V. C. LORD CRANWORTH'S COURT. V. C. LORD CRANWORTH'S COURT. V. C. LORD CRANWORTH'S COURT. This was a motion on behalf of Mr. Upfill, who agent of Mrs. Kemp that no annoyance should arise to her from the young ladies, and that the writer had been declared by the Master to be a contribuwould enter into any arrangements that she could to tory to the liabilities of this company (and the deciprevent Mrs. K. from being in any way disturbed. sion of the House of Lords in whose case has That the number of pupils was small, and the plans caused so much discussion); that the order, direcwere all conducted with the greatest order and regu- tion, or certificate of Master Brougham in this matlarity, quite as much as a private family could be." ter, dated the 20th Dec. 1850, whereby he had The plaintiff by her bill charged that the keeping ordered or directed that a call of 21. 12s. 6d. per such school would be a great annoyance, and a share should be made upon the said Mr. Upfill as a serious injury to her said house, and would consi- contributory of the said company, might be dis derably lessen its value. The affidavits in opposition charged or varied, and for payment of the costs by to the motion admitted generally these statements. the official manager out of the estate of the said From them it appeared that T. Read Kemp, esq. company. At the meeting before the Master on had become the owner of the land upon which the said 20th Dec. 1850, he made the following report: houses of Kemp Town had been built; and although "Re Direct Birmingham, Oxford, Reading, and in his dealings with persons who had purchased the Brighton Railway Company. I, William Brougham, land and built houses thereon, he had taken from Esq. the Master of the High Court of Chancery, them similar covenants as the one in the present case, charged with the winding-up of this company, do yet he having lived himself in this particular house, peremptorily order that a call of 21. 12s. 6d. per quitted it in 1838, and then let both these houses to share be made on the following contributories one Mrs. Everard, who used and occupied the same for of this company, in Class No. 1, Part No. 1, and several years as a school for boys. Numerous houses numbered as follows:-1. Wm. Aumsinch; 2. Alex. in Kemp Town had also been used as schools and Andrew; 3. Admiral Lyscough; 5. H. S. Bright; no interference had been made by Mr. T. R. Kemp 8. John Bond; 13. Wm. Cooper; 15. John H. Cottle; 16. W. H. Cooper; 21. John Griffith Frith; in his lifetime. 26. Thos. Gates Hunt; 28. Rev. T. R. Hall; 37. Sir Wm. Ogilvie; 31. Sir Wm. Lowthrop; 32. Wm. Kirkpatrick; 43. Edw. Smith, R. N.; 46. James Upfill, and Richd. Fallows Walond; No. 44, in Class No. 1, Part No. 2. And I do peremptorily order each contributory, on the 15th day of January, 1851, at eleven o'clock in the forenoon, at No. 46, Moorgate-street, in the city of London, to pay to the official manager of this company the balance, if any, which shall be due from him, after debiting his account in the company's books with such call. chaser, and Stevens says what amounts to this, "I redeem. Usual decree for redemption, with direc- Tuesday, May 13. A covenant contained the words, "that the lessee Temple and J. H. Tayler, in support of the application for the injunction, contended that keeping a school was a clear breach of the covenant. That the keeping a school was a calling, within the restrictive words of that covenant; and although other houses in Kemp Town might have been used for similar purposes, the plaintiff had a strict right to the benefit of this covenant. (Doe dem. Bish v. Keating, 1 Mau. & S. 95.) Willcock, for the defendants, Wilmshurst, said that the mother, Mrs. W. had no interest whatever in the question, only living with her daughter, and that the covenant was only a qualified one, and the scope of it was to prevent any trade or business being carried on on the premises. He cited Moxhay v. Tulke, 2 Phil. 774. Temple, in reply, said that the word "calling" in the covenant was as strong as if the word "school" had been therein inserted, and that there was clearly no waiver of the exigency of the covenant, by what the original owner had thought proper to permit. JUDGMENT. "W. BROUGHAM." Rolt and Daniel, in support of the application, contended generally, that the Master under the statutes had no authority to make any call until it was first known in what capacities and for what amounts the contributory could be said to be a debtor, or contributory to the association or com> pany. Bethell and Roxburgh, for the official manager, in support of the Master's order for a call. Rolt in reply. The VICE-CHANCELLOR took time to consider his decision, and on the 28th of May gave JUDGMENT. The VICE-CHANCELLOR, after referring to the 83rd sect. of the Winding-up Act of 1848, and the 28th sect. of the one of 1849 (a), said that in his opinion the scope of the Acts of Parliament was not to give authority to the Master to make a call on the contributories before it was well ascertained and defined in respect of which debts in particular the individual contributories had made themselves liable. The Master had absolute power to make a call on any contributories to the full extent of the amount to which the contributory might be made liable at (a) Sect. 83 of the Winding-up Act, 1848: "And be it enacted, that at any time before the whole of the assets of such company shall have been collected or converted, and if the assets remaining to be collected or converted shall not be capable of being immediately realised, although such assets may not appear to be insufficient, and also after the assets of the company shall have been wholly exhausted, it shall be lawful for the Master from time to time to make calls on the contributories, or on such individual contributories or classes of contributories as he may think proper (but so far only as such contributories respectively shall be liable at law or in equity to pay the same), as well as for raising such amount as may be necessary to pay the debts or liabilities, or any of the debts or liabilities of such company, or any part thereof, or the costs, charges, and expenses of winding up the same, as also for the purpose of adjusting and settling the respective claims of contribu tories upon each other, or upon the company, whether such claims shall have arisen since or before the date of the petition for dissolution and winding up, or for winding up, as the case may be, and the amount to be raised by means of such cases, and also the residue of the assets and. estate of the company, after the payment of all debts and liabilities, costs, charges, and expenses shall be paid and distributed by the official manager, under the directions of the Master, so and in such manner as shall (as far as possible) satisfy all such claims, and shall finally wind up and settle the affairs of the company." may here be observed, that the 84th section of this Act required the Master to apportion the amount of call according to the liabilities of the several contributories; this was repealed by the Winding-up Act of the following year, the 28th section of which is as follows:-"And be it enacted,. The VICE-CHANCELLOR said- The only doubt he had, was whether the carrying on a school was an This was a motion for an injunction to restrain the infringement of the covenant. He then read the covedefendant from carrying on, or permitting, or suffer- nant. He thought, under these words, there clearly ing a school to be carried on, at No. 23, Sussex-was a breach of the covenant, by the contemplated square, Kemp Town, Brighton, or from using the keeping of a school, which was not denied. That the said house and premises in any manner, contrary to interpretation put upon the words of the covenant by the covenant after-mentioned; and also from grant- the plaintiff's counsel was the right one; that it must ing an under-lease to some other defendants, who be considered that the keeping of a school, whether had entered into an agreement for that purpose. for boys or girls, was a calling within the terms of the From the bill it appeared that Mrs. F. M. Kemp, in covenant. That the case in M. & S. 95, was a clear 1847, was seised in fee of two houses in Sussex- authority for so holding. As to the annoyance, the square, numbered 22 and 23, and by an indenture Court could not speculate upon what would be the of 28th Dec. 1847, between Mrs. Kemp and the de- amount of the annoyance,-it was sufficient that from fendant Mrs. Sober, these houses were conveyed the nature of the calling, it might create it. That absolutely to the defendant, Mrs. Sober. By an this case was wholly distinguished from the British indenture of the same date, Mrs. Sober entered into Museum case, as in that case the Duke of Bedford a covenant with the plaintiff, which stipulated had himself completely altered the state of the land amongst other things, that the said Ann Sober, from the time when the covenants in that case were her heirs or assigns, would not at any time there-entered into. Upon the whole, he was of opinion after alter, or suffer to be altered, the then present that the plaintiff was entitled to the relief which she elevation of the said messuage or tenement (being sought, and that she was entitled to her injunction. No. 23), or put, or suffer to be put, any shop window As against the defendants, the Wilmshursts, the in any part of the said messuage or tenement, or motion must be refused, and no interference was to carry on any trade, business, or calling whatsoever take place with her keeping a school until Christmas in or upon any part of the said hereditaments and next, if she thought proper to do so. The costs gene-that so much of the said recited Act as is contained in the premises thereinbefore described, or otherwise use, rally to be reserved. or suffer the same to be used, to the annoyance, nuisance, or injury of any of the houses at Kemp Town aforesaid."' And it was declared that such Covenant should run with the land, &c. Mrs. Sober was still the owner of this house, and in January last the plaintiff first discovered that she had agreed to grant a lease of this house to two ladies of the name of Wilmshurst (mother and daughter), for the purpose of a school for ladies. The plaintiff finding this, gave notice to these ladies that such a school could not be permitted to be carried on, as being contrary to the covenant. In reply, a letter was written by the daughter, which stated that" she thought she should be able to satisfy the Order accordingly. May 2, 5, and 28. Re JOINT STOCK COMPANY WINDING-UP ACTS, Winding-up Acts-Contributory-Call. It section thereof, numbered 84 in the copy of the said Act, printed by the Queen's printer, shall be and the same is hereby repealed, and in lieu thereof that when the Master shall think proper to raise any money by means of a call, he shall make such call from time to time upon the contributories of the company, or any of them, appearing for the time being on the list of contributories, although it may then be under consideration, or uncertain whether other persons ought or ought not to be included in the list; and fix such an amount per share for the same as shall in his judgment be likely to supply and bring in the whole sum for the time being intended to be raised, after taking into consideration the probability that some of the contributories upon whom the same call shall be made, should partly or wholly fail to pay their respective proportions of The Master has not authority, under the Winding-in making any such call it shall be lawful for the Master to the same." V. C. TURNER'S COURT. law, in addition to the costs. But the Legislature never could have intended to allow the Master to make a party liable for what he would not be liable at law. His lordship said he would be anxious to torture the meaning of the Act as far as possible to prevent such injustice, but he did not think this was at all necessary, since the 83rd section of the first Act authorised the calls, and indeed the right to make the calls, so far only as the liability at law or in equity extended in respect of the debts of the company-any other construction would be a gross injustice. It might perchance happen, that if a contributory knew in respect of what debt he was liable, he might elect to pay off that debt, to spare himself from further litigation and trouble. He must, therefore, discharge the Master's certificate or order directing a call. The Vice-Chancellor was at first disposed to add thereto a declaration that no call ought to be made by the Master on any contributory found to be such unless it was first ascertained in respect of what debt or debts the contributory had become liable; but on the suggestion of Mr. Bethell, for the official manager, that a declaration of the Court could not be correctly made on a motion of this nature, he directed that the declaration which he had proposed to be added to the order should be considered as his reasons for the decision at which he had arrived. Order to discharge the Master's order directing a call on Mr. Upfill as contributory. Costs out of the estate of the Company. “VICE-CHANCELLOR TURNER'S COURT. Reported by J. HENRY COOKE, Esq. Barrister-at-Law. Wednesday, April 23. Breach of trust-Suit by next friend-Motion to dismiss Rights of fathers of infants-Suit by "claims Trustees Relief Act. V. C. TURNER'S - COURT. Smallwood, who had become bankrupt, lived apart Rolt and Cole, for the motion, argued that under Bethel and Kinglake opposed the motion on the ground that the father was the most proper person to protect the interests of his infant children, and he had only consented to forego his right and duty on the advice of counsel, and the suit was instituted bona fide, and with a view to the interests of the infants. (Stevens v. Stevens, 6 Madd. 97; and Sale v. Sale, 6 Beav. 586 were cited.) Rolt replied. A motion was made to dismiss a bill, which had V. C. TURNER'S COURT. cesses might have afforded adequate protection; bat it is quite in the power of the Court to judge of those questions at the hearing of the cause. If it should think at the hearing, that a claim, instead of a bill, would have been effectual for the purpose, the Court may, under the orders, if I recollect them rightly, prevent costs being allowed out of the estate beyond those which would have been incident to a claim. I say again, the Court may consider whether the costs shall come out of the estate, with reference to to the consideration that the trustees might have been applied to to bring the fund into court under the Trustee Relief Act. Now, has there been bong fides on the part of the father in the institution of this suit? One circumstance very much struck my mind, which has not been particularly commented upon, namely, that in the instructions laid before counsel for filing this bill, those instructions were, that the father should be named as next friend. It is impossible to say he did not intend bond fide to act for the benefit of the infants in the institution of the suit, when he himself was to be named as next friend, subject to all the liabilities and consequences to arise out of the institution of the suit. I think, therefore, so far as relates to general principle, there is no ground on which I can dismiss the bill, or refer it to the Master to inquire whether the suit is for the benefit of the infants. It has been said the bill contains a variety of allegstions against the trustees, of breaches of trusts, of wilful defaults, and allegations on the subject of costs incurred, having regard to the particular clause introduced into the will for the indemnity of trustees. It is a sufficient answer to this, that all the allegations will be to be dealt with by the Court at the bearing. It will be quite in the power of the Court to dismiss the bill, with costs, so far as these charges are concerned, at the hearing, in case these charges are not established as matter of fact. So far, as to the first object of the motion. With regard to the next object of the notice of motion, as to the removal of the next friend, after considering the affidavits very carefully, and all the statements on the subject of the next friend, I do not find any imputation cast on his solvency or his character; the circumstances under which he was named as next friend are open to some degree of suspicion, but I do not think there is any substantial case made, either against his cha racter or against his conduct. Therefore, on that ground, I think the motion cannot be supported, and that I am justified in refusing it, but without costs. April 28 and 30. Claims Evidence-Allegations. The orders of April, 1850, were not intended to affect or alter the ordinary rule of the Court, requiring parties to proceed in the establishment of their case secundum allegata et probata, and the strict rules of pleading are to be observed in proceedings upon claims.. In this case the claim was filed by the plaintiffs, which set forth that the defendant from their agent bought wool to the amount of 1801. and gave the agent a cheque for the amount; but the agent enclosed the cheque in a letter addressed to the plaintiffs, and forwarded the same by post, but it was lost. It was alleged that the cheque was no payment of the money, which was therefore still due, but that at law no action could be brought, the cheque hav ing been given; and it was prayed that the purchase money might be paid to the plaintiffs, the cheque never having been presented, on their giving an indemnity, which they offered to give. Evidence was entered into on both sides. The agency was denied. Several points were argued, but the only one on which it seems needful to report the case is, aa to the practice on claims. Rolt and Biggs for the claim. The Solicitor-General and Elmsley for the defendant. The VICE-CHANCELLOR was of opinion that the evidence adduced by the plaintiffs was insufficient to prove their case; but the claim was deficient in allegations necessary to establish their right to relief in equity; and that no consideration was shown to support an alleged promise to give a fresh cheque. His Honour then proceeded, As, however, this claim was filed by leave of the Court previously obtained, I have felt reluctant to dismiss it at once, and I have carefully considered whether it can properly be put in a train for further inquiry. By rea son, however, of the imperfect state of the evidence, I have been unable to see my way to the direction of any further proceedings, without, in effect, recommencing the cause, and recommencing it in a litigation far beyond what is necessary in the regular manner which will lead the parties to an expense and course of a suit by bill and answer. The orders of April, 1850, enabling parties to proceed in this Court by claim, were not, in my opinion, intended to apply to cases like the present. I am satisfied that leave would not have been given to file this claim, and that it would not have been asked for, if the defence set up could have been anticipated. I co-plaintiff's claiming a beneficial interest as cestuis ditor, who had assigned his debt to certain trustees Bagshawe and Davidson, for the new trustees. que trust in the subject-matter of the suit, but one of Mr. W. A. H. Arundell, on behalf of himself The VICE-CHANCELLOR. This bill is filed by of whom, at the same time, represents the estate of and all other creditors of that gentleman, who had The bill in this case was filed by a judgment ore one of several trustees, who was primarily liable, or executed a certain deed dated the 27th of Dec. 1848, jointly liable with his co-trustees, for a breach of except such as were defendants; and it prayed a de Tuesday, May 6, 1851. trust. In all cases of that character, what the Court claration that the plaintiff's judgment was a valid. GRIFFITH . VANHEYTHUYSAN, Breach of trust-Pleading-Parties-Misjoinder- volve an account of the estate of Vanheythuysan that the real estates might be sold, and the plaintiff's has to consider is, what the decree is to be. Of charge on the real estates of the debtor, and in pri course, in the case before me, the decrees will in- ority over the judgment of the defendant Ford, and Costs-Objection by answer. Two trustees gave a power of attorney to a third, an account be taken as between Griffith and his deed. The facts of the case, so far as necessary to received by the plaintiff Griffith. How can such debt, interest, and costs paid to the trustees of the enabling him, on a misrepresentation made by co-plaintiff in the suit? There is a direct conflict of be stated on the points desired, were, that in Trinity him to them, to sell out a trust fund, which he interests between Griffith as representative of Van- Term, 1848, the plaintiff Squire obtained a judgment applied to his own use, and died insolvent-A bill heythuyson and his co-plaintiff, to whom he is bound against Mr. Arundell for 6057. and costs, which was was filed by the cestuis que trust, one of whom to account in his character of representative. The duly registered on the 19th of August, 1848. The de had become the administrator of the deceased principle of the objection of misjoinder is, that the fendant, Ford, also abtained a judgment against Mr.. trustee, against the representatives of two other suit is so constituted as that the accounts cannot be Arundell for 3,0001. but as a security only for 1,495, trustees, who had both died, for the restoration taken. In the event of a question arising in taking 18s. 8d. and interest, and the judgment was regis of the fund: Held, that there was a misjoinder as to the cestui Griffith with liability, it might happen that every of December, 1848, the defendant, Mr. Arundell, the accounts of Vanheythuyson's estate, as to fixing tered on the 1st of November, 1848. On the 27th que trust, who represented conflicting interests-item of the account might be disputed, and in that by a deed of that date, and made between himself one a beneficial interest, and the other as admini- case it would become the interest of Griffith to de- of the first part, and Reignfred Arundell, William strator of a trustee primarily liable: Held also, that those defendants who took the ob- How, I ask, in such a case, could the contest be second part, and the several persons who were crefend his intestate's estate against the other plaintiff. Henry Cotterell, and Samuel Rowles Pattison of the jection by their answer, were entitled to their maintained between the plaintiff interested in reco-ditors of the third part, reciting the seisin in fee of costs on the bill being dismissed. By the will of the testator in this cause, the sum plaintiff, who would have to account? In such a to all the hereditaments and costs due and to become. of 9157. Three per Cent. Consols was bequeathed state of the record, and having regard to the autho- due to Mr. Cotterell, and the charges due to Messrs vering against Vanheythuyson's estate, and the other certain property subject to a mortgage, and subject to three trustees, named Smith, Plaister, and Van- rities which have been cited, and particularly the Hoggart and Co. in respect of an attempted sale of heythuysan, and the survivors or survivor of them, case of Jacob v. Lucas, I think this suit cannot be and otherwise relating to the hereditaments; and and the heirs, administrators, and assigns, of the sustained. That case is not distinguishable from reciting, also, Mr. Arundell's title to the furniture survivor, upon certain trusts, under which the plain- this. With the ingenious argument raised by Mr. and fixtures; and reciting that he had become in tiffs, Griffith, and others, were beneficially entitled. Bethell, founded on the supposition of a suit by a debted to various persons in various sums of money; The same trustees were appointed executors of, and sole plaintiff, uniting in himself both a beneficial and had proposed and agreed to execute an assignproved the will. In 1829 Vanheythuysan made interest and a representative character, it will be ment of the real and personal estate and effects to representations to his co-trustees that part of the time to deal with when such a case shall arise. the parties of the second part, in trust, for the be money was required for payment of the testator's Probably when that occurs the case may not be nefit of his creditors, to which the creditors had debts, and they at his instance executed a general found open to precisely the same difficulty as the agreed; and to accept the same in full discharge of power of attorney to him, under which he sold out one before the Court; for the sole plaintiff, if he were their respective debts, and to enter into the cove the whole 9157. and applied the produce, not in pay- liable also to account in his representative character, nants thereinafter contained: he then conveyed ment of the debts, for none appeared to be due, nor might submit, by his bill, to account for the whole the real estates to the trustees,, upon trust, to sell in any manner upon the trusts of the will, but to his fund received by him, and thus would be accounting and dispose of the real estates; and there was an own use. After this he became insolvent, and died to the defendants for all his receipts. That case, assignment, also, of the personal estate; and the in that state intestate. Smith, the trustee, made his should it ever arise, may be found not to be go- trusts which were declared of the money to arise will, of which he appointed executors, and died. verned by the same principles as are applicable to from the sale were to pay the costs of the deed, and Plaister then, under a power in the will, appointed that now before the Court, in which others are also other costs; and in the next place to pay and two new trustees jointly with himself, and after-joined with Griffith as co-plaintiffs, and the accounts satisfy rateably and proportionably, and without any wards made his will, of which he appointed exe- cannot be taken between plaintiff and defendants. preference or priority, to the creditors, the several cutors, and died. The fund never was transferred I think, then, the objection must be allowed, and debts or sums mentioned in the fifth schedule to the new trustees. Griffith, as a creditor of Van- that the bill must be dismissed, and it will be dis- The deed also contained a release by credi heythuysan, took out letters of administration to his missed as against those who have taken the objec- tors, with various provisoes attached to that release estate, and then he and the other persons beneficially tion by their answer, with costs; as against the On the 13th of June, 1849, after the execution of interested under the testator's will, filed their bill others, without costs. against the executors of Smith, the executors of Plaister, and against the two new trustees, alleging that if Smith and Plaister had not executed the the deed, the plaintiff, Mr. Squire, by another deed... power of attorney, the money could not have been of that date, assigned his judgment to the trustees. lost, and that doing so was a breach of trust by them: that the two new trustees had refused to institute a suit against the executors of those two deceased trustees, and that Griffith had reserved no assets of his intestate Vanheythuysan, the other trustee, and praying the administration of the estates of Smith and Plaister, and that the fund might be made good thereout. The executors of Smith took as an objection to the bill the misjoinder of interests in the plaintiff Griffith, he being entitled, as one of the cestui que trust, and liable, so far as his intestate's estate, if any, was concerned, to make good the fund. by the other The objection was not taken Smith the objection was insisted on, and it was For the executors of contended that no accounts could be taken when Griffith represented adverse interests. Had he been sole plaintiff he could not have been heard to charge, in his character of representative of the delinquent trustee, the innocent trustees with payment of a fund, when he might actually as administrator have the money in his hands. (Padwick v. Platt, 11 Beav. 503; Fulham v. M'Carthy, Ho. of Lords Cases, 703.) On behalf of the executors of Plaister it was argued that as it was plain that Griffith, as administrator, could not sustain the suit as sole plaintiff, the mere addition of another character, that of cestui que trust, could not give him a better title. (Jacob v. Lucas, 1 Beav. 436; and Lambert v. Hutchinson, Id. ib. 277.) In answer to this objection, it was said that, in fact, Griffith sued as a cestui que trust, and that as the estate of his intestate was insolvent, his representative character could plaintiff Squire's judgment was released by the deed The following questions at the hearing were raised on the part of the defendant Ford:-First, that the of the 27th of December, 1848. Secondly, that it the suit could not be maintained by the plaintiff for was merged by the deed of 1849; and, thirdly, that and on behalf of the plaintiff and the creditors under the deed of the 27th of December, 1848. The solu tion of these questions depended upon what were the rights of the plaintiff Squire at the time of the execution of the deed of the 27th of December, 1848, and upon the construction of that deed; that is, he had a valid charge upon the estate under the whether at the time of the execution of that deed stat. of the 1 & 2 Vict. c. 110, s. 13. The argu ments offered in opposition to the right of the plain tiff are noticed in the judgment of the Court, as are the principal clauses of the deed of December, 1848. for the plaintiffs. The Solicitor-General and C. M. Roupell were Toller, for the defendant Ford. facts, and stating the points, and referring to the 13th The VICE-CHANCELLOR, after recapitulating the clause of the statute before mentioned, proceeded thus:-Now that being so, there was, at the date of the deed of the 27th day of December, 1848, an existing charge upon the estate in favour of Mr. Squire, but it could not be enforced in equity at the time, a year not having elapsed; the point therefore to be considered is, whether the charge was released by the deed. In determining this question, it is first, I think, to be considered, what was the inten tion of the parties to the deed?-for the Courts, I think, are bound, in determining questions of this s nature, to pay very great regard to the intention of the parties. That doctrine was clearly laid down in the case of Solly v. Forbes, 2 Bro. & Bing. 38; and that any mortgage, pledge, lien, or other specific security, case appears to me to have so important a bearing which any creditor now possesses in respect of his upon the present question, and so strongly con- debt or debts, distinguishing between existing and firms the view which I entertain upon it, that future rights. The second branch applies to the I shall read some parts of the judgment in it. case of proceedings by any of the creditors, before Solly v. Forbes was this: A release was given by the deed became absolute, in which event the debts plaintiffs to A. one of two partners, with a provision are to be forfeited, but that clause contains an excepthat it should not prejudice any claims which plain- tion, which refers to existing rights, "that if the tiffs might have against B. the other partner, and creditor sue or take any proceedings against Arunthat in order to enforce the claims against B. it dell, his heirs, executors, or administrators, except should be lawful for plaintiffs to sue A. either jointly for conformity or for making available any such mortwith B. or separately. In an action by plaintiffs gage, charge, lien, or specific security as aforesaid." against A. and B. this release having been pleaded The third branch of the clause, as I have mentioned, by A. and set out on oyer in the replication, with an is a general saving, which also applies to existing averment that the action was prosecuted against A. rights "of any charge or lien, which they, or any of jointly with B. for the purpose of enabling plaintiffs them, now have or hath upon any estate or effects to recover payment of moneys due from B. and A. to whatsoever." It is clear, therefore, that some existplaintiffs, either out of the joint estate of B. and A. ing rights were meant to be saved, and those rights or from B. or his separate estate; the replication are variously defined in the different branches of the was demurred to, and the demurrer overruled. clause, being in one case called "mortgages, pledges, Chief Justice Dallas, in giving judgment in that case, liens, or any other specific security," that is in the went very fully into the effect which is to be given first branch; in the second branch of the clause being to a general release, with reference to restrictive described as "mortgages, charges, liens, or specific clauses which are put upon the release; he says, securities, as aforesaid," and in the third branch "The general question which arises is, whether the being described as "any charge or lien." Reliance release, as set forth, constituted a bar to the action. was placed in argument upon the words "specific Of the intention of the parties no doubt can be security," as limiting and controlling the effect of the entertained. It was meant to release Ellerman as proviso. But it is to be observed that the security, to person and effects, but not Forbes; and therefore which is referred to by the deed, is security in respect to retain against Ellerman every right and remedy of the debts; and the lien, therefore, which is renecessary to enforce payment from Forbes. But so ferred to, must be lien in respect of the debts. Then to construe the release as to make it a release of do the provisoes mean to save only specific liens in both, which it would be if no action could be brought respect of the debts created by the actual holdagainst Forbes, because Ellerman could not be ing of the property?-is that the meaning of it? joined, would make it operate, not to effectuate, but The generality of the words themselves is to defeat the intent of the parties." [His Honour against that construction, and I think the context is then proceeded to read the judgment at length, against it too; for I observe that the deed distinguishes making various comments on it as he went on.] between rights against the person and rights against The Lord Chief Justice said, in Payler and Others the property. There is in the first branch of the v. Homersham, 4 M. & Sel. 423, Lord Ellen-clause the proviso which applies to property, that it borough adopts the position, that the general words shall not destroy "any mortgage, pledge, charge, or of a release may be restrained by the particular re- lien." There is in the second branch of the clause cital. "Common sense (said his lordship) requires a direct distinction taken between proceedings that it should be so, and in order to construe any against the debtor, his heirs, executors, or adminiinstrument truly, you must have regard to all parts, strators," and "proceedings for effectuating claims and especially to the particular words of it." The against the property," the expression being to take case in Rolle to this effect, though said to have been " any proceedings against Arundell, his heirs, denied by Lord Holt to be law, "seems to me (said executors, or administrators, except for conformity Lord Ellenborough) as sound a case as can be or for making available any such mortgage, charge, stated." And Mr. Justice Bayley adds "there is no lien, or specific security as aforesaid.' There is in doubt but a particular recital in a deed will restrain the third branch of the clause the power to sue perthe general words." There we get the principle very sons liable other than Arundell, his heirs, executors, distinctly laid down which is to govern the Court in or administrators. And I think, therefore, that the construing releases with exceptions. I have then to deed leads to the distinction of proceedings against consider, following the principle laid down in that the person and proceedings against the property; judgment, the intention of the parties to this deed and the nature of the transaction carried out by the with reference to the release of the charges; and deed tends to favour that distinction. Some arguI think the intention is principally, and indeed al- ment was addressed by Mr. Toller upon the terms most wholly, to be collected from the releasing of the recital, that the property was subject to mortclause, with the several provisions which are at- gages, and subject to costs due and to become due tached to it. The releasing clause runs thus:- to Cotterell, and the charge due and to become due "That the parties covenant that this present cove- to Hoggart & Co. The charges are provided for nant" (it is rather singular; I suppose it means this under the general trust for payment of costs; but present deed) "shall operate and enure, and may be whether they are or not, I think it is quite clear pleaded in bar as a good and effectual release and you cannot construe the words of the provisoes by discharge of all and all manner of actions, &c., the recital which is contained in that part of the debts, &c., judgments, extents, &c., claims and de- deed. I am of opinion, therefore, that the plaintiff mands, both at law and in equity, or otherwise how- Squire's judgment is not released by the deed of the soever, which they now have or hereafter may have 27th of March, 1848. As to the second point, against the said Arundell, his heirs, &c., or his whether the judgment has been merged by the deed or their estate or effects, &c.; but so, nevertheless, of June, 1849, several cases were referred to upon that this present covenant shall not operate upon that point (Toulmin v. Steere, 3 Mer. 210; Parry or destroy any mortgage, pledge, lien, or any other v. Wright, 1 Sim. & Stu. 369; and Brown v. Stead, specific security which any creditor now possesses in 5 Sim. 525); but I confess it does not appear to me respect of his debt or claim." You observe that the those cases apply to the present case. There is no deed draws the clearest distinction, releasing all doubt whatever that the purchaser of an estate claims and demands which the parties now have or which is subject to a mortgage, whose mortgage is hereafter may have; the saving applies to existing paid off out of the purchase-money, cannot afterwards claims." And further, that if in the meantime and set up that mortgage as against the subsequent mortbefore these presents shall be discharged from the gagee,-that is the decision of Toulmin v. Steere; said proviso, the said creditors, &c. shall com- and there is equally as little doubt, that a prior mortmence any action, &c. against Arundell, his heirs, gage may be so dealt with by a subsequent incumexecutors, or administrators (except for conformity brancer in his dealings with the estate, as to prevent or for making available any such mortgage, charge, its being afterwards set up by him, which is the case lien, or specific security as aforesaid available), of Parry v. Wright. Brown v. Stead seems to me for or on account of any debt or debts now to lie half way between Parry and Wright and due by Arundell to them, such debts or debt shall Toulmin v. Steere. Then the question to be conbecome absolutely forfeited, and this present cove-sidered with reference to Toulmin v. Steere is, nant shall operate and enure, and may be pleaded in whether or not this debt is paid off. It is clear that law as good and effectual release and discharge of it is not. It is not payment of the debt by a trustee, such debt or debts repectively: provided, &c. that but it is an assignment of it, not to the trustees who nothing herein contained shall extend to prevent the creditors from enforcing or otherwise obtaining the full benefit of any charge they have upon any estate or effects, or from suing any person or persons other than Arundell, who is, or are, or shall, or may be liable, for the payment of all or any part of the said respective debts." Now that clause, therefore, has three branches; the first releases all actions, &c. including judgments, claims, and demands, which creditors, parties to the deed, have or may have in respect of their debts, and, no doubt, if that clause had been uncontrolled, it must have released those judgments; but it terminates the proviso that it shall not operate upon held the estate, but to the three trustees who are the assignees of the present property. Well, but besides that, it would be going a monstrous length to say that these trustees for creditors, under the original deed of the 27th of December, 1848, are to be considered as owners of the estate to bring them within the principle of the case of Toulmin v. Steere; they are, I think, in the character of mortgagees or creditors upon the estate, having a charge upon the estate for the payment of their debts; and they are, therefore, as I conceive, not at all in a position in which, by paying off that charge, they would be considered as not being entitled to the benefit of it. I think, therefore, that this case is out of the principle of V. C. TURNER'S COURT. Toulmin v. Steere; and I am quite clear it is out of the principle of Parry v. Wright, because I think it perfectly clear that this has not been so dealt with as that it has been actuully extinguished by the mode in which it has been assigned. I think, therefore, that those cases do not at all govern the present case, and I am of opinion, therefore, that the plaintiff Squire's judgment is not merged by the deed of June 1849. With regard to the third point, the frame of the suit, the judgment as assigned by the deed of 1849 to the trustees is, I think, in trust for the benefit of the creditors, because when we look at the deed of assignment, the deed of assignment recites the deed of the 27th of December, 1848, and recites "that all the real and personal estate and effects of Arundell were by that deed assigned and transferred to the parties thereto of the second part in trust for the benefit of such of the creditors of Arundell as should set their names or copartnership firms or sales to the now recited indenture." It then recites the judgment, and then it recites that Squire has consented and agreed to transfer to the three trustees as such trustees for the creditors of Arundell, the judgment and all moneys and securities in consideration of the debts payable and to be paid thereunder; and then the assignment is to those three parties to have and receive the said judgment debt and costs, sum and sums of money, or other the premises, to them and the survivor or survivors of them, absolutely as such trustee or trustees as aforesaid. Now, what can that mean, except as trustee or trustees for the general benefit of the creditors, which by the early part of the deed they are said to be? The result, therefore, of the examination of this deed is, that the judgment is by that deed assigned to those three persons as trustees for the creditors. The plaintiff is one of those creditors, and he has a right, therefore, as I conceive, to sue on behalf of himself and others, and that he has properly framed this suit for the purpose of having the judgment debt raised. Now, I am not sure what the parties consider the frame of the decree should be. I go with the prayer of the bill to this extent, declare that the, judgment constituted a valid lien and charge upon all the real estates before described. In priority of the judgment of Ford, and his claim in respect thereof, and in priority of the lien and charge claimed by the other defendants, those two declarations, I think, will be quite right. Then it prays that the real estate may be sold by and under the decree and direction of the Court. Now that I take it can only be to the extent of the plaintiff's claim upon the judgment, therefore it must be raised by the sale of the estates comprised in this deed. Thursday, May 8. PENNY V. PENNY. Claim orders, 8th and 13th of April, 1850 Parties Representatives of a deceased executor -Accounts. The executors of a deceased executor are necessary parties to a suit by claim for a legacy when the general accounts of the testator's estate are involved, Where suit accounts are involved the suit should be by bill, and not by claim. The Court has a discretion by the orders of April, 1850, either to give or refuse relief at the hearing. The meaning of the words "in the first instance," in the 8th order (a). The claim in this case was filed by a legatee to recover payment of one-seventh part of a legacy of 4001. The will was a very long one, and the facts stated in the claim, but in several respects denied by the affidavits filed by the defendant, who was the surviving executor of the testator's will, the other executor having proved and died. The principal point in dispute was as to the carrying on of a farm pursuant to the directions of the will, and the outlay thereon, and that there were no means at the disposal of the defendant for that purpose, and that the accounts, as he alleged, had been taken and settled long since. Rolt and Westoby, for the plaintiff. Bailey objected to the hearing on two grounds, first, that the case, being contested as to facts, was not a proper one to be heard by claim, and secondly, that the suit was defective for want of parties. On the first point, the complicity and contest of facts were sufficient to show that such a case was never intended to be brought forward by this new species of practice. The second point, however, is of more material consequence. The personal representatives of the deceased executor ought to have been brought before the Court, for the accounts must necessarily involve the general administration of the estate of the testator. This was obvious from the directions for the carrying on of the farm, and the conflicting allegations of the plaintiff and defendant as to the means of doing so. It is plain that where such accounts are involved, the estate of every person liable to account must be represented. The cases of Kellaway v. Johnson, 5 Beav. 319, and Perry v. Knott, id. ib. 293, have decided that 32nd order of (a) Perry v. Knott, 5 Beaver, is observed on in the judgment." V. C. TURNER'S COURT. August, 1841, enabling parties to proceed against one Rolt upon this objection. This claim being for such more THE LAW TIMES. QUEEN'S BENCH. As QUEEN'S BENCH. 121 acres of leasehold, five distinct tenements, which are described in entries down to 1804 in the court rolls of the said manor as freehold of the said manor, and The Bower-place Farm consists of, besides a few by the following description : Part of Burby. Paying yearly Park Field and Tilt Wood Mays.. Beldams Croft........ 8. d. Supposed to contain 8. r. p. 0 7 17 1 13 1 7 41 1 2 0 11 31 2 28 09 09 21 19 3 2 26 that there must be inquiries in respect of these value. The relief is the amount of one year's quitmatters, and it was equally clear that for such pur- rent. The quit-rent is a small sum for such teneposes a proceeding by bill was the proper one to be ment. The defendants are the legal personal repreadopted. The proper course would be to dismiss sentatives of the late Mr. J. W. Commerell. The in his opinion the orders of 1850 were not intended seised in fee of a freehold estate in the parish of the claim without prejudice to a bill being filed; as said Mr. Commerell, at the time of his death, was to apply to such a case. With respect to the words Worth, in the said county of Sussex, containing "in the first instance," in the 8th order of April 1850, about 140 acres, usually known by the general name he could observe, that, without intending to give a of the Bower-place Farm, all of which is within the conclusive opinion, he considered that the meaning said manor of Southmalling Lindfield. was, that the claimant should be able to proceed against one party in the first instance, and then if the Court required the presence of other persons, it might give then directions at the hearing; as, for instance, in the simple case of a claim for a legacy against one out of several executors, or against a surviving executor, on being served he might say, "I admit assets," and in that case a decree might at once be made. If, on the other hand, he said, "I do not admit assets for payment of the legacy," the Court might at the hearing require the presence of the other executors, or of the representatives of the deceased executor, that he considered to be the meaning of the words "in the first instance." the orders seemed to have misled the parties, al- ferent freehold tenants of the manor, but a little bethough his own opinion was that they were never fore the year 1735 they were all held by a freehold intended to apply to a case like this; justice could be tenant of the name of Charles Goodwyn, from These five tenements were anciently held by difadministered by dismissing the claim without costs, whose descendant they passed to a person of the without injustice to the filing of a bill. ready, in claims, said, that it would be desirable to His wife, and their son, George Maxmillian Bethune, Friday, May 9.-His Honour, having been com-death in 1804, was tenant thereof under the lord of name of George Bethune, who, down to and at his have twenty causes and claims placed in each day's who was entitled to the reversion in fee, in the year pelled to rise, in consequence of parties not being the manor. George Bethune was tenant for life. paper, but, no decree or order should be made in 1802, for a nominal consideration, conveyed the cases below the twelfth. It was also desirable that same tenements to certain trustees for sale in fee, some rule should be laid down as to the time within with the consent in writing of the said George which, answers and affidavits should be filed, in Bethune during his life. claims, so as to prevent the postponement of them, trustee sold by public auction in London, and conon the ground that parties were taken by surprise. In 1811 the surviving veyed the same tenements to Richard Baker in fee, and he continued seised thereof in fee, and in receipt of the rents, and in the enjoyment of the same down to his death in 1824. By his will he devised the same tenements to certain trustees in fee. In the year 1825 the trustees of Richard Baker's will sold and conveyed the same tenements to the said Mr. Commerell in fee, and he continued seised in fee and in receipt of the rents and in the enjoyment of the same until his death. On the 22nd of December, 1847, Mr. Commerell, by his will, devised the same no change of occupation, nor was there any act done five tenements to his grandson in tail. Mr. Baker did not at any time reside in the county of Sussex. to bring it to the knowledge of the lord that the proOn the property being conveyed to him, there was perty had changed owners. But Mr. Baker was mentioned as the owner in the assessment to the land-tax for several years. death the said Mr. Commerell was possessed of certain horses, including those in the declaration At the time of his mentioned, which were seized as heriots as next mentioned. On the 27th of December, 1847, the reeve of the said manor of Southmalling Lindfield, in the name and by the authority of the lord of the said manor, seized at the residence of the said late Mr. Commerell, as heriots, in respect of the said five freehold tenements, thus claiming them to be tenements merell. The defendants, who are the legal personal of the said manor, five horses of the said late Mr.Comrepresentatives of the said late Mr. Commerell afterwards obtained and kept possession of the horses that had been so seized, and on their refusal to give lord of the manor, the present action was brought. them up, orto pay any composition for them to the Comnion Law Courts. COURT OF QUEEN'S BENCH. Tuesday, April 29. In trover for a heriot, it was proved by entries in manor: TURNER, V.C. said he had no intention to lay down any general rule as to what cases fell within the general rule of suits by claim. To do so would be inconvenient, as it would tend to fetter the discretion which it was the intention of the framers of these orders to reserve to the Court. The language of the 13th order shewed, that a reservation of such discretion was intended, and left it to the Court at the hearing to grant or refuse relief, or to direct inquiries as the facts disclosed, and the justice of each case required. He was of opinion that the orders did not enable a plaintiff to proceed against a surviving executor in the absence of a formal representative of the deceased executor. been the intention, he believed that intention Had such would have been With regard to the decisions on the 32nd order pointedly expressed. of August 1841, he might observe that, before the issue of the orders instituting suits by claim, the question had often been considered whether a suit under that order could be maintained against one of several executors in the absence of others, or the representatives of deceased co-executors. In some cases it had been decided that this order did not apply to such a suit; and if the orders of 1850 had been intended to alter that, they would have explicitly said so. He considered the defendant at full liberty to take and insist on the objection at the hearing. It appeared that the accuracy of the conclusion at which Lord Langdale had arrived as to the applicability of the 32nd order of August, 1841, to the case of trustees jointly liable, had been doubted by Vice-Chancellor Knight Bruce, and he concurred in that doubt. Those decisions had proceeded uniformly on an impression entertained by his lordship that there were very few instances in which questions of contribution could arise, and he said that there had scarcely been a single instance within his recollection where one trustee having been made liable, he had sued his co-trustee for contribution. On that ground Lord Langdale said the proper construction to put upon that order was, that it was most necessary that all the trustees should be made parties; and he said that the remedy might always be enforced against one only of several trustees, and that the only reason for having them all as parties in a suit in this Court was, that they might be bound by the accounts, and that it might not be necessary to open the accounts in any subsequent suit for contribution. As suits for contribution were extremely rare, his lordship thought that the proper construction of the orders was to dispense with the presence of all the trustees, and to allow one out of several to be sued in the first instance. The question before the Court was, whether the objection was well founded concerning the absence of the personal representative of the deceased executor; and his Honour was of opinion that it was. As to the course to be adopted with the claim: was leave to be given to amend by adding this party? or was the proper form of proceeding prises freehold, copyhold, and leasehold teneThe said manor of Southmalling Lindfield comthat by bill? He thought the amendment by adding ments. The court rolls of the said manor dethis party would not perfect the claim, because the scribe the freehold tenants of the said manor as testator having directed legacies to be paid out of holding freely of the lord by fealty, suit of court, his estate, and that the residue should be employed heriot, and relief, when they shall happen, and a in carrying on the farm till a stated time, and then yearly quit-rent for every freehold tenement. The to be valued, and this particular 4007. to be divided, heriot is due on the death of a tenant of the lord the general accounts of the personal estate would dying solely seised, but no heriot is due on aliena-fide disposed after his death, before the lord of the not be enough, for there must be an account of the tion. Relief is due on the entry of a new tenant of personal estate employed in carrying on the farm; the lord whether upon death or alienation. The and in doing this questions would arise as to what heriot is the best or such other beast belonging to assets were employed in so doing, and also what the deceased tenant at the time of his death as the allowances were to be made in respect of such em- lord chooses to take, and, where no dispute has arisen, ployment, and to whom. It was, therefore, evident has usually been compounded at two-thirds of its Held, that the lord's right of action was not barred to which the defendants pleaded that the plaintiff was January, in the year of our Lord 1849, and came on Lindfield, in the county of Sussex, and was so at the by Richard Baker, by the trustees of his will, by the them, nor is there any entry in the court rolls in sessed of any live animal, nor does it appear whether, the entry of Mr. Commerell in 1825, a relief be- |