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* decease of J. C. to the issue of J. and
"A. C. in such shares and proportions
"as the said J. should appoint; and

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for want of such appointment, to go
"to such children equally, share and
"share alike; and for default of such
"issue to the heirs, executors and ad-
"ministrators of said J. during said
"leases the money, or the lands
agreed to be purchased therewith,
"to go to the issue of said J. and A.
"in such shares and proportions" as
there directed; "and for want of such
"appointment to be equally divided
66 among such children, share and
"share alike; and if no children of
"said marriage, or all should die be-
"fore twenty-one," then a power to
dispose of said money. Issue was con-
strued children, and the issue of J.
and A. took the absolute interest in
the chattel property, and a quasi fee
in the freehold property. Campbell v.
Sandys,

See MARRIAGE ARTICLES, 1.
PAPIST, 1, 2, 3.
REGISTRY, 4.

ASSIGNMENT.

See JUDGMENT, 1.

ATTORNEY.

See SOLICITOR.

B

BANK NOTES.

See CHOSE IN ACTION, 2.

BANKRUPT.

281

1. A bond is given by a trader, previous
to his marriage, to a trustee, and by
marriage settlement of the same date
it is covenanted that the sum men-
tioned in the bond is to be payable only
in the event of the wife surviving the
husband; and it is also covenanted

2.

3.

4.

5.

that in case of the husband failing in
his circumstances, but not otherwise,
the trustee shall sue on the bond. The
husband becomes bankrupt living the
wife. The trustee ought not to be ad-
mitted a creditor. Matter of Mur-
phy, a Bankrupt,
44
But the wife's own fortune may be
thus settled, (Vid. infra. 9.) 47
A contract to make a legal debt not
enforceable till death or bankruptcy is
a fraud on the bankrupt laws; it not
being possible to enforce it against the
debtor except in the character of
bankrupt. Ex parte Henecy, (cit.)
47

Equitable as well as legal debts are
proveable in bankruptcy,

48

A bankrupt, pending his examination,
is protected from an arrest, made by
virtue of an attachment, issued for a
contempt in not lodging money in court
pursuant to a decree. Matter of
M'Williams, a Bankrupt,

169
6. Though the form of the process be
criminal, yet if it issue to compel pay-
ment of a debt, it is an arrest under
the statute 11 and 12 Geo. 3, c. 8,
sect. 28,
ibid.

7. Every mode by whor: a debt, whether
arrest a bankrupt

which a creditor can

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in law or equity, comes within the pro-
tection of the bankrupt act, ari 175
8. Executrix marries, and her husband
and she admit assets in answer to a
bill filed against them. The assets
become a debt of the husband in res
pect of this admission, and may be
proved under a commission of bank-
ruptcy issued against him,
173
9. A trader on his marriage receives
6007. his wife's fortune, and gives a
bond for 1,000l. to a trustee, the inter-
est payable to himself for life if he
shall continue solvent, but in case of
his death or insolvency, the interest
to his wife for her life, and the princi-
pal among the children of the mar
riage. On his bankruptcy, the claim
of the trustee to be admitted a credi-
tor on behalf of the wife, for interest,
allowed as far as the 600l. but not for
the remaining 4001. Matter of Meag
her, a Bankrupt,

179

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10. A creditor coming in to prove his
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. 7. holds shares in a trading compa-
ny in trust for W, who by his will ap-
points 7. his residuary legatee: 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, 8, 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,
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,

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328 8.

338

336
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 ANDяFEME.

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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 M'Wil-
liams, a Bankrupt,

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

262

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,
263
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,

Sce PRACTICE, 13, 14.

C

CASES DOUBTED, DENIED,
OR OVERRULED.

183 1. Acherly v. Vernon, 1 P. Wms. 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,
243

5

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

3.

3. Whether the wife surviving shall not 4.
be charged, if the assets of the husband
prove insufficient; Qu.? Semble. that 5.
she shall,

ibid.

-

37

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

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10. Prichard v. Quinchant, as reported
in Ambl. 147, probably incorrect, 296
11. Parteriche v. Powlett, 2 Atk. 383,
imperfectly reported,

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35

3.

tator, the costs are to be paid out of
the general fund. Pearson v. Pearson,

12

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

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.
4. It is a settled rule that the executors
of an insolvent shall not have costs, 280

12. Salisbury v. Baggot, 1 Ch. Cas. 278,
-378
doubted,
13. Tawney v. Crowther, 3 Bro. C. C.
318, doubted whether the facts support See PRACTICE, 11.
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)

69
15. Zouch v. Woolston, 2 Bur. 1136, pas-
sages therein doubted,

CHOSE IN ACTION.

66, 71

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,

CONSTRUCTION OF DEEDS,

&c.

See ARTICLES, 1, 2.

CONTRACT.

See AGREEMENT.

COPY.

See EVIDENCE, 3, 4.

COSTS.

319

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

SOLICITOR, 3.

COVENANT.

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-
0150072
street,

See INDEMNITY, 1, 2.

TRACREDITOR.

9.11 16

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

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

D.

DECREE.

137, 154:

1. A decree obtained by fraud and im-
position, shall have no effect. Ken-
nedy v. Daly,
355, 375
2. A decree obtained without making
parties of those whose rights are affect-
ed thereby, is fraudulent and void as to "
those parties: And a purchaser under
it, with notice of the defect, is not pro-
tected by it. Giffard v. Hort, 386
3. Decree against a tenant in tail shall
bind a remainder-man,
$4. But the remainder-man may appeal
or re-hear the cause,

407

409
* 5. Even creditors, not parties to the suit,
but who came in under the decree,
may appeal or re-hear: So, a person
entitled in any way,

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DEMURRER.

See PRACTICE, 11.

DISTRIBUTION.

See RELATIONS, 3,

409

3.

EQUITY.

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Equity cannot relieve by decreeing
compensation for non-performance of
an agreement; such relief must be
sought at law,
25
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-
petent to him to have laid that ground
before the court of Law. Bateman v.
Willoe,
201, 204
In cases where effectual cognizance
cannot be taken at law, equity inter-
feres; as, in complicated accounts.
So, where a verdict is obtained by
fraud, or where a party at law has
possessed himself improperly of some-
thing whereby he has an unconscien-
tious advantage,
Concealment of a material fact is a
sufficient ground for equity to avoid a
release obtained by the person whose
duty it was to make the disclosure.
Bowles v. Stewart,
209, 227
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

4.

205

225

GENERAL INDEX.

son of testator, was illegitimate, and
making M. a party (who in case of B's
illegitimacy was heir at law to testa-
tor:) Issue of devisavit vel non direct-
ed; H. and B. proceed to the trial of
that issue, M. taking no part in it: the
issue found in the negative, and the
bill dismissed in 1770. On a bill filed
in 1776 by B. for the possession and
title deeds, he has an equity against
H's ever insisting on the will or the
illegitimacy: and also against M's
insisting on the illegitimacy, after hav-
ing declined to contest it on the issue.
413, 426, 436
Bond v. Hopkins,

EVIDENCE.

m2, commanding judges to seal a bill of
exceptions, does not lie where the ex-
ception taken is to an order of a court
of law amending one of its own re-
cords. Lessee of Lawlor y, Murray,

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75

2. Nor to any order made upon motion,

Sembl.

ibid.
3. 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,
See PRACTICE, 3, 4.

82

TOR.
EXECUTOR AND ADMINISTRA-

2.

1. A. advertised lands to be let for three
lives or thirty-one years; B. entered
into a written agreement for a lease,
but in the agreement, the term for
which the lease was to be made, was 1.
not mentioned: There being no refer-
ence in the agreement to the adver-
tisement, parol evidence was not ad-
missible to connect the one with the
other, so as to ascertain the term.
Secus, if the agreement had referred
to the advertisement. Clinah v. Cooke,
22, 33
2. If in an agreement sought to be speci-
fically executed, there be an omission,
either by mistake or fraud, it is com-
petent for a defendant to shew that
omission by parol evidence, as matter
of defence, and to rebut the plaintiff's
equity. But it seems that a plaintiff in
similar circumstances cannot do so,
38, 39.

3. An attested copy of the memorial of
the assignment of a judgment is evi-
dence of the fact of the assignment.
Hobhouse v. Hamilton,

207

4. An attested copy of the memorial of 3.
the registry of a deed is evidence of
the fact of the registry: but if the me-
morial be used as evidence of the con-
tents of the deed, the original must be
ibid.
produced,

EXCEPTIONS, (BILL OF),

1. The writ grounded on the stat. Westm.
VOL. I.

A lease pur auter vie to one, his exe-
cutors and administrators; the execu-
tor does not take as special occupant,
Sembl.

289

T. and his partners, together with W.
give securities to C. for the proper
debt of 7. W. dies, leaving and
C. his executors, and T. his residuary
legatee; and leaving a sum of money
under the controul of C. C applies
this money to the payment of the se-
curities given by T. and Co. and by
with
W.; and debits W.in account
the amount and on settling with T.
as executor of W., C. hands him over
these securities, and pays him, as re-
siduary legatee the balance due to the
estate of W. C. shall be answerable
to the creditors and legatees of W.,
on failure of T., as well for the sum
paid to 7. as that retained by C. Joy
328, 340
v. Campbell,

Executors join in a receipt for money
which is under the controul of both :
both shall be responsible, though the
money be actually received only by
one; for it amounts to a direction by
the other to pay his co-executor. Se-
cus, if the signing be of necessity, and
the money not under the controul of
$41
both,

3 Q

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