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![handle is hein.slavery/ssactsengr1015 and id is 1 raw text is: defeated the execution. Accordingly, a second execution was actually levied. It
would be very harsh and perilous tb draw the line. How many men have been saved
by the delay of a day or two ! Shall it be fraud to delay three or four days, or after
what time? The defendant was totally mistaken in the intent of the execution,
which was, that the plaintiff should get his money on the other debt, and then have
the benefit of his judgment. He is precluded by the delay: the general law precludes
him; and, could that be defeated, the particular says, that a man using goods of
another as his own, the creditor shall seize them. What remedy the creditor may
have by other ways, concerns not this matter. I am of opinion, this was not an act
of bankruptcy on the fifth of April.
Mr. Justice Aston was of opinion, that the words attached and sequestered are not
of execution; but are applied where there is an ostensible lien on a secret trust to
defraud creditors: otherwise they would have used the proper words, [my Lord
Mansfield had observed this] shall procure an execution to be executed. The
subsequent transaction cannot make it a procuring.
The secret execution was, undoubtedly, delayed fraudulently; but no fraudulent
agreement to make a bankruptcy. The goods in execution are liable for the creditor;
and Spotwood must lose them. The creditors may have their remedy; as in the
case of Rice: but we have no right to construe this, which is juris positivi, to be an
act of bankruptcy. I express no positive opinion on the former point; but I am of
opinion on the latter, that it is no bankruptcy.
Mr. Justice Willis inclined to think attachment and sequestration would not take
in execution; because arrest was subjoined, on mesne process; said he was precluded
from [122] taking the agreement to have been before the 5th of April, by the finding
of the jury: and whatever he might otherwise have thought, he was now bound, by
a positive finding, from questioning that point; and, that being admitted on the
finding, he was also precluded from construing the act of bankruptcy to refer to the
execution on the fifth of April.
Mr. Justice Ashhurst expressed his concurrence with. his brothers on the Bench,
on the doubt of attachment and sequestration, referring to execution. He considered
the case as decided on the other point: the procurement of the execution by Grey
not being proved, without which no subsequent act could make a bankruptcy.
HATTON against HooI-.
[S. C. 2 Dick. 491; 1 Bro. C., C. 390, n.; sub nom. Hooley v. Hatton, 1 Wh. &
T. L. C. 865. Applied, Ridges v. Morrison, 1784, 1 Bro. C. C. 390; Curry v. Pile,
1787, 2 Bro. C. C. 226. Discussed, Allen v. Callow, 1796, 3 Ves. 292; Barclay v.
Wainwright, 1797, 3 Ves. 465; Osborae v. Duke of Leeds, 1880, 5 Yes. 380.
Approved and applied, Hemming v. Clutterbuck, 1827, 1 Bli. N. S. 492; Suisse v.
Lowther, 1843, 2 Hare, 432. Affirmed, 12 L. J. Ch. 315. Referred to, Lee v. Pain,
1844, 4 Hare, 220. Applied, Wilson v. O'Leary, 1871, L. R. 12 Eq. 531.]
Before the Lord Chancellor, on the corfstruction of the effect of a devise of a
.codicil added to the will of Lady Isabella Finch, on appeal from Sir Thomas Sewell,
Master of the Rolls.
This case came on to be argued Michaelmas term 1772, and was thus:
Lady Isabella Finch gave by her will to Lydia Hooley five hundred pounds: she
then gave an annuity by a codicil; afterwards she gave by another codicil a thousand
pounds. The words were these- I add this codicil to my will: I give to Lydia
Hooley a thousand pounds.
Mr. Solfitor-General.-It is of little consequence what rule of presumption is
-established, where intention stands neutral: but it is of great consequence there
should be some settled. In the case of portions, the last declaration of intention has
been understood to take in the full and whole intention. Bruin and Bruin, (Peere
Wins.) and others.
For the case of legacies particularly, Masters and Masters. There was reason to
think an addition was intended; for between the will and codicil the testatrix had
received a very great accession of fortune. Duke of St. Alban's and Beauclerk (Atkins).
Lord Hardwicke's opinion in the case is incorrect; but we may easily conjecture what
566
HATTON V. HOOLEY
LOFFT, 122.](ViewImageLocal?handle=hein.slavery/ssactsengr1015&div=1&collection=&method=preview&ext=.png&size=3)