MASON

ፖ.

BOGG.

[444]

[445]

[ 447]

April, 1836, a decree was made in the present suit, for an account of the intestate's debts, and the due administration of his estate; and the defendant thereupon moved that Morton and wife might be restrained from proceeding in their action. Upon that motion, the VICE-CHANCELLOR ordered that Morton and wife should be at liberty to proceed to judgment in their action, but that the judgment should be dealt with as the Court should direct.

The VICE-CHANCELLOR, subsequently, on the application of Morton and wife, made an order, dated the 19th of December, 1836, by which it was directed that William Morton and Jane his wife, in right of the said Jane as executrix of Joseph Wilson, deceased, should have a lien on the hereditaments described in the indenture of the 13th of October, 1829, for the sum of 9001., being the amount of the purchase money for the hereditaments sold by Joseph Wilson to the intestate Thomas *Bogg, and then remaining unpaid, together with interest at 5 per cent.; and that William Morton and Jane his wife, in right of his wife as such executrix, should be considered as specialty creditors for 9001. and interest, and that the costs of that application should be paid by the defendant.

The defendant now moved to discharge the last-mentioned order.

Mr. Koe, in support of the motion [relied on Greenwood v. Taylor (1).]

Mr. Sidebottom, contrà:

A mortgagee may prove for the full amount of his debt as a specialty creditor, and may keep the security in his pocket, until required to convey the land to a purchaser; which he can only be compelled to do upon receiving full payment.

It is to be observed, that no case was cited in Greenwood v. Taylor, and the decision has not been acted on in the Masters' offices.

Mr. Koe, in reply.

(1) 1 Russ. & My. 185,

:

(THE LORD CHANCELLOR I cannot distinguish this case from Greenwood v. Taylor; but, with respect to the principle of that case, it is to be observed, that a mortgagee has a double security: he has a right to proceed against both, and to make the best he can of both. Why he should be deprived of this right because the debtor dies, and dies insolvent, it is not very easy to see. The question can only arise when there is a deficient security and an insolvent estate. So that the worse the creditor's case; the harder the course of the Court against him. What you contend is that the creditor shall not proceed to enforce his legal rights unless he gives up his security.)

The decree of this Court is in the nature of a judgment for all creditors.

(THE LORD CHANCELLOR: Not for the purpose of altering the securities of the creditors. It is a judgment according to their legal rights.)

I am contending for what is expressly decided by Greenwood v.
Taylor.

(THE LORD CHANCELLOR: I take it for granted you can find no other case. It is an extremely important case, and should not be disposed of hastily. I am desirous of having it thoroughly investigated before I act upon it.)

The counsel on both sides admitted that they had been unable to find any other case: but they differed upon the question whether the rule laid down in Greenwood v. Taylor had been acted upon; and the motion stood over in order that the counsel might make further searches, and that the Registrar might search for precedents upon the subject, which he was directed by the LORD CHANCELLOR to do.

Mr. Koe, on a subsequent day, renewed his application for the discharge of the VICE-CHANCELLOR'S order, and mentioned the case of Perry v. Barker (1). Mr. Sidebottom opposed the

(1) 9 R. R. 171 (8 Ves. 527; 13 Ves. 198).

B.R.-VOL. XLV.

8

MASON

บ.

BOGG.

application; but neither of them produced any authority upon the point decided in Greenwood v. Taylor.

The LORD CHANCELLOR said it appeared to him that the VICECHANCELLOR's order asserted that about which there could be no doubt, namely, that Joseph Wilson, the deceased vendor, had a lien, and that he was a specialty creditor, and that it left the question quite open as to how his rights were to be dealt with. The effect of discharging the order would be to leave the injunc tion which had been granted in force, and to deprive the creditor of the means of enforcing his rights. His Lordship thought that the matter was not in such a state as to call for an opinion upon the question which arose in Greenwood v. Taylor, and which had been before discussed; and he refused the motion with costs.

[451] and wife, sworn on the 26th of April, that

*

*

It appeared by the affidavit of a clerk of the agents for Morton he had shown the report of the case of Greenwood v. Taylor to the Master and nine chief clerks, and that they all informed the deponent that they had not been previously aware that the case had been decided.

**

1837. April 6, 8.

Lord
COTTENHAM,
L.C.
[459]

FLOWER v. MARTEN.

(2 My. & Cr. 459–475; S. C. 1 Jur. 233.)

A bond for a sum of money ordered to be delivered up to be cancelled; the LORD CHANCELLOR being of opinion, upon the evidence, first, that the bond was not intended to operate as a security for money at all events, but was given for a collateral purpose, which had been fully satisfied; and, secondly, if that were doubtful, that the obligee's subsequent conduct and mode of dealing with the bond during the whole of his life amounted, in equity, to a release of the debt.

THE plaintiff was the only son and heir-at-law of the late Sir Charles Flower, Bart. Some time prior to the year 1822, his expensive habits and mode of life had occasioned much dissatisfaction to his father, and had led to differences, which terminated in a total estrangement and suspension of intercourse between them. In the course of that year, however, the plaintiff, who was then married, having got into further pecuniary difficulties,

was induced to apply to his father, and to request him to advance a sum of money to relieve his immediate necessities. The application was referred by Sir Charles Flower to the defendants Robert Humphrey Marten and John Petty Muspratt, two of Sir Charles's old and confidential friends, with a request that they would take into consideration all matters in difference between the plaintiff and himself, more especially as regarded the plaintiff's debts and the expenses of his mode of living, and that they would give him their impartial advice as to the course he ought to adopt towards his son, by which advice he professed himself willing to be governed. Those gentlemen undertook the reference, and entered into communication with the plaintiff, who likewise consented to abide by the determination to which they should come with respect to his future course: and, after having fully investigated and considered the state of the plaintiff's affairs, they communicated the result of their deliberations in the form of a letter, addressed to Sir Charles Flower, and containing a number of distinct propositions, which were intended and understood by all parties as the basis of the proposed arrangement between the father and the son.

This letter, after stating that the amount of the plaintiff's debts and liabilities, as ascertained by a written statement made out and signed by the plaintiff, did not exceed 4,000l., exclusive of some tradesmen's bills and other demands not then liquidated, proceeded as follows: "Having now for several weeks given our anxious attention to this interesting subject, and trusting that our decision will lead to a sincere and lasting reunion between you and your son, we recommend and determine,

1st. That over and above the large sums already paid and advanced for your son, you relieve him from all the debts and liabilities referred to in the statement so signed by him; it being understood that you are, against the payments made and to be made for him, to retain the balance received, or to be received for him from the Brewery, and the produce of the Indian Stock lately sold, and of the lease and furniture in Bedford Square, and to have such security from Mr. L. as you may be enabled to obtain, for 1,100l., or whatever sum may appear to be due from him in any way to your son; and

FLOWER

v.

MARTEN.

[ *461 ]

for obtaining which, you are to have all requisite legal authority
from your son.
You are likewise to have the advantage of
any securities, bonds, judgments, agreements, abatements, com-
promises, &c., from any parties, whereby the nominal amount
of your son's debts may be diminished.

2ndly. That your son shall give you his bond, bearing date
from the last payment of any sum in the aforesaid statement,
for 4,500l., in satisfaction of all pecuniary claims upon him,
including the payments in the said statement to be yet made,
such bond to be payable on demand, with interest at 4 per cent.
per annum.
But the bond is to remain in our hands, and not
to be acted upon for the recovery of principal or interest within
six years from the date of the bond, without the consent in
writing of us, or of the survivor of us; and moreover, that in
case we or the survivor of us shall, at any time within six years,
by a memorandum in writing direct the bond to be delivered
up and cancelled, such cancellation, or an order from us or
the survivor of us for that purpose, shall operate as a total
extinguishment of the debt, both as to principal and interest.”

The 3rd and 4th propositions were, for the present purpose, im material. The 5th and 6th were as follows:

"5thly. As your son must again have a house to reside in, and as he is content to have one suited to his income, we further recommend and determine that you present your daughter-in-law with 500l., to be laid out in furnishing the house in which they may intend to reside, on their having fixed upon such house and declaring their want of furniture for it. Their linen, plate, &c., now in their possession, to remain their own.

6thly. Should any misunderstanding arise on this our determination, we reserve to ourselves, in order to fulfil our undertaking for both parties, the power to decide on such matters as may be the subject of doubt."

The letter then informed Sir Charles, that his son, so far as he was concerned, was perfectly ready to accede to these propositions, and that he was anxious to be allowed to renew his intercourse with his father, and to testify his deep sense of the obligations which he owed to him. It concluded by expressing the anxious hope of the writers, that the arrangements which