and accompanied the grant of the charter of King James, and having read all the documents produced in this cause, to some only of which, though at the expence of so much time, I have but shortly adverted, and having also considered the conduct of the parties under the charter for so long a series of years, I am of opinion that the powers granted to the Society, and the trusts reposed in them, were, in part, of a general and public nature, independent of the private benefit of the companies of London, and were intended by the Crown to benefit Ireland and the city of London, by connecting the city of Londonderry and the town of Coleraine, and a considerable Irish district with the city of London, and to promote the general purposes of the plantation, not only by securing the performance of the conditions imposed on ordinary undertakers, but also by the exercise of powers, and the performance of trusts, not within the scope of those conditions.
The charter of Charles II. expressly recites, that the property not actually divided was retained for the general operation of the plantation; and considering that the powers given to the Irish Society for the general operation of the plantation were of a general and public or political nature, that the property remaining vested in the Society is applicable towards such general operation, and that the companies of London, though interested in any surplus which may remain after the general purposes are answered, are not entitled to control the exercise of the powers which are given for general and public purposes, I do not think that this Court has jurisdiction, upon the application of the companies, to determine upon the propriety of the expenditure which has been made. It must not be inferred that I approve of some of the items of expence which were commented upon in the argument. I express no opinion upon the subject,
thinking that the Society have a discretion, which, though controllable elsewhere, and in another manner, is not to be controlled in this Court upon such a bill as this.
And upon the whole I think that the bill must be dismissed with costs as against the Irish Society, the city of London, and the Attorney-General: without costs as against the other companies, unless it shall appear that any of the companies have opposed the claim of the Plaintiffs.
1. Difficulty in making a decree against parties, depending on the result of accounts, which could not be satisfactorily taken, in con- sequence of the loss of the books of account. Rowley v. Adams.
2. A testator gave large legacies out of his "surplus capital." By the decree special accounts and in- quiries were directed; but the Master was unable to take the ac- counts, by reason of the non- production of the books. He found, however, on the imperfect evidence before him, large sums due to the testator, and large partnership assets, which however varied in each of his three reports: he also found that the executors might, with due diligence, &c., have possessed themselves, out of the partnership property, of suf
ficient to pay the two legacies. The Court, however, was of opi- nion, that there was no reason for thinking that the testator's surplus capital could, if at all, have been realized without putting an end to the business, which the executors, under the circumstances, were not bound to do; that though the executors had not fully or pro- perly performed their duty, still it was more a matter of conjecture than of proof what the assets and liabilities were; that the results were not accurate or approaching to accuracy, and that it had not been satisfactorily made out, either that there were partnership assets, out of which the legacies could have been recovered or secured, nor that the assets were such as to make it impracticable for the executors to obtain payment of the legacies. The Court, in this
state of things, declined to charge the executors. Rowley v. Adams. Page 395
against the tenant for life to re- cover the title deeds, and receive the rents. Denton v. Denton. Page 388
1. A feme covert was entitled to a reversionary interest in a sum of money vested in her husband and another as trustees. By deed, ex- pressed to be made between the tenant for life of the one part, and the trustees (including the husband) of the other part, the tenant for life, who alone executed the deed, declared that the trus- tees should hold the fund on cer- tain modified trusts, whereby the wife's reversionary interest was made subject to her power of ap- pointment by deed or will. wife died, leaving her husband sur- viving, having appointed the re- versionary interest away from her husband. The husband afterwards died, and the reversionary interest subsequently came into posses- sion. The Court considered, that, under the circumstances, the hus- band ought to be deemed to have acquiesced in the arrangement, and accepted the trusts for the benefit of the wife's appointees; and held, that the appointees of the wife were entitled as against the representatives of the hus- band. Inman v. Whitley. 337 2. Trustées, after acquiescence, re- strained from legal proceedings
ADMINISTRATION SUIT.
1. A person at his death was member of a banking company established under the 7 G. 4. c. 46., and sub- ject to its liabilities. After the expiration of three years, a suit was instituted for the administra- tion of his estate, and the conmon decree was made for taking an account of his debts. Persons who were creditors of the banking company at the testator's death claimed before the Master. Held, that their claims did not come within the scope of the decree; secondly, that their claims were barred by the lapse of three years; and, thirdly, that the proper way of bringing their claims before the Court was by petition, and not by exception. Barker v. Buttress.
2. A residuary estate was divisible
amongst several persons. An ac- count was made up, and the adults received their shares. The infants filed a bill for an account against the executors and the other resi- duary legatees. The latter being satisfied, deprecated the proceed- ings. The accounts turned out to be substantially correct: Held, that the costs were payable out of the Plaintiffs' share alone., Mac- kenzie v. Taylor. 467
See BREACH OF TRUST, 2, 3. VENDOR AND Purchaser, 2, 3.
Executors having, for about three years, paid interest on the Plain- tiff's legacies, the Court, at the first hearing, directed accounts, with a view of determining, from the state of the assets, the lia- bility of the executors to pay the legacies. The Court, on further 1. directions, refused to hold, that by payment of interest the exe- cutors had admitted assets, such a conclusion being wholly at vari- ance with all that had been pre- viously done in the suit. Rowley v. Adams. Page 395
Under the 13th amended Order of 1828, the six weeks after the answer is to be deemed sufficient, within which a Plaintiff can ob- tain an order to amend, has re- ference to the answer to the original and not to an amended bill. The Guardians of Wimborne Union v. Masson. 309 2. After a full answer the Plaintiff amended. The Defendant an- swered the amended bill. Six weeks had expired from the time when the first, but not from the time when the second answer was to be deemed sufficient. Held, that any further application for leave to amend must be made to the Court, and not to the Master. The Guardians of Wimborne Union v. Masson. 309
See DEMURREr, 1. MASTER. MISJOINDER, 2.
Where a Plaintiff obtains an injunc- 1. Power to appoint an annuity held, **tion on affidavits, the Defendant
is not wrong in meeting the case by affidavits on a motion to dis- solve, although the point might be determined shortly by filing a
under the circumstances, to au- thorize the appointment of the principal sum invested in the funds for securing it. Samuda v. Lousada. 243
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