An issue was directed to try whether the lease was deposited as a security for the sum advanced by the plaintiff to the bankrupt. Upon the trial the jury found it was deposited as a security *. The Reporter has been informed that this cause came on afterwards (though he has not been able to ascertain the date) before Lord Thurlow, on the equity reserved, when his Lordship ordered that the lease should be sold, and the plaintiff paid his money. The same point has been since determined in the cases of Featherstone v. Fenwick, May 1784, and Harford v. Carpenter, 17th and 18th of April, 1785, where Lord Thurlow held that the deposit of deeds entitled the holder to have a mortgage, and to have his lien effectuated; although there was no special agreement to assign, the deposit affords a presumption that such was the intent (a). (a) The determination in the present case has been repeatedly reprobated and regretted, but the doctrine which it establishes has been considered too firmly settled to be altered. The cases upon the subject of equitable mortgages, are Edge v. Worthington, 1 Cox, Hankey v. Vernon, 2 Cox, 12. Ex parte Bulteel, ib. 243. 211. Ex parte Coming, 9 Ves. 115. Ex parte We 1783. RUSSEL 27. RUSSEL. Ex parte CRINSOZ. where a party has clearly distinct demands on a bankrupt, THE house of Brown and Collinson having several demands on that of Rabone and Crinsoz, (which as well as the former had become bankrupt) viz.-A demand secured by an assignment of ships, another by bond, and a third by simple contract; he may sue for proved the simple contract debt under the commission, and brought an action upon the bond.-This was a petition that they might elect to proceed on both at law, or under the commis sion. one, and come under the com Mr. Walker, against the petition. Notwithstanding the case debt. Ex parte Botteril, 1 Atk. 109, a party having debts of different natures, or, where the debts are in different rights, may prove one, and proceed at law for the other. Where the party has proved the debt, and proceeds at law also for the same debt, he may be put to his election. The petitioning creditor cannot elect, but must proceed under the commission; Ex parte Ward, 1 Atk. 153, but any other creditor may elect. Mr. Arden, in support of the petition. In this case it is really the same debt, the bond and the assignment both being to secure whatever was, or should become due. VOL. I. Lord 1785. Ex parte CRINSOZ. [ 271 ] Lord Loughborough, Lord Commissioner.-The petitioning creditor cannot proceed in any way but under the commission; he is precluded. Any other creditor has his election, but he cannot take a dividend under the commission, and take the bankrupt in execution for the same debt.-He cannot take a dividend without giving up his execution; but if he has different debts he may have different remedies. But this case is different from all those in the books, there being an assignment, a bond, and another debt. If this is not covered by either of the others, they may come under the commission for that duty. But I have some doubts as to the bond. I think the creditor is bound to prove all the debts that would be covered by the certificate. In Botterill's Case, the bankrupt was in execution when the commission issued. In Ward's Case, it was held that being assignee did not preclude from election. It is no where held that the creditor may prove parcel of his debt under the commission, and sue for the rest at law, where it is the same debt, and of such a nature as to be proveable under the commission: a mortgagee cannot take a dividend on the mortgage and sue upon the bond. Here the bond and the assignment seem to be the same debt. If a mortgagee has a separate debt, which cannot be tacked to the mortgage, he may proceed differently for that debt. Ashhurst, Lord Commissioner.-In any case, it is hard that a creditor should both prove, and bring an action, even where the debts are distinct; but here the case is very different. Hotham, Lord Commissioner.-I do not see the good sense of distinguishing the petitioning creditor from any other (a), true, he has made his election, but that applies to any creditor who has proved his debt. (a) Vide Ex parte Callow, 3 Ves. 1. Ex parte Bryant, 1 Ves. & Bea. 215. (b) That a creditor having debts due to him from the bankrupt of distinct natures, or in different rights, might prove one under the commission, and proceed at law for the other, was stated by Mr. Cooke, in the former edi. The petition stood over (b). tions of his valuable work, and considered as clear law by Lord Eldon, in Ex parte Grosvenor, 14 Ves. 587. By the 49 Geo. 3. c. 121. s. 14. this power is taken away. For the cases upon this section of the act, vide the last edition of Co. B. L. 151, also Watson v. Medex, 1 Selw. & Barn. 121. CAMPBELL CAMPBELL Vv. The Earl of RADNOR. ARCHIBALD Hutchinson, having a considerable estate in 1783. S. C. 18 Serj. Hill's MSS. 139. A. H. by will, gave money upon mortgage to a charity in Ireland: the wife, by her will, affirming that be quest, held to be assets of the testator, and therefore good, though out of land. There being se land, and also a large personal estate upon mortgage on Lords Commislands in Norfolk, by his will, bearing date the 22d July, 1740, gave sioners, Lord to trustees a sum of £7,000 to be laid out, after the death of his Loughborough, Ashhurst, Howife, in the purchase of lands in Ireland, the rents and profits to tham. be distributed among poor persons in Ireland, who should appear to be related to him, (though ever so remotely) or, in default of poor relations of his, to poor persons in the county of Antrim in Ireland. Elizabeth Hutchinson his wife, proved that will, and afterwards, by her will dated 1st August, 1761, reciting the will of Archibald Hutchinson, and that his personal estate was out upon mortgage in Norfolk; she ordered her real estate to be sold, and the £7,000 to be paid to the uses declared by the will of Archibald Hutchinson. She, by the same will, gave several legacies, among others, to Mary Call £10, also to Mary Wooldridge and Barbara Smith, other legacies. By a codicil dated in 1768, she gave to Mary Call £40, instead of £10 in the will-to Mrs. Wooldridge, for her and her brother £100,-to Barbara Smith £200. By a second codicil in 1777, she gave to Mary Call £40 instead of £10 in the will-to Mary Wooldridge, for herself and family, £100-to Barbara Smith £300. The prayer of the bill was to establish the will, and that the second codicil should be declared to have revoked the first. Mr. Madocks.-The testator's whole personal estate being upon mortgage in Norfolk, could not be applied to the charitable uses in Ireland; Attorney-General v. Meyrick, 2 Ves. 44 and her will confirming it, and ordering the estate to be sold to pay the £7,000 is certainly void. As to the first and second codicils to the will of Elizabeth, the second was made under a variation of circumstances, to enlarge some of the legacies; she considered the first codicil as being to be immediately destroyed after the execution of the second. For this fact, Mr. Madocks offered to read the evidence of Hugh Jackson the attorney, who prepared the second codicil, which being opposed Lord Loughborough.-If the reading of the evidence of Jackson is opposed here, I think you had better go upon it to the ecclesiastical court, for a repeal of the probate of the codicil. That evidence would have been a ground to exclude the codicil from the probate. The bequest to the charity is good, being to a charity in Ireland (a), if it was not made otherwise by the cir (a) See this case cited in Curtis v. Oliphant v. Hendrie, post, 571. Hutton, 14 Ves. 540, and particularly a an admission of dicts [272]s to will, some of repetitions of others, the court declared them to be only substitutions. which were bare 1783. CAMPBELL v. The Earl of [ 273 ] cumstance of the money being upon mortgage on an estate here, which could not be liable to the devise to a charity; but it is too late to take that objection on the will of Elizabeth, she admitting, by the devise to the same uses, that she had personal estate of the testator; she is therefore paying a debt, not giving money that is upon mortgage, but only admitting that she had £7,000, personal estate from him: which, as she was executrix and residuary legatee, is admitting a debt to his estate. Although the Court will not marshal assets for a charity, yet it will make the legatees go upon the mortgage (a). The cause stood over, and coming on again a few days after, the Lords Commissioners pronounced a decree, that the second codicil was a mere substitution for the first; and, therefore, that the defendants were entitled to the legacies given by the first codicil only, and, the plaintiffs submitting, the charitable legacies were also directed to be paid. (a) Vide The Attorney-General v. Earl of Winchelsea, post, vol. iii. p. 373. Lords Commis sioners Ashhurst and Hotham. COOMBES . GIBSON (a). A charge of debts THE only question in this case, was, whether in failure of the personal estate, copyhold lands were liable to debts, under the common commencement of a will, "As to all my worldly estate, I desire all my just debts should be first paid.” upon land, copyhold lands are liable as well as freehold (b). Mr. Price for the plaintiff-cited Cloudesly v. Pelham, 1 Vern. 411.-2 Vern. 229. Alcock v. Sparhawke, 1 P. W. 444.2 Ves. 582. where a surrender was supplied for wife and children, and extended to creditors. Pr. Ch. 449. Harris v. Ingledew, 3 P. W. 96. Hassen v. Hassen, 1776, where there were portions for children, and an annuity for their education, to be paid by the executor: but Lord Bathurst thought the heir liable. Mr. Richards, for the defendant.-The copyhold estate is not the natural fund for the payment, even of the bond debt of the ancestor. It is too late to argue now, that freehold lands are not charged by these words; but there is no case where copyhold has been held charged, where the testator had freehold. In Tudor v. (a) The entry of this case in the Mr. Richards stated from his recollection of the present case, that the freehold estate was nothing. Anson, Anson, 2 Ves. 582, there was no freehold estate, and therefore the words shewed the testator's intent, which must take effectbut does any such intent appear here?-Here is a freehold estate, which is the proper fund.-In Callis v. Casborn, 1 Eq. Ab. 124. Pr. Ch. 407.-Lord Chancellor would not supply the defect of a surrender, where there was freehold estate. Here the surrender is satisfied by the other devises. Lord Commissioner Ashhurst.-The doctrine is, that where the introductory words make the real estate liable, it shall extend as well to the copyhold as to the freehold lands.-The freehold is as unnatural a fund for the payment of debts as the copyhold. It is admitted, that if there had been no freehold, the copyhold would have been liable. If the freehold had been devised to one person, and the copyhold to another, the freehold might have been first applied (a). But I am clearly of opinion, that they both are liable. Lord Commissioner Hotham.-If the copyhold is charged by the will, there is nothing in the case to discharge it. The law follows the testator's intention, to apply the whole real estate to the payment of debts, which covers the copyhold as well as the freehold (b). (a) See as to this Binby v. Eley, post, vol. ii. 325. (b) See this case particularly cited in Growcock v. Smith, 2 Cox, 297. For the general doctrine upon the subject of supplying surrender of copyhold, vide Lindopp v. Eborall, post, vol. iii. 188, and the cases cited in the Editor's note; the distinction is stated to be, that where a testator having both freehold and copyhold, but not having 257. 1783. ~ COOMBES บ. GIBSON. [274] The |