Girdlestone against Allan
| Jurisdiction | England & Wales |
| Judgment Date | 16 November 1822 |
| Date | 16 November 1822 |
| Court | Court of the King's Bench |
English Reports Citation: 107 E.R. 24
IN THE COURT OF KING'S BENCH.
S. C. 2 D. & R. 150; 1 L. J. K. B. O. S. 18.
giedlestone against allan. Saturday, November 16th, 1822. The 17 G. 3, c. 26, s. 4, is not imperative on the Court, but it is in their discretion either to vacate the securities given for an annuity in case of a violation of that clause of the Act, or to do so on certain terms, or to refuse to do so, according to the circumstances of each particular case. [S. C. 2 D. & E. 150; 1 L. J. K. B. 0. S. 18.] Marryat had obtained a rule to shew cause why the indenture whereby the defendant had granted an annuity of 10501. to the plaintiff, and the bond and warrant of attorney given to secure the same, should not be delivered up to be cancelled, and the judgment entered up on the warrant of attorney be vacated. The ground of the application was, that part of the con-[62]-sideration money for the purchase of the annuity had been returned to the plaintiff, contrary to the statute 17 G. 3, c. 26, s. 4. It appeared, that the plaintiff, who was an attorney, and in partnership with two others of the name of Bellamy, had negociated the annuity for the defendant, and had ultimately, in conjunction with one James Watson, become the grantee of it himself. The consideration money was duly paid, and the defendant then repaid to the plaintiff the amount of the bill of costs of the plaintiff and his partners for procuring the annuity. The bill contained the following charge. " Fee on negociating the annuity, and for many letters to you and Mr. Corfield, and attending on Mr. Watson thereon, at 10s. per cent., 351." The affidavits in answer negatived all fraud on the part of the plaintiff, and stated, that the bill was bona fide for work done for the defendant, and the charges fair and reasonable ; and that the money returned by the defendant was not appropriated to the plaintiff, but carried to the general funds of the firm, and that no part of it was received by Watson at all. On shewing cause, the plaintiff offered to reduce the annual payment to 7001.; and the only question was, whether it was imperative on the Court to vacate the securities, or discretionary with them to refuse to do so on the terms offered. Scarlett and Campbell shewed cause, and contended that this was an application to the discretion of the Court; and in support of that position they referred to Barber v. Gamson (4 B. & A. 281), and the cases there cited. [63]...
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