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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

ment against an equitable title; and it
creditors, who shall be paid according

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.
:.' PAPIST, 3.

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-

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
. - D.

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 y.
nedy v. Daly, . - - 355, 375 Willoe. - - - 201, 204
9. A decree obtained without making 3. In cases where effectual cognizance

Darties 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 shallthing whereby he has an unconscien-
• bind a remainder-man, - 407 tious advantage, - - - 205
4. But the remainder-man may appeal 4. Concealment of a material fact is a

or re-hear the cause, . 409 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, duty it was to make the disclosure.
may appeal or re-hear : So, a person Bowles v. Stewart, • 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
See PracTICE, 11.

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, -

See Relations, 3.

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


- 75
issue found in the negative, and the 2. Nor to any order made upon motion,
bill dismissed in 1770. On a bill filed Sembl.

. i ' ibid.
in 1776 by B. 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 have 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,

. .. 82

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. - - - - 289
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 T. W. dies, leaving Tand
to the advertisement. Clinun 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.,.. hands himover

equity. But it seems that a plaintiff in these securities and pays him as re-
* similar circumstances cannot do so, siduary legatee the balance due to the

38, 39 estate of W. f. 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 y. Hamilton,
207 v. Campbell,

3 28, 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
: produced, - ." . 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

both, . -

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

See ADMINISTRATOR pendente lite, 1 2. As to time for shewing cause against
? BARON and FEME, 1, 2, 3, 4, 5, 6, 7, conditional orders, (See Practice 6)
8, 9,

Costs, 4.

3. Personal interrogatories, when to be
settled by the master, (See Practice,

7) - - - . - ibid.
4. As to costs on exceptions, See Costa,
2, 3) -

. 241
• 5. On demarrer to the whole bill being

allowed, (See Practice, 11) - 304

1. A fine sur concessit begins to operate

as a bar only from the execution ;

Sembi. - - - - 228 1. A grand-father having taken the chil-
2. Fine and non-claim by a trustee to a dren of a son who had ruined himself,

person having notice of the trust, shall educated them entirely, and by his will
not bar the cestui que trust : It is gave the son an annuity, provided he
merely a conveyance. Kennedy v. did not interfere with the children,

Daly, - - - - 355, 379 and then gave legacies to the children.
3. One taking from a trustee, with no- Lord RATHURST held that the grand-
- tice, levies a fine to strengthen his father had put himself in loco parentis,
estate ; this shall not bar the cestui and decreed interest on the legacies, 5

379 2. So, per Lord Rosslyn, where a testa-
4. A person coming to a title which is tor gave legacies to the natural chil.

bound by an equitable right, cannot, dren of his son, payable at a future
by levying a fine, discharge his estate day, and gave no maintenance in the
from the consequences of that right, mean time; but gave directions how

380 they should be educated, and attempt-
5. Where a fine is levied upon a posses. ed to make testamentary guardians,

sion gained in such a way that the
title on which the equity attaches, is
not altered : or where the possession

is gained on a confidence, and it is at-
tempted to make title contrary to that 1. An inquisition taken in England under
confidence, a' fine and non-claim will a commission of lunacy issued there,
make no bar, - - • 581 is not sufficient to found a grant of

lands in Ireland. There must be an
FRAUDS, (STATUTE OF) inquisition and finding under the au-

thority of the great seal in Ireland.
See Agent,1,

Marter of the Duchess of Chandois,&
AGREEMENT, 3, 4, 6, 7, 8, 9,

lunatic, - - • - 301
10, 12,


1. Where a testamentary guardian has

not acted, the mode of proceeding in
order to have a guardian appointed is
by fetition; it is not necessary to file
a bill. Secus, if after acting, he has
misconducted' himself. OʻŘceffe v.

- - - . 106

1. Asto disolving injunctions, (See Prac-

tice, 1) -


tion, an answer is put in, swearing in

such a manner that an injunction can-

not be maintained on it; if the answer

be afterwards falsified, the court will
1. :1. covenants to indemnify lands settled

put the plaintiff in the same situation

as if the answer had been originally
on B. from certain debts, the interest

fair', - - - - - 308
• of which B. is afterwards obliged to

See LANDLORD and Tenant, 1, 2.
pay: B. is entitled under the cove- *

nant to come against the estate of A.
for the sums so paid for interest, with

interest thereon. Executors of Fergus
v. Gore, - - - - 107

2. B. had a right to claim whatever a
jury would have given in the shape of

damages, if an action had been brought
ou the covenant, - - - 109 See Costs. A


1. Purchase money remaining in the pur-

chaser's hands to pay off incumbrances,

shall bear interest. Hughes v. Kear-

hi ·ney, - -
1. An infant cannot avail himself of his :

- - - 134
infancy to excuse the non-assertion of

2. Interest on the arrear of an annuity

bequeathed to a married woman for
his right under an executory agree

her sole and separate use, not given,
ment made with his ancestor ; where

though the fund was productive, and
the immediate performance of his part

though there was a large residuum.An-
of the contract is essential to the inter-
est of the other contracting party. Grif-

derson v. Dwyer, , - - 301
fin v. Griffin, - - • 352


1. Tenant restrained from cutting turt See PRACTICE, 7.

1. To be settled by the master,
for sale, (his lease giving a right of
estovers only) notwithstanding an un-

interrupted practice for eighty years.
Lord Courtown v. Ward,.
2. Where a verdict at law has been ob.
tained against a defendant whoneglects

to apply for a new trial within the
time appointed by the rules of the court 1. A. taking an assignment of a judgment
of law, this court will not entertain a “ from a

from an assignee, is bound to look to
bill for an injunction on the ground that

the assignment to him : if he neglects
the plaintiff's demand was unconsci-

to do so, and it prove that such assign-
entious, or that it was subject matter

ment was in trust for the conusor, the
for an account: provided it was com-

judgment being satisfied, A.cannot set
petent to the party to lay those grounds
before the jury on the trial, or before

it up against creditors. But if A. took

it without knowing of the fraud, he
the court of law on motion for a new

shall be satisfied by the person, who
trial. Bateman v. Willoe, . 201

assigned to him,
3. Where, to a bill filed for an injunc-

- . . - 162
" See PAPIST, 3.




“ if she does not marry without the

« consent of her trustees, the sum of

“ 400l. one moiety, to be paid her upon

« her marriage with such consent, the

“ other moiety in one year after : but

< if said M. was then married or should

« marry without such consent, said

« sum to sink into his personal fortune."
1. The possession of a tenant even when

M. being unmarried, is not entitled

immediately either to principal or in-
abusing his right, or exercising it to an
extent not authorised by his tenure, is

terest : not to principal, because mas.
still the landlord's possession ; and the

riage is a condition precedent, and the

legacy therefore contingent until then :
allowance for the abuse for any length

nor to interest, because the legacy is
of time shall not give the tenant a right
to continue it, - - -

payable in fuiuro, and there is no suf-

2. Where there have been various deal-

ficient ground of implication that in-
ings between landlord and tenant, so as

terest was intended in the mean time.

Ellis v. Ellis, -
to produce an account too complicated

- - 1
to be taken at law; and the landlord

the landlord 2. Algacy out of a personal fund, be.


queathed generally, without assigning
has brought ejectment for non-payment
of rent, the tenant may file a bill, before

any time for payment, bears interest
judgment at law; for an account on

only from a year after the death of the

testator, though the fund out of which
the foot of those dealings, and to have

it is to be paid consist of stock and
the balance applied to the rent claim.

other matters yielding immediate pre-
ed to be due, and for an injunction.

fit. Pearson v. Pearson,
O'Connor v. Spraight, . - 305

- 10
3. In such case the tenant need not bring »

w bring 3. In such case, interest is payable from

the end of the year, though the fund
in the rent, under statute 4 Geo. 1, c. 5,

does not come to be disposable for the
See RENEWAL, 3...

• payment of the legacies untillong after ;

and if the fund is productive wiihin the

year, the intermediate profits belong

to the residuary legatee, - 12
*4. But if the legacy be charged on lands,

interest is payable from the death of the
LIMITATIONS, 4, 5, Pin ons

testator, or not at all, -
* LEASE pur auter vie.

5. Legacy to executor, to be distributed

amongst the poor relations of testator.
you, Illi')'nde

A relation who was poor at the time of
testators death, but became rich before

distribution, not entitled. Mahon v
LEASE coupled with loan of Money.

Savage, - - - - 111

6. A specific legacy cannot, in a subse-
1. When a loan of money is an induce-

quent part of the will be charged with
ment to granting a lease, it vitiates the

payment of debts and legacies, 339
whole transaction,


See ADMINISTRATOR pendente lite, 1.
. See USURY, 1, 2, 3, 46, 7.


1, 2.

PARENT and Child, 1.
d. E. E. being on bad terms with his

eldest son, bequeaths him a trifling av- 1
.Quity, and bequeaths to M. the daugh-

ming ap- 1. Purchase money unpaid, ispirima facie,

a lien on the lands sold ; and if a secu.
ter of his said son, "if unmarried and

110 rity is taken for that money, it lies on

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See Possession, 1.

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