Stretch v. Watkins, 1 Madd. Rep. 253. Clough v. Wynne, 2 Madd. Rep. 188. Gardiner v. Butt, 3 Madd. Rep. 425. Mr. Bell contended, that, the property being given to trustees, and Mrs. Haig having nothing but a right to have the dividends paid to her for her separate use, there was nothing to give her more than a life interest; the whole form of the bequest was altogether unlike an absolute gift, and was exactly what would be expected in a gift for life.

Vice Chancellor.-In considering the construction of this will, the codicil seems to me to be of some importance; for it contains a gift of the same nature with that which is expressed in the will. In the body of the will, 9000l. stock is given to trustees, upon trust to pay the dividends thereof to Maria Haig, or to permit her to receive the same for her sole and separate use, exempt from the control or debts of her husband; in the codicil, there is a gift of plate to the same trustees for the sole use of Maria Haig, equally guarded against the debts or control of her husband. The latter gift must be admitted to be absolute; why is not the other to be equally extensive? There is, indeed, some difference in the form of the gift in the two cases; but the difference is one which arises, not from a difference in the bounty meant to be exercised by the testatrix, but necessarily from the different nature of the property, and the different manner of enjoyment prescribed by that nature. The plaintiff, Haig, could have the enjoyment of the plate, only by personal delivery: she could have the enjoyment of the stock, only by the payment to her of the dividends. Now, when there is no difference between two gifts, except what arises from the different natures of the property respectively given,-is that circumstance of difference sufficient to induce a court to say, that the one gift is absolute, and the other, a gift only for life?

The gift of the stock to the trustees is absolute; and there is no other trust declared. The principle is settled, that a gift of the produce, or of the income of personal estates, is a gift of the whole property; and to that rule it is certainly wiser to adhere, unless I shall be authorized to deviate from it, by finding, upon the further consideration of this will, a clear expression of the intention of the testatrix to give her legatee only a life estate in the four per cent. stock.

Upon a subsequent day, his Honour pronounced his final judgment: The strict rule of the court, said the Vice Chancellor, is, that a general gift of the income of personal property is equivalent to a general gift of the personal property itself. Whether the gift be immediate or through the intervention of trustees, is a matter of indifference. The question here is,-Whether the gift of the dividends of the stock to Maria Haig be a general gift or a limited gift. The argument against her absolute claim is, that the bequest must be held to be limited, in point of duration, to her life; because there is a direction to pay the dividends into her proper hands, and for her sole and separate use, notwithstanding her coverture-a direction, which applies only to her life. My opinion originally inclined that way; but it is safer to follow authority than to yield to nice distinctions. In the case of Elton v. Shepherd, where trustees were to pay the produce of 2000l. to a married woman, for her own sole and separate use, her receipt alone was to be a sufficient discharge for the same. That direction, that her receipt alone should be a discharge, would have been as good a reason for limiting the gift there to a life interest, as the direction in this will for paying the dividends into the proper hands of the legatee can be held to be here. Therefore, the general rule must prevail, that this is an unlimited gift; and I must decide, that Mrs. Haig takes the 9000l. stock absolutely.

There are other passages in this will and codicil, which confirm this construction, In giving other property to Mrs. Haig, the testatrix expresses herself thus :-" over and above the 90001. stock before bequeath

ed unto her." There is also in the codicil an absolute gift of a chest of plate through the intervention of the same trustees; and the only difference between the bequest of the stock, and this bequest of plate is, that the direction as to making the payments into the proper hands of Mrs. Haig is not annexed to the latter bequest, inasmuch as it was not applicable to the nature of the property thereby bequeathed.

However, I do not rely on these corroborating circumstances. I think it better and safer, to follow the authority of Elton v. Shepherd, and to proceed on the general principle, than to say, that my judgment upon this bequest would have been different, if the will and codicil had not contained the passages which I have last mentioned.

Effect of evidence.-Where a defendant has produced uncontradicted prima facie evidence of a fact which constitutes his defence, but that evidence is not in itself conclusive, he will not be entitled to a decree, but a reference will be ordered as to the fact in question.

A vendor sought by this bill to compel the specific performance of an agreement, for the purchase of a public-house and the good-will thereof.

The material defence set up by the purchaser was, that the vendor had been guilty of misrepresentation as to the subject of the

contract.

The defendant, in support of this charge of misrepresentation, proved, that the plaintiff, previous to the agreement, stated to him, that in the preceding year, he had sold porter at the bar of the house (exclusive of ale), at the rate of seven butts per month, and that Tickell was the brewer from whom he had his porter. It was further proved by Tickell's clerk, that, in that preceding year, Tickell had supplied the plaintiff with only thirty-seven butts of porter in the whole.

Mr. Bell and Mr. Wakefield, for the defendant, insisted that this was sufficient evidence to make out the alleged misrepre

sentation. The possibility, that the plaintiff had a stock of beer in the house which was disposed of in that year, or that he received supplies from other persons besides Tickell, could not be adverted to; if such a case existed, it was incumbent upon him to have proved it. The defendant had done all that was in his power to do; he had gone to those by whom the plaintiff averred that he was supplied with porter, and he had proved, that he had not received from them any thing like the quantity, which the pretended amount of his sales must have required.

Mr. Heald and Mr. Girdlestone, contrà. Vice Chancellor.-The defendant has not proved enough to entitle him to a decree, but he has proved enough to entitle him to an inquiry. The proper course, therefore, is, to order a reference to the Master, to inquire, whether, in the course of the preceding year, the plaintiff sold by retail, at the bar of the public house, porter at the rate of seven butts per month.

Demurrer.-If A. is made a party to a bill for an account of a testator's estate, on the ground that he holds assets by collusion with the executor, he cannot protect himself from answering fully, by denying the collusion and demurring to the other parts of the bill.

If a bill states that A. is the solicitor of B. and of C., and then sets forth various dealings of A. in the affairs of B. and C., but does not allege that these affairs came to his knowledge in his character of solicitor; A. cannot demur to the discovery, on the ground that the matters came to his knowledge only in that character.

The bill was filed by the plaintiffs, who were creditors of the Honourable Brownlow Charles Collyear, on behalf of themselves and his other creditors, against his executor, Lord Milsintown, and also against William Surman, as a person holding by collusion with the executor assets of the testator. It stated, that Mr. Collyear was entitled to large personal property; that Surman had been his confidential attorney

and agent; that large sums of money, belonging to Mr. Collyear, had been paid to Surman under a power of attorney from the former; that Mr. Collyear died abroad; that at the time of his death Surman was largely indebted to him; that Surman subsequently received considerable sums of money, part of the said testator's personal estate, as the agent and receiver of Lord Milsintown the executor; that it was agreed between Surman and Lord Milsintown, that the latter should reside abroad, and that the whole, or a great part of the estate of Mr. Collyear, should remain in the hands of Surman upon certain trusts, to the exclusion of Mr. Collyear's creditors. The prayer was, for an account of the property belonging to the testator, which had come into the hands of the defendants.

The defendant, Surman, by his answer, stated, that he had been for many years the confidential solicitor of Lord Milsintown, and also of his son Mr. Collyear; that he had never received money for Lord Milsintown in any other character than as his solicitor; that he had accounted, and was accountable only to Lord Milsintown for so much of the personal estate of Mr. Collyear as had come into his hands; that there was no collusion between him and Lord Milsintown, denying at the same time specifically all the circumstances of collusion, which had been alleged by the plaintiffs. But as to the greater part of the bill (including, among other parts of it, all the questions relative to the accounts of Mr. Collyear's estate), the defendant demurred. The causes of demurrer, stated in the record, were the following:-" That it appears by the said bill, that there is no privity between the said complainants and this defendant in respect of the matters and things aforesaid, and that they have not any right in equity to such discovery and relief as aforesaid from and against this defendant; and that the several matters and things aforesaid, inquired after by the said bill, came to the knowledge of this defendant, confidentially as the solicitor of the said Viscount Milsintown and Brownlow . Charles Collyear."

Mr. Horne and Mr. Parker were for the bill.

Mr. Bell and Mr. James, for the de

murrer.

When it was argued, in support of the demurrer, that the questions demurred to called for a disclosure of facts, which came to the knowledge of Surman only in his confidential character of solicitor

The Vice Chancellor said-That fact must appear on the bill. The defendant cannot support his demurrer by drawing from the bill an inference as to matter of fact. The bill alleges, that Surman was the solicitor of Lord Milsintown and Mr. Collyear; and you say, that it is clear that he could have no knowledge of the matters inquired after, except as such solicitor. How is that clear? You must show me, that it is stated in the bill, that the facts charged came to the knowledge of the defendant in his character of solicitor.

Mr. Bell, acknowledging that the bill. contained no such statement, relied on the other ground of demurrer-the want of privity between the complainants and the defendants. Surman was accountable only to the executor; and it was against the executor alone, that the creditors had a right to proceed. The bill, indeed, had endeavoured to acquire an equity by charging collusion between the two defendants; but this equity was destroyed by the express denial by the answer of all collusion. Upon the demurrer and answer, the bill must be taken as if it contained no such allegation; for the charge of collusion was not demurred to but was denied.

Vice Chancellor.This bill is met by a demurrer on two very different grounds. The first demurrer may be called a demurrer for want of equity; it alleges, that it appears by the bill, that there is no privity between the complainants and this defendant, and that they have no right, as against him, to the relief or discovery which they seek. Now, so far is this from being true, that it does appear upon the face of the bill, that there is a privity between the parties; that the complainants, upon the case made by them, have, according to the settled doctrines of a court of equity, a right to what they pray against this defendant. For the bill charges, that he is acting in collusion with the executor; that he holds by collusion with him assets of the testator; and that the accounts, which have been settled between them, have been settled by collusion.

But then the defendant says,-"I have by my answer denied the fact of collusion." The denial, however, cannot avail him in arguing the demurrer. A party cannot put in a demurrer, which, in point of fact, is falsified by an allegation in the bill, and then cure its defect by denying that allegation, by which his demurrer is so falsified. It is the settled rule of the court, that you cannot, by denying by way of answer, that alleged circumstance or fact which gives the plaintiff his title to discovery or relief, protect yourself from answering fully. With respect to the objection, that upon these principles, any plaintiff, by inserting in his bill a charge of collusion altogether groundless in reality, may obtain from or against a defendant discovery and relief, which, according to the truth of the case, he ought not to have; it is enough to say, that, where a plaintiff endeavours to create an equity for himself by such an untrue charge, the defendant, who would avoid the discovery, must protect himself by another mode of defence, that is, by plea, and not by an answer denying the charge.

The second demurrer is, that the several matters inquired after came to the knowledge of the defendant Surman, as the confidential solicitor of Lord Milsintown and Mr. Collyear. Now, if it had been stated in the bill, that these matters did come to this defendant's knowledge confidentially as such solicitor, the demurrer would have been good. But the bill says nothing of the sort. Then the defendant says, that, from the matters stated in the bill, it appears, that such was in truth the fact. Grant that it does so appear; what can that avail the defendant? The fact does not appear on the face of the bill; it is gotten at only by way of inference. The demurrer, therefore, alleges and relies on a fact not stated in the bill, but deduced from the matters there stated; consequently, it is a speaking demurrer. Demurrer overruled.

the defect cured by the defendant appearing in order to insist on the objection of irregularity.

Mr. Willis having made a motion in this cause, an objection was taken, that the notice of motion was prior to the service of the subpoena.

Mr. Willis replied, that the defendant, by appearing, had waived the advantage which he might have taken of the irregularity, if irregularity there was, in the proceedings of the plaintiff.

Vice Chancellor.-Till the subpoena was served, the plaintiff was not in a condition to move or to give notice of a motion; and the irregularity is not waived by the appearance of the plaintiff, when he appears only in order that he may insist on the objection.

A trustee, having the legal fee, and a tenant for life of a moiety of certain premises, create a mortgage in 1745-the person beneficially entitled to the fee, subject to the life interest of his mother in a moiety, being then a minor: he, and those claiming under them, continue in undisturbed possession of the profits of the premises from the time he attains his full age, without any claim being made upon them for principal or interest: held, that under such circumstances the Court will, as against a purchaser, presume a reconveyance of the legal estate from the mortgagee of 1745.

This was a bill for the specific performance of an agreement into which the defendant had entered, for the purchase in feesimple of certain messuages in the city of London, at the price of 4,600l.; and the only question was, whether the plaintiff could make a good title to the premises. The following were the facts, upon which the question of title depended.

John Cooke, the grandfather of the plaintiff, being seised of the premises in feesimple, did, by indentures of lease and release, dated respectively the 18th and 19th of December 1733, mortgage them in fee to Ann Michell, Mary Willis, and William Gore; and afterwards, by his will, dated

the 7th of December 1734, he devised all his messuages and hereditaments to Dame Elizabeth Child and Richard Lockwood, upon trust, to pay one moiety of the rents and profits to his wife, Abigail Cooke, for her life, and as to the other moiety thereof, upon trust for his son, John Cooke (the plaintiff's late father), during the joint lives of his said son and wife, and, after the decease of the testator's wife, upon trust for his said son, John Cooke, in fee. The will authorized the trustees, (who were also his executors and executrix), to retain out of the devised premises all such charges as they should be put to by reason of the trusts reposed in them, but did not give them any power to raise money by mortgage.

After the death of the testator, Ann Michell, William Gore, and Mary Willis, upon payment of their mortgage-money, re-conveyed the premises to Lady Child and Mr. Lockwood, by indentures of the 31st of August and the 1st of September, 1736, and by a fine levied in pursuance thereof.

By indentures of lease and release, bearing date respectively the 24th and 25th days of May, 1745, and made between Richard Lockwood, the surviving trustee, and Abigail Cooke of the one part, and Robert Johnson of the other part (the release reciting the will of John Cooke, and that, to enable Lockwood to perform several of the trusts thereof, he had occasion to borrow 300l. upon security of the premises), Richard Lockwood and Abigail Cooke conveyed the premises to Robert Johnson in fee, subject to redemption on payment of 300l. with interest.

The abstract, though it showed the creation of this mortgage, gave no information with respect to its subsequent history. There was nothing to show, whether any and what interest had been paid on the mortgage, or had been claimed; whether the principal had ever been discharged; or whether the premises had ever been reconveyed to the trustee, or to the cestui que trust. But the Cookes had all along been in receipt of the rents and profits of the messuages; and no claim had been made upon them in respect of this mortgage. The plaintiff had endeavoured, but without success, to discover, whether Robert Johnson had made any will, and who was his heir

at law. The mortgage deeds were in the possession of the plaintiff.

In 1791, John Cooke, the father of the plaintiff, mortgaged the premises for 3,500l. to William Watson; at which time he covenanted, that he was seised in fee free of encumbrances. In an abstract, which was made out upon that occasion, there was the following note:-"N. B. This 300l. and all interest has been paid off near forty years, if not more; and the present Mr. Cooke in quiet possession ever since he attained twenty-one."

In 1816, the mortgage to Watson was paid off.

In 1818, Joseph Lockwood, the heir at law of the surviving trustee under the will of the original testator, did, for a nominal consideration, convey the premises to the plaintiff in fee.

Under these circumstances, the plaintiff insisted, that it ought to be presumed, that Johnson's mortgage debt had been paid off, and the legal estate reconveyed either to the persons beneficially interested in the property, or to the surviving trustee or his heirs. He insisted further, that Richard Lockwood and Abigail Cooke had no power to mortgage the premises, except to the extent of Abigail Cooke's interest therein, which terminated with her death.

The defendant, by his answer admitting the facts stated in the bill, submitted, that there was not sufficient ground to presume that the mortgage-money had been paid, and the legal estate reconveyed by the mortgagee; and contended, that he had a right to require, that the person or persons, to whom the legal estate had passed from Robert Johnson, should join in the convey

ance.

Mr. Preston and Mr. Sidebottom appeared for the plaintiff :

Mr. Sugden and Mr. Pemberton, for the defendant.

For the plaintiff, the argument was, that the interest of the mortgagee, Johnson, must have ceased at the death of Abigail Cooke; for the mortgage was made by the tenant for life of a moiety, and the surviving trustee, who had no power to mortgage that conveyancee, therefore, would bind the property, only to the extent of Abigail Cooke's life interest. At all events, after the length of time, during which these