1803. HOBHOUSE v. HAMILTON, THE bill in this case was filed by the plaintiff as assignee of a judgment affecting the estates devised to defendant, for payment of himself and other creditors having charges affecting these estates. The deed of assignment of the judgment had been lost, and was so charged by the bill; but a memorial of it had been duly entered according to the act of parliament (9 Geo. 2, c. 5). On the hearing of the cause an attested copy of the memorial was offered to be read as evidence of the assignment of the judgment after proof of the lass of the deed of assignment as charged by the bill. July 10. An attested copy of the memorial of the assignment of a judgment is evidence of the fact of the assignment. So the attested copy of the memorial of the registry of a deed is evi dence of the fact of the registry; but if the memorial be used as evi Mr. Plunket (for defendant) objected that the original dence of the memorial should be produced, for that the attested copy of contents of the deed, the orithe memorial, when offered as evidence of the assignment, ginal must be could only be considered as the copy of a copy, and there- produced. fore not admissible evidence. He compared it to the cases upon the registry act, in which it had been decided that though the attested copy of the memorial be good evidence of the fact of registry, it was held not to be admissible evidence of the contents of the deed, when by the loss of the deed it became necessary to resort to the memorial for secondary evidence, and that in all these cases was produced, and it was the practice for tend with it from the registry office; and he cited lessee of Colclough v. Doyle, B. R. nemorial itself officer to at The Lord CHANCELLOR admitted the distinction as applied to the registry act, viz. that the attested copy of the 1803. HOBHOUSE V. HAMILTON. memorial is evidence only of the fact of registry; but that if the memorial is meant to be used as evidence of the contents of the deed, the original memorial must be produced. But he held that in the case of a judgment the contents of the deed of assignment were not material; that what appeared on record was the proper evidence of the fact of assignment that if a memorial be duly entered agreeable to the act of parliament, the party cannot say the judgment was not assigned, and can only apply to the court to vacate it if done without authority. His lordship said he had had doubts upon this point in another case, and had looked into the statute, and that he was of opinion that by the true construction of the act the party is bound and concluded by what appears on record, although the assignment might have been forged, and that payment to the assignee on record would be good payment that of course if the record be conclusive as to the fact of assignment, an attested copy of it must be good evidence of that fact, and that there is no occasion to produce the deed of assignment. His lordship compared it to the case of enrolment of a deed, the office copy of which is evidence against the party, because the statute makes it evidence; and in that case if a person not the attorney of the party acknowledges a deed in his name, and it is enrolled on that acknowledgment, the enrolment binds(a): it is considered so solemn an act that it is looked upon as better to put the party to seek his remedy against the attorney than to suffer it to be questioned; and there are many cases in the year books to that effect. So in this case, according to the true construction of the act for assigning judgments, what appears on record is equally binding on the party, and the attested copy is good evidence. (a) Vid. 1 Leon. 184; 1 Salk. 389. 1803. BOWLES v. STEWART. July 12, 13, 14. A renewal taken by tenant for life of a lease for lives benefit of those in remainder, and a fine levied by the heir of such tenant for life keeping possession of the title deeds will not bar those in re mainder : nor such a suppres Suppression of deeds tanta SAMUEL HILL being seized of considerable estates in fee-simple, and being possessed of certain premises on Ormond-quay and in Charles-street, in the city of Dublin, for the residue of long terms for years, and also in possession of certain premises in Stony-batter, in the county of Dublin, under a lease, the precise nature of which was not clearly ascertained, on or about the 22d December 1722 duly made and published his last will, and thereby directed that the trustees therein named should with all convenient speed, after his death, sell to the best advantage all his personal estate, and also his leases for years, and with the money arising will any length therefrom (if same should be sufficient) should pay off and of time during discharge his funeral expenses and just debts, and also the legacies therein mentioned; and if there should be any overplus, then he directed that the same might be settled and disposed of to the same uses as his real estates were thereby limited. And as to all and singular the towns and lands whereof he was seized of an estate of inheritance, and also his leases for lives, he devised the same to the said trustees, in case the money arising from his personal estate and the sale of the chattel interests should not be sufficient to discharge his funeral expenses, debts, and legacies, upon trust to receive the rents, issues, and profits of his real and freehold estates, until his daughter Alithea Maria should attain her age of twenty-one years, or be married with their consent; and thereout to pay her 100l. per annum, for her education, &c. and 50l. per annum to his brother, and to apply the residue of the rents and profits to what should remain unsatisfied of the debts and legacies, and when his duty it was to mount to spo liation in re- suppressing. the act of his tho' not done with the knowledge of the principal. Concealment of a material fact sufficient to avoid a release obtained by the person whose make the disclosure. 1803. BOWLES V. STEWART. said daughter should attain the age of twenty-one years or in case she should before then marry with the consent of the trustees, he devised all his fee-simple and freehold estates to the use of his said daughter for life without impeachment of waste, subject to the unsatisfied debts and legacies, and to the annuity to his brother: remainder to trustees to preserve contingent remainders, remainder to her first and other sons in tail male: and in case his daughter should marry with consent as aforesaid, he directed that it should be lawful for the trustees, if they should think fit, to grant or convey any part of the fee-simple or freehold estates to any husband his daughter should marry; and if she should marry before twenty-one and without consent, the testator devised said estates to his brother with several remainders over. Shortly after the execution of this will, Samuel Hill died, and his daughter intermarried with General Phineas Bowles, grandfather of the plaintiff; previous to which, on the 7th and 8th of June 1724, deeds of lease and release were executed, by which the trustees and executors of Hill's will, in consideration of the marriage, and of 3,000l. paid by General Bowles, conveyed to him a life estate in the fee simple and freehold property, with limitations over agreeable to the will of Samuel Hill; the 3,000l. was paid to trustees named in the settlement, and was to be applied in discharging such incumbrances affecting the real estate as the money arising from the personal estate should be insufficient to pay. The settlement took no notice of the premises in Stoney-batter nor of those in Charles-street or Ormond-quay. However, General Bowles became possessed of them, and in 1734, he surrendered to Lord Mount Cashel, the owner of the fee, the residue of the terms for years then subsisting of the premises in Charles-street and on Ormond-quay, and Lord Mount Cashel by deed of 13th April 1734, (which recited the leases under which these premises had been held, and that the interest therein had become vested in General Bowles) redemised the same premises to him for lives with covenants for perpetual renewal. General Bowles continued in possession during his life, made leases, and exercised all other acts, of ownership over these premises. On 12th September 1749, he made his will, and thereby devised all his messuages, houses and estates on Ormond-quay, in Charles-street, Stoney batter, or elsewhere in the city of Dublin, (except a certain tenement in Mary's-abbey) to his wife for life, and after her decease to his eldest son William Phineas Bowles. He then bequeathed a certain sum of money to his daughter, and directed that all the residue of his personal estate should be divided into two parts, one part to exceed the other by a sum of 500%. and the lesser part together with the house in Mary's-abbey he bequeathed to his eldest son, and the greater part to his younger son; and declared the legacies thereby bequeathed to his daughter and younger son to be in satisfaction of all charges they might have under settlement on his county of Dublin estate; and appointed his wife and eldest son executors, General Bowles died shortly after making his will, leaving Alithea his widow, William Phineas his eldest son and heir at law, one other son Richard, (the defendant to the original bill) and one daughter. Wm. Phineas died in 1760 in the life time of his mother, having first duly made his will (bear. ing date the 25th June 1760) and devised to the plaintiff (who was his illegitimate son, and who was then an infant of tender years) all his real and personal estate and leasehold interests, and all benefit, property, advantage and interest to arise thereout from the time of his death forever, subject to certain annuities, with a remainder to his brother and sister, 1803. BOWLES V. STEWART. |