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1804.

Joy

V. CAMPBELL.

“the estate of the said W. Brown, as received by said T. in"

respect of said W.B.'s interest in the Sugar House Company and the Rope Walk Company, in the life-time of said “ IV. B.; And that the estates of said T. B. should be also “ charged with the sums of money received by said T. B. “after the death of said W. B. on account of such share. " And that the said 4. Foy should be admitted a co-ditor " on the separate estate of said T. B. under the commis“sion of bankruptcy issucd against him and the said y. * Oakman, for such balance as shall appear to be due front bt the estate of T. B, to the estate of W. B. at the time of “the bankruptcy of. T. B. after all just allowances. And

further, that the master should take an account of the “ real and personal estate of W. B. and of the rents and " profits charged by his will as aforesaid, which have coine

to the hands of the assignees of T. B. since his bankruptcy, and should charge the assignees with one half of “ the sums which had come to their hands in respect of the "share of the Rope Walk Company, which also stood in his

And further, that the estate of W. B.(not specifie' “cally devised) now remaining unsold, should be forthwith sold and his debts and legacies paid out of the dividends " which might be received out of the separate estate of T. * B. and what shall appear to have been received by J.

Campbell and . Foy and by the assignees of T. B. and also out of what should be-raised by the said sale, toge

ther with the costs of this, suit, if sufficient: but in case said fund should not be sufficient, then it was declared,

that defendant, F, Campbell ought to be charged with sa “much of said sum of 5,2851. 19. 5d, as was misapplied " by T. B. to answer the defeiency of the procedings aforesaid: And in that case the master was directed to inquire whether, any, and what part of said sum was applicd by said T. B. in payment of debts and legas hacies of W. Brexcept the debts of Brown and Qakman;

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" for which W. B. was surety. And it was declared that 1804. " the manner in which yohn Campbell acted in applying

JOY "the sum of 3,2321. part of said 5,285). 1s. 5d. in paying V.

CAMPBELL. the debts due to him from Brown and Oakman for " which W. B. was surety, without compelling said Brown " and Oakman to repay the same to the estate of W. B. " and on the contrary delivering up to the said T. B. the “notes of W. Brown, T. Brown, and y. Oukman and the " note of said J. B. who was co-surety with said W. B. for "1,500l. part of said debt, was a gross breach of the duty « of said Campbell as one of the executors of said W. B.

and a misapplication of the assets with his knowledge 6, and concurrence; and therefore that said Campbell ought

not to be allowed such sum of 3,232l. as paid in dis" charge of a debt of said W. B. : and accordingly it was 5 ordered that Campbell should be charged with said sum, " and also with as much of the residue of said 5,2851. 18. 5d. as was not applied in payment of debts and legacies; " and in such case, the consideration of costs was reserved still return of the report.

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« It was further declared that the rents of the lands of " Throne (until one of the sons of T. B. should attain the

age of twenty-one years, or all said sons should die under

twenty-one years) should be considered as applicable to "the payment of the debts and legacies of W. B. consi“dering them as passing under the residuary clause con“ tained in said will of W. B. And his lordship was * pleased to reserve the consideration of all questions as to " the disposition of the absolute property of said lands un* til it should appear whether the other funds for payment

of said debts and legacies, exclusive of said demand " against Campbell, would be sufficient for the payment of such debts and legacies and the costs, or not; and also until a son of said T. B. should attain the age of twenty

1804.

JOY

V. CAMPBELL.

one years, or all his sons should die under that age. His

Lordship also reserved the consideration of the question “ whether 7. Campbell ought to be charged with any interest “ for the said sum of 5,285l. 1s. 5d, until return of the

report. The master was further directed to inquire and " report whether it would be for the advantage of the per

sons interested to renew the lease of the lands of Throne, " and if so, on what terms, and out of what fund the “ renewal fine should be paid. All creditors of W. B. “ having charges or incumbrances on his said estates to "haye liberty to come in and prove,” &c.

EXECUTORS OF FERGUS v. GORE.(a)

court cannot

open the bid.

May 12.

AT a sale had on the 3d of March under the decree in After a sale regularly con- this cause, W. Redmond was declared the purchaser for the firmed, the

sum of 4,220). and he thereupon deposited a fourth part of ding merely on

the purchase money in the bank." On the 20th of April a suggestion of (before the sale was or could be confirmed) a notice was persons ready served on behalf of the defendant to set aside the sale to to bid in ad

Redmond, grounded on an affidavit of the defendant's solivance without first setting citor, that two persons therein named had offered an adconfirming the vance of 6001.

On the 28th of April, Redmond applied to sale. And that discharge that notice on an affidavit stating that the persons to be set aside named in the former affidavit had declared publicly that but on grounds they did not intend to become purchasers : on this applica

tion the Lord CHANCELLOR directed Redmond to proceed to

aside the order

(a) Vid. ante, 107. This cause came before the court on other points.

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1804.

Executors of
FERGUS

V.
GORE.

confirm the sale, and he did accordingly pay the remainder of his purchase money into the bank, and on the 5th of May obtained an absolute order to confirm. On the 8th of May, Redmond moved at the rolls that the defendant should furnish a state of the title, and lodge the title deeds with the master; when the court was pleased, at the instance of defendant's counsel, (who moved to shew cause against confirming the sale) to order that the lands should be again set up for sale.

Mr. Guinness, on behalf of Redmond, now moved to set aside the order made at the rolls.

Lord CHANCELLOR.

The sale had been confirmed before the application at the rolls was made, and there was therefore no jurisdiction in the court to make this order. If the sale was confirmed unfairly behind the backs of the defendants, or of parties intending to bid, they should have moved to set aside the order confirming the sale ; but I can conceive no ground on which the sale could have been set aside, except fraud on the part of Redmond.. But the mere suggestion of counsel at the bar that there are persons disposed to bid in advance, is not a sufficient ground to have the lands set up again, after a sale confirmed, merely to try whether such persons will come forward or not.

It is a general complaint that estates sold under decrees of this court go at considerable under-value: the cause of this is the trouble purchasers are put to in completing their purchases. If greater strictness were observed in opening biddings, it would have the effect of procuring better sales.

The order set aside, with costs.

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May 16

The bill prayed that an agreement for a lease made An infant cannot avail him- between the father of the plaintiff and the defendant Leslie self of his infancy to excuse might be carried into specific execution, or that the lease the non-assertion of his right granted by Leslie to the husband of the defendant Griffin under an exec- might be decreed a trust for the plaintiff, and an account of utory agreement made the rents and profits, &c. with his ancestor, where the immediate per In 1775, Mr. Leslie agreed by parol with the father of formance of his part

of the con- the plaintiff, to grant him a lease of lives renewable for tract is essen

ever of the lands in question, and gave him possession actial to the interest of the other cordingly, the tenant agreeing to lay out a certain sum on contracting party.

the premises within three years. «In 1777, (about a year Renewal of and an half after the agreement) the father of the plaintiff a lease taken by a trustee,

died, leaving plaintiff his eldest son and heir at law, an shall enure to infant of two years old. Maurice Griffin (the husband of the benefit of the cestui que

the defendant Mary Griffin, andi unde to the plaintiff) thereupon took upon himself the management of the family affairs under a letter of attorney from the plaintiff's mother, but was neither executor nor administrator of the deceased, nor guardian to the infant.

trust.

The only proof of the agreement was the admission in the answer of the defendant Leslie ; and it stated that on the death of the plaintiff's father, Leslie, not finding any person coming forward on behalf of the infant to lay out the money covenanted to be laid out, and to accept the lease pursuant to the agreement, and there appearing no probability that any person would come forward, (though he had offered, through the uncle, to execute the lease if any body

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