The Court would not enforce this discovery; and the alleged agreement could not be carried into effect entirely, as all transactions relating to the stock-jobbing must be omitted-Boydell v. Drummond (1), Bullock v. Richardson (2), Gervais v. Edwards (3). The bill also was open to a demurrer. The defendants therefore under the 38th General Order of August 1841 (4), could decline to answer any interrogatory from which they might have protected themselves by demurrer notwithstanding they had answered other parts of the bill-Drake v. Drake (5), Fairthorne v. Weston (6), Kaye v. Wall (7). Mr. Turner and Mr. M. A. Shee, for the plaintiff, contended that the objections taken at the bar were premature, and could only be determined at the hearing. The defendants ought to have pleaded the Statute of Frauds if they intended to avoid the discovery; they could not refuse to answer the bill. The distinction between a plea and answer was, that if you pleaded the statute you were not compelled to answer further than as to matters necessary to make out the plea, but if an answer was put in, it must answer all the allegations of the bill. In Chambers v. Howell (8) the representative of a deceased partner pleaded a sale of the testator's share in the partnership effects to the surviving partners, to avoid the trouble and expense of setting out the accounts, and the pleas were allowed. Again, the objections taken by the answer for the purpose of avoiding discovery were good, when the circumstances stated in the bill shewed that the purpose was to enforce a penalty-Green v. Weaver (9), Taylor v. Barclay (10); but the inquiry concerning books and papers could not expose the defendants to any liabilities, and as some of the transactions were admitted

to be legal the defendants could not refuse to answer as to those. The plaintiff and defendants in these transactions stood in the relation of partners as to the profits; they were not in the position of strangers between whom the Statute of Frauds rendered void agreements not to be performed within the year. If the bill was open to a demurrer none had been filed in time; and the defendants could not now protect themselves from answering the bill under the 38th General Order of August 1841, even assuming that it was open to a demurrer-Mason v. Wakeman (11), Molesworth v. Howard (12), Baddeley v. Curwen (13).

Mr. Temple, in reply. The plaintiff was entitled to nothing but a remuneration for services. There was no partnership between the parties; it was not necessary to plead the Statute of Frauds; the objection was stated in the pleadings-Billing v. Flight (14), Hoare v. Peck (15).

- Two

The MASTER OF THE ROLLS. points were raised in the argument: the first, that the defendants ought not to be compelled to answer in consequence of the nature of the agreement; the second, that they might refuse to answer such interrogatories as related to matters which were illegal. But can a man admit a verbal agreement, and yet plead the Statute of Frauds? Or can he on the grounds stated refuse to answer the plaintiff's bill? The defendants say, that some of the transactions were unlawful, and that they can not answer them without subjecting themselves to penalties: others are not pretended to be unlawful, but still the defendants endeavour to avoid giving an answer to them; but these objections cannot be allowed to prevail, and the defendants must answer the bill however hard it may be. I will postpone giving any opinion upon the point arising out of the General Order until I have seen the case of Mason v. Wakeman. I cannot say

(11) 2 Ph. 516; s.c. 17 Law J. Rep. (N.s.) Chanc. 208.

By a marriage settlement certain policies of assurance effected by the husband upon his life were assigned to trustees upon trust to pay the proceeds to the wife for life and then to divide the capital between the children of the marriage. The settlement also contained a covenant on the part of the husband to pay the premiums, and hand over the receipts to the trustees. There was also a power for the husband and wife jointly to appoint new trustees, with a proviso that on such appointment the old trustees should convey to the new trustees. The husband and wife having jointly executed the power of appointing new trustees, the old trustees refused to execute a conveyance of the trust property, upon which a bill was filed to compel them to do so:-Held, that there was nothing vested in the trustees, consequently there was nothing for them to do, and nothing for the Court to direct them to do: and the bill was dismissed with costs.

This suit was instituted by Mr. and Mrs. Dodson for the purpose of compelling the defendants Powell, Dawson and Roberts, who were trustees of their marriage settlement, to convey the property comprised therein to three new trustees who had been appointed under a power in the settlement. It appeared that the only property which was the subject of the settlement consisted of three policies of assurance effected on the life of Mr. Dodson previously to his marriage. The settlement contained an

assignment of the policies to the trustees upon certain trusts after the death of Mr. Dodson, to receive the money arising under the policies and invest it in government securities, and to pay the interest thereof to Mrs. Dodson for life, and after death to divide the capital amongst the children of the marriage. The settlement also contained a covenant on the part of Mr. Dodson to pay the premiums upon the policies as they should become due, and to hand over the receipts to the trustees. There was also a joint power in Mr. and Mrs. Dodson to appoint new trustees whenever the trustees thereby appointed should die or refuse or become incapable or unwilling to act, and a proviso that in case of such appointment the old trustees should convey the property to any new trustees so to be appointed. It further appeared that certain disputes had arisen between Mr. and Mrs. Dodson, in consequence of which they had for some time lived separate. The trustees espoused the side of Mrs. Dodson, and this was the cause of various quarrels between them and Mr. Dodson. Subsequently, however, Mr. and Mrs. Dodson made up their disputes and lived together again, after which they executed jointly the power contained in the settlement, and appointed three new trustees. The old trustees upon this refused to execute any conveyance of the property comprised in the settlement to the new trustees, and alleged that Mr. Dodson had broken his covenant in not having handed over to them the receipts for premiums paid upon the policies. This suit was consequently instituted against them to compel them to execute the conveyance, the chief question being in fact who should pay the costs of the suit.

Mr. Roll and Mr. Bagshawe appeared in support of the bill; and

Mr. Stuart, Mr. Follett, Mr. Bethell and Mr. Bazalgette, for other parties.

The VICE CHANCELLOR.-It appears to me that on the plaintiffs' own shewing the bill must be dismissed with costs. There is nothing for the Court to do. The parties have quarrelled; and like most of such cases when you come to investigate the matter, the only conclusion is that all parties are wrong. When the case was first opened, I was particularly attentive to the

wills of the said Eleanor Wilkinson and Mary Kirkland. The bill then stated that the defendant had refused to complete the said contract upon the ground that, according to the proper construction of the will of James Wilkinson, the plaintiffs could not make a good title to the said annuity or rent-charge, and the bill, therefore, prayed the specific performance of the contract.

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Mr. Stuart and Mr. Follett appeared for the plaintiffs, and contended that the annuity created by the testator, John Wilkinson, was a valid rent-charge upon the estates, and as such it could be distrained for. The case of Buttery v. Robinson (1) was an authority in support of this view of the case. There an estate was devised subject nevertheless to and charged and chargeable with the payment of the yearly rent or sum of 20l. to A. and her assigns during the term of her natural life.” It was contended that A. could not distrain for the rent, it being a mere personal charge on the party who should be in possession of the land to pay the annuity so long as he should possess the land, but Best, C.J. (before whom the case was argued) held that the sum bequeathed was a direct charge on the land, and could be distrained for. The annuity or rent-charge was, therefore, considered real estate. All the cases went upon this, whether the subjectmatter was personal, or whether it would descend to heirs. An annuity issuing out of lands was entailable within the statute De Donis. Lord Coke, in speaking of tenements said "Tenements, tenementa. This word includeth not only all corporate inheritances which are or may be holden, but also all inheritances issuing out of any of those inheritances, or concerning or annexed to the same (2)." If this was a tenement it was an incorporeal hereditament which would descend to the heirs of the first taker. Suppose the gift was of “ real estate for ever to my heirs, executors, administrators and assigns." That would descend to the heir, the other words being useless. There was no misdescription in

my

(1) 3 Bing. 392; s. c. 4 Law J. Rep. C.P. 108. (2) Coke's Inst. 19 b.

the agreement for the sale of the rentcharge to say that it was given to the heirs, executors, administrators and assigns. It was no misdescription if it was given so as to descend to the heir. This case was very different from the case of The Earl of Stafford v. Buckley (3), in which Lord Hardwicke held that an annuity in fee granted by the Crown out of the 441. per cent. duties payable for exports and imports at Barbadoes was merely a personal inheritance, and not entailable within the statute De Donis. It was also contended that the long course of payment of the annuity (upwards of seventy years) by the present owner of Gurward's Farm and his predecessors would bind such owner personally for the perpetual payment of the rentcharge, which had in fact been regularly paid up to the present time.

Mr. Bethell and Mr. W. D. Lewis, for the defendant, contended that there was no annual rent-charge now vested in the plaintiffs; that the case of Taylor v. Martindale (4) was a decision directly in favour of this construction. In that case a testator devised and bequeathed his property to his wife, subject to an annuity of 50l. a year to his brother for ever. The question was, whether the annuity was payable to the heir-at-law or personal representative of the testator's brother. It was there held that the annuity was given to the executors, administrators and assigns. Here the vendor told the purchaser that he had got a rent-charge issuing out of land and created by a will, under which it was made payable to the first taker, her heirs, executors, administrators and assigns. This was not the case, and the contract entered into upon the faith of that representation could not be supported. Upon this contract it would have been supposed that the will had contained words giving a fee simple. That was not the case; and therefore it was not the thing contracted to be sold. Such words as these, if submitted to several Courts, might be decided in different ways by the different Judges. In the case of Buttery v. Robinson the very words in the will

which removed the ambiguity were not read by the counsel for the plaintiff. The words were "the rent or sum of 201. thereby then and there devised and given to Emily Robinson," so that the actual rent-charge was devised and given, and it could not be contended that the rent-charge was personal. Here the vendors contracted to sell a legal rent-charge capable of being limited. to a man and his heirs, and it was limited only to the executors, administrators and assigns, so it turned out that what was contracted to be sold was a thing of a totally different nature. Under any circumstances, this must be considered as a doubtful title, and the purchaser had a right to say that the question ought to have been decided before the rent-charge was conveyed, and he could not be bound to take a doubtful title. The effect of this purchase would be, that the defendant would be purchasing a lawsuit, and he could not be compelled to accept the title unless the thing sold was absolutely what was contracted to be sold.

The VICE CHANCELLOR.—If the defendant wishes that the opinion of a court of law should be taken on the question whether a rent-charge was created he can do so, and I will direct a case. I say so because it is true that the Court cannot compel a person to take a doubtful title; but if the parties choose to be bound by my decision, I will proceed to decide it. My opinion is that a rent-charge was given. The testator gave his estates to his trustees in trust to permit his wife to receive the rents for her life, and then upon trust to permit his nephew to enjoy the said estates and to receive the rents for ever, subject to the payment of 201. yearly and every year for ever to his niece, her executors, administrators and assigns; and the testator made chargeable his freehold estates in manner and form aforesaid immediately from and after the decease of his wife. It appears

to me that the testator has used two sentences here instead of one, and many words instead of few; but I think the property is given to the first taker in fee, subject to the rent-charge, which may be legally distrained for; and I think that the thing

Witness-Suppression of Depositions.

Two of the witnesses produced by the plaintiffs, and examined under a commission, denied by affidavits that they had deposed to the effect represented by the Commissioner. On motion by some of the defendants, charges of partiality and misconduct not having been established against the Commissioner, an order to suppress the whole of the depositions taken by him was refused; but leave was given to examine and cross-examine both the witnesses vivâ voce in the Master's office on the disputed parts of their depositions.

This was a motion by some of the defendants in a foreclosure suit, that the depositions of all the witnesses of the plaintiffs, taken under a commission issued by the latter, might be suppressed, for irregularity, with costs.

The bill was filed by mortgagees who had been in possession of the mortgaged property ever since the year 1826, against the representatives of the mortgagor and others. The principal points sought by the defendants to be elicited in their crossexamination of the witnesses were, that the premises were in good condition in 1826, but that the plaintiffs had, by neglect, allowed them to fall into a bad state of repair, and that great loss of rent had thereby and otherwise been occasioned.

The defendants moved on the affidavits of two of the witnesses; and the grounds of the motion were, the disclosure by the Commissioner to one witness of the evidence given by another, the misconduct of the Commissioner in asking questions not in the written interrogatories, and the difference in the depositions as returned by him from the actual statements of the witnesses. One of the witnesses stated in