1803. ANDERSON V. DWYER. been made on the foot of the annuity during Lady M.'s life, but since her death the defendant had paid sundry sums to the amount of 660%, to her personal representative; on whose behalf Mr. Beatty insisted, First, That interest on the arrear of Lady Meredyth's annuity ought to be allowed on the ground of its being charged on a productive fund; and Secondly, That there ought to be an apportionment for that part of the half-year which preceded her death. 1. Wherever an executor or trustee keeps money for a long time in his hands and either uses it in the way of his trade or (as in the present case) lays it out in securities bearing interest, he shall be charged with interest. Newton v. Bennet, 1 Bro. C. C. 359; Perkins v. Baynton, ibid. 375 ; Treves v. Townshend, ibid. 385. And an executor retaining money for any length of time in his hands unproductive, where he might have made interest upon it, is chargeable with interest. Bird v. Lockey, 2 Vern. 745; Franklin v. Frith, 3 Bro. C. C. 433; Tew v. Earl of Winterton, 1 Ves. jun. 451. In the Draper's Company v. Davis, 2 Atk. 211, Lord HARDWICKE says, "There is no certain rule of "the court for giving of interest on the arrears of an an"nuity; it hath been done in many instances, and for the "most part where it was the bread of the wife or child;" and in that case he gave interest on the arrears of an arnuity for 28 years (from the time of the confirmation of the Master's report) in favour of the representative of an annuitant. The principal grounds on which it is withheld are, that other creditors, or the heir at law, may be prejudiced, by the allowance of it. Morris v. Dillingham, 2 Ves. 170; grounds which cannot be pretended in this case. In Newman v. Auling, 3 Atk. 579, interest was allowed on an annuity given by way of maintenance, and a bond to secure the payment; and it is said there that interest shall be decreed upon an annuity if charged upon real estate (as here) and in arrear, or if secured by a penalty to enforce the payment out of personal estate. In Stapleton v. Conway, 1 Ves. 427, the Lord CHANCELLOR says there had been cases where interest on the arrears of an annuity had been given; especially to a jointress for a long and obstinate delay of payment, and frequent demand of money; a rule which is strongly applicable to the circumstances of this case. 2. It must be admitted that annuities are not within the provisions of the statute which apportions rents reserved on leases made by tenants for life: but an annuity given for maintenance of children is apportionable. Hay. v. Palmer, 2 P. Wms. 501; Edwards v. Edwards v. Lady Warwick, ibid. 176. And in Howell v. Hamforth, 2 Bl. 1,016, where there was an annuity to a feme covert to her separate use, DE GREY, Chief Justice, said " Though rents and com"mon annuities are not apportionable either by law or equi ty, yet in equity the maintenance of infants is always ap66 portioned up to the day of their deaths, &c. this case depends on similar principles, being for the separate mainte"nance of a feme covert. Lord CHANCEllor. That must have been a case where the husband made a separate provision for the wife, which is quite different from an annuity left to the separate use of the wife who is living with and maintained by her husband: besides, in that case the annuity was secured by bond. As to the other point: the cases cited have been all discussed in the court of Chancery in England, and the result has been to refuse interest except under very particular circumstances, and though 1804. ANDERSON V. DWYER. 1803. ANDERSON v. DWYER. it seemed to be the justice of these cases to give interest, it has been found the wisest way not to do so, as the principle might be extended so far as to be highly mischievous and tend to create litigation in every case, and to encourage creditors to delay the prosecution of their suit.(a) Reg. Lib. xlix. 345. (a) See Creuze v. Hunter, 2 Ves. jun 157, and 4 Bro. C. C. 316, Sa C. and the cases there cited by the Lord CHANCELLOR. Feb. 13. On demurrer to the whole bill being allowed, the bill shall be dismis sed, and costs shall be taxed as upon a dismissal, except the costs on the demurrer, which shall be allowed as heretofore. GENERAL RULE. THE RIGHT HONOURABLE THE LORD HIGH CHANCELLOR OF IRELAND is this day pleased to order, that in future, in all cases where a demurrer to the whole of plaintiff's bill shall be allowed, the bill shall be dismissed; and the order for taxing the costs on the allow ing the demurrer, shall direct the costs of the defendant to be taxed and paid as upon dismissing of a bill, except the costs of arguing the demurrer, for which the defendant shall be allowed only the costs heretofore paid upon the al lowing of a demurrer. Reg. Lib. (Mot.) lxxvii. 380. 1804. O'CONNOR v. SPAIGHT. THE defendant by indenture bearing date 31st March, Feb. 21, 23. Where there between land lord and tenant, so as to produce an account too be taken at law payment of rent, the tenant may file a bill, before judgment at law, for an action on the foot of 1780, demised certain premises to the plaintiff for three have been valives, at a rent of 20s. per acre for every acre the demised rious dealings premises should or might contain, under which demise the plaintiff entered into possession; the number of acres was not ascertained, nor did plaintiff appear to have made any regu- complicated to lar payments of rent eo nomine, nor had defendant given and the landhim any receipts in full or for precise gales ;* but from 1780 lord has brought ejectdown to 1796, the plaintiff had been in the constant ment for nonhabit of accepting defendant's bills, of paying money to his order, of selling him goods on credit, and supplying him and his family with money, the particulars of which several sums were set out in a schedule annexed to the bill, and for which the plaintiff insisted that if credit were given, a balance would appear due to him. The defendant brought his ejectment for non-payment of rent, as of Michaelmas Term 1796; in April 1797, plaintiff filed his bill, setting forth the particulars of the various dealings between the tenant need not parties, and praying an account on the foot thereof, and that defendant should pay plaintiff the balance due to him after deducting such sum as might appear due to the defendant on account of rent; and praying an injunction against the ejectment. On 29th May 1797, consent for judgment was given, and on 1st July, the landlord, by his affidavit according to the statute, claimed a sum of 2161. 8s. due to him for rent above all just allowances. The defendant's answer submitted to the account, but refused credit for most of the items set forth by the bill, * A common expression in Ireland for payments made at several different times.....Amer. Ed. those dealings, and to have the claimed to be bring in the rent under stat. Geo. 1. c. 5. 4 1804. V. SPAIGHT. denying the facts as to some, and alleging that as to others O'CONNOR there were double charges; and insisted that so far from there being a balance due to plaintiff, a sum of 216. (which was considerably more than a year's rent) was due by him at the time of the ejectment brought, after making all just allowances. An injunction had been obtained for want of an answer, and upon the coming in of the answer, an order was made to continue the injunction till the hearing, on plaintiff's bringing in the sum sworn due within 40 days from the day of filing the answer(a); this order not having been complied with, the injunction was dissolved and the defendant executed his habere: the plaintiff proceeded to examine witnesses, and proved several items in his account which had been denied by the answer. Agreement for an abatement of rent of lands is within the statute of frauds. It is not ne The bill also insisted upon the benefit of an alleged agreement for an abatement of the rent, and a paper writing was produced in evidence; but the court holding that such an agreement came within the statute of frauds, and the paper produced not being signed as the statute requires, and there not appearing any distinct payment according to the abated rent, that point was no further urged. A preliminary objection was also made on the part of the defendant, that as the possession had been changed pending the suit by the execution of the habere, and it was no part of the prayer of the original bill to have the possession restored, plaintiff ought to have filed a supplemental bill to put that matter in issue, and pray that specific relief. But the Lord CHANCELLOR said that it was not the practice in England to file a supplemental bill where there was a mere change of possession upon an injunction being dissolved, and possession where there were no accompanying circumstances, and changed pend. ing the cause. cessary to file a supplemental bill, in order to state that an harbere has been executed (a) See 11 Ann. c. 2, s. 4. |