date

26 Apr. 1805 Evidence Ch.1
26 Apr. 1805

Evidence

Ch.1 Ends

'.3. Procedure branches

Particular Ends

Testator[?] is just dead, bequeathing /having bequeathed/ to you by his will, a certain horse now living /feeding/ in a field attached to his house, and having appointed Fiduciarius[?] Executor of such his will. To this horse you have a right, but of what sort? Not a compleat connsummate right; only an inchoate and as yet imperfect one. What you have an immediate right to is the sort of service on the part of Fiduciarius that will be rendered to you by delivering to you the horse, and thereby by enabling you to keep the horse in a field of yours and make such use of him as you may think fit. If without his having rendered to you that service, you were to attempt to take away the horse, he might under the protection of the law, as above make the same resistance to you, as if you were to attempt without his consent to take the value in money out of his purse.

What you have moreover a right to is as before, in the event of his not having delivered over to you the horse before the point of time, before which in virtue of the law relative to Executorship he was /stood/ bound to render you that service, a corresponding service to be rendered to you, as above by the Judge. By Fiduciarius your inchoate right in relation to the horse might and should have been converted /turned/ /compleated/ into a consummate one; he failing, the same conversion may, and at your instance /demand/ Fiduciarius after due opportunity allowed[?] him having no sufficient[?] reason to allege to the contrary &[?] ought to be rendered to you by the Judge.
Similar Items
  • Title: [27 Apr. 1805 Evidence Ch.1]
    Description: 27 Apr. 1805

    Evidence

    Ch.1. Ends

    '.3. Procedure branches

    Particular Ends.

    3. Besides the horse, Testator bequeathed to you a certain share - a fourth part - of the value of his effects not specifically disposed of as the horse was disposed of, directing the aggregate mass of such effects to be sold for the purpose, and the produce so divided. Here comes the mass of services due by Fiduciarius to various persons, yourself being one. On the part of Fiduciarius no reluctance as to the rendering to any one of the persons having right, the services which are his due. But intermixed with the articles which beyond doubt formed so many component parts of the estate of Testator, are some in relation to which Fiduciarius entertains various doubts: - whether they really belonged or not to the estate - which is the properest[?] time for the offering them to sale - which the properest mode. On these several points, It is desirous, partly for the sake of prudential advice partly for the sake of legal authority and security, to have the benefit of a decision from the Judge. In this we see a case in which a like service a service of collation is due to you from the Judge not as before in default of Fiduciarius, but with his consent and his voluntary /not involuntary/ concurrence, though at the instance of some one else.
  • Title: [26 April 1805 Evidence Ch.1]
    Description: 26 April 1805

    Evidence

    Ch.1. Ends

    '.3. Procedure branches -

    Particular Ends.

    Another /You have a right to another/ sum of money, to equal value, is due to you by Titius. But to what is it that in this instance you have a right - understand an immediate right? not to any individual determinate individual piece of money whatsoever: not to a single one of whatever pieces of money that may happen at the present time (not to speak of other times) to be in the purse of Titius. What you have a right to, as yet, and in the first instance is neither more nor less than a right to receive a certain service, to be performed in your behalf /rendered to you/ by Titius: viz: the service consisting in the conferring on you, in relation to any individual pieces of money at his choice, so that /as/ the aggregate of them be of the value in question, the same sort of compleat consummate right which you possess already in relation to the money already in your purse.

    What you have a right to is to return or employ as you might /may/ the money already in your purse, such money if any, as Titius in virtue of the service which by the supposition he is bound to render due, may in discharge of such an obligation, have enabled you to put into your purse.

    What you have moreover a right to is, in the event of his not having as yet rendered to you any such service, it being understood that the point of time is already passed before which he was /stood/ bound to have rendered it, a correspondent service to be rendered to you by the Judge: viz a service consisting in the taking such arrangements as shall have the effect either of compelling Titius to render to you in relation to a number of pieces of money at his choice to the value in question, the service of collation above described, or, at the ultimate expence of Titius (viz: /for example/ by the seizure and sale of goods of his to that amount) causing some other person to render to you that service.

    [Footnote:] If /Let/ Titius have ever so much money in his purse, you can not without committing an offence, so much as take or attempt to take any the smallest part of it.
  • Title: [13 March 1808 Letter V §.6]
    Description: 13 March 1808

    Letter V

    §.6. Reasons

    Ends of Justice

    The good man who had three Sons, Peter, Martin and Jack, and a wardrobe with three coats in it, gave by his will, as every body knows, a coat to each. If, under the terms of the will, one of the coats was by the name and description of the red one, left to Peter, another, in like manner the blue one, to Martin, and the third, the brown one to Jack, the right of each was thus compleat without the Judge. But if, instead of giving to each son his coat outright, the effect of the will was to order that to each should be given a coat to be chosen for him by the Judge, in that case till the Judge had given his decision, no one of the three legatees had a compleat right to any one of the three coats: all the right that any one of them had in the first instance, was a right to a certain service to be rendered to him by the Judge: viz. the service consisting in the investing him with a compleat right to one of the coats at the choice of the Judge himself.

    Whether the good man named an executor, does not appear from the history: for argument sake let us suppose he did. In the first of the above cases, if on Peter's going to the executor and saying - Give me the red coat, it being the one that was left to me, if the Executor had said nay: you shall have ne'er a coat or you shall take up with the blue one, here would have been a wrong, and the Executor the wrong doer. In the other case if, on Peter's going to the executor and demanding the red coat as before, the Executor had said, nay: I can not give you that or any other of the Coats till the Judge has told us which, here could have been no wrong.