the tenant in tail in remainder, has been taken in the suit in which the first tenant for life in remainder is the plaintiff; and the question is, whether, without proof or suggestion of the death, or inability to be examined in this suit, of the witnesses examined in the other suit, their depositions shall be read in this suit. I am of opinion, that I am not required by authority, and that I ought not on principle, to allow the evidence so given to be so used.

The various questions in the cause were then discussed, and the greater part of them were directed to stand over until the result of certain cases which were settled for the opinion of a court of law should be known.

On the discussion as to that part of the prayer of Anthony Blagrave's supplemental bill which sought an injunction against mowing, it was objected, on behalf of Colonel Blagrave, that the restriction could not be enforced, being inconsistent with the nature of the estate, and not having validity given to it by any limitation over; and, further, that it would restrain and fetter the enjoyment of the property in perpetuity in a manner unknown and contrary to the policy of the law.

The VICE-CHANCELLOR, after directing cases for the opinion of a court of law on some of the points raised, granted, but, as his Honor said, with great reluctance, and in Anthony Blagrave's suit only, the injunction sought by the supplemental bill against mowing.

1847.

BLAGRAVE

v.

BLAGRAVE.

1847.

April 26th & 27th.

Whatever may

be the general rule, if there be any, as to extending indulgence to

a creditor un

der a composition-deed, who does not

fit of the

JOHNSON v. KERSHAW.

BY an indenture dated the 16th of March, 1844, made between George Wood of the first part, J. Kershaw, D. Ainsworth, and J. H. Hawes of the second part, and the several creditors of the said George Wood, whose names should be subscribed thereto, of the third part; the said George Wood assigned all his stock in trade, estate, and claim the bene-effects, to the said J. Kershaw, D. Ainsworth, and J. H. Hawes, as trustees upon trusts for sale, and after deducting expenses, to divide the produce unto and between the creditors of the said George Wood, who should come in and execute the deed or assent thereto, and prove their debts in manner therein expressed, within three calendar months deed within the after the date of the deed, and by the same indenture the several parties thereto of the third part, creditors of George not retract such Wood, released the said George Wood from all liability to them in respect of the several amounts due to them.

within the time specified therein; that rule

does not apply

to a creditor who actively

refuses to come in under, or

assent to the

time limited,

and who does

refusal within

that time.

The Court refused to receive

at the hearing

of a cause the deposition of an accountant containing a statement of the result of

his examination

of partnership account books,

where the books on

Several of the creditors of George Wood executed the deed, and the trustees entered on the duties of their trust.

By another indenture dated the 1st of April, 1844, made between J. Kershaw, D. Ainsworth, and J. H. Hawes (the trustees under the former deed) of the first part, George Wood of the second part, Richard Henry Wood of the third part, and two sureties for R. H. Wood of the fourth part, after reciting the former deed, and that an agreement had been entered into between the trustees and R. H. Wood, for more speedily winding up the trust, and that R. H. Wood had given to the trustees promissory notes for the several sums of 8s. in the pound on the several debts of evidence, the the creditors of the said George Wood, whose names were deposition of the accountant set forth in the schedule to the deed of April 1st, it was of his examina. witnessed, that the trustees, in consideration thereof, assigned to R. H. Wood the estate and effects of George ceivable as the Wood, comprised in the deed of the 16th of March, 1844, for

which he made
his statement
were not in
evidence: but,
semble, that
if the books
had been in

of the result

tion of them

would be re

evidence of a

person of skill.

his own use and benefit; and in consideration of such assignment to him, R. H. Wood and his sureties thereby covenanted with the trustees to satisfy all persons who were creditors of George Wood, at the date of the assignment of the 16th of March, whose names were not set out in the schedule to the indenture now being stated, and to indemnify the trustees and scheduled creditors from the creditors of George Wood whose names were not specified in the schedule; but it was stipulated that such indemnity should not extend beyond £1500 in the whole.

It appeared that long previously to March, 1844, George Wood had a partner named Wales, who had since died, and that he was at the determination of the partnership indebted to the estate of his deceased partner in an amount which was unascertained until the month of June, 1844.

It did not appear that George Wood ever communicated the existence of this debt to the trustees of the deed of the 16th of March, 1844, or to R. H. Wood; but it appeared that neither the administratrix of the deceased partner, who had subsequently married, nor her husband, had ever been a party to the deed of the 16th of March, 1844, nor were their names included in the schedule to the deed of the 1st of April, 1844.

Within the three months limited by the deed of the 16th of March, 1844, for George Wood's creditors to come and assent to the deed, viz. in May, 1844, the administratrix and her husband, through their solicitor, demanded payment of the whole balance due from George Wood to his deceased partner, from R. H. Wood, claiming that he was liable to pay them in full by reason of the covenant contained in the indenture of the 1st of April, 1844. Upon this demand a negotiation took place between the administratrix and her husband and R. H. Wood, and the partnership accounts were referred to an accountant, who, in June 1844, ascertained the balance due from G. Wood to his deceased partner to be £345.

1847.

JOHNSON

v.

KERSHAW.

1847.

JOHNSON

v.

KERSHAW.

The reference and negotiation ended in an offer being made on the 3rd of June, 1844, by R. H. Wood to the administratrix and her husband, to pay them £250 by way of compromise for the debt of £345, within six months, upon having an assignment of their interest in the late partnership effects.

This proposal was rejected by the administratrix and her husband, in consequence of the guarantees offered for securing payment of the £250 not being satisfactory to them, and after some further discussion the negotiation terminated.

In 1846, the administratrix and her husband instituted the present suit against the trustees and R. H. Wood, charging that under the above circumstances they were entitled to be paid the full sum of £345, or that the accounts of the trust estate should be taken, and that the plaintiffs should be declared creditors for the amount to be found due to them on taking such accounts, and that it might be declared that the trustees and R. H. Wood were severally liable to make good the £345 to the plaintiffs, the bill alleging that the plaintiffs had, within the three months limited by the indenture of the 16th of March, 1844, assented thereto.

R. H. Wood by his answer submitted, that G. Wood remained personally liable to pay the plaintiffs' debt, having concealed its existence from R. H. Wood, until after the 1st of April, 1844; and he also submitted that the plaintiffs having by their conduct refused to come in under the deed of the 6th of March, 1844, for three months, had no rights under it, nor to any benefit under the covenant in the indenture of the 1st of April, 1844, which was intended solely for the indemnity of the trustees.

The answer of the trustees was to the same effect.

G.Wood was made a defendant in consequence of the suggestion in the other defendants' answers that he remained personally liable, but no relief was prayed against him individually, and as against him the bill was set down upon bill and answer.

Mr. Wigram and Mr. Malins, for the plaintiffs.-The plaintiffs are entitled to fall back on their rights, under the deed of the 1st of April, 1844, in which R. H. Wood covenanted with the trustees to satisfy all the creditors of G. Wood, among whom are the plaintiffs, and as the trustees are as covenantees trustees for the plaintiffs, the plaintiffs are entitled to enforce their rights under the covenant in this Court. They cited Tomlinson v. Gill (a), Gregory v. Williams (b), Griffith v. Sheffield (c).

Mr. Russell and Mr. Randall, for the trustees.-The plaintiffs had no claim against the trustees under the deed of the 16th of March, 1844, for they not only did not assent to that deed, but on the contrary claimed adversely to that instrument. They cited Collins v. Reece (d).

Mr. Bacon and Mr. J. H. Humphreys, for defendant R. H. Wood. The plaintiffs cannot have any claim against R. H. Wood, because they did not come in under the deed of March, within the time limited by that deed; and the covenant by R. H. Wood in the deed of April, was a covenant by way of indemnity only to the trustees.

In answer to a question from his Honor, they declined at the bar to consent to pay the plaintiffs the £250 which was to have been paid under the agreement of June,

1844.

Sir Francis Simpkinson and Mr. Little, for G. Wood.— No case is made, nor is any relief asked against G. Wood, against whom the cause is set down upon bill and answer; and whatever be the result, no relief can be had against him, and he must be dismissed with his costs.

1847.

JOHNSON

v.

KERSHAW.