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ceed, as in the case of attachments in the Lord Mayor's Court; and where the continuance of the injunction would have given an advantage to a third paramount claimant, a special order was made allowing the suits to proceed to judgment, reserving the equities for future consideration.-S. C.

3. (Delay in bringing.) A party who delays filing a bill in an interpleading suit, till the last moment which his own safety admits of, is viewed with favour by the Court. S. C.

IRISH PEERAGE.

1. (Effect of summons to Irish House of Lords-Prescriptive peerage in tail male.) An Irish peerage, of which the title was as old as the reign of Henry II., was claimed as a peerage in fee tail, descendible to females, created by writ of summons in the reign of Queen Elizabeth. It appeared that upon several occasions previous to that time the male heir had succeeded to the title when there were females living nearer in descent, but it was contended that in such cases the title was in abeyance between coheiresses, and that the more remote male heir had in each case been ennobled by writ of summons. It was shown, however, that during the time that the owners of the title, who were Catholics, were excluded from parliament, the title had gone, as if descendible in tail male, and the person from whom the claimant made title as having been ennobled by summons would himself also have been entitled to the peerage as heir male.-The claim was held not to have been made out, on the ground that the conclusion suggested by the facts was, that the peerage in question, however created, was descendible in tail male.

It was strongly argued that the summons to sit in the Irish parliament did not, as it does in England, create a peerage in fee tail descendible to females. Quære? -Slane Peerage, 10 Bligh, N. S. part 1.

2. (Presumption arising from precedency.) How far is the fact of the precedency of an old peerage being given to a person called by summons by the same title, evidence that he sat by virtue of his right by descent to the old peerage. Quære? -S. C.

ISSUE.

(Motion for new trial of evidence.) On a motion for new trial of an issue, either party may refer to evidence given in the cause, though not used at the trial of the issue. Slaney v. Wade, 7 Sim. 618.

JURISDICTION.

(Officers of Court.) Where an irregularity has been committed by an officer of the Court in executing its proceedings, the Court will not permit a party to proceed in an action at law against its officer, but will refer it to the Master, in a proper case, to settle a compensation.-Chalie v. Pickering, 1 Keen, 149. See SHORT CAUSE.

LEGACY DUTY.

A sum of money described as sufficient to produce in the funds the clear yearly sum of 500l. was given in succession, and as to some of the legatees upon contingency, to persons liable to different rates of legacy duty, upon which therefore the whole amount of duty could not at once be calculated: Held, not exempt from the duty.-Sanders v. Kiddell, 7 Sim. 536.

LEGATEE.

(Misdescription of.) The description of a legatee by a wrong character, where there is no question as to his identity, will not affect his right to the legacy,

unless the character attributed to him was assumed for the purpose of deceiving the testator.

Where a testator gave a legacy to a person whom he described as his widow, but who, it afterwards appeared, was previously married to a person still living at the time of the suit, the testator having had, at the time of his supposed marriage, the same reason as the legatee for supposing that her real husband was alive, the legacy was held good.-Giles v. Giles, 1 Keen, 685.

LUNATIC TRUSTEE.

Upon an application under the 1 W. 4, c. 60, for a transfer of stock, the Lord Chancellor will not adopt the facts as found in the proceedings in a suit in the Court of Exchequer, but will require them to be ascertained by the usual reference. In the matter of Prideaux, a lunatic, 2 M. & C. 640.

MAINTENANCE.

(Contingent legacy.) Maintenance will not be given in respect of a contingent legacy, although there be no gift over, without the consent of the next of kin. (Turner v. Turner, 4 Sim. 430.)-Cannings v. Flower, 7 Sim. 523.

MARRIED WOMAN.-As to admission by answer of, see PORTION.

MARRIAGE AGREEMENT.

How far discharged by death of intended wife's father before marriage as to his estate, quære?-Earl of Glengall v. Bernard, 1 Keen, 769.

MARSHALLING.

(Pecuniary legatee.) Assets will not be marshalled in favour of a pecuniary legatee, against a devisee of all the rest and residue of the real and personal

estale.

Semble, it would be otherwise if the legacy were specific. Hanby v. Roberts, Amb. 127; Keeling v. Brown, 2 M. & K. 635.)—Mirehouse v. Scaife, 2 M. & C. 695.

MORTGAGE. See EQUITABLE MORTGAGE; EQUITY OF REDEMPTION; INFANT HEIR.

PARTIAL INSANITY.

1. (Evidence of.) Where a transaction is impeached on the ground of unsoundness of mind, proofs of general sanity are of themselves no sufficient answer to alleged indications of insanity on other points.-(Steed v. Calley, 1 Keen, 620.) 2. (Effect of, coupled with confidence) What degree of weakness of intellect in a donor is sufficient when coupled with the fact of habitual confidence reposed by him in the donee to avoid a gift, considered.-S. C.

3. (Effect of, on dealing with third party.) Where the gift was set aside, a transaction on which it was founded, being a purchase by the donor from a third party for the purposes of the gift, was also rescinded.-S. C.

PARTIES.

1. (Co-plaintiff, who ought to have been defendant.) Where a person who had no right to sue, but who ought to have been a formal party as defendant, was made a co-plaintiff, an objection taken on that score at the hearing was overruled. What, if the objection had been taken by answer, quære?—(Raffety v. King, 1 Keen, 601.

2. (Heir, suit against devisee.) In a suit against the devisee for applying real estate in payment of simple contract debts under the 3 & 4 Will. 4, c. 104, the heir is not a necessary party.-Weeks v. Evans, 7 Sim. 546.

3. (Representative of deceased partner.) A. being a partner in a firm, to which he was indebted jointly with B., with the concurrence of B. deposited with the firm, as a security, the title deeds of an estate of which they were tenants in common. Upon A.'s death a bill was filed by the surviving partners against his heir and B. for the sale of the estate: Held, that A.'s personal representative was a necessary party for the purpose of taking the accounts between A.'s estate and the firm. Scholefield v. Heafield, 7 Sim. 667.

PLEADING.

(Plea of judgment in another Court.) Such plea ought to set forth clearly, that the judgment relied on was by a Court of competent jurisdiction, that the subject matter was the same, the issue the same, and the result conclusive.-Behrens v. Sieveking, 2 M. & C. 602, overruling the decision of the Muster of the Rolls, who had allowed the plea.

N. B. The point in Behrens v. Sieveking was precisely similar to that in Behrens v. Pauli, 1 Keen, 450; Law Mag. No. 37.

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PORTION. (Satisfaction of by residue-Difference in provisions-Admission of married woman.) Where a father upon the marriage of his daughter covenanted to settle on her and the children of the marriage a certain sum, and afterwards bequeathed to her a moiety of the residue of his personal estate, upon trusts similar to those in the covenant for the benefit of the daughter, but with this difference as to the children, that, by the covenant, their shares were subject to the joint appointment of the husband and daughter, but by the will to the sole appointment of the daughter; and by the will provision was made for the children of any fature marriage also: Held, that the moiety of the residue, which it appeared was more than equal to the sum mentioned in the covenant, was a satisfaction of the covenant, subject, nevertheless, to the inquiry as to the amount of such residue, as the admission of its being equal to the portion was by the answer of a married woman.— Earl of Glengall v. Bernard, 1 Keen, 769.

POWER.

1. (Reference to.) A testatrix having under her mother's will a power of appointing 20001. out of the share of which she was made tenant for life by the same will, gave by her own will three legacies, amounting together to 20007., and also 211. to each of her executors, and proceeded as follows:-" Forasmuch as the amount of my property is not yet ascertained, the same awaiting the settling of my mother's affairs, my will is, that if my money and personal estate should not be sufficient to pay the said legacies in full, the legatees shall make an abatement:" Held, not to be an execution of the power.-Buxton v. Buxton, 1 Keen, 753. 2. (Vested reversion--Appointment of.) A testator bequeathed a fund in trust for A. for life, and at her death, if B. should then be unmarried, in trust for B. absolutely; but if married, then upon trust as she should appoint; and in default thereof, for her separate use for life, and subject thereto for her absolutely. B. married after the death of the testator in the lifetime of A., and died also in her lifetime, having appointed the fund: Held, that the appointment was good.Ashford v. Cafe, 7 Sim. 641.

PRACTICE.

1. (Appeal-Demurrer.) On appeal from an order allowing a demurrer to whole bill, the plaintiff is entitled to begin.-Attorney-General v. Aspinall, 2 M. & C. 613.

2. (Evidence-Enlarging publication.) The authority given to the master under the 3 & 4 Will. IV. c. 94, s. 13, to enlarge publication, refers to an extension only of the time within which publication is to pass, and does not warrant the master in giving leave to one party to examine further witnesses after the depositions on the other side have been delivered out.-Carr v. Appleyard, 1 Keen, 725. 3. (Evidence-Change in title of suit.) Where a person files a bill as the widow of A., and evidence is taken in the suit, and upon its appearing afterwards that she was, at the time of her supposed marriage with A., the wife of another person, files a supplemental bill by her real name, making him a defendant: Held, that the evidence taken in the original state of the suit might be used in the suit as altered. Giles v. Giles, 1 Keen, 685.

4. (Injunction--Affidavits.) A special injunction was moved for before answer without notice, the proper affidavits being filed, and the Court on such motion directed notice to be given, but the answer was put in before the motion came on after notice: Held, that the affidavits might be read. (Glassington v. Thwaites, 1 Sim. & Stu. 124.)-Ashton v. Kemble, 7 Sim. 628.

5. (Injunction-Order nisi.) An order nisi to dissolve an injunction after publication of evidence in the cause is irregular.-Barnett v. Mole, 1 Keen, 645.

6. (Motion-Service of notice.) Service of a notice of motion on a defendant before appearance is irregular, unless the leave of the Court be first obtained.--Hill v. Rimell, 2 M. & C. 641.

7. (Proof at hearing-Execution of power.) It was ruled by the Vice-Chancellor that where a power was to be exercised by a deed executed in the presence of and attested by witnesses, the deed exercising the power could not be proved virá voce at the hearing. -Brace v. Blick, 7 Sim. 619.

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8. (Setting down cause for hearing.) A cause may be set down for hearing in the cause book entitled of the term in which publication passed, provided the subpœna to hear judgment is returnable (as it may be under the eighty-second order) in the vacation after such term, the cause book of the term being in fact the book of causes for the term and the sittings after it..--Turner v. Hitchon, 1 Keen, 815. (Affirmed on appeal, 2 M. & C. 710.)

9. (Solicitor and client--Course of proceeding to compel payment of a balance found due on taxation.) The following certificate was given by the Registrar: "The solicitor must first demand payment of the money found due from his client, and if it is refused, then he must apply to the Court for the four-day order, which will be granted on producing an affidavit of the demand and refusal, and of the service of the notice of motion. The four-day order is then served upon the client, and demand again made, and, upon refusal, an order for commitment is granted, without notice, but an affidavit of service of the four-day order, and of the demand and refusal, is produced to the Registrar."-Stocken v. Dawson, 7 Sim. 547.

See AMENDMENT; ATTACHMENT; INJUNCTION, 1; INTERPLEADER, 1; Short CAUSE.

SALE UNDER DECREE.

(Reference as to title.) Where there is a sale under a decree, the purchaser is en

titled, as in other cases, to have a reference as to the title at the expense of the estate.-Camden v. Renson, 1 Keen, 671.

SAVINGS BANK.

(Appropriation of surplus.) Before the passing of 9 G. 4, c. 92, which took place in July, 1828, the surplus money in savings banks, after payment of expenses and interest on deposits, was divisible among the depositors. By the 22d section of that act, it was provided, that within six weeks of the 20th November, 1828, the trustees should ascertain the amount of the increased fund to that date, and after retaining enough for future management, should appropriate the surplus in the manner provided by their rules and regulations made before the passing of the act, or, in the event of no such provision being made, in such manner as the trustees, at a general meeting to be convened according to their rules, should think proper.

The rules of the Arundel savings bank provided that no trustee or any person having any control in the management of the institution, except the actuary, should derive any benefit from any deposit made therein.

Held, that an appropriation of part of such surplus to the repairs of a bridge, to which the trustees were liable to be rated, was, by the joint effect of the rules and the 22d section of the act, illegal.

Whether in the absence of any restriction by the rules, such an appropriation would, in the case of any savings' bank established before the 9 G. 4, c. 92, be proper, quære?— Holmes v. Henty, 10 Bligh, N. S. 255.

SECRET TRUST.

(Promise by devisee.) Testator gave all his real and personal estate to his wife absolutely, adding these words, "having a perfect confidence that she will act up to those views which I have communicated to her, in the ultimate disposal of my property after her decease." The wife died intestate, and a bill was filed by two natural children of the testator against her heir and administrator, and against the heir and next of kin of the testator, to establish a secret trust on behalf of the plaintiffs, on the ground of a promise given by the wife, when the will was made, that she would dispose of the whole of the property in favour of them. Nothing, however, was proved beyond a promise to give an uncertain quantity, if the plaintiffs were respectable: Held, that the circumstances were not sufficient to raise a trust, though it was said by the Court, that it would have been otherwise if the case stated by the bill had been made out.

No objection was taken on the ground of the trust being set up after the death of the alleged trustee nor was any notice taken in the judgment of a claim set up by the next of kin of the testator, who contended that the devise to the wife was for life only.-Podmore v. Gunning, 7 Sim. 644.

See report of motion for receiver in this cause, 5 Sim. 485. SEPARATE USE.

(Marriage of infant.) Where a legacy was given to a female infant, contingent on her attaining twenty-one, and she afterwards marries under that age: Held, that the legacy did not pass to her husband by the act of marriage, but vested in her for her separate use at twenty-one, on the ground that, being an infant, she could not dispose of her interest; and therefore the principle of Massey v. Parker, 2 M. & K. 174, from which this case was expressly distinguished, did not apply.

Some stress was also laid by the Court on the circumstance of the legacy being contingent.-Johnson v. Johnson, 1 Keen, 648.

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