1796. COLMAN v. Solicitor General and Mr. Richards, for the Plaintiffs. This is different from a common mortgage: but in the case of a common mortgage it would be impossible to maintain such The Duke of a demurrer, supposing the means of obtaining the profits to ST. ALBANS. be by resort to a Court of Equity; for the Defendant not being himself the mortgagor, no action would lie against him. If this was a real estate, as from the time of the demise in the ejectment the mesne profits might be recovered against the Defendant as a trespasser, so for the previous time from the moment that the actual tenant had notice, they may be recovered in an action for use and occupation: Birch v. Wright, 1 Term Rep. B. R. 378. But this is very different from the common case; and the Plaintiff is entitled to these profits upon equitable grounds. The only personal covenants for payment of the money were entered into by Duke Charles. In 1771, when the security was given upon the office under the new patent, no covenant was entered into by Duke George: but the debt was charged upon the office, which he took from Duke Charles; the Deputy Registers being directed to pay the profits to Mrs. Crewys. There is therefore no personal covenant except against the assets of Duke Charles. It is an assignment of the profits, creating a trust to hand them over; and the assignee has no resource but a Court of Equity. The question then is, whether against an 'assignee for valuable consideration of the actual profits only (for she has no power over the office itself) the present Duke can *retain them and refuse to hand them over, in case the value of the office is insufficient for her debt. A decision, that he can, will affect the credit of mortgages of estates for lives. Treackle v. Cooke, 1 Vern. 165, applies strongly; in which an assignee of a lease was charged in equity for the rent during the time he received the profits upon the ground of an implied engagement to pay the rent. If this had been a legal assignment of the office, there is no doubt, the Plaintiffs might have brought an action of money had and received; to which nothing but the statute of Limitations could have been pleaded. These fees and emoluments went to the present duke as heir or devisee cloathed with this right of Mrs. Crewys; therefore there is a complete lien. At all events the Court will not determine this on demurrer. [ *31 ] Reply. The covenant of Duke Charles will bind all his assets. Mrs. Crewys makes her option not to abide by her old security; but concurs in the surrender of the old patent and in the new grant to Duke George; with whom she barters for a new security. She will not trust any legal remedies or to the appointment of a receiver in consequence of any equitable estate; but insists on having an express authority to call on the Deputy Registers to pay the profits to her. I will now suppose this grant legal for this purpose. The Duke says in answer to the bill, what is the language of every mortgagor to every mortgagee, that it was her voluntary act for twentysix years to permit him to put into his pocket, as a fund to spend, the produce of this office; which she might have prevented by calling on the deputies. It is said, they are to have by-gone rents and profits, because they charge, that the security is insufficient. That would apply to leasehold estates, or estates for lives just worn out, or in fee, where there was a supervening charge the parties were not aware of at the time. A man, who lends on securities wearing out, knowing the security he takes, has only to enter, if he has reserved a legal right, or stipulate, as Mrs. Crewys did, for a direction to pay the rents and profits to him; and if he does not use those remedies, he must blame himself. As to an action for mesne profits, if such an action would lie, this Court would interfere. The faith between mortgagor and mortgagee is, that if the mortgagor keeps down the interest, the mortgagee not calling for his principal has no right to call for the by-gone rents * and profits. In Higgins v. The York Buildings Company, 2 Atk. 107, and Mead v. Lord Orrery, 3 Atk. 244, Lord Hardwicke says, that in no instance, where the mortgagor is left in possession, is he liable to account to the mortgagee for the rents and profits. In ordinary mortgages the principle of equity is, that the Court does not sit to help men, who will not help themselves; and that it is against conscience, if they will not make use of their power, but induce the mortgagor to spend the rents and profits he received only by their permission, that they should make him refund in equity. The claim of bond creditors for a distribution C 2 1796. COLMAN V. The Duke of [ *32 ] 1796. COLMAN v. The Duke of [ 33 ] Qu. Whether the office of Register of distribution of assets is very different; for the moment the estate descends, the party knows, that he is liable to the debts. Whose fault is it, that there is no action against the present Duke? Mrs. Crewys might have refused to surrender her former security, unless he gave the means of a personal action or even larger remedies. Lord CHANCellor. There is no part of the bill, upon which the Plaintiffs can rely here, but that relating to the security taken from Duke George; for as to this point the security from Duke Charles is out of the question; for under that Mrs. Crewys had no right to enter and take the profits. His security gave only an assignment of the profits. He was in possession of the office, and was to continue in possession. All she could have done would have been to have brought an action against him receiving them. But the latter security gives the profits with an express power to her, as attorney of Duke George, to receive the whole from the Registers. She permitting them to be paid to the duke, it would be against all rules of Equity in the cases of mortgages to decree an account for the time, when by the connivance, or to speak more properly, the permission, of the mortgagee the profits have been received, and applied, as the party might think fit. If a person takes a mortgage title, this Court will let him take possession of the estate; but will not make the party he leaves in possession account for the past rents. If he has not the legal title to the mortgaged property at law, this Court will appoint a receiver: but can it do more than appoint a receiver in the common case? In this case the mortgagee not using that power specifically given to fix upon the Deputy Registers the direct payment to her as assignee, must impute it to herself, if these profits are gone, and the security is perishable, or *there is any hazard attending it; as no doubt there is attending the security, she has taken. She has not used the remedy, she has taken. I should wish to know, before this cause comes to a final conclusion, whether there could have been a direct legal assignment of the office. Is this an office assignable at law? the Court of An An assignment of all the profits is very little different (22). (22) See Hartwell v. Hartwell, able; and the mortgage was espost, Vol. IV, 811. tablished except as to by-gone profits. Ex parte Wilson, 2 Ves. & Bea. 252. Gresley v. Adderley, 1 Swanst. 573. (23) In Drummond v. The Duke of St. Albans, post, Vol. V, 433, this office was held to be assign 1796. COLMAN v. The Duke of ST. ALBANS. SIR 4007. COLLIER v. COLLIER. 1796. Feb. 11th. Testator gave his wife 4001. IR GEORGE COLLIER by his will gave to his wife a year in addition to 500l. a year, to which she was entitled by her marriage settlement, to be paid half-yearly, a-year in addi"in consideration of the expence and care she will incur in "the maintenance of our children." tion to 5001. a-year under her settlement, There were six children; two sons and four daughters. in consideraThe question was, whether Lady Collier must defray the ex- tion of the expence of maintenance and education out of this additional pence and care provision; or to what extent. Mr. Mansfield, for Lady Collier. The word "education" does not occur. The testator could not mean to impose upon Lady Collier the actual expence of the maintenance and education of the boys at school. Lord CHANCELLOR. There is an express cause of the legacy: but there is nothing in the will to limit their maintenance to 4007. a year; nor is it put by way of condition. I think, there is this effect to follow; that the Master in computing what is proper must have regard to the circumstance, that their mother's house is their home. He could not mean, (it would destroy the purpose) that she should be laid under a temptation to spoil the boys by keeping them at home. she would incur in the maintenance of their chil dren: she must maintain them when at home; but is not to be charged with education, or maintenance at school. 1796. ROLLS, Feb. 9th, 15th. and tenant signed by the landlord for a new lease to PYM v. BLACKBURN. Agreement in FRANCIS PYM was seised in fee of a public-house in writing beArlington Street, called the Blue Posts. John Stephenson tween landlord was lessee under him for the term of 21 years commencing at Michaelmas 1774, at the yearly rent of 607. In 1791 the tenant made application for another lease; and after some treaty an agreement in writing was drawn up setting forth the partibe granted at culars of the repairs necessary, and proceeding thus: "It is any time after" this day agreed between Francis Pym, esq. and Messrs. Stethe completion "phenson and Co. as follows: that the said Messrs. Stephenson of repairs to "and Co. shall and will with all convenient speed and in a be made by "good, substantial, and workman-like, manner repair or cause the tenant with all convenient speed: but blanks were left for the day of the to be repaired the dwelling-house and premises in Arlington "Street, known by the sign of the Blue Posts, now in the occupation of Mr. Thomas Hearse, in the several particulars "herein before set down and described, to the satisfaction of "Mr. Martin Cole or any other surveyor, the said Francis Pym may appoint; and after the said repairs shall be completed, ment; the re- " that they will accept a lease of the said house and premises pairs being "for a term of 31 years from the completed, the commence landlord tendered a lease to commence day of under "the yearly rent of 851., payable quarterly, clear of all deduc"tions; in which lease shall be contained the usual provisoes "and covenants for payment of the rent, to keep the premises from that time," in repair, to leave them so at the end of the term, to pay and on refusal all the taxes, and to paint all the outside wood and iron filed a bill; "work once or oftener every seven years of the term; and the " said Francis Pym agrees to grant the said Messrs. Stephenson the agreement "and Co. a lease of the said premises upon the terms and was accepted; "conditions before mentioned, at any time after the said rebut insisted, "pairs shall have been well and effectually made, as aforethat the new "said: as witness their hands the 7th day of June 1791. the answer admitted, that lease was not to commence till the expiration of the "Witness Wollaston Pym. FRANCIS PYM." In 1793 Mr. Pym filed the bill against Stephenson, praying, old; and so it that the Defendant might be decreed specifically to perform was decreed; the said agreement and to accept a lease according to the parol evidence tenor and effect of the said agreement. The bill set forth being refused. Tenaut cove panting to keep and leave the premises in repair must rebuild in case of fire. the |