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![handle is hein.slavery/ssactsengr0684 and id is 1 raw text is: ANGERSTEIN V. CLARKE
It is not possible to give the executrix more than the interest up to 1786, when he came
of age. The case, you mentioned last, was in my contemplation; you may recover
against an infant for necessaries ; but there is this difference; that where a stranger
advances money, he will have a little more consideration than a trustee, charged with
the care of paying an infant, when of age, a sum of money, would be allowed. Defend-
ant must pay £500 with interest at 4 per cent. from the time he came of age. (Lee v.
Brown. 4 Ves. 362. Walker v. Wetherell, 6 Ves. 473. Ex parte M'Key, 1 Ball & Beat.
405. As to payments made to the father, see Cooper v. Thornton, 3 Bro. C. C. 60, 186,
and Dayley v. Tolferry, 1 P. Will. 285 ; better reported 1 Eq. Ca. Ab. 300.)
Solicitor General. Five per cent. was given by the will, and it is a solvent estate.
Plaintiff must have costs.
Lord Chancellor. The 5 per cent. was during the infancy, and you have availed
yourself of that argument before. You cannot raise a purchaser higher than the
infant himself. A purchaser of a chose in action must always abide by the case of the
person, from whom he buys ; that I take to be an universal rule. It is against a solvent
estate in one respect; but it is against executors, who have spent more about him than
the legacy. It would be too bard to give costs. But many of the disbursements were
very wrong ; for instance £100 to the Master of a West India ship ; it is putting him
in the character of a slave, and giving £100 for making him sQ.
[250] ANGERSTEIN V. CLARKE. Nov. 17th, 1790.
[S. C. Dick. 738; 3 Swan. 147 (n.).]
On amended bill it is not necessary to serve new subpoenas on the original Defendants.
Question, whether upon an amended bill it is necessary to serve new subpcenas
upon the original Defendants.
Mr. Mansfield said, it was a point, upon which much doubt was entertained, but
he had no case for it.
Lord Chancellor asked Mr. Dickens, the Register, whether in the common case of
amended bill upon exceptions new subpcenas are served. The Register answered
in the negative; and produccd two manuscript cases to the contrary; one before
Mr. Baron Clarke in 1744; where this came to be in question; and the Court
ordered the precedents to be searched ; and upon them determined, that it was not
necessary. The other case was, where a bill was amended upon exceptions allowed,
and amendments and exceptions to be answered together ; in which case Lord Hard-
wicke considered the amendments as put in issue without more, and decreed upon the
amended bill accordingly; and no new subpcena was served. (Note: In Hinde's
Chan. Prac. 22, it is said, if a further answer be required, then a subpoena to appear
and answer must be served.)
Lord Chancellor [Thurlow]. The first case was adjudged upon an inquiry into
the practice; and if it had not been produced, I should not have thought, the Court
would have made it a subject of inquiry. It seems to be a fair inference, that upon a
general order to answer the Court considers them as appearing. The parties may
have gone into evidence (Note : After witnesses examined no amendment permitted.
Barnard. 223; Mitf. 53) ; and, if Plaintiffs amend their bill upon the idea that they
are out of Court, by the amendments they cut the Defendants out of all the defence
made before; which I should not be inclined to do. The case of an amended bill
upon exceptions, and amendments and exceptions to be answered together, happens
a dozen times in a term. But an amended bill is taken as a new bill for certain
purposes. (See Newl. Practice, 197. Skeffinglon v. ---, 4 Ves. 66. Hail v. Camp,
Bagshaw v. Batson, 1 Dick. 108, 113. In Tarleton v. Dyer, 10 Ves. 442, the general
question was raised vt the bar : but the subpcena was ordered on the special circum-
stances. Whether death of Defendant, after subpoena to hear judgment, the suit
being revived, a new subpana is necessary, see Byne v. Potter, 5 Ves. 305.)
1 VES. JUN. 250.](ViewImageLocal?handle=hein.slavery/ssactsengr0684&div=1&collection=&method=preview&ext=.png&size=3)