days therein mentioned: which rent William Watts for himself, his heirs, and assigns, covenanted to pay to the plaintiffs, their heirs and assigns, on the days and times mentioned in the deed. And by the deed a rent charge of 147. is in like manner reserved to Russ, who was seised of the other undivided third part. And there are powers ofdistress and re-entry for non-payment. By indentures of lease and release, dated respectively the 25th and 26th of September, 1792, the release being made between the said William Watts of the first part, James Shoopholme of the second part, the said Thomas Coates of the third part, the defendant's testator, John Wadham, and one Thomas Stevens, of the fourth part, and Joseph Powell, a trustee to bar dower, of the fifth part, and other persons whom it is not necessary to state; for certain considerations therein mentioned the said Coates, by the direction of Watts, did, according to his estate and *interest, bargain, sell, and release, and the said Watts did grant, bargain, sell, and release, ratify, and confirm, and also limit, direct, and appoint, unto the said Wadham the testator, Stevens, and Powell, and to their heirs and assigns for ever, the said messuage and land to hold to them in fee as tenants in common: subject nevertheless to the payment of the said yearly fee-farm rents of 421. and to the performance of the covenants in the indenture of the 23rd and 24th of June, 1791, on the part and behalf of the said William Watts, his heirs and assigns, to be observed and performed. And the said Wadham and Stevens did, by the said indenture of 1792, covenant with William Watts, his heirs and assigns, in equal shares and proportions, to pay the fee farm rents of 42l., and perform, fulfil, and keep all and every the covenants, clauses, provisoes, and agreements, contained in the said indenture of 1791, which by Watts, his heirs and assigns, ought to be performed or fulfilled; and to keep the said Watts, his heirs, executors, and administrators, indemnified and saved harmless from all damages on account of the same rent and covenants. Wadham, the testator, afterwards made his will, by which he made the defendant his sole devisee and executor, and died without revoking it. The defendant proved the will; and afterwards one moiety of the said rent of 281., for three years, amounting to 421., became due to the plaintiffs, to recover which the present actions, one against the defendant charging him as assignee, and the other against him in his character of executor to Wadham the testator, were brought; and they were referred to Mr. Puller, who by his award, dated the 31st of May, 1802,

R.R.-VOL. LIII.

10

ROACH

v.

WADHAM.

[ *304 ]

ROACH ተ.

WADHAM.

[305]

[ *306 ]

determined that the defendant was not liable in either of the actions; John Wadham the elder being in his opinion, as appointee of the estate of Wm. Watts, *not liable in law upon the covenants made by the said Wm. Watts. Mr. Puller, having stated the indentures of 1791 and 1792 at large in his award, has given the plaintiffs an opportunity of taking the opinion of the Court upon the propriety of his decision, by a motion to set his award aside. It was admitted by the counsel for the defendant that the conveyance to Watts vested in him an estate in fee simple, liable to be devested by an exercise of the power of appointment, (and which he contended had been done;) and though the plaintiffs' counsel at first insisted that the power was nugatory, and that the conveyance necessarily operated on the interest of Watts; yet he afterwards abandoned. that ground in his reply, and agreed that the only point was, whether the conveyance operated on the interest which Watts had, or as an execution of the power; and that it was a question of mere intention. And if that be so, it ought to appear very clearly that the covenants and provisions in the deeds cannot take effect, if the conveyance should be holden to operate as an appointment, in order to authorize the Court so to determine, where the instrument in its terms professes to make an appointment, and where Coates, the trustee, joins in the conveyance, and by the direction of Watts bargains, sells, and releases to Wadham. Had it been the intention of the parties that the estate which Wadham was to take should be derived out of the interest which Watts had, it would have been wholly unnecessary that Coates should have been a party to the deed his being made a party to it shows that something was to be taken by way of appointment; and if any thing, there is nothing from whence there can be collected an intention that less. than the whole should pass by those means: the reason for which is obvious; as it might prevent such objections to the title as might be made if it were derived immediately from Watts. The covenants in the deed of 1792 do not appear to us at all to militate with this construction; for had it been the intention of the parties that Wadham should take as the assignee of Watts, such covenant on the part of Wadham would have been less necessary than if he were intended to take as appointee: for in the former case Watts would have had some security that he would not be called upon to pay this rent, arising from the circumstance of Wadham's being liable to be sued by Roach. But, whether the conveyance were intended to operate in the one way or the other, these covenants

were fit and proper for the security of Watts; for if Wadham were the assignee and liable to be sued in covenant, Roach, if Wadham did not pay the rent, might sue Watts on his covenant to pay it; and in that case Wadham's covenant was proper for Watts' indemnity: and, if Wadham were not liable to be sued by Roach, and it was nevertheless the intention of the parties that Wadham should pay the rent, a covenant from him to Watts to pay such rent and to indemnify Watts therefrom became the more necessary. The making Watts join in the lease and release of 25th and 26th September, 1792, as a party conveying, proceeded, as we conceive, only from the common caution of conveyancers, who, where a man has a power of appointment over land as well as an interest in it, make him both appoint and convey, in order that if there should be any defect in the creation, continuance, or execution of the power, the conveyance may operate upon his estate and interest. For these reasons we are of opinion that the award of Mr. Puller is right, and that the rule for setting it aside must be discharged. Rule discharged.

TOOVEY, ASSIGNEE OF MAXTON, v. MILNE (1).

(2 Barn. & Ald. 683-684.)

Act of bankruptcy by lying two months in prison. During the imprisonment A. advanced to the bankrupt money for the purpose of settling with his creditors. The purpose failing, a part of the money was repaid to A. by the bankrupt: Held that this repayment was protected, and that the assignees could not recover the money so repaid.

MONEY had and received. Plea, general issue. At the trial before Abbott, Ch. J., at the sittings after last Easter Term, at Westminster, it appeared that the circumstances of the case were these. The act of bankruptcy was a lying in prison two months. During the continuance of the imprisonment, the bankrupt being desirous of settling with his creditors, sent his wife to borrow of the defendant, his brother-in-law, 120l. for that purpose. The money was accordingly lent, but the purpose failing, 951. was afterwards repaid to the defendant by the bankrupt, who still remained in prison. It did not appear that the individual notes composing the 951. were any part of the notes originally advanced by the defendant, nor was there at the time of the advance any express stipulation, that if the object was not *attained the money should (1) Foll. by WRIGHT, J., In re Vautin [1900] 2 Q. B. 325, 327; 69 L. J. Q. B. 703, 82 L. T. 722.

be restored. ABBOTT, Ch. J. thought that this was money advanced for a special purpose, and that it did not pass to the assignee, and that therefore the repayment was protected, and non-suited the plaintiff. And now

Gurney moved for a new trial:

If these had been the identical notes which had been before advanced by the defendant, or if at the time of the advance there had been any express stipulation to restore the money, in case the object should not be attained, the case might have been different. But neither of these circumstances exist here. Then this is the ordinary case of money in the bankrupt's hands lent to him by the defendant, which is the property of his assignee, and consequently this repayment to the defendant cannot be protected. The defendant must claim like the other creditors, and receive his proportionate dividend.

ABBOTT, Ch. J.:

I thought at the trial, and still think, that the fair inference from the facts proved was that this money was advanced for a special purpose, and that being so clothed with a specific trust, no property in it passed to the assignee of the bankrupt. Then the purpose having failed, there is an implied stipulation, that the money shall be repaid. That has been done in the present case; and I am of opinion that that repayment was lawful, and that the nonsuit was right.

Rule refused.

REX v. ANTHONY COLLETT, CLERK (1).

(2 Barn. & Cress. 324-342; S. C. 3 Dowl. & Ry. 582; 2 L. J. K. B. 44.)

Overseers of the poor are bound to endeavour to find work for the ablebodied poor who are out of employment. Quare, Whether they can legally give relief to such persons, otherwise than by setting them to work and paying them for their labour.

UPON an appeal against an order of two justices for the allowance of the accounts of the overseers of the poor for the parish of Kelsale, in the county of Suffolk, the Sessions confirmed the order subject to the opinion of this Court on the following case: "The appellant (Mr. Collett) is the proprietor of a considerable 516, 543, 69 L. J. Ch. 299, 306, C. A. -R. C.

(1) Referred to in the judgment of LINDLEY, M. R., in Att.-Gen. V. Merthyr Tydfil Union [1900] 1 Ch.

estate in the parish of Kelsale, a part of which is in his own occupation. In consequence of the extreme depression in the price of agricultural produce for the last two or three years, the farmers have been rendered *unable to make any improvements on their lands, and consequently have employed very few labourers, by which means a considerable part of the labouring population has been totally unemployed, and during this period, all poor persons belonging to the parish, who have been unable to obtain employment, have received sums of money for their maintenance from the parish officers in proportion to the number of their respective families, for which no labour has been required from them. The appellant being dissatisfied with this application of the parish funds, appealed against the overseers' accounts. The respondents, upon the hearing of this appeal, admitted that the persons to whom the sums objected to in the account were paid, were in fact both able and willing to work, but that no employment could be obtained for them, which the appellant contended, the overseers were bound to provide pursuant to the statute of the 43 Eliz. c. 2, although no evidence was adduced to prove that the overseers could have employed the labourers. It also appeared, that none of the sums objected to were paid under or in consequence of any orders from a magistrate. The parishioners were accustomed to meet once a week at the parish workhouse, at which meetings all applications for relief were received, and where all labourers belonging to the parish, who had not in the preceding week been in constant employment, attended to give an account of their earnings, and received such sums as, with the earnings, should amount to a sum deemed competent to their maintenance in proportion to the number of their children. In several cases, it appeared that able bodied men with four or five children, having had no employment in the preceding week, received from the overseers *from 7s. to 8s. 6d. for the week; having been employed three days, 3s. 6d. to 4s. per week; having been employed two days, 58. per week, and so in proportion to the number of their children and the amount of their week's earnings. And in all cases this relief was afforded to these persons, solely on the ground of their having been out of employment, without reference or enquiry as to any means they might have of raising money for the supply of their immediate wants by sale or pledge of their household effects; and that in many instances, the weekly relief was afforded to various able bodied labourers for many weeks in succession."

REX

ተ.

COLLETT.

[ *325 ]

[ *326 ]