the parties to extinguish the debt, there would have been some communication with the trustees of Mrs. Drewe's marriage settlement. The Vice Chancellor deemed the case one of considerable difficulty. His final opinion was as follows: Vice Chancellor.-The case of Chave v. Farrant, on which the counsel for the defendant have relied principally, has no application to the question now before the Court. It was assumed in the argument, that, in the settlements made in that case by the debtor upon his daughters, to whom the debt was due, it was probably stated that the marriage portions were advanced by him from natural love and affection. This assumption, however, is not justified by the report, but, on the contrary, is inconsistent with it for there, the Master of the Rolls says, "Upon looking into the settlements, I find nothing from which any inference can be drawn, as to the intention of the parties." Now, in looking into the deed of gift of 1797, I find that which affords strong inference, that the settlement made by it was not intended to be in satisfaction of a debt due from the estate of the father. This deed was executed within a short time after the father's death. The gift is a personal gift from the son: the debt was a debt due from him as executor of his father. Every part of the deed speaks of the gift as proceeding from natural love and affection; and there is nothing in it which states or implies any different purpose. There being no authority that will justify me in presuming, that the gift was made with a different view from that expressed in the deed, I cannot judicially hold it to be a satisfaction of the debt due to the plaintiffs under the marriage settlement of 1745-though, morally speaking, my conviction is, that it was intended as a satisfaction. If the parties entitled had been persons sui juris, I would have presumed satisfaction of the debt, from the length of time which clapsed, without any claim or demand being made. But here, the Court has to deal with infants and a married woman; and against them I cannot give the defendant the benefit of the length of time. The case, however, is not one in which the plaintiffs ought to recover their costs. A lessor may sustain a bill of interpleader againt his landlord, the claim against the legal title of the landlord arising out of a transaction, to which the landlord was a party: It is no objection to such a bill of interpleader, that he has taken a bond of indemnity from his landlord. In 1805 Pearson bought a reversionary interest in certain lands from Mr. and Mrs. Minifie. In 1810 this interest took effect in possession. Baines, who was tenant of the lands under a lease granted by the Court, took a bond of indemnity from Pearson, and paid rent to him for several years. In the mean time Mr. and Mrs. Minifie claimed to be entitled to the property, but took no steps to assert their alleged right till 1825, when they filed a bill. Before that time Baines, apprehending that Pearson was likely to become insolvent, refused to pay the rent to him any longer, and ultimately filed a bill of interpleader against him and Mr. and Mrs. Minifie. Mr. Horne appeared for the plaintiff'; Mr. Beames, for Mr. and Mrs. Minifie. The defendant objected, that this plaintiff was not entitled to file a bill of interpleader for two reasons: First, because he stood to Pearson in the relation of lessor and lessee, and had, by repeated payments of rent, acknowledged him as his landlord. Secondly, on account of the bond of indemnity which he had taken from Pearson. On the one hand, Mr. and Mrs. Minifie alleged, that taking that bond and paying rent to Pearson, were acts of collusion with one of the persons setting up a legal title, which precluded a party from claiming the use of a court of equity, by a bill of interpleader. On the other hand, Pearson insisted, that Baines, having taken the bond of indemnity, was bound to rely upon it, and was not at liberty to pay the rent to any other person, or to institute any proceedings for protection against any supposed liability, which he might incur by paying the rent to the individual by whom the bond had been given. Vice Chancellor.-The bond constitutes no objection to this bill. The collusion between Pearson and Baines has ceased; and it is a very good ground for filing a bill of interpleader, that the bond of indemnity, which would have saved the tenant harmless between the claims of the adverse parties, is likely to become nugatory by reason of the apprehended insolveney of the obligor. I have long thought, that if the party having the legal title to land, asserts that legal title, it is not for the tenant to resist it but it is for those who claim under an equitable title, to file their bill. Such was the old rule; and in my opinion, it would have been well, had that rule never been departed from. But a contrary doctrine has prevailed; and it is now too late to struggle against the principle which has been introduced. (1) A testator, the owner of plantations in Jamaica, having been, for many years previous to his death, engaged in a course of dealing with a commercial house at New York, who furnished the necessary supplies to his estates, and were to reimburse themselves out of the produce consigned to them, one of his acting trustees, who, after his death, had the management of the estates, continues the same course of dealing, and on passing his accounts annually, in an amicable suit instituted in the island, has credit for (1) See the following cases: Dungey v. Angove, 2 Ves. jun. 301; and 3 Bro. Smith v. Target, 2 Anstruther, 529. sums due in respect of the supplies so furnished, as being personally charged therewith; he afterwards dies insolvent, leaving a balance due to the American house, made up partly of sums for which he had had credit in passing his accounts, and partly of sums for which he had not so had credit:-Held, that the New York house has a right to claim the payment of the whole balance against the produce of the estate, whether existing in the hands of the surviving trustees, or under the protection of the Court of Chancery in England. To a suit for that purpose, the personal representatives of deceased trustees, who had acted, are necessary parties, unless there be a waiver of all personal remedy against the trustces, in respect of the produce come into their hands. By an order made in the cause, it was referred to the Master to inquire and state to the Court, whether, in respect of the supplies made by the plaintiff, for the use of the estate of John Tharp, and for which credit had been allowed in the accounts between the estate and the late William Green, the plaintiff was entitled to claim payment from the estate; and whether, in respect of the supplies made by the plaintiff for the use of the estate of John Tharp, during the life of William Green, for which no credit had been allowed to William Green in the accounts between him and the estate, the plaintiff was entitled to claim payment from the estate. The Master found, among other things, the following facts:-John Tharp was, in the year 1794, seised of certain plantations and estates in Jamaica. In that year his nephew, Alexander Campbell, being in Jamaica upon the plantation where his uncle resided, stated to him, that he had it in contemplation to form some connexion with a commercial house in New York; and John Tharp then informed him, that, if he did go to New York, and form any such connexion, he would send an order to that house for all the supplies wanted for his that he would consign to estates in Jamaica; them a sufficient quantity of rum, the produce of his estates, to pay for the same; and that he would allow them the usual mercantile commission. In consequence of that conversation Alexander Campbell went to New York, where he formed a connexion in business with the plaintiff in April 1795, under the firm of Lewis Simond and Company; and in conformity to what had passed between Alexander Campbell and John Tharp, the house of Lewis Simond & Co. did, from time to time, as ordered, ship various supplies for the use of the estates of John Tharp, receiving in return, from time to time, consignments of rum, towards payment of the same; and they continued to make shipments in consequence of orders received from William Green, attorney and agent to John Tharp, down to the time of the death of the latter gentleman in 1804. John Tharp, by his last will and testament, bearing date the 13th May 1801, gave and bequeathed unto Simon Taylor, William Miles, John Miles, Sir Gilbert Affleck, William Green, George Hibbert, Richard Dashwood, and Charles Oswin, their heirs, executors, administrators, and assigns, all his plantations, with their appurtenances, and all other his estate and effects, upon the trusts therein mentioned; and as to his real estate, upon trust to improve it to the best advantage; and after payment of the expenses attending the same, to apply and dispose of the rents and profits thereof in the manner therein mentioned; and after reciting in his will, that it might happen in the event of his decease, that a number of years might elapse before his grandson J. Tharp, should attain the age of twenty-four years, by which means the accounts respecting the management of his estate might become very voluminous and intricate, and occasion great inconvenience to the trustees of his grandson ;-in order to obviate this difficulty as much as lay in his power, he directed, immediately after his death, an amicable bill to be filed in the Court of Chancery in Jamaica, at the expense of his estate, in order to pass the accounts before a Master of the court annually, whose report from time to time should be a sufficient indemnity and release to his executors and trustees, so far as respected their actions and transactions therein reported, and should be binding upon his grandson and all persons entitled to his residuary estate. He also appointed his trustees executors of his will. By a subsequent codicil he appointed Simon Houghton Clarke to be a trustee and executor, and revoked the nomination of Charles Oswin to be a trustee and executor. Upon the death of John Tharp, George Hibbert and Sir Simon Houghton Clarke proved his will and codicils in the Prerogative Court of the Archbishop of Canterbury, while Simon Taylor and William Green proved the same in Jamaica; and William Green, who had previously acted as the manager of the plantations, continued in the possession and management of the estates in Jamaica till the time of his death in February 1812. After the decease of William Green, Simon Taylor entered into possession of the estates. The Master further found, that, after the death of John Tharp, William Green from time to time gave orders to Messrs. Simond & Co., to furnish lumber and provisions for the use, and on account and risk of the estate; that Messrs. Simond and Co. accordingly continued to supply the timber and provisions so ordered, for the use of the estates, in the same manner as in the lifetime of J. Tharp; that they also continued to receive part of the produce of the plantations, and to dispose thereof on account and risk of the testator's estates;that such dealings and transactions continued until 1811; that a considerable balance was then due to the firm of Lewis Simond & Co.; and that the plaintiff was now entitled to such balance. With respect to the course of dealing between the parties, the Master found, that all the supplies furnished by Lewis Simond & Co. were on the account of J. Tharp in his lifetime, and afterwards on the account, credit, and risk of his estate; that during the lifetime of J. Tharp, all invoices and accounts relative to the dealings and transactions were headed and entitled-for or on account and risk with J. Tharp, esq.; that after his decease the subsequent invoices and accounts relative to the dealings and transactions were headed and entitled "On account and risk, and in account with the estate of John Tharp, esq. deceased;" that a balance of 23,108 dollars 58 cents were due to the plaintiff's house, on the 31st of December 1811; that the balance remained unpaid during the latter period of the management, by William Green, of the estates of J. Tharp, by reason of the American Embargo and Non-intercouse Act, which interrupted the shipping of the pro duce of the late Mr. Tharp's plantations, to Lewis Simond & Co.; and by reason of the subsequent refusal of the attorney, trustees, and executors of J. Tharp, deceased, to pay the balance, and their excluding Simond & Co. from having recourse to legal remedies, during the late war with America, upon the plea, that the New York house were alien enemies. The Master further found, that the house of Lewis Simond & Co. had various transactions with William Green, previous to his death, in his individual capacity, which transactions were kept distinct from those which related to the estates of J. Tharp; that Simond & Co. had for several years prior, and down to the decease of William Green, various dealings with him as the attorney or agent for other plantations in Jamaica, for which they furnished supplies, receiving produce in return;-that soon after the decease of the testator, an amicable bill was instituted in the Court of Chancery of Jamaica, by John Tharp, the grandson, who was beneficially entitled under the testator's devises and bequests, against Simon Taylor and William Green, for the purposes in the will mentioned; that the accounts of William Green, as the manager of the estates, were from time to time passed before the Master of the said Court ;—that William Green, in passing his accounts, took credit for payment, which had been made by him to the house of Lewis Simond & Co., and exhibited from time to time such accounts as were paid, as his vouchers for such payments, and also the accounts which were not paid, in order to show the particulars of his transactions, and the sums he was then liable to pay to the house of Lewis Simond & Co.; but the accounts were not allowed by the Master, as being charged against the estates, but against William Green personally; and that such accounts of William Green had been passed in Jamaica up to the time of his decease;-that the plaintiff was not, nor was any other person then engaged with him as a partner in his commercial house, a party to the said cause; and that it did not appear that any notice was given to them of the suit, or of the manner in which the accounts of William Green were passed. The report went on to state, that in 1817 a petition in the suit in Jamaica, had been presented by Simond & Co. for payment of their demand out of the produce of the plantations. That petition was dismissed. From the order of dismissal the petitioners appealed; but the appeal was afterwards abandoned. The Master further certified, that the accounts of William Green, passed in Jamaica, had not been laid before him for the purpose of showing what had been allowed to William Green, in respect of the supplies made by the plaintiff, for the use of Tharp's estate; that it did not appear to him, that the plaintiff had any notice of the proceedings in the office of the Master in Jamaica, or ever consented, with respect to any claim which he might have against the estates of the testator for supplies furnished by him, to look to William Green personally, for the payment of what was due on account thereof. And the Master was of opinion, that the plaintiff was entitled to claim payment from the estates of the testator J. Tharp, in Jamaica, for the supplies made by him for the use of the estates, for which credit had been allowed between the estate and William Green personally; and that the plaintiff was also entitled to claim payment from the estates, for supplies made by the plaintiff for the use of the estate during the life of William Green, and for which no credit had been allowed to William Green in the accounts between him and the estate. To this report the defendants excepted, on the ground that the Master ought to have certified, that the plaintiff was not entitled to claim payment from the estate, in respect of any supplies furnished for the use of the estate, except so far as the said William Green, if he were living, and had satisfied the said demand of the plaintiff, would be entitled to claim such payment. support of the exception; Mr. Hart was in support of the report; The argument, in support of the exception, was, that Simond & Co. did not, by furnishing supplies in the manner above stated, acquire a lien on the estates, or on the produce of the estates generally; that their lien was confined to the amount of the produce consigned to them; and that, if they allowed a balance to accumulate against themselves, they must be taken as having acted on the individual responsibility of the persons who gave the orders. They could not, by the mode of heading their accounts and invoices, acquire a remedy against the estate, which the nature of the transaction did not itself give them. At the utmost they could, as between them and the estate, only stand in the situation of Green, and claim, out of the produce, as much of their demand, as he, if he had paid it, would now be entitled to have repaid to him. At all events, the plaintiff could not extend his claim to that portion of the balance for which he had had credit on passing his accounts. The estate had been already charged with it once; why was it to be again charged with the same sum? If Simond and Co. had regularly enforced the payment of what was due to them, without permitting a large balance to accumulate, Green would not have had the means of causing loss to the estate. On the contrary, it was insisted, that the plaintiff had nothing to do with what passed in the account in Jamaica. He was no party to the passing of Green's accounts there, and could not be bound by them in any respect. All the trustees, and not Green alone, were liable to him for the whole of his demand, so far as they had produce in their hands applicable to the payment of it; and for this purpose, the rights of the plaintiff could not be varied by the surplus produce having been remitted to England, and paid into court. far as regarded the present demand, the possession of the Court, and the possession of the trustees, was one and the same thing. So Vice Chancellor.-The bill is filed by Lewis Simond, the surviving partner of the house of Simond and Co., at New York, against several defendants, who, under the will of Mr. Tharp, are either trustees of, or interested in, the plantations of that testator in Jamaica. The bill originally prayed, that the demand of the plaintiff, in respect of supplies of lumber and provisions to the estates in Jamaica, might be paid out of Mr. Tharp's assets. When the subject VOL. IV. CHANC. came before the Court, I suggested that there was a misapprehension of the nature of the case; because, as those supplies were furnished to the plantations subsequently to Tharp's death, there could not be a demand for payment of them out of his assets. The bill was then amended, and prayed substantially, that the demand might be paid, not out of the assets of the testator, but out of the funds in court, or in the hands of the trustees, which were the result of the produce of the plantations. The balance, which the plaintiff claimed, was distinguished into two parts. Tharp, by his will, had provided, that an amicable bill should be filed in the Court of Chancery in Jamaica, for the purpose of annually passing the accounts of the trustees, and that the accounts so passed should be considered as finally settled; and his object was, thus to relieve the trustees from the responsibility of the long continuance of the trust, they being trustees for a grandchild, whose interests were not to become absolute till he attained the age of twenty-four or twenty-five. Green continued from the testator's death, in 1805, till his own death, in January 1812, in possession of the estate, as acting trustee and manager, and in that character gave orders to the plaintiff's house to furnish the usual supplies. They accordingly continued to send provisions and lumber to the plantations, as they had done during Tharp's lifetime; and from time to time they had rum remitted to them, which, under the agreement of the parties, was to be sold for their reimburse ment. Now Green, in passing those annual accounts in that suit, took credit, not only for what he had paid to the plaintiff's house, but for the whole amount of their demand, though unpaid. For a part of the balance claimed, therefore, an allowance has been made by the Master in Jamaica to Green, the acting trustee. With respect to the other part of the balance, no claim was carried in by Green, and the estate has never been debited with that part of the demand. I therefore referred it to the Master to inquire, whether, with respect to both those balances, the plaintiff was at liberty to make a demand against the trust estate; or whether he was to seek his satisfaction from the personal assets of Green. G |