Hill v Gomme
| Jurisdiction | England & Wales |
| Judgment Date | 24 December 1839 |
| Date | 24 December 1839 |
| Court | High Court of Chancery |
English Reports Citation: 40 E.R. 1021
HIGH COURT OF CHANCERY
3 MY. &CR.B03. HILLt'. GOMME 1021 [503] hill v. gomme. Nw. 22, 1838. A party aggrieved by an Order made by the Master, under the 3 & 4 W. 4, c. 94, s. 13, in a cause set down at the Rolls, has no right to appeal to the Lord Chancellor against the Order. This was a motion, by way of appeal, from an Order made by one of the Masters. Sir W. Home and Mr. G-. L. Russell took a preliminary objection to the motion, on the ground that the cause had been set down at the Rolls; and that, in conformity with the 12th of the Orders of the 5th of May 1837 (2 Mylne & Craig, App. vi.), no motion in such a cause could be brought on before the Lord Chancellor or Vice-Chaiicellor. That Order applied, in terms, to all interlocutory applications in a cause, and the present motion fell distinctly within that description. Mr. Wigram and Mr. Chandless, cmitra, referred to the thirteenth section of the Chancery Regulation Act (3 & 4 W. 4, c. 94), by which the jurisdiction was given to-the Master, and the right of appeal from him to the Lord Chancellor, Master of the Rolls, or Vice-Chancellor, whose decision was to be final; thereby taking away any further appeal. By that Act, as a compensation for the loss of the right of further appeal, the aggrieved party was allowed to select the Judge who was to review the Master's decision; and such a privilege could not be affected or destroyed by an Order of Court. This was not an interlocutory application within the meaning of the 12th Order of May 1837, or one to which that Order could ever be meant to apply. [504] the lord chancellor [Cottenham] said that, upon the construction now contended for, if a party chose to bring the motion before him, he should have no-power to send it to be heard by the Vice-Chancel lor. The meaning of the statute was that there should be an appeal to some one of the three Judges. That was all that the section said ; and a strict compliance with the provisions of the Order was-quite within the terms of the section, which only required that the Lord Chancellor, Master of the Rolls, or Vice-Chancellor should hear the application. It was obvious, that, if Mr. Wigram's construction of the statute were to prevail, the effect would be to send, or at least to put it in the power of parties to bring, all the trifling motions-of this kind, upon appeal from the Master's jurisdiction, to the Great Seal-a result which could never have been intended. The Act of Parliament gave this jurisdiction, but it did not compel the Court to exercise it; and the Twelfth General Order of May 1837 applied. He considered the objection to be well founded, and the application must, therefore, be dismissed, with costs.
English Reports Citation: 41 E.R. 366
HIGH COURT OF CHANCERY
S. C. 1 Beav. 540; 8 L. J. Ch. (N. S.), 350; 3 Jur. (O. S.), 744; 9 L. J. Ch. (N. S.), 54; 4 Jur. (O. S.), 165. See Green v. Paterson, 1886, 32 Ch. D. 107.
[250] hill?'. gommk. Ihe.. 12, 13, 24, 1839. [S. C. 1 Beav. 540 ; 8 L. J. Ch. (N. S.), 350 ; 3 Jur. (O. S.), 744 ; 9 L. J. Ch. (N. S.),. 54; 4 Jur. (0. S.), 165. See Grrr.n v. Patersim, 1886, 32 Ch. D. 107.] A., by deed, contracted with B., that, in consideration of 100 expressed to be paid to A. by B., he (A.) would maintain, educate, and apprentice B.'s child, a boy of five years, and that, if he had no child of his own, B.'s child should, in case of his attaining twenty-one years, have all his (A.'s) real and personal estate at his death, subject to a life interest for his widow. It appeared, from the circumstances of the case, probable that the apparent consideration of 100 was not, in fact, paid, or intended by either party to be paid, and that it was stated in the deed pro forma only. There was some evidence that the child wa at A.'s house after the date of the deed, but it appeared doubtful whether the child ever lived with A. in the manner provided in the contract, arid he soon after was residing with his father (B.), and the Court was satisfied that A. and B., by agreement between themselves, abandoned the contract, and that the status of the child had not been altered by anything done by A. in pursuance of the contract. Upon a bill filed by the child, after the death of A., Held, that the contract, having been abandoned by the contracting parties, could not be enforced by the child. Whether this Court would perform a contract by which a person, for a sum of money,, deprives himself of the possibility of realising property which he can dispose of by wiO, and thus destroys an active motive for bettering his condition in life, qiuti'e. Whether, if the contract had been so acted on by A. as to alter the status of the child, the child could have enforced the contract, rjwx-re. This case is very fully reported in the first volume of Mr. Beavan'a Reports, upon the hearing at the Rolls. (1 Beav. 540.) The Master of the Rolls having dismissed the bill, with costs, the Plaintiff appealed from his Lordship's decree. Mr. Richards and Mr. G. L. Russell for the Plaintiff. Mr. Tinney, Mr. Wigram, Mr. Chandless, Mr. Weld, Mr. Mylne, Mr. Armstrong, and Mr. S. Atkinson, for the respective Defendants. The Plaintiff's counsel referred to Dutton v. Pool (1 Ventr. 318), Doc, v. Knighf 5 MY. ft CR,261. HILL V. GOMME 367 (5 B. & C. 671), Exton v. Scott (6 Sim. 31), Mwless v. Franklin (1 Sw. 13), Grabb v. 6VaW (I Mylne & Keen, 511), Knatchbull v. Feurnliead (3 Mylne & Craig, 122), [251] Dyer v. Ztyer (2 Cox, 92), A'i/p/i v. At/pw (1 Mylne & Keen, 520), Martyn v. Himl (Cowp. 437), Lamjtlugh v. Lamphigh (1 P. W. Ill), Ellis v. Nimmo (1 LI. & Goo. temp. Sugd. 333), Colt/ear v. Counter of Mulgram (2 Keen, 81), Fifc/t v. Jimes (Rolls, May 1st 1829, unreported). The Defendant's counsel mentioned Ex parte Williams (Buck, 13, and the note to that case). Ex parte Peek (6 Ves. 602), Johnson v. Leyard (Turn. & Russ. 281), Sutton v. Chetwynd (3 Mer. 249), Colntan v. Sarel (1 Ves. jun. 50), Ellison v. Ellison (6 Ves. 656), Puhertoft v. Pulvertoft (18 Ves. 84), z parte Pye (18 Vea. 140), Edwards v. 7oMs (1 My hie & Craig, 226), Blake v. Leigh (1 Ambl. 306), Garrard v. iwrf Landerdale (3 Sim. 1, 2 Ross. & Mylne, 451), Stratford v. Zev/ AUbwrngh (1 Beatty, 228), fYozwr v. Marfe (2 Mylne & Craig, 459). the lord chancellor [Cottenham]. Much of the difficulty in which this case has been involved would, I think, be removed, if an accurate notion could be first formed of the situation of James Dean, against whose estate a specific performance of his covenant is sought. As against him, the bill is for a specific performance of a contract far the sale of all the real and personal estate of which he might be seised or possessed at the time of his death. The consideration for this was, nominally, so much of .100 as might remain after [262] maintaining and educating and placing out aa an apprentice a boy of five years old. No doubt it was possible that the child might die, and so those expenses might be saved; but, looking to the chances of a child of five years attaining twenty-one, and the necessary expenses of his maintenance and education, and of placing him out as an apprentice if he should live, it will be found that no part of the 100, if paid, could be referred to the purchase of the real and personal estate of James Dean, whatever it might be. It is, however, unnecessary to pursue this inquiry; because, if the cause turned upon the evidence of the fact of the 100 having been paid, I should be of opinion that the evidence not only did not prove that payment, but was strong to disprove it. It is, in the first place, proved that a money consideration formed no part of the original agreement between the parties; hut they were advised that the transaction must have the appearance of being founded upon a valuable consideration. It is not very probable that the parties should so far depart from their original agreement as to pay 100 for a contract which the other party was willing to execute for nothing; but it was the obvious consequence of the advice given, that it should be made to bear the appearance of some valuable consideration being paid. The fact of payment is directly in issue, and was known to be the foundation of the Plaintiff's title; but no evidence is given of the payment, except the receipt, which, under such circumstances, is of no value. It is, however, proved that no money was paid before the receipt was signed ; but if Thomas Hill's recollection of what took place nearly twenty years, before he made his deposition, be correct, John Hill afterwards said he believed that the business was concluded, except paying the money, and that he put his hand into his pocket, as if he were going to produce [263} the money when the witness left the room-a remark and act not inconsistent with the supposition that the 100 had been inserted at the suggestion of counsel, without any intention that it should be actually paid, as the parties may be supposed to carry on the farce up to the very act of payment. Supposing, however, that the money was paid, it is a bill for a specific performance of a contract to convey and assign all the real and personal estate. Freehold estate there was none; but there were leaseholds of which the Defendant Vaile became purchaser in 1828, without any notice of the Plaintiff's title, as he alleges, and there not being any proof of his having had any such notice. The rest of the property consisted of chattels and other things, for which a bill for a specific performance of a contract to sell would not lie. But suppose these objections not to exist, is it clear that this Court will decree a specific...
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