you have no right or interest under it, you have nothing to do with my gale, and I shall convey it to the defendants;" and he accordingly conveys the estate to the defendants. No possession is taken under the agreement for several years, when it is taken by persons who had entered under the first agreement. But can it be said that these persons can be replaced in the same situation? There is first a conveyance of the legal estate valid upon the face of it, and in order to succeed, the plaintiffs must first make out their right to have that conveyance delivered up to be cancelled. They must, in the second place, obtain a decree for specific performance against Elisha Matthews; but he is not a party to the suit, and if he were, he might say, "the first agreement is utterly void, and if you had insisted on it at the time I gave you notice that I should treat it as void, I could have proved it to be so, and that you could claim no benefit whatever under it." Besides this, he might say, "I have treated it as a void agreement by entering into another agreement with the defendants and by conveying the gale to them."

Ten years after the repudiation of the contract by *Elisha Matthews the plaintiffs claim to be entitled to have his conveyance treated as nothing, without asking that it may be delivered up to be cancelled, or praying, as against Elisha Matthews, the specific performance of the agreement, or even making him a party to the suit. The defendants, parties to the second agreement, may have done all sorts of acts and entered into all sorts of arrangements with respect to this matter on the faith of that deed, which they were perfectly well aware that the plaintiffs had taken no steps whatever to set aside. It was the duty of the plaintiffs, as soon as they knew of the second contract, at once to have filed a bill to set it aside, and to have the first agreement specifically performed. I think it is unneces sary to go into any of the other circumstances beyond this, for if the matter had rested only in contract with the plaintiffs, and there had been no dealings between Elisha Matthews and the defendants, if this suit had been solely against Elisha Matthews himself, who had ten years previously given the plaintiffs notice that he repudiated the contract, and had insisted that there was no contract binding upon him, I should not, at that distance. of time, have specifically enforced it.

The result is, that the plaintiffs' right, if any, is confined to the recovery of the 77. 10s. but that is also barred by time; if not, they may bring their action for it. I am of opinion therefore, that the principal part of this bill entirely fails, and that the only relief the plaintiffs are entitled to is under the third paragraph of the prayer, which prays a declaration of the rights,

ALLOWAY v.

BRAINE.

[*582]

254

ALLOWAY

ť.

BRAINE.

1859. March 22.

Rolls Court.

ROMILLY,
M.R.

[583]

[ *584 ]

1859. CH. 26 BEAV. 582.

and I am prepared, if the plaintiffs wish it, to declare that the defendants are entitled to one undivided fourth part in the Wigpool Mine, and with that exception, the whole of the plain

tiffs' bill must be dismissed with costs.

AMES . MANNERING.

(26 Beav. 583-585.)

In 1858, the

On the death of a mortgagor in 1833, his widow (who was entitled to dower) took possession of the mortgaged estate, with the consent of the co-heirs and she paid interest on the mortgage. mortgagee instituted a suit to realize his morte, in which it did not appear that any interest had been paid by one of the co-heirs during the interval: Held, that the payment of the interest by the widow prevented the statute running, for either such co-heir was himself barred, or the payment of interest had been made on his behalf. ON the 15th of April, 1829, James Mannering created an equitable mortgage of some gavelkind property. He died in April, 1833, leaving Elizabeth Mannering, his widow, and three sons, James, George and Charles, his gavelkind heirs. Charles died about seventeen years ago, leaving two daughters, Eliza and

Julia.

This was a suit by the mortgagee against the widow and the two surviving sons, and the daughters of Charles, to realize the mortgage security.

By the decree made in June, 1858, the following enquiries

were directed:

An enquiry who had been in the receipt of the rents and profits of the property since the date of the mortgage, namely, the 15th April, 1829, or in possession of the premises, and

under what circumstances.

An enquiry what payments had been made in respect of interest on the equitable mortgage, and by whom, and by whose order or authority, and at what times and under what circumstances.

The chief clerk found that the intestate was in possession until his death, in April, 1833, since which time Elizabeth Mannering had been in possession thereof, under the following circumstances:

Elizabeth Mannering took possession of the premises *by the consent and with the approbation of her sons, James, George and Charles (deceased); for it appeared that George and James had, for several years, lived with their mother on the premises.

He also found, that interest on the equitable mortgage had been paid to the plaintiff by Elizabeth Mannering, from the death of the intestate, James Mannering, in April, 1833, to the month of September, 1844, but by whose order or authority, and at what times, or under what circumstances in particular, there was no evidence to show, further than that Elizabeth Mannering,

being the widow of the intestate, and entitled to dower, entered into possession of the mortgaged premises, and kept down the

interest on the mortgage.

He also found that George had paid interest, the last payment. being in 1850, and that James had paid 11. for interest in 1846. The case came on for further consideration, when

Mr. Biron, for the two daughters of Charles, argued, that, as against them, the claims of the mortgagee were barred by the Statute of Limitations (1), no part of the principal or interest. having been paid by Charles or his daughters, and no acknowledgment having been given since the intestate's death, in 1833.

That the widow's claim was paramount to the mortgage, and that she was not liable to pay any part of the interest, and that, therefore, such payment by her was to be treated as the voluntary

payment of a stranger.

THE MASTER OF THE ROLLS:

I am of opinion that the daughters of Charles are bound by these payments. The widow must be regarded as being in the position of a stranger, or the agent of the infants or the tenant of the mortgagee. The daughters are, therefore, either barred themselves or, as against them, interest has been paid on the mortgage.

STRINGER . HARPER (No. 2).

(26 Beav. 585-587.)

The costs of a suit to administer both real and personal estate, and to ascertain the rights to both, were formerly payable, primarily, out of the personal estate.

[By the modern practice the costs of administration proceedings so far as they are increased by the administration of the real estate are to be borne by the real estate : see In re Jones, Elgood v. Kinderley, [1902] 1 Ch. 92, 71 L. J. Ch. 6, 85 L. T. 608.-O. A. S.]

IN RE MEDEWE'S TRUST.

(26 Beav. 588-593; S. C. 28 L. J. Ch. 891; 5 Jur. N. S. 421; 7 W. R. 319.) A security given by a customer to his bankers for the balance "which shall or may be found due on the balance of" the account: Held, to cover the existing balance only, and not to be a continuing security for the floating balance.

MR. MEDEWE kept the following three accounts with his bankers, Messrs. Alexander:

1st. His private account.

2ndly. His partnership account in the name of himself and Mr. Brooke.

3rdly. His executorship account in the name of himself and Mrs. Lucock.

(1) 3 & 4 Will. IV, c. 27, s. 40.

[ 585 ]

1859. March 22, 23, 24.

1859.

Feb. 28. March 1.

Rolls Court. ROMILLY, M.R.

[ 588 ]

256

In re MEDEWE'S TRUST.

[ *589 ]

1859. CH. 26 BEAV. 588-589.

In January, 1857, these three accounts were considerably overdrawn, and the bankers required some security.

Accordingly, on the 12th of January, 1857, Mr. Medewe gave the bankers his deed poll, which, after reciting the three accounts, and that "there is a considerable balance due" to Messrs. Alexander "on the said several accounts," and that Messrs. Alexander "having required security for the balance Idue on the said several banking accounts," Medewe had agreed to charge his estate after described (subject to the incumbrances)" with the payment of the balance of all the said several accounts, limited to the aggregate sum of 3,000l. as hereinafter contained: and whereas Medewe and Brooke have also agreed to execute a joint and several bond for further securing the balance of their banking account, and Ann Lucock hath also agreed to deposit with Alexander the title-deeds relating to Medewe to execute a joint and several bond for further securing certain hereditaments at Grundisburg belonging to her, and with the balance of their said executorship *account:" Medewe then charged his estate called Witnesham Hall with the payment to Alexander "of the three several sums of money which shall or may be found due on the balance of the said several accounts for principal, interest, commission and other usual and lawful bankers' charges, not exceeding in the whole the aggregate sum of 3,0001. sterling, subject to the existing mortgages (stating them). It then proceeded thus: And Medewe hereby covenants with Alexander that he will, within three months after demand, pay unto Alexander "such several sums as may be due on the said several banking accounts as aforesaid, not exceeding in the whole the aggregate sum of 3,000l."

On the same 12th of January, 1857, Mrs. Lucock and Medewe executed a joint bond to Messrs. Alexander for 600l., reciting the executorship account, and that "there is a balance of 3001. or thereabouts now due" from them to Messrs. Alexander, who having required security, Mrs. Lucock had agreed to deposit certain title-deeds. The bond was to be void, if the obligors paid Messrs. Alexander "all such sum or sums of money as now are or which shall from time to time be or become due and owing on the said banking account," not exceeding 3001. And it was declared, that the deeds were deposited for better securing the balance of the said banking account.

The three accounts were balanced on the 12th of January, 1857, when it appeared that 2,0211. was due to the bankers on the first account, 6521. on the second, and 300l. on the third, making, with the fractions, 2,9741.

The three accounts were afterwards continued, and sums were paid in and drawn out. In December, 1857, Messrs. Alexander obtained a judgment against Medewe *for 2,2341. in an action on the covenant contained in the deed poll.

In July, 1858, the mortgagees sold the Witnesham Estate under a power of sale, and there remained, after paying off the mortgages, a balance of 2,4991. Messrs. Alexander claimed, under the deed poll, to have this amount applied in payment of the balance due to them on the three accounts, which in November, 1858, was 2,5891. Medewe had, on the 19th of November, 1858, conveyed his property to trustees for his creditors, who resisted this claim, and the fund was, in consequence, paid into Court. Messrs. Alexander now presented a petition, praying payment to them of the fund in Court in discharge of their claims.

Mr. R. Palmer and. Mr. Prendergast, for the petitioners, argued that the security was for the floating balance which might, from time to time, become due to the bankers from their customers: Pease v. Hirst (1), Woolley v. Jennings (2).

That the covenant to pay, "within three months after demand, such several sums as may be due" on the banking accounts, clearly pointed to a future debt, and that the circumstance, of interest not being reserved from the date of the deed, showed that it was to commence at a future period and on a future debt; a circumstance which had been much relied on in Walker v. Hardman (3).

Mr. Lloyd and Mr. Lewin, contrà, argued, first, that *the liability under the covenant had wholly merged in the judgment; secondly, that upon the terms of the deed poll, the security was only for the actual balance at the time. They referred to 1 & 2 Viet. c. 110, s. 32, 2 & 3 Vict. c. 82.

Mr. Eddis for the mortgagees.

Mr. R. Palmer, in reply.

THE MASTER OF THE ROLLS:

I cannot hold that these words include future balances. The deed poll, after reciting "that there is a considerable balance due" on the three accounts, and an agreement to secure "the balance," goes on to charge the estate with "the three several sums of money which shall or may be found due on the balance of the said several accounts." In the words "shall or may" there is an element of uncertainty; the bankers and their customers had not agreed upon what the balance was, though it did 34 R. R. 343 (10 B. & C. 122). (3) 4 Cl. & Fin. 258; see the judgment, post, p. 259.

(2) 5 B. & C. 165.

R.R.

VOL. CXXII.

17

In re MEDEWE'S TRUST.

[ *390 |

[ *591 ]