William S. Hein & Company.

American law magazine, Volume 2 online

. (page 16 of 44)
Online LibraryWilliam S. Hein & CompanyAmerican law magazine, Volume 2 → online text (page 16 of 44)
Font size
QR-code for this ebook

the appointment of the moiety, and appointed the entire fimd%qually
between the two illegitimate children: Held, that the power of
revocation being in favour of children generdly, could not be
exercised in faVour of the after-born illegitimate child. Dover v.
Alexander, 2 H. 275.

LIEN. {Pa^meni hy msUeUar.) The solicitor of the executrix

- having paid a sum which was due to a third party, who had a lien
on the title deeds belonging to the testator's estate for the amount,
gave a receipt for the deeds in the name of the executrix, and, as
her solicitor, carried into the master's office her examination, in
which the sum he had so paid was stated to have been paid by th^
executrix, and was allowed accordingly: Held, that the solicitor
must, in such circumstances, be presumed to have made the pay-
ment on the behalf and on the personal security of his client, and
that he could not claim a lien upon the deeds for the amount.
Ckrittian v. Field, 2. H. 177.

MAINTENANCE. {AU&wanee tofiukerftfrpasi mainienanee.)
Testator bequeathed an annuity to his grand*daughter, to be applied
^whilst she was under age in and towards her maintenance and
education, in such manner as his trustees should in their absolute
dt8creti<m think fit, and whether her father should be able to main-
lain and provide for her or not. The trustees having made a
very small payment on account of the annuity, and having made
no provision for the maintenance or education of ^ infant, who
. had been wholly provided for by her father,<{he oourt declared
that, in the event of its appearing that the father had properly
maintained and educated the infant from the testator's death, he
should receive the whole annuity for the time past and till further
notice; he undertaking properly to maintain and educate her, and
to abide by the order of the oouit. Stephens v. Lawry, 2 Y. &
C. 87. '

MORTGAGE. {Arrears of interest— CoUaieral security— StaUde
ef Limitations.) Under the statutes 8^4 Will. 4, c 27, s. 42,
and 3 dc 4 Will. 4, c. 42, s. 8, a mortgagee of land, whose mort-
gage debt and interest are secured also by a bond or covenant, is
entitled in a foreclosure suit as well as in a redemption suit to

Digitized by CjOOQIC


charge the mortgaged estate with the full arrears of interest aocni*
ing on the mortgage debt within twenty years before the institution
of the suit; but if the debt and interest are secured only by the
mortgage, the mortgagee is entitled to no more than six years'
arrear of interest. Du Vigier v. Lee^ 2 H. 326.

2. {Foreclosure before answer.) On a motion by a defendant for
an immediate decree in a foreclosure suit, under the statute 7 Geo.
2, or under the jurisdiction of the court, independent of the statute,
the order may be made without answer; and if the bill suggests
that the defendant has parted with the equity of redemption, be
will be allowed to give the required discovery as to that fact upon
affidavit Piggin v. Ckeetham^ 2 H. 80.

3. {Foreclosure — Costs — Pleading.) The court refused to grant
to a mortgagee of leaseholds the costs of citing the next of kin of
the mortgagor in the ecclesiastical court, in order to compel him
to take out administration, because no case was made for the costs
by the bill, and leave was refused to present a petition for the pur-
pose. Ward V. Barton^ 11 S. 584.

4. {Redemption Vy creditor.) The plaintiff in a creditor's si|it, after
a decree for sale of the real estate, may sustain a suit for redemp-
tion against a mortgagee, or a party entitled to a lien on the title
deeds. Christian v. Field, 2 H. 177.

^. {Satisfaction by bills of exchange — CoUateraJ security.) Where
there was a mortgage payable in 1644, with interest only in the
meantime, and in 1839 the mortgagor paid the principal by cheque
and gave two bills, accepted by himself, but drawn by a third
party, for the arrears of interest, and thereupon the following
receipt was executed by the mortgagee: *< London, 2dd Decem-
ber, 1639. Receired the sum of 70002. in cash, and two bills of
exchange as under for dl20Z., drawn by C. ds Co. of M., upoa
and accepted by the said C. the mortgagor, and which cheque for
700QI. and bills for 3120/., making together 10,120/., are in full
of principal and interest due to me upon a mortgage of C.'s free-
hold property in E. and S. for 10,000/., and I do hereby undertake
whenever required, to execute a conveyance of the said property.
(Signed,) T." The deeds were delivered up to the mortgagor
together with this memorandum, but the estate was not reconveyed.
The cheque was paid, but the bills were dishonoured: Held, that

Digitized by CjOOQIC


the mortgagee was entitled against the assignees of the bankrupt
mortgagor to have the deeds redelivered up, and to have a fore-
closure of the estate. Teed v. Carrathera, 2 Y. & C. 31.

6. ( Waste by mortgagor,) The mortgagee in the case of an insuf-
ficient security, and whether in a suit simply to foreclose or sell,
or in a suit by him in the double capacity of mortgagee and cre-
ditor, against the executor of mortgagor, for sale in the first
instance, and then for payment of the deficiency out of the general
estate, is entitled to an injunction to prevent the felling of timber;
but quaere, what is an insufficient security ? King v. Smithy 2
H. -239.

PARENT AND CHILD. (Purchase in son's name.) One seised
of a copyhold for the joint lives of himself and his brother aAer-
wards surrenders it, and takes a new grant for the joint lives of
himself, the brother, and one of the surrenderor's sons: Held,
that the latter, who survived both his father and uncle, was enti-
tled to the copyhold for his own benefit as an advancement.
Skeats v. Skeats, 2 Y. & C. 9.

PARTIES. (Partial administration.) Quare, whether in a suit
originally instituted against the heirs and administrators of a pur-
chaser for performance of a contract, which it was alleged by the
bill the heir had taken upon himself, the administrator having
afterwards died, it is sufficient to bring before the court in his stead
an administrator de bonis non? Cave v. Cork, 2 Y. & C. 130.

PARTNERSHIP. (Conversion.) Two brothers, A. and B., entered
into copartnership without articles, and purchased lands for the
purposes of their trade with money borrowed from C, and had the
land conveyed to themselves in moieties to uses to bar dower.
Shortly afterwards they mortgaged the land to C. in fee, to secure
the money borrowed. A. died intestate, leaving B. his heir; B.
then took D. into partnership. Each of the firm erected trade
buildings on the land, and paid for them, and for the insurance on
them, and also paid the interest on the mortgage money out of
their partnership funds. Ultimately B. and D. paid oif the mort-
gage out of their partnership property, and took a reconveyance
of the land to themselves as joint-tenants in fee. Previous to this
the property had been in a family arrangement, to which B. was
a party, treated as personalty: Held, as against the heir of B.,

Digitized by CjOOQIC


that it was personalty, as part of the partnership assets. Hough"
ton V. Haugkiamy 11 S. 491.

2. (Potter of one partner to bind tkefirm.) The implied authority
of a partner to bind his copartners for the repayment of money
borrowed for partnership purposes, does not necessarily extend to
raising money for the purpose of increasing the fixed capital of the
firm; and therefore a party advancing money to one partner,
knowing that it was for this purpose, cannot as a matter of course
charge the other partners with the loan, unless the transaction
took place with their express or actual authority.

Two partners in a firm advertised their intention of adding
16,000/. to their capital, by admitting one or more additional part-
ners. W. entered into a negotiation with one of the partners, then
acting on behalf of both, on the subject of the announcement, but
aflerwards declining to enter into the firm, advanced a sum of
40007. to that partner by way of loan, on the security of the bills
of the firm, and also of the separate estate of each partner: Held,
that W. had, so far as this evidence went, notice that the loan of
4000/. was an advance, not within the implied authority of the
partner obtaining it, the other partner having authorized the capi«
tal to be raised in a different mode; but, inasmuch as the original
partnership was then existing, and the advance might have been
within the scope of the partnership authority, without reference
to the proposed increase of capital, liberty was given to W. for
the purpose of trying that question, to bring an action on the bill
against the executors of the other partner. Fisher v. Tayler^ 2

PLEADING. (Effect of general charge.) There is no rule of
pleading which requires that the facts creating the title of the plain-
tiff to relief must appear on the stating part of the bill; but an
allegation that the defendant pretends, 6rc., and a general charge
of the contrary of such pretences, is not an averment of the facts
implied in the contrary charge. Houton v. Reynolds^ 2 H. 264.

2. (Title of plaintiff.) An averment in a bill to restrain the setting
up of outstanding terms in ejectment, that H. being or claiming
to be entitled to the premises, devised them to the plaintiff, and
positively averring the title of the plaintiff thereto, accompanied
by statements showing that his claim was founded upon the devise:
Held, to be sufficiently certain upon general demurrer. S. C.

Digitized by CjOOQIC


3. (Parties to supplemental suit,) The rule is, as stated in Dyson
r. Morris, 1 Hare, 413; L. M. No. 59, that where there is any
question to be tried between the new defendant and the original
defendants, the latter must be made parties to the supplemental
suit, and it was so held in a case where the original plaintiff sued
first as sole next of kin to recover from the executor a fund alleged
to be undisposed of, and the new defendant was another party,
who had been discovered to be also one of the next of kin, by
preliminary inquiries, and against whom it was suggested the
executor might have a different defence, such as the statute of
limitations, which he was entitled to state on the record, instead
of trying it, as was offered to him, by inquiry before the master.
Jones v. Hoicells, 2 H. 342.

PORTION. {Satisfaction by legacy.) Estates were settled on
A. for life, remainder to trustees for 1000 years, to raise 5000/.
for the portions of his daughters and younger sons, and subject
thereto, to A. in fee; provided that if A. in his lifetime, or by his
will, should give ta any of his children entitled to portions under
the trusts of the term any 6um of money, &c. for or towards their
advanccnrKsnt in marriage or otherwise, the same should be taken
in part or in full satisfaction (according to its amount) of the portion
thereby provided for that child, unless A. should by writing under
his hand declare to the contrary. A. had eight daughters and
two younger sons. By his will, after reciting the trusts of the
settlement as regarded the portions, he devises this estate, ^* subject
to the 5000/. charged thereon as aforesaid," and also other estates,
to trustees, in trust by sale or mortgage to raise money to supply
the deficiency of his personal estate for payment of his debts and
legacies, and, in the next place, to pay 2000Z. to each of his
younger sons; and he declared, that after the payment of his debts
and legacies and the sums of 2000L<, the estates, or such part thereof
as should remain unsold for any of the purposes aforesaid {sub'
ject nevertheless to any mortgage or mortgages which should be
made by the trustees in pursuance of the potoer thereinbefore
given to them for that purpose), should go to his eldest son : Held,
that the will did not contain any thing that was equivalent to a
declaration that the legacies of 20002. should not be a satisfaction
for the portions of the two younger sons, and consequently that

Digitized by CjOOQIC


they were not entitled to their legacies and also to their shares of
the 6000Z. Papilhn v. Papillon, 11 S. 642.

POWER. {Concurrence of appointee in excessive appointment.)
A valid appointroent may be made to persons not objects of the
power, with the concurrence of those who are objects ; and by an
extension of this principle, it was held that in a settlement grounded
upon an appointment to one who was an object of the iK>wer, and
made with the concurrence of such appointee, a power might be
reserved to such appointee to appoint to the wives or husbands of
the objects of the original power. Goldsndd v. Croldsmid, 2 H.

PRACTICE. {Abatement— Party in two-fold capacity.) Where
trustees had been appointed under an order of the court to act
with an executor in the administration of the personal estate of
testator, and a bill was filed by such trustees and executor jointly,
and the latter died : Held, that the suit had wholly abated, and
that therefore it must be revived, not only against his representa-
tives, but against all the original defendants. Cave v. Cork^ 2
Y. & C. 130.

2. {Confirmaiion of report.) The plaintiff obtaining the order nisi
to confirm the master's report, but not proceeding to make the
order absolute, the defendant may move to confirm the report,
and for that purpose the certificate of no cause shown will be
ordered to be entered on his office copy of the order nisi. Roberts
V. Williams, 2 H. 151.

3. {Contempt — Pro confesso.) A defendant in contempt for not
answering the bill brought to the bar and remanded, and again
brought up by habeas corpus twenty-eight days afler having been
remanded, upon motion to take the bill pro confesso, under the stat.
1 Will. 4, c. 36, s. 15, rule 2, may file his answer afler the
motion is made : and semble, at the latest time on that day. Robin-
son V. Stanford f 2 H. 149.

4. {Contempt — Rights of party in contempt.) Semble, Lord Cla-
rendon's General Order, that afler a contempt duly prosecuted to
an attachment with proclamations returned, no plea or demurrer
shall be admitted bu( upon motion in court, does not apply to the
process at present substituted for attachment with proclamation.
S. C.

Digitized by CjOOQIC


&. {CoMl9 — Correcting vditdke.) Where a plea to the hill is filed,
and the plea is overruled, with liberty to amend, and the amended
plea 18 put in and allowed, the defendant is not entitled to the
costs of correcting his own mistake, hut is entitled to the costs
which he ^ould have had if thr* plea which was allowed had been
the plea which was first filed. Clayton v. Meadows^ 2 H. 26i

6. {CotU — General order of taxation.) Under a general order of
taxation, the master will, without any special direction, exercise a
discretion as to taxing the costs of informal proceedings. 8. C.

7. (Delivery of bill of costs.) A party in a cause who has obtained
and served, according to the twelAh amended order of August,
1841, an order that his solicitor shall deliver his bill of costs
within a month, which is disobeyed, is entitled under the fifteenth
order of August, 1841, to enforce obedience by the writ of attach-
ment Lane v. Oliter^ 2 H. 97.

8. {Bnterif^ appearance — Eighth order.) The court will not
make the order allowing the plaintiff to enter an appearance for
the defendant, under the eighth order of August, 1841, after several
months have elapsed since the service of the subpoena, unexplained,
except upon notice. Radford v. Roberts^ 2 H. 96*

9. {Endence — Re-examination of witness.) A witness, called by
the plaintiff^ and cross-examined by the defendant, before the
hearing, on a point not then in issue in the canse, allowed to be
examined again by the defendant on the same issue, wlMBn raised
before the master under the decree. Whitaker v. Wright^ 2 H.


10. {Exceptions — Form of.) Exceptions to the master's report
ooght to follow in form as well as in substance the objections car-
ried in before the master. Ballard v. ffftte, 2 H. 158.

11. (Chiardian at litem.) Testamentary guardian of an infant trus-
tee, who was residing out of the jurisdiction, appointed guardian
ad litem without either the appearance of the in&nt in court or a
commission. ShuUleworth V. Shuttleworth^ 2 H. 147.

12 {Chiardian at litem — Married infant.) The answer of a mar-
ried woman, who is an infant, cannot be taken either separately
or jointly with her husband, until she has had a guardian assigned.
Coletruin v. NortheoUy 2 H. 147.

1 3. {LunaHc — Guardian at litem.) The order appointing a solicitor
yoL. II. 15

Digitized by CjOOQIC

170 iVMtspmVDxifos.

to be the guardian ad litem of a 1 unatJc, not found so by commission,
may be made under the twenty-eighth order of October, 1842, on
the application of the plaintiff; but it cannot be made without 8Gr«
Tice of notice upon the alleged lunatic* Brooks t. JobUng^ 2 H.

14. {New ordero^^Appearanee of drfendant under iwetO^'Mrd
order.) A defendant, against whom it is prayad that he may be
bound by the proceedings, on service of a copy of the lull under
the twenty-third order of August, ^641, may appear gratis before
or afler be b so serred. Barkleff y. Lord Reay^ 2 H..d09.

15. (ParHe^-^TwefUff4hird order.) Held, that an equitable ten-
ant in tail of an estate derised in trust for sale, with full power of
sale, was not a party who might be senred with a copy of the bill,
under the above order, the object of the order being to rdiere
plaintiffi from the necessity of proceeding against nuwieroue parties
in such cases* S. C.

16. {Preliminary inquiries^) Preliminary inquiries will not be
directed, under the fifth order of the 9th May, 1889, if the direc*
tion involves a decision one way or the other of any question in
the cause. Curd v. Curd^ 2 H. 116.

17. {Same point.) Same decision in similar case. Bree%e v. Eng"
lith, 2. H. 118.

18. {Production of documents.) Documents directed to be dqKWted
with the clerk of records and writs, after an order allowing the
plaintiff or his solicitors to inspect and take copies thereof at the
office of the defendant's solicitcHTs, the solicitors not agreeing by
whom the copies were to be made. Prentice v. PkiUipe^ 2 H. 152.

19. {Retainer of defendant after disclaimer.) Although a defend-
ant disclaim ail interest in the suit at the bar, and his disclaimer
is entered by the registrar, yet the court will retain him on the
record, if there be any question whether he has documents relating
to the suit in his possession, which ought to be delivered up, and
an inquiry will be directed on the subject Teed v. CarrutkerSy
2Y.&C. 31.

20. {Service of copy of bill — Infant.) Upon a motion for leave to
enter a memorandum of service of a copy of the bill upon a defend-
ant under the twenty-fourth of the orders of August, 1841, it is
not necessary to show by affidavit that the defendant is not an
infant. Skerwood v. Rivers^ 2 Y. & C. 166.

Digitized by CjOOQIC


21. {Service efeepy cf KO — Yerijteaiian.) The court, in admit*
liDg the service of an examined copy, under the twenty-fourth
order of August, 1841, obeerved that it ought to appear by affidavit
in what way the truth of the copy had been ascertained. Pea/bM
▼. BotfcA, 2 H. 157.

28. {Same,) Service of copy examined with office copy held good.
Coieman v. Rackkam, 2 H. 954.

22. {Supplewteniai mnt.) AAer the trustees of a charity had put in
their answer, and before the hearing, one trustee resigned and two
died, and new trustees were appointed in their room, who were
not made parties to the suit until after the hearing and judgment,
when a supplemental information was filed agmnst them, praying
for the benefit of the former proceedings against them, and that
they might be removed. The trustees by their answer made a
case against the decree. Held, on exceptions for impertinence,
that they were entitled to make such a defence. AUomey-Generdt
▼, JPatl€r, 2 H. 81.

24. {Title efproeee^ngi.) An order to dismiss, for want of prose*
cution, obtained upon notice of modon, intituled in the name of the
piaintiflT and three defendants, wh^re one of the defendants had
been struck out by amendment, discharged with costs, as irregular.
RamlaU V. CaUeUj 2 H. 186.

2ft. {Same—lHiem^aUfrieM.) Where the original Ull was filed by
M. N. against A. B. apd C. D., and A. B. having died'before an*
awer, leaving a son and hdr of the same christian as wdl as sur-
name, the suit was revived against him and G.D., and witnesses
being examined, the commission was intituled correctly in the ori*
ginal revived suit, but the interrogatories were intituled as in a
suit ** in which M. N. is plaintiff, and A. B. and C. D. defendants.**
The court, adverting to the &cts above stated, and also to the iact,
that in a previous motion of the same sort, by 'the same party,
nothing had been said about this ground <^ objection, refused^
with some hesitation, a motion for suppressing the interrogatories.
Jones V. Smithy 2 T. dc C. 42.

PRODUCTION OF DOCUMENTS. {Delay in asking.) Pro-
duction of documents ordered afler some of them had been marked
as exhibits, although the plaintiff might thereby know which of
them were intended to be used at the hearing. Duke of Becu/ori
V. Taylor^ 2 H. 245.

Digitized by CjOOQIC


2. (Title deed of defendant.) Title deed of the defeodant ordered
to be produced where it contained a recital that might affect him
with constructive notice of the plaintifTs interest in the estate^
Neesom v. Clarksan^ 2 H. 166.

PURCHASER. {Notice— Recital— Lap$e of Hme.) A. having con-
tracted to purchase an estate, devised all his real estate to his
widow, who afterwards married B., who in 1793 obtained a con-
veyance to himself in fee and a trustee for himself by a deed re-
citing the contract, the will and dpath of A., and the marriage,
and ^^ that thereupon B. became entitled to the beneficial interest
in the purchase;" B. afterwards sold the estate to C. who took a
conveyance from B. and his trustee, in which it was recited *^ that
by certain conveyances in the law the property had been granted
and conveyed to the use of B. and his trustee (naming him) in
trust as to the estate of the latter for B.:" Held, that in a suit by
the heir of the widow, that this recital was notice to the purchaser
of the particulars of the conveyance to B., that no other title in B*
was to be presumed, and that the right of the heir of the widow
was not prejudiced by the lapse of ten years and a half since she
became of age without asserting her claim. Nee9om v. Clarkson^
2 H. 163.

REHEARING. (Mitiahe as to law.) Where in a creditor's suit
an executor had omitted to go into evidence before the hearing
against the debt, supposing that he might do so before the master,
but assets being admitted, he could not do so, and a decree for
payment was made, and the executor applied for a rehearing on
the ground of his mistake in the law, but did not give any evidence
of his having been misled, the court refused a rehearing, but
allowed the case to stand over for the plaintiff to bring an action,
of which the executor was to pay the costs in any event Wood-
gate V. Field, 2 H. 211.

SALE UNDER DECREE. (Decree impeachable by infants.)
Where in a suit to carry into efiect the trusts of a will, one of
which was for sale of an estate at the death of a particular person,
a decree was made for sale during the life of such person, no spe-
cial ground for such anticipated sale being shown, and some of the
parties interested in the proceeds were infants: Held, that a good
title could not be made under the decree. Blacklow v. Laws,
2 H. 40.

Digitized by CjOOQIC


SEPARATE USE. (CctuirmeHom rf ike word "^fraper/*) Whera
the testator directed an aDonity to be paid by the trustees ** into
the proper hands of his daughter A. for her own proper use and
U iiefit,** the court, upoo the authority of Tyler •• Lake, 2 R. di
M. 183, rdoctantly decided that this was not a trust for the sepa*
rate use. Blaekhw y. Lam, 2 H. 49.

SETTLEBIENT. {General wordM—Properiff tfier-ue^red.) A
woman being entitled to personal estate under an English will,
and also to shares of real and personal estate under an American
will of the same testator, which wills did not either of them refer

Online LibraryWilliam S. Hein & CompanyAmerican law magazine, Volume 2 → online text (page 16 of 44)