the Plaintiff has taken is an evasion of the General Orders, and I should, on that ground, have discharged the order, if the notice of motion had been to discharge it generally, yet as he is within the letter of those Orders, I do not think that his course has been, strictly speaking, irregular, and, therefore, as the motion stands at present, I must refuse it, though if the words "for irregularity" had been omitted, I should, for the reason I have stated, have discharged the order.
In consequence of this intimation, it was arranged by consent, that the notice of motion should be considered as amended, and the order was discharged.
II. In opposition to Answer.
1. An order made under 5 Vict. c. 5. s. 4.
to restrain the transfer of stock, continues in
force, until discharged, after a bill has been
filed for the same purpose: and on a motion
being afterwards made to discharge it, the
Court will allow affidavits to be read as well
in opposition to the answer, if then filed, as
in support of it. In re Marquis of Hertford.
Mere neglect of duty in an executor, as,
for instance, the omission to invest balances
pursuant to a direction in the will, if unac- 2. Where a Plaintiff moves upon the an-
companied by fraud, is not such misconduct swer, he is not allowed to verify by affidavit
as to disentitle him to the general costs of a any allegation, in the bill, of a fact connect-
suit for the administration of the estate, al-ed with his title, though such allegation be
though it may subject him to the costs of so
much of the suit as was occasioned by such
neglect. Heighington v. Grant. 600
Where an act of parliament required that
to all bills which should be filed under its
neither admitted nor denied by the answer.
Where the bill set forth a letter as contain-
ing an admission of the Plaintiff's title, and
which it charged to have been written by the
Defendant, but the Defendant, who was very
old and nearly blind, stated that such a letter
might have been written by somebody about
him, but that to the best of his recollection
and belief he had never written such a let-
ter: Held, on a motion for production of do-
cuments, that the letter, with an affidavit of.
its being in the Defendant's handwriting, |
could not be admitted as evidence of the
Plaintiff's title for the purpose of the motion.
Edwards v. Jones.
501
See GENERAL ORDERS.
PRODUCTION OF DOCUMENTS.
ALIENATION (RESTRAINT OF.)
See GENERAL ORDERS.
PRACTICE.
II. Of Patent Roll.
See PATENT.
charged his real estates in aid of his personal
estate with the payment of his debts, other
than mortgage debts, and, subject thereto,
devised them in strict settlement.
Held, (reversing the judgment below,) that
the annuities were to be treated as securities
for the repayment of loans, and consequently
that the value of them (there being no per-
sonal assets for their payment) was, by virtue
of the will, a charge upon the corpus of the
real estates, and that the tenant for life of the
real estates, as between him and the remain-
der-man, was only liable to keep down the
interest on such value. Bulwer v. Astley.
2. Upon a devise of real estates in trust,
to receive the rents, and thereout to pay to
the testator's widow an annuity, and “from
and immediately after" her death to convey
the estates to his three sisters. Held, (rever-
sing the decision below), that the annuity was
a charge only on the rents which accrued du-
ring the life of the widow, and not on the cor-
pus of the estates. Foster v. Smith. 629
3. Gift of an annuity of 3001. to the testa-
tor's three daughters and the survivors and
survivor, with a gift over, to the last survivor,
of the sum set apart to answer the annuity.
After the death of one of the daughters, the
fund set apart was lost by the misconduct of
the trustee, and the annuity remained unpaid
for the rest of the lives of the other two: but
after their deaths a sum of money, forming
part of the residue, but of less amount than
the original fund, becoming available, Held,
that such sum was to be apportioned rateably
between the arrears due to the two surviving
daughters respectively at the time of the
death of that one of them who died first, and
the sum originally set apart, and which be-
longed to the last survivor. Innes v. Mitch-
ell.
1. A., by several deeds of the same date,
granted, for valuable considerations, several
annuities or rent-charges for lives, to be issu-
ing and payable out of certain real estates, of
which he was the owner, reserving to himself
and his heirs, in each case, a power to repur-
chase the annuity, on payment, at three
months' notice, of the original price, together
with a half-yearly payment of it in advance.
Each annuity was secured by the personal
covenant of the grantor, by clauses of dis-
tress and entry in case it should be a certain
number of days in arrear, and by a warrant
of attorney to confess judgment against the
grantor for double the original price. And by
another deed of even date which recited the
annuities as being respectively subject to a
"proviso for redemption or repurchase," the
real estates on which they were charged were
conveyed to trustees for a term of years, with 1. Gift by will of leasehold and other per-
a power of sale to secure the regular pay-sonal estate to trustees in trust to pay the
ment of them, and, subject thereto, on trust rents, &c. to such person or persons as a mar-
for the grantor. The grantor by his will ried woman should, by writing under her
See PLEADING, 1.
SUPPLEMENTAL ANSWER.
hand from time to time, but not by way of
anticipation, appoint, and, in default of such
appointment, or so far as the same should not
extend, into her proper hands for her sole and
separate use, with a direction that her re-
ceipts, notwithstanding coverture, should be
good discharges, and, after her death, in trust
for her children. Held, upon the particular
terms of the gift, that the restraint on antici-
pation applied to an assignment, by the mar-
ried woman, of her separate estate as well as
to an appointment in execution of her power,
notwithstanding the will did not provide that
her receipts alone should be good discharges.
Brown v. Bamford.
2. A court of equity will give effect during
coverture to a clause in restraint of aliena-
tion, annexed to a gift to a married woman
for her separate use, whether the subject of
the gift be real or personal estate, and whe-
ther it be in fee or only for life. Baggett v.
Meux.
627
1. Semble, where a decision of the Court
of Review is brought under the review of the
Lord Chancellor by a simple appeal petition,
without a special case, no appeal lies from
his decision to the House of Lords.
Where the Court of Review had commit-
ted a party for a contempt, and had afterwards
restrained him by injunction from prosecuting
an action for false imprisonment against the
Plaintiff, who obtained the order of commit-
ment, the Lord Chancellor, upon both the or-
ders being brought under his review by a sim-
ple appeal petition, without a special case,
discharged the order for the injunction, on the
ground that doubts might be entertained whe-
ther the form of the proceeding before him
admitted of an appeal from his decision to the
House of Lords, whereas a writ of error
would lie from that of the court of law. Ex
parte Van Sandau.
2. Where an order of this Court made in
pursuance of an Order of the House of
Lords, reversing the decree below and dis-
missing the bill with costs, had omitted to di-
rect repayment of a sum of money which
had been paid by the Defendants to the
Plaintiff under the decree pending the ap-
peal; the Court, on the petition of the De-
fendants, made a further substantive order for
such repayment. Thorpe v. Mattingley.
443
See COURT OF Review.
IMPERTINENCE.
REHEARING.
2. A deposit of a policy of assurance by
way of security for a debt, made previously
to the commission of an act of bankruptcy by
the depositor, and notified to the insurance
company, by the party with whom the deposit
was made, previously to the issuing of the
fiat, though subsequently to the act of bank-
ruptcy: Held valid as against the assignees
under the 2 & 3 Vict. c 29., it not appearing
that, at the time the notice was given to the
company, the party giving it was aware of an
act of bankruptcy having been committed.
In re Styan.
3. An innkeeper, who was a widow, having
died intestate, two of her children, a son and
daughter, took possession of her furniture and
stock in trade, and carried on her business in
their own names for two years after her
death, during which time they paid her fune-
ral expenses and some of her debts, but with-
out taking out administration to her estate,
and, at the end of that time, became bank-
rupts, the daughter having a few months pre-
viously retired from the business, and sold her
share of it to the son. Another of the chil-
dren then took out administration to the in-
testate, and claimed that part of her furniture
and stock in trade which still remained in
specie; but, Held that it belonged to the as-
signees, as having been in the order and dis.
position of the son at the time of his bank-
ruptcy. In re Thomas.
159
4. A customer of a banking firm, whose
practice it was to receive deposits, at their
banking-house, of boxes of securities belong-
ing to their customers, for safe custody, lent
part of the securities contained in his box to
the firm, upon an undertaking to replace
them in three months, or sooner if required;
and he afterwards lent other part of such se-
curities to J. W., one of the partners in the
firm, on his own separate account, other se-
curities being on both occasions deposited by
the respective borrowers, according to agree-
ment, in pledge for those which were borrow-
ed. After the expiration of three months
from the time of the first loan the firm, with
the consent of the customer, deposited other
securities in the box in exchange for those
first pledged, and afterwards became bank-
rupt, when it appeared that the customer had
been regularly credited in the books of the
firm with interest on all the securities borrow-
ed, but that J. W. had, without the knowledge
either of his co-partners or the customer, ab-
stracted the securities pledged by himself
upon the second loan, and had applied the
proceeds to his own individual use.
Held, 1st, that the value of the securities
lent to the firm was not a contingent debt
within the fifty-sixth section of 6 G. 4., and
that, as there had been no demand for their
replacement before the bankruptcy, the cus-
tomer had no proveable debt in respect there-
of, either against the joint estate or any of
the separate estates.
2dly, that the firm was not responsible for
the abstraction by J. W. of the securities
pledged upon the second loan, although the
key of the box, as well as the box itself, was
left in the custody of the firm, inasmuch as
it did not appear that the firm had any au-
thority to open the box or to examine its con-
tents and consequently that the customer
had no right of proof, in respect of the second
loan, against the joint estate, but only against
the separate estate of J. W.
And, semble, even if the firm had been
chargeable for the abstraction on the ground
of negligence, the claim would have been
only a claim for unliquidated damages, and
therefore not proveable against the joint es-
tate. Ex parte Eyre, in re Wright. 227
5. If a bankrupt has failed to commence
any action, suit, or other proceeding to annul
the fiat within the time limited for that pur-
pose by the twenty-fourth section of 5 & 6
Vict. c. 122. the Court of Review has no dis-
cretionary jurisdiction to entertain a petition,
presented after that time has expired, to annul
the fiat, however satisfactorily the delay may
be accounted for. In re Thorold.
239
CHARGE OF DEBTS.
See CONSTRUCTION, IV. 2.
1. A testator in disposing of " the property
of which he should be possessed at his death
after payment of debts and expences," made
several specific and pecuniary bequests, and
then directed his executors, amongst other
things, to purchase and prepare for the ulti-
mate deposit of his own body, and for the re-
moval and deposit of the remains of his
parents and sister then lying interred in a
certain churchyard, a certain piece of uncon-
secrated ground then belonging to another
person, on which they were "to build a suit-
able, handsome, and durable monument, the
expense to be met and provided from the sur-
plus property that should remain after pay-
ment of the above legacies and bequests, &c."
After which he gave "the remainder of his
property to the government of Bengal, to be
applied to charitable, beneficial, and public
works, at and in the city of Dacca in Bengal,
for the exclusive benefit of the native inhabi-
tants, in such manner as they and the govern-
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