and that there was no difference, whether the property consisted of land or money, and that a cestui que trust of land might always sue the party in possession-Cathcart v. Lewis (1). It was further urged, that there was a charge of collusion and pretence against the defendant, contained in the bill, which the defendant could not dispute, but must admit as true, for the purpose of arguing the demurrer; and that admissions (as in the present case) by one of two partners after a dissolution has taken place, was good evidence against the firm -Wood v. Braddick (2). Pritchard v. Draper (3) was also cited.

The VICE CHANCELLOR. -Where special circumstances appear in cases like the present, the Court will interfere to assist the assignee to recover the debt assigned to him. If, however, this case before me were denuded of special circumstances, it would be simply the case of a right to sue in the names of Wilks and Wooler for the debt in question of 80l. As the case stands, the bill is one which the Court is not in the habit of seeing. This Court permits a bill to be filed by an assignee against a debtor, if the creditor manifests an intention to interpose to prevent the assignee enforcing his right, and this Court possesses a fund out of which it can make the debtor pay in the first instance. I have no recollection of a bill like the present, unaccompanied by special circumstances; and, it is now to be seen, whether there is any thing before the Court to justify the instituting the bill against the debtor at law. The bill states the instrument, by which it was agreed, that the partnership should be dissolved, and the plaintiff pay the debts, and be entitled to the partnership assets; and that Messenger was indebted to the plaintiff as assignee in the sum of 801., a debt due from Messenger to the firm: the bill then proceeds to state the notice to Messenger to pay the debt to the plaintiff; the right of the plaintiff as the assignee thereof; that on the 2nd of October 1837, the plaintiff

(1) 1 Ves. jun. 463. (2) 1 Taunt. 104. (3) 1 Russ. & Myl. 191.

applied to Messenger, and that Messenger pretended that he was entitled to pay the same to Wilks and Wooler, and a bill was filed to restrain Wilks from suing for money due to Wilks and Wooler, and from giving receipts; and an injunction has been obtained for that purpose. The bill then states the application to Messenger, and that he, colluding with Wilks, denied the debt: that Messenger became a trustee of the debt-(but that allegation does not make Messenger a trustee, unless the circumstances of the case will have that effect). It then states, that Wilks and Wooler pretend that there is a private debt due to Messenger, and that Messenger has a right to set it off, and that he has a right at law to avail himself of that circumstance; and, further, that Messenger, colluding with Wilks, has possessed himself of a release from Wilks and Wooler. This is an allegation that he has it in his power-that is, it is an allegation of fact; it is then charged, that if such release were given, it was given without Wooler's consent. In Stansbury v. Arkwright the bill did not allege that there was any outstanding term or estate, but merely that the defendant threatened to set up some outstanding term or legal estate; and, in the present case, the statement amounts to this, that the defendant has alleged a fact, not that what he has alleged is a fact. If it were stated that there was an intention on the part of Wilks and Wooler to give, and Messenger to receive, a release, that would be a ground for interfering. The bill prays, that Messenger may be decreed to pay the debt, or that an account may be taken, and that Wilks and Wooler may be decreed to allow the use of their names in an action at law, to be commenced by the plaintiff, and that Messenger may be restrained from pleading any release, or availing himself thereof; but what is the meaning of that, I do not know. However, the case is wholly denuded of these special circumstances, upon the existence of which it is the practice of this Court to allow such a bill as the present.

Demurrer overruled, with liberty to amend, on payment of the usual

costs.

C.B.Ex parte PAYN in re THE GREAT Nov. 10.S

WESTERN RAILWAY ACT.

Will-Devise-Trust.

A recommendation by a testator to his devisee, in case of her marriage, to settle the devised estate in a specified way,—Held, not to amount to a trust.

The testator, having by his will, devised certain lands, &c., absolutely to his daughter in fee, subsequently went on as follows: "And I do hereby declare, that the estate and property hereinbefore devised and bequeathed by me to my said dear daughter, is intended as some reward for her affection, unwearied and unexampled attention to me during my illness for many years, and is kept separate from the other interests she will take under this my will, as a memorial and testimony thereof. And I direct my said daughter to keep the buildings, gardens, and premises in good repair, order and condition, and in case she should happen to marry, I strongly recommend her to execute a settlement of the said estate, and thereby to vest the same in trustees, to be chosen and approved by her, for the use and benefit of herself and her assigns for her life; with remainder to her NEW SERIES, VII.-EXCHEQ. IN EQ.

husband and his assigns for his life; with remainder to all and every the children she may happen to have, if more than one, share and share alike, and if but one, the whole to such one; or to such other uses as my said daughter shall think proper, to the intent that the said estate, in the event of her marriage, may be effectually protected and secured."

The Great Western Railway Company, having purchased a portion of the property in question, for the purpose of their undertaking, and conceiving that the words of the will left it doubtful whether the devisee took an estate for life only or in fee, paid the purchase-money into court, under a clause in their act, which directs that mode of proceeding, in the case of a purchase from infants, tenants for life, and other persons under legal disabilities.

Mr. Monro, on the part of the devisee,' who was fifty-eight years of age, now appeared in support of a petition, praying to have the money paid out of court to her absolute use. He contended, that under the words of the will, she took absolutely, and that there could be no trust, because neither the persons to whom the estates were limited, nor the estates themselves, were certain. Even if the petitioner were to marry, and

B

An amendment after answer to a bill of discovery, in aid of a defence at law, for the purpose of inquiring and obtaining further information, as to matters stated in the answer, will not be allowed, if the facts disclosed to the plaintiff previous to the filing of the bill, were sufficient to put him upon making such inquiry originally.

On the 24th of September 1834, the defendant, James Campbell, a resident at Para, in South America, entered into a contract with the Brazilian government, to order from England a certain quantity of arms, accoutrements, &c., to be delivered in conformity with models which were delivered to him, he undertaking that the arms should be well manufactured, and of the best quality, according to the patterns, &c. It was provided, that the arms should be for the account and at the risk of the defendant, as far as the city of Para, and should be delivered at the door of the Custom-house of that place, to the agents whom the Brazilian government should name, &c.; and one half of the stipulated price was to be paid immediately, by bills of exchange drawn by the Treasury of the province of Para on the province of Maranham, and the remainder of the payment was to be made as soon as the arms, &c. should be received by the government, in bills drawn on the same firm.

The defendant gave security for the completion of the contract in conformity with its terms; and it was signed by the defendant James Campbell, and by several members of the Brazilian government on its behalf.

In order to fulfil the contract, the defendant wrote the following letter to Messrs. Bates and Barrows, of Birmingham, ordering the goods:

"Para, 27th September 1834. "Gentlemen,-A recommendation from my neighbour and friend Mr. James Henderson, has induced me to take the liberty of addressing you on the following subject. I have lately contracted with the Brazilian government to furnish them with arms and accoutrements as per inclosed list, which they are extremely anxious should be executed with as little delay as possible, and have shipped by this conveyance, the Para Packet to London, a box containing patterns of each article for which you have a bill of lading inclosed; I wish you, therefore, to order the box to be forwarded without delay, in order to enable you to prepare executing the order as soon as you receive funds for this purpose, as my friends at Maranham, Messrs. Mendoz & Season, will be put in funds by the first conveyance from this, to remit you in good bills on London by the first opportunity, and, I trust, the remittance may reach you in all November; the sum to be remitted you will, by last advices of the exchange, be about 3,600l. or 3,700l., which, from the nearest calculation that could be made here, will fully cover the cost of the order; should this, however, not be the case, you may rely on being remitted in due time, after hearing from you, in the same manner, for whatever the invoice may exceed the amount of the bills, as I have security from the government to double the amount of the order; or should you require any further information or security, I beg to refer you to Mr. Neil Campbell, Greenock."

In consequence of this order, Messrs. Bates & Co. through their agents, Messrs. Robertson & Co., of Liverpool, shipped the goods so ordered on board the Clio, of Liverpool, insuring them in two policies, which were underwritten by the plaintiffs, from Liverpool to Para. The policies were dated the 7th of August 1835, on which