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![handle is hein.slavery/ssactsengr0838 and id is 1 raw text is: LUSHINGTON'V. SEWELL
the present case the employer surrendered himself, unconditionally, to the agent
whom he employed, in the confidence that the agent sustained the character that he
publicly assumed. The employer had no reason to suspect, nor had any means of
detecting the misrepresentation of the fact, whether they were or not duly constituted
legal brokers. Much less could he apprehend that they were daily and hourly living
in the violation of the law of the country in so acting, and that they kept this
violation lurking in the background, to be brought forward, by way of defence,
against the just demands of those whose confidence they invited and abused. If a
Court of Equity gives effect to a defence so constituted, I do not know that there can
be any reason why an executor or administrator, who has made oath duly to administer
the assets, and executed a bond for that purpose, may not allege those matters in
answer to a bill of disco-[433J-very charging him with fraudulently tendering an
account of the assets. This is the ground upon which I act.
I may here guard myself by stating that it is always with reluctance that I have
used expressions which may cast imputations on the parties; and, from this place,
forbearance is most especially to be observed. But the reasons on which my decision
is founded constrain me to assume, though hypothetically, that the defence against a
discovery in this case arises from the motives I have stated. A demurrer admits
every fact charged in the bill to be true, a plea does the same, except in so far as
every fact is especially traversed. This particular defence (which is neither plea nor
demurrer) must be governed by the rules which apply to demurrer and plea: I am,
therefore, justified in assuming the truth of the facts charged in the Plaintiff's bill.
If an answer be given, satisfactorily rendering an account and denying the imputed
frauds, the hypothetical assumption of the fact by the Court in the present discussion
will fall to the ground, and leave no imputation on the Defendants.
Considering the vast importance of the present case to the great commercial
interests of the country, I have thought it best to hazard a judgment on the broad
principle of the contest, instead of getting rid of the case on the technical distinction.,
But, in point of form, I think the exception to the Master's report could not have
been sustained.
The Plaintiff has taken thirty-five exceptions. The Master has allowed them all.
The exception to the [434] Master's report is single. The Plaintiff, by that exception,
avers that the Master ought to have overruled every one of those exceptions. Now,
if it can be shewn that there is more than one of those thirty-five exceptions which
may be allowed against the Defendants, without either subjecting themselves to
penalties, or without impeaching that rule of Lord Eldon's, taking the rule in its.
most unlimited extent, still then, in point of form, the present exception cannot stand.
If this case rested on the form only, I am free to confess that on that consideration
I should give to the Defendants the opportunity of amending their exception. Having,
however, given my opinion on the broad principle (with an anxious wish to be set.
right if I mistake the principle of the Court), I will do no more than overrule the
exception to the Master's report, and direct the Defendants to answer, and give the
deposit to the Plaintiff.
[435] LUSHINGTON v. SEWELL. June 21, 25, 27, Oct. 29, 1827.
Will. Construction. West India Estate. Heir and Executor.
A testator gave all his real and personal estate to trustees in trust, as to one moiety
for A. for life, with remainder to her children; and as to the other moiety for B.
and her children in like manner. By a codicil he declared that his estates should
not be divided equally between A. and B., but in proportion to the number of their
children ; and he left A. and B. jointly his residuary legatees. By another codicil,
in order to prevent disputes, he gave one of his estates to A. and her heirs, and the
other to B. and her heirs, the number of their children nearly equalizing the value
of the two estates. In a subsequent codicil he mentioned that he had bequeathed
the first estate to A. and her children, and the second to B. and her children ; held,
that A. and B. were entitled to these estates for their lives only, with remainders
V.-C. 11.-21
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