also brought an action against the Plaintiff's attorney, upon his undertaking to return the policy. The question I have to consider is, whether the Defendant at law is entitled to an injunction to restrain that action; and that turns upon the construction of the deed of inspection.
It appears to me that it was clearly the intention of all the parties to that deed, that all matters both as between the Plaintiff and the creditors, and between the several creditors, should be conducted and settled exactly as if there had been an actual adjudication in bankruptcy. That intention is clear from the language of the deed, and so clearly in the 11th section of the deed, that there is a provision that if there should be any specific directions in the deed which would militate against the principles of the Court of Bankruptcy, that such directions should be modified so as to make them agree with those principles. The principle in bankruptcy as between creditors is that all shall take pari passu, and that a creditor who holds security must take his choice, either to avail himself of his security and not to come on the other assets, except for the balance of the debt after realizing the security, or else to come and prove for the whole debt, and give up the particular security for the benefit of the general body of creditors.
The Defendant therefore was entitled, at his option, to prove for the whole of his debt. Having a security which was of no value, he made his election to prove for the whole debt, and having done this, his security, had it been of any value, would have been the property of the other creditors.
It has however been contended that, so far as relates
to securities, the principles of bankruptcy should not apply, by reason of the recital that it had been resolved that no creditor signing or assenting to the resolution should be in any way prejudiced as to his rights and remedies against third persons, or with respect to any security or lien for his particular debt, and also by reason that the 27th and 28th clauses provide-[His Honor referred to those clauses, see ante, pp. 713, 714.]
The question is whether these clauses are to prevail against the other parts of the deed, which declare that the inspection should be according to the rules in bankruptcy. The language of the deed appears to me to have no such meaning. Had that been the intention, the language of the deed would have been different; it would have been that, notwithstanding that the rules in bankruptcy were to prevail, the intention was that those rules should not apply with respect to securities, and that any creditor holding security might prove for the whole of his debt and still hold his security. The absence of any such language goes a long way to contradict the Defendant's contention. But the effect of the clauses in the deed is that a creditor is not to be prevented from enforcing his security by reason of his executing the deed, and not that he is to prove for his debt under the deed and keep his security. These clauses do not seem to me to apply.
I think, therefore, that the Plaintiff is entitled to a perpetual injunction.
With regard to the question of costs; having regard to the conduct of the parties, the injunction must be granted without costs.
ACKNOWLEDGMENT.
The acknowledgment provided for
by the 5th section of the 3 & 4
Will. 4, c. 42, in order to take a
specialty debt out of the operation
of that statute, need not be made
by the person chargeable to the
person entitled or amount to a
promise to pay. Held, therefore,
that an admission of a bond debt,
contained in the answer of the ex-
ecutors of the obligor in a suit to
which the obligee was not a party,
was sufficient to take the bond
debt out of the operation of that
statute. A residuary legatee may
set up the Statute of Limitations
as against creditors in an adminis-
tration suit, though the executors
do not take the objection. [Moodie
v. Bannister]
ACT OF PARLIAMENT.
The Lands Clauses Consolidation
Act, sect. 80, contemplates not
one application in respect of seve-
ral re-investments, but several ap-
plications where it was shown to
been paid out of the income of the
tenant for life of the real estate,
the Court will investigate the ap-
plication of the personal estate, so
as to determine the equities be-
tweeen the tenant for life and the
remainderman. [Shore v. Shore]
219
2. On the death of an intestate no
next of kin appeared. The Crown
nominated the Crown solicitor to
take out administration; the ad-
ministrator held the fund, paid all
outgoings, and, after a certain
time, handed over the fund to the
king's proctor for the use of his
majesty; afterwards the Plaintiffs
established their title. Held, that
the Crown must restore the fund,
with interest, the interest to be
computed from the time when all
payments on the part of the estate
had been made. [Edgar v. Rey-
nolds]
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and the marriage took place on the
faith of that promise. In par. 7
it alleged that Plaintiff, on the
issuing of a certain commission of
lunacy by Young against Plaintiff,
filed an affidavit containing these
words: "I say I believe that the
said R. C. Young is not a man of
considerable property, because, on
my marriage, with his daughter,
he confessed his inability to give
or provide her any marriage por-
tion," and that in reply Young filed
another, stating thus: "The state-
ment contained in the affidavit of
the said G Barkworth" (the Plain-
tiff) "that his reason for be-
lieving me not to be a man of
considerable property is, that on
his marriage with my daughter I
confessed to him my inability to
provide any marriage portion, is
not correct; according to the best
of my recollection and belief, the
words I made use of on that
occasion were, There will be
no money for you now, but at
my death she (meaning my late
daughter Mrs. Barkworth) shall
share with the rest of my chil-
dren.' Young died in 1855, sur-
viving Mrs. Barkworth, having
given away his property by will,
and not having, by his will or
otherwise, made any provision for
Mrs. Barkworth or her children.
Held, on demurrer:—1. That the
Statute of Frauds may be set up
by demurrer. 2. That the alle-
gation in par. I was only of a
verbal agreement. 3. That the
allegation of the statement by affi-
davit in par. 7 was an allegation of
a sufficient note or memorandum
in writing of the verbal agree-
ment. 4. That such a memoran-
dum, though written after the mar-
riage, was sufficient. 5. That the
agreement might have been per-
formed in two ways: by Young
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making a provision by will for his
daughter, or by dying intestate;
and that though he was precluded
by his daughter's death from per-
forming it in the first way, he
was not thereby exonerated from
making a provision in the way still
open to him, of dying intestate:
and therefore the Plaintiff's bill,
praying for an equal share of the
testator's residuary estate, was not
on that ground demurrable. But
held, that the representatives of
the deceased daughter ought to
have been parties. [Barkworth v.
Young]
By a will a sum of stock was given
to trustees, out of the dividends to
pay annuities to A., B. and C. for
their lives, and after their deaths
to pay the annuities to E., F. and
G., without saying for life or other-
wise, and after the death of sur-
vivor of E. F. and G. to pay the
stock to H. Held, that the an-
nuities were to endure till the
death of the survivor, and the re-
presentative of a deceased annui-
tant was entitled till the death of
the surviving annuitant. [Big-
nold v. Giles]. ·
APPOINTMENT.
1. A. was sole legatee and executor
of the testator's personal estate and
tenant for life of his real estate,
with remainder to his son. At
the death of the testator, he was
largely indebted, and his personal
estate was outstanding, owing, as
to the greater part, to his having
advanced large sums to a bank, of
which his son was a partner, and
which failed and became bankrupt.
For a long period, about eleven
years, the tenant for life kept
down the interest of the debts out
of his life estate, which was wholly
or nearly absorbed by such pay-
ment. Ultimately, enough per-
sonalty was got in to pay a large
portion of the debts, and was so
applied, and then the real estate
was sold. Held, that no portion
of the money representing the
corpus of the real estate could be
applied in recouping the tenant for
life the interest he had paid. A
receiver had been appointed both
of the real and personal estate.
Held, that the tenant for life
must bear the receiver's pound-
age. [Shore v. Shore]. 501
2. Where the donee exercises a
power of appointment in favor
of one of several objects of the
power, with a view to the benefit
of a stranger, the appointment is
fraudulent and void, even although
the appointee is ignorant of the
fraud and the motive of the donee
is not morally wrong. Therefore,
where a married woman having a
power to appoint a fund, of which
she received the income for her
life, among her children, appointed
the whole fund at her death to her
eldest daughter, in order that
thereout the daughter should bene-
fit her father, but the daughter was
not informed of the mother's in-
tention until after her mother's
death-Held, that such appoint-
ment was void. [In re Marsden's
Trust]
594
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1. There is no positive rule that a
trustee cannot buy from his cestui
que trust; nor that an assignee in
bankruptcy may not buy from
a creditor his dividends. But
where an assignee bought from a
creditor, not in his own name, but
in the name of a stranger, and it
was not clear that the creditor
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