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distinctly declared: and the first trusts declared were as to one moiety, to Mrs. Becher (her moiety is out of the question); as to the other, to Mrs. Abney during her life, for her sole and separate use; and nothing is left for the trustees to give them any interference with the estate but to receive and pay over to a married woman rents and profits, deducting their expenses: that is all: they are mere conduit pipes: they have nothing to do with repairs, &c. When they came to sell, Mrs. Abney had two daughters: there was no probability of any other children. One daughter married the Plaintiff Burnaby : one died leaving a son, the Plaintiff Swinfen. In Mrs. Abney and Mrs. Burnaby and the grandson, the whole estate in equity was vested. Mrs. Abney and her husband convey by lease and release the interest she had: the daughter Mrs. Burnaby and the grandson were vouched; and a recovery was suffered by her. The objections of the conveyancer are the most extraordinary, that can be conceived. He takes it for granted, that the decree was never executed. It was twice executed; and by the accident of the change of the trustees there were two different formal conveyances, both under the direction of the Court and with the approbation of the master; and the last was by a specific order of the Master of the Rolls. One trustee died: then the other died; and he left two daughters; upon whom the trusts devolved. An application was made to the Court, * that those daughters might convey to new trustees; and by an accurate, formal, conveyance, settled by the Master, they did convey; and the trust was then placed under the direction of the Court in the two Mr. Abneys. The conveyancer had inconceivably overlooked, that the decree was executed; that the conveyance limited the estate, precisely with the limitations of the will, to Mrs. Abney for her life: no executory trust remaining: the trustee a mere conduit-pipe, as it is called, for a purpose expressly directed by the Court. But he does not rely upon that; for he says, puzzling about it, that she had at most an equitable estate: he does not go so far as to say, she had no estate. He then makes another objection; which is a whimsical one; that there was no estate in her daughters; because the estate, as he supposes, was not to be conveyed till after her death ;. when it would appear, how many daughters she had. He does not conceive, that it would vest in each daughter coming in esse, subject to be devested, as the number increased; nor that each daughter would take an estate tail, which would be barred by the recovery; and he conceives, quite contrary to what is always done by this Court, that no conveyance was to be made to the trusts of the will till the death of the last tenant for life. He describes conveyances, that it was impossible to execute with the direction of this Court; which would never have permitted the legal estate to be conveyed by the trustees to her, to give her husband a seisin in her right. It was argued, that she was in equity not to be considered as having an estate; that she had only an equitable interest in the clear profits of the estate. What is that, when there was no other purpose, to which by

possibility it could be applied, but her use, what is that, but an estate for life? It was supposed to be necessary to give her power to dispose of it. She has under the will power to dispose to any purpose, she may think fit. There are but two species of estates; the legal and the equitable estate. It is an impossible argument, that she had no estate. She had an estate for life to be preserved by this Court. There never were more than two daughters: but if there had been more, it would not have made the recovery bad: but some other person would have come in for a share: but that objection was never made. In North v. Champernoon, the decree is plain; and, coupled with the argument in Chancery Cases a few pages before, it is very plain what Lord Nottingham meant: that for an equitable recovery there must be such an interest (1), as would be sufficient for a recovery of a legal estate. He guards himself against the supposition, that a mere estate-tail in this Court would be sufficient to suffer a recovery upon to bar remainders, where there is a prior estate for life.

He says, if there be a tenant for life, he must be a party; [* 277] and there * must be a tenant to the præcipe: if there is no estate for life, the tenant in tail alone is sufficient. It had been disputed before his time I see. Probably the reason of the contest was what made that case of some importance and some note in the law. Prior to Lord Nottingham's time the question occurred several times. Lord Clarendon and the Master of the Rolls and the Chief Justice held, that an equitable recovery barred all equitable remainders. Lord Bridgman doubted: he thought, there could be no such thing. The Chief Justice and the Master of the Rolls and Lord Clarendon thought a deed would do. I do not know, why that was not adhered to, but that it makes more profit to the conveyancers. Lord Bridgman's doubt made it come before Lord Nottingham. He decided, that a recovery was quite sufficient; that there was no occasion to have an application to the trustees.

The exception must be over-ruled.

To the application for the deposit the Lord Chancellor answered, that the Defendant must pay the costs.

1. WITH respect to the validity of equitable recoveries, see, ante, note 1 to Brydges v. Brydges, 3 V. 123.

2. That an interest given by will may vest sub modo only, and subject to being devested; see note 3 to Malim v. Keighley, 2 V. 333.

(1) See ante, Brydges v. Brydges, 120, and the note 128.

DANIEL v. CROSS.

[1796, DEC. 6.]

BANKERS upon a deposit of money with them gave notes bearing interest: the partnership was dissolved: one of the partners soon afterwards died: and his creditors were called by advertisement: another partnership was formed by the survivors and others; who re-issued notes of the former partnership, and paid the interest of the deposit notes for near two years; when they failed: the assets of the deceased partner are not discharged. (a)

CROSS the elder, Cross the younger, and Bayley, were in partnership as bankers at Bath. In March, 1791, the partnership was dissolved; and in June, Cross the elder died. By his will he subjected his real estate to his debts. After his death an advertisement was published, calling upon his creditors to send in the particulars of their demands to his executrix. In the same year a new partnership was formed by the surviving partners and other persons; which continued till March, 1793; when a commission of bankruptcy issued against them.

The Plaintiffs were creditors of the old partnership by notes issued in 1790 for money paid into the bank. These notes were made payable a certain number of days after sight: but it was understood, that they were to remain a longer time; and they bore an interest of 3 and a half per cent. The interest upon these notes had been paid by the new partnership; and they had reisssued several of the common cash notes of the former partnership. The debts of the old partnership at the dissolution, amounted to 197,000l. Their effects and money due to them were calculated at 203,000l.

*The question was, whether the estate of Cross the [* 278] elder was liable to the Plaintiffs in respect to their deposit

notes.

Solicitor General [Sir John Mitford], for the Plaintiffs. Lane v.

(a) It frequently happens, that upon the retirement of one partner, the remaining partners undertake to pay the debts and to secure the credits of the firm. If the arrangement is made known to a creditor, and he assents to it, and by his subsequent act, or conduct, agrees to consider the remaining partners as his exclusive debtors, he may lose all right and claim against the retiring partner, especially if the retiring partner will sustain a prejudice, and the creditor will receive a benefit from such act, or conduct. Story, Partnership, § 158, and cases cited; Thompson v. Percival, 5 Barn. & Adolp. 595; Oakley v. Pasheller, 10 Bligh, 548; S. C. 4 Clarke & Fin. 207; Harris v. Lindsay, 4 Wash. Circ. 271; Hart v. Alexander, 2 Mees. & W. 484. But the mere fact of the creditor's taking an additional security from the new firm without surrendering the old, or of his receiving interest from the new firm, without varying from that due on the old debt; or of his acquiescing in delay, without contracting upon any new consideration to prolong the credit, will not absolve the retiring partner from his original responsibility. Ibid. Featherstone v. Hunt, 1 B. & C. 113; Bedford v. Deakin, 2 B. & Ald. 210; Harris v. Lindsay, 4 Wash. Circ. 271; Blew v. Wyatt, 5 Carr. & P. 397; Smith v. Rogers, 17 Johns. 340. All these cases turn upon the same general consideration: whether there has been a new and exclusive credit given to the new firm in extinguishment of the debt, or to the prejudice of the firm.

Williams, 2 Vern. 277, 292. Heath v. Percival, 1 P. Will. 682. Jacomb v. Harwood, 2 Ves. 265. In Jones v. Sutton, Chan. before Lord Hardwicke, 2d of January, 1753, мss. after the death of one partner another was taken in, and the debts were carried into the new partnership: the decision recognizes the distinction; that to relieve the estate of the deceased partner from debts of this nature it is absolutely necessary, that the notes should be called in and delivered up, unless a prodigious length of time has elapsed.

Mr. Mansfield and Mr. Richards, for the Defendants. Another partnership having been established, and having paid interest upon these notes, and re-issued notes given by the former partnership, the attempt to charge the estate of a former partner is new. When he died, the old partnership was solvent. The dissolution became by his death notorious to all the world. The Plaintiff's never thought of making a demand when the advertisement appeared upon the death of Cross; and they dealt with the new partnership. This is not like the case of a bond or an express engagement by two partners. Lane v. Williams is a very short note: there was no new partnership or new credit given. In Heath v. Percival there was a joint and several bond. In Jacomb v. Harwood the interest was paid by the representative of the deceased partner (1). In Jones v. Sutton Lord Hardwicke relies upon the circumstance, that the surviving partner was executor of the deceased partner, and the interest was paid by him. If persons interested in the estate of Cross knew these notes were out, they must have supposed the claim abandoned. The new house took upon them the debts of the old; paying interest to the Plaintiffs, and renewing the cash notes from time to time.

Reply. The interest might have been paid by the new firm as agents of the old firm. As to their solvency at the dissolution, the debts nearly equalled the amount of their effects; and non constat, that all the money due to them could be recovered.

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*Lord CHANCELLOR [LOUGHBOROUGH]. These notes I take to be securities for money borrowed by the partners (2) then how can receipt of interest from the surviving partner, no matter whether a new partnership or not, discharge the estate of the deceased partner? I do not apprehend, they could come upon the new partnership, or that the creditors of the new partnership would permit them. They come quite regularly upon the assets of Cross possessed by the new partnership, and upon his general assets. They are creditors upon the effects of the old partnership, not upon the effects of the new partnership. The effects of the old partnership are the effects of Cross, and part of the effects of the new partnership. Cross's assets can never be discharged from this demand (3).

Ir one member of a banking firm retire, or die, a customer, by continuing to deal with the remaining partners, is not necessarily to be understood as accepting (1) The surviving partner was one of the executors; and the interest was paid by him.

(2) The Counsel for the Defendant admitted, that in effect it came to a loan. (3) Devaynes v. Noble, 1 Mer. 529.

them for his sole debtors, in respect of demands which arose previously to the retirement, or death, of the other partner: making the surviving partners debtors for new sums, is no acquittal of the old debtor; the estate of the retired, or deceased, partner remains liable to the debts which affected him at the time of death, or withdrawing from the firm. Palmer's case, 1 Meriv. 624; Sleech's case, ibid. 565; Vulliamy v. Noble, 3 Meriv. 619. Such subsequent dealings, however, may be of a nature to exonerate the estate of the retired partner. Ex parte Kendall, 17 Ves. 519, 526.

MOSS v. MATTHEWS.

[1796, Nov. 29; DEC. 9.]

THE bill praying an inquiry into the title, and a specific performance, on the Defendant's motion after answer, an inquiry was directed as to the title, at what time the abstract was delivered, and whether it was sufficient: but the Court would not decide upon any matter of relief.

Relief against forfeiture of the deposit upon putting the other party in the same situation as if the contract had been performed at the time agreed, [p. 282.]

AN Act of Parliament had been obtained in the last session for the sale of a devised estate, under the direction of the Court upon the report of the Master, that it would be for the benefit of the infant devisees. Accordingly by articles dated the 30th of June, 1796, Moss contracted with the trustees for the purchase of the freehold and inheritance for 24,000l., making a deposite of 24007.; the purchaser to be let into possession the 10th of October following; and he covenanted, that in case of default in payment of the residue of the purchase-money upon the 5th of November, 1796, the deposite should be forfeited, and the contract should be void at law and in equity, and the trustees should be at liberty to re-sell the premises; and the deficiency at such sale, and all costs, charges and expenses, attending the same, should be defrayed by Moss, his heirs, executors, and administrators. The abstract of the title was delivered on the 28th of July. The remainder of the purchase-money was not paid. On the 7th of November the purchaser filed a bill, stating, that he found objections to the title; and particularly, that the tenants are entitled to take the crops of corn and grain, which should be produced in the season next ensuing the determination of their takings, interests or agreements, and after having quitted the same. The bill prayed an inquiry, whether the Defendants can make a good title, and what will be a proper deduction * in respect of the [* 280] loss, that will be sustained by the Plaintiff in respect of the adverse rights of the tenants; and in case such title can be made out, and upon having such allowance made, the bill prayed a specific performance: but if the title cannot be made out, or the Defendants refuse to make such allowance, then that the deposite may be returned, and the agreement cancelled. The answer stated the delivery of the abstract; and that the Defendants desired, that