148 Candidates Passed at the Examination-Easter Term.—Analytical Digest. John Howard Williams, 16, Bedford Row Joseph Randolph Mullings, Cirencester John Rowland, late of Wrexham-John James, Wrexham Edwin Eddison, Leeds-George Rawson, Nottingham Richard Anthony Poole, Carnarvon-William Lowe, 2, Tanfield John Slade, Yeovil-John Sherwood, 9, King's Bench Walk James Hodgson, 5, Lincoln's Inn Fields Edward Bower, Birmingham. Thomas Roscoe, Nether Knutsford John Finchett Maddock, Chester. Thomas Carr, Newcastle-upon-Tyne-Mark Lambert Jobling, Joseph Sandford, Winchcomb-Gregory James Sarmon Tom- John Pexall Kidson, Sunderland-John Kidson, Sunderland James Saunders, Chorlton-upon-Medlock and Manchester Samuel William Haynes, Warwick Christopher Stevens, Havant-Henry Walker, 5, Southampton John Willington Tarleton, Wednesbury-Richard Henry Tarleton, Birmingham-Frederick William Wilson, Sheffield John Sandell, 22, Bread Street, Cheapside-William Strickland Cookson, 6, New Square, Lincoln's Inn John Gates, Peterborough William Thurgood, Saffron Walden-William Watson Oldershaw, 7, Tokenhouse Yard William Boycot, Kidderminster William Henry Turner, 8, Mount Place, Whitechapel Road Jonathan Elliott Gough, Hereford Julius Gaborian Shepherd, Faversham Wetherfield, George Manley John Thrupp, 2, Winchester Buildings, City Joseph William Allan, 1, Frederick's Place, Old Jewry Armorer Donkin, Newcastle-upon-Tyne. ANALYTICAL DIGEST OF CASES, REPORTED IN ALL THE COURTS. Courts of Equity. PLEADINGS. [For the Decisions on the Construction of Wills, see p. 56, ante; Law of Property and Conveyancing, p. 74, ante; Construction of Statutes, p. 101, ante; Principles of Equity, p. 127, ante.] ABATEMENT. Dismissal. A suit having become defective, in consequence of the bankruptcy of a coplaintiff, the defendant moved to dismiss absoÎute: Held, that the court on such a motion, might order the plaintiff to supply the defect within a limited time, or in default, that the bill might be dismissed. Ward v. Ward, 8 Beav. 397. AMENDED BILL. 1. After demurrer allowed.-Where the defendant omitted to give the plaintiff notice at the proper time that a demurrer to the bill had been filed, and the plaintiff irregularly obtained an order as of course to amend his bill, on or before a certain day, which order he obtained after 12 days from the filing of the demurrer, but within 12 days from the time he received the notice, the Vice-Chancellor on a special motion, (made after the expiration of the former order,) restored the bill, and gave the plaintiff leave to amend; but the Lord Chancellor, on appeal, discharged the order. Matthews v. Chichester, 5 Hare, 207. Analytical Digest of Cases: Courts of Equity. 149 2. Delay-In general an order of course to it is not proper for the plaintiff, after filing such amend obtained at the Rolls in a cause attached supplemental bill, to issue process to compel to another branch of the court cannot be discharged, except for irregularity, or by the Lord Chancellor. But quære, whether the order might not be discharged at the Rolls, upon an application there, founded on an opinion expressed as to the merits of the case by the judge before whom the cause is. Arnold v. Arnold, 33 L. O. 566. 3. Delay. An order to amend obtained after a notice of a motion to dismiss, in a case where there had been great delay in getting in the answer of one of the defendants, discharged as an attempt to evade the orders of the court though within the strict letter. Foreman v. Gray, 33 L. O. 586. 4. Order of course. An order to amend which the plaintiff is entitled to obtain as of course, is considered as an order of course, though made on a special motion; and a se cond order to amend obtained as of course after the making of such an order is irregular. The Master of the Rolls will not order amendments made under an irregular order to amend, to be taken off the file, if the cause is not at the Rolls. Edge v. Duke, 34 L. O. 11. 5. Delay-Costs.--One order to amend may be obtained as of course, so long as the answer of any defendant to the bill remains outstanding, notwithstanding the service of a notice to dismiss, and great delay in getting in the answer of that defendant. Therefore, a motion to discharge such an order for irregularity was refused, but without costs. Freeman v. Gray, 33 L. O. 452. ANSWER. 1. Plea.-Purchase for valuable consideration.-Bill of exchange.—If a bill, after stating the circumstances on which the plaintiff's equity is founded, charges that the defendant, before his title to the subject in dispute accrued, had notice of the several circumstances therein stated, an answer denying that charge in the same general terms is sufficient, notwithstanding it is filed to support a plea of purchase for valuable consideration. Gordon v. Shaw, 14 Sim. 393. 2. Delay. Order 43 of May, 1845.-The order 43 of May, 1845, which directs that commissioners to take answers are to be made returnable without delay, does not preclude the answer from being filed, although delay may in fact have occurred. Hughes v. Williams, 5 Hare, 211. 3. Correction of.-Mode of altering and correcting the title of an answer, which purports to be the answer of several defendants, where such answer has been sworn by some of such defendants, but the others refuse to join in it. Thatcher v. Lambert, 5 Hare, 228. And see Trustees; Bankrupt. the bankrupt himself to answer the original bill. It is the same when both the plaintiff and defendant become bankrupt before the defendant has answered the bill, and the supplemental bill is filed by the assignees of the plaintiff against the assignees of the defendant. The clerk of record and writs will, in such cases, give the usual certificate for setting down the cause, without any answer from the bankrupt being on the file. Robertson v. Southgate, 5 Hare, 223. CHARITY. Form of suit to take accounts and settle a scheme.--The proper form of suit to administer the funds of a charity is the information of the Attorney-General, but the trustees may file a bill against the Attorney-General to have the accounts of the charity taken, and to be personally discharged from liability in respect thereof, submitting to such account as the Attorney-General would be entitled to ask against them in an information; and in the same suit, if the Attorney-General desires it, the court will direct a reference for a scheme. The Governors of Christ's Hospital v. The AttorneyGeneral, 5 Hare, 257. CREDITOR'S SUIT. 1. Supplemental bill.-After decree in a creditor's suit, the plaintiff died, leaving no personal representative. The decree was ordered to be prosecuted, on the petition of another creditor, without a bill of revivor. Brown v. Lake, 2 Coll. 620. 2. Proof of debt.-In order to found a decree in a creditor's suit affecting real estate it is essential that the plaintiff's debt should be proved by interrogatories before the examiner. Vernon v. Rudd, 33 L. O. 405, CROSS BILL. 1. Security for costs.-Plaintiff out of jurisdiction. The plaintiff in a cross suit, (impeaching an instrument which the original suit seeks to enforce,) although residing out of the jurisdiction, is not bound as against the plaintiff in the original suit, to give security for costs. Vincent v. Hunter, 5 Hare, 320. 2. Reference to the Master, under the 122nd Order of May, 1845, to distinguish the parts of a cross bill which were of unnecessary length, and to ascertain the costs thereby occasioned. Woods v. Woods, 5 Hare, 229. DEMURRER. 1. Specific performance.-Railway scrip certificates.-Demurrer to a bill against the provisional committee of a projected railway com.. pany for the specific performance of an agree ment to deliver to the plaintiff a certain number of scrip certificates, allowed; there being no allegation in the bill that the defendants had in their possession any scrip to deliver, but statements from which the contrary might rather be inferred. Quære, whether such an agreement is a sub 150 Analytical Digest of Cases: Courts of Equity. ject for specific performance. Chichester, 2 Phill. 27. Columbine v. that by the judgment of the coroner the defendant is outlawed, is not until entered on the roll, so returned the exigent accordingly," and that the judgment was entered and registered. The defendant pleaded nul tiel record in this form: 2. Title to shares in mines.—Reference.-To a sufficient record of the outlawry. a vendor's bill for specific performance of a An information founded on the defendant's contract to purchase shares in mines, insisting outlawry stated, that the defendant did not that the plaintiff was not bound to give other appear on the last proclamation, whereby he evidence of his title to the shares than attested became and was outlawed, and that the sheriff extracts from the cost-book or registers of the mines, and that the defendant had refused to accept such evidence, but not alleging that the plaintiff was unable to give other evidence of his title, the defendant demurred. Held, that as the plaintiff was not precluded from giving other evidence of his title, if necessary, the demurrer must be overruled. Curling v. Flight, 5 Hare, 244. And see Amended Bill; Parties, 1, 6; Privileged communication. DISMISSAL. 1. When, after notice to dismiss, the plaintiff files a replication before the hearing of the motion, the only order made is, that the plaintiff do pay the costs of the motion; and the practice is not altered by the General Orders of 1845. Corry v. Curlewis, 8 Beav. 606. 2. Before the hearing. Costs. -Order, on the application of the plaintiff, to dismiss his bill, with costs, against disclaiming defendants, without prejudice to any question how the costs should ultimately be borne. Baily v. Lambert, 5 Hare, 178. that no judgment of outlawry had been entered or registered, and that there was no record of the outlawry, leaving uncovered the allegation of the return of the writ certifying the judgment of outlawry. Held, that the plea was good in form. Attorney-General v. Rickards, 8 Beav. 380. PARTIES. 1. Demurrer.-On a demurrer to a bill seeking payment of a legacy out of assets come to the hands of the defendant, who was the husband of the sole executrix, deceased: Held, that an allegation that all the testator's debts and the other legacies bequeathed by his will had been paid, and there were assets ultra in the hands of the defendant to satisfy the plaintiff's demand, was not sufficient to dispense with the presence of a personal representative of the testator: the allegation being one which, even if admitted by the defendant, the court would not take his word for. 3. Replication.-Costs.-Notice of motion. The absence of a necessary party to any part by one of two defendants to dismiss the bill for of the relief prayed by a bill, though the prayer want of prosecution. The plaintiff thereupon be in the alternative, is a good objection on filed a replication to the answer of that defend- demurrer. ant. The other defendant had not appeared. On the motion being made, the plaintiff undertook to dismiss the bill against the other defendant, whereupon the court refused the motion, but ordered the costs to be paid by the plaintiff. Heanley v. Abraham, 5 Hare, 214. And see Abatement. An allegation that the defendant, being the person entitled to take out representation to a deceased party, refuses to apply for it, and impedes the plaintiff in procuring a grant of it to any other person, is not a sufficient answer to a demurrer founded on the absence of such representative; but secus if the bill alleges that the grant of representation is actually in litigation in the ecclesiastical court. Penny v. Watts, 2 Phill. 149. 2. Principal and agent.-Misjoinder.-Bill, for an account, by a principal against his agent and a person employed by the latter as his subagent, dismissed as against both, notwithstanding the sub-agent had had the entire management of the principal's affairs, and had communicated with him directly on the subject of them. Lockwood v. Abdy, 14 Sim. 437. 3. Power of sale.—Right of administratriz to mortgage. An equitable mortgagee having taken from the administratrix of the mortgagor a legal mortgage, containing a power of sale, and having filed his bill to enforce specific performance of a contract for sale under the power, the court declined to entertain the suit, in the absence of the administratrix and the parties beneficially interested under the mortgagor. Sanders v. Richards, 2 Coll. 568. 4. Bill of exchange.-The acceptor of a bill of exchange, who had by the hands of the drawer as his agent paid the amount of the bill after it became due to an indorsee for value, Analytical Digest of Cases: Courts of Equity. PRO CONFESSO. 151 without procuring it to be delivered up, filed sufficient to allege generally that they were rehis bill against such indorsee for value, and a ceived in a confidential capacity; enough must subsequent indorsee, charging that the indorsee be stated in the demurrer to show that they Walsh v. Trevanion, 34 to whom the payment had been made, had were confidential. afterwards indorsed the bill to the other de- L. O. 62. fendant, without consideration, in order to recover the money from the plaintiff a second time, and praying that an action commenced against him to the amount might be restrained, and the bill delivered up to be cancelled. Demurrer, for want of the drawer as a party to the suit, overruled. Earle v. Holt, 5 Hare, 180. Practice as to taking bills pro confesso. The "order referred to in the 81st General Order of May, 1845, is not the "decree," that the bill be taken pro confesso, but the "preliminary order," that the clerk of records do attend with the record. The object of the 81st Order of May, 1845, was to assimilate the practice where there is one defendant to that when there are several. Brown v. Home, 8 Beav. 607. PUBLICATION, PASSING. Cases cited in the judgment: Kemp v. Pryor, 7 Ves. 237; Penfold v. Nunn, 5 Sim. 405. 5. Where one of two executors proves a will, power being reserved to the other to come in and prove, the probate on the death of Aid of a foreign court.—This court will order the executor enures to the other, and it is not necessary therefore in a suit for the adminis- publication in a suit to perpetuate testimony to tration of the testator's estate to bring before pass in aid of a similar suit in the court of Irethe court any other personal representative than land. Morris v. Morris, 33 L. O. 476. the surviving executor. Howard v. Gash, 32 L. Q. 396. 6. Demurrer.-A demurrer for want of parties cannot be sustained, because the bill asks some relief, which could not be given in their absence, if there is relief asked which could be given on the record constituted as it is. Lewis v. Cooper, 33 L. 0. 45. If a bill seeks relief as to more than one subject, the defendant may put in a plea as to each subject. If an averment in a plea is inconsistent with the matter pleaded, the plea is bad. A plea is bad, if it raises, by averment, an issue not raised by the bill. Emmott v. Mitchell, 14 Sim. 432. PRIVILEGED COMMUNICATION. Demurrer by witness. To support a demurrer to interrogatories asking a witness to produce certain letters and documents, it is not See Mortgage. REDEMPTION. RE-HEARING. The court will not, after the lapse of five or six years rehear an appeal upon the grounds of irregularity in the Master's proceedings in expunging scandal without reporting it. Oldfield v. Cobbett, 33 L. O. 281. REPLICATION. See Dismissal, 3. REVIVOR. Remainder-man.—An order to revive against the personal representatives of a defendant, in a suit whereby it is sought to affect a right which has descended to such representative in the character of remainder-man, will have no effect in respect to so much of the suit as seeks to affect such right. Hilton v. Lord Granville, 33 L. O. 500. SERVICE OF COPY BILL. 1. Where a suit relates to a wife's separate estate, she, as well as her husband, must be (24th Ord. of Aug. served with a copy bill. 1841.) Salmon v. Green, 8 Beav. 457. 2. Creditors under trust-deed. - Bill by a SPECIFIC PERFORMANCE. SUPPLEMENTAL BILL. 23rd Order of August, 1841.-Course of pro 152 Analytical Digest of Cases,-Superior Courts: Lord Chancellor. ceeding where a defendant, served with a copy of the bill under the 23rd Order of August, 1841, dies before appearance. Edington v. Banham, 2 Coll. 619. See Bankrupt; Creditor's suit. TRUSTEES. Separate answers.-Costs.-On the dismissal of a bill with costs, the court referred it to the Master to inquire whether it was necessary or proper that several defendants, consisting of trustees and their cestui que trusts, appearing by the same solicitor, and having no conflicting interests, should file two separate answers to the bill. Woods v. Woods, 5 Hare, 229. Cases cited in the judgment: Van Sandau v. contradicting any facts alleged in the plaintiff's state of facts, and that they might be at liberty to sue out a commission for that purpose. Mr. Cooper, on behalf of the plaintiff, moved, that this order might be discharged, and that defendants might be ordered to pay the costs of the motion before his Honour; and he submitted that it was not usual to allow parties to go into evidence after publication had passed, except upon the grounds of surprise or special circumstances, neither of which occurred in the present instance to authorize the above order. The evidence now sought to be obtained might be destructive of the plaintiff's case. The Lord Chancellor. That might be, and yet the plaintiff's witnesses might not be contradicted for instance, the plaintiff might prove that a debt had been contracted with him by the defendant, but it would be very hard not to allow the latter to prove a release from RECENT DECISIONS IN THE SUPE- it. REPORTED BY BARRISTERS OF THE SEVERAL Lord Chancellor. Parker v. Peet. April 30, 1847. ADMISSION OF DEFENDANT'S STATE OF FACTS AFTER PUBLICATION OF DEPO- Mr. Cooper referred to Lord Talbot's order, in Smith v. Turner, 3 P. Wms. p. 413, and cited Willan v. Willan, 19 Ves. 589; Greenwood v. Parsons, 2 Sim. 229; Winpenny v. Courtney, 5 Sim. 554. Mr. Daniel followed on the same side, and quoted the case of Lord Nelson v. Lord Bridport, 6 Beav. 295, as strongly illustrative of the principle upon which the court acts, in respect of such admissions as that now sought. Mr. Lowndes and Mr. Wright, contrà, argued A defendant who, under special circumstances, that there was no unbending rule which prehas not been required by the Master to put vented the making of the order now appealed in a counter-statement to the plaintiff's against. Willian v. Willan, suprà, showed that state of facts, may be allowed after publi- it is a matter for the discretion of the judge. cation of the depositions on the latter, to [Lord Chancellor. But it is a discretion rebring in such counter-statement and ex-gulated by the practice of the court.] Under amine witnesses for the purpose of support- the circumstances the Master had acted judiing it, but not for the purpose of disproving ciously in not allowing the defendants to put or contradicting the facts in the plaintiff's in a counter-statement until it was ascertained statement. that the plaintiff could prove his state of facts, and the order expressly provided that they should not attempt to disprove or contradict the facts which he had alleged. AFTER publication had passed in a suit instituted against the representatives of certain executors for the recovery of the testator's unadministered assets, amounting to a small sum, a decree had been made directing a special inquiry. Mr. Cooper replied. The Lord Chancellor. If it were not for the special circumstances of the case, I should not The Master ordered the plaintiff to bring in have had the slightest hesitation in deciding a state of facts, the depositions on which were that this order was contrary to the practice, and subsequently published by order. The plain- what ought to be the practice, of this court; tiff had previously called upon the defendants and although this order is very carefully to carry in a counter-statement, which they de- guarded to prevent any advantage being taken clined to do, and the Master under the circum- of the published evidence, yet this would not stances of the case, and because such counter-induce me to sanction an order which is constatement would occasion unnecessary expense trary to the practice, and which I consider the if the plaintiff should fail in his evidence, refused to make any order in respect thereof. The plaintiff's state of facts having been established by witnesses contrary to the expectation of the defendants, the latter, under the impression that they had a good defence, afterwards carried in a state of facts, and obtained from Vice-Chancellor Knight Bruce, on the 27th of March last, an order that they might be at liberty to examine witnesses, for the purpose of proving the facts alleged in their state of facts, but not for the purpose of disproving or wholesome practice, of the court. Under the circumstances, I think it would be extremely hard not to allow the defendants to go into evidence in support of their state of facts under the restrictions mentioned. I think that the order of the Vice-Chancellor is right, and consequently this motion must be dismissed with costs. |