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128

Analytical Digest of Cases: Courts of Equity.

for an injunction to restrain execution, which not been amended: it was dismissed with

Cattell v. Simons, 8 Beav. 243.
And see Administration Suit.

DEVISEES.

Devisees not bound by the action brought,

the court refused on two grounds,-1st, be- costs. cause the decree for an account and administration of the general estate was not absolute, but was conditional on the mortgaged property proving insufficient to satisfy the plaintiff's demand; and 2ndly, because the judgment or the inquiry as to damages had against the creditor acquired a right to the goods of the executors, were entitled to have the quesdebtor, by virtue of the writ of fi. fa., from the tion of the liability of the estate of the testator teste of the writ, and therefore paramount to on the covenant tried in an action defended by the right of the executor. Ranken v. Harwood, the devisees themselves. 5 Hare, 79. 5 Hare, 215; Ranken v. Boulton, 5 Hare, 215. Cases cited in the judgment: Lee v. Park, 1 Keen, 714; Clarke v. Lord Ormonde, Jac. 108; Vernon v. Thellusson, Phill, 466.

CREDITOR'S SUIT.

1. Voluntary assignment of lost deed.-Qualifying witness to prove its contents.-On the hearing of a creditor's suit in which the plaintiff claimed as assignee of a deed of covenant alleged to have been executed by the testator, it appearing from the evidence of one of his own witnesses, that the benefit of the deed, which was not forthcoming, had been assigned to him without consideration, for the express purpose of qualifying the covenantee to be a witness to prove its contents, and the plaintiff having failed in the due preliminary proof of the execution of the instrument, and of its loss, the Lord Chancellor reversed the decree of the court below, by which certain inquiries were directed as to these points, and retained the bill with liberty to the plaintiff to bring an

action.

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2. Administration of assets. Judgment.Priority. In a creditor's suit the plaintiff did not satisfactorily prove his debt, and the bill was retained with liberty to establish the debt at law.

tors.

Semble, that a judgment obtained by him, under these circumstances, would not give him a priority over the other simple contract crediGibert v. Hales, 8 Beav. 236. 3. Priority.-Mortgage.-Laches.-A bondcreditor proved his debt under a decree in a creditor's suit; he also claimed to have an equitable mortgage for the amount. The matter stood over to amend his charge, &c. He neglected to do so, and was reported a bond-creditor only. The estate was sold and the money paid into court, and an apportionment directed. Nine years after, his personal representative presented a petition for liberty to go in and establish his mortgage, alleging that he had recently discovered that the charge had

EVIDENCE.

Morse v. Tucker,

Where the issue raised by the bill and answer was, whether the plaintiff had or had not signed a document under the representation and belief that it was an authority to another to receive the plaintiff's rents, when it was in fact a contract for the sale of his estate, evidence of the value of the estate cannot be regarded as showing that, if a purchase, it was a purchase from a distressed man at an undervalue, but can only be regarded as bearing on the probability or improbability of the alleged sale. Preston v. Wilson, 5 Hare, 194.

EXECUTOR DE SON TORT.

See Account, 1.

EXECUTOR.

Assent to legacy. It is not sufficient to prove an assent to a legacy by the executors to induce the court to order payment of it to a legatee, but the executors must either appear upon the petition, or service of it upon them must be proved. Parker v. Watts, 33 L. O. 283. See Creditor; Receiver.

FOREIGN LAW.

As to the mode in which a foreign law ought to be proved in an English court of justice, and observations on the difficulties in adjudicating thereon.

It is a rule of English law, that no knowledge of foreign law is to be imputed to an English judge sitting in a court of mere English jurisdiction.

As cases arise, in which the rights of parties litigating in English courts cannot be determined, without ascertaining, to some extent, what is the foreign law applicable in such cases; foreign law and its application, like any other results of knowledge and experience in matters of which no knowledge is imputed to a judge, must be proved as facts are proved, by appropriate evidence, i. e., by properly qualified witnesses, or by witnesses who can state, from their own knowledge and experience, gained by study and practice, not only what are the words in which the law is expressed, but also what is the proper interpretation of those words, and the legal meaning and effect of them as applied to the case in question.

There may be cases in which a judge may take upon himself to construe the words of a foreign law, and determine their application to the case in question, especially if there should be a variance or want of clearness in the testimony.

Analytical Digest of Cases: Courts of Equity.

129

Semble. Witnesses, in giving their testimony | died four months afterwards. Her husband on foreign law, may, if they think fit, refer to attested the deed of appointment as a witness. laws or to treatises, for the purpose of aiding Twenty-four years afterwards the wife died, in their memory upon the subject of their examination; but, in general, it is the testimony of the witness, and not the authority of the law or of the text writer, detached from the testimony of the witness, which is to influence the judge. A party is not bound to produce a written law or decree which his witness, in proving a foreign law, refers to.

Witnesses, in proving a foreign law, referred to certain passages in law books. Held, that this did not give the opposite party a right, without further proof, of reading any other passages from the same works.

On a question of foreign law, a joint written opinion given by two jurists, was exhibited to them on their examination, which they verified as being according to the law of the foreign country. Held, that this evidence was receivable. Earl Nelson v. Lord Bridport, 8 Beav.

527.

Cases cited in the judgment: Lindo v. Belisario, 1 Hagg. C. C. 216; Dalrymple v. Dal rymple, 2 Hagg. C. C. 54, 58, 81; Collier v. Simpson, 5 Carr. & P. 75.

GUARDIAN AND WARD.

Injunction to stay proceedings at law.-Securities obtained by a guardian from his ward will be relieved against, although they may have passed into the hands of third parties, provided the holders of them can be affected

with notice of the relationship existing between the parties at the time the securities were obtained, Maitland v. Irving, 33 L. O. 256.

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the lifetime of her husband, who then claimed
the fund as administrator of the child. The
court directed issues to try whether the power
had been executed without fraud on the part
Gee v. Gurney, 2
of the husband and wife.
Coll. 486.

See Waste, 3.

INCUMBENT.

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1. Ward.-Marriage settlement.-The court will not, even with the consent of a married ward, order payment of a fund belonging to her to the husband, but will order the usual reference to the Master to approve a settlement, leaving the husband to make such proposals before the Master as he may think fit. Russell v. Nicholls, 33 L. O. 113.

An infant is entitled to treat a person who 2. Bailiff.-Injunction though not prayed.enters on his estate during his infancy as his bailiff, who is accountable as such.

decree accounts of the estates of infants against The jurisdiction which this court has to persons entering thereon during their minority, is not taken away by the fact that at the time when the bill was filed the infant had attained

21.

Excepted case, in which an injunction was granted, though not prayed for by the bill. Blomfield v. Eyre, 8 Beav. 250.

3. Next friend.-Difficulties in dealing with suits filed by strangers on behalf of infants. On the one hand you may encourage useless and expensive litigation, on the other, you may discourage interference very often necessary for their protection. Cross v. Cross, 8 Beav. 455, 4. Guardians in Ireland. - Guardians were appointed in Ireland to infants brought up, educated, and domiciled there. Their fortunes were in court in England. The court adopted the proceedings in Ireland, appointed the same persons guardians, notwithstanding they resided out of the jurisdiction, and ordered payment to them of the maintenance money. Daniel v. Newton, 8 Beav. 485.

Cases cited in the judgment: Seeling v. Crawley, 2 Vern. 386; Augier v. Augier, Prec. Ch. 496; Fitzer v. Fitzer, 2 Atk. 511; Fletcher v. Fletcher, 3 Bro. C. C. 619 (cited); Guth v. Guth, ibid. 614; Legard v. Johnson, 3 Ves. 352, Bateman v. Countess of Ross, 1 Dow, 235; St. John v. St. John, 11 Ves. 526; Worrall v. Jacob, 3 Mer. 256; Ros v. Willoughby, 10 Price, 2; Elworthy v. Bird, 2 Sim. & Stu. 572; Logan v. Birkett, 1 Myl. & Keen, 220; Frampton v. Frampton, 4 Beav.287; Jones v. Waite, 9 C. & F. 101; More v. Freeman, Bunb. 205; Hyde v. Price, 3 Ves. 437; Cooke 1. Covenant. An application for an injuncv. Wiggins, 10 Ves. 191; Clough v. Lam-tion to restrain an alleged breach of covenant bert, 10 Sim. 174; Wellesley v. Wellesley, ib. had been once ordered to stand over until the 256; 4 Myl. & Cr. 554. decision of two legal questions raised by the 2. Appointment by wife.-Husband's right as defendant. On those questions being decided administrator.-A married woman, having a in the plaintiff's favour, and the motion coming power to appoint a fund to her children, ap-on again, the defendant raised a third legal pointed it to an only child of tender years, who objection, and the court below, at his request,

INJUNCTION.

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Analytical Digest of Cases: Courts of Equity.

directed a case to be stated for the opinion of a court of law upon it, but, on the ground of the delay in bringing it forward, granted an injunction in the meantime. On appeal, however, the Lord Chancellor dissolved the injunction, notwithstanding that circumstance, on the ground of the much greater facility of indemnifying the plaintiff than the defendant, according as the one or the other might succeed at law.

Where the interference of the court by injunction depends upon a legal right which is disputed, the court ought, for its own security, to put the matter into a course for ascertaining that right; and if that is to be done by sending á case for the opinion of a court of law, this court ought not to leave it to the option of the defendant, but ought itself to direct a case to be prepared, with a reference to the Master to settle it, in case the parties differ. Rigby v. Great Western Railway Company, 2 Phill. 44. 2. Principles which ought to regulate the exercise of the jurisdiction by injunction. Spottiswoode v. Clarke, 2 Phill. 154.

And see Waste, 1, 3.

JURISDICTION.

Appeal.-An appeal was made to the Lord Chancellor against an order of the Master of the Rolls. What was done did not appear, further than that the Lord Chancellor either decided it on the merits, or refused to hear it on the ground that the defendant was in contempt for non-payment of costs. A motion was afterwards made to the Master of the Rolls to discharge the order, but he held he had no jurisdiction to interfere. Oldfield v. Cobbett, 8 Beav. 292.

LACHES.

Admission of assets. Decree.-Taxation.Observations as to the mode and forms of drawing up and passing decrees in the registrar's office.

By consent, the registrar, in drawing up a decree, sometimes permits such alterations to be made in it as he believes the court would sanction, and which are binding on the parties. Strict regularity requires that every word of a decree should be pronounced or dictated by the court, and that, without a subsequent order of the court, or at least without personal communication with the judge, no alteration should be made. This became at first inconvenient, and at length impracticable, and now the registrars, upon consent, allow alterations, as the admission of assets and striking out the direction to take accounts, which would have been necessary if assets had not been admitted. The admission is usually stated to have been made by the party's counsel.

As to the mode of proceeding to be relieved from an admission in a decree fraudulently inserted, or consented to by mistake.

relief, and that the relief can be given with due regard to the just interests of others.

It is doubtful whether the form of proceedings in such cases is strictly settled, or whether the same form is exclusively applicable to all cases. If the application for relief is made immediately and before any proceeding of any kind has been had, and if the evidence be clear, a rehearing which places everybody in the same position as when the consent was given or supposed to be given would probably be suffcient. If the application be after the lapse of years, after a devolution of title, and after various proceedings have been had, the parties may have done or omitted to do so many acts materially affecting their rights, as to make it in the highest degree unjust to place them in the same position as they were in at the time when the consent was given or supposed to be given. In such a case, a rehearing could scarcely be thought of itself sufficient. Again, there may be differences in this respect between cases of fraud and cases of mistake. In cases of fraud the party aggrieved may file an original bill for relief, and it may well be thought that he ought always to do so.

A decree made in 1830, contained an admission of assets: a petition of rehearing and a special petition to be relieved from the admis sion were presented, which the court conceived to be grounded on a fraud committed. Held, in 1845, that whether fraud or mistake had been committed, yet, considering the circumstances of the case, the length of time that had elapsed, the transactions that had taken place, the absence of documents, and the imperfections of the evidence, justice could not be done upon a mere rehearing of the cause as it stood in 1830.

Observations as to the allowance to solicitors in taxation of costs for business not necessary or required for the interests of their clients, by way of compensation for services for which they are inadequately remunerated. Distinction between this and fictitious charges for important business as done, which, in fact, has been neglected. Davenport v. Stafford, 8 Beav. 503. And see Waste, 2.

LEGACY.

Per capita.-Gift of a legacy to A. for life, with remainder to B. for life, and after the death of the survivor, upon trust to pay it "to, between, or amongst C., if then living, but if then dead, to, between, and amongst C.'s children and the children of B. then living, equally," &c. Held, that C. and the children of B. took per capita. Rickabe v. Garwood, 8 Beav. 579. See Executor.

LUNATIC.

1. Part maintenance of wife out of her sepaIf a party has been induced by fraud to con-rate income.-The court will not order a sale of sent, or has by mistake consented to a decree, the court has the power to relieve him, and will do so, upon being satisfied that fraud or mistake existed, that the conduct of the party himself had not deprived him of the title to

stock bequeathed to the separate use of a married woman, who afterwards became insane, for the purpose of reimbursing her husband the medical and extra expenses occasioned by her lunacy, and which had been discharged by the

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See Waste, 1.

husband out of his own income. Re Alvey. 32 L. O. 395.

PARTNERSHIP.

Production of documents.-A partner who

2. Carriage of commission.-Appointment of committee. Where there is a contest between several parties for the carriage of a commission of lunacy, the court considers only which of has mixed accounts of the partnership transthem is most likely to bring out the truth, and no regard is paid to proximity of relationship and other considerations of that kind, though these are of importance when the question is as to the appointment of a committee.

In a contest for the committeeship of lunatic, the party who has the carriage of the commission is not on that ground entitled to any preference.

Where the issuing of a commission of lunacy is opposed, or the carriage of it contested, the court will not prospectively give leave to any party to propose himself as committee in the event of the subject of the commission being found of unsound mind, but in issuing the commission will direct that no proceedings be taken for the appointment of a committee until further order. Webb, in re, 2 Phill. 10.

3. Power to deal with separate estate of married woman for benefit of husband and children. A wife being of unsound mind and in confinement, and her husband being poor and unable to maintain her, the court ordered that the surplus income of her separate property, after providing for her maintenance, should be paid to the husband, but refused to apply any part of the principal fund to reimburse the husband what he had actually paid for her past

maintenance.

actions with accounts of his own private affairs
is bound, in a suit instituted for an account of
the partnership transactions, to produce the
book containing such accounts.
Willis, 33 L. O. 567.

PUBLIC POLICY.

Pesterre v.

nullity of marriage on the ground of impotency
An agreement to put an end to a suit for
Wilson, 14 Sim. 405.
is not contrary to public policy. Wilson v.

RECEIVER.

Executor.-Account.-Interest.— Principal and surety.-The estate of a deceased receiver was liable to make good certain payments, and his executors neglecting to pay pursuant to order, the surety was directed to pay the amount with interest at four per cent. Clements v. Beresford, 32 L. O. 448.

SPECIALTY DEBTS.

Contribution between specific legatees and devisees.-A testator having made a particular devise of all his real estates, and having bequeathed several specific legacies, dies indebted by specialty and simple contract. His personal estate not specifically bequeathed is more than sufficient to pay his simple contract debts, but not sufficient to pay his specialty debts: Held, that the amount necessary to complete the payment of the specialty debts must be conEd-tributed rateably by the specific legatees and devisees. Tombs v. Roch, 2 Coll. 490.

Quare, whether, if the expenses of her past maintenance had been still unpaid, that circumstance would have made any difference. wards v. Abrey, 2 Phill. 37.

4. Appointment of committee. A bastard tenant for life of real estates being found lunatic, leave was given to his natural daughter, who had resided with him up to the time of his confinement, to carry in proposals for a committee of the estate as well as of the person, as a check upon the remainder-man. Webb, in re, 2 Phill. 116.

5. Advancement out of lunatic's estate for his son.-Application for a reference as to the propriety of advancing a large sum of money out of the capital of a lunatic's estate to enable his son to purchase an estate refused. Thomas, in re, 2 Phill. 169.

MARRIED WOMAN.

1. Domicile.-Compromise.-Compromise of suit by married women domiciled in France sanctioned without reference to the Master, on proof that they had concurred in notorial acts, which, by the law of France, were binding on them, and that the subject-matter was mere personalty. Chameau v. Riley, 8 Beav. 269.

2. Execution of deed not compellable.-The court will not make a peremptory order upon a married woman to execute a conveyance of an estate not settled to her separate use. Jordan v. Jones, 2 Phill. 170.

Case cited in the judgment: Foxon v. Foxon,
Rolls Court, 1836.

See Lunatic, 1, 2.

Cases cited in the judgment: Galton v. Han-.
cock, 2 Atk. 424; Forrester v. Lord Leigh,
Ambl. 171; Aldrich v. Cooper, 8 Ves. 582;
Pearce v. Loman, 3 Ves. 135; Makeham v.
Hooper, 4 Bro. C. C. 153; Clifton v. Burt, 1-
P. W. 678, 679; O'Neal v. Mead, 1 P. W. 693;
Haslewood v. Pope, 3 P. W. 322; Mirehouse
v. Scaife, 2 Myl. & Cr. 695, 699; Hamby v.
Fisher, Ambl. 127; 1 Dick. 104; Tipping v.
Tipping, 1 P. W.729; Duke of Devonshire v.
Atkins, 2 P. W. 381; Silk v. Pryme, 1 Dick.
384; 1 Bro. C. C. 138, cited; Long v. Short,
1 P. W. 403.
And see Trust, 8.

SPECIFIC PERFORMANCE.

See Husband and Wife, 1.

TAXATION OF COSTS.

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Analytical Digest of Cases.-Superior Courts: Lord Chancellor.

fidence subsisting between the trustee and the England was compellable in a court of equity parties with whom he communicated. Tugwell to re-invest the stock in the name of the other v. Hooper, 33 L. O. 328. trustee. Sloman v. Bank of England, 14 Sim.

8. Debt by specialty.-The money due in respect of a breach of trust where the trust is created by instrument under seal is a specialty debt. Wood v. Hardisty, 2 Coll. 542.

2. Recommendation in a will to an office. 475. Words of advice not a trust.-Injunction.-The expression of a testator's wish and desire that the trustees of his will should, whenever they might have occasion for a receiver, agent, or manager of his estates, appoint a certain person, does not confer upon the latter an irrevocable right to be so appointed.

An injunction will not be granted to restrain the anticipated commission of an act where the plaintiff's equity (if any) would not arise until such act should have been done. Finden v. Stephens, 33 L. O. 186.

3. Payment of money into court.-A trustee charged with misapplication of trust-monies admitted by his answer that he had misapplied

three sums, and set forth a debtor and creditor account in which he credited himself with, amongst others, those three sums, and also with a fourth sum which was equally inadmissible,

but which turned the balance of the account

in his favour. On a motion for payment of the three sums into court, Held, that the plaintiff, not having in his motion challenged the fourth sum, the motion could only be granted to the extent to which the answer admitted a balance after striking those three items out of the discharge. Nokes v. Seppings, 2 Phill. 19.

4. Staying proceedings on the application of a defendant. After a suit for the execution of the trusts of a deed, by which real estates had been vested in trustees for sale and payment of incumbrances, which were very numerous, was nearly ripe for hearing, the court, at the in stance of the owner of the estates, ordered all the proceedings to be stayed on payment to the plaintiff of all his pecuniary claims in the suit, and costs, (all other parties to the deed consenting,) although the plaintiff insisted that the execution of the trust in this suit would incidentally affect other objects in which he was interested in reference to the estates comprised in it. Damer v. Earl of Portarlington, 2 Phill.

30.

5. Forfeiture. -A courtof equity will declare and give effect to a forfeiture, where such forfeiture is incidental to the administration of a trust. Duncombe v. Levy, 5 Hare, 232.

Case cited in the judgment: Bartlett v. Hodgson, 1 T. R. 42.

WARD.

See Guardian and Ward; Infant, 1, 4:

WASTE.

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1. Mortgagor and mortgagee. - Injunction, though not prayed. After a decree in a foreclosure suit, a mortgagor in possession began tion, though no injunction was prayed by the to commit waste; he was restrained by injunc

bill. Goodman v. Kine, 8 Beav. 379.

2. Tenant for life and remainder-man, mitted equitable waste in 1809, during the inLength of time.-Laches.-Tenant for life comfancy of his eldest son, the first tenant in tail In 1828, he was cognizant of the act of waste in remainder. The son came of age in 1819. committed by his father, but did not institute any suit on account of them until 1840, which was two years after his father's death.

Held, that the suit was not barred by length of time. Duke of Leeds v. Lord Amherst, 14 Sim. 357.

And see Laches.

3. Incumbent.-Patron.-Injunction.-It cannot be decided as a general proposition, without any exception, that the conversion of ancient meadow into arable is to be treated as waste.

In respect to waste, a parson or vicar is not to be considered as merely lessee for years, or as tenant for life, under a will or settlement.

The court will not restrain an incumbent from ploughing up a meadow infested with moss and weeds, for the purpose of laying it down again in grass when properly cleaned.

Whether a patron is in any case entitled to an injunction to restrain the incumbent from ploughing up ancient meadows, quære. Duke of St. Alban's v. Skipworth, 8 Beav. 354.

Case cited in the judgment: Simmons v. Norton, 7 Bing. 618.

And see Injunction.

6. Property lost.-Indemnity of new trustees. -In a suit to appoint new trustees of a settlement, where a part of the trust property had been lost by previous negligence or breach of RECENT trust, the court refused to confine the trust to the remaining property, but appointed the new trustees of the whole of the property comprised in the settlement, directing (for the protection of the new trustees) a reference to inquire whether it would be proper to take proceedings for the recovery of the property which had been lost. Bennett v. Burgis, 5 Hare, 295.

7. Bank of England.-Forgery.-One of the two trustees of a sum of stock sold it out under a power of attorney to which he had forged the signature of his co-trustee, and some time afterwards absconded. Held, that the Bank of

DECISIONS IN THE SUPE-
RIOR COURTS.

REPORTED BY BARRISTERS OF THE SEVERAL
COURTS.

Lord Chancellor.

Flight v. Marriott. April 30, 1847.

RETURN OF DEPOSIT ON APPEAL.

The appellant is entitled to the return of the sum deposited on_presenting_a petition of rehearing, if the decree appealed against is reversed; and he is not deprived of this

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