1803. HUGHES υ. KEARNEY. subject to an account, and the balance only to be received by the vendor. It cannot be considered that the vendor relied on it as a security. Suppose bills given as part of the purchase money, and suppose them drawn on an insolvent house: shall the acceptance of such bills discharge the vendor's lien; they are taken, not as a security, but as a mode of payment. Decree affirmed, with costs. END OF THE SITTINGS OF HILARY TERM. MEMORANDUM. In the Easter Vacation, the Right Honourable JOHN STEWART resigned his office of Attorney General, and was succeeded by STANDISH O'GRADY, Esq. who was also shortly after sworn a member of his Majesty's Privy Council. 1803. EASTER TERM, 1803. LATOUCHE & others, v. Lord DUNSANY & others. Lord DUNSANY & others, v. LATOUCHE & others. May 10, 11, 12. 13, 16, 17, 20. is prevented by tered incum- for the pur- THOMAS WARREN being seized in fee of the lands A mortgagee of Courtduffe and Castleknock, mortgaged them in Oct. 1743 to Richard Fitzwilliam to secure the payment of 6,000. Upon the death of Thomas Warren in 1766, his estate descended upon his brother John Warren, who in 1768 mortgaged the equity of redemption to Henry Cary to secure the sum of 2,000l. and between that year and 1791 confessed several judgments: some of these were confessed to Mary Plunket, and had since become vested in Lord Dunsany, who on the 13th April 1791, took a mortgage on said lands for the sum then due on the judgments, amounting to 5,616/. 16s. 6d. which mortgage was registered on the 30th of the same month. Mary Anne Lawless, a plaintiff in the cross cause, and who had come in before the master in the original cause, claimed under a custodiam against said lands obtained in the year 1789, on a judgment of Trin. 1774, and Henry Farrell (another plaintiff under the same circumstances) claimed on the foot of a judgment of Hilary 1776. deeds under this act, judg ments also ob tain priorities, act. A custodee shall account in a suit on behalf of creditors in the same man. ner as a mort Susannah Trant having a judgment against John Warren gagee in pos. as of Hilary term 1771, obtained a custodiam and got into session. 1803. LATOUCHE V. NY. V. LATOUCHE. receipt of the rents of said lands on the 18th day of Feb. 1777, and about the same time David Latouche (one of the plaintiffs in the original cause) obtained two grants in custoLd. DUNSA- diam of said lands for satisfaction of two judgments conLd. DUNSANY fessed by Warren, one of Mich. 1773, and the other of Trin. 1776; Mr. Latouche on the 7th of February 1778, took an assignment of Mrs. Trant's judgment and custodiam, and as assignee of Mrs Trant's custodiam and on the foot of his own custodiams entered into possession and receipt of the rents of said lands and continued therein until the year 1799, when a receiver was appointed by the court. All the assignments taken by Mr. D. Latouche were in trust for himself and Messrs. John and Peter Latouche, his co-plaintiffs in the original cause. From the time of Messrs. Latouche getting into possession until the year 1782, the house and demesne of Courtduffe and the lands of Castleknock were let from three years to three years by the court of Exchequer under the custodiams, and together produced a rent of 4231. per annum: the rest of Mr. Warren's estate produced about 1,100l. per annum. In Feb. 1782, the lands of Castleknock being out of lease were advertised to be let by the court of Exchequer under Mr. Latouche's custodiams, and Wm. Grier was declared tenant for three years in trust for Mr. Latouche at 250l. per annum ; but Mr. John Chamley, who was attorney for Mr. Warren, having procured the consent of Mr. Warren, and of Mr. O'Brien, attorney for Mr. Latouche, the former setting was waived, and Chamley declared tenant for said lands for three years at 240l. per ann. rent; and on 16th Nov. 1782, Warren executed to Chamley a lease of said lands for three lives renewable for ever, at the same rent. Chamley also prevailed on Warren, in 1785, to execute to him a lease of the house 1803. LATOUCHE V. Ld. DUNSA NY. and demesne of Courtduffe for a term of 999 years at a rent of 135%. which was the same rent for which they had been let to Chamley for three years by the court of Exchequer. In 1783 and 1785 he procured from Warren, from Latouche, and from Christopher Abbott, assignee of Fitzwil- Ld. DUNSANY liam's mortgage, confirmations of the said two leases, and Warren being in distress and in the power of Chamley, the latter procured from him various confirmations and acknowledgments that the leases were not held in trust for him. Between 1771 and 1783, some judgment debts of Warren's were paid off, or very considerable sums paid on account thereof; amongst these were a judgment obtained by Luke Savage, and also one which had been obtained against Warren as security for a Mr. Palles; of these judgments which were wholly or in part discharged, assignments were procured by Chamley as a trustee for Warren, and no satisfaction was entered on them; so that on record they appeared wholly unsatisfied. In 1786 the Messrs. Latouche became pressing for a mortgage for better securing the amount of their three judgments and custodiams, on the foot of which they then claimed a sum of 7,603l. 118. 7d. as due to them a negotiation for this purpose was set on foot between Mr. O'Brien, the agent of the Messrs. Latouche, and Mr. Chamley the agent for Mr. Warren; and it was agreed upon, that a mortgage should be executed to the Messrs. Latouche, provided they agreed to advance the amount of Savage's and the other judgments which had been either wholly or in part paid off, but which were represented to them as unsatisfied judgments, and it was proposed to them to include in the mortgage the sum so to be advanced on the foot of these judgments. The Messrs. Latouche agreed to this, and accordingly they took assignments of these different judgments, in all of which Mr. V. LATOUCHE. 1803. LATOUCHE V. Ld. DUNSA- V. LATOUCHE. Warren joined, and advanced upon these assignments the sums appearing on record to be due on these several judg ments and for the amount, which was about 4,000l. together with the amount of their former judgments and custodiLd.DUNSANY ams, Mr. Warren executed to them a mortgage on the 9th Nov. 1786 of all said lands for a sum of 13,9087. 8s. By a covenant in this deed it was provided that the acceptance. of the mortgage shoud not prejudice the Latouche's custodiams or their priority under the same; but that they should still continue their possession as custodees only until the amount of the custodiams was discharged, and then that possession should be retained by them as mortgagees. In 1789 Messrs. Latouche procured an assignment of Fitzwilliam's mortgage, and in the year 1790 they took an assignment of Cary's mortgage. On the 8th December 1792, Messrs. Latouche filed their bill against Warren, Lord Dunsany, and others; stating Fitzwilliam's mortgage and the assignment to them, the subsequent judgments assigned to them, and the mortgage of 9th Nov. 1786, and insisting on their rights to tack this mortgage to Fitzwilliam's. Warren answered; Lord Dunsany suffered a decree of sequestration to be had against him. On the 27th February 1795, a decree to an account was pronounced, and Lord Dunsany went before the master to prove his debts, but the master having reported Messrs. Latouche prior creditors, (on the principle of tacking insisted on in their bill) to an amount likely to swallow up the whole fund, Lord Dunsany took exceptions; which exceptions having been over-ruled by Lord CLARE on the ground that it was not competent to Lord Dunsany to except to the report, there being a decree upon sequestration against him; his lordship |