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6. It was moved (on the authority of the above cafe of Noaks v. Watts) that the plaintiff, who was a pauper, might be restrained from going on to trial, till he paid cofts for former notices. But the court thought that cafe did not put it on a right foot, and that it was abfurd to make any rule about cofts whilft the admiffion ftood; and therefore ordered plaintiff to fhew caufe why he fhould not be difpaupered. And on affidavit of fervice made it abfolute. Taylor v. Lowe, 2 Stra. 983.

7. After a nonfuit in trefpafs the court will ftay the proceedings in a second action between the fame parties for the fame caufe until the cofts of the nonfuit are paid, notwithstanding the plaintiff be a prifoner at the time of bringing the fecond action, and fue in forma pauperis. Wefton v. Withers, 2 Term Rep. 511.

8. The plaintiff fued as a pauper, and was nonfuited; after which he brought a fecond action, and recovered. And it was moved on behalf of the defendant, that the costs in the first action might be deducted out of the recovery in the second, but it was refufed. Butler v. Innes, 2 Stra. 890.

9. A plaintiff pauper is not entitled to iffue- money; and if he fign judgment because the defendant does not pay it, the court will fet the judgment afide. 5 Term Rep. 509.

By a late rule of court

no judgment shall be figned for non-payment of iffue-money; but the fame fhall remain to be taxed as part of the cofts in the cause. 6 Term Rep. 477. R. M. 36 Geo. 3.—See Rex v. Clarke, 3 Burr. 1308. and Rex v. Pearfon, 2 Burr 1939.

Pawn.

(A) What. As to the Interest of Pawnee or Pawnor; 16Vin. 263. and how confidered.

1, WHERE money is generally lent upon a pledge it will not
deprive the lender of his remedy against the person;
but to do that there must be a fpecial agreement to ftand to the
pledge only. The South Sea Company v. Duncomb. Trial at bar
in B. R. 2 Stra. 919.
2 Barnard. 48. S. C.

2. The difference between bailing and pledging of goods is, that a pawnee hath a special property, and a bailee the cuftody only. Hartop v. Hoare, 3 Atk. 46.

3. The difpofition of a pawn is quite variant from a fale, for a vendee can transfer the thing to any other, and trade is thereby promoted; but it is quite otherwife in the cafe of pawns, for they tend to stop the change of the property of the things that are pledged; and that is a fufficient difference to make pawning not

fall

fall within the custom that a fale in market overt in an open shop in London binds the property of a stranger. Id. ib.

4. Admiral Stewart by will gave his plate to trustees for the ufe of his wife durante viduitate, requiring her to fign an inventory, which she did. She afterwards pawned them with the defendant and died. In trover by the plaintiffs, who claimed under the remainder-man, a fpecial cafe was referved. But the counfel for the defendant gave up the point as clear. Hoare & al. v. Parker, 2 Term Rep. 376.

5. The plaintiff, as affignee of the effects of Sir S. Evance, a bankrupt, brings his bill against the company to oblige them to fuffer him to transfer, the ftock of Sir S. E. The company in fift that Sir S. E. was their banker, and greatly indebted to them, and that upon the claufe in the bankrupts' act, which directs the commiffioners to ftate the accounts between mutual dealers, they shall be allowed to hold the stock, and account only for the balance, if any fhall appear against them. And the Chancellor, affiftante the reporter Raymond et Price, were of this opinion, and decreed accordingly. And in Me- Stra. 645.

Note. But

puts a quære.

I

liorucchi et Royal Exchange Assurance Company, 1 Eq. Ca. Abr. 8. pl. 8. it is faid that there was in this cafe an exp eís by-law to fubject the stock of each member to fatisfy the debts they should owe to the company. And it was then held that a company has no right to hold the stock of a proprietor for money lent to him.

6. Trover by the captain of a fhip against the owner for a parcel of elephants' teeth. The defendant had entered them, together with his own, at the custom-house, and paid the duty. It was infifted, that the plaintiff fhould fhew a tender of the duty, otherwife the goods were in the nature of a pledge. But Eyre C. J. faid, that would not justify defendant in keeping them, for he had his action for the money, and if he would fhew what the duty came to, it might be deducted from the damages; which was done. Stone v. Lingwood, at Guildhall, Mich. 12 G. Stra. 651.

Stone v.

16Vin. 264 (B) Redemption. At what Time; and on what

Terms.

A
Bill was brought by an affignee under a commiffion of bank
ruptcy for the re-delivery of jewels and plate pledged by the
bankrupt to the defendant, who had also given a promiffory note
for the delivery over of thofe goods to the affignee, or the value
of them, upon the affignee's paying him all that was due. By
way of defence the ftatute of limitations was infifted upon, and
alfo that this being a pledge the remedy was to bring trover, and
not by a bill in equity. But Lord Hardwicke C. held, that the
ftatute was no bar to this demand, for no time being given for
redemption, the bankrupt had during life to redeem; that there
were cafes in which there might be a right to come into equity to
redeem, and that there was a strong reafon for it here; the plain-
tiff being an abfolute ftranger to what was due, had a right to

come

come into equity to know it, in order to make a tender, which he cannot do without tendering the precife fum. Kemp v. Westbrook, Vef. 278.

(D) Redemption of Deeds, &c. pawned.

1.C. Having affigned a veffel (in confideration of a debt due) together with the policy of infurance upon it, to the plaintiff's teftator, covenanted that he would keep up the infurance. The veffel being at fea, C. made the policy accordingly; but the broker, being his creditor, would not part with it, and C. confented that it should remain with him as a pledge for his debt. The affignees of C. (who became a bankrupt), having fatisfied the broker, infifted that the broker, being the agent of C., and having the policy in his custody, it was a leaving by the teftator in the poffeffion of the bankrupt within 21 Jac. 1. c. 19., and refused to deliver it up. But Lord Thurlow C. decreed for the plaintiff. Falkner, Executor of Crowder, v. Cafe et al. 1 Bro. Chan. Rep. 125.

2. A leafe having been pledged by a perfon (who afterwards became a bankrupt) to the plaintiff, as a fecurity for a fum of money lent to the bankrupt, the pledgee brought his bill for a fale of the leafehold eftate. The Lords Commiffioners decreed ac- In a note by cordingly; for this is not within the ftatute of frauds, f. 4. For the reporter, the contract is executed, and the court has nothing to do but fup- faid to have ply the legal formalities. Ruffel v. Russel, 1 Bro. Chan. Rep. 269. come on

this cafe is

again, coram

Lord Thurlow C. who ordered the leafe to be fold.

3. In Featherstone v. Fenwick, May 1784, and Harford v. Carpenter, 17 and 18 April 1785, Lord Thurlow C. held, that the depofit of deeds entitled the holder to have his lien effectuated by a mortgage, although there was no special agreement to affign; the depofit affording a prefumption that fuch was the intent. I Bro. Chan. Rep. ib. notis.

(E) Redemption. Where Goods are pawned by 15Vin.265. one that is not Owner.

T

HOUGH a factor has power to fell, and thereby bind his principal, yet he cannot affect the property of the goods by pledging them as a fecurity for his own debt, though there is the formality of a bill of parcels and a receipt. Per Lee C. J. 2 Stra. 1178.

Payment.

15Vin. 180. (P) Payment. Devife or Settlement for Payment of Debts. How. Pari paffu.

1.

A Will begins, "As to all my worldly eftate," my debts being first paid, I give, &c.; the real estate is liable to the debts, nothing being deviled till the debts are paid. 3P. Wms. 96. Hil. 1730. Harris v. Ingledew.

2. One by will charges all his worldly eftate with debts, and dies feifed of freehold and copyhold eftates, which he particularly difpofes of by the will; the copyhold, though not furrendered to the ufe of the will, thall yet be applied to the payment of the debts. Ibid.

3. If a man charges all his lands with the payment of his debts, and devises part to A. and other part to B., &c.; the creditors cannot be paid out of the lands till the Mafter has certified what the proportion is, which each devifee is to contribute: but if the Mafter certifies that the debts will exhaust the whole real estate, then the creditors may proceed against any orre devifee for the whole. Ibid.

4. Money arifing from the fale of lands devised to be fold for the payment of debts, is legal affets in the hands of the executor. Atk. 420. 1778. Blatch v. Wilder.

5. Before the marriage of Edward Joye with Mary Broughton, it was agreed that 300l., till it could be laid out in lands,fhould be fettled in truft for Edward Joye for life, for Mary Broughton for life, and, in default of iffue, to the ufe of fuch perfon, and for fuch eftate, as the should by any deed direct or appoint, and for default of fuch appointment, to her right heirs for ever. Mary, by deed-poll appoints the 300l. to be paid to her husband, to be employed by him to fuch charitable uses, or other purposes, as he fhould think fit. Edward devifes this 300l. to the defendants, in pursuance of his wife's directions. The 300 confidered as part of Edward's aflets, and applied in payment of his debts. 1 Atk. 465. Nov. 1739. Hinton v. Joye.

I

6. The marshalling of affets by letting fimple contract creditors come in the place of a fpecialty creditor, can only be where the fpecialty creditor had a remedy against the real and perfonal eftate of the debtor deceafed, whofe affets are in queftian. 1 Vef. 312. Nov. 1749. Lacam v. Mertins.

7. The court will go as far as it can to attain the payment of debts: real estate, where charged, is affected by equitable, as well as by other debts. 1 Vef. 483 & 495. June 1750. Powis

Aftley v.

8. Devife

8. Devife that all debts fhould be first paid and satisfied: cuftomary lands furrendered in trust for several, and for the use of fuch as the teftator fhould appoint, and devifed in diftinct parts from the rest, are fubject to debts; the firft difpofition running over all. 2 Vef. 271. 1754. Earl of Godolphin v. Penrick.

9. The moft liberal conftruction of wills is to be made for creditors. Ibid 272.

10. Additional legacy to A. charged on the real and perfonal eftate, the other legacies not charged on the real estate: If A. exhaufts the perfonal eftate, the other legatees fhall have fatisfaction pro tanto out of the real. Ambl. 127. Hanby v. Roberts.

11. Equity of redemption of a leafehold eftate held to be equi table aflets. Ambl. 308. 1756. Hartwell v. Chitters.

12. The question, whether a reverfion after several eftates. tail, falling in after the death of the reverfioner, be aflets to pay his debts, agitated, but not determined. 1 Bro. Ch. Ca. 240. March 1783. See Frederick v Aynfcomb, 1 Atk. 392.

13. An equity of redemption may be devifed, granted, or entailed, and fuch entail may be barred by fine and recovery, and the perfon entitled to it is the owner of the land, and a mortgage in fee is confidered as perfonal affets. 1 Atk. 605. Hil. 1737. Caf borne v. Scarfe.

14. Admiffion of affets by the executor to one legatee, is an admission to all. 2 Atk. 3. Eaft. 1737. Cook v. Martyn.

15. Where an executor is also a trustee for payment of debts, the affets fhall be legal. 2 Atk. 5o. July, 1740. Lewin v. Okeley.

16. Celui que truft of a real estate made a mortgage upon it in fee, and deviled the equity of redemption to his fon and his heirs, fubject to the payment of his debts, and died indebted by bond, and fimple contract; as this was a mortgage of the whole inheritance, and nothing remaining in the mortgagor, the bond-creditor can have no preference, but must be paid pari pafu with the other creditors. 2 Atk. 290. April 1742. Plunket v. Penfon.

17. When a plaintiff, efpecially a creditor, mult come into equity for relief, the court will do equal juftice to all creditors, without any diftinction as to priority. Ibid.

18. After affets are difcovered in equity, the plaintiff shall not be fent to law, but fhall be decreed a fatisfaction. 2 Aik. 363. June, 1742. Yates v. Hambly.

19. H. being feifed in fee of an estate, borrowed money in 1724, gave a bond for it, and a mortgage in 1728. He deviled the mortgaged estate and a freehold for three lives to his wife, and appointed her fole executrix. The question was, if the perfonal eftate were not fufficient to pay the mortgage, whether the eftate defcended on the plaintiff fhould make up that deficiency, fo that the estate devised to the wife might not be affected whilft there were real affets. Court of opinion that the wife had a right to have the devised eftate exonerated out of the real eftates defcended. 2 Atk. 430. June 1744. Galton v. Hancock.

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