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1833.

jury. That sum was found due by way of damages ; and the Court, if it has jurisdiction at all, must begin the inquiry as if the matter were fresh, must satisfy itself in the usual way, and cannot assume that the compensation awarded before was the just measure of the injury sustained.

INS

PARKINSON,

But is it necessary to decide, in this stage of the proceeding, whether or not the relief sought is within the province of this Court? If it be not, cadit quæstio. But, though it be, has the party a right to the writ he has obtained ? I hold that, where the equity is clear, though the facts may be in dispute, the allegation of the debt on oath, or the swearing to belief of a balance due, may entitle the party to a writ, in order that he may hold the debtor to bail; but that, where the equity is matter of grave doubt, however specific his allegation of debt may be, he shall not, generally speaking, have his writ; at least, I am not aware of a ne exeat having been issued under any such serious doubts of the equitable jurisdiction. Do y

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But there is here a consideration which disposes of the case at once. It is not denied that the party has his remedy at law. The verdict obtained is gone gone, it may be, by the laches of the Plaintiff in the suit, or it may be by the alleged contrivance of the Defendant's attorney; although, it may be observed, in passing, that no such contrivance could have eluded the justice of the Court of King's Bench for six hours, had the Plaintiff used due diligence. However, be the fault where it may, the verdict is gone, and the Plaintiff's executors cannot use it. They may, therefore, bring an action again; and whether they can hold the Defendant to bail or not, is immaterial, though it is not said why they cannot. If he has already been arrested, that

of

1833.

JENKINS

PARKINSON.

of itself is a conclusive answer to the application for a ne exeat ; if not, no reason is given why he may not be arrested now in a new suit. But the writ is strictly confined to cases where the party has no remedy at law, unless in the excepted cases of a decree obtained for alimony, and of a balance sworn to upon an account. All the authorities are against stretching this exception. In Raynes v. Wyse (a), Lord Eldon plainly considered that he could not grant the writ on allegation of a sum due on an agreement, the performance of which was resisted, althougn he decided upon another point, — the previous holding to bail at law. In Ex parte Duncombe (6), the demand being legal, though there was an obstacle in the way of suing at law, the writ was refused. So it was in Gardner's case (c), where the demand was legal; but the party could not be held to bail. In Blaydes v. Calvert (d), where the suit was for performance of an agreement to give security for a third person's debt by way of acceptance for a given sum, Lord Eldon after full consideration refused the writ. There, as here, it was suggested, that the party could not be held to bail at law; but Lord Eldon said that was no matter for his consideration. It is needless to go through the other cases, which are more familiar; but two valuable notes of Lord Eldon's remarks on the subject, - one in Pares's case, in 1801, communicated by Mr. Bell, the other in Butler v. Dorant, in 1809, communicated by Mr. Cooke, - are to be found in the last edition of Mr. Beames's treatise (e); and they shew the clear opinion of that most learned Judge to be against issuing the writ in circumstances much more favourable, and much more akin to the ordinary case, than those alleged upon the present occasion.

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1833.

The order must, therefore, be discharged. But, considering the length of time that the Defendant has delayed making this application, and the great hardship of the plaintiffs' case, who must needs lose their costs at law of the second action, I shall direct the costs of the motion to be costs in the cause.

KINS

0. ARKINSON.

HOME V. PILLANS.

Nov. 19, 20.25.

THE will of William Mitchell contained, among Bequest to a

others, the following bequest:-"I give and bequeath to my nieces Catherine and Mary, the sisters should attain

v twenty-one, to of the said David and John Home, the sum of 20001. sterling each, when and if they should attain their ages separate use;.

and in case of of twenty-one years, and which said legacies to my said her death, two nieces I give to them for their and each of their leaving chil

dren, her own sole and separate use, free from the debts or con- share to go to trol of their or either of their husbands; and in case of

her children :

Held, to vest the death of my said nieces or either of them leaving an absolute

interest in the children or a child, I give and bequeath the share or

legatee on her shares of such of my said nieces or niece so dying unto attaining

twenty-one. their or her respective children or child.” The residuary clause of the will gave the residue of the testator's personal estate to trustees, upon trust for his nephew William C. Macpherson, to be transferred and paid to him when and if he should attain the age of twenty-one; and it then proceeded in these words :-“ And in case of his death under that age, then to my said nephews David and John Home and to my said nieces Catherine and Mary Home, in equal shares and proportions; the shares of my said nieces to be enjoyed by them respectively for their respective lives for their own sole and separate

use,

1833.

HOME

use, free from the debts or control of their respective husbands, and on their death the share of each of them to go to their respective children ; the children of each to take the share of their respective parents equally.”

PILLANS.

The MASTER of the Rolls held that the interest taken by each of the testator's nieces in the 20001. legacy did not become absolute on their respectively attaining the age of twenty-one, but continued to be subject to an executory bequest over in the event of their leaving children living at their death; and an appeal was brought from that decision.

Sir E. Sugden and Mr. Moore, for the appeal, contended that, upon the true construction of this will, the testator must be considered as having given to his nieces, when they came of age, an absolute interest in their respective legacies. There was a gift of the corpus of the fund to the nieces ; and, in case of their death, that is, their death under twenty-one,- for their death, at some period or other, was not a contingency, but a certainty, and for which therefore a testator would not naturally provide, - before their legacies vested, then over to their children, if they had any, the intention being that the children should stand in the place of their parents, and take the bequests which would otherwise have lapsed.

The authorities, all of which were consistent with this construction, might be ranged into two classes : they were either cases where the property was bequeathed to one person, and there was then a bequest in case of his death to another, which was held to be a substitutionary gift to the second in the event of the first dying in the testator's lifetime, or the bequest was to the legatee at a specified period, and then the death, in the 1833.

HOME

PILLANS.

event of which there was the gift over, was construed as a death before that period, when, by the terms of the bequest the interest was to become vested. The case at bar fell within the latter description, and was to be decided upon the same principle as Slade v. Milner (a), Hinckley v. Simmons (6), Ommaney v. Bevan (c), Galland v. Leonard (d), Hervey v. M'Laughlin (e) and Doe v. Sparrow. (g) If the testator had meant to restrict his nieces to a mere life interest in their legacies (and the construction contended for on the other side would really leave them no more), he knew perfectly well how to have done so, and would have expressed himself in the same unequivocal language as he used in the residuary clause.

Mr. Kindersley and Mr. Soltau, contrà.

The gift to the nieces in the residuary clause is simply for their lives, and is expressed in accurate and unambiguous language. But the terms, in which the 2000). legacies are given, confer a very different and much larger estate: not indeed an absolute interest, but an interest which will become absolute and indefeasible in the event of their dying without leaving children, and disposable, therefore, in that event by the deed or will of the legatees. It is admitted that in form and substance this would be a good executory bequest; for whenever a testator bequeaths property to a person in words which import an absolute gift, and then goes on to provide that, upon the happening of a certain event, the property shall go over to another, if the event specified be within the legal limits as to time, the ulterior gift is supported as a valid executory bequest.

That (a) 4 Mad. 144.

(d) i Swan. 161. (6) 4 Ves. 160.

(e) i Price, 264. (c) 18 Ves. 291.

(g) 13 East, 359. Vol. II.

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