Vendor and Purchaser.

A testator directed his executors to invest a sum of 20,000l., and pay the interest to his wife for life; and after her death to pay 2,000l., part thereof, amongst the children of J. L. living at the death of the widow. The plaintiff, being one of the two children of J.L.. put up for sale by public auction what he described to be 1,000l. principal money, part of 20,000l. principal money invested in consols. The defendant became the purchaser ; and the plaintiff, by an indenture, which recited the will, investment, and purchase, assigned 1,000l. sterling, part of the legacy of 20,000l. At the death of the tenant for life, the 1,000l. in consols were worth 1,420l.: -Held, on appeal, affirming the decision of the Master of the Rolls, that the defendant was entitled to the whole 1,4207.

The circumstances of this case will be found in 6 Law J. Rep. (N.s.) Chanc. 259. The plaintiff appealed from the decision of the Master of the Rolls.

Mr. Tinney, Mr. G. Richards, and Mr. Malins, for the plaintiff, contended, that, from the use of the word sterling, and from the form of the covenants for title, it was clear, that the intention of the plaintiff was to sell, and that of the defendant was to buy the exact sum of 1,000l. sterling. That under the covenants, the plaintiff would have been liable to make up any deficiency, had the price of consols fallen, as he covenanted, that the sum of 1,000l. "should become payable. That the plaintiff, by his first application to the trustees, had shewn what he himself believed to be the nature of the transaction; and that if the legal effect of the assignment was contrary to the intention of both vendor and purchaser, it was a case for equitable relief.

Mr. Wigram and Mr. G. Turner appeared for the respondents; but

The LORD CHANCELLOR (without hearing them) said, that this was a very clear case. The manifest intention to be collected both from the particulars of sale and from the deed of assignment, was to sell absolutely the whole interest of the plaintiff, and, consequently, the defendant was entitled to the fund in its state of investment. He did not agree that the plaintiff would have been liable to make good 1,000l. sterling, in case there had been a deficiency.

As to the costs of the appeal, his Lordship said, he was clearly of opinion, that there was no reasonable ground for the appeal, and he thought the plaintiff was fortunate in not having been ordered to pay costs below. He must, therefore, dismiss this appeal, with costs.

{

Appeal dismissed, with costs.

HOARE V. JOHNSTONE. HOARE V. CAMPBELL.

M.R.
April 30.
Practice.-Evidence.

In an inquiry before the Master, the parties proceeded on affidavit :-Held, that the plaintiff could not use the answer of one defendant, as an affidavit against another co-defendant.

In this case, Mr. Campbell and Mr. Macqueen were two co-defendants, but after the answer of the latter had been put in, the bill was dismissed, as against him. At the hearing, certain inquiries were directed, and in the Master's office the parties agreed to proceed on affidavit, and the Master had permitted the plaintiff to use the answer of Macqueen in the way of an affidavit, as evidence against Campbell. One of the exceptions to the Master's report was on the ground that this evidence had been improperly admitted.

Mr. Pemberton and Mr. Beavan, in support of the exception.

Mr. Kindersley and Mr. Elderton, contrà.

The MASTER OF THE ROLLS.-The last of these exceptions which has been argued upon the present occasion, relates to the use which was made of the answer of the defendant, Mr. Macqueen, in the Master's office; and the question is, whether it is legal evi

dence to be used upon such an occasion. Now, certainly, there is no rule more distinct as to evidence than this, that it ought not only to be evidence in a matter in issue between the parties, but it ought to be the evidence of a person, disinterested, and giving it for the purpose of declaring the truth upon the occasion on which it is adduced. Now, the answer is an answer which is put into the bill filed by the plaintiff against the defendant in the cause, for the purpose of maintaining his own interest as against the plaintiff. It is put in as his defence to the demand made against him by the plaintiff, and states no more than that which, according to the advice he receives, applies to that particular purpose. It is put in for the purpose of promoting his own interest, not for the purpose of declaring the truth as a disinterested witness between two other parties, who are in contest together; and on that ground, and on that ground alone, I am of opinion that the answer is not legal evidence, to be used for the purpose for which it was used in the Master's office.

Trust-Limitations-Act 3 & 4 Will. 4. c. 27, Construction of.

What is a sufficient acknowledgment under 3 & 4 Will. 4. c. 27. to prevent a debt charged on land being prejudiced by the lapse of time.

When an estate is devised, subject to the payment of debts, the acknowledgment of the trustee is sufficient to prevent the operation of the statute, and the acknowledgment of the cestui que trust is not essential.

An acknowledgment, signed in initials by an agent of the trustee, held sufficient.

In the year 1802, the testatrix, Lady St. John became bound on a bond for payment of 3221. to certain persons now represented by the petitioners.

In 1804, she made her will, by which she directed all her own just debts to be fully paid, and she devised all her plantations in the island of Grenada, which formed the whole of her real estate, to Bennett and Townsend, in fee, upon trust

to sell, and in the first place to discharge the incumbrances affecting the same; and subject thereto, on the trusts thereinafter mentioned; and she bequeathed all her personal estate to the aforesaid trustees, upon trust in the first place for the payment and satisfaction of all her debts, and then in the discharge of her legacies; and her residuary real and personal estate, she bequeathed for the benefit of her son, Lord St. John, and his children; and she appointed her trustees and her son executors of her will.

The testatrix died in the year 1805, and her will was afterwards proved by the three

executors.

Bennett died in 1814, Lord St. John the son in 1817, and Townsend thus became the sole executor and trustee. The testatrix's estate was, at the time of her death, heavily incumbered; and the debt of the petitioners remaining unpaid, they made application to the trustees for the payment thereof; and, in answer to one of such applications, in October 1811, Townsend stated, "That there was little prospect of her debts being paid for many years;" and, in 1816, one of the petitioners wrote to Townsend, giving him notice of the bonds remaining unpaid, and in 1817 Wollaston again wrote to Townsend, and stated, "That he had been requested to ascertain whether the claim previously made was in proper order, or whether it would be necessary to take any legal steps, in order that the claim might be liquidated;" and, in October in the same year, Townsend wrote in reply, "That the notice formally given was fully sufficient for every legal purpose, and that he hoped in a very few years that her ladyship's debts would be fully paid." In the year 1823, another of the petitioners wrote to Townsend to inquire, when it was probable that the bond debts due to the petitioners would be liquidated; and, in answer to such inquiry, Townsend, by a letter, dated the 1st of March, 1823, said, "Be assured I shall be happy to discharge the bonds of the late Mr. Aubert (being the bonds in question) as soon as it is in my power, and of which I will give you or Mr. Wollaston the earliest notice. Should you visit Clifton, I shall be glad to give you any further information on this subject. A severe attack of gout

On Townsend's death, in 1824, a suit was instituted for the appointment of new trustees of the will of Lady St. John; and the present defendants were appointed new trustees, and the real estates were conveyed to them in August 1826, upon the trusts of the will. At that time, the incumbrances affecting the real estate had not been paid off. A creditors' suit, for the administration of the assets of the testatrix, was subsequently instituted; and the usual decree was made in June 1833. The Master made his report of the debts in November 1836, in which the debt of the petitioners was not included, in consequence of their having neglected to go in, before the day peremptorily fixed by the Master.

After the decree on further directions. the petitioners presented their petition, stating the above circumstances, which were verified by affidavit, and seeking to be allowed to prove their debts against the assets. The question argued was, whether, under the circumstances, the debt was barred by the statute 3 & 4 Will. 4. c. 27.*

Mr. Temple and Mr. W. R. Ellis, for the petitioners, contended, first, that the case was not within the statute, which, they argued, did not apply to cases of trustPhillipps v. Munnings (1): that if the act did apply, the time did not begin to run till after

By the 40th section of which act it is enacted, "That after the said 31st of December 1833, no action, suit, or other proceeding shall be brought to recover any sum of money secured by any mortgage judgment of lien or otherwise, charged upon or payable out of any land or rent at law or equity, or any legacy, but within twenty years next after, a present right to receive the same shall have accrued to some person capable of giving a discharge for or release of the same, unless in the meantime some part of the principal money, or some interest thereon, shall have been paid, or some acknowledgment of the right thereto shall have been given in writing, signed by the person by whom the same shall be payable, or his agent, to the person entitled thereto, or his agent, and in such case no such action, or suit, or proceeding shall be brought but within twenty years after such payment or acknowledgment, or the last of such payments or acknowledgments, if more than one was given." (1) 2 Myl. & C. 309.

1826; for, at that time, the incumbrances on the estate had not been paid off, and the first trust was for payment of these incumbrances: that the decree in the creditors' suit was before the passing of the act in question, and the petitioner's claim was under the decree-Sterndale v. Hankinson (2). Secondly, that the acknowledgment was sufficient to take the case out of the statute, being made by the sole executor and trustee, and, therefore, that the points which arose in Putnam v. Bates (3), and Atkins v. Tredgold (4), did not arise. They also cited Jones v. Scott (5).

Mr. Barber and Mr. Bacon, contrà.Phillipps v. Munnings has no application to this case.

[The VICE CHANCELLOR intimated, that since the statute, trusts were not excepted.]

The acknowledgment is not sufficient, for, in order to take a case out of the statute, it must be signed by the cestui que trust, or the party interested-Fearn v. Lewis (6); and the signature in this case is not sufficient, not being the signature of the party himself; and the signature "L. T." by initials, is not a signature by a party duly authorized.-Dickenson v. Hatfield(7), Upton v. Hill (8).

The VICE CHANCELLOR said, that if the acknowledgment by a surviving executor was not sufficient, it would be a great injustice. If, for instance, the cestuis que trust were infants, it would be impossible, according to such a doctrine, to give an acknowledgment which would take the case out of the statute; and the result would be, that a suit must, under any circumstances, be instituted, where, from the state of the assets, the debts could not be immediately paid. He considered, that, in this case, there had been an acknowledgment within the statute, and the decisions under Lord Tenterden's act did not apply. A trustee may admit, but such admissions do not im

(2) 1 Sim. 393.

(3) 3 Russ. 188.

(4) 2 B. & C. 23; s. c. 1 Law J. Rep. K.B. 288. (5) 1 Russ. & Myl. 255; since reversed by the House of Lords, August 1838; s. c. 2 Law J. Rep. C.P. 67.

(6) 4 M. & P. 1; s. c. 6 Bing. 349; 4 C. & P. 173; 8 Law J. Rep. C.P. 95.

(7) 5 C. & P. 46; s. c. 8 Law J. Rep. C.P. 95. (8) 12 Moo. 9.

Practice.-Petition-Costs.

Objections to the Master's report on taxation of costs, are properly taken by petition.

In this case the petitioner, Mr. Buchanan, had been employed as the solicitor of the plaintiff. By the decree, the costs of all parties had been directed to be paid; and the plaintiff, in 1836, ceased to employ the petitioner, who obtained an order for the taxation of his bill of costs. The Master, in the course of the reference, had taken into consideration matters which the petitioner contended he was not authorized in doing, and he therefore presented this petition for liberty to except to the Master's report.

Mr. Knight Bruce and Mr. Bagshawe took a preliminary objection to the form in which the petitioner had attempted to question the correctness of the Master's report, contending, that it ought to have been by exception, and not by petition.

Mr. Wakefield, Mr. Jacob, and Mr. H. Clarke, contrà, contended, that the petitioner was right in the course he had adopted, and that it had been the constant practice, since the time of Lord Hardwicke, to object to the Master's report as to costs, by petition. The case was argued at great length, and the following cases were referred to

Skip v. Harwood, Seton's Decrees, 335.
Pitt v. Mackreth, 3 Bro. C.C. 321.
Holbecke v. Sylvester, 6 Ves. 417.
Lucas v. Temple, 9 Ves. 300.
Purcell v. M'Namara, 12 Ves. 166.
Brodie v. Barry, 1 J. & W. 470.
Fenton v. Crickett, 3 Mad. 496.
Ex parte Leigh, 4 Mad. 394.

Shewell v. Jones, 2 S. & S. 170; s. c.
3 Russ. 522; 3 Law J. Rep. Ch. 54.
Chennell v. Martin, 4 Sim. 340; s. c.
9 Law J. Rep. Chanc. 208.
Jenkins v. Briant, 6 Sim. 603; s. c.
3 Law J. Rep. (N.S.) Chanc. 169.
Drever v. Maudesley, 7 Sim. 240; s. c.
4 Law J. Rep. (N.s.) Chanc. 162.
Alsop v. Lord Oxford, 1 Myl. & K.
564; s. c. 2 Law J. Rep. (N.s.)
Chanc. 174.

The Attorney General v. Brown, 1 Myl.
& K. 567.

2 Smith's Practice, p. 338. And see Stocken v. Dawson, 5 Law J. Rep. (N.S.) Chanc. 123.

The VICE CHANCELLOR, after referring to the order made by Lord Hardwicke, in Skip v. Harwood, and after adverting to the other cases cited during the argument, said-The cases of Alsop v. Lord Oxford and The Attorney General v. Brown are of no other importance than that, in the former case, a petition was presented for the obtaining a review of the Master's report on his taxation of costs, and no objection was raised to that mode of proceeding; in the second case, the application was by motion, and Lord Lyndhurst said, that “in his opinion a motion was not the proper course," thereby adopting the argument of the Attorney General, that a petition was the proper course. The objection to the enormous costs in the case of The Skinners' Company v. the Irish Society, which was before me, was also by petition (1); and in the paper of petitions, at the very time when the present case came before me, there was a petition for a similar purpose; and it appears to me, that after Lord Hardwicke has expressly made an order on petition, and after so much has been said and laid down by succeeding Judges, asserting that a petition was the proper course, and considering that petitions have been so common for that purpose, I must overrule the objection in this case, and the petition will therefore remain to be heard on the merits.

(1) Vice Chancellor, December 1836, and January 21, 1837.

M.R. April 21; May 31.

MACKINNON v. PEACH.

Bequest of plate to two legatees, to be divided between them share and share alike, and upon the demise of either without lawful issue, then the share of her dying to go to the other. One of the legatees died in the lifetime of the testator :-Held, that the other was absolutely entitled to the whole.

66

A testator having two daughters, gave, by his will, to each of them, an annuity of 2001. a year for her separate use; he afterwards expressed himself_thus: believing that 2,2001. a year will be sufficient for my dear daughters, together with the use of my house and furniture, I direct the residue to be invested; should the lease and furniture of my house be sold, the yearly income of my daughters, so long as they remain unmarried, is to be made up to 2,500l." One of the daughters afterwards died, and the testator by a codicil, gave to the surviving daughter "a further sum of 100l. a year in addition to the 200l., the 300l. to be for her separate use; and being most anxious to secure her comfort and happiness," he gave her a NEW SERIES, VII.-CHANC.

was a gift in joint tenancy, and that the surviving daughter was entitled to two legacies of 2,2001. a year and 1,000l. a year.

The questions in this case arose upon the construction of the will of Charles Mackinnon, esq. The testator, at the date of his will, had two daughters, the plaintiff and her sister Maria Sophia; and by his will dated the 22nd of March 1831, after giving and devising all his worldly estate or property to his trustees, upon the trusts thereinafter mentioned, the testator thus expressed himself: "I request that my plate and plated ware, together with the pearls and other articles in my possession, may be divided between my dear daughters Maria Sophia and Sophia Jane, share and share alike; and upon the demise of either of them without lawful issue, then the share of her so dying shall go to her sister, and failing of my said dear daughters and their lawful issue, the said plate and plated ware, pearls, and other articles, are to be sold, and the proceeds or sale value is to be in the meantime laid out as

2 F