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1822.

Sr. JOHN

CHAMPNEYS.

a statute had been framed by the Attorney-General, and was then in progress before the House of Commons, by which the inconvenience arising from the construction put on the 53 Geo. 3. c. 141, by the Court of King's Bench, in the cases of Darwin v. Lincoln (a), and Smith v. Pritchard (b), as to the description of the witnesses, was to be remedied, and that it was intended that the new statute should have a retrospective operation, as that Court had construed the 53 Geo. S. contrary to the intention of the legislature when it was passed. The Court therefore ordered the rule to be enlarged until this Terin; which having been accordingly done,

Mr. Serjeant Vaughan and Mr. Serjeant Taddy shewed

cause.

The late statute 3 Geo. 4. c. 92, which was penned by the Lord Chancellor, and passed on the 29th July last, obviates every difficulty, and is a conclusive answer to this application, and which was passed to explain the 53 Geo. 3. respecting the enrolment of memorials of grants of annuities, and which, after reciting the enactment of that statute, and that in consequence of such indistinct enactment it might be doubtful whether it was the intention of the legislature to require any, or if any, what descriptions to be added to the names of witnesses in the memorial of any deed, instrument, or assurance to be enrolled; proceeds to enact and declare, that no further or other description of the subscribing witness or witnesses to any deed, bond, instrument, or other assurance, whereby any annuity or rent-charge is or may be granted, is required in the memorial thereof besides the names of all such witnesses ; and that so the said act of 53 Geo. 3. c. 141, should be deemed, construed, and taken. Besides, by the preamble to the latter statute

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it appears, that the Court of King's Bench were mistaken in the construction they put on the 59 Geo. 3. as it recites that doubts had been entertained whether that was the true construction. It may be said, however, that this case falls within the exception of the fourth section of 3 Geo. 4. by which it is provided, that “that act shall not affect or prejudice any suit ‘or proceeding at law or in equity, commenced on or before the 31st May, 1822, and then depending, upon the ground of an alleged defect in the memorial of the deeds, in not describing the witnesses thereto, otherwise than by his, her, or their name or pames, for avoiding any such deed, bond, instrument, or other assurance.” But the defect here objected to is not an omission in describing the witnesses otherwise than by name, for a description is added or annexed, which takes the case out of the exception, viz. as being clerks to Mr. Howard, of Cork Street, Burlington Gardens. The object of the latter statute was to provide a remedy against minute verbal inaccuracies, and the exception applies to cases where the names only of the witnesses had been set out, and not where a further description had been superadded. Supposing, however, that the last act had not passed, or this case is excepted from its operation, the witnesses are properly described according to the provisions of the 53 Geo. 3. c. 141. The enacting clause (a) merely requires that the names of all the parties and witnesses shall be enrolled in the memorial, with such alterations therein as the nature and circumstances of any particular case may reasonably require. The object of the memorial is merely to set out the substance of the deed, and the place of the abode of the different witnesses is not only unnecessary, but not required by that statule. Although by the schedule, which must be taken as part of the enacting clause, the word “ ofis introduced after the initials E. F. and G. H., as be

(@) S. 2. VOL, VII.

2c

ing applicable to indentures of lease and release, yet in the same column, in cases relative to a bond, and warrant of attorney to confess judgment, that word is altogether omitted, and the initials E. F, and G. H. only are inserted, and stand alone. The word “ of” might therefore have been introduced by mistake at the head of the column, or may be taken to have no meaning; as no substantial or legal distinction can be drawn between the effect of indentures of lease and release, or a bond and warrant of attorney, as relating to a case of this description; and it would be absurd to say, that the execution of instruments of the latter description does not require as much precision or formality as the former. At all events, it can merely be inferred, that some description was to be given to the witness, by the introduction of the word of ; but that does not of necessity apply to the place of bis residence, as by the terms of the statute the memorial is to be enrolled according to the effect in the schedule, with such alterations as the nature and circumstances of each particular case might require ; and surely that has been complied with, when the residence of the principal has been given. Although in Darwin y. Lincoln (a) the Court of King's Bench required the description and place of residence of the witnesses to be inserted in the memorial, yet the form of the schedule in the 53 Geo. 3. was not sufficiently adverted to, and the action was there brought on a bond, in which it is quite clear that the names of the witnesses only would have been sufficient; for if any particular or further description could be required, it would only apply to indentures of lease and release: but it appears, that the legislature did not intend that construction to be put even on instruments of the latter description. That case, therefore, can no longer be considered as an authority. There too the subscribing witness was merely described

1822.

Sr. JOHN

0. CHAMPNEYS.

(a) 5 Barn, and Ald. 444.

1822.

ST. JOIIN

CHAMPNEYS.

in the memorial as the clerk of Mr. Birkelt, without adding the residence of the latter. The case of Smith v. Pritchard (a) was determined entirely on the authority of Durwin v. Lincoln, in which Lord Chief Justice Abbolt stated, that he still retained the opinion he had formed in that case. There too, the question arose on a warrant of attorney, and is open to the same observation as Darwin v. Lincoln, viz. that the name of the witness only would have been sufficient, and it was expressly noticed in the preamble to the 3 Geo. 4. that the word " of,” was only applicable to indentures of lease and release, and not to a bond or warrant of attorney. Taking the case on principle, it is more probable that an attorney's clerk may be heard of at the house or office of his employer, than in some obscure lodging, where he might have a temporary residence at the time of executing the deeds; and in Haslope v. Thorne (b) it was held sufficient for the plaintiff's clerk, in an affidavit to hold to bail, to state his place of abode to be the office where he was employed, though he slept at another place; and there a substantial compliance with a rule of Court was necessary, which required his true place of abode to be inserted in the affidavit; and Lord Ellenborough thought, that the object of the rule was to ascertain where the deponent was most usually to be found. That is sufficient for all reasonable or legal purposes, and at all events must be so for the purposes of the statute in question ; for the strict residence of a clerk could only be ascertained with difficulty, as he inight change from lodging to lodging, and not have resided forty days at any one place, so as to gain himself a settlement. At all events this Court has no summary jurisdiction to set aside the annuity, or order the principal deeds to be delivered up to be cancelled on an application of this de

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1922.

ST. JOHN

CHAMPNEY6.

scription. It must be confined to the cases denominated in the 6th section of the 53 Geo. 3. (a) viz. to a fraud in the returning or retention of part of the consideration for which the annuity is granted, and not to a mere technical objection as to the misdescription of a witness. So, in the Duke of Bolton v. Williams (6), Lord Loughborough, in treating of the 17 Geo. 3. c. 26, said, “ The courts of common law, which will upon their general jurisdiction enter into the validity of the warrant of attorney or judgment upon motion, in the particular application under the act, will only set aside the judgment or execution, or vacate the warrant of attorney; but the jurisdiction does not extend to ordering the bond to be delivered up; and if ever done, it has been done inadvertently." So, in Chawner v. Whaley (c), where the rule sought to set aside the bond and warrant of attorney, and that the several deeds for securing the annuity might be delivered up to be cancelled, Mr. Justice Le Blanc observed, “that the defendant could not have more of bis rule granted than for setting aside the war rant of attorney and judgment, over which the Court of King's Bench had an undoubted jurisdiction, but that it belonged to another Court to set aside the deeds." So the Court of Exchequer cannot proceed on motion, to order the securities to be delivered up for an omission in the memorial, but can only set aside the warrant of attorney and judgment. Appleby v. Smith (d). And this Court, in the case of Symonds v. Cobourne (e), refused to order an annuity bond to be delivered up to be cancelled, though it was void under the 1st section of the 17 Geo: 3. c. 26. as the motion should have been merely to stay

the proceedings. So here, as none of the consideration

money appears to have been returned or retained, it does not

(a) See this section, ante, Vol. VI. 492.- (6) 4 Brown. Chan. Cas. 310 2 Ves. jun. 154. 1 Bos. & Pul. 66, (n). -(c) 3 East, 500. (d) 3 Anst. 865,- -(e) 1 Bos. and Pull. 482.

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