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.
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
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