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faction of a debt, pretended to be due to cuted for six years, you may plead the themselves. By the collusion of an execu- statute of limitations. But this plen is tor is meant, that a stranger retains the altogether bad; for in it you do not plead assets with his consent and approbation. the statute, nor do you aver, that you have Now, here the bill charges, not only that not promised within six years. Traill permits Paxton and Co. to retain the Besides, by answering the bill of reviyor, sums remitted to them, but that he alleges you have subnitted to meet the demand, that they are entitled so to retain. I am and cannot plead the statute to the amendtherefore inclined to think, that the cir- ments. cumstances of this case bring it within the

The plea was overruled. exception from the rule, that a stranger cannot, in respect of his possession of assets, be made a party to a creditor's bill.




1823. 7 1823. FERRAND V. PELHAM.

November. November.

To the amendments of a bill of reviror Order for time to answer, obtained as of and supplement, which was filed in 1821, course by petition at the Rolls, after plea and amended in 1822, the defendant pleads overruled, will be discharged as irrethat the original cause became abated in gular. 1805, and that no proceedings have been

In the above cause, after the plea was since had thereon : such a plea held to be overruled, the defendant, by petition at bad.

the Rolls, obtained as of course an order In this cause a bill of revivor was filed

for a month's time to answer. in 1891 against the defendant as the per- A petition was presented by the plaintiff, sonal representative of Sir Richard Worsley: that the order for time might be discharged to which he put in his answer, insisting

as irregular. that the plaintiff was not entitled to have Mr. Skirrow, for the petition, relied on the suit revived, and claiming the same the case of Jones v. Saxby.* benefit of the statute of limitations as if he Mr. Pepys, contrà, insisted on the auhad pleaded it.

thority of Griffith v. Wood. The bill of revivor was afterwards The Master of the Rolls stated, that, amended : and to the amended bill the among the old authorities of that Court, following plea was put in :

there were many precedents of orders for “This defendant, not confessing, &c., time obtained as of course, after a dedoth plead to all such parts of the said murrer or plea overruled; and he doubted bill as have been introduced into the same, whether the attention of the Lord Chanor added thereto by way of amendment; cellor had been called to these authorities, and for plea saith, that the original cause, which were not in print, at the time when by such bill sought to be revived, became he decided Jones v. Sarby. abated in the year 1805, and no proceed- Mr. Lovat, amicus curiæ, stated the case ings have since been had thereon : where- of Trimmer v. Baker, I in which the subject fore,” &c.

had been considered by the Vice Chancellor Mr. Bell and Mr. Pepys, for the plea, and the Lord Chancellor, and in which they cited Hollingshead's Case, and Harris v. both agreed, that such orders were irrePollard. +

gular. Mr. Hart, contrà.

Accordingly, on the authority of Trimm Vice Chancellor.-There is no doubt, v. Baker, the Master of the Rolls discharged that, if a suit abates, and is not prose

* I Swanst. 194. * 1 Peere Williams, 742.

+ I Ves. & B. 541. + 3 P. Wms. 348. Lord Redesdale's Treatise.

* Law Journal, p. 218.


the defendant's order for time, but refused and Lincolnshire, to the use of himself for to discharge it with costs.

life, without impeachment of waste ; remainder to the use of trustees during his life, to preserve contingent remainders; then, as to the Northamptonshire estates,

to the use that the intended wife should, 1823.

from the decease of her husband, receive Nov. 10, 11.

out of the rents a yearly rent charge of By one set of marriage articles, the real 6001., which, upon a contingency that did

not happen, was to be increased to 8001., estate of an infant, being the intended wife,

and which was secured by a term of is settled ; by other articles of the same date, the husband settles his estate, creating ninety-nine years ; remainder, as to all the

estates, to the use of the first and other a charge on it in favour of the wifeThough the wife should afterwards defeat settlement, and for default of such issue, to

sons of the marriage in tail male, in strict her settlement, the estate of the husband

the uses which Sir J. Trollope should, by remains bound by his settlement.

deed, appoint; remainder to the brothers A settlement of the wife's chattel real,

of the settlor ; with the ultimate reversion made during her infancy, is binding on her.

to his right heirs. Where a term is created in trustees,

By another indenture of the same date, charged with portions for younger children,

which was executed by Ann Thorold, and with the expenses of their maintenance though she was then under ths age of and education till the portions are payable; twenty-one years, and to which her father and afterwards, the trustees are empowered

was a party, it was covenated, that a settleto raise, out of the personal estates, the same ment should be made of the wife's estate. portions, with interest at 5 per cent., to By this settlement, à moiety of the rectory accumulate as far as it is not expended in of Saltfleetby St. Peter's, some freehold maintenance :-Held, that the court will not premises at Tedford and Bunkhill, and the direct out of which fund the portions shall entirety of certain copyholds in Fisherton, be raised, and that, unless they are raised were to be conveyed to Sir John Trollope out of the personal estate, the children will in fee. As to all the other freeholds of the not be entitled to interest.

wife, the uses were (subject to her father's By marriage articles executed during life interest,) to Sir John Trollope for life, the wife's infancy, some of her real estates

without impeachment or waste; then to are limited, subject to a power of appoint- trustees to preserve contingent remainders ; ment given to the husband, to the children afterwards to the wife for life; next, to trusin tail, as tenants in common; the husband,

tees to preserve contingent remainders; then by his will, devises and appoints all the to the use of all and every or such one or estates belonging to him, or over which he more child or children of the marriage, in had any power of appointing, to trustees, such proportions and in such manner as upon trusis which are not according to his Sir John Trollope should, by any deed, power, and the first of which is, to raise executed in a prescribed form, or by his portions for the younger children:-Held, it last will, appoint; in default of appointbeing apparent, on the face of the will, that

ment, to all and every the children of the the testator had in view the doctrine of marriage, share and share alike, as tenants election, that the younger children can- in common in tail general, with cross renot claim the portions, and also take the mainders between them; if there were no estates limited to them by the articles. children, remainder to such uses as the

By articles of agreement, dated the 24th wife should, by deed or will, appoint, and of March, 1798, and made in contempla- in default of her appointment, to the use tion of the marriage of Sir John Trollope of Sir John Trollope, his heirs and assigns. and Ann Thorold, Sir John Trollope cove- The articles of agreement further provided, nanted to convey, within six months after that certain leaseholds, and the moiety of the solemnization of the intended marriage, certain copyholds, in which the wife had a certain estates, situate in Northamptonshire reversionary interest expectant upon the


death of her father, should be settled to the the moiety of the rectory of Saltfeetby, to same uses as had been declared of the last- hold the same upon the following trusts : mentioned part of her freehold estates, so viz. as to such of the said hereditaments as far as the rules of law and equity would had not been agreed to be settled, to the permit.

use of his said trustees for five hundred The marriage between Sir John Trollope years, upon trust, to raise a sum of 50001. and Ann Thorold was, shortly after, duly for each of his children who slould be solemnized; but no settlement was ever living at his decease, (except an eldest son,) made in pursuance of the articles. Henry each

sum of 5000l. to be a vested interest Thorold, the father of Ann, died in 1805. in the child for whom it should be raised,

Sir John Trollope, by his last will, dated upon his or her attaining the age of twentythe 24th of March, 1809, gave his wife a one years, or the solemnization of his or legacy of 500l., and directed his trustees her marriage, with the consent of guardians; thereinafter named, to permit her, person- and, in the mean time, the trustees, out of ally, with her family, to occupy his man- the rents and profits of the hereditaments sion-house of Casewick, in the county of comprised in the term, were to raise, for Lincoln, together with the out-houses, the maintenance and education of each of plantations, and gardens, belonging there- the said younger children respectively, unto, and also together with such quantity such yearly sum or sums of money, not of the adjoining land, not exceeding thirty exceeding five per cent per annum on their acres, which should be in his possession at respective portions, as to the trustees should the time of his decease, as his wife should seem proper : And further, as to the hereselect. This occupation was to continue ditaments comprised in the term of five during the life-time of his wife, or until hundred years, after the determination of some one of his sons should attain the age the same, and, in the mean time, subject of twenty-one years, or marry with the thereto, and also as to the manors and other consent of his guardians; the taxes and hereditaments agreed to be settled as aforeexpenses of repairs, in the mean time, to said, upon the same trusts as were declared be paid out of the income of the personal by the nrticles of the 24th of March, 1798, estate: and the wife was to have the use concerning the hereditaments thereby and enjoyment of the household goods, agreed to be settled. And he directed, that furniture, carriages, horses, &c., and also his trustees should not sell, mortgage, or of the farming stock which should be in or demise any part of the hereditaments comabout the premises.' Then the testator, after prised in the term of five hundred years, reciting the purport of the articles for the until some one of the portions, or some settlement of his own estate, and that no part thereof, should become payable, and settlement had been made in pursuance of that the rents and profits, which should the agreement, confirmed the articles, and remain after answering the maintenance directed them to be performed. Immedi- before provided for the younger

children, ately afterwards, he devised to his wife, for should be received by the person, who, for her life, the moiety of the rectory of Salt- the time being, should be entitled to the fleetby St. Peter's, and certain premises in same hereditainents in remainder expectant the parish of Fisherton (parts of that por- on the term. He then bequeathed all the tion of her estate to which he was, under residue of his personal estate and effects to her articles, entitled in fee): and then he John Linton and Thomas A. Trollope, to gave and devised and, by virtue of every hold the same upon trust for the person or power enabling him in that behalf, appointe persons, who, under the articles of his will, ed unto John Linton and Thomas Anthony should be entitled, for the time being, to Trollope all the hereditaments agreed to his real estates; but subject to a proviso, be settled, or over which he had a power that no tenant in tail should take an absoof disposition, and all other the manors lute interest in any part thereof, till he and hereditaments belonging to him, or attained the age of twenty-one years ; and over which he had a power of appointment, also, to a power given to his trustees to and also, subject to the life interest given levy, raise, and pay (if they should think to his wife, the premises in Fisherton, and fit so to do), out of his personal estate, and

in exoneration of the term of five hundred amount to five per cent. on the portions
years, all or any one or more of the several given to the plaintiffs, to apply part of such
sums of 5000l. before ordered to be raised sums to their naintenance, and to accumu-
for younger children : every sum of 50001. late the surplus during their minorities for
which should be so raised, was to be laid their benefit respectively,—that inasmuch as
out at interest, in government or real secu- no appointment had been made by Sir John
rities, and, after a competent part of the Trollope of Lady Trollope's estates, the
dividends, or annual income, had been ap- plaintiffs might be declared to be entitled,
plied to the maintenance of the child en- under Lady Trollope's articles, equally with
titled to the portion, the principal and the their eldest brother, as tenants in common in
residue of the dividends or interest were tail to the estates of Lady Trollope, com-
to form an accumulating fund for the prised in these articles, -and that Lady
benefit of that child : but the testator de- Trollope inight either elect to confirm these
clared, that the fund, which should be articles, or relinquish all the benefits which
charged with raising these portions, or any she might claim under Sir John Trollope's
of them, should be entirely in the discretion will, or under his articles for the settlement
of his trustees, without any right or equity of his estate.
on the part of the persons entitled to his Mr. Bell and Mr. Barber for the plain-
real or personal estates to require, that

tiffs :
either of these estates should be resorted Mr. Hart, Mr. Pemberton, and Mr. Trol-
to or applied, in aid or exoneration of, or lope for the various defendants.
before, the other. And the testator further
directed, that all persons claiming any
benefit under his will should, under the
doctrine of election, be bound to give effect The first two questions were :-

re :- Whether, to every disposition and direction therein if the wife did not elect to confirm the arcontained, and that no one of his daughters ticles for the settlement of her freehold and or younger sons should be entitled to have copyhold estates, she could claim any beor to claim any provision under him, or nefits under the articles, for the settlement out of his settled or unsettled property, of her husband's estates : and secondly, other than the provision made for him or whether the interest of the wife, as to her her respectively under his will.

leasehold for years, was absolutely bound By a codicil, dated the 11th of March by her articles. 1818, Sir John Trollope gave his wife a Vice Chancellor. — The lady being an further annuity of 5001., which he directed infant, a settlement is made of her real and to be issuing out of all the estates devised personal estate. The husband concurs in by his will, or such of them as he had the this settlement; and with a reference to it, power of charging.

he, at the same time, limits his own proSir John Trollope died on the 26th of perty to certain uses, under which the wife April, 1820, leaving his widow and several acquires a benefit. When he does this, he children him surviving. The widow re- knows that there is a chance of the wife's ceived her legacy, and continued in the oc- subsequently defeating the settlement of cupation of the inansion house at Casewick, the premises, in which she has a freehold and the appurtenances, until the 5th of interest, as having been executed while she May, 1821 ; on which day the eldest son was under the disability of infancy; but he aitained his full age.

enters into mutual engagements, subject to The bill was filed by the younger chil- that contingency : and, therefore, though dren against the trustees, the widow, and she should defeat her settlement, still his the eldest son, in order to ascertain the settlement must remain good. rights of the parties under the marriage The settlement must also be good as to articles and will. It prayed, that the trusts the wife's real chattel. It has, indeed, been of the will and codicil might be established, argued, that the husband cannot, before —that the trustees might be ordered to raise marriage, contract as to the wife's real out of the income of the testator's real and chattel. It is, however, quite clear that he personal estate, such yearly sums as might can. It was next said, that the wife's per

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sonal property is the property of the hus- On the contrary, if the portions are band, and that, therefore, the settlement of raised out of the personal estate, the diit is the husband's settlement, and will pre- rection of the will is express, that they vail, even though, at the time of making it, shall, in that case, bear interest at 5 per the wife be an infant; but, that there is a cent., which, if not annually exhausted in species of personal property,-a chattel- maintenance, is to accumulate for each real,- which is not the husband's abso. child, till he or she comes of age. lutely, and that, therefore, the wife can no Mr. Bell's argument was, in effect, this : more part, by any instrument, executed - The portions are to bear interest, if during her minority, with her contingent raised out of the personal estate ; therefore, interest in such personal estate, than she they must be presumed to carry full intecan with her freehold estates. The answer rest, if raised out of the real estate The to that argument is this :-The husband

same reasoning might lead to a conclusion possesses the general personal estate of the directly opposite. It might, with equal wife absolutely, and the Court binds him to justice, be said, that, as it is clear the porperform his contract concerning it: with tions cannot bear interest, if raised out of respect to her chattel real, he possesses it the real estate, neither ought they to bear only conditionally, there is a power to be interest, if taken out of the personalty. exercised by him, before it becomes his Then it is contended for the eldest son, that absolutely. Is it, then, to be permitted, the Court can never say, that these portions that the wife shall keep him in suspense are to be raised out of the personal estate. with respect to the validity of the settle- It is not for me to determine, out of which ment made of it, in order that she may say fund they are to be raised. That rests enafter his death, —" This chattel shall not tirely with the trustees. All that I can do be affected by the settlement ?” when, but is, to declare, that these portions, to the for the settlement, he could have made extent to which they are raised out of the that chattel absolutely his own.

personal estate, shall bear an accumulating interest of 5 per cent. ; and that, to the ex

tent to which they are to be raised out of The next question which arose upon the the real estate, they shall not bear interest, settlement and will, related to the interest until they become payable, but that the of the portions. The plaintiffs contended, children shall take only what may be fit for " that they were entitled to have 2501. their maintenance and education. raised for each of them yearly, as interest on their respective portions, and that the surplus, which should remain after their education and maintenance had been pro- The last and principal question in the vided for, should be accumulated for their cause was, whether, supposing the articles benefit respectively, On the other hand, to be confirmed by Lady Trollope, the the defendant, Sir John Trollope, insisted, younger children were entitled, both to the that each of the younger children, until his portions given them by the father's will, or her portion became payable, was enti- and also, to take, as tenants in cominon in tled only to a fair allowance for mainte- tail, along with their elder brother, those nance and education.

estates of their mother, which, by the artiVice Chancellor.-If these portions are cles, were limited in default of appointment to be raised out of the real estate, the by the father, to the children of the maryounger children will have a right to riage. maintenance and education, and to nothing The plaintiffs contended, that the father more. As against the real estate, they can had made no appointment of the estates in never claim interest on their portions : for question : that, therefore, the limitation in the general rule is, that, where a real estate default of appointment took effect; and is charged with portions, interest thereon that they ought not to be put to elect beshall not be allowed, the object being to tween the portions bequeathed hy the will, make the charge as sinall as is consistent and the interests given by the articles, with the purposes of the family,

because, in insisting upon those interests,

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