more material, never was adopted by our law. As to legacies of debts, according to the civil law where the testator had sued for, but had not recovered, or had got judgment, but not execution, or had actually [111] recovered the debt, but had set the money apart for the legatee, or, by words, declared he did not intend to revoke the legacy; in none of these cases was the legacy adeemed. But there is no authority in the civil law, for the distinction between a debt being paid without demand, and in consequence of a demand; besides, although it can be ascertained where a suit was commenced for a debt, it may be extremely difficult to ascertain whether any demand has been made; if the testator receive payment of the debt, the legacy is gone, unless it appear, from the manner of his disposing of the money afterwards, that he means to preserve it for the legatee. (Vide 1 Roper on Legacies, 30, 31, 35, 36. Coleman v. Coleman, 2 Ves. jun. 639; Stanley v. Potter, 2 Cox, 180.) Lord Camden, in the Attorney General v. Parkyn [Ambler, 566], held there was no distinction between voluntary payment, and payment on a demand, and that, in both cases, the legacy was extinguished; he added that where the sum is specified in the bequest, it is a general legacy, as I shall mention on the other point. But the distinction between, I bequeath the £500 due on a bond from A. B., and I bequeath the bond from A. B., is very slender; and so admitted to be by his Lordship. In the civil law, there is a distinction taken between a demonstrative legacy, where the testator gives a general legacy, but points out the fund to satisfy it, and a taxative legacy, where he bequeaths a particular thing.

On the first point, I am clear this is a specific legacy. If the fortune of the testator had failed, so as not to satisfy all the pecuniary legacies, and the question had been whether this legacy should have been contributive to the pecuniary legacies, I believe no man in the profession would have doubted. (See Gittins v. Steele, 1 Swanston's Rep. 24.)

When the testator made his will, £3500 was due to him from William Ashburner, by bond; he meant to relinquish that bond for the benefit of the family; not by way of release to the husband, but by way of settlement: and that this debt, whether it turned out well or ill, should go to the family; the interest to his sister for her life, the principal among her daughters. In this case, the bequest must be considered as specific, although the sum be mentioned (see Heath v. Perry, 3 Atk. 103): for I cannot agree to Lord Camden's distinction. (Note: Lord Thurlow explains his dissent from the report of Lord Camden's considering the legacies in the Attorney General v. Parkyn, specific to one purpose, and general as to another, very fully in Stanley v. Potter, 2 Cox, 182. See, however, per M. R., 4 Ves. 566, and per Lord C., 2 Ves. jun. 640.)

As to the legacy of East-India stock to the plaintiff Beawes, there is no case to countenance his claim. The testator says, [112] I give my capital stock to, &c., the pronoun my has been relied on, in many cases, in deciding the legacy to be specific.

The testator, after making this will, sold his stock, which made it as if it had never existed; the legacy is adeemed, according to all the cases.

In questions upon legacies of debts, the cases have crept beyond the original principle, which was the distinction between demonstrative and taxative legacies, and recourse had been had to the animus adimendi which has nothing in common with the other principle.

In Pettiward v. Pettiward, Finch, 152, the court was of opinion, from all the circumstances, that the testator intended to give a legacy of £2000, although the debts, pointed out for the payment of it, amounted only to £1700, and therefore decreed the deficiency to be made good out of the general assets. In Pawlet's case, Raym. 335, the legacy was held to be a pure legacy, or a legacy in numeratis and not legatum nominis; and although the debt was paid to the testator, the legacy was decreed. In Lord Castleton v. Lord Fanshaw, 1 Eq. Abr. 298, a legacy of a debt was held to be specific, although the sum was named.

In Orme v. Smith, 1 Eq. Abr. 302; Gilb. 82; and Vern. 681, the payment was voluntary, and, from thence, was inferred an argument, that there was no animus adimendi. (See 1 Roper on Legacies, 30, 31, 35, 36, &c. Coleman v. Coleman, 2 Ves. jun. 639. Stanley v. Potter, 2 Cox, 180.)

In Lord Thomond v. Earl of Suffolk, 1 Wms. 461, Lord Macclesfield disapproved of the distinction between a debt recovered by suit, or paid in voluntarily. A definition of a specific legacy is given by Lord Macclesfield in Hinton v. Pinke/1 P. Wms. 539, and the advantages and disadvantages as between a specific and pecuniary legacy,

are mentioned; and, among other instances, that the legatee of a debt, which is lost by the insolvency of the debtor, shall have no contribution from the other legatees.

In Crockat v. Crockat, 2 P. Wms. 164, the testator bequeathed the sum of £550 which was then in Mr. Ellis's hands; the testator, before making his will had placed that sum in the hands [113] of Mr. Ellis, and had got his note for it. He had also, before making his will, drawn several bills on Ellis, which had reduced the sum to £430. It was held, by the Master of the Rolls, that, as the drafts were all made before the will, and as the note for the full sum was still standing out, the testator should be considered as renouncing the payments, and that he meant to give the whole £550 as a legacy. I take it to be clear, if a testator gives a cup which is in pawn, it is a full gift, and the executor must redeem. In Ford v. Fleming, 2 P. Wms. 469, and 1 Eq. Abr. 302. Lord King held, that calling in the debt was no ademption, supposing himself bound by the passage in Swinburne and Pawlet's case. How he could be bound by those cases I cannot conceive. This case determines nothing. Lawson v. Stitch, 1 Atk. 507, was also cited the question arose on a deficiency. The case at the Rolls, cited 1 Atk. 508, is nonsense, and has often been denied. The question upon the legacy of the stock has been determined uniformly. Ashton v. Ashton, C. T. Talbot, 152, and 3 P. Wms. 384. Partridge v. Partridge, C. T. T. 226. Purse v. Snapling, 1 Atk. 414, does not tell at all to the purpose. Avelyn v. Ward, 1 Ves. 420, is contrary to many cases determined before, and to one by Lord Hardwicke himself, viz. Purse v. Snapling.

Lord Camden, in the Attorney General v. Parkyn [Ambler, 566], decided one point, and left the other open. Parkyn, in his will, recites that he had certain mortgages, to the amount of £ and bonds to the amount of £ He gives all these, by such enumeration, to Pembroke College, Cambridge. To his sisters, who were next of kin, he gave annuities, and declared they should have nothing more under his will. Several sums were afterwards called in, or paid before testator's death.

Lord Camden determined, that the sisters were not disappointed by the declaration that they should have nothing but the annuities: he held the legacy to the college was not adeemed as to the sums paid in; upon the ground that the sum was named, which he at the same time admitted to be slight. (Sed vide especially 2 Ves. jun. 640, 4 Ves. 566, and 2 Cox, 182.)

[114] The testator certainly meant to give every thing to the college except the annuities but the bequest is in the strictest form of a specific legacy.-In Cartwright v. Cartwright, 18th July 1775, before Lord Bathurst. The bequest was, "I give £1400 for which I have sold my estate this day, &c." The testator afterwards received the whole money, paid it to his banker, and drew out of his hands £1100 of that money. Lord Bathurst held this to be a legacy of quantity, and that the receiving was no ademption, on the authority of the Attorney General v. Parkyn: but it is questionable whether that case supports that determination.

In the case before me, the testator plainly intended that his sister, Sarah Ashburner, and her children, should have the debt, owing to him by her husband, secured as a provision for them.

My decree will be, that the bond be delivered up to the wife and children, that they may receive the dividend not received by the testator, and whatsoever may hereafter be payable out of the bankrupt's estate in respect of that debt.

The legacy to Beawes is gone, and the bill must be wholly dismissed as to that claim. (No Entry.) (The M. R. says (in Chaworth v. Beech, 4 Ves. 566), that Lord Thurlow "determined this case on full consideration, and took two years before he gave judgment.")

(1) See 1 Roper on Legacies, 30, 31, where it is stated on reference to the later authorities, that such distinction per se, is exploded, and that although the fact of a compulsory payment amounts to strong prima facie evidence of an intention to adeem, yet where any reason can be given for the receipt of the money, no ademption will be presumed.

C. IX.-3

SADLER against HOBBS. Lincoln's Inn Hall, 18 July [1786].

Executors drawing a joint draught for property of their testator, and suffering it to remain in the hands of a tradesman, both held liable, although one of them had done no other act in execution of the will. (1)

On the 13th September 1765, William Sadler made his will, and thereby, after directing that all his debts should be paid, he gave the sum of £4000 to his sister Mrs. Harris, payable at such periods as therein mentioned; and the residue of his personal estate he gave to William Reeve and Samuel Davies, his executors after named, in trust for the plaintiff, in such manner as he thereby directed, with the common clause, that his executors should not be liable for the acts of each other. The testator died in the course of the same month, and, at the time of his death, the house of Trueman, Reeve, and Company, were indebted to him in a sum of about £7000. William Reeve was then in partnership with Devonshire at Bristol, and in a very considerable [115] business as merchants. On the 5th of April 1766, Reeve and Davies, as executors of Sadler, drew two bills of exchange for £5000 and £2000 on the house of Trueman, Reeve, and Company, payable to the house of Devonshire and Reeve, in the following form:

"Ten days after date, pay to Messrs. Devonshire and Reeve five thousand pounds, "value on account with the estate of William Sadler, Esq. deceased, per advice. Wm. Reeve. S. Davies."

It appeared that the testator was, at his death, indebted to the house of Devonshire and Reeve in about £3000, and that the house of Devonshire and Reeve were indebted to Davies on a running account; and, particularly, that they paid him a sum of £1000 on the 11th of April 1766, on account. This being the situation of the several parties, Trueman, Reeve and Company paid the £7000 to Devonshire and Reeve, who gave credit for it in their books to the estate of William Sadler. On 14th July 1766, Devonshire died, and on 28th August 1769, Davies died; and it appeared that Davies had never acted in the execution of Sadler's will (although he had proved it), except by drawing the two aforesaid bills of exchange upon Trueman Reeve and Company, Reeve being the sole acting executor. In November 1773, Reeve became a bankrupt, the said sum of £7000 having remained in his hands from 1766 to the time of the bankruptcy. In 1774, the plaintiff attained his age of twenty-one years, and soon afterwards Mr. and Mrs. Harris joined in an assignment of the legacy of £4000 to the plaintiff (no demand of it having ever been made, from the death of the testator); but Harris and his wife had, at five different times, received generally on account eight guineas from Devonshire and Reeve; and, there being no personal estate of the testator to answer the said legacy, except the residue of the said sum of £7000, after deducting the demand which Devonshire and Reeve had on the testator's estate, the question was, whether Davies, having joined in drawing the two bills of exchange, became thereby answerable to a legatee in respect of that money, although he had never received any part thereof. On a bill being filed, by the plaintiff, for his legacy, it had been referred to the Master to take an account of the testator's personal estate and that whatever appeared to have come to the hands of Davies, should be answered by his executors, [116] they admitting assets of Davies; when the Master charged the estate of Davies with one moiety of this £7000, to which report the defendants excepted.

The exceptions were argued on the 14th May 1784, and this day Lord Chancellor gave judgment.

Lord Chancellor (after stating the case). The question is, whether Reeve and Davies (or his representatives) shall be answerable for any part of the £7000, which was, by virtue of the drafts, paid into the house of Devonshire and Reeve, and so paid in as a debt due from the estate of the testator Sadler. The Master has discovered that this debt amounted to no more than £3000, and consequently has, by his report, charged the parties the sum of £4000 beyond that sum. Exceptions have been taken to that report in respect of this charge, and upon those exceptions the present question arises.

I take it to be clear, that where, by any act, or any agreement of the one party, money gets into the hands of his companion, whether a co-trustee or co-executor, they shall both be answerable.

So, in the case of a perfect stranger, if the trustee clothes that stranger with the

power of receiving the money, they shall both be answerable. The mind of the Court hath changed, in various instances, in cases of trustees; but, in cases merely in regard to executors, it has continued invariable. There is a case on the other side, but that I will mention presently. The first case which I recollect to have been cited, was that reported in Hardress, 314, Gill v. the Attorney General. The rule, as laid down in that case, and adhered to in subsequent ones, remains the same as at law; and there is no authority in this Court to contradict it for where one executor takes the money but of his own authority, his companion shall not be charged; but if he puts the money into the hands of his companion, he shews he had it in his power to secure it; and that his companion, for some reason, was permitted to obtain the possession of the money.

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[117] There is a very material case in Croke Car. 312 (Foster v. Townley), but better reported in Bridgeman, 35. It was determined upon the utmost deliberation by the Lord Keeper Coventry, assisted by three judges. There were several points besides in the case. It was decided, by as able judges as ever presided, upon principles of law, as well as upon principles of discretion, that a trustee, joining in the receipt, should be charged with the fund; because he appeared to have a power over the fund.

If the rule of law had remained so to this day, the wisdom of it might have been discussed in subsequent cases, as Heaton v. Marriot, Fellowes v. Mitchell (1 Wms. 81). It has been determined, that where two trustees join in receipts or conveyances, and the one, only, receives the money, that party shall be solely liable, as the other joined purely for the sake of conformity. But, in the case of executors, the rule of law prevailed, and both have been deemed liable. (See Leigh v. Barry, 3 Atk. 583, 584.) As to the authority in Prec. Chan. 49, the executor was well warranted for the act, as he placed the money in the hands of the banker, pursuant to the directions of the testator. In Pre. Chan. 173, the executors were held to be answerable. As to Churchill v. Hobson, 1 Wms. 241, Lord Harcourt founds his opinion upon a distinction between creditors and legatees. That a creditor shall have a right to charge an executor, and a legatee not, seems to me an odd distinction. [But it is a distinction founded on this, that the executors would be chargeable at law, and would not be relieved in equity; and in Leigh v. Barry, 3 Atk. 583, 584, the trustees having made themselves chargeable at law were not relieved in equity. (From Lord Redesdale's Notes.)] In a later case, in 3 Atk. 584, Leigh and Barry, the rule is confirmed, that trustees shall not be chargeable, but that executors shall, under such circumstances as the present.

The only case to the contrary is that of Westley v. Betts (Westley v. Clarke, 1 Cox, P. W. 83, and lately reported from Lord Northington's MSS. by Mr. Eden, 1 vol. 357), in the time of Lord Northington. There were particular circumstances in that case; but I must question that determination. (Note: The late Lord Alvanley, when M. R. adverting to what Lord Thurlow here says, nevertheless approved of Westley v. Clarke, with reference as it seems to the particular circumstances of it. See, however, note (1) to this case.)

In the present case, the circumstances are very strong to induce me to adhere to the old rule. The party suffered the money to be out for a very long time in the hands of a tradesman (Note: A power to lend trust-money on real or personal security held not to extend to a loan of it to a tradesman by way of accommodation, Langston v. Ollivant, Cooper, Ca. Ch. 33. See also Wilkes v. Steward, ibid. 6), [118] and neglected to call it in, notwithstanding the party interested in the fund was an infant in such a case as this he is clearly chargeable; and therefore the exceptions must be over-ruled. (Reg. Lib. 1785, A. fol. 536.)

(1) Westley v. Clarke (before Lord Northington, and lately reported 1 Eden, 357), within mentioned with some disapprobation (whether rightly determined as to its particular circumstances, 4 Ves. 609), seems to have given occasion to relax the sound intelligible rule, which previously prevailed, viz. that where either executors or trustees (and executors more especially) joined in any act, which as to them was unnecessary, and a loss happened, the parties thus unnecessarily concurring, should be held responsible, although none of the funds came into their hands. That rule seems now restored. See Hovey v. Blackman, 4 Ves. 596. Chambers v. Minchin, 7 Ves. 186, &c. Brice v. Stokes, 11 Ves. 319. Lord Shipbrook v. Hinchinbrook, 11 Ves. 252, and 16 Ves. 477, &c. Vide ibid. 479. Langford v. Gascoyne, 11 Ves. 333. Joy v. Campbell, 1 Scho. and Lefroy, 328, 341. Underwood v. Stevens, 1 Merivale, 712.

POOLE against SHERGOLD. Lincoln's Inn Hall, 24 July [1786].

[See Casamajor v. Strode, 1834, 2 My. & K. 727.]

[Vide S. C. 1 Cox, 273.-Master of the Rolls for Lord Chancellor.-A contract to purchase lots; to two of the lots a title could not be made, and in others there had been a deterioration in point of value; if the value of the remaining lots is not affected by that deterioration a specific performance shall be decreed as to all but the two. (1)

Bill for a specific performance of a purchase in lots. A good title could not be made to two of the lots, 9 and 11, without procuring a recovery to be suffered; and in others of the lots, there had been a deterioration. Shergold refusing to take the purchase; the bill was filed, and, upon the hearing, it was referred to the Master, to enquire whether a good title could be made, &c. The Master reported that a title could not be made to the two lots, and, as to the others, he reported a deterioration of £21, 10s. for timber blown down, and the rest for coppice wood cut after the purchase.

Upon exceptions to the Master's report, the question was, whether under these circumstances, the defendant should be compelled to complete his purchase.

Mr. Scott and Mr. Stanley (for the defendant) contended, that, as acts remained to be done to perfect the title to the two lots, till those acts were performed, the defendant should not be compelled to perform his contract: or, at most, he shall not be decreed to pay costs.

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Mr. Madocks (for the plaintiff). With respect to the two lots; to be sure we must procure the trustees, and other necessary parties, to join but, as to the other lots, no objection remains against the defendant's being compelled to complete his purchase; a deduction equal to the deterioration being made, which has arisen partly by accident, and partly by the default of the defendant, in not before completing the purchase, on account of which, it became necessary to cut the copse. If the want of title to the two lots was a deterioration to the others, it would have been taken notice of in the [119] Master's report; but he has not mentioned any such thing. The contract ought, therefore, to be carried into execution, except as to the two lots.

Master of the Rolls [Kenyon]. Both parties seem to have been to blame: Shergold in resisting the contract in toto; the plaintiff in insisting upon it in toto. I must take it for granted, No. 9 and 11, are not so complicated with the other lots, as to entitle Shergold to resist the whole. If a purchase was made of a mansion-house, in one lot, and farms, &c., in others, and no title could be made to the lot containing the mansionhouse, it would be a ground to rescind the whole contract. There must be no costs down to the reference; from that time, Shergold must pay costs. (Note: So much of the bill as related to lots 9 & 11, was dismissed with costs. No costs were given on either side down to the date of the Master's report, including that report; and the defendant was to pay the costs of the suit from that time. Reg. Lib.) It must be referred to the Master to settle conveyances of all the lots, except the two to which there is no title the difference arising from the calamities of the times, ought not to rescind the contract. (Reg. Lib. 1785, B. fol. 749 b.) (Mr. Cox reports the judgment much more fully. 1 Cox, 274.)

In the prin

(1) See the notes to the case of Shirley v. Stratton, antea, 1 vol. 440. cipal case, was cited the case of the wharfinger, who, desirous to purchase a wharf for the purpose of his business, and contracting to take a house with the wharf, was ultimately compelled to take the house without the wharf. From the late Sir S. Romilly's notes, MSS. and 6 Ves. 676, where the report is mistaken in attributing the ultimate decision of the principal case to Lord Thurlow, although certainly His Lordship laid the foundation of the decision. See the judgment of the M. R. as extracted from Mr. Cox's Report in the last note to this case. A contract being to sell two undivided seventh shares of land, which were in one lot, and the vendor being unable to make a title as to one of the shares, the Vice-Chancellor refused to execute it; saying, the Lord Chancellor had held the like: and specially declaring, that "the two shares being contracted to be sold in one lot, and no good title made to one of them, the other party ought "not to be held thereto." Roffey v. Shatcross, 19 July 1819.

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