so that the act has given to contracts registered a force and effect with respect to lands themselves, which they have not in England, there being no such clause in the English registry act; this I take to be the true meaning of the act, as far as I can collect; and it will answer all the purposes of every decision on the subject. 1803. BUSHELL V. BUSHELL. tice to all-in tents. It is true, the registry is considered as notice to a certain extent; no person thinks of purchasing an estate without searching the registry, and if he searches he has notice; but I think it cannot be considered as notice to all intents, on Mischievous to account of the mischiefs that would rise from such a deci- consider the sion. For if it is to be taken as constructive notice, it must registry as nobe taken as notice of every thing that is contained in the memorial: if the memorial contains a recital of another instrument, it is notice of that instrument; if a fact, it is notice of that fact. It strikes me to be a better and safer way of considering it, to let the words of the act operate by their own force, and that the registry shall not be taken as notice more here than it is in England, or in the colonies, where it has been uniformly held that even enrolments are not considered as notice. In consequence, I must hold that the plaintiffs in this case are entitled to have the benefit of these articles, so far as they are not affected by their own acts, and none of these six plaintiffs have done any act which can affect them. It might have been a material question, how far back the account of rents and profits should be directed. The estate was in truth the estate of the children ever since 1778; but it is stated at the bar to be useless to direct an account prior to the death of Edward, he having died insolvent. 1803. BUSHELL v. BUSHELL. Reg. Lib. xlviii. 471. The plaintiffs electing to take against the will of Edward Bushell deceased their late “father, and disclaiming all interest under the same, declare "that they are entitled to have a specific performance of the agreement mentioned in the settlement of the 16th Jan. 1755, in the pleadings mentioned, and to have the lands "of Ballyvaughan in the pleadings mentioned conveyed "to the uses expressed in such settlement, and the other six "children of the said Edward Bushell having elected to take "under his will, declare that one moiety of the said lands ought to be considered as the estate of Edward Bushell the “ younger deceased, the eldest son of the said Edward Bush"ell, and the other moiety ought to be divided between the "said plaintiffs in equal shares, but that the whole thereof is subject to the annuity of 30l. a year, provided by the said "settlement, for defendant Elizabeth Bushell their mother, "and to the rent and renewal fines reserved by the original "lease of the day of —, in the pleadings men"tioned. And plaintiffs waiving any account of the "rents and profits of said lands prior to the death of their "late brother the said Edward Bushell the elder deceased, "refer it to the master to take an account of the rents and pro"fits of said lands from the time of the death of said Edward "Bushell to the time of the receiver being appointed in the "cause of Lilly v. Bushell now depending in this court; and "let the master inquire and report by whom such rents and "profits have been from time to time received during said period, and let the master also take an account of the "sums received by the said receiver since his appointment, "and let the plaintiffs be at liberty to apply to the court in "the cause of Lilly v. Bushell, that the receiver may account "for such rents before the master in this cause, and let the "twelfth part of the clear rents and profits after paying the "said annuity of 30%. the rents reserved by the original lease, renewal fines and all other reasonable allowances be "carried to the account of each of the plaintiffs, and let the "master take an account of all sums of money which since "the death of their said late brother Edward Bushell have "been received by the respective plaintiffs, or with which 66 they shall respectively appear to be chargeable on account "of their demands against the said estates, and let all such sums be set against the respective shares of the plaintiffs of "said rents and profits, and let the master state balances; and "let the master also inquire whether any and what sums "have been from time to time advanced by the defendants "for the maintenance and education of the respective plain"tiffs and let there be a partition of said lands, and let a "commission issue in the usual manner, and one twelfth part "be allowed to each of the plaintiffs, and six twelfth parts "or one moiety to the person claiming under the said Ed"ward Bushell the son, subject to the said annuity of 301. "rents and renewal fines; and let the master inquire and 66 report in whom the legal estate in said lands is now vested, "and let it be referred to the master to approve of a proper 66 person to be appointed a trustee of the legal estate for the "benefit of all parties interested therein, and let the person "in whom such legal estate shall appear vested, convey the same to such person as the master shall appoint, in trust "for the several parties entitled as aforesaid.” 1803. BUSHELL V. BUSHELL 1803. Feb. 11. Where a testa. mentary guardian has not acted, the mode O'KEEFFE v. CASEY. THIS was a bill filed to remove testamentary guardians, and to appoint a third person guardian. It was not alleged of proceeding that the guardians had misconducted themselves; but that in order to have a guardi. they had declined acting. an appointed, is by petition; it is not necessary to file a bill. Secus, if after acting, he has misconducted himself. Lord CHANCellor. It was not necessary to file a bill for this purpose: where a testamentary guardian has once taken the trust upon him and acted as guardian, if it is sought to remove him for misconduct, a bill must be filed; but not where he declined to act; for that is as if there had been no appointment of him as guardian. In such case you should move upon petition to appoint a guardian.(a) (a) Vid. Ex parte Salter, 3 Bro. C. C. 500. 66 EXECUTORS OF FERGUS v. GORE. 1803. Feb. 11. A. covenants to indemnify lands settled on B. from certain debts, the interest of which Bis afterwards obliged to pay : B. is entitled under the cove THIS bill was filed by the plaintiff's testatrix on behalf of herself and other creditors having charges affecting the estate of the late Earl of Arran, for payment of three several sums for which judgments had been confessed by the late Earl of Arran in 1768. On the 24th Feb. 1795, a decree was pronounced, whereby it was referred to the master to take an account of the real and personal estate nant to come against the "of the late Earl of Arran, how applied, and so forth, and estate of A. for also an account of what was due to the plaintiff on the "foot of the judgments in the pleadings mentioned, and "also to take an account of the debts and incumbrances afแ fecting the said estates, distinguishing between those which "affected the settled and the unsettled estates, respectively; "and that all creditors should be at liberty to come in," with other usual directions. The master reported, that in 1760 the late Earl of Arran, being seized of several estates in fee and of some leasehold interests for lives, executed a settlement upon the marriage of his eldest son (the present Earl of Arran) whereby a part of these estates was settled on the present Earl for life, with remainders in the usual course of family settlements, and in this deed was contained a covenant on the part of the late Earl," that all the lands and premises thereby settled should "be fully and clearly acquitted and discharged, and that "the present Earl and all other persons to whom the said "estates were by said deed limited should by him well "and sufficiently saved, kept harmless and indemnified of, "from and against all charges and incumbrances whatso the sums so interest there Where lands are devised in trust for payment of debts, the statute of limitations runs not after death of testator against debts thereby at his not barred death. |