On the 8th of May, 1849, the late Rev. Christopher them. Indemnity of trustee, his power to give receipts Milnes executed a will, apparently intended to be the for purchase-money, appointing his wife Catherine heads of instruction for a more formal instrument, Milnes and Thomas Greetham executrix and executor which was never prepared. of his will." The will, as set out in the plaintiff's bill, was as follows: "Reverend Christopher Milnes, of Aisthorpe, in the county of Lincoln, makes his will and testament in the following manner: Bequeaths to his wife Catherine Milnes the sum of 30007. for her own use and benefit, which he charges upon and is to be payable out of his estate at Besthorpe Girton and South Scarle, in the county of Nottingham. Devises his estate at Besthorpe Girton and Scarle unto and to the use of Thomas Greetham, of Stainfield Hall, in the county of Lincoln, gentleman, his heirs, and assigns, upon trust, by mortgage or sale thereof, or of a competent part thereof, to raise the sum of 30007., and to pay the same to his said wife Catherine Milnes, for her own use and benefit, the receipt of the said Thomas Greetham to be a sufficient discharge for the purchase-money, and upon trust, subject to the payment of the said sum of 3000l., for the purposes aftermentioned. In case his personal estate shall be insufficient for the payment of his debts, he charges the same upon his estate at Besthorpe Girton and South Scarle. Declaration, that Thomas Greetham, his heirs, and assigns, shall pay the rents and profits of all his estates to his said wife Catherine Milnes during her life, and after her death shall hold all his estates upon the trusts, and for the ends, intents, and purposes after-mentioned. As to his farm at Besthorpe Girton and South Searle, upon trust. . . . to apply the rents and profits of the said farm for the support, maintenance, education and advancement of the children of his brother John Lansdale Milnes, in such proportions, manner, and form as the said Thomas Greetham shall think proper, and shall when the youngest of the said children shall have attained the age of twenty-one years, convey the same farm to all or any of the said children of his said brother, and in such proportions as the said Thomas Greetham shall by deed or will appoint, and in default of such appointment the said Thomas Greetham, his heirs or assigns shall convey the same farm, lands and hereditaments at Besthorpe Girton and South Scarle, unto and equally amongst all the said children of his said brother John Lansdale Milnes in equal shares and proportions, and to the heirs and assigns as tenants in common, and not as joint tenants. Power to be given to the said Thomas Greetham, with the consent of his said wife Catherine Milnes, and after her decease of own authority to sell all or any part of the said estates so devised to him, and to put the produce out at interest, and to pay the interest to the parties who would have been entitled to the rents if the estate had remained unsold, and the purchase-money to be divided amongst the same parties and in the same events as the estates would have been divisible between ... In 1850, the testator died. In 1852, a conditional surrender of the estates devised by the will was made by way of mortgage to the widow, in consideration of 30007. expressed to be paid by her for raising the charge under the will. The charge being in her favour, no money passed. The widow was never admitted tenant, and after her death the surrender was vacated. By a deed-poll dated the 17th of March, 1864 (both Catherine Milnes, the tenant for life, and John Lansdale Milnes, then living), Thomas Greetham, the plaintiff, exercised his power of appointment in favour of the children already born of John Lansdale Milnes, the youngest of them having previously attained the age of twenty-one. On the 18th of March, 1864, Catherine Milnes died. On the 3rd of May, 1864, the plaintiff put up the estates, devised by the will, for sale by auction in lots. Among the conditions of the sale were the fol lowing : "As the vendor is only a trustee, selling under a power of sale, he shall not be required to enter into any other covenant than that he has done no act to incumber, and the concurrence of the persons bene ficially interested shall not be required. The vendor has power to give receipts." The defendant became the purchaser of five lots, paid the deposit, and entered into possession; but subsequently refused to complete the purchase without the concurrence in the surrender or assurance of the children of John Lansdale Milnes, or other persons beneficially entitled under the testator's will. Joshua Williams, Q.C., and Simmonds, for the plaintiff. A charge of debts authorises an executor to sell at any length of time from death of his testator, Sabin v. Heape, 27 Beav. 557 (with Forbes v. Peacock, and Wrigley v. Syks, there cited). We must refer to the state of things at the death of the testator. The express power of sale in the will cannot be ex tinguished by subsequent payment of debts or legacies, or by exercise of the subsidiary power of appointment, Johnson v. Kennett, 3 Myl. & K. 631 ; Stroughill v. Anstey, 1 De G. M. & G. 635; Williams on Real Assets, 51, 84, et seq., and cases there considered. The time for distribution has not arisen. The trust for maintenance, &c., extends to all the children of John Lansdale Milnes. Mainwaring v. Beevor, 8 Hare, 44. As to time and mode of conversion, the trust is discretionary, Polly v. Seymour, 2 Y. & C. Ex. 708. Baggallay, Q.C., and A. G. Marten, for the defen- curring. There must be a decree for specific perdant. formance, with costs, the defendant being satisfied with the title in other respects. The charge of debts is not general, but contingent. The deficiency of the personal estate must be shown, Hobson v. Bell, 2 Beav. 17; Sugden on Powers, 851 (last ed.). 22 JUNE, 1865. } The trusts of the will are determined, and the Kindersley, V.-C. STEWART v. GREAT WESTplaintiff has exhausted his power. After the mortgage for raising the 30007., and the appointment to the children, nothing remains upon which the power of sale can be exercised, Doe d. Jones v. Hughes, 6 Exch. 223; The children took on the death of Catherine Milnes, when the class was ascertained, 2 Jarm. on Wills, 143; Ayton v. Ayton, 1 Con. 327; the last case is exceptional, and does not affect the general rule. The question of Law and construction is too nice for the Court to enforce specific performance, Sugden, V. & P. 387; Pyrke v. Waddington, 10 Hare, 1: It is not proper to enforce acceptance of the title when the evidence shows that the objection can easily be removed. THE MASTER OF THE ROLLS, without calling for a reply, said: He had no doubt that the plaintiff could give a good title. It had become the uniform practice of the Courts to hold that a general charge of debts upon land enabled the executor to sell and make a good title in Equity. The rule was of great convenience in facilitating sales and setting aside litigation. It would be dangerous to disturb it now. The condition implied in the preface to the charge "in case the personal estate shall be insufficient of no importance; it merely expressed the common rule which is always implied, namely, that the personal estate was to be first liable. He considered the lapse of time since the testator's death quite imma terial. was Here the executor was also devisee in trust with power of sale. He could not hold that the trusts of the will were determined, or the power of sale exhausted, in consequence of the appointment made by the plaintiff in favour of the children of J. L. Milnes. The will was peculiar in its form, and, in a certain sense, executory. He thought a conveyancer, with this will laid before him as instructions for a draft, would have inserted a power of sale exercisable, notwithstanding the appointment. However reasonable the requisition might appear, or however simple it might be for the beneficiaries to give their concurrence, he did not think that he could interfere to compel it, even if they were all present before him in Court,-and capable of con ERN RAILWAY COMPANY. Jurisdiction 17 & 18 Vict. c. 125, s. 85 Injunction Inequitable Plea to Action at Law. Defendants in an action at law set up a plea which the plaintiffs alleged ought not to be allowed, on the ground of equitable fraud :— Held, that notwithstanding the Common Law Procedure Act, 1854, the Court would restrain the defendants from relying on such plea. This suit came on to be heard on demurrer. The plaintiffs, husband and wife, on the 23rd of August, 1864, were travelling on the Great Western Railway, and, in consequence of a collision, received serious injuries. They were attended on the spot by a surgeon of the name of Woodward, and conveyed to their home. They were subsequently attended on behalf of the company by Woodward and two other doctors. Under pressure and by advice of the three doctors, more particularly Woodward, they, while still in a weak state, bodily and mentally, without having obtained legal or other advice, and being ignorant of their legal rights, were induced to accept the sum of 157. in compensation for the injuries they had received. They signed a receipt for the 157., which was not read over to them, nor did they know the contents. They were assured by the three doctors that their injuries were slight. The bill charged that Woodward and the other two doctors were agents of the company. On the 26th of February, 1865, an action was commenced against the company, to recover compen sation, which was laid in all at 1,7007. The company put in a second plea that the defendants had paid, and the plaintiffs accepted, 157., in full satisfaction and discharge of the causes of action. The bill prayed for a declaration, that the receipt ought only to stand for a satisfaction to the extent of 15., and that an injunction might be granted, to restrain the defendants from relying on their second plea. Glasse, Q.C., and G. L. Russell, for the defendants, said: The bill was not for discovery, nor for relief. It was, in fact, an attempt to make the Court do the work of a legal replication. The facts alleged on the bill amounted to legal fraud, and, apart from the Common Law Procedure Act, there was a form of replication which quite embraced the fraud alleged in | having taken away the jurisdiction of the Courts of the bill, Bullen & Leake's Pleadings, 501 (2nd ed.); 15 & 16 Vict. c. 76, Sched. B, form 51. Equity, the plaintiffs had a right to come to Equity and say this is the proper tribunal for trying equitable matters. The demurrer could not, then, be allowed on any Since the Common Law Procedure Act (1854), however, an equitable replication could be made at Law; | ground. and the plaintiffs, having elected their tribunal, had no right to come to that Court. Baily, Q.C., and Wickens, for the plaintiffs. This was not a case of legal fraud. The Common Law Procedure Act (1854) had not ousted the jurisdiction of the Court of Equity, which was the most fit tribunal for trying cases of equitable fraud. Glasse, Q. C., in reply. KINDERSLEY, V.-C., said: In the first place he felt no doubt as to the facts alleged in the bill being sufficient to induce the Court to say that the receipt ought not to stand in the way of the plaintiff's getting compensation on account of the injuries alleged. Then, supposing that relief could be given in this Court, it was to be considered whether the facts alleged could support what was called legal fraud. He did not intend to lay down what was included in legal and what in equitable fraud so as to meet all circumstances; but he was clearly of opinion that the facts there alleged were not such as would constitute that kind of fraud which Courts of Law could take up. The company was a peculiarly constituted body, the acts of fraud were alleged to have been done by subordinates; it would be necessary that the party to the action should personally have committed the fraud, not merely a representative corporation, which could be supposed to have no more cognisance of the details of the alleged fraud than a perfect stranger. Again, there were circumstances which Equity would consider to constitute fraud arising not only from the acts and intentions of the party committing the fraud, but from the position of the party imposed upon, such as his being inops consilii, or being in a state of bodily or mental weakness. Courts of Law would not take up that kind of fraud. Therefore the demurrer could not be allowed on the ground that the facts alleged in the bill would amount to legal fraud. There remained, then, to consider whether the bill ought to be dismissed, on the ground that the Common Law Procedure Act, 1854, enabled a Court of law to take cognisance of an equitable plea or replication of matters which in themselves constituted an equitable and not legal defence or reply. If a party were to set up the defence or replication at law, and fail, it would then be too late to apply to this Court. The defendants, however, argued that the plaintiffs, having chosen their tribunal, had no right to come into this Court to obtain relief; but it was the defendants themselves who had set up the defence at law which the plaintiffs alleged was inequitable, the Common Law Procedure Act not Kindersley, V.-C. 22 APRIL, 24 JUNE, 1865. Practice-Conduct of a Cause. Two suits were instituted to administer the same estate. The plaintiff in the first suit, was not a party to the second. A decree having been obtained in the second suit, the proceedings in the first suit were stayed. The conduct of the cause was given to the plaintiff in the first suit. A bill was filed by the daughter of a deceased person, the widow and son of the deceased being made defendants. A second bill was, shortly afterwards, filed by the widow, in which her son was made the only defendant. A decree was at once obtained in the second suit, and the proceedings in the first were, in consequence, stayed. Jessel, Q.C., applied to have the conduct of the cause given to the plaintiff in the first suit. Cottrell, for the plaintiff, and G. O. Edwards, for the defendant, opposed the application. 24 JUNE, 1865. KINDERSLEY, V.-C., said: He thought it would be right to give the conduct of the cause to the plaintiff in the first suit, and he would make it a general rule Such a rule would in similar cases to do the same. tend to prevent the objectionable practice of what was called racing. The costs would be costs in the cause. Kindersley, V.-C. 24, 26 JUNE, 1865. } REEVE v. WHITMORE (2). Evidence-Books of Account. of the accounting parties, may be used in evidence against In taking accounts, entries made in the books of one him. But entries in his favour may not be used by him in evidence unless directly and intimately connected with some entry which is used on the other side. This suit is reported 1 N. R. 352, 3 N. R. 15, on a question of what was included in a mortgage. A decree was made in the suit directing certain accounts. It now came on to be heard on a point of evidence connected with those accounts. The state of facts was as followsSimpson was owner of a certain brick-field, about which the present litigation arose. Green had been employed as his agent and manager, and as such made payments and received sums on his behalf; it was ascertained that there was due to Green a sum of money of about 2,2007. A mortgage of the brick-field, and stock of Simpson, in the nature of a bill of sale, to secure the sum then due, and such further advances as should be made, not exceeding in the whole 30007., was made to Green. Upon the face of the deed it appeared that it was simply to secure 30007. which was then owing. But there was a contemporaneous memorandum, which stated that 2,2007. only was then due, and that interest was not to run from that time on 30007., but only on 2,2007., and afterwards on what should be further advanced. The Court was of opinion that this was not as ecurity for a floating balance, but for a fixed sum, and further advances not exceeding in the whole 3000Z. Green having that security deposited it with his bankers, Martin & Co., by way of equitable security, but did not communicate the fact that he had done so to Simpson. Simpson had made some other charges on the brickfield-viz., a second mortgage to Hendrick, which had originally been the first mortgage, but had been postponed to Green, and a third mortgage to Reeve, the plaintiff. Knight v. Marquis of Waterford, 10 L. J. (N. s.) 60. Stevens, for Martin & Co.-The entries were made subsequent to the deposit with Martin & Co. There fore, those on the debit side were not necessarily against Green's interest; neither were those on the credit side necessarily in his own favour. If a part of an account were put in evidence, the whole must be, Talbot v. Rutlege (loc. cit.); Boardman v. Jackson, 2 Ball & B. 382; Darston v. Lord Oxford, 1 Eq. Ca. Abr. 10; Baly v. Hill, 1 Eq. Ca. Abr. 11; Carter v. Lord Colrain, Barn. C. R. 126; Collenridge v. Farquharson (loc. cit.); 2 Starkie on Evidence, Apen. 954, 955. The proper course would be to call Green himself to prove any item, Duckham v. Wallis, 5 Esp. 251. . W. Pearson, in reply. KINDERSLEY, V.-C., said: He would consider, first, what would have been the rights between Simpson and Green, if neither of them had assigned their Then both Simpson and Green were made bank- interests to third parties, and had both remained rupts. The present suit was instituted by the third mortgagee. In it a decree had been made to the intent that Martin & Co. were entitled for a security to the extent of what was due to Green, not at the time of the deposit being made to them, but at the date of his bankruptcy. And an account was ordered to be taken of what was due to Green at the time of his bankruptcy. And, if anything should be found due on that account, a further account of what was owing to Martin & Co., on their equitable mortgage. The question now raised was, whether entries in a book of Green, made subsequently to the deposit by him of the mortgage, were to be used in evidence in taking those accounts, and to what extent they were, if at all, to be used. W. Pearson, for Reeve, and Fry for Hendrick, to show that entries were good evidence against the person keeping the book and his assignees, cited, Shaw v. Broom, 4 Dow. & Ry. 730; solvent, and a suit had arisen between them. On one point he had no doubt that entries in Green's books would have been good evidence against him. On the other hand, would Green have been able successfully to urge, that if the books were used in evidence against him, they ought to be equally good evidence in his favour? Upon that point there seemed to be no direct authority. The authorities which had been referred to were a long time back; two of them were from reports of little repute, and all had special circumstances connected with them, though not relied on in the dicta of the Judges. It was true there was the general rule, that if a document was put in evidence, the whole of it must be put in. But was that rule to apply to such documents as the accounts of merchants? It appeared to him that it did not at all follow that it did. The rule so applied would work great injustice; for a man anticipating dispute, might so keep his accounts that the other party having recourse to his books, he might be able to rely on entries which were fictitious. He would put the case of two merchants, one at London, the other at Rio, having mutual dealings, receiving and paying on one another's accounts, where there was no communication and acquiescence in the accounts. It appeared to him that each party was chargeable with items entered on the debit side of his own books, for no one else could be cognisant of the details of the case. If, for instance, a consignment had been made to the merchant at Rio, he would be the only person who knew what he sold the consigned goods for. If he made an entry in his books which debited him with a sum of money on that account, there was a plain reason why he should be debited with that sum in taking the accounts between the two merchants. But with regard to entries on the other side of the account, the opposite was the case; it was his duty to keep the vouchers and proofs of what he had expended, and his own entries in his books were not a proof of what payments he had made; it would be wrong that the other party should have to prove that he did not make the payments; he was bound to prove them himself. Again, the common case of an administration suit was analogous, where the executor was bound to put in an account of receipts and payments, and was put | to proof of the payments he had made. That, then, was the way the matter would stand, if it were simply between Simpson and Green. The form of the decree, which was founded on the fact that Martin & Co. had given no notice of the deposit with them to Simpson, but had allowed the dealings to go on on the former footing, precluded their saying they could stand in any better position than Green could have stood. The plaintiff, therefore, would be allowed to use as evidence any entries in the books of Green, but Martin & Co. would not be allowed to do so primá facie, though there might be entries in the books so directly and intimately connected, that the mere reading of one item by the plaintiff would entitle Messrs. Martin & Co. to read another. Of course Hendrick was in the same position as the plaintiff with respect to the evidence. Infant-Trustee Extension Act, 1852-Infants' Act, 1 Will. 4, c. 65-Bank of England. An order discharged, on the objection of the Bank, as being unauthorised by the Trustee Act; and another order substituted, under the 1 Will. 4, c. 65, s. 32. It is the duty of the Bank of England to bring an erroneous order, upon which it is asked to act, under the notice of the Court. In this case a sum of stock stood in the name of an infant, who was absolutely entitled to it. In order to obtain payment of the dividends to his guardians, a petition was presented, under the Trustee Acts of 1850 and 1852, upon which Stuart, V.-C., made an order (reported ante, 6 N. R. 61), declaring the infant a trustee of the stock, and appointing a person to transfer it into Court. The Bank of England, however, hesitated to act upon the order, and accordingly, Speed now mentioned the matter again to the Court, and argued, that the indemnity clause, section 7 of the Trustee Extension Act, 1852, precluded the Bank from making any objection. Cotton, for the Bank. STUART, V.-C., said: The infant, being absolutely entitled to the stock, could not be a trustee within the meaning of the Act. He must, therefore, discharge the order; but should give leave to amend the petition, by entituling it in the matter of the Act of 1 Will. 4, c. 65, and by making the guardians of the infant copetitioners; and, subject to these amendments, he should make an order, under the 32nd section of that Act, directing payment of the dividends to the guardians. With reference to the indemnity clause, the Bank had acted properly in bringing the matter to his attention. If the Bank considered that the Court had, through inadvertence or otherwise, made an erroneous or defective order, it did right in requiring the point to be brought before the Court for reconsideration. Stuart, V.-C. MOORE v. BARBER 26 JUNE, 1865. Husband and Wife—Alimony—Wife's Savings. A husband held not entitled, after his wife's death, to claim from her executors money saved by her out of permanent alimony granted to her on her divorce from him à mensâ et thoro, and bequeathed by her will. This was a suit for the administration of the estate of Mrs. Wilson, and now came on for further consideration. In 1848, Mrs. Wilson obtained in the Court of Arches a divorce à mensa et thoro from her husband, and an allowance for permanent alimony of 350. a year. She had also separate property. By her will, she recited that she had saved out of her alimony, and, after bequeathing some legacies, made the plaintiff her residuary legatee, and the defendant her executor. Her husband gave the defendant notice that he claimed the savings out of alimony, and, being served with the decree, prosecuted his claim in Chambers: but the discussion of it was reserved to the hearing on further consideration. Bacon, Q.C., and Locock Webb, for the plaintiff, were stopped by the Court. Malins, Q.C., and W. R. Fisher, for the husband. Money allowed by a husband to his wife for par ticular purposes, whether voluntarily or under the order of a Court of Justice, is only hers for those purposes. Even the wife's separate estate, and all savings |