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![handle is hein.slavery/ssactsengr0805 and id is 1 raw text is: A.-G. V. MILL [i83VG]N
When the estate was put up to sale, it was purchased by a Mr. Rice, who bought
in his own name; but it was in trust for Mullins, the Plaintiff in the suit; and it
is clear upon the evidence, that the estate was sold for a sum far less than the value
at the time of the sale.
After the sale, an application was made to the Court by the tenant for life in re-
mainder to set aside the purchase, and that a new sale of the estate might be directed.
According to the practice of the Court of Exchequer in Ireland, such an order might
have been obtained. But some delay having occurred in the hearing of the case,
on account of the absence of the purchaser, an opportunity was offered for arrange-
ment between the parties ; and the tenant for life in remainder agreed with Mullins
to withdraw his objection upon the terms of obtaining for himself a sun of £500, and
for his solicitor £100. The application for the new sale was then carried on as a matter
of form, but was not effectually prosecuted; and was ultimately abandoned.
When these facts were brought before the Court below by the Plaintiff in the
suit, the Court was of opinion that this transaction was a fraud upon the persons
entitled to the inheritance, who were then infants of a very tender age ; and the
proceeding was the more objectionable, because the trustees of the inheritance were
not parties to the suit. The bill in the present suit, the immediate [592] subject
of appeal, was filed by the first tenant in tail in remainder as soon as he came of age,
for the purpose of setting aside the decree so far as it related to the purchase in trust
for Mullins.
. It has been objected here and below that the suit was not prosecuted with due
diligence. The suit was instituted in 1808, and was not effectively prosecuted till
1823. But that objection was hardly competent to the Defendant Mullins, who
had an opportunity, at any time during that interval, of procuring an order to dismiss
the bill. And moreover there was an excuse for the Plaintiff, who was in the army
on service abroad. There is therefore no valid objection to the claim of the Respondent
on the ground of delay.
Another objection was argued on behalf of the Appellant, that there was a defect
of parties to the suit. It was alleged in the bill, that these parties were out of the
jurisdiction. On the other hand it was contended, that there was no evidence of
that allegation; but this objection ought to have been made in the Court below.
It is too late to make it, in the first instance, when the cause comes before the House
on appeal. The form of the decree furnished a third ground of objection ; viz., that
the account was only to be taken from the death of the tenant for life in remainder.
But that is a mode of framing the decree, which is advantageous to the Appellants ;
and if it were otherwise, it could not be required that the matter should be unravelled
from the beginning : it was only necessary that the transaction should be examined
from the death of the second tenant for life in remainder, that is, from the coin-
mencement of the interest of the Respondent.
Decree affirmed.
[593] ENGLAND.
COURT OF CHANCERY.
The ATTORNEY-GENERAL,-Apjpellant; GEO. GAVIN BROWNE MILL, JOHN MILL,
and PAT. BARTLETT,-espOondents: The ATTORNEY-GENERAL, on the
Relation of WILLIAM JAMESON, Provost of the Burgh of Montrose, and
G. SHAND, D. SKINNER, and J. BIRNIE, Baillies of the said Burgh, and JoHN
MACGREGOR, the Dean of Guild of the said Burgh,-Appellants; GEORGE
GAVIN BROWNE MILL, and GEORGE MILL NICIOLSON,- eSponde ds: The
ATTORNEY-CENERAL, etc.,-Apeilands; (EORGE AVIN BRPOWNE MILL,
and (EORG MIri NIC:lSON,-Respondens: and JOTN MILL, PATRICK
439
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