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![handle is hein.slavery/ssactsengr0833 and id is 1 raw text is: 8 MADD. 217. THORPE V. MACAULEY 877
consequence of that accident, and not animus adimendi the legacy, and that within the
principle of Hambling v. Lyster, and the other cases of that class, the legacy is not
therefore adeemed. As a general principle it is unquestionably to be stated that if the
subject of a gift do not remain in specie at the death of the testator, the gift is gone.
[217] But it must be admitted that, in Hambling v. Lyster, and in some other cases,
there is authority for stating that if there be a legacy of a debt, and that debt be
afterwards received by the testator, that the legacy shall still carry the amount of
the debt from the general assets of the testator, unless the testator appears to have
called in the debt, with the intention to adeem the legacy. Some of those cases are,
however, to be resolved by a different principle; that they were not considered to be
specific legacies, but were, what are called in the civil law, demonstrative legacies;
that is, general pecuniary legacies, with a particular security. In the case of
Ashburner v. Macquire (Ambl. 401), Lord Thurlow entered very fully into the
consideration of all the cases which are to be found upon this subject ; and in that
case, and still more unequivocally, in the case of Stanley v. Potter, in Mr. Cox's Reports
(2 Cox, 180), he altogether repudiated the principle of the animus adimendi, as tending
to inexplicable confusion; and held that when it was once determined that the legacy
of a debt was specific, and not demonstrative, that the only safe and clear way was
to adhere to the plain rule-that there is an end of a specific gift, if the specific thing
do not exist at the testator's death. It may be questionable from the cases of
Coleman v. Coleman (2 Ves. jun. 639), and Roberts v. Pocock (4 Ves. 150), whether Lord
Rosslyn fully adopted the principle of Lord Thurlow; but the cases of Fryer v.
Monris (9 Ves. 360), and Le Grice v. Finch (3 Meriv. 51), before Sir William Grant,
appear to me to manifest, by necessary inference, that that learned Judge considered
the law to be so settled. Taking it, therefore, as an established principle, that in the
case of a specific gift the Court is only to inquire [218] whether the specific thing
remains at the death of the testator; and cannot enter into the consideration, whether
it has or not ceased to exist, by an intention to adeem on the part of the testator, it
necessarily follows that, in the present case, I am bound to declare that the legacy of
the policies of assurance, being a specific gift, has altogether failed by the non-
existence of the policies at the death of the testator.
[218] THORPE V. MACA1JLEY. Nov. 2, 19, 1820.
(See Bowden v. Allen, 1870, 39 L. J. C. P. 217 ; Hill v. Campbell, 1875,
L. R. 10 C. P. 247.]
On a bill for a discovery, and a commission abroad in aid of a defence to an action
for a libel ; a demurrer was overruled, with liberty to amend the same, the Plaintiff
being entitled to a commission abroad, though not to a discovery from the
Defendant.
The bill, in substance, stated that in 1791 a company was formed for carrying on
trade on the western coast of Africa, entitled The Sierra Leone Company, and was
incorporated by an Act of Parliament, which passed in the 31st year of the reign of
His late Majesty Gee. III. That the said company formed a settlement or colony at
Sierra Leone, on the western coast of Africa; that the principal object in forming
the said company, and establishing the said settlement or colony, was the suppression
of the slave trade, and the introduction of commerce and civilization amongst the
inhabitants of the western coast of Africa; that the Defendant was for some years
employed in the service of Mr. M'Clond, in the island of Jamaica, to superintend a
plantation of the said Mr. M'Clond, called Hyde Plantation, in that island; and that
about the year 1791 the Defendant was dismissed from or left the service of the said
Mr. M'Clond, and the same year returned to England, when the said Defendant was
taken into the service of the Sierra Leone Company, and was sent by the said
company to the said Colony of Sierra Leone, and was at one time appointed the
Judge or Chief Justice of the said [219] settlement or colony, or acted in that
capacity, and was afterwards appointed by the said company governor of the said](ViewImageLocal?handle=hein.slavery/ssactsengr0833&div=1&collection=&method=preview&ext=.png&size=3)