Another objection has been taken, much more formidable. A court of equity, in the institution of any suit, desires to do complete justice, and to have before it all parties who are in any manner connected with the subject of the suit, and who have rendered themselves liable to any part of the demand. Now it is said, the authority was an authority conferred on them by the majority of the vestry; that the majority are to be considered as the persons who actually employed Knight and Freeman, the persons who signed the paper only acting under the instructions of the vestry; and that the majority of such vestry ought to be made parties to the suit, and called to contribute. That is the point which at first staggered me. Undoubtedly those are the persons who occasioned the expense; but when the case is more clearly looked at, the reasoning turns out thus:-This professes to be a resolution of the vestry. Were those persons, who signed the paper, bound to act on the resolution of the vestry? The vestry could not empower these several persons, in their official characters, to institute any such suit. There was an act of parliament which enabled the vestry to take some proceedings; but the act says expressly, that they are to be prosecuted by their vestry clerk. The act of parliament, therefore, has no relation to this proceeding, which is not by their vestry clerk, but by other persons, to whom they were not authorized to give such an authority.

Recourse cannot be had to this majority of the vestry; and this plaintiff is entitled to call for contribution from those persons who stand in the same situation with himself, and were equally responsible with him.

The plaintiff is entitled to a decree against all the defendants except Bumford, who did not sign this paper, and another defendant, who appears to have paid a sum which the plaintiff thought fit to receive as his proportion of the costs.

The decree must be with costs.

following trusts: that is to say, upon trust, in the first place, to sell an advowson, and to apply the money in discharge of his debts and legacies; and if that should not be sufficient, to fell timber for the same purpose, &c.; but he declares no trust applicable to the personal estate, and makes no residuary disposition either of it, or of the real estate; he then appoints A and B his executors, and directs that they shall retain their costs and expenses :

Held, that A and B do not take the residue of the personal estate beneficially:

That the personal estate remains the primary fund for the payment of debts and legacies; and that the real estate is charged only in aid of it.

John Shirley Fermor, by his last will, bearing date the 1st of October 1791, gave and devised all his real and personal estate whatsoever and wheresover, unto his friends, Michael Bray and Edward Rudge, their heirs, executors, administrators and assigns, upon the following trusts: that is to say, upon trust, in the first place, to sell and dispose, as soon as conveniently might be after his decease, of his living at Crayford; and to apply the money to arise by the sale in discharge of his debts and legacies, and the costs and charges of the trusts thereby created; and, if the said money should not be sufficient to discharge the said debts and legacies as aforesaid, upon further trust to cause timber to be felled on one or all of his thereinbefore mentioned real estates, to the amount of 500l., the same to be applied in discharge of his said debts and legacies; and if the money arising by the sale of such timber should not be fully sufficient to discharge the same, then, upon further trust, by mortgage or sale, to raise such deficiency on all or any of his said real estates, for the purpose of paying off the said debts and legacies, and the costs and charges of the trusts thereby created, and to apply the same accordingly; and, upon further trust, by the ways and means aforesaid, or any of them, to raise and pay divers legacies, which he gave to certain persons therein named and upon this further trust, that the said trustees, their heirs, executors, administrators and assigns should stand seised and possessed of his said real estates, or so much thereof as should re

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main after answering the purposes aforesaid, in trust, as to the rents and profits thereof, for his mother Elizabeth Fermor, and his wife Catherine, during their lives and the life of the survivor; and after their decease, during their joint lives, in equal proportions; and after the decease of his said mother, in case his said wife should survive her, then in trust for his said wife during her life; and if his said wife should die in the lifetime of his said mother, then, after the decease of his said wife, in trust for his said mother during her life; then, in trust for John Austen, during his life; and after the decease of the said John Austen, in trust for Henrietta Burton during her life; and after her decease, in trust for all her children who should attain the age of 21 years, in equal portions, and their respective heirs, executors, administrators and assigns. The testator also declared certain further trusts of his freehold estates, in case his wife should marry after his decease, (which, however, did not happen,) and there should be any child or children of her body living at the time of her decease. The testator also appointed Michael Bray and Edward Rudge executors of his will; and directed, that his said trustees and executors, and their heirs, executors, administrators and assigns, should deduct and retain their respective costs, charges, and expenses, and for their trouble in the execution of their trusts thereby in them reposed, and in relation thereto.

The will did not contain any general residuary disposition of his real and personal

son of Crayford, and the timber, constituted the fund for the payment of debts and legacies.

Mr. Heald and Mr. Pooley appeared for the executors;

Mr. Hart, and Mr. Wakefield, Mr. Horne, Mr. Pechell, and Mr. Wray, for other parties.

The argument lay chiefly on the executors, who contended, first, that according to the authority of Dawson v. Clarke, (1) they took the personal estate beneficially. There, the testator bequeathed his estate and effects to his friends Wealleons and Clarke, their heirs, executors, administrators and assigns, upon trust, in the first place, to pay, and charged and chargeable with his debts and legacies; and, after giving some legacies, he appointed Wealleons and Clarke his executors. In deciding that case, Sir William Grant says: (2) "Here, the devise is to the two executors by their names, without any reference whatsoever to their character of executors, with which at that time they were not clothed. There is no connexion between the appointment of executors and this trust, in the first part of the will; nor are there any words accompanying their appointment, or subsequent to it, which imply, that the testator considered them as subject in that character to any other trust than the law imposed upon them; or as having any other interest than that which the law gives them. They are therefore entitled to the residue for their own benefit." The same principle-the same words apply to this case; and, as Sir William Grant's decision in favour of the executors, was afterwards confirmed by the Lord Chancellor, the executors must be held to take the personal estate beneficially. But the testator was aware, that his personal estate was too inconsiderable to satisfy even his debts and legacies. His intention, therefore, must have been to make the real estate the primary fund for the discharge of these demands. If we look to the language of the will, no reasonable doubt can be entertained; the trustees are to sell the living of Crayford with all convenient speed; if the produce of that sale is not sufficient to discharge the debts and legacies, timber is (1) 15 Ves. 409, & 18 Ves. 254. (2) 15 id. 416.

to be felled; and if there is still a deficiency of funds, they are to proceed to a sale or mortgage of the other real estates. All the expressions, all the directions are such as might be expected from a testator, who meant his legacies and debts to be paid out of his real estate; and there is a complete absence of every thing that might have been expected, if the purpose had been, that the personalty should be the fund first applicable to the payment of debts and legacies.

Vice Chancellor.-The simple question in this case is, whether the personal estate of this testator, not specifically bequeathed, is exempt from payment of his debts and pecuniary legacies. This is a mere question of intention; and it has long been settled, that the direction of the testator to sell or mortgage his real estate, for the the payment of his debts and legacies, is not alone evidence of an intention, that the personal estate should be exempt from the charge; and that it amounts only to a declaration, that his real estate shall be so applied, in so far as the personal estate, which is the primary fund for satisfying them, shall be insufficient for that purpose.

In order to exempt the personal estate from being first applicable to payment of debts and legacies, there must be either express declarations, or provisions, from which such exemption is to be clearly inferred. Such being the nature of the question, there may be frequently a difference of opinion between two judges who are called to consider the same case.

This testator begins his will by giving all his real and personal estate to his friends Michael Bray and Edward Rudge, their heirs, executors, administrators and assigns, upon the following trusts, that is to say [Here his Honour read the will, remarking, that the testator had not explained out of what fund the trustees and executors were to be indemnified.]

It is argued for the executors, that the first gift of the personal estate to them is a gift for their personal benefit; because it is given to them not as executors, but as trustees; and is therefore to be considered as if given to trustees who were not named executors; that then, according to Dawson v. Clarke, the personal estate would vest in them, subject only to such trusts as the

testator had declared in his will; and that here, the testator having declared no trust in his will as to the personal estate, the whole personal estate belonged to the trustees, though they were also executors.

If it were admitted, that this case was within the authority of Dawson v. Clarke, and that the personal estate was beneficially given to the trustees, though executors, the question would still remain, whether it were any thing more than a gift of the residue of the personal estate, after the payment of the debts and legacies; and whether, in their hands, it was not still primarily applicable to the payment of debts and legacies. But, upon a careful perusal of Dawson v. Clarke, as reported both before the Master of the Rolls, and before the Lord Chancellor, that case can be cited as an authority

only to this extent: that, in Dawson v. Clarke, the residuary personal estate was held to be in trustees, who were afterwards named executors; because, the words of the gift were to them upon trust, in the first place, to pay, and charged and chargeable with all the testator's just debts, personal expenses, and legacies. The trust was not general, but was qualified by the words. charged and chargeable with, &c.; and there was no trust beyond this particular charge.

In the present case, there is no such limitation of the trust, but the whole is given generally on the trusts which follow; and, therefore, the case of Dawson v. Clarke is not applicable here. The direction, that the trustees and executors should deduct and retain their respective costs, charges and expenses, and for their trouble in the execution of the will, affords a conclusive inference, that it was not the intention of the testator, that they should take any beneficial interest; and I am therefore of opinion, that there is no beneficial gift of the personal estate to the persons who are named executors.

If there be no gift of the personal estate, except the gift to the trustees upon the trusts which follow, then there is nothing which can be treated as evidence of the intention of the testator, that the personal estate should be exempt from the payment of debts and legacies other than these two: first, that the testator has not added an express declaration, that the charge on his real estate should be only in aid of his per

sonal estate; and secondly, that he begins by directing the trustees to sell his living at Crayford.

With respect to the first point, as the rule of law directs the primary application of the personal estate to payment of debts and legacies, a declaration of the testator to that effect is not necessary: and with respect to the second point, if it be supposed, that the testator considered his personal estate not specifically bequeathed, as of inconsiderable amount; and that, at all events, the sale of this living would be required; that would sufficiently account for the form of the expression, by which he has directed the living to be sold, and timber felled, for the discharge of his debts and legacies and though, on account of the uncertainty of the amount of the personal estate, it is not safe to aid the construction by evidence; yet, such a presumption may fairly be made in reasoning on it, if the intention is collected from all other parts of the will.

My conclusion is, that the real and personal estate being both given generally to the trustees, on the trusts which follow in the will; and there being no trust expressly declared in the will to which the personal estate can be applicable; and the testator not having prescribed the order in which the real and personal estate are to be applied the personal estate must primarily be applied to the payment of the debts and legacies.

Mr. Treslove appeared in support of the motion;

Mr. Hart contrà.

For the defendant, it was contended, that the policy of the law was, that attornies and solicitors should be protected from arrests on mesne process, both in their own court and in other courts. An attorney of the Court of King's Bench could not, on proceedings there, hold an attorney of the Court of Common Pleas to special bail: why then should an officer of the Court of Chancery have a more extensive privilege, against the privilege of an attorney of the

Courts of Common Law? The character of attorney should alone be a sufficient protection to Smith. But besides this, he was a solicitor of the Court of Chancery; and his privilege as a solicitor would exempt him from any privilege of another officer of the same court. Enormous mischief and inconvenience might arise from such a practice as the plaintiff now contended for. The solicitors, who were to conduct the causes

actually in the paper for hearing, might be

arrested, and the whole business of the Court impeded.

Mr. Hart (contrà) relied upon the established practice. Each court determined what privilege it would allow for or against its own officers; and the uniform practice had been for the sworn clerks, suing on attachment of privilege, to hold a solicitor or attorney to bail. The office of clerk in court was, in many respects, by no means analogous to that of attorney in a court of law.

The Lord Chancellor was of opinion, that, by the uniform course of practice, which constituted the law of the Court, an attorney or solicitor had no privilege against a sworn clerk, proceeding in the Petty Bag by attachment of privilege. The arrest, therefore, was regular.

The motion was refused, with costs.

Spanish government, certain monies, which are appropriated by the treaties, to the satisfaction of certain claims of Spanish subjects upon France :-Held, that a court of equity will not grant a discovery and commissions to examine witnesses abroad, in aid of an action brought by a plaintiff, who, though he has no claim under the treaties, demands a portion of the funds as belonging to him under the authority of the Spanish government, directing them to be applied to the general exigencies of the state.

To a bill for discovery and commissions in aid of an action at law, it is a good plea to show that the plaintiff has not a valid cause of action.

The bill was filed by Mendizabal against Machado, for a discovery and commissions to examine witnesses abroad in aid of an action, which the former had commenced against the latter. The bill alleged, that in April 1822, the government of France placed, at the disposition of the government of Spain, by virtue of some conventional arrangements entered into between them, 184 millions of francs of French rentes, 12 millions of which were shortly afterwards, by order of the executive government of Spain, transferred to, and invested in the name of M. de Noguera, then chargé d'affaires at Paris; that in August 1822, in consequence of the removal of M. Noguera from his official situation, the defendant Machado, a subject of Spain, who had formerly exercised the functions of consul general for the Spanish government, and was otherwise confidentially employed by it, received orders and instructions from the executive government of Spain, to take charge of the said rentes or inscriptions, and to hold them at the order and disposition of the said executive government, as he should from time to time be instructed; that the said 12 millions of rentes and inscriptions were accordingly, by the order and under the authority of the said executive government, actually transferred to, and invested in the private name of Machado; that in the commencement of 1823, the Spanish government directed him to sell out the rentes which stood in his name, and to hold the proceeds at the disposition of the executive government; that the defendant accordingly did so, and realized a sum of

300,000l. and upwards; that he communicated what he had done to his government, who approved of his proceedings, and directed him to place the money (he had then repaired to London,) in the Bank of England; but that he kept the whole of the money in his hands, or in those of his agents, and at his absolute control.

The bil further stated, that the assembly of the Cortes then convened, according to the constitution of the kingdom of Spain, by a solemn and legitimate act, specially authorized the said executive government, to apply and dispose of the said 12 millions of rentes and inscriptions, and the produce thereof to the exigencies of the said executive government; that thereupon the executive government, by the proper functionaries and ministers thereof, immediately afterwards applied to the complainant, who was then engaged in extensive transactions, and requested him to make the advances, which were immediately required for the exigencies of the government, upon the faith of, and to be secured and reimbursed by, an absolute assignment and appropriation of the said funds; whereupon the complainant required the said functionaries to produce and show to him the several official and private communications of Machado, which was accordingly done; and that the complainant, under the sanction of the said act of the Cortes, and putting confidence in such communications and letters of the defendant, and in the statements and representations therein contained, agreed to make such advances for the purposes, and upon the terms aforesaid; that in pursuance thereof, the complainant made advances to the executive government, to the amount or value of 111,566l. 12s. 7d. sterling money; and received from the executive government, in consideration for such advances, by way of security, and of assignment and appropriation of the funds, so being in the hands of, or under the control of Machado, several orders for the payment of money, or bills of exchange, addressed to Machado, and signed by the treasurer general of the nation, amounting in the aggregate to the sum of 111,5667. 12s. 7d.; that the Spanish government advised the defendant of these transactions, and directed him to pay the bills of exchange, which they had so drawn