case of an action brought against a contractor for the removal of dust, &c. appointed by the Commissioners of Sewers for the city of London, for an alleged trespass, in seizing a cart supposed to contain dust, and assaulting and imprisoning the driver. Breedon v. Murphy, 3 C. & P. 574. [Best]

A notice of action against a Magistrate, under 24 Geo. 2. c. 44, is sufficient to warrant a writ, and proceedings against the Magistrate and a constable jointly.

Where notice was given to the Magistrate as above, and the plaintiff, after the expiration of a month, sued out a writ against the Magistrate alone, and afterwards abandoned that writ, and sued out another against the Magistrate and constable jointly: -Held, that the notice was sufficient to warrant the second writ, and proceedings thereupon. Jones v. Simpson, 9 Law J. M.C. 45, s. c. 1 C. & J. 174, s. c. 1 Tyrw. 32.

In a notice of action to a Magistrate, the residence of the plaintiff's attorney was described, at the foot of the notice, as of Half Moon-street, Piccadilly, London. Quare-whether it was sufficient, Half Moon-street being in Middlesex. Mills v. Collett, 7 Law J. M.C. 97, s. c. 6 Bing. 85, s. c. 3 M. & P. 242.

ADJUSTMENT. [See INSURANCE.]

ADMINISTRATION.

[See EXECUTOR AND ADMINISTRATOR.]

(A) WHERE REQUISITE.

(B) WHEN AND TO WHOM GRANTED. (C) LIMITED.

(D) REVOCATION.

(E) BOND.

(F) PRACTICE.

(A) WHERE REQUISITE.

A, by will, directed his debts to be paid out of his personal estate, and the deficiency to be made up out of his real estate; and subject thereto, he devised his copyhold messuages. Testator died. A creditor's bill was then filed, but neither the heirat-law nor any personal representative were parties; in fact, the will had not been proved; there was no personal estate:-Held, that administratio cum test. annexo must be taken out, and that the administrator and heir-at-law must be parties. Bill to be so amended. Fordham v. Rolje, 1 Tam. 1.

(B) WHEN AND TO WHOM GRANTED. The Court will grant administration, with a nuncupative will annexed, as contained in an affidavit of three witnesses, holding that 29 Car. 2. c. 3. s. 23. applies to merchant seamen. Morrell v. Morrell, 1 Hag. Ec. 51.

Administration granted to the nephew, on the renunciation of his father, the brother, and sole nextof-kin of the deceased. In the goods of Mary Keane, 1. Hag. Ec. 692.

5

Administration with a will (in which was no executor nor residuary legatee) annexed, decreed to two aunts of the deceased, legatees in the will, and daughters of the grandmother, the next-of-kin, she being ninety years of age and incapable. In the goods of William Hinckley, 1 Hag. Ec. 477.

21 Hen. 8. c. 5. s. 3. leaves it to the discretion of the Ordinary to grant administration, to the widow or to the next-of-kin. Dew v. Clarke, 1 Hag. Ec. 312,

The next-of-kin preferred, the lunacy of the widow being shewn; but the Court called for an inventory, and directed securities to justify. In the goods of J. Williams, 3 Hag. Ec. 217.

On a petition respecting the grant of administration, the asserted widow having married, during the deceased's lifetime, another man (since convicted of felony), had a daughter by him, and continuing to cohabit with him, the Court granted administration to the sister, and condemned the widow in costs. Conyers v. Kitson, 3 Hag. Ec. 556.

The statute 21 Hen. 8. c. 5. applies only to such as are next-of-kin at the time of the death; therefore, the Court made the de bonis non grant to the executor of the administrator (the sole next-of-kin at the death), in preference to persons entitled in distribution, who had received their shares and signed releases. Savage v. Blythe, 2 Hag. Ec. Ap.

150.

Where the Court is not bound by the statute of 21 Hen. 8. c. 5, it always grants the administration to those who have the interest.

Administration de bonis non granted to a person entitled under a deed of gift from the first administratrix to the whole beneficial interest, in preference to one who was not next-of-kin at the time of the death, and who, consequently, had no statutable right. Almes v. Almes, 2 Hag. Ec. Ap. 155.

Estate not vested by law or equity, administration de bonis non to the next-of-kin. Amhurst v. Buwdes, 2 Hag. Ec. Ap. 158.

Administration de bonis non to a feme covert granted to the representative of the husband, administrator, in exclusion of the wife's kin. Darley v. Whaddon, 2 Hag. Ec. Ap. 165.

An original administration to a feme covert decreed to her next-of-kin, in preference to the representative of the husband, who survived her. Hale v. Dalman, 2 Hag. Ec. Ap. 165.

After the death of the husband, administrator of his wife, administration de bonis non granted to her next-of-kin, in preference to the husband's representative. Kinleside v. Cleaver, 2 Hag. Ec. Ap. 169.

Chose in action to wife. Husband, administrator, dies without altering property, and makes a will: bis administrator, with will annexed, takes administration de bonis to the wife; that administration called in by her next-of-kin and revoked, the property not being altered by the husband. Kinuston v. Mills, 2 Hag. Ec. Ap. 158.

Administration of the wife's goods to the executor of the husband, who died without taking administration to her. Rees v. Cart, 2 Hag. Ec. Ap. 161.

Administration of a feme covert, granted to the daughter of the third husband, revoked, and granted to the grand-children by her first husband; it being shewn that an estate would come to them. St. Aubyn v. Page, 2 Hag. Ec. Ap. 163.

A legacy to a wife, not received by her or hus

band, nor administration taken to the wife by the husband; his executor, and not the next-of-kin, to have administration to the wife. Plaidel v. Howe, 2 Hag. Ec. Ap. 164.

The Court will grant administration, with the will annexed, to one of two universal legatees, a decree with intimation having issued in the name of the other, who was since dead. Law v. Campbell, 1 Hag. Ec. 55.

The original will being lost, and no copy in existence, a limited administration with the will (contained in an affidavit) annexed, granted to the widow, as executrix and residuary legatee for life, on her giving security; the eldest son having been personally cited, two other children, minors and abroad, cited by a servant on the Royal Exchange, and the remaining five consenting. Vallance v. Vallance, 1 Hag. Ec. 693.

Administration de bonis non with a will annexed, in which was no executor, granted to one of two legatees, a decree with intimation having issued in their joint names against the residuary legatee, the sureties justifying in the amount of the surplus beyond the interest of the one legatee, or (on a proxy of consent from the other,) beyond their joint interests, and an affidavit of no outstanding debts being made. Pickering v. Pickering, 1 Hag. Ec. 480.

After the case had stood over some time for further information, the Court, on securities justifying, granted to a residuary legatee administration, (with a will of 1801 annexed,) on affidavits that the party went to Demerara in 1802, and had not been heard of since 1804; that his mother, who died in 1826, believed him to have died many years before, a bachelor, and without a later will; and that diligent inquiries had been lately made at Demerara, but without obtaining conclusive evidence of his death. Dean v. Davidson, 3 Hag. Ec. 554.

Administration durante minoritate formerly granted to the mother, having ceased by the minor's death, and the mother having thereby become joint residuary legatee with another minor, administration de bonis non decreed to her, one executor having renounced, and the other, who was abroad, being cited. Akers v. Dupuy, 1 Hag. Ec. 473.

The executors having died in the deceased's lifetime, a joint limited administration, with the will of a married woman under a power annexed, granted to five residuary legatees, to whom a similar grant had been made at York, the factum domicilii, and who were all parties to a suit in Chancery. In the goods of Sarah Blakelock, 1 Hag. Ec. 682.

Administration, limited to the receipt of dividends in the English funds, granted to a minor residuary legatee, the wife of a minor, both subjects of, and resident in Portugal, on a certificate being produced, that by the law of Portugal she was entitled. In the goods of the Countess Da Cunha, 1 Hag. Ec. 237.

Administration of the goods of an intestate bastard, drowned, together with his wife and only child, will be granted to a creditor; the King's Proctor having been cited, but not the representatives of the wife, on the presumption that the husband survived, and the debt being large, and the property small. Colvin v. H.M. Procurator General, 1 Hag. Ec. 92. Administration, as to a creditor, decreed to the mother of an intestate, advanced by her; the father, though alive, having been divorced à vinculo matri

monii, and married again. Aitkin v. Ford, 3 Hag. Ec. 193.

The Court grants administration to a bond-creditor, who has also a mortgage on leasehold property. Roxburgh v. Lambert, 2 Hag. Ec. 557.

Administration granted to one creditor; a decree with intimation having issued in the name of another. Talbot v. Andrews, 1 Hag. Ec. 697.

(C) LIMITED.

The Court will grant to the agent of a foreign prince an administration limited, to substantiate proceedings in Chancery, but will not extend it to the receipt of a debt, without a power of attorney from proper authorities. In the goods of the Elector of Hesse, 1 Hag. Ec. 93.

Administration be bonis non limited to a certain legacy, granted to the representative of the substituted legatee, without citing the representative of the residuary legatee, resident abroad, but by practice entitled to the general de bonis grant; no claim to this legacy having, since the death (in 1797) of the residuary legatee, (also the executor and legatee for life,) been made by his representative. In the goods of Martha Steadman, 2 Hag. Ec. 59.

The Prerogative Court granted an administration, limited to assign a term in the diocese of A, the will of the deceased (who had no goods out of the diocese of B, except this satisfied term,) having been proved in the Court of B, and the chain of executors being subsequently unbroken. In the goods of Mary Powell, 3 Hag. Ec. 195.

A will, in existence after the testator's death, being accidentally lost, and the contents unknown, administration, limited till the will be found, granted (on justifying securities) to the widow alone, with a minor daughter entitled in distribution. In the goods of Benjamin Campbell, 2 Hag. Ec. 555.

An administrator, pendente lite, will be appointed, such appointment being necessary from the nature of the deceased's property, and from the conduct of one of the parties in the suit; and the nominee of the other party, on whose conduct there is no impatation, may be selected, if shewn to be impartial, competent, and responsible. Young v. Brown, 1 Hag. Ec. 53.

Administration pendente lite, and limited to certain property, granted, by consent, to one of the parties. Schoolmasters of Scotland v. Fraser, 2 Hag. Ec. 613.

The 38 Geo. 3. c. 87. only authorizes the grant of a limited administration durante absentia of the executor, when there are proceedings depending in Chancery. In the goods of Thomas Davies, 2 Hag. Ec. 79.

Administration durante minoritate of children in the East Indies, decreed to the uncle, resident in Ireland, he giving full justifying security; the grandfather, to whom, as next-of-kin, the grant would naturally pass, being upwards of eighty, and also resident in Ireland. In the goods of John Ewing, 1 Hag. Ec. 381.

(D) REVOCATION.

An administration (limited to substantiate proceedings in Chancery,) which was decreed, on the next-of-kin being cited, and after due inquiries for a will, and was called in by the executors of a will,

An executor having propounded papers in an allegation, which was rejected, and administration being thereupon decreed to the next-of-kin, a legatee cannot be allowed to call in such administration, in order to repropound the same papers, unless he can bring in an admissible allegation, and shew by affidavit that the facts have come to his knowledge since the rejection of the former allegation; in which case-semble, that even the executor might repropound them. Wood v. Medley, 1 Hag. Ec. 645-61.

The Court will not enforce a monition to transmit the original will, proved in an inferior jurisdiction, where deceased died; but will grant a limited administration, to assign a satisfied term, situate in another diocese. Crosley v. the Archdeacon of Sudbury, 3 Hag. Ec. 197.

The Court at Madras (the competent jurisdiction) baving granted probate to the widow, as universal legatee, and constructive executrix of an informal paper, in which character no security is required; this Court, considering that under the circumstances the widow may be called on to prove the paper per testes, or that the grant may be appealed from, will only decree administration, with the paper annexed, to her, as relict and principal legatee, on giving security. In the goods of Lieut.-Col. Read, 1 Hag. Ec. 474.

Administration, with paper annexed, wherein were sundry alterations in the body, a blank left for the date, and which appeared, from internal evidence, to have been written more than nine years before death, and was indorsed-" Outline of the will," cannot be granted, in common form, on the exhibition of a proxy of consent from all interested under an intestacy, there being no evidence to rebut the presumption that the paper was deliberative. In the goods of John Herne, i Hag. Ec. 222.

ADULTERY.

[See BARON AND FEME, DIVORCE, and MARRIAGE.]

In an action for criminal conversation, the plaintiff will be entitled to a verdict, unless he has been in some degree a party in his own dishonour, either by giving a general licence to his wife to conduct herself as she pleased with men generally, or by assenting to the particular act of adultery with the defendant, or by having totally and permanently given up all the advantage to be derived from her society. Winter v. Henn, 4 C. & P. 494. [Alderson]

Held, in an action for criminal conversation, it was not matter of defence, but only in mitigation of damages, that the plaintiff, having married an actress, concealed the marriage from her mother, and very seldom saw his wife, but suffered his wife to remain living with her mother, as if she were a single and allowed her to continue her theatrical performances in her maiden name. Caleraft v. the Earl of Harborough, 4 C. & P. 499. [Tindal]

woman,

ADVANCEMENT.

Construction of a covenant, that one child should be entitled to a share of the father's property, equal

to the fortunes or advancement of the most favoured child.

What shall be deemed an advancement to a child, with reference to the particular language of an instrument. Baily v. Lloyd, 7 Law J. Chanc. 98.

The assumption by a father, of a debt due from his son to a partnership, in which the father and the son, along with other persons, were partners, was deemed an advancement of a portion to a less amount, to which the son would have been entitled upon the father's death. Ansley v. Bainbridge, 1 Russ, & M.

657.

ADVOWSON. [See CHARITY.]

AFFIDAVIT.

(A) HOW AND WHEN ENTITLED. (B) BEFORE WHOM TO BE SWORN. (C) FORM AND REQUISITES OF. (D) DEFECTIVE AND IRRELEVANT.

(A) HOW AND WHEN ENTITLED,

An affidavit to be used on the Crown side of the King's Bench should not be entitled in a cause, unless the proceedings have originated in that Court, or have been removed by a certiorari.

Accordingly, where a rule had been obtained in a case growing out of an indictment at the Old Bailey Sessions, and the affidavits were entitled, "The King, on the Prosecution of G. W. and W. C. against T. S.," which was the proper title of the cause at the Sessions:-Held, that they were improperly entitled. The King, on the prosecution of Wagner and Chapman, v. Smith and another, 8 Law J. M.C. 100.

A rule nisi for an attachment for non-payment of money under an award, was entitled, "In the matter of -," but the affidavit of service was entitled "Between A B plaintiff, and C D defendant":Held irregular, as it should have been entitled the same as the rule. In the matter of Houghton and Fallows, 7 Law J. C.P. 71, s. c. 2 M. & P. 452.

In the title of affidavits the christian and surnames of the parties should be inserted; but where filed in support of a motion, and incorrect in that respect, and the objection was taken on shewing cause, the Court intimated that they would permit their being altered and resworn to meet the merits of the case. Lodd v. Wilson, 9 Law J. Exc. 5, s. c. 1 C. & J. 281, s. c. 1 Tyrw. 18.

Affidavit made on behalf of defendants, entitled in the cause as against twenty defendants named in the process :-Held, by Mr. Justice Bayley and Mr. Justice Parke, that it was improperly entitled; and that it should have been entitled in the cause as against the seventeen who had been declared against. -Contrà, Mr. Justice Littledale. Beeston v. Beckett, 7 Law J. K.B. 193, s. c. 4 M. & R. 100.

(B) BEFORE WHOM TO BE SWORN. An affidavit made by a defendant in a suit in the Court of Exchequer, sworn before a Magistrate in Scotland, permitted to be read. Ellis v. Sinclair, 3

Y. & J. 273.

An affidavit sworn in Scotland before a commissioner for prize bail, is irregular. Sylvan, 2 Hag. 155.

(C) FORM AND Requisites of.

An affidavit of merits must pursue the usual form -a good defence upon the merits; "a good and meritorious defence to the action," not sufficient. Bower v. Kemp, 9 Law J. Exc. 80, s. c. 1 C. & J. 287. The names of all the deponents must be inserted in the jurat. Houlder v. Fasson, 8 Law J. C.P. 18, s. c. 6 Bing. 236, s. c. 3 M. & P. 559.

All affidavits must be signed with the full christian and surname of the deponent, otherwise they cannot be read. In re Olivia Serres, soi disant Olive, Princess of Cumberland, 8 Law J. C.P. 109.

(D) DEFECTIVE AND IRRELEVANT. Affidavit verifying proceedings at law not evidence; and taken off the file with costs. Ex parte Barnes & others, in re Daniell, 1 Mont. & M. 9.

Where affidavits contain irrelevant matter, the Court will not allow them to be read, but what is relevant may be taken as read. Peddle v. Evans, 1 Hag. Ec. 689.

AFFIDAVIT TO HOLD TO BAIL. [See BAIL.]

AGENT.

[See PRINCIPAL AND AGENT.]

AGREEMENT.

[See CONTRACT, and SPECIFIC PERFORMANCE.]

ALE AND BEER. [See LICENCE.]

ALIEN.

Under the 24th section of 37 Geo. 3. c. 97, lands in Great Britain, which on the 28th of October 1795, were held by American subjects, continue capable of being granted, sold, or devised by them, as if they were natives. Sutton v. Sutton, 8 Law J. Chanc. 161, s. c. 1 Russ. & M. 663.

ALIMONY.

An assignment, apparently fraudulent and colourable, by the husband, of all his property, after the commencement of a suit by the wife for divorce, cannot affect her title to alimony pendente lite. Brown v. Brown, 2 Hag. Ec. 5.

In answer to an allegation of faculties, it is proper to state that the wife brought no fortune, but not DIGEST, 1828-1831.

that her father is possessed of large property. The estimated value of all marketable securities must be included in the calculation of the husband's income, in order to the allotment of alimony pendente lite. Harris v. Harris, 1 Hag. Ec. 351.

Alimony, pendente lite, is usually about one-fifth of the annual income; but the proportion may vary according to the circumstances of the parties. Hawkes v. Hawkes, 1 Hag. Ec. 526.

The Court allotted alimony, pendente lite, at the rate of 501. per annum out of an income of 1401., and refused to allow the monition not to issue till after fifteen days. Brown v. Brown, 2 Hag. Ec. 5.

Permanent alimony is always larger than alimony pendente lite. Out of an income of 750l., the husband having no state nor family to maintain, 2501. allotted to the wife-she taking charge of their only child. Kempe v. Kempe, 1 Hag. Ec. 532.

When alimony, pendente lite, is decreed to commence from the return of the citation, all sums paid subsequently to that return, are to be allowed as part-payment. When no sufficient cause is shewn for neglecting to comply with a monition personally served, a party may, at once, be pronounced contumacious; but aliter, for a mere informality, if he has virtually obeyed, or is ready to obey, the monition. Hamerton v. Hamerton, 1 Hag. Ec. 23.

Alimony is allotted for the maintenance of the wife from year to year; the Court, therefore, will not, without sufficient cause shewn for the delay, enforce payment of arrears beyond one year prior to the monition.

Where both parties had long abstained from applying to the Court, the one for a reduction of alimony, the other to enforce the regular payment, it would not enforce arrears, nor inquire as to the sums paid by the husband for his wife's debts, incurred by reason of non-payment of that alimony; nor reduce alimony, on account of an express waiver of a part thereof by the wife, the additional expenses of the husband, occasioned by the mature age of children, the failure, from mismanagement of her trustees, of a portion of the funds set apart for the wife's alimony, or slight additions, aliunde, to her means. De Blaquiere v. De Blaquiere, 3 Hag. Ec. 322-9.

In a suit for a divorce, brought by the wife, repeated and profligate adultery being proved on the part of the husband, (who, however, had to main. tain and educate twelve children,) permanent alimony at the rate of 600l. per annum, (in addition to 120l. per annum separate property,) out of a net income of 4,000l., allotted from the date of the sentence, three years before, the cause having in the interval been carried by appeal to the Delegates, but remitted, no steps being there taken by the appellant, and the remaining delay being occasioned by his absence from the kingdom. Durant v. Durant, 1 Hag. Ec. 528.

AMENDMENT.

1. AT LAW.

(A) PROCESS.
(B) DECLARATION..
(C) RECORDS.

C