Commissioner's decision, praying that the petitioner might go in and prove for the 6,000l., in addition to the sum for which a proof had been allowed.

not any part of any trade or business which had been carried on by the testator, which was carried on by the wife alone, or otherwise than by the wife and son jointly. This

Mr. Swanston and Mr. Bacon, for the assignees.

I

SIR J. L. KNIGHT BRUCE.-The facts I take to be these: -The testator was a draper at Royston. Upon his death his widow, mentioned in the will, continued that trade for a very short time, and then she took her co-executor, the testator's son, into partnership with her in the testator's business; the testator never having had a partner. The sum of 6,000l. was, as I understand, either received and retained by her, or received and retained by both. will assume (as I suppose that view is most beneficial to the respondents,) that it was received and retained by her. Being so received and retained by her, I am to understand that, at the commencement of this partnership, it had either not been brought into trade, or, having been brought into trade, was safe, not lost, and not diminished; so that, if she had died or married, or wholly and in every sense discontinued the business, the money would have been forthcoming. By the effect of formation of the partnership, all the partnership assets and all the business came into the joint possession and power of the two partners, with such power in each over the partnership as one partner, by the law of the country, separately has.

And I understand that they came into the joint possession of, and had a joint controul over, the 6,000l., or that which represented the 6,000l. ; because if it had been received by the widow in the trade before that partnership, it is agreed that it was safe, and all the property, including that, went into the partnership. If it was received afterwards, of course it was received by the partnership. This is the state of things with reference to which we have to consider the consequences of this clause. I should also say (indeed it follows from what has been already stated) that the partnership extended to the whole of every trade and business that the testator had carried on; so that from the time of the formation of the partnership, there was

clause. "And I hereby direct and declare, that it shall be lawful for my beloved wife to retain in her hands and to use and employ" (that is, for my wife to use and employ, retaining in her hands to use and employ, for that is the effect of it) "any sum or sums of money not exceeding 6,000. in the whole, in carrying on the trades or businesses in which I may be engaged at my decease, or any part thereof, for and during so long a time as she may think fit, if she shall continue my widow; and I direct that all the rest of my personal estate, except the 6,000l., shall be converted into money, and laid out in government or real securities, in the names of my executors, as soon as conveniently may be after my decease; but in case my said wife shall marry again after my decease, then and in that case I direct that the said 6,000l. shall be no longer"

('shall be no longer' implies a continuance, not a new act,)-" continued in her hands, but shall be immediately paid in and invested by my executors, in government or real securities, at interest, for the benefit of my said wife, who shall lose by marrying again only the custody and possession of the 6,000l., and not any beneficial interest therein." Now, I am of opinion, that, upon the construction of this will, the testator intended the trade or business to be carried on by the wife alone. The true interpretation of the will requires it to be 80. As soon as she entered into a partnership, which partnership extended to the whole of the testator's trades and businesses, she thereby discontinued the testator's trades and businesses; and thereupon it became the duty of the executors to call in the 6,000%. 6,000l. It is admitted that the 6,000l., when that partnership began, was not wholly or partially lost, but was entirely safe. The consequence is, that, independently of the liability of the two incurred by the joint possession, there was a liability by the breach of trust, in which they both participated, in allowing money which ought to have been invested to remain uninvested on personal security. This is my opinionan opinion, upon which I should be in

acted, "That the petitioning creditor shall, at his own costs, sue forth and prosecute the commission until the choice of assignees, and the commissioners shall, at the meeting for such choice, direct the assignees to reimburse such petitioning creditor such costs." Under this section the petitioner, Mr. Fidgeon, applied to the commissioner for the payment of his bill. The commissioner declined to make any order, as the point was a new one. The petitioner, thereupon, presented his petition for the payment of these costs.

Mr. Taylor, for the petitioner, contended, that, if the prayer of this petition was not granted, the 7 & 8 Vict. c. 96. s. 41. would be a nullity. No solicitor would prosecute a fiat on the petition of a bankrupt, if he, the solicitor, were to be refused the costs out of the bankrupt's estate.

SIR J. L. KNIGHT BRUCE.-Under the circumstances stated in the petition, I think these costs may be allowed. It is a new point, and I entirely approve of the course taken by the commissioner.

The case was mentioned the next day in the presence of Mr. Swanston, who appeared for the assignees. His Honour adhered to his opinion.

Abatement. See Legacy.
Account-Freehold and leasehold estates absolutely
conveyed and assigned by A, in embarrassed cir-
cumstances, to his brother B, in fee. In deeds of
conveyance and assignment no consideration ex-
pressed, but it appeared that B. had paid debts of
A. to the amount of 2,000l., which was stated by B.
in his answer to the bill filed by A. in 1832, seeking
a re-conveyance and re-assignment of the estates by
B, to be the consideration for the execution of the
deeds. Decree directs an account to be taken of
dealings and transactions of plaintiff and defendant.
The Master, in taking account, allows no interest
on either side; and by his report, in 1838, finds a
balance of 781. due to defendant. Possession of
estates is delivered up to plaintiff by defendant in
1841; and by order, on further directions, in 1842,
account is taken of rents received by defendant
during his possession of the estates, and the Master
found 4131. due from defendant to plaintiff. Defen-
dant not entitled to claim interest in respect of
balance found due to him in 1838; and being a de-
faulter is not entitled to his costs of taking accounts;
and is bound to pay balance due from him, and to
re-convey and re-assign estates to plaintiff, and to
deliver up deeds of conveyance and assignment at
cost of plaintiff, 13

Where pecuniary legatee may be made party to
bill praying for, 58

See Bill. Executor. Mortgage.
Administration-Debt due for rent of land occupied
by tenant from year to year of a higher class than
simple contract debts, 24

In suit for administration of estate of A, B, one
of his executors, produces, in Master's office, a pro-
missory note, signed by A, whereby A. promised to
pay B. 1,000l. on demand, for value received, and
claims proof of debt on it. In support of claim, B.
proves that in 1822 A. lent to C. 1,000l., but declared
that C. should hold it in trust for B. In 1836 C.
became insolvent; in 1837 A, B, and A.'s solicitor
had an interview in respect of the loss of the 1,0002.;
and a few days after, A. gave note in question; and
that interest had always been paid by A. to B. from
time of loan to C. until A.'s death in 1841. B. has
a right of proof on note, 174

NEW SERIES, XV.-INDEX, Chanc, & Bankr.

Administration--In suit for administration and dis-
tribution of funds under will, and motion for refer-
ence, on preliminary inquiries, as to proper parties
to suit, incumbrancers of shares of parties interested,
and taking of accounts, &c., with liberty for Master
to state special circumstances, reference only as to
parties granted, 217

Under 46th Order of August 1841 debtor upon
voluntary bond, whose debt has been established,
Master entitled to payment of his principal in
preference to claim of simple contract creditors for
interest, 439

Affidavit-By whom affidavits for leave to amend must
be made, 145

Agent. See Injunction.

Amendment-Order on 7th of December, for leave to
amend, with usual undertaking to amend within
three weeks. In consequence of discussion before
the registrar, three weeks elapsed before order
drawn up. Notice then given of a motion for leave
to draw up order of 7th of December, as of a sub-
sequent date, amendments to be made within one
week. Order made on that motion, containing the
ordinary undertaking to amend within three weeks
discharged, as irregular, 10

Plaintiff filed bill for discovery, and an injunc-
tion to restrain defendant setting up any outstand-
ing term; by answer it appeared that there was an
outstanding term which had been assigned to secure
a mortgage; plaintiff then amended his bill praying
liberty to redeem mortgaged premises. Motion to
dismiss original bill, on ground that amended bill
set up a different case, dismissed with costs, object
being substantially the same in both bills, but mode
of obtaining it varied, 29

Special applications for leave to amend, for the
future to be made, in first instance, to Master in
rotation, and not to Court, except by way of appeal.
Affidavits, in support of special application for leave
to amend, after expiration of four weeks mentioned
in 68th Order of May 1845, must strictly comply
with requisition of Order; and affidavit of solicitor
himself will not be dispensed with. But where
defendants are abroad, or are a corporate body, and
affidavit cannot be obtained from them, affidavit of
their solicitor sufficient, 145

A

Amendment-All motions for leave to amend subject
to New Orders of 1845, although notice of motion
given, and circumstances affecting case occurred
before Orders came into operation. Considerations
by which discretion of Court will be guided upon
such applications, 149

Answers of defendants resident out of jurisdic-
tion to plaintiffs' original bill, prepared and sworn,
and awaiting messenger to bring them to England;
during which time plaintiffs amend their bill, and
give notice to defendants that they require from
them no answer to amendments; three days after
amendments made, plaintiffs give notice of motion,
that if defendants do not answer plaintiffs' bill
within eight days from date of order to be made on
motion plaintiff's might, in default, be at liberty to
file traversing note against them. Motion irregular,
and refused, with costs, 192

of bill, discretionary in Court on facts appearing
before it, 435

See Parties.

Annuity-Abatement of, 183

See Judgment. Legacy. Settlement.
Answer-No prospective order, dispensing with oath
of messenger, in case of answer coming from abroad,
although when answer has already reached this
country, and Court has been satisfied that it has
been properly taken, it has dispensed with necessity
of having oath of messenger, 64

Practice as to plaintiff reading part of answer, or
withdrawing part read, 323

Refusal to answer portions of bill, 423
See Process.

Anticipation. See Baron and Feme.
Appearance-Case not within 29th Order of May 1845,
where plaintiff filed bill in 1842; defendant ap-
peared and answered in same year; plaintiff
amended bill in 1844, and served subpoena on de-
fendant's solicitor to answer: defendant at this time
resided abroad; and plaintiff applied for leave to
enter an appearance for defendant, 30

Necessity, on application by plaintiff for leave to
enter an appearance for defendant under 27th Order,
subpoena to appear having been served in May 1845,
for plaintiff to serve new subpoena or give notice of
motion, 72

260

Entering for infant defendants resident abroad,

Sec Process.
Apportionment of power, 41
Appropriation. See Legacy.
Attachment-Semble, issuing of, not a proceeding in
the cause within meaning of 4th Order of Novem-
ber 1841, 132

In 1838 usual four-day order made for defen-
dant to pay money into court, and duly served
in 1839, shortly after which defendant became
bankrupt. In October 1845, fiat annulled, and in
July 1846, defendant was arrested under an attach-
ment for disobedience to order of 1838. Attach-
ment discharged for irregularity, with costs, on
ground that no writ of execution of order had been
served pursuant to practice existing before Orders
of August 1841, and that order did not contain the
indorsement required by 12th order of August 1841.
Semble-plaintiff ought to have applied to the Court
for a new order, 439

See False Imprisonment.
Auction-Validity of sale by, though puffer employed
by vendor, 6
Averment. See Bill.

Bankrupt-As to substituting name of official assignee
by motion, and his right to carry on suit without a
creditors' assignee, where official and creditors'

assignees file bill, and latter dies before, and former
after decree, 79
Bankrupt Notwithstanding order of Court of Review
for consolidation of estates of two firms, and receipt
by creditor under that order of dividend out of con-
solidated fund on amount of his debt, such creditor
entitled to require payment, out of separate estate
of deceased partner, of what remains due to him in
respect of his original contract, 185

Baron and Feme-Validity of deed of arrangement
made twenty years after the marriage of A. and B.
and when they had three children living, by which B.
the wife was to have paid to her annually out of A.'s
estate conveyed to trustees, certain pin money, and
also a sum of money as the means of maintaining
an establishment, which was to be for her separate
use, independent of A, and so much thereof as B.
should desire to expend was to be applied by her in
a particular manner, leaving remainder of it (if
any) for A: the establishment to be for B. and for
accommodation of her children, enabling her hus-
band to partake of it; previously to execution of
deed a suit had been instituted by B, for a divorce
from A. for cruelty, and was pending at date of
deed; and discontinuance of suit, prevention of
disputes, and waiver by B. against A. of other pro-
ceedings then in contemplation for obtaining a
proper provision for B. and her children, were the
considerations for the deed, and A. was entitled to
estates, yielding an income exceeding the amount of
that granted to trustees in favour of B, 17

Restraint against anticipation, in gift of real
estate to married woman in fee, for her separate
use, valid. Settlement of freehold house on mar-
ried woman in fee, for her separate use, but so
that she should not "sell, mortgage, charge or
incumber it." Lease granted by her of this house
to J. E, in trust for the husband, for thirty-one
years, at a very low rent, payable to husband
and wife, and the survivor of them, and heirs
and assigns of wife, J. E, not entering into any
covenants, invalid, as being an incumbrance on pro-
perty. Freehold estate devised to married woman
in fee, followed by declaration " that she should not
sell, mortgage, charge, or incumber the estate, and
that she should have, receive, and take such estate
for her own sole and separate use, benefit, and dis-
posal, and have the management thereof indepen-
dent of her husband, and the same should not be
liable to his debts, controul, or intermeddling,"
effectually settled on her, in fee, for her separate
use, but without power to sell, mortgage, charge, or
incumber it, during the coverture, 262

Where income of trust property was directed
by testator to be paid to such person as a mar-
ried woman should appoint, but not by way of
anticipation, and in default of appointment, to be
paid to her for her separate use, and her receipts
to be sufficient discharges,-restrictions as to antici-
pation held to extend to the whole gift; and assign-
ment by married woman, not by way of appoint-
ment, but out of the interest given to her in default
of appointment, invalid, notwithstanding the re-
ceipt clause did not contain negative words to direct
that her receipts only should be sufficient discharges,

361

See Lunatic. Power. Process. Receiver.
Settlement.

Bequest. See Legacy. Will.
Bill-Plaintiff files a replication, but serves no subpoena
to rejoin. Orders of May 1845 came into operation.
Plaintiff not proceeding in cause, proper course is
for defendant to move that plaintiff do file a repli-
cation in form of 93rd Order within a limited time,
or, in default, that bill stand dismissed, 31