1854. July 8th. In the Matter of the Trusts of CATHERINE ALLEN'S Will. THIS was a petition concerning a fund which had been paid Jurisdictioninto Court under the Trustee Relief Act. Mr. Willcock, Q. C., and Mr. Metcalfe for the petition. Mr. Rolt, Q. C., for some respondents, said, that the case was so complicated, that a suit ought to have been instituted, instead of trying the questions upon petition under this Act. One question would be, as to the sanity of a party since deceased at a particular period of his life, upon which it might be necessary to direct an issue. The 2nd section of the Act, 10 & 11 Vict. c. 96, after giving a general authority to the Court to make orders on petition respecting moneys paid into Court under the Act, provided that "if it shall appear that any such trust funds cannot be safely distributed without the institution of one or more suit or suits, the Lord Chancellor or Master of the Rolls may direct any such suit or suits to be instituted." Mr. Willcock, Q. C., referred to Re Wright's Trust (15 Beav.367). Mr. Chandless, Q. C., Mr. De Gex, and Mr. Humphry for other respondents. The VICE-CHANCELLOR Sir W. PAGE WOOD said, that, if there' were creditors, or other unascertained claims, a suit might be necessary; but that, where there was no such question, and all' parties were before him, the Court had jurisdiction, upon a petition under the Trustee Relief Act, to decide the matter, just as if it were a suit; and, if necessary, the Court could direct an issue to try any question as to sanity or the like that might arise. 10 & 11 Vict. c. 96, s. 2Suit. 1854. July 12th. Further Consideration -Affidavits. Affidavits as to the filing of the will not be ad mitted at the hearing on fur FLEMING V. EAST. THE decree on the hearing of this cause directed an account to be taken of what, if any thing, was due to the Plaintiffs in respect of the purchase-money of property sold to the Defendant. The Judge's Chief Clerk by his certificate certified (in effect) that a certain sum of money was due to the Plaintiffs from the Defendant in respect of the purchase-money, and that the Defendant claimed to be entitled under a deed of assignment to a sum of money due from the Plaintiffs to a third party and thereby assigned to the Defendant, and to set off the last-mentioned sum against the amount found due from the Defendant in respect of the purchase-money. The assignment, which purported to be voluntary, was proved before the Judge's Clerk, and evidence was given that the Plaintiffs had notice of it, and no evidence inquiry may be impugning its validity was produced before him. But after his certificate was filed, and on the day on which the cause first appeared in the daily cause list of the Court for further consideration, the Plaintiffs filed an affidavit, tending to shew that the assignment was in fact a mortgage, and that it had been paid off; in other words, that the money which the Defendant the assignee claimed to set off really belonged to the assignor; the affidavit also alleged that the assignor could not be found. ther consideration, but, if necessary, upon the suggestion of counsel an directed. Mr. Willcock, Q. C., and Mr. Deere Salmon, for the Defendant, objected to the affidavit being read, on the ground of its being filed too late. They contended, that the practice of admitting affidavits filed after certificate would be very inconvenient, and tend to raise new issues, and nullify the certificate. They said, that the practice was not settled, and requested the Vice-Chancellor to decide the point in order that there might be a general rule on the subject. Mr. Rolt, Q. C., and Mr. Jolliffe, for the Plaintiffs, argued in favour of the reception of the affidavit. The VICE-CHANCELLOR said, that he could not admit the affidavit; but the Plaintiffs' counsel might state, for the information of the Court, the facts set forth in the affidavit, so that, if necessary and proper, an inquiry might be directed. INDEX TO THE PRINCIPAL MATTERS. ACCOUNT. See LIMITATION OF ACTIONS, 3. The right to a decree in equity for The owners of a patent for a pe- E. K. W. 1 ADVANCEMENT. A legacy being left upon trust for the separate use of a married woman during her life, without power of anticipation, and, after her decease, for her children, with power to the trustees to advance 1000l., part thereof, to place her in any trade, business, profession, or employment, or otherwise, or for her preferment or advancement in the world; and this legacy having been transferred into Court in this cause to the account of the legatee and her children, the Court, on the petition of herself and her husband, advanced to her 1000l., to be employed with another 10007. belonging to the husband in establishing him in an advantageous partnership with two other persons, in a lucrative business with which he had been connected for thirteen years, upon his effecting an insurance upon his own life in the names of two trustees appointed by the Court, to be held by them upon the trusts of the said legacy, and also entering into a bond in a proper penalty to the same trustees, to secure the due payment of the premiums upon such policy of insurance. Phillips v. Phillips, AFFIDAVIT. See EVIDENCE, 1, 3, 4, 5. AGENT. See SPECIALTY DEBT. ALTERNATIVE GIFT. See ANNUITY. AMENDMENT. 40 An order of course may be obtained, after replication, to amend by adding parties, where no new issue is thereby tendered. Bryan v. Wastell, App. xlvii. APPROPRIATION. ANNUITY. A bequest to trustees of the sum of 201. per annum Bank Long Annuities, or an annual sum equal thereto, upon trust to pay the same to E. for life; and, after her decease, to pay, assign, transfer, and make over the principal stock or money which should be set apart for the payment of the said yearly sum to E.'s children, share and share alike. The testatrix, at the date of her will, and thence till her death, had 50%. a year Bank Long Annuities, which would terminate in 1860:-Held, that the testatrix intended to give a perpetual annuity of 20%., and that the trustees of the will had not an option to make either a permanent investment, or set apart 201. a year Long Annuities, at their discretion; but were bound to take the course which was most for the advantage of the children of E., by investing in Consols such a sum as would produce 207. a year, to answer the legacy. Haggar v. Neatby, APPEAL. 379 Under the 2nd and 3rd Orders of the 7th of August, 1852, with repect to appeals, the Court to which any cause is attached, and not the Lord Chancellor and Lords Justices only, has jurisdiction to extend the time within which a decree may be enrolled beyond the period of six months mentioned in the order. The party applying for this indulgence is not bound first to the pay costs of an unsuccessful appeal to the Lord Chancellor, but must pay the costs of the application. Butchardt v. Dresser, App. xxvii. APPROPRIATION. See LIMITATION OF ACTIONS, 1. BENEFIT BUILDING SOCIETY. APPORTIONMENT. APPOINTMENT. BANKRUPTCY. See SURETY. securities delivered up, upon payment of all their monthly subscriptions and redemption moneys, which would be payable by them during the period so fixed by the directors; but they are bound to continue contributors to the society until every other member is paid his 150%., or withdraws. One of the rules of such a society containing an imperative provision that the directors should allow to an advanced member, redeeming his security, "the same proportion of profits per share" as was allowed to withdrawing members, and the directors having allowed to withdrawing members a much larger sum than the funds of the society would suffice to pay to advanced members also:Held, that the directors had miscarried, and that the Court would not make a decree for redemption against the society at the suit of an advanced member, upon the terms that he should have such an allowance; and that the mistake of the directors could not be rectified in that suit. What are "Profits" of such a so BENEFIT BUILDING SOCIETY. The object of the 6 & 7 Will. 4, c. 32, was to enable persons to associate to raise shares of a value not exceeding 150l., and to advance to any member who should desire it the amount of his share less a certain discount, upon his giving security for his periodical payments to the society: and the legislature contemplated that some members would withdraw from the society, and the rest would receive each 150%. But the directors have no power to specify beforehand a certain time for the duration of the society: and when they have affected to do so, every member must be taken to know that they have acted ultra vires; and therefore advanced members cannot claim to have their BUILDING AGREEMENT. INJUNCTION, 1, 2. CALLS. See WILL, 9. CÆTERIS PARIBUS. CHAMBERS. 518 The Chief Clerk in Chambers never makes any order of his own authority, but all the orders made in Chambers are orders of the Judge, and are, in fact, made by him in the presence of |