v.

BATEMAN.

MAITLAND property, not merely income, came to the Admiral, they were then to bring the covenant into action, and attach this property; and they ought to suffer personally only for such a default as this. Again, there are letters from Mrs. Maitland to her brother, urging him to authorize the payment of the whole of the income-that is, *Mrs. Maitland at one time presses the trustee in the strongest manner to do a particular thing, and then at another takes proceedings against him for having done it. A married woman may be guilty of fraud.

[ *275 ]

(K. BRUCE, V.-C., in the course of the argument said, that the defendant might assume that Mrs. Maitland was during the whole time pressing the trustee to pay the income. No attention could be paid to the letters of a married woman not having separate property.)

Mr. Temple and Mr. Stinton, for the other parties.

KNIGHT BRUCE, V.-C.:

The case is so hard, that I cannot but feel considerable satisfaction that the report is confirmed in such a shape, and not in one more unfavourable to Mr. Bateman. Lord COTTENHAM'S decree, by which I am bound in form and substance, makes the question turn on the ability of the debtor. The Master has found that he was of ability to pay this sum of 4,2001. The report has been confirmed. If excepted to, I must have confirmed it on these materials. I am very sorry to be obliged to make the decree, but I have no doubt on the law.

Order That the 4,2001. be paid into Court, and remain there until the determination of the cross suit, and until it has been decided whether there is anything arising from the estate of Admiral Maitland.

1844. March 25.

SHADWELL,
V.-C.
[303]

[ *304 ]

ARKWRIGHT v. GRYLES.
(13 L. J. Ch. 303–304.)

Where a transfer is about to be made of stock to wrong persons through mistake, the Court will not grant an injunction ex parte, against the defendants, to restrain the transfer, unless the plaintiff swears that he believes the defendant will avail himself of the error, and will refuse to make a re-transfer.

MR. COOPER moved ex parte, on behalf of the plaintiffs, who were the executors of the late Mr. Arkwright, for an injunction to

restrain the transfer into the names of the defendants of a sum of about 20,000l. Consols, which was about to be made to them, under a misapprehension that they were the proper trustees of the fund.

The VICE-CHANCELLOR said, the only question was, whether such an order could be made ex parte, and asked whether the plaintiffs would swear that there was any apprehension the defendants would refuse to make a re-transfer of the fund when called upon.

Mr. Cooper thought the plaintiffs would not make such an affidavit.

The VICE-CHANCELLOR said, if that were so, he could not make the order ex parte. He remembered a case of the sort in the time of Sir ANTHONY HART, who held, that notice of such a motion ought to be given to the defendants, unless the plaintiffs were ready to swear that the defendants intended to avail themselves of the error by selling out the stock. The proper way would be, for the motion to stand over, that notice might be given to the defendants, who would, no doubt, do what was right.

ARKWRIGHT

r.

GRYLES.

REED v. FREER.

(13 L. J. Ch. 417-418; S. C. 8 Jur. 704.)

A suit was instituted to administer the estate of a testator, who had appointed A., B., and C. his executors; and a decree was made therein. After the decree A., B., and C. lent money, forming part of the estate of their testator, to N. on mortgage, N. not having any notice at the time of their character of executors, or of any suit, or any decree affecting the money. After the mortgage, the title-deeds of the mortgaged estates were, in pursuance of an order made in the suit, deposited in the Master's office. N. paid off the mortgage debt: Held, that N. was entitled to be paid, by the mortgagees, the costs attending the getting of the title-deeds out of the Master's office.

THIS was a suit to administer the estate of a testator, who had left Freer, Cooper, and Hallam his executors; and in February, 1839, the ordinary decree was made.

In October, 1840, Richard Newman mortgaged an estate to Freer, Cooper, and Hallam, in consideration of a sum of money, which formed part of their testator's estate; and the title-deeds belonging to the mortgaged property were delivered to them. The

1844.

July 23.

KNIGHT

BRUCE, V.-C.

[ 417 ]

REED

V.

FREER.

[ *418 ]

mortgagees were not described as executors in the mortgage deed, nor did this deed take any notice of the will of the testator or the suit.

By an order, dated in August, 1842, made in the suit, Freer, Cooper, and Hallam were ordered to leave all the deeds and documents *relating to their testator's estate (including the deeds relating to the mortgaged property) in the Master's office; and they were, accordingly, deposited there.

In the beginning of the year 1844, Richard Newman, being desirous of paying off the mortgage, gave notice thereof to the executors, and in June, 1844, paid to them the money due on the mortgage.

Richard Newman now presented a petition, stating the above facts, and also stating that he was not aware of the existence of the suit, and that he had had no notice of the decree at the time the money was lent and the mortgage made; that he had not then heard of any suit or decree, and that he had no reason to believe that there was any such; and that the executors had declined to procure the deeds for him; and praying that the deeds might be delivered to him out of the Master's office, and that he might have the costs of the application.

The statements of the petitioner were verified by affidavit.

Mr. Prior, for the petitioner.

Mr. Harwood, for the executors, contended that the mortgagor ought to pay the costs, and cited Wetherell v. Collins (1).

Mr. Lovat, for the other parties.

KNIGHT BRUCE, V.-C.:

This is the case of a mortgage made to three persons who were not mentioned or described in the mortgage deed to be executors, or described in any particular manner whatsoever. The mortgage was made without the mortgagor's knowing that there was any decree or suit relating to the estate, of which the money lent was a part. I do not refer to the constructive notice to all the world, inferred from a lis pendens, but there was no real or substantial notice of any decree or suit relating to the estate, part of which was advanced by the executors. After the mortgage had been

(1) 18 R. R. 229 (3 Madd. 255).

made, the mortgagees and other persons, unknown to the mortgagor, thought it right that the deeds relating to the testator's estate, and, among them, the title-deeds of the mortgagor, should be placed in a certain place of deposit, that deposit being the Court of Chancery, and the deeds were ordered to be placed there by an order of the Court. The mortgagor afterwards gave notice to the mortgagees of his desire to pay off the mortgage, and to receive back his deeds; the mortgagees received the notice, but were unable to give him the deeds by reason of their being deposited in Court. The mortgagor then applied to the mortgagees to get an order from the Court for the delivery of the deeds. They refused to do so, and the mortgagor was obliged himself to apply. It is now said that the mortgagor must bear the expense of getting the deeds out of the Master's office. I am of opinion, that quite consistently with the case of Wethèrell v. Collins, and the case of Burden v. Oldaker (1), recently decided in this Court, from which the present is distinguishable, I may give the mortgagor the costs of this application.

An order was made that the mortgagor should have the deeds, and that the mortgagees should pay the costs, without prejudice to how these costs should be ultimately borne.

DREVER v. MAUDESLEY.

(13 L. J. Ch. 433-434; S. C. 8 Jur. 547.)

Where a receiver was in the habit of paying the monies he received into a banker's hands, and receiving interest on the balances, he was held liable for the loss occasioned by the banker's bankruptcy, although the time for passing his accounts had not arrived at the time of the bankruptcy.

IN 1832, the Hon. Thomas Americus Erskine was appointed receiver of certain tithes to which the suit related. He consented to act without salary, and was directed by the order to deliver his first account, which was to be made up to Lady Day, 1833, on or before the first day of Michaelmas Term, 1833; and his subsequent annual accounts, made up to Lady Day in each year, were to be delivered on or before the first day of the succeeding Michaelmas Term. The accounts for the years 1836, 1837, 1838, and 1839, not having been duly delivered, the plaintiff, in June, 1840, caused the receiver to be served with a notice to bring in his accounts for

(1) 13 L. J. Ch. 240

DREVER those four years. Those accounts were brought in some time MAUDESLEY, afterwards, the last account being brought in in April, 1841.

[ *434]

In February, 1842, the receiver brought in his account up to Lady Day, 1840, the balance on which was 1,832l. 4s. 4d. In April, 1842, he brought in his accounts up to Lady Day, 1841, the balance on which was 2,0941. Os. 2d. The receiver had been in the habit of paying the monies which came to his hands as receiver into the bank of Messrs. Daintry, Ryle & Co., of Macclesfield, who placed them in their books to an account entitled "The Tithe Account," and allowed the receiver, for his own use, interest at 2 per cent. on the balances in their hands. Messrs. Daintry & Co. stopped payment on the 30th of June, 1841, and there was then in their hands on "The Tithe Account" a sum of 6,8911. 16s. 10d., comprising all the balance for 1841 and part of the balance for *1840. Messrs. Daintry & Co. paid a dividend of 6s. in the pound on the sum of 6,891, 16s. 10d.

In December, 1842, a motion was made before the Vice-Chancellor, on behalf of the plaintiff, that the receiver should pay into Court the sum of 3,9261. 6s. 4d., being the amount which was due from him on the balance of his accounts for 1840 and 1841. The VICE-CHANCELLOR ordered that the receiver should, on or before the 24th of December, 1842, pay 1,6841., part of 2,067. 10s., the amount of the dividends paid by Messrs. Daintry & Co. on the 6,891l. 16s. 10d., after deducting certain costs, and that he should, on or before the 3rd of March, 1843, pay into Court the sum of 2,2421. 6s. 4d., being the difference between 1,6847. and the sum of 3,9261. 6s. 4d. which had been found due from him; and the receiver was to pay the costs of that application.

The receiver moved, by way of appeal, to discharge that order.

Mr. Bethell and Mr. Lloyd, for the appellant, contended, that so far as related to the balance for the year ending at Lady Day, 1841, the receiver was not required to pass those accounts before Michaelmas in that year, and that he was fully justified in depositing the money with the bankers until he could pay it into Court; that in that respect, therefore, he was not guilty of any neglect or omission that with regard to the balance for the year 1840, the account certainly ought strictly to have been taken in by Michaelmas, 1840, and the balance paid in, a month or two before the bankers stopped payment; but the receiver was acting for the benefit of the different parties without salary, and had not committed