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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. 559; 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 HARDWÍCKE says, “ There is no certain rule of " the court for giving of interest on the arrears of an ag“ 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 annui. tant. 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

1804.

ANDERSON

V.

DWYER.

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 say's 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. 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 ap“portioned up to the day of their deaths, &c. this case de“pends on similar principles, being for the separate mainte“ nance of a feme covert. 30

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 particularcircumstances, and though

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1803.

ANDERSON

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)

DWYER.

Reg. Lib. xlix. 345.

(a) See Creuze v. Hunter, 2 Ves. jun 157, and 4 Bro.C. C. 316, C. and the cases there cited by the Lord CHANCELLOR.

GENERAL RULE.

Feb. 13.

TH

HE RIGHT HONOURABLE THE LORD HIGH On demurrer to the whole CHANCELLOR OF IRELAND is this day pleased to

allowed, the bill order, that in future, in all cases where a demurrer to the shall be dismis. whole of plaintiff's bill shall be allowed, the bill shall be sed, and costs shall be taxed dismissed; and the order for taxing the costs on the allow. as upon a dis.

ing the demurrer, shall direct the costs of the defendant missal, except the costs on the to be taxed and paid as upon dismissing of a bill, except demurrer, which shall be

the costs of arguing the demurrer, for which the defendant allowed as shall be allowed only the costs heretofore paid upon the al heretofore.

lowing of a demurrer.

Reg. Lib.(Mot.) lxxvii. 380.

1804.

O'CONNOR v. SPAIGHT.

an account too

be taken at law

before judg

The defendant by indenture bearing date 31st March,

Feb. 21, 23.

Where there 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 lord and tenant,

so as to produce 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 land. him any receipts in fullor 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 payment of

rent, the tenant his order, of selling him goods on credit, and supplying him may file a bill, and his family with money, the particulars of which several ment at la sums were set out in a schedule annexed to the bill, and for for an action

on the foot of which the plaintiff insisted that if credit were given, a ba- those dealings, lance would appear due to him. The defendant brought and to have the his ejectment for non-payment of rent, as of Michaelmas to the rent

claimed to be Term 1796 ; in April 1797, plaintiff filed his bill, setting due. And the forth the particulars of the various dealings between the tenant need not

bring in the parties, and praying an account on the foot thereof, and that rent under stat. defendant should pay plaintiff the balance due to him after 4 Geo. 1. c. 5. 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 216l. 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.

VOL. I.

RE

V.

1804. 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). SPAIGHT.

(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

The bill also insisted upon the benefit of an alleged for an abate

agreement for an abatement of the rent, and a paper writing ment of rent of lands is was produced in evidence ; but the court holding that such within the statute of frauds. 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 re

stored, plaintiff ought to have filed a supplemental bill to It is not necessary to file put that matter in issue, and pray that specific relief. But supplemental

the Lord CHANCELLOR said that it was not the practice in bill, in order to state that an England to file a supplemental bill where there was a mere been executed change of possession upon an injunction being dissolved, anel possession where there were no accompanying circumstances, and changed pende ing the cause.

(a) See 11 Ann. c. 2, 3. 4.

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