1812, advanced upon the same security two other sums of 300l. each, making a total charge of 1,450l. Mullichap became bankrupt, and the mortgaged premises were sold by his assignees, and purchased by Harper for 1,4701.; and he was in possession of the premises, or in receipt of the rents and profits from that time until the expiration of the lease of 1782. In 1822, a new lease for the like term of forty years, at the same yearly rent, was granted by the master of the hospital to Moses Harper, and a fine of fifty guineas was paid by Harper to the hospital, on the renewal. The yearly value of the premises at this time was about 991.

In 1824, an information was filed against the master of the hospital, impeaching the lease of 1822, and other leases which had been granted of different parts of the charity estate, as invalid under the act, 15 Car. 2. Upon the decree at the hearing in 1831, it was referred to the Master, to inquire into the facts relating to these leases. The Master made his report in 1834, which was confirmed, and one or more informations directed to be filed against Harper and others. The present information was filed in the same year. Harper afterwards died, and his representatives were made defendants by supplemental bill. The cause came on for hearing in April 1838, when it was stated, that the defendants had presented a memorial to the Attorney General, and for that reason the cause was ordered to stand over.

The memorial stated the yearly value of the premises at the time of the demise in 1782; that Martha and Moses Harper had lent their money without notice of the act, and on the faith that the custom which prevailed, of granting leases, was duly authorized, and that a term would be granted in the premises equivalent to the money expended in improvements; that the term which had been enjoyed in the premises since the improvements, had not been such as would have induced any person to advance money thereon for building purposes; and the memorialists submitted that they were entitled to a lease of the premises for such a term of years, computed from the time of making the erections and buildings thereon, as would be an equivalent for the benefit derived by the charity,

thereby reserving only the yearly value of the premises, before the improvements by Mullichap were made. The memorialists stated the sums which had been advanced and paid by the Harpers as the purchase-money, and prayed, that it might be referred to the Master, to approve of a proper lease to be granted to them, or their nominee, of the premises; and that further proceedings on this information might be stayed.

The memorial was heard before the Attorney General, in July 1838, when he refused to make the order prayed by the memorial, or any order other than that the defendants should give up the lease, account for the full yearly value of the premises, and pay the costs of the information. This order the counsel for the memorialists declined to take.

The information now came on for hearing. A petition of the relator, that his costs and the costs of the master of the hospital, of the memorial and the petition, might be taxed and ordered to be paid by the representatives of Harper, was heard at the same time.

Mr. Knight Bruce and Mr. Russell appeared in support of the information and the petition.

Mr. Temple and Mr. Torriano appeared for the master of the hospital; and

Sir W. Horne and Mr. Koe, for the representatives of Harper.

The VICE CHANCELLOR.-There is no case made by these defendants for deviating from the terms of the decree, which has been before pronounced in respect to this charity. The lease must be delivered up, and the defendants must account for the yearly value of the premises, from the time of the filing of the information against them; for I am not of necessity to presume, that they had notice of the original information in 1824, to which they were not parties.

With regard to the costs, which are the subject of the petition, I cannot make any order. If the application by way of memorial to the Attorney General, had been presented by the direction or under the sanction of the Court, that might have given me authority to order payment of the costs occasioned by it. The parties liable to incur costs by the step, should

Marriage Settlement-Bonus on a Policy of Life Assurance.

In pursuance of the provisions of a marriage settlement, the husband insured his life in the names of the trustees, in a specified insurance office, for a certain sum, which, upon his death, was to be received and applied by the trustees upon the trusts of the settlement. Additions were made to the policy by the insurance company, as profits or bonus.

The husband became bankrupt, and died uncertificated:-Held, that the assignees of the husband were not entitled to the sums so added to the policy, but the same were to be held by the trustees upon the trusts of the settlement.

A settlement was made previous to the marriage of J. Parkes with Anna Maria, his wife, whereby Parkes covenanted with the trustees, to insure his life in their names, in the Rock Assurance Office, for the sum of 3,000l.; and also, by his bond, to secure to the trustees the transfer by his heirs, executors, or administrators, within three calendar months next after his decease, of a sum of 31. per cent. consolidated bank annuities, to the intent that the same, together with the sum of 3,000l., the amount of such insurance, when received by the trustees, should be held and applied by them upon the trusts therein declared for the benefit of the intended wife and the issue of the marriage.

The insurance was effected according to the terms of the settlement, for the sum of 3,000l., and the bond to the trustees was also given. The marriage took place, and some years afterwards Parkes became

bankrupt, and had not obtained his certificate up to the time of his death.

Between the time of effecting the insurance and the death of Parkes, the Rock Assurance Company made three several septennial divisions of profits among the insured, whereby the sum of 8851. was added to the original amount of the policy. After the death of Parkes, the trustees of the settlement received from the Rock Insurance Office the sum of 3,8851., which they laid out in the purchase of 4,2691. 4s. 6d., 31. per cent. consols. The assignees of Parkes thereupon required the trustees to transfer to them so much of such stock, as arose from the sum of 8851., which had

accrued upon the policy. The trustees now brought their bill to have the rights and interests of the parties in so much of the 4,2691. 4s. 6d. stock, as arose from the sum of 8851., declared by the Court.

Mr. Sharpe appeared for the trustees. Mr. K. Bruce, and Mr. L. Wigram, for the cestuis que trust under the settlement. -The trustees alone could receive the

sum due upon the policy, whether for the original insurance, or the additions made to it. The assignees can have no other claim against them than the bankrupt would have had. He could not have disposed of these accruing profits upon the property held by the trustees for the purposes of the settlement. The claim of the assignees has compelled the trustees to apply to the Court; and the assignees should be ordered to pay the costs.

Mr. Jacob and Mr. Neate, for the assignees of Parkes.-There are no words in the settlement assigning the extra-proceeds of the policy of insurance. The assignees do not claim under the settlement. This point has never been decided, and it was their duty to raise it.

Courtney v. Ferrers (1) was cited in the course of the argument.

The VICE CHANCELLOR.-The settlement recites, that it was agreed that the insurance on the life of the intended husband should be effected in a particular office, viz. the Rock Life Assurance Office; and where a certain office is selected, and a question of this nature arises, it is impor

(1) 1 Sim. 137; s. c. 5 Law J. Rep. Chanc. 107.

tant that the prospectus of the office, at the time of the selection, should be either admitted or proved in the cause. If the parties in this case had meant the husband to take the bonus as separate and distinct from the other interests under the policy, they should have so expressed it. The policy being the subject of settlement, the entire benefit of it must be held to be settled also, and not taken by the husband as something separate from the original sum. The most convenient way of trying the question, would have been upon a bill brought by the assignees. Their claim, however, left the trustees no other alternative than applying to the Court, and I make no order for the costs of the assignees.

V.C. Nov. 27, 28.

}

VIGERS V. LORD AUDLEY.

Privilege of a Peer-Process-Pleading -Answer to original Bill and Bill of Revivor.

A defendant to a bill of revivor and supplement, which prays that he may answer the original bill, to which he was not a party, is bound to answer the original bill, as well as the bill of revivor and supplement; and a peer, in such a case, is entitled to be served with an office copy of the original bill, as well as of the bill of revivor; and process issued for default of appearance without serving him with such a copy, is irregular.

The original bill in this cause was filed by the plaintiff against the late Lord Audley, who appeared thereto, and died before answer. A bill of revivor and supplement was then filed against the present defendant, as heir-at-law and devisee of his ancestor. The bill of revivor and supplement contained a prayer, "that the said Lord Audley may, in and by his answer to this suit, also answer the several matters stated and charged in and by the said original bill." The prayer of process was, that the defendant might be ordered to appear, and shew cause, if he could, why the suit and proceedings should not be revived against him. The bill of revivor was amended in April 1838, and a copy of the amended bill, with the letter missive, was served upon the defendant. On the 8th of August 1838, the plaintiff obtained an order nisi for the issuing of a commission

of sequestration against the defendant, until he should appear to the plaintiff's bill.

Mr. Jacob and Mr. Toller now moved, on behalf of Lord Audley, that the order of the 8th of August might be discharged. Several grounds of irregularity were alleged, but that to which the chief argument was directed, and upon which the Court proceeded, was, that Lord Audley had not been served with an office copy of the original bill, to which his privilege as a peer entitled him.

Mr. Knight Bruce, Mr. Wakefield, and Mr. Rogers, against the motion. This order was made in default of appearance. The want of service of a copy of the original bill, is no ground for refusing to appear. If, after appearance, Lord Audley were pressed to answer, it might be a pretence to ask for the interposition of the Court. In this case, no answer to the ori

ginal bill is required. The prayer of process is that part of the bill to which it is material to look; and there the defendant is required to appear only to the bill of revivor and supplement. It is only of the particular pleading then actually in progress, that a peer is entitled to a copy; and not of other pleadings or instruments connected with, or mentioned in that particular pleading. If the bill against. a peer mentions some bill or answer pending or existing in another suit or under another jurisdiction, it does not follow that the defendant must be served with a copy of such other bill or answer, as well as with the copy of the bill then brought. Lord Audley is not a defendant to the original bill, and he cannot appear to or answer it. The prayer that he may answer, is merely nugatory, for there can be no exceptions if he does not. There are only two courses by which a defendant to a bill of revivor can be compelled to answer the original bill: first, by making the original bill an integral part of the bill of revivor ; and secondly, by obtaining an order that the defendant shall answer both bills. This is the common course, and not having been taken here, Lord Audley is under no obligation to answer.

November 28.—The VICE Chancellor. -I have been attended by Mr. Turton and another gentleman from the Six Clerks' Office, and I am informed by them, that

there is no such order, and that there never has been any such order as Mr. Wakefield adverted to in his argument on this case. If, after an original bill is filed, to which the defendant has appeared and not answered, a bill of revivor and supplement be filed against a person representing him, the subpoena is to appear to that bill; but if it prays, as it generally does, that the defendant may answer that bill and the original bill, he is bound to do so, and in that case the answer is intituled "The answer of the defendant to the bill of revivor and supplement of complainant, complainant, and also his answer to the original bill of complainant." If the new bill should be merely a bill of revivor, asking that the defendant may answer to the original bill, and not to the bill of revivor, then an attachment would issue against the defendant, in case he did not answer the original bill.

In the present case, the process has been wrong. As Lord Audley would have had to answer the original bill, as well as the bill of revivor and supplement, the office copy of the original bill, as well as of the bill of revivor and supplement, should have been served upon him. The order nisi must be discharged.

the

The common injunction had been originally obtained in this case, and upon coming in of the answers, the injunction had been continued upon the merits. On the 3rd of November 1838, application was made, on the part of five of the defendants, to dismiss the bill for want of prosecution; and upon that occasion an order was made, with the concurrence of the five defendants, who were the parties to the application, that the plaintiff should have liberty to amend the bill within three weeks, not requiring any further answer from those defendants. The order so made was inefficacious, inasmuch as it gave the

plaintiff no right to amend as against the other defendants.

Mr. Jacob and Mr. Stuart now moved, on behalf of the plaintiff, that he might be at liberty to amend his bill without prejudice to the injunction.

Mr. K. Bruce objected, that the motion was irregular, and contended, that the mere amendment of the bill did not affect an injunction granted or continued upon the merits. The direction to guard the injunction from prejudice by the amendment, was therefore unnecessary; and the motion was consequently reduced to a mere application for liberty to amend, which must be made to the Master.

Mr. Jacob, in reply.-The case of Rees v. Edwardes (1) is similar to the present. The order here asked, that the amendment shall be without prejudice, is a special order, which the Master could not make, and which justifies the application to the Court. It is said, that the amendment does not prejudice the injunction. This is not so clear. This term has been considered a necessary or desirable part of the order-Pratt v. Archer (2). If the Court should refuse the order now sought, it will in effect decide, for the first time, that the words, "without prejudice," are not of any

use.

The VICE CHANCELLOR.-I understand the rule of the Court to be, that where the injunction is continued upon the merits, there, upon the amendment of the bill, the injunction is not dissolved as of course. The matter introduced by amendment may possibly form the ground of an application to dissolve the injunction; but that is a different question. In this case, the words which I am asked to add to the order, would be a mere superfluity; and therefore, though I agree in the principle laid down by the Master of the Rolls in Rees v. Edwardes, yet I do not consider a direction, which is superfluous, can constitute a special ground for the order. As the motion, however, was made for the purpose of carrying out the order of the 3rd of November, I give the costs of the motion only to the defendants, who were not parties to that order.

(1) 1 Keen, 465; s. c. 6 Law J. Rep. (N.s.) Chanc. 151.

(2) 1 Sim, & Stu. 453.

Practice. Co-defendants SolicitorInjunction-Reference.

Injunction granted on application of a codefendant. A suit was instituted by parties beneficially interested under a will, for the purpose of having the will established, and the trusts of it performed. The heir-at-law of the testator, who was a defendant in the suit, but who was stated to be acting in concert with the plaintiffs, brought several actions of ejectment, for the purpose of recovering possession of part of the devised estate, and contended, that the will was not properly executed to pass freehold estates; and these actions were conducted on his behalf by the same person who was acting in the suit as the solicitor of the plaintiffs, and also of the heir-atlaw. On the petition of the trustee under the will, who was also a defendant, the Court referred it to the Master, to inquire whether any and what proceedings ought to be taken to defend the actions at law, or either of them, or to establish the will; and also restrained the solicitor of the plaintiffs from taking any proceedings at law against the parties against whom the several actions were brought.

The bill was filed in August 1837, by parties beneficially interested under a will, some of whom were infants; and it prayed that the will might be established, and the trusts of it carried into execution. The testator died in 1824, and the will had been acquiesced in by all parties for several years; but doubts having been afterwards entertained respecting its validity, the present suit was instituted against the surviving trustee, and the representatives of a deceased trustee, and against the only son and heir-at-law of the testator.

In January 1838, the heir-at-law brought an action of ejectment against the tenants of part of his father's freehold estates; and on the trial of this action in June 1838, the jury gave a verdict in his favour.

The attorney who acted for him in this action of ejectment, was the same gentleman who was employed as his solicitor, and also as the solicitor of the plaintiffs, in this suit. The heir-at-law had commenced an action of detinue against the trustee, to NEW SERIES, VIII.-CHANC.

recover the title-deeds of the estates, which were the subject of the first action of ejectment; and he had also commenced actions of ejectment against the tenants of the other parts of his father's freehold estates, in all which actions the solicitor of himself and the plaintiffs in the suit was acting as his attorney. The defendant Carpenter, who was the surviving trustee under the will, presented a petition to the Master of the Rolls, praying that the Court would direct whether he ought to take any proceedings relating to the several actions, or defend them; and that the solicitor of the heirat-law might be restrained from taking any further proceedings in those actions.

Mr. Pemberton and Mr. Simons supported the petition; and—

Mr. Kindersley opposed it, on behalf of the heir-at-law.

Mr. Hull appeared for the plaintiff Edgecumbe.

The MASTER OF THE ROLLS.-This is a most extraordinary proceeding. The plaintiffs file a bill for the purpose of establishing certain trusts. One of the defendants is heir-at-law. He, not long after the bill is filed, brings an action of ejectment to recover possession of the devised estate. He employs the solicitor of the plaintiffs, who seek, by their bill, to establish the will; and while these proceedings are going on, the defendant, who is the trustee, applies to have the direction of the Court as to what he is to do. The testator having died in 1824, and the will having been undisturbed until the filing of this bill, it is perfectly clear that the trustee has a right to the protection and direction of the Court; and I have, therefore, no hesitation in referring it to the Master, to inquire whether any and what proceedings ought to be taken by the trustee, either for defending the actions of ejectment, or establishing the will.

Then, the question which remains is, whether I shall stop any of the proceedings in the ejectments in the meantime; and the only difficulty I feel is, that this application is made by one defendant against another. This case has this peculiarity in it, to which I have referred,--namely, that the plaintiffs are prosecuting this suit by the solicitor who is the attorney in the

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