the Defendant may be compelled to accept the security, proposed for the fifth note; and deliver up the deed and bonds to be cancelled; or to release Plaintiff from the same.

The Defendant by his Answer insisted that the Plaintiff put an end to the resolution and agreement, or waived, or abandoned it, by non-payment of the first and second notes, and not giving the fifth note; and submitted, that the resolution was therefore not binding upon him.

Mr. Thomson and Mr. Treslove, for the Plaintiff, in support of the Motion for an Injunction.-The Defendant has bound himself by the resolution to the rest of Plaintiff's creditors, as well as to the Plaintiff; and, having influenced others to acquiesce in it, cannot now contend, that he was not bound; and by his action at Law sweep away the effects from the other creditors; who have been induced to release their debts. The resolution, expressing, that the instalments were to be secured, implies, that the creditors were to depend on that security; and in that respect this case is distinguished from those, where non-payment of a composition [* 374] at the precise time stipulated put an end to the agreement. The clear effect of this contract is, that on giving the notes the bonds shall be delivered up.

Sir Samuel Romilly and Mr. Cooke, for the Defendant.-In the case of composition, a creditor agreeing to take less than his debt, time is of the utmost importance; and the interests of the other creditors are not to be considered. In Sewell v. Musson (1) the reason is stated; that the creditor has a right to prescribe the condition of his indulgence. Until the debtor has strictly performed his part of the agreement, the creditor is not bound: Heathcote v. Crookshanks (2). This agreement has not been fulfilled by the Plaintiff. The fifth note has not been delivered. All the notes were to be given at the same time. The Defendant on receiving the money, due on the first note, expressly stated, that he did not abandon the bonds. The second note has not been paid: nor does the Bill offer payment.

The Lord CHANCELLOR [ELDON].-My decision upon this motion will not in any degree break in upon the principle, that a creditor, having entered into an agreement for a composition, is not bound to take less than his debt, unless that agreement shall be absolutely and strictly fulfilled (3). This case is constituted of circumstances requiring much attention, beyond what would be due to that simple The question is to be considered with reference, not only to the individuals, who are parties to the agreement, but to the other creditors also whether, attending to the actual nature and faith of the transaction, it is competent to this creditor to resort

case.

*to his original debt; giving the other creditors reason to [375]

(1) 1 Vern. 210; 1 Ch. Ca. 110; Amb. 332.

(2) 2 Term. Rep. 24.

(3) Ex parte Bennet, 2 Atk. 527. See as to that case, post, vol. xix. 100, the note to Ex parte Vere.

A

complain of a breach of the condition, under which they had agreed to accept a composition, if this creditor should retain a demand for his whole debt. If there is any principle for relieving against immediate payment, it arises out of the interest of the other creditors. The justice, due to them, requires the interposition of a Court of Equity to relieve against an action, which, except upon equitable principles, could not be resisted; supposing, which is not clear, if such a use of the bonds would be considered fraudulent, that the Defendant would not have had a sufficient plea at Law. It is said, the action ought to be brought against the other partners also: but then, the bonds being joint and several, a separate execution might have been taken; and, if the parties have dealt so, that one could recover at Law, a Court of Equity has only to take care, that no use shall be made of that power at Law to the prejudice of other creditors. Upon that principle the conclusion is, that this creditor cannot compel payment of more than would have been due upon the notes. Execution must be restrained accordingly to the instalments due upon the notes; and the fifth note must be delivered to the Defendant(1).

SEE, notes 1, 2, to Eastabrook v. Scott, 3 V. 456.

DAY v. MERRY.

The MASTER of the ROLLS for the LORD CHANCellor.

[1810, JAN. 15.]

INJUNCTION against cutting ornamental timber, upon the principle of equitable waste, extended to trees, planted for the purpose of excluding objects from view.

A MOTION was made upon the Bill of the remainder-man in fee against the tenant for life, without impeachment of waste, [* 376] to restrain the Defendant from * cutting ornamental timber, upon the principle of equitable waste.

Sir Samuel Romilly, in support of the Motion, admitting, that it was new, as far as it applied to trees, planted for the purpose of excluding objects from view, contended, that they were within the principle, upon which those Injunctions had been granted (2). The Order was made accordingly.

As to the doctrine of "equitable waste," see, ante, note 4 to Pigot v. Bullock, 1 V. 479.

(1) In Geach v. Ames, (Mss. Mr. Beames, Excheq. 10th Dec. 1823,) after default in paying an instalment under a composition the creditor had received payments. The Court on the ground of fraud established the composition, and granted a perpetual Injunction against the creditor on payment of the instalments remaining due.

(2) Chamberlayne v. Dummer, 1 Bro. C. C. 166; The Marquis of Downshire v.

WHELDALE v. WHELDALE..

The MASTER of the ROLLS for the LORD CHANCELLOR.

[1810, JAN. 15.]

DISCHARGE by Habeas Corpus from Commitment under an Attachment for breach of a Writ of Execution of a Decree for payment of money on account of a Devastavit, as Executor, committed before, though not ascertained by the Report, or decreed to be paid, till after, the time, fixed by an Insolvent Act; of which the party had taken the benefit.

THE Defendant, being in the custody of the Marshal of the King's Bench Prison in an action of debt for 190l., in which action he had been committed on the 3d October, 1796, for want of bail, was in June 1809 charged with an attachment out of the Court of Chancery in this cause, indorsed for breach of a Writ of Execution of an Order in this cause for not paying 645l. 8s. 7d. reported due from him; and stated by the Master's Report to form the clear residue of the testator's personal estate.

*This suit was instituted by the Plaintiff, the residuary [* 377] legatee named in the Will of her grand-father, Thomas Wheldale, against the Defendant Thomas Wheldale, her uncle, and sole executor of the said Thomas Wheldale deceased; praying an account of the testator's personal estate; and that the residue may be secured for the Plaintiff's benefit.

The Defendant, by his answer, admitted the probate of the Will; and stated, that, being an officer, and chiefly employed abroad, he had left the management of the testator's affairs to John Wheldale, the Defendant's brother, and father of the Plaintiff, and to the testator's attorney and confidential friend; and that he had permitted the said John Wheldale to take the stock on the testator's farm, and other parts of his property at certain prices, fixed by indifferent persons, amounting to 645l. 8s. 7d.; for which the said John Wheldale executed a bond to the Defendant, dated the 16th April, 1795.

The answer farther stated, that the said John Wheldale became a bankrupt on the 14th of July, 1798; and that the Defendant had proved the bond, and received 361. for a dividend, under the Commission.

The Defendant did not appear at the hearing of the cause; and the Plaintiff took a Decree for the usual account; and that the Master should ascertain the amount of the clear residue of the testator's personal estate.

The Master by his Report, dated 27th February, 1809, found the several facts, above stated from the answer; and that he had charged the Defendant Thomas Wheldale with the 6457. 8s. 7d.; which sum formed the amount of the clear residue of the testator's personal estate.

Lady Sandys, Lord Tamworth v. Lord Ferrers, antc, vol. vi. 107, 419, and the note, 110; Williams v. M’Namara, viii. 70.

The cause was heard on farther directions on the 4th of May, 1809; and the Defendant not appearing, a Decree was taken, that the Defendant do pay to the Plaintiff the sum of 6451. 8s. 7d. reported due from the Defendant, and forming the amount of the clear residue of the testator's personal estate. On the 8th June, 1809, a writ of execution of this Decree was issued ; on the 10th of June, 1809, the Defendant was charged with an attachment, for breach of this writ of execution; and on the 20th June he was brought up by Habeas Corpus, and committed to the Fleet; and was afterwards by another Habeas Corpus recommitted to the King's Bench prison, charged with the process of this Court.

On the 9th of October, 1809, the Defendant took the benefit of the Insolvent Act. 49 Geo. III. c. 115, when the Court of Quarter Sessions adjudged the said prisoner to be admitted to the benefit of the said Act; and ordered, that the said Marshal should forthwith discharge the said prisoner out of his custody.

Notwithstanding this Order the Marshal did not consider himself. authorized to discharge the Defendent from the attachment, issued out of this Court, and therefore he was now brought by Habeas Corpus before the Lord Chancellor. The only question was, whether under the circumstances of this Decree it was to be considered as a case within the provisions of the Act; which requires the debt to be due or owing before the 1st of February, 1809, whereas the final Decree for payment of this money was not made until the 4th May, 1809; and the writ of execution of the Decree was not until the 8th June.

Mr. Cooke, in support of the Motion, that the prisoner should be discharged, insisted, that an attachment for non-payment [* 379] *of money is considered as process to compel payment of a debt, and is in bankruptcy discharged by a certificate: Baker's Case (1). This sum of 645l. 8s. 7d. became a debt the moment the Devastavit was committed; which was by permitting the brother John Wheldale to possess the effects; and the Master so considered it by charging the Defendant with the whole money, as money come to his hands, and not merely with the dividend, received under the Commission against John Wheldale. Many cases have occurred, where executors became bankrupts after misapplying assets; which were always proved as debts under the Commission; although no account had been previously taken: or Decree for payment pronounced. Upon the same principle this was a debt due before the 1st February, 1809, within the meaning of the Act.

Sir Samuel Romilly, for the Plaintiff, opposed the Motion; contending, that the debt could not be considered as constituted at any period, previous to the Decree for payment; which was subsequent to the time, fixed by the Act.

The MASTER OF THE ROLLS [Sir WILLIAM GRANT] said, it had been otherwise held in bankruptcy, according to the cases, referred

(1) 2 Str. 1152.

to the debt being considered as subsisting from the time, when it was contracted; not, when it was ascertained.

The prisoner was accordingly discharged.

AN order upon a party in a cause for payment of money constitutes an ascertained debt, and an attachment to enforce the payment is a mode of execution adopted by courts of equity for recovering such debt. An attachment having this object must not be confounded with an attachment for a mere contempt; as the process may issue for very different purposes, it by no means follows that an attachment in the nature of an execution for a debt will be discharged by the same means which would discharge an attachment for a contempt: Bartram v. Dannett, Rep. temp. Finch, 253: though an insolvent act, or an act of indemnity, will always receive a liberal construction in favor of the liberty of the subject: Rer v. Stokes, Cowp. 138. An order for payment of money establishes a demand in behalf of the party to whom it is directed to be paid, which demand, if unsatisfied, may sustain a commission of bankruptcy (Ex parte Parker, 3 Ves. 554), or may be proved under a commission taken out by another creditor; and, as a certificate will bar such a debt, the process issued to compel payment of the debt must naturally be discharged when the debt itself is discharged: Wall v. Atkinson, Coop. 199.

BERKELEY v. DAUH.

[* 380]

The MASTER of the ROLLS for the LORD CHANCELLOR.

[1810, JAN. 17.]

OUTSTANDING Term, to attend the inheritance, the trusts being performed, may be an objection to the conveyance: not to the title.

AN Exception was taken by the Defendant to the Master's Report against his title, on the ground, that a term of 98 years, of which 19 years were unexpired, subject to which the Defendant was seised in fee, was outstanding in a trustee, to attend the inheritance; all the trusts being performed.

Sir Samuel Romilly and Mr. Bell, in support of the Exception to the report. Admitting, that the purchaser is right, this is not an objection to the title. The question, who are to join in the conveyance, is a different, and a subsequent, consideration. Where the title is clear, but there are terms or incumbrances to be got in, the established course is, that the Master reports in favor of the title: a reference is then made to him to approve a conveyance; and then the question arises, whether all the parties to a proper conveyance are brought before the Court. This term, all the trusts being performed, and being to attend the inheritance, is a trust for the vendor; who has in him the whole legal and equitable interests; and therefore a good title. The uniform practice is, that, if a purchaser chooses to have a new trustee, he must bear the expense of procuring the assignment. That was assumed, without consideration certainly, in the case of Maundrell v. Maundrell (1); that if the purchaser

(1) Ante, vol. vii. 567; x. 246.