CASES ARGUED AND DETERMINED IN THE Court of COMMON PLEAS, AND OTHER COURTS, IN Michaelmas Term, In the Second Year of the Reign of WILLIAM IV. 1831. DEVENOGE V. BOUVERIE. Nov. 2. THE Plaintiff had obtained a rule nisi for the De- An annuity fendant to produce, and for the Plaintiff to inspect deed, of which and take a copy of, an indenture between the Plaintiff counterpart, and Defendant, bearing date October 11th, 1814. was placed in the hands of R. received the By this deed the Defendant, in consideration of 650l., R., as agent had granted an annuity to the Plaintiff of 100l. a year; for grantor and there being no counterpart, the deed was, as the and grantee. Plaintiff deposed, placed in the hands of one Riley, the annuity for solicitor concerned for the Defendant and on behalf of grantee. The grantor redeemed the annuity by paying the amount of the purchase money to R., who, without express authority from the grantee, delivered the deed to grantor to be cancelled. R. having absconded without paying the grantee, and the grantee having sued grantor for arrears, Held, that he was entitled to call for an inspection of the deed. VOL. VIII. B all 1831. DEVENOGE V. all parties, on an understanding that he should receive the annuity on the part of the Plaintiff. In 1816 the Defendant redeemed the annuity, by BOUVERIE. paying the amount of the purchase-money into the hands of Riley, when Riley delivered up the deed to him to be cancelled without any express authority from the Plaintiff. Riley never disclosed this to the Plaintiff, but continued to pay the annuity till 1830, when he absconded; and the annuity being no longer paid, the Plaintiff commenced this action on the deed. On the part of the Defendant it was sworn that the deed was prepared by Riley, and placed in his hands as agent of the Plaintiff, and not as solicitor of the Defendant. Merewether Serjt., who shewed cause, contended that this was not a case in which the Court would summarily assist the Plaintiff. The deed was lawfully in possession of the Defendant, upon payment of the purchase-money to the Plaintiff's agent, who had authority to receive it, as might be inferred from the fact of his holding the deed, and receiving the annuity for the Plaintiff. The parties being both innocent, potior est conditio possidentis; and the rather, as there had been laches on the part of the Plaintiff, in not watching more closely the conduct of his agent. Wilde Serjt. The laches is on the part of the Defendant, in redeeming the annuity without communication with the principal, or requiring his written discharge. Riley held the deed as trustee for both parties. In his hands the Plaintiff would have been entitled to an inspection; and the Defendant having obtained the deed without authority, cannot now deprive the Plaintiff of his right. TINDAL C. J. It would be of no advantage to the Defendant if the Court were to discharge this rule: a little evidence would be sufficient to launch the Plaintiff's case; and if he fell into a variance, it would probably be of such a nature as a Judge might at once correct under the provisions of the late act. The case, however, falls within the ordinary rule, which entitles a party to the inspection of a deed placed in the hands of one as trustee for several. Although the Defendant denies that Riley was an agent for him alone, it is not denied that he was agent for both parties, and that agrees with the probabilities of the case; for there was but one part of the deed, and it was probable that it should be held for the use of both. But take it that Riley was agent for the Plaintiff alone: it is not shewn that he had authority to receive the redemption money, or to surrender the deed; the Defendant, therefore, cannot withhold a deed which he has obtained without authority. The want of caution is rather on the side of the Defendant, in paying without any regular discharge from the Plaintiff, than on the part of Plaintiff, who had no reason for enquiry as long as he received his annuity regularly. GASELEE J. I think the rule ought to be made absolute. It is clear that Riley was the agent of the Defendant; for the deed was prepared on his part by Riley, and it never came to the hands of the Plaintiff. BOSANQUET J. According to the well established practice, the Plaintiff is entitled to the inspection of this deed. Both parties were interested in the deed, of which only one part was executed, and that part was placed in the hands of a third person, as agent for both. It has now come to the hands of the Defendant, as it is suggested, by his redeeming the annuity; but whether 1831. DEVENOGE บ. BOUVERIE. 1831. DEVENOGE he obtained it with or without the authority of the Plaintiff, is the question to be tried by a jury. v. BOUVERIE. ALDERSON J. Concurring, the rule was made Absolute. Nov. 3. A fine on paper from Jamaica, where no parchment could be procured, allowed to pass, being copied on parchment and attached thereto. KING, Demandant; GIBSON, Deforciant. THIS 'HIS was a fine from Jamaica on paper, and on the margin of the acknowledgment it was signified that no parchment could be procured. Wilde Serjt. moved that the fine might pass, although the practice of the Court required that it should be engrossed on parchment. In many cases the Court had departed from its strict rules where circumstances rendered the observance of them impracticable; as in Seton v. Sinclair (a), where the affidavit of due acknowledgment was not made by an attorney, there being no attorney for the party to resort to; and in Price, demandant, Williams, tenant (b), where there was no notarial seal. Per Curiam. Let the fine be copied on parchment, and the paper being attached, it may pass. (a) 2 W. Blacks. 880.. (b) 4 Taunt. 573. WILLATTS v. JAMES KENNEDY. 1831. Nov. 3. indebted to that Plaintiff had been appointed by the Court of liable to pay Plaintiff when requested; that in consideration of the premises, and that the Plaintiff as THE HE Plaintiff had obtained a verdict upon the second Declaration, count of his declaration, which stated that Charles that C. K. was Kennedy, before and at the time of the making of the the firm of promise and undertaking of the Defendant thereinafter B. and S.; next mentioned, was indebted to certain persons, commonly called and known by the style and firm of Boeme and Smout, in a certain sum of money, to wit, 251. 2s., Chancery reto wit, at, &c.; that the Plaintiff, before and at the ceiver of the time of the making of the said promise and undertaking, debts of the firm, whereby and while the said C. Kennedy was so indebted as afore- G. K. became said, had been appointed by the High Court of Chancery receiver of the debts and monies then due and owing to the said firm, to wit, at, &c. by means whereof the said C. Kennedy then and there became liable to pay to him, the Plaintiff, as such receiver, the said sum of money so by him the said C. Kennedy due to the said firm as aforesaid, when he, C. Kennedy, should be thereunto requested, to wit, at, &c.; and thereupon, and whilst the Plaintiff was such receiver as aforesaid, and the said C. Kennedy was so liable as aforesaid, to wit, on, &c. at, &c. in consideration of the last-mentioned premises, and that the Plaintiff, as such receiver as aforesaid, at the special instance and request of the Defendant, would not adopt any legal proceedings against the said C. Kennedy for the recovery of the said sum in which the said C. Kennedy was so indebted to the said firm as aforesaid, for a period of two months thence next following, to wit, until the 25th day of January, which should be in the such receiver would give C. K. two months' time to O pay, Defendant promised to pay in case C. K. omitted to do so within that time. Breach, omitted, and that Defendant never paid: that C. K. Held, on arrest of judgment, that sufficient authority appeared for the Plaintiff to contract and sue, and sufficient consideration for the Defendant's promise. |
