Whitley J:

This was an action to set aside a judgment. The Plaintiffs are beneficiaries under the will of Cheah Choon Seng deceased and in the course of the hearing they obtained an Order whereby they were appointed to represent all the beneficiaries under that Will. The second Defendant who is bankrupt is the sole trustee of the Will. The first Defendant is a moneylender. The third Defendant is joined as the Official Assignee of the property of the Second Defendant and is willing to submit to any order.

Cheah Choon Seng died on the 4^th February 1916 and the second Defendant became the trustee in 1921 in the place of Cheah Hee Nyan retired.

On the 31^st December 1928 the second Defendant borrowed from the first Defendant the sum of $6,000 with interest at $1.10 per $100 upon a promissory note payable on demand signed by the second Defendant with the addition beneath his signature of the words "Trustee of the state of Cheah Choon Seng deceased" stamped with a rubber stamp.

On the 5^th January 1934 in Originating Summons No. 142 of 1933, the first Defendant supported by his own affidavit and that of the second Defendant, applied for an order that the Deputy Accountant General Penang be directed to pay to him the sum of $4,846.96 being the amount of principal and interest due on this note from the Estate of the deceased. The matter came before Savage Bailey, J on the 12^th January 1934. Both first and second Defendants were then represented by different solicitors from those who appear for them in the present action. Messrs. Ross and Hogan attended in Chambers on behalf of certain beneficiaries and objected to the application on the grounds that the debtor was personally liable and not the Estate of the deceased. The Summons was withdrawn by the applicant's (the present first Defendant's) then solicitor.

On the 6^th February 1934 in Suit No. 26 of 1934, the first Defendant instituted proceedings against the second Defendant as trustee for the recovery of the sum due on the note. The second Defendant entered an appearance through his then solicitor without notifying any of the beneficiaries. Thereupon the first Defendant applied for leave to enter judgment and swore an affidavit in support stating that the second Defendant as trustee of the Estate was so indebted. On the 8^th March 1934, the first Defendant with the consent of the second Defendant and in the absence of anyone representing the beneficiaries obtained leave to enter final judgment against the second Defendant as such trustee and on the 16^th March 1934 the first Defendant entered judgment against the second Defendant in the common form used against an executor. This is the judgment which it is sought to set aside.

All the foregoing facts are admitted.

The Plaintiffs contend that the judgment was obtained secretly and collusively against the Estate at a time when the second Defendant was a bankrupt and that he consented to the judgment in order to evade liability himself and in fraud of the beneficiaries of the Estate.

The first and second Defendants deny any fraud, secrecy or collusion and contend that the money was borrowed for the purposes of the Estate and used to reduce the Estate's overdraft. Entries in the book support this contention but on the other hand it would appear doubtful whether the Estate derived any real benefit from the transaction inasmuch as no overdraft might have been necessary had it not been for repeated heavy drawings by the second Defendant. However it is not now necessary to decide that question which would only become material if and when the second Defendant seeks to be indemnified by the estate.

It is well settled law that upon a contract of borrowing made by an executor after the death of the testator the executor is only liable personally and cannot be sued as executor against the assets of the testator and the following passages from the judgment of James, LJ in the leading case of Farhall v. Farhall , LR 7 Ch. Appeal Cases at p. 125 s