Ordered, upon motion, that the new commit., 41. tee should be named as such in all future proceedings in the cause. Lyon v. Mercer, 356 29. If after a defendant has put in his examination to the usual interrogatories before the master, the plantiff discovers that the defendant has received sums not mentioned in his exami. nation, the master is at liberty to receive a new state of facts, and further interrogatories founded upon them, without the order of the court. Sidden v. Forster, 335 30. Where in a foreclosure suit exceptions are taken to the masters's report, and the time appointed for payinent of the mortgage money is likely to elapse before the exceptions are heard, the defendant should apply to the court, upon the exceptions being filed, to have the time en. larged, until the exceptions are disposed of. Renvoize v. Cooper, 364 31. Where a decree directs issues to try the validity of moduses, and the plaintiff wishes to have the issues tried in a different county from that in which the lands lie, an order for that purpose cannot be inserted in the decree, bat must be obtained by petition. Sparke v. Ivatt, 366 32. The court will not order copies of depositions 433 37. A party who examines a witness is bound to keep him in town for forty-eight hours after his production at the seat of the adverse clerk in court, and, if cross interrogatories are left with the examiner within the forty-eight hours, the party must keep the witness in town till the cross examination is finished. Whittuck v. Lysaght, 446 38. A cause may be regularly set down without consent in the vacation after the term in which publication passes. Partridge v. Cann, 466 39. There is no precise time beyond which wit. nesses cannot be discredited. Interrogatories in support of articles for that purpose may re. late to particular facts not in issue in the cause, as well as to the credit of the witnesses gene. rally. Piggott v. Crorhall, 467 40. After a demurrer overruled, an order for time to answer merely can be obtained by a special application only. Trim v. Baker, 469 An order to dissolve the common injunction nisi may be obtained, notwithstanding the defendant has excepted to the master's report as to the 'sufficiency of the answer. Merest v. Coster, 486 42. Where, under an order made in a creditor's suit, a supplemental bill is filed by a creditor, not a party to the original suit, on behalf of himself and all other creditors, to have the benefit of the decree in that suit, the propriety of the order which authorized the creditor to file the supplemental bill cannot be questioned at the hearing of the supplemental cause. When leave is given to file such a bill, the plaintiff in it is entitled to the same decrce to have the benefit of former proceedings, as the representatives of the original plaintiffs would have been entitled to on a bill of revivor. Houlditch v. Marquis of Donegall, 491 43. After a demurrer overruled, the defendant cannot plead to the bill without the leave of the court. Rowley v. Eccles, 511 44. See AccoUNT, 1. ANSWER 3, 4, 5. ASSETS, 1, 2. BIDDINGS, 1, 2. COSTS, 2, 3. EXAMINATION, 1. MONEY, PAYMENT OF, INTO COURT, 1, 2. PLEA, 1, 2. VENDOR AND PURCHASER, 4. RESIDUE. 1. 2. PROCHEIN AMY. A married woman being the plaintiff, and her prochein amy having died, it was ordered that she should name a new prochein amy within two months, or that the bill should be dismissed, and the costs paid out of the fund in court. Barlee v. Barlee, 100 Where a new next friend is to be substituted, the court refused to inquire into the circumstances of the proposed next friend, though it was suggested that he was in indigent circumstances. Davenport v. Davenport, 101 3. Where the next friend of a feme covert had taken the benefit of the Insolvent Debtor's Act, but was detained in prison, and had obtained an order upon the husband for payment of his groats after the answer was filed, and before any other proceeding was taken in the cause, a motion by one of the defendants that the next friend might be removed and another appointed was refused, as being improper in form; but leave was given to apply to stay proceedings until the next friend should be changed, or security given for costs. Pennington v. Alvin, 264 RECEIVER. This court will appoint a receiver pending a suit in the ecclesiastical court to recall probate, on a case of strong presumption of fraud. Ruther. ford v. Douglas, 111 RESIDUE. 1. Where a legacy is given upon a contingency, and a suit is instituted for the administration of the testator's estate, the court does not direct a sum of stock belonging to the estate to be appropriated to pay the legacy when the con. tingency happens; but directs the whole residue to be paid over to the residuary legatec on 1. Upon a reference to the master to approve of a proper settlement upon the wife, out of a fund accruing in her right, which was claimed by the assignecs of her husband, the court directed the master to have regard to the extent of the fortune received by her husband in her right, as well as to any other settlement which he might have made on her. Green v. Otte, 250 2. Settlement of a sum of money upon trust to be transferred to the surviving parent for the benefit of him or her and any child or chil. dren of the marriage; held, upon construction of the whole instrument, that the surviving parent took for life, with remainder to the children. Chambers v. Atkins,382 3. Voluntary settlements of personal property made by persons who are not indebted at the time, are good against a subsequent purchaser for valuable consideration. Jones v. Croucher, 4. See TRUST, 3, 5. SEQUESTRATION. See PRACTICE, 24. SOLICITOR AND CLIENT. 315 1. The court has no jurisdiction to order a solici 3. Where damages in an action at law for breach of a contract to sell a chattel would be an insufficient remedy for the purchaser, although a sufficient remedy for the vendor, a demurrer to a bill by the vendor for a specific performance will be overruled, because the remedy in this court must be mutual for purchaser and vendor. Withy v. Cottle, 174 Where the answer to a bill for a specific performance raises any other objection to the performance of the contract besides defects in the title, on a motion for a reference of the title to the master, after the answer has come in; semble, that the court will not examine whether the other objection be frivolous or not, because that is matter to be decided at the hearing of the cause. 174 4. 5. 6. The court refused to decree the specific performance of an agreement to purchase the fee simple of certain lands, and also the right to impound the water of a river, and to divert from it a stream of water, because the vendor, though seised in fee of the lands, had only a lease for 99 years of the other subjects of the contract, and had not, as against some of the proprietors of land on the banks of a river, a right to divert the water, the purchaser having entered into the contract for the purpose of erecting a manufactory to be wrought by the water, and twelve years having elapsed between the time of the agreement and the hearing of the cause. Wright v. Howard, 190 7. Bill for specific performance of an agreement to take a lease for 42 years of iron and coal mines and machinery for the purpose of trade, dismissed, on account of delay on the part Tenant for life of real estates under a will having expended money in finishing a mansion-house which the testator had begun but left unfinished, and in repairing the mansion-house, which had been damaged by dry-rot, the court, in a suit for administering the trusts of the will, referred it to the master to inquire whether it was for the benefit of all parties interested that the mansion-house should be finished, but refused an inqury as to the repairs; and said that if it was found for the benefit of all parties in. terested that the mansion-house should have been finished, the court would if, there were no personal estate applicable, direct the expense to be a charge on the real estates. Hih. bert v. Cooke, 552 certain lands it was proved that a payment described as a tithe or rate-tithe issuing out of the lands in question, had been conveyed by the defendant's title-deeds for the last 150 years, and that this payment had been received by him and his ancestors, and that no tithe had been paid to the plaintiff, the rector, within living memory; and a verdict was found for the defendant. A motion by the rector for a new trial was refused. Williams v. Bacon and others, 415 2. 3. TESTIMONY, (BILL TO PERPETUATE.) 1. A demurrer will hold to a bill to perpetuate testimony if it do not state that no action can 4. be immediately brought. Angell v. Angell, TRUST. Where an infant died seised of an equitable estate descended ex parte materna, his incapacity to call for a conveyance of a legal estate, by which the course of descent would 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 trustee to execute such a conveyance. Langley v. Sneyd, 45 Testator gives the residue of his estate to his executors on trust, in default of appointment, to dispose of it at their pleasure, either for charitable or public purposes, or to any person or persons, in such shares, &c. as they, in their discretion should think fit: held that the trust is too general and undefined to be executed by the court; that the executors cannot take, because it is given expressly on trust; and that the next of kin are entitled. Vezey v. Jamson, 69 G. E. conveyed real estates upon trust for the benefit of his daughter; but he declared that if she married under age, and without his consent, the trustees should hold the estates in trust for him and his heirs. The daughter married under twenty-one and without consent; but G. E. was afterwards reconciled to her, and treated both her and her husband with great kindness: held that this conduct of the father did not divest the equitable fee which had vested in him on the marriage. Duffield v. Elwes, 239 Testator gave to his wife all his personal es. tate, relying that if she should marry again she would secure whatever she should possess under his will, for her separate use; and he recommended her to give by her will, what she should die possessed of under his will, to certain persons whom he named: held that the wife's executor was a trustee of the whole of the property possessed by her under the will, for the persons named. Horwood v. West, husband for their lives, and directed that after their decease it should be sold for the benefit of their children. The mother destroyed the re. cipe and verbally communicated the contents to her eldest son for the benefit of his brothers and sisters. Upon à bill filed against him by some of the younger children he was declared to hold the secret upon the trusts of the settle. ments, and was decreed to account for the profits made by him by the sale of the medicine after his mother's death; and, as a sale was impracticable, an issue was directed to ascertain the value of the secret. Green v. Folgham, 398 6. Qu. Whether the rule, that a trustee cannot purchase from his cestui que trust, prevails where the relation of trustee gives no advan. tage? Naylor v. Winch, 7. See WILL, 8. VENDOR AND PURCHASER. 555 7. Where the purchase money for an estate was, in pursuance of an agreement for the purchase, secured by the bond of the purchaser, payable at the death of the vendor, with interest; but the conveyance expressed that it had been paid, and had the vendor's receipt indorsed up. on it: held, that the vendor had no lien on the estate for the amount of the bond. Winter v. Lord Anson, 434 8. 9. Where a conveyance is executed to a purcha. ser, which expresses that the purchase money is paid, the estate does not, in equity, pass by the conveyance till the purchase money is ac. tually paid, although a receipt for the purchase money is endorsed on the conveyance. 434 Where a vendor agrees to sell a real estate in consideration of a bond for the purchase money payable at a future period, with interest in the mean time, the estate passes to the purchaser on the execution of the bond and of the conveyance, and the vendor has no lien for the amount of the bond. Winter v. Lord Anson, 434 10. A purchaser is not bound to complete his purchase, without the title deeds, unless he has a legal covenant to produce them. Barclay v. Raine, 449 11. See MONEY, PAYMENT OF, INTO COURT, 2. SPECIFIC PERFORMANCE. 1. Where the conditions of sale provide that interest shall be paid from a certain day, if the purchase be not then completed, the purchaser cannot relieve himself from the payment of interest by alleging that the delay in complet. ing the contract was caused by the vendor; but it is otherwise where there is no express stipulation. Esdaile v. Stephenson, 2. Quit rents being incidents of tenure, are proper subjects of compensation. Qu. as to rent. See SETTLEMENT, 3. charges, which are not incidents of tenure, though the court has allowed them when small to be subjects of compensation. 122 122 3. Qu. To what extent time is of the essence of the contract, where the purchase is intended with a view to commercial purposes as to the erection of a manufactory. Wright v. Howard, 190 4. Where payments have been made by a vendee at different times on account of his purchase, all exceeding the interest due at the times of such payments, and the decree in a suit by the vendor for a specific performance, directs an account to be taken of what is due to the plaintiff for the principal and interest in respect of the purchase, rests are always made in taking the account. Griffith v. Heaton, 271 5. Where a devisee of real estate subject to debts and legacies, had contracted to sell the estate in order to raise money to pay the debts, and afterwards a bill was filed against her by the legatees for the administration of the testator's estates, and the purchaser consented to go be. fore the master upon a reference as to the title in that suit: held, that he was not thereby bound to take an equitable title, but might in. sist on having the same title as he might have required if a suit had been instituted against him for a specific performance of his contract; and that as two commissions of bankrupt had issued against the devisee before the contract was entered into though neither of them was proceeded in, he was not bound to accept the title. Cann v. Cann, 284 6. An injunction may be obtained, upon motion to restrain a purchaser under a decree, not a party to the cause, who has not paid his pur. chase money, from committing waste on the property purchased. Casamajor v. Strode, VOL. I. 381 48 VOLUNTARY SETTLEMENT. WASTE. If a tenant for life has rendered accounts to the remainder-man of timber cut by him during a period of more than six years before a bill is filed against him for an account of such timber and of the value of it, the statute of limitations cannot be pleaded to the bill; for though, if the remainder-man had brought an action of trover, the tenant for life might, notwith. standing the rendering of the accounts, have pleaded the statute, he could not have done so if the remainder-man had brought an action of assumpsit. Honey v. Honey, 568 WILL. 1. Testatrix gave all her personal property to E. R.; and in case E. R. married and had a child or children, then to go to the heirs of E. R.; but in case E. R. should die without a child or children and leave a husband, then the interest to him for life, and four legacies of stock to certain other persons; and if E. R. should die unmarried, then she gave several small lega. cies to other persons. E R. died without ev. er being married. Held, that the gift to E R. was subject in one event, to the legacies of stock, and in another event, to the small lega. cies; and that, in the event which happened, the legacies of stock failed, but the small lega. cies took effect. Swayne v. Smith, Where real estates were devised in strict settlement, subject to a trust for raising portions for younger children during the minority of the tenant for life, out of the rents and profits, or by sale or mortgage: held that certain funds which had arisen from the rents during the minority of the tenant for life, were applicable 2. 56 276 10. rection that it shall be paid monthly, the first Testator devised a freehold estate to trustees, 11. Bequest in trust for all the children of A. to the payment of the portions, and that the. 9. Where an annuity is given by will, with a di- 304 6. Testator beqeathed to his wife the use of his 337 181 12. Bequest of household furniture and other 189 301 487 14. A bequest of stock to trustees, upon trust to 496 500 517 18. Testator, after giving some legacies, directs 534 19. Devise of lands to trustees, upon trust to pay |