* decease of J. C. to the issue of J. and "A. C. in such shares and proportions "as the said J. should appoint; and
for want of such appointment, to go "to such children equally, share and "share alike; and for default of such "issue to the heirs, executors and ad- "ministrators of said J. during said "leases the money, or the lands agreed to be purchased therewith, "to go to the issue of said J. and A. "in such shares and proportions" as there directed; "and for want of such "appointment to be equally divided 66 among such children, share and "share alike; and if no children of "said marriage, or all should die be- "fore twenty-one," then a power to dispose of said money. Issue was con- strued children, and the issue of J. and A. took the absolute interest in the chattel property, and a quasi fee in the freehold property. Campbell v. Sandys,
See MARRIAGE ARTICLES, 1. PAPIST, 1, 2, 3. REGISTRY, 4.
1. A bond is given by a trader, previous to his marriage, to a trustee, and by marriage settlement of the same date it is covenanted that the sum men- tioned in the bond is to be payable only in the event of the wife surviving the husband; and it is also covenanted
that in case of the husband failing in his circumstances, but not otherwise, the trustee shall sue on the bond. The husband becomes bankrupt living the wife. The trustee ought not to be ad- mitted a creditor. Matter of Mur- phy, a Bankrupt, 44 But the wife's own fortune may be thus settled, (Vid. infra. 9.) 47 A contract to make a legal debt not enforceable till death or bankruptcy is a fraud on the bankrupt laws; it not being possible to enforce it against the debtor except in the character of bankrupt. Ex parte Henecy, (cit.) 47
Equitable as well as legal debts are proveable in bankruptcy,
A bankrupt, pending his examination, is protected from an arrest, made by virtue of an attachment, issued for a contempt in not lodging money in court pursuant to a decree. Matter of M'Williams, a Bankrupt,
169 6. Though the form of the process be criminal, yet if it issue to compel pay- ment of a debt, it is an arrest under the statute 11 and 12 Geo. 3, c. 8, sect. 28, ibid.
7. Every mode by whor: a debt, whether arrest a bankrupt
which a creditor can
in law or equity, comes within the pro- tection of the bankrupt act, ari 175 8. Executrix 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 res pect of this admission, and may be proved under a commission of bank- ruptcy issued against him, 173 9. A trader on his marriage receives 6007. his wife's fortune, and gives a bond for 1,000l. to a trustee, the inter- 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- pal among the children of the mar riage. On his bankruptcy, the claim of the trustee to be admitted a credi- tor on behalf of the wife, for interest, allowed as far as the 600l. but not for the remaining 4001. Matter of Meag her, a Bankrupt,
10. A creditor coming in to prove his debt after a dividend made, (provided the delay was not fraudulent, but ow- ing to accident or unavoidable circum- stances) shall be put on a footing with the other creditors, before any further dividend is made. Matter of Whelan, a Bankrupt, 242 11. 7. holds shares in a trading compa- ny in trust for W, who by his will ap- points 7. his residuary legatee: T. continues in possession of the shares and becomes bankrupt. The shares are not within the meaning of the bank. rupt, act 11 and 12 Geo. 3, c. 8, 8, 9, inasmuch as T. is himself the true "owner and proprietor thereof," sub- ject however, to the debts and legacies of W. Joy v. Campbell, 12. The object of that clause in the bank- rupt act is, to prevent deceit by a trader from the visible possession of property to which he is not entitled: that is, where the possession is not in the true owner, but in one whom the true owner unconscientiously permits to have it,
336 13. That credit has been given on the foot of the property does not bring the case within the act, 14. The effect of the ninth section 11 and 12 Geo. 3, c. 8, is not a forfeiture of the property by the owner,
BARRON ANDяFEME.
1. Executrix marries, and she and her husband admit assets in answer to a bill filed against them. The assets become a debt of the husband in respect of this admission, and may be proved under a commission of bankruptcy is- sued against them. Matter of M'Wil- liams, a Bankrupt,
And if the assets of the original testa- tor remained in the hands of the hus- band, and went to his executors in she- cie, an action at law might be maintain- ed for them,
Feme executrix commits waste before coverture; the husband shall not be charged at law after coverture; and equity will not vary this rule at law on the ground of his having or not having received a portion with his wife, 263 Administration taken by a feme covert must be presumed taken with the pri- vity and assent of the husband, 266 See BANKRUPt, 1, 2, 7.
BILL TO PERPETUATE
TESTIMONY,
CASES DOUBTED, DENIED, OR OVERRULED.
183 1. Acherly v. Vernon, 1 P. Wms. 173, doubted,
2. Feme covert obtains administration and the goods are wasted during the coverture; the husband dies; his as- sets are chargeable in equity for the waste committed during the coverture. Adair v. Shaw, 243
2. Allan v. Bower, 3 Bro. C. C. doubt- ed,
3. Whether the wife surviving shall not 4. be charged, if the assets of the husband prove insufficient; Qu.? Semble. that 5. she shall,
Beynon v. Gollins 2. Bro. C. C. 323, and Dick. 697, erroneously reported,
10. Prichard v. Quinchant, as reported in Ambl. 147, probably incorrect, 296 11. Parteriche v. Powlett, 2 Atk. 383, imperfectly reported,
tator, the costs are to be paid out of the general fund. Pearson v. Pearson,
Where a defendant submits to answer exceptions before an order of refer- ence, plaintiff shall be entitled to the 241 stamp duties in addition to the usual costs. General Ruie,
In case such exceptions shall be re- ferred to the master, he shall tax to the plaintiff the costs of the excep- tions allowed, and to the defendant the costs of the exceptions disallow- 'lowed; and strike the balance,ibid. 4. It is a settled rule that the executors of an insolvent shall not have costs, 280
12. Salisbury v. Baggot, 1 Ch. Cas. 278, -378 doubted, 13. Tawney v. Crowther, 3 Bro. C. C. 318, doubted whether the facts support See PRACTICE, 11. the decree,
14. Weakly ex dem. Yea v. Bucknell, Cowp. 473, and Goodtitle v. Bailey, Cowp. 587, denied by Mr. Justice KEL- LY, (note)
69 15. Zouch v. Woolston, 2 Bur. 1136, pas- sages therein doubted,
CHOSE IN ACTION.
1. Bequest of "all my property in A. ex- "cept" a particular chose in action de- scribed in the will: other choses in action found in A. (such as mortgage deeds, bonds, and banker's receipts) do not pass, notwithstanding the ex- 318 ception. Vaughan v. Brook, 2. Bank notes would have passed, they being quasi cash,
1. Where a suit is occasionsd by a diffi- -culty arising from the will of the tes-
1. Tenant under a power to make leases without fine and at the best improved yearly rent that can be had, cove nants to lay out 2007. in improve- ments. This is not necessarily a fraud on the remainder-man, provided the rent be the best that can be got. But if it be colourable at the beginning, or be afterwards used fraudulently, a court of equity will take care that it shall not prejudice. Shannon v. Brad- 0150072 street,
See INDEMNITY, 1, 2.
1. In proceedings by creditors, all the creditors have a right to the benefit of 156 the diligence of any of them, 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, 3. So, although an incumbrancer were not 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- rect that such bill should be taken as filed at the same time with the for- ibid. mer,
behalf of creditors in the same man- 1. ner as mortgagee in possession. La- touche v. Lord Dunsany, Lord Dun- sany v. Latouche,
1. A decree obtained by fraud and im- position, shall have no effect. Ken- nedy v. Daly, 355, 375 2. A decree obtained without making parties of those whose rights are affect- ed thereby, is fraudulent and void as to " those parties: And a purchaser under it, with notice of the defect, is not pro- tected by it. Giffard v. Hort, 386 3. Decree against a tenant in tail shall bind a remainder-man, $4. But the remainder-man may appeal or re-hear the cause,
409 * 5. Even creditors, not parties to the suit, but who came in under the decree, may appeal or re-hear: So, a person entitled in any way,
Equity cannot relieve by decreeing compensation for non-performance of an agreement; such relief must be sought at law, 25 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- petent to him to have laid that ground before the court of Law. Bateman v. Willoe, 201, 204 In cases where effectual cognizance cannot be taken at law, equity inter- feres; as, in complicated accounts. So, where a verdict is obtained by fraud, or where a party at law has possessed himself improperly of some- thing whereby he has an unconscien- tious advantage, Concealment of a material fact is a sufficient ground for equity to avoid a release obtained by the person whose duty it was to make the disclosure. Bowles v. Stewart, 209, 227 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 making M. a party (who in case of B's illegitimacy was heir at law to testa- tor:) Issue of devisavit vel non direct- ed; H. and B. proceed to the trial of that issue, M. taking no part in it: the issue found in the negative, and the bill dismissed in 1770. On a bill filed in 1776 by B. for the possession and title deeds, he has an equity against H's ever insisting on the will or the illegitimacy: and also against M's insisting on the illegitimacy, after hav- ing declined to contest it on the issue. 413, 426, 436 Bond v. Hopkins,
m2, commanding judges to seal a bill of exceptions, does not lie where the ex- ception taken is to an order of a court of law amending one of its own re- cords. Lessee of Lawlor y, Murray,
2. Nor to any order made upon motion,
ibid. 3. Wherever any matter is capable of being brought on the record, and the court refuses to allow it to be so brought, and this refusal does not in its nature come upon the record, though if the thing were allowed, that matter would appear upon the re- cord; this is the proper subject of a bill of exceptions, See PRACTICE, 3, 4.
TOR. EXECUTOR AND ADMINISTRA-
1. A. advertised lands to be let for three lives or thirty-one years; B. entered into a written agreement for a lease, but in the agreement, the term for which the lease was to be made, was 1. not mentioned: There being no refer- ence in the agreement to the adver- tisement, parol evidence was not ad- missible to connect the one with the other, so as to ascertain the term. Secus, if the agreement had referred to the advertisement. Clinah v. Cooke, 22, 33 2. If in an agreement sought to be speci- fically executed, there be an omission, either by mistake or fraud, it is com- petent for a defendant to shew that omission by parol evidence, as matter of defence, and to rebut the plaintiff's equity. But it seems that a plaintiff in similar circumstances cannot do so, 38, 39.
3. An attested copy of the memorial of the assignment of a judgment is evi- dence of the fact of the assignment. Hobhouse v. Hamilton,
4. An attested copy of the memorial of 3. the registry of a deed is evidence of the fact of the registry: but if the me- morial be used as evidence of the con- tents of the deed, the original must be ibid. produced,
EXCEPTIONS, (BILL OF),
1. The writ grounded on the stat. Westm. VOL. I.
A lease pur auter vie to one, his exe- cutors and administrators; the execu- tor does not take as special occupant, Sembl.
T. and his partners, together with W. give securities to C. for the proper debt of 7. W. dies, leaving and C. his executors, and T. his residuary legatee; and leaving a sum of money under the controul of C. C applies this money to the payment of the se- curities given by T. and Co. and by with W.; and debits W.in account the amount and on settling with T. as executor of W., C. hands him over these securities, and pays him, as re- siduary legatee the balance due to the estate of W. C. shall be answerable to the creditors and legatees of W., on failure of T., as well for the sum paid to 7. as that retained by C. Joy 328, 340 v. Campbell,
Executors join in a receipt for money which is under the controul of both : both shall be responsible, though the money be actually received only by one; for it amounts to a direction by the other to pay his co-executor. Se- cus, if the signing be of necessity, and the money not under the controul of $41 both,
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