property, though thus followed by goods and chattels, was sufficient of itself to carry the realty.

And in Doe d. Andrew v. Lainchbury, 11 East, 290, it was held, that a devise of all the residue of the testator's "money, stock, property, and effects, of what kind or nature soever," to A. and B., "to be divided equally between *them, share and share alike," would pass real as well as personal [*610 estate, where from other parts of the will it appeared that the testator had applied the words property and effects to real estate. As where he began his will by stating, "as to my money and effects, I dispose thereof as follows," &c., and then proceeded to dispose of parts of his real estate.

Now, it cannot be supposed that the testator here meant to die intestate as to his copyhold property, after having expressly mentioned it in his codicil. But, by his codicil, he does not devise the copyhold to his widow immediately; he directs "that it be transferred to her :" And unless it passed to the trustees under the word property in the will, who was to transfer it? This transfer was one of the trusts for which the trustees were named. There is no ground for the argument that a mere power would have sufficed, since the devise to the trustees is direct, and conveys an interest. It is a devise to them in trust to sell, &c., and not a mere direction that the property shall be sold. Co. Lit. s. 169. Sugd. on Powers, 174, and the authorities there cited.

Assuming, then, that the widow had a trust estate in the copyhold, her connexion with the trustees is sufficient to raise a privity between them and the tenant. In Gree v. Rolle, 1 Ld. Raym. 716, an entry by a cestui que trust was held sufficient to prevent the statute of limitations from running against the trustee. The death of the widow did not determine her interest; it only enabled the trustees to sell according to the trusts of the will: and till they have effected a sale, the widow's interest continues in her executor.

Cur. adv. vult.

[*611

TINDAL, C. J. This is an action of replevin, in which the defendant first makes cognisance as bailiff of John *Hodsoll for rent due the 25th of March, 1828; and secondly, as bailiff of John Burton for the same rent; and the question raised by this special case becomes this,-whether the trustees took such estate in the copyhold under the will or codicil as to support the cognisance in the name of the surviving trustee, or whether the wife took such interest therein under the codicil as to support the cognisances in the name of her personal representative.

And looking at the will and codicil, which are framed very inartificially, with the view of discovering the intention of the testator, we think he did not intend to pass by his will any interest in the copyhold premises in question to the trustees named therein.

The testator appears to have known the distinction between freehold, copyhold, and leasehold property; for his will begins with the express devise to his trustees of three freehold messuages, and then gives direction as to the rents and profits of the same messuages, and all other freeholds or leaseholds that he might be possessed of, and lastly directs the division of his said three freehold messuages, either by sale or otherwise, amongst his children. Looking, therefore, at the will alone, we see no words which would comprehend the copyhold within the devise to the trustees, for the word property in the will cannot be held to refer to real property without doing violence to the context of the clause in which that word occurs; and when it appears that the testator, after making his will, though how long after is left uncertain, makes a codicil specifically disposing of his copyhold, it affords a strong ground of inference that the testator thought his copyhold property was not included in his will; and it still further supports this construction, that the general effect of the disposition of the copyhold by the codicil is the same as that of the freehold which had already passed by the will, viz. that the wife of the testator should receive the rents and profits during her life, and after her death a sale should take place and a division be made amongst the children. So that the disposition of the

[*612

copyhold made by the codicil would appear to have been unnecessary, except upon the supposition that the testator thought he had not disposed of it by the will.

If, then, the copyhold did not pass by the will, as we think it did not, so neither did it pass to the trustees by the codicil; for they are not named in the codicil either expressly or by any necessary implication: so that, upon the whole, there appears no estate in the trustees out of which the relation between landlord and tenant could be created, and the cognisances in the name of the surviving trustee do therefore altogether fail.

The second cognisance depends on the nature of the interest which the wife took under the codicil: and it appears to us that it was the manifest intention of the testator, that her interest in the respective parts of the copyhold should be co-extensive with the leases which were then in existence of those respective parts, unless in the event of her death before the determination of the respective leases, in which case her interest was to determine with her life. And as the case finds that the lease which includes the premises for the rent of which this distress was taken, expired on the 25th of December, 1821, it follows that the whole of the rent distrained for accrued since the time when the wife's interest under the codicil had expired, and consequently that there could be no holding by the tenant under her personal representative.

We therefore think, upon the second cognisance also, the verdict must be entered up for the plaintiff; that he did not hold under Burton, as the defendant has alleged; and that, upon the whole, the verdict is to stand as entered for the plaintiff. Judgment for the plaintiff.

*613]

*DOE dem. PEARSON v. ROE. May 24.

A mortgagee is not permitted, under 11 G. 2, c. 19, to come in and defend as landlord in ejectment, unless he be interested in the result of the suit.

STORKS, Serjt., had obtained a rule nisi for a mortgagee to be permitted to defend in this cause as landlord.

The affidavit of the mortgagee, on which the motion was made, did not state that the mortgagee had any interest in the question between the contending parties; on the contrary, it was rather to be collected that the mortgagee was put forward to serve the purposes of the tenant; upon which,

Wilde, Serjt., who showed cause, contended that the Court ought not to permit the mortgagee to defend as landlord, unless he had an interest in the question between the parties.

Storks. He may be presumed to have an interest in any question touching the land conveyed to him, and is always admitted to defend, unless a case of collusion be clearly made out. Doe d. Tilyard v. Cooper, 8 T. R. 645.

TINDAL, C. J. This is a motion under the 11 G. 2, c. 19, by which the Court is enabled to allow the landlord to make himself a defendant in an ejectment for property demised by him, upon certain terms prescribed by the statute; and, under that statute, a mortgagee has sometimes been considered as a landlord. But the question to be considered in all cases is, whether he be himself *614] interested in the result of the suit, or whether he be *merely set in motion for the purposes of some other person; and, upon the affidavits before us, we think that the latter is the case in this instance. The mortgagee does not swear that he is himself interested in the result, and it is probably immaterial to him under whom the tenant immediately holds. We think, therefore, he does not bring himself within the terms of the act, by showing that this is his own motion, and the rule must be Discharged.

2 A

Plaintiff declared on an agreement to employ him at the end of a year. Defendant pleaded the general issue, and that there was no memorandum in writing of the agreement, as required by the statute of frauds. Plaintiff replied, that there was such a writing:

Held, he was bound to permit an inspection of it by defendant, although it consisted only of a letter from defendant's agent.

THE plaintiff declared on an agreement to take him into a certain employment at the end of a twelvemonth.

The defendant pleaded, first, the general issue; secondly, that there was no memorandum of the agreement in writing signed by the party to be charged, or his agent, as required by the statute of frauds.

The plaintiff replied, that there was such a writing; on which the defendant joined issue, and obtained a judge's order for an inspection of the writing.

Taddy, Serjt., moved to discharge this order, on an affidavit that the writing referred to in the replication consisted only of letters from the defendant's agent. He submitted, that such letters did not constitute the agreement, but were merely evidentiary of it; and that therefore the defendant was not entitled to an inspection.

[*615

* Wilde, Serjt., who showed cause, urged, that upon these pleadings the plaintiff could not succeed, unless he showed an agreement in writing; and as he admitted by his replication he held such a writing, he must, upon the principle of all the cases on the subject, be considered a trustee for both parties, and bound to produce the writing.

Taddy. The present case goes beyond all that have preceded it, in calling for documents which are only evidence of a contract, and not the contract itself. If the defendant had pleaded the general issue only, he would not have discovered the existence of the writing; and he ought not to be placed in a better situation by putting on the record a plea unnecessary to his defence, since the matter advanced in it might have been taken advantage of under the general issue.

TINDAL, C. J. Upon the whole of these pleadings it appears that there is a memorandum in writing of the agreement, on which the plaintiff proceeds. I think no objection arises from the circumstance of there being two pleas; for the purposes of this application it must be taken as if there were but one, and then the replication virtually inserts in the declaration an averment of an agreement in writing. It appears that one party only has a copy; and it comes round to the ordinary case, that where there is only one copy of the contract in dispute between the parties, the party who holds it is a trustee for the production of it to the other party. The writing, therefore, must be produced to the defendant, and the rule for setting aside the judge's order be Discharged.

*GODEFROY v. JAY. May 24.

[*616

A plea of privilege, after a special imparlance, is ill on demurrer; but the plaintiff cannot treat it as a nullity, and sign judgment.

IN this action the defendant, after imparling with a saving of all exceptions to the writ, pleaded his privilege as an attorney of the Court of King's Bench. The plaintiff treated the plea as a nullity, and signed judgment; whereupon Cross, Serjt., obtained a rule nisi to set aside the judgment as irregular.

Wilde, Serjt. The plea is a nullity, and the plaintiff is entitled to judgment. It is a plea to the jurisdiction of the Court; Chatland v. Thornley, 12 East, 544; and a plea to the jurisdiction of the Court cannot be pleaded after a special imparlance, with a saving of all exceptions to the writ, bill, or count: if it be proposed to plead such a plea after imparlance, the plaintiff must obtain, by ap

plication to the Court within the first four days of term, a general special imparlance, with a saving of all advantages and exceptions whatsoever: 2 Wm. Saund. 2, n. (2); Bac. Abr. Abatement (C). Without such a condition, it would be inconsistent for the defendant to disclaim the jurisdiction of a Court of which he had claimed an indulgence.

Cross. This is not a plea to the jurisdiction, but a plea of privilege; and Bac. Abr. Pleas (E.), and Gilb. Hist. C. P. 185, are authorities to show that it may be pleaded after a special imparlance. Even if it were otherwise, the question is at least a question of nicety and difficulty, which was debated on demurrer in Wentworth v. Squibb, 1 Lutw. 43, 640; and the plaintiff should have *demurred or have applied to the Court, instead of snapping

*617] a judgment and treating as a nullity a plea the validity of which was at

least a matter for discussion.

TINDAL, C. J. We think that this plea would not have been sustainable, if demurred to: at the same time, as the question involved a point of nicety, the party was not entitled to treat the plea as a nullity. The judgment, therefore, must be set aside, on condition of the defendant's pleading to the merits of the action. Rule absolute.

CARTER, Assignee of PEER, a Bankrupt, v. BRETON. May 24. After a secret act of bankruptcy by P., defendant accepted a bill of exchange for him for 981. at three months, which P. paid to a creditor standing by; later, in the course of the same day, P. agreed to sell defendant four horses as security for 701. of the 981. The horses were subsequently delivered to the defendant, who paid the 987. bill when it became due: Held, that the transaction was not protected by the eighty-second section of 6 G. 4, c. 16.

TROVER by the plaintiff, as assignee of Peer, for four horses.

At the trial before Tindal, C. J., Middlesex sittings after Hilary term, it appeared that after Peer (a coach proprietor) had committed the act of bankruptcy on which the commission issued, and which act was unknown to the defendant, the defendant accepted a bill of exchange for 987. at three months for Peer's accommodation; this bill was immediately transferred by Peer to Bamford, one of his creditors, who carried it away.

After this transaction, but in the course of the same day, Peer and the defendant had a conversation as to security to be given to the defendant in consi

deration of his acceptance; and it was agreed between them that Peer *618] *should sell to the defendant, for 707., the four horses which were the subject of the present action. In order to accommodate Peer, he was permitted for a short time to continue to employ them with his coach; but they were subsequently delivered to the defendant, who paid the 987. bill when it became due. The commission was issued against Peer within two calendar months of the defendant's accepting the bill of exchange. The jury found that there was a bonâ fide sale of the horses, and gave their verdict for the defendant.

Spankie, Serjt., obtained a rule nisi for a new trial on various grounds, but the decision of the Court turning exclusively on the question, whether or not the above transaction amounted to a sale under the eighty-second section of 6 G. 4, c. 16, this report of the previous discussion is also limited to that point. Wilde, Serjt., who showed cause, relied on the finding of the jury: he maintained also that the whole dealing between the defendant and Peer was one transaction; that the defendant had in effect purchased the horses, by paying, at Peer's request, a creditor of Peer's; that it was immaterial whether the horses were paid for by money or bills, and equally so whether the money or bills were put into Peer's hands, or at his request into the hands of his creditor standing by. The manifest object of the statute was to protect bonâ fide transfers, and there was nothing to impeach the bona fides of this.

In Hill v. Farnell, 9 B. & C. 45, where A. purchased of B., a hop merchant,

a library, and paid him the value, and B., at that time, had committed an act of bankruptcy, of which A. had no knowledge; it was held, that the assignees could not recover the value of the books, without at least tendering the price, inasmuch as the payment *made by A. was declared valid by the 6 G. 4, [*619 c. 16, s. 82; and in order to give full effect to that enactment, A. must at least have a lien on the books, in respect of which he had made the payment, until the assignees tendered him the sum paid. Cash v. Young, 2 B. & C. 413, is a decision to the same effect on the statute 1 Jac. 1, c. 15, s. 14, which protected payments made in the ordinary course of trade.

Spankie. The bona fides of the transfer will not entitle the defendant to retain these horses, or protect the transaction, unless it can be said to amount to a payment to a creditor of the bankrupt on the day of the transfer, within the meaning of the eighty-second section of 6 G. 4, c. 16, which enacts, "that all payments, really and bona fide made by any bankrupt, or by any person in his behalf, before the date and issuing of the commission against such bankrupt, to any creditor of such bankrupt (such payment not being a fraudulent preference of such creditor), shall be deemed valid, notwithstanding any prior act of bankruptcy by such bankrupt committed." Here, were two separate transactions: the acceptance of the bill for the accommodation of the bankrupt; and subsequently the transfer of the horses by the bankrupt to the acceptor, by way of security for the payment of the bill, for which he had made himself responsible. At the time of the acceptance, and transfer of the bill to Bamford, the transfer of the horses to the defendant had never been thought of. It is impossible, therefore, to say that the bill was given to the creditor as payment for the horses. It was given as an accommodation to the bankrupt; and the horses were afterwards made over to the acceptor in return for that accommodation. It would be a violent application of the vorερov роTEрov to call this a sale. In Hill v. *Farnell, the transaction was at least uno flatu, though even there it was doubted [*620 whether the assignees had not the right to rescind it; and in Cash v. Young, there was a payment to a creditor. But in Bishop v. Crawshay, 3 B. & C. 415, where A., a merchant in London, ordered goods to be made by B., a manufacturer in the country; the goods were made to order, but, before they were forwarded to A., B. committed an act of bankruptcy, and afterwards shipped the goods, having previously, but after the act of bankruptcy, drawn upon A. a bill of exchange for a larger sum than the price of the goods ordered, which bill A. accepted, not then knowing that B. had committed an act of bankruptcy: the goods having afterwards come to the possession of A., it was held that the assignees were entitled to recover them, because the property in them remained in the bankrupt, both at the time when the act of bankruptcy was committed, and when the bill was accepted by A., and therefore this was not a payment protected by the 1 Jac. 1, c. 15, s. 14, because A. was not a debtor of B. at the time when the acceptance was given. Cur. adv. vult.

TINDAL, C. J. One question in this case, and the only one upon which it is necessary to give a decision, is, whether the transaction between the bankrupt and the defendant, under which the delivery of the horses was made, falls within and is protected by the eighty-second section of the statute 6 G. 4, c. 16.

The defendant, at the request of the bankrupt, after the committing of a secret act of bankruptcy, accepts a bill of exchange for 987. for the bankrupt's accommodation, which bill is paid to Bamford, a creditor of the bankrupt, who carries the same way.

*In the course of the same evening, but after that transaction is com

pleted, the bankrupt and the defendant have further conversation as *[621 to the security to be given to the defendant, and it is agreed between them that the bankrupt shall sell to the defendant four of his horses, being the same horses for which this action of trover is brought, for 707., being part of the amount of the acceptance. The horses are at a subsequent time put into the possession of the defendant, and the bill for 987. is paid by the defendant when it arrives at maturity.