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decree of the 24th of February 1813, as the same LAWRENCE might affect the plaintiff's title to have the assets marshalled; and the Master was accordingly ordered to ascertain and report the amount thereof, and to take an account of the real estates subject to such. specialty debts. Similar observations apply to this decree as to that of 1813. If it does not contain error which works injustice, this House will not set it aside on behalf of a party who might have appealed from it to this House 20 years ago, because it appears deficient in form. The declaration of the right to marshal the assets is no more than the law declares under certain circumstances in taking the accounts of the personal estate, and the application of this right is reserved until it shall be seen whether, in taking the account, such circumstances exist or not. Nothing, therefore, was done by this decree which might not be set right in the subsequent stages of the cause; nothing, therefore, appears which can induce this House, after so great a length of time, to disturb the decree; and for similar reasons I think the order of the 12th of December 1822, which affirmed it upon a rehearing, ought not now to be disturbed. There was ample proof of the debt claimed against the estate of Walter Lawrence, the trustee; he signed receipts for the 10,000l., and by his answer admitted that he had received it: decrees, therefore, with inquiries, could not have been resisted, and neither of these decrees prejudiced any questions which might arise from the result of such inquiries.

The Master made his report in pursuance of these references on the 10th of December 1821, and found that the 10,000l. had been received by Walter Lawrence; that of that sum 6,5187. had been properly applied in payment of judgment debts and costs, and that 3,481 7. had been misapplied by him, or remained unac

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counted for in his hands; that the personalty of Walter Lawrence was about 9,000l., of which 4,000 l. had LAWRENCE been applied in payment of judgment debts; and that the whole of his judgment and specialty debts amounted to 22,5327., and his simple contract debts to 6,000l., independently of the plaintiff's demand. To this report several exceptions were taken, but the fourth, fifth, sixth, seventh, and tenth are alone the subject of this appeal. The first was, that there was no evidence to support the finding that Walter Lawrence had received the 10,000l.; but there were his receipt upon the conveyance and his answer. The fifth was, that Walter Lawrence's estate was entitled to all sums paid to the father of the plaintiff, Robert Archdeckne Burke, because he was trustee of the legacy of 2,500l., and was one of the executors of the original testator. Such payment to the personal representative of Nicholas Archdeckne could be no discharge, the Act imposing upon the trustees the duty of discharging the debts and children's portions; nor could the Appellant, claiming through Walter Lawrence, claim any discharge for payment to Robert Archdeckne Burke as trustee for his children, he not having in his answer set up any such discharge, but having referred all the payments made to Robert Archdeckne Burke to an account totally different, and as to which he did not pretend to have had any authority. Upon the sixth and seventh exceptions there was a reference back to the Master; a mode of disposing of those exceptions quite as favourable to the Appellant as he could possibly have expected, for upon the evidence, as it stood, it would have been impossible to support them. The tenth exception raised a proposition that Walter Lawrence had left personal estate sufficient to pay all his debts; but, in the absence

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of any proof to support it, that exception was very LAWRENCE properly overruled.

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BLAKE.

These exceptions were disposed of by orders of the 13th and 14th of December 1822, now also the subject of appeal. By the Master's report, made in pursuance of the reference back, and which is dated the 31st of May 1823, the Master found that 2,5507. was the sum unaccounted for by Walter Lawrence out of the 10,000l. received by him. To this report several exceptions were taken, of which the fourth and fifth are now alone in question. The fourth was, For that the plaintiffs had not brought the personal representative of Robert Archdeckne Burke before the Master in pursuance of the order giving them permission so to do. This was not the proper subject of an exception; but, by the order made upon it, the plaintiff was made to undertake to give a sufficient discharge. The fifth exception objected to the sum charged against Walter Lawrence's estate, because, as it alleged, it exceeded the extent of payments made in aid of his real estate and any insufficiency of the personal estate to meet the plaintiff's demand. What would have been the value of the proposition raised by this exception, if the facts assumed had been proved, it is not necessary to inquire, the former report having found that 4,0157. of judgment debts, and 2807. of specialty debts, making 4,295 l., had been paid out of the personal estate, which amounted to 9,000l. only; whilst the debts, over and above the plaintiff's demand, amounted to 22,5327. judgment and specialty debts, and 6,000 7. simple contract debts. These exceptions were disposed of by an order of the 11th of July 1823; and by that order it was declared, that such sum of 4,295 l., with interest on such parts thereof as were paid in

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discharge of principal, was a charge upon the real estate, liable to the judgment and specialty debts, and LAWRENCE a fund applicable to the payment of the plaintiff's demand; and the Master was directed to calculate interest upon so much of that sum as he should find to have been applied in payment of the principal of

such debt.

This decree is stated to be a principal subject of complaint, but the effect of it is merely to restore to the personal estate sums which had been paid out of that estate in relief of the real estate; there being simple contract creditors who had no other fund but the personal assets to resort to, and the debts altogether far exceeding the amount of the personalty. It was objected that this declaration charged the real estate, whether settled, devised, or descended. It is clear that it did not do so, or impose any new charge on any part of such real estate; it only declared that the 4,2951., part of the personalty which had been applied in discharge of judgment and specialty debts specified in the fourth schedule, and therefore payable out of the real estate, should be restored to the personal estates out of the real estates liable to the judgment and specialty debts mentioned in the said fourth schedule; which was the correct rule. It did not specify, but only properly described, what real estates were to restore this sum to the personal estate, namely, such as had been liable to the judgment and specialty debts so paid.

So far I think that the decrees and orders appealed from ought not to be varied by this House. In substance, justice has been done by them; and if there have been any irregularities in the progress of the cause, this House will not on that account alone, on behalf of the Appellant, and after so great

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a length of time has been suffered to elapse, set aside the proceedings of the Court below, since the Appellant, who might and ought, if he had intended to question the propriety of any such proceedings, have done so at the time.

It was argued, indeed, that the decrees affecting the real estates of Walter Lawrence had been pronounced in the absence of the parties interested in them; but it appears that the widow, who was entitled to a jointure, and the Appellant Walter Lawrence the elder, who was tenant in tail under the settlement and under the will, were defendants; and if under the will he was only tenant for life, he had the immediate reversion in fee, there being at that time no tenant in tail in esse; but upon the birth of his son, who, upon that supposition, would be tenant in tail, such son was made a defendant by supplemental bill in 1817. No objection can at this time be entertained on account of the absence of parties having charges upon the estates. For these reasons I think that all decrees and orders appealed from, down to and including that of the 11th of July 1823, cannot now be impeached by these Appellants, and that so far the appeal must be dismissed.

The decretal order of the 24th of November 1838 remains to be considered.

The Bill of 1834 was filed by the eldest son and other children of Robert Archdeckne Burke; the eldest son being entitled to the estate out of which the 10,000l. had been raised, and which estate was subject to judgment debts, to the payment of which the 10,000l. ought to have been applied; the other children being entitled to legacies also by the Act payable out of the fund. The eldest son, Nicholas Archdeckne Burke, having died, a bill was filed by the