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10. A creditor coming in to prove bis 4. Feme covert executrix shall be an.

debt after a dividend made, (provided swerable to creclitors at law, after the
the delay was not fraudulent, but ow coverture, for waste committed by the
ing to accidentor unavoidable circum husband during the coverture, 257
stances) shall be put on a footing with 5. The law has no form of action by which
the other creditors, before any further the assets of the busband of a feme ex.
dividend is made. Matter of Whelan, ecutrix are chargeable for a devaslavit
a Bankrupt,

committed by him during the cover-
11. T. holds shares in a trading compa ture,

ny in trust for W. who by his will ap- 6. But equity will relieve in such case,
· points T. his residuary legatce: T. on the principle that the property came
continues in possession of the shares into the husband's possession bound by
and becomes bankrupt. The shares a trust,

are not within the meaning of the bank- 7. And if the assets of the original testa-
rupt, act 11 and 12 Geo. 3, c. 8, 8. 9, tor remained in the hands of the hus-
inasmuch as T, is himself “ the true band, and went to his executors in spie-
s owner and proprietor thereof," sub cie: an action atlaw might be maintain-
ject however, to the debts and legacies ed for them,

of W. Joy v. Campbell, 328 8. Feme executrix commits waste before
12. The object of that clause in the bank coverture; the husband shall not be
rupt act is, to prevent deceit by a charged ai law after coverture; and
trader from the visible possession of equity will not vary this rule at law
property to wliich he is not entitled : on the ground of his having or not
that is, where the possession is not in having received a portion with his
the true owner, but in one whom the wife,

• true owner unconscientiously permits 9. Administration taken by a feme covert
* to have it,

336 must be presumed taken with the pri.
13. That credit has been given on the vity and assent of the husband, 266
- foot of the property does not bring the See BANKRUPT, 1, 2, 7.
case within the act,

14. The effect of the ninth section 11 BILL TO PERPETUATE
and 12 Geo. 3, c. 8, is not a forfeiture

3 of the property by the owner,' 358

See PRACTICE, 13, 14,

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 MWVil-
-liams, a Bankrupt,

...183 1. Acherly v. Vernon, 1 P. Wms.'173,
2. Feme covert obtains administration doubted,

and the goods are wasted during the 2. Allan v. Bower, 3 Bro. C. C. doubt,
coverture; the husband dies ; his as ed,

sets are chargeable in equity for the S. Beynon v. Gollins 2. Bro. C. C. 523,
• waste committed during the coverture, and Dick. 697, erroneously reported,
**Adair v. Shaw.

3. Whether the wife surviving shall not 4. Blakeway v. Earl of Strafford, 2 Eq.
be charged, if the assets of the husband Abr. 579, doubted,

prove insufficient ; Qu.? Semble. that 5. Campbell v. Leach, Ambl: 749, a pas-
i slic sirall,
ibid. sage there doubted,


66, 71

6. Carter v. De Brune, Dick. 39 over tator, the costs are to be paid out of

240 the general fund. Pearson v. Pearson,
7. Doe, er dem. Blake v.Luxton, 6 Term

Rep. 292, a dictum of Lorp KENYON, 2. Where a defendant submits to answer

294 exceptions before an order of refer-
8. Hyde v. Foster, Dick. 110, overruled, ence, plaintift shall be entitled to the

240 stamp duties in addition to the usual
9. Maxwell v. whettenhall, 2 P. Wms. coșts. General Rule,

27, (4th point) doubted,

11 3. In case such exceptions shall be re-
10. Prichard v. Quinchant, as reported ferred to the master, he shall tax to

in Ambl. 147, probably incorrect, 296 the plaintiff the costs of the excep-
11. Parteriche v. Powlett, 2 Alk. 383, tions allowed, and to the defendant
imperfectly reported,

35 the costs of the exceptions disailow-
12. Salisbury v. Baggot, 1 Ch. Cas. 278, lowed ; and strike the balance, ibid.

378 4. It is a settled rule that the executors
13. Tawney v. Crowther, 3 Bro. C. C. of an insolvent shall not have costs, 280

318, doubted whether the facts support See PRACTICE, 11.
the decree,

14. Weakly ex dem. Yea v. Bucknell,
Cowp. 473, and Goodtitle v. Bailey,

Cowp.587, denied by Mr. Justice Kel-
LY, (note)

69 1. Tenant under a power to make leases
15. Zouch v. Woolston, 2 Bur. 1136, pas-

without fine and at the best improved
sages therein doubted,

yearly rent that can be had, cove-

nants to lay out 2001. in improve-

ments. This is not necessarily a fraud

on the remainder-man, provided the
' 1. Bequest of “all my property in A.ex-. rent be the best that can be got. But

cept” a particular chose in action de if it be colourable at the beginning, or
scribed in the will : other choses in. be afterwards used fraudulently, a
action found in A. (such as mortgage court of equity will take care that it
deeds, bonds, and banker's receipts) shall not prejudice. Shannon v. Brad-
do not pass, notwithstanding the ex street,

ception. Vaughan v. Brook, 318 See INDEMNITY, 1, 2.
2. Bank notes would have passed, they
being quasi cash,


CONSTRUCTION OF DEEDS, 1. In proceedings by creditors, all the

creditors have a right to the benefit of

the diligence of any of them, 156
See ARTICLES, 1, 2.

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, 296

3. So, although an incumbrancer were
See EVIDENCE, 3, 4.

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-
1. Where a suit is occasionsd by : diffi rect that such bill should be taken as
: culty arising from the will of the tes filed at the same time with the for-



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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.

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-

compensation for non-performance of
touche v. Lord Dunsany, Lord Dun-

an agreement; such relief must be
dany 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
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-
1. 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 v.
nedy v. Daly,

355, 375

201, 204
2. A decree obtained without making 3. In cases where effectual cognizance
parties 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 shall

thing whereby he has an unconscien-
bind a remainder-man,
407 tious advantage,

4. But the remainder-man may appeal 4. Concealment of a material fact is a
or re-hear the cause,


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

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,


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 v. Murray,
that issue, M. taking no part in it: the

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

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 hay 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 le.

cord; this is the proper subject of a
bill of exceptions,


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.

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 T. and
to the advertisement. Clinan v. Cooke,. C. his executors, and T. his residuary

22, 33

legatee ; and leaving a sum of money
2. Ifin an agreement sought to be speci... under the controul of Ç. 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 ettling with T.
of defence, and to rebut the plaintiff's · as executor of W., C. hands him over

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

38, 39 estate of W. C. 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 v. Hamilton,
207 v. Campbell,

-328, 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 wbich is under the controul of both :
the fact of the registry : but if the me 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

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


3. The writ grounded on the stat. Westm.




See ADMINISTRATOR pendenie 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)

Costs, 4.

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

4. As to costs ou exceptions, See Costs;


5. On demarrer to the whole bili being

allowed, (See Practice, 11) - 304

1. A fine sur concessit begins to operate

as a bar only from the execution ;

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,

355, 379 and then gave legacies to the children.
3. One taking from a trustee, with no Lord BATHURST 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
que trust,

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

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 gavę directions how

380 they should be educated, and attempt-
5. Where a fine iş 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,

381 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 AĢENT, 1,

Matter of the Duchess of Chandois, e
AGREEMENT, 3, 4, 6, 7, 8, 9,


10, 12,

1. Where a testamentary guardian bas

not acted, the mode of proceeding in

order to have a guardian appointed is

by petition, it is not necessary to file

a bill. Secus, if after acting, he has

misconducted himself. O'Keeffe v.

1. Asto disolving injunctions, (See Prac-

tice, 1)

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