justice, to a defendant giving a discovery in order to found a relief at law. The question, whether he shall answer improper enquiries, being out of the case, I think he cannot bar the plaintiff from giving him the trouble of an answer. Where the bill is for relief, the discovery is merely ancillary to the relief; therefore, if the defendant can shew that, without going further, there is one point which will bar the relief, the Court will first look into that point. The Court there takes the plea as the first method of getting at that justice which the subject has a right to obtain. Where the remedy is legal, to let the defendant refuse the discovery, is putting matters out of their train; for the Court can ultimately do nothing as to the remedy. If the bill be for equitable relief, and the plea be over-ruled, the defendant has this objection, that the Court has put him to a great expence, [11] in going through a cause, where he had brought it to a point which ought to have decided it in his favour. In the same case, if the remedy is at law, he has only to complain that he has been put to the expence and trouble of putting in a longer answer. As to the expence of the copy and answer, that the Court exempts him from; for the moment the answer comes in, he must be paid all the expence he has been at: and, as to the trouble, the Court cannot relieve him from that; therefore I think myself founded in declaring, that where the bill is for a discovery leading to relief at law, the defendant cannot plead, in bar here to the discovery, what will be a bar to the relief there. Plea and exceptions over-ruled. (Reg. Lib. 1785, A. fol. 27.) KEMPE against ANTILL. 1785. The loyalists estates in America were, under the forfeiting acts to be sold for the payment of debts.-This no ground for an injunction to restrain an action here on a bond. (Vide Wright v. Simpson, 6 Ves. 714, &c., contra to Wright v. Nutt, 3 Bro. C. G. 326.) Motion for an injunction upon the merits, upon the coming in of the defendant's answer. 66 The bill stated, that in the year 1759, the plaintiff was appointed to the offices of Attorney and Advocate General for the province of New York in North America, and continued to exercise those offices, until the cession of independence to the Thirteen United States of America, by the treaty of peace in 1783 and was possessed of very considerable personal property in the provinces of New York and New Jersey. That, during the disturbances in America, the plaintiff was attached to the sovereignty of Great Britain over the revolted provinces.-That in July 1776, the insurgents of the several revolted provinces declared themselves independent states.-That on the 11th December 1778, the inhabitants of the province of New Jersey passed an act, intituled "An act for forfeiting to, and vesting in, the state of New Jersey, the real estate "of certain fugitives and offenders, and for directing the mode of determining and satisfying the lawful debts, and demands which may be due from, or made against "such fugitives and offenders, and for other purposes therein mentioned," whereby, after enacting, that all the real and [12] personal estate of persons who should be convicted, upon inquisition to be found in manner as therein mentioned, should be confiscated, and vested in the States, and be sold, by commissioners therein named, and the persons themselves be adjudged guilty of high treason, the said act proceeded to recite, "That whereas divers persons might have just demands against the offenders whose estates were or should be forfeited to, and vested in, that State; and it being "highly reasonable that such demands should be adjusted and paid, so far forth as the estates of such offenders respectively would answer and discharge the same: "it was therefore, by that act, enacted, that the Court of Common Pleas, in each respective county should, and they were thereby empowered and directed to receive all such demands as might be made against the offenders whose estates forfeited "might be in such county, which demands should be exhibited in writing, fairly stated, within one year after the sale of the estate of the person against whom such demands "might be made, and, for that purpose the commissioners who should sell and dispose of such respective estates, should within one month after the sale of the same give notice, "by advertisement in the New Jersey Gazette, &c., to all persons concerned, to exhibit their demands as aforesaid, before the expiration of the term limited for that end, "and the claimants should respectively be intitled to subpoenas from the said Court, "for all such witnesses as they might think necessary to support their respective 66 66 * demands, and all costs that might attend the settlement of such demands, should be "taxed by the court, and the said demands, being received and settled by the court as * aforesaid, should be transmitted by the court to the treasurer of the state, who should, within three months after the time limited for making such demands, pay to * such persons the sum adjudged to be due, if the estate should be sufficient; if not, a proportional dividend to each such person." That an inquisition was found against the plaintiff, in pursuance of the said act, in New Jersey; and that like proceedings were had in New York. That, by the means aforesaid, the plaintiff was deprived of all his property, for the benefit of his creditors, and of the estates aforesaid, to the amount of many thousand pounds, which were much more than sufficient to pay all his debts; that, upon the cession of independence to the Thirteen United States, the plaintiff was deprived of his offices of Attorney and Advocate General ; and obliged to take refuge in this kingdom. [13] That upon the 17th November 1769, plaintiff and one John Weatherhead became jointly and severally bound to Alexander Colden, to secure the payment of £200 currency and interest that the said Alexander Colden, in his life-time, or the defendant Antill who claims to be his surviving executor, might have claimed, and still may claim the said debt, under some of the said acts, and obtain satisfaction for the same; or, if the said Alexander Colden died before the acts of confiscation, or if the said defendant was in any way disabled from making such claim, yet the persons beneficially intitled under the will of Alexander Colden were, at the time of passing the said act, subjects of the American States, and might have claimed the same. That such confiscated fund, being made expressly liable to payment of the plaintiff's debts, and being much more than sufficient for that purpose, it is against equity and good conscience that the defendant should put in suit the said bond against the plaintiff, instead of resorting to such fund for payment thereof, notwithstanding which the defendant has commenced an action against the plaintiff, in the Court of B. R. Westminster.-The bill therefore prayed an injunction. The defendant, by his answer, admitted the general facts stated by the bill, and that the obligee Alexander Colden died before the disturbances broke out in America, and that the defendant, having taken part against the Americans, became equally obnoxious with the plaintiff; in consequence whereof he was obliged to quit that country, and take refuge in this, and his estates were, as he believed, since confiscated, and himself declared guilty of high-treason. Mr. Madocks, Mr. Scott, and Mr. Phineas Bond for the plaintiff. All persons who had any claims upon the confiscated estates, had it in their power to apply to the Court of Common Pleas, to enforce the execution of the act for the sale of the confiscated estates. This appears from the act of assembly. It is also admitted, that the plaintiff's estates were sufficient to pay the debts, with a considerable surplus. The defendant qualified as executor in New Jersey. His co-executor qualified with him, but is since dead; and the persons who are actually interested are now resident in New York, and, one executor being dead, and the other absent, may take out administration to the testator, and compel the execution of the act. The excuse set up [14] is, that the defendant is a delinquent, under the law of New York, and therefore cannot sue there: but this is answered. In the present case, the bond is in the state of a satisfied bond, because the government there have taken possession of the estate, which is the fund to pay the debt. He had it in his power to have enforced the payment. It is like the case of a creditor who has it in his power to obtain payment from the proper fund, and refuses so to do; he shall not have further remedy. At all events, he had an election as to his fund, and it is against the law of nature for him to sue the plaintiff instead of the estate, as the plaintiff never can recover against the government there. Lord Chancellor [Thurlow]. It is impossible for the court to relieve the plaintiff against the acknowledged right of the defendant to sue. If this case had been made out, to the extent that a loyal subject of the American States had made himself party to the confiscation of this property, and had, under that commission, money in his hands, applicable to the payment of this demand, and yet maliciously sued the plaintiff, it would bear an argument. But can it be argued here that he has a right in a particular fund and, if not so, how can it be consonant with natural justice, to prevent him from suing upon a contract, in its own nature transitory. The motion stood over at the desire of the plaintiff's counsel, in order to consider the matter; but they afterwards gave it up, and the money was paid. (No Entry.) ACTON against MARKET. Lincoln's Inn Hall, 5th Dec. [1785]. Where a defendant has obtained a verdict at law, and an injunction bill is filed against him whilst out of the kingdom, the plaintiff in equity cannot sustain an injunction against him unless he pay the money into Court. (S. P. Sherwood v. White, 1 Bro. C. C. 452. Culley v. Hickling, 2 Bro. C. C. 182, and Potts v. Buller, 1 Cox, 330, &c.) Defendant having recovered a verdict at law against plaintiff, the plaintiff filed a bill for an injunction, and the defendant being in the East Indies, an injunction was of course obtained for want of an answer. It was now moved, on the part of the defendant, that the plaintiff should, by a certain day, bring the money recovered into court, otherwise the injunction should be dissolved. This was objected to as a new [15] application (but see Sherwood v. White, 1 Bro. C. C. 452); but Lord Chancellor thinking it reasonable, granted the motion. (Reg. Lib. 1785, A. fol. 46.) ROWLEY against RIDLEY. [Dec. 9, 1875.] Interrogatories to falsify an examination. An order having been obtained for the examination of certain persons before the Master, pro interesse suo, liberty was now moved for to exhibit interrogatories before the Master, to falsify their examination, and ordered, as of course, without notice. (Reg. Lib. 1785, B. fol. 22 b.) Ex parte MARLIN. Lincoln's Inn Hall, 21st Jan. 1785. Where partnerships have commenced at different times; upon a bankruptcy of all, the court will direct separate accounts, and that each estate shall first bear its own debts. (Note: This is now done under the general order of the 8th of March 1794.) In 1771, Thomas Pettit had separate creditors. In 1772, Pettit and Flight became partners. In 1781, Pettit, Flight, and Runnington, became partners. In November 1785, a commission of bankruptcy issued against the last three. This was a petition for separate accounts of the three estates. Granted: though the Court did not know any instance of dealing in the firm of two partners forming part of the firm of three. Copy of the minute of the order. I do order that it be referred to the major part of the commissioners named in the commission issued against the said bankrupts Thomas Pettit, John Runnington, and Richard Flight, to keep distinct accounts of the joint estate and effects of the said bankrupts Thomas Pettit, John Runnington, and Richard Flight, and of the joint-estate and effects of the said Thomas Pettit and Richard Flight, and of the respective separate estate and effects of each of the said three bankrupts, and that the several creditors on each of the said several estates, be admitted to prove their respective debts under the said commission, against the said bankrupts [16] Thomas Pettit, John Runnington, and Richard Flight, and that each of the said respective estates be applied in satisfaction of the creditors of each respective estate, and the surplus, if any, of each respective estate, after full payment and satisfaction of the debts on such estate, be carried over to, and constitute part of, the joint estates of the said bankrupts Thomas Pettit, John Runnington, and Richard Flight, and let costs of this application be paid out of the joint estates of the said three bankrupts, and let the costs of keeping the said several distinct accounts hereby directed be borne and paid out of each of the said respective estates, according to the proportions which, in the judgment of the said commissioners, the same ought to be borne and paid by each of the said estates. [17] HILARY TERM, 26 GEO. 3, 1786. HOLWORTHY against ALLEN. [1786.] S. C. 1 Cox, 202. Quod vide.-Court will not, upon motion, discharge a person in execution for costs upon a demand arising to him upon the person to whom he is in execution. Allen took Holworthy in execution for costs; afterwards Holworthy, as executor, became entitled to a demand on Allen, superior to that for which he was in execution. Mr. Hollist moved, on this ground, that he might be discharged. Lord Chancellor [Thurlow] said, two questions arose; 1st, Whether the Court could adjust such demands; 2d, Whether it could be done upon motion. The costs have been taxed on one side, and the party taken into custody. On the other side, a demand has arisen against the party to whom he is in execution. It is in the nature of a set off. The Court never has done this upon motion; it is besides only upon equitable grounds, as, under the statute of set-off, it could not be done. (See 1 Cox, 202. There was no entry in R. L. on this occasion; but, from a subsequent entry, it appears the matter was soon after wards compromised.) HENLEY against AXE. [1786.] Bill to set aside an agreement for an annuity (which had been paid) during the uncle's life in consideration of a sum payable at his death, sans issue, dismissed. A bill filed to set aside an agreement for an annuity, upon payment of a fair consideration. It had been referred to the Master, and, upon his report, the circumstances appeared to be these: The plaintiff, being twenty-three years of age, and entitled to an estate upon the death, without issue, of an uncle, of the age [18] of fifty-two years; the uncle, being at the time unmarried, and a lunatic, without any probability of having issue, the defendant granted to him an annuity of £200 per annum, during the joint lives of himself and his uncle, in consideration of £6000 to be paid by the plaintiff to the defendant, six months after the death of the uncle without issue; and in case of the death of the plaintiff before the uncle, or of the uncle's leaving issue, the defendant was to lose his money. The annuity had been paid during the uncle's life, who was now dead without issue. It came on now for further directions upon the Master's report, when the defendant's counsel prayed that the bill should be dismissed. Lord Chancellor [Thurlow] said, It must be so. There has been a good bargain; but, although I cannot encourage such agreements, I cannot set them aside but upon broad grounds. Bill dismissed without costs. (No Entry.) DANVERS against MANNING. [24 & 25 January 1786.] [S. C. 1 Cox, 203.]-Testator gave certain legacies in stock, he then gave others without that addition, he then gave legacies, and directed stock to the amount to be sold, this made all the legacies, legacies of stock. [The testator having miscalculated what would be left of a particular sum, and given it as such [supposed]" remaining sum to A. for life; she was held entitled to the real sum which was actually left remaining. (See 1 Cox, 203, 204.)] Francis Degen, late of Hammersmith, in the parish of Fulham, in the county of Middlesex, merchant, deceased, being at his death possessed of a considerable estate, consisting (amongst other things) of 4 per cent. bank annuities, 3 per cent. bank annuities, and other public funds, duly made his last will in his own hand-writing, dated 19th March 1783, whereby he gave all his estate, real and personal, unto defendants William Manning the elder, John Danvers the elder, and William Hodge, in trust, for the following uses : he gave to Mrs. Catharine Foljambe, of Hammersmith, widow (amongst other things), the interest of £6000 3 per cent. consol. Bank annuities, with the interest of £1000 in the Royal Exchange assurance, with £36 a year more, 3 per cent. Bank long annuities for life only ("to commence as it came due after his decease." R. L.); and having G. IX.-1* 66 66 66 66 66 66 given several specific legacies to William Manning the younger, second son of the defendant William Manning; and, in particular, a pecuniary legacy of £8000 [19] sterling, and to five several persons therein named (i.e.) to each of said persons £500 of his 4 per cent. consol. Bank annuities he gave as follows: I give and bequeath to my esteemed friend John Danvers's family, of New-court, Broad-street, in the city of London, as follows : to John Danvers, the eldest son, £500; Charles Danvers, the second son, £300; Eliza"beth, the eldest daughter, £300; Frances, the youngest daughter, £300; Mrs. Danvers, wife of Mr. John Danvers, £100; to Mrs. Lindagreen, wife of Mr. Charles Lindagreen, of Chelsea, £100: I give to my esteemed friend, Mrs. Elizabeth Bennett, £100, to be paid from [the] 4 per cent. Bank annuities." And having given several legacies to Mrs. Cobb, to his three executors, to his servants, and the parish boys, amounting, in the whole, to £600. He then " willed as follows: (i.e.) the above legacies to be paid "in six weeks after my decease, amounting to £600 of [the] 4 per cent. Bank annuities, for what said annuities will fetch, after the first dividend is due on them, after my decease, I mean the same to all the rest of the legacies of 4 per cent. I have bequeathed away, each £100, &c., is in stock." He gave several other legacies, and went on as follows ("all the rest and residue of my estate in England, or other places, landed or personal, I give to W. Manning, jun. and," &c. R. L.): "and after the decease of Mrs. Catharine "Foljambe, I give that annuity she holds in her life-time to the family of the Danvers; "I mean, to John, Charles, Elizabeth, and Fanny, or amongst as many as shall then be "alive." The testator afterwards made a codicil to his said will in his own hand-writing (without any date), in the words following: (i.e.) " I find I have willed away only £5600 ("in Bank 4 per cents. ; and I find I have there at present £6000." R. L.). I give and bequeath the interest of the remaining £400 to my esteemed friend Mrs. Catharine Foljambe for her life only; at her decease, it must go with the rest to the Danvers "family." The testator afterwards made another codicil to his said will in his own handwriting without any date, whereby he gave and bequeathed several specific and pecuniary legacies to several persons, but did not thereby revoke or alter any of the legacies by his will, and first codicil given to the plaintiffs. The testator died on 30th of September 1783, without having revoked or altered his will. The executors proved the will, and took possession of the personal estate of the testator, and paid his funeral expences, debts, and some of the legacies: but, doubts arising about others of the legacies, whether they were pecuniary legacies, or legacies of stock, the plaintiffs John Danvers the younger, Charles, Elizabeth, and [20] Frances Danvers, together with Bennet and his wife, filed the present bill, stating the will as above stated, against the defendants, the executors, residuary legatee, and legatee for life, praying payment of their legacies, and that the funds given to Mrs. Foljambe for life might be transferred into the name of the accountant general, in order that it might be secured for them after her decease, according to their several rights therein. The defendants, by their answers, admitted the will, but said they were advised, that the legacies given the plaintiffs the Danverses, were not legacies of so much money, but of so much stock only. To prove this, they stated the legacy to the defendant Manning, expressly given as Sterling, and two legacies of £500 each, in his last codicil, given to two young ladies out of his running cash. They also set forth a paper in the hand-writing of the testator, found in his pocket after his decease, and supposed to be intended as instructions for a new will, in which the legacies were set down, with the addition of 4 per cents. to each. Mr. Mansfield and Mr. Mitford (on behalf of the Danverses) contended, that their legacies were not stock but money legacies. The legacies given before are expressly stock legacies; then come the legacies to the Danvers family without any such conclusion. The first legacy which follows with any such reference, is that to Mrs. Bennet. The only way to construe them stock legacies, is by referring the codicil to them, which is very inaccurate for, calculating either way, he has not made the sums agree. By the last clause in his will, he has made the sums depend upon the sale of his stock; but this only refers to the legacies therein contained, not to those of the Danvers family. He has restrained it to stock, where he meant it to be so restrained. Mr. Ambler and Mr. Nedham (for the defendants). The only question is, whether these are legacies of stock, or money legacies. The will is very inaccurately drawn ; but enough appears upon it to shew the testator intended them to be legacies of stock. The codicil makes it clear that all were to be stock, except those directly given out of other funds. He looked throughout to the quantity he had of stock. The Court will rely upon the clear expressions of the will, where they are [21] connected with each |