Roystoun, at the time of the sale ;" and granted warrants for letters of incident diligence, for recovering the grounds and instructions of the said debts.

The representatives of Sir James M'Kenzie pleaded that the act of parliament, by reciting these debts as subsisting, and as charges upon the entailed estate, established them as such, was final, and excluded all examination on that head.

To this it was answered, that as to the purchaser of the estate, and all claiming under him, the act was final and conclusive; but with respect to the debts, it left them as they were. That the act supposed them really and bona fide due to third persons, who would therefore have right to the purchase money; but if paid, never meant them to be paid a second time; nor Sir James M'Kenzie, under a pretence thereof, to appropriate to himself the money for discharge of debts, which were either fictitious, or could not from their nature affect the entail. And that whether he had or had not done so, was a question no ways affected by the act.

The interlocutor of the Lord Ordinary was reversed by the Court of Sessions.

Upon an appeal to the House of Lords, it was contended that the recital of the debts in the act was all the information and suggestion of the partics. The enacting part, so far as it directed the discharge of those incumbrances out of the purchase money, only pursued the recital; which, if ill founded, from the misinformation of the parties, was not conclusive: and though the appellant, by having given his consent to the act, might be thought concluded; yet being drawn into such contract by Sir James M'Kenzie's misrepresentation of the true state of the debts who misled both the remainder-men and the legisVOL. V. D

Biddulph v. Biddulph, Rep. Office, Book A.1790. pa. 296.

lature; he had a right, as against Sir James's representative, to inquire into the reality of the debts, and application of the purchase money. Nor could a consent, thus fraudulently obtained, any more stand in the way of the relief he sought, than it would in case of an ordinary transaction.

On the other side it was insisted that the debts and incumbrances specified in the act of parliament must be taken as they were recited between the parties to 'the act; for though a saving clause was inserted for the rights of those who were not parties, yet it was a binding law to those who were. The act directed the money arising by the sale of the lands and barony of Roystoùn to be applied in payment of the debts, the amount of which was particularly stated; and the surplus only was to be laid out in the purchase of lands, to be settled in the order and course of succession provided by the entail.

The House of Lords ordered, that the interlocutor complained of in the appeal should be reversed; and that the interlocutor of the Lord Ordinary should be affirmed and ordered that the Court of Sessions should proceed thereupon according to justice and the rules of that Court.

the

53. The doctrine laid down by Sir William Blackstone has been fully confirmed by the following modern case, in which the Court of Chancery relieved against express words of a private act of parliament. 54. Simon Biddulph by his will, made in 1730, devised his real estates, which he had charged with the payment of several sums of money, to trustees, upon trust to raise and pay all such debts as he should owe at the time of his decease, or so much thereof as his personal estate should not extend to pay; and to settle and assure the residue to his grandson Theo

philus Biddulph for life, without impeachment of waste, remainder to his first and other sons successively in tail, with several remainders over.

Simon Biddulph died in 1736, leaving the said Theophilus Biddulph his heir at law; who entered into possession, under the will of Simon Biddulph, of all the estates whereof he died seised; and upon the death of Sir Theophilus Biddulph of Lapley, in 1743, he became a baronet, and entered into possession of other estates, whereof Simon Biddulph had the reversion, expectant on the death of Sir T. Biddulph of Lapley, which were of considerable value, and charged with the payment of several sums of money; but the rents thereof were sufficient to keep down the interest of the incumbrances affecting the same.

By a private act of parliament passed in 27 Geo. II. intituled, “An Act for the sale of the settled estates of Sir Theophilus Biddulph, baronet, in the county of Stafford, &c. for raising money to discharge incum. brances affecting the same; and for laying out the surplus in the purchase of other lands, to be settled to the uses therein mentioned;" after reciting the several incumbrances on the said estates, and that the said Sir Theophilus Biddulph had, out of his own money, raised and paid off 2,819/. 4s. or thereabouts, being the deficiency of the personal estate of Simon Biddulph, in the discharge of the remainder of his debts, which remained due to the said Sir Theophilus Biddulph, and charged on the settled estates, with a considerable arrear of interest; and reciting that it would be for the benefit and advantage of Sir T. Biddalph, and of all the persons claiming under the will of Simon Biddulph, if the incumbrances affecting the settled estates, which carried a high interest, were paid off and discharged, which could only be done by

sale of part of the settled estates; and therefore the said Sir T. Biddulph and all persons claiming under the will of the said Simon, were desirous and had agreed that certain parts of the estate should be sold for that purpose, freed and discharged from the said incumbrances; and that the surplus of the money, after payment of the incumbrances, should be laid out in the purchase of other lands, more contiguous to the estate, to be settled to the uses of the will of Simon Biddulph. It was therefore enacted, that the said estates should be vested in trustees, their heirs and assigns, free from the trusts therein mentioned, in trust, with the consent of Sir T. Biddulph, to sell the same, and to apply the money in payment of the incumbrances, and all interest which should be then due and owing for the same; and also in payment of the said sum of 2,8197. 4s. due to Sir T. Biddulph, together with all interest that should have accrued due for the same to the time of the payment thereof; and to lay out the remainder of the money in the purchase of lands, to be settled to the uses of Simon Biddulph's will.

The trustees who were named in the act of parliament did not act, and new trustees were appointed. Sir T. Biddulph himself sold the estates, and paid off the incumbrances, and also paid or took credit to himself for what was due on account of interest; and laid out the residue in the purchase of lands, which he settled to the old uses.

Theophilus Biddulph, the eldest son of Sir T. Biddulph, filed his bill in Chancery against his father, and the trustees, stating the above facts, and that there remained a balance in the hands of the trustees of 7,2071., which had not been invested in the purchase of lands, according to the directions in the and the plaintiff being entitled to an estate

act;

tail, expectant on the estate for life of his father, in the land to be purchased, he prayed that the said sum of 7,2071. might be laid out in the purchase of lands, to be settled to the old uses.

Sir T. Biddulph by his answer admitted that he, acting for the trustees in the act, did, out of the money arising from the sale of the estates which were sold under the act, pay and apply not only so much as was necessary to discharge the incumbrances affecting the estates, but also all such interest as was due and owing on the said incumbrances at the respective times when the same were paid off; namely, as well such interest as was due and owing on the said incumbrances at the time when the defendant came into possession of the estates, as what afterwards accrued; the same being directed by the act. And submitted that such payments of interest were respectively made, as being directed by the act; and that there being such directions in the act for payment of all interest, the defendant, as tenant for life, was not bound to keep down the interest of the incumbrances, from the time he came into possession of the estates; and that the act of parliament was not a fraud upon the plaintiff and the persons interested in the estates; and that the defendant ought not to make a compensation for such interest, as required by the plaintiff's bill. But admitted that the rents and profits of the estates which were charged with the said incumbrances were more than sufficient to answer the interest of the incumbrances; and said he did not, in suing for and obtaining the act of parliament, intend any fraud on any of the persons who were to become interested in the said estates after him; and said that the interest which accrued, after he came into possession of the said estates, amounted to 7,2071.; and stated the sums DS