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Elizabeth Bogan, his then wife, the now defendant, for and in ... name and in lieu of her jointure: with proviso, that if ElizaWOOLSTON.
beth should not within three months after widowhood release her dower, the settlement should be void, and a covenant, that the children and all persons entitled should quietly enjoy according to the limitations of the devise. In 1738, James Woolston, by another deed, released this condition of giving up her dower. In 1751, James Woolston, by another deed, reciting the former, and that he had since received 6001. additional fortune, therefore, for increase of her jointure, he appoints in the same form all the rest of the land, in trust for her during life from and after his decease. James died sans issue male, and the remainder came to John, the son of John, who brought this action (£). The question was, whether this additional jointure in 1751, was a good execution of the power; it being contended on the part of the plaintiff, that the power was completely executed in 1712.
Lord MANSFIELD, C. J.—This is so clear a case, it is a pity the old lady, the defendant, should be disturbed or agitated any more.
There are two points.--1. What is the natural construction of this power? 2. Whether the deed of 1712 has barred and precluded all subsequent executions of the same power?
1st. On its creation there was nothing to bound it but the
will and discretion of the husband. Being a trust estate, [ * 282 ] *there was no occasion to express, that any settlement by
virtue of this power should be in bar of the woman's dower. The devise is drawn, as if intended that the power should be executed at different times. “By deed or deeds, from time to “ time,"—it is said, this was meant to take in the case of subsequent marriages; the words “wife or wives". would alone be sufficient to answer that. For common sense would shew, that one wife must be dead, before there could be any new appointment to another. The former words are therefore nugatory, unless thus interpreted. Case of Harvey and Harvey(1), in Chancery, was, where a power was given to appoint not exceeding 6001. per annum for a jointure: one specific, entire thing. The question was, if this power could be executed partly at one time, partly at another. Lord Chancellor thought it clear, that it might be. On a rehearing, Mr. Wilbraham gave up the point. The present case, not being for a jointure, is so much stronger, that if Harvey and Harvey had been otherwise determined, I think this appointment would be good.
2dly, It is doubted, whether the settlement of 1712, has not barred or exhausted all James's power: and it is objected, that this is in lieu of jointure, and must therefore be looked on as one entire thing; and that there is also a covenant, that the children and all other persons entitled should enjoy according to the limitations of the will. As to the covenant, this amounts to no
more than, that the testator had power to devise, and that enjoyment shall be accordingly. If Elizabeth, the mother of these children, had died, and James had married again, there is no colour, but that he might have limited the whole estate to a second wife, their step-mother. Would the friends of Elizabeth have tied up his hands as to her, and left him at liberty, as to any future wife? Thus the case would have stood, had there been issue male of the marriage: a fortiori it will stand so, now the question is with the son of John, the remainderman. As to its being in lieu of jointure-In Harvey and Harvey; the first estate created was“ in full for her jointure, “ and in full recompense of her dower.” This was argued, with some plausibility, to be a full execution of the power. Lord Chancellor thought there was no weight in it. The husband had his election to bar her claim, if he pleased : this did not extend to bar his own subsequent power. Lord Chancellor went further, and said, the plaintiff being a remain*der man, it could not be in contemplation of the parties, that *283 1 the power should be construed strictly in his favour. In the present case, it was not only in the power of the husband, but was also his duty, to make a farther provision for his wife, as he had received an additional fortune. It also appears, that he left daughters, and ten grandchildren by one of them.
Upon this head of execution of powers, for want of a liberal way of thinking, and of making proper distinctions, some of the early cases have been decided so extremely strictly in Courts of law, that it has forced Courts of equity to make those determinations, which ought to have been made, in the legal jurisdiction. It is true, naked powers (m) must be taken strictly, Naked powers both in Courts of law and in equity. Other powers, which are to be construed a mode of property, are either merely legal, independent of the statute of uses; as powers of leasing by ecclesiastical persons, with property, if by tenant in tail, by the Crown, &c.; here what is a void exe- merely legal, cution in law, is void in equity also :-or, they are derived from
ly strict in the statute of uses. And what is a good execution of such a equity as at. power in equity, ought to be good in law; the whole being de- law. rived from equity (n). Rattle and Popham, Stra. 992; case of 2
statute of uses, doing less than the power. Husband appointed a chattel estate to be construed determinable on the wife's life, instead of a freehold for life ab- as liberally at solute: Determined at law to be void. They went into equity: law as Lord Talbot held it good, upon the face of it, and made the remainder-man pay the costs, both in law and equity. Upon the whole, I think the power well executed.
DENNISON, J., same opinion. Foster, J., absent.
WILMOT, J.—These powers are so necessary for forwarding marriages, that Courts of law and equity should go by the same rule in their construction. And I think we should not listen to those nice distinctions, which savor more of the sophistry of
head od of makined so equity to in the della
de tarte: Deter held it ne costs, but executed.j., absentforwardinge
Lord Ter-man pay. the power well FOSTER, J., cap for forwar
the schools, than the manly reasoning which ought to prevail in Courts of law. It is to be lamented, that at the making of the statute of uses, Courts of law did not adopt the same rules in construing powers as Courts of equity did. This case needs
not the assistance of this doctrine. It is the established prac] tice in conveyancing, when it is intended * that a power should be executed no farther, to release it. Therefore this deed of 1712 cannot be supposed tantamount to a covenant not to execute it any farther. Enjoyment according to the limitations of the will must mean,“ subject to the power given by the will."
Judgment for the defendant(o).
(0) This case was recognised in Doe v. Milborne, 2 T. R. 721. See Sugd. Pow.
66, 279, 345 (3d ed.).
ecuted ond a warrh, January administes
STEVENS 0. Evans and LLOYD and Others.
S. C. 2 Burr. 1155. Administrator TROVER. Not guilty. Special case, 12th of April, 1759. not liable to pay v poor's rate, for Vesey was assessed to poor's rate in the parish of Wix in Esthe intestate; at sex; 18th July, 1759, he died; 12th December, administraleast not dis. tion granted to Stevens the plaintiff; 14th January, 1760, detrainable with
fendants Evans and Lloyd granted a warrant of distress, which the other defendants executed on Stevens for this rate, and distrained his cattle.
Norton, for the plaintiff. I. The rate is bad ab initio; being, 1st, To reimburse overseers; see Thornhills Case, Lord Raym (p). 2dly, It is made for half a year; Salk. 532 (9). 3dly, No demand is stated before the distress made; no refusal by the administrator, but only by the deceased and his widow. II. The goods of the intestate are not liable to this distress in the hands of administrators. No instance where done; therefore strong presumption that it cannot be done. In short [as to] rates (which alone are allowed by law) it is an object too minute to follow the personal assets. This is a charge on the person, not the thing, like land-tax. No power to make such distress expressly given by law;-it cannot be inferred, for a power under a statute must be strictly pursued. A new power cannot be usurped by this inferior jurisdiction. This is no debt on the effects. If so, in what class shall it be ranked? How, in case of deficient assets, can an executor pay it without hazard. In a similar case, which was remediless at law, Parliament was forced to interpose. Till stat. 17 Geo. 2 (r), the administrator of an overseer was not liable to account to his successor. This is a legislative exposition of stat. 43 Eliz. and shews, that when the powers of that act are defective, Parliament only can amend them.
*Bishop, for defendant.--[I] shall not enter into the previous STEVENS objections. The main question intended to be settled, is of great and general importance. It must for ever arise, unless where a man dies the night before a rate is made. By sect. 4, of stat. 43 Eliz. [c. 2,] it is sufficiently implied, that assets are liable.
DENNISON, J., (absente Lord Mansfield).—The question intended to be brought before the Court is stated, and is only the latter one, concerning the levy of the rate on executors or administrators. Strange, that it never was brought before the Court before. As to myself, whatever the practice may be in the country, I take it, that if a person is rated under stat. 43 Eliz., wherein a particular method is prescribed to recover that rate, you cannot make use of any other. No action of debt will lie for a poor's rate. Consider the nature of the remedy given by the act of Parliament. You are to distrain by warrant. What? The goods of the offender. This shews, Ist, That non-payment is an offence, not a debt: 2dly, What the goods are, which are so distrainable, viz. those of the offender. Well— What authority have we, by law, over the goods of the representatives? None at all. We can't consider inconveniences that may be suggested; but the mere words of the law which gives the remedy. As at pretent advised, I think the action will lie.
FOSTER, J., absent.
WILMOT, J.-I have not the least doubt imaginable. Though it is not stated in the case, that a demand (s) was made of the administrator; yet it is stated in the warrant. But no summons appears to have issued; and I think it was necessary to convene the administrator before the justice, before a warrant could legally issue to distrain. Had a warrant issued regularly before the death of Vesey, it migh: have been doubtful, whether necessary to convene the representative. Similar to a fieri facias, which may be executed after the death, if issued before; whereas, otherwise, a scire facias must issue. But this warrant is the first that issued. *As to the principal question, [*286 ] as at present advised, I doubt, whether the charge absolutely dies with the person. The point was never solemnly determined. But in Wallis, Administrator, v. Hewit, Sittings post Hil. 5 Geo. 2, coram Eyre, C. J., the same question came on. There was not only a demand against the intestate, but also a warrant of distress, issued before his death. Eyre, C. J., at Nisi prius, thought, that a levy could not be made on the goods in the administrator's hands, without summoning him to shew cause. A case was made, but I can't learn, that it was ever argued in the Common Pleas. However, in the present case, it is contrary to all reason, even supposing it a debt, that the administrator should be charged to pay it without summons. He may have a judgment debt of his own, which will cover the
(s) See Hurrell v. Wink, 2 B. Mo. 417, 8 Taunt. 369, and Milward v. Caffin, post, 1330.
whole of the assets. Shall he be stripped of it, without even hearing what he has to say (t)?
Postea delivered to the plaintiff.
(1) I have not been able to meet with P. L. 221 (ed. 1814), and 4 Burn's Just. any other case on this point, which there- 116 (ed. 1820). fore remains undecided. See 1 Nolan's.
King v. WALKER. Statute of limit- AsSUMPSIT. Plea, non assumpsit infra sex annos. Repliations extends
cation, that the plaintiff was resident in foreign parts out of the
otion that thinnaintia to persons in Scotland.
kingdom of England, viz. at Glasgow in Scotland; and therefore could not bring his action sooner. Demurrer, and joinder in demurrer.
Morton, for the defendant, observed, that the exception in the statute of limitations, 21 Jac. 1, c. 16, in favour of absent plaintiffs, says expressly, that they must be persons beyond the seas.—That, till the Union of the Crowns under Jac. 1, the constant language of the Legislature was, persons out of the realm. It was altered on that occasion, when the whole island came under the government of one Prince; and the reason holds stronger now, when not only the Crowns, but also the kingdoms are united.
Wedderburn, for the plaintiff.—The question is, Whether
persons out of the jurisdiction of the Courts of this country, *287 1 *though not literally beyond the seas, or out of the King's
subjection, are not entitled to the same benefit. The statute of non-claim does not affect persons in Scotland. In Sir Robert Brooke's reading on stat. 32 Hen. 8, wherever the statute says, out of the realm, he uses in his comment the expression, beyond the seas. This and many other instances shew, that these expressions have usually (though inaccurately) been used as synonymous terms. It has been questioned, whether Scots bills of exchange are inland or foreign bills, and been determined by Ryder, Chief Justice at Guildhall, that they were foreign bills (v).
DENNISON, J. (absente Lord Mansfield).-This is a new experiment, and in the case of a positive law. The statutes 21 Jac. 1, and 4 & 5 Anne(u), are both express, that the party to be excused must be beyond the seas. Here the plaintiff pleads, that he was in foreign parts, viz. in Scotland. What does he mean by foreign parts? He must be beyond the seas. That is the old and true expression. Before the Union, England was an island of itself; since the Union, Scotland is made a part of it.
FOSTER, J., absent.
WILMOT, J.-This is a very clear case. The statute of limitations ought to be construed liberally. I think it a noble