be paid to the plaintiff as widow and perfonal reprefentative of the late Earl.

LORD CHANCELLOR.-I am clear that the takers of the eftates (notwithstanding the claufe) were tenants in tail; and, alfo, that where a term is out-flanding in law, to raise a fum of money, and another perfon will pay that fum, eo nomine, that the perfon fo paying has a right to ftand in the place of the creditor.

If it is paid by the holder of the fee, the Court confiders it as the debtor paying the debt, and therefore will not keep the term out-standing; but it will be a term to attend the inheritance, and he may make any ufe he pleafes of it as fuch but, as between his real and perfonal representative, it will, in the hands of the heir, be a payment of the debt by the debtor.

But the Court has gone further; for in the cafe of tenant in tail, where there are remainders beyond to other perfons, it is not fo diftinctly the debtor's paying the money; but the Court has treated it in the fame manner, because he is competent to make the estate, a fee: therefore he is, faid to reprefent the fee. In that view, the Court confiders the payment by the tenant in tail, the fame as if it was paid by the tenant in fee; and the term fhall attend the inheritance: but if the tenant in tail gives a demonstration that he intended the term to be burdened with the debt, it fhall remain charged; but it requires proof, on his part, to fhew that the term is out-ftanding.

Where a tenant for life pays a debt charged on the inheritance which he cannot make his own, he stands in the place of the creditor: bat, from confidering the circumftances in which the eftates are limited, a prefumption may be raised, that though he paid off a charge upon an eftate which he had for life only, circumftances may be laid before the Court, to fhew that he meant to difcharge the estate. Therefore, from the fituation of the eftate, it fhall be prefumed, that he meant to pay the debt, or not.

Taking this as the rule; the A&t of Parliament has fettled thefe eftates in inheritance unbarrable. Every taker takes, under it, an estate of inheritance; but the Act contains a prohibition of alienation. With respect to intereft, it might be a queftion, Whether it would not be contrary to the faith under which he holds it, for any taker to fuffer a charge to remain on the estate?

The rule laid down applies to the estate at bar as strongly as to any eftate for life.

The

The perfon for whom the charge is to be raifed, has no remedy for the intereft against the eftate; but if the perfonal eftate of the tenant in tail was fufficient, the Court would make it pay: because it was a fraud not to keep it down. A tenant in tail, holding under the reftrictions in the Act, could not alienate by enlarging the estate. The eftate of the tenant in tail (as of tenant for life) muft, therefore, keep down the charge.

Then, as he could by no means make the estate his own, it makes it equal to him as if it was an estate for life. By paying the charge, he pays a debt upon a fund which he cannot make his own.

Then the question is, Whether there are circumstances, in this cafe, to fhew that he meant the eftate to be difcharged?

I ftill lay it down to belong to thofe who would exonerate the estate to fhew that it was to be exonerated.

Then, in 1742, he pays off £.5,000, the fortune of the fifter married into the family of Aiton, and takes a release from her to fhew, that he did not take the money aliunde. It is a discharge, against her, to Lord Shrewsbury and the trustees.

But it is difcharged by the payment of Lord Shrewsbury. Nobody has contended it would be impoffible for Lord Shrewsbury to claim it.

Accordingly, in 1751, another tranfaction takes place, which would otherwife have been a fraud upon the estate. It was understood, by the parties to that tranfa&tion, that the fum paid by Lord Shrewsbury was a fum in which the eftate was indebted to Lord Shrewsbury.-Then, Lord Shrewsbury, as tenant for life, meant to fell the advowfon for 40 years (if his three fons fhould fo long live) to fecure a prefentation, and, that it might not be determinable on the death of Lord Shrewsbury, it was done out of the term of 99 years in trustees, which did not depend on the life of Lord Shrewsbury. The trustees infifted that the money paid fhould be fo upon the recital that the whole was due to Lord Shrewsbury. This is a proof that he did not confider the eftate as exonerated. There is no kind of prefumption, arifing from this tranfaction, that he meant to pay the charge to the parties; it was confidered he might do what he pleased with the money. Then it is faid, that the length of time which has elapfed fhews that he meant to dif charge the eftate; and it is affimilated to a waver of right.Where a man out of poffeffion acquiefces, and the acqui

efcence

efcence is accompanied with circumstances not otherwife to be accounted for, but by prefuming fuch an intention it must be prefumed; but here the intention only was that money, which would bear 5 per cent. intereft, should be paid off. It seems to be the cafe of money paid by a person not liable to pay it, in difcharge of the eftate; unless there is proof that he meant to discharge it. For nine years it appears, he did not mean to difcharge it; and, fince that time, it stood doubtful what his intentions were.-' -The money must, therefore be raifed as prayed by the bill.

This caufe was re-heard, at Lincoln's-Inn-Hall, the 19th of July, 1790; when Mr. Solicitor General and Mr. Mitford were heard for the plaintiff; Mr. Mansfield, Mr. Lloyd, and Mr. Graham, for the defendant: but nothing material was added to the former argument and, Lord Chancellor continuing of the fame opinion, both on the general principle and the particular circumstances of the cafe,

The decree was affirmed.

WEST V. PRIMATE OF IRELAND.

Sir Septimus Robinfon directed his executor "to bequeath 1000 guineas to Lord Cantelope, for the use of his feventh, or youngest child, in case he should not have a feventh child living.".

When Sir Septimus died, Lord Cantelope had fix children living, there having been another who was dead. The plaintiff was the next born after Sir Septimus's death, and was baptized Septimus.

wards.

Several more children were born after

The question was, Whether the youngest of these last born, or Septimus, the plaintiff, were entitled to the legacy?

LORD CHANCELLOR.-The plaintiff being, in fact, the eight child born, cannot take by the defcription of feventh child. The legacy belongs to Lady Catharine as young child.

PITT

PITT. LORD CAMELFORD.

Pinkney Wilkinson, by a codicil to his will, reciting, that he was poffeffed of about £.7000 Navy Bills, gave the fame to his executors, to receive the intereft, and to lay the fame out in the funds, to fuch ufes as his daughter, Ann Pitt fhould appoint. At the time of making the codicil, he had .7029 Navy Bills; he afterwards purchafed other Navy Bills, and alfo Victualling Bills, and fold others. At the time of his decease, he was poffeffed of only £4,300 Navy Bills, but also various Victualling Bills.

The question was, Whether the Victualling Bills were included in the legacy, it being proved that in the Stock Exchange the Brokers confidered Viaualling and Navy Bills as fynonymous?

LORD CHANCELLOR faid, if ever there was a fpecific legacy, this was fo: if they had continued, and other legacies had exhausted the perfonal eftate, these could not have abated. The funds purchased with the Navy Bills of which teftator was poffeffed at his decease, muit pafs.

TAWNEY, Knt. v. CROWTHER and Another:

Defendant was feifed of an inn at Benfon, which the plaintiff employed an Attorney at Oxford to treat for the purchase of, who agreed to give, and Crowther to take,

1100 and it was agreed between them, that the agreement fhould be reduced into writing, which happened not to be done; but the defendant declared, that his word was as good as his bond, and that he should be in Oxford on the Tuesday following, and would then fign the agreement: but not coming, he wrote a letter, in which he stated his having been from home, and acknowledged that he said his word fhould be as good as a bond, and that there was time enough fufficient from thence till Michaelmas to settle every thing; and again repeated once more, that his word should always be as good as any fecurity he could give.

The

The question was, 'Whether this cafe was within the ftatute of frauds?

LORD CHANCELLOR.-The letter is fufficient to prevent the operation of the statute.

LoWTHIAN. HASEL.

This was a question, Whether a creditor by mortgage, who, also, was a bond-creditor for £.1834 35. fhould tack his bond-debt to his mortgage, against other specialty-creditors?

LORD CHANCELLOR.The only reafon why the mortgagee can tack his bond to his mortgage, is to prevent a circuity of fuits: it is folely matter of arrangement, for that purpofe; for, in natural justice, the right has no foundation. The principle explains the rule; and, therefore, it can go no further: the creditor having, another specific fecurity, cannot give him in justice any priority. There being no foundation in juftice, the only queftion is, Whether the Court is in the practice of doing it? And it has not done it in any cafe but that of the heir, and merely to prevent circuity.

MOLESWORTH against MOLESWORTH.

The Honourable Coote Molefworth, by his will, made in 1782, gave to Richard Molefworth and Nathaniel Nicholls, their heirs, &c. all his lands, &c. real and perfonal, upon truft, to raise and pay fuch fums of money as they, from time to time, fhould think proper, for the comfortable fupport and maintenance of his wife, during her life, directed his trustees to apply £3000 to and for the fole and feparate ufe of his grand niece Henrietta Maria Molefworth, fubje&t nevertheless to the controul and difcretion of his trustees thereby invefted in them, (that is to fay, that if the faid Henrietta Maria Molefworth should hereafter, in any flagrant inftances, misbehave herself, or fhould marry againft, or without, the advice and confent of

his