this: "You had better settle with me upon fair terms, because there is a third party who may step in and take all from you." Now, if two parties deal with each other, the one as an encumbrancer on an estate, the other as the owner of the estate subject to that encumbrance— as was clearly the case in the present instance-it cannot be alleged that such a dealing does not amount to an acknowledgment of title, because there may be an infirmity in that title which would give the estate to a third party. Per Sir E. Sugden, C., in The Incorporated Society v. Richards 197 10. The mere issuing of a scire facias 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. Per Pennefather, B., in Brown v. Lynch 318 11. The admission of a debt by an insol upon the articles. Until the argument of this case I always considered the rule of law upon this subject to be perfectly settled, that when there is a settlement before marriage, the marriage of itself supplies a purpose which pervades the settlement, and amounts to a declaration of an intention that there should be a strict settlement. Because it would be a manifest absurdity, when a man agrees upon his marriage to settle his estate in such a way as to provide for his wife and children, to adopt such limitation as would leave it in his power to destroy that provision at any time. Per Sir E. Sugden, C., in Rochford v. Fitzmaurice 381 MASTER AND REMEMBRANCER AND THEIR REPORT. See EXECUTORS AND ADMINIS- vent in his schedule, subscribed by him 1. As to the last objection, namely, that and filed pursuant to the provisions of the 10th section of the old Insolvent Act (1 & 2 G 4, c. 59), is a sufficient "acknowledgment in writing" to save the debt from being barred by the late Statute of Limitations (3 & 4 W. 4, c. 27, s. 40), within twenty years after the date of such admission. The decision in Hill v. Stawell, (2 Jebb & Sy. 389); S. C. 2 Ir. Law Rep. 302, questioned. Barrett v. Bermingham 537 12. The appointment of a receiver over the estate of a minor does not prevent the Statute of Limitations from running against an encumbrancer on that estate, who is not a party to the order appointing him, although the report, finding that a receiver should be appointed, states that the estate is subject to the encumbrance in question. C. Kyme v. Dignam 562 MARRIAGE AND MARRIAGE SETTLEMENTS. See also, AGREEMENT AND CON- ESTATE, 9. INFANT. the Master, in taking the account of the septennial fines and interest which the petitioners were liable to pay to the minor, and which he was entitled to set off against the amount of monthly fines which he was liable to pay to them, has added the six months' grace to every successive term of seven years, instead of limiting such grace to the first seven years, I think the principle of calculation adopted by the Master has been too long settled to be now disturbed. The practice of estimating each life at seven years, and adding to each seven years the period allowed for renewal by the agreement of the parties, has been recognised and established by repeated decisions, and I have no difficulty in overruling the objection to it. Per Sir M. O'Loghlen, M. R., in In re Colthurst See Morton v. Archbold, and Wilson v. St. Leger 457, n. 454 2. A party quarrelling with the report of bad title, should move to set it aside, not to send it back to the Officer to be received; and the notice of motion ought to state the grounds upon which the party seeks to set aside the report. E. E. Vincent v. Thwaites 689 Then comes the question, what was the intention of the parties, as expressed 3. It was referred to the Master to inquire and report whether there there was any and what sum due on foot of a certain 537 4. Where a necessary party is not before the Court, a report of good title, "the plaintiff undertaking to file a supplemental bill and obtain a decree against such party," is irregular. R. Plumtre v. O'Dell 602 MINOR. See INFANT. INSPECTION, &c., of DEEDS, 4. MESNE RATES. MISJOINDER. See PLEADING, VII. MONEY. See FUND IN Court. MORTGAGE. See ESTATE, 2, 5, 6 & III. PLEADING, 13. SALES JUDICIAL, 5. A puisne mortgagee filed a bill for a foreclosure and sale against a prior mortgagee, in possession. By the report made pursuant to the decree to account, it appeared doubtful 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 his 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 if the plaintiff elected to take a decree for a sale, he should secure to the prior mortgagee the full amount of his debt and costs of suit. E. E. Rotheram v. Webb 52 2. 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. Ibid 3. Per Pennefather, B.-The objection that the premises are of insufficient 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. Ibid 4. Quære.-Is a mortgagee entitled to the costs of a foreclosure suit, prosecuted by him after a notice from the assignee of the mortgagor, a bankrupt, requiring him to proceed to sell the mortgaged premises under the general order in bankruptcy of 1832. E. E. Bernard v. Sadlier 61 5. Held, that the mortgagee was entitled to the costs of the suit; the notice from the assignee not offering to pay him the 6. 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 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, Semble, he could not have a sale of the equity of redemption. C. Lawless v. Mansfield 113 7. O'S. being seized in fee of W. and pos- : ment making himself tenant for life) does not bind the remainder-man, because it accrued during the life of the tenant for life that, however, cannot be sustained for a moment; it is contrary to the settled rules of the Court. If a man mortgage his estate, he cannot, by entering into a settlement afterwards, and creating limited estates, give to the owners of those estates rights as against the mortgagee which he had not himself. mortgage binds the whole inheritance, and the mortgagee is entitled to his principal and interest, however the equity of redemption may be parcelled out among different owners. Per Sir E. Sugden, C., in Wrixon v. Vize The 468 Therefore, by analogy (to the case of a decree of foreclosure against an infant), as well as by authority, it is clear that the account (in a mortgage cause) taken in the absence of the remainder-man is not binding generally upon him, so as altogether to conclude him; but primâ facie, it is binding on him, and he is at liberty to surcharge and falsify it. If that be so in general, a fortiori it is so here; because if the parties had registered the settlement, the mortgagee would have been able to ascertain who were the parties interested under it, and to have brought them before the Court. Per Sir E. Sugden, C., in ibid 470 10. The earlier cases, as I have shewn, require a party who claims under the mortgagor, seeking to be relieved against an account taken in his absence, to impeach that account, by shewing specific errors. I do not apprehend, however, that this is the rule of the Court now, but that the course is to direct the account to stand-giving the absent party liberty to surcharge and falsify; because as the account does not bind him absolutely, he ought to have liberty to surcharge and falsify, without being compelled to establish specific errors in it in the first instance. If, therefore, I were to decide now upon the general princiciple, I should not follow the decision in Dick v. Butler (1 Mol. 32), but should hold that the remainder-man was only entitled to surcharge and falsify the ac counts already taken. Per Sir E. Sugden, C., in Wrixon v. Vize 471 11. A party entitled to a renewable freehold conveyed it to another, for securing a sum of money and interest. The conveyance contained a covenant by the borrower, to pay the money whenever he should be required; and a proviso, that on payment of the money at any time, the conveyance should be void, and the lender would re-convey. A bond and warrant of attorney were executed by the lender for securing the money, and judgment was entered on them.Held, that the proviso for redemption was qualified by the covenant for payment of the money, and that the lender was entitled to a foreclosure and sale. C. Balfe v. Lord 648 12. The objection by a prior mortgagee, brought before the Court in a foreclosure suit, that the plaintiff has not offered by his bill to redeem him, if valid, ought to be taken advantage of by demurrer. The Court will overrule it at the hearing. Ibid 13. The true nature of a Welsh mortgage is, that it is a conditional sale, that is that the lender is to receive the rents without limit, and whenever the borrower chooses to redeem he may do so, and upon payment of the money the mortgagee must re-convey, and he cannot foreclose a mortgage of that description, because there is no forfeiture at law. Per Sir E. Sugden, C., in ibid 652 OFFICERS OF THE COURT. Prima facie, the Crier and Tipstaff are entitled between them to the fee of one guinea upon the admission of Attornies; but the Court-keeper is not entitled to the fee of ten shillings and six-pence. The Secondary is entitled to a fee of one guinea, for swearing Attornies into office. Rev. Ex. In re Admission of Attornies 685 PARENT AND CHILD. See also, ESTATE, II. 2. A defendant cannot vary the title of the It is settled by several authorities, that a cause in a notice or affidavit used upon a motion in the cause. R. M'Kiernan v. Kernan 275 3. Where an application is made to extend gift of personal property to a parent and children generally, gives the property to all who are alive at the testator's death, as joint tenants. But if, however, there are words sufficient to shew an intention to that effect, it may be held to give a 1. life interest to the parent, with remainder to the children absolutely. Per Sir E. Sugden, C., in Heron v. Stokes 287 PAROL EVIDENCE. See EVIDENCE, I. PARTIES TO SUITS. See PLEADING, VII. PARTITION. See ESTATE, 20. PETITION. See JUDGMENT, 6. RECEIVER. TRUSTEE, II. PENAL COVENANT. See also, AGREEMENT AND CON- If there be a proviso in a contract for sale, that either party is to pay a particular sum m of money in case he do not complete it, there may be a specific performance of the contract notwithstanding. Therefore, where a party agrees to do an act, and binds himself if he do not to pay a sum of money, he cannot elect to pay that sum instead of doing the act which he had agreed to do. In the same way, if a man covenant not to do an act, or if he do to pay a particular sum of money, it would seem to follow, that he cannot elect to break his agreement and pay the penalty, Per Sir E. Sugden, C., in French v. Macale 574 6. A bill, stating new matter conformably to the 52nd General Order of 1834, is to be considered as one record with the original bill. Therefore, a party brought before the Court by it, cannot demur to it for want of equity, if there be sufficient in the two bills to sustain the case against him. C. Byrne v. Byrne 621 |