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lapses, if the grandchild die in the lifetime of the testator, without having lineal descendants. Ballard v. Ballard, 18 Pickering, 41. 2. (Bequest in trust.) A testator gave to his daughter, a feme covert, “the interest of 50,000 dollars, from the time of his decease, during her natural life, at her decease the principal to be equally divided among her children,” and his executors, being residuary devisees and legatees, gave bond to the judge of probate for the payments of all the debts and legacies. It was held, that the testator did not intend to place the sum above mentioned in trust for his daughter, and secure to her the income thereof, but that he intended to give her a definite annual sum, equal to the lawful interest on 50,000 dollars, to be paid by his executors out of his estate. Swett v. Boston, 18 Pickering, 123. 3. (Residuary clause.) A testator, after devising one third of his real estate to his wife for her life, and reciting that he had hitherto done something for his children when they were setting out in the world, according to his abilities, gave to his children, including F., the tenant, one dollar each, and then proceeded as follows: “And I constitute and appoint my son F. sole executor of this my last will and testament, and I give unto my son F. my wearing apparel and the whole of the farming utensils,” &c.; “and it is my will, that my said executor collect in all the money or debts I may have due to me at my decease, and also pay out and settle all the debts I may owe at my decease, and when my estate is all settled by my said executor, it is my will, that the remainder all go to my said son F.” At the time when the will was made, the testator also executed a deed of a parcel of his real estate to the tenant, and gave it to a third person, to be delivered after the death of the testator. The testator was possessed of no other personal property than that described in the will. The tenant lived with him for more than twenty years preceding his death; and no one of his other children lived with him during that period. It was held, that the remainder of the real estate of the testator passed to F. in fee, by the residuary clause of the will. Dewey v. Morgan, 18 Pickering, 295. DUTIES. (Laws imposing.) Laws imposing duties are not construed beyond the natural import of the language, and duties are never imposed upon the citizens upon doubtful interpretations. Adams v. Bancroft, 3 Sumner, 384. EQUITY. (Set-off.) Courts of equity, in cases of set-off, follow the law. Gass v. Stinson, 3 Sumner, 99. 2. (Answer in another suit.) The answer of a defendant in another suit, though good evidence against him, is not admissible against a co-defendant. Deater v. Arnold, 3 Sumner, 152. 3. (Purchaser at a master's sale under a decretal order.) Under a decretal order of the court, certain lands were sold by the master, and the purchaser, in conformity with a further decretal order, gave security to the master, in the shape of a covenant, with a surety, to pay the purchase money within fifteen days. The money was not paid, by either the principal or surety, within the appointed time. Held, that, on occasion of this default, a remedy at common law would be inadequate ; that no proper damages could be given at common law upon a covenant taken by a court of equity to enfore its own decretal orders; that a court of common law could not entertain a suit upon such a security; that whoever makes himself a party to the proceedings of a court of equity, and undertakes to do a particular act under its decretal orders, may be compelled to perform, what he has undertaken ; that a court of equity may, by attachment, compel a purchaser at a sale by the master, to complete his purchase, by paying in the purchase money; and that, a surety, who has made himself a party to the proceedings, as in the present case, is in the same predicament with the purchaser, and may be proceeded against by attachment. And it will make no difference, that the surety was not aware, that, in becoming so, he subjected himself to the summary process of the court; nor that the plaintiff had a right, on the default, to resell the lands; nor can the surety take any exception to the title, if the purchaser, his principal, has failed to do so. Wood v. Mann, 3 Sumner, 318.
4. (Same.) A purchaser under a master's sale will not be let off from his purchase by a submission to a forfeiture of his deposit. Ib. 5. (Same.) What circumstances amount to a waiver by the purchaser of a reference of the title to a master. Ib. 6. (Same.) Under the circumstances of the case, and in pursuance of a decretal order, the defendant was charged with interest up to the time of the final payment of the purchase money; although under the circumstances, the purchaser and surety were not charged with interest, after their default. lb. 7. (Same.) The principal and surety have no claim upon the rents and profits of the estate, except from the time when the conveyance to them is completed. 1b. 8. (Party to bill.) In the case of a bill against a banking corporation, to account for certain property held by them, as collateral security for debts due them from a third person, and to apply the surplus, after satisfying themselves, to the plaintiff's debt, the debtor is a necessary party to the bill. Wilson v. City Bank, 3 Sumner, 423. 9. (Statement of the place of the contract.) The bill did not state, in what state the parol agreement for copartnership was actually made, though it might be taken from the allegations to have been made either in Massachusetts, Maine, or New Hampshire. Semble, that this would be a fatal omission, if properly presented to the court. Smith v. Burnham, 3 Sumner, 435. 10. (Specific performance.) A court of equity will not interfere to direct a specific performance of an agreement, where the terms of the contract are not definite and full, and its nature and extent are not made out by clear and unambiguous proofs. Ib. 11. (Absolute conveyance treated as a mortgage.) A conveyance of certain premises, absolute in its form, but admitted, by the answer in chancery, to be a mortgage security merely for certain debts, was treated as a valid security to the extent of those debts, and the premises, subject to this charge, were held to be liable to judgment creditor of the original grantor. Chickering v. Hatch, 3 Sumner, 474.
12. (Maintenance and champerty.) The old cases with regard to maintenance and champerty go farther than would be now sustained in courts of equity. Baker v. Whitney, 3 Sumner, 476. 13. (Specific security.) Wiggin advanced money to Barrett and Brown, taking as collateral security the assignment of a policy of insurance for $10,000, underwritten by the American Insurance Company, on merchandise, being the proceeds of the money advanced. The ship containing the merchandise was lost at sea. Barrett and Brown also abtained from the American Insurance Company a loan of $7000 on a bottomry bond on the ship Tim, wherein Dorr was surety. This ship performed her voyage safely; but Barrett and Brown had in the meantime failed. The American Insurance Company took possession of the ship, sold her, and applied the proceeds, so far as they went, to the payment of the debt of $7000. They did not proceed, against the surety Dorr, for the balance; but, on his promise to indemnify them, retained from the loss on the policy above mentioned a sum sufficient to cover the balance (about $2826,12). Held, that Wiggin was entitled to the whole sum of $10,000 insured by the American Insurance Company, as the fund out of which his advances were to be paid, without deducting any claims of the company against Barrett and Brown; that his money, was lent upon this specific security; that he has a prior and superior equity over the surety, Dorr ; and that he has a right to be substituted in equity to the claim of the company on the bottomry bond against Dorr, to the extent of the sum detained by them. Wiggin v. Dorr, 3 Sumner, 410. 14. (Election of creditor.) The election of a creditor to retain or recover a debt from one of two parties, or out of one of two funds, no matter how positive may be his right to this election, cannot vary in a court of equity their rights inter sese. Ib. 15. (Specific right.) Whoever has bond fide acquired a specific right to a thing belonging to a debtor is entitled to hold it against all persons, who cannot shew a higher equity. Ib. 16. (Surety.) A surety is entitled to the protection of a court of equity; also sub modo to the benefit of all the securities, which the creditor has. Ib. 17. (Amendments.) In matters of form, or mistakes of dates, or verbal inaccuracies, courts of equity are very indulgent in allowing amendments of answers. Smith v. Babcock, 3 Sumner, 583. 18. (Same.) But they are slow to allow amendments in material facts, or to change essentially the grounds taken in the original answer. Ib. 19. (Same.) Where the object is to let in new facts and defences, wholly dependent upon parol evidence, the reluctance of the court to allow amendments is greatly increased, since it would encourage carelessness and indifference in making answers, and open the door to the introduction of testimony manufactured for the occasion. Ib. 20. (Same.) But where the facts sought to be introduced are written papers or documents, which have been omitted by accident or mistake, there the common reason does not apply in its full force; for such papers and documents cannot be made to speak a different language from that, which originally belonged to them. Ib. 21. (Same.) The whole matter is in the discretion of the court; but, before the amendments to the answer are allowed, the court should be satisfied, that the reasons assigned for the application are cogent and satisfactory; that the mistakes to be corrected, or the facts to be added, are made highly probable, if not certain ; that they are material to the merits of the case in controversy ; that the party has not been guilty of gross negligence; and that the mistakes have been ascertained, and the new facts have come to the knowledge of the party, since the original answer was put in and sworn to. Ib. 22. (Same.) Where a party sought to amend his answer, by showing, that the instrument annexed to the answer was not the original instrument executed at the time of the conveyance, or a copy thereof; but that it varied from that instrument in some important particulars material to the present controver