principal sum of the trust funds" means no more than that the entire estate should be liable in the event of the residue being insufficient.

Sanders v. Miller, 25 Beav. 154. Ripley v. Moysey, 1 Keen, 578. Mr. Selwyn and Mr. Druce followed on the same side.

Mr. Baggallay and Mr. O. Morgan, for the executors and residuary legatees.-The question whether the debts, legacies and the costs of and incident to the administration of the estate are to be paid out of the specific legacies must be answered in the affirmative. There was a clear and expressed intention to exonerate the general estate, and there was as clear an indication of the fund intended to pay them. The specific legacies, therefore, are liable to the burthen.

Browne v. Groombridge, 4 Madd. 495. Phillips v. Eastwood, 1 Lloyd & G. 297. Choat v. Yeats, 1 Jac. & W. 102. 2 Jarman on Wills, 639. Mr. Lloyd, in reply.-Express words or a satisfactory inference are as essential to charge specific legacies as they are to charge real estate. The executors were legatees as well as residuary legatees, but only "subject to the provisions herein made." There were no express words to exonerate the residue; and no residue could be ascertained until all the liabilities it was subject to were satisfied.

Haslewood v. Pope, 3 P. Wms. 322. Bootle v. Blundell, 19 Ves. 518; s. c. 1 Mer. 193.

The MASTER OF THE ROLLS.-It has been argued, on behalf of the residuary legatees, that the general personal estate is exonerated from its undoubted liability to pay the debts, legacies, and other expenses, when the testator gives a portion of his personal estate, and especially directs that it shall be subject to the payment of those charges. In the present case the testator must be considered to have selected a part of his estate, and to have made it liable to pay what otherwise the general personal estate would have been liable to. Browne v. Groombridge it is by no means clear that the trust imposed upon the executors made any difference in the result. Here there is not only a direction that the

In

principal sum of the trust funds "shall be liable to and applicable by the trustees to the payment of my just debts, testamentary and other expenses and legacies," but in the foregoing parts of the will he has twice said that he gives this property in trust, "subject to the provisions herein made." It is the same as if the provision for payment had been inserted in those places. The property then is given to the plaintiff, but subject to such provisions, and the effect is that the specific property is not given to the widow entire, but subject to the charges which the trustees are directed to pay: the words, therefore, “and other expenses under this my will" include, not only the testamentary expenses, but also the costs of the suit necessary for the administration of the estate of the deceased. The costs, therefore, must be paid out of the trust funds specifically given in trust for the plaintiff in exoneration of the residuary estate which the defendants are entitled to retain without any deduction being made from it.

In 1843 the plaintiff and the defendant entered into partnership as solicitors, for a term of twenty-one years. The partnership was regulated by a deed, dated the 30th of September 1843, by which the partners were entitled to draw out of the business, for their separate use, such sums "as should not in the whole exceed the amount of profits of the partnership business to which they would be respectively entitled: provided that neither party should at any time draw out more than he would be presumptively entitled to at the time of drawing out the same, and not by anticipation or in advance."

No provision was made by the deed for charging interest on monies overdrawn.

In 1860 a decree was made dissolving the partnership, and directing the usual partnership accounts to be taken. It was found on taking the accounts that the defendant had, in every year, drawn out more than his share of the profits; and when the partnership was terminated the sums overdrawn amounted to 2,035l.

The cause came on for further consideration.

Mr. Selwyn and Mr. Wickens, for the plaintiff, considered that although the deed contained no provision for charging interest, yet, as the defendant had drawn out more than he was entitled to, contrary to the express provision of the deed, he was chargeable with interest on such monies as he had improperly withdrawn from the business; especially as it appeared that the partnership had been crippled, and had paid interest to clients and others for monies advanced by them to the firm.

Mr. Baggallay and Mr. W. Forster, for the defendant, were stopped on this point.

by the first mortgagee against the mortgagor and the subsequent mortgagees for payment of his mortgage-money and interest, or for a foreclosure,-Held, by Stuart, V.C., that the above acknowledgment bound the property in mortgage as against the subsequent mortgagees, and entitled the first mortgagee to an account in respect of interest upon his mortgage-money for more than six years prior to the filing of the bill.

But, upon appeal, this decision was reversed by the Lord Chancellor.

By indenture, dated the 9th of May 1831, certain lands at Stowheath, in the parish of Wolverhampton, were demised by Joseph Lane for a term of 1,000 years to Thomas Lane and Walter Sprott, by way of mortgage, to secure the repayment of 1,281l. 12s. 3d. and interest.

Joseph Lane died on the 28th of July 1831, having by will given to his nephew and heir-at-law Thomas Lane, his heirs and assigns, the above lands at Stowheath, and appointed Thomas Lane and his son Farindon Lane his executors.

Walter Sprott died on the 3rd of May 1844.

By indenture, dated the 23rd of February 1846, Sydney Alleyne was appointed a trustee, in the place of Walter Sprott, and the mortgage debt and securities comprised in the indenture of the 9th of May 1831 were assigned by Thomas Lane to a trustee, upon trust to assign the same to Thomas Lane and Sydney Alleyne; and by another indenture of the same date, indorsed thereon, the mortgage debt and the residue of the term of 1,000 years were accordingly assigned to Thomas Lane and Sydney Alleyne, subject as to the latter to the equity of redemption therein.

By indenture, dated the 29th of September 1847, part of the lands comprised in the indentures of the 9th of May 1831 was conveyed to John Jones in fee, for the sum of 2501. freed and discharged from all claim in respect of the mortgage debt of 1,2817. 12s. 3d. and interest.

By indenture, dated the 1st of May 1848, and made between Thomas Lane of the first part, the defendant Maria Lane of the second part, the defendants John Elworthy Cutliffe and Elizabeth his wife of the third part, the Reverend Anthony Boulton and

Harriet his wife of the fourth part, and John Elworthy Cutliffe of the fifth part, after reciting the said indentures of May 1831 and September 1847, Thomas Lane granted and released to Anthony Boulton and John Elworthy Cutliffe, their heirs and assigns, all the premises comprised in the indenture of May 1831, except such as were comprised in the indenture of the 29th of September 1847, upon trust, to let the same as they should think fit, and subject thereto to sell the same hereditaments, and stand possessed of the proceeds upon trust to pay interest, at 57. per cent., on a sum of 8271. 8s. 11d. due to the defendant Maria Lane, and on a sum of 718l. 7s. 9d. due to the trustees of the settlement, dated the 4th of September 1831, of Elizabeth Cutliffe on her first marriage with William Dick deceased, and after payment of such interest to pay the capital so respectively due to the several parties until the whole should be fully paid in proportion to their respective debts, and upon further trust to pay to Anthony Boulton the sum of 461. (being a sum of 300l. therein mentioned and interest thereon), and to pay out of the surplus (if any) to the defendants Maria Lane and Anthony Boulton, and assigns, the sums of 2,2007. and 1,500l. advanced by them to Thomas Lane, for the purposes of the estate of Joseph Lane.

By indenture, dated the 8th of September 1852, in consideration of the sum of 6271. 5s. 3d. another part of the hereditaments comprised in the indenture of mortgage of May 1831 was conveyed to the Oxford, Worcester and Wolverhampton Railway Company, freed and discharged from the mortgage debt of 1,2817. 12s. 3d. and interest.

By indenture, dated the 11th of November 1856, and made between Thomas Lane of the first part, Thomas Lane and Sydney Alleyne of the second part, and the plaintiff John Parker Bolding of the third part, after reciting the indenture of mortgage of May 1831, and that the principal of the mortgage-money thereby secured had been reduced to 4077. 78., and that there was also due on such security the sum of 3021. 158. 10d. for arrears of interest, as the said Thomas Lane did thereby admit, Thomas Lane and Sydney Alleyne, in consideration of the sum of 555l. 14s. 11d. paid to them

by J. P. Bolding, assigned to him the principal sum of 4077. 78. and all interest then due and to become due thereon, and the hereditaments comprised in the indenture of mortgage of May 1831, except such parts thereof as had been sold, for the residue then to come of the term of 1,000 years subject to the equity of redemption then subsisting therein.

Thomas Lane died on the 26th of December 1859, leaving the defendant Farindon Lane his heir-at-law.

Anthony Boulton died in May 1854, having by will appointed executors, of whom the defendant Samuel John Maclaren alone proved the will.

The bill was filed, in July 1861, by John Parker Boulding against Farindon Lane, John Elworthy Cutliffe and Elizabeth his wife, the former a trustee, and both beneficiaries under the deed of the 1st of May 1848, Maria Lane, Samuel John Maclaren, the personal representative of Anthony Boulton, a beneficiary under that deed; and by amendment against Anna Dick and James Jackson Riccard, who claimed to be interested under the marriage settlement of Elizabeth Cutliffe with her first husband, for an account, and asking that the defendants, or some or one of them, might pay to the plaintiff the principal and interest due to him, and in default for foreclosure.

The defendants, J. E. Cutliffe and Elizabeth his wife, by their answer submitted that no more than six years' interest could be recovered by the plaintiff against the

estate.

The question was, whether the incumbrancers subsequent to the plaintiff were bound by the acknowledgment by Thomas Lane, contained in the deed of the 11th of November 1856, of the arrears of interest due at that date, so as to entitle the plaintiff to an account of the arrears of interest from the date of the mortgage, or whether he was entitled to an account of interest upon his mortgage-money for six years only prior to the filing of his bill.

By section 40. of the 3 & 4 Will. 4. c. 27. it is enacted "That no action or suit or other proceeding shall be brought, to recover any sum of money secured by any mortgage, judgment, or lien, or otherwise charged upon or payable out of any land or rent, at law or in equity, or any legacy, but

within twenty years next after a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the mean time some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto or his agent; and in such case no such action or suit or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments if more than one, was given."

Section 42. enacts "That no arrears of rent or of interest in respect of any sum of money charged upon or payable out of any land or rent, or in respect of any legacy, or any damages in respect of such arrears of rent or interest, shall be recovered by any distress, action, or suit but within six years next after the same respectively shall have become due, or next after an acknowledgment of the same in writing shall have been given to the person entitled thereto, or his agent, signed by the person by whom the same was payable, or his agent: provided nevertheless, that where any prior mortgagee or other incumbrancer shall have been in possession of any land, or in the receipt of the profits thereof, within one one year next before an action or suit shall be brought by any person entitled to a subsequent mortgage or other incumbrance on the same land, the person entitled to such subsequent mortgage or incumbrance may recover in such action or suit the arrears of interest which shall have become due during the whole time that such prior mortgagee or incumbrancer was in such possession or receipt as aforesaid, although such time may have exceeded the said term of six years."

Mr. Malins and Mr. Robinson, for the plaintiff. The acknowledgment contained in the deed of the 11th of November 1856 was sufficient to take the case out of the statute. Although by the form of the decree the second mortgagee was directed to pay the first mortgagee, yet it was clear that such second mortgagee was not meant by the words in the 42nd section of the

above act, by "the person by whom the same was payable." The mortgagor was, upon the true construction of the statute, the person by whom the money was payable.

Mr. Bacon and Mr. W. W. Karslake, for the defendants J. S. Cutliffe and Elizabeth his wife. The plaintiff was not entitled to an account further back than six years from the date of the filing of the bill. A mortgage was a charge within the former part of section 42. of the above act-Du Vigier v. Lee (1), and a foreclosure suit was one of the suits indicated therein -Dearman v. Wyche (2). In order to bind the second mortgagee there must be an acknowledgment by him; and no acknowledgment by the mortgagor alone would bind the second mortgagee so as to entitle the transferee to an account for more than six years' arrears of interest prior to the filing of the bill-Hopkinson v. Rolt (3).

They also referred to

Elvy v. Norwood, 5 De Gex & Sm. 240; s. c. 21 Law J. Rep. (N.S.) Chanc. 716.

Shaw v. Johnson, 1 Drew. & Sm. 412; s. c. 30 Law J. Rep. (N.s.) Chanc. 646.

Hunter v. Nockolds, 1 M. & G. 640; s. c. 1 Hall & Tw. 644; 19 Law J. Rep. (N.S.) Chanc. 177; reversing 18 Law J. Rep. (N.S.) Chanc. 407. Henry v. Smith, 2 Dr. & W. 381. Harrison v. Duignan, Ibid. 295. Hughes v. Kelly, 3 Ibid. 482. Hodges v. the Croydon Canal Company, 3 Beav. 86.

Lewis v. Duncombe, 29 Ibid. 175; s. c. 30 Law J. Rep. (N.S.) Chanc. 732.

Round v. Bell, 31 Law J. Rep. (N.S.)

Chanc. 127.

Mr. Langworthy, for the defendants, Maria Lane, J. J. Maclaren and Anna Dick, in the same interest.-Although the word "charge" would not necessarily include a mortgage, yet, in order to give effect to the proviso in the 42nd section,

(1) 2 Hare, 326; s. c. 12 Law J. Rep. (N.S.) Chanc. 345.

(2) 9 Sim. 570; s. c. 9 Law J. Rep. (N.S.) Chanc. 76.

(3) 9 H.L. Cas. 514.

it must be taken that the former part of that section included mortgages. The effect of the acknowledgment in the deed of transfer of the 11th of November 1856 was only to establish a liability against the mortgagor for arrears beyond six years from the time of filing the bill, and did not bind the land to the prejudice of the subsequent mortgagees. He referred to Sinclair v. Jackson (4).

Mr. Jackson appeared for another defendant.

[STUART, V.C. referred to Grenfell v. Girdlestone (5).]

STUART, V.C. (April 30.)—The question in this case is, whether the plaintiff is entitled to an account of interest upon his mortgage money for more than six years prior to the filing of his bill. It was argued, for the defendants, that by the mere force of the word "charge" in the 42nd section of the statute 3 & 4 Will. 4. c. 27, mortgages are included. In support of this view, the cases of Dearman v. Wyche and Du Vigier v. Lee were quoted. During the argument I endeavoured to point out the fallacy of the notion that a charge properly so called and a mortgage are synonymous. In Lord St. Leonards' most recent work (6) that great lawyer has discussed these two cases, and has very much shaken their authority. But he has also, by his elaborate examination of the statute, made it very clear (p. 139, sect. 51) that although the word "charge" does not by its own force include mortgages (as was argued in this case), yet that, as the 40th clause expressly mentions mortgages, they must be included in the 42nd, from the necessity of construing the two clauses by reference to each other, and as interpreting each other. It was well observed by Mr. Langworthy during the argument, that the express mention of mortgages in the proviso in the latter portion of the 42nd clause makes it necessary to construe the whole clause so as to include them in the former part.. It is, therefore, from the peremptory language of the act of parlia

ment, as ascertained upon a critical examination of its clauses, so as to produce a harmonious construction, and not by treating the word "charge" as necessarily including mortgages, nor on the discredited authority of the two cases referred to, that it is necessary to hold that mortgages are included in the first part of the 42nd clause of the act. It was contended, for the plaintiff, that by the deed of the 11th of November 1856, there is an acknowledgment of the arrears due at that time which entitles him to an account of the whole arrears from the date of his mortgage. This seems to be sufficiently established. An attempt was made to shew that there was not a sufficient acknowledgment by the person by whom the interest was payable. This argument was grounded on the proposition that the second mortgagee, and not the mortgagor, was the person by whom the interest was payable under the usual form of the decree, as the decree would direct payment by the second mortgagee to the first. It is hardly necessary to say that there is no solid ground for such an argument. The terms of the contract, and not the decree, are what must govern the construction of the act; and by the contract the mortgagor is the person by whom the interest is primarily payable, and by law compellable to pay it. There is, therefore, a sufficient acknowledg ment to entitle the plaintiff to an account of the whole arrears of interest.

From this decision (Jan. 14), the defendants, Cutliffe and wife, appealed. Mr. Bacon and Mr. W. W. Karslake, for the appellants, cited

Lord St. John v. Boughton, 9 Sim. 219;

s. c. 7 Law J. Rep. (N.S.) Chanc. 208. Putnam v. Bates, 3 Russ. 188. Fordham v. Wallis, 10 Hare, 217; s. c. 22 Law J. Rep. (N.S.) Chanc. 548. Roddam v. Morley, 1 De Gex & Jo. 1; s. c. 26 Law J. Rep. (N.S.) Chanc. 438; 25 Ibid. 329; 2 Kay & J. 336. Francis v. Grover, 5 Hare, 39; s. c. 15 Law J. Rep. (N.s.) Chanc. 99. Sugden's New Statutes, 119, 2nd edit. Mr. Malins and Mr. Robinson, for the respondent, referred to

Hopkinson v. Rolt, ubi suprà.

Sugden's New Statutes, 132, 2nd edit. Mr. Bacon replied.