entitle the defendants to file it. "The declaration was filed on the 25th of June, in assumpsit. The plea was filed on the 27th, and the affidavit accompanying it was sworn on the 25th of June, at Liverpool, containing the usual averment, as to the promises in the declaration having been made, if at all, by the defendants and other perSons. But when the affidavit was made, it was physically impossible for the defendants to know what were the promises in the declaration. They make an affidavit, without seeing the declaration, which from the nature of it implies that the declaration has been seen and taken out of the office. It was therefore a perfect nullity, for if such an affidavit were admitted in support of a plea in abatement it would be allowing the defendants to trifle with the solemnity of an oath." THE COURT, however, held, that the plea could not be considered as a nullity, for if the affidavit were not true, the defendants might be indicted for perjury, and as there are but four days time to plead in abatement, they might be excused for swearing, from a knowledge of the real nature of the demand, and of the nature of the declaration, which they might have been informed of by the attorney before the declaration was actually filed, especially as they had sworn truly. RULE ABSOLUTE. 1803. LANG versus COMBER. The KING versus THORNTON.-Nov. 14. versus THORNTON. INFORMATION, in the nature of a quo warranto, The Kine against the defendant, for exercising the office of senior bailiff of the town of East Retford, in the county of Nottingham. Plea, demurrer, and joinder thereupon. The question turned upon the construction of the charter of the 25th of Nov. 5 Jac. 1. Under which the corporation was to consist of two burgesses, to be called senior and junior bailiffs, and twelve burgesses to be called aldermen. W. T. 1803. The KING versus THORNTON. and N. W. were then nominated the first senior and junior bailiffs, to continue in their offices until the feast of St. Michael, then next ensuing, and from thence until two other of the burgesses, should, in due manner be elected, perfected, and sworn, according to the charter. The bailiffs and burgesses were to chuse. twelve aldermen, of the more honest burgesses, to be aldermen for life, but liable to be amoved, to be of the common council of the town and assisting to the burgesscs. The future bailiff's to be elected by the bailiffs and aldermen, or the major part of them, for the time being, on the first Monday in August; one as senior bailiff, out of the aldermen to be sworn in, before the last bailiffs, his predecessors, and to execute the office for one year, from thence, until one other of the aldermen to that office, in due manner, should be elected, perfected, and sworn. The junior bailiff to be elected out of the burgesses, in the same manner, mutatis mutandis. There was a provision for swearing their successors, in case either should die. At the election of the defendant (by authority of a writ of mandamus under the stat. after a judgment in quo warranto, against several of the preceding bailiffs, and after an election, omitted to be had on the charter day, and the day following). D.W. a senior bailiff, duly elected, &c. in 1797, and T. B. a junior bailiff, duly elected, &c. in 1796, presided and administered the oath to him, and his election was at a meeting of these two bailiffs and sir aldermen. The objections stated in the demurrer book, upon which the question arose, were two: namely, that this was not a good corporate meeting; 2dly, That the proper officers were not presiding at it. After argument, in Trinity term, by DAMPIER, for the crown, and READER, for the defendant. Lord ELLEN BOROUGH, C. J. delivered the opinion of the Court, this day, to this effect. "That after the first year from the charter, there could only be twelve aldermen, one of whom would be senior bailiff, although the first senior bailiff was not an alderman, and that six alder 1803. versns THORNTON men, together with such senior bailiff, constituted a majority of the corporate body of aldermen, and consequently with THE KING the junior bailiff, were together a competent meeting in that respect for the election. That as to the second point, the sufficiency of the presiding officers, the two bailiffs held distinct offices. That by the charter each bailiff continned till his successor was duly elected, perfected, and sworn. That, by the ouster of the intermediate bailiff's, D. W. and T. B., were the last legal bailiffs, and that, notwithstanding their election at different times, they were competent to preside together. And therefore that such election under the mandamus was valid. JUDGMENT FOR THE DEFENDANT. In order to fulfil our promise of comprizing the cases of this term in the 13th and 14th Numbers, we have abridged the above case, after having prepared it for insertion at full length. We have also notes of three others which we are obliged to omit, it being impossible to abridge them sufficiently for the purpose of insertion. We shall therefore only add, that in Lord Nelson v. Tucker, in error from the court of Common Pleas*, this court reversed the judgment of the court below, and established as a clear principle, that under the 4th article of the king's proclamation, 1797, the commanding flag officer's 1-8th share of prizes. belongs to the effective, present, acting flag officer on the station, and not to the superior officer, nominally on the station, returning home, and leaving the ships behind to act under another command; notwithstanding the prizes in question were taken by an officer dispatched from the fleet by orders of the admiral returning home and before that officer could receive orders from the admiral left behind, and while the former continued to retain the title of admiral on that station, with the pay, ' table money, &c. Lord Keith v. Pringle, turned upon the same point. Of the case of Doc dem. Reay v. Huntingdon, we may find an opportunity hereafter to insert a short report. * 3 Bos. and Pull. 257. 1803. DEANE versus IN THE COURT OF CHANCERY, IN MICHAELMAS TERM. DEANE versus TEST. A TESTATOR, after devising 40001. stock in the four pe cents. to B. for life, and after her death to his, the testator's sister children, equally to be divided, bequeaths to the same childre an additional sum of 2000l. more, to be paid out of his 41.p cent. consolidated Bank aunuities; and in case of the death of an of them before attaining their respective ages of twenty-one year then to be equally divided among the survivors, share and sha alike:" Held, this is a devise of 2000l. money and not stack. THIS bill was filed, in order to determine a question Whether a legacy of 20001. was a legacy of stock or of so much in money? The bill stated, that the tes tator, John Hoskins, died on the 14th of October, 179 having first duly made and executed his will, by which b devised to his sister Harriet Ann Best, during her natura life, the interest of 40001. stock, standing in his name, i the four per cent. annuities; and, after her death, thes to the children of his sister Lucy Deane, to be divide equally among them, share and share alike; and in cas of the death of any of them, before they respectivel attained the age of twenty-one years, then to be divide equally among the survivors, share and share alike. Th will also contained the following clause, upon which th present question was raised. "I likewise give and devis "unto my sister Deane's children, an additional sum o "20001. more, which is to be paid out of my four pe "cent. consolidated Bank annuities; and in case of th "death of any of them, before attaining their respectiv "ages of twenty-one years, then to be equally divide ་ among the survivors, share and share alike." And the testator devised the residue of his estate and effects, afte 5 payment of his debts and legacies, to his cousin, the defendant Thomas Test. The testator died, leaving his sister Harriet Ann Best, and his sister Mrs. Deane, and her children surviving him. Mr. ALEXANDER and Mr. TROWER, for the plaintiffs. "This is simply a question of intention, Whether the testator, by his will, has left a legacy of 20001. in money, or 20001. in stock? This is a legacy of 2000l. to be paid out of 40001. four per cents.; and the plaintiffs contend, it is a money legacy. He gives it as an additional sum of 20001. more; but the words an additional sum do not imply, that it must be of the same species with the prior bequest. Money legacies merely bear interest twelve months after the testator's death; but there is nothing to postpone the interest in this will. Here the interest is vested immediately, and only subject to be divested by the death of any of the legatees before they attain the age of twentyone. This case is very similar to that of Kirby and Pofter, in 4th Vezey. If the testator had intended his legacy to be paid in stock, he would have used the same words as he does in the former part of his will; but he says, "I give them 20001. more ;" and the only doubt which can be raised is on the word more, which must mean in addition, and cannot be considered with any reference to his prior bequest of stock." Mr. ROMILLY and Mr. WILSON, for the defendant, the residuary legatee. "The only question in this case is, Whether the plaintiffs are intitled to stock or to money? This has no resemblance to a question whether it is a pecuniary or specific legacy. It must be specific. Every legacy of money to be paid out of stock must be specific. According to the construction put upon this will by the plaintiffs, the testator has directed his executor to purchase stock for the purpose of paying money. This will most nearly resembles that in the case of Ashburner v. Macguire, of which there is a report in 2 Brown, 108. In every pecuniary legacy in this will, excepting the one which the plaintiffs are intitled to, the testator uses the words' lawful money of Great Britain;' so that he always 1803. DEANE versus TEST. |
