give leave to the executors to apply for a transfer of the fund, from the account which is too general, to a particular account, so that they may have the benefit of this very useful act of parliament.
In proceeding under this Act, I conceive an executor must take on himself the responsibility of saying that the fund belongs to those to whose particular account he desires the fund to be carried, but that he declines to take on himself the responsibility of ascertaining the persons or making the payment. It is very important that this distinction should be generally known.
Mr. Shapter said he would now consent to the transfer.
The MASTER of the ROLLS. You must make a distinct application for that purpose.
HE following rules of practice have several times been stated by the Master of the Rolls on this and other applications to discharge a Receiver and vacate his recognizances. (a) It is convenient that they should be generally known.
First. If the order directs the payment of the balance into Court, the same order may direct the recognizance to be vacated upon payment of such balance into Court, such payment being shewn by the certificate of the Accountant-General.
Rules of practice upon ap
plications to discharge Re- vacate their recognizances. If the balance is to Court, the be paid into same order may direct the recognizances to be vacated;
ceivers and
but, if the balance is to be paid in any other mode, a second appli
cation be
comes neces
Second. But if the payment is directed to be made to a person, or in any other mode than into Court, then, after the payment has been made, it is to be proved, sary. and a second petition is necessary for the purpose of obtaining an order to vacate the recognizances upon the ' proof being given. On the second occasion, however, the matter need not be mentioned in court, but the petition being left at the Secretary's office, together with proper evidence of the payment of the balance, the order will be made without further attendance.
(a) See 2 Daniell's Pr. 1629. (2d ed.)
ABATEMENT.
See PARTIES, 1. 4.
1. By the settlement made on the marriage of an English lady with a foreigner, her Bank annuities were settled in trust for her, her husband, and their children; and her real estates were directed to be sold and the produce held on similar trusts. And it was agreed between all the parties, and the husband covenanted, that in case any real or personal estate should vest in the wife, or in him in her right, he, as far as he lawfully could, would, either alone or in concurrence with his wife, settle the same upon the trusts, and sub- ject to the powers, &c. therein expressed concerning the Bank annuities. Real estates descended on the wife. The husband and some of the children were aliens. Held, that the lands descended were bound by the covenant, and Ss 3
that they ought to be sold and | 3. The 66th Order of May 1845 is
the produce invested on the same trusts as the Bank annuities. Mas- ter v. De Croismar. Page 184 2. A patentee applied to the Court of Chancery to stay all proceed- ings on a scire facias to repeal the patent, or that a nolle prosequi might be entered, on the ground, that the prosecutor was an alien: Held, that the Court had no au- thority to interfere in the matter. The Queen v. Prosser. 306 3. An illegal monopoly is a public grievance, and the Crown having been informed of such a grievance, and having the power and duty to remove it, if it be such, ought not to be disabled from directing the necessary proceedings to ascertain the truth, because the information was given by an alien.
1. A Defendant put in an insufficient answer, and the Plaintiff obtained an order of course to amend, and that the Defendant might answer the amendments and ex- ceptions together. No amend- ment was made within fourteen days. Held, that a second order to amend could not be obtained, ex parte. Dolly v. Challin. 2. Under all orders to amend a Plaintiff must amend within four- teen days, as where he obtains leave to amend on the allowance of a demurrer, and no time is then limited. Semble. Armitstead v. Durham.
applicable to bills of discovery. Peile v. Stoddart. Page 591 A Plaintiff took exceptions, which he gave notice of abandoning: Held that he had thereby short- ened the time allowed for amend- ing as of course. Ibid. 5. A Plaintiff, after the time allowed, obtained an order of course to amend. The order was discharged with costs, and the amended bill was ordered to be taken off the file. Ibid. Pending the usual reference to enquire which of two suits is most beneficial, it is irregular to obtain an order of course to amend. Fletcher v. Moore. 617
1. The first application for time to answer is not of course, but must (unless the facts be admitted by the Plaintiff) be supported by affidavit shewing sufficient cause and due diligence. Brown v. Lee. 162 2. A Defendant submitting to an- swer, cannot avail himself of the 38th Order of August 1841, and decline to answer part of the bill, on the ground that the bill is wholly demurrable. Fisher v.
Price. 194 See PRODUction of DOCUMENTS, 7.
APPROPRIATION.
See COSTS, 10.
« ForrigeFortsett » |