This was an action in assumpsit by the indorsees against the acceptor of a bill of exchange for £74 11s., drawn by Messrs. Hamilton and Ruskell. The declaration contained a count upon the bill of exchange and the indebitatus counts. The defendant pleaded as to the indebitatus counts the general issue, and as to the first count, the following plea "That heretofore, to wit, &c., he, the said defendant, delivered to the said certain persons using the name, style, and firm of Hamilton and Ruskell, a bill of exchange stamp of the amount of 4s. 6d., accepted in writing and in blank by the said defendant, and it was then and there agreed by and between the said defendant and the said Hamilton and Ruskell, that they should draw on the said stamp their bill of exchange, and thereby require the said defendant to pay to their order the sum of £65 1s. 2d. three months after the date thereof, to wit, the 19th of December, 1846; and the said defendant says, that the said Hamilton and Ruskell, without the knowledge or assent of the said defendant, then and there drew on the said stamp their bill of exchange, and thereby required the said defendant to pay to their order £74 11s., three months after the date thereof, to wit, &c., and afterwards, to wit, then and there indorsed the same to the said plaintiffs, who then and there had due notice of the aforesaid matter in this plea set forth, and this the said defendant is ready to verify," &c. Replication-"That the said plaintiff's, by reason, &c., because they say that the said defendant of his own wrong, and without the cause by him in his said second plea alleged, broke his said promise in the said first count of the declaration mentioned in manner and form," &c. Demurrer to the replication, assigning as special cause, "that the defendant's said second plea is in discharge of said plaintiff's cause of action, and that it denies the said plaintiff's said cause of action, and that it is not by way of confession and avoidance." R. Johnson, with whom was Brooke, Q.C.) now (17th January) moved that the demurrer should be set aside as frivolous, or that it should be set down for immediate argument. not binding, and so amount to a denial that there was a binding contract, they admit a contract in fact and excuse its performance, Lansdale v. Clarke (1 Ex. Rep. 78). (Ball, J.—If you can establish that the defendant's putting his name upon a blank stamp is a contract in fact for whatever sum is afterwards inserted, notwithstanding an express agreement for a particular amount, you overthrow this demurrer.) It is impossible to con tend that this is not a contract in fact, as to the whole world; and a contract in law, as to all persons not having notice of the fraud, Isaac v. Farrier (1 Mees. & W. 65); Rowland v. Evans (4 Jur. 460; 2 Arch. N. P. 40); Shultz v. Astley (2 Bing. N. C. 544); Watson v. Wilks (5 Ad. & El. 237); Emanuel v. Rendal (8 Dowl. P. C. 238); Reynolds v. Blackburn (2 Nev. & P. 136); Tolhurst v. Notley (17 Law. I. 97); Noel v. Rich (4 Dow. P. C. 228). (5 Tyr. 632, S. C.) is exactly in point. If this were not an acceptance in fact he ought to have pleaded non assumpsit, Grant v. Enthoven (1 Ex. Rep. 382). -- Codd, in reply. We admit that this plea is open to special demurrer, as amounting to the general issue. But the plaintiffs have not taken that course; they have put a bad replication upon the record, and this demurrer must therefore be allowed, Whittaker v. Mason (2 Bing. N. C. 359). JACKSON, J.-Noel v. Rich is not the same as this case. PER CURIAM.-This demurrer must be allowed. It is said that Fisher v. Wood has been overruled, but that does not appear to be so. We decide this case on the authority of Fisher V. Wood. Demurrer allowed with costs. Codd applied for the costs of the former motion. Johnston, contra.-Before the court makes such an order, it will hear the affidavit of the Messrs. Hamilton and Ruskell as to the falsehood of the plea. DOHERTY, C. J.-This is a branch of the case much too important to be disposed of lightly. Let the defendant apply for these costs on Wednesday next. Jan. 24.-Codd for the defendant, in pursuance of the leave given, applied this day for the costs of Codd, contra.-It is certified that this demurrer the motion to have the demurrer set down for immeis tenable. DOHERTY, C. J.-Where counsel appears at the bar in support of his demurrer, we cannot set it aside as frivolous. We shall hear it argued on Saturday. Jan. 20. The case having been now called on, Cuffe (with whom was Codd) in support of the demurrer. It is clearly laid down in all the books that the replication de injuria is applicable only where the plea confesses the cause of action and avoids it, Crogate's case (8 Rep. 66, b. 2; Saunders, 295); Edwards v. Greenwood (5 Bing. N. C. 476). Fisher v. Wood (1 Dowl. N. 54) is an express authority in favour of this demurrer. Here the plea is in denial of the contract stated in the declaration, and not in excuse. Johnson, R. (with Brooke, Q.C.), contra.Fisher v. Wood is overruled by Cowper v. Garbett (13 Mees. & W. 33). Pollock, C. B., there says, Though these circumstances render the contract diate argument. Johnston, contra. We have the affidavit of one of the firm of Hamilton and Ruskell, the drawers of the bill, stating the matters contained in the plea to be false, and that the figures £74 11s., written in the margin of the bill, are in the handwriting of the defendant himself, Horner v. Keppel (10 Ad. & El. 17); Haworth v. White (1 Arnold, 278). The answering affidavit of the attorney for the defendant does not even allege that he had any authority from his client for putting such a plea upon the record. DOHERTY, C. J.-This case was a very proper one to be set down for immediate decision. The replication is one fairly putting in issue matters alleged in the plea, and now admitted to be false. We refuse to give the defendant any costs, and we regret that we cannot give them against him. COURT OF CHANCERY. DUNDAS U. BLAKE.-Oct. 26, 27, 1848, Jan. 16, 1849. Statute of Limitations-Effect of a general charge in a will for payment of debts. Held that where a testator devises lands, subject to the payment of his just debts, directly to the devisee, and without the intervention of trustees, that there was no trust created, so as to save a debt from the operation of the statute. The bill in this case was filed to raise a sum of £1,000 and a sum of £400 claimed to be charged upon certain lands called Crumlin and Cloncum. The case relied on was as follows: That by indenture of mortgage, bearing date the 25th day of May, 1796, and made between Stephen Blake of the one part, and Joseph Callinan of the other part, the said Stephen Blake, in consideration of the sum of £1,000, conveyed to the said Joseph the said lands of Crumlin and Cloncum, together with certain other lands, not the subject matter of the suit, by way of mortgage, to secure payment of the said sum of £1,000. That the said Stephen Blake and Robert Blake, his brother, jointly executed their bond and warrant for confessing judgment thereon, in the penal sum of £2,000, with interest thereon. That the said indenture of mortgage was duly registered on the 18th day of June, 1796. That in Trinity Term, 1796, separate judgments were obtained against the said Stephen and Robert Blake, and that the judgment obtained against Robert was redocketed in Michaelmas Term, 1833. That the said Stephen Blake died some time in the year 1813, unmarried and intestate, leaving his brother Robert his heir-at-law, him surviving, who, immediately after the death of Stephen, entered into possession of all his real property, inclusive of Crumlin and Cloncum, and continued in possession thereof to the time of his death. That Joseph Callinan died on the 8th day of February, 1812, having first duly made his will, dated the 6th day of September, 1807, and, after certain specific bequests, devised the residue of his property to his son John, and appointed his brother, John Callinan, and Francis Farrell executors thereof, by whom same was duly proved. That John Callinan attained his full age some time in the year 1817, and became entitled to the moneys secured by said indenture of mortgage. That Robert Blake was liable to pay said debt, not only as joint obligor in the said bond, but because, as heir-at-law of Stephen, he applied to his own use the rents and profits of Stephen's real estate, from the time of his death in 1813, till the year 1819, when the said Robert died. That on the 26th day of November, 1817, the said Robert Blake wrote to C. J. Moore, the solicitor for the said John Callinan, the following letter: closing, and that the value might be left to two gentlemen of understanding. This I am ready to do at any time. I am, Sir, your obedient servant, ROBERT BLAKE." That the purchase or sale proposed by said letter never took effect, and the mortgage debt remaining unpaid on the 2nd day of June, 1818, John Callinan, the devisee, and Francis Farrell, the surviving executor of the will of Joseph Callinan, filed their bill of foreclosure against the said Robert Blake, who, having neglected to appear and answer, process to a sergeant-at-arms was entered against him; and, by order of the 16th of December, 1818, it was referred to one of the Masters to appoint a receiver. That process to a sequestration was carried on against the said Robert Blake, and said cause was about to be heard when the said Robert Blake died, about the 6th day of February, 1819, whereby said suit became abated. That the said Robert Blake made his will, duly executed for passing real estates, and after reciting that he was seized of the lands of Crumlin, he specifically devised same, and the will proceeded in the words following:-"I give, devise, and bequeath my said estates of Cloncum and Grange, with all rights, &c., unto my sister-in-law, Mrs. Jane Blake, for and during the term of her natural life, subject to all my just debts, legacies, and funeral expenses, and after her death, to such of her children, in such proportion as she, by any deed or will by her duly executed, shall limit, direct, or appoint, and for want of such appoint. ment, I order that the issues and profits arising therefrom may be divided, share and share alike, among all her children, male and female, save only Mrs. Mills, who has been already provided for; and whereas George M'Entaggart holds my security for £300, for which I never received any value, I think it but right to declare that it was my intention to resist the payment thereof, and consequently I do not conceive it to be a demand that comes under the term of my just debts." And, after certain specific bequests, the testator bequeathed all his personal property, of every nature and kind whatsoever, unto his sister-in-law, the said Mrs. Jane Blake, the better to enable her to pay all his debts, legacies, and funeral expenses; and he appointed the said Mrs. Jane Blake, the Rev. Robt. Marsh, and Paul Dolphin executors of his will. That the said Robert Blake died without having altered or revoked his will, which was, on the 8th of February, 1820, proved by Mrs. Jane Blake alone, the other executors having renounced probate. That the said Jane Blake and her second son, Stephen, having notice of said mortgage debt, by indenture dated the 28th day of October, 1819, appointed to the said Stephen the said lands of Cloncum and Grange, after her death; and by the said indenture, Stephen covenanted to indemnify her from all charges affecting said lands, and particularly from said mortgage debt, and that said deed was not registered till July, 1842. "Sir, I am this day favoured with your letter of yesterday's date. I wrote to Mr. John Callinan on the 2nd instant, that I had about 220 acres of good land out of lease, which I would agree to That in the year 1819, Stephen Blake intersell him to discharge his mortgage, and take his married with Jane Creighton, and by indenture of security for the balance; and that the business marriage settlement, dated the 4th day of Decemmight be settled without the expense of fore-ber, 1819, the said lands of Cloncum, amongst others, were, subject to the debts scheduled in said deed, and to the life interest of the said Jane Blake, and to a jointure for the said Jane Creighton, conveyed to the use of the said Stephen for life, remainder to the children as Stephen should appoint, and in default, to the children equally. ment of 1808, and a sale. The bill was taken pro confesso against the defendant, Jane Blake, and on her death was revived against her executor. The bill was resisted by the heir-at-law, on the ground that his father, on the death of Robert, took possession of the said lands, adverse to all the world, the entry was proved in the cause; and he also relied on the Statute of Limitations. He relied, further, that Robert was tenant for life, and had no power to make a will; but this point was not pressed in argument, nor proved. Stephen Blake and his wife admitted notice of the will, and of the mortgage for £1,000 and judgments collateral, and also of the judgments of 1808, at the time of the appointment and marriage settlement; and in a schedule to the latter, those debts were scheduled, subject to which the lands were conveyed to the trustees of the settlement. They insisted, further, that the trust in the will, if created at all, was only for the life of Jane Blake. That Peter Blake, a defendant, was the eldest son and heir-at-law of G. E. Blake, who died in 1842, and who was the heir-at-law of Robert Blake, the testator, and of Stephen, the mortgagor. That by deed, dated the 5th of May, 1819, a judgment of Trinity Term, 1808, obtained by John Montgomery against the said Stephen Blake, for the penal sum of £400, was assigned to the said John Callinan. That in the year 1773, one Clare Civile obtained a judgment against Patrick Blake, the father of Stephen, the mortgagor, and Robert Blake, the testator; and that same became vested in Edward Callinan, who, in the year 1818, issued an elegit on foot thereof, and having obtained a finding, brought an ejectment against the said lands of Cloncum; and, having obtained judgment in the year 1819, an habere was executed, putting him in possession of one moiety thereof, and that he continued in possession of same and received the rents thereof till the time of his decease, and that Celia Callinan, his administratrix, continued in possession thereof for several years, till her demand was paid off. That in the year 1820 a bill of revivor was filed in the cause of Callinan v. Blake, that same having become abated by the death of Edward Callinan, the elegit creditor, a bill of revivor was filed in 1825, to which Giles E. Blake appeared that on the 21st of December, same year, G. E. Blake became an insolvent, and the suit again abated. This was the last proceeding in That in the year 1825, Thomas Seymour, a judgment creditor of the said Robert Blake, and Giles E. Blake, filed his bill to recover the amount of his claim, and a receiver was appointed in the suit of Seymour v. Blake, who continued in possession for several years. That Joseph Burke, a creditor of the said Robert Blake, in respect of a judgment of 1810, in the year 1838 obtained an order for the extension of said receiver. That in the year 1832 John Callinan died, and in 1835 his widow, one of the plaintiffs in the present suit, obtained administration to him, and also in the year 1838 she obtained administration de bonis non to Joseph, the mortgagee. That on the 20th day of November, 1843, an application was made to the Master of the Rolls for liberty to proceed in the cause of Callinan v. Blake, notwithstanding the 81st General Order of 1843, and same having been refused, and upon appeal to the Lord Chancellor this decision was confirmed. The bill prayed that the will of Robert Blake might be established against the defendant, Peter Blake, and the trusts thereof carried into effect-that an account might be taken of the sum due on foot of the mortgage and judgment, and an account of the real assets of Stephen received by Robert, the testator, and of the amount to which he was, at the time of his death, a debtor to the real assets of Stephen, and as such, bound to discharge the judg that cause. * See case reported 6 I. E. R. p. 100, and 353. | R. W. Green, Q. C., Christian, Q. C. Mr. Hickey, and Mr. Dundas, for the plaintiff, relied on the trust in the will as taking the demand out of the Statute of Limitations, and cited Dillon v. Cruise (3 I. E. Rep. 70); Jones v. Scott (1 Russ. and M. 255); Hunt v. Bateman (10 I. E. Rep. 360); Commissioners of Charitable Donations v. Wybrants (2 Jur. & Lat. 182; Sc. 7 I. E. R. 580); Bailey v. Ekens (7 Ves. 323); Shaw v. Borrer (1 Keen. 577); Young v. Lord Waterpark (13 Sim. 202); Hargreaves v. Mitchell (6 Mad. 326); Fergus Gore (2 Sch. & Lef. 107); Burke v. Jones (2 Ves, & B.286); Morse v. Langham (stated in judgment of Burke v. Jones, 2 V. & Bea.); Crallan v. Õulton (3 Beav. 1), as to the fact, that the possession by the receiver was inconsistent with the adverse claim of Peter Blake, Gressley v. Adderley (1 Swa. 571); Kellett v. Kelly (5 I. E. R. 34); Adair v. Shaw (1 Sch. & Lef. 243-262); Elliott v. Merryman (2 Barnard, 78); Walker v. Smallwood (Amb. 676); Shephard v. Lutwiche (8 Ves. 26). v. Attorney-General, F. Fitzgerald, Q.C., and F. Meagher for the defendant-Peter Blake-relied upon the adverse entry of G. E. Blake and the statute of Limitations, and contended that there was not such a trust created by the will as would take the case out of the statute, and relied upon the cases of Knox v. Kelly (6 I. E. Rep. 279); Harrison v. Duignan (2 Dr. & W. 295) ; Hughes v. Kelly (3 Dr. & W. 48); Francis v. Grover (5 Hare, 19); Hunt v. Bateman (10 I. E. R. 366). Brewster, Q.C, and Mr. David Boyle, for the children of Stephen Blake, contended that the trust in the will was only implied, and did not come within the exceptions contained in the statute, Hunt v. Bateman (judgment of Lefroy, B.); Young v. Wilton (10 I. E. R. 10); Lawson v. Lawson (3 Bro. P. Cas. 424); Hamilton v. Worley (2 Ves, Jun. 62); Bassett v. Percival (1 Cox 268); Erelyn v. Evelyn (2 P. W. 664); Barry v. Harding (1 Jones aud Lat. 475). Mr. Blackham and Mr. P. Blake appeared for other parties. LORD CHANCELLOR.-In this case, Lorenzo and Ellen Dundas seek relief as creditors of a person named Robert Blake, and their bill is filed to establish the trusts of his will against his heir-at law, Peter Blake, and others, and prays an account in respect of a mortgage and two judgments vested in the plaintiffs. The mortgage bears date the 25th day of May, 1796, with which one of the judgments is collateral; and the second judgment is of Trinity Term, 1808. It appears that in the year 1796, Stephen Blake, the brother of Robert, being seized in fee of the lands of Cloncum, mortgaged same to Joseph Callinan for the sum of £1,000; and on that occasion two bonds were passed-one by Stephen, the mortgagor, and the other by Robert, whose will this suit seeks to establish-on which judgments were entered in Trinity Term, 1796. In the year 1833, the judgment against Robert was redocketed; with respect to the judgment against Stephen, and the mortgage; no claim is now made on them, and the Statute of Limitations is conceded to be a bar to both. The judgment against Robert was given as collateral security to the mortgage, and that is the first security upon which the plaintiff's claim is rested. The second judgment is of Trinity Term, 1808, not against Robert, but against Stephen; and that claim is rested on the ground, that Robert having succeeded to the real estates of Stephen, which were real assets, Robert is liable to the extent of those real assets. That, I think, is the position of the parties. The defendants are of two classes-those persons deriving under the will of Robert Blake and those claiming by a title adverse to that will. As I before said, it is admitted that the mortgage of 1796 is barred by the 40th section of the 3 & 4 Wm. 4, c. 27; and by the effect of the Redocketing Act the judgment against Stephen is also barred; and the case upon the judgment which was redocketed, in 1833, against Robert, is not rested upon that, but the plaintiffs claim relief solely under the trusts of his will, when that will was made, and at the time of his death, it being a subsisting demand. And as to the judgment of 1808, no relief ex directo is claimed; but it is alleged that Robert was a debtor to the real estate of Stephen. The defendants are the persons claiming the estate under the devise in the will. Mrs. Jane Blake, the tenant for life, is now dead, and so is her son, Stephen-his children are entitled in remainder, and form one class of defendants. The other principal defendant, Peter Blake, is in a peculiar position: he is the heir-at-law of G. E Blake, who was heir-at-law of Stephen and Robert, and claims by the title of adverse possession. He has shewn an actual entry by his father, G. E. Blake, upon the death of Robert, nearly thirty years ago; and if his rights be well founded, they will exclude. the plaintiffs' claim. An important question also trise between Peter Blake and the quest ide and ants. The plaintiffs have relied on certain pro ceedings by creditors of Robert as taking the possession from G. E. Blake, and thus preventing the effect of the statute. Without expressing any opinion upon that, the important question now is, whether, upon a bill filed in 1846, the plaintiffs can sustain their claim, even supposing the devisees under the will to have remained in possession since 1819. [His lordship here read the will.] It is argued that by this will the debts of Robert Blake are charged upon his real estate, and no doubt they are so. It is also argued, that a trust is cast upon the devisees, and that they have become trustees for the payment of the debts-that such trusts do not come within the 40th section of the Statute of Limitations, or, the case being that of trustee and cestui que trust, are within the saving contained in the 25th section of the same statute. Although not many cases have been decided upon the effect of a trust in a will since the passing of the act, the decisions have given rise to some difficulty. Prima facie the case comes within the simple words of the 40th section, which applies to all sums of money charged on lands where a present right to receive same accrued more than twenty years before to a person capable of giving a discharge; and prima facie this demand is not within the 25th section; this not being a demand for land or rent, or what can be regarded as land or rent. It would thus seem to come within the plain words of the 40th section, if no case had been decided on the point. The plaintiff's, however, insist that they are entitled to recover on this ground, that the charge in the will creates a trust, and therefore the claim is not within the operation of the 40th section, or is within the saving of the 25th--that by the established operation of the doctrine of trusts, this demand is to be considered as one which no lapse of time can affect, and which cannot be barred by the statute. In considering this question, I think the decisions which would seem to shew that such a demand as the present would not be barred by the old Statute of Limitations, have little or no application to the question which now arises. The 40th section of the late statute contains no exception in favour of such a claim; on the contrary, it would seem to be framed for the purpose of discouraging stale demands, and to relieve the possessors of land from them. I see nothing in the words of the act, nor in its policy, which excepts this claim from its operation. It remains, therefore, to be considered how far, upon the authority of the decided cases, this demand can be sustained; and upon this part of the case, I am relieved from a great deal of embarrassment by the recent judgment of the Court of Exchequer in the case of Hunt v. Bateman; and I think, from the expressions used by the learned judges, I am warranted in saying that if the present case was before them, they would have considered the plaintiffs' demand to have been barred. In that case, there was a trust for payment of the debts of the testator, who devised to trustees for the purpose of their payment, and the court held that the trustees took the estate for that purpose, and stood between the estate and the preposes. The Chief Baron says in his judgment, in page 366, "the question involves two considerations; first, whether when money is secured upon land by means of an express trust for its payment, the Statute of Limitations bars the claim to the money so long as the trust is subsisting; secondly, whether in this case such a trust was created by the will, &c., in favour of the creditors, and if so, whether that trust was subsisting at the time of the sale by which this fund was realized." The Chief Baron then proceeds to consider whether the trust for raising money was, or not, within the 25th sec plaintiffs, and the general proposition as stated in Kelly (6 I. E. Rep.), which was that of a legacy tion; but he considers that question closed by authority, and that the statute did not apply where the relation of trustee, and cestui que trust, existed between the owner of the estate and the owner of the charge. He then says the next question is, whether, between the person entitled to the debt and the person representing the estate devised, the relation of trustee and cestui que trust subsisted; and, after considering the whole context of the will, he says, "I think it is quite clear the trustees took the legal estate in the lands," and that the case was not affected by the decisions in Hughes v.Kelly, Harrison v. Duigenan, and Francis v. Grover; and, in the conclusion of his judgment, he says, "it may be well to add, that we concur in the decisions of Harrison v. Duigenan, Hughes v. Kelly, and Francis v. Grover, ruling that a charge and a devise to a person for his own benefit, subject to that charge, is not enough, without more, to create a trust which prevents the bar of the Statute of Limitations; and our judgment in this case involves no assent to the proposition, that if the right of the trustee to the estate devised to him, in trust, were barred by the Statute of Limitations, the cestui que trust of the charge could the cases, I do not consider that a devise, subsuccessfully rely upon the trust for the purpose of ject to the payment of debts will constitute the recovering it out of the lands." Baron Penne-devisee a trustee. In Harrison v. Duigenan, it was father, in his judgment, (page 380) says, "The principle which appears to me to be extracted from the cases seems to be this, that charges upon lands in the hands of the beneficial owner of the estate, are not within the meaning of the exception in that statute." And in another part of his judgment he says, "It is quite a different case if the legal estate is not vested in a trustee." These two judgments are express declarations on the point in question, that a mere charge on an estate in the hands of the beneficial owner, would not constitute a trust. In all the cases in England, and before Sir E. Sugden, in which it was held that the demand was not barred, there were trustees appointed, and the estate of the trustees was not barred, as in Young v. Lord Waterpark, Blair v. Nugent, and Commissioners of Charitable Donations v. Wybrants. It may be said of the case of Hunt v. Bateman, that the opinions expressed by the judges were upon the words of the will, and should not be considered as an authority, unless in similar cases. I shall now, therefore, consider the other authorities upon the point. The opinion thrown out by the Vice-Chancellor in the case of Lord St. John v. Boughton (9 Sim. p. 223), would have been a strong authority against the plaintiffs, but that it was decided on other grounds. There was an acknowledgment to take the case out of the statute. The first case in Ireland after the statute was Kelly v. Kelly (6 L. Rec. N. S.), in which there was also an acknowledgment, but there, no doubt, Sir M. O'Loghlen seems to be of a different opinion from the Vice-Chancellor in Lord St. John v. Boughton, and states as the grounds of his decision that the trust took the case out of the operation of the statute, and rests his judgment upon the decisions in Scott v. Scott, and Phillippo v. Munnings; the former of which was afterwards reversed by the House of Lords. The case of Dillon v. Cruise (3 I. E. R. 70) was also much relied on by the held that it would not; also in Hughes v. Kelly, |