being at peace with this country, the Courts of Justice *here will assist them to recover their money, and will not leave them to get it as they can? Practically speaking, great inconvenience may result from these transactions, for if at any future time the Government of this country shall be disposed to say, Peru shall still continue annexed to Spain, these creditors will immediately come to the Government and say, Do not accede to the arrangement unless Spain will pay us what we have advanced to the colony. The cases where one party files a bill on behalf of himself and others are cases where the others have a choice between that and nothing, but how can it be managed where some parties are not dissatisfied, and are disposed to abide by the contract? The Attorney-General, Mr. Shadwell, and Mr. Pemberton, against the motion. Mr. Wigram for the defendants the bankers. JONES บ. GARCIA DEL RIO. [ *300 ] Mr. Wetherell in reply was stopped by The LORD CHANCELLOR, who said that the plaintiffs, if they had any demand at all, had each a demand at law, and each a several demand in equity; that they could not file a bill on behalf of themselves and the other holders of scrip, and as they were unable to do that, they could not, having three distinct demands, file one bill; and upon that ground alone, his Lordship, without again adverting to the question of public policy, Dissolved the injunction. [301] 1823. July 24. Lord ELDON, L.C. [301] [303] [ *304 ] CLUTTON v. PARDON.† (Turn. & Russ. 301-304.) Where a party has a pressing necessity for papers in the hands of his solicitor, the Court will order them to be delivered up upon a deposit being made sufficient to cover the amount of the solicitor's bill and the costs of the taxation. [IN this case, upon an application to discharge a common order for taxation, irregularly obtained after payment, the LORD CHANCELLOR said:] Where a person means to have a bill taxed, if he thinks proper to pay that bill he does not thereby necessarily waive the right to taxation; he may intimate that he pays it without prejudice to taxation, and there may be cases where without one word being said he would have a right to have the bill taxed. Every attorney has a right to hold papers till his bill is paid; the language of every order which is made upon the subject is, that upon payment of what is due the papers shall be delivered over; but where a party has a pressing necessity for papers, the Court will order them to be delivered over upon a deposit being made, which will cover not only what is due upon the bill but what may be due for the costs of the taxation. 1823. July 8. Aug. 1. Lord ELDON, L.C. [310] HARRIS v. LLOYD.‡ Illegitimate children not entitled under the description of children in a will, the intention not being sufficiently apparent upon the face of the will. Legacy in trust for the children of A. to be equally divided between them with benefit of survivorship and a provision for maintenance out of the interest, A. having no children at the death of the testator: Held, that after-born children would take, and that the interest till the birth of a child fell into the residue. EDWARD HARRIS, by his will dated the 10th of October, 1809, devised to his executors all the estates of which he was seised in + Re Galland (1885) 31 Ch. Div. 296, 55 L. J. Ch. 478. ‡ In re Haseldine (1886) 31 Ch. Div. 511. mortgage, upon trust, on payment of the mortgage monies, to convey the same to the persons entitled to the equity of redemption thereof; and after bequeathing the sum of 5,000l., part of the monies to be received in respect of the mortgages, upon certain trusts, for the benefit of Edward Goring and James Goring, he directed his executors to invest the residue of such monies upon mortgage or in the funds, and to stand possessed of the same, in trust for all and every *the child and children of his son Edward Harris, if more than one to be equally divided between them share and share alike, the shares of sons to be vested at twenty-one, and to be paid or transferred at twentyfive, and the shares of daughters to be paid or transferred at twenty-one or marriage, with benefit of survivorship as to the shares of children dying under twenty-one, and a direction that until the shares of the children should become payable, the dividends and interest of the trust funds or securities should be applied in their maintenance and education; the testator gave to Sarah Byrne all the rest and residue of his estate and effects. After the death of the testator a suit was instituted by Edward Goring and James Goring, and by three infants who were represented to be the children of Edward Harris the son, for an account of the monies due to the testator upon mortgage at the time of his decease, and the mortgage monies, amounting to the sum of 8,400l., having been received by the executors, were paid into Court and invested. By the decree part of the fund in Court was appropriated to answer the legacy of 5,000l., and it being declared that the infant plaintiffs, if they were the only children of the said Edward Harris the son, were entitled to the remainder of the fund, it was referred to the Master to enquire what children the said Edward Harris the son had at the testator's death, and whether he had had any children born since that time. In the further progress of the suit, the Master having reported that Edward Harris the son had at the death of the testator three children only, the three infant plaintiffs, and that he had had no child born since the testator's decease, an order was made that the interest of the unappropriated part of the fund in Court should be applied in the maintenance of the infant plaintiffs, their father not being of ability to maintain HARRIS v. LLOYD. [ *312 ] [*313] them. The payment of maintenance was afterwards suspended by an order dated the 1st of February, *1821, made upon the petition of the defendants the executors, stating, that no proof had been adduced of Edward Harris the son having ever been married, and submitting, that the infant plaintiffs, if they were illegitimate, were not entitled to any benefit under the will of the testator. A supplemental bill was then filed by the infants, stating, that they were always treated by the testator as his grand-children, and boarded and maintained at his expense, and that Edward Harris their father had no other child, and setting forth a deed, dated subsequently to the filing of the original bill, by which Sarah Byrne assigned to trustees, in trust for them, all such interest in the funds in question as she was entitled to as residuary legatee of the testator, in case there were no children of the said Edward Harris the son to take by that description under the testator's will. A petition presented by the infants, insisting that they were entitled to the dividends of the unappropriated part of the fund in Court by virtue of the deed, independently of the question of legitimacy and the effect of the bequest contained in the testator's will, and therefore praying that the order of the 1st of February, 1821, might be rescinded, and that the dividends accrued and to accrue due upon the fund in question might be applied in their maintenance, now came on to be heard with the supplemental suit. Mr. Sugden and Mr. Willis in support of the petition : Without entering into the question whether the description in the will comprehends illegitimate children, the infants are entitled to the interest of the unappropriated fund in Court under the deed executed by Mrs. Byrne, upon the ground, either that the gift of the residue of the mortgage money is an immediate gift to a class of persons who must be living at the death of the testator, *and that there not having been then any legitimate children the gift altogether failed, and the particular residue fell into the general residue; or that the interest of the particular residue until the birth of a legitimate child is undisposed of, and forms part of the general residuary estate. Upon the first point they relied upon the provision for maintenance, as evidence of intention that the persons who were to take the fund were to be in existence at the death of the testator, and cited Godfrey v. Davis, and Davidson v. Dallas. Upon the second point they cited Wyndham v. Wyndham, § Shawe v. Cunliffe,|| and Leake v. Robinson.¶ Mr. Shadwell and Mr. Seymour for the executors. Mr. Spence for Edward Goring and James Goring. THE LORD CHANCELLOR: Three questions arise in this case; first, whether the persons who claim as children are children within the meaning of the testator and according to the legal construction of the word; secondly, whether the intention of the residuary legatee in favour of those persons can, as it respects the principal of the fund, be carried into execution, regard being had to the circumstance that the individual whose illegitimate children have been considered to be the persons intended by the testator may have legitimate children; and thirdly, whether, according to the cases of Wyndham v. Wyndham and Shawe v. Cunliffe, the interest of the residue of the mortgage money does not fall into the general residue until there is a legitimate child; I have not the least doubt that this testator meant illegitimate children, but I am clearly of opinion that there is not enough upon the face of this will to authorise me to carry that intention into effect.tt With respect to the bulk of the residue of the mortgage money, if there shall be legitimate children, it will become their property. With respect to the interest of that residue, upon the best consideration which I can give the subject, I think this case falls within the authority of the cases in which it has been held, that where there is an interval in which the interest is not disposed of expressly by the will before the persons come into existence who are to take the capital the interest falls into the residue. The order was accordingly made. † 5 R. R. 204 (6 Ves. 43). 4 Br. C. C. 144. ¶ 16 R. R. 168 (2 Meriv. 363). HARRIS บ. LLOYD. [ *314 ] |