and not having brought his cause to a hearing, it was insisted that the defendant had a right to have it set down for a dismiss. On the part of the plaintiff it was pressed to have such a decree as was prayed by the bill. Lord CHANCELLOR. I cannot establish the copy of a will as a copy; you have got all you can; your evidence will be preserved by the examination; but as you have prayed relief, to which you are not entitled, and so have given the other party a right to set down your cause for a dismiss, you must pay the costs as to that. But the heir having taken the benefit of your suit by examining witnesses as to the execution of the will, has used the bill as a bill to perpetuate testimony on his part, and is not entitled to his costs. (a) He had a right to cross-examine your witnesses, and if he had only done so, he would have been entitled to his costs. It appeared afterwards that counsel had been wrongly instructed in stating that the heir had examined witnesses. Reg. Lib. xlix. 399. "It appearing that the object of "plaintiff's bill was to perpetuate the testimony of wit66 nesses, and that the same ought not to have contained any prayer for relief, and ought not to have been set (4) Vid. qcc. Berney v. Eyre, 3 Atk. 387. 1804. VAUGHAN V. FITZGERALD "down for hearing, let the plaintiff amend his bill by "striking out so much thereof as prays relief. "much as the defendant, 66 And inas Fitzgerald, has not exa 66 mined any witnesses on his part, declare that, considering plaintiff's bill as a bill to perpetuate the testimony "of witnesses only, the said defendant is entitled, accord 66 ing to the course of the court, to be paid his costs, and "let plaintiff pay same accordingly. And let plaintiff be "at liberty to enrol said depositions to perpetuate so taken "in this cause." Feb. 29. Bequest of "erty in A. ex- 66 "cept" a particular chose in action descri FLEMING v. BROOK. A. MONTGOMERY by his will bequeathed thus: "all my prep. "I give to Mrs. E. Fleming” (the plaintiff)“ all my property of whatever nature or kind the same may be, that shall be found in her house in Duke-street, except a bond bed in the will: "of F. M. Esq. in my writing-box, in the said house conother choses intained." There were found in the plaintiff's house, a tor found in 4. deed of mortgage, from G. C. to testator, and a bond (a do not pass, notwithstandcollateral security thereto): and also several bankers' acing the excep- countable receipts for large sums of money.. action of testa tion. Mr. Fitzgerald and Mr. Radcliff for the plaintiff, insisted that these properties passed under the bequest: and that this case differed from those in which it had been held that choses in action would not pass under such a bequest (as in 1 Ves. 274; 1 Bro. C. C. 127) because testator had here expressly excepted one chose in action, which manifested his intention that the others should pass. It was proved on the part of the defendants (the executors of Montgomery) that the mortgage deed happened to be in the house by mere accident, the testator having brought it to Dublin, to be registered, and having intended to carry it back to his usual residence in the country. The Lord CHANCELLOR held, upon the authority of Moor v. Moor, 1 Bro. C. C. 127, (which was decided on a view of all the cases) that choses in action have no locality; and therefore that neither the mortgage, the bond nor the banker's receipts passed; though bank notes would have passed, they being quasi cash. His Lordship did not consider the exception in the will as evidence sufficiently strong of the testator's intention to pass these choses in action. .1804. FLEMING v. BROOK. The plaintiff undertaking forthwith to discontinue an action at law commenced by her against the executors of A. Montgomery, and to pay them their costs thereof, The bill was dismissed without costs. Reg. Lib. xlix. 415. END OF THE SITTINGS AFTER HILARY TERM, 1804. 1804. EASTER TERM, 1804. EX PARTE MATHIAS CHAMBERLAIN. April 24. MR. DWYER moved for liberty to issue a writ of re Writ of reple the goods out of the possess ion of the person who sues it forth. vin does not lie, plevin. The motion was founded on the affidavit of Chamunless there has berlain, which stated that Edward Murphy, being indebted to been a taking of deponent, had assigned to him the ship Friendship, in part payment of his debt: that on the ship's arrival at the port of Dublin, deponent had taken possession thereof by going on board; but that Barry, the master of the vessel, had refused to give her up to deponent, alleging that he had a lien on her for sundry charges: and that Barry was about to sail with the vessel from the port of Dublin, for the purpose of defeating the claim of deponent, who offered by his affidavit to pay any reasonable charges of the master. The Lord CHANCELLOR having in the Matter of Wilsons, bankrupts (a), animadverted upon the abuse of the writ of (a) Matter of Wilsons, bankrupts. Chan. Mar. 1, 1804. A person claiming property in some corn, which was in possession of the bankrupt, and which the assignees insisted on holding as part of the bankrupt's effects, brought a replevin, and under it took the corn from the assignees.-The replevin suit proceeded; the assignees pleaded property, and the cause was proceeding to trial, when a motion was made, in the matter of the bankrupt, by the person claiming the corn, founded upon affidavits as to the property, for an order on the assignees to deliver it up to him, and that the assignees might be restrained from compelling him to go to trial at law. Upon this motion the Lord CHANCELLOR expressed his astonishment at the use made of the writ of replevin in this coun replevin which prevailed in Ireland, the cursitor had refused to issue the writ in this case, which induced the necessity for the present application. Mr. Dwyer argued that Chamberlain had unquestionably the property in the ship, and that that property carried with it a constructive possession sufficient for him to maintain replevin. And he cited, Smith v. Milles, 1 T. Rep. 480; Co. Lit. 145. b.; Vin. Abr. titles, Replevin and Trespass, and 3 Bac. Abr. and Fitzh. N. B. tit. Replevin. The Lord CHANCELLOR. I wish much to settle to what cases the writ of replevin is properly applicable, for in the manner I have seen it used in this country, I see no reason why any thing which a man has in his possession may not be taken out of it, upon a mere claim of property of any kind, and then the person from whom the thing is so taken must get it back as he can. Some applications on this subject have come before me, which that this writ is used in this country for very prove try; and observed that this was not such a taking as was intended 1804. Ex parte CHAMBER LAIN. |