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1845, a replication only, in the old form, has been filed, a replication in the new form mentioned in Order 93. may be regularly filed, for the purpose of putting the cause at issue; but secus, where a subpoena to rejoin has been served prior to these New Orders. Wheatley v. Wheatley. Page 577 7. The words "last of the answers,"

in the 114th Order of May 1845, means the last answer of any one of several Defendants, so that the right of one Defendant to move to dismiss for want of prosecution is not delayed by his Co-defendant's neglect to answer. v. Hayter.

Dalton 586

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ESTATE FOR LIFE. Devise to A. for life, with remainder to her first child and his or her heirs; but if such child should die under the age of twenty-one years without leaving issue, then in like manner to the second, third, and every other child of A., regard being had to their seniority, and to their respective deaths under age without leaving lawful issue; for, in case of issue, it was the testator's will that they should inherit the estate, and he thereby gave the same to him or her, and to his or her heirs accordingly. But in case A. died without leaving issue of her body, or, having issue, such issue should die under the age of twenty-one without leaving issue, then he devised the estate over. A. never had any issue: Held, that she took a life estate only. Goymour v. Pigge. Page 475

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3. Though it is the more usual and
regular course to file articles or
objections to the credit of a wit-
ness, previous to applying for
leave to exhibit interrogatories for
the examination of witnesses in
support of such articles, still a
simultaneous motion for leave to
file articles, and exhibit the inter-
rogatories, is not irregular. Harvey
v. Mount.
Page 517
4. Previous to a cause being at issue,
the Plaintiff's solicitor prevailed
on A. B. to make a voluntary affi-
davit, not required by the pro-
ceedings in the cause. A. B. was

afterwards examined as a witness
on behalf of the Defendant, and
was cross-examined by the Plain-
tiff; her affidavit and depositions
were contradictory, but the affi-
davit was not produced to her at
the time of her examination. Upon
an application by the Plaintiff to
file articles and examine witnesses
to discredit A. B., Held, that
though the conduct of the Plain-
tiff's solicitor had been highly im-
proper, still the motion ought to be
granted, leave being given to the
Defendant to examine witnesses
to support her credit, and as to
the circumstances under which
the affidavit had been sworn.
Ibid.

5. Allegations and admissions, used
for the purpose of defence against
attempted extortion under the
form of legal proceedings or for
the purpose of obtaining justice
irregularly when regularly it could
not be had, ought not to be used

as evidence of the rights of the
parties. Held, consequently, that
allegations and admissions made
in the course of arbitrary pro-
ceedings against parties in the
Star Chamber and in a treaty for
compromise which arose out of
the sentence, and in the proceed-
ings which took place before the
House of Commons in an attempt
to obtain relief from the oppres-
sion of that Court, could not in
any way influence the judgment
of this Court. The Skinners'
Company v. The Irish Society.

See DEPOSITIONS.
WILL, 5.

EXCEPTIONS.

See INJUNCTION, S.

EXECUTORS.

Page 593

See ADMISSION OF ASSETS.
BREACH OF Trust, 1. 4. 6. 8.

EXECUTORS AND ADMINI-
STRATORS.

The ultimate trust in a marriage
settlement of a fund belonging to
the wife, was to her executors or
administrators. Held, first, that
the surviving husband, who was
her administrator and not her
next of kin was entitled; and, se-
condly, that if by those words her
next of kin were intended, then
that the next of kin at the death
of the wife, and not of the hus-

band

band (who was tenant for life), were entitled. Allen v. Thorp.

pauper not being specifically denied. Mather v. Shelmerdine.

Page 72

Page 267

EXONERATION.

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FORMA PAUPERIS.

Pauper order discharged, the particular circumstances, tending to shew that the Plaintiff was not a

FRAUD.

162

1. This Court has concurrent jurisdiction with courts of law in cases of fraud, but there are courses of conduct which this Court construes as fraudulent, but which courts of law would not notice. Clarke v. Manning. 2. Upon an injunction to restrain an action at law, on the ground both of legal and equitable fraud, the court, admitting its jurisdiction to determine the legal fraud, permitted the action to proceed, in order to determine the question of legal fraud, and restrained execution only, with liberty to apply. The jury having found that there was no legal fraud, this Court afterwards entered into the consideration of the question of equitable fraud, and finding none to exist, permitted execution to be taken out. Clarke v. Manning.

Ibid.

See VENDOR And Purchaser, 3.

FURTHER DIRECTIONS. A case of breach of trust was alleged on the pleadings against trustees and executors for not having sold an estate, but at the first hearing the common accounts only were directed. Held, on further directions, that the Defendants could not be then charged U u 4 with

GUARDIAN, 4.

with the breach of trust, and that | 28th Order of October 1842.- See
enquiries could not be then directed
with that object. Green v. Badley.
Page 274
See ADMISSION OF ASSETS.

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16th Order of May 1845, art. 25.—

See INJUNCTION, 8.

28th Order of May 1845.– Sce

COPY BILL, 1, 2.

-

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21st Order of December 1833.- See 1. It is not the practice of the Court
SERJEANT-AT-ARMS.

5th Order of May 1839.- See PRE-
LIMINARY ENQUIRIES, 1. 3, 4.
17th Order of August 1841.-See
INTERROGATORIES, 1, 2.

32d Order of August 1841.- See
PARTIES, 2.

34th Order of August 1841.- See

DEMURRER, 2, 3, 4.

35th Order of August 1841.- See
PLEA, 1.

--

39th Order of August 1841. See
COSTS, 7.

1st Order of April 1842.- See PRO
CONFESSO.

to appoint a person resident abroad
to be guardian ad litem. Lady
Hartland v. Atcherley. Page 53
2. On an application, by motion, for
the appointment, without a com-
mission, of a guardian ad litem to
an infant abroad an affidavit should
be produced of the infancy of the
party. Lingren v. Lingren. Dick
v. Lacy.
3. On the application of the Plain-

66

tiffs, a six clerk was appointed
guardian ad litem for a Defendant,
who was stated to be an infant,
but was in reality of full age. A

decree

decree was made, and the accounts
taken on that footing. Held, that
the proceedings were not binding
on him, and the Plaintiffs were
ordered to pay the costs of the six
clerk. Green v. Badley.

Page 271
4. The Solicitor of the Suitor's
Fund appointed, under the 28th
Order of the 26th of October 1842,
guardian ad litem of a lunatic
Defendant not so found by inqui-
sition. M'Keverakin v. Cort. 347
5. Whether a guardian ad litem can
be assigned to an infant resident
within the jurisdiction, without
bringing him into Court, or by
means of a commission, quære.
Nixon v. Few.
349
6. On an application to appoint a
solicitor guardian ad litem, to a
Defendant of unsound mind, not
so found by inquisition, the Court
required to be first satisfied that
no relative would undertake the
defence. Moore v. Platel.
See LUNATIC.

583

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