Contribution and Average
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1744 |
| Date | 01 January 1744 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 921
HIGH COURT OF CHANCERY
CAP. XVIII. contribution and average. (A) Contribution and Average, in what Cases. (B) In what Proportion. (A) contribution and average, in what cases. 1. If a Man grants a Rent-Charge out of all his Lands, and afterwards selleth them by Parcels to divers Persons, and the Grantee of the Rent-Charge will from Time to Time levy the whole Rent upon one of the Purchasers only, he shall be eased in Equity by a Contribution from the rest of the Purchasers. [Anonymous,] Gary, 3. 2. One Executor, who pays Debts and Legacies, may compel the other to contribute. [Rowe v. Billing,] Toth. 89! 3. If the Collector of Fifteenths levies all the Tax within one Township upon one Inhabitant, he shall have the Aid of the Court of Exchequer to make the others con- tributary. [Dimock's Case,] Lane, 65. 4. If Tenant in Fee mortgages his Estate, or charges it with a Sum of Money, and after devises it to one for Life, Remainder to another in Fee, Equity will compel the Tenant for Life to bear his Proportion of the Mortgage or Charge, that all may not fall on the Remainder-Man. Decreed Hil. 25 Car. [2] [1674], Hays and Hays, 1 Chan. Ca. 223. [114] 5. So if it be a Rent-Charge, Equity will make the Tenant for Life pay the Arrears. [Hays v. Hays,] 1 Chan. Ca. 223, per Cur'. 6. A. on his Marriage agrees to settle Lands for the Benefit of his Wife, and their Issue, and afterwards aliens Part of those Lands; and Lord Nottingham decreed, that the Jointress should have the Deficiency of her Jointure made good out of the Inheritance of the Lands remaining unsold: But that Decree was reversed by Jefferies, L. 0., who held, that where the Jointress and Issue claim by the same Settlement, they shall contribute proportionably in the Discharge of any prior Incumbrance on the Estate. Hil. 1686, Carpenter and Carpenter, 1 Vern. 440. 7. If A. devises his Real Estate to his Son for Life, Remainder to his first Son, dc., in Tail, with Remainders over, and devises specifically a Leasehold Estate to his Daughter, and dies, not leaving Assets to pay his Debts, which affected as well his Real as Personal Estate, the Son and Daughter shall contribute in Proportion in pay ing the Debts, each Estate being liable at Law, and the Testator's Intention equal between them both. Decreed Hil. 1717, Short and Long, 2 Vern. 756. (1 Will. Rep. 403, by the Name of Long and Short.) & If a Man, who is a Widower, settles Lands to raise £100 a-Year for his eldest Son, and £100 a-piece for his younge^ Children; and afterwards marries again, and 922 CONTRIBUTION AND AVERAGE 1EQ. CA. ABE. 115. has Children by his second Wife; the Children by the second Wife shall be equally intitled with the other younger Children ; and though the Portions of the younger Children are by the Settlement to be paid according to their Seniority ; yet, in case of a Deficiency, they shall be paid in Average : Decreed Mich. 1 Jac, 2 [1685], Brath-wait and Srathwait, 1 Vern. 334. 9. One Sxirety may compel another in Equity to contribute towards Payment of a Debt for which they were jointly bound. [Fleetwood v. Charnock,] Toth. 41. ([Peter v. Kich,] 1 Chan. Rep. 34, S. P.) 10. If three are bound as Sureties in Recognizance, and one of the Sureties is sued at Law, and the other Surety, together with the Principal, happens to be insolvent, he who is sued may compel the other Surety to contribute a Moiety. [Hole v. Harrison,] 1 Chan. Ca. 246; [Morgan v. Seymour,] 1 Chan. Rep. 120, S. P.; [Swain v. Wall,] Ibid. 150, S. P. 11. If you sue in Chancery the Executor of one Obligor to discover Assets, you must make all the Obligors Parties, that the Charge may be equal. [Blois v. Blois,] 2 Vent. 348. But a Qucere is put, Whether you may not sue the Principal, and leave out them which are bound only as Sureties. Though Co-obligors are intitled to a Contribution, yet quaere whether it is necessary for the Obligee to make them all Parties. 12. But it is held clearly, that if a Judgment be had at Law against one Obligor, you may sue the Executor of him alone to discover Assets, because the Bond is drojrned in the Judgment. [Blois v. Blois,] 2 Vern. [Vent] 348. 13. The Plaintiff being one of the Owners of a Ship, loaded on board her 210 Tons of Oil, and the Defendant loaded on board her 80 Bales of Silk, upon a Freight by Contract, both to be delivered at London ; the Ship was pursued by Enemies, and forced into a Harbour, &c., and the Master ordered the Silk on shore, being the most valuable Commodity (though they lay under the Oils, and took up a great deal of Time to get at them). The Ship and Oils were afterwards taken, and the Owner of the Oils brought his Bill to have [115] Contribution from theOwner of the Silk; and although itwas admitted that, if Goods were thrown overboard in Stress of Weather, or in Danger or just Fear of Enemies, in order t.o save the Ship and the'rest of the Cargo, that which is saved shall contribute to a Separation of that which is lost; and the Owners of the Ship shall be Contributors in Proportion ; but in this Case the Loss of the Oils did not save the Silks, neither...
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