the premises sold; it was only as executor that he had sold them, nor had the defendant ever treated with him except as the executor of Sir Elijah Impey. An executor, thus disposing of property which came into his hands in his capacity of personal representative, could not be called upon to incur personal responsibility by giving an indemnity to the purchaser. Here the purchaser had no reason to complain; for he was fully apprised, before he entered into the contract, of the circumstances on which he now founds his objections. He was informed by the particulars of sale, that all the nine lots were held under one lease from the crown, at one reserved rent, for the whole of which, of course, the crown might distrain on any one lot; and, as he was aware that he was dealing with 'a vendor, who was merely an executor, and not entitled beneficially, he never could expect any indemnity. The objection was an after thought, of which he availed himself, in order to try to obtain a diminution of the price which he had bound himself to pay; and, for that reason, it was little entitled to the favourable attention of the court. Vice Chancellor.-Suppose this lease had devolved to Mr. West and Mr. Lichfield simply as executors, there might have been some weight in the observations which have been urged on behalf of the plaintiff; but even on that supposition, the case would not have been concluded; for I know not that any authority has hitherto established, that executors are not bound, when they come forward as vendors, to make as good a title as other vendors. That case, however, is not now before the court. For this lease did not devolve upon Mr. West and Mr. Lichfield as executors of Sir Elijah Impey; they are themselves the lessees under the Crown; and the mention made of them in the lease as executors of Sir Elijah Impey, is mere description. It is quite plain, that this defendant is a purchaser upon an agreement for an apportioned rent of 521, he is therefore to be protected from the payment of any thing beyond that yearly sum of 521.; consequently he is entitled to an indemnity against his liability for the whole of the original rent......! A double plea cannot be allowed in part, but may be ordered to stand as an answer. Semble, that a plea to so much of the accounts sought by the bill, as are the subject of certain deeds stated in the plea is bad, as not expressing sufficiently how much of the deed is intended to be covered by the plea. The Mary Anne Boode was entitled under the will of her father, to a considerable interest in his real and personal estate, which consisted among other things of a residuary share of the property of Johann Frederick Boode. That property was situated in Essequibo and Demerara. bill was filed by her, her husband, their infant child, and the trustees of their marriage settlement, against the executors of Johann Frederick Boode and the persons interested in his estate; and it prayed, that the accounts of the testator's estates, both real and personal, might be taken that the plaintiffs might be declared entitled to a certain proportion of the same; and that the executor might be decreed to pay what should be found due from him upon the account being taken. Certain directions were also prayed with respect to the estate of the testarix Anna Maria Boode, the wife of the testator. To this bill Andreas Christian Boode, the executor who had principally acted, put in a plea and answer; the substance of the plea was, that, with respect to certain of the accounts, settlements had been concluded during the minority of Mary Anne Boode, to which her guardians and all the other persons interested were parties; and that, according to the laws of Holland, a settlement by guardians bound the interests of the infant, so that she could not, upon D attaining her full age, call for the accounts again. The plea was in the following form : "As to so much of the said bill as prays that an account may be taken of the real estates of the testator Johann Frederick Boode, (including the plantation called Greenwich park,) and of all such parts thereof, as have been sold since his death prior and up to the 31st of December 1798, and by whom or under whose directions all such parts thereof as have been sold were sold, and by whom the purchase-money thereof hath been received; and as far as prays that a like account may be taken of the personal estate and effects of the testator Johann Frederick Boode, at the time of his death up to the time last aforesaid, and of the rents, issues and profits of his real and personal estates and effects up to the time last aforesaid, and of the accounts thereof, made or accrued since his death up to the time last aforesaid, and of all such parts of the produce of the sales of the real estates of the said testator, and of his personal estate and effects, and the produce thereof up to the time last aforesaid, as have been possessed or received by this defendant or by any person by his order, or for his use; and so far as prays that the said complainants may be declared entitled to a moiety of one-fifth part of the real estates of the said testator Johann Frede rick Boode, remaining unsold, and that this defendant may be decreed to pay and satisfy to the complainants, what shall be coming due to them from the estates of the said Johann Frederick Boode, including the said plantation called Greenwich park, in respect of his having possessed the rents and profits of the said real estates, from and up to the time aforesaid, and also the moiety of one fifth part of the rents and profits of the real estate of the said Johann Frederick Boode prior and up to the time last aforesaid; and so far as prays that an account may be taken of the rents, issues and profits of the said plantation called Greenwich park, and of the other real estates of the said testatrix that have accrued since the death of the said testator, Johann Frederick Baode, prior and up to the time last aforesaid, and of all such parts thereof as have been possessed or received by this defendant, prior and up to the time last afore said; and that he may be decreed to pay to appeared for the plea. Mr. Koe, contrà. Upon the counsel for the defendant proceeding to argue the substantial question raised by the plea, viz. whether an infant would be bound by instruments to which his guardians on his behalf were parties, the subject of these instruments being pra perty situated in a colony where the Dutch law prevailed, and the title to it being derived under the will of a testator who belonged to, and died in that colony. But his Honour desired them, before entering upon this argument, to direct their attention to the form of the plea; for it appeared to him difficult to say, from the mode of expression adopted in the plea, how much of the bill was intended to be covered by that species of defence. 105 This defendant, said the Vice Chancellor, pleads to the account of the real and and personal estate sought by the bill, only so far as that real or personal estate is the subject of four deeds which are set forth in the plea. Can the court enter into the question of how far, and in what degree any particular portion of the property is the subject of these instruments? And must not a defendant who pleads take upon himself at his own peril to define, to how much of the bill he does plead? The defendant does not by this plea say that the plaintiff has no title to discovery or relief as to the accounts of the property up to a certain date; he says, merely, that the plaintiff has no title to discovery or relief with respect to the accounts of a portion of the property up to a certain time, and that portion for which the defendant alleges that he is not to account, is described only as being that part which is the subject of certain deeds. The argument stood over, in order that the counsel for the defendant might ascertain, whether they could find any authority to support the form of their plea. Nov. 24.-Mr. Hart, Mr. Horne and Mr. Bligh, contended, that, inasmuch as the words of reference, limiting the extent of the plea, were to matter stated in the body of the plea, there was no objection in point of form; for the plea was in itself perfect and certain. In Salkeld v. Science Lord Hardwick held a plea of release, further and other than in the plea set forth, to be a good defence in point of form to a bill for an account, though in that particular case it was defective in sub * 2 Ves, sen. 107, See infra. stance. So in Howe v. Duppat a plea to the relief and discovery, except as to such estates as were purchased in the name of Richard Duppa and conveyed to the uses of his will, was held to be good. This plea, like those, contained an exception of certain matter, and the matter so excepted was ascertained by a reference to deeds which were set forth. The Vice Chancellor was inclined to be of the same opinion upon this point as at the first argument. But even if this objection were abandoned, he observed that the matters stated in the plea were such as to make it double; and on that ground it could not but be over-ruled. Mr. Hart suggested that so much of the plea as rendered the defence double might be over-ruled, and the remainder of it allowed. The Vice Chancellor conceived that such a course would be altogether irregular; for though a plea to the whole bill, which was bad as a defence to the whole, was sometimes allowed as to part of the bill, yet part of a plea could not be allowed. The court would not break down the plea into parts; if it was bad as a whole, no part of it could stand. Sarah his wife, praying an account of the personal estate of J. Smith against his executors. It stated that the defendants pretended, that the personal estate had been duly administered by them in concurrence with and under the direction of the plaintiff Sarah, when she was the wife of Ruffe, and that they further pretended that the surplus had been duly ascertained and placed out on securities, and that the plaintiff Sarah had executed such instruments as precluded her from calling for any account. These were a release executed by her and her former husband Ruffe, and another deed executed by her, after the death of Ruffe, while she was a widow. The bill charged that these deeds were obtained by fraud that they related only to the sums specified in them; and that, both before the execu• tion of them and since, the executors had received many other parts of the testator's personal property. There was also an allegation that one of the defendants, shortly after the death of the testator, obtained possession of the key of his private cabinet, and abstracted from it several securities. Science, one of the defendants, died, leaving Elizabeth Science his executrix. On the 21st of May 1750, a bill of revivor was filed, praying an account and discovery against Elizabeth Science. The On the 6th of August 1750, Elizabeth Science put in her plea and answer. plea was in the following form: "This defendent doth plead in bar to so much of the said bills as seek any account or discovery from this defendant, further and other than is in this her plea set forth, of the personal estates of the testator Smith, which came into the hands of the late defendant Science on or before the 11th of April 1744, and in what manner the same had been disposed of; and for plea this defendant saith that she is informed and believes, that J. Smith made his will dated the 28th of May 1737, whereby he appointed the complainant Sarah, and Thomas Science, and W. M. his executrix and executors, requesting Science and W. M. to assist his daughter in the payment of his debts; that the testator afterwards died; that his daughter Sarah and the other two executors proved the will and possessed themselves of much of his personal estate; and that on the 1st of This April 1742, the complainant Sarah and her then husband Peter Ruffe executed a deedpoll or release, now in the custody of the defendant and ready to be produced. release was then set forth. It mentioned a particular claim of the complainant Sarah and her husband-upon the testator's estate, and the mode in which the executors had provided for the satisfaction of that claim; it stated certain securities, upon which the produce of the testator's estate had been invested in the names of T. Science and W. M., and that the amount of it was nearly equal to the sum total of his debts and legacies. It recited further, that all the assets, come into the hands of Science, and W. M., had been applied, with the privity and consent of Peter Ruffe and Sarah his wife, to the payment of debts and legacies, or lent out upon the before-mentioned securities; that no part of the estate remained in their hands; and that the surplus of the estate and all interest thereon had been received by Peter Ruffe and his wife; and it then witnessed that Peter Ruffe and Sarah his wife, did thereby release and discharge the two executors T. Science and W. M. from all suits, demands, &c. in respect of the personal estate of J. Smith. The plea went on next to state, that the complainant Sarah, after the death of Robert Ruffe, and while she was a widow, executed another deed-poll or release indorsed upon the former. This release was also set forth. It was dated the 11th of April 1744. The purport of it was, that Thomas Science and W. M., were trustees for the purposes expressed in the former deed of the monies invested on securities in their names; that they had duly accounted for and applied all other the them from any claim in respect thereof. estate of the testator; and that she released The plea further averred, that the matters stated in these deeds were true. purported to be an answer to so much of It was followed by an answer, which the bill as was not pleaded to, and to be in support of the plea. From this statement of the case, it is clear that Salkeld v. Science turns upon a principle altogether different from that of the objection made to the plea in Cust v. Boode. In the latter case the objection was, that the part of the bill, which the plea purported to cover, was not marked out with the requisite precision. In the former, the extent of the plea was quite clear; for it was a plea to all the discovery and accounts sought relative to the testator's estate on or before the 11th of April 1744. The plea itself, however, did contain some discovery of executorship transations anterior to that date; and it was with reference to that discovery, that the exception was introduced into the form of the plea. The effect of that exception was merely this that the defendant by her plea said, that as to a certain part of the bill, the plaintiff had no right to any discovery beyond that which the plea itself afforded. A testator devises real estate to his wi dow for life, and after her death, to six younger children, with a direction, that if any of these children die under 21, his or her share is to go to the survivors. He then adds, that it is his desire, that, as soon as the youngest survivor shall attain his or her age of 21 years, the estate may be sold, and the produce divided amongst the survivors, unless they would rather mutually divide the estate amongst themselves: Held, by the Vice Chancellar, that the share of a daughter, who attained 21, and died intestate, in the lifetime of the widow, was not transmissible as part af her personal estate, but descended as really to her heir-at-law : and also, that the heir-at-law had the option of sale given by the will. Held, contrà, by the Lord Chancellor, that the share of that daughter was transmissible as part of her personal estate. Richard Sheppard, by his will, duly executed and attested, and dated 27th June 1781, devised as follows: "I give, devise and bequeath, all my freehold and copyhoid estates whatsoever, having first surrendered my copyhold estates to the use of my will, unto my dear and loving wife, Louisa Sheppard, for and during her natural life, she making no waste or spoil, but keeping the same in good repair; and my will and desire is, that my said wife shall maintain and provide for my children, not in any expensive or superfluous manner, but as her circumstances will admit; and from and after her decease, then I give, devise and bequeath, all those my freehold estates at Stoke Bruern, &c. unto my son, Richard Sheppard, and the heirs of his body lawfully begotten: Also, I give, devise and bequeath, all my other freehold and copyhold estates, unto and amongst my son John, daughters Ann, Susannah, Elizabeth, Louisa, Mary, Charlotte, and Playford, and the rents and profits thereof, I do desire my executors hereinafter named to apply towards the maintenance of my said children; and in case either of my said children should happen to die before they attain the age of 21 years, then I give, devise and bequeath, the share of him or her so dying unto and amongst the remainder; and it is my will and desire, that as soon as my daughter Playford, shall attain the age of 21 years, or the youngest survivor shall attain his or her age of 21 years, that the said estates may be sold, and the produce thereof be equally divided amongst the survivors, unless the survivors would rather mutually divide the same amongst themselves." The testator died in September 1780, leaving his widow him surviving, and also Richard, his eldest son, and six other children, Ann, Susannah, Elizabeth, Louisa, Mary, Charlotte, and John. Playford, the youngest child, died in the testator's lifetime. John, who was the youngest of the surviving children, died in 1902, having attained the age of 21 years. Louisa married Thomas Parish, and died in 1815, a widow and intestate, leaving seven children her surviving. Of these, Henry, the youngest son, was born in September 1808. Louisa Shepherd, the testator's widow, died in November 1821. According to the custom of the manor of which the copyholds were holden, the youngest son, and if there was no son, the youngest daughter succeeded, in case of intestacy, as heir to the copyhold estates |