18. Where a defendant is in the King's Bench on mesne process, a habeas corpus must issue with a view to his being turned over to the Fleet.-Neame v. Wagstaff, 1 Sim. 389. 19. The court will remove a next friend, connected with a person having an interest adverse to that of the infant.-Peyton v. Bond, 1 Sim. 390. 20. An order on two solicitors, as partners, is not duly served by serving it on one of them, and leaving a copy at the place where the partnership business is carried on.-Young v. Goodson, 2 Russ. 255. 21. Irregularity in a sequestration may be waived, by the party against whom it is issued, permitting the sequestrate to deal with the property.—Coust v. Barr, 2 Russ. 161. 22. A witness who has been examined at or before the hearing, only to prove exhibits, may be examined to prove other deeds, &c. before the master, without a special order.-Courtenay v. Hoskins, 2 Russ. 253. 23. The refusal of a witness to be cross examined is not ground for suppressing his depositions, after publication; the adverse party should have applied to the court at the time of refusal.—Ibid. PRINCIPAL AND AGENT. The mere relation of principal and agent will not entitle the former to relief in equity.-King v. Rossett and another, 2 Y. & J. 33. PROCESS. See PRACTICE, 18. PROCHEIN AMI. See PRACTICE, 19. One of two solicitors having become bankrupt, the court refused upon motion by the other, to order the assignees to deliver to him the papers belonging to the clients of the firm.-Davidson v. Napier, 1 Sim. 297. See PLEADING, 5. SPECIFIC PERFORMANCE. Agreement on sale of the lease of a public house by executors, that the furniture, stock, &c. should be taken at a valuation; and possession given on 29th Sept. 1821: the valuation was made, but the purchaser refused to perform his contract: executors file a bill, in the meantime keeping possession and carrying on the business: Held that the decree could only be for principal and interest of such parts of the stock valued as could be delivered to the defendant who was chargeable for rent, taxes, and necessary outgoings; and not entitled to occupation, rent, or allowance, for the use of the house and furniture.Dakin v. Cope, 2 Russ. 170. EE TERM. When a term which is prior to legal limitations, is satisfied, the termor is a trustee for him who is entitled under those limitations: and equity will prevent the term from being set up against that person.-Leigh v. Leigh, 1 Sim. 349. And see FINE. WILL. Testator bequeathed certain stock upon trust, for his wife for life; remainder to his brother for life; and after the decease of the survivor of wife and brother, he directed 18007. should be sold, and that the produce should be paid to, and equally divided between a nephew and four nieces, share and share alike. "And my mind and will further is, that in case of the death of my said nephew, or of any or either of my said nieces, without lawful issue, before their respective parts or shares of the said sum shall become due and payable to them under and by virtue of this my will, that the part or share of him, her, or them so dying without issue as aforesaid, shall go to and be equally divided between and amongst the survivor and survivors of them, share and share alike." The wife, nephew and nieces, survived testator. Mary Powell, one of the nieces, died in the lifetime of wife, leaving a son; but which son afterwards died before the wife. Then Jane Greenwood, another of the nieces, died s. p. in the lifetime of the wife. Held, that though Mrs. Powell died leaving issue, yet that issue having afterwards died before the share became payable, she took nothing under the will. That Jane Greenwood having survived Mrs. Powell and her son, beeame entitled to a distributive portion of Mrs. P.'s share; but as she herself afterwards died before the shares became payable, her own original share went to the surviving legatees, three in number (the nephew and two nieces). But on the authority of ex parte West, (1 Br. C. C. 575.) his lordship was of opinion, that her accrued share taken upon Mrs. P.'s death without issue, did not go over on her Ideath without issue. One of the nieces, who survived the wife, had with her husband mortgaged her share; the husband died before the wife of testator: Held, that such mortgage was invalid.—Crowder v. Stone. Linc. Inn, Aug. 19, 1828. Lyndhurst, C.-Honnor v. Norton. • His Lordship referred to Wilmot v. Wilmot, as governing the construction of these words. 8 Ves. 10. 411 RULES OF COURT. IN THE KING'S BENCH. Hilary Term, 8 & 9 Geo. 4. WHEREAS great expence is often unnecessarily incurred in making up demurrer books, from setting forth those parts of the pleadings to which the demurrers do not apply. IT IS THEREFORE ORDERED, that from and after the end of this term, when there shall be a demurrer to part only of the declaration or other subsequent pleadings, those parts only of the declaration and pleadings to which such demurrer relates shall be copied into the demurrer books; and if any other parts shall be copied, the master shall not allow the costs thereof on taxation either as between party and party, or as between attorney and client. (7 B. & C. 642.) BY THE COURT. IN THE COMMON PLEAS Hilary Term, 8 & 9 Geo. 4. THE above rule was adopted verbatim by this court. 1 M. & P. 401. Easter Term, 9 Geo. 4. REGULA GENERALIS. 4 Bing. 549. WHEREAS it has been suggested to us, that inconvenience may in some cases arise, if the rule of this court, made in Hilary term last, respecting the taking the acknowledgments of persons levying fines or suffering recoveries before commissioners, be continued in its present extent. And whereas it appears to us upon consideration of the matters so sug gested, that it will be more convenient to revoke the said rule, and make another in lieu thereof; it is therefore ordered by the court, that from and after the first day of the next term, the said rule shall be and the same is hereby revoked. And it is hereby further ordered, that from and after the said first day of the next term, when the acknowledgments of any person or persons levying fines or suffering recoveries shall be taken before commissioners, one at least of the commissioners for the taking the acknowledgment of any party to such fine or recovery, shall be a person who is not concerned as the attorney, solicitor, or agent or clerk to the attorney, solicitor, or agent of any party thereto, and that in the affidavit to be made of the due taking of such acknowledgment, it shall be deposed, in addition to the facts now required by the rules of the court to be included in such affidavit, that one (at least) of the commissioners taking such acknowledgment is not the attorney, solicitor, or agent, or clerk to the attorney, solicitor, or agent of any of the parties to the fine or recovery for the taking the acknowledgment to which the commission, under which he has acted, has been issued, and the name and residence of such commissioner shall be stated in such affidavit. It is further ordered, that from and after the first day of next term, the commissioners do enquire of married women whether they intend to give up their interests in the estates to be passed by any fine or recovery, without having any provision made for them in return for or in consequence of their so giving up such interests; and if it appears to such commissioners that any provision is to be made on any such married woman, they shall not take her acknowledgment until they are satisfied that such provision has been made; and one of the commissioners taking the acknowledgment of such married woman, shall state in the affidavit to be made of the due taking such acknowledgment, that such enquiry was made, and also the answer given thereto, and where any such provision has been agreed to be made, that he the said commissioner is satisfied that the same has been made; and where such married woman, in answer to such enquiry, shall declare that she intends to give up her interest, without any provision, that he the said commissioner has no reason to doubt the truth of such declaration, and verily believes the same to be true. And it is hereby further ordered, that from and after the first day of the next term, the affidavit of the due taking of any acknowledgment to any fine or recovery shall be in the form hereunto annexed, with such variations only as the circumstances of the case shall render necessary, and that the party or parties making the same do pursue the exact words of such form, and do not, unless absolutely necessary, substitute others which he or they may think synonimous thereto. And, lastly, to avoid the delay and expence occasioned by any variance in the names of any of the parties making such acknowledgments between their signature thereto and the precipe prefixed to such acknowledgment, or the dedimus potestatem, under which the same is taken, it is ordered that the commissioners, before they sign their names to the caption of such acknowledgment, do take care that the signatures of the parties correspond with the precipe and dedimus, and that if any of the names are not correctly stated in the dedimus, they forbear to take the acknowledgment until the writ shall have been amended by the proper officer. W. D. BEST, J. Burrough, S. GASELEE. Form of Affidavit to be made by one of the Commissioners taking the Acknowledgment of a Fine or Recovery. gentleman, one of the at Westminster, and one attornies of his Majesty's court of of the commissioners named in the writ of dedimus potestatem for taking the acknowledgment of the fine hereunto annexed [or, receiving the attorney or attornies of C. D. and E. his wife], maketh oath and saith, that he knows C. D. and E. his wife [if part only of the conuzors, "two of"] the conuzors named in the said fine [or, if a recovery, the said C. D. and E. his wife], and that the same [or, if a recovery, the warrant of attorney, a copy whereof is hereunto annexed] was duly signed and acknowledged by them the said C. D. and E. his wife, before this deponent and J. K. gentleman, one other of the attornies of his Majesty's court of at Westminster, and another of the commissioners named in the said writ, on the day and year [or, days and year] mentioned in the caption [or, in the first (second or third) caption] thereof. And that the said C. D. and E. his wife, and also this deponent and the said J. K. were and each of them was at the time of the taking and acknowledging of the said fine [or, warrant of attorney] of full age and competent understanding, and that the said E. was for, were] solely and separately examined apart from her said [or, their respective] husband [or, husbands] and freely and voluntarily consented to and acknowledged the said fine [or, warrant of attorney]. And that the said C. D. and E. his wife severally and respectively knew the same to be a fine [or, that the said warrant of attorney was intended for the suffering a common recovery] to pass his, her, and their estate and estates. And this deponent further saith, that he this deponent [or, the said J. K., as the case may be, adding if not the commissioner making the affidavit, "whose place of residence is at"] is not concerned as the at torney, solicitor, or agent, or clerk to the attorney, solicitor, or agent of any or either of the parties to the said fine [or, recovery]. And this deponent further saith, that in pursuance of the order made by this honourable court in Easter term in the eighth year of the reign of His Majesty King George the Fourth, respecting the acknowledgment of fines and recoveries, the said commissioners did enquire of the said E. |
