Moore v. Vinten.

The testator died in January, 1836. His widow remained in possession of the real estate during her life, and died in August, 1837.

In February, 1836, Esther Gregson alone proved the testator's will. The other executors did not renounce probate, but they never interfered in the testator's affairs, and executed a deed of disclaimer of the trusts of the real estate.

In July, 1836, Esther Gregson married Thomas Vinten, who, in December, 1837, absconded, and had never been since heard of.

It appeared that part of the testator's real estate, which consisted of several houses and gardens, had been sold since Mrs. Vinten's marriage, and the money received by her husband; and he had absconded with it.

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*The object of the bill was to have the remainder of the property sold, and the produce secured for the parties entitled to it.

The cause now came on for hearing; and, in support of the case made, by the bill, as to the absconding, continued absence and impossibility of finding the husband, the wife's answer and also an affidavit of search was read; and the only question was, what order could be made with reference to the execution of the trust for sale.

Mr. Wakefield and Mr. Collyer, for the plaintiff:-The husband being a trustee within the 19th section of the 11 Geo. 4 & 1 Will. 4, c. 60, it is competent for the court, under the 24th section, to receive proof, by affidavit, that the husband cannot be found: De Crespigny v. Ketson.(a)-[The Vice-Chancellor: There is no doubt about that: I settled the practice in that case.]--Then, the husband being a trustee within the meaning of the Act, and

(a) In Chan. Aug. 1839.

Moore v. Vinten.

it being unknown whether he be living or dead, the court will appoint a person to convey in his room, under the 8th section; and will do so by the same decree which declares him to be a trustee.(a) That a person who is merely a trustee by operation of law and who cannot be found, may be declared a trustee, under the Act, for the sole purpose of appointing a person to convey in his room under the 8th section, is apparent from Beale v. Ridge.(b)

Mr. G. Richards and Mr. Selwyn appeared for Mrs. Vinten, and offered no opposition.

*THE VICE-CHANCELLOR:-I doubt whether you can [*164] bring the husband within the 8th section of the Act.

In order to do this, you must show that he is the trustee "last known to have been seised:" but, here, there is a joint seisin in the husband and wife. You had better simply take a decree for sale, and let the husband be declared a trustee within the meaning of the Act. Perhaps you will hear of him again, before a conveyance is required; and then all further difficulty will be at an end.

(a) See Walton v. Merry, ante, Vol. VI., p. 328.

(b) 4 Y. & C. 248, cited.

CASES IN CHANCERY,

BEFORE THE

VICE-CHANCELLOR.

HEMINGWAY v. FERNANDES.

Practice.-New Orders.-Plaintiff.-Amended bill.

1841 3d June.

Although a plaintiff has amended his bill under au order not expressing that he does not require a further answer, he may (if no answer is filed within the time allowed by the 10th Order of 1833, and he thinks proper to waive the further answer) file a replication under the 14th Order, although that order applies, in terms, to those cases only in which the order to amend expresses that no further answer is required.

By the 10th General Order of 1833, a defendant is allowed five weeks in a town cause and seven weeks in a country cause, to plead, answer or demur, not demurring alone, to an amended bill to which the plaintiff requires an answer: and, under the 14th General Order, if a plaintiff obtains an order to amend without requiring a further answer, (a) and amends accordingly, he is at liberty, after the expiration of eight days, to file a replication or set down the cause for hearing on bill and answer, unless the defendant has previously served an order for time to answer, or taken out and served a warrant for time to answer the amended bill.

(a) If the plaintiff does not require a further answer, the order to amend ought to contain a statement to that effect; otherwise it is irregular. Boddington v. Woodley, ante, vol. IX, p. 380.

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Hemingway v. Fernandes.

*In this case the plaintiff amended his bill under an order which did not express that the defendant was not required to answer the amendments; and afterwards served the defendant with a subpoena to answer the amended bill. The defendant, however, did not file his answer within the time prescribed by the 10th Order: whereupon the plaintiff filed a replication.

Mr. Knight Bruce and Mr. Loftus Wigram, for the defendant, now moved that the replication might be taken off the file, for irregularity, and that the defendant might be at liberty to file his answer to the amended bill. They said that the plaintiff was not at liberty to proceed in the manner pointed out by the 14th Order; as that order applied to a case where the plaintiff did not require a further answer: and not to a case like the present, where the order to amend did not express that the plaintiff did not require a further answer; and that the plaintiff, instead of filing a replication, ought to have proceeded to compel the defendant to answer the amendments, by process of contempt.

Mr. Bethell and Mr. Shadwell, for the plaintiff.

THE VICE-CHANCELLOR:-As the defendant neither put in his answer within the seven weeks, nor obtained an order for further time to answer at the expiration of that period, I think that the plaintiff was at liberty to take the course which he has adopted: but, as this appears to be a new case, I shall allow the defendant a fortnight to put in his answer: he must, however, pay the costs of the application.

[Reg. Lib. A. 1840, fo. 895.