Architectural Dictionary, and also the whole of the plates, letter-press impressions, and other things thereto belonging, and all the right, title, and interest of him the plaintiff therein respectively, to hold the said copyright, plates, letter-press impressions and other things thereto belonging, with all benefit, profit, and advantage thereof to this defendant, his executors, administrators, and assigns, &c. And the plaintiff for himself, his executors and administrators, did thereby covenant, promise, agree to and with this defendant, his executors, administrators and assigns, that he the plaintiff, his executors or administrators, should not write or publish, or cause or procure to be written or published, any abridgment of the said work, or any part thereof, or any other kind of publication which might prove prejudicial or detrimental to the sale of the said work, then published as aforesaid, nor would in any manner directly or indirectly impede the circulation or publication thereof," &c. After setting forth the remainder of the indenture, the plaintiff proceeded in his plea to make various averments, such as— that the work called the Architectural Dictionary, and the plates, letter-press impressions, and other things thereto belonging, mentioned in the indenture of assignment, were the same work, plates, letter-press impressions, and other things thereto belonging, as were mentioned and referred to in the plaintiff's bill;—that the plaintiff's affairs did not become embarrassed towards the latter end of the year 1821, but had been embarrassed for several years previous to that time; that the defendant never formed a design to avail himself of the plaintiff's distresses, or to procure to himself the whole copyright of the Architectural Dictionary ; -that the defendant never represented to the plaintiff that the dictionary was a losing concern, with other averments negativing nearly all the circumstances of fraud, in respect of which the fairness of the transaction of 1821 was impeached, and alleging specifically that the plaintiff did not consider and believe that the indenture of assignment was a mere assignment of his copyright in the Architectural Dictionary; that the draft of the assignment was seen by the plaintiff, before he executed it; that after it was engrossed, it was read over to him, and that he was fully

aware of the covenants which it contained: "All which matters and things," continued the plea, "this defendant is ready to verify, and doth plead the same in bar of so much and such parts of the said bill as are hereinbefore mentioned to be pleaded untb.” The defendant then went on to answer almost every part of the bill, and annexed to the answer a schedule containing the accounts of his disbursements and receipts in respect of the Architectural Dictionary, up to the 3d of March 1821.

The plea having come on to be argued

Mr. Heald, Mr. Sugden, and Mr. Roots appeared in support of the plea; Mr. Horne and Mr. Wakefield were in support of the bill.

The plea, it was argued for the plaintiff, must be bad, because it did not do that which was the only object of a plea—it did not reduce the matter to a single point. Here a vast number of circumstances and facts were insisted upon in the plea, upon every one of which a distinct issue might be taken. It was, in truth, an answer clothed in the form and the phraseology of a plea; and was supported by another answer, which repeated all that was contained in the former. Again, from the schedule it appeared that, on the 3d of March 1821, Barfield had received from the sale of the Architectural Dictionary upwards of 4,700l. Deducting then the 4000l. which by the first agreement he was entitled to repay himself, there remained a sum of 7007., the half of which he was bound to have paid over to Nicholson. Thus, according to the defendant's own showing, the plaintiff was entitled to relief; for by the second agreement, the plaintiff parted with all his rights under the first agreement for a sum of 250l.; and yet one of the things to which he had a right under that first agreement, was an immediate payment of 3501.

Again, the bill has a double aspect. First it states that the assignment of March 1821, was obtained from the plaintiff under such circumstances, that in a court of equity it must be declared altogether void, and must not be allowed to have any operation, even as a conveyance of the copyright. Secondly, if the Court should be of opinion that the execution of the instrument was not

obtained by fraud, and that the deed cannot be overturned in toto, but is a good assignment of the copyright, still the plaintiff says that he is entitled to be relieved against a particular covenant contained in the deed. Now this plea is not a good defence to either of these cases. It is not good as a defence against the equity on which the plaintiff insists that the whole deed is fraudulent, because it contains a great number of unconnected averments. Neither is it a good defence against that other equity, in respect of which the plaintiff claims relief against the covenant, because it does not so much as affect to meet that part of the case. The plea treats the bill merely as impeaching the deed generally and it altogether overlooks the distinct case made against the covenant.

On the other hand it was argued for the defendant, that the answer gave all the discovery that was sought with respect to the alleged fraud, and with respect to the accounts previous to the 3d of March 1821. That discovery was properly given, for the plaintiff had a right to it, even if he failed completely in impeaching the deed or any covenant in it. Then to every other part of the relief, and of the discovery, the defendant pleaded the deed itself, negativing by averment and by answer, the fraud and circumstances of fraud by which the legal effect of the deed was sought to be avoided.

Vice Chancellor.-There is a total misapprehension in the frame of this plea. There are two distinct cases made by the billThe first is, that the whole deed is void; the second, that if the whole deed is not void, at least a particular covenant contained in it is void. Now the defendant attempts to meet these two cases by one plea. How is that possible?-Two distinct cases cannot be met by one plea. There should have been two pleas, one to the deed, and the other to the covenant.

There are also great objections to the form of this plea in other respects. I am unwilling to interrupt discussion or argument upon a point of pleading; for as there is such subtilty in pleading, I am always anxious it should be fully entered into. I was, however, of opinion, in an early part of this discussion, that it was impossible to maintain the plea, and that opinion proceeded upon

the principle which Mr. Horne has stated, namely, that every matter, alleged in the bill as an impeachment of that deed, is twice stated by the defendant:-first it is averred in the plea, and then it is denied in the answer: that cannot be. It is utterly inconsistent with the object and the principles of pleading; for instead of tending to shorten, it doubles the length of the pleading. There ought to have been in the plea a general averment that the deed was not obtained by fraud or imposition, using such words as to meet the case made by the bill. And then in the answer there ought to have been an express answer to every particular matter and circumstance of fraud charged in the bill. The plea therefore would have been vicious in that respect, even if it had not been otherwise bad.

I am further of opinion, that this bill is not well conceived, and that the frame of it is not such as would have entitled the plaintiff to draw that sort of answer from the defendant, which is material to his own case. On a late occasion, I stated that no plaintiff is entitled to an answer from a defendant, as to matters which he means should be considered as evidence of fraud, unless he in his bill distinctly charge them as evidence of fraud; otherwise it is impossible that a defendant can know exactly the form in which to pen his answer. So that the first duty of a plaintiff, if he desires an answer to matter considered as evidence of fraud, is, specifically to charge that matter as evidence of fraud in his bill; otherwise he is not entitled to an answer. In that respect this bill is defective.

1825. Nov. 3.

Plea overruled.

BENTINCK V. THE DUKE OF
PORTLAND.

A testator bequeaths certain capital sums to trustees, upon trust, to pay the interest to W. B. for his life, and after his decease, upon trust, to pay, transfer, and assign the capital sums, and all arrears of interest, to the children, if more than one, of the body of the said W. B., lawfully to be begotten, share and share alike; and in case of one only child, to pay, transfer and assign the same to such one child, the share and shares of

such of the said children, if more than one, as shall be a son or sons, at his and their age, or respective ages, of twenty-one years; and to such of them as shall be a daughter or daughters, at her or their age, or respective ages, of twenty-one years, or day or respective days of marriage, which shall first happen next after the decease of the said W. B.:-Held, that the children of W. B. did not take vested interests, till the time, when they were entitled respectively to payment, arrived.

John Bentinck, by his last will and testament, dated on the 26th day of October 1776, made a bequest in the following words :-" I have lately caused to be sold and transferred the capital sum of 6,400., part of my stock in Consolidated three per cent. Bank Annuities of England, which sum of 6,4001. stock produced 50,000 guilders current money of Holland, and which 50,000 guilders I soon afterwards advanced and lent to Renina Bentinck, on the security of her bond executed to me for the repayment of the 50,000 guilders, at such time, and with such interest, as in the bond is mentioned. Now I do hereby direct my executors, as soon as the 50,000 guilders shall be repaid, to invest and lay out the principal money to be produced thereby in the purchase of stock in the said Consolidated three per cent. Bank Annuities: which said stock so to be purchased, together with the capital sum of 3,6001. more of my stock in the said Consolidated three per cent. Annuities, I do hereby give and bequeath to Henry Cavendish, Duke of Portland, to hold the same two capital sums to him, the said Duke of Portland, his executors and administrators, in trust nevertheless to pay the yearly interest, dividends and proceeds of the same, to the said Renina Bentinck and her assigns, for and during the term of her natural life; and from and immediately after her decease, in trust, to pay the same yearly interest, dividends and proceeds of the said two capital sums, to W. Bentinck and his assigns, for and during the term of his natural life; and from and after his decease, in trust, to pay, transfer and assign the two several capital sums, and all arrears of interest, dividends and proceeds thereof, to the children, if more than one, of the body of the said William

Bentinck lawfully to be begotten, share and share alike; and in case of one only child, to pay, transfer and assign the same to such one child, the share and shares of such of the said children, if more than one, as shall be a son or sons, at his and their age, or respective ages, of twenty-one years; and to such of them as shall be a daughter or daughters, at her or their age, or respective ages, of twenty-one years, or day or respective days of marriage, which shall first happen next after the decease of the said William Bentinck :" and by his will, the testator appointed Margaret Bentinck the sole executrix thereof.

Renina Bentinck died in June 1792. William Bentinck married in 1802, and had eight children. Of these four died in his lifetime under age, unmarried, and intestate. William Bentinck died in 1813, leaving his four remaining children him surviving.

The plaintiff was the only one of these children who had attained his age of twenty-one years. Upon coming of age he had received one-eighth part of the trust fund set apart by the said testator's bequest, and the accumulations thereof which had taken place since the death of William Bentinck; but the payment was made without prejudice to any further claim which he might have upon the fund.

He now filed his bill, stating, that the personal representative of his four deceased brothers insisted that the children of William Bentinck took vested interests in the trust fund at their respective births, and that the payment only of such children's shares was postponed until the attainment of twenty-one years of age, or, as to daughters, until marriage; and that he, therefore, as their personal representative, was entitled to four-eighths of the fund. The plaintiff, on the contrary, asserted, that the trust monies vested in such children only of William Bentinck as attained the age of twenty-one years, or, being daughters, married under that age; and therefore, that he, upon attaining his full age, became entitled, as one of four children, to one-fourth part of the fund, and had, at the same time, a contingent interest in the shares of the three infants. By his bill he prayed a declaration to that effect, and immediate payment of another eighth

part of the money, in addition to the eighth part already received by him.

The defendants raised the question by putting in a general demurrer.

Mr. Horne and Mr. Tinney appeared in support of the bill;

Mr. Stuart was for the demurrer.

On behalf of the plaintiff's claim it was argued, that where there is, first, a gift of a legacy, and then a direction to pay it at a particular time, the vesting of the legacy is not suspended; but that, wherever there is no gift, except the direction to pay it at a particular time, the legacy does not vest till that time arrives. In Leake v. Robinson, (1) the testator gave certain funds to trustees, upon trust, to pay the same, upon a contingency which happened, to and among all and every the brothers and sisters of a person who was named, share and share alike, upon their attainment of twenty-five, or marriage, respectively. There it was held, by Sir William Grant, that nothing

vested in the brothers and sisters till the time of payment, because the only gift was the direction to pay at twenty-five. The bequest here was similar in expression, and was therefore to be guided by the same rules of construction.

In support of the claim of the representative of the deceased children it was argued, that the gift was a bequest to trustees, upon trust, to pay the fund to the children of William Bentinck in equal shares, followed by a clause providing for the event of there being only one child; and lastly, by a direction that the shares should be paid to them at a given time. Consequently, as there was first a gift, and then a direction as to the time of payment, the legacies would vest before time of payment. The case of Skey v. Barnes (2) was cited as ruling the present case.

Vice Chancellor.-Upon reading this will, I entertained no doubt with respect to the true construction of it, till the case of Skey v. Barnes was cited. Upon examining that case, however, I am of opinion that it does not apply to the present, and that this be

(1) 2 Merivale, 363. (2) 3 Merivale, 335.

quest falls within the rule, that where there is no gift except the direction for payment, a legacy does not vest till the time of payment arrives.

Here the testator gives certain capital sums to trustees, upon trust, to pay the interest to William Bentinck for his life, and after his decease, upon trust, to transfer and pay the capital, and arrears of insaid William Bentinck, share and share terest, to the children of the body of the alike. Now, here there is no gift to the children, except by a direction to the trustees to pay, assign and transfer unto them the trust monies. If this direction had been general, and without any direction to pay at a given time, the case would have come within a different rule; but if the direction be to pay to children at a particular period, the rule is, that, if they die before the period stated, their interest in the legacy is gone. Now, though the direction is at first a direction to pay proceeds the share and shares of such generally, yet it immediately afterwards

of the said children as shall be a son or sons, at his and their age, or respective ages, of twenty-one years; and to such of them as shall be a daughter or daughters, at her or their age, or respective ages, of twenty-one years, or day or respective days of marriage, which shall first happen." What does that mean, except that the trustees are to transfer and pay the fund in question in equal shares to the children: to the sons on their attaining twenty-one, and to the daughters on their attaining that age, or day of marriage? Now, there is no gift to the children, except a direction to the trustees to pay and transfer the funds to them; and that transfer or payment is to take place, with respect to the sons, upon their attaining the age of twenty-one. Till that time, therefore, the sons had no vested interest in the legacy.

In Skey v. Barnes, the testator gave his personal estate to trustees, upon trust, to pay the interest to his daughter for her life, and, after her decease, to pay and divide the principal among her children, and the children of another person, in such proportions as she by her will should appoint, and, in default of such appointment, the same to go to, and be equally divided between them, share and share alike. That was an abso

lute gift, subject only to the power of appointment delegated to his daughter. Then there followed the words" the portion or portions, share or shares of such of them, &c. to be paid at his or their respective ages of twenty-one," &c. So that, upon the whole, there was an absolute gift, accompanied afterwards with a direction for postponement of payment. There is, therefore, a plain distinction between Skey v. Barnes, and the case now before the Court. Demurrer overruled.

mance.

A demises a house to B for a term of years at a certain rent; and the lease contains a proviso that B shall, at any time during the term, be enabled, upon giving a certain notice, to purchase the house at a price to be fixed by two surveyors to be named,

the one by A, and the other by B, his executors, administrators, or assigns; A sells his reversion to C, who buys it with notice of the proviso, and the lessee gives notice to C, that he is ready to purchase according to the proviso, and names a surveyor; C. however, refuses to sell, or to name a surveyor on his part:-Held, that B cannot maintain a bill against C for the specific performance of the agreement in the proviso.

The Court will not interfere in cases of specific performance, unless it can give complete, and not merely a partial, relief.

The bill was filed by Sir Emanuel Felix Agar, Henry Traill, Daniel Raymond Barker, and Andrew Macklew, against Edward Macklew.

By an indenture of lease, dated the 10th of May 1785, William Pulteney demised to Joseph Parsloe certain premises in St. James's-street, for the term of fifty-seven years from Lady-day 1789, at the yearly rent of 1901. By various mesne assignments this lease became, in the year 1811, vested, for the unexpired residue of the term, in John Fallowfield Scott, Richard Carpenter, William Noble, William Bulmer, and William Harvey. These gentlemen, by an indenture of lease, bearing date on

the 27th of May 1811, demised the premises to the plaintiffs and Digby Hamilton, (since deceased) for the term of twenty-one years, to be computed from the 25th of March then last past, at the yearly rent of 600l., subject to certain covenants. This indenture contained the following proviso:

"Provided always, and it is further agreed by and between the said parties to these presents, that, if the said Emanuel Felix Agar, Digby Hamilton, Henry Traill, Daniel Raymond Barker, and Andrew Macklew, their executors, administrators, and assigns, shall be desirous of determining this present lease, and of such their mind and desire shall give six calendar months' notice in writing to the said John Fallowfield Scott, Richard Carpenter, William Noble, William Bulmer, and William and every thing therein contained, as and Harvey, then, and in such case, this lease, from the quarter-day on which such notice will expire, or, in case the said notice shall not expire on a quarter-day, expiration of such notice, shall cease, dethen on the quarter-day next after the termine, and be utterly void, to all intents and purposes, in like manner as if the whole term of twenty-one years had run out and expired, any thing in these presents contained to the contrary thereof in anywise notwithstanding; or if the said Emanuel Felix Agar, Digby Hamilton, Henry Traill, Macklew, their executors, administrators or Daniel Raymond Barker, and Andrew term hereby granted, be desirous of purassigns shall, at any time during the said chasing all the estate and interest then to come and unexpired of the said John Fallowfield Scott, Richard Carpenter, William Noble, William Bulmer, and William Harvey, their executors, administrators and assigns, of and in the said hereby demised messuage or tenement, and shall give notice of such their desire to the said John Fallowfield Scott, Richard Carpenter, William Noble, William Bulmer, and William Harvey, their executors, administrators or assigns, they shall be at liberty to purchase the same for such price or sum of money as shall be fixed upon and ascertained by two persons, indifferently to be chosen, as surveyors or appraisers; the one of such surveyors or appraisers to be chosen by the said John Fallowfield Scott, Richard Car