to secure the Fund; and the Court held, that a party so circumstanced was entitled upon such Bill to have part of the Personal Estate secured for the Legacy (q). The doctrine seems to be the same, whether the Legacy be payable at a fixed, or at a future, contingent day; as, where a Legacy was left to a female Infant to be paid at twenty-one or Marriage, with Interest at four per cent., but if she died before, to sink into the Residue on a Bill filed, the Court ordered the Legacy to be paid into the Bank, in order to secure the same, and if greater Interest than 41. was made, it should be for the benefit of the Child; for if it produced less Interest, the Executor would not be obliged to make up the deficiency (r). In this case, also, there was not the least surmise of any danger of losing the Legacy from the circumstances of the Defendant (s). In another Case, where the Testator had given the Plaintiff 15,000l. to be paid at twenty-one, or Marriage, with Interest in the mean time, but if she died before, to sink; the Master of the Rolls thought the Legacy must be appropriated; and he decided accordingly (t). It must be observed, however, that in cases of this description the Court will not interfere to sequre the Fund upon the application of a Person who does not show any Title (u). (q) Johnson v. De la Creuze, 17th July 1749, cited by Lord Thurlow, in Green and Pigot, 1 Bro. 105, and mentioned in Ferrand against Prentice, Amb. P. 273; see also Studholme and Hodgson, 3 P. Wms. p. 299. Pierce v. Taylor, Ibid. 108. Bro. 105; and see Cary v. (t) Carey against Askew, 2 Bro. C. C. 58. (u) Browne against Dud Where one by Will gave an Annuity out of his personal Estate, and a Bill of this kind was filed, the Master of the Rolls observed, "since the Executor has by his Answer submitted it to the Court, whether he should give any Security, and appears to have expressed himself in words threatening to defeat the Annuity, let the Master see a sufficient part of the personal Estate set apart, and assigned to a Trustee, in trust, to secure the Annuity (x)." And where there has been no such submission by the Answer, or any threats, the Court has in like manner interfered (y). Other cases where Bills of this description have been held proper are also to be found in the Reports. Thus, where A. was entitled to the use of Goods, and a Library for Life, with Remainder to the Plaintiff's Wife, who died, the Plaintiff, as her Administrator, brought a Bill of this description to have the Goods, &c. secured to him after the death of A., and a Decree was made accordingly (≈). It seems, however, according to the observation of Lord Thurlow, that the cases as to a Tenant for Life giving security for the Goods, have been overruled, and the Court now demands only an Inventory, which, he observes, is more equal Justice, and that there ought to be danger in order to require a Security (a). Originally there could be no limitation over of a (z) Batten v. Earnley, 2 P. Wms. p. 163. (y) See Slanning v. Style, 3 P. Wms. 335, 6. Rous v. Noble, 2 Vern. 249. S. C. 1 Cha. Cas. 121. (x) Bracken and Bentley, 1 Ch. Rep. 110. S. C. 1 Eq. Cas. Abr. 78. pl. 1. (a) Foley against Burnet, 1 Bro. C. C. 279. Lecke v. Bennet, 1 Atk. 471. Bill v. Kynaston, Atk. 82. Chattel, and a gift for life carried the whole Interest. Afterwards, in a Case before Lord Somers (b), a distinction was taken between the Use and the Property, which has since been adopted. If, however, there is a specific gift for life, of things quæ ipso usu consumunter, such as Corn and Hay, it operates as a gift of the Property, and there cannot be a Limitation over after a Life Interest in such articles. If included in a residuary Bequest for Life, they must then be sold, and the Interest enjoyed by the Tenant for Life (c). Where a Bill Quia Timet was filed to deliver Apprentice's Bond and Indentures, he being out of his Time, it was ordered, that the Defendant should either bring his Action within a Year, or deliver up the Bond and Indentures; for if it were at the Master's choice to stay as long as he pleased, he would perhaps stay till the Apprentice's Witnesses were dead (d). up an So, also, the Lord Keeper North thought that if A. is bound for B. and has a counter Bond from B., and the money is become payable on the original Bond, Equity will compel B. to pay, although A. is not troubled or molested for the Debt, since it is unreasonable that a Man should always have such a cloud hung over him (e); and in Lee v. Rook (f), Sir J. Jekyll says, "If I borrow Money on Mortgage my Estate for another, I may come into Equity of (b) Hyde and Parratt, 1 P. Wms. p. 1; and to that effect are the subsequent cases, 1 P. Wms. p. 500, and 651; and see Randall v. Russell, 3 Meriv. 195. (c) Randall v. Russell, 3 (d) 1 Ch. Cas. 70. S. C. 1 Eq. Abr. pl. 2. (e) Ranelaugh v. Hayes, 1 Vern. 190. S. C. 1 Eq. Abr. 79. (f) Mos. 318. (as every Surety may against his Principal) to have my Estate disencumbered by him." A Bill of this nature lies to secure the property of a deceased Debtor from being misapplied by his Executor (g). But such Bill must be filed against the Executor, and not against the Debtors, &c. of the deceased, unless where the Executor and Debtors collude (h). If the Executor is insolvent, on a Bill filed, praying for a Receiver, a Receiver will be appointed, who may bring Actions; and if Persons are about to pay Money to an insolvent Executor, the Court will restrain him from receiving it (i). Pending a Litigation, the Property is often in danger of being lost or injured, and in such cases a Court of Equity will interpose to preserve it, if the Powers of the Court in which the Litigation is depending are insufficient for that purpose. Thus, during a Suit in an Ecclesiastical Court for Administration of the effects of a deceased Person, a Court of Equity will entertain a Bill for the mere preservation of the Property of the deceased, till the Litigation is determined, although the Ecclesiastical Court, by granting an Administration pendente lite, might provide for the collection of the effects (). But the Court will not interfere by appointing a Receiver upon the mere ground that two Wills are in controversy in the Spiritual Court, and (g) 2 Atk. 212. 1st vol. of Fonbl. Equity, p. 42, in note. (h) Elmslie v. Macauley, 3 Bro. C. C. 624. (i) Utterson against Mair, 4 Bro. C. C. 277. (k) Redesd. Tr. Pl. 122. King and King, 6 Ves. 172; and see Edmunds v. Bird, 1 Ves, & Bea no suggestion that the Property is in danger, and cannot be secured by an administration pendente lite (1). XII. Bills for the delivery up of Deeds, or for securing them; or for the delivery up of specific Chattels. BILLS for the delivery up of Deeds, or for the securing of them, are classible under this head. The Court, however, in many cases, will not order Deeds to be delivered up, unless upon Terms (m). Such Bills appear to have been entertained so early as in the Reign of Edward IV. (n), but not, it seems, where detinue would lie (o), a distinction not now regarded. If the Title to the possession of Deeds and Writings which the Plaintiff prays may be delivered up, depends on the validity of his Title to the Property to which they relate, and he is not in possession of that Property, and the Evidence of his Title to it is in his own. power, or does not depend on the production of such Deeds or Writings, he must establish his Title to the Property at Law before he can come into a Court of Equity for delivery of the Deeds or Writings (p). If a Man hath Issue a Daughter, and leaves his Wife privement ensient, the Wife may detain the Charters against the Daughter, from the possibility that the child the Wife is pregnant with, may be a Son (q), (1)Richards v. Chave, 12 Ves. 462. Knight v. Duplessis, a Ves. 324.; and on this subject argued on demurrer, 13th June 1812, MS. V. - (m) Bromley y. Holland, 5 Ves. 618. (n) See 9 Edw. 4. 41 B. and the stat. 32 Hen. 8. c. 36. s. 9. (0) 9 Edw. 4. 41 B. (p) Redesd. Tr. Pl. (q) 41 Edw. 3. 11. Grounds and Rudiments, p. 327. |