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![handle is hein.slavery/ssactsengr0849 and id is 1 raw text is: CHARLTON V. WRIGHT
when, perhaps, it may not appear that the applicant has any title at all to the fund.
The two cases appear to me to be extremely dissimilar. Therefore, if I only find that
there is a grave question which cannot be determined until the hearing of the cause; and
that the fund in dispute is in this Court, I think that the same principle which (where
an application is made by a party, whose title is not admitted, to have the possession
from another of a fund which the applicant claims as his) would lead [272] me to say
that the fund should remain where it is, would also lead me to say, where the fund
is in Court, that it shall remain in Court; because the Court is not taking the fund from
any person, but is merely keeping that which it has possession of until the grave
question is determined.
It strikes me also that there is this difficulty in this case. The bill in the Petitioner's
suit is filed impeaching the order which was made in June last; and it is filed,
not in the shape of a bill of review, nor in the shape of a bill asking relief .against an
order or a decree, on the ground that it was obtained by fraud. I use that particular
phrase, because, though the bill does aver collusion, yet there is no passage in the
affidavit which supports the bill in that respect; and, therefore, I must take it to be
a bill not proceeding on the ground of collusion; and it seems to me that there may
be a very great difficulty in interfering with an order made in a cause, where the
bill which is filed to impeach it is not a bill of review, nor a bill proceeding on the
ground of fraud. But, notwithstanding there may be a very considerable difficulty
on those grounds, I think that it is a difficulty which ought to be dealt with at the
hearing.
Then the application which is made in this case is made by a party who makes
the strength of his case and the hardship of his case to consist in this, that, if the
Court does not interfere, he will lose several thousand pounds; but notwithstanding
the cogency of his case in respect of the largeness of the fund that he may lose, he
yet contents himself with coming forward in the shape of what may almost be
called a pauper administrator; he comes here with letters of administra-[273]-tion,
having no higher stamp on them than is required for the smallest amount of property
mentioned in the Stamp Act. At the same time, I am willing to admit that, in cases
where a claim has been made by a Plaintiff as administrator, and the suit has gone
on without any objection being made, this Court has allowed the party to recover at
the hearing, if, at the time of the hearing, a proper administration is produced. I
think, therefore, that it would be too harsh to say that this petition must be dismissed
merely because the letters of administration at the present moment are not sufficiently
stamped ; and that a reasonable time ought to be allowed to the party who makes the
application by petition to come to the Court with a sufficient administration.
It therefore appears to me, on the whole, that the fair thing is to let this petition
stand over for a certain short time, giving leave to the Petitioner in the meanwhile
to procure his letters of administration to be adequately stamped; which, if he does,
the proper course will be to make an order which will have the effect of retaining in
Court the difference between the £46,286, 14s. 8d. and that share of it which clearly
belongs to the Commissioners of Charitable Donations.
[274] CHARLTON V. WRIGHT. July 9, 1841.
[Observed upon, Turner v. Cox, 1853, 8 Moo. P. C. 288; 14 E. R. 111.]
West India Estate. Stat. 5 Geo. 2, e. 7. Assets. Administration. Debtor and Creditor.
Notwithstanding West India estates are made legal assets by 5 Geo. 2, c. 7, s. 4, they
may be devised so as to make them equitable assets.
The testator in this cause devised an estate which he had in the West Indies to
his executors, in trust to sell and apply the proceeds in payment, of his debts. The
question was whether that estate was to be considered and dealt with as equitable or
as legal assets of the testator.
By the fourth sect. of 5 Geo. 2, c. 7 (for the more easy recovery of debts in His
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12 SIM. 272.](ViewImageLocal?handle=hein.slavery/ssactsengr0849&div=1&collection=&method=preview&ext=.png&size=3)