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1803.

LATOUCHE

V.

Ld. DUNSA

NY.

V.

LATOUCHE.

receipt of the rents of said lands on the 18th day of Feb. 1777, and about the same time David Latouche (one of the plaintiffs in the original cause) obtained two grants in custodiam of said lands for satisfaction of two judgments conLd. DUNSANY fessed by Warren, one of Mich. 1773, and the other of Trin. 1776; Mr. Latouche on the 7th of February 1778, took an assignment of Mrs. Trant's judgment and custodiam, and as assignee of Mrs Trant's custodiam and on the foot of his own custodiams entered into possession and receipt of the rents of said lands and continued therein until the year 1799, when a receiver was appointed by the court. All the assignments taken by Mr. D. Latouche were in trust for himself and Messrs. John and Peter Latouche, his co-plaintiffs in the original cause.

From the time of Messrs. Latouche getting into possession until the year 1782, the house and demesne of Courtduffe and the lands of Castleknock were let from theee years to three years by the court of Exchequer under the custodiams, and together produced a rent of 4231. per annum: the rest of Mr. Warren's estate produced about 1,100l. per annum. In Feb. 1782, the lands of Castleknock being out of lease were advertised to be let by the court of Exchequer under Mr. Latouche's custodiams, and Wm. Grier was declared tenant for three years in trust for Mr. Latouche at 250l. per annum ; but Mr. John Chamley, who was attorney for Mr. Warren, having procured the consent of Mr. Warren, and of Mr. O'Brien, attorney for Mr. Latouche, the former setting was waived, and Chamley declared tenant for said lands for three. years at 2401. per ann. rent; and on 16th Nov. 1782, Warren executed to Chamley a lease of said lands for three lives. renewable for ever, at the same rent. Chamley also prevailed on Warren, in 1785, to execute to him a lease of the house

and demesne of Courtduffe for a term of 999 years at a rent of 135%. which was the same rent for which they had been let to Chamley for three years by the court of Exchequer. In 1783 and 1785 he procured from Warren, from Latouche, and from Christopher Abbott, assignee of Fitzwilliam's mortgage, confirmations of the said two leases, and Warren being in distress and in the power of Chamley, the latter procured from him various confirmations and acknowledgments that the leases were not held in trust for him.

Between 1771 and 1783, some judgment debts of Warren's were paid off, or very considerable sums paid on account thereof; amongst these were a judgment obtained by Luke Savage, and also one which had been obtained against Warren as security for a Mr. Palles; of these judgments which were wholly or in part discharged, assignments were procured by Chamley as a trustee for Warren, and no satisfaction was entered on them; so that on record they appeared wholly unsatisfied. In 1786 the Messrs. Latouche became pressing for a mortgage for better securing the amount of their three judgments and custodiams, on the foot of which they then claimed a sum of 7,6031. 11s. 7d. as due to them: a negotiation for this purpose was set on foot between Mr. O'Brien, the agent of the Messrs. Latouche, and Mr. Chamley the agent for Mr. Warren; and it was agreed upon, that a mortgage should be executed to the Messrs. Latouche, provided they agreed to advance the amount of Savage's and the other judgments which had been either wholly or in part paid off, but which were represented to them as unsatisfied judgments, and it was proposed to them to include in the mortgage the sum so to be advanced on the foot of these judgments. The Messrs. Latouche agreed to this, and accordingly they took assignments of these different judgments, in all of which Mr.

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1803.

LATOUCHE

V.

Ld. DUNSA

NY.

V.

LATOUCHE.

Warren joined, and advanced upon these assignments the sums appearing on record to be due on these several judgments and for the amount, which was about 4,000l. together with the amount of their former judgments and custodiLd.DUNSANY ams, Mr. Warren executed to them a mortgage on the 9th Nov. 1786 of all said lands for a sum of 13,908/. 8s. By a covenant in this deed it was provided that the acceptance of the mortgage shoud not prejudice the Latouche's custodiams or their priority under the same; but that they should still continue their possession as custodees only until the amount of the custodiams was discharged, and then that possession should be retained by them as mortgagees. In 1789 Messrs. Latouche procured an assignment of Fitzwilliam's mortgage, and in the year 1790 they took an assignment of Cary's mortgage.

On the 8th December 1792, Messrs. Latouche filed their bill against Warren, Lord Dunsany, and others; stating Fitzwilliam's mortgage and the assignment to them, the subsequent judgments assigned to them, and the mortgage of 9th Nov. 1786, and insisting on their rights to tack this mortgage to Fitzwilliam's. Warren answered; Lord Dunsany suffered a decree of sequestration to be had against him.

On the 27th February 1795, a decree to an account was pronounced, and Lord Dunsany went before the master to prove his debts, but the master having reported Messrs. Latouche prior creditors, (on the principle of tacking insisted on in their bill) to an amount likely to swallow up the whole fund, Lord Dunsany took exceptions; which exceptions having been over-ruled by Lord CLARE on the ground that it was not competent to Lord Dunsany to except to the report, there being a decree upon sequestration against him; his lordship

1803.

LATOUCHI

7.

Ld. DUNSA

NY.

Ld. DUNSANY

V.

together with Mary Anne Lawless and Henry Farrell in 1799 filed a cross bill, insisting that the Latouches ought to accouut for the whole value of the lands let to Chamley, or at all events for what the estate was let at subject to his lease, alleging that the master had not charged the Latouches with several sums which either negligently or collusively they suf- LATOUCHE. fered Warren and Chamley to receive, and praying that the mortgage of the 9th of November 1786, might be set out of the way of the other creditors, or stand as a security for such balance only as should appear to have been due to Messrs. Latouche on that day on the foot of the incumbrances theretofore vested in them, and praying an account of the receipts of Messrs. Latouche while in possession as assignees of Mrs. Trant's custodiam, and of what was due to them upon the several judgments recited in the bill, and that whatever sums they had or without wilful default might have received over and above the debts for which said custodiams were obtained, might be applied in discharge of the debts affecting the estate of said John Warren according to priority, and that an account might be taken of the several sums received from the tenants of Warren by Chamley, (as against whom this was an original bill) and of the judgments against Warren of which Chamley had become assignee, and of the consideration of any bonds, or other securities which he obtained from Warren, and that all his bills of costs against Warren should be taxed, and the acquittances and confirmations executed by Warren to him should be set aside, and that the lease of 16th Nov. 1782, made to Chamley of the lands of Castleknock might be declared a trust for Warren, or declared fraudulent and void, and that accounts might be taken of what Chamley made or without wilful default might have made of Castleknock and Courtduffe, and that whatever sum he should appear to be indebted might be applied in payment of the creditors of Warren. It

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1803.

LATOUCHE

V.

Ld. DUNSA-
NY.

υ.

LATOUCHE.

charged that several of the judgments assigned by Chamley to Latouche were either wholly or in part satisfied at the time of such assignment, and it therefore prayed that these judgments should as against the other creditors of Warren only Ld.DUNSANY stand as a security for so much as was really due on the same, and that the master might ascertain what judgments affecting Warren's estate, and then vested in Latouche were for the proper debts of Palles, and that Latouche might be restrained from recovering the same out of Warren's estate, till they had procured a sale of Palles's estate, and likewise praying an account of the sums due on the judgments obtained by the Messrs. Latouche which were included in the mortgage of Nov. 1786, and that the estates of Warren should be sold discharged of the said leases, and that all proper accounts should be directed.

Messrs. Latouche by their answer insisted on the agreement of the 9th Nov. 1786, between Warren and defendant David Latouche, in trust for himself and the other defendants; that their custodiam debts were not discharged until 1797, and that they have ever since considered themselves in possession as mortgagees; that the plaintiffs were not entitled to charge them with the defaults of Warren, his other creditors or tenants, nor to claim credit except for the sums which they had actually received during the continuance of their custodiams; that being purchasers for valuable consideration of the original mortgage of 1743, by which the legal estate was vested in them, and having a right to tack to it all the subsequently assigned securities, they were thereby creditors to nearly the amount of the value of the estate; and therefore, and because at or previous to the time of obtaining such assignments they had no notice of the incumbrances claimed by the plaintiffs, or of any

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