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![handle is hein.slavery/ssactsengr0353 and id is 1 raw text is: SHEFFIELD V. BALL
21. 10s., as the executrix was a stranger in blood to the legatee, must'be presumed to
be money advanced in part of payment of the legacy; and as to interest upon such
small legacies as this, upon which no interest could be supposed to have been made,
the Court never allowed interest, especially to a stranger, de minimis non curat lex.
[291] SHEFFIELD against BALL AND OTHERS, Owners of the Ship Scipio. High
Court of Delegates, (a) June 28th, 1756.-Security given in the Court of Admiralty
cannot be made available in the Court of Appeal. That Court requires fresh
security and a new proxy.
Appeal from the Admiralty.
Sheffield, a mariner, sued for wages in the Admiralty, 24th February, 1756. The
Judge pronounced for the wages, but did not give costs. Sheffield appealed to the
Delegates from not decreeing him costs. The question now was, whether the mariner
should give fresh security to prosecute his appeal, &c. in the Delegates, and whether
his proctor should exhibit a new proxy, or whether the security and proxy given in
the Admiralty were sufficient.
Judgment-Sir George Lee. We were all clear that the proxy in the Admiralty
was expired, and that if the cause should be retained in the Delegates, that the security
given in the Admiralty cannot be made use of ; and that by the practice fresh security
and a new proxy are always given upon an appeal, and so is Clark's Prax. Adm. tit.
57 and 59. Dig. lib. 46, tit. 7, 1. 20.(b)
(292] WRIGHT against RUTHERFORD AND OTHERS. Prerogative Court, 3d Session,
Trinity Term, June 30th, 1756.-A next of kin who has declared that she will
not oppose a will, may retract that declaration if she has not acted upon it.
Dr. Hay for Jane Wright. John Price, Esq. died a bachelor 23d February, 1756;
made a will 7th March, 1734, written by himself; devised all his plantations in
Barbadoes and his negroes to his sister Jane Wright, with remainders, and made her
sole executrix and residuary legatee; made another will 13th February, 1743, in which
he revokes all former wills, gives all his plantations, and all his real and personal
estate to trustees, for the sole use of his sister Jane, exclusive of her husband, since
deceased, and appointed John Brinsden and John Dighton executors, who have
renounced. Caveats entered by Mr. Smith for deceased's half-sister Martha Rutherford,
and by Mr. Farrer for Charlotte Tyrrell, widow, Jane's daughter by Robert Wright,
who died in testator's lifetime. Smith, for Rutherford, alleged her to be sister by the
half-blood to deceased; Stevens for Wright confessed Smith's interest; Smith declared
on the 8th April that his client Rutherford would not oppose the will of February,
1743, or do any thing further in the cause; Stevens prayed administration to be
granted to Wright with the said last will; Farrer, for Tyrrell, declared he opposed it;
Stevens alleged she had no interest. First Session of this Trinity term, the Court
determined that Tyrrell had no interest (p. 266, ante). Smith:that day again [293]
appeared for Rutherford, and declared she would oppose the last will. The question
is, 1st, whether she is not now precluded from opposing the will, by the declaration
her proctor made on 8th April, that she would not oppose it; she cannot be allowed
to vary as she pleases. Prerog. 15th December, 1752, Thomas against Davis, Thomas
had neglected to propound his interest; the Court would not afterwards allow him to
propound it. (N.B.-In that case Thomas was assigned to propound his interest,
which he neglected to do, and administration cum testamento was thereupon granted
to the next of kin, and afterwards he called the next of kin to bring in the administra-
tion, and would then have propounded his interest, but the Court thought he was too
late, it not being a res integra.) 2dly, she has no interest to oppose the last will, for
nothing is given to her by the first will, and that first will must bar her interest as
(a) Judges present-Right Honourable Sir George Lee, Drs. Ducarell and Bettes-
worth.
(b) Cum apud Sempronium judicem datus reus defenderetur, stipulatione cautum
est, ut quod Sempronius judex judicasset, prnstaretur: 4 cujus sententit petitor
appellavit: et cum apud competentem appellationi judicem res ageretur, defensore con-
demnato, quesitum est, an stipulatio commissa esset? Respondit, secundum ea, qum
proponerentur, non esse jure commissam; Claudius, ideb in stipulatione adjicitur,
Quive in ejus locum substitueretur.
2 LEE, 291.](ViewImageLocal?handle=hein.slavery/ssactsengr0353&div=1&collection=&method=preview&ext=.png&size=3)