whom, or by what authority, or for what purpose or destination, and on whose account were they put on board?
32d Interrogate. What is the whole which you know or believe, according to the best of your knowledge and belief, regarding the real and true property and destination of the ship and cargo, concerning which you are now examined, at the time of the capture?
Form of the Oath to be administered to each witness.
You shall true answer make to all such questions as shall be asked of you on these interrogatories; and therein you shall speak the truth, the whole truth, and nothing but the truth. So help you God.
1. H., in contemplation of marriage with B., gave a bond for 5,000 dol- lars, and interest, to trustees, to se- cure to B. a support during the marriage, and after the death of H., in case she should survive him, and to their child or children, in case he should survive her; with condition that if H. should, within the time of his life, or within one year after the marriage, whichso- ever of the said terms should first expire,) convey to the trustees some good estate, real or personal, sufficient to secure the annual pay- ment of 300 dollars, for the sepa rate use of his wife during the mar- riage, and also sufficient to secure the payment of the said 5,000 dol- lars to her use in case she should survive her husband, to be paid within six months after his death; and in case of her death before her husband, to be paid to their child or children; or if H. should die before B., and by his will should, within a year from its date, make such devises and bequests as should be adequate to these provisions, then the bond to be void. H. died, leaving his widow B. and a son, having, by his last will, devised a tract of 1,000 acres of land, in the Mississippi Territory, to his son in fee; a tract of 10,000 acres in Kentucky, equally between his wife and son, with a devise over to her, in fee, of the son's moiety, if he died before he attained "the law- ful age to will it away." And the residue of his estate, real and per- sonal, to be divided equally between his wife and son with the same con- tingent devise over to her as with regard to the tract of 10,000 acres. The value of the property thus de-
vised to her, beside the contingent interest, might have been estima- ted, at the time of H.'s death, at 10,000 dollars. B. subsequently di- ed. having made a nuncupative will, by which she devised all her estate, “whether vested in her by the will of her deceased husband or otherwise," to be divided be tween her son and the plaintiff in the cause, with a contingent devise of the whole to the survivor. The son afterwards died, and the plain- tiff brought his bill to charge the lands of H. with the payment of the bond for 5,000 dollars and in- terest, to which the plaintiff deri- ved his right under the nuncupa- tive will of R. By the laws of Ken- tucky this will did not pass the real estate of the testator, but was suffi- cient to pass her personal estate, including the bond. Held, that the provision in the will of H. for his wife, must be taken in satisfaction of the bond, but subject to her liber- ty to elect under the will and the bond, and that this privilege was extended to her devisee, the plain- tiff. Hunter et al. v. Bryant, 32 2. Actual maintenance is equivalent to the payment of a sum secured for separate maintenance, and, there- fore, interest upon the bond during the husband's life-time, was not al- lowed. Ib.
3. Under all the circumstances of the case it was determined that the bond was chargeable on the resi- due of the estate, and of this, the personality first in order. Ib. 41 It is a universal rule of equity, that he who asks for a specific perform- ance, must be in a condition to per- form himself. Therefore, in a suit for the specific performance of a contract, by conveying lands in Ohio, stipulated to be conveyed as the consideration for other lands sold in Kentucky, it was held that the vendor, being unable to make a title free from incumbrances to the landis sold in Kentucky, was not entitled to a decree for a specific performance. Morgan's heirs v. Morgan, 290
forcing of specific performance. Ib. See EMBARGO, 8.
10. In what cases the court will direct an issue of quantum damnificatus, or a reference to the master to as- certain the damages, where a spe- cific performance is refused, but the 1. party is entitled to damages. Ib. note d, 11. In order to obtain a specific per- formance of a contract, its terms should be so precise as that neither party can reasonably misunder- stand them. If the contract be vague and uncertain, or the evi- dence to establish it be insufficient, a court of equity will not enforce it, but will leave the party to his le- gal remedy. Colson v. Thompson,
12. The plaintiff, who seeks for a spe- cific performance of an agreement, must show that he has performed, or offered to perform, on his part, the acts which formed the conside- ration of the alleged undertaking, on the part of the defendant. Ib. 342 13. Cases where a court of equity will not decree the specific perform- ance of agreements for want of cer- tainty. Ïb. note a, 341 14. The court will, if practicable, exe- cute an uncertain agreement by rendering it certain. Ib. note a,
15. Where all the property of the late bank of the United States had been assigned, by a general assignment
A trustee is, in general, only suable in equity; but if he chooses to bind himself by a personal covenant, he is liable at law for a breach of that Covenant, although he describe himself as covenanting as trustee. Duvall v. Craig et al. 45.56 2. Where the parties to a deed cove- nanted severally against their own acts and incumbrances, and also to warrant and defend against their own acts, and those of all other per- sons, with an indemnity in lands of an equivalent value in case of evic- tion; it was held that these cove- nants were independent, and that it was unnecessary to allege in the de- claration any eviction, or any de mand or refusal to indemnify with other lands, but that it was suffi- cient to allege a prior incumbrance by the acts of the grantors, &c., and that the action might be maintained on the first covenant, in order to re- cover pecuniary damages. Ib. 58 3. Where the grantors covenant gene- rally against incumbrances made by them, it may be construed as ex- tending to several, as well as joint incumbrances. Ib.
59 4. An averment of an eviction under an elder title is not always neces- sary to sustain an action on a cove- nant against incumbrances; if the grantee be unable to obtain posses- sion in consequence of an existing
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