« ZurückWeiter »
Easter Term, 1829.
Mr. Justice HOLROYD resigned his seat, as one of the Judges of the Court of King's Bench, and was succeeded by James Parks of the Inner Temple, Esq.; who was called to the degree of Serjeant, and gave rings with the motto, “ Justitiæ tenax,"-He took his seat in that Court on Tuesday the 18th of November, and was afterwards knighted.
Thomas DENMAN, Esq. took his seat within the Bar, having received a patent of precedence.
Hilary Term, 1829. EDWARD GOULBURN, Esq. was called to the degree of the Coif, and gave rings with
“ Nulla retrorsum."
Easter Vacation, 1829. Sir William DRAPER Best resigned the office of Chief Justice of the Court of Common Pleas, and was created Baron Wynford ;-he was succeeded by Sir NICHOLAS CONYNGHAM TINDAL, Knt., who was called to the degree of Serjeant, and gave rings with the motto, " Quid leges sine moribus!" He took his seat as Chief Justice of that Court on the first day of the ensuing Trinity Term.
Sir CHARLES WETHERELL, his Majesty's Attorney General, resigned his office, and was succeeded by Sir James SCARLETT, Knt.
EDWARD BURTENSHAW SUGDEN, Esq. was appointed his Majesty's Solicitor General in the room of Sir Nicholas CONYNGHAM TINDAL, and was knighted.
Trinity Term, 1829. William Henry TINNEY, THOMAS PEMBERTON, James Lewis KNIGHT, Esqrs.; and the Honourable Charles Ewen Law, were respectively appointed his Majesty's Counsel learned in the Law, and took their seats within the Bar accordingly.
CASES ARGUED AND DETERMINED
Court of Chancery..
COMMENCING IN THE
SITTINGS BEFORE MICHAELMAS TERM, 9 GEO. IV.
The facts of this case are fully stated in the report of the original hearing, before the Vice Chancellor. See 5 Law Journ Chanc. p. 57.
The order then made was, “that so much of the said Master's report, dated the 18th of April 1826, as certified that his Majesty was entitled to call for an account of the balances in the said report mentioned, and to take them out of the hands in which they then remained, be confirmed ; and it was ordered, that the 2,5901. 1s. 7d. bank three per cent. annuities, standing in the name of the Accountant-General of this Court, in trust in these causes,-the claim of the Crown on the testator's estate-should be sold;" and, after providing for the payment of costs out of it, it was ordered, “that, out of the residue of the money to arise by the said sale, and any interest which might ac.
Vol. VII. CHANC.
crue on the said bank annuities previous to the said sale, the sum of 2,238l. 58. 7d. should be paid to George Maule, on behalf of the petitioner, his Majesty's Attorney-General, acting on behalf of his Majesty ; but, in case the said residue of the money to arise by the said sale, and the said interest should not be sufficient to pay the said sum of 2,2381, 58. 7d. as aforesaid, that the whole of the said residue of the money to arise by the said sale and the said interest should be paid to the said George Maule, on behalf of the said petitioner (the Attorney-General), acting on behalf of his Majesty as aforesaid, in satisfaction of the claim on the said testator's estate, as far as the same would extend."
From this order two of the plaintiff's appealed; praying, by their petition, that the order of his Honour, the Vice Chancellor, dated the 7th of June 1826, might be rescinded, and that, in lieu thereof, it might be declared, that there was not any further sum dne and owing from the estate of the testator, William Brummell, to the Crown, in respect of the regiments in his agency, or in the agency of Messrs. Bishopp and Brummell.
In the discussion, the same points were raised as in the court below.
Mr. Pepys, Mr. Treslove, and Mr. Pember- failed, there seems to be no reason nor juston, were for the appellants :
tice in the claim set up, on the part of the Mr. W. Brougham, for the Crown. plaintiffs, to retain this money.
Some argument was built upon
the manner The judgment of The Lord Chancellor in which the accounts of Messrs. Bishopp and was as follows:
Brummell were kept; but it does not appear It appears that Messrs. Bishopp and to me, that the accounts made any change in Brummell carried on the business of army their situation with respect to these sums; agents in partnership till the death of the money advanced by the Crown was Bishopp; and that it was afterwards car. carried in the accounts to the credit of the ried on by Brummell alone, under the same respective officers, and they were debited firmy, till the year 1794, when he died. A with the payments which they received, it considerable sum of money, amounting in does not appear that there was any private the whole to 22381., which was received arrangement between the parties; when the by the house in the interval, between the money was received by the agent, years 1783 and 1794, on account of the received for the purpose of being paid to subsistence and arrears of the officers, and the officers in discharge of their claims, and other allowances, has remained in the hands the entry in the books amounts only to an of Messrs. Bishopp and Brummell, or of admission of that which, without such entry, Mr. Brummell, without any demand hav- would not have been open to dispute. ing been made of any part of it, either by While the money remained in the hands of the officers, on account of whose pay and the agent, he would be liable to the claims other claims it was received, or by any of of the officers, or their representatives ; but their representatives. Under these circum- such liability will, I think, under the cirstances, it is contended, by the plaintiffs, cumstances of the case, terminate when the that the Crown is not entitled to claim the money is repaid to the Crown. It appears repayment of this money out of the estate to me, therefore, that there is no ground of Mr. Brummell ; but that the money is for sustaining this appeal ; and the petition due to the individual officers on whose ac- must therefore be count it was received, or to their personal
Dismissed. representatives, and that they alone can demand it,
It appears that the agents are appointed by the colonels of the respective regiments, by power of attorney ;—the sub- 1828. stance of the instrument is set out in the October. Master's report :-when so appointed, the agent is adopted by the Crown; the public In a lease, the name of A is inserted as money is paid into his hands for defraying the lessee upon a trust for B, but there is no the expenses of the regiment, and he ac- declaration of trust in writing : A commits counts for the sums so received to the
go- an act of bankruptcy, and then executes a vernment. It is impossible to read the declaration of trust : afterwards, a commisevidence and the provisions of the act sion of bankruptcy issues against A :-Held, 23 Geo. 3. c. 50, and to resist the conclu- that this declaration of trust, though executed sion, that, whatever he may be in relation after the bankruptcy, will prevail in favour to the colonel, he acts in this business as of B, against the assignees. the agent also of the Crown. In this character, Messrs. Bishopp and Brummell, or The facts of this case are stated in the Mr. Brummell, received the money in ques- report of the hearing and judgment before tion; it was advanced to defray certain the Vice Chancellor. (1) expenses; it has not been so applied, and, after so long an interval, there is no pros- The plaintiffs appealed; and the case pect that it will ever be required for the was again argued at great length. objects for which it was originally issued; the purpose of the advance having thus
(1) 3 Law Journ. Chanc. 220.
GARDNER V. ROWE.
The judgment of the Lord Chancellor I have read through the evidence, and the was as follows:
summing up of the learned Judge who This was an appeal from three orders presided at the trial, and who appears to pronounced by the late Vice Chancellor. have given the defendants the full benefit The principal point insisted upon, on the of every observation in their favour, which part of the defendants, related to the deed the evidence afforded,—and after consiexecuted by Wilkinson, containing the dering the whole case, I cannot say that declaration of trust, and which, being exe- I think the jury have erred in finding their cuted after he had committed an act of verdict for the plaintiff. bankruptcy, was contended to be inopera- I am of opinion, therefore, that these tive and void. The case upon this point appeals must be dismissed ; and, as to the was fully argued before the Vice Chan- two first orders, with costs. cellor, and I see no reason to differ from the opinion expressed upon it by that learned Judge." Assuming the bankrupt to have been a trustee for Mr. Rowe, there Nov. 1827.
WILLIS 0. BLACK. was nothing, I think, to prevent him from Nov. 1828. making a valid declaration of trust, not
Construction. withstanding his bankruptcy.
It is true, that the property of a trader In a marriage settlement, reciting that cannot be assigned by him after his bank- the father of the wife had agreed to ruptcy: the property is no longer his; it is make a further provision for his daughter vested in his assignees. But property held equal to his younger child or children, in trust, is not the property of the bankrupt;
he covenanted to give or secure to the trusts it does not pass to his assignees. The only of the settlement, as large a share of his question therefore, as it appears to me, in property as he should give to any of his this case is, whether the declaration con- other younger children, to take effect on tained in the deed, was founded upon a
the death of the survivor of himself and previous trust, or was altogether fraudu- his then wise; and that, if he died inleslent. That question, however, has been tale, or omitted to make the provision bedecided in substance by the jury upon the fore covenanted for, there should be paid to trial of the issue; for they have found that the trustees of the settlement as greal a share the name of Wilkinson was used in the of his property, as any younger child should original deed, as a trustee for Rowe. in thai event become enlilled 10 :-Held, that
It was further contended, that the order the decree of the Vice Chancellor, declaring directing the issue ought not to have been
that those interested under the selilement were made; and from that order the defendants entitled to a further provision, equal only lo have also appealed. The issue was di- that which any younger child took upon the reeted in March 1822, for a trial at the death of the covenanlor, and without refersummer assizes. The trial was delayed ence to advancements made by the covenantor until the following spring; and, upon the during his life, was erroneous; and verdict being found for the plaintiff Rowe, That the parties interested under the selan application was made for a new trial; tlement were entitled, on the settlor's death, to and it was not till after that application a share of his properly equal to what any had failed, and a subsequent delay of two of his younger children either received during years, that the defendants appealed against his life, after the date of the settlement, by the order directing the issue. They take way of advancement, or took upon his death, the chance of a verdict in their favour, try the effect of a motion for a new trial, In the second volume of the Law Journal, and, failing in both, they then, for the first Chanc. 131, will be found a statement of the time, object to the original order. I think, facts of the case, and what passed on the orihowever, under the circumstances of this ginal hearing and the rebearing of the cause case, there is no ground of objection to before the Vice Chancellor. the order directing the issue ; and with The decree of the Vice Chancellor prorespect to the motion for the new trial, nounced upon the rehearing, declared, that
the decree should be varied by omitting contained a covenant upon which the presuch part thereof as declared that the tes- sent question arises. The covenant is in tator was bound by the covenant in the set- these words—"And, for the considerations tlement bearing date the 1st day of June aforesaid, the said Patrick Black doth here1803, to make provision for his daughter by for himself, his heirs, executors, admi- . Margaret, her husband, and the issue of the nistrators and assigns, covenant, promise, marriage, including the sum of 14001. ad- and agree, to and with the said William vanced at the time of the marriage, equal Black and Richard Willis (who were the to the share of any younger child either in trustees), their executors and administrators, his real or personal estate, by provision or in manner following, that is to say, that he gift in his lifetime, or by his will, to take the said Patrick Black, by his last will and effect upon his death ; and whereby it was testament, or otherwise, shall and will give, ordered that it should be referred to the devise, bequeath, or otherwise settle and Master to inquire what provision or gifts secure, to or in favour of the said Richard were made by the testator in his lifetime, or Formby and the said Margaret his intended by his will, in favour of his younger children wife, and to and for the issue of the said out of his real and personal estate; and it intended marriage, upon the trusts, neverwas declared, that the said testator was theless, aforesaid, as full and great a part only bound by such covenant to give or and share of his estates, effects and proprovide for his said daughter, her husband, perty, as he shall by his said will or otherand the issue of their marriage, as full and wise, give or provide, to or for the use of great a part and share of his estate, any of his other younger child or clíildren, effects and property, as his other younger
to take effect on the death of the survivor children would become entitled to, in the of himself and his present wife ; and also event of his death, whether to take effect in that in case the said Patrick Black shall possession at his own death or at the death happen to die intestate, or omit to make of his wife, in the said settlement named, if such provision or bequest to the use or in she should happen to survive him.
favour of the said Richard Formby and the From this decree the plaintiff appealed. said Margaret his intended wife, and to and
for the issue of the said intended marriage, Mr. Heald and Mr. Preston were for the beirs, executors or administrators of the plaintiffs :
the said Patrick Black, shall and will pay Mr. Horne appeared in support of the or cause to be paid to the said William decree.
Black and Richard Willis, or the survivor
of them, his executors or administrators, as The argument for the respondent was full and great a part and share of the estates, founded on the reasons stated in the judg- effects and property of the said Patrick ment of the Vice Chancellor.
Black, as or to which his younger child or
children shall in that event become enThe argument for the appellants was titled.” adopted by the Lord Chancellor, and coin- Now this covenant divides itself into two cides with the views stated in his judgment. parts, and, in the course of the argument, it
was so divided and so considered; and it The judgment of the Lord Chancellor
was so divided and so considered by the was as follows:
Vice Chancellor, when he gave his judg
ment, I believe, on both occasions. The The Lord Chancellor.-- This case turns question first is, as to the meaning of the on a question relating to the construction of former part of the covenant. In substance a covenant in a marriage settlement. It is it is this, that the father, for the consideranot necessary to state the facts in detail. tions aforesaid, stipulates that he shall give Upon the marriage of a person of the name to the parties to the marriage and to their of Formby with Miss Black, the daughter issue, by his last will or otherwise, as large of Patrick Black, 14001, was settled upon a proportion of his property as he shall by the husband and wife, and upon the issue of his last will or otherwise give to his younger the marriage; and in that settlement was children, to take effect on the death of the