10. A creditor coming in to prove his 4. Feme covert executrix shall be an-
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. T. holds shares in a trading compa-
ny in trust for W. who by his will ap-
points T. his residuary legatce: 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, s. 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,
328
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,
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 AND FEME.

336

338

338

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 M1Wil-
liams, a Bankrupt,

5.

swerable to creditors at law, after the
coverture, for waste committed by the
husband during the coverture, 257
The law has no form of action by which
the assets of the husband of a feme ex-
ecutrix are chargeable for a devastavit
committed by him during the cover-
ture,

261

6. But equity will relieve in such case,
on the principle that the property came
into the husband's possession bound by
a trust,
ibid.

7.

And if the assets of the original testa-
tor remained in the hands of the hus-
band, and went to his executors in spe-
cie, an action at law might be maintain-
ed for them,
262

8. 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,
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.

9.

BILL TO PERPETUATE

TESTIMONY.

See PRACTICE, 13, 14,

C

CASES DOUBTED, DENIED,
OR OVERRULED.

263

183 1. Acherly v. Vernon, 1 P. W'ms. 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,

5

2. Allan v. Bower, 3 Bro. C. C. doubt-
ed,

S.

37

Beynon v. Gollins 2. Bro. C. C. 323,
and Dick. 697, erroneously reported,

243

3. Whether the wife surviving shall not
be charged, if the assets of the husband
prove insufficient; Qu.? Semble. that 5.
she strall,
ibid.

240.
ruled,
7. Doe, ex dem. Blake v. Luxton, 6 Term
Rep. 292, a dictum of Lorp KENYON, 2.
294
doubted,

8. Hyde v. Foster, Dick. 110, overruled,
240
9. Maxwell v. whettenhall, 2 P. Wms.
11
27, (4th point) doubted,
10. Prichard v. Quinchant, as reported
in Ambl. 147, probably incorrect, 296
11. Parteriche v. Powlett, 2 Atk. 383,
35
imperfectly reported,

3.

Where a defendant submits to answer
exceptions before an order of refer-
ence, plaintiff shall be entitled to the
stamp duties in addition to the usual
241
costs. General Rule,

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.
378 4. It is a settled rule that the executors
of an insolvent shall not have costs, 280
See PRACTICE, 11.
SOLICITOR, 3.

12. Salisbury v. Baggot, 1 Ch. Cas. 278,
doubted,

13. Tawney v. Crowther, 3 Bro. C. C.
318, doubted whether the facts support
the decree,

33

14. Weakly ex dem. Yea v. Bucknell,
Cowp. 473, and Goodtitle v. Bailey,
Cowp. 587, denied by Mr. Justice KEL-
LY, (note)

15. Zouch v. Woolston, 2 Bur. 1136, pas-
sages therein doubted,

CHOSE IN ACTION.

66, 71

COVENANT.

69 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-
street,

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,

-

319

1. Where a suit is occasionsd by a diffi-
culty arising from the will of the tes-

See INDEMNITY, 1, 2.

72

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,

296

behalf of creditors in the same man- 1.
ner as mortgagee in possession. La-
touche v. Lord Dunsany, Lord Dun-
sany v. Latouche,
137, 154

Nor to any order made upon motion,
Sembl.
ibid.

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,
82
See PRACTICE, 3, 4.

EXECUTOR AND ADMINISTRA-
TOR.

See ADMINISTRATOR pendente lite, 1
BARON and FEME, 1, 2, 3, 4, 5, 6, 7,
8, 9,
COSTS, 4.

F

FINE.

1. A fine sur concessit begins to operate
as a bar only from the execution;
Sembl.

-

-

228 1. A grand-father having taken the chil-
dren of a son who had ruined himself,
educated them entirely, and by his will
gave the son an annuity, provided he
did not interfere with the children,
and then gave legacies to the children.
Lord BATHURST held that the grand-
father had put himself in loco parentis,
and decreed interest on the legacies, 5
379 2. So, per Lord Rosslyn, where a testa-
tor gave legacies to the natural chil-
dren of his son, payable at a future
day, and gave no maintenance in the
mean time; but gave directions how
they should be educated, and attempt-
ed to make testamentary guardians,

2. Fine and non-claim by a trustee to a
person having notice of the trust, shall
not bar the cestui que trust: It is
merely a conveyance. Kennedy v.
Daly,
355, 379
3. One taking from a trustee, with no-
tice, levies a fine to strengthen his
estate; this shall not bar the cestui
que trust,
4. A person coming to a title which is
bound by an equitable right, cannot,
by levying a fine, discharge his estate
from the consequences of that right,
380
5. Where a fine is levied upon a posses-
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.
confidence, a fine and non-claim will
make no bar,
381

GREAT SEAL,

6

An inquisition taken in England under
a commission of lunacy issued there,
is not sufficient to found a grant of
lands in Ireland. There must be an
inquisition and finding under the au-
thority of the great seal in Ireland.
Matter of the Duchess of Chandois, &
lunatic,
301

GUARDIAN.