1813. TASBURGH'S tioned, should be paid and applied; and they did at the same Time read the said Order to her, and explain to her the Purport and Effect thereof; and do certify, that the said Plaintiff Hannah Dockray did on such her Examination say and declare, she was willing and desirous, that the Sum of £191: 16s: 10d., being her Third Part of the said Sum, might and should be paid to the said Plaintiff Robert Dockray to and for his own Use and Benefit; and she did thereby freely and voluntarily consent, that the same be paid to him accordingly. Hannah Dockray by her Examination in Writing, and signed by her, states, that she being solely and secretly examined by the said Commissioners, separate and apart from her Husband, how and in what Manner and to what Uses she is willing and desirous, that her Third Part, &c. should be paid and applied, does say and declare, that she is willing and desirous, that the Sum of £191: 16s: 10d., &c. may and shall be paid to the said Robert Dockray, her Husband, to and for his own Use and Benefit; and she does truly, freely, and voluntarily, Consent, that the same may be paid to him accordingly. As to the Share of Mary Graves the Certificate and Examination were expressed in the same Terms; and the respective Signatures of the Parties and the Commissioners were verified by Affidavit. HOWE 1813, TH HOWE v. DUPPA. May 12. Reference to the Answer, allowed. To a Bill to HE Bill was filed by the Executor of Baldwin Plea with an Duppa, for the Purpose of setting aside an Agree- Exception, not ment, dated the 22d of October, 1791, and Conveyances requiring a in pursuance of it in 1792 and 1793, of all the Estate and Interest of Baldwin Duppa to the Defendant, his Son: alledging Fraud, Inadequacy of Consideration, Concealment of Value, &c.; stating the Title under the Will of set aside a ConBaldwin Duppa, the elder, devising to Richard Duppa veyance for for Life, with Remainder to his first and other Sons in Fraud, &c. Tail, and in Default of such Issue, to his Brother Baldwin Plea of Title Duppa for Life, and to his first and other Sons in Tail. paramount In 1789 Richard Duppa died without Issue. under a former Conveyance of all the Estate The Defendant by a Plea to the Relief and Discovery, and Interest, except as to such Estates as were purchased in the Name under which of Richard Duppa, and conveyed to the Uses of the Will, the Plaintiff set up a Purchase for valuable Consideration by Indentures, claimed, aldated the 2d of August, 1780, from Baldwin Duppa by lowed. Richard Duppa of all Baldwin's contingent and other Interest under the Will, subject to an Annuity of £400 in Trust for him. Sir Samuel Romilly, and Mr. Owen, for the Plea. Whatever may be alledged in respect of the Agreement of 1791, and the Deeds, made in pursuance of it, the Plaintiff can have no Relief, whilst the Purchase of 1780 is unimpeached; that Deed devesting all the Right and Interest of Baldwin Duppa. The subsequent Instruments are therefore merely voluntary on the Part of the Defendant. This is in Substance a Plea, that the Plaintiff has no 1813. HOWE 0. DUPPA. no Title; which, though a negative Plea, is unquestionably good (a). Mr. Richards, Mr. Hart, and Mr. Cooke, for the Plaintiff. This Plea is framed to meet a different Title from that stated by the Bill. Touching neither the Agreement of 1791, nor the subsequent Deeds, and compleatly overlooking the Subject of the Suit, the Plea relies on the Deed of 1780 alone. The Presumption is, that in the subsequent Period the Deed of 1780 was released; and the Defendant, dealing with Baldwin Duppa as Tenant for Life in Possession, is esstopped from saying, that he was dealing for nothing. That Transaction is utterly inconsistent with the Allegation that Baldwin Duppa had then no Interest to dispose of. The Execution of the Deed of 1780, whatever may be its Effect, cannot prevent the Equity to have the Deeds, impeached for Fraud rescinded, or removed, as Clouds upon the Title. Another Objection to this Plea is, that it is not clear. A Plea must unequivocally point to that, to which it applies, not by Exception. Thus a Plea to such Parts of the Bill as are not answered is bad (b). How can the Court know, what this Plea covers, without looking into the Answer; which must be resorted to for the Purpose of ascertaining the Extent of the Plea? That Objection was taken by Lord Hardwicke in Salkeld v. Science (c). The Plea is likewise bad, as not being a direct Denial of Plaintiff's Title. There is not a direct Averment, that (a) See Lord Redesd. Tr. Pl. p. 188, 189; and Cooper's Tr. Pl. p. 249; and the Authorities there cited. (b) See Lord Redesd. Tr. Pl. p. 233; and Coop. Tr. Pl. p. 229; and Authorities there cited. (c) 2 Ves. 107. Baldwin Baldwin Duppa did not on the Death of his Brother Sir Samuel Romilly, in Reply. This Plea is confined to the Estates, alledged to be the Property of the Testator at the Time of his Death; and contends, that the Plaintiff is not entitled to Relief: a Plea, of which one Species is, that the Plaintiff is not Heir at Law (a). Admitting these Deeds to be fraudulent, it sets up a Title paramount the Plaintiff's; alledging in Substance, that the Defendant was deceived by Baldwin Duppa in purchasing what did not belong to him, having previously sold these very Estates to Richard Duppa. The Dictum of Lord Hardwicke (b) is inapplicable to this Case; and means, not that a Plea with an Exception is bad, but a Plea with an Exception, generally, of what is not answered (c). If the Exception, as in this Instance, is clearly pointed, there is no Objection to it: otherwise a Plea, which covered every thing " Except Whiteacre" would be bad. Had this Plea proceeded to negative the Execution of any Deed intervening between 1780 and 1796, which, it is suggested, may be presumed, the Plea would have been open to Objection, as multifarious. The VICE-CHANCELLOR. Two Objections are made to this Plea: one of Form: the other of Substance. The Objection of Form is, that the Plea contains an Exception, which cannot be distinctly (a) See Cooper Tr. Pl. p. 249, 250; and Lord Redesd. Tr. Pl. 223, and Authorities cited. (b) Salkeld v. Science, 2 VOL. I. LI Ves. 107. 3 Atk: 70. Mosely, (c) Wetherhead v. Black burn, post. understood 1813. HOWE 20. DUPPAL Plea, with Exception of Matters after mentioned, bad. understood without having reference to the Answer; whence the Court must collect the Meaning and Extent of that Exception; and in support of that Exception the Passage in Vesey was referred to; where Lord Hardwicke states, that all Pleas in this Court, containing Exception of Matters hereinafter mentioned, are bad; as it is impossible for the Court to judge, what the Plea covers without looking into the Auswer; which may be sufficient, or not; and the Court must judge of the Sufficiency of the Answer, before they can judge of the Validity of the Plea. In that Passage I understand Lord Hardwicke to be speaking of the Phraseology of the Plea; which, if defective on the Face of it, containing a Reference to some other Part of the Record, is not perfect, substantial, or intelligible, in itself: and the Court cannot form a Judg ment upon it without referring to some other Part of the Record. That Objection does not apply to this Plea; which only excludes all that Property, that might have been procured by laying out Part of the personal Estate in the Purchase of Land subsequently to the Deed of 1780; in which Case that Deed would not cover that Property. In this respect the Plea requires no Reference to any other Part of the Record to make it intelligible. It is perfectly intelligible of itself; covering all the Property, that passed by the Deed of 1780, but not covering Property acquired after that Date. The Exception therefore does not make this Plea invalid and unintelligible on the Face of it; requiring a Reference to any thing else to make good that, which upon the Face of it is defective. With regard to the Substance of this Plea, Baldwin Duppa, having under the Will only a contingent Interest, depending on the Death of Richard Duppa without Children, came to an Agreement, in consideration of a Debt, contracted by Money advanced for the Education of his Children |