re is an implied agreement by the debtor, Peter Rye, to pay? Now what is the eement? This is a common [32] creditors' deed; an arrangement between creditor debtor for the payment of the debt. The debtor covenants against incumbrances, I not to give any preference; and the creditors, in consideration of all these things ended to be done, agree to suspend their right to sue. How would this deed be scribed? Why, an agreement between creditor and debtor for payment of the debt. at is the substance of the transaction; that is its whole character.

The covenants not to incumber and not to give any preference, especially the ter, imply an agreement to pay, for the latter covenant is an implied contract to y equally. [He read from the judgment in Cheslyn v. Dalby as to a recital of a debt mounting to a promise to pay, unless there is something to rebut the presumption intention so to promise.] Now here we have an absolute ackowledgment of the ebt. [He cited also Tanner v. Smart (6 Barn. & Cress. 603); Linsell v. Bonser 2 Bing. N. C. 241).] If a promise is raised, then, if that is a promise implied in a eed under seal, it is an agreement under seal, and creates a specialty.

In Lacam v. Mertins (1 Ves. sen. 312) the circumstances shewed that it would be ontrary to the intention of the parties to raise a promise by the recital, but here the whole scope of the deed is consistent with such an intention.

The case of Courtney v. Taylor (6 Man. & Gr. 851) is in our favour, if you look at he marginal note; the creditors here agree not to sue. If the words had been "it is agreed between," &c., then that would have been clearly a reciprocal agreement. But what is the distinction between, it is agreed between A. and B., and A. agrees [33] with B., if both sign? There can be no agreement but a mutual agreement; and if A. agrees with B., and B. executes, it is B.'s agreement as well as A.'s. [He cited Pordage v. Cole (1 Saund. 3197).] The case in Leonard is exactly in point.

THE VICE-CHANCELLOR [Sir R. T. Kindersley]. The question to be here decided is whether a certain debt due from Peter Rye to a person named Anstey is or is not barred by the Statute of Limitations. The deed was executed in 1831, and the debt was due on simple contract. Two points have to be decided on this question; the first is this, whether on the construction of the deed there is such an agreement, either express or implied, for the payment of the debt by Peter Rye, as amounts to a contract to pay; if there is, that of course has the effect of converting the simple contract debt into a specialty debt. The creditors were not to sue before the expiration of a certain period, which period, in the view most unfavourable to the creditors, expired in 1835; and if it was converted into a specialty debt, it would not then be barred. One question is, then, has it been so converted? The second question is, supposing it not to have been converted into a specialty debt, is the period of six years which would bar it to be computed from the death of Peter Rye's son in 1839, or from the death of Peter Rye in 1851? Now, looking carefully through the deed, this, at anyrate, is perfectly clear, that it does not contain in express terms any agreement or contract, or covenant by Peter Rye, for the payment of the debt. But what is said on behalf of the creditors is, not that there was an express agreement, but that an agreement must be implied. It is to be observed that both Peter Rye and the creditors [34] executed the deed. Now, as to the doctrine of implied agreements, the doctrine which is to be collected from all the cases is involved in much difficulty. It is not always possible to see what is and what is not sufficient to raise an implied agreement. This, however, is a plain, intelligible, sensible and settled rule that whereas you never ought to imply a covenant against the intention of the parties, so goes further, and you ought not to imply an agreement unless in the fair and honest construction of the deed it appears that it was the intention of the parties, or unless it is absolutely necessary to imply it; and when it is said you ought not to imply a covenant unless it is necessary, that must be taken to mean when it is necessary in order to carry into effect the intention of the parties that it should be implied; and that means not the intention of the parties merely that payment should be made, but their intention that the deed should operate by way of agreement to pay. Now what I find in this instrument is this. Peter Rye, at the time the deed was made, was tenant for life of certain property under the will of his brother, and by the terms of the will the children of Peter Rye, or such of them as should survive him, were entitled to certain shares in it; but their interests were contingent on their surviving

it

their father. In 1831 Peter Rye had two children, à son and a daughter. In 1831 the son was about to be married; and at that time Peter Rye owed several debts, and, among others, the debt due to Anstey. The son also owed several debts; the s being about to marry, and his father being desirous of settling his life interest on the marriage, which, of course, he could not do without the assent of his creditors; and the son on the marriage being intended to receive a sum of £1000, his wife's property, the father and son, together with the daughter, entered into an arrangement with the creditors of the father and the son, and the arrangement was this, that [35] the £1000 which the son was to receive on his marriage was to be dedicated to a certain extent to the payment of some of the father's and some of the son's creditors, to the extent of 8s. in the pound, and for that purpose the father's creditors are divided into two schedules, and the son's also into two schedules. The debts in the first and third schedules are the subject of the £1000. Then, instead of applying his life interest to the payment of any part of his debts, the father settles his life interest on his son, and the son and daughter concur in dedicating their expectant contingent interests to the payment of the father's and son's debts. That is the outline of the transaction. Now how is it carried out? What I have to decide is whether there is an implied contract on the part of Peter Rye for payment? [His Honor stated the parties to the deed, and the recital of Peter Rye acknowledging his debt, and the next recital of the nature of the intended arrangement.] Thus far there is a distinct acknowledgment by Peter Rye that he owed the debts in the schedule, as well as an acknowledgment by the son that he owed the debts in his schedule; then comes the operative part, and the covenant of the creditors not to sue; then follows another operative part, the son's appropriation of £1000. Now, looking at the words of the deed, what is its purpose? It was to make a provision for the payment of the debts; and in consideration of that provision the creditors gave up for a certain period their right of suing; that is, in consideration of the appropriation of £1000, and of the appointment of the reversionary interest of the son and daughter. But did Peter Rye, when he executed the deed, mean to alter the nature of the debts? Quite the contrary. It is, I think, clear that he means that whatever was then the right of suit of the creditor, which they suspended, that, when it accrued, it should be the same as it then was. [36] There is nothing to lead to the supposition that it was intended to alter the nature of the debts, or that Peter Rye intended either to increase or to alter his liability. The recital acknowledging the debt was not intended to raise an implied covenant, but merely to shew what debts were to be dealt with by the application of the securities. As to the cases upon implied contracts or agreements, in some cases such a recital has been held to raise such a contract; in others, under other circumstances, the contrary has been held. It is clear from the cases that such a recital may raise a covenant; but it is equally clear that it does not of itself necessarily do so, and whether it does so or not in each case depends on what is to be collected as to the intention of the parties. Thus, when you find, besides the recital, more in the deed relating to the same matter in order to imply a covenant, you must see an intention from the other parts that the recital of the debt is so to operate. Now it appears to me that, so far from seeing any such intention here, the whole intention was to make provision for the payment of the debts in a mode in which, according to the expectation of the parties, it would have been unnecessary for Peter Rye to make any payment at all; for if the children had survived, there was property appropriated which, if it was sufficient in amount, and I must assume it was, would have made it unnecessary for the father ever to have paid anything. But then it is said that the father by the deed divests himself of his life interest in the property, and that though he may have stipulated that during his life he should not be liable, he intended that after his death he should be. But I think that what he meant was that, after his death, his assets should not be liable if his children survived him.

As to the cases, they all come under this general rule, whatever may be the special determination in each on its [37] particular circumstances, viz., that from the whole instrument the intention must be collected.

In the strongest case, that in Leonard, assuming that the instrument was executed by the lessee, he had given a bond, and the action was brought on the bond, and it was assigned in breach that the lessee had committed waste, it was held that there

3 an implied agreement, and necessarily so, for if the grant was of land not comtting waste, you must imply that if he took the grant he agreed not to commit ste. It may, however, have been that the lessee did not execute the instrument, d in that view the Court held that there was an agreement by the lessee. Now, in this case, no doubt it was undoubtedly the intention of the parties that e debts should be paid. But was it the intention of Peter Rye, by that instrument, to tract that they should be paid? I do not think that can be inferred. Looking at e whole instrument I think the just conclusion to come to is that it is not necessary, order to work out the intention of the parties, to imply a contract on the part of eter Rye to pay the debts.

Then comes the second question, which is, when did the period during which the ebts were suspended expire? By the deed the creditors covenant that they will not ue during the continuance of the trusts; then the schedule does not follow the deed; he first schedule is headed thus. [His Honor referred to the description of the reditors contained in it. (See ante, p. 26.)] Now the question is whether the coveant of the creditors is one covenant on the part of Peter Rye's creditors not to sue im till his death, and on the part of the son's creditors not to sue him till the father's leath; and another covenant not to sue the [38] father till the expiration of the trusts. Are there two covenants relating to two distinct periods? It is obvious that in no way would the death of the father be necessarily coincident with the termination of the trusts, which would determine when the £1000 was paid, and when the son and daughter died in the lifetime of the father. Then, their interests coming into possession on the death of the father, the property would have to be realised, so that necessarily some time would elapse before the property could be realized after the father's death. So that, in those events happening, in no way could it be concluded that the father's death would be the period of the termination of the trusts.

Then am I to suppose that by the body of the deed it is agreed that the creditors are not to sue till the trusts are performed, and that by the heading of the schedules it is agreed that they shall not sue till Peter Rye's death? Why should the creditors of the son at least not sue till the death of the father? It appears to me that no reason for it whatever can be suggested, and it is most improbable that there should be any such intention as that not only the father's creditors should not sue till the father's death, but that the son's creditors should not sue till the same period. However, without much relying on that, what I find in the schedule is not that the creditors agree, but a list of those who have agreed; not that the schedule is an agreement, but a statement that there is a previous agreement. Then look at the body of the deed; it contains an agreement to suspend the right to sue till the termination of the trusts; that is the only agreement that can be referred to. Then it comes to this, that inasmuch as in the ordinary course of nature the father would die in the lifetime of his children, and that being the expectation of the parties, they regarded it as certain that that was the time at which the trusts would be brought [39] to a close, and they used the expressions in the schedule, for the purpose of indicating what was intended by the deed. They expressed inaccurately, by reference to the death of the father, a period which they expected would at any rate terminate by that time. The body of the deed, which contains the covenant, is clear; the heading of the schedules is not so. Which then ought to govern the construction? I must look at the recitals to see what was intended. Now, when you look at the recital of the proposals, it is in the same language as the language of the covenant.

I have, on the whole, no doubt that the covenant on the part of the creditors is only not to sue while the trusts continued; but that they were to be at liberty to sue when those trusts came to an end. The result is, the certificate which has been given, that this debt is not due, must be supported.

[39] DORMER v. PHILLIPS. July 3, Nov. 8, 25, 1854.

[S. C. 24 L. J. Ch. 168; 3 W. R. 92, 337. Affirmed, 4 De G. M. & G. 855 ; 43 E. R. 742.]

Construction of the words "next heir male" in reference to the context of the will

This was a claim filed by Miles Dormer, one of the sons of James Dormer, deceased, who was a cousin of Charles Lord Dormer, the testator in the cause.

Lord Dormer, by his will, dated the 10th August 1816, gave real estate to the use of his brother, Evelyn Pierrepoint Dormer, for life; remainder to the use of the first, second and every other son of Evelyn Pierrepoint Dormer successively in tai male; remainder to the use of Joseph Thaddeus Dormer, called in the will Josept Dormer, only son of John Dormer, third brother of the testator's father, deceased, for life; remainder to the use of the first and other sons of Joseph Dormer successively in tail male; remainder to the use of the testator's uncle, [40] James Dormer, for life ; remainder to the use of Robert Dormer, the eldest son and heir of James Dormer, deceased (who was the eldest son of the testator's uncle, James Dormer), for life: remainder to the use of the first and other sons of Robert Dormer in tail male; remainder to the use of Charles Dormer, the second son of James Dormer, deceased, for life; with remainder to his sons in tail male; remainder to the use of the Plaintiff, Miles Dormer, the third son of James Dormer, deceased, for life; remainder to his first and other sons in tail male; remainder to Robert Dormer, second son of the testator's said uncle, James Dormer, for life; remainder to his sons in tail male; and remainder to the use of the testator's right heirs.

By a codicil the testator gave as follows:

"I bequeath to Mr. Joseph Dormer, my next heir after the death of my brother Evelyn Dormer without issue male, £150 yearly for the term of his natural life, to date and become due from the day of my death; but in case he should become possessed of my title and estate, then it is my will that the said annuity should be paid to his next heir male also for the term of his natural life, and so on successively to all the sons of my cousin, the late James Dormer, so that the next heir to the title and estate should always enjoy this annuity. I leave to my cousin, Robert Dormer, eldest son of James Dormer above mentioned, £50 a year from the day of my death, for the term of his natural life, to devolve to his next brother, and so on in case of his becoming possessed of the annuity of £150 above mentioned."

The testator died in April 1819. On his death Evelyn Pierrepoint Dormer entered into possession. He died in 1826, without having had issue, and then Joseph Thaddeus Dormer became entitled to the estates [41] and title, and he was Lord Dormer at the time the bill was filed.

The annexed pedigree shews the state of the family referred to in the will. The annuity of £150 was paid to Joseph Thaddeus Dormer until the death of Evelyn Pierrepoint Dormer, and was paid, after he became entitled to the estates, to Charles Dormer until his death without issue, in 1852.

The principal question was whether the Plaintiff, who was the presumptive heir to the title and estates, if the present Lord Dormer (Joseph Thaddeus) should die with issue inheritable, was entitled to the annuity of £150, or whether it went to J. Baptiste Joseph Dormer, the eldest son of Lord Dormer.

Mr. Glasse, Mr. Selwyn and Mr. Cairns, for the Plaintiff. The words next heir in the codicil mean next heir presumptive. So that, not John B. Joseph Dormer, but the Plaintiff Miles, is entitled to the annuity. If, from the language of the will and from the position of the family, the Court can make out that the word heir is used by the testator in a sense other than the strict sense, the Court must construe it as be intended it: Winter v. Perratt (9 Cl. & Fin. 606). His intention was not to provide for his next heir, living Evelyn. He gives to Joseph, who was only his heir presumptive.