Bickford Peppin on the body of such wife lawfully to be begotten severally and successively in tail male; the elder of such sons and the heirs male of his body lawfully issuing being always to be preferred and taken before the younger of such sons and the heirs male of his and their body and bodies issuing; and for default of such issue; then to and upon all and every the daughter and

daughters of him said Arscot Bickford * Peppin lawfully [*571] to be begotten on the body of such wife and the several

and respective heirs of the body and bodies of all and every such daughter and daughters lawfully issuing as tenants in common and not as joint-tenants; and for default of such issue then to the use and behoof of his brother-in-law George Bickford of Oakhampton in the county of Devon, his heirs and assigns forever. The testator then directed, that his executors should pay to the said Arscot Bickford Peppin interest of the said 6000l. at 3 per cent. from the day of his decease till the same should be so laid out, as aforesaid; which he directed should be done as soon as any such freehold estates could be bought; and he gave devised and bequeathed, all and every his manors, farms, lands, tenements and hereditaments whatsoever to the use of his brother-in-law George Bickford, his heirs and assigns for ever; and he gave all the residue of his personal estate after payment of his debts, funeral expenses and legacies, to his brotherin-law George Bickford, his executors, administrators and assigns, and he appointed his said brother-in-law sole executor.

The testator died about the 21st of April, 1771. George Bickford proved the will, and took possession of all the real and personal estate of the testator. In October 1772 Arscot Bickford Peppin married Dorothy Wells, his first wife; who at the date of his will was utterly unknown both to him and his uncle, the testator. In 1775 the sum of 2800l. part of the said 60007. was invested in the purchase of two estates, called Bury and Alford's in the county of Somerset; which were settled to the use of Arscot Bickford Peppin for life; and from and immediately after his decease to the use of the said Dorothy, his then wife, for life; remainder to their first and other sons in tail male, &c., as directed by the will; with a proviso, that nothing therein should prevent a settlement on any other wife of Arscot Bickford Peppin and his issue by such other wife, in case it should be deemed by Counsel to be the intent of the testator, that the lands to be purchased should be settled on any-taken wife of Arscot Bickford Peppin and his issue by such wife, in case the said Dorothy should die without issue in his life.

George Bickford died in May 1795, leaving his son Arscot Bickford heir-at-law and administrator; who took possession of the real and personal estate of the testator, and upon the death of Arscot Bickford Peppin in June 1796 took possession of the estates of Bury and Alford's. Arscot Bickford Peppin, his first wife Dorothy having died without issue many years ago, in 1783 married the

Plaintiff.

The bill prayed, that it may be declared, that the estates directed

to be purchased with the said 6000l. by the will of Arscot Bickford the elder were to be settled on any after-taken wife of Arscot Bickford Peppin and his issue by such wife, in case his first wife should die without issue; and that an account may be taken, &c.

The Defendant Arscot Bickford demurred to the whole bill, except so much as charges assets of George Bickford, and prays an admission thereof or any discovery, answer or satisfaction, for the estate and effects of George Bickford come to the hands of the Defendant; and by his answer he denied, that there were

assets.

Attorney General [Sir John Scott], Mr. Mansfield, and Mr. Hall, for the demurrer.

Solicitor General [Sir John Mitford], and Mr. Short, for the Plaintiff were stopped by the Court.

Lord CHANCELLOR [LOUGHBOROUGH]. If the wife had died within a month after the marriage, there could have been no issue to take the provision; and the legacy of 6000l. except as to the life-interest of the nephew would in effect have lapsed. It is impossible to ascribe such an intention to the testator.

Over-rule the demurrer.

SEE, ante, note 3 to Perry v. Woods, 3 V. 204, as to the disinclination which a Court of Equity feels to put such a construction upon a will as would lead to the probability of a lapse.

GORDON v. ROTHLEY.

[1797, DEC. 16.]

DEFENDANT on motion ordered to pay in a balance ascertained by the report.

THE Attorney General [Sir John Scott] moved, that the Defend ant, who was of the age of eighty-eight, should pay into Court the sum ascertained by the Master's report to be the balance due from him.

The motion was opposed by Mr. Mansfield, Mr. Grant, and Mr. Wishaw, as contrary to practice.

[* 573]

*Lord CHANCELLOR [LOUGHBOROUGH]. I have no hesita tion in saying, it would be extremely beneficial, if whenever a balance is ascertained, it should be paid in immediately. It would have the best effect in accelerating the farther directions, and save the vast expense of costs. The parties spin it out, while they have the advantage of keeping the money. Here also from the age of the Defendant there is danger of an abatement. Therefore let it be paid in.

THOUGH the Court will always be disposed, upon the grounds stated in the principal case, to order a balance to be paid in, when it is ascertained by the Master's report, and not controverted; yet, if the report is excepted to, the money

will not be ordered into Court before the exceptions are argued: in a proper case, however, the hearing will be advanced. Creak v. Capell, 6 Mad. 115. And it should be observed, that by a bill now pending in Parliament, "for the improvement of the administration of justice in the Court of Chancery," it is proposed to be enacted, that no exception shall be taken to the report of a Master upon any matter of account, in respect of any item contained in such account, unless such item alone, or together with any other item or items depending on the same question, shall amount to fifty pounds at the least; unless the Master making such report shall certify his opinion, that the question, with respect to such item, involves some principles of law or Equity which, in his judgment, renders it expedient that the same should be considered by the Court. It is also proposed, that any party excepting to a Master's report, shall deposit the sum of ten pounds, instead of five pounds, as at present required; such deposit to be paid to the adverse party if the exception shall be overruled, and farther costs to be in the discretion of the Court.

ROGERS v. KIRKPATRICK.

[1798, JAN. 16.]

DEFENDANT, in confinement under sentence for felony, cannot be brought up by habeas corpus upon an attachment for want of an answer. (a)

IN

In consequence of what passed upon the former application to the Court, (ante, 471,) Mr. Stanley for the Plaintiff on the first day of Michaelmas Term moved for a writ of Habeas Corpus to bring up the Defendant. The Register declined drawing up the order on the ground of irregularity; upon which Mr. Stanley on this day repeated the motion; stating the particular situation of the Defendant; who was confined for three years in the House of Correction at Preston in Lancashire under a sentence for felony; and the return of the Serjeant at Arms was read.

Lord CHANCELLOR [LOUGHBOROUGH], having conferred with the Register, directed the order not to be drawn up; adding, that the Defendant could not be removed by the process of this Court out of his present place of confinement until the expiration of his sentence (1)

SEE, ante, the notes to S. C. 3 V. 471.

(a) See ante, p. 470, note (1) to S. C.

(1) See Attorney General v. Smith, 1 Dick. 135; post, Errington v. Ward, vol. viii. 314; Lloyd v. Passingham, xv. 179; Moss v. Brown, 1 Ves. & Bea. 78, 306.

BURN v. BURN.

[1797, Dec. 5, 6; 1798, JAN. 29.]

JOINT bond held several against creditors in the administration of assets. (a) Joint bond held several in bankruptcy, [p. 575.]

Partners bound by an instrument executed by one in the presence of the others, (b) [p. 578.]

Agreement for a mortgage a specific lien against creditors, (c) [p. 582.]

THOMAS MAYNE, Edward Mayne the elder, and Edward Mayne the younger, carrying on business in co-partnership as merchants at Lisbon, were in August, 1785, indebted to Doctor Burn in the sum of 25,2441. 18s. 5d. on a balance of accounts; and three bonds were executed by Thomas Mayne; one for the sum of 7030l. 7s. 7d. and interest; another for the like sum and interest: and the third for the sum of 11,1847. 3s. 3d. and interest. The bond for the lastmentioned sum was in the following form:

"Know all men by these presents that we Mayne and Co. of the

(a) "I conceive," says Mr. Baron Alderson, "that partnership trading debts are only one, and that the most frequent case of the general rule, which is, that wherever a Court of Equity sees that in a contract, joint in form, the real intention of the parties is, that it shall be joint and several, it will give effect to such intention." Thorpe v. Jackson, 2 Y. &. C. 553. See this topic considered, ante, p. 399 note (a) to Thomas v. Frazer.

(b) If executed in the presence and with the assent of the other partners, it shall be deemed the deed of all. Story, Partnership, § 120; Mackay v. Bloodgood, 9 Johns. 285; Halsey v. Whitney, 4 Mason, 232. See Smith v. Winter, 4 Mees. & Welsby, 454. This seems to be an application of the old rule of the common law, which makes a deed, executed by an agent in the presence of his principal, the deed of the latter, although the authority to do it is merely by parol. Ibid. Story, Agency, § 51. In a case where the instrument is not executed in the presence of the partners, the English decisions require a prior authority under seal, or a subsequent ratification under seal, to make the execution valid. 3 Kent, Com. 47, 48, (5th ed.) But the more general doctrine in the United States is, that a prior authority, or a subsequent ratification, not under seal, but either express or implied, verbal or written, is sufficient to establish a deed, as the deed of a firm, and binding upon it as such. Skinner v. Dayton, 19 Johns. 512; Cady v. Shepherd, 11 Pick. 400; Gram v. Seton, 1 Hall, 262. In the last case all the English and American authorities bearing on the subject are examined at great length.

(c) In equitable mortgages by the deposit of title-deeds, the deposit is evidence of an agreement to make a mortgage, which will be carried into execution by Court of Equity, against the mortgagor and all who claim under him, with notice, either actual or constructive, of such deposit having been made. See 4 Kent, Com. 150, 151, (5th ed.) ante, note (a) to Ford v. Peering, 1 V. 72; 2 Story, Eq Jur. § 1020. But this doctrine is not ordinarily applied to enforce parol agreements to make a mortgage, or to make a deposit of title-deeds for such a purpose; but it is strictly confined to an actual, immediate, and bona fide deposit of the title-deeds with the creditor, as a security, in order to create a lien. Ibid. There is generally no difficulty in Equity in establishing a lien, not only on real estate, but on personal property, or on money in the hands of a third person, whenever that is a matter of agreement, at least against the party himself and third persons, who are volunteers, or have notice. For it is a general principle in Equity, that, as against the party himself, and any claiming under him voluntarily, or with notice, such an agreement raises a trust. Ibid. § 1231. See also Delaine v. Kehan, 3 Dess. 74.

city of London merchants are held and firmly bound unto the Reverend Doctor James Burn of London in the sum of

* 22,3681. 6s. 6d. good and lawful money of Great Britain [* 574] to be paid to the said Rev. Dr. James Burn or his certain attorney executors administrators or assigns for which payment to be well and faithfully made we bind ourselves our heirs executors and administrators firmly by these presents, sealed with our seal dated this 1st day of September in the year of our Lord 1785 The condition of this obligation is such that if the above bounden Mayne and Co. their heirs executors or administrators shall and do well and truly pay or cause to be paid unto the above-named Rev. Dr. James Burn his executors administrators or assigns the full sum of 11,1847. 3s. 3d. good and lawful money of Great Britain and that in the City of London and at and against the 1st day of September 1786 years with the lawful interest at 5 per cent. per annum from the date hereof until payment then this obligation to be void otherwise to remain in full force Mayne and Co. Signed sealed and delivered (no stamped paper used here) in the presence of William Williamson Patrick Scott."

The other two bonds were in the same form. Edward Mayne the elder died in March 1786. The business was carried on by the surviving partners under the same firm until the beginning of the year 1790; when they became and were declared insolvent. The bill was filed by Dr. Burn, who was one of the executors of Edward Mayne the elder, praying, that the Plaintiff may be declared a specialty creditor on the estate of Edward Mayne the elder by virtue of the said bonds, and may be paid or permitted to retain what shall appear to be due to him out of the estate of Edward Mayne the elder in a course of administration; and if he cannot be admitted as a specialty creditor, then that he may be admitted as a creditor by simple contract on the estate of Edward Mayne the elder.

The evidence was very full as to the intention, that each partner should be severally bound; and that the bonds were filled up as joint bonds through mistake and the ignorance of the parties. It appeared that Edward Mayne the elder settled the account; and, Dr. Burn pressing for payment or security, Edward Mayne the elder proposed, that he and the other partners should give three bonds; in consequence of which the said bonds were executed as an additional security; that they were executed by Thomas Mayne,

* only because his name stood first in the firm but he ex- [*575] ecuted them with the privity of the other partners; who were present at the execution.

The intention that each of the partners should be bound, was fully admitted by a letter from the survivors. The claim of the Plaintiff was resisted by the simple-contract creditors of Edward Mayne the elder.

Attorney General [Sir John Scott], Solicitor General [Sir John Mitford,] and Mr. Stratford, for the Plaintiff. This cannot be distinguished from the late case of Thomas v. Frazer, (ante, 399), and the cases in bankruptcy there stated. Your Lordship held, that you