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my said son Frederick Winch, shall liquidate such debt by instalments of not less than 50%. in each of the first five years of such period of six years, the first instalment to be paid at the expiration of twelve calendar months from the day of my decease." And the testator appointed the said Mary Radcliffe and Amy Winch executors, and "he impowered them, notwithstanding anything therein contained which might appear to be construed to the contrary, to compound or allow time for the payment of any debt or debts due to his estate, and to satisfy all dividends against his estate, whether supported by strictly legal evidence or not, and to settle all accounts between him and any person or persons, on such terms as they, his said executors, should in their discretion think expedient, and to refer any matters in difference relating to his affairs to arbitration."

Mary Radcliffe renounced, and the will was proved by Amy Winch alone on the 5th of February, 1850.

On the hearing, assets were admitted to have been received by the defendant to the amount of 26381.; and it was admitted that she had paid the funeral and testamentary expenses, and debts of the testator, to the amount of 27351. It was also admitted that no money had been paid by Frederick Winch to the defendant in respect of his debt; but that she had, in the month of January, 1851, commenced an action of debt against him, in the court of Exchequer, and obtained final judgment (in an undefended action) for 6817. 178. 10d., besides 211. 128. 7d. for interest.

The judgment was obtained on the 26th of February, 1851 but the defendant did not take any further proceeding under the judgment until the 15th of January, 1852, when a fi. fa. was issued, and the stock in trade and effects of Frederick Winch (who was a trader at Margate) were seized. The execution was, however,

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1853.

WINCH,

App.,

WINCH,

Resp.

1853.

WINCH, App., WINCH, Resp.

defeated by the subsequent bankruptcy of Frederick Winch.

The plaintiff, under the circumstances, sought to charge the defendant with assets, alleging that she, the defendant, was liable to the payment of the legacy, upon a devastavit.

The court, however, doubting its jurisdiction, gave judgment for the defendant,-against which the plaintiff appealed.

The question for the opinion of the court is, whether, under the 65th section of the 9 & 10 Vict. c. 95, as extended by the 13 & 14 Vict. c. 61, the judge of the county-court had jurisdiction to charge the defendant, under the circumstances, with the payment of the legacy.

Byles, Serjt., for the appellant. The 65th section of the 9 & 10 Vict. c. 95, enacts "that the jurisdiction of the county-court under this act shall extend to the recovery of any demand, not exceeding the sum of 201, which is the whole or part of the unliquidated balance of a partnership account, or the amount or part of the amount of a distributive share under an intestacy, or of any legacy under a will." By the 13 & 14 Vict. c. 61, s. 1, the jurisdiction of the county-courts is extended "to the recovery of any debt, damage, or demand not exceeding the sum of 501., and to all actions in respect thereof (save and except the several actions specified in the proviso in s. 58 of the former act); " and it is enacted that the several powers and provisions of the 9 & 10 Vict. c. 95, and 12 & 13 Vict. c. 101, and all rules, orders, and regulations which have been or may be made in pursuance of the said acts, or either of them, "shall extend to all debts, damages, and demands which may be sued for in the said courts, or any of them, not exceeding

the sum of 50., and to all proceedings and judgments for the recovery of the same, or otherwise in relation to the same respectively, as fully and effectually, to all intents and purposes, as the same respectively are now or may be applicable to debts, damages, and demands within the present jurisdiction of the said courts." It is difficult to see upon what the judge's doubt as to his jurisdiction rested. [Channell, Serjt. In truth, the judge doubted whether the statute intended to give him an equitable jurisdiction in the case of a legacy, or whether it was confined to the case of an express promise to pay; and, further, whether he could try a question of devastavit.] The statute gives the county-court all the jurisdiction which a court of equity would have. In Pears v. Wilson, 6 Exch. 833, it was held, that, where real and personal property is left by will to executors, upon trust to sell, and, after payment of certain legacies, to divide the residue among certain persons, the share in such residue is a "legacy" within the 9 & 10 Vict. c. 95, s. 65, and the county-court has jurisdiction to adjudicate on a claim made by one of such persons for his share in the residue, in a plaint against the executors. The judge must clearly have jurisdiction to try whether or not the assets have been wasted.

Channell, Serjt., for the respondent. Pears v. Wilson is distinguishable from the present case: nor is the difficulty removed by the 177th of the rules of practice made in pursuance of the 12 & 13 Vict. c. 101, s. 12, which provides that "a party suing an executor or administrator, may charge in the summons, in the form in the schedule, that the defendant has assets, and has wasted them." Although the defendant here is sued as executrix, she is in truth a trustee. She had no power to call in the debt before a given time: but she had a

1853.

WINCH,

App., WINCH,

Resp.

1853.

WINCH, App., WINCH, Resp.

discretion to compound or to give time for the payment of any debt. [Maule, J. That would be very good evidence on the question of devastavit.]

JERVIS, C. J. There must be a new trial. The judge, whatever doubt he might have entertained, would have acted more discreetly if he had tried the cause. It is much to be lamented that counsel were not employed in such a case.

Byles, Serjt., asked for costs of the appeal.

JERVIS, C. J. As the question was raised by the judge himself, we think there should be no costs.

The rest of the court concurring,

Rule absolute for a new trial, without costs.

1853.

QUARTERMAINE and PLEWS v. BITTLESTON and Others.

THIS
was an action of trover, to recover certain fur-
niture, goods, and chattels, alleged to have been con-
verted by the defendants. The defendants pleaded,-
first, not guilty,-secondly, not possessed. Upon which
pleas issue was joined.

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the

The cause came on for trial before Maule, J., at last Spring Assizes for Leicester, when a verdict was found for the plaintiffs, damages 6217. 16s. 10d., subject to the following case :

The plaintiff's claim the goods in question as trustees under an indenture of assignment and settlement, dated the 29th of January, 1851, and made between Elizabeth Cuff of the one part, and the plaintiffs of the other part, whereby the furniture and effects in question were assigned by Elizabeth Cuff to the plaintiffs, upon certain trusts in the indenture mentioned.

The defendants were the official and trade assignees of the estate of Edward George Cuff, a bankrupt, and had sold the goods as such assignees. The question was, whether the defendants were entitled to sell the goods, under the 125th section of the bankrupt law consolidation act, 12 & 13 Vict. c. 106, as having been, by the consent and permission of the plaintiffs, the true owners thereof, in the possession, order, or disposition of the bankrupt as reputed owner.

The goods in question formed part of the furniture and effects of the Bell Hotel at Leicester; and the greater part of them were formerly the property of Mr. Arthur Boyer, who kept and carried on the hotel before

and until the early part of 1847, when he contracted to let the hotel to the bankrupt, and to sell him the furni

Jan. 20.

An order by a

commissioner

in bankruptcy "that all goods and chattels

which at the

time the said A. B. became

bankrupt, were, and permission

by the consent

of the true

owner thereof,

in the possession, order, or

disposition of

the said A. B.,
whereof the
said A. B. was
reputed owner,
or whereof he
had taken upon

himself the

sale, alteration, or disposition as owner," should be sold

for the benefit

of the creditors,

is not a compliance with the 125th section of the

12 & 13 Vict.
c. 106; it must

specify the par-
ticular goods
which are to be

so sold.

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