The dividends of the moiety of a residuary fund, invested in bank-annuities in the name of executors, being given to A. during his life, he assigns his right and title to them to B. upon certain trusts, of which the first is to secure an annuity granted by him to B.; but no notice of this charge is given to the executors; A. subsequently, for valuable consideration, assigns the dividends to C., who has no knowledge of the former assignment, and before he concludes his agreement, or pays his money, inquires of the executors as to the state of the fund, and is informed by them, that they will pay him the dividends:-Held, that C.'s priority of notice will prevail over B.'s priority of assignment, and that C. is entitled to the dividends in preference to B.

In this cause, William Dearle and Caleb Sherring were the plaintiffs. The bill prayed, that an account might be decreed of what was due and owing from Ann Bircham, Willian Foster, and William Unthank, as surviving executors of Peter Brown, on account of a certain annuity of

931., to which Zachariah Brown was entitled under the will of their testator-that the said executors should either admit assets sufficient to pay all that was due from them in respect of that annuity, or should account for the personal estate of Peter Brown received by them—that Ann Bircham, William Foster, and William Unthank, might be decreed to pay what should be found due from them on account of the annuity of 931.—further, that an account might be taken of what was due and owing to the plaintiffs respectively on account of their respective annuities purchased of Zachariah Brown, and charged by him on the annuity of 931.; and that out of the arrears and growing payments of the said annuity of 937. a year, the plaintiffs might be respectively paid and satisfied, according to their priorities, what should be found due to them on their said several annuities, and the costs incurred in recovering the same; and, lastly, that Ann Bircham, William Foster, and William Unthank, might be restrained from paying the arrears or growing payments of the annuity of 937. a year, or any part thereof, to the defendants, Zachariah Brown and Joseph Hall, or any of them, or to any

other person than the plaintiffs, till they, the plaintiffs, should have been satisfied all their arrears of their said respective annuities.

For this purpose, the bill set out with stating an indenture, bearing date on the 19th of December 1808, and made and executed by and between Zachariah Brown on the first part, Charles Martin Demages of the second part, William Bircham of the third part, and the plaintiff, William Dearle, of the fourth part. That deed recited, that Zachariah Brown was, under and by virtue of the last will and testament of his late father, dated the 11th of September 1794, entitled for his life to the yearly annuity of 931, issuing out of a moiety of Peter Brown's residuary estate, and which was then paid to him by Ann Bircham, William Foster, senior, (since deceased), William Foster, the younger, and William Unthank, the executors and executrix of the said Peter Brown; that Zachariah Brown had agreed, in consideration of the sum of 2041., to sell to the plaintiff an annuity of 371. a year during the natural life of him, Zachariah, and that the payment of the same should be secured by the covenant and warrant of attorney of Zachariah Brown, and also of Charles Martin Demages, and William Bircham, who had jointly and severally agreed to become sureties for him; and that, in pursuance of that agreement, Zachariah Brown, Charles Martin Demages, and William Bircham, had executed such warrant of attorney. After these recitals, the indenture went on to witness, that, in pursuance of the said agreement, and of the sum of 2041. paid to the said Zachariah Brown, he, Zachariah Brown, and Charles Martin Demages, and William Bircham, did for themselves, executors and administrators, jointly and severally, covenant with William Dearle, his executors, administrators, and assigns, that they, the said Zachariah Brown, Charles Martin Demages, and William Bircha, their heirs, executors, or administrators, or some or one of them, should pay, or cause to be paid, unto the plaintiff, William Dearle, his executors, administrators, and assigns, during the term of the natural life of the said Zachariah Brown, one annuity of 371., free of and clear from all taxes, charges, and

deductions, by equal quarterly payments, on the 19th of March, the 19th of June, the 19th of September, and the 19th of December, in each and every year.

The indenture then further witnessed, that, in pursuance of the above-mentioned agreement, and for the further consideration before stated, and for the better and more effectually securing the payment of the aforesaid annuity, he, the said Zachariah Brown, granted, bargained, sold, and assigned, unto the plaintiff, William Dearle, his executors, administrators, and assigns, all and singular the said yearly sum or annuity of 981. and all arrears thereof, yearly arising or growing as aforesaid, and to which he, the said Zachariah Brown, was entitled for his life, under the will of Peter Brown, deceased, to have, and take all the interest, dividends, and proceeds, of the aforesaid stocks or sums, and all other the premises thereby assigned or expressed, and intended so to be, unto and by the said William Dearle, his executors, administrators, and assigns, in as ample and beneficial a manner, as Zachariah Brown was then entitled to the same; but nevertheless, upon trust, to permit and suffer the said Zachariah Brown, and his assigns, to receive and take the same, until default should happen to be made, for the space of twenty-one days, in payment of some quarterly payment of the said annuity, or some part thereof, at or on the days or times aforesaid; and upon further trust, in case any quarterly payment of the said annuity, or any part thereof, should happen to be in arrear, or unpaid, for or by the space of twenty-one days next after any or either of the days or times aforesaid, then, and so often, that William Dearle, his executors, administrators, or assigns, should receive, and take the said thereby assigned interest, dividends, and proceeds, and should thereout, in the first place, retain, reimburse, and satisfy to himself, and themselves, the costs of, or attending receiving the same, or otherwise attending the performance of the trusts thereby declared; and in the next place, should thereout retain, reimburse, and satisfy to himself or themselves, the said annuity, or so much thereof, as should or might be then in arrear, and should pay, or otherwise permit, and suffer him, the said Zachariah Brown, or his

assigns, to receive and take the residue or surplus thereof, if any, to and for his and their own use and benefit. This declaration of trust, was followed by a proviso for the repurchase of the annuity.

A memorial of this indenture, and of the warrant of attorney mentioned in it, was duly enrolled.

The bill next stated an indenture bearing date on the 26th September, 1809, and made and executed by, and between Zachariah Brown, of the first part, William Bircham, of the second part, and the plaintiff, Caleb Sherring, of the third part, by which (after reciting, that Zachariah Brown had contracted to sell an annuity of 271. during his own natural life to the plaintiff, Caleb Sherring, and that it had been agreed, that the same should be secured by the covenant and warrant of attorney of Zachariah Brown, and William Bircham, as his surety, and that the said Zachariah Brown, and William Bircham, had, for that purpose, jointly and severally executed a warrant of attorney), it was witnessed, that in pursuance of the said agreement, and in consideration of the said sum of 150l., they, the said Zachariah Brown, and William Bircham, did, for themselves, their heirs, executors, and administrators, jointly and severally, covenant to pay, or cause to be paid, to Caleb Sherring, his executors, administrators, and assigns, from thenceforth, during the natural life of the said Zachariah Brown, one annuity of 271., free and clear of, and from all taxes, charges, and deductions, by equal quarterly payments, on the 26th of December, the 26th of March, the 26th of June, and the 26th of September; and it was likewise thereby further witnessed, that in further pursuance of the said agreement, and for the more effectually securing the payment of the aforesaid annuity, Zachariah Brown granted, bargained, sold, and assigned unto the plaintiff, Caleb Sherring, his executors, administrators, and assigns, the above-mentioned yearly sum or annuity of 931., and all arrears thereof. This assignment was expressed in nearly the same words, and was upon the same trusts as that which we have already stated to have been made to William Dearle. A memorial of this second indenture, and of the warrant of attor

ney, mentioned in it, was likewise duly enrolled.

The annuity of fl. was regularly paid, up to the 19th of June, 1811; and that of 271., up to the 26th of June, 1811. From these respective dates, both annuities were in arrear.

The bill then aileged, that frequent applications for payment had been made to Ann Bircham, William Foster, and William Unthank; that they had refused to make any payment to the plaintiffs; and that they had not for some time satisfied the annuity of 93l., but had considerable arrears thereof in their hands. It further stated, that the defendant, Joseph Hall, pretended that Zachariah Brown, had, by deed duly executed, assigned to him, for valuable consideration, the whole of the annuity of 931.; and it charged, that the conveyance to Hall, if any such was executed, was in date long posterior to the deed under which the plaintiff claimed'; and, though Hall pretended that he gave notice on the 20th of March, 1812, to the executors of Peter Brown, to pay the 931. a year to him, whereas the plaintiffs gave no such notice to the persons in whom the legal interest of the fund was vested, till the 17th of October, 1812, yet, that the plaintiffs ought not to be prejudiced by the prior notice given by Hall, if such notice was in truth given. Another charge was, that Hall did not, before he completed his alleged purchase of the annuity of 931. a year, make, or cause to be made, any inquiries of the executors of Peter Brown, for the purpose of ascertaining whether they had received any previous notice of any incumbrances affecting the funds, out of which the annuity was to be paid-that it was incumbent on Hall, and those employed by him, before he completed his purchase, to have searched, or caused search to be made at the proper offices, for the purpose of ascertaining whether these were any prior incumbrances affecting those funds; that if such search had been made, Hall would have ascertained, that the plaintiffs were entitled respectively to their annuities of 371. and 271., granted out of, and received by Zachariah Brown's yearly annuity of 937., and that Hall, or those acting for him, were guilty of laches, in

surety, Demages, in an action upon the covenant in the deed of December, 1808, and had compelled him, as such surety, to pay the arrears of the annuity for one year and three quarters, up to the 19th of March, 1813.

The present bill was filed on the 7th of June, 1819. A former bill had been dismissed for want of prosecution. Under these circumstances, the question was, whether Dearle and Sherring were entitled to have their annuities satisfied out of the fund, or whether Hall alone was entitled to it.

Mr. Sugden and Mr. Phillimore appeared for the plaintiffs.

Mr. Horne and Mr. Barber, for Hall.
Mr. Roupell, for the Trustees.

For the plaintiffs the argument was, that, as there was no fraud in the transactions, the securities, which were prior in point of time, must prevail over the posterior. How could the rights of Dearle and Sherring be altered by their not having given the executors notice of the assignments to them respectively? Why were they bound to give notice? Of equities the prior must prevail. Indeed, in the absence of fraud, priority gives equity. No laches could be imputed to the plaintiffs for not having given notice which they were not bound to give; nor could their legal or equitable rights be affected by proceedings between the trustees and strangers. Hall was much more liable than they were to the accusation of negligence. If he had searched at the Enrolment Office, he would have ascertained the existence of the plaintiffs' annuities.

For the defendant, Hall, it was insisted, that, though the plaintiffs were not bound to give notice to the executors, yet notice was necessary to perfect their title; and if they did not choose to give notice, they were satisfied with an imperfect title, and must submit to all the hazards attending such a course of procedure. The plaintiffs were guilty of gross laches in not perfecting their title; the consequence of that laches was, to enable Brown, in the eyes of all mankind, to deal with the fund as the absolute owner, unburdened with incumbrances: Who, then, was to bear the loss occasioned by Brown's fraudulent conduct? Hall, indeed, had not searched at

the Enrolment Office: but what was there to induce him to make any such search? Was the purchaser of every species of property to search there, in order to find whether it was charged with annuities? Hall had an assignment from the equitable owner; the executors of the legal owner informed him, that the assignor was the person entitled to the fund during his life, and that they would pay the dividends to the assignee: What more could the purchaser do, or require? It was admitted on both sides, that the case was new, and that there was no authority exactly in point.

But an unreported case of Wright v. Damer was referred to, as shewing what was the bearing of the Lord Chancellor's opinion on the subject.

July 1-The Master of the Rolls stated his opinion to the following effect:

This is a case of some novelty; and as the bar has not furnished me with any decisive authority on the subject, I wish that any thing I may now say should be considered, not as my final opinion, but merely as a statement of the light in which I at present feel disposed to view the ques tion.

The bill is filed by persons claiming dis tinct annuities, of which one amounts to 37., and is claimed under an instrument dated 9th of December, 1808; the other is an annuity of 271., arising under an indenture of 26th September, 1809. For the former of these the purchaser paid 2047., and for the latter the purchaser gave 150l. Both were granted by Zach. Brown, These two persons now make application to the Court, praying that an account may be taken of what is due from the executors of Peter Brown in respect of Zachariah Brown's life interest in a moiety of the tes tator's residuary estate, and that the arrears and growing payments of the dividends of that moiety may be applied in discharge of their annuities. One of the defendants is a subsequent purchaser, without notice, and for valuable consideration, of the whole of Brown's interest. Here, then, we have two plaintiffs asking the assistance of a Court of Equity in a case where the decision of that court must specify on which of two innocent purchasers a certain loss shall fall. This is always a case of difficulty; and the question in dispute is, whether the