drawn up in the exact terms which would have been inserted if there had been no delay before the registrar, but to have a new privilege of amending upon his undertaking to amend within one week instead of three. The order should have corresponded with the notice; but that as the order drawn up by the plaintiff had changed the time mentioned in his notice, the order must be discharged; and as the order which was discharged was not the order of the Vice Chancellor, but an order rendered irregular by the plaintiff, and drawn up at his own peril, it must be discharged with costs: but his Lordship gave the plaintiff liberty to apply to the Vice Chancellor to retain the amendments upon the file. Where property was sold under an order of the Court, in which the plaintiff was interested to the extent of one-eighth part, and three of the defendants, who were interested in the other shares, and were in possession of the property, became the purchasers of part of the property, they were required to pay the whole amount of their purchasemoney into court; and that, notwithstanding there were incumbrances upon the property, and the purchasers claimed to be entitled to allowances for improvements. The plaintiff was entitled to one-eighth share in a colliery and other property, which was the subject-matter of this suit, and which had belonged to the plaintiff and the defendants in copartnership. This property had been ordered to be sold, and all the parties to the suit were to be at liberty to bid for any of the lots, and to make such application to the Court as they might be advised touching the payment of their purchase-money; and the Master, in taking the accounts of the partnership, which were directed, was to inquire whether the saleable condition of the partnership property had been improved by the defendants' ex penditure since the time at which the plaintiff ceased to be interested in it. Three of the defendants became the purchasers of two of the lots for 10,680l. They were in possession of the property, and a motion was now made that they should pay this sum into court. The defendants, by their affidavits, stated, that it was understood that if they became the purchasers of any of the partnership property, they should not be required. to pay into court more than the proportion to which the plaintiff was entitled, namely, one-eighth. The plaintiff denied that any such agreement had been entered into. By the fourth condition of sale, the purchasers were to accept the same title which had been accepted by the vendors. Mr. Romilly and Mr. Bichner supported the motion. Mr. Teed and Mr. Willcock opposed it. WIGRAM, V.C. made an order referring it to the Master to inquire whether a good title could be made, and that the three defendants should pay the whole amount of their purchase-money into court by the 10th of July next, but they were to be at liberty to pay off any incumbrances or to procure the plaintiff to be released from any liability, and thereupon to apply to the Court to have the amount to be paid in, reduced. A motion was now made before the Lord Chancellor, that so much of Vice Chancellor Wigram's order as directed that the whole amount of the purchase-money should be paid into court, might be discharged. Mr. Teed and Mr. Willcock, in support of the motion, contended, that the purchasers had not accepted the title, and that the order directed an investigation whether the title was a good one; that the property was subject to incumbrances and liabilities, which ought to be paid off before any of the money should be required to be paid into court; that the amount of the purchase-money was greatly increased by the expenditure of the defendants upon the property, for which they were entitled to an allowance; and that as the plaintiff was only entitled to one-eighth share, it was throwing an unnecessary burthen upon the purchasers to require the whole amount to be brought into court. Morgan v. Shaw, 2 Mer. 138. Smith v. Lloyd, 1 Mad. 83. Boothby v. Walker, Ibid. 197. Blackburn v. Stace, 6 Ibid. 69. Mr. Romilly and Mr. Bichner, contrà, insisted that the order of reference as to title, was made at the request and for the satisfaction of the purchasers; that they were precluded by the conditions of sale from raising any objection to the title, which was, in fact, their own title as much as the title of the plaintiff; that they were in possession of the property, and therefore ought to pay the purchase money; and that unless it was paid into court, the plaintiff would have no guarantee that it would be properly applied. Mr. Teed replied. Nov. 5, 1845.-The LORD Chancellor. -The plaintiff and defendants in this case were partners in a colliery. The concern was divided into eight shares, one of which was held by the plaintiff. In March 1841 he refused to pay a call which was then payable, and filed a bill against the defendants and the other shareholders. An order for the sale of the property was made in that suit, and by the conditions of sale the purchase-money was to be paid into court on or before the 13th of July. There was a provision in the order, that any of the parties might be at liberty to bid at the sale, and, if they became purchasers, might apply to the Court respecting payment, as they might be advised. The defendants, Middleton, Baker and Todd were the purchasers of two lots for 10,680l., and a motion was made, before Vice Chancellor Wigram, for payment of the purchasemoney into court. The Vice Chancellor made an order to the effect that the purchasers were to be at liberty to pay off any incumbrances, or to procure the plaintiff to be released from any liability, to which he might be subject, and to apply to the Court to reduce the amount to be paid in; and a distant day was fixed for the payment, in order to give time for the application. The order also contained an order for reference as to the title. The purchasers seek to discharge this order. It was Several points have been made. objected that the title had not been ac cepted nor reported sufficient. But in this case the purchasers are both vendors and vendees. By the conditions the title is to be accepted in the same form as it was taken by the vendors when they became the purchasers. They knew their own acts, and must have known their own title; and it was not suggested in the several affidavits that there were any objections, nor was any thing stated at the bar which could throw a doubt upon the title. They are in possession, and the reference was ordered to satisfy the counsel for the purchasers. But the main point in controversy was, it was said, that a pledge was given before the order was made, that if any of the defendants should become the purchasers, they should pay in only one-eighth of the purchasemoney, that being the amount of the plaintiff's interest in the concern. I have read the affidavits more than once, and I do not see that anything was finally settled upon this point: but, on the contrary, I think the point was left open, and that the parties were to apply to the Court. After some subsequent discussion between the junior counsel, the minutes of the order were settled by them, and signed. But then it was said to be unreasonable, having regard to the evidence as to the improvement of the property by the defendants, that the whole of the purchase-money should be paid before the accounts are investigated. But, assuming that the money alleged to have been laid out by the defendants in improving the colliery has been so laid out as to render the plaintiff liable for his proportion, there would still be a considerable sum due to the plaintiff beyond his share of the purchase-money, according to the statement in the affidavits, although it is impossible in this manner to ascertain the amount with any degree of accuracy. I think, therefore, the order was as favourable for the defendants as they had a right to claim; and I do not see, with these materials, what other order could have been made. It is clear that the plaintiff ought not to have confined his account to one-eighth of the purchase-money, and there is no evidence to shew the limit within which the payment might be properly confined. I am of opinion, therefore, that this motion should be refused, and with costs. The Certain freehold and leasehold estates were absolutely conveyed and assigned by A, who was in embarrassed circumstances, to his brother B, in fee. In the deeds of conveyance and assignment no consideration was expressed, but it appeared that B. had paid debts of A. to the amount of 2,000l., which was stated by B. in his answer to the bill filed by A. in 1832, seeking a re-conveyance and re-assignment of the estates by B, to be the consideration for the execution of the deeds. By the decree of the Court an account was directed to be taken of the dealings and transactions of the plaintiff and defendant. The Master, in taking the account, allowed no interest on either side; and by his report, made in 1838, found a balance of 781. due to the defendant. possession of the estates was delivered up to the plaintiff by the defendant in 1841; and by an order, on further directions, in 1842, an account was directed to be taken of the rents received by the defendant during his possession of the estates, and the Master found the sum of 4131. due from the defendant to the plaintiff :-Held, that the defendant was not entitled to claim interest in respect of the balance found due to him in 1838; that being a defaulter he was not entitled to his costs of taking the accounts; and that he was bound to pay the balance due from him, and to re-convey and re-assign the estates to the plaintiff, and to deliver up the deeds of conveyance and assignment at the cost of the plaintiff. The bill in this case was filed for the purpose of obtaining a re-conveyance and re-assignment by the defendant to the plaintiff, who was his brother, of certain freehold and leasehold estates, and of the equity of redemption in another freehold estate, on the ground that the conveyance and assignment, which were absolute on the face of them, were executed by the plaintiff to the defendant confidentially as a trustee for the plaintiff, and not by way of absolute disposition to the defendant beneficially, and that no consideration had passed between the parties in respect thereof. The defendant, by his answer, denied that the deeds were executed to him without a consideration, and stated that the deeds were executed in consideration of 2,000l. paid by the defendant to the plaintiff's creditors, and that he held the deeds of conveyance and assignment as securities merely for that amount; and he submitted that he was entitled to a declaration that the deeds operated as mortgage securities. The plaintiff afterwards amended his bill, and offered to pay whatever might be found due to the defendant on the taking of an account. No evidence was gone into by either party, and by the decree made on the original hearing in the year 1833, an account of the dealings and transactions between the plaintiff and defendant was directed by the Court to be taken by the Master. The Master, in taking the account, allowed no interest on either side; and by his report, dated in 1838, he found a balance of 781. to be due to the defendant. The estates were left in the management of the plaintiff's son, and of another of his brothers; and the possession thereof was recovered by the defendant in an action of ejectment in 1833. The possession of the estates was delivered by the defendant to the plaintiff in the year 1841. By the order, on further directions, dated in June 1842, an account (amongst other things) was directed of the rents and profits received by the defendant, or for his use, during the time of his possession of the estates; and the Master, by his report, found the defendant had received, after making certain deductions, the clear sum of 413l., in respect of the rents of the estates. The cause now came on to be heard on further directions and costs. Mr. Purvis and Mr. Burdon, for the plaintiff, asked for an order for payment of the balance found due from the defendant to the plaintiff, and the delivery up of the deeds by the defendant, and the payment by him of the costs of the suit. Mr. Kindersley and Mr. G. Turner, for the defendant, contended, that the defendant was merely active in the superintendence of the estates of his brother under the deeds; that if the defendant was not precluded by the form of the pleadings, the authorities were in favour of the defendant having interest decreed him on the former balance of 781.; that the defendant filling the character of a mortgagee, the Court would not charge him with any portion of the costs of the suit, where no tender had been made to him by the plaintiff, and there was no misconduct imputed to the defendant, but, on the contrary, great delay had arisen in the prosecution of the suit by the plaintiff, the same having been commenced as far back as the year 1832-Loftus v. Swift (1). The MASTER OF THE ROLLS, after adverting to the inconvenience that often arises from one solicitor acting for both parties, and that the proper provisions had been omitted to be inserted in the deeds, said, that the case was not one of a trust nor of a mortgage, nor an agency simply, but of one where the characters of trustee, mortgagee and agent were joined; that it was true there was not to be found in the deeds the usual proviso for redemption, but it was clearly intended that the plaintiff should have power to call on the defendant for an account of the rents and profits to be received by him; that the Court, when the case came originally before it, did not consider it one of mere mortgage, inasmuch as it gave no directions as to the re-conveyance, nor ordered any account to be taken of interest to accrue due, and the Master could therefore take no account of such interest; that the defendant originally only established a debt of 781. to be due to him, and whatever might be the true character of the defendant, he certainly placed himself in the situation of an accounting party, and undertook a duty which he did not perform, by reason of the loss of his vouchers for monies paid by him to a considerable amount; that the defendant, being a defaulter, could not expect to have the costs given him of taking the accounts; that on the best consideration of the case no costs ought to be given on either side, but the decree would be for payment of the balance found due to the plaintiff, and for a re-conveyance, and the delivery of the deeds to the plaintiff, at the costs of the plaintiff. (1) 2 Sch. & Lef. 657. Mortgage-Priority of IncumbranceNotice-Legacy. A sum of stock was standing in the names of D. and L. in trust for K. for life, with remainder to A. absolutely. A, by her will, bequeathed the stock to B, and appointed D, one of the trustees, her sole executor. After A.'s death, B. assigned all his estate and effects to L, and another upon trusts for the benefit of his creditors, but no notice of this assignment was given to D; and afterwards B. assigned the particular stock to C, by way of mortgage, and notice of the last assignment was forthwith given to D. Upon bill by C, it was held, that, the legacy not having been assented to, notice to the executor was necessary, and that notice to the trustees alone was not sufficient; and that, consequently, C. was entitled to priority. Eliza Dewell, the testatrix, previous to the date of the codicil to her will, transferred the sum of 3331. 6s. 8d., consolidated Bank annuities, into the names of Thomas Dewell and John Long, upon trust to pay the dividends thereof to Ann Kingston for life; but no ulterior trusts of the fund were then declared. The testatrix died in 1833, having, by a codicil to her will, dated the 30th of October 1828, bequeathed the 107. per annum in the 31. per cent. consols, standing in the names of J. Long and T. Dewell, which would revert to her (the testatrix) by the death of A. Kingston, to Philip Howe Daniell, and she thereby appointed the said T. Dewell sole executor of her will and codicil. P. H. Daniell, by a deed of the 19th of October 1838, assigned to the plaintiff, by way of mortgage, for securing 2001. and interest, the whole of his interest in the trust fund, in remainder expectant upon the decease of A. Kingston; and the deed contained a power of attorney to recover the said funds, and apply the same in payment of the mortgage money with interest. Previously to the execution of the mortgage deed the plaintiff, by his solicitor, inquired of T. Dewell whether any prior incumbrance existed upon the fund, when T. Dewell informed him, in reply, that no such incumbrance had come to his (T. Dewell's) knowledge. After the execution of the deed, in November 1838, notice thereof was given by the plaintiff's solicitor to T. Dewell. On the 17th of November 1842, A. Kingston, the tenant for life of the fund, died, and shortly afterwards the plaintiff applied to T. Dewell and J. Long for a transfer of the fund, in payment of the mortgage debt, but the trustees refused to make the transfer, alleging that P. H. Daniell had, in October 1834, executed an assignment to the said J. Long and one R. Higgins of all his estate and effects, including the fund in question, upon certain trusts for the benefit of his creditors. The plaintiff thereupon filed his bill against T. Dewell, J. Long, R. Higgins, and P. H. Daniell, for payment of his debt and interest, and for a transfer of the fund. J. Long, by his answer, stated that, in June 1834, a fiat in bankruptcy was issued against P. H. Daniell, under which he was adjudged a bankrupt, but that the fiat was afterwards annulled by the consent of the creditors, in consideration of an agreement by the bankrupt to assign all his estate and effects to trustees for the benefit of his creditors; that accordingly P. H. Daniell, by deeds of the 27th and 28th of October 1834, conveyed and assigned the whole of his estate and effects to J. Long and Higgins upon the trusts therein mentioned, for the benefit of P. H. Daniell's creditors; that in 1836 a suit was instituted to carry into effect the trusts of the last-mentioned indenture, and that such suit was pending at the time T. Dewell received the notice of the plaintiff's mortgage. Long also admitted, by his answer, that he had never acted as trustee of the fund of 3331. 6s. 8d. consols, and also that T. Dewell had not received notice of the deeds of October 1834 until long after he had received notice of the plaintiff's mortgage; but he submitted that, inasmuch as he and Dewell were named as co-trustees of the fund, Dewell must be presumed to have had notice of the deed of October 1834, which would therefore be entitled to priority over the plaintiff's mortgage security. Mr. Temple and Mr. J. H. Palmer, for the plaintiff. The notice which Long had, as a party to the deed of 1834, not being communicated to his co-trustee, will not be sufficient to give him priority-Timson v. Ramsbottom (1). But the trusts of the stock were confined to the life of A. Kingston; after that, Dewell and Long were trustees for the executrix; and, the legacy not being assented to, notice to the executor was necessary; and the notice given by the plaintiff to the executor will entitle him to the priority. Mr. K. Parker and Mr. Saunders, for J. Long. The notice which Long, the cotrustee of the fund, had, is sufficient Smith v. Smith, 2 Cr. & Mee. 231; s. c. The suit also for carrying into execution the trusts of the creditors' deed was pending at the execution of the plaintiff's deed, and was notice to Dewell. Mr. Bacon, for Higgins, contended that notice to both the trustees of the fund was necessary. Mr. Tinney and Mr. Bennett, for Dewell. April 10.-WIGRAM, V.C.-The question of assent does not appear to be raised upon the pleadings. In the absence of any assent, notice to the trustees, in whose name the fund stood, would not have been sufficient without notice to the executor. If notice to the trustees was sufficient, notice to one of them would be notice to all, so long as that one lived. Lord Langdale, in Timson v. Ramsbottom, has certainly made some observations which might bear a contrary interpretation, but his judgment in that case proceeded entirely on the death of the trustee. With regard to the lis pendens, that was only a general suit, and not a claim for this specific legacy, and did not amount to notice of Long's claim upon this fund. I will, however, consider the point as to the assent. April 11.-WIGRAM, V.C.-I have looked into the pleadings, and I find that the allegations in the bill and answer do not state a case of assent by the executor. The order therefore will be, that it not appearing that the legacy to P. H. Daniell had been assented to at the time of the plaintiff's mortgage security, the notice which the (2) 2 Keen, 35. |