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![handle is hein.slavery/ssactsengr0683 and id is 1 raw text is: DAVIES V. AUSTEN
particular protection, there is always a relator; who in reality sustains and directs
the suit. Mitf. 90.)
Attorney-General. That is upon the principle, that there is no security for the
costs of Defendant.
Lord Chancellor. If I give costs out of the Charity, I ought to give a decree ; which
I cannot do, unless those cases, which I will look at, induce me to alter that opinion.
DAVIES v. AUSTEN. Nov. 15th, 1790.
3 Bro. C. C. 178.-Legacy payable at twenty one with 5 per cent. till payable. Execu-
trix advanced a sum larger than the legacy by discharging disbursements, all paid
bona fide for the infant, though some were improper. Legatee when of age assigned
the legacy. Assignee entitled against executrix to the legacy with 4 per cent. from
the time it was payable,
William Horatio Greene was legatee of £500 payable at twenty one with interest at 5
per cent. till payable. It was not given over in case of his death under 21. Defendant
was executrix, and advanced more than the legacy, viz. £650, before he came of age, by
reimbursing the father in law of the infant, who took charge of him at the Charter
school, but upon his discovering [248] an inclination for the sea put him apprentice
to the Captain of a West India ship with a fee ef £100. After some time he became so
disgusted with that profession, that it became necessary to take him from it. He then
chose to go to India, and £100 more was expended for his passage. It was stated by
the Counsel for Defendant, that they could prove, that in all £650 was advanced for
necessary expences. In 1786 he came of age, and immediately assigned the legacy to
Davies, who brought the bill against the executrix.
Solicitor General [Scott], for Plaintiff. Said, full consideration was given for the
assignment, viz. £625.
Attorney General [Macdonald] and Mr. Sutton, for Defendant. This is the case
of a child destitute in every respect except this small legacy ; the interest of which was
not sufficient to put him out to any advantage. It does not appear, what was the
consideration given; it may be an experiment to get this assignment into his own
hands. It took place immediately after he came of age. Philips v. Paget, 2 Atk. 81,
payment of legacy by executors to minors good, by Lord Hardwicke; who said, he
would not strain the rules of the Court to make executor pay it over again; especially
as he paid it to save a forfeiture of what he took under the will ; it being an express
condition of his taking, that he should discharge the legacies within a limited time.
1 Vern. 255. It was objected, that only the bare interest of the money should have
been expended for maintenance ; but the Lord Keeper thought it right to expend the
whole; as the sum was small ; and probably would be expended more to his advantage
at that time than afterwards; but said, it would be otherwise if a larger sum, as a
legacy of £1000, therefore there are instances, in which the Court has considered the
situation of the parties, and all the circumstances ; and no precise line has been drawn.
Marlow v. Pitfield, 1 P. Will. 558. ]Infant borrowed money and applied it to payment
of debts for necessaries ; he was held liable to pay this in equity, though not at law ;
for the lender of the money stood in the place of the person paid, viz. the creditor for
necessaries ; and shall recover in equity ; as the other might at law;
[249] Solicitor General. In Philips v. Paget Lord Hardwicke changed his opinion
next day.
Lord Chancellor. I agree with Lord Hardwicke in not being inclined to stretch
the rules of the Court ; though I do not understand, that he was doing so there. The
reasons given by the reporter in that case were made for alteration. It is as ill reasoned,
as can be ; what is said about the forfeiture is idle ; it is impossible to suppose, that
Lord Hardwicke could have 'iven such reasons. They do not argue, how it would
have been in this case, if the infant was Plaintiff himself. Every man, who takes an
assignment of a chose in action, gives personal confidence, that there is no lien upon it,
325
1 VES. JUN. 248.](ViewImageLocal?handle=hein.slavery/ssactsengr0683&div=1&collection=&method=preview&ext=.png&size=3)