The only question was, whether under this devise, the real estate should exonerate the personal estate.

Mr. Richards contended these words were not sufficient. That in order to be so, there must be a destination as to the estate to be sold for the mere purpose of the payment of debts. Here was only a direction in transitu, and the words do not necessarily imply that the personalty was to be exonerated. The trustees are not under this devise bound to sell the estate immediately, yet the debts must be immediately paid : that must be out of the personal estate. The residue being devised, may be taken as a specific legacy, and yet may be liable to debts, French v. Chichester, 2 Vern. 568. Express words are necessary to exempt the personal estate, 3 Wms. 325. Samwell v. Wake, ante, vol 1, 144. Duke of Ancaster v. Mayer, Ibid. 454.

Master of the Rolls [Kenyon]. I have no doubt about this case. The general rules are very clear that the personal estate is the fund first liable, and that the testator cannot exonerate it without substituting another fund. But there is no magic in words; no peculiar form of expression is necessary in order to exonerate the personal estate. If the intention of the testator be evident to exonerate the personalty, it must be exonerated.

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Here, the intention is beyond all doubt (I lay no great stress, but I must lay some upon the words), "when sold, the money to be applied to the payment of mortgages, and all other debts." If one was to ask the testator what he meant, he would say, to pay all the debts. This is a stronger case than that of Mayer and the Duke of Ancaster. The testator has directed the residue to be added to the personal estate ("now this is incompatible with the idea that the personal estate should be applied in the first instance." Vide 1 Cox, 246); but, according to the construction contended for, that would be gone. I must declare, that the money arising from the sale is to be applied in payment of debts, in exoneration of the personal estate. (Reg. Lib. 1785, B. fol. 361.)

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(1) See Mr. Cox's report of this case, in the first vol. of his Reports, 245. It appears from Reg. Lib. and from thence, that as to the residue of the purchase-money to arise from such sale, he gave the same in moieties; one of which was for his daughter Mary, her executors, administrators, and assigns: the other was on certain contingencies for the children of his daughter Ann. And in case they all should die under 24, he directed that such moiety should sink into, and be deemed as part of the residue of his personal estate, and be paid and applied as his personal estate was thereinafter given and disposed of; and he directed that the rents till such sale should be applied to the use of his daughter Ann, her executors, administrators, and assigns. Reg. Lib. This last clause is not in Mr. Cox's report, but in connection with the gift of the other moiety to Mary, "her executors," &c., it seems by no means immaterial to shew the intention as to a total conversion of the real estate in question into personalty.

Upon the cases of exoneration, &c., see Samwell v. Wake, and D. of Ancaster v. Mayer, 1 Bro. C. C. 144 & 454, &c., with the Editor's notes and references and see particularly Stephenson v. Heathcote, 1 Eden's Ca. Ld. North, 38, &c. Bootle v. Blundell, 1 Meriv. 193, &c., 236, 237. Gittins v. Steele, 1 Swanston, 24, &c.

[61] GEAST against BARKER. [1786.]

[S. C. not S. P. 2 Bro. C. C. 1.]—Master of the Rolls for Lord Chancellor.-Bill for rent of a mine retained for a year to suffer plaintiff to try an issue as to the quantity of coal which by the custom of the country constituted a stack, the reservation being 1s. per stack.(1) (No entry in Reg. Lib. on this occasion; but the bill was afterwards dismissed. Reg. Lib. 1787, A. fol. 352 b.)

The bill was filed for a discovery of the quantity of coal and coke, sold from a mine, let by plaintiff to the defendant. The bill stated the reservation to be one shilling for every stack of coal sold, one shilling for every such quantity of coke as should sell for as much money as a stack of coal should sell for, and one shilling for so much coal (of an inferior species) as should sell for the same sum as a stack of coal should sell for. The bill further prayed an issue, to try what quantity a stack should contain, suggesting that a stack (by the custom of the country) should not be more than seventy-two cubic

feet. The defendant, by his answer, insisted, a stack ought to contain eighty-six cubic feet.

The question was, whether the bill should be dismissed in the first instance, or retained for a year, with leave to try an issue.

Mr. Price and Mr. Scott (for the defendant), pressed that the bill should be dismissed, the remedy being solely at law. That, had the bill been demurred to, the demurrer must have been allowed; for that at law they would have only to ascertain the size of the stack, and to apply the discovery of the quantity sold, which they had obtained from the answer. It was to be presumed the answer contained this discovery; if it did not, the plaintiff might have excepted to it on that account.

Mr. Attorney General [Arden] and Mr. Lloyd contended. The bill ought to be retained that they could not prove the quantity sold, a great deal of it not having been stacked; so that the proportion could not be ascertained.

The Master of the Rolls [Kenyon] said. If it was now necessary either to decree an account, or to dismiss the bill, he would do the latter, as he was clear the remedy was at law but as there was a middle way, which would have no evil consequence, but deferring the defendant's receiving the costs for a year, and, as some difficulties might arise at law, he would retain the bill for a year, in order that the plaintiff might try the issue at law. (See note infra.)

(1) Sir W. Grant, M. R., in Harwood v. Oglander, 6 Ves. 225, referring to this case, says, "it is not a necessary consequence that the Court will not ultimately determine against the plaintiffs in equity, because the bill has been retained; and if I am not "mistaken, Lord Kenyon dismissed that bill." It appears from Reg. Lib. that it was dismissed, upon the plaintiff's own motion, and consent of the defendant, on the 15th April 1788. (Reg. Lib. 1787, A. fol. 352 b.)

[62] BROWNELL against BROWNELL.

Master of the Rolls for Lord Chancellor.-An account settled ten years before bill filed, although containing gross errors, shall not be opened; but the plaintiff at liberty to surcharge and falsify.

This was a bill to open an account settled ten years before the bill filed.

It was a devise by a father to his two sons, the younger of whom, the plaintiff, was a minor, and the elder, the defendant, adult, of four sloops in the Custom-house service. The share of the infant son was to be laid out for his benefit, until he should attain the age of twenty-three years, then to be paid him for his own use; and if he should die before that age, the whole was to go to the defendant. The defendant took possession of the property, and, upon the 22d October 1772, he met the plaintiff, and told him he had stated the account; and there was a balance due of thirty-nine pounds, which he paid to him: and the plaintiff, from confidence in his brother, accepted. Afterwards he found a pocket-book of his father's, in which the value of the ships, and the price at which they were let to government, were stated, and occasioned him to make further enquiry: in consequence of which, he found several gross false charges with respect to the price at which the ships sold, and the wages from government. The defendant had given credit for less than half he had received; he had charged, for repairs of one ship, double the sum for which he sold the ship in the course of the year, and other very gross errors; on which the plaintiff filed this bill.

Mr. Scott (for the plaintiff), stated this case, and contended it would not be enough to surcharge and falsify, but that the whole account must be opened. Here the elder brother was a trustee for the defendant; all the articles were grossly fallacious; the accounts were different in the different answers. No vouchers had been given up, and the account was settled in confidence. And although, where a fair and just account is settled with an infant, it shall not be opened; yet, where it is unfair, it shall be opened, 2 Atkyns, 119, even notwithstanding death has intervened.

Mr. Price and Mr. Mansfield (for the defendant), insisted the elder brother was not in this case a trustee for the younger; the settlement was at the end of two years after he became entitled [63] to the moiety. Only four articles in the account are attacked, and the plaintiff wants to have the whole unravelled. The plaintiff had the account sent to him before the payment of the balance; and there is no proof in the cause of the surprize charged in settling of it.

Master of the Rolls [Kenyon]. This case has not been over-rated, in saying the brother was a trustee for the plaintiff. It is to be wished, in settling such an account, that the vouchers should be forced upon a young man. If the application had been recent, I should think this a case for opening the account: but where there has been an acquiescence for eleven years the labouring oar is upon the party calling for the account. There are several items in this account objected to with great force. The £52, 10s. for sundries. As to this, if I were to let in the objection, I should throw innumerable difficulties in the defendant's way, as the charge consists of many articles. The £50 received at the Custom-house: upon this alone I should not send it to the Master. But there are other items of a different nature; £47 is charged as paid to the auctioneer, who swears to have received only £12, 6s. If this can be explained, it will be right to put it in the way of being so. So, of the sale of the ship Hollis, it is fit that should be enquired into. The matter is not sufficient to open the whole account, but it is sufficient to answer the calls of justice to let the plaintiff falsify the price of the Hollis, the sum paid to the auctioneer, and the Custom-house account. (Reg. Lib. 1785, A. fol. 632 b.) (Note: [" The plaintiff having falsified the account before the Master, to the amount of £200 and upwards (the whole being about £2000), the cause came on for further directions on the 24th of May 1787; when his Honor decreed the defendant to pay "the balance, with 4 per cent. interest and costs."-From Mr. Cox's MS. note. The Editor finds it agree accordingly with Reg. Lib. 1786, A. fol. 432 b.])

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COOPER against FORBES. Rolls, 17 May [1786].

Infant in ventre sa mere.

His Honor determined that a child, in ventre sa mere, shall not take under a bequest to the children of A. living at the death of the testator. He relied upon the cases of Ellison v. Airey, 1 Vesey, 111, and Pierson v. Garnet [2 Bro. C. C. 38]. (No Entry.) (It was, however, settled to the contrary in the important case of Clarke v. Blake, 2 Bro. C. C. 320. Quod vide.)

[64] MILBOURN against MILBOURN. Rolls [May 17, 1786].

[Vide S. C. 1 Cox, 247, and 15 Ves. 400, 403.]-Copyhold will not pass by a will without surrender; nor will a surrender be supplied for a wife by general words, where there are other estates to answer the description. (1)

Clayton Milbourn being seised of real estates, and possessed of leaseholds in Kent, Huntingdonshire and Cambridgeshire, and particularly of two copyholds in Huntingdonshire and Cambridgeshire, by will dated 11th May 1723 [after declaring he meant to dispose of all his estates, &c.], devised all his messuages, farms, lands, tenements, and hereditaments, with the appurtenances, in the counties of Huntingdonshire and Cambridgeshire, to his wife for life, and, after her decease, to his eldest son, Clayton Milbourn, in tail, remainder to his second son in tail, remainder to his wife in fee. The eldest son, who lived many years, never made any claim of the copyholds, which were not surrendered to the uses of the will.

[The question was, whether, as the testator had not surrendered his copyhold estates, they would pass under the general devise; and whether the court would supply the want of a surrender in favour of the wife. (See 1 Cox, 247, and 15 Ves. 400, 403.)]

The Master of the Rolls [Kenyon] held, that the copyholds, not being surrendered, did not pass. (2) [Bill dismissed with costs, R. L.] (Reg. Lib. 1785, B. fol. 296.)

(1) Vide S. P. Byas v. Byas, 2 Ves. 164, and Supplement to Vesey, sen., 315, 316. It is to be observed that a considerable alteration has been lately made in the law relative to copyholds by the stat. 55 Geo. 3, chap. 192, which dispenses with the necessity of a surrender in respect of all testators dying after the passing of that act, upon payment by the persons entitled or claiming, of all duties, fees, &c., that would have been due and payable in case a surrender had been made. It is also to be noticed, that it seems most advisable to surrender to the use of the will in every case where it can be done, notwithstanding the benefit of the act. See Scriven on Copyholds, 129. The act in question is inserted, ibid. p. 610.

(2) Mr. Cox states the judgment as follows:-" M. R. The general rule is, that

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wherever it is apparent that the party means to include copyhold premises in a devise in favour of creditors, or wife or children, the Court will supply a want of a surrender to the use of the will. The only question therefore is, whether the party here meant to com"prehend the copyhold premises, under the general terms he has made use of. In all cases (especially relating to real property), it is very fit to abide by the rules already laid down, which are properly called the land-marks of property, although I must admit "I think some of the cases have been carried too far. As to Drake v. Robinson, 1 Wms. 444, I cannot understand Lord Macclesfield's distinction between the sons and the * creditors." ("This is now fully explained," per Lord Eldon, C., in Church v. Mundy, 15 Ves. 400, and Judd v. Pratt, ibid. 390, &c.) "However, I am glad to find other cases which will guide me in this. In Ross v. Ross, 1 Eq. Ca. Ab. 124, it is settled, that where there are freehold lands to satisfy the words of the will, the copyhold will not pass. To the same effect is Haslewood v. Pope, 3 Wms. 322. Copyholds, not being in their nature objects of testamentary disposition, shall not be supposed within the intention * of the testator, unless he has shewn such intention by surrendering them to the use of his will, or in case the words of the will cannot be satisfied otherwise; and then, in favour * of creditors, wife, or children, the Court will become auxiliary to the imperfect disposition. I do not rest much on the particular wording of the will, although it certainly *appears to be drawn by a skilful person; and therefore the technical words made use of, which apply peculiarly to freehold lands, have some weight. However, I proceed * principally on the authorities decided by Lord Talbot (Harris v. Ingledew, 3 Wms. 96. "Haslewood v. Pope, 3 Wms. 322) and Sir Joseph Jekyll (both men of consummate knowledge); and, as there are in this case freehold lands to answer the words of the “devise, I think the defect of the surrender ought not to be supplied as to the copyhold."

Earl BATHURST against BURDEN. [1786.]

Master of the Rolls for Lord Chancellor.-Demurrer to bill for an injunction to restrain injuring fish-pond over-ruled. (1) [The Court also in this case restrained a tenant from building, so as to interrupt his landlord's prospect. Sed quære ?]

Bill that the defendants, lessees of the plaintiff, may be decreed to keep the sills [of fish-ponds] in repair, and be restrained, by injunction from obstructing them; and from erecting any further buildings, they having begun such as would interrupt the prospect from the plaintiff's house, and would be disagreeable objects. (2) This was a general demurrer for want of equity.

The bill goes

Mr. Mansfield and Mr. Lloyd in support of the demurrer. The lease amounts to a covenant to keep the sills, banks, &c., in repair. on to state, that the defendants have erected more buildings than Lord Bathurst expected they would; and there is no covenant in the lease that they shall not do so. This is not a bill to stay waste, but only brought upon an apprehension [65] of being injured; where the party will not stay till he is so, and then apply to a jury. The second part of the prayer is, that they may be restrained from obstructing the sills, to prevent the overflowing of the water. This is not the subject of an injunction. If any thing was about to be done which would occasion irreparable, or perhaps great, mischief, that could not be remedied, the Court might interpose; but here there is no mischief; but that the stewponds may be overflowed, and the banks hurt. The next part is to prevent their building. This is a prayer to prevent their improving their estates: there is no covenant in the lease not to build. In cases where there are covenants to expend all the dung upon the estate, or to cultivate in a particular manner, on a breach, the Lord Chancellor has not thought it a case for application here, but that it only was in damages. (Note: It is now, however, usual to restrain tenants from removing hay, straw, dung, &c., or acting contrary to their express covenants. See Kimpton v. Eve, 2 Ves. &. B. 349. Spurrier v. Pearkes, per Lord Eldon, C., 25 Jan. 1811, &c. &c. See also Pratt v. Brett, 2 Madd. Rep. 63.)

Master of the Rolls [Kenyon]. This court will not interpose where the matter is merely in damages; but here a nobleman, having a seat, has granted privileges to the defendants, which they are using in such a way, as interferes with his pleasureable enjoyment of his property. (But see note (2).) The Duke of Beaufort obtained an injunction against persons who were building near him, to prevent their building so high as to obstruct the light of his windows, in the house now Gloucester House. So, in Lord

Kilmorey v. Thackeray, Lord Kilmorey had granted lands on the river Dee, with covenant to keep the banks in repair, the court of Exchequer were of opinion it was a proper subject for an injunction, as the verdict of a jury would be an imperfect remedy. So, in a case where a tenant was plowing up a bowling-green. In this case a damage is expected to be done to the fish-ponds, which in many cases are very valuable. I think I should not stop this cause in the first step; I should have been desirous, if compelled to it, to have made a precedent; but am glad to be able to find that of Lord Kilmorey v. Thackeray. Demurrer over-ruled. (Reg. Lib. 1785, A. fol. 440 b.)

(1) Though an order was refused specifically to repair the banks of a canal, stopgates, &c., yet the Court framed an order so as to obtain the effect, by restraining the defendants impeding the plaintiff, by continuing to keep the canals, banks, or wears, out of repair, or diverting the water, &c. &c. &c. Lane v. Newdigate, 10 Ves. 192.

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(2) Notwithstanding what is said in this case, as to restraining the erection of buildings which interfere with a nobleman's, or any man's," pleasurable enjoyment of his property," such a jurisdiction to restrain a person from building on ground which belongs to him, whether by lease or otherwise, can never be maintained upon the mere foundation of interrupting another's prospect. Lord Hardwicke repeatedly refused such attempts in the strongest language, and Lord Eldon, C., has, as often, disclaimed such. an interference.

See in Morris v. Ld. Berkeley, and Attorney General v. Doughty, 2 Ves. 453, 454. Fishmonger's Company v. East India Company, 1 Dick. 163, 165, and Attorney General v. Nichol, 16 Ves. 338, 341, 342.

It appears from these cases, that " whoever comes into equity on such a right must "found it either on the defendants' building, so as to stop ancient lights, or else on some agreement, either proved or reasonably implied;"" that a diminution of the value of the premises is not a ground; and that the Court will not interpose on every degree of "darkening ancient lights."-See per Lord Hardwicke and Lord Eldon, C., ubi supra.

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[66] SWEET against SOUTHCOTE. [1786.]

[S. C. 2 Dick. 670.]-Master of the Rolls for Lord Chancellor.-Assignee of a mortgage from persons not having notice of mortgagor's being only tenant for life, not bound to discover whether he himself had notice. (See Mr. Beames' Elem. of Pleas in Equity, p. 243, and the authorities in the note.)

This was a bill to discover whether the defendant, who was assignee of a mortgage, had not notice that the original mortgagor was only tenant for life, stating that the title-deed, by which this appeared, was in the defendant's hands.

The defendant pleaded that he was assignee of the mortgage for valuable consideration, and through many assignments, from persons who had no notice.

It was argued, that this plea was not good; for it should have stated whether the defendant, personally, had notice.

But his Honor allowed the plea, holding that the plaintiff could not call upon the defendant to shew whether he had or had not notice; for whether he had, or had not, was immaterial if those through whom he claimed had not; he having a right to avail himself of their being purchasers without notice. (No Entry on this occasion.)

BANCROFT against WARDOUR. [1786.]

[S. C. 2 Dick. 672.-Master of the Rolls for Lord Chancellor.-There shall not be two demurrers to the same bill, but if a demurrer to the original bill be over-ruled, there may be a demurrer to the amended bill.

This was a demurrer to a bill for an injunction, and account of profits in selling drugs; the answer admitted importing only, not selling but the principal objection to the demurrer was made by Mr. Mansfield, that there had been a former demurrer to this bill, which was over-ruled by Lord Chancellor; and there could not be two dilatories.

His Honor said, that he remembered a rule laid down somewhere, that, after a