Reports of CASES DECIDED in the HIGH COURT OF CHANCERY by the Right Honorable Sir [1] PRANKERD V. PRANKERD. March 17, 1820. Advancement. A tenant in possession of copyholds, grantable for lives, procured, at his own expense, a grant of it to his son in remainder, and at the same time surrendered it to the use of his will: Held, that the son was not entitled to the estate so granted to him by way of advancement, but was a trustee for his father. By the custom of the manor of Bleadon with Priddie, in the county of Somerset, copyhold lands, held of the manor, are granted to four persons for their lives, successively, as they are named in the grant; and the grantee in possession is enabled by surrendering all his estate in possession, reversion, and remainder, to pass his own estate, and also the estates in reversion or remainder expectant thereupon. In the year 1794 the Plaintiff was seised in possession of a copyhold estate held of this manor for his life; and his two daughters, Mary Prankerd and Louisa Prankerd, were seised of the same estate for their lives in remainder successively. The Defendant was the son of the Plaintiff; and at a court held in December 1794, the Plaintiff procured [2] a grant of the estate to be made to the Defendant for his life, in remainder expectant upon the determination of the estates of the Plaintiff and his two daughters, and paid to the lord the fine of £130 for this grant; and at the same court he surrendered all his estate and interest in the premises, during his own life, and the lives of his two daughters and the Defendant, to the use of his will. The Plaintiff's daughters having died, the Defendant claimed, under this grant, to be entitled to the premises upon the determination of the Plaintiff's estate, for his own use, by way of advancement made to him by the Plaintiff, his father. In consequence of this claim this suit was instituted, for the purpose of having it declared by the Court that the Defendant held the premises under the grant, in trust for the Plaintiff, and of having a declaration of trust executed by him to that effect. Mr. Bell and Mr. Simons, for the Plaintiff, said it was now settled that, if a father purchases an estate in the name of a child, it is, primâ facie, an advancement for the child; but that, if the father, at the time of the grant, does any act, shewing that he meant the purchase to be for his own benefit, the child would be a trustee for the father; and they contended that the surrender in this case, made by the Plaintiff to the use of his will, was a sufficient declaration of such intention; and they cited Dyer v. Dyer (2 Cox; 92, and 2 Watk. Copyh. 216), Finch v. Finch (15 Ves. 43), and Murless v. Franklin (1 Swanst. 13). V.-C. II.-1 [3] Mr. Heald and Mr. Bickersteth, for the Defendant. THE VICE-CHANCELLOR [Sir John Leach] said that, as the Plaintiff had surrendered the estate to the use of his will, it was clear he meant it to remain at his own disposal, and not to be an advancement for the Defendant; and that, as the surrender was contemporaneous with the grant, the Defendant ought to be declared a trustee of the interest which he took under the grant for the Plaintiff; and he decreed accordingly; but refused to give the Plaintiff his costs. [3] TURNER AND OTHERS v. ROBINSON AND OTHERS. March 27, 1821. Plea. A plea of bankruptcy is good notwithstanding the commission issued after the filing of the bill. Matters which arise after the filing of the bill may be pleaded; by analogy to the rule at law. In Trinity term 1820 the Plaintiffs, being entitled to certain shares of the residuary personal estate of William Woolcott, deceased, filed their bill against his personal representatives, and the other residuary legatees, for an account of personal estate, and to have their shares of the residue ascertained and paid. On the 28th of September 1820 a commission of bankrupt issued against Charles Frederick Woolcott, one of the residuary legatees, and one of the Defendants in this case. He therefore pleaded his bankruptcy. Mr. Roots, for the Plaintiffs, insisted that the plea was bad, because the bankruptcy took place after the bill had been filed. [4] Mr. Simons, for the Defendant, replied that it was no objection to a plea that the matter pleaded had occurred after the filing of the bill; and that a release of the subject of the suit, though it was executed after the filing of the bill, might be pleaded to the bill. THE VICE-CHANCELLOR said that, where the decree sought is ad rem, and not a personal demand, the bankruptcy of the Defendant is a good plea, because all interest in the subject is transferred from the bankrupt to his assignees; and that as any matter which arises between the declaration and plea may be pleaded at law, so matters which arise between the bill and plea may be pleaded in equity. Plea allowed. [4] JAMES v. SADGROVE. Nov. 2, 4, 1822. Plea and answer. Plea to all the relief, and all the discovery, except certain interrogatories, accompanied with an answer to these interrogatories, which did not go to any material point, overruled. Aliter, if the answer had been to matter which would have repelled the defence by plea. Where there is matter charged by the bill which goes to repel the defence by plea, the plea must be supported by an answer to that matter. The bill stated that John Norman and Thomas Humphrey, deceased, were, in 1813, joint owners of a ship; that on the 2d March 1813 a settlement of accounts relating to this ship took place between them, when a balance of £521, 6s. 6d. was found due from Humphrey to Norman, and in order to pay that balance, three bills of exchange, all dated the 2d of March, were drawn upon Humphrey by Norman, and accepted by the former; the first payable two months, the second five months, and the third six months after date; that the first was paid when due, but before the second and third became due Humphrey died; that Humphrey made his will, dated the 5th of July 1813, and appointed Driver and Sadgrove [5] his executors; that on the 30th of July Sadgrove alone proved the will, and possessed the personal estate: "That when the second and third bills became due, they were presented for payment by Norman, who was informed by Sadgrove that he had no assets of the testator in his hands, and that he could not pay the bills; that Norman waited for some time in expectation that Sadgrove might possess assets to enable him to pay these two bills, but he was unable to discover that Sadgrove was in possession of such assets; and that Norman (who was master of a merchant vessel trading to foreign parts) left this country, and was chiefly in foreign parts beyond sea, until the year 1820." The bill prayed an account of the personal estate possessed by Sadgrove, and that it might be applied in a course of administration. To this bill the Defendant Sadgrove put in a plea and answer. The plea was expressed as follows: "To all the discovery and relief sought for or prayed against this Defendant, except such parts of the said bill as seek a discovery, whether," &c. It then set forth the interrogatories to those statements in the bill which are included in inverted commas; after which came the plea of the Statute of Limitations in the usual manner; and then followed an answer to the excepted interrogatories. Mr. Lovat, in support of this plea, contended that, although it was settled that a plea to relief covers the discovery, a Defendant might, if he pleased, give the discovery and plead to the relief, without overruling his plea. Hodgkin v. Longden (2 Ves. jun. 2); Todd v. Gee (17 Ves. 274 and 277). [6] A fortiori, if he expressly save to himself the right of answering a particular part of the bill he does not overrule his plea. Mr. Parker, contrà. THE VICE-CHANCELLOR [Sir John Leach]. The authorities cited do not touch the present case. Admitting that a Defendant may at his pleasure answer the whole bill, though he pleads to the relief, it does not follow from thence that he may plead to the relief and to a part of the discovery only, and at his pleasure answer the rest of the bill. Such a partial answer can serve no useful purpose; and the rule applies here, that he who submits to answer at all, must answer fully. If the statute protects the Defendant from a part of the discovery, it protects him from the whole discovery, and the partial answer overrules the plea.(1) Nov. 4. THE VICE-CHANCELLOR, referring to this case, said there were possible cases in which a plea to the relief and a part of the discovery might be supported: that if, for instance, facts were stated in a bill for the purpose of taking the case out of the Statute of Limitations, the Defendant would be bound to answer as to such facts, though he pleaded to the relief and the rest of the discovery; but that such was not the nature of the case in question.(2) [7] SUSANNAH HYDE BECKFORD v. KEMBLE AND OTHERS. Nov. 4, 1822. Jurisdiction. Injunction (on terms) granted to restrain mortgagees of a West India estate from proceeding on a bill of foreclosure in the Colonial Court, filed after a decree made in this Court, which directed an inquiry to ascertain the amount of the mortgage debt, on a bill to redeem; all parties being in this country. Query, whether the mortgagee of a Jamaica estate, on a bill of foreclosure in this Court, is entitled to a decree for sale of the estate, according to the law of the colony? (1) Blacket v. Langlands, 1 Anstr. 14, seems to have been decided on the same principle with this case, but is imperfectly reported. See also Morrison v. Turnour, 18 Ves. 175; Howard v. Duppa, 1 V. & B. 511; Bowers v. Cater, 4 Ves. 91; Bayley v. Adams, 6 Ves. 586, &c. (2) "Where a particular special promise is charged, to avoid the operation of the statute, the Defendant must deny the promise charged, by averment in the plea, as well as by answer, to support the plea." Mitf. 219, 3d edit. See Whitbread v. Brockhurst, 1 Bro. C. C. 404. See also Anon., 3 Atk. 70. The Court was moved, on behalf of the Plaintiff, for an injunction to restrain the Defendants Atkins, Mavor and Samuda from all proceedings in a suit instituted by them in the Court of Chancery in Jamaica, against the Plaintiff; and from all other proceedings in the said Court against the Plaintiff, for foreclosure and sale of the plantations and premises in question in this cause. The ground of this application was, that these Defendants had instituted the suit for foreclosure in the Colonial Court, after the decree in this cause, which directed certain accounts to be taken for the purpose of ascertaining the amount of the mortgage debts, with a view to redemption. In the month of June 1818 the Plaintiff filed her original bill in this cause, which prayed, amongst other things, that accounts might be taken in order to ascertain how much was justly due on the mortgages, and that the Plaintiff might be let in to redeem. The plantations and estates in question (which are situated in Jamaica) were, by indentures of lease, release and settlement, dated the 18th and 19th March 1768, and made on the occasion of the marriage of Nathaniel Beckford and Elizabeth his wife (the father and mother of the Plaintiff) conveyed to trustees for the term of ninety-nine years, if Nathaniel Beckford and Elizabeth his wife, should so long live, upon trust, to secure £300 a year out of the rents and profits, to the separate use of the wife; and to permit and suffer [8] Nathaniel Beckford and his assigns to receive the residue of the rents and profits for his life:-Remainder to the use of Elizabeth Beckford for life:-Remainder to the use of trustees to preserve contingent remainders :-Remainder to the use of the children of the marriage, in such shares. as N. Beckford and Elizabeth his wife, or the survivor of them, should appoint:Remainder (in default of appointment) to the use and behoof of all such children. as tenants in common in tail, and if but one child, to such only child in tail: With divers remainders over. This deed contained a proviso, by which Mr. and Mrs. Beckford were empowered, during their joint lives, to subject and make liable all the premises therein comprised, to the payment of any sums of money not exceeding the amount of the principal money due on the incumbrances then charged on and affecting the said plantations and premises, for the purpose of paying off such incumbrances, and also the further sum of £4000 sterling. The amount of the incumbrances then affecting the property was not stated in this deed. Under this power Mr. and Mrs. Beckford, by two indentures, dated the 24th of February 1769 and the 16th of June in the same year, demised these plantations for two terms of 500 years each, by way of mortgage, for securing the sums of £6000and £6700 sterling, and interest. In November 1779 they conveyed their life interest in the estates to Richard Beckford and Rice James, by [9] way of mortgage for securing the sum of £17,000 currency, and interest. In the month of July 1787 the mortgages for £6000 and £6700 having become vested in John Beckford, Richard Beckford and Rice James, these persons filed their bill in the Court of Chancery in Jamaica, against N. Beckford and Elizabeth his wife,. and also against the Plaintiff in this cause (who was then an infant), praying that an account might be taken of how much was due for principal money and interest in respect of these several mortgages, and that the same might be paid, or in default thereof that the said plantations and estates might be sold. The Court in Jamaica soon afterwards, on a petition (by the Plaintiffs there) appointed N. Beckford to be receiver of the rents and profits of the plantations, and. directed him in that capacity to pay the annuity of £300 out of the rents and profits,. to the separate use of his wife Elizabeth, and also a sum of £150 for the maintenance of Susannah Hyde Beckford (the Plaintiff in this cause), then an infant. John Beckford assigned all his interest in the mortgages to Richard Beckford and Rice James. Before May 1791 Richard Beckford and Rice James (who were co-partners in trade) conveyed all their interest in the said several mortgages for £6000, £6700 and £17,000 to trustees, for the benefit of their creditors. On the 9th May 1791 these trustees filed their supplemental bill in the Court of Chancery in Jamaica, to [10] have the benefit of the proceedings in the former suit there. Afterwards, with a view to prevent further litigation in the suit in Jamaica, it was agreed between the several parties to that suit (except the Plaintiff in this cause, then an infant) that an order should be forthwith made, by consent in the cause, to the effect after mentioned. And that, upon the passing of such order all further proceedings in the said suit should cease, except so far as they related to carrying into execution and giving effect to the said order and agreement, and such further proceedings as might be had in the said cause by the consent of the parties thereto. Pursuant to this agreement an order was made by the Court of Chancery in Jamaica, dated 28th January 1792, whereby it was directed that a new receiver should be appointed, who should pay to Nathaniel Beckford, out of the rents and profits of the plantations and estates yearly, during the joint lives of himself and Elizabeth his wife, the sum of £600 sterling, in lieu of the said annual sums of £300 and £150 theretofore paid to them. A receiver was appointed under this order, and this annual sum of £600 was paid to Nathaniel Beckford during his lifetime. The partnership between Richard Beckford and Rice James was afterwards dissolved, and on that occasion a provision was made for the debts of the partnership, and the trusts of the conveyance to the trustees for their creditors ceased. [11] In 1796 Richard Beckford died and the several mortgagees for £6000, £6700 and £17,000 became ultimately vested in the Defendants Kemble, Atkins, Mavor and Samuda, as assignees of bankrupts. In 1810 Nathaniel Beckford died, and in 1814 Elizabeth Beckford also died, without having executed any appointment under the power reserved in the deed of 19th March 1768. The Plaintiff, as the only child of the marriage, became thereupon, under the settlement of 19th March 1768, entitled to the equity of redemption. Elizabeth Beckford from the time of the death of her husband, by virtue of an order of the Court of Chancery in Jamaica, received out of the rents and profits the yearly sum of £300; and the Plaintiff a yearly sum of £150. The plantations and estates were now in the possession of Milne and Hamilton, who, as the attornies of the mortgagees had, by an order of the Court of Chancery in Jamaica, dated 29th September 1813, been appointed receivers. The mortgage for £17,000 of course ceased on the death of Elizabeth Beckford, and the several subsisting mortgages were vested in the several Defendants. The Plaintiff by this bill charged that the mortgagees for £6000 and £6700 (independent of the mortgage for £17,000) greatly exceeded the amount of the incumbrances subsisting on the plantations and estates at the time when the indenture of [12] 19th March 1768 was executed, and that the monies produced by the consignments of the produce of the estates had been misapplied. The Defendants Kemble, Atkins, Mavor and Samuda, by their answer, stated that in May 1814 the Plaintiff presented a petition to the Court of Chancery in Jamaica in the cause there, praying for an adequate annual allowance out of the rents and profits of the estates; and that by an order of that Court, dated 2d June 1814, it was directed that the annual sum of £350 sterling, in addition to the former allowance of £150, should be made to the Plaintiff out of the rents and profits; but that they (the Defendants) had appealed against this order to the King in Council. They also submitted by their answer whether the Plaintiff was entitled to prosecute this suit, so far as respected the object of the proceedings which had already taken place in Jamaica, or so far as she was entitled to relief in the suit pending in that island. On the 10th February 1821 this cause came on to be heard before the ViceChancellor, when His Honor made a decree, referring it to the Master to inquire and state to the Court what was the amount of the principal money due on the incumbrances charged on or affecting the estates in question in this cause at the date of the indenture of settlement, dated 19th March 1768; and whether any and which of such incumbrances, or any and what part thereof had been discharged; and also to inquire and state to the Court what sums of money had been charged on the |