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![handle is hein.slavery/ssactsengr0855 and id is 1 raw text is: Plaintiff lent her money, from time to time, to enable her to purchase necessaries,
and she applied it accordingly. On the argument of a general demurrer, one ques-
tion was whether the Plaintiff could sue the husband for the money in a Court of
Equity.
Mr. Bacon and Mr. Bilton, in support of the demurrer, contended that the
Plaintiff's right (if she had any) was a purely legal one.
Mr. Bethell and Mr. Willcock, in support of the bill, referred to Harris v. Lee
(1 P. W. 482), Marlow v. Pitfeild (Ibid. 558), [589] and 2d Roper on Husband and
Wife, Jacob's edition, page 112.
THE VICE-CHANCELLOR [Sir L. Shadwell]. The question is not whether there
is a debt, but whether the Court has jurisdiction in this case to direct payment of it.
In the cases cited, there were trusts for payment of the husband's debts ; which
gave the Court jurisdiction; and the only question was whether the Plaintiffs were
creditors of the husband. If they were, there could be no doubt that the Court
would execute the trusts in their favour. In this case there is no trust to execute ;
but the Plaintiff sues merely as a creditor of the husband ; and, as a mere creditor,
she has no equity against the husband.
Demurrer allowed, and leave to amend refused.
[590] PETO V. PETO. April 21, 23, 1849.
[S. C. 13 Jur. 646.]
Deed. Covenant. Family Arrangement.
The eight children of A. being entitled to a fund, equally, in the event of their
surviving B., seven of them, in pursuance of an arrangement made amongst them-
selves whilst the eighth, whose name was James, was in India, executed a deed by
which they and he were made to covenant with each other reciprocally, that, in
case any of them should die in B.'s lifetime leaving a child or children, such child
or children should be entitled to the share or shares of his, her, or their parent or
parents, in such and the same manner as if such parent or parents had survived B.
James never executed the deed; but he and six of those who did execute it
survived B. The other left children, and those children claimed to be entitled,
under the deed, to their parent's share.
Held, that the deed was made upon the assumption that all the persons named as
parties would execute it, and, as one of them had not executed it, it was not
binding upon the others, though they had executed it.
The testator in this cause, by his will, dated the 13th of September 1830,
bequeathed two-fifths of his residuary personal estate to the then present children of
Thomas de la Garde Grissell and Ann, his wife, who should be living at the decease
of their mother. The testator died on the 15th of September 1830. Ann Grissell
and her husband survived him, and had eight children living at his death, namely,
Thomas, James, Charles, Mary, the wife of Samuel Morton Peto, Hannah, Elizabeth,
Henry and Martin. On the 25th of April 1832 (at which time Thomas had two
.children, and Elizabeth, Henry and Martin were infants, and James and Charles were
resident in India), an indenture was made or expressed to be made between Thomas,
James, Charles and Hannah and Mr. and Mrs. Peto of the first part, Elizabeth,
Henry and Martin of the second part, the two children of Thomas, both of whom
were infants, of the third part, and Henry Moon of the fourth part, whereby, after
reciting the testator's will, and that it had been agreed between Thomas Grissell and
his brothers and sisters and Mr. Peto that, in case Thomas or any or either of his
brothers or sisters should die before their mother [591] leaving any lawful child or
.children, such child or children should stand in loco parentis, and take their parents'
share of the testator's residuary personal estate equally between them: and that
Thomas Grissell and his brothers and sisters and Mr. Peto, being very desirous that
not only the two children of Thomas, but all his other children thereafter to be born
16 SIM. 589.
PETO V. PETO
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