equitable mortgagee, being also a specialty creditor, who seeks to charge the real assets of a testator generally, as well as to enforce his security, is on behalf of the plaintiff, and all other the creditors of the testator; and the Court permitted a plaintiff at the hearing to amend his bill accordingly; and, (with reference to the Statute of Limitations):-Held, that such bill must date from the day of the filing of the original bill, and not from the day of the amendment. Blair v. Ormond, 428 2. Quære, whether the circumstance of an administrator ad litem being made a defendant to an administration suit, is sufficient to satisfy the Court that there are no personal assets, and to warrant a decree being made at once against the real estate, without the usual preliminary accounts of the personal estate. But where the plaintiffs, in such a suit, were persons who could obtain general administration, Held, that, in such a case, the personal estate was not sufficiently represented by an administrator ad litem. And where it did not appear upon the bill, that the administration was so limited, and no objection for want of parties was taken by the answer, the Court did not make a decree, saving the rights of absent parties, under the 11th Order of August, 1841, but allowed the objection when made at the hearing, and gave leave to amend. Robinson v. Bell, 630 3. There may be circumstances under which the Court will, at the suit of universal legatees under a will, direct an account against a debtor to the testator's estate, without collusion being established between the debtor and the personal representative, or any evidence of insolvency on the part of the latter, or of his refusal to sue the debtor, other than his omission to in stitute proceedings for a considerable period. Quaere, whether an honest refusal by an executor to institute a suit against a solvent person reasonably alleged to be equitably indebted to the testator is sufficient of itself to enable the universal legatee of the testator to sue the debtor in equity, making the executor a party. Barker v. Birch, 376 4. A bill filed by certain members of a lodge, forming part of an association called "The Independent Order of Odd Fellows" (which consists of many corresponding lodges, and many thousand members), against other members of the lodge, complaining of being excluded from the lodge, and praying for a declaration that such exclusion was illegal and void, and for an injunction to restrain the defendants from applying a sum of 1487. 38. 4d. otherwise than according to the rules of the lodge, and for an account (if necessary) of all the property and funds of the lodge, and a declaration of the rights and interests of the parties, and for all necessary directions for giving effect thereto, and for an injunction and receiver, and general relief:-Held, on demurrer, not to be a case in which an injunction would be proper without other relief, or without view to other relief. Held, also, that it does not belong to the functions of the Court to make a decree containing declarations of right alone, or, in such a case as the above, a declaration of right and an injunction only. Held, further, that the only relief sought, independently of this injunction, was such as the Court could not grant with the parties then before it; and that, as the defect could not be remedied without rendering this suit unmanageable, leave to amend ought not to be given. Quare, whether the above associa tion is legal, and whether a court of equity will recognize a contract of association, which, although morally laudable, is, from the number of persons concerned in it, or otherwise, of such a nature as not to enable any of the established judicatures of the realm to deal with it beneficially, or whether such associations must not be left to regulate themselves by a moral rule, without judicial interference. Clough v. Ratcliffe, 164 5. More than twelve days after bill filed, a defendant filed a pleading which was a demurrer, and also an answer to the whole bill:-Held, that notwithstanding the 37th Order of August, 1841, the answer overruled the demurrer, and that it was not necessary to move to take the pleading off the file as irregular. Skey v. Garlike, 396 6. Upon a bill filed for discovery and relief, a plea to all the relief, but not in form to all the discovery, is not a plea to the "whole bill" within the meaning of the 48th and 49th Orders of May, 1845; and where, after the expiration of three weeks, a defendant having so pleaded to all the relief, but not to all the discovery, obtained, as of course, an order to dismiss the bill:-Held, that such order was irregular. An order to amend, after a plea to all the relief, and an answer to the discovery asked by a bill, is not to be obtained as of course under the 66th Order of May, 1845; and an order so obtained was discharged with costs. Neck v. Gains, 23 7. An exception to an answer held to have been properly allowed, although it set out inaccurately the interrogatory, the answer to which was the subject of exception, there being, besides the inaccurate transcript of the interrogatory, a reference to it by its number:-Semble, that the refer 2. A donee of a power affecting two sums of Stock of different descriptions, appointed a gross amount, part of one of them, and exceeding one-fourth part of it. Afterwards, she executed successively, deeds purporting to appoint aliquot parts of both funds, as one subject, and without noticing the previous appointment of the gross sum, which was never severed from the mass. The appointees comprised all the parties entitled, subject to the appointment, and the aliquot parts so appointed amounted to four-fifths, thus exceeding, with the earliest appointment, the entirety of one of the funds. Held, that the latest appointees were not entitled to put the earlier to their election, so that the excess might be made good out of the unappointed one-fifth of the unexhausted fund. Held, also, that the successive appointments of the aliquot parts operated upon aliquot parts of the whole of each fund, and that, therefore, the loss arising from the deficiency of the one fund fell upon the last appointees. A tenant for life of a trust fund, with power to appoint the reversion to a child, appointed a portion of the reversionary fund to a daughter absolutely, by a deed to which the daughter, GGG 2 the daughter's husband, and the trustees of the fund were parties; and by the same deed she assigned her life interest in the appointed portion, to the daughter absolutely. By a subsequent witnessing part, it was expressed to be agreed and declared by and between all the parties, that the appointed portion should be held on trust for the daughter's separate use, during her life, and afterwards on trusts for her husband and children :Held, that, (independently of any question as to the merger of the life estate), the trust for the separate use was good. But quære, whether the limitations of the subsequent interests were effectual. : The rule that the costs arising from difficulties of construction fall on the residuary estate, does not apply to an unappointed portion of a fund. Trollope v. Routledge, 662 3. By a settlement of 1813, Stock was settled upon trust, in the events which happened, for such persons as a married woman should, during and notwithstanding coverture, (among other modes,) by her last will and testament in writing, or any writing purporting to be, or in the nature of, a will, to be by her duly signed and delivered, in the presence of, and to be attested by two or more credible witnesses, give, direct, limit, and appoint. The husband of the donee died in 1819, and the donee in 1840. After the death of the donee of the power, a writing was found in the form of a letter, and sealed on the outside only, purporting to bear date August 20th, 1816, and to be made in execution of the power, and concluding thus: "As witness my hand and seal," with a signature purporting to be that of the donee, and two other names in other hands-writing, but with no memorandum of attestation. On a reference to the Master, in 1847, as to the form and manner of the execution of this paper, no evidence could be produced, but such as was afforded by the document:Held, that the document was not shewn to be a due execution of the power. Burnham v. Bennett, 513 4. A testator devised his real estates to J. H. and A. L., upon trust, immediately upon the happening of either of two events, (i. e. his niece's attaining twenty-five or marrying,) to settle the same, or such part thereof, as the trustees should think proper, to the use of the niece for life, with remainder to the use of her children, as she should appoint, and, in default of appointment, to her children, with remainder to the use of A. L. and her heirs absolutely; and as to such parts as the trustees should not think fit so to settle, (with respect to which the testator gave them absolute discretion,) upon trust to convey the same to S. L. (who was the testator's heir-at-law) in fee. In 1831, J. H. and A. L. proved the testator's will, and accepted its trusts. J. H. shortly afterwards desired to retire from the trust, and a deed was executed, but not in conformity with the trusts, purporting to appoint J. O. a trustee in his stead, but no conveyance was executed to J. O. In 1842, J. H., A. L., and J. O. executed a deed, purporting to be made in exercise of the power of appointment given by the testator's will to his trustees, and thereby appointed the estate to A. L. in fee, J. H. executing this deed on receiving an indemnity from A. L. and her solicitor: -Held, that the direction to settle was not a power in the nature of a trust which would prevail if no appointment was made, but was purely discretionary, and that the effect of the original trustees remaining inactive was to leave the beneficial interest to result to S. L., the heir-at-law. Held, also, that the deed of 1842 was not a proper execution of the power. An heir-at-law, claiming by bill as such, stated his title in detail. The defendants, by their answer, put him to prove such title, but neither asserted nor suggested that there was any other heir. The plaintiff proved his pedigree in the cause. Held, that the Court might and ought to decide the disputed question of pedigree, without sending it to a jury; and it appearing that the evidence of heirship was, previously to the institution of a suit, submitted to the defendants, the trustees, and was such as they ought to have been satisfied with, the Court gave the plaintiff the costs of the suit as against the trustees, including the expenses of the genealogical evidence. Lancashire v. Lancashire, 288 See AGREEMENT, 3. PRACTICE. 1. Answer. Part of the assets of a testator were in the course of administration in India, by an official administrator appointed there. Before they were completely administered, a legatee's suit was commenced in this country against the executrix who had proved the will here, and who, after obtaining from the Master successive orders extending the time for putting in her answer, obtained one more order, giving her six weeks' further time. This order was made upon an affidavit of her solicitor, setting out a letter from the Indian administrator, who promised to remit the balance due from him by the next mail, and stating that the receipt of this balance and of the administrator's accounts were necessary to enable the defendant to put in a complete answer:-Held, that although the Court might not itself have thought fit to grant the indulgence, the order ought not to be discharged. Principles on which the Court proceeds in reviewing the Master's decision on such points. Nott v. Nott, 373 2. Dismissal of Bill. Where, in an injunction suit, the plaintiffs moved before answer that the bill might be dismissed, and that the defendants might pay the costs of the suit, on the ground that the suit was occasioned by their wrongful act, and that all the purposes of it had been attained by the motion for an injunction, the Court, although considering such an application reasonable, declined to introduce a new practice by making the order. Langham v. Great Northern Railway Company, 503 3. Exceptions. Exceptions to answer will not be ordered to be taken off the file, because the order of reference is not served in due time; but if the plaintiff serves the order after the time, and obtains a warrant, the defendant is entitled to apply to the Court for his costs. Atlee v. Gibson, 162 Semble, that an exception to the report, for that the Master has found the said state of facts impertinent, from the word "&c." to the word "&c.;" whereas the Master ought not so to have found, but ought to have found that the same was not impertinent, is sustained, if any part of the passage is pertinent. Raven v. Kerl, 236 4. Infant. A reference as to which of two suits is most for the benefit of infant plaintiffs, does not of itself stay the proceedings in the suit. Westby v. Westby. 410 5. Service. An affidavit of service of a copy of a bill is insufficient, if it omit in the title the name of one although no process is bill against such party. sep, of the parties, prayed by the Lay v. Prin 630 The circumstances, that certain solicitors had acted as the solicitors of a defendant to a foreclosure suit in several other matters, including a suit relating to the estate which was the subject of the foreclosure suit, and that such defendant could not be found, so as to be personally served with a subpœna, to answer the bill of foreclosure: -Held insufficient grounds for ordering substituted service on the solicitors to be good service on him. Hurst v. Hurst, 694 Held, that a letter from a defendant, admitting the receipt of a copy of a subpoena, was not sufficient evidence that he had been served, for the purpose of entitling the plaintiff to enter an appearance for him, although all attempts to serve him personally had failed, and there was reason to believe he kept out of the way to avoid service. Gathercole v. Wilkinson, 681 Where a subpoena to answer an amended bill had been served on defendant's solicitor:-Held, that an appearance could not be entered by the plaintiff for the defendant, under the 29th Order of May, 1845. Sewell v. Godden, 6. State of Facts. 126 Where the Master has expunged matter in a state of facts for impertinence, he should nevertheless issue his certificate thereupon, in order that the opinion of the Court may be taken if requisite. To such certificate exceptions may be taken. Where there is a doubt as to a passage being impertinent, it should be retained, and considered on the question of costs. Raven v. Kerl, 236 PRIVILEGED COMMUNICATIONS. 8. Traversing Note. Traversing note taken off the file, at the instance of the defendant, asking for leave to put in his answer after replication. Towne v. Bonnin, 128 See CREDITORS' SUIT. EVIDENCE, 4, 6, 7, 8, 9. PUBLIC COMPANY, 4. VENDOR AND PURCHASER, 7, 8. PRESUMPTION. See POWER, 2. PRIVILEGE FROM ARREST. See JURISDICTION, 2. PRIVILEGED COMMUNICA TIONS. 1. Upon settling interrogatories for the examination of a vendor in the Master's office, on a question of title between vendor and purchaser :Held, that the vendor was not compellable at the instance of the purchaser to state his motive for making a certain appointment, or to disclose confidential communications made by him to his solicitor and counsel respecting the property, although such communications were made merely on behalf of the consulting person singly, |