1790.
Coxe’s claim; which promise was punctually performed at the end of the year from testator’s death, allowed, either by the operation of the law, or prescribed according to the provisions of the will, for the payment of legacies. It appeared, likewise, that on the 26th of April l784, G. Inglis, having bargained for the purchase of certain goods from Reede & Forde, in payment of the value amounting to £112 4s. 6d. executed another assignment to them for the residue of the legacy in question; and, on the 4th of January 1788, Mr. Coxe, by an instrument, reciting the debt originally due to him, the legacy bequeathed to G. Inglis, the first mentioned assignment and the motives on which it was made, the receipt of £37 10s. from the executors, and the residuary assignment last mentioned, transferred the unsatisfied interest in the legacy to Reede & Forde. Mr. Coxe had not however communicated to Reede & Forde the obstacles suggested by the executors, as to the assignment of the legacy, before the execution of the residuary assignment to them; nor, indeed, was there any evidence that they were apprised of that circumstance, ’till they applied to Mr. Coxe to institute the present suit, when he mentioned it to Forde.
But, in opposition to the claim of Reed & Forde, under their assignment, it was shewn, that G. Inglis, was previously indebted to the house of Inglis & Long, in which the testator was concerned, and that he was also considerably indebted in partnership to the house of Willing & Morris, surviving partners of Samuel Inglis. Being, however, at the same time entitled by an article of agreement to a share in the commission, on the assignments of goods from Jamaica to Samuel Inglis & Co. he applied to them in September 1783, for the amount due to him out of that fund; but, at first they refused to pay it to him, in any other way, than by carrying it to the credit of his account; though, afterwards, (in December 1783) on a representation of his distress, as well in conversation as in letters, they advanced him the money. In the letters which he wrote upon the occasion (dated the 20th of October and the 5th of November 1783) he mingled, with the language of misfortune and complaint, an overture of transferring his claim to the legacy in satisfaction of the debt, to Willing & Morris, as surviving partners of Samuel Inglis & Co.; provided his share of the Jamaica commission was paid to him; saying in the first letter “that he would chearfully assign the legacy;” and in the second letter “that he would assign it;” but, neither before nor after the receipt of the commissions, entering into any formal instrument of assignment.
On these facts, the question to be tried was; whether Reede & Forde, or Willing & Morris, were entitled to the balance
due on the legacy? And it was argued by Levy, for the former,