Continuing injunction.

The old practice in these cases was, that the court *dissolved the injunction, or refused it where not already obtained, unless the defendant gave a judgment at law for the money sworn due, and a release of errors ;(a) though in one case, Lord Keeper North is represented as objecting to this as not sufficiently beneficial to the defendant, since notwithstanding the release of errors, the plaintiff might bring his writ of error and put the defendant to plead his release, and so cause delay.(b) The usual mode, however, at present, is to order the money to be paid into court, for which reasonable time will be given, according to the greatness of the sum, or the distance of the party.(c)[1] This, however, will not

(a) Wy. Prac. Reg. 240, 242.

(b) Anon. 1 Vern. 120.

(c) P. R. C. 204.

place of, and as a substitute for," the old one, the first bond is discharged. Tb. S. C. 7 Ohio Rep. 209, part 2.

[1] The payment of money or the transfer of stock into court is most usually ordered on interlocutory application in the case of personal representatives or other persons filling the characters of trustees having money in their hands, or stock under their control, which belong either wholly or in part to the plaintiff. It appears formerly to have been thought necessary for the plaintiff to show, in support of an application of this nature, that the executor or trustee had abused his trust, or that the fund was in danger from his insolvent circumstances, but the court will now order so much of the trust estate as he admits to be in his hands, to be paid into court, whether "he has abused his trust or not, and without requiring proof of any danger to the property pending the litigation. Strange v. Harris, 3 Bro. C. C. 365; and vide Blake v. Blake, 2 Scho. & Lef. 26; Rutherford v. Dawson, 2 B. & B. 17.

In Blake v. Blake, Lord Redesdale appears to limit the rule as regards personal representatives, to cases in which there are no debts, or the debts are all paid and there is no purpose for which the money is to be left outstanding; but the rule appears to be much more extensive, and any balance which may be in the executor's hands will be ordered into court, notwithstanding there are demands upon it to which the executor is liable. Thus, in Yare v. Harrison, 2 Cox, 377, sed vide Betagh v. Concannon, 2 Moll. 559, an executor having admitted a large balance of the personal estate to be in his hands, was ordered to pay the whole into court, although he stated that an action at law was depending against him for a debt to a considerable amount due from the testator. The court, however, gave the executor liberty to apply, in case the plaintiff in the action should recover against him; and it is to be observed that, upon a verdict being recovered at law for upwards of £1700, the executor applied to the court that it might be paid out to him, to satisfy the verdict, but that the court ordered the money to be paid to the plaintiff in the action, and not to the executor; and, upon a suggestion that the executor had incurred unnecessary costs and interest, by defending the action, the consideration of the ques

be done where there is matter confessed in the answer suffi- Continuing injunction. cient for a total relief:(a) and in one case, where an exe

(a) Toth. 37.

tion-whether the defendant should not answer personally to the estate for the amount of such interest and costs, was reserved to the hearing.

The same principle will apply to other persons than executors, who fill the character of trustees, whether they be such by virtue of an actual appointment or by implication. Upon this principle, the court has ordered an auctioneer to pay into court the balance of the deposit upon the sale, admitted by him to be in his hands after deducting his claims as auctioneer. Yates v. Farebrother, 4 Mad. 239. Upon the same principle, where a testator having a debt secured on lands, bequeathed the debt to the mortgagor, with a desire that he would give a reversionary interest therein to a third person, and the mortgagor sold the estate, he was ordered to bring the mortgage money into court, for the benefit of the devisee, subject to his own life estate, (Lewis v. King, 2 Bro. C. C. 600,) and so where the defendant had covenanted to pay a sum of money to the trustees of his marriage settlement, but had omitted to do so, whereupon a bill was filed against him for the performance of the trusts of the settlement, to which he put in his answer admitting the settlement, and that the money in question was in his hands, he was ordered to pay it into court. In making this order, the court acted upon the principle that where an answer contains a clear admission that there is trust money in the hands of the defendant, the court will make an interlocutory order for securing it. Rothwell v. Rothwell, 2 S. & S. 218.

So also where an executor admits a sum of money to be due from him, in his individual character, to his testator, the court will order the amount to be paid into court; and this was done by Lord Eldon, notwithstanding a statement in the answer that the debts of the testator were not all paid, and that there were several outstanding to which the executor was liable. Motlock v. Leathes, 2 Mer. 491. It is to be observed that, in such cases, the court proceeds upon the ground that, as the persons to pay and persons to receive are the same, it assumes that what ought to have been done has been done, and orders the payment, not as a debt by a debtor, but as of moneys realized and in the hands of the executor or trustee.

Upon the same principle, money admitted by an executor to be in the hands of his partner, will be considered as in his own hands for the purpose of being called into court, (Johnson v. Aston, 1 S. & S. 73); but in Freeman v. Fairlie, 3 Mer. 39, it was held that an admission by an executor that the whole amount of the property was invested in India, on public securities, either in his own name or in the name of a house in which he was a partner, but subject to his disposal, unless some part was in the hands of the house at interest, which he believed might be the case, was held not to be a sufficient admission of money in his hands to order the payment into court of any part of it, (Freeman v. Fairlie, 3 Mer. 39); for although an executor dealing with money in his hands is bound to ear-mark it, yet if he does not do so, and cannot answer as to the state of it, the court has no power to act as upon an admission. Ib.

It is to be observed, that it is only upon the admission of the executor, or other trustee, that the trust-money is actually in his hands, that the court will order it to be paid in; if, therefore, a defendant admits a sum of money to have come to his hands properly belonging to the trust, but adds that he has

Continuing in- cutor by his answer swore a certain sum to be due, yet the junction. court upon affidavit of strangers to the suit, continued the in

made payments on account of the estate, he will be allowed to deduct the amount of his actual payments, and to pay in the balance only. Anon. 3 Sim. 359.

This, however, will be the case only where the payments have been properly made; where the payments have been improperly made, e. g. where they involve a breach of trust, the trustee will not be permitted to avail himself of such payments for the purpose of resisting the payment into court; therefore, where executors had by their answer admitted the receipt of the testator's property, but stated that they had lent it on a promissory note, the vice chancellor, Sir John Leach, upon an application that they might pay the money thus lent into court, held that, having admitted the receipt of the money, the executors could not by alleging an improper application of it, protect themselves from payment into court. Vigrass v. Binfield, 3 Mad. 62; vide etiam, Beaumont v. Meredith, 3 V. & B. 180. So also where moneys directed by a settlement to be laid out in government or real securities were lent by the trustees to the husband on bond, the trustees were ordered, on motion, to pay the money into court. Collis v. Collis, 2 Sim. 365.

This principle was likewise acted upon in Rothwell v. Rothwell, 2 S. & S. 217, before referred to, in which the court ordered the defendant to pay in a sum of money which he had contracted to pay to the trustees of his marriage settlement, but had omitted to pay.

And it is not only in cases where trust money has been improperly lent, that it will be ordered into court; it will be ordered in even where the lending may have been warranted by the trust deed, upon the allegation that the fund is in danger. Payne v. Collier, 1 Ves. J. 170.

It is to be observed that, in order to induce the court to direct the immediate bringing in of a sum of money upon an interlocutory application, the money must be clearly trust money; where it is not impressed with a trust, but is in the nature of a mere debt, the court will not make an order for the payment of it into court till the hearing of the cause; thus, in Peacham v. Daw, Mad. & Geld. 98, where a bill was filed against a defendant insisting that a certain sum of money claimed by her as a gift from the testator, shortly before his death, continued to be part of his assets, and upon the coming in of the answer the plaintiff moved that the defendant might pay the money into court, on the ground that she had admitted circumstances in her answer which made it clear that it was part of the testator's assets, the vice chancellor, Sir J. Leach, refused the application, observing that the proper course was to set the cause down upon bill and answer, and that it was "matter of decree."

In Rothwell v. Rothwell, 2 S. & S. 217, the court appears to have gone to a much greater length than in any case which preceded it, as the money ordered to be paid in was in fact a mere debt due from the defendant to the trustees, and had scarcely received the impress of the trust, never having been in the hands of the trustees; the court, however, appears to have acted in this case upon the rule of equity—to follow trust money wherever it is to be found and to bring it into court.

This rule has been laid down very broadly by Lord Abinger in Lee v. Macaulay, 1 Y. & C. 267, who said "that where a court of equity traces out trust money in the hands of a person who has not prima facie a right to hold it, that money must be brought into court," and it appears to have been the rule acted

junction without ordering the money to be brought into court, Continuing inbecause there appeared reason to doubt whether is was actu

upon in Payne v. Collier, 1 Ves. J. 170, in which a trust fund, which had been lent by the trustees, was ordered into court at the instance of the same trustees, upon the allegation by them that it was in danger.

It is not necessary, to induce the court to order trust money to be paid in, that the trust should be one absolutely declared; it will, in many cases, do the same where the trust is only implied; as in the case of vendors and purchasers, in which case, as the court considers what is agreed to be done as done, it will treat the vendor as a trustee for the purchasers of the estate contracted for, and the purchaser as a trustee, for the vendor, of the purchase money.

Sir Edward Sugden, in his learned treatise upon the Law of Vendors and Purchasers of Estates, (vol. 1. p. 357,) thus states the rule in practice of calling upon the purchasers of estates to pay their purchase money into court: "A new practice has sprung up by which certainly some suits have been quickly disposed of, but which has been a great surprise upon many parties. I allude to the practice of ordering a purchaser in possession of the estate, upon motion, to pay the purchase money into court. This, under special circumstances, has even been done before answer, (Dixon v. Astley, 1 Mer. 133; see Burroughs v. Oakley, ib. 52, 376, n.; Blackburn v. Stace, Mad. & Geld. 69,) but the purchaser has in some cases had the option to pay the money or give up possession, (Clarke v. Wilson, 15 Ves. 317; Smith v. Lloyd, 1 Mad. 83; Morgan v. Shaw, 2 Mer. 138; Wickham v. Evered, 4 Mad. 53); in others occupation rent has been set, deducting interest on the deposit. (Smith v. Jackson, 1 Mad. 618; Smith v. Lloyd, ubi supra,) and in others a receiver has been appointed, (Hall v. Jenkinson, 2 V. & B. 125; see Clarke v. Elliott, 1 Mad. 606);) and payment of the money will be ordered, although by the agreement it is payable by instalments and a portion of it is to remain secured upon the estate." Younge v. Duncombe, 1 You. 275.

This rule has been adopted where the possession has been given under a mutual apprehension that the title could be immediately made good, (Gibson v. Clarke, 1 V. & B. 500; see 1 Mad. 607); where the purchaser had a sort of mixed possession with the vendor, and had paid part of the purchase money, was insolvent, and had attempted, without effect, to sell the estate, (Hall v. Jenkinson, ubi supra); where the purchaser approved of the title and prepared a conveyance, and then raised objections, (Walters v. Upton, Coop. 92, n., but see Booner v. Johnston, 1 Mer. 366; and see Crutchley v. Jerningham, 2 Mer. 502; Fournier v. Edwards, T. T. 1819, V. C.); where the purchaser had been guilty of laches and cut underwood, (Burroughs v. Oakley, 1 Mer. 52, 376, n.; Dixon v. Astley, ib. 133, 378, n.; Bradshaw v. Bradshaw, 2 Mer. 492); even in a case where it appeared on the face of the abstract that the title was bad, but the purchaser had sold and conveyed the estate to another purchaser. Brown v. Kelty, L. I. Hall, July, 1816, MS. So where, from circumstances, an acceptance of the title was inferred. Boothby v. Walker, 1 Mad. 197; and see Smith v. Lloyd, 1 Mad. 83. Again, where a time was fixed for payment of the purchase money by instalments, and the property was a coal mine. Buck v. Lodge, 18 Ves. 450. In all these cases the rule has been applied, and if the estate be sold under a decree, the purchaser, if he enters into possession, will be compelled to pay his purchase money into court, unless he entered with the express consent of the court." Anon. L. I. Hall. 16 July, 1816, MS.

But where the sale is not by the court, and the seller has thought proper to

junction.

Continuing in- ally due; and the executor, it was said, is not privy to the junction. transactions of the testator:(a) and so it was said it would

(a) P. R. C. 204, 205. Curs. Can. 445.

put the purchaser into possession, with an understanding between them that he shall not pay his money until he has a title, the purchaser cannot be called upon to pay the money into court in this summary way, (Gibson v. Clarke, 1 V. & B. 500); nor can the payment be compelled where the vendor gives possession without stipulation, (Clarke v. Elliott, 1 Mad. 606,) or the purchaser was in possession under another title before the contract, (Freebody v. Perry, Coop. 91; Bonner v. Johnson, 1 Mer. 366); or the possession was given independently of the contract, and the seller has been guilty of laches, (Fox v. Birch, 1 Mer. 105); although, in such cases, the purchaser may make himself liable to the demand by dealing improperly with the estate, e. g. cutting trees or selling it to another person. Cutler v. Simons, 2 Mer. 103; Bramley v. Teal, 3 Mad. 219; Gell v. Watson, ib. 225. But the purchaser, after a long period, will not be permitted to keep possession of the estate and also withhold the purchase money: if a title has not not been made, he will be put to his election within a reasonable time. e. g. two months to give up the possession or pay the purchase money. Tindal v. Cobham, 2 M. & K. 385.

If an agreement be by parol for sale, at so much per acre, and possession be given to the purchaser without any understanding respecting the period when the purchase money should be paid, and the bill alleges a quantity of land to be sold, which is denied by the answer, and the bill only seeks a performance as to the larger quantity, no money will be ordered into court. Benson v. Glastonbury, N. & C. Com. C. Coop. 42.

The same learned author then proceeds to deduce two simple rules from the cases: "1st. Where the possession is taken under the contract or is consistent with it, and the purchaser has not dealt improperly with the estate, the cause must take its regular course. But, 2d. If the possession by the purchaser without payment of the money is contrary to the intention of the parties, or is held according to it, but the purchaser has exercised improper acts of ownership, for example, cutting timber by which the property is lessened in value, or selling the estate by which the first seller's remedy is complicated without his assent; in such cases, the court will interpose and compel the purchaser to pay the purchase money into court."

The principle of ordering money into court upon a trust by implication was acted upon by Sir Lancelot Shadwell, V. C. in Parry v. Ashley, 3 Sim. 97, in which his honor directed the proceeds of a policy of four lives, upon a freehold house, which had been renewed by an executrix after the death of the testator, to be brought into court on the application of the widow in a suit instituted by her for the administration of the testator's estate; not on the ground that the proceeds of the policy formed part of the personal estate, but because they were affected with a trust for the benefit of the persons interested in the real estate under the will.

It was also followed in Lee v. Macauley, ubi supra, where the court of exchequer held, that where goods had been specifically and not generally consigned by a trader abroad to merchants in this country, was trust money in the hands of the consignees, and upon a bill filed against them by the representative of the trader for an account, ordered the proceeds of the consignment to be brought into court. Vide etiam Bogle v. Stewart, Dom. Pro. 1801, cited