1843. Nov. 9, 10. Jan. 27. Property was THE DAVIS v. PROUT. HE testator, by his will dated in 1819, devised, &c. some real and personal estate to trustees, upon trust "for the sole and absolute use of his daughter Mary Ann Prout," in case she should attain twenty-one, with maintenance in the mean time, and with a gift over female infant. in case she should die before she attained twenty-one. She after 66 and absolute use" of a wards mar ried under age, and a settlement was made giving half to the wife for her separate use, and the other half to the husband. A bill was filed by the husband and wife, after the latter had come of age, against the trustees, seek The testator died shortly after. In 1839 the Plaintiff Mr. Davis married Mary Ann Prout, then a minor, and a settlement was thereupon made, whereby they covenanted to convey the property of Mary Ann Prout to trustees, upon trust, as to one moiety, to the separate use of Mary Ann for life, and as to the other half upon trust for Davis for life, with certain limitations to the children of the marriage. Mary Ann Davis attained twenty-one in 1840, and in ing to charge 1841 this bill was filed by Davis, his wife, and the only child of the marriage, to make the trustees responsible for certain alleged breaches of trust. them with a breach of trust. The Court thought the frame of the suit improper, but gave leave to amend; and the wife being, by amend Mr. Pemberton Leigh and Mr. Rogers, for the Plain tiffs. Mr. Turner and Mr. Kinglake, and Mr. Kindersley ment, made to and Mr. Tripp, for the Defendants, objected that no relief could be had upon the record as it was now sue by her next friend, a decree was made. After pub framed, lication, a bill filed by husband and wife was amended by making the wife sue by her next friend. Held, that the evidence was still receivable. framed, for the property was held for the separate use of the wife, and therefore a suit in which the husband joined as co-plaintiff could not be supported ; Wake v. Parker (a), Reeve v. Dalby. (b) Here the property was given by the will "for the sole and absolute use" of Mrs. Davis, and this was equivalent to a gift for her separate use; Ex parte Ray (c), v. Lyne (d), 2 Roper on Husband and Wife, 164. That if there existed any question on the point, the interests of the husband and wife would be so conflicting, that they could not sue together as co-plaintiffs. · That the settlement having been made during the infancy of the wife, was not binding on her; Simson v. Jones (e), Johnson v. Johnson (g); and that therefore the whole property was still her separate estate. Mr. Pemberton Leigh and Mr. Rogers, contrà. The objection not having been taken by the answer, it is incompetent for the Defendants to insist on it at the present stage of the cause. Such technical objections may be valid if taken by demurrer, and yet the Court will not listen to them at the hearing, as in the instance of an objection for multifariousness. (h) In this case there is no misjoinder; for both the husband and wife have an independent interest in the fund, and a common interest to make the trustees responsible. When the fund has been recovered by this suit, the Court will protect the interest of the wife. If the property were settled to the separate use of the wife by the (a) 2 Keen, 59. (d) Younge, 562. (e) 2 Russ. & M. 374. (g) 1 Keen, 649. will (h) See Wynne v. Callander, 1 Russ. 293.; Greenwood v. Churchill, Myl. & K. 559. 1843. DAVIS บ. PROUT. 1843. DAVIS . v. PROUT. will so as to exclude the husband, still, by the settlement, the husband has acquired an interest, and the wife has adopted that settlement after attaining twentyone, which she had the power of doing, she being considered a feme sole, as to her separate estate. The MASTER of the ROLLS. This is not the first time that this point has been raised before me. There can, however, be no doubt of the rule as now established. The difficulty in a suit constituted like the present is not so much in protecting the wife's interest against her husband, but because in such a record the suit is considered as that of the husband alone; and if this bill were now dismissed on the merits, the wife might the next day file another bill for the very same object, and would not be bound by the former decree; this is the ground on which the present objection is to be decided. Though I have some reason to think that the object of the Defendants is to delay, I cannot refuse to listen to their objection. There must be leave given to the Plaintiffs to amend and set the record right. 1844. Jan. 17. Feb. 13. The Plaintiffs amended their bill by adding Mr. Jackness as the next friend of the wife; but the husband was still continued as a co-plaintiff. The cause again came on for hearing. It was again objected, first, that from the frame of the record no decree could be made. The following cases were cited in opposition to this objection: Platel v. Craddock (a), where a bill being filed by husband and wife (a) C. P. Cooper, 469. 481. wife in respect of a trust fund limited to the wife for her separate use, remainder to the husband for life, liberty was given to amend by adding a next friend to the wife, and a decree was made; and England v. Downs. (a) Secondly, it was objected that an alteration having taken place in the title of the suit, the evidence taken could not be now read; Bailey v. Dennett. (b) The MASTER of the ROLLS, after some hesitation, overruled the objections, admitted the evidence, and made a decree. (a) 1 Beavan, 96. (b) 3 You. & C. 461. And see Milligan v. Mitchell, 1 Myl. § Cr. 443. and 3 Myl. & Cr. 72.; 1844. DAVIS v. PROUT. THIS GREENWOOD v. ROTHWELL. (c) HIS was a motion for the production of deeds and documents relating to some property which was the subject of the suit. John Mitchell, having mortgaged the property for 1000 years for securing 400l. and interest, by his will, dated in 1811, directed all his debts, funeral and testamentary expenses and legacies, to be paid out of his real and personal estate, and he devised unto Joseph Greenwood and J. Northrop, all his hereditaments, &c. for the term of 1000 years, upon trust to keep the premises in repair, to keep down the interest upon the mortgage, (c) Ex relatione. and March 14. Order for the production of title deeds of a mortgagee, who also claimed to be a purchaser of the equity of redemption, refused. 1844. GREENWOOD v. ROTHWELL. and to apply the residue for the maintenance of Ann Bentley for life; and subject thereto, in effect, he devised the property in question unto Jonas Greenwood for life, and after his decease, to his issue as purchasers (a), and he appointed Joseph Greenwood and Northrop his executors, who proved his will. By an indenture dated the 5th of March, 1812, and made between the mortgagees of the first part, Joseph Greenwood and Northrop of the second part, and Mann of the third part, after reciting the mortgage, and the will of the testator, and that Joseph Greenwood and Northrop had requested Mann to lend them 550l., to enable them to pay off the sum of 4067. due upon the mortgage; and also to enable them to discharge sundry other just debts, amounting together to the sum of 1447., which remained owing to other creditors of the testator, it was witnessed, that, in consideration of 4061. paid to the mortgagees, and of 1447. paid to Joseph Greenwood and Northrop by Mann, they, the mortgagees, assigned, and Joseph Greenwood and Northrop assigned and confirmed, the property in question to Mann, for the residue of the several terms of years therein, discharged from the proviso for redemption contained in the mortgage, but subject to redemption on payment to Mann by Joseph Greenwood and Northrop of the sum of 550l. with interest. By deeds dated in March, 1823, after reciting the mortgage to Mann, the will of the testator, and that Jonas Greenwood had agreed to sell the premises to Abraham Tempest for the sum of 400l., it was witnessed, in consideration of 400l. paid to Mann in discharge of his mortgage, and for the nominal consideration therein mentioned, the property was conveyed by Jonas Green (a) 6 Beavan, 492. wood, |