Lingham, in consideration of another sum of 20007., granted to one Ralph Ellis another similar annuity of 2221. 48. 5d. during the lives of the said Ralph Ellis, and his sons Henry Ellis and Ralph Ellis, and the survivors and survivor of them: and, for securing the same, he demised to the said Ralph Ellis the same premises, including Lingham's Warehouses, for the term of forty-three years from the said 10th of January, 1811, if the said Ralph Ellis, and his sons Henry Ellis and Ralph Ellis, or the survivors or survivor of them, should so long live.

By indenture of assignment, bearing date the 14th of March, 1817, the said William Lingham assigned the said premises for the whole residue of his term and interest therein, subject to the said annuities and terms of years for securing the same, to John Kew and William Kew, as a security for a certain debt of 21687. 68. 5d. then due from the said William Lingham to the said Messrs. Kew, and interest; and also to secure such further sum and interest, not exceeding 43177. 108. 6d. (being the amount which the said John Kew and William Kew were liable to pay to the Bank of England on account of the said William Lingham), as the said John *Kew and William Kew might pay *127] to the Bank of England for the said William Lingham. By an agreement in writing bearing date the 10th of May, 1824, made between the said John Kew and William Kew of the one part, and Thomas Lingham, a son of the said William Lingham, of the other part, reciting that there remained due to the said John Kew and William Kew, upon or by virtue of their said assignment, by the said William Lingham, the sum of 57051. 38. 8d., principal money, with the sum of 13837. 98. 6d. for interest on the same, and that the said Thomas Lingham had agreed with the said John Kew and William Kew for the purchase of the said debt of 57051. 38. 8d. and all interest then due and thereafter to become due thereon, at the price of 11507.; and reciting that he had paid the sum of 550l. in part of the said purchase-money,the said John Kew and William Kew severally agreed with the said Thomas Lingham, that, on payment of the further sum of 6007., they would, at the costs of the said Thomas Lingham, and by such assurances as he or his counsel should require, assign to him, his executors, administrators, or assigns, the said debt of 5705l. 38. 8d. and all interest due and to become due in respect thereof, and also the said indenture of the 14th of March, 1817, and all benefit and advantage thereof, and of the trusts therein contained: and the said Thomas Lingham agreed on or before the 1st of July then next to pay the said sum of 6001. upon having such assignment executed as therein before agreed.

Messrs. Kew, by deed bearing date the 25th of May, 1824, assigned all their personal estate to George Augustus Lingham, Charles Dixon, and John Abbott, for the benefit of their creditors. They had previously deposited the assignment of Mr. William Lingham's leases with

Messrs. Dixon & Morgan, as a security for a considerable debt owing to them.

[*128

*William Lingham died in 1825, having made his will, and thereof appointed his sons, the said Thomas Lingham and George Augustus Lingham, and his daughter, Sarah Crowley, executors and executrix. Mrs. Crowley renounced probate; and the two sons duly proved the will on the 14th of November, 1825.

On the 3d of December, 1825, Thomas Lingham became bankrupt; and William Simpson was appointed sole assignee of his estate and effects, under a commission of bankruptcy issued against him; and the usual assignment was made to the said William Simpson.

Shortly after the death of William Lingham, and before his will was proved, the ground-rents due from William Lingham in respect of the premises comprised in the annuity-deeds being greatly in arrear, an arrangement was come to for discharging the same, and for other matters, by an agreement bearing date the 25th of October, 1825, between the said John Thackeray and Ralph Ellis, and the said Thomas Lingham, George Augustus Lingham, and one Richard Ellis, of which the following is a copy:

"In consideration of each of the undersigned John Thackeray and Ralph Ellis having, at the instance and request of us the undersigned Thomas Lingham, George Augustus Lingham, and Richard Ellis, and each and every of us, agreed to advance and pay to Mr. R. Haines as the agent of the ground-landlords of the premises on lease to the late Mr. William Lingham, half (making together the full amount) of the ground-rents due at Michaelmas last, and of one year's insurance to that time, each moiety amounting to the sum of 3421.; and in order to induce each of them the said John Thackeray and Ralph Ellis so to do, we, the said Thomas Lingham, George Augustus Lingham, and Richard Ellis, do hereby jointly and severally engage and undertake with each of them the said John Thackeray and *Ralph Ellis, that the will of the said William Lingham shall be [*129 proved in the Prerogative Court of Canterbury within fourteen days from this time; and that one moiety of the money now due to the estate of the said William Lingham from the commissioners of His Majesty's Customs for rent of part of the said premises, and also one moiety of all other rents now due and hereafter to become due in respect of the said premises, shall in the first instance be applied in payment to each of them the said John Thackeray and Ralph Ellis of his said sum of 3427., with interest thereon, at the rate of 51. per centum per annum, from the date of the advancement thereof by each respectively of them the said John Thackeray and Ralph Ellis; and that the said leasehold premises shall be chargeable with the same sums and interest; and also that both moieties of the residue of the same rents and profits shall in the next place, and after payment of the

ground-rents and taxes payable thereout, be applied in manner following, that is to say, one moiety in payment and discharge of the present arrears of the annuity granted to each of them the said John Thackeray and Ralph Ellis by the said William Lingham, and charged upon the same premises, and all the future and growing payments of the same annuity; and that possession of such parts of the said leasehold premises as are in hand shall this day be delivered to the said John Thackeray, as having the prior legal title to the possession or receipt of the rents of the premises; but all the rents and profits applicable to the payment of the said annuities or either of them shall be applied in payment and discharge of both of the said annuities pari passu, that is to say, by an equal pound-rate: And this undertaking shall be a sufficient authority and consent and direction to and for the tenants of such parts of the said leasehold estates as are in the possession of tenants, for paying their arrears and future and *growing payments of their rents *130] to the said John Thackeray, to be by him applied for the purposes aforesaid: And also that the costs and charges of the said John Thackeray and Ralph Ellis of and occasioned by the negotiation and attendances upon, and correspondence with, Mr. Broughton, Messrs. Ellis & Co., and Messrs. Sherwood & Son, which have led to this arrangement, and also the costs of this undertaking, and consequential thereon (not exceeding in the whole the sum of 6007.), shall be paid and discharged out of the rents and profits of the said leasehold estates, and shall be a charge on the said leasehold estates and the rents and profits thereof; and that, for the purpose of securing the said several sums of 3427. and 3421., and the said costs and charges, an underlease or underleases, and not an assignment by way of mortgage, and at a peppercorn-rent, shall, at our costs and charges, be executed to the said John Thackeray and Ralph Ellis respectively, or to a trustee for them and him respectively; but that the sum to be secured to each of them the said John Thackeray and Ralph Ellis for the said sum of 3421. and his share of such costs and charges, shall not exceed in the whole the sum of 9421."

In pursuance of the said agreement of the 25th of October, 1825, the said John Thackeray, on or about the date thereof, paid one of the said sums or moieties of 3421., and also the sum of 631. 38. 73d., being a moiety of the costs and charges mentioned in the said agreement.

By another memorandum, made on the said 25th of October, 1825, the said George Augustus Lingham and Thomas Lingham authorized, empowered, and requested the said John Thackeray and Ralph Ellis to pay to the rector of the parish in which the said premises included in the said annuity securities were situate, certain arrears of tithe due in respect of and chargeable upon the said premises, and agreed that they might retain what they *should so pay out of any moneys which *131] might come to their or either of their hands under their several securities, from the said late William Lingham, or under the firstmentioned agreement of the 25th of October, 1825.

The said John Thackeray, in pursuance of this request and agreement, paid to the said rector sums amounting to 901. 28. 8d., being a moiety of the said arrears of tithe.

The said Ralph Ellis, in pursuance of the said agreement of the 25th of October, 1825, and memorandum of the said date, made similar payments of other sums or moieties of 3421., 637. 38. 74d., and 907. 28. 8d., at the same times and on the same accounts as the payments so made by the said John Thackeray.

By an indenture under seal, bearing date the 11th of October, 1826, made between the said George Augustus Lingham and Thomas Lingham, therein described as executors of William Lingham, of the first part, Stover Smith, sole assignee of the estate and effects of the said George Augustus Lingham, under a commission of bankruptcy against him, of the second part, William Simpson, sole assignee of the estate and effects of the said Thomas Lingham under the said commission of bankruptcy against him, of the third part, the said John Thackeray and Ralph Ellis of the fourth part, and Joseph Barber (the plaintiff) of the fifth part,— reciting, amongst other things, that, in pursuance of the said agreement of the 25th of October, 1825, the said John Thackeray and Ralph Ellis had severally paid the said sums of 3421. each, and that the said John Thackeray had been duly let into, and had ever since continued in, the possession of such parts of the said leasehold premises as were in hand, and into the receipt of the rents and profits of such parts of the said premises as were tenanted,—the above-named plaintiff became tenant to John Thackeray of a portion of the premises comprised in the annuitydeeds until the 25th of March, 1827, and thenceforth as yearly [*132 *tenant, but so as not to exceed twenty-one years from the date of the deed, and to be determinable by a half-year's notice by the said John Thackeray or the said plaintiff, as therein mentioned, at a yearly rent of 4091. And by the said indenture it was agreed and declared between the said Thomas Lingham, George Augustus Lingham, John Thackeray, and Ralph Ellis, that the said yearly rent of 4097. reserved to the said John Thackeray as aforesaid should be paid, applied, and disposed of, in the first place in payment of the ground-rents, and all taxes, rates, tithes, and assessments which should from time to time become due in respect of the premises thereby demised, during the term thereby granted; in the second place, in payment of 1507., and no more, being a sum which the said John Thackeray and Ralph Ellis had agreed might be paid out of the rents and profits of the said premises towards putting the same in repair, and to be applied for that purpose and no other; and lastly, in such payments, and for such purposes, as according to the true intent and meaning of the said agreement bearing date the 25th day of October, 1825, were agreed to be paid. [A copy of this deed accompanied the case.]

By indenture of the 19th of June, 1827, made between Messrs. Kew

of the first part, Messrs. Dixon & Morgan of the second part, George Augustus Lingham, Charles Dixon, and John Abbott, assignees of Messrs. Kew, of the third part, William Simpson, assignee of Thomas Lingham, of the fourth part, Thomas Lingham of the fifth part, and Joseph Barber, the plaintiff, of the sixth part (but which was not executed by the said George Augustus Lingham),-reciting the said agreement of the 10th of May, 1824, between the said John Kew and William Kew of the one part, and the said Thomas Lingham of the other part; and reciting the bankruptcy of the said Thomas Lingham, and the appointment of the said William Simpson as assignee as aforesaid; and that the *plaintiff had contracted with the said Messrs. *133] Dixon & Morgan, and with the said William Simpson, for the purchase of their several and respective rights and interests as thereinbefore recited, of and in the said debt secured by the said deed of mortgage of the 14th of March, 1817, which then amounted to the sum of 56927. 198. 11d., and of all interest due and to become due in respect thereof, and of the said securities for securing the same, at or for the price of 500,-it was witnessed that the said premises comprised in the said annuity deeds were (in consideration of 500l. paid by the plaintiff, viz. one moiety thereof to Morgan & Dixon, and the other moiety to William Simpson) assured in manner therein expressed, by the parties of the first, second, third, fourth, and fifth parts, to the plaintiff for the residue of the said leases granted to the said William Lingham, subject to the annuities to Messrs. Thackeray and Ellis, and to the said underleases for securing the same,-upon trust for securing to the plaintiff the principal money secured by the indenture of the 14th of March, 1817, and interest. [A copy of this deed also accompanied the case.]

By an indenture made and dated on the 25th of April, 1839, between the said George Augustus Lingham and Thomas Lingham, described as executors of William Lingham, of the first part, Thomas Turnbull of the second part, and the plaintiff of the third part,—and which recited and recognised, amongst other things, the said agreement of the 10th of May, 1824, and the said payment by the said Thomas Lingham of the said sum of 550l. in part payment for the purchase of the said debt of 57051. 38. 8d. and interest, and the indenture of the 19th of June, 1827,-certain premises, being other than those included in the said annuity securities, were conveyed to the plaintiff, as therein mentioned, in consideration of the sum of 9601., part of the mortgage debt secured by the said deed of the 14th of March, 1817, and *claimed by *134] the plaintiff to be due from the said executors of the said William Lingham to him the plaintiff under and by virtue of the said last-mentioned deed, and of the said agreement of the 10th of May, 1824, and deeds of the 25th of May, 1824, and the 19th of June, 1827. And the said indenture contained a proviso that nothing therein contained should be construed, deemed, or taken in any manner to prejudice or other