1785. Lincoln's Inn [Where a defendant has obtained a ver dict at law, and an injunction bill is filed against him whilst out of the kingdom, the plaintiff in equity cannot ACTON against MARKET. (Reg. Lib. 1785. A. fol. 46.) 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 † [*] application; but Lord Chancellor thinking it reasonable, granted the motion. sustain an injunction against him unless he pay the money into Court.] (1) [ *15 ] † But see Sherwood v. White, 1 vol. 452. (1) S. P. Sherwood v. White, antea, 1 vol. 452. Culley v. Hickling, post. 182. and Potte v. Buller, 1 Cox, 330, &c. Interrogatories AN to falsify an examination. ROWLEY against RIDLEY. [Dec. 9.] (Reg. Lib. 1785. B. fol. 22. b.) N 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. IN Ex parte MARLIN. N 1771, Thomas Pettit had separate creditors. 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 [*] Thomas Pettit, John Runnington, and Richard Flight, and that (1) This is now done under the general order of the 8th of March, 1794. 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. 1786. Ex parte MARLIN. [*] HILARY TERM, 26 Geo. 3. 1786. [#17] HOLWORTHY against ALLEN. (1) 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 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. (1) 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 afterwards compromised. [S. C. 1 Cox, 202. Quod vide.] Court will not, upon motion, discharge a per son in execution for costs upon a demand arising to him upon the person to whom he is in execution. HENLEY against AxE. (No Entry.) [ *18 ] A BILL filed to set aside an agreement for an annuity, upon payment Bill to set aside 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 [*] of fiftytwo 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 2001. per annum, during the joint lives of himself and his uncle, in consideration of 6000l. to be paid by the plaintiff to the defendant, six months after the death of the uncle without issue; and an agreement able at his sue, dismissed. 1786. HENLEY against Axx. 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 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. [S. C. 1 Cox, 203.] Testator gave certain legacies in stock, he then gave others without that ad- sold, this made would be left of sum, and given posed] "re DANVERS against MANNING. [24 & 25 January.] (Reg. Lib. 1785. A. fol. 808. b.) 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 6000l. 3 per cent. consol. Bank annuities, with the interest of 1000l. in the Royal Exchange assurance, with 361. a year more, 3 per cent. Bank long annuities for life only (1); and having given several specific legacies to William Manning the younger, second son of the defendant William Manning; and, in particular, a pecuniary legacy of 80007. [*] sterling, and to five several persons therein named (i. e.) to each of said persons 500l. of his 4 per cent. consol. Bank annuities he gave as follows: "I give and bequeath to my esteemed friend John Danvers's it as such [sup- « family, of New-court, Broad-street, in the city of London, as follows: "to John Danvers, the eldest son, 500l.; Charles Danvers, the second son, 3007.; Elizabeth, the eldest daughter, 300l.; Frances, the youngest "daughter, 300l.; 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, 100l. 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 600l. He then "willed as "follows: (i. e.) the above legacies to be paid in six weeks after my "decease, amounting to 600l. 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 100l. &c. is in stock." He gave several other legacies, and went on as follows (3): " 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 maining sum" to A. for life; she was held entitled to the real sum which was actually left remaining. (2)]. [ *19] (1) "To commence as it came due after his decease." R. L. (3) "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. OW! ་་ own hand-writing, (without any date) in the words following: (i. e.) "I find I have willed away only 5600l. (4) I give and bequeath the "interest of the remaining 400l. 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 hand-writing 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 [*] 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 500l. 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 [*] connected with each other in point of sense, not upon omissions, occasioned by negligence. He has done enough to shew that the legacies are to be paid out of the funds. He gives his 3 per cents. to Mrs. Foljambe for life, then the legacies to the three ladies to be paid out of the 4 per cents. Then he gives the legacies to the Danvers family, then the 100%. legacy, and, after that, the legacy to Mrs. Bennet to be paid out of the 4 per cents. Nothing is more usual than, in making wills, when the (4) In Bank 4 per cents.; and I find I have there at present 6000/." R. L. party 1786. DANVERS against MANNING. [ *20 ] [ 21 ] 1786. DANVERS against MANNING. [*22] party has named the fund, not to repeat it to the next legacy. Then the legacies, amounting to 600l., are expressly to be paid out of what the stock would sell for, after payment of the first dividends; and he says he means the same as to all the legacies he has bequeathed away. Then, by his codicil, he says, I find I have willed away 5600/. 4 per cents. This must apply to all the legacies; without those to the Danvers, the legacies would not near amount to that sum. The having mistaken the whole amount will not vitiate the clear intent. Mr. King (for Mrs. Foljambe.)-With respect to the 4007., it must be taken, not as a legacy, but as a residue; and, although the residue turns out to be larger, she must take that; as, if it had been less, she could have taken no more than the residue. Lord Chancellor (5). — Upon the whole, the best construction that can be put upon this will, is that insisted upon by the defendants. He professes an intention of disposing of his whole property. With respect to the legacies to the five ladies, if the case went no further, it would be impossible to construe them otherwise than stock legacies. Then there are several other legacies to be paid from the 4 per cents. There is no doubt as to the common rule, that the last antecedent shall govern what passes before. I think it at least as probable, that the words govern all the class of legacies as the contrary. He then gives the legacy to Mrs. Cobb and the other persons, including the servants and parish boys, amounting to 600l. Here he adds out of the stock, to be sold after the first dividend. The intention is, that, as they were small legacies, he did not intend the executors to transfer the stock, but to raise them by sale. Then he goes on, I mean the same to the rest of the legacies I have bequeathed, referring back to the former legacies this must include all the classes. To say, in such a will, it is manifest what the [*] intention was, is too much; the expressions render it open to much argument, as to the application to the second class; but it is probable he meant it so to apply. But it does not rest here; for, by the codicil, he recites his disposition of a fund. He thought he had disposed of it to a farthing. A man who gives a fund in proportions, must mean proportions of that fund. It therefore amounts to a supposition, on the part of the testator, that they were parts of the fund. But he has mistaken the fund, and computed it wrong, so as to make a different residue. But although that be the case, it will be nearer the general intention to give the residue, as it really is, to Mrs. Foljambe for life, than the contrary construction. : (5) See also the judgment of Lord Thurlow, reported by Mr. Cox, 1 Cox, Ch. Ca. 203, &c. [Vide S. C. post. 344.] A power being given to appoint an estate among children: Quære, ROBINSON against HARDCASTLE. [26 & 27 January.] BY indentures of lease and release 13. and 14. July, 1713, the release Whether it is well executed by giving to a son for life, with remainder to his sons in tail? (1) (1) It was afterwards held a bad appointment; and that such a power to appoint amongst children did not extend to grand-children. See postea, 344. For some observations of Lord Eldon C. in approbation of what Lord Thurlow says in this case, postea, p.30. See in Thelluson v. Woodford, 11 Ves. 145, of |