Lord Amherst v. Duchess of Leeds.

nothing, either in the will or in the codicil, which shows that he considered it as certain that the Duchess Dowager and the present Duke would not reside together.

My opinion is, that the Duchess is entitled, absolutely, to the beds and other specified articles of furniture at Hornby Castle which the codicil empowers her to select; *and [*489] that she is also entitled to receive the annuity of 400, whether she resides at Hornby Castle or elsewhere.

If, as I before said, it is contended that the Duchess has selected articles which she had no right to select, there must be a reference to the Master before I can decide that question.

CASES IN CHANCERY,

BEFORE TH

VICE-CHANCELLOR.

LLOYD v. JONES.

Mortgagor and Mortgagee.-Interest.

1842: 19th February.

A mortgagee in possession, who becomes overpaid pending a suit to redeem, will be charged with interest on the balance, from the date of the report, and on the rents subsequently received by him, from the respective times when those rents were received.

THE bill in this cause was filed, against a mortgagee in possession, to redeem the mortgage.

At the time when the defendant put in his answer, the rents and profits which he had received, were not sufficient to cover the amount due to him for principal and interest: but, pending the proceedings in the Master's office under the decree, he received further rents and profits: in consequence of which a balance of 641. was due from him at the date of the report.

On the cause coming on for further directions,

Mr. Wakefield and Mr. Koe, for the plaintiff, insisted that the defendant ought to be charged with interest on all the sums which he had received on account of rents and profits, since he had

Hollis v. Bryant.

been overpaid. They cited Quarrell v. Beckford,(a) Burton v. Todd, (b) Wilson v. Metcalfe.(c)

[*492]

*Mr. G. Richards and Mr. Cockerell, for the defendant, said that, in the cases cited, the principal and interest had been satisfied before the bill was filed; and that there was no authority for charging a mortgagee with interest, where he had been overpaid in the progress of the suit.

The Vice-Chancellor said that he had no authority to charge the defendant with interest prior to the date of the report; but ordered him to pay interest at four per cent. on the 647. from that time, and an account to be taken of the sums subsequently received by him, and interest to be charged on those sums, at the same rate, from the times when they were received.

HOLLIS v. BRYANT.

Jurisdiction.-Insolvent debtor.—Act of 1 & 2 Vict. c. 110.-Debtor and creditor.-Receiver.

1842 22d February and 2d May.

The assignee of an insolvent debtor, under 1 & 2 Vict. c. 110, being unable to recover an estate belonging to and in the possession of the insolvent, owing to the existence of an old commission of bankruptcy against the insolvent (which, however, had been long since abandoned, in consequence of all the creditors under it having compromised and released their debts,) is entitled to maintain a suit in Chancery against the insolvent and the assignee in bankruptcy, for the recovery of the estate, and for a receiver of the rents in the meantime.

Where a creditor puts in force, against his debtor, the compulsory clauses of 1 & 2 Vict. c. 110, the Insolvent Debtors' Court has no power to compel the debtor to file a schedule of his property.

A MOTION was made, in this cause, for a receiver of the rents of certain real estates in Kent, Surrey and Sussex, of which the

(a) 1 Madd. 269.

(b) Sugd. Vendors, Appendix, No. 20; and 1 Swanst. 255.

(c) 1 Russ. 530.

Hollis v. Bryant.

defendant Bryant was in possession, as absolute owner thereof, and for an injunction to restrain him from continuing to receive the rents.

An affidavit made, by the plaintiff's solicitor, in support of the application, stated as follows: that, in 1839, the *plaintiff recovered judgment against Bryant in an ac- [*493] tion on a promissory note for 607.: that, at the commencement of the action and when the judgment was obtained, Bryant was and had been for nearly thirty years, and still continued a prisoner for debt within the rules of the Queen's Bench prison that, in the belief that he had not any real or personal property which could be made available by legal process in execution of the judgment, the deponent, as the plaintiff's attorney, sued out a ca. sa. against Bryant, and lodged a detainer against him with the marshal of the prison, and charged him in execution upon the judgment; and he was still detained in the cus tody of the marshal, upon such execution of the plaintiff and also of various other creditors to a large amount: that he had been and still was resident, not within the walls of the pri son, but at large within the rules, and appeared to be living at considerable expense: that the plaintiff, not being able to obtain any further satisfaction of his debt, caused application to be made, under the provisions of the Act of the 1st & 2d Vict.,(a) to the Court for the Relief of Insolvent Debtors in England, for the appointment of him, the plaintiff, to be assignee of the estate and effects of Bryant under and according to the said statute: that the court granted a rule, to be served upon Bryant and his detaining creditors, to show cause, on a certain day, why such appointment should not be made: that the rule was duly served accordingly; and, upon the application to make it absolute, Bryant opposed it, on the ground that he was not within the Act, inasmuch as a commission of bankruptcy had issued against him some time back, and was still pending and being acted upon, and operating upon all his property: that, notwithstanding,

Ch. 110.