1840-Price v. Berrington.

case has been found in which the point has been directly determined in the English tribunals; but the cases which have been cited show that the courts in England have decided upon principles which do not in any degree conflict with the principles upon which the courts in other countries have proceeded.

The contract of the acceptor, which alone is now to be considered, is to pay in England; the non-payment *of the money when the bill [*285] becomes due is a breach in England of the contract which was to be performed in England. Upon the breach the right to damages or interest immediately accrues; interest is given as compensation for the non-payment in England, and for the delay of payment suffered in England; and I think that the law of England, i. e. the law of the place where the default has happened must govern the allowance of interest which arises out of that default; and consequently that the exception which relates to the interest is well founded.[4]

At the time when there is a breach of the contract of the acceptor by nonpayment in the country where payment is contracted to be made, there may be a cotemporaneous breach of contract by the drawer or endorser in the country where the contract was entered into,-where the bill was drawn and the endorsement made: and the consequences of that breach of contract may be governed by the law of the country where it takes place.[5]

1810 February, 15.

PRICE V. BERRINGTON.

Defendants admitted by their answer, that all persons interested were parties to the suit, and at the hearing objected for want of parties, and the objection prevailed: Held, that having misled the plaintiff, they ought to pay him the costs of the day.

THIS bill was filed to set aside a deed of 1809, on the ground of fraud, and of the vendor being at the time a lunatic. The plaintiff had been found

[4] "The general doctrine is, that the law of the place where the contract is made, is to determine the rate of interest, when the contract specifically gives interest; and this will be the case, though the loan be secured by a mortgage on lands in another state unless there be circumstances to show that the parties had in view the laws of the latter place in respect to interest. When that is the case, the rate of interest of the place of payment is to govern. According to the case of Thompson v. Pawles, (2 Sim. 194,) it is now the received doctrine at Westminster Hall, that the rate of interest on loans was to be governed by the law of the place where the money was to be used or paid, or to which the loan had reference; and that a contract made in London, to pay in America, at a rate of interest exceeding the lawful interest in America, was not a usurious contract, for the stipulated interest was parcel of the contract. This is also the law in this country." 2 Kent's Comm. 461. See also Harvey v. Archbold, 1 Ryan & Mood. 184. Hosford v. Nichols, 1 Paige, 220. 2 Sim. 211, n. 1. Pratt v. Adams, 7 Paige, 616. 2 Kent's Comm. 460, n. (c.) and authorities there cited. Story's Conflict of Laws, § 291-306, where both the common and foreign law, on this subject, seem to be nearly, if not quite exhausted.

[5] Vide 2 Kent's Comm. 461. n. (b) Where the above paragraph is cited with little variation, and with evident approbation.

1840.-Aldworth v. Robinson.

lunatic by an inquisition in 1837, which asserted that the lunatic had lucid intervals from the year 1796; he now claimed to have the estate conveyed to him in fee. It appeared, however, that in 1805, he had executed another deed, which gave interest in the estate to his wife and children.

[*286]

*In answer to a charge in the supplemental bill, some of the defendants stated, "that they believed it to be true that there were not any other persons than the persons in the supplemental bill named,” (viz., those made parties to the suit,) "who had or claimed to have any estate, right, title or interest in or to the said estate."

Mr. Kindersley and Mr. Roll at the hearing, objected that the suit was defective, on the ground that the wife and children were not parties to the suit.

Mr. Pemberton and Mr. Hull, contra, contended, that as the inquisition found that the plaintiff had been a lunatic from 1796, the deed of 1805 would be equally void with that of 1909, and that the parties claiming under it were not necessary parties; that if the objection succeeded, theefendants, who had made the above admission and thereby misled the plaintiff, ought to pay the costs of the day. They cited Harvey v. Cooke.(a)

Mr. Wood, for other parties.

THE MASTER OF THE ROLLS :—It is said, that it is clear that the wife and children have no interest, because the finding of the inquisition overrides all the deeds; but the inquisition is not binding on persous who were not parties to the proceeding; as against them it is presumptive evidence only of the time of the lunacy.(b)

On the other point, it is clear that the defer dants have misled the plaintiff, by stating that all the necessary persons were parties to the suit; having misled the plaintiff, they must pay him the costs of the day.

[*287]

1840 February 17

*ALDWORTH v. ROBINSON.

Form of decree in a foreclosure suit, where A., whose estate was already mortgaged to the plaintiff. joined B., as his surety, in a mortgage to the plaintiff of both their estates for a further sum. An application to the Master of the Rolls, on the certificate of plaintiff's counsel, to advance a cause as a short cause, was refused on the defendant's counsel stating that it was not a short cause, and the costs of the motion were reserved. The cause afterwards came on in its regular course, when the court, being of opinion that the cause was a proper one to be heard as a short cause, gave to the plaintiff the costs of the motion.

IN 1826, Mr. Lindsey's estate was subject to several mortgages, amounting to 50007., and which, by a transfer in that year, became vested in the plaintiff.

In the same year, Mr. Robinson applied to the plaintiff, Mr. Aldworth, for

(a) 4 Russ. 34.

(b) Frank v. Mainwaring, ante, p. Ì15. [126, n. 1.]

1840.-Aldworth v. Robinson.

the loan of 6000. on mortgage of his estates, which the plaintiff agreed to advance on Lindsey also securing the sum on his estates; Robinson and Lindsey accordingly mortgaged their respective estates to the plaintiff for the sum of 60007.; they afterwards, in 1828, executed to the plaintiff a further charge on their estates for 500l.

The plaintiff having, as before stated, obtained a transfer of the mortgages on Lindsey's estate for the 5000/., filed this bill of foreclosure.

The plaintiff, in May, 1839, moved that the cause might be advanced and heard as a short cause, but the application was refused on the ground of its being a foreclosure suit.(a) After the general order of the 9th of May, 1839, b) the motion was repeated on the certificate of the plaintiff's counsel of its being a short cause. The defendant's counsel having stated his opinion that it was not a proper cause to be heard as a short cause, the Master of the Rolls at once refused the application, but reserved the costs of the inotion until the hearing.

*The cause now came on for hearing, and the only questions were, [*288] as to the form of the decree, and as to the costs of the motion which had been reserved.

Mr. Pemberton and Mr. G. Russell, for the plaintif, cited Becket v. Micklethwaite.(c)

Mr. Willcock and Mr. Roupell, contra, for the defendants.

Mr. Pemberton, in reply.

THE MASTER OF THE ROLLS:-It appears in this case that there were several mortgages amounting to 5000l. upon Lindsey's estate before the year 1826. In the year 1826, Robinson mortgaged his estate, which is quite distinct, for the sum of 6000l.; and at the same time, Lindsey executed deeds, whereby he made his estate, called the Grove End Farm, which was then. subject to prior debts amounting together to 5000Z., liable for Robinson's mortgage for 60001. In the year 1823, the further sum of 500!. was raised by Robinson, and upon that occasion Lindsey executed a deed, by which he added the 500l. to the charge previously subsisting upon his estate; the consequence of which is that Lindsey's estate is charged with the original sum of 50007., and also with the additional sum of 65007., but Robinson's estate was never subject to more than the 6500, care therefore must be taken not to charge it with more. The plaintiff being entitled to both the debts, there must be an account taken of what is due to him upon each of them; and upon payment of both, Lindsey's estate is to be redeemed, but Robinson's estate must be made subject to the 65007. only.

*As to the costs of the motion, I think the plaintiff entitled to [*289] them, for all that was required in this case to be brought before the court was a simple statement of the facts.(d)

(a) 1 Beavan, 99, note (d). (b) Ib. x. (c) 6 Mad. 199; and Seton on Decrees, 175. (d) For the decree in this case see Reg. Lib. A. 1839, fo. 874. It will be found rather complicated in consequence of the death of Lindsey, and of his having devised part of his mortgaged estate

1839.-Wood v. Hitchings.

WOOD v. HITCHINGS.

1839: December 9. 1840: February 18.

An appeal was pending in the Privy Council from a sentence of the Ecclesiastical Court rejecting the testamentary papers of the deceased and declaring an intestacy; limited administration pendente lite had ceased by the sentence, and an inhibition had issued from the Privy Council which inhibited the Ecclesiastical Court proceeding. There being no person in the mean time authorized to protect and collect the estate, Held, that these circumstances, of themselves alone justified the appointment of a receiver by this court.

Held also, that a receiver might in such a case be granted on the application of a party appellant, who, assuming the decision of the Ecclesiastical Court to be correct, had no interest in the estate of the deceased.

And thirdly that the circumstance of there being no person in whose name an action might be brought to recover the property is not a sufficient objection to the appointment of a receiver. JAMES WOOD, of Gloucester, banker and mercer, died on the 20th of April, 1836, possessed of property stated to amount to nearly 1,000,000l. sterling. On his death two testamentary papers, wafered together and dated respectively the 2d and 3d of December, 1834, were propounded for probate in the Prerogative Court, by Mr. Chadborne, Mr. Osborn, Mr. Surman and the plaintiff, Sir M. Wood; the effect of these papers conjointly, was to appoint these four gentlemen executors, and to give them the whole of the residuary real and personal estate of the testator. The validity of these instruments being disputed by parties claiming to be the next of kin of the deceased, a suit, in consequence, arose in the Prerogative Court.

[*290]

*Pending these proceedings, a third testamentary paper of the deceased, dated July, 1835, was sent anonymously by post to one of the alleged next of kin under very extraordinary circumstances. This paper was torn and partly burnt, and referred to a prior codicil which had never been produced; it was accompanied by a pencil writing, stating that the enclosed had been saved out of many burnt. This paper bequeathed legacies to a considerable amount, and gave the rest of the property of the deceased to his executors. This paper was also propounded by some of the legatees claiming under it.

On the 4th of June, 1836, by an interlocutory decree, letters of administration pending the suit, and limited to the sale of 42431. stock and to the receipt of the rents, and to the management of the leasehold estates, and to the payment of all sums due from the deceased on account of his banking concerns, was granted by the Prerogative Court to Mr. Maddy.

On the 20th of February, 1839, the Prerogative Court decided against the force and validity of the three several testamentary papers, and consequently that the deceased died intestate.

The plaintiff, together with Chadborne and Osborn, appealed to the Privy Council from this decision, as did some of the legatees claiming under the

to his daughter Lydia, discharged of all mortgages, &c., and his residuary real and personal estate to the defendant Robinson.

1839-Wood v. Hitchings.

third instrument. That court, according to the usual course of practice, issued an inhibition, whereby the Prerogative Court was inhibited and restrained from further proceeding in the said suit, or upon the sentence or decree pronounced therein.

This bill was filed on the 3d of August, 1839, by Sir M. Wood alone, against the other alleged executors, the next of kin of the deceased, some of the legatces *under the third instrument, and Mr. Maddy, [*291] stating the above facts, and further stating, that the suit in the Prerogative Court being no longer pending, the administration granted to Mr. Maddy had determined, and that there was not, as the plaintiff was advised, any person having any lawful power or authority to sell the stock in trade, furniture, plate and other household effects remaining unsold, or to collect, get in or receive the debts or the interests thereon, or the rents and profits of the leasehold estates, or the dividends and interest of said stocks and funds.

The bill contained very searching and minute inquiries as to the third alleged testamentary paper, as to the evidence of its execution and of its being signed, and all the circumstances connected with its being brought forward, and the result of all inquiries in respect of the same; and it prayed that the defendants, who were the alleged next of kin and the parties claiming under the third testamentary paper, who were respondents in the appeal to the Privy Council "might make a full disclosure and discovery of the matters aforesaid, and that the plaintiff might have the benefit thereof," and that the personal estate of the deceased might be secured pending the appeal and until a legal personal representative of the deceased should be duly appointed, and that in the meantime a receiver might be appointed, and that an account might be taken of the receipts and payments of Edwin Maddy in respect of the personal estate of the deceased.

It appeared in the Ecclesiastical Court, that the first and second testamentary papers, though propounded together, had been wafered and placed in an envelope by one of the executors, and the court, in giving judgment, had observed strongly on the mode in which the *case had been [*292] brought forward by the executors, whom it condemned in costs.

It appeared, also, that the plaintiff in this case had filed, on the 27th of July, another bill similar to the present, and marked it "before the Lord Chancellor," and in which he had given a notice of motion before the ViceChancellor similar to the present, but that on the 1st of August, the plaintiff obtained an order of course to dismiss the bill, and on the 3d of August filed this bill, and gave a notice of motion before the Master of the Rolls similar to that before given in the Vice-Chancellor's court.

A motion was now made on behalf of the plaintiff for a receiver of the personal estate of the deceased.

Sir C. Wetherell, Mr. Turner and Mr. Bethell, for the motion, contended that the administration pendente lite to Mr. Maddy, which was limited to a particular part of the testator's property, had expired upon pronouncing the