1864. PHILLIPS v. EDWARDS. before B. has accepted it and before B. has also thereby bound himself to perform it. But nothing of that sort occurred here; and if the most formal contract had been prepared and signed by the Defendants, and given to their agent to be delivered to the Plaintiffs, they or either of them might have stopped the whole thing before the document left their agents' hands. But if this be not a contract, what is it? If it be anything at all, it is a legal demise of the property; if it be not, then it is nothing. If it be a legal demise of the property, then the proper remedy of the lessee would be by action at law. That any action could be maintained at law, either of ejectment to obtain possession of the land, or of detinue to obtain possession of the indenture, or of damages for the injury sustained by the Plaintiffs, is what I am far from expressing to be my opinion. But as I am strongly of opinion that there is no contract, and that there is no parol agreement partially performed which can entitle the Plaintiffs to recover in this case, it only remains to be considered, whether the Plaintiff is entitled to have the deed delivered up to him by the decree of a Court of Chancery, notwithstanding the opposition of the Defendant Mrs. Edwards. It is true, as it is argued for the Plaintiffs, that there are some cases in which a grantor executes a deed, which is valid and binding on him though he retains it in his own custody and does not part with it, of which many instances, such as Fletcher v. Fletcher (a), are to be found in the books; but the deed has not been held to be valid in any case where the deed implies mutuality, that is when some important act is to be done (a) 4 Hare, 64. done by or on the part of the person to whom it is to be delivered, such as the payment of purchase-money or the execution of the counterpart. In all such cases, the deed is executed as an escrow, and has no force or validity until the actual delivery of it to the person who has to perform the act in return. I do not say, that in every case the performance of the act, on his part, is necessary to give the deed validity, for the act may be waived; but even in those cases the delivery must be made to him or his agent. If A., by parol, agrees to sell Whiteacre for 1,000l. to B., A. executes the deed of conveyance, and gives it to his solicitor to be delivered to B. in exchange for 1,000l. B. never pays the 1,000l., and never gets the deed. I am of opinion, the execution of the deed by A., and the delivery of it by him to his solicitor does not, in that event, transfer the legal estate in the land to B.; but that A. may, as soon as it appears that B. will not or cannot pay the purchase-money, cut off the seal and signature, and get the stamp allowed as a spoiled stamp at Somerset House; and that the deed is then a mere piece of waste parchment, conferring no right on any one. That is what occurs in this case; and the bill must be dismissed with costs. 1864. PHILLIPS บ. EDWARDS. 1864. Mar. 10. The Plaintiff relieved from the necessity of filing a printed bill; in an injunction case, where the matters of the THIS GARLAND v. RIORDAN. HIS being an injunction case, a written bill only had been filed. The Court had granted an interim injunction to last until to-day. Mr. Roberts now stated, that the parties had agreed on an order to be made, which would dispose of the case; and he asked that the Court would dispense with under an order the necessity of filing a printed bill, for otherwise, under made prior to suit had been arranged the expiration the 9th General Order, r. 4, the written bill would be of fourteen days from filing the written bill. taken off the file as of course, and the solicitor would be liable for costs, upon his undertaking. Mr. Hallett, for the Defendant, assented to the order and application. The MASTER of the ROLLS thought that the necessity of filing a printed bill might be dispensed with, and he ordered it accordingly. 1864. THE PRESIDENT OF THE UNITED STATES OF AMERICA v. DRUMMOND. April 16, 19. THE question which arose upon this petition was, A person, whether legacy duty was payable on the property of Henry Lewis Dickenson, deceased. He had been an officer in the English army, but had sold out in 1810. He had resided the latter years of his life in France, and died at Paris on the 17th of July, 1819. whose name was English, but whose domicil of origin was not shewn, held a commission in the English army. He sold out in 1810, and subsequently resided, down By his will, dated at Paris on the day of his death, to his death, he bequeathed as follows: in "I give and bequeath the whole of my property whatsoever to my brother James Smithson, Esq., trust to be disposed of as follows:-I give to Mrs. Mary Ann Coates (going by my name, and the mother of my son Henry James Dickenson, placed at the school of M. Auboin, at Bourg la Reine) the half of the income which my property shall produce, to be enjoyed by her during the term of her natural life." He then gave the remainder of his property to his son. in France, French con- there he edu there he died; and his whole property was in French Rentes: Held, that his death was French, and that legacy duty was not his domicil at assets. His will was proved in England in 1820 by James payable on his Smithson, his property in this country being sworn under 207. In fact the whole of his property was in France and consisted nearly entirely of French Rentes. His brother James Smithson died in 1829, and by his will, dated in 1826, he described the son of Henry Lewis VOL. XXXIII-III. G G 1864. THE PRESIDENT OF Lewis Dickenson as "the son of my late brother A claim for legacy duty on the property of Henry OF AMERICA Lewis Dickinson having been made, on behalf of the STATES v. DRUMMOND. Crown, against the estate of James Smithson, which was administered in this Court, a petition was presented by his legal personal representatives, asking that it might be declared whether any duty was payable. Mr. Nalder for the Petitioners. Mr. Hanson, for the Crown, argued that the fact of the testator having been an officer in the English service at once fixed his domicil in England, and that it required proof of the fact and of his intention to change it, which the evidence failed to prove. He referred to Ommaney v. Bingham (a); Phillimore on Domicil (b); Lyall v. Paton (c); Forbes v. Forbes (d); Attorney-General v. Dunn (e); Hodgson v. De Beauchesne (f); In re Steer (g); Stanley v. Bernes (h); Munroe v. Douglas (i); Moorhouse v. Lord (k); Bremer v. Freeman (1). Mr. Baggallay and Mr. Cates, for the Plaintiff, argued that the residence in France continued for a considerable period and down to the testator's death, and that the circumstance of his whole property and family being there, were prima facie evidence of the domicil of the testator being in France, and that this was not rebutted by any evidence (a) 5 Ves. 757. (b) Page 72. (c) 25 Law J. (Ch.) 746. (e) 6 Mee. & W. 511. (f) 12 Moor, P. C. C. 285. (g) 3 Hurl. & N. 594. (i) 5 Mad, 379. (k) 10 H. of L. Cas. 272. |