Open main menu

Page:United States Reports, Volume 2.djvu/55

This page needs to be proofread.


Pbiladehbbia Couirr or Comrox Pans. gg . is the bell: 3 Where the parties are equal in equity, the pri- moo. ority of right fumilhes a fair rule for deciliong and the claim Lrvxal of Willing Es" Merril is not only founded on a greater value in f point of confidence, but on a {`uperior title in point of date. The executors had early notice of it ; they were julliliable in retaining the legacy to pay it; and the aétion now trying is fullicient evidence of their refufal (after being wamed for that purpofe) to recognize the adverfe allignment. The Pxesrosnr, havingrecapitulated the evidence as {lated in the commencement of this report, proceeded in delivering the following charge to the jury. Sr-rr1·1·1-m, Pr_¢dmt-'1`he aélion brought to recover the legacy in que{lion, turns, in reality, upon a difpute between Rude U Forde (who have a right to ufe the legatee’s name on the occafion) upon the one hand, and Williiig if Murrir, upon the other. '1`he allignees of the nominal plaintiif have produced a regular transfer of the legacy; and are unqueltionably enti- tled to a favourable verdiét, unlefs their claim is fatisfaélorily I · repelled by any circumltance of law or equity, ariling from E the defence which has been made. _ It is objeéted to their claim, then, that Willing E5 Marr:} are entitled to the legagy, by virtue of a prior allignmeut; and although this allignment is not To regularly proved as the _ · other; yet, the defendamfs counfel has argued, that it is equally elfeéhral in point of equity. The faéts refpeéling the alledged aflignment to W7lling Es' Mard: are briefly, that G. Inglis, being entitled to a fum of money for his {hare in the commif- lions, ariling from the fale of goods conligned to S. Iugli: U C0. applied for payment to Willing £9’]lIarri.r, the furviving part- ners; that they refufed, at firli, to rnake the payment, infilling that they would retain the amount in fatisfaélion of a debt due to them from G. Inglir; but that eventually they complied, being {lrongly folicited by G. bzglir, who in his letters offered to {`erve them in any way, and particularly to make over his legacy; Now, it is contended, that this compliance mu{`t be taken to have been on the terms ofthe requefl; and thatthe terms amount, at leall, to a promife of an allignment. The _ cafe upon the fails difclofed is not, indeed, free from doubt, but if the jury {hall, upon the whole, be of opinion, that the parties, in paying and receiving the commillions, contemplated and intended a transfer of the legacy as a confidcration, then, the law ltatcd by the defendants being well founded, the pro- mife to allign created an equitable right, and, without any further formality, veiled the legacy in lVilling &•J’ Jlforrir. For, by making and accepting an olfer, every bargain is confummated. Much has been faid on the point of notice; and, it is true, that if the obligee of a bond alligns it, notice ought to be giverr G to