Analytical Digest of Cases: Courts of Equity. CREDITOR'S DEED. 223 dren of such sons of the said son and daughA debtor conveyed all his property to trus-ters as should be then dead, were to be entitees for his creditors, in consideration of a tled only to a parent's share, and in case there licence and release granted to him by the should be no child or children of the husband deed, and afterwards died. Seven years after or wife living, at the death of the survivor of his death, a creditor who had notice of the them, then in trust to transfer the fund to the deed shortly after its execution, but did not survivor, his or her executors, &c. execute it, filed a bill to be allowed to execute and to have the benefit of it, but the court dismissed the bill, because the debtor could not have the benefit of the consideration. Lane v. Husband, 14 Sim. 656. Case cited in the judgment: Field v. Lord Donoughmore, 1 Dru. & Warr. 227. DEED, CONSTRUCTION OF There were three children of the marriage, but they all died before either of their parents, two of them left children, some of whom survived both their grandfather and grandmother. Held, that the surviving grandchildren were entitled to the fund. Green v. Bailey, 14 Sim. 635. EXECUTOR. 1. Appropriation of payments.-Feme covert. 1. Liability-Lost debt.-An executor, hav-A. B., a married woman, conveyed her se- ing possessed a promissory note for 4001., parate estate to C. D., in trust to sell, &c., part of the assets of the testator, retained the and pay a debt due to him from her, and fur- note in his possession, without taking any prother advances, not exceeding in the whole ceedings to recover the amount or the interest 400l., and to hold the surplus for her separate for seven years; and at the end of seven years, use. C. D. afterwards made further advances, when the sole residuary legatee came of age, far exceeding the limit, part of which was the executor delivered the note to the resipaid upon bills drawn on him by A. B., with duary legatee. The residuary legatee ten years directions to charge the same to the account of afterwards filed his bill against the executor, her separate estate. Held, that C. D. was not charging him with breaches of trust in the adentitled to appropriate his receipts in the first ministration of the estate. The court, in such place, in payment of the advances not covered dircumstances, refused to charge the executor by the security, the court considering that with the amount of the promissory note, or C. D.'s receipts could not be considered as direct an inquiry whether any loss had resulted indefinite payments, that he had them only for to the estate by reason of the executor not the purpose of paying off the charge, and af- having taken proceedings to enforce payment terwards for A. B.'s separate use, and that of the amount due on the note. upon the true construction of the instruments, C. D. was bound to apply the separate estate which he received in satisfaction of the charge, and could only consider the surplus after such satisfaction as subject to the disposition of C. D. or liable to such ordinary lien as he might acquire by advancing money to her. Smith v. Smith, 9 Beav. 80. In such a case the executor would not be chargeable, unless it should be found that the amount of the note could have been recovered during the seven years between the death of the testator and the time when plaintiff attained his majority; and if it were found that the amount could have been recovered during that time, still the executor would not be 2. Sterling or currency. -Jointure.-Prior chargeable, unless it should be found that the to the passing of the act for assimilating the amount could not have been recovered during currencies of England and Ireland, an English the ten years which elapsed after the note had lady married an Irish gentleman. By their been delivered to the plaintiff. East v. East, settlement. which was executed at Bath, where 5 Hare, 348. the marriage was solemnized, it was recited 2. Costs.-Executors not allowed the costs that the gentleman had agreed to charge cer- of an account which had been successfully tain of his estates in Ireland with the payment brought against them by a surgeon for mediof a rent charge of 1,000l. a year to the lady cines and medical attendance furnished to the for life, in case she should survive him, but testator. Chambers v. Smith, 2 Coll. 742. the sum secured to her by the deed was exSee Partnership, 1; Specific Performance. pressed to be 1,000l. a year, sterling, lawful money of Ireland. Held, nevertheless that she was entitled to a 1,000l. a year sterling. Cope v. Cope, 15 Sim. 118. Case cited in the judgment: Lansdowne v. FORECLOSURE. Mortgage.-Sale of Estate.-After foreclosure, the mortgagee fairly sold the estate for could not afterwards recover from the mortless than what was due to him. Held, that he the amount still remaining unpaid. gagor, upon his collateral personal securities, 3. Children. - A settlement directed the trustees immediately after the decease of the Where a debt is secured by mortgage, covesurvivor of the husband and wife, to transfer nant, and bond, the mortgagee may pursue all the fund unto and amongst all and every the his remedies at the same time. If he obtain sen and sons, daughter and daughters of the full payment on the bond or covenant, the husband and wife, and the children of such mortgagor becomes entitled to the estate; but son and sons, daughter and daughters, in case if he obtain part payment only, he may go on any of them should be dead, leaving issue, with his foreclosure suit, and foreclose for the share and share alike; but the child or chil- remainder. On the other hand, if he foreclose 224 Analytical Digest of Cases: Courts of Equity. corpus. A husband, whose wife had three years before absconded with his infant children, applied for an order that the wife's brother, who had assisted in her escape, and had since transmitted to her the income to which she was entitled under her marriage settlement, of which he was trustee, might either produce the children or disclose the place of their concealment, or at least discontinue the transmission of the income. On an affidavit of the brother, that the children were not in his custody, or under his control, the order was refused. Spence, in re, 2 Phill. 247. Case cited in the judgment: Wellesley, in re, 2 Russ. 1. 2. Marriage. Upon the marriage of a man with an infant ward in court, who was entitled jointly with her sister to real and personal estate held by trustees in undivided moieties, he, with the sanction of the court, covenanted that upon his wife coming of age, her real property should be settled upon himself and herself, and the children of the marriage, with ultimate limitation in default of issue of the marriage to the heirs of the wife; he also settled the personal property in the same manner, except that there was an ultimate limitation in default of issue to the next of kin of the wife. The marriage took effect, the wife attained twenty-one, and about a month after the marriage died, without issue, and without executing a settlement of the real estate, leaving her sister, who was also an infant ward of court, her sole heiress and next of kin. Held, that the surviving sister could not compel a conveyance to herself of her deceased sister's moiety of the real estate, without making compensation to the husband for his loss of that interest in the real estate which he would have taken under the settlement had it been exe cuted by his wife. Savill v. Savill, Young v. Savill, 2 Coll. 721. 3. Maintenance.-Order made for a liberal allowance for the maintenance and education of a female infant, whose father was living, with a view to her being brought up in a manner suitable to her fortunes and expectations. Exparte Williams, 2 Coll. 740. INJUNCTION. Disputed right.-The court will not generally, in doubtful cases, restrain by injunction the infringement of an asserted legal right until its validity has been established by an action at law, but secus where there has been long interrupted enjoyment under a patent, that being regarded as prima facie evidence of title. When the court grants an injunction, the order ought not merely to direct that an action shall forthwith be brought, with liberty to the parties to apply in case of delay, but to give such directions of its own in the first instance as will insure the speedy trial of the action. An injunction granted pending an action to be brought by the plaintiff, for the speedy trial of which special directions were given, was dissolved on the ground of the plaintiff not having duly complied with those directions. Stevens v. Keating, 2 Phill. 333. See Agreement; Jurisdiction, 2. JOINT STOCK COMPANY. Priority of incumbrances.-Notice.-On a question of priority of incumbrances of shares, notice to one of a joint stock company is not notice to the company. A. held shares as trustee, and executed a declaration of trust, but no notice was given at the office of the company. A. afterwards mortgaged his shares to secure his private debt. mortgage was given to the company, and was entered in their books. Held, that the mort gagee had priority over the cestui que trust. Martin v. Sedgwick, 9 Beav. 333. JURISDICTION. Notice of this 1. Heritable bond.-The Court of Chancery has jurisdiction to grant an injunction, at the the obligee under a heritable bond executed by suit of the assignees of a bankrupt, to restrain the bankrupt before his bankruptcy from proceedings in the court of session in Scotland estate in Scotland belonging to the bankrupt to obtain payment of his debt out of a real at the date of the bond, and thereby charged with the debt, but it will not exercise that jurisdiction if the circumstances of the case render its interference unadvisable. Jones v. Geddes, 14 Sim. 606. Chancery has jurisdiction to restrain the India 2. India bonds.-Injunction.-The Court of Company from paying the money secured by obtained possession of them, or to any other their bonds to a person who has wrongfully person than the lawful owner of them. Glasse v. Marshall, 15 Sim. 71. See Charity, 2; Infant, 1. LEASE. Specialty debt.-Rent.-A lessee surrendered his lease and took a new one for a different term and at a different rent, and with different covenants. Held, nevertheless, that the rent accrued under the original lease (the whole of which remained unpaid) was a specialty debt under the covenant for payment of it contained in Analytical Digest of Cases: Courts of Equity. that lease. Greenwood v. Taylor, 14 Sim. 506. See Mortgage, 3; Vendor and Purchaser, 1. LEGACY. 1. Settlement.-A husband had large advances made to him by his wife's father, and had the benefit of a provision made for his wife by her father's will, and afterwards became bankrupt. 225 fact, unexpired at the time of the sale. But a bill by the vendor to make the purchaser a trustee of the term for the twelve additional years was dismissed. Okill v. Whittaker, 2 Phill. 338. MORTGAGE. 1. Ship and cargo.-Commission on sales.A broker having taken an assignment of several cargoes in trust to sell them on their arrival, and out of the proceeds to repay himself the amount of his advances, took possession of some of the cargoes, and sold them under the power in the deed, while the rest were sold under an order made in a suit instituted by him to enforce his security, by which it was directed that they should be sold by him in such manner and at such time as he and the receiver in the cause should agree, and in the event of their differing, then as the Master should direct. Held, that his wife, who had no provision except the income of a fund under her uncle's will, was entitled to have the whole of that Held, that in the latter sales he was entitled income settled on her for life for her separate to the usual commission allowed to brokers use, without power of anticipation. Gardner employed by the court, but that in the former he v. Marshall, 14 Sim. 575. was not entitled to any commission, having Case cited in the judgment: Coster v. sold as trustee. Arnold v. Garner, 2 Phill. 9 Sim, 597. Coster, 2. Reversionary interest.-The tenant for life of a trust fund having consented to surrender her interest to the reversioner, a married woman, and the latter having been examined in court and consenting, the court ordered the fund to be transferred to her husband. Creed v. Perry, 14 Sim. 592. Cases cited in the judgment: Bean v. Sykes, 2 3. A married woman who was entitled to a trust fund in reversion having had the life interest assigned to her, the court ordered the fund to be transferred to her husband, she consenting. Hall v. Hugonin, 14 Sim. 595. 231. 2. Production of documents.-A mortgagee against whom a bill was filed by another mortgagee for redemption and foreclosure admitted the possession of vouchers, consisting of bills he was bound to produce them. Gibson v. of exchange and promissory notes. Held, that Hewitt, 9 Beav. 293. 3. Lease.-Surrender.-Covenant.-A lessee mortgaged the demised premises, and covenanted, for himself and his heirs, with the mortgagee, his executors, administrators, and assigns, to repay the mortgage money. Afterwards, the mortgagee joined with the mortgagor in surrendering the lease, for the purpose of having a new lease granted to the 4. Separate maintenance.-Provision for fu- latter, which they agreed should be assigned ture separation.-Infancy. Whether an ante- to the mortgagee, by way of security for his nuptial contract, whereby the intended hus- principal and interest; and that that arrangeband agreed to secure to the intended wife an ment should not prejudice any other security annuity for her separate maintenance, in the that the mortgagee might have for his debt. event of his death, or any separation taking A new lease was granted to the mortgagor, place between them during their lives, is void; but he did not make any assignment of it in and if not, whether such contract is valid so pursuance of the agreement. After his death, far as it is intended to secure an annuity to the the mortgagee assigned to A. the principal and wife in case of a separation or divorce for any interest due to him and his security for them cause; or whether it is valid to the extent of under the deed of surrender. Held, that the securing the annuity to the wife in case of de- covenant in the mortgage of the original lease sertion by the husband, or divorce without was not extinguished by the surrender, and any misconduct on the part of the wife; or that the assignee was a specialty creditor of the whether it is valid only to the extent of se-mortgagor in respect of it. Greenwood v. curing the annuity to the wife in the event of her surviving the husband-quære. sedge v. Cocksedge, 5 Hare, 397. See Deed, construction of; Trustee, 3. MISTAKE. Cock Taylor, 14 Sim. 505. 4. Re-conveyance.-After action brought by mortgagee (a solicitor) against mortgagor for his bill of costs on effecting the mortgage, and 357. taken out of court in that action by mortRectifying contract after execution.-Pre-gagee in satisfaction of the demand, and after mises were sold for the residue of a term, of which both parties at the time supposed that eight years only were unexpired, and the price was fixed expressly on that supposition. It afterwards appeared that twenty years were, in second action brought between the parties to recover the mortgage money, and costs in that 19. 16s. 4d., mortgagor action taxed at tendered to mortgagee the said sum of 197. 16s. 4d., and 107. for any other costs and 226 Analytical Digest of Cases: Courts of Equity. expences that might be due. Mortgagee, ly, that the property was not within the order however, refused to re-convey because the bill of costs, the subject of the first action, had not been satisfied, and the taxed costs of the second action were only costs as between party and party. Upon a bill filed by mortgagor against mortgagee to compel a re-conveyance Held, that the mortgagee must pay the costs of the suit. Under the circumstances of the case a tender of mortgage money held to be absolute, and not conditional. Semble, that the judge at chambers will not order a re-conveyance of mortgaged premises. Morley v. Bridges, 2 Coll. 621. P. re 5. False recital of prior incumbrance.—Equitable mortgage.-P. being indebted to B. makes a mortgage of an equity of redemption of real estate to B. for the purpose of securing the debt, and by the indenture of mortgage, it was falsely recited that the mortgaged estate was subject to an equitable charge for monies due to I. secured by the deposit of deed. tained the deed in his own possession, and subsequently deposited it with I. as a security for money partly lent to P. by I. before and partly after, the mortgage of the estate to B. I., at the time of the deposit, had no notice of the prior mortgage to B. Held, that inasmuch as an actual prior charge on the estate, if afterwards paid off by P. or otherwise avoided, would have left B. in the position of the first mortgagee of the equity of redemption, the recital of a charge which had, in fact, no existence, could not have the effect of postponing B. That the instrument acquired by I. by the subsequent mortgage by way of deposit could not be enlarged by the effect of the false recital, and was only an interest in the equity of redemption, subject to the mortgage to B.; and that B. in a suit for that purpose was entitled as against I. to the ordinary decree for payment or for foreclosure, and the delivery up of the deed on default. Frazer v. Jones, 5 Hare, 475. See Foreclosure. PARTITION. Commissioners of partition have no power to award sums to be paid for owelty of partition. Mole v. Mansfield, 15 Sim. 41. PARTNERSHIP. 1. Executor.-Lien.-Order and disposition. -A. authorized the sale of his share in a brewery to B., his surviving partner, whom he appointed one of his executors. B. conceiving he had duly become the purchaser, carried on the business till his death, and it was subsequently carried on by C., his executor. Afterwards, upon a bill being filed, the sale was set aside, and the estate of A. became entitled to a share in the profits made subsequent to A.'s death. C. afterwards became bankrupt, having the whole trade property in his possession. Held, first, that the trade creditors during the time the business was carried on by C. had no lien for their debts on A.'s share; and second and disposition of the bankrupt. Stocken v. Dawson, 9 Beav. 239. 2. Covenants.-Premises were demised to A. and B., who were co-partners, upon which they carried on their partnership business. A. died during the lease, and after his death his executors carried on the business in co-partnership with B. on the premises. Held, nevertheless, that the covenants in the lease, which were joint only, were not to be considered as several as well as joint, so as to make A.'s estate liable for breaches of the covenants which occurred after his death. Clarke v. Bickers,, 14 Sim. 639. Case cited in the judgment: Sumner v. Powell, 2 Mer. 30; Turn, & Russ. 423. and C. was communicated by one of the parties 3. Agreement.-An agreement between B. the signature of the other parties to a memoto A., after applications in writing from A. for randum expressing his interest as a partner in the transaction relating to the land, the subthe agreement so communicated must be taken, ject of the agreement, and the court held, that not as an original proposal, but as an acknowledgment of a pre-existing right in A.; and that 4. might avail himself of the acknowledg B. and C., was res inter alios acta, and notwithment, notwithstanding the agreement between standing A. objected to some of the terms in that agreement, as not truly expressing his Dale v. Hamilton, 5 partnership contract. Hare, 392. Case cited in the judgment: Garrard v. Lord Lauderdale, 3 Sim. 1. PRINCIPAL AND AGENT. Factor-Account.-Fraudulent accounts between principal and factor opened from the beginning, the court holding that the relief ought not under such circumstances to be limited to a right to a surcharge and falsify. A factor hav Amongst the most important duties of a factor are those which require him to allow his principal the free and unbiassed use of his own discretion and judgment, to keep and render just and true accounts, and to keep the property of his principal unmixed with his own or the property of others. ing violated all these and other duties, held, that no credit was due to his accounts, and that the principal was not bound by them. A. B., being in embarrassed circumstances, conveyed property to trustees, to sell and pay his creditors (parties thereto) in proportion. 4. B. afterwards instituted a suit against one of such creditors, for the purpose of taking the accounts of such creditors and to cut down the estimated amount of his debt. The other creditors were served by copy of bill. Held, that as the other creditors were bound by the proceedings, the suit was not imperfect for want of parties, and a decree was made without prejudice to the right of the other creditors, to any sum which the plaintiff might recover on taking the accounts. Clarke v. Tipping, 9 Beav. 284. 1 Analytical Digest of Cases: Courts of Equity. PRIORITY OF INCUMBRANCES. See Joint Stock Company; Mortgage, 5. See Trustee, 3. RECEIVER. REVERSION. See Married Woman, 2, 3. See Mortgage, 1. SHIP. SPECIFIC PERFORMANCE. 227 2. Breach.-Duty of cestuis que trustWhen one of several cestuis que trust înstitutes a suit for relief in respect of a breach of trust, he is bound in the conduct of the suit to take care of the interests of the others as well as of his own. Williams v. Powell, 2 Phill. 329. 3, Receiver.-Husband and wife.-A husband contracted for the lease of some premises, and he afterwards induced the trustees of his marriage settlement, who held monies for the separate use of his wife, without power Indemnity. Executor of Vendor.-A., B., of anticipation, to act in breach of their trust, and C., possessed of a manor under an eccle- and to purchase the property. The property siastical lease, agreed with M. to grant him was conveyed to the trustees, and by a deed upon the expiration of a subsisting grant, a executed by the husband and wife, it was decopy of court-roll of a tenement holden of the clared that it should be held for their indemmanor, and entered into a joint and several nity and on the trusts of the settlement. The bond to perform the contract. A. afterwards husband laid out very considerable sums of conveyed his interest in the manor to B., money in building and repairs, and with consubject to the agreement with M., and died, sent of the wife, was permitted to receive the having appointed the plaintiff his executor. rents. After some years disputes arose ; The validity of the lease constituting the title the trustees insisted on receiving the rents, of B. and C. to the manor, was subsequently and proceeded at law to enforce their rights; impeached, and pending the trial of their whereupon the husband filed a bill against the right to the manor, they were unable to grant trustees and his wife, claiming a lease under a copy of court-roll according to the agree- the agreement, and asking for a sale of the ment. M. thereupon brought three several property, and for the application of the proactions upon the bond against the plaintiffs B. duce, first in replacement of the trust funds, and C. respectively. The plaintiffs B. and C. and afterwards in reimbursing the plaintiff his entered into a consolidation rule, whereby they outlay. A motion for a receiver was refused, consented to be bound by the verdict in one of with costs. Wiles v. Cooper, 9 Beav. 294. the actions. The plaintiff then filed his bill against B., C., and M., for a specific performance of the contract by B. and C., and to restrain the action brought by M. Held, that the question as against M. was the same both at law and in equity, and that after having con5. Chose in action.-Order and disposition. sented to be bound by the verdict in the action,-Notice. A trustee, for sale of testator's the plaintiff could not sustain the suit, and the bill was dismissed without prejudice to any question of contribution or indemnity, as between the plaintiff B. and C., the obligors on bond. Hall v. Pearse, 5 Hare, 408. TRUSTEE. 1. Liability for reserving insufficient rent.Fraud-Neglect of duty.-A bill founded on an imputation of fraud and personal corruption will not warrant an inquiry on that case being disproved, whether there has not been neglect or an omission of duty. 4. Power to appoint new.-The court, in decreeing the appointment of new trustees, will not direct a power to be inserted in the deed for appointing new trustees toties quoties. Bowles v. Weeks, 14 Sim. 591. estates, sold part of them, and paid the proceeds into court. A party entitled to a share of the testator's property assigned his interest to S. by way of mortgage, and S. gave notice of the assignment to the trustee, but did not obtain a stop order. The remainder of the estates was afterwards sold, and the proceeds paid into court under the decree in the suit. Subsequently the assignor took the benefit of the Insolvent Debtors' Act. Held, that the notice given to the trustee was sufficient to take the assigned share out of the order and disposition of the assignor. Matthews v. Gabb, 15 Sim. 51. A trustee letting a farm originally at a proper rent will not be held personally liable for 6. Voluntary transfer of stock.-Parent and the difference between that rent and the child.-4. directed his agents to invest part of rent which at a subsequent period of the his balance in their hands in the purchase of tenancy might have been obtained, merely be- 4000. stock in the names of himself and his cause he neglected to give notice to quit a few wife in trust for his infant son. The agents months after there appeared a probability that made the purchase in the joint names, but the price of agricultural produce would en- without any trust expressed, because, as they able him with propriety, as between landlord afterwards informed 4., the bank objected to and tenant, to obtain a higher rent. trust accounts appearing on their books. A. allowed the stock to remain without any trust being declared, and received the dividends of it down to his decease. Held, that neither his son nor his wife (who survived him) were entitled to the stock, but that it formed part of his assets. Smith v. Warde, 15 Sim. 56. And semble, that rule would be applicable even to a case in which the tenant was a near relation of the trustee, unless there were some other circumstances to confirm the suspicion of personal favour, which that relationship is calculated to excite. Ferraby v. Hobson, 2 Phill. 255. |