Barnesly v Powel
| Jurisdiction | England & Wales |
| Judgment Date | 18 July 1749 |
| Date | 18 July 1749 |
| Court | High Court of Chancery |
English Reports Citation: 21 E.R. 218
HIGH COURT OF CHANCERY
218 BARNESLY V. POWEL DICKENS, 131. barnesly v. powel. 15 Dec. 1747. Goods sequestered being insufficient to answer a duty decreed, the Serjeant at Arms revived. The Serjeant at Arms had gone after the defendant, and on his return a sequestration issued for not performing the decree. The defendant being a barrister, and constantly going the circuits, and the effects sequestered being insufficient to satisfy the decree, the Serjeant at Arms was revived. This was opposed as a double execution, but after solemn argument allowed: the commitment being to answer the contempt, the sequestration ad satisfaciendum.
English Reports Citation: 21 E.R. 479
LORD HARDWICKE, C.
START barnesly v. powel. 18 Dec. 1747. Lord Hardwicke, C. 3 Atk. 593, S. C. By the rule of the Court, the plaintiff is first entitled to sue out a commission to examine witnesses, and if the defendant hath an opportunity to examine his witnesses also, and doth not, he is not entitled to a new commission ; but if the plaintiff neglect to sue out a commission, the defendant may; and so it was laid down by the Lord Chancellor. See Minie v. Eaw.
English Reports Citation: 27 E.R. 1034
HIGH COURT OF CHANCERY
S. C. Ambl. 102; 1 Ves. sen. 119. See Allen v. M'Pherson, 1847, 1 H. L. C. 210, 213, 230. Over-ruled, Shaw v. Neale, 1858, 6 H. L. C. 581.
Forgery of a will. S. C. 1 Ves. sen. 119.
barnesly v. powel, July 18, 1749. [S. C. Ambl. 102 ; 1 Ves. sen. 119. See Allen v. M'Pherson, 1847, 1 H. L. C. 210, 213, 230. Over-ruled, Shaw v. Neale, 1858, 6 H. L. C. 581.] [Forgery of a will S. C. 1 Ves. sen. 119.] After a very long trial by special jury a verdict was brought in against the will; with an indorsement that it was grounded on forgery, and not on any defect in the execution. (See the decree and several proceedings at length, Supplement, p. 144, &c.) Upon the equity reserved it was argued for the plaintiff, that the trial had made an end of the question as to the real estate ; and the decree in the court of Exchequer, that the will was well proved from the plaintiff's consent, ought not to stand in his way ; for though this court cannot reverse it, they may decree, that it shall not be made use of against the plaintiff; and injunctions have been granted to the Exchequer, where it has clashed with this court. 1 Ver. 220. As to the personal estate, though this court cannot set aside the probate of the prerogative court, it may decree the executors, who have acted so ill as by an imposition upon the plaintiff, to get this consent to the admission of that, which is a forgery, to be trustees for the plaintiff; since by their iniquity they have prevented his getting redress in the Ecclesiastical court, where the probate is final, the time lor appeal being lapsed: but supposing it not so, the validity of a deed, as the consent by proxy is, cannot be tried there. In a late case where the defendant burned a will, in which was a legacy to the plaintiff, so that it could not be proved in the Ecclesiastical court (which cannot prove a will on loose parts of the contents of it) yet on evidence of there being such a will, and the defendant's destroying it, the court decreed the legacy to the plaintiff, as the defendant by his own iniquity had prevented the plaintiff from coming at it. So in Thyn v. Thyn ; and in cases where the party has not been destitute of a remedy, the court has declared deeds void for fraud ; and have at the same time considered the persons, in whom the legal estate vested, as trustees,, to prevent injustice to those, in whose favour the deeds were 1VES. SEN. 285. BARNESLY V. POWEL 1035 set aside. In Tucker v: Phips, July 10, 1746, the plaintiff's bill was as legatee under the will, which, it [285] was suggested, the defendant had unduly suppressed. The answer introduced another question of the sanity of the testator; which belonged properly to the Ecclesiastical court: yet his Lordship entered into evidence thereof; and being of opinion that the sanity was proved, would not put the parties to a suit in the Ecclesiastical court, but directed immediate payment of the legacy : citing there Lord Hunsdon's case, Hob. 109. And several instances might be put, where circumstances give this court a jurisdiction, which it had not primarily ; as spoliation, and therefore forgery will: although in Bransby v. Kerridge (7 Bro. P. C. 437, octavo edit.), the trust decreed by Lord Macclesfield was reversed by the Ijords, it is difficult to see upon what reasons : But in Eq. ad. it seems to be, because a trial was not first directed. Upon the will of one Roe, Sir Robert Jacob, who, when desired to write a will, had put himself in executor, was decreed a trustee. For defendant. The right to the real estate cannot be now disputed ; but the verdict must be confined to that; but as to the personal, neither the court or jury had any right to examine into it; nor could this court direct it. Bransby v. Kerridge shews this court ought not to inquire into fraud in obtaining a will of personal estate : which, if ever it could have been done, would have been done in Archer v. Mosse, 2 Ver. 8. In Paschal v. Pickering, May 7, 1746, the plaintiff and Mrs. Wiseman (the defendant's testatrix) were intitled to the whole of Lady Brumpton's estate : and the plaintiffs brought a bill, charging that there were two testamentary writings; in one of which Mrs. Wiseman directed a note due to her from the plaintiff, to be given up to the plaintiff: by the other she directed, that whatever became of a suit, which had been instituted for the personal estate, she gave it all to the plaintiff; which writings the defendant had concealed and torn : and as every thing should be presumed in odium spoliatoris. the plaintiff claimed the whole, and to be relieved against an action upon that note. The questions were, whether a remedy was not proper in another court 1 and supposing so, whether this spoliation was a ground to proceed on 1 His Lordship held, that the papers were both testamentary in their nature, and therefore proper for the Ecclesiastical court: that as to personal estate, it was determined in Bransby v. Kerridge, that this court had no right: and that as to spoliation, though the court has gone a great way ; yet there is no case where it has gone so far as to direct the enjoyment of personal estate on the foot of a will: that in the case of one Payne, where an interlineation appeared on producing the will, the Lords Commissioners would not determine it, but gave liberty to apply to the Ecclesiastical court. So his Lordship would not relieve, but retained the bill till proof in the Ecclesiastical court of those testamentary schedules. The present case would extend to that of insanity ; which in substance is forgery : and there are several instances, though unfortunate, [286] where a will has been found void for insanity as to real estate, and not as to personal ; which, if it be a defect in the law, wants the remedy of the legislature. Application may be in this case to the Ecclesiastical court; which may relieve by appeal to the Delegates, or commission of review, or by letters of administration ; for they have such power, as incident to their jurisdiction, to correct their own proxies if obtained improperly, and to relieve themselves as well as the party, from such gross imposition : so as they may set aside administration obtained by fraud, in concealing a will or a probate appearing forged. Nor is it ever too late; for no length of time can give a sanction thereto. The plaintiff's proceeding is on an inconsistent foundation, that the defendants, the executors, are intitled to the personal estate by a probate of a will as valid, which the former part of the decree determines to be forged. But the plaintiff cannot be intitled, unless an intestacy appears; which cannot appear, till tried in the Ecclesiastical court; nay, the contrary appears as two other wills, prior to the forged one, are in the answer set forth, wherein Powel is made residuary legatee; one in 1735, all in the hand-writing of the testator, and attested by him, but without witnesses : the other an unexecuted draft, without date, which is a sufficient testamentary schedule ; the benefit of which would be taken away by such an immediate decree, even from other legatees, who are not parties. No evidence appears that Powel colluded in forging that will; for he opposed it, till proved and established in the prerogative court: and as a consequence of that opposition was obliged to pay the costs of that suit in the Exchequer, by an annuitant under the will. Lord...
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