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** decease of I. C. to the issue of J. and tllat in case of the husband failing in
" A. C. in such shares and proportions his circumstances, but not otherwise,

as the said J. should appoint ; and the trustee shall sue on the bond. The
“' for want of such appointment, to go husband beconies bankrupt living the
“ to such children equally, share and wife. The trustec ought not to be ad-
66 share alike ; and for default of such mitted a creditor. ,, Matter of Mur.
66 issue to the heirs, executors and ad. phy, a Bankrupt,
“ ministrators of said I. during said 2. But the wife's own fortune may be
“ leases : the money, or the lands thus settled, (Vid. infra. 9.) 47

agreed to be purchased therewith, 3. A contract to make a legal debt not
“ to go to the issue of said J. and A. enforceable till death or bankruptcy is
« in such shares and proportions” as a fraud on the bankrupt laws; it not
there directed ; " and for want of such being possible to enforce it against the
“ appointment to be equally divided debtor except in the character of

among such children, share and bankrupt. Ex parte Henecy, (cit.)
:* share alike; and if no children of
" said marriage, or all should die be- 4. Equitable as well as legal debts are
“fore twenty-one," then a power to proveable in bankruptcy,

dispose of said money, Issue was con- 5. A bankrupt, pending his examination,
strued children, and the issue of J. is protected from an arrest, made by:
and A. took the absolute interest in virtue of an attachment, issued for a
the chattel property, and a quasi fee contempt in not lodging money in court
in the freehold property. Campbell v. pursuant to a decree. . Matter of

281 M Williams, a Bankrupt, 169

6. Though the form of the process be
PAPIST, 1, 2, 3.

criminal, yet if it issue to compel pay-

ment of a debt, it is an arrest under

the statute 11 and 12 Geo. 3, f8
sect. 28,


7. Every mode by which a creditor can

arrest a bankrupt

t for a debt, whether

in law or equity, comes within the pro-

tection of the bankrupt actsoo1 175

8. F.xecutrix marries, and her husband

and she admit assets in answer to a
bill filed against them. The assets
become a debt of the husband in rest

pect of this admission, and may be

proved under a commission of bank-
ruptcy issued against him,

9. A trader on his marriage receives

6001. his wife's fortune, and gives a

bond for 1,000l. to a trustee, the inter
See CHOSE IN Action, 2.

est payable to himself for life if he

shall continue solvent, but in case of

his death or insolvency, the interest

to his wife for her life, and the princi-
1. A bond is given by a trader, previous pal among the children of the mar-

to his marriage, to a trustee, and by riage." On his bankruptcy, the claim
marriage settlement of the same date of the trustee to be admitted a credi-
it is covenanted that the sum men- tor on behalf of the wife, for interest,
tioned in the bond is to be payable only allowed as far as the 6001. but not for
in the event of the wife surviving the the remaining 4001. Matter of Meag
husband; and it is also covenanted her, a Bankrupt,



10. A creditor coming in to prove his 4. Feme covert executrix shall be an.
debt afier a dividend macle, (provided swerable to creditors at law, after the
the delay was not fraudulent, but ow- coverture, for waste committed by the
ing to accident or unavoidable circum- husband during the coverture, 257
stances) shall be put on a footing with 5. The law has no form of action by which
the other creditors, before any further the assets of the husband of a feme ex-
dividend is made. Matter of Whelan, ecutrix are chargeable for a devastavit
a Bankrufit,


committed by him during the cover-
11. T. bolds shares in a trading compa- ture,

ny in trust for W, who by his will ap- 6. But equity will relieve in such case,
points 7, his residuary legatee : T. on the principle that the property came
continues in possession of the shares into the husband's possession bound by
and becomes bankrupt. The shares a trust,

are not within the meaning of the bank. 7. And if the assets of the original testa-
osrupt, act 11 and 12 Geo. 3, c. 8, s. 9, tor remained in the hands of the hus-
inasmuch as T. is himself the true band, and went to his executors in she.
"owner and proprietor thereof, sub- cie, an action at law might be maintain-
ject however, to the debts and legacies ed for them,
of W. Joy v. Campbell, 328 8. Feme executrix commits waste before
12. The object of that clause in the bank- coverture; the husband shall not be
es rupt act is, to prevent deceit by a charged at law after coverture ; and

trader from the visible possession of equity will not vary this rule at law
property to which he is not entitled : on the ground of his having or not
that is, where the possession is not in having received a portion with his
the true owner, but in one whom the wife, O ATT

true owner unconscientiously permits 9. Administration taken by a feme covert
to have it,

336 must be presumed taken with the pri-
13. That credit has been given on the vity and assent of the husband, 266
foot of the property does not bring the See BANKRUPT, 1, 2, 7.

case within the act,


14. The effect of the ninth section 11 (2:01 B

and 12 Geo. 3, c. 8, is not a forfeiture - samt


son 5
of the property by the ownergo 47 538 gie


See PRAGTIGE, 13, 14,

es $119
1. Executrix marries, and she and her 2018 SC STOROUTEROS
husband admit assets in answer to a
bill filed agaist them. The assets
become a debt of the husband in respect
of this admission, and may be proved CASES DOUBTED, DENIED,
under a commission of bankruptcy is-

sued against them. Matter of M Wil-
liams, a Bankruht,

183 1. Acherly o. Vernon, 1 P. Wms. 173,
2. Feme covert obtains administration doubted,

and the goods are wasted during the 2. Allan v. Bower, 3 Bro. C. C. doubt-
coverture; the husband dies; his as- ed,

sets are chargeable in equity for the s. Beynon v. Gollins 2. Bro. C. C. 323,
waste committed during the coverture. and Dick. 697, erroneously reported,
Adair v. Shaw,

3. Whether the wife surviving shall not 4. Blakeway v. Earl of Strafford, 2 Eq.

be charged, if the assets of the husband Abr. 579, doubted,
prove insufficient ; Qu.? Seinble. that 5. Campbell v. Leach, Ambl.749, a pas-
she stall,
ibid. sage there doubted,


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6. Carter v. De Brune, Dick. 39 over- tator, the costs are to be paid out of

240 the general fund. Pcarson v. Pearson;
7. Doe, ex dem. Blake v. Luxton, 6 Term

Rep. 292, a dictum of Lorp KENYON, 2. Where a defendant submits to answer

294 exceptions before an order of refer-
8. Hyde v. Foster, Dick. 110, overruled, ence, plaintiff shall be entitled

240 stamp duties in addition to the usual
9. Maxwell v. whettenhall, 2 P. 'Wms. costs. General Rute;

27, (4th point) doubted,

11 3. In case such exceptions shall be re-
10. Prichard v. Quinchant, as reported ferred to the master, he shall tax to

in Ambl. 147; probably incorrect, 296 'the plaintiff the costs of the excep-
11. Parteriche v. Powlett, 2 Atk. 383,

tions allowed, and to the defendant
imperfectly reported,

35 the costs of the exceptions disallow-
12. Salisbury v. Baggot, 1 Ch. Cas. 278, lowed, and strike the balance, ibid.

1,378 4. It is a settled rule that the executors
13. Tawney v. Crowther, 3 Bro. C. C. of an insolvent shall not have costs, 280

318, doubted whether the facts support See PRACTICE, 11.
the decree,

14. Weakly ex dem. Yea v. Bucknell,

Cowr: 473, and Goodtitle v. Bailey, so COVENANT.

Cowp.587, denied by Mr.Justice Kel-
''LY, (note)

69 1. Tenant under a power to make leases
15. Zouch v. Woolston, 2 Bur. 1136, pas-

without fine and at the best improved
sages therein doubted,

66, 71

yearly rent that can be had, cove-

nants to lay out 2001. in improve-

ments. This is not necessarily a fraud

on the remainder-man, provided the
1. Bequest of all my property in A.ex- rent be the best that can be got. But

cept” a particular chose in action de. if it be colourable at the beginning, or
scribed in the will : other choses in be afterwards used fraudulently,
action found in A. (such as mortgage court of equity will take care that it
deeds, bonds, and banker's receipts) shall not prejudice. Shannon v: Brads
do not pass, notwithstanding the ex- street,

ception. Vaughan v. Brook,- 318 See INDEMNITY, 1, 2. *1911910 911 2n
2. Bank notes would have passed, they
being quasi cash,


CONSTRUCTION OF DEEDS, 1. In proceedings by Creditors, all the

creditors have a right to the benefit of

the diligence of any of them, 156
See ARTICLES, 1, 2.

2. Bill filed by a creditor on behalf of

himself and other creditors, and a re-

ceiver appointed; the receiver shall

not be discharged upon the consent of

the plaintiff, against the consent of an

incumbrancer, who is a party defen-

dant. Largan v. Bowen, 507 296

3. So, although an incumbrancer were
See EVIDENCE, 3, 4.

a party, nor had proceeded in the

suit, and were obliged to file a new

bill, yet, Sembl. the court would not

discharge the receiver, and would di-
T: 'Where a suit is occasionsd by a diffi- rect that such bill should be taken as
culty arising from the will of the tese filed at the same time with the for.


duty it was to make the disclosure.
may appeal or re-hear: So, a person Bowles v. Stewart,


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4. Creditors are not restrained from -

proceeding at law merely because
there is a bill filed by other creditors,

until there is a decrec; but as soon as
a decree is obtained, equity considers 1. The legal title must prevail in eject-
it as a judgment in favour of all the
creditors, who shall be paid according

ment against an equitable title; and it

is not competent to a court of law to
to their priorities as they stand, 299

decide upon the distinction between a

clear equity and a doubtful equity.

Per KELLY, J. Lord Massey v.

Touchstone, (note)


* 1. A custodee shall account in a suit on
behalf of creditors in the same man- 1. Equity cannot relieve by decreeing
ner as mortgagee in possession. La-

compensation for non-performance of
touche v. Lord Dunsany, Lord Dun-

an agreement; such relief must be
sany v. Latouche,

137, 154
sought at law,

2. In order to found a title to relief in

equity, it is not sufficient to shew that

injustice has been done; it must be

shewn that the court is warranted to
interfere. And equity is not warrant-

ed to interfere, on the ground that an

unconscientious verdict has been had

at law against plaintiff, if it was com-
2. A decree obtained by fraud and im-

petent to him to have laid that ground
position, shall have no effect. Ken.' before the court of Law. Bateman v.
nedy v. Daly,

355, 375

201, 204
2. A decree obtained without making 3. In cases where effectual cognizance
parties of those whose rights are affect-

cannot be taken at law, equity inter-
ed thereby, is fraudulent and void as to

feres ; as, in complicated accounts.
those parties : And a purchaser under

So, where a verdict is obtained by
it, with notice of the defect, is not pro- fraud, or where a party at law has
tected by it. Giffard v. Hort, 386

possessed himself improperly of some-
3. Decree against a tenant in tail shall

thing whereby he has an unconscien-
bind a remainder-man,

tious advantage,

4. But the remainder-man may appeal 4. Concealment of a material fact is a
or re-hear the cause,


sufficient ground for equity to avoid a
5. Even creditors, not parties to the suit, release obtained by the person whose
but who came in under the decree,

209, 227
entitled in any way,

409 5. Suppression of deeds under particular

circumstances, is a ground for the in-

tervention of equity to prevent the

operation of a fine, though levied by
the person having the legal estate,

Sembl. But it is clearly so in the case

of a trustee, and that, notwithstanding
any length of time,


6. A bill filed in 1757, by H. pretending to

be a devisee, charging that B. the only

son of testator, was illegitimate, and 2, commanding judges to seal a bill of
making M.a party (who in case of B's exceptions, does not lie where the ex-
illegitimacy was heir at law to testa- ception taken is to an order of a court
tor:) Issue of devisavit vel non direct- of law amending one of its own re-
ed; H. and B. proceed to the trial of cords. Lessee of Lawlor y, Murray,
that issue, M, taking no part in it: the

issue found in the negative, and the 2. Nor to any order made upon motion,
bill dismissed in 1770. On a bill filed Sembl.

in 1776 by P. for the possession and 3. Wherever any matter is capable of
title deeds, he has an equity against being brought on the record, and the
H's ever insisting on the will or the court refuses to allow it to be so
illegitimacy: and also against M's brought, and this refusal does not in
insisting on the illegitimacy, after hav- its nature come upon the record,
ing declined to contest it on the issue. though if the thing were allowed, that
Bond v. Hopkins, 413, 426, 436 matter would appear upon the re-

cord; this is the proper subject of a
bill of exceptions,


See PRACTICE, 3, 4.
1. A. advertised lands to be let

for three
lives or thirty-one years; B. entered EXECUTOR AND ADMINISTRA-
into a written agreement for a lease,

but in the agreement, the term for
which the lease was to be made, was 1. A lease pur auter vie to one, his exe-
not mentioned: There being no refer- cutors and administrators; the execu.
ence in the agreement to the adver- tor does not take as special occupant,
tisement, parol evidence was not ad- Sembl.

missible to connect the one with the 2. T. and his partners, together with W.
other, so as to ascertain the term. give securities to C. for the proper
Secus, if the agreement had referred debt of 7. W. dies, leaving Irgand
to the advertisement. Clinan v. Cooke, C. his executors, and T. his residuary

22, 33
legatee ; and leaving a sum

of money
2. If in an agreement sought to be speci- under the controul of C. C applies

fically executed, there be an omission, this money to the payment of the se-
either by mistake or fraud, it is com- curities given by T. and Co. and by
petent for a defendant to shew that W.; and debits W. in account with
omission by parol evidence, as matter the amount: and on settling, with T.
of defence, and to rebut the plaintiff's as executor of W., C. hands him over
equity. But it seems that a plaintiffin these securities and pays him as re-
similar circumstances cannot do so, siduary legatee the balance due to the

38, 39 estate of W.-€, shall be answerable
3. An attested copy of the memorial of to the creditors and legatees of W.,

the assignment of a judgment is evi. on failure of T., as well for the sum
dence of the fact of the assignment, paid to

T. as that retained by C. Joy
Hobhouse v. Hamilton,
207 v. Campbell,

328, 340
4. An attested copy of the memorial of 3. Executors join in a receipt for money

the registry of a deed is evidence of which is under the controul of both :
the fact of the registry : but if theme- both shall be responsible, though the
morial be used as evidence of the con-

money be actually received only by
tents of the deed, the original must be one ; for it amounts to a direction by

ibid. the other to pay his co-executor. Se

cus, if the signing be of necessity, and
EXCEPTIONS, (BILL OF) the money not under the controul of


1. The writ grounded on the stat. Westm.
Vol. I.


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