it was contended, that the effect of that, though not to destroy the debt, was to take away its priority as a specialty debt. Their lordships were dealing with that question only as an equitable question, and the law of the case was on the present occasion immaterial. They were of opinion that, in equity and in substance, the debt remained exactly as it was, exactly as it would have done if a stranger had been the executor. The second point on which their lordships did not think it necessary to hear the respondents' counsel was the lien said to have been given to the house of Higginson, Irlam, and Company for their debt, by the direction in the will to consign the produce of the testator's estate to them, until their debt should be discharged. Their lordships were of opinion that that was a point open to reasonable argument. They did not, however, pronounce any judgment upon that. They did not think it necessary to say how they would have dealt with it, if the point had been properly before them, for they were of opinion that it was not so. There was not the least trace of the point having been made before the Master to whom the matter was referred, or before the Court; and it would be too much to say, that when the case is before a Court of Appeal upon exceptions merely, that a point of that description, raised neither before the Master nor before the Court, should be capable of being raised in the Court of last resort. That, therefore, furnished no ground of appeal. The remaining ground upon which the respondents' counsel were heard, was the question of equitable assets, a question dividing itself into two branches: one, whether the effect of the stat. of Geo. 2. was to render the real estates equally divisible among all the creditors of whatever rank? And, if it were not so, whether it was competent to a testator seised of such property, to disappoint or change the legal distribution of the assets, by directing an equal distribution, which, in effect, the testator had attempted to do in the present case? Their lordships had considered the first branch of this question with all the attention due to it upon its own account; and, moreover, by reason of the matter in which it appeared to have struck a learned and distinguished judge, now deceased, before whom the point was brought, and who appeared, according to the Report, to have given an opinion upon it, in the case of Charlton v. Wright (a), a case with reference to which, however, he might say, that, to the best of his recollection, the argument was not adversely conducted before that learned (a) Ubi supra. 1853. TURNER v. Cox. Judgment. 1853. TURNER V. Cox. Judgment. judge, who probably had not the benefit of such a discussion as would have taken place if the instructions under which the counsel proceeded had been of an adverse nature, which he thought they were not. Their lordships were of opinion that the true construction of the stat. of Geo. 2., taking both branches of the 4th section together, was, that the legal priority of debts was not intended to be interfered with, and that making, declaratory or otherwise, real estate in the West Indies applicable to the payment of debts generally, they meant to do so in such a way as to give the same priority to specialty creditors against real estate that they always had had against the personal estate; and they were of opinion, on considering the whole language of the section, that it was impossible to give it, with propriety or reasonableness, any other construction. Consideration, however, was due to the fact, which their lordships believed was historically true, that no time had ever existed in which, in the Island of Barbadoes, real estate was not assets applicable to the payment of simple contract debts. There could be no doubt, that either on the ground of treating it as a mercantile property, or treating real estate there as being merely subsidiary to trade, on on some other ground, that had been the course of proceeding in that island. Their lordships, therefore, upon all these grounds, whether taken together, or whether they proceeded upon the true construction of the statute alone, came without any doubt to the conclusion, that the real estate was applicable, as well as the personal estate, by law, to the payment of specialty debts in the first instance, in preference to simple contract debts, and that it was not competent in the testator to disappoint the rule of law in that respect. If it had been, in this instance he had clearly done so ; but their lordships were of opinion, that it was beyond his power to do so; that it was as much beyond his power with regard to the real estate, as it was with respect to the personal estate. In that respect, and in that sense, his real estate and his personal estate stood on the same footing. Their lordships were of opinion, therefore, that the appeal was groundless, and must be dismissed with costs. The fact that there were separate cases on the part of the respondents, seemed at first to give rise to some ground for remark. An explanation, however, had been given, which seemed satisfactory; and the point not having been pressed against the respondents on the part of the appellants, their lordships did not think it right to recommend to her Majesty to direct any difference to be made with regard to the costs on that ground. Appeal dismissed with costs. Solicitors: Messrs. Sharpe, Field, & Company, and Boyes, Austen, & Company. 1853. TURNER v. Cox. TRAIL v. BULL. THE facts of this case, so far as they are necessary to explain the point decided, were the following:- Charles Salmon, the testator, was entitled to two leasehold houses, amongst others, in Dorset Street, and East Street, and was entitled to other property. On the 1st March, 1834, he made his will, by which he gave the rent of the two houses to his wife, Elizabeth Salmon, during the time of her life; and after her death, his will was that those houses should be sold, and the proceeds divided amongst his four children. Subject to that bequest, the wife was universal legatee. He appointed his wife and Thomas Bull his executrix and executor, and he died on the 11th October, 1834. Elizabeth, the wife, alone proved the will at that time; and she took possession of the whole of his property, including the above leasehold houses, and received the rents of them; and she kept possession of the rest of the property, except some parts which were sold, up to the time of her death. At the time of the testator's death, he and Thomas Bull, who were related, were in partnership together, carrying on trade as omnibus proprietors, but early in 1836 the accounts of this partnership were wound up and adjusted. After the testator's death, and at the time of her own death, Elizabeth Salmon carried on, either in partnership with Mr. Bull, or alone upon her own account, the business which the testator had carried on in his lifetime, for her own benefit, using the testator's property and effects for that purpose, and residing in his leasehold houses. On the 21st October, 1836, Mrs. Salmon died, and appointed by her will the above-mentioned Thomas Bull, and a Mr. Greaves, her executors. They, however, renounced probate ; and her estate remained unrepresented until December, 1837, when the defendant Bovill, as a creditor of Mrs. Salmon, obtained administration. On the death of Mrs. Salmon the leasehold houses were sold, and three-fourths of the produce of this sale, to which they were entitled, were paid to three of the four children of the testator. The plaintiff was the fourth child; and disputes having arisen as to the character of the indemnity 1853. TRAIL v. BULL. Statement. Argument. to be given to Bull (who had obtained probate to the will of Charles Salmon in November, 1836, after the death of Mrs. Salmon), and upon other points, the other one fourth share was not paid over to her. In June, 1840, the bill was filed against the representatives of Thomas Bull and of Mr. Salmon. The object of the bill was to have it declared that the executrix of Charles Salmon had assented to the legacy to the plaintiff and the other children, and for other purposes, but did not pray a general account of the testator's personal estate. It was not, therefore, a legatees' suit. On the hearing, inquiries were sent to the Master, who made a separate report, and many exceptions were filed to that report. These were argued and disposed of by V. C. Bruce in July, 1844; and his decision being in favour of the plaintiff, an order, on petition, dated the 23rd May, 1845, was made by him, directing the amount of the one fourth part of the produce of the leaseholds to be paid to her. From this decision and this order the defendants appealed to L. C. Cottenham, who, thinking it premature to direct this payment until the whole accounts of the testator's estate were taken in the Master's Office, reversed the decision of the Vice-Chancellor; directed the exceptions to the Master's separate report to stand over until the Master had made his general report; and referred it to the Master to take these accounts. The general report was subsequently made, to which numerous exceptions by both parties were taken; and having been argued before the late ViceChancellor Parker, he, on the 20th July, 1852, made an order thereon, substantially in favour of the plaintiff, from which the present was an appeal. It was agreed that the 20th exception to the general report should be argued separately, and was now disposed of by the Lord Chancellor. The exception was to the effect that the Master should not have allowed in the accounts of the executor the payment of a sum of 401. agreed to be considered as the amount of costs of said Bull, as executor of Charles Salmon, in a suit commenced by Trail and his wife against Bull, but on his death abandoned by them. Mr. C. P. Cooper and Mr. Tripp, in support of the exception, contended that the costs had been incurred in respect of a suit by the husband and wife for the husband's benefit alone, and he relied upon an equivocal admission in Mr. Bull's answer filed in that suit to that effect. They, therefore, argued that the representative of Mr. Bull ought to have obtained these costs from the husband, and that they ought not to be charged against the original testator's general personal estate. Mr. J. Russell and Mr. Boyle for the respondents. The LORD CHANCELLOR, however, without calling on the other side, held that the representative of the original testator was entitled to have these costs allowed to him in his account with the general personal estate, as being clearly a proper pay. ment by him, in respect of the personal estate of the testator; and as a liability which he had incurred, which necessarily must be taken into account before the exact amount of the share of the specific legacy could be ascertained. He said he thought that possibly advantage might at the time have been taken of the frame of the suit as having been instituted by husband and wife, instead of being by the wife by her next friend, and that a demurrer on that ground might have been perhaps sustained; but the practice at that time, in this respect, was not so well settled as it was at present. Exception overruled. Solicitors, J. Trail and J. Wright. 1853. TRAIL v. BULL. Judgment. RE HAKEWILL. LORDS JUSTICES. April 16. ON the 21st of February last, Mrs. Hakewill being desirous A married wo of presenting a petition under the 2 & 3 Vict. c. 54., for access to some of her children and the custody of the others, applied to the Court for leave to present the petition in formâ pauperis, without a next friend, and without payment of the stamp. By her affidavit, filed in support of the application, Mrs. Hakewill stated her inability to obtain a next friend. It appeared that Mrs. Hakewill was living in the same house as her husband, but not cohabiting with him: she had obtained a decree in the Ecclesiastical Court for the restitution of conjugal rights, and the husband then received her into his house, but confined her to her own room and refused to allow her access to her children, of whom there were several, some of them being under seven years of age. Their lordships made the order for her to present her petition without a next friend. Mr. Glasse now, on behalf of the husband, moved to discharge the order. The affidavit upon which the order was made did not state, as it ought to have done, and as was now shown by the affidavit filed in support of the present application, that the lady had a large family connection of her own in wealthy circumstances, to some of whom she might have applied to act as her next friend. [Lord Justice Turner. But if they all refused to act for her?] It ought to have been shown to the Court that they had refused, whether from being under the influence of the husband, or for some such man permitted to present, without the in tervention of a next friend, a petition under c. 54., for access to some, the 2 & 3 Vict. and the cus tody of others, of her children. |