GIBSON

v.

Ross.

[ *260 ]

1840. Feb. 13, 17, 18, 20. May 7.

Lord COTTENHAM,

L.C. Lord WYNFORD.

[ 279 ]

the rule in several of these cases, the directors could not put this restriction on him, if the office was a public office. But I think it cannot be said here to be a public office. The mere fact of the incorporation of the subscribers does not give it that character. Then the case of Mason v. Scott having established that, in a private charity, the rules applicable to a public establishment should not be applied; and there being here nothing but an act of incorporation, which, in my opinion, does not make any difference in the nature of the institution; and there being no case stated to induce your Lordships to doubt that the directors had, by the constitution of this school, the right to dismiss the master,-I cannot advise you in favour of the present appeal. Three of the Judges at the time of the argument, one of them being the LORD PRESIDENT, thought that this bill ought to be permitted to be passed; but they did not express any decided opinion on the ultimate merits of the case. The LORD PRESIDENT proceeded on what had taken place before; but that does not appear to me to be a legal ground for decision. There had been considerable error in the former proceedings. The question now is, whether what was done by the trustees was rightly done. From the fact of the earlier proceedings having been founded in error, there does not appear to me any ground on which the Court *ought to take them into consideration. It is, therefore, unnecessary that your Lordships' time should be occupied further with this discussion, unless the respondents should ask for liberty to say something on the subject of costs. As advised at present, I should say that the judgment of the Court below ought to be affirmed, but not with costs.

Sir W. Follett, on the part of the respondents, disclaimed any wish to address the House on the subject of costs.

The appeal was then dismissed, and the interlocutor complained of was

Affirmed, without costs.

PERSSE v. PERSSE.

(7 Clark & Finnelly, 279-324; S. C. West, 110.)

Pleading-Covenant between father and son--Consideration-Legality. By indenture made in 1827 between R. P. and his eldest son D. P., reciting that R. P. P. of C. was seised of large real estates, was never married, and was then in a state of mental and bodily imbecility; that in the event of his dying so seised, intestate and without issue, R. P. as his heir-at-law would be entitled to the reversion of his estates in fee; that R. P. was

desirous of having a commission of lunacy sued out for the protection of
R. P. P. and his property and of his own reversion, and that D. P., at
R. P.'s request, agreed to sue out and prosecute such commission and take
other necessary law proceedings at his own expense, in R. P.'s name;
R. P., in consideration of the agreement and of love and affection for
D. P., covenanted to convey all the estates that would descend to him on
the decease of R. P. P. to the use of himself for life, remainder to the uses
expressed respecting the estate of R. in D. P.'s marriage settlement, being
for the benefit of D. P. and the heirs male of the marriage. The com-
mission was accordingly issued; R. P. P. was declared a lunatic, and D. P.
was reimbursed for his expenses out of his estate. R. P. was then 63 years
of age; the lunatic was 40; D. P. was younger. The lunatic died in 1829, and
R. P. entered into possession of his real estates, and conveyed them to his
second son, R. H. P., for valuable consideration. On a bill filed by D. P.
to set aside that conveyance and for specific performance of the covenant,
R. P., by his answer, said he entered into it without legal advice, and by
fraud, imposition and misrepresentation on the part of D. P.
It was
proved in evidence that both parties employed the solicitor who prepared
the indenture under advice of counsel for each; that R. P. read it and
heard it read before executing it, and afterwards as well as before expressed
his desire that the estate of C. should be united to the estate of R. and go
to his eldest son:

Held by the Lords (reversing a decree which dismissed the bill) that R. P. tendered a false defence, and that all the matters put in issue by his answer were disproved by the evidence.

A party after failing in the defence set up by his answer is not to be permitted to try another defence depending on matters not put in issue by the answer, and which, therefore, his adversary had no opportunity of disproving.

The indenture of covenant was not void or illegal for champerty *or [ *280 ] maintenance, or as against public policy, or fraud on the jurisdiction in lunacy, or want of mutuality. (Infra, p. 29.)

Regard being had to the ages and relative situation of the parties, and to the benefits secured by the issuing of the commission, there was some, and not very inadequate consideration for the covenant. (P. 30.)

Deeds in the nature of family arrangements are exempt from the rules applicable to other deeds; the consideration for the former being partly value, and partly love and affection. (P. 30.)

[THIS was an appeal from a decision of the LORD CHANCELLOR OF IRELAND dismissing the bill referred to in the head-note. The facts of the case and the effect of the documents material to the decision are concisely but sufficiently set forth in the judgment delivered on this appeal.]

Mr. Pemberton and Sir William Follett (Mr. G. Richards was with them), for the appellants, [cited Tweddell v. Tweddell (1), Neale v. Neale (2) and the cases cited in the latter case].

[303]

Mr. Knight Bruce and Mr. Jacob (Mr. Lowndes was with them), for the respondents, [referred to Lord ELDON's observations in

(1) 23 R. R. 168 (T. & R. 1).

(2) 44 R. P. 128 (1 Keen, 672).

[304]

PERSSE

t.

PERSSE.

May 7.

[308]

[ *309 ]

Gordon v. Gordon (1), and also cited the cases of Mortlock v. Buller (2),
Cadman v. Horner (3), and Clermont v. Tasburgh (4)].

THE LORD CHANCELLOR :

The object of this suit was to carry into effect an arrangement between the plaintiff, Dudley Persse, and his father the defendant Robert Persse, respecting a landed estate of considerable value, which belonged to Robert Parsons Persse, a lunatic, to whom R. Persse was heir-at-law. By a previous arrangement of 1823, Robert, who was tenant for life of the family estates called Roxborough, with remainder to his son Dudley, in tail, had conveyed his life-estate to Dudley, in consideration of an *annuity of 8001. for his own life, and payment of debts which are stated to have been equal to 17,500l., and a charge upon the estate of 6,000l. for Robert's younger children. The estate is represented to have produced about 4,500l. a year, and the age of the father in 1823 is stated to have been about sixty-one. Much has been said as to this transaction, but the propriety of it is not in question in this cause: its validity has never been impeached, and the provisions of it are very material for the purpose of showing the relative situation of the parties in the year 1827. Before that time, that is in 1826, Dudley married Miss O'Grady, and by the settlement upon that marriage, this Roxborough estate was so settled that Dudley took only a life-estate, with remainder to his eldest son in tail, and provision was made for the wife and the younger children.

Such was the state of the family property in 1827, at which time apprehensions were suggested that unfair means might be resorted to by others to deprive the family of the succession to the estates of Parsons Persse, then supposed to be a lunatic, which were called the Castleboy estates. The lunatic was at that time about forty; Robert Persse, his heir presumptive, was sixty-five, and Dudley a younger man than the lunatic. It is therefore obvious that Dudley's expectancy of succeeding as heir was much more valuable than his father's: and if he had so succeeded he would have had the estates in fee. From expressions proved to have been used by the father, it appears that the Roxborough and the Castleboy estates had formerly been united in his family, and that he was anxious that they should be reunited; but to effect that purpose it might be expedient that Dudley should not have the power of (1) 19 R. R. 237-241 (3 Swanst.

467-473).

(2) 7 R. R. 417 (10 Ves. 292).

(3) 11 R. R. 135 (18 Ves. 10).

(4) 20 R. R. 243 (1 Jac. & W. 112).

disposing of the Castieboy estate *any more than he had of the Roxborough estate. The course recommended to secure the Castleboy estate was to sue out a commission of lunacy against Parsons Persse, the expense of which, though to be paid out of the estate if the lunacy were established, required an immediate advance of money, which would fall on the party suing out the commission if the lunacy should not be established. Robert Persse, the father, had been a bankrupt, and had no command of money. Under these circumstances the deed of covenant in question in this cause, dated the 8th of December, 1827, was executed, the effect of which was that Dudley, the son, was to undertake the prosecution of the commission in the name of his father, and the Castleboy estate, if it should descend to the father on the death of the lunatic, was to be settled so as to give to the father an estate for life, and subject thereto upon the same trusts and purposes as the Roxborough estate stood settled. The commission was sued out, and the lunacy was established. The lunatic died in October, 1829,

and a will having been set up, an ejectment was brought by the person claiming under it, but upon a trial the jury found a verdict against his claim. The title of the heir being thus established, the present bill was filed to carry into effect the provisions of the deed. of the 8th of December, 1827.

With reference to the grounds upon which the prayer of that bill was refused by the Court of Chancery in Ireland, and upon which the decree has been supported at the Bar of this House, it is of the utmost importance to consider the defence set up by the answer. That defence consisted simply in stating that the deed had been obtained by misrepresentation and fraud, not of advantage taken of the distressed circumstances of the defendant, or of his want of legal assistance in stipulating terms for his own advantage, but by a fraudulent misrepresentation of the purport and object of the deed; the defendant deliberately swearing in his answer that he never intended to give up his expectancy of succeeding as heir to the lunatic, or in any manner to agree to settle his estate, but that the extent of his intention was to charge the expenses of prosecuting the commission upon the estate; and that he was told and believed that such was the only object and purport of it. That this defence is false in every part is proved beyond the possibility of doubt; the judgment of the Court below assumes that it is so; the instructions for the deed of December, 1827, if known to the father, disprove it; and four witnesses, O'Connor, Nolan, Waller

PERSSE

2. PERSSE.

[ *312 ]

and Richard O'Grady, prove that the draft deed was read over to, and a copy read by, the father before he executed it; and Richard Adams proves subsequent recognitions of it by him. Lord GUILLAMORE, the late Chief Baron of the Court of Exchequer in Ireland, though not actually present at the execution of the deed, was occasionally in the room when the parties met for that purpose, and he was made the depository of the deed by Robert Persse. If any such fraud as that sworn to in the answer was committed, Lord GUILLAMORE and his two sons must have been parties to it, or, what is scarcely more credible, the author of it must have chosen to practise it in their presence. It is unnecessary, however, to observe further upon this defence, as it forms no part of the judgment appealed from, and was not relied upon at the Bar by the counsel for the respondent.

*

But in considering the grounds upon which the judgment was founded, and upon which the right of the son to the relief he prays was denied at the Bar, it must not be forgotten that the defendant pleaded this defence and no other, and is therefore not at liberty to set up any other defence which depends upon matters of fact not put in issue, and which the plaintiff, therefore, had had no opportunity of disproving or of explaining. Objections to the relief prayed, which rest upon the nature or provisions of the deed itself, or upon facts common to both parties, are not open to this observation; but assuming that the father was perfectly acquainted with the contents of the deed before he executed it, to permit him to impeach it upon matters of fact not put in issue by him would be contrary to the established rules of courts of equity, and inconsistent with the most obvious principles of justice. Some of the grounds relied upon on behalf of the defendant are of a middle character, arising out of facts put in issue, it is true, but for a totally different purpose: such as the instructions and draft of the deed proved by Mr. O'Connor. These the plaintiff put in issue to disprove the defendant's statement, that he conceived the deed to be only a security for the expenses of the commission; but the circumstances under which those instructions were given and those drafts prepared were not put in issue; the transaction not being impeached upon any statement connected with that transaction. No opportunity therefore was afforded to the plaintiff to explain what may now seem to require explanation, or to prove additional facts where the information may appear defective. I should, therefore, have thought that any suspicions arising from so much of the