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V.

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V.

As to the lease: it never can in its origin be considered as 1803. a bona fide lease ; it was evidently intended to convey a bene- LATOUCHE fit for Warren and to preserve it against his other creditors,

Ld. Dunsaand though the release is some evidence of having paid the alleged consideration, that was manifestly an under-value, Ld.DUNS ANY and Warren was during all that time in Chamley's power: LATOU CHE, he does not appear to have consulted any other professional man. Under all these circumstances this lease should not be set up to the prejudice of Warren's creditors ; not even

ose who claim as volunteers. And it is not necessary for the heir at law or personal representative, to institute a suit to set it aside: if set aside as fraudulent, and not merely voluntary, it is set aside in toto. The heir can have no benefits except in case there should he a residue after payment of the debts, and it would be unreasonable to put him to file, a bill at a great expense, when perhaps he might derive no benefit from it ; it would tend to an useless multiplication of suits. The creditors have a right to have the lease set aside as a fraud on Warren himself; bat as Chamley has let leases, it must be set aside so as not to affect them or make Chamley chargeable on account of them. The tenants under those leases are not before the court, and if they were, they probably would not be affected by any fraud of Chamley; so that he must account only at the rents reserved on those leases.

The decree directed that “the master should review - the whole of his report in the original cause, and in " the second cause declared that upon the ground of the " affidavit of the defendants John and Peter Latouche, " made to oppose the application in these causes for a “receiver, and of the answer of the defendants David, John " and Peter in the second cause, and of the proceeding in " this court in the case of Cary against Warren and others, 6 and of the order made by the court of Exchequer on the

V.

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1803. « 16th of May 1777, upon the said Cary's shewing cause LATOUCHE

against the order obtained by the said Susunnah Trant on

" the 18th of Feb. 1777 for the tenants of the estates of the Ld. DUNSA

“ said yohn Warren to pay to their rents to the said Susannah Ld.DUNS ANY “ Trant as custodee, and of the general conduct of the deLATOUCHE.

“ fendants David, Fohn and Peter Latouche respecting the “ said estates, the said defendants claiming the benefit of the “ assignment made by said Susunnah Trant to the defendant David Latouche of the judgment obtained by James Trant “ deceased against said John Warren in Hil. 1771, and of “ the grant in custodiam thereupon to the said Susannah, and “ also claiming the benefit of the two several judgments “ obtained by the said David Latouche against the said John Warren respectively in Mich. 1773, and Trin. 1776, and " of the grants in custodiam made thereupon to the said David Latouche, the said defendants ought to be taken as hav“ing been in possession of the estates of the said John War

ren as custodees by themselves and the said Susunnah * Trant, from the time the said Susannah obtained posses" sion of said estates under the order of the 18th Feb. 1777, “ until the said judgment debts would have been satisfied

according to their priorities by a due application of the rents " and profits of the said estates in the order and manner in 6 which the same ought to have been applied :--And the

master was directed to take an account of what was due to “ Susannah Trant at the time of the assignment made by her, " and of the rent and profits which accrued after she obtained s possession, and that so much thereof as was received by her

or without her wilful default might have been received " should be applied in discharge first of the costs and interest b6 and then in reduction of the principal of said debt: And " the master was directed to take an account of the rents " and profits which remained in arrear at the time of the as

signment and which afterwards accrued until the receiver

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was appointed, and that the Latouches should be charged 1803. " with so much of said rents as without their wilful default

LATOUCHE “they might have received as custodees or as mortgagees,

LA. DUNSA (the rents of Courtduffe and Castleknock reserved in the “ leases to Chamley being taken as the rents which ought to Ld.DUNSANY “ have been received) and that the rents with which the LATORCHE. Latouches should appear to be so chargeable, should be ap“plied in the first place in payment of the remainder of “what should appear due to Susannah Trant, and then in

payment first of the costs and interests and then of the prin

cipal of the judgment debt of Mich. 1773 ; and that judg“ ment being admitted to have been obtained as a secu“rity only for a promissory note for 1,800l. and interest, " the master was ordered to take an account of what was

really due for principal and interest of said note and costs “ of said judgment, and after payment thereof, then that “the rents and profits aforesaid should be applied in pay“ment of the judgment of Trin. 1776 : And that the mas“ ter should inquire what was originally due for principal " and interest on such judgments, and should take an ac

count of what was due for principal, interest and costs " thereon at the time said judgment of Mich. 1773 should

appear to have been satisfied, and what should remain of
“ such rents and profits to be applied accordingly. And
" after payment of said three several custodiam dehts, it was
“ further ordered and declared, that according to the answers
" of the defendants, the Latouches, in the second cause, they

ought to be taken as in possession in the character of mort-
gagees; and that the remainder of what they should be
chargeable with, should be applied first in discharge of the

mortgage of October 1743, assigned to them by C. Abbott,
“then in payment of the several judgments prior to the mort-

gage to Cary, of which the said defendants obtained assign-
ments, according to the respective priorities of such incum-

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1803. “ brances, and lastly in payment of said mortgage to Cary; LATOUCHE

" but the debt due on the judgment obtained by Savage to

“ be subject to the inquiry thereafter directed: And it was Ld. DUNSA

“ declared, that after payment to the Latouches of such Ld. DunSANY debts, they were not entitled to any lien on the said esLATOUCHE.

tates by virtue of the mortgage of 9th November 1786, to " the prejudice of other incumbrancers. And the master was “ further ordered to take an account of the several other " debts of said Warren which were liens on his said estates, 6 and that the creditors should have liberty to come in and

prove the same, the master publishing an advertisement “ for that purpose : And an account of what was due to " the defendants Latouches by virtue of the mortgage " of the 9th November 1786, so far as the same should “ appear not to be satisfied by the application of the rents

and profits before directed, and subject to the right of

the other mortgagees whose deeds have been duly regis“ tered, and also subject to the inquiries thereafter direct" ed respecting the judgments assigned to or in trust for the “ said defendants Latouches by Warren and Chamley. And “ with respect to the judgment obtained by Savage, it ap

pearing to have been satisfied before the assignment there“ of to Chamley, who paid no consideration for the same, " and consented to indemnify the executors of Savage in

respect thereof, such assignment was declared to be a " fraud on the creditors of Warren, and ought not to charge “ his estate to their prejudice, and that the Latouches ought

to be deemed to have had notice that the same was sa“tisfied before the assignment thereof to them, and that “ it ought not to be considered as any security to them for

money advanced by them to Chamley or Warren, but that " they are entitled to be satisfied by Chamley the money

paid by them on said assignment, and accordingly an account was directed of what was due to them in respect

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“ thereof, the same to be paid by Chamley. It was further 1803. “ declared that the judgments obtained against Warren and

LATOUCHE “ given to Chamley and his trustee as securities for the

Ld. Dunsa“ debts of Palles were fraudulently assigned by Chamley " and his trustee to or in trust for the Latouches, and Ld. DunsANY ought not to be deemed a lien on Warren's estates to the

LATOUCHE. prejudice of his other creditors, unless the estate of Palles should appear to be insufficient, but that the Latouches

are entitled to the judgment obtained against Palles as a “ security for their demands; and they were ordered to pro"ceed to recover the same, reserving the question how far

Chamley might be personally responsible to the creditors of Warren for any charge that might eventually fall on his “ estate in respect thereof. It appearing that a judgment “ confessed by Warren to Parvisol, in 1773 and assigned " to the Latouches, was a security only for a smaller sum, " and redeemable by Parvisol; the master was directed to

inquire into, and state the real circumstances. The mas"ter was further ordered to inquire into, and state the real “ consideration of the mortgage of 9th Nov. 1786' with all “ circumstances relating thereto, and how far the same “ would remain unpaid after payment of the several debts, “ &c. therein before provided for. And it was further de

clared that the leases of Castleknock and Courtduffe were “ obtained by Chamley fraudulently and with a purpose of “ defeating the just creditors of Warren, and in trust for “Warren; and that the releases obtained by Chamley from “ Warren in 1794 were fraudulently obtained without just “consideration ; but it was declared that the under-leases " made by Chamley bonâ fide ought not to be disturbed : “ And the master was directed to take an account of the "rents received by Chamley or which without his wilful de“ fault he might have received out of the said lands, until “ the surrender of the lease of Courtduffe, and the appoint

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