on the production of an affidavit, shewing that the husband had no interest adverse to the wife. Mr. J. A. Cooke moved, under the 32nd Order of the 8th of May 1845 (1), that the solicitor appearing for the wife, in this case, might be appointed the guardian of the husband to appear to and defend the suit. The husband and wife were both resident out of the jurisdiction of the Court, and the husband was a lunatic, though not found so by inquisition. The subpoena to appear and answer had been served on the husband by the direction of the Court in March last. Dismissing Bill-Replication-General Orders of May 1845 Orders XIV., Art. 4., XCIII., and CXIV. Art. 1. Upon motion by some of the defendants to dismiss the bill under the first article of the 114th Order of May 1845, the fact that other defendants have not yet put in their answer is not per se a ground for refusing the motion; the plaintiff must shew sufficient excuse for the delay in not getting in the other answers. Where, upon a motion to dismiss, the plaintiff is ordered to file his replication within a given time, the vacation will be reckoned in the computation of such time. The 4th article of the 14th Order of May 1845, does not apply to such a case. The Court will not, as of course, nor except in case of necessity, give a plaintiff leave under the reservation in the 93rd Order of May 1845, to file a second replication in the same cause. (1) Ord. Can. 296; 14 Law J. Rep. (N.S.) Chanc. 288. NEW SERIES, XV.-CHANC. On the 11th of March, application was made by some of the defendants in the cause, under the 114th Order, art. 1, of May 1845(1), to dismiss the bill for want of prosecution. The plaintiff appearing upon that motion, an order was made that he should file his replication within a month, or, in default thereof, that the bill should stand dismissed, with costs, without further order. The plaintiff did not file his replication till after the 8th of April, which was one lunar month from the date of the order. Subsequently, other defendants in the cause put in their answers. 17th of April, Mr. J. H. Palmer applied, ex parte, under the 93rd Order of May 1845 (2), for leave to file an additional replication, for the purpose of putting the cause in issue as against those other defendants, stating that, at the time of the application to dismiss, counsel had not been instructed that there were other defendants who had not answered. On the WIGRAM, V.C.-On the motion to dismiss, it was not stated by the plaintiff, nor was my attention called to the fact, that there were other defendants who had not answered. If I had been aware that other defendants had not answered, I should first have asked the plaintiff whether he would require to file a replication against those defendants; or whether they were in such a position that he could set down the cause upon bill and answer as against them. If the answer had been, that he would have to file a replication against them, the next question would have been, whether he could excuse the delay in not having got in their answers sooner; for the fact of there being defendants who have not put in their answers, is not of itself a reason for refusing to dismiss the bill. If a valid excuse can be made for the delay, the order commonly made is, that the motion stand over to give the plaintiff a reasonable time to get in those answers. If, on the other hand, no valid excuse is given, then the defendants are entitled to their order of dismissal. At the time that I made the order for dismissal, I was not aware of the fact, that there were other defendants who had not answered; (1) Ord. Can. 330; 14 Law J. Rep. (N.s.) Chanc. 295 (2) Ibid. 119; 14 Law J. Rep. (N.S.) Chanc. 293. 2 T and the consequence is, that if their answers do require to be replied to, that cannot be done, except I am prepared to give the plaintiff leave to file a separate replication under the 93rd Order of May 1845; which provides that only one replication shall be filed, except the Court shall otherwise order. One replication has already been filed, and now an application is made ex parte to file a second, as against the other defendants, and no special ground is stated for that application, and no reason given why the Court was not informed of the actual state of the record; but the application was supported by the argument, that the defendants, to whose answers replication had been filed, could have no reason to complain, and that the other defendants could not be damnified; the effect of which argument is, that the 93rd Order is a nullity. Upon a motion to dismiss, the Court may impose terms upon the plaintiff, that he file his replication forthwith; but if he may afterwards obtain leave as of course to file a replication against other defendants, the 93rd Order is gone, and the old practice is restored; and it would lead to this inconvenience, that there would be examinations of witnesses as against different defendants going on at different times. It is quite clear, that if the 93rd Order is to prevail, I cannot grant the present application. The doubt I have is, as to the proper form of the order I ought to make, under the circumstances. The right course, I think, would be to give the plaintiff leave to amend his notice of motion, and to serve it upon the defendants, to whose answers a replication is to be filed. The form of the motion would be in the alternative, either to withdraw the replication already filed, and then to file one replication to all the answers; or, else, that publication may be enlarged as against those defendants to whose answers a replication has been filed; and then, the two replications having been filed, the object will be answered of having the evidence taken simultaneously against all the defendants. The reason I put it in that way is, that it will oblige the plaintiff to do that which he ought to have done before, namely, to shew that it was by no default of his own that the answers of these defendants, to which he wishes now to file a replication, were not sooner put in. It is quite clear, that the other defendants have a right to have that point made out; otherwise the plaintiff will always have some friendly defendant who will keep back his answer until some application is made to dismiss. I give leave to the plaintiff to give short notice of motion in either of the alternatives for the next seal. April 23. The defendants, who had moved to dismiss, treating the replication, which had been filed after the 8th of April, as a nullity, on the ground that it was not filed within the month specified in the order, obtained and served a warrant to tax the costs of the bill, as dismissed ipso facto, by non-compliance with the terms of the order. The plaintiff now moved, that all proceedings under the order of the 11th of March might be stayed, and that the plaintiff might be at liberty to file a replication to the answer of the defendants in the cause, as of the 8th of April. In support of the motion, an affidavit was read, that the delay in getting in the answers had occurred in consequence of the pendency of negotiations for the compromise of the suit; and it was contended, that the replication had been filed in time: the Easter vacation, from the 4th to the 14th of April, not being to be reckoned in the computation of time for that purpose. 14th Order of May 1845, art. 4. (3). Mr. Jervis, contrà, contended, that the 4th article of the 14th Order did not apply to replications filed by special order, but only to those filed under the directions of article 41. of the 16th Order of May 1845 (4). WIGRAM, V.C. was of opinion, that the replication was filed too late; but as that arose from mistake, he would give the plaintiff liberty to amend his notice of motion, by asking that the bill might be restored; and upon that motion, he would restore the suit, and give him leave to file his replication, notwithstanding the order of the 11th of March; the plaintiff consenting that publication should pass on the same day on which it would have passed had the former replication been duly filed; the plaintiff to pay the costs of the motion, and of the proceedings to tax the costs of the bill. (3) Ord. Can. 276; 14 Law J. Rep. (N.s.) Chanc. 283. (4) Ibid. 290; 14 Law J. Rep. (N.s.) Chanc. 286. Trust Trusts by Parol-Reading Answer; Withdrawal of Examination of Party interested. A. transferred stock from her own name into the joint names of herself and B. (a stranger); and A, after receiving the dividends for some years, died intestate, leaving B. surviving. To a bill by the administratrix of A, claiming the stock as part of A.'s estate, B. put in her answer, stating, that A, after the transfer, informed the defendant, that the transfer was made in confidence that the defendant, if she survived A, would fulfil every wish and direction which she might express respecting it. The answer then stated that the wishes which A. from time to time expressed were that the defendant should pay certain sums to specified individuals, the dividends of part to the plaintiff for life, and should hold the residue for herself absolutely; and that the defendant had paid over the said sums in pursuance of those directions :-Held, that the plaintiff having read from the answer the admission of the trust, was bound to go on to read what the trusts were; the trusts, though declared from time to time, forming one transaction. That credit was to be given to the statements, so far as the trusts were for the benefit of strangers; but so far as they were beneficial to the defendant, the Court directed an issue with liberty to examine the defendant. application of the plaintiff to withdraw that part of the answer which she had read refused, under the circumstances. The In February 1831, Sarah Freeman, who had been a domestic servant of the father of the defendant, Martha Tatham, transferred the sum of 475l. 15s. 3d., 3l. 10s. per cent. reduced bank annuities, which was then standing in her own name, into the joint names of herself and Martha Tatham, and from time to time made additions to the said bank annuities, until at the time of the death of Sarah Freeman, the stock standing in the joint names of Sarah Freeman and Martha Tatham amounted to 6377. 10s. 3d. Sarah Freeman reIceived the dividends on the stock till her death. On the 21st of May 1839 Sarah Freeman died intestate. In August 1839 M. Tatham transferred 350l., part thereof, into the names of herself, W. H. Tatham, C. R. Tatham and T. T. Tatham, inform ing them that the dividends were to be paid to the plaintiff, Susan Freeman, the sister of Sarah, for her life, and, subject thereto for herself M. Tatham absolutely. The dividends on the said last-mentioned sum were paid to the plaintiff up to the 5th of January 1844. On the 22nd of March 1844, Susan Freeman, as administratrix of her sister, Sarah Freeman, filed her bill against M. Tatham, W. H. Tatham, T. T. Tatham and C. R. Tatham, insisting that M. Tatham was a trustee for her, the plaintiff, of all the stock standing in the joint names of S. Freeman and M. Tatham, and praying for an account of the several sums of stock so transferred into and invested in the joint names of S. Freeman and M. Tatham, and of the dividends thereon received by M. Tatham, and that the sum of 350l. stock now standing in the names of the defendants, and the residue of the said other sums of stock so transferred into the joint names of S. Freeman and M. Tatham, might be transferred to the plaintiff, and the amount of such dividends paid to the plaintiff. The defendant, M. Tatham, by her answer alleged "that shortly after the 15th of February 1831, she was informed by the said Sarah FreeIman that she had attended at the Bank of England, and with the assistance of the said W. H. Tatham, had transferred the whole of the stock which then stood in her name, amounting to the said sum of 4751. 15s. 3d., 3l. 10s. reduced bank annuities into the joint names of herself and this defendant; and the said S. Freeman also informed the defendant, that she intended from time to time to add her subsequent savings to the same; and the said S. Freeman also informed the defendant, and from time to time, subsequently, repeatedly told her that she, the said S. Freeman, had made such transfer into such joint names of herself and the defendant, and intended to make such additions to the said bank annuities so transferred, to the intent and with the desire that she, the said S. Freeman, might have and receive the dividends thereof during the joint lives of herself and the defendant, and that the defendant, if she survived her, the said S. Freeman, might have the entire absolute benefit of all such bank annuities which had been so transferred, and which at the decease of her, the said S. Freeman, might be standing in the joint names of her, the said S. Freeman, and the defendant; the said S. Freeman expressing her entire confidence that the defendant would fulfil every wish and direction which she might give to the defendant respecting the same.' "That the wishes and directions which the said S. Freeman, from time to time, gave and repeated to the defendant respecting such bank annuities, were, that the defendant, in the event of her surviving the said S. Freeman, should, during the life of her, the said S. Freeman's sister, the said plaintiff, pay to her, the said plaintiff, the dividends of 300l., part of the bank annuities which should, at the death of the said S. Freeman, be standing in the joint names of herself and the defendant, or if the conduct of the plaintiff should be such as in the opinion of the defendant would render it prudent not to trust her with money, then that the defendant should, instead of paying such last-mentioned dividends to the said plaintiff, apply the amount thereof for her, the said plaintiff's benefit, during her life; and that the said defendant should pay unto Amelia Palmer, of &c., the sum of 50l., and to J. Palmer 201., and to their three children 51. each; to Sarah Shanks, of &c., 10l.; the sum of 251. to be divided between the said W. H. Tatham and his four children; and that, subject to the payment and application of such dividends of the said sum of 300l., to and for the benefit of the said plaintiff during her life, and to the payment of such sums of money as before mentioned, all the bank annuities which, at the death of the said S. Freeman, should be standing in the joint names of the said S. Freeman and the defendant should belong absolutely to the defendant." "That the defendant frequently requested the said S. Freeman to have put into writing the wishes and directions she had expressed to the defendant respecting the said bank annuities, but that the said S. Freeman always refused to have the same done, expressing her entire confidence in the defendant, and that the defendant would comply with her wishes respecting the same." The answer then went on to state that the defendant, out of the proceeds of the stock, had paid the before-mentioned sums of money to the parties, in pursuance of the direction of S. Freeman; and had transferred into the names of herself and the other defendants, 350l., part of the same stock, upon trust, as to the dividends thereof, for the plaintiff for life, and after her decease for the defendant absolutely; the dividends on the additional 50l. stock being intended by the defendant as a free gift to the said plaintiff; and the defendant submitted that, subject to the said money payments, and to the life interest of the plaintiff in the 3501., she was entitled to the stock absolutely. Mr. Wood and Mr. Prior, for the plaintiff, then proceeded to read the admission from the answer of M. Tatham, that the stock was transferred upon trust, and contended, that the defendant was bound to prove what the trusts were; that if no declarations of trust were made, then the stock was part of the estate of S. Freeman undisposed of. Mr. Romilly and Mr. Nevinson, for the defendant, M. Tatham, contended, that if the plaintiff read from the answer the admission of the trusts, she was bound to read also the statement of what those trusts were, Bartlett v. Gillard, 3 Russ. 149; s. c. 6 Law J. Rep. Chanc. 19. Taylor v. Salmon, 3 M. & Cr. 422. Mr. Wood and Mr. Prior, contrà, said, this was analogous to the case of an executor, who could not discharge himself by his answer, except both the receipt and the payment over were on the same day. In the present case, the transfer was on one day, and the declarations of trust upon subsequent days-Thompson v. Lambe (1). In Connop v. Hayward (2), the answer of an executor, admitting assets, was allowed to be read without reading a passage in the answer, as to the payment of the legacy. The Court having reserved the objection, the argument proceeded. For the plaintiff the following cases were cited: : Rider v. Kidder, 10 Ves. 360. (1) 7 Ves. 587. (2) 1 You, & Col. C.C. 33. to shew that though such a transaction might constitute a gift in the case of a wife or a child, yet in the case of a stranger it constituted merely a trust. For the defendant, M. Tatham, it was argued, that a distinction was to be taken between a transfer of stock and a purchase of stock. In the latter case there was a resulting trust in the party advancing the money; in the former there was not. Rider v. Kidder, 10 Ves. 360. George v. the Bank of England, 7 Price, 646. The transfer and the trusts were in effect contemporaneous, the trusts being those which S. Freeman should declare at a future time. Mr. Piggott, for the defendants, the trustees, submitted to act as the Court should direct. Mr. Wood, in reply, contended, that there would be great danger in allowing a trustee, by her answer, to claim any benefit for herself; and in case the Court should think that the plaintiff was bound to read the whole answer, he asked for leave to withdraw that part of the answer that was read, and to rest the plaintiff's case upon the general reasoning to be drawn from the circumstances. March 24.-WIGRAM, V.C.-In this case, if the plaintiff reads anything from the answer, whereby she seeks to charge the defendant as a trustee, I am inclined to think that the defendant has a right to say that the plaintiff must go on to read from the answer what those trusts are. The question is, whether the defendant is a trustee or absolute owner of the stock. She says, by her answer, that she accepted the trust, which was to hold the stock for such purposes as S. Freeman should after declare. Though S. Freeman was to declare the trusts from time to time, yet the trust is one transaction. If these passages had been found in any other paper but an answer, there could have been no question about it. If you seek to charge a party as a trustee, and she admits that she is a trustee, she must have a right to say what those trusts are, though she cannot go on to say that she has paid the money in pursuance of those trusts, without proving what the trusts were. If I oblige the plaintiff to read the declaration of the trusts, so far as the defendant says she is a trustee to pay to strangers, I see no ground for discrediting the truth of her statement; but I do not see how I can take her statement as evidence, when the question is, whether she is a trustee for others, or a beneficial owner of the residue; especially when so much depends upon the very words that were used. I do not think I could, consistently with the rules of the court, give credit to her statement as to her own benefit, without further inquiry. Then the counsel for the plaintiff applied for leave to withdraw that part of the answer which they had read. The Court does sometimes allow that to be done, where the plaintiff has been surprised by being compelled to read a further passage; but it is by no means a matter of right, but in the discretion of the Court. I may observe, that there is another question, upon which I do not mean to intimate the least opinion, whether, if the plaintiff charges the defendant with the receipt of the money, (and it is only by the answer the plaintiff does charge her with the receipt of the stock,)-whether it is perfectly clear that the defendant has not a right to read the rest of the answer. The stock was transferred into the name of Martha Tatham, without her knowledge, and she did not hear of it until informed of it by the deceased; who told her she had transferred the stock into their joint names in confidence, &c. S. Freeman might have called for a transfer back the next momentRider v. Kidder. If Martha had died first, Sarah's executor might have claimed it. The effect of the answer is this: when the plaintiff calls upon her for an admission, she says, "I never knew of it until the 15th of February; when Sarah Freeman told me she had transferred the stock upon certain trusts; I accepted the trusts." The plaintiff never gets an admission of the stock standing in her name, except in connexion with the trusts, and the plaintiff gives no evidence of the transfer of the stock except in this way. I shall reserve the consideration of that question. Suppose the plaintiff had proved the transfer of the stock into the names of the two; then Rider v. Kidder is an authority for that being a trust. I do not understand Mr. Romilly's distinction between a transfer and a purchase; in that case a party purchased stock in his own |