1828. June 23. July 1.

Rolls Court.
LEACH,
M.R.

[5 Russ. 8 ]

[ *9]

POPHAM v. BROOKE.

(5 Russ. 8-11; S. C. 6 L. J. (O. S.) Ch. 184.)

A patient executed instruments, whereby he secured to the defendant, his surgeon, an annuity of 1007. during the life of the defendant, in consideration that the defendant would live with him and give him the benefit of his professional assistance during his life. Four days before the execution of these instruments, the defendant called in an eminent physician to visit the patient, who stated to the defendant his opinion that the patient could not recover nor live long; and, about the same time, the defendant expressed to a witness in the cause, that the patient could not live more than a month or six weeks. These instruments cannot be maintained, even if the patient were of sound mind and capable of business.

THIS was a bill by the executrix of the late Colonel Popham against the defendant Brooke, praying to have a deed and bond, by which Colonel Popham had secured to the defendant an annuity of 100l. for the term of his, the defendant's, life, delivered up to be cancelled.

Colonel Popham, having had an apoplectic attack in India, returned to this country for the benefit of his health in a ship belonging to the East India Company, of which the defendant was surgeon; and, during the voyage, in the course of which he had another apoplectic attack, he enjoyed the benefit of the defendant's professional assistance. The ship arrived at Gravesend on the 5th of July, 1824, and the defendant attended Colonel Popham to London, where they arrived on the 7th of July and resided together at an hotel. On the 8th of July, Dr. Nevinson was sent for by the defendant to give his opinion on Colonel Popham's case. Being examined as a witness in the cause, Dr. Nevinson stated, that he found Colonel Popham incapable of business, uttering monosyllables only, and that, too, with difficulty, and labouring under a diseased organization of the brain. Dr. Nevinson, on that occasion, informed the defendant that the Colonel could not recover or live long.

Either on the same 8th of July, or on the day preceding, the widow of General Popham, the uncle of the Colonel, and by whom he had been brought up, called at the hotel to see Colonel Popham; and, being examined as a witness, she stated in her evidence, that she there saw the defendant, who informed her, that the Colonel was in a deplorable state and not fit to see his relations, and that, in the opinion of the defendant, the Colonel could not live more than a month or six weeks: that she inquired of the defendant, whether Colonel Popham had received a note which she had written to him the day before; that the defendant answered, that he, the

defendant, had received the note, but had not communicated it to the Colonel, because he was incapable of understanding, of reading, or of writing.

On the 12th of July the deed and bond in question were executed by Colonel Popham, whereby, in consideration that the defendant would remain with the Colonel during the remainder of his life as his medical assistant, the Colonel secured to the defendant an annuity of 100l. for the life of the defendant.

Colonel Popham and the defendant remained at the hotel in London, until the end of August, and then went together to the house of an aunt of Colonel Popham's in the country, where Colonel Popham died in the following October.

The attorney, who drew the deed, and who, till then, was a stranger to Brooke, deposed that Colonel Popham perfectly understood the nature of the instruments, before he executed them, and was capable of business at the time.

Şeveral relations of Colonel Popham, who saw him in the country, gave evidence as to the care and attention with which the Colonel was attended by the defendant, and that, in their judgment, Colonel Popham was capable of understanding the effect of the instruments.

On the part of the defendant, the case was rested on the capacity of Colonel Popham, and on the sacrifice which the defendant had made in giving up his situation as surgeon to the East India ship for the purpose of fulfilling his part of the contract.

Mr. Horne and Mr. Abbot, for the plaintiff.

Mr. Bickersteth and Mr. Spence, for the defendant.

THE MASTER OF THE ROLLS:

If it were admitted that Colonel Popham was of capacity to understand, and did perfectly understand, the nature and effect of these instruments, they could not be maintained by the defendant. On the 8th of July the defendant was informed by Dr. Nevinson that Colonel Popham could not recover, nor survive long; and, either on that or on the preceding day, the defendant stated to Mrs. Popham his own opinion that Colonel Popham could not live more than a month or six weeks. When, therefore, these instruments were executed on the 12th of July, the defendant well knew that he was, in fact, giving little or no consideration for so large a

POPHAM v.

BROOKE.

[ *11 ]

gratuity; whereas Colonel Popham must have executed *them in the hope of a prolonged life. Under such circumstances it would have been the bounden duty of the defendant to have declined a compensation of that character, even if Colonel Popham had pressed it upon him, and had been, in truth, capable of business. If, however, the capacity of Colonel Popham on the 12th of July, when the deeds were executed, had been a material ingredient in the case, is it possible that such capacity could be assumed consistently with the evidence of Dr. Nevinson and Mrs. Popham, which applies to the 8th of July?

The plaintiff is entitled to a decree according to the prayer of the bill, with costs.

1827. May 12.

HART, V.-C.

[1 Sim. 348]

A plaintiff resident abroad, who had been ordered to give security for costs, but had not complied, ordered to give security, and on default, his bill to be dismissed.

AN order had been obtained in May, 1824, that the plaintiff, who was resident abroad, should give security for costs. The plaintiff not having obeyed this order,

Mr. Knight, for the defendant, now moved that the plaintiff might give the security before the first day of the next Term, or that his bill might be dismissed.

THE VICE-CHANCELLOR:

I am not aware of any authority upon this subject, but it appears to me that if a plaintiff will not conform to the practice of the Court, the defendant has a right to have the bill dismissed.

Motion granted.

(1) R. S. C., Ord. LXV., r. 6.

CLIFFE v. WILKINSON (1).

Security for costs.

(4 Simons, 122-124.)

Where the plaintiff is out of the jurisdiction, a defendant is at liberty to require the security of solvent persons to be given for costs.

A plaintiff resident out of the jurisdiction, allowed to pay 1207. into Court, in lieu of giving security for costs in the usual manner.

THE defendants had obtained an order that the plaintiff, who was resident in Scotland (2), might give security for costs, and that, in the meantime all proceedings in the suit might be stayed. The plaintiff afterwards proposed the security of two persons, named Potter and Matthison, who were objected to, by the defendants, as not being solvent persons.

The Solicitor-General and Mr. E. Montagu, for the defendants, now moved that the plaintiff might be ordered, within ten days from the date of the order to be made on the motion, to give security for the costs of the suit, according to the course of the Court, in the *room of, or in addition to Potter and Matthison, who had been already objected to on behalf of the defendants, and who, as the defendants were advised, were wholly insufficient for that purpose; or, in default thereof, that the bill might be dismissed with costs.

The motion was supported by affidavits, from which it appeared that Potter and Matthison were not solvent persons.

Mr. Pepys, Mr. Knight and Mr. Reynolds, for the plaintiff, said that the application was unprecedented, and that the Court required personal security only.

THE VICE-CHANCELLOR :

There is, I apprehend, no rule of the Court which prevents my attending to the question as to the sufficiency of the security for costs proposed to be given, by a plaintiff, in cases like the present: and, upon consideration of the affidavits, I am of opinion that the two persons who have been proposed are not solvent persons, and that their security ought not to be accepted.

Mr. Knight moved, upon notice given before the expiration of the time limited by order made, in this cause, on the 13th December (1) R. S. C. Ord. LXV.. rr. 6-7.

(2) See Ker v. Duchess of Munster, Bunb. 35.

1830.

Dec. 13.

1831. Jan. 20.

SHADWELL,
V.-C.

[ 4 Sim. 122]

[ *123 ]

1831.

Jan. 20.

CLIFFE

[ *124 ]

last, that the plaintiff might be at liberty to pay 100l. into Court, WILKINSON. in lieu of giving security for the costs. He said that the security required by the Court was limited to 100l.; and that *Sir ANTHONY HART, V.-C., though he had ordered, in Camac v. Grant (1), that the bill should be dismissed, in case the defendant should make default in giving security for costs, had afterwards expressed doubts as to his being warranted in making the order.

Sir E. Sugden and Mr. E. Montagu for the defendants.

The VICE-CHANCELLOR said that, if the plaintiff would increase the sum offered, so as to bear the expense of bringing the money into Court, and of getting it out again, he would grant the motion.

The order made was that, upon the plaintiff bringing into Court 1207. within a week, and paying the costs of this and the former application, the bill should be retained, otherwise that it should be dismissed.

1832. May 1, 24.

SHADWELL,
V.-C.

[ 5 Sim. 235]

TOOKER v. ANNESLEY (2).

(5 Simons, 235-242.)

A tenant for life subject to impeachment for waste, is entitled to the interest of money produced by the sale of timber cut by order of the Court.

JAMES TOOKER, Esq., by his will, dated the 20th of May, 1797, devised his freehold estates to Arthur Annesley, William Gould, and Francis Edwardes Whalley, and their heirs, to the use of the plaintiff, his only child, and her assigns, for her life, subject to impeachment for waste, but with power of cutting down such timber as might be necessary for the repairs of the estate, with remainder to the trustees, during the life of the plaintiff, in trust to preserve contingent remainders, with remainders to the plaintiff's first and other sons, successively, in tail male, with remainders to her first and other daughters in tail male, with remainders to her first and other sons, in tail, with remainders to her first and other daughters in tail, with remainder to the defendant, Hyde Salmon Whalley, and his assigns, for his life, subject to impeachment for waste, but with like power of cutting down timber for necessary repairs, with remainder to the trustees, during the life of the said Hyde Salmon (1) Ante, p. 62. Ch. 306, 342, 371, C. A.; Hartley v. Pendarves [1901] 2 Ch. 498.

(2) Dashwood v. Magniac [1891] 3