1838. In re SAMMON. an account has been ordered before the Master. By the Exch of Pleas, 36 Geo. 3, c. 52, s. 25, it is enacted "that if any suit shall be instituted concerning the administration of the personal estate of any person dying testate or intestate, or any part of such estate, in which any direction shall be given touching the payment of any legacies or legacy of such person, or the residue of his or her personal estate, or any part thereof, the Court wherein such suit shall be instituted shall, in giving directions concerning the same, provide for the due payment of the duties hereby imposed, and in taking any account of any personal estate, or otherwise acting concerning the same, such Court shall take care that no allowance shall be made in respect of any legacy, or part of legacy, or of any residue or part of residue, in any manner whatsoever, without due proof of the payment of the duties hereby imposed." The legislature, therefore, seems to have contemplated the case of the administration of funds under a court of equity, and to have made provision with regard to the duties in that case; and it is well known in practice that the Accountant General will not pay money to any party till the legacy duty receipt is produced to him. The testatrix has here given legacies to certain charitable institutions, and she directs by the will that they shall be paid out of property wholly personal, which, it is apprehended, a court of equity will determine to be property not savouring of realty, such as bonds or mortgages. [The Attorney General. The crown does not pray that the duties shall be paid upon those legacies. Parke, B. (to the AttorneyGeneral).—You call upon them for an account of the duty upon the legacies which they have paid, not waiting for the final decree in the court of equity, for which you may wait for some time. You wish simply to have an account of the legacies which they have paid. The Crown cannot wait until the determination of a Chancery suit. The clause in the 36 Geo. 3, c. 52, does not supersede any 1838. In re SAMMON. Exch. of Pleas, clause in the 42 Geo. 3, c. 99, which gives the Court power to compel the executors to deliver an account—a more summary mode.] There is here a bequest of leasehold property. [Parke, B.-With respect to that, there is a disputable fact, whether that legacy has been paid, discharged, or satisfied, within the meaning of the act which imposes a duty upon that taking place.] That is under the consideration of the Court of Chancery, and forms a portion of the subject of litigation in the suit. Then, with respect to the 2007., it is distinctly sworn that the executors have paid, in discharge of debts due from the testatrix, and in discharge of legacies, upwards of 3007. beyond what they have received from the personal estate of the testatrix. The consequence is, that if there were 2007. claimed, and they have paid more than 300l. beyond what they have received from the personal estate of the testatrix, they would be entitled to a return of the legacy duty; and that being so, the Court would not, in the exercise of its discretion, order an account to be delivered. [Parke, B. The executors ought to have deducted the legacy duty when they paid the legacy. There is no inconvenience in calling upon the executors to account upon oath.] But, until the decree of the Court of Equity is pronounced, it is submitted that the Court will not order an account. PARKE, B.-This proceeding is collateral to the suit in equity, because all the Crown wants is, not a final account of the estate and effects of the testatrix, but that they should account for the legacies which they have paid. It was the duty of the executors to deduct the legacy duty when they paid the legacy, and if they did not do so, they are made personally responsible. All the Crown wants is an account of what legacies they have paid, and upon these they are bound to pay the duty. That is a different account from the final account of the estate and effects. If what has occurred is equivalent to the satisfaction of the legacy to 1838. Mrs. Badcock, there is a reasonable probability of the Exch. of Pleas, executors having to account for some portion of duty. Rule absolute, (with costs, if any duties should be found due to the Crown (a)). (a) See In re Moses Robinson, 2 M. & W. 407. In re SAMMON. on the 19th April, 1836, entered into a written contract to build, for the sum of 1,700%., a brewery for so far as regarded the car the defendants, penters' work, within the space of four HOLME and Another v. GUPPY and Another. ASSUMPSIT for work and labour, money paid, and The plaintiffs, on an account stated. The defendants pleaded, first, as to all except 2087. 18s. 4d., non assumpserunt; secondly, as to 2007., other than the 2087. 18s. 4d., actionem non, because the work and labour was done under an agreement, by which the plaintiffs agreed, in consideration of 1,7007., to build, within four months and a half after the date of the agreement, a brewery for the defendants; and in case of default of the plaintiffs in completing the same, they were to forfeit 401. per week for each week the carpenters' and joiners' work was delayed beyond the time specified, the sum forfeited to be deducted from the said sum of 1,7007., as and for liquidated damages. That the carpenters' and joiners' work was not completed within the time agreed, but was delayed for five weeks beyond that time, and that the defendants were entitled to deduct the said sum of 2001. accordingly. The defendants pleaded, each week that thirdly, payment into Court of the 2087. 18s. 4d. months and a within the time limited, to for feit to the de fendants 40%. per week for the completion of the work should be de The cause came on to be tried before Coltman, J., at layed beyond the 31st August, the amount to be deducted from the said sum of 1,7007., as liquidated damages. The plaintiffs did not begin the work for four weeks after the date of the agreement, in consequence of the defendants not being able to give them possession; they were afterwards delayed one week by the default of their own workmen, and four weeks by the default of the masons, &c. employed by the defendants; and the work was not completed till five weeks after the time limited:-Held, that the defendants were not entitled to deduct from the 1,7004. any sum in respect of the delay, either for the one or the four weeks. 1838. HOLME บ. GUPPY. Exch. of Pleas, the Liverpool Summer Assizes, 1837, when it appeared that the work was done under a written contract, dated the 19th of April, 1836, whereby the plaintiff, in consideration of 1,700l. to be paid to them by the defendants, agreed that they, the plaintiffs, should within the space of four and a half months next ensuing the date thereof, erect and build for the defendants, in a substantial and workmanlike manner, a brewery, &c., on the east side of Kent-street, Liverpool, so far as respected the carpenters' and joiners' work thereof. And in default of the plaintiffs completing the same at the time thereinbefore mentioned, then they should forfeit and pay to the defendants the sum of 40%. per week, for each week the completion of the carpenters' and joiners' work might be delayed beyond the said 31st day of August, 1836; the amount to be deducted from the said sum of 1,7007., as and for liquidated damages. After the evidence for the plaintiff had been gone through, it was agreed between the parties, that in consequence of the defendants not being in a condition to give possession till four weeks after the execution of the contract, the contract could not be completed within the time agreed upon; and that of the time which elapsed before the contract was completed, the lapse of one week was occasioned by the default of the plaintiffs, and of four weeks by the default of the masons in the employ of the defendants, who had not got the building ready. A verdict was thereupon taken for the plaintiffs for 2007., leave being reserved to the defendants to move to reduce the damages to the sum of 160l., or to enter a nonsuit. Alexander having accordingly obtained a rule nisi to reduce the damages (a), (a) The Court refused the rule for a nonsuit, on the ground that it could not have been the intention of the parties that a deduc 1838. HOLME V. GUPPY. Cresswell and Crompton now shewed cause, and con- Exch. of Pleas, tended that the original contract of the plaintiffs clearly was, to complete the work within the specified four months and a half next following the date of the agreement; and that inasmuch as they were excused in law from the performance of that specific contract, by reason of the defendants having prevented the commencement of the work in due time, they were not liable to forfeit any penalty at all for its non-completion. Alexander having been heard in support of his rule, The COURT took time to consider, and a few days afterwards, PARKE, B. (having stated the facts) said :-On looking into the facts of the case, we think no deduction ought to be allowed to the defendants. It is clear, from the terms of the agreement, that the plaintiffs undertake that they will complete the work in a given four months and a half; and the particular time is extremely material, because they probably would not have entered into the contract unless they had had those four months and a half, within which they could work a greater number of hours a day. Then it appears that they were disabled by the act of the defendants from the performance of that contract; and there are clear authorities, that if the party be prevented, by the refusal of the other contracting party, from completing the contract within the time limited, he is not liable in law for the default (a). It is clear, therefore, that the plaintiffs were excused from performing the agreement contained in the original contract; and tion should be made in respect of a delay occasioned by the defendants' own agents; and therefore, notwithstanding the apparently unqualified words of the clause, the four weeks' delay, at all events, (a) 1 Roll. Abr. 543; Com. Dig. |