (Ir.), having previously given notice
of his intention to his lessor, who offered no
opposition to the registration. By divers
deeds of assignment, not registered under that
statute, the lessee’s interest in the lands be-
came vested in A. A cause petition (to which
the lessee was not made a respondent), filed
in 1851, by the lessor against A., praying that
A. might be restrained by injunction from
cutting the timber trees planted by the lessee,
was dismissed, with costs, but without preju-
dice to such other proceedings as the lessor
might be advised to adopt.

Semble—That by the registry of the trees in
1829, the lessee acquired the absolute property
in them; and that by the deeds of assignment
under which A. claimed, that property, as
aoe the lessee’s estate in the lands, passed
to A.

Semble—That the decision in Herbert v.
Jameson (2 Law Rec. N. 8. 92) cannot be up-
held.—Standish v. Murphy, 2 I. C. R. 2643; 4
I. Jur. 297. (C.)

1. Tenants for lives, with a covenant for
perpetual renewal, are, by the 5 G. 3, c.17
(r.), rendered unimpeachable of waste in re-
spect of trees planted by them since the pass-
ing of that Act, whether the trees be or be not
registered, and whether the leases, under
which the tenants claim, are of a date prior
or subsequent to the passing of that Act.

Semble.—That by a special covenant, tenants
for lives renewable for ever, whose leases are
of a date subsequent to the passing of that
statute, may render themselves impeachable
of waste in respect of trees planted by them-
selves.

A lease for lives renewable for ever, made
in 1791, reserved and excepted from the de-
mise all timber trees, woods, and underwoods,
with liberty of ingress, egress and regress for
the lessor to cut and carry away the same.
Held, that he was entitled only to trees stand-
ing at the date of the lease, or to trees grow-
ing from the stocks of trees then standing.

Tenant for lives renewable for ever, though
unimpeachable of waste, will be restrained
from felling ornamental timber, or timber too
young for cutting, or from felling timber in an
unhusbandlike manner; but an intention on
the part of the tenant to commit such acts
must be shown to the Court, in order to induce
it to interfere by injunction.—Pentland v.
Somerville, 21. C. R. 289; 41. Jur. 4 and 335,
(C.)

 

Rights, se.

2. In 1813, lands were conveyed to the use
that A. and B. should have for ever a yearly
rentcharge, with a clause of distress if it
should be in arrear for twenty-one days; and
if no sufficient distress or distresses could or
might be had or found in or upon the pre-
mises for forty-one days next after the days
appointed for payment, it should and might
be lawful for A. and B., their heirs and as-
signs, to enter the premises, and to take and
seize upon the rents and profits, and to detain
and keep them, &c., for payment and satisfac-
tion of the rentcharge, and all arrears. A. and
B., their heirs and assigns, were empowered,
by sale or mortgage of the lands, or out of the
rents and profits, to raise such sum or sums as
should for ever thereafter be sufficient to pay
and discharge the rentcharge. In 1842, the
portion of the arrears due from Nov. 1834 to
Nov. 1840 was assigned to the petitioner,
who, in 1853, filed a petition to raise it out of
the lands charged. A. died, leaving B. sur-
viving.

Semble—That an ejectment could not be
sustained on the clause of re-entry, unless it
was proved that no sufficient distress could be
had on the premises to answer the arrears.

Held—that the question whether the peti-
tioner was or was not barred by the Statute of
Limitations, s. 25, depended on B.’s right to
recover in the ejectment ; and there being no
evidence of want of sufficient distress on the
premises, the Court gave liberty to bring an
ejectment.

Quare—W hether the clause of re-entry, being
conditional, and in the nature of a power of
distress, could be made available to recover
an arrear of rent, where the right to distrain
is barred by the 42nd sec. ?

Held—That the power of sale or mortgage
could not be exercised by the surviving trus-
tee to raise arrears, the recovery of which by
distress or action was barred by sec. 42.

Quere—Whether the surviving trustee could
in any case exercise the power ?.

Held—That an acknowledgment by a tenant
for life of lands charged with a rent will bind
the remainderman, so as to take the case out
of sec. 42, where the right to recover the
arrears is not barred; but such an acknow-
ledgment will not revive a demand already
barred.— Smith v. S., 5 I. C. R. 88. (R.)

3. The representatives of the lessee of a
lease for lives renewable, being entitled to a
f. f. grant under the Act, and being unable to
discover where one of the owners of the rever-
sion resided, the Master was directed, on the
part of the absent owner, to join with the other
owners in executing a f. f. grant to those re-
presentatives. The amount of compensation
for renewal fines and arrears of rent was
directed to be paid into Court to the credit of
the matter, and separate credit of the absent
owner.—Ex parte Owens, 6 I. Jur. 209. (R.)

4. Lands were let under the Court, for seven
years pending the suit. The tenant paid one
year’s rent in advance on getting possession ;
and expended money on the lands. The suit
was compromised before the end of the first
half year.
Their general [LANDLORD AND TENANT-]

Cause shown against an injunction to put
the owner into possession was allowed with
costs, and the issuing of the injunction was
stayed until the end of the year of the tenancy
created by the Court.

Practice of taking rent in advance from te-
nants under the Court, dissapproved of.—
Lalor y. Neiterville. 6 I. Jur. 261. (R.)

[N.B.—This was not a decision under the
Emblements Act (14 & 15 Vic., c. 25), though
the report, having been altered by the editor
after it left the reporter’s hands, is made to
appear as if it was.—R. W. G.]

1, A lease for a term was granted by A., a
lessee for years, to B., who, pending the cur-
rency of his term, planted timber trees, and
registered them pursuant to the provisions
of the 23 & 24 G.3,¢.39 (.). Before his
term expired, B. obtained from A., in consi-
deration of his improvements, a lease for seven
years, to commence after the expiration of the
preceding lease.

Sembie—That the additional lease could not
operate to the prejudice of the reversioner,
by extending the time within which the tenant
might remove the trees under the provisions
of the Timber Acts.

Semble—A tenant planting timber trees
must cut them down and remove them within
the last year of his term.

The reversioner is a necessary party toa
suit respecting registered timber between“a
middleman and the sub-tenant, when equities
arise out of the contracts made between the
middleman and sub-lessee.—Jebb v. Hardman,
11. Jur. N. §. 417. (C.)

2. The Board of the College of Physicians
resolved that B. should be accepted as tenant
of a farm, for thirty-one years, at a rent of
£1. 10s. an acre, as the nominee of P., a for-
mer tenant, who had, by another resolution,
been allowed to dispose of his interest. F.,
the solicitor of B., acting under a general
authority, wrote to the solicitor of the Col-
lege that, in consequence of the dangerous
illness of B., he had not finally concluded
with P., and could not take out the lease.
Heid, that the letter amounted to a waiver of
B.’s right,to the lease.

Quere—Whether, if there had been no
waiver, P. could have compelled the execu-
tion of a lease to thé representative of B.,
who was a banker, and would not have resided
on the farm?

P., after the death of B., filed a cause peti-
tion for a specific performance of the agree-
ment contained inthe resolution. The solicitor
for the College, in his affidavit, stated an
agreement, made in 1846, for a lease for
twenty-one years, at a rent of £1. 17s. Od. an
acre, with the brother of P., who had formerly
been tenant of the farm, and whose adminis-
trator and creditor P. was, of which agree-
ment P. was ignorant. P. amended his peti-
tion, and, as administrator, prayed, in the
alternative, a specific performance of that
agreement. Held, having regard to the 19th
Order of May 1857, that the misjoinder could
be set right, by amendment of the prayer, at
the hearing.

 

Rights, ge. 493

Whether the 19th G. O. of May 1857 applies
to misjoinder of causes of suit, as well as to
misjoinder of parties ?—Quere.

Held, on the authority of Lindsay v. Lynch
(2 Sch. & Lef. 1), that the petition should be
dismissed, as praying relief in the alternative
under two inconsistent agreements. But the
Court gave leave to amend the petition, by
abandoning the relief prayed by the original
petition.

The petitioner had paid the rent of £1. 10s.
an acre up to March 1856; and receipts were
given by the respondents for each gale. Held,
that the petitioner was entitled to a specific
performance of the agreement of 1846, on the
terms of paying all rent from the 25th March
1856, at the rate of £1. 17s.; without prejudice
to the respondents bringing such action as
they might be advised, for the arrears alleged
to be due up to March 1856.—Power v. College
of Physicians, 71. C. R. 104. (R.)

3. R. was tenant for life of money secured
by mortgage of property held for lives renew-
able. The c. g. t. of that mortgage filed a bill
to raise the amount due upon it. The mort-
gagor having died, his interest vested in his
heir-at-law, an infant. The Master, in the
foreclosure suit, directed a renewal to be ob-
tained, and it was arranged that the renewal
should be made to R., in trust for the parties
interested. A draft renewal was accordingly
prepared, containing the usual lessee’s cove-
nants; and a recital that it was made to R.,
merely in pursuance of the Master’s report,
and in trust for the parties. R.’s solicitor
inserted a proviso, that nothing therein should
affect the real or personal estate of R. ; the evi-
dence showing that both parties believed and
intended that the proviso should exonerate
R. from personal liability. Held, that R. was
entitled to restrain an action brought against
him upon the covenant in the lease for pay-
ment of rent.—Read v. Armstrong, 7 I. C. R.
266. (C.)—[Affirmed: ibid, 375; Dr. Rep.
temp. Napier, 55; 31. Jur. N. 8.305. (C.A.)]

4. A., entitled to a portion of lands held
for lives renewable for ever, under a lease of
1715, which had been renewed in 1787, made
in 1859 to B.a lease for lives, with a covenant
for perpetual renewal. A. afterwards assigned
his interest to C. B. granted a rentcharge,
and in 1816 devised his interest to his eldest
son, E., for life; remainder over. An eject-
ment was brought for non-payment of rent, in
1848. E. and his under-tenants were served
with the ejectment, but none of the persons
in remainder; and E. gavea consent for judg-
ment. The last life in the renewal of 1787
died in 1835. A cause petition was filed in
1856 by the person entitled to the rentcharge,
praying that the ejectment might be declared
to be invalid, and for a renewal of the lease
of 1795 against C.’s heir-at-law. Held, that
E., and those entitled in remainder after him
to the interest under the lease of 1795, were
necessary parties to the suit.

Semble—That as E., during his life, repre-
sented the entire interest in the lease of 1795,
and had given a consent for judgment, the
494 Landlord's

eviction was valid. But as the question as to
the service of the ejectment was a legal ques-
tion of difficulty, on which two Courts of Law
had differed, the Court directed an ejectment
to be brought, notwithstanding the 22nd G.
O. of 1857. Held, that if the eviction was
valid in law, the petition should be dismissed.
Phibbs v. Cooper, 71. C. R. 422. (R.)

1. The lessee, under a lease containing a
covenant against assignment, agreed to assign
his interest under it. On a petition by the
purchaser for specific performance, the re-
spondent alleged that the assent of the lessor
to the assignment could not be obtained.
Held, that a Court of Equity could not give
any relief to the purchaser.—Meara v. M., 8
I. C. R. 37. (C.)

2. A tenant under the Court, in April 1857,
sowed artificial grass on the lands which he
grazed from Oct. 1857 until May 1858, when
he began to preserve the grass for meadow.
His tenancy expired in May 1858. Held, that
he was not entitled to emblements of the
artificial grass.—Flanagan v. Seaver, 9 I. C. R.
230. (R.)

8. When a lessee, bound by covenant not
to commit waste, has committed acts of waste
for which damages merely nominal would be
given, the Court of Ch. will not entertain a
suit against him founded on those acts of
waste, when it appears that he does not con-
template committing any further waste, nor
assert a right to commit it. No change in
this respect has been introduced by the Ch.
Amendment Act, 1858.

A tenant, by replying to a letter, charging
him with the commission of waste, and requir-
ing him to make compensation for it, “that
he is prepared to defend any action which may
be brought against him ; and to show that, so
far from having committed injury, he has ma-
terially improved the premises demised to
him,” does not assert a right to commit the
waste complained of.—Doran v. Carroll, 11 I.
C. R. 879. (C.)

4, A head landlord cannot obtain costs, in-
curred in an ejectment, out of a fund in Court
standing to the credit of a cause in which his
immediate lessee is respondent, if his claims
are opposed by an unpaid incumbrancer.—
Haines v. Purcell, 111. Jur. N. 8. 250. (R.)

 

II. Lanptorps’ anp Recrrvers’ Remepies.

5. The Court, upon a motion on behalf of a
landlord, for liberty to proceed at law, not-
withstanding the appointment of a receiver,
will not enter into any question of equities
between the landlord and tenant ; but will, in
a proper case, refer it to the Master to inquire
and report whether any proceedings should be
taken in defending the ejectment, or in rela-
tion thereto.—Cramer v. Griffith, 31. E. R.
230. (R.)

6. A reference, to ascertain what is due
from an infant for penal fines for a non-

[LANDLORD AND TENANT.]

 

Remedies.

renewal, cannot be obtained on petition. A
bill must be filed—Re Colthurst, 5 I. E. R.
322; 3 Dr. & War. 35; 2 Con. & L. 35. (C.)—
{Revg. 41. E. R. 444; Fl & K.515. (R.)]

7. This Court appointed a receiver over one
moiety of lands held under a single lease.
Afterwards the head landlord, ignorant of
that appointment, commenced proceedings
against the tenants for non-payment of rent.
The receiver was willing to pay a proportionate
part of the head rent. Motion by the head
landlord for liberty to proceed with the eject-
ments, he. having learned the appointment.
Motion granted on the terms—that he would
not go beyond marking judgment without
leave, and would allow his name to be used in
enforcing the judgment against that moiety
over which the receiver had not been ap-
pointed, on being paid his rent and costs.—
Barker v. Morton, 21. Jur. 266. (H.E.)

8. A. was sued on foot of a recognizance
entered into by him as surety for a tenant of
lands, let under the Court pending a cause.
A levari facias issued against him at the in-
stance of the receiver in the cause, under
which his goods were seized. Before the sale,
the landlord of the premises in which the goods
were lying made a claim for rent, pursuant to
the 9th Anne, c. 8,s.1. Held, that the land-
lord was entitled to his rent notwithstanding
that the process had issued in the name of the
Crown.

That, according to the true construction
of that statute, a distinction must be taken
between cases in which the Crown sues for a
debt due to it proprio jure, and those in which
it acts merely as trustee for a subject; and
that in the former class of cases only are its
rights saved by sec. 8.—Tighe v. Walsh, 3
Jur. 251. (E.E.)

9. A landlord, who has obtained possession
by ejectment for non-payment of rent, is en-
titled to receive the arrears due up to the
execution of the habere, together with the costs
at law, and of the motion for liberty to pro-
ceed at law, out of a fund lodged in Court by
a surety of a sub-tenant.— Coyne v. Shearman,
4J. Jur. 88 (R)

10. This Court will entertain a suit for the
recovery of rent, when the boundaries are so
confused by the act of the tenant as to render
the legal remedy uncertain.— Yelverton v. Avon-
more, 41. Jur. 237. (C.)

11. The 20 & 21 Vie., c. 60, s. 268, does not,
before election by the assignees, vest in them
the bankrupt’s lease, so as to make them,
though in possession, liable to its covenants
and conditions. Sec. 271,regulating the bank-
rupt’s liability, recognises the assignees’ obli-
gation, and protects the landlord.

The 21 & 22Vic., c. 154, ss. 14 & 15, does not
apply.—Re Ellis, 10 I. Jur. N.S. 19. (B.)

12. When the assignees elect not to take an
interest held by a bankrupt, although he has
obtained his certificate, the Court will order
Accounts

him to give up possession to the landlord, and
thus obviate the necessity of bringing an
ejectment on the title—Re Lambert, 11 I. Jur.
N.S. 325. (B.)

 

Ill. Accounts BETWEEN LaNDLORD AND
TENANT.

1. A bill by a landlord for an account of
waste, committed by a tenant in cutting tim-
ber, lies against his executors.

The waste having been committed during
50 years of the tenant’s life, the bill was not
filed until a few years after his death. The
account was refused touching all the waste
done in the tenant’s life, but was granted with
an injunction touching waste committed by
the executors.— The Fishmongers’ Co. v. Beres-
Jord, Beat. Rep. 607. (C.)

2. Bill for specific performance of an
agreement for a lease for 21 years, and for
an account. The defendant held the lands
for one life. The agreement was executed by
the defendant’s agent; possession given under
it; and money expended in improvements ;
but the defendant swore that her agent had no
authority from her to act so. There was evi-
dence that she subsequently recognised the
agreement, and promised to execute a lease
pursuant thereto. A civil-bill ejectment was
served upon the plaintiff, and another upon
two of his under-tenants. The former was dis-
missed; but the latter, being undefended, a
decree was obtained, under which he was turned
out of possession. Three years afterwards
this bill was filed. Pending the suit, the c. g.
vie in the defendant’s lease died. Held, that
the plaintiff was entitled to an account of the
rents and profits of those lands which the
defendant had received, or, without wilful de-
fault, might have received from the day of the
execution of the civil-bill decree, up to the
day of the death of the c. g. vie—Callaghan v.
Pepper, 21. E. R. 399. (i. E.)

3. A tenant, at a bulk rent, of lands, over
part of which a receiver was appointed, having
for years made payments generally on account
of rent to the receiver, and allowed him to
allocate them partly to the credit of the cause
and partly to the person to whom the rent of
that part of the land not in the cause belonged,
and having for a long time acquiesced in that
allocation and apportionment— Held, that he
was bound by his acquiescence.—Colthurst v.
C71. E. R. 305. (E.E.)

4. Under G. O. 145, the Master has not
jurisdiction to give allowance or compensation
to a tenant for improvements. A tenant for
aterm, pending the cause, will not be allowed
for improvements made without the Court’s
sanction, on notice to all parties, though the
receiver may have misled him as to its tenure.
Wildridge v. M‘Kane, 8 I. E. R. 231. (R.)

5. A lease made in 1832 contained a cove-
nant by the tenant to pay the rent reserved,
“over and above all taxes, tithes, charges and
impositions whatsoever, quit rent and crown

[LANDLORD AND TENANT]

 

between. 495

rent only excepted.” The tenant for a number
of years paid the rent reserved, without making
any claim to deduct the tithe composition.
The lessor mortgaged the lands ; this mortgage
subsequently became vested in B., the tenant.
Held, upon a petition filed against B. for an
account, that he was entitled to deduct the
tithe composition from the rent with which
the lessor was to be credited.

The 4 G. 4, c. 99, contains an implied nega-
tive as respects any such covenant.—Usher v.
Boyd, 21. Jur. N. 8. 274. (C.)

6. A fund having been realised out of cer-
tain lands, was carried to a minor’s credit.
The lands were evicted for non-payment of
rent. Held, that the landlord was entitled to
the fund on account of arrears of rent.—
M'Kenna v. Connell, 2 1. C. R. 594. (R.)

7. M., seized and possessed of certain real,
chattel real, and personal property, including
property in N. held for lives renewable, sub-
ject to a lease for 99 years from Feb. 1762,
devised all her property to R. and H., whom
she named her executors, upon trust to pay
annuities; and, subject thereto, devised her
property to other persons. The will empow-
ered the executors to sell or dispose of any
portion of the property as they should think
fit for the advantage of the parties interested.
M. died in 1819. H. alone proved the will,
and obtained a renewal of the lands of N. in
his own name, as trustee. In 1824, one of the
persons beneficially entitled to those lands
executed a renewed lease of this at an in-
creased rent, in the preparation of which H.
acted as solicitor.

The devised property having become de-
ficient for the payment of the annuities, the
annuitants, about 1844, went into possession
and receipt of the rents and profits of all the
devised property. On the expiring of the lease
of 1762 the annuitants filed their cause petition
against the lessees under the lease of 1824,
claiming to hold discharged of it. Held, thatthe
receipt of the increased rent by the annuitants
from 1844 did not operate as a confirmation
of the lease by them; and that they were
entitled to hold discharged of it.—WMetcalf v.
Ryves, 141. C. R. 558; 8 I. Jur. N.S. 405. (C.)

8. M., tenant for lives renewable for ever of
a flax mill, erected in connection with it a
steam engine, boiler, and shafting and gearing.
The boiler could not have been removed with-
out substantial injury to the structure and
the boiler-house. The steam engine was at-
tached to the boiler by screws and nuts, and
was attached to the engine-house by various
supports, all of which were capable of being
removed without material injury to the struc-
ture of the engine-house or to the engine; the
shafting and gearing could also have been
so removed. The engine-house was con-
structed to contain a steam engine, and was
not suited for any other purpose. The steam
engine, shafting and gearing, were all fixtures,
removeable as between landlord and tenant.
M. mortgaged the flax mill, together with the
steam engine, boiler, shafting, and gearing,
496 Tenantry

and other machinery. After the mortgage,
M. remained in possession of the flax mill
and machinery, and while in possession
became bankrupt. Held, reversing the de-
cision below, that the steam engine, shafting
and gearing were not chattels in the order
and disposition of the bankrupt.

Review of the decisions respecting the right
of the assignees of a bankrupt to trade fixtures,
of which he has continued in possession, with
the true owner’s assent.—Jn re M‘Kibbin, 4 I.
C. R. 520; 7.1. Jur. 342. (C.)

 

V. Tenantry Acts, &C., AND TENURE.
[See 9 Anne (Ir.), c. 8; 11 Anne, . 3.]
1. In general.
2. Redemption under the Ejectment Acts;
Demand and Notice.
8. Respecting Lands and Tenants under
the Court,
4, Renewable Leasehold Conversion Act.

 

V. 1. Tenantry Acts, and Tenure generally.

1. On motion on the landlord’s behalf, for
liberty to proceed at law, notwithstanding the
appointment of a receiver, the Court will not
enter into any question of equities between
the landlord and tenant; but will, in a proper
case, refer it to the Master to inquire and
report whether any proceedings should be
taken to defend the ejectment, or in relation
thereto.— Cramer v. Griffith, 31. E. R. 280. (R.)

2. The landlord of A., tenant from year to
year, verbally promised to make him a lease
for 21 years. Held, that A.’s continuance in
possession was not a sufficient part perform-
ance to take the case out of the Statute of
Frauds.—Brennan v. Bolton, 2 Dr. & War.
349. (C.)

38. Specific performance of an agreement for
a lease decreed, after the tenant had refused
to execute any lease, and a delay of six
months, though the agreement was to execute
a lease on a given day, the landlord having at
first insisted on an untenable term, and hay-
ing never prepared and tendered a lease to
the tenant, according to the usual practice.—
Burke v. Smyth, 9 I. BE. R. 185; 3 Jon. & L.
193. (C.)

4. Relief lies in general against a forfeiture
of a lease during a period when the landlord
dealt with the tenant so as to lead him to sup-
pose that the forfeiture would not be insisted
on. When, however, after such dealings, a sub-
sequent forfeiture had been incurred—ZHeld,
that the prior transactions did not raise an
equity Ilattery v. Anderdon, 12 I. E.R. 219.

©.)

 

V. 2. Redemption under the Ejectment Acts :

emand and Notice.

5. A tenant, who, after an eviction by habere
for non-payment of rent, has filed a bill to re-
deem the lands, and lodged in Court a sum of
money to countervail the arrears of rent, as

[LANDLORD AND TENANT.]

 

Rights, se.

ascertained by the affidavit of the landlord,
and the costs of the ejectment, is not bound,
within forty days after answer filed, to lodge
an additional sum to countervail the arrears
of rent which the landlord, by his answer,
swears are due to him.

The decree in a redemption suit by a te-
nant, should direct an account of what the
defendant really and bona fide, without fraud
or wilful neglect, made of the lands since his
actual possession thereof, and that such sum
should be set off against the rent, and a ba-
lance struck. :

When the conduct of the landlord has been
oppressive, he will be made to pay costs of the
suit for redemption from filing of the bill.—
M‘Ineherny v. Galway, Jo. & Car. 247. (E.E.)

6. A mortgagee of lands, held under leases
for lives renewable for ever, became bank-
rupt. The head landlord brought ejectment
for non-payment of rent. The assignees re-
deemed the premises within the statutable
period allowed to mortgagees; and afterwards
entered into possession by their agent. An
annuitant, claiming under a deed of settle-
ment anterior to the mortgage, filed a bill.
Held, that the assignees were chargeable as
mortgagees in possession; and were bound to
appropriate the rents which they had, or with-
out wilful default might have received, in
discharging the redemption money before
paying their own mortgage.—Sloane v. Mahon,
1 Dr. & Wal. 189. (C.)

7. A redemption bill was filed by one whose
interests had been evicted under the Hject-
ment Statutes for non-payment of rent. Held,
that the statutes were out of the question,
because ptf. had -established a waiver by
deft.; and that, therefore, it was not es-
sential that the bill should be filed, or the
amount of rent and costs lodged within the
six months, as provided by statute.— Butler y.
Burke, 1 Dr. & Wal. 380. (C.)

8. A landlord brought an ejectment for
non-payment of rent, against his tenant and a
mortgagee of the tenant’s interest, and, hav-
ing recovered judgment, executed his habere.
The tenant did not redeem the lands within
six months after the execution of the habere;
but after the expiration of that period, and
within the nine months, allowed the mortgagee
to redeem. The latter informed the landlord
that he was ready to redeem the premises,
and to pay him the rent and costs. The
landlord dispensed with a tender of the rent
and costs being made to him; but, in order
to prevent a redemption of the premises by
the mortgagee, agreed with him, within the
period of the nine months, to pay him the
sum due to him on foot of the mortgage, and
take an assignment thereof, and to release
him from the arrears of the rent to the pay-
ment of which he was legally liable. That
agreement was carried into execution by a
deed of assignment bearing date within the
period of the nine months, although actually
executed after their expiration. The land-
lord subsequently sued the tenant for the
Redemption,

arrears of the rent, and for the mortgage
debt. Held, on a bill filed by the tenant
after the expiration of the nine months, that
he was entitled to redeem the premises.—
Kent v. Roberts, 31. E. R. 279. (E.E.)

1. The litigious conduct of a tenant, in de-
fending an ejectment for non-payment of
rent, does not disentitle him to relief upon
a bill for redemption, nor to the costs of that
suit, if he be otherwise entitled to them.

A decree for redemption pronounced against
a landlord, with costs; his defence being
unfounded, and his conduct in refusing infor-
mation to enable the tenant to redeem,
inequitable and oppressive.

Semble—That if there be two leases of dif-
ferent premises, from the same landlord to
the same tenant, and the landlord evict the
tenant from both for non-payment of rent,
the tenant may redeem the one, and not the
other.

Acts of waste committed by a tenant do
not disentitle him to redeem.—Newenham v.
Mahon, 3 J. E. R. 304; Long. & T. 34. (E.E.)

2. Acts of waste committed by a tenant do
not disentitle him to redeem.

Decree for redemption without costs, the
landlord having, within the six months, re-
fused a tender of the rent and costs of the
ejectment.—Fitzgerald v. Hussey, 3 I. E. R.
319. (E.E.)

3. In what cases non-payment of rent is not
per se conduct so fraudulent on the tenant’s
part as to disentitle him to a renewal.

A notice demanding rent-fines, septennial
fines, and interest, to be paid within a limited
time; and stating that the landlord would not
renew if these payments were not made, is a
sufficient demand within the Tenantry Act,
though septennial fines were not payable, and
vet the time limited was less than reason-
able.

In accounting for delay, and considering
what is reasonable time for complying with
a landlord’s demand to renew, the Court must
regard all the circumstances of the case. In
cases of long delay it may give relief, if the
delay has arisen from ignorance or mistake,
not wilful, on the tenant’s part, or from the
landlord’s fraudulent or other improper con-
duct—M*Donnell v. Burnett, 4 1. E. R. 216.
(E.E.)

4. G., representing one moiety of the inter-
est of a lessee of a lease for lives renewable
for ever, wrote to C., agent of the person in
whom was vested the lessor’s interest, re-
quiring information touching the date of the
last renewal, and whether it was necessary
to renew again. There was not any direct evi-
dence that this letter was answered. Eighteen
months afterwards, G. wrote again, stating
that he had accidentally heard of the death
of one life, requiring to know the amount dus
for renewal fines, and naming a life. C.’s
answer referred to his answer to G.’s former
letter, and stated that he had thereby informed
G. that the c. g. v. had died, and who the sur-

(LANDLORD AND TENANT.] Demand, Se.

|might have received.

 

497

viving lives were, and continued thus:—“ You
are now aware of his (the cestut que vie’s)
death ; and when the whole fine and interest
are legally tendered to me, and a life nomi-
nated, I shall accept of them, but until then I
shall not consider myself authorised to do so.”
Held, that this constituted a demand suffi-
cient to work a forfeiture within the Te-
nantry Act, 19 & 20 G. 3, ¢. 30.

The fraud mentioned in that Act is not
moral fraud, but fraud in the contemplation
of a Court of Equity.

The demand of the renewal fine may be
made on the tenant’s agent.

The statute, being remedial, not penal,
should be construed fairly and liberally be-
tween landlord and tenaut.

The demand intended by the statute is not
a formal demand, but must be such as to give
the tenant notice that he should renew, and
what will be the consequences of omitting to
renew.

If there has been wilful neglect, the Court
will not relieve, though no demand has been
made.

If the interest in the lease is severed, the
landlord is not bound to receive part of the
renewal fine. The parties are bound to make
up the fine, and have it ready to pay to the
landlord.— Butler v. Earl of Portarlington, 4 I.
E. R. 1; 1 Dr. & War. 20; 1 Con. & L. 1. (C.)

5. In a suit to redeem premises recovered in
ejectment for non-payment of rent, the ad-
mission in the bill of the rent due to the
landlord does not entitle him to be paid the
sum lodged in Court, if the bill is dismissed.

In a redemption suit, after deft.’s answer
came in, ptf. entered the common side-bar
rule dismissing the bill, and moved for the
balance of the sum lodged in Court, after
payment thereout of deft.’s taxed costs. Held,
that the motion should be granted; and that
the landlord might, pending proceedings in
the redemption suit, have proceeded at law
for his rent.—O’ Keeffe v. Dennehy, 4 I. E. R.
323; Fl. & K. 404. (R.)

6. In a redemption suit by a tenant against
his landlord, it appeared that that a mort-
gagee in possession of the tenant’s interest
had not been served with the ejectment, and
that on executing the habere, the landlord
made a six months’ lease to him.

On the expiration of that lease, the mort-
gagee refused to deliver possession to the
landlord, and retained it with the privity and
consent of the tenant. The landlord there-
upon brought an ejectment on the title, to
evict the mortgagee and the persons in pos-
session, and recovered judgment therein, but
did not execute his habere. The tenant had
made the mortgagee a defendant to his suit,
and charged that he and the landlord were in
collusion; but the prayer was simply for re-
demption. The usual accounts in a redemp-
tion suit were directed, and also an account
of what the mortgagee, without wilful default,
The Remembrancer
reported that the entire amount of the head
rent, including that for which the ejectment

63
498 Redemption,

was brought, was due; that the mortgagee
might, without wilful default, have received
much more than the amount of the head rent;
and that the landlord, without wilful neglect,
did not receive anything. Held, that it was
not wilful neglect in the landlord not to have
taken possession under the judgment in eject-
ment on the title.

That though the mortgagee was bound to
apply the rents, in the first place, in payment
of the head rent, vet, as no account had been
taken of the sum due on foot of the mortgage,
the plaintiff was not entitled to a personal de-
cree against the mortgagee, to be repaid the
sums which he should be obliged to pay to the
landlord for arrears of rent.

The tenant, before bill filed, tendered much
more than the rent ascertained by the affida-
vit, and the costs, but a little less than the
sum actually due at the time of the tender.
The landlord refused it, claiming to be en-
titled, on a point of law, to a greater amount
of costs than he was ultimately declared en-
titled to. Held, that the tenant must pay the
costs of the redemption suit.—Reade v. De
Montmorency, 5 I. E. R. 40. (E.E.)

1. Semble—That under the 11 Anne, c. 2,
and 4 G. 1, c. 5, a mortgagee out of posses-
sion had the same time to file a bill for re-
demption after eviction, as he had before the
passing of those Acts.

In the application of the Ejectment Sta-
tutes on this subject (redemption), the Court
has a general jurisdiction to exercise its dis-
cretion in dispensing with the strict and lite-
ral performance of the conditions required by
them to be performed.

In the redemption suit, the landlord is
prima facie entitled to his costs, but it is clear
that he may forfeit them by his misconduct,
in resisting the right of a person entitled to
redeem.

A person entitled to an equitable interest
in a lease, which was under ejectment for
non-payment of rent, obtained a loan of
money for the purpose of redeeming it, and
deposited the title deeds with the lender, and
gave him an undertaking to execute a legal
mortgage when required. The lender paid
the sum required for redemption to the land-
lord, and got a receipt for it in his own name.
The rent was subsequently allowed to fall
into arrear; the landlord brought another
ejectment for non-payment, recovered judg-
ment, and executed his habere. Immediately
after the execution of the habere, he wrote to
the person who had previously redeemed the
lands, to know his wishes respecting the ma-
nagement of the property. When the six
months from the execution of the habere were
about to expire, that person tendered a sum
sufficient to pay the rent and costs to the
landlord, who declined to receive it, upon the
ground that he was not entitled to redeem: but
offered to repay him the sum previously ad-
vanced, if he would not interfere. The tender
was subsequently repeated, but declined. with-
out the authority of the person beneficially in-
terested. That authority was subsequently pro-
duced, and the person beneficially interested

[LANDLORD AND TENANT.]

 

Demand, &c.

personally requested that the money tendered
should be accepted. The landlord refused to .
accept it, unless the party tendering it would
execute a trust deed, declaring himself a
trustee of the surplus profits, after payment
of his advances, for the person beneficially
interested. This was declined, and a re-
demption bill was filed within six months, by
the person who had made the previous ad-
vance, and by the persons beneficially inter-
ested, making the landlord and the person
having the legal estate in the lease defend-
ants, but not bringing before the Court a
trustee for the persons beneficially interested,
who had no legal estate or equitable interest
in the lands. //eld, that an equitable mort-
gagee, by deposit of deeds, or any other per-
son having an equitable interest in an evicted
lease, is entitled to sustain a bill to redeem
the lease, under the 11 Anne, ¢. 2.

That the Court has jurisdiction, in a re-
demption suit, to make the landlord pay the
costs of the suit.

That in the present case, the landlord, hav-
ing occasioned the suit, should pay the costs
of it.

That at the hearing of a redemption suit,
the Court may allow the cause to stand over
for the purpose of adding formal parties.—
Malone v. Geraghty, 5 I. HE. R. 549; 3 Dr. &
War. 239; 2 Con. & L. 235. (C.)—[Affirmed,
1 H. Lads. Cas. 81.]

2. Under the Irish Tenantry Act, a demand
need not be minatory in its terms. The de-
mand of the renewal fine may be made on
the tenant’s agent. The demand meant by
the statute is not a formal demand, but must
be such a demand as to give the tenant notice
that he should renew, and of what may be the
consequences of not renewing.— Butler v. Lord
Portarlington, 4 I. BE. R.1; 1 Dr. & War. 20;
1Con.& L.1. (C.)

3. Costs cannot be given to a deft. who sets
up a defence which fails. In this case, be-
cause of the tenant’s conduct, and because
the bill contained an unproved imputation on
the landlord, specific performance of the co-
venant to renew was decreed without costs.—
FitzGerald v. O’ Connell, 6 I. E. R. 455; 1 Jon.
& L134. (C.)

4. The Tenantry Act, and the local equity
which it declares, do not extend to tenants’
covenants to renew. A lease for lives con-
tained a covenant to take a renewal. When
the lives died, the landlord did not enforce
the covenant against the tenants in posses-
sion. Several years afterwards, the premises,
much deteriorated, were assigned to deft.
The landlord’s agent took a part in the as-
signment, had the conveyance altered, and
treated with deft. to grant her a new lease
at a reduced rent, under circumstances which
might have led her to believe that a renewal
would not be enforced, and of which the Court
disapproved, though no fraud was intended.
Held, that the landlord was deprived of his
right to enforce a specific performance of the
covenant.—Alder v. Ward, 8 I. E. R. 350; 2
Jon. & L. 571. (C.)
Redemption,

1. When the landlord insists on his right
that, unless all his rent is paid, he shall have
leave to eject, he will not get costs of the mo-
tion. Secus, if he waives any right— Harris v.
Shea, 81. E. R. 571. (R.)

2. Relief lies in Equity against forfeiture
of a lease during a period when the landlord
dealt with the tenant so as to lead him to
suppose that the forfeiture would not be in-
sisted upon. When a subsequent forfeiture
was incurred after such dealings had ceased—
Held, that the previous transactions raised
no equity.—Flattery v. Anderdon, 12 I. E. R.
219. (C.)

3. Practice touching costs on a motion by
a landlord for leave to proceed by ejectment
for non-payment of rent.— Clendinning v. Knox,
121. E. R. 309. (R.)

4. Upon a lease for lives with covenant for
perpetual renewal, more than one year’s rent
being due, and the landlord being a minor
and a ward of this Court, the Master directed
an ejectment for non-payment of rent to be
brought against the plaintiff (the tenant),
and mortgagees of his interest; upon which
ejectment judgment was obtained by consent,
and an habere executed on the 28th May 1847.
The lessors of the plaintiff in ejectment on
the same day demised the lands to A. (a rela-
tive of the plaintiff, and creditor as against
his estate), for six months, pending redemp-
tion, during which time the plaintiff was, in
fact, allowed to occupy the lands. The mort-
gagor being entitled to three months’ further
time to redeem, the forfeiture could not have
become complete until the 28th Feb. 1848,
during which period the last c. g.v. in the
lease died. Upon the 28th Feb. 1848, the
Master, at the instance of the mortgagees,
ordered that bills payable three months after
date, drawn by the plaintiff and accepted by
A., should be received, “on the part of the
minors, as payment of the rent for which the
habere was executed, and for a further half
year; if bills not paid, the forfeiture to be
complete.”

The solicitor for the minor and his testa-
mentary guardian objected to this order at
the time of its being made; but took the bills,
and on their non-payment caused them to be
protested. The minor, who was near age, im-
mediately upon hearing of the order, expressed
his approbation of it. The plaintiff continued
in undisturbed possession during the currency
of the bills, and on their non-payment refused
to deliver up possession of the lands. An
ejectment on the title was brought in the C.
P. on part of the landlord, by direction of the
Master, against the plaintiff and the mort-
gagees, to which the plaintiff alone took
defence, but a verdict was obtained against
him. Hethen moved that the verdict should
be set aside; but failed in this also, and judg-
ment was recovered against him. He then
filed his bill in this Court, offering to lodge
in Court the rent and costs, and praying a
renewal, redemption, and an injunction to
restrain the landlord from enforcing the judg-

[LANDLORD AND TENANT.] Demand, Sc.

 

499

ment in ejectment. The mortgagees were not
parties to this equity suit. Held, that the
arrangement made on the 28th Feb. 1848 was
binding, and that if the bills had been paid
when due, the plaintiff would have been eu-
titled to relief.

That in consequence of the bills not having
been paid, the Court had no power to decree
redemption, and that the ptf.’s bill must be
dismissed with costs.—Mulloy v. Goff, 1 I. C.
R. 27; 31. Jur. 25. (C.)

5. B. demised lands to G. for three lives, of
which there were two still in being. G., upon
his marriage, settled the lands upon himself
for life; remainder, subject to a jointure, to
the children of the marriage, as he should ap-
point. B. brought an ejectment against G.
for non-payment of rent; but before trial G.
gave a consent for judgment, and agreed to
release his right to redeem the lands, receiving
£100 for the crop, and an additional sum of
£200. The habere was executed, and G., within
the six months, executed a release. G.’s wife
was a party to the deed releasing her right to
jointure. Held, upon a bill filed by the children
of the marriage, that they were entitled to re-
deem the premises, and to have an account in
the terms of the 11 Anne, ¢. 2.

That B. had notice of the settlement under
which ptfs. claimed.—Gorman v. Bunbury, 2 I.
Jur. N. 8. 142. (C.) :

6. A., tenant for a lease for lives renewable
for ever, mortgaged his entire interest, but
remained in possession. ‘The lessor served
upon A. a notice under the Tenantry Act, but
did not serve it upon the mortgagee. - A.
omitted for a considerable period to renew the
lease. <A petition, filed by A. for a renewal,
was dismissed on the ground of laches. Held,
that the mortgagee could not sustain a subse-
quent petition for a renewal on the ground of
the omission to serve him with the notice.

That in the mortgagee’s suit the lessor
could not rely on his affidavit, filed in A.’s
cause, .as evidence of the facts stated in the
affidavit. Galbraith v. Cooper, 6 I. C. R. 518 ;
3 1 Jur. N.S. 69. (C.)—LAffd. 8 H. Lds.
Cas. 315.]

7. A lease for 17 years contained a cove-
nant by the lessors, to renew, as often as they
should obtain a lease of the lands, on the terms
of the lessees paying all rent and arrears of
rent then due to the lessors, and reimbursing
the lessors the renewal fines which, from time
to time, should be payable by the lessors to
their immediate lessors, with interest thereon
from the time or times the several fines should
be paid. After the term expired, rent and
fines accrued due, and the lessors’ interest was.
sold in the I. E. Court. On a petition for re-
newal, filed against the purchaser alone,—
Held, that the lessee was entitled to a renewal
on the terms only of paying all the arrears of
rent and fines due to the lessors and the pur
chaser.

That the suit was defective, inasmuch as
the surviving lessor had not been made a party
to it.
500 Redemption,

The Court decreed a renewal, on payment
into Court of the arrears of rent, renewal
fines, and interest ; and ordered the petitioner
in the I. E. Court, and the surviving lessor, to
be served with notice of the proceedings, ona
reference directed by the decree to ascertain
the amount of rent and fines.

Queere—Whether the surviving lessor or the
purchaser was entitled to the fines due before
the sale and conveyance ?—Steele v. MM‘ Call,
71. C. BR. 122. (R.)

1. In April 1854, A. contracted to let lands
to B. at an occupation rent. The agreement,
in writing, provided that leases should be taken
out within three months. B. immediately
went into possession. In May 1854, B. ten-
dered a draft lease to A., who refused to
execute. In Jan. 1856 A. sold the lands to C.,
who had notice of the agreement. In June
1856 C. tendered to B. a deed of attornment,
describing B. as tenant from year to year;
this B. refused to execute. In March 1857,
C. served a notice to quit upon B.; and in
May 1857 B. filed this petition. Held, that
there was not any abandonment of the lease,
nor such a waiver as disentitled B. to specific
performance of the contract.—Brophy v. Con-
nolly, 71. C. R. 178; 31. Jur. N.S. 330. (C.A.)

2. M., aminor ward of Court was tenant for
lives renewable of lands, of which F. purchased
the reversion. All the lives being dead, F.,
on the 29th Oct. 1855, served a notice upon
the receiver in the minor matter, calling on
him to renew. On the 8th Nov. 1855, the re-
ceiver sent a notice to F., of his intention to
lay the matter before the Master in the mat-
ter. The affairs of the minor were very much
involved, and the report, that it would be for
the benefit of the minor to renew, was not
confirmed until the 5th Nov. 1856. On the
22nd Jan. 1857, a draft grant was forwarded
to F., and returned not approved. On the
25th Feb. 1857, the fines were tendered, but
refused. On the 2nd July 1857, the petition
for a renewal was filed by M. Held, that the
right of renewal was not forfeited.

Quere—Whether a landlord can, without
leave of the Court, serve upon a ward of Court
a notice within the Tenantry Act, so as to
forfeit the minor’s right of renewal ?—Jfan-
sergh v. Fitzgerald, 7 1.C.R. 159; 31. Jur.
N.S. 168. (C.)

3. A lease contained a covenant by the
lessor, on the decease of any of the lives, to
put in another person’s life; the lessee, his
heirs or assigns, giving notice in twelve months
of the decease of the said life. The lessee
was the last surviving life, and his son and
heir-at-law had been abroad for many years,
and, having had no communication with his
family, was supposed to be dead. He did not
hear of his father’s death until after twelve
months had expired, and did not serve any
notice to renew. Held, that there was no
ignorance or unavoidable accident which
would excuse the non-compliance on his part
with the covenant; and a petition for a re-
newal was therefore dismissed.

31. Jur. N.S. 132.

 

[LANDLORD AND TENANT.] Demand, Sc.

Matters not put in issue by the petition, or
by amendment thereof, cannot be relied on at
the hearing of a cause petition. It is not
sufficient to put them in issue by an affidavit
in reply. —Murphy v. Jackson, 7 I. C. R. 189;
(R.)—[Affd. 7 I. C. R.
502; Dr. Rep. temp. Napier, 72;3 I. Jur. N.S.
288. (C.A.)]

4, In 1820, A. obtained a lease with cove-
nant for renewal ¢. g., the lessor being tenant
under Trinity College. In 1821, A., on his
marriage, conveyed his interest in the lease,
upon trusts for the benefit of the intended
wife, and the issue of the marriage. It did not
appear whether A. took any or what estate
under the settlement, but he continued in pos-
session. In 1845, the lessor having obtained
a renewal from the College, served a notice
on A., calling on him to renew and pay the
renewal fine. A. died in 1852, without having
taken out a renewal, and the surviving trustee
of the settlement, after the expiration of the
lease, filed a petition. Held, that the notice
served on A. was sufficient to create a for-
feiture of the right of renewal.

The service of a notice by a deceased person
was proved by a contemporaneous indorse-
ment by him on the notice, but it was not
proved to have been served in the ordinary
course of his business. Held, that the indorse-
ment was not admissible in evidence.

After the death of A., his executor and the
lessor entered into a negotiation, in the course
of which the latter consented to renew the
lease on condition that a renewal of other
premises, which were dilapidated, was also
taken out. Held,-that he had not thereby
waived his right to rely on the forfeiture —
Orr v. Littlewood, 8 I. C. R. 348. (R.)

5. In July 1859, A. agreed to give a lease for
seven years to B., commencing on the Ist Nov.
1859. A. having refused to execute the lease,
on the ground that his own lease contained a
covenant for payment of an increased rent, if
he should sub-let or assign without the head
landlord’s consent; B. obtained such consent
in Oct. from the head landlord. Held, that
such consent satisfied the provisions of the
Subletting Act; and that the word “ void,” in
its 2nd sec., meant ‘“ voidable” only.—Strick-
land v. M‘Nicholas 5 I. Jur. N. 8. 258. (C.)

6. D., the sub-tenant of a portion of lease-
hold property, undertook to pay the head rent,
but fraudulently omitted so todo. The head
landlord evicted the lease for non-payment of
rent. More than six months after the execu-
tion of the decree, the head landlord offered
the sub-tenant the option of redeeming or of
taking out a new lease to himself. The sub-
tenant elected to take a new lease. Held, that
there was no waiver of the forfeiture in favour
of the mesne tenant.—Dowding v. Commrs. of
Ch. Don. & Beg. for Ireland, 121. C. R. 361. (C.)

7. A lease, with a covenant for perpetual
renewal, on payment of a peppercorn fine,
over and above the annual rent thereby re-
served, is within the Tenantry Act,-19 & 20
G. 8, ce. 80 Ir.)
Tenants under

A notice, demanding possession of the lands,
is a sufficient demand to work a forfeiture
under the Tenantry Act.

A landlord, who had purchased the rever-
sion in a lease for lives renewable for ever,
upon payment of a peppercorn fine, in June
1860, served a notice, demanding possession,
the lives in the lease having expired. He
afterwards refused to renew, except upon pay-
ment to him of the whole arrear of rent due,
including that which accrued before his pur-
chase, to a portion of which only he was
entitled. A petition for a f. f. grant was pre-
sented in June 1861; and a cause petition
was filed by direction of the Court. Held, that
as the landlord had demanded more than he
was entitled to, the right to a renewal had not
been forfeited. But the tenant, not having
tendered the rent due to the landlord, was
decreed to pay the costs of the suit, and of
the petition for a f. f. grant.— Williamson v.
Tuckey, 14 1. C. R. 407. (R.)

V. 3. Respecting Lands and Tenants under the
Court.

[The proceedings in reference to lands and
tenants under the Court are regulated by a
number of orders of the Court of Chancery,
made from 1843 to the present time.—See
Gamble’s Chancery Orders, page 157 to 258;
and this practice is preserved by the Chancery
(Ireland) Act 1867, 30 & 31 Vie., c. 44, ss. 49
& 50.]

1. The Master cannot re-let lands until the
person who, at the original letting, was de-
elared tenant, has been attached for not
taking out his lease, and until that letting
has been set aside.—Cole v. Moncks; Moncks
v. M., 1 Hog. 128. (R.)

2. Costs of suing a surety upon his recog-
nizance for a tenant under the Court cannot
be recovered in addition to the sum secured
thereby ; such recognizance not being a secu-
rity for a debt really due to the Crown.

Costs of an attachment for non*payment
of rent against a tenant under the Court are
properly chargeable against his surety, pro-
vided the surety be not charged beyond the
amount of his recognizance.—Keily v. Murphy,
S. & Sc. 479. (R.)

3. A petition, by a solvent surety of an in-
solvent tenant, to surrender, or reduce the
rents of, premises whereof the value had
greatly diminished since the lease was made,
was dismissed with costs.

Semble—It is an erroneous general principle
whereby Courts of Equity are supposed to
regard a surety more favourably than his
principal.—In re O’Neill’s Minors, 8. & Sec.
686. (R.)

4. A tenant applied for a reference—whe-
ther a composition should be accepted for the
arrears of his rent?

Granted at his expense, and upon other
very strict and special terms.—Fitz Gibbon v.
Flynn, 8. & Sc. 687. (R.)

 

5. A motion by a tenant, who held at an

[LANDLORD AND TENANT.]

 

the Court. 501

exorbitant rent, for an abatement, was re-
fused with costs, though not opposed by the
parties in the cause.—Maguire v. Richards, 8.
& Se. 690. (R.)

6. A motion by a tenant under the Court,
for a sum towards building a new house on
the demised lands, was refused; the tenant
being bound by his lease and recognizance to
pay his rent, and to keep the old house in
repair.— Palmer v. Newport, 8. & Sc. 691. (R.)

7. When a suit is compromised before the
expiration of a lease for five years, pending
the cause, the tenant is entitled to compen-
sation for whatever moneys he has bona fide
expended for the benetit of the demised lands.
Garstin v. Nangle, H. & J..542. (.E.)

8. A solvent person, who had been declared
tenant to lands let under the Court, will not
be discharged from his bidding because he bid
more.than the real value, and because he had
been threatened with death, if he took posses-
sion.

Upon undertaking to abide any order of the
Court consequent upon re-letting, he was
permitted to have the lands re-let.

Upon the re-letting, a less rent was ob-
tained. A reference was granted to ascer-
tain the amount of compensation, and the
applicant was ordered to enter into a recog-
nizance to pay it by half-yearly instalments
during the term of the original letting.—Cox
y. OS. & Se. 697, n.; 21. E. R. 160, 2. (R.)

9. The sureties of a tenant under the Court
moved to reduce the rent. The receiver, and
all parties interested, consented. Motion
granted upon the terms that all arrears should
be paid—J‘Evoy v. M‘E., S. & Sc. 699. (R.)

10. Goods of a defaulting tenant were seized
by a third person under a civil-bill decree.
Notwithstanding the receiver’s notice of a
claim for rent, the goods were sold. Held,
that the receiver might proceed to recover the
produce of the sale: the Court considering
that an action would lie under the 9 Anne (Jr.),
c. 8. The receiver was not allowed to oppose
the tenant’s discharge as an insolvent, in order
to induce the Insolvent Court to compel a
surrender of his lease, this Court considering
that the Insolvent Court had not jurisdiction
to enforce such surrender.—Hawkes v. Smith,
8. & Se. 712. (R.)

11. The head landlord applied for leave to
bring an ejectment against a tenant over
whose interest a receiver had been appointed.
Held, that he should have liberty to eject if
the receiver did not pay the head rent within
one month; the costs of the motion to be
paid by the receiver, if he paid the head
rent ; without prejudice to his being disallowed
them if the motion had been rendered neces-
sary by his misconduct in not paying the head
rent.—Lvans v. Norcott, Long. & T. 380. (E.E.)

12. The receiver over a leasehold or other
derivative interest or estate should pay the
head rents regularly. If the landlord is obliged
502 Tenants under

to apply for leave to proceed, the Court will
make the receiver pay the costs of the appli-
cation, if he had funds to pay the rent; or,
otherwise, will give the landlord his costs
against the funds in the cause.

Semble—That the landlord might proceed
for his rent without asking the Court’s leave.
Walsh vy. W.,1 1. E.R. 209. (R.)

1. A tenant under the Court, being in de-
fault, took the benefit of the Insolvent Act.
Held, that the sureties’ recognizances should
be put in suit, though it appeared that the
receiver might, by using due diligence, have
recovered the arrears from the tenant.—
Richardson v. Walsh, 11. E. RB. 147. (R.)

2. After a decree to sell, the tenants refused
to show their leases, &c. Ptf. was, therefore,
unable to make out a rental. The Court
ordered the lands to be let, unless cause shown
in ten days; and that any tenant showing
cause should state particularly the nature of
his tenure.—Peyton v. M‘Dermott, 1 I. E. RB.
326. (R.)

3. An affidavit made by a receiver in sup-
port of an application for liberty to let lands
must show clearly that they are not in the
possession of under-tenants. An order to let
will not be made upon consent.—Sealy v.
Munns, 11. E. R. 332. (E.E.)

4, Upon a letting under the Court, the
highest bidder will not be discharged from
his bidding, though made at a great over-
value, by an agent who appeared to have
misapprehended his instructions. The lands
may be set up again, upon the bidder’s under-
taking to pay all costs occasioned by a re-
letting, and to enter into security by recog-
nizance to pay yearly during the term a sum
settled by the Master as compensation for the
loss, if any, sustained by the re-letting. The
bidding being at £261 yearly, and excessive,
the Court, upon consent, ordered that the
bidder be deemed tenant at £200, and that
he should take out leases at that rent, &c.—
Coote y. C., 21. E.R. 159. (R.)

5. A tenant held lands under an unstamped
accepted proposal, which rendered him liable
to pay tithe composition. On motion—Held,
that the receiver over the landlord’s estate
should stamp the proposal, and should be al-
lowed the expense thereof when passing his
account.—Langley v. L.,1 Dr. & Wal. 252. (C.)

6. A landlord filed against his immediate
tenant a bill to restrain him from cutting turf
for sale on a valuable bog appurtenant to the
demised lands. The tenant, by his answer,
stated—that he had never been in actual oc-
cupation of any part of the lands; that he
had never by himself or any agent committed
the waste charged by the bill; and that he
was unable to restrain his sub-tenants from
cutting turf for sale or otherwise, if they had
so cut it, the practice having existed before
he came into possession. It did not appear
whether those sub-tenants held from year to

[LANDLORD AND TENANT.]

 

the Court.

year, or had a greater interest. Held, that,
since they were not before the Court, the in-
junction could not issue—Norbury v. Alleyne,
1 Dr. & Wal. 337. (C.)

7. The Court deals with its tenants as te-
nants at will. Therefore when a tenant has
been let into possession under the Court for
seven years, or pending the cause, the Court
will not grant an injunction to dispossess him,
unless upon an aflidavit respecting the state
of his crops.—O’ Connell v. O’ Callaghan, 3 I. E.
R. 199; Long. & T. 157. (E.E.)

8. When lands, let under the Court for seven
years, pending the cause, are sold under the
decree, and the tenancy determines before the
term, the purchaser having at the sale notice
of the tenancy, and going into possession, is
not entitled to the crops sown by the late te-
nant, and growing on the land. The late
tenant is entitled to emblements, and is not
affected by the custom of the country touch-
ing the outgoing tenant’s right after the ex-
piration of his lease.

Semble—If, in such a case, the purchaser
insists on retaining the crops, the Court will
direct at his expense a reference respecting
their value, and the damage in relation thereto
sustained by the late tenant.—Creed v. C., 3
I. E. R. 207. (R.)

9. A tenant, under the Court, for seven
years, pending the cause, whom the purchaser’s
injunction has dispossessed in the interval be-
tween two gale days, must pay rent for the
period of his occupation after the last gale
day. It will be referred to the Remembrancer
to ascertain the amount of such rent, having
regard to the season of the year when the
broken gale happened, and to the nature of
the premises.—Jameson v. Farrer, 3 I. E. R.
513. (E.E.)

10. Lands were let under the Court, for seven
years, pending a judgment creditor’s petition.
Before the seven years expired, the lands were
sold out of Court, with petitioners’ consent, to
pay their demands. The tenant gave up
possession to the purchaser. Held, that he
must pay a rent for the time during which he
continued in possession, from the last gale day
to the day when he gave up possession.—
Jackson v. J. 51. E.R. 591. (E.E.)

11. An application by sureties of a tenant
under the Court for leave to surrender the
lands, because the tenant had become insol-
vent, and because the lands had fallen in
value, was refused with costs.

The sureties of a tenant under the Court
can have no greater claim to relief from a
letting alleged to be at an over-value, than
the tenant himself would have.

Semble—If the tenant be entitled to relief,
so will the sureties.—Jn re Langfords, 61. E.R.
398 ; Hone v. Langford, Dr. Rep. temp. Sugden,
328. (C.)

12, In the exercise of a sound discretion, the
Master may refuse to declare the highest
bidder tenant. On the bidder’s application
Ren. Lease.

the Court reviewed the circumstances, and
declared him tenant at the rent which he
offered.—In re Costellos, 71. E. R. 491; 2 Jon.
&L. 244. (C.)

1. Order of reference, to inquire and report
whether the rent of tenants under the Court
should be abated, granted upon consent of in-
heritor’s solicitor given in open Court.—
Morrow v. Sausse, 8 I. E.R. 519. (E.E.)

2. A judgment creditor having procured the
appointment, as receiver over his debtor’s
land of a person in his own employment,
brought forward a person of the same name
as the respondent to bid at the letting, in trust
for the judgment creditor. That person was
declared tenant at an undervalue, upon the
supposition that he bid for the respondent.
After the lapse of three years, and though
petitioner had laid out money in improve-
ments, the Court, on respondent’s motion, set
aside the letting as fraudulent; but refused
to make petitioner accountable as for wilful
default. A petitioner cannot bid without the
Court’s leave—Malcolmson v. Eagar, 10 I. E.
R.1. (R.)

3. A tenant’s recognizance was executed at
the same time as his lease, but was not en-
rolled for four years after. In the meantime
the tenant became insolvent, and incumbered
his property. Held, that the non-enrolment
of the recognizance when the lease was exe-
cuted did not discharge the surety.

Quere.—Whose duty is it to enrol the re-
cognizance ?—Jephson v. Maunsell, 10 I. E. R.
132. (R.) [Affd.; 10]. E.R. 182. (C.)]

4, Upon consent of parties claiming sub-
stantial interests in the lands in litigation,
the receiver over those lands was allowed to
become tenant of part thereof; that course
promising benefit to the estate.— Stannus v.
French, 181. E.R. 161. (C.)

5. A sequestration on a final decree abates
with the suit. Therefore, a deft.. who was
arrested for contempt in not furnishing a ren-
talto sequestrators, under an attachment sued
out pending abatement by a sole ptf.’s death,
was discharged by the Court.

But in Ireland it is the practice to grant to
receivers attachments against tenants under
the Court, notwithstanding a total or partial
abatement of the suit.—Brennan v. Kenny, 2
I. C. R. 579. (R.)

6. A tenant under the Court, in April 1857,
sowed artificial grass on the lands which he
grazed from Oct. 1857 until May 1858, when
he began to preserve the grass for meadow.
In that month his tenancy expired. Held,
that he was not entitled to emblements of the
artificial grass——Flanagan v. Seaver, 9 I. C. RB.
230. (R.)

 

V. 4. Renewable Leasehold Conversion Act,
12 & 13 Vic., c. 105.
7. An agreement (contained in a memorial)
to demise lands for three lives, “ with a clause

[LANDLORD AND TENANT.]

 

Convn. Act. 503

of renewal, provided the lessee, within six
calendar months from the death of the last of
the said three lives, should nominate such life
or lives as he would have inserted in any lease
to be made thereof, and paying as well all rent
due for the half year after the fall of such
life, as the sum of £11. 7s. 6d. for renewing or
adding such life or lives for ever,” is an agree-
ment or covenant for perpetual renewal.—
Biggs v. Sadleir, 10 1. B. R. 522. (E.E.)—{ See
4H. Lds. Cas, 435.]

8. Under 12 & 13 Vic., c. 105, when the fine
is nominal, in the absence of particular cir-
cumstances, a landlord is not entitled to com-
pensation from the mere conversion of the
reversion into af. f. rent.— Ex parte Somerville,
21. Jur. 203. (R.)

9. In a fee-farm grant under the Ren. Lease
Cony. Act, the Court will frame the covenants
so as not to vary the existing rights and
liabilities of the parties. Where it was alleged
that since a former renewal there had been a
breach of a covenant to keep the premises in
repair, the covenant inserted in the f. f. grant
was to keep in repair the premises as they
were at the time of that renewal. — Ex parte
Waldron, 11. C. R. 269. (R.)

10. A. being seized in possession of the K.
estates for life, remainder to his son B. for
life, remainder to C. (grandson of A.) in fee,
all three joined in demising, by indenture, a
small portion of K., and of mills erected there-
on, and the rights, easements, and appur-
tenances belonging to those mills, together
with the grist, toll, mulcture, or succon, or other
mill duties usually paid to A. by the tenants
of K., at the rate of one-sixteenth part of the
corn ground, as toll or mulcture for grinding ;
reserving out of the demise all royalties to A.,
his heirs and assigns; with liberty for A., B.,
and C., according to their respective interests,
their heirs and assigns, to enter for the
purpose of availing themselves of the royalties
at any time during the demise, at the pleasure
of A., his heirs and assigns; to hold during
three lives, and such lives as should be added
in pursuance of a covenant for perpetual
renewal thereinafter contained. By the red-
dendum clause the rent was reserved as to part
of the demised premises to A., B., and C.,
according to their respective interests, their
heirs and assigns; and as to the residue of the
demised premises, to A., his heirs and assigns.
There followed, however, a covenant by the
lessees to pay the rent of all the demised
premises to A., B., and C., according to their
respective interests, their heirs and assigns.
The lessees also covenanted to grind, toll-free,
all corn for the household of A., B., and C.,
their heirs and assigns, in such of the mills as
A., his heirs and assigns, might send it to;
and to grind corn for all the tenants of K., at
a charge of one-sixteenth of the grain ground.
Then followed a covenant by A., for himself,
his heirs and assigns, that all the present
tenants of K. were bound, and that all the
future tenants should be bound, to bring their
corn to be ground at that rate at the demised
504 Ren. Lease.

mills, and that in default of the tenants so
doing, A., his heirs and assigns, would permit
legal proceedings to be taken in their names
in order to compel the tenants so to bring
their corn to be ground, &c., and would pro-
duce the counterpart of their leases for that
purpose. Next came a covenant for perpetual
renewal by A., for himself, his heirs, and
assigns; and finally covenants by A., B., and
C., for themselves, their executors, &c., for
quiet enjoyment, and for further assurance;
such further assurance to contain no covenant
or warranty that was not already contained in
the lease.

Indorsed upon the lease before its exe-
cution was a memorandum that if any of the
tenants of K. were not bound by their present
leases to grind their corn at the mills, A., his
heirs and assigns, should not be liable to com-
pensate the lessees of the mills if such tenants
were not so bound, and neglected to grind
their corn at the mills.

The lands demised were, without the profits
arising from the mills, wholly inadequate to
meet the amount of rent reserved. A. and B.
and some of the c. g.v. having died, a bill was
filed, and a decree for a renewal was pro-
nounced against C. Held, that in the new
lease C. was not bound to enter into the
covenants with respect to the mill duties con-
tained in the original lease on the part of A.,
his heirs and assigns.

That C. was bound to enter in the new lease
into all the covenants into which he had
entered by name in the original lease.

Semble—That if the demise by A., B., and C.
had not been as well for all future lives to be
added to the lease as for the original lives, C.
would not have been bound to renew by the
covenant for perpetual renewal on the part of
A., his heirs and assigns.

Held, that C., having alleged in his answer
breach of covenant by the lessees as a defence
to the bill for renewal, and having failed in
proving it, must pay the costs occasioned by
that defence.

A covenant for a renewal is a covenant to
grant an estate; and implies the insertion of
such covenants as are incidental to the legal
estate, having regard to the tenure; and a
covenant for a lease contains a contract that
it shall be accompanied by the ordinary cove-
nants. The party renewing is bound to give
that which those from whom he derives were
bound to, and did give by the original con-
tract.— Vance v. Ranfurly, 1 1. C. R.321. (C.)

1. An original lease, and the renewal, con-
tained a reservation of £5 yearly for every
acre on the premises that should be plough-
ed, &c., without the consent of the lessor,
and so for a lesser quantity, except for the
planting of trees; and £5 for every acre
of the premises which should be let to any
person who should hold any part of ad-
jacent lands; and forty shillings yearly for
every tenant or under-tenant inhabiting on
the premises that should be a Papist, or so
reputed; and covenants to fence the lands
and to pay the rents and penalties. Held, on
a petition under the 12 & 13 Vie., c. 105 (Ren.

[LANDLORD AND TENANT.]

 

Convn. Act.

Lease. Con. Act), that the lessee was entitled
to have the reservation as to the meadow
commuted under sec. 3 of the Act; and that
meadow meant meadow at the date of the last
renewal.

That the reservation for letting to persons
holding the adjacent lands, could not be omit-
ted from the f.f. grant, or commuted, as it was
not a covenant interfering with the proper
cultivation of the land within the 3rd sec.

That the reservation for every Papist tenant
was not illegal; was a subsisting clause within
the Ist sec.; and did not interfere with the
proper cultivation of the land; and therefore
could neither be omitted nor commuted.
Mahony v. Tynte, 11. C. R. 577. (R.)

2. Lease for three lives reserved a rent of
£20, and also one couple of well-fatted capons,
or five shillings in lieu thereof, at every Christ-
mas, and the work of two labourers for one
day in harvest, or two shillings in lieu thereof,
yearly during the demise, as duties for every
dwelling-house built, or to be built, on the
premises, or any part thereof; and contained
a covenant for perpetual renewal on payment
of one year’s rent and duties as therein re-
served, over and above the annual rent and
duties as therein before reserved. The lands
were subdemised to the officers of the
Board of Ordnance, for 950 years, in 1810,
and military barracks were built on them,
which consisted of twenty-nine houses, some
of which were detached from the others, and
all having separate entrances opening into the
barrack-yard, and without any internal com-
munication, the whole barracks and yards
being inclosed by an outer wall, the houses
being quarters for officers, soldiers, &c., and
for other military purposes. Held, that the
lessee was entitled to a f. f. grant under the
Ren. Lease. Con. Act.

That the possibility of additional dwelling-
houses being hereafter built on the premises
was not to be considered as worth anything
in computing the f.f. rent to be reserved,
having regard to the premises being a barrack,
and demised to the Crown for 950 years; and
that any additional building for barrack ac-

.commodation would not be a distinct dwel-

ling-house within the reservation in the lease.

That the barracks were to be considered as
one house, the military not being occupiers,
but servants of the Crown.

Every lease for lives renewable for ever,
made before the passing of the Act, or after
the passing of the Act, in pursuance of a
covenant or agreement entered into before, is
within the 1st sec.; and a difficulty im calcu-
lating the amount of the f. f. rent under the
2nd sec. does not take it out of the Act.—
ix parte Barlow, 21. C. R. 272. CR.)

3. A lease (of lands) made in 1778, for three
lives, contained a covenant for renewal (on
payment of a peppercorn fine) during the
continuance of a lease (of other lands) which
was to expire at Easter 1781, and during
seventy years, commencing from that period.
It also contained a proviso,- by which the
lessee waived all right to a renewal if he did
Ren. Lease.

not nominate, within twelve months after the
fall of each life, the new life intended to be
substituted for that which had expired. It
was renewed in 1820. One of the ug. v.
named in the renewal went abroad in 1825,
and after 1833 was never heard of. In 1848,
the two other c. g. v. being alive, the lessee
applied to the lessor for a renewal, but was
refused. At Easter 1851, the seventy years
expired. On the 14th April in the same year,
the lessee filed his cause petition for a renewal.
Held, that he was entitled to such renewal.

That he was not bound to institute inquiries
abroad as to the existence of the absent c. ¢. v.

That the case was not one in which the
lessor was entitled to compensation.

That there should be inserted in the decree
a declaration, that if it should be proved
afterwards that the absent c.g. v. was dead at
Easter 1851, the renewal should be null and
void. The Court, however, refused to declare
that if it should be proved afterwards that, if
the c. g. v. were dead more than a year before
the demand in 1848 for a renewal, the renewal
should be null and void.— Wisdom vy. Corpora-
tion of Dublin, 21. C. R. 306. (C.)

1. Construction of the Renewable Lease-
hold Conversion Act, s. 5—When the land-
lord is seized in fee of the reversion, he is
entitled to compensation under that section
for the conversion of his estate in the rever-
sion into an estate in the f. f. rent.— Er parte
Knox, 31.C.R.57. (R.)—[Overruled: Thack-
well v. Jenkins, 4 I. C BR. 243. (C.); In re
Lawless, 41. C. R. 230. (P.C.)]

2. A landlord, seized in fee of the reversion,
is not entitled to compensation under the
Ren. Lease. Conv. Act, s. 5, for the conversion
of the reversionary estate into a f. f. grant.—
Ex parte Knor, 3 I. C. R. 57, overruled.
Thackwell v. Jenkins, 41. C. R. 243; 71. Jur.
61. (C.)

3. A landlord, seized in fee of a reversion
on a lease for lives renewable for ever, is not
entitled to compensation for the loss of that
reversion, by the conversion of it into an
estate in the f. f. rent under the Ren. Lease.
Conv. Act, unless a case of special loss be
shown, to which alone the 5th section of the
Act applies—[Overruling Ex parte Knox, 3
I. C. R. 57.J—In re Lawless, 4 I. C. RB. 280.
(P.C.)

4. When a lessee for lives renewable for
ever requires a f. f. grant under the Act, and,
the owner of the reversion is a minor or
lunatic; or a receiver is in receipt of the
rents; it is the lessee’s duty to apply, in the
first instance, for the f. f. grant to the guar-
dian or receiver, who should apply to the
Court to ascertain whether such grant should
be made; and if he neglects to do so, he may
be charged the costs of the lessee’s petition
thus rendered necessary for obtaining such
grant.—In re Roberts, 1 L. Jur. N. 8. 248. (R.)

5. A lease for lives renewable for ever,

[LANDLORD AND TENANT.]

 

made before the passing of the 5 G. 3, ¢.17

Convn. Act. 505

C/r.), contained an exception of all timber
trees then standing or growing, or being, or
which at any time thereafter should be stand-
ing or growing, or being on the demised pre-
mises. Held, that in a fee-farm grant under
the Renewable Leasehold Conversion Act,
the exception should not be inserted in those
terms, but should be altered, having regard to
the rights of the tenant under the statute.—
Ex parteArmstrong, 8 I. C. R. 30. (C.)

6. In 1695, leases were granted for 99 years,
by a person seized for lives renewable for
ever, with covenants that, as often as the
lessor should, after the death of the lives then
in being, obtain a renewal, the lessee, his
executors, &c., should pay one whole year’s
rent; in consideration whereof, the lessor, his
heirs, &c., should, from time to time, renew to
the lessee, his executors, &c., a new lease for
99 years, determinable on the lives to be in-
serted in the lessor’s renewal, and under the
rents, covenants, articles, and agreements, in
said lease expressed; the true intent and
meaning of the parties being, that the lessee,
his executors, &c., on payment of one whole
year’s rent, as above stated, should and might
have the term of 99 years of the premises,
under the covenants, conditions, and agree-
ments, in said deed expressed, for ever in
being and undetermined. In 1721, the lessor
obtained a f. f. grant of the premises. Re-
newals were from time to time granted, until
the year 1811, when the last renewals were
made. Those renewals recited the obtain-
ing the original leases, the f. f. grant to the
lessor, and that his grandson, in 1789, had
executed renewals, in pursuance of the cove-
nant for renewal, for 99 years, if A. should so
long live. They also recited a further renewal,
in 1740, after the death of A., for 99 years, if
B. and C. should so long live; the death of
B. and C.; and that the renewal fines, which
thereupon accrued due having been paid, a
further renewal was afterwards obtained, one
of the lives of which had died, and that the
person entitled to the lessee’s interest had
paid the renewal fines which thereupon ac-
crued, and the lands were thereby demised
for 99 years, determinable on three lives; and
it was covenanted that the lessor in the re-
newal, his heirs, &c., should, from time to
time, renew to the lessee, his executors, &e.,
for 99 years, determinable on the lives so to
be inserted, at and under the rents, covenants,
articles, and agreements “in the present de-
mise expressed;” the true meaning being that
the lessee, &c., on payment of the sum of one
shilling, should have the term of 99 years of
the premises, under the rents, covenants, con-
ditions, and agreements “in these presents
expressed,” for ever in being and undeter-
mined; and that the lessor, his heirs, &c.,
should give the lessee, his executors, &c., on
payment, or due tender of the aforesaid sum
of one shilling, « lease of the premises, with
such clauses of renewal as were therein ex-
pressed, at and under the aforesaid rents and
reservations. Held, that notwithstanding the
f. f. grant of 1721, the lessor’s representatives
were bound to renew the leases, and conse-

64
506 Ren. Lease.

quently to grant a f. f. estate under the Ren.
Lease. Con. Act.

That on the construction of the covenants
in the renewal of 1811, a fine was payable on
the fall of each life.

Although covenants for renewal cannot be
construed by the acts of the parties, the Court
would be unwilling to act against the con-
struction acted on by them for a long period,
unless that construction be clearly erroneous.
In re Gore, 8 I. C. R. 589. (R.)

1. H., being seized for lives renewable for
ever, under a lease of 1793, of A., on which
bleaching mills had been built, and being
possessed of B. and C. under a Bishop’s lease,
with a covenant for renewal, made a lease in
1815, by which he demised A. and B. for 20
years, with az. g. covenant for renewal; and
by a lease of the same date, reciting that he
had made mill-ponds and millraces on C. for
the convenience of his linen mill, he demised
C., together with the millrace and watercourse,
with all rights, &c., as then or theretofore en-
joyed by himself; to hold for all the term
whereunto he was then entitled, or should be-
come entitled, with a t.g. covenant for renewal ;
and after reciting that C., as containing a
head of water, sluices, and watercourses, was
most essential, useful, and necessary to the
operation of the bleaching mills which were
demised by the contemporaneous lease, it was
agreed that if the in part recited mill lease,
and the buildings, lands, and premises thereby
demised, should at any time thereafter revert
to the lessor, his executors, &c., by any due
and legal means, the thereby demised premises
(C.) should also be liable to revert to the
lessor, his executors, &c.; the lease being made
for the advantage of the operations of the
mills, and not to endure longer than the lessee,
his executors, &c., should hold the same in
part recited mill lease, and the buildings, &c.,
thereby demised. In 1827, separate renewals
were granted of A., B., and C., in consequence
of a new arrangement entered into by the
parties entitled, on the suggestion of a diffi-
culty being likely to arise from A. and B.
(which were held under different tenures)
being included in one lease, both parties being
represented in the transaction by different
solicitors. By the renewal of C. it was recited
that the premises demised by the lease of C.
in 1815, and thereinbefore mentioned as con-
taining a head of water, sluices, and water-
courses, were most essential, useful, and
necessary for the operations of certain bleach-
ing mills, which were demised by an indenture
of lease bearing equal date with the lease of

“1815, and made between the same parties; and
which were also by an indenture of equal date
therewith in like manner renewed; and if the
in part recited mill lease, and the buildings,
lands, and premises thereby demised, and
thereinbefore particularly mentioned and de-
cribed, should thereafter revert to the lessor,
his executors, &c., by any due and legal means,
it was thereby, as it was in the part recited
original lease, declared and agreed upon, by
and between the parties thereto, that the

[LANDLORD AND TENANT.]

 

Conun. Act.

to revert to the lessor, his executors, &c.; the
renewal being made, as was the original in-
denture of lease, for the advantage of the
operations of the mills, and not to endure
longer than the lessee, his heirs, &c., should
hold the in part recited mill lease, and the
premises thereby demised. ‘The petitioner, in
whom the lessee’s interest had become vested,
took a f. f. grant of A., the mill premises, but
declined to take a renewal of B. The respond-
ent, in whom the lessor’s interest had become
vested, refused to give a renewal of C. Held,
that the petitioner’s right to a renewal of C.
depended on the covenant in the renewal of
1837; and there being no fraud or mistake
alleged, and no cross petition to set aside that
deed, the Court decreed a renewal.—__M‘ Murray
v. Burrowes, 91. C. R. 234. (R.)

2. A., being seized, for three lives renewable
for ever, of lands, under a lease of 1769, and
of other lands for two lives, under a lease of
1772, demised them in 1788 for three other
lives, with a covenant for perpetual renewal.
In 1793 B. purchased A.’s interest, and in
1802 B. became entitled to the reversion in
fee by devise. In 1809 the last life in the
lease of 1772 died, but B. was not apprised of
his death, and continued to receive the rent
reserved by the lease of 1788 until his own
death in 1825. In 1819, B. on his marriage
conveyed all his estate in the lands to trus-
tees, to the use, in the events which hap-
pened, of his son. Held, that B.’s son was
not bound by the covenant in the lease of
1788 to grant a renewal of the lands demised
by the lease of 1772.

B., being bound by a covenant, by reason of
its running with a mesne reversion, but being
under no personal liability whatever, acquired
the fee from a person not affected or bound
by the covenant. B. is not liable to perform
the covenant, by reason of his having acquired
the fee.

Semble—It would have been otherwise if
B. had been personally bound to perform the
covenant.— Kent v. Stoney, 9 I. C. R. 249.

(R.)

3. In 1822, A., entitled to the reversion of
a lease for lives, with covenant for perpetual
renewal, which had been renewed in 1808, con-
veyed the reversion to B. In 1854 a petition
was filed by C. (B.’s heir-at-law), against the
executrix of D., the tenant, heir-at-law of A.,
to recover arrears of the rent against D.’s
assets.

. In defence it was alleged that A. was in-
sane when he executed the deed of 1822. In
1857 C. served a notice on E. (D.’s heir), who
was entitled to the interest in the lease, calling
on him to pay the renewal fines, and to take out
a renewal; which E. by notice declined to do,
until C.’s title to the reversion was established
in the suit. In Jan. 1858 the suit was termi-
nated by an order in favour of C. In Nov.
1858 E. served a notice offering to take out a re-
newal, and in Dec. 1858 he tendered the renewal
fines and a draft renewal, and filed a petition
for renewal in Feb. 1859. Held, that the right

therein demised premises should also be liable | to a renewal was forfeited—Aong v. L., 10
Ren. Lease. Con. Act. [LANDLORD AND TENANT.] René, Tithes, Se. 507

LC. RB. 406. (R.)—[Affirmed: 11 L CR.
952; 61. Jur. N.S. 49. (C.A.)]

1, A lease for lives renewable did not reserve
any renewal fines. The tenant having been
embarrassed, a receiver was appointed over
his interest, and an order for a sale of it in
the I. E. Court made. In 1856 and 1857, the
solicitor having the carriage of the proceed-
ings in the I. E. Court applied to the rever-
sioner foraf.f. grant. To this application
no answer was returned. In 1858 the rever-
sioner wrote u letter to the tenant, requiring
him to take out a renewal. This was not
served on the receiver. The receiver was
afterwards discharged, and the order for sale
stayed. In 1859 the tenant applied for a f. f.
grant, which the reversioner refused to make.
Held, that the tenant was entitled to a re-
newal.— Bond v. Slator, 10 I. C. R. 472; 5 I.
Jur. N. 8. 274. (C.) ©

2. In converting a lease for lives renewable
for ever, the L. E. Court will make no sub-
stantial increase in the rent, by reason of the
commutation of the covenant giving the land-
lord the right of pre-emption—ZJn re Jackson,
111L.C.R.145. (L.E.C.)

8. The contributions to renewal fines of the
tenant of a college lease, and his sub-tenant,
with a ¢. g. covenant for renewal, are in pro-
portion to the annual value of their respective
interests. In calculating the value, the rent
payable by each is to be deducted. If there
were buildings on the land at the date of the
sub-lease, they are to be takeu into account,
in ascertaining the value.

Quere—If the buildings have been after-
wards erected ?—Orr v. Littlewood, 11 I. C. R.
502; 61. Jur. N. 5. 301. (R.)

4, A lease for lives renewable for ever was
made in 1706. In 1752, an under-lease of
part of the lands demised by the lease of 1706
was made. In 1851, the interest in the lease
of 1706 was sold in three lots, by the I. E. C.,
and conveyed by separate deeds to A., B., and
C. The whole of the lands demised in 1752
were comprised in the lot sold to C., and the
conveyance was was made subject to that
lease. The lots sold to A. and B. were con-
veyed discharged of the lease. C. was also
entitled to five-ninths of the interest in the
lease of 1752. DD. was entitled to the re-
maining five-ninths. Held, that C. alone,
without A. and B., was the proper granting
party to « f.f. grant under the Ren. Lease.
Con. Act.

That D. was entitled, under the Act, to
require a f. f. grant from C.—Palmer v. Slaney,
141.C. BR. 540. (B.)

5. A tenant for life, professing to act in
pursuance of the 3 G. 3, c. 34 Cr.), s. 41,
made, in 1780, a lease for lives renewable for
ever, of twelve acres of ground, as a bleaching
green. The lease contained a covenant to
keep the bleaching green and buildings in
good and sufficient repair.

The tenant, having ceased to use the de-
mised lands as a bleaching green, permitted

 

them to be applied to other purposes. Held,
that he was not entitled to obtain a renewal
of the lease. — Bennett v. Richardson, 14 I. C.
R.1; 81. Jur.N. 8.61. (C.)

 

VI. Rent GENERALLY : TiTHus; ATTORNMENT:
INTERPLEADER.

6. Upon application of a tithe-owner, under
4 G. 4,¢. 99, s. 88, a receiver in a minor’s cause
was directed to pay one year’s arrear of tithe
composition, out of the proceeds of a distress
for rent made by him upon a tenant, who was
primarily liable to pay the composition. The
tenant should have notice of such an applica-
tion.— Hawkes v. Smith, 8. & Se. 327. (R.)

7. A tenant applied for a reference whether
a composition should be accepted for his
arrears of rent. The reference was granted
at his own expense, and upon other very strict
and special terms.—Fitz Gibbon v. Flynn, 8. &
Sc. 687. (R.)

8. Under a lease of 1695, of lands in Ireland,
for lives renewable for ever, reserving a rent
of £53 lawful money of England, and a fine
of half-a-year’s rent upon the fall of each life,
the rents and fines are payable in Irish cur-
rency.—Fitz Gerald v. Carew, 11. E. R. 346. (C.)

9, A tenant under the Court, for seven years
pending the cause, who has been dispossessed
by the purchaser’s injunction in the interval
between two gale days, must pay rent for the
period of his occupation after the last gale
day. It will be referred to the Remembrancer
to ascertain the amount of such rent, hav-
ing regard to the season of the year when the
broken gale happened, and to the nature of the
premises.—Jameson v. Farrer, 3 I. E. R. 513.
(E.E.)

10. In aredemption suit, after the coming in
of the defendant’s answer, the plaintiff entered
the common-side bar rule dismissing his bill,
and afterwards moved for the balance of the
sum lodged in Court, after payment thereout
of the defendant’s taxed costs. Held, that the
motion should be granted; and that the land-
lord might have proceeded at law for his rent,
pending the proceedings in the redemption
suit.— O’ Keefe v. Dennehy, 4 I. E.R. 323; FI.
& K. 404. (R.)

11. By articles of agreement for a lease the
reddendum was thus worded :—‘“ At the yearly
rént of £109. 14s. 4d., over and above all taxes,
charges, and impositions whatsoever, except
quit and crown rents.” Held, that the tenant
was not liable to tithe rentcharge.

Although a direct covenant by the tenant to
pay the tithe would be void by 2& 3 W.4,c.119,
s. 18, there is not anything to prevent a land-
lord from reserving, and a tenant from agree-
ing to pay, a larger rent in consideration of
the tithe —Davies v. Fitton, 4. I. E. R. 612; 2
Dr. & War. 225. (C.)

12. Lands were let under the Court for seven
years, pending a judgment creditor’s petition.
Before the end of the seven years, the lands
508 Rent,

were sold out of Court, with petitioner’s con-
sent, to pay their demands. The tenant gave
up possession to the purchaser. Held, that
he must pay rent for the interval during which
he occupied between the last gale day and
that on which he gave up possession.— Jackson
v.J.,51. E.R. 591. (E.E.)

1. When sequestrators seized under the
writ the profits of the lands before the second
gale of rent became due to the head landlord,
but the two gales were due before accounting,
Held, that the head landlord was entitled in
the first instance to be paid the two gales out
eae funds.—Stafford vy. S., 7 I. E. R. 197.

2. An agreement to reduce rent presumed
from the receipt of the reduced rent, which
was consistent with the recital in a settlement,
though during the greater part of the period
a tenant for life received the rent. The re-
duction was Held to extend to the entire
interest (an estate for lives, and a term of
years in remainder) and not to be confined to
the estate for lives—Knraght v. Haughton 8
J. E. R. 274. (C.)

3. A lessee for years having leased for his
own term, reserving a profit rent, with a clause
of re-entry on non-payment of it, subsequently
mortgaged the lands. Held, that the rent re-
served was not a rentcharge, but in the nature
of rent upon a demise ; and that the personal
representative of the mortgagor could recover
the lands by ejectment at Common Law, and
would be a trustee for the mortgagee; and,
therefore, that a receiver appointed over the
lands under the Mortgage Act was justified in
enforcing the rent.—Cremenv. Johnson, 9 I. E.
R. 143. (R.)

4, A devised a farm to B., who accepted the
devise, entered on the lands, and enjoyed
them. A. appointed B. executor. He acted
as such; brought into Court a fund, the pro-
perty of A.’s minor children; and passed an
account in the minor matter. A year’s rent
accrued due out of the premises after A.’s
death, and the landlord applied to be paid out
of the minor’s fund in Court. Held, that he
was entitled to be paid out of A.’s assets
lodged in Court.—Jn re Molloys Alinors, 5 I.
Jur. 88. (R.)

5. A lease for lives, with covenant for per-
petual renewal, was made by a lunatic to his
brother, in 1787. The lessee continued in un-
disturbed possession of the greater part of the
lands until his death in 1836. Several reports
were made in the meantime in the lunacy
matter, finding the sum due by the lessee for
rent, and that he was liable for the whole rent
reserved in the lease, although he was not in
possession of the whole of the lands; and
setting off the sum due against claims on the
lunatic’s estate. After the lessee’s death, his
son, the defendant, entered, and continued in
possession until 1842, when the lunatic died,
and the reversion in fee descended on the
defendant. Held, on a bill by a judgment

[LANDLORD AND TENANT.]

 

Tithes, §c.

creditor of the lessee, that the latter had not
acquired the fee-simple, or a right to renewal
by the length of possession and the proceed-
ings in the lunacy matter; and that the
defendant was not chargeable with the rents
received by him between 1836 and 1842, as
assets by descent.—Fulton v. Creagh, 9 I.E. R.
289; 3 Jon. & L. 329. (C.)

6. Since the Statute of Quia Emptores, there
cannot be a grantinf.f. A rent reserved on
a grant in fee, if accompanied by a power of
distress, is a rentcharge, and as such a bill
will lie for recovery of it.— Brady v. Fitzgerald,
11 I. E.R. 55. (R.)

7. The receiver in a minor matter paid rent
due up toa certain period in respect of lands,
held from year to year, which had been be-
queathed to the minor. The executor had
not assented to the bequest. J7e/d, that the
minor was liable to the subsequent rent only
to the extent of the profits received thereout.-—
Inve Fair, 13 I. E. R. 278, (R.)

8. The primary duty of a receiver over a
leasehold is, out of the sub-rents to discharge
the head rent. This he is bound to do with-
out an order of the Court for that purpose.

A receiver suffered the lease to be evicted
by ejectment for non-payment of rent. It
appeared that he had received from a sub-
tenant rent more than sufficient to pay the
head rent, and had applied it in paying other
demands, some of which he paid by order of
the Court. Held, that he must pay the land-
lord the arrears of head rent.—Balfe v. Blake,
11. C. R. 365. (C.)

9. The Court will review the exercise of the
Master’s discretion in reports under the 145th
& 146th G.O. It is the duty of the Court to
consider both the state of the property and
the interests of the parties.

Semble—The Court has not jurisdiction, in
opposition to the wish of the inheritor, to dis-
charge solvent tenants, by an ejectment for
non-payment of rent, from their covenants to
pay rent.—Autchins v. H., 11. C. R. 146; 31.
Jur. 232. (C.)

10. A lease for lives, reserving a rent and
duties, or asum of money in lieu of duties,
with a covenant for perpetual renewal upon
payment of a renewal fine, provided that if the
lessee should not within three months after
the fall of each life pay to the lessor or
his heirs, &c., the renewal fine, over and
above the rent, fees, and duties, and nominate
a new life, the lessor might refuse to renew.
A covenant by the lessee to pay fees and
duties, sums of money in lieu of duties, and
renewal fine; and that if it should happen that
the rent, fees, and duties, or other sums of
money thereinbefore mentioned to be paid as
aforesaid, should be unpaid for twenty-one
days after tle days on which the same ought
to be paid, the lessee, his heirs, &c., should lose
and forfeit to the lessor, &c., one shilling in
the pound in the name of a penalty, and so
proportionably thereafter for a greater or
Rent,

lesser time, whenever the same should be so
behind afterward, and a power of distress as
well for the rent, fees, and duties, and other
the sums of money to be paid for renewal, as
for the sums of money so to be lost and for-
feited; and aright of re-entry if the rent, fees,
and duties, or other the sums and penalties
above mentioned, or any of them, or any part
thereof, &c. One life having dropped many
years before without the renewal fine having
been paid—Held, on a petition for af. f. grant,
that the lessee was bound to pay the penalty
of one shilling in the pound on the renewal
fine before the grant should be executed.—
Ex parte Sheil, 1 I. C. R. 190. (R.)

1, When. tenants hold under leases of a
date prior to that of the appointment of a
receiver in a foreclosure suit over the lands
which they hold, the Court has not jurisdic-
tion, either to remit arrears, or to grant a
prospective abatement of the rents, which by
their leases the tenants are bound to pay, un-
less the owner of the lands and the plaintiff,
and other parties interested in the rents, con-
sent to such remission, or abatement, Other-
wise in the case of the estate of an infant or
lunatic, under the control of the Court.—Ha-
oon vy. Nagle, 11. C. R. 513; 31. Jur. 366.

)

2. A fund had been realised out of certain
lands, and carried to the separate credit of
a minor. The lands were evicted for non-
payment of rent. Held, that the landlord was
entitled to the fund on account of the arrear
of rent due to him.—M‘Kenna v. Connell, 2 I.
C. R. 594. (R.)

8. A lease for lives renewable for ever was
vested as to two-thirds in A., and one-third
in B., subject to an under lease for years, at a
profit rent. From 1779 to 1822 the head rent
was paid by the sub-tenant, who was in pos-
session, and two-thirds of the profit rent to
A., but it was not proved that anything was
paid to B. In 1822 the interest in the under-
lease was conveyed to the defendant, subject
to the entire rent reserved by it. He con-
tinued to pay the head rent and two-thirds of
the profit rent to A., and in 1832 he pur-
chased the reversion in fee. Held, on a bill
filed by the representative of B., to have the
benefit of a decree for a renewal in respect
of A.’s interest,—that no presumption of the
extinguishment of B.’s third of the profit rent,
or a conveyance of his third of the reversion,
arose,

That the retention of the profit rent gave
the defendant no title, under the Statute of
Limitations, as the third of the head rent
must be presumed to have been paid or re-
tained by him as the agent of those repre-
senting B.’s interest.—Hayes v. Woodley, 3 I.
C.R. 142. (C.)

4. A landlord, seized in fee of a reversion
on a lease for lives renewable for ever, is not
entitled to compensation for the loss of that
reversion, by the conversion of it into an
estate in the f. f. rent, under the Ren. Lease.

\

[LANDLORD AND TENANT.]

 

Tithes, &c. 509

Conv. Act, unless a case of special loss be
shown, to which alone the 5th sec. of the Act
is applicable.

An affidavit stating that the marketable
value of the grantee’s interest is increased,
without stating that of the grantor’s to be
diminished, is not sufficient to bring a case
within that section.

Ex parte Knox (31. C. R. 57) overruled.—
Inve Lawless, 41. C. R. 230. (P.C.)

5. When the landlord is seized in fee-simple
of the reversion, he is not entitled to compen-
sation under the Sth section of the Ren. Lease.
Con. Act, for the conversion of the estate in
the reversion into a fee-farm grant.

Ex parte Knox (supra, vol. 3, p. 57) over-
ruled.—Thackwell v. Jenkins, 4 I. C. R. 243; 7
I. Jur. 61. (C.)

6. The 4 & 5 W. 4, c. 22 (Apportionment of
Rents Act), does not apply to rents reserved
on tenancies from year to year without writ-
ing.

One seized in fee, subject to tenancies from
year to year, by a will, dated in 1840, devised
to A. for life, remainder over. A. lived for
some years, without determining the tenan-
cies. Held, that the rents were not appor-
tionable under the 23 & 24 G. 3, c. 46 (Ir.).

The testator devised the legal estate in
other lands, held in f. f., and for lives renew-
able, in trust, for A., for life, remainder over.
Held, that the rents reserved on the tenancies
from year to year, created by the testator, and
reserved by leases before the passing of the
4 & 5 W. 4, c. 22, were not apportionable
under that Act.

Knight v. Boughton (12 Beav. 312) doubted.
—AIn re Alexander, 4 I. C. R. 257. (R.)

7. So long as the relation of landlord and
tenant subsists as a legal relation, the land-
lord’s right to rent is not barred by non-pay-
ment, for however longa period. The Statute
of Limitations merely cuts off the recovery of
more than six years’ arrears—[Lord Cran-
worth.]—Archbold v. Scully. 7 I. Jur. N.S. 1.,
(H.L.); 9 H. Lds. Cas. 360.—[Revg. s.c. 9
LC. R.152. (C.A.); 81. C. R177. (C.)]

8. S., lessee of premises for 125 years, from
the 25th March 1782, by a lease dated the
21st July 1787, and which contained the
usual clauses of distress and vesting, demised
them to H. for 120 years, from the 25th March
then last past. Twenty-two years’ arrears of
rent accrued due to the representatives of 8.
Held, that although 8. had no reversion ex-
pectant on the determination of the lease, yet
the rent reserved by the lease was a conven-
tional rent; and that, therefore, the right of
the representatives of 8. to the rent during
the residue of the term was not barred by the
3&4W.4, c. 27,8. 2.—In re Turner’s Estate,
111..C. BR. 304. (L.E.C.)

9. A landlord who has evicted, for non-pay-
ment of rent, a leasehold over which a re-
ceiver had been appointed by the Court, is
entitled to have the arrears of rent paid out
of the funds in the receiver’s hands, received
510

out of the evicted lands.—Donovan v. Sweeny,
1.1. Jur. 165. (R.)—iliott v. E., 1 I. Jur. 165.
(E.E.); Sherlock v. Roe, 11. Jur.177. (R.)

 

VII. Or tae Lanpiorv’s Tite.

1. In cases between landlord and tenant a
triennial possession is not necessary to sustain
a possessory bill. Triennial possession is ne-
cessary only in cases of forcible possession or
detainer.—Lefroy v. Lee, H. & J..721. (E.E.)

2. A demise of D. excepted and reserved
thereout “all royalties, minerals, fullers’ earth,
clay for bricks, coal pits, quarries of lime,
slate, or stone, and bogs arid turf mosses what-
ever, together with all woods and underwoods,
by whatsoever name or names called or known,
then or thereafter standing, lying, or being
within or upon the premises, with ingress, &c.,
to dig for, fell, and carry away all and every
the before excepted premises; saving always,
and reserved out of this exeception to the
lessee, his heirs, and assigns, liberty to dig,
cut, and take lime, slate, or other stone, and
turf-moss, to be spent and employed on the
premises, and not elsewhere ; and the same not
to be cut*or digged without the order and ap-
pointment of the lessor, his heirs, and assigns.”
Held, that the soil of the bogs and turf-mosses
is excepted, and remains vested in the lessor,
his heirs, and assigns.—Boyle v. Olpherts, 4 I.
E. R. 241; Long. & T. 320. (E.E.)

8. Unless under special circumstances, a
lessee for lives will be restrained from com-
mitting waste.

A mere demise of bog, as such, will not give
the lessee a right to cut turf for sale, partic-
larly when the demise includes property other
than the bog. If bog only be demised, and
can be used only to be cut for sale; or if,
at the date of the demise, it was used by
cutting it for sale, the lessee may cut turf for
sale.

The Court will not refuse to restrain waste
which does not necessarily and permanently
improve the estate, on the mere ground that
the party has done other acts beneficial to the
estate. An injunction to restrain the cutting
of turf will not be refused, because the tenant
has converted the cut-out bog into arable
land.

Quere — Will the Court restrain acts of
meliorating waste?

Tenant in fee, in possession of lands, con-
veyed them, and all bogs thereon, to a pur-
chaser who, by deed of even date, demised the
lands to the vendor, and his heirs, for lives
renewable for ever, to hold “in the same
manner as he now holds and enjoys the same,”
at a rent equal to £6 per cent. on the price.
The lease contained the ordinary powers and
covenants. Before the conveyance, the vendor
had, in a few instances, cut turf for sale. The
Court was of opinion that there had not been
any such general dedication of the bog to cut-
ting for mere purposes of sale as converted its
nature into that of an open mine. Held, that
the lessee was not entitled to cut turf for
sale.— Coppinger v. Gubbins, 9 I. E. R. 804: 3
Jon. & L. 397. (C.)

 

[LANDLORD’S TITLE.—LEASES.]

LAPSE.

See Inrerest In Property—Lecacy, V—
Lenetu or Time—Portion—Trost, VII.

 

LAW.

— Evidence at. See Practicr, Evipexce, 9.
— Matters of. See Jurispiction, V.

 

LAWS.
— Foreign. See Fornten Laws, &c.

 

LEASES.
— Assignees’ election to take. See BANKRUPTCY,
x

— Ecclesiastical. See EccuestasTicaL PERsons,

II.

— For Life. See Estates, II.

— For Years. See Esrats, IV.

— At Will. See Estate, IV.

— Pour autre vie. See Estate, V.

— Power to grant. See Power, IV.

— Lffect of Devises on Leasehold. See Wii,
XV—See Cuaniry, III, 4—Covenant—
Derps, Il—LanpLorp anp TENANT,
passim—Statvte, II, 30.

 

I, Vauipiry or.
1. Generally—By and to whom they are
good.
2. When connected with a loan of money.
. Duration oF.
Ill. Form or—Usvat Covenants—REForR-
MATION OF. (See COVENANT).
IV. SurrenpDeR or LEAseE.
. ASSIGNMENT OF— UNDER LeEasE —
Ricuts anp LiaBILiTiEs oF AssIG-
NEES. See LANDLORD AND TENANT,

. For Lives or Lire.

VII. Acreement ror Leasr—Irts Srrciric
PERFORMANCE. See AGREEMENT AND
Contract, VIII.

VIII. Renewar. SceLanpLoRD AND TENANT,
1. Generally—For whose benefit it
enures: Grafts.
. Perpetual Renewal.
. Fines on, and Expenses of Re-
newal—A pportionment there-

jb

of.

. Right to : how lost or forfeited—
Relief against forfeiture.

. Perpetuity under the Renewable
Leasehold Conversion Act.
See Lanpitorp & TENANT,

a4,

~

oO

 

I. 1. General Validity of Leases—By and to
whom they are good.

4. A., seized of an undivided moiety of
lands held under a lease for lives renewable
for ever, in 1775 settles the same to the use
of himself for life, remainder to his first and
other sons, reserving to himself a power.of
General

leasing. He afterwards purchases the other
moiety, and makes a lease of the entire, not
warranted by his power, and covenants with
them for quiet enjoyment, &c. On the mar-
riage of his eldest son, he conveys the entire
to trustees to the use of himself for life, re-
mainder to his son for life, remainders to the
sons of his son as the son should appoint.
Held, that the son of A.’s son could not im-
peach the lease as to the undivided moiety in
the settlement of 1775, as being contrary to
the leasing power.—Steele v. Mitchell, 3 I. E.
R.1;2 Dr. & Wal. 268. (C.)

1. A trustee (with an annual salary of £100)
appointed, by will, to manage estates, took a
lease at a very low rent, and in consideration
of faithful services, from the tenant for life ;
but it was made in excess of his leasing power.
Held—in favour of the remaindermen,—frau-
dulent and voidable in the hands of apurchaser
for value, who had constructive notice of its
nature.—Ker v. Lord Dungannon, 4 I. E.R.
343; 1 Dr. & War. 509; 1 Con. & L. 335. (C.)

2. By articles of agreement for a lease, the
reddendum was expressed thus: “at the yearly
rent of £109. 14s. 4d. over and above all taxes,
charges, and impositions whatsoever, except
quit and crown rents.” Held—having regard
to the 2&3W. 4, c. 119, s. 13,—that the tenant
was not liable to the tithes.

Although a direct covenant by the tenant
to pay the tithe would be void by 2 & 3 W. 4,
c. 119, s. 18, yet there was nothing to prevent
a landlord from reserving, and a tenant from
agreeing to pay a larger rent in consideration
of the tithe.—Davies v. Fitton, 4 I. E. R. 612 ;
2 Dr. & War. 225. (C.)

3. An Archbishop of C. granted a right of
pasture over part of his lands to the Corpora-
tion of C., for the use of the Corporation and
inhabitants of C. Held, that the Corporation
was so seized in trust for the town of C., and
that therefore a lease for 99 years, made by
the Corporation at a gross undervalue, should
be set aside; that the trusts would have at-
tached, even though the absolute ownership
might have been acquired by usurpation ;
that the lessee was entitled to an issue respect-
ing the identity of the lands in possession
with those, or part of those, over which the
right of pasture had been granted.—Att.- Gen.
v. Corporation of Cashel, 3 Dr. & War. 294; 2
Con. & L.1. (C.)

4, An agent may take a lease from his prin-
cipal, but must always be prepared to prove
that full information was imparted to the
principal, and that the contract was entered
into with perfect good faith.—Molony v. Ker-
nan, 2 Dr. & War. 31. (C.)

5. A., agent over a property held by four
sisters as tenants in common, had a power of
attorney from three of them to make leases,
and, when about to leave the country under
very suspicious circumstances, executed, as
by a power of attorney from the four sisters,
a lease of part of the property to B., his under-

[LEASES.]

 

Validity of. 511
agent. There was some evidence of under-
value in the rent reserved, and covenants
were omitted, which B. had suggested as
proper in other leases of the same lands to
other tenants ; the lease was, at the suit of the
four sisters, decreed to be set aside.
Semble—That from the deliciency of the
agent’s act, he having no authority under a
power of attorney from three, to bind the
four, the lease would have been set aside, even
if there were no other grounds of impeach-
ment.— Rossiter vy. Walsh, 2 Con. & L. 562. (C.)

6. Tenant for life made a lease exceeding
his power, with a covenant for quiet enjoy-
ment for himself and those claiming under
him; and he and the remainderman subse-
quently conveyed the estate in fee subject to
the tenants’ leases. Held, that this did not
amount to a confirmation of the lease by the
remainderman, there being no contract be-
tween him and the tenants, nor any stipulation
between the tenant for life and the remain-
derman, that the latter should not impeach
the lease. With respect to the general rule
of equity, nothing can be clearer than that
the plaintiff must show a title to the property
which he claims, and the relief in relation to
it which he seeks in this Court; and there-
fore, as to the lease of 1800, which they set

‘up as the foundation of their claim, the plain-

tiffs must show a title to institute this suit ;
and further, as the plaintiffs in equity must
have relief according to the title which they
make, and as every link in the chain of that
title may become traversable in this Court as
in a Court of Law, the title must in this
Court be fully deduced. The rule at law on
this point has been long settled, that a plain-
tiff must allege his own title particularly ; but
may state that of the defendant generally.
The rule in this Court is the same.—[Black-
burne, M.R.]—Brangan v. Gorges, 7 I. E. R.
295. (R.)

7. A., having a rentcharge secured by aterm
and judgment, in July 1841, filed a bill pray-
ing an account of prior and contemporaneous
incumbrances, andasale. There was a decree
to account, directing an account of all incum-
brances, and a final decree directing a sale of
the inheritance. Subsequently to the grant
of the rentcharge the grantor executed two
leases, and after them two mortgages. A.
filed asupplemental bill impeaching the leases,
and charging that if the estate was sold sub-
ject to the leases, it would be insufficient to
pay the incumbrances. Held, that the final
decree being erroneous in directing a sale of
the inheritance, the Court would not, in this
suit, correct the error; that A. was not en-
titled to set aside the leases unless they were
prejudicial to his own security; and it was
referred to the Master to inquire whether
they were so.— Stamer v. Nesbitt, 9 I. E. R. 96;
3 Jon. & L. 447. (C.)

8. D., tenant for life, purporting to exercise
a leasing power, made a lease in 1767, cove-
nanting for quiet enjoyment against the acts
of all claiming through him. In 1791 and
512 General

1792,D. and his son, tenant ‘in tail in remain-
der, joined in suffering recoveries, and re-
settled the estates subject to then existing
leases, D.’s son having secured to him an
annuity of £2000 and £30,000 for his debts.
D. died in 1799,-and the estates were subse-
quently again re-settled by his son and the
then remainderman. In 1848 the lease was
impeached as an excess of the power. Held,
that, on the doctrine of Taylor v. Stibbert,
2 Ves. jun., 437, and Stoughton v. Crosbie, 5 I.
E. R. 451, the lease was then valid, whether
originally void or not.

The doctrine of these cases does not clash
with the principle of Garrard v. Lauderdale,
2R. & Myl. 451, preventing a stranger from
taking advantage of a creditor’s deed, or the
like, to which he is not a party. The two
classes of authorities distinguished.

The owners of the estate being obliged
under the circumstances to raise the objec-
tions to the lease in Equity—Semble, the mere
lapse of time and acquiescence from 1767 to
1848 would bar them from relief.— Marquis of
Donegal v. Greg, 13 I.E. R.12. (C.)

1. An elegit creditor in possession made a
lease of the extended lands for twenty-one
years, provided his estate should last so long.
Before the debt was paid off, or the years had
expired, the lands were sold under a decree in
a creditor’s suit, and conveyed to a purchaser.
The conveyance was executed by the adminis-
trator of the e/egit creditor. e/d, that though
the estate by elegit was merged by the convey-
ance, as between the creditor and the pur-
chaser, it had continuance, as between the
purchaser and the lessee, to support the lease
which still existed at Law; but that the lease
in Equity was at an end.

Semble—The Court would enjoin the lessee
from enforcing his legal title underit. Nature
of the estate by e/egit, and modes by which it
may be determined.— Wvlkiams v. Morris, 13
I. E.R. 147. (R.)

2. A lease, alleged to have been made at an
undervalue, and to commence in futuro, will
not be upheld by the Commissioners, who will
allow a wide latitude to one permitted by his
creditor to continue in possession of his pro-
perty ; and will not scrutinise too closely any
bona fide agricultural leases made by him.—
In re the Earl of Aldborough’s Estate, 3 1. Jur.
165. (1E.C.)

3. A., seized in fee, in right of his wife, of
lands subject to a lease for lives and years,
covenanted to levy fines thereof to the use of
A. for life, remainder to the use of his wife;
after their decease to the use of their children,
as A. and B. should by deed or deeds jointly
appoint; in default of appointment, to the
use of such children as should be living at the
death of A. and his wife, or the survivor of
them, equally. The deed contained a power
for A. and B. to raise by mortgage or other-
wise a sum not exceeding £2000 for the use of
A.: and a power for A. and his wife, from
time to time, under their hand and seal, to
make any lease or leases of all or any part of
the lands, for any term or number of years,

[LEASES.]

 

Validity of

or for the term of two or three lives, with or
without a covenant for perpetual renewal.
Fines were levied in pursuance of the cove-
nant. The lives in the original lease having
expired, and while there were 28 years of the
term yet unexpired, A. and his wife, in consi-
deration of £1100, executed to the owner of
the original lease, a lease of the lands already
held by him under the former lease, “in as.
ample a manner, for three lives, and the life
and lives of each other person or persons as
should from time to time be added thereto.”
The first payment of rent to be on such of said
days “as should first happen after the deter-
mination of the said term of 28 years.” The
lease contained u covenant for perpetual re-
newal, on payment of one shilling as a renewal
fine. A. and his wife being dead, and one of
the lives in the lease of 1838 having also died,
the plaintiff demanded a renewal, which being
refused, this bill was filed. Held, that the
limitations in the settlement of 1830 in favour
of the children were fraudulent and void as
against the plaintiff; and that the lease of
1838 was warranted by the provisions of the
settlement of 1830.—Greene v. O’ Kearney, 4 I.
Jur. 345. (C.)

4. The confirmation of a lease by a married
woman, though incapable of registry, being an
act in pais, relates back to the voidable lease
of the husband, and sets it up. — Gray v.
Strangman, 51. Jur. 113. (C.)

5. By a lease, A. purported to demise to B. a
house and demesne, for three lives and twenty-
one years, at a rent. 3B.’s counterpart was
executed by him alone, and no evidence was
given of the execution of the lease by the les-
sor. A deed, dated on the following day, and
which was executed by B. alone, recited that
by indenture of lease, bearing date, &c., made
between A. of the first part, and B. of the
other part, A., for the considerations therein
mentioned, demised to B. the house and de-
mesne; and that it had been agreed that B.
should, in order to secure the payment of the
rent reserved by the lease, give a rentcharge
on certain lands to A., her executors, &c.,
during the continuance of the lease; and B.,
in consideration of the recited lease, granted
a rentcharge for the three c. g. v. of the lease, *
and thirty-one years; with the usual clause of
distress and entry; and a clause that, at the
expiration or other sooner determination of
the lease, and payment of all arrears of rent-
charge, the rentcharge should cease and be
void. B. entered under the lease, and re-
mained in possession for many years, until
ultimately the lease was evicted for non-pay-
ment of rent. Held, that the grant of the
rentcharge was not void by reason of the
lease not having been executed by A., as B.
was estopped by the recital in the grant from
denying its execution.

A recital in a deed of « particular fact is
binding on one who has executed the deed,
although it was not executed by him who re-
lies on the estoppel.

Quere—Whether an action for breach of
a covenant running with the land, can be sus-
Validity of

tained, where the lessor has not executed the
lease, though the lessee has entered into re-
ceipt of the profits of the property demised?—
Hungerford y. Becher, 5 1.C. R.417. CR.)

1. A., tenant for life, with a leasing power,
remainder to B., in tail, executed a disentail-
ing deed, whereby they conveyed the estate to
the use of A. for life, remainder te the use of
B., in fee. Held, that A.’s leasing power was
not extinguished.

A remainderman is not bound by a con-
tract for a lease with the tenant for life, un-
less it be binding within the provisions of the
Statute of Frauds, and within the power of
the tenant for life. He is not affected by
part performance by the tenant for life. A
written proposal was sent to a tenant for life,
for a lease for three lives, or thirty-one years,
atarent. He replied that he had not power
to execute such a lease, but, “If you choose
to take the lease in the usual way, I will
allow you £20 to get up a cottage, and a lease
for your own life.” Held, that as the answer
was not a simple acceptance, but introduced
new terms, the proposal and answer were not
a sufficient agreement within the Statute of
Frauds.—O’Fay v. Burke, 8 I. C. R. 225. (R.)
—[Affirmed, zbed, 511. (C.A.)]

2. A. having made a lease in 1852, of
part of the lands of B., by a deed, pur-
porting to be for value, in 1853, conveyed
the inheritance in remainder expectant on
his own decease to his son F. This deed was
registered two days after. The lease was not
registered until 1854. F. had notice of the
lease at the time of the execution of the deed
of 1853. By deed, in 1857, F. mortgaged his
reversion to L. who had not notice of the
lease. Held, that whether the deed of 1853
was a voluntary deed, or a deed for value,
L.’s mortgage was entitled to priority over
the lease of 1852, and that his title was not
affected by the intermediate registration of the
lease.

That, as it appeared on the evidence before
the Court that the lease was bona fide, for a
proper period, and at u fair rent, and as the
sale would not be materially affected by it, the
sale should be made subject to it; and that it
should not be set aside for a slight difference
between the rent and the value.

If the Court is constrained to set aside a
bona fide lease, it will reserve to the lessee the
right to apply for compensation, as against any
interest remaining in the lessor—Jn re Flood’s
Estate, 13 I. C. R. 312. (L.E.C.)

8. A reversionary lease, voluntarily granted
partly for past services, which had been re-
munerated otherwise, and partly for an inade-
quate rent and a small fine, set aside; no
confidential relation between the parties hav-
ing been proved. — Wyse v. Lambert, 16 I. C.
R. 378. (R.)

 

I. 2. Validity of Lease when connected with a
Loan by the Lessee.

4. A lease made to a person standing in the
position of guardian, and, at the same time,

[LEASE]

 

 

Form of. 513

1

filling the characters of agent, receiver, and
tenant, directed to be set aside upon the equity
arising out of these relations, and upon the
grounds of public policy, and with costs; not-
withstanding that a period of eleven years
had elapsed, after the granting of the lease,
before the institution of the suit; but the
account was limited 'to the filing of the bill by
reason of the delay.—Jfulhallen v. Marum, 3 Dr.
& War. 317. (C.)

5. G., seized of lands, borrowed various
sums from S. On the occasion of each of the
loans, G. gave to S. possession of a piece of
land; and a memorandum was executed that
S. should hold the land rent free until the
loan was repaid. Two of the memoranda
contained a provision that G. should not pay
interest for the loan while 8. retained the
land. Held, that the transaction amounted to
a security upon land, within the 2 & 3 Vic., c. 37,
and that the annual value of the land, beyond
legal interest, should be applied in reduction
of the principal advanced to G.— Gore v.
Spotten, 71. C. R. 508. (C.)

IL. Duration or.

 

III. Form or Lease: usuat CovENANTS:
Rerormation oF. See CovENANT.

6. A lease made in pursuance of « verbal
agreement, and which included, by mistake,
two fields more than the lessor intended to
demise, or the lessees bargained for, was de-
creed to be amended as to the overplus. Parol
evidence, suported by written documents and
acts of the parties, was admitted to prove the
mistake. — Mortimer v. Shortall, 2 Dr. & War.
363; 1 Con. & L. 417. , (C.)

7. A lessee covenanted not to do a certain
act, “‘under the penalty of double the yearly
rent herein reserved, same to be recovered by
distress, or otherwise, the same as the said
yearly rent.” Held, a case of liquidated da-
mages, not of penalty.— Gerrard v. O’Reully, 2
Dr. & War. 414; 2 Con. & L. 414. (C.)

8. A tenant for lives renewable for ever
having demised for years part of the lands
upon which there was at the time an open
quarry (which he was in the habit of working
for sale), without any reservation or exception
in sub-lease — Held, the sub-tenant was not
entitled to work the quarry for sale, and that
his landlord had the right to enjoin him.
There is no analogy between open quarries
and mines.—Mansfield v. Crawford, 9 I. E. R.
271. (R.)

9. Lessees for lives renewable for ever,
without any special circumstances, will be re-
strained from waste.

A demise of bog, eo nomine, along with other
lands, does not authorise the lessee to cut
turf for sale. Secus, where the bog has been
demised alone, or has been always cut for sale.

Waste will be restrained in Chancery,
although the act done may lead tothe improve-

63
514 Its Form.

ment of the land, if it immediately occasions
any damage to the inheritance.

In execution of an arrangement for paying
off incumbrances, A., being owner in fee, con-
veyed the fee-simple to B., who re-demised for
lives renewable for ever to A., at a rent equal
to £6 per cent. on his purchase-money, to
hold in the same manner as A. then held
and enjoyed the same. The lease contained
the common covenants, including one to de-
liver up the premises in repair, except casual-
ties by fire. Held, that A. did not retain the
rights of an owner in fee subject to the rent,
but was restrainable from committing waste.--
Coppinger v. Gubbins, 9 I. E. R. 804; 3 Jon. &
L. 397. (C.)

1. In a lease for lives renewable for ever,
made in 1786, of lands, excepting mines, &c.,
it was agreed that the landlord might enter,
search for, and work mines ; and further, that
it should be lawful for him, his heirs, &c., at
his election, to hold and enjoy, by separate
and distinct bounds, 200 or 300 acres of the
demised lands (the mansion-house and or-
chards excepted) most contiguous tothe mines,
in case any should be found, making a propor-
tional abatement in the rent to the lessor, his
heirs, &c. A‘ specific performance was decreed
at the suit of the landlord, a Court of Law—
[Reported 6 I. L. R. 351.J—having decided
in an ejectment for the 300 acres, that this
was a covenant, not a condition. Sed quere—
If it is not a condition ?

ITeld, that the landlord was entitled to re-
sume the entire 300 acres, and for the entire
of the lessor’s interest, whether the mines
could be profitably worked or not; and al-
though the real object might have been to
get the land itself, the discovery of the mine
being bona fide made, and the working not
merely colourable.

Semble—He was bound to take 300 contigu-
ous acres at once, and could not resume them
in separate parcels. :

Semble—He was entitled to resume them
without making any compensation for im-
provements made by the tenant.—Croker vy.
Orpen, 9 I. E. R. 563; 3 Jon. & L. 689. (C.)

2. A power required that in leases of pre-
mises then in lease, the rent reserved should
not be less than the rent then payable out of
the same premises. A lease of 1767 had
demised quays and other premises, with liberty
to receive quayage not exceeding two pence
perton. A lease of 1827, made under the
power, demised the quays and premises de-
scribed as in the lease of 1767, together with
the wharfage and quayage of all ships and
vessels resorting to the quays and docks (with:
out any limitation of the rate per ton), ata
rent of the same amount as was reserved in
1767; to which it was objected that the same
rent was not reserved, as the renewal included
additional premises. eld, not a valid objec-
tion, as the rent was not reserved out of the
quayage, and by the removal of the restriction
the lessor passed nothing new.

By a lease of 1831, reciting that the unlimi-
ted quayage was included by mistake in that

[LEASE.]

 

Covenants in.

of 1827, the premises, as originally leased,
were demised at the same rent and fine as in
the lease of 1827, and the unlimited quayaee
at a small additional fine and rent. Held,
that the lessee could rely on the lease of 1831,
which would have been valid if made in 1827,
when the principal was paid, though perhaps
impeachable if originating in 1831.

The nature of’a right of quayage or wharf-
age considered.—Marquis of Donegal v. Greg,
13 1L.E.R.12. (C.)

3. Alease made under a power requiring the
rent to be reserved payable during the con-
tinuance of the lease, was dated in June 1827,
and reserved the first half year’s rent on the
1st May then next. Held, that the lease was
not thereby avoided, though no rent appeared
payable from June to Nov. 1827 ; especially as
the objection was not*one mentioned in the
bill, for if mentioned the defendant might
have made acase to explain it, or be relieved
against it—Marquis of Donegal vy. Greg, 13 I.
E.R. 12. (C.)

4, Ina fee-farm grant under the Ren. Lease.
Con. Act, the Court will frame the covenants
so as not to vary the existing rights and
liabilities of the parties. It was alleged that
since a former renewal there had been a
breach of a covenant to keep the premises in
repair; the covenant inserted in the f. f. grant
was to keep in repair the premises as they
were at the time of that renewal. — Lx parte
Waldron, 11. C. R. 269. (R.)

5. A. was seized of K. for life, remainder to
his son B. for life, remainder to C. his grand-
son,infee. A., B., and C. jointly demised part
of K. and mills thereon, with the rights, &c.,
grist, toll, &c., usually paid by tenants of K., at
the rate of one-sixteenth of the corn ground,
as toll for grinding; reserving all royalties to
A., his heirs and assigns, with liberty to A., B.,
and C., and their heirs and assigns, according
to their interests, to enter to take the royalties
at the pleasure of A., his heirs and assigns ;
habendum for three lives, with a covenant for
perpetual renewal. The reddendum reserved
the rent, as to part, to A., B., and C., accord-
ing to their respective interests ; and as to the
residue to A., his heirs and assigns ; with a co-
venant to pay A., B., and C.. their heirs and
assigns, according to their interests. There
were covenants by the lessees and A. as to
the tenants grinding at the mills; a covenant
for perpetual renewal by A., for himself, his
heirs and assigns, and covenants by A., B., and
C. for title, &c. Apart from the profits from
the mills, the lands proved inadequate to meet
the rent. After the deaths of A. and B.,a
bill for a renewal was filed against C. Held,
that C. was not bound to enter into the cove-
nants as to mill duties contained in the ori-
ginal lease on the part of A., his heirs and
assigns; but must enter into all into which he,
by name, had entered in the original lease.

Semble—That if the joint demise had not
been as well for all future lives, as for the
original lives in the lease, C. would not have
been bound by the covenant on the part of
Its Form.

A., his heirs and assigns, to renew.— Vance v.
Earl of Ranfurly, 11. C. R. 321; 11. Jur. 284.
(C.)

1, A. demised to B. the lands of K., reserv-
ing to himself “all timber trees, or trees likely
to be timber, then growing or which thereafter
should grow or be on the demised premises.”
B. planted trees, and registered them pursuant
to the 23 & 24 G.3., s.39 (Zr). The lessee subse-
quently mortgaged the premises; the mort-
gagee became bankrupt; and the respondents,
having purchased in the bankruptcy matter, cut
and soldthetrees. ‘eld, that whatever property
in the trees the respondents, as assignees of
the lessee, might be entitled to, the right of
property in the petitioner to these trees was
taken away, notwithstanding the reservation
in the lease.—Standish v. Murphy, 41. Jur. 297.

(C.)

2. A lease, by the owner of tithe-free lands,
demising “both land and tithe,” is not a con-
veyance by the owner of the land and tithe
within the 1 & 2 Vic., c. 109, s. 82; butisa
mode of leasing the land tithe-free.— Denny v.
The Duke of Devonshire, 5 1. Jur. 357. (C.)

3. By a lease for lives renewable for ever,
and made in 1775, A., seized in fee-simple, de-
mised to B. lands at arent, and at a peppercorn
renewal fine; and, in 1776, by another lease,
reciting that there had been an informality in
the lease of 1775, which the parties were de-
sirous to correct, A., for the considerations,
and upon the terms mentioned in the lease of
1775, demised to B. the lands, “and all manner
of mines and minerals of coal, lead, iron, tin,
and other mines upon said lands; and bog
timber, forest trees, and young saplings of oak,
ash, yew, and elm, and all timber and other
trees; the benefit of fishing, fowling, hunting,
and hawking on the premises always excepted
and reserved out of the said demise.” This
lease also contained a covenant that B. should
be at liberty to cut all such trees as he him-
self should plant. The estate of A. in the
lands subject to this lease having devolved to
the respondent, and the interest in the lease
to Y.: the former, in 1832, by indenture of
lease reciting that it was made in pursuance
of the covenant for perpetual renewal con-
tained in thé lease of 1776, demised to the
latter “all the said lands (all manner of mines
and minerals of coal, lead, iron, tin, and other
mines whatsoever upon said lands; and bog
timber, forest trees, and young saplings of
oak, ash, yew, and elm, and all timber and
other trees; the benefit of fishing, fowling,
hunting, and hawking on the said premises
always excepted and reserved),” omitting the
word “and,” which appeared at the commence-
ment of the exception in the lease of 1776.
Held, that under the lease of 1776 the only
rights reserved to the lessor were the benefit
of fishing, fowling, &c., and that the mines
and minerals passed under the demise.

That the lease of 1832, purporting to be a
renewal of the lease of 1776, and being made
in pursuance of the covenant for renewal
contained therein, but containing a clause at

[LEASE,]

 

Covenants in. 515

variance with the corresponding clause in that
lease, this Court would order the lease of 1832
to be made conformable to the lease of 1776.
—Sligo v. O’Donel, 71. Jur. 178. (C.)

4. A lease for lives, renewable for ever,
contained a covenant on the part of the lessee.
his heirs and assigns, that he and they should
not alien the lands (two denominations), with-
out the consent of the landlord. The rever-
sioner took a conveyance of one denomination,
and applied for a f. f. grant of it, under the
Ren. Lease. Con. Act. Held, that as the cove-
nant against alienation expressly applied only
to the whole of the lands, it could not be
considered as “ subsisting” in reference to the
second denomination, within the meaning of
the 10th sec. of the Act.

Per the Lord Chancellor:—A covenant
against alienation, without license from the
landlord, is repugnant to the estate intended
to be created by the Act, and therefore should
not, in any case, be inserted in a grant under
it.—In re Quin, 8 I. C. R. 578; Dr. Rep. temp.
Napier, 446. (C.A.)

5. The owner of the manor of B. demised
lands, part of the manor, for along term, with
a covenant to build houses thereon, and to
make an area round such houses. The houses
were built and an area made, according to the
terms of the lease. The lessee subsequently
subdemised one of the houses, by an instru-
ment which did not recite, nor refer td, the
original lease, nor contain any covenant re-
specting the area, but did contain a covenant
to do suit and service to Courts of the Manor
of B. The sub-lessee, more than twenty years
before the commencement of the suit, built
over a portion of the area, and subsequently
assigned his sub-lessee to the respondent.
Held, that the covenant to make an area im-
posed a continuing obligation to keep the
area open.

That the covenant to do service in the Manor
Court was sufficient to have put the sub-lessee
and his assignee on inquiry, and that the as-
signee was bound to carry out the terms of the
original lease. :

That, upon the portion covered in before his
assignment, he was entitled to erect a porch.
Herbert v. Maclean, 12 I. C. R. 84. (C.)

6. A lease contained a covenant by the
lessee to plant, with proper forest trees, a
portion of the demised premises, and to re-
plant such parts thereof whereon trees then
stood, or were planted, and which trees had
been injured or destroyed; and to repair and
keep in repair the fence or fences whereby the
planted portion of the lands were then, or
might thereafter be enclosed, so as at all
times during the term to preserve and keep
the trees which then were, or should there-
after be, growing or planted as aforesaid, from
all waste, spoil, damage, or destruction what-
soever. Held, that the covenant was too
uncertain and indefinite to be carried into
specific execution by the Court. — Bernard y.
Meara, 12 I. C. R. 889; 7 I. Jur. N.S. 333.

R)
516 Form and

1. Demise of a part of the lands of L., to-
gether with the bog in possession of the lessee,
situate in the bogs of L. and R. The lessee
was in possession of part of the bog of R., in
which he had cut turf for his own consump-
tion, but not for sale. ;

Held, that the lease did not confer a right
to cut turf for sale on the bog of R.—fowler
y. Blakely, 13 I. C. R. 58. (R.)

2. In 1782, a lessee for lives renewable for
ever demised the lands for the same lives;
and covenanted that, on the death of any
of the lives, he would, within six calendar
months, add and renew with the landlord of
the lands the life of some other person; which
life should, before the renewal, be agreed to
and approved of by the sub-lessee, his heirs,
or assigns; that, as soon as conveniently could
be, timely notice of the renewal should be
given by the lessee, his heirs and assigns, to
the sub-lessee, his heirs and assigns. It was
further covenanted that then the sub-lessee
should, within one calendar month after such
renewal and notice, pay to the lessee, his
heirs and assigns, a renewal fine over and
above the rent and all arrears; and that,
upon such payment being made, the lessee,
his heirs, &c., should, immediately after, add
and renew the same life to the term of the
lease that he or they so renewed with the
head landlord ; and in like manner, from time
to time, successively for ever, &c. The sub-
lessee covenanted to pay the rent and re-
newal fine within one month after the renewal
by the head landlord. In 1820, there were
made of the lease and sub-lease renewals, the
Jast life in which died in 1837. In 1840, a
further renewal of the head lease was made ;
but no notice of the nomination of the new
lives, or of the renewal was then given to the
sub-lessee’s representative. In 1855, the re-
spondent purchased the lessee’s interest, and
shortly afterwards informed the petitioner, in
whom the sub-lessee’s interest was vested, of
his purchase. Since 1840 no renewal of the
sub-lease had been made. On a petition for
a f. f. grant—Held, that no septennial fines
were payable by the sub-lessee.

That interest on the fines payable by the
sub-lessee was to be calculated from the time
when he received notice of the renewal of the
head lease.

The principle on which septennial fines are
payable stated.

A purchaser from a lessor, who is bound to
grant a renewal, is entitled to those renewal
fines only which accrued after his purchase.—
De Vaux vy. Mara, 151. C. R. 16. (R.)

8. In a deed, words of limitation are neces-
sary to pass the entire estate in a lease for
lives renewable for ever, whether the estate
conveyed be legal or equitable Brennan v.
Boyne, 15 1. C. R. 189. (R.)—[See, on appeal,
161. C. R. 87. (C.A.)]

4. Demise of the whole territory or pre-
cinct of land commonly called A., containing
in itself, by estimation, thirty-two poles of
land, more or less; the whole territory or pre-

[LEASE.]

 

Surrender of.

cinct of land commonly called B., containing
in itself, by estimation, six poles of land,
more or less; the whole territory or precinct
of land commonly called C., containing in
itself, by estimation, two poles of land, either
more or less, being in all forty poles of land,
save and except two poles of G., situate, lying,
and being in the manor of A. Held, a good
exception.—Lilllis v. The Lord Primate, 15 I. C.
R. 237. (R.)

5. Demise of the whole territory or pre-
cinct of land commonly called A., containing,
&c.; the whole, &.,... . called B., contain-
ing, &c.; the whole, &c.,.... called C., being
in all forty poles of land, save and except two
poles of G., situate, lying, and being in the
manor of A. aforesaid. Held, that the excep-
tion was good.

X., tenant of G. and other lands, under
a church lease, demised G. to Y. for twenty-
one years, with az. g. covenant for renewal ;
and subsequently renewed his lease. This
renewal, by the conveyancer’s mistake, and
contrary to the intentions of the parties, who
thenceforward acted as if G. had been omit-
ted therefrom, included G. Held, that Y.
could not maintain against X. a suit for spe-
cific performance of the covenant to renew.—
Ellis v. The Lord Primate, 16 I. C. R. 184.
(C.A.)

 

IV. Surrenper or Lease.

[Provision touching the surrender of leases
belonging to bankrupts or insolvents, 20 & 21
Vic., c. 60, s. 271.]

6. A lessor made a lease, and died, having
devised the reversion to his widow for life, or
until marriage. She granted a new lease to
the lessee, for a term exceeding her interest,
at a reduced rent, and married. Held,’that
the parties entitled in remainder could not en-
force the original rent, as this Court has no
jurisdiction to set up a lease surrendered by
operation of law.

The bill in this cause sustained, on the
ground of the multiplicity of actions that
would be required at law, and because the
pd aden themselves had complicated the
title.

Quere—When a bill contains statements
made merely to prevent a demurrer for mul-
tifariousness, whether the objection may be
taken at the hearing, if the statements are
unproved ?—Nixon v. Robinson, 7 I. E. R. 520;
2Jon.&L.4. (C.)

7. Semble—A surrender of part of the de-
mised lands will destroy a power of entry for
non-payment of the rent reserved by the
lease.—Mortimer v. Shortall, 2 Dr. & War.
363; 1 Con. & L. 417. (C.)

8. R. was entitled to one-half of the equi-
table interest, and, by descent ex parte ma-
terna, to one-sixth of the legal estate in lands
held under a lease of 1740, for lives renewable
for ever. In 1766, X. being the sole sur-
viving life, and R., being a minor, R.’s father,
Assignment of.

C., having no interest in the lease, procured
a renewal of it to himself, for the lives of X.
and two others, with a covenant for perpe-
tual renewal. On C.’s death, the legal estate
therein descended upon his heir, R. X. was
then the sole surviving life. R. died intes-
tate. Held, that his heir ex parte materna was
entitled to the lands; that it could not be
presumed that those entitled to the legal es-
tate under the lease of 1840 had conveyed or
surrendered it to C., or had assented to the
then lessor making the renewal to C. The
doctrine of surrender by operation of law,
resulting from the tenant’s acquiescence in
a new demise by the landlord, must not be
extended.

Queere—What was the precise operation of
the lease of 1766?—Creagh v. Blood, 8 I. E.
R. 688; 3 Jon..& L. 188. (C.)

1. A. was lessee of a term. The lease con-
tained a proviso against assignment or sub-
letting generally, without leave of the lessor ;
and also a proviso that if the lessee should,
during the continuance of the term, do any
act whereby he should be found a bankrupt,
or assign, or attempt to assign, his property
for the benefit of his creditors, then the term
should determine absolutely. A., becoming
embarrassed, proposed to assign his property,
comprising the interest in the lease, to trus-
tees, for the benefit of his creditors; and se-
veral of the creditors, including the lessor,
assented to the proposal. A deed poll of
composition, referring to a deed of assign-
ment of even date therewith, was executed
by the assenting creditors, including the les-
sor. The deed of assignment was not exe-
cuted, but it had been engrossed and con-
sented to by the several creditors, the lessor
included. The deed poll contained a proviso
that if it was not executed by three-fourths of
the creditors of A., within six months from
the date thereof, it should be void. <A. sub-
sequently committed an act of bankruptcy, by
leaving the country. Upon a special case
stated to the Court, under the 20 & 21 Vic.,
ce. 60, sec. 355 — Held, that the proviso in
the lease was severable; and that the lessor,
by licensing the breach of one condition
in the proviso, did not license the breach of
the others; that, by the act of bankruptcy,
not licensed, the lease was forfeited, and that
the landlord might lawfully enter; but that,
not having thought proper to await the deci-
sion of the Court, he should bear his own
costs.—In re A. Moore, 31. Jur.N. 8. 142. (B.)

 

V. AssIGNMENT oF Lease. UnprerR Lease.
Ricuts anp LiaBiLities oF ASSIGNEES.

2. Semble—A letting under the Court will
not be a forfeiture of a lease.—Rogers v. Bate-
man, FF). & K. 482. (R.)

3. The assignee of a lease from the lessor’s
agent, with notice, of the assignor’s character
as agent, incurs the same liability as the agent
in sustaining the lease. If the agent cannot
uphold it, neither can his assignee for value.—
Molony v. Kernan, 2 Dr. & War. 31. (C.)

[LEASE.]

 

Agreement for. 517

4. A lease for 500 years, in 1669, contained
a covenant by the lessee, his executors, &c.,
with the landlord, his executors, &c., not
to sell before the first proffer be made to
the landlord, his executors, &c., to the end
that they might have the first refusal thereof,
and pay as much as any other person should
bona fide offer. Held—a covenant that runs
with the land, but not a perpetual one.
Therefore, an assignment of the tenant’s in-
terest having been made 140 years ago, it
must be presumed that the landlord declined
the offer or waived his right, and the tenant
must now hold discharged from the covenant.
—Inre Houghton, 111.C.R. 136; 6 I. Jur. N.S.
113. (L.E.C.)

5. F., tenant of C. for years, in 1844, “agreed
to let unto G. the house and demesne of C., in
as large and ample a manner as the same is
now held by F., at the rent of £48 per annum,
for and during a term equal to the term which
F. has of the same; leaving him full power of
ejectment, and right of distraint in case of
non-payment of rent; G. to have a power of
surrender, by giving six months’ notice in
writing.” Held, an agreement fora sub-lease,
not an assignment.

In 1847, F. served a notice on G., calling on
him to take out a lease. - G. omitted to do so,
but remained in possession, paying rent under
the agreement. There were some negotia-
tions between the parties in 1854. Held—
that the original agreement was not sur-
rendered, and that it might be enforced on a
petition filed in 1862.—Palmer v. Spring, 14 I.
C. R. 380. (C.)

 

VI. Lease For Lire or Lives.

6. A., entitled to an estate pur autre vie, to
him and his heirs, devised it, without any
words of limitation to designate who should
take as special occupant, but by words which
would pass a fee-simple. Held, that on the
death of the devisee it descended to his heir,
and not his personal representative.— Wall v.
Byrne, TI. E.R. 578; 2 Jon. & L. 118. (C.)

7. Lease for lives renewable for ever of
lands in Ireland is not absolutely forfeited by
the extinction of all the lives, and neglect to
pay renewal fines, even after notice from the
lessor. Renewal enforced.— Butler v. Mulvihill,
1 Bligh 137. (H.L.)

8. Though a contract to lease by a tenant
for life, with a leasing power, cannot be en-
forced as an execution of the power, the
contract may be partly enforced by decreeing
a lease for the life of the tenant for life, if the
contract was made bona fide, and especially if
an outlay has been made on the faith of it.—
Dyas v. Cruise, 8 I. E. R. 407; 2 Jon. & L.
460. (C.)

 

VII. AGREEMENT FoR LEASE; ITS SPECIFIC
PERFORMANCE., See AGREEMENT AND
Contract, VIII.

9. By ptf.’s letter, accepted and signed by
defts., it was agreed that “ptf. should set to the
defts., or their assigns if preferred, for the long-
518 Agreement for

est time he could grant.” On a bill praying
specific performance,—Held, that deft.’s were
bound to take such title as ptf. had at the
agreement’s date; and that under its terms
defts. were not entitled to call upon ptf. to
show his lessor’s title.—JZolloy v. Sterne, 1 Dr.
& Wal. 585. (C.)

- 1. A., having leased mines to P., as trustee
for a Mining Co., and having received part
payment of the consideration for the lease, his
executor, P., filed a bill against V., managing
director of the Co., for an account of the
amount due on foot of the purchase-money,
and for payment thereof. On behalf of the Co.,
V. filed a cross bill setting forth facts eviden-
cing conduct, fraudulent on the part of A. and
P., as against the shareholders. V. impeached
the lease as fraudulent, and the consideration
as extravagant. Held, that ptf. in the original
cause was entitled to the relief prayed for by
his bill, and that the cross bill should be dis-
missed without costs.—Pike v. Vigers, 2 Dr. &
War. 1. (C.)—[Affd.: 8 Cl. & F. 562.)

2. An agreement for a lease, with a covenant
by the tenant to pay all tithes, entered into
after the 2 & 3 W. 4, c. 119, will be enforced
by decreeing the execution of a lease reserving
arent compounded of the rent agreed upon,
and the rentcharge in lieu of tithes, if that
was the parties’ intention —Daly v. Duggan, 1
J. E.R. 311. (R.)

38. A Court of Equity will specifically enforce
an agreement for a lease for three lives or 31
years, being for a term customary and well un-
derstood in this country. The circumstance of
the lives not being named in the agreement ;
or of its not being thereby provided by whom
they are to be named; does not create such
uncertainty as to render it invalid, provided
the lives nominated by the party seeking its
performance were in existence at the date of
the agreement.—Frtzgerald v. Vicars, 2 Dr. &
Wal. 208. (C.)

4, Specific performance of an agreement
for a lease will not be decreed in favour of a
tenant, who shows by his conduct and repre-
sentations that he has abandoned the agree-
ment.— Garrett v. Earl of Bessborough, 2 Dr. &
Wal. 441. (C.)

5. Bill for specific performance of a lease
for twenty-one years, and for an account. It
appeared that the defendant held the lands

for one life ; that the agreement was executed |

by the agent of the defendant; possession
given under it, and money expended in im-
provements; but the defendant swore that
the agent had no authority from her to act so.
There was also evidence of her having subse-
quently recognised the agreement, and pro-
mised to execute a lease pursuant thereto. A
civil-bill ejectment was served upon the plain-
tiff, and another upon two of his under-te-
nants. The former was dismissed, but the
latter being undefended, a decree was ob-
tained thereon, under which he was turned
out of possession. In about three years after-

[LEASE.]

 

Specific Performance.

wards this bill was filed. Pending the pro-
ceedings, the c. qg. vie in the defendant’s lease
died.’ Held, that the plaintiff was entitled to
an account of the rents and profits of those
lands which the defendant had received, or
which, without wilful default, she might have
received from the day of the execution of the
civil-bill decree, up to the day of the death
of the c. q. vie.

In this case the Court would decree a spe-

cific performance, if the defendant’s interest

had not expired. Semble—Callaghanv. Pepper,
21 E.R. 399. (E.E.)

6. Semble—When an agreement has been
entered into, since the passing of the 2& 3 W-4,
c. 119, to grant a lease at a rent over and above
the tithe rentcharge, the Court will enforce
it by adding the amount of the rentcharge to
the rent agreed upon.—Davies v. Fitton, 4 I.
E. R. 612; 2 Dr. & War. 225. (C.)

7. A., being tenant from year to year, his
landlord makes a verbal promise to make him
a lease of the premises for twenty-one years.
Held, that A.’s continuance in possession is
not a sufficient part performance to take the
case out of the Statute of Frauds. Brennan
vy. Bolton, 2 Dr. & War. 349. (C.)

8. Demise, in 1777, of lands for the “lives
or life of J. and E., or the longest liver of
them, or whatever lives or life should for ever
thereafter be nominated.” The lease did not
contain an express covenant for perpetual
renewal. In 1836 the original lessor’s son
and devisee executed to the original lessee’s
assignee a renewal for three new lives. This
renewal expressly recited that the original
lease contained a covenant for perpetual re-
newal; and the renewal was expressly made
in “pursuance and performance of said cove-
nant,” but contained no eovenant for renewal.
The habendum resembled that in the original
lease, save that “and” was used instead of
“or.” Under a decree, the lessee’s interest
was sold by this description :—“ A freehold
estate for three lives, with covenant for per-
petual renewal.” The Master reported against
the title, since the original lease did not con-
vey a freehold estate for three lives, with
covenant for perpetual renewal. On excep-
tion thereto—Held, that the report should be
confirmed.—Sheppard v. Doolan, 4 I. E. R.
654; FL & K. 598. (R.)—[But see next case ;
s. c. on appeal. Note the discrepancy between
the reports in stating the habendum.]

9. The habendum of a lease was—“ To have,
&e., to T., his heirs, &c., for and during the
natural life and lives of J., W., and E., or the
longest liver of them, or whatever life or lives
shall for ever or hereafter be nominated.”
The lease did not contain any formal cove-
nant for renewal.

Semble—The habendum amounted to a cove-
nant for perpetual renewal.

When the purchaser of an interest sold
under a decree of this Court acquires thereby
information respecting a supposed defect in
the title thereto, and improperly avails him-
self of that information by purchasing the
Agreement for

estate of the only person who could have
taken advantage of that defect, that purchaser
will not be allowed the benefit of the general
rule respecting doubtful titles—Sheppard vy.
Doolan, 3 Dr. & War. 1. (C.)

1. By settlement of 1786, A. was made
tenant for life; remainder to J. for life; re-
mainder to J.’s first and other sons in tail
male; remainder to J.in fee. A.and J. were
empowered to make leases of the settled
estates. In 1787 they demised part thereof
to G., and covenanted for the quiet enjoyment
of G. and her heirs against the acts of A. and
J., and of any person claiming under them.
This lease was not warranted by the power.
In 1819, on the marriage of J.’s eldest son, F.,
J. and F. jointly re-settled the estate. A
present provision for F., during J.’s life, was
made, and the estates were charged with por-
tions for J.’s younger children, and for his
own benefit. Subject thereto, the estates
were limited in the usual course of family
settlements. J. and F. covenanted that the
lands were free from incumbrances; “such
leases of the premises as have been really and
bona fide made, only excepted.”

J. died. F. brought an ejectment to re-
cover the lands demised to G., and obtained
judgment. Those interested in G.’s lease
filed a bill for an injunction, and to compel
F. to confirm it; and insisted that, by the
settlement of 1819, he had agreed to ratify
and confirm it. Decree accordingly.— Gray
v. Knox, 51. E.R. 465. (E.E.)

2. A., tenant for life, with a leasing power,
remainder to his son B., in 1814 entered into
a written agreement for a lease with C., at an
acreable rent of £5. 13s. 9d. C. entered into
possession, and in 1820 made a verbal agree-
ment with A. for a reduced rent of £4. 15s.
per acre, which was paid down to A.’s death
in 1839, after which B. refused to accept of
the abated rent, and in 1842, when the value
of the land was £2. 10s. per acre, filed a bill
for specific performance of the agreement,
which was decreed at the abated rent, without
costs.—Clarke v. Moore, 71. E. R. 515; 1 Jon.
& L. 723. (C.)

3. Under a power to lease at the best rent,
the very highest rent that can be obtained is
not required ; and thetrue criterionis, whether
the rent has been fairly obtained without any
private advantage to the donee of the power.
An agreement which the Court treated as
subject to the same rule was enforced, though
the rent obtained was below the offers made
by less solvent tenants, and below the average
at which the lands were valued, when the
agreement was fairly made and was a prudent
one.

Hartnett v. Yeilding (2 Sch. & Lef. 549)
commented on.

Though a contract to lease by a tenant for
life, with a leasing power, cannot be enforced
as an execution of the power, it may be par-
tially enforced, by decreeing a lease for the
life of the tenant for life, if-the contract was
bona fide, and more especially if there has been

[LEASE.]

 

Specific Performance. 519

an outlay on the faith of it—Dyas v. Cruise, 8
I. E. R. 407; 2 Jon. & L. 460. (C.)

4. Specific performance of an agreement for
a lease decreed, after a refusal by the tenant
to execute any lease, and a delay of six months,
though the agreement was to execute a lease
ona given day; the landlord having at first
insisted on an untenable term, and never pre-
pared or tendered a lease to the tenant, ac-
cording to the usual practice.— Burke v. Smyth,
91. E.R. 185; 3 Jon. & L. 193. (C.)

5. Under a power to lease at the best rent,
the highest rent need not be reserved.

Waiver of a contract is itself a contract,
and must be acquiesced in by both parties.
When relied on against a tenant, waiver must
be established by clear and unequivocal evi-
dence.

The Court decreed specific execution of an
agreement to lease at a certain rent, with an
understanding that the tenant was to pay tithe
rentcharge and poor-rate, by directing the
execution of a lease at a rent equal to that
agreed upon plus the tithe rentcharge: a lease
for a longer term having been prepared at
that rent by the landlord’s agent, without his
authority, on the tenant’s representation, and
executed by the tenant, and the rent so re-
served having been accepted by the landlord.

Semble—A contract, partly legal and partly
illegal, may, so far as it is legally capable of
execution, be specifically performed, if the
illegal’ part be not malum in se, and rests in
understanding only.—Carolan v. Brabazon, 9
LE. R. 224; 3 Jon. & L. 200. (C.)

6. Specific execution of this contract for a
lease was decreed :—“ From the love and
affection I have for you, as my first cousin, I
now promise and engage to you, your heirs or
assigns, during my natural life, in reversion,
the farm of C., as now in your actual posses-
sion, at £1. 2s. 9d. per acre, as now paid and
payable by you.”

The continuance of the rent reserved by the
former lease is a valuable consideration for
the promise to grant the lease in reversion.—
Moore v. Crofton, 9 I. E. R. 3844; 3 Jon. & L.
438. (C.)

7. Specific execution of a written agree-
ment for a lease decreed at the suit of the
tenant, with several additions contemporane-
ously agreed on by parol, set up by the answer,
but omitted in the bill, the plaintiff paying
the costs of the suit— Warren v. Thunder, 9
IL E.R. 3871. (C.)

8. An agreement to grant a lease, subject
to such clauses as the landlord chooses to in-
sert, will not be specifically performed when
the landlord insists on a clause for avoiding
the lease on subletting, and the tenant has
already sublet; and although the Court would
not allow him to specify unreasonable clauses,
yet—Semble, if he decline to name any, the
agreement is too uncertain to be enforced.

The subsequent insolvency and continuing
embarrassments of the tenant, are good grounds
520 Agreement for

for refusing specific performance of an agree-
ment for a lease; especially if there has been
also laches.— Plunkett v. Dease, 10 I. E. R. 124.

(C.)

1. The ‘Limerick Regulation Act (Loc. &
Pers.) enacted that tle Corporation property
should be disposed of only for the public uses
and charities of the city, and subject to cer-
tain control and formalities mentioned in the
Act; and that it should take effect from the
Ist Sept. 1823. It received the royal assent
on the 18th July 1823. At a corporate meet-
ing on the 30th August, property was leased
to a member of the body, not for public pur-
poses, and without the control or formalities
required bythe Act. Held, that notwithstand-
ing the clause deferring its operation, the Act
was binding on the corporate property from the
date of its passing, and the lease was there-
fore void. :

The Act contained a clause declaring it a
public Act; but it related merely to the affairs
of the Limerick Corporation. /Zeld, that it
was a private Act as to the public at large,
but that the persons dealing in the transaction
in question being members of the Corporation
had notice, and were bound by it.

A lease, void under the Act, was attempted
to be supported by a prior contract which was
not under the corporate seal, but was a resolu-
tion of the common council, who were in the
habit of managing the corporate property.
The proof that the property had been held for
public trusts was defective, but the profits had
been applied to public purposes for many
years. The resolution was made in favour of
the chamberlain of the corporation by the
common council, which consisted of persons
under his influence; and the rent, though fixed
by valuators appointed by the common coun-
cil, was under the value. Held, that although
Equity might enforce a contract or resolution,
not under seal or binding at Law, against a
corporation, under circumstances, yet this re-
solution could not be enforced, and would not
support the lease.—The Attorney-General. v.
Ball, 10 I. E. R. 146. (C.)

2. A lease of corporate property granted
under circumstances similar to those in Attor-
ney- General v. Ball (101. E. R. 146), supported
in favour of a purchaser for value.

If a defendant in his answer relies generally
on his right as a purchaser for value without
notice, but does not specifically deny notice of
a particular matter—e. g., a private Act, with
which he is charged in the bill, and which
would invalidate his title—the plaintiff not
excepting to the answer is bound to prove
notice.

A statute relating to the corporate property
of a city, with the usual clause declaring that
it shall be deemed a public Act, does not bind
strangers with notice; and the mere proba-
bility of a purchaser knowing it, or precau-
tions taken by him in a purchase of corporate
property, will not tix him with constructive
notice.—A ttorney- General v. Marrett, 101. E. R.
167. (C.)

[LEASE.]

 

Specific Performance.

3. In 1763, P. the elder demised lands to A.
and his heirs, for three lives, the last of whom
died in April 1835. In 1788, J., being seized
in fee of the reversion expectant on the lease
of 1763, settled it to the use of himself for
life, remainder (subject to a jointure and a
term for raising portions) to the use of his
first and other sons in tail male, remainder to
himself in fee, and reserved to himself a
power to make leases at the best rent. In
1794, J. demised the same lands to T. (who
was entitled to the interest in the lease
of 1763) and his heirs, for three lives, at a
rent which was greatly below the best rent,
and covenanted for the quiet enjoyment of
the lessee and his heirs, against the acts of
J., and all persons claiming under him. In
1815, upon the marriage of P. the younger,
the eldest son of J., the lands were conveyed
by J. and P. to trustees and their heirs, “sub-
ject to the several tenants’ leases thereof now
subsisting,” to uses for the benefit of J., P.
the younger, his intended wife, and the issue
of the marriage; and divers provisions were
thereby made for P. the younger and his
intended wife, which did or might take effect
out of the life estate of J.; and J. and P.
covenanted that the lands were free from
incumbrances, “the several tenants’ leases
thereof” excepted. J. died in’ September
1836, and thereupon P. brought an ejectment
to recover possession of the lands demised by
the lease of 1794, one of the c. g. vies in it
being still in esse, and obtained judgment
therein, Thereupon, the person interested in
the lease of 1794 filed his bill for an injunc-
tion against the proceedings at law, and to
compel P. the younger, to execute a lease to
him similar to that of 1794, charging, that by
the settlement of 1815, P. the younger had
agreed to confirm the leases on the estate,
and that it was inequitable in him to refuse
to do so, and to throw the plaintiff on the
assets of J. for compensation, inasmuch as he,
P., had derived great benefits from the life
estate of J. P. denied that there was any in-
tention on the part of the parties to the settle-
ment of 1815 to confirm the leases of the
lands; he denied notice of the lease of 1794,.
and said that the leases to which the settle-
ment of 1815 was made subject, were the
leases executed by J., pursuant to his power.
The only evidence of notice was the posses-
sion of the tenant. Held, that P. the younger
was bound to confirm the lease of 1794; that
the personal representative of J. was not a
necessary party to the suit—=Stoughton v.
Crosbie, 5 I. E. R. 451. (E.E.)—| Followed:
Marquis of Donegal v. Greg, 131. E. R. 12. (C.)}

4. By a settlement, made on the marriage of
K. with R., the lands of C., held by lease for
lives renewable for ever, were limited to K.
for life, remainder to the sons of the marriage
successively in quasz tail; and in default of
sons, to the daughters as tenants in common,
with the usual power to K. to make leases in
possession, for any term not exceeding three
lives or thirty-one years. There were issue of
the marriage two daughters. R. died, and
K. married M., by whom he had several child-
Agreement for

ren. K., a few days before his death, “being,”
as the petition stated, “in a very weak state of
health, and knowing that he had but a short
time to live, and with a view of making a pro-
vision for the said M. and her children, and in
order to enable them to support themselves by
their industry after his death, executed an
agreement in the following terms :—‘I agree
to give a lease of the lands of C., now in my
possession, to Messrs. J. and P. B., of S., in
the county of D., for the term of thirty-one
years or three lives, for the sum of £1. 10s. per
Irish acre, said lease to be for the benefit of
my wife, M. K., and her children, the lives to
be J., N., and R. K., my three sons.—T. K.
Witness present, J. K., J. M.’” This agree-
ment did not appear to have been delivered
to the trustees during the life of K., and was
not set up by them or M. and her children,
until some months after his death, but the
rent reserved by it did not appear to be under
the value of the lands. Held, that M. and her
children were entitled to have a lease executed
by the daughters of K., pursuant to the terms
of the ‘agreement.—King v. Roney, 51. C. R.
64. (C.)

1. In April 1851, A. contracted tg let lands
to B., at an occupation rent. The written
agreement provided that leases should be taken
out within three months. Immediately B.
went into possession, and in May 1854 ten-
dered a draft lease to A., who refused to exe-
cute it. In Jan. 1856 A. sold the lands to C.,
who had notice of the agreement. In June
1856 C. tendered to B. a deed of attornment,
describing B. as tenant from year to year;
which B. refused to execute. In March 1857,
C. served on B. a notice to quit. In May
1857 B. filed this petition. Held, that there
was not any abandonment of the lease, nor
such a waiver as disentitled B. to specific
performance of the contract.—Brophy v. Con-
nolly, 7 I. C. R. 173; 31. Jur. N. 8. 830. (C.A.)

2. A land agent has not authority to enter
into contracts for leases.

Entering into possession under a contract
for a lease is a part performance; but the
Court will not decree a specific performance,
unless the terms of the contract are clearly
proved. A tenant paid a fine, and entered
into possession, but did not claim a perform-
ance of the contract for a lease for thirteen
years, and until after the death of the agent
with whom the contract was said to have been
made, during part of which time he paid an
increased rent, and there was evidence that
the contract was for a tenancy from year to
year. The Court refused a specific perform-
ance.

Ina suit for specific performance, a contem-
poraneous letter of a deceased agent, with
whom the contract was made, was admitted in
evidence to prove the terms of the contract,
the tenant having relied on the acts of the
agent to establish that he had authority to
contract.

In a suit for specific performance of a con-

’

[LEASE.]

 

Specific Performance. 521

tract, entered into by an agent, his authority
to contract should be stated in the petition.
Semble—If it be not, the petitioner cannot
prove it at the hearing.
Observations on the practice of filing affi-
davits in reply to other affidavits —WMortal v.
Lyons, 81. C. RB. 112. (R.)

3. 8. agreed to grant to B. a lease of the
lands of T. The agreement contained a pro-
vision that the lease should “ give exclusive
shooting and coursing, but not ‘ fishing.’”

Semble—That S. was entitled to the exclu-
sive right of fishing in the premises agreed to
be demised.

B. had previously held T. under a lease from
S., which contained an express exception of
fishing, fowling, and shooting, and there was
evidence that 8. had intended to retain the
exclusive right of fishing in the premises
agreed to be demised; but S. had himself
drawn up the agreement. Held, that the evi-
dence of intention was admissible in favour of
S. in a suit instituted by B. for specific per-
formance of the agreement, and that B. was
not entitled to specific performance of the
agreement, without giving to S. the exclusive
right of fishing.

Queere—Whether the occupation of houses
with small portions of land thereto attached
is any breach of covenant against sub-letting,
where the occupiers are labourers of the lessee,
hold merely as his servants, and are bound
to give up the premises on demand by him?

Specific performance of an agreement for a
lease was resisted on the ground of forfeiture
by breach of conditions; and there being a
question, whether such forfeiture had oc-
curred, there was not sufficient evidence of
the facts upon which that question was raised.
Held, that specific performance of the agree-
ment ought to be decreed; the lease to be
antedated, so as to let the question be tried
at law.—Browze v. Sligo, 10 I. C. R. 1; 51.
Jur. N.S. 85. (C.)

4, A power was given by will to three trus-
tees, and the survivors or survivor of them,
during the minority of a tenant for life, to
lease “ by indenture, for any term not exceed-
ing three lives, or for any number of years
not exceeding 31 years determinable upon
three lives, or for any number of years not
exceeding 31 years.” In 1813 A. made a pro-
posal in writing to the acting trustee and
agent to take premises at a rent, for a lease
“of three lives or 31 years ;” butdid not name
the lives. The acting trustee suffered him to
enter into possession, and kept the proposal
amongst the papers relating to the estate;
but did not in writing accept it. The rent
was regularly paid. A. was never called on
to name the lives; he expended large sums on
the premises; and his representative conti-
nued in possession until 1859, when a notice
to quit was served. Upon a petition being
filed for specific performance of the proposal,
by the execution of a lease for three lives in
being in 1813—-Held, that the proposal was not
a sufficient agreement within the Statute of
Frauds.

66
522 Agreement for

That the acceptance of the proposal by
one trustee would have been void under the
power.

That assuming it binding, by acquiescence,
upon the tenant for life, it was not binding
upon the tenant in tail, by reason of the laches
of the tenant in not naming lives upon the
decease of the former.

That, assuming the proposal to be binding,
the proof of the lessor’s knowlege of the
lessee’s faith in his title being insufficient, the
doctrine of Lord Kensington v. Phillips (5 Dow.
61) did not apply; and that as upwards of
thirteen years had elapsed since the expiration
of the term of 31 years, the tenant was barred

by lapse of time.—Dalton vy. Barry, 5 I. Jur.
N.S. 271. (C.)

1. A., being in treaty to obtain a lease of
lands from B., the following memorandum of
agreement was made with mutual consent :—
“31st March 1852. Term, 61 years. Rent,
from the lst of May, £75. Taxes and rates to
be paid by A., and allowed out of the first
gale. Covenant to expend £300 in permanent
buildings in two years. Covenant to give
tenant the refusal in case of B. selling.” A.
entered into possession in the same year, paid
rent, and obtained receipts; but did not ex-
pend the sum of £300 in improvements upon
the lands. In the year 1854 he furnished a
draft lease for approval to B., who refused to
receive it, alleging that A. had not entitled
himself to a lease, having failed to expend
the sum of £300 within the specified time. A.
filed a cause petition for specific performance.
Held, that relief could not be granted, the
petitioner having admittedly violated an es-
sential portion of the agreement.— Williams v.
Langley, 71. Jur. 264. (C.)

2. The lessee under a lease, which con-
tained a covenant against assignment, agreed
to assign his interest. The purchaser peti-
tioned for specific performance. The lessee
alleged, in defence, that he could not obtain
the lessor’s assent to the assignment. Held,
that a Court of Equity could not relieve the
purchaser.—Meara v. M., 8 I. C. R. 37. (C.)

3. A written proposal to take lands at a
rent of £1. 5s. per acre, for three lives or 31
years, was sent by F. toa tenant for life, who
replied that he had not power to execute such
a lease, but, “if you choose to take a lease in
the usual way, I will allow you £20 to get up
a cottage, and a lease for your own life.” F.
remained in possession of the lands, but con-
tinued to pay the old rent, which was less than
£1. 5s. per acre, and never made any claim for
the £20. Held, that the proposal, answer, and
subsequent occupation did not constitute a
sufficient agreement to bind the remainder-
man.

F. entered into an agreement for a lease
with a tenant for life. The agreement did not
bind the remainderman. In March 1854, the
tenant for life being dead, F. communicated
the contract to the remainderman’s agent,
requesting the grant of a lease, which the

[LEASE.]

 

Specific Performance.

remainderman refused to execute. In April
1854, the agent informed F. that he had been
directed to serve a notice to quit on all the
tenants ; but that he would not serve F. if he
sent a proposal to pay £1. 5s. per acre (the
rent reserved by the alleged agreement). F.
replied by setting out the agreement, and
stating that he was not tenant from year to
year, but saying that he left his case in the
agent’s hands for the present, “particularly
as a lease would not be granted on any part
of his property.” Afterwards F. expended
large sums in improving his farm. Notice to
quit was served on F. in 1856. Held, that
F. was not entitled to specific performance
against the remainderman of the invalid agree-
ment.— O’Fay v. Burke, 81. C. R. 225. (R.)—
[Affd.: 81. C. R. 511. (C.A.)]

4, An agreement to let lands contained
a clause that the tenants should repair the
dwelling-house within two years, and put a
new roof on it; the landlord to bear one-half
of the expense, the tenants to execute and
complete a lease, at their own expense, within
six months from the date of the agreement.
Held, that in equity time was not of the essence
of the contract.

In cases between landlord and tenant, when
the tenant has been in possession under the
agreement, and has not been required by the
landlord to take out a lease, lapse of time is
not a good defence to a suit for specific per-
formance.

When the acts of a party to a contract
would have worked a forfeiture of all benefit
of the contract, if it had been executed, the
Court will not decree a specific performance.
But when there is a doubt as to whether there
has been any breach of the contract, and the
evidence is conflicting, or the breaches of the
agreement are nominal, the Court may make
a decree leaving the respondent to his remedy
at law.

In this case, it being alleged that the peti-
tioners had not repaired the dwelling-house
according to the agreement, the Court direct-
ed the lease to be antedated.— Cartan v. Bury,
101. C. R. 887. (R.)

5. S., by an instrument in writing, agreed
to grant to D. a lease of certain premises, at
an annual rent of £2. 5s. per acre, for a term
of 21 years, and that the lease should contain
a covenant by the lessor to pay to the lessee
the annual sum of £5 for certain repairs.

At a meeting between D. and S. it was
arranged that the rent should be £29. 18s.,
that a right of way should be reserved to S.,
and that the payment of £5 per annum should
only be for five years. This arrangement was
not reduced to writing. D. filed a cause peti-
tion to perform specifically the written agree-
ment as modified by the unwritten stipulations.
Held, that such petition was maintainable, the
variations being all for the benefit of the
respondent.—Donald vy. Scott, 10 I. C. R. 496;
51. Jur. N.S. 874. (C.)

6. When an agreement is alleged in a peti-
Agreement for

tion for specific performance of that agree-
ment, it is not necessary to put in issue the
written documents relied on as evidence of it.

Lands were conveyed by a registered deed,
‘subject to existing leases and lettings ;” the
vendor had previously contracted to grant a
lease; and there was written evidence of that
agreement. The vendee had no express notice
of it. Held, that the vendee was bound to
execute a lease according to the terms of that
agreement.—[Reversing Rolls decision, 11 I.
C. R. 510.]—Rice v. O'Connor, 12 I. C. R. 424;
71. Jur. N. 8.109. (C.A,)

1, An agreement for a lease at a fair rent
and value, entered into by the owner of an
estate, at the time when a receiver had been
appointed over itjby the Court of Ch., that
Court never having taken any course in respect
to it, although the tenant went into possession
thereunder—Held, valid. Held, that the owner
of the estate, which was then being sold in
this Court, should execute a lease to the te-
nant in pursuance of the agreement, and that
same should appear upon the schedule of
tenancies.—IJn re Blake’s Estate, 9 I. Jur. N.S.
97. (L.E.C.)

2. In 18577a landlord wrote this reply to his
tenant’s application :—“ I will give you a lease
of one life or 21 years, containing the usual
covenants,” &c.+iThe tenant wrote:—‘‘In reply
to your letter, I beg to propose paying you for
all the land I hold in E. 30s. per Irish acre,
subject to survey, from the 1st of May next.
As to a lease you may do that as you please,
and whatever you choose to insert in it, as I
only want the land during my life, which is
now midway between 60 and 70.” The land-
lord answered :—“I conclude that you meant
to add, ‘and so in proportion to any fractional
part of such Irish acre;’ if so, I agree to com-
plete that proposal. I will have a survey
made as soon as possible.” He afterwards
wrote :—“If you have a wish for any particular
life to be named, I will leave it to you to do
so.” In another letter:—“I think you said
you wished the lands only for your own life,
if that be so, I am willing to meet your wishes.”
A dispute arose touching the quantity of land.
Nothing further was done until 1859, when the
tenant furnished a draft lease for the life of
the Prince of Wales, adopting the landlord’s
measurement.

After the tenant’s death the Court refused
specific performance.

Letters will not constitute an agreement
which the Court will specifically perform, un-
less the answer is asimple acceptance without
the introduction of a new term.— Wright v. St.
George, 12 I. C. R. 226. (R.)

38. In June 1860, P., by instrument in writ-
ing, proposed to take from G. a house and
lands, the lease “to contain the usual clause
of surrender ;” this proposal was accepted by
G.; and P. soon afterwards entered. InJuly
1860, a draft lease was submitted on behalf of
P., containing the usual covenants and a clause
of surrender at the end of each half-year.

[LEASE.]

 

Specific Performance. 523

G.’s solicitor objected to this instrument, and
returned another instrument, containing a
clause of surrender at the end of every two
years; various unusual provisions not autho-
rised by the agreement; and a reservation of
the game. After some correspondence, on the
28th Dec. 1860, P.’s solicitor wrote to G.’s—
“P. will not accept a lease with a reservation
of game; but, to avoid dispute, he will accept
the lease according to the draft approved by
you, omitting the reservation of game.” On
the 29th Dec. G.’s solicitor replied:—“ G. will
not forego the reservation of game.” Soon
afterwards P. went out of possession. In
March 1861, G. offered to make a lease omit-
ting the reservation of game. Held, that G.
could not enforce specific performance of the
agreement for a lease.— Guillamore v. Peacocke,
121.C. R. 354; 71. Jur. N.S. 24. (C.)

4. T., owner of lands, on the 26th July 1854,
wrote to F. his tenant, requesting him to send
a proposal to take a farm at the rent of £170,
for life. F., on the 8th August, sent a pro-
posal for the farm at that rent, for one life,
or 21 years. T., on the 13th, wrote that he
would get the “lease filled up in Dublin.” -
Held, that there was not any finally concluded
contract between T. and F.— Finucane v.
Turner, 18 I. C. R. 488. (C.)

5. F., tenant of C. for a term of years, in
1844, “agrees to let unto G. the house and
demesne of C., in as large and ample a manner
as the same is now held by F., at the rent of
£48 per annum, for and during a term equal
to the term which F. has of same, leaving him
full power of ejectment, and right of distraint
in case of non-payment of rent; G. to have a
power of surrender, by giving six months’
notice in writing.” Held, an agreement for
a sub-lease, not an assignment.

In 1847, F. served a notice on G., calling on
him to take out a lease. G. omitted to do so,
but remained in possession, paying rent under
the agreement. There were some negotiations
between the parties in 1854. Held, that the
original agreement was not surrendered, and
that it might be enforced on a petition filed in
1862.—Palmer v. Spring, 14 I. C. R. 380. (C.)}

6. If a corporation has partly performed a
contract for a lease, this Court will decree its
specific performance, though the contract was
not under the corporation’s seal.

A statute empowered a corporation to make
leases of the corporate property, under their
common seal, for a certain term in possession,
and at the highest rent; and provided that all
leases made in any other manner should be
null and void. Held, that the statute did not
preclude them from entering into an agree-
ment for a lease, provided it was without
delay carried into effect by the execution
of leases in compliance with the statute. —
Steevens’s Hospital v. Dyas, 15 I. C. R. 405; 8
I. Jur.N §. 411. (R.)

7. Demise of the whole territory or precinct
of land commonly called A., containing in itself
524 Renewal of.

by estimation 32 poles of land, more or less ;
the whole territory or precinct of land com-
monly called B., containing in itself by estima-
tion six poles of land, more or less ; the whole
territory or precinct of land commonly called
C., containing in itself by estimation two poles
of land, either more or less; being in all forty
poles of land:—save and except two poles of
G., situate, lying, and being in manor of A.
Held—a good exception—Ellis v. The Lord
Primate, 15 1. C. R. 237. (R.)

1. Demise of the whole territory or precinct
of land commonly called A., containing, &c.,
the whole, &c..... called B., containing, &c.,
the whole, &e..... called C. being in all forty
poles of land; save and except two poles of
G., situate, lying and being in the manor of A.
aforesaid. Held, that the exception was good.

X.tenant of G. and other lands undera church
lease, demised G. to Y. for 21 years, with az. g.
covenant for renewal; and subsequently re-
newed his lease. This renewal, by the convey-
ancer’s mistake, and contrary to the intentions
of the parties, who thenceforth acted as if G.
bad been omitted therefrom, included G.—
Held, that Y. could not maintain again-t X. a
suit for specific performance of the covenant
to renew.—Ellis v. The Lord Primate, 16 I. C.
R. 184. (C.A.)

 

VIII. Revewar or Lease.
AND TENANT, V.

. Generally—For whose benefit a
Renewal enures: Grafts.

. Perpetual Renewal.

. Fines on, Expenses of Renewal
—Apportionment thereof.

. Right to Renewal: how forfeited:
Relief against forfetiure.

. Perpetuity under the Ren. Lease.
Con. Act. See LanpLorp
AND Tenant, V. 4.

See LANDLORD

e

oO es fb

 

VIII. 1. Generally of Renewal: for whose

benefit it enures: Grafts.

2. A demand of renewal fines, made by the
landlord’s law agent without his direction, but
subsequently adopted by him, is sufficient.

The owner of a specific incumbrance affect-
ing a lease for lives renewable for ever may
maintain against the landlord and tenant a bill
for a renewal; but, qguoad the right to the
renewal, he stands in the tenant’s place, and
is bound by the tenant’s acts. On the 7th
Nov. 1825, the landlord served his tenant with
a notice requiring information touching the
deaths of the c. g. v.; and stating that the
tenant if he did not give it, would be con-
sidered to have waived his right to a renewal.
On the 28th Nov. the tenant gave the infor-
mation. The plaintiff, an incumbrancer on
the estate, filed on the 16th Dec. a bill to
renew, without having previously tendered the
renewal fines. On the 10th Jan. 1826, the
landlord served on the tenant another notice,
requiring him to return approved, within a
fortnight, the draft renewal sent therewith;

[LEASE.]

 

Grafts, Se.

and stating that the landlord would execute it
upon payment of the rent and renewal fines.
The notice also required further information,
and stated that it and the former notice were
served under the Tenantry Act. No answer
was returned thereto. No tender of the fines
was made until the 10th Feb. 1830. The
amount of the fines was not paid into Court.
Held, that the right of renewal was lost by the
tenant’s gross laches.

[Pennefather, B.] “If, after a demand pro-
perly made by the landlord, the tenant, without
tendering the fines, files a bill to renew, that
laches deprives the tenant of the benefit of
the covenant of renewal.”— Watkins v. Lloyd,
H. & J. 832. (E.E.)

8. A bishop’s lease was, after a former one’s
expiration, granted at a less fine, because the
new lessee was son to the former tenant, whose
assets were insufficient to pay the fine. V.was
his administrator, but the son had made him-
self executor de son tort. Held, that the new
lease was a graft; and that the new lessee was
bound to renew to asub-lessee without contri-
bution —M'‘Nuliy v. Hamill, Beat. Rep. 544.
CC.)

4. If a lease for lives renewable for ever
expires without renewal, and the landlord
brings ejectment, the tenant ought not to
dispute the title; but should give a consent
for judgment, and file a bill for a renewal.

The lessor, being himself a tenant under a
lease for lives renewable for ever, subdemises,
and covenants that every life added by his
own landlord shall be added to the sub-lease.
On obtaining a new life in bis own lease. he
should inform his tenant that he is ready to
renew.— Wallace v. Patten, 1 I. E. R. 858. (C.)

5. In a suit for renewal, though the deft. be
not proved to be assignee of the reversion, so
as to compel him to renew, yet a case may be
made for a perpetual injunction to restrain
him from executing his habere at law.— Hamul-
ton v. Patten, 11. E. R. 341. (C.)

6. A. devised leaseholds, held under a see,
and other property, upon trust for his daugn-
ter’s sole use for life; then, to the use of her
first son, and her heirs for ever. The trust-
tees renewed the leaseholds until she attained
age. Thenceforward they were renewed from
time to time by her, and large fines were paid
for that purpose. After her death, her hus-
band filed a bill against the remainderman for
contribution towards those fines. Held, that
since upon the true construction of the will
she was bound to keep those leaseholds re-
newed, and was only entitled to the surplus
rents which remained after paying the head
rent and renewal fines, the bill was unsustain-
able.—French v. St. George, 1 Dr. & Wal. 417.

CC.)

7. Courts of Equity in Ireland have not
power to direct the Master to execute a re-
newal of a lease in the name of a person
beyond the jurisdiction. The 5 & 6 W. 4, c.
Renewal of.

17, omits to extend to Ireland the 1 W. 4, c.
65, s. 18, which empowers the Court to order
renewals to be executed under such circum-
stances.—Priaulx v. Mackesy, S. & Sc. 206. (R.)

1. In my opinion, the word “tenant” in the
Tenantry Act, 19 & 20 G. 3, c. 30, means
“tenant in possession;” and the word “as-
signee” tin the Act means the same thing as
if the Legislature had said “assignee in pos-
session.” In construing an Act passed for the
relief of tenants, I am bound to protect the
parties for whose relief the Act was passed.—
[Plunket, C.]—Smith v. Shannon, 3 I. E. R.
467. (C.)

2. The lessee of see lands, held under a
lease with at. g. covenant for renewal, demised
part thereof as building ground, for a similar
term. The sub-tenant covenanted not to carzy
on certain trades upon, or to throw dirt into
the avenue in front of the demised premises,
during the term; and that if he, his executors,
&c., did so, he and they would pay an increased
rent asa penalty. Held, upon a petition by the
sub-tenant against his landlord, for a convey-
ance of a perpetual estate in the lands, pursuant
to the 6&7 W.4, c. 99, that the conveyance
of the fee should contain covenants on behalf
of the sub-tenant, his heirs and assigns, with
the lessee, his heirs and assigns, similar to
those in that behalf contained in the ¢. g. lease
to the sub-tenant, although neither the con-
veyance of the fee nor the lease to the sub-
tenant contained such covenants.—Dockrill
vy. Dolan, 31. E.R. 552. (E.E.)

3. When a party is in possession of premises,
as assignee of a lease, subject to an annuity,
amongst other charges; and, pending an evic-
tion for non-payment of rent, enters into a
new agreement, whereby, subject to the right
of redemption, he is, in consideration of £724,
to get a lease at a less rent, to commence from
the termination of the nine months allowed
for redemption; the new lease so granted
will, although the proceedings have been com-
pleted and the eviction actually had, be con-
sidered as a graft upon the old lease, and, as
such, subject to the annuity.

A party possessed of an estate subject to an
incumbrance, subject to which he has taken
the estate, will not be permitted, by any deal-
ing with the estate, or by any breach of con-
tract relative thereto, to take a new estate in
the same premises freed from such incum-
brance.—Jones v. Kearney, 4 I. E. R. 74; 1 Dr.
& War. 184; 1 Con. & L. 34. (C.)

4. A simple renewal, granted to a lessee
after the date of his will, though in Law it
amounts to a revocation, has not in Equity
any such effect.—Poole v. Coates, 4 I. E. R.
497; 2 Dr. & War. 493; 1 Con. & L. 581. (C.)

5. Lessee for lives renewable for ever sub-
lets for the same lives, and covenants to renew
upon payment of a fine; the lives nominated
by the sub-lessee, his heirs, &c., to be the same
as those inserted in the lease from the head

[LEASE.]

 

Grafts, &e. 525

landlord. Held, that it is, in such case, the
mesne landlord’s duty to ascertain the lives ;
and, having obtained a renewal of his own
lease, to require the sub-lessee to renew, and
tell him the names of the lives.—M‘Donnell v.
Burnett, 41. E.R. 216. (E.E.)

6. A lease, for lives renewable for ever, was
made of the lands of D., except the bogs and
turf-mosses. The tenant reclaimed portions
of the bog, and converted them into arable
land, and afterwards filed a bill for renewal.
Held, that the description of the demised pre-
mises in the renewal ought not to be in the
same terms as in the original lease, but ought
to be so altered that such portions of the
lands as have been reclaimed from the bog
should not pass thereby to the tenant.— Boyle
vy. Olpherts, 4 I. E. R. 241; Long & T. 820.
(E.E.)

7. A. being seized in quasi fee of an estate,
pur autre vie, granted a mortgage thereof in
1814. In 1824 A. obtained a renewal from the
head landlord, and deposited the indenture of
renewal with his solicitor, who, in a foreclosure
suit by the mortgagee, insisted upon retaining
the indenture, by virtue of a lien thereupon
for costs incurred since 1814. Held, that he
was not entitled to that lien as against the
right of the mortgagee.

A solicitor cannot, by his lien, have a better
right to the client’s title deeds than the client
himself had at the time of the costs being in-
curred.— Smith v. Chichester, 41. E. R. 580; 2
Dr. & War. 393; 1 Con. & L. 486. (C.)

8. A., being tenant for lives renewable for
ever at a fine of £15 on the fall of each life;
and B. being his sub-lessee under two leases,
for lives renewable for ever, at a fine of
£7. 10s. on the fall of each life in each lease,
and a penalty of £1 per month for not renew-
ing on the fall of each life; B. bought the fee.
Neither party renewed during about 50 years.
Semble—The presumption is that they had
arranged not to require renewals or payment
of the fines.

Penalties, when incurred, must generally be
paid by the tenant seeking a renewal. Cir-
cumstances may take a case out of the rule.

Semble—That the legal estate not being in
the landlord does not disentitle him to any
fines or penalties——Jn re Colthursts, 5 I. E. R.
322; 3 Dr. & War. 35; 2 Con. & L. 35. (C.)
—[Revg. 41 E.R. 444; FL & K.515. (RJ

9. Renewable leaseholds having been devised
upon trusts, one of the trustees obtained a re-
newal of the lease of the devised lands, and a
new lease of additional lands, in one lease, at a
bulk rent. Held, that quoad the additional
land, the renewal was not a graft upon the old
lease.

The Courts are not inclined to extend the
doctrine of graft.—Acheson v. Fair, 2 Con. &
L. 208; 3 Dr. & War. 512. (C.)

10. S. was entitled, with her brother and
four sisters, to a lease for 31 years, as one of
526 Renewal of.

the next-of-kin to her mother, one of whose
personal representatives she was. The land-
lord made a lease for 51 years, which was
expressed to be made in consideration of the
surrender of the former lease. It described
the lands as late in the possession of the
mother, and then in the possession of S. and
one of her sisters, her co-administratrix.
There was an endorsement on the lease,
stating that it was was made in trust for her-
self, and her brother and sisters. S. married.
The landlord made a lease to her husband of
the same lands, for 40 years, to commence
after the expiration of the 51 years. Held,
that the new lease was a graft.

Although a plaintiff is bound to prove his
whole case at the hearing, yet, if there be no
failure of title, but an omission in the proof of
it, the Court may, in its discretion, direct a
reference to the Master to inquire into it.—
M'‘Alister v. Walsh, 8 I. E. R.,250. (C.)

1. The Tenantry Act, and the local equity
which it declares, do not extend to tenants’
covenants to renew. A lease for lives con-
stained a covenant to take a renewal. When
the lives died, the landlord did not enforce
the covenant against the tenants in posses-
sion. Several years afterwards, the premises,
much deteriorated, were assigned to deft.
The landlord’s agent took a part in the as-
signment, had the conveyance altered, and
treated with deft. to grant her a new lease
at a reduced rent, under circumstances which
might have led her to believe that a renewal
would not be enforced, and of which the Court
disapproved, though no fraud was intended.
Held, that the landlord was deprived of his
right to enforce a specific performance of the
covenant.—Alder v. Ward, 8 I. E. R. 350; 2
Jon. & L. 571. (C.)

2. A. was entitled, by descent from his
mother, to the equitable estate in one moiety,
and to the legal estate in one-sixth of
lands held for lives renewable for ever, X.
being the surviving c. qg. we. During A.’s
minority a new lease, by way of renewal, had
been taken by his father, which on his death
descended to A.; X. being then the surviving
c.g. viein it. Held, on A,’s death that his in-
terest descended to his heir ex parte materna.

A renewal duly made changes the course of
descent of the equitable fee in an estate for
lives renewable for ever; as equity will not in-
terfere to keep it in a distinct line of descent
from the legal estate; and to come within this
rule, it is not necessary that the legal estate
in the entirety should vest in the equitable
tenant. But a renewal to the father of a
minor, the estate in which descends to the
minor, who has also an immerged estate ex
parte materna, is not a new purchase of the
equitable interest so as to alter the line of
descent.

A lease for lives by way of renewal, made
while the former lease is subsisting, and not
surrendered, being outstanding in other par-
ties though intended to operate in possession,
passes a good legal estate.—Creagh v. Blood,
81. E. R. 688; 3 Jon. & L. 133. (C.)

[LEASE.]

 

Grofts, &c.

3. A., B., and C. agreed that B., in consi-
deration of money, should surrender his lease
to C., who should make a new lease to A., who
should sub-demise it to B., at a rent equal to
£9 per cent. on the consideration money.

Semble—The agreement is not void for
usury.—Dowling v. Legh, 9 I. E.R. 413 ; 3 Jon.
& L. 716. (C.)

4, A.,atenant of a renewable interest under
a bishop’s lease, subdemised to B., with at. g.
clause, and in 1837 took a conveyance of the
fee under the Church Temporalities Acts, from
the Eccl. Commissioners, and executed a mort-
gage for the entire of the purchase-money,
with interest at £5 per cent. B. having dis-
puted the amount ascertained as his contri-
bution, an order of reference was made, and a
report obtained in 1846. Held, that B. was
bound to pay A. £5 per cent. interest on his
(B.’s) proportion of the purchase money, from
the date of the mortgage to that of the con-
veyance to be executed to B.

That the increased rent to which B. should
become liable was to be paid only from the
date of the conveyance to him; but that his
rent under the existing lease, and all renewal
fines, should be paid to him from that date.

The Court has jurisdiction to decide those
questions upon the case coming on on the re-
port, though they were not referred to the
Master.—Brabazon v. Lord Lucan, 91. E. R.
441. (R.)—[Revd.; ibid, 540. (C.)]

5. Renewable leaseholds were settled by a
registered deed, on B. for life, with remainders
over. B. being in possession, apparently as
absolute owner, new leases were obtained
under circumstances which would, as against
him have made them grafts on the old interest.
At the same time he sold the lands to a pur-
chaser for value without notice. Held, that a
remainderman’s equitable claim under the set-
tlement was, under the Registry Act, preserved
against the purchaser— Hill v. Mill, 12 I. E.
R. 107. (.) .

6. In a suit against a trustee of a Church
lease, who had expended considerable sums in
obtaining renewals and a perpetuity grant, and
had made an arrangement for the purchase of
the lands in consideration of an annuity to
the c.q. ¢. under an award, in obtaining which
there was some concealment, and which was
never completed, though acted upon for four-
teen years—Held, that the new interest was a
graft, and the trustee bound to acconnt for the
entire period.

The cases where accounts against defend-
ants are limited in point of time, and where
not, considered.—Lovatt v. Knipe, 12 I. E. R.
124. (C.)

7. When there is a lease of Church lands
and tithes by an Ecclesiastical Corporation,
and a sub-lease of part thereof by the first
lessee, with at. g. covenant for renewal, on
the terms of the sub-lessee paying his propor-
tion of such fines, costs, and charges as the
first lessee should have to pay in obtaining a
Renewal of.

renewal of his interest; and there is nota
mutual covenant on the part of the sub-lessee
to accept a renewal, delay on the part of the
sub-lessee in takingout a renewal, and paying
such proportion when required by notice so
to do by the first lessee, at a time when he has
been called upon by the Ecclesiastical Corpo-
ration to renew and pay the necessary fine, is
a circumstance which will be taken into con-
sideration by a Court of Equity on a bill filed
by the sub-lessee for renewal.

Semble—In such a case, if the sub-lease be
put in settlement, notice by the sub-lessor to
the tenant for life, under the settlement, will
be sufficient, without giving notice also to the
trustees of the settlement.

What will be sufficient laches to work a for-
feiture of the right to a renewal of sucha sub-
lease, considered.—_Morgan v. Gurley, 11. C. R.
482. (C.)

1. A judgment creditor filed a bill for sale
of his debtor’s estate (an undivided share of
lands held under a lease renewable for ever),
and obtained a final decree for sale. The
conuzor of the judgment had gone to America,
and all the lives in the lease had expired.
The owner of the other undivided share of the
lands consented to join in the expense of a
renewal. Upon notice to him it was—Ordered,
that the plaintiff be at liberty to obtain a re-
newal in conjunction with the co-tenant of

, the conuzor of the judgment, as a trustee for
the parties in the cause.— Taylor v. Boal, 5 I.
Jur. 166. (R.)

2. A covenant for renewal is a covenant to
grant an estate, and implies the insertion of
such covenants as are incidental to the legal
estate, having regard to the tenure. A cove-
nant for a lease contains a contract that it
shall be accompanied by the ordinary cove-
nants. The party receiving is bound to give
that which those from whom he derives were
bound to, and did give by the original con-
tract.— Vance v. Earl of Ranfurly, 1 I. C. RB.
821, (C.)

3. By a private Act of Parliament, which
received the royal assent in 1846, D. had
power to make f. f. grants to tenants on his
estates, holding by leases for lives renewable
for ever, at the rents reserved by such leases, in
consideration of such sums, by way of premium
for such grants, as the grantors should think
reasonable. The power was exercised, and
large sums were realised by such grants, pre-
viously to the passing of the Ren. Lease.
Con. Act (12 & 13 Vic., c. 105). Held, that
the case was within the 5th sec. of the latter
Act; and therefore D. was entitled to com-
pensation for the loss of the reversion, from a
tenant seeking a f. f. grant under it.

Queere—Whether the Ren. Lease. Con. Act
repealed the private Act?

Semble— An appeal lies to the House of
Lords from an order made under the Ren.
Lease. Con. Act.—Layard v. Donegal, 4 I. C.
R. 450. (R.)—[See 8 H. Lds. Cas. 460.]

[LEASE,]

 

Grafts, §c. 527

4, A written proposal to take lands at a
rent of £1. 5s. per acre, for three lives or 31
years, was sent to F. by a tenant for life. He
replied that he had not power to execute such
a lease, but, ‘If you choose to take a lease in
the usual way, I will allow you £20 to get up
a cottage, and a lease for your own life.” F.,
who had been previously in possession of the
lands, remained in possession, but continued
to pay the rent previously payable, which was
less than £1. 5s. per acre, and never made any
claim for the £20. Held, that there was not
on the proposal, answer, and subsequent occu-
pation, a sufficient agreement to bind the re-
mainderman.

F. entered into an agreement for a lease
with a tenant for life, which was not binding
on the remainderman. In March 1854, the
tenant for life being dead, F. communicated
the contract to the agent for the remainder-
man, requesting the grant of a lease, which
the remainderman refused to execute. In
April 1854, the agent informed F. that he had
been directed to serve notices to quit on all
the tenants, but that if F. would send a pro-
posal to pay £1. 5s. per acre (the rent reserved
by the alleged agreement), he would not serve
a notice on F. F. replied by setting out the
agreement, and stating that he was not a te-
nant from year to year; but saying that he left
his case in the agent’s hands for the present,
“particularly as a lease will not be granted
on any part of this property.” After this, F.
expended large sums in the improvement of
his farm. Notice to quit was served on F. in
1856. Held, that F. was not entitled to spe-
cific performance, against the remainderman,
of the invalid agreement.—[ Affirming Rolls
decision, 8 I. C. R. 225.]—O’Fuy v. Burke, 8
I.C.R. 511. (C.A.)

5. An administrator cum test. an., being in
possession of premises which the testator held
as tenant from year to year, under C., took
a lease from D., the head landlord, to com-
mence from the expiration of C.’s lease. Held,
that the lease was a graft on the testator’s in-
terest, and formed part of his assets—M‘Auley
vy. Clarendon, 8 I. C. R. 568; Dr. Rep. temp. Na-
pier, 433. -(C.A.)—Affg., s.c., 81. C. R. 121.
(R.)\—[Approved of: Eyre v. M‘Dowell, 7 I.
Jur. N. 8. 41; 9 H. Lds. Cas. 619.]

6. X., seized of lands for long terms of
years, and of other lands for 98 years and
three lives, with a covenant for perpetual re-
newal, leased a portion of the lands of both
tenures to A., who demised them to B. for
a term of years, reserving a reversion of six
months, without any mention that part of the
lands was held for lives. B. purchased A.’s
interest, in the L. E. Court. X. assigned all
his interests in all the lands to C., who ob-
tained, on payment of a fine to the head land-
lord, a reversionary lease for 150 years of the
lands held for lives, to commence upon the
death of the last life in the lease. C. refused
to execute a lease to B. for the extended
time, unless B. contributed half the fine.—
Held, that the reversionary lease was a graft
528 Renewal of.

upon the original lease for three lives, and
a renewal thereof, and that C. was bound to
execute to B., as assignee of A.’s interest,
a lease of the premises comprised in the lease
to A., for the term of the reversionary lease,
without any contribution by B.— Wilmot v.
Aylmer, 5 I. Jur. N.S. 372. (C.)

1. D., seized of one undivided fourth of fee-
simple and renewable leasehold estates, de-
mised it to L. for 999 years, subject to a rent.
S. acquired the entire of the estates, and up
to 1828 paid rent to C., who had succeeded to
D.’s interest, and who died in 1828, devising
her interest to A. S. denied A.’s title; ob-
tained a renewal of a lease in 1835, and paid
no rent from 1828 to 1857; when A., who had
previously been ignorant of his precise title,
filed a petition to have the renewal declared
a trust for him. Held, that he was not barred
by lapse of time, or by the Statute of Limita-
tions. :

If any new rights had meantime been
created, or third parties had been preju-
diced by the delay, A. would have been
barred by laches or acquiescence.—[ Per Lord
Campbell, L.C.]

So long as the relation of landlord and te-
nant subsists as a legal relation, the land-
lord’s right to rent is not barred by non-pay-
ment, for however longa period. The Statute
of Limitations merely cuts off the recovery of
more than six years’ arrears.—[ Per Lord Cran-
worth. ]

The 3 & 4 W. 4, c. 27, s. 52, only bars equi-
table rights so far as they would have been
barred if they had been legal rights.—[Per
Lord Cranworth].—Archbold y. Scully, 7 I. Jur.
N.8.1. (H.L.); 9 H. Lds. Cas. 360.

2. In 1795 D., by a lease for three lives re-
newable for ever, demised to P. four denomi-
nations, of two of which it was recited that
they were subject to unexpired leases for
lives. Of these two denominations P. did not
get into occupation, even by receipt of the
rents. The lessor continued to receive the
rents and deal with those two denominations,
and in 1830 renewed the lease to P., who
had been paid an apportioned rent for the
two denominations of which he was in occu-
pation. Held, that P., on the execution of
the lease in 1795, went into possession of two
denominations, and quast possession of the
other two, until the determination of the prior
leases.

That P. was entitled to a renewal, subject,
however, to all leases bona fide made by the re-
spondent, son of D., before the filing of this
petition; the petitioner to get no costs, as he
had not sooner asserted his title, of which the
respondent was unaware.—Pigott v. Dunne, 7
I. Jur. N. 8. 194. (C.}-[Affirmed, 7 I. Jur.
N. 8. 254. (C.A.)]

3. A. demised lands to B., with at. g. cove-
nant for renewal on payment of a renewal fine.
B. demised on like terms to C., D.,E., F.,and G.
C. conveyed his share of the lands on trust to

[LEASE.]

 

Grafts, 3c.

secure a jointure for his wife. D., a creditor
of C., went into possession of C.’s share, with
notice of the settlement ; and while so in pos-
session, a large arrear of rent and renewal
fines accrued due from B. to A. The lands
were distrained for the rent. D. purchased
A.’s interest ; took a conveyance to a trustee
for himself; served a notice on B. and the
under-tenants to pay the rent and fines; on
non-payment, brought an ejectment in the
name of his trustee, and recovered possession.
Held, that the lands were subject to the join-
ture, notwithstanding the eviction.

Though fraud be charged, and not proved,
if, on the facts stated and proved, without
reference to the charges of fraud, a right to
relief is established, the Court ought not to
dismiss the petition—Lombard v. Hickson, 13
IC. R. 98. (R.)\—[Affirmed : cbid, 533. (C.A.).
Reversed: L. R. 1 H. L. 524.]

4, When the reversioner in a lease for lives
renewable for ever, in reply to a request from
the tenant to execute a renewal, postpones the
execution, for his own convenience, he is not
entitled to require septennial fines which
might otherwise become due in the interim ;
nor is he entitled to impose upon the tenant
any condition respecting the tenant making
out title to the lease, before the time at which
he will be prepared to execute such renewal.

It is not necessarily fraudulent on the part
of an equitable tenant for life, of renewable
leaseholds, to require the renewal to be made
to him, without mentioning the settlement by
which the legal estate is vested in trustees.—
Allen v. Aldworth, 131. C. R. 190. (C.)—[Affd.:
11 H. L. Cas. 549.]

5. One of the lives in a renewal of 1803 was
described as B.C. the younger, son of B. C. of
Sion, aged 15 years or thereabouts. There
were two persons of the name B. C.; one the
eldest son of C. of Sion, who was proved by
reputation to have been then 15 years old;
the other the fourth son of B. C. of Kildalvin,
who, as proved by the inscription on his
tombstone, was then nine years old. Held,
that neither reputation nor the inscription
was admissible to prove the age of the parties.

That in the absence of evidence of mutual
mistake of the executing parties to the renewal,
B. C. the son of B. C. must be taken to have
been the c. g. v.— Colclough v. Smyth, 15 I. C.
R. 347. (R.)—[Affirmed: ibid, 396. (C.A.)]

6. In 1683, the owner in fee of a manor
demised to A., for three lives renewable for
ever, a mill, with adjoining lands, and the right
or quarrying stones in all the freestone quar-
ries then within the manor, or which should
thereafter be found within it.

In 1744, there was made to B., a purchaser,
a conveyance in fee of part of the manor, with
a right to quarry on the lands thereby con-
veyed, without any reservation, and without
reference to the prior lease which had been
made before the Irish Registry Act ; the con-
veyance of 1744 was defectively registered.
Perpetual

There was not any evidence whether any
quarries had been open on these lands in 1744;
but it appeared that, for 50 or 60 years before
the institution of this suit, the right of quarry-
ing on this portion of the manor had been
exercised uninterruptedly by the representa-
tives of A.’s interest. Neither A. nor any of
his representatives had ever been in privity
with B.; but renewals of the lease of 1683
had from time to time been executed by the
owners of the unsold portion of the manor.
In a suit for a renewal—Held, that, as there
had been, so far as living memory extended,
an uninterrupted enjoyment of the right of
quarrying on B.’s lands, which right would be
justified by the lease of 1683, the presumption
was that there had been in 1744, a user of this
right such as would have given B. notice of
the lease of 1683.

That a renewal of that lease should comprise

- only such of the quarries on the lands con-

veyed by the deed of 1744 as were already

open and worked.— Kyle v. O'Connor, 16 I. C.
R. 46. (C.)

-1. In 1849, judgments were obtained against
A., who in 1851, became by virtue of a parol
agreement or by operation of law, tenant from
year to year of X.

In professed pursuance of the Judgment
Mortgage Act, s. 6, affidavits were in 1855
registered in respect of the judgments of 1849,
against A.’s interest in X. In 1858, that
interest was enlarged by A.’s accepting a lease
for years, with a’ covenant for perpetual re-
newal. This lease was, immediately upon its
execution, deposited with B. to secure a pre-
vious loan made by C. to A. on the faith of
this security. Throughout this transaction B.
acted as solicitor for both A. and C. There
was not any investigation of the title, and B.
had actual notice of the previous tenancy from
year to year. <A.’s enlarged interest in X.
having been sold, a question of priority arose
between C. and the judgment creditors of
1849, touching the proceeds of the sale. Held,
that the tenancy from year to year not having
become vested in A. under an “ instrument,”
was not under Pigot’s Act withdrawn from the
operation of the judgments of 1849, by the
2nd sec. of the Judgment Mortgage Act.

That the enlarged interest of 1858, being a
graft on the tenancy from year to year, became
vested in A. asa trustee for the judgment
creditors of 1849, to the extent of their equi-
table charges; and that C., although a pur-
chaser for value, took subject to those incum-
brances, on the assumption of their having
been kept duly registered as judgments; the
circumstances having been such as to fix him
with notice of their existence. — In re Totten-
ham’s Estate, 161. C. R. 115. (L.E.C.)

 

VII. 2. Perpetual Renewal.

2. A power of attorney given by the owner
in fee to make leases “for such terms of lives
or years as should be agreed on’— eld, to
warrant the making of a lease for lives renew-

[LEASE,]

 

Renewal. 529
able for ever.— Boyland v. Warner, H. & J.
79. (E.E.)

3. A., seized in fee, demised to B. the lands
of K., with liberty to raise and sell limestone,
reserving to the lessor and his heirs, and to
his tenants on the adjoining lands, the right
of raising limestone; habendum, for one life or
thirty-one years. A. covenanted for himself
and his heirs that he would, during the lessee’s
life, execute to him a renewal, subject to the
like rents and covenants. Held, that A.’s
devisee for life was bound to execute one re-
newal only; and that a second renewal exe-
cuted by him did not bind the remainderman.

That the second renewal did not operate as
a surrender of the first, although expressly
stated so to do.

That B. had not any right to delegate to
more persons than one his right of raising and
selling limestone.—Swan v. Colclough, H. & J.
807. (E.E.)

4. A lease made before the Statute of
Frauds, and now lost, being proved tp contain
an agreement respecting the amount of a fine
payable “upon the renewing of any life or
lives,” and having been renewed seven times,
an issue was directed to try whether, at or
before the making thereof, there was an agree-
ment for a lease for lives renewable for ever.
There was a second issue directed: whether
such lease contained any clause or covenant
relating to a renewal, and independent of the
stipulation respecting the amount of fines.

Quere—If tenant for life makes a lease for
lives in pursuance of a subsisting covenant
for perpetual renewal, and dies, has the lessee
therein a good defence at law to an eject-
ment by the remainderman who has succeeded
to the estate?—Nangle v. Smith, 1 I. E. R.
119. (C.)—[Affd.: 7 Cl. & F. 405; West, 184.]

5. On T.’s marriage, lands, held for lives
renewable for ever, were settled on T. for life,
with power to T. “and all and every other
person or persons to whom any use is hereby
limited, when in actual possession of the lands,
&c., to demise them for any number of lives or
years, consistent with their respective interests
therein, to commence in possession, and not in
reversion, remainder or expectancy ;” reserving
the best rents, without taking any money by
way of fine, &c. T. leased to A. at a fair rent,
for three lives, with a covenant, that on failure
of any of those lives, the lessor, his heirs and
assigns, would, on payment of a £5 fine on
each life that should happen to die, add
another life, nominated by the lessee, from
time to time, successively for ever.

The Ld. Ch. of Ireland, in 1839 [case not
reported] directed that a case should be stated
for the opinion of the C. P.; the question to
be :—Whether T.’s lease, and the covenant for
renewal, were warranted bythe leasing power?

The C. P. certified that they were warranted
by the power.

In 1840, the Ld. Ch. pronounced a decree.
in accordance with that certificate, and directed

67
530 Perpetual

specific performance of the covenant to renew.
[Case not reported.] On appeal :—

Held, that the decree should be reversed,
and the bill dismissed with costs.—Clarke v.
Smith, 9 Cl. & F. 126.

1. A., possessed of lands for 21 years under
a See, demised to B. and C. for 21 years, with
at. gq. covenant for renewal. B. and C. sold
part, and partitioned the rest. Each retained
16 acres for his share. B. bequeathed his
share to his two sons. C.’s share was after-
wards sold to ptf. After this sale, C.’s sons,
without ptf.’s knowledge, obtained a renewal
of the entire of the lands in their own names;
mortgaged them to M.; and brought an eject-
ment against ptf. Deft., an attorney, prepared
the mortgage, and in that action acted as
attorney for the ptf.’s lessors.

Ptf. filed a bill against B.’s sons and M.,
and obtained against thera a decree for an
account and reconveyance. Deft. afterwards
bought the interest of B.’s sons, and paid off
the mortgage. After many attempts to settle
accounts, and obtain from deft. a reconvey-
ance, ptf., being in distress, signed an agree-
ment, stating that he had surrendered his
holdings to deft., and agreeing to a reference
to arbitration respecting a new division of the
lands, and to take them at an increased rent.
No actual surrender was proved, nor was any
lease executed in pursuance of the agreement.
Held, that there was not any consideration for
the agreement, and that ptf. was entitled to
the benefit of the former decree against deft.,
who was decreed to pay the costs.—Patten vy.
Wallace, Long. & T. 470. (H.E.)—[Affd.: 12
CL. & F. 491. ]

2. By a lease executed in 1747, a member
of the Incorporated Society demised to it
ground, at a rent of 5s., and covenanted to
renew the lease for ever. The Society cove-
nanted to build and maintain upon the demised
premises a house fit for the “reception and
education of twenty boys and twenty girls, to
be nominated by the Society, according to the
true intent and meaning of their charter.”
Proviso for re-entry, if the Society should not
continue to educate twenty boys and twenty
girls, “ according to the true intent and mean-
ing” of the indenture. Up to the year 1819,
the Society kept up a female Protestant board-
ing-school on the premises. After that they
gave it up, and kept a day-school, to which
R. Catholics were admitted. In 1830 they
demised the school-room and land to a person
who erected a new house, fit for a day-school
merely, and used the rest of the premises for
farming purposes. Held, that as the charter
gave them power to make bye-laws, those acts
were not breaches of the covenant, and formed
no ground for refusing a specific performance
of the covenant for renewal, although the
charter was expressed to be granted for the
instruction “of the children of the Popish
natives in the principles of the Protestant
religion ;” the Court considering that the mode
of instruction was left to the discretion of the
members of the Society.—Zhe Incorporated
Society v. Rose, 31. E. R. 257. (C.)

[LEASE.]

 

Renewal.

3. The habendum of a lease was:—“ To have,
&e., to T., his heirs, &c., for and during the
natural life and lives of J., W. and E., or the
longest liver of them, or whatever life or lives
shall for ever or hereafter be nominated.”
The lease did not contain any formal covenant
for renewal.

Semble—The habendum amounted to a co-
venant for perpetual renewal—Sheppard v.
Doolan, 3 Dr. & War. 1. (C.)—[See s. u., 4
I. E. R. 654; Fl. & R. 598. (R.]

4, Lease for three lives, and the survivor,
and for the lives and life, &c., as should at any
time thereafter be nominated for ever, accord-
ing to the covenants and agreements? for that
purpose thereinafter contained. The lease
did not contain an express covenant by the
lessor to renew, but the lessee covenanted,
within six months after the decease of each of
the lives therein, and of each person who
should be thereafter nominated, to pay, in the
nature of a tine for each person so dying, to
the lessor and his heir, a peppercorn, if de-
manded. Powers of distress and entry, if the
fine should be in arrear, were reserved to the
lessor and his heirs. The lessor covenanted
that the lessee and his heirs, paying the rent
and fines, should quietly enjoy, according to
the true intent, &c. Held, a lease for lives
renewable for ever.—Chambers v. Gaussen, 7
I. E.R. 575; 2 Jon. & L. 99. (C.)

5. The Tenantry Act, and the local equity
of which it is declaratory, do not extend to
covenants by tenants to renew.

A. lease for lives contained a covenant to
take renewals; the landlord did not enforce
it against the tenants in possession when the
c.q. vient died. Several years after, the pre-
mises, much deteriorated, were assigned to the
defendant. The landlord’s agent took a part
in the assignment, had the conveyance altered,
and engaged in a treaty te grant a new lease
at a reduced rent to the defendant, under cir-
cumstances which might lead her to believe a
renewal would not be enforced, and which the
Court disapproved of, though nothing fraudu-
lent was intended. Held, that the circum-
stances deprived the landlord of his right to
specific performance of the covenant.—Alder
v. Ward, 81. E. R. 350; 2 Jon. & L. 571. (C.)

6. A lease of 1799, after reciting that F.
had, by a renewal of a former lease for lives
renewable for ever, made under a covenant
for perpetual renewal, become entitled to the
premises, witnessed that F. demised to D. the
premises, to hold to him, his executors, &c.,
from, &c., for the lives therein named, “ and
for and during such other life or lives as shall
hereafter be added to the original lease;” re-
serving a yearly rent, and containing covenants
for quiet enjoyment, and further assurance;
but not for perpetual renewal, nor reserving a
renewal fine. In May 1852, V., on whom the
interest of F. had devolved, served notice on
D. to renew his lease, informing him that two
of the lives named in the lease of 1799 were
dead (but not naming them), and calling upon
him to nominate two other lives in their place,
Fines, &c. on

and informing him that in case he neglected
to do so, V. would decline to renew the lease.
In July 1853, D. furnished to V. a draft f. f.
grant of the premises for his approval, which
the latter refused, alleging that D.’s right to
renewal had been lost through laches. The
original lease had been renewed in 1828. A
petition having been filed by D. for a declara-
tion of his right to a renewal of the lease of
1799, for the lives to be named in each renewal
of the original lease—Held, that, independ-
ently of the question of laches, he was not
entitled to a perpetual renewal of the lease of
1799.

That he was entitled to have the lives named
in the renewal of the original lease granted in
the year 1828 inserted in the lease of 1799.—
Dempsey v. Vincent, 71. Jur. 350. (C.)

1. Lease for the natural life and lives of A.,
B., and C., and the survivor, &c., “and for and
during the natural life and lives of such other
person or persons as by virtue of the covenants
for renewal hereinafter contained shall from
time to time successively and for ever be added
during the demise.” Covenant by the lessor
that, ‘upon the death or failure of any of the
lives, and the nomination of the life of any
other person to be put in the stead of the per-
son so happening to die within six months
after,” &c., and on payment of a fine, he “shall
add to the term of the lease the life of the
person so nominated as aforesaid, in the stead
of the person so happening to die as afore-
said.” Covenant by lessee, within the six
months, to nominate some other person in the
place of the one so happening to die. Cove-
nant for quiet enjoyment “at all times during
the continuance of this demise.” Petition to
have the lease converted into a f. f. grant.
The respondent declining to take a case to
law upon the question, or to file a cause peti-
tion to try it, Held, that the petitioner was
entitled to have the lease converted into af. f.
grant; but, the question being doubtful whe-
ther the lease contained a covenant for per-
petual renewal, that each party should bear
their own costs up to and including the hear-
ing.—Ex p. Magennis, 6 I. C. R. 59; Magennis
v. Gore, 11. Jur. N.S. 422. (R.) .

 

VIIL. 3. Fines on, expenses of Renewal :
apportionment thereof.

2. A sub-lessee of a bishop’s lease demised
to the plaintiff, and covenanted to renew, and
to use his best endeavours to obtain a re-
newal from his immediate lessor, whose estate
he afterwards purchased. The bishop refused
to renew, except at a greatly increased fine,
which was paid. Held, that the sub-lessee
was bound to renew to the plaintiff, without
any contribution consequent on the increased
fine.—Lawder v. Blachford, Beat. Rep. 522.

(C.)

8. When a lease contains a covenant to
renew, the landlord cannot insist, as a condi-
tion for renewing, that the tenant shall pay
collateral debts.

In « renewal suit, if it appears that the

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Renewal. 531

tenant has been guilty of Jaches, he must in
general pay the landlord’s costs. If there
was not laches by the tenant, but the landlord,
on insufficient grounds, refused to renew, he
must pay the tenant’s costs.

A lease of lands in Ireland for lives renew-
able, dated in 1695, reserved the rent of £53
in lawful money of England, and a fine of
half a year’s rent on the fall of each life.
Held, that the rent and fines were payable in
Irish currency.—Fitzgerald vy. Carew, 1 I. E.
R. 346. (C.)

4. A. bequeathed leaseholds held under a
See, and other property, upon trust, for the
sole use of his daughter for life; then to the
use of her first son, and her heirs for ever.
The trustees renewed the leaseholds until she
attained age. Thenceforward she renewed
them from time to time, and paid large fines
for that purpose. After her death, her hus-
band filed against the remainderman a Dill
for contribution towards those fines. Held, that
since, upon the true construction of the will,
she was bound to keep those interests renewed,
and was only entitled to the surplus rents
after payment of the head rent and renewal
fines, the bill was unsustainable Trench v.
St. George, 1 Dr. & Wal. 417. (C.)

5. A., entitled to a bishop’s lease, sub-
leased to D., with a covenant that, if he
should at any time thereafter take a longer
term in the premises, or renew, he would,
within twelve months after renewal, and in
like manner upon every renewal or further
term of years, renew to D. A. renewed at a
heavy fine. His representative refused to
renew to C.’s representative without contri-
bution towards the fine. C.’s representative
filed a bill to compel a renewal. Held, that
A.’s representative was not entitled to con-
tribution, but was bound by the covenant to
renew with C.’s representative, whenever he
obtained a renewal.—Thomas v. Burne, 1 Dr.
& Wal. 657. (C.)

6. A. demised to B., for three lives, with a
covenant to renew from time to time on the
nomination of a life, and payment of a fine
within six months after the fall of each life.
Held that, in calculating the fines payable by
B. to A., six months were properly added to
each seven years.

B. sub-demised to C., for other lives renew-
able for ever, on payment of a fine for each
new life, provided that, if C. neglected to pay
the fine and nominate a new life within six
months after the fall of a life, C. should pay
a fine of £1 for each month during which he
so neglected. C. neglected to nominate a
new life, and did not pay the renewal fine
within the prescribed six months. Held, that
he must pay monthly fines, although the lives
in A.’s lease to B. had long before expired,
and B. had not obtained a renewal from A.—
In re Colthursts Minors, 4 I. E. R. 444; Fl. &
K. 515. (R.)

7, A. demised to B., for three lives, with
covenant to renew on the nomination of a
life and payment of a fine within six months
532 Fines, 3c. on
after the fall of each life. Held, that, in cal-
culating the fines, six months were properly
added to every seven years.

B. subdemised to C. for other lives renew-
able for ever on payment of a fine. Proviso,
that, if C. neglected to pay the fine and
nominate the new life within six months after
the fall of each life, he should pay a fine of
20s. for each month of neglect. On petition—
Held, that the person claiming under C., who
was a minor, and had not nominated the life
or paid the fine within the six months, was
not bound to pay monthly fines, though the
lives in the head lease had long before ex-
pired, and though A. had renewed to B.—Jn re
Colthursts, 5 I. E.R. 322; 3 Dr. & War. 35;
2Con. & L. 35. (C.)—[Varying, on the last
point, the Rolls decision, 4 I. E. R. 444; Fl.
& K. 515.]

1. A mesne landlord is entitled to renewal
fines, although he cannot grant his tenant a
legal estate, because all the lives in his own
Jease have expired.—In re Colthursts, 5 I. E. R.
322; 3 Dr. & War. 35; 2 Con. & L. 35. (C.)

2. A., tenant under the fee of lands for
lives renewable for ever, at a fine of £15 on
the fall of each life; B. being his sub-lessee
of the same lands for lives renewable for ever,
at a fine of £7. 10s. on the fall of each life in
each lease, and a penalty of one pound per
month for not renewing on the fall of each
life. B. purchased the fee. There was no
renewal by either party for about fifty years.
Held (overruling the opinion of the M. R., Fl.
& K. 515; 4 I.E. R. 444), that it should be
presumed that the parties had come to an
arrangement not to require renewals, or pay-
ment of the fines. :

The tenant being an infant, a petition
was presented for a reference to ascertain
what was due for renewal fines and penal
rent. Held, that the Court would not grant
such a reference upon petition, but would
require a bill to be filed.—IJn re Colthursts,
2 Con. & L. 35; 3 Dr. & War. 85; 51. E.R.
322. (C.)

3. When an immediate tenant, holding for
lives renewable for ever, is obliged to pay
septennial fines to the inheritor for a renewal ;
an under-tenant holding a similar lease is
bound to pay the mesne landlord septennial
fines on the same c. q. vie ; overruling the deci-
sion of the M. R. 1815.—Morton v. Archbold, 4
I. E. R. 457, n. (C.)

4. An outstanding legal estate is no answer
to the obligation of a tenant holding under a
renewable lease, to pay his renewal fines. If
his lessor hold under a renewable lease, and
has not obtained arenewal himself, the tenant
may require to see that the money paid by
him for his fine is applied by his lessor in
obtaining a renewal of the head lease.—ZJn re
Colthursts, 5 I. E. R. 322. (C.)

5. Upon a bill filed by a landlord against a
tenant, assignee of a lease for lives renewable
for ever, the lessee having covenanted that

[LEASE.]

 

Renewal.

he, or his heirs or assigns, would, within three
months after the fall of each life, nominate
another, and pay £11. 10s. renewal fine, pray-
ing that the defendant might be compelled to
take out a renewal (one of thec. g. we having
dropped more than forty, and another more
than ten years, and there being butone of them
subsisting), and pay the arrear of rent and the
renewal fines, and also the septennial fines
and interest, calculated as in the case of a
tenant’s bill for a renewal; and that, as the
defendant threatened to leave the country, a
writ of ne exeat might issue, marked for the
amount of the rent and fines, &c., so caleu-
lated. The plaintiff having moved for the xe
exeat— Held, as to the arrear of rent, that it
was properly recoverable at law, and, there-
fore, a ne exeat could not issue for it.

As to the renewal fines, that they also
being legal specific debts, were not properly
the subject for a ne exeat; and that their
being at all recoverable in equity must de-
pend on the question, as yet undecided,
whether equity will enforce the specific per-
formance of such a covenant, especially in
this case, having regard to the laches of the
landlord, and the apparently mutual aban-
donment of the covenant by both parties, for
a great length of time.

As to the septennial fines and interest, even
assuming that the plaintiff must have a decree
obliging the defendant to accept a renewal,
and pay the fines, it did not follow that such
a decree must give septennial fines and in-
terest; these being the compensation given
by the Court to a landlord, when the tenant,
as plaintiff, comes for a renewal, notwith-
standing the forfeiture at law, and deprives
the landlord of his legalright. Ifrecoverable
as damages for breach of covenant, they
should therefore be irrecoverable by suit in
equity ; besides, their being damages, and un-
liquidated, would of itself form a distinct
objection to issuing a ne exeat for them.

J., lessee for lives, by deed (in form of a
lease for same lives, reserving larger rent),
assigned the whole estate at law to O., who
assigned all his estate and interest under the
deed to W. After the assignment to W., the
rent having fallen into arrear, J. brought an
action against her to recover it, and was de-
feated by a plea that he had no reversion.
He then filed a bill against her, and prayed
that a ne exeat might issue, marked for the
amount of the arrear. Motion for the ne exeat
refused, as it was not clear that J. should
have a decree.—Alder v. Ward, 51. E. R. 367.

R.)

6. Under the 1 W. 4, c. 67, ss. 12, 14, the
Court has not jurisdiction to charge money
advanced for rent, or the costs of the land-
lord appearing in the office, and contesting
the sum due to him for fines upon the renewed
interest.—Jn re Leech, 9 I. E. R. 318; 3 Jon.
& L. 189. (C.)

7. The contributions of sub-tenants, under
leases with ¢. g. covenants, to renewal fines,
are to be calculated according to the propor-
tion which the annual value of the lands
Fines, Se on

comprised in each lease bears to the annual
value of the entire lands comprised in the
original lease at the time of the renewal.

Reference cannot be had to contemporane-
ous leases, to ascertain how such contributions
have been regulated on the estate.—Molony
vy. Scollard, 12 I. E. R. 93. (R.)

1. A previous renewal, by the tenant of a
See to his sub-tenant, recited the payment of
interest on the renewal fines, and contained
a t.g. covenant for renewal, besides a cove-
nant by the tenant to pay what fine or fines
the lessor should pay to the See. Held, that
the sub-tenant was bound to pay interest on
the renewal fines on obtaining the perpetuity,
under the 6&7 W. 4, c. 99, s. 1.

In order to entitle a tenant of an ecclesias-
tical lease to a renewal under any of the sta-
tutes; 3&4 W.4, ¢.87;4&5 W.4,c. 90;
or 6 & 7 W. 4, c. 99; he must have, or be
entitled to, a fully renewed lease.

Semble—Therefore, interest on renewal fines
is payable by sub-tenants on obtaining a per-
petuity under the 6 & 7 W. 4, c. 99, s. 1.

Semble—Interest is customarily payable on
renewal fines by sub-tenants of ecclesiastical
leases containing ¢. g. covenants to renew.—
Brabazonv. Earl of Lucan, 121. E. R. 432. (R.)

2. Lands held under a church lease were
devised in trust to pay the head rent and
renewal fines, and after payment thereof to
suffer annuitants to receive annuities there-
out, and subject thereto to a devisee, who
purchased the’ fee under the Church Tempo-
ralities Act, and gave a mortgage for the
purchase money. Held, that the annuitants
were not bound to contribute to the interest
on the mortgage.—Hilhouse v. Tyndal, 13 I.
E. R. 209. (C.)

3. A lease for lives, reserving a rent and
certain duties, or a sum of money in lieu of
duties, with a covenant for perpetual renewal
upon payment of a renewal fine, contained a
proviso, that if the lessee should not, within
three months after the fall of each life, pay to
the lessor or his heirs, &c., the renewal fine,
over and above the rent, fees, and duties, and
nominate a new life, the lessor might refuse
to renew; a covenant by the lessee to pay fees
and duties, sums of money in lieu of duties,
and renewal fine; andthat if it should happen
that the rent, fees; and duties, or other sums
of money thereinbefore mentioned to be paid
as aforesaid, should be unpaid for twenty-one
days after the days on which the same ought
to be paid, the lessee, his heirs, &c., should
lose and forfeit to the lessor, &c., one shilling
in the pound in the name of a penalty, and
so proportionably thereafter for a greater or
lesser time, whenever the same should be so
behind afterward; and a power of distress as
well for the rent, fees, and duties, and other
the sums of money to be paid for renewal, as
for the sums of money so to be lost and for-
feited; and aright of re-entry if the rent, fees,
and duties, or other the sums and penalties
above mentioned, or any of them, or any part
thereof, should be behind or unpaid. One

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Renewal. 533

life having dropped many years before, with-
out the renewal fine having been paid, on
petition for a f. f. grant—Hedd, that the lessee
was bound to pay the penalty of one shilling
in the pound on the renewal fine before the
grant should be executed.—Ex p. Shiel, 1 I.
C. R. 190. CR.)

4. A lessor having, in his answer to a bill
for a renewal, alleged breach of covenant by
the lessees as a defence, and having failed to
prove it, was ordered to pay the costs occa-
sioned thereby.— Vance v. Earl of Ranfurley, 1
I. C. RB. 321. (C.)

5. A. bequeathed the lands of K.(held under
a bishop’s lease, renewable every seven years)
and all his other property, being personal,
upon trust to pay the rents and other out-
goings of K. as therein, and to preserve the
interest in the lands, by keeping up the re-
newals; after giving legacies, he bequeathed
the residue of the lands of K., and the other
property, to his daughter, her executors, &c. ;
but in case of her death, under age and un-
married, over. On A.’s death, the daughter
was a minor, and made a ward of Court; and
the other personal estate not being sufficient
for payment of his debts, the greater part of
same were paid out of the rents of K., by the
receiver in the minor matter; renewals were
also obtained, and the fines paid in like manner.
The daughter died under age and unmarried,
and a remainderman took. Held, that the
personal representatives of the minor were
entitled to be paid the principal of such of A.’s
debts as were paid out of the rents of K.
during the minority, and which the other per-'
sonal estate was insufficient to discharge, with
interest thereon from.the minor’s death.

That the minor and remainderman were
bound to contribute to the renewal fines, in
proportion to the actual advantage they re-
spectively obtained from renewals.—Lanauze
v. Malone, 31. C. R. 854. (C.)

6. When there is a covenant to renew during
40 years, upon nominating a new life within
six months after the fall of each life, this does
not come within the Tenantry Act; and unless
the landlord is shown to have been in default,
there is no equitable right to renew. But if
the value of the premises be small, and it
appears beneficial to the minor to grant a re-
newal, the Court may, notwithstanding, direct
the Master to execute a renewal on behalf of
the minor, under the 11 G. 4, & 1 W. 4, c. 65,
nominating for each life that had dropped, a
life that was in being within six months after.
The principle of calculation for renewal fines
was: “One fine due at the end of six months
after the fall of each life, and a septennial fine
due at the end of every seven years, with
interest on each from the time when it became
due, at five per cent.” The guardian of the
minors was declared entitled to the costs of
appearing.—In re Cootes, 7 I. Jur. 234. (R.)

7. A., being tenant for life of lands held
under church leases, and these lands having
been sold by order of the I. E. Court, the
534 Fines, 5c. on

duration of A.’s life interest in the purchase-
money was calculated by a notary, pursuant to
order of the Court, at 9} years from the date
of the inquiry. This term would expire in
1862. The Chief Commissioner ruled that the
life estate should be recouped out of the fund,
representing the inheritance, the amount of
renewal fines in proportion to the length of
time that such renewals respectively should be
found to outlast the estimated duration of A.’s
life estate. A. had renewed in 1841, and the
renewal would cover the estimated duration of
his own life interest. eld, the life estate
should contribute in proportion to the esti-
mated enjoyment of the tenant for life.—Jn re
Knox’s Estate, 21. Jur. N. 8. 323. (LE.C.)

1. A lease for 17 years contained a covenant
by the lessors to renew, as often as they
should obtain a lease of the lands, on the
terms of the lessees paying all rent and
arrears of rent then due to the lessors, and
reimbursing the lessors the renewal fines
which, from time to time, should be payable
and paid by the lessors to their immediate
lessors, with interest thereon from the time or
times the several fines should be paid. After
the term expired, rent and fines accrued due,
and the lessors’ interest was sold in the I. E.
Court. On a petition for renewal, filed against
the purchaser alone— Held, that the lessee was
entitled to a renewal on the terms only of pay-
ing all the arrears of rent and fines due to the
lessors and the purchaser.

That the suit was defective, as the surviving
lessor had not been made a party to it.

The Court decreed a renewal on payment
into Court of the arrears of rent, renewal fines
and interest, and ordered the petitioner in the
I. E. Court, and the surviving lessor, to be
served with notice of the proceedings, on a
reference directed by the decree to ascertain
the amount of the rent and fines.

Quere—Whether the surviving lessor or the
purchaser was entitled to the fines which
accrued before the sale and conveyance ?—
Steele v. M-Call, 71. C. R. 122. (R.)

2. The contributions to renewal fines of the
tenant of a college lease, and his sub-tenant,
with at. g. covenant for renewal, are in pro-
portion to the annual value of their respective
interests. ,

In calculating the value, the rent payable by
each is to be deducted.

If there were buildings on the land at the
date of the sub-lease they are to be taken into
account in ascertaining the value.

Quere—If the buildings have been after-
wards erected ?—Orr v. Littlewood, 111. C. R.
502; 61. Jur. N.S. 301. (R.)

3. A reversioner in a lease for lives renew-
able for ever, who, in reply to a request from
the tenant to execute a renewal, postpones
the execution, for his own convenience, is not
entitled to require septennial fines which
might otherwise become due in the interim ;
nor is he entitled to impose upon the tenant
any condition respecting the tenant making

[LEASE.]

 

Renewal.

out title to the lease before the time at which
he will be prepared to execute such renewal.

It is not necessarily fraudulent on the part
of an equitable tenant for life of renewable
leaseholds, to require the renewal to be made
to him, without mentioning the settlement
which vests the legal estate in trustees.—Allen
vy. Aldworth, 131. C. R. 190. (C.)—[Affirmed on
appeal: 11 H. L. Cas. 549; 10 I. Jur. N.S.
321.

4, £800 was, by agreement between the
tenant for life, and the tenants, and with the
sanction of the Court, paid to the credit of
the matter, in full for all renewal fines and
interest, in respect of a lease for, lives’renew-
able for ever, dated the 2nd day of Jan. 1699,
and of which no renewal had ever been granted.
A condition of sale was inserted on the rental,
that the purchaser should execute a renewal
to the tenants. eld, that as the renewal was
the act of the Court, and as what,wastlost to
the inheritance by the renewal was restored
by giving it the £800, which was added. to the
corpus of the fund, the personal representative
of a deceased tenant for life was,not entitled
to any part of the £800.

Semble—The personal representatives of
parties who have not executed a renewal
have no claim for fines upon a subsequent
renewal. — In re Tibeaudo’s Estate, 14 I. C. R.
822; 81. Jur. N. 8. 339. (L.E.C.)

5. If a lease for lives, with a covenant for
perpetual renewal, imposes a penalty on the
tenant for not renewing, the landlord is not
entitled to septennial fines in addition to the
penalty; nor is he entitled to elect between
the septennial fines and the penalty.— Ware v.
French, 141. C. R. 584. (R.)

6. In 1782, a lessee for lives renewable for
ever demised the lands for the same lives;
and covenanted that, on the death of any
of the lives, he would, within six calendar
months, add and renew with the landlord of
the lands the life of some other person; which
life should, before the renewal, be agreed to
and approved of by the sub-lessee, his heirs,
or assigns; that, as soon as conveniently could
be, timely notice of the renewal should be
given by the lessee, his heirs and assigns, to
the sub-lessee, his heirs and assigns. It was
further covenanted that then the sub-lessee
should, within one calendar month after such
renewal and notice, pay to the lessee, his
heirs and assigns, a renewal fine over and
above the rent and all arrears; and that,
upon such payment being made, the lessee,
his heirs, &c., should, immediately after, add
and renew the same life to the term of the
lease that he or they so renewed with the
head landlord ; and in like manner, from time
to time, successively for ever, &. The sub-
lessee covenanted to pay the rent and re-
newal fine within one month after the renewal
by the head landlord. In 1820, there were
made of the lease and sub-lease renewals, the
last life in which died in 1837. In 1840, a
further renewal of the head lease was made ;
but no notice of the nomination of the new
lives, or of the renewal was then given to the
Right to Renew,

sub-lessee’s representative. In 1855, the re-
spondent purchased the lessee’s interest, and
shortly afterwards informed the petitioner, in
whom the sub-lessee’s interest was vested, of
his purchase. Since 1840 no renewal of the
sub-lease had been made. On a petition for
a f. f. grant—Held, that no septennial fines
were payable by the sub-lessee.

That interest on the fines payable by the
sub-lessee was to be calculated from the time
when he received notice of the renewal of the
head lease.

The principle on which septennial fines are
payable stated.

A purchaser from a lessor, who is bound to
grant a renewal, is entitled to those renewal
fines only which accrued after his purchase.—
De Veux v. Mara, 151. C. R.16. (R.)

1. A lessee under a lease for lives renew-
able for ever, had a power of nominating the
lives; and in a renewal, described ac. qg. v. so
inaccurately and ambiguously that it was un-
certain to which of two persons he referred.
One of them died in 1845, and the other in
1858. In a suit for a renewal, the lessor
claimed fines from the former date, the lessee
tendered them from the latter. Held, that
the fines should be calculated from the earlier
date, as the difficulty and obscurity were due
to the lessee’s default.— Colclough v. Smyth, 15
I. C. R. 396. (C.A.)—[Affirming Rolls deci-
sion: zbid, 347.]

2. A., seized of lands for three lives, renew-
able for ever, leased it to B. for 99 years,
provided the lives (those for which the lessor
held) therein named should so long live. The
lease contained this covenant for renewal :—
“That as often as the said A., his executors,
&c., shall, after the death of the lives then in
being, renew the lease of said premises, the
said B., his heirs, &c., shall well and truly pay
unto the said A., his heirs and assigns, one
whole year’s rent; in consideration whereof,
the said A., his heirs, &c., shall, from time to
time, renew unto the said B., his executors,
&c., the lease of the premises demised, for 99
years, determinable on the lives so to be in-
serted ; at and under the rents and covenants
in said deed of demise expressed; the true
intent and meaning of said parties to said
deed being, that the said B., his executors,
&c., on payment of one whole year’s rent as
above said, shall and may have the term of
99 years of the premises, under the rents,
covenants, and agreements expressed, for ever
in being and undetermined.” Held, that the
representatives of B. were bound to pay a
renewal fine on the fall of each life.

Although covenants are not to be construed
by the acts of parties, yet their conduct in
relation to them may evidence the existence
of a new agreement.—LEx parte Pilkington, 4 I.
Jur. N. 8. 102. (R.)

3. Interest on renewal and septennial fines
is to be calculated at £5 per cent.—Jn re Ken-
nedy, 17 I. C. R. 162. (R.)

4. Lessee for lives, tendering the proper
amount of fines, applied, in 1844, for a renewal

[LEASE.]

 

Forfeiture of. 535

to which he was entitled. The landlord’s
solicitor desired him to wait till the landlord
returned from abroad, but to be ready to
prove his title in two months. Owing to the
landlord’s delay, no renewal was granted for
16 years; nor was any title proved, though the
lessee had the means of doing so. Lessee
then applied again for a renewal. Held, that
he was entitled to obtain a renewal on pay-
ment of the fines due in 1844; and that there
was not in the Irish Septennial Act anything
to alter that conclusion. — Aldworth v. Allen,
11 H. L. Cas. 549; 10 I. Jur. N. 8. 321.—
[Affg., 181. C. BR. 190. (C.)]

 

VII. 4, Right to Renew: how forfeited:
Relief against Forfeiture.

5. A demand of renewal fines, made by the
landlord’s law agent without his direction, but
subsequently adopted by him, is.sufficient.

The interest under a lease for lives renew-
able for ever was covenanted to be conveyed
to A. and his heirs, to B.’s use for life ;, re-
mainder to trustees for 500 years ; remainder
to B.’s first and other sons in tail. B. died.
An elegit creditor of C., first tenant in tail,
went into possession. Held, unnecessary to
demand the renewal fines of A.; of the trus-
tees of the term; or of the elegit creditor in
possession. A demand upon C. alone sufficed.

The owner of a specific incumbrance affect-
ing a lease for lives renewable for ever may
maintain against the landlord and tenant a
bill for a renewal; but, guoad the right to the
renewal, stands in the tenant’s place, and, is
bound by his acts.— Watkins v. Lloyd, H. & J.
832. (H.E.)

6. A demise of land, with the bog and
commonage thereunto belonging, does not give
the tenant a right to cut turf for sale.

A deed is not to be construed by the sub-
sequent acts of the parties.-Burrowes v. Hayes,
H. &J.597. (E.E.)

7. A renewal decreed, notwithstanding a
delay of four months after the notice to renew
had been served, under the Tenantry Act.
The notice, however, had, insisted on a term
to which the landlord was not entitled; and
he, after promising to answer the tenant’s
inquiries respecting the title, delayed. The
renewal was decreed, however, with costs to
be paid by the plaintiff.— Moore v. Sayers,
Beat. Rep. 530. (C.)

8. V., lessee for lives renewable for ever,
settled his estate, making himself tenant for
life. The lives dropped. In 1809, the land-
lord, X., brought an ejectment. The sum-
monses were served on V., and on the trustees
of his marriage settlement. V. took defence,
and X. abandoned the action, and filed against
V. alone a bill praying that V. should be com-
pelled to elect whether he would accept a
renewal or not; and, if he did not elect to
accept it, might be obliged to surrender pos-
session to X., who obtained a conditional
decree on sequestration; and in 1811, was
put into possession by injunction.

X., though a lessee for lives, had not renewed
536 Right to Renew,

from a period antecedent to 1809. His right
to a renewal being disputed, he only obtained
one, in 1812, after a suit.

Early inthat year V. died. The remainder-
man tendered the arrears of rent, and sought
a,renewal—the fine being nominal. Held,
that they were entitled to 4 renewal; the
delay having been excused, and the decree in
1811 not having operated as a demand under
the Tenantry Act, even if it applied; but
that it was inapplicable, there not being any
fine payable.—Armstrong v. Jessop, Beat Rep.
515. (C.)

1. Bill to redeem a lease of 1798, which
contained as well the usual clause of distress,
as a proviso that, in case of no sufficient dis-
tress, the landlord might re-enter, without
making any previous demand.

In 1823, the landlord obtained judgment by
default in an ejectment for non-payment of
rent; made the usual affidavit of rent due;
sued out an habere; and, upon its execution,
went into possession on the 26th May 1824."

All interested parties not having been
served, this proceeding was considered defec-
tive as a bar under the Ejectment Statutes.
The tenant brought an ejectment on the title,
which the landlord defended successfully by
relying on his right to retain possession under
the clause of re-entry in default of sufficient
distress.

The tenant, having been surprised by this
defence, brought another ejectment on the
title, and gave evidence of sufficient distress.
This distress, however, consisted mainly of
growing crops which, not having been legally
distrainable in 1798, were deemed without the
contemplation of the parties to the lease.
Therefore the tenant was again defeated in
E. T. 1827.

In Sept. 1827, he filed this bill to be relieved
against the forfeiture, and to redeem. Held,
that he was entitled to relief; the landlord to
account for the profits of the land while in his
possession, and to be paid the balance due to
him for rent, interest, and costs.—Canny v.
Hodgens, H. & J. 769. (E.E.)

2. A., entitled to premises under a bishop’s
lease, demised them to C. for 20 years, with a
t. g. covenant torenew. This lease provided
that if C. did not pay, or cause to'be paid to
A., within three months after A. should obtain
a renewal of his lease, and after notice thereof
to C., a proportionable part of the renewal
fine and of the costs attending such renewal,
then and from thenceforth C. should be for
ever thereafter barred from any right to re-
newal; and A. might refuse to renew. C.’s
personal representative filed a bill to renew.
Held, that since the notice was one of facts
peculiarly within the landlord’s knowledge, its
service must be proved so clearly as to satisfy
the Court of the landlord’s intention to insist
on the forfeiture; and that, though it was
strongly suspected that the notice did reach
the tenant, a Court of Equity could not work
out a forfeiture of a tenant’s right of renewal
on mere suspicion.—Lawless vy. Grogan, 1 Dr.
& Wal. 53. (C.)

[LEASE.]

 

Forfeiture of.

3. The assignee of a lease for lives renew-
able for ever, upon the payment of-a fine for
every life added, confessed judgment, was dis-
charged as an insolvent, and died. One of the
lives in the lease being dead for some years,
the landlord served notice upon the heir of the
original lessee, a judgment creditor of the in-
solvent in possession under an elegit, and the
assignee of the insolvent, who had not been in
possession of any part of the premises, calling
on them to renew. No renewal was taken out,
and no tender made of the fine. Seven years
afterwards, another judgment creditor of the
insolvent, who had obtained a decree for a
sale of the lands for payment of his judgment,
with the sanction of the Court;in that suit,
filed a bill for a renewal. Held, that he was
entitled to institute such a suit. That service
of the notice was not sufficient to create a
forfeiture of the right to a renewal.

An assignee of an insolvent who is not in
possession of the premises, is not an “ as-
signee,” within the meaning of the Ist section
of the Tenantry Act, from whom to demand a
renewal fine.

The landlord having, in the course of a ne-
gotiation for a renewal, required production
of the assignment by the original lessee, which
was missing—Held, that that alone would
have prevented the forfeiture.

In such a suit, a judgment creditor of the
party entitled to the lease is a competent wit-
ness for the plaintiff.

Suppose an actual assignment had been
made of those very lands for particular pur-
poses, reserving the right of the assignor to
the lands, when those particular purposes had
been satisfied, would the service of a notice
(the notice from the landlord to the tenant,
required by the Tenantry Act) on such an as-
signee deprive the assignor of his right to
insist on the benefit of the covenant for re-
newal? If it would not, then, how can an
assignment which, although general in its
terms, is made for a particular purpose, namely,
the payment of debts, and which leaves in the
party assigning a right to any surplus that
may remain after that purpose is satisfied,
have a greater effect than an assignment of
those very lands, which was expressly declared
to be for a particular purpose, would have
had? It appears to me that it might as well
be said that the assignee of an insolvent could
make a good tenant to the pracipe-—[Plunket,
C.J—Smith v. Shannon, 3 I. E. R. 452, 467. (C.)

4, In what cases non-payment of rent is not
per se conduct so fraudulent on the tenant’s
part as to disentitle him to a renewal.

A notice demanding rent-fines, septennial
fines, and interest, to be paid within a limited
time; and stating that the landlord would not
renew if these payments were not made, is a
sufficient demand within the Tenantry Act,
though septennial fines were not payable, and
though the time limited was less than reason-
able.

In accounting for delay, and considering
what is reasonable time for complying with
landlord’s demand to renew, the Court must
regard all the circumstances of the case. In
Right to Renew,

cases of long delay it may give relief, if the
delay has arisen from ignorance or mistake,
not wilful, on the tenant’s part, or from the
landlord’s fraudulent or other improper con-
duct.—M‘Donnell v. Burnett, 4 I. E. R. 216.
(E.E.)

1. Respecting middleman’s right to septen-
nial fines—See |Wilsonv. St. Leger, and Morton
i Archbold, 4 I. E. R. 462, 2.; Fl & K. 539, x.

C.)

2. Quere—Touching Lord Eldon’s dictum in
Fitzsimon vy. Burton (Finlay on Ren. 817),
respecting a tenant losing his right to renew
if all the lives drop before he takes any step
to enforce a renewal.— Butler v. Lord Portar-
lington, 4 J. E. R.1; 1 Dr. & War. 20; 1 Con.
&L.1. (C.)

3. A lease for lives, containing a covenant
for perpetual renewal, with a proviso, that if
the renewal fine was not paid within twelve
months, the lease should be void, vested as to
one moiety in several persons; and as to the
other moiety in one person. A partition had
taken place between the owners of the moie-
ties, which were held in severalty. In 1794 a
renewal was granted, to which all those in-
terested in the lease were parties, but which
was not executed by them. In 1804 the owner
of the one moiety filed a bill against the
owners of the other, claiming the benefit of
the renewal, and for an account of rents re-
ceived by them. In 1813 the renewal was
registered ; the memorial named the lives. In
1817, the owner of the one entire moiety
granted an annuity charged on it, and the
memorial executed by the grantor mentioned
the names of the lives in the last renewal.
In 1816 one life dropped. In 1822 the owner
of the entire moiety wrote to the lessor’s
agent, requesting to be informed who were
the lives in the last renewal, and whether any
and what fine was due? Eighteen months
after, he wrote again repeating his inquiry,
and alleging his ignorance of the contents of
the last renewal. The agent in reply stated
‘the death of one of the lives in 1816, and that,
when the whole fine was tendered to him, he
would grant a renewal. One of the owners
of the other moiety, who acted as agent of all
the other owners, in 1824, applied to the
‘lessor’s agent to know what his moiety of the
fine came to, and being informed of it, paid a
moiety. The other moiety was not paid, and
the lessor’s agent returned the moiety that
had been paid, and took back the receipt given
for it. In 1832, another life having dropped,
the owner of the entire moiety tendered the
entire amount due, and filed a bill against
the landlord, claiming a renewal, making
the owners of the other moiety defendants.
An answer was put in by the landlord, alleg-
ing that the right of renewal was forfeited by
non-payment of the fine. The plaintiff in
that suit died, and the suit was never revived.
In 1840, a third life having dropped, the
owners of the other moiety filed a bill for
renewal, making the owner of the undivided
moiety a defendant. Held, that the letter of
the lessor’s agent was a demand of the fine

[LEASE.]

 

Forfeiture of. 537

within the Tenantry Act, and that the right
of renewal was lost by non-compliance with
it. That the tenant’s conduct was such as, if
no demand had been made, would have disen-
titled him to a renewal.

The 19 & 20 G. 8, c. 30, commonly called the
Tenantry Act, is a remedial Act, because it
relieves against a mere neglect, which at com-
mon law caused a forfeiture.

Semble—That the death of the last c. g. vie,
without any step taken by or on behalf of the
tenant, will not preclude the tenant from
relief in equity. — Butler v. The Earl of Por-
tarlington, 41. E. R. 1; 1 Dr. & War. 51; 1
Con. & L. 1. (C.)

4. The fact of a lease being in settlement
does not alter the landlord’s right to the
benefit of a forfeiture of the right to renewal
by the tenant’s laches.

If, after a forfeiture has been incurred,
the landlord declare himself willing to renew,
upon the condition of the tenant’s using ex-
pedition, this waiver does not set the matter
open again ab initio; and the tenant must use
the utmost diligence in taking advantage of
it, otherwise his right will be barred.

Where a forfeiture is already incurred, and
the matter has been put into the hands of the
landlord’s law agent, communications on legal
matters by his land agent will not bind him.

When a renewable lease is vested in trustees,
upon trust to pay rent and renewal fines, they
are guilty of a flagrant breach of trust, if they
permit the tenant for life to take and use the
rents, and neglect to take out renewals.—
Townley v. Bond, 4 Dr. & War. 240; 2 Con. &
L. 893. (C.)

5. An estate, described as a freehold estate
for three lives, with covenant for perpetual
renewal, was sold under a decree. In the
original lease, dated the 21st July 1777, the
foundation of the title, there was not any
express covenant for perpetual renewal, but
the habendum was to the lessee, his heirs and
assigns, “for and during the natural lives of
J. and C., or the longest liver of them, or
whatever life or lives should for ever there-
after be nominated or appointed, added or
inserted on the back of said indenture, or a
label affixed thereto (paying for every life a
peppercorn fine, if demanded); yielding and
paying unto R. L., the lessor, his heirs and
assigns, the yearly rent of,” &c. In 1836, the
son and devisee of the original lessor execu-
ted to the assignee of the original lessee a
renewal for three new lives, in which the
original lease of 21st of July 1777 was recited
as containing a covenant for perpetual re-
newal; and the renewal was expressly made
“in pursuance and performance of said cove-
nant.” It did not contain any covenant for
renewal, but the habendum was similar to that in
the original lease, with the exception that the
word “and” was used instead of “or.” On
reference of title, the Master reported against
it, for that the original lease did not convey
a freehold estate for three lives, with cove-
nant for perpetual renewal. On exception to
this report—Held, that the report should be
confirmed, and the exception to it overruled,

68
538 Right to Renew,
with costs.—Sheppard v. Doolan, 4 I. E. R.
654; FI. & K. 598. (R.)—[See s. 8 Dr. &
War. 1.]

1. When a lease had been made with a
covenant for perpetual renewal, the interest
of the lessor had become vested in a lunatic.
Some of the lives having dropped, an applica-
tion was made in the lunacy matter for a
reference to the Master to inquire and report
as to the liability of the lunatic to renew the
lease. The application was granted, and the
right of the applicant established. Held, that
the costs of the petition, and of all the pro-
ceedings, should be borne by the applicant.

The proper course for a party to adopt in
such a case is, to apply at first to the com-
mittee of the estate of the lunatic, before he
himself brings forward any application to the
Court.—In re Doolan, 3 Dr. & War. 442. (C.)

2. In a suit for a renewal, it appeared that
in July 1821, the landlord, upon the death of
one c. q. vie, the other two being still in esse,
served the tenant with a copy of a printed
notice, not addressed to him in particular,
but to all his tenants generally, calling on
them, before the 10th August, to show their
right to a renewal, and to pay their rents and
renewal fines, and to have their renewals com-
pleted, otherwise that he would decline to
renew. The tenant entered into a communi-
cation with the solicitor of the landlord as
to the renewal of his lease, and in Jan. 1822,
a draft of renewal was served by his soli-
citor upon the solicitor of the landlord for his
approval. The case made by the bill was,
that the solicitor for the landlord stated that
he had not then obtained a renewal to him-
self, and that the renewals would be executed
as soon as he obtained such renewal; that the
solicitor of the landlord did not take any
steps to have the renewals executed, but kept
the drafts in his possession; that since that
time no further application had been made
by or on behalf of the landlord to the tenant,
to take out the renewal; but that matters
remained in that state until 1830, when the
tenant tendered the fine. The case, as it ap-
peared on the evidence for the plaintiff, and
as relied upon by him at the bar was, that the
landlord’s solicitor claimed the right of pre-
paring the renewals, and undertook to prepare
them, but did not; and that the solicitor for
the tenant, at various times between 1822 and
1830, made repeated applications to the soli-
citor of the landlord for the renewal, but un-
successfully. It was proved that the landlord
had obtained a renewal of his lease before he
served the notice of July on the tenant; and
that his land agent made frequent verbal
applications to the tenant in the years 1821
and 1822, to take out bis renewal, which the
tenant declined to do, on the ground that he
was not bound so to do. The bill was dis-
missed with costs.

The substantive duty of the tenant is the
payment of the fine; and to this extent the
furnishing of the draft of the renewal is avail-
able to him, that if he furnishes it bona fide
to enable him to fulfil the essential obligation

[LEASE.]

| tative of the lessor.

 

Forfeiture of.

of paying the fine, a delay in returning it will
prevent the time running against him, so long
as that delay occurs by the default of the
landlord, but it will not exempt the tenant
for any length of time from looking after his
renewal,—Cullen v. Leonard, 5 I. E. R, 184.
(E.E.)

3. Lease for three lives, with covenant for
perpetual renewal. One life had dropped in
1791, and another in 1838, and there had been
a neglect to renew until August 1843, when
a petition was presented under the Statute
to obtain a renewal from the minor represen-
The petition was dis-
missed.— Sheehy v. Bradshaw, 6 I. E. R. 397.
©.)

4. A. and C. being seized in fee, as co-
heiresses, of the lands of Z., and other lands,
A., on her marriage with H., by indenture of
1730, settled her moiety on H. for life, with
remainder to his first and other sons in tail
male; and thereby H., and A., his wife, were
empowered to demise or join with the owner
of the other moiety in demising the settled
land for three lives, or any number of years
determinable on three lives. In 1732 H., A.
his wife, and C., demised to B. and his heirs,
the lands of X., for three lives renewable for
ever, and covenanted to warrant and defend
the premises to B. and his heirs, freed from
all former gifts, grants, uses, entails, and other
charges whatever, by them theretofore made.
In 1757, on the marriage of the son of H.,
a partition by writ was made between H.
and C., and the lands of X. were allotted to
H. subject to the lease to A., and were, with
the consent of the son, conveyed by C. to
H. subject to the lease. Afterwards H. and
his son suffered a recovery of the lands, and,
by deed of August 1775, settled them to the
use of H. for life, remainder to the son for life,
remainder to his first and other sons in tail
male. H. died, having by his will devised and
bequeathed all his unsettled real and personal
property to his son whom he appointed as his
executor. C. also died, leaving the son of H.
her heir-at-law, and as such he became en-
titled to considerable real estates belonging to
C. All the lives in the lease of 1732 having
died, he refused to renew it, and brought
an ejectment on the title for the recovery of
the lands thereby demised. The plaintiff there-
upon filed his bill, charging that the son of H.,
having derived a considerable estate in right
of, and as heir to C., was bound to make good
her covenants in the lease of 1732, and pray-
ing for a renewal of the lease of 1732, or for
compensation out of the devised estates of H.
and of C., and for an account of the estates
he possessed as heir of C. The Court decreed
a renewal.—Beere v. Cavendish, 5 I. E. R. 472.
(E.E.)

5. A. demised to B. for three lives, with
covenant that A. should renew, from time to
time, on the nomination of a life and payment
of a fine within six months after the falling of
each c.g. vie. Held, that in calculating the
fines payable by B. to A., six’ months were
Right to Renew,

properly added to each seven years. B. sub-
demised the same premises to C. for other
lives renewable for ever, on payment of a fine
for each new life; with proviso that in case
C. should neglect to pay the fine and nominate
a new life within six months after the fall of
ac. q. vie, he (C.) should pay a fine of 20s. for
each month during which he should so neglect.
Held, that C., not having nominated a new
life, or paid the renewal fine, within the pre-
scribed six months, was bound to pay monthly
fines, although the lives in A.’s lease to B. had
long before expired, and although B. had ob-
tained a renewal from A.— Zn re Colthurst, 4
I. E.R. 444; FL & K. 515. (R.)

1. A., being tenant for lives renewable for
ever, at a fine of £15, payable on the fall of
each life; and B. being his sub-lessee under
two sub-leases for lives renewable for ever, at
a fine of £7. 10s., payable on the fall of each
life in each sub-lease, and under a penalty of
£1 per month for not renewing on the fall of
each life; B. bought the fee. Neither A. nor
B. renewed for a period of about fifty years.
Semble—The presumption is, that an arrange-
ment had been made that renewals or payment
of the fines should not be required.

Penalties, when incurred, must generally be
paid by the tenant who seeks a renewal.
Circumstances may occasionally take a case
out of this rule.

Semble—That the fact of the legal estate not
being in the landlord does not disentitle him
to any fines or penalties. — Jn re Colthursts, 5
I. E. R. 322; 3 Dr.& War. 35; 2 Con. & L. 35.
(C.)— [Revg., 4 I. E. R. 444; Fl. & K. 515.
(R.))

2, A., seized of lands under a lease for three
lives renewable for ever, demised for the same
lives to B., with a covenant for perpetual re-
newal: No renewal fine was payable. There-
fore the case was not within the Tenantry
Act. The covenant was to renew upon pay-
ment of all arrears of rent, within twelve
months after the death of any c. g. vie nomi-
nated in the lease or futurerenewals. Proviso
that the lives to be nominated by B. should
be the same inserted in the renewals which A.
himself should obtain, and a covenant by A.
to keep his lease renewed, and give notice to
B. within three months of each renewal, to the
end that B. might then apply to A. for such
renewal, at any time within three months after
such notice; and that A. would, thereupon,
upon payment of all arrears of rent, renew to
her; provided that if B. did not pay all arrears
within twelve months after the death of the
nominee for the time being, the covenant
should be void. Two of the c. qg. vies died in
1799 and 1811, and there was not a year’s
arrears of rent due after either of their deaths;
nor did A. then obtain any renewal to himself.
Very large arrears of rent were afterwards
suffered to accrue. In 1828 A. obtained a re-
newal. There was then six years’ rent due,
but all arrears were paid, and a renewal de-
manded by B.’s representatives within twelve
months after that. Held, that the covenant to

[LEASE.]

 

Forfeiture of. 539

renew was not forfeited under those circum-
stances, and that the mere neglect to pay his
rent, although gross, would not disentitle the
tenant to relief in equity, and a renewal was
accordingly decreed

The covenant to pay the rent in the above
lease having become useless, and the remedy
by distress dangerous, it being impossible to
avow generally under the Statute, for want of
a reversion, the landlord brought an eject-
ment for several years’ arrears of rent, to
which the tenant took defence, and gave the
landlord notice that he relied on the point of
law that there was no reversion. Held, that
relying on this technical defence to defeat the
landlord, was not such misconduct as would
disentitle the tenant to relief in equity on the
covenant for renewal.

Costs cannot be given to a defendant who
sets up a defence that fails; but from the
conduct of the tenant in this case, and the bill
containing an unproved imputation against
the landlord, the specific performance of the
covenant was decreed without costs——Fitz-
gerald v. O’ Connell, 6 I.E. R. 455; 1 Jon. & L.
134. (C.)

3. The heir of a trustee of the lessee’s interest
in a lease of lives renewable for ever, having
been applied to to accept a renewal to him,
refused to execute the conveyance. Held, that
the Trustees Act, 11 G.4,&1 W. 4, c. 60, s.
8, did not extend to such a case.—Fitzgibbon
y. Lewis, 61. E. R. 560. (C.)

4. Upon a lease for lives, with covenant for
perpetual renewal, more than one year’s rent
being due, judgment in ejectment was ob-
tained, and an Aabere executed. By arrange-
ment, bills drawn at three months by the
tenant were received, by the Master’s direction,
on the landlord’s part, who was a minor, and a
ward of Court, in payment of the rent, with
a promise that, if the bills were not paid, the
forfeiture was to be complete. They were not
paid. Held, that the arrangement was bind-
ing, and that ptf. would have been entitled to
relief, if they had been paid when due; but
that the Court had not power to decree re-
demption, since they had not been paid.

Permissive waste by the tenant of a mansion
is not a sufficient ground for refusing a re-
newal.— Mulloy v. Goff, 11. C.R. 27; 31. Jur.
25. (C.)

5. A., seized in fee, by registered deed con-
veyed lands upon trust to sell, and pay debts
and incumbrances: the residue to himself.
Afterwards, in 1782, A. for value, by registered
deed, demised those lands to B. (who did not
appear to have had notice of the trust deed)
for lives renewable for ever, subject to a then
subsisting lease; and reserved a rent equal to
that payable under the sub-lease. In 1789 the
lands were sold to N. under a decree in an
administration suit instituted, before 1782, by
a judgment creditor of a former owner against
A. and his trustee, who joined in the convey-
ance to N. It was not shown that A. had
been served with subpeena in that suit before
540 Right to Renew,

granting the lease of 1782, and did not appear
therein till afterwards. N.,when he purchased,
had not notice of that lease. The purchase-
money was applied in paying incumbrances
created before 1782. The last life in the lease
of 1782 died in 1835. The sub-lease deter-
mined in 1839. Shortly afterwards, B.’s heir-
at-law, for the last time, claimed a renewal
of the lease of 1782. Held, that N., having
without notice of ptf.’s equity, acquired the
prior legal estate from A.’s trustee, and the
entire equitable interest by the application
of his purchase-money in paying prior incum-
brances, was not bound to renew that lease ;
and that the daches of those deriving there-
under in claiming a renewal, or obtaining a
recognition of the title, was a bar to their suit.
—Drew v. Earl of Norbury, 9 1. E. R. 171, 524 ;
3 Jon. & L. 267. (C.)

1. In 1787 a lunatic made to his brother a
lease for lives renewable for ever. The lessee,
the last life in the lease, died in 1836. In the
lunacy matter various proceedings respecting
the lease and rent were had. Their result
was that, without recognising the lease as a
valid demise, the lessee was permitted, upon
paying the whole rent, to hold part of the
demised lands. From 1836 to 1842, the lessee’s
heir received the profits. Upon him, being also
the lessor’s heir, the fee descended in 1842,
upon the lessor’s death. On a bill filed by a
judgment creditor of the lessee—Held, that he
had not acquired the fee, subject to a perpetual
rent equal to that reserved, or a right to a
renewal by reason of the Statute of Limi-
tations, length of time, or the proceedings in
the lunacy matter; and that the profits re-
ceived by the lessee’s heir from 1836 to 1842,
were not the lessee’s assets.— Fulton v. Creagh,
91 E.R. 289; 3 Jon. & L. 329. (C.)

2. A defendant, who by his answer sets up
a breach of covenant by the leseee as a de-
fence to a bill for renewal, and fails to
prove it, must pay the costs occasioned by
that defence. — Vance v. Ranfurley, 1 I. C. BR.
321. (C.)

3. The Court will not refer it to the Master
to settle the renewal of a lease, if there exists
a doubt whether the tenant has forfeited or
lost his right to renew.—ZJn re Revills Minors,
51. Jur. 24. (R.)

4. When there is a lease of Church lands
and tithes by an Ecclesiastical Corporation,
and 2 sub-lease of part thereof by the first
lessee, with at. g. covenant for renewal, on
the terms of the sub-lessee paying his propor-
tion of such fines, costs, and charges as the
first lessee should have to pay in obtaining a
renewal of his interest; and there is nota
mutual covenant on the part of the sub-lessee
to accept a renewal ; delay on the part of the
sub-lessee in takingout a renewal, and paying
such proportion when required by notice so
to do by the first lessee, at a time when he has
been called upon by the Ecclesiastical Corpo-
ration to renew and pay the necessary fine, is
a circumstance which will be taken into con-

[LEASE]

 

Forfeiture of.

sideration by a Court of Equity on a bill filed
by the sub-lessee for renewal.

Semble—In such a case, if the sub-lease be
put in settlement, notice by the sub-lessor to
the tenant for life under the settlement, will
be sufficient, without giving notice also to the
trustees of the settlement.

What will be sufficient laches to work a for-
feiture of the right to a renewal of such a sub-
lease, considered.— Morgan v. Gurley, 11.C. R.
482. (C.)

5. A lease for three lives reserved a rent of
£20 sterling, and also one couple of well-fatted
eapons, or five shillings in lieu thereof, at
every Christmas, and the work of two la-
bourers for one day in harvest, or two shillings
in lieu thereof yearly during the said demise,
as duties for every dwelling-house built, or to
be built, on the said premises, or any part
thereof; and contained a covenant for per-
petual renewal on payment of one year’s rent
and duties as therein reserved, over and above
the annual rent and duties as therein before
reserved. The lands were subdemised to the
officers of the Board of Ordnance for 950 years
in 1810, and military barracks were built on
them, which consisted of 29 houses, some of
which were detached from the others, and
all had separate entrances opening into the
barrack-yard, and without any internal com-
munication, the whole barracks and yards
being inclosed by an outer wall, the houses
being quarters for officers, soldiers, &c., and
for other military purposes. Held, that the
lessee was entitled to a f. f. grant under the
Ren. Lease. Con. Act.

That the possibility of additional dwelling-
houses being hereafter built on the premises
was not to be considered as worth any thing
in computing the f. f. rent to be reserved,
having regard to the premises being a barrack,
and demised to the Crown for 950 years, and
that any additional building for barrack ac-
commodation would not be a distinct dwelling-
house within the reservation in the lease.

That the barracks were to be considered as
one house, the military not being occupiers,
but servants of the Crown.

Every case of a lease for lives renewable for
ever, made before the passing of the Act, or
after the passing of the Act, in pursuance of
a covenant or agreement entered into before,
is within the lst sec.; and a difficulty in cal-
culating the amount of the f.f. rent under the
2nd sec. does not take the case out of the
operation of the Act.— Ex parte Barlow, 2 I.
C. R. 272. (R.)

6. A lease (of lands) made in 1778, for three
lives, contained a covenant for renewal (on
payment of a peppercorn fine) during the
continuance of a lease (of other lands) which
was to expire at Easter 1781, and during 70
years, commencing from that period. A pro-
viso, by the lessee, waived all right to a renewal
if he did not nominate, within twelve months
after the fall of each life, the new life intended
to be substituted for that which had expired.
It was renewed in 1820. One of thec. g. vivent
named in the renewal went abroad in 1825,
Right to Renew,

and after 1833 was never heard of. In 1848,
the two other c. g. vivent being alive, the lessee
applied to the lessor for a renewal, but was
refused. At Easter 1851, the term expired.
On the 14th April in the same year, the lessee
filed his cause petition for renewal. Held, that
he was entitled to such renewal.

That he was not bound to institute inquiries
abroad as to the existence of the absent c. q.
vie.

That the case was not one in which the
lessor was entitled to compensation.

That there should be inserted in the decree
a declaration, that if it should be proved
afterwards that the absent c.g. vie was dead
at Easter 1851, the renewal should be void.
The Court, however, refused to declare that
if it should be proved afterwards that if the c.
q. vie were dead more than a year before the
demand in 1848 for a renewal, the renewal
should be void. — Wisdom v. Corporation of
Dublin, 21. C. R. 806. (C.)

1. The interest in a lease for lives renewable
for ever was settled on A. for life, remainder,
subject to a jointure to A.’s wife, to the use of
his children, who were minors. In 1839, one
of the lives being dead, a negotiation for a
renewal took place between A. and B., one
of six parties entitled to the reversion, acting
on behalf of all. In 1847, a renewal was exe-
cuted as an escrow by the reversioners, on the
promise, which was not fulfilled, of immediate
payment of the fine. In July 1849, a demand
in writing of the renewal fines was made by
B., on behalf of himself and the other parties
interested, on A. In March 1851, another c.
q. vie having died in the meantime, A. tendered
the amount of the renewal fines. Hedd, that
the right to a renewal had been forfeited, and
a petition for that purpose was accordingly
dismissed with costs.— Wood v. Knox, 31. C.
R. 109; 41. Jur. 309. (C.)

2, When there is a limited right of renewal,
and a doubt exists whether a forfeiture has
been created, the Court will not direct the
guardian of the minor to execute a renewal
under the Acts (11 G. 4, &1 W.4, c. 65, s. 16;
5&6 W. 4, ¢. 17.)

The guardian was allowed her costs as costs
in the matter.—Ex parte Coote, 6 I. Jur. 107. (R.)

3. A corporation lease for three lives, made
to E., contained a covenant for renewal, during
a period of 70 years, and a proviso by which
the lessee waived all right to a renewal, if he
did not, within twelve months after the fall of
each life, nominate the life intended to be
substituted. By an indenture of even date,
reciting that four persons were interested in
the corporation lease, and that it was taken
out in the name of E. as a common trustee,
E. demised a portion of the premises to B., for
the same lives, with a covenant for renewal
during alike period of 70 years; and a proviso
by which B. waived all right, if he did not,
within twelve months after the fall of each
life, nominate the life or lives of some other
person or persons in lieu thereof. In 1829,
two years after the fall of a life, E.’s lease was

[LEASE]

 

Forfeiture of. 541

renewed for an additional life ; no application
was then made for a renewal of B.’s lease. In
1853, R., and M. his wife, who then represented
the interest in B.’s lease, assigned the same to
D., habendum for the lives of the two surviving
c.g. vies. This deed was duly acknowledged
by M. R. and M. stated that at this time they
had no knowledge of the renewal of 1829.
Upon a bill filed by R., M., and D., against the
persons who represented E.’s interest, for a
renewal of the sub-lease for the same life as was
inserted in the renewal of 1829—Held, that E.
or his representatives were not trustees of
that renewal for the representatives of B.;
that the petitioners had forfeited their right
to a renewal.

The petition prayed that the renewal might
be executed either to 1)., or to R. and M.

Semble—That to make them co-plaintiffs
amounted to a misjoinder—MU‘ Birney v. Allen,
21. Jur. N. 8. 169. (C.)

4, A., tenant of a lease for lives renewable
for ever, assigned his entire interest by way of
mortgage, but remained in possession of the
lands. The lessor served upon A. a notice
under the Tenantry Act, but did not serve it
upon the mortgagee. A. omitted, for a con-
siderable period, to renew the lease. A peti-
tion, filed by A., for a renewal was dismissed on
the ground of laches. Held, that the mortgagee
could not sustain « subsequent petition for a
renewal, on the ground of the omission to serve
him with the notice.

That in the mortgagee’s suit, the lessor could
not rely on his affidavit filed in A.’s cause, as
evidence of the facts stated in the affidavit.—
Galbraith v. Cooper, 6 1.C.R.518; 31. Jur. N.
8.69. (C.)—[Affirmed: 8 H. Lds. Cas. 315.]

5. M., a minor, ward of Court, was tenant
for lives renewable of lands of which F. pur-
chased the reversion. All the lives being
dead, F., on the 29th of Oct. 1855, served a
notice upon the receiver in the minor matter,
calling on himto renew. Onthe 8th of Nov.
1855, the receiver sent a notice to F. of his in-
tention to lay the matter before the Master in
the matter. The affairs of the minor were
very much involved, and the report that it
would be for the benefit of the minor to re-
new, was not confirmed until Nov. 1856. In
Jan. 1857, a draft fee-farm grant was for-
warded to F., and was returned not approved.
In Feb. 1857, the fines were tendered but re-
fused. In July 1857, the petition for a renewal
was filed by M. Held, that the right of re-
newal was not forfeited.

Quere—Whether a landlord can, without
leave of the Court, serve upon a ward of Court
a notice within the Tenantry Act, so as to
forfeit the minor’s right of renewal ?—Man-
sergh v. Fitzgerald, 71. C. R. 159; 31. Jur.
N.S. 168. (C.)

6. A lease for seventeen years contained a
covenant by the lessors to renew, as often as
they should obtain a lease of the lands, on the
terms of the lessees paying all rent and arrears
of rent then due to the lessors, and reimburs-
542 Right to Renew,

ing the lessors the renewal fines, which from
time to time should be payable and paid by
the lessors to their immediate lessors, with
interest thereon from the times or time the
renewal fines should be paid. After the term
expired, rent and fines accrued due, and the
lessors’ interest was sold in the I. E. Court.
On a petition for a renewal, filed against the
purchaser alone—Held, that the lessees were
entitled to a renewal on the terms only of
paying all the arrears of rent and fines due to
the lessors and the purchaser.

That the suit was defective, as the surviving
lessor had not been madea party to it.

The Court decreed « renewal on payment
into Court of the arrears of rent, renewal
fines, and interest; and ordered the petitioner
in the I. E. Court, and surviving lessor, to be
served with notice of the proceedings, on a
reference directed by the decree to ascertain
the amount of the rent and fines.

Quere—Whether the surviving lessor or the
purchaser was entitled to the fines which ac-
crued due before the sale and conveyance ?—
Steele v. M‘Call, 71. C. R. 122. (R.)

1. A lease contained a covenant by the.
lessee, on the decease of any of the lives, to!

put in another person’s life; the lessee, his
heirs or assigns, giving notice in twelve months
of the decease of the life. The lessee was
the last surviving life, and his son and heir-
at-law had been abroad for many years, and
having had no communication with his family,
was supposed to be dead. He did not hear
of his father’s death until after twelve months
had expired, and did not serve any notice to
renew. eld, that there was no ignorance or
unavoidable accident which would excuse the
non-compliance on his part with the covenant,
and a petition for a renewal was therefore dis-
missed.

Matters not put in issue by the petition, or
by amendment thereof, cannot be relied on
at the hearing of a cause petition. It is not
sufficient to put them in issue by an affidavit
in reply.— Murphy v. Jackson, 7 I. C. R. 189;
31. Jur. N.S. 132. (R.)\—[Affd.: 7 I. C. RB.
502; 31.Jur. N. 8.288. (C.A.)]

2. A.covenanted in a lease for lives, “as often
as any of the lives should fall to renew to the
lessee, his heirs and assigns, any other new life
that he or they shall name, provided that he or
they shall pay to the lessor, his heirs or assigns,
as a fine for every new life, as this demise shall
be renewed for, for ever hereafter £1. 16s. 8d.
for making the same.” The habendum was
during the lives of the persons named in the
lease, and the covenant for quiet enjoyment
was only during the term thereby granted.
The lessee covenanted to surrender peaceably
at the end of the term. Held, a covenant for
perpetual renewal.

The tenant was not held disentitled to relief
by having delayed to present his petition, from
the service of a notice to quit in April 1856,
until December 1857; petitions for renewal
having in the meantime been presented by
other parties, wrongfully claiming the tenant’s
interest.

[LEASE.]

 

Forfeiture of.

Decree for renewal made, with costs.—
Roberts v. Mayne, 71. C.R. 551; 81. Jur. N.S.
358 ; Dr. Rep. temp. Napier, 175. (C.)—[Affd.:
81.C. R. 525. (C.A.)]

3. In 1820, A. obtained a lease with cove-
nant for renewal ¢. g., the lessor being tenant
under Trinity College. In 1821, A., on his
marriage, conveyed his interest in the leases,
upon trusts for the benefit of the intended
wife and the issue. It did not appear whether
A. took any or what estate under the settle-
ment, but he continued in possession. In
1854, the lessor, having obtained a renewal
from the college, served a notice on A., call-
ing on him to renew and pay the renewal fine.
A. died in 1852, without having taken out a
renewal; and the surviving trustee, after the
expiration of the lease, filed a petition. Held,
that the notice served on A. was sufficient to
create a forfeiture of the right of renewal.

The service of a notice by a deceased person
was proved by a contemporaneous endorse- |
ment by him on the notice; but it was not
proved to have been served in the ordinary
course of his business. Held, that the endorse-
ment was not admissible in evidence.

After the death of A., his executor and the
lessor entered into a negotiation, in the course
of which the latter consented to renew the
lease, on condition that 4 renewal of other
premises, which were dilapidated, was also
taken out. Held, that he had not thereby
waived his right to rely on the forfeiture.—
Orr vy. Littlewood, 8 I. C. R. 348. (R.)

4. One seized for lives renewable for ever
under a lease of 1793, of A., on which bleach-
ing mills had been built; and possessed of B.
and C. under a Bishop’s lease, with at. g.
covenant for renewal; in 1815 demised A. and
B. for 20 years, with a ¢. g. covenant for re-
newal; and by lease of equal date, reciting
that he had made mill-ponds and millraces on
C. for the convenience of his linen mill, de-
mised C., together with the millrace and
watercourse, with all rights, &c., as then or
theretofore enjoyed by himself, to hold for all
the term whereunto he was then entitled
or should become entitled, with a t. g. cove-
nant for renewal; and, after reciting that
C., as containing a head of water, sluices, and
watercourses, was most essential, useful, and
necessary to the operations of ‘the bleaching-
mills which were demised by the contem-
poraneous lease, it was agreed that if the
in part recited mill lease, and the buildings
lands, and premises thereby demised, should
at any time thereafter revert to the lessor, his
executors, &c., by any due and legal means,
C. should also be liable to revert to the lessor,
his executors, &c., the lease being made for
the advantage of the operations of the mills,
and not to endure longer than the lessee, his
executors, &c., should hold the in part recited
mill lease, and the buildings, &c., thereby de-
mised, In 1827 separate renewals were granted
of A., B., and C., in consequence of a new
arrangement entered into on the suggestion
of a difficulty being likely to arise from A. and
B., which were held under different tenures,
Right to Renew,

being included in one lease, both parties being
represented in the transaction by different
solicitors. The renewal of C. recited that the
premises demised by the lease of C. of 1815,
and thereinbefore mentioned as containing a
head of water, sluices, and watercourses, were
most essential, useful, and necessary for the
operations of bleaching mills, demised by lease
of 1815, made between the same parties, and
which were also, by an indenture of equal
date therewith, in like manner renewed ; and
if the in part recited mill lease, and the build-
ings, lands, and premises thereby demised, and
thereinbefore particularly mentioned and de-
scribed, should thereafter revert to the lessor,
his executors, &c., by any due and legal means,
it was thereby, as it was in the in part recited
original lease, agreed upon between the parties
thereto, that the therein demised premises
should also be liable to revert to the lessor,
his executors, &c., the renewal being made, as
was the original indenture of lease, for the ad-
vantage of the operations of the mills, and not
to endure longer than the lessee, his heirs, &c.,
should hold the in part recited mill lease and
the premises thereby demised. The petitioner,
in whom the lessee’s interest had become vest-
ed, took af. f. grant of A., the mill premises,
but declined to take out a renewal of B. The
respondent, in whom the lessor’s interest had
become vested, refused to give a renewal of
C. Held, that the petitioner’s right to a re-
newal of C. depended on the covenant in the
renewal of 1837; and there being no fraud
or mistake alleged, and no cross petition to set
aside that deed, the Court decreed a renewal.
M‘Murray v. Burrowes, 9 1. C. R. 234. (R.)

1. A., seized for three lives renewable for
ever of lands, under a lease of 1769, and of
other lands for two lives, under a lease of
1772, demised them in 1788 for three other
lives, with a covenant for perpetual renewal.
In 1793, B. purchased A.’s interest, and in
1802 B. became entitled to the reversion in
fee, by devise. In 1809 the last life of the
lease of 1772 died; but B. was not apprised
of his death, and continued to receive the
rent reserved by the lease of 1788 until his
own death in 1825. In 1819, B., on his mar-
riage, conveyed all his estate in the lands to
trustees, to the use, in the events which hap-
pened, of his son. Held, that the son of B.
was not bound by the covenant in the lease
of 1788 to grant 4 renewal of the lands de-
mised by the lease of 1772.

B., being bound by a covenant, by reason
of its running into a mesne reversion, but
being under no personal liability whatever,
acquired the fee, from a person not affected
or bound by the covenant. B. is not liable to
perform the covenant, by reason of his having
acquired the fee.

Semble—It would. have been otherwise if B.
had been personally bound to perform the
covenant.—Kent v. Stoney, 91. C. R. 249. (R.)

2. A lease for lives contained a covenant
that the lessors, their heirs and assigns, would,
on the death of each life, or within twelve
months after the same, execute a renewal to

[LEASE.]

 

Forfeiture of. 543

the lessee, his heirs, executors, &c., on pay-
ment by the latter of £4, if demanded. One
of the lives died in June 1848. In Oct. 1849,
the steward of the lessor handed the following
letter, undated, to the lessee :—‘“ Although I
dare say you are aware of the fact that one
of the lives in the lease of B. has for some
time dropped, I believe it is necessary to give
you notice of it, and to demand the renewal
fine due on the fall ef each life. I accord-
ingly beg to acquaint you of it, and beg you
will be good enough to send me the amount,
£4, at your convenience. H. Wigmore.” The
lessee did not treat this as a demand, and
forgot it; nor did the lessor allude to it when
they met, until, in 1856, the lessee having
demanded a f. f. grant, the lessor insisted
that his right thereto was forfeited. On peti-
tion for a renewal—Held, that the letter was
not sufficiently explicit to constitute a demand
under the Tenantry Act; and the words “ at
your convenience” left the time of payment
to the discretion of the lessee.—Bull v. Wig-
more, 51. Jur. N. 8.57. (C.)

8. In 1761 D. demised lands to N. for two
lives, with covenant for perpetual renewal.
In 1769 N. demised them for 993 years to W.,
who, in 1782, demised them to A. for 950
years, at a profit rent. In 1794 C., heir-at-
law of D., renewed the lease of 1761 to N.’s
representatives, for two lives, the last of which
died in 1837. In 1807 C. became possessed
of N.’s interest. From 1823 to 1849, the as-
signees of A.’s interest paid to O., heir-at-
law of C., as assignee of N., the rent payable
under the lease of 1769 ; and to the represen-
tatives of W. the profit rent reserved under
that of 1782. In 1851, the rent being in
arrear, O. brought an ejectment for non-pay-
ment of the rent reserved in the lease of
1769, and obtained possession of the lands.
W.’s representatives were not served with the
ejectment, and were unaware of that proceed-
ing. Upon petition by them to have the term
of 993 years, granted by the lease of 1769,
fed out of the estate acquired by O.—Held,
that the petitioners were not entitled to any
relief in equity—Foott v. O’Callaghan, 5 I.
Jur. N.S. 369. (C.)

4. In 1822, A., entitled to the reversion of
a lease for lives, with covenant for perpetual
renewal, which had been renewed in 1808,
conveyed the reversion to B. In 1854 a peti-
tion was filed by C. (B.’s heir-at-law) against
the executrix of D., the tenant, heir-at-law
of A., to recover arrears of the rent against
Ds assets. In defence, it was alleged that
A. was insane when he executed the deed of
1822. In May 1857, C. served a notice on E.
(D.’s heir), entitled to the interest in the
lease, calling on him to pay the renewal fines,
and to take out a renewal; which E. by notice
declined to do until C.’s title to the reversion
was established in the suit. In January 1858
the suit was determined by an order in favour
of C. In Nov. 1858, E. served a notice, offer-
ing to take out a renewal; and, in Dec. 1858,
tendered the renewal fines, and a draft re-
newal; and filed a petition for renewal in Feb.
544
be
1859. Held, that the right to a renewal was
forfeited.—Long v. L., 10 I. C. R. 406. (R.)—
(Affirmed: 111. C. R. 252; 61. Jur. N.S. 49.
(C.A.)]

1. A lease for lives renewable did not re-
serve any renewal fines. The tenant having
been embarrassed, a receiver was appointed
over his interest, and an order for sale of it
in the I. E. Court made. In1856 and in 1857,
the solicitor having the carriage of the pro-
ceedings in the I. E. Court applied to the
reversioner for a f. f. grant. To this applica-
tion no answer was returned. In August 1858,
the reversioner wrote a letter to the tenant,
requiring him to take out a renewal. This
was not served on the receiver. The receiver
was afterwards discharged, and the order for
sale stayed. In July 1859, the tenant applied
for a f. f. grant, which the reversioner refused
to make.
to a renewal.— Bond v. Slator, 10 I. C. R. 472;
5 I. Jur. N.S. 274. (C.)

Right to Renew,

2. In 1827, a lessor, as to whom it was dis-
puted whether she was only tenant for life, or
was entitled in quasi tail for lives renewable
for ever, made a lease for her own life, with a
covenant that if she should be enabled, either
separately or in conjunction with any other
person or persons, to grant the premises for
any longer term than was thereby granted,
she would, at the request and costs of the
lessee, execute all such further act or acts,
&c., for the purpose of granting the premises
to him, for any term not exceeding three
lives, with covenant for perpetual renewal,
on payment of a peppercorn fine on the fall
of each life, at the rent thereby reserved, &c.;
and the lessee covenanted for himself, his
heirs and assigns, with the lessor to accept
such grant. It was decided by the Court of
Appeal (7 I. C. R. 388) that the lessor was
tenant in quasi tail.

Semble—The covenant was a personal cove-
nant, binding on the lessor during her life,
and did not descend with the land.

No claim was made on foot of the covenant
during the lifetime of the lessor, who died in
1854. Judgments had been obtained by the
petitioners for the same debt against the lessee
and R., who was entitled in remainder to the
reversion, and who afterwards became entitled
to the lessee’s interest. After the lessee’s
death, a petition was filed by creditors of R.,
in the I. E. Court, for sale of the reversion, on
the ground that the lessor was only tenant for
life, or, if she were tenant in quasi tail, had
not barred the entail. The petitioners were
made parties in that matter, as judgment cre-
ditors of R.; and, after it was dismissed by the
Court of Appeal, they had, in other proceed-
ings in the L. E. Court, admitted the right of
the respondents, devisees of the lessor, and
had gone into possession of the lands. Held,
that the right to a specific performance of the
covenant had been abandoned, and was barred
by laches and acquiescence.

A judgment creditor of a tenant may main-
tain a suit for a renewal.— Homan v. Skelton,
111L.C. RB. 75. (R.)

[LEASE.]

Held, that the tenant was entitled.

 

Forfeiture of.

3. D., the sub-tenant of a portion of leasehold
property, undertook to pay the head rent, but
fraudulently omitted to do so. The head
landlord evicted the lease for non-payment of
rent. More than six months after the execu-
tion of the decree, the head landlord offered
the sub-tenant the option of redeeming or
taking out a new lease to himself. The sub-
tenant elected to take a new lease. Held, that
there was no waiver of the forfeiture in favour
of the mesne tenant.—Dowding v. Commissioners
of Ch. Don. § Beg.—12 I. C. R. 361. (C.)

4. A tenant for life, professing to act in
pursuance of the 3 G. 3, c. 34 (Jr.), s. 41, made
in 1780 a lease for lives renewable for ever, of
twelve acres of ground, for the purpose of a
bleach-green. This lease contained a cove-
nant to keep the bleach-green and buildings
in good and sufficient repair.

The tenant, having ceased to use the demised
lands as a bleach-green, permitted them to be
applied to other purposes. Held, that he was
not entitled to obtain a renewal of the lease.
Bennett v. Richardson, 141. C.R.1; 81. Jur.
N.S. 61. (C.)

5. All the persons entitled to the lessee’s
interest should be made parties in suits for
renewal of the lease.

(me of the lives in a renewal was described
as “B. the younger, son of B. of Sion, aged
fifteen years or thereabouts.” There were two
persons of the name of B.; one, the eldest son
of H. of Sion, who was fifteen years old; the
other, the fourth son of B. of K., who was nine
years old. Held, on the evidence, that the
latter was the c. g. vie.

The tenant having tendered the renewal
fine and interest from the death of the former,
without objection on that ground on the part
of the landlord—Held, that the tender was
sufficient to save « forfeiture under the Te-
nantry Act.

There is no general rule as to what shall be
deemed reasonable time for payment of the
renewal fines. But the Court granted a re-
newal where a tender had been made just
within six months of the demand, there being
no fraud on the part of the tenant, and no cir-
cumstance to establish default, except the
lapse of time.

Advertisements in the “ Gazette,” &c., under
the 2nd sec. of the Tenantry Act, are not a
sufficient demand, when the head rent is paid
to the landlord by an agent for the tenants.
Such agent ought to be served with notice, if
the landlord shall find any difficulty in dis-
covering his tenants or their assigns.

Semble—When a demand of a renewal fine
has been inserted in the “ Gazette,” under the
2nd sec. of the Tenantry Act, the demand
shall not be deemed to have been made on the
day of the publication of the first advertise-
ment.—Colclough v. Smyth. 141. C. R. 127. (B.)

6. When the immediate lessee of See lands
is bound by covenant to renew the sub-lease
of a portion ¢. g., the sub-lessee may, by delay,
lose the right of compelling specific perform-
ance of the ¢. g. covenant, although he has by
the sub-lease covenanted to pay his propor-
Perpetual

tion of the fine within one month after notice
of the amount, even though no notice of the
amount of the fine, such as would found an
action of covenant, had been given, if it ap-
pears that he might reasonably have known
the amount which he ought to pay.— Blakely
v. Collum, 14 I. C. R. 875. (C.)

1. A lease, containing a covenant for per-
petual renewal, on payment of a peppercorn
fine, over and above the annual rent thereby
reserved, comes within the Tenantry Act [19
& 20 G, 3, c. 30 (Ir.)]

A notice demanding possession of the lands
is a sufficient demand to work a forfeiture
under the Tenantry Act.

A landlord who had purchased the reversion
in a lease for (lives renewable for ever, upon
payment of a peppercorn fine), in June 1860,
served a notice, demanding possession, the
lives in the lease having expired. He after-
wards refused to renew, except upon payment
to him of the whole arrear of the rent due,
including that which accrued before his pur-
chase, to a portion of which only he was
entitled. A petition for af. f. grant was pre-
sented in June 1861, and a cause petition was
filed by direction of the Court. Held, that, as
the landlord had demanded more than he was
entitled to, the right to a renewal had not
been forfeited.

But, the tenant not having tendered the
rent due to the landlord, was decreed to pay
the costs of the suit and of the petition for a
f. f. grant.— Williamson v. Tuckey, 141. C. R.
407. (R.)

2. A. made a lease of lands conditioned not
to sublet or assign, without his consent under
hand and seal: the lease to be void on breach.
The lessee, with A.’s consent by letter, though
not under seal, agreed to sublet part of the
lands. B. afterwards purchased in the I. E.
Court A.’s reversion, subject to the agreement.
The lessee’s administratrix (C.) applied to B.
for permission to make a lease, in pursuance
of the agreement, to E., to whom the interest
under it had been assigned. B. advised and
encouraged C. to make the lease, stood by
while a large sum was expended by E. on the
lands, and witnessed the execution of the sub-
lease, knowing it to be a sub-lease of the
lands from C. to E., and knowing also of the
clause against subletting, but ignorant that A.’s
consent was not valid in law; and swore that
he had no intention at the time to take ad-
vantage of aforfeiture. He afterwards brought
an ejectment for the forfeiture. Held, that
the Court had power to relieve the tenant,
notwithstanding the condition against assign-
ing or subletting, and the Subletting Act
(2 W. 4, © 17)—Burke v. Prior, 151. C. R.
106. (R.)

3. One of the lives in a renewal of 1803 was
described as B. the younger, son of B. of
Sion, aged 15 years or thereabouts. There
were two persons of the name B.; one the
eldest son of C. of Sion, whom reputation
proved to have been then 15 years old; the
other, the fourth son of B. of K., who, as
proved by the inscription on his tombstone,

[LEASE.]

 

Renewal of. 545

was then nine years old. Held, that neither
reputation nor the inscription was admissible
in evidence to prove the parties’ age.

That in the absence of evidence of mutual
mistake by the executing parties to therenewal,
B. the son of B. must be taken to have been
the c. g. v.—Colclough v. Smyth, 15 I. C. R. 347.
(R.)—[Affirmed: ib¢d, 396. (C.A.)]

4, The tenant of an intermediate interest in
lands, the property of a See, without having
renewed his lease or paid rent to his imme-
diate landlord for more than 20 years, peti-
tioned the L. E. Court to sell the fee; but
afterwards served on his immediate landlord a
notice containing an offer to take out a per-
petuity grant. The landlord, by notice, replied
that he would execute the grant, on payment
to him of all rent, fines, interest, and costs of
establishing his title in the L. E. Court. Held,
that that notice was a waiver of the forfeiture.

Semble—That the tenant had, by disclaim-
ing: his landlord’s title during the proceedings
in a Court of Record, forfeited his right toa
renewal.

A tenant, applying to the Court for a f. f.
grant, must pay all rent due, although the
landlord could not, at law, recover more than
six years’ arrears of rent.

A tenant, who has claimed the fee against
his landlord, cannot afterwards rely on the
presumption that the rent accrued more than
20 years before he applied for a f. f. grant.

A tenant applying for a f. f. grant or re-
newal, is bound to pay rent and fines due
before his landlord’s title to the reversion ac-
crued. As to such rent and fines, the landlord
is a trustee for those entitled.— Courtenay v.
Parker, 16 I. C. R. 820. (R.)

 

VIII. 5. Perpetuity under the Ren. Lease. Conv.
Act, 12 & 13 Vie.c.105. See Lanp-
LORD anp Trnant, V. 4. See
Lease, VIII. 4.

5. Under 12 & 13 Vic., c. 105, when the fine
is nominal, in the absence of particular cir-
cumstances, a landlord is not entitled to
compensation for the mere conversion of the
reversion into a f. f. rent.—Ex parte Somerville,
21. Jur. 203. (R.)

6. A sub-lease, containing a t.g. covenant
to renew, of lands held under a Bishop’s lease,
though the sub-lessee may obtain the fee
under the Church Temporalities Acts, 3 & 4
W. 4, ¢. 37, and 6 & 7 W. 4, c. 99, is nota
Church lease within the 12 &13 Vic., c. 77,8.54.

Being a lease for an absolute term of years,
with a covenant for perpetual renewal, it is a
perpetuity within that section.

If there be a doubt respecting the Commis-
sioners’ jurisdiction to sell the dand or lease
included in the petition, they will not order a
sale, though their opinion be favourable to the
right to sell. .

If the lease is not one of the classes men-
tioned in that section, and the Commissioners
sold, their decision might not be conclusive,
and the purchaser might be evicted by the
judgment of a Court of Law.—ZJn re Slacke, 2
I. Jur. 157, (1.E.C.)

69
546 Perpetual

1. Form of order on a petition for the con-
version of a renewable Jease into a f.f. grant.—
Ex parte Connolly, 31. Jur. 4. (R.)

2. In a f.f. grant, under the Ren. Lease.
Con. Act, the Court will frame the covenants
so as not to vary the existing rights and
liabilities of the parties.

It was alleged that since a previous renewal
there had been a breach of covenant to keep
the premises in repair. The covenant inserted
in the f. f. grant was to keep the premises in
such repair as they were in at the date of the
renewal.—Ex parte Waldron, 11. C. R.269. (R.)

8. A lease for three lives reserved a rent
of £20 sterling, and also one couple of well-
fatted capons, or five shillings sterling in lieu
thereof, at every Christmas, and the work of
two labourers for one day in harvest, or two
shillings in lieu thereof yearly during the said
demise, as duties for every dwelling-house
built, or to be built, on the said premises or
any part thereof, and contained a covenant
for perpetual renewal on payment of oneyear’s
rent and duties as therein reserved, over and
above the annual rent and duties as therein-
before reserved. The lands were subdemised
to the officers of the Board of Ordnance for
950 years in 1810, and military barracks were
built on them, which consisted of 29 houses,
some of which were detached from the others,
and all had separate entrances opening into
the barrack-yard, and without any internal
communication, the whole barracks and yards
being inclosed by an outer wall, the houses
being quarters for officers, soldiers, &c., and
for other military purposes. Held, that the
lessee was entitled to af. f. grant under the
Ren. Lease. Con. Act.

That the possibility of additional dwelling-
houses being hereafter built on the premises
was not to be considered as worth anything in
computing the f. f. rent to be reserved, having
regard to the premises being a barrack, and
demised to the Crown for 950 years, and that
any additional building for barrack accommo-
dation would not be a distinct dwelling-house
within the reservation in the lease.

That the barracks were to be considered as
one house, the military not being occupiers,
but servants of the Crown.—£x parte Barlow,
21.C.R. 272. (R.)

4. The representatives of the lessee of a
lease of lives renewable, being entitled to a
af. f.grant under the Act, and being unable
to discover where one of the owners of the re-
version resided, the Master was directed, on
the part of the absent owner, to join with the
other owners in executing af. f. grant to the
representatives of the lessee; and the amount
of compensation for renewal fines and arrears
of rent was directed to be paid into Court to
the credit of the matter, and separate credit
of the absent owner.—£x parte Owen, 6 I. Jur.
209. (R.)

5. The owner of a lease for lives, renewable
for ever upon the payment of a fine within
six months after the fall of each life, where a
a receiver had been appointed over the les-

[LEASE.]

 

Renewal of.

sor’s interest, and all thec. g. vies were dead,
tendered to the receiver the amount of re-
newal fines and septennial fines, which he
declined to accept. A reference was directed
to the Master to ascertain the amount due for
fines, and to approve of 4 proper renewal to
be executed.— Simpson v. Mullins, 71. Jur. 16.

(R.)

6. Construction of the Ren. Lease. Con.
Act, s.5. A landlord seized in fee of the rever-
sion is entitled to compensation under that
section for the conversion of the estate in the
reversion to an estate in the f. f. rent.—Ex
parte Knox, 31.C.R. 57. (R.)—[Overruled,
In re Lawless, 4 I. C. R. 280. (P.C.)—Thack-
well v. Jenkins, 4 I. C. R. 243; 7 1. Jur. 61.

(C.)]

7. A landlord, seized in fee of a reversion
on a lease for lives renewable for ever, is not
entitled to compensation for the loss of that
reversion, by the conversion of the estate in
the reversion into a f. f. grant under the Ren.
Lease. Con. Act, unless a case of especial
loss be shown, to which alone the 5th sec. of
the Act is applicable.

An affidavit, stating that the marketable
value of the grantee’s interest is increased,
without stating that of the grantor’s to be di-
minished, is not sufficient to bring a case
within that sec—x parte Knox, 3 I. C. R.
57. (R.) overruled. ]—Jn re Lawless, 4 1. C. R.
230. (P.C.)

8. When the landlord is seized in fee-
simple of the reversion, he is not entitled to
compensation under the 5th sec. of the Ren.
Lease. Con. Act, for the conversion of the
estate in the reversion into a f. f. grant.—
[Ex parte Knox, 3 1. C. R. 57, (R.) overruled.]
—Thackwell v. Jenkins, 4 1. C. R. 243; 71. Jur.
61. (C.)

9. By a private Act of Parliament, which
received the royal assent in 1846, D. got
power to make f. f. grants to tenants on his
estates, holding by leases for lives renewable
for ever, at the rents reserved by such leases, in
consideration of such sums, by way of premium
for such grants, as the grantors should think
reasonable. The power was exercised, and
large sums were realised by such grants, pre-
viously to the passing of the Ren. Lease.
Con. Act (12 & 18 Vic., c. 105). Held, that
the case was within the 5th sec. of the latter
Act; and therefore D. was entitled to com-
pensation for the loss of the reversion, from a
tenant seeking a f. f. grant under it.

Quere—Whether the Ren. Lease. Con. Act
repealed the private Act?

Semble — An appeal lies to the House of
Lords from an order made under the Ren.
Lease. Con. Act.—Layard v. Donegal, 41.C.
R. 450. (R.)—[See8 H. Lds. Cas. 460.]

10. In 1695 leases were granted for 91 years,
by a person seized for lives renewable for
ever, with covenants that as often as the lessor
should, after the death of the lives then in
being, obtain a renewal, the lessee, his execu-
tors, &c., should pay a whole year’s rent, in
Perpetual.

consideration whereof the lessor, his heirs,
&c., should from time to time renew to the
lessee, his executors, &c., a new lease for 91
years, determinable on thelives to be inserted
in the lessor’s renewal, and under the rents,
covenants, articles and agreements in the lease
expressed ; the true intent and meaning of
the parties being that the lessee, his executors,
&c., on payment of one whole year’s rent,
should and might have the term of 91 years of
the premises, under the covenants, conditions,
and agreements in the deed expressed, for
ever in being and undetermined. In 1721,the
lessor obtained a f. f. grant of the premises.
Renewals were from time to time granted,
until the year 1811, when the last renewal was
made. Those renewals recited the obtaining
the original leases, the f. f. grant to the lessor,
and that his grandson, in 1789, had executed
renewals, in pursuance of the covenant for
renewal, for the term of 91 years, if A. should
so long live. They also recited a further re-
newal in 1740, after the death of A., for 91
years, if B. and C. should so long live ; the
death of B. and C.; and that the renewal
fines which thereupon accrued due having
been paid, a further renewal was obtained,
one of the lives of which had died, and that
the person entitled to the lessee’s interest had
paid the renewal fines which thereupon ac-
crued, and the lands were thereby demised
for 91 years, determinable on three lives;
and it was covenanted that the lessor in the
renewal, his heirs, &c., should, from time to
time, renew to the lessee, his executors, &c.,
for 91 years, determinable on the lives so to
be inserted, at and under the rents, covenants,
articles, and agreements “in the present de-
mise” expressed ; the true meaning being that
the lessee, &c., on payment of the sum of one
shilling, should have the term of 91 years of
the premises, under the rents, covenants, con-
ditions, and agreements “in these presents
expressed,” for ever in being and undeter-
mined; and that the lessor, his heirs, &c.,
should give the lessee, his executors, &c., on
payment or due tender of the aforesaid sum
of one shilling, a lease of the premises, with
such clauses of renewal as were therein ex-
pressed, at and under the aforesaid rents and
reservations. Held, that notwithstanding the
f. f. grant of 1721, the lessor’s representatives
were bound to renew the leases, and conse-
quently to grant a f. f. under the Ren. Lease.
Con. Act.

That, on the construction of the covenant in
.the renewal of 1811, a fine was payable on the
fall of each life.

Although covenants for renewal cannot be
construed by the acts of the parties, the
Court would be unwilling to act against the
construction acted as by them for a long
period, unless that construction be clearly
erroneous.—In re Gore, 8 I. C. R. 589. (R.)

1. Although a lease for lives contains lan-
guage from which it does not clearly appear
whether it wasintended to contain acovenant
for perpetual renewal; yet, when the bill and
the notes of hearing in a suit instituted for
the renewal of that lease remain, and the

[LEASE.]

 

Renewal of. 547

memorial of the renewal, executed in pursu-
ance of the decree made in that suit, contains
a covenant for perpetual renewal; this Court
will presume that the lease contained a cove-
nant for perpetual renewal; and will compel
the owner of the inheritance to execute a f. f.
grant to the person entitled under the lease.—
Lismore v. Vaughan, 5 I. Jur. N. §. 161. (C.A.)

2. When one of several owners of the rever-
sion of a renewable lease is out of the juris-
diction, it is not necessary in every case to
have an order of reference to the Master.

There were six owners of the reversion, and
one was out of the jurisdiction. The f. f.
grant had been executed by the other five
owners. The interest in the lease was small,
and the right to the renewal was not disputed.
The Court directed the Master to execute the
f. f. grant for the absent owners (it having
been handed in at the time and endorsed by
the Registrar), without a reference as to whe-
ther it was a proper grant, or whether the
right of renewal existed. This was done upon
the responsibility of the petitioner, and to save
expense.—In re Coates, 7 I. Jur. 220. (R.)

3. A lease, habendum for three lives named,
and for the life and lives of such other person
and persons as should be nominated by the
lessee, his heirs and assigns, upon the death
of any of the persons for whose lives the pre-
mises were thereby granted; and upen the
death of such person or persons as should be
at any time thereafter nominated and ap-
pointed for ever, according to the covenant
and agreement thereinafter expressed; con-
taining no covenant to renew by the lessor,
but containing a covenant by the lessee, his
heirs and assigns, to pay a peppercorn fine on
the decease of each of the persons whose lives
were therein mentioned, and of each person
who should thereafter be nominated. Held, a
lease renewable for ever.—Chambers v. Gaus-
sen, 71. E. R. 575; 2 Jon. & L. 99. (C.)

4, When a lessee for lives renewable for
ever requires a f. f. grant under the Act, and
the owner of the reversion is a minor or
lunatic; or a receiver is in receipt of the
rents; it is the lessee’s duty to apply, in the
first instance, for the f. f. grant to the guar-
dian or receiver, who should apply to the
Court to ascertain whether such grant should
be made; and if he neglects to do so, he may
be charged the costs of the lessee’s petition,
thus rendered necessary for obtaining such
grant.—In re Roberts, 1 I. Jur. N.S. 248. (R.)

5. A lease for lives renewable for ever,
made before the passing of the 5 G. 3, v.17
Cir.), contained an exception of all timber
trees then standing, or growing, or being, or
which at any time thereafter should be stand-
ing or growing, or being on the demised pre-
mises. Held, that in a fee farm grant under
the Renewable Leasehold Conversion Act,
the exception should not be inserted in those
terms, but should be altered, having regard to
the rights of the tenant under the statute.—
Ex parte Armstrong, 81. C. R. 30. (C.)
548

1. In the conversion of a lease for lives re-
newable for ever, the L. E. Court will make
no substantial increase in the rent, by reason
of the commutation of the covenant giving
the landlord the right of pre-emption.—Jn re
Jackson, 111. C. R. 145. (L.E.C.)

2. A tenant sought a f. f. grant, there being
a receiver over the owner’s interest. ‘The
tenant, before proceeding himself, should call
on the receiver to take the proper proceed-
ings to have the f. f. grant made.

Semble—If the receiver refuses, the tenant
should proceed by motion in the cause, and
not by petition under the Ren.. Lease. Con.
Act.—£x parte Hanks, 7 I. Jur.N. 8. 199.(R.)

3. A lease for lives renewable for ever was
made in 1706. In 1752, an under-lease was
made, of part of the lands demised by the
lease of 1706. In 1851 the interest in the lease
of 1706 was sold, in three lots, by the I. E. Court,
and conveyed by separate deeds, to A., B.,
and C. The whole of the lands demised by
the lease of 1752, were comprised in the lot
sold to C., and the conveyance was made
subject to that lease. The lots soldto A. and
B. were conveyed discharged of the lease.
C. was also entitled to five-ninths of the
interest in the lease of 1752. D. was en-
titled to the remaining four-ninths. Held,
that C. alone, without A. and B., was the pro-
per granting party to af. f. grant, under the
Ren. Lease. Con. Act.

That D. was entitled under the Act, to re-
quire a f. f. grant from C. — Palmer v. Slaney,
14 1.C. RB. 540. (R.)

4. A lease for lives contained a covenant by
the lessor that, upon the death of any of the
lives, he would, at the request of the lessee,
his heirs, &c., and on payment of a fine, from
time to time, and at all times for ever, renew
and put in a new life; provided that the life
or lives of those that should be renewed be
of the issue or posterity lawfully begotten of
the lessee. The lease also contained a clause
giving the lessor a right of pre-emption.
Several renewals for the lives of persons not
the issue of the lessee were granted, but sub-
ject to the covenants in the original] lease.
The last of these renewals was made by a
tenant in fee of the reversion. Held, that the
lease was a lease in perpetuity, and as such
within the Ren. Lease. Con. Act.

The owner of the reversion would be bound
by the covenant to renew, though the per-
formance of the condition became impossible
by the failure of the posterity of the lessee.

Quere—Whether a release of the condition
might not be presumed from the renewals ?—
Sherlock v. Kennedy, 151. C. R. 160. (R.)

5. After the passing of the Ren. Lease. Con.
Act, A. contracted in writing to give a part
of his farm for “the same term of it that I
have myself—three lives renewable for ever ;”
and afterwards obtained a f. f. grant of the
entire farm.

On petition under the Act, the Court re-
fused to order A. to execute a f. f. grant of

[LEGACIES.—ABATEMENT.]

the part mentioned in the contract; but
directed the matter to stand over, with leave
to file a cause petition to enforce the contract.
—Forde v. Brew, 17 I. C._R. 1. (R.)

 

LEAVE.

— To withdraw Answer, and amend it. See
Practice, ANSWER.

— To amend Bill. See Practice, Birt, AMEND-
MENT OF.

— To amend without Prejudice to Injunction. Sée
Practicr, InJuNcTION.

— To accept Master’s Report.
Master, ReFeRence.

— To Plead. See Pueapine, Piea.

See PRactIcE,

 

LECTURES.
— Publication of. See Copyrrieut.

 

LEGACIES.

See Depts, II—Executors, X, 3—Inrerzst,
Pecuniary, I. 7.
As to Vesting of Legacies.
Property, II.
— Satisfaction of. See Portions, IX.
I, ABATEMENT.
II. SatisFaction.
III. ApEMPTION.
IV. Rerunpine or.
V. Lapsep or Vor.

1. How constituted.
a. Lapsed.
b. Votd.
2. Who takes thereupon.
a. In case of Personal Estate.
b. Money arising from Real Estate.
VI. ConpDiITIONAL AND CONTINGENT.
VIL. Cumutative or SUBSTITUTIONAL.
VIII. Payment or.

1. Time, §c., when Payable.

2. In what manner Payable, when raised,
and from what Fund.

3. What is a sufficient Payment of, and
to whom.

4. Of the mode of Enforcing Payment.

5. Order of Payment among Legatees, §c.

IX. Security ror Contingent Lecacizs.
X. Speciric Lecacizs.

[Statutes: Wills Act, 1 Vic., «. 26; Lega-
cies to Ch. Institutions (/r.), 5 & 6 Vic. ec. 82,
s. 38; Aliens, 7&8 Vic., c. 66; 10 & 11 Vic.,
ce. 83; Ch. Trusts (J7.), 7 & 8 Vic., c. 97, s. 163
Leg. Duty, 8 & 9 Vic. c. 76; 16 & 17 Vie. ¢.
51; Signature of Wills, 15 & 16 Vic., c. 24;
Mortgage Debts, 17 & 18 Vic., c. 113; Wife’s
Personalty, 20 & 21 Vic., c. 57; Probate Duty,
23 & 24 Vie., cc. 5, 15.]

See INTEREST IN

 

I. ABATEMENT.

6. V., having covenanted by articles to leave
half his property to his wife, devised benefits
to her, and devised the lands of X. to A., sub-
ject to an annuity to B. The widow elected
to abide by the articles, and swept away half

 
Abatement.

thelands. Held, that the annuity also should
abate moietively.

The report of Long v. Short, (1 P. Wms.,
403), corrected, and the doctrine of abate-
ment considered.

V. bequeathed all his moneys in govern-
ment stock, and all his other moneys, on
trust to sell so much of the stock as should
be sufficient to pay the following legacies.
He then bequeathed legacies, and directed
that his trustees should expend all the residue
of his government stock and other moneys
which he should. die possessed of, after pay-
ment of his legacies, debts, &c., inland. Held,
a gift out of the general residue, and that the
legatees should not abate in favour of the
devisee of the land to be purchased.— Jackson
ee Hamilton, 9 I. E.R. 480; 3 Jon. & L. 702.

C.)

1. By will, reciting that the testatrix was
entitled to £2255 stock, she bequeathed the
sum so standing in her name to a trusee, to
divide in the following shares and proportions.
She then gave specific sums to legatees, and
directed that these sums, described as amount-
ing to £1769, should be paid out of the stock,
and that the balance, amounting to £495 or
thereabout, or whatever it might amount to,
should be paid to X. The amount of the
stock was really only £1750. Held, that the
gift to X. wholly failed, and the other legatees
could not be called on to abate rateably with
him.— Williams v. Armstrong, 12 I. E. R. 356.
(C.)

2. A. bequeathed a legacy to H., which she
directed should be paid and retained by him
in the first instance, without any delay or de-
duction, immediately after her decease. She
then made other bequests, and among them,
a bequest of £250 to R. If the full amount
of a debt due to her should be recovered, she
left R. a further sum of £200 in addition; and
she appointed H. her executor and residuary
legatee. Held, that the legacy to H. should
not have priority, but should, on a deficiency
of assets, abate rateably with the other lega-
cies.—Roche v. Harding, 7 I. C. R. 888; 31.
Jur. N. §. 253. (R.)

 

I. Sarisraction or LEcacies.

8. The doctrine of satisfaction does not
apply to a gift by a father to his daughter,
when he has in his hands, by permission of the
executor, a legacy bequeathed to the daughter
by the executor’s testator.—Acheson v. Fair, 2
Con. & L. 208; 3 Dr. & War. 512. (C.)

4. P. devised and bequeathed all his real
and personal property to trustees, to pay S. an
annuity out of the lands of M. and B. during
his life ; and to pay unto his children, viz., to
to Ellen H. £2000, and to Edward, Anne,
Francis, and William, £1000 each; to pay to
J. an annuity for his life out of the lands of
B. and R.; as to all his interest in all his
estates, lands, houses, and landed property, to
the use of his son, H.; appointed Ellen H. his
residuary legatee ; and his trustees to be his

[LEGACIES.]

 

Satisfaction. 549

executors. By a codicil executed the same
day he bequeathed all his household furniture,
and his horses, stock, &c., to H., and directed
that all rents then due by the tenants on the
respective lands should belong to H. Ellen
H. subsequently married, and by a settlement
to which she, her father, and her intended
husband were parties, after reciting that P.
had agreed to give his daughter £2000 for a
marriage portion, money and securities for
money were vested in a trustee for the benefit
of the intended husband aud wife and the
issue of the marriage, in the manner therein
mentioned. By a second codicil, executed
after the settlement on Ellen, P. declared it
to be his intention that all his lands, houses,
&e., should revert to his son, H.; bequeathed
all his money, and securities for money, equally
to Ellen, Anne, and Francis; left to William
the lands of T.; “ these bequests subject to a
bequest already made in my will;” and desired
that all rents due on his property in those
respective lands should belong to his son, H.
Held, that the provision made for Ellen H. on
her marriage, was a satisfaction of the legacy
of £2000 given to her by the will—Barry v.
Harding, 7 1. E.R. 818; 1 Jon. & L.475. (C.)

5. The interest of £300 was given to A. for
life, the principal to be divided among his
children after his death. Wide Street deben-
tures, which, at the time, did not produce more
than sufficient to pay the interest, were appro-
priated for that purpose, and were subsequently
sold out for a sum of £600. Held, that the
debentures having been appropriated for those
entitled to the legacy, the remaindermen were
entitled to the whole residue of them.—Kim-
berly v. Tew, 2 Con. & L. 366; 4 Dr. & War.
139; 51. EB. R. 389. (C.)

6. D. devised his real estates to his wife and
his three daughters, A., B., and C., in equal
shares; and by a codicil bequeathed £1000 to
A., charged on all his real and personal estate.
A. married. Her husband joined her in con-
veying her undivided fourth of the real estate
to trustees, free from incumbrances, &c., by a
postnuptial settlement, which was held not
binding on the wife, no fine having been levied
by her. Held, that the fourth part of the
legacy was not merged in the estate devised to
A. by the will; but that the husband, by the
settlement, released A.’s fourth of the real
estate from the legacy.— Walpole v. M‘Clintock,
71. E. BR. 353. (C.)

7. A devise to a child, of « legal rent-
charge, will not be satisfied by a subsequent
gift, by deed, by way of advancement, of a
rentcharge equal in amount.

G., by will, dated the 20th Nov. 1884, ap-
pointed to his younger children, in pursuance
of a power, £16,000, late currency, giving to
T., as his share, £5000. He also devised to
T. an annuity of £150 for life, charged on
land. By a codicil dated the 13th of Dec.
1844, reciting that he had made a provision
for T. on his marriage, G. declared that the
provision so made for T. should be deemed a
satisfaction of his share of the £16,000, late
550 Satisfaction.

currency, in his will mentioned; and that he
should not be admitted to claim under his
will the sums appointed and bequeathed to
him. By a further codicil, G. devised his
real and freehold estates to his eldest son, E.,
charged with the payment of the several lega-
cies and annuities devised and bequeathed
by his will and codicils thereto, save such of
them as had been revoked by said codicils.
Held, that the devise of the annuity to T.
was not revoked by the codicils—Preston v.
Gormanstown, 13 I. C. R. 329; 7 I. Jur. N. S.
310. (C.)

III. ApEMPTION.

1. The doctrine of satisfaction does not
apply to a gift by a father to his daughter,
when he has in his hands, by permission of
the executor, a legacy bequeathed to the
daughter by the executor’s testator.—Acheson
on 3 Dr. & War. 512; 2 Con. & L. 208.

)

2. An absolute gift in a will to a child will
be adeemed by a portion of the same amount
subsequently given on her marriage, though
the latter be settled on the husband and wife.
Barry v. Harding, 71. HE. R. 3138; 1 Jon. & L.
475. (C.)

3. A purchaser for value of a legacy is but
a purchaser of a chose in action, and is subject
to the same equities in respect of the legacy
as his vendor, and therefore, if necessary,
must refund it to pay debts.—Jennings v. Bond,
81. E.R. 755; 2 Jon. & L. 720. (C.)

4. A., by will, left two legacies to B. and
C., £1000 each. A. subsequently wrote to his
bankers to purchase Dutch bonds to the
amount of £1000 each for B. and C., which
was done. A. also stated that such purchase
was in place of the legacies, and prepared a
codicil to his will, in which he revoked the
£1000 each to B. and C. A. died before he
executed the codicil. Held, notwithstanding
secs. 20, 23, & 24 of 1 Vic., c. 26, that the lega-
cies were adeemed.—Maher v. Lenigan, 2 I.
Jur. 74. (C.)

5. Blanks were left for the names of the
baronies in which the lands, the subject of a
marriage settlement, were situate. After its
execution, the names of the baronies were
inserted, and the deed was re-acknowledged
before witnesses other than those to the ori-
ginal execution of the deed. An affidavit
was made by one of them, verifying the execu-
tion of a memorial and of the deed itself,
though the deed as altered was not re-acknow-
ledged before that witness. Subsequently the
grantor signed a document in presence of the
witness, declaring that the names of the ba-
ronies had been inserted in his presence, and
by his direction, in pursuance of the original
intention of the parties, and for the purpose
of registration only. The memorial was regis-
tered, on production of the affidavit and the
original deed, under the 3 G. 4, c. 116. Held,
foliowing the decision of the Lord Chancellor

[LEGACIES.]

 

Ademption.

in Gardiner v. Blesinton (1 I. C. R. 64), from
which decision, however, the Court dissented,
that the insertion of the names of the baronies
in the deed was an alteration in an immaterial
point ; and that neither the deed nor the regis-
tration were thereby invalidated.

Lands were devised to A. for life, subject
to a term of 1000 years, to secure portions for
his younger brothers and sisters. The testa-
tor, by a deed of 1836, charged a portion for
one of the sisters on the lands, and, by a
codicil referring to the deed, revoked the be-
quest made by the will in her favour. A
party claiming from A., under a deed of 1841,
which was registered before the deed of 1836,
availed himself in the Master’s office of the
codicil to diminish the portions bequeathed
by the will. Hed, that he could not rely on
the codicil, as adeeming the legacy, and at the
same time avail himself of the prior registra-
tion of his deed, by disclaiming knowledge of
the contents of the deed of 1836.—Delacour v.
Freeman, 2 1. C. R. 6383. (RB.)

6. H., by will, dated in 1798, gave to his
wife £1500, which he was possessed of by the
death of his mother, and which he became
entitled to under the marriage settlement of
his father. By a codicil, in 1800, after stating
that his brother E. had married, and had
children, he willed that, after the death of his
wife, the children of his two brothers, E. and
F. (should F. marry and have issue), “should
have the sum of £1687, which he got by the
death of his mother, and that was charged on
the estate of A., in such proportions as his
wife should will it.” At the date of the
codicil, the £1687, which was the sum left by
the will, was lent on a judgment against A.
It was paid off in 1803, and invested by H. in
£34 per cent. stock. Held, that the legacy
given by the codicil to the children of the
testator’s brothers was a general or demon-
strative legacy (not a specific one), and was
not adeemed by the payment of the judgment
and investment of the moneys in the funds.—
Thomas v. T., 3 1. C. R. 399. (R.)

7. Lands, held for lives renewable for ever,
were conveyed by marriage settlement to
trustees for the use of A. for life, remainder,
subject to a jointure, upon trusts, to convey
for the benefit of the issue; in default of issue,
as A. should appoint; in default of appoint-
ment, to the heirs of A. There being.no issue,
A., in 1854, devised the lands, stating that he
held them for lives renewable for ever, to B.
for life, subject to the rent and renewal fines
payable thereout; and devised all the residue
of his property to his executors, C. and D.
In 1856, one of the lives in the original lease
subsisting, a f. f. grant of the lands was made
to A. under the Ren. Lease. Con. Act, sub-
ject to w rent; and, in 1857, A. purchased,
and obtained a conveyance of the f. f. rent.
Held, that the devise of the lands to B. was
not affected by the f. f. grant; but that the
rent was not merged or extinguished, and
passed under the residuary devise to C. and
D.—Dizon v. Rowan, 9 I. C. R. 865. (R.)

 
Refunding.

IV. RerunDine oF.

1. V., after giving some legacies, bequeathed
all the rest of his real and personal property
upon trust to sell the realty, and to invest the
produce, along with the personal property, as
it should be received from his executors; and
to pay, amongst other sums, £5000 to his
daughter, the plaintiff, on her attaining 21,
or day of marriage. He appointed his wife
executrix, and the defendants, H. and R.,
executors; and appointed his wife and H.
guardians of the plaintiff. The trustees did
not act. More than £8000 was paid into the
hands of H., who paid the plaintifi’s mainte-
nance during her minority. After coming of
age, the plaintiff filed against H. and R. a bill
to recover the principal, which had not been
paid to her. A decree to account was pro-
nounced against H. and R., the latter of whom
then came to a settlement with X., the resi-
duary devisee and legatee; and, having ascer-
tained what would be coming to X., gave a
mortgage for the deficiency of the personal
estate. X. went into possession of the real
estate, and joined R. in securing, under the
mortgage, pecuniary legacies due to some
other legatees. The assets were squandered.
The plaintiff filed a bill, making X. a party.
Held, that X. was bound to refund; and that
the mortgage, if given in lieu of assets, should
be treated as so much assets for the benefit of
the plaintiff and unpaid legatees.

That the payment to her guardian did not
bind her. ‘

During thirteen years the plaintiff did not
object to the several dealings with the assets,
she not having been fully apprised of her
rights. Held, that this delay did not amount
to a release, or bar her right to relief.

By V.’s marriage settlement, £1,000 was
secured out of his property for his wife during
life; remainder to their issue. The plaintiff
was their only issue. V., by will, gave the
interest of £2000 to his wife, expressly in ad-
dition to her claims under the settlement;
and £5000 to the plaintiff (without referring
to the settlement) on her attaining 21 or day
of marriage. Held, that she could not obtain

-both sums, but must elect between the settle-
ment and the will.—O’Neill v. Hamill, Beat.
Rep. 618. (C.).

2. A purchaser for value of a legacy is but
a purchaser of a chose in action; is subject to
the same equities in respect of the legacy as his
vendor; and must, if necessary, refund it to
pay debts.— Jennings v. Bond, 8 I. E. R. 755;
2 Jon. & L. 720. (C.)

 

V. Lapsep or Voip Lrcactizs.

1. How constituted.
a. Lapsed.
b. Void.
2. Who takes thereupon.
a. In case of Personal Estate.
b. Money arising from Real Estate.

 

[LEGACIES.]

 

Lapsed. 551

V. 1. a. Lapsed Legacies.

3. V., by will, bequeathed annuities to each
of his daughters, severally, with power of ap-
pointment to their children, and if they died
without leaving issue, then the annuity of the
daughter so dying to go to his sons, to be
equally divided between them; but if either
of his sons died before such event, then his
proportion im such annuity to go to such issue
as he should leave; if any of his sons should
die without issue, then to his other sons, except
he or they should leave a widow or widows,
and if so, to such widow or widows during her
or their lives; and after to his sons or the issue
of such sons as may have died. He then de-
vised his freehold and leasehold property to his
four sons, A., B., C., and D., in the following
proportions: to A. one-third, to B. one-third,
and the remaining one-third to be divided
between C. and D., after payment of the an-
nuities ; providing that in ten years after his
death his “income” should be equally divided
between his four sons, after payment of the
annuities, with the following provision :—
“VFlaving left to my eldest son D. one-fourth
of my income, to take place in ten years after
my death, it is my willthat then he shall have
his choice either to take the one-fourth of the’
income as mentioned above, orto take instead
of one-fourth of the income the house and
demesnes of X. and Y., subject to the marriage
settlement of the said D., and subject also to
asum of £500 and interest at £6 per cent. on
said sum of £500;” and after a bequest of his
furniture, &c., “I appoint my executors resi-
duary legatees, in trust, first with the produce
of such property to pay each of my daughters
(naming them) £5 each, and such further sum
as shall be necessary for their maintenance
until the first payment of annuity shall be
made to them.” He then named his sons D.
and C., and his son-in-law executors. In the
following year he added a codicil, naming his
son C. as executor in place of D., with the fol-
lowing clause :—“ And with the view of re-
moving any doubts that may exist as to the
continuance of annuities to my daughters
(naming them), it is my will, and so intended
by me, that the same respectively be only pay-
able during their respective lives, and in the
event of their dying leaving children, the
share of such so dying to survive to their
children, and subject to appointment as in
my will named.” Held, that the several an-
nuities did not become extinct upon the death
of each daughter respectively.

That X. and Y. (D. having elected to take
them in lieu of his one-fourth of the testator’s
income) were exonerated from the payment of
the annuities.

That the residuary legatees did not take a
beneficial estate in the residue.—Stevelly v. S.,
TI. Jur. 145. (C.)

4. V., by will gave his personal, and a por-
tion of his real estate, to trustees, directing
that they should convert them into money,
Out of the fund so to be realised he bequeath-
ed two legacies (among others) to persons
named in his will, and after other bequests
552 Lapsed.

directed that the residue of this fund, after
payment of his debts and the legacies be-
queathed, should be divided into twelve equal
portions, and paid to persons named, among
whom were the above-mentioned legatees and
V.’s heir-at-law. The proceeds of the sale of
V.’s personal estate, and of the portion of his
real estate so directed to be sold, left a sur-
plus fund after payment of the debts and
legacies created in the will, with the exception
of the two above-mentioned legacies; the per-
sons who would have been entitled to the
latter having died in the the lifetime of V.
and their legacies having thereby lapsed.
Questions arose as to the proper disposition of
these lapsed legacies, as also of the portions
of the residuary fund to which those legatees
would have been entitled in case they had
survived V. A reference to the Master hav-
ing been directed, he found by his report that
the two lapsed legacies formed a part of the
residuary fund that remained after payment
of the bequests created by the will, composed
of the real and personal estate directed to be
sold in the proportion of the proceeds of the
personalty to that of the estate; that the
lapsed shares in the residuary estate, to which
the above-mentioned two legatees would have
been entitled in case they had survived V.,
were to be divided between the heir-at-law of
V. and his other next-of-kin, in the proportion
that the residue of the personal estate bore to
that of the real estate; that the two lapsed
legacies formed part of the general residue of
the fund composed of the real and personal
estate, and were divisible among the surviving
residuary legatees in the willnamed. Excep-
tions by the heir-at-law—that the Master
should have found that the lapsed legacies
formed portion of V.’s real estate as to which
he died intestate, and as such should go to the
heirs-at-law in equal proportions; and that the
same rule should be applied to the lapsed
shares of the residuary estate—overruled.—
[Roberts v. Walker (1 Rus. & My]. 753) ap-
proved of.J|—O’Kelly v. Chamberlain, 7 I. Jur.
310. (C.)

1. V. bequeathed to his four daughters a
legacy of £500 each, to be paid to them respec-
tively, on the day of their respective marriages,
with the consent of his wife and executors ;
with power to each of them to dispose thereof
by deed or will as she might think proper ; the
four legacies to be charged on his personal
estate, and the deficiency to be raised out of
his real estate, which he empowered his trus-
tees to do by demise, sale or mortgage; and
directed his executors to pay not less than
£30 or more than £40 a-year for his daughters’
maintenance until their respective marriages,
out of his personal estate, and, on a deficiency,
out of his real estate. By acodicil he devised
four additional legacies of £500, to be paid to
each of them in the time and manner therein
mentioned. One of the daughters died un-
married, having bequeathed her legacies to
the survivors. eld, that the legacies of the
daughter who died could not be raised out of
V.’s real estate.

That the legacies to the surviving daughters

[LEGACIES.]

 

Void.

were not raiseable out of the real estates
before their marriage with consent.— Bolton v.
B., 121. C. B. 233. (B.)

2. V. (inter alia), devised unto B. the in-
terest in lands, held pur autre vie, to have,
receive, and take the rents issues and profits
thereof; but if B. “should happen to die
before he attains the age of 21 years or mar-
ried,” then over. Held, that “or” could not
beread “and;” and that although B. attained
21, yet that, having never married he had not
acquired an absolute estate.—Jn re Cleyg’s
Estate, 131. C. R.163. (L.E.C.)—[Revd.: 14
I.C.R. 70; 81. Jur. N. 8. 21. (C.A.)]

V. 1. b. Void Legacies.

3. V., by will, after bequeathing legacies
and directing his debts to be paid, ordered all
his effects to be sold by auction, and such
money or valuables as he should die possessed
of to be handed over to D., to be applied to
the use of M. to a certain amount during her
life; and if after her demise any residue re-
mained, such residue to be expended in masses
for his soul’s sake ; and directed a security in
the hands of J. to be applied as above directed.
“My Royal Canal stock is to be sold; also, my
Grand Canal debentures, as necessity may
require, at the discretion of my executors.”
Held, that the whole of the residue, including
the stock and debentures, was disposed of
under the residuary clause, and passed to the
executors on the death of M.

That the bequest for masses for the testator’s
soul was valid, and not void as a superstitious
use.—Read v. Hodgens, 71. E. R.17. (R.)

4. A bequest of money for masses for the
repose of the soul of the testatrix—Held, not
to be void, or against law, as being for’ super-
stitious uses.—Commissioners of Ch. Don. and
Beg. v. Walsh, 71. E. R. 34, note. (C.)

5. A money fund was settled in trust for the
issue of the marriage of M. and his wife; after
their deaths, in such shares, &c., and at such
times as M. should appoint. M., by will, ap-
pointed the fund to his three sons in equal
shares, “their respective portions to be paid
to them as and when they should attain their
respective ages of 25 years, and not before.”
Held, that the appointment was void for re-
moteness.—Massey v. Barton, 7 I. E.R. 95. (R.)

6. V., by will, gave to his daughters M. and
E. a legacy of £6500 each, charged upon his
estate of C., and gave to his sons all the re-
sidue of his property. By deed, the sons
arranged that the estate of C. should be con-
veyed to W., the eldest son, charged with
sums of £4000 each for the younger sons. E.,
who had no assets save the legacy of £6500,
by will gave to T., one of the sons, a legacy
of £446. M. als6 had no assets save the
legacy of £6500, and by will gave to T. a
legacy of £400. F., another of the sons of V.,
died intestate, and T., as one of his next-of-
kin, became entitled to a distributive share of
his assets, including the £4000 charged on the
C. estate. T. by will bequeathed his patri-
mony, bonds, and judgment debts charged on

 
When

the estate of Clonea. Held, that the word
“patrimony” included T.’s distributive share
of F.’s charge of £4000, but did not include
the legacies under M.’s and E.’s wills.

The word “patrimony” is not necessarily
restricted to property derived directly from a
father.

T., in 1845, bequeathed personal estates in
the following terms :—“‘ The interest of which
I leave to X., and he is never to demand the
principal so long as the interest is satisfac-
torily settled; and in case he shall die without
male issue lawfully begotten, and arriving at
the age of twenty-one years, it shall then
descend to his brother Y., and his male issue
lawfully begotten, and arriving at the age of
twenty-one years; and if he should die with-
out such issue lawfully begotten, then I be-
queath the same to W. and his family, on his
taking the name of M., so that the estate may
remain in the family: the interest of all bonds
which remain on the estate to continue to
remain on the estate, and to descend from
heirs to heirs, as above stated.” Held, that
notwithstanding the 29th section of the 7 W.
4, & 1 Vic., v. 26, the failure of issue intended
could not be construed to be a failure of issue
at the death of the first taker, a “contrary
intention” appearing by the will; and that
consequently the gift over was void for re-
moteness.—Green v. Giles, 5 I. C. R. 25; 11.
Jur. N.§. 90. (C.)

1. J. bequeated to R. and W. £2800, upon
trust to lay out at interest, and pay the yearly
interest to M., for her separate use, it being
his will that that sum should not be liable to
the debts of her husband P., or any future
husband ; after her death, upon further trust
to pay the £2800 among the children of M., as
she should appoint; in default of appointment,
to such children equally, at twenty-one or
marriage ; and if she should die in the lifetime
of P., without issue, or if such issue should die
before twenty-one or marriage, then to pay
the £2800, and all interest that then might be
due thereof, to B. The will contained a resi-
duary bequest to B. M. never had any issue,
and survived P. B. died in J.’s lifetime.
Held, that M. was entitled to a life interest
only in the produce of the £2800, and that in
the event which had happened, the corpus of
the fund, subject to that life interest, was not
bequeathed by J.’s will—Cole v. Lucas, 5 I.
C. R. 575. (C.)

2. A., in 1806, bequeathed a chattel lease to
R. and the heirs of his body; and if R. should
happen to die without issue, to C. and the
heirs of his body; and if both R. and C. should
happen to die without issue, to J. and the
heirs of his body. He then directed that if
R. and C. should die without issue in the life-
time of J., “whereby J. would become entitled
to the premises,” £2000, bequeathed to J.,
should be paid to other persons: and that if
R., C., and J. should all happen to die with-
out issue, or if R. and C. should die without
issue in the lifetime of J., and he should refuse
to pay the £2000, if he had received it under
the will, then, and in either of such cases, he

[LEGACIES.]

 

Void. 553

gave the lease to G. and the heirs of his body.
A. then directed that, if “by either of the
events aforesaid happening in the lifetime of
G., he should become entitled to the lease,”
G. should pay £2000 bequeathed to him to
other persons; and if R., C., J. and G. should
all happen to die without issue, or in case R.,
C., and J. should die without issue in the life-
time of G., and he should refuse or neglect to
pay over the £2000, then, and in either of such
cases, he gave the lease to T. and the heirs of
his body ; and if by “ either of the events last
mentioned happening in the lifetime of T., he
should become entitled to the lease,” then he
was to pay over £2000 to certain persons.

R., C., and J. all died without having a child,
and in the lifetime of G. and T., and G. did
not pay over the £2000. Held, that the be-
quest to T. was too remote, and did not entitle
him to the lease.

A. then gave other lands to X., and the
heirs of his body; and if he should “happen
to die without issue living at the time of
his death,” gave these lands to R. and the
heirs of his body, and to C. and the heirs of
his body the first named chattel lease; and if
X. and R. should “ die without leaving issue,”
then A. gave the second set of lands to C.,
and the lease to J. and the heirs of his body.
A. then declared that, if X., R., and J. should
“die without issue,” or if J., becoming entitled
to the lease by the last bequest, should omit
to pay over £2000 to the persons named, he
gave the lease to G. and the heirs of his body;
and directed that “if X., R., and C. should die
without issue as aforesaid,” the second set of
lands should go to J. and the heirs of his body,
and the lease should go to G. and the heirs of
his body; and if J. and G. should respectively
become entitled to the lands devised to them;
if X., R., and C., died, without issue, in the
lifetime of G., G. was to pay £2000 bequeathed
to him to certain persons. And if“ X., R,
C., and J. should die without issue as afore-
said,” A. gave to “G. and the heirs of his body
the second set of lands, unto 'T. and the heirs
of his body, and his several estates and in-
terests in the leasehold lands.” Held, that the
words “ die without issue” were to be read in
all these bequests ‘‘die without leaving issue ;”
that the word “and,” in the last clause, might
be transposed, and placed immediately before
the words “unto T. and the heirs of his body,”
and that X., R., C., and J. having all died
childless, T. was entitled to the lease.—
Falkiner v. Hornidge, 6 1.C. R. 551. (C.)—
(Affirmed: 8 I. C. R. 184. (C.A.)]

3. If a charitable bequest be void by express
enactment, it cannot be carried out cy-pres ;
but a bequest, void as being contrary to the
policy of the law, will in general be carried
out cy-pres.

If a testator shows, not an intention of
general charity, but to give to some particular
institution in some particular place; and such
intention cannot be carried out; the Court
will not hold the gift applicable to charity
generally: it will fail altogether.

In 1861, V. bequeathed £500 to two R. C.
priests, and the survivor of them, to be applied

70
554 Personalty.

as they should deem best for the education
and maintenance of two priests of the order of
St. D. in Ireland. Held, void, as contrary to
the policy of the 10 G. 4,c.7; and that the
bequest, being for a general charitable pur-
pose, should be carried out cy-pres under the
sign manual. ‘

V. bequeathed a legacy to a R. C. priest,
upon a secret trust, to apply it towards the
redemption of the rent of a R. C. church,
held by Dominican monks, as trustees, subject
to a rent of £60. The church was numerously
frequented, and was an ordinary and principal
place of worship for R. Catholics in the City of
Cork. Held, that this bequest was void, as
contrary to the 10 G. 4, ¢. 7; and that, being
confined to a particular charitable purpose,
it could not be carried out cy-pres—Sims v.
anes 161.C. R. 191; 9 I. Jur. N.S. 404.

(R.)

{On appeal, the first bequest was Held—
utterly void, under the 10 G. 4, c. 7, as in-
volving the commission of misdemeanours ren-
dered punishable by that Act. On the appeal,
on the second bequest; Held, that the Rolls
decision should be affirmed.—Sims v. Quinlan,
171. C, R.43; 101. Jur. N.S. 41. (C.A.)]

 

V. 2. a. Who takes when a legacy of personal
estate lapses.

1, A., after several bequests, directed the
residue of his property to be invested, and
bequeathed thereout to M. an annuity during
life, with liberty to will it, or the principal
thereof, to any or all of his children, in such
proportions as she might think fit; in de-
fault of appointment, to his children, share
and share alike; and that if there was a sur-
plus of his property, after satisfying the be-
quests, it should be added to each bequest, in
proportion to its amount. M., by will, re-
citing the power, gave S. so much of the
stock as would, at the price on the day of her
decease, produce £700; to E., in like manner,
£700; and gave to trustees all the rest, &c.,
of said government stock, upon trust to pay
the interest thereof to her daughter, I., for
her separate use, with remainder as I. should
appoint. §. died in the life of M., leaving
issue. Held, that the legacy to S. lapsed.

That this lapsed legacy did not fall into
the residue bequeathed to I., but passed, as
undisposed of, under A.’s will; the gift of
the residue being a specific bequest.—Jn re
Browne, 21. Jur. N. 8. 315. (C.)

2. In 1821, V. devised the lands of C.,
which he held for three lives and 31 years,
to trustees, and their heirs, in trust to permit
his wife to receive an annuity, and on further
trust, to apply a yearly sum to raise £500 for
his daughter; and, subject to the annuity and
charge, devised the interest in the lands to
his son, R., and his heirs; and as to all the
rest, residue, and remainder of his property,
consisting of stock, &c., and other property,
not thereby disposed of, gave, devised, and
bequeathed it to his wife, subject to the dis-
charge of his just debts. V. directed her to
apply that residue, in the first instance, in

[LEGACY.]

 

Lapse of.

discharge of the debts; and if it proved in-
sufficient to pay them, he charged other lands
thereinbefore devised to his son, J., with a
portion of the deficiency, and the lands there-
inbefore devised to his son, R., with another
portion of the deficiency. R. died in his
father’s lifetime. Held, that the reversionary
term of 31 years in the lands of C. passed by
the residuary clause.

Lapsed bequests of personal estate will
pass by a residuary clause, unless an inten-
tion be apparent to exclude them.—Blachford
y. Long, 71. C. R. 87. (R.)

3. A., having a general power of appoint-
ment over a fund settled on her husband for
life, bequeathed several legacies thereout,
and the remainder share and share alike to
her sisters; and as to “any other” residue
of moneys or property not specified and
disposed of, directed it to be given share
and share alike to her then surviving sisters,
who might be living at the time when her
will and the bequests therein might become
available. One of the sisters died in A.’s life-
time, who died before her husband. Held, that
the lapsed share of the deceased sister passed
under the residuary clause to the surviving
sisters.

That those sisters only who survived the
husband took under the general residuary
clause.— Hickson v. Wolfe, 7 I. C. R. 452. (R.)
—(Affirmed: 91. C. R. 144. (C.A.)]

4, A., being tenant for life of the lands of
K., in strict settlement, with power to charge
them with £2000 by deed or will, made his
will, by which, after reciting the power in
terms, he disposed of the entire £2000, in se-
veral legacies to his nephews and nieces:—
“which said several legacies, making in the
whole the sum of £2000, to be raised and paid
out of the lands of K., pursuant to the power
given to me by the said deed, and by virtue
of every other power in me vested; the said
sums hereby bequeathed to be raised and paid
out of the said lands to such of the legatees
as are married, as soon after my death as
reasonably may be, and, to such other of the
legatees as are not married, on their respec-
tively attaining the age of twenty-one or
marrying.” Then followed a gift over of the
share of any legatee dying before twenty-one
or marriage. The will also contained a resi-
duary bequest to J., whom A. appointed his
residuary legatee.

One of the legacies lapsed, by reason of the
death of the legatee in the life of A. Held,
that the lapsed legacy was part of the residue
of A.’s personal estate.—Jn re Osborne, 7 I. C.
R.546. (LE.C.)

5. A., after many pecuniary and some spe-
cific bequests, proceeded:—“ The remainder
of my property I leave to my sister, S. F.”
Then, after a few legacies, “I appoint my
two sisters, 8. F. and O. G. my executrixes
and residuary legatees of this my last will.”
Held, that the gift of the remainder of her
property to 8. F. was not revoked; and that
the appointment of 8. F. and O. G. residuary
Conditional.

legatees, only gave them any legacies which
had lapsed.—ZJn re Jessop, 11 I. C. R. 424. (C.)

 

_V.2.b. Money arising from Real Estate.

1. V., seized of a freehold estate, and pos-
sessed of a term for years, with a ¢. g. cove-
nant for renewal, bequeathed to his daughter
a legacy of £600, charged both upon the free-
hold estate and upon the term; and directed
that the legacy should be paid upon her attain-
ing age, or day of marriage (whichever should
first happen), with interest from the day of
his death. Held, that this legacy, so far as it
was charged upon the term, was vested, and
consequently was divisible in equal shares
amongst the legatee’s next-of-kin, she having
died unmarried, under age, and intestate.—In
re Hudsons Minors, Dr. Rep. temp. Sugden, 6.
(C.)

2. R., seized in fee of the lands of X., by
will, made in 1829, devised them to A. for
life, remainder to his first and other sons
in tail male; in default of such issue, to B.
and C., share and share alike. After some
dispositions of other property, followed this
clause :—“I devise and bequeath the residue
and remainder of my estate and cffects, not
herein specifically devised, to my brothers, J. 8.
and D.§., share and share alike.” In 1830,
C. died. In 1832, R. made a codicil, by
which he made no alteration in the dispo-
sition of the lands of X. The codicil did not
in terms re-publish the will, but adverted to it
more than once, and confirmed the appoint-
ment of the trustees named. Held, that the
codicil was a general re-publication of the
will.

That the lapsed devise to C. did not come
within the operation of the residuary devise,
but passed to the heir-at-law.—Jn re Swiney, 6
I. C. R. 455. (1.E.C.)

 

VI. ConpiITIONAL AND CONTINGENT
LEGACIES.

3. The rule is, that, whenever a legacy is
given to a class of persons, and the gift is
immediate, those only take who answer the
description at the testator’s death; but, when
the enjoyment is deferred, as by the interven-
tion of a life estate, or by appointing a future
time for payment, those only take who, at the
prescribed period, answer the description.—
Norman v. N., Beat. Rep. 4380. (C.)

4, If L. married a professional gentleman,
or a man engaged in trade or business, and
not possessed of landed property whereon to
make a suitable provision for her, the will
directed that the fund should be settled to
her separate use; but if she married a gentle-
man of landed property, who should make
a suitable provision for her, the trustees were
directed to pay to him the whole of the fund,
on such settlement being made. L. married a
gentleman having no profession or trade, and
no landed property at the time of the mar-
riage. He afterwards acquired landed ‘pro-
perty. Held, that this marriage was within
the first clause of the will, and that a settle-
ment of the property acquired after marriage

[LEG ACIES.]

 

Contingent. 555

and the death of L., on her issue, would not
authorise the trustees to pay him any part of
the fund.— Briscoe v. B., 7 1. E. R. 123; 1 Jon.
& L. 334. (C.)

5. A. devised all his real, freehold, and
personal property to his son, “in case he
shall recover from his present illness ;” and
made his daughter “residuary legatee,” re~
commending her, if she married, to have such
property as he left her settled to her separate
use. Both son and daughter survived him.
Semble—The condition annexed to the son’s
devise was void, or only extended to his sur-
viving his father, and he would then have
taken the property absolutely.

Semble—The residuary clause would have
carried the real estate if the som had died
in the father’s lifetime.—Alleyne v. A., 8 I. E.
R. 493; 2 Jon. & L. 544. (C.)

6. D. bequeathed £1500 to her mother for
life, and desired that it should be given share
and share alike between her two sisters, A.
and B., after her mother’s decease, if they
survived her ; but if neither of her sisters sur-
vived her mother, she desired that the whole
of the property should be left entirely to her
mother and placed at her disposal. A. died
before, and B. survived, her mother: Held,
that the gift to A. and B. was contingent on
the event of both surviving their mother; that
there was a gift of the entire, by implication,
to the survivor if either of the sisters died in
the mother’s lifetime, and therefore that, in
the events which had happened, B. took the
whole £1500, and no part of it went to A.’s
representative.—[ Scott v. Bargeman, 2 P. Wms.
68; Skye v. Barnes, 3 Mer. 335; distinguished
and approved of.]—Graves v. Waters, 10 I. E.
R. 234. (R.)

7. V. devised lands to his sons, and left
legacies to his daughters, to be paid at 21, or
marriage with consent; and in case any or
either of them should at any time thereafter
intermarry with a Papist or person professing
the R. Catholic or Popish religion, or a repu-
ted Papist, he thereby revoked, annulled, and
made void the devises and bequests made to
such child or children, and left to each of his
children so offending one shilling, and devised
and bequeathed such child or children’s de-
vises or shares over.

Semble—The condition is legal, and is not
limited to the period of payment of the lega-
cies, but extends to the whole life of the
daughters.

Held, that a daughter who married a R.
Catholic was entitled to the interest due be-
fore the condition broken——Duggan v. Kelly,
10 I. E. R. 295. (R.)

(Held, that the restriction upon a daughter’s
marrying a R. Catholic was confined to her
minority.—Duggan v. Kelly, 10 I. E. R.473. (C.)]

8. A bequest of an annuity to a widow, so
long as she shall continue single and un-
married, will fail if the widow marry in the
testator’s lifetime, though with his knowledge,
unless some general intent in the mind of the
556 Conditional.

testator, that the widow should have the an-
nuity notwithstanding her marriage, can be
inferred from the terms of the bequest.—
West v. Kerr, 6 I. Jur. 141. (C.)

1. C., tenant for life of lands, upon his
marriage, settled them, and charged them with
a jointure for his intended wife. The deed
was not enrolled pursuant to the statute for
the abolition of fines and recoveries; and on
the death of C. the remainderman entered.
The wife presented her petition praying that
she might be entitled to dower thereout. Held,
that the settlement created an equitable bar
to her claim for dower thereout.

C. devised fee-simple lands “upon trust to
pay the rents and profits thereof to B. for the
term of her natural life, provided she did not
marry ;” and at her decease to her children.
Held, that this devise, by virtue of the 3 & 4
W. 4, v. 105, disentitled the widow to her
dower ; and that this was a condition subse-
quent.

Semble—That she could not claim under the
10 Car. 1, sess. 2, c. 7, dower out of lands of
the husband, not charged by the settlement,
as she was not under the circumstances dow-
able out of those lands.—Cooper v. C., 11.
Jur. N. 8. 370. (C.)

2. A. bequeathed all her property, real and
personal, to her son; and, in the event of his
receiving a sum of £450 or thereabout, to
which she considered herself entitled, re-
quested that he would add to it £50 to make
up £400, which she left to her grand-daughter.
A. received the £450 in her lifetime. Held,
that the legacy, as to the £150, was not specific
or demonstrative, but conditional on the son
receiving the £450; that the grand-daughter
was not entitled to be paid that sum out of
A.’s general assets.

That £400 should be read £500 by construc-
tion. Though the Court may inspect the
original will of personal estate, with a view to
its construction, it has no jurisdiction to de-
cide that the probate is erroneous.— Taylor v.
Creagh, 81. C. R. 281. (R.)

3. A gift of personalty to A. for life, after
her death to B. ; if B. die unmarried or without
children, then over, does not vest absolutely in
B. upon her surviving A. and being married.—
O’ Mahony v. Burdett—10 I. C.R. 14551. Jur.
N. 58.25. (C.A.)

4, V. made his will, reciting that under the
will of J. he was seized in fee of the lands of
N. and W., and possessed of leasehold in-
terests in the said lands of N. and the lands
of B. The will then recited that V. be-
lieved that he would have personal property,
exclusive of his chattel interests, in land,
sufficient to pay off his debts and funeral and
testamentary expenses. It then recited his
desire to give E. all his said fee-simple and
leasehold estates, he (E.) paying £10,042. V.
then devised to E. all his “estate and interest
in the aforesaid lands and houses, upon the
terms of his paying to me or my executor the
said sum of £10,042.” V., at E.’s decease,
was entitled, under the will of J. to the lands

[LEGACIES.]

 

Cumulative.

of C., which had been held for a term which
had expired before the date of V.’s will.—
Held, that the lands of C. did not pass to
E. under V.’s will— Mooney v. M‘Donnell, 15
I. C.R. 84. (C.A.)

5. V. devised and bequeathed all his real
and personal estate to his daughter, subject to
the following conditions, and to the further
disposition of his property in the event of the
non-observance thereof: First, that his daugh-
ter should not marry a cousin-german ; if she
made such a marriage he gave her £1000 sub-
ject to the next condition, and left all his
property, that should remain after payment of
the £1000 to his brother and his brother’s
wife, and the survivor of them ; and, after such
survivor’s death, he Teft his farms of C. and
G. to their sons and their issue as tenants in
common, with like remainder to his brother’s
unmarried daughters; and all the residue of
his property, save his said farms, he left to
his nieces after payment of the £1000. Second-
ly, that if his daughter should marry, a jointure
of £200 a-year should be settled on her, and
£4000 at least should be secured to the issue
of such marriage. In the event of such a join-
ture, and the £4000 not being so secured, he
left all his property, if his daughter did not
marry a cousin-german (or if she did, then in
lieu thereof, said sum of £1000), after such
marriage, upon trust to pay its annual income
to her for her separate use, and after her
death to dispose of all his property, or of the
sum of £1000 among her issue as she should ap-
point ; if there should be no issue, as she should
direct; but having regard to the condition,
that if she married and died without lawful
issue, the lands of C. and G. should go in the
manner therein mentioned. He left all the
residue of his property, save these farms to
his nieces, subject to a sum which he em-
powered his daughter to dispose of in a certain
event which did not occur. She married her
cousin-german, who made no settlement, and
died without having made any appointment of
the £1000. Held, that her administrator was
entitled to it— Welply v. Cormick, 16 I. C. R.
74. (R.)

 

VII. CumuLaTIvVE orn SUBSTITUTIONAL
LEGACIES.

6. The Court considers, on general princi-
ples, either that the legacies are cumulative
or substituted; but in neither case can parol
evidence be brought to show an intention
against the construction which the Court puts
on the instrument, because that would be
using it to contradict the will itself; that,
therefore, is not a case of presumption, but
purely a case of construction.— Hall v. Hill, 4
I. E. R. 43; 1 Dr. & War. 94. (C.)

7. It is perfectly clear on all the cases, that
an addition to a former gift shall partake of
the same qualities, on the ground that when
you say you give it in addition, you mean to
give it with the like circumstances, in every
respect, as that to which it is an addition.
So, when one legacy is substituted for an-
other, wherever an intention is shown not to
Cumulative.

alter the nature of the gift, but to lessen or
increase the amount, then the substituted
legacy shall correspond in every respect with
the original. But there is no authority for
holding that, because a testator in one part
of his will has givenan annuity to his daughter
for herself and her children, and in a subse-
quent part of the will there is a gift of an-
other annuity toall the children of the testator,
that the latter shall receive the same construc-
tion as the former.—[Sugden, C.|—Heron v.
Stokes, 4 I. E. R, 289.—[Reversing on re-hear-
ing the decree, JI. E. R. 163. (C.)—Decree on
re-hearing reversed, 12 Cl. & Fin. 161.]

1. Testator devised all his estates to his
wife for life, charged with an annuity of £50
for his niece, to be payable from the day of
his death, and with a further annuity of £50
for the same niece, to commence from the
day of the death of his wife; if the niece died
without issue, the annuity was to cease. Held,
that those annuities were successive and not
cumulative—Bayley v. Quin, 2 Dr. & War.
116. (C.)

2. Testator bequeathed to his natural
daughter, M., £2000, and afterwards, in a
codicil, bequeathed to M. £3000, in addition
to the £2000 already given; and by a subse-
quent testamentary instrument, stating his
wish to alter his will, charged the whole of
his estate with £20,000 for D., the same per-
sonas M. Held, that the legacy of £20,000
was substitutional and not cumulative.—
Russell v. Dickson, 2 Dr. & War. 133; 1 Con.
& L. 284; 41. E.R. 339. (C.)—Affirmed: 11
I. E.R. 418. (C.)—[Affd.: 4 H. L. Cas. 293.]

8. K., by marriage articles, agreed to settle
£50 a-year upon his wife (in the event of her
becoming a widow), payable out of the lands
of C. Subsequently he bequeathed “to my
wife during her life the sum of £50 yearly
(£50 yearly being settled on her by me on our
marriage), payable out of the lands of C.”
Held, that the widow took only one annuity
of £50.

When a person was bound to do an act, and
had not done it, unless his will be construed
to be a performance thereof, it must, in the
absence of proof of a contrary intention, re-
ceive that construction.—In re Power, F. &
K. 282. (R.)

4. When a testator had given several lega-
cies by a complete will and codicils, and by a
subsequent instrument, purporting to be a
“last will and testament,” proceeded to give
several legacies, different in amount, to the
same legatees, but suddenly died before the
second will was completed, and the Ecclesias-
tical Court granted probate of both instru-
ments as one will—Held, that such legacies
were cumulative. 7

The general rule as to whether bequests are
substitutional or cumulative is, that prima facie
bequests given by a later instrument are to be
taken to be cumulative; for the person who
gives twice is to be supposed to give two
gifts.—[Lefroy, B.]

And to be justified in deeming a second

[LEGACIES. ]

 

Substitutional. 557

bequest substitutional, there must be some-
thing from which to deduce an intention to
that effect.—Armstrong v. Millar, 4 I. E. R.
659; Long. & T. 557. (E.E.)

5. X. devised and bequeathed all his pro-
perty, real and personal, upon trust to pay
two annuities charged on particular denomina-
tions, and to pay legacies to his five children,
A., B., C., D., and E. He then gave all his
real estate to his son H., and made A. resi-
duary legatee of the personal estate. By a
codicil he bequeathed all his household furni-
ture to H., and directed that all the rents due
at his death should go tohim. By a second
codicil he bequeathed all his money and secu-
rities for money to A., B., and C., share and
share alike, subject to a bequest made in his
will. Held, that the legacy given by the
second codicil to A., B., and C., was not in
substitution of those given by the will, but
that they were entitled to both.

That the devisee of the real estate was
entitled to have the arrears of head rent due
at X.’s death paid out of X.’s personal estate,
and that the rule was not altered by a bequest
to him of all rents due at X.’s death.

That the residue of the personal estate given
by the will was primarily charged with the
pecuniary legacies to A., B., C., D., and E.;
and that the legacy of “money and securities
for money,” in the second codicil, though
specific, was charged with these pecuniary
legacies on failure of the residuary personal
estate, and the real estate devised to H. was
not bound to contribute.

A specific legacy may be charged with a
pecuniary legacy, but not without a clear and
manifest intention that it should be so.

Cases of Joy v. Campbell, 1 Sch. & Lef. 339,
and Spong v. Spong, 3 Bli. 95, considered, and
errors in the reports of them corrected.—
Barry v. Harding, 71. E. R. 313; 1 Jon. & L.
475. (C.)

6. A. in 1838 devised his real estates at
M. to his nephew, and bequeathed legacies
amounting to £8000 to other persons, which
legacies were primarily charged upon the
moneys which might be in bank to A.’s credit
at his death. In 1839 the nephew, in com-

‘pliance with the express desire of A., purchased

real estates at C. A., out of moneys standing
to his credit in the bank, lent the purchase
money to the nephew, who shortly afterwards
repaid it in part, but a balance of £7700 still
remained due to A. By a codicil in 1840, A.,
reciting that he had devised real estates to
his nephew, charged them with £8000, with
interest at the rate of £5 per cent. from his
decease, and directed that £8000 and interest
to be paid to his executors within six) snths
from his decease, for the purpose of paying off
legacies named in his will. Held, that parol
evidence was admissible of facts showing that
A. stood in loco parentis to the nephew, and
also to show the above mentioned circum-
stances attendant upon the purchase of the
estates at C.; and that the nephew being un-
able to repay the balance of £7700, A. refused
to accept a security from him for it, but in-
558 Cumulative.

stead thereof, had directed his own solicitors
to prepare a codicil, charging £8000 upon the
estates at M., which sum was to be applied
towards the purposes to which he had by will
directed a similar sum formerly in cash at
bank to be applied; in consequence of which
direction the codicil executed by him in 1840
was prepared.

That these facts amounted in equity to a
release by A. of the debt of £7700 due to him
from the nephew, and that the charge of £8000
upon the estates at M. must be considered as
substituted for that debt.

The Court admitted the parol evidence, not
for the purpose of construing the will or
codicil, but in order to ascertain whether or
not the £7700 was a debt due to A. at his
death.

Semble—The dictum of Wigram, V. C. in
Cross v. Sprigg (6 Hare 552), that it a debt be
not released at law it cannot be considered as
relased in equity, is not sustainable-—Hedges
y. Aldworth, 13 I. E. R. 406. (C.)

1. A. having devised all his real estate to
certain persons, and bequeathed “£11,086”
in British stock to his nephews, bequeathed
to his niece F. “whatsoever sum or sums he
had in Irish £33 per cent. consols.” After
some other specific legacies, he stated it to
be his will that five of his female relatives,
whom he named, should receive each £100
to purchase rings. The will then proceeded
thus :—“ To pay this £500, my just debts and
funeral expenses, a sufficiency will be found
in the hands of Messrs. Coutts & Co., my
bankers, and Messrs. Cox & Co., my agents,
with the interest due on my funded property,
with anv balance that might be in my private
agent, V.’s, hands; and whatever sum or sums
should be over, it is my will should be the
property of my dear niece F.” Held, that the
last bequest to F. comprised the general re-
sidue of A.’s personal estate, and was not
limited to the residue of the funds indicated
by him as: sufficient to meet the legacy of
£500, and his debts and funeral expenses.—
Vincent v. Fitzgerald, 21. C. R. 256; 21. Jur.
177. (C.)

2. A marriage settlement of £1269 (the
wife’s fortune), upon trust for the husband
for life, and on his decease for the wife for
life, and on her decease for the children of
the marriage, reciting that the husband was
not then able to settle a jointure upon the
wife, empowered him to acquire the wife’s
fortune absolutely, if, on his becoming entitled
to adequate real estate, he should by deed
charge that estate with a jointure of £120
per annum for her, and with £1200 for the
children of the marriage. He subsequently
became seized in fee of real estate yielding
an annualincome of £500, but never executed
any deed charging it with a jointure or with
portions.

The husband by will, reciting that, “inas-
much as his wife was entitled by marriage
settlement to the sum of £130 sterling per
annum by way of jointure, and being anxious
further to provide for her,” bequeathed “in
addition the sum of £70 per annum; and also

[LEGACIES.]

 

Substitutional.

the interest of the money, the produce of the
furniture of his house, so long as his children
should be educated in and profess the Pro-
testant religion ; said sum of £70 and interest
money to be paid by the trustee of his will, on
the above conditions, and not otherwise.” He
then bequeathed all his property real and
personal to his eldest son, charged with £800
for each of his (testator’s) younger children.
The testator’s wife being a R. Catholic, he
authorised the trustees to take proper steps
for the education of the children in the Pro-
testant religion, and to make provision for
their maintenance and education out of the
property bequeathed to his son. In a codicil
the testator directed that the trustees should
“have power to take out of his property and
pay to his wife the sum of £70 per annum;
and also have charge of the produce of his
furniture and other assets for payment of his
legacy to her, and carry out the intention of
his will, before any other charge whatsoever,
provided she conformed to his wishes and did
not interfere with the trustees in the educa-
tion of the children in the Protestant religion.”

A bond, to the trustees of the settlement,
for £900, mentioned in the settlement as the
security for so much of the £1269, was found
amongst the papers of the testator at his
death. Held, that, neither under the settle-
ment. nor under the will and codicil, notwith-
standing the recital in the will, was the wife
entitled to a jointure of £120 or £130, and
that she was entitled only to the life interest
in the £1269 under the settlement, and to the
annuity of £70, and the interest of the pro-
ceeds of the furniture under the will.

That the legacies to the younger children
were not bequeathed in satisfaction of their
portions under the settlement, and conse-
quently that they were not bound to elect
between the legacies and portions, but were
entitled to both.—Peirce v. Locke, 21. C. R.
205. (C.)

3. When two legacies of different amounts
are given by the same will, to the same person,
the legacies are to be considered cumulative,
unless a contrary intention appears in the will.

When two legacies are bequeathed to the
same person by different testamentary instru-
ments, e. g.. oue by the will, the other by the
codicil; or when they are given by different
codicils, and both are given simpliciter; the
Court, in the absence of intrinsic evidence to
the contrary, considers the legacies as cumu-
lative.

A., by will, after confirming the provision
made for his wife by his marriage settlement,
and reciting his intention to make a further
provision for her by way of annuity, directed
his executor to purchase £2333. 6s. 8d. stock,
and transfer it, upon trust to pay the divi-
dends to his wife, so long as she remained
unmarried; and, on her marriage or death,
that the stock should become part of the re-
sidue of his property. By a codicil, after
reciting his will,and directing that the codicil
should be annexed thereto, and taken as part
thereof, and that it was his wish to increase
the annuity bequeathed by his will to his wife,
Time of

he directed his executor to purchase £3333.
6s. 8d stock, and transfer it to the same trus-
tees, upon trust, to pay the dividends to his
wife, so long as she might remain his widow,
and no longer; and from and after her de-
cease, or if she married again, that the stock
should form and be a portion of the residue of
his property, to be disposed of as directed by
his will. He ratified and confirmed his will
and codicil in every respect. Held, that the
legacies were cumulative, and that the widow
was entitled to both annuities—Brennan v.
Moran, 61. C. R.126 ; 21. Jur. N.S. 146. (R.)

1. J. in 1810 by marriage settlement cove-
nanted with the trustees that all the property
of which he should die seized or possessed
should be charged with £13800 for the issue
of the marriage. There was but one child, E.
On the marriage of E., in 1847, J. conveyed
freehold property to trustees for the benefit of
E. and the children of her marriage; and cove-
nanted to make up the amount of the produce
of that property to £300 per annum. J., in
1852, devised real estates to the separate use of
E. for life, remainder for her children; and
declared that devise to be in satisfaction of the
covenant in the deed of 1847. In 1852, J.
assigned railway shares upon trust for E. for
life, for her separate use, if the survived him ;
remainder for her children. By codicil made
on Jan. 7, 1853, J. bequeathed chattels per-
sonal to E. for her separate use, and bequeath-
ed £1050 bank stock upon trust for G. the
husband of E. for life, remainder to E. for life,
remainder to her children as therein mentioned.
Both the will and codicils disposed of all the
testator’s estate. JZeld, that E. and her hus-
band were entitled to the sum of £1300 secured
by the covenant in the deed 1810, as well as
to the benefits conferred by the settlement of
1847, the will, and codicils and deed of 1852.—
Garner v. Holmes, 71. C. R. 412; 3 I. Jur. N.
S. 229. (C.)—[Revd.: 8 I. C. R. 469; Dr.
Rep. t. Nap. 116; 31. Jur. N. S. 421. (C.A.)]

 

VIII. Payment or Lecacies.

. Time, &c., when Payable.

. How Payable; when raised; from
what Fund.

. What is sufficient Payment ; towhom.

. Respecting the Mode of Enforcing
Payment.

. Order of Payment among Legatees, fc.

on Pe te

 

VIII. 1. Time when Legacies are Payable.

2. V., by will of 1805, gave R., a ptf., an
annuity of £300. By will of 1812, revoking
the former will, V. bequeathed to R. an an-
nuity of £600. The validity of the first will
was admitted. A suit was instituted to estab-
lish the second will, which was impeached.

Semble—That R., though entitled in any

event to an annuity of £300, was not entitled
to an order that the receiver should pay her
that annuity out of the rents.
* It is not the course of the Court to pay,
pending litigation, annuities charged upon
incumbered property.—D’ Alton v. Lord Trim-
leston, 2 Dr. & War. 531. (C.)

[LEGACIES.]

 

Payment. 559

3. V. devised lands upon trust to convey to
A., to hold for his widow’s life; after her
death, to convey to B. and his heirs, subject
to an annuity to C.; the first payment of the
annuity to be made on the first day of May or
Nov., which should happen first after his
decease. Held, that the annuity was payable
in ae during the widow’s life.—Jackson
y. Hamilton, 91. E. R. 430; 3 Jon. & L, 702.
(C.)

4, A. bequeathed to his four daughters,
unmarried, £2000 each on their day of mar-
riage, with the consent of his trustees, with
interest by way of maintenance in the mean-
time ; and desired that, if one of his daughters
should die without being married, the fortune
and legacies of her so being the first to die
should go to and be divided equally among
such of his married sons and daughters as
might have issue at the death of such unmar-
ried daughter. The four unmarried daughters
survived A. One of them died unmarried, and
without issue. Held, that her legacy was
divisible among A.’s son’s and daughters who
were married at the date of the will, survived
her, and had issue living at her death.— Eliott
v. BE. 111. C. R. 482; 61. Jur. N. 8.349. (R.)

5. W., by will, after directing his debts to
be paid, and bequeathing legacies, left all the
residue of his personal estate to his executors,
in trust to pay the interest to his wife A. for
life. Held, that the reversionary interest in
the stock, transferred to the trustees to answer
the jointure, passed by the residuary bequest,
no intention to exclude it appearing by the
will; and that A. was entitled to have the
reversionary interest sold at the end of one
year from W.’s death, and the proceeds in-
vested, and the dividends paid to her for life.
That having been omitted, the Court directed’
an inquiry to ascertain what sum in stock
could have been purchased with the value of
the reversionary interest at that period ; and
that so much of the assets should be set apart,
and the amount of the dividends, which would
have been payable to A., if the investment
had been made, should be paid to her. Held,
that A. was not, in 1859, barred by the Statute
of Limitations or by laches, there being a sub-
sisting fund liable to her demand.—/Napier v.
Staples, 101. C. R. 344. (R.)

6. A gift, or bequest of money, charged by
deed or will upon lands, will not, in general,
though vested, bear interest until it is raisable,
unless something on the face of the deed or
will shows a contrary intention.

If such a gift or bequest be contingent, and
there is not any express gift or bequest of
interest, interest will not accrue or be payable
before the happening of the contingency on
which the principal becomes payable.

V., in 1853, by will, after giving his wife
for life an annuity charged on his real and
freehold estates, bequeathed to his nephew
£2000, and charged it on those estates, with
interest at the rate of £5 per cent. from V.’s
mother’s death. V. expressed his intention
to be that the £2000 should not be raised or
560 WES How Payable.

carry interest during her life; but should be
a vested interest in the nephew on his attain-
ing 21, and not before ; but that, if he attained
age during her life, payment of the principal
should be postponed till her death; if he died
under age, the £2000 not to be raised or pay-
able. Held, that the legacy was contingent
on the event of the nephew attaining age, and
that interest was not payable on the £2000
until the nephew attained age.— Gillman v. G.,
161. C.R. 461. (R.)

 

VII. 2. How Payable; when Raised; from
what Fund.

1. It is perfectly well settled, that when a
testator directs his debts to be paid by a per-
son to whom he afterwards gives part of his
property, whatever is given to that person
will constitute a fund for the payment of the
debts, and will be answerable to the creditor.
Then there is the question, what is to be done
when a particular fund has been appropriated
by the testator, and that proves deficient, and
the personal estate is given away; out of
what is the deficiency to be made good? The
question, whether, in order to exempt the
personal property altogether, it was necessary
that the testator should declare his intention
by express words, was for a long time doubt-
ful; but it was at last settled, in a way which
is very unsatisfactory, that express words were
not necessary, but that the intention might
be expressed by necessary implication. —
Lanphier v. Despard, 4 I. E. R. 336; 2 Dr. &
War. 59; 1 Con. & L. 200. (C.)

2. A. devised and bequeathed to H. all his
real and personal estate for her life, she pay-
ing thereout the legacies after-mentioned, in
three years after his decease. He gave life

* annuities, and declared “ the several legacies
or annuities to be charged on my real estate,
the first payment to be made three years after
my decease ;” and then bequeathed several
pecuniary legacies, and gave all his real and
personal estate, after the death of H., to P.,
for life, remainders over, if he should die
without issue. Held, on demurrer, that the
legacies were charged upon the inheritance.—
Boyd v. Higginson, 5 1. H. R. 97; Fl. & K,
603. (R.)

8. Testator directed his trustees to invest
£4500, “to be raised out of his personal for-
tune.” Of this sum he gave to his daugh-
ter £3000, and the remainder to collateral
relatives. He then gave his wife £1000 out
of his personal property. The whole personal
estate only amounted to £4500, and the wife
received the £1000. Held, that the collateral
relatives were not entitled to have the per-
sonal estate accumulated to make up £4500
above £1000.—Acheson v. Fair, 2 Con. & L.
208; 3 Dr. & War. 512. (C.)

4, A particular fund having been set apart
to answer a pecuniary legacy, which was given
to one for life, remainder to his children, and
an increase in the value of that fund having
taken place, which made its value greater

[LEG ACIES.]

 

What Fund.

than the amount of the legacy—Held, that
the legatees were entitled to the benefit of
the increase.—Kimberly v. Tew, 5 I. E. R. 389;
4 Dr. & War. 139; 2 Con. & L. 366. (C.)

5. By his answer, a defendant insisted that
a former tenant in tail had paid off legacies,
which he alleged were charges upon the real
estate, out of a specified fund; and that the
sums so paid off were still charges upon the
real estate. By the interlocutory decree, it
was referred to the Master to take an account
of the sums advanced on foot of the specified
fund, in exoneration of the lands; and what-
ever should appear to be so advanced was
thereby declared to be a charge on the lands.
Held, that this amounted to a declaration
that the legacies were a charge on the lands.—
Kelly v. Lennon, 1 Jon. & L, 305; 71. E.R.
98. (C.)

6. A testator devised real estates to his
wife and his three daughters, A., B., and C., in
equal shares; and by a codicil bequeathed
£1000 to his daughter A., charged on all his
real and personal estate. A. married, and her
husband joined her in conveying her undivided
fourth of the real estate to trustees, free from
incumbrances, &c., by a postnuptial settlement,
which was held not binding on the wife, no
fine having been levied by her. Held, that the
fourth part of the legacy was not merged in
the estate devised to A. by the will; but that
the husband, by the settlement, released A.’s
fourth of the real estate from the legacy.
Walpole v. M‘Clintock, 7 I. E. R. 353. (C.)

7. V. bequeathed all his moneys in govern-
ment stock, and all other moneys, upon trust
to sell so much of the stock as would suffice to
pay certain legacies; and to lay out the resi-
due of the stock, and all other moneys and
personal estate whereof V. should die possessed,
and which should remain after paying these
legacies, debts, funeral and testamentary ex-
penses, in buying lands. Held, that the
legacies were payable out of the general per-
sonal estate, and that the residue only, that
remained after paying them, was to be in-
vested in land.—Jackson v. Hamilton, 9 I. E.
R. 480; 3 Jon. & L. 702. (C.)

8. By a will, reciting that the testatrix was
entitled to £2255 stock, she bequeathed the
sum so standing in her name to a trustee, to
divide in the following shares and proportions.
She then gave specific sums to legatees, and
directed that these sums, described as amount-
ing to £1769, should be paid out of the stock,
and that the balance, amounting to £495, or
thereabout, or whatever it might amount to,
should be paid to X. The amount of the stock
was only £1750. Held, that the gift to X.
wholly failed, and that the otherlegatees could
not be called on to abate rateably with him.—
Williams v. Armstrong, 12 I. E. R. 356. (C.)

9. Devise of B., subject to the debts of
testator, upon trust, out of the “rents” and
“issues,” to pay to his three nieces £1000 at
How payable.

t

twenty-one or marriage, whichever should first
happen, with interest from the period of his
death; and if they should all die before twenty-
one or marriage, he gave that sum to his
nephew. The testator next bequeathed annui-
ties, which he directed to be paid out of the
“rents, issues, and profits” of B., and gave the
annuitants powers of distress and entry. He
next devised (“after payment of the legacies
and bequests aforesaid”) B., and all other his
real and personal estate, subject to payment of
his debts, legacies, &c., to the same trustees,
upon trust to pay £40 annually for the main-
tenance of his nephew during minority; and
directed the investment during that time of
the surplus “rents, issues, proceeds, and pro-
fits,’ such surplus to be paid over to him on
his attaining twenty-one; from which time the
testator directed the trustees to permit his
nephew during his life to receive the “ rents,
issues, and profits” of B., and the other real
and personal estate; with power to jointure,
and with remainder over in strict settlement
to the nephew’s issue.

At the date of the will the nephew was nine-
teen years of age, and the nieces were respec-
tively sixteen, twelve, and ten years of age.
The testator left personalty to the value of
£800. Held, that the £1000 bequeathed to the
nieces might be raised by sale of B., and was
not charged upon the annual rents only.—
Spring v. Stephenson, 1 I. C. R. 182; 31. Jur.
97. (C.)

1. When a mixed and general fund of real
and personal estate, in the nature of a residu-
ary fund, is created by a testator for payment
of his debts and legacies, and for the general
purposes of his will, the costs of a suit, conver-
sant about the disposition and administration
of that general fund, will be properly payable
out of the whole of it, and must be borne
rateably, by the real and personal estate con-
stituting that fund. And this is so, although
by lapse, or by the operation of law, the whole
or part of that fund becomes undisposed of,
and returns to the heir-at-law or next-of-kin.

But where a mixed fund is dedicated by the
testator to specific purposes, and distinguished
by him from his general personal estate, that
part of the mixed fund, which consists of per-
sonal estate only, will be resorted to for pay-
ment of costs, if the general personal estate be
insufficient to defray them.

When a mixed fund is dedicated to specific
purposes, and directed by the testator, on the
occurrence of a certain event, to sink into and
become part of his general personal estate,
and that event does not happen, if the general
personal estate proves inadequate to discharge
the costs, their payment will be decreed out
of that portion of the mixed fund which con-
sists of personalty only.— Cane v.,Fitzgerald, 2
I. C. R. 216. (C.)

2. V. devised lands in trust for R. for life,
remainder to his first and other sons suc-
cessively in tail male, remainder over ; and
directed that R. “shall charge and incumber”
those lands “ for the younger children of him
the said R., or of such person as shall be seized

[LEG ACIES.]

 

From what Fund. 561

of the same under the limitations before men-
tioned, with a sum not exceeding £2000.” V.
died in 1794. R. in 1825, his creditors then
being in receipt of the rents and profits of the
lands, executed a deed charging the lands
with £2000 for his daughters M. and C., share
and share alike, wtth legal interest from the
date of the deed until the time of payment. R.
died in 1848 without any issue except M. and
C. Held, that the sum of £2000 was a valid
charge upon the lands in favour of M. and C

That interest was payable upon that sum
from the time of the death of R. only, as he
must be presumed to have kept down the in-
terest payable during his life.-—Hinds v. H.,
21.C. R227; 21. Jur. 105. (C.)

8. Testator bequeathed as follows:—‘“I leave
to A. all that and those the lands, &c. I also
leave A. all my furniture stock. ...I also
leave A. all and every sum of money left me
by ..., also the lands of . . . . I also leave
him all moneys and debts of every kind due'to
me at my decease, to be subject to all my
debts, and the several bequests and legacies
hereinafter mentioned—that is tosay: I leave
and bequeath to my sons, F. and T., the several
sums of £100 each;” and then left several
other pecuniary legacies, without stating fur-
ther any fund out of which they were to be
paid. Held, that the words “ to be subject to”
extended to all the preceding clauses, and that
the pecuniary legacies were charged on all
the real and personal estate —Millett v. M., 6 I.
Jur. 149. (R.)

4, V. devised her estates of M. and C. toA.,
upon trust to sell; out of the produce to pay
a legacy, and pay the residue to B. She spe-
cifically devised other real estates, and “ ap-
pointed C. her residuary legatee and devisee
The will contained this clause: ‘“ And in case
such residue should prove insufficient for the
purpose aforesaid, then and in such case it is
ordered and directed that the said deficiency
should be paid out of the said lands of M. and
Cc.” V. specifically devised other lands, with
legacies charged thereon, some exclusively,
others generally. By a codicil V. bequeathed
to D. a legacy of £2000, charged as well on
her real as personal estate. Held, that the
real estate specifically devised was not subject
to the latter; and that the sale moneys of the
M. and C. estates were only bound to make
good any deficiency of the residue to answer
the debts and legacies bequeathed by the will
itself, but were not charged with the legacy
of £2000 created by the codicil—Duwyer y.
Bessonett, 71. Jur. 162. (M.O.)

5. V. devised lands, on trust for B. (a
minor), and his sons, in strict settlement,
giving B. a power of charging the lands with
£5000 for younger children, “to be raised
by sale or mortgage of a competent part of
said lands, or out of the rents and profits.”
V. bequeathed legacies, amounting in all to
£12,000, to his grand-daughters; and directed
that his executors “should place those lega-
cies in some of the most eligible public
funds,” and accumulate such portion of the

a
562 How payable.

annual interest of them as was not required
for the maintenance, &c., of the legatees. He
then, after giving some small legacies, de-
clared that if his assets, not thereby speci-
fically disposed of, should prove insufficient
for the payment of his debts and legacies,
“it was his will that such deficiency should
be made good and supplied by his trustees,
out of the annual rents and profits arising
out of his estates, which he thereby desired
that his trustees might receive and apply
until such deficiency should be made good
thereby; allowing, however, to his grandson, B.,
so much as the trustees should deem expe-
dient and fitting for his education and main-
tenance ;” but, if it should happen that there
should be a surplus of his personal estate,
after payment of his debts and -legacies,
&c., he bequeathed such surplus among his
several grandchildren above-mentioned. The
personal estate proved insufficient for the
purposes contemplated. On V.’s death, B.
and the other grandchildren were made
wards of Court.. One of the executors acted
as guardian. In the accounts and dealings
in the matter of the minors, the legacies were
treated as charged on the corpus of the estate,
and B. paid interest on them until he died,
leaving a son, who refused to pay those
charges. Held, that only so much of the le-
gacies as the personalty was inadequate to
pay was at all charged on the real estate;
that the charge was only on so much of the
rents and profits of the real estate in the
years immediately following V.’s death, as
would have made up the deficiency; and that
B.’s son was not bound by the dealings in the
minor matter.

It is desirable that questions of construc-
tion should be settled in the first instance,
before the Master proceeds to take the ac-
counts of an estate.—Scott v. Clements,\8 I. C.
R.1; Dr. Rep. temp. Napier, 91. (C.)

1. If there are general gifts of legacies, and
then of the rest and residue, real and per-
sonal, blending the whole in one mass (though
accompanied by a power to the legatee of
the residue “to dispose of the same in any
manner he may think proper”), the legacies
are a charge on the realty.

A testator, V., bequeathed a legacy which,
if not received, was to form “part of the resi-
due of his property.” Then followed a legacy
to B., with a direction that, if B. died before
the time for payment, the legacy was to be
considered as “part of the residue of V.’s
property, and go and merge in the same.”
After some small legacies the will concluded
thus :—“ All the rest, residue, and remainder
of any property I may die possessed of, whe-
ther estates, freeholds, &c., &c., bonds, bills,
&c., annuities, &c., I devise and bequeath to
my son, in the fullest manner I can, with
liberty to him to dispose of the same in any
manner he may think proper.” The son,
though named an executor, did not act as
such. The other executor proved the will.
The son mortgaged the real estates. Held,
that the legacy to B. was a charge on the real
estates; and, on a sale of them in the I. E.

[LEGACIES.]

 

From what Fund.

Court, took precedence over the mortgages,
notwithstanding the general power given to the
devisee to dispose of the estates in any man-
ner he thought proper.—Greville v. Browne, 7
H. Lds. Cas. 689; 51. Jur. N.8.1. (H.L.)

2. V. bequeathed to his four daughters a
legacy of £500 each, to be paid to them re-
spectively on the days of their respective mar-
riages, with the consent of his wife and exe-
cutors ; with power to each of them to dispose
thereof by will or deed, as she might think
proper; such four legacies to be charged on
his personal estate, and the deficiency to be
raised out of his real estate, which he em-
powered his trustees to do by demise, sale, or
mortgage; and directed his executors to pay
not less than £30, or more than £40, a-year
for his daughters’ maintenance, until their
respective marriages, out of his personal es-
tate; and, on a deficiency, out of his real
estate. By a codicil, he devised four addi-
tional legacies of £500 to be paid to each of
them at the time and in the manner in his
will mentioned. One of the daughters died
unmarried, having bequeathed her legacies to
the survivors. Held, that the legacies of the
daughter who died could not be raised out of
V.’s real estate.

That the legacies to the surviving daugh-
ters were not raiseable out of the real estate,
before their marriage with consent.— Bolton v.
B., 12 1. C. R. 233. (R.)

3. A., after reciting that £50,000 was
charged on estates, bore interest at £4 per
cent., and was payable, subject to a power
of appointment, to the male issue of his
marriage, and, in certain events, reverted
to him, bequeathed it, upon trust to pay out of
the interest an annuity to his wife, and the
residue of the interest to his grand-daughter
for life; and directed that, with the exception
of the sum so charged, all his debts, legacies,
and legacy duties, &c., should be paid and
payable out of such portions of his estate as
were not specifically bequeathed ; and direc-
ted that all his legacies should be paid within
twelve months after his decease, without any
deduction for legacy or stamp duty; and that
all his legacies should bear interest at the
rate of £5 per cent. from the time of his
death ; and further directed that his executors
should pay the legacy duties payable on the
legacies, and that all legacies thereby be-
queathed be payable without any deduction
whatever. Held, that the £50,000 was pay-
able free from legacy duty.—Ferguson v. Ogil-
by, 121. C. R. 411. (R.)

4. D. bequeathed lands in C. and L., to the
use that M. should receive an annuity of £50
per annum out of C., and a like annuity out
of L.; and devised C. to H. in strict settle-
ment. He devised L. subject to the annuity
of £50, and “to the charge of £1000 here-
after mentioned,” to H. in strict settlement.
He then gave to X., W., and R. the sum
of £1000, and charged it upon L., and be-
queathed the residue of his real and personal
estate to X., W., and R. Held, that the
How payable.

£1000 was charged on L. in exoneration of
the personalty.—Daunt v. D., 18 I. C. R. 175;
7.1. Jur. N. 8. 315. (C.)

1. A., after particularising his real and per-
sonal estate, bequeathed the residue thereof
to his children living at the time of his death,
share and share alike, the share of his daugh-
ters to be paid to them on their respective
days of marriage, provided a settlement, with
the approbation of his executors, was execu-
ted on the marriage of each, and if such
settlement was not made, each of his daugh-
ters should be entitled to the interest of her
share for life only, with a gift over. A. de-
clared that if any of his daughters died un-
married, “she shall have power and liberty
to dispose of, by will or otherwise, the sum of
£500 of her share; and the remainder of her
share is to be divided, share and share alike,
amongst all my other children then living,
except those who may have married without
the settlement as aforesaid.”

C., one of A.’s daughters, died intestate
and unmarried. Held, that C. took an abso-
lute interest in her share, to the extent of
£500, which was to be considered as w gross
sum of money, taken out of her share, and
not as an aliquot part of her share; and that
it was to be considered as personalty in C.,
and not as partly real and partly personal.—
In re M‘Donnell’s Estate, 13 I. C. R. 268.
(.E.C.)

2. A., seized of freeholds, and possessed of
chattels real, by marriage settlement limited
them, subject to his own life estate, to the
issue of the marriage, to be distributed as he
should direct or appoint.

A., by will, reciting his settlement, directed
his chattels to be sold, and the produce ap-
plied in payment of funeral and testamentary
expenses and debts, and the charges on his
real estate, and devised the residue to his
then unmarried daughters, as tenants in com-
mon. He gave provisions, in satisfaction of
their claims under the settlement, to two of
his sons, and devised a portion of the settled
lands, and all-others of which he should die
seized or have a power over, to his unmarried
daughters, in equal shares.

By deed of 1st August 1860, made on the
marriage of §., one of the daughters of A.,
unmarried at the date of the will, he charged
the lands of D., part of the settled estate,
with £600 for S.; and, by a codicil of the same
date, he revoked the gifts to her in his will.
Held,*that A., by the words in his will, “his
real estate,” did’not mean to include the
lands comprised in the settlement, and that
the £600 was not charged upon his personal
estate.—Lllis v. E., 18 1. C. R. 484. (C.)

8. A. bequeathed pecuniary legacies to
each of his children, some of whom were
minors; and bequeathed the residue of his
property, after payment of all his just debts,
funeral, and testamentary expenses, and the
several legacies bequeathed by his will, to be
equally divided between all his said daughters,
and directed that the “interest of the lega-

[LEG ACIES.]

 

From what Fund. 563
cies” thereby given to such of his children as
should not be of age at the time of his decease
should be paid to his wife, to be applied by
her for and towards their maintenance and
education. Held, that the interest of the
respective’ shares of the residue, as well as
that of the pecuniary legacies, was applicable
to the maintenance of the minor children.—
Guinness v. G., 14 1. C. R. 218; 81. Jur. N.S.
24. (R.)

VIIL. 3. What is a sufficient Payment ; to whom.

4. An executor contracted with legatees for
the purchase of their legacies, which were
accordingly assigned to a trustee for him, in
consideration of sums of money less in amount
than the legacies. It was admitted that the
transaction could not be sustained for the
benefit of the executor. Held, that the deed
of assignment did not operate as a release of
the estate, and could not be upheld as against
the legatees who executed it for the benefit
of their co-legatees—Barion v. Hassard, 3
Dr. & War. 461. (C.)

5. A., being entitled to a charge on the
estate of S. and to government stock, be-
queathed, amongst other legacies, £2500 to
M.; directed that the charge should be called
in to pay the legacies; and that the annual
interest of the charge in the meantime, and
the stock, should be appropriated in payment
of two legacies of £500, to be paid first out of
the stock, and the deficiency, if any, out of
the interest on the charge ; and if these should
prove insufficient, out of the principal. The
executor, having proved the charge in a suit
against the estate of S., received and misap-
plied a great portion of it, and then executed
an agreement that £2500 of the sum reported
on the charge should be paid to M., and that
she should be considered the actual owner.
That sum was afterwards reported payable to
her. The assets being deficient in conse-
quence of the devastavit—Held, that the trans-
actions between the executor and M. were
not an appropriation tantamount to payment,
so as to give her priority over the other lega-
tees.—Molloy v. French, 11 I. E. R. 376. (C.)
[See Molloy'v. French, 13 I. E. R. 261. (C.)]

 

6. A bequest to the representatives of the
late mercantile house of A. and K., or to such
person or persons as should be entitled at
testator’s decease to their personal property,
in satisfaction of a debt due by the testator’s
father—Held, claimable by the legal repre-
sentative of the surviving partner, as repre-
senting the firm of A. and K., and not. by the
persons beneficially entitled to the properties
of A. and K.—Kerrison v. Reddington, 11 I. E.
R. 451. (C.)

7. A legatee lies by for some years after the
legacy is payable, and continues to receive
interest on her legacy from the executor, who
has received abundant assets to meet all de-
mands. Accounts are taken of the testator’s
estate in a minor matter, the minor being
entitled to the residuary fund; credits are
given; a balance struck; the exact amount
564 Sufficient Payment.

of the residue ascertained ; and money paid
back to the executor to discharge the out-
standing legacies. The executor wastes this
money. A bill having been filed by the un-
paid legatee, to have the amount of her legacy
paid out of the residuary fund ; and the Master
having reported that the fund to the credit
of the minor was chargeable with the payment
of this legacy—Held, on exceptions to the
report, that there was a clear appropriation
of the residue by the Court; that the moment
the residue was ascertained and lodged to the
credit of the minor, it was tantamount toa
complete payment, such as would have taken
place had he been of full age ; and the plaintiff
and other unpaid legatees had no right to
look to this fund for the payment of their
legacies.—Rainsforth v. Ryan, 21. Jur. 279. (C.)

1. When an infant is entitled to a vested
legacy, payment thereof during his minority by
the executor to the testamentary guardian is
valid, as the statute for taking away the Court
of Wards and Liveries, 14 & 15 Car. 2, c.19
Cr.); 12 Car. 2, c. 24 (Eng.); enables the
guardian to give a good acquittance.

And such a payment is valid, although the
period directed by the testator for payment of
the vested legacy to the infant is the attain-
ment of age or marriage.

When a testator bequeathed to his eight
younger children all his property, share and
share alike, on their respectively attaining
age, or marrying with the consent of their
guardian, and directed that the interest aris-
ing from the payment of their respective
shares should be applied in the meantime to
their maintenance and education, and ap-
pointed a guardian and an executor—Held,
that a payment, during the minority of the
children, of a part of the corpus of the perso-
nal estate of the testator, by the executor to
the guardian, was a valid payment.— Jf Creight
vy. M‘C., 131. E. R. 314. (C.)

2. After the testator’s death in 1803, his
widow and executrix wrote a letter to E., in-
closing a copy of the will, and in which she
stated that the stock in which the money had
been invested should ever be held sacred by
her for E.’s children, and if it did not in-
crease, it should never diminish. In 1816, an
injunction was obtained by the children of E.,
then minors, to restrain the sale of the stock
by the widow, under a misapprehension that
she was about to sell it. E.’s children came
of age at different times between 1820 and
1838, and the stock remained untouched until
1853, when the widow died. Held, that the
letter amounted to an appropriation of the
stock to the legacy by the executrix, which,
under the circumstances, must be presumed
to have been assented to by the children of
E., as they came of age.—Thomas v. T., 3 I.
C. R. 399. (R.)

3, V. bequeathed £1500 each to his daugh-
ters; and alsoan annuity of £40 each, charged
on house property until they should have been
provided for by the payment of the legacy;
on payment of which the annuities thereby

[LEGACIES.]

 

To whom.

given, as temporary provision for his daugh-
ters, should cease. He bequeathed the house
property to his sons A, and B., whom he ap-
pointed executors; and directed that they
should, within three years after his decease,
invest £3000 in stock, for the purpose of dis-
charging the legacies to his daughters. A.
and B. were traders, and did not invest the
£3000, in pursuance of the direction in the
will, but paid interest at £6 per cent. on the
legacies, and also the annuities to the daugh-
ters. B. died; A. became bankrupt. The
daughters proved for the legacies, under a
ruling of the Commissioner, that they should
elect to do sowithin a given time; andthe house
property was sold in the bankruptcy, subject
to the annuities, which were referred to in the
particulars of sale. The conveyance, which
was prepared by the purchaser, a solicitor,
was subject to the annuities, in case and so
long as the same, or either of them, should be
or continue charged and payable out of the
property, under the provisions of the will.
Several gales of the annuity were paid after
the conveyance was executed, by the assignee
in the bankruptcy. Held, that though the
property was sold absolutely, subject to the
annuities, and the conveyance was not in ac-
cordance with the contract, the Court, having
no jurisdiction in bankruptcy, must construe
it according to its legal effect; and the pur-
chaser took the property subject to the an-
nuities, if legally subsisting.

That the daughters, by proving in the
bankruptcy, had not waived their right to the
annuities; the election which they were put to
by the B. Court being, whether they would go
against the property sold as part of the assets
on a devastavit, or permit it to be sold?

That the mere fact of the daughters having
allowed the money to remain in the executors’
hands, at interest, did not amount to a pay-
ment of the legacies in point of law, and a
loan of it to the executors ; but—

Secus, if it remained in their hands in respect
of a contract for a loan; and the Court direct-
ed a distress to be made for the annuities,
to try the question whether such a contract
existed.— Gatchell v. Geoghegan, 61. C. R. 312.
(R.)

4. V. being possessed of a term of years,
with a ¢. g.covenant for renewal, devised all
his landed property, houses and tenements,
goods and chattels of every description, ready
money and outstanding debts, to his sons, A.,
B., and C., to be equally divided between
them ; and appointed his wife executri#. V.
died in 1833. On his death, his widow, who
proved the will, and B., went into possession
of the lands until her death, in 1847, when B.
took out administration de bonis non, and con-
tinued in possession, applying all the rents to
his own use. In 1850, a perpetuity grant of
the lands, under the Church Temporalities
Act, reciting V.’s will, and that B.was admi-
nistrator de bonis non, was made to B. expressly
in that character. In an administration suit—
Held, that the perpetuity grant rebutted the
presumption of an assent by the executor to
the bequests, arising from lapse of time.
Order of

That the lands should be sold, and divided
into three shares, for the benefit of the sons of
V., or their representatives.

That the claim of A.’s representative should,
by reason of the surplus rents received by B.,
be paid out of B.’s share in priority to judg-
ments against B., registered as mortgages.—
M ‘Connell v. Crothers, 9 I. C. R. 217. (R.)

 

VIII. 4. Respecting the mode of Enforcing
. Payment.

 

VUI. 5. Order of Payment amongst Legatees, Sc.

1. The conuzor, A., of a judgment, by will,
in 1802, bequeathes leaseholds specifically, and
appoints the conuzee a trustee under his
will. The executor assents to the bequest, in
1808, having at the time assets for the payment
of all A.’s debts. A suit is instituted in 1812
for a sale of part of A.’s property by a specific
incumbrancer. Under the decree in that
cause, the judgment is proved, and declared a
charge on the premises. No sale takes place.
After the death of the conuzee in 1822, his
widow, who was entitled to the judgment under
a settlement which gave the conuzee a life in-
terest in it, files her bill to raise the amount,
which she amends in 1835, making parties the
specific legatee, his wife, and children, upon
whom the chattel had been settled by a post-
nuptial settlement. Held, that she was en-
titled to compel the owner of the chattel to
contribute to the payment of the judgment.

A creditor, Who, by lying by, permits the
executor, having at that time assets for pay-
ment of debts, to pay a legacy, does not
thereby lose his right to compel that legatee
to contribute to the payment of his debt, if
the executor subsequently waste the assets ;
but the assets of the defaulting executor
must be first resorted to, and the insolvency
of the executor not having been proved—
Held, that the legatee was entitled to an in-
quiry on the point, even after a decree to
account and a report under it.—Mannix v.
Drinan, 31. E.R. 108. (C.)

2. There is no priority in favour of annui-
tants over legatees in a will, whether of real or
personal estate.—Creed v. C., 1 Dr. & War.
416; 41. E.R. 525. (C.)—[Reversed: 11 Cl.
& Fin. 491. (H.L.)]

8. A legacy to be paid as soon as possible
out of the sale of testator’s personal property,
will have priority on account of this direction.

A., by will, gave the interest of £5000 to his
wife for life. There was no specific bequest
of the £5000 after the wife’s death, but there
were general legacies over which the legacy to
the wife had priority. There was no fund
realised to produce the interest until after the
wife’s death. Held, that her personal repre-
sentative was entitled to all the arrears due of
the interest on the £5000 in priority to all
other legatees, although, if the principal sum
of £5000 had been bequeathed in remain-
der, there should have been an abatement, to
be borne proportionably by the tenant for life
and remainderman. ‘

[LEGACIES.]}

 

Payment. 565

When a legacy is given in addition to any
other property which the legatee takes, it in
general partakes of the nature of the original
gift to which it is annexed.—Pepper v. Bloom-
field, 2 Con. & L. 198; 3 Dr. & War. 499. (C.)

4. Freehold estates devised, and chattels
specifically bequeathed, shall contribute rate-
ably to the payment of debts.

Long v. Short (1 P. Wms. 403), approved of.

Cornewall v. Cornewall (12 Sim. 298), com-
mented on.— Young v. Hassard, 7 I.E. R. 309;
1 Jon. & L. 466. (C.)

5. A. left his property among F., J., S., and
P., directing them to pay his debts in spe-
cified proportions. In a creditors’ suit, it ap-
peared that J. had overpaid his proportion ;
and that balances, differing in amount, were
due of the proportions payable by F., S., and
P. A decree was pronounced for sale of
their shares of the property in default of pay-
ment. S. paid the balance due by him, but
F.and P. did not pay. The suit continued, and
ultimately the shares of F. and P. were sold.
P.’s share produced more than sufficient to
pay his proportion of the sum due, but F.’s
proved deficient, not having been originally
adequate to the proportion of the burthen
imposed by A. Held, that J.,S., and P. should
contribute proportionally to the amount by
which F.’s share was deficient, and also to the
costs of the suit properly incurred.—Newby
y. Drew, 71. E. R. 349; 1 Jon. & L. 445. (C.)

6. A., seized of P. and other lands, directed
all his just debts, funeral expenses, and lega-
cies to be paid by his executors, and devised
all his real and freehold estates (save a part
devised to his wife), upon trust that his wife
and her assigns should, after his decease, re-
ceive a rentcharge, with power of distress,
and that three of his daughters should receive
rentcharges, with like remedy by distress and
entry as provided with respect to the rent-
charge to his wife. A. then bequeathed
pecuniary legacies to his children, and left
all the residue and remainder of his real,
freehold, and personal estates, subject to his
debts and the aforesaid legacies and annui-
ties, to the trustees. Held, that the rent-
charges to the daughters were specifically
charged on the same lands as the rentcharge
to the wife, and had priority over the le-
gacies, which were charged by the residuary
clause only.— Weir v. Chamley, 1 I. C. R. 295.
(R.)—[See s. c., 21. C. R. 566. (R.)]

 

IX. Security For ContTiIncenT LEGACIES.

 

X. Speciric Lucacizs.

7. Testatrix bequeathed to her “ uncle,
P., the interest on £200, being part of a larger
sum of government stock now remaining in
my name in the Bank of Ireland;” and di-
rected that, after his decease, “the said prin-
cipal sum of £200” should be equally divided
among the children of P.
566 [SPECIFIC

Neither at her decease, nor at the date of
her will, had the testatrix any government
stock standing in her own name in the Bank
of Ireland; but she was entitled to £1000
government stock standing in her mother’s
name, whose executrix and sole residuary
legatee the testatrix was. Held, that the
legacy was specific; and that £200 of the
stock standing in her mother’s name passed
to the legatee.—Power v. Lenehan, 2 Jon. 728.
(E.E.)

1. The receiver in a minor matter paid rent
due up to a certain period in respect of lands
held from year to year, which had been be-
queathed tothe minor. The bequest had not
been assented to by the executor. Held, that
the minor was liable to the subsequent rent
only to the extent of the profits received out
of the lands, notwithstanding the payment of
the former rent by the receiver.—Jn re Fair a
minor, 18 1. E. R. 278. (R.)

2. C., by her petition and charge, claimed
a legacy in priority over the other legacies,
by reason of a contract with the testatrix that
the legacy should be bequeathed to her in
consideration of her services as companion.

The alleged contract was denied by the
discharge. No evidence was given to prove
it. Held, that having claimed as legatee, by
her petition and charge, she could not, on an
appeal from the Master’s decree, abandon the
legacy, and claim as creditor; that she could
not claim as a creditor, having given no evi-
dence of her claim as such.

K. devised real estate to A., subject to
specified legacies, which she charged thereon,
and exonerated her personal estate from
them ; secondly, she devised other real estate
to B., subject to other legacies, which she
also charged thereon, and from which her
personal estate was also exonerated ; thirdly,
she devised other estates to C., subject to
other legacies; fourthly, she devised other
real estate to D., in trust, to sell and pay two
legacies; the residue of the purchase money
to E.: fifthly, she devised other lands to F.,
subject to a legacy, and bequeathed stock to
G., and her household goods, plate, cash, and
other personal property to H. She bequeathed
the residue of her property, real, freehold,
and personal, after payment of her just debts,
funeral expenses, &c., and legacies aforesaid,
to A., whom she appointed her sole residuary
legatee; and if such residue should prove in-
sufficient for those purposes, she ordered that
such deficiency should be paid out of the
produce of the sale of the lands devised to
D.; and appointed A. and F. her executors.
K. had no other lands but those specifically
devised. Afterwards, by acodicil duly attested
and made in England, her will being then in
Dublin, she bequeathed the legacy to C.,
charged it on her real and personal estate;
and ratified and confirmed her will in all
other respects. Held, that C.’s legacy was
not charged on the lands specifically devised
to A., B., C., and F.

That if there had been any lands not speci-
fically devised, which passed under the resi-

 

LEGACIES.]

duary devise, they would have’been charged
with C.’s legacy.

That the residue of the purchase money of
the lands devised to D., in trust for E., after
the payment of the two legacies, was subject
to C.’s legacy, as E. was to be considered a
residuary and not a specific devisee.—Dyer v.
Bessonett, 41. 0. R. 382. (R.)

3. B., the conuzor of a judgment, bequeathed
all his personal estate specifically ; devised his
lands to A. for life, remainder over ; appointed
A. his executor; and charged the lands with
payment of his debts. After B.’s death, the
judgment was assigned to a trustee for A., the
assignment stating that it had been paid off
out of the proper money of A. The trustee
having filed a petition to raise the amount of
the judgment out of the lands—Held, that the
lands and the chattels specifically bequeathed
were liable to contribute rateably to the pay-
ment of the judgment.

Queere—W hether the judgment, having been
paid off by A., was a subsisting security at
Law, which could be assigned for his benefit?

Held, that the right to raise the judgment
out of the lands depended on the legal right,
and the Court directed an action at Law to
be brought to try it—Mannix v. Coates, 5 I.
C. R. 142. (R.)

4, A., after several bequests, directed the
residue of his property to be invested; and
bequeathed thereout to M. an annuity during
life, with liberty to will it, or the principal
thereof, to any or all of his children, in such |
proportions as she might think fit ; in default
of appointment, to his children, share and share
alike ; and that the surplus, if any, of his pro-
perty, after satisfying the bequests, should
be added to each bequest proportionately to
its amount. M., by will, reciting the power,
gave S. so much of the stock as would, at the
price on the day of her decease, produce £700 ;
to E., in like manner; £700 and gave all the
rest, &c., of said government stock upon trust
to pay the interest thereof to her daughter, L.,
for her separate use; remainder as I. should
appoint. S. died in M.’s life, leaving issue.
Held, that the legacy to S. lapsed, and did not
fall into the residue bequeathed to I. but
passed, as undisposed of, under A.’s will: the
gift of the residue being a specific bequest.—
din re Browne, 21. Jur. N. 8. 315. (C.)

5. A. bequeathed all her property, real and
personal, to her son; and in the event of his
receiving £450, or thereabout, to which she
considered herself entitled, requested that he
would add thereto £50 to make up £400,
which she left to her grand-daughter. A., in
her lifetime, received’ the £450. Held, that
the legacy as to the £450 was not demonstra-
tive or specific, but conditional on the son
receiving the £450, and that the grand-daugh-
ter was not entitled to be paid that sum out
of A.’s general assets.

That £400 should be read £500 by construc-
tion.

Though the Court may inspect the original
will of personal estate, with «a view to its
[SPECIFIC

construction, it has no jurisdiction to decide
that the probate is erroneous. — Taylor vy.
Creagh, 8 J. C. R. 281. (R.)

1. The proviso at the end of the 17 & 18
Vic., c. 113, that it shall not affect the rights
of any person claiming under any deed or
document made before the 1st January 1855,
does not save a right to the heir to be exone-
rated from a mortgage debt, out of the perso-
nal estate bequeathed to a legatee by a will
made before that date. In 1834 A. devised
to B. all his right, title, and interest to real
estate; and also devised and bequeathed to
B. all his personal property, together with all
other real, freehold, and chattel property, of
every nature and kind whatsoever, of which
he might be seized or possessed at his death,
and appointed C. his executor. After making
his will, A. granted mortgages, for the purpose
of securing which he executed a disentailing
deed which was held to be a revocation of the
will as to the real estate. A died in 1856.

Quere—Whether the bequest of the perso-
nal estate was specific, so as to exonerate it
from the mortgage debts ?

Held, that the 17 & 18 Vic. c. 113, applied, and
that the heir was not entitled, as against the
legatee of the personal estate, to be exonera-
ted from the mortgage.— Power v. P., 81. C. R.
340. (R.)

2. V., seized in fee of several denominations
of lands, named A., B., C., D., E:, F., and G.,
in Ireland, devised all his estates in land in
Ireland, upon the trusts declared. He then
charged his lands with the payment of annui-
ties and sums of money; and declared that,
as to the rest, residue, and remainder of all
other his estates in land, thereinbefore devised
to his trustees, they should hold them to the
use of H., for life; and after the death of
H., if he should leave two or more sons, they
were to hold A. to the use of the second son
of H., in tail male; and if H. should leave
but one son, to the use of that only son in tail
male, “with all my other estates in land :”
and if H. had three or more sons, the trus-
tees were to hold B. and C. to the use of the
third son of H.; D. to the fourth son of
H., in tail male; A. to the fifth son of H., in
tail male; and the lands of F. to the first son of
of H., in tail male. Then came the follow-
ing residuary clause :—“ And all the rest of my
lands and estates in Ireland, hereby devised
to my trustees, and of which I have not de-
clared any trust or uses after the death of
H., I devise them to the first and every
other son of H. lawfully begotten, and the
heirs male of the body of such son or sons in
tail male successively ; and for default of such
issue male in H., to the use of my nieces,
J. F., BR. F., and B. F., and the survivor of
them, for the term of their natural lives, and
after their decease, to the first and other sons
in tail male; and for default of such issue,
male or female, then to the use of my own
right heirs for ever.” V. then empowered
H., as soon as he became seized of an estate
of freehold, to charge # jointure for his
wife on part of the lands; and then came a

 

LEGACIES.] 567

pomrndy
EY coat

second residuary clause, in these words : * And
I give, devise, and bequeath all the ,rest, resi-
due, and remainder of all my real, freehold,
and personal estate and fortune not herein-
before particularly disposed of, with all my
leasehold interest, unto H. aforesaid, and his
heirs male lawfully begotten.” ;Held, that
under the first residuary clause, V.’sijthree
nieces, J. F., R. F., and B. F., were, upon the
death of H. without issue, entitled to a life
estate in the undisposed of remainders in the
lands specifically devised, after the death of
H., as well asjin the denominations F. and
G., which had not been specifically mentioned.
Taaffe v. Ferrall, 10 I. C. R. 183, (C.A.)

3. When a will contains a specific devise or
a specific legacy, the presumption is that the
testator’s intention was that the devisee or
legatee should have it as it is given, without
derogation, and in its integrity ; and a general
charge, subsequently introduced into the will,
is not, per se, sufficient to take away the specific
devise or bequest, though the terms of the
general charge be comprehensive enough to
contain that devise or bequest.—[Spong v. S.,
1 Dow. & C. 365. approved of.—Mirehouse v.
Scaife, 2 Myl. & Cr. 695, commented on.]

A testator, V., residing in Ireland, who pos-
sessed real and personal property, made his will
in June 1836, and thereby devised freeholds
to trustees, for 99 years, to pay his wife an
annuity, and to pay another annuity to one of
his sons, for life. The estate was limited to go
after the son’s death to that son’s sons in t. m.,
‘V.gave to other sons other lands, of which some
were freeholds, and others were leaseholds.
V. created other annuities, and bequeathed
legacies; directed the different properties
devised and bequeathed, to fall, in specified
events, into his residuary estate; and, at the
close of his will, directed that, if his personal
and chattel property should be inadequate to
pay the pecuniary legacies bequeathed, the
deficiency should be paid out of his real and
personal estates, and charged and incumbered
the same with the payment thereof. In a
codicil, V. said :—“I charge and incumber all
my estates of every description, both real and
personal, with the following legacies.” To
these legatees V. gave a power to distrain
on any part of his property or estates of every
description, for the arrears of the interest due
on the annuities given by the codicil. The
Ld. Ch. of Ir. decreed that the legacies were
not charges on the specifically devised estates.
On appeal, the H. L. affirmed that decree.—
Conron v. C., 7 H. L. Cas. 168.

4. B. bequeathed two pecuniary legacies ;
and, as to all the rest of his real and personal
property, bequeathed and devised it to his son,
M., in the fullest manner he could, with liberty
to M. to dispose thereof as he thought proper.
M. mortgaged the real estate. Held, that the
legacies were well charged on the real estates
devised to M., who had not power to sell the
Jands discharged from the legacies.—Greville
y. Browne, 51, Jur. N. 8. 1 (H.L.); 7H. Lds.
Cas. 689.
568

1. Bequest, after several pecuniary legacies,
‘of all my bonds, shares in the bank, to A.,
by paying the above mentioned sums.” The
testator was possessed of several bonds, upon
which judgment had been entered, and of
some which were barred by the Statute of Li-
mitations. Held, that the moneys due on the
judgments entered on the bonds passed by
this bequest.—Mercer v. M., 10 I. C. R. 505;
51. Jur. N. 8. 296. (C.)

2. Bequest of “£1000 in the £33 per cent.
Trish stock,” to A., and, if she died unmar-
ried, or without children, over. The executor
did not appropriate stock to answer the legacy.
Held, that this was a general legacy of so
much money as would have purchased £1000
stock at the death of the testatrix; that the
executor was liable to pay A. interest at £5
per cent. on that sum from the period of
one year after the death of the testatrix.—
O’ Mahony v. Burdett, 13 I. C. R. 68. (R.)—
[Affd.: abid, 388. (C.A.)]

3. Bequest of “all my right and title to my
property in the town of R., namely, my dwel-
ling-house, and household furniture, and all
things therein, especially my car-horse, and
covered and side cars.” Held, that bank notes,
known by the testator to be in the house at the
time the will was made, passed to the legatee.-
Mahony v. Donovan, 14 I. C. R. 262. (R.)

 

LEGACY AND PROBATE DUTY.

[See 54 G. 3, ¢.92; 56 G.3,¢.56. As to
Return of Duty, 5&6 Vic. c. 79, s. 23. As
to Stamps on Administration Bonds, 13 & 14
Vic., c. 97, ss. 2&3. Now paid in Stamps;
Court of Probate Act, 20 & 21 Vic., c. 79, s.
104. Deposits in Savings Banks in certain
cases free of duty, 9 G. 4, c. 92, s. 46; 23 & 24
Vic., c. 111.]

4, Under 54 G. 3, c. 92, and the 56 G.3, ¢. 56
(the old Stamp Acts), a legacy charged on
real and personal estate, although paid out of
the realty exclusively, was liable to legacy duty.

A testator by his will gave certain pecuniary
legacies, to the payment of which he directed
his personal estate to be applied in the first
instance; and devised certain real estates to
trustees upon trust to invest the rents and
profits thereof from time to time in govern-
ment stock, until a fund should be realised,
which, with the produce of his personal estate,
would be sufficient to pay the legacies. The
personal estate proving insufficient for pay-
ment of the legacies, a bill was filed to carry
the trusts of the will into execution, anda
large fund was brought into Court by the
receiver of the real estate appointed in that
cause. Held (affirming an order of the Master
of the Rolls), that the fund brought in was
liable to legacy duty under the 54 G. 3, c. 92,
and 56 G. 3, c. 56.—Clelland v. Ker, 61. E. R.
35, 288. (C.)

 

LEGAL ESTATE.
See Estate, XIII.

[LEGACY DUTY.—LEGATEES.]

LEGAL ASSETS.
See Exxcurors, X. 2

 

LEGATEES.

— Their Rights and Liabilities. See PLEADING,
Parties, 13—Resipvuz, IV.

5. A. bequeathed to his wife an annuity of
£1000 for life, and charged it upon all his real
‘property, except a freehold estate, which he
devised to her. He directed that the first
payment of the annuity should be made on
the gale day next after his decease, and em-
powered her to take all remedies for the
recovery thereof, as in case of rent service
were usual. A. then charged all his debts
upon all his real estate (except that portion
devised to his wife) in aid of his personal
estate, and bequeathed three other annuities
in the very terms used in bequeathing the
annuity to his wife. Between the bequests of
the first}and second of those three annuities
A. interposed bequests of several pecuniary
legacies charged upon all his real estates, ex-
cept the part bequeathed to his wife. Held,
that, upon the true construction of the will,
the annuitants were not entitled to priority
over the legatees.— Creed v. C., 41. E. R. 525;
1 Dr. & War. 416. (C.)—[Reversed: 11 Cl.&
F. 491. (H.L.)]

6. An executor contracted with legatees
to purchase their legacies, which were ac-
cordingly assigned to a trustee for him, in
consideration of sums less than the legacies.
It was admitted that the transaction could not
be sustained for the executor’s benefit. Held,
that the deed of assignment did not operate
as a release of the estate, and could not be
upheld against the legatees, who executed it,
for the benefit of their co-legatees.—Barton v.
Hassard, 3 Dr. & War. 461. (C.)

7. V., by will, directed a debt of £25,000, to
form part of his residuary estate, and be-
queathed all his residuary estate to his execu-
tors in trust to raise and collect it, and invest
from time to time, and pay the interest among
certain legatees, for their lives. Afterwards,
V. joined in a deed which provided that no
interest should be payable during his life on
the £25,000; postponed payment of the prin-
cipal till three years after his death; and
agreed that the principal and three years’ in-
terest should then be payable by instalments
of £2000 a-year, and that if they were punctu-
ally paid no more than the three years’ interest
should be payable. Afterwards, by a codicil,
V. declared that this arrangement should not
affect his will. Held, that the three years’
interest did not form part of the capital sum
to be invested, but belonged to the legatees
for life—Caulfield v. Maguire, 8 I. E. R. 164;
2Jon.&L.141. (C.)

8. By a will, reciting that the testatrix, V.,
was entitled to £2255, stock, she bequeathed
that sum to a trustee to divide in the follow-
ing shares. V. then bequeathed specific lega-
cies; and directed that these sums, described

 
([LEGATEES—LENGTH OF TIME.]

as amounting to £1769, should be paid out of
the stock, and that the balance, amounting to
£495 or thereabouts, or whatever it might
amount to, should be paid to X. The amount
of stock was only £1750. Held, that the gift
to X. wholly failed; and that the remaining
legatees could not be required to abate rate-
ably with yhim.— Williams v. Armstrong, 12 I.
E. R. 356. (C.)

1. Before the Master’s report, dated the
16th June, allocating a sum of bank stock to
the assignee of legacies, as equivalent at the
price of the day, on the Ist June, to the prin-
cipal and interest of those legacies up to that
date, the bank delared a bonus, payable on
the lst July. On the 4th July, the Court
ordered the stock to be transferred to the as-
signee. Held, as between him and the residu-
ary jlegatees, that he was entitled to the bonus
on the stock transferred.—Hilton v. Mills, 2
IgJur. N.§.175. (R.)

2. The costs of proving a will in the common
form are always paid out of the residue, and
should not be charged on a legatee.— Nugent
vy. N., 81. Jur. N. 8.52. (P.)

3. A marriage settlement gave a power to
appoint amongst her children £10,000, to a
testatrix who, by will, appointed to each of
three of her children one-sixth of this fund ;
and, in a subsequent part of the will bequeathed
to each of them £1000. She directed that
those legacies, and their respective shares of
the appointed fund, should, within twelve
months after her decease, be settled upon trust
for those children for their respective lives;
and, after their decease, for their issue, in
such shares and proportions as they should by
deed or will appoint; if no issue, for such
person or persons as they should by deed or
will appoint to. The will then expressly pro-
vided: that if the settlements of the legacies
and of the shares of the appointed fund were
not made in the prescribed manner, the lega-
cies should become absolutely forfeited, and
should sink into the residue of testatrix’s
personal estate. Held, that, owing to the ex-
press clause of forfeiture, the legatees could
not take the legacies without settling their
shares in the appointed fund according to the
testatrix’s directions.—[ Moriarty v. Martin, 3
I. C. R. 26, disapproved of.]—King v. K., 15
IC. R. 479. (C.)

4, A legatee under a’ will disputed the due
execution of a later will, of which the water-
mark showed that it had been antedated. He
was allowed his costs.— Cowan v. Rankin, 10 I.
Jur. N. 8.38. (P.)

5. An administrator is not bound to ‘sell
chattels real of his intestate, in order to dis-
tribute the produce amongst the next-of-kin,
when there are not any debts to be paid. If
any of the next-of-kin require it, the admin-
istrator may convey to them their respective
shares.

In a suit to administer an intestate’s assets,
the Court may, after payment of the debts, &.,

 

569

if any of the next-of-kin require it, declare
their rights to chattels real, without directing
a sale. [See G. O.in Chancery; Gam. Ch. Or.,
p. 169.]—Bradley v. Head, 16 I. C. R. 236. (R.)

 

LEGITIMACY.

 

LENGTH OF TIME.

See Account, III—Pueapine, Piva, 10.

— Respecting Setting aside Charity Leases, be-
cause of Length of Time. See Cuarity,
II.

— As to Forfeiture of Right to Renewal. See
Leass, VIII, 4.
I. GeneraLtty—Irs Errect.
II. Ivs Errect rn RELation TO Fraups anp
Trusts.
TI. Errect on Accounts.
IV. Errect on Morteaces.

 

I. Lenertu or Time GENERALLY: Irs Errecrt.

6. After a decree, the bar to the right of
reviving the suit, which arises from delay in
in the proceedings, depends altogether on the
discretion of the Court.

If a bill of revivor is filed at any time within
20 years after a decree to account, the Court
will not refuse relief, unless there has been
such a variation of the rights of parties as to
occasion danger of working positive injustice
and injury to the other persons. — Higgins v.
Shaw, 2 Dr. & Wal. 856; 1 Con. & L. 400. (C.)

7. Effect of length of time as a bar as
between executor de son tort, who afterwards
obtains administration, and the next-of-kin.—
Scott v. Knox, 41. E. R. 397. (E.E.)

8. When for a long period, such as 23 years,
parties have acquiesced under an agreement,
they will not be permitted to impeach it on
grounds of alleged illegality.— Westby v. W., 4
I. E. R. 585; 2 Dr. & War. 502; 1 Con. & L.
537. (C.)

9. Petition for renewal] under 1 W. 4, c. 65,
s. 16, refused because of the great lapse of time
since the death of one of the lives named in
the original lease.— Sheehy v. Bradshaw, 6 I. E.
R. 397; Dr. Rep. temp. Sugden, 307. (C.)

10. Under her father’s will, and an appoint-
ment by his executrix, her mother, ptf. was
entitled. Being in embarrassment, without
professional advice, and ignorant of her claims,
G., her solicitor, induced her, in 1833, to convey
to him all her rights (which he represented to
be only one-half of their real amount), for a
rentcharge on those lands; payment to be per-
sonally secured by him, The deed, drawn by
G., contained no clause of re-entry or covenant
by him to pay. A. non-alienation clause was
inserted, fraudulently as was alleged. In 1836
G. ceased to pay. Iu 1845 the bill was filed
to set aside the deed, and carry the trusts of
the will into execution; for an account of
testator’s property, so far as to ascertain ptf.’s
rights; and, if necessary, of her mother’s per-
sonalty. B., the mother’s executor, adminis-

72
570 [LENGTH
trator de 0. 2. of the father, was made a party;
but the testamentary trustee was not. On
demurrer by G.; He/d, that the length of time
since the deed’s execution, falling short of 20

years, could not be set up by him on demurrer.
—O’Kelly v. Glenny, 91. E. R. 25. (R.)

1. In 1787, a lunatic made to his brother a
lease for lives, with covenant for perpetual
renewal. The lessee, till his death in 1836,
remained in undisturbed possession of the
lands. Inthe meantime several reports, made
in the lunacy matter, found the sum due by
the lessee for rent, and that he was liable for
the whole rent reserved, though he was in pos-
session of part only of the lands. They also set
off the sum due against claims on the lunatic’s
estate. After the lessee’s death, his son,
the deft., entered, and continued in possession
till 1842, when the lunatic died; and the re-
version in fee descended on the deft. Ona
bill by the lessee’s judgment creditor—Held,
that the lessee had not acquired the fee, or a
right of renewal, by the length of possession,
and the proceedings in the lunacy matter; and
that deft. was not chargeable with the rents
received by him between 1836 and 1842 as
assets by descent.—Fulton v. Creagh, 9 I. E. R.
289; 3 Jon & L. 829. (C.)

2. D., tenant for life, purporting to exercise
a leasing power, made, in 1767, a lease which
contained a covenant for quiet enjoyment
against the acts of all persons claiming
through him. In 1791 and 1792, D., and his
son, C., tenant in tail in remainder, joined in
suffering recoveries ; and resettled the estates
subject to the existing leases. C. was thereby
secured an annuity of £2000, besides £30,000,
to pay his debts. In 1799, D. died. After-
wards, C. and the then remainderman again
resettled the estates. In 1848, the lease was
impeached as an excess of the power. Under
the circumstances, the owners of the estate
were obliged to raise the objections to the lease
in equity.

Semble—The mere lapse of time, and the
acquiesence from 1767 to 1848 would bar them
from relief.— Marquis of Donegal v. Greg, 131.
E.R. 12. (C.)

8. In 1850, a bill was filed to set aside for
fraud a limitation under a deed of 1818, by
which the reversion in lands was limited to
deft. for life. The bill stated that the deft.
went to America in 1822 to avoid service of
the subpena, and there concealed herself,
which prevented the grantor from taking pro-
ceedings to set aside the deed; and that he
devised the lands to the use of the ptf. for life,
“with remainder as therein,” and devised the
residue of his estate to ptf. absolutely, On
demurrer—Held, that the lapse of time did
not bar the ptf.; and that she might, as
devisee, maintain a suit to set aside the deed,
without making the heir-at-law of the grantor
a party.—Johnston v. Howison, 13 L E, R. 463.

(B.)

4. In 1767, D., seized of an undivided fourth
of fee simple and renewable leasehold estates,

 

OF TIME.]

demised her fourth to L. for 999 years, subject
toarent. L. was at the time owner of an un-
divided fourth of the same lands. L.’s interest
became vested in S., who also became entitled
to the remaining two fourths. C. became en-
titled to D.’s interest in the reversion, and the
rent was paid to her by S. up to 1828, when
C. died, having devised her interest to the
petr. On C.’s death, S. denied the petr.’s
title; refused to pay him the rent; and as-
serted a title to retain the rent for her own
benefit. This claim appeared to have been
made under a bona fide belief that the title
had devolved upon 8. S. died leaving the
respt. entitled to her interest, who in 1835
obtained a renewal of the leasehold lands. In
1857 the petr. filed a petition to have the re-
newal declared a trust for him. Held, that he
was barred by the lapse of time from 1828.

A petr. may read on his evidence a portion
of respt.’s affidavit, without making the whole
his evidence. Archbold v. Scully, 8 I. C. R. 177.
(C.)—[Affd.. 9 I. C. R. 152; Dr. Rep. temp.
Napier, 330. (C.A.) —[Reversed: 9 H. Lds.
Cas. 360.]

5. In 1703 lands were demised for 500 years.
The representatives of the lessee dealt with
them from 1725 until 1840, as if they had been
freehold.

The devolution of title between 1726 and
1770 was not proved. Held, that, as between
persons claiming under a deed of 1770, the
lands were to be treated as if a release of the
reversion on the 500 years’ term were to be
presumed.—Lysaght v. Royse, 12 I. C. R. 444.
(C.)

 

Il. Irs Errect IN RELATION TO Fraups
AND TRUSTS.

6. After the lapse of a long time since the
transactions complained of, there having been
in esse parties competent to impeach them,
fraud must not be assumed on doubtful evi-
dence. If it is clearly proved, no lapse of time
will protect the parties to it, or those who
claim through them, against the jurisdiction
of a Court of Equity. In that case it is im-
material by what machinery or contrivance
the fraudulent transactions may have been
effected, whether by a decree in Equity, or a
judgment at Law, or otherwise. In proportion
as such jurisdiction is powerful, so should the
Court’s caution be anxiously exercised, lest in
its zeal to do equity, the reverse may be
effected.—Bowen v. Evans. 2 H. Lds. Cas. 257.
—[Affg. 61. E. R. 569; 1 Jon. & L. 178. (C.)]J

 

Ill. Errect on Accounts.

7. When a bond and warrant, &c., on which
judgment had been entered, had been given
27 years before for costs due to a solicitor,
upon an allegation that they had not been
taxed or settled, the Court refused to refer
them for taxation at the instance of the client’s
surety, and against the executor of the solici-
tor’s executor; the solicitor having been 20
reas dead,—Mazxwell v. O'Dell, S. & Se. 124.
R.)
[LENGTH OF TIME.—LIEN.]

1. A tenant at a bulk rent of lands, over part
whereof a receiver had been appointed, having
for years made payments generally on account
of rent to the receiver, and allowed him to
allocate them partly to the credit of the cause,
and partly to the person to whom belonged the
rent of that part of the land not in the cause;
and having long acquiesced in that allocation
—Held, that the tenant was bound by that al-
location.—Colthurst v. C., 7 I.E. R. 305. (E.E.)

2. Under a decree of 1817, made in a suit
by the grantee of an annuity, charged upon
lands, against judgment creditors of the gran-
tor, who were in possession by elegit; an
account was taken of what was due to the
grantee, and a receiver was appointed over the
lands. The grantor, not a party to the suit,
died in 1842, without having impeached the
account of 1817. The grantee having also
died, his executor, in 1848 (up to which year
the receiver had continued in possession), filed
against the grantor’s co-heiresses a bill for an
account of what was due for arrears. The
defts. insisted that the account taken in the
former suit did not bind them, having been
taken in the grantor’s absence. Held, that his
acquiescence for 25 years, and that of the
defts. during six years, disentitled them to an
account de novo of what was due in 1817; but
that they might surcharge and falsify. —
DL’ Estrange v. White, I. C. BR. 15. (C.)

 

IV. Errsect on Mortcaces.

 

LESSOR AND LESSEE.

See Lanptorp anp Trenant—- PLEADING,
Parties, 14—Tueir Tirte. See
Tirxe, V.

 

LETTERS.

— Private. See Corrricut, Il— Private
LETTERS.

— Agreement by.

— Settlement by.

See AcreEmEntT, IV.
See Sutrtement, II.

 

LETTER MISSIVE.
See Practice, Process—PEER.

 

LEVYING FINES.
See Frnzs, II.

 

LIABILITY.

— Of Partnership Assets to separate Creditors.
See Partnersuip, IV.

 

LIBEL.

 

571.

LIEN.

See AppropriaTion—Bankruptcy, XII, 1,
XIII, 4, 6—Leeacy, VII, 2—Part-
NERS, XI—Practicr, OFFICERS OF
Court, 1, ¢—Priority or SEcurRITY,
IJ, 83—Souiciror, VII—VEeNpDoR AND
Pourcuaser, XII.

I.—How Created anp ACQUIRED.
1. By Contract.
2. By Custom, or Implication of Law.
Il—To wat, aND HOW FAR THE LIEN
EXTENDS.
III.—How tost, &c.
IV.—GENDERALLY.

 

I.—How Lien 1s CreaTep AND ACQUIRED.

1. By Contract.
2. By Custom, or Implication of Law.

 

I. 1. By Contract.

3. A. conveyed her life estate in lands to
her son, in consideration of his paying the
rent of a house for her, and supplying her
with sufficient hay and corn. He covenanted
to pay the rent, and to supply the hay and
corn. Held, that A. had on the lands a secu-
tity in the nature of a vendor’s lien for the
purchase-money, for the performance of the
son’s contract. — Richardson v. M‘Causland,
Beat. Rep. 457. (C.)

4. In 1817, A., not then « trader, on his
marriage covenanted that all his property,
real and personal, as well that in possession
as that after acquired, should be charged with
£3000 as a provision for his wife and their
issue. Afterwards A. became a trader, and
in 1835 was declared a bankrupt. On a bill
filed by the wife and children—Held, that the
covenant to charge after-acquired property
created a valid charge on all A.’s freeholds
bought after the marriage, and should be
specifically executed against the assignees in
bankruptcy.—Lyster v. Burroughs, 1 Dr. & Wal.
149. (C.)

5. A., on his marriage, charged £2000 spe-
cifically, not only on the real estates then in
his possession, but also on all his after-ac-
quired real and personal estate. A. after-
wards incurred large debts. On a bill filed
to raise that sum—Hedd, that it was » valid
charge affecting the after-acquired property,
if the lands named in the settlement (which
were declared the primary fund) proved in-
sufficient. Priority was given accordingly.—
Gubbins v. G., 1 Dr. & Wal. 160, 2. (C.)

6. A. was entitled, under his father’s mar-
riage settlement of 1783, to a younger child’s
portion; and in 1825 filed his bill to raise it,
praying also an account of all prior incum-
brances, the inheritrix having set up articles
executed in 1765 on the marriage of ptf.’s
father’s eldest brother, and which had been
duly registered in 1767. Held, that the charge
under the articles of 1765 was not affected by
the 3 & 4 W.4, c. 27, that statute not being
retrospective; and that the account of in-
terest on foot of this charge should be con-
572 How
fined to the filing of the bill—Peyton v.
M‘Dermott, 1 Dr. & Wal. 198. (C.)

1. Whenever debts are directed to be paid,
they become a primary charge on the fund
out of which they are so directed to be paid,
unless there is something in the will to con-
fine the generality of the charge.— Harding v.
Grady, 4 I. BE. R. 371; 1 Dr. & War. 430. (C.)

 

I. 2. Lien created by Custom, or Implication of
Law.

2. When one in possession of premises as
assignee of a lease, subject to an annuity and
other charges, and, pending an eviction for
non-payment of rent, enters into a new agree-
ment whereby, subject to the right of redemp-
tion, he is, in consideration of £750, to get
a lease at a less rent, to commence from the
termination of the nine months allowed for
redemption there, though the ejectment pro-
ceeding has been perfected, and the eviction
actually had, yet the new interest is a graft
upon the old; and, as such, subject to the
annuity.—Jones v. Kearney, 4 I. E. R. 2; 1
Dr. & War. 134; 1 Con. & L. 34. (C.)

8. An incumbrancer agreed to advance
money to preserve K. from eviction for non-
payment of rent, and took a security by deed
affecting K. and other lands, for the re-pay-
ment of the advances. She afterwards paid
the rent, and redeemed K. JZeld, that she
was entitled as against an incumbrancer on
K., when redeemed, to be paid the advances
in priority; and that, since full effect could
not be given to her security by deed, she was
remitted to her lien.—Kehoe v. Hales, 5 I. E.
R. 597. (E.E.)

4. By settlement, £2500 were charged on
an estate for lives, renewable for ever, for the
issue of the marriage, subject to appointment.
Part, being appointed to one child on her
marriage, was settled. The residue was never
appointed. After the first settlor’s death, A.,
solicitor of B., the other child, acting under a
power of attorney, obtained a renewal, and
instituted, but never prosecuted, a suit in B.’s
name to raise his share of the unappointed
charge. On B.’s death, A. obtained limited
administration to him; and, with the parties
entitled to the married child’s share of the
charge, filed a bill to raise the charge. A
receiver was appointed, and funds. got in.
The lands having been sold in a creditor’s
suit, and the settlements lodged in the office
by order, without prejudice to A.’s lien—Held,
that A. had not on the deeds any lien for
costs, since B., through whom A. had gotten
the deeds, had not had any exclusive right to
them ; and that there could not be any lien
transferred to the funds.—Molesworth v. Rob-
bins, 81. E.R. 1. (R.)\—[Affirmed: ibid, 223;
2 Jon. & L. 358. (C.)]

5. Ptf., by his bill, stated that J. and others,
next-of-kin of R., agreed that ptf. should have
£300 for his trouble and services in collecting
evidence, &c., to establish their claim, which
was disputed; and that they, and particu-

[LIEN.]

 

Created.

larly J., promised that ptf. should have
a lien for that sum on the assets; that, in
consequence of his exertions, the parties were
declared next-of-kin, and that J. and another
of them, since deceased, took out administra-
tion. The bill prayed that ptf. might be
decreed to have a lien on the assets. On
demurrer—Held, that the claim, so far as it
was a personal claim, was a demand for work
and labour, and was recoverable, if at, all, at
law; that J.’s promise to give a lien on the
assets before administration could not be
enforced against the assets when J. and an-
other afterwards administered ; and that, even
if J. alone had administered, that previous
promise was made by a stranger, and could
not avail.

Quere—W ould such promise, if made after
administration, be binding ?

A demurrer for want of equity will lie to a
cross bill— Kirwan v. Gorman, 91. E. R. 154.

(R.)

6. Redemption money advanced with the
consent of the inheritor, by the assignee of a
disputed judgment, is a lien upon the lands,
and a good equitable incumbrance.

The Court will interfere by a receiver to
preserve a property where there is danger of
eviction, even although the plaintiff’s demand
is disputed, if he has a prima facie right.—
Fetherstone v. Mitchell, 9 I. E. R. 480. (R.)

7. In 1847, an order to supersede a com-
mission of bankruptcy was made with costs,
to be paid by the petitioning creditors. Before
those costs were paid the party was discharged,
in 1849, as an insolvent. Held, that the as-
signee in the insolvency matter, who had been
a petitioning creditor in the bankruptcy mat-
ter, took the costs under the order of 1847
subject to the lien of the solicitor who had
obtained it; and could not be allowed to set
off against that lien a debt due to himself by
the insolvent when those costs were incurred.

Upon motion, the Court varied the order, by
directing the petitioning creditors to pay the
solicitor the amount of the taxed costs.—IJn
re Petticrew, 1 I. C. R. 102. (C.)

8. A stop order gives no priority to the
party who has obtained it, unless it is lodged
with the Accountant-General; the lodgment
being equivalent to notice to the trustee of
the fund, or the debtor.

A bill for an injunction was filed by W. in
a cause of W. v. S., to restrain S. from suing at
law on bills of exchange. Notice of a motion
to give security for costs was served, pending
which W. obtained a decree pro confesso, where-
by it was referred to the Master to take an
account of the money bona fide advanced by 8.
to W., who undertook to pay any balance
which should be found due by him on the
account. An order was afterwards made, on
consent, that the decree and injunction should
be set aside, S. undertaking to file his answer
within a month; and that he should have a
lien on the funds reported or decreed in the
cause of W. v. M‘K., and if the answer was
not filed within a month, that the decree
and injunction should remaininforce. After-
To what it

wards E. obtained an order in the cause of W.
v. M'K., that the same funds should be charged
with the sum in favour of E., and that when
the funds should be allocated, he should be at
liberty to file a charge, and be reported the
sum. eld, that S. had acquired alien on the
funds for any demand for costs, or otherwise,
which he should establish his right to in the
suit of W.v. S.; and that he had priority over
E., neither party having lodged his order with
the Accountant-General.— Waller v. Waldridge,
3 1.C. R. 155. (R.)

1. A bank discounted bills drawn by a trader
on his consignee, who refused to accept them.
The consigned goods were subsequently sold.
Held, that the bank had not a lien on the
goods, or a claim on the proceeds of their sale.
—In re M‘Kean, 8 I. Jur. N. 8. 16. (B.)

2. S. agreed with E. to purchase from him
lands already sold in the I. E. Court, but not
yet conveyed. <A bill of exchange, accepted
by the T. bank, was to form part of the con-
sideration for the purchase. S. forged a
conveyance from the I. E. Court to persons
from whom he traced title to himself; and
executed to W. a conveyance, reciting the
forged conveyance as if genuine. Afterwards
the I. E. Court executed to S. a conveyance
reciting the purchase-money to be E.’s. Held,
that under the genuine deed an interest in the
land passed by estoppel to W.; and that E.
had not a lien for the amount of the bill.—
Eyre v. Sadleir, 15 I. C.R.1. (C.A.)—[Revg.
decision below: 141.C. R.119. (C.)]

8. When there are transactions between
an arranging trader and a third party, and a
mistake, respecting the amount, is made
against that third party, who, in ignorance
thereof, gives up railway shares, no lien will
follow them.—Re North, 10 I. Jur. N. S. 297.

@.)

4. In a composition after bankruptcy, a
manager was appointed by resolution of the
creditors, with a definite duty in the manage-
ment of a grazing and farming estate. The
auctioneer received from him a note tell-
ing him that he could deduct from the
proceeds of the auction a sum due on the
manager’s promissory note. The auctioneer
knew that the writer was then acting as
manager. Held, that the auctioneer had not
any specific lien on the property sold by him
in violation of the manager’s duty.

That the letter gave no equitable title
against the assignees ; and that, neither under
the Factors Act, nor in any other way, could he
make title to the proceeds of the sale of all the
bankrupt’s stock taken possession of under
colour of the authority given by the manager’s
letter.—Re P. Grehan, 11 I. Jur. N. 8.40. (B.)

 

Il. To wHat, AND How FAR THE LiEN
EXTENDS. :
5. A solicitor, having a lien upon a deed
for his costs, will not be ordered to furnish
them, or to deliver up the deed, without

[LIEN.]

 

Extends. 573

getting an express undertaking that his costs,
when taxed, will be paid.—M ‘Kenny v. Cham-
bers, Jon. & Car. 105. (E.E.)

6. In 1817 A., not then a trader, on his
marriage, covenanted that all his property,
real and personal, as well that in possession
as what he should thereafter acquire, should
be charged with £3000 as a provision for his
wife and their children. Afterwards A. became
a trader. In 1835 he was declared bankrupt.
On a bill filed by the wife and children—Held,
that the covenant to charge after-acquired
property created a valid charge on all his free-
holds bought after the marriage, and should
be specifically executed against his assignees
in bankruptcy. — Lyster v. Burroughs, 1 Dr. &
Wal. 149. (C.)

7. A., on his marriage, charged £2000 speci-
fically, not only on the real estates then in his
possession, but also on all his after-acquired
real and personal estates. On a bill filed to
raise that sum—Aeld, that it was a valid
charge affecting the after-acquired property,
if the lands named in the settlement (which
were declared the primary fund) proved in-
sufficient. Priority was given accordingly.—
Gubbins v. G., 1 Dr. & Wal. 160, ». (C.)

8. V., by will, directed that his widow and
second son, the devisees of his estates, should
apply a sum not more than £400 a-year for
the care and maintenance of his son, J., a
lunatic ; aiid that whoever should be at any
time in possession of his L. estate should
during J.’s life apply such sum annually for
J.’s comfortable support, care, and main-
tenance; such sum to be deemed a charge
thereon. Held, that there was no greater
charge upon the estate than what was actually
required for and applied to J.’s maintenance.
—AIn re Ponsonby, 5 I. E. R. 268; 3. Dr. & War.
27; 2 Con. & L. 30. (C.)

9. The lien of a solicitor upon the deeds of
his client’s estate cannot prevail against a
judgment creditor, for any amount of costs
greater than those incurred at the rendition
of the judgment.

Semble—When ptf., having a right as a prior
incumbrancer to the production of the deeds
by the solicitor, insists upon that production,
the solicitor loses his lien.— Blunden v. Desart,
5 1. E.R. 221; 2 Dr. & War. 405; 2Con.& L.
lll. (C.)—[Revg. 5 LE. R. 62; FL & K.
572. (R.)]

10. Quere—Whether a solicitor’s lien for
costs incurred after, and on the faith of, a de-
posit of deeds, to which he trusted as a security,
can prevail against a mortgage of which he
had notice ?—Blunden v. Desart, 5 I. E. R.
59. (R.)—[Sees. c., 5.1. E.R. 221; 2 Dr. &
War. 405. (C.)

11. A solicitor’s lien for costs in a suit ig
is subordinate, and to be postponed to the
equities between the parties.—-Guwyna vy. Krous,
71. E.R, 274. (R.)
574 How

1. By settlement, £2500 was charged, on
an estate for lives renewable for ever, for the
issue of the marriage, subject to appointment.
Part was appointed to one of the children on
her marriage and then settled ; the residue
was never appointed. After the death of the
first settlor, A., solicitor of B., the other
child of the marriage, acting under a power
of attorney, obtained a renewal and instituted
a suit in his name to raise his portion of the
unappointed charge; but did not prosecute
it. On the death of B., A. obtained limited
administration to him ; and, with the parties
entitled to the daughter’s share of the charge,
filed a bill to raise the charge. A receiver was
appointed, and funds were got in. The lands
being sold in a creditor’s suit, and the settle-
ments lodged in the office, by order, without
prejudice to A’.s lien—Held, that A. had no
lien for costs on the deeds, as B., through
whom he got them, had no exclusive right to
them, and that there could not be any lien
transferred to the funds.

That A. was entitled out of the funds to
the costs of procuring the renewal, and also
to the costs of the limited administration out
of the funds reported to B.’s representative ;
but that he was not entitled out of the funds
in the cause to his costs of the suits instituted
by him in B.’s lifetime, and as his administra-
tor after his death —Molesworth v. Robbins, 8
I.E.R.1. (R.)—[Affd.: ibid, 223; 2 Jon & L.
358. (C.)]

2. The Court has not jurisdiction to order
the personal representatives of a deceased so-
licitor to deliver up title deeds on which they
claim a lien— Allen v. Jervoise, 11 I. E. R.
583. (R.)

8. Though a solicitor discharge himself, he
will not be directed to deliver to his client the
documents upon which he claims a lien, un-
less a necessity for such a course or danger of
loss be shown.—Limk. § Wat. Railway Co. v.
O’Ferrall, 11. Jur. 193. (R.)

4, When a solicitor has a general lien upon
papers of his client, which are required for
the purposes of a suit, the Court has the
power of forcing him to bring in the deeds,
and of preserving his rights as they existed on
the papers.—Edge v. Billing, 1 I. Jur. 285.
(E.E.)—[ Taylor v. Gorman, 61. E. R. 330; 7
I. E. R. 259. (C.); Blunden v. Desart, 2 Dr.
& War. 405, and Bozon v. Bolland, 4 M. & Cr.
354, considered. ]

5. A Commission Examiner having given
up the depositions without being paid—Held,
nevertheless that he had a lien upon them;
and the Court directed that they should not
be used on behalf of a party who would not
pay his share of the Commissioner’s fees and
expenses.— Murphy v. O’Connor, 2 I. Jur. 84.
(E.E.)

6. A defendant, by answer, stated that a
deed was in the possession of a solicitor’s
personal representative, who claimed a lien
on it. The Court ordered him to produce it,
with liberty to the defendant to apply, if the

[LIEN.]

 

Lost.

production or inspection was refused, on pay-
ment of the costs due to the personal repre-
sentative.—Monsel v. Lindsay, 13 I. E. R. 144.
(R.)

7. A solicitor, H., who claims for antecedent
costs a lien upon deeds of a former client, and
who, by producing them, enables her to reco-
ver afund ina suit in which H. had acted, has
upon that fund alien only for costs due to
him out of the suit.

H., solicitor of B., held possession of the
title deeds of her estate, and, claiming a lien
thereon for antecedent costs, presented a
petition on B.’s behalf to sell her estate in
the L. E. Court. An order for sale having
been made, B. changed her solicitor. H. was
ordered to lodge the title deeds, subject to
lien. Held, that his lien upon the price realised
in the L. E. Court was confined to his costs
incurred in that matter.—In re Bayly’s Estate,
121.C. R. 315; 61. Jur. N.S. 25. (C.A.)

 

Ill. How tosz, &c.

8. Semble—If a man sells lands which are
subject to specialty debts, this Court will pre-
sume that the purchase money is to be applied
to discharge them, and that the sale is made
with that view. The purchaser will be dis-
charged.—Higgins v. Shaw, 2 Dr. & War. 356 ;
1 Con. & L. 400. (C.)

9. A solicitor, to whom a judgment has been
assigned in trust for his client, afterwards
assigning to a trustee of a settlement made
upon the marriage of his client’s grandson,
parts with his lien upon all documents relating
to the title to the judgment of claimants under
the settlement.—Fitzgerald v. Bermingham, 1
Con. & L. 405. (C.)

10. A solicitor filing in the L. E. Court a
petition for sale, and lodging deeds in Court
under an order to do so, but without intimat-
ing to his client that he retains his lien upon
them, loses it thereby, although the order
contains the words “ subject to lien.” — In re
Bayly’s Estate, 12 I. C. R. 315; 61. Jur. N.S.
25. (C.A.)]

 

IV. Lien GENERALLY.

11. Form of enquiry in an incumbrancer’s
suit, when the deeds are in possession of a so-
licitor, a defendant, who claims a lien for costs
which is disputed.— Walcott v. Graves, 11 I.
E. R. 396. (C.)

12. When a petition to sell an undivided
moiety of any land which is afterwards parti-
tioned by order of the Court is filed, the lien,
given by the partition order on the unsold por-
tion for its proportion of the partition costs,
is a charge bearing interest at the rate of £5
per cent. per an. from the order’s date—Foz v.
Wybrants, 61. Jur. N. 8.165. (L.E.C.)

18. When a bankrupt’s assignees dispute
the right of lien, and a doubt exists on the
subject, this Court will not make an order to
give up the property; but will leave them to
Void.

establish their right by law, if so advised.—
Re Murray, 91. Jur. N.S. 98. (B.

 

LIFE ESTATE, OR LEASE FOR LIFE.
See Estate, I1]—Lrasz, IV.

 

 

 

LIGHTHOUSE.
LIGHTS.
See Ancient Licuts—Practice, InguncrTion,
13.
LIMITATIONS.

— In Default of Appointment. See Power, IX.

— Of Terms. See Terms, I.

— Of Estates in Realty or Personalty. See
Estate, I, I, I, (X—Inrerest in Pro-
PERTY, V.

— Of Contingent Interests. See INTEREST IN
Proverty, V—Power, [IX—Tenrms, I.

I.—WuHEn VoIp GENERALLY.
II.— Limitations OVER, WHEN GOOD.
III.—ConbITIoNaL AND CONTINGENT.

I. Limitations: WHEN VOID GENERALLY.

1. A., tenant for life, and R., his son, and
first tenant in tail, suffered a recovery, and
declared the uses to be to the use of N., his
heirs and assigns, until the principal sum
of £4000, with interest, should be paid to N.,
his executors, &c.; and when and as soon
as the £4000 should be paid and satisfied,
then to the uses of a settlement of 1737.
Those uses were, to A.’s use for life ; remain-
der to his first and other sons in tail. Held,
that the declaration to the uses of the settle-
ment of 1737, though void as a limitation of
the legal estate, was a good declaration of
theftrust estate— Stoney v. Saunders, H. & J.
519. (E.E.)

2. W., entitled to an annuity, and toa fund
in reversion, on his first marriage, assigned
them, in trust, to pay the annuity to W. for
life, or until he should become bankrupt or
insolvent; and from the time of his death, or
of his becoming bankrupt or insolvent, upon
trust, fin favour of the wife and the issue of
the marriage. Upon his second marriage, W.
assigned to trustees another fund, to which he
was entitled after the death of A., in trust,
for himself for life after the death of A., or
until he should fail in circumstances, or be-
come bankrupt or insolvent; and after his
decease, bankruptcy, or insolvency, to pay the
principal sum amongst his two children of the
first marriage, and the issue of the second
marriage, as he should appoint, &c. Held,
that the insolvency in the settlement on W.’s
first marriage, on which the limitation over
was to take effect, was an inability to pay his
debts, and not taking the benefit of the Insol-
vent Act.

[LIMITATIONS.]

 

Over. 575

Semble—A. limitation in a settlement, that
the settlor’s property shall go over on his in-
solvency, is valid.

Held, that the limitations in both the settle-
ments were valid as against trustees, to whom
W. had assigned his life interests for the pay-
ment of his creditors, when he was unable to
meet his debts and liabilities.

That «a failure, bankruptcy, or insolvency,
meant by the second settlement, before the
death of A., the first tenant for life, would
give effect to the limitation over.—Zn the
matter of Casey’s Trusts, 31. C. BR. 419. (R.)—
[See, on appeal, 41. C. R. 247. (C.)]

3. A limitation in a settlement of the settlor’s
property to himself for life, or until he shall
become insolvent, with a provision that it
shall go over on his insolvency, is not valid.—
In re Casey’s Trusts, 41. C. R. 247; 71. Jur.
133. (C.)

4. L., upon his marriage, settled renewable
freeholds to the use of himself for life, remain-
der upon trust for the eldest son of the mar-
riage till he attained age, then upon trust to
convey to him absolutely. The deed empow-
ered L. to revoke the limitation to the eldest
son, and relimit to the sons of the marriage
in such priority as he should think fit. P.,
the eldest son, attained age before 1802. In
1802, by deed reciting the settlement, L. and
P. conveyed the settled lands to trustees and
their heirs, to the use of L. for life, remainder,
as to part, to the use of such younger son or
sons of L. as he should by deed or will ap-
point to. Held, that L. could not, under this
power, appoint to his younger sons estates
greater than for life—Lumphier v. Drapes, 14
I. C. R. 83. (C.)

 

II. Limitations OVER; WHEN GOOD; WHEN
TOO REMOTE. ’

5. A post-nuptial settlement conveyed lands
to trustees to A.’s use for life; remainder
to preserve, &c.; remainder to the use of B.
(eldest son of A.) and his heirs, and for de-
fault thereof to the second, third, &c., and all
and every the other sons of A. severally in t.
m., &c. ‘B. died without issue. Held, that,
since B. was only tenant in tail, upon his
decease without issue male, the second son
was entitled under the limitations to only an
estate in t. m., and did not take as B.’s heir-at-
law.— Wall v. Wright, 1 Dr. & Wal. 1. (C.)

6. V., in 1819, devised lands to his son A.,
and his heirs for ever; if A. should die with-
out lawful issue, desired that after his death
all the property should go to his daughter and
her heirs; and, if both A. and the daughter
should die without lawful issue, desired the
property should go his brothers. Held, an
estate tail in A.; not a fee-simple with an ex-
ecutory devise over.—.Jones v. Ryan, 91. E. R.
249. (C.)

7. V., seized in fee of, among others, the
lands of M., devised, in 1801, M. to his daugh-
576

ter Martha, for life; remainder to her first and
other sons in tail male; remainder to his
daughters, as tenants in common in tail ge-
neral; with a series of successive remainders
to several persons in tail, and an ultimate
remainder to D. in fee. In a subsequent part
of the will, A. devised M., together with other
lands, “unto my said daughter Martha, and
the heirs of her body lawfully begotten, and
for default of such heirs, to the use of all
other the heir and heirs herein named, and
for the uses mentioned, for ever.” Held, that
the two sets of limitations of M. were not
irreconcilable; that Martha took an estate in
tail general in remainder, after the estate
devised to her daughters as tenants in com-
mon in tail, and before all the estates and
uses limited to other “heirs” or devisees,
according to the ultimate disposition of the
will.-In re Frew’s Estate, 7 1. C. R. 95. (1.E.C.)

When good.

1. A marriage settlement vested freehold
leases in trustees, to hold to the use of A.
and his heirs and assigns, from the perfection
of the settlement, for his natural life, without
impeachment of waste, with a power to lease ;
remainder to the trustees, to preserve, &c., and
from the decease of A. to secure a jointure of
£80 to B. (A.’s wife). A. covenanted to charge
the jointure on after-acquired estate, with
power of distress; and that the lands, after the
decease of the survivor of A. and B., if there was
but one child of the marriage, should go to the
use of such only child, and the heirs of his or

her body lawfully issuing ; and if more than one’

such child, to such children in such shares and
proportions as A. should by deed or will ap-
point; in default of such appointment, to the
use of all the children, as tenants in common,
share and share alike. Held, that the words,
“and his heirs” should be rejected, and that
A. took a life estate. That the clause begin-
ning “and further” is a limitation in con-
tinuation of, arid direct sequence upon, the
limitations to trustees to preserve.

Semble—That if that clause be a covenant to
settle after-acquired property on the children,
a Court of Equity would not mould the trusts
in any manner, as they are fully declared.

Semble— That, assuming it to be such a
covenant, after-acquired property, settled irre-
spective of such covenant, by A. on a child,
must be brought into hotchpot.—Jn re Ham-
mersly, 111. C. R. 229. (L.E.C.)—[Affd.: 12
I. C. R. 319; 61. Jur. N.S. 328. (C.A.)]

2. In 1823, V. devised all his real estates to
H., with remainder to his sons in strict settle-
ment; and ‘in default of such issue male in
H., then to the use of my nieces, R. and F.,
and the survivor of them, for the term of their
natural lives, as tenants in common, and not
as joint tenants, and from and after their
decease to the use of their first and every
other son and sons lawfully begotten on their
bodies, and the heirs male of their respective
bodies successively, in equal proportions ; the
elder of such sons of each of my said nieces,
and the heirs male of their bodies being always
preferred, and to take before the younger and
the heirs male of their bodies ; and for default

[LIMITATIONS OVER.}

 

Too remote.

of such issue male, then to the daughters of
said J., R., and B.; and for default of such
issue, male or female, to the use of my right
heirs male for ever.” Held, that R. and F,
took, as tenants in common for life, with re-
mainder as to the share of each to her sons in
tail, with immediate remainders to her daugh-
ters in tail.—Conmee v. Taaffe, 12 I. C. R. 338 ;
91. Jur. N.S. 232. (C.) — [Revd.: 10 H. L.
Cas. 64.]

3. V., owner in fee, by will, in 1836, left his
third son, J., the lands of G. for ever; “ but,
in case he should die unmarried, or without
lawful issue, in that case he may will one-half
of it as he pleases; and the other half to go
share and share alike between my surviving
sons or their families.” The will ended in these
words :—“ All the bequests given to my son
R., my grandson M., son to my son J., and
also my other three sons, T., C., and H., of my
property, no part of it shall or will be liable,
or pay any debts they may contract; nor sell
or mortgage same; but always go in the male
line free of any debt of theirs.” T. died with-
out issue, having executed a disentailing deed
of the lands of G., and devised them to B. and
his heirs. Held, that T. took an estate tail
under V.’s will. — In re Thompson’s Estate, 14
IC. R.517; 9 T. Jur. N.S. 193. (L.E.C.)—
(Affd.: 161. C.R. 228. (C.)]

4. Devise, in 1819, in trust for the testator’s
mother for life, then to his brother (A.), and
his assigns for life; then to permit such one
child of (A.), and the heirs of his or her
body, to receive the rents as (A.) should by
deed or will appoint to; in default of ap-
pointment to go to A.’s eldest son and the
heirs of his body; and, if no son, to and
amongst <A.’s daughters, and the heirs of
their bodies, share and share alike; and, in
default of such issue, in trust for B., C., and
D., successively for their lives; with similar
remainders to them respectively as to <A.’s
sons and daughters; remainder over in fee,
and a residuary devise to A., who by will ap-
pointed to his eldest son, who died in A.’s
lifetime, and without issue. Held, that A.
took an estate tail in remainder after the
estate devised to his eldest son in default of
appointment.

That the words “in case there shall be a
son” did not give an estate by implication
to A.’s other sons.—Bell v. B., 15 I. C. R. 517.
(R.)

5. By executory articles for value, it was
agreed between the settlor, his wife, and their
sons, that his estates should, after his death
be limited to, and settled upon his eldest son,
and that son’s issue; with remainder, in the
event of that son’s dying without lawful issue
in the settlor’s lifetime, to each of the set-
tlor’s other sons in succession, according to
seniority, with an ultimate remainder to the
settlor’s right heirs. The settlor’s eldest son
survived him, and had issue. In a suit to
carry the articles into execution—Held, that
the eldest son was entitled to an estate tail
in possession, with remainder to him in fee.—
Dillon v. Blake, 161. C. R. 24. (C.)
Conditional.

1. V., seized of lands under leases for lives
renewable for ever, devised, in 1824, all his
freehold leases and interest whatsoever, to
trustees, and the heirs of their survivor, in
trust, after payment of the head rents, to
apply the clear yearly rents amongst his three
daughters, during their respective lives, in
equal shares, for their separate use; and if
any or either of them died leaving lawful
issue, then in trust, as to her share, for the
use of such issue as she should by deed or will
appoint; in default of such appointment, to
the use of such issue equally, share and share
alike. He directed that if any of his daugh-
ters died without issue, her share should go
to the survivor or survivors of them, for the
increase of her and their respective shares, to
their separate use, and to go to their lawful
issue, subject to the like power of appoint-
ment amongst them ; if all his daughters died
without leaving lawful issue, then in trust to
pay the rents to his nephew during his life,
and after the nephew’s death, if he left lawful
issue, in trust, as to one-half of the freehold
and leasehold interests, to the use of such
issue as he should appoint; in default of ap-
pointment, equally; and, as to the remaining
half, to the use of his sister’s children, in
equal shares, and to their lawful issue; and,
if his nephew died without issue, then, as to
the whole of his freehold and leasehold in-
terests, to the use of his sister’s children, in
equal shares, and to their lawful issue; and,
if they should be then dead, then, as to the
whole, in trust for the issue of his nephew;
and, in case of the deaths of his nephew and
the children of his sister without issue, in
trust to assign over the freehold and leasehold
interests to his own right heirs. The trustees
were given a power to lease from time to time,
as they should remain seized and possessed
by virtue of the trusts contained in the will,
with the consent of the person or persons
then entitled. Held, that the legal estate was
devised to the trustees during the existence
of the entire series of limitations, and that
Vs daughters took equitable estates in quasi
tail in their respective shares.—Sherwin v.
Kenny, 16 I. C. R. 188. (R.)

II. Conprriona & ContiIncEentT LimivaTIons.

2. An estate was settled by deed upon A.,
B., and C. for life, as tenants in common;
remainder to their first and other sons re-
spectively in tail male; remainder to their
daughters respectively as tenants in common
in tail ; remainder, “in case one or two of the
said A., B., and C. should die without issue of
her or their bodies, then as to the share of
such one or two dying without issue, to the
use of all and every the daughters of such
survivors, as tenants in common in tail.”
Held, that the limitation to the daughters or
the survivor was a good contingent remain-
der.—Cole v. Sewell, 2 Con. & L. 344.; 4 Dr.
& War.1; 61.E.R.66. (C.)—[See Stackpoole
y. S61. E.R. 18; 2 Con. & L. 489. (C.)]

3. V., in 1825, devised the lands of A. to
his son S., during his natural life, sans waste ;

[LIMITATIONS]

 

Contingent. 577

remainder to trustees to preserve, &c.: and
from and after the decease of S., to the use of
the heirs male of S., in such shares and pro-
portions, and subject to such charges as. S.
should by deed or will appoint; and if 8S.
died without issue male, to permit his second
son, J., to receive the rents for his life, sans
waste ; remainder to trustees to preserve, &c. ;
and from and after the decease of J., to the
use of the male children of J., in the same
manner and with the like power of appoint-
ment, and charging, as he had thereinbefore
devised the same, to the male children of S$. ;
with remainders over, inthe same terms, to V.’s
third son, T.; remainder to his male children,
remainder to his own right heirs. V. then
devised the lands of B. to his son J. for life,
with remainder to his male children as he
should appoint; and in default of appoint-
ment, to the first son of J., and the heirs male
of his body ; remainder in like manner to the
second, third, and every other son of J.; and if
J. died without issue male, to 8.; to be dis-
posed of among his issue as he should think
proper; and he directed that if S. should die
without issue male, and that in consequence
thereof the lands of A. should descend to his
second son J. and his issue male, then the
lands of B. should immediately descend and
go to T. and his issue male; and he gave
powers of leasing to §., J., and T., as they
should respectively become seized of the said
estates. Held, that S. took an estate tail in
A.—Phillips v. P., 10 I. E. R. 513. (R.)

4. Devise, in 1832, to testator’s son, A., and
to his issue, male and female, in such shares,
manner, and proportions as he might by deed
or will appoint, with power to jointure a wife;
and if A. died without lawful issue, then to
testator’s three daughters equally, share and
share alike, as tenants in common, and not as
joint tenants, and to their heirs and assigns.
Held, that A. took an estate tail— Whitsitt v.
Thompson, 121. E. R.119. (C.)

5. Lands were limited to the use of one for
life, remainder to the use of his eldest son,
and the heirs male of such eldest son, the
elder tobe always preferred before the younger;
in case of failure of issue male of the eldest
son, remainder over. Semble—The eldest son
took an estate tail— Smith v. S., 5 1. C. R. 88.
(R.)

6. Devise, in 1821, of lands, in trust for A.,
a reputed son, for life, and, after his decease,
for and to the first and every other son of
A. successively in tail male; in default of
such issue, to the daughter or daughters
of A., to hold to them, if more than one,
and their heirs as tenants in common; in
default of issue of A., to and for testator’s
heirs. Held, that A. took only an estate
for life, and that no remainder in tail to
him could be implied after the limitation
to the daughters. — Tucker v. Baker, 11 I. E.
R. 104. (C.)— [Affd., 3 H. L. Cas. 106; 14
Jur. 771.]

7. S., owner of an estate for lives renew-
able for ever, after devising freehold proper-

13
578

ties to his two sons, in terms sufficient to vest
the absolute interest in them, “devised and
bequeathed their respective shares or moie-
ties of the said premises to their respective
children lawfully begotten, male and female,
in such shares and proportions as they may
respectively, by will or deed duly executed,
limit and appoint their respective moieties ;
and, if either of my said sons should die
without lawful issue, born or unborn, I then
will and devise the moiety or share of him
so dying to the survivor, on the happening of
such event; I then will and devise the same
to the children of the survivor lawfully be-
gotten.” Held, that the sons did not take
an absolute estate, or an estate in quasi tail in
the premises, subject to the above limitations,
but only an estate for life. — In re Campbell's
Estate, 51. Jur. N. 8.414. (L.E.C.)

1. V., by codicil, in 1821, devised fee-simple
lands to C., “and to her five children, A., §.,
D., J., and M., share and share alike during
their lives, or the life of the survivor, or long-
est liver of them... . and if it happen that
any of the said persons should die unmarried
and without any lawful-issue, it is my will that
the portion of such person should go to and
amongst the survivors of them; and it is my
will that the said C. and her said children
should have, hold, and enjoy the said lands
and premises as before mentioned for the
natural life or lives of them, or the survivor
or longest liver of them.” These five children
were V.’s illegitimate offspring by C. Held,
affirming the decision of a Judge of the L. E.
Court, that C. and her five children took
merely a life estate with cross-remainders
among them, not an estate tail—Zn re Nesbitt’s
Estate, 111. Jur. N.S. 349. (C.A.)

 

LIMITATIONS, STATUTE OF.

[10 Car. 1, sess. 2, c. 6,5. 14; 8 G. 1, ¢. 4, 58.
1,2,5;3.&4 W.4,¢.27;3&4 Vic. c. 105,8. 32;
7& 8 Vic., c. 10, s. 39. The foregoing Acts,
so far as relates to personal actions, consoli-
dated and amended by 16 & 17 Vic., c. 113, ss.
20 to 29; Mercantile Law Amendment Act,
19 & 20 Vie., ¢. 97, s. 18.]

See Lacurs—Leneotu or Timn—Preapinc,
ANSWER, 12—Pieapine, Piea, 10.
I. In GenpraL—its Construction.
Il. As ArpricaBLe to Dexts, Accounts,
AND PEcuNnrIARY TRANSACTIONS.
Ill. As AppiicaBLE To INTERESTS IN aND
CuarcGEs on Property, Lecactzs, &c.
IV. As AppricaBLeE ™% Trusts, Breacnes
or Trust, anD Fraup.
V. How 17s OPERATION [Ss PREVENTED OR DE-
LAYED, OR ITS ADVANTAGES OBTAINED.
VI. ApvERSE TITLE anD: Possxssion.

 

I. In Genprat—its Construction.

2. A settlement made by a banker on his
son’s marriage, and purporting to provide for
the issue of the marriage, is within the 33 G.
2,c. 14, s. 3 (the Bankers Act). The limita-
tions in favour of such unborn children are
oe v. Delacour, 1 Dr. & Wal. 591.

 

[STATUTE OF LIMITATIONS. ]

8. The 3 & 4 W. 4, c. 27, s. 40, applies to
personal as well as to real estate.—O’ Hara v.
Creagh, 31.E.R.179; L. & T. 65. (E.E.)

4. The 3 & 4 W. 4, c. 27, is retrospective
in its operation, so as to give effect to an ac-
knowledgment given before the passing there-
of, which would have been inoperative to
prevent the bar of 8 G. 1, ¢. 4.—Vincent v.
Willington, L. & T. 469. (E.E.) ,

5. The Statute of Limitations is not plead-
able to a sci. fa. on a receiver's recognizance,

A recognizance to the Crown is not within
the 8 G. 1, ¢. 4.

The period from which the 20 years speci-
fied in that statute are to be reckoned is the
issuing of the writ, not the day upon which it
bears teste——Reg. v. Bayly, 4 1. E.R. 142; 1
Dr. & War. 213. (C.)

6. Debts secured by judgments are sums of
money charged upon or payable out of land
within the 3& 4 W. 4, ¢. 27, s. 42, and only
six years’ arrears of interest upon them can
be recovered. In relation to the Statutes
of Limitations, judgment creditors’ rights for
arrears of interest, as against the debtor's
real and personal estates, are equal and co-
extensive. So far as'the statute’s bar operates
to protect real estates, to that extent the per-
sonalty is also protected.

The 38 & 4 Vic., c. 105, s. 26, enacts that
every judgment debt due upon any judgment
not recovered or confessed for any penal sum
for securing principal and interest shall carry
interest, &c. This interest is subject to the
limitations of the 3 & 4 W. 4, c. 27, 8.42.

Semble—The interest on judgments under
the 8 & 4 Vic., c. 105, s. 28, is within the limi-
tations in the 3&4 W. 4, c. 27, s. 42.— Henry
vy. Smith, 4 I. E. R.502; 2 Dr. & War. 381; 1
Con. & L. 506. (C.)

7. A return made by an insolvent in his
schedule is an acknowledgment sufticient
within the 3 & 4 W.4, c. 27.Barrett v. Ber-
mingham, 41. E.R. 5387; FL & K.566. (R.)

8. V., by will, in 1812, devised a rentcharge
as a salary for a schoolmaster to be appointed
by the owner for the time being of the estate
upon which it was charged. No schoolmaster
was ever appointed. Held, that the Statute of
Limitations could not commence to run until
the appointment of a schoolmaster.—Aitt.- Gen.
vy. Persse, 2 Dr. & War. 67. (C.)

9. Semble—The3 & 4W. 4, c. 27, s. 42, applies
to cases of money charged upon land, whether
there be a covenant for payment or not; and
the 3 & 4 Vic., c. 105, s. 82, applies to cases of
covenant to pay money not charged upon
land.—Hughes v. Kelly, 2 Con & L. 2238; 3 Dr.
& War. 482; 51. E.R. 286. (C.)

10. The effect of the 3 & 4 W. 4, c. 27, is,
subject. to the exceptions therein contained,
to confer an absolute legal title to the person
who has had an uninterrupted possession for
twenty years.— Scott vy. Nixon, 2 Con & L. 185;
61 E.R.8. (C.)
[STATUTE OF

1. The prior incumbrance referred to in
the exception in the 3 & 4 W. 4, e. 27, s. 42,
is one which affects the stock or interest upon
which the subsequent incumbrance is also a
charge.— Vincent v. Going, 71. E.R. 463; 1
Jon. & L. 697. (C.)

2. On a reference to enquire what sum was
due for principal, interest, and costs, on foot
of a judgment, for which a receiver has been
appointed, the respt. is entitled to the benefit
of the Statute of Limitations (though not set
up), in showing cause against the receiver’s
appointment. The petr. is only entitled to
six years’ interest from the date of the condi-
tional order appointing the receiver.—Dowell
v. Burke, 9 I. Hi. BR. 83. (C.)

3. When a demurrer was allowed under the
64th G. O. (1843), the Court refused to permit
the record to be amended for the purpose of
saving the Statute of Limitations by restoring
to it the defendant against whom the bill was
dismissed.

The Court, in a proper case, would permit
a bill dismissed as against certain defendants
to be restored, when they could derive no ad-
vantage from having a new engrossment ; but
this course will not be adopted when a new
defence has arisen since the filing of the origi-
nal bill—Sherlock v. Disney, 11. Jur.195. (R.)

4. A judgment creditor revived against the
heir of the conuzor, but not against his execu-
tor. After an allocation order in,a suit to
administer the conuzor’s estate, the judgment
creditor obtained leave to come in and prove.
The fund in Court was out of the personal
estate. Held, that the Master was precluded
from entéktaining the question, as to whether
the judgment was barred by the Statute of
Limitations, as that question should have been
raised on the application for liberty to prove.—
Hutchins v. O’ Sullivan, 1 1. Sur. 325. (C.)

5, Arespondent, in a cause petition referred
under the Court of Ch. (/r.) Reg. Act 1850, s.
15, cannot have the benefit of the Statute of
Limitations; 3 & 4 W. 4, c. 27, s. 42, unless
he expressly relies on it by his discharge.—
Carey v. Doyne, 5 I.C. R. 104. (R.)

6. J., being seized of an undivided one-
seventh of the lands of S., in 1826, by a will
made just before his death, and pursuant to a
covenant in his marriage settlement, devised
all his interest in S., upon trust to pay his
widow two annuities for life, and subject
thereto to permit W. to receive the rents, &c.,
during life; remainder to his heirs for ever;
first paying the head rents and annuities. In
1839 W. made aw lease, at a nominal rent, to
tenants then in possession of 42 acres of S.
The L. E. Court ordered S. to be sold, where-
upon the tenants were stated to be merely
tenants from year to year, The tenants, ob-
jecting, insisted that S. should be sold subject
to the lease; and relied on the Statute of
Limitations, s. 25. The Judge of L. E. Court
allowed that objection. On appeal,—Held, that

LIMITATIONS. ] 579

S. should be sold discharged of the lease.—In
re Shortt’s Estate, 111. Jur. N. 8. 352. (C.A.)

 

II. Srature or Limitations AS APPLICABLE
to Depts, Accounts, AND PECUNIARY
TRANSACTIONS.

7. A creditor’s suit was commenced before
the 3&4 W. 4, c. 27, passed. Held, that the
claim of a judgment creditor, who subsequently
came in and proved his debt in due course,
under the decree, remained unaffected by that
statute.

Secus—Had it been necessary to make to
the Court, for liberty to prove the debt, a
special application grounded upon a denial of
the creditor’s knowledge of the existence of
the suit.

If the frame and prayer of a bill be essen-
tially those of a creditor’s bill, the omission of
the usual introductory statement, that it was
filed on behalf of the plaintiff and of the other
creditors who should come in and contribute,
&c., is immaterial, being merely matter of
form.

A creditor coming in under a decree cannot
rely upon awillas creating a trust in his favour,
unless it has been put in issue sufficiently for
that purpose by the pleadings, or by the charge
or discharge.—O’Kelly v. Bodkin, 2 I. E. R.
361. (E.E.)

8. Semble—That the 3 & 4 W.4,c. 27, is a simi-
lar bar to the recovery of interest thereon by a
proceeding against the person or personal
chattels of the debtor.—O’Kelly v. Bodkin, 3
I. E. R. 390. (B.E.)—[See Blunden v. Desart,
5LE. R57. (®.); 5 1 E.R. 221; 2 Dr &
War. 405. (C.); and followed in Hutchins v.
Sullivan, 11 I. E.R. 443. (R.)]

9. Semble—If a bill were filed as an illusory
proceeding, to evade the provisions of the
Statute of Limitations, the Court might, on a
proper application, order it to be taken off the
file—Boyd v. Higginson, 5 1. HE. R. 97. (R.)

10. F. owed C. £800, to secure which F., in
1814, granted C. an annuity of £100, issuable
out of tHe lands of D., which F. held under a
lease from ©.; Aabendum until thereby the
£800 and interest should have been paid. F.
covenanted to pay the annuity.

In 1815, C. assigned to H. the balance due
of the £800, together with the annuity; and
covenanted that the annuity should be regu-
larly paid.

C., being entitled to £2000 charged upon
lands of which he was tenant for life, asa
further security assigned £800, part of the
£2000, upon trust, if the annuity should be
unpaid for 41 days, to call in, from time to
time, and receive such parts of the £2000 as
should suffice to satisfy the arrears, and apply
the same in payment thereof: after such pay-
ment, in trust for C.

In 1816, the annuity was unpaid for more
than 41 days; but, up to Oct. 1821, payments
on foot of it were made.

In 1820, C. evicted D. for non-payment of

 

rent, and died in 1824.
580

In a suit instituted in 1839, an account of
the incumbrances affecting the lands charged
with the £2000 was decreed. The Master re-
ported that the principal which, in 1821, had
been due on foot of the sum, to secure which
C. had assigned the £800, was still due; and
that the residue of the £2000 was due to the
personal representative of C. He excepted to
this report. Held, that the demand of H. was
not barred by the 3 & 4 W. 4, v. 27, s. 40.

The trust created by the deed of 1815 isa
continuing trust, not a trust to be executed
once for all; and that a present right to re-
ceive the £800 did not, within the 3 & 4 W. 4,
c. 27, s. 40, accrue upon the non-payment of
the annuity for 41 days.

If one, entitled to money charged on land,
assigns it in trust to secure the payment of a
debt, and then in trust for himself, he cannot
insist, as against his creditor, that the Statute
of Limitations bars the trust.—Heenan v. Berry,
2 Jon. & L. 303. (C.)

1. A sci. fa. on a judgment is not a mere
continuation of a former suit, but creates a
new right.

In 1813, a judgment was obtained. In 1828,
it was revived by sc. fa. In 1838, a bill was
filed in the Court of Exch. in Ir. against the
debtor’s representatives. It prayed an account,
and that the principal and interest due on the
judgment might be satisfied out of the debtor’s
personal or real estate. To this bill was filed
a plea of the 3&4 W.4,c. 27,s.40. Held,
that the sci. fa. had created new rights, and
that the plea did not bar the suit.—Farrell v.
Gleeson, 11 Cl. & F. 702.—[Revg. the decree
below ; not reported.]

2. The Statute of Limitations is a good de-
fence on general demurrer. A devastavit by
an administrator only creates a simple contract
debt to the next-of-kin.

The right of simple contract creditors to
proceed against real estates, devised by the
debtor under the Statute 3&4 W. 4, ce. 100,
is barred by the Statute of Limitations, in six
years from the death of the debtor—Dunnev.
Doran, 131. E. R. 545. (E.E.)

8. Simple contract creditors, who have, in
consequence of the payment of specialty cre-
ditors out of the personal estate of the deceased
debtor, acquired a right of marshalling his real
estate, are not barred, under the Statute of
Limitations, by the lapse of less than twenty
years.— Ellard v. Cooper, 1 I. C. R. 876. (C.)

4, In 1811 T. executed a bond, in which his
heirs were not bound, and on which he paid
interest until his death in 1820. T. made his
will, by which he left all his property to W.,
and directed that all his just debts, legacies,
and funeral expenses, should be paid by W.,
whom he appointed executor. W. proved the
will; and aliened the lands in 1821. He how-
ever paid interest on the bond until he died in
1843. The parties claiming under the deed of
1821 paid interest up to 1849, under a mistake
of their liability. A cause petition was filed
in 1853, to recover the amount of the bond.

 

(STATUTE OF LIMITATIONS.]

Held—(following Dunne vy. Doran, 13 1. E. R.
546, by which the Court considered itself
bound, although dissenting therefrom)—that
the claim against W., being founded on a de-
vastavit, was a simple contract, and as such
barred by the Statute of Limitations, 10 Car.
I, sess. 2, c. 6, 8. 3, Zr.

Semble—The debt was not founded on a
lending or contract, and therefore not within
the statute.

The payment of interest by the parties
claiming under the deed of 1821 was not bind-
ing on the executor of W.—Brereton v. Hutch-
inson, 2 I. C. R. 648. (R.)

5. The liability of a separate estate of a
married woman, for what would be a simple
contract debt in the case of a person sui juris,
is not barred by the lapse of six years from
the accruer of the cause of action.—(Dissen-
tiente the Lord Justice of Appeal.)— Vaughan
v. Walker, 81. C. R. 458; 3 1. Jur. N.S. 208.
(C.A.)—[Affg. 6 I. C. R. 471; 21. Jur. N.S.
401. (C.)]}

 

IU. As AppiicaBLe To CHARGES ON Pro-
perty, Lecacrss, &e.

6. A., on his son’s marriage, conveyed an
equity of redemption on trust for the sepa-
rate use of the son’s wife ; afterwards bought
the outstanding mortgage; brought an eject-
ment, and went into possession as mortgagee.
The son, having separated from his wife, en-
tered, after A.’s death, as heir-at-law; 20
years having elapsed. Held, that he could
not set up the Statute of Limitations against
his wife’s separate use.— Booth v. Purser, 1 I.
E. R. 48. (C.)

7. A widow filed a bill to raise arrears of
jointure charged upon lands by settlement.
Deft.’s answer denied the husband’s power to
jointure, since he had, at the date of the set-
tlement, only an estate tail, which had not
subsequently been barred. An amended Dill
was filed, praying for dower, if the Court con-
sidered ptf. not entitled to jointure. Deft.
neither answered this bill, nor appeared at
the hearing. The Court decreed ptf. entitled
to dower, and directed an account of the
arrears. Held, that the amended bill was a
continuation of the original suit; and that,
in taking the account, deft. could not set up
in the office the 3 & 4 W. 4, c. 27, s. 40, limit-
ing the recovery of arrears of dower to six
years, though the amended bill was not filed
till after the Act came into operation, the
original bill having been filed before that
time.— Smith v. Walsh, 1 I. E. R. 167. (E.E.)

8. A., under his father’s marriage settle-
ment of 1793, was entitled to a younger
child’s portion. In 1825, A. filed a bill to
raise it, and prayed an account of all prior
incumbrances, the inheritrix having set up
prior articles of 1765 executed upon the mar-
riage of ptf.’s father’s eldest brother, which
had been duly registered in 1767. Held, that
the charge under the articles of 1765 was not
affected by the 3 & 4 W. 4, c. 27, that statute
[STATUTE OF LIMITATIONS.]

not being retrospective; and that the account
of interest on foot of this charge should be
confined to the filing of the bill—Peyton v.
M‘Dermott, 1 Dr. & Wal. 198. (C.)

1. A mortgagee, who had not for upwards
of 20 years been in possession of the rents of
the mortgaged premises, nor received such an
acknowledgment as the 3 & 4 W. 4, c. 27, re-
quires, nor had even known his rights till
informed thereof by a puisne creditor, was
brought before the Court by that creditor by
an amendment, made in 1837, to a supple-
mental bill filed in 1833, to complete title to
a purchaser, so as to have distributed among
the creditors of the estate certain funds, im-
pounded to indemnify the purchaser against
an outstanding and apparently unsatisfied
charge whereof the mortgage formed a moiety.
Held, that the mortgagee’s claim was not
barred by the 3 & 4 W. 4, c. 27.—Murphy v.
Sterne, 1 Dr. & Wal. 236. (C.)

2. In 18138, A. obtained judgment against
B., and died in 1824. His executors revived
the judgment. In 1833, B. died, leaving C.
his heir-at-law. InH. T. 1836, the judgment
was re-revived. It did not appear that for 20
years before the last revival any payment or
acknowledgment on foot of the judgment had
been made within the express terms of the
3&4 W. 4, c. 27,5. 40. Held, that the judg-
ment of revivor in 1836 was conclusive; and
that the period of limitation should be rec-
koned, not from the original judgment, but
from the last revival.

A judgment is not a sum of money charged
on or payable out of land, within the 3& 4 W.
4, c. 27, s. 42. An application, therefore, to
discharge an order for a receiver under the
4&5 W.4,c. 55, upon payment of the prin-
cipal due on the judgment, with six years’
interest, was ‘refused.—Kealy v. Bodkin, 8. &
Sc. 211. (R.)

3. The 3& 4 W. 4, c. 27, begins’to run
against a judgment only from the date of the
last revival.— Ottiwell v. Farran, 8. & Sc. 218,
note. (Q.B.)

4. A,, entitled to a mortgage on lands vested
in a trustee for him, agreed that a subsequent
annuity creditor should have precedence over
his debt; and joined in demising the lands to
a trustee for the annuitant. A.’s trustee, hav-
ing the legal estate, did not join. A. remained
in possession until the grantor of the annuity
died. Held, that the annuitant was not de-
barred from recovering more than six years’
arrears, but came strictly within the exception
in the 3 & 4 W. 4, c. 27, s. 42.—Drought v.
Jones, 21. E. R. 303. (C.)

5. Notwithstanding the 3 & 4 W. 4, c. 27,8.
40, the revival by scz. fa. of a judgment within
20 years suffices to enable a party to proceed,
at Law or in Equity, to recover the sum

. thereby secured, though more than 20 years |

have elapsed since the rendition of the ori-
ginal judgment.—Ryan v. Cambie, 2 1. E. R.
328. (H.E.)

 

581

6. By marriage settlement of 1798 lands
were settled on trust to the use of A., the
husband, and B., the wife, and the survivor of
them, for their respective lives; remainder to
the issue of the marriage ; and also to C. (B.’s
daughter by a former marriage), in such shares
as the survivor of A. and B. should appoint.
In 1819, A., being the survivor, appointed a
sum to C., and limited part of the lands to
trustees to receive and levy, by sale or mort-
gage, that sum; and directed that it should
bear interest, and be payable on C.’s marriage ;
with a proviso that, if C. married during A.’s
life, the principal should not be raised until
twelve months after A.’s death. After A.’s
death, C. and her husband filed a bill against
a son of A. and B., who had got into and con-
tinued in possession of the lands since 1825,
and disputed the validity of the settlement of
1798. Held, that ptfs. were within the 3 & 4
W. 4, c. 27, s. 42; and therefore entitled only
to six years’ arrears of interest on their charge.
Burne y. Robinson, 1 Dr. & Wal. 688. (C.)

7. When children claim as remaindermen
under articles, time does not commence to
run against their right under the articles, in
favour of a purchaser, until the death of the
tenant for life—Thompson y. Simpson, 1 Dr. &
War. 489. (C.)

8. In 1790, N. entered into possession of
lands as assignee of mortgagees, and purchaser
from A., B., C., and D., tenants for life of one-
fourth each. A. died in 1819, and B. in 1836.
The next remaindermen of their shares, te-
nants in tail thereof, filed against N.’s devi-
sees a bill to redeem the premises. Held, that
ptf.’s were within the terms of, and bound by
the 3&4 W. 4, c.27, s. 28; and that the pro-
visions of that section are wholly independent
of those of sec. 15, which relates to the title
to the lands so affected by the provisions of
the preceding section, the former exclusively
to mortgagees.—Browne v. The Bishop of Cork,
1 Dr. & Wal. 700. (C.)

9. Upon the true construction of the 3 & 4
W. 4, c. 27, s. 42, more than six years’ interest
cannot be charged upon land in respect of
money secured by judgment.—O’Kelly v. Bod-
kin, 21. E. R. 361. (E.E.)

10. The 3&4 W.4, c. 27, s. 40, applies to
personal as well as to real estate ——O’Hara v.
Creagh, L. & T. 65.3; I. E. R. 179. (E.E.)

11. A creditor, by judgment of H. Term
1813, filed a bill in 1837, against the heir and
personal representative of the conuzor, for
payment of the judgment. The heir, who
was the personal representative of the conu-
zor, by his answer relied on the3 & 4 W. 4,
c. 27, 8.40. The judgment had not been re-
vived, nor was any payment on account of the
principal or interest made, or any acknow-
ledgment in writing of the right of the plain-
tiff thereto given, by the conuzor or his real
or personal representative, subsequent to its
rendition. Held, that the bill should be dis-
582 [STATUTE OF

missed with costs.— O'Hara v. Creagh, 3 I. E.
R.179. (EE)

1. When a judgment has been obtained
upon a bond, in a penalty conditioned for the
payment of principal with interest, the prin-
cipal is ‘‘a sum of money charged upon or
payable out of land or rent,” within the mean-
ing of the 3 & 4 W. 4, c. 27,» 42. That
statute bars the recovery of all arrears of in-
terest thereon, which have accrued due more
than six years next before the commencement
of a suit instituted after the 31st of Decem-
ber 1833, to enforce payment thereof out of
Jand or rent; the case not being within any
of the exceptions mentioned in the 42nd sec.
O’ Kelly v. Bodkin, 31. E. R. 390. (E.E.)

2. A debt secured by judgment was, even
before the passing of 3 & 4 Vic, c. 105, a
charge upon lands.—Rolleston v. Morton, 1
Con. & L. 252; 1 Dr. & War. 171; 41 E.R.
149. (C.)

3. T., by will, in 1773, after charging his
“unsettled real estate” with his debts and
legacies, gave the residue thereof to his wife,
J., for life; remainder to the Incorporated
Society for Promoting Protestant Charter
Schools in Ireland, and their sucessors for
ever. In 1774, T. died. In 1801, J., having
paid off the charge and legacies thrown upon
the unsettled estate, sold all her interest of
what kind soever therein to R. In 1811 J.
died. In 1820 and 1821 the society claimed
the estates from R., who in correspondence did
not admit that the society’s right to the estate
was free from doubt; always stated that he
was ready to account ; and that he had against
the estate no further claim than what would
appear due on foot thereof. In 1822 R. died,
and by will devised T.’s estate as his own,
amongst others, upon trust. Held, that the
possession of R. and his representative was
not “adverse” within the 3&4 W. 4, ¢. 27, s.
15, when it passed ; and that the Act must be
considered not to have operated, since the bill
was filed within five years; that the corres-
pondence contained a sufficient written ac-
knowledgment to bring the case within the
3&4 W. 4, ¢. 27, 8. 14.

The distinction between the old Statute of
Limitations and the 3 & 4 W. 4, c. 27, is, that
the former Acts only barred the remedy ;
whereas the real owner’s right and title are
extinguished by the latter, and transferred
to the person whose possession constitutes a
bar.

Cases of charity were not included in any of
the early Statutes of Limitations, nor were
charities bound by that analogy to those Acts
which equity applied in all other cases.

Semble—They were not included in the 3 &
4 W.4, c. 27, but appear to have been a casus
omissus. — Incorporated Society for Protestant
Schools vy. Richards, 4 I. E. RB. 177; 1 Dr. &
War. 258; 1 Con. & L. 58. (C.)

4. In 1770 the lands of X. were conveyed by
deed to V., his heirs and assigns, upon trust
for the owner, G., for life ; remainder to his

LIMITATIONS.]

son, H., his heirs and assigns. In 1771, upon
H.’s marriage with L., he covenanted to convey
X. (amongst others), within six months after
the marriage, upon trust that X. should go
and be vested in their issue, which should also
be entitled to a further sum of £1000 to be
charged on all other the real and personal
estates of H. not therein comprised, but in such
shares as H. should appoint by deed or will;
in default, as L., if she survived H., should by
deed or will appoint ; failing such direction, in
equal shares. In 1793, H. and L. levied fines
of X. in which F. was demandant. In 1794,
H. and Y.’s co-heirs again levied fines of X.,
in which also F. was demandant. In Hilary
Term 1794, recoveries were suffered of X., in
which F. was tenant to the precipe, and
H., and his eldest son, R., then of full age,
were both vouched. In April 1794, H. and F.
sold X. to 8. Afterwards R. died. In 1820,
H., having survived L., died; without appoint-
ing, leaving C. his eldest surviving son. In
1837, C. and H.’s other children filed their bill
praying an execution of the articles of 1771
as to X., and seeking to set aside the sale to S.
Held, that ptfs. were in time, and not bound
by any Statute of Limitations; and that the
3&4 W. 4, c. 27, s. 25, did not apply until the
time when the party, who seeks the remedy,
became entitled in possession.

Semble—Unless a man is a mere trustee on
express trusts, time will run from the con-
veyance. But when a party is entitled in
remainder he cannot be bound before the time
when his right to possession accrues.

A Court of Equity will not, at the end of 50
years, fix upon a purchaser a difficult con-
struction of an ambiguous instrument, which
it might have done as between the original
parties if there had not been a sale.— Thompson
y. Simpson, 1 Dr. & War. 459. (C.)

5. P., in 1812, devised a rentcharge as a
salary for a schoolmaster, to be appointed by
the owner for the time being of the estate
whereon the rent was charged. A school-
master was not appointed. In 1839, an infor-
mation was filed to carry the trusts into
execution. Held, that the statute could not
run until a schoolmaster was appointed.—
Att.-Gen. v. Persse, 2 Dr. & War. 69. (C.)

6. V. devised lands to the persons of the S
and C. families who should for the time being
be lord or lords, lady or ladies, of the manor
of D., and “if the said families should become
extinct” then over to a charity. After V.’s
death, the families sold the manor of D., but
did not become extinct in blood. Held, that
the event upon the happening of which the
estate was to go over was the extinction of
their blood, and not their ceasing to be lords

 

of the manor.— Commissioners of Charitable
Donations v. Baroness De Clifford, 1 Dr. & War.
245. (C.)

7. The grantor of an annuity, charged upon
lands, sold them, subject to payment of the
annuity. In a suit (to which the grantor was
not a party), by the annuitant to raise arrears
of the annuity—AHeld, that the Court would

 

not, to prevent circuity of action, prevent the
[STATUTE OF LIMITATIONS.] 583

purchaser from setting up the 3&4 W. 4, ¢.
27, s. 42, against the annuitant.—Kyme vy.
Dignan, 4 I. E. R. 562; 2 Dr. & War. 295; 1
Con. & L. 876. (C.)

1. Debts secured by judgment are “sums of
money charged upon or payable out of lands,”
within the meaning of the 42nd section of 3&
4 W. 4, c. 27.

Semble—Interest on judgments under 3 & 4
Vic., c. 105, ». 26, is within the limitations of
3&4 W.4, c. 27. 8. 42.—Henry v. Smith, 4 I.
E.R. 502; 2 Dr.& War. 381; 1 Con. & L. 506.
(C.)\—[See Blunden v. Desart, 5 I. E. R. 57,
(R.); ibid, 221; 2 Dr. & War, 405. (C.)]

2. A mortgage was executed in 1802. In
1812 the mortgagor, upon his marriage, settled
the equity of redemption upon himself for
life, remainder to trustees for a term of years,
to secure a jointure for his wife, and portions
for his younger children, remainder to his first
and other sons in tail. That settlement was
never registered. The mortgagee shortly after
its execution filed a bill of foreclosure against
the mortgagor alone, and obtained a decree
upon sequestration against him. The mort-
gagee’s representative revived the suit, and
in Sept. 1830 got a receiver appointed, who
received the rents of part of the mortgaged
lands. The mortgagor died in Feb. 1833, and
a bill of revivor was filed against his eldest
son, as heir, who allowed a decree on seques-
tration to pass against him, an account to be
taken under that decree, and a final decree to
be obtained without opposition. A condi-
tional order for an attachment was obtained
against him for not bringing in the title deeds,
and he filed an affidavit stating the settlement.
The mortgagee’s representative filed a supple-
mental bill against the widow and younger
children, in May 1838, to carry the decree into
execution. He/d—that the possession was not
adverse to the mortgagee when the 3 & 4 W.
4, c. 27, passed; that the 15th section of that
Act, taken in connexion with the subsequent
Act, 7 W.4 & 1 Vic., ¢. 28, 8.1, gave to the
mortgagee the right to file a bill of fore-
closure, within five years from the passing of
the first Act.

A bill of foreclosure is not a suit for the
recovery of money charged on land, within the
40th sec. of the 3 & 4 W. 4, v. 27; but it is
within the 24th sec.

The 24th sec. applies as well to mortgages
of the legal estate, as to those of the equitable
estate.

Semble-An adjudication of a Court of Equity
would save the right from being barred by the
statute, and the Court would restrain the party
from setting up the statute at Law.—Wrixon
yv. Vize, 5 I. E. R.173; 2 Dr. & War. 182; 2
Con. & L. 138. (C.)—LAffg. 4 1. E. R. 463;
2 Dr. & War. 192; 1 Con. & L. 298. (C.)]

3. When money is charged upon lands, no
more than six years’ arrears of interest can
be recovered, though there be a covenant for
the payment of the principal.

The 32nd sec. of the 8 & 4 Vic., c. 105, does
not repeal the 42nd sec. of the 3&4 W. 4, c.

 

27; the two are to be construed together.—
Hughes v. Kelly, 5 J. E. R. 286.; 3 Dr. & War.
482. (C.)

4. The saving in the 3 & 4 W. 4, cv. 27,
s.42, that the time during which the prior
creditor is in possession shall not count, does
not extend to give the claimant arrears of
interest or rent for six years preceding the
commencement of his possession. Its opera-
tion is—that, if the possession continues for
more than six years, interest or arrears of rent,
as the case may be, may be recovered for all
that time.—Montgomery v. Southwell, 3 Dr. &
War. 171 ; 2 Con. & L. 263., (C.)

5. A testator, after appointing settled estates
to his eldest son, gave all his other real and
personal estate, charged with his debts, to his
executors, in trust for his six younger sons ab-
solutely. After the date of his will, a freehold
estate was conveyed to him, and he died in
1791, without having republished his will,
leaving his eldest son of full age. After the
death of the testator, the younger sons entered
into the receipt of the rents of the subsequently
acquired property, and continued in such
receipt, without any adverse claim having been
made, until 1819, when the eldest son died,
leaving an infant heir. From 1819 no claim
was made on behalf of the infant, and the
younger sons continued in the uninterrupted
receipt of the rents. In 1839 the subsequently
acquired property was sold under a decree in
a suit instituted by a judgment creditor of the
testator, to which the infant heir of the eldest
son was a party. The heir of the eldest son
died after the lands were sold and after attain-
ing majority, and no bill of revivor was filed
against the next heir. The purchaser objected
to the title, on the ground that the title of
the testator’s heir was not shown to be ex-
tinguished, and that there was no person to
convey the legal estate. Held (reversing an
order of the M. R.), that a good title was made
out under the Statute of Limitations.

Held also—That it was no objection to the
title, that the facts constituting adverse pos-
session were proved by affidavits, and in the
absence of the heir.

The Statute of Limitations (3 & 4 W. 4, c.
27) transfers the estate, at the expiration of
the statutable period, from the rightful owner
to the person whose possession has barred his
right.

The circumstance that the property was in
lease when the adverse possession commenced,
and that an arrear of rent was allowed to ac-
cumulate for several years, does not prevent
the Statute from running.—Scott v. Nixon, 6
J. E. R. 8; 3 Dr. & War. 382. (C.)

6. A testator who had, under his marriage
settlement, a power of appointing by will or
deed, lands, held pur autre vie, to any of his
sons, for any estate not exceeding an estate
tail, by his will, reciting the power, devised the
lands to a trustee to the use of his third son
for life, remainder to the trustee during his
life, to preserve contingent remainders, re-
mainder to the first and other sons of that
584 [STATUTE OF

son in tail, and in default of such issue of his
third son, to his other sons successively for
life, with similar remainders to their first and
other sons in succession. The same testator,
by a codicil, directed that other lands included
in the settlement, which he had by his will
devised to his sixth son, should, on the hap-
pening of a particular event, namely, the
death of his eldest son without issue, belong
to the third son in tail. The third son, be-
fore the happening of the event on which he
was to take the additional lands, executed a
settlement by lease and release, upon his
marriage, by which, after reciting his title to
the lands devised to him, and that he was con-
tingently entitled to the lands devised to him
by the codicil, he settled all the lands upon
himself for life, remainder to the first and
other sons of the marriage in tail, and in de-
fault of such issue, settled the lands devised
by the will upon his brothers successively for
life, with successive remainders to their first
and other sons in tail. In the year (1816) fol-
lowing the execution of the settlement, the
event happened upon which the settlor be-
came entitled to the additional lands. He
did not get possession of them. The first
wife of the settlor died, leaving two sons ; and
in 1827, upon his second marriage, he execu-
ted articles by which he covenanted that he
would settle the reversion in all the lands ex-
pectant upon the death of his suns without
issue, upon the children of the second mar-
riage. The sons of the first marriage died with-
out issue, and a bill was filed by the children
of the second marriage, after the death of their
father, claiming all the lands under the articles.
The appointment by the will to the third son
was held to give him an estate tail, by the ap-
plication of the doctrine of cy-pres.

Held, that the limitations to collaterals in
the third son’s first marriage settlement were
voluntary and void against subsequent pur-
chasers.

Held, that the Court would enforce the sub-
sequent articles against the persons claiming
under those limitations.

Held also, that as to the additional lands,
the Statute of Limitations ran from the hap-
pening of the event upon which the title of
the third son accrued, and that all claiming
under the subsequent settlements were barred
at the expiration of the statutable period.

Held also, that the persons claiming under
the settlement of 1816 were not estopped by
it from denying the right of the settlor to the
additional lands.—Stackpoole vy. S., 61. E. R.
18. (C.)

1. When lands are devised, charged with
the payment of a legacy, the trust, although an
express one, is within the 3 & 4 W. 4, c. 27,s.
40, and not within sec. 25. The subject of the
two sections is different; the 25th relating to
lands and rent; the 40th to money charged
upon land.—Knoz v. Kelly, 61. E. R. 279. (R.)

2. The provision, 3 & 4 W. 4, c. 27, s. 42,
that the time during which a prior creditor is
in possession shall not count, does not operate
to give the claimant arrears of interest or rent

LIMITATIONS. ]

for six years previous to the commencement
of such creditor’s possession. The operation
of it is, that if such possession continues for
more than six years, arrears of interest or rent,
as the case may be, may be recovered for all
that time.

Semble—That even in a creditor’s suit the
time from which the six years are to be count-
ed back is the time of the creditor, not being
plaintiff, filing his charge—Montgomery v.
Southwell, 2 Con. & L. 263; 3 Dr. & War. 171.
(C.)\—[But see Henry v. Smith, 1 Con. & L.
506; 2 Dr. & War. 381. (C.)]

3. A being seized in fee-simple of four de-
nominations of land, over which B. had an
equitable charge in respect of an advance
made by him on a contract with A. to pur-
chase the land, which was subsequently broken
off on the occasion of his marriage, conveyed
two of the denominations to the uses of the
settlement, and the other two upon trust that
the trustees should, as soon as they should be
required in writing by A., raise, by sale or
mortgage thereof, sufficient to pay off the in-
cumbrances affecting the lands, as set out ina
schedule annexed thereto, with interest there-
on. B.’s incumbrance was in the schedule, but
he was no party tothe deed. Held, that he was
not ac. q. t. under this deed, so as to be entitled
to file a bill to carry the trusts into execution;
and that, therefore, the case was not within the
3 & 4W. 4, c. 27, s. 25 (even supposing that to
extend to the provisions of the 42nd), and that
B. was entitled only to six years’ interest.

Quere—Whether the 26th sec. creates an
exception out of the 42nd sec. of the 3 & 4 W.
4, c. 27.—Evans v. Bagwell, 2 Con. & L. 612;
4 Dr. & War. 398. (C.)

4, A judgment creditor having sued out a
sci. fa. in 1837, within six years after an
acknowledgment by his debtor in writing,
presented his petition for areceiver under the
Sheriffs Act, in 1839, after the expiration of
the six years. Held, that the suing out of the
sci. fa., and not the filing of the petition, was
the “suit or action” within the meaning of
the 3&4 W.4,c. 27,s.42. The proceeding
by receiver is an equitable execution substi-
tuted for a legal one, and therefore the credi-
tor has a right to recover to the same extent
and amount under the former as under the
latter.— Brady v. Fitzgibbon, 71. E. R. 2. (R.)

5. In 1810, a conveyance of lands was made
in trust for the plaintiff, among others. A
person under whom the defendants claimed
was then in possession of the whole of the
lands, being entitled to a fourth part of
them under a prior deed. There had been
various dealings with the estate which amount-
ed to an acknowledgment of the plaintaff’s
title down to 1819. But the defendants, or
those under whom they claimed, had been in
possession from 1810 down to the filing of the
bill in 1842. Held, that the plaintiff was
barred by the Statute of Limitations, 3 & 4
W. 4, ¢. 27, s. 2, and that his right was not
saved by its 25th sec.—Burroughs v. M‘Creight,

 

TIE. R. 49; 1 Jon. & 1.290. (C.)
[STATUTE OF LIMITATIONS.]

1, A suit was instituted in 1823, to recover
against the estate of a debtor who died in
1805. There was a decree, and the suit
was actively followed up until 1841. The bill
did not pray to have the assets marshalled,
and was not framed so as to have relief against
the real estate. A bill was filed in 1843,
framed so as to have relief against the real
estate, praying to have the assets marshalled
and the benefit of the former proceedings ;
the same person was both real and personal
representative. Held, that notwithstanding
the former suit, the relief against the real
estate was barred by time.—Busby v. Seymour,
71 E.R. 433; 1 Jon. & L. 527. (C.)

2. More than six years’ interest cannot be
recovered on a judgment affecting only a re-
version, on the ground of the lands having
been in possession of a prior incumbrancer,
when the possession of the prior incumbrancer
(whose charge over-rode both life estate and
inheritance) was during the continuance of the
previous life estate.

Judgment creditors’ made notice parties,
who put in an answer relying on a point which
might have dismissed the bill, but who after-
wards availed themselves of the decree, and
proved their demands under it—Hedd, entitled
only to such costs as they would have had
without answering.

Semble—A. bill by a judgment creditor, for
a sale in the lifetime of the conuzor, cannot
be sustained as against judgment creditors
whose judgments were before Nov. 1840.—
Vincent v. Going, 7 I. E. R. 463; 1 Jon. & L.
697. (C.)

8. Charities are bound by the Statute of
Limitations, 3 & 4 W. 4. ¢. 27.

A. devised his estate on trust to convey it
to W. and his sons, in strict settlement, subject
to and charged and chargeable with annuities
for charities, giving a joint leasing power to
the trustees, and a direction, applicable to
them, to pay the annuities. W. went into
possession, and continued so for nearly thirty
years after the annuities became payable,
without any payment being made on account
of them. He and his eldest son re-settled and
mortgaged the estate. No conveyance was
ever made by the trustees. Held, that the
legal estate being still in the trustee, there
was an express trust for the benefit of the
charities within the 25th sec. of the Act; and
also that, even if the case was to be considered
as if the trustees had conveyed, the charge
created an express trust within that section,
and therefore time was no bar.

The question when a charge creates an ex-
press trust considered.—The Commissioners of
Ch. Don. & Beg. v. Wybrants, 7 I, E. R. 580;
2 Jon. & L. 182. (C.)

4. A written acknowledgment to the credi-
tor by the owner of a freehold subject toa
judgment, will not deprive the owner of the
personal estate of the original debtor of the
benefit of the Statute of Limitations.—Boyd
vy. Belton, 8 I. E. R. 113; 1 Jon. & L, 730. (C.)

 

085

5. Plaintiff was entitled under her father’s
will, and an appointment by her mother, who
was his executrix. She being in embarrassed
circumstances, and without professional advice,
and ignorant of the amount of her claims, G.,
her solicitor, induced her in 1833 to convey to
him all her rights, which he represented to be
only half what they amounted to, for a rent-
charge on the lands so conveyed to him, the
payment to be personally secured by him.
The deed was drawn by G., and contained no
clause of re-entry or covenant by him to pay,
but a non-alienation clause was inserted frau-
dulently, as alleged. G. ceased to pay in 1836,
and the bill was filed in 1845, to set aside the
deed and carry the trusts of the will into exe-
cution, and for an account of the testator’s
property, so far as to ascertain plaintiff’s
rights, and, if necessary, of the personal estate
of her mother. B., the executor of the mother
and administrator de bonis non of the father,
was made a party, but the trustee of the
father’s will was not. [Held, on demurrer by G.,
that the length of time since the execution of
the deed, falling short of twenty years, could
not be set up by him on demurrer; that if
it could, the case was one of actual fraud,
and time would not bar; that there was no
misjoinder or multifariousness; if multifarious
as to B., G. could not raise the objection ;
that the surviving trustee was not a necessary
party.— O'Kelly v. Gilenny, 9 I. E. R. 25. (R.)

6. On a reference to enquire the sum due for
principal, interest, and costs on foot of a judg-
ment for which a receiver has been appointed,
the respondent is entitled to the benefit of the
Statute of Limitations, although not set upin
showing cause against the appointment of the
receiver; and the petitioner is entitled only
to interest for six years from the date of the
conditional order for the appointment of the
receiver.— Dowell v. Burke, 9 I. E. R. 83. (C.)

7. In 1804, F. instituted a suit to recover
damages for breach of covenant out of the real
and personal estate of B., the covenantor, and
obtained in 1820 a decree directing a refer-
ence, or an issue to ascertain the amount of
the damages. Instead of prosecuting that
decree, F. brought an action upon the covenant,
in 1822 obtained judgment, and shortly after-
wards died. In 1841 administration to his
goods was obtained, and his personal repre-
sentative filed a bill of revivor, without ob-
taining an order to revive. In the same year
he filed a charge on foot of his demand, under
an order of reference, made in 1841, in another
cause, instituted in 1796, to carry into execu-
tion the trusts of B.’s will. In that cause a
sum had been impounded to meet (amongst
others) F.’s claim; the reference being to as-
certain what were the charges affecting that
fund—Held, that the case was not within the
3&4 W.4,c. 27, and that B.’s demand was
not barred.—Bermingham v. Burke, 9 1. E. R.
86; 2 Jon. & L. 699. (C.)

8. The plaintiff claimed, under a renewable
lease cf 1782, lands then let under a prior
lease, subject to the same rent. The prior

74
586

lessees remained in possession till their lease
expired in 1839, paying the rent directly to
the head landlord. The lessee of 1782 neither
received or paid rent, but was served with an
ejectment begun by the landlord in 1833.

Semble—His rights were barred by the Sta-
tute of Limitations.—Drew v. Lord Norbury, 9
I.E. R. 171; 3 Jon. & L. 267. (C.)—[Affd.
on rehearing; 9 I. E. R. 524. (C.)]

1. An annuity, charged onland by will, comes
within the meaning of the word rent, in the 3 &
4 W.4,c. 27, s.42; and therefore no more than
six years’ arrears are recoverable. Whenon the
face of the bill the time which operates as a
statutable bar appears to have elapsed, the
Statute of Limitations may be relied on by
demurrer. —Ferguson v. Livingston, 9 I. E. R.
202. (R.)

2. Petition matters under the Judgment Act
should be revived before funds can be paid
out in them.

A judgment barred by statute 8 G. 1, c. 4,
when the 3 & 4 W. 4, c. 27, was passed, cannot
be set up again by a written acknowledgment,
though given after the passing of the latter
Act; nor would an acknowledgment under the
latter statute, given by a debtor after the sale
of an estate, set up against the purchaser a
judgment which was barred by it at the time
of the purchase.

Though a judgment of revivor is conclusive
on an application to appoint a receiver, yet
the Court will stay the distribution of the
funds until steps may be taken in the proper
Court to get behind the revivor, in a fit case.
—Cloncurry v. Piers, 9 I. E. R. 407; 3 Jon. &
L. 573. (C.)

3. Parties, claiming a charge on lands, exe-
cuted a general release of all claims they
might have on them. The release contained
matter that, with reasonable diligence on the
part of the re-leasors, might have informed
them of their rights. The lands were subse-
quently sold. On bill filed after twenty years
from the accrual of the charge, impeaching the
release on the ground of fraud—Held, that the
plaintiffs did not come within the 26th sec. of
the Statute of Limitations, and were therefore
barred from prosecuting their suit.—Kelson v.
Lewis, 21. Jur. 10. (C.)

4, Judgments of 1810 revived in 1845 and
1846 on sci. fa. sued out in Oct. 1844. Bill
filed in 1823. Decrees in 1834 directing an
account of incumbrances, ‘and for a sale, in
1836. After an order of reference to allocate
the funds, the person entitled to the judg-
ments obtained leave to prove them, and make
up a separate report, on an affidavit stating
that he never was informed of the existence
of the suit or the decrees, or that one of the
decrees enabled the creditors to prove there-
under, until very lately; and that he was not
aware of the scope and effect of the decree
until a few days before, when a copy was pro-
cured from the Registrar’s office by his soli-
citor. He filed a charge in April 1846, and
the Master reported him entitled to interest

 

[STATUTE OF LIMITATIONS.]

amounting to the penalty of the judgments.
On objections to the report, the Court, follow-
ing Berrington v. Evans (1 Y. & C. Exch. 484),
and O'Kelly v. Bodkin (3 I. E. R. 390)—Held,
that the suit and decrees did not save the bar
of the Statute of Limitations (3 & 4 W. 4, c.
27, s. 42), and—

That the “action or suit” by which the
arrears of interest “ shall be recovered” under
sec. 42, was the charge filed in the cause, and
not the sci. fa.; and therefore that the party
was entitled to six years’ interest from the
filing of the charge only.— Hutchins y. O’ Sulli-
van, 11 I. E. R. 443. (R.)

5. In 1792 C. obtained a judgment against
B., which was never revived or redocketed,
but interest was paid within twenty years
before the proceedings by the creditor.

In 1812 B. entered into a recognizance to
abide the decree to be pronounced in a cause
of L. v. O’B., but in which though revived a
decree had not been pronounced.

In 1816 B.’s heir granted an annuity for
value, charged on the lands which he inherited.
The lands being sold, a fund remained in
Court, consisting partly of the surplus of the
purchase-money; partly of rents received in
the cause, and partly of dividends of stock
purchased by the two former sums. An order
having been made in May 1844 to report
priorities and distribute these funds amongst
the creditors pursuant to the 102nd G. O. and
report thereon; Held, that the judgment was
to be postponed to the annuity. That pay-
ment of interest on the judgment within
twenty years prior to the order was sufficient
to take it out of the Statute of Limitations,
though more than twenty years had elapsed
between the obtaining of the judgment and
the payment. The annuity, by gaining priority
over the judgment, under Moore’s Act, does
not carry up the recognizance so as to give it
priority over the judgment, no provision being
found in that Act similar to that in the
Registry Act, and the judgment being only
affected to the extent of the annuitant’s claim
against the land. That it was possible there
might be a decree in the revived suit of L. v.
O’B., and, if so, the recognizance would be a
subsisting charge, and would have priority
over the annuity as against the surplus pro-
duce of the sale, but would not attach upon
the rents or dividends.—Latouche y. O’Brien,
10 I. E.R. 113. (R.)—[Observed on: Jn re
Huthwaite, 2 J. C. R. 54; 4 I. Jur. 161. (P.

C.)]

6. A debtor wrote to X. a letter, which was
not to be opened till his death, and was to be
considered as his will, in which he directed X.
and other creditors named to be paid as soon as
X. could get funds in hands. In asuit to ad-
minister the debtor’s assets the Statutes of
Limitation were relied on against X., whose
demands, by judgment and simple contract,
were more than 20 years old at the debtor’s
death. Held, that they were not barred.

Executors or administrators may retain for
debts barred by the Statute of Limitations,
[STATUTE OF LIMITATIONS. ]

though it is set up by the legatees or next-of-
kin.— Clinton v. Brophy, 10 I. E. R. 139. (C.)

1. The Statute of Limitations (8 & 4 W. 4,
c. 27, s. 42) does not apply to additional rent
in lieu of tithe rentcharge, as between land-
lord and tenant.—Lz parte Warburton, 101. E.
R. 206. (R.)

2. A., having a term for 150 years, assigned
it by way of mortgage in 1794, and in 1806
took a new lease for 180 years of the same
premises, his interest in which was sold under
a decree in 1846. No evidence was given to
show that the mortgage was paid off, or when
interest had last been paid on it. Held, that
the fact of the mortgage being dated in 1794,
was not of itself evidence against a purchaser,
that the mortgage was paid off or barred
by the Statute of Limitations.—Spunner vy.
Waish, 10 I. E. R. 386. (R.)

8. The Statute of Limitations (8 & 4 W. 4,
c. 27, s. 2), applies only between adverse
claimants of the estates in tithe rentcharge,
and not as between the owner of the tithe
rentcharge and the occupier and owner of the
land.

Queere—Whether a lay landowner can estab-
lish an exemption from tithe rentcharge by
proof of non-payment for one of the periods
mentioned in the 1 & 2 Vic., v. 109, s. 18, with-
out other proof of the legal origin of the
exemption ?—Shiel v. The Incorporated Society,
101. E.R. 411. (R.) :

4. A., being entitled to a jointure of £480,
charged on lands producing only £240 a-year,
went into possession in 1800. In 1835 the
rental was increased so as to leave a large
surplus after paying the jointure; and she
continued in possession. Held, that the Sta-
tute of Limitations did not apply, and she
was entitled to the entire arrears accumu-
lating from 1800.—Battersby v. Rochfort, 10 I.
E. R. 439. (C.)

5. The 2nd sec., as well as the Ist, of the
Redocketing Act, 9 G. 4. c. 35, only avoids
judgments in favour of purchasers becoming
such after twenty years from their entry.
Therefore a judgment of M. T. 1818 was not
rendered void under the 2nd sec. in favour of
a purchaser under a conveyance of 1831,
though not revived or redocketed either within
twenty years of its entry or five years of the
passing of the Act (June, 1828).

[Hickson v. Collis, ante, vol. 6, 524, reversed
on re-hearing. |— Hickson v. Collis, 10 I. E. R.
447. (C.)

6. A., upon the marriage of his daughter,
charged by deed in 1793, upon lands, money,
which by the same settlement was assigned to
trustees, to permit the husband and wife to
receive the interest during their lives, and
after their decease to pay the principal
amongst the children, as the parents or sur-
vivor of them should appoint. There was no
clause empowering the trustees to give dis-
charges. The surviving parent died in 1845.

 

587

No payments appeared to have been made by
the owner of the lands subsequent to 1826.
Held, that the charge was not barred by the
Statute of Limitations, there being no person
capable of giving an effectual discharge for
the principal until the death of the surviving
oe ‘Carthy vy. Daunt, 11 I. E. R. 29.
)

7. A. devise of lands to A for life, subject
to all the testator’s just debts, legacies, and
funeral expenses, with a bequest of his per-
sonal property to A., the better to enable her
to pay his debts, &c., does not prevent a judg-
ment debt of the testator from being barred
by the 3 & 4 W. 4, c. 27, s. 40, or create a trust
for the creditor within the 25th section.

The distinction between charges on lands
and trusts for debts considered, and the
several cases on their effect in reference to
the Statute of Limitations reviewed.

Counsel for an incumbrancer, whose charge
is stated in the bill, but not proved in the
cause, will not be heard against the ptf.’s
rights— Dundas v. Blake, 111. E.R.138. (C.)

8. Acknowledgment, in writing, by mort-
gagor, of payment of interest on a mortgage,
not signed by him—Held, sufficient to take the
case out of the Statute of Limitations.—Jn
the Matter of the Wide Street Commrs. of Cork,
11. Jur. 9. (R.)

9. In 1793, R. devised to F. an annuity for
life, charged on lands, and after her death
charged the lands with portions for her daugh-
ters. F. died in 1827, leaving two daughters,
both married. The coverture continued for
about twenty years after the death of F., and
no step was taken to reduce the charges into
possession. On bill, filed after twenty years
from the death of F. had expired—Held, that
this case did not come within any of the ex-
ceptions to the Statute of Limitations, 3 & 4
W. 4, ¢. 27, s. 40.—O’ Keeffe v. Holmes, 2 I.
Jur. 313. (C.)

10. Lands subject to an ancient rent were
sold in 1766, and the purchaser was indemni-
fied against it by the vendor, who held other
lands similarly charged, and whose representa-
tives continued to pay it. The owner of the
sold lands had not made any payment since
1766. Held, that, as to the sold lands, the
receipt of the rent was not discontinued ; and
that the Statute of Limitations had not begun
to run.—Archdp. of Dublin y. Lord Trimleston,
121. E.R. 251. (C.)

11. Lands, liable to a jointure of £2000, pay-
able to the wife of K., the testator, were devised
by him to A. for life, with remainder to trus-
tees for 1000 years, upon trust to raise money
to pay the debts and legacies of K.; remain-
der to B. for life; remainder to C. for life;
remainder over. K. died in 1804. The joint-
ress in 1805 advanced £8500 in payment of
his debts, and took a mortgage to secure that
sum from the trustees of the term. In 1806
she married B. On that occasion the jointure
was settled to her separate use, and the £8500
588

mortgage was settled on B. for life; and, if
he survived the intended wife, upon him ab-
solutely. On the death of K., A. entered into
possession of the lands, and died in 1807.
B. then entered into possession of the lands;
his wife the jointress died in 1827, and he died
in 1828. C. then entered into possession, and
being entitled to the personal estate of the
jointress, filed a bill in 1843 praying a fore-
closure of the mortgage. That bill stated
that during the life of the jointress the rents
of the lands had been insufficient to pay the
jointure. There was not any evidence of any
payment of interest upon the mortgage up to
the filing of the bill. Held, on the principle
laid down in Burrell v. Lord Egremont (7
Beavan, 205), that the mortgage debt was not
barred by the Statute of Limitations, 3 & 4
W. 4, c. 27.

That, although upon the death of the joint-
ress in 1828, more than twenty years had
elapsed without any payment in respect of
the mortgage, yet the Court would presume
that, from that period, B., and, after his
death, C., had kept down the interest.—Lord
Carbery v. Preston, 13 I. E. R. 455. (C.)

1. A., seized of a f. f. estate, confessed a
judgment to his landlord. After the princi-
pal and interest had reached the penalty,
the conuzee, in 1804, served notice on the
tenants to pay him the rents until the judg-
ment should be paid off, under threat of legal
proceedings. The tenants, with the assent of
the conuzor, paid the rents to the conuzee
until 1809, when they assigned the judgment
to the defendant, one of the tenants, who
thenceforth received the rents until the filing
of the bill, and set two houses to which spirit
licenses were annexed, for sums not men-
tioned in the leases, and at rents less than the
houses would otherwise have brought; and
also expended money on improvements.

On a bill to redeem by the representatives
of the conuzor—Held, that though no elegit
had been sued out, the defendant was entitled
to interest on the principal after it had reached
the penalty, not denying the plaintiff’s right,
or setting up the Statute of Limitations.

That the sums paid by the under-tenants to
the defendant for the houses were to be con-
sidered as fines, though the advantages of the
licenses were to be taken into account.

That the rents should be applied, first, to
the reduction of the interest, and then of
the principal of the judgment debt, before
being applied to discharge the sum expended
on improvements.— Cloughley v. Jameson, 18 I.
E.R. 471. (C.)

2. A., seized of estates, devised them in
trust for the “payment and discharge of the
debts of his father.” Held, a legacy, not a
trust for the benefit of the creditors whose
debts subsisted at the death of the father.

That a creditor’s debt, subsisting at the
death of A.’s father, was payable, though
barred long before A.’s death.

[foster v. Ley (2 Bing. N. C. 269) considered
and approved of. ]—Carr v. O’ Connor, 31. Jur.
185. CC)

 

[STATUTE OF LIMITATIONS.]

3. A., having a life interest in certain es-
tates, gave a bond to a creditor, C., with a
warrant of attorney to confess judgment for
its amount. No judgment was entered up.
Within three years after giving the bond, A.
died, and left no assets, real or personal. His
son, B., first tenant in tail of the estates,
entered into possession, and expressed in let-
ters to C. w wish to pay his father’s debts;
but would not give any security for them. B.
made a will, in which he recited his own wish,
and a promise, in conformity with it, made
by him to his father and mother; and the
will continued thus :—‘ And in case I should
not be able to fulfil my intentions during my
lifetime, and that I should not have a suffi-
cient fund for that purpose arising from my
personal estate, I hereby charge all my just
debts, and also all the debts of my late father,
A., which shall remain unpaid at the time of
my decease, upon all my real estates whereso-
ever,” &c. He then directed his trustees to
stand seized of all his estates, “subject in
manner aforesaid to the payment of all my
just debts and to the debts of my father.” B.
survived his father many years. C. filed a
charge on foot of the bond against the trus-
tees of B.’s will. Held, that A.’s debts, which
were not barred by the Statute of Limitations
at A.’s death, were charges on B.’s real estate.
O’ Connor v. Haslam, 5 H. L. Cas. 170.—[Affg.
decree of Court of Ch. in Ir.]

4. When there is a mortgage over several
denominations of land, and the mortgagor
sells some of them for valuable consideration,
without the concurrence of the mortgagee,
and the interest due under the mortgage is
regularly paid out of the remaining denomi-
nations, the lands sold are not discharged
from the mortgage, although no proceedings
have been taken against them within twenty
years (8 & 4 W. 4, ¢. 27, and 7 WL. 4&1
Vic., ¢. 28).

Payment of interest, through a receiver ap-
pointed under the Mortgage Act (12 G. 3, ¢.
10), is a payment within the 7 W.4 & 1
Vie., c. 28.—In re Muskerry, 9 I. C. R. 94.
(C.A.)

5. A creditor filed a claim on a judgment
against the owner, calculating interest by
charging all the interest which accrued since
the judgment, and giving credit for rents re-
ceived by him out of a portion of the estate
of which he had been put in possession by the
owner. The calculation left a balance due
exceeding six years’ interest. The creditor
contended that his possession of part of the
estate prevented the operation of the Statute
of Limitations.—Held, that the claimant was
only entitled to six years’ interest from date
of filing petition —Jn re Browne’s and Beytagh’s
Estate, 91. Jur. N. 8.155. (L.E.C.)

6. A payment, of principal or interest of
money charged on lands, by a person expressly
or impliedly authorised to make it, is equiva-
lent to payment by the party liable, so as to
prevent the operation of the Statute of Limi-
tations ; but a payment by astranger will not.
[STATUTE OF LIMITATIONS.]

Parties, seized of A. and B., subject to a
term to pay off incumbrances, conveyed A. to
» purchaser, and B. to trustees to indemnify
and protect A. from all incumbrances and
charges. W., the owner of B., subject to the
trust, subsequently covenanted to pay the
interest of one of the charges. Held, that
W.’s payments, were payments by an agent to
save the bar of the statute as against the pur-
chaser of A.

Semble—The payment of interest by the
owner of B. after the expiration of twenty
years, would not revive the right to proceed
against A.— Homan v. Andrews, 1 I. C. R. 106.

®.)

1. By marriage articles the husband agreed
to settle out of the lands of K., in failure of
A. his daughter by a former marriage, a join-
ture on his intended wife, the remainder of
the lands on the issue male begotten on the
wife ; and in failure of issue male, on the issue
female; and in case A. should survive, and
the lands of K. should not be made good, that
then the lands of K., which were not settled
on the former marriage should be subject to
the jointure, and be settled on the eldest son
of the marriage; and in failure of the said son,
on the daughters of the said marriage. There
was no male issue of the marriage, but female
issue, B., C., and D. No settlement was exe-
cuted, and the lands descended to A., B., C.,
and D., subject to the trusts of the articles, in
1763, when B., C., and D. went into possession.
In 1783 they levied a fine, and conveyed to a
purchaser for value, and covenanted that they
were seized in fee. There were several sub-
sequent conveyances for value. In 1847 the
lands were contracted to be sold. Held, in a
suit for specific performance against the pur;
chaser, that the legal title of A. and her heirs
to one-fourth of the lands was barred by the
Statute of Limitations, as a Court of Law
would not notice the executory trusts of the
articles, and the several conveyances operated
as disseizins. :

Semble—The equitable title of the heir of
A., on failure of issue of B., C., and D., was
also barred; but—Held, that as the fine
created no discontinuance in equity, the title
was too doubtful to be forced on the pur-
chaser.

A conveyance of all her estate, &c., was
obtained from the devisee of the heir-at-law
of A., and was held to put an end to the
objection; for although the reversion belonged
to the heir of the settlor, he must trace title
through the daughters, and all their right was
extinguished by this conveyance and the fine.
—Stewart v. The Marquis of Conyngham, 1 I.
C. R. 534. (R.)

2. There is no practice in Ireland at variance
with the cases of Young v. Lord Waterpark
(18 Sim. 204), and Cox v. Doleman (2 De Gex,
M'N., & Gor. 592). When money is secured
by a term of years, the 42nd sec. of the Sta-
tute of Limitations (8 & 4 W.4, u 27) is not
applicable, and more than six years’ interest
may be recovered.—In re Wyse, 4 I. C. RB. 297.
(P.C.)

 

589

3. No more than six years’ arrears of tithe
rentcharge can be recovered by its owner from
the owner of the lands—Eccl. Commrs. v.
Sligo, 51. C. BR. 46; 71. Jur. 261. (C.)

4. By deed, dated July 1823, lands were
conveyed to trustees, subject to a power
enabling one of the parties to borrow or take
up at interest £100,000 on the security of these
lands, and to charge all or any of the lands
with payment of that sum; proviso, that the
lands should stand in the hands of the trustees
as a security for that sum, with power to them
to raise the sum by mortgage. In 1830, by
deed, the donee of the power, in consideration
and for securing the payment of £5800, ad-
vanced by J., assigned to J., and his assigns,
the principal sum of £100,000, together with
all lien aud securities, right, title and interest
thereon, upon trust to recover payment of that
sum, and after retaining £5800, or so much
as should be due, together with all interest
thereon, to pay over the residue. This deed
contained a clause of redemption upon pay-
ment of the original sum of £5800, with
interest. Held, that interest upon the £5800
was payable from the date of the deed of
1830, and was not limited to six years by the
provisions of 3 & 4 W. 4, c. 27, sec. 42.—
Brand v. Greenly, 71. Jur. 309. (C.)

5. In 1813 lands were conveyed to the use
that A. and B. should have for ever a yearly
rentcharge, with a clause of distress if it should
be in arrear for 21 days; if no sufficient distress
could be found on the premises for 41 days
next after the days appointed for payment, it
should be lawful for A. and B., their heirs and
assigns, to enter on the premises, and take the
rents and profits, and keep them in payment
of the rentcharge and all arrears. A. and B.,
and their heirs, &c., were empowered by sale
or mortgage of the lands, or mut of the rents
and profits, to raise such sum as should for
ever thereafter suffice to pay the rentcharge.
In 1842 the portion of the arrears due from
Noy. 1834 to Nov. 1840 was assigned to the
petr., who, in 1853, filed a petition to raise it
out of the lands. <A. died: B. survived.

Semble—That an ejectment could not be
sustained on the clause of re-entry, unless it
was proved that no sufficient distress could be
had on the premises.

Held, that the question whether the petr.
was barred by the Statute of Limitations de-
pended on B.’s right to recover in the eject-
ment. There not being any evidence of want
of sufficient distress, the Court allowed an
ejectment to be brought.

Quere—Whether the clause of re-entry,
being conditional, and in the nature of a
power of distress, could be made available to
recover an arrear of rent, when the right to
distrain is barred by sec. 42?

Held, that the power of sale or mortgage
could not be exercised by the surviving trustee
to raise arrears, of which the recovery by dis-
tress or action was barred by sec. 42.

Quere—Whether the surviving trustee could
in any case exercise it?

Held, that an acknowledgment by a tenant
590 [STATUTE OF

for life of lands charged with a rent will bind
the remainderman so as to take the case out
of section 42, when the right to recover the
arrears is not barred. Such an acknowledg-
ment will not revive a demand already barred.
Smith v. 8.51. C. R. 88. (R.)

1. The liability of the separate estate of a
married woman for a debt which would be
a simple contract debt in the case of a person
sui juris, is not barred by the lapse of six
years from the accruer of the cause of action.
—Vaughan v. Walker, 6 I. C. R. 471; 2 dur.
N.S. 481. (C.)—[Affd.: 81. C. R. 458; 31.
Jur. N.S. 208. (C.A.)]

2. When a creditor has instituted in the
Court of Ch. a suit which has been ended by
a sale, in the I. E. Court, of the lands the sub-
ject-matter of the suit, he will be entitled to
the same rights, and will, as far as possible,
be placed in as good a position in the I. E.
Court as if he had been permitted to continue
the proceedings instituted by him in the Court
of Ch.

C. having, in 1846, obtained an assignment
of an annuity, charged upon lands belonging
to G., subsequently obtained an order in a
suit in the Court of Ch., appointing a receiver
over the lands, until the arrears of the annuity
should be paid. In 1852, G. filed a petition
for sale of the lands in the I. E. Court, and an
absolute order for sale was made in May 1853.
The term for which the annuity was granted
had expired in March 1853. Held, that the
Statute of Limitations did not apply so as to
restrict C.’s claim to such arrears as had
accrued within six years before the filing of
the petition in the I. E. Court, but that he
was entitled to whatever amount he might
have recovered in the Court of Ch., if the suit
there had not been interfered with.

This Court wall not decide a legal question,
in order to give effect to an equity, unless
such equity be plain.—Jn re Glover, 6 F.C. R.
587; 31. Jur. N.S. 134. (LE.C.)

8. In 1767, D., seized of an undivided fourth
of fee-simple and renewable leasehold estates,
demised her one-fourth to L., for 999 years,
subject to arent. L. at the time owned an-
other undivided one-fourth of the same lands.
L.’s interest vested in S., who became entitled
to the remaining two-fourths. C. became en-
titled to D.’s interest in the reversion, and the
rent was paid to her by S. up to 1828, when C.
died, having devised her interest to the petr.
On C.’s death, 8. denied the petr.’s title; re-
fused to pay him the rent; and asserted a
title to retain the rent for her own benefit.
This claim appeared to have been made under
a bona fide belief that the title had devolved
upon §._ §. died, leaving the respondent en-
titled to her interest, who, in 1835, obtained a
renewal of the leasehold lands. In 1857, the
petr. filed a petition to have the renewal de-
elared a trust for him. Held, that he was
barred by the lapse of time from 1828.

A petr. may read as his evidence a portion
of a respondent’s affidavit, without making the
whole his evidence.— Archbold y. Scully, 8 1. C.

 

LIMITATIONS.]

R. 177. (C.)—[Affirmed: 9 I. C. R. 152; Dr.
Rep. temp. Napier, 330. (C.A.)—Reversed :
9 H. Lds. Cas. 360.]

4, A. in 1809 devised £470 to her daughter
E., the interest thereof to be paid to B., the
husband of E., “until the time hereinafter
limited and appointed for the payment of the
legacy of £470—that is to say,” if E. should
survive B., the legacy and interest was to be
for her and her children, but if she died before
B., leaving issue, then the legacy was to be
placed out at interest for the benefit of the
issue, and paid to them on their respectively
attaining age. If no issue, the legacy was to
be divided between M. and T. The will em-
powered the executor to advance the £470 to
B. on approved security.

In 1811 the executors advanced £470 to B.
on the security of a mortgage of lands belong-
ing to B.’s father. B. and his father joined in
the mortgage. E. died in 1827, leaving issue.
B. died subsequently, within 20 years before
the presenting of the petition for sale of the
mortgaged lands. The issue attained their age
within the same period. No interest had ever
been paid on the mortgage up to the present-
ing of the petition—a period of more than 40
years. Held, that B.’s interest in the trust
fund determined on the death of his wife in
1827; and that, as more than 20 years had
elapsed without payment of interest, the mort-
gage was barred by the Statute of Limitations.

That there was no express trust created in
the owner of the lands within the meaning of
the 25th sec. of the 3 & 4 W. 4, c. 27.—In re
Scott, 81. C. R. 316. .E.C.)

5. A lessee, for lives renewable for ever, de-
mised the lands for the same lives for which
he held them, reserving a small profit rent.
The sub-tenant regularly paid the head land-
lord’s rent, but did not, for a number of years,
much exceeding twenty, pay any rent to his
immediate lessor. Held, that the Tenantry
Act applied, and that the representatives of
the original lessee were entitled to a renewal,
notwithstanding the lapse of many years from
the death of the surviving c. q. vie.

A sub-lessee having filed a petition for
specific performance of an alleged covenant
for perpetual renewal, against the head land-
lord and his immediate lessor—Held, that the
pendency of such suit was a sufficient excuse
for the mesne tenant not filing his cause peti-
tion until the sub-lessee’s suit was dismissed.
The landlord, having acted vexatiously, was
ordered to pay the costs of the suit for re-
newal.— Roberts v. Mayne, 81. C. R. 525. (C.A.)
[Affg. 7 I. C. R. 551; 3 I. Jur. N. §..3538 ;
Dr. Rep. temp. Napier, 175. (C.)]

6. When lands are conveyed upon trust to
secure money and interest; and, subject there-
to, for A., his heirs and assigns, the owners of
the money are not precluded by the 3 & 4 W.
4, c, 27, s. 42, from recovering more than six
years’ interest.— Gyles v. G., 9 I. C. R. 135;
Dr. Rep. temp. Napier, 257. (C.)

7. Two judgments of 1797 were obtained
[STATUTE OF LIMITATIONS.]

against D., seized of the lands of B. and §. B.
was sold in the I. E. Court on the petition of
a mortagee of 1845. The price being insuffi-
cient to pay the mortgage, an issue was di-
rected by that Court to try whether the judg-
ments had been paid? <A verdict was found
that they had not. The mortgagee was there-
upon directed by the Court to pay the sum
due on the judgments, which were assigned to
a trustee for her. Held, that the judgments
were subsisting charges against S., and were
not barred by the Statute of Limitations.—
Morris v. Herbert, 91. C. R. 327. (R.)

1. M. devised lands to R., with a recommen-
dation that these and other lands should be
settled in such manner as to continue in the
male line of the family, and in their name and
blood to go to the several branches in succes-
sion according to seniority, and in the usual
course of limitation in family settlements.
M. died in 1776, leaving R. his heir-at-law.
R. treated the lands as his own property; never
made a settlement; and died in 1816 intestate
and without issue, leaving H. and C. his co-
heiresses-at-law, and also the co-heiresses of

At the death of R., X. was the person who,
if a settlement had been made giving succes-
sive life estates to the brothers and nephews
of M. in esse at the time of his death, with re-
mainders in tail to their issue male, would
have been entitled to the first estate in posses-
sion as tenant for life, with remainder to his
first and other sons in tail. H. and C. dis-
puted X.’s claim; but a compromise was made,
which was carried out by a deed of 1820, which
recited that X. was the only surviving male
descendant entitled under the trust of M.’s
will, and that he would be entitled (if at all)
to an estate for life, with remainder to his
first and other sons in tail male, leaving the
reversion to H. and C. H. and C. thereby
conveyed the lands to X. for life ; remainder
to his first and other sons in tail male; re-
mainder to X. in fee; and X. granted annuities
to H. and C., and undertook to indemnify
them against debts. X. died without issue
male in 1834, having devised the lands to the
respondents.

The petr. claimed to be entitled under
the limitations in the will of M. Held, that
the claim was barred by the Statute of Limi-
tations.—Malone vy. O’ Connor, 9 I. C. R. 459;
Dr. Rep. temp. Napier, 626. (C.)

2. A purchase deed contained a covenant
for quiet enjoyment, free from quit rent and
crown rent. By a contemporaneous deed of
indemnity, lands were conveyed to a trustee
and his heirs, upon trust to permit the vendors
and their heirs to take the rents and profits
until the purchaser and his heirs, or any per-
son deriving under him, should be molested,
&c., by reason of judgments and incumbrances,
or any of them, or any judgment or incum-
brance affecting the purchased lands, or any
of them, or until some suit at Law or in Equity
should be commenced or proceeded on against
the purchaser, his heirs or assigns, or the pur-
chased lands and premises, or any part thereof,

 

591

for the recovery of, or on account of the said
or any other incumbrance or incumbrances ;
and immediately after any such disturbance,
&c,, out of the rents and profits of the in-
demnity lands, by sale, demise, or mortgage
of a competent part thereof, to raise and levy
from time to time such sums as might be suffi-
cient to pay off and discharge the said and all ,
other incumbrances affecting, or that might
affect, the lands. In 1827, quit rent and
crown rent were claimed and paid out of the
lands. In 1828, the indemnity lands were
mortgaged by persons claiming under the ven-
dors. In 1839, a report, finding that there
were no incumbrances, except those named
in the report on the indemnity lands, was
made, and confirmed by a decree in a suit in
which the sums then paid for quit rent and
crown rent might have been, but were not,
claimed. In 1858, an order permitted the
owner of the purchased lands to go before the
Master, and file a charge in respect of his
demand for quit'rent and crown rent accrued
since the date of the report and the decree.
Held, that the claimant was not precluded, by
the finding in the report and decree, from
proving his demand.

That the demand was not barred by the
Statute of Limitations.

That the trust in the indemnity deed to
indemnify the purchaser was not void for re-
moteness.—Massy v. O'Dell, 101. C. R. 22. (R.)

3. W., by will, after directing his debts to
be paid, and bequeathing certain legacies, left
all the residue of his personal estate to his
executors, in trust to pay the interest to his
wife, A., for life. A portion of the residuary
property consisted of stock, which was set
apart to meet a life annuity which determined
in 1829. In a suit to administer the assets of
W., the dividends of the stock which accrued
after the death of the annuitant were decreed
to be paid to A. and her second husband,
Held, that A. was not entitled to any relief
against the assets by reason of the stock not
having been sold a year after the death of W.
Napier v. Staples, 10 I. C. R. 344. (R.)

4. S., a lessee of premises for 125 years,
from the 25th March 1782, by lease dated
21st July 1787, which contained the usual
clauses of distress and re-entry, demised
them to H. for 120 years from the 25th March
then last past. Twenty-two years’ arrears of
rent accrued due to the representatives of the
lessor in the last mentioned lease. Held, that
although §. had no reversion expectant on
the determination of the lease of the 21st
July 1787, yet that the rent reserved by it
was a conventional rent; and that therefore
the right of the representatives of S. to the
rent during the residue of the term was not
barred by the 3 & 4 W. 4, c. 27, s. 2.—In re
Turner's Estate, 111. C. R. 304. (L.E.C.)

5. G. devised the lands of L. to his daugh-
ters, as tenants in common.

Upon his death in 1824, J. entered into pos-
session, and so continued until his death in
1831, when his son, D., entered into posses-
sion, and so continued until 1858. A judg-
592 (STATUTE OF

ment obtained against G., in 1811, was revived
by sci. fa. in 1831 (before J.’s death) against
J. as G.’s heir-at-law ; against the co-heiresses,
and against terre-tenants of other lands; but
L. was not mentioned in the return to the
set. fa. Held, that D. had acquired an estate
in fee in L. by 20 years’ possession, and that

_L. was not affected .by the judgment of 1811,
J. not having been made a party to the sci. fa.
as to those lands.—Jn re Bodkin’s Estate, 12
I.C.R. 61. (C.)

1. V. bequeathed £250 to A., chargeable
on lands, and to be paid by yearly instalments
of £20 per:annum, from the day of her mar-
riage, with consent, but not until then; and
if A. should intermarry, without such consent,
then she should be entitled to one shilling;
such portion of £250 to be paid and payable
by yearly instalments of £20 per annum, from
the day of her marriage, but not until then ;
with power to A., or her lawful husband, to
distrain in case of non-payment of the £20;
and he desired that the annuity of £20 per
annum be paid to A., or her lawful husband,
by two half-yearly payments of £10 each,
until the sum of £250 be paid to her or her
assigns; and further desiredthat his two sons,
B. and C. (to whom he devised the lands),
should contribute, jointly and severally, to
support and clothe A. in a respectable man-
ner; and that, upon doing so, no interest
should arise upon the £250; but if they ne-
glected such support and clothing, he desired
that £250 to be liable to interest at £6 per
cent., until A.’s marriage, but by no means
after. Held, that the instalments were period-
ical payments of a sum of money charged
upon lands, and as such within the 42nd sec.
of the Statute of Limitations (8&4 W. 4, c.
27).

the lands were devised to B. and C.,
and, if either died without issue, to the sur-
vivors. C. and A.’s husband settled an ac-
count as to the moiety of the £250, and a
bond was given for the balance, which C.
paid. 3B. died afterwards, without issue, and
without having paid his moiety of the £250,
having, by his will, disposed of his share in
the lands, under the impression that he had
a right to do so.

Semble—The settled account did not pre-
clude the recovery of the unpaid moiety of
the £250 against C., who, on B.’s death, be-
came entitled to his share of the lands.—
Uppington v. Tarrant, 12 I. C. R. 262. (R.)

2. A. by marriage settlement, executed on
the 10th August, 1787, covenanted with the
trustees, within three years after the marriage,
to pay to them, their executors, &c., £2500,
which (with £500, the fortune of A.’s intended
wife) they were to invest in the purchase of
land, to be held in trust for A. for life, and,
after his decease, for the children of the mar-
riage. The settlement provided that, until
such investment, the trustees should lay out
these two sums on public or private security,
and pay the interest to the persons entitled to
the rents of the purchased lands. On the same
day, A. passed his bond to the trustees for the

LIMITATIONS. ]

penal sum of £6000, and judgment was en-
tered up against him by the trustees on the
llth August 1787. On the 10th November
1800, A. became entitled to an equitable in-
terest in the lands of H. Under the limita-
tions contained in a deed for valuable consi-
deration, dated the 14th of May 1812, this
equitable interest. became vested in B, with-
out notice of the judgment. A. died in the
year 1845. C., one of A.’s daughters, in 1862
presented a petition for the sale of the equi-
table interest in H. to pay the judgment. No
payment of principal or interest was ever made
on foot of the judgment, nor was there any
acknowledgment in writing, nor revivor, with-
in twenty years before the filing of the peti-
tion. Held, that even supposing the two sums
of £2500 and £500 were represented by the
judgment, B. was entitled, as a purchaser for
value without notice, to hold H. discharged
from the judgment; and that, therefore, the
petition must be dismissed with costs.

Semble—That a judgment creditor claiming
against an assignee for value, should aver no-
tice, to give himself any equity. Inre Grady’s
Estate, 13 I. C. R. 154. (.E.C.)

3. A., seized in fee of lands in Ireland,
granted an annuity in 1812. In 1820 A. be-
came insolvent in England; and the then
usual deeds of conveyance were executed. In
1822 the grantees of the annuity filed a billin
Ch. in Ireland for a receiver, and prayed
process against the assignees in the English
Insolvency, who never answered. The posses-
sion of A. remained undisturbed by the assig-
nees, and, in 1828, a receiver was appointed
over, and went into possession of, the lands,
and was in possession when the petition for
sale in this matter was filed. On the 81st of
July 1861, the assignees conveyed the lands
to the owner in this matter, subject to the an-
nuity. On a petition for sale presented by the
owner—Held, that the conveyance of the 31st
of July 1861, was inoperative; that the title
of the assignees was barred by the Statute of
Limitations ; and that the possession had al-
ways been adverse to them. The L. E. Court
always requires that an owner and petitioner
proceeding for sale, should be in the actual or
virtual possession of the estate, or in the re-
ceipt of the rents——Jn re Butler's Estate, 13 I.
C. R. 453. (L.E.C.)

4, In 1812, lands, held for lives renewable,
were conveyed by A.to the use of himself for
life, remainder to B. and his heirs. A. died;
and in 1813 B., who did not appear ever to
have gone into possession, by marriage articles
agreed to settle the lands on himself for life;
remainder to his wife for life; remainder to
the petitioner. In 1814 a renewal was granted
to the heir-at-law of A. In 1827 B. died;
and in 1851 B.’s wife died, when the petition-
er’s right under the articles accrued. A. and
those claiming under him remained in unin-
terrupted possession from 1814 to 1862. Held,
that the petitioner’s right under the articles
was barred by the Statute of Limitations.

That, though the petition did not pray fora

 

specific execution of the articles, yet as the
[STATUTE OF LIMITATIONS.]

claim was founded on them, it was barred by
laches, independently of the Statute of Limi-
tations.— Rossiter v. R., 141. C. R. 247. (R.)

 

IV. As APPLicaBLE To Trusts, BREACHES OF
Trust, AND Fraup.

1. A. was expressly named ‘a trustee in a
will under which there arose a question,
whether he was not in part beneficially inter-
ested. Held, that his representatives were
trustees within the 3&4 W.4, c. 27, s. 25;
and that, though this Act would bar a con-
structive trust, which, before it, might have
been barred by length of-time, that rule applied
only when the trust did not arise on the:face
of the instrument, but was to be made out
by evidence.—Salter v. Cavanagh, 1 Dr. & Wal.
668. (C.)

2. R., by will, directed his executors to in-
vest £1500, and pay the interest to his wife
for life; and, after her death, divide the prin-
cipal equally among his five children. In a
suit by the representatives of R.’s children for
their respective shares of the £1500, insti-
tuted upwards of 30 years after their right ac-
crued, it was prayed that the executor, who
proved the will, might be declared to have been
trustee thereof for R.’s children. On demurrer
—Held, that it was a suit not for alegacy, but
for the execution of a trust, and that the Sta-
tute of Limitations did not apply—Daly v.
Kirwan, 11. E. R. 156. (B.).

3. When a trust is created by will to pay
debts, the right of a judgment creditor to the
benefit of that trust is not affected by the 40th
sec. of the 3 & 4 W. 4, c. 27.—Dillon v. Cruise,
31. E.R. 70. (C.)

4. A foreclosure suit is within the 22nd, 23rd,
and 24th sections of 3& 4 W.4, c. 27.

The 24th section of 3& 4 W.4, c. 27, in-
cludes legal as well as equitable titles and
estates.— Wrizon v. |Vize, 5 I. E. R. 178; 2
Con. & L. 133; 3 Dr. & War. 104. (C.)

5. When the charge on the real estate for
payment of debts and legacies was only con-
tingent upon the event of the personal estate
of which the testator died possessed proving
insufficient, and there was no allegation in the
bill, that the personal estate was deficient—
Held, that plaintiff, a legatee, failed to show
that the real estate was at all liable, or that
there was any trust thereof to prevent the
operation of the Statute of Limitations against
her demand.—Cocking v. Golding, 4 I. E. R.
169. a®)

6. Charities were not within the early
Statutes of Limitations, nor were they adjudi-
cated upon by equity as subject to any rule of
limitation founded upon an analogy to those
Statutes.

Semble—They are not within 3&4 W.4, ¢.
27.—Incorporated Society v. Richards, 1 Dr. &
War. 258; 1Con. & L. 58; 41. E. R.177.(C.)

7. When a tenant for life, with remainder
to his issue as tenants in common in fee, con-

 

593

veyed the lands as if he had the fee therein,
to a purchaser in 1794, and died in 1820, and
the children filed a bill in 1837 against the
purchaser, claiming under the articles, and
praying a specific execution of them—Held,
that there was not such acquiescence upon
their parts as enabled the Court, exercising its
discretion under 3 & 4 W. 4, c. 27, s. 27, to
refuse them relief. Thompson vy. Simpson, 1
Dr. & War. 459. (C.)

8. Quere—Whether 8 & 4 W. 4, c. 27, ap-
plies to the case of a charity—Att.-Gen. v.
Persse, 2 Dr. & War. 67. (C.)

9. Semble—The title of an archbishop to a
rent payable to him in respect of his see, is not
barred by the twenty years’ non-claim of his
predecessor.—Archbishop of Dublin v. Lord Trim-
leston, 2 Dr. & War. 535. (C.)

10. Granting an estate to A. to hold “ sub-
ject to” a charge, does not make the grantee
a trustee, so as to prevent the bar of the
Statute of Limitations.—Hughes v. Kelly, 5
I. E, R. 286; 3 Dr. & War. 482; 2 Con. & L.
223. (C.)

11. When lands are devised, charged with
payment of a legacy, the trust, though express,
is within the 3 & 4 W. 4, c. 27, s. 40, and not
within sec. 25. Those two sections deal with
different subjects. The 25th relates to lands
and rent. The 40th relates to money charged
on land.—Knor v. Kelly, 61. E. R. 279. (R.)

12, V. devised lands to trustees and their
heirs, to grant and convey them to J.’s use for.
life, subject, nevertheless, to and charged with
four annuities, to commence upon the death
of X. Three were payable to three different
charitable institutions, two of which were
corporate bodies; and the fourth to the poor
of a parish; after J.’s death, subject to the
anuouities, to the use of his first and other
sons in tail. V. directed the annuities to be
paid (not saying by whom) on the days there-
in mentioned, and expressly charged his estate
with them. A. died more than twenty years
before the filing of the bill to establish the
charitable devises. No payment or other sa-
tisfaction was ever made in respect of the
annuities. No conveyance had been executed
by the trustees; but J. had. since V.’s death,
been in possession of the estates. J. and his
eldest son had suffered a recovery thereof,
and had re-settled them. Held, that the right
to recover the annuitics was not barred by
the 3&4 W.4, c. 27; the trust for the chari-
ties being express within sec. 25.

Charities, equally with other trusts, are
within the operation of that Act.— Commrs. of
Ch. Donations vy. Wybrants, 7 I. E.R. 510; 2
Jon. & L. 182. (C.)

13. In1814F.,indebted to C. in £800, granted
an annuity of £100 to secure the debt. The
annuity was issuable out of the lands of D.
(held by F. under lease from C.), and was to
be held until thereby the £800 and interest
was paid. F. covenanted to pay the annuity.
In 1815 C. assigned £798, the sum due on foot

75
594

of the £800, and the annuity to H.; and cove-
nanted that the annuity should be regularly
paid. Being entitled to £2000, charged on
lands whereof he was tenant for life, C., as a
further security, assigned £800, part of the
£2000, upon trust, if the annuity remained
unpaid for 41 days, then from time to time to
call in and receive such parts of the £2000
as should suffice to satisfy the arrears, and ap-
ply those parts in paying the arrears; after
payment, in trust for C. In 1816 the annuity
was in arrear for more than 41 days, but pay-
ments on foot of it were made up to October
1821. In 1820 C. evicted the lands for non-
payment of rent, and died in 1824. Under a
decree (in a suit instituted in 1839) to take
an account of the incumbrances affecting the
land charged with the £2000, the Master re-
ported that the principal which, in October
1821, was due on foot of the £798, was still
due ; and that the residue of the £2000, after
paying that sum, was due to C.’s personal re-
presentative, who took an exception. Held,
that H.’s demand was not barred by the 3 & 4
W. 4., c. 27, s. 40; that the trust created by
the deed of 1815 was a continuing trust, not to
be executed once for all; and that a present
right to receive the £800, within sec. 40, did
not accrue upon non-payment of the annuity
during 41 days.

C., entitled to money charged on land, as-
signed it in trust to secure payment of a debt;
and, after such payment, in trust for himself.
Held, that as against his creditor he could not
insist that the Statute of Limitations barred
the trust.—Heenan v. Berry, 2 Jon. & L. 303.

AC).

1, An estate was assigned in 1786, on trust,
by sale or mortgage to raise £500 for children’s
portions, subject thereto in trust for the set-
tlor. In 1792 the settlor, by a conveyance ex-
pressly referring to the settlement, conveyed
to A., who paid him the purchase money, ex-
cept £500, for which he confessed a judgment
to the trustees, which was not to be called in
till the trusts of the settlement were fulfilled.
In 1805 A., on his daughter’s marriage, se-
cured a jointure on the lands. He died, hav-
ing devised the lands on trust to pay his debts,
and subject thereto to a devisee, who became
insolvent, and acknowledged the £500 as a
debt in his schedule. In 1812 the trustee of
the settlement assigned the judgment to X.,
who had become entitled to the £500 under the
settlement. In 1845 A.’s daughter relied on
the{Statute of Limitations in bar of the £500
as against her jointure. Held, that*it con-
tinued secured by an express trust, and was
not barred. Blair v. Nugent, 91. E. R. 400; 3
Jon. & L. 650. (C.)

2. A trust in a will for the payment of debts,
although an express trust, does not fall within
the 25th sec. of the 3 & 4 W. 4, c. 27, the sub-
ject of that section being land or rent, in
which it is impossible, from the interpretation
clause, to comprise a gross sum of money
charged on the estate.

Whether, where there is a trust for payment

 

[STATUTE OF LIMITATIONS.]

of debts, the case falls within the 40th sec.—
Queere ?

Whether a devise of lands charged with, or
subject to testator’s debts, creates an ex-
press trust—Quere? [See Francis v. Grover, 5
Hare, 39.]

The plaintiff, by bill, filed in 1846, to raise
the amount of a judgment of 1781, did not
state that the judgment had been revived,
or that any payment had been made of any
part of the principal or interest, or that there
was any acknowledgment in writing of the
right thereto; but stated a suit instituted for
the same purpose in 1808 by the persons then
entitled to the judgment, against the execu-
tors and devisees of the conuzor and others;
which bill stated that the conuzor of the judg-
ment died on the 3rd of March 1803, having
first made his will, duly attested, and thereby
charged his debts on his real estate, and
created an express trust for payment of his
debts. The date of the will was not stated.
Held on demurrer, that the Statute of Limita-
tions was a bar to the plaintiff's demand, a
devise for payment of debts not preventing
the setting up the statute where the time had
run before the testator’s death.

That even assuming the plaintiff was en-
titled to the benfit of this suit of 1808, nothing
was stated on the bill to take the case out of
the operation of the 8 G. 1, c. 4, the statute in
force when the suit of 1808 was instituted.
Young v. Wilton, 10 I. E.R. 10. (R.)—[Affd. ;
ibid, 265. (C).]

3. When a testator, in the introductory part
of his will, directs that all his just debts shall
be paid ; and then devises his lands, subject to
that payment, to trustees to convey, &c., a
trust is created by the will for the payment of
debts, the lands being vested in the trustee to
raise their amount by the execution of a trust ;
and the right of a judgment creditor is not
affected by the 40th sec. of the 3&4 W.4, c.
27; or if it be, is taken out of that sec. by the
saving of the 25th sec.

Aliter—if a mere charge upon lands, in the
hands of the owner beneficially entitled, creat-
ing a liability but not a trust. —Hunt v. Bate-
man, 10 I. E. R. 860. (C.)

4, A devise of lands to A. for life, subject to
all the testator’s just debts, legacies and fu-
neral expenses, with a bequest of his personal
property to A., the better to enable her to pay
his debts, &c., does not prevent « judgment
debt of the testator from being barred by the
40th sec. of statute 3 & 4 W.4, c. 27, or create
a trust for the creditor within the 25th sec.

The distinction between charges on+lands
and trusts for debts considered, and the se-
veral cases on their effect in reference to the
Statute of Limitations reviewed.

Counsel for an incumbrancer, whose charge
is stated in the bill, but not proved in the
cause, will not be heard against the plaintiff’s
rights.—Dundas v. Blake, 11 I. E. R. 138. (C.)

5. The action or suit by which arrears of in-
terest ‘shall be recovered” under the 3&4 W.
4, c. 27, s, 42, is the charge filed in a cause, not
(STATUTE OF LIMITATIONS.]

the sci fa. Therefore the party is entitled only to
six years’ interest from the filing of the charge.
—Hutchins v. O'Sullivan, 11 1. BE. R. 443. (R.)

1. By R.’s marriage settlement in 1767, £1500
were secured for portions for the younger
children ; that sum to be apportioned as R.
might think fit. In 1806, R.’s daughter (a
younger child) married G. Upon that mar-
riage, R. executed two bonds to secure two
sums (£1000 and £500), payable on his death:
the former not to bear interest until his death,
the latter to bear interest from the date of the
bonds. These bonds were accompanied by
warrants of attorney upon which, however,
judgments were not ever entered up. A mar-
riage settlement, of even date with the bonds,
vested them in B. (son and heir-at-law of R.)
and J., as trustees (they being so described in
the bonds), on trust to pay the interest to G.
and his wife during their lives: after their
deaths, for their children in such shares as G.
should appoint; otherwise equally. No ap-
pointment was ever made. In 1807, B. mar-
ried. A settlement, then executed, conveyed
R.’s estates to trustees, for 300 years, on
trusts whereof one was to ralse £5000, and
apply it, in the first instance, in paying the
£1500, the portions for R.’s younger child-
ren: to apply the balance in paying such
specialty debts as “are now due and owing”
by R: and to pay the residue, if any, to R.
Subject to this term, the estates were con-
veyed to R. for life, to B. for life, to B.’s first
and other sonsint.m. R. died in 1816, and
B. entered into possession of the estates. R.’s
widow took out probate to his will, and received
general assets to the amount of £7500. In
1836, B. died. Interest on the money secured
to G. was paid during B.’s life by his agent,
and also during the life of C., B.’s son, who
had succeeded, under the settlement of 1807,
to the estates. In 1844, part of the £5000 was
raised, and the £1500 secured by the settle-
ment of 1767 were paid, but the £1500 secured
by the bonds were not raised. In 1846, G.
died. There was not any evidence that in-
terest had been paid after hisdeath. In 1848,
G.’s children filed their bill against C., E. (a
brother of theirs who had, for the purposes of
the suit, taken out administration de bonis non
to R.), and against the possessor of the term.
The bill prayed that the money secured by the
bonds might be paid out of the term, &c. An
enquiry and accounts were.directed, and a re-
port made and confirmed on further directions.
On appeal against the original decree, and
against the decree on further directions—
Held, that under the special circumstances, the
suit was maintainable ; that, though B.’s per-
sonal representative was primarily liable, yet,
since the trustees of the bond debt could only
sue the actual possessor of the term, since he
must then sue C. as holder of the estate sub-
ject to the term, and since C. besides being
the holder of that estate, was also representa-
live of B., a trustee of the bond debt under
the settlement of 1806,—a Court of Equity,
seeing that all the really interested parties
were before it, would not, especially after an
enquiry and report, dismiss the bill for matter

 

595

of form, and thus create a necessity for a mul-
tiplicity of needless suits.

That the settlement of 1806 created a
trust in respect of the bond debt; that that
debt was not, within the words of the settle-
ment of 1807, a debt of R. then “due and
owing,” but that it would have been so had the
trustees performed their duty by entering
judgments on the warrants of attorney; and
that C., as owner of the estate, could not set
up their neglect in this respect as a defence ;
C. himself being also representative of the sur-
viving trustee, and, as such, bound to obtain
payment of the money secured by the bonds.

[By Lord Wensleydale]—That these bonds
constituted equitable charges on the lands.

Held, that the Statute of Limitations did not
bar this suit; an express trust of a charge on
land being, by the true construction of that
Act, as much saved from its operation as an
express trust of the land itself; and, as C. re-
presented his father (the surviving trustee of
the bonds), and himself owned the estate out
of the term in which these bonds were, under
the deed of 1807, to be satisfied, he was at once
the hand to pay, and the hand to receive, and
therefore could not set up the Statute of Li-
mitations as his defence for not performing
the trust. Held, that the right of the c. g. ¢.
did not arise till the death of G.; and that
that Act did not, in fact, apply to them, be-
cause they had brought their suit within two
years afterwards.— Burrowes v. Gore, 6 H. L
Cas. 907._[Aifg. decrees of the Court of Ch.
in Ir.]

2. In 1811 T. executed a bond, in which his
heirs were not bound, and on which he paid
interest until his death in 1820. T., by will,
left all his property to W., and directed that
all his just debts, legacies, and funeral ex-
penses should be paid by W., whom he ap-
pointed executor. W. proved the will, and
aliened the lands in 1821 without receiving a .
pecuniary equivalent. He, however, paid in-
terest on the bond until he died in 1843. The
parties claiming under the deed of 1821 paid
interest up to 1849, under a mistaken belief of
their liability. A cause petition was filed in
1853 to recover the amount of the bond from
the representatives of W. Held (affirming the
Rolls decision, 2 I. C. R. 648), that the claim
against W., being founded on a breach of a
trust created without a specialty executed by
him, was a simple contract debt, and as such
barred by the Statute of Limitations, 10 Car.
1, sess. 2, e. 6, s. 3(Jr.)—[Dunne v. Doran, 13 I.
E. R. 546, supported. ]—Brereton v. Hutchinson,
81C.R. 361. (C.)

3. By deed of settlement on the marriage of
S. and N., securities for money were assigned
to B. and F., on trust to invest the amount
which they might thereafter receive, with the
consent of S. and N., on trusts for the benefit
of S. and N., and their children. F. refused
to execute, or act under the settlement. The
securities were not called in, and the sums due
thereon were lost. B., who had executed this
settlement, died in 1841. Held, that there was
not any specialty debt created against B. or
596

his assets, by his omission to call in the amount
due on the securities, there not being any ex-
press or implied covenant in the deed that he
would call them in; and that, six years from
B.’s death having elapsed, the remedy against
his assets was barred by the Statute of Li-
mitations.

Mere omission to perform a duty arising out
of a deed does not create a liability in the
nature of a specialty debt, unless there be in
the deed words from which a covenant to per-
form that duty may be implied. Newport v.
Bryan, 51. C.R.119. (C.)

1. A., by will, in 1809, devised £470 to her
daughter E., the interest to be paid to B., the
husband of E., “until the time hereinafter
limited and appointed for the payment of the
said legacy of £470—that is to say,” in case
E. should survive B., the legacy and interest
were to be for her andher children; but if she
died before B., leaving issue, the legacy was
to be placed out at interest for the benefit of
the issue, and paid to them on their respect-
ively attaining age; if no issue, the legacy
was to be divided between M. and T. The
will empowered the executor to advance the
£470 to B. on approved security.

In 1811, the executor advanced £470 to B.
on the security of a mortgage on lands belong-
ing to B.’s father. B. and his father joined in
the mortgage. E. died in 1827, leaving issue.
B. died subsequently, within 20 years before
the presenting of the petition for sale of the
mortgaged lands. The issue attained age within
the same period. No interest had ever been
paid on the mortgage up to the presenting of
the petition, a period of more than 40 years.
Held, that B.’s interest in the trust fund deter-
mined on the death of his wife in 1827, and
that as more than 20 years from that period
had elapsed without payment of interest, the
mortgage was barred by the Statute of Limi-
tations.

That there was no express trust created in
the owner of the lands, within the meaning of
the 25th sec. of the 3&4 W. 4, ¢. 27.—In re
Scott, 81. C. R. 316. (1.E.C.)

 

V. How tHE OPERATION OF THE STATUTE
IS PREVENTED OR DELAYED; OR ITS
ADVANTAGES OBTAINED.

2. A defendant, who does not by pleading
claim the benefit of the Statute of Limitations,
cannot rely upon it in the office in bar of the
account.— Walsh v. W., Jon. & Car. 52. (E.E.)

3. A judgment of revivor in sci. fa. on a
judgment, confers on the conuzee a new pre-
sent right to receive the amount of the origi-
nal judgment, within the meaning of 3 & 4 W.
4, v. 27,8. 40; and the twenty years commence
to run from the date of the revivor, and not
from the date of the entry of the original judg-
ment.— Crofts v Hewson, 2 Jon. 499. (E.E.)

4. Quit rent is a perpetual charge, vested in
the crown, annually issuing out of an estate
in fee. It is a charge which may be enforced
-after any period of time. It does not allow of

 

[STATUTE OF LIMITATIONS.]

a prescription to discharge it; and, being
vested in the crown, is not bound by the Sta-
tute of Limitations Hatton v. Waddy, 2 Jon.
548. (E.E.)

5. Notwithstanding the 3& 4 W. 4, c. 27, s.
40, the revival of a judgment by sez. fa. within
20 years is sufficient to enable a party to
proceed at Law or in Equity, to recover the
sum thereby secured, although more than 20
years have elapsed since the rendition of the
original judgment.—Ryan v. Cambie, 2]. E.R.
828. (1.E.)

6. Semble—When time has begun, during a
debtor’s lifetime, to run against a debt, it does
not upon his death cease to run, but continues
to run, though there be not any representative
of the debtor whom the creditor could sue.—
Howlett v. Lambert, 21. E. R. 254. (R.)

7. A creditor’s suit was commenced before
the passing of the 3&4 W.4, c. 27. Held,
that the claim of a judgment creditor, who
subsequently came in and proved his debt in
due course under the decree, was unaffected
by the operation of that Statute. Otherwise,
had it been necessary to make a special ap-
plication to the Court for liberty to prove the
debt, grounded upon a denial of the creditor’s
knowledge of the existence of the suit.—
O'Kelly v. Bodkin, 21. E.R. 361. (H.E.)

8. When a defendant seeks to have the
advantage of the 3&4 W. 4, c. 27, s. 42, he’
must in general rely upon it in his pleading.
Semble—But when a third party (the mortga-
gee of the person who created the charge, to
raise which the bill was filed) omitted to rely
upon the Statute expressly, but, in his an-
swer, denied the existence of the debt in such
terms as was considered to amount substan-
tially to a reliance upon the Statute, the
Court would not deprive him of the benefit of
the Statute; but holding that the question
upon the bar of the Statute, was for the
Court, and not for the officer, the plaintiff,
under the circumstances, was allowed to make
out any case he was able before the officer, to
bring his claim within either of the exceptions
in the Act, and the officer was directed to
report specially thereon.— Cummins v. Adams,
21. E.R. 393. (E.E.)

9. When, in an affidavit by the respondent,
in a petition for a receiver on a judgment, he
denied that the sum claimed by the petitioner
was due, but stated “that the entire sum
due on foot of the judgment, &c., is £474. 8s.,
besides costs, which this deponent is advised
he is not liable to,”— Held, that he was there-
by precluded from insisting on the Statute of
Limitations as a bar to the full amount of
that sum ; this being a sufficient acknowledg-
ment within3&4 W. 4, c. 27, s. 40.—Tristram
vy. Harte, 31. E. R. 386; L. & T. 186. (E.E.)

10. Under a decree to account, a creditor
filed a charge on foot of a judgment, which
was disallowed on the ground that it had been
barred by the Statute of Limitations. The
creditor then issued a sev. fa. against the in-
heritor, heir of the conuzor; to which, the
[STATUTE OF LIMITATIONS. ]

fund being a deficient one, no defence was
taken, and the judgment was revived. The
Court allowed the creditor liberty to file a
charge, and obtain a report at her own ex-
pense, but directed the officer, in considering
the Statute of Limitations, not to act upon
the judgment of revivor, so far as regarded
the rights of the other creditors who had
proved under the decree—Browne v. Lynch,
Jon. & Ca. 195; 831. E.R.191. (B.E.)

1. A creditor who does not come in regu-
larly to prove his demand under the decree
to account in a creditors’ suit, but obtains an
order for liberty to file a charge, and obtain
a separate report at his own expense, upon an
affidavit stating that he was ignorant of the
existence of the suit until after the decree to
account was pronounced and the report there-
under made, cannot rely on the suit, as being
his from the beginning, so as thereby to avoid
the bar of the3 & 4 W.4, c. 27,8. 42.—O’ Kelly
v. Bodkin, 81. E. R. 890. (E.E.)

2. Judgment was obtained by V. on a joint
bond and warrant of attorney, against A. and
B. in 1815, A. being the principal debtor. On
the 16th March 1820, A. wrote to V.’s agent,
“You have enclosed £250 to my credit, on
account of V.’s interest.” And in the account-
book kept by V.’s agent (since dead) ap-
peared an entry by the agent, of the 17th
March 1820, charging himself with a bill for
£50, drawn by A., and £100, in cash from A.
In 1822, V.’s attorney applied by letter to B.,
the surety, for payment of the debt. B. then
wrote to V.’s attorney, acknowledging the
receipt of his letter, “applying for payment
of his (B.’s) and A.’s joint bond.” Soon after,
B.’s agent}wrote a letter to V.’s attorney, en-
closing a proposal of terms upon which the
matters should be arranged by A., and said,
“this being done, it is hoped the judgment
against B. will be satisfied.” The bill was
filed in 1839, against the tenant for life, by a
settlement of 1817, of the estates of B. Held,
that there was sufficient payment and acknow-
ledgment to take the case out of the 3 & 4 W.
4,¢. 27. Payment of part of a debt, or in-
terest by principal, takes the debt out of the
statute as against the surety.— Vincent v.
Willington, Long. & T. 456. (E.E.)

3. The 8 G. 1, c.4 (Statute of Limitations),
does not extend to crown bonds or recogni-
zances, although the Crown is but a trustee
in them for a subject.

A demurrer to a plea of payment founded
on that statute, put in to a ‘scz. fa. on a re-
ceiver’s recognizance, was therefore overruled.
Reg. v. Bayley, 4 I. HE. R. 142; 1 Dr. & War.
213. (C.)

4. A written acknowledgment of title, by
a@ person in possession, to claimant or his
agent, preserves the right of claimant from
being barred; and the right is to be deemed
to have accrued at the date of such acknow-
ledgment—3 & 4 W. 4, c. 27, s. 14.

When the party in possession entered into.a
treaty with claimants, which was in itself an

 

597

implied recognition of their rights, and during
such treaty wrote, to claimants’ agent, letters
which contained references to their rights,
but no direct acknowledgment thereof—Held,
that they constituted a sufficient acknowledg-
ment within the 14th sec. of 3 & 4 W. 4, c.
27.—Incorporated Society v. Richards, 1 Dr. &
War. 258; 1 Con. & L. 58; 4 1.E. R.177. (C.)

5. The mere issuing of a sci. fa. to revive a
judgment, is not a sufficient proceeding to
take the judgment out of the operation of the
3&4 W.4, c. 27.—Brown vy. Lynch, 41. E. RB.
316. (E.E.)

6. A return made by an insolvent in his
schedule is asufficientacknowledgment, within
the 42nd sec. of 3& 4 W. 4, c. 27.

Semble—That, although the Master’s report
in favour of a judgment creditor may not
constitate an acknowledgment, yet it confers
a new right to receive the money, and thus
forms a new terminus, whence the bar of the
Statute will run.—Barreit v. Bermingham, 4 I.
E, R. 5387; Fl. & K. 556. (R.)

7. The appointment of a receiver over an
estate will not prevent the operation of the
Statute of Limitations on demands against
that estate.

The fact of the Master having reported the
demand as an existing incumbrance will not
take it out of the Statute.—Aarrison vy. Dig-
nam; Kyme v. Dignam, 41. E.R. 562; 2 Dr.
& War. 295; 1 Con. & L. 376. (C.)

8. An assignment of property, of his own
and his testator, by a defaulting executor, in
trust to pay the creditors of the deceased—
Held, to prevent the Statute of Limitations
from barring the rights of those creditors to
call for an administration of the estate of the
deceased.— Byrne v. B.,1 Flan. & K. 483. (R.)
{Confirmed on appeal, 1 Con. & L. 189; 2 Dr.
& War. 71; 41. E. R. 621. (C.)]

9. The testator died in 1811. S. entered,
&e., and, in 1825, died without having paid the
legacies. T., who took a quasi estate tail
under the will, sold part of the lands; and,
having devised the remainder, died in 1833,
leaving the legacies unpaid. On the 3lst of
December 1833, the legatees filed a bill for
payment by sale of A.’s real estate, against
the heir-at-law of A., the devisees of T., and
the persons who purchased from him, with
notice of the legacies. No subpcna to ap-
pear and answer that bill was served. On
the 24th December 1841, the legatees filed
another bill, stating the filing and purport of
the bill of December 1833, “as by said origi-
nal bill of record will appear ;” and, relying on
the filing of that billas a bar to the Statute of
Limitations, prayed that A.’s will might be
established, &c.; that the legacies might be
decreed well charged on his real estate; for
the usual accounts; and, if necessary, for a
sale, &c. On general demurrer to this bill,
which was not described in any part of it ag
an amended bill, but was filed and marked as
such by the proper officer—Held, that the bill
598 [STATUTE OF

of 1841 should be considered as an amended
bill; that the suit was pending from the date
of the filing of the original bill in 1833; and
that the filing of that bill, without service of
subpeenas, was sufficient to save the plaintiff’s
demand from being barred by the Statute of
Limitations, 3 & 4 W. 4, c. 27, s. 40.—Boyd v.
Higginson, 5 1. E. R. 97; Fl. & K. 603. CR.)

1. The Statute of Limitations cannot be
relied upon by a deft. who has not made that
case by his answer.—Purcell v. Cole, Long. &
T. 454. (E.E.)

2. The appointment of a receiver, though
it does not prevent the bar of the Statute
from operating agaiust a stranger, will serve
to prevent, at least in this Court, time from
running in favour of a stranger to the suit.

A properly instituted suit in a Court of
Equity prevents time from running.— Wrixon
v. Vize,5 1. E.R. 173; 3 Dr. & War. 104; 2
Con. & L. 188. (C.)—[Affg. 41. E.R. 463;
2 Dr. & War. 192; 1 Con. & L. 298. (C.)]

3. Granting an estate to a man to hold
“subject to” a charge, does not make the
grantee a trustee, so as to prevent the bar of
the Statute of Limitations Hughes v. Kelly,
2 Con. & L. 223; 3 Dr. & War. 482; 51. E. R.
286. (C.)

4, There is no saving of minority given in
the 15th sec. of 3&4 W. 4, c.27; and, there-
fore, the period of five years given by the
section cannot be extended by reason of the
infancy of the claimant.—Scott v. Nixon, 3 Dr.
& War. 388; 61. E.R.8. (C.)

5. A., upon his marriage in 1815, being
entitled under a will to a contingent interest,
by way of a shifting use, in an estate, con-
veyed it by lease and release to the use of
himself for life, remainder among the issue of
the marriage in the usual course of strict
settlement, with the ultimate reversion to
himself and to his heirs. In 1810 the event
upon which he became entitled to the posses-
sion occurred, but he did not take possession.
In 1827, upon his second marriage, he, by deed
reciting that under the settlement of 1815 he
had a reversion in fee, expectant upon the
failure of issue male of the former marriage,
covenanted to settle the reversion upon the
issue of the second marriage. A. died in 1835,
and the issue male of the first marriage in
1843. In 1841 the issue of the second mar-
riage filed their bill against the person from
whom the estate should have shifted in 1815,
praying that they might be declared entitled
to the estate. Held, that they stood in the
place of A., and that the bar of the Statute of
Limitations commenced to run against them
from 1816; a person not being able, after the
Statute has commenced to run, to create new
rights by executing settlements of the estate
which he claims.— Stackpoole v. S., 2 Con. & L.
489; 61 E.R.18. (C.)

6. A bill was filed in 1819. The plaintiff
died in 1825. A bill of revivor was filed in

 

LIMITATIONS. ]

1828, and the defendants continuing during
all that time out of the jurisdiction, no sub-
peena had, or could have been served on either
bill. One of the defendants having died in
1835, w bill of revivor was filed in 1838, and
the service of subpcena effected under 2 W. 4,
c. 33—Held, that the bill of 1828 prevented the
bar of the Statute of Limitations.

Semble—The bill of 1819 would of itself have
had that effect.

Payment by an agent of a sum of money ‘on
account of the whole debt.—Held, to take the
case out of the Statute of Limitations—
Foster v. Thompson, 6 I. E. R. 168; 2Con& L.
568. (C.)

7. By letters patent of 31 Car. 2, the lands
of H. were granted to A. in tail male. A
rent of three pence per acre, the amount of
quit-rent prescribed by the Act of Settlement,
was reserved. In 1681 A: conveyed the lands
to S. and his heirs, saving the estate and right
ofthe Crown. In 1776 the estate tail deter-
mined by failure of the issue male of A. The
representatives of §. remained in possession
of the lands down to the filing of the bill, in
1841, and dealt with the estate as an absolute
estate in fee. The rent reserved by the letters
patent was regularly paid to the proper officer,
and the usual receipt given for it as quit-rent.
Held, that the right of the Crown to the land
on the determination of the estate in tail, was
barred by the 48 G. 3, c. 47, the case not
coming within any of the exceptions in the first
section of that Act.— Tuthill v. Rogers, 61. E. R.
429; 1 Jon. & L. 36. (C.)

8. A bill filed, not on behalf of all a testa-
tor’s creditors, against his personal representa-
tive, does not keep alive against him specialty
creditors’ demands. In such a case—Held,
that the demand was barred by the lapse of
time.—Busby v. Seymour, 7 I. E. R., 483; 1
Jon. & L. 527. (C.)

9. A suit was instituted in 1797 for the ad-
ministration of real and personal assets. X.,
a creditor, filed a bill to establish an unliqui-
dated demand by specialty against the realty
in 1804, and obtained a decree and a judg-
ment ascertaining his demand in 1822. There
were various proceedings in the suit of 1797,
in which demands similar to X.’s were recog-
nised as binding the estates; and there was a
sale in 1816, and, for the protection of the
purchaser, a portion of the proceeds was in-
vested till X.’s suit should be determined. X.
died in 1822; administration to him was
obtained in 1841, in which year the adminis-
trator came in under an advertisement for
creditors in the first suit to prove X.’s demand
against the fund invested. Held, that the
principle of Sterndale y. Hankinson (1 Sim.
393) applied, and the demand was not barred
by the Statute of Limitations —Bermingham v.
Burke, 91. E. BR. 86; 2 Jon. & L. 699. (C.)

10. A judgment, barred by the 8 G.1,c. 4,
before the 3 & 4 W. 4, c. 27, passed, is not
resuscitated by a written acknowledgment
[STATUTE OF LIMITATIONS.]

given after the latter Act passed.—Clon-
curry vy. Piers, 9 I. E. R. 407; 3 Jon. & L.
573. (C.)

1. A bill filed in time will take the case out
of the operation of the Statute of Limitations
as against the parties to it, though they have
not been served with the subpena within the
time.— Purcell v. Blennerhassett, 91. EB. R. 108 ;
3 Jon. & L. 24. (C.)

2. From 1782 to 1839 persons claiming under
a sub-lease paid their rent directly to the head
landlord. Those claiming under the head
lease of 1782 neither received nor paid any
rent, nor was their title acknowledged by the
head landlord, save that in 1833 they were
served by him with an ejectment for non-pay-
ment of rent. Quere—Was their title barred
by the Statute of Limitations?—Drew v. Lord
Norbury, 91. E. R. 524; 3 Jon & L. 267. (C).

 

8. In 1821, A. and B., creditors of D., de-
ceased, jointly advanced money to save D.’s
leaseholds from eviction for, non-payment of
rent. As between themselves the money was
advanced in equal moieties. To a bill filed
by B. against A. and D.’s devisees in trust to
raise that money, the trustees in 1824 put in
an answer admitting payment of the salvage
money. In a suit instituted in 1844 to sell
D.’s estate, A. filed a charge on foot of his
salvage claim. Held, that the acknowledg-
ment contained in the answer of 1824 took
the claim out of the bar of the 3 &4 W.4,
c. 27, s. 40.—Blair v. Nugent, 9 I. E. R. 404;
8 Jon. & L. 673. (C.)

4, A debtor wrote to X. a letter, which was not
to be opened till his death, and was to be con-
sidered as his will, in which he directed X. and
other creditors named, to be paid as soon as
X. could get funds in hands. In a suit to
administer the debtor’s assets the Statutes of
Limitations were relied on against X., whose
demands, by judgment and simple contract,
were more than 20 years old at the debtor's
death. Held, they were not barred.

Executors or administrators may retain for
debts barred by the Statute of Limitations,
though it is set up by the legatees or next-of-
kin.— Clinton v. Brophy, 10 1. E. R. 139. (C.)

5. In a mortgage cause, begun prior to the
New Rules, a supplemental bill, making a puisne
judgment creditor a notice party, was filed
within 20 years of the rendition of his judg-
ment. The decree was obtained, and his
charge was filed after the 20 years had ex-
pired. Held, that the suit was one the
pendency of which prevented the operation of
section 40 of the Statute of Limitations (3 &
4 W. 4, ¢. 27).

The pendency of a suit when statute 9 G. 4,
c. 35, passed, does not dispense with the
necessity for redocketing or reviving a judg-
ment under section 3 of that Act.—Joyce v. J.,
101. E. R. 128. (C.)

6. By a decree in 1814, in a suit instituted
by the heir-at-law of the debtor, the pro-
ceedings of the creditors under a decree in

 

599

1808 were stayed until a decree in 1836. Held,
that the defendant in the present suit institu-
ted in 1846, who was assignee of the insolvent
heir, could not rely on the Statute of Limi-
tations, the decree in 1808 being ‘“‘a proceed-
ing” that would, under the old Statute, entitle
the creditors to sue for 20 years, previous to
the expiration of which the suits were stayed
until 1836, when under the new Statute the
creditors had a present right to receive their
debts.

A Court of Equity will not permit a party
to rely on the interval of time during which
he has himself stayed his creditor, in order to
set up the Statute of Limitations.—Baylee v.
Browne, 101. E. R. 180. (R.)

7. A letter simply acknowledging a debt,
implies a promise to pay; butif it also points
out a particular mode of payment, it is there-
by qualified, and will not take a simple con-
tract debt out of the Statute of Limitations.—
In ve Littles, 10 I. E. R. 275. (C.)

8. A bill in 1846, to raise the amount of a
judgment of 1781, stated a previous bill in
1808 by the person then entitled, against the
executor and devisees of the conuzor, who, by
will, in 1803, charged his debts on his real
estates. The judgment had not been revived,
nor was any payment made on foot of it.
Held, that the demand was barred by the
Statute of Limitations.

A decree on sequestration is only a con-
ditional decree, and will not prevent the
operation of the Statute of Limitations or of
the 81st G.O. An order for the appointment
of a receiver in several causes, directing all
parties to come in under one cause, will not
take the case out of the operation of the 81st
General Order.

Though the wisdom of the rule may be
questioned, the Court cannot depart from it
unless in the case of some clear and plain
exception. — Young v. Wilton, 10 I. E. R. 265.
(C.)—[Affg. 10 I. E.R. 10. (R.)]

9. The construction applied to Lord Ten-
terden’s Act, that an acknowledgement, to
take a simple contract debt out of the opera-
tion of the Statute of Limitations, must
amount to a promise to pay, is not applicable
to acknowledgments under Statute 3&4 W. 4,
c. 27, s. 40; and therefore letters recognising
the existence of a judgment debt, though
qualified by an offer of payment from a fund
stated to be the only one available—Held, a
sufficient acknowledment under the latter Act.

Semble—The doctrine of Sterndale v. Han-
kinson (1 Sim. 393), by which a creditor, prov-
ing under decree, may avail himself of the
pendency of the suit to save his demand from
the Statute of Limitations, applies to suits in-
tituted after as well as before the passing of
statute 3& 4 W. 4, c. 27.

The circumstance, that a judgment creditor
has, pending the suit, proceeded by sci. fa., is
not such a repudiation of the suit by him as
will disentitle him from relying on this
doctrine.
600

A judgment in case carries interest under
statute 3 & 4 Vic., c. 105, s. 26, even as against
creditors whose charges are prior to the pass-
ing of that Act.

A judgment less than 20 years old when the
statute 9 G. 4, c. 35, was passed, and not
redocketed within five years after the Act, or
20 years after its entry, is, as against pur-
chasers both before and since the Act, but
claiming under deeds within 20 years of the
entry of the judgment, valid by the operation
of statute 7 & 8 Vic., c.90, s. 7, whatever be
the true construction of the 2nd section of the
Redocketing Act.

The practice of giving priority to costs of
resisting claims in creditors’ suits observed on.
—Carroll v. Darcy, 10 I. E. R. 321. (C.)

1. A father, tenant for life, remainder to
his son, joined with the son in executing a
post-nuptial settlement by which the father and
son assigned the lands in trust for the father
for life, subject to an annuity for the son; and
after the father’s death in trust for the son,
subject to a jointure (charged by a pre-
existing deed), and charged with a sum for
portions for the younger children of the
father. The father and son afterwards joined
in a mortgage, which did not notice this
settlement. It contained covenants for title,
but not against incumbrances. Held, that the
settlement, as regarded the provision for the
younger children, was not voluntary or void
as against the mortgagee, nor revocable by the
father and son; and even if it was revocable,
was not revoked by the mortgage.

The doctrine that creditors or parties prov-
ing their demands under a decree are entitled
to consider the suit as theirs from the com-
mencement, so as to prevent the effect of the
Statute of Limitations, is not confined to
suits purporting to be on behalf of creditors
generally, but extends to an ordinary mort-
gagee’s suit for foreclosure and sale, in favour
of prior creditors proving charges on the
mortgaged lands.

Although a suit be totally abated by a sole
plaintiff assigning away his interest or be-
coming insolvent, it is yet capable of being
continued so as to allow the benefit of it under
this doctrine to creditors proving charges
under a decree made in a suit seeking the
continuance and benefit of the abated suit.
When the original plaintiff made an assign-
ment by deed for the benefit of creditors,
one trust of which was to continue the
abated suit, and original bills in the nature
of bills of revivor and supplement were
filed by the trustee and ac. g. t. of this
deed, stating it and praying the benefit of the
abated suit, the receiver appointed in which
was continued, a decree made and entitled in
the new suits only, without referring to the
abated one, but reciting among the evidence
the proceedings in it, was Held to be sucha
decree as entitled creditors proving charges
under it to the benefit of the abated suit for
this purpose.

The pendency of a suit has no effect in
preventing the operation of the Redocketing
Act, 9 G. 4, c, 35, against judgment creditors

 

[STATUTE OF LIMITATIONS.]

proving their demands under the decree; and
therefore, in a suit to raise a mortgage of 1810,
instituted in 1811, and revived in 1841, it was
Held, in 1848, that judgments entered between
1800 and 1810, but not redocketed within five
years of 1828, were void as against the mort-
age.

. The practical application of Lord Redes-
dale’s classification of bills observed on.—
Bennett v. Bernard, 10 I. E. R. 584. (C.)

2. Proceedings to a custodiam, under which
no money was received, irregularly taken by a
person equitably entitled to a judgment (under
an assignment, no memorial of which was
ever registered), are sufficient to prevent the
bar of the 8 G. 1, v. 4, set up in a suit after-
wards instituted by the same person to recover
the amount of the judgment. — Foster v.
M‘Mahon, 111. E. R. 287. (C.)

3. Judgments of 1810, revived in 1845 and
1846 on a sci. fa. sued out in October 1844.
Bill filed in 1823, and decrees in 1834 direct-
ing an account of incumbrances, and for a
sale in 1836. After an order of reference to
allocate the funds, the person entitled to the
judgments obtained leave to prove them, and
make up a separate report, on an affidavit
stating that he never was informed of the ex-
istence of the suit or the decrees, or that one
of the decrees enabled the creditors to prove
thereunder, until very lately ; and that he was
not aware of the scope and effect of the decree
until a few days before, when a copy was pro-
cured from the Registrar’s office by his solici-
tor. He filed a charge in April 1846, and the
Master reported him entitled to interest
amounting to the penalty of the judgments.
On objections to the report, the Court, follow-
ing Berrington v. Evans (1 Y. & C. Exch. 744),
and O'Kelly v. Bodkin (3 I. EB. R. 390)—Held,
that the suit and decrees did not save the bar
of the Statute of Limitations (8 & 4 W. 4, ¢.
c. 27, s. 42), and—

That the “action or suit” by which the ar-
rears of interest ‘“‘shall be recovered” under
sec. 42, was the charge filed in the cause, and
not the sci. fa.; and therefore that the party
was entitled to six years’ interest from the
filing of the charge only.— Hutchins v. O’ Sulli-
van, 111. E.R. 448. (R.)

4. Judgments were obtained in 1738 against
G., who was seized of the lands of A. and X.
In 1786 X. was conveyed toa purchaser. In
1840 the judgments were revived against the
heir of G. and the terre-tenants of A. Held,
that the revivor did not give a new present
right against X.to save the bar of the Statute
of Limitations.

Interest on the judgments was paid by those
entitled to the lands of A. until 1805, when
the judgments were assigned to a trustee for
B. and M., who were tenants for life of A.
No interest was actually paid from 1805 to
1837, when the judgments were again assigned,
and interest paid on them until 1841. eld,
that B. & M., being the parties bound to pay
the interest, and also beneficially entitled to
it, there was in contemplation of equity a pay-
[STATUTE OF LIMITATIONS.]

ment of interest from 1805 to 1837, which
saved the bar of the statute as against the
lands of X.—Kirkwood v. Lloyd, 11 I. E. R.
561. (R.)—[Varied on appeal, 12 I. E. RB.
585. (C.)]

1, A revivor against the heir of the conusor
‘of a judgment and the terre-tenants of one
estate of which he had been seized, does not
keep the judgment from being barred by the
Statute of Limitations as regards the owners

of another estate which had been previously

sold by the conusor.

[Martin v. M‘Causland, (3 I. Law Rep. 113)
is not law.]

A judgment was assigned to a trustee in
trust for the benefit of the tenants for life in
possession of the lands charged with it, who
in 1817 caused the trustee to declare a trust
for the daughter of one of them, with provisoes
that no proceedings should be taken on the
judgment until the latter attained age or mar-
ried, and that it should not be called in until
the other tenant for life died. Held, that up
to 1817, the same person being the hand to
pay and receive the interest, amounted to a
payment of it, so as to prevent the Statute of
Limitations applying, but that it began to run
in 1817.

The case of Executors Cummins v. Finn (de-
ciding that a judgment being held in trust for
the person in possession of the lands charged,
may be replied as a retainer of the interest in
answer to a plea of the Statute of Limita-
tions at law) cited and approved of.

A charge to pay interest on a judgment,
made on other property by the owner of lands
liable to the judgment, is not sufficient to pre-
vent the statute running in favour of the
owner of other lands originally charged with
it; and though the payment of interest by the
one owner before twenty years elapse would
keep it alive against the other—Quere, if ua
payment after the twenty years will set it up
again?

The question on an objection to title resting
on an old incumbrance is, whether it may be
binding on the purchaser? and therefore a
purchaser was discharged in consequence of
judgments more than sixty years old against
a former owner of the estate, which were in
force against other lands, though the only
matter to keep them out of the Statute of
Limitations against the purchaser was doubt-
ful evidence of payment of interest nineteen
years before they would have been barred.—
{Varying the Rolls order, 11 I. E. R. 561.}

Certain persons, described in the rental as
tenants at will, having been in possession of
part of the sold lands for several years, the
purchaser objected that they had acquired
estates by virtue of the Statute of Limitations.
Rent’ had been’ recently levied from, or paid
by some, under coercion of attachment or dis-
tress, and others,had admitted, but not in
writing, that they were tenants. Held that,
as to the former, the payments prevented the
operation of the statute; but as to the other,
the admissions, not being in writing, could
not be relied on as estoppels in answer to the
statute.— Kirkwood v. Lloyd, 12 I.E. R.585. (C.)

 

601.

2. A mortgagee’s suit for foreclosure and
sale, instituted in 1811, during the ‘life of a
debtor, is not such a suit as prevents the Sta-
tute of Limitations running against a judg-
ment creditor of his, because the judgment
creditor could not have instituted such a suit.
[The doctrine of Sterndale v. Hankinson (1 Sim.
393) and similar cases, observed on. ]—Bennett
y. Bernard, 121. E.R. 229. (C.)—[Revg. on
re-argument, 101. E.R. 584. (C.)]

3. Lands, subject to an ancient rent, were
sold in 1766, and the purchaser indemnified
against it by the vendor, who held other lands
similarly charged, and whose representatives
continued to pay it, no payment being made
by the owner of the sold lands since 1766—
Held, that the receipt of the rent was not dis-
continued as to the sold lands, and the Statute
of Limitations did not begin to run.—Arch-
bishop of Dublin v. Lord Trimleston, 12 I. E. R.
251. (C.)

4. An application by a creditor for liberty
to file a discharge to the charge of another
creditor, to raise the question of the Statute
of Limitations, was refused, there being consi-
derable neglect and delay on the part of the
applicant.— Kelly v. Rutledge, 21. Jur. 154. (C.)

5. In January 1843 A. filed his bill to raise
the amount of a bond debt, under the following
circumstances :—J. passed his bond for £2000
penal to his son (D.) and to K., as trustees
in the settlement executed on the marriage of
his daughter with C., the ptf’s. father, upon
the ordinary trusts, viz., to C. for life, then to
his wife for life, then amongst the children
pursuant to appointment, or in default share
and share alike. No appointment was made.
C. survived his wife, and died in 1842. The
entire became vested in plaintiff by assign-
ment. In 1803 J., the obligor, died, having
by his will devised, subject to the payment of
his just debts, &c., to his sons D. and B. the
lands of L., held in fee, and the lands of X.,
B., and G., held in f. f., as tenants in common,
and likewise appointed them his executors
and residuary legatees. They enjoyed L. as
tenants in common until the death of D. in
1824, from which time B. enjoyed them alone.
In 1806 D. and B. purchased the fee rent of
X., B., and G. with the personal assets of J.;
and from that time D. held the lands of G. in
severalty, pursuant to an agreement for a par-
tition previously entered into. In 1820 D.
agreed with the tenant of B. to sell G. free
from incumbrances to C. for £5000, to be
allowed out of two judgments amounting to
£10,000 obtained by C. against D. C. and his
son and heir, J. C., enjoyed the lands from
thence hitherto. D. and B. had agreed to-
gether, shortly after the death of their father,
each to pay a moiety of the bond debt; and
although C. was not entitled to receive the
principal of the bond, passed to C. their re-
spective bonds, in which were included those
moieties as well as personal debts. Judg-
ments were entered upon the bonds, and the
judgments out of which the £5000 were to be
allowed comprised one of the moieties. Pay-

16
602

ment had been made by B., or those repre-
senting him, on account of the judgment
obtained by C. against him, within twenty
years before the filing of the bill. The prin-
cipal defendants were J. D. B., son and heir
of B., and representing the lands of X. and
B., and a moiety of L.; J.C., the son and
heir of C., representing G., and Mrs. J. and
Mrs. M. B., co-heiresses of D., representing
the other moiety of L. Mrs. J. also represented
a chattel interest called A., that had been
enjoyed exclusively by D. from J.’s death
until its assignment by D. to Mrs. J. by volun-
tary deed.

The defendants J. D. B. and J. C. relied on
the Statute of Limitations. Held, that the
plaintiff's demand was not barred by the Sta-
tute of Limitations.

That though the dealings between the
brothers B. did not affect their liabilities as
regarded the plaintiff, still as between them-
selves it rendered each personally liable for a
moiety.

Held (Lefroy, B., dissentiente]—That the
agreement by D. with the assent of B. for the
sale of G. free from incumbrances, did not
render the lands of B. liable for the moiety of
D. in priority to G.

That the property of D. was liable for the
entire bond debt in exoneration of G.— Clarke
vy. Bodkin, 13 I. E. R. 492. (E.E.)

1, Lands, liable to a jointure of £2000 per
an. payable to the wife of the testator, X., were
devised to him by A. for life, remainder to
trustees for 1000 years, upon trust to raise
money to pay the debts and legacies of X.;
remainder to B. for life, remainder to C. for
life, remainder over. X. died in 1804. The
jointress in 1805 advanced £8500 in payment
of his debts, and took 4 mortgage to secure
that sum from the trustees of the term; in
1806 she married B. On that occasion the
jointure was settled to her separate use, and
the £8500 mortgage was settled on B. for life,
and, if he survived the intended wife, upon him
absolutely, On the death of X., A. entered
into possession of the lands, and died in 1807.
B. then entered into possession of the lands. E.
his wife, the jointress, died in 1827, and he died
in 1828. C. then entered into possession, and
being entitled to the personal estate of the
jointress, filed a bill in 1843 praying a fore-
closure of the mortgage. That bill stated that
during the life of the jointress the rents of
the lands had been insufficient to pay the
jointure. There was not any evidence ot any
payment of interest upon the mortgage up to
the filing of the bill. Held, on the principle
laid down in Burrell v. Lord Egremont (7
Beavan, 205), that the mortgage debt was not
barred by the Statute of Limitations, 3 & 4
W. 4, ©. 27,

That, although upon the death of the join-
tress in 1828, more than twenty years had
elapsed without any payment in respect of the
mortgage, yet the Court would presume that,
from that period, B., and, after his death, C.,
had kept down the interest—Lord Carbery v,
Preston, 13 I. E. R.455.  (C.)

 

[STATUTE OF LIMITATIONS.]

2. A bill filed in 1850 to set aside for fraud
a limitation under a deed of 1818, by which
the reversion in lands was limited to the de-
fendant for life, stated that the defendant went
to America in 1822 to avoid service of subpena,
and there concealed herself, which prevented.
the grantor from taking proceedings to set
aside the deed; and that the grantor devised
the lands to the use of the plaintiff for life,
“with remainder as therein;” and also devised
the residue of his estate to the plaintiff abso-
lutely. Held, on demurrer, that lapse of time
was not a bar to the plaintiff; and that she
might as devisee maintain a suit to set aside
the deed, without making the heir-at-law of
the grantor a party; but that the persons
entitled to the estate after the death of the
plaintiff were necessary parties.—Johnston v.
Howison, 13 J. E. R. 463. (R.)

38. The right of simple contract creditors to
proceed against real estates devised by the
debtor under the 3&4 W. 4, c. 100, is barred
by the Statute of Limitations in six years after
the debtor’s death.—Dunne v. Doran, 13 I. E.
R. 545. (E.E.)

4. When the petition states a case within
the Statute of Limitations, but an affidavit,
saving the demand from the bar, can be
made,—the Court will make the order when
such affidavit has been made.— Baldwin v.
B., 31. Jur.52. (C.)

e

5. A judgment creditor, V., went into posses-
sion under an ejectment brought upon a writ
of elegit. During his possession a prior judg-
ment creditor filed his bill, and obtained a
receiver over the rents of the lands in the
possession of V., who, thereupon, came to the
Court, and obtained leave to intervene in the
cause. The lands having been sold, and a fund
being in Court after payment of the prior
debt, V., after the lapse of twenty years,
having sought to prove his demand against
this fund, the Master reported the demand
barred by the Statute of Limitations. Held,
on exceptions, that, considering the position
of V. at the commencement of the suit, and
the mode in which the Court had dealt with
him, he was entitled to prove his demand,
irrespectively of the question raised upon that
statute.

Semble—That V.’s demand was barred, if his
rights were considered on the abstract ques-
tion on the statute, apart from the circum-
stances of the case.—Joyce v. J., 3 I. Jur. 273.
(C).

6. A payment of principal or interest of
money charged upon lands by a person ex-
pressly or impliedly authorised to make it, will
be equivalent to a payment by the party liable,
so as to prevent the operation of the 3&4 W.
4, c. 27,s.40; but a payment by a stranger will
not.

Parties seized of the lands of A. and B.,
subject to a term to pay off incumbrances,
conveyed A. to a purchaser, and B. to trustees
to indemnify and protect the lands of A. from
all charges and incumbrances ; and by a sub-
[STATUTE OF LIMITATIONS.]

sequent deed, W., owner of the lands of B.,
subject to the trust to indemnify, covenanted
to pay the interest of one of the charges. Held,
that, it being W.’s duty to pay the charges,
payments of interest by him were payments by
an agent, to save the bar of the statute as
against the purchaser of A.

Semble—The payment of interest by the
owner of the indemnity lands, after the expi-
ration of twenty years, would not revive the
right to proceed against the purchased lands.
Homan v, Andrews, 11. C. R. 106. (R.)

1. An acknowledgment of a judgment debt
in the will of the debtor is sufficient to take it
out of the operation of the 3 & 4 W. 4, c. 27,5.
40.—Millington v. Thompson, 31. C. R. 236. (C.)

2. Revivor of a judgment on a sci. fa., al-
though there be no change of parties, gives a
new present right to the conuzee, so as to pre-
vent the operation of the3&4 W.4, c. 27,
s. 40.—Jn re Blake, 2 I. C. R. 643. (P.C.)

3. A lease for lives renewable for ever was
vested as to two-thirds in A., and one-third in
B., subject to an under-lease for years, at a pro-
fit rent. From 1779 to 1822 the head rent was
paid by the sub-tenant in possession, and two-
thirds of the profit rent to A. It was not
proved that any sum was paid to B. In 1822
the interest in the under-lease was conveyed
to the defendant, subject to the entire rent
reserved byit. He continued to pay the head
rent and the two-thirds of the profit rent to
A; and in 1832 purchased the reversion in fee.

Held, on a bill filed by the representative
of B., to have the benefit of a decree for a
renewal in respect of A.’s interest, that no pre-
sumption of the extinguishment of B.’s ’third
of the profit rent, or of a conveyance of his
third of the reversion, arose.

That the retention of the profit rent gave
the defendant no title, under the Statute of
Limitations, as the third of the head rent must
be presumed to have been paid or retained by
him as the agent of those representing B.’s in-
terest.— Hayes v. Woodley, 31. C. R. 142. (C.)

4. A., as principal, and B., as surety, exe-
cuted their joint and several bond to K.
In 1818, K. recovered upon this bond several
judgments against A. and B. In 1840 the
judgment against A. was revived against him.
Held, that this revivor was not sufficient to
prevent the Statute of Limitations barring
the judgment against B.— Waring v. Waring,
51.C. BR. 6; 1 Ir. Jur.N.S.2. (C.)—[See
Waring v. W., 31.C. R. 331. (C.)]

5. In 1813, lands were conveyed to the use
that A. and B. should have for ever a yearly
rent-charge, with a clause of distress if it
should be in arrear for 21 days; if no sufficient
distress could be found upon the premises for
forty-one days next after the days appointed
for payment, it should be lawful for A. and B.,
their heirs and assigns, to enter on the pre-
mises, and to take the rents and profits, and
the same to keep, &c., for payment of the
rentcharge and all arrears. A. and B., their
heirs and assigns, were empowered, by sale or

 

603

mortgage of the lands, or out of the rents and
profits, to raise such sum as should for ever
thereafter be sufficient to pay the rentcharge,
In 1842, the portion of the arrears due from
Nov. 1834 to Nov. 1840 was assigned to the
petitioner, who, in 1853, filed a petition to
raise it out of the lands. A. died, leaving B.
surviving.

Semble—That an ejectment could not be sus-
tained on the clause of re-entry, unless it was
proved that no sufficient distress could be had
on the premises.

Held, that the question whether the peti-
tioner was or was not barred by the Statute
of Limitations, 3 & 4 W.4, c. 27,8. 25, de-
pended on B.’s right to recover in eject-
ment; and there being no evidence of want
of sufficient distress, the Court gave liberty to
bring an ejectment. :

Quere— Whether the clause of re-entry, being
conditional, and in the nature of a power of
distress, could be made available to recover an
arrear of rent, when the right to distrain is
barred by the 42nd sec.

Held, that the power of sale or mortgage
could not be exercised by the surviving trus-
tee to raise arrears, the recovery of which, by
distress or action, was barred by sec. 42.

Quere—Whether the surviving trustee could
in any case exercise the power ?

Held, that an acknowledgment, by atenant for
life of lands charged with a rent, will bind the
remainderman so as to take the case out of sec.
42, when the right to recover the arrears is
not barred ; but such an acknowledgment will
not revive a demand already barred.—Smith v.
S.51.C. RB. 88 (R.)

6. A correspondence, which has been car-
ried on with a view to a compromise, and
without prejudice to the rights of the parties,
cannot be given in evidence to take a claim
out of the operation of the Statute of Limita-
tions; even though there had never been any
controversy as to the existence and validity
of the claim.—ZJn re Monsell, 6 I. C. R. 245.
(C.A.)—Affg. ruling of I. E. C.]

7. The liability of the separate estate of a
married woman for what would be a simple
contract debt in case of a person sui juris is not
barred by the lapse of six years, from the ac-
cruer of the cause of action.—| Affirming
Vaughan v. Walker, 61. C. R. 471; 2 1. Jur.
N.S. 481. (C.)]—Vaughan v. Walker, 81.C.R.
458; 31.Jur. N.S. 208. (C.A).

8. In 1806, P. obtained a lease of the lands
of L., for his own life or 31 years; and in 1815
obtained a renewal, also for lives or 31 years.
P. devised them, charged with portions of
£500 for each of his grand-daughters, to his
grandson C., for life. In 1826, C. demised a
portion of the lands to his father, S., for nine-
teen years, at a profit rent of £276. The in-

‘terest on the legacies of £500 having fallen

into arrear, a deed was executed in 1832, by
which C. conveyed to trustees the profit rent
of £276 reserved in the lease of 1826, for the
residue of the nineteen years, to provide for
the payment of arrears and of the two
accruing gales of the legacies due to his sis-
604

ters, who agreed to accept this arrangement
in lieu and full satisfaction of their legacies of
£500 each. Subsequently the renewal of 1815
proved invalid; in consequence of which the
residue of the nineteen years expired in 1837,
and the fund produced thereby was inadequate
for payment of the arrears and accruing gales
of the legacies. Held, that the legacies were
not barred by the deed of 1832.

Held also—that, an order for a sale having
been made is to be considered as having been
made on behalf of every person who has an
interest in the proceeds of the sale; and a
party thus interested is exonerated from the
necessity of taking proceedings which might
otherwise have been necessary to prevent his
claim being barred by the Statute of Limita-
tions.

When, at the suit of A., an order was made
for the sale of lands in 1854, B., who was en-
titled to a charge on the lands, which charge
was subsisting in 1835, was not barred from
establishing her claim on the final schedule
settled in 1857, although no payment had been
received or proceedings taken on her behalf
for more than twenty years.—Jn re Colclough,
81. C. R. 330. (C.A.)

1. When there is a mortgage over several
denominations of land, and the mortgagor sub-
sequently sells some of them for value, without
the concurrence of the mortgagee; and the in-
terest due under the mortgage is regularly paid
out of the remaining denominations; the lands
sold are not discharged from the mortgage,
although no proceedings have been taken
against them within twenty years—(3 & 4 W.
4, c. 27, and 7 W.4 &1 Vic., c. 28).

Payment of interest through a receiver
appointed under the Mortgage Act (12 G. 3,
v. 10) is payment within the 7 W. 4 &1 Vic.,
v. 28).—In re Muskerry, 91. C. R. 94. (C.A.)

2. A., one of two bankrupt partners, subse-
quently to the bankruptcy, made, in a Ch. suit,
an affidavit, in which he admitted a debt,
barred by the Statute of Limitations, to be
due from him toF. The debt had originally
been that of G., deceased, the former partner
of A.; and the suit was instituted by the exe-
cutor of G., deceased. A. was in such an in-
firm state of health when he made the affidavit
that he was unable either to read or sign it.
The British Consul at B. read it over to him,
whereupon he affixed his mark. Held, that
the affidavit was not admissible in evidence in
the bankruptcy proceedings.

That, supposing it admissible, the cireum-
stances under which it was made, and the ob-
ject of making it, deducible from circumstances,
were sufficient to avoid it.

That, taking the acknowledgment in the
affidavit to be equivalent under the circum-
stances to an admission in a bankrupt’s sche-
dule, such an admission does not take a debt
out of the statute, as against the bankrupt’s
assignees.

The assignees in bankruptcy, being trustees
for the general body of the creditors, are bound
to set up the bar of the statute against an in-

 

(STATUTE OF LIMITATIONS.]

dividual creditor.—JIn re Clendinning, 9 I. C.
R. 284. (B.)

8. A term of years was vested in trustees to
raise charges of which no part was ever raised,
though interest on two-thirds of it was paid to
the parties entitled to the whole. On the re-
maining one-third no interest had been paid
for upwards of forty years.

Quere—Whether a claim on foot of this
one-third was barred by the Statute of Limi-
tations ?—Jn re Coane, 8 I. Jur. N. S. 124.
(C.A.)

4. A decree dismissing « bill for want of
plaintiff's appearance at the hearing, does not
bar another suit for the same demand.

Confidential letters, written before suit com-
menced, by one of the parties, to his solicitor,
in reference to the subject matter in dispute,
are privileged; and cannot be given in evi-
dence at the hearing by the opposite party.

A., entitled by settlement to a life interest
in a charge of £800, with yearly interest of
£50, in accordance with the provisions of the
settlement, and to carry out its trusts, entered
into possession cf the lands of O. He also
entered into possession of T., other lands of
the settlor not mentioned in the deed, but
which had from the earliest times always gone
with O. The rents of both denominations
amounted to about £50 per annum. A. never
claimed any balance of interest, but continued
in possession for more than twenty years. In
a suit instituted by the settlor’s representative
to redeem O. and T.—Held, that A. was es-
topped from saying that T. was not comprised
in the deed, and from relying on the Statute
of Limitations as a bar to their redemption.
—Phibbs v. O’ Donel, 8 I. Jur. N. 8. 226. (C.)

5. On the 24th Oct. 1812, lands held under
a lease of lives renewable for ever were con-
veyed by A. to the use of himself for life, with
remainder to J., his second son, in quasi fee.
J., who did not appear ever to have gone into
possession of the lands, by marriage articles,
dated the 9th Oct. 1813, agreed to settle the
lands on himself for life, remainder to his wife
for life, remainder to the petitioner. In 1814
A.’s eldest son and heir-at-law took out a re-
newal of the lease, in which he was stated to
be the assignee of A.’s interest. In 1827 J.
died, and in 1851 J.’s wife died, and the peti-
tioner’s right accrued. The heir-at-law of A.,
and those claiming under him, remained in
uninterrupted possession of the lands from 1814
until 1862. There was some evidence, not al-
together satisfactory, that A. died some time
in 1814; and a letter was produced which proved
that he was alive on the 28th Sept. 1813. Held,
that as his son J. was married on the 9th Oct.
following, there was a presumption that A.
survived the date of the marriage, and that
the petitioner’s rights under the marriage ar-
ticles were not barred by the Statute of Limi-
tations.—Rossiter v. R., 9 I. Jur. N. S. 373.

(C.A.)—[Revg.14 I. C. B. 247. (R.)]

6. An acknowledgment signed in 1862 by
the debtor’s administrator’s solicitor— Held,
[STATUTE OF LIMITATIONS.]

to save from the bar of the Statute of Limi-
tations a debt accrued before the passing of
the Merc. Law Am. Act (19 & 20 Vie., c. 97).

The solicitor for an administrator, who had
been furnished with several bills of costs by
the intestate’s solicitor, by notice required him
to tax any bills of costs properly payable out
of the assets, the administrator thereby under-
taking to pay any sum which might be found
due on foot of said costs (after all fair credits),
when same should be taxed and certified, and
said credits given, less the costs of taxation,
if one-sixth should be taxed off; and required
to be furnished with a requisition for taxation.
Held, that the notice saved the debt from the

bar of the Statute of Limitations.—Archer v..

Leonard, 15 I. C. R. 267. (R.)

1. A minor’s estate was subject to a mort-
gage debt, on which more than six years’ in-
terest was due. To the Master, on enquiry
what charges affected the minor’s estate, and
what amount of principal and interest was
due thereon, it appeared that payments for
interest generally had been made. Held, that
the payments should be appropriated to the
interest which accrued within the six years.

A mortgagee presented to the L. E. Court a
petition, upon which he did not proceed, for
sale of a minor’s estate. The Master, on a re-
ference to him, enquired what charges affected
the minor’s estates, and what amount of prin-
cipal and interest was due thereon? Held, that
the mortgagee was entitled to six years’ inter-
est from the date of filing his charge under the
order; not from the date of filing his petition
in the L. E. Court.

After the death of the tenant for life of a
settled estate, his acknowledgment, of an arrear
of interest due on a mortgage affecting the in-
heritance, binds the remainderman, so as to
save the bar of the 3&4 W. 4, c. 27, s. 42.—
In re Fitzmaurices, 15 I. C. R. 445. (R.)

2. H., solicitor and land agent of §., died in
1851. In1854E., solicitorforthe administratrix
of H., furnished S. with a bill of costs for work
done by H. for S., who died in 1855. In 1862,
B., solicitor for the petrs., executors of S., in
answer to an application for payment, wrote
that the executors had handed him the costs
and account on foot of rents which had been
furnished: that the amount of costs, save a
small sum, was already barred by the Statute
of Limitations at the time when the bill was
furnished to S.; but, continued B., “the in-
structions I have received were to look at the
matter fairly, and if anything appeared due,
to settle it, notwithstanding Mrs. H. not being
legally entitled to recover. I have accord-
ingly done so; and, without entering into any
particulars of the costs, but merely looking at
the matter of the rents, it seems to me that
Mrs. H. is indebted to Mrs. 8.’s executors.”
The writer then made a claim respecting the
rents of another property alleged to have been
lost by default of H., and concluded, ‘‘ There-
fore the executors are not in any way called
on to pay, unless you can within a week show
me, in any reasonable way, that Mr. H. did
not act as Mr. S.’s agent over these properties,

 

605

or that he used due diligence to collect the
rents.”

In a suit to administer the assets, the Master
found that H. had not been agent over the
latter property. Held, that the letter con-
tained a sufficient acknowledgment to save the
bar of the Statute of Limitations.

An agent’s written acknowledgment, made
after the passing of the Merc. Law Am. Act
(19 & 20 Vic., c. 97), suffices to save from the
bar of the Statute of Limitations a debt con-
tracted before the Act passed.—Leland vy.
Murphy, 16 I. C. R. 500. (R.)

VI. Apverse TitLe anp Possession.

3. A bill, filed in 1837, stated that, in 1773
J. devised estates to be sold to pay charges;
subject thereto, to his wife for life; after her
death, to “ The Incorporated Society in Dub-
lin for Promoting English Protestant Schools
in Ireland,” and their successors for ever;
that the wife paid the charges, and in 1801
assigned all her title in the estates to V., sub-
ject to the charges after her death; that she
died in 1811; that afterwards ptfs. got posses-
sion of part of the estate, but that V., and the
defts., as his devisees, retained possession of the
greater portion thereof, and were in possession
of all the common title deeds, which they re-
fused to deliver up. The bill charged that
defts. alleged that the charges were still un-
paid; that after the wife’s death, V. never
denied ptf.’s right to the estates, subject to
his own lien for the charges, but merely pro-
fessed to hold the lands until the account on
foot thereof should be closed; and offered to
refer to arbitration all questions touching
such account, as the only matters in dispute
between him and ptfs. A demurrer, ore tenus,
relied upon the 3 & 4 W.4,c. 27. Held, that
it should be disallowed, because deft’s. pos-
session was adverse when that Act passed.—
Incorporated Society for Protestant Schools v.
Richards, 8. & Sc. 559. (R.)

4. A mortgage was executed in 1802. In
1812, the mortgagor, V., upon his marriage,
settled the equity of redemption on himself
for life; remainder to trustees for years to
secure a jointure, and portions for his younger
children ; remainder to his first and other
sons in tail. That settlement was not regis-
tered. Soon after its execution, the mortga-
gee, C., filed a foreclosure bill against V.
alone, and obtained a decree upon sequestra-
tion against him. C.’s representative revived
the suit, and in 1830 got a receiver appointed,
who received the rents of part of the lands.
In 1833, V. died. <A bill of revivor was filed
against his eldest son, as heir, who allowed a
decree on sequestration to pass against him ;
an account thereunder to be taken; and a
final decree to be obtained without opposition.
A conditional order for an attachment for
not bringing in the title deeds was obtained
against him, and he filed an affidavit stating
the settlement. C.’s representative, in 1838,
filed against V.’s widow and younger children
a bill to carry into execution the decree.
Held, that the possession was not adverse to
606 [STATUTE OF

C., when the 3& 4 W. 4, c. 27, passed; that its
15thsec., taken in connection with the 7 W. 4
& 1 Vic., ¢. 28, s.1, gave C. the right to file
a foreclosure bill within five years after the
former Act passed.

A foreclosure bill is not a suit to recover
money charged on land within the3 &4 W.
4, ¢. 27, s. 40; but is within s. 24, which ap-
plies to the mortgagees of the legal, as well
as to those of the equitable estate.

Semble— An adjudication of a Court of
Equity would save the right from being barred
by the Statute. The Court would restrain
the party from setting up the Statute at Law.
Wrizon v. Vize, 51. E. R. 173; 3 Dr. & War.
104; 2 Con. & L. 188. (C.)—[Afig. 4 1. E.
R. 463; 2 Dr. & War. 192; 1 Con. & L. 298.

(C.)]

1. The party in possession of an estate
(which, on failure of certain limitations there-
of, had been devised’ in 1778 to a charity) in
1820; corresponded with the claimants for the
charity. The correspondence referred to, and
impliedly, recognised their rights but did
not directly acknowledge them. eld, that
neither his possession, nor that of the person
whose representative he was, and who had
been in possession under a conveyance by a
tenant for life, was an adverse posession
within the 3&4 W. 4, c. 27, s.15, at the pass-
ing thereof; and that the Act must be con-
strued as not to have operated, since the bill
was filed in 1837, within five years.

Charities were not within the early Statutes
of Limitations, nor were they looked upon in
Equity as subject to any rule of limitation
founded upon an analogy to those Statutes.

Semble—They are not within the 3& 4 W.
4, c. 27, but seem to be a casus omissus.—In-
corporated Society v. Richards, 4 1. E. R. 177;
1 Dr. & War. 258; 1 Con. & L. 58. (C.)

2. V., after appointing settled estates to his
eldest son, C., gave all his other real and per-
sonal estates, charged with his debts, to his
executors, in trust for his six younger sons
absolutely. After making his will, a free-
hold was conveyed to V., who died in 1791,
without having republished the will, and
leaving C. of full age. After V.’s death,
the younger sons entered into the receipt of
the rents of that freehold, and continued in
receipt thereof, without any adverse claim
having been made, until 1819, when C. died,
leaving an infant heir. No claim on the in-
fant’s behalf was made, and the younger sons
continued uninterruptedly in receipt of the
rents. In 1839, the freehold-was sold under a
decree in a suit instituted by a judgment
creditor of V. The infant was a party thereto,
and died after attaining age, and after sale of
that freehold. No bill of revivor was filed
against the next heir. The purchaser objected
to the title, because the title of V.’s heir
was not shown to be extinguished; and be-
cause there was not any person to convey
the legal estate. Held, that the title was
good under the 3 & 4 W. 4, c. 27 (reversing
the Rolls decision); that it was not an objec-
tion to the title, that the facts constituting

 

LIMITATIONS.]

adverse possession were proved by affidavits,
and in the heir’s absence.

The 3&4 W.4, c. 27, transfers the estate,
at the end of the statutable period, from the
rightful owner to the person whose possession
has barred that owner’s right.

The circumstances that the property was in
lease when the adverse possession commenced,
and that an arrear of rent was allowed to ac-
cumulate for several years, do not prevent
the Statute from running.—Scott v. Nixon, 6
I. E. R. 8; 3 Dr. & War. 388; 2 Con. & L. 185.

(C.)

8. A., by will, directed her debts to be paid;
devised her real estate to her brother; and
directed that all costs due to her law agent,
D., should be paid out of that real estate.
She died in 1813, indebted to D. in a consi-
derable sum for costs, and also on a promis-
sory note. The owner of the real estate, and
the executors of A., resided out of the juris-
diction of the Court from 1815. In 1817,
money was paid by the agent of that owner
to D. In 1819, D. filed a bill to recover his
demand out of the assets of A., but, in conse-
quence of the defendants being out of the
jurisdiction, no subpeena was served. In 1828,
the executrixes of D. filed a bill of revivor,
but, the defendants being still out of the juris-
diction, no subpcena was served. In 1888, an-
other bill of revivor was filed, and subpoenas
served upon the defendants, who were still
out of the jurisdiction. Held, that the filing
of the bills in 1819 and 1828 saved the bar of
the Statute of Limitations.—Foster v. Thomp-
son, 61. E. R. 168; 2 Con. & L. 568. (C.)

4. In 1791, R. died possessed of an equity
of redemption in the lands of A., held for
years under a see; and left two sons, W. and
T. W. entered into possession of A., and
obtained renewals of the lease thereof in his
own name; executed mortgages thereof; ap-
plied the rents to discharge some of R.’s debts;
and acted as sole owner until his death in
1809, having in 1802 obtained administration
to R. During W.’s life, T. did not set up any
claim to A. Held, that W.’s possession was
not adverse to T.; and did not establish a
title to the entail lands as against T.’s repre-
sentatives who were entitled to a moiety
thereof —Scott v. Knox, 4 1. E. R. 397; Long.
& J. 381. (E.E.)

5. In 1810, a conveyance of lands was made
in trust for the plaintiff, among others. A
person under whom the defendants claimed
was then in possession of the whole of the
lands, being entitled to a fourth part of
them under a prior deed. There had been
various dealings with the estate which amount-
ed to an acknowledgment of the plaintuff’s
title down to 1819. But the defendants, or
those under whom they claimed, had been in
possession from 1810 down to the filing of the
bill in 1842. Held, that the plaintiff was
barred by the 3 & 4 W. 4, c. 27, s. 2, and
that his right was not saved by the 25th sec of
that Act. — Burroughs v. M‘ Creight, 71. E. BR.
49; 1 Jon. & L. 290. (C.)
[LIS PENDENS.]

1. C. g. trusts under an invalid devise, who
remain in possession without acknowledgment
of title for more than 20 years, and thus bar
the right of the heir-at-law, do not thereby
acquire the legal estate in the devised lands,
which vests in the trustees, subject to the
trusts of the devise——Kernaghan v. M‘Nally,
121.C. R. 89. (C.A.)

2. A. seized in fee of lands in Ireland,
granted an annuity in 1812. In 1820, A.
became insolvent in England; and the then
usual deeds of conveyance were executed. In
the year 1822, the grantees of the annuity
filed a bifl in Ch. in Ireland for a receiver, and
prayed process against the assignees in the
English insolvency, who never answered. The
possession of A. remained undisturbed by the
assignees. In 1828, a receiver was appointed
over, and went into possession of the lands;
and was in possession when this petition for
sale was filed. In 1861, the assignees conveyed
the lands to the owner in this matter subject to
the annuity. On a petition for sale presented
by the owner—Held, that the conveyance of
1861 was inoperative; that the title of the
assignees was barred by the Statute of Limita-
tions; and that the possession had always
been adverse to them.

The L. E. Court always requires that an
owner and petitioner proceeding for sale
should be in the actual or virtual possession
of the estate, or in the receipt of the rents.—
In re Butler’s Estate, 13 I. C. R.453. (.E.C.)

 

LIS PENDENS.

See ApministRation & ApMinsTRaToR, III—
ASSIGNMENT, pendente lite — GUARDIAN
AND Warp, II, 3— Pieapine, 11 —
PracticE, RECEIVER, 2. i.

[See 7 & Vic.,¢ 90; 80 & 31 Vic, v. 44, ss.
127, 152.)

3. Quaere—Whether a lis pendens in one part
of the United Kingdom is notice in another
part?—Houldich v. Wallace, 1 Dr. & Wal. 490;
5 Cl. & F. 629. —[Affg. Wallace v. Marquis of
Donegal, 1 Dr. & Wal. 461. (C.)]

4. Parties claiming under a marriage settle-
ment, made after a decree to account in a
creditor’s suit, instituted to enforce payment
of debts out of the estates comprised in the
settlement, are affected with notice, for they
are purchasers pendente lite; a decree for an
account being only a continuance of the
litigation. — Higgins v. Shaw, 2 Dr. & War.
357. (C.)

5. From Ist Nov. 1844, no ls pendens shall
bind or affect a purchaser or mortgagee, with-
out express notice thereof, unless and until a
memorandum specifying the name, place of
abode, and title, trade, or profession, of the
person whose estate shall be intended to be
affected thereby, and the Court of Equity, and
the title of the cause or information, and the
day when the bill or information was filed,
shall be left with such officer so appointed as
aforesaid, who shall enter the same particulars

 

607

in a book as aforesaid, in alphabetical order,
by the name of the person whose estate is
intended to be affected by such lis pendens, and
which book is to be entitled ‘The Index to
Lis Pendens ;” and such officer shall be entitled,
for every such entry, to the sum of two
shillings and sixpence: and the provisions
hereinbefore contained in regard to the re-
registering of judgments every 20 years, and
the operation thereof, and the fee payable to
the officer thereon, shall extend to every case
of lis pendens, which shall be registered under
the provisions of this Act.—7 & 8 Vic., c. 90,
sec. 10.

A suit was instituted in 1822, to impeach a
sale for fraud, and have it set aside. In 1823
the defendant answered, and in 1828 died, no
proceedings having been taken in the cause
since his answer. In 1839 a bill of revivor
and supplement was filed, and the cause
brought to a hearing in 1842. Semble—that
there was a sufficient lis pendens to affect pur-
chasers of the subject matter of the suit in
1830, with constructive notice. — Thornhill v.
Glover, 3 Dr. & War. 195. (C.)

6. An information was filed in Ch. in 1832,
to set aside a lease granted at an undervalue,
and amended in 1837. The interest in the
lease was, in 1835, put into settlement, and the
parties taking under this settlement asserted
their rights as purchasers of the lease for
value, and without notice; but it was held
that there was lis pendens sufficient to affect
them with notice of the adverse claim.—Ait.-
Gen. v. Corporation of Cashel. 3 Dr. & War.
294; 2Con.&L.1. (C.)

7. A suit, to the prosecution of which there
was not any obstacle, remained, during several
years, dormant and, apparently, abandoned.
But for the lis pendens, the demand would have
long ago been barred by the Statute of Limi-
tations. An application on behalf of the
minors for further time to prosecute the suit
was refused; the case being within the 81st
G. O. of 27th March 1843.—Callanan y. Blake,
61. E.R.100. (R.)

8. The order, appointing a receiver on a
judgment creditor’s petition, is not a lis
pendens, so as to affect a purchaser with notice
of the judgment.— Tennison v. Sweeny, 7 1. E.
R. 511; 1 Jon. & L. 710. (C.)

9. A suit by a judgment creditor for the
general administration of his debtor’s estate,
is a sufficient lis pendens to affect a purchaser
of alife estate in lands, the whole of which
were bound by the judgment, with an equity
against the life estate to indemnify the inhe-
ritance.

On a question of lis pendens, the registry of
the purchase deed of the person sought to be
affected is immaterial.

Statute 7&8 Vic., v. 90, s. 10, as requiring
registry of lis pendens to affect a purchaser,
does not apply to a purchase before the Act.—
Jennings v. Bond, 8 I. E. R.755; 2 Jon. & L,
720. (C.)
608

1. Semble—A suit is lis pendens before service
of subpeena; and a general administration
suit is iis pendens as to lands ultimately sold in
it (though it did not seek to enforce a specific
claim against them), so as to avoid a lease by
the inheritor after its institution—Drew v.
Lord Norbury, 9 1. E. R. 171; 3 Jon. & L. 267.
(C.)

2. A suit for foreclosure and sale having
been instituted in 1833, a judgment was in
1835 recovered against the owner of the equity
of redemption in the lands previously to any
decree in the cause. In 1838 a decree to
account was pronounced in the cause, and in
1842 a final decree for a sale of all the mort-
gaged estates was made. In 1844 the judg-
ment creditor, who had not at any time been
a party to the cause, obtained on petition a
receiver on foot of his judgment over a part
of the mortgaged estates. Held, in reversal
of the decision at the Rolls, that the plaintiff
in the cause was entitled on motion to have
the receiver, appointed in the petition matter,
extended to the cause, inasmuch as the judg-
ment, having been recovered pendente lite, gave
the conuzee no right as against the mortgagee,
the plaintiff—Trye v. Earl of Aldborough, 1 I.
C. R. 666; 41. Jur. 53. (8.)

 

LITERARY PROPERTY.
See CopyRicHt.

 

LIVERY OF SEISIN.
See PossEssion—ADVERSE POSSESSION.

 

LOAN.
See Mortaace, AGREEMENT.

3. A mortgage deed contained a borrowing
ing clause. Small sums were afterwards
advanced from time to time by the mortgagee
to the mortgagor. In a suit to administer
generally the mortgagor’s estate, the Master
having refused, in taking the accounts, to
report that the cash advances had been
made on the security of that clause, or to
allow interest on those advances—Held, that
the report was wrong; and that the mort-
gagee was justified in referring those pay-
ments to: that clause.—Cairncross v. Bradley,
2 Dr. & Wal. 482. (C€.)

 

LOCUS STANDI IN CURIA.

4, A letter written by the trustee to the so-
licitor of a party who had advanced money for
the purposes of the trust, stating that the
trustee would exercise all or any of the powers
reposed in him by the trust-deed for the pur-
pose of securing the advance, will not give
that creditor a locus standi in Equity to enforce
those trusts for his own benefit.—La Touche v.
The Earl of Lucan, 2 Dr. & Wal. 432; 7 Cl. &
F. 772.—[Revg. 2 Dr. & Wal. 271. (C.)]

 

[LOAN.—LOCUS STANDL]

5. In 1821 C. took, in England, the benefit
of the Insolvent Act; in 1830 mortgaged his
property in Ireland, and gave a bond and judg-
ment to secure the debt. The mortgagee filed
a bill for foreclosure and sale against a prior
annuitant upon the property, against the as-
signees in insolvency, and against the insol-
vent. It was thereupon declared that the annui-
tant had the prior charge for the arrears of the
annuity; and that the mortgagee, because of
the non-registry in Ireland of the assignment
to the provisional assignee, was entitled to
priority over the assignees. The decree did
not dismiss the insolvent, but alloweg him and
others to redeem on paying the arrears of the
annuity, mortgage debt, and costs. All parties,
except the insolvent, were content with the
decree. He insisted that it erred in giving the
arrears of the annuity. On appeal— Held, that
the appeal was incompetent because of the
insolvency ; and that a locus standi for the in-
solvent was not created by the circumstance
that if those arrears were disallowed, the
mortgage debt, and thereby the bond and
judgment, which were later than the insol-
vency, would be satisfied.

An appellant, improperly made a party to a
suit, cannot appeal, though he was not dis-
missed from the suit in the Court below, and
though the decree was partly in his favour.—
Rochfort v. Battersby, 2 H. Lds. Cas, 388; 14
Jur. 229.—[ Affg.9 I. E. R. 191; 2 Jon. & L.
431. (C.)]

 

LORD OF MANOR.

See Common—Corrnotp, VII—Puzapine,
Partizs, 15.

 

LORD’S COURT.
See CopyrHotp, VI.

 

LORD CHIEF BARON.
See Jurispiction, II, IV.

 

LORD CHANCELLOR.
See Jurispicrion, I.

 

LOST.
— Bond. See Bonn, VII.

— Deeds and other Instruments. See DzxEps,
Vil.
— Decree. See Practicr, Decrez.

— Deeds, generally, Evidence of. See Practicz,
EVIDENCE.
— Security. See Security, IIT.
— fas under Settlement. See SETTLEMENT,
I.

 

LUNACY AND IDIOTCY.

[See G. O in LunSof 1848, Darley’s Ch. O.,
pp. 215 et. seg.; Gam. Ch. 0., pp. 28, 128, 217,
333. G. O. 32, of Nov. 1867.]
Generally.

[See Statutes 11 G.4 &1W.4,c. 60, ss. 3,
15, 20; 11 G.4&1W.4, 0.65; 384 W. 4,0.
7451 & 2 Vic. c. 27; 18 & 14 Vic. c. 60 (Trus-
tee Act, 1850); 13 & 14 Vic., c. 35; 19 & 20 Vic.,
c. 120 (Set. Est. Act); 23 & 24 Vie, c. 127.]

See Guarpian anp Warp, II, 3—Jurispic-
tion, XI—Pueapine, Parties, 22—
Pueapine, Piea, 12—Pracricr, Costs,
10—Sraturss, II, 27, 31.

I. Generatty—wuar Lunacy orIprotcr
Is—JURISDICTION IN.

Weakness or Minp.

EFFECT OF GENERALLY—How FAR A
Louwatic’s Acts BIND.

Commission or Lunacy—Inquisrtion
AND Return.
1. Generally—at whose instance.
2. Superseding, and Traversing the
Inquisition.

II.
III.

IV.

V. Comirrer or Lunatic.
1. His Appointment and Removal—
Appointment of Receiver.
2. His Duties, Powers, and Liabi-
lities.
8. Allowance for Maintenance.
VI. Lunatic’s Estate.

1. Real Estate—its Management,
Leasing, Sale, and Disposition.
2. Personal Estate.

VIL. Manacement or Lunatic’s Person—
Marriasce or, &e.

Lunatic TrusTers anD MortTGAGEES.

Petitions, Practice, anD PLEADINGS
in Lunacy Procrrpines.

Vill.
IX.

 

I. LuNAacY GENERALLY ; WHAT: JURISDICTION
IN CASES OF.

1. A certificate of lunacy will not be re-
ceived, if given by a physician who keeps a
private lunatic asylum.—Anon., 6 I. E. R. 389 ;
Dr. Rep. temp. Sugden, 286. (C.)

2. Semble—A man labouring under a delu-
sion, which may at any moment be brought
forth, if the subject of it be alluded to, though
in other respects perfectly rational, is in law
insane; and a jury would not be justified in
finding that he enjoyed a lucid interval,
though at the time he is not under the in-
fluence of the delusion, if there be a tendency
to its recurrence.

It is not necessary, to constitute a lucid
interval, that the subject thereof should be
restored to as vigorous and active a state of
intellect as he might have enjoyed previously
to the visitation of the lunacy.—Creagh v.
Blood, 81. E. R. 484; 2 Jon. & L. 509. (C.)

8. Absolute insanity is not requisite to sup-
port an application for a commission de lun ing.
Such a commission issued in the case of aper-
son whose mind was weakened by epilepsy. Jn
re Monahan, 91. E.R. 253; 3 Jon. & L. 258. (C.)

4. Orders iw lunacy giving the receiver
liberty to pay money are not within the
meaning of the 27th section of 3 &4 Vic.,
c. 105, so as to bear interest.— Hoops v. Lord
Kingston, 11 I. E. R. 469. (C.)

[LUNACY.]

 

tts Effect. 609

5. Alunatic claimed as heir-at-law of T., and
estates having been devised by T. to trustees
for charitable purposes, by an instrument, the
validity of which as a will was impeached,
a suit was instituted, and an issue to try the
validity of the will directed as necessary for
freeing the lunatic’s estate from doubts, and
the trustees directed to conduct the issue as
plaintiffs. The issue was found against the
will. Held, that though the trustees were not
entitled to their costs under the decree, yet
the Court could give them, upon petition, out
of the lunatic’s estate—IJn re Turnley, 12
LE. R. 581. (C.)

6. Semble—This Court has power to bind
the rights of insane persons, though not so
found by inquisition.— Massey vy. Pennefather,
71. Jur. N.S. 268. (P.)

 

II. Weakness or Minp.

 

Ill. Generat Errect or Lunacy: How
FaR a Lunatic’s Acts Bryn.

7. Signature of a consent on behalf of an
imbecile plaintiff is a nullity, as he is not
competent to authorise the act; the consent
could not be made a rule of Court.—Brangan
v. Gorges, 71. E. R. 221. (RB.)

8. A deed was executed by A., who was
then insane on particular subjects. Quare—
Whether the jury, being satisfied of the
existence of the morbid feeling when the
deed was executed, though not then called
into activity, may say that the deed was valid,
since the lunatic was rational in all other
respects ?

Quere—If a man is partly insane, and that
partial insanity is not ever removed from his
mind, is he capable of doing solemn acts which
he would not have done if the subject of his
delusion had been touched upon ?

The acts of the parties to a particular
instrument are properly to be taken into the
consideration of the question—whether it
was executed during a lucid interval ?

If a man, having been insane, recovers his
reason, it is not sufficient, in order to im-
peach an act thereafter done by him, to show
that he was not in his judgment so sound as
he had been before his insanity. The law
only requires that a man shall have possession
of his reason so as to know the effect of the
act which he is about to perform, and to be
capable of carrying that act into effect.—
Creagh v. Blood, 81. E. R. 484; 2 Jon. & L.
509. (C.)

9. R. was entitled to a rentcharge for life,
and legal estate for life in remainder in lands
decreed to be sold for paramount incum-
brances. After decree he became lunatic,
but no commission issued. A conveyance by
him to a purchaser was ordered, under sec. 5
of the Trustee Act.—Blake v. B., 9 I. E.R.
592. (C.)

10. When decrees were manifestly erroneous,
and prejudicial to the rights of a party who

17
610 Commission.

was, during all the proceedings, imbecile, the
Court set aside the erroneous decrees and pro-
ceedings, upon a re-hearing, the decrees not
having been enrolled, although the first decree
was pronounced over twenty years, and the
second eighteen years, before the petition of
re-hearing was presented.

Under the circumstances of the case, and
the matter being between the Court and the
imbecile person, the Court made an order,
without a commission de lun. ing. of reference
as to his state of mind, and the proper main-
tenance to be allowed him.—Knoz v. Watters,
10 I. E. R. 353. (C.)

1. The receiver being insane, the Court
made an order that his surviving surety might
pass the account; and that on the balance
being lodged, the recognizance should be va-
cated, and gave the surety the costs of the
motion, and of vacating the recognizance.—
Webb v. Cashel, 11 I. E. R. 558. (R.)

 

IV. Commission or Lunacy: InquIsITION
AND Return.

1. Generally: at whose instance.
2. Superseding and Traversing the Inqui-
sition.

 

IV. 1. Commission of Lunacy generally: when
and at whose instance granted or re-

Sused.

2. The Chancellor’s jurisdiction to grant a
commission in the nature of a writ de lun. ing.
is not confined to cases of mere lunacy. The
Court will extend its protection to a person
who, through imbecility of mind, is incapable
of managing his own affairs.—Jn re Monahan,
9 LE. R. 253; 3 Jon. & L. 258. (C.)

8. A commission of lunacy refused when
the lunatic did not require the Court’s protec-
tion either for himself or his property—the
petitioner’s object being to obtain a mainte-
nance out of the estate.—Jn re Clare, 3 Jon. &
L. 571. (C.)

4, When the person and property of a luna-
tic did not require the protection of the Court,
and it appeared that the motive for seeking
the commission was to enable the petitioner
to have the finding of a jury, the better to con-
test a will executed by the lunatic—the com-
mission was refused; the lunatic, however, to
be restrained from executing any instrument
whatsoever, unless under the guarantee of a
medical practitioner—Jn re B—, 3 I. Jur.

98. (C.)

5. A commission of lunacy having issued
against B., a supposed lunatic, the jury found
that he was sane. A second commission issued
subsequently, whereon he was found to have
been insane from a period long anterior to the
date of the first finding. Held, that the peti-
tioner, as next-of-kin of the lunatic, was
entitled to the costs incurred on the first com-
mission.

Subsequently to the finding on the first com-
mission, the lunatic committed an assault, and

[LUNACY.]

 

Committee.

on the case coming before the Judge of Assize,
the next-of-kin employed counsel and attorney
to defend B. on the ground of insanity, Held,
that the petitioner was also entitled to these
costs.—In re Clegg, 1 I. Jur. N. 8. 87. (C.)

 

IV. 2. Superseding and Traversing the Inquisition.

 

V. Commitrer or Lunatic.

1, His Appointment and Removal: Ap-
pointment of Receiver.

2. His Duties, Powers, and Liabilities.

8. Allowance for Maintenance.

 

V. 1. Appointment and Removal of Committee:
Appointment of Receiver.

6. The Court may, if it see fit, appoint a
committee of a lunatic’s estate without re-
quiring the usual security.

The committee not required to give security
when the property was small, and there would
have been a difficulty in procuring any one
else to act; the solicitor of the committee
undertaking to apprise the Court when any
property of the lunatic should be realised.
In re Burroughs, 2 Dr. & War. 207; 1 Con. &
L. 309. (C.)

7, Though a lunatic’s lands be in Ireland,
the Chancellor of Ireland cannot appoint a
committee of the lunatic’s person, if he resides
at an asylum in England.

Until a committee of a lunatic’s person be
appointed, the Court will not pay out any
sum, even for the present maintenance of the
lunatic’s wife and children.—Jn re B——, 1
I. E.R. 181. (C.)

V. 2. His Duties, Powers, and Liabilities.

8. Mode of proceeding by the committee of
a lunatic to obtain possession of his person—
the lunatic having, before inquisition found,
been committed to custody under the 1 Vic,
c. 27.—In re Flanagan u lunatic, 2 Jon. & L.
343. (C.)

 

 

V. 3. Allowance for Maintenance.

9. On a proper case being made, the Court
will grant an increased maintenance to the
lunatic, in order that it may be applied to sup-
port his near relations.—Zn re Creagh, 1 Dr. &
Wal. 323. (C.)

10. The committee of a lunatic is beneficially
entitled to the savings out of the lunatic’s al-
lowance.

A., devisee for life, and B., remainderman
in fee, were directed by the testator to apply
“any sum, not exceeding £400 a-year,” for the
maintenance of testator’s eldest son, a lunatic,
and charged that upon his estates. Testator
then appointed A. and B. to be the committee
of the lunatic. After A. and B. had died, the
Court fixed the allowance at’ £280 a-year.
Heid—after the lunatic’s death, as between
the owner of the estate charged and the ad-
ministrator of the lunatic, that the owner of
Estate of

the estate was entitled%to the difference be-
tween £280 and £400 a-year, and not the ad-
ministrator of the lunatic—Jn re Ponsonby, 2
Con. & L. 30.; 3 Dr. & War. 27.; 5L E. R.
268. (C.)

 

VI. Luwatic’s Estars.
1. Real Estate : its Management, Leasing,
Sale, Disposition.
2. Personal Estate.

 

VI. 1. Real Estate : its Management, Leasing,
Sale, and Disposition.

1. The committee and heir presumptive of
a lunatic, who was absolute owner of a free-
hold estate, subject to a charge of £900, paid
off the charge out of his own moneys, and had
it assigned to a trustee for him. He subse-
quently applied to the Court for leave to ap-
ply the surplus rents of the estate towards
payment of the charge, but there were then
judgments affecting the lunatic personally,
and the application was refused. When the
judgments were paid, the committee, in the
lifetime of the lunatic, paid off the charge
out of the surplus rents, without any order,
but was allowed the amount in passing his ac-
count. Held, that between the heir and the
next-of-kin of the lunatic, the latter had no
equity to haveit kept alive for their benefit.—
Newcombe v. N., 31. E. R. 414; Dr. Rep. temp.
Sug. 358. (C.)

2. Observations touching paying for the
management of a lunatic’s estate, and the im-
propriety of appointing his devisee to be sole
committee of his person.

The English Privy Council’s decision rever-
sing the Lord Chancellor’s Orders (Ll. & G..,
temp. Plunket, 503) observed upon.—In re The
Earl of Lanesborough, Beat. Rep. 638. (C.)

3. When a lease had been granted, with a
covenant for perpetual renewal, and the in-
terest of the lessor had vested in a lunatic,
and, some of the lives having dropped, an ap-
plication was made in the lunacy matter, by
the tenant, for a reference to the Master to
enquire and report as to the liability of the
lunatic to renew the lease; and the applica-
tion was granted, and the right of parties
seeking the renewal was established—Hedd,
nevertheless, that the costs of the petition,
and all the proceedings thereunder, should be
borne by the applicants——ZJn re Doolan, 3 Dr.
& War. 442. (C.)

4. The proper time to decide whether a lu-
natic’s heir-at-law, or next-of-kin, is to be
entitled to the benefit of payments made out
of his real estate, is when the payments are
made. The decision ought not to be deferred
until after the lunatic’s death.

A., found a lunatic, was seized in fee of an
estate which was subject to a charge. Pending
the lunacy, the owner of the charge applied
for payment. The Court referred it to the
Master to enquire whether it would benefit A.
to pay off the charge ; and, if so, out of what

[LUNACY.]

 

Lunatte. 611

fund payment should be made. The Master
reported that it would be beneficial to pay off
the charge out of a fund in Court, savings from
the estate which was subject to the charge.
The Court ordered that payment should be
made out of that fund; and that the charge
should be assigned to a trustee, eitherto attend
the inheritance, or for A., his executors and
administrators, as the Court should afterwards
decide, without prejudice to any question
which, upon A.’s death, might arise between
his heir-at-law and next-of-kin, either in the
lunacy, or upon a bill filed. The charge was
paid off, and assigned to a trustee. After-
wards A. died intestate, without issue, and
without having recovered his senses. Upona
bill jfiled by one of the next-of-kin, and by
A.’s personal representative, claiming the
benefit of the charge.— Held, that A.’s heir-at-
law was entitled to hold the estate free from
the charge ; and that the next-of-kin were not
entitled to its benefit Earlof Leitrim v. Enery,
6 I.E. R. 357; Dr. Rep. temp. Sug. 330. (C.)

5. An allowance out of a lunatic’s estate to
assist in educating children entitled to the
estate in remainder after the lunatic, and
whose mother (the petr.) was entitled to a join-
ture which would, under a covenant, be charge-
able on the estate, refused.—In re Earl of
Lanesborough, 71. E. R. 606. (C.)

6. A lease for lives, with covenant for per-
petual renewal, was made by a lunatic to his
brother, in 1787. The lessee continued in un-
disturbed possession of the greater part of the
lands until his death in 1836; several reports
having been made in the meantime in the
lunacy matter, finding the sum due by the
lessee for rent, and that he was liable for the
whole rent reserved in the lease, although he
was not in possession of the whole of the
lands, and setting off the sum due against
claims on the lunatic’s estate. After the
lessee’s death, his son, the defendant, entered,
and continued in possession until 1842, when
the lunatic died, and the reversion in fee
descended on the defendant. Held, on a bill
by a judgment creditor of the lessee, that the
latter had not acquired the fee-simple or a
right to renewal by the length of possession
and the proceedings in the lunacy matter;
and that the defendant was not chargeable
with the rents received by him between 1836
and 1842, as assets by descent.—Fulton v.
Creagh, 9 1 E. R. 289; 3 Jon. & L. 329 (C.)

7. A payment out of accumulated rents to a
lunatic’s son, tenant in tail in remainder, to
furnish the mansion-house in which he lived,
refused; but a sum allowed for repairs, it
being found to be beneficial to the estate that
the son should continue to inhabit it—Zzx
parte Tottenham, 111. E. R. 414. (C.)

 

VI. 2. Lunatic’s Personal Estate.

8. A charge affecting a lunatic’s real estate,
whereof he is quasi owner in fee under a lease
for lives renewable for ever, was paid off by
the committee, without any order for that
purpose, out of the rents. Held, that the
612 Estate of

payment relieved the estate for the benefit
of the lunatic’s heir-at-law; and that there
was not any charge upon it in favour of the
lunatic’s next-of-kin.— Newcombe v. N., 3 I. E.
R. 414; Dr. Rep. temp. Sugden, 358. (C.)

1. A., a lunatic, was seised in fee of an
estate, subject to a charge. Pending the
lunacy, the owner of the charge applied for
payment. The Court, by an order in the
lunacy matter, referred it to the Master to
enquire whether it would benefit A. to pay off
the charge; and, if so, out of what fund. The
Master reported that it would be beneficial to
pay off the charge, and that payment should
be made out of a fund, savings of the estate
subject to the charge. The Court directed
the charge to be paid off, and assigned to a
trustee to attend the inheritance, or for A.,
his executors and administrators, as should
be thereafter determined, without prejudice
to any question which, upon A.’s death might
arise between his heir-at-law and next-of-kin,
either in the lunacy, or upon abillfiled. The
charge was paid off, and assigned to a trustee.
Afterwards A. died intestate, without issue,
and without having recovered his senses.
Upon a bill filed by one of the next-of-kin,
and by A.’s personal representative, claiming
the benefit of the charge— Held, that A.’s heir-
at-law was entitled to hold the estate, free
from the charge, and that the next-of-kin
were not entitled to its benefit.

The proper time to decide whether pay-
ment of a charge affecting a lunatic’s real
estate is to exonerate the inheritance, is when
the payment ismade. The decision ought not
to be deferred until after the lunatic’s death.—
Earl of Leitrim v. Enery, 6 I. E. R. 357; Dr.
Rep. temp. Sugden, 330. (C.)

2. The Lord Ch. has not jurisdiction in lu-
nacy upon the application of a creditor of the
heir-at-law, and sole next-of-kin of the lunatic,
to order an allowance made to him (the heir-at-
law) out of the lunatic’s estate, for the main-
tenance of the lunatic, to be applied in pay-
ment of the debt of the heir-at-law.— Ex parte
Linehan, in re Hennessy, 1 Jon. & L. 29. (C).

3. An allowance out of an estate belonging
to a lunatic, to assist in educating children
entitled to the estate in remainder after the
lunatic, and whose mother (the petitioner) was
entitled to a jointure which would, under a
covenant, be chargeable on the estate—re-
fused.—In re Earl of Lanesborough, 7 1. E. R.
606. (C.)

4. Semble—When a lunatic owns a trading
establishment yielding large annual profits of
which the true value cannot be realised by a
sale, the Court will allow it to be carried on
by a manager for the lunatic’s benefit—ZJn re
Rowles, 81. Jur. N.S. 63. (C.).

5. A lunatic may be permitted to travel in
England, on proper security being given, but
the Court will not give leave to the committee
to take the lunatic out of the United King-
dom, on a medical certificate that it would be

.

[LUNACY.]

 

Lunatic.

to the advantage of the lunatic to travel'in a
continental climate.—In re Hackett, 31. C. R.
375; 61. Jur. 249. (C.)

 

VII. Manacement or Lunatic’s Person:
MarriacGE or, &c.

6. When a lunatic, who had been so found
after he had been committed to prison for a
breach of the peace, upon being so found, had
beon transferred, by virtue of the warrant of
the Lord Lieutenant, to a lunatic asylum, pur-
suant to 1 & 2 Vic., c. 27, and the period of his
imprisonment had expired—Held, that the
Lord Ch. had jurisdiction to order the lunatic
to be placed in such asylum as the committee,
with the approbation of a Master, should ap-
point.—In re M‘Dermott, 2 Con. & L. 293; 3
Dr. & War. 480. (C.)

VIL Lunatic Trousers anp Mortcacres.
[See Statute 13 & 14 Vic., v. 60.]

7. There was a devise of real estate, upon
trust to raise, by sale or mortgage, sums of
money, and, subject thereto, to the use of A.
for life, remainder to his first and other sons
in tail, remainders over. In a suit instituted
in the Court of Exch. a decree for a sale of the
real estate had been made, and a sale accord-
ingly had. Pending the proceedings A. died,
leaving three sons, of whom &., the eldest, and
first tenant in tail under the will, was a luna-
tic, and so found by inquisition. Held, that
the Court had not jurisdiction under 1 W. 4,
c. 65, s. 28, to order the committee of the
lunatic to execute the deed for barring the
entail of the estates.—Jn re Skerrett, 2 Dr. &
War. 585. (C.)

8. Land having been sold under a decree to
pay charges prior to the estate of one deft., a
lunatic, the Court referred it to the Master to
appoint « person in his place to convey them
to the purchaser. When the sale takes place
under a decree, the granting parties do not
fill the character of vendors within the excep-
tion in the 1 W. 4, c. 60, s. 18.—Jn re Blake,
3 Jon. & L. 265. (C.)

IX. Peririons, PRacticr, anp PLeapimnes
1x Lunacy ProcEEepines.

9. On motion to take a bill pro confesso
against the guardian ad litem of a lunatic, the
order was made on the terms of serving notice
on the lunatic’s nearest relations, and on his
guardian.— Crawford v. Kernaghan, 1 Dr. &
Wal. 195. (C.)

10. A petition, presented after the lunatic’s
death, on behalf of the committee, did not
state that fact. It was dismissed for irregu-
larity.—Jn re Briscoe, 2 Dr. & War. 501. (C.)

11. Ina lunacy matter an application to get
money out of Court must be made by petition,
in order that the Court may see the grounds
of the application —ZJn re Ponsonby, 5 I. E. R.
268; 2 Con, & L. 30; 3 Dr. & War. 27. (C.)
Petitions, &c.

1. When the lessor’s interest in a lease for
lives renewable for ever vests in a lunatic, and
some of the lives drop, the tenant, who desires
to replace them, should in the first instance
apply to the committee of the lunatic’s estate,
before applying to the Court.—Jn re Doolan, 3
Dr. & War. 442. (C.)

2. Certificates of lunacy should be given by
medical men unconnected with private lunatic
asylums.—Anon., 6 I. E. R. 387. (C.)

3. Injunction to restrain waste issued with-
out bill filed, in a lunacy matter, on applica-
tion of the receiver.—Jn re Chinnerys, 6 I. E.
R. 469; 1 Jon. & L. 193. (C.)

 

4, A certificate of lunacy will not be
received, if given by a physician who keeps a
private lunatic asylum.— Anon., Dru. Rep.
temp. Sugden, 286. (C.)

6. A petition to grant a renewal to a tenant
under a lease, with covenant for a renewal,
presented by the receiver in a lunacy matter
without the concurrence of the committee of
the estate, will be dismissed with costs.—Jn re
The Earl of Kilkenny, 71. E. R. 594. (C.)

6. Form of order on motion to take bill as
confessed against a person alleged to be of
unsound mind. — Swift v. S., 11 I. E. R. 557.
(R.)

7. The Att.-General is not a necessary party
to a suit on behalf of a person of weak mind,
but not found a lunatic by commission.— Carr
v. Osborne, 11. Jur. 2. (R.)

8. When a defendant in a cause has been
found, by commission, a lunatic, the Court will
not appoint a clerk in Court to answer in the
cause.— Dooley v. Harding, 1 I. Jur. 330. (R.)

9. A lunatic claimed as heir-at-law of T.,
who had devised estates to trustees for chari-
table purposes by a testamentary instrument
of which the validity as a will was impeached.
A suit was instituted. An issue to try the
validity of the instrument was directed as
necessary to free the lunatic’s estate from
doubts. The trustees were directed to con-
duct the suit as ptfs. The verdict was against
the will. Held, that, though the trustees were
not entitled to their costs under the decree,
yet the Court could, on petition, give them
their costs out of the lunatic’s estate.—Jn re
Turnley, 12 I. E.R. 581. (C.)

10. A bill may be filed by the next friend on
behalf of a person of weak mind, and the fit
subject for a commission of lunacy, his pro-
perty being too small to bear the expense
of a commission.— Carr v. Boyce, 13 I. E. R.
102. (R.)

11. The Masters have jurisdiction in cause
petitions under the 15th sec. of the Ch. Reg.
Act, to appoint a guardian ad litem for a
lunatic respondent.— Ashton v. Pollock, 7 I.
Jur. 50. (M.O.)

[LUNACY]

 

Practice. 613

12. Notice of filing a cause petition was
directed to be served on a respondent who was
of unsound mind, and out of the jurisdiction,
by serving the keeper of the lunatic asylum,
and the friend of the lunaticin London. And
liberty was given to petitioner to appoint a
guardian ad litem if respondent’s friends should
neglect to do so. — Bell v. Johnston, 7.1. Jur.
89. (R.)

13. When one of the parties to a cause is a
lunatic, the application to make a consent to
admit documents a rule of Court, ought to be
made to the Lord Ch., even though the cause
is in the list of causes to be heard in the
Rolls.—Litton v. Power, 71. C. BR. 64. (C.)

14, When a person found to be a lunatic has
died after the reference to ascertain the
nature and amount of his property, but before
the Master’s report had been made up, the
Lord Ch. has jurisdiction to direct that the
reference be proceeded with, notwithstanding
the death of the lunatic.—Jn re Singleton, 8 I.
C. R. 268. (C.)

15. C. was found a lunatic, by a jury, on
a trial had before the Commissioners of
Lunacy. This finding was traversed, and a
day fixed for the new trial. The petitioner
declining to incur the expense of opposing the
traverse, the Court was moved to direct the
committee of C.’s fortune to appear by counsel,
at the expense of the estate on the trial of the
traverse. The petitioner’s solicitors expressed
a wish not to interfere further, unless their
costs were secured. The committee had not
visited this country since his appointment, and.
was in Italy. The traverse was to be tried
five days after this motion.

The Court removed the committee; ap-
pointed one of the Masters committee in his
stead; and directed the General Solicitor for
Minors and Lunatics to act under the Master’s
directions in reference to the traverse, and
appearing thereon.—ZJn re Crosbie, 5 I. Jur. N.
S. 257. (C.)

 

MAGISTRATE.
See JusTICE OF THE PEacE.

 

MAINTENANCE.

— Of Infant. See Guardian and Warp, IIT
—Inrant, I—Parent anp Caixp, II—
SerrLeMENT on Marriacgs, III.

— Reference for. See Practicz, Master, Re-
FERENCE TO.

— Of Lunatic. See Lunacy, V.

 

MAINTENANCE OF SUIT.
See CHAMPERTY.

 

MANAGER OF COLONIAL PROPERTY.
See CONSIGNEE.
614

MANOR COURT.
See CoryHotp, IV.

 

MANOR.

— Lord of the. See Copruoxn, VII.

 

MAPS.
See CoprHotp, V.

 

MARITAL RIGHTS.
— Fraud on. See Marriacs, V.

 

MARKET AND MARKET OVERT.

1. Plaintiff, by his bill, sought to have his
right established to fees and dues for weigh-
ing and stallage of goods in a market, whether
weighed or not, alleged to be immemorially
payable in lieu of all other fees and dues in
the market; and for an account of those dues
claimed to be payable by the defendants from
a period at which they had ceased to frequent
the market, and had established themselves
in shops opening into the street in which the
market was held. Plaintiff deduced title, by
grant from the lord of the market, of the offices
of clerk of the markets and weighmaster
within the manor, and “ of.all fees and dues
to the said offices appertaining.” The bill
alleged that the lords of the market had not
been in the habit of receiving those fees, but
of granting them to the clerks and weighmas-
ters, and that the plaintiff's predecessor had
so enjoyed them, or a composition in lieu of
them, from the defendants. Held, that the
grant to the plaintiff did not pass those fees,
which, if legally payable, belonged to the
lord of the market; and plaintiff, having failed
to show any title whatever to the relief prayed,
could not except to the answer for insufficiency
in not affording a discovery in aid of an ac-
count, the right to which depended on that
title.

Semble—Where a bill is demurrable in sub-
stance, by reason of a total want of setting
out of title to the relief prayed, the 36th and
79th G. O. enable a defendant to decline or
omit answering any interrogatory relating to
matters connected with the relief prayed, or
the title to it.

Quere—Whether in such case defendant
might so decline answering other parts of the
bill; and whether, if a bill be demurrable on
any grounds, he may so decline, according to
the decisions of Wigram, V. C., in Tipping v.
Clarke, 2 Hare, 383, and Drake v. Drake, 2
Hare, 647; Kaye v. Wall, 4 Hare, 127.—Rus-
sell v. Beakey, 8I. E. R. 559. (R.)

 

MARRIAGE.

— Abatement of Suit by. SeePracticn, ABATE-
MENT.

— Settlement. See SETTLEMENT ON Marriace.

— Effect of on Trust Term. See Tur, III.

— Revocation of Will by. See Witt, VIII.

— Consent to Marriage. See Conpvition, V.

— Of Lunatic. See Lunacy, VII.

 

[MARKET.—MARRIAGE]]

See Bonn, I1I—Conpirion, V—ConsipERa-
tion, III, 1—Guarpian anp Warp—
Inrant—Jourispiction, VII—Lunatic,
VII— Practicz, Contempt or CourT—
Sratoutss, II, 32.

I. Varipiry or —CLaNDESTINE MarriaGE.
II. Proor or —PERPETUATION OF TESTIMONY
RESPECTING IT.
TIL. Irs Errecr.
IV. Conpitions In RESTRAINT OF.
V. Fraup on Marirat Ricuts.

[Statutes :—9 W.3, c.3 (Ir.); 2 Anne, c. 6,8.
31 (dr.); 6 Anne, c. 16 (Ir.); 8 Anne, c. 3 ({r.) ;
12 G.1, « 8(r.)39 G. % ce. 11(CIr.); 19 G. 2,
c. 13 (Ir.); 23 G. 2, e. 108 (Ir.); 87 G. 8, c. 51;
58 G.3, ¢. 84; 14 G. 4, c. 91; 10 G. 4, c. 345 24
& 25 Vic., v. 100, s. 57; 24 & 25 Vic., c. 98, ss.
35, 36.]

 

I. Vauipiry or Marriace: CLANDESTINE
MarriaGE. -

2. The rule, that every presumption is to be
made in favour of a marriage proved de facto,
does not authorise the presuming as true a
circumstance necessary to the validity of the
marriage (according to the ler loci where it
was celebrated), which, on the evidence, is
not to be believed.—FPiers v. P., 10 I. E. R.
341, (C.)—[Revd.: 2 H. L. Cas. 331; 13
Jur. 569. See s.c., 11 I. E. R. 358 (R.); and
Piers v. Tuite, 1 Dr. & Wal. 298. (C.)]

3. The plaintiff married the defendant, an
alien, and afterwards, by a deed of separation,
not acknowledged, conveyed real and personal
estate, in trust to pay an annuity to the de-
fendant. The trustee covenanted to pay the
annuity, and the plaintiff to indemnify the
trustee. An action having been brought by
the defendant against the trustee, the plain-
tiff filed a bill in her own name for an injunc-
tion and to set aside the deed, insisting that
the defendant, being an alien, could take
nothing under it—that the marriage was not
legal according to the law of Guernsey, where
it was celebrated ; that the plaintiff executed
the deed under the impression that the de-
fendant had by the marriage acquired legal
rights over her property, and that the deed was
not acknowledged by her. The Court refused
to continuean injunction granted until answer,
on any of the grounds except the last.

Semble—The plaintiff, having by her bill
denied the marriage, and having covenanted
to indemnify the trustee, who incurred a legal
liability at her instance, cannot rely on the
deed not being properly acknowledged.—Du-
moncel vy. D., 18 I. E.R. 92. (R.)

4. A marriage, celebrated in England, be-
tween anative and domiciled Scotchman, and
an Irishwoman, may be dissolved by a decree
for a divorce pronounced by the Court of
Session in Scotland.—Maghee v. M‘Allister, 3
I. C. R. 604. (C.)

5. A marriage, celebrated by a R. C. priest
between a R. C. woman and a Protestant,
who represented himself as a R. C., but had
always before been a member of the Esta-
blished Church, and had within the previous
Proof of.

twelve months attended its services—Held
void under the 19 G. 2, c. 13.—Gibbons v. G.,
TI. Jur. N. 8. 63. (Consist.)

1. A minor, having entered into a Scotch
matrimonial contract, of doubtful validity,
became a widow; and entered into the enjoy-
ment of her jointure. There being no evidence
of the Scotch law on that subject, the Court
Held, that the contract had been confirmed.

A Scotch deed, aptly worded, may operate
as a marriage, so that an interest limited to
vest on marriage may pass thereby, although
it could not pass unless vested.—Lockhart’s
Tfust, ex parte Lady Lockhart, 111. Jur. N. 8.
245. (R.)

 

II. Proor or: Prerretuity or Trstimony
RESPECTING IT.

2. Entries, made in the chapel books by
R. C. clergymen, whose death and handwriting
have been proved, are evidence of a marriage
or baptism thereby recorded.— Malone v. L’ Es-
trange, 2 I.E. R.16. (C.)

8. The factum of a marriage, celebrated by
a clergyman of the Church of England, in
1815, being proved, the maxims “ Semper pre-
sumitur pro matrimonio,” and ‘“ Omnia presu-
muntur rite et solenniter esse acta,” which raised
the legal presumption that a special license,
authorising the marriage, existed, can be re-
pelled only by strong, distinct, satisfactory, and
conclusive evidence to the contrary. Every
reasonable possibility of a fact favourable to
the presumption must be rebutted. Held, that
the presumptio juris in favour of the existence
of a special license was not sufficiently repelled
by the evidence of the bishop of the diocese,
thirty years after the factum, that he never
granted a license for the marriage of the
parties in question, and stating the reasons
why he was certain of that fact.—That the
reasonable possibility, not disproved, that the
special license might have been granted by
the late bishop, who died 18 months before the
marriage, suffices to support the prasumptio
juris.—Prers v. P.. 2 H. L. Cas. 331; 13 Jur.
569.—[Revg. 10 I. E. R. 341. (C.) Sees.c.,
11 I. E. R. 358 (R.); and Piers v. Tuite, 1 Dr.
& Wal. 298. (C.)]

 

III. Errect or.

4. If a female defendant against whom pro-
cess has issued, marries pending the suit, the
process will be continued against her and her
husband.—__M‘Namara v. Lysaght, H. & J. 623.
(E.E.)

5. After a deed of submission to arbitra-
tion was executed, E., a female party, whose
rights were principally affected, married. Her
husband took no part in the proceedings. The
arbitrator’s award, reciting the marriage and
the entering of a rule to proceed against E.
and her husband, awarded that they should
pay certain sums; and that C., another party,
was personally liable for costs. The arbitra-
tor had refused to adjourn the case to enable
C. to procure evidence, and the plaintiff had
declared that he would not seek to make C.

[MARRIAGE.]

 

Restraint on. 615

personally liable, in consequence of which{he
consented not to examine C. on his behalf.
A conditional order was obtained to confirm
the award, unless cause in M. Term, and no
motion to set it aside, but cause was shown
against making the order absolute in the sit-
tings after M. Term. Held, that the marriage
of E. was a revocation of the jurisdiction of
the arbitrator.

That the husband did no act to waive the
revocation, and not being a party to the sub-
mission, he could not be bound by it.

That objections dehors the award are exa-
minable on a rule to show cause against con-
firming it.

That the arbitrator, in refusing to adjourn
for further evidence, had acted precipitately,
and the plaintiff had broken the compact with
C. in making him personally liable; and this
Court would therefore not lend its aid to effec-
tuate an award which it does not know to be
just.

Semble—The 3 & 4 Vic., c. 105, s. 36, does
not apply to Courts of Equity—Roche v. R.,
81 E.R. 638. (R.)

 

IV. Conpitions 1n Restraint of Marriace.

6. Lands devised to three sons in such
shares, &c., as A. should appoint, in default of
appointment as tenants in common, were set-
tled by A.’s direction, the share of each son
on himself for life, remainder, if he should
marry with the consent of A., but not other-
wise, to secure a jointure, subject to his ap-
pointment, to such woman or women as he
should so marry, with a power to him, if he
should marry with such consent, but not
otherwise, to charge £500 for his younger
children, remainders in strict settlement. One
son married first with consent, and then after
A.’s death without it. Held, that the consent
to the first marriage did not dispense with the
necessity of a consent to the second: but, on
the apparent intention, that the condition of
obtaining A.’s consent having become impos-
sible by his death, the powers did not cease,
but might be exercised in favour of the wife
and children of the second marriage.

A. having power to charge £500 and appoint
it among his younger children, by articles on
his first marriage, charged it for the benefit of
the younger children of that marriage. He
married again. There were younger children
of both marriages. By will he appointed
nominal shares to the children of the first,
and the entire substantially to those of the
second marriage. Held, that the power in-
cluded all younger children, and that the
articles therefore became invalid as an ap-
pointment after the second marriage, and that
the power might be re-exercised : but that the
articles were a contract to exercise it substan-
tially for the children of the first marriage,
and controlled the power; and that the testa-
mentary appointment was therefore also in-
valid, and the fund should be divided equally
among the younger children of the first mar-
riage, and the younger children of the second
marriage, as a class.— Greene v. G., 8 I. E. R.
473; 2 Jon. & L. 529. (C.)
616 Conditions

1. V. devised all his real, freehold, and per-
sonal property to his son, “in case he shall re-
cover from his present illness,” and made his
daughter “‘residuary legatee ;” recommending
her, if she married, to have such property as
he left ber settled to her separate use. Both
son and daughter survived V.

Semble—The condition annexed to the de-
vise to the son was void, or only extended to
his surviving V., when he would take the pro-
perty absolutely—Aleyne v. A. 8 I. E. R.
493 ;2 Jon. & L. 544. (C.)

2. A. devised lands to his sons, and left le-
gacies to his daughters, to be paid at twenty-
one, or marriage with consent; and in case any
or either of them should at any time there-
after intermarry with a Papist or person pro-
fessing the R. Catholic or Popish religion, or
a reputed Papist, he thereby revoked, annulled,
and made void the devises and bequests made
to such child or children, and he left to each
of his children so offending one shilling, and
devised and bequeathed such child’s or chil-
dren’s devises or shares over.

Semble—The condition is legal, and is not
limited to the period of payment of the le-
gacies, but extends to the whole life of the
daughters.

Held, that a daughter, who married a R. Ca-
tholic, was entitled to the interest due before
the condition broken.—Duggan v. Kelly, 10 I.
E. R. 295. (R.)

3. Bequest of an annuity of £50 to a widow,
for life, provided she did not marry again.
Held, that the annuity determined on her se-
cond marriage; and that the proviso was not
a condition subsequent so as to be void.—
In re Corkers, 11. Jur. 316. (C.)

4. Testator bequeathed all his property to
be invested, and to pay out of the proceeds to
his daughter E. £10,000, on her attaining
twenty-one years, or on the day of her marriage,
if the same should occur before she should be
twenty-one, provided it should be had with
the consent of his trustees, but not otherwise ;
and directed the trustees to pay out of the in-
terest a sum for maintenance, until she should
be twenty-one or marry, with such consent,
the surplus to be invested and then paid to
her. After similar bequests to other daughters,
he bequeathed all the residue to his daughters
E., and the others, share and share alike; and
if any of his daughters should happen to die
before her or their attaining age and unmarried,
then he directed that aswell her portion as her
share of the residue should go and be divided
share and share alike among the survivors. By
a codicil he directed that if any of his daugh-
ters should, before their respective ages, inter-
marry without consent, the interest only of such
daughter’s portion or such daughters’ portions
should be paid to her or them for life, for her
or their separate use; and after her or their
death the portion or portions should go to all
and every the child or children of such daugh-
ter so marrying, to be equally divided, and to
be paid at twenty-one or marriage, with inte-
rest from the mother’s death. E. married P.

’

[MARRIAGE.]

 

Restraining it.

without consent, and died under age, leaving
a son, who died under age and unmarried.

Held, that the gift of the £10,000, vested in
E.’s son, and passed to P. as his representa-
tive ; that the marriage referred to in the be-
quest of the residue meant, as in the preced-
ing bequest, a marriage with consent; that the
portions referred to in the codicil did not in-
clude the residue, and that the share of it there-
fore vested neither in E. nor her son.— Hackett
vy. Lord Oxmantown, 12 I. E. R. 534. (C.)

5. H. by will, made D., his eldest son, tenant
for life of his real estates, with a power of
jointuring if he married with the consent of the
executors and guardian appointed by the will ;
and appointed A., B., and C., executors, and
nominated C. guardian. A. andB. renounced:
C. alone took out probate. D., while a minor,
without any consent, and without banns or
license, married E., who was under age. After-
wards, a regular marriage was by C.’s consent
solemnized between D. and E. D.executeda
post-nuptial settlement, in which he appointed,
for valuable consideration, a jointure to E.
Held, that the consent of C. alone to the mar-
riage gave rise to the power: and that his
consent to a subsequent valid marriage was
sufficient, although a marriage voidable under
the 9 G. 2, ¢. 11, and 23 G. 2, c. 10 (r.), had
previously been celebrated between D. and E.
—Dobbyn v. Adams, 11. Jur. N.S. 400; 61. C.
R. 170. (R.)

6. T. devised lands to F., his eldest son, for
life, remainder to F.’s first and other sons in
tail male, remainders over ; and a power to F.
to appoint a jointure to any wife he should
marry, provided such marriage should be with
the assent of the guardians and executors of
the will, or the survivor of them; E., T.’s wife,
and two other persons, were named executors,
of the will, and E. alone was named as guardian
of his children. E. alone proved the will, the
other two executors subsequently disclaiming.
F., in the year 1843, while a minor, was mar-
ried to S., by a person in holy orders, but
without license or publication of banns, and
without the consent of E. E. subsequently
consented to the celebration of a formal mar-
riage between F.and $8. Held, that the join-
turing power could not be exercised in favour
of S.—Dobbyn v. Adams, 7 I. C. R. 193; 21.
Jur. N. 8. 143. (C.)—[Appeal from Rolls: 6
IC. R.170; 11. Jur. N.8. 400.]—See Adams
vy. Adams, 8I.C. R.41. (C.)

7. T. devised lands to F., his eldest son, for
life, with remainder to F.’s first and other sons,
in tail male, with remainders over, and a
power to F. to appoint a jointure to any wife
he should marry; together with any sum not
exceeding £3000, for the younger children of
such marriage, provided such marriage should
be with the assent of the guardians and
executors of the will, or the survivor of them.
E., T.’s wife, and two other persons, were
named executors of the will, and E. alone was
named as guardian of his children. E. alone
proved the will, the other two executors sub-
sequently disclaiming. F., in the year 1848,
while a minor, was married to §., by a person
[MARRIAGE.—MASTER.]

in holy orders, but without license or publica-
tion of banns, and without the consent of E.
E. subsequently consented to the celebration
of a formal marriage between F.andS. Held,
that the power of charging could not be
exercised in favour of the younger children of
F. and S., as the irregular marriage, not having
been avoided by suit, under 9 G. 2, ¢. 11 (Ir.),
was valid ad znitiv, and the subsequent regular
marriage therefore inoperative.—A dams v. A.,
81. C. R. 41; Dr. Rep. temp. Napier, 247.
(C.)—[See Dodbbyn v. Adams, 6 I. C. R. 170.
(R.); 71.C. R. 193. (C.)]

1. V. bequeathed to his daughter H. an
annuity of £100 a-year, and to four other
daughters annuities of £50 each, which were
not to be paid to them until after their
mother’s decease, unless they married, or
their mother had some particular reason for
making them such payments. V. left H., if
she was unmarried at her mother’s death, an
annuity of £500 thereafter, in addition to the
£100 a-year previously bequeathed. If A.
married she was not to have more than £100
a-year; which she might leave as she pleased;
and the £500 a-year was to merge in the real
estate on which the annuities were charged.
If his other daughters were unmarried at their
mother’s decease, and A. was then married or
dead, each was to have £100 a-year in addition
to the £50 a-year as a maintenance for them ;
butso long as A. received the annuity of £500
they were to have no more than an annuity
of £50 each, as they would reside with her.
If any daughter married without her mother’s
consent, or that of their brother, after the
mother’s decease, she would have only a life
annuity of £50 a-year, payable to her own
receipt. V.’s wife pre-deceased him. At his
death, H. and another daughter, E., were
unmarried. Held, that after the determina-
tion of the annuity of £500 by A.’s marriage,
E. was entitled to the annuity of £100, which
did not determine when she married with her
brother’s consent.—In re Newcomens Minors,
161.C.R. 315. (R.)

 

MARRIAGE ARTICLES AND
SETTLEMENT.

See SETTLEMENT.
[See 20 & 21 Vic., v. 57.]

 

MARSHAL OF KING’S BENCH.

2. The Marshal of the Four-courts Marshal-
sea cannot detain a prisoner upon an attach-
ment directed to the Sheriff of the city of
Dublin. ‘

Semble—In order to fix the Marshal with the
amount of a writ, the writ must be delivered
to him or one of his officers. The mere de-
livery of it to a person who opened the Mar-
shalsea is not sufficient.—Napier v. Molyneuz,
S. & Sc, 485. (R.)

 

MARSHALLING.
— Assets. See Cuarity, III, 3—Exxzcvuror,
2
— Securities. See Priority or SECURITIES.

 

617

3. A., seized of the lands of G., subject to a
charge for B., gave a judgment to secure a
further charge for B. By a post-nuptial in-
strument A. settled G. (subject to the charge
for B., but misstating its amount) upon him-
self for life; remainder to his eldest son for
life; remainder over in strict settlement.
On the marriage of A.’s eldest son the post-
nuptial settlement was adopted. B.’s judg-
ment was paid out of A.’s life estate. Held,
that the judgment creditors of A., after the
settlement, had no equity to raise for their
benefit, out of the inheritance, the amount
paid out of A.’s life estate on foot of B.’s
judgment. When there is a notice of motion
served for the hearing of the cause, it is in
the discretion of the Court whether the
motion or the cause shall first be heard.—
Stock v. Aylward, 81. C. R. 429; Dru. Rep.
temp. Napier, 378. (C.)

 

MASTER.

— Accounts before. See Account, VIII.

— Evidence before. See Practicr, EVIDENCE.

— Examination before. See ibid.

— Proceedings before. See PRacTICE, MasTER,
PROCEEDINGS BEFORE.

— Reference to. See ibid.

 

MASTER EXTRAORDINARY.
[Abolished: 30 & 81 Vic., c. 44, 8. 75.]
See Practice, OrricEr oF Court, 7.

 

MASTER IN CHANCERY,

(Abolished, except Receiver Master,
80 & 81 Vic., c. 44, s. 27.]

See Practice, Orricer or Court, 6.

 

 

MASTER’S OFFICE.

— Accounts in. See Account, VIII.
— Proceedings in. See Practicz, MastTEr,
PROCEEDINGS BEFORE.

 

MASTER OF THE ROLLS.
Sce JortsprcTi0n, II.

 

MASTER AND SERVANT — MASTER
AND APPRENTICE.

[See 80 & 81 Vic., c. 141.)

See Apprentice — Bankruptcy, XI. 1—
Fravup, VII, 5—Princrpay & AGENT.

4, A suit cannot be sustained which seeks
to enforce an agreement for the continuance
of the plaintiffs duties or personal services to
the defendant, inasmuch as those services
might be rendered in a manner productive of
injury rather than benefit to the latter; and
the Court does not possess the means of com-
pelling a person to fulfil his duty to his
employer under such a contract. Therefore,
where it was agreed that the respondent should

78
618 Generally.

“continue to employ the petitioner as sales-
man” for the purpose of disposing of his stock
in trade, on certain terms, some of which
tended to show that a sale of that stock to
the petitioner was thereby intended, but
others positively showed that a relation ap-
proaching to that of shopman and owner was
for a time to exist between the parties, a
petition praying that the agreement might be
specifically performed and carried into exe-
cution was dismissed,

Semble—That, vice versa, the employer could
not have maintained a suit to oblige the
other party to discharge his duty according
to the agreement.

Semble, also—That where a date has not
been specified in the agreement, although
intended to be so, as that at which an im-
portant obligation is to arise, this would
of itself be, on the ground of uncertainty, an
adequate reason for not enforcing the con-
tract.—fitzpatrick v. Nolan, 1 I. C. R. 671.

C.)

 

MATRIMONIAL MATTERS.
See Jurispictron, VII.

 

MATTERS OF FACT AND LAW.
See Jurispicrion, V.

 

MEMBERS OF PARLIAMENT.

See Banxrurprey, IV. 2. b—DrrEp, V.—PEERS-
Statutes, 1 W. 4, c. 36, Rule 13-5 & 6
W. 4, c. 16, ss. 9, 10—6 G. 4, c. 16, 8.9;
45 G. 3, c. 124, ss. 4,5 —47 G. 8, ¢. 40,
s.1; 80 & 31 Vic., ¢. 102.

 

MEMORIAL.
See Annuity, II—Dererps, XII.

 

MERCHANT’S ACCOUNT.
See Account, VI.

 

MERGER.
I. Genera.ty.
II. Or Estates, &c.
III. Or Dests, Secunriries, Cuarces, &c.
[See Copyuotp, V—Estare, VIII, 2. e—Por-
tion, VIII—Powers, XI.]

 

I. Or Mercer GENERALLY.

1. A lease for lives by way of renewal,
made while the former lease is subsisting, and
not surrendered, being outstanding in other
parties, though intended to operate in posses-
sion, passes a good legal estate.

Five-sixths of the legal estate being out-
standing in other persons, two of whom owned
a@ moiety beneficially, B., on behalf of his
son, who was entitled to the other sixth and

[MERGER.]

 

Of Estates.

moiety, took a renewal and lived nearly 20
years, when his estate descended to the son.
On a question as to the line of descent from
the son— Held, it could not be presumed
either that there had been a conveyance of
the five-sixths to B. or a surrender of them.

Semble—The doctrine of Thomas v. Cook, 2
B. & Ald. 119 (surrender by acquiesence), does
not apply to estates of freehold. Lynch v L.,
61. L. R. 131, on this point questioned.

An estate pur autre vie will not merge in an
estate for the same life in remainder, whether
created by the same or different instruments.

Lewis Bowles’s case (11 Rep. 81 A.) and
Williams v. W., 15 Ves. 419, explained and
observed upon. — Creagh v. Blood, 8 I. E. R.
688; 3 Jon. & L. 133. (C.)

 

II. Mercer or Estates.

2. When a tenant in tail of an equitable
estate takes a conveyance to himself and his
heirs of the legal estate, the equitable estate
tail does not merge in the legal fee.—Stoney
v. Saunders, H. & J.519. (E.E.)

3. A man shall not be made occupant against
his will, so as to drown a prior estate which he
had in the lands.—[ Lewis Bowles’s case, 11 Rep.
79, and Williams v. W., 15 Ves. 419, consi-
dered and explained. ]— Creagh v. Blood, 8 I. E.
R. 688; 3 Jon. & L. 133. (C.)

4. The owner of a leasehold for years mort-
gaged it, and afterwards, in 1820, confessed
judgments. He, in 1824, acquired a freehold
estate in the same lands. In a suit pending
after the passing of the 3 & 4 Vic., c. 105—
Held, that, the freehold having been acquired
before that Act, the judgment creditor had
no equity to prevent the term, though an
equity of redemption, being merged as against
him.—Smith v. Chichester, 12 I. E. R. 519.
(C.)

5. An elegit creditor in possession leased
the extended lands for 21 years, provided his
estate should last so long. Before the debt
was paid off, or the years had expired, the
lands were sold under a decree in a creditor’s
suit, and conveyed to a purchaser. The con-
veyance was executed by the administrator of
the elegit creditor. Held, that though the
estate by elegit was merged by the conveyance,
as between the creditor and the purchaser, it
had continuance as between the purchaser and
the lessee, to support the lease which still
existed at Law; but that the lease in Equity
was at an end. Serndble, the Court would enjoin
the lessee from enforcing his legal title under
it.

Nature of the estate by elegit, and modes by
which it may be determined— Williams v.
Morris, 13 1. B. R. 147. (R.)

6. Lands held for lives, renewable for ever,
were conveyed by marriage settlement to
trustees to the use of A. for life; remainder,
subject to a jointure, upon trusts, to convey
for the benefit of the issue of the marriage ; in
default of issue, as he should appoint; in
Of Estates.

default of appointment, to the heirs of A.
There being no issue, A., in 1854, devised the
lands, stating that he held them for lives
renewable for ever, to B. for life, subject to
the rent and renewal fines payable thereout ;
and devised all the residue of his property to
his executors, C. and D. In 1856, one of the
lives in the original lease subsisting, a f.f. grant
of the lands was made to A., under the Ren.
Lease. Conv. Act, subject to a rent; and, in
1857, A. purchased and obtained a convey-
ance of the f.f. rent. Held, that the devise
of the lands to B. was not affected by thef. f.
grant; but that the rent was not merged or
extinguished, and_passed under the residuary
devise to C. and D.—Dizon v. Rowan, 9 I. GC.
R. 365. (R.)

 

II. Mercer or Desrs, Securities, Leca-
cles, Cuarcss, &c.

1. By deed of 1812, lands were settled, sub-
ject to outstanding incumbrances, on A. for
life ; remainder to his first and other sons in
tail. In 1816 A. granted B. annuities charged
on his life estate. In 1818 A. paid off some
of the prior incumbrances, and had them
assigned to a trustee for his own benefit. In
1820, A. and the trustee joined in assigning to
C., for value, those incumbrances. Held, that
the arrears of the interest of those charges
were incumbrances on the life estate prior to
the annuitant, and that, as against him, the
interest payable on those charges out of the
life estate had not been merged by the deal-
ings of the owner of the life estate therewith.
Harman v. Forster, 1 Dr. & Wal. 637. (C.)

2. H. devised his real estates to his wife
and three daughters, A., B., and C., in equal
shares; and by a codicil bequeathed to his
daughter A., £1000, charged on all his real and
personal estate. A. married, and her husband
joined her in conveying her undivided fourth
of the real estate to trustees free from
incumbrances, &c., by a post-nuptial settle-
ment, which was held not binding on the wife,
no fine having been levied by her. Held, that
the fourth part of the legacy was not merged
in the estate devised to A. by the will; but
that the husband, by the settlement, released
A.’s fourth of the real estate from the legacy.—
Walpole v. M‘Clintock, 7 I. E. R. 858. (C.)

3. A father, tenant for life, with power to
charge £500 for younger children, and his son,
tenant in tail, re-settled the estate, to the use
that the son should receive a rentcharge of
£100 for their lives and that of the survivor,
with powers of distress and entry for non-pay-
ment; then to the use of the father for life,
with power to charge an additional £1000 for
younger children; then to the son in tail.
Held, that although, if it was the intent to give
the annuity priority over the £1000, equity
would not allow a legal merger to destroy it;
yet, on the true construction, it was not in-
tended that it should exist after the father’s
death, though granted for the son’s life; and
therefore that the general rule, giving priority
in family settlements to charges for younger

[MERGER]

 

Of Debts. 619

children should prevail.— Mills v. M., 9 I. E.
R. 299; 3 Jon. & L. 242. (C.)

4. A., entitled to an equity of redemption,
agreed with F. for a loan, for which he con-
sented to grant an annuity out of the mort-
gaged premises. The sum advanced was
exactly equal to that due upon the mortgage,
and was paid to the mortgagee, who assigned
the premises to B., A.’s brother, without de-
claring any trust. On the following day, A.
and B. joined in granting an annuity to F.,
out of the mortgaged as well as other lands.
This deed vested a term of 200 years in a
trustee to secure the annuity. There was a
judgment collateral entered up at the suit
of F., against A. and B. Held, that there
was no extinguishment of the mortgage debt,
and that F. was entitled, as against a mort-
gage puisne to the paid-off mortgage, but
prior to the deed of annuity, to the benefit of
the paid-off security to the extent of the
money due to himself.— Walcott v. Condon, 6
I. Jur. 15. (C.)

5. A judgment debtor arranged to secure
his creditors 6s. 8d. in the pound, and for this
purpose executed a mortgage of premises,
which eventually proved insufficient to pa:
more than 2s. in the pound. Held, that the
judgment creditors could not resort to the
security of the judgment.—In re Read, 6 I.
Jur. 330. (LE.C.)

6. In 1823, lands subject to several charges,
secured by terms of years, stood limited to
the use of M. for life; remainder to J., his
eldest son, for life; remainder to such uses
as J. should by any deed or by will ap-
point. A portion of the lands was subject to
a mortgage prior to the charges. M. bought
several of the charges; had them assigned to
a trustee for him ; and died, having bequeathed
these charges to his wife for life, and after
her decease to such of her children or grand-
children as she should appoint. She by deed
appointed these charges to J. after her own
death, and, in 1848, died. In 1849, J. bought
two others of the charges, and had the lands
released from them. In 1852, with the inten-
tion of borrowing money on mortgage, he
appointed the lands to himself in fee. In the
correspondence about the intended loan, he
was apprised that his solicitor considered the
charges to be merged in the inheritance, and
he expressed an intention of charging the
lands with a jointure for his wife, and a por-
tion for his daughter. By judgment and
otherwise he had, previously to his mother’s
death, created incumbrances on the lands
puisne to the family charges. The terms con-
tinued outstanding. The lands being sufii-
cient to pay the family charges and the prior
mortgage—Held, that inasmuch as there was
no evidence of an intention expressed by J.,
to keep the charges alive, and as: it could not
be shown that it was for his interest to do so,
they must be considered, as between his real
and personal representatives, as merged in
the inheritance.

The doctrine of this Court as to the merger
620

of charges considered.—Purcell y. P., 5 1.C.
R. 502; 11. Jur. N. 8.141. (C.)

 

MESNE PROFITS.
See INTERMEDIATE PROFITS.

 

MESSENGER.

See Bankruptcy, VI, 14, c.—Practice,
MESSENGER.

[20 & 21 Vic., c. 60: ss. 62, 69-76.]

 

MILLS.
See Titnes, III.

 

MINES.
See ACCOUNT—PARTNERSHIP.

1. A tenant for lives renewable for ever,
having demised for years part of the lands
upon which there was at the time an open
quarry (which he was in the habit of working
for sale), without any reservation or exception
in sub-lease—Held, the sub-tenant was not
entitled to work the quarry for sale, and that
his landlord had the right to enjoin him.
There is no analogy between open quarries
and mines.—Mangfield v. Crawford, 9 I. E. R.
272. (R.)

 

MINUTES.
— Varying. See Pracricz, DEcREE, 13.

 

MISDESCRIPTION.
See AGREEMENT, VIII, 2, b.

 

MISREPRESENTATION.

See Bonp, II—Derep, VI—Fravup, VI—
AGREEMENT, VIII, 2, b.

 

MISSIVE.
See Letter Missive.

 

MISTAKE.
I. In GENERAL.
II. In Law or Fact.
III. In Deeps or Written Documents.
IV. In Lecat Proceepines.
See Deeps, I—Practicer, Orricers or Court,
1, b.—Serriement, [X—Wu1, XIV.

 

II. In Law or Fact.

2. When two parties, under a mistake of
fact, enter into an agreement, either of them
has a title to come to Equity to be relieved
from it. That relief will be given on the prin-
ciples of good conscience alone.—Cooper v.
Phibbs, L. Rep. 2 H. L. 149.—[Revg. s. c., 17
LC.R. 73. (C.] ,

 

[MISTAKE.—MONEY.]

Il. In Dexps or Written DocumENTs.

3. In pursuance of an order “that the ptf.
should give security by recognizance in the
sum of £827, being the sum stated in the an-
swer of the deft. to be due for rent,” a recog-
nizance was entered into reciting the order,
but by mistake conditioned for payment of
such sum as should be decreed for mesnerates.
The Court, to enable defts. to put the recog-
nizance in suit against the sureties, ordered
ptfs. to pay £827 as and for the mesne rates
of the lands in the pleadings mentioned.
O'Leary v. Purcell, 3 1. E. R. 329; Fl. & K.
126. (R.)

 

IV. In Lecat PRoceEDINGS.

4. In a former suit L. filed a charge claim-
ing £1800, with interest at £6 per cent. from
the 11th of May 1818. The deft. C., the debtor,
filed a discharge thereto, admitting the debt,
and that same was due with interest at £6 per
cent. from the 11th May 1818. By a mistake
in the Master’s report, it appeared that the
interest was due only from the 24th April
1824. The account having been taken. and
the report made without controversy, the mis-
take was not observed. The final decree
followed the report. lL. received the £1800
with interest from the 24th April 1824. After
several years the residue of the funds in that
suit was transferred to the present cause,
which was to administer C.’s assets. L., having
discovered the mistake, applied to be paid the
difference (between the interest really due and
that received) out of the transferred fund.
Held, that he should be so paid.—Hackett v.
Donnelly, 1 1. E. R. 231. (R.)

 

MODUS.
See Tirwes, X.

 

MONEY DIRECTED TO BE INVESTED
IN LAND

(See Estate, I, 2, b.]
I. In GENERAL.
Il. WHEN IT GOES TO THE HEIR.
Ill. Wuen 11 Gors To THE Personal RE-
PRESENTATIVES.

 

I. In GENERAL.

5. V. bequeathed £500 to his daughter, C.,
and directed its investment in government
stock, in trust that his executors should lay it
out in buying lands in Ireland, or rentcharges,
annuities, or other beneficial estates or inter-
ests; and settle them to the uses, &c., there-
after mentioned, namely, in trust to settle the
estates to be purchased, and to begin paying
their rents for C.’s benefit so soon as she at-
tained age or married; further, to settle those
estates upon her marriage, so that they should
be free from the control, &c., and not subject
to the debts, &c., of any husband; with full
power to C., notwithstanding her covertures,
to dispose by will of these estates as she should
think fit. C., having attained age, married.
No settlement was executed. The executors
paid the £500 into Court in a suit instituted
Generally.

for the purpose. C. and her husband applied
to have it paid to them. Held, that C. took
only a life estate in the lands to be purchased,
with power to dispose thereof by will: that V.
had manifested an intention that the interest
given to C. should be settled to her sole use,
independently of her husband, and that she
should not have an alienating power; and
that she and her husband were not entitled to
be paid the £500.— Marken v. Magrath, 3 I E.
R. 566. (E.E.)

 

MORTGAGE.

— Decree for Foreclosure and Redemption of.
See DECREE.

— Reference touching Foreclosure § Redemption.
See Practice, Master, REFERNCE TO.

See Bankruptcy, XII, 2—Inranr, IV—

[See 11 & 12 G. 3, c. 10 (Ir.); 17 & 18 Vic., c.
104; 18& 14 Vic., c. 29; 23.& 24 Vic., ¢. 145.1

Lenera or Time, IV—Starute, I, 33.

I—In GeneRaAL—Its ConsTITUTION AND
VALIDITY. .
IL.—Its Nature, Incipents, anp Errect—
How AFrrecrep By WILL, &c.—WHE-
THER IT DESCENDS AS LAND or Money.
TII.—Morteacor anp MortcaceEe.

1. Their several respective and relative
Rights, Duties, and Liabilities.
2. Mortgagee in Possession.
a. His Duties, Rights, Sc.
b. How controlled by Receiver, Sc.
3. Accounts and Interest on Accounts,
§c.—Of Allowances, and when
Bills le for them.
a. In general—when Bill lies
Sor them.
b. Interest thereon.
c. Allowances for Costs, Ex-
penses, and otherwise.

IV.—CaseEs OF TWO OR MORE MorTGAGES.

1. Equities between—when Receiver
will be appointed.
2. Of Tacking Securities.

V.—REDEMPTION OF.

1. Equity of Redemption—TIts Inci-
dents, Sc.

2. Redemption under Statutes.

3. Who is entitled to Redeem, or to be
Redeemed.

4. Terms of Redemption—Extension of
Security.

5. Reconveyance.

6. How barred.

7. Practice on Bills to Redeem, and

Enlarging Time for Redemption.
‘VI.—FoRECLOSURE OF.

. Nature and Effect of.

. At whose Suit.

. When Decreed, and against whom.

. Foreclosure under Statute.

. Opening a Foreclosure.

. Practice on Bills to Foreclose.

VIL—Wuen a SALE WILL BE DIRECTED BY
THE COURT, AND WHEN ALLOWED
GENERALLY. Tue IncIDENTS [OF
Suits ror.

HDoPwbdpor

[MORTGAGE]

When valid. 621

VIII.—ASsIGNMENT OF.
IX.—Morteéace Money.

1. Payment and Tender of —When
Satisfaction of Mortgage is pre-
sumed.

2. To whom the Mortgage Money be-
longs on Redemption.

3. From what Fund to be Paid, and by
whom.

4. The Interest on Mortgage.

X.—EQuitaBLeE Morte aces.

1. How Created.

2. Rights, Duties, and Liabilities of
Equitable Mortgagees.

XI.—WELsz.

XII.—Jupement Mortcaces.

XIII.—Rieuts Between Morreacer, AND
JUDGMENT CREDITORS OR OTHERS.

 

I. MortGaGE GENERALLY: ITS CONSTITUTION
AND VALIDITY.

1. A receiver in a mortgage cause will not
be permitted to bring an ejectment on the title
against a lessee of the mortgagor after mort-
gage executed, when the lessee has been in
possession for twenty years, when the consi-
deration for the mortgage security has been
impeached by a cross bill, and the mortgagee
has not proceeded for eighteen years to fore-
close his mortgage after it was so impeached,
and no account has been taken between the
parties.—Martin v. Walker, 8. & Sc. 139. (R.)

2. A father, entitled to a sum on mortgage,
covenanted, on the marriage of his daughter,
that a specified part of it should be transferred
to the trustees of the marriage settlement
within three months after his death; and to
pay interest in the meantime. The covenant
was held to amount to an actual assignment.—
Brownlow v. Earl of Meath, 2 1. E. R. 383. (C.)

8. When a mortgage contains a borrowing
clause it is not necessary that each subsequent
advance by the mortgagee to the mortgagor,
should be distinctly and expressly referred to
the borrowing clause. The presumption ap-
pears to be that the advance is made on the
security of the mortgage. Cairncross vy. Brad-
ley, 2 Dr. & Wal. 482. (C.)

4. Quere—Touching the validity of a mort-
gage for untaxed costs, and the right to charge
interest thereon from the date of the mortgage
deed ?—Lawless v. Mansfield, 4 I. E. R. 118; 1
Dr. & War. 557. (C.)—[See Blagrave v. Routh,
2 Kaye & J. 509; 8 De Gex, M. & G. 620.]

5. Although by the mortgage deed no day
was fixed for repayment, yet there being a
covenant by the borrower to pay when required
to do so, and a covenant by the lender to re-
convey upon being repaid, it was held, that a
bill for foreclosure and sale was maintainable.

A Court of Equity will presume an instru-
ment of this nature, intended as a security for
money advanced, to be an ordinary mortgage,
and the lender entitled to the usual remedies
of a mortgagor, unless the terms of the instru-

 
622 Generally.

ment exclude such a construction.—Balfe v.
Lord, 41. E. R. 648; 2 Dr. & War. 480; 1
Con. & L. 519. (C.)

1. It is quite settled that.a mortgage to
secure future costs is void, as being against
public policy. In this case it appeared that a
large proportion of the costs was incurred after
the execution of the mortgage, and, therefore,
as to those costs, the solicitor did not, in fact,
obtain any security to alter or affect his rights
as solicitor.— Willens v. Tandy, 5 I. E. R. 4.

(R.)

2. A conveyance by A. of lands to a trustee,
reciting that A. was indebted to B. in thesum
of £4000, in trust, “out of the interest, pro-
ceeds, or annual rent thereof, to pay the head
rent, and also the premiums of insurance upon
the life of A. for £500, and also to pay over to
B. thesum of £400, with interest at £6 per cent.
until paid, and after the payment thereof to
reconvey to A.” Held, not to constitute B. a
mortgagee, so as to entitle him to foreclose,
but merely to give him the right to be paid
out of the rents and profits—— Taylor v. Emer-
son, 61. E.R. 224; 4 Dr. & War. 117; 2 Con. &
L, 658. (C.)

3. When a mortgagor has given the mort-
gagee a power of sale, a purchaser has been
obliged to accept conveyances from the mort-
gagee possessing such power of sale, even when
the mortgagor had covenanted to join in the
conveyance, and afterwards refused to do so;
Corder v. Morgan (18 Ves. 344); and such is
now considered the established rule—Alex-
ander v. Crosbie, 6 I. E. R. 518. (R.)

4, A father, having a power of appointment
among his children, appointed a large portion
of the property to one son, who shortly after
mortgaged it by deed. Both deeds were pre-
pared by the mortgagee’s solicitor, but were
attested by the family solicitor of the father
and son. The mortgage and receipt endorsed
treated the money as paid to the son; but the
father, who had a legal estate, was a party tothe
mortgage, and the mortgagee wrote a letter of
the same date to the father, promising not
to call in the money for three years. Both
father and son joined in a collateral bond.
The draft mortgage furnished to the family
solicitor differed in date from that executed.
An underhand agreement was alleged, but
not proved, to have been made by the mort-
gagee’s solicitor, against whom the bill was
dismissed by consent. There was no proof
that the father received the money, except a
transfer to his credit at a banker’s, a con-
siderable time after. He became a bankrupt
some years subsequently. In a suit to im-
peach the transaction as a fraud on the power,
and unfair—Held, that although the transac-
tion was suspicious, it must be supported in
favour of the mortagee.—Hamilton v. Kirwan,
81. E.R. 278; 2 Jon. & L. 393. (C.)

5. A., being in prison as an insolvent, as-
signed to B. a leasehold interest for a sum of
money which discharged all A.’s debts, includ-

[MORTGAGE]

 

When valid.

ing debts to B. and head rent, but was less
than the value. The deed purported to be an
absolute sale, but there was an endorsement
that if A. paid B., upon a day named, the pur-
chase money and costs, and all expenses of
cropping the farm, B. would re-assign the
lands and the deed should be void. B. also, a
few days after, gave a bond to surrender the
premises if paid on the day. The same attor-
ney acted for both parties. Held, that the
transaction was a mortgage and not a con-
ditional sale-—Feev. Cobine, 11 I. E.R. 406. (C.)

6. L., being a stockbroker and notary pub-
lic, and also largely engaged in trade as a
merchant, received money from some of his
customers, and paid it out again upon their
drafts, and occasionally discounted bills; but
neither held himself out to the public asa
banker, nor appeared to be considered by the
public as such. The entries of banking trans-
actions in his books were mixed up with those
appertaining to his callings as a stockbroker
and trader. Held, that he was not a banker
within the operation of the 33 G. 2,c.14 Ir.) ;
and therefore that a mortgage executed by him
was not void as against his creditors by reason
of its not having been registered pursuant to
the provisions of the statute.

Quere—Whether the statute in that behalf
applies to bankers who do not issue notes ?—
Stafford v. Henry, 12 I. E. R. 400. (E.E.)

7. A., for an expressed consideration of
£144, by deed of assignment, absolute in its
form, assigned to B. a life policy of assurance
for £999. The deed did not contain any
clause authorising B. to sue upon the policy
(which was of doubtful validity) in the name
of A. Contemporaneously with the assign-
ment A. executed to B. a bond, conditioned
for payment of the £144, withinterest. The
actual consideration of the assignment and
bond was the same £144, and consisted partly
of a prior debt due by A. to B. in respect of
some bills of exchange discounted for A. by
B., nearly amounting to £119, and the residue
consisted of £25 cash, of which £20 were paid
by B. to A., and the remaining £5 were
retained by B. and handed by him, in payment
of the costs of the assignment and bond, to
the person who preparedthem. From the time
of the assignment, B. paid the premiums on
the policy into a Savings Bank, with notice
thereof to the Co., who had refused to receive
them when tendered by B. On the death of
the insured, B., with the consent of A., sued
the Co, in A.’s name, and eventually compro-
mised the action on payment of £600 to him-
self (B.). Held, on a bill filed by A. against
B., that the assignment of the policy operated
by way of mortgage, and not absolutely, and
that therefore A. was entitled to an account
in respect of the proceeds; but that B. should
have his costs as in an ordinary redemption
suit, and also the costs of the proceedings
against the Co.—Murphy v. Taylor, 11. C. R.
92; 31. Jur. 85. (C.)

8. A., who had married in 1832, purchased
an estate in 1837, subject to a satisfied term, of
Nature, ec.

which he procured an assignment to a trustee
for himself. He afterwards executed three
mortgages, in each of which he covenanted
that the lands were free from dower. On the
occasion of the first mortgage, the deed of the
assignment of the term was delivered to the
solicitor for the mortgagee; but it did not
clearly appear that he retained the exclusive
possession of it. Held, that notwithstanding the
saving in the 8&9 Vic. c. 112, the term had
ceased by the operation of that Act, and the
mortgagees were not entitled to its protection
against A.’s wife’s right to dower.—Jn re Slee-
man, 41. C. R. 563. (P.C.)

1. A solicitor, failing to obtain from a
stranger a loan for his client, lent him, in the
stranger’s name, the money on mortgage; and
used that name to obtain from his client pri-
ority for the loan over two jointures payable
out of the estate, and concealed the fact, that
he himself was the lender. Held, that such a
transaction, coupled with the absence of in-
dependent advice by a solicitor to ,a client,
rendered the mortgage deeds voidable, so far
as they acquired priority over the jointures.—
Radeliff v. Orme, 5 I. Jur. N.S. 245. (C.A.)

2. In an affidavit, filed under the 13 & 14
Vic., c. 29, s. 6, for the purpose of converting
a judgment into 4 mortgage, the lands in-
tended to be comprised in the mortgage were
described as, “the lands of A., B., and C., si-
tuate in the baronies of D., and E.and county
of L.” Held, that the affidavit was insufficient;
the baronies not having been “ distinctly”
stated within the meaning of the statute.—Jn
re Morrow’s Estate, 141. C. R. 44. (C.A.)

 

II. Nature, Incipents, AND EFFECT OF A
MorTGaGE: HOW AFFECTED BY a WILL:
WHETHER IT DESCENDS AS LAND OR AS
Money.

3. When an estate p. a. vie is granted in
mortgage, and the mortgagor and mortgagee
jointly demise part thereof, reserving rent to
both lessors, their heirs and assigns; and the
lessee covenants to pay the rent accordingly ;
the mortgagor may, on the mortgagee’s death,
maintain an action of covenant for non-pay-
ment of the rent which accrues due during his
own life: the covenant being, quoad the mort-
gagor, a covenant in gross.

Semble—The rent which accrues due after
his death goes to the mortgagee’s heir-at-law,
who may sue on the covenant, though the
mortgagor survived the mortgagee; for the
Court will mould such a covenant so as to
make the rent go, on the death of the survi-
vor of the lessors, to the party entitled to the
reversion.— Thwaites v. M‘Donough, 21. E.R.
97. (E.E.)

4, A mortgagee of the legal estate may re-
cover the possession by ejectment, under the
1 Vic., c. 28, within twenty years after the last
payment of principal or interest. Why should
not the same provision apply to the mortga-
gee in Equity ?— Wrixonv. Vize, 51. E. R. 181;
2 Dr. & War. 192; 1 Con. & L. 298. (C.)

[MORTGAGE.]

 

Parties to. 623

5. It was admitted that the contract for the
mortgage was for the life estate only, and
relief beyond that was waived. There was a
judgment to secure the same sum. Held, that
the relief under the judgment, as well as the
mortgage, must be confined to the life estate.
—Richards v. Bayly, 61. E.R. 545; 1 Jon. & L.
120. (C.)

6. Advances made by a morgagee to pre-
serve the estate (e. g., head rent paid by him)
follows the nature of the mortgage security.
If the mortgagee is not entitled to foreclose
the mortgage until after the mortgagor’s death,
neither is he entitled, during the mortgagor’s
life, to sell the estate to pay those advances.
If necessary, a receiver will be appointed to
keep down the interest on the mortgage debt
and advances.—Burrowes v. Molloy, 8 I. E. R.
482;2 Jon. & L. 521. (C.)

 

III. Morreacor anp MortGacEE.
1. Their respective Rights, Duties, and
Liabilities.
2. Mortgagee in Possession.
a. His Rights, Duties, &c.
b. How controlled by Receiver, fc.
83. Accounts: Interest on Accounts: Allow-
. ances : when bills lie for them.
a. In general: when a bill lies.
d. Interest thereon. *
v. Allowances for Costs, Expenses,

§e.

IL. 1. Mortgagor and Mortgagee : their respective
Rights, Duties, and Liabilities.

7. The defendant, representing that his
estate was incumbered only to the amount of
£18,000, borrowed that sum; and agreed
to mortgage the estate as a security, and to
pay off the incumbrances out of ‘the loan.

The lender’s solicitor being very negligent,
the mortgage was executed, and much of the
money paid, before discovering that the in-
cumbrances exceeded £30,000. Held, not too
late to relieve the lender in Equity.—Brown
v. Stepney, Beat. Rep. 588. (C.)

8. Two questions have been raised on behalf
of the defendant. First, it was contended that
the arrear of interest (due on a mortgage exe-
cuted by the mortgagor, before he executed a
settlement making himself tenant for life)
does not bind the remainderman, because it
accrued during the life of the tenant for life:
that, however, cannot be sustained for a mo-
ment; it is contrary to the settled rules of the
Court. If a man mortgage his estate, he can-
not, by entering into a settlement afterwards,
and creating limited estates, give to the owners
of those estates rights, as against the mortga-
gee, which he had not himself. The mortgage
binds the whole inheritance, and the mortga-
gee is entitled to his principal and interest,
however the equity of redemption may be
parcelled out among different owners.—
Wrizon v. Vize, 41. E. R. 468; 2 Dr. & War.
102;1Con. & L. 298. (C.)

 

9. An equitable mortgagee of a tenant’s
624 Mortgagor.

interest is entitled to redeem after an eviction
for non-payment of rent.—Malone v. Geraghty,
2 Con. & L. 235; 5 J. E. R. 549; 3 Dr. & War.
239. (C.)—[Affd.: 1 H. L. Cas. 89.]

1. Form of order upon an application for
an infant mortgagee to convey under the 1 W.
4, c. 60, s. 6.— Jn re Hall, Dr. Rep. temp. Sug-
den, 3. (C.)

2. A bishop’s lease was assigned to a trus-
tee, in trust for the husband for life, then to
secure a jointure to the wife, and after her
decease, in trust for the husband absolutely ;
and the husband covenanted to procure the
lease to be renewed. The husband subse-
quently mortgaged his interest in the lease;
and having neglected to procure the lease to
be renewed, the trustee mortgaged the legal
estate under the lease, for the purpose of ob-
taining money wherewith to procure a renewal.
A renewal was afterwards executed to the
mortgagee of the trustee. Held, that although
the mortgagee of the husband was entitled to
redeem the mortgagee of the trustee, he was
not entitled to have the legal estate in the
Jease sold to pay his demands.—Tremble v.
Stimpson, 6 I. E. R. 98. (E.E.)

3. The proviso for redemption in a mort-
gage of a leasehold for years was—that upon
payment of the principal on a day mentioned,
and interest thereon, and the head rents in
the meantime, the deed should be void. By
deed of equal date, reciting that the agree-
ment between the parties was, that the princi-
pal should not be called in until after the
mortgagor’s (W.’s) death, but that by mistake
it was stated in the mortgage deed that it
might be called in after the lst May 1842,
ptf. covenanted that the principal should not
be called in until after W.’s decease. W. be-
came insolvent. The interest fell in arrear.
Ptf. paid an arrear of head rent to save the
lands from eviction by the head landlord.
Held, that ptf. was not entitled to foreclose
the mortgage during W.’s life; but was en-
titled to a receiver to keep down the interest
on the mortgage and his advances.— Burrowes
v. Molloy, 8 I. E. R. 482; 2 Jon. & L. 521. (C.)

4. A., having a rentcharge secured by a
term and judgment, filed a bill praying an ac-
count of prior and contemporaneous incum-
brances, and a sale. A decree to account
directed an account of all incumbrances, and
a final decree directed a sale of the inheri-
tance. After the grant of the rentcharge the
grantor executed two leases, and after them
two mortgages. A. filed a supplemental bill
impeaching the leases and charging that the
estate, if sold subject to the leases, would be
insufficient to pay the incumbrances. Held,
that the final decree being erroneous in direct-
ing a sale of the inheritance, the Court would
not in this suit correct the error; that A. was
not entitled to set aside the leases unless they
were prejudicial to his own security; and it
was referred to the Master to enquire whether
they were so.—Stamer vy. Nesbitt, 9 I. E. R. 96;
3 Jon. & L. 447. (C.)

[MORTGAGE.]

 

Mortgagee.

5. A lessee for years having leased for his
own term, reserving a profit rent, with a clause
of re-entry on non-payment of it, subsequently
mortgaged the lands. Held, that the rent re-
served was not a rentcharge, but in the nature
of rent upon a demise; and that the personal
representative of the mortgagor could recover
the lands by ejectment at common law, and
would be a trustee for the mortgagee, and,
therefore, that a receiver appointed over the
lands under the Mortgage Act, 11 & 12 G. 3,
c 10 Cdr.) was justified in enforcing the rent.—
Cremen v. Johnson, 9 I. E.R. 143. (R.)

6. When a person, entitled jure mariti to
chattels real, mortgages them, his wife has not
any equity toa settlement thereout as against
the mortgagee, seeking a foreclosure and sale.
—Hatchell v. Eggleso, 1 I. C. R. 215. (C.)

7. A mortgagor, in consideration of the
mortgagee abstaining from proceeding to fore-
closure, undertook to pay all his costs as
between solicitor and client. Having failed to
perform his promise to pay off the mortgage,
and being again threatened with proceedings,
he paid the mortgagee’s solicitor his costs. On
a petition under the Solicitors Act— Held,
that he was not entitled to a taxation of the
costs as between party and party, there not
having been any fraud or undue pressure, and
the mortgagees not being parties to the pro-
ceeding.

Quere—Whether the rule that, as against
the mortgagor, a mortgagee is entitled to all
costs between solicitor and client, prevails in
Ireland ?-Ex parte Fletcher, 21.C.R. 595. (R.)

8. When funds are realised bya sale directed
by this Court, the mortgagee is not entitled to
insist upon his common law right to receive a
six month’s notice.

Semble—The proceedings in this Court will
be deemed to constitute such notice.——Jn re
Lighton, 4 1. Jur. 35. (1E.C.)

9. By the mortgage of a ship under the Mer-
chant Shipping Act 1854,17 & 18 Vic., c. 104,
the legal right to the freight is transferred. A
mortgage of a ship was effected with power of
sale, which was not to be exercised until the
lithof June 1858 ; and the vesselwas chartered
on the 25th March 1858 by the mortgagor, who,
on the Ist April, made an equitable assignment
of the freight, and the ship was sold under the
power of sale. Held, that the purchaser was
entitled to the freight—Dobbyn v. Comerford,
101. C. R. 327. (R.)

10. A mortgagor, by a proviso in a mortgage
deed, agrees in a certain event to sell to B.,
the mortgagee, for a fixed sum, part of the
mortgaged premises. Held, that the proviso
was totally void as being an onerous engage-
ment entered into at the time of the mort-
gage.— In re Edwards’ Estate, 11 I. C. R.
367. (L.E.C.)

11. By a memorandum of agreement, dated
the 29th May 1850, F. agreed to execute a
mortgage payable with interest at £5 per cent.
in four years, to A. and H., to secure to them
Mortgagor.

a sum awarded under an arbitration; F. to
give reasonable proof that he had power to
grant the mortgage, and that the property to
be mortgaged was adequate security. Onad-
ministration in 1861 of F.’s real estate—Hedd,
that, as against his devisee and general
creditors, A. and H. were entitled to have a
sufficient portion of the produce of his real
estate applied in payment of the debt so
agreed to be secured by mortgage, though no
ee had been executed.—Jn re Devisee of
FitzGerald, 6 I. Jur. N. 8. 180. (L.E.C.)

1. When mortgaged lands form the subject
-of a petition for sale, and the day for repay-
ing the mortgage money has not arrived, the
mortgagee is entitled to have the lands sold
subject to his mortgage; but the Court will
not so sell them if the redemption day is near,
and the security is ample. .

The mortgagee cannot on this ground show
cause against the order for sale; the proper
time for his intervention is on the settlement
of the rental before the Examiner.—Jn re
Burke’s Estate, 71. Jur. N.S. 35. (.E.C.)

2. A mortgagee proved under the arrange-
ment clauses; ‘the case was turned into
bankruptcy. Such proof not deemed an
abandonment of his right as mortgagee; but
Held—an establishment of that right, the
mortgaged property having been valued, and
credit given for its worth.

This does not contravene the L. E. Court
ruling that a specific incumbrancer, proving
in an arrangement matter as a general creditor,
cannot afterwards claim in bankruptcy on
foot of his'specific charge.— Re Wilson, 7 I.
Jur. N. §. 828. (B.)

3. The payment, by the person liable to pay,
of money to the mortgagee, in respect of the
interest on the mortgage, continues the mort-
gage in all its integrity and force with respect
to all the estates properly comprised in the
mortgage, and which had not been aliened or
conveyed away by the mortgagee, or with his
assent. Therefore, if estates A., B., and C.
are included in one mortgage, and the owner
of A. pay the interest, the mortgagee is not
barred by 3 & + W. 4, c. 27, s. 40, and 7 W.4
& 1 Vic, v. 28, from his remedy against B.
and C. |

A receiver of the rents of w mortgaged
estate is the receiver of a mortgagor; and any
payment made by such receiver, by order of
the Court, is payment in law by the legal
agent of the person liable to pay within the
meaning of 3& 4 W. 4, c. 27, s. 40. :

The assignment by a mortgagor of out-
standing terms to a trustee for the purchaser
is not a possession of a prior incumbrancer
within the meaning of 3 & 4 W. 4, c. 27, s. 42,
so as to entitle the mortgagee to more than
six years’ arrears of interest.

Quere—whether the payment of interest on
a mortgage, by a mere stranger, would be a
payment within 3 & 4 W. 4, c. 27, ss. 40, 42.—

Chinnery v. Evans, 11 H.L. Cas. 115; 9 1. Jur.
N. 8. 281. CH.L.)—[Rev. decree below.]

4. By will, bequeathing legacies, and direct-

[MORTGAGE]

 

Mortgagee. 625

minor, was made residuary legatee; and was
appointed co-executor with E.

The testator died in 1883, and E. obtained
probate, saving the right of H.; took the
accounts of the personal estate; and in 1834
invested the ascertained residue in the pur-
chase of real estate, which was then conveyed
to E. in trust for H., by a deed showing on its
face that the lands were purchased with the
residuary personal estate. The deed reserved
to E. a lien on the lands if the residue did not
amount to the then estimated sum.

H. came of age in 1837; obtained a grant
of probate; and entered into possession of
the purchased Jands, and so continued until
1858, when he took a conveyance of the legal
estate from E., by a deed reciting the con-
veyance of 1834; and that the residue
amounted to more than the estimated sum.
H. dealt with the lands as absolute owner ;
and, as such, after 1858 mortgaged them by
deeds reciting that he was seized in fee, free
from incumbrances. The mortgagees had no
notice, save that appearing on the deeds, that
the lands were purchased with assets, or that
any legacies remained unpaid. It subsequently
appearing that H. had, after he came of age,
received and wasted the personal estate, the
legatees filed a cause petition to raise their
legacies out of the lands. in priority to the
mortgagees. Held, that the mortgagees were
not bound to enquire whether the legacies had
been paid, and the petition was dismissed as
against them.— Williams v. Massy, 15 1. C. R.
47. (C.)

III. 2. Mortgagee in Possession.
a. His Duties, Rights, &c.
b. How controlled by Receiver, &e.

 

Il. 2. a. Mortgagee in Possession: his Duties,
Rights, &e.

5. A mortagee of lands, held under leases
for lives renewable for ever, became bank-
rupt. Ejectment for non-payment of rent
having been brought by the head landlord,
and the premises redeemed by the assignees
within the time allowed by the statute to
mortgagees, the assignees entered into posses-
sion by their agent. An annuitant, claiming
under a settlement prior to the mortgage, filed
a bill. Held, that the assignees were charge-
able as mortgagees in possession; and were
bound to appropriate the rents which they had
received out of the lands, or which they might
without wilful default have received, in dis-
charging the redemption money, before their
own mortgage—Sloane v. Mahon, 1 Dr. &
Wal. 189. (C.)

6. An equitable mortgagee of a lease in
possession is liable to the payment of rent,
and performance of the covenants reserved
by and contained in the lease——Malone v.
Geraghty, 2 Con. & L. 240; 3 Dr. & War. 239;
5 1. E. R. 549. (C.)—[Affd.; 1 H. L. Cas. 89.]

7. If the assignee of a mortgage knowingly

ing payment of debts and legacies, H., a/ suffers a tenant for life of the equity of redemp-

79
626 Mortgagee in

tion, put in settlement since the mortgage,
to remain in possession without paying head
rents, and then advances him money to save
the estate from eviction: Semble—the advance
may, nevertheless, be enforced, as salvage,
against the inheritance.—Hill v. Brown, 6 I. E.
R. 403. (C.)

1. A mortgagee in possession, who appears
upon the pleadings to be paid off, and has
given security for the payment of the rents
into Court, will be restrained by injunction
from ejecting the tenants in occupation of the
lands, although the answer claims a sum to be
still due.

Discussion of the powers of a mortgagee in
possession.— Robinson v. Maguire, 9 I. E. R.
268. (R.)

2. Costs of a redemption suit against a
mortgagee in possession, given to him up to
answer, and against him for the rest of the
suit, when the sum due at the filing of the bill
was only £10, and the balance afterwards was
against him, and his conduct vexatious.—
Snagg v. Frith, 9 I. E. R. 285; 3 Jon. & L.
383. (C.)

3. It is the settled practice of this Court, in
taking accounts against mortgagees in posses-
sion, to make half-yearly rests, and not to
charge ayainst the mortgagee interest on pay-
ments exceeding the interest due to him re-
ceived at any intermediate periods, no matter
how frequently the payments are made.—
Graham v. Walker, 11 I. E. R. 415. (C.)

4. An insurance was effected on the life of
a surety for a mortgagor. The premiums
were paid by the mortgagee, who went into
possession of the mortgaged premises, but it
was not proved that the mortgagor had ever
been charged with them. In a redemption
suit— Held, that the mortgagor was not
entitled to credit for the amount received on
the policy.

[Humphrey v. Arabin, Ll. & G. temp. P1., is good

law.|—Bell vy. Ahearne, 12 I. E. R. 576. (C.)|

5. A mortgagee in possession brought an
action for rent, which proved abortive, having
been brought in the name of a party who had
no legal title to the rent, and against a party
who was not legally liable to it. A consent
was entered into, by which it was agreed that
the record should be withdrawn, that each
party should abide his own costs, and that the
plaintiff should not bring any other action for
the rent, Zed, in a suit to charge the mort-
gagee with wilful default, that he was not
chargeable with the rent which he had failed to
recover, as the consent did not release the
rent, and afforded no defence against the
recovery of rent at law or in equity ; but that,
as the action had failed by the neglect of the
mortgagee, he was not entitled to credit in
the account between him and the mortgagor
for the costs of the action — Burke v. O’ Connor,
41.C.R. 418. (R.)

6. In 1812, a mortgage was executed by A.
and B.to C. In 1813, two judgments, and in

[MORTGAGE]

 

. Possession.

1815 ‘a third judgment, were obtained by C.
against A. C. entered into possession of the
mortgaged lands in 1812, and continued in
possession until 1855. Ina redemption suit—
Held, that the judgments were not, so far as
related to the question in this case, to be con-
sidered as incorporated in the mortgage so as
to form one security ; and therefore that the
rents received, or which might have been
received, by C., were to be applied—first, in
payment of the interest and principal due on
the mortgage; secondly, in payment of the
interest and principal due on the two judg-
ments of 1813; thirdly, in payment of the
interest and principal due on the judgment’
of 1815.—Montgomery v. Donohoe, 5 I. C. BR.
495; 21. Jur.N.S.91. (R.)—[Affd.: 61.C.
R. 168. (C.)]

7, Before the mortgagee of a vessel obtained
possession, but after her arrival in port, the
owner’s agent, being also agent for the
charterer and consignees, arranged with them
to discharge the freight by selling to him part
of the cargo, instead of payment being made
as the charter-party provided. Upon this
arrangement, the cargo was landed, and
stored with wharfingers. eld, that the mort-
gagee’s lien for freight was gone,

When part of a vessel’s cargo is shipped on
the owner’s account, a mortgagee, who takes
possession under his mortgage, cannot claim
freight with respect to that part.—B. H.
Commrs. v. Lawther, 17 I. C. R. 54. (C.)

 

TIL. 2. b. How controlled by Receiver, §c.

 

ILI. 8. Accounts, and Interest thereon: Allow-
ances: when a bill for them lies.
a. Generally: when bill lies.
b. Interest thereon.
v. Allowance for Costs, Expenses, §c.

 

Ill. 3..a. In general: when bill for them lies.

8. A mortgagee, after his mortgage was
forfeited, executed several sub-mortgages, and
tiled a foreclosure bill; the sub-mortgagees
being made defts. Held, that he was entitled
to the sub-mortgagees’ costs against the es-
tate.—Smith v. Chichester, 4 I. E. R. 580; 2
Dr. & War. 393; 1 Con. & L. 486. (C.)

 

Ill. 3. b. Interest thereon.

9. In taking accounts against mortgagees
in possession, the settled practice of the Court
is, to make half-yearly rests; and not to charge
against the mortgagee interest on payments
exceeding the interest due to him received at
any intermediate periods, no matter how fre-
quently the payments were made.—Graham
v. Walker, 11 I. E.R. 415. (C.)

10. A., seized of a f.f. estate, confessed a
judgment to his landlord. After the princi-
pal and interest had reached the penalty, the
conuzee, in 1804, served notice on the tenants
to pay him the rents until the judgment
should be paid off, under threat of legal pro-
Equities between

ceedings. The tenants, with the assent of the
conyzor, paid the rents to the conuzee until
1809, when he assigned the judgment to the
defendant, one ‘of the tenants, who thence-

*forth received the rents until the filing of the
bill, and set two houses, to which spirit licenses
were annexed, for sums not mentioned in the
leases, and at rents less thanthe houses would
otherwise have brought; and also expended
money on improvements.

On a bill to redeem by the representatives
of the conuzor—Held, that though no elegit
was sued out, the defendant was entitled to
interest on the principal sum after it had
reached the penalty, not denying the plain-
tiff’s right, or setting up the Statute of Limi-
tations.

That the sums paid by the under-tenants to
the defendant for the houses were to be con-
sidered as fines, though the advantages of the
licenses were taken into account.

That the rents should be applied, first, to
the reduction of the interest, and then of the
principal of the judgment debt, before being
applied to discharge the sum expended on
improvements.—Cloughley v. Jameson, 13 I. E.
R. 471. (C.)

1. If deeds are deposited by way of equi-
table mortgage, to secure a simple contract
debt, the debt bears interest from the date of
the deposit, and by reason of it, though there
be no express contract that the demand
should bear interest.—Carey v. Doyne, 5 I. C.
R. 104. (R.)

2. A mortgagee presented to the L. E.
Court a petition, upon which he did not pro-
ceed, to sell a minor’s estate, which was sub-
ject to 4 mortgage debt whereon more than
six years’ interest was due. The Master, on
a reference to him, enquired what charges
affected the minor’s estates; and what amount
of principal and interest was due thereon?
Held, that the mortgagee was entitled to six
years’ interest from the date of filing his
charge under the order; not from the date
of filing his petition in the L. E. Court.—Jn
re Iitzmaurices, 15 J. C. R. 445. (R.)

 

Til. 8. c. Allowances for Costs and Expenses,
and otherwise.

3. A mortgagee, being requested by the
mortgagor to defend the premises in an action
against them, failed inthe action. Held, that
he was entitled, as against puisne incumbran-
cers and mortgagees, to be paid the costs of
the action in equal priority with his mortgage
debt.—Barryv. Stawell, 1 Dr. & Wal. 618. (C.)

4, Incumbrancers on a life estate, who were
necessary parties to a suit to sell the inheri-
tance to pay off charges prior to that life
estate, are only entitled to their costs against

. that life estate, and not against the ptfs. gene-
rally.—Ennis v. Brady, 1 Dr. & Wal. 720. (C.)

5. In a suit to foreclose a mortgage, after
the death uf the mortgagee, it appeared that
the mortgagee had bequeathed the mortgage
debt in different portions to several persons,

[MORTGAGE.]

 

Mortgagees.. 627

and, amongst those, £2000 had been be-
queathed to A. and B., and the survivor of
them, his executors, &e. The personal repre-
sentative of the survivor had been made w
defendant, and £2000 was reported due to
him. Held, that he was entitled to be paid
his costs according to the priority of his de-
mand, notwithstanding that the general rule
of the Court in foreclosure suits was to allow
only one set of costs against the inheritance.
Cane v. Brownrigg § others, 2 1.E.R.413. (E.E.)

6. Semble—A mortgagee is entitled to the
costs of a foreclosure suit, prosecuted by him
after a notice from the assignee of the mort-
gagor, a bankrupt, requiring him to proceed to
sell the mortgaged premises under the G. O.
in Bankruptcy of 1832. Held, that the mort-
gagee was entitled to the costs of the suit, the
notice from the assignee not offering to pay
him the costs incurred up to the time of ser-
vice on him.—Bernard v. Sadlier, 4 I. HE. RB.
61. (4.E.)

7. Costs of a redemption suit instituted by
a puisne incumbrancer against a mortgagee in
possession, given to the mortgagee up to the
filing of his answer, and against him after-
wards, he having been, before answer, over-
paid the sum due to him at the filing of the
bill; the balance being against him, and his
conduct having been: against conscience.—
Snagg v. Frith, 9 1. E. R. 285; 3 Jon. & L.
383. (C.)

8. In a suit for an account, foreclosure, and
sale, by a ptf. having two incumbrances on the
estate, he is not entitled to all his costs of suit
in priority with his elder incumbrance ; but
shall be decreed his costs of suit in priority
with that incumbrance, save so far as they are
occasioned by the puisne incumbrance; which
latter costs he shall be decreed to have in
priority with that puisne incumbrance.—Hand-
cock v. H.,11.C. R. 444. (C.)

9, The legal estate of a mortgage was vested
in two trustees, one of whom was out of the
jurisdiction. The Court, in order that the
mortgage might be reconveyed to the mort-
gagor, pursuant to a decree in a foreclosure
suit, made an order under the Trustee Act,
1850 (18 & 14 Vic., c. 60.), that the mortgage
should vest in the other trustee solely, and
directed the costs of the petition to be costs
in suit. — Corker v. Ryan, 3 I. C. R. 562; 6 I.
Jur. 238, (R.)

 

IV. CasEs oF TWO oR MORE MorteacEs.
1. Equities between them: when Receiver
will be appointed.
2. Of tacking Securities.

 

IV. 1. Cases of two or more Mortgages : Equities
‘ between them: when Receiver will be
appointed.
[As to claim to Rents, &e., received — See
InrermepiaTs Prorits.]
10. A mortgagee, being requested by the
mortgagor to defend an action against the
628 Equities between

lands, failed in the defence. Held, that as
against puisne incumbrancers and mortgagees
he was entitled to be paid the costs thereof
in equal priority with his mortgage debt.—
Barry v. Stawell, 1 Dr. & Wal. 618. (C.)

1. A puisne mortgagee filed a bill for a fore-
closure and sale against a prior mortgagee in
possession. By the report made pursuant
to the decree to account, it appeared doubt-
ful whether the mortgaged premises would,
upon a sale, produce sufficient to pay off the
prior mortgagee, and his costs of suit. Upon
the final hearing, the prior mortgagee, for the
first time, insisted upon being redeemed. Held,
that he had not waived his right by not having
made this claim by answer; that the time of
making the claim only affected the costs of
the suit; and that either the bill should be
dismissed without costs, or the plaintiff, if
he elected to take a decree for a sale, should
secure to the prior mortgagee the full amount
of his debt and costs of suit— Rotheram v.
Webb, 41. E.R. 53. (E.E.)

2. A mortgagee is entitled to possession of
the title deeds of the mortgaged estate. The
mortgagor cannot by depositing the deeds
with his solicitor, with a view to create a lien,
thereby defeat the mortgagee’s right.

A,, entitled to a leasehold, mortgaged it in
1814 to B. In 1824, A. obtained, in lieu of
the former interest, a lease for lives renewable
for ever. In 1835, A. deposited this lease
with his solicitor in England, to whom he was
then considerably indebted for costs. By the
decree pronounced at the original hearing
this new lease was declared to be a graft upon
the old one, and that the mortgagee was en-
tltled to the benefit of it. Held, that the
solicitor’s lien on the new lease could not
prevail against the mortgagee.—Smith v. Chi-
chester, 4 I. B. R. 580; 2 Dr. & War. 393;
1 Con. & L. 486. (C.)

8. A judgment was obtained against A. in
M. Term 1818, within 20 years before the
passing of the 9 G.4, c. 35. After the passing
of that Act, on the lst of April 1831, A.
mortgaged his estate. The judgment was not
revived or redocketed until TI. Term 1840.
Held, that, under the second sec. of that Act,
the judgment was void as against the mort-
gagee.

This construction does not affect the first
sec. of the Act, and the practice of redocket-
ing judgments immediately after their entry
is unnecessary and improper. — Hickson v.
Collis, 6 I. E. R. 524. (C.)—[Revd.: Hickson
v. Collis, 10 I.E. R. 447. (C.)]

4. A puisne mortgagee obtained a receiver
under the Mortgage Act. One year later, a
prior mortgagee extended the receiver, who
had not theretofore collected any rents. Held,
that this prior mortgagee was entitled to all
the rents due before, but not collected till
after the extension. — Boyd v. Burke, 8 I. E.
R. 660. (R.)

[MORTGAGE]

 

Mortgagees.

5. In a petition matter under the Mortgage
Act, the Court will not decide equities between
owners of different parts of the mortgaged
premises. Therefore, when a receiver had
received all the rent out of A.’s portion, who °
had a right to be indemnified out of B.’s por-
tion, who had not for some years been required
to pay anything to the receiver; the Court
refused to charge the receiver as for default,
at A.’s instance, the mortgagee having been
paid all his interest.—Lane v. Lynch, 9 I. E.
R. 501. (C.)

6. When the petitioner is a prior mortgagee,
and there is no probability that the property
will ever pay him; and consequently puisne
creditors have not any interest in it; the
Court will convey it to him; treating him as
mortgagee in possession, and giving him
merely a parliamentary title. —In re Joyce’s
Estate, 41. Jur. 16. (1.E.C.)

7. A., entitled to an equity of redemption,
agreed with F. for an advance of money, for
which he consented to grant an annuity out
of the mortgaged premises. The sum ad-
vanced was exactly equal to that due upon
the mortgage, and was paid to the mortgagee,
who assigned the premises to B., the brother
of A., without declaring any trust. On the
following day A.and B. joined in granting an
annuity to F. out of the mortgaged as well as
other lands. This deed vested a term of 200
years in a trustee to secure the annuity, and
there was a judgment collateral entered up at
the suit of F. against A. and B. Held, that
there was no extinguishment of the mortgage
debt; and that F. was entitled as against a
mortgage puisne to the paid off mortgage, but
prior to the deed of annuity, to the benefit of
the paid off security, to the extent of the
money due to himself. — Walcott v. Condon, 6
I. Jur. 15. (C.)

8. A., equitable mortgagee of premises
granted in 1843, obtained, in 1846, a judg-
ment for the amount of his debt. In May
1847, A. appointed a receiver under the judg-
ment Acts, over, not only the mortgaged
premises, but also over other premises be-
longing to the debtor.

B. had a mortgage of 1844, with judgment
collateral, over these last premises and over
others not covered by A.’s mortgage. In
March 1847, B. filed a foreclosure bill praying
a sale of the premises mortgaged to him, anda
receiver. He made A., as a judgment creditor,
a notice party. In 1848, A.’s receiver was
extended to B.’s cause; and appointed over
the further premises in B.’s mortgage. Under
the Court’s erders, the receiver paid B. a
considerable amount of the rents received
generally. Held, that B. should have been
paid only out of the rents of the lands mort-
gaged to himself; and that the extension
could not affect the rents received out of
other premises.

It was referred to the Master to allocate
the funds, and report the parties’ rights, with-
out regarding the previous orders of the Court
touching payment out of the rents received.
Tacking.

Each party was declared entitled to the
costsof the motion.—Bristow v. Millar, 6 I.
Jur. 285. (R.}

1. A judgment registered as a mortgage
under the 13 & 14 Vic., e. 29, s. 6, takes prece-
dence of prior unregistered instruments of
which the conuzee has no notice.— Corbett v. De
Cantillon, 5 I. OC. R. 126 ; 11. Jur. N.S. 297. (C.)

2. Declare the judgment obtained by peti-
tioner as of M. Term 1853, and registered by
him as mortgagee on the 13th December 1853,
well charged on the lands in the petition men-
tioned.

Declare the post-nuptial settlement of the
13th November 1850, in petition mentioned,
void as against the registered mortgage of the
13th December 1853, and accordingly, let the
post-nuptial settlement be postponed to the
said mortgage as vested in petitioner.— Mont-
gomery v. M'Evoy, 5 1. C. R. 128, note. (C.)

3. A., mortgages Blackacre, to B., and gives
him as a collateral security a judgment which
attaches on both Blackacre and Whiteacre.
Subsequently B. assigns his debt and securi-
ties to C.; and A. at the same time mortgages
Blackacre to C. for a further sum, with a cove-
nant against all incumbrances except the
mortgage toB. Held, that C., as against a puisne
incumbrancer, is entitled to be paid the debt
assigned to him by B. out of Whiteacre first,
so as to leave Blackacre unimpaired to meet
the second mortgage made to C. himself.—Jn re
Roddy’s Estate, 111.C. R. 369. (L.E.C.)

 

IV. 2. Tacking Securities.

4. It is very doubtful whether a mortgagee
can, even since the passing 3 & 4 W. 4, c. 104,
tack a simple contract debt to his mortgage.
Uppington v. Bullen, 1 Con. & L. 291; 2 Dr. &
War. 184. (C.)

5. A person who has obtained the legal
estate under circumstances of fraud, cannot
protect himself by it.

An annuitant, in possession of rents and pro-

fits to pay himself the arrears of an annuity,

cannot tack judgments to his demand for these
arrears.— Henry v. Douglas, 1 I. Jur. N.S. 146.
(C.)

6. E. by ante-nuptial articles under seal,
covenanted to purchase lands, and to charge
them with « jointure for his wife. He also
professed to charge with the jointure all pro-
perty of which he should during the coverture
be seized. Those articles were registered. He
afterwards purchased the lands of V., but did
not execute any conveyance for the purpose of
charging them with the jointure. He mort-
gaged them toI., who had no notice of the
articles, by deposit of title deeds, no convey-
ance having been executed tol. Held, that
the jointure was to be paid in priority to the
equitable mortgage.

Quere—Whether Gubbins v. Gubbins (1 Dr.
& Wal. 161, n.) ever was decided, or would

[MORTGAGE]

 

Redemption. 629

now be treated as a binding authority ?—Creed
v. Carey, 71. E. C. 295; 81. Jur. N.S. 128.
(C.A.)

 

V. Repemption or Mortcace.

1. Equity of Redemption: its Incidents, §c.

2. Redemption under Statutes.

8. Who is entitled to Redeem, or be Re-
deemed.

4. Terms of Redemption: Extension of
Security.

5. Reconveyance.

6. How Barred.

7. Practice on Bills to Redeem: Enlarging
Time for Redemption.

 

V. 1. Equity of Redemption : its Incidents, &c.

7. V. mortgaged X. by a deed containing a
borrowing clause. On attaining a further loan
he mortgaged Y. to secure the entire sum bor-
rowed. The mortgagee’s representatives con-
veyed X. by a deed which recognised the first
mortgage as then subsisting. Held, under the
old law, a sufficient acknowledgment to keep
alive the right to redeem Y.

The mortgagee, J., while in possession, made
a lease: the mortgage had been duly registered.
The lessee set up a title as a purchaser with-
out notice, and relied on there being no ac-
knowledgment to bind him. Held, that the re-
gistration gave priority to V.’s equitable title,
which rendered notice immaterial.

That the acknowledgment by J. alone suf-
ficed against his lessee.—Ball v. Lord Rivers-
dale, Beat. Rep. 550. (C.)

 

V. 2. Redemption under Statutes.

8. A lessor having been evicted for non-
payment of rent under the Ejectment Statutes
in Ireland, an equitable mortgagee of his in-
terest filed against the landlord a redemption
bill. Held, that under the 11 Anne, c. 2, plain-
tiff was entitled to redeem: that trustees of a
settlement, to whom the lease had been as-
signed, were not necessary parties.— Geraghty
y. Malone, 1 H. L. Cas. 81. — [Affg. 5 I. E. R.
549; 3 Dr. & War. 239. (C.)]

 

V. 3. Who is entitled to Redeem or be Redeemed.

9. The owner of premises, subject to a
charge of £1000, granted to the plaintiff an
annuity charged thereon. They were after-
wards sold to B., who had notice of the annuity.
The conveyance purported to be made in con-
sideration of £6.

By another deed, the charge, and the term
securing it, were assigned to a trustee for B.,
who, in his answer, admitted that he paid
£1006 for the premises, and that £1000, part
of the purchase-money, was paid to the owner
of the charge. B. went into possession.—
Held, that he was entitled to hold the charge
for the amount of principal and interest due
on it; and that the plaintiff should only be
at liberty to redeem him, he accounting as
mortgagee in possession.— Unthank v. Gabbett,
Beat. Rep. 453. (C.)
630 Who may

1. The owner of an equity of redemption
conveyed it, by a conveyance, absolute on its
face, to the mortgagee. A memorandum,
executed contemporaneously, declared—that
if the mortgagor repaid the consideration
within three years, the mortgagee would re-
convey. The purchase money was the amount
at which the lands were valued. Possession
followed the execution of the deed. Evidence
showed that the transaction was a purchase,
not a mortgage. Held, that it was a condi-
tional purchase, and not tedeemable.—Neal
v. Morris, Beat. Rep. 597. (C.)

2. A mortgage deed contained a stipulation
that the mortgagee should not be at liberty
to foreclose, nor the mortgagor to redeem,
within five years. The latter, to secure a
sum, part of which was for costs incurred and
to be incurred, executed a second mortgage
to the solicitor who had acted for him in
arranging the terms of the first, which became
forfeited within the five years. Held, that
the second mortgagee was not at liberty to
redeem the first mortgage during the five
years.

Semble—He could not have a sale of the
equity of redemption.

Quere—Touching the validity of the second

‘ mortgage, and the right to charge interest on
the costs from the date of the deed.—Lawless
v. Mansfield, 4 I. BE. R.113; 1 Dr. & War. 557.
(C.)—[ Questioned in Blagrave vy. Routh, 2 Kaye
& J., 509; 8 De Gex. M. & G. 620.]

3. Redemption money advanced, with the
consent of the inheritor, by the assignee of a
disputed judgment is a lien upon the lands,
and a good equitable incumbrance.

The Court will interfere by a receiver, to
preserve a property where there is danger of
eviction, even although the plaintiff’s demand
is disputed, if he has a prima facie right.—
Fetherstone v. Jitchell, 9 I. EB. R. 480. (R.)—
[Sees. c., 111. E.R. 35. (C.)]

4. The Court refused to stay a mortgagee’s
suit after decree in another creditor’s suit, in
which the plaintiff was a puisne judgment
creditor, who filed his bill within a year of
the entry of his judgment, and whose right to
a sale of the estate depended on setting aside
a settlement puisne to the mortgage, under
which no tenant in tail was in esse.

If a prior mortgagee does not insist on being
redeemed at the first hearing, he cannot do
so at the final hearing.—Foster v. Ker, 12 I.
E.R. 51. (C.)

5. When an agent (having knowledge that
a judgment debt is due to his principal, and
affects premises of which the principal is
landlord, and against which he has a judgment
in ejectment for non-payment of rent) deals
with a mortgagee of the tenant’s interest in
the same premises, and permits him to enter
into an engagement for their assignment to a
third party, who advances money to redeem
them from eviction under the judgment in
ejectment; but does not, until after the pre-
mises have been redeemed, inform the mort-
gagee of the existence of the judgment debt—

[MORTGAGE.]

 

Redeem.

Feld, that the money advanced to redeem the
premises from eviction was a charge thereon
prior to the judgment.— Abercorn v. Bristowe,
11. Jur. N. 8.57. (C.)

6. E., seized of lands subject to mortgages,
devised them to T., in whom the mortgages
became vested. E.’s heir instituted a suit
praying ordinary redemption relief, and an
issue devisavit vel non. Held, that the Court
had jurisdiction to grant that issue.-—Egmont
v. Darell, 14 I. C. R. 564. (C.)

 

V. 4. Terms of Redemption; Extension of
Security.

7. A mortgage deed contained astipulation
that the mortgagee should not be at liberty
to foreclose, nor the mortgagor to redeem,
within five years. The mortgagor executed a
second mortgage to the solicitor who acted
for him in arranging the terms of the first,
which became forfeited within the five years.
Held, that the second mortgagee was not at
liberty to redeem the first during the five
years; and, Semb/e, he could not have a sale
of the equity of redemption.—Lawless v. Muns-
field, 4 I. E. R. 113; 1 Dr. & War. 556. (C.)—
[Questioned in Blagrave v. Routh, 2 Kaye & J.,
509; 8 De Gex. M. & G. 620.]

8. If the assignee of a mortgage knowingly
suffers u tenant for life of the equity of re-
demption, put in settlement since the mort-
gage, to remain in possession without paying
head rents, and then advances him money t
save the estate from eviction,—Semble, the
sum advanced may be enforced notwithstand-
ing, as salvage, against the inheritance— Hill
yv. Brown, 6 I. E. R. 403. (C.)

9. A. mortgages to B., and confesses a
judgment to C. Afterwards B., without no-
tice of the judgment, makes further advances
to A., who executes to him a further mort-
gage of the same lands for the two debts.
Held, that C. could not redeem the first with-
out also redeeming the second.— Tennison v.
Sweeny, 71. E. R. 511; 1 Jon. & L. 710. (C.)

10. The decree in a suit by B., a puisne mort-
gagee, directed that he should redeem A., a
prior mortgagee, who had the title deeds,
within six months, or in default that the bill
should be dismissed, with costs, against A. ;
that the defendants who ought to do so should
pay B. the sum found due to her, and the sum
directed to be paid by her to A., provided she
should have paid same; and, in default, a sale
to pay B. and the other reported creditors, in
their priority, and the sum which she should
pay to A. A. was not paid off; and after six
months had elapsed, and the suit stood dis-
missed with costs as against him, he presented
a petition for a sale under the I. E. Act.
Held, that, as A. had possession of the title
deeds, and as the Court had not jurisdiction
to order him to lodge them, no sale could be
had under the decree, and therefore there was
no pending suit within the 67th sec. of the
Act.

Held also, that the Court had authority to
stay B.’s suit.
Redemption,

Form of order on petition of a first incum-
brancer under the Act.

Form of decree and practice in Ireland in
a suit by a puisne creditor for redemption and
sale.—Lx parte Hutton, 11 I. E. R. 160. (R.)

1. A mortgage deed contained an express
covenant not to pay off the debt without giving
the mortgagee six months’ notice. No such
notice having been given, the mortgagee
claimed six months’ interest from the date of
the undertaking of the owner to pay him ont
of Court. Held, that the mortgagee was en-
titled to the interest, if paid off at once; but
that the principal might be retained until six
months had expired.— Keily’s Estate, 6 1. Jur.
N.S. 184. (L.E.C.)

2. A., having obtained from B. an advance
of money, conveyed lands, by way of mortgage,
to secure it. C., as surety for A., conveyed a
charge of £5000, further to secure the debt.
The proviso for redemption provided, that, if
A,, or C., or either of them, should, on a day
therein named, repay B. the sum borrowed,
B. would reconvey the lands and charges to
the uses on which they had been held before
the execution of the deed. The period of
redemption having elapsed, the debt was paid
out of C.’s charges. Held, that notwithstand-
ing the form of the proviso, C. was entitled
to the benefit of B.’s securities against A.’s
lands.—_M:Neale v. Reed, 71. C. RB. 251. (C.)

@

3. A mortgagee in possession must pay the
costs of a redemption suit against him if it
is found that, at the time of its institution, a
balance was due to the mortgagor.

The mortgagee in possession of a several
fishery refused to surrender the premises to
the mortgagor until he gave a promissory
note and a guarantee for the amount claimed
by the mortgagee to be due. In a suit by the
mortgagor against the mortgagee for an ac-
count, and for damages caused by negligent
fishing of the weir, a balance was found to
have been due to the mortgagor when posses-
sion was given up; but the claim for damages
was disallowed. eld, that the mortgagee
should pay the costs of the suit, but was en-
titled to the costs of those parts thereof in
which he had succeeded.—O’ Neill v. Innes, 15
IC. RB. 527. (C.)

 

V. 5. Reconveyance.

4. The legal estate in mortgaged lands
being vested in two trustees, one of whom
was out of the jurisdiction, and an order for
reconveyance having been made in a fore-
closure suit, the Court made an order to vest
the lands in the trustee within the jurisdic-
tion, and gave the mortgagee. who had pre-
sented the petition, his costs (Trustee Act,
1850, 13 & 14 Vic., c. 60). — Corker v. Ryan, 3
IC. R. 562; 61. Jur. 238. (R.)

 

V. 6. How Barred.
5. A mortgagee, who had not been in re-
ceipt of the rent of the mortgaged premises
for upwards of 20 years, nor received an

[MORTGAGE]

 

How barred. 631

acknowledgment, such as the 3 & 4 W. 4.¢
27, requires, nor known his rights until in-
formed thereof by a puisne creditor, was
brought before the Court by that creditor, by
an amendment made in 1837 to a supplemen-
tal bill filed in 1833, to complete title to a
purchaser, so as to have distributed among
the creditors of the estate funds, which had
been impounded to indemnify the purchaser
against an outstanding, apparently unsatisfied,
charge, of which the mortgage formed a
moiety. eld, that the mortgagee’s claim was
not barred by the 3 & 4 W. 4, c. 27—Murphy
y. Sterne, 1 Dr. & Wal. 246. (C.)

6. In 1790, N., as assignee of incumbrances,
entered into possession of lands, and as pur-
chaser from A., B., C., and D., tenants in
common for life, of one-fourtheach. A. died
in 1819; B. in 1836, The next remainder-
men (tenants in tail) of their shares filed
against N.’s devisees a bill to redeem the pre-
mises. Held, that ptfs. were within the terms
of, and bound by the 3&4 W. 4, c. 27, s. 28,
the provisions whereof are wholly independent
of those of sec. 15, which relates to the title
to the lands so affected by the provisions of
the preceding sections: the former relates
exclusively to mortgagees.— Brown v. Bishop
of Cork, 1 Dr. & Wal. 700. (C.)

7. In a puisne mortgagee’s redemption suit,
a prior mortgagee in possession of part of the
lands, and who, under a decree to account,
had been charged with a high occupation rent,
was permitted to give up the lands to the
receiver upon the expiration of the first
current year, reckoning from the day on which
he went into possession.— Gregg v. Arrett, 8. &
Se. 674. (C.)

 

V. 7. Practice on Bills to Redeem: enlarging
time for Redemption.

[See also Practice. ]

8. Ina redemption suit by a puisne mortgagee,
a prior mortgagee in possession of part of the
mortgaged lands, having under ua decree to
account been charged with a high occupation
rent, was permitted to surrender the lands to
the receiver upou the expiration of the current
year, commencing with the day upon which
first he went into possession.— Gregg v. Arrett,
S.& Sc. 674. (R.)

9. In aredemption suit, ptf., as a general
rule, must pay the costs of all necessary
parties. Therefore, when a question arose
between two defts. respecting which of them
was entitled to the sum brought into Court by
the ptf., and the cause stood over from day
to day to have that question argued—Held,
that ptf. must pay, as part of the costs in
the cause, refreshing fees to deft.’s counsel.

A creditor, though paid off in the course of
the suit, was also held entitled Wynne vy.
Brady, 5 1. BE. R. 239. (E.E.)

10. A lessor, having been evicted under the
Ejectment Statutes for non-payment of rent,
an equitable mortgagee of his interest filed a
bill to redeem against the landlord.. Held,
632

Foreclosure,

that trustees of 4 settlement, to whom the
lease had been assigned, were not necessary
parties to the suit—Geraghty v. Malone,
5 1. E. R. 549; 8 Dr. & War. 239. (C.)—
[Affd.: 1 H. L. Cas. 81.]

1. The Court will not postpone the hearing
of a mortgage cause, to allow the defendant
time to get money to pay off the plaintiff,

though it will enlarge the time for redemption’

after decree.—Anonymous, 9 I. E. R. 877. (C.)

2. The Court refused to stay a mortgagee’s
suit, after decree in another creditor’s suit,
in which the plaintiff was a puisne judgment
creditor, who filed his bill within a year of the
entry of his judgment, and whose right to a
sale of the estate depended on setting aside a
settlement puisne to the mortgage under which
no tenant in tail was in esse.

If a prior mortgagee does not insist on
being redeemed at the first hearing, he
cannot do so at the final hearing.—Foster v.
Ker, 121.E.R.51. (C.)

 

VI. ForEcLosure.

1. Nature and Effect of.

2. At whose sutt.

3. When decreed, and against whom.
4. Foreclosure under Statute.

5. Opening a Foreclosure.

6. Practice on Bills to Foreclose.

 

VI. 1. Foreclosure: Nature and Effect of.

38. Semble—That a foreclosure suit is a suit for
the recovery of money charged upon land, and,
as such, is within 3 & 4 W.4,c. 27, s. 40.—
Henry v. Smith, 2 Dr. & War. 387; 1 Con. &
L, 506; 41. E. R. 502. (C.)

4, A foreclosure suit is a suit for the
recovery of land, and not money; and, as
such, is within the 24th sec. of 3& 4 W. 4, c.
27.—Wrizon v. Vize, 2 Con. & L.138; 3 Dr. &
War, 104; 5]. E. R. 173. (C.)

5. A mortgagee’s suit for foreclosure and
sale, instituted in 1811, during a debtor’s life,
does not prevent the Statute of Limitations
running against « judgment creditor of his,
because the judgment creditor could not have
instituted such a suit.—The doctrine of Stern-
dale v. Hankinson, 1 Sim. 393, and similar
cases, observed on. Bennett v. Bernard, 12
I. E. R. 229. (C.)

6. The proviso at the end of the 17 & 18
Vic., c. 113, that it shall not affect the rights
of any person claiming under any deed or
document made before the Ist of January
1855, does not save a right to the heir to be
exonerated from a mortgage debt, out of the
personal estate bequeathed to a legatee by a
will made before that date.

In 1884, A. devised to B. all his right, title,
and interest to real estate; and also devised
and bequeathed to B. all his personal property,
together with all other real, freehold, and
chattel property, of every nature and kind
whatsoever, of which he might be seized or

[MORTGAGE]

 

Its Nature, Sc.

possessed at the time of his death. He
appointed C. his executor. After making his
will, A. granted mortgages, to secure which he
executed a disentailing deed, which was held
to be a revocation of the will, as to the real
estate. A. died in 1856.

Quere—W hether the bequest of the personal
estate was specific, so as to exonerate it from
the mortgage debt?

Held, that the 17 & 18 Vic., c. 113, applied,
and that the heir was not entitled as against
the legatee of the personal estate, to be exone-
rated from the mortgage.—Power v. P.,
81. C. R. 340. (R.)

 

VI. 2. At whose suit.

7. W. mortgaged leasehold premises to the
plaintiff. The deed contained a clause of
redemption on payment of the principal and
interest on the lst May 1842. By deed of the
same date, reciting an agreement on the
treaty for the mortgage, that the principal
should not be called in until after the death
of W., and that by mistake it was stated in
the mortgage deed that it might be called in
after the lst May 1842, the plaintiff cove-
nanted that the principal should not be called
in until after the decease of W. W. became
insolvent. The interest of the mortgage fell
in arrear. The plaintiff paid an arrear of
head rent, in order to save the premises from
eviction by the head landlord. Held, that the
plaintiff was not entited to foreclose the
mortgage during the life of W., but was
entitled to a receiver to keep down the inter-
est on the mortgage, and his advances.

The premises were subject to an annuity prior
to the plaintiff’s mortgage; and the annuitant
was made a party to the suit in respect of the
salvage claim.— Held, that he was not a proper
party to the suit, and the bill was dismissed
against him with costs Burrowes v. Molloy,
8 I.E. R. 482; 2 Jon.& L. 521. (C.)

 

VI. 2. When decreed, and against whom.

8. The bill stated a mortgage made by deft.
in consideration of £219; and that the mort-
gage contained a proviso in favour of the deft.,
his heirs, &c., upon his or their at any time
paying off the £219, with interest ; and prayed
an account; that deft. might be foreclosed of
all equity of redemption; a sale; and that deft.
might be ordered to bring in the title deeds.
On demurrer—Held, that it appeared by the
bill that this was in the nature of a Welsh
mortgage; and that the demurrer should be al-
lowed, as no case was shown entitling ptfs. to
have a sale independently of a foreclosure,
and it did not appear that the title deeds were
sought otherwise than for the purposes of the
foreclosure and sale, to neither of which were
ptfs. entitled by their bill—O’ Connell vy. Cum-
mins, 21. E.R. 251. (R.)

9. Although by the mortgage deed no day
was fixed for repayment, yet, there being a
covenant by the borrower to repay when re-
quired to do so, and a covenant by the lender
to reconvey upon being repaid— Held, that a
foreclosure bill was maintainable,
Foreclosure.

A Court of Equity will presume that an
instrument of this nature, intended as a se-
curity for money advanced, is an ordinary
mortgage, and the lender entitled to the mort-
gagor’s usual remedies, unless its terms exclude
such a construction.—Balfe v. Lord, 4 I. E. R.
648; 2 Dr. & War. 480; 1 Con. & L. 519. (C.)

 

VI. 4. Foreclosure under Statute.

 

VI. 5. Opening a Foreclosure.

 

VI. 6. Practice on Bills to Foreclose.

1, In a foreclosure suit, the provisional
assignee having been made a defendant, in
consequence of the insolvency of one of the
mortgagors, was declared entitled to his costs
against the plaintiff, the latter to have them
over against the fund.—Sproule v. Oats, 2 I.
E. R. 323. (H.E.)

2. In the Court of Eq. Ex., a puisne mort-
gagee need not, on a bill for foreclosure and
sale, offer to redeem a prior mortgage. The
puisne mortgagee may insist on the sale, and
the prior mortgagee cannot resist it, but the
prior mortgagee must be paid his debt and
costs of suit first. If, however, there be a
judgment, or other incumbrance, prior to the
first mortgage, such prior incumbrance must
be paid out of the purchase-money, and that
in priority even to the prior mortgagee; and
the rule holds good, even though such judg-
ment or other prior incumbrance happens to
be vested in the puisne mortgagee who files
the bill for a purchase and sale. In the Court
of Ch. the puisne mortgagee must, by his
bill, offer to redeem the mortgage.—Perrott v.
O'Halloran, 21. E.R. 428. (H.E.)

3. Quere—In a decree for foreclosure and
sale, where a minor defendant is entitled to the
equity of redemption, ought the decree to give
the minor a day to show cause against it ?—
Jones v. Ham, 3 I. BE. R. 65. (E.E.)—[See
note, p. 66, and Flood v. Hutton, ibid. 340.]

4. Bill to foreclose a mortgage vested in
trustees for the separate use of a feme covert.
The husband, who was made defendant, is
entitled to his costs out of the fund.—Dillon
v. M‘Carthy, 31. E.R. 192. (E.E.)

5. In this case, the security was given by
recognizance, conditioned for the payment of
any difference between the produce of the sale
and of the sum decreed due on foot of the
prior mortgage for principal, interest, and
costs. ‘

The objection that the premises are of in-
sufficient value, and that the plaintiff ought to
redeem him, ought to be made by the answer
of the prior mortgagee, and if so made, and
the plaintiff will not afterwards secure to the
prior mortgagee the debt and costs, the bill
will be dismissed with costs as against him.—
Rotheram vy. Webb, 41. E.R. 52. (E.E.)

[MORTGAGE.]

 

Bills. 633

6. In a bill for foreclosure and sale of mort-
gaged lands all the mortgagor’s judgment
creditors are necessary parties, whether their
judgments are prior or puisne to ptf.’s demand,
and whether they are a lien upon legal or
equitable estates. This doctrine rests upon
a perfectly valid feundation, whether referred
to the general principle of Courts of Equity,
or to the effect of the 3 & 4 Vic., c. 105, s. 22.
—Rolleston v. Morton, 4 I. E. R. 149; 1 Dr. &
War. 171; 1 Con. & L. 252. (C.)

7. An objection by a prior mortgagee, that
the plaintiff, « puisne mortgagee, has not
offered, by his bill, to redeem him, if taken
for the first time at the hearing, cannot be
maintained.—Balfe v. Lord, 2 Dr. & War. 480;
1 Con. & L. 519; 41. E. R. 648. (C.)

8. A decree for foreclosure and sale against
the mortgagor, and against an infant entitled
under a settlement of the equity of redemp-
tion to the first equitable estate tail in re-
mainder, must give the infant a day to show
cause.— Clibborn v. Forstall, 51. H. R.531. (R.)

9. In a foreclosure suit there was inserted
in the decree a direction, that puisne mortga-
gees, who were made parties, should be at li-
berty to file charges, and prove inrespect of their
puisne mortgages, so as they might come upon
the residue after payment of the plaintiff.—
Davis v. Rowan, 3 Dr. & War. 478; 2 Con. &
L. 154.—[See the 102nd G. O. in Ch., Gam.
Qs. in Ch., p. 65.]

10. A.faged thirty, entitled to a remainder
for his own life, after the decease of B., aged
seventy, and to a remainder in tail, contingent
on his having no male issue, in 1837, in con-
sideration of £4000, granted all his estate and
interest, with a clause of redemption, on pay-
ment of £9500. All parties were under the
impression that A.’s estate was for his life
only. B. died in 1841. <A. afterwards, by a
deed, under the statute, converted his estate
tailinto a fee. The mortgage was in form
for all A.’s interest, and the mortgagee filed
the bill, praying for relief against all his in-
terest. Held, that in this suit A. could not
rely on the nature of the transaction as a
defence, without filing a cross bill.

Semble—The transaction would be impeach-
able within the rules relating to post obit
securities, although A.’s remainder for life was
contingent.—Richards v. Bayly, 6 I. E. R. 545 ;
1 Jon. & L. 120. (C.)

11. A release of the equity of redemption
was set aside at the instance of the mortgagee,
who had been induced to accept it, and in
consideration thereof to covenant to pay the
mortgagor a perpetual annuity, and to give
him a perpetual right of redemption, by mis-
representations made by the mortgagor and his
solicitor (who was also the mortgagee’s soli-
citor) as to the mortgagor's title, the value of
the premises, and the nature of the contract.

The costs of a suit to set aside a deed for
fraud will not be given against a solicitor, who
was a party to the fraud, and is a party to the

80
634 Foreclosure.

suit in respect of other liabilities, unless they
are prayed against him by the bill.

The purchaser of a perpetual rentcharge
had notice of a deed making his vendor tenant
for life of the lands on which the rent was

charged, and of a subsequent deed whereby:

the vendor, suggesting that he was seized in
fee of the lands, purported to convey them in
fee in consideration of the perpetual rent-
charge. Held, that he was bound to enquire
into, and had notice of the circumstances under
which the latter deed was executed.

A person, entitled to real estate, by volun-
tary conveyance settled it in strict settlement.
After his decease, his heir-at-law, tenant for
life under the settlement, upon his marriage,
conveyed, by indenture reciting the voluntary
settlement, all his interest in the lands, upon
trust to secure a provision for his wife.

Quere—Can he afterwards insist that the
voluntary settlement was void, because the
settlor was mentally imbecile when he exe-
cuted it?

When it appears upon the whole mortgage
deed that, although the redemption is ex-
pressed to be upon payment of the principal
money and interest at the end of several years,
yet the parties’ agreement is, that the interest
shall be paid half yearly in the meantime, the
mortgagee may, upon non-payment of the in-
terest, foreclose within the period.

A defendant cannot read, as against the
plaintiff, depositions taken on behalf of a
co-defendant.—Roddy v. Williams, 3 Jon. & L.

1. (C.)

1. In a foreclosure suit the Court will not
refrain from pronouncing the usual decree for
a sale, at deft.’s motion, suggesting the ap-
pointment of a receiver, unless upon consent ;
but will, after decree, enlarge the time for
redemption, if a proper case is made.—Anon.,
101. E.R. 174. (E.E.)

2. A., tenant for life, remainder to his son
B., joined B. inexecuting a post-nuptial settle-
ment by which A. and B. assigned the lands
in trust for A. for life, subject to an annuity
for B.; and after A.’s death in trust for B.,
subject to a jointure (charged by a pre-exist-
ing deed), and charged with a sum for por-
tions for A.’s younger children. A. and B.
afterwards joined in a mortgage which did not
notice this settlement. It contained cove-
nants for title, but not against incumbrances.
Held, that the settlement, as regarded the
provision for the younger children, was not
voluntary or void as against the mortgagee,
nor revocable by A. and B.; and, even if re-
vocable, was not revoked by the mortgage.

The doctrine that creditors, or parties proy-
ing their demands under a decree, are entitled
to consider the suit as theirs from the com-
mencement, so as to prevent the effect of the
Statute of Limitations, is not confined to suits
purporting to be on behalf of creditors gene-
rally ; but extends to an ordinary mortgagee’s
suit for foreclosure and sale, in favour of prior
creditors proving charges on the mortgaged
ee v. Bernard, 10 I. E. RB. 584.
(C.)

[MORTGAGE.]

 

Sale.

83. When a petition is presented under the
Mortgage Act, the mere impeachment of the
mortgage by affidavit, without showing pro-
bable grounds for such impeachment, is not
sufficient to prevent the Court from making
the usual reference to appoint a receiver.

Semble—If a bill should be filed to impeach
the mortgage, the Court would not distribute
the fund received by the receiver until such
suit was disposed of.

The case of Cosgrave v. Gannon, 31. E. R.
433, approved of.— Whaley v. W., 111. E. R.
276. (R.)

4. Formerly under the Mortgage Act all
orders should be made on petition. In future
the Court will act on the authority of Ex parte
Friendly Society, 10 Ves. 287, and In re Stew-
ringe’s Charity, 3 Mer. 707; and make orders °
on motion, so soon as jurisdiction has been
obtained on petition. — Cremen v. Johnson;
Hart vy. Carleton, 31. Jur. 180. (R.)

 

VII. WHEN THE CoURT WILL DIRECT A SALE;
WHEN ALLOWED GENERALLY; Incr-
DENTS OF SUITS FOR.

5. On pronouncing a final decree in a fore-
closure suit, the Court will not order an im-
mediate sale, however desirable it may appear,
except upon consent.—Betham v. Mitchell, 5
LE. R. 218. (R.)

6. A decree for a sale in a mortgage suit
ought not to give the mortgagor’s infant heir
or devisee a day to show cause. Under the 1
W. 4, c. 47, s. 11, the Court will order the
infant to execute the conveyance to the pur-
chaser.—Clinton v. Bernard, 6 I. E. R. 355;
Dr. Rep. temp. Sugden, 287. (C.)

7. In a decree for sale in a mortgage cause,
an infant, owner, of the equity of redemption,
is not entitled to a day to show cause.— Hutton
v. Mayne, 9 I. E. R. 343; 3 Jon. & L.586. (C.)

8. A mortgage deed contained a proviso
that “if the principal sum with interest should
be paid on the Ist day of March 1852, the
mortgagee would reconvey.” There was a
covenant by the mortgagor “that he would
pay or cause to be paid to the mortgagee the
said sum of £2000 on the 8rd day of March
1852, with interest at the rate of £6 per cent.
per annum, half-yearly during the continuance
of the deed.” eld, that the interest being in
arrear, the mortgagee was entitled to sell,
though the period for redemption had not
arrived.—ZJn re Lowe, 2 I. Jur. 131. (LE.C.)

9. A deed of mortgage, contained a proviso
that the period for redemption should not
expire for seven years from the date of the
deed; and a covenant, that if the interest
was regularly paid as therein provided, no
proceeding to foreclose should be taken during
the seven years. Held, that the interest being
in arrear, the mortgagee was entitled to main-
tain a petition for sale, though the seven
years had not expired.
Assignment.

The deed of mortgage also gave power to
the mortgagee to appoint an agent or receiver
over the rents and profits of the estate, who
was thereout to pay the head rents; the
interest on the mortgage ; and the surplus to
the mortgagor; and in so doing to pay atten-
tion to the directions of the mortgagor as to
the management of the estate. The mort-
gagee appointed his brother agent, who (the
mortgagor alleged) did not use due diligence
in collecting the rents; and consequently the
interest became in arrear. Held, that the
Court could not withold the absolute order for
sale on a mere allegation of default, as it was
in the power of the mortgagor to point out a
specific default, if such existed. The Court
granted a reference to enquire what was due
upon the principal and interest of the mort-
gage.—In re Prendergast, 2 I. Jur. 145. (1.E.C.)

VIII. Assignment or Mortcace.

1. Inasuit instituted to set aside an assign-
ment of a mortgage, the Court refused to
order the production of an alleged mesne
assignment to the assignor, stated to have
been made by endorsement on the mortgage,
and not mentioned in the bill—O’Keefe v.
Lanigan, 11. Jur. 210. (R.)

2. When the personal representative of a
mortgagee assigns the mortgage, the heir of
the mortgagee, being out of the jurisdiction,
the assignee may, under the 19th sec. of the
Trustee Act 1850, 13 & 14 Vice., v. 60, obtain
an order vesting the legal estate. The relief
given by that sec. is not confined to the case
of re-conveyance to the mortgagor.—In re
Quinlan’s Trusts, 91. C. R. 306. (C.A.)

 

IX. Mortcacr Money.

1. Payment and tender of ; when Satisfac-
tion of Mortgage is presumed.

2. To whom the Mortgage Money belongs
on Redemption.

8. From what Fund to be paid, and by
whom.

4. The Interest on Mortgages.

 

IX. 1. Payment and tender of. and when Satis-
faction of Mortgage presumed.

3. Payment of the mortgage money, before
the day limited by the deed, to the mort-
gagee’s general agent, but without the mort-
gagee having authorised a premature repay-
ment, and without his privity, is not a good
discharge of the mortgage debt.—Burrough v.
Cranston, 21. H. R. 208. (C.)

 

IX. 2. To whom it belongs on Redemption.

 

IX. 8. From what Fund the Mortgage Money ts
to be paid, and by whom.

4, O’S. seized in fee of W., and possessed of

a charge of £2000 affecting K., mortgaged

them in 1817 to B. At the same time, old

judgments affecting W. were assigned to a

[MORTGAGE]

 

Money. 635

trustee for B., as collateral securities. In
1824, O’S. mortgaged the equity of redemption
of W. to L.; and other old judgments affecting
the lands, subsequent to those assigned in
trust for B., were assigned to a trustee for L.
as collateral securities. Prior to the mort-
gage of 1817, O’S. confessed a judgment to X.,
which was puisne to the judgments assigned in
trust for L. In 1825 he confessed another
judgment to Y. and died in 1827. In a suit
to administer his assets, W. was sold, and the
produce thereof applied in payment of the sum
due to B., and in part payment cf the sum
due to L. Those payments were made, not on
foot of the mortgages of 1817 and 1824, but
on foot of the collateral securities. The
charge of £2000 was afterwards paid into
Court. Held, that the charge of £2000 was
the primary fund for payment of B.’s mort-
gage; and that not having been so applied,
the money in Court was to be considered as
part of the real estate, and ought to be applied
accordingly — Kirby v. O’ Shee, 4 I. E. R. 307.
(E.E.)

5. A mortgagor, by will, created a trust to
pay, amongst others, the mortgage debt. Ina
suit to foreclose, &c., Held, that the mort-
gagee was entitled to have his mortgage paid,
in the first instance, out of the general per-
sonal estate of the mortgagor, and, in default
of payment thereout, to have the mortgaged
lands sold; and if the fund so produced
should prove deficient, then the mortgagee
was entitled to come in as aspecialty creditor,
and avail himself of the trast in the will of
the mortgagor, and the decree was so made.—
Marshall v. M*‘Aravey, 3 Dr. & War. 232. (C.)

6. A trader who was entitled to real estate,
and policies of insurance, mortgaged the estate
and policies to one person to secure the same
debt. He afterwards mortgaged the estate
alone to another person, and became bank-
rupt. Held, that the general rule respecting
the marshalling of securities applied, and that
the second mortgagee was entitled to have the
proceeds of the policies of insurance applied,
in the first instance, in payment of the debt
due to the first mortgagee.—Jn re Cornwall a
bankrupt, 6 1. E. R. 63. (C.)

7. P. purchased the lands of R., which, at
the time, were subject to a mortgage for a
term of years. The deed of conveyance, in
which the mortgagee (who did not execute it)
was named as a party, recited the mortgage,
and that P. had agreed with the mortgagor to
purchase all his estate, interest, and equity of
redemption in and to R.; and also all the
estate and interest of the several other parties
to the deed therein; and, in consideration of
a sum of money paid, and an annuity granted
to the mortgagor, and of the sum due on foot
of the mortgage, therein expressed to be paid
to the mortgagee, the mortgagor and mort-
gagee conveyed the lands to P. and his heirs,
freed and discharged of the mortgage term.
The mortgage money remained unpaid at the
death of P. Held, that the devisee of the
636 Equitable.

lands-was not entitled to have the mortgage
paid off out of the general personal estate of
P.—Barry v. Harding, 71.E. R. 313; 1 Jon.
& L. 475. (C.)

 

IX. 4. The Interest on Mortgage Money.

 

X. EquiTaBLE Morteaces.
1. How created.
2. Rights, Duties, and Liabilities of
Equitable Mortgages.

 

X. 1. Equitable Mortgages ; how created.

1. A power of attorney to receive rents, ac-
companied by an agreement that it should be
irrevocable until the principal and interest
of a loan and the premiums on a policy of as-
surance effected to secure it should be paid off
by instalments as specified in the agreement,
is irrevocable, and amounts to an equitable
mortgage; and the mortgagee is entitled to
priority over a subsequent creditor, by judg-
ment affecting the legal estate, in possession
by a receiver.—[ Whitworth v. Gaugain, 3 Hare
421, approved of.] Abdott v. Stratton, 9 I. E. R.
283; 3 Jon. & L. 603. (C.)

2. Semble—It is no objection to an equi-
table mortgage, given for costs due, that they
were not ascertained or delivered.

Ex parte Boville (2 Mont. & Ayr. 382, n.)
observed on.—Bristow v. Warner, 10 I. E. R.
246. (C.)

3. A. agreed to the following effect :—that
he should execute a mortgage, payable with
interest at £5 per cent., in four years, to B.
and C., to secure to them an amount awarded,
viz., £3120, with interest at £5 per cent., on
the principal sum of £2600, late currency,
from the 27th of April 1842, the date of the
award; A, giving reasonable proof that he had
power to grant such mortgage, and that the
property to be mortgaged is adequate se-
curity for it. Held, that such an agreement
(though not sufficient to ground a decree for
immediate specific performance) would autho-
rise the Court of Ch. to order A. to select a
sufficient portion of his estates, and make it
a security in compliance with the agreements.
That, after the lapse of four years, and A.’s
death, it could not be specifically enforced
against the heirs and devisees of A., but would
enable B. and C. to institute an administration
suit, and claim that a sufficient portion of A.’s
real estate be applied in payment of the debt.
That this being so, it was (after asale in the L.
E. Court) to be regarded as a specific charge,
taking priority of general creditors, but puisne
to other specific charges.—In re Humble, 11 I.
C. R. 182. (L.E.C.)

4, A deposit of title deeds, to be delivered
to a solicitor for the purpose of preparing a
legal mortgage to secure an antecedent debt
and future advances, though there be no agree-
ment in writing for a mortgage, constitutes a
valid equitable mortgage.—Bulfin v. Dunne, 11
IC. R. 198. (R.)—[Affd.: 12 1. C. R. 67; 61.
Jur. N.S. 230. (C.A.)]

[MORTGAGE.]

 

Creation of.

5. J. entered into an agreement with E. for
securing moneys owing by him to E.; and
thereby covenanted to give E., as part of the
securities, a mortgage on the lots of a specified
estate, and that the covenantor’s brother, V.,
therein described as owner of Lot 1, would
join in the proposed mortgage.

By a subsequent indenture of agreement,
reciting the first agreement, and to which
these three were parties, J. covenanted that he
would, before an appointed time, convey, or
cause to be conveyed to E., Lot 1, to be held
in fee: and it was thereby agreed by and
between the parties thereto, that if J. should
pay E. the moneys due to him, E. should re-
transfer “all securities of whatever nature or
kind.” It was further provided that, if pay-
ment was not made, E. might by “ entry, fore-
closure, sale, or mortgage of any part or parts
of the said lands, &c., levy the deficiency. J.
and V. covenanted, each for himself, his ex-
ecutors, &c., to pay any deficiency, so that out
of the interest or dividends on railway shares
(previously deposited), or by cash payments of
J. or V.,a certain sum should be received
every year. All three executed this deed.
Held, that it amounted to an equitable mort-
gage which bound V.’s estate,

On the 6th Oct. 1855, V., equitably mort-
gaged his estate to E. The deed of mortgage
was not registered. On the 25th August 1856,
D. obtained a decree in the Court of Ch.
against V.’s estate; and on the 7th of the
ensuing Nov. registered the decree as a mort-
gage under the 13 & 14 Vic. v.29. Held, that
such registration did not give the decree sta-
tutable priority over the equitable mortgage
to E. A judgment, registered under the 3 & 4
Vic., v. 105, and the 13 & 14 Vie. c. 29, only
affects the property of which the debtor was
at the date of the judgment lawfully possessed
as of his own right, and over which he had
disposing power; but does not displace the in-
terest of a prior equitable mortgagee.

M'‘Auley v. Clarendon, Dr. Rep. temp. Napier,
433, approved of. In re Hamilton, 91. C. R.
512, dissented from.

Costs of the appeal added to the appellant’s
security.— Eyre v. M‘Dowell, 7 I. Jur. N. 8.41.
(HB. L.); 9 H. L. Cas., 619.

G6. P., seized under a lease for lives renew-
able for ever of premises, owed the petitioner,
F., £448. To secure its re-payment, P. exe-
cuted a power of attorney authorising F. to
mortgage, &c., the premises, and declared the
power to be irrevocable until F. should have
received the whole of his account against P.,
or payment of any bill, promissory notes, or
bills of exchange, for which P. was then or
should thereafter become liable to or on be-
half of F.. Held, that the power constituted
an equitable mortgage of the premises.—ZJn re
Parkinson's Estate, 10 I. Jur. N. 8. 82. (C.A.)

 

X. 2. Rights, Duties, and Liabilities of Equitable
Mortgagees.

7. P. mortgaged X. and Y. His sons assigned

as a collateral security, their estate in N.

Afterwards P. sold X. to the defendant, and
Equitable.

covenanted against incumbrances. To this
conveyance the morgagee purported to be a
party, but never executed it. P.’s sons joined
in a borid to indemnify the defendant against
all incumbrances,

In 1805 the mortgagee filed a bill to fore-
close against P., his sons, and the purchaser.
In 1806 the sons equitably mortgaged N. to
the plaintiff, who took without notice of the
purchaser’s claim. Held, that the transaction
at the purchase gave the purchaser a right as
against the sons to have N. applied to pay the
mortgage before X. could be so applied; and
that, as the equitable mortgage was made to
the plaintiff pending a suit in which that right
would be given effect to, he took subject to the
same liability.

Semble—If it was not for the pendency of
the suit, the plaintiff, as equitable mortgagee,
would have had priority over the purchaser.

Held, that the plaintiff was entitled to have
Y. sold, and to redeem the mortgage on N.—
Going v. Farrell, Beat. Rep. 472. (C.)

1. A trader executes a mortgage of real
estate, with a borrowing clause, and deposits
the title deeds with the mortgagee. He subse-
quently accepts a bill drawn by third parties,
and being unable to pay the bill when at ma-
turity, writes to the drawers to say that it
shall be paid out of the produce of the mortga-
gor’s premises, and that he will not take his
title deeds out of the mortgagee’s hands until
the bill is paid. The mortgagee communicates
to the drawers his assent to the arrangement.
Held—that the drawers were entitled to an
equitable mortgage.—Ex parte Crosfield, 31. E.
R. 67. (C.)

2. A person who advances money bona fide
on the deposit of title deeds, made by one who
has no right to them, or to the estate to which
they relate, will be protected in equity as a
purchaser for valuable consideration without
notice, and may retain the deeds, though the
person making the deposit was not in posses-
sion of the property, if it be an incorporeal
hereditament.—Joyce v. De Moleyns, 8 I. E. R.
215; 2 Jon. &L. 374. (C.)

3. It is not an objection to an equitable
mortgage, given for costs due, that they had
not been ascertained or delivered. Bristow v.
Warner, 10 I. E. R. 246. (C.)

4. The 7th G. O. in Bankruptcy applies to
equitable mortgages.—In re M‘Cullagh, 111. E.
R. 466. (C.)

5. The plaintiff K. was solicitor for D., who,
at his death, owed K. costs. On D.’s death K.
became solicitor for D.’s executor, the defend-
ant, who, being. indebted to K. for D.’s costs
and further costs as executor, handed over to
him the title deeds of leasehold premises of D.
which had been left on special trusts, together
with a letter making an equitable mortgage.
Funds, applicable to the costs, were misap-
plied. Held, that, the executor having com-
mitted a breach of trust in mortgaging, K.
dealing with him was affected by it, and could

[MORTGAGE.]

 

Welsh. 637

not recover without an enquiry as to the state
of the assets.

Semble—K. was in no better condition than
the executor himself would be.

After a decree to account a minor defen-
dant attained age. Onare-hearing, at his ap-
plication new enquiries were directed, though
there was no new answer filed, and the minor,
after coming of age, had contested the case
under the former decree.—Purcell v. Ruckley,
121. E.R. 55. (C.)

6. An equitable mortgagee, by deposit of
railway shares, is entitled to the priority over
a prior judgment creditor of the mortgagor
who has obtained an order charging the shares
under the 3& 4 Vic., c. 105, s. 28, subsequently
to the mortgage.——Dunster v. Lord Glengall, 3-
I.C.R.47; 51. Jur. 387. (R.)

7. E., by ante-nuptial articles under seal,
covenanted to purchase lands, and to charge
them with a jointure for his wife, he also pro-
posed to charge all property of which he
should, during the coverture, be seized, with
the jointure. Those articles were registered.
He afterwards purchased the lands of U. ;
but did not execute any conveyance for the
purpose of charging them with the jointure,
and he subsequently mortgaged those lands
to J., who had not notice of the articles, by
deposit of title deeds, no conveyance having
been executed to J. Held, that the jointure
was to be paid in priority to the equitable
mortgage.

Quere—Whether Gubbinsv. G. (1 Dr. &
Wal. 161, n.) ever was decided, or would now be
treated as a binding authority.— Creed v. Carey,
71.C. BR. 295; 31. Jur. N. 8.128. (C.A.)

8. The L. E. Court has power to sell the
interest created by a lease containing a co-
venant against assignment, when the lease
has been deposited by way of equitable mort-
gage.—Ex parte Domville, in re Fowler, 14 I. C.
R.19. (C.A.)

 

XI. WetsH Morteaces.

9. The bill stated a mortgage made by deft.
in consideration of £219, and that it contained.
a proviso for redemption in favour of deft.,
his heirs, &c., upon his or their at any time
paying off the £219, with interest. The bill
prayed an account; that deft. might be fore-
closed of all equity of redemption; a sale;
and that deft. should be ordered to bring in
the title deeds. On demurrer—Held, that it
should be allowed, since it appeared by the
bill that this was in the nature of a Welsh
mortgage, and no case was shown entitling
ptfs. to have a sale independently of a fore-
closure; and it did not appear that the title
deeds were sought otherwise than for the pur-
poses of the foreclosure and sale, to neither
of which ptfs. were entitled by their bill—
O’ Connell v. Cummins, 2 I. E. R. 251. (R.)

10. The essence of a Welsh mortgage is, that
there is no forfeiture, the principal not being
payable at any given time.—Balfe v. Lord, 1
638 Judgment.

Con. & L. 519; 2 Dr. & War. 480; 4 L. E.R.
648. (C.)

 

XII. Jupement MorteaceEs.

1. A judgment obtained against a bank-
rupt, and registered as a mortgage, under the
6th and 7th sections of the 13 & 14 Vic., c. 29,
before the issuing of the commission, is a
charge on the bankrupt’s lands, in priority to
his simple contract debts.

The 13 & 14 Vic., c. 29, thus repeals the
126th section of the 6 W. 4, c. 14, the leading
Irish Bankrupt Act.

Quere—Whether an affidavit made by one
only of several conuzees is a sufficient com-
pliance with the terms of the 6th section ?—
-dnre Ryan, 31. C. RB. 33. (B.)

2. A creditor, having obtained a judgment
against the official manager of a banking
company, registered an affidavit of the judg-
ment against the real estate of a former share-
holder in the company, without having issued
asci. fa. against him. Held, that a Court of
Equity ought to give relief against such re-
gistration of the affidavit, as being a cloud
on the shareholder’s title to his lands.—Hone
y. O’Flahertie, 91. C. R. 119; Dr. Rep. temp.
Napier, 505. (C.)

8. In an affidavit, filed under the 13 & 14
Vic., c. 29, s. 6, to convert a judgment into a
mortgage, a description of the defendant’s
last-known place of abode, as “late of the
town of Galway, but now of the county of
Dublin,” was held insufficient, as being too
vague.

The same affidavit stated the amount of the
judgment to be £894, and £3. 2s. 8d. for costs,
whereas the sum mentioned for costs on the
record was £2. 2s. 8d., the fee of £1 for regis-
tration having been added to the costs in the
affidavit. Held, a fatal variance.—Inre Fitz-
gerald’s Estate, 111. C. R. 278; 51. Jur. N.S.
204. (C.A.) [But see Thorpe v. Browne, Law
Rep. 2 H. L. 220.]

4. If an affidavit, filed to register a judg-
ment as a mortgage, under the 138 & 14 Vic.,
v. 29, substantially complies with the require-
ments of its 6th sec., it is sufficient. Such an
affidavit was entitled in the same words as
the record of the judgment, and stated (inter
alia) that “J. T., the plaintiff, by the name
and description of J. T., of 116 Grafton-street,
in the city of Dublin, solicitor, did, on the
15th of July 1858, obtain a judgment in the
Court of Exchequer, against the defendant in
this cause, by the name and description of E.
8. P., of, &. 2... that the usual or last-
known place of abode of the said E. S. P., the
defendant in this cause, the person whose
estate is intended to be affected by the regis-
tration of this affidavit, is at,&c..... that,
to the best of deponent’s knowledge and belief,
the said E. 8. P., the defendant in this cause,
is, at the time of swearing this affidavit, seized
or possessed of,” &c. &c. eld, that the afti-
davit contained a sufficient statement of the
title of the cause.

That the affidavit sufficiently identified the

[MORTGAGE.]

 

By Statute.

defendant in the judgment with the person
whose estate was sought to be affected by the
registration of the affidavit—Zn re Power's
Estate, 111. C. R. 288. (C.A.)

5. An affidavit, registered under the 18 &
14 Vic., c. 29, 8. 6, stated that the sum reco-
vered by the judgment was £265, with £3. 2s.
8d. for costs. The record of the judgment
stated that the sum recovered was £265, be-
sides £2, 2s. 8d. for damages, and £1: for
registry. Held, a fatal variance.—Jn re Edge-
worth’s Estate, 111. C. R. 293; 6 I. Jur. N.S.
10. (C.A.)

6. The owner of an estate, sold in the L. E.
Court, was held estopped from objecting upon
the settlement of the final schedule of incum-
brances, to a claim which he had admitted in
his affidavit, filed as an answer to the condi-
tional order for sale, to be a charge upon the
estate. He had also suffered the conditional
order to be made absolute, and a sale to be
had, without disputing the claim in question.

An incumbrancer cannot avail himself of
an objection filed by another party to the
validity of a claim, to which he has not himself
filed an objection.—Jn re Power’s Estate, 11
IC. R. 295.; 61. Jur. N.8. 7. (C.A.)

7. Statements in the title of a judgment
mortgage affidavit may be incorporated by
reference in the affidavit itself.

A description of the residence of the parties
in an affidavit to register a judgment as a
mortgage, will be sufficient if it be their ordi-
nary trade residence. The description must
be substantially contained within the affidavit
itself.

Such affidavits need not be construed with
strict grammatical accuracy.—[M‘Dowell v.
Wheatley, 71. C. R. 562. commented on and
distinguished.]—Jn re Smith and Ross, 111. C.
R. 397; 6.1. Jur. N.S. 72. (B.)

8. In an affidavit registered under the 13 &
14 Vic., c. 29,8. 6, a statement “ that deponent
was, and still is, a gentleman,” was held to be
a sufficient description of a plaintiff who had
not any trade or profession.—Jn re Edgeworth’s
Estate, 111. C. R. 294. (C.A.)

9. An affidavit filed to register a judgment
as a mortgage, under the 13 & 14 Vic., c. 29,
was entitled in the margin:—“J. M., of
D., in the county of W., farmer, plaintiff ;
T. J. KF. of B., in the county of W., Esq.,
defendant.” The affidavit stated that J.
M., of, &c. &c., had recovered a judg-
ment “ against the defendant in this cause, by
the name and description of Thomas Joseph
Fitzgerald of Ballinaparka, in the county of
Waterford, Esq.” Held, a sufficient descrip-
tion of the name and usual or last-known place
of abode of the defendant.

Semble—That a supplemental affidavit, filed
under the 21 & 22 Vic., c. 105, may be filed
after the death of the conuzor—In re Fitz-
gerald’s Estate, 11 I. C. R. 356. (C.A)
Rights of

1. The interest of a judgment debtor in
lands, against which a judgment has been re-
gistered as a mortgage under 13 & 14 Vic., c.
29, cannot be taken in execution under a writ
of ji. fa.

The 10th sec. of 18 & 14 Vic., c. 29, is to be
read as an exception to the concluding por-
tion of the Ist sec., which enacts that “no
writ of execution (save as hereinafter men-
tioned) shall issue or be issued upon any such
judgment,” &¢.—Jn re Gerrard’s Estate, 14 I.
C.R. 466; 91. Jur. N.S. 21. (C.A.)

2. The affidavit to register a judgment
under the 13 & 14 Vic., c. 29, described the
deft. as “formerly of B., in the county of W.,
but now of the City of Dublin, Esq.”—Held
[following In re Fitzyerald’s Estate, 11 I. C. R.
278; 5 I. Jur. N. 8.204, (C.A.)], that the judg-
ment was not duly registered.

Semble—The object of the statute was to
identify the parties to the judgment, which,
therefore, is duly registered, if the affidavit
describes them in a manner not calculated to
mislead.

The supplemental affidavit, filed under the
21 & 22 Vic., c. 105, can only supply a defect
in the original affidavit, by stating positively
that which had been stated only by way of
recital, but cannot supply a defect in the
description itself— Thorpe v. Browne, 16 I. C.
R. 385; 101. Jur. N. S. 166. (R.)-[Revd.:
Law. Rep. 2 H. L. 220.]

 

XII. Rients Between MorvcGacrEr, AND
JUDGMENT CREDITORS OR OTHERS.

3. A mortgagee obtained a conditional
order under the Mortgage Act, for a receiver.
Payments on account of interest were made.
A judgment creditor appointed a receiver. A
petition having been presented by the mortga-
gee, the conditional order was made absolute
in Chamber; and the receiver extended to
the mortgage. The order was set aside on an
affidavit stating the intermediate payments.

A judgment creditor having a receiver is
not entitled to notice of a petition by the
mortgagée to extend the receiver to the mort-
gage.—Goldsmidt v. Glengall, 11 I. E. R: 608. (C.)

4, Without clear and distinct proof of a
mortgagee’s claim, the Court will not order
payment of interest to him out of funds in the
receiver’s hands, appointed in a cause petition
on foot of a puisne incumbrance, and subse-
quently extended by judgment creditors, unless
the mortgagee instituted separate proceedings
on his own behalf.— Bennett v. Briscoe, 5 I. Jur.
305. (R.)

5. A. was a trustee of B.’s will, by which
real estate was devised to the separate use of
C. for life, and after her death to her children
as she should appoint. A. was also a simple
contract creditor of B. for a sum paid by
reason of B.’s default in a receiver matter.
After B.’s death, C. (B.’s executrix) and A.,
and his co-trustee, joined in mortgaging the
real estate so devised, and personal property,
to a trustee for A., to secure his debt. C. and
the co-trustee covenanted that the property

[MORTGAGE.]

 

Creditors, Sc. 639

was free from incumbrances, except specified
judgments. By a contemporaneous deed, C.
appointed to her children, and amongst others
to D. and E., who had obtained judgments
prior to the mortgage against B. D. and E.
were parties to the deed of appointment, and
by it ratified and confirmed the mortgage,
and all the covenants, &c., therein, as if they
had been parties thereto and had executed it.
Held, that A.’s mortgage, though subsequent
in date, shall have priority over the judgments
of D. and E.-In re King, 4 I. C. R. 300. (P.C.)

6. A., seized in fee of X. and tenant for life
of Y., with joint power of appointment in fee
to A. and his eldest son, and the survivor, and
in default of appointment to A. for life, with
remainder to his son in fee, was joined by his
eldest son in mortgaging both estates to B.
Incumbrancers upon X. were parties to the
mortgage deed, for the purpose of giving
precedence to the mortgage. The deed pro-
vided that the incumbrancers joined in exe-
cuting the deed for the purpose of giving the
mortgage priority, and for no other purpose
whatsoever. The unsettled X. and settled Y.
estates were sold, and the proceeds were in
Court to be allocated. X. was adequate to
pay the mortgage, but insufficient to pay it
and the incumbrancers. Held, that the incum-
brancers who gave priority to the mortgage
had a right to insist that the mortgage should
be deemed to be paid out of Y. before X. was
applied to their prejudice.—ZJn re Keily, 2 I.
Jur. N.§. 302. (1.E.C.)

7. In 1847 G. mortgaged his estates to N.
There was no trust on the face of the deed,
but N. was in reality a trustee for J. In 1848,
J. being largely indebted to the T. Bank,
requested M., manager of the Bank, to take
the mortgage in discharge pro tanto of his
debt. This was done, and a separate credit
opened in the Bank, headed “The G. Loan
Account.” J.’s account was from that time
to the present debited with the amount of the
mortgage, and interest. The mortgage deed
was sent to M., as manager, by L., solicitor
for the Bank, for J. and for N. This deed
was returned by M. to J. and N., the latter of
whom had not notice of the dealings with the
Bank. On several subsequent occasions N.
procured, at the instance and for the pur-
poses of J., large temporary advances from
the L. and C. Bank, on deposit of the mort-
gage deed as an equitable mortgage.

J. had lent for a client of N. (an English
solicitor), £1400, which had been lost. N. had
also lost £6000 (a trust fund), through the
fraud of J. On the 16th Feb. 1856, N. having
discovered the above, procured from J. a
declaration in writing, that N. held the mort-
gage—lIst, to secure the loan then unpaid
to the L. and C. Bank; 2ndly, the £6000 lost ;
8rdly, the £1400; 4thly, the general balance
on the account between J. and N. On the
evening of the same day J. committed suicide.

In the final schedule of incumbrances of
G.’s estate, N. was returned as entitled to the
mortgage, to which the official manager of the
T. Bank filed an objection. Held, in confor-
640

mity with the principle in Rice v. R. (2 Drew.
72)—that N.’s equity was preferable to that
of the Bank.—In re Glengall Estate, 51. Jur.
N.S. 221. (L.E.C.)

 

MORTGAGOR AND MORTGAGEE.

— Recelver against Mortgagee. See Practice,
RECEIVER.

—— Their Rights, §c. See Morteacs, III.

— Costs of. See Practicz, Costs.

— Becoming Lunatic. See Lunacy, VIII.

— When necessary Parties. See PLEADING,
Partizs. ;

 

MORTIS CAUSA.
See Donatio Mortis Causa.

 

MORTMAIN,.
See Cuanity, II, 1—Srarvrs, II, 12.

 

MOTHER.
See Parent anp CuHILp.

[NEXT-OF-KIN.]

NATURAL LOVE AND AFFECTION.
See Conswweration, III, 2.

 

NAVY.
— Assignment of Payin. See AssiGNMENT.

 

NE EXEAT REGNO.
See Practicr, Writ, 4.

 

NEGATIVE PLEA.

See Practicr, Evipence, 11. k—Pueaprne,
Pua, 1. f.

 

NEGLECT.

See Lacues—WILFUL DEFAULT AND
NEGLECT.

 

NEGOTIABLE SECURITIES.
See Bry or Excuance.

 

MOTION.

— Generally See Practicr, Motion.

— For Injunction. See Practicn, Insunction.

— For Leave to amend Bill. See Practices,
Britt, AMENDMENT oF.

— Of Course. See Practice, Motion.

 

MULTIFARIOUSNESS.
See Preapine, Bix1, I, 1. e.

 

MULTIPLICITY.

— Of Suits. See Practice, Masrer, Rerer-
ENCE, l. e.

 

MUSICAL COMPOSITIONS.
See Coprrieut, V.

 

MUTUAL WILLS.
See Witts, XII.

 

NAMES.

 

NATIONAL DEBT.
See Stature, II, 34.

 

NATURAL CHILDREN,
See Bastarp,

 

NATURALIZATION.
See ALIENS.

 

NEGOTIATION OF SECURITY.
— Injunction to Stay. See Practicy, Insunc-
TION.

 

NEPHEWS AND NIECES.
See Wi1x, XV. 6.

 

NEW TRIAL.
See Practicr, New Tria.

 

NEXT-OF-KIN.

— When they, and when Executors take the
residue. See Executors, VII.
See ADMINISTRATION — DIstRIBUTION—WILL,

1. When the personal estate of an infant,
seized in fee of a real estate, was applied in
paying charges affecting it, and he died under
age— Held, that the next-of-kin were entitled
to claim those charges as part of his personal
estate.— Dowling v. Bolton, Fl. & K. 462. (R.)

2. V. bequeathed all her personal estate to
executors, on trust to be placed at interest for
B.’s sole use until she attained age, or married;
and directed them to draw the interest during
B.’s minority, or until her marriage, and apply
it towards her maintenance and education;
when B. should attain age, or be married,
then to pay her the principal and interest, as
and for her own proper money; and if B.
died under age and unmarried, V. bequeathed
the principal and interest to V.’s next-of-kin,
share and share alike, as tenants in common;
if but one, the whole to such one. B. was V.’s
sole next-of-kin at V.’s death, and died under
What

age and unmarried. Held, that B.’s personal
representative, not V.’s next-of-kin at B.’s
death, was entitled to the trust funds.— Jf urphy
v. Donegan, 8 Jon. & L. 534. (C.)

 

NON-CLAIM.
See Fixzs anp Recoveriss, VII.

 

NON-SANE MEMORY.
See Lunacy.

 

NON-EXECUTION.
— When supplied. See Pownn, I. 11.

 

NOTARY PUBLIC.

 

NOTICE.

— In Practice. See Practicr, Notice.
— Of Motion. See Practice, Morton.
— To Agent. See Princirat ano AcEnt, VI.
— Of Trust. See Trust, XIV.
—As between Vendor and Purchaser. See
VENDOR AnD Purcuaser, XIII.
— Under the Registry Acts. See Dunn, XII.
See Titues, XII.
I. Wuat constitutes Notice—Wuen Noticr
TO AGENT AFFECTS PRINCIPAL.
1. In general.
2. In.case of Agents.
3. Respecting the Time of, when
material.
II. Irs Errect—Errect or irs Want.
1. Effect.
2. Effect of Want of.

TIT. WHEN NECESSARY.

 

I. Wuart constirures Notic—E: wHEen No-
TICE TO AGENT AFFECTS HIS PRINCIPAL.
1. In general.
2. In cases of Agency.
3. Respecting the time of Notice:
when it ts material.

 

I. 1. What constitutes Notice: when Notice to
Agent affects las Principal: generally.

1. Quare—Whether a lis pendens in one part
of the United Kingdom is notice in another
art?
Semble—That lis pendens is not notice to
affect a registered instrument.
Quere—Touching the effect of lis pendens in
a foreign country on a purchaser for value.
A person in Ireland bought an annuity
granted out of an annuity charged on an
estate which was the subject of litigation in
a suit in England at the time of the purchase.
Held, that he was a purchaser for value,
without notice, since the original annuity was
not sought to be impeached in the suit.— Houl-
ditch vy. Wallace, 5 Cl. & F. 629; 1 Dr. & Wal.
490. —[Affg. Wallace v. Marquis of Donegall,
1 Dr. & Wal. 461. (C.)]

[NOTICE.]

 

Constitutes. 641

2. A party, claiming title under a lease or
any other instrument, is presumed to know
the title under which he takes, and the cir-
cumstances connected with it, unless he can
show the contrary.— Butler v. Earl of Portar-
lington, 4 I. E.R. 1; 1 Dr. & War. 20; 1 Con.
&L.1. (C.)

3. Enrolment of the assignment of a judg-
ment does not operate as notice, any more
than registry of a deed.—Ferrall v. Boyle, 1 I.
E.R. 408. (C.)—[Affd.: 12 Cl. & F. 740.]

4. In asuit to impeach a lease which had been
sold—Held, that the circumstance of the lease
having been granted at an undervalue, and in
consideration of services, was sufficient notice
to the purchaser to put him on his guard.—
Ker v. Lord Dungannon, 4 1. BE. R. 343; 1 Dr.
& War. 509; 1 Con. & L. 335. (C.)

5. Claimants under a marriage settlement
after a decree to account are affected with
notice, for they are purchasers pendente lite, a
decree for an account being only a continu-
ance of the litigation. Higgins v. Shaw, 2 Dr.
& War. 356; 1 Con. & L. 400. (C.)

6. The Count and Countess D’O., being
entitled in her right to an estate subject to
incumbrances, a receiver was appointed, who
was directed to pay her £400 a-year out of the
estates, for her separate use. A subsequent
deed settled the estates to her separate use,
subject to charges in favour of Count D’O.
and others. Until this arrangement was com-
pleted the allowance was to be paid to Lady
D’O. She afterwards mortgaged the estates
for £2100, to the plaintiff, excepting the £400
a-year, which was by a separate clause in the
deed assigned to a trustee to secure the pay-
ment of the interest. The deed was registered
as a deed of mortgage of the estates generally,
and the memorial did not particularise the
£400 a-year. The receiver refused to recog-
nise the title of the trustee, but paid the £400
on Lady D’O.’s order to him. Lady D’O,
afterwards borrowed £5000 from the defend-
ant, who, before lending it, was informed by
the receiver that he had heard there had been
an assignment of the £400 a-year; but that
he did not recognise it. A mortgage of the
estates was executed to the defendant, and
the £400 a-year was assigned by a separate
deed to a trustee (who had been agent and
solicitor to Lady D’O.), to secure the interest
of the £5000; and an order was obtained to
pay it to him. This order was afterwards
rescinded, and a bill was filed to settle the
priority of the claims of the plaintiff and
defendant. Held, that the £400 a-year, being
a portion of the estate, was within the Registry
Act; and that the description in the memorial
was sufficient to include it.

Semble—That the information given by the
receiver to the defendant, coupled with the
memorial, was sufficient notice of the plain-
tiff’s mortgage.

The doctrine of Dearle v. Hail, 3 Russ. 1, is
confined to choses in action, and was not there-

81
642 What

fore applicable to this case.—Rochard v. Fulton,
71. E. R.181; 1 Jon. & L. 413. (C.)

1. Plaintiff, claiming lands under uw deed
registered in 1805, filed his bill against the
defendant in possession under a deed executed
and registered subsequently, praying an issue
at law or an ejectment ; removal of temporary
bars; and, in the event of succeeding, an ac-
count of rents and profits. Defendant pleaded
a purchase for value without notice, in 1830
(as in Walwyn vy. Lee, 9 Ves. 24), and de-
murred to the account. Held(disallowing the
plea), that the prior registration gave priority
both in law and equity, even as against a
purchaser for value without notice.

Semble—A person cannot protect himself by
this plea where, by due diligence, he could
have discovered the real state of the title.
Neglecting to search the registry is a failure
of due diligence.

Held, that when at the time of a purchase
tenants are in possession, the purchaser enter-
ing into possession and receipt of the rents,
has constructive notice of the title by which
the tenants hold. :

Held, overruling the demurrer, that, as the
plaintiff could not have full relief except in
Fquity, he was entitled to the account, as con-
sequential to the relief, after he should have
established his title at Law.— Hamilton v.Lyster,
71. E.R. 560. (R.)

2. By marriage settlement a rentcharge was
granted upon trust for the husband and the
issue of the marriage. The lands were granted
to other trustees for a term of years upon trust
to secure the rentcharge. One trustee of the
rentcharge admitted that, before the settle-
ment was executed, he had notice of a prior
incumbrance on the lands ; and one trustee of
the term denied that he had such notice. No
evidence of notice was given. Held, that notice
to the trustee of the rentcharge sufficed; but,
there not being any issue in esse, the Court
would not declare that their interests were
bound by the prior incumbrance, but declared
that the trustee had notice of it.— Wise v. W.,
2 Jon. & L. 403. (C.)

3. The purchaser of a leasehold interest
under a decree is bound by notice of all the
covenants contained in the lease under which
the property is held.

The omission to state, in the rental of a
leasehold sold under a decree, a covenant in
the lease against the exercise of particular
trades isnot misdescription, although the value
of the premises may be lessened by the cove-
nant. But when the rental described the
premises as held for the residue of aterm at a
yearly rent, though by the breach of a cove-
nant the term had been forfeited, or an addi-
tional rent incurred, at the election of the
lessor, the Court held it misdescription, and
discharged the purchaser.

The rental described premises as let by one
lease at one rent, whereas they were let by two
leases at two separate rents, together equal to
that stated inthe rental. edd, that although

[NOTICE]

 

Constitutes.

there was misdescription it was not such as
affected the title.

A. having a term for 150 years, assigned it
by way of mortgage in 1745, and in 1806 took
a new lease for 130 years of the same premises,
his interest in which was sold under a decree
in 1846. No evidence was given to show that
the mortgage was paid off, or when interest
had last been paid on it. Held, that the fact
of the mortgage being dated in 1794, was not
of itself evidence against a purchaser, that the
mortgage was paid off or barred by the Sta-
tute of Limitations.—Spunner v. Walsh. 10 I. *
E. R. 386. (R.)

4. T., a trustee, lent trust-money on mort-
gage toM. By an arrangement on the mar-
riage of M.’s daughter, a valuable leasehold
interest was granted by M. out of the mort-
gaged premises and put in settlement, T. being
the person who managed it and the solicitor
who prepared the lease and settlement, the
daughter or her husband not being informed
of the mortgage. TT. afterwards, with his co-
trustee and their c. g. trusts, filed a bill to fore-
close the mortgage, and sell discharged of the
lease, if necessary. Held, that the parties de-
riving under the settlement must be fixed with
notice of the mortgage and trust, and could
not rely on T.’s conduct as a defence even
against him, and therefore could not object to
his being a co-plaintiff.

Queere—Whether, if notice were not shown,
such an equity against a trustee would be a
defence ?—Twycross v. Moore, 13 I. E. R. 250.

©.)

5. The twenty-one days’ notice of a call, re-
quired by 22nd sec. of 8 Vic., c. 16 (Companies
Clauses Consolidation Act), must be exclusive
of the first and last days.

The abandonment of part of a Railway is no
defence to a claim for calls; nor is the non-
subscription of the prescribed capital a de-
fence.—In re Jennings, 11. C. R. 236. (B.)

6. When there is a lease of church-lands
and tithes made by an ecclesiastical corpo-
ration, and a sub-lease of part made by the
lessee, with at. g. covenant to renew on the
terms of the sub-lessee paying his proportion
of such fines as the lessee shall have to pay on
obtaining a renewal of his interest; and there
is not a mutual covenant by the sub-lessee to
accept a renewal; and notice is given him to
pay his proportion of the fines—Semble, If the
sub-lease be put in settlement, notice by the
lessee to the tenant for life under the settle-
ment suffices, without giving notice also to the
trustees thereof.—Morgan v. Gurley, 1 I. C. R.
482. (C.)

7. Semble—Proceedings in this Court consti-
tute the six months’ notice to which a mort-
gagee is by common law entitled.—In re Lighton,
41. Jur. 35. (1.E.C.)

8. Ina suit for specific performance, a re-
ference was directed; whether the vendor
could make good title. The lease, the sub-
ject of the purchase, was executed by husband
What

and wife; and the wife, after her husband’s
death, received the rent. The purchaser gave
parol evidence of the existence of a deed
alleged to be a settlement; but very slight, if
any, evidence of its contents. The lease, sub-
sequent to the date of the alleged settlement,
was registered, as were also two subsequent
assignments of it. The Master reported that
the vendor could not make good title, by
reason of the existence of the settlement.
Held, that the fact of the lease being executed
by a married woman was not notice to the
lessee, or to the vendor, of a settlement having
been executed.

That the Registry Act conferred u good
title on a purchaser not having notice of the
prior deed.

That the confirmation of a lease by a mar-
ried woman, though incapable of registry,
being an act in pais, related back to the void-
able lease of the husband, and set it up; and
was not to be looked upon as the act of the
wife.

That there being several objections to the
title, and the Master having reported a bad
title on but one, the proper course was to send
the case back to the Master to review his re-
port, directing him to have regard to the deci-
sion of the Court.—Gray v. Strangman, 5 I.
Jur. 113. (C.)

1. In 1781, A. agreed, on the occasion of
his marriage, to settle the lands of X. The
articles were lost, but by one memorial it ap-
peared that X. was conveyed in trust, subject
as therein mentioned, to pay the rents and
profits to A. for life, and after his decease
upon trust, at the request of the eldest son of
A., or of such person as should then be heir
or heirs of the eldest son, to convey X. to the
person so requiring the conveyance; and if
A. died in the lifetime of B., his intended
wife, without issue male then living, or with-
out B. being then enceinte of ason, who should
be afterwards born alive, and should have a
daughter or daughters, then upon trust to
convey to such daughter or daughters. A.
had but one child, a son, who died in the life-
time of B. In 1828, the respondent purchased
a portion of X. from A. and the person who
was then heir of his only son. The respon-
dent denied notice of the articles of 1781. In
1844, A. died, and the petitioner was the per-
son who was then heir of the only son of A.
Held, that he was not entitled to require a
conveyance of X., as against a purchaser for
valuable consideration.

The memorial did not mention the county
in which X. was situate, but one of the parties
was described as of X., in the county of T.
Semble—As the articles were not produced, it
would be presumed that the memorial fol-
lowed them, and was therefore sufficient.

Semble—That Penny v. Watts, 1 Mac. & Gor.
150, has carried too far the doctrine of con-
structive notice, and cannot be considered
established law.—Abboit v. Geraghty, 41.C. R.

15. (C.)

2. M. was tenant for life of KX. and other
lands, remainder to his first and other sons in

[NOTICE.]

 

Constitutes. 643

tail. W. was supposed to be the eldest son of
M. In 1832, M. and W. suffered a recovery
of all the lands by which they were conveyed
to the use of M. for life, remainder to provide
£100 a-year for S., the wife of M., remainder
to W. in tail. This deed was duly registered.

By marriage articles, bearing date the 12th
of March 1833, W. agreed to charge all the
lands with a jointure of £200 a-year for his
intended wife, J. This deed was never regis-
tered. After the death of M., T., one of his
sons, claimed the lands. W. and T. entered
into a compromise by a deed of the 13th Feb.
1835, which charged £100 per annum on K.
for $8. She released the former annuity, sub-
ject thereto. K. was limited to W. in fee.
This deed was registered. W. was asolicitor,
and as such prepared the deed. No other
solicitor was employed about the preparation
of the deed save one, who, by affidavit, stated
that he acted only for T. Held, that W. must
be taken to have acted as solicitor for §., and
that she was in consequence affected with
constructive notice of the registered deed of
1833.— Tucker v. Henzill, 41. C. R. 518. (C.)

3. On <A.’s marriage, her settlement, of
which B. was a trustee, was prepared by K., a
solicitor, who afterwards, on B.’s marriage
with C., prepared their settlement, whereby
C.’s property was not settled; but it was
stated that K. had been consulted by her.
Held, that C. had notice of A.’s settlement.—
Moore v. Mahon, 21. Jur. N. 8.277. (C.)

4. R., by marriage settlement in 1758,
settled the lands of K., in the barony of C.
and county of L., to the use of himself for
life, remainder to his first and other sons in
tail. In 1786, R., and O., his eldest son,
entered into articles of agreement, which
recited that by the deed of 1758, K., in the
barony of C. and county of L., had been
settled in strict settlement, and by which R.
and O. agreed to suffer a recovery of the lands
(without further describing them), which
should enure to the use of R. for life, re-
mainder to the use of O. for life, remainders
over to the other sons of R. and their chil-
dren, in strict settlement. No words of limi-
tation were contained in the articles, which
provided an annuity of £50 a-year out of K.
for O. during the life of R. They were not
registered until 1791, and the memorial al-
together omitted to state the barony in which
K. was situate. A recovery of K. was duly
suffered in the year 1786, and the deed creat-
ing the tenant to the precipe, which was
enrolled, but not registered, declared that the
recovery should enure to the uses of a deed to
be executed in pursuance of the articles. No
deed declaring the uses of the recovery was
executed. The petitioner was son of one of
the sons of R., and all the limitations previous
to the estate limited to him were exhausted.
In 1788, O., by deed reciting that he was
entitled to K. in fee, subject to the life estate
of R. therein, and that he was entitled to an
annuity issuing out of K., conveyed to M.,
K. subject to a perpetual rent of £15 a-year,
and conveyed to a trustee for M. the annuity
644 What

during R.’s life. A document, purporting to
be a memorial of this deed, was registered in
1788. It neither described the lands conveyed
nor the nature of the conveyance. R. died in
1789. In 1808 O. conveyed the rent of £15 a-
year reserved by the deed of 1788 to a trustee
for M. In 1811 R. was, with other lands,
settled by M. for value. The respondents
claimed under that settlement. On a peti-
tion, filed to carry the articles of 1788 into
execution ; /eld, that neither the deed of
1786 nor that of 1788 was effectually regis-
tered; that the mention in the deed of 1788
of the annuity created by the articles of 1786
was not, as against persons claiming under
the settlement of 1811, notice of the articles ;
and that the petitioner was not entitled to
recover.

If the barony in which the lands affected by
a deed are situate be mentioned even in a
recital in that deed, the memorial for registra-
tion must also mention the barony.

A purchaser is not fixed with notice of a
deed, by evidence that he had notice of an
annuity created by that deed, which, from the
notice given of its existence, appeared to
have expired many years before the purchase.—
Stephenson v. Royce, 5 1. C. R. 401; 27. Jur.
N. 8. 68. (C.)

1. A tenant entered into a contract fora
lease with a tenant for life, which was not
binding on the remainderman. He entered
into possession, and after the death of the
tenant for life, having sent a copy of the con-

[NOTICE.]

 

tract to the land agent of the remainderman,
expended a large sum on the lands. The |
remainderman knew, or had an opportunity |
of knowing, of the expenditure, though he |
denied, and it did not appear, that the con-
tract was directly communicated to him.— '
Held, that the notice of the contract to the |
land agent did not affect the remainderman j
so as to give the tenant an equity against him
by reason of his acquiescence in the expendi-
ture.—O’Fay v. Burke, 8 I. C. BR. 225, (R.)—
(Affd.: 81. C. R. 511. (C.A.)]

2. F., proprietor of a house, during 1856,
1857, and 1858, obstructed the ancient lights
of the next house, wherein C. carried on his
business during those years, and was seized
of an estate in fee. C., however, did not
reside in that house, and died before the pre-
sent motion was made for an injunction by
the present tenant in guasi fee. No written
notice of the obstruction was served on C.
Held, that the Court would presume notice.
Such notice need not be in writing to bring it
within the 2 & 3 W. 4, ¢. 71, s. 4 (21 & 22
Vic., c. 42, Lr. —Dockrell v. Findluter, 11 I.
Jur. N. 8.161. (C.)

38. A will directed that no part of the testa-
tor’s property, except the interest in a house,
should be sold or disposed of for ten years
only, if thought advisable by the executors ;
and bequeathed testator’s property to his son,
a minor. The executor sold the interest in
the house to the respondent, who had notice

 

of some restriction on the executor’s power

Constitutes.

to sell. There were not any debts. In a suit
to impeach the sale—Held, that the sale hav-
ing been a breach of trust, the respondent was
bound to prove that it had been at full value.—
M‘Mullen v. O'Reilly, 151. C. R. 251. CR.)

4. In 1683 the owner in fee of a manor de-
mised to A., for three lives renewable for ever,
a mill, with adjoining lands, and the right of
quarrying stones in all the freestone quarries
then within the manor, or which should there-
after be found within it.

In 1744 there was made to B., a purchaser, a
conveyance in fee of part of the manor, with
a right to quarry on the lands thereby con-
veyed, without any reservation, and without
reference to the prior lease which had been
made before the Irish Registry Act ; the con-
veyance of 1744 was defectively registered.

There was not any evidence whether any
quarries had been open on these lands in 1744,
but it appeared that for 50 or 60 years before
the institution of this suit the right of quarry-
ing on this portion of the manor had been
exercised uninterruptedly by the representa-
tives of A.’s interest. Neither A. nor any of
his representatives had ever been in privity
with B., but renewals of the lease of 1683 had
from time to time been executed by the owner
of the unsold portion of the manor. In a suit
for a renewal—f7eld, that as there had been, so
far as living memory extended, an uninter-
rupted enjoyment of the right of quarrying on
B.’s lands, which right would be justified by
the lease of 1683, the presumption was that
there had been in 1774 a user of this right
such as would have given B. notice of the
lease of 1683.

That a renewal of that lease should com-
prise only such of the quarries on the lands
conveyed by the deed of 1744 as were already
open and worked.—yle v. O’ Connor, 161. C.
R. 46. (C.)

 

I. 2. In cases of Agents.

5. A registered mortgage will not be pre-
ferred to a prior unregistered annuity deed,
when the mortgagee’s solicitor was, at the
execution of the mortgage, fully aware of the
existence of the annuity deed, in preparing
and executing which he had assisted, and in
which he was a trustee; there being also some
evidence to show that its non-registry was
caused by his improper conduct.

Notice, to bind a purchaser, must not of
necessity be notice in the same transaction.—
Nixon v. Hamilton, 11. E.R. 46; 2 Dr. & Wal.
364. (C.)

6. Semble—When the assignor of a policy is
agent of the company, notice to him is not
sufficient, though formally given.—In re Hen-
nessy, 5 I. E. R. 259; 2 Dr. & War. 555; 1 Con.
& L. 559. (C.)

7. The solicitor settled the estate on the ©
marriage of his son; he himself prepared the
settlement for all parties, which recited the
documents connected with the purchase. Held,
that although where a solicitor, being vendor,
To Agents.

acts for the purchaser from him, his knowledge
may not always be constructive notice, yet
such a doctrine did not apply to this case;
and that the son, his wife and children, were
bound as purchasers with notice.

Form of a decree setting aside a sale at suit
of an incumbrancer on the estate sold, on an
equity existing between him and the purchaser.
Atkins v. Delmege, 121. E.R. 1. (C.)

1. Notice, to one of the directors of a bank,
of a prior unregistered deed, is not notice to
the board of directors so as to bind the share-
holders where such director has not communi-
cated his knowledge, and the existence of the
prior unregistered deed has been fraudulently
concealed, the director being himself a party
to the fraud.

Notice to the trustee of a duly registered
deed will not affect the priority of that deed
when such notice consists of the trustee’s
knowledge of a prior unregistered instrument
executed by himself, which knowledge he
fraudulently abstained from communicating.

Notice to a person, who is employed only
for some specific purpose, and is under no
obligation to communicate the knowledge
which he possesses, does not bind a purchaser
who employs an agent who really transacts the
business.

On the 15th of March 1855, J., being largely
indebted to the T. Bank, and requiring fur-
ther advances, entered into a written agree-
ment whereby he, in consideration of an
advance to him by the T. Bank of £10,000,
agreed to assign the lands of C. to J. and
R., upon trust to sell, and out of the proceeds
to pay all past, present, and future advances
made to him by the T. Bank. This agree-
ment J. subsequently signed; his signature
being witnessed by N., the sec. of the L. and
C. Bank, it, was registered. J. was then chair-
man of the board of directors of the L. and
C. Bank. §. was sole managing director of
the T. Bank; and R. was a director of the L.
and C. Bank.

In July 1855, S. made to the board of
directors of the L. and C. Bank a proposal
for a loan to J., and stated that J.’s debt to
the T. Bank did not exceed £40,000, and that
the T. Bank did not hold any security from
him. The directors of the L. and C. Bank
advanced to J. £95,000; and, by deeds of the
Ist of August and 7th of September 1855, J.
conveyed the lands of C. to B., L., and 5.,
upon trust to sell, and pay all incumbrances.
These deeds were registered in August and
September 1855.

In 1857 the lands in question were sold in
the I. E. C., which held that the registered
deeds of the Ist of August and 7th of Septem-
ber were entitled to priority over the unregis-
tered agreement. The official manager of the
T. Bank appealed on the ground (among
others) that the directors of the L. and C.
Bank had, at the time of the execution of the
deeds of the Ist of August and 7th of Sept.,
notice of the equitable agreement.

The evidence disproved actual notice to the
directors. It appeared that the agreement
had, by the express direction of S., been al-

[NOTICE. }

 

Effect of. 645
lowed to remain unregistered; that he had,
for the purpose of saving the credit of J.
(whose solvency was essential to’! the welfare
of the T. Bank), fraudulently concealed the
knowledge of the agreement; and that it was,
from the commencement, the intention of all
parties to keep secret that agreement. Held,
that under these circumstances actual know-
ledge possessed by J., the chairman, R., a direc-
tor, and §., a trustee of the deed of the Ist
Aug., was not such notice as bound the direc-
tors of the L. and C. Bank.

V., the solicitor of the L. and C. Bank,
when about to register the deeds of the lst of
August and 7th of September, applied to K.,
the solicitor of the T. Bank, for information
and assistance. K. did not disclose the agree-
ment of the 15th March, which had, he thought,
been abandoned, and which he knew was to be
kept secret; but he did, as to other securities,
give V. information; in consequence of which
the L. and C. Bank stopped part of the loan.
K. also assisted V. in registering the deeds.
Held, that these transactions did not make
K. the solicitor and land agent of the L. and
C. Bank, so as to fix them with the notice
which he possessed of the agreement.—ZJn re
Burmester, 9 I. C.R. 41; Dr. Rep. temp. Napier,
559. (C.A.)

2. R.. the owner of lands, a solicitor, mort-
gaged them to S. on March 29th 1856. By
arrangement between the parties, the mortgage
was not registered until April 8rd 1859. On
the 7th March 1859, R. leased, on fine, the
same lands to M.; the lease was registered on
March 16th 1859. R. prepared the lease, and
had it registered ; for which M. paid him costs
out of pocket only. M. employed no other
solicitor in the transaction; nor had he ever
employed R. as his solicitor in any other trans-
action. Held, that R. was M.’s solicitor in
the transaction: that M. must therefore be
held to have had, through R., notice of the
prior unregistered mortgage ; and that the
lease should be postponed to the mortgage.—
In ve Rorke’s Estate, 141. C. R. 442; 81 Jur.
N. 5. 245. (C.A.)—[Affirming decision: 13
I. C. R. 278; 81. Jur. N. 8.53. (L.E.C.)]

 

IL. 3. Respecting the Time of Notice: when it is
material.

 

Il. Errect or Notice: Errecr or Want or
Notice.
1. Effect of Notice.
2. Effect of its want.

 

Il. 1. Notice; Effect of:

3. W., as land and law agent of H., nego-
tiated and was a party to a deed of separation
and maintenance between H. and his wife, C.
By fraud W. prevented its registration. Four
years afterwards he was employed throughout
the negotiation of a loan of money, which
was advanced on a registered mortgage of the
estates comprised inthis deed. In that nego-
tiation, W. acted as solicitor, as well for H.
the borrower, as for D. the lender. In a con-
test for priority between the registered mort-
’

646 Its

gage, and the unregistered deed of separation;
Held, that since knowledge of the first deed
was clearly brought home to W., and its con-
tinuance proved so clearly as to make its
concealment fraudulent while he was acting
in the mortgage transaction, W.’s fraud was
visitable on D., whose agent he was; that D.
should be treated as one who, through his
agent, had actual notice of the first deed; and
that, therefore, his registered deed should be
postponed to C.’s unregistered deed.— Nixon v.
Hamilton, 1 1. E.R. 46; 2 Dr. & Wal. 364. (C.)

1. Semble—That lis pendens is not notice to
affect a registered instrument.— Wallace v.
Marquis of Donegal, 1 Dr. & Wal. 462. (C.)—
[See Houlditch v. Wallace, 1 Dr. & Wal. 490;
5 Cl. & F. 629.]

2. A femme covert or infant is as much bound
as an adult, by notice—Jones v. Kearney, 4
I.E. R. 74; 1 Dr. & War. 184; 1 Con. & L.
34. (C.)

38. One who takes an assignment of a lease
from the lessor’s agent, with notice of his
character as agent, has cast upon him the same
liability of sustaining the lease as the agent
would have had, but for the assignment. If
the agent cannot uphold the lease, neither
can his assignee.—JMolony v. Kernan, 2 Dr. &
War. 31. (C.)

4. The purchaser of a reversion under a
decree will not be precluded from taking ad-
vantage of a breach of covenant incident to
the reversion, by notice of the breach having
been committed before the sale was confirmed.

Notice to the solicitor is notice to the client,
but that rule does not extend to cases in
which the solicitor acts for third parties.—
Gerrard vy. O’ Reilly, 3 Dr. & War. 414; 2 Con.
&L. 165. (C.)

5. As to the argument that notice should be
in the same transaction ; it is true the rule is
subject to that qualification, but still there is
an exception in those cases in which, from
the surrounding circumstances, from the one
transaction being so recent, or so closely con-
nected with the other, you must presume the
party must have remembered it; and conse-
quently in these cases the notice, although
not in the same transaction, is binding. The
only difficulty is, that this is a case of registry,
and that in cases of registry it has been held,
that direct notice is requisite, and I am dis-
posed to follow these decisions, and, as between
a registered and an unregistered instrument,
not to bind the party who has the legal prior-
ity by any casual circumstances, which in other
eases might be considered as constructive
notice. But here it has been admitted that
notice to the agent is notice to the principal,
and, as the foundation of the rule is know-
ledge, and as the solicitor of the party is to be
deemed possessed of that knowledge, although
he is also the owner of the property, notice to
him is notice to his client.—Marjoribanks v.
HHovenden, 6 1. E. R. 248; Dr. Rep. temp. Sug.
ll. (C.)

6. A person who had borrowed money from

[NOTICE.]

 

Effect.

a trustee without notice of the trust, and after
notice of the trust repaid it, as alleged, under
threat of legal proceedings, to the trustee, de-
creed under the circumstances to pay it to the
c. q. t. notwithstanding the alleged previous
payment.—Sheridan v. Joyce, 7 I. E. R. 115; 1
Jon. & L, 401. (C.)

7. Those who, with notice of his title, deal
with a person entitled to a partial interest in
an estate, are responsible for any dealing with
the property which professes to incumber and
embarrass the estate of other claimants under
the same instrument. They are not at liberty
to deal with the estate so as to embarrass
those other claimants.—Wixon v. Robinson, 7
LE. R. 520; 2Jon.GL.4. (C.)

8. A father, having a power of appointment
among his children, appointed a large portion
of the property to one son, who shortly after
mortgaged it. Both deeds were prepared by
the mortgagee’s solicitor, but were both at-
tested by the family solicitor of the father
andson. The mortgage and receipt endorsed
treated the money as paid to the son; but the
father, who had a legal estate, was a party to
the mortgage, and the mortgagee wrote a letter
of the same date to the father, promising not
to call in the money for three years. Both
father and son joined in a collateral bond.
The draft mortgage furnished to the family
solicitor differed in date from that executed.
An underhand agreement was alleged, but not
proved, to have been made by the mortgagee’s
solicitor, against whom the bill was dismissed
by consent. There was no proof that the
father received the money, except a transfer
to his credit at a banker’s, a considerable
time after. He became a bankrupt some years
subsequently. In asuit to impeach the trans-
action as a fraud on the power and unfair—
Held, that although the transaction was sus-
picious, it must be supported in favour of the
mortgagee.—Hamilton v. Kirwan, 8 I. E. R.
278; 2 Jon. & L. 393. (C.)

9. A father seized of the absolute interest in
the lands of K. and M., and of an estate for
life, with remainder to his first and other sons
in tail, in the lands of F., and indebted by
judgments, charges upon all these lands, by
settlement on the marriage of his second son,
settles K.on him and the issue of the marriage,
and by a contemporaneous deed conveys his
life estate in F., and the reversion subject to
his life estate in M., to his eldest son, who
covenants generally to indemnify the lands
settled on the second son against all the fa-
ther’s incumbrances. Held, that a subsequent
mortgagee of F. and M., with notice of this
covenant and of the incumbrances, was bound
by them, and was not entitled to contribution
as against K.—Power v. Standish, 8 I. E. R.
526. (E.E.)

10. A judgment was obtained in 1817; and
a consent in certain causes in 1833 admitted
that the amount of that judgment and several
others was due, and ordered that the receiver
should be continued to keep dowa the interest,
and that if it was paid, the creditors should not
Its

proceed on their judgments for eight years. In
1834 J., by his solicitor D., med a bil refer-
ring to the consent, and in 1837 took a
mortgage of the estates from the heir of the
judgment debtor, D. still acting as his solici-
tor. Held, that J. had notice of the judgment
of 1817.

That though the judgment had not been re-
vived or redocketed (nor registered under the
recent. statute), the mortgagee having notice
of it took subject and puisne to it.—Beere v.
Head, 8 I. E. R. 647, (R.)—[Rev. 91. E.R.
76; 3 Jon. & L. 340. (C.)]

1. The rule prohibiting a trustee, who is a
solicitor, from charging costs against his c. q. t.
considered. Securities containing such charges
set aside where the trust deed did not clearly
authorise them, notwithstanding letters re-
cognising the right to charge them, and a
petition for taxation presented by the . g. t.,
the letters having been written, and securities
given under influence, and the latter being
improvident.

The securities set aside against a purchaser
for value from the solicitor, with notice.—
Gomley v. Wood, 9 I. E. R. 418; 3 Jon. & L.
678. (C.)

2. The plaintiff, V., was solicitor for D.,
who, at his death, was indebted to V. for costs.
On D.’s death V. became solicitor for D.’s
executor, the defendant, who, being indebted
to V. for costs of D., and further costs as ex-
ecutor, handed to V. the title deeds of lease-
hold ‘premises which D. had left on special
trusts, together with a letter making an equi-
table mortgage. Funds, applicable to the
costs, were misapplied. Held, that the execu-
tor having committed a breach of trust in
mortgaging, V.,dealing with him, was affected
by it, and could not recover without an en-
quiry as to the state of the assets.

Semble—V. was in no better condition than
the executor himself would be.

After a decree to account, a minor defend-
ant attained his age. Ona re-hearing at his
application, new enquiries were directed, al-
though there was no answer filed, and the
minor, after coming of age, had contested the
case under the former decree.— Purcell v.
Ruckley, 12 I. E. R. 55. (C.)

3. The rental of lands sold under a decree
stated the date, tenure, and rent of a tenant’s
lease, but not a clause in it giving the tenant
restricted power to fell and dispose of the
timber, which was very valuable. Held, that
the purchaser having notice of the lease, was
bound by constructive notice of the clause re-
lating to the timber.

The rental described lands as held by lease
for three lives and 31 years; the lease being
for three lives and the survivor, and if all the
lives should die before the expiration of 31
years, for so much of such term of 31 years
from that period as should be to come upon
the decease of the survivor. Held, that the
rental being substantially correct, there was
no misrepresentation which would entitle the
purchaser to be discharged from the pur-
chase.— Vignolles v. Bowen, 121. E. R. 194. (B.)

[NOTICE.]

 

Effect. 647

4, Lands held under a bishop’s lease for 21
years were sold under w decree. The rental
stated the date of the lease, and that the lands
were subject to a rentcharge, which appeared
to be a permanent charge on them. Held, that
the purchaser was bound by constructive notice
of a non-alienation clause and other unusual
covenants in the lease.

That he was bound by notice of the deed
granting the rentcharge, and all its contents;
and could not therefore object to the purchase
because the rentcharge was secured by a term
short by six months of the 21 years, with a
t. g. covenant for renewal. Vaughan v. Magill,
127. E. R. 200. (R.)

5. An estate having under a decree of the
Court of Exchequer been sold for £12,000, the
purchaser lodged in Court £5000 of his own
moneys, and applied to the plaintiffs in the
present suit to lend him the remaining £7000,
on the terms of securing that sum as the first
incumbrance upon the lands. Subsequently
to an agreement with the plaintiffs for this
loan, but before it was carried out, the pur-
chaser confessed a judgment for value. The
plaintiffs, although having notice of the judg-
ment, advanced £8000, of which £7000 was
paid into Court as the residue of the pur-
chase money, and £1000 to the purchaser. By
consent, which was made an order of Court,
the conveyance of the lands was made to a
trustee for the purchaser and the plaintiffs.
The trustee subsequently, in consideration of
the £8000, mortgaged the lands to the plaintiffs.
Held, that the judgment was prior to the mort-
gage as a charge upon the lands.— Walcot v.
Lynch, 13 I. E. R.199.  (C.)

6. Notice of an unredocketed judgment will
not make it binding against a purchaser.—In re
Huthwaiie, 21. C. R. 54. (P.C.)

7. A., having effected a policy of insurance,
by deed of the Ist of Nov. 1827, assigned it to
B., in trust for his wife and children. B.
afterwards assigned the policy to C., for value,
by a deed falsely reciting that A., by deed of
the Ist Nov. 1827, had assigned the policy to
B. for her own benefit. C. died, having be-
queathed the policy to D., who assigned it to
E., a solicitor (who acted in that transaction
for B.), by deed of the 4th of Feb. 1843, in
which D. covenanted that he had full power,
and lawful and absolute authority to execute the
assignment. The life insured died. E. having
received the amount of the policy, a bill was
filed against him by the children of A., and he
was obliged to compromise the suit by payment
of money. D. died, and a claim having been
made by E.’s executor against his assets, on
foot of the covenant for title, a cause petition
was filed to administer his estate. It stated that
E. was D.’s solicitor, and that it was his duty to
have limited the covenant to the acts of D.;
and that he was entitled to no greater benefit
than if he had only imposed the proper and
usual covenant on D.; but prayed no relief as
to that statement, and did not make E.’s exe-
cutrix a respondent. The usual order having
been made by the Lord Ch., under the 15th
648 Its

sec. of the Ch. Reg. Act (/r.), 1850 and E.’s
executrix having filed a charge on foot of the
covenant, which the Master disallowed, on the
ground that E. was D.’s attorney, and ought
not to have permitted him to enter into sucha
covenant—Held, on appeal, that the claim
under the covenant being a legal claim, the
Master had no jurisdiction to disallow it on
that ground without a cross petition.

Semble—Though E. had constructive notice
of the trusts of the deed of the Ist of Nov.
1827, such notice could not qualify or coutrol
the covenant for title.

D. having directed that any claim on foot
of any covenant should be paid out of a parti-
cular legacy, the legatees should be before the
Court.—£x parte Collins, 21. C. RB. 618. (R.)

1. A. Ry. Co. served a notice to treat for
the purchase of land. Persons in their em-
ployment, who were, or acted as if they were,
authorised to fix the price, obtained the land-
owner’s signature to a printed form of agree-
ment fixing the sum. Held, that the Co. were
bound to specifically perform this agreement,
though not signed by them under their corpo-
rate seal.

Semble—Had the price been ascertained by
parol only, after service of the notice to treat,
the contract would still have bound them.—
Smith v.D. §& Bray Ry. Co., 31. C.R. 225. (C.)

2. A., tenant for life, subject to old charges
affecting the inheritance, and having a general
power to charge £10,000 on the estate, paid off
the charges with a loan from B. and C., to
whom the charges were assigned; and by a
contemporaneous deed, in execution of his
power, charged the estate with £10,000, and
created a term to secure that sum to B. and
C. Power was given to B. and C. to raise the
charges and the £10,000, and apply the same
in payment of the principal, interest and costs
due on foot of the loan; and it was declared
that the moneys to arise from the sale of or by
virtue of the charges should be vested in B. and
C. in trust to pay the surplus to A. for his own
benefit. The deed contained aclause of redemp-
tion of the old charges and the £10,000thereby
appointed, on re-payment of the loan. After-
wards, in 1842, a judgment was obtained
against A.; and in 1844 he mortgaged his
equity of redemption in the charges and the
£10,000 to D., who had constructive notice of
the judgment. The lands having been sold in
the I. E. Court—Held, affirming the decision
of the Commissioners, that as to so much of
the fund as reprepresented the value of the
life estate of A., the judgment had priority
over D.’s mortgage of the charges.—ZIn re
Phillips, 41. C. R. 584. (P.C.)

3. In 1810, two judgments on a joint and
several bond, against D. and B., to secure
£2200, and in 1812 another judgment, to se-
cure £1000, against D., were entered up by X.,
as trustee for the Mayo Infirmary. In 1819, a
joint and several bond to secure £3200, the
sum for which the judments were obtained, was
executed by D. and B. to X., who gave warrants
to satisfy the judgments. In 1822 two deeds
were executed by D. and B.; by the first they

[NOTICE]

 

 

Effect.

conveyed lands to trustees, to sell with their
consent, or the consent of the survivor, and to
stand possessed of the purchase-money, on
trusts declared by the second deed, viz., to
apply the sum of £8275 as D. and B. should
appoint; in default of appointment, to pay the
sum of £3200 due to X., the trustee of the
Mayo Infirmary (a party to the deed in another
character) on a judgment against D. and B.,
his executors, &c. No sale washad. In 1826
D. died. In 1827 X. died, without entering
judgment on the bond of 1819, and before the
judgments of 1810 and 1812 were satisfied. In
1832, B. and the trustees of the deed of 1821
mortgaged to the plaintiffs, who had notice of
the deed of 1823, but not of the bond of 1819,
and who, without enquiring whether the £3200
had been paid to the Mayo Infirmary, merely
required the judgments of 1810 and 1812, which
they supposed to be the judgment referred to
by the deed of 1823, to be satisfied. Judgment
was entered on the bond of 1819 in 1838, and
assigned to A. (in trust for the Mayo In-
firmary), who, in a foreclosure suit instituted
by the plaintiff, proved the judgment, and was
by the final decree decreed to be paid in the
priority of 18388. Y., executor of X., who was
not a party to the suit, after the decree ob-
tained an order allowing him to prove his
claim under the deed of 1823, on the usual
terms of making up a report at his own ex-
pense. Held, on objections to the report
under that order that a trust was created
by the deed of 1823, in favour of X., under
which the £3200 was charged on the lands.
That the plaintiffs had notice that the £3200
was due to the Mayo Infirmary under the deed
of 1823; and, having neglected to enquire
whether it had been paid, could not ward off
the claim by reason of the inaccuracy in the
description of the security under which it arose.
That X. having executed the deed, though not
made a party thereto as trustee for the Mayo
Infirmary, the doctrine of Garrardv. Lord Lau-
derdale (3 Sim. 1) did not apply, and that he
might have enforced the trust created for him.
That Y. not having been a party to the suit,
the order of 1854 was right in permitting him
to come in and prove his demand, although it
was in substance for the same debt which had
been decreed to A.—[ Affirming Rolls decision,
41. C. RB. 470.J—Gurney v. Oranmore, 51. C. R.
436; 11. Jur. N. 8. 442. (C.)

4. A. seized of an estate tail in the lands
of S., &c., and of an estate in fee in K., &e.,
in 1794, by indenture reciting that he was
seized in fee of both denominations, conveyed
them to trustees to the use of himself for life,
remainder to his eldest son B. (who was then
born) for life, remainder to B.’s children suc-
cessively in tail, remainder to the sons of A.
successively in tail, remainder over; and
covenanted with the trustees that he was
seized in fee of all the lands, and for further
assurance. A. died leaving several sons, and
without barring the entail in S. and B. went
into possession of all the lands. In a suit
against B., to raise out of the land charges
created by A., B., by his answer, admitted
that A. had been seized in fee of all the lands.
Its

On the investigation of the title in contem-
plation of a sale in that suit, B.’s attention
was called to the existence of the entail, and
he soon afterwards executed a disentailing
deed. He also procured the discharge from
S. of a receiver who had been appointed over
it and K. in the suit, on the ground that by
reason of the entail S. was not, after the death
of A., subject to the charges. He continued
by himself or creditors in possession of all the
lands ; and part of the lands of K. having been
sold, he obtained payment of the income of a
surplus fund realised by them and lodged in
Court, claiming such income as tenant for life
under the settlement of 1794. He afterwards
mortgaged S., by a deed reciting the settlement,
&c., and which conveyed to the mortgagee B.’s
life estate in K., &c., under the settlement.
The persons entitled in remainder did not
interfere, although aware of nearly all these
proceedings. Held, that B. had conclusively
elected to take under the settlement of 1794,
and was bound to give effect to-it, and that
his mortgagee, having taken with notice, was
equally bound.

B. died without having children, and C.,
a minor and B.’s heir-at-law, became entitled
to the remainder after B.’s death, limited
by the settlement of 1794. B., by his will,
devised §., subject to charges, to trustees
for C. In a suit by one of the trustees
to carry out the trusts of B.’s will, C.,
having come of age, and having first desired
an issue as to B.’s competency, a decree was
afterwards made on consent that the trusts
of B.’s will should be carried into execution,
and that the usual consequential accounts
should be taken. C.soon after filed a peti-
tion, as owner, for the sale of S., to pay B.’s
charges; and, in a discharge filed in the
Master’s office in an administration suit, ad-
mitted that B. had been seized in fee of S.
He afterwards, by leave of the Master, filed a
fresh charge, alleging that B. had elected to
take under the settlement of 1794. Held,
that C. was not prevented by the decree or his
admissions from claiming S., &c., as bound by
the settlement of 1794.—Spread v. Morgan, 9
I. C. R. 585; Dr. Rep. temp. Napier, 525. (C.)
[Revd.. 11 H. L. Cas. 588.]

1. Y. devised all his property, in trust to pay
his debts, amongst which was a charge (secured
by mortgage, and judgment collateral) in favour
of his son, C., the petitioner’s father, who, in a
suit instituted in relation to Y.’s assets, was ap-
pointed receiver and manager of Y.’s personal
estate; and was authorised to proceed in the
executor’s name to render the assets available.

Under a subsequent consent order pre-
mises (of a mortgage affecting which Y. died
possessed) were sold to D., to whom they were
conveyed by a deed which alleged that, in
pursuance of provisions in the consent order,
the purchase-money (£750) was paid thus :—
£250 to the party entitled to the equity of
redemption in the premises; and £500 to C.

Afterwards C.’s wife instituted a suit to
compel the execution of the trusts of her
marriage settlement, whereby C. had assigned
(inter alia) the aforesaid charge, and the

[NOTICE.]

 

Effect. 649

securities for it, in trust for his wife for life ;
and, after her decease, for the issue of the
marriage. In this suit V. acted as her solicitor.

Afterwards other premises, part of Y.’s
assets, were mortgaged to another solicitor, P.,
to secure the repayment of £250 and interest,
and, subject to his demand, the equity of
redemption therein was at a later period con-
veyed to J., his heirs and assigns.

C. and his family emigrated. P. afterwards
presented a petition to administer J.’s real
and personal estates, and to enforce payment
of his own demand. Neither C., nor any
member of his family, was a party to this suit,
in which V. was P.’s solicitor.

After sale of (inter alia) the property mort-
gaged to P. he was paid the amount found to
be due to him by the Master’s order which
ascertained the amount, and declared that
there was not any other charge affecting the
premises. Upon this order of the Master the
Court’s order for payment was founded.

A younger child of C. presented both the
present petitions; and sought in the first to
compel P. to replace the sum so paid to him.

Held, that, under the circumstances of the
case, and particularly having regard to P.’s
position as an officer of the Court, and to the
fact of his having instituted the suit through
the intervention of V., he had notice of the
petitioner’s claims, and was bound to replace
the moneys so paid to him.

In the second suit the petitioner sought that
the sale to D. of the premises in Baggot-street,
as well as the sale of other premises which
also had been sold to him, might be set aside.

It was not shown that D. had ever paid (as
the conveyance to him alleged) to C. any
portion of the £500. But it appeared that C.
and D. had had mutual private dealings in
respect of which some settlement was alleged
to have taken place.

Held, that D.’s purchases could not be sus-
tained.— Walker v. Power, and Walker v.
Taylor, Dr. Rep. temp. Napier, 668. (C.)

2. A., upon his marriage in 1808, executed
marriage articles, whereby he covenanted with
trustees to provide, at his decease, £30,000 for
an eldest son of the marriage, and (if there
should be living at his decease children of
the marriage other than a son and daughter)
£20,000 for the younger children. He died
in 1821, seized of real and personal estate,
and leaving an eldest son and two daughters,
who instituted an administration suit in which
a receiver was appointed. Pending this suit
one of the daughters died. The eldest son
soon after coming of age, having become
indebted on his own personal account to B.,
and being entitled as heir or devisee to his
father’s real estate, mortgaged to B. the real
estate, to secure the debt. The deed of mort-
gage recited the articles, the pendency of the
suit, and the intention of the eldest son to
pay his sister. Held, that the claim of the
sister under the articles of 1808 had _ priority
as against the real estate of A. over the mort-
gage executed by A.’s eldest son.—[ Richardson
y. Horton (7 Beav. 112) disapproved of.J—
Hynes v. Redington, 10 I. C. R. 206. (C.)

82
650 Effect of

1. A. demised landsto B., with at.q. covenant
for renewal on payment of a renewal fine. B.
demised on like terms to C., D., E., F., and G.
C. conveyed his share of the lands on trust
to secure a jointure for his wife. D. was a
creditor of C.; went into possession of C.’s
share, with notice of the settlement; and
while he was so in possession, a large arrear
of rent and renewal fines accrued due from B.
to A., and the lands were distrained for the
rent. D. thereupon purchased A.’s interest,
took a conveyance to a trustee for himself,
served a notice on B. and the under-tenants
to pay the rent and fines, and, on non-payment,
brought an ejectment in the name of his
trustee, and recovered possession of the lands.
Held, that the lands were subject to the join-
ture, notwithstanding the eviction.

Though fraud be charged, and not proved,
if, on the facts stated and proved, without
reference to the charges of fraud, a right to
relief is established, the Court ought not to
dismiss the petitionLombard v. Hickson, 13
I. C.R. 98. (R.)—Affirmed: ibid, 583. (C. A.)
[Reversed: L. R. 1 H. L. 324.]

2. A., having made for lives and years a
lease, dated the 18th of Oct. 1852, of part of
the lands of B., by a deed, purporting to be
for value, dated the 16th of Jan. 1853, con-
veyed the inheritance in remainder expectant
on his own decease to his son, F. This deed
was registered two days after. The lease was
not registered until the 25th of May 1854. F.
had notice of the lease at the time of the
execution of the deed of 1853. By deed of
the 16th of Nov. 1857, F. mortgaged his re-
version to L., who had not notice of the lease.
Held, that, whether the deed of the 16th of
Jan. 1853 was a voluntary deed, or a deed for
value, L.’s mortgage was entitled to priority
over the lease of 1852; and that his title was
not affected by the intermediate registration
of the lease.

But that, as it appeared on the evidence
before the Court that the lease was bona fide
for a proper period, and at a fair rent, and as
the sale would not be materially affected by
it, the sale should be made subject to it, and
that it should not be set aside for a slight dif-
ference between the rent and the value.

If the Court is constrained to set aside a
bona fide lease, it will reserve to the lessee the
right to apply for compensation, as against
any interest remaining in the lessor.—Jn re
Floods Estate, 13 I. C. R. 812. (L.E.C.)

8. A., a solicitor, mortgaged to B. lands, on
March 20th 1856. By agreement, the deed
was not registered till April 3rd 1859. A lease
on fine of the lands was made by A., on March
7th 1859, to C., and registered on March 16th
in that year. In this last transaction, A. drew
the lease, and registered it, and was paid costs
out of pocket by C., who employed no other
solicitor. Held, that A. was C.’s solicitor.

That the Court felt itself constrained by
the decisions to treat C., as affected with no-
tice of the mortgage, through A., as his soli-
citor, and to postpone the lease to that mort-
gage.—In re Rorke’s Estate, 13 I. C. R. 273; 8

[NOTICE. ]

 

Its Want.

I. Jur. N.S. 53. (L.E.C.)—[Affirmed: 14 I.
C. R. 442; 81. Jur. N.S. 245. (C.A.)]

4, A., tenant in tail in possession, executed
a disentailing deed, not for value, which was
enrolled after his death, and within six months
from its execution. B., entitled in remainder,
expectant on the determination of A.’s estate
tail, executed a disentailing deed for value
subsequently to A.’s deed, which was enrolled
before A.’s deed. Both B. and B.’s grantees
had express notice of A.’s deed. Held, that
the enrolment of A.’s deed was good, although
made after his death. But that, whether B.
was entitled in fee or in tail, B.’s deed being
made to a purchaser for value, and being first
enrolled under the 74th sec. of 3& 4 W. 4, ¢.
74, avoided A.’s deed, and notice was imma-
terial.

That the 38th and 74th secs. of the 3&4 W.
4,¢. 74, are not in pari materia; that the 38th
sec. applies to dispositions by the same tenant
in tail, while the 74th applies to dispositions
by successive tenants in tail.—ZIn re Piers’ Es-
tate, 18 I. C.R. 459; 8 I. Jur. N. 8.76. (dL.
E.C.)\—[Affirmed: 14 I. C. R. 452; 8 I. Jur.
N.S. 401. (C.A.)

5. X., devised the interest in a lease for a
term of years to A. and B., subject to charges
thereby created; and appointed A. and C.
his executors. <A. and B. subsequently exe-
cuted to D. a mortgage of the demised pre-
mises, but did not produce the original lease,
or deduce their title to it; the mortgage deed
merely reciting that the premises had been
demised to X., and were “now vested in A.
and B., or one of them,” for the residue of a
term of years; and no mention being made
of X.’s will, under which A. and B. derived,
or of the charges thereby created. Held, that
the mortgagee had been guilty of gross negli-
gence in not requiring the deduction of the
mortgagor’s title from X.; and was, there-
fore, affected with constructive notice of the
charges created by X.’s will—Re Oldens, 9 I.
Jur.N.8.1. (C.A.)

 

II. 2. Errect or Want or Notice.

6. The conuzee of a judgment, who had pro-
ceeded thereon to outlawry, and obtained a
grant of the conuzor’s lands in custodiam, after-
wards, without the conuzor’s knowledge, as-
signed the judgment under the statute. The
assignee had notice of the custodiam proceed-
ings, but did not give the conuzor notice of the
assignment. Held, that he must give the conu-
zor credit for sums received by the conuzee
after the assignment out of the rents of the
lands held in custodiam. The assignee of a judg-
ment should require the conuzor to join, or
should give him notice.—Ferrall v. Boyle, 11.
E.R. 391. (C.)—[Affd.: 12 Cl. & F. 740.)

7. On treaty for a mortgage, one entitled to
be recouped out of the estate, if a certain
incumbrance was levied out of his own estate,
communicated with the mortgagee with re-
ference to the mortgage; but did not inform
him of his equitable claim. Held, that he
Want of.

could not afterwards set it up against him.—

en v. Belton, 81. E.R. 113; 1 Jon. & L. 730.

1. A bill by a judgment creditor to have
the benefit of a renewal to A., and set aside a
sub-lease to B., who sold to the defendant X.
stated circumstances of express notice to A.
and B. ‘The bill was taken as confessed
against A.and B. The defendant X. denied
notice to him, and it was not proved. Held,
that there could not be a decree against him.—
Kelly v. Magee, 11 1. E. R. 383. (C.)

2. A judgment, registered as a mortgage
under the 13 & 14 Vic., ¢. 29, is entitled to
priority over a prior unregistered instrument
of which the conuzee has not had notice.—In
re Hamilton, 9I.C. R. 512. (C.A.)

3. A sub-tenant of a College lease for 14
years, with az. g. covenant for renewal, demised
for 14 years, with a like covenant, by an un-
registered deed, and afterwards assigned his
interest to a purchaser for value, by a regis-
tered deed. Held, that the purchaser having
no notice of the unregistered deed, was not
bound by the covenant to renew, as it was not
a lease within the 14th sec. of the Registry
Act (6 Anne, c. 2, Zr.), which declares that the
Act shall not extend to leases not exceeding
21 years, when the possession goes with the
lease.— Clarke v. Armstrong, 10 I. C. R. 263; 5
I. Jur. N.S. 89. (R.)

4. B., by deed, in 1828, for a nominal con-
sideration, assigned a policy of insurance
upon his own life, to trustees for his children,
of whom the petitioner was one. The entire
interest in the policy vested in S. and the
petitioner. No notice of this deed was ever
given to the Insurance Co. §. married the
respondent; and by deed, reciting that she
was entitled to one moiety of the policy, that
moiety was then put in settlement. After-
wards B., by deed made without considera-
tion, professed to assign the residue of the
policy to the respondent; and stated that he
had led the petitioner to believe that he would
be entitled to £100 out of the proceeds, and
that the petitioner ought to be made one of
the granting parties. The petitioner declined
to execute the deed; but did not, during the
whole of B.’s life, allege that he had any claim
on the produce of the policy. B. executed
the assignment to the respondent, who gave
the Co. notice of the assignment; paid the
premiums during B.’s life ; and was not proved
to have had any knowledge of the petitioner's
rights. Held, that the petitioner was pre-
cluded by his own conduct from enforcing his
claim upon the produce of the policy. ‘

Semble—That the rule giving priority to that
assignee of a chose in action who first gives to
the debtor notice of his claim, applies between
volunteers as well as between assignees for
value.—Justice v. Wynne, 101. C. R. 489. (C.)—
[Reversed : 12 I. C. R. 289; 61. Jur. N.S. 51.
(C.A.)]

5. S., being largely indebted to B. and other
persons, agreed with B. for a further advance

[NOTICE.]

 

When necessary. 651

on a mortgage of various estates in Ireland.
By the deed of mortgage, S. covenanted that
the lands of K., which formed part of the
security, were free from incumbrances, and
for further assurance. No title was furnished
by S., nor-search in the Registry in Ireland
made by B. Before the entire advance was
paid over to S. it was discovered that K. was
subject to a mortgage to E. B. thereupon
applied to S., who told him that E. would
release the lands on his (S.’s) request. On
that assurance B. paid the residue of the
loan to 8. S. subsequently by fraud procured
a release from E., of which release B. was
made aware, but was ignorant of the fraud.
The fraud was discovered after some months
had elapsed. Held, that B. was a purchaser
for value of the release, as having been pro-
cured by S. in pursuance of the covenants in
the mortgage deed; and that, being ignorant
of §.’s fraud, he was entitled to retain the
advantage which the release had given him.—
In re Burmester, 111. C.R.1; 51. Jur. N.S.
349. (C.A.)

6. Lands were conveyed by a registered
deed to a purchaser, subject to “existing
leases and lettings made to the under-tenants”
of the vendor. Held, that a partly performed
parol contract for a lease, of which the pur-
chaser had no notice, was not an existing
lease, or letting, within the meaning of the
deed.

Semble—A contract by the vendor, duly
signed according to the Statute of Frauds,
would be an existing lease or letting within
the meaning of the deed, and binding on the
purchaser. In a suit for specific performance
of a contract relating to lands, the documents
relied on to prove the contract must be put
in issue specifically by the petition.

Semble—Part performance of a contract is
not binding on a purchaser for value without
notice.—Rice v. O’Connor, 11 I. C. R. 510.
(R.)—[Reversed: 12 I. C. R. 424; 71. Jur.
N.S. 109. (C.A.)]

 

III. Wuen Noticr 1S NECESSARY.

7, An application for an attachment against
a party for not executing the purchase deed
pursuant to the decree, should be on notice,
and the order will be absolute in the first
instance.—Brennan v. Carroll, 7 I. E. R. 196.

&.)

8. The Court will not allow a deed to be
taken out of the Master’s Office to prove it in
the cause, without notice to the parties.—
Wyse v. W., 41. Jur. 100. (R.)

9. Except in very plain cases, a cause peti-
tion under the Ch. Reg. Act (/r.), 1850, cannot
be amended, without notice to those respon-
dents who have entered appearances.— O’ Brien
y. Tredennick, 41. Jur. 185. (R.)

10. A receiver, appointed under the Sheriffs
Act, and afterwards extended to a cause, set
a portion of the lands over which he was
receiver, to a tenant from year to year; the
652

lands to be used solely for grazing. By a con-
sent entered into by all the parties to the
cause and matter, and made a rule of Court,
the receiver was discharged; and the respon-
dent permitted to go into possession. The
order made on the consent motion was served
upon the tenant, who was called upon to give
up possession to the respondent. Upon aner
parte application for an injunction to obtain
possession, Held, that the former practice of
the Court of Eq. Ex. would not be adhered
to; but that such a motion should be made
only upon notice to the tenant.—Campbell v.
Browne, 51. Jur. 88. (R.)

 

NUDUM PACTUM.

1. The respondent owing the petitioner
£625, secured by a judgment, wrote to him as
follows :—“ You having a judgment against
me, I undertake that if I do not pay the sum
secured thereby on or before the 10th of Oct.
1852, I will give you a legal mortgage on all
my landed property.” The petitioner before
that day filed a petition in the I. E. Court to
raise the amount of the judgment. He after-
wards filed the petition in this cause, for
specific performance of the agreement to grant
a mortgage. Held, either that the above docu-
ment did not disclose any eonsideration, and
was consequently invalid within the Statute
of Frauds ; or that, if there were any implied
consideration, it had failed.

An antecedent debt is not, in contemplation
of a Court of Equity, consideration for an
agreement to mortgage.—Crofts v. Feuge, 4 I.
C. R. 316; 61. Jur. 160. (C.)

 

NUISANCE.
See Practicz, Insuncrion, 17.

 

NULLUM TEMPUS ACT.

See 9 G.3, v.16; 2&3 W.4, ce. 77, 100;
4&5 W.4, c. 83.

 

NUMEROUS PARTIES INTERESTED.
See Przapine, Partizs, 17.

 

NUN.
See Crvit Deatu.

 

NUNCUPATIVE WILL.
See Wit, IX.

 

OBJECTS.
— Of Donor in Charity, See Cuartry, II, 3.

 

OBLIGOR AND OBLIGEE.

See Bonp, IV—Deeps, X —PueEapine,
Parties, 6.

[NUDUM PACTUM.—OFFICERS.]

OFFER.

— To Pay just Demands. See Pieavine,
Bri1, 2. b.

 

OFFICIAL ASSIGNEE.
See Bankruptcy, IX.*

 

OFFICERS AND OFFICES.

— Public. See Assignment—Practice, Orri-
CERS OF Court.

 

OFFICERS OF COURT.
— Actions by and against. See JuRsvIcTION,
Il

_— Generally.
Court.

2. A solicitor is eligible for the office of
Commissioner Extraordinary, but will not be
preferred if another competent person be
found.—Anon., 2 I. Jur. 185. (C.)—[See 80 &
31 Vic., c. 44, ss. 75, 76, 78.]

See Practice, OFFICERS OF

 

OMISSION.
See LAcuEs.

 

ONUS PROBANDI.
See Practicz, Evivencs, V.

 

OPENING.
— Fiat. See Banxrurtcy, VI.-
— Foreclosure. See Morteacs, VI.

— Bidding. See Practice, Saves JupIcray.

 

OPINION.

— Of Judges, Case sent for.
Issuz at Law.
— Of Counsel. See BarRIsTER.

See Practicr,

 

ORDERS.

— Generally. See Practice, ORDER.

— For Payment. See Practicr, Payment,
ORDER FOR. :

— To Amend, without prejudice. to Injunction.
See Practice, InsuncrTion.

— For Payment of Debts. See Payment, XI.

 

ORDER AND DISPOSITION.
See Bankruptcy, IX, 7.

 

ORDINARY.
See EccrestasticaL Persons.

 

ORE TENUS.
— Demurrer.

 

See Practice, Demurrer, 8.
-{PAPISTS.—PARENT AND CHILD.}

ORIGINAL BILL, IN THE NATURE OF
A BILL OF REVIVOR.

See Piuavine, Brit, 6.

 

ORPHAN AND ORPHANAGE SHARE.

 

OUTSTANDING.
— Terms. See Practicr, Insuncrion, 16.

 

OVER-RULING.

— Exceptions. See Practicr, ANSWER.

— Exceptions to a Master’s Report. See Prac-
TICE, MasTER, REFERENCE TO.

— Demurrer. See Practice, DEMURRER.

— Pleading. See Practicz, Piga.

 

OVERT, MARKET.
See Market.

 

PALATINE COURT.
See Courts, III.

 

,

PAPISTS.
See Sratures, II, 36—Crvit Deatu.

J. Tuer DisaBILitieEs—HOW REMOVED.
II. Tuer PROPERTY.

 

I. Tuerr DisaBILitins: HOW REMOVED.

1. The Court granted « receiver on a bill
filed to raise arrears of an annuity granted to
a lady who afterwards became a nun: the
law touching civil death having ceased at the
Reformation, and not having been revived by
the 10 G. 4, ¢. 7—Evans v. Cassidy, 11 I. E.
R. 243. (R.)

 

I. Torr PRorerty.

 

PARAPHERNALIA.
See Huspanp anp Wire, V, 4. f.

PARENT AND CHILD.

See ADVANCEMENT—GUARDIAN AND Warp—
InFraNT—JURISDICTION, X, 2.

I. Toerr Revative anp ReEcrpRocaL
Ricuts anp DovTIzs.

Il. ADVANCEMENT OF CHILD BY PARENT.

1. In general — Effect of, respecting
owers of Appointment.
2. Purchases in the name of, and Con-
veyances to Child.
TI. Maintenance.
IV. Tus Pecuriar Incipents oF THE REva-
TIONSHIP.

1

 

653

V. DEALINGS AND TRANSACTIONS BETWEEN ;
HOW FAR VALID.
VI. Parties 1n Loco PasRrENTIS.

 

I. Revative anp Reciprocat RicHTs AND
Dourres oF Parent AND CHILD.

2. When children are in their mother’s cus-
tody— Semble, the 2 & 3 Vic., c. 54, does not
enable her to resist their father’s right to have
them delivered over to him.—Corsellis v. C., 1
Dr. & War. 235. (C.)

3. A father has a right to direct and regu-
late the religious faith in which his child shall"
be brought up. The Court will not interfere
with that right unless there is an abuse of
parental authority.

To insist on bringing up the child in his
own religion, notwithstanding a verbal agree-
ment to the contrary, entered into before
marriage with his wife, is not an abuse of
parental authority which will induce the
Court to interfere.

Testamentary guardians appointed by the
father have the same right to direct the reli-
gious education of « child according to the
father’s wishes. -

A contract entered into before marriage,
that the children shall be brought up in a
particular religion, is not binding on the hus-
band, and cannot be enforced in a Court of
Equity.

Semble—Such a contract (if binding) must
be in writing, and cannot be enforced in a
minor matter with a cause petition.—Jn re
Browne, 21. C. R.151. (R.)

 

TI. Curip’s ADVANCEMENT BY PARENT.

1. Generally : its Effect respecting Powers
of Appointment.

2. Purchases in the name of, and Convey-
ance to Child.

 

IL. 1. Child’s Advancement by its Parent, gene-

rally; Effect respecting Powers of Ap-
pointment.

4, When a power is given to appoint a fund
among children as their parent shall direct,
and the parent, out of his own funds, advances
one child a portion equal to its share of the
fund ; in default of appointment, the effect is
to increase the other children’s shares, not to
make that child’s share part of the parent’s
assets.— Brownlow v. Earl of Meath, 21. E. R.
383; 2 Dr. & Wal. 674. (C.)

 

II. 2. Purchases in the name of, and Conveyance
to Child.

5. A deed of conveyance by a father, C., to
his son, D., was executed by both, but was
kept by C. alone, and was found among his
papers after his death. C., being an attorney,
registered it nine months after its date. D.
and he lived on good terms. C. received the
rents, and alone made new leases, of which
D. was cognisant, and to which he assented.
D. occasionally received from the tenants
654

Maintenance.

money, for which C. made allowance of credit.
C. gave a power of attorney to third persons
to collect the rents. Held, that, since the
deed originally was an advancement, none of
those circumstances affected D.’s title; and
that it was not inoperative, either as a secret
conveyance, or as creating by implication a
trust for C.—Alleyne v. A., 8 I. E. R. 493; 2
Jon. & L. 544. (C.)

 

TIT. Maintenance.

1, A fund was vested in trust to pay the
interest to one for life, and after her death to
‘her children. The Court refused, even with
the consent of the mother, to advance any
part of the principal for the maintenance of
the minor, the consent being in another re-
spect objectionable.— Walker v. W., 11 I. E.
R. 829. (R.)

 

IV. THe PecuiarR INCIDENTS OF THE
RELATIONSHIP.

 

V. DEALINGS BETWEEN PARENT AND CHILD:
HOW FAR VALID.

2. If a father, tenant for life, takes advan-
tage of the necessities of his son, tenant in
tail, to draw him in to join in any conveyance
which would destroy his remainder, this Court,
upon very slender evidence thereof, would re-
lieve the son.— Wallace v. W., 2 Dr. & War.
452; 1Con.& L. 491. (C.)

3. By marriage settlement of 1780, lands
were settled on the husband, C., for life; re-
mainder to the use of all and every, or such
one or more of the children of the marriage,
for such estate, not exceeding an estate in
tail male, as C. should appoint; in default of
appointment, to the first and other sons of the
marriage in tail male. By deed poll, dated
14th Jan. 1804, C. appointed the lands to his
eldest son, D., in tail male; and, on the 18th
Jan. 1804, C. and D. demised part of those
lands for lives renewable for ever, in con-
sideration of £1600 therein stated to be
applied in paying debts, affecting C.’s estate,
and renewal fines then due. By deed in 1807,
D., in consideration of debts paid for him by
C.,and in discharge of the trust and confidence
reposed in him, conveyed the settled lands,
and all his interest therein, to C., his heirs
and assigns. In 1815 D. died intestate and
without issue. C. survived; and in 1821 de-
vised the lands, charged with legacies, to the
use of his two surviving sons, and their re-
spective issue, in equal portions, as tenants in
common. In 1822C.died. In 1836 ptf., the
third son, filed his bill to carry into execution
the trusts of that will. The House of Lords
reversed the decree below; and declared that,
before any adjudication could be given on C.’s
title to dispose of the lands, an enquiry into
the validity of the appointment must be insti-
tuted. The Master reported that, when the
the appointment and lease were executed,
judgments to the amount of £2400 appeared
on record against C; that they were all satis-

[PARENT AND CHILD,]

 

Dealings between.

fied on a day after the lease was executed, but
that he was unable to state how the considera-
tion money for the lease had been applied, no
evidence thereof having been laid before him,
save so far as the statements relating thereto
in the deeds of 1804 and 1807, and the facts
relating to the judgments, might be deemed
evidence. The cause came on to be heard on
the report. Held, that those deeds were fraud-
ulent and void, as constituting a dealing by
C. for his own benefit, not for D.’s ; and should
therefore be set aside.

Semble—C.’s will could not be supported as
an execution of the power of appointment.

Supposing that the appointment of 1804
failed: Qucere—What was the operation of the
deed of 1807? How far was the power affected
by the union of the two estates in C.?—Jackson
v.J., Dr. Rep. temp. Sugden, 91. (C.)

4. A father, tenant for life, with power to
appoint to children, joined his eldest son in a
fine and recovery, and conveyed to a purchaser.
The father received the whole purchase-money.
Held, that the son’s interest in the land at the
date of the conveyance, but not that after-
wards acquired, was bound by his assent to
the conveyance. — Thompson v. Simpson, 8 I.
E. R. 55; 2 Jon. & L. 110. (C.)—[See 1 Dr.
& War. 459. (C.)]

VI. Parties In Loco PaREnNTISs.

 

PARISH—PARISHIONERS—PARISH
RATES.

 

PARLIAMENT.

See MEMBERS OF PaRLIAMENT—BANKRUPTCY,
7 IV. 2. b—Prerrs.

 

PAROL.

See AGREEMENT, [V—Inrant, II. 3—Prac-
tick, Evipence, IV.

 

PARSONS.
See EccLEsIAsTICAL PERSONS.

 

PARTIAL EXECUTION OF POWER.
See Power, I. 8.

 

PARTICEPS CRIMINIS.
See ILLEGAL TRANSACTIONS.

5. A party to a fund cannot file a bill
against his accomplice, to prevent him from
taking more than his share of the spoil; for
the Court will not interfere to enforce honour
among thieves. — Hamilton v. Ball, 2 I. E. R.
191. (C.)

¥
[PARTIES.—PARTITION.]

PARTICULARS OF SALE.

See AUCTION — Practics, Sate Jupicia, —
VENDOR aND PurcHasEr.

 

PARTIES.
See Preapvine, V—Marriep Woman—Hvs-
BAND AND WIPE.
— Production of Parties. See Practice, Pro-
DUCTION OF Partizs.
— To Suit generally. See Preapine, Parrizs.
— Pleaof Want of. See Prvapine, Puna.
— To Deeds. See Duxzp, X.
— To Fines and Recoveries. See Frxus, IV.
— Heir, when a necessary Party. See Wetr, II.
— To Contribute. See Contripotion, I.
— When Debtor to an Estate must be made a

Party to a suit. See Depron anp
Crepirtor, II.

 

PARTIES ABROAD.

1, When a judgment creditor out of the
. jurisdiction has been served with subpoena and
notice under G. Os. 15, 22, and the memoran-
dum has been entered under G. O. 16, it is not
necessary to enter a parliamentary appear-
ance, and take the bill pro confesso against the
party, in order to bind him by the proceedings.
—Burroughs v. Molloy,7 1. E.R. 6. (R.)

 

PARTITION.

See Estate, VII. 83—Practicz, Commission
oF PaRrtirion.

— Bill for. See Praticr, Brix.

'— Costs of. See Practicn, Costs, 10.

2. Upon a partition under a decree, premises
were allotted to the defendant, who was
awarded to pay to the plaintiff a2 sum for
owelty of partition. Held, that the plaintiff
was entitled to interest on the sum from the
confirmation of the return until paid; the
defendants being entitled to the rents from
that period. — Stewart v. Ferguson, 5 I. E. R.
157. (E.E.)

3. In 1809 8. died in possession of a fee-
simple estate, intestate, and leaving one sister,
B., and four nieces (daughters of another sis-
ter), his co-heiresses.

In 1810, B., in her own name and in the
names of her nieces, brought an ejectment on
the title to recover the estate. The lessors of
the plaintiff succeeding in the action, B. ob-
tained possession of the entire estate; and so
continued until her death in 1827, when her
only child (wife of the principal defendant),
and her husband, went into possession.

In 1828, an ejectment on the title was
brought on behalf of the four nieces to recover
a moiety of the estate. Defence was taken to
this action, but no further proceedings were
had.

In 1834, the same parties brought a new
ejectment. The defendants pleaded that S.
and the mother of his four nieces were ille-
gitimate ; secondly, the Statute of Limitations.

 

655

The lessors of the plaintiff recovered a ver-
dict which, as to one-fourth, was set aside on
the ground, that, as to that one-fourth, a party,
in whose name a demise in the action should
have been laid, had been omitted.

In 1837, an ejectment for this one-fourth
was brought in the name of the omitted party.
The lessor of the plaintiff recovered a verdict,
which was set aside, because of the Judge’s
misdirection upon the question of adverse
possession.

In 1839, a third ejectment was brought.
The lessor of the plaintiff again obtained a
verdict which the Court of Exchequer upheld.

Upon a bill filed on the part of some of the
nieces, for a partition—/Held, that, having
regard to all the circumstances of the case,
neither the question of illegitimacy, nor that
of adverse possession, could be considered as
open to the defendants; and that the plain-
tiffs were entitled to a decree for partition.—
O'Sullivan v. M'Sweeny, Dr. Rep. temp. Sug.
213. (C.)

4, The bill stated that the lands of B., part
of which contained 159 acres, and part 46
acres, had been for many years previous to
1794 held by the same tenants, so that the
boundaries became confused. That in 1804
A. was seized in fee of the 159 acres, and held
the 46 acres under a lease from X. for a term.
That the mearings and boundaries of the 46
acres had not since been ascertained, the
entire of the lands having been since the lease,
as they had been for 100 years before, held by
the same persons, whowere owners of the fee-
simple lands. That they had been so mixed
up, that it was impossible to discover the
boundaries or to ascertain where the 46 acres
were situated. The bill, after deducing the
title of the plaintiff from A., stated that the
defendant claimed to be entitled to the 46
acres as assignee of X., and that the plaintiffs’
interest under the lease had determined ; and
prayed a partition, or a commission to ascer-
tain the boundaries. Held, on demurrer, that it
could not be sustained for a partition, as no
title to a partition at law was shown ; nor as a
bill to ascertain boundaries, as the parties
were independent proprietors, the inference
being that the defendant was in possession of
the 46 acres, and that the owner of the fee-
simple lands, and not the defendant, was re-
sponsible for the confusion of boundaries.

A partition will be decreed in Equity only
where the plaintiff would be entitled to a par-
tition at Law.

Confusion of boundaries, unless it arose
from the defendant’s misconduct, is not per se
a ground for a bill to ascertain boundaries.—
O’ Hara y. Strange, 111. E. R. 262. (R.)

5. In a partition suit each party bears his
own costs of suit—that is to say, the costs up to
the first hearing. The costs of issuing, execu-
ting, and confirming the commission, including
the costs of the second hearing, and of the
mutual conveyances, are borne by the parties
in the proportion of their interests.

After obtaining the first decree and the
partial execution of the writ of partition and
656

commission of perambulation in the original
suit, it became necessary to file a supplemen-
tal bill. Held, that the costs of the supple-
mental suit should follow the same rule as the
costs of the original suit; and that each party
should bear his own costs up to the first hear-
ing of the supplemental suit.

The costs of suit of a bond creditor having
a charge on one undivided share borne by the
debtor, his counsel so agreeing, the Court
doubting whether they should not be borne by
the plaintiff.

Where the owner of an undivided share
made leases of undivided portions of his share,
and both lessor and lessees were made defend-
ants to a partition suit ; but no commissioners
on behalf of the lessees were nominated, nor
did they take any part in the subsequent pro-
ceedings—Held, that they ought not to con-
tribute to the costs of the commission.

That those lessees were not entitled, as
against the lessor, to their costs of suit.—
Herbert v. Hedges, 101. E. R. 479. (E.E.)

1. A., being possessed of land, presented a
petition under the 5 G. 2, c.9 (Jr.), to ascertain
the boundaries of an adjoining bog to which
his title was disputed by the respondent. The
Court would not dismiss the petition, but re-
tained it till the petitioner established his
right at law.

Semble—Though no jurisdiction be given
the Court by the statute under which the pro-
ceedings are taken, to direct an issue, or an
enquiry as to the facts, yet the Court, to
satisfy itself, will exercise its inherent powers
by either of those methods.—Lahiffe v. Gregory,
41. Jur. 97. (C.)

2. A cause petition was presented for the
partion of a house and lands. The respond-
ent not having appeared, an order was made
for the partition, in the proportion of five-
eighths to the petitioner, and three-eighths to
the respondent ; and to “ divide into two equal
parts the dwelling-house, offices, kitchen gar-
den, lawn, orchard, and plantations,” and one
part thereof to allot to the petitioner, and the
other part to the respondent. The two com-
missioners agreed upon leaving the house
quarter (including the dwelling-house, offices,
kitchen garden, lawn, orchards, and planta-
tions) equal to two-eighths of the entire; and
divided the rest of the lands into six equal
parts. The commissioner for the respondent
then insisted upon having the entire of the
house quarter included in the respondent’s
share. The other commissioner insisted on
having the House division, offices, kitchen
garden, orchard and plantation, divided, pur-
suant to the order ; and in the presence of the
otherrespondent’s commissioner and of the re-
spondent, cast lots upon them and upon the
other six lots, and allotted them accordingly,
and made a return exactly in the terms of the
order of partition, but which the other com-
missioner refused to sign. Held, upon a motion
for an attachment against the latter commis-
sioner for disobeying the order of the Court,
that the motion should stand over, in order
that the respondent should have liberty to

 

[PARTITION.]

apply for a re-hearing of the petition in Chan-
cery, as the commissioners ought to have had
power to allot the entire house to one, and a
compensation in land to the other.—Foster v.
Higgins, 6 1 Jur. 408. (R.)

3. A., seized in fee of lands, demised an
undivided moiety of the whole of the lands to
B. for three lives, with a covenant for perpe-
tual renewal. C., deriving under A., presented
her petition for a partition of the lands. Held,
that she had no equity to maintain a suit
against the tenant, or those claiming under
him, for a partition of the lands demised.—
Tottenham v. Molony, 21. Jur. N. 8. 88. (C.)

4. J. obtained a grant, by patent, of 111 acres
profitable land in M., with all pasture, tur-
bary, bogs, and mountains, to the premises be-
longing, or in anywise appertaining. K. and F.
obtained similar grants of lands in M. B.
obtained a subsequent grant of “ one-fourth
of land in M., containing 134 acres profitable
land, and also a parcel of bog in common
unto the above lands called C., containing 236
acres.”

The lands of C. had been immemorially
used for pasture and turbary by the tenants
of all portions of M. Held, on petition for par-
tition, that the representatives, of J., of K., of
F., and of M., were tenants.in common of C.

Quere—Whether the Book of Distributions
is admissible in evidence?

Decree for partition, with reference to the
Master to settle shares—Knozx v. Mayo, 9 I.
Cc. R. 192. (C.A.)—[Affirming decision: 7
I. C. R. 563. (C.)]

5. In a partition suit, to which minors are
parties, they may be declared trustees of the
portions not allotted to them, and their pro-
portion of the costs declared a charge upon
the estate of the minors in the land.

Form of order in such a case.—St. Leger v.
Ferguson, 10 I. C. R. 488. (C.)

6. In a partition suit, the shares of the
parties being very minute and complicated,
the Court, to save expense, instead of direct-
ing mutual conveyances, declared each party
trustee as to the shares allotted to the others;
and then vested the whole trust estate in one
new trustee under the Trustee Act, with direc-
tions to convey to each party his allotted share.
—Boyce v. Woodroffe, 5 I. Jur. N. 8. 57. (C.)

7. When lands, forming the subject of a
proposed partition, are held by different te-
nures, or under several leases, each estate
must be separately partitioned. The Court
will not sanction a partition which gives the
freehold lands to one owner, and the leaseholds
to another. Each owner must receive a por-
tion of each estate.

In the partition of leaseholds the Court will _
not allow one lease to be given to one owner,
and another lease to the other owner. Each
lease must be partitioned separately. The
Court will not allow the entire rent reserved
by a lease to be thrown on a single owner.
[PARTNERS.—PARTNERSHIP.]

These tules apply equally to a partition by
consent, without a sale by the Court, under
sec. 81; as to a partition under sec. 80, when
the petition prays for a partition and sale—
In re Foley’s Estate, 71. Jur. N. §. 402. (L.E.C.)

1. The commissioners’ return to a writ of
partition varied somewhat from the Master’s
report, and made no provision for an allot-
ment to an owner in possession of portion
purchased by him pendente lite. The other
owners not objecting to the allotment made
to them, and no misconduct on the commis-
sioners’ part being proved, the Court refused
to set aside the return. —Fitzgerald v. Massy,
8I. Jur. N.S. 229. (R.)

 

PARTNERS AND PARTNERSHIPS.

See Account—Banxnrvrrcy, VI, 13—ILLEGay
TRANSACTIONS—PLEADING, Parrigs, 18
—Practicz, ParmMent into Court, 5—
Practice, Recerver, 2, h—Soricrror,

I.—PartversHip — HOw CoNsTITUTED—
Irs Duration AND DETERMINATION.
Il—Articues or PARTNERSHIP: THEIR
Construction, &¢.
IIJ.—Disso.tution or PARTNERSHIP.
IV.—PartnersHip PRorerty or AsseTs—
Wuat COoNSTITUTES ITS GENERAL
IncipEnts—How FAR LIABLE TO
SEPARATE CREDITORS.
V.—BaNKRUPICY OF ONE OR MORE OF A
Firm—Its IncipEnts.
VI.—PaARTNERS GENERALLY.
VII.—How Bound By EACH OTHER’s AcTs.
VIIL—How Discuarcep— AGREEMENT TO
Accept as DEBTORS, PART OF A
FirM IN LIEU OF ALL.
IX.—SurvVIVORSHIP BETWEEN.
X.—Dormant Partners.
XI.—Or tue Generat Ricuts anp Lien
OF PARTNERS AGAINST EACH OTHER
—Or Suits By, BETWEEN, OR
AGAINST PARTNERS.

[Statutes: see The Companies Act, 1862 (25
& 26 Vic., c. 89); Industrial and Provident
Societies Act, 1862 (25 & 26 Vic., c. 87); The
Companies Act, 1867 (80 & 31 Vic., c. 131.)]

 

I. PartTNERSHIP: HOW CONSTITUTED: ITS
Duration AND DETERMINATION.

2. A. agreed to sell his shares in a Joint-
stock Bank to B., at par, the shares to be
transferred by A. to C., who was to hold them
as trustee for B.; but charged with the pur-
chase-money, and interest at £5 per cent.,
payable half-yearly, until the principal was
fully paid. C. agreed to hold the shares upon
those trusts. The shares afterwards were
transferred by A. to C. by deed. The deed of
settlement required a notice of all proposed
transfers to be left at the office of the directors.
This notice was not left. The assignment not
having been registered, A. received the first
dividend after the transfer; and, after paying
the interest of the purchase-money of the

 

657

shares, retained the surplus on account of
another debt due to him by B. A subsequent
dividend was received by C., and paid by him
to A., who appropriated it as he had done
the former dividend. Held, that A. still con-
tinued owner of the shares, and was properly
included in the list of contributories.

Semble—Non-compliance with the formal
conditions, required by the deed of settlement
of a company for transfer of the shares, does
not vitiate a transfer by a shareholder.—Ex
parte Scully, 61. C. R. 72; 11. Jur. N.S. 434.
(R.)—[Reversed: 6 I. C. R. 524; 21 Jur.
N.S. 450. (C.)]

3. A., B., and C. were part owners of a ship.
C., as ship’s husband, chartered the ship on
a voyage which turned out unprofitable. C.
mortgaged his 16-64ths in the ship toD.; and,
becoming bankrupt, fled the country. Upon
the sale of his shares, D. purchased them, and
they were duly transferred to him before the
completion of the voyage. Upon C.’s de-
parture, A. assumed the office of ship’s hus-
band, and in that capacity disbursed moneys.
The ship having been sold, there appeared
but a small balance between the amount so
realised and the sum disbursed by A., who
had paid his full proportion on the 16-64ths
to D., upon the latter promising to repay it,
if requisite. Upon D.’s refusal to refund, A.
filed a petition for an account, as if A., B., and
D. were partners. Held, that D. was not
liable, as a part owner, for disbursements by
an unauthorised ship’s husband: that D. was
not a partner.—Delande v. Delahunty, 5 I. Jur.
N. 8.162. (C.)

4, H. carried on, wholly on his own account,
an extensive trade in’ Dublin, and agreed with
M. to become the manager of and a partner in
a larger and separate concern conducted and
owned by M. in Huddersfield. It was agreed
that M. should come to Dublin and super-
intend the separate trade carried on in H.’s
name, not under a definite and conclusive
arrangement, but to test its capacity, and de-
termine whether it was worth being continued.
Held, that though the Dublin business was not
carried on as an adjunct to, or part of the co-
partnership constituted in the Huddersfield
concern; and though H. had not intended to
commit M. to a partnership with him in the
Dublin business; yet that M., by thus super-
intending it, became in fact a partner therein;
and that the claim of M.’s executors to be
admitted as creditors on H.’s estate for goods
sold and cash supplied by the Huddersfield
concern to the Dublin concern should be dis-
allowed; but without prejudice to any claim
which the executors might have under any
special agreement with H.—Re Hall, 8 I. Jur.
N.S. 356. (B.)—[Reversed: 9 I. Jur. N.S.
321. (C.A.)—See next case. ]

5. A., the proprietor of a wholesale woollen
and cloth establishment in Dublin, agreed
with B., sole owner of a separate and larger
concern in the same trade in Huddersfield,
which B. had previously conducted, to become
its managing partner. B. having offered to

83
658

become a partner in the Dublin establishment
of A., it was arranged, though not upon any
definite conclusive agreement, that B. should
superintend the Dublin concern, with the
object of testing its capacity, and ascertaining
whether it was sufficiently profitable to be
continued. It was further agreed that, at the
expiration of a year, B. should have the option
of entering into a partnership in the Dublin
business, and should be entitled to a share in
the profits of that year ; but should not receive
any remuneration or any portion of the profits
if at the end of that time he elected to not
become a partner. B. came to Dublin, and for
some time took part in the superintendence
and management of the Dublin establishment.
He never exercised, however, his option of
becoming a partner; but, having apparently
abandoned all interest in the concern, died
before the expiration of the year of trial.
Held, that a partnership in the Dublin business
did not exist between A. and B.; and, conse-
quently, that a claim made by B.’s executors
to be admitted as creditors of A.’s estate, on
his bankruptcy, for goods sold and cash sup-
plied by the Huddersfield house to the Dublin
concern, should be allowed.—Jn re Hall, 15
IC. R. 287; 91. Jur. N. 8.321. (C.A.)

 

II. Artictes or PartNeRsHIP: THEIR
Construction, &e.

 

III. Dissorurion or Partnersuir.

1. Semble—An authority to 1 member of a
dissolved partnership to wind up the concern,
close the books, and collect the debts, autho-
rises him to state and settle an account.—
Luckie v. Forsyth, 3 Jon. & L. 388. (C.}—[See
Luckie v. Forsyth, 71. E.-R. 181. (R.)]

 

IV. Partyersnip Property or ASsETS: ITS
INcIpENTS: HOW FAR LIABLE TO SEPA-
RATE Crepirors.

2. A bequest to the representatives of the
late mercantile house of A. and K., or to
such person or persons as should, at testator’s
death, be entitled to their personal property
in satisfaction of a debt due by testator’s
father—THeld, claimable by the surviving
partner’s legal representative, as representing
the firm of A. & K.; and not by those bene-
ficially entitled to the properties of A. and
K.—Kerrison v. Reddington, 111. E.R. 451. (C.)

3. The petitioner, a shareholder in a Rail-
way Company, having been in default as to
the payment of calls made upon his shares,
the directors proceeded to declare them for-
feited. He subsequently paid up the amount
due upon these calls, and resumed his original
shares. By section 7 of their Act (8 & 9 Vic.,
c. 119, L. & P.) the Co. were enabled, before
the completion of the line, to pay interest at
£4 per cent. upon calls paid up* (provided
that no such interest should be paid to any
shareholder who should be in arrear as to any
calls). Under this section the directors had
proceeded to pay interest, out of the proceeds
of the railway, to such shareholders as had
paid up the calls made, but not to the peti-

 

[PARTNERS.—PARTNERSHIP.]

tioner, as having made default in payment.
He having presented a petition complaining
that he had been deprived of a proportionate
share of the profits of the railway, because
the directors had applied the profits of the
railway in payment of the interest upon the
money paid up, to which he by his default
had become disentitled, and praying that he
might be declared entitled to the shares of the
profits that had accrued—WHeld, that he was
not entitled to relief—If-Kenna v. Midland
Gt. Westn. Ry. Co. 7. 1. Jur. 801. (C.)

4, No precise form is necessary to constitute
a stated and settled partnership account.

An account drawn up in the handwriting of
one partner, A., eight years after the dissolu-
tion of the partnership, stating the assets of
the firm at the time of the dissolution, and
taking the excess of the assets over the ori-
ginal capital, as representing the balance of
profit over loss on the several transactions,
and stating the amount drawn out by each
partner, and the amount coming to each; and
in which account, A., after giving credit for
various payments made to him by his co-
partner B. after the dissolution, struck a ba-
lance against himself, and which account was
assented to by B. Held, a stated and settled
account, though some debts due to the partner-
ship were omitted as uncertain. A party seek-
ing to impeach or surcharge and falsify a
stated or settled account, must state the fraud
or error on which he relies in the petition.
If a partnership be admitted, the books are
admissible in evidence, in taking the account
of the partnership transactions; but the books
of A. are not admissible against B. to prove a
partnership if it be denied.—Sim vy. S., 11 I.
C.R. 810. (R.)

5. V. bequeathed £12,000 among his younger
children, and his household furniture and live
and dead stock to such of his daughters who
should attain twenty-one. He bequeathed
other portions of his property, real and per-
sonal to his children; and the residue of his
property to his daughters. He made a codicil
to his will, commencing thus :—*“ Codicil to
my will of the, &c., &c. Four of my children
having died since the execution of said will, I
alter the disposition of my property as follows.”
He bequeathed £4000 each to his three surviv-
ing daughters, and if one died unmarried, her
portion to the survivors. If more than one
died unmarried, her portion to go among his
sons, as A. was of opinion that £6000 was a
sufficient portion forany girl. He bequeathed
to his two surviving sons the remainder of
his property, in equal proportions, of whatever
kind it might consist at the time of his death.
He gave directions as to the management of
mills which he held in partnership; devised his
property over in the event of his sons dying
without issue; and appointed executors of the
codicil, as of “ his last will and testament.”

Held, that the bequest of the household
furniture, &c., in the will was not revoked by
the codicil. The intention to revoke in a
codicil must be as clearly expressed, as the
intention to devise in the will; otherwise the
[PARTNERS.—PARTNERSHIP. ]

codicil will not operate as a revocation. A
doubt, however reasonable, is not sufficient, if
the two instruments are not absolutely incon-
sistent.

A father advanced £1000 in a partner-
ship concern, for the benefit of his sons A.
and B., reserving to himself power, if they
died, to substitute two other sons for them.
The partner gave credit in his books to A. and
B. for £500 each. A. and B. both died under
age. After their death, the partner, by the
father’s direction, transferred two sums of £500
each, in his books to C. and D., two other sons,
but without adding any interest or profit
thereto from the accounts of A.and B. The
business was by the father’s directions carried
on in the partner’s own name, and the profits
carried in his books to his own account.—
Held, that there was no trust created for C.
and D., that the partnership was with the
father, and that the share of the profits was his
assets.

V., after giving legacies to his daughters,
bequeathed to his two sons, C. and D., the re-
mainder of his property, in equal proportions,
of whatever kind it might consist, at his death.
He directed the business of the mills of X. to
be carried on; a sum to be applied to that
purpose; and the remainder of his capital to
be invested in fee-simple estates, so that each
of his sons should have his portion independent
of the other; that they were not to be of age,
for the purpose of his will, until they were
twenty-five; and, if one died without issue,
under that age, his property should go over to
the other. V. was entitled to £4061, as a part-
ner in the mills of Y. C. died under twenty-five.
Held, that the profits realised on the sum of
£4061, during C.’s life belonged to him, and
were not capital to be invested in land.

V.’s partner in the mills of Y., after his death,
paid £5421, which he appropriated to the pay-
ment, in the first instance, of the £4061, due at
V.’s death, and the balance to subsequent pro-
fits. Held, that the profits realised subsequently
to C.’s death were divisible between his re-
presentative and D. ‘

Semble—If there had been no appropriation
by the partner, the payment would have been
applicable first to the payment of the profi
realised after V.’s death and the balance and
profits subsequent to C.’s death, would, as
capital, have belonged to D.—Pilsworth v.
Mosse, 141. C. R. 163. (R.)

J. A partnership deed witnessed that the
lands, mills, and machinery, which theretofore
had been the exclusive property of M., one of
the partners, should remain his sole property,
subject, during the partnership, to be used for
all partnership purposes; and provided that
the retiring partners should, at the end of the
partnership, be paid the value of their respec-
tive shares in the stock and capital of the
partnership, by the promissory notes of M.

No mention was made in the deed of the
good-will, name of the firm, or trade-marks.
At the end of eight years the partnership was
dissolved. The outgoing partners insisted on
being paid by M. for the good-will, name, and
trade-marks, at a valuation. Held, that M.,

 

659

as continuing partner, was entitled to the
good-will, name, and trade-marks, upon pay-
ing the outgoing partners pursuant, to the
deed; but without a separate valuation of them
being made.

The petition praying an injunction to re-
strain M. from using the name, &c., was dis-
missed with costs.—Dickson v. M‘Master & Co.,
11 I. Jur. N.S. 202. (C.)—[Affirmed by the
Court of C. A., with this variation, that, the
good-will should be separately valued in taking
the account. ]

 

V. BankRUPTCY OF ONE OR MORE OF A FIRM:
ims INCIDENTS.

2, A. and B. agreed that A. should write a
novel in monthly numbers, B. to pay all ex-
penses of 11,000 copies, and also £100 per
number to A., and to be entitled to the re-
maining protits of those copies. As to all
copies above 11,000, there was to be a com-
plete mutuality; the profits to be divided
equally between A. and B. The 11,000 copies
were sold. B. became bankrupt, having a
large number of copies unsold. Held, that
even if A. was a partner as to the unsold
stock, yet, as he was only a dormant partner,
the whole of it belonged to the creditors of
the bankrupt, under the 6 W. 4, c. 14, sec. 86,
as being in the order and disposition of the
bankrupt; and that for the same reason A.
had no special lien upon it.

The agreement stipulated that the work was
to be sold to the public at 1s. a number; 2000
copies were sold to a bookseller at a reduced
price, in respect of which A. claimed to be
compensated out of the bankrupt’s estate.—
Held, that this was no breach of the agree-
ment. Even if it was, it would raise a claim
only for damages, and therefore gave no right
in the bankruptcy matter.—Jn re Curry, 12 I.
E. R. 382. (B.)

3. A. was a dormant partner with the
bankrupt; retired without any settlement of
accounts; and took a bond for £300. One
creditor knew of his being a partner, but
never received any notice of the dissolution,

(@| and supplied goods to the supposed firm on

the faith of the partnership continuing. Held,
notwithstanding, that A. was entitled to
prove on the estate of the bankrupt for the
entire amount.—Jn re M‘Manus, 7 I. C. RB. 82.
(B.)

4. In order to entitle a creditor to prove on
the joint estate of a partnership firm for a
debt which was originally the separate debt of
one of the partners, there must be either a
positive agreement to adopt that debt as that
of the firm, or facts from which the Court will
be justified in deducing an agreement or con-
sent to the adoption. It is not sufficient that
the money lent to one partner has been ulti-
mately applied to the purposes of the firm.—
Inve Ferrar, 91. C.R. 11. (B.)

5. The principle laid down in Jn re Ferrar,
ex parte The Ulster Banking Co, 9 I. C. R. 11,
affirmed.

When that, which in law is only a separate
660

debt, has been proved on the joint estate, and
a dividend received, the Court will order the
proof to be expunged.

It is the duty of the assignees to take care
that such proof be not admitted. When cre-
ditors perform the duty which the assignees
ought to have performed, the creditors will
get their costs, and the assignees will get no
costs. The creditor whose proof is expunged
will get his costs, if his conduct has been
bona fide, and he has been in no respect to
blame in the matter.

In this case the dividend ordered to be
refunded, the creditor who had proved having
waived the question as to whether the Court
had jurisdiction to make such order.—Jn re
Ferrar, 9 I. C. R. 554; 5 I. Jur. N.S. 40.

B.)

 

VI. Partners, GENERALLY.

1. Bymarriage settlement lands were limited
to trustees, for a term, to raise £4000 for the
younger children: sons’ shares to be payable
at 21: daughters’ shares at 21, or marriage.
There were several younger children. Some of
them, having attained age, filed a bill to raise
their portions. Held, that the whole £4000
could be raised at once, though some of the
younger children were under age and unmar-
ried; and that the shares of the latter should
be paid into Court; with liberty to them to
apply when their shares became payable.—
Leech v. L., 5 I. BE. R. 69; 2 Dr. & War. 568.

(C.)

 

VII. How Partners ARE BOUND BY EACH
OTHER’S ACTS.

2. Notice to one of the directors of a bank,
of a prior unregistered deed, is not notice to
the board of directors, so as to bind the share-
holders, when such director has not communi-
cated his knowledge, and the existence of the
prior unregistered deed has been fraudulently
concealed, the director being himself a party
to the fraud. Notice to the trustee of a duly
registered deed will not affect the priority of
that deed, when such notice consists of the
trustee’s personal knowledge of a prior unre-
gistered instrument executed by himself, which
knowledge he fraudulently abstained from
communicating. Notice to a person who is
employed only for some specific purpose, and
who is under no obligation to communicate
the knowledge which he possesses, does not
bind a purchaser, who employs an agent who
really transacts the business.

On the 15th of March 1855, J., being largely
indebted to the T. Bank, and requiring fur-
ther advances, agreed, in writing, in considera-
tion of an advance to him by the T. Bank, of
£10,500, to assign the lands of C. to S. and
R., upon trust, to sell, and out of the proceeds
to pay all past, present, and future advances
made to him by the T. Bank. This agree-
ment J. subsequently signed, his signature
being witnessed by N., the sec. of the L. and
C. Bank. This agreement was not registered.
J. was then chairman of the board of direc-
tors of the L. and C. Bank; S. was sole

 

[PARTNERS.—PARTNERSHIP. ]

managing director of the T, Bank; and R.
was a director of the L. and C. Bank.

In July 1855, S. made w proposal to the
board of directors of the L. and C. Bank for
a loan to J.; stated that J.’s debt to the T.
Bank did not exceed £40,000; and that the
T. Bank did not hold any security from him.
The directors of the L. and C. Bank advanced
to J. £95,000; and by deeds of the Ist of
August and 7th September 1855, J. conveyed
the lands of C. to B., L., and 8., upon trust,
to sell and pay all incumbrances. These deeds
were registered in August and September
1855. In 1857, the lands in question were
sold in the I. E. Court, which held that the
registered deeds of the 1st of August and 7th
of September were entitled to priority over
the unregistered agreement. The official
manager of the T. Bank appealed, on the
ground, amongst others, that the directors of
the L. and C. Bank had, at the time of the
execution of the deeds of the 1st of August
and 7th of September, notice of the equitable
agreement. The evidence disproved actual
notice to the directors. It appeared that the
agreement had been allowed to remain unre-
gistered by the express direction of S.; that
he had fraudulently concealed the knowledge
of the agreement of the 15th of March, for
the purpose of saving the credit of his brother
J., whose solvency was essential to the wel-
fare of the T. Bank; and that it was the in-
tention of all parties, from the commencement,
to keep secret that agreement. eld, that
under these circumstances, actual knowledge
possessed by J. the chairman, R. the direc-
tor, and S. the trustee of the deed of the
lst of August, was not such notice as bound
the directors of the L. and C. Bank. V., the
solicitor of the L. and C. Bank, when about
to register the deeds of the Ist of August and
7th of September, applied to K., the solicitor
ot the T. Bank, for information and assist-
ance. K. did not disclose the agreement of
the 15th of March, which he thought was
abandoned, and which he knew was to be
kept secret; but he gave V. information as to
other securities, in consequence of which the
L. and C. Bank stopped part of the loan. K.

Falso assisted V. in registering the deeds. Held,

that these transactions did not make K. the
solicitor and agent of the L. and C. Bank, so
as to fix them with the notice which he pos-
sessed of the agreement.—In re Burmester, 9
I. C. R. 41; Dr. Rep. temp. Napier, 559. (C.A.)

3. B.’s partner in trade died, bequeathing
to his wife, whom he appointed sole executrix,
his term of years in the business premises, and
all other his property whatsoever, to be by
her divided at her death, or sooner, if she
should think fit, amongst his children and
grandchildren. She, for the purpose of con-
tinuing the business with B., entered into a
partnership agreement with him, and raised
money on the security of the leasehold in-
terest. The petitioners, the lenders, had
express notice of the purpose for which the
money was borrowed; but relied on advances
subsequently made to the children and grand-
children out of the profits of the business.
[PARTNERS.—PARTN ERSHIP.]

The petition referred solely to the securities
given by the borrower in her character of
executrix. Held, that, under such a petition,
advances subsequently made could not be
relied’ on; and that the petition, as framed,
should be dismissed, because the securities
were originally void, the money having been
lent for an improper purpose.—In re John-
ston’s Estate, 15 1. C. R. 260. (L.E.C.)
VIII. How piscuarcep; AGREEMENT TO
ACCEPT AS DEBTORS, PART OF A
FIRM IN LIEU OF ALL.

1. One of a firm, of which all the members
owed a sum vested in two of the partners on
trusts, and who had notice of the trusts, re-
tired from the firm, leaving ample assets to
pay the sum; which continued lent to the new
firm, and was applied in breach of the trusts,
with the knowledge of A. Held, that he was
responsible to the c. g. t.; for the mere retir-
ing and leaving sufficient assets was not sufti-
cient to discharge his liability unless they
distinctly adopted the new firm as a substi-
tuted security for the old one.

A sum being lent on simple contract to a
firm, who promised to give a bond for it, was
vested in trustees with power to vary the secu-
vities. The fund continued to be lent to the
same firm—Held, a breach of trust.— Cummins
v. C,, 81. E.R. 723; 3 Jon. &L. 64. (C.)

 

IX. SurvivorsHip BETWEEN PARTNERS.

2. A., after the death of his partner, B.,
carried on the same business; disposed of the
stock; and bought in new. Shortly after B.’s
death, the partnership’ property was estimated
by valuation ata certain value. Subsequently
the business declined. 3B.’s representatives

filed a bill praying a partnership account only.’

Nevertheless, A. was charged with the amount
of the valuation and interest since B.’s death.
—Booth v. Parkes, Beat. Rep. 444. (C.)

3. Two brothers, builders, but not general
partners, agreed with A. to take land and
build upon it. The agreement bound A. to
advance £1000 to the brothers at different
times, as the work should advance; and pro-
vided for making a lease at a future time in
words which, at law, would create a joint te-
nancy. The brothers covenanted to complete
the building at a certain time, and to advance
the remainder of the money required. One
brother engaged in a dispute with A. about
the land, and treated the speculation as im-
prudent. He soon afterwards became, from
absence and insanity, incapable of joining in it
until he died; never took any part in it, or
advanced any money, the houses being com-
pleted by the other brother. Held, that the
representative of the deceased brother had no
equity to claim a share in the houses, and that
the right of survivorship should not be inter-
fered with by him.—Reilly v. Walsh, 11 1. E. R.
22. (C.)

 

X. Dormant Partners.

4. A., a dormant partner with the bankrupt,
retired without any settlement of accounts,

 

 

661

and took a bond for £300. One creditor knew
of his being a partner, but never received any
notice of the dissolution, and supplied goods
to the supposed firm, on the faith of the part-
nership continuing. Held, notwithstanding,
that A. was entitled to prove on the estate of
the bankrupt, for the entire amount.—Zn re
M‘Manus, 71. C. BR. 82. (B.)

5. A. and B. agreed that A. should write a
novel in monthly numbers; B. to pay all ex-
penses of 11,000 copies, besides £100 per
number to A.; and to be entitled to the re-
maining profits of those copies. As to all copies
above that number there was to be complete
mutuality; the profits to be divided equally
between A. and B. The 11,000 copies were
sold. B. became bankrupt, leaving a large
number of copies unsold. Held, that, even if,
respecting the unsold stock, A. was a partner,
as he was only a dormant partner, the whole
of it belonged to the bankrupt’s creditors, as
being in his order and disposition, within the
6 W. 4, c. 14, s. 86; and that therefore A. had
not any special lien upon it.—Jn re Curry, 12
I. E. R. 382. (B.)

 

XI. Tur Ricuts anp Lien or Partners
INTER SE: OF SUITS BY, BETWEEN, OR
AGAINST PARTNERS.

6. The Master, after stating that the funds
of a Company actually in hand amounted to
£1200, found that this sum and other (contin-
gent) funds of the Co., when, and so far as
they should be realised, were properly appli-
cable to ptf.’s demand in respect of the costs
of resisting an action, and of an execution
issued against him as a member of the Co., in
pursuance of the provisions of their Incorpo-
rating Act. On exceptions to the report—
Held, that, as there were not any creditors of
the Co. before the Court, and it did not dis-
tinctly appear that there were any, the ordinary
partnership principle, that neither the partner-
ship nor an individual debtor can claim in
competition with creditors, didnot apply; and
therefore the Master’s report should be con-
firmed.— MM‘ Owen v. Hunter, 1 Dr. & Wal. 347.
©.)

7. The managing partner of a concern is
not entitled to an allowance for carrying on
the partnership trade, when there is neither
contract between the partners nor a custom of
the trade to authorise such allowance.

A partner who has received his share of the
assets, has no equity to insist that the share
belonging to his co-partner shall be impounded
to answer outstanding demands against the
firm, unless he brings his own share into Court
for the same purpose.

The bill prayed an account of the partnership
property, an injunction to restrain the defen-
dant, the managing partner, from interfering
with the assets, and a receiver. The Court, upon
motion, granted the injunction, and ordered a
receiver to be appointed. This order was
varied, so far as it restrained the defendant
from collecting the assets, and as to the ap-
pointment of a receiver; upon the defendant
entering into security by recognizance con-
662

ditioned to abide the order of the Court touch-
ing the partnership property. The defendant
having called in and converted into money a
large portion of the partnership assets, the
plaintiff moved that the defendant should
lodge the amount in bank. This motion was
resisted by the defendant, and was refused
with costs. A similar motion having been
made, founded upon the discharge of the
defendant, filed under the decree to account,
the defendant made an aftidavit to resist
the motion, giving an uncandid statement of
the assets. It afterwards appeared by the re-
port, that, when the first motion was made,
the defendant had in his hands money, the
produce of the partnership assets, exceeding
the amount of the plaintiff’s share. The de-
fendant was decreed to pay interest upon the
amount of the plaintiffs share from the time
he had it in his possession, until paid, at the
rate of £5 per cent.—Hutcheson vy. Smith, 5
I.E. R.117. (E.E.)

1. Semble—Proceedings taken to recover
from the separate estate of a partner amount
to an election to waive a claim on the joint
estate—IJn re Littles, 61. E.R. 197. (B.)

2. In a bill by one partner, for an account
on foot of the dissolved partnership, letters
written by the defendant to the plaintiff, after
the dissolution, were set out as in plaintiff’s
possession, and forming the basis of the part-
nership agreement, but which the defendant,
in his answer, denied. A motion by the
defendant for the production of the letters,
refused.—Pulmer vy. Mahony, 6 I. E. R. 504,
.)

3. Semble—An authority to a member of a
dissolved partnership to wind up the concern,
close the books, and collect the debts, autho-
rises the party to state and settle an account.—
Luckie v. Forsyth, 8 Jon. & L. 388. (C.)—[See
Luckie v. Forsyth, 71. E.R. 181. (R.)]

4, A surviving partner, who had possession
of the partnership books, wilfully and fraudu-
lently refused to produce them for the purpose
of having the partnership accounts taken
under a decree of the Court for that purpose.
In the absence of other evidence the Master
charged £10 per cent. per an., on the capital
stock, as the net gains made by the partners
during the partnership ; and debited the sur-
viving partner with a moiety thereof. Held,
that he was justified in doing so. The Court
decreed accordingly.

The Court must give credit to what the
Master reports as having occurred in his pre-
sence.— Walmsley v. W., 8 Jon. & L. 556. (C.)

5. The petitioner and respondent had
entered into a series of agreements to act
as partners in obtaining contracts for the
supply of goods for various branches of the
public service. The respondent, during the
continuance of some of these agreements,
entered into secret arrangements with other
persons, by virtue of which he was to share in
the profits of similar contracts, if obtained by
them. The petitioner claimed a right to share
in the profits of all such secret arrangements.

 

[PARTNERS.—PARTNERSHIP.]

Held, that he could not sustain such claim by
merely proving his own agreement, and the
existence of such secret arrangements; and
the Court directed an enquiry into the parti-
culars.—Lock v. Lynam, 4 I. C. R. 188. (C.)

6. Petition praying a dissolution of partner-
ship, and an account, is within the terms of the
Ch. Reg. Act (J7.), 1850, s. 15.

Petitioner and respondent, as solicitor and
attorney, entered by deed into a partnership
for seven years. The petitioner advanced to
the respondent £250 in consideration of the
benefits to be derived from the partnership.
Three-fourths of' the profits were to go to
the respondent; one-fourth to the petitioner.
Half-yearly accounts of the profits were to be
kept, and the petitioner was to be entitled to
at least £150 per annum, whether the profits
admitted of such proportion or not.

After the partnership had continued for
14 months, during which the respondent had
not rendered any account of the partner-
ship profits, he complained of offensive ex-
pressions of the petitioner, which had been
repeated to him by a third party; took steps
to dissolve the partnership; and refused to
account, or to return the premium or any part
of it. Held, that the petitioner was entitled
to a return of a part of the premium, propor-
tioned to the unexpired portion of the part-
nership ; the respondent’s acts having led to
the dissolution before the expiration of the
term.—Bolton v. Carmichael, 1 I. Jur. N. 8.
298. (M.O.)

7. A., B., C., and D. were owners of the
ship E., and entered into a contract with R.,
that the owners of the E., so long as she or any
vessel supplying her place, remained on the
W. line, should pay him one-sixth of the net
profits ; and that R. should support the interest
of the E. and her owners, and any vessel sup-
plying her place on the W. line, and not con-
nect himself with any opposing party.

The agreement provided for the withdrawal
of the E., and concluded:—“In which case
the interest of the station reverts to R.; and
we pledge ourselves not to directly or in-
directly connect ourselves with any party
injuring his interest in the said line.” The
agreement was signed by A., B., C., D., and R.

D. retired from the firm, and IL, G., and H.
became members of it. The M. was substi-
tuted for the E.; and R. became a member of
the firm, against the wish of R. Held, that
that agreement could not be specifically en-
forced against R. by the new firm; and that
R. could not be restrained, at suit of the new
firm, from working an opposition on the line
to the M.—Grantham v. Redmond, 8 I. C. R.
449. (C.)

8. A father advanced £1000 in a partner-
ship concern, for the benefit of his sons A.
and B., reserving to himself power, if they
died, to substitute two other sons for them.
The partner gave credit in his books to A.
and B. for £500 each. A. and B. both died
under age; and after their death the partner,
by the father’s direction, transferred two sums
of £500 each in his books to C. and D., two
[PATENT.— PAYMENTS]

other sons, but without adding any interest or
profit thereto from the accounts of A and B.
Held, that there was no trust created for C.
and D.; that the partnership was with the
father ; and that the profits were his assets.

V. After giving legacies to his daughters,
bequeathed to his two sons C. and D. the re.
mainder of his property in equal proportions,
of whatever kind it might consist at the time
of his death. He directed the business of the
mills of X. to be carried on; a sum to be ap-
plied to that purpose; and the remainder of
his capital to be invested in fee-simple estates,
so that each of his sons should have his por-
tion independently of the other; that they
were not to be of age for the purposes of his
will until they were twenty-five; and if one
died without issue under that age, his pro-
perty should go over to the other. V. was
entitled to a sum of £4061, as u partner in
the mills of Y. C. died under twenty-five.
Held, that the profits realised with the sum of
£4061, during C.’s life, belonged to him, and
were not capital to be invested in land.

V.’s partner in the mills of Y., after his
death, paid a sum of £5421, which he appro-
priated to the payment, in the first instance,
of the £4061, due at V.’s death, and the
balance to subsequent profits. Held, that the
profits realised subsequently to C.’s death
were divisible between his representative and
D ;

Semble—If there had been no appropriation
by the partner, the payment would have been
applicable, first, to the payment of the profits
realised after V.’s death, and the balance and
protits subsequent to C.’s death would, as
capital, have belonged to D.—Pilsworth v.
Mosse, 14 1. C. R. 163. (R.)

 

PART PERFORMANCE.

See AGREEMENT, VIII, 2, c.—Fraups,
Statute or, I, 2.

 

PARTY AND PARTY COSTS.
See Practics, Costs, 9. f.

 

PATENTS.

See Practicr, Insunctron, 15,
See5&6 W. 4, v. 83.

1. The Court will not, in the first instance,
interfere by injunction to restrain the infringe-
ment of a patent, unless there has been long
and uninterrupted enjoyment under it, but
will direct an action to be brought to try the
legal right.

Delay in filing the bill is a ground for
refusing the injunction.

Where the patent was obtained in 1846, the
alleged infringement of it took place in 1847,
and the bill was not filed for more than two
years afterwards, the injunction was refused.

An agreement to purchase a license to use
a patent will not, in equity, preclude a party
from disputing its validity.—Baster v. Combe,
1LC.R. 284; 3 I. Jur. 27. (R.)—[But see,
on appeal, 31. C. R. 256. (C.)]

 

663

2. Principles which guide the Court in grant-
ing or withholding an injunction after verdict
and before the legal right is finally deter-
mined.— Baxter v. Combe, 31. C. R. 256. (C.)

3. The prior publication of a patent in
England does not render void an Irish patent
afterwards granted for the same invention
in Ireland.

In 1852, H. obtained in England letters
patent for an invention, and in 1853 obtained
letters patent in Ireland for the same inven-
tion. eld, that the Irish patent was valid.—
Magill y. Gibson, 11 1. Jur. N.S. 164 (C.)

 

PAUPER.

— Affidavit on Application to sue as.
Practice, Eviprencer,
See Practice, Costs, 10 e e—Pracricy,
Pavrers.

See

 

PAWN.
See Security.

 

PAYMENT.

— Of Purchase Money. See Vendor anp
Purcuaser, I.

— Of Costs—iis Effects. See Practice, Costs.

— Injunction to Restrain. See Pracricr, Iy-
JUNCTION.

— Order for. See Practicy, Payment, ORDER
ror.
— Into Court. See Practice, Payment into

Court.

— Into Court on Injunction to restrain Proceed-
ings at Law. See Practice Ixsunction.

— Out of Court. See Practice Payment.

— Plea of. See Preavine, Pruea.

— Application of Payments. See DEBtor anp
Crepitor, IV.

— Off, of Incumbrances. See Estate, VII.

— Of Debts. See Executor, XI.

— Of Mortgage Money. See Mortcacx, IX.

— Of Legacies, and what amounts to. See
Leeacy, VIII, 3.

— Of Annuities, See Annuity, IV.

— Of Dividends. ‘See Bankruptcy, XV.

— Presumption of. See Boxnp, VI—Presump-
tion, II.

4. B., on selling lands, covenanted with C.,
the purchaser, to protect him against “all judg-
ments, charges, and incumbrances,” &c. It
afterwards appeared that the lands were
liable to a judgment confessed before they
came into C.’s possession. Proceedings having
been commenced by the conuzee against the
lands, and B. having been called upon by C.,
and having paid off the judgment in fulfil-
ment of his covenant—Held, that this was not
avoluntary payment.—Aicken y. Macklin, 1 Dr.
& Wal. 621. (C.)

5. Under the 9 G. 2, ¢. 5 (r.), payment by
the conuzor of a judgment to the conuzee, with-
out the conuzor having notice of a prior as-
signment of the judgment, is to be deemed
664

payment to the assignee. Registration of the
assignment under that statute does not ope-
rate as notice to the conuzor. The position
of a conuzor under this statute resembles
that of a mortgagor under the 32 H. 8, c. 34
(Eng.)—Boyle v. Ferrall, 12 Cl. & F. 740.—
[Affg. 11. E.R. 404. (C.)]

1. A trustee, C., of a money fund, violating
his duty, lent the trust money to F. on the
security of a judgment. IF. did not then
kvow that he was borrowing trust money.
Afterwards F., at the request of the c. g. t,
and by C.’s direction, paid the interest to the
c.q.t., who was entitled to it during her life.
C. afterwards threatened to issue execution
on the judgment. F. stated to the c. q. ¢. that
he, if she did not interfere to protect him
against C.’s demand, would be obliged to pay
C. She did not do so. F. alleged that he
then paid C., who thereupon satisfied the
judgment on record. Upona bill filed against
F. and C., after the death of the tenant for life,
by the person entitled absolutely to the trust
fund—Held, that F. should pay the money,
with interest.—Sheridan y. Joyce, 7 I. E.R.
115; 1 Jon. & L. 401. (C.)

2. When an infant is entitled to a vested
legacy, payment thereof during his minority
by the testamentary guardian’s executor is
valid, inasmuch as the statute abolishing the
Court of Wards and Liveries, 14 & 15 Car. 2,
c. 13 (Ir.); 12 Car. 2, c. 24 (Eng.), enables the
guardian to give a good acquittance. Such
payment is valid, although the period directed
by the testator for paying it is the attainment
of age or marriage.

V. bequeathed to his eight younger children
all his property, share and share alike, on
their respectively attaining age, or marrying
with their guardian’s consent; and directed
that the interest arising from their respective
shares should be applied in the meantime to
their maintenance and education. V. ap-
pointed a guardian and an executor. Held,
that a payment, during the minority of the
children, of a part of the corpus of V.’s per-
sonal estate by the executor, to the guardian,
was valid—M‘Creight v. M‘C., 18 I. E.R.
314. (C.)

3. V. bequeathed real estate, in trust, out
of the annual rents, &c., to satisfy the several
incumbrances which should at his death
remain really affecting, or liens upon, the
estate or any part thereof, and also all such
of his proper debts, by himself contracted,
and of his legacies, as his personal estate,
thereafter for that purpose bequeathed, should
be insufficient to satisfy; and, after satisfac-
tion of all such incumbrances, debts, and
legacies, to the use of the second son, B., for
life, without impeachment of waste; re-
mainder to his first and other sons in tail;
remainder to his eldest son A. for life; re-
mainder to his first and other sons in tail;
remainder to his daughters, as tenants in
common, in fee. V. directed that B. should
receive £200 a-year out of the rents, for his
support, to be increased on his attaining the

ee eee

 

[PAYMENT.—PENALTY.}_

ages of sixteen and eighteen to £300 and
£400; and directed his debts, and younger «
children’s fortunes, to be paid out of his
personal estate ; and, if that should be insuf-
ficient, that the residue should be paid out of
the savings of the estates devised to B., and
not by sale or mortgage thereof. <A leasing
power was given to A. and B., when actually
seized. Portions for V.’s daughters were
charged on the estates, and the debts were
directed to be paid by the personal estate, the |
surplus of which was to be laid out in the
purchase of real estate, which was to be
settled in strict settlement on A. for life, to
whom he devised the residue of his property.
B., who was a minor at V.’s death, and was
made a ward of Court, received, under orders
of the Lord Chancellor, sums exceeding
the allowance directed by the will to be
paid to him during his.minority. Held,
that the incumbrances were charged on
the annual rents of the estate devised to
B., and not on the inheritance. That in
a suit by the representative of B. to be
recouped out of the personal estates, for
payment of incumbrances, the inheritor, who
was a party, and made a similar claim, could
not have credit for the sums overpaid to B.,
by way of maintenance against the petitioner.

Decrees of the Court, though erroneous, are
binding until set aside on re-hearing, or in a
suit for the purpose.—Clanmorris v. C., 14
IC. R. 420. (R.)

4, In Ireland, money, which, belongs to a
wife, and does nut exceed £100, may be paid to
the husband without her consent.—Jn re Sur-
ridge’s Trusts, 17 I. C. R. 163. (R.)

 

PEACE.
— Billof. See Preapine, Brin, 12.

 

PECUNIARY INTEREST.
See INTEREST PECUNIARY.

 

PECUNIARY INADEQUACY.
See Consiperation, II.

 

PEERS.

 

PENALTY.

— Waiver of. See Prrapine, Bivvy.

— Interest given beyond. See IntEREST PEcu-
nuary, III.

— Relief against. See Bonp, V.

5. A. mortgaged his property to D. to secure
£700, which D. agreed to take in lieu of a
judgment debt of £3000. The £700 was made
payable by stated instalments. If they were
not punctually paid, D. was to be remitted to
his original rights, and to have the mortgage
security also. By a contemporaneous deed,
the judgments were assigned to trustees for
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