1842.-Brandon v. Aston. Bullock v. Stones(a) was the only case in favor of paying the shares immediately. Mr. Ruseell, for the adult children, cited Shepherd v. Ingram,(b) Mills v. Norris, (c) and Scott v. Earl of Scarborough,(d) contending that after-born children were not entitled. [The Vice-Chancellor.-The rule recognized in the case of Whitbread v. Lord St. John(e) as to after-born children is artificial, and I think only to be adopted when necessity requires. Lord Eldon in cases coming very near it, but distinguishable from it, held after-born children to be entitled.][1] THE VICE-CHANCELLOR said, that he considered the case so circumstanced as to justify him at present in withholding the capital from the adult children. He should, however, allow them the interest of their shares, which, if not otherwise right, might be supported by analogy to the course frequently taken by the Court as to maintenance. *LET one-third of the dividends of the fund in Court be paid to one of the [31] adult children, one other third to the other, and let the remaining third be carried to the account of the contingent share of the infant, without prejudice to any claim which after-born children of the father may have, and without prejudice to any claim which the insolvent may have. 1842 Nov. 9th, 12th. : TEED V. CARRUTHERS. On the 2nd of May, 1837, freehold and copyhold estates were mortgaged by C. to T., subject to a proviso for redemption on payment of 10,000l. on the 2nd of May, 1844, with interest half-yearly in mean time. Prior to any default, C. paid to T. [1] As to vested interests liable to be divested on the happening of a contingency, or to open in order to let in after-born children, see Kimberly v. Tew, 2 Conn. & Law. 366. McDonald v. Brice, 2 Keen, 284. Nodine v. Greenfield, 7 Paige, 544. Ellis v. Maxwell, 3 Beav. 587. Nayler v. Wetherell, 4 Sim. 114, 19. Boughton v. James, 1 Collyer, 26, 42. Martin v. Glover, Id. 269, 72. Salisbury v. Petty, 3 Hare, 86, 93. 1842.-Teed v. Carruthers. 70001. by cheque, and gave him two bills of exchange, drawn by C. & Co., upon and accepted by C., for 16201., at three months after date, and for 1500l. at six months after date, being together the total amount of the mortgage debt and interest. Upon the receipt of the cheque and two acceptances, T. signed the following memorandum :-" London, 23rd December 1839-Received this day of C., the sum of 70007. in cash, and two bills of exchange, as under, for 31201., drawn by C. & Co. of M., upon and accepted by the said C., one dated 16th December, for 16201., the other dated the 23rd of December, for 1500l., and which cheque for 70001. and bills for 31201., making together 10,1201., are in full of principal and interest due to me upon a mortgage of C.'s freehold property in K. and S. for 10,000l., and I do hereby undertake whenever required, to execute a conveyance of the said property. (Signed) T." T. gave this memorandum together with the title and mortgage deeds of the premises to C. The cheque for 7000l. was paid, but both the bills of exchange were dishonoured; C. afterwards conveyed all his estate to a trustee for the benefit of his creditors, and then became bankrupt. T. never reconveyed the premises :-Held, that as between T. and C., and his assignee by deed, and his assignees in bankruptcy, the receipt of the cheque and bills, and the giving the above memorandum, did not discharge the mortgaged premises from the mortgage, but that on their dishonor, T. was entitled to a decree against them all for the restoration of the title and mortgage deeds, and to a decree of foreclosure.[1][2] A party having an interest in the subject matter of a suit by virtue of a partnership, had parted with his interest prior to the date of filing the bill. The plaintiff nevertheless made him a defendant, and he by his answer disclaimed. The plaintiff was ordered to pay such defendant's costs, without being entitled to them over, the Court being of opinion that the plaintiff might have easily ascertained the fact of the assignment, and it not appearing that he had attempted to do so. Although a defendant disclaim all interest in the suit at the bar, and his disclaimer is entered by the registrar, yet the Court will retain him on the record, if there be any question whether he has documents relating to the suit in his possession which ought to be delivered up; and an inquiry will be directed on the subject. THE plaintiff having lent to the defendant Carruthers, £10,000; by indentures of lease and release, dated the 1st and 2nd of May, 1837, between the defendant Carruthers, of the one part, and the [1] Where after the death of the obligor on a bond, his executors and devisee in trust under his will, by which he had charged his real estate with payment of his debts, gave a new bond on his own name for the same amount to the obligee who delivered up the original bond, and signed an endorsement thereon, stating that he had accepted the new bond "in lieu of it." The obligor in the new bond having afterwards become bankrupt, Held, in a creditor's suit for administration of the testator's estate, that the obligee had no right of proof upon the original bond. Shore v. Shore, 2 Phillips, 378. [2] For cases of substituted securities and changes in, see Hardwick v. Mynd, 1 Anstr. 111. Saunders v. Leslie, 2 Ball. & B. 509. Lee v. Lockhart, 3 Mylne & Cr. 302. 1842.-Teed v. Carruthers. plaintiff of the other part, certain freehold and copyhold lands, forming an estate, called the Mitchell's Estate, and Waghorn Gate Farm, were, as to the freehold, released, conveyed, and assured unto the plaintiff, his heirs and assigns, and as to the copyhold, covenanted to be duly surrendered to him *and his heirs, subject to a proviso therein contained for [*32] the redemption and reconveyance thereof, on the payment of the £10,000, on the 2nd May, 1844, with interest, at £5 per cent. per annum, in the meantime, half-yearly, on the 2nd of November, and the 2nd of May. The indenture of release contained a proviso, that it should be lawful for the said defendant Carruthers, his heirs, executors, or administrators, to pay off the said sum of £10,00, or any part thereof, not being less than £1,000 at each payment, at any time before the said 2nd May, 1844, on giving six months' notice of each intended payment; but that it should not be lawful for the plaintiff, his heirs, executors, administrators, or assigns, to call in any part of the said principal before the said 2nd May, 1844, provided the said interest were punctually paid; but in case the same interest, or any half-yearly payment thereof, should be in arrear for the period of 30 days after the same should become due, then it should be lawful for the plaintiff, his heirs, executors, administrators, and assigns, to call in and require payment of the said principal sum and interest in like manner as if the time fixed for the payment thereof had expired. In the month of December, 1839, the defendant, John Carruthers, gave to the plaintiff a cheque for £7000, on Messrs. Coutts & Co., in part discharge of the principal moneys due on the mortgage. He also gave to the plaintiff two bills of exchange, one for £1620, and the other for £1500, intended to be in discharge of the £3000, residue of the principal mortgage-money, and the interest then due on the security, which amounted to £120. Upon the receipt of the cheque and bills of exchange, the plaintiff gave a receipt for the mortgage-money and interest. The cheque for £7000 was at first dishonored by Messrs. Coutts & Co., but it was shortly afterwards duly *paid. [*33] The bill for £1620 was discounted by Messrs. Coutts & Co. for the plaintiff, and it became due in their hands, and was dishonored. 1842.-Teed v. Carruthers. Upon this the defendant Carruthers paid Messrs. Coutts & Co. £120, part thereof in cash, and gave them a promissory note, drawn by him in favor of the plaintiff for the residue, which note was indorsed by the plaintiff as his surety. Carruthers at the same time deposited with Messrs. Coutts & Co. all the title deeds of the mortgaged property (except the mortgage deeds to the plaintiff, which he Carruthers retained), together with a memorandum in writing, by way of equitable mortgage, as a further security for the due payment of that note. The note, having become due, was dishonored, and the plaintiff paid the amount due thereon to Messrs. Coutts & Co. before the date of the filing the bill. The bill of exchange for £1500 remained in the plaintiff's hands, and became due on the 26th of March, 1840, and was dishonored in the hands of Coutts & Co., and remained unpaid at the time of filing the bill. The plaintiff, on the 8th of July, 1840, filed his original bill stating the above facts, and praying that Messrs. Coutts & Co. might be ordered to deliver up to the plaintiff the title-deeds of the mortgaged property and the memorandum of equitable mortgage; and that it might be declared that the plaintiff was entitled to a lien on the mortgaged property, not only for what he had paid Messrs. Coutts & Co. but also for the residue of the sum of £3000 and interest. And that the defendant John Carruthers might be ordered to redeliver to the plaintiff the mortgage deeds and the receipt, and that he might in the meantime be restrained by injunction from receiving the said title-deeds so deposited, or destroying or parting with the mortgage deeds or the receipt or any title-deeds relating to the mortgaged prop[*34]_erty, and that Messrs. Coutts & Co. might *in like man ner be restrained from delivering up the title-deeds deposited with them to the defendant Carruthers or to any person other than the plaintiff, and for redemption, and in default of redemption for a foreclosure of the equity of redemption in the premises. Subsequent to the date of the filing of the plaintiff's bill by indentures of lease and of release and appointment, dated the 7th and 8th of August, 1840, the defendant Carruthers conveyed 1842.-Teed v. Carruthers. the mortgaged premises to the defendant Hoggart and his heirs. upon trust for sale, and to stand possessed of the proceeds upon trusts for benefit of the creditors of defendant Carruthers who should execute that deed. These deeds were executed by defendants Carruthers, Hoggart, and several creditors of Carruthers. On the 21st of September, 1840, a fiat in bankruptcy was issued against Carruthers, upon which and prior to the 12th of October, 1840, he was declared bankrupt. On the 12th of October, 1840, the defendant Carruthers answered the plaintiff's original bill, and by his answer stated, as the fact at the hearing appeared to be, that, in March, 1839, he took his son into partnership with him under the firm of “ Carruthers & Co.," that the two bills of exchange of December, 1839, given by him to the plaintiff for £1620 and £1500, were respectively drawn by the firm of Carruthers & Co. of Manchester, upon and accepted by the defendant Carruthers in favor of the plaintiff, and that the sum of £120, part of the first bill (for £1620,) was for interest accrued due on the £10,000 (but not payable at that time.) The defendant's answer then proceeded to state that, in pursuance of the said arrangements, the plaintiff, upon such payment being made to him as last aforesaid, delivered up to the defendant the aforesaid mortgage deeds and the title-deeds, and at the same time gave to the defendant a memorandum or receipt in writing signed *by the plaintiff [*35] as follows:-" £7000, London, 23rd December, 1839. Received this day of John Carruthers, Esq., the sum of £7000 in cash, and two bills of exchange as under for £3120, drawn by Messrs. Carruthers & Co of Manchester upon and accepted by the said John Carruthers, one dated 16th of December for £1620, the other dated 23rd December for £1500, and which cheque for £7000 and bills for £3120, making together £10,120, are in full of principal and interest due to me upon a mortgage of Mr. Carruther's freehold property in Kent and Sussex for £10,000, and I do hereby undertake when required to execute a conveyance of the said property. Thomas Teed." The defendant in his answer set out the indentures of conveyance and covenant to surrender to Hoggart, and the trust deed for the benefit of creditors, VOL. II. 5 |