appointment necessarily require residence in India for an indefinite period, confers upon the officer an AngloIndian domicil; for the law, in such a case, presumes an intention consistent with his duty, and holds his residence to be animo et facto in India. And this, even if he have property in the country which was his domicil of origin.

An Anglo-Indian is not, for all purposes, an English domicil.

A domiciled Scotchman, having ancestral property but no house in his native country, by accepting a commission, and serving in the Indian army, abandoned his domicil of origin, and acquired an Anglo-Indian domicil. He afterwards attained the rank of General in the Indian army, and was made colonel of a regiment, and then left India with the intention of not returning thither, but came to Great Britain, where he lived part of the year in a house which he had built on his estate in Scotland, and part in a hired house in London, under circumstances, which, if he had been a single man, would have given him again a Scotch domicil; but his wife and establishment of servants resided constantly at the house in London:-Held, that this fact counterbalanced the effect of the other circumstances, and proved that his intention was permanently to reside in England; and that, therefore, he must be considered to have abandoned his acquired domicil in India, and acquired, by choice, a new one in England. Forbes v. Forbes, 341

DONATIO MORTIS CAUSA. See VOLUNTARY TRUST, 1.

ELECTION.

See POWER OF APPOINTMENT, 3.
A devise by a will made before

1838, (1 Vict. c. 26, ss. 24, 34), of all the real estates of which the testator then was or at the time of his death should be seised, to his heir-at-law, if the testator acquired real estates subsequent to the date of his will, put the heir to his election.

So, also, would such a devise by a testator who died before 1834, (3 & 4 Will. 4, c. 106, s. 3), from the mere intention thereby shewn to give the heir property under the will; notwithstanding that he would take nothing in fact under the will but by his better title as heir.

In such a case, the testator, subsequently to the making of his will, contracted to buy a certain freehold estate, and then made a codicil directing the executors and trustees of his will to complete the purchase, and hold the estate upon the trusts of the will, which were partly in favour of the heir, and then the testator took a conveyance of the same estate to uses to bar dower in his own favour:Held, that the devise by the codicil was revoked, and that the heir must elect.

If a testator, before 1838, devised estate 4., which he had contracted to buy, to one person, and estate B., and all other estates which he might subsequently acquire, to another, and gave benefits to his heir, and afterwards took a conveyance of A. to uses to bar dower in his own favour, and acquired other estates:-Quare, whether the devisee of B. could claim A., and all other after-acquired estates, against the testator's heir, under the doctrine of election; for the whole doctrine proceeds so entirely upon the ground of intention, that the heir, in such a case, might be entitled to retain the estates, because neither of the devisees could have a better right against him than the other. Schroder v. Schroder,

578

740

ELEGIT.

A Canal Company was incorporated by a special Act of Parliament, which authorised them to purchase lands for the purposes of the Act, and for no other purpose, and empowered them to levy rates, tolls, and dues, and to borrow money on mortgage thereof; and contained a provision, that all persons whatsoever might navigate upon the canal, upon payment of the rates and dues thereby authorised to be taken. The Company made several mortgages of the rates, tolls, and dues under the Act; one of the mortgagees, on behalf of himself and all others, obtained the appointment of a receiver of the Company's rates, tolls, and dues, who was ordered to pay thereout the expenses of carrying on the Company's business, and then the interest on the said mortgages, and to pay the balance into Court in the

cause.

A judgment creditor of the Company presented a petition in the cause before the hearing, praying that he might be at liberty to sue out and execute a fi. fa. and elegit against the goods and lands respectively of the Company:-Held, that he might execute a fi. fa., but that all he could take under the elegit would be such right in the lands as the Company had, namely, subject to the mortgages and to the right of user of the canal by the public, and subject also to the powers of management of the Company. Potts v. The Warwick and Birmingham Canal Navigation Company,

142

ESTABLISHING A WILL
AGAINST THE HEIR.

A bill can be maintained by a devisee of the legal estate in real property, who is in possession, for the

purpose of establishing the will against the testator's heir-at-law, although the heir has brought no action of ejectment against the devisee.

Previously to the Statute Frauds the Court of Chancery frequently took upon itself to determine the validity of wills by inquiry before some of the Masters of the Court, a practice which has ceased since the case of Kerrich v. Bransby, 7 Bro. P. C. 437, A.D. 1727.

But, as early as the time of James the First, it appears to have been considered that the proper mode of trying the validity or invalidity of a will of real estate, was by a trial at law, the Court of Chancery reserving power to deal with the case as justice might require.

The proceeding in equity to establish a will against the heir differs very much from assisting to try its validity or invalidity, either by removing the obstacle of an outstanding term, in which case the trial at law would be by ejectment, or by perpetuating testimony concerning the will; because, by a decree establishing the will, the heir-at-law is so bound that a perpetual injunction would be granted against him, if after such decree he should attempt to impeach the will.

The origin of this jurisdiction is obscure; but, on principle, it cannot arise from the fact of the devise being upon trust, for that can make no difference to the heir; or because the Court experiences a difficulty, for then, in all other cases of difficulty occurring under deeds, there would be the same jurisdiction.

Nor can it be for the protection of trustees, because the jurisdiction exists where there is no trust, but only the obstacle of an outstanding legal estate, which prevents an action at law.

But upon principle and authority there is an inherent equity on the part of the devisee, whether legal or equitable, arising from the mere fact of the devise, to have the will established against the heir.

An averment in such a bill, that A. claims to be heir of the testator, supported by a statement that he has sued in that character in Ireland, and succeeded, is sufficient.

That the legal estate has been conveyed by the Plaintiff to his own trustee since the testator's death cannot give any equity to sustain such a bill. Boyse v. Rossborough,

EVIDENCE.

See COPYHOLDS, 2.

LIMITATION OF ACTIONS, 2.
POWER OF APPOINTMENT, 2.
WILL, 2.

71

1. In support of an application, that creditors whose dividends are less than 10. may have their shares of a fund in Court paid out to their solicitor, there must be produced the written consent of the several creditors, verified by affidavit. Downing v. Picken, App. i

2. The Plaintiff moved, that a solicitor might be appointed to examine witnesses residing more than twenty miles from London:-Held, that the application might be made by motion in Court instead of at Chambers; and that, in case of witnesses residing so far from London, the old practice was unchanged; but the evidence in this case being special, a barrister, to be chosen by both parties, must be the examiner. Costs to be costs in the cause. Reed v. Prest, App. xiv

3. In a suit by a mortgagee to redeem prior mortgages and for a sale, the mortgagor, by his answer, disputed the validity of the Plaintiff's

mortgage, on the ground that the execution of it by the mortgagor had been obtained by a fraud concocted between one of the attesting witnesses to the deed and other persons, and without the Plaintiff knowing the contents of it. The Defendant had elected to have the evidence in the cause taken orally. The Plaintiff, not being able to obtain an appointment before the Examiner for some time, moved that he might be at liberty at the hearing to prove his mortgage deed by affidavit:-Held, that, as the answer impeached the deed in this manner, it could not be proved as an exhibit at the hearing, and, as the witnesses would probably be cross-examined, no time would be saved by the proposed course; and, therefore, the motion was refused; and as, if granted, it would have been an indulgence, it was refused with costs.

The advantage of having witnesses produced for examination and seeing their demeanour is a right of which the Court will not deprive the parties. Hitchcock v. Carew, App. xiv

4. Upon a motion for an injunction, the Defendant, asking for time to answer affidavits, was put upon terms to file his affidavits in two days, an interim injunction being granted until the next seal. He then applied for an order appointing a special examiner, and directing the Plaintiff, who had made an affidavit in support of the motion, to attend on the next day without further notice before such special examiner, to be cross-examined upon his affidavit: -Held, that the Plaintiff, upon an interlocutory motion for an injunction, was under the control of the Court, and that the indulgence which was asked was only to enable the Defendant to do what he could have done without any order, if the examiner had been at liberty; and the application was accordingly granted.

Held, also, that the Plaintiff should have the like liberty of cross-examining the Defendant upon an affidavit by him, denying a simple fact alleged by the Plaintiff, and made for the purpose of gaining time; and that the Defendant would not be prevented by such cross-examination and his own re-examination from afterwards filing further affidavits. Besemeres v. Besemeres, App. xvii

5. Affidavits as to matters directly in issue in the cause, which are filed after the filing of the certificate of the Judge's Clerk, will not be admitted at the hearing on further consideration; but, if necessary, upon the suggestion of counsel, an inquiry may be directed. Fleming v. East, App. lii.

ESCROW.

See POWER OF APPOINTMENT, 2.

EXCEPTION.

See LEASEHOLDS, 1.

It is not necessary now, in every case, to insert a' charge of documents in a bill as a foundation for the usual interrogatory concerning them.

Exceptions to an answer to the interrogatory concerning documents are now unnecessary, because the discovery may be enforced in Chambers. Perry v. Turpin, App. xlix

EXONERATION.

The owner in fee simple of certain hereditaments settled them by a voluntary deed to such uses as he should appoint, and, subject thereto, to himself for life, with remainders over. Subsequently, he exercised his power of appointment by a deed mortgaging the estate for 15,000., and he covenanted in that deed for payment of the mortgage debt and interest. He then died, having made

FRIENDLY SOCIETIES. Under the Friendly Societies Acts, and particularly under 10 Geo. 4, c. 56, s. 15, after a society within their provisions has been dissolved, though its affairs are not wound up, the Court of Chancery has no jurisdiction upon petition to appoint a person to convey or assure property in the possession of a trustee, who refuses to concur with his co-trustees in realising it, for the purpose of having it distributed among the members. In re The Eclipse Mutual Benefit Association, App. xxx

INFANTS.

See TRUSTEE AND CESTUI QUE TRUST.

INDIA. See DOMICIL.

INJUNCTION.

See ACCOUNT.

COVENANT.

CREDITOR'S SUIT.
MINES, 2.

MUNICIPAL CORPORATION.
SURETY.

1. A vendor entered into agreements, by deed, to sell to A., B., and

C., certain land, in lots, for building purposes, reserving to himself a portion. Each deed of agreement contained covenants between the vendor and purchasers respectively, and amongst others, that the purchasers should, within a certain time, erect dwelling-houses upon their respective lots, in an uniform row, in a certain specified position; and that no building should be erected on the piece of ground in front of each house, which was to be laid out as a garden; and that the vendor would dispose of all the lots subject to the same conditions as to building; and that, in case the vendor should build upon the portion reserved by him, he would build in a line with the other houses, and would keep a similar piece of land in front for a garden.

com

Before the contracts were pleted by conveyance, the vendor sold and conveyed the reserved land to J., and the deed of conveyance recited the said sales, and contained a covenant by the vendor, that, in the conveyances to A., B., and C., he would require them to enter into covenants with J., similar to their covenants in the agreements. J. also thereby covenanted with the vendor, that, if he should build on the land purchased by him, he would build within the line, and would keep the said piece of ground in front as a garden. Subsequently the land purchased by A. was conveyed to him by a deed, in which A. entered into the same covenants as he had entered into in the deed of agreement. After divers mesne assignments, the land purchased by J. became vested in the Defendants, with notice of the agreements and of J's covenants in his purchase deed; and the land of A. came in like manner to the Plaintiff:-Held, that, whether the covenants ran with the land or not, as

the Defendants had notice of them, the Plaintiff might have an injunction to restrain the Defendants from building in a manner contrary to the general scheme for the benefit of all the original parties. Coles v. Sims, 56

2. Land having been laid out for building, and streets projected across it, the Defendant bought one plot with a right of way over the projected streets, the vendors reserving a similar privilege over the street in front of the plot sold; and the Defendant covenanted with the vendors, that he would not erect any building on the said plot within the distance of six feet from the intended streets:-Held, that the erection of a wall fifteen feet high, at right angles to the principal street, and extending quite up to it, was an infringement of this covenant; but, that it was not broken by the projection a few inches too far of the lower part of the wall of a house, nor by a brick porch which came forward one foot within the limit.

Held, also, that a subsequent purchaser of a neighbouring portion of the land might obtain an injunction against the first purchaser, to restrain him from infringing his covenant; and this, whether the Plaintiff, at the time of his purchase, knew of the existence of the Defendant's covenant or not, as the Plaintiff must be taken to have bought all the rights connected with his portion of the land, especially if he has bound himself by a similar covenant.

It is no objection, in such a case, that the vendor has not entered into reciprocal covenants with the purchaser, such as, to subject the purchasers of the remaining land to like obligations respecting their plots; for the conveyance of the land was a sufficient reciprocal advantage to support the covenant.