against an agent, unless he charges collusion and misconduct, as between the agent and the principal.

In the argument, some reliance has been placed on collateral allegations,supposed not to be covered by the plea : such as the allegations, that the commissioners were expressly ordered to pay the plaintiff's demand; that they coinmunicated these orders to the defendants; and that the defendants have in their custody various papers and documents, from which the truth of the case made by the bill would appear. The objection, which is only one of form, cannot be maintained; for the plea itself is a denial of these allegations.

Plea allowed.

the Court could no longer interfere, and that an order upon any of the parties was inconsistent with the order of reference.

To this it was replied, that the application was against the receiver; and that although to save expense to the estate, the duties of receiver had been intrusted to the defendant, he was not on that account entitled to any privilege or indulgence. He had the balance in his hands only as receiver, and not as party; and the reference had no concern with the duties of the receiver.

Vice-Chancellor was clearly of opinion, that the receiver ought to pay the balances into Court, and that the order of reference was no objection to the present application.

Where one of the parties in a cause is appointed receiver, and afterwards, by a consent order, all the matters in dispute in the cause are referred to arbitration, this order and the pending reference will not be any objection to making such application to the Court, as may be necessary, in order to compel the party who is receiver, to pay in to the credit of the cause such sums as the Master shall have reported due from him, in his character of receiver.

This was a suit relating to partnership accounts, in the progress of which the defendant, who was one of the partners, had been appointed receiver. The reason of his appointment was, that he offered to discharge the duties of the office without remuneration. Before the cause came to a hearing, an order was made by consent, referring all the matters in dispute to arbitration; but that order had not yet been acted upon; nor, although a considerable interval had elapsed, was it as yet drawn

15,000l. being charged upon certain lands by way of portions for younger children, in equal shares, subject to the appointment of it among them by the father; one of the children, in consideration of a large sum advanced to her in contemplation of her marriage, by her father, who was the then tenant of the premises, releases to him and his heirs all her interest in the lands; this does not operate as an extinguishment of her part of the 15,000l., but the father will take that part as a pur

chaser.

The father being entitled, as a purchaser, to dispose of part of the 15,000l., by his will bequeaths the whole of it to his three daughters, who were not then advanced; shortly afterwards one of them, A., having married, and having received from him 10,000l., he, by a codicil reciting that circumstance, revoked the appointment of the 15,000l. made by him in his will, so far only as respected A. and her proportion of the same, and not further: Held, that the two remaining daughters were entitled to the whole 15,000l., and that the codicil was not merely a revocation of the gift to A.

By a settlement made on the marriage of Paul Cobb Methuen, dated the 6th of April 1776, to which his father, Paul Methuen, was a party, considerable estates were conveyed to certain uses. Among

these uses was a term of 500 years, which was limited to two trustees upon trust, in case there should be two or more children of the intended marriage, other than an eldest or only son, to raise by sale or mortgage, or otherwise, the sum of 15,000l. for the portions of such two or more children, in such shares and proportions as Paul Cobb Methuen, by any writing or writings under his hand and seal, executed in the presence of two or more witnesses, or by his last will and testament or codicil thereto, executed in the presence of two or more witnesses, might direct and appoint. In default of appointment, the sum of 15,000l. was to be divided equally among them; the shares of the sons being payable upon their attaining respectively the age of 21, and the shares of the daughters upon their attaining that age, or being married, which should first happen. With respect to the shares of the daughters, it was further provided, that, if any daughter attained that age, or married in the lifetime of Paul Cobb Methuen, her share of the money should thenceforth be deemed a vested interest, but should not be payable till six months after the decease of Paul Cobb Methuen, unless he should, by writing under his hand, otherwise direct, and that from his death it was to bear interest at the rate of 4 per cent. per annum.

It was also declared, that if Paul Cobb Methuen should in his lifetime settle or give, unto or for any child or children of the marriage entitled to portions under the trusts of the term, any money, lands or goods, towards their advancement in marriage, or otherwise, such money, lands and goods, were to be taken in satisfaction, in whole or in part, of the portions thereinbefore provided, unless Paul Cobb Methuen should, by writing under his hand, signify the contrary.

The marriage took place shortly afterwards. There were issue of it, nine children-four sons and five daughters.

Paul Methuen (the grandfather of these children), by his last will, dated the 10th of April 1793, empowered and directed his devisees in trust, upon the request or consent of Paul Cobb Methuen, by deed or will, and not otherwise, to sell and dispose of certain real estates, and out of the purchase-money to pay 20,000l. to and

amongst the second and other younger sons of Paul Cobb Methuen who should attain the age of 21, in such shares as their father should think expedient. This 20,000l., the testator declared, when so paid, was to be accepted by the second and other younger sons of Paul Cobb Methuen, in full satisfaction of his and their share of the sum of 15,000l. provided for the portions of younger children by the aforesaid marriage-settlement; which 15,000l. was to be left to be shared amongst the remaining younger children.

Paul Methuen died in 1795.

In May 1804, Matilda, one of the daughters, intermarried with the Honourable George de Grey, now Lord Walsingham. Previous to that event, her father, by deed poll, dated the 12th of May, and so executed as to be a due execution of the power in his marriage-settlement, appointed to her 3000l. as her share of the 15,000. Upon her marriage, he paid 2000l. to the husband, and settled 5000l. as her portion; in consideration of which sums, she and her husband executed a deed poll (which was executed also by Paul Cobb Methuen), purporting to be an assignment to Paul Cobb Methuen of the sum of 3000l. which had been appointed to her, and of all the right and interest of her husband therein.

Ann Christian, another of the five daughters, attained 21, and, in March 1808, died intestate. Her father took out letters of administration to her.

By his will, dated the 12th of October 1809, executed so as to be a valid execution both of the power contained in his marriage-settlement, and of the power given by his father's will, Paul Cobb Methuen directed the 20,000l. to be raised out of the estates on which that will charged it; and this sum he apportioned in shares of 1000l., 9000l. and 10,000l., among his three younger sons respectively. He then directed, that, "in further performance of the will of Paul Methuen, the sum of 15,000l., provided by his own marriagesettlement to be raised and paid unto his younger children, should be paid to his daughters only, (except to his eldest daughter, Matilda, the wife of Lord Walsingham, to whom, upon her marriage, he had paid 7000l. in lieu of any share she might

have been entitled to in the 15,000l.), in equal shares and proportions, and in such manner, and with such benefit of survivorship and accruer, as the same was directed by the settlement to be paid to his younger child or children."

Another sum of 6000l. was bequeathed among his daughters in similar words.

By a deed poll, dated the 15th of June 1813, Thomas Anthony Methuen, the second son, in consideration of a sum of money paid to him, released to Paul Cobb Methuen, and his heirs, all his right and interest in the premises charged with the payment of his portion as a younger son.

In June 1815, a marriage being in contemplation between Lord Edward O'Brien and Gertrude Grace, another of the daughters, her father agreed to give her 10,000l. as her portion. In performance of this arrangement, she, by a deed poll, dated the 1st of March 1815, released to him and his heirs all her right, title and interest, in the hereditaments charged with her portion as one of his younger children. The marriage between her and Lord Edward O'Brien took place shortly afterwards; and the 10,000l. was paid.

On the 1st of April 1815, and prior to the solemnization of the marriage, Paul Cobb Methuen made a codicil to his will, so executed and attested as to be in pursuance of his power; and by that codicil, (after mentioning the intended marriage, and reciting, that in contemplation of it he had paid 10,000l. to Gertrude Grace, or to her benefit, as a marriage portion), the testator," in consideration of such provision so made for his said daughter, Gertrude Grace, did thereby revoke and annul such direction and appointment so by him before made, as in or by his said will or otherwise, with respect to the several sums of 15,000l. and 6000l., so far only as respected his daughter, Gertrude Grace, and her share or proportion of the same respectively, but not further, or otherwise with respect to his said daughters, except Matilda de Grey."

Paul Cobb Methuen died in 1816, leaving, besides the two married daughters, other two who were unmarried. His eldest son, Paul Methuen, who was also his residuary legatee, took out administration with the will annexed. The two unmarried

daughters, Catherine Matilda, and Cecilia Penelope, afterwards married. In 1818, after the marriage of Catherine with Mr. Plumptre, a deed was executed, to which the brother, Paul Methuen, was a party, and in which the moiety of the 15,000l. was treated as being the ascertained property of Catherine, and of her husband in her right. Subsequently, however, various doubts arose with respect to the rights in that sum of money acquired by the several younger children of Paul Cobb Methuen under the deeds, wills, and codicils which had dealt with it. To ascertain these rights, the bill was filed by Cecilia Penelope, and revived by her and her husband, Mr. Noel, against the proper parties.

The prayer of it was, that the trustees of the term might be ordered to raise the sum of 15,000l. by sale or mortgage, and that the plaintiffs might be decreed to be enti tled to the moiety of that sum, with interest, at 4 per cent. from the time of the decease of Paul Cobb Methuen.

The defendant, Paul Methuen, the brother, insisted by his answer, that in consequence of the release from Gertrude Grace (afterwards Lady Edward O'Brien), and the revocation by the codicil of the bequest to her contained in the will, Mrs. Plumptre and Mrs. Noel were entitled only to two-third parts of the 3000l. which had been appointed to Lady Walsingham, (the other third part belonging to Paul Cobb Methuen's personal estate,) and also to her equal third parts of the remaining 12,000l.*

Mr. Horne, was for the plaintiff:

Mr. Sugden and Mr. Spurrier, for Paul Methuen, the brother:

Sir Giffin Wilson, for an infant who was interested in the estates charged with the portions, and for whom it was contended, that the releases of Thomas Anthony Methuen and Lady Edward O'Brien, operated to extinguish their shares of the 15,000l.

The questions discussed in the argument were,

Whether any and what part of the 15,000l. was extinguished for the benefit of the estate?

*It was also insisted, that a sum of 2,4007. ought to be deducted from this 12,0004; but that point was not contended for in argument.

Whether Paul Cobb Methuen acquired by purchase any part of the 15,000l. ?

Whether the effect of his codicil upon his will was to revoke the bequest to Lady Edward O'Brien, and leave her third part undisposed of, or to give the whole of the 15,000l. to the two other daughters?

The principal cases cited were, Folkes v. Western, and Pitts v. Jackson. †

Vice Chancellor.-My opinion is, that these two ladies are entitled to have this sum of 15,000l. divided between them, and that a declaration to that effect must be made. This conclusion does not depend on a single point.

The first question made is, with regard to Lady Walsingham's portion-whether her father was to be considered as a purchaser of it. It is clear, from the instruments, that he was intended to be so ; and my opinion is, that he was a purchaser of that sum of 30001.

The next question regards the portion of Lady Edward O'Brien. Upon her mar-. riage her father gave her 10,000l.; and she executed an instrument, which was in form a release of her interest under her marriage-settlement. On the whole, my opinion is, that this transaction amounted to an assignment of her portion to him, and that he thereby acquired a right to the disposition of that sum of 3000l.

By his will made before Lady Edward O'Brien's marriage, Paul Cobb Methuen gave the 15,000l. equally amongst all his daughters, except Lady Walsingham. His intention then was, that Lady Edward should take her one-third part of that sum; for, exclusive of Lady Walsingham, there were three other daughters then living. Lady Edward O'Brien having married subsequently, having been advanced by him, and having assigned to him her share of the portion provided by his settlement, he alters the arrangement which he had made; and this he does by a codicil, on the construction of which, in reference to the bequests in the will, the most difficult question in the cause turns. For upon that codicil a doubt arises, whether he meant merely that Lady Edward O'Brien should not take the 5000l. given her by the

* 9 Vesey, 456. † 2 Bro. C. C. 56.

will, or that the other two daughters should take the whole 15,000l.:-whether, in fact, the codicil was merely a revocation of the bequest to Lady Edward O'Brien, or whether it was the testator's intention, that the whole of the 15,000l. should go to Mrs. Plumptre and Mrs. Noel? Upon comparing the words of the codicil with those of the will, and giving full effect to both, it appears to me, that it was not the intention of Paul Cobb Methuen to die intestate with respect to any part of the 15,000l., and that the true construction is, that the whole of that sum goes to Mrs. Plumptre and Mrs. Noel

With respect to the judgment of Sir William Grant in Folkes v. Western, which in the argument Counsel endeavoured to impeach so far as it related to the point of a father acquiring or not acquiring as a purchaser, a right to, or an interest in, the portions of younger children; upon that point I concur entirely with that judgment. I have entertained doubts with respect to another point in that judgment, viz. whether, as the power of appointment was given to the husband and wife, and the survivors of them, and the wife in that case survived the husband, the husband could, by any act of his, defeat the wife's power of appointment,and cause the only other younger child of the marriage (exclusive of the advanced daughter), to take the whole fund,

Specific performance.--Indemnity.-Costs.

Executors sell by auction, in nine lots, sundry houses, which the testator during his life, held by lease under the Crown, and of which they, after his death, obtained a new lease, subject to one entire rent of 2431.; the printed particulars mention that the sale is by executors, and that the nine lots are all held under one lease, and at one entire reserved rent: Decreed, upon a bill filed by the vendors, and an answer, submitting to perform the contract upon an indemnity being given, that the purchaser of one lot, with respect to which the particulars stated that the apportioned rent for it was 521., was entitled to have an indemnity from

the executors against his liability for the whole reserved rent, and the breach of any of the covenants in the original lease.

In such a case the defendant is entitled to have his costs, up to and including the hearing.

Sir Elijah Impey having been, at the time of his death, possessed of a lease from the crown, of sundry houses for a term of years, which would expire in the month of February 1815, his executors, Mr. West and Mr. Lichfield, applied to the crown to grant a new lease of the premises. Accordingly by an indenture dated the 24th of August 1810, and made between his late Majesty of the one part, and Mr. West and Mr. Lichfield (who were therein described as the executors of Sir E. Impey,) of the other part; his Majesty demised to West and Lichfield, their executors, administrators and assigns, the messuages therein described, to hold the same, from the 27th day of February 1815, when a former lease thereof would expire, for the term of 225 days and 52 years, at a yearly rent (during the 52 years), of 268. 13s. This lease contained the usual covenants on the part of the lessees; and upon breach of any of covenants, the crown might re-enter and determine the estate of the lessee.

West and Lichfield subsequently reassigned one of the houses to the crown; and the rent of 2681. 13s. was thereupon reduced to 243l. 13s.

In November 1821, the executors sold these leasehold premises by public auction, in nine lots. In the printed particulars the sale was stated to be by order of the executors of Sir Elijah Impey; and the nine lots were described as held under one lease from the crown, at a rent of 2431. 13s. per annum. Lot 4 was stated to consist of two houses; and the description of this lot in the particulars concluded with these words: "The apportioned rent for these houses per annum, 521.” One of the conditions of sale provided, that the purchasers, on payment of their purchase-money respectively, "should have leases of their respective lots, at their own expense, from the executors, with the like covenants and conditions contained in the original lease."

At the sale, James Wild was declared the purchaser of lot 4, at the price of 1255l., paid the deposit, and signed an agreement

for the payment of the remainder of the purchase-money.

Afterwards, when the draft of the lease from the executors to him was prepared, two difficulties arose. The purchaser objected in the first place, that what he had bought was to be subject only to an apportioned rent of 521.; and therefore, inasmuch as the crown might come upon the lessee of that part of the premises, for the entire reserved rent of 2431. 13s., that he was entitled to have an indemnity from the vendors against this liability. In the second place, he said that he would be liable to eviction, if any of the covenants in the original lease were broken, and therefore that he was entitled to have a covenant or an indemnity against the breach of these covenants by the original lessees. The executors refused to comply with either of these demands. They offered to enter into a covenant for the payment of the rent reserved by the crown; but more than that they would not give.

In the course of the correspondence on the subject, Mr. Wild offered to recede from his demand, if they would make an abatement in the price. "I must indulge a hope," said he, in a letter addressed to the executors, "that you will make me that liberal deduction from the amount, (i. e. of the purchase-money), that will satisfy me with a common covenant, and enable me to give a suitable indemnity to any person who may succeed me on the premises."

The bill was filed by Mr. West, the surviving executor of Sir Elijah Impey, for a specific performance of the contract.

The defendant, by his answer, stated, that he was, and always had been, ready and willing to perform the contract, on having a good and sufficient security from the plaintiff to indemnify him in case of his eviction from the premises, by reason of any breach of the covenants in the original lease, and in case also of his being obliged to pay more of the entire rent reserved to the crown, than the sum of 521.

Mr. Lovat, was for the plaintiff:
Mr. Horne, for the defendant.

The plaintiff contended, that he was not liable to be called upon for an indemnity, because all that he had done was in his character of executor. It was only as executor that he had any estate or interest in