Collett v. Preston. course. The plaintiff, in his affidavits, suggests certain amendments; and I think they are material for him, if it was necessary for me to form an opinion on the materiality of them. But if his case comes under the 67th Order, it is enough that he swears that they are considered by him and his adviser to be material. Why, then, should I exclude him from the 67th Order? Supposing the construction right which I have referred to, I do not see what there is to turn him over to the 68th Order. I wish at the same time to remark, that I do not think these affidavits altogether satisfactory. There is, in many instances, a generality I should say a studied generality—which ought not to be observed. It was intended to give to the court those precise statements, which they wish the court to believe they meant to do. For instance, the word "recently" might have a meaning attached to it by one man, very different from that which another man would put on it; and where the statement is made to enable the court to form a judgment of the degree of expedition, to say a party has used reasonable diligence, means nothing; and if this case came under the 68th Order, I should say that the affidavits are too general, they are not made in a fair way to inform the court, and that they are insufficient. But I consider the case comes under the 67th Order, and I think the affidavits are sufficient under that order. And looking at the case, I should say that it is a case peculiar in itself, with respect to the difficulty which the plaintiff has met with in order to make out his case, if it is true. And when you look at the enormous expense which has been incurred, were I to compel him to file a new bill, I think that I should not exercise a wise discretion at all, where a plaintiff presents a case which, if true, would entitle him to relief. It appears to me that there ought to be negligence where a court withholds the amendment. I do not see that there is any here. The order ought, therefore, to be discharged, and the plaintiff ought to have reasonable time to amend. He says his amendments are now ready, and therefore he cannot want much time. The original application at the Rolls ought to be granted; and if it ought to have been granted, the next question is with respect to the costs. How ought the costs on that occasion to be disposed of? It is clear, from the great struggle to get rid of this case, that it is not an ordinary one. I have heard twelve counsel on a motion whether the plaintiff ought to have liberty to amend; and, in a case as complicated as this appears to be, it does not appear that the objections which were urged to the amendment of the bill were objections which ought to have been urged. Notwithstanding a sufficient period of time had gone by to enable some of the defendants to move to dismiss, I think the plaintiff was entitled to his application to amend, and, therefore, he ought not to pay the costs. The order of the Master of the Rolls discharged; the plaintiff to have a fortnight to amend; the costs of both motions to be costs in the cause. Matthews v. Bagshawe. MATTHEWS v. BAGSHAWE.1 May 9, 1851. Executors in India of an indigo planter held entitled to a commission of 51. per cent. on the gross assets collected by them, whether such assets be collected by themselves or their agents, and not merely on the balance remaining after satisfying the claim of the agents for their advances, interest, and commission. THIS case came before the court on exceptions taken by the plaintiff to the master's report, and involved the question as to what was the proper amount of commission to be allowed to the executors of an indigo planter in India. The established rule is, that executors, whilst resident in India, are to be allowed 5l. per cent. on the assets collected by them. In this case the testator was an indigo planter resident in India, and he employed Messrs. Bagshawe & Co. as his agents in England. He was indebted to Bagshawe & Co., at his death, in the sum of 165,488 rupees, for advances usually made by agents to planters to enable them to cultivate and manufacture the crop, and Bagshawe & Co. also made further advances to the executors to enable them to get in the crop. The executors sold the factories of the testator for 193,938 rupees, which they remitted to Bagshawe & Co. The executors also got in the crop, and sent it to Bagshawe & Co., who, by the custom of the trade, had a lien on the proceeds of the crop for their advances and interest thereon, and commission. The crop was sold for 221,694 rupees. The total proceeds from the factories and crop were 415,587 rupees; and Bagshawe & Co., having deducted 242,889 rupees, the amount of their debt and commission, from the above sum, accounted to the executors for the balance, 172,698 rupees. The executors claimed a commission of 51. per cent. on the total proceeds of the factories and crop, and this was allowed by the master. The plaintiff, on the other hand, contended that the commission ought only to be allowed on the balance, after deducting Bagshawe & Co.'s claim, or, at all events, on the proceeds of the factories, which was the amount of assets actually received by the executors. The opinion of a barrister who had practised in India was adduced in support of this view of the case. R. Palmer and J. Baily, for the exceptions, contended, that as Bagshawe & Co. had a lien on the proceeds of the crop for their debt, the commission of the executors could only attach on the balance remaining after payment of that claim; and that it would be oppressive to allow two sets of commissions one to the agents, and the other to the executors. Roupell, Walpole, Amphlett, and Selwyn, appeared for the other parties. Sir J. ROMILLY, M. R., without calling on the other side, said there 1 15 Jur. 977; 14 Beavan, 123. Harris v. Mott. were not sufficient grounds for him to think that the master had come to a wrong conclusion. By the law of England it had long been settled, that Indian executors, while resident in India, were entitled to 51. per cent. on the assets collected by them. There was no question that any sums received by an executor through his agent were subject to this rule; and it was admitted, that as to the money arising from the sale of the factories, it was received by Bagshawe & Co. as the agents of the executors. With regard to the crop, it was said that the contract with Bagshawe & Co. was such that the crop could not be diverted from them without paying them their commission. Admitting that to be so, still the executors might have taken the crop on paying them their commission. The relation of principal and agent existed between the testator and them, and also between the executors and them, subject to certain particular stipulations; but these stipulations did not alter that relation. It was, therefore, the ordinary case of principal and agent; and as, by the law of the court, the executors were entitled to a commission of 51. per cent. on their gross receipts, whether the same were received by themselves or by their agents, and as Bagshawe & Co. were the agents of the executors, he thought the latter were entitled to the commission allowed by the master; and he overruled the exceptions. HARRIS V. MOTT.1 July 3 and August 7, 1851. Married Woman. A feme covert entitled to real estate for her separate use, and her husband, entered into a contract for the sale of the property. Before the contract was completed the wife died, having devised the estate to her husband: Held, on claim filed by the husband surviving to enforce the contract, that a decree to that effect could not be made in the absence of the wife's heir. Semble, such a contract could not be enforced by the husband. THIS was a claim for the specific performance of a contract, entered into by William Harris and Elizabeth his wife, for the sale of certain freehold and copyhold property, to which the wife was entitled for her separate use. The property was devised to Elizabeth Harris, to and for her own sole and separate use and benefit. On the 23d January, 1849, an agreement was entered into between William Harris and Elizabeth his wife of the one part, and the defendant of the other part, whereby Harris and his wife agreed, and the latter separately and apart from her husband, in respect of any separate estate she might have in the property, agreed, to sell it to the defendant for the 1 15 Jur. 978; 14 Beavan, 169. Blachford v. Toller. sum of 6104. 12s. Before the completion of the contract, Elizabeth Harris died, having by her will, dated after the contract, devised the property to her husband, William Harris, in fee; and he filed the present claim to enforce the completion of the contract. A refer ence to the master was dispensed with, as the parties admitted that the only questions were, first, whether the contract was binding on the wife; and secondly, whether her will, made during coverture, was effectual to dispose of the estate to her husband. R. Palmer and M' Queen, for the plaintiff, contended that the property being settled to the separate use of Elizabeth Harris, she was, by the recognized rule of the court, competent to enter into any binding contract respecting it. In Stead v. Nelson, 2 Beav. 245, a contract to grant a mortgage, entered into by a married woman entitled for her separate use, and her husband, was enforced against the wife after her husband's death. A feme covert, entitled for her separate use, had all the power of a feme sole over the property, and she could dispose of it by will, either to her husband or to any one else. 1 Sugd. Pow. 209, 6th ed.; Hearle v. Greenbank, 1 Ves. sen. 298. Haldane, for the defendant, was not heard. Sir JOHN ROMILLY, M. R., said, that the separate use was established for the protection of the wife against her husband, and not to increase her power of disposition. If any distinct authority could be cited, he must act upon it; but, in the absence of such authority, he thought the case was too doubtful to compel the defendant to accept the title in the absence of the heir of the wife. He could not in his absence decide that he was a mere trustee of the legal estate. August 7. The case was again mentioned, and leave was given to amend the claim, by asking, in the alternative, that either the agreement might be specifically performed, or that the defendant might deliver up possession and account for the rents to the plaintiff, who was at all events tenant by courtesy; and an order according to the latter alternative was made on the above day. BLACHFORD v. TOLLER.1 March 5, 1851. Unsettled Accounts Intermediate Dividends of Fund in Court. Where executors had invested money to answer claims on unsettled accounts between their testator and other persons, and paid the dividends to the tenant for life under the will, on 4 15 Jur. 979. In re The Merchant Traders' Ship Loan and Assurance Company. a claim filed after the death of the tenant for life, by a party entitled to the fund, the court directed an inquiry before the master as to who was the party entitled to the capital, and ordered the dividends to be paid in the mean time to the person entitled to the testator's estate. THIS was a claim filed under the following circumstances:- Mr. Alderman Skinner, who was an auctioneer and land surveyor, had received various deposits from purchasers of property sold by auction by him. At the time of his death, which took place in 1808, many of these accounts were unsettled, and his executors invested, in their names, in consols, a sum sufficient to answer all claims in respect of these accounts, and paid the dividends to the tenant for life of his property under his will. The tenant for life having died, the party beneficially entitled to Mr. Skinner's estate, filed a claim against the representatives of the surviving executor of Mr. Skinner's will, for a transfer of the stock, and payment of the dividends thereof which had accrued since the death of the tenant for life. Foster, for the plaintiff. Wigram, Osborne, and Schomberg, for the defendant. KNIGHT BRUCE, V. C. Let the stock be brought into court, and let it be referred to the master to inquire who is now entitled thereto, and let all arrears of dividends and the future dividends be paid to the plaintiff. In re THE MERCHANT TRADERS' SHIP LOAN AND ASSURANCE COM The master has a discretion as to the appointment of the official manager, and the court will not interfere when the party appointed is not shewn to be unfit. THIS was a motion made on behalf of the trade assignees of the Merchant Traders' Ship Loan and Assurance Company, which was bankrupt, that the order of the master appointing Mr. Harding official manager of the company might be discharged, and that Mr. Hutton, the person proposed by the appellants, might be appointed such official manager. Under an order of the commissioner in bankruptcy, the appellants, the trade assignees, had applied for and obtained the order for winding up the affairs of the company. Before the master three persons were proposed for the office of official manager, one by the appellants, and two by contributories of the 1 15 Jur. 981. |