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The Courts of Chancery and King's Bench,

FROM MICHAELMAS TERM, 1823; TO TRINITY TERM, 1824,

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BOTH INCLUSIVE ;

AND IN

The Court of Common Pleas,

FROM MICHAELMAS TERM, 1823, TO EASTER TERM, 1824,

BOTH INCLUSIVE,

VOL. II.

LONDON:

PUBLISHED BY J. W. PAGET, 5, QUALITY COURT, CHANCERY LANE.

COOL

9 DEC 1959

B. Bensley, Bolt Court, Fleet Street.

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1. Reports of Cases in the Courts of Equity. 2. Reports of Cases in the Court of King's Bench. 3. Reports of Cases in the Court of Common Pleas. 4. Reports of Cases in the Ecclesiastical and Admiralty Courts. 5. A Digest of all the Reports in every Court of Justice in the Kingdom. 6. An Annual Supplement to Burn's Justice. 7. An Abridgment of every Act of Parliament immediately after it has passed. 's. Law Tracts.

DURING THE PERIOD OF THESE REPORTS.

IN THE COURTS OF EQUITY.
Earl Eldon, Lord High Chancellor.
Sir Thomas PLUMER, Knt.
succeeded by

Master of the Rolls.
The Right Hon. Lord GIFFORD, S
Sir John Leach, Knt. Vice Chancellor.

IN THE COURT OF KING'S BENCH.
The Right Hon. Sir CHARLES ABBOTT, Knt. Lord Chief Justice.
The Hon. Sir John BAYLEY, Knt.
The Hon. Sir George SOWLEY HOLROYD, Knt.
The Hon. Sir William DRAPER Best, Knt.

succeeded by
The Hon. Sir Joseph LITTLEDALE, Knt.

IN THE COURT OF COMMON PLEAS.
The Right Hon. Sir Robert Dallas, Knt.

succeeded by
The Right Hon. Lord GIFFORD,

Lord Chief Justice.
succeeded by
The Right Hon. Sir William DRAPER Best, Knt. )
The Hon. Sir James ALLAN PARK, Knt.
The Hon. Sir James BURROUGH, Knt.
The Hon. Sir James RICHARDSON, Knt.

succeeded by
The Hon. Sir STEPHEN GASELEE, Knt.

IN THE COURT OF EXCHEQUER.
The Right Hon. Sir RICHARD RICHARDS, Knt.)
succeeded by

Lord Chief Baron.
The Right Hon. Sir William ALEXANDER, Knt.)
The Hon. Sir Robert GRAHAM, Knt.
The Hon. Sir William GARROW, Knt.
The Hon. Sir John HULLOCK, Knt.

IN THE ECCLESIASTICAL COURTS. The Right Hon. Sir John NICHOLL, Knt. Official Principal of the Arches Court of Canter

bury, Judge of the Prerogative Court and the Court of Peculiars of Canterbury. The Right Hon. Lord Stowell, Judge of the High Court of Admiralty of England. The Right Hon. Sir CHRISTOPHER ROBINSON, Knt. Chancellor of the Diocese of London,

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CASES ARGUED AND DETERMINED

IN THE

COURT OF CHANCERY:

COMMENCING IN THE

SITTINGS

BEFORE

MICHAELMAS TERM, 1823.

1823. ? Nov. 3. So

GEDGE V. TRAILL. Demurrer to a bill filed by a creditor, against A. the exccutor, and his partners B., C., &c., alleging, that assets of the testator had conie into the hands of the partnership, and that all the partners claimed to retain these assets, in satisfaction of a dest duc from the testator to their firm, but not alleging in terms cole lusion between A. and the other defendants: the demurrer is overruled.

The bill was filed by the administratrix of a creditor of Napier, for payment of the debt out of Napier's assets. It stated, that Napier died in India, having appointed certain cxecutors there, and other executors here; that the executors in India had proved the will there, and had remitted considerable sums to the defendant Traill, who was the sole personal representative of the testator in England. Traill was originally the only defendant, but, by amendment, it was alleged, that the assets had been remitted either to Traill, or to the house of Paxton and Co., in which he was a partner, and that they (meaning all the defendants) pretended that the testator

was indebted to Paxton and Co., and that Paxton and Co. were entitled to retain the assets in their possession in satisfaction of their own claim. All the partners in the house of Paxton and Co. were made defendants to the amended bill. There was no express specific allegation of collusion between Traill and his co-partners, except the common charge of confederacy.

All the partners of the house of Paxton and Co., cxcept Traill, put in a general demurrer to the amended bill. The ground of demurrer was, thnt the creditor was entitled to proceed only against the executor, unless he made a special case, by charging collusion between the executor and the person having assets in his possession; and that the bill here contained no such charge.

Mr. Cockerell was for the demurrer:
Mr. Teed, contrà.

Vice Chancellor.--I am inclined to think, that this bill, though it does not charge collusion in terms, states on the face of it circumstances which amount to collusion. It charges, that the assets have been remitted either to Traill, or to the house of Paxton and Co., and that all the partners of that house claim to retain them in satis

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