lent proceeding; and they insisted that in taking any account of what he was entitled to under these charges, he should account for the rents and profits of the estate as mortgagee. Mr. Hort then does not proceed in this cause; he does not attempt to enforce payment of the interest, though other persons entitled to parts of the same charge were obtaining their interest; and the reason why he could not obtain an order for the payment of interest must have been, that the answer insisted he was accountable for the rents and profits as mortgagee. Under these circumstances, it does appear to me that during the possession of F. G. Hort, he, by not proceeding in the cause and enforcing the payment of interest from the receiver of the Castle Fordan estate, acknowledged that there were matters of account depending; and that acknowledgment appears to me to have lasted down to his death, which happened in 1786...

In 1761, Sir Thomas Giffard died, and in 1763, a bill was filed by Sir Duke Giffard, the succeeding tenant for life, and his son, the late Sir Duke, then a minor for the purpose of setting aside the proceedings in the court of Exchequer and for a redemption. That bill was amended in 1764, and from thence there were no proceedings in the cause. But though there were no proceedings on the part of the plaintiff, there were none on the part of the defendant neither: the Hort family did not attempt to dismiss that bill nor to proceed in their cause in Chancery. Now, it is impossible to account for this, but upon the ground that they conceived it more beneficial to themselves to suffer the matter to sleep; as was likely to be the case, considering the situation of Sir Duke Giffard as tenant for life; who, if the rights of all the parties were attended to, would have had to pay a large arrear of interest on the two charges of 6001. cách under the settlement of 1696, and could have got only the surplus rents of the estates in mortgage. But both suits

1804.

GIFFARD

V.

HORT.

1804.

GIFFARD

V.

HORT.

were depending, and the pendency of those suits kept the rights open, and how it could be said that there was laches 1on one side which did not apply to the other, I cannot conceive. If the laches of the Hort family did not preclude their receiving the two charges of 600% which it did not, it is difficult to see how the laches of the Giffard family (especially in the capacity of tenant for life in which Sir Duke Giffard stood) should prevail against them. to tarins Rap Age Nazu in mo..

In 1798 Sir Duke Giffard died, and in 1799 the last Sir Duke Giffard filed his bill of revivor and amendment: in that bill he particularly introduced a charge, that his father, Sir Duke, senior, was a distressed man, and that the archbishop having obtained an assignment of these two charges of 600l. each, Sir Duke had permitted the archbishop and those claiming under him to receive the rents and profits of the mortgaged lands during his life. Now, that charge in the bill in the Exchequer does not put in issue the proceedings in Chancery, but it puts in issue the fact of the bill in Chancery, and that the rents and profits of the mortgaged estate were considered by the Giffard family as received by the archbichop for the payment of those two sums, as well as of the mortgage: and that is the result of the proceedings in Chancery: for when the Giffards objected to the receiver paying interest on these two sums to the archbishop, and when the reason, why the archbishop did not receive the interest on these two sums when other persons did receive their interest, is now acknowledged, it is a demonstration that on both sides, with something of objection, there was an open account subsisting between the parties, and the lapse of time ought not therefore to affect either.t

Sir Duke, the son, died in 1801, and a bill of revivor was filed by his son Sir Thomas; the cause had been brought to an hearing in the court of Exchequer in the life-time of Instub sex

Sir Duke but before the decree he died. On the final
hearing in December, 1801, the bill was dismissed, on this
ground, as I apprehend, that the minor came too late for
redemption. Now, (besides the circumstances which I have..
stated, which appear to me fully to account for the delay,
the rights of the parties being as it were in suspense, and
the mutual accounts between the parties preventing the
effect of the lapse of time) there is a fact which seems to
me of itself sufficient to have prevented that lapse of time.
being objected to Sir Thomas Giffard the minor. Certainly
the suit was instituted in 1763: the archbishop had filed a
bill in 1750, acknowledging his title to be good only as a
mortgage title: then from 1763, the suit was depending
down to the final dismission. Though there were no inter-
mediate steps, yet it never was dismissed; and I take it to
be the duty of a court of equity, without some good rea-
son to the contrary, to attend to that circumstance. Be
cause, what is the case of an application to dismiss a bill?
it is, to borrow the expression which I think Lord HARD-
WICKE uses, "to rouse the sleeping lion;" the party is
afraid, and therefore does not apply to dismiss it, and
if he does not apply to dismiss it, the bill is pending.
This suit was not abated; it had suffered nothing; for
Sir Duke the son of Sir Thomas was a party, and as to
him it was unquestionably a suit depending from 1763;;
and if the ground on which the court of Exchequer de-
cided, was, that the lapse of time prevented redemption,
Sir Duke's bill in 1799, ought to have been demurred to;
it never ought to have been put on the file. If the interval
between 1764 and 1799 was sufficient to prevent the court
from taking up that suit and giving it effect as from 1763,
a demurrer would have lain : yet would any person have
thought of [demurring to that bill? I take it that when
there is a suit pending and not abated, (if it is abated, that
is a different thing) but remaining in such a situation that
the defendant may at any time apply to dismiss the bill, if

7

E

1804.

GIFFARD

บ.

HORT.

:

he thinks fit, he has no right to say that the suit shall not be considered to have pendency from the beginning, if he does not proceed to dismiss it. I must confess therefore that if I had been to decide upon that suit in the Exchequer, I should have held that the lapse of time did not reach it; and I see no good ground for a court of equity to hold that it did for the whole transaction was fraudulent. And though, where no steps are taken to investigate a fraud by the persons interested, lapse of time will be held a ground for not permitting a question to be raised, yet that does not apply to a case of this description when the suit was instituted at a time when the matter was capable of investigation, and when on the ground of this very fraud a successful resistance had been made in the mean time to another claim of the archbishop: for the two tenants for life had successfully kept him out from receiving the interest on the two charges of 6001. by insisting that he and his family were accountable for the rents and profits of these lands. I should therefore have held that the plaintiff was entitled to be put in the situation he ought to be in; and, inasmuch as the estates in mortgage never had been applied to pay the mortgage, that they ought to be so applied; that the mortgaged estates, being made subject to the charges on the Castle Fordan estate, should be sold to pay the principal due on that mortgage, and the interest accruing due after the accruing of his title; and to relieve the Castle Fordan estate, by paying the principal sum of those two charges of 600%. and the interest accruing due after the accruing of his title. He would have no right to call back the rents and profits beyond the accruing of his title, because in conscience that was not his right: his right was to have his estate tail incumbered to no greater extent than the settlement of 1739 intended. If that dismission in the Exchequer had been out of the way, there would have been no doubt on my mind that that ought to have been my determination; and that the Hardwood estate should have been conveyed to

the uses of the settlement of 1739; for as to that estate, the archbishop took it with notice that it was to be con veyed to those uses, and that the other estates were to be sold for the purpose of paying off the charges on them and of relieving the Castle Jordan estate.

1804. GIFFARD

V.

HORT.

However, it is objected to me that this decree in the Exchequer, dismissing the bill upon the merits,(a) is a bar to the claim of the plaintiff ; and I must confess the strong impression upon my mind is, that it is a bar(b) and I Decree against think it would be mischievous in the extreme to hold other- a tenant in tail shall bind a remainder-man.

(a) From a note of what passed in the court of Exchequer, with which we have been favoured, it appears that the only questions debated, were, whether the archbishop was complete purchaser, or only assignee of the mortgage: and whether the length of time barred the then plaintiff, whose title did not accrue till 1798. The ef fect of the frauds which were practised, or of the claim of the Hort family to the charges of 600l. and the proceedings in respect of them, as producing matter of account, and so keeping open the redemp tion, do not appear to have been discussed at the bar or on the bench. The court decided that the archbishop was not complete purchaser, and was only to be considered as having entered as mortgagee. But although they considered the bill filed in 1798, as a continuation of the suit commenced in 1763, yet as no steps had been taken in that cause for so long an interval, (particularly for a space of twenty-five years, from the time of the then plaintiff coming of age, in 1774) during which time the Hort family were in possession, acting upon the estate as absolute owners, and did not appear in any instance to have treated it as a pledge; the court held that the equity of redemption was barred. They also held that the then plaintiff being only remainder-man during that time, made no difference; that he might in that capacity have proceeded to enforce a redemption, or to have a receiver put upon the tenant for life, to keep down the interest; and that this differed it from the cases at law upon the statute of limitations, where the only mode to avoid the statute is by an entry, which the remainder-man cannot make during the life of the tenant for life. (6) Vid. Lloyd v. Johnes, 9 Ves. jun. 37.