Webb, W. 68, 288 Welch, W. 488 Wheaton, J. 211, 327 Wilkes, S. 548 Williams, J. 32, 428 Wilson, T. 368 Winter, J. 488 Winteringham, J. 368 Wise, J. 388 Wood, G. 488 Wood, I. sen. 508 Wood, R. 347, 488, 527 Wood, T. 548 Woodcock, I. 288 Woodcock, J. 428 Wooden, T. 163 Woodgate, W. H. 308 Woodley, J. G. 192 Wright, T. 408, 488, 508 ADVERTISEMENTS OF ESTATES FOR SALE. Kent and Sussex-Lidwell's Estate at Goudhurst, Winch | Middlesex and Suffolk-Forty-one Inns and Public-houses Residence on the Lake of Coniston Water, Law Life Assurance Shares, Shuttleworth, ap. 18 Farms, &c. at High Wycombe, Smith and Son, Lincolnshire-Langrick Ferry and other Estates at Boston, and Son, ap. 52 Estates, Smith and Son, ap. 40 and Glamorganshire-Quarries, Manufactories, &c. Brown, Llanelly, ap. 16 Cheshire-Lands, &c. at Macclesfield and Rainow, Ferguson, ap. 46 Cornwall-Estates, Brooks and Green, ap. 24 Denbeigh Freehold Estates and Sporting Manor, Lloyd, ap. 48 Devon-Advowson of Tedburne St. Mary, Hussey, ap. 84 Aller Estate, near Newton Abbott, Gillard, ap. 60 Dorset-Manor of Alton Pancras, Percy, ap. 60 Essex-Farm in the Jendring hundred, Laing, ap. 53 at Walton-le-Stoken, Smith and Son, ap. 40 New Mount Sale and Dale Hall Estate, Southminster, Smith and Son, ap. 80 Gloucestershire, Stapleton Mansion and Estate, B. Smith, ap. 2 Hants-Furlington House, near Portsmouth, Smith and Son, ap. 104 Hyde House, Winchester, Brooks and Green, ap. 40 Land at Crookham, Single, ap. 26 Albury Hall, Smith and Son, ap. 1, 46 Copyhold Field, at Barnet, Rae, ap. 21 ap. 104 Montgomeryshire-Blackhall Estate, Newtown, Smout, ap. 69 Middlesex-Building investments in London, Robins, ap. 48 ap. 32 nock, ap. 50 Trundle, ap. 85 Northampton-Cottage and other Property, Davis and Vigers, ap. 104 Northamptonshire-Catesby Abbey, Robins, ap. 36 --Manor and Farms at West Haddon, Davis and Vigers, ap. 104 and Advowson of Whittlesea, Smith and Son, ap. 16 Oxfordshire-Residence at Benson, Brooks and Green, ap.36 Rental of 1,000/ per annum, ap. 48 Reversion to one-fourth share of 13,3931. 7s. 1d. Davis and Vigers, ap. 104 Reversion and Life Policy, Chinnock, ap. 77 Somerset-Stream Farm at Weare and Cheddar, Barrow, ap. 80 ap. 60 and Devon-House and an Estate, Richardson and Co. ap. 62 Staffordshire-Freehold Estates, Harris, ap. 18 Suffolk-Brettenham Hall, Smith and Son, ap. 16 Estate of Brettenham Hall, Bury, Smith and Son, Farms at Debenham, Robins, ap. 36 Residences near Ipswich, Robins, ap. 36 Surrey-Building Land at Croydon, Davis and Vigers, ap. 77 Camberwell, Ground-rents, Chinnock, ap. 12 Dwelling-houses at Battersea, Chinnock, ap. 77 Elderslie-lodge, Reigate, Brooks and Green, ap. 68 Estates at Walton-upon-Thames, Nightingale, ap. House and Shop in Commercial-road, Moore, ap. 80 Houses and Shops at Brixton, Davis and Vigers, Ten Houses and Shops in Commercial-road, Moore, Mortlake, Villa Residence, Cain, ap. 32 Residence, Cain, ap. 1 in Milton-st. Dorset-square, Chinin Paddington, Chinnock, ap. 50 in Paddington and Chelsea, Chinin St. George's, Bromley and Son, 96 of the vol. House in Kenton-street, Brunswick-square, Brooks and Green, ap. 53 44 ap. 60 ap. 80 Houses in the City, Donne and Taylor, ap. 38 in Mile End, Single, ap. 26 at Notting Hill, Humphreys and Wal len, ap. 76 at Stepney and Hackney, Moore, ap. 62 in various parts, Moore, ap. 96 at Westminster, Winstanley, ap. 36 Italian Villas at St. John's Wood, Chinnock, 328 of the vol. Keppell-street, Russell-square, &c. Residences, Chinnock, ap. 12 Leasehold premises in the City, Withall, ap. 44 Mile End-road, Ground-rents, Single, ap. 26 Mile End and Commercial-road, Houses and Shares in Cemetery Company, Moore, ap. 16 Residence or Chambers, John-street, Bedfordrow, Hammond, ap. 41 Residences at North Bank, Regent's-park, Hedger, ap. 24 Residence, Regent's-park, Brooks and Green, at St. John's Wood, Brooks and Stanmore Hall, Smith and Son, ap. 32 Trade Premises in the City, Marsh, ap. 44 Verulam Buildings, Chambers, Brown and Roberts, ap. 1 Villas at Kilburn, Chinnock, 328 of the vol. Whitechapel, Houses, Single, ap. 26 ap. 24 Green, ap. 60 and Surrey Cottage Residences, Moore, ap. 29 Norfolk-Mansion and Grazing Marshes, Butcher, ap. 76 Watton Green Estate, Spelman and Son, ap. 101 ap. 36 Peckham, Houses, Sing'e, ap. 26 Residences at Newington, Davis and Vigers, ap. 60 Stoke Newington, Building Ground, Winstanley, -Down Estate, near Devizes, Smith and Son, ap. 32 -Highworth, Tithe-free Estate, Smith and Son, ap. 32 Worcestershire-The Priory, Great Malvern, Brooks and Green, ap. 24 York-Deighton-grove, Residence, Garwood, ap. 5 -Property, near Pocklington, Smith and Son, ap. 80 Yorkshire-Advowson at Beverley, Smith and Son, ap. 18 -Building Ground at Leeds and vicinity, Richardson, Smith, and Sadler. ap. 50 to, but refused to join them in the petition; and Page stating that there were many items which were not payable by them, and in respect of which they had not retained Hare; but at the same time offering to pay what should appear to be due to Hare on taxa. tion of the bill in respect of the business done for the firm, and any other business for which the petitioners or either of them were liable; and praying that an injunction should be granted to restrain Hare from prosecuting the action. There was an affidavit by Hare, in which he stated that none of the business for which the bill was incurred was transacted in any Court; that the petitioners were present at the sale of the private property of William, and signed the Though at law, and also in equity, taxation after judg... ment is not allowed, yet in equity the Court will order judgment in an action to recover a bill of costs to be entered up without prejudice to taxation. Two out of three partners may present a petition for taxation, admitting thereby their liability to pay all that is justly due, but disputing the retainer as to part of the bill of costs relating to private business Kindersley and Hitchcock, for the petitioners, con- tended that they were clearly entitled to an order for taxation. The retainer was denied, and Mr. Hare had merely said in his affidavit that the business was done on the joint retainer. [The MASTER of the ROLLS.-Does not the Taxing-master always con- sider the question of retainer.] Yes; and the only thing that can be objected is, that the petition is pre- the habit of deciding questions of retainer, and ther is nothing in the circumstances of this case as they appear on the affidavits to make it necessary to have the question tried at law. If the solicitor likes, let him have a verdict in the action; but there must be Practice-Next friend of married woman-Staying proceedings-Changing next friend-Security for But where the solicitor of the plaintiff, a married wo- man, being himself interested in part of the pro- perty comprised in her marriage settlement, made his own cook next friend of the married woman, who had instituted a suit for the purpose of enforcing payment of the income of the part settled to her separate use for life, proceedings were stayed till security should be given for costs or the next friend This was a motion to stay proceedings till security tain freeholds were settled on the husband for Sidney Smith, contrà, contended, first, that there Kindersley, in reply. life, with remainder to the children, and a certain became his personal representative. In 1826, the securities were re-assigned to Mr. by her next friend Miss Harriet Warner, to recover it, Mr. Gedye being the solicitor. On inquiry at No. 9, Saville-row, Walworth-road, the address of Miss Warner, it was found that Mr. Gedye lived there, and Harriet Warner was his cook. Under Freeling moved to stay proceedings.-A clerk of the defendant's solicitor had applied to Harriet War- The MASTER of the ROLLS.-According to the On the 27th of November, 1846, Mr. Hare be done; and what had been done in other cases in any respectable solicitor? Certainly a next friend brought an action in the Common Pleas against the ought therefore to be done in this. The solicitor however, authorised Hare or his agents to enter verdict for what shall be found due thereon; or he an appearance for him in the action, and he may go on to verdict without prejudice to taxation. him by default. The petitioners now presented the question of retainer. Why? There is nothing! that their brother William had been applied just as well as at law. The Taxing-masters are in been totally lost or misapplied; it is said it was repaid, but that was only colourably, and so it would appear at the hearing if the plaintiff sustained the allegations in the bill. The question is, whether a Practice-Residence abroad-Security for costs or Where a plaintiff resides abroad, security for costs will be ordered as a condition of being allowed to proceed with the bill. The form of the order in Cliffe v. Wilkinson, 4 Sim. 122, approved of and adopted. Heathfield, for the defendant, asked that the plaintiff, who resided in America, might be ordered to give security for costs or that the bill be dismissed. He cited the cases on the subject in their order. Camac v. Grant, 1 Sim. 349; Cliffe v. Wilkinson, 4 Sim. 122; Fort v. Bank of England, 10 Sim. 616; Veitch v. Irving, 11 Sim. 122. The MASTER of the ROLLS-Is there any one on whom it can be served? Heathfield-No one except the solicitor. The defendant must be delivered from the suit some time of other. March 11.-The MASTER of the ROLLS-You may take an order to give security for costs within a limited time, or in default to dismiss the bill. That form of order will be in conformity with the order made by the Vice-Chancellor of England in Cliffe v. Wilkinson, 4 Simons, and Veitch v. Irving, 11 Simons. There was an intervening case of Fort v. Bank of England in 10 Simons, in which his Honour's attention was not drawn to Cliffe v. Wilkinson, and Veitch v. Irving was subsequent, and in that his Honour's at tention was drawn to Cliffe v. Wilkinson. There was another case of Lautour v. Holcombe, 1 Phill. 262, in which the Lord Chancellor ultimately stayed proceedings, though at first he allowed them to go on; but there were peculiar circumstances in that case, and it does not affect the present. Take the order as I have said. Feb. 24 and March 23. ROBERTSON v. SKELTON. Practice-Confirmation of report as to purchaser Orders nisi and absolute, common and special. A purchaser, who was unable to comply with the conditions of sale strictly, obtained an order nisi to confirm the Master's report allowing him to be the purchaser, and took no further step; some time after, the vendor, upon notice to the purchaser, moved specially for an order to confirm the report absolutely-Held, that the order to confirm absolutely being a common order ought not to be moved for specially, and the motion was dismissed with costs. Hubback moved, on behalf of the plaintiffs in this, case, that the Master's report of the 4th of November, 1846, allowing Henry Higinbotham to be the purchaser of the estates comprised in lots one and two, might be confirmed absolutely, and that the purchaser might pay the costs of the motion. The purchaser had obtained an order nisi to confirm the report on the 16th of December, 1846, but he had not moved to confirm it absolutely; and the plaintiff, the vendor, now did so. The MASTER of the ROLLS.-Take the order. Steere, for the purchaser, objected that the motion, if under the circumstances of the case proper to be made, was a motion of course, and not a special motion with notice so as thereby to inflict unnecessary costs on the purchaser; and he cited, in support of his view of the case, Chillingworth v. Chillingworth, 1 Sim. 291; Lidbetter v. Smith, 5 Beav. 377; Roberts v. Williams, 2 Hare, 151. If the purchaser is bound by the conditions of sale, that was not a right course, for he cannot comply with them; but he did the next best thing he could, which was to get the Master's report and an order nisi for its confirmation, and the other parties were not served. Besides, no application before notice of motion was made to him to go on; but in the cases referred to, notice was given by the other side. This was not a case for costs at all. The MASTER of the ROLLS said he would inquire as to the practice in such cases, and ascertain whether it should be a special or common order. The plaintiffs had a right to get the order to confirm absolutely if the purchaser neglected to do so. There is this reason also for the order being a special order, that the matter is thereby taken out of the hands of the purchaser, and some notice thereof should be given; but then an adverse motion is a different thing. He was sorry there had been no communication between the parties, but such civility is not perhaps always to be expected. The question of costs had raised this storm. The MASTER of the ROLLS having subsequently obtained a full copy from the registrar's book of the Order of the 25th of April, 1827, in Chillingworth v. Chillingworth, he communicated the same to the counsel on both sides. The following is a copy of that order: Upon motion this day made into this Court by Mr. Girdlestone, jun. of counsel for the plaintiffs, it was alleged that by an order, dated the 12th of February, 1824, it was ordered that the report of Mr. Trower, one of the Masters of this Court, dated the 9th of September, 1823, whereby Rees Price, on behalf of Margaret Price, was allowed the best purchaser of the premises in this said report mentioned, comprised in lot No. 16, part of the estates in question in this cause, at the sum of 5151. and all the matters and things therein contained : should stand ratified and confirmed by the order, Court for dismissal of the bill within four weeks after authority, and decree of this Court, to be observed his own answer is to be deemed sufficient (Dalton and performed by all parties thereto according to the v. Hayter, 7 Beav. 586; 6 Law T. 234); and having tenor and true meaning thereof, unless the plaintiffs that right, the Court, on his application, will hold, if and defendants, who were many in number, and lived there be no excuse offered by the plaintiff, that his remote from each other, their respective clerks in bill should be dismissed, merely obtaining an order court having notice thereof, should, within eight days of course to amend before the motion to dismiss is after such notice, shew unto the Court good cause to heard, not being a sufficient ground for indulgence. the contrary. That it appears by the affidavit of (Stinton v. Taylor, 4 Hare, 608.) Now see what has James Taylor, that on the 23rd of February, 1824, been done here. No step was taken by the plaintiff he, the said James Taylor, as solicitor for the plain- for a whole year till we moved to dismiss; whereupon tiffs in this cause, received from his clerk in court a she obtained an order of course to amend and the copy of the said order, dated the said 12th of Febru- only reason assigned for the delay is the saving of ary, and which he believed was duly served on the expense in case of admendment being necessary after said plaintiff's clerk in court by or on behalf of the the answer of the other defendants, the defendant said Margaret Price, the purchaser; the words Forman being only a formal party. That is no ex"served 25th February, 1824," being written thereon cuse, for except Mr. Forman, the pocket-defendant, by the clerk or agent of the said James Taylor's Mr. W. G. Gray was the last defendant who had to clerk in court. That the said Margaret Price, neg- answer, and his answer was sufficient so long ago as lecting to procure the said order to be made absolute, the middle of March 1845. the plaintiff obtained the office copy of the said order, and which was signed by one of the deputy registrars of this Court; and it appears by the affidavit of Charles Hirst, that he did, on the 5th day of February inst. serve Mr. Jackson, Mr. Smith, and Mr. Wainewright, the clerks in court, for all parties in this cause, with the said copy of the said order, dated the 12th of February, 1824. That no cause has been shewn against the said order, as by the registrar's certificate appears. It was therefore prayed that the said order may be made absolute, which is ordered accordingly." Reg. Lib. A. 1826, fol. 925. March 23.-Hubback now renewed his motion. [The MASTER of the ROLLS.-Chillingworth v. Chillingworth is the only authority; the other two cases which were cited do not apply. The order not being made upon motion is the material thing.] I rely on the conditions of sale, which provide that the purchaser is to pay the costs, and not on the practice of the Court. He cited Snow v. Hole. The MASTER of the RODLS held that the plaintiffs might have proceeded, and served the order nisi, and confirmed the same absolutely, and therefore he refused the motion, and gave the purchaser his costs thereof. March 11, 13, and 23. FORMAN v. GRAY. By Order 66 of May, 1845, one order of course for leave to amend as plaintiff may be advised may be obtained any time before replication, and within four weeks after the last answer of the last answering defendant is to be deemed sufficient; and an order of course so obtained at the Rolls under any circumstances cannot be considered irregular, nor is it liable on that account to be discharged. But though such an order may not be irregular, it may nevertheless be very improper if obtained under circumstances involving gross misconduct of the parties, and may on that account be discharged. Such an order, however, if regular, cannot be discharged at the Rolls if the cause in which it is made is attached to another branch of the Court; the jurisdiction at the Rolls in such a case being strictly confined to the question of irregularity, and not extending to the impropriety of the order founded on the conduct of the parties. Heathfield, contrà.-The former motion was to discharge the order for irregularity, and, failing in that, they now seek to discharge it on the ground of fraud: but there is no authority to shew that the course pursued is at all objectionable. If there was a clear case of fraud made out, doubtless the Court would give relief; but nothing of the kind is shewn. The order to amend was obtained after the notice of motion to dismiss and before the hearing thereof, and the case was therefore reduced to a question of costs. The defendant has not shewn that he did not then know all the facts he now states in support of his motion; and if he did, he ought to have asked that the case should stand over that he might have time to bring forward his reasons. He did not do so; and he has got his costs. It is said the delay is not fully explained; the reason given was poverty. The MASTER of the ROLLS.-The question is, whether the plaintiff has used due diligence in getting in the answer. Heathfield. You may have one order of course to amend any time so long as the defendant lies by without taking any step, and the plaintiff may make use of the liberty given him. March 13.-Elderton, in reply. The MASTER of the ROLLS.-I will not decide the point now; but I may observe that there has been Practice-Order of course to amend-Irregularity-gross delay. The question is this: [here his lordImpropriety-Delay-Pocket defendant-Evasion of ship stated the facts and dates.] The defendant general orders-Jurisdiction at Rolls. might have moved to dismiss in the middle of March, 1846; and if he had so moved, it might then be a good reason, on the part of the plaintiff, for the purpose of resisting the motion, to shew that there was one defendant who had not put in his answer, and that might have formed a sufficient excuse to defeat the motion to dismiss. Nothing, however, was done by either party till the 17th of December, 1846, a year after the answer of this defendant, who now moves, was put in. Between the time when the notice of motion was given, and the morning of the day on which the motion was to be made, viz. the 21st of December, 1846, an order of course to amend was obtained; and the question is, whether it is an order which is sustainable, and if it is quite regular whether credit is to be given to it, and a party obtaining it may take the benefit of it to defeat a motion to dismiss. The motion to discharge the order for irregularity could not be granted, because the order was quite regular. The 66th of the New Orders says, one order of course for leave to amend may be obtained at any time before filing a replication, and within four weeks after the answer, or the last of several answers, is to be deemed sufficient, but no farther order, &c. Now then an order of course has been obtained in this case, because the last answer was not put in; how did it happen that it was not put in? The plaintiff may oppose the motion to dismiss, on the ground that the answer is not in; but I never heard of a case in which the question why the answer had not been got in, was not asked; and if a good reason is assigned, the Court will deal with that reason, and admit it as an excuse; and the motion to dismiss will not be allowed, though the defendant may be in a condition to move according to the practice of the Court. And if this case had been one of a sort analogous to that, the order under consideration must have been sustained. If after appearance for the defendant the plaintiff had wished to amend, the question would be, are you entitled to an order to amend? Yes, it would be said, we are in a condition to do so by reason of the last answer being outstanding. And why is it so? The answer to that is, the defendant, the husband of the plaintiff, is under the guidance and control of the solicitor of the plaintiff. The answer is not in, says the plaintiff; why? It is not convenient to get it in because it is desired to have only one answer to the original and amended bill. Now, if that were the reason, the order ought to have been obtained after the last answer was to be deemed sufficient. Is there any excuse for the delay? No, no valid excuse. Well, then, if there has been wilful delay, and the only ground for an order to amend is that the last answer has not been got in, would that be available to a party standing here to oppose a motion to dismiss ? But if the case is in the Rolls Court, the question of impropriety can be considered there of course in the same manner as in any of the other courts. This was a motion to discharge an order of course for leave to amend the bill, which had been obtained by the plaintiff, to take the amended bill off the file, and to dismiss the original bill. The bill was filed by the plaintiff, a married woman, on the 23rd of July, 1845 (vide same case, 8 Law T. 491), and amended on the 29th of July. On the 16th of December William Gover Gray, the defendant, on whose behalf this motion was made, put in his answer, which became sufficient on the 10th of February, 1846; and the time for obtaining an order of course to amend expired on the 10th of March. On the 1st of June an appearance was entered by the solicitor of the plaintiff for Mr. Forman, who was the husband of the plaintiff, and the only defendant who had not then answered. Nothing more was done till the 17th of December, when the defendant W. G. Gray served the plaintiff with a notice of motion for the 21st to dismiss the bill for want of prosecution; whereupon the plaintiff, on the morning of the 21st, served the defendant with an order of course to amend, and paid 20s. costs. This order the defendant Gray, on the 28th of January last (vide 8 Law T. p. 492), moved to dismiss for irregularity; but not being successful, he served a notice of motion on the 8th of February last for the same purpose, but on a different ground, alleging that under the circumstances the order had been obtained in a manner involving a fraud on, or an evasion of, the General Orders of the Court. The motion now came on to be heard. Elderton for the motion.-The 114th Order, Art. 1, of May 1845, enables any defendant to come to the stances were as follows:-John Ogilvie, the owner and in the Trieste house, which has been so frequently But here are the Orders, it is said; and in cases where VICE-CHANCELLOR KNIGHT Feb. 10 and 11. GLASCOTT v. LANG. Fraud-Bottomry-bond. Circumstances under which a bottomry-bond was, at the instance of mortgagees of a vessel, ordered to be delivered up to be cancelled on account of fraud. This was a suit instituted by the mortgagees of a ship called the Margaret Ogilvie, and of her feight and earnings, for the purpose of having a bottomry-bond delivered up to be cancelled, as being in fraud of the plaintiffs, and for an injunction against any proceedings in the Admiralty Court in respect of the bond. The case upon an appeal motion for an injunction is reported 3 Myl. & Cr. 451. The circum Russell, Heathfield, and Prendergast, for the The following cases were cited: Arthur v. Barton, A Jan. 29 and 30. MOXHAY v. INDERWICK. Specific performance-Abandonment of contract. question upon the conveyance of land, pursuant to a contract, having arisen in September 1839, a correspondence was carried on between the solicitors, sometimes at longer sometimes at shorter intervals, until 1843, without any steps being taken on either side to enforce the contract. A bill was filed by the purchaser in 1843, and it was held that the contract could not be considered as abandoned. of him. On the 23rd of May, 1839, the abstract of title was delivered; on the 29th of July, in the same year, the drafts of the conveyance were prepared, and on the 14th of August were approved. A covenant, however, on the part of the purchaser, was introduced in the engrossment, to the effect that the purchaser should properly maintain the ground as a pleasure ground. To the introduction of this covenant objections were made, and a correspondence ensued which continued till 1843, when the bill in this case was filed. The principal questions discussed were as to the abandonment of the contract, and whether the insertion of such a covenant as that proposed could be enforced upon the purchaser. It appeared that in a conveyance of this piece of land in 1808, a similar covenant, but not so extensive, had been entered into on the part of the then purchaser; but the introduction of the statement before mentioned in the particulars of sale, was urged as a reason against the present purchaser's being compelled to enter into any fresh covenant upon the subject. Swanston, for the plaintiff, cited Johnson v. Evans, 7 Man. & Gr. 240. Russell and J. T. Humphrey, for the defendant, contended that the partnership was dissolved upon the 10th of May, 1841, and that the plaintiff was not entitled to the relief asked. Chapman v. Koops, 3 Bos. & Pull. 289; Re Wait, 1 J. & W. 605; Dutton v. Morrison, 17 Ves. 193. Swanston, in reply, cited Skip v. Harwood, 3 Atk. 564. The VICE-CHANCELLOR.-Circumstanced as this case is, I am of opinion, without any doubt, that at Russell and R. Palmer for the plaintiffs. the date of the execution and assignment by the Wigram and Miller for the defendants. sheriff, the assignment had the effect of dissolving The following cases were cited :-Morton v. Tewart, the partnership. Notwithstanding that seizure by 2 Y. & C., N. C. 67; Forster v. Hale, 3 Ves. 696; the sheriff and the language of the assignment by Powell v. Dillon, 2 Ball. & Bea. 416; Reynolds v. him, I am of opinion that it is still possible, in Nelson, Mad. & Geld. 18; Taylor v. Brown, 2 Bea. point of strict right, that something may, on the re180; Stains v. Morris, 1 Ves. & Bea. 8; Wilkins v.sult of an account or an inquiry, appear to be coming Fry, 1 Mer. 244; and Watson v. Reid, 1 Russ. & to the plaintiff, and that it is the strict right of the Myl. 236. plaintiff not to have the bill dismissed. Without deThe VICE CHANCELLOR said, that as the plaintiffs ciding what it was or was not by law in the power of were willing to accept the title, and insisted on a spe- the sheriff to seize, my impression is, that the plaincific performance of the contract, whether the cove- tiff is entitled to an inquiry of this description- a renant were inserted in the conveyance or not, they were ference to the Master to inquire what were the parentitled to the decree, and the only question would be ticulars of the stock in trade, debts, effects, and as to the conveyance itself. Considering the purpose liabilities at the time of the execution; what debts for which it was necessary, in order to establish a were then due to the partnership; what was then right in the plaintiffs, for them to join as plaintiffs, due by the partners to the partnership; what, if any and considering the circumstances under which the thing, had been received in respect of the partnership, case stood, his Honour was of opinion that sufficient and by whom, and how the same had been applied, evidence had been given to satisfy the Court of the and whether the debts and liabilities of the partnerpropriety of not refusing relief, upon the ground that ship at the time of the execution had been discharged, the two individuals before the Court were jointly and by whom. plaintiffs, and sufficient also to render it unnecessary to send to the Master an inquiry as to their interest or the interest of either of them. As to the alleged abandonment and the alleged laches, he thought that no case had been made. The question, then, was as to the form of the decree. The plaintiff, Mr. Moxhay, had elected to abide by his purchase rather than give it up; that was, that even if the contention of the defendant could be established against him as to the covenant, still Mr. Moxhay would rather have it than give it up. The proper course would therefore be to send a reference to the Master to approve of a proper Pigott, on behalf of a purchaser under a decree in conveyance under the contract, the title being accept- this cause, moved for leave to pay into court his pured; also inquiries whether the occupation since the chase-money and interest thereon, after deducting purchase had been beneficial? whether the occupier from such interest the amount of the income tax. He had received any rent? and what, if any, he had ex-referred to the terms of the Income Tax Act, 5 & 6 pended in substantial repairs, and in the performance Vict. c. 36, s. 102. of the covenants? Tuesday, Feb. 9. HABERSHON v. BLURTON. Partnership-Dissolution-Execution against partner. Where an execution was issued against a partner, and under it his interest in the partnership stock, and effects, was sold, the Court held it to be a dissolution of the partnership. Russell asked that it might be declared that the partnership was dissolved; but the Vice-Chancellor declined to insert such a declaration in the decree, considering that it was unnecessary. Feb. 24 and 26. A purchaser paying in his purchase-money with interest is not allowed to deduct the amount of the income tax from the interest. Spence, for the plaintiff, objected, and said that the course of the Court did not allow of such deduction as was sought to be made. The VICE-CHANCELLOR said that it appeared to him that the application was reasonable, but he could not take upon himself to alter the course of the Court. He would, however, allow the application to stand over for inquiries to be made of the registrars. Feb. 26.-Pigott mentioned that the registrars being of opinion that the deduction of the income tax A partner having purchased from the sheriff, under could not be made, he would take the order without an execution, the share of his partner in the partner-referring to the income tax. ship effects, the Court, under the circumstances of the case, held that the latter was entitled to have an account taken of the partnership dealings and transactions. This was a suit instituted for the purpose of having a dissolution of a partnership carried on between the plaintiff and defendant as printers, and for an account of the partnership dealings and transactions. It appeared that in February 1836, a partnership was formed between the plaintiff and defendant for seven years, as from March in that year; and it was agreed that the defendant was to manage the business, and receive a weekly stipend, but that the plaintiff was to be exempted from personal attention to the business. During the years 1836, 1837, and 1838, the plaintiff brought into the business 2801. aud in 1838 the defendant brought in 2001. and the plaintiff was repaid, out of the partnership assets, a sum advanced by him as a temporary loan. The profits were never divided, but the assets and profits remained in the hands of defendant; and down to 1842 the plaintiff never received any sum, except that before mentioned, from the assets of the partnership. In 1841 execution was issued upon a judgment obtained against the plaintiff; and the sheriff, by a bill of sale, dated the 10th of May, 1841, in consideration of 2001. assigned to Emanuel Pearson, the share, right, and interest of the plaintiff of and in all and every the debts, furniture, chattels, and effects so seised under and by virtue of the writ of fi. fa. and held by the plaintiff in partnership or joint tenancy with the defendant. The 2001. had been borrowed by the defendant of the said Emanuel Pearson, for the purpose of this purchase; and, on the 30th of September, 1841, the said share, right, and interest was assigned by the said Emanuel Pearson to the defendant. The bill alleged that the consideration for this purchase had been paid by the defendant out of the moneys of the partnership, and that the purchase was but a payment of the plaintiff's, with a portion of his share of the profits of the partnership; and that there was then due to the plaintiff, from the partnership, a larger sum than that paid to the sheriff. The bill was filed in September 1845. Order made accordingly. Saturday, Feb. 27. TOWNE v. BONNIN. Practice-Taking traversing note off the file-58th Order of May 1845. Rasch, in this case, applied on the 24th inst. and now renewed the application, to take a traversing note off the file. It appeared that the bill was filed on the 3rd of December last; on the 23rd of January the time for answering expired, and an application to the Master for further time was refused: on the 3rd of February a traversing note, and on the following day replication, was filed; and on the 5th of February the answer was prepared and engrossed, and would have been filed but for the traversing note. He cited the 56th and 58th Orders of May 1845, and Rigby v. Rigby, 6 Beav. 255. Egan, for the plaintiff, opposed the application, contending that the Master had refused to extend the time for answering, and that the defendants did not ask, by their notice of motion, for the removal of the replication as well as of the traversing note. The VICE-CHANCELLOR directed that the traversing note should be taken off the file. Wednesday, March 10. JONES v. FAWCETT. Practice-Married woman-Next friend. After a decree, the Court allowed the next friend of the plaintiff, a married woman, to be changed, although the defendants opposed the application on the ground of the proposed new next friend not being a person of substance. In this suit a married woman was plaintiff, and her next friend had been twice changed. After a decree an application was made to substitute another person for the then next friend. Affidavits had been filed on behalf of the defendants, and counter affidavits on behalf of the plaintiff, regarding the pecuniary circumstances of the proposed next friend, who was alleged by the defendants not to be a person of substance. In one of the affidavits an allegation was made of money having been offered to a witness to make a particular statement, and it is to this allegation that the Vice-Chancellor alludes in his judgment. S. Bell, in support of the application, contended that it was not necessary that the next friend of a feme covert should be a person of substance. (Pennington v. Alvin, 1 Sim. & Stu. 264; Wale v. Salter, Moseley, 86; Drinan v. Mannix, 3 Dru. & War. 154.) In Dowden v. Hook, 8 Beav. 399, Lord Langdale, after referring to Pennington v. Alvin and Drinan v. Mannix, says, "A decision of Sir John Leach, approved of by Sir Edward Sugden, is deserving of the greatest respect, and cannot be departed from without great hesitation. In ordinary cases such authority is sufficient to sustain a rule of practice; but the consequence of declaring that a married woman shall not be permitted to sue without giving security for costs, or without a next friend who can swear he is competent to answer the costs, appeared to me to be very serious. It is obvious, indeed, that there may be many cases in which such a rule would plainly prevent the woman from seeking to establish the most just claim, and in that way would amount to an absolute denial of justice. I therefore thought it right to make some inquiry respecting the practice of the Court in such cases; and I have found two cases, in which a married woman suing by her next friend, has been admitted to sue in formâ pauperis ; one in the case of Collier v. Young (25th of October, 1743), and the other in the case of Valentine v. Walker (19th of May, 1843). In the last case, which occurred eleven years after Pennington v. Alvin, the order was made as an order of course, but after consideration, by Sir John Leach himself, on the authority of the former case of Collier v. Young. And as it appears from the cases, that a married woman may be admitted to sue in forma pauperis, it seems too much to contend that she cannot, as in this case, sue by a next friend, who, though not able to say that he has the present means of paying the costs which may be awarded against him, does nevertheless swear that he is perfectly solvent, and who is clearly personally answerable for any costs awarded against him, and left unpaid. Under the circumstances, there seems reason to consider that the decision in the case of Pennington v. Alvin may have depended more than appears by the report upon the special circumstances which attended it; and notwithstanding the authorities cited, I do not think that I ought to grant this motion." The VICE-CHANCELLOR. Suppose a married woman has a clear right, and cannot obtain any person to be her next friend, what is she to do? I have been much struck by those observations of Lord Langdale. In this case there is an adjudication that the woman is at least entitled to an inquiry. Teed and Collins, for the defendants, contended that a married woman, suing by her next friend, should, at all events, have a next friend of sufficient substance to pay costs. The VICE-CHANCELLOR.-I should have been disposed to make this order, except from what has been stated in the last affidavit, which appears to amount to a contempt of court. Subject to the explanation which must be given of that circumstance, I direct that upon payment of the costs of this application, and giving security for those already incurred, the suit may be prosecuted in the name of the proposed next friend. Bankrupt and Insolvent Courts. COURT OF REVIEW. The fees of 201. and 101. payable under these sections are to be paid prior to the costs of the solicitor to the fiat; and that whether assignees have been chosen or not. This was a petition for payment of the taxed costs of the solicitor to the fiat, out of a sum of 271. stand. ing to the credit of the bankrupt's estate in the name of the accountant in bankruptcy. The 201. and 101. directed by the 1 & 2 Wm. 4, c. 56, to be paid had not been paid, no assignees having been chosen, and there being no probability of any being chosen. The bankrupt had obtained his certificate in November last, but the solicitor had received nothing on account of his costs. Several cases having occurred with regard to the payment of these sums of 201. and 101. (see Ex parte Diamond re Diamond, ante vol. 4, p. 378), this petition stood over until the Lord Chancellor had given an opinion upon the subject. Forster for the petition. The CHIEF JUDGE now said that Mr. Ayrton, the Registrar, had informed him that the Lord Chancellor had intimated that he was of opinion that the solicitor's bill was not payable out of the bankrupt's estate until after payment of the sums of 201. and 101. required by the 1 & 2 Wm. 4. c. 56. His own opinion had always been that, the language of the Act being obscure, effect ought not to be given to a fiscal regu |