also recited that the defendant had for some time past cohabited with the plaintiff, and that it was agreed between them that such cohabitation should cease; the plaintiff, in consideration of the first-mentioned indenture being cancelled, and of his being released from the payment of the said annuity of 70%., advanced and paid to the said defendant the sum of 3001., and further covenanted to pay her an annuity of 100l. per annum during their joint lives. The bill stated that one quarterly payment of the said annuity of 100l. having become due in January last, the defendant applied to the plaintiff for payment thereof, but the plaintiff refused to pay the same, and in consequence thereof the defendant had threatened to bring an action against him on the covenant contained in the said indenture of October 1848. The bill then alleged that the said indenture was void at law by reason of its having been executed by the plaintiff for an illegal and immoral consideration, the plaintiff having been induced and drawn in by the defendant to execute the same by the promise and expectation made and held out to him by the said defendant, that if he would execute such indenture, she, the said defendant, would live with him as his mistress in unlawful cohabitation, and such promise and expectation was, in effect, the consideration for the execution by the plaintiff of the said lastmentioned indenture; and the plaintiff further alleged that such unlawful consideration did not appear on the face of the indenture, and such indenture was on the face of it valid and lawful. The bill then alleged that the plaintiff did, on the said 6th of October, pay the said sum of 300l. to the defendant, and that the said sum was so paid by the plaintiff wholly in consideration of the said indenture of the 19th of May 1848 being then delivered up to be cancelled, and in consideration of such future unlawful cohabitation of the said defendant with the plaintiff; that the said indenture of May 1848 was likewise itself unlawful and void, the same having been made in consideration of such unlawful cohabitation. The bill prayed that the indenture of October 1848 might be declared void, and that the same might be delivered up to be cancelled, and an injunction was prayed to restrain the defendant from prosecuting any action at law upon the said deed against the plaintiff. To this bill a general demurrer for want of equity was put in. Mr. Rolt and Mr. Brett, in support of the demurrer, contended, that as the plaintiff himself was a party to the immoral act of which he complained the bill could not be sustained. He could not upon any principle of equity or morality be allowed to take advantage of his own guilt for the purpose of doing away with the deed which he had executed. The plaintiff could not claim relief when his right to relief was founded on his own turpitude. Cases cited in support of the demurrer. Mr. Bethell and Mr. A. Smith appeared in support of the bill, but were not called upon to argue the case. The VICE CHANCELLOR.-The instrument of October 1848 upon the face of it appears to be good: but what the plaintiff alleges is that the deed is void, because of his having been induced to execute it by a promise held out to him that if he would do so the defendant would live with him as his mistress, and so on; that such promise was, in effect, the consideration for the execution of the deed, but it does not appear that such consideration was ever carried out, or that anything was done. In fact, the connexion between the plaintiff and the defendant was altogether broken off. The plaintiff, however, states this inducement, and it does not appear there was any illegal living together in consequence of the expectation which the plaintiff might have had, so that the instrument was not acted upon. Under these circumstances, the demurrer must be overruled. Creditors' Suit-Exceptions - Insolvent Estate Voluntary Bond-Executor-Preference to Creditors Assets - Issue-Interested Party, Examination of, and Motion for. In a creditors' suit to administer the estate of an insolvent testator, his executor and son claimed to be allowed the amount of principal and interest due on a bond alleged by him, and admitted by the testator (as proved by a single witness) to have been given to the former for arrears of salary; and also the amount of principal due on two other bonds for valuable consideration from the testator to two creditors, which amount they had lent, after the testator's death and before the institution of the suit, to the executor personally, and from which they had released the testator's estate, but for which no part of the testator's assets had been paid or delivered to them by the executor :Held, on exceptions to the Master's report, that on such evidence as the above an issue ought to be directed to try the consideration of the bond given by the testator to his son: and, it being admitted that the executor had at the time of the transactions between himself and the bond creditors sufficient assets of the testator in his hands to satisfy the amount of those debts, that the executor was entitled to prefer them to others of equal degree, and to be allowed the payment of them in passing his accounts. Also, that it was immaterial to consider whether the assets had been converted into cash for the purposes of those transactions; and that they were not invalidated by the omission of an actual payment of cash or delivery of goods of equivalent value by the executor to those creditors. The executor, who was the defendant in the suit, was ordered to be the plaintiff at law in the trial of the issue. A motion by him, that he might be examined and cross-examined as a witness at the trial was refused. Such a motion as the above should be made, if at all, at the time when the issue is directed. These were exceptions to the Master's general report of the 31st of January 1848, and made under the usual decree in a cre Ralph Heslop, the testator mentioned in the pleadings, a wine-merchant, by his will, dated a few months before his death in December 1841, appointed his son, the defendant, John Heslop, sole executor, and gave him the good-will of his business, with an option of taking the stock in trade and furniture at a valuation. By the report it appeared that the debts and liabilities of the testator amounted to the sum of 12,0931. 12s. 4d., and the assets realized by the defendant at the time of the filing of the bill to 3,515l. 8s. 5d. The disbursements allowed by the Master amounted to 1,205l. 19s. 3d., leaving a balance of 2,3091. 9s. 2d. to be accounted for. The sum of 621l. 9s. 2d. paid by the defendant in discharge of certain simple contract debts had been disallowed, it not appearing that the estate would be sufficient to satisfy the specialty debts. The defendant having elected in December 1842 to take the stock in trade and furniture at a valuation, was charged by the Master with that amount, as of that date. The defendant in passing his accounts claimed to be allowed in his discharge the following, amongst other items: 500l. for principal, and 127. 10s. for interest, due to himself upon a bond from the testator, dated the 12th of October 1841, to secure the payment of the arrears of ten years' salary, at 50l. per annum, then owing from the testator to the defendant; 4301. due to the Rev. James Charnock on the testator's bond of the 26th of December 1841 for that amount, and which had been discharged by the defendant in his character of executor; and 1941. 11s. 6d., the balance due to the Rev. Joseph Mitton on the testator's bond of the 28th of August 1837 for the sum of 2001. and interest, and which balance had also been discharged by the defendant in his character of executor. The circumstances under which the bond had been given by the testator to the defendant were, as stated by the latter in his answer to interrogatories in the Master's office, that on the termination of his apprenticeship to the testator, the latter verbally agreed to allow him a salary of 50l. per annum, with board, lodging and clothing, for his services as clerk and traveller in the business of a wine-merchant. The subject of this allowance was first broached in 1828, when the testator dissolved partnership with his then partner, Mr. Nicholas Henry. No portion of the salary had ever been paid. In 1841, and a few months before the death of the testator, he was engaged in arranging his affairs, and the defendant then requested him to make some provision for the amount due to him, and pressed for a bond as security for it. The testator proposed to provide for it by a legacy in his will, but was afterwards induced to give the bond in question. The statement of the defendant, so far as it referred to the proposed legacy and the admission of the testator that the money was due, was corroborated by the affidavit of his brother, who had prepared the testator's will, but no other evidence was produced. The Master found that this bond was only voluntary, and that the payment of it ought to be postponed to that of the bond and specialty debts for valuable consideration. He also found that the executor ought to be considered as the purchaser only of the testator's bonds to Mr. Charnock and Mr. Mitton respectively in consequence of the mode by which they had been discharged by the defendant, which was as follows:-In April 1842, and before the defendant had proved the will, he applied to Mr. Charnock for the loan of 4301., the amount due to the latter upon the testator's bond, and Mr. Charnock agreed to advance that sum to the defendant upon having his debt from the testator's estate discharged, with interest. The defendant accordingly paid the interest then due (which payment was allowed by the Master), and gave his own bond for 430l. to Mr. Charnock in exchange for that of the testator, but no money except the amount of the interest passed between them. May 1842 the defendant also applied to Mr. Mitton for the loan of 4501., which the latter agreed to advance upon the security of the joint and several promissory note of the defendant and a surety for that amount, and upon the defendant's discharging a debt of 4501. due to Mr. Mitton on the bond of the testator for 2001., and on the joint and several promissory note of the testator and another for 2501. Mr. Mitton accordingly received the promissory note of the defendant and his surety, and delivered NEW SERIES, XVIII.-CHANC. In to the former the bond and promissory note of the testator. No money passed between the defendant and Mr. Mitton, except the amount of interest then due to the latter or. the testator's bond and promissory note, the payment of which interest by the defendant was allowed by the Master. The defendant excepted to the finding of the Master in respect of the testator's bond to himself, and the discharge of the bond debts due to Mr. Charnock and Mr. Mitton. Mr. Wood and Mr. T. Parker, sen. in support of the exceptions, submitted that under the circumstances above detailed, the Master ought to have found that the bond to the defendant had been given by the testator for valuable consideration-Rundell v. Lord Rivers (1), Whitaker v. Wright (2). With respect to the mode in which the bonds to Mr. Charnock and Mr. Mitton had been discharged, it was contended that the defendant, as executor, had a right to prefer some creditors to others of the same class. Although no money had actually passed, the defendant had at the time sufficient assets of the testator to answer the amount secured by the respective bonds; and therefore the transaction was a boná fide and substantial administration of the effects of the testator, and his estate was discharged pro tanto. [WIGRAM, V.C. The question was, whether the executor could in such a transaction plead plene administravit præter.] Mr. Willcock(with whom was the Solicitor General), for the plaintiff, contended that the Master had merely exercised a proper discretion in the conclusion at which he had arrived on the nature of the bond given by the testator to the defendant. There was no evidence of any contract having been made between them, except the defendant's own statement. As to the transaction between the defendant, Mr. Charnock and Mr. Mitton, it was a novel device. was allowed to stand, every executor might, for his own advantage, give a preference to any creditor over others of equal degree. It was merely a colourable administration. The defendant had substantially paid away If it (1) 1 Ph. 88; s. c. 11 Law J, Rep. (N.s.) Chanc. 27. (2) 2 Hare, 310; s. c. 13 Law J. Rep. (N.s.) Chanc. 367. 2 Ꮓ all the assets he had at that time, and he ought to be considered, as the Master had found, a purchaser only of the bonds, and be paid rateably with other similar creditors. It did not clearly appear from the report, that there were sufficient assets realized at the time of the transactions to answer the two last bond debts. Mr. Wood replied.-If there were sufficient assets at the time, the transactions will be good.-Williams on the Law of Executors, vol. 2, p. 1213, 2nd edit.; Gillies v. Smither (3) there cited. Although the report did not particularize the amount of assets from time to time, enough appeared from it to shew that in May 1842, the executor had in his hands assets of the value of 2,000l. and upwards. He had taken the stock in trade and furniture at a valuation, which was more than sufficient to cover those debts. Feb. 26.-WIGRAM, V.C., after briefly referring to the above facts, said that he must, with regret, take the course which the Master would probably have taken if he had had jurisdiction. The exceptions relating to the bond given by the testator to the defendant could not be overruled, without giving the latter an opportunity of trying by an issue, whether the testator was indebted to him at the time in the amount stated, with liberty for the Judge to indorse any special matter on the postea. On the other hand, the exceptions could not be allowed, without a similar opportunity of trying the question being given to the plaintiff, because, considering the difference. in effect between bonds for valuable and those for voluntary considerations, where the estate was insolvent, the creditors were entitled to throw the onus of proof on the obligee. At present the only evidence was the admission of the testator, made when he was suffering from the illness of which he very soon afterwards died. No discredit was meant to be thrown upon the defendant or his witness, by directing an issue. doubtedly a treaty of some kind about a salary took place as stated between the testator and the defendant in 1828 or 1831; but the question was, whether a contract was (3) 2 Stark. N.P.C. 528. Un then made between them upon which the latter could have maintained an action against the former. At present the evidence on the point was not satisfactory; but the cross-examination of the defendant's witness in relation to what passed between the latter and the testator on the subject of substituting the bond for the legacy might throw more light upon the question. The next set of exceptions applied to the finding of the Master in respect of the transactions between the defendant and the two bond creditors of the testator, whose debts the defendant claimed as executor to have discharged. The effect of those transactions, if they were to prevail modo et formá, would be to charge the assets with the payment in full of those bond creditors in preference to the others. None of the assets of the testator passed out of the hands of the executor into those of the two bond creditors in discharge of their debts; but the executor borrowed from each the amount of his bond debt, for which he gave his own personal security, and received from them in exchange the bonds which they held from the testator, and releases in full of all demands they might have in respect of the same on the testator's estate. The defendant contended that the above satisfaction of those debts was to be considered as payments; that he was not bound to go through the formality of transferring and receiving back the money or goods wherewith the debts were to be satisfied; that he had a right by law to prefer one bond creditor to another of equal degree; and that in passing his accounts he was entitled to have such satisfaction of the debts allowed as payments by him out of the assets as if he had actually paid them in cash. The Master, however, thought that under the circumstances he must be considered in equity to be only a purchaser of the bond debts, to stand in the place of the obligees, and to share rateably with the other bond creditors. Now, it was properly admitted in the argument, that if the executor had at the time in his possession sufficient cash from the testator's assets, the transactions would not have been invalidated by the omission of the form of handing it over with one hand and receiving it back with the other. But it was urged that the executor had not sufficient cash available for such satisfaction of those bond debts. The report did not furnish decisive information on the point at issue. If, however, it were assumed that the executor had wines and other stock in trade, if not cash, of the testator, at the time of the transactions, and of sufficient value for the satisfaction of those debts, the question would be, whether the possession of such assets would enable him to treat such transactions as payments. It must be confessed that, on principle, goods could not be distinguished from cash, nor one species of assets in hand from another. The executor might have paid or delivered either in satisfaction of the claims, and received back either; the legal effect would have been the same, and the omission of that form could not make any difference in the transaction. In point of fact, the testator's estate would be discharged in either case. If the possession at the time of such assets should be admitted by the plaintiff, the defendant's exceptions relating to his claim to be allowed these transactions as payments by him in his character of executor must be allowed; but if the possession should not be admitted, there must be an inquiry into the fact directed to the Master. With respect to the issue directed on the question of the bond given by the testator to the defendant, it was ordered that the latter should be the plaintiff in the action. April 26.-Mr. Wood and Mr. T. Parker, sen. moved, on behalf of the defendant (the plaintiff at law), that he might be examined and cross-examined as a witness at the trial of the issue directed in this cause. The grounds of the motion were that the proposed witness was the only person who could give evidence of the facts relative to the bond in question-De Tastet v. Bordenave (4), Gardiner v. Rowe (5), Harwood v. Harwood (6), Parker v. Morrell (7), Britten v. Watts (8), Milner v. Singleton (9). (4) Jac. 516. (5) 4 Mad. 236. (6) Ibid. cited. (7) 2 Ph. 460; s. c. 17 Law J. Rep. (N.S.) Chanc. 226. (8) In Bankruptcy, not reported. (9) V.C. July 14, 1840; Reg. Lib. 1839, fol. 1205; not reported. In the lastly cited case, both the plaintiff and the defendant were ordered to be examined. In Bankruptcy, no difficulty was ever experienced, and such indulgences as the present were frequently granted. Reference was also made to the following statutes, as instancing the inclination of the legislature to relax the rules of evidence as affecting the competency of witnesses on their own behalf-6 & 7 Vict. c. 85 (Lord Denman's Act); 9 & 10 Vict. c. 95 (Small Debts Recovery Act). The Solicitor General and Mr. Willcock, for the plaintiff in the suit, opposed the motion, as being contrary to the practice of the Court, except perhaps on interlocutory applications-Dan. Chanc. Prac. p. 1065. (Headlam's Ed.) In Howard v. Braithwaite (10), it was laid down by Lord Eldon at the hearing of the cause, that parties could not be so examined without mutual consent. Besides, the lapse of time since the issue was directed in the present case would prevent the Court from now entertaining the motion. Mr. Wood replied. April 27.-WIGRAM, V.C. said this was an application by the defendant in the suit, for the examination of himself as a witness at the trial of an issue which had been directed, and in which he was materially interested. The motion was not that both the plaintiff and himself should be examined; but indeed if it had been in that form it was very doubtful whether any practical good would have been effected. A motion of the nature of the present should have been made, if at all, at the hearing, because if proper to be granted, it must depend on very nice questions and distinctions which ought to be fresh in the mind of the Court. But after the case had been disposed of, a question of that importance could scarcely be decided without a rehearing. Waiving, however, that objection, ought the Court to make the order required? The rules of evidence were the same in equity and at law. the exception of the case of Milner v. Singleton, it did not appear to be the practice of the Court to make such orders in causes, otherwise than upon interlocutory applica (10) 1 Ves. & B. 374. With |