CONTAINED IN THIS VOLUME.
ADVANCE (TO PLAINTIFF OUT OF FUND IN COURT).
The Plaintiffs claimed, as next of kin of an intestate, a fund which was in the possession of the defend- ant as the nominee of the Crown, and after the Master had reported against the Plaintiff's title, the Court directed certain issues for the purpose of trying it. The Plaintiffs applied for an advance out of the fund, for the purpose of enabling them to try the issues, but this, which was opposed by the Crown, the Court refused. Nye v. Maule. Page 342 VOL. IV.
See SPECIFIC PERFORMANCE, 1.
AGREEMENT (SET ASIDE). Agreement obtained by a surgeon from a deceased patient set aside, upon the ground that the Court was satisfied that the patient never did agree to or intend to direct what in the alleged agreement he was represented as agreeing to and directing, and that his signature, if genuine, must have been ob- tained by fraud, or under such circumstances as rendered it the duty of a court of equity to pro- tect the patient and his estate from being prejudiced by it.
This relief stands upon a gene- ral principle applying to all the variety of relations in which do- minion may be exercised by one 3 A person
See CHARGE of Debts and LEGACIES.
See EXECUTors.
ORDER AND DISPOSITION.
ASSIGNMENT (EQUITABLE). A. having goods in the hands of B. as his agent at a foreign port, and being under liabilities to C., by letter to C. promised that he would direct, and by a subsequent letter to B. did direct B. to deli- ver over the goods to D., as the agent of C. at that port. Before the delivery of the goods, a com- mission of bankrupt issued against A., under an act of bankruptcy committed while his letter was on the way to B., and the goods were delivered by B. to D. in ignorance of the bankruptcy; Held, that C. had a good title, in equity, to the goods. Burn v. Carvalho.
ATTACHMENT.
See PRACTICE, 15 & 22.
Award held bad, and set aside; first, because the arbitrators had award- ed on a matter which was not referred
referred to them, and what they had so awarded without authority could not be separated from the other parts of their award; second- ly, because they had declined to arbitrate upon certain matters in- cluded in the reference.
Principles of the Court in deal- ing with awards. Bowes v. Fernie. Page 150
BANK (JOINT STOCK). See JOINT STOCK COMPANY.
See ASSIGNMENT (EQUITABLE). ORDER AND DISPOSITION. SET-OFF.
BOOKS AND PAPERS. See PRACTICE, 14, 20.
BREACH OF INJUNCTION. See INJUNCTION (BREACH OF).
CANAL SHARES. See WILL (CONSTRUCTION OF), 1.
CHARGE OF DEBTS AND LEGACIES.
See TRUSTEES RECEIPTS DIS- CHARGES, 1 & 2.
A., the owner of certain chat- tels, pledged them to B., who was a broker, to secure advances made on his behalf by B.; and B. after- wards, in his own name, and un- known to A., re-pledged the same chattels to C. to secure advances made by C. to B., but of which, unknown to C., A. was to have the benefit. C. having subse- quently applied in vain to B. for payment of his advances, threat- ened to realise his security. by a sale, which, however, he was from time to time induced to postpone, by the solicitations of B., and his assurances of speedy payment; and this was communicated by B. to A., his principal. In a suit by A. against B. and C., praying to redeem the property in pledge on payment of any balance found due on the account between him- self and B., it was held that A. had no equity to restrain C. from proceeding to an immediate sale. Nicholson v. Hooper. Page 179 Whether under the circumstances above mentioned, C. could make a good title to a purchaser. Quære. Ibid.
See ASSIGNMENT (EQUITABLE). SEPARATE USE, 3.
See SETTLEMENT (VOLUNTARY). 1. A bill was filed by persons in-
CONVEYANCE.
When an estate has been sold under a decree, and all proper parties have been ordered to join in the conveyance to be settled by the Master, if a party to the suit whom the Master considers a proper party to the conveyance, refuses to convey, the right course for the purchaser to take is, to move, against that party, that he be or- dered to convey; and not to move, against the Plaintiffs, that they be ordered to procure him to convey. Stilwell v. Mellersh.
terested as residuary legatees un- der a will against the executors and the other persons having in- terests, praying the usual accounts and the administration of the estate. The executors put in their answer, not however setting out the accounts which the bill asked. Afterwards, under an arrangement to which all parties consented, the executors verified their accounts by affidavit, and the sums thereby appearing to be in their hands were paid into Court in the cause. Two of the Defendants then filed a second bill against the executors and against all the other parties to the former suit, and thereby, in addition to the relief prayed by the first bill, sought to charge the executors personally, on the ground of fraud and breach of trust. In May 1835 a decree by consent was made in the first suit, by which all the accounts and in- quiries usual in an administration suit were directed. The Plaintiffs in the second suit afterwards brought on their suit to a hearing, but wholly abandoned the case of alleged fraud and breach of trust; and a decree was made dismissing their bill, but dirccting that their costs, up to the date of the decree in the first suit, should be taxed and paid out of the fund in Court in the first suit.
Upon appeal, this decree was varied, by directing that so much. of the second bill, as sought to charge
charge the executors personally, be dismissed with costs, and that the Plaintiffs pay to all the De- fendants so much of the costs of the rest of the suit as had arisen since the decree in the first suit, and that the residue of the costs of all parties be taxed; with a de- claration that the same ought to of be paid out of the estate; any the parties to be at liberty to ap- ply in the first suit relative there- to, and all proceedings in the second suit to be stayed.
The decree involved so much of principle, especially with re- ference to the dealing with the fund in the first cause, for the purposes of costs in the second, as to render the appeal an excep- tion to the ordinary rule which prohibits appeals merely on the question of costs. Taylorv. South- gate. Page 203 2. The costs of the suit, which the order of the Court below had thrown exclusively on the excess of accumulations arising from the annual produce of the trust estate, after the period allowed by the Thellusson Act, were, upon ap- peal, directed to be paid out of the general estate of the testator, including the fund accumulated within the permitted period, ex- cept the costs incurred in the separation of the excessive accu- mulation, which costs were di- rected to be paid out of such excessive accumulations.
An appeal against such an or- der is an exception to the or-
dinary rule prohibiting appeals merely upon costs. Eyre v. Mars- den. Page 231 3. Order varied, on appeal, as to costs, in a case in which they formed the sole subject-matter of the appeal.
Consideration of the circum- stances under which the Court will entertain appeals limited to the question of costs.
Davis. 4. Persons, not parties to the suit, but intervening before the Master, and making out their claims as next of kin of an intestate, whose estate is administered in the suit, and afterwards appearing at the hearing on further directions, ought to stand on the same footing in regard to their costs of these pro- ceedings, as other next of kin who have been made parties. Hutchinson v. Freeman.
Persons who, as members of a very numerous class, were inte- rested in a residuary estate admini- stered in a suit, but who were not parties to the suit, were allowed their costs of proceedings in the Master's office to establish their claims, and of their subsequently intervening in the suit, and apply- ing for such costs, in like manner as other members of the same class who had been made parties. Shuttleworth v. Howarth.
See PATENT.
PRACTICE, 15, 16.
SOLICITOR.
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