Lord Loughborough.-If you had brought your bill on a bond, and there had been no demurrer, the bill must nevertheless have been dismissed. I see no reason therefore for the evidence being entered as read. But Mr. Hollist pressing the matter that in case of an appeal, no evidence could be read above which was not read here, and desiring that the evidence might either be entered as read, or the request and refusal by the Court be taken notice of—it was entered as read. It came on now before Lord Thurlow, upon a re-hearing, when his Lordship was of opinion that a special purpose appearing for the bond to Hargrave, and that it was not to give a general credit, the plaintiff was not entitled to the remedy prayed, and therefore affirmed the Lord Commissioners orders of dismission (a).

(a) As to the liability of the assignee of a chose in action to all the equities to which it was subject in the hands of

the assignor, vide Austen v. Davies, post, vol. iii. 178. and the Editor's note

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Lincoln's-Inn

Hall.

am worth," will pass real estate.

(m) HUXTEP v. BROOMAN.

Devise of "all I THIS was a bill for an account of the real and personal estate of the testator, under a most singular will." Feversham, November 1783. This being my last will and testament, I give and bequeath to Mary, daughter of Mary Huxtep, and likewise to the son and daughter of Susan Topley, all the overplus of my money; and likewise beg of my executor, that he will pay into the hands to the above children's friends, all the money that is due to me on settling my father's account.(a) Friday, I give and bequeath to them, all I am worth, except £20, which I give to my executor Mr. Thomas Brooman-signed Edward Brooman - witness William Dean, Elizabeth Roots, and underneath, about the middle of the paper, Sarah Coslon."-The word worth was nearly obliterated, and the whole will bore manifest proof of the testator's being very illiterate. The testator was entitled to a share with his brothers, in a gavel-kind estate, which had lately descended by the death of his father; and the only question was, whether this will passed the real estate.

Mr. Mansfield, for the plaintiff, barely said-all he is worth, must pass the real as well as personal estate.

(m) Vide Cliffe v. Gibbon, 2 Lord Raymond, 1324.

(a) Lord Chief Justice Gibbs, 7 Taunt. 81. in commenting upon this case, took particular notice of the word Friday being inserted in the writ

ing; that the latter was a substantive bequest, standing independent of the prior part of the will.

Mr.

Mr. Madocks and Mr. Harvey, for the defendants, insisted that here being no expression in the will which pointed at the real estate, only the personalty could pass; no determined case has come up to the present. They are mostly accompanied with the circumstance of there being introductory words in the will, which shew that the testator intended to dispose of his whole property. In Bowman v. Milbank, 1 Eq. Ab. 208. All to my mother, was held not to pass lands.

Lord Chancellor observed-that that was the case of a nuncupative will, and thinking it clear that the terms all I am worth, without other words to controul them, must pass real as well as personal estate, decreed for the plaintiff (a).

(a) For the doctrine upon this subject, and the application of the words estate, property, effects, and similar expressions, to real estates, vide Mr. Cox's note to Barry v. Edgeworth, 2 P. W.523. Cave v. Cave, 2 Eden, 139. Hogan v. Jackson, Cowp. 299. Doe v. Butler, 6 T. R. 610. Doe v. White, 1 East, 33. Camfield v. Gilbert, 3 East, 516.

Barnes v. Patch, 8 Ves. 604. Woollum
v. Kenworthy, 9 Ves. 187.
Doe v.
Lainchbury, 11 East, 290. Doe v. Lang-
land, 14 East, 371. Doe v. Trout, 15
East, 394. Roe v. Yeud, 2 T. R. 214.
Doe v. Dring, 2 M. & S. 448. Nicholls
v. Butcher, 18 Ves. 193. Doe v. Rout,
7 Taunt. 81.

1785.

HUXTEP

v.

BROOMAN.

HALL V. SMITH.

THIS
HIS was a plea to a bill of revivor, in a case where nothing
remained but the matter of costs, which had been ordered to
be paid into the Bank, and being unpaid at the time of the death
of the party, the question was, whether a bill of revivor would lie
against the representative. In support of the plea it was argued,
that where the party who is to pay costs dies, it is a personal debt,
and dies with him, unless the costs are ordered to come out of a
particular fund; although where the party who is to receive the
costs dies, his representative shall have his remedy against the party
decreed to pay. For the plaintiff, it was objected, that this doc-
trine only held where the costs were not taxed, but that as soon as
the costs were liquidated, the debt was become certain, and it was
proper matter for a bill of revivor and supplement, as in truth this
was, it praying an account and payment out of assets. The cases
cited at the bar, were White v. Hayward, 2 Ves. 461. Johnson v.
Peck, 2 Ves. 465. Kemp v. Mackrel, 2 Ves. 579. and 3 Atk. 812.
Blower v. Morrets, 3 Atk. 772.-To these the register added, from
a manuscript book, the case of Edgel v. Brown, to the same effect.

Lord Chancellor thought the costs having been taxed, this case was not within the general rule, and made it certainly matter of revivor; if they had not been taxed he might have laid hold of the circum

stance

[438]

S. C.
2 Dick. 649.
Lincoln's-Inn
Hall.

Plea to bill of revivor for costs paid into the Bank, over-ruled,

ordered to be

1785.

HALL

v.

SMITH.

stance of their having been ordered to be paid into the Bank, as taking the case out of the rule: and therefore over-ruled the plea (a).

(a) The doctrine upon this subject was much discussed in Morgan v. Scudamore, 2 Ves. jun. 313. 3 Ves. 195. Jenour v. Jenour, 10 Ves. 572. and Lowten v. The Mayor and Commonalty of Colchester, 2 Meriv. 115. The exceptions to the rule that there shall be no revivor for costs alone, are, 1st, all cases where the costs have been taxed previous to the abatement; 2dly, where

the costs have not been liquidated by taxation, but have been decreed to be paid out of a particular fund; Sdly, revivor has been permitted on the death of the plaintiff, though before the report, and though they were not to come out of a particular fund. As to appeals or re-hearings for costs, vide Wirdman v. Kent, ante, 140.

[ 439 ]

EASTER TERM.

25 GEO. III. 1785.

Trustees were directed to be inhabitants of B. An information

to remove them,

because not inha
bitants, must
shew there were

proper per-
sons in B. to be
trustees.

THIS

ATTORNEY-GENERAL V. COWPER.

HIS was an information for the purpose of removing trustees of a charity-school at Blencowe, in the county of Nottingham. The founder had devised lands, after the decease of his wife, to trustees, for the purpose of supporting the school, and had directed that so often as his said trustees should be reduced to two, such two survivors should nominate a certain number of persons, being inhabitants of Great or Little Blencowe. The objection taken to the trustees was, that they were not inhabitants of either of the Blencowes.

Mr. Attorney-General, in support of the information, cited a case of the Attorney-General v. France, before Mr. Baron Eyre, sitting for Lord Chancellor, 1780, where there was a similar devise, and said that Mr. Baron Eyre thought the circumstance of inhabitancy so material, that he removed the trustees on that ground only.

Lord Chancellor said-he could not but doubt that case to have been determined upon this ground. He conceived there must have have been some special ground which did not now appear: but in this case there should have been evidence to shew that there were proper persons in Blencowe to be trustees, and the trustees neglected to elect them.

Information dismissed, with 40s. costs.
SHIRLEY

SHIRLEY V. STRATTON.

THIS
HIS was a bill for the specific performance of an agreement
for the purchase of an estate in marsh-land at Barking in
Essex, and for payment of a sum of £1,000, the purchase-money.
The defence was, that the estate was represented to the defendant
as clearing a neat value of £90 per annum, and no notice was
taken to him of the necessary repair of a wall to protect the estate
from the river Thames, which would be an out-going of £50 per
annum. And it appearing upon evidence that there had been an
industrious concealment of the circumstance of the wall during the
treaty (a).

Lord Chancellor dismissed the bill, but without costs.

(a) As to relief against fraudulent suppression of some defect in an estate, vide Grant v. Munt, Coop. Rep.

173. Ellard v. Lord Llandaff, 1 Ba. &
Be. 241. Sugd. Vend, & Purch. 261.
et seq.

(0) NIGHTINGALE T. LAWSON.

THIS
HIS bill was filed against the defendant Isabella Lawson, as
executrix of Elizabeth Barnard, who was also executrix of
her late husband Ernest Barnard, for an account of the personal
estate of Ernest Barnard. The defendant in her answer insisted
on being allowed sums of money paid by Mrs. Barnard during her
widowhood to the city of London, for fines and expences of the
renewals of leases of the Brawn's Head Tavern, and another house
in Bond-street, which had been made the subject of a settlement
on her marriage with her late husband, and also of the will of the
said Ernest Barnard of the 19th May, 1750, by which he gave to
his said wife, all the residue of his estate (in which these houses
were included) during her widowhood, but after her decease or
marriage gave the same to the plaintiffs, who were her brothers.

The cause had been heard before the late Sir Thomas Sewel, and by him referred to the Master, who had reported a certain sum. Exceptions had been taken, and it had come on upon a re-hearing the 8th of May, 1784, when the Lord Chancellor referred it to the Master to state the circumstances and expence of the several renewals.-These appeared upon the Master's report to be as follows:-the original lease was for the term of ninetynine years, which would expire in 1776. At the death of Ernest Barnard fifteen years were unexpired. On the 10th of December, 1754, Mrs. Barnard agreed with the committee of city lands for a

(o) White v. White, 4 Ves. 24, in which case this question seems to have been fully discussed,

lease

Tenant for life renews and pays portion he shall fines,-what probear with the remainder-man, &c.

[441]

1785.

v.

LAWSON.

lease for twenty-eight years from Lady-day, 1766, in order to make up her term forty years from Lady-day, 1754. For this NIGHTINGALE renewal she paid £210 for the Brawn's Head, (being three years rent, deducting a ground rent) with interest upon that sum for three years, at the rate of £5 per cent. and also 2s. yearly till the commencement of the term of twenty-eight years, as an acknowledgment of the right of the city, also a ground rent of 10s. per annum during the term of twenty-eight years; and for the other house she was to pay a fine of £131. 5s. being also three years improved rent, after deducting a ground rent, with the like interest, and a like rent of 2s. and the leases were to be renewable every fourteen years for ever, upon payment of a fine of one year's improved rent.-Accordingly on the 30th of April, 1755, Mrs. Barnard paid into the chamber of London, the following sums:

On the 12th of March, 1768, she again renewed the leases for a further term of fourteen years, in order to complete her term of forty years. She then paid

[ 442 ]

Eleanor Barnard died the 2d February, 1775, which was nine years after the commencement of the renewed term, and by her will gave all her personal estate to the defendant, and appointed her sole executrix.-The Master in his report proceeded to value the advanced payments, and stated that twelve years of the original term being to come, and Mrs. Barnard having renewed for a term of twenty-eight years, to commence at the expiration of the first term, at the expence of £418. 10s. 9d. and also incurred an increased rent of 2s. a year, and the said sum having been paid

twelve