an order that the wife shall answer separately. 5. Qu. Whether either the plaintiff or the hus. 3. Injunction to stay proceedings on an award, made? 8. See BARON AND FEME, 1, 2, 3.--Impertinence, ASSETS. 1. Qu. Whether there can be a decree to mar- 1. Where it is one of the terms of an agreement time limited by the statute. Davis v. Getty Thomas v. BANKRUPT. 1. A general demurrer allowed to a bill by the BARON AND FEME. · 408 1. Husband and wife being defendants, the latter, 2. Husband and wife being defendants, the hus- 3. 163 Where a married woman having a separate in- 185 6. A divorce obtained by a wife after her hus 7. into her own proper hands, should be good dis- 429 477 4. See TRUST, 2. CLERK IN COURT. COMMISSION TO EXAMINE WIT- 394 1. A bill for a commission to examine witnesses 2. See COSTS, 3.-PRACTICE, 7. COMPENSATION. See VENDOR AND PURCHASER, 2. 2. Settlement of a sum of money upon trust to 3. 4. P. B. on his daughter's marriage, settled a See DEED, 2, 3.-LEGACY, 2, 3.-WILL, 1, 7, CONTEMPT. 1. A defendant, in order to clear his contempt, 83 3. See PRACTICE, 8, 9. COPY HOLDS. The ultimate limitation on a surrender of copy- 11. In a suit between the heir and the residuary legatee of the produce of real estate respecting a sum part of such produce the costs were ordered to be borne proportionably by that sum 290 and the residue. Jones v. Mitchell, 12. The plaintiff in an interpleading suit is entitled to be paid his costs out of the fund. Campbell v. Solomans, 462 13. The court has no jurisdiction to order a solicitor's bill to be taxed on the application of the solicitor himself. Sayers v. Walond, 97 14. See CONTEMPT, 1. PROCHEIN AMY, 1. SoLICITOR AND CLIENT, 1. If a regular corporate resolution has been passed COSTS. 1. Where the subject of a suit has been disposed of out of court, the court will not hear the cause, merely for the purpose of disposing of the costs. Roberts v. Roberts, 39 2. The separate property of a married woman in the hands of the court is liable to the costs of a suit instituted by her touching that property. Barlee v. Barlee, 100 3. On demurrer allowed to a bill for a commission to examine witnesses de bene esse, the plaintiff having, on an ex parte application, obtained an order to examine the witnesses, was ordered to pay to the defendant, besides the usual costs of the demurrer, the costs of the depositions, but not of those taken on cross examination. Dew v. Clarke, 108 4. A legatee who filed a bill for his legacy with notice of a prior suit for administering the assets, and the executors who answered the bill instead of moving to stay proceeding in the suit, were refused their costs. Packwood v. Maddison, 232 5. The court will not direct the costs of a suit and of an action between the same parties to be set off against each other. Wright v. Mu. die, 266 6. The party making a successful motion is entitled to his costs as costs in the cause; but the party opposing it is not entitled to his costs as costs in the cause. Memorandum, 357 7. The party making a motion, which fails, is not entitled to his costs as costs in the cause; but the party opposing it is entitled to his costs as costs in the cause. 357 8. Where a motion is made by one party and not opposed by the other, the costs of both parties are costs in the cause. 357 9. Where a charity information is filed under 59 Geo. III. c. 91, without a relator, the court has jurisdiction to order the defendant to pay the attorney general his costs. Attorney General v. Earl of Ashburnham, 394 2. A covenant to produce title deeds runs with the land for the benefit of purchasers. 449 DEBTOR AND CREDITOR. 1. A devisee has a right to retain a debt due to himself or to his trustee out of the produce of the estate devised to him. Loomes v. Stot. herd, 458 2. Where one of the plaintiffs in a creditors' suit dies after a decree, his personal representative has a right to revive. Qu. If before decree. Burney v. Morgan, 3. 358 A creditor cannot sue on behalf of himself and others, who have no common interest with him. 358 4. The personal representative may retain for his own debt, notwithstanding a decree has been made in a suit by the other creditors for the administration of the assets, and notwithstanding the assets out of which he seeks to retain his debt came to his hands after the decrec. Nunn v. Barlow, 588 Where a creditor takes from his debtor an assignment of a debt due from a third person as a security for his demand, and, by his wilful default, the debt becomes irrecoverable, he must bear the loss. Williams v. Price, 581 5. DEED. 331 10, Where a bill had been amended three times, and the two last amendments were made ne. cessary by the negligence or error of the plain. tiffs, the defendant was allowed extra costs 1. A married man having lived in adultery with a woman, and had children by her, executes for those amendments. Waits v. Manning, 421 a deed providing for her and the children in case of his death, and deposits it in the hands of his attorney, but afterwards procures pos. session of it himself: Held that the woman and her children can maintain a bill to compel him to deliver up this deed. Knye v. Moore, 61 2. The construction of a written instrument is the same in equity as at law. Ball v. Storie, 210 3. A court of equity will reform an instrument, which, by the mistake of the drawer, admits of a construction inconsistent with the true agree. ment of the parties, although the party seeking to reform it himself drew the instrument. Ball v. Storie, 210 4. See CONSTRUCTION, 2, 3. COVENANT. PETITION. PRACTICE, 25. SETTLEMENT, 2. SOLICI TOR AND CLIEnt, 3. DEPOSITIONS. See COSTS, 3. TESTIMONY, (Bill to perpetu- 1. Where an infant died seised of an equitable estate descended ex parte materna, his incapacity to call for a conveyance of the legal estate, (by which the course of the descent might have been broken,) is not a sufficient reason to induce the court to consider the case as if such a conveyance had actually been made; it not being according to the terms of the trust any part of the express duty of the trus tecs to execute such a conveyance. Langley v. Sneyd, 45 2. Where a person seised of an estate by descent ex parte materna dies without issue, the descendants of his maternal grandfather must all be extinct before any descendant of a remoter maternal ancestor can inherit, however nearly related to the propositus, ex parte materna. Hawkins v. Shewen, DISCOVERY. Prima facie discovery is incidental to relief. Angell v. Angell, 83 DONATIO MORTIS CAUSA. A mortgage or a bond given as a collateral sccurity for money due on mortgage, cannot be made the subject of a donatio mortis causa. Duffield v. Elwes, 239 DOWER. 1. Testator devised gavelkind lands to his wife and two other persons in trust, as to one moiety for his wife during her widowhood, and as to the other moiety, for his children. Held, that the wife must elect between her dower and the provision under the will. Roberts v. Smith, 513 2. Widow held to be barred of her dower in equity by a rent charge granted in trust for her by way of jointure by the marriage settlement, to which her father was a party, although she was an infant at the time of the marriage, and the rent charge failed by defect of title in the husband, and was afterwards confirmed by deed and recovery during the coverture; which, though they proved a valid confirmation, might have been defeated if there had been a son of the marriage. Corbet v. Corbet, 612 3. Wife evicted of jointure is by stat. 27 Hen. VIII, c. 10, s. 7, entitled to dower only pro tanto. Corbet v. Corbet, 620 4. Grant of a rent-charge out of particular lands to an infant, in consideration of marriage, for her jointure, though the grantor be afterwards evicted, being in equity a general agreement to grant a rent-charge of that amount out of some lands, will bind the infant if her parent or guardian assented to it, 620 ELECTION. See DOWER, 1. EQUITY OF REDEMPTION. 1. Husband and wife being jointly entitled to an equity of redemption in fee, convey it by deed. without a fine, to the mortgagee The wife survives, she or her heir may redeem at any time within twenty years from the husband's death. Price v. Čopner, 2. 3. 347 Where the purchaser of an equity of redemption had the legal estate conveyed to him by a deed dated the 24th of August, 1796, in which it was recited, that the purchaser had sometime since paid to the mortgagee the money due on his mortgage, and a bill to redeem was filed on the 29th of January, 1816; Held, that the recital was an acknowledgment of the mortgage till within twenty years from If a mortgagee enters in the life-time of the the filing of the bill. Price v. Copner, tenant for life of the mortgaged estate, the remainder-man will be barred of his right to redeem after twenty years from such entry. Harrison v. Hollins, EXAMINATION. 347 471 257 1. The examination of a sequestrator in the mas. were transactions during the minority. Under these circumstances an injunction was grant. ed, on terms to restrain the guardian from proceeding in an action to recover the balance claimed by him on account of the transactions after his ward came of age. Mellish v. Mellish, 138 ter's office does not require the signature of counsel. Keene v. Price, 98 2. If after a defendant has put in his examination to the usual interrogatories before the master, the plaintiff discovers that the defendant has received sums not mentioned in his examination, the master is at liberty to receive a new state of facts and further interrogato. 2. A solicitor, who advanced money to an infant ries founded upon them, without the order of the court. Sidden v. Foster, 3. See WITNESS, 2. EXCEPTIONS. 335 1. Exceptions having been allowed to the an. swer, and the bill having been amended, and the usual order obtained that defendant should answer the amendments and exceptions at the same time, defendant put in a second answer. The plaintiff then took exceptions to the second answer, and intitled them, "Exceptions to the further answer to the original bill, and to the answer to the amended bill." The exceptions were held to be irregularly in. titled, and were ordered to be taken off the file, because new exceptions cannot be taken to the further answer to the original bill, but, if that answer be considered insufficient, it must be referred back to the master upon the old excep. Williams v. Davies, 426 tions. EXECUTOR. 1. Testator named two persons to be his executors, and bequeathed to them 501. each, upon condition of their taking upon themselves a certain trust, and afterwards used these words: "I give to my cousin T. K. 50l. who I ap. point joint executor; and the testator also gave to T. K.'s sisters legacies of 501. each: Held, that the legacy to T. K. was not annexed to the office of executor, and that he was entitled to it although he had declined to act in the trusts of the will. Dix v. Reed, 237 2. After a decree for the administration of assets, the executor pleaded a false plea to an action by a creditor of the testator, in order to apply for an injunction to restrain the action; the court granted the injunction, and held that the creditor was not entitled to judgment against the executor de bonis propriis. Fiel. den v. Fielden. EXHIBITS. FOREIGN COURT. FRIENDLY SOCIETY. GUARDIAN AND WARD 255 1. Where a guardian, after his ward attains full age, continues to manage the property at the request of the ward, and before the accounts of his receipts and payments during the minority are settled, it is in effect a continuance of the guardianship as to the property; and he must account on the same principle as if they 1. for the subsistence of himself and his family, and acted as his confidential adviser, is in the nature of a guardian to him; and an account settled between them within a month after the infant came of age, and without the latter having any assistance, was opened, notwith. standing the vouchers had been delivered up. Revett v. Harvey, 502 HEIR. Qu. Whether there can be a decree to marshall the assets where the heir at law is an infant. Pott v. Gallini, 209 2. See TRUST, 1. WILL, 3. |