Cook v Fountain
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1818 |
| Date | 01 January 1818 |
| Court | High Court of Chancery |
English Reports Citation: 36 E.R. 984
Chancery Division
984 COOK V. FOUNTAIN 3 SWANS, 586 (App.). Jo06 Salter, Thomas Lane, Robert Brooke, Thomas Salter, Thomas Claphamson, and Jonathan Hooper, creditors of Nehemiah Winter, deceased, upon bottomry bonds, Plaintiffs ; Phtie Winter, widow, and John Cook, gentleman, executors of the said N. Winter, Defendants. Between Ambrose Moore, req., Charles Brime, James Goodchild, John Merry, and James Farnaby, creditors of the said N. Winter, deceased, on bottomry bonds, Plaintiffs, and the said Phcehe Winter and J. Cook, executors of the said N. Winter, and others, Defendants. The matter of the several exceptions taken by the .Defendants, Winter and Cook, to two several reports made in these causes by Mr. Allen, one of the masters of this Court, dated respectively the 8th of June last, coming this present day to be argued before the Right Honourable the Lord fligh. Chancellor of Great Britain, in the presence of counsel for the said Defendants and Plaintiffs in both causes, and the first and second exceptions to both the said reports being opened, upon debate of the matter, and ' hearin, an order of the 11th of October last for setting down the exception taken by the said Defendants in both causes to be heard at the same time ; ò the decree in the cause Abbis and others v. Winter anti others, dated the 16th day of July 1731 : the decree in the cause Moore and others v. Winter and others, dated the 30th July 1731 ; the Master's report made in the cause Aphis v. Winter, dated the 8th of June 1733, and the schedules thereto ; the objections taken by the Defendant to the said Master's report ; the bill exhibited by the Plaintiffs, Abbis and others, against the Defendants; and the bill exhibited by Sir John Eyles and others against the Defendants, read ; and what was alleged on both sides ; His Lordship held the first and second exceptions to both the said reports to be insufficient, and cloth order the same to be overruled : and the two third exceptions taken by the said Defendants to both the said reports being opened, and the said Defendants' third exception to the report made in the cause wherein the said Moore and others are Plaintiffs, being for that the said Master hath certified that the money reported to be remaining in the Defendants' hands, and to be liable to the Plaintiffs' demands in that cause, is the same money which he hath mentioned in his report made in the said Abbis's cause, and to be liable to the Plaintiffs' demands in that cause, whereas the said Master should have certified that the said money ought to be applied in satisfaction of what was reported due to the Plaintiffs in each of the said causes, the said money not being near sufficient to discharge what is found due to the Plaintiffs in the said other cause alone, which is prior to the cause wherein the said Moore and others are Plaintiffs, and by reason thereof the said Defendants are in danger of being doubly charged with the saute sum, upon debate of the matter, and hearing the decree made in the cause wherein the said Moore and others are Plaintiffs, and Winter and others Defendants, and the report made in the cause wherein the said Moore and others :ire Plaintiffs, read, and what was alleged on both sides, His Lordship held the third exception taken by the said Defendants to the report made in the said .Abbis's cause, to be insufficient, and doth order that the same be overruled ; and held the third exception taken by the Defendants to the report in the said Moore's cause, to be sufficient, and, doth order that the same do stand and be allowed ; and that the Plaintiffs, ,Abbis and others, have the R5 deposited by the Defendants with the ' re,istrar, on filing the said exceptions to the report made in that cause, and that the Defendants do take back the £0 deposited by them on filing the exceptions to the report made in Moore's cause.ùReg. Lib. A. 1732, fol. 204. COOK n. FouNTAEN.( I) The hill prayed that the Defendant might be compelled to deliver all the deeds, evidences, and writings concerning the estate of John, Cook deceased, and that the Plaintiffs might be relieved against several actions at law brought, and distresses taken by the Defendant upon a rent-charge, and two lessees of F. and M. granted to him by John Cook ; and that the rent-charge and leases, and all other leases and estates made to bins by John Cook might be surrendered and delivered up to be cancelled. 1st July, 27 Car. 2, 1672. In the ease between Coal, and Fountain, which was largely heard this day, the Defendant took two exceptions against the evidence of Guavas for a witness. [586] 1. The suit was to avoid a rent-charge of £1000 per annum, and a lease of Farnam royal, granted by Cook the testator on pretence of a trust : now Guavas, who would prove this trust, was an executor to Cook, and so endeavours to make this liable to debts but this was overruled ; because the lease will not be assets however, for the legal estate being in a stranger upon a trust to attend the inheritance, the Chancery will not make this assets in equity ; but if such a term had vested in the executor, and so been assets in law, the Chancery would have severed the attendancy, and not taken away assets in law until debts paid, &c. 2. The lease had a covenant that Mr. Fountain should quietly enjoy, and there were six shillings and two-pence more to be paid to the king than Mr. Cook had reserved to himself to discharge it with, so there was a likelihood of damage to be made good by the executor ; but the executor having no assets beyond £4000 which he has paid out, this was overruled ; although it was replied that an executor without assets is liable to be sued, though not to pay ; for notwithstanding this objection he was heard at law. Then it was further urged that Guavas sues Fountain in the Exchequer for all the money he received from the testator, and would make that a trust too ; to which it was answered, that this does not snake him an incompetent witness, though it shows him to be an earnest one, unless he had recovered there, and then that money would be assets ; in the mean time six shillings and two pence per annum seem no such great matter as should bias the witness. Lord Nottingham's MSS. 424th May, 28 Car. 2, 1676. In the great case between Cook and Fountain, the Court did this day deliver their opinion. [587] The Lord Chief Justice North began, and held the leases to be a trust ; for if they were intended as a bounty to Mr. Fountain, why were they not a present bounty in the enjoyment It is plain all the evidences of enjoyment went with Mr. Cook, and ought to prevail as evidence of a trust ; for the kindness between Mr. Cook that died and Mr. Fountain, rather fortifies than weakens the presumption of a trust ; for men usually trust them most whom they love best : uses at common law were nothing else but secret confidences ; but then it is observable that the law did not put the proof of the trust upon him who claimed the secret confidence, but it put the proof upon him who claimed the estate, to show for what consideration lie held it, else a use did arise to the donor. The rent-charge, he said, stood upon other measures, for there a bounty was intended, and Mr. Fountain is not to be blamed that he did not sue for it in Mr. Cook's lifetime ; for to commence a suit against his benefactor had been ungrateful ; and the Plaintiff's counsel admits it was a gift at first, but would have it afterwards a trust to be discharged by other provisions ; wherein he distinguished what he believed from what he would advise ; he seemed to believe it might be so, for else lie could not choose but wonder why Mr. Fountain never brought therrent to account, why Mr. Cook should be so very preposterous in his bounty, as thus to encumber his estate and his person, why Fountain made privy to all the diminutions of the security, why the letter to provide for Andrew Fountain, &c., did...
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