Chancery. Held, that this deed did not render the simple contract debts specialty, and that bond creditors were not entitled to more than the penalty of the bond. Clowes v. Waters, 326. Discharge of, by subsequent Agreement.] See PRINCIPAL AND SURETY. BURDEN OF PROOF. See DEED. CASES EXAMINED, OBSERVED UPON, DOUBTED, &c. Blakely v. Brady, 2 Drury & Walsh, 311, followed,. Cadogan v. Sloane, Sugd. V. & P. 1119, commented upon, Edwards v. Jones, 1 Mylne & Craig, 266, commented upon, 120 215 296 129 350 268 130 127 368 120 278 76 364 190 Hughes v. Wynne, 1 My. & K. 20, approved, Hunter v. Nockolds, 1 Mac. & Gord. 654, followed, 330 190 Motteux v. London Assurance Co., 1 Atk. 545, approved, Johnson v. Kennett, 6 Sim., examined, Midland Co. Railway Co. v. Westcomb, 11 Sim. 57, as to costs, not followed, Milbourn v. Ewart, 5 Term R. 381, commented upon, Mills v. Banks, 3 P. Wms. 1, considered, Napier v. Napier, 1 Dru. & War. 416, commented upon, Page v. Adam, 4 Beavan, 269, examined, Philanthropic Society v. Kemp, 4 Beavan, 581, observed upon, Richards, ex parte, 1 J. & W. 264, doubted, but followed, 170 68 Upfill's case, 2 H. L. C. 674; Eng. Rep. 13, commented upon, 261 366 120 Wheatley v. Purr, 1 Keen, 551, followed, CHARITABLE LEGACIES. 1. Payment of] A testator bequeathed to the treasurer for the time being of the General Infirmary at Leeds, the sum of 10,000l. to be raised and paid out of such part of his ready money, goods, and personal effects as he could by law charge with the payment of the same; and he made other charitable bequests in similar terms, besides a number of bequests to individuals, given generally, and not made payable out of any particular portion of his property. The testator's estate consisted partly of pure personalty and partly of personalty savoring of realty, the latter being more than sufficient for the payment of the general legacies: Chancery. Held, (reversing a decision of the Vice-Chancellor, Knight Bruce, by which the charity legacies were directed to abate in the proportion which the personal estate savoring of realty bore to the whole personal estate, and without reference to the ques‐ tion of what was the precise character to be attributed to the charity legacies, but having regard only to the intention of the testator, to be gathered from the will,) that the general legacies ought to be paid out of the personalty savoring of realty, so as to leave the pure personalty for the payment of the charity legacies. Robinson v. Geldard, 63. 2. Statute of Mortmain.] Held, also, though not as the ground of the decision, that in the present case the charity legacies were analogous to and had the same incidents as demonstrative legacies to individuals, except so far as regarded the right of satisfaction out of other assets than the fund out of which they were directed to be paid, a right from which they were debarred by the Stat. 9 Geo. 2, c. 36. Ib. 3. The cases of The Philanthropic Society v. Kemp, (4 Beav. 581,) and Sturge v. Dimsdale, (6 Beav. 462,) observed upon. 1b. 1. The rights of the parties interested in the proceeds of the sale of land situated out of Chancery. the jurisdiction, do not cease to be governed by the lex loci rei sita by the circumstance of such proceeds being brought in specie within the jurisdiction. Waterhouse v. Stansfield, 206. 2. A law permitting alienation of land, only upon the terms of the proceeds being applied in a particular manner, is a restraint upon alienation; and restraints upon the alienation of land are always governed by the lex loci rei sitæ. Ib. 3. Whether the court will enforce against defendants, having in their hands proceeds of the sale of land situated out of the jurisdiction, the equities to which such proceeds would have been subject if the land had been situated within the jurisdiction, depends upon the question, whether the contract which is sought to be enforced was or was not, by the lex loci rei sitæ, capable of being fulfilled. Ib. 4. If a contract relating to land situated out of the jurisdiction be one which the lex loci rei sita renders incapable of fulfilment, the court will not enforce the contract against the proceeds of a sale of such land coming to the possession of parties within the jurisdiction, though they take such proceeds bound by the same equities as affected the party to the contract under whom they claim. CONSIGNMENTS. Ib. After the appointment of a receiver of the tithes and profits of a vicarage, a creditor of the vicar, having obtained judgment, caused a sequestration to be issued, directed to the same person who was receiver. A motion having been made to commit the creditor, no order was made on the motion, the creditor paying the costs, and undertaking to deal with the tithes as the court should direct. Hawkins v. Gathercole, 347. CONTRIBUTORY. See WINDING UP ACTS. CONVEYANCE. See DEED. COSTS. 1. Creditor's Suit.] A creditor's bill was filed after notice of a decree in a simple administration suit by one of the next of kin of the intestate, but the decree was at that time imperfect in not containing the usual preliminary inquiries; the frame of the creditor's suit was also different in making the heir at law a party, and in containing charges as to real estate, and as to the destruction of documents. The creditor's suit having been brought to a hearing, the Vice-Chancellor made an order, directing the plaintiff to pay a stated sum to the heir at law in lieu of costs, and ordered the administratrix to pay the plaintiff's costs of suit: Held, that inasmuch as the creditor might have obtained all the relief to which she was Chancery. entitled in the former suit, the bill ought to have been dismissed with costs; and that, under the circumstances, the appeal to the Lord Chancellor did not fall within the rule precluding an appeal for costs. Menzies v. Connor, 39. 2. Where Charge is not sustained.] A bill contained charges of fraud, which were neither supported nor repelled by evidence; but, inasmuch as the costs were not increased by such charges: Held, that the costs of the suit ought not to be affected thereby. Staniland v. Willott, 42. 3. Lunatic.] The costs of the proceedings for obtaining from the committee of a lunatic a reconveyance of premises mortgaged to the lunatic will be ordered to be paid out of the lunatic's estate, where the lunatic is beneficially interested in the mortgagemoney, and the petition is presented by the committee. Wheeler in re, 169. This rule will not, however, be acted on if the mortgagor presents the petition, unless in cases where the committee has declined to take that step. Ib.. 4. It is not, necessarily, sufficient, to entitle trustees to their costs of a quit, that they have acted under the advice of counsel. Devey v. Thornton, 197. 5. Of conveying Real Estate.] J. S. contracted to sell hereditaments to H., but, at the request of H., (who intended to build, and sell in lots,) the conveyance was delayed. In the meantime J. S. died intestate, and a bill became necessary for the completion of the contract: Held, that the costs of the suit, which was rendered necessary by the intestacy of J. S. ought not to be thrown on his estate. Hinder v. Streeter, 345. 6. Payment into Court] Executors, being informed that a bill was about to be filed against them by a person entitled to a share of residue, charging them with breaches of trust, paid a sum of money into court, under the Trustee Relief Act, as the share of that person. The bill was afterwards filed, and on an application for payment out of court by the person entitled, the trustees were not allowed their costs. Waring in re, 351. See ATTORNEY. TRUSTEES. See Grove v. Bastard, 76. COURT OF LAW.. Questions on which it is proper for the Court of Chancery to send cases for the opinion of courts of common law, or to seek the assistance of the judges of such courts, under the statutes 13 & 14 Vict. c. 35, s. 14; and 14 & 15 Vict. c. 83, s. 8, or otherwise. Falkner v. Grace, 213. CREDITOR'S SUIT. 1. Costs.] A creditor's bill was filed after notice of a decree in a simple administration suit by one of the next of kin of the intestate, but the decree was at that time imperfect in not containing the usual preliminary inquiries; the frame of the creditor's suit was also different in making the heir at law a party, and in containing charges as to real estate, and as to the destruction of documents. The creditor's suit having been brought to a hearing, the Vice-Chancellor made an order, directing the plaintiff to pay a stated sum to the heir at law in lieu of costs, and ordered the administratrix to pay the plaintiff's costs of suit: Held, that inasmuch as the creditor might have obtained all the relief to which she was entitled in the former suit, the bill ought to have been dismissed with costs; and that, under the circumstances, the appeal to the Lord Chancellor did not fall within the rule precluding an appeal for costs. Menzies v. Connor, 39. See PRACTICE. Chancery. DEED. 1. By an Illiterate Person.] An illiterate person who could not write, signed an instrument, purporting to grant all his property to his wife as her sole and absolute property, and shortly afterwards died. On a suit instituted by the wife, to have the husband's heir declared a trustee for her: Held, that it was incumbent on the plaintiff to show that the grantor understood the nature of the instrument: and, as the evidence merely showed that the instrument had been read over to the grantor by an unprofessional person who had prepared it, and as to whose capacity to explain it there was no evidence, except such as rendered such capacity very doubtful, the bill was dismissed. Price v. Price, 144. 2. Construction of.] See BONDS. DEPOSIT. Of money under the Lands Clauses Consolidation Act.] See p. 138. DEVISE. 1. A testator devised all his real estates (except the hereditaments thereinafter particularly devised), including all estates vested in him upon trust or by way of mortgage, to trustees upon certain trusts; in a subsequent part of his will he devised his farm in A. in the possession of T. H. to T. R. He had two farms in A., called respectively S. and M., both of which were in the possession of T. H., but at different rents. On a question being raised, which of these two farms the testator intended to give to T. R: Held, that the devise must be taken to have been made to T. R. for his personal advantage, and not upon trust; and if, therefore, it could be ascertained that one of the farms was subject to a trust, or that the testator supposed or treated it to be so, it must then be inferred that such farm was not the one intended to be devised, but that the other was the one referred to by the testator. Blundell v. Gladstone, 52. 2. In the present case, it was sufficiently established by the evidence, that during the lives of the testator and his father, the proceeds of the farm S. had been regularly paid to a Roman Catholic priest, and that the testator had uniformly dealt with it in conformity with a real or supposed trust affecting it for this purpose: Held, therefore, that he must be taken to have intended to comprise it in the general devise of trust estates, and that consequently the farm M. was the one devised to T. R. lb. See MORTGAGE. TRUSTEES. WILL. DIOCESAN PROBATE. See TRUST FUND. DIRECTORY. See TRUSTS. DISCHARGE. See PRINCIPAL AND SURETY. |