Davis v Prout
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1843 |
| Date | 01 January 1843 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 1063
ROLLS COURT
[256] davis v. peout. Nov. 10, Dec. 11, 1843. Where, at the hearing, a cause stands over, with liberty to amend, and the bill is amended accordingly, a new subpoena to hear judgment must be served. This caute came on upon the 10th of November 1843 ; on which occasion, the Defendant Front did not appear, but a proper affidavit of service of the subpcena to hear judgment wag produced. The other Defendants who appeared having objected to the frame of the record, the cause was ordered to stand over with liberty to amend. The bill was accordingly amended, and the cause again came on for hearing on the llth of December, but no new subpoena to hear judgment had been served. The Registrar observed that the cause could not proceed, there being no proof of service on Prout of a new subpoena to hear judgment. the master of the rolls considered the objection valid, observing that if the other Defendants had not voluntarily appeared, the Plaintiff could not have obtained a decree against them, upon proof of the service of the former subpoena to hear judgment.
English Reports Citation: 49 E.R. 1076
ROLLS COURT
See Butler v. Butler, 1885, 16 Q B. D. 377.
1076 DAVIS V. PEOUT 7BEAV.J88. [288] davis v. prout. Nov. 9, 10, Dec. 11, 1843; Jan. 27, Feb. 13, 1844. [See Butler v. Butler, 1885, 16 Q. B. D. 377.] Property was given in trust " for the sole and absolute use " of a female infant. She afterwards married under age, and a settlement was made giving half to the wife for her separate use, and the other half to the husband. A bill was filed by the husband and wife, after the latter had come of age, against the trustees, seeking to charge them with a breach of trust. The Court thought the frame of the suit improper, but gave leave to amend; and the wife being, by amendment, made to sue by her next friend, a decree was made. After publication, a bill filed by husband and wife was amended by making the wife sue by her next friend. Held, that the evidence was still receivable. The testator, by his will dated in 1819, devised, &c., some real and personal estate to trustees, upon trust " for the sole and absolute use of his daughter Mary Ann Prout," in case she should attain twenty-one, with maintenance in the meantime, and with a gift over in case she should die before she attained twenty-one. The testator died shortly after. In 1839 the Plaintiff Mr. Davis married Mary Arm Prout, then a minor, and a settlement was thereupon made, whereby they covenanted to convey the property of Mary Ann Prout to trustees, upon...
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