A bill will not lie to carry an award into exe without notice, &c. afterwards gains a legal right in them, having advanced his money at the time upon the credit of those very goods, as fuch purchafer has an equal equitable lien, and the law too on his fide, his right will prevail; but it is otherwife where the creditor at the time his demand firft accrued, relied only on the perfonal fecurity, and general credit of his debtor; there any legal right which he obtains afterwards in any of the effects of his debtor, must be fubject to every such truft or equitable lien, which they were liable to in the hands of the debtor himself, and fuch creditor can only stand in the place of his debtor; as in the cafe of bankruptcy, the affignees, &c. tho' perhaps equally creditors with any others (who have before obtained an equitable lien on any of the bankrupt's effects fpecifically) and have the law on their fide too, the property of the bankrupt's effects being vested in the affignees, yet they must only stand in the place of the bankrupt, and take his effects fubject to all those equitable charges, which they were liable to in the hands of the bankrupt. Vide Salk. 449. Taylor v. Wheeler, and Eq. Caf. Abr. 320. Burgh v. Francis. Mr. Noel e contra infifted that the creditors had no right to bring a bill to have this award carried into execution, not being parties to the fubmiffion, nor concerned therein, it being a matter altogether tranfacted between Fowler and Hamilton only; and therefore as the creditors would not at all be concluded by this award, but at liberty ftill to pursue their remedy as they thought proper, for the recovery of their debts, there was no reason why they should have any benefit from this award, be cause it happened to be in their favour; he relied likewife on the want of fufficient evidence on the part of the plaintiffs, to prove the acquiefcence of Fowler in the award, or even his knowledge what the award was; and indeed the only evidence to that purpose was his applying to the arbitrators before the award was finally made, to let him have part of the wine to carry on his trade with (which the arbitrators would not comply with), and his agreement afterwards with Hamilton to have the wines depofited in the hands of Hayward, but no evidence that he was present when the award was made, nor any other evidence that he was informed of the contents of it. Lord Chancellor: A bill to carry an award into execution when there is no acquiefcence in it by the parties to the subcution where the miffion, or agreement by them afterwards to have it executed, parties to the would certainly not lie; but the remedy to inforce a performfubmiffion do not ance of the award must be taken at law: It has been faid the acquiefce in it, nor agree after evidence here of Fowler's agreement to the award after it was wards to have it made, was not sufficient to found a decree on; but what he executed, but muft be inforced principally relied on was, that none of the plaintiffs, the creditors, were parties to the fubmiffion, nor did it appear that they were so much as privy at all to the tranfaction; and therefore, as they were under no obligation of abiding by the award, they ought not to have the benefit of it; and in reading over the award (which, at the time of making it, was taken down at law, in writing), he observed it was calculated only for the indemnity of Hamilton against the failure of Fowler, without any regard had at all to the creditors, there being no provifion made, that the wines should be fold, or otherwise employed for raifing money for the payment of debts of the plaintiffs: That though an agreement made between the two partners, and particular creditors, to appropriate a particular part of the partnership effects for the payment of those creditors, might create a lien on thofe goods fpecifically for the payment of their debts, in preference to the rest of the creditors; yet an agreement of that kind between the partners only, would certainly not difable any of the creditors from purluing their remedy at law against the effects of the debtor, any more than if no fuch agreement had been made. The bill difmiffed. (B) Foz what caules let alive. June the 18th, 1737. Upon appeal from the Rolls. Mary Medcalfe widow, and William Ives, William Ives and Ann his wife by cross bill, Plaintiffs. Mary Medcalfe and Richard Johnson and his wife, Defendants. Cafe 21. TH covenant in arti the wife's por HE bill in this cafe was brought to have a specifick per- A. and his wife formance of articles made on the marriage of the defen- cles before mardant, Richard Johnson, whereby the faid defendant and his wife riage, in confidecovenanted, in confideration of 2000l. the wife's marriage por- ration of 2000 1. tion, to release all the right and intereft that might accrue to tion, to releafe them out of her father's personal eftate, by the custom of the all the right that city of London, he being a freeman, and alfo to fet afide an might accrue to award alledged to have been unduly obtained upon a fubmif- fa her's perfonal fion of the controverfies between the parties, concerning the eftate, by the cu right to this orphanage part. As to the first part of the cafe, the defence made for the defendant was, that the customary part being a mere poffibility, and contingency, which might or might not happen, it could not be released, and if it could, that, at the time of the articles, the wife was an infant, and so not bound by them; befides that the 2000l. was no confideration for releafing fuch an intereft, the wife's father, one Ruffel, having died worth upwards of 20,000/ Lord Chancellor: Though hardships may happen on my determination, yet thefe are confiderations too loose either for a judge at law, or in this court, to lay any weight upon; and I must determine according to the facts, by the rules of law, and of this court: In this cafe there appeared to be a valuable confideration for the agreement in the articles, because, at the time the 20007. was given, the defendant's wife was intitled to no part of the eftate of her father, and it was given for her advancement in the world, and it is highly reasonable that fuch them out of her ftom of London. The hufband is bound by his co venant, and tho' the wife was un der it is age, yet a matter that accrues to him in the right of his wife, and he may release it, and his release will bind her. The husband's covenanting to tinguishment of part, and if fo, of the father as if it had never been charged, and therefore fuch kind of articles fhould be carried into execution, and that when a father is bountiful to his children in his life-time, that he fhould have his affairs fettled to his own fatisfaction. As to the objection of the customary part being a poffibility, and merely in contingency, it is of no weight, for there is no doubt but it might be released in equity; but here it is a covenant which the defendant is bound by in all events, and it is no objection to fay, the wife was under age; for though in this refpect, if the hufband were dead, the articles would not bind her, and she would by furvivorship be intitled to the customary fhare, as a chofe in action not recovered, or received by the husband; yet he being alive, it is a matter that accrues to him in right of his wife, and he may release it, and his release will bind her; and therefore it was reasonable he fhould perform his covenant. I found my opinion too on an old law well known in the city by the name of Jud's law, whereby a husband was authorized to agree with the father for the wife, though fhe was under age. Upon this another queftion arofe, Whether the orphanage fhare, fo to be released by the defendant, fhould fall into the release, is an ex- dead man's part, and go wholly according to his difpofition the wife's right of the refidue of his eftate, as a thing purchased by him; or, to the orphanage Whether it fhould fall into his perfonal eftate, and be diftrileaves the estate buted with it according to the custom? And at first I inclined to think that it was in the nature of a purchase by the father, and fo wholly in his power to make a difpofition of it by his will; but, upon hearing the Attorney-general to this must be confider- matter, I am of opinion, that as in equity things covenanted ed as a part of his general perto be done, are as things actually done, it must be confiderfonal eftate, and ed as if the husband had actually released, and fo is an exnot go wholly to tinguifhment of his wife's right to the orphanage part, and cutor, as a part being an extinguishment of the right, it leaves the eftate of of the d. ad man's the father as if it had never been charged with it, and must therefore be confidered as a part of his general personal estate, and not to go wholly to the executor of the father, as a part of the dead man's fhare. Cafes cited, 1 Vern. 6. 2 Vern, 665, 666. 1 Will. 644, 645. 2 Will. 527. the father's exe Bare. Where arbitra or where they each party, a As to the award, he decreed that it ought to be set aside, in tors are deceived, respect that the articles were fhewn only to one of the arbimake their award trators, and not to both, and he to whom they were not clandeftinely, fhewn fwore, that if he had feen them, he believed he should without hearing not have made fuch award: His Lordship held therefore, that court of juftice it was unfairly obtained, but agreed to the general rules in will interpofe, cafes of awards, that the arbitrators are judges of the parties own chufing, and that therefore they cannot object against the award as an unreafonable judgment, or as a judgment against law; but where, as in the prefent cafe, arbitrators are deceived, or where they make their award clandeftinely, without hearing each party; in fuch cafes a court of justice ought to interpofe to fruftrate and avoid fuch awards. and avoid fuch award. Chancery cannot In this cafe the plaintiff's bill was offered to be read as evi- Though a bill in dence for the defendant, and being objected againft, it was be received in faid, per Lord Chancellor : At law, the rule of evidence is, that evidence at law, a bill in Chancery ought not to be received in evidence, for it yet in this court it may be read, is taken to be the fuggeftions of counfel only; but in this and has been of court it has been often allowed, and the bill was read. . ten allowed as His Lordship reverfed the order of difmiffion, and declared evidence. that by the articles of the 4th of February 1703, the defendant Johnson is to be confidered in equity, as barred of any customary fhare in right of his wife, or otherwife, of the perfonal eftate of the teftator William Ruffell. CA P. XV. Bankrupt. (A) Concerning the commiflon and commiñoners, P.67; (B) Rule as to the certificate. P. 73. (C) Kule as to affignces. P. 87. (D) Joint and separate commimen. P. 97. (E) Kule as to his executo2, 02 where he is one hims felf. P. 100. (G) Rule as to compofition. P. 105. (H) Kule as to creditors. P. 106. (1) Contingent debts. P. 113. (K) Kule as to d2awers and indozfers of bills of ex change. P. 122. (L) Where afgnees will be charged with intereft. P.132, (M) Rule as to partnership. P. 132. (N) Kule as to colts. P. 138. (0) The construction of the repealing clause in the tenth of Queen Anne. P. 141. (P) Kule as to dividends. P. 143. (Q) Commiff.on fuperfeded. P. 144 (R) Kule as to bankrupt's attendance on affignees. P. 148, (S) Kule as to an apprentice under a commiflon of bankruptcy. P. 149. (T) Kule as to discounting of notes. P. 150. (V) Rule as to a petitioning creditoz. P. 151. (U) Kule as to notes where interef is not exp2elf, ED. P. 154. (W) The construction of the Statute of the 21 Jac. 1. c. 19. with respect to a bankrupt's poßfeilion of goods after affignment. `P, 154. VOL. I. F (X) Kule (X) Kule as to copyholds under commillions of banks rupts. P. 187. (Y) Where affignees are liable to the fame equity with the bankrupt himself. P. 188. (Z) What is 02 is not an act of bankruptcy. P. 193. (Aa) Kule as to fales befoze commiffioners. P. 202. (Bb) Rule as to examinations taken before commiflions ers. P. 203. (Cc) Who are liable to bankruptcy. P. 206. (Dd) Rule as to his allowance. P. 207. (Ee) Rule as to folicitors in bankrupt cafes. P. 209. (Ff) Kule as to the fale of offices under commillions of bankruptcy. P. 210. (Gg) What shall 02 shall not be said to be a bankrupt's eltate. P. 216.. (Hh) Where there is a truft foz a bankrupt's wife. P.216. (li) What is a trading to make a man a bankrupt. P. 217. (Kk) Kule as to acts of parliament relating to bankrupts. P. 219. (L1) What is 02 is not an election to abide under a com million. P. 219. (Mm) kule as to profecutions against him foz felony in not furrendering himself. P. 221. (Nn) Rule as to contingent creditozs in respect to divis Dends. P. 222. (Oo) Kule as to mutual debts and credits. P. 223. (PP) Whether during his time of privilege, he may be taken by his bail. P. 238. (Qq) Rule as to a certificate from commiflioners to a judge. P. 239. (Rr) The effect of acquiefcence under a commiflion. P. 243(S) Rule as to debts carrying intereft under a ocmmiffion of bankruptcy. P. 244 (Tt) Rule as to principals and their facto2s. P. 245. (Vv) Rule as to annuities under commiflions of bank, ruptcy. P. 251. (Uu) Rule as to taking out a fecond commillion. P. 252. (Ww) Kule as to an open account under a commission of bankruptcy. P. 254. (Xx) Rule as to principal and furety. P. 254. (Bbb) Lule as to deptfits under a commission of bankruptcy. P. 259. (Ccc) Kule as to relation under commissions of bankrupt ry. P. 260. (Ddd) Rule as to an extent of the crown. P. 262. (Eee) hule as to creditoss affenting 02 diffenting to a cerficate. P. 263. (Fff) Bankruptcy no abatement. P. 263. (Ggg) Arrekt upon a Sunday for a contempt regu'ar. P.264 I (A) Con |