part, in consideration of this sum of 2001., and of the said demise of the said lands called Palmer's Fields, covenanted that the Fellow and three scholars should enjoy the like benefits, privileges and commodities as the other Fellows and scholars of the College; and that they would deliver to John Scott a counterpart of this indenture.

The information was filed against the Master and Fellows of Pembroke Hall and the Warden and Governors of St. Bees School; and it stated that the rent of the lands called Palmer's Fields had increased to the annual sum of 500l., whilst the other lands, retained by the Warden and Governors of the School, were now only of the annual amount of 1247. 19s.; and it charged that the original lease to the Gleydells, and also the lease to the Master and Fellows of the College, were both fraudulent, and that, at the time of granting the same, the lands called Palmer's Fields were of much greater value than 241. a year; and that, notwithstanding the engagement, on the part of the Master and Fellows of Pembroke, Hall, that the scholars of the Archbishop's foundation should have the like benefits, privileges and commodities as any of the Fellows and scholars of the College, the said Fellow and scholars of the Archbishop's foundation had enjoyed only certain limited benefits, much inferior to the other Fellows and scholars.

It also stated that, in 1612, a bill was filed in this Court by John Scott against the Warden and Governors of St. Bees School, touching these leases, and that an order was made in that cause, on the 21st of November, 1612, as follows: "Whereas, upon the hearing of this cause the 22nd of October last, it appeared that one Reginald Gleydell hath gotten a lease of some of the School lands at an under-rent; and, as it was then alleged, of the Master and Fellows of Pembroke Hall, in Cambridge, for 1,000 years, in reversion of the said Gleydell's lease: it is, therefore, ordered, by the Lord Chancellor, that a subpoena be awarded against the said Gleydell to bring his said lease into Court, to be viewed and considered of as shall be meet. And his Lordship will also be pleased to write his honourable letters unto the said Master and Fellows of Pembroke Hall, to bring their said lease into this Court, to be also seen and *perused as shall be fit; and that such order may be taken thereupon, touching both the said leases, as shall be meet."

No further proceedings appeared to have been taken in that cause touching these leases.

The information prayed that the lease to the Master and Fellows

A.-G.

v.

PEMBROKE

HALL.

[ *445 ]

[ *446 ]

A.-G.

v.

PEMBROKE

HALL.

[ 447 ]

of Pembroke Hall might be set aside and cancelled: or, if the Court should be of opinion that it ought not to be cancelled, then that it might be declared that the Master and Fellows held it only as a security for the payment to them of the annual sum of 24l., or such further sum as they might be entitled to, in respect of the increased value of the estate, in proportion with the other objects of the Charity; and that they were trustees of the surplus for the benefit of the Charity: and that the Fellows and scholars of the Archbishop's foundation might be declared entitled to the like benefits, and put upon an equality, in all respects, with the other Fellows and scholars of the College.

The Master and Fellows of the College, by their answer, denied the fraud, and stated that the Fellows and scholars on the St. Bees foundation had always enjoyed the same benefits, and been on the same footing as the other Fellows and scholars; and that, so far from the other Fellows of the College having been benefited by the Archbishop's foundation, they had, in fact, been injured by it; inasmuch as the present St. Bees Fellow, during the 26 years he had held the Fellowship, had been paid 9381. more than was produced by the rents, profits and fines received for Palmer's Fields. The information now came on to be heard.

The Solicitor-General, and Mr. Pemberton, for the informant.
Mr. Horne, and Mr. Simpkinson, for the defendants.

THE VICE-CHANCELLOR:

It appears that, in making up the 50l. a year in land according to the Archbishop's appointment, the lands called Palmer's Fields were computed, by his executors, at the rent of 241. a year only, and there is, therefore, no reason to suppose that the lease which was granted a few years afterwards to the Gleydells at the same rent of 241. a year, was a fraudulent lease. Still less can it be supposed that the Warden and Governors of St. Bees School would fraudulently grant to the College an undue proportion of the revenues of the Charity, to the prejudice of their own establishment. No motive can be assigned for such conduct: and it is plain, by the recitals in the lease to the College, to which the executor of the Archbishop was a party, that the purpose of all parties was to give to the College that proportion of benefit in land which the Archbishop had given in money, and which the Archbishop would himself have given in land, if the College had, before

A.-G. c.

HALL.

[ 448 ]

his death, been capable of holding the land in mortmain. It has happened that the land so allotted, by the Warden and Governors PEMBROKE of the School, to the College has, from accidental circumstances, increased in annual value in a much greater proportion than the land which was reserved by the School: and the principal purpose of the present information is, to undo this arrangement and to make a new and proportionable division between the several objects of the Charity. I cannot think it the office of a court of equity, at the distance of more than two centuries, to undo an arrangement which was perfectly fair at the time between the contracting parties, and was sanctioned with the full approbation of the executor of the founder, and has become unequal only from accidents arising out of the course of time. The information must, therefore, in this respect, be dismissed. As to the other point: the Fellow and three scholars of the Archbishop's foundation are, by the indenture of the 4th of James, plainly entitled to the like benefits, privileges and commodities with the other Fellows and scholars of the College; and the Court will make a declaration accordingly.

An appeal was brought from that part of the VICE-CHANCELLOR'S decree which declared the defendants to be entitled to the surplus rents and profits of Palmer's Fields for their own use.

The Solicitor-General, Mr. Pemberton, and Mr. W. Brougham for the appellants.

Mr. Horne and Mr. Simpkinson for the College.

The LORD CHANCELLOR affirmed the judgment of his Honour.

PUTNAM v. BATES (1).
(3 Russ. 188-191.)

years

An admission of a debt by the executrix of a trader, within six before the filing of a creditor's bill, will not take the debt out of the Statute of Limitations, so as to enable the creditor, under the 47 Geo. III. c. 74 (2), to claim payment out of the real estate in the hands of a devisee.

THE bill was filed by a simple contract creditor of a testator, who, at the time of his death, was a trader within the meaning of the bankrupt laws, for the administration of his assets, and the payment of his debts out of his real, as well as his personal, (1) Astbury v. Astbury [1898] 2 Ch. (2) Rep. 11 Geo. IV. & 1 Will. IV. 111, 118, 67 L. J. Ch. 471, 78 L. T. c. 47, s. 1. 494, per STIRLING, J.

1829. Nov. 9, 12.

1830. June 1.

[ 1 Russ. & My. 751]

1826. Feb. 18.

Rolls Court.

Lord GIFFORD, M.R.

[3 Russ. 188]

PUTNAM

v.

estate. The defendants were Sarah Bates, the executrix and BATES. devisee of a moiety of the real estate of which the testator died seised, and Bishenden and his wife, who were the devisees of the other moiety.

[ *189 ]

[190]

Bishenden and his wife did not admit the plaintiff's demand; and they insisted that the debt, even if it ever had been due, was now barred by the Statute of Limitations.

Sarah Bates, the executrix, did not insist on the benefit of the statute.

Proof was given of payment of part of the debt by the executrix within six years, but there was no evidence of any admission of the debt by Bishenden and his wife.

The question was, whether the plaintiff was entitled to any decree against Bishenden and his wife, and against so much of the real estate as they were interested in.

Mr. Barber, for the plaintiff :

The 47 Geo. III. c. 74 (1), provides that the real estate, of *which a trader dies seised, "shall be assets to be administered in courts. of equity for the payment of all his just debts." This debt, being proved against the executrix, is a just debt now due from the testator; and, therefore, the Court is bound by the words of the Act to apply the proceeds of the lands in the discharge of it. When once the demand is established against the primary fund, the heir or devisee cannot be heard to say, that, so far as regards the auxiliary fund, it shall be treated as a nonentity.

THE MASTER OF THE ROLLS:

The argument is, that the admission of the executrix has taken the case out of the Statute of Limitations; and it seems to be admitted, that, but for this admission, the statute would have applied. Now, how can the act of the executrix be evidence against the devisee or heir? Whether does the plaintiff contend that the Statute of Limitations does not apply to a demand made under the 47 Geo. III. c. 74, or that the circumstances of this case take it out of the statute?

Mr. Barber :

The Statute of Limitations applies thus far-that the creditor is bound to make out that there is a just debt owing to him by the deceased trader, i.e. a debt, which, before the 47 Geo. III., he

(1) Rep. 11 Geo. IV. & 1 Will. IV. c. 47, s. 1.

would have been entitled to have had paid out of the personal estate, so far as it would extend; and if the debt were barred by the Statute of Limitations, so that he could not recover payment from the executor, he could not go against the heir or devisee. But the object of the 47 Geo. III., was, to make the lands of traders liable to every demand which could be enforced against the personal assets; and when once the debt is established against the primary fund, and the application of the Statute of Limitations, as between the creditor and that fund, is excluded, the persons interested in the auxiliary fund cannot set up such a bar to the claim of the creditor.

Mr. Horne and Mr. Parker, for Bishenden and his wife : The plaintiff, asking payment of his debt out of our fund, must prove his debt against us; and as we insist on the benefit of the statute, he must prove against us an admission of the debt within six years before the filing of the bill. The executrix cannot by her admission bind the real estate; and no demand can be considered as a just debt, till it is proved against those for whom payment is sought: Tullock v. Dunn (1), Atkins v. Tredgold (2).

Mr. Roupell, for Sarah Bates.

THE MASTER OF THE ROLLS:

The plaintiff admits that he must prove the debt *against the executrix, and that he must also prove an admission within six years. He admits, further, that, for the purpose of affecting the real estate, he must prove the debt against the heir or devisee as well as against the executrix: if, in a proceeding at law, he were to recover on a promise made by the executrix, he can scarcely contend that such a judgment would be evidence against the heir or devisee. But as the original existence of the debt must be proved against the devisee, is it not equally necessary to prove against him an admission of the debt within six years? If the admission by the executrix within six years be sufficient to take the case out of the Statute of Limitations as against the heir or devisee, why should not her admission be equally evidence against him as to the original existence of the debt? If it be necessary to prove the debt against the devisee, it must be equally necessary to prove some admission within six years, that can affect him.

The decree can be only against Sarah Bates.

(1) 27 R. R. 765 (1 Ry. & M. 416).

(2) 26 R. R. 254 (2 B. & C. 23).

PUTNAM

V.

BATES.

[ *191 ]