Heath and Others v Hall and Porter
| Jurisdiction | England & Wales |
| Judgment Date | 02 May 1812 |
| Date | 02 May 1812 |
| Court | Court of Common Pleas |
English Reports Citation: 128 E.R. 355
Common Pleas Division
by will and affidavit having been abandoned, it was unnecessary to memorialize it. In like manner, the 101. retained was never intended to be retained permanently, but only till a specific purpose was answered, and that purpose having been dropped, and the sum retained having been paid over to the Defendant before the enrolment, the transaction was of so transitory and nugatory a nature, that it was unnecessary to mention it in the memorial. Lee too, who could have explained the transaction, was dead ; end after a party has lain by for the death of the grantor's agent, the Court will not entertain an application of this sod. Onelow, in support of his rule. No case has decided, that if an agent dies, therefore the grantor shall be without relief. Besides, Young and Roberta are alive, though Lee is dead, and they might explain the matter if it were capable of explanation. [Mansfield C. J. Ro-(3219-berts is more the grantor's agent than the grantee's.] The charge of three guineas for the judgment was a colourable charge, and was extortion ; for judgment was ever entered. This retention is within the 4th section, which avoids the securities if money be retained "upon any pretence whatever." The laying the money on the table by Mrs. Vaughan was not a payment within the meaning of the act. Lee's was the hand that ultimately paid it, hut the deeds and memorial state it as paid by the grantee. The grantee retained the will, which was a security, though she gave up the 101, MANKFIELD C. J. This is a case certainly of a new sort ; Mr. Lee, if he was alive, ought to pay all the costs, and pay to Mrs. Vaughan, on account of his misconduct, all the loss she has sustained in consequence of it. He requires a will, a very improper security, and the moment after Miss Mackenzie bad given it, she might have revoked it; but as long as the will did remain, it was an additional security, and ought to have been mentioned in the memorial. Miss Mackenzie, although she had not made the affidavit, which Mr. Ford very properly refused to have sworn before him, yet might think herself bound in honour not to revoke the will : be that as it may, while it continued unrevoked, it was a part of the security. I have read the 4th section, and, it seems that this sum of 101, was not money retained within the meaning of that section, for it means a retaining for the benefit of the person...
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