The LORD CHANCELLOR (Jan. 21). This case depends on the true construction of the 42nd section of the act for the limitation of actions, 3 & 4 Will. 4. c. 27. The Vice Chancellor has decided that where there are successive mortgages, and arrears of interest for more than six years are due upon the first mortgage, an acknowledgment in writing that such arrears are due, signed by the mortgagor, will enable the first mortgagee to recover the whole amount of such arrears as against the second and subsequent mortgagees. As a reason for this decision, the Vice Chancellor apparently held that the words in the 42nd section, "the person by whom the same was payable," meant the person who was liable at law to pay the mortgage-money; that is, the mortgagor or his representative; and accordingly he considered the second mortgagee as not included within those words. This decision seems to me calculated to lead to very extraordinary and alarming consequences; for if it is well founded, the right of a man may, according to the statute, be entirely taken away by the act of another. If a second mortgagee is in possession, and the first mortgagee seeks to recover his principal and interest for twenty years by filing his bill for foreclosure or a sale, it seems impossible to deny the right of the second mortgagee to insist on the enactment; but, according to this decision, if the first mortgagee obtains at any time the acknowledgment of the mortgagor or his representative, this right of the second mortgagee will be defeated, and all the arrears will be recoverable against the second and subsequent mortgagees; that is to say, the mortgagor or his representatives, who may have no interest in the land (for the ultimate equity of redemption may be worthless) would be able to charge the estate anew with any amount of arrears of interest against the estate of the second and subsequent mortgagees. The Court is bound by every principle of judicial interpretation to find a construction of the statute which is not so inconsistent with natural justice. With very great consideration for the judgment of the Vice Chancellor, the vice of the decision appears to me to lie in the limited interpretation put by him upon the words "the person by whom the same was payable," which appear to me to include not only all persons who are legally bound by covenant to pay the money, but all persons against whom payment of the arrears may be sought to be enforced in any suit, and by whom therefore, as they have a right to pay the interest, interest may properly be said to be payable. Take the case of a legacy charged upon land, and the land then specifically devised, the devisee would not be personally liable to pay the legacy or interest, but he would be a person by whom the same was payable; for he would be entitled to redeem the lands devised. In fact, these words, so far from having the limited construction which the Vice Chancellor has put upon them, seem to me to have been selected for the very purpose of including not only everybody who is personally liable for the money, but everybody who, having an interest in the land, may be properly made a defendant in a suit for enforcing payment out of the land. If this be so, it follows as a necessary consequence, that it was not the intention, nor is it the effect of this section, to give to the mortgagor a statutory power to deprive a subsequent incumbrancer of the benefit of the statute, by means of an acknowledgment given to a prior incumbrancer-a construction which would be monstrously unjustbut to enact a plain and simple rule, that no person having a charge on land should recover more than six years' arrears of interest against any other person having an interest in that land without a memorandum in writing signed by the person having such interest. This appears to me to be the just interpretation of the 42nd section of the statute, and to make it consistent with the language of the 28th section. Therefore reverse the order of the Vice Chancellor, so far as relates to the arrears of interest on the mortgage of 1831, and declare that the plaintiff is entitled to recover interest for six years only immediately preceding the filing of the bill; and let the plaintiff pay such costs, other than the costs of the rehearing, as have been occasioned by the larger claim of interest. STUART, V.C. Jan. 16. } Re SAUNDERS'S ESTATE. Felony-Voluntary Settlement of Personalty by Felon before Apprehension · Forfeiture. In November and December 1860, A. committed acts, in respect of which he was, on the 8th of June 1861, taken into custody, and, on the 21st of the same month, convicted of felony. Prior to his apprehension, viz., on the 23rd of May 1861, he executed a voluntary settlement of personal estate belonging to him upon his wife and children:Held, that such settlement was fraudulent and void as against the Crown. By indenture dated the 23rd of May 1861, and made between Alfred Saunders, then resident at Melbourne, in Australia, of the one part, and John Browning and William Jones of the other part, Saunders conveyed and assigned all his real estate, and all his interest under the will of his father, whose estate was in course of administration in this suit, and all other his property and effects, to Browning and Jones, upon trust for the benefit of his wife for her life, and, after her death, upon trust for his children as therein mentioned. On the 8th of June 1861 A. Saunders was taken into custody, and on the 21st of the same month he was convicted of embezzlement and sentenced to imprison ment. By the law of Victoria embezzlement is felony. The acts of embezzlement for which A. Saunders was indicted consisted of appropriating to his own use monies of the corporation of Melbourne, and those acts were stated in the indictment to have been committed in the months of November and December 1860. A. Saunders's share of his father's estate was now standing in court to the credit of this cause. This was a petition by the trustees of the settlement of the 23rd of May 1861, praying for the payment of such share to them. The petition alleged that Saunders had, prior to his apprehension, offered and proposed to the corporation of Melbourne that, STUART, V.C.-The question is, whether the settlement of the 23rd of May 1861 was executed in order to defeat the rights of the Crown to the personal estate of the felon. If the dates mentioned in the indictment are correct and their being mentioned in the indictment must be taken as prima facie evidence that they are correct-the acts of embezzlement were committed before the date of the settlement. The petition also states an offer by Saunders to repay to the corporation of Melbourne the money which he had embezzled from them. This offer must have been made before the date of the settlement. I assume, therefore, that the acts of embezzlement were committed before the date of the settlement; and if the deed was executed in apprehension of a conviction, it was clearly fraudulent. think it was executed under such an apprehension. The petition must therefore be dismissed, so far as it seeks payment of the fund in court to the trustees of the settlement of the 23rd of May 1861. The costs of all parties must come out of the fund in court, and the balance be transferred to the Solicitor of the Treasury and the Assistant Paymaster for the time being. I Infant-Next Friend-Solicitor. A suit to administer the estate of a testator is instituted by a stranger on behalf of infants, without communication with the family, and contrary, as alleged, to their wishes, and no explanatory affidavit is filed, the next friend being the son and articled clerk of the solicitor in the suit and having the same address. On motion to restrain the next friend from proceeding with the suit, or for an inquiry,-Held, that an inquiry must be directed whether the suit is for the benefit of the infants, and if so whether the next friend shall be continued. This was a motion on behalf of the defendants that Sydney Mayhew, the next friend, might be restrained from taking any proceedings in the suit; or for an inquiry as to whether the suit was for the benefit of the infants; and if that inquiry was answered in the affirmative, that some other person might be appointed next friend. Edward Towsey, the testator in the cause, had been a solicitor, and died in 1857, and by his will left his property in fifths: one-fifth to his mother for life; onefifth to his sister-in-law Mary Ann Pryce; and the three-fifths to his three children (the infant plaintiffs), Jane Rosalie Towsey, Edward Towsey and Arthur Towsey, the eldest being now fourteen years old, and appointed Charles Groves and Mary Ann Pryce guardians of his infant children and trustees and executor and executrix of his will. The bill was filed, in July 1862, against C. Groves and M. A. Pryce, as the defendants alleged, without any communication with either of the parties, and contrary to their wishes and as they believed to those of the plaintiffs, the next friend, Sydney Mayhew, was the son and articled clerk of Alfred Mayhew, the solicitor in the cause, and his address was the same, and both father and son were strangers to the parties. The bill stated the facts, with regard to the will, death, &c., and alleged that the defendants had possessed themselves of the personal estate of the testator to a considerable amount; that they had sold the real estate, and received considerable NEW SERIES, 32.-CHANC. sums of money, and that the plaintiffs were desirous of carrying out the trusts of the will; and there was the usual charge as to papers and documents. The defendants put in an answer, whereby it appeared that Mary Ann Pryce had alone acted, and that there was no real estate; and in a schedule was set out the account relating to the estate. The answer also stated that the suit was instituted without any communication with the family, and contrary to their views and wishes, as the defendant Mary Ann Pryce believed, and that was repeated in an affidavit in support of the motion. There was also a cross-motion for the payment of the whole fund (admitted by the answer) into court, which was not now gone into. There was no affidavit on the part of the next friend. Mr. Glasse and Mr. Nalder, in support of the motion. The next friend, being the son of the solicitor in the cause, a stranger to the family, the bill filed without communication with them, and contrary to their wishes, and no explanation. whatever given, is sufficient to entitle the defendants to what they ask, added to which the suit should have been by administration summons. This case comes within the established rule of the Court, that a full explanation must be given where a suit is instituted without the direct authority of the parties. It is a case of a most suspicious kind, and it would be almost a matter of course to make the order asked, or, at all events, in the alternative. Mr. Southgate and Mr. Little, for the next friend. The answer of the defendant shews that this is a case where a suit is absolutely necessary. The account is very inaccurate, and the fact that the next friend is the son of the solicitor in the cause is not any ground for his removal. The motion is inconsistent and unusual, as it asks that if on an inquiry it shall be found that this suit is beneficial then that the next friend shall be removed. The father of the next friend was a personal friend of the testator for many years, and the bill was filed at the instance of friends of the family. The following authorities were cited— Fox v. Suwerkrop, 1 Beav. 583. KINDERSLEY, V.C.-This is a motion, on behalf of the defendants, or some of them, that Sydney Mayhew, the next friend of the infant plaintiffs, may be restrained from taking any further proceedings in this suit, or for an inquiry whether the suit is for the benefit of the infants; and if the finding should be in the affirmative, that the next friend may be removed, and another person appointed in his stead. [His Honour stated the facts.]-Now, one thing is obvious at the outset, that the interests of mankind require that encouragement should be given to suits instituted bonâ fide, on behalf of persons not sui juris, or capable of protecting themselves; at the same time, however, it is equally obvious that the greatest caution is necessary to prevent the institution of suits which are not bona fide, but improper. In the present case nothing is alleged rendering the interference of the Court necessary; although it does not therefore follow that the suit is an improper one. Mr. Alfred Mayhew, the solicitor in the suit, and ostensibly employed by the next friend, turns out to be his father, and it appears that Mr. Sydney Mayhew is either residing with him, or, at all events, has the same address, and was his father's articled clerk, if he is not so now. At all events, we have this: that he is an entire stranger to the defendants, and for all that appears, to the plaintiffs; and the defendants, or one of them swears, that the suit was contrary to their wishes. That the bill was filed without any communication with the plaintiffs, considering their youth, may be right enough; but in such a state of circumstances the least the Court expects is, that some explanation should be given on the part of the next friend. But how stands the case? There are these circumstances, which I must take to be true, because they are not contradicted; indeed, nothing whatever is stated as to the motive for filing the bill, no affidavit made, and no explanation whatever given on the subject. It is there fore a case of grave suspicion that it is not a suit for the benefit of the infants. Solicitors, as a body, stand as high in character as any other profession, but, of necessity, their pecuniary interest is all one way, and cases may, and often do, occur in which their duty and their interest conflict; and in a case of such suspicious circumstances as the present, I should expect some explanation, but none has been given. It may be that Mr. Sydney Mayhew employed his father ab initio; but it may also be that his father suggested the institution of the suit; an inference, therefore, is left to be drawn from this intentional silence. I will not at once infer that Mr. Sydney Mayhew is an improper person to be next friend, or that the suit is an improper suit; but what I shall do is, to direct an inquiry whether it is for the benefit of the infants that such a suit as this, or any suit, shall be instituted; and if it is beneficial, then whether Mr. Sydney Mayhew shall be continued as next friend; and, if not, that some other proper person be appointed in his stead; and in the mean time, that all proceedings in this suit be stayed. above-mentioned settlement, under 25 & 26 Vict. c. 108. s. 2, containing a statement (supported by affidavit) that the lands and hereditaments then subject to the trusts of the settlement were suitable for sale in numerous lots for building, and contained mines minerals and coal, the reservation of which out of the grants of the said lands would not lessen the value of the said lands for building purposes, but would by the separate sale of such mines minerals and coal be of great profit to the person beneficially entitled. The petition prayed that the trustees, or the survivor of them, or other the trustees or trustee for the time being of the said indenture, might be at liberty to exercise all or any of the trusts powers and authorities of the said indenture so as to dispose of the land and hereditaments then held under and subject to the trusts of the said indenture, with an exception or reservation of the coals mines and minerals in and under the same, and with or without rights and powers of, or incidental to, the working, getting or carrying away of such coals mines and minerals, and so as to dispose of the coals mines and minerals, with or without such rights or powers, separately from the land, and in either case without prejudice to any future exercise of the said trusts powers and authorities with respect to the excepted coals mines and minerals or (as the case might be) the undisposed-of land, and that the sanction of the Court might be given to such disposition. Mr. Fry appeared for the petitioners. for irregularity, as being a schedule of documents within the terms of the Orders of March, 1860,-Held, that the case was neither within the language nor the spirit of the Orders, and the motion was refused with costs. This was a motion to take an answer and the schedule to it off the file on the ground of irregularity. A suit was instituted to set aside a will whereby the testatrix, Miss Mann, had left large real estate to the defendant, her solicitor, the ground of the bill being that undue influence had been used. That bill was dismissed for want of equity, but liberty was given to the plaintiff to file another bill, on the footing that the will was valid at law, and without prejudice to any equity the plaintiff might have. The present bill was then filed, seeking relief on the same ground as the former bill, but asking neither discovery nor answer. The defendant, however, put in a voluntary answer alleging that this bill was, in substance, if not ipsissimis verbis, the same as the former bill; and, in order to substantiate that allegation, he appended a print of the former bill as a part of the schedule, or as the schedule to such answer, craving leave to refer to it in the usual way. This motion was then made. Mr. T. H. Terrell.-The appending of this printed bill to the schedule of the defendant's answer is in direct contravention to the Orders of March, 1860, viz., the 2nd, 3rd, 6th and 10th Orders. Such print is, in fact, a document within the terms of the Orders, and if such a practice was suffered to be introduced, it would be a gross abuse of the rules of the Court, besides leading to a very great increase of expense. So far as this print is concerned, being on the file of the Court, it is in fact on the Record; and, therefore, on that ground alone, it is quite unnecessary to do more than to refer to it. Besides this, the defendant had copies of this very bill in his possession, which might be used for all purposes without appending it as he has done. The Record and Writ Clerk (Mr. Murray) was of opinion that the proceeding was irregular, and had warned. the defendant that if he filed the answer and schedule it would be at his peril. |