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Newman

with which the Editor has been honoured by Lord Colchester, is as follows:"v. Newman and Others. In Chancery, Sittings after Mich. Term, 1789-[12 Dec.

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Lord Redesdale's note]. Bill by F. N., wife of defendant F. N. jun., F. N. sen. her father, and F. C. N. an infant, her daughter, against defendants F. N., S. P., and "W., trustees under a marriage settlement, and Tucker, mortgagee of estates settled, by virtue of a mortgage in which the wife had joined by a fine. The bill stated a marriage settlement, by which trustees had engaged to pay, 1st, £100 to the wife as a separate maintenance, residue of rents and profits to the husband, with remainders over; "that a separation had taken place; and after that trustees being in possession, there had been the £100 paid to plaintiff for two years; since that, only small sums on account, and for the last two years nothing.

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Defendant, F. N. jun., had filed a cross bill, in which he insisted he had been tricked into the execution of the settlement after marriage, his father-in-law having made an engagement which he never kept.

"Mitford (for plaintiff)-moved that a receiver might be appointed, who should take rents and profits, and pay over the £100 per annum to plaintiff F. N.

Solicitor General opposed it on the part of the husband, and on the ground disclosed in the cross bill.

But the Chancellor. There is a clear breach of trust in the trustees; they have "paid over the whole to the husband, and, at any rate, you must give this woman some support. How could she have alimony, but by some such deed? Do you want to starve her?

Lloyd opposed it on the part of the mortgagee; and said, that no such order could "be made against him.

"Mitford answered. That he was not in possession: that such an order might be "made by the course of the Court, subject to the mortgagee being let into possession if he chose it. When a second incumbrance comes before the Court, he may insist on the first incumbrancer taking possession, or that a receiver may be appointed. The rents and profits are so large, that they will discharge the mortgage in three years. "The Chancellor granted it accordingly.

"Nota. The bill charged that the mortgage was obtained by fraud, and prayed that if the mortgage turned out to be good, the rents and profits might be applied to keep down the incumbrance."-From Lord Colchester's MSS. So also 1 Cox, 422; 2 Cox, 378, &c. Marq. Donegal, before Lord Eldon, C., 12 Feb. 1803, S. P. MSS. Et Anon. 3 Aug. 1803, when Lord Eldon, C., said, the practice was first introduced by Lord Thurlow and Lord Kenyon when M. R.

(3) A similar decision to the above was made in the cause of the King v. Brewen (vide 2 Madd. Rep. 431, and 3 Meriv. 270), Chelmsford Assizes, 1786, before Lord Loughborough.

That was an issue arising upon a traverse to an inquisition on an outlawry. Upon the inquisition the sheriff had returned against the estate in question, as the property of the outlaw. It was objected by the defendant that the estate was vested in him as a

trustee.

The husband made a settlement of the estate upon his wife, after marriage. Upon their agreeing to live separate, the estate was conveyed to trustees (of whom the defendant is the survivor), for the use of the wife; and they covenanted to indemnify the husband against her debts.

It was objected, that this conveyance was within the statute of Eliz. against fraudulent conveyances.

Lord Loughborough, without entering into the question, whether the statute of Eliz. applied to the king, said, that the statute operated upon conveyances made by the husband to the wife, after marriage; but that this was a deed made upon a valuable consideration, the trustees undertaking to indemnify the husband against the debts of the wife, which was a sufficient valuable consideration to take it out of the statute ; and upon that a verdict was found against the king.

[94] BATSON against LINDEGREEN. [1786.]

Lincoln's Inn Hall, 17 July.-Devise to sell the residue (after payment of debts) and the money to be part of the personal estate; upon a total insolvency held to be equitable assets. ("And from the rents and profits until sale." Reg. Lib.)

The testator Lindegreen after a direction for the payment of his debts and several legacies, devised the rest of his estates, real and personal, after payment of his debts, legacies, and funeral expences, and liable thereto, to trustees upon trust, to sell and dispose of the same, and in the mean time to set the same to tenants, and that the money to arise from the sale thereof should be placed, and deemed part of his personal estate.

A bill had been filed (the estate proving totally insolvent) by a simple contract creditor, and heard before his Honor at the Rolls, who had decreed the money to be equitable assets, but the specialty creditors were not parties to that cause.-They filed the present bill.

Mr. Mansfield, Mr. Scott, and Mr. Bicknel (for the plaintiffs). The reason in Newton and Bennet for holding the money to be equitable assets, was, that the descent was broken, which it is not in this case; for here the estate descended to the heir until the debts were paid, and then, was to go clear from them to the trustees, and to be deemed part of the personal estate, and as it descended to the heir it would be legal assets, and so likewise, when it became personal estate, it would be legal assets, and the specialty creditors must be paid before those by simple contract. There is a case in Peere Williams (Freemoult v. Dedire, 1 Wms. 429), that wherever the estate descends it is legal assets; and although there has been an idea since the case of Silk v. Prime (in the note upon Newton v. Bennet, Bro. Ch. Rep. 138), that the assets are equitable, yet there is no case against that in Peere Williams.

Lord Chancellor. You construe the word after as an adverb of time, which I do not take it to be in this will.

A devise to the heir to sell, would make the produce equitable assets; and a charge is a devise pro tanto. (Vide 7 Ves. 322, 323, &c.)

His Lordship therefore directed the money to arise from applied as equitable assets. (Reg. Lib. 1785, A. fol. 797.) Davis v. Topp, 1 Bro. C. C. 135 & 524, &c., with the notes. on the principal case in Bailey v. Ekins, 7 Ves. 322.)

the sale of the estates to be (See Newton v. Bennet, and Et vide per Lord Eldon, C.,

[95] Between JOHN KIRKMAN, ROBERT KIRKMAN, MARIA KIRKMAN, and ANNE KIRKMAN, the four surviving Children of JOHN KIRKMAN the Younger, Esq. late one of the Aldermen of the City of London, deceased, Infants, by SAMUEL KIRKMAN, their Uncle and next Friend, Plaintiffs; MARIA KIRKMAN, Widow and Administratrix of the said JOHN KIRKMAN, her late Husband, deceased, and also Administratrix of SAMUEL KIRKMAN, the other Child of the said JOHN KIRKMAN, deceased, who died an Infant, and WILLIAM HUSSEY, Esq. surviving Trustee, named in the Settlement made on the marriage of the said late JOHN KIRKMAN, and MARIA his Wife, De fendants. [1786.]

Lincoln's Inn Hall, 17 July.-Proviso in a settlement that the wife should not be barred of any thing the husband should give or leave by deed or will; he dies intestate, and a freeman of London, her shares by the statute and custom are not a satisfaction of the covenant.(1)

The bill set forth. that, by settlement previous to the marriage between plaintiff's late father and defendant, then Maria Marsh, dated 20th June 1766, in consideration of the said intended marriage, and of the defendant's marriage-portion of £5000, which was paid to defendant's late husband's father, he assigned all his share in a partnership to defendant's late husband, and covenanted, that he would at his death, by will or by deed, give or leave £5000 to be paid by his executors and administrators, within three months next after his decease to the defendant's late husband, to the use of defendant's late husband, and his child or children by defendant, in such shares and proportions as he the father should, by such will or deed, appoint: but, if there should be no such child, the same, after the decease of defendant's late husband, was to revert

pay the

to the executors or administrators of his said father; and, in default of such will or deed, the executors or administrators of said John Kirkman, the elder, should said £5000 to John Kirkman the younger, his executors, &c. And further covenanted, that, in case the said intended marriage should take effect, and the defendant [96] should survive; the said John Kirkman the younger, or his surviving partner or partners in trade, should pay unto the trustees, but to and for the use and benefit of the defendant, £10,000, with lawful interest, in the following portions, viz. one-third part within six months after the decease of the said John Kirkman the younger; one other third, together with interest, to be computed from the end of six months after the decease of the said John Kirkman the younger, within twelve months after the death of said John Kirkman the younger; and the remaining third part in full of said £10,000, together with interest for the same, as aforesaid, within eighteen months next after the decease of said John Kirkman the younger. And it was provided and agreed between the parties, that, in case the defendant should survive the said John Kirkman, and should be desirous to continuing the said £10,000 in the joint trade which should be then subsisting between said John Kirkman the younger, and his partners, to the end of the term then to come in such copartnership, that then she should have full liberty so to do; and the surviving partners, or the heirs, executors, or administrators of said John Kirkman the younger, should, within three months next after his death, enter into a bond, in a sufficient penalty, to pay to said defendant said sum of £10,000 at the determination of said copartnership, together with interest for the same, after the rate of 6 per cent. per annum, to be paid half-yearly, and to commence from the end of six months next after the decease of said John Kirkman the younger. And it was thereby agreed between all the parties, that in case there should be one or more child or children of the body of the said Maria Marsh by said John Kirkman begotten, who should be living at the time of such payment of said £10,000 and interest as aforesaid, and who should survive said defendant, and live to attain twenty-one, or day of marriage (if daughters), that £5000, part of said £10,000, should revert upon the death of said Maria Marsh, and be paid and divided between such child or children (if more than one), in such shares and proportions as said defendant should, by deed or will, whether covert or sole, under her hand and seal duly executed, and attested, by, and in, the presence of two or more witnesses, direct, limit, and appoint; and, in default of such deed, will, or appointment, among such children equally (if more than one), and if only one, then to such only one; the shares to be paid [97] to sons at twenty-one, and to daughters at twenty-one, or day of marriage, which shall first happen, after the decease of said Maria Marsh. And further, that, in such case, for better assuring the payment and distribution of said £5000 in manner aforesaid, in case there be any such child or children, the said Maria Marsh should give security, at the payment of the said second part or portion of said £10,000 and interest above mentioned, to the satisfaction of the trustees, for the faithful payment and distribution of said £5000 after her death, among her said children, or to such her said child, in case there should be only one such who should survive her, and who should live to attain twenty-one, if a son, or twenty-one or day of marriage, if a daughter; and, in default of her giving such security, that then it should be lawful for the trustees, or the survivor, to receive and retain so much of said second payment of said £10,000 as, with the third payment thereof, would make up said £5000, which they should immediately invest in government funds, stocks, or other public securities, with the approbation, and by the direction of said Maria Marsh (if then living) in trust, to the like uses but in case such children should die during their minority, or unmarried (if daughters), then in trust to transfer and pay said £5000 unto such uses as said Maria Marsh should, by deed or will, attested as aforesaid, appoint, and, in default of such appointment, unto her executors or administrators; and then followed a proviso to the effect following: "Provided always, that nothing herein before contained, or the provision hereby before made, or intended to be made and secured, to and for the use and benefit of the said Maria Marsh, out of the personal estate of the said John Kirkman the younger, her intended husband, in case the said intended marriage should take effect, and she shall happen to survive the said John Kirkman the younger, shall be in any wise construed, deemed, taken, or understood to bar or deprive her of her right to dower or thirds by the common law, or any of the laws or statutes of this realm, or by any law, custom, or usage whatsoever, of, into, and out of all such real estate, as the said John Kirkman the younger, her said intended husband, or any other person

or persons, in trust for his use, shall become or stand seised or possessed of in his life-time, nor to bar or deprive her of having, taking, receiving, holding, keeping, or enjoying any other gift, provision, or bequest, which he shall think fit to give, bequeath, leave, or make, to or for her the said Maria Marsh, his [98] said intended wife, in and by his last will and testament, or in or by any other deed or gift in his life-time, or otherwise in anywise whatsoever, any matter or thing herein-before mentioned, expressed or contained, or which in anywise may be understood, deemed, construed, taken, or interpreted to the contrary, in anywise notwithstanding." The bill further stated, that the marriage took place, and that the defendant's late husband John Kirkman, who was not then a freeman of London, soon afterwards became so. That on 15th September 1780, he died intestate, leaving his said wife and five children, (that is to say) the plaintiffs, and Samuel Kirkman, since deceased, him surviving. That the defendant obtained letters of administration of his goods, &c., and possessed herself of his personal estate, to the amount of many thousand pounds, paid his debts, &c., and retained to herself the £10,000 so covenanted to be paid to her by the settlement. The plaintiffs then insist, that, upon the death of their father intestate, and a freeman of London, as aforesaid, the residue of his estate, after payment of the aforesaid £10,000, and his debts and funeral expences, became distributable (in case the settlement is not a bar to defendant's claiming any part of the personal estate), according to the custom of the city, in the following manner one moiety thereof to his five children, the plaintiffs, and their said late brother, Samuel, deceased; and the other moiety became distributable, according to the statute of distribution, viz. one-third of such last-mentioned half part to the said defendant, and the other two-third parts thereof became devisible amongst plaintiffs, and their late brother Samuel Kirkman, deceased; and, in case the said settlement is (as they submit it is) a bar also to her claiming any part of the said personal estate (except as to the said £10,000), either under the said custom or statute, or otherwise, then plaintiffs submit, that both the moieties became divisible between them and their deceased brother only; and, in case the settlement is not a bar to her claiming any part of the intestate's personal estate under the custom, or under the statute, plaintiffs submit, that the shares she shall take, either under the custom or under the statute, or, at least, such share as she shall be entitled to under the statute, ought to be considered as a satisfaction of the £10,000, or, at least, of the £5000 part thereof, which she takes for her own use, they submit also, that she ought to bring £10,000, or, at least, the £5000, into hotchpot. They then state, that their [99] brother died on or about 29th September 1780, aged three years only, and that the defendant obtained administration of his goods, and claim different shares, (according to the effect of the proviso) in his share of their father's personal estate, and that they are also entitled to have £5000, part of said £10,000, secured in the manner in the said indenture mentioned, for their benefit, or the benefit of such of them as shall survive the said Maria Kirkman, and attain the age of twenty-one years, or days of marriage, being daughters. -The defendant, Maria Kirkman, by her answer, claims to be entitled, over and besides the £10,000, by the custom of the city of London, as the widow of a freeman intestate, to her paraphernalia, and furniture of her bed-chamber, and to one-third part of the clear residue of his personal estate and effects, and that plaintiffs, and their said late brother Samuel Kirkman, deceased, are only entitled to one other third part, and that the other third part is to be subject to the statute of distribution, and is to be divided accordingly; and that she, as the widow, is entitled to an equal share with plaintiffs in the distributive part or share, and insists that she is not barred from these claims by the settlement, in as much, as, by the proviso she was not to be barred from right of dower, &c. (as in the proviso); and although her late husband did not make any further provision for her by deed, &c., that his taking up his freedom of the city of London after his marriage, and dying intestate, ought to be considered as a further provision, by giving her title to her customary share in his personal estate, and, for the same reason, claims her distributive share of her husband's estate under the statute; and submits, that the shares she shall so take, under the custom or under the statute, ought not to be deemed a satisfaction for either of the said sums of £10,000 or £5000, nor ought she to bring the sum of £10,000 into hotchpot, the rule for bringing into hotchpot only extending as between brothers and sisters, where some are advanced during the father's life, and others not so. She also claimed to be equally entitled with her sons and daughters by the statute of distribution, in the share of her deceased son, out of the personal estate of her late husband."

Mr. Attorney-General [Arden] and Mr. Mansfield, for the plaintiffs contendedthat what Mrs. Kirkman took by the intestacy of her [100] husband as a freeman of London, would be a satisfaction pro tanto for the £10,000 if it were not equal to it in value, which it was said, in this case, to be, that it had been determined in the cases of Blandy v. Widmore, 1 Wms. 324, and Lee v. D'Aranda, 3 Atk. 419; 1 Vesey, 1, S. C. (see the Supplement to Vesey, senior, p. 1, &c.), that where there was a covenant to leave a specific sum, an equal share, coming under the statute of distribution, was a satisfaction of the covenant. Therefore, being administratrix, and, as such, taking her distributive share, the covenant here is satisfied. This would be clear if the proviso was out of the case.-The proviso is a strange one. It is to prevent any further provision, which he might make for her, from being a satisfaction; but it is restrained to will or deed, and omits to provide for intestacy. It must therefore, on the intestacy, be a satisfaction.

Mr. Scott, for the defendant. The cases of Blandy v. Widmore, and Lee v. Cox and D'Aranda, have been distinguished from cases of satisfaction; they have been called cases of performance. Barret v. Beckford, 1 Vesey, 520. The sum here is uncertain; it may not be a complete satisfaction; besides, there is a material difference between this proviso and other parts of the deed; in the other parts, the provision is by deed or will; in this, by deed, will, or any other means whatsoever.

Lord Chancellor. Before the cases of Blandy v. Widmore, and Lee v. D'Aranda,(2) it may be doubtful, whether suffering a part to come by the statute, was a sufficient performance; I should have thought the word leave, in these cases, should be taken in an active sense; but they have settled the point. At the same time I think, neither of those cases can apply where the whole is not satisfied. (3) It was the intention of the proviso, here, that the covenant should not bar her from any effect of the husband's success. As to the £5000, she is entitled by the settlement to the use of it, therefore she must give security, otherwise I would have invested it. (Reg. Lib. 1785, A. fol. 823.)

(1) Vide Haynes v. Mico, 1 Bro. C. C. 129, with 10 Ves. 14, and the references ; and see the material cases on the subjects of Satisfaction, Performance, &c., judiciously classed by Mr. Swanston, in his note to Goldsmid v. Goldsmid, 1 Vol. Swanst. Rep. 221, 222. See particularly Lord Eldon's elaborate judgment in Garthshore v. Chalie, 10 Ves. 7, &c. &c., in which there are some observations upon part of what Lord Thurlow is reported to have said in the principal cases. See 10 Ves. 14.

(2) Lord Eldon, C., observed, in Garthshore v. Chalie, 10 Ves. 14, that Blandy v. Widmore, and Lee v. D'Aranda, have remained unimpeached; and that it was not the intention to shake them in Haynes v. Mico (1 Bro. C. C. 129), and Devise v. Poulet, 1 Cox, 188.

(3) Lord Eldon, C., says, in 10 Ves. 14, "I believe it is accurately stated, upon Lord Thurlow's authority (notwithstanding what His Lordship is represented to have said “in Kirkman v. Kirkman), that if in Blandy v. Widmore, and Lee v. D'Aranda, what was taken in the second instance was properly held a performance, because it was more; it must, if it had been less, have been taken to be a part performance."

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[101] TWEDDELL against TWEDDELL.

[Affirmed on re-hearing, postea, 152.]-Lincoln's Inn Hall, 18 July.-A. purchased an estate subject to a mortgage, the personal estate shall not exonerate the real for payment of the mortgage debt.(1) (No entry on this occasion: but the Lord C. afterwards affirmed the present order allowing the demurrer. Vide 2 Bro. C. C. 152, and Reg. Lib. 1786, B. fol. 334.)

This bill was filed by Francis Tweddell, devisee for life of an estate called High Laws, under the will of John Aynesley his grandfather, and John Tweddell eldest son of Francis, against the personal representatives and next of kin of John Aynesley, praying, amongst other things, to have the personal estate of John Aynesley aforesaid, applied in discharge of a mortgage subsisting upon the High Laus' estate. And the case made by the bill was as follows:—

That by indentures of lease and release, by way of mortgage, dated the 9th and