1837.-Denys v. Locock.

cott Shuckburgh, had always intended, out of the benefits which she was to derive under the will and codicils of the said Lady C. Denys, to make some considerable provisions for the plaintiff and his family, or how otherwise." That is excepted. Now certainly, that is not the foundation of the equity, for the eqnity does not rest on Lady Shuckburgh having represented that she had intended, out of the benefit, which she might derive from her mother Lady C. Denys, to make a provision for the plaintiff; but, undoubtedly, it is a material allegation in the bill, as tending to show that the testatrix relied on some promise from the legatee in favor of the plaintiff; and therefore the pleader very properly excepts out of it those allegations. Then, however, the plea goes on thus:" And whether, before the execution of the codicil of the 14th day of April, 1835, in the said bill in that behalf mentioned, she, the said Lady Shuckburgh, expressly and in terms promised the said Lady C. Denys that, if she would, as she, the said Lady Shuckburgh, desired, execute the last mentioned codicil, she would apply the sum of 10,000l. stuck for the benefit of the said complainant and his children, according to the provisions of the paper writing of the 2d day of August, 1833, *in the said bill in that behalf [*233] mentioned, or to some and what other purport or effect; and whether the said Lady C. Denys did not believe such representations and promises of the said Lady Shuckburgh in the said bill alleged, or how otherwise; and whether the said Lady C. Denys did not execute the paper writing and the codicils in the said bill in that behalf mentioned, or some or one and which of them; and whether or not particularly the codicil in the said bill in that behalf mentioned, in reliance on the truth of such alleged representations, and on the faith of the said alleged promise, or how otherwise." Now, that is the substance of the equity; that is the alleged promise on the faith of which it is alleged that the codicil was executed. The result, therefore, is, that the plea, having excepted the promise upon which the whole equity rests, goes on, after excepting certain other passages to plead the negative;"Do plead in bar and for plea, say they, deny that, before the execution of the codicil of the 14th of April, 1835, in the said bill in that behalf mentioned, or at any time, she, this defendant Dame Anna Maria Draycott Shuckburgh expressly or in terms, or in any manner promised, represented, or stated to Lady C. Denys in the said bill named, that if she would execute the said last mentioned codicil, she, this defendant Dame A. M. D. Shuckburgh, would apply the sum of 10,000l. stock in the said bill mentioned, or any part thereof, for the benefit of or hold the same, or any part thereof, upon trust for the said complainant and his children, or any or either of them, according to the provisions of the paper writing of the 2d day of August, 1833, in the said bill mentioned, or according to any other provisions, or in any other manner.

The plea negatives, therefore, the allegation of the promise. What I particularly observe upon is, that first it takes out of the bill the alle

*

gation of the promise, and then denies it. Now I apprehend that [*231] is not correct, and that no such plea can be supported. A negative

1837.-Denys v. Locock.

plea is a mere traverse; it differs from an ordinary plea; inasmuch as the ordinary plea admits the truth of the bill, but states some matter dehors, which destroys the effect of the allegation, and which, assuming the allegation to be true would be a defence. A title to an account or a title to a sum of money, perfectly good on the face of the bill, may be met by a plea, relating a release. It is quite consistent with the whole statement in the bill; it admits the statement to be true, but states that which, if established by evidence, will displace the title of the plaintiff. A negative plea, however, is a mere traverse of that which constitutes the plaintiff's title.[1] Now, to traverse that which is not alleged on the face of the bill,-to take out of the bill an allegation, and then by plea to negative the allegation,-is a mode of proceeding which leaves the record in a state which renders it impossible for the court afterwards to deal with it.

Several objections were taken to this plea. It was objected first, that the plea does that which I have now observed upon,-excepts the alleged promise, and then traverses the allegation. And it was also objected that the bill conained statements which are not excluded, and which tend to establish the truth of the case made by the bill. A great variety of decided cases were referred to in the course of the argument, and I can find not one of them in which a negative plea has been so framed, with the exception of Thring v. Edgar;(a) and it is very singular that, in that case, the plea seems, as far as one can judge. from the statement of the report, to have adopted the same course, and, being

a negative plea, to have excepted from the bill the allegation which [235] *it was intended to traverse; and it is very singular that, in that case,

Sir John Leach did not advert to, and probably was not aware of the fact, that that was the shape and frame of the plea; because he speaks of the answer overruling the plea. Now the answer cannot, strictly speaking, be said to overrule the plea, when the plea and answer are to distinct and several matters;[2] but if that learned judge had been aware that in the bill, as pleaded to, there was no such allegation as that which was traversed, the objection would have been equally valid, although not rested precisely on the same ground. Now, it is singular enough that that case was decided, without adverting to the fact that the plea took out of the bill the allegation intended to be traversed; and, perhaps, it is as singular that, in this case, the ViceChancellor, when he decided it, certainly was not aware that such was the frame of this plea. I not only have that from a note of his judgment with which I have been furnished, but I have very good reasons for knowing that,

(a) 2 Sim & Stu. 274.

[1] "It has been decided that a negative plea may be filed to a bill of discovery; but I appre hend that a plea in order to be good, whether it be affirmative or negative, must be either an allegation or a denial of some leading part, or of some matters which, taken collectively, make out some general fact." Shadwell, V. C. Roebrtson v. Lubbock, 4 Sim. 161.

[2] As to answer overruling the plea, see Kay v. Marshall, 1 Keen, 197, and note Am. Ed. ibid.

1837.-Denys v. Locock.

in point of fact, he was not aware that that was the shape of the plea; and if he had been aware of the shape of the plea, I have not the least doubt, instead of giving effect to the plea, he would have overruled it. Now he states, in the note which has been furnished to me of his judgment, that his opinion is, that the plea is perfectly good; and that it appears to his Honor that there is no one point whatever by means of which any relief can be had in equity, except by means of the point which consists of the averment of the fact of the promise, and therefore that the denial by the plea of that promise does effectually displace the plaintiff's equity; and that he was also of opinion, that the mode in which the plea is drawn is right, because the plea does not profess to be a plea to the whole bill, and so answer something which in terms it professes to cover, but that it is a plea to all the bill, save and except so much of the bill as in effect relates to the promise. Now, in point of fact, the bill to which the plea pleads *contains no allegation of pro- [*236] mise at all; and the only way of trying how that would operate is to suppose issue to be taken on the plea; how would it be to be tried? It would be an issue taken on the traverse only; on the negative of that which nobody has affirmed. This is an entire novelty, of which there is no instance, except the case of Thring v. Edgar to which I have referred, in which I think it is quite obvious that the judge was not aware that it existed. It is quite obvious that he was not aware that, strictly speaking, the plea and the answer were not to the same matter, and that therefore there could be no overruling of the answer by the plea; but it is equally clear that if he had been aware that the plea had taken out of the bill that which constituted the equity, namely, the matter traversed, he would not have considered the plea as good.

Independently, however, of this objection, after looking through this long bill with every possible attention, I am quite satisfied that this plea does not take out of the bill one twentieth part of that which ought to be taken out, before the plea can be allowed; for every allegation, not taken out of the bill, is admitted; and the plaintiff has a right to state circumstances leading to the conclusion on which his equity is founded, and has a right to have a distinct answer to all those circumstances. That is not disputed; it is clearly laid down in Jones v. Davis, (a) Evans v. Harris, (b) and Hardman v. Ellmes.(c) The plea has attempted to do that which, in this case, seems to have been utterly impossible, and in very few cases is possible; namely, to a bill, so constituted as this is, to plead to part and answer to part; for unless it can be clearly shown that the allegations which are pleaded to do not tend to that conclusion which the *plaintiff seeks to establish, the defendant cannot sup- [*237] port a negative plea, by leaving unanswered and admitted allegations which go to establish the issue upon which the plaintiff's equity rests. It would be occupying a great deal more time that is at all necessary if I were to go through the various allegations which I have marked as coming, in my (a) 16 Vesey, 262.

(b) 2 V. & B. 361.

(c) 5 Sim. 640.

1837.-Denys v. Locock.

opinion, within that rule; but there are one or two which seem to me to put the fact so entirely beyond all doubt, that I will just advert to them. For instance, the bill says, " and, as further evidence of the matters aforesaid, your orator charges that both the said codicils of the 29th day of March, 1834, and the 14th day of April, 1835, were made at the suggestion of the said Lady Shuckburgh; and that the contents and effect thereof were suggested by her; and that she gave instructions or directions for the same to the said Henry Francis; and that he received his instructions or directions for the same from her." It is true that that does not go to the whole case; it does not prove the promise; but, if there is any doubt in the case, it is obvious that this is a very important matter, which may operate very much in favor of the plaintiff's claim. Then the bill charges, "that the truth of the matters aforesaid would further appear if the defendants hereto would state and set forth, as they are able and ought to do, with whom the idea or design of the said alleged codicil on the 14th day of April, 1835, originated; and whether the idea or design of the same did not in truth originate with the said Lady Shuckburgh." Then it goes on with a long passage, enumerating a variety of circumstances connected with the preparation of that codicil, for the purpose of showing that the whole scheme of that codicil was hers, and that it did not originate with the testatrix herself. Then there is a charge, "that the defendants respectively

have, at various times, written letters to, or had other written commu[*238] nications with, each other, and with various other persons; and

have, at various times, received letters or other written communications from each other, and from various other persons, touching, or concerning, or relating, to the matters aforesaid," the matters aforesaid being the contract, and all the circumstances connected with it—" or some of them, or which it would be advantageous for your orator to see, with reference to his claim in this suit." Now that is admitted, for it is not excluded. The defendants, therefore, admit that they are in possession of letters which would tend to establish the facts stated on behalf of the plaintiff. Then the bill goes on, in another passage, to allege, that the defendants are in possession of "certain drafts of such codicil, certain fair copies of such drafts, certain instructions for the said codicil of the 14th day of April, 1835, certain memoranda relating to the same." That they admit; and these documents they also, by the plea, endeavor to protect themselves from producing.

On these two grounds, either of which I conceive, is sufficient, I apprehend this plea is bad in point of form. I certainly have the satisfaction of knowing that, if the case had been presented to the Vice-Chancellor's mind in the way in which it has been brought before mine, it would have met with a very dif ferent result. I am clearly of opinion that the plea ought not to have been allowed; and that the order now made must be to overrule it and I am equally clear that, having regard to the frame of this bill, there is an utter impossibility of making any such plea an effectual defence, and, therefore, it is perfectly useless to give the defendant an opportunity of pleading again, so as

1837. In the Matter of the Oxford Charities.

to avoid those difficulties in which the case seems to be inextricably involved by the mode in which the bill is framed.[1]

*In the Matter of the OXFORD CHARITIES.

Plea overruled.

[*239]

1837; August 1, 2.

Property appropriated by a municipal corporation, to the maintenance of lecturers to preach before the corporation, is not property held by the corporation upon a charitable trust, within the meaning of the seventy.first section of the act 5 & 6 W. 4, c. 76.

UPON a petition presented under the act 5 & 6 W. 4, c. 76, (regulating municipal corporations,) for the appointment of new trustees of property lately held by the corporation of Oxford, or any members of it in their corporate character, upon any charitable trust, a question arose whether the four city lectureships came within the provisions of the seventy-first section of that act. (a)

(a) The seventy-first section is in the following words :

"And whereas divers bodies corporate now stand seised or possessed of sundry hereditaments and personal estate, in trust, in whole, or in part, for certain charitable trusts; and it is expedient that the administration thereof be kept distinct from that of the public stock and borough fund; be it enacted, that in every borough in which the body corporate, or any one or more of the members of such body corporate in his or their corporate capacity, now stands or stand solely, or together with any person or persons elected solely by such body corporate, or solely by any particu. lar number, class, or description of members of such body corporate, seised or possessed, for any estate or interest whatsoever, of any hereditaments, or any sums of money, chattels, securities for money, or any other personal estate whatsoever, in whole or in part, in trust or for the benefit of any charitable uses or trusts whatsoever, all the estate, right, interest, and title, and all the powers of such body corporate, or of such member or members of such body corporate in respect of the said uses and trusts, shall continue in the persons who, at the time of the passing of this act, are such trustees as aforesaid, notwithstanding that they may have ceased to hold any office, by virtue of which, before the passing of this act, they were such trustees, until the 1st day of August, 1836, or until parliament shall otherwise order, and shall immediately thereupon utterly cease and determine; provided always, that, if any vacancy shall be occasioned among the charitable trustees for any borough before the said 1st day of August, it shall be lawful for the lord high chancellor, or lords commissioners of the great seal for the time being, upon petition, in a summary way, to appoint another trustee to supply such vacancy; and every person so appointed a trustee as last aforesaid shall be a trustee until the time at which the person in the room of whom he was chosen would regularly have ceased to be a trustee, and he shall then cease to be a trustee; provided also, that if parliament shall not otherwise direct, on or before the said 1st day of Angust, 1836, the lord high chancellor or lords commissioners of the great seal shall make such orders as he or they shall see fit, for the administration, subject to such charitable uses or trusts as aforesaid, of such trust estates."

[1] In Dearman v. Wyche, 9 Sim. 570, Shadwell, V. C., on allowing the very elaborate plea in that case, observes, (page 582,) “I think that this plea has very properly denied, by answer, those matters and those matters only, which, had they not been so denied, would have avoided the plea. And I am only surprised, considering the various statements which have been introduced into the bill for that purpose, that the pleader has succeeded in answering only those passages of the bill, which, in my opinion he was alone bound to answer, leaving those which if answered, would have overruled his plea, to be met by the averinents of the plea."