Lady Emily Foley v Fletcher and Rose
| Jurisdiction | England & Wales |
| Judgment Date | 10 November 1858 |
| Date | 10 November 1858 |
| Court | Exchequer |
English Reports Citation: 157 E.R. 678
IN THE COURTS OF EXCHEQUER AND EXCHEQUER CHAMBER
S. C. 28 L. J. Ex. 100; 5 Jur. (N. S.) 342; 7 W. R. 141. Applied, Scoble v. Secretary of State for India, [1903] A. C. 304. Referred to, Direct United States Cable Company v. Anglo-American Telegraph Company, 1877, 2 A. C. 412; Clerical, Medical and General Life Assurance Society v. Carter, 1888, 21 Q. B. D. 339; affirmed 22 Q B. D. 444, Chadioick v. Pearl Life Insurance Company, [1905] 2 K. B 514.
lady emflt foley v fletcher and rose. Nov. 17, 1858.-F., being seised in fee of one moiety of certain mines, sold her share for 45,0001, pay.ible 33851. down and the residue by half-yearly instalments of 7681 11s. 8d during a period of thirty years: Held, first, that "the purchaser was not empoweied, by 16 & 17 Viet c 34, s. 40, to deduct income tax from the instalments -Secondly that the instalments were not chargeable with income tax under the words " annuities or other annual profits and gains" in Schedule (D ) of the 16 & 17 Viet c 34; or under the words " annual payments, payable as a personal debt or obligation, by virtue of any contract," in the 5 & 6 Viet. c. 35, s 102, such instalments being the payment of a debt, and not being profits and gains, and therefore not within the purview of the Acts. A declaration stated, that the defendants by indenture covenanted with plaintiff to pay her certain monies by the several instalments and at the several times, and subject to the provisoes and agreements, and in manner thereinafter expressed} viz. the sum of 7681. on every 24th day of December in each year, until, &c , and in case either of the instalments of 7681. should not be paid upon the day appointed for payment, or within one calendar month next after the same day, then the defendants should upon demand pay to the plaintiff interest upon the instalment, to be computed from the 24th of December. Breach that though the 24th of December had elapsed the defendant had not paid an instalment Plea. That by the indenture it was provided, that no instalment, payable under the covenants therein contained, should be recoverable or capable of being enforced, nor should any proceeding for that purpose be commenced, till after the expiration of one calendar month from the day when the same should become payable under the covenant, nor should any interest become payable in respect thereof till the expiration of such calendar month from such day, and that one calendar month from the day on. which the 3H.&N. 770. LADY FOLEY V. FLETCHER 679 instalment became payable had not expired before suit. Held, that the covenant was qualified by the proviso, and that the plea was good. [S. C. 28 L. J. Ex. 100 ; 5 Jur. (N. S.) 342 ; 7 W. R. 141. Applied, Scoble v. Secretary of State for India, [1903] A. C. 304. Referred to, Direct United States Cable Company v. Anglo-American Telegraph Company, 1877, 2 A. C. 412; Clerical, Medical and General Life Assurance Society v. Carter, 1888, 21 Q. B. D. 339; affirmed 22 Q B. D. 444, Chadioick v. Pearl Life Insurance Company, [1905] 2 K. B 514.] The declaration stated that by indenture between Sir F. Scott of the first part, the plaintiff of the second part, the defendants of the third part, and W. Matthews and W. Hatton of the fourth part; reciting that Sir F. Scott waa seised in fee of one moiety and the plaintiff of the other moiety of certain buildings, lands and mines therein described, &c.; and reciting that the defendants were partners [770] in the business of coal and iron masters, and in the said buildings, lands and mines; and that Sir F. Scott and the plaintiff had agreed with the defendants for the sale to them of the buildings, lands, mines, colliery, engines, and plant for 99,0001.; and that the buildings, lands, mines, &c, should be conveyed to Matthews and Hatton upon the trusts therein declared : It was witnessed, that in consideration of 67701., before the execution of the indenture paid by the defendant to Sir F. Scott and the plaintiff in moieties, and of 92,2301. residue of the sum of 99,0001., to be paid by the several instalments therein mentioned, Sir F. Scott and the plaintiff did grant, release and convey, and the defendants confirmed, to Matthews and Hatton, the buildings, lands, mines, &c., to the use of Matthews and Hatton for ever, upon certain trusts, &c ; and the defendants did by the said indenture covenant to pay to Sir F. Scott 46,1151., being one equal half part, &c.; and did also covenant with the plaintiff, that the defendants would pay, or cause to be paid, to the plaintiff 46,1151, being the other equal moiety or half part of the said sum of 92,2301., by the several instalments and proportions, and at the several times, and subject to the provisoes and agreements, and otherwise in the manner thereinafter expressed, viz : the sum of 7681. 1 Is. 8d. on every 24th day of June and 24th day of December in every year after the year of our Lord 1854, until and inclusive of the 24th day of December, 1884 ; the first instalment to commence on the 24th of June, 1855, and subject nevertheless to such eventual acceleration or variation of the time or times of payment as therein mentioned. And in case either of the instalments or sums of 7681 11s. 8d. should not be fully paid by tte defendants upon the day appointed for payment thereof, or within one calendar month next after the same day, and should not have been previously satisfied, [771] pursuant to any of the provisions of the indenture, then the defendants should upon demand, or in default of demand, pay to the plaintiff interest at the rate of 41. per cent, upon the instalment, or upon each such instalment which for the time being should be in arrear and unpaid , and such inteiest should be computed from the 24th of June or 24th of December, as the case may be, upon which the instalment should have become payable, or, as the case might require, should be computed from the then last preceding day for payment of interest upon the instalments so in arrear; and that every payment thereinbefore covenanted to be made should be so made without any deduction, except in respect of any property or income tax which ought in law to be so deducted from such interest. Averment: that the acceleration or variation of the time of payment depended upon events which had not happened Breaches : -First, that the 24th of June and the 24th of December in the years of our Lord 1855, 1856 and 1857, had elapsed, but the defendants had not paid the six instalments due. Secondly, that though the instalments were not paid on the appointed days respectively or within one calendar month after those days respectively, the defendants had not paid interest, &c. Second plea. As to the instalment due on the 24th of December, 1857, that by the said indenture it was provided and agreed that no instalment or other principal sum for the time being payable under or pursuant to the covenants and provisions therein contained, should he recoverable or capable of being enforced, nor should any proceeding for that pin pose be commenced until after the expiration of one calendar month from the day upon which the game instalment or sum should have become payable, under or pursuant to the covenants and provisions therein contained; nor should any interest accrue or become payable in respect [772] thereof until the expiration of such calendar month : and that one calendar month from the day upon which 680 LADY FOLEY V. FLETCHER 3 H & N 113. the last mentioned instalment or sum became payable, under ot pursuant to the covenants and provisions contained in the said indenture, had not expned before this suit. Fourth plea. As to 2361. 7s 8d , parcel of the instalments, that in making payment of the said instalments respectively, the defendants deducted and retained out of the said instalments respectively divers sums of money, amounting in the whole bo the sum of 2361. 7s. 8d., being the amount of the rate of duty which at the times when the said instalments...
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