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action to the defendants, who replied that they had no interest in the lease.

The plaintiff allowed judgment to go by default in the action at the suit of Thurgood's executors, and paid 1581. 18. 1d. for damages and costs. On the 7th of July, 1868, the present action was commenced.

At the trial a verdict was entered for the defendants, leave being reserved to enter a verdict for the plaintiff for 757., which was agreed upon as the amount of the dilapidations which accrued during the time when the defendants were assignees of the term.

A rule was obtained and subsequently made absolute by the Court of Exchequer (1), Channell, B., and Pigott, B., holding that the plaintiff was entitled to recover; and Cleasby, B., being of the contrary opinion.

The defendants having appealed to this Court,

Risdon Bennett (with him Manisty) argued for them. The view taken by Cleasby, B., in the Court below is the correct one. There is no privity between the parties to the action here, as there was in Burnett v. Lynch (2); and in Wolveridge v. Steward (3), the other case relied on for the plaintiff, there are qualifying expressions in the judgment which materially affect its authority in governing a case like the present which does not involve suretyship. A lessee in assigning his lease may protect himself against the burden of his covenants by taking covenants from his assignee― Platt on Covenants, 493; but it cannot be said that there is any implied contract of suretyship between a lessee as surety and ultimate assignees like the defendants as principals, for he himself remains primarily liable on his covenant with his lessor.

[WILLES, J.-If two persons are bound to perform the same act, whether by the same or by separate instruments, and one of them derives the whole benefit, he must be prepared to bear the whole burden -Dering v. Earl of Winchilsea (4).]

(2) 5 B. & C. 589.

(3) 1 Cr. & M. 657, 660; s. c. 2 Law J. Rep. (N.S.) Exch. 303.

(4) 2 Bos. & P. 270.

H. T. Cole (with him C. G. Merewether), for the plaintiff.-There can be no doubt as to the defendants' liability to the original lessor-Burnett v. Lynch (2), or indeed to their immediate assignor-Wolveridge v. Steward (3); and the plaintiff has relieved them of this liability. At any rate, if they had discharged their own liability, the plaintiff would not have had to pay damages to his lessor. Neale v. Wyllie (5), and Penley v. Watts (6) also support the plaintiff's case. [He was stopped stopped in his argument.]

Bennett in reply contended that the plaintiff was not in the position of surety properly so called,-referring to the judgment in Humble v. Langston (7).

COCKBURN, C.J.-I think that the judgment of the Court of Exchequer should be affirmed. There can be no doubt that there was a breach of covenant here in respect of which the defendants were liable, at all events to the original lessor, and also to their own assignor. Now the defendants acquired by assignment the same estate which the original lessee took, and in my opinion they took the estate from the prior assignee subject to all the provisions of the lease, not merely as regards the prior assignee, i.e., their immediate assignor, but also as regards the original lessee himself. It is the same estate burthened with the same conditions and covenants as the original lessee took it with; and I think the defendants took it subject to all the liabilities which those covenants imposed not only upon their immediate assignor, but also upon the first lessee.

But there is another ground upon which the judgment of the Court below may be upheld; namely, that the premises, the subject matter of this lease, being in the possession of the defendants, they were the parties whose duty it was to perform the covenants to be performed upon and in respect of those premises, and whose immediate duty it was to keep those premises in repair. By reason of their default the plaintiff, the original lessee, became liable

(5) 3 B. & C. 533.

(6) 7 Mee. & W. 601; s. c. 10 Law J. Rep. (N.S.) Exch. 229.

(7) 10 Law J. Rep. (N.s.) Exch. 445; s.c. 7 Mee. & W. 530.


(although he had parted with the estate) [IN THE EXCHEQUER CHAMBER.) by the terms of his covenant to make

(Error from the Court of Exchequer.) good to his lessor the damage which had arisen from the default of the defendants. 1872.

DE LANCEY V. THE QUEEN. And I take it to be a general proposition, Feb. 6. S applicable to such a case as this, that, where

Legacy Duty-36 Geo. 3. c. 52. 8. 19one man is compelled to pay damages by Money bequeathed to be laid out in Land. reason of the default of another, he is en. titled to recover compensation from the A testator, who died in 1800, by his will person through whose default that damage directed a fund in Consols to be laid out in is occasioned. The reason for this rule the purchase of land, and settled in succesappears to be well stated in Mr. Leake's sion on certain persons and their issue male, excellent work on contracts (8). Whether with remainder to his own right heirs. S. it be put upon the ground of an implied becume entitled by inheritance to the fund, contract, or upon the ground of a legal and on her death E. became entitled thereto obligation, appears to me to be a matter of as heir to S. The fund never was laid indifference. The plaintiff has been com- out in the purchase of land, nor in any way pelled to pay in consequence of the default dealt with by S., or those from whom she of the defendants, who were bound to inherited it :-Held, affirming the judgment repair while they were assignees of the below, that under the 36 Geo. 3. c. 52. term. I think, under those circumstances, 8. 19, the rate of legacy duty payable by the majority of the Court of Exchequer E. was the same as would have been payable were right in holding the defendants liable on a legacy bequeathed to him by S. to make good to the plaintiff the loss occasioned by their default.

Petition of right, alleging as followsWILLES, J.-I concur upon the ground James de Lancey, who died in 1800, by that, where two parties have become

his will bequeathed a certain fund in bound, the one by contract and the other Consols to trustees upon trust to lay out by estate, to perform the same covenant,

the same and the interest thereupon in the former is entitled to indemnity against the purchase of lands, and directed the the latter to the extent of his interest,

lands to be settled to the use of his eldest although there is no immediate privity of son, Charles Stephen, for life, with recontract between them; and I think that

mainder to the first and other sons of the defendants are liable in this action Charles Stephen successively in tail male, by reason of their having had the whole and in default of issue to the testator's benefit for which the covenant was en- son, James, for life, with remainder to tered into by the plaintiff as lessee. The

the first and other sons of James succesprinciple of the decision in Dering v. Earl sively in tail male, and in default of such of Winchilsea (4) appears to me to govern

issue to the testator's own right heirs. the case.

The fund was never laid out in lands. BLACKBURN, J.-I am of the same At the testator's death, his heir-at-law opinion. I agree with the reasons given was his eldest son, Charles Stephen, who by the majority of the Court below, and received the dividends during life, and I express my entire concurrence in what died a bachelor and intestate in 1840. On fell from Channell, B.

the death of Charles Stephen, his brother MELLOR, J., BRETT, J., and GROVE, J., and heir-at-law, James, received the divi. concurred.

dends during life, and died a bachelor Judgment affirmed.

and intestate in 1857. On the death of James, his sister, Susan, was his heir-at

law, and also heir-at-law to and only Attorneys--H. D. Roberts, for appellants; Robin- lineal descendant of the testator. She son & Preston, for respondent.

refused to receive either dividends or principal, and died a spinster and intes

tate in 1866. On her death, the sap(8) At page 41.

pliant, Edward Floyd De Lancey, a grand


son of the testator's brother, became heirat-law to Susan, Charles Stephen, James, and the testator respectively. Neither Charles Stephen, James, nor Susan did any act which had the effect of an election to take the fund as money or as land, or of constituting any of them a new root of descent with regard to the fund. The Court of Chancery, in administering the fund, directed that the principal and the dividends accrued since Susan's death be transferred (subject to duty) to the suppliant. The Commissioners of Inland Revenue assessed the suppliant to pay 6471. 12s. 6d., being succession duty at 5 per cent., which the suppliant paid under protest. The Court of Exchequer held the assessment void, on the ground that the duty payable was legacy, not succession duty (1); and that decision was confirmed on appeal by the Exchequer Chamber (2).

The Commissioners made no further assessment, but refused to return to the suppliant the 647. 12s. 6d. The suppliant now claimed a return of that sum, or the balance after deducting duty at 2 per cent., admitting that he was liable to pay legacy duty at 24 per cent.

Plea-that the duty payable was at the rate of 5 per cent., being the duty payable as on a legacy coming to the suppliant from Susan, and that the Commissioners retained the 6477. 12s. 6d. in satisfaction thereof; that that sum was paid by the Court of Chancery to the Commissioners, as the duty payable by the suppliant, but without adjudication by that Court as to the rate.

Demurrer to the plea, and joinder therein. The Court of Exchequer gave judgment for the Crown (3), and the suppliant brought error thereon.

Sir J. Karslake (Townsend with him), for the suppliant.-The rate of legacy duty depends on the construction of the words, " 'by virtue of any bequest thereof as such, in the proviso in 36 Geo. 3. c. 52. s. 19 (4). If those words mean


(1) 38 Law J. Rep. (N.S.) Exch 193. (2) 39 Law J. Rep. (N.s.) Exch. 76.

(3) 40 Law J. Rep. (N.S.) Exch. 198.

(4) 36 Geo. 3. c. 52. s. 19: "That any sum of NEW SERIES, 41.-EXCHEQ.

that the duty is the same as it would be on a bequest from Susan, who died after 1805, the rate is 5 per cent.; but if as on a bequest from the testator, who died in 1800, then 2 per cent. (5). The proviso, we contend, means that the person who becomes entitled to an estate of inheritance in possession in the real estate to be purchased with the money, that is, the suppliant, shall pay the same duty as he would pay if he became entitled to the money as money by virtue of a bequest from the testator. No other testator, and no other will or bequest, is contemplated by the clause, and its sole purport and application is to the will which directs money to be laid out in real estate.

money or personal estate directed to be applied in the purchase of real estate, shall be charged with and pay duty as personal estate, unless the same shall be so given as to be enjoyed by different persons in succession, and then each person entitled thereto in succession shall pay duty for the same in the same manner as if the same had not been directed to be applied in the purchase of real estate before such duty accrued; but no duty shall accrue in respect thereof after the same shall have been actually applied in the purchase of real estate for so much thereof as shall have been so applied; provided, nevertheless, that in case before the same, or some part thereof, shall be actually so applied, any person or persons shall become entitled to an estate of inheritance in possession in the real estate to be purchased therewith, or with so much thereof as shall not have been applied in the purchase of real estate, the same duty which ought to be paid by such person or persons, if absolutely entitled thereto as personal estate by virtue of any bequest thereof as such, shall be charged on such person or persons, and raised and paid out of the fund remaining to be applied in such purchase."

(5) The effect of 55 Geo. 3. c. 184. sch. p. 3. ss. 1 & 2, is that duty at 24 per cent. would be payable on a legacy bequeathed by the testator, who died in 1800, to the suppliant, the grandson of the testator's brother, and at 5 per cent. on a legacy bequeathed by Susan who died after 1805, to the suppliant, the grandson of the brother of Susan's father.


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[BLACKBURN, J.-You read the statute that will, would not have had that as if it were “money directed to be applied character. by will.Would not the clause equally He takes from the person last seised as affect a settlement by deed? And if so, her heir. Where in such a case a person " any bequest ” could only mean “any takes money directed to be laid out in imaginary bequest."]

real estate, but not so in fact laid out, the The testator was the last purchaser. legislature meant that that person should Neither Charles, James, nor Susan, be taxed as if he had taken the property having done anything to alter its charac. by bequest from a person who could have ter, the property came under the will as bequeathed it to him, and as if it had money-land to the suppliant, who took it been personalty. Susan was that person not as Susan's personal representative, who could have bequeathed it to the supbut as heir to the testator, and in no pliant, and she must be considered as other capacity. If Charles, James, or having made an imaginary bequest Susan, had elected to take it as money,

him, or if Susan had bequeathed it, the sup- In other words, the statute may be read pliant would not have been entitled un- as Grove, J., has suggested, thus: “Any less he were legatee. It is therefore by person who shall become entitled to an virtue of the will alone that he takes; the estate of inheritance in possession in real trusts of the will still operate; but for estate to be purchased with money di. those trusts, and the rule of equity which rected to be so applied, shall pay the same regards as land money bequeathed to be duty which ought to be paid by him if laid out in land, the property would have entitled thereto as personal estate by gone elsewhere than to the suppliant. The bequest.” Exchequer Chamber held that Susan took Willes, J.; BLACKBURN, J.; MELLOR, J.; by virtue of the will, though not named BRETT, J.; and GROVE, J., concurred. therein ; then why not also the suppliant?

Judgment affirmed. The point taken as to the set-off in the Court below is not insisted on here.

The Solicitor General (Sir G. Jessel), (C. IIutton with him), was not heard.

Attorneys—Townsend, Lee, & Houseman, for the

suppliant; Solicitor of Inland Rerenue, for the Cockburn, C.J.-I think the true con- Crown. struction of this section is that put on it by the Court of Exchequer. The intention of the legislature seems very plain, and the proviso in question seems almost to have contemplated this

very case. The testator leaves money to be laid out in land, and creates estates tail, and [IN THE EXCHEQUER CHAMBER.) failing these, gives the remainder to his

(Error from the Court of Exchequer.) own right heirs. The two sons, tenants in tail, die without leaving issue, and the 1872. 1 absolute interest in the property goes to Feb. 6. S Susan. Now the suppliant is heir-at-law

Bankruptcy Act, 1869, ss. 11, 12, 13, 15, of Susan, and when the property reached

95, sub-sec. 3—Execution under 501.-Seiher, the devise under the testator's will had already been exhausted, and the

zure by Sheriff Sale after Alljudication

Creditor holding a Security. property was in her absolutely, in the character of a fee simple. The suppli- Section 184 of the repealed Bankrupt ant cannot be said to take under the Law Consolidation Act, 1819, is not retestator's will, though he takes by virtue enacted directly or indirectly in the Bankof that will in this sense ; that he takes ruptcy Act, 1869. Therefore under the because that will has stamped the charac- laiter Act, when the sheriff' has, under an tur of land on a property whic!), but for execution for less than 501., seized a debtor's



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general manager of a bank without the knowledge or authority of the bank directors, concerted for their own purposes the following scheme, which the Court held to be entirely void for fraud, and not binding on B. Two accounts were opened with the bank in the respective names of the agent and the principal. The agent, on behalf of his principal, requested the bank to honour the agent's cheques, and guaranteed the repayment thereof, all moneys standing to the credit of the principal to be charged with such repayment. The agent paid to his principal's account 1,500l. belonging to the principal, and drew on his own account for a like sum, which he spent in promoting the scheme. He drew other cheques on his own account, and paid the proceeds to his principal's account as moneys belonging to the principal. Thus in the bank books the agent's account stood with a large debit, and the principal's account stood with an equal credit charged with the guarantie. The principal having brought an action against the bank to recover the whole amount standing to his credit :-Held, that he could recover 1,5001. thereof, his own money; but not the residue, which never had been his money.

This was an action brought by the official liquidator of the plaintiff company by order of the Court of Chancery, dated the 7th April, 1869, in the name of the company against the defendants, to recover the sum of 25,0451. 6s., principal and interest, received by the defendants for the use of the plaintiff's between the 23rd June and 12th September, 1867.

The defendants paid 6007. into Court, and pleaded as to the residue never indebted, payment, and a set-off of the sum of 24,5061. 8s. 4d. and interest for moneys paid at the plaintiffs' request, of which the plaintiffs guaranteed the repayment.

Issue having been joined on the pleas, an arbitrator by consent stated a special case for the opinion of the Court, who were to draw inferences of fact as a jury. The question for the Court was whether the plaintiffs could recover any and what part of the sum claimed in addition to the 6001.

The facts are sufficiently stated in the judgment and notes.

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