period would be doubled); and have also received all the rents to decree the usual accounts, would be to give the party who is wrong, all the advantage of the delay occasioned by himself; it would be to reward the party who has done wrong and to give him a double benefit, and to work injustice to the party who has been uniformly correct. The cause is novel, there is no prece dent. It may be said, that Mr. Todd might have applied to have the £5,333 6s. 8d., or the rents and profits brought into court and laid out, but he has not done so, and the vendors have reaped the benefit of his not doing so.-Under these circumstances, the vendors must account, not only for the rents and profits of the estate from October, 1802, but also for interest, after the rate of 41. per cent. upon one-third of the rents and profits.

As to the costs. The original bill must be dismissed with costs; because the vendors, apprised of the objection, instituted an improper suit. As to the second suit. The vendors took no steps to amend the original bill, and to frame it properly to obviate the objection to the title. Mr. Todd had therefore no means of obtaining a specific performance of the agreement, but by the institution of the second suit; the vendors resisted and failed; Mr. Todd succeeded, and a specific performance was decreed. There was no inconsistency on the part of Mr. Todd. The will of Mr. Bur ton rendered it necessary that the accounts should be taken. All the parties to the second suit were interested in the accounts. The vendors must be at the expense of clearing the title, by taking the accounts; and, therefore, Mr. Todd is entitled also to the costs of the second suit.

No. XXI.

Rea v. Williams, Exch. (ƒ).

The plaintiff Rea, and one Pritchard, purchased jointly a lease made by the Duke of Beaufort for the life of another person, and they jointly took the profits of it for some time; but afterwards they conveyed the estate to the defendant Williams, in consideration of 3007. as was expressed in the conveyance, though no part

of the money was ever paid, and Williams acknowledged by his answer, that he was a mere trustee for the parties; but no declaration of trust was ever executed, nor did it any way appear with what view the estate was vested in the defendant, any further than it was believed it was done to screen it from execution, they being both of them much indebted. Afterwards Pritchard died intestate, and the defendant, Williams, took out administration to him, but there was not assets enough to pay all his debts. This cause came on to a hearing on the bill and answer, and the ques tion was, whether the trusts of the estate belonged to Rea the survivor, as the whole estate indisputably would, if the legal estate had continued in the two purchasers: to prove the trust would survive, were cited 1 Vern. 217, Eq. Cas. Abr. 291, 2 Vern. 556, 683.

Mr. Wilbraham, to shew this trust did not survive, took a distinction between 2 Vern. 556, and the present case; for there, he said, was an express limitation of the trust to the two daughters, so they might take jointly; but this is a resulting trust only, and no express limitation; and equity, which discourages joint tenantcies, may construe that to be a tenantcy in common; Salk. 158. If a joint tenant for years mortgages his part of the term, this is a severance of the joint tenantcy, 2 Vern. 683.

Reynolds, Chief Baron.-I think the joint tenantcy of the trust in this case was not severed: every one who has an estate has two rights in him, a legal estate and an equitable interest; nothing passed by the conveyance to the defendant but the legal estate, and the equitable interest resided in the two purchasers, and remained as it originally was, the consequence of which is, that it must go to the plaintiff by survivorship. Carter, Thompson, and Fortescue, were of the same opinion; and Fortescue said, he saw no difference between an express and an implied trust.

No. XXII.

Lechmere v. Lechmere (g), Ch. E. T. 8 Geo. II.

This case was elaborately argued upon the appeal. The argument lasted four days. Upon the first question Lord Talbot deli

(g) Vide supra, p. 546, 547, 548.

No. XXIII.

Abstract of the Special Verdict, in Fairfield v. Birch, (h).

Edmond Kelly, being seised in fee in 1747, made a settlement before his intended marriage, in consideration of the wife's portion, as to part to trustees in fee, in trust to sell and pay off incumbrances, which amounted to 40007. As to the residue, to himself for life, remainder to trustees in the usual way, to preserve remainders; remainder to the use, that the wife might receive a jointure rent-charge, in bar of dower; subject thereto, to the first and other sons of the marriage successively in tail male; remainder to the first and other sons of Edmond Kelly by any other wife successively, in tail male; remainder to two brothers of the settlor and their issue male, in strict settlement; remainder to Ignatius Kelly the uncle of the settlor for life; remainder (after a limitation to trustees to preserve) to his first and other sons successively, in tail male, with the reversion to the settlor's'right heirs. Power to the settlor if he survived his wife, having issue by her a son, to jointure any after-taken wife, to the extent of 50%. a year; and if no issue male, of 100l. a year; and if no issue, 1507. a year, and 2,000l. for younger children's portions. Covenants for title and further assurance. Power to the settlor to charge 5007. but not to Proviso, that if the settlor and his brother should die without issue, the estates should stand charged with 2,000l. for the sisters of the settlor, or their issue.

affect the jointure.

The lands vested in the trustees in fee, were sold to Robert Birch, under a decree for the payment of the incumbrances, which were accordingly paid out of the purchase-money.

Robert Birch had notice of the settlement of 1747, in the year 1755.

Ann Kelly died in the life-time of Edmond, previous to the 2d May, 1758, without having had issue.

Edmond, on the 2d of May, 1758, on his marriage with Harriet Hincks, in consideration of a portion of 2,500l., settled the estates to himself for life, remainder to trustees to preserve, re.

mainder to the intent that the intended wife might receive a jointure rent-charge of 3007. per annum, if there should be issue, and subject thereto, to the first and other sons of the marriage successively, in tail male; remainder to Edmond the settlor in fee.

15th July, 1761, Edmond, for a valuable consideration, conveyed to Robert Birch the settled estates in fee. Part of the consideration the jury found to be the debts for which the estates under the decree had been sold.

The brothers of Edmond died in his life-time unmarried, and without issue.

The lessor of the plaintiff, was the grandson of Ignatius, the uncle.

Edmond, the settlor, died in 1768, without ever having had issue.

The lessor of the plaintiff claimed under her father, Robert Birch's will, and was entitled to a portion under a term of years, created by his marriage settlement, which was made in consideration of his intended wife's portion.

No. XXIV.

Sloane v. Cadogan.

Rolls, December, 1808 (i).

Under a settlement made previously to the marriage of Earl Cadogan and Frances, his wife, the sum of £20,000 was assigned to trustees upon certain trusts, under which, William Bromley Cadogan, one of the children of the marriage, became entitled, subject to his father Lord Cadogan's life interest therein, to one-fourth share of the £20,000, which sum was afterwards invested in the 3 per cent. reduced annuities, in the trustees names. By an indenture, bearing date the 26th May, 1788, William Bromley Cadogan assigned to William Rose, William Bulkley, Duncan Stewart, and Alexander Graham, their executors, administrators, and assigns, all such part, share, or proportion, as he

the said William Bromley Cadogan was entited to as aforesaid, expectant on the decease of the Earl, his father, of and in the said sum of 20,000, and all the interest which, after the decease of the Earl, should become due in respect of such share.To hold the same immediately after the death of the said Earl, and subject to his life estate or interest therein, in the mean time, unto the said William Rose, William Bulkley, Duncan Stewart, and Alexander Graham, their executors, administrators, and assigns. Upon trust, immediately after the decease of Lord Cadogan, by and out of the first monies which should be received by, or come to their hands, by virtue of the same indenture, to pay £1000 to such person or persons, and for such uses, intents, and purposes, as he the said William Bromley Cadogan should, by any writing or writings under his hand, direct or appoint; and, in default of such direction or appointment, then to pay the said sum of £1000 unto the said William Bromley Cadogan, or his assigns, to and for his and their own use and benefit. And, upon trust, to place out or invest the residue or surplus of the said monies and premises, as soon as might be, after the same should be received by them the said trustees, in such stocks, funds, or securities as therein mentioned; and to stand possessed of all the said residue of the said trust monies which should remain after payment of the said sum of £1000, and of the said stocks, funds, or securities; upon trust to pay unto, or authorize the said William Bromley Cadogan and his assigns, to receive the interest, dividends, and annual produce, for his life; and after his decease, and, in case his wife, the plaintiff, should be then living, upon trust to pay unto, or authorize her and her assigns to receive the interest, dividends, and annual produce thereof for her life, for her and their own use and benefit, the same to be in lieu of dower; and immediately after the decease of the survivor of the said William Bromley Cadogan and plaintiff, upon trust, to pay, assign, and transfer the said residuum, and the stocks, funds, or securities for the same, in such manner for the benefit of the issue of the marriage between them the said William Bromley Cadogan and plaintiff as therein mentioned; and for default of such issue,' upon trust, to pay, assign, and transfer the same to such person or persons, and upon such trusts, for such uses, intents, and purposes, and by, with, under, and subject to such powers, provisoes, charges, conditions, and limitations over, as he the said William Bromley Cadogan, at any