1803. DEANE versus TEST. contrasts them with those of stock. This legacy is to be paid out of 40001. four per cent, annuities; and the circumstance of the manner in which it is to be paid, proves that he meant stock; for every child is to have his portion on attaining twenty-one, and not till then. The words an additional sum of 20001. more,' are extremely material to prove that the testator spoke with reference to his former bequest of stock. Kirby and Potter has no application to this case; for the words there were different, and taken upon their own individual meaning. The master of the rolls there thought that the word some converted the legacy into a pecuniary one. Upon the whole, the testator here must clearly mean, that he gave these parties two additional thousands out of his four per cents." Mr. ALEXANDER, in reply. "All the presumptions. in this case are with the plaintiffs; for the court always leans against specific legacies. If the words additional and more are taken away, then this is exactly the case of Kirby and Potter, which was held to be a pecuniary legacy. In this will, where the testator intends stock, he always says so, and wherever he speaks of stock he always adds those words to his description." Lord CHANCELLOR. "The question upon the words of this will, is upon the bequest of an additional sum of 20001. more' to the children of his sister Lucy Deane, to be paid out of his four per cent. consolidated Bank annuities: and in deciding this case, I must admit, that my opinion goes upon nothing more than conjecture upon the whole of this will taken together. The gift of a legacy, such as this, ought, beyond doubt, prima facie, to be taken as pecuniary; and there is no occasion here to discuss many questions which have been stated, as particular directions in a will frequently arise from the wish of a testator to determine the priority. Saying that this legacy is, primâ facic, pecuniary, is certainly carrying it as far as it can go; but then is this primâ facie evidence of intention sufficient? I think you must certainly abide by it, until you are driven from it by strong rational inference arising from other parts of the will. It is true, that the testator in this will, speaking of the 40001. stock to his sister, uses the words to be paid, when he ought to have said iransferred; but I yet think that, upon the whole, he intended in this case an immediate legacy of some species or other. It is contended, that when the testator says, 'I likewise give to my sister Deane's children an additional sum of 20001. more, and to be paid out of my 4000l. stock,' the word more must mean ejlem generis with the former legacy; but critical observations upon the words of a will form no certain clue to guide the judgment: yet as he directs this additional sum to be divided amongst his children, as in the former bequest, the circumstances of his giving it in addition, and upon the same limitations, are certainly ma terial to be considered, in endeavouring to find out the intention. But do they afford inference enough to take it out of the prima facie meaning? In this will, wherever a gross sum of money is given, it is always described, with much particularity, as lawful money of Great Britain; and it is the same in the codicil. Where he describes stock, he is equally accurate; for, he says, 1001. stock, and when he gives the first 4000l., to which this legacy is an addition, he clearly gives it as stock. There is no legacy in the whole of this will which the testator meant to be in stock, but he so describes it as to end all doubt. It is certainly difficult to bring together, in any part of it, a legacy of stock and money to the same person in this will; for the only exception I find is in the bequest to his housekeeper, to whom he gives, first, 1001. sterling, and 501. per annum, to be paid out of stock, and then 1000). three per cent. stock; but each of these he accurately describes. In the construction of a will, where the phraseology affords different inferences, the doubt is, Whether you have fairly developed the whole? But the best rule to abide by is, the primû facie inference, unless you are clearly driven from that by something more than plausible arguments. Upon the whole of this case, I cannot say that the prima facie inference is not the real meaning; and I therefore think that this is a legacy of money, and that the children of Mrs. Deane are intitled 1803. DEANE versus TEST. 1803. DEANE versus TEST. to it immediately; for his mention of stock in this bequest must be considered merely as pointing out from what fund the legacy was to be paid." DRAKE versus WOODFORD. DRAKE versus WOODFORD and Another. THE custody of an examination, tuken under a dedimus in the country, belongs to the clerk in court, who is intitled to make the copies of it. If sworn in town, it belongs to the master. MR. R. LLOYD moved, that Master Holford might be ordered to deliver up to Mr. Barker, clerk in court for the defendants, the writ of dedimus, and the examination of the defendants taken thereupon, to be preserved as part of the records of the court. One of the defendants lived at Vauxhall, and the other at Winchester. The writ of dedimus, therefore, authorised the commissioners to take the examination of each separately. A joint examination was, however, prepared; and the commissioners swore the defendant residing in the country, buț the defendant living in town was sworn before the master. A Mr. LLOYD contended, "that although the regular course would have been to have made a separate examination, yet as the examination was actually sworn by one of the defendants in the country, the practice was, that the clerk in court should have the custody, and make the copies." Lord CHANCELLOR. "This proceeding is founded in mistake altogether; for there is no authority given by this dedimus to take a joint examination. There must be a separate one for the defendant residing in town; and the dedimus must be returned to the regular custody. I shall make no order in the case; but the examination in the country must be given up to the clerk in court, and the remainder of it is worth nothing." GUY versus BURGESS. ON a motion to review the taxation of a bill of costs commenced during a client's minority, it was granted accordingly, on the ground, that a continued employment when of age, might, under circumstances, amount to an undertaking to pay the prior bill, 1805. Gur versus THE plaintiff was employed in his business, as an attorney, by the defendant, during his minority; in BURGESS. which time a considerable debt was incurred to the plaintiff. The defendant also continued to employ the plaintiff, after he came of age, in the completion of the business commenced during his minority. Upon a reference to the master to tax the plaintiff's bill, the master disallowed all the charges incurred during the minority of the defendant. A motion was now made, that the master should be ordered to review his taxation. The CHANCELLOR made an order to refer the matter back to the master, upon the ground, that the continued employment, after the defendant's coming of age, might amount to an implied undertaking to pay the prior part of the demand incurred during minority, and directed the master to inquire and state the circumstances. The plaintiff to pay the costs of the motion. ANONYMOUS. A DEFENDANT cannot be ordered to produce deeds, &c. unless stated in a schedule to his answer, or at least described with certainty. The practice formerly was to pray a schedule in the bill; and it is so still in Ireland. MR. WETHERELL moved, that the defendant might ANONYMOUS be ordered to produce, in the usual manner, all deeds, papers, and writings in his custody, relating to 1803. the matters charged in the bill. The defendant, in his ANONYMOUS, answer, admitted that he had some deeds in his possession, but had not annexed any schedule of them. Mr. WETHERELL therefore suggested, that the best manner of framing the order would be, that he should be directed to produce all deeds in his custody relating to the matters in question, with liberty for the plaintiff to take exceptions to the production, if it should be insufficient, which he thought agreed with the spirit of Lord ROSSLYN's general order. Lord CHANCELLOR. "This motion is grounded upon the insufficiency of the answer, instead of the regular mode being adopted, which would be to file exceptions. It is true, that my Lord RosSLYN, in a case of Mason and Gardner, made an order for production where there was no schedule; but that was the case of a single deed, which he thought was described with sufficient certainty in the answer to authorise him to do so. It used to be the practice formerly in this court for the bill to pray, in the first instance, that the defendant should set out a schedule of all deeds, &c. before he answered; and it is still the practice in Ireland. I do not know where this is to stop. It is clearly impossible for me to make any order for production without a distinct admission upon record of the defendant's having the particular deeds in his possession." MOTION REFUSED. Ex-parte WHALLEY in re WHALLEY. A COMMISSION of bankruptcy cannot be taken out by a person who is appointed, and acts as a trustee under a deed of assignment for the benefit of creditors, although he does not actually execute the deed. Ex-parte THIS WHALLEY THIS was a petition to supersede a commission of bankruptcy issued against the petitioner, on the ground WHALLEY. that there was no act of bankruptcy. The bankrupt in re |