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EXAMINATION DE BENE ESSE.

14 & 15 Vict. c. 99, a defendant could not have been examined as a witness for a co-defendant in precisely the same interest. Carrington v. Pell, 512

See CONTRIBUTORY, 18.
EXAMINATION.

PUBLICATION.
WILL 4.
WITNESS.

EXAMINATION.

After the passing of the Act, 6 & 7 Vict. c. 85, two (of four) trustees of a charity, who were defendants to an information complaining of acts of mismanagement, were examined in chief, by mistake, as witnesses, by the relator without any order for that purpose, instead of being cross-examined. The relator did not tender the depositions in evidence:-Held, that, by reason of their examination, no decree could be made against them.

Held, also, that the 32nd Order of August, 1841, did not, in such circumstances, entitle the relator to relief against the remaining trustees.

On a motion made on behalf of the relator, after the cause had been argued, to suppress the depositions of the trustees, it was ordered that they should be suppressed, on the relator entering into admissions, and on the defendants' being permitted to add to their evidence; but, on appeal, the order was discharged, the Lord Chancellor being of opinion, that, even on these terms, the relator could not be relieved from the mistake. AttorneyGeneral v. Dew, 488

See TRADER DEBTOR.

EXAMINATION DE BENE

ESSE.

See WITNESS.

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Where a creditor of a testator obtained judgment against the executor de bonis testatoris, and a decree was immediately afterwards made in a creditor's suit:-Held, that the executor was not entitled to an injunction to stay execution on the judgment. Vincent v. Godson, 717

See CONTRIBUTORY, 9, 28.
LEGACY DUTY.
PARTIES, 1.

EXONERATION.

A testator had, before his marriage, limited lands to trustees for a term, to secure a debt, and subject thereto to other trustees for another term, to secure an annuity of 100l. per annum to his intended wife for life, with a proviso for determining the latter terin on his investing a sufficient amount to secure an equal annuity. He died without having made such an investment, having by his will directed payment out of his personal estate of his debts, including what might be charged upon the settled lands; and he bequeathed his residuary estate to his widow. Before his death, he had paid off the debt secured by the first of the above-mentioned terms, which had consequently determined, and the annuity was the only charge upon the estates:-Held, that the tenant of the estates was not entitled to have them exonerated as against the widow out of the residue. Reeve v. Reeve, 714

FEME COVERT.

See HUSBAND AND WIFE.

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The widow and one of the two executors of a surgeon dentist, who alone proved his will very shortly af ter his decease, by the description of the widow and one of the executors of the deceased, entered into an agreement with a person as his successor, who agreed to give to the widow, her executors, administrators, and assigns 100%. yearly for five years, for the goodwill of the business, and for the advantage of an introduction to the patients of the deceased; to pay 100%. for the instruments; to take the furniture at a valuation; and to take the house which the deceased held as a yearly tenant, and in which he resided, for the residue of the term therein. The agreement contained

HUSBAND AND WIFE.

stipulations for the personal exertions of the widow on behalf of the successor. Upon inquiries before the Master in a creditor's suit against the widow for the administration of the testator's estate, it appeared by the affidavit of the successor, that he relied upon the widow's personal exertions; and that, if these were not afforded, he should resist payment of the annuity. By the report the Master did not charge her with the annuity of 1007. as part of her testator's assets; but, on exceptions,-Held, that the whole, or a part, of the annuity belonged to the estate; and the cause was referred back to the Master to review his report. Smale v. Graves, 706

GUARDIAN.

See INFANT, 4. MORTGAGE, 6.

GUARDIAN AD LITEM. See INFANT, 1.

HUSBAND AND WIFE.

1. Where a husband, before his marriage, had sufficiently early notice that it was intended to settle the bulk of the intended wife's property, and nothing passed to justify a belief, on the husband's part, that, at the time of the marriage, no such settlement had been made:-Held, that the husband was not entitled to set aside a settlement, which it appeared had been made before the marriage, although he was no party to it, and was not proved to have been actually cognizant of any settlement having been made. Wrigley v. Swainson, Wrigley v. Wrigley,

458

2. A husband and wife, by deed acknowledged, demised freeholds of the wife to a mortgagee by way of trust, the trusts being to apply the

rents and profits in payment of certain premiums on insurance, and of the interest on the mortgage debt, and then in reduction of the principal, until it should be paid off. The husband took the benefit of the Insolvent Act:-Held, in a suit for redemption instituted by the assignee in insolvency against the mortgagee, that the latter was chargeable with the surplus rents which he permitted to be received by the insolvent's wife for her maintenance, the principles established by Sturgis v. Champneys not extending to such a case. there being ground for supposing that the Court would have made such a provision for the wife, the Court, although the balance was found against the mortgagee, decreed payment without costs. Clark v. Cook, 333 See CONTRIBUTORY, 11, 12, 13, 14.

INCOME-TAX. See PROPERTY TAX.

INCUMBRANCER.

See COSTS, 5.

INFANT.

But

1. The Court appointed a guardian ad litem to an infant defendant, without his production in Court, upon an affidavit that the infant was only nineteen days old, and a medical certificate that the infant could not be safely produced. Stutley v. Harrison,

394

2. A bonus on a policy settled on trusts, under which an infant was entitled contingently on attaining twenty-one, directed, on petition without suit, to be anticipated and applied for maintenance of the infant. Ex parte Hays, Re Hays, 485

3. In July, 1845, one of the followers of a Dissenting preacher (who styled himself the Servant of the

Lord), having no property of his own, married another of the sect, who had a fortune of about 50007., under circumstances leading to the inference that the marriage was brought about entirely by the influence of the preacher. In February, 1846, the wife, having manifested insubordination to the chief of the sect, was deserted by her husband, who, with the chief, and others of his followers, went to reside together at an establishment which they formed, and called "Agapemone." They there professed and acted upon the doctrines that the day of grace had passed, and the day of judgment commenced; and that, by reason thereof, prayer was superfluous and no longer necessary. They also professed and acted upon the doctrine, that no day of the week ought to be set apart as one of peculiar holiness. Shortly after the desertion of the wife she was delivered of a boy, who remained in the care of his mother and maternal grandmother, at the residence of the latter, who properly provided for his maintenance and education. Held, a proper case for restraining the father from acquiring possession of the infant. Thomas v. Roberts,

758

4. If, independently of the Act of 2 & 3 Vict. c. 54, the Court can exercise jurisdiction upon the petition of a mother having the custody of her infant child, for the continuance of such custody, it may do so, although the petition is intitled in the matter of that Act as well as in the matter of the infant.

Where the mother of an infant under seven years of age, and having custody of it, is living separate from the father, and has a good defence to a suit by him for restitution of conjugal rights, the Court may make an order continuing to the mother the custody of the infant, such a case, al

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1. The time within which a Railway Company was authorised to take lands expired on the 4th of August, 1848. Long before this period they gave notice to a landowner to treat, and afterwards delivered to the plaintiff, to whom the lands had been in the meantime devised, a bond, and paid the estimated value of the lands comprised in the notice into the Bank under the Lands Clauses Consolidation Act, 1845, s. 80. Under an Amendment Act, the powers of which extended beyond 1848, the Company were authorised to take the land included in the notice; and, on August 3rd, 1848, they gave a notice to the plaintiff, that, in pursuance of the powers of both thosc Acts, they intended to take the lands. After the 4th of August, 1848, but without taking any further steps under the Acts, the Company entered upon the land. On a motion for an injunction, the Court declined to interfere, on the ground, that, although the Company might not be then entitled to take possession under their compulsory powers, they were able, by some proceeding under the second Act, to obtain the land; and the motion was ordered to stand over, with liberty to the plaintiff to bring an action. Williams v. South Wales Rail

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iujunction, but for the circumstance that the time limited for the exercise of the compulsory powers was on the point of expiring; but that the doubt as to the validity of such proceedings after that period, although the usual notice had been given of the intention of the Company to take the land, was sufficient ground for declining to grant the injunction, on the Company undertaking not to act on the result of the jury process without the leave of the Court, and bringing into Court 2007 to answer the plaintiff's costs and charges by reason of the process, without prejudice to any question. Wood v. North Staffordshire Railway Company,

368

3. A Railway Company, under the powers of the Lands Clauses Consolidation Act, 1845, gave the usual notice of reference to a jury to assess the value of a portion of a house, shop, and outbuildings, which had been occupied together, coffee being roasted in the outbuildings and sold in the shop. They gave a bond to the lessee, her heirs, executors, administrators, and assigns, and paid into Court 6007, the amount at which the value of the buildings taken by them had been estimated, under the provisions of the Act; they then proceeded to enter into possession, and to pull down the buildings. The lessee filed her bill, to which neither the superior landlord nor her sub-lessee was a party, for an injunction to restrain the Company from continuing in possession of the buildings, on two grounds: First, that the buildings taken were part of a manufactory, and could not be taken without the rest; and, secondly, that the bond given was invalid by reason of its being conditioned for payment of the sum specified to the heirs, executors, administrators, or assigns of the lessee. On a motion for the injunction, the Court considered that there was a serious ques

tion to be tried at law, whether the whole proceedings of the Company had not been illegal; yet, as the only complaining party was not in the occupation of the premises, and was not liable to personal inconvenience pending the litigation at law, and as the Company, in any event, was entitled to take the property, forbore to grant an injunction, upon the Company paying into Court a further sum of 600., and undertaking to abide by such order as the Court might make as to proceeding before a jury under the notice they had given, and as to the possession of the buildings.

The Court may, upon a motion for an injunction, direct a case for the opinion of a Court of law, although it grants no injunction, but merely directs the motion to stand over, and although the defendant objects to any case being directed. Dakin v. The London and North Western Railway Company,

414

4. A Railway Company having begun to divert a turnpike-road, by a crossing on a bridge over their railway with a sharp curve, an information, at the relation of two of the trustees of the road, was filed, praying for an injunction to restrain the Company from interfering with the road until they should have provided another as convenient as the former, or as near thereto as circumstances allowed, as required by the Railways Clauses. Consolidation Act, 1845, s. 56.—The Court, holding that the Company were not doing as little damage as could be, granted the injunction, but without prejudice to any application either party might make to the Board of Trade, under the 66th section of the above Act.

In granting such an injunction, the Court cannot point out to the Company what they ought to do, except by stating the reasons which induce the

Court to come to its conclusion, or the manner in which it appears to the Court that that which seems an evil can be remedied. Attorney-General v. London and South Western Railway Company, 439

5. A bill, seeking an injunction to stay proceedings at law, was duly answered, without any injunction having been obtained on the original bill; it was then amended, and defendant was served with subpoena to appear and answer on the day following the day on which the eight days from the service of the subpoena expired; the plaintiff obtained, as of course, the common injunction for want of appearance, without affidavit of the truth of the amendments, on the allegation that the defendant, being served with subpoena to appear and answer the plaintiff's bill, had not appeared thereto, although his time for so doing had expired. The writ of injunction was sealed on the same day. On the morning of the same day the defendant entered his appearance, but did not serve notice thereof on the plaintiff's solicitor. On a motion by the plaintiff to extend the injunction to stay trial, and on a cross motion by the defendant to dissolve it:-Held, that the injunction had priority over the appearance, that the injunction so obtained as of course for want of answer to the amended bill was regular, and the common injunction to stay trial was extended. Eyton v. Mostyn, 518 See BENEFICE.

CREDITOR'S SUIT. EXECUTOR. SOLICITOR, 1.

INQUIRY.

See EVIDENCE, 1.

INSTALMENTS.

See PROOF, 2.

and

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