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1803.

LARGAN

V. BOWEN.

their wives under Hartpole's will. Hovenden (who had a charge on the estate) and Doran his assignee were made parties in the progress of the suit, and a receiver had been appointed by consent. The defendants Bowen and Lecky afterwards came to an agreement with the plaintiff and the other parties (except Hovenden and Doran) and obtained a consent from them that the bill should be dismissed. Upon these consents and also upon an alleged consent of Doran, the defendants Bowen and Lecky moved at the rolls that the bill should be dismissed ; but that consent appearing to be invalid, the Master of the Rolls refused the motion. There being a balance in the hands of the receiver, Bowen and Lecky then moved that this balance should be paid to them, and obtained a conditional order: at the same time, Doran moved on a cross notice, that this balance should be paid to him in liquidation of his demand, and that the bill should be retained, with liberty for him to carry on the cause upon indemnifying the plaintiff, and that the receiver should be continued, which motion the Master of the Rolls refused, and thereupon Doran appealed to the Lord ChanÇELLOR.

At the same time that Doran's motion came on, Mr. Wm. Johnson and Mr. Radcliff moved on behalf of Bowen and Lecky to discharge the receiver. They stated that Doran had in fact no claim on the estate ; that whatever claim Hovenden originally had, had since been satisfied ; and that Doran notwithstanding continued to retain the title deeds in his hands to the prejudice of the estate. They insisted that if these circumstances appeared on a motion to appoint a receiver at Doran's instance, the court would refuse the application, and therefore it will not now continue the receiver at the instance of Doran alone ; it is the established practice of the court, that a defendant shall not be allowed to take up a cause until after a decree to an account, and a creditor is

VOL. I.

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1803.

LARGAN

BOWEN.

not until then obliged to relinquish his proceedings at law ; Rush v. Higgs, 4 Ves. jun. 638: therefore Doran may still proceed at law, and if so, it is not matter of course, but discretionary in the court to let him in here ; and under the circumstances the court will not think him an object of favour ; especially as the estate is so ample that Doran stands in no need of a receiver to secure him.

Lord CHANCELLOR.

It is much more important to attend to the general administration of justice in this court, than to the interests of any particular parties; the claims of Mr. Doran and Mr. Hovenden may possibly be liable to very great objections ; and with respect to what is stated against them I shall direct inquiry. But here they were made parties as having incumbrances (though I do not much advert to that circumstance) : Suppose they were creditors ; If they were creditors who had lain by and not proceeded in the suit at all, and that a receiver had been appointed and the property taken out of the hands of the tenants for life; I should think it would be justice to such creditors, (though I might compel them to file a new bill) to put them as far as I could in the same situation as if they had not been depending on the faith of these proceedings ; that is, not to discharge the receiver, and to give them leave to file a bill which should be taken as a bill filed in 1798. (It was stated at the bar that a bill had been filed by Hartpole in his life-time to impeach Doran's demand, which had abated by his death.) Then I can direct that Doran shall consent that that bill shall be taken as revived, and then the whole case will be before the Master. It is very necessary that good faith should be kept in the prosecution of proceedings of this nature, otherwise estates would be ruined by a multiplicity of suits; this is the principle on which the court

1803.

LARGAN

7. BOWEN,

allows persons having charges on estates to file bills for their own benefit and the benefit of other creditors. Now, in this case Doran was made a party, which admitted that he had a charge on the estate ; and then this suit, (the effect of which if prosecuted would have been to bring forward his claims without further bill being filed) is settled by agreement among the other pariies, so that he is to be puť out of court: it would be highly mischievous to permit this. This bill filed in 1798 remains ineffectual in 1803 ; this alone is a strong circumstance for continuing the receiver ; because the persons who have the estates subject to these charges, have no right to enjoy them; their enjoy: ment is unconscientious until these demands are satisfied.

The case in 4 Ves. jun. was one of a different description from the present. There the creditor brougl t an action at law against the executor ; if he could prosecute that action with effect and become a judgment creditor before the de. cree, he would have a priority against the personal assets, which priority the court would not allow him to obtain after the decree. Courts of equity will not restrain proceedings of creditors at law against executors to obtain payment of debts merely on a bill filed by other creditors to carry the trusts of the will into execution, until there is a decree: but from the moment of the decree the court proceeds on the ground that the decree is a judgment in favour of all the creditors, and that all ought to be paid according to their priorities as they then stand(a); and that the court cannot execute its own decree if it permits courts of law to alter the course of payment.(6)

tin v.

(a) Vid. acc. Wortley v. Birkhead, 2 Ve8. 571. (d) Vid. Morrice v. Bank of England, Cas. Temp. Talb. 217; Mare Martin, I Ves. 211; Brooks v. Reynolds, 1 Bro. C. C. 183;

v. Fryer, Bro. C. C. 23; Hardcastle v. Chettle, 4 Bro.C. C, 163.

1803,

LARGAN

V. BOWEN.

" Discharge said order so far as same respects said sum for

money being paid out to said defendants, and refuse " said defendants' motion for discharging said receiver, and 6 let the said defendants and the said E. Doran forth“ with go before the master, and let the master inquire " and report whether defendants Doran and Hovenden “ have, and whether either and which of them has any, " and what claims on the estates of said George Hartpole, “ deceased, either in right of the charge claimed by de. “ fendant Hovenden, or in his the said Doran's own right; “ in taking which said account let the suit heretofore in, “stituted in the year 1798, by G. Hartpole against said E. Doran, be considered as if fully revived, said E. Doran “to be under the terms of admitting same. so to be, and “ also to be under the terms of producing all deeds, papers, $ evidences and books of accounts which he may have in “ his hands, power, or custody, relating to his said claims as “ the said master shall see fit. , This order to be without

prejudice to said defendants proposing security for the

approbation of the master, in order to found a motion “ for discharging said receiver: and let the remainder of & the motion stand over until the report shall be had.”

Reg. Lib. (Mot.) lxxvii, 238.

END OF THE SITTINGS AFTER MICHAELMAS TERM, 1803.

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IN THE MATTER OF THE DUCHESS OF
CHANDOIS, A LUNATIC.

Jan. 23. An inquisition taken in England under a commission Inquisition

taken in Eng. of lunacy issued there, finding a person non compos, is not land not suti. a sufficient foundation for a grant of lands belonging to the

cient to found lunatic in Ireland. There must be an inquisition and find. in Ireland, ing under the authority of the great seal in Ireland for that purpose.

grant of lands

ANDERSON 0. DWYER.

Feb. 10. Interest on the

arrear of an WILLIAM ALEXANDER ENGLISH by his will, queathed to a dated 23d of April, 1794, devised to the defendant all married wohis property in lands, and all other his property of what role and sepa

man for her kind or nature soever, “ In trust to pay his dearly beloved rate use, not

given, though sister, Lady Helen Meredyth, the annual sum of 6001. the fund was “ for her sole and separate use, and not to be subject in any and though

manner to the controul of her husband; to be paid and there was a “ payable during her life by equal half-yearly payments.” Nor is such

large residuum. Testator died in May, 1794. Lady Meredyth died on the annuity po 7th of Oct. 1796, and it appeared that no payments had Secus, Sembl.

if it had been given as a se parate mainta,

nande .

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