said bill mentioned, or any of them, and what is become thereof, and whether or no, if such books, accounts, letters, memorandums, documents, papers or writings, or book, account, letter, memorandum, document, paper or writing, were or was produced, the several matters in the said bill mentioned, or any or either of them would appear, and whether or no in particular it would appear, that the said Thomas Cotchett had done any and what acts or act, by which, or that he had in any and what manner treated, considered, admitted or acknowledged, that the said sums, or any or either of them, were or was due and owing from him; and that these defendants might set forth a list or schedule of all the said books, accounts, letters, memorandums, documents, papers and writings, and might produce and leave the same in the hands of their clerk in court, for the usual purposes. These defendants do plead in bar, and for plea say, that by an act of parliament made and passed in the 21st year of the reign of King James the First, entitled 'An Act for Limitation of Actions for avoiding of Suits in Law, it was enacted,' &c. [here the clause of the act was set forth.] And these defendants for further plea say, that if the complainants, as executors of George Loseby deceased, or the said George Loseby in his lifetime, as executor of John Loseby deceased, or the said John Loseby in his lifetime ever had any cause of action or suit against these defendants, or against Thomas Cotchett deceased, of or concerning any of the matters in the aforesaid bill of complaint mentioned, which these defendants do in no sort admit, such cause of action or suit did accrue or arise above six years before the death of the said Thomas Cotchett, the father of this defendant, Thomas Cotchett; nor have the complainants since the death of the said George Loseby been, nor was the said George Loseby at any time after the death of the said John Loseby, nor was the said John Loseby at any time after the said cause of action accrued, under any of the disabilities mentioned or described in the said act of parliament. And these defendants for further plea say, that the said Thomas Cochett deceased, (the late father of this defendant, Thomas Cotchett,) did not, to the knowledge and belief of these defendants or either of them, at any time

within six years before his death, promise or agree to come to any account for, or to pay, or any way satisfy said complainants, or said George Loseby deceased, or said John Loseby deceased, any sum or sums of money for, or by reason of any matter, transaction or things, in the complainants' said bill of complaint, charged or alleged : all which matters and things these defendants do aver to be true, and are ready and willing to prove as this Court shall award, and they, these said defendants, do plead the same in bar to the whole of the said bill, except such parts as aforesaid." Then followed an answer to the parts so excepted.

Mr. Sugden and Mr. Simons appeared in support of the bill ;

Mr. Merivale, for the plea.

The plea, it was alleged, was bad, both in substance and in form. It was bad in substance, for there was an allegation in the bill, that Thomas Cotchett the father, had admitted the debt within six years before the filing of the bill. This allegation was not excepted from the plea, and yet was not met by any averment in the plea. Secondly, the bill charged that the executrix had, within six years, admitted the debt. That was not excepted from the plea, and yet was not met by any averment in the plea.

The form of the plea was also objected to. It was contended that the defendants ought to have specified the parts to which they pleaded, and that it was not sufficient to ascertain them by way of exception. The expression, "and these defendants for further plea say," was inaccurate, and, in fact, broke down what ought to be one plea into three pleas. The form ought to have been," and for plea these defendants further say."

On the other hand, it was argued, that the averment, that the testator had not admitted the debt within six years before his death, amounted à fortiori to an averment, that he had not admitted it within six years before the filing of the bill.

Vice Chancellor.-In the clause stating the exception from the pleas, the defendants submit to answer an allegation, that

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Thomas Cotchett, within six years before his decease, frequently admitted the debt. But that is not the allegation of the bill. the plaintiff charges is, that Thomas Cotchett frequently admitted the debt within six years before his decease, and also within six years before the filing of the bill.

Independently, however, of this omission, there is another ground on which the plea must be overruled. The bill charges admissions by the executrix, and these admissions are met neither by plea nor by answer. That charge not being included in the exception, it appears that it must be taken as among the parts of the bill which are pleaded to; and yet there is no averment in the plea that can meet it.

The plea was overruled.

Mr. Merivale applied for liberty to amend the plea.

The Court, however, refused leave to amend.

1825.

Nov. 9. S

MACGREGOR v. THE EAST INDIA
COMPANY.

Where a bill is filed for discovery in aid of an action, to which the Statute of Limitations has been pleaded, and plaintiff states in his bill that several pleas have been pleaded at law, of which the general issue is one; the defendant, in pleading the Statute of Limitations in bar to the discovery, must make it appear on his plea, that the Statute of Limitations has been pleaded at law.

The plaintiff, claiming as the executor of the father, a sum of money as due to him for expenses incurred in their service, while Sir John Macpherson was at the head of the government of India, had brought his action against the Company; and in support of that action he filed this bill for a discovery, against the Company, their Secretary, and one of the Directors.

To this bill, the Company pleaded the Statute of Limitations; and the Secretary and the Director, who was made a defendant, met it by a like defence.

The bill alleged, that the East India Company had pleaded several pleas to the action at law, the first of which was, the general issue but it did not state, that they

had also pleaded the Statute of Limitations, though in fact they had done so.

Mr. Roupell appeared in support of the bill;

The Solicitor General, Mr. Horne, and Mr. Beames for the plea.

Mr. Roupell argued, that the plea of the general issue let the plaintiff into the merits at law, and he was therefore entitled to the discovery which he sought.

On the other side it was said, that, as the defendant had pleaded the Statute of Limitations at law, the merits could not be gone into in the action, and therefore the discovery was altogether useless.

It was replied, that it did not appear on the record, that the Statute of Limitations had been pleaded, and even if the fact was so, the Court on the present argument could take no notice of it.

The Vice Chancellor.-If the bill had stated, that the Company had pleaded the Statute of Limitations, could the plaintiff have sustained his right to a discovery which could serve no good purpose? The only doubt is, whether the defendants in their plea ought not to have averred, that they had pleaded the Statute of Limitations at law. My opinion is, that they ought to have pleaded that fact. But as the discovery would be useless in reality, if that defence is set up at law, I shall permit them to amend their plea.

The pleas were ordered to stand over, with liberty for the defendant to amend them, upon paying to the plaintiff, in respect of each of the pleas, the same costs as if they had been overruled.

which the daughters have against their father's assets in respect of his receipt of their legacies. By the marriage settlement of A, a sum of 15,000l. was to be raised for the portions of the younger children, in such shares, and payable at such times, as A should appoint; and in default of appointment, among the children equally; the share of each son to be vested at twenty-one; and of each daughter, at twenty-one or marriage; with a proviso, that the share of any younger child, dying before the time prescribed for the vesting of his or her portion, should go over to the survivors: Afterwards A, by his will, bequeathed unto all and every his daughters who should be living at his death, or born in due time after wards, 40,000l., share and share alike; but if he should have only one daughter, then unto such only daughter, the sum of 20,000l. to be paid to them or her, at such time or times &c. as the provision made for them by this marriage settlement was payable: A died, leaving two daughters, one of whom died under age and unmarried.-Held, that the surviving daughter was entitled to the whole of the 40,000l., if the personalty was sufficient to raise it.

Quare-Whether the surviving daughter would be entitled to such part of 20,000l. (moiety of the 40,000l.) as it might be necessary to raise out of real estate?

A testator devised his freehold messuage, tenement, or dwelling-house, with the yard, stables, and appurtenances, in Cavendishsquare, together with the household furniture and effects therein, unto his widow for life; and after her decease, he devised the same messuage or tenement, and premises, with the appurtenances, unto his son, his heirs, and assigns:-Held, that by this bequest, the household furniture passed to the son.

By indentures of lease and release, dated in August 1795, and executed previous to the marriage of Sir William Langham and Miss Vane, a term of 500 years was created in the manor of Cottesbroke, and other hereditaments, upon trust, that the trustees or trustee of the term should, after the decease of Sir William Langham, by the ways and means therein mentioned, raise and levy the sum of 15,000l., for the portion or portions of such one or more of the children of the body of Sir William Langham, on the body of Miss Vane to be begotten, other

than and except an eldest or only son, for the time being entitled to an estate of inheritance in the premises thereby settled by virtue of the previous limitations in the indenture of release contained, in such shares and proportions, and to be paid at such time and times, and with such maintenance from the time of the decease of Sir William Langham, as he Sir William Langham, by any writing or writings under his hand and seal, or any writing or writings in the nature of a will, or any codicil or codicils, attested by two or more witnesses, should appoint, and for want of such appointment, then to pay the same sum, or so much thereof as should not be so appointed as aforesaid, to the only child, or equally between or amongst all the children, of Sir William Langham by Miss Vane, other than or except an eldest or only son for the time being entitled as aforesaid, share and share alike; the said portion or portions to belong to, and be an interest vested in such of the said children as should be a son or sons, at his or their age or respective ages of twentyone years, or in such of them as should be a daughter or daughters, at her or their age or respective ages of twenty-one years, or day or days of marriage, which should first happen: And it was by the said indenture of release provided and declared, that if any of the sons of the said intended marriage, who should be presumptively entitled to a part or portion of the said sum of 15,000l. should die, or become an eldest or only son entitled as aforesaid, before attaining the age of twenty-one years; or if any of the daughters of the said then intended marriage, should die under the age of twentyone years, and without having been married, then the portion or portions of such child or children so dying, should from time to time go and belong unto, and vest in the other or others of the said children, other than and except an eldest or only son entitled as aforesaid, in equal shares and proportions; if more than one, to be vested ́ and paid at such times, and in such manner as was thereinbefore directed, concerning his and their original portion or portions respectively. It was further provided, that the trustees should, after the death of Sir William Langham, raise all or any part of the interest of such child's presumptive portion, who should be under age, and ap

ply the same for his or her maintenance and education; but the portions were not to be raised till they became payable.

Lady Langham, formerly Miss Vane, died in 1807, leaving three children of the marriage her surviving, namely, one son, William Henry Langham, and two daughters, Henrietta and Charlotte.

In May 1810, Sir William Langham intermarried with Miss Irby. By indentures of lease and release, made and executed previous to, and in consideration of that then intended marriage, and dated respectively on the 17th and 18th of May 1810, Sir William Langham conveyed the manor of Winwick and other estates in Northamptonshire, to trustees and their heirs, to hold the same to them and their heirs, to the use, after the marriage of Sir William Langham during his life, and after his decease, to the use of them the trustees and their heirs, upon trust to sell the same, and with power to give receipts for the purchase money, which should be a full discharge to the purchasers. It was then declared, that the trustees, and the survivor of them, and the executors, administrators, and assigns of such survivor, should stand possessed of the monies to arise by such sale, upon trust, in the first place, to pay off a mortgage which affected some part of the premises: and next upon trust, that they the said trustees should set apart and retain the sum of 30,000l., upon and for such trusts, intents, and purposes, as were expressed and declared concerning the same, in and by an indenture of settlement, bearing even date with this indenture; and in case there should be any surplus of the trust monies after answering the purposes aforesaid, that they should stand possessed thereof, in trust for Sir William Langham, his executors, administrators, and assigns.

Another indenture, dated the 18th May 1810, declared the trusts of the 30,000l. These trusts were to invest the money in the funds or on real security, and out of the proceeds to pay Lady Langham 1,000l. a year; then (but without prejudice to her annuity) to pay 10,000l. upon certain trusts, for the benefit of the children of the marriage. Subject to these charges, the trusts of the 30,000l. were for Sir William Langham, his executors, administrators, and assigns.

VOL. IV. CHANC

Afterwards Sir William Langham made his will, which contained the following clauses among others :—

"I give, devise, and bequeath unto my son William Henry Langham, his heirs, executors, and administrators, all my manors, messuages, lands, tenements, hereditaments, and real estate, and also all my personal estate, including any jewels I may be possessed of at the time of my death, (except pearls, and also except lace,) whatsoever and wheresoever, subject nevertheless to the payment of all my just debts, legacies, annuities, and funeral expenses, and with the payment whereof I do hereby charge, and make chargeable, all my said real estate, in case my personal estate shall be insufficient for that purpose; but in case my said son William Henry Langham shall depart this life without issue male, or in case of failure of issue male of my body, I give and bequeath unto all and every my daughters, who shall be living at the time of my death, or born in due time afterwards, the sum of 40,000l. of lawful money of Great Britain, over and besides, and in addition to what they may become entitled to, under or by virtue of the marriage settlement made upon my marriage with their respective mothers, equally to be divided between or amongst them, share and share alike; but if I shall have only one daughter, then I give and bequeath unto such only daughter the sum of 20,000l.; and to be paid to them or her at such time or times, and with such interest as the provision made for them by my said marriage settlements, or such daughter or daughters' share thereof are or is made payable, and I do hereby charge and subject all and every my said manors, messuages, closes, lands, tenements, hereditaments, and real estate, to and with the payment of the said sum of 40,000l. or 20,000l., as the case may happen accordingly." He then devised his real estates to trustees upon trust, by sale or mortgage, to raise sums sufficient for the payment of his debts and legacies; and subject to that charge, and for want or on failure of issue male of his body as aforesaid, he limited them over to his brother, James Langham, for life, remainder to his brother's sons successively in tail male, remainder to his own right heirs. The testator then proceeded as follows: "And in case I shall leave no son,

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or leaving one, he shall afterwards die without leaving issue before his age of 21 years, then I give and bequeath all my plate, jewels, household goods and household furniture, pictures, deer, live and dead stock, in and about my said mansionhouse at Cottesbrook aforesaid, at the time of my death, and all other my personal estate, except pearls and lace, subject to the payment of my debts, legacies, and funeral expenses, unto my said brother, James Langham, for and during his life; and from and after his decease, unto such son of my said brother who shall first attain his age of 21 years; but in case there shall be no such son of my said brother who shall attain the age of 21 years, then I give and bequeath the same unto all my daughters, if I shall leave more than one, equally to be divided amongst them, share and share alike; and if I shall leave only one daughter, unto such one daughter."

A subsequent part of the will contained this clause" And I do hereby devise and bequeath all that my freehold messuage, tenement or dwelling-house, with the yard, stables, and appurtenances thereunto belonging, situate, lying and being in Cavendish-square, in the county of Middlesex, together with the household furniture and effects therein, (save and except my plate and jewels) unto my dear wife, Augusta Priscilla Langham, for and during her natural life; and from and after the decease of my said dear wife, I give, devise and bequeath the same messuage or tenement and premises, with the appurtenances hereinbefore mentioned, unto my son, William Henry Langham, his heirs and assigns, to and for his and their own absolute use and benefit."

Sir William Langham died in March 1812, leaving his widow and the three children of his first marriage surviving. There were no children of his second marriage.

In the following May, Sir William Henry Langham died, an infant, intestate, unmarried, without issue, leaving his sisters his co-heiresses.

Afterwards, Charlotte Langham died, an infant, and unmarried. Henrietta Langham, who had intermarried with Mr. Sanford, was her personal representative and sole next of kin; and was also the sole next of kin and heiress-at-law of her de

ceased brother, Sir William Henry Langham.

Sir James Langham was the personal representative, both of the father Sir William Langham, and of the son Sir Willian Henry Langham.

Henrietta and Charlotte had legacies of 2001. given to them by their grandmother. These legacies, it was admitted by Sir James Langham, Sir William Langham had himself received payment of; and along with or annexed to his will, there was found a memorandum-" My mother by her will gave each of my daughters 2001."

A suit being instituted for the execution of the trusts of the before-mentioned deeds, and of Sir William Langham's will, (1) several questions arose with respect to the devise of the real estates to the trustees, and the limitations to Sir James Langham and his children. These having been disposed of, a supplemental suit became necessary in consequence of intervening circumstances; and in that suit, the following points were to be determined:

1st-Whether Charlotte, one of the daughters, having died under 21 and unmarried, the surviving daughter, Henrietta, was entitled to have the whole of the 40,000l. raised and paid to her, or whether she was entitled only to a moiety of that sum:

2ndly-Whether as the sole next of kin of her deceased brother, she was entitled to the furniture in the house in Cavendishsquare:

3dly-Whether in her own right, and as personal representative of her sister, she was entitled to claim the two legacies of 2001. given to her and her sister by her grandmother, and received by Sir William Langham; or whether the benefits given to the two daughters by the father's will were to be deemed a satisfaction of the demand which they had against him, in respect of his receipt of these legacies.

Mr. Sugden and Mr. Daniel supported Mrs. Sanford's claims.

Mr. Preston and Mr. Swanston, appeared for defendants, who were in the same interest with the plaintiffs.

Mr. Shadwell and Mr. Knight appeared for Sir James Langham and his son.

(1) See 3 Barn. and Ald. 654.