er of a mine has all the necessary incidental to the f the mine out of derived from the rals. Roberts v. 148 were demised at a er ton upon the coal got, and also at the year, or so much the royalty should t sum, such rent of minimum rent for the And the lessee covethe rents, and to work Teld, that a Court of not restrain an action for the minimum rent, coal proved to be not xpense of working; but lessor were to sue upon covenant to work the ourt would interfere. sing the rule of caveat the case of leases of coal must be remembered that cquainted with that kind y is aware that coal mines to be interrupted by faults. balance, if it should be found to be against the accounting party. A., having a claim for an account against B. and C. in respect of a former partnership between them, wrote to B.-"C., before he goes, ought to settle the Bridgewater and Minehead account; because, if he is under any idea that there is a balance due to him, he is grossly mistaken, as such balance is due to yours ever, A." B. answered,-" My dear A.-Bridgewater and Minehead: I have had a long talk with my partner about this matter, he says and insists, that there is a large balance coming to him; but I have put the matter right with him, and you and I must go into it and settle the account. It is necessary that we should sit down to this matter and put it on the square:"-Held, that this was a sufficient acknowledgment of the right to an account, and promise to pay anything that might be due, to save the right to sue for an account in equity from being barred by the sta Prance v. Sympson, 678 tute. LUNACY. An order in lunacy directing the taxation of the costs, charges, and expenses incurred by the solicitors employed in prosecuting the commission in lunacy, and subsequently as the solicitors of the committees, and directing an inquiry whether it would be fit and proper to raise these costs, &c., by sale or mortgage of the lu natic's real estate, did not constitute them a judgment debt, nor make a charge in equity upon such real estate; but such costs, &c., were considered as a simple contract debt due by the lunatic for necessaries. The lapse of six years, during the lunatic's life, will not bar a debt of this description; for the Court of Chancery will take judicial notice, in MARRIED WOMAN. a suit to obtain payment out of his assets after his death, that any action against the lunatic for the recovery of the claim would have been restrained by the Lord Chancellor on petition in lunacy. An action of debt for necessaries supplied will lie against a lunatic. Stedman v. Hart, 607 MARRIED WOMAN. See ADVANCEMENT. POWER OF APPOINTMENT, 1, 3. A married woman, entitled to property under a settlement to her separate use, concurred with her husband in raising money upon mortgage of it, by a deed which expressed that the money was borrowed by and paid to herself and her husband, but contained a covenant by the husband for repayment:-Held, that the presumption was, that the money was received by the husband, but that this presumption might be rebutted by extrinsic evidence. In the absence of such evidence, held, that the wife was only a surety for the husband, and was, after his death, entitled, as against his other creditors, to all the rights incident to that relation, and therefore had a right to have the debt paid off, as a specialty debt, out of the husband's assets. If the mortgage be of the wife's freehold estate not settled to her separate use, she is still a surety, and has all the rights of a surety, except perhaps as against her husband's other creditors. Whether, in this last case, if her estate has paid off the mortgage, she has only a right to be repaid out of her husband's assets, after all his other creditors by simple contract— Quare. The dicta to that effect in Tate v. Austin, (1 P. Wms. 264), and Clinton v. Hooper, (1 Ves. jun. 187), disapproved. Hudson v. Carmichael, 613 MINES. MINES. 1. Where tenants in common of a mine have been working it in partnership, or where the mine itself is the partnership property, the Court will not appoint a receiver or manager at the instance of one of the partners, in a suit which does not seek to dissolve the partnership. Nor, even in a suit to dissolve the partnership, will the Court appoint a receiver on an interlocutory application, merely upon evidence that the partners do not co-operate in the management of the business; but to sustain such an application it must be shewn that one partner has interfered so as to prevent the business being carried on. A managing partner of a mine has authority to defray all the necessary and proper expenses incidental to the beneficial working of the mine out of the joint profits derived from the sale of the minerals. Roberts v. Eberhardt, 148 2. Coal mines were demised at a certain royalty per ton upon the coal which might be got, and also at the rent of 300l. a year, or so much thereof as with the royalty should amount to that sum, such rent of 300%., to be a minimum rent for the coal demised. And the lessee covenanted to pay the rents, and to work the mine-Held, that a Court of equity would not restrain an action by the lessor for the minimum rent, although the coal proved to be not worth the expense of working; but that, if the lessor were to sue upon the lessee's covenant to work the mine, the Court would interfere. In applying the rule of caveat emptor to the case of leases of coal mines, it must be remembered that every one acquainted with that kind of property is aware that coal mines are liable to be interrupted by faults. MOTION FOR DECREE. 749 If all the coal had been gotten by ancient workings, that might be a case for equitable relief. Ridgway v. Sneyd, 627 MISNOMER. See WILL 2. MISREPRESENTATION IN PARTICULARS OF SALE. See VENDOR AND PURCHASER, 1. MONEY. See WILL 5. MORTGAGE. See BENEFIT BUILDING SOCIETY. TENANT FOR LIFE. In a suit to redeem, the mortgagee having, by mistake, omitted to attend at the time and place fixed by the Master for payment of the sum computed to be due to him for principal, interest, and costs, the Court, upon motion, with notice, appointed a new time and place for the payment of the money ten days after the date of the order. In such a case, the Defendant is not entitled to subsequent interest. Hughes v. Williams, App. iv. MOTION. See AMENDMENT. STAYING PROCEEDINGS, 1, 2, 3. MOTION FOR DECREE. 1. A Plaintiff may have the same relief upon a motion for decree " ac MUNICIPAL CORPORATION. Where a municipal corporation are raising an illegal rate, the proper course is to apply to a Court of law to quash the rate under the Municipal Corporation Act, 5 & 6 Will. 4, c. 76, or to appeal by certiorari to the Court of Queen's Bench under the 7 Will. 4 & 1 Vict. c. 78, s. 44. It is not competent for persons having in their hands funds which have been appropriated by an Act of Parliament to certain given purposes, to apply them for the extension of those purposes, without a previous application to the Court of Chancery. Therefore such persons will not be permitted to apply the funds to pay the expenses of promoting a bill, which is thrown out, if they have not previously obtained the authority of the Court for so doing. Nor is it lawful for them to apply the funds in promoting a bill for an extension of the purposes of their existing statutes. Where an incorporated town had the benefit of a river passing through it, which was the main sewer of two thirds of the town, and a bill was before Parliament for the purpose of enabling certain persons to abstract a very large portion of the water from this river before it reached the town:-Held, that, under the Municipal Corporation Act, and particularly sects. 90 and 92, whether the corporation of the town had any sur PARTIES. plus borough fund or not, as they would be justified in incurring the expense of an information for an injunction to prevent the commission of such a nuisance, if unauthorised, they were equally justified in applying their funds to oppose the bill for legalising the threatened injury to the river. Att.-Gen, v. The Mayor &c. of Wigan, NECESSARIES. See LUNACY. NOTICE. See CHARGING ORDER. COVENANT. INJUNCTION, 1, 2. LEASEHOLDS, 2. 268 PATENT. perfected another creditor entered a caveat. The Court of Chancery made an order under section 44 of 15 & 16 Vict. c. 86, appointing the former creditor to represent the estate of the deceased, after a week's notice given to the opposing creditor; or, if the former creditor should refuse to be such representative, then, upon evidence by affidavit of such refusal, appointing the other creditor to be such representative. Section 44 is only intended to apply to cases where there is a difficulty in obtaining representation, owing to the insolvency of the deceased or some such cause. Long v. Storie, App. xii 2. An equity of redemption was granted by deed to trustees upon of trust for certain parties, some whom were infants. The mortgagee filed a bill for foreclosure against the trustees of the settlement and the adult cestuis que trust only, as Defendants. One of the latter died after the filing of the bill. The Court, upon a motion for a decree for sale, made the decree in the absence of the infant cestuis que trust and of the representative of the deceased Defendant, upon an affidavit by the trustee of the settlement, that it would be for the benefit of the infants; and ordered the proceeds to be paid into Court. The costs of the trustee, as he would be a necessary party to reconvey, were ordered to be paid out of the mortgage debt. Siffken v. Davis, App. xxi PARTNERSHIP. PATENT. See ACCOUNT. POWER OF APPOINTMENT. 751 PERPETUITY. See LEASEHOLDS, 1. POWER OF APPOINTMENT, 1, 3. PLEA. A misdescription of the Plaintiff in the introduction to the bill may be taken advantage of by plea. But such plea must be very precise in its averments, so as to raise the issue distinctly; and a plea, that, in the bill, the Plaintiff is described as of B., whereas such 'description is false, the facts being that she used to reside there during the life of her father, "but shortly after his death she quitted her home," and had never since returned, was held insufficient, because, for anything that appeared, the Plaintiff might not have quitted B. till after the filing of the bill. Smith v. Smith, App. xxii PLEADING. See ESTABLISHING A WILL AGAINST POLL. See VESTRY. POWER OF APPOINTMENT. 1. Under a power of appointment of a trust fund among children, in the usual form, the share of a married daughter, who was unborn at the creation of the power, was limited to trustees, upon trust for her separate use, for life, without power of anticipation, and, after her decease, to her |