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NEALE v. HAGTHROP. 551
demurrer; because if there were no other of more substantial ob-
jections to this bill, the case would be ordered to stand over with
leave to amend and make proper parties; but as the other objec-
tions go to the substance and merits of the complaint, the case
must be now finally decided.
Whereupon it is Decreed, that the plaintiff's bill of complaint be
and the same is hereby dismissed with costs, to be taxed by the
register.
See this case as disposed of by the Court of Appeals, 6 G. &
J. 49.
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NEALE v. HAGTHROP.
On a bill for relief, discovery, and account, the right of the plaintiff must be first
decided; after which an account may be taken; and if the relief required be the
sale or delivery of a thing with its rents and profits during the time of its unjust
detention, the delivery or sale should be first ordered, and then an account up to
the time of such sale or delivery.
An administrator de bonis non can recover only such assets as have not been con-
verted or distributed by his predecessor, —Although the next of kin of an intes-
tate have a vested interest in the surplus of his personal estate, they can only
make title, or recover from or through an administrator. —Statements in the bill
or answer as to agreements with persons not parties to the suit, the nature and
validity of which agreements are not drawn in question; and all careless verbiage
may be rejected as mere surplusage.
The answer of a defendant is taken for true so far as it is responsive to the bill,
unless disproved. —Its allegations of fact not responsive, but in avoidance must
be proved. —If a defendant submits to answer at all, he must answer fully and
particularly. —Any material allegation lett unanswered may, at the hearing, be
taken for true. —Where a defendant declares, that he is entirely ignorant of the
matters stated in the bill and leaves the defendant to make out his case, or in
words to that effect, and the plaintiff replies, the allegations of the bill are thus
put in issue and must be proved.
A deed by which a father conveyed all his personal estate to his son, upon condi-
tion, that the son should pay certain specified debts due by the father, Held to
give rise to a resulting trust in favour of the father, so as to require the son to
shew, that the specified debts of the father had been paid; and to give the repre-
sentative of the father a right to relief and an account.
A purchaser for a valuable consideration without notice will not be disturbed, —
What is notice ?—Where a bill prays relief against several on the ground, that
the deed tinder which they all claim is fraudulent, and one dies, the suit abates
as to all.
THIS bill was filed on the 15th of December, 1820, by James
Neale, administrator de bonis non of Anthony Hook, deceased,
against Edward Hagthrop and Barbara his wife, administratrix of
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