1. If a father, having a power to ap-
point to a child, without making an
actual appointment, concur with the
child in making a settlement which
cannot have effect unless through a
previous apppointment, that very
disposition is considered, first, as
an appointment to the child, and
then as a settlement by the child
of the property appointed; but
if the intention of the parties be,
not to execute the power of ap-
pointment, but to operate on the
estates in default of appointment,
and if the transaction considered as
an appointment would be a fraud
on the power, the Court will not
imply an appointment, none such
having been actually made. Thomp-
son v. Simpson.
110
2. Strong suspicion that an appoint-
ment by a father to his son was for
the benefit of the father, and a
fraud upon the power of appoint-
ment, is not sufficient to avoid the
transaction. Hamilton v. Kirwan.
LIMITATIONS, Statutes of, 4, 5.
RECEIVER, 3.
A., being seised in fee of Ardgullen,
confessed a judgment, and after-
wards upon the marriage of his son
B., conveyed the lands to the use
of B. for his life, remainder to the
issue of the marriage; and cove-
nanted that they were free from in-
cumbrances. By his will he gave
several legacies, and died, having
appointed B. his executor, and
leaving assets more than sufficient
to pay all his debts and legacies.
Upon the marriage of C., one of
the legatees, a settlement was exe-
cuted, whereby, after reciting the
will of A., and that the legacy of
C. was then in the hands of B. as
executor, C. assigned the legacy to
trustees, of whom B. was one, upon
trust for C. for her life, and, after
her decease without issue, upon
trust for the benefit of the judg-
ment creditor and his issue.
In 1835 the judgment creditor
instituted a suit for payment of
his judgment out of the real and
personal assets of the testator. In
1836, C. and her husband (there
being no issue of their marriage)
instituted another suit against B.,
and the persons entitled under
their settlement in default of issue
of their marriage, for the appoint-
ment of new trustees, and an ac-
count of the trust funds; and in
that suit an order was made on the
consent of B., but without notice
to the persons entitled in default
of issue of C. and her husband, that
B. should transfer to the credit of
that cause, stock to the value of
C.'s legacy, without prejudice to the
rights of the parties; and it was
ordered that the dividends thereof
be paid to C. The stock was ac-
cordingly transferred by B., who
purchased same with the produce
of the sale of part of the assets of
the testator, which were outstand-
ing in specie when the bill of 1835
was filed. The assets having been
wasted, the children of B., claiming
as specialty creditors of A. under
his covenant, filed a bill in 1840, to
have the stock standing to the cre-
dit of C.'s cause applied in payment
of the judgment debt :-Held, that
the stock had not been appropriated
to the payment of C.'s legacy, either
as against the specialty creditors or
the other legatees of A., but that
it still continued assets for payment
of his debts and legacies. Jennings
v. Bond.
Two persons, equally entitled to cer-
tain unenclosed slobs, agreed to
allot certain parts thereof to each
of them, in severalty; and to refer
it to arbitrators to award what por-
tions of the unallotted slobs should
be allotted to each of them for
owelty of partition:-Held, that the
insufficiency of the unallotted slobs to
compensate one of the parties for the
deficiency of his part of the allotted
lands, arising from a matter which
occurred subsequently to the ar-
rangement between them, but which
was in their contemplation at the
time, did not give him an equity to
have compensation out of the lands
allotted to the other party.
An agreement to refer, and arbi-
trators named, and a covenant not
to sue, and a power to examine
witnesses upon oath, and to make
the submission a rule of Court, pre-
vent a party from filing a bill with
a view of withdrawing the case from
the arbitrators.
A party to a suit cannot set up
an objection which grew out of his
own conduct.
Two arbitrators were named in
a submission to refer, and they, or
other the persons appointed in their
place, were, before they proceeded,
to appoint a third arbitrator; any
two of the arbitrators for the time
being might at any time, or from
time to time, make awards or orders,
provided the last of such awards
should be made before the 1st of
July, 1843, or before such other
later time as any two of the arbi-
trators for the time being should
appoint and any two of the arbi-
traters for the time being might
extend the time for making the
last award, whether such time should
have previously expired or not.
And it was provided that X. should,
as soon as conveniently might be,
appoint an umpire; and that if no
two of the arbitrators for the time
being should be able to agree in
making an award or order concern-
ing any matter which ought to be
awarded or ordered by them, such
matter should be awarded or ordered
by the umpire; aud if at any time
before the several powers, authori-
ties, covenants and provisions, in
the deed of submission, were execu-
ted, either of the arbitrators named
by the parties should refuse to act,
the party whose arbitrator so refused
should appoint another in his place;
and if he did not do so within four-
teen days, then that the third arbi-
trator, and, if none such, the umpire,
should appoint such arbitrator.
The plaintiff's arbitrator refused
to act, and nothing was done in the
matter of the reference before the
first of July, 1843.
The plaintiff
having after that day refused to ap-
point an arbitrator, the defendant
procured X. to appoint an umpire,
who appointed an arbitrator on
behalf of the plaintiff, and the two
arbitrators appointed a third, and
then the time was extended by the
three arbitrators :-Held, that the
time was duly extended. Dims-
dale v. Robertson.
See APPOINTMENT, 1.
Lands were limited to a father for
life, with a power of appointment
amongst his children; and in de-
fault of appointment, to the children
as tenants in common in fee. The
father and the eldest son (there
being several children) joined in a
fine and recovery of the estates;
and being advised that the conse-
quence of their act was to vest the
fee in the father alone, he, by lease
and release, conveyed the lands to
a purchaser, and received the entire
amount of the consideration money
CHILDREN.
See APPOINTMENT, 1, 2.
DEED, 6, 7.
WILL, 3.
CHOSE IN ACTION.
See LEGACY.
COMMISSION TO EXAMINE
WITNESSES.
Where a commission to examine wit-
nesses issues at the instance of one of
the parties to the suit, the other not
concurring in it, the party issuing it
is bound to pay all the expenses of
the commissioner examiner, even
though the other party should cross-
examine the witnesses of the
person
issuing the commission; but if the
opposite party examines under the
commission on the direct, he is
bound to pay the commissioner for
the examination and cross-examina-
tion of his own witnesses. Earl of
Lucan v. O'Malley.
CONSENT.
See ASSENT.
DEED, 6.
See BANKRUPTCY.
DEED, 7.
POWER, 5.
CONVERSATIONS.
See PLEADING, 6.
TRUSTEE AND CESTUI QUE TRUST.
See GENERAL ORDERS, 2.
COMMISSION TO EXAMINE.
LEASE FOR LIVES RENEWABLe, 1.
1. The costs of redocketing a recent
judgment not allowed in a petition
matter. Macken v. Newcomen. 16
2. A creditor instituted a suit against
the real and personal representa-
tives of the principal debtor, and
against one of the sureties, omitting
the other surety, and obtained a
decree to account. He afterwards
filed a supplemental bill against the
representatives of the other surety;
but inasmuch as they did not de-
rive any benefit from the proceed-
ings in the original suit, and as
the creditor might have framed his
original suit so as to have had in it
the relief sought by the supple-
mental; Held, that the plaintiff was
not entitled, as against the repre-
sentatives of the second surety, to
the costs of the original suit. Cuffe
v. Young.
3. If a trustee has not misconducted
himself, even though the Court
punish him, as by making him pay
4. A decree for the delivery of the
possession of lands and title-deeds,
and payment of money, was made,
with costs to be paid by the de-
fendants. One of them having
performed all that he was directed
by the decree to do except paying
the costs, died before the costs
were taxed-Held, that there
could be no revivor for the costs.
The general rule is, that there
can be no revivor for untaxed costs;
and whether the abatement is caused
by the death of the party to pay or
the party to receive the costs is
immaterial. Bowyer v. Beamish.
|