holden of that manor, of or to which any person died seised or entitled.

The bill was filed by the infant Henry Parish, through his next friend, insisting on his right as customary heir of his mother, to her sixth part of the copyhold premises devised by the testator's will. It contained charges negativing the claims of the personal representative of Louisa Parish, who pretended that, under the events which had happened, the property had, with respect to the persons who were to take it after the widow's death, been converted out and out into money, and that the sixth part belonging to Louisa Parish, was quoad her personal estate, and, as such, transmissible to her personal repsesentatives. The prayer was,

that it might be declared that the will, of Richard Sheppard did not amount to or effect a conversion of the copyhold premises, so far as Louisa Parish was interested therein into personal estate, or make her share transmissible as personal estate; and that the plaintiff, as her customary heir, was entitled to her sixth share of the premises, and to the rents and profits thereof from the death of the testator's widow."

The defendants met the question raised in the bill, by putting in a general de

murrer.

Mr. Horne and Mr. Knight, appeared in support of the bill:

Mr. Sugden and Mr. Glyn, were in support of the demurrer.

Mr. Sugden admitted, that the estate could not have been sold till after the death of the widow, although the youngest child attained the age of 21 long before that time. But he argued, that, upon her death, the children were to take the estate as money; for the direction to sell fixed upon it the character of money, and that character could be taken away from it only by an exercise, on the part of the children, of the option which was given them to divide the property as land among themselves. With respect to Louisa Parish's share, however, the option no longer existed; for it was an option given expressly only to the survivors, that is, to the surviving children, and not to their representatives, or to others claiming through them; and Louisa Parish died without

having exercised that option. Consequently her share must remain in the character which the testator's direction for sale had given it, that of money.

Vice Chancellor.-Even if we suppose the right of election gone, does not the question take this shape-The property is in fact land; and is the substantial meaning of the will any thing more, than to give the children an option of converting it into personal estate? When the testator says, "it is my will and desire that the copyholds may be sold and the produce. divided, unless the survivors would rather divide the estates," does he not merely declare, that he gives them land, but that they are to have an option, whether they shall convert that land into personal estate?

It seems to me, however, that the right of election with respect to this sixth part is not gone. It continues, but continues in the real representative; and this customary heir has the same right of election, which the mother had. The option must be continued to the heir, unless the provisions and words of the will are alike disregarded. The power of electing, whether the estates shall be sold, must continue, till the time, at which the testator has said that a sale may be made, has arrived.

Mr. Sugden. The defendant's view of the case is this:-the property is real estate up to the moment at which the testator gives it another character; the clause directing a sale fixes upon it, so far as the interests posterior to the widow's life-estate are concerned, the character of money imperatively; an election, indeed, is given to the children, but it is not their election which is to make it money; on the contrary, the election given to them is to bring it back from the character of money to that of real estate; and this election they could exercise, as soon as they attained the age of 21, though the premises could not have been actually sold till the death of the widow.

Vice Chancellor-This copyhold estate is given to the widow for life, and after her death, is to be divided between such of the testator's children as shall attain the age of 21 years. One of these children attains the age of 21 during the life of the widow, and dies leaving several children,

one of whom, the present plaintiff, claims her share of the copyholds in the character of her customary heir. The answer to this claim, set up by the demurrer of these defendants, is ;- "The customary heir has here no right; for the testator proceeds to direct, that, after the death of the widow, upon the youngest of the surviving children attaining 21, the premises shall be sold and the produce divided among the surviving children, unless they should choose to take the estate itself; this direction converts the estate, in the consideration of the Court of Chancery, absolutely into money; therefore, the right to Louisa Parish's share of the estate did not descend to her customary heir; but her right to the sixth part of the which money, be raised by the sale of the estate, devolved to her personal representative."

may

It seems to me, that I shall, at the same time, best satisfy both the expressed intention of the testator, and also the true legal operation of his words, by adopting a construction different from that for which the defendants by their demurrer contend. His meaning was this:" I give my estates to my wife during her life; and at her death, I give certain parts of them to my younger children who attain 21, in fec; these children may die: if they die, in the lifetime of my wife, I give them such an estate as will vest in their heirs. At the death of my wife, it will be convenient that those, who are entitled to the premises, should have an option to compel a sale; and, therefore, I direct that those who are entitled to claim the estate at the death of my wife, shall have an election to take either their shares of the estate itself, or their shares of the money."

Adopting this construction of the will, I am consequently of opinion, that this plaintiff, at the death of his mother, became entitled to her share of the copyhold premises, and that he has the elec tion to take that share either as money or as land.*

The final judgment of his Lordship was to the following effect:

I have read this will over and over again with great attention, out of respect to the decision of the court below; but, after all the consideration I can give the subject, I cannot concur in that decision.

I understand that all the children attained 21 in the lifetime of the widow, and that no act was done by them whilst all living, determining to keep the estate as real estate. Under these circumstances, I think the estate was an estate directed and desired by the testator to be sold, and that those who represent a deceased child are entitled to her share of the produce of the sale as money.

The decree must declare accordingly.

An officer cannot pledge or mortgage his commission.

If an officer pledges his commission as a security for a loan, and contracts with the lender to sell the commission and repay the debt out of the proceeds of the sale, that lender will nevertheless be postponed to bona fide creditors claiming under an equitable assignment of the money after the sale has been effected, and not having any notice of their debtor's prior contract.

The lender of money upon the security of such contract and deposit, will not be entitled to any preference over the general creditors of the borrower.

In January 1815, the plaintiffs, as the agents of Charles Fallou, who was a captain in a regiment of dragoons, sold his commission, after leave had been duly pbtained, to Lieutenant Binney, and received the purchase-money. Upon this fund various creditors of Fallon made demands; and as there was not enough to satisfy the debts due to all, each claimed a priority over the others. Under these circumstances, the plaintiffs filed a bill of interpleader, and paid the money into court. The original decree ordered a reference to the Master, to inquire into the priorities of the respective creditors of Fallon, who al leged that they had any interest in the fund; and he, by his report made in pursuance of

that decree, stated the opposite claims, and the circumstances under which they arose," to be as follows:

In the first place, the Master found, that Charles Fallon, on the 12th day of January 1815, made and delivered to the plaintiffs a paper writing in the words and figures following:

"Sums to be retained by Messrs. Collyer out of the purchase-money of my troop in the Eleventh Dragoons, as lodged by Lieutenant Binney of that regiment, viz. 17857.

Regimental debts, Lieutenant

£500 0

Binney's acceptance Messrs. Armit and Borough Captain Duberly per his draft Messrs. Fairlie, Bonham & Co., and for which I have given a separate authority

116 1 50

1 Ο

500 0 0

I hereby authorize Messrs. Collyer to retain the above sum out of the purchasemoney of my troop lodged in their hands. CHARLES FALLON, Capt. 11th Drag." London, 12th Jan. 1815.

In the next place, the report stated, that Charles Fallon, on the 19th day of March 1807, signed and delivered a note in the words following, viz.-" London, March 19th, 1807, I hereby acknowledge to have received from Mr. Richard Campbell Bazett, the sum of 150l. on the 31st of January 1807, and on this date, the sum of 3501, making in all 500l., which I engage to repay him on demand, with interest, from the respective dates; and it is hereby understood that my commission, as a lieutenant in the 11th regiment of dragoons, is deposited with Mr. Bazett as a security for those sums.

These sums of 1507. and 350l. had, it appeared, been advanced by Bazett on behalf of a Mr. Colvin of Calcutta.

The Master further found, "that, in the month of September 1809, Charles Fallon being about to purchase a captain's commission in the said regiment of dragoons, but unable to advance the sum of 1900l. necessary for such purchase, applied to Richard Campbell Bazett, as the attorney of Alexander Colvin, to advance the same; that the said Alexander Colvin had instructed Bazett to advance the sum necessary for such purpose, upon condition that

the said Charles Fallon should enter into a bond for securing the payment thereof, together with the further sum of 600l. then due from him to Alexander Colvin, (in which were included the two sums of 150l. and 350l. hereinbefore mentioned, with the interest due thereon,) and that he should deposit with the said Richard Campbell Bazett the commission which he then held, or which he might thereafter hold in the said regiment; that, accordingly, Richard Campbell Bazett, in the month of September 1809, advanced the sum of 1900l.; that Charles Fallon, by his bond, dated the 16th day of the same month of September 1809, became bound to Alexander Colvin in the penal sum of 5000l., with condition to be void if Fallon should insure the sum of 20001, in some of the insurance offices in London or Westminster to answer Col.vin's debt, and pay the sum of 2,500l. and interest, at 5 per cent. per annum, by annual instalments of 500/. each;* and that Charles Fallon purchased a captain's commission in the 11th regiment of dragoons, and deposited his commission with the said Richard Campbell Bazett, in whose hands it still remained. The Master also found, that, by indenture, dated the 11th day of September 1812, and made between Charles Fallon of the first part, Richard Campbell Bazett of the second part, and the several persons whose hands and seals were thereunto set and fixed, being creditors of the said Charles Fallon, of the third part, Charles Fallon agreed that his captain's commission should remain in the hands of Richard Campbell Bazett for securing payment of the sum of 800l., being the amount of a composition entered into by Charles Fallon with his said other creditors, provided there should remain in the hands of Richard Campbell Bazett sufficient money for that purpose, after satisfaction of all his demands on Charles Fallon; † and that, on the 30th January 1815,

In the course of the argument, it appeared, on reference to the bond, that the report did not state the tenor of the condition accurately. The condition, in the events which happened, (for it was in an alternative,) was, that Fallon should at the end of a year sell the commission, and out of the proceeds of the sale repay the 2,500l.

+This indenture declared also, that if the composition was not paid within a year, Bazett should

Richard Campbell Bazett gave the plaintiffs notice of his claim, and on the 1st of February following, sent, them a copy of the indenture of the 11th day of Septem

ber 1812..

The Master further found, that Fallon took the benefit of the insolvent act after the institution of the suit; that one S., who, in an order of the insolvent debtor's court, was mentioned as his assignee, had as such assignee brought in a claim to the fund in dispute, but that no assignment to S. of Fallon's estate and effects had been produced.

Upon this report the cause was heard, on further directions, by Sir Thomas Plumer. ‡

Mr. Shadwell was for Bazett:

Mr. Horne, for Fairlie, Bonham and Co., and the other creditors, who were particularized in Fallon's letter of the 12th of January.

For Bazett, it was contended, that, as an officer might sell his commission, so it was lawful for him to pledge it, and to contract with respect to the money which might afterwards be raised by selling it; that Fallon, both by his deposit and by his contract, had bound the money; and that it was not competent to him to make an assignment of any part of that money inconsistent with his prior engagements.

On the other hand, it was answered, that specific creditors, by the paper writing of the 12th of January, obtained an assignment of a certain part of an existing fund; that they knew nothing of and had no concern with the engagements between Fallon and Bazett; that there was no authority for holding that an officer could deposit his commission; and that such a deposit could create no lien except on the paper or parchment actually deposited.

No argument was permitted for the assignee under the insolvent debtor's act; because the title of the person claiming to be such assignee did not appear upon the report.

The Master of the Rolls was clearly of opinion, that Bazett could not succeed in his claim. His lien, said his Honour, if

have authority to sell the commission, and to satisfy, out of the purchase-money, first his own debt, and then the composition.

In December 1823. ̧

he had any, must have arisen either from deposit or from contract. The deposit was nothing; for an officer had no right to deposit his commission. It was the authority under which he acted; he could not separate it from himself, or by any species of assignment or mortgage, give another an interest in it. In common language, indeed, an officer was in certain cases spoken of as selling his commission. But the transaction, so spoken of as a sale, proceeded entirely from the special permission of the crown.

Then with respect to contract, that can bind only those who are parties to the contract; nor, except as between those parties, can it bind that which is the subjectmatter of the contract. It can have no effect upon the rights of third persons, unless they are volunteers, or have notice. But Fairlie, Bonham and Co., and the others who stand in the same situation with them, are bona fide creditors; and it is not stated, that they had notice of the contract between Fallon and Bazett. Consequently their rights cannot be touched by that contract.

Under these circumstances, the letter of the 12th January 1815, is an equitable assignment of Fallon's share in action; and the creditors specified in it are entitled to priority.

The decree directed the principal, interest, and costs, of Fairlie, Bonham and Co., Armit and Borough, and Duberley, to he paid, and that the residue of the fund should be transferred to Bazett.

A petition of rehearing was presented by the assignee under the insolvent act, complaining of so much of Sir Thomas Plumer's decree as directed the residue of the fund to be paid to Bazett, and praying that the petitioner might be declared entitled to that residue for the purpose of distribution among Fallon's general creditors.

Mr. Roupell, appeared for the petitioner: Mr. Horne and Mr. Shadwell, contrà. The respondents admitted by their counsel, that the petitioner was the assignee *

*The assignment was in court. The reason why it had not been produced before the Master

E