Commissioners under a commission of Partition,

have no lien on the Commission for their charges (a).

XV. Bills to establish a Modus.

A BILL to establish a Modus is in the nature of a Cross-Bill against a demand for Tithes; for a Person is not allowed to file a Bill to establish a Modus unless he has been actually disturbed by Proceedings at Law, in Equity, or in the Ecclesiastical Court (b). And the Bill must set out the Modus sought to be established, with certainty, or the Bill will be dismissed (c).

It seems settled, that occupiers only, who are not owners, can have a decree for establishing payments in lieu of Tithes (d), but there is only one case of that description (e).

XVI. Bills to marshal Securities.

IT has been held, that if a Party has two Funds by which his Debt is secured, a Person having an Interest in one Fund only, has a right in Equity to compel the former to resort to the other fund, if that is necessary for the satisfaction of both. If therefore A. has two Mortgages, and B. has one, B. has a right to throw 4. upon the Security which B. cannot touch (f).

(a) Young v. Sutton, 2 Ves. & Bea. 365.

(b) Gordon v. Simpkinson, 11 Ves. 510. S. C. MS. Lord Coventry v. Burslem, 2 Anstr. 567, n. 4 Gwill. Tith. 1596. (c) Ekins v. Dormer, 3 Atk.

534.

(d) Vid. Warden, &c. of St. Paul's v. Morris, 9 Ves. 163. (e) Wardens, &c. of St. Paul's v. Crickett, 2 Ves. jun. 563.

(f) Lanoy v. Duke and Duchess of Atholl, 2 Atk. 446; see Aldrich v. Cooper and others, 8 Ves. 388, 395. This last case

So, where in Bankruptcy the Crown by Extent lays hold of all the Property, even against Creditors, it has been confined to such property as would leave the Securities of Encumbrancers effectual (g).

In a case, where the Loyalist Estates in America were, under the forfeiting Acts, to be sold for the payment of debts, this was held not to be a ground for an Injunction to restrain an Action here on a Bond (h).

But though, if two Funds of a Debtor are liable to one Creditor, and only one Fund to another, the former shall be thrown upon that Fund, to which the other cannot resort, in order that he may avail himself of his own Security, where that can be done without injustice to the Debtor or the Creditor; yet that principle has never been pressed to the effect of injustice to the common Debtor. Much less have persons who are not common Creditors of the same Debtor, a right to compel the Creditors of both Funds to resort to the one, in order to leave a larger dividend for those who can claim against the other (i).

Where the Property of an American Loyalist had been confiscated during the American War, subject to the claims of such of his Creditors as were friendly to American Independence to be made within a limited time, and restrained to the Inhabitants of a particular State, a Bill, it was holden, would not lie to have Bonds delivered up, or to compel the Creditor to resort in the first instance to the Fund arising from

contains a luminous exposition of the subject, in all its bearings. (g) Aldrich v. Cooper and

(h) Kempe against Antill, 2 Bro. C. C. 11.

(i) Ex parte Kendall, 17 Ves.

the confiscation, as it did not appear that the Creditor had the clear means of making his demand effectual against that Fund (k); and if that had so appeared, the Creditor it seems would have had a right to sue personally (1).

Where a Testator devised two several Estates for the payment of his debts, and devised also an Annuity payable out of one of them; and the Trustees sold that estate out of which the Annuity was payable; the Court decreed the other Estate to stand charged with the Annuity (m).

XVII. Bills to secure Property in Litigation in other Courts.

WHERE a Suit was pending in the Ecclesiastical Court to recall a Probate, on the ground that the Testator was insane, Lord Loughborough appointed a Receiver before Answer, and without notice of the Motion (n). In such case, as Probate had been granted, no Administrator pendente lite could be appointed by the Ecclesiastical Court (0). But where there is a dispute respecting Probate, and no Probate has been granted, this Court, it has been held, will not interfere, because the Ecclesiastical Court has Jurisdiction to grant Administration pendente lite, and the Administrator may maintain an Action to recover Debts, by which means no loss can

(k) Wright v. Simpson, 6 Ves. 714.

(Ibid. contra, Wright v. Nutt, 3 Bro. C. C. 326. 1 H. Black, 136.

(m) 1 Ch. Rep. 295. and see Francis's Max. Eq. p. 10, where other cases are mentioned,

illustrative of the doctrine of marshalling Securities.

(n) Palmer v. Price, mentioned arg. in Anonymous case, 12 Ves. p. 4.

(0) Powis v. Andrews, mentioned 1 Ves. 324.

fall upon the persona! Estate (p); but in a recent case (q) it was determined that a Bill will lie for an Account of personal Estate and a Receiver, pending Litigation for Probate, though an Administration pendente lite might be obtained in the Ecclesiastical Court; but if no ground be stated in the Bill, to show that in case of Intestacy, Letters of Administration could not be immediately obtained, it cannot be sustained (r).

A Bill of this description lies, similar to the Writ of Estrepement, formerly in use, to prevent the Commission of Waste by a Tenant whilst the Title to Land is in Litigation (s); but against a mere Trespasser the Court will not interfere, though the Writ of Estrepement applied in such case (t).

XVIII. Bills to compel the Lord of a Manor to hold a Court, or to admit a Copyholder; and Bills to reverse an erroneous Judgment in a Copyhold Court.

WHERE the Lord of a Manor refused to hold Courts and grant Admittances, &c. the Copyhold Tenants exhibited their Bill, and Lord Coventry decreed, that the Defendant and his Heirs should from time to time, as occasion should require, procure Courts to be held for the said Manors, and suffer the Plaintiffs and their Heirs to make Surrenders to such Persons and for such Uses as the Copyholders should

(p) Knight v. Du Plessis, 1 Ves. 324.

(g) Atkinson v. Henshaw, 2 Ves. & Bea. 85.

(r) Jones v. Frost, 3 Madd. Rep. 1. (s) Redesd. Tr. Pl. 110, 3rd edit.

(1) 8 Ves. go; & 9 Ves. 231.

limit and direct, and that the Surrenderees should be admitted accordingly (u).

From the earliest times, it has been held, a Bill lies to compel a Lord to admit a Copyholder(); the reason given, being, that an Action would not lie against the Lord, and there is no remedy but in Chancery (y). In a recent case, however (z), the Court of King's Bench granted a mandamus to compel the Lord to admit the Heir of a Trustee to enable him to try his Title; but this assumed Jurisdiction of the Courts of Law does not, it is presumed, oust the Jurisdiction of a Court of Equity.

If a Copyholder sues by Petition in the Lord's Court, upon which the Lord gives Judgment, though no Appeal or Writ of Error will lie in respect of such Judgment, yet the Court of Chancery will correct the proceedings in case any thing is done therein against conscience (a).

HAVING Considered the instances in which a Court of Equity interferes to prevent Fraud, we now proceed to the consideration of those cases where Equity interferes to redress Frauds which have been committed.

(u) Moor v. Huntingdon, Nels. 12.

(x) See Cro. Jac. 368. 2 Bulstr. 336. S. C. and see other cases of the kind noticed in Grounds and Rudiments; p. 34.

(y) King v. Coggan, 6 East,

431.

(*) See Co. Copyh. sect. 39.

(a) Per Ch. J. Parker, in Christian v. Corren, 1 P. Wms. 330.