(D) Statutes respecting personal Annuities. (Setting aside.) [§ 4 enacts, "That if any part of the consideration shall be returned to the person advancing the same, or in case the consideration or any part of it is paid in notes, if any of the notes with the privity and consent of the person advancing the same, shall not be paid when due, or shall be cancelled and destroyed without being first paid, or if the consideration or any part of it is paid in goods, or if any part of the consideration is retained on pretence of answering the future payments of the annuity, or any other pretence; in all and every of the aforesaid cases it shall and may be lawful for the person (b) by whom the annuity or rent-charge is made payable, to apply to the court in which any action (c) is brought for payment of the annuity on judgment entered, by motion, to stay proceedings on the judgment or action; and if it shall appear to the court that such practices as aforesaid, or any of them, have been used, it shall and may be lawful for the court to order the deed, bond, &c., to be cancelled, and the judgment, if any has been entered, to be vacated." (b) But this relates only to the particular provisions of this section. On a defect in the memorial, any person may apply to the court. Saunders v. Hardinge, 5 Terin R. 9. (c) The entering up judgment, or even giving a warrant of attorney to enter up judgment in any court, is sufficient to give that court this summary jurisdiction. Haynes v. Hare, 1 H. Black. 659; Ex parte Chester, 4 Term R. 694.] || This section is held not imperative on the court, as the words (unlike those in the three preceding sections) are, "it may be lawful for the court to order the deeds to be cancelled," &c.; it is discretionary in the court, either to vacate the securities in case of a violation of the section, or to do so on particular terms, or to refuse to do so, according to the circumstances of the case; and so also as to the sixth section of the 53 G. 3, c. 141, which is a transcript of the above clause. The words of the sections import on the face of them to refer to cases where improper practices exist, and they give the court a discretionary power to examine whether unfair advantage has or has not been taken of the grantor. Girdlestone v. Allan, 1 Barn. & C. 61; 2 Dow. & R. 150; and see 1 Taunt. 372. Therefore, where part of the consideration-money had been deposited in the hands of the grantee's attorney till certain houses, out of which the annuity was granted, should be completed, but it appeared that the money deposited had all been paid over to the grantee in a short time after the date of the deeds, and there was no fraud in the transaction, the court refused to set aside the annuity; since this was not a fraudulent retainer contemplated by the act. Barber v. Gamsom, 4 Barn. & A. 281. So where A, an attorney, purchased an annuity of B, and having paid the consideration-money, received from B the amount of a bill for business done, including by mistake a charge for searches for incumbrances, which search had never been made, it was held that the payment of this charge, so inadvertently made, was not a return of the consideration-money within the meaning of the fourth section of 17 G. 3, c. 26. Hurd v. Girdlestone, 6 Taunt. 8; 1 Marsh. 407; and see 5 Term R. 597. And where the attorney of the grantor, at the time of payment of the purchase-money, takes and keeps an unreasonable part of it for the (D) Statutes respecting personal Annuities. (Setting aside.) expenses of the deed, this is not a ground on which the court will set aside the annuity; the attorney having no connection with the grantee. Mootham v. How, 7 Taunt. 596. But where the agent of the grantee retained a considerable sum for expenses of preparing the deeds, and a further sum by way of advance to answer the first year's payment of the annuity, the Court of Common Pleas set aside the deeds against a surety for the annuity, on the ground that this was an illegal retainer. And they did the like in another case, although the grantee alleged he had given no authority for, and was ignorant of, the retainer. Mence v. Hammond, 6 Moo. 491; Williamson v. Goold, 1 Bing. 234; 8 Moo. 109; and see 1 Bing. 287; 8 Moo. 302; 2 Bing. 370. So also, where 9107., the consideration-money, was paid to the grantor, who immediately returned it, except 17., to pay off preceding annuities, and 1607., which the attorney who negotiated the bargain retained for his trouble, the court set aside the annuity. Henry v. Taylor, 3 Bing. 177; and see Finley v. Gardner, 6 Barn. & C. 165; Jones v. Silberschildt, 4 Bing. 26. Where the grantor of an annuity had on a mistaken claim of the grantee paid a half-yearly instalment for half a year sooner than the deed required, it was held not to avoid the annuity. Jackson v. Ld. Milsington, 6 Taunt. 189. 17 G. 3, c. 66, § 5, enacts, that a particular roll shall be kept by the clerk of the enrolments in Chancery, and that every memorial shall be enrolled in order of time, as it shall be brought in; and the day, hour, and time of bringing the memorials into the office are to be specified on the roll. It also appoints the fees of the clerks. § 6 enacts that all contracts for the purchase of annuities from infants shall be void, and incapable of confirmation after the infants shall come of age and makes the procuring or soliciting an infant to grant any life-annuity, or to promise, or otherwise engage to ratify it when he comes of age, an indictable misdemeanor, punishable with fine and imprisonment: as does § 7, the asking, demanding, or taking by any solicitor or other person of more than 10s. per cent. for procuring money to be advanced on any life-annuity. By the act 53 G. 3, c. 141, we have seen that the statute 17 G. 3, c. 26, is repealed, except as to annuities granted previous to the passing of the act; but the principal provisions of the former act are in substance re-enacted by the latter, with some additional regulations. By § 2, the time for enrolment is enlarged to thirty days, and a form of memorial is given. By § 3, it is provided, that if any such annuity shall be granted to or for the benefit of any company exceeding ten persons, for the purpose of granting or purchasing annuities, it shall be sufficient to describe them by their usual firm or name of trade. § 4 enacts, that where the person to whom the annuity is granted shall not be entitled thereto beneficially, the name of the person intended to take it beneficially shall be described in the enrolment, otherwise the deed or instrument shall be null and void. (For § 5, see antè, p. 281.) §6 is to the same effect as § 4 of the former act. (Antè, p. 287.) (D) Statutes respecting personal Annuities. (Setting aside.) [Where the securities are made absolutely void by the statute, a stranger may take advantage of any irregularity; and therefore where a fieri facias issued against a person in possession of goods under a deed given inter alia in consideration of an annuity, it was holden that the sheriff, having notice that the annuity was not registered, was justified in returning nulla bonâ. Crossley v. Arkwright, 2 Term R. 603; and see 5 Term R. 9. And where the contract is avoided merely for irregularity, the consideration-money may be recovered back from the grantor; whether such consideration be wholly in money, or for a debt antecedently due for goods sold. But qu. as to goods sold at the time of granting the annuity? Shove v. Webb, 1 Term R. 732.] If the grantor has communicated to the grantee that there are defects in the memorial, and has treated for a compromise on the ground of the annuity being void, the grantee may maintain an action for money had and received, although the grantee neither demands payment of the arrears, nor tenders new securities, nor delivers up the old ones before he sues. Waters v. Mansell, 3 Taunt. 56. And where the grantor sets aside the securities, the grantee may recover back the consideration-money, as money had and received, although a bond was given for securing the annuity, which is not set aside; he is not obliged to sue on the bond. Scurfield v. Gowland, 6 East, 241. When the grantee of an annuity set aside for a defective registry brings an action for money had and received to recover back the consideration, the grantor may set off the payments in respect of such annuity, though for more than six years, unless the plaintiff reply the statute of limitations. Hicks v. Hicks, 3 East, 16; 4 Esp. 196; and see 1 Taunt. 520. Where the grantee has regularly received the annuity during his life, his executor cannot sue for the consideration-money, on the ground that no memorial was enrolled; as the contract was not thereby void, but only voidable. Davis v. Bryan, 6 Barn. & C. 651.|| [An action for money had and received for this purpose cannot be maintained against a surety who has in fact never received any part of the consideration, though he join with the principal in signing a receipt for it. Stratton v. Rastall, 2 Term R. 366, per Buller and Groce, J., contrà Ashurst, J.] Where upon the grant of an annuity the agent who negotiated it, as between the grantor and grantee, was appointed trustee and receiver of the rents of the estate of the grantor on which it was charged, and afterwards advanced money to the grantee out of his own funds, in anticipation of such rents, and debited the grantee with the usual commission charged by him on annuity payments; it was held, that on the eventual VOL. I.-37 2 B (E) Miscellaneous Cases. failure of the securities and insolvency of the grantor, the agent could not treat such an advance as a mere loan, but that it must be taken as a payment made to the grantee in liquidation of the arrears of the annuity, and that the latter could only issue execution for the arrears actually due, after deducting the sum advanced and received by him from such agent. Carroll v. Goold, 1 Bing. 171; 7 Moo. 621; and see 1 Bing. 274, 316. A party outlawed in K. B. in an action to recover the arrears of an annuity, cannot be heard in C. P. to move to set aside the annuity. Loukes v. Holbeach, 4 Bing. 419.|| [As to the extent of the summary jurisdiction of the common law courts in questions on this act, see 2 Ves. jun. 154; 4 Bro. Chan. R. 310.] (E) Miscellaneous Cases. 1. When the Annuity is to commence. An annuity given without particular instructions is payable at the end of the year. But an annuity bequeathed to a wife, payable "annually, or in any other way she may wish," was ordered to be paid quarterly. (a) An annuity was bequeathed to be paid on the first of March, in every year; the testator died on the first of September; the annuity was apportioned, and was directed to be paid, pro rata, on the first of March following the testator's death. (b) (a) Hall v. Hall, 2 M'Cord, Ch. R. 281. (b) Waring v. Purcell, 1 Hill, Ch. R. 199; see 1 Sim. & Stu. 390; Ex parte Rutledge, Harp. Eq. R. 65; 1 Paige, 331. 2. When the Annuity is to determine. Testator bequeathed to his wife an annuity "during her widowhood and life:" on her marriage the legacy ceased, according to testator's intention, but this being in terrorem, and against the policy of the law in restraint of marriage, it was held, she was entitled to the annuity during her life. (c) An annuity charged on real estate, one-half of that estate descends to the annuitant, held, that the one-half of the annuity is merged by the descent cast. (d) When an annuity is secured by bond, the death of the annuitant before the day of payment defeats the annuity. (e) (c) Parsons v. Winslow, 6 Mass. 169. (d) Jenkins v. Van Schaiek, 3 Paige, 342. (e) Manning v. Randolph, 1 South. 144. 3. How principal to be secured. On a bequest of an annuity to one for life, the executor is required to retain so much of the principal, as, at the rate of six per centum, it will produce the sum, and to give security for restoring it to the general legatees on the death of the annuitant.(a) (a) Love v. Love, 3 Hayw. 14. See Saunderson v. Stearns, 6 Mass. 37; note to Ex parte James, 5 Ves. 708; 1 Hovend. Supp. to Ves. jun. 431; note to Franks v. Cooper, 4 Ves. 763; 1 Hovend. Supp. to Ves. jun. 368; Davies v. Wattier, 1 Sim. & Stu. 463.g 291 APPEAL. AN appeal is the party's private action, seeking revenge for the injury done him, and at the same time prosecuting for the crown, in respect of the offence against the public. [It is derived from the French, "appeller," the verb active, which signifies to call upon, summon, or challenge one; and not the verb neuter, which signifies the same as the ordinary sense of "appeal" in English. 4 Black. Com. 312.] {See 3 Wils. Works, 142.} Though this be a legal suit, and therefore to be carried on in a reasonable way, yet as none of the statutes of amendment or jeofail extend to it, the utmost exactness is required in the proceedings, especially where the life of a man is brought into danger; but as the nice distinctions made and allowed of in the several kinds of appeals, are accurately treated of by Mr. Serjeant Hawkins, it may be sufficient to set down here what seems to have been most materially said by him relating to appeals under the following heads. 2 Hawk. P. C. 232. By the 59 G. 3, c. 46, reciting that appeals of murder, treason, felony, and other offences, and the mode of proceeding thereon, have been found to be oppressive, and the trial by battle is a mode of trial unfit to be used; it is enacted, that after the passing of the act, all appeals of treason, murder, felony, or other offences, shall cease, determine, and become void; and that it shall not be lawful for any person or persons, at any time after the passing of the act, to commence, take, or sue any appeal of treason, murder, felony, &c., but that all such appeals shall be utterly abolished; and it is further enacted, that after the passing the act, in any writ of right then depending or thereafter to be instituted, the tenant shall not be received to wage battle, nor issue be joined or trial had by battle, in any writ of right. This wholesome statute was passed in consequence of the case of Ashford v. Thornton, 1 Barn. & Ald. 405, where this proceeding was resorted to. See the proceedings stated at length in the report.]] (A) of the different Kinds of Appeals: And herein, 1. Of an Appeal of Death. 2. Of Appeals of Larceny. 3. Of an Appeal of Rape. 4. Of an Appeal of Mayhem. (B) In what Courts an Appeal may be brought. (C) Who may bring an Appeal. (D) Within what Time an Appeal must be brought. (E) In what County an Appeal must be tried. (F) How the Appellant is to appeal and prosecute. (G) The Form of the Writ, and for what Faults it may be abated. (H) The Form of the Declaration. (I) What may be pleaded in Bar to an Appeal. (K) How the Appellant is to be punished for a false Appeal. |