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![handle is hein.slavery/ssactsengr0869 and id is 1 raw text is: DOBSON V. LEE
The minutes, so far as they can be conveniently at present dictated, ought, I
suppose, consistently with what I have stated, to be thus:-
Declare, that the trusts of the marriage settlement of Joseph Foster Barham and
Lady Caroline, his wife, ought to be carried into execution : Declare that the slave
compensation money received by John Barham under the order of the West India
Compensation Commissioners, in respect of slaves comprised in or subject to the terms
of 500 years and 1000 years created by the marriage settlement, ought to have been
-by the said John Barham paid to the mortgagees to whom the sum of £10,000, which
was the first charge created by the marriage settlement, was appointed'or assigned by
way of mortgage, in discharge, pro lanto, of the capital of such sum of £10,000, and
in exoneration so far of the said terms: Declare that the assets of John Barham
became, upon his decease, and are now liable to effectuate and make good such
discharge and exoneration as to so much of the said £10,000, from the time when he
received the said compensation money. Let the Master ascertain the amount of the
compensation money received by the said John Barham in respect of the slaves.
comprised in or subject to the said terms: And the Plaintiffs and all other parties
being willing, and the Plaintiff, Lord Clarendon, and all other parties, sui juris, by
their counsel consenting, without prejudice to any other question: Declare that the
personal estate of the said John Barham ought to be considered and treated as
primarily liable to pay and discharge all interest up to his death, upon or in respect
of the several capital sums which were made raisable by the trusts of the said terms,
and upon or in respect of the several mortgages and mortgage charges created by
John Foster Barham as in the pleadings mentioned, so far as any such interest, up to
the said John Barham's dea'th, was not satisfied before his death, or has not since his
death been satisfied out of his personal estate. Declare that the union of rights and
interests in the real and personal estates of Joseph Foster Barham, which took place
after his death, in the said John Barham, as in the pleadings mentioned, had not,
under the circumstances, the effect of merging or extinguishing, and that the said
John Barham was not bound, and didnot intend, to merge or extinguish, or allow to
be merged or extinguished, the several capital sums made raisable by the said marriage
settlement, and the capital sums secured by the said mortgages respectively, or any
or either of them, or any part thereof, and that, subject as aforesaid, all the several
.capital sums continued to be and were raisable and subsisting charges at his death,
and that, subject as aforesaid, his personal estate was at his [714] decease, and now
is, entitled to the benefit of his portions of the said several capital sums and charges:
Declare the Island estate, exclusive of the Island compensation money, to be the.
primary fund, and the general personal estate of Joseph Foster Barham and John
Barham, the secondary fund for discharging the mortgage upon the Island estate,
except as to interest, previous to John Barham's decease, but without prejudice to any
question of apportionment between real estate and personal estate, if any, other than
the Island compensation money, which at the decease of John Barham was comprised
in the Island mortgage. And refer it to the Master to inquire what is real and what
is personal estate in regard to the Mesopotamia and Island estates respectively, &c.
[714] DOBSON v. LEE. June 30, 1842.
Form of inquiry in a bill of foreclosure, where the Defendant suggests by his answer
that the Plaintiff has been in possession and paid himself interest.
This was a common foreclosure suit. The Defendant, by his answer, stated that
the Plaintiff had entered into possession and receipt of the rents and profits of the
mortgaged estate, and had, as he believed, received more than sufficient to pay the
interest of the mortgage.
THE VICE-CHANCELLOR [Sir J. L. Knight Bruce] said that the question, whether
the mortgagee had been in possession or not, was incidental to the account; and that
though it was entirely in the discretion of the Court to grant an enquiry as to that,
fact, it was usual to do so upon the suggestion contained in the answer.
1084
1 Y. & C. C. C. 714.](ViewImageLocal?handle=hein.slavery/ssactsengr0869&div=1&collection=&method=preview&ext=.png&size=3)