A testatrix, after various specific bequests, gave to A. all her other personal estate and effects; by a codicil she gave A. certain specific articles, and bequeathed to B. all her said property not named in her will:-Held, that the gift to A., contained in the will, was altered by the codicil; that A. was entitled only to the specific articles given him by the codicil; and that B. took the residue not named in the will.

Semble-Stock in the public funds will in general pass under a bequest of securities for money.

Quære-Whether bank stock will pass under a bequest of securities for money?

Mary Kerby, by her will, dated the 28th of August 1816, after various devises and bequests, gave to her niece, Catherine Bescoby, "all such other furniture and effects as should be expressed for the said Catherine Bescoby, in any codicil or paper writing, signed by her (the testatrix), and annexed to her will, and found therewith." And she gave to her nephew, Richard Pack, all her other personal estate and effects (except monies and securities for money and clothes). She then gave all her monies, and securities for money, and all monies whatsoever owing to her at her decease, to her executors, upon trust, to pay certain legacies, and "to place out the residue of the said trust monies at interest upon good security, and to pay the interest thereof to her said niece, Catherine Bescoby, for her life, and after her decease, to pay and apply all the residue of the said principal trust monies unto and equally amongst all her children." Lastly, she gave all her clothes and wearing apparel unto her nieces, Elizabeth Fox and Mary Fox, and her servant Elizabeth Coslett, if living with her at her decease.

By a codicil, dated the 26th of October 1818, after disposing of some articles of furniture, and varying some legacies and annulling others, the testatrix gave to her nephew, Richard Pack, "all her stock belonging to the farm, waggons, carts, hay, corn, and other utensils belonging to said farm; also the wine, ale, and beer, that might be in the cellar; and all her said property belonging to her whatsoever and

wheresoever, that she hath not named in her will, she gave and bequeathed to her said niece, Catherine Bescoby, for her sole use and benefit."

The bill was filed by some of the legatees, against the executors, and the other persons

who took an interest under the will and codicils of the testatrix.

Mr. Horne for the plaintiffs.

Mr. Bell and Mr. Beames, for some of the defendants.

Mr. Heald and Mr. Pemberton, for defendants in a different interest.

The testatrix, at her death, besides mortgages and other securities for money, was possessed of large sums of three per cent. consolidated bank annuities, and five per cent. navy annuities, and also, of some bank stock.

The first question was,-Whether the three per cent. and five per cent. stock, passed by the bequest of all her monies, and securities for money, and monies owing to her?" Mr. Horne argued, that, unless the stock passed under the term "securities for money," the legacies, charged upon those securities, would be disappointed for want of funds so pay them. Mr. Bell insisted, that the proprietor of stock could not force any person to give him money for it, and that, therefore, it could not be held to be a security for money.

Vice Chancellor.-My opinion is, that, in this will, stock in the public funds will pass under the words "securities for money." Further, I am inclined to think, that in every will, such stock will pass under those words, unless there be found in the mind of the testator an intent to qualify what at present seems to me to be the general import of the phrase, "securities for money.' However, I will not decide so important a point, without further and more solemn argument.

The point was not argued again; the parties having come to a private arrange

ment.

Another question was,-Whether bank stock passed under the words, securities for money."

Mr. Bell argued, that a proprietor of bank stock was merely entitled to a certain

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proportional share of the profits and funds of a particular partnership; which funds were composed, partly indeed of monies lent to government, but partly, also, of many other things.

Vice Chancellor.-In many acts of parliament, bank stock is recognized, and is spoken of in a particular way. Therefore, though, generally speaking, a share of a partnership is not a security for money, yet it does not follow, that bank stock may not be so, if particular acts of parliament have given it that character.

However, this point (like the former) was not decided.

Another question was,-Who was entitled to the residue of the personal estate of the testatrix, not named in her will or codicil.

Richard Pack claimed it under the will; Catherine Bescoby, under the codicil.

Vice Chancellor.-The question upon the codicil is,-Whether it does not cut down the general gift, contained in the will, of the residuary personal estate to Richard Pack?

This lady, by her will, first disposes of her freehold, leasehold, and copyhold property. She then gives certain effects specifically, reserving to herself the power of disposing of other articles in favour of her niece, Catherine Bescoby, by any codicil signed by her, the testatrix, and annexed to or found with her will. Next, she gives to Richard Pack all other her personal estate, except monies, securities for monies, and clothes ;" and lastly, she disposes of the parts of her property, which were thus excepted. At the time of making this will, she has in view the annexation of a codicil to it.

Accordingly this codicil is made. She begins it by a list which she calls, " An inventory of the furniture belonging to me, Mary Kerby ;" and then she says, "I give the above-named property to my three nieces." Thus, she had so far altered her. intention as not to give the enumerated articles to Catherine Bescoby alone, (according to the purpose expressed in the will), but to her and her two sisters. The testatrix next makes alterations in some pecu

niary legacies; and, after that, comes to consider and modify that part of her will, which relates to her nephew, Richard Pack. She had given him "all her other personal estates (except monies, securities for money, and clothes); " but by her codicil she gives him all her stock belonging to the farm, waggons, carts, hay, corn, &c. together with the wine and beer in the cellar. Now, if she meant the gift to Pack to stand as in her will, all this is absurd; for the articles here specified would pass under the former general gift. It could not, therefore, have been her meaning, to make an addition to her bequest, to give him something not given by the will; and this shows, that she was contemplating a change in the disposition made by her will. It was her purpose, that Pack should take the articles here specified, by the gift in the codicil, and not by the gift in the will.

The testatrix adds,-" And all my said property belonging to me, whatsoever and wheresoever, that I have not named in my will, I give and bequeath unto my niece, Catherine Bescoby." Upon the whole, therefore, it is as if the testatrix had said,— "By my will, I have given the whole of my property, not named, to Richard Pack: I have altered that intention: I will give him certain specific articles not named in the will; and all the rest of my property, not therein named, I will give, not to Richard Pack, but to Catherine Bescoby."

The only word, not satisfied by this interpretation, is the word said in the gift to Catharine Bescoby of all the testatrix' said property not named in her will. "Said," must here refer to the specific articles before enumerated and disposed of-in strict grammatical construction, to the wine and beer in the cellar; so that no meaning, which can be given to the clause, will satisfy this word. It has been argued, that said must here be explained ejusdem generis; but such a construction would be completely arbitrary. The word said must be rejected altogether; for no sensible meaning can be given to it.

Catherine Bescoby was declared to be entitled to the residuary property not named in the will, or specifically given by the codicil.

The court will not expunge, as impertinent, matter contained in the answer, which, though not necessary and not called for by the bill, is in itself not altogether irrelevant, and might be useful to the defendant, in case his answer were read against him, at law.

Semble Where matter, though not impertinent, is not necessary, the Court will, on application, order the party who introduces it to pay the costs of it.

The plaintiffs were merchants in London; the defendants were also merchants, who had a commercial establishment at Calcutta. The bill prayed, that an account might be taken of the dealings and transactinns between the parties-of the goods consigned by the plaintiffs to the defendants of the proceeds of the sales thereof-and of all sums of money received or disbursed by the defendants, on account of the plaintiffs, after the 1st of January 1818.

The bill interrogated, whether Fairlie and Co., in respect of the discharges and transactions mentioned, did not receive and pay on account of Parker and Co. divers sums of money, to a large, and what amount in the whole-whether an account was not thereby created and did not subsist between them-whether, in 1818, and subsequently thereto, and when, Fairlie and Co. did not, for or on account of the plaintiffs, sell and dispose of large or some and what quantities of silver brought by two ships, named the Mary Anne and the Brilliant, and whether the said defendants did not receive, in respect of such sales, divers large and what sums of money?

The answers referred to an account al

ready delivered by the defendant, and then set forth a copy of it in a schedule. This account contained a minute statement of the different items resulting from the transactions between the two parties.

The Master having reported this schedule impertinent, exceptions were taken to the report.

Mr. Bell and Mr. Grant were for the exceptions.

Mr. Horne and Mr. Palmer, for the report.

Vice Chancellor.-One ground, on which this schedule is challenged as impertinent, is, that it is merely a copy of an account, which is stated by the answer to have been delivered by the defendant to the plaintiff. That circumstance, however, is of no weight in the present question. If a party, having previously received an account of certain transactions, chooses to call for that account by his bill, he is entitled to have it; nor can he complain, if the defendant gives him that which he has himself asked for. It would be no answer to an interrogatory demanding an account, to say, that an account had been already delivered. It is not on this ground, therefore, that the schedule can be held to be impertinent.

A plaintiff, who files his bill for an account, may, if he pleases, content himself without calling upon the defendant to give in his answer, any information as to all the minute items of that account. To take a contrary course is seldom or ever prudent: sometimes, however, it may be both prudent and necessary; for there are cases, in which the particulars of the account, if disclosed in the answer, may open new clues of investigation. But until there is some such special reason, it is in general better to obtain a decree for an account, and then to have the items minutely detailed and examined in the Master's office. The established practice of the court, proceeding upon clear principles, gives to the plaintiff the option either to proceed in this way, or to require the defendant at once to set forth the particulars of the dealings and transactions between them, and to produce the books containing the accounts in question. If the defendant sets forth the parti. culars of the accounts, without being called upon to do so, that unquestionably, though perhaps not irrelevant to the matter of the suit, must be held to be impertinent.

Now, what has this plaintiff called for? He inquires," Whether by means of such dealings and transactions as aforesaid, the said house of Fairlie and Co. did not receive and pay on account of your orators, divers sums of money to a large and what amount in the whole?" What the defendant is here asked to disclose, is, not the particular sums received, but their total amount. It is not by this interrogatory, that the defendant can be justified in annexing to his answer a schedule, containing every sum which he has received.

The plaintiffs then inquire particularly, whether Fairlie did not sell on their account some, and what quantities of merchandize, imported on board the Mary Ann and the Brilliant; and here the defendant must enter into the particulars of these commodities; but he is not at liberty to travel into the details of any other transactions than those which relate to that part of the cargo of these two vessels, which is thus made the subject of specific interrogatories. Further, the defendant is asked, whether Fairlie and Co. did not, in respect of those sales (that is, of the sales of certain articles which were part of the cargo of the two ships above mentioned), recover divers large and what sums of money? This is all in the way of account, which the bill asks for? What right, then, can the defendant have, to load the plaintiff with all the expense necessarily occasioned by a schedule like this, containing the particulars of every transaction between the parties.

But then, it is said, that the schedule cannot be held to be impertinent in toto; because, though it has set forth all the transactions between the parties, yet, in doing so, it has given the details and items of that single transaction, as to which a particular account is sought; and, therefore, that it cannot be impertinent, so far as regards that which is the subject of special inquiries. Were it to be expunged, the answer would necessarily become insufficient.

The doctrine established in Norway v. Rowe, removes this difficulty. Where a schedule contains matter, which is impertinent, intermixed with matter which is not

19 Vesey, 144, 1 Merivale, 135.347.

impertinent, if the matter, that ought to be set forth, is clearly separable from matter that ought not to have been set forth, the court would be exposing the party to unnecessary expense by suppressing the whole, and will, under such circumstances, leave it to the Master to make the separation. But if the matter which is impertinent, and that which is not impertinent, are so blended, that the particular information sought cannot be distinguished with convenience and facility, the defendant shall not impose that difficulty upon the plaintiff; but the whole schedule shall be suppressed, and the defendant must set forth in due form the matter specially inquired after.

In this schedule, the matter that ought to have been set forth, is not clearly and conveniently separable from that with which it is improperly blended. The whole schedule, therefore, must be suppressed.

In this cause another question on the subject of impertinence arose, in respect of the following circumstances.

Among the transactions, of which the bill sought an account, was one which related to a speculation in cotton. Parker and Co. gave a commission, to Fairlie and Co. at Calcutta, to purchase for them a certain quantity of East Indian cotton. In 1818, the cotton was bought, and shipped for England. The bill alleged, that Fairlie and Co. had executed their commission negligently and improperly; that the cotton was of an inferior quality, leafy, and of a bad colour; that it was not fair ordinary cotton, and that, neither in respect of price nor of quality, was it such as Fairlie and Co. had been instructed to purchase. Upon the sale of this cotton, (which took place by consent, without prejudice to the rights of the parties), a considerable loss was sustained; and part of the prayer of the bill was, that, in taking the accounts of the dealings between Parker and Co. and Fairlie and Co., the former might be charged only with the net proceeds of the sale of the cotton, and not with the actual cost of the cotton, and, in the mean time, that the defendants might be restrained from proceeding at law, for the recovery of what

they claimed as due to them in respect of

the cotton.

The bill put upon this part of the case, the following interrogatories;-Whether the cotton was not of very inferior quality? Whether it in fact was, or could be considered, fair, ordinary cotton? Whether it was not leafy and of a bad colour?

Fairlie had no personal knowledge of the transaction, which had been conducted by partners, who were not within the jurisdiction of the court. He denied, however, to the best of his information and belief, the truth of the case, stated by the plaintiff; insisting that the cotton was of a good quality and such as it ought to have been, and that he had valid and reasonable grounds for entertaining such a belief upon the subject. The following was the part of his answer, which now came under the consideration of the court:

"And this defendant further answering, denies, as to his information and belief, that the said last-mentioned cotton was of a very inferior quality; on the contrary, he believes, the same would be considered, and was in fact superior to fair ordinary cotton, and was so held and considered; and, as evidence thereof, this defendant saith, that he hath received divers certificates and affidavits, which, since the raising of the question now pending between the said firms of the said complainants and Fairlie and Co. respectively, the said other defendants, now in India, have caused to be duly made by divers persons, who (as this defendant has been informed and believes), were well acquainted with such last mentioned cotton, at or about the time of the same being so bought on account of the said complainants' said firm, or with other cotton of the same sample, and are experienced in and well acquainted with, and good and competent judges of the article of cotton in general, as grown in the East Indies, and certain of which affidavits in particular, this defendant saith, were made by the persons employed in the process of packing and screwing down the said cotton for shipment; in which process, this defendant saith, every part and single pound of the article doth and must necessarily undergo the minutest inspection and examination, &c.; and that such persons do, in their said several certificates

and affidavits, give their opinions and judgments respectively as to the qualities or price of the said cotton; and from such affidavits this defendant doth collect and confidently believe, that such cotton was superior to an ordinary quality, and to be classed with the best description of Bengal cotton procurable in Calcutta at the time, and was of a fair and reasonable price. And this defendant saith, he hath, in the second schedule to this his answer annexed, and which he prays may be taken as part thereof, set forth fully and at large, the words and figures, and all and every the contents and particulars of the said several certificates and affidavits respectively, with the names and descriptions of the several persons, by whom the same, and every of them, were and was respectively made and sworn.”

The schedule which was thus annexed to the answer, and referred to by it, set forth the following documents at full length :

1. Affidavits by persons, who described themselves as qualified to judge of the price and goodness of East Indian cotton, that the cotton in question was superior to ordinary cotton.

2. An affidavit of one Clarke, a partner of the defendant, resident in India, made for the purpose of identifying the cotton spoken of in the first-mentioned affidavits, with the particular cotton in question in the

cause.

3. An invoice and account current, referred to in Clarke's affidavit.

4. The certificate of a notary public, verifying the several affidavits.

The invoice and account current, and also some of the affidavits, related partially to other matters besides the cotton.

The Master reported the whole of the schedule to be impertinent; and to this part of his report an exception was taken.

For the exception it was argued, that the defendant, having no personal knowledge of the transaction mentioned in the bill, could answer the interrogatories only according to his belief and information; and how could he do so better, than by stating the information which he had received, and upon which he proceeded in his defence upon oath to the suit. The matter of the schedule, far from being impertinent, was of the utmost importance to the final event of the cause. The whole of it was clearly