at a price considerably below 60; that, concealing the fact of such investments having been made, he had all along paid to the Plaintiff and the other legatees interest only at the rate of 5 per cent. on their respective sums of £15,000; and that the stock bought by him ought to be considered as appropriated to the satisfaction of the several legacies. It prayed, besides the usual accounts of the testator's estate, that an account might be taken of the stock in which any part of the assets had been invested; that so much of the stock as had been purchased with £15,000 towards answering the legacy bequeathed to the Plaintiff for life, might be appropriated and set apart; and that Thomas Hunter might pay to her the difference between the interest which she had received, and the actual dividends on that amount of stock.

[101] Thomas Hunter admitted, in his answer, that he had received personal estate of the testator to the amount of from £35,000 to £45,000.

The Plaintiff had gone into very voluminous evidence to show how much of the personal estate of the testator had come into Thomas Hunter's hands, in order to contradict his answer on that point, by proving that he had received assets of John Hunter to an amount far exceeding £45,000. It being proposed to enter this evidence as read, an objection was taken by

Mr. Horne and Mr. Barber for the Defendant Thomas Hunter. It is contrary to the constitution of the Court, that, in this stage of the proceedings, evidence should be gone into, with a view-not to prove that the Defendant ought to account (for to that he submits),--but to charge him with various sums as items of the account. Such evidence is superfluous for the purpose of the decree; it can be of use only in going through the account and that account the Court cannot itself take in the first instance, but must send it for investigation to the Master.

Mr. Heald and Mr. Treslove for the Plaintiff. The amount of the personal estate being in issue, evidence may be read to contradict the answer on that point. Some of the witnesses are very old, and their testimony is likely to be lost to the Plaintiff, unless she is enabled to use their depositions hereafter by having them now entered as read. Besides, the Plaintiff is, or at least may claim to be, entitled to an inquiry concerning what balances were from time to time in the hands of the executor, and what were the then prices of stock; this evidence tends to show, that there were [102] balances in his hands, and ought therefore to be read, as laying the foundation for a special direction in the decree.

The Master of the Rolls [Lord Gifford]. The bill being for an account, and the Defendant having admitted that, up to a certain extent, he has received assets ; the Plaintiff tenders evidence to show that he has received more. To go into such evidence would be to take the account in part, which the Court cannot do; for the Master's office is the proper forum for taking the account. This evidence, therefore, cannot be entered.

Mr. Heald and Mr. Treslove then demanded special inquiries concerning the balances from time to time retained by Thomas Hunter, and the prices of stocks at the corresponding dates. Wherever, they said, a testator directs money to be invested in a particular manner, and an executor appears not to have complied with that direction, the Court will give, at the original hearing, an inquiry concerning that default, in order that it may ascertain whether he is chargeable, and to what extent. Brown v. Southouse (3 Bro. C. C. 107), Piety v. Stace (4 Ves. 620), Pocock v. Reddington (5 Ves. 796), Raphael v. Boehm (11 Ves. 94. Note: The principal cases of this class are collected and commented upon by Sir Thomas Plumer in Tebbs v. Carpenter, 1 Mad. 290). Here, John Hunter expressly ordered the several sums of £15,000 to be invested in the three per cents. Thomas Hunter by his answer says, that he has not made those investments, and that he had not assets sufficient to enable him to do so. There must, therefore, be an inquiry, to ascertain what the truth is upon that part of the case.

[103] Mr. Sugden and Mr. Knight for Defendants, in the same interest on this question with the Plaintiffs.

The only effect of such a direction as is now sought, will be, to cause the Master to set forth the accounts in a more precise and complete form then he would otherwise do, and so as to show the state of the Defendant's account from time to time, instead of leaving the parties to compare, each for himself, the different parts of the report, and of the schedules annexed to it, and, from the result of that comparison, to obtain

special relief at the hearing on further directions. Supposing that the Court now pronounces merely a simple decree to account, you may, at the hearing, on further directions, show, from an examination of the report, what the state of the account has been at any given time, and obtain a decree accordingly. Is it not better for all parties, that the same end should be reached in a more brief, a more simple, and a more accurate form?

Mr. Horne and Mr. Barber contra. Whenever such special inquiries have been granted, it has always been, either on further directions in consequence of a case appearing on the Master's report, or where a foundation for them was laid in the allegations of the bill, and the admissions of the answer. If this bill had charged the executor with retaining balances in his hands, and omitting to lay them out in the manner prescribed by the testator, and if the answer had admitted the allegations, the proposed inquiries might have been asked; but so far is the Plaintiff from stating such a case in the record, that she asserts, on the contrary, that the Defendant invested the assets in purchases of stock, which he concealed from the legatees.

[104] The Master of the Rolls [Lord Gifford]. The question here is, whether, under the circumstances of the case, the Court ought, in this stage of the suit, to direct a special inquiry with respect to the amount of balances from time to time in the hands of the Defendant Thomas Hunter, and with respect to the prices of stocks at the times when any such balances were in his hands. For this purpose it is important to look at the frame of the pleadings. The bill is filed by one of the legatees under John Hunter's will, against his executors and other parties, not only asking the usual accounts, but alleging that there has been a specific appropriation of certain stock, purchased when the 3 per cents. were under 60, in satisfaction of the legacy given to the Plaintiff, and praying an account of the stock so purchased, and that a sufficient portion of it may be set apart to answer her demands. The decree, which she now asks, is for the usual accounts, together with inquiries concerning the balances from time to time in Thomas Hunter's hands, and concerning the prices of stocks at those different dates. The executors, she says, were bound by the will to invest the legacies, within a reasonable time after the death of the testator, in the purchase of three per cent. annuities; it appears from the answer of the Defendant, Thomas Hunter, that he received assets to a large amount; if he did not lay out the balances of those assets from time to time in the purchase of stock, he was guilty of a breach of duty which would render him liable to be charged with interest on the balances, or with the differences between the then and the present prices of stock; therefore, there ought to be in the first instance an inquiry upon this point. Such a direction, it was added, had frequently been given in the decree at the original hearing; and reference was made to various cases, and par-[105]-ticularly to the cases of Raphael v. Boehm (11 Ves. 94), and Pocock v. Reddington (5 Ves. 796), as authorities for what was asked.

The general current of authorities (more especially those referred to in Tebbs v. Carpenter) shows, that it is only on further directions that such inquiries are usually granted; and whenever they have been given at an earlier stage of the cause, it has always been in consequence of a special case made by the Plaintiff, or of admissions in the answer, that the Defendant had kept balances in his hands, which he had neglected to employ im the manner which his duty prescribed. In Raphael v. Boehm, a testator gave express directions that his property should be remitted to England to be laid out in the funds for the benefit of his children; and he bequeathed to Boehm, whom he appointed his executor here, a sum of money as a compensation for his trouble. A bill being filed for an account, Boehm, by his answer, stated that he was a partner in a house of trade in England, which had, at different times, large sums of money belonging to the testator in their hands; that large sums were from time to time transferred by that house of trade to the Defendant as executor under the will; and that he had not invested any part of those sums in the public funds. Accordingly, the original decree directed an inquiry as to balances from time to time in Boehm's hands. In Pocock v. Reddington, the bill charged the executor expressly with mis-application of the fund and with a direct breach of trust, in using for his own benefit the property which it was his duty to have placed out at interest for the advantage of the infant cestuique trust and he by his answer admitted the case which the Plaintiffs had stated. These charges and admissions laid the C. XVIII.-2*

foundation [106] for the special inquiries which were directed by the decree pronounced at the original hearing.

Here no such case is made by the bill, or admitted by the answer. The case which the Plaintiff states is, not that Thomas Hunter improperly omitted to lay out the money in the funds, and, therefore, ought to be liable for the difference between the prices of the stocks at that time, and the present time, or that he has retained the money in his hands, and made an undue advantage by it, so that he should be charged with interest on the contrary, the case which she makes is, that he long since actually invested her legacy in the funds, but that he concealed the fact of his having done so, continuing to pay her interest on the money as if it had not been laid out, and that he ought to account for the difference between the amount of that interest, and the amount of the dividends on the stock. It is true the Defendant admits that he has received part of the testator's personal estate; but he does not admit that he has misapplied any part of it; there is, therefore, neither allegation nor admission, to entitle the Plaintiff to the inquiries she seeks.

It was said, that, upon comparing the different schedules to the report, even if no special inquiries were ordered, it would appear what balances were at different times in the Defendant's hands; and it was argued, that it would be much more convenient that the Master should, by stating the balances in the first instance, do in form that which he does in substance, though in such a mode as compels the parties to go through the process of a second reference. The answer to that is, that, in directing an inquiry concerning balances, we seem to assume that an executor has misconducted himself; that the Court does not presume [107] misconduct in an executor; and that, for that reason, it does not give such directions in the first instance.

Upon the whole, looking at the current of precedents, it does not appear to me, that any case is made by the bill, or that there are sufficient admissions in the answer, to induce me to direct an inquiry in this stage of the cause.

The costs of the evidence, which had not been entered as read, were reserved, along with the other costs.

WALKER . WOODWARD. Rolls. June 20, [1826].

[See Elmer v. Creasy, 1873, L. R. 9 Ch. 72.]

Upon a bill for an account, evidence entered into by the Defendant, to prove items of his discharge, cannot be entered as read. An allegation in the answer concerning a fact lying especially within the knowledge of the Plaintiffs, does not entitle the Defendant to an inquiry on that point. A Defendant having stated in his answer, that, by carrying on business on a farm, and with stock, belonging to the assets of an intestate, he had made profit, but that, as he had not kept any accounts, and had blended the transactions of the farm with his other concerns, he could not set forth the amount of the profits; it was ordered, that, in taking the account against him, annual rests should be made, and interest calculated at 5 per cent. upon those annual rests. (Note: This case is inserted here on account of its connexion, as to the doctrine concerning the reception of evidence, with Law v. Hunter.)

Joseph Walker died intestate in 1809, leaving a widow and four children, and property consisting principally of farming stock, and of a copyhold estate of about 200 acres, held on a lease for four lives. The widow took out administration to him, and continued in the possession of the copyhold lands, and of all his effects. In June 1812 she intermarried with Woodward, who, in the settlement executed by him on that occasion, covenanted that he would every year, during the con-[108]-tinuance of his occupation of the farm, pay over to the trustees the rents and profits of two thirds of the estate and stock. to be laid out for the benefit of the children. The trustees never accepted the trust, and this covenant was never performed; though Woodward remained in the enjoyment of the farm and stock from June 1812 to Michaelmas 1821.

The bill was filed by three of the children of the intestate against Woodward and his wife. It prayed that they might account for the property of the intestate of

which they had possessed themselves, and that they might be charged, either with two thirds of the profits which had been made by the occupation of the farm and the use of the stock, or with two thirds of an occupation rent, and with interest at 5 per cent. on two thirds of the money value of the stock.

Woodward, by his answer, admitted, that he had carried on the farming business from June 1812 to Michaelmas 1821, on the copyhold, and with effects belonging to the estate of the intestate, and that he had thereby made considerable profits; but he said, that he could not set forth an account of the profits so made, as he had not kept any books or accounts relating to the business, and had blended the transactions of the farm with his other concerns. By way of defence he alleged, that he had made various payments in respect of the intestate's estate, and for the maintenance and education of the children; and that, in October 1821, an agreement in writing had been entered into and signed by him and his wife and by three of the children, who were then adult, and had been subsequently acceded to by the younger child after he came of age, by which they accepted a certain sum in full of all their de-[109]-mands against him. Of this agreement two copies, he stated, were made and signed, one of which was given to the Defendant himself, but, as he believed, had been subsequently taken from his bureau by the Plaintiffs, or their mother. No evidence was given that the supposed agreement had been entered into; but a great many witnesses had been examined by Woodward, to prove particular payments alleged to have been made by him on account of the estate of Joseph Walker, or of the children.

Mr. Sugden and Mr. Russell, for the Plaintiffs, objected, that this evidence could not be read or entered as read; and they relied on the authority of Law v. Hunter, between which and the present case there was only this difference, that there the evidence was given by the Plaintiff, against a Defendant who admitted that he was accountable, and that here it was given by a Defendant, who insisted that he was not accountable, against Plaintiffs who called for an account. In addition, therefore, to the considerations which induced the Court to refuse, in Law v. Hunter, to admit such evidence in this stage of the cause, there was also the glaring inconsistency of evidence tendered to prove items of an account by a Defendant, who affirmed upon the record, that the Plaintiffs had in fact released him from all demands.

Mr. Treslove, for the Defendant, insisted, that it was the old and uniform practice of the Court, to permit a Defendant in a suit for an account to go into such evidence. If he were not at liberty to prove the items of his discharge till he went into the Master's office, he might lose the whole of his evidence by the death of his witnesses. [110] The Master of the Rolls [Lord Gifford]. I made diligent inquiry into the subject before I decided Law v. Hunter; and the result of my inquiry was, that I did not find any instance in which it had been held that such evidence as was tendered there, and is now tendered in the present case, could be received in this stage of the proceedings. Since the account cannot be taken at the hearing, of what use can it be to give evidence of the items of that account, when the Court cannot examine whether those items should or should not be allowed. The only question at the original hearing is, whether the Defendant is an accounting party. If the course contended for by the Defendant be according to the practice of the Court, it is not easy to say where the consequences will stop; for every suit for an account against a trustee or an executor will be loaded, from the very outset, with an immense mass of evidence relating to the particulars of an account, into the consideration of which the Judge cannot enter at the hearing.

The evidence was not allowed to be entered as read.

It was then contended, that Woodward was entitled to an inquiry, whether such an agreement as was alleged in his answer had been entered into: for though he had not been able to establish by evidence the fact of that agreement, yet, as it was a matter necessarily lying within the knowledge of the Plaintiffs, he might, by examining them in the Master's office, make it out completely.

The Master of the Rolls decided, that the bare allegation in the answer did not entitle the Defendant to [111] an inquiry. If circumstances compelled him to trust for evidence of the alleged fact to the discovery which he might obtain from the Plaintiffs, his proper course would have been to have filed a cross bill.

The Plaintiffs having elected to waive the account of profits, it was held, that they were entitled to charge the Defendant, Woodward, with an occupation rent of the farm, and with interest at 5 per cent, on the money value of the stock.

Then the only question was, whether, in taking that account, annual rests should be made, and interest calculated at 5 per cent. upon those annual rests.

The Master of the Rolls [Lord Gifford] was of opinion, that the admissions in Woodward's answer entitled the Plaintiffs to annual rests, and 5 per cent. interest upon those rests.

[112] EMERY v. HILL. Rolls. Feb. 14, 1826.

A testator directed his executors to invest a sum of money in 3 per cent. stock, and bequeathed the stock to the treasurer of a charitable corporation in Scotland, in order that the dividends might be applied to the purposes of the charity The Court ordered the stock to be transferred to the corporation.

The will of Peter Hugetan Van Vryhouven, bearing date on the 16th of September 1789, contained the following bequest :

"Also I give and bequeath to my executors in England £20,000 sterling in trust, to invest the same in the capital stock of 3 per cent. reduced annuities at the Bank of England, which said stock I do hereby give and bequeath to the treasurer for the time being of a society in Scotland for propagating Christian knowledge, to apply the interest or dividends thereof from time to time in equal portions, to and for the uses and purposes of the first and second patent. And I will and order, that no part of the said legacy be at any time laid out or employed for the purpose of building, or in repairs or ornaments, but that the same be wholly and solely applied for the charitable and pious uses and purposes of the said society."

The society in Scotland for propagating Christian knowledge was incorporated under that name by letters patent, first of Queen Anne, and afterwards of George the Second.

A suit having been instituted for the administration of the testator's assets, the Court, by the decree dated the 6th of March 1792, ordered," that the legacy should be paid and transferred by the executors for the use of the charity, and the treasurer of the charity was to declare the trusts thereof accordingly." In 1795 the accountantgeneral certified, that he had laid out the legacy of £20,000 in the purchase of £28,844, 15s. 4d. [113] Bank 3 per cent. annuities, which had been transferred to his account, and accepted by him in trust in the cause, to the account of the treasurer of the Society in Scotland for propagating Christian Knowledge. The dividends. of that stock had ever since been paid to the treasurer for the time being of the society.

The society and their treasurer now petitioned, that the £28,844, 15s. 4d. Bank 3 per cent. reduced annuities might be transferred to the society or their treasurer for the use of the charity.

Mr. Shadwell for the petition. Where money is bequeathed for charitable purposes, which are to be executed in England, the Court secures the fund, and causes the charity to be administered under its own direction. But where the charity is to be established out of England, the Court, not having any jurisdiction to administer the fund, pays the money to the persons whom the testator has selected as the instruments of his benevolence. This was done by Lord Hardwicke in The Provost, Baillies, &c., of Edinburgh v. Aubery (Amb. 236); and the same principle was followed by Lord Eldon in The Attorney General v. Lepine (2 Swanst. 181). In Minet v. Vulliamy,(1) in 1819, an order was made that the [114] funds, which were the subject of a charitable bequest, should be transferred to certain bankers, representing, under a power of attorney, the president, vice-president, [115] treasurer, and secretary of a charity in Switzerland. The last case on the subject was that of Martin v. Paxton, in which the Lord Chancellor, on the 24th of [116] February 1824, ordered a fund, bequeathed to a charity at Lyons, to be paid to two of the plaintiffs, as attornies of their co-plaintiff the mayor of Lyons, under a power of attorney, which authorized the two or one of them to receive the money. (Note: In this case, the administrator of the testator was a co-plaintiff. Paxton and Co., the Defendants, were the persons to whom the money had been remitted from India.)

Mr. Jacob on the same side with Mr. Shadwell.

The Master of the Rolls [Lord Gifford]. In the case of Martin v. Paxton, there was at first some uncertainty whether the mayor, &c., of Lyons were the proper persons to receive the money; but, when that doubt was removed, the Lord Chancellor