him upon the faid judgment to wit on &c. at &c. a certain commiffion of bankrupt was in due manner awarded and iffued forth against him the faid Robert Maclagan under the great feal of Great Britain directed to certain commiffioners therein named under which faid commiffion he the faid Robert Maclagan was afterwards in due manner adjudged and declared a bankrupt 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 fuch bankrupt to the several ftatutes concerning bankrupts, he the faid Robert Maclagan afterwards and before the return of any writ of capias ad fatif faciendum against him upon the faid judgment in the faid declaration mentioned to wit on &c. at &c. in due manner obtained from the major part of the commiffioners acting under the faid commiffion and from fufficient in number and value of the creditors who had proved their debts under the faid commiffion his certificate of conformity to the feveral ftatutes made and then in force concerning bankrupts which faid certificate was afterwards and before the return of any writ of capias ad fatiffaciendum against the faid Robert Maclagan upon the said judgment in the faid declaration mentioned and also before the suing forth of the original writ of the faid Plaintiff against the faid Defendant to wit on &c. at &c. in due manner allowed and confirmed by the Lord High Chancellor of Great Britain according to the form of the Statute in fuch case made and provided. And that the faid commiffion of bankrupt hereinbefore mentioned is ftill in full force and that the caufe of the faid action or fuit in which fuch judgment was fo recovered as aforefaid againft the faid Robert Maclagan accrued before fuch time as the faid Robert Maclagan fo became a bankrupt as aforefaid to wit at &c. And this &c. Wherefore &c. To this there was a special demurrer, affigning for caufes "that the faid plea does not ftate that the faid 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 faid plea does not ftate that the faid Robert Maclagan owed any debt or debts upon which the faid commiflion in the faid plea mentioned could legally have been awarded or iffued And that the faid plea does not state that the said commiffion was awarded or iffued upon the petition of any perfon or perfons to whom the faid Robert Maclagan was indebted And that the said plea VOL. I. G G 1799. DONNELLY 0. DUNN. 1799. DONNELLY ย. DUNN. 3 Taun. 47. plea is in other refpects defective infufficient and informal.” Joinder in demurrer. Le Blanc Serjt. in fupport of the demurrer obferved, 1ft, That the bankruptcy and certificate of the principal were not usually pleaded in difcharge of bail, but that the Court exercifed a fummary (a) jurifdiction 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 cafes bankruptcy must be pleaded in the fame manner as was neceffary before that Statute; he cited Tulley 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. expreffed a doubt whether the Defendant fhould not have fought relief by an application to the fummary jurifdiction of the Court, inftead of pleading the bankruptcy and certificate of the principal. (b) (a) Vid. Woolley v. Cobbe, 1 Burr. 244. and Cockerill v. Orfion, 1 Burr. 436. (6) In the course of this term the following cafe was alfo decided : Beddome and another v. Holbrooke and bankrupt within the true intent and mean- fuch cafe made and provided And the fame certificate was afterwards and before the return and filing of any fuch capias ad fatiffaciendum and also before the iffuing of fuch writ of feire facias as aforefaid to wit on E. at &c. duly allowed and confirmed according to the form of the Statute in such case made and provided And this &. Wherefore." The Plaintiffs put in a replication, to which there was a special demurrer. Shepherd Serjt. was proceeding to argue in fupport of the demurrer to the replication, but Runnington Serjt. on the other fide referred the Court to the plea as radically bad. Of this opinion were the Court. And BULLER J. (abfente EYRE Ch.J) faid, the plea is bad on every account. The general plea is only given to the bankrupt himself. And I am by no means fatisfied, that the bankruptcy of the principal can be pleaded by the bail. It may afford ground for the Court to give relief on motion, but I do not fee how it can be made a legal defence. Judgment for the Plaintif VAN BRAAM v. ISAACS. 1799. June 3d. If a bond and warrant of attor ney given to se are no otherwise noticed in the THIS HIS was an application calling on the Plaintiff's executor to fhew caufe why a warrant of attorney given to fecure annuity should not be delivered up to be cancelled, and the cure an annuity, judgment entered thereon be fet afide. It was moved on two objections to the memorial, viz. ft, That neither the warrant of attorney or the annuity bond was fufficiently defcribed: 2dly, That the names of the witnesses to those two inftruments deed which is were not mentioned. memorial, than by way of recital in the annuity fet out, it is not a fufficient com pliance with the 17 Geo. 3. c. 26. Court refufe to Nor can the interfere on the grant, and the The memorial fet out an indenture bearing date the 20th of Auguft 1781 between the Plaintiff and Defendant, which inden ture after reciting that the Defendant had executed a bond bearing even date with the faid indenture in the penal fum of 1000l. conditioned for the payment of an annuity of 100l. to the Plaintiff, and alfo that for the better fecuring the faid annuity 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 ftated 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 courfe of the laft term fhewed caufe. The object of the act, as appears by the preamble, was to prevent fecrecy in annuity tranfactions; and it was with that view that all the deeds were ordered to be memorialized, and all the witneffes to be mentioned. The anfwer therefore to the firft 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 fecurities, 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 another, 4 Term Rep. 500 (a). With refpect to the fecond objection, it is only neceffary that the names of all the witneffes fhould appear on the face of the memorial. The reafon is obvious; that every perfon interefted may be able to get at all the evidence relative to the tranfaction. But it appears from the bond and warrant of attorney now in court, that the witneffes to the indenture were also witneffes to (a) Vid, etiam Cousins v. Thompson, 6 Term Rep. 335. GG 2 thofe dead. 1799. VAN BRAAM บ. ISAACS. thofe inftruments. Befides, admitting the objections to be valid, the Court will not give them effect after the death of the grantee, and in a cafe where the annuity has flood eighteen years unimpeached (a). 66 Le Blanc Serjt. in fupport of the rule. The Court has never refused to interfere on account of the death of the grantee, except in cafes where the application has been made on the ground of fomething which paffed at the time of granting the annuity, and which the grantee only could contradict; as where part of the confideration-money has been retained or paid back and with respect to the length of time which has elapfed fince this annuity was granted, it is fufficient to fay 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 fufficient compliance with the act; fince mention of thofe inftruments may have been introduced with a view to take a fum of money under pretence of a charge for the deeds, and they may never have been executed. This cafe may be diftinguished 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 perfon interested given to understand that the other inftruments referred to were witneffed by the fame perfons. EYRE Ch. J. As at prefent advised I do not fee how these objections can be got over. The cafes which have been cited in fupport 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 fupport thofe cafes. 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 fcrutinizing annuity tranfactions, perhaps the better conftruction would (a) Vid. Symmonds v. Mortimer, 5 Term Rep.140. Witbyv. Woolley, 7 Term Rep.540. and Poole v. Cabanes, 8 T. R. 328. in which laft cafe the annuity having been regularly paid during the life of the person who nego tiated the annuity for the grantee,the Court refused to fet the annuity afide on a reprefentation of facts which that person only could have answered. have been to have required a pofitive allegation of the confideration actually paid. However as the confideration is always to be found in the body of the deed, it may have been reasonable to hold that a memorial of the deed fhould be a memorial of the particular parts of the deed fpecified. But how can that determination affect other inftruments which are quite dehors the deed, and on what conftruction are we to difpenfe with the memorial of any deeds, when the Statute requires a memorial of every deed? Can it be faid that a memorial of one deed which recites other deeds to have exifted 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 fuch a bond the law is satisfied? With regard to the names of the witneffes the fame difficulty occurs. If we could difpense with a diftin&t memorial of the bond and warrant of attorney, we might be satisfied without a description of the witneffes to those deeds: referring for the witneffes to the principal deed. However I should with the Court to paufe before it exercifes a fummary jurifdiction in the cafe of a grant made eighteen years ago; and in which the grantee is dead. This being an application to the general fummary jurifdiction of the Court over all warrants of attorney, I fee no reason why we fhould not expect the fame rules to be followed in this, as in other applications to our fummary jurifdiction; we require them to be made in the firft inftance, 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 fecurities to be delivered up to be cancelled. In this cafe if we act, it will be on our general jurifdiction, and not under the 17 Geo. 3. BULLER J. The queftion with refpect to the difcretion of the Court principally depends on the nature of the inftrument. In this cafe if the Court do not interpofe in the manner pointed out, I do not fee how they can interpofe at all. By the inftrument which has been given the question is concluded. And I apprehend that in all cafes 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 difcretion. HEATH J. Had this been a recent tranfaction I fhould have had no doubt. The only queftion is, whether the Court has 1799. VAN BRAAM V. ISAACS |