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![handle is hein.slavery/ssactsengr1017 and id is 1 raw text is: his election to pay off the debts, and keep the land; by which means the provision
of the statute would be evaded: and he instances a variety of cases in which a
devisee is entitled to make such election. And it certainly is so. But the defect of
the argument lies here, and the objection may be answered thus: No, a Roman
Catholic shall not make his election; because there is a law, which says, that being
a Papist he shall not take the land : and, therefore, a Court of Equity would decree,
that he should take it as money. Something like it was said in the case of Bowes
versus Lord Shrewsbury.t
[468] In common cases, where money is given to a charity to be laid out in land
or Government security, though a common person in a like case may elect to have
the land, the charity cannot; because it is unlawful: and therefore though the
election be given, yet one alternative being lawful, and the other not, a Court of
Equity says, you shall do that which is lawful.
In the marginal note in Bacon's Abridgment, vol. 3, 796, title Papists; and
which is supposed to be taken from Lord Chief Baron Gilbert's notes, it is said, that
where lands are devised to, or vested in trustees to be sold for payment of particular
sums to several people, some of whom happen to be Papists, that this Act does not
prevent such Papists from taking the particular sums or legacies intended for them
because they cannot insist upon paying off the other incumbrances, and holding the
estate, as a person can do, to whom the residue of the purchase money is devised.
That goes a great deal further than this case; for a legacy charged upon land is very
different from a mere power to sell. But I cannot see a doubt in this case: this is
only a power to the executors to sell. What is the claim of tib'e creditors? To be
paid out of legal assets. The creditor has no interest in the land. He can have no
claim upon the land, nor make his election to pay off the incumbrances and keep the
land. He can have nothing till the land is turned into money. Here it is turned
into money. If the executors had refused to sell the land, he could only have obliged
the executors to sell: and till sold he has no interest whatever. Suppose a man ies
and leaves a number of leases for years: a Popish creditor cannot take a lease for
years, any more than he can a fee-simple. But can there be a doubt that he would
have a claim upon such lease as assets?
No precedent has been produced against the claim of the creditors in this case.
I should expect a precedent before I decided that a creditor should not be paid out
of the assets, only because he happens to be of a different way of thinking from the
established mode of religion. Therefore I am clear that this debt ought to be paid
out of the assets arising from the sale of these estates.
Mr. Justice Aston and Mr. Justice Ashhurst concurred.
Afterwards the Court certified in these words. Having heard counsel and
considered this case, we are of opinion that a creditor, who is a Papist, is entitled to
receive his debt out of the money which has arisen by the sale of the testatrix's real
estate, according to the appointment by her will.
[469J ShaTH ET AL. Assignees of Hague, versus DE SILVA ET AIL. Same day,
1776. One of three partners in a ship and cargo, the cost and outfit of which
was 4568. pays only 4101. in part of his third share, and gives his notes for the
remainder; but, before, they become due, is declared a bankrupt. The other
partners cannot, by voluntarily discharging the notes, stand in his place for any
share of the profits. But the assignees are entitled to a full third both of the
profits of the adventure, and of the value of the ship.
[Discussed, Holderness v. Shackles, 1828, 8 B. & C. 618.]
This was an issue out of the Court of Chancery, to try whether the plaintiffs, as
assignees of Edward Hague, a bankrupt, were entitled to one third part of the profits
of the adventure of the ship Unanimity, from London to Africa, from Africa to
Jamaica, and from thence to London, and also of the sale of the ship.
This cause came on to be tried at Guildhall, London, at the sittings after Easter
term 1776, before Lord Mansfield, when the jury found a verdict for the plaintiffs,
t Vide this case in Brown's Parl. Cases, vol. 5, 269.
2 COW. 468.
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SMITH V. DE SILVA](ViewImageLocal?handle=hein.slavery/ssactsengr1017&div=1&collection=&method=preview&ext=.png&size=3)