Page images
PDF
EPUB

1822.

ST. JOHN

CHAMPNEYS.

fall within the 6th section of the 53 Geo. S. With respect to the objection which has been raised as to that point, as well as the memorial being defective, on the ground that all the names of the parties by whom the annuity was to be beneficially received are not stated, they go to the merits only; and the only question for the consideration of the Court is, as to the construction of the statutes 53 Geo. 3. and 3 Geo. 4. as far as regards the description of the witnesses in the memorial.

Mr. Serjeant Lawes and Mr. Serjeant Peake, in support of the rule, admitted that there was no ground for the two latter objections, and confined themselves as to the description of the witnesses in the memorial. Although the statute 3 Geo. 4. was passed to remove any doubts as to the construction to be put on the 53 Geo. 3. c. 141, still the former statute did not have a retrospective operation, but was merely declaratory or prospective; and provided that the 53 Geo. 3. should receive the construction put on it by the legislature, from the time the 3 Geo. 4. was passed. It is stated in the proviso, that it may be doubtful whether it was the intention of the legislature to require any description to be added to the names of the witnesses; and as doubts had been entertained whether the construction put on the 53 Geo. 3. was the true construction or not, it provides as to how it shall be construed and taken in future. This case therefore must be considered as if that statute had never been penned. If not, it at all events falls within the exception of the 4th section, by which it is provided, that the act should not affect or prejudice any proceeding in law commenced before the 31st May, 1822, and depending at the time that statute was passed. That was introduced for the express purpose of excepting this particular case from the operation of that statute, as the rule was granted previous to that day. The legislature did not intend to disturb judge

ST. JOIN

1822. ments formerly pronounced, or to reverse the decisions

of the Court of King's Bench in Darwin v. Lincoln, and CHAMPNEYS.

Smith v. Pritchard; and it would be equally bard to deprive parties of the benefit of motions vbich were depending before the Court previously to the passing of the latter statute. The construction put on the 53 Geo. 3. in those cases was not only the true and proper construction, but cannot now be controverted. That statute was passed for the prevention of the mischief attendant on the granting of annuities; and the word “ of” in the column of the schedule which was to contain the names of the witnesses, must have some meaning, and must necessarily refer to their places of abode or residence, and more particularly so, as the express object of the memorial was to give publicity to transactions of this pature, and to trace the parties attesting the execution of the deed with facility and certainty, in case their testimony should be required to state the circumstances under which the annuity was granted. The witnesses alone could give information whether part of the consideration was retained or returned, or whether the transaction was conducted in a fair and honourable manner at the time of the execution of the deeds. It has been said, however, that the word “ of” is applicable only to the indentures of lease and release, and cannot be taken to extend to bonds and warrants of attorney; but these' latter instruments form part of one and the same transaction, and the parties must be described alike in all, and therefore it was unnecessary to repeat that word in the latter part of the column, at the top of which it was introduced. The case of Haslope v. Thorne is inapplicable to the present, as it turned on the construction of a rule of Court as to a mere matter of practice, and was adverted to in Darwin v. Lincoln, where Lord Chief Justice Abbott observed, that (a)" it

(a) 5 Barn. & Ald, 449.

was of great importance that the place of abode of the 1822. witness should be inserted in the memorial, for otherwise

ST. JOAN annuity deeds might be executed in the presence of wit

CHAMPNEYS. nesses wholly unknown to the party, and he might afterwards have no means of finding them out, for the purpose of obtaining their evidence as to what passed at the time of execution :" and Mr. Justice Bayley and Mr. Justice Best concurred in that opinion; and the latter said, “ (6) The witness to the deed is described merely as clerk to Mr. B. ; that is not the description which the act requires. He may be clerk for a single day, or his employer may uot be disposed to give the required information. He may have an interest in withholding it." The subsequent case of Smith v. Pritchard is precisely similar to the present in terms, in which the Court again held, that not merely the name, but the place of abode of the witness should be stated in the menorial. Certain circumstances are required to be stated in that instrument, and if one ingredient be omitted, it renders it defective altogether, and cannot afterwards be made available. Laying aside, however, the 53 Geo. 3. and 3 Geo. 4. even by the 17 Geo. 3. c. 26, it was necessary to describe the witnesses by their place of abode; for the Courts have always construed that slatute strictly with respect to grantees : but as it was found to be prejudicial in some respects, the 53 Geo. 3. was passed to simplify and correct it, and in which a schedule was given as to the requisites each memorial should contain. Taking both these statutes together, their chief object was to give publicity to the names of all the parties interested in, as well as those attesting the execution of the instruments by which the annuity was to be secured. It has been said, that this Court has not jurisdiction to make this rale absolute in the terms as prayed for, or order the deeds to be delivered up to be cancelled, but they have

(a) 5 Barn. & Ald. 451.

1829.

ST. JOHN

CHAMPNRTS.

a summary jurisdiction over the judgment by reason of the warrant of attorney. Steadman v. Purchase (a). And they have also a jurisdiction over that instrument by the common law. If therefore the judgment be founded on an illegal consideration, it must fail in toto; and the latter statutes extend rather than limit the jurisdiction of the Court, and at all events give them a discretionary power co-extensive with the objects for which those statutes were passed.

Lord Chief Justice DALLAS. It has been admitted in the course of the argument, that this case is entirely free from the objection which was raised wben the role was applied for as to the returning or retaining any part of the consideration money paid for the annuity when it was granted, or that the plaintiff was by any means privy to the conduct, or rather the misconduct of Messrs. Howard and Gibbs. In substance, therefore, the plaintiff has brought a fair case before the Court, and it has been so asserted on the one hand, and not denied on the other. That part of the rule, therefore, which related to the retaining of any part of the consideration money, was most properly abandoned in the course of the argument, and in the result, the plaintiff's case as to that point stands on honourable and unimpeached grounds. The only remaining objection, therefore, on which the annuity is now sought to be set aside, rests on the manner in which the attestation of the witnesses is described in the memorial, viz. whether it be a sufficient description to give the name of the place where they are occupied during the day, and not that of their residence or place of abode. It has not been pretended that the parties have not been able to discover them by the description which has been given, or that any inconvenience

(a) 6 Term Rep. 739.

1822.

ST. JOHN

CHAMPNEYS.

has been occasioned by such description. The objection therefore resolves itself into a mere matter of form, which appears to me to be against the merits and justice of the case; but this objection is not less entitled to the attention and consideration of the Court, as we are called upon to dispose of it according to law, whatever that law may be. In order to do this, the different statutes on which the question arises must be considered, to ascertain whether this attestation be sufficient as to the description of the place of residence of those witnesses, viz. whether it must be the place of their occupation, or that of their actual abode.-The statutes relative to this point are the 17 Geo. 3. c. 26., 53 Geo. 3. c. 141., and the late act of 3 Geo. 4. c. 92. It appears to me to be proper for this purpose to consider the latter statute first, and see whether it be declaratory or not; and if so, whether it be prospective or retrospective. If it be declaratory, there is an end of the question, as it directs, that by the 53 Geo. 3. the names only of such witnesses are reqaisite to be stated in the memorial, without even the addition of their place of occupation or residence. If it be retrospective, a question arises, whether this particular case is saved by the proviso or exception in the 4th section of that statute. Difficulties may arise as to that proviso, which I do not deem it necessary at present to interfere with, as I shall treat the question in a general point of view. It appears to me, however, to be quite clear, that as this case was in progress before that stalute passed, (viz, on the 29th July, 1822,) it was intended that it should not fall within its operation, but remain on the same footing as it stood before. There would have been no occasion for the proviso, unless it be so understood. This appears by the enacting clause; and the statute being declaratory, as connected with the saving, at the end of it, shews that this case was to be excepted, and not affected by it. It is, therefore, neces

« PreviousContinue »