Martinsburgh gazette. [volume] (Martinsburgh, Va. [W. Va.]) 1810-1825, 1824-02-05

selves OF this more efficient mode OF
preparation for the bar, they are re-
spectfully invited TO do so. A note ad-
dressed to the clerk of the court, viii
be attended to. A correct moral cha
racter, upright and firm principles, and
devotedness to the profession, are pre-
requisites for admission TO the bar OF
this court
By order # the Moot Court.
REPORT No. L. Harvey VS.. Psnross,
Action of Eject brought by the
plaintiff against Richard Psnrsse for
purchase aionev paid by the said PEN
rose to the trustee of certain lands de-
vised to John Fortescue in trust, to
lease, sell, or mortgage for the benefit
Of the plaintiff. Fortescue having sold
the land to the defendant, fraudulently
converted the money to his own use
Council for the plaintiIr-Fhe pur-
chaser in this, as in many other cases is
bound to see, that The purchase money is
appropriated according to the declaration
Of The trust or mortgage. LIST. !, In the
case of Hobbs VS. Norton /, sern. IS6,
the following rule is plainly laid down.
at is principle in equity that of two
persons, one of whom, has been guilty of
neglect, and the other has not, there
must be sufferer, the loss must fall up
on him from whose omission. The mischief
arises" The plaintiff cannot be char
ged with neglect or omission, since he
was no more privy TO the sale than any
other third person. But the defendant
ought to have examined the records of
the court for the nature and validity OF
the title vested in the trustee .. lord
Mansfield, in his very distinguished ar
gumeAt on the case. OF Burgess VS..
Wheaton, observes, that the cestai que
trustsis actually and Absolutely seized of
the freehold, IL the consideration of
court Of equity: 4 hat the trust is the
land in that court, and that the. declara-
ton of the trust is the disposition ofthe
landn Whence then does the trustee
derive any po,eer to dispose of the land
contrary to the declaration of the trust'
1t cannot be bona fie sale unless the
purchase money is applyed to the bene-
fit of the cestay que use. For in this
case the trustee is mere conduit pipe,
otherwise the doctrine of Lord Mans
field holds not good. 8. If trust be
raised upon real estate for the payment
Of debts all the books agree Elliot VS..
Merriman, Vern. SOL, Culpeppcr VS.
Aston, Chan. Cases, ! Is, 22l, sc. SC.
That if the debts are spseiitsder scheduled
the purchaser is bound 10 see to thu. appii-
cat,on Of the purchase money Legacies
from their very nature must be conside-
| red scheduled dehts, Buffers Coke 900,
r. 70. Therefore as the trust in this case
was devised by the plaintiffs father. it
is legacy, and the rule applies forcibiy
to the point in question. 4. Another
principle proceeding from tho same,
high authority, Lord Mansfield, is that
where one of two innocent persons must
be loser; Qan prior est tempore, prior
est jurc. Can the cestuy que use, be
otherwise than inne CEN, who is mere
third person in the transactions? Even
supposing then that the purchaser was
| equally innocent of any lache, the rule
prefers the claim of the ces,ui que use.
The council for the plaintiff. then Cir
ted the case of Dust vs.. Conrod, Nun
ford's Reports, vol. 5th, argued in the
Court Of Appeals in Virginia, where the
same doctrines are. expressly set forth,
and Judgment awarded for the plaintiff.
The council for the defendant made
| an ingenious elliott to defend his clients
cause, by applying. a rule of the com
mon law, respecting the execution of
uses, which was judged irrelevant to
| to the case in point
Judgment for the plaintiff