5. Power of appointment in such shares
and proportions as husband and wife
should by any deed in writing direct,
not well executed by appointment by
the will of the husband with a written
endorsement thereon made by the wife
after his death, expressing her appro-
bation. Bushell v. Bushell, 90, 96.
6. Nor would it have been better if the
wife had ratified it at the time of the
execution, it being revocable by the
husband during his life,
ibid.
AGREEMENT, 6, 7, 8.
COVENANT, 1.
1. Parties obtaining wrongful possession
and setting up a false title (under co-
lour of instruments finally condemned)
during the investigation of which they
are protected in their possession by
the court, shall not avail themselves of
any length of possession, pending the
investigation, as a bar to the person 1.
who ultimately proves to have the
right. Bond v. Hopkins,
See LIMITATIONS, 4, 5.
1. Power was given to husband and wife
by deed, and to the survivor by will
duly executed, to charge settled lands
for payment of debts or for younger
children.. The wife surviving charged
the estate by will executed in the pre-
sence of two witnesses only. Lord
HARDWICKE held that though the
will was not duly executed within the
meaning of the power, the court ought
to aid the defective execution in fa-
vour of the creditors and younger
children. Wilkie v. Holmes, (note) 60
2. Power to make leases is to be con-
strued as liberally as powers of join-
turing, charging, &c.; and a contract
to make a lease pursuant to a power
shall be as binding as a contract to
make a jointure or charge pursuant to
a power. Shannon v. Bradstreet,
52, 61.
3. Non-execution of a power is where
nothing is done. Defective execution
is, where there has been an intention
to execute, and that intention suffi-
ciently declared; but the act declar-
ing the intention is not an execution in
the form prescribed.
![[ocr errors]](https://books.google.co.in/books/content?id=ioYDAAAAQAAJ&output=html_text&pg=PA487&img=1&zoom=3&hl=en&q=fact&cds=1&sig=ACfU3U1jvJBGm1zEQA1tDjAMwsDxGAuKOw&edge=0&edge=stretch&ci=345,1354,10,7)
4. A contract to execute such power is
a sufficient declaration of intent, ibid.
Where an injunction is obtained for
want of an answer, defendant may dis-
solve it by giving the rule to dissolve,
and the second rule in six days after,
which shall be absolute without further
order, unless plaintiff files exceptions
in four days, or moves on equity con-
fessed in eight days, or on the first day
of motions afterwards; notice of such
motion having been entered with the
register; and all such motions shall be
listed and called on at the sitting of the
court on such motion day. General
Rule,
Writ improvidently issued, if within
the controul of the court (either as not
having gone out of the custody of the
officer, or as having been returned)
shall be quashed; if beyond its con-
troul it shall be superseded. Lessee
of Lawlor v. Murray,
The writ commanding judges to seal
a bill of exceptions, ought to be made
out by the clerk of the crown, and not-
by the cursitor,
75, 80
Such writ ought not to issue without
special order from the person holding
the Great Seal,
If a creditor coming in under a decree,
require relief which cannot be had by
re-hearing the original cause, he ought
to file a cross bill. Latouche v. Ld.
Dunsany,
6. In all cases where conditional orders
are granted, if cause be not shewn on
the motion day next after the expira-
tion of the time limited by such order,
or a notice of shewing cause served
(which is to be entered with the re-
gister) the register shall give a certi-
ficate of no cause. Notices so entered
to have precedence of all other mo-
tions save injunction motions. General
Rule,
178
7. In all cases where personal interro-
gatories for examinations before the
master are exhibited, such interroga-
tories shall be settled and approved
by the master, if the party to be exa-
mined shall require the same. Gene-
ral Rule,
16. Where a decree has been had against
a prior tenant in tail, affecting the
rights of tenant in tail in remainder,
the latter may file a supplemental bill
to make himself party to the former
suit, for the purpose of appealing.
Giffard v. Hori,
8. Injunction raised pending notice of a
motion for a dedimus, is dissolved of See COSTS, 2, 3. GREAT SEAL, 1.
course on the dedimus being granted.
M'Mahon v. O'Brien,
GUARDIAN, 1. RE-HEARING, 1.
WILLS, (proving of) 1.
PRINCIPAL & AGENT.
9. Substitution of service of subpœna to
appear and answer, on a person to
whom defendant, residing out of the
jurisdiction, had given a power of at- See AGENT, 3.
torney to act for him in the manage
ment of his affairs; refused.
v. Hibernian Mine Company, 238
10. The practice in England, when some See BANKRUT, 5, 6.
parties are out of the jurisdiction and
others within it, is, to charge the fact
in the bill, that such parties are out of
the jurisdiction, and then the court
can proceed, without prejudice to the See BANKRUPT, 5, 6.
rights of such parties,
11. Ön demurrer to the whole bill being
allowed, the bill shall be dismissed,
and costs shall be taxed as upon a dis-
missal; except the costs upon the de-
murier, which shall be allowed as
heretofore. General Rule,
12. It is not necessary to file a supple-
mental bill in order to state that an See WILL, 1.
habere has been executed and posses-
sion changed, pending the cause, 306
13. Bill to perpetuate testimony merely,
ought not to be brought to a hearing;
but if it pray relief, the defendant may
set it down for a dismiss. Vaughan v.
Fitzgerald,
316
14. Heir at law, defendant in such bill,
has a right to have his costs, tho' he See CREDITOR, 2, 3.
cross-examine plaintiff's witnesses;
but if he examine witnesses on his own
part, he shall not have costs as to that,
ibid. 1. The registry of deeds, &c. under the
stat. 6 Ann. c. 2, is not notice. It
15. After a sale regularly confirmed, the
4. This provision in the Irish act has
given even to articles, if registered,
against a legal conveyance, a force
and effect which they have not in
England,
5. A mortgage is prevented by the ope-
ration of the registry act 6 Ann. c. 2,
from tacking, so as to gain a priority
against mesne registered incumbran-
ces. Latouche v. Ld. Dunsany; Ld.
Dunsany v. Latouche, 137, 157
6. For the purpose of adjusting the pri-
orities between deeds under this act,
judgments also obtain priorities, al-
though not generally within the con-
templation of the act,
137, 160
7. Construction of the words in this stat-
ute, sect. 4. " according to the right,
"title, and interest of the person so
"conveying,"
8. Judgment creditors have no priority
by the registry act, except where pri- 1. A renewal of a lease for lives taken
ority between deeds is to be adjusted, by tenant for life, is a trust for the
benefit of those in remainder. Bowles
v. Stewart,
(Sed nota. This position has been de-
nied by the court of Exchequer. See
D'Arcy, executor of Burke v. the
heir and ter-tenants of Chambers;"
Appendix, 467)
2. Renewal of a lease taken by a trustee,
shall enure to the benefit of cestui que
trust. Griffin v. Griffin,
352
3. Under the tenantry act, 19 & 20 Geo.
3, c. 30, what shall be deemed rea-
sonable time after demand for paying
renewal fines, must in all cases depend
on the cricumstances; and circumstan-
ces previous as well as subsequent to
the demand, are to be taken into the
consideration. Therefore, where the
demand was on the 6th of Oct. a ten-
SERVICE,
(SUBSTITUTION OF]
der on the 20th of March following
was not within reasonable time; the
tenant having had intimation for two
years before that payment of the fine See PRACTICE, 9.
was expected, and having neglected to
pay it. Jackson v. Saunders, 443
4. Reasonable time within the act is no
more than what is necessary to give
the tenant full opportunity for ascer
taining when the cestui que vies died,
for computing the amount of the fine
due, and for preparing leases and ten- 2.
dering them for execution: Semble.
Per Lord CLARE, Freeman v. Lord
Waterford, (note)
454
1. Writ of replevin does not lie, unless
there has been a taking of the goods
out of the possession of the person who
sues it forth. Ex parte Chamberlain,
1. A solicitor is bound to give evidence
of his client's hand writing, if requir
ed; it is no breach of the confidence
reposed in him by his client, - 226
A solicitor assisting his client in ob-
taining a fraudulent release, is pro-
perly made a party to a bill seeking
relief from the fraud; and he shall be
liable to costs if the principal be not
solvent,
227
3. Where plaintiff changes his solicitor,
the former solicitor has no right to
stop him from proceeding until his
costs are paid. O'Dea v. O'Dea, 315
2. The writ of replevin is merely meant
to apply to the case where A. takes 1.
goods wrongfully from B. and B. ap-
plies to have them re-delivered to
him, upon giving security, until it shall
appear whether A. has taken them
rightfully. But if A, be in possession
of goods in which B. claims a property,
this is not the proper writ to try that
right. Matter of Wilsons, Bankrupts,
L (note)-A
SPECIFIC EXECUTION.
A. being in insolvent circumstances,
suffers another person to become the
apparent owner of his farm, though
under a secret trust for him: A. shall
not have, against the landlord, a spe-
cific execution of an agreement made
by him with the trustee, the landlord
supposing the trustee to have been the
rightful owner, and confiding in his
solvency. O'Herlihy v. Hedges, 123
3. Writ of replevin lies only where there See AGREEMENTS, 1, 2, 3.
has been an actual taking out of the
possession of the party suing it. Shan-
non in replevin v. Shannon,
4. But it lies upon any taking,
merely upon a distress,
and not See LEGACY, 6.
ibid. 327
See AGREEMENTS, 3, 4, 5, 6, 7, 8, 9, 1. Where lands are devised in trust for
payment of debts, the statute of limi-
tations runs not in equity after the death
of testator, against debts not barred
thereby at his death. Executors of
Fergus v. Gore,
1. The rule that "a trustee shall gain
no benefit for himself," shall not en-
title a cestui que trust to compel a
party who knew nothing of the trust,
to execute an agreement made with
the trustee, and on the credit of his
solvency. O'Herlihy v. Hedges, 123,
131
1. Tenant for life is entitled to the pos- 2. In order to prevent the statute of usury
session of the title deeds,
applying to such transactions, it ought
|