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1803.

LARGAN

V. BOWEN

not until then obliged to relinquish his proceedings at law; Rush v. Higgs, 4 Ves. jun. 638: therefore Doran may still proceed at law, and if so, it is not matter of course, but discretionary in the court to let him in here ; and under the circumstances the court will not think him an object of favour ; especially as the estate is so ample that Doran stands in no need of a receiver to secure him.

Lord CHANCELLOR.

It is much more important to attend to the general administration of justice in this court, than to the interests of any particular parties; the claims of Mr. Doran and Mr. Hovenden may possibly be liable to very great objections ; and with respect to what is stated against them I shall direct inquiry. But here they were made parties as having incumbrances (though I do not much advert to that circumstance) : Suppose they were creditors; If they were creditors who had lain by and not proceeded in the suit at all, and that a receiver had been appointed and the property taken out of the hands of the tenants for life ; I should think it would be justice to such creditors, (though I might compel them to file a new bill) to put them as far as I could in the same situation as if they had not been depending on the faith of these proceedings ; that is, not to discharge the receiver, and to give them leave to file a bill which should be taken as a bill filed in 1798. (It was stated at the bar that a bill had been filed by Hartpole in his life-time to impeach Doran's demand, which had abated by his death.) Then I can direct that Doran shall consent that that bill shall be taken as revived, and then the whole case will be before the Master. It is very necessary that good faith should be kept in the prosecution of proceedings of this nature, otherwise estates would be ruined by a multiplicity of suits; this is the principle on which the court

1803.

LARGAN

V. BOWEN,

allows persons having charges on estates to file bills for their own benefit and the benefit of other creditors. Now, in this case Doran was made a party, which admitted that he had a charge on the estate ; and then this suit, (the effect of which if prosecuted would have been to bring forward his claims without further bill being filed) is settled by agreement among the other parties, so that he is to be put out of court: it would be highly mischievous to permit this. This will filed in 1798 remains ineffectual in 1803 ; this alone is a strong circumstance for continuing the receiver ; because the persons who have the estates subject to these charges, have no right to enjoy them; their enjoyment is unconscientious until these demands are satisfied.

The case in 4 Ves. jun. was one of a different description from the present. There the creditor brougl.t an action at law against the executor; if he could prosecute that action with effect and become a judgment creditor before the decree, he would have a priority against the personal assets, which priority the court would not allow him to obtain after the decree. Courts of equity will not restrain proceedings of creditors at law against executors to obtain payment of debts merely on a bill filed by other creditors to carry the trusts of the will into execution, until there is a decree: but from the moment of the decree the court proceeds on the ground that the decree is a judgment in favour of all the creditors, and that all ought to be paid according to their priorities as they then stand(a); and that the court cannot execute its own decree if it permits courts of law to alter the course of payment.(6)

(a) Vid. acc. Wortley v. Birkhead, 2 Ves. 571.

(d) Vid. Morrice v. Bank of England, Cas. Temp. Talb.217; Mar. tin v. Martin, 1 Ves. 211 ; Brooks v. Reynolds, 1 Bro. C. C. 183; Goate v. Fryer, 3 Bro. C. C. 23; Hardcastle v. Chettle, 4 Bro. Ç C. 163.

1803.

LARGAN

Rower.

Discharge said order so far as same respects said sum “ for money being paid out to said defendants, and refuse “ said defendants' motion for discharging said receiver, and " let the said defendants and the said E. Doran forth“ with go before the master, and let the master inquire " and report whether defendants Doran and Hovenden

have, and whether either and which of them has any, " and what claims on the estates of said George Hartpole, “ deceased, either in right of the charge claimed by de“ fendant Hovenden, or in his the said Doran's own right; “ in taking which said account let the suit heretofore in“ stituted in the year 1798, by G. Hartpole against said E. Doran, be considered as if fully revived, said E. Doran

to be under the terms of admitting same so to be, and “ also to be under the terms of producing all deeds, papers, “ evidences and books of accounts which he may have in “ his hands, power, or custody, relating to his said claims as “ the said master shall see fit. This order to be without

prejudice to said defendants proposing security for the

approbation of the master, in order to found a motion “ for discharging said receiver: and let the remainder of " the motion stand over until the report shall be had.”

Reg. Lib. (Mot.) lxxvii. 238.

END OF THE SITTINGS AFTER MICHAELMAS TERM, 1803.

1804.

HILARY TERM, 1804.

IN THE MATTER OF THE DUCHESS OF
CHANDOIS, A LUNATIC.

Jan. 23. An inquisition taken in England under a commission Inquisition

taken in Eng. of lunacy issued there, finding a person non compos, is not land not suffi.

cient to found a sufficient foundation for a grant of lands belonging to the

grant of lands lunatic in Ireland. There must be an inquisition and find- in Ireland. ing under the authority of the great seal in Ireland for that purpose.

ANDERSON 0. DWYER.

Feb. 10. Interest on the

arrear of an WILLIAM ALEXANDER ENGLISH by his will, queathed to a dated 23d of April, 1794, devised to the defendant all married wohis property in lands, and all other his property of what sole and sepa

man for her kind or nature soever, “ In trust to pay his dearly beloved rate use, not

given, though “ sister, Lady Helen Meredyth, the annual sum of 600l. the fund was “ for her sole and separate use, and not to be subject in any and though

productive, manner to the controul of her husband; to be paid and there was a payable during her life by equal half-yearly payments.” Nor is such

large residuum, Testator died in May, 1794. Lady Meredyth died on the annuity ile

: 7th of Oct. 1796, and it appeared that no payments had Secus, Sembl.

if it had been given as a peu parate maintenance.

1

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been made on the foot of the annuity during Lady Mi'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. 359; 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 HARDWICKE says, “ There is no certain rule of " the court for giving of interest on the arrears of an an“ 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 ar.nuity for 28 years (from the time of the confirmation of the Master's report) in favour of the representative of an annuitant. 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

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