serted by the Clerk, and, therefore, do not make it a Bill for Relief. 1833 ANGELL In every Case, it ought to appear, most distinctly, WESTCOMBE. whether the Bill is for Relief or for Discovery only; for, 8 Beaw. 430. if that matter is left in doubt, the Defendant may put in his Answer, and then the Plaintiff may amend his Bill by praying specific Relief. The general opinion of the Profession was against the decision in Brandon v. Sands. I will, however, allow the Plaintiff in this Case to amend his Bill, by striking out the Prayer for General Relief. EXTON v. SCOTT. 1833: 22 February. Escrow. Debtor and L. HAMPSON, a Banker and Solicitor, was, under Deed. his Marriage Settlement dated in 1786, Tenant for Life of certain Estates in Bedfordshire, with remainder to his Daughters in Fee; and the Trustees of the Settle- A. having rement were empowered, with the consent of the Tenant ceived Monies belonging to B. for Life, to sell the Estates and lay out the Purchase- privately, and money in the purchase of other Estates to be settled to without any communication the same Uses; and, in the meantime, the Purchase- with B., preparmoney was to be invested in Government or Real Secu- ed and executed rities. In 1809, 1810, & 1812, Edward Hampson, the brother of L. Hampson, and the surviving Trustee of the a Mortgage to him for the amount. A. retained the Deed in his custody for 12 Years, and then died insolvent. After his death, the Deed was discovered in a Chest containing his Titledeeds. Held that the Deed was not an Escrow, there being no evidence to show that it was executed conditionally, but that it took effect from its execution, and was good against A.'s Creditors. Palmer ~ Newell 20 Bear. 360. Lloyd & Attwood 3 bely. VJ. 655. عد ہوا Cory 1 D.§.V S. 166. Crackwall 1833. ΕΧΤΟΝ V. SCOTT. Settlement, at the request of L. Hampson, sold certain parts of the settled Estates, and the Purchase-monies were paid into L. Hampson's Bank, to an Account intituled, "Messrs. L. & E. Hampson, Trust Money." The Monies so paid in, were afterwards invested in the purchase of Navy Five per Cents. in the name of L. Hampson alone, and, between January and August in 1812, he sold out part of the Stock, and in December 1814, he sold out the remainder, amounting to 5,000 l. In July 1811 and December 1812, L. Hampson's two Daughters married, and Sir John Filmer and Richard Gilpin were the Trustees of their Settlements. By an Indenture, dated the 18th of December 1812, and expressed to be made between L. Hampson of the one part, and Sir John Filmer and Richard Gilpin (who were described as Trustees named in the Settlements made previous to and upon the Marriages of the two Daughters of L. Hampson, by Frances, his late Wife, deceased,) of the other part; after reciting that the Sum of 5,000 7., the net money arising from the sale of the part of the settled Estates in the County of Bedford comprised in the Settlement made upon the Marriage of L. Hampson, with Frances, his late Wife, was paid to and received by Hampson, and was then in his hands, as he thereby admitted and acknowledged, and that Hampson, previous to the Marriages of his Daughters, undertook and agreed to execute a Mortgage, to Filmer and Gilpin, of the Messuages, Lands and Hereditaments thereinafter mentioned and described, for securing the payment to them of the said Sum of 5,000l. upon the Trusts and for the purposes of the Settlements made previous to the Marriages of his said Daughters: It was witnessed that, in consideration of the Premises, and for better securing the repayment of the 5,000l. to Filmer and Gilpin upon the Trusts and for the Purposes aforesaid, Hampson demised to them, all his Messuages, Lands, Hereditaments and Real Estates whatsoever, situate in the Parishes of Luton and Caddington, in the County of Bedford, then in the possession or occupation of him and his Tenants, for the Term of 500 years, subject to redemption on payment by Hampson, to Filmer and Gilpin, of the Sum of 5,000 l., with lawful Interest for the same from thenceforth, upon the Trusts and for the Purposes aforesaid; and Hampson covenanted with Filmer and Gilpin, to pay to them the 5,000 7. and Interest accordingly: and, by a Bond of even date, he became bound to them in 10,000 l., conditioned for payment of the 5,000l. with lawful Interest, on the 18th of July then next. In March 1824 Hampson died insolvent and intestate; and a Suit was shortly afterwards instituted, by two of his Creditors on behalf of themselves and his other Creditors, to have his Estate applied in Payment of his Debts. The usual Decree having been made, Sir John Filmer and Richard Gilpin, claimed, before the Master, to be paid the 5,000 7. secured by the Bond and Mortgage, as a Debt due from the Testator at his decease. Sir J. Filmer made an Affidavit in support of the Claim, stating that Hampson was, at his death, indebted to him and Gilpin in 5,000 l., being the net Money arising from the Sale of part of the Estates comprised in Hampson's Marriage Settlement, which was paid to and received by him; in consideration whereof he agreed to VOL. VI. D 1833. EXTON 0. SCOTT. 1833. ΕΧΤΟΝ v. SCOTT. execute the Bond and Mortgage, for securing the repayment thereof to Filmer and Gilpin as Trustees of the Settlements made on the Marriages of his Daughters, upon whom the Estates would have descended if they had not been sold, and that he executed the Bond and Mortgage in pursuance of that Agreement; and that the 5,000 l., with interest from Hampson's death, remained due from his Estate. It appeared, by the Evidence in opposition to the Claim, that the Bond and Mortgage were privately prepared by Hampson himself, and were in his own handwriting; that they were executed by him in his private Office, and when no one was present except himself and the Clerk who attested his execution; that, a few days after his death, they were found in an Iron Chest, in his Bed-room, containing the Title-deeds relating to the Mortgaged Premises and other Estates, which were tied up in bundles separate from the Bond and Mortgagedeed; and that, before Hampson's death, the existence of those Instruments was not known to the Persons to whom they were executed, or to any of the Persons interested under the same: and one of the Witnesses, who had been a Partner with Hampson in his Banking business, deposed that, on the 18th of December 1812, Hampson was indebted to certain Persons in Sums amounting to 3,600 7., which still remained unpaid, and that, on the same day, Hampson, as the Witness believed, was insolvent. The Master having reported that the Bond and Mortgage were, in his opinion, void against Hampson's Creditors, Filmer and Gilpin excepted to the Report. Sir E. Sugden and Mr. Thompson, in support of the At the time when L. Hampson executed the Bond and Mortgage-deed, he had received the whole of the Trust-money; and he had in his hands 5,000 l. part of it. By getting the Fund into his possession, he constituted himself a Trustee of it. It was ear-marked as a Trust Fund: no Creditor could have claimed it. The moment that he assumed the character of a Trustee, this Court would give legal validity to all acts done by him, which he might have been compelled to do. By the Settlement of 1786, the Monies, until they were reinvested in the purchase of Lands, were to be laid out on Government or Real Securities; and Hampson having the Money in his hands, and before he dealt with it gave a real Security accordingly. His assets were increased by the amount of the Money for which he gave the Security; and his Creditors have had the full benefit of it. As there was a Legal and Equitable obligation to do the act, and a sufficient consideration, it cannot be said that the Deed was voluntary: therefore the evidence that Hampson, when he made the Mortgage, owed Debts to the amount of 3,000 l. or 4,000 l., which are still unpaid, is of no importance. Sir John Filmer, in his Affidavit, states that Hampson, in consideration of his being indebted to him and Gilpin in respect of the 5,000l., agreed to execute the Bond and Mortgage to them; and that he executed the Bond and Mortgage in pursuance of such Agreement; and the Deed recites that Hampson had so agreed. The mere circumstance that he retained the Deed in his custody, 1833. EXTON v. SCOTT. |