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![handle is hein.slavery/ssactsengr0732 and id is 1 raw text is: ANTROBUS V. DAVII)SON
estate were not in the possession of the Court, one incumbrancer might claim his
interest, and insist on being regularly paid. Another might suffer his to run in
arrear. The estate would be discharged of the one, and remain burdened with the
other. Why should it be otherwise when the estate is in the possession of the Court ?,
To benefit the real, at the expense of the personal estate, is no part of the purpose
for which the order is made, although it may be a consequence of the incumbrancer's
choosing to take the benefit of the direction given to the receiver.
Here is a fund, consisting of rents and profits, which had not been applied in the
payment of interest in the lifetime of Willoughby Bertie, nor appropriated for such
payment. What is that fund, then, but the personal estate of Willoughby Bertie ?
and what right has the person taking the real estate under him to say, that this
portion of the personal estate shall, after his death, be applied to the exoneration
of the real estate, from the burden of that interest ? I conceive there is no ground
for such a claim.
It was thrown out in argument, that Willoughby Bertie, by not applying, during
the two first years after he came of age, to get this fund out of Court, has shown
that lie did not himself consider it as part of the personal estate. But, by merely
doing nothing, he surely could not change the actual character of the property.
The Court finds it personal estate, and must deal with it as such ;-and, being
personal estate, it belongs to the personal representative. I am of opinion that the
Master's Report in this particular is right ; and there is, therefore, no reason for
allowing an exception to be taken to it.
[569] As to that part of the mortgage money to which Willoughby Bertie was
entitled, the rents and profits that accrued in his lifetime, must, to be sure, go in
satisfaction of the interest. The personal representative is not claiming both the
interest and the rents and profits ;-but only rents and profits. When they are paid.
the demand for interest will be extinguished.
ANTROBUS and OTHERS v. DAVIDSON. Rolls. Dec. 8-1.2, 1817.
[See Wolmershausen v. Gullick, [1893] 2 Ch. 524.]
Colonel of a regiment having taken a bond of indemnity from his agents, with
another as surety, in respect of all charges, &e., to which he may become liable
by their default ; the agents having afterwards become bankrupt ; and govern-
ment having given notice to the representatives of the Colonel (deceased) of a
demand upon the Colonel's estate by virtue of an unliquidated account : a bill
by the representatives of the Colonel against the representatives of the surety,
to pay the balance due to government, and also to set aside a sufficient sum out
of their testator's estate, to answer future contingent demands, though attempted
to be supported upon the principle of a bill quia timet, dismissed with costs. No
analogy to the case of Simmons v. Bolland, reported 3 Mer. 54:7.
Sir William Fawcett, being Colonel of the 15th Regiment of Foot, and subse-
quently also of the 3d Dragoon Guards, and Governor of the forts of Tilbury and
Gravesend, appointed Messrs. Ross and Ogilvie his agents, who, as such agents.
entered into a bond, by which they became bound to him, jointly with Duncan
Davidson, as their surety, in the penal sum of £10,000, conditioned from time to
time when required, to account with him (Sir W. F.) his executors, &c., in respect of,
and pay to him and them, all sums, &c., due from them as such agents, and to settle
all public [570] accounts which had been, or should, or might be, required, relative
to their said concerns as agents, and also to indemnify him (Sir W. I'.), his heirs,
executors, &c., against all costs, charges, and expenses, which should or might be
incurred by the neglect or default of them (Messrs. Ross and Ogilvie) in the premises,
or in any manner relating thereto.
This bond was dated in August 1794. In March 1804, Sir W. I'awcett died.
in the beginning of 1805, a commission of bankruptcy was issued against Messrs.
Ross and Ogilvie; and shortly afterwards the following notice was sent from the
War Office to the Plaintiffs, as representatives of Sir W. Fawcett.
It having been found necessary, in consequence of the insolvency of Messrs,
Ross and Ogilvie, late agents of the 3d Dragoon Guards, to give orders that the
bills of the regimental and district paymasters, which had been drawn upon the
219
3 MER. 569.](ViewImageLocal?handle=hein.slavery/ssactsengr0732&div=1&collection=&method=preview&ext=.png&size=3)