1840. Attorney-General v. East India Company. your last-named orators, as members of such court, act as trustees of the said charity, and are respectively bound to administer the funds of the said charity, for the benefit thereof." I do not see how persons can be bound to do what is impossible. If the plaintiffs represent that they are bound to administer, it must be taken that they can administer the funds of the charity and, if so, I do not see for what purpose the record is framed as an information and bill: for there is not a particle of individual interest asserted in it. What is asked is, that it may be declared that the lease was obtained, from the Coopers' Company, by fraudulent means, and that the same may be declared to be fraudulent, and may be set aside for the benefit of the charity: and also that it may be declared that the execution of the lease, was a breach of trust on the part of the persons constituting the court of assistants of the Coopers' Company at the time; and that the same may be delivered up to be cancelled; and that the full annual improved value of the premises comprised in the lease, may be received, by the Coopers' Company, and applied and administered by them for the benefit of the charity; so that, on the face of this record, there is no sort of relief asked by the persons named as plaintiffs, none whatever: and, if those persons do not ask any relief for themselves individually, then there is the objection which has been made ore tenus, namely, that the other parties who stand in precisely the same character, ought also to be parties to the record. *I think, however, that the record is wrongly con- [*388] structed; because persons have been made co-plaintiffs, who have asked nothing for themselves, and do not show that they are individually entitled to anything. The information and bill, therefore, cannot be sustained collectively: but, as there is, apparently, a case for relief, I will give leave to amend, for the purpose of converting the record into an information only. The persons, however, who are named as plaintiffs, must remain on the record in the character of relators, in order that they may be answerable for costs. 1840.-Rees v. Keith. REES v. KEITH. 1840 17th December. A woman being entitled to two sums, one secured by a mortgage in fee to herself, and the other, to a trustee for her, married. The mortgagees having been applied to, but being unable to pay the sums, the trustee paid them to the husband, The husband died, leaving the mortgages untransferred. Held, that he had reduced both sums into possession. ELEANOR, the wife of W. Rees, was, at and before the time of her marriage, entitled to 4501. secured by a mortgage in fee made to her by R. Reeve; and also to 8007. secured by a mort. gage in fee made, by S. Cushing, to P. Millard, in trust for her. The mortgagees having been applied to, by or on behalf of Mrs. Rees, shortly after her marriage, to pay the sums due from them respectively, but being unable to pay the same, Millard paid those sums to Mr. Rees: and Rees signed a memorandum whereby he agreed to transfer Cushing's mortgage to Millard. Mr. Rees afterwards died; and a suit having been instituted respect. ing his estate, the Master, on a reference made to him, [*389] found that the *payment of the 8007. to, and the signing of the memorandum by Rees, was a reduction by him, of that sum into possession; but that the payment of the 450l. to him, was not a reduction by him, of that sum into possession. Rees's widow and his excutors, both, excepted to the report. Mr. Jacob, Mr. Koe, and Mr. Walker, for the executors, said that this was not a suit between Mrs. Rees and Cushing, or be tween her and Reeve, but between her and her husband's estate, and that, for the purposes of this suit, it was quite clear that the 4501. as well as the 8007, had been reduced into possession: that it was held, in Doswell v. Earle, (a) that even an anticipated pay ment to the husband, was good against the wife surviving. (a) 12 Ves. 473. 1840.-Rees v. Keith. Mr. Wigram and Mr. Lovat, for Mrs. Rees, said that the debts still remained due from the debtors respectively; that Mr. Rees had no power to reduce either of them into possession during the coverture, as he could not have compelled the mortgagors to pay the sums due from them, without giving a re-conveyance of the mortgaged estates, which it was not in his power to do, as he could not have compelled his wife to join with him in levying a fine for that purpose: Purdew v. Jackson ;(a) Honner v. Morton.(b)-[THE VICE-CHANCELLOR: Suppose that the mortgagors had paid the sums due from them, to the husband.]—They might have sustained a bill, against the husband and wife, for a *reconveyance; but the husband could not have com- [*390] pelled his wife to join in a reconveyance; and, besides, no payment has been made by either of the mortgagors. The debts were due at the husband's death, and they still remain due from the debtors. If a suit had been instituted to compel the wife to join in reconveying the estates, she would then have been able to enforce her equity to a settlement out of the sums due on the mortgages; but, if the argument for the executors is to prevail, the wife will be deprived of the means of enforcing her equity. In Doswell v. Earle, the widow had acquiesced, for nine years after her husband's death, in the payment which had been made to her husband; but, in this case, there has been no acquiescence on the part of the widow. THE VICE-CHANCELLOR, in the course of the argument, said that the subject in dispute was a debt due to the wife; and, if it had been paid, there was an end to the claim; that the only question was whether the 800%., as well as the 4507., had not been paid, in fact, by Millard, for the mortgagors. His Honor delivered judgment as follows: This is a very simple point. Suppose that the mortgagor had said, to Mr. Rees: "I owe your wife 8002: here is a cheque for the money." Would not the debt be destroyed; and would not the wife be a mere trustee of the legal estate for the mortgagor? (a) 1 Russ. 1. (b) 3 Russ. 65, sec. 68 & 69. 21 1840.-Taylor v. Rundell. If a contrary doctrine were held, a mortgage in fee made to a woman who afterwards marries, could not be paid off during the coverture. [*391] *It seems to me, I confess, that, if the debt is paid, there is an end to the wife's equity.(a) 1840 21st December. TAYLOR v. RUNDELL. A. B. and C. were members and three of the directors of a mining company, and also lesees, in trust for the company, of mines in Nova Scotia, under a lease by which a portion of the profits was reserved to the lessor. The lessor's executors filed a bill against A. B. and C., for an account of the profits of the mines, and required them to set forth a list of all accounts, &c., relating to the mines in the possession of them or their agents. The defendants set forth a list of all the accounts in the possession of themselves and of the secretary of the company in London, adding that there were other accounts in the possession of the company's agent in America; that the defendants had no power to inspect or use the accounts of the company, except when sitting at the board of directors, or by an order of the board; and that they had not the permission of the board to use the accounts for the purposes of the suit, and they believed that the directors declined to allow them to use the same, or to give them any further information which might enable the plaintiffs to prosecute the suit. Held that the answer was insufficient, as it did not state that the defendants had, as they lawfully might, applied to the agent in America for a list of the accounts in his possession. THE plaintiffs were the executors of the late Duke of York. The defendants were members and three of the directors of a mining association, and were also lessees, in trust for the associ ation of mines in Nova Scotia.(b) under a lease granted by the Duke, reserving to himself, his executors, &c., a portion of the profits of the mines. By the covenants in the lease the defendants were bound to render to the Duke, yearly, such accounts as should be necessary to show the profits of the mines, and to (a) See Bosvil v. Brander, 1 P. W. 458. (b) These mines had been the subject of a suit between the Duke's executors and the Attorney-general, as representing the Crown. See ante, Vol. 8, p. 413. 1840.-Taylor v. Rundell. appoint a person, to be nominated by the Duke, to be a leges of a director, for the purpose of protecting the Duke's interest: and, shortly after the execution of the lease, a gentleman named Parkinson, was nominated and appointed accordingly. The bill was filed for an account of what was due, to the Duke's estate, under the reservation in the lease. It interrogated the defendants whether there were not in the possession of themselves or their agents, and, especially, of their agents in America, divers accounts, &c., relating to the produce and profits of the mines. The defendants annexed two schedules to their answer, which they said contained a full and true list of all the accounts, &c., in their possession or power, or in the possession or power of the secretary to the association in London. They added that the secretary was the agent of the association, and not their agent; and that they had no agent in America; but they believed that the association had an agent there, and that he had, in his pos session, many accounts, &c., relating to the matters in question; but, inasmuch as he was in the habit of transmitting, monthly, to the secretary to the association in London, copies of all the accounts and other documents relating to the mines, they believed that the documents in the secretary's possession (which were mentioned in the second schedule,) would furnish all the infor mation that could be obtained by inspecting the documents in the possession of the agent in America: that the defendants, being engaged in extensive mercantile concerns of their own, had paid but little attention to the affairs of the association; and that, save as therein set forth, they had no knowledge, other than was contained in the documents mentioned in the schedules, of any matters connected with the mines: that, in fact, the documents mentioned in the second schedule, were [*393]} not in the possession or power of the defendants, in any other sense than that they and the other directors, including Parkinson, when assembled as a board, were competent to order the same to be used and inspected by a vote of the board; that |