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and he relied on the case of Payne v. Rogers (a), where it was held, that if a defendant, who is sued by a landlord in the name of his tenant, procure a release from the no. minal plaintiff, the Court would order such release to be delivered up, and permit the landlord to proceed in the action. He also cited the cases of Legh v. Legh (b), and Innell v. Newman (c), to shew that where a release was obtained by fraud, or against good faith, or given by a nominal plaintiff, the Court would order it to be cancelled, and set aside a plea which was founded on such an instrument,
Mr. Serjeant Pell now shewed cause, on affidavits which stated, that the present action was not commenced against the defendants until the month of July last. That they took possession under the lease granted to them by the plaintiff Manning, shortly after it was executed, and continued to occupy under 'it until 1815, when they entered into a treaty with Diron to assign all their interest to him for the sum of 501., which was accordingly paid them, and that Manning assented to the assignment; and that in January, 1816, he offered to give them a release, although it was not actually executed by him till March, 1821. Under these circumstances, the learned Serjeant insisted, that as the release was executed more than a year before the commencement of the present action, it cannot be presumed that it was intended to operate as a fraud upon the trust; and more especially so, as the defendants knew nothing of Man. ning but in the character of landlord. Even supposing there were fraud, the receiver, as the real plaintiff, should either have replied that the release was fraudulently obtained, as in the case of Craib v. D'Aeth (d), or institut
(a) I Duug. 407,(6) 1 Bos. & Pul. 447.—() 4 Barn. & Ald. 419,
(d) 7-Term Rep. 670, n.
ed proceedings in a court of equity, where the whole of the transaction might be enquired into and investigated. This case is distinguishable from that of Payne v. Rogers: as there the party who gave the release was the tenant, and the Court permitted the landlord to proceed in the cause in his name. Here, however, the plaintiff was the original lessor of the defendants; and for any thing that appears to the contrary, they might have supposed that he had an absolute interest in the premises in his own right; and more particularly so, as he afterwards permitted them to assign to Diron for a valuable consideration.
Mr. Serjeant Hullock, in support of the rule, contended that as all the trusts and interests of the parties were recited in the lease, the defendants must have known in what situation the plaintiff Manning stood; and more particularly so, as he was described therein as a trustee, and the defendants covenanted with him as such.
Lord Chief Justice DALLAS.-It is quite clear, that the plaintiff Manning could not execute the release, without being guilty of a breach of trust. At all events, it was granted by him to the defendants in fraud of the trust reposed in him, and if it were allowed to stand, would operate to destroy the interests of the testator's children, for whom Manning was appointed trustee under the will. I am,
therefore, of opinion, that on this ground alone, this rule must be made absolute.
Mr. Justice PARK.-The cases of Payne v. Rogers and Innell v. Newman, are extremely strong to shew, that under the circumstances, the Court is fully warranted in granting this application.
Mr. Justice BURROUGH.-It appears, that in 1818, pro
ceedings in Chancery were instituted against the plaintiff, at the suit of one of the parties beneficially interested under the will, and the release seems to have been executed in March, 1821. It was consequently given pending that suit, which does not even now appear to be deterinined; and that instrument is now pleaded by the defendants for the purpose of destroying the interest of the testator's children, for whom the plaintiff was appointed trustee. He must have given it in that character, and in direct breach of the trust reposed in him. It is, therefore, so far fraudulent, that the defendants ought not to be allowed to avail themselves of it in this action. There can be no doubt tbat the Court has not only an equitable jurisdiction, but they may exercise. their discretion in a case of this nature; and it would be too much to allow the release to stand, or compel the parties to reply that it was obtained per fraudem.
CARROLL v. Sir GEORGE Goold, Bart.
Mr. Serjeant Lens, on a former day in this Term, ob- Where, upon
the grant of an tained a rule, calling on the plaintiff to shew cause, why annuity, the the writ of execution issued against the defendant in agent who nethis cause, should not be set aside, upon payment of the boxslated it as
grantor and balance due to the plaintiff, together with the costs, grantee was appoundage, officers' fees, and other incidental expenses and receiver of on such balance only.-He founded his motion on an the rents of the
estate of the grantor on which it was charged, and afterwards advanced money to the grantee out of his own funds, in anticipation of the receipt of the arrears from such estate, and debited the grantee with the usual commission charged by him on annuity payments ;- Held, that upon the eventual failure of the securities and insolvency of the grantor, the agent could not treat such an advance as a mere loan; but that it must be taken as a payment made to the grantee in liquidation of the arrears of the anmuity; and that the latter could only issue execution against the grantor for the amount of the arrears actually due, after deducting the sum advanced and receired
by him from such agent. VOL. VII.
affidavit of the defendant, which, in substance stated, that by an indenture of five parts, bearing date the 26th July, 1811, and made between the defendant of the first part; the plaintiff, of the second; the several persons whose names were set forth in the schedule to the said indenture, of the third ; Edward Howard, of the fourth ; and James Gibbs, of the fifth: the defendant, in consideration of 2,4501. in the indenture stated to be paid to him by the plaintiff, granted to the latter on behalf of himself, and as trustee for the said several other persons of the third part, an annuity of 3501. English money, for the life of the defendant, charged upon bis estates in Ireland, which were, by the said indenture, assigned to Howard for a term of years, the better to secure the annuity; and Gibbs was appointed the receiver of the rents of the said estates. That in order the further to secure the annuity, the defendant, on the said 26th July, executed and gave to the plaintiff a warrant of attorney to confess a judgment against the defendant, at the suit of the plaintiff, in an action of debt for 4,9001. upon wbich judgment was accordingly entered up in Hilary Term, 1812. That in 1818, Gibbs, as such receiver, entered into the receipt of the rents of the defendant's estates in Ireland, either by himself or his partner Howard, or by their agents, and that they so continued in the receipt thereof, until they became bankrupts, in February, 1821. That the defendant, on the 27th Nov. last, was taken in execution on the said judgment at the suit of the plaintiff, under a writ of ca. sa. issued out of this Court, indorsed to levy 1,8471. 10s. 8d. besides sheriff's poundage, &c.; and that he was still detained in custody ander that execution. That on the 23d Dec. following he received a notice from the assignees of Howard and Gibbs, stating that the latter had paid or advanced the sum of 6801, 3s. 8d. on the credit or security of the annuity, to the several parties beneficially interested therein, and that the assignees
were therefore entitled to receive it out of the arrears ; and they required the defendant not to pay any part of that sum to the plaintiff, or any other person than the assignees.-The defendant also swore, that he verily believed that Howard and Gibbs, so being in the receipt of the rents of his estates, had paid to the plaintiff, and the other persons interested in the annuity, the said sum of 6801. 33. 8d., and debited the account between them and the defendant with the same; and further, that they had in their accounts with their respective clients charged a commission for themselves of two and a ball per cent. for receiving the money so paid; and he now claimed as between him and the plaintiff, to be allowed the benefit of such advance.
Mr. Serjeant Vaughan and Mr. Serjeant Taddy, on behalf of the plaintiff, now shewed cause, and produced an affidavit made by him, which stated, that in July, 1811, he was applied to on behalf of Howard to purchase a portion of a considerable annuity, to be granted by the defendant for his life, and to be charged and secured on his Irish estates. That the annuity was granted accordingly, and regularly received by Howard of the defendant, and paid by him to the plaintiff up to the a6th Oct. 1816; and that Howard acted as the plaintiff's agent, he allowing him a commission of two and a half per cent. for receiving and paying the annuity. That the annuity was afterwards in arrear, and that the plaintiff was very urgent with Howard and Gibbs (who had some time before entered iato copartnership with Howard), to obtain payment of the annuity; and that in consequence, he on the 28th May, 1820, received a letter from Gibbs, enclosing the account. That in consequence of having received such letter, he (the plaintiff) with the full knowledge that Howard and Gibbs had not received the annuity from the defendant, did, on the 29th