1819.

KIRKBANK and others

v.

HUDSON and others.

think the plaintiff has succeeded in this suit*. His Lordship then pronounced the following

DECREE.

Declare that the bequests in the will of Richard Dickenson, the testator in the pleadings named, both as to the money of the said testator, out at interest on mortgage, as also of the residue of his personal estate to charitable uses, as in the will mentioned, are void under the statute; and that such money on mortgage, and residue belong to the next of kin of the testator-with the usual directions

costs up to the hearing to be paid by the executors out of the assets-subsequent costs, and further directions, reserved.

His Lordship afterwards added, that if he were inclined to criticise the word "recommend," it might be carried to a great extent, amounting to a command, unless where the party were an entire stranger: and that it was much the safest course to abide by the plain words.

EASTER TERM, 59 GEO.IH.

1819.

IN THE EXCHEQUER CHAMBER.

Corum RICHARDS, LORD CHIEF BARON.

19:13.20 201 und Las1024/19cm 381.

BOWMAKER V. MOORE, SHIRREFF, and TRElfs.

2 Theem 6.42.

Monday, 10th May. 21st & 23d

April.

defendant in

3M 4G 263 13 ve 922 m THIS cause was heard finally on the merits be- Where the fore the Lord Chief Baron at the last Sittings after Term.

an action of replevin entered into an agreement with the plaintiff to refer to arbitra

action of re

standing for

assizes, and

Martin and Tinney, for the plaintiff, contend- tion a prior ed generally, that the defendant Moore, by hav- plevin between ing entered into the arrangement with Shirreff entered and noticed particularly in the judgment hereafter, trial at the had discharged the plaintiff, Shirreff's surety also other matin the replevin bond, by placing him in a different ters in dispute situation from what he would otherwise have them, stood in if the proceedings had not been so stayed. plevin suit:The arguments and authorities relied on were in substance the same as on the former occasion, when

between

the second re

and that all

proceedings

should in the

mean time be stayed till the

award should

be made, and

the question was discussed on the original motion (a), on the decision of which they now mainly which was sti relied; and they cited, as an additional case on the

pulated to be

published by a Be-time, but af

of

future certain

terwards further enlarged

part of the plaintiff, The Bank of Ireland v. resford (b). They urged, that the ground the decision on the motion, in the case of Moore and defendant,

(a) Ante, vol. iii. p. 214. (b) 6 Dow. Rep. D. P. 233.

privity of the surety in the replevin bond,

whereby, in point of fact, the suit was delayed, and the surety placed in a different situation by the delay which might have been prejudical to him, whether it actually turn out to have been so or not-held to affect the conscience of the defendant in equity; and therefore the Court granted a perpetual injunction to restrain him from proceeding against the surety, on an assignment of the replevin bond, obtained upon a return of eloign

ment..

1819.

v. Bowmaker (a) in the Common Pleas, and off the demurrer, was not founded in fact, as the surety had sustained an injury by the delay; and SHIRREFF, it had not occurred to the Court of Common Pleas

BOWMAKER

v.

MOORE,

and

TRELFS. that a bill would lie in equity to compel the landlord to proceed with the suit under the circumstances of this case.

Jervis and Roupell for the defendant Moore, insisted, as the principal point in their case, that the plaintiff was not placed in a worse situation by any part of the arrangement which had taken place between the parties, because they contended that the defendant Moore could not, under the circumstances, have obtained judgment in the action before Michaelmas Term, when he became entitled to judgment by virtue of the cognovit: and that all that had been done must necessarily have operated in favour of the plaintiff as surety in the bond, and could not in any respect prejudice him.

The Lord Chief Baron having stated that he should consider the case before he delivered judgment, observed, that he was of opinion that the determination of this case on the former motion was right; and that there were several propositions in the case in the Common Pleas, as reported, to which he could not assent; and particularly that which assumed it to be necessary that the surety should be damnified by the change effected in his situation, before he could be considered to be dis

(a) 2 Marsh. 81 and 392, and 6 Taunt. 379, S. C.

charged,

1

charged; for that it would be quite sufficient to discharge him, that he might possibly be injured by the change.

Cur. adv. vult.

RICHARDS, Lord Chief Baron, now delivered judgment

There have been already two decisions on the points in this case in different Courts, and certainly the judgment of the Court of Common Pleas (a) is quite at variance with that of this Court (b). It is very extraordinary that the determination in the Common Pleas was not cited or adverted to when the matter was argued on the original motion for this injunction, which the Court of Exchequer thought proper to grant.

[Here his Lordship stated the case very fully.]

The question now before us is really therefore in effect, whether under the circumstances of this case (which are certainly very peculiar, and such as I have never met with before) the Court of Common Pleas have determined rightly in deciding that at the time when the action was brought in that Court the present defendant, the plaintiff at law, had a right so to proceed against the complainant in this suit.

(a) Moore v. Bowmaker, 2d Marshall, 81 and 392, and 6 Taunt. 379.

(b) Ante, vol. iii. p. 214.

VOL. VII.

Now

1819.

BOWMAKER

v.

MOORE, SHIRREFF, and TRELFS.

Now it is most material to observe, that even at common law, it was always the duty of the party who sued the replevin to prosecute his suit, and the sheriff ought to take pledges of prosecution (a). At length, by the statute of Westminster 2. (13 Edw. I. c. 2. s. 3.) it was provided, that sheriff's should, from thenceforth, not only receive of the plaintiffs pledges for the pursuing of the suit, but also for return of the beasts if return should be awarded. Then by the 11th of Geo. II. c. 19. s. 23. sheriffs were empowered and required, in every replevin of a distress for rent, to take in their own names from the plaintiff, and two responsible persons as sureties, a bond, in double the value of the goods distrained, conditioned for prosecuting the suit with effect, and without delay, and for duly returning the goods and chattels distrained in case a return should be awarded, before any deliverance be made of the distress.

The suit so to be prosecuted, as we all well know, is carried on in the first stages in the Sheriff's Court, and may be determined in the inferior court; but that is now so very seldom done, if ever, in practice, that I cannot attach any consideration of importance to the fact of the cause having been removed by the defendant, for it being almost a mere formality and of course, so to remove such actions by the writ of accedas ad curiam, it can have no effect in determining this case. The

(a) F. N. B. 68.

cause