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him upon the said judgment to wit on 8c. at 8c. a certain commission of bankrupt was in due manner awarded and issued forth against him the faid Robert Maclagan under the great seal of Great Britain directed to certain commissioners therein named under which said commiffion he the faid Robert Maclagan was afterwards in due manner adjudged and declared a bạnkrupt to wit at &c.; that the faid Robert Maclagan having been fo adjudged and declared bankrupt as aforesaid and having in all things conformed himself as such bankrupt to the severa) statutes concerning bankrupts, he the faid Robert Maclagan afterwards and before the return of any writ of capias ad fatiffaciendum against him upon the faid judgment in the faid declaration mentioned to wit on 8c. at Sc. in due manner obtained from the major part of the commiflioners acting under the faid commiffion and from fufficient in number and value of the creditors who had proved their debts under the said commission his certificate of conformity to the several ftatutes made and then in force concerning bankrupts which said certificate was afterwards and before the return of any writ of capias ad fatif faciendum against the said Robert Maclagan upon the faid judgment in the said declaration mentioned and also before the suing forth of the original writ of the said Plaintiff against the said Defendant to wit on fc. at fc. in due manner allowed and confirmed by the Lord High Chancellor of Great Britain according to the form of the Statute in such case made and provided. And that the said commission of bankrupt hereinbefore mentioned is ftill in full force and that the cause of the said action or suit in which such judgment was so recovered as aforesaid againft the said Robert Maclagan accrued before such time as the faid Robert Maclagan fo became a bankrupt as aforesaid to wit at 8c. And this &c. Wherefore &c. To this there was a special demurrer, afligning for causes “that the said plea does not state that the said Robert Maclagan was a trader within any of the Statutes made concerning bankrupts. And that the faid plea does not ftate how or in what manner the faid Robert Maclagan became a bankrupt And that the said plea does not state that the said Robert Maclagan owed any debt or debts upon which the faid commiflion in the faid plea mentioned could legally have been awarded or ifsued And that the said plea does not state that the said commiffion was awarded or iffued

upon the petition of any person or persons to whom the said Robert Maclagan was indebted And that the faid

plea

VOL. I.

1799.

DONNELLY

Dunn.

plea is in other respects defective insufficient and informal.” Joinder in demurrer.

Le Blanc Serjt. in support of the demurrer observed, ift, That the bankruptcy and certificate of the principal were not usually pleaded in discharge of bail, but that the Court exercised a summary (a) jurisdiction where the principal had obtained his certificate before the bail were fixed. 2dly, That the 5 Geo. 2. c. 30. gives the general plea of bankruptcy to the bankrupt only, and that in all other cases bankruptcy must be pleaded in the same manner as was necessary before that Statute; he cited Zulley v. Sparkes and others, 2 Ld. Raym. 1546. 2 Str. 869. S. C.

Marshall Serjt. who was to have argued in fupport of the plea, finding the opinion of the Court against him, moved for leave to amend, which was accordingly granted.

BULLER J. expressed a doubt whether the Defendant should not have fought relief by an application to the fummary jurifdiction of the Court, inftead of pleading the bankruptcy and certificate of the principal. (6)

3 Таип. 47.

(a) Vid. Woolley v. Cobbe, i Burr. 244. such case made and provided And the time and Cockerill v. Oruflon, i Burr. 436. certificate was afterwards and before the re

(6) In the course of this term the follow- turn and filing of any such capias ad fatis. ing case was also decided :

faciendum and also before the ifiuing of fuch Beddome and another v. Holbrooke and writ of scire facias as aforesaid to wic on Gr. another.- Scire facias on a recognizance of at &c. duly allowed and confirmed accordbail. To this the Defendants pleaded “ that ing to the form of the Statute in such case R.H. (their principal) in the said writs of made and provided And this 66. Where. fcire facias and declaration thereon men- fore &c."' The Plaintiffs put in a replica. tioned after the recovery of the said judg- tion, to which there was a special demurrer. ment and before the issuing of the said firit Shepberd Serjt. was proceeding to argue seire facias and before any capias ad fatif- in support of the demurrer to the replication, faciendum fued forth upon the judgment but Runnington Serjt. on the other fide re'aforelaid at the suit of them the laid Plain- ferred the Court to the plea as radically titts against the said R. H. had been return- bad. ed and filed to wit on &c. at 6c. became a Of this opinion were the Court. And bankrupt within the true intent and mean- Buller J. (ubfente Eyre Ch. J.) said, ing of the several Statutes made and now in the plea is bad on every account. force concerning bankrupts And that the neral plea is only given to the bankrupt faid R. H. having fo become bankrupt as himself

. And I am by no means satisfied, aforesaid afterwards and before any such that the bankruptcy of the principal can be writ of capias ad satisfaciendum was fued pleaded by the bail. It may afford ground forth at the suit of the said Plaintiffs against for the Court to give relief on inolion, but the iaid R. H. on the judgment aforesaid to I do not see how it can be made a legal dewit on c. at &c. did duly obtain his certi- fence. ficate according to the form of the Statute in

Judgment for the Plaintif.

The ge

1799.

Nor can the

interfere on the

dead.

VAN BRAAM V. Isaacs.

June 3d. THIS This was an application calling on the Plaintiff's executor to if a bond and shew cause why a warrant of attorney given to secure an

warrant of attor

wey given to see annuity should not be delivered up to be cancelled, and the cure an annuity, judgment entered thereon be set aside. It was moved on two noticed in the objections to the memorial, viz. ist, That neither the warrant memorial

, than of attorney or the annuity bond was fufficiently described: by way of recital 2dly, That the names of the witnesses to those two inftruments deed which is were not mentioned.

set out, it is not

a sufficient comThe memorial set out an indenture bearing date the 20th of pliance with the August 1781 between the Plaintiff and Defendant, which inden- iz Geo. 3. 6. 26. ture after reciting that the Defendant had executed a bond Court refuse to bearing even date with the said indenture in the penal sum of

ground of 1000l. conditioned for the payment of an annuity of 100l. to the 18 years having Plaintiff, and also that for the better securing the said annuity grant, and the the Defendant had executed a warrant of attorney of the fame grantee being date, proceeded to the grant of the annuity. The witnesses to the indenture were regularly stated in the memorial, but no other notice was taken of the bond and warrant of attorney than what was introduced by the recital in the deed. The grantee was dead.

Marshall Serjt. in the course of the last term shewed cause. The object of the act, as appears by the preamble, was to prevent secrecy in annuity transactions; and it was with that view that all the deeds were ordered to be memorialized, and all the witnesses to be mentioned. The answer therefore to the first objection is, that the bond and warrant of attorney having been mentioned in the recital of the deed, the public is equally informed of all the securities, as if a substantive allegation had been made of the bond and warrant of attorney. Mentioning the confideration by way of recital has been held fufficient. Sowerby v. Harris, 4 Term Rep. 494. and Hodges v. Money and arother, 4 Term Rep. 500 (a). With respect to the second objection, it is only necessary that the names of all the witnesses should appear on the face of the memorial. The reason is obvious; that every person interested may be able to get at all the evidence relative to the transaction. But it appears from the bond and warrant of attorney now in court, that the witnesses to the indenture were also witnesses to

(2) Vid. etiam Cousins v. Thompson, 6 Term Rop. 335.

G G 2

those

1799.

VAN BRAAM

Isaacs.

those inftruments. Besides, admitting the objections to be valid, the Court will not give them effect after the death of the grantee, and in a case where the annuity has stood eighteen years unimpeached (a).

Le Blanc Serjt. in support of the rule. The Court has never refused to interfere on account of the death of the grantee, except in cases where the application has been made on the ground of something which passed at the time of granting the annuity, and which the grantee only could contradict; as where part of the consideration-money has been retained or paid back: and with respect to the length of time which has elapsed since this annuity was granted, it is sufficient to say that the grantee has enjoyed for eighteen years, an annuity for which he gave only five years purchase, and which he never ought to have enjoyed at all. This clearly is only a memorial of one deed inftead of a memorial of “ every deed” as required by the act. A mere recital in the indenture of a bond and warrant of attorney cannot be a sufficient compliance with the act; fince mention of those -instruments

may

have been introduced with a view to take a Lum of money under pretence of a charge for the deeds, and they may never have been executed. This case may be distinguished from those in which a recital of the confideration has been held fufficient; for if the whole confideration recited be not actually paid, the annuity is void under the fourth fection of the act. As to the second defect, it cannot be cured by matter dehors. The memorial runs “ which faid indenture is witneffed by A. and B." How then is the grantor or any other person interefted given to understand that the other inftruments referred to were witnessed by the fame persons.

EYRE Ch. J. As at prefent advised I do not see how these objections can be got over. The cases which have been cited in support of this memorial only tend to establish that a statement by way of recital of the contents of a deed is fufficient; for the confideration is part of the contents of the deed. Perhaps there may be good ground to support those cases. And yet it is apparent that the confideration recited in the deed and the true confideration may be very different things. The object of the 17 Geo.3. c. 26. having been to give every opportunity of scrutinizing annuity transactions, perhaps the better construction would

(a) Vid. Symmonds v. Mortimer, s Term ciated the annuity for the grantee, the Court Rep.140. Witby v. Woolley, 7Term Rep.540. refused to set the annuity alide on a repre and Poole v. Cabanes, 81. R. 328. in which sentation of facts which that person only laft case the annuity having been regularly could have answered. paid during the life of the person who nego

hare

1799.

VAN BRAAM

Isaacs.

have been to have required a positive allegation of the consideration actually paid. However as the consideration is always to be found in the body of the deed, it may have been reasonable to hold that a memorial of the deed should be a memorial of the particular parts of the deed specified. But how can that determination affect other instruments which are quite dehors the deed, and on what construction are we to dispense with the memorial of any deeds, when the Statute requires a memorial of every deed? Can it be said that a memorial of one deed which recites other deeds to have existed is a memorial of every deed recited ? If an act requires all, the deeds of a mortgage to be inrolled, and the bond recites the indenture of mortgage, will it be contended that by the enrolment of such a bond the law is satisfied? With regard to the names of the witnesses the same difficulty occurs. If we could dispense with a distinct memorial of the bond and warrant of attorney, we might be satisfied without a description of the witnesses to those deeds: referring for the witnesses to the principal deed. However I should with the Court to pause before it exercises a summary jurisdiction in the case of a grant made eighteen years ago; and in which the grantee is dead. This being an application to the general fummary jurisdiction of the Court over all warrants of attorney, I see no reason why we should not expect the same rules to be followed in this, as in other applications to our summary jurifdiction; we require them to be made in the first instance, and before the rights of parties are fixed and determined. There is a clause in the 17 Geo. 3. by which the Court is directed to interfere, but that relates to cafes of fraud, and there we are empowered to order the securities to be delivered up to be cancelled. In this case if we act, it will be on our general jurisdiction, and not under the 17 Geo. 3.

Buller J. The queftion with respect to the discretion of the Court principally depends on the nature of the instrument. In this case if the Court do not interpose in the manner pointed out, I do not see how they can interpose at all. By the instrument which has been given the question is concluded. And I apprehend that in all cases where a party is precluded by a warrant of attorney from litigating a question which ought to be tried, the Court will interfere. The words of the act give us no discretion.

HEATH J. Had this been a recent transaction I should have had no doubt. The only question is, whether the Court has

any

@G 3

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