Marston v Downes and Wife, Executrix of Vaughan
| Jurisdiction | England & Wales |
| Judgment Date | 21 March 1834 |
| Date | 21 March 1834 |
| Court | High Court |
English Reports Citation: 172 E.R. 1285
IN THE COURTS OF KING'S BENCH, COMMON PLEAS AND EXCHEQUER
Shropshire Assizes (Civil Side), before Mr Justice Patteson. March 21at, 1834. marston r downes and wife, executrix of vaughan (In an action against a feme covert executrix and her husband plena adnnntstramt (a)1 For the report of this case we are indebted to the kindness of one of the learned counsel engaged in it. (a)2 See the cases of Everett v. Lowdhatn, ante, vol v. p 91 ; Beamon v. EHtce, ante, vol. iv. p. 585, and the authorities there cited. MABSTON V. DOWNES 6 CAB. & P. 312. was pleaded It appeared that the husband who was not executor, paid debts to more than the amount of the assets ; but it appearing, that, before he ao paid them, he had raised a sum of £1400 by mortgage of lands, under a power given to him by a deed executed by the testator m his lifetime, for the purpose of paying the testator's debts, it was left to the jury to say whether he paid the debts out of the assets in the hands of his wife, or out of the sum so raised Equitable assets, when they come into the hands of the executor in money, are legal assets. What a mortgagor, in treaty to raise money, says to the attorney of the mortgagee, is not a privileged communication. In an action against a mortgagor, the attorney of the mortgagee, who has the mortgage deed, cannot be compelled to produce it, if he objects to do so , nor can he be compelled to give evidence of its contents ; but he may be asked for what purpose the money was raised ; and secondary evidence may be given of the contents of the mortgage deed ) [Subsequent proceedings with annotations, 1 A & E 31.] Assumpsit on a promissory note, made by the defendants' testator, and payable by instalments. Pleas-first, general issue ; and, second, plene admimstramt Mrs Downes was the executrix of Mr Vaughan, but her husband was not his executor ; and it was opened on the part of the plaintiff, that Mr Vaughan in his lifetime had executed a deed, by which Mr Downes was empowered to raise money by mortgage of lands to pay the debts of Mr Vaughan , and that a sum of £1400 had been raised by Mr. Downes , and that certain debts having been paid by him, the executrix would have sufficient assets to pay the plaintiff [382] To prove this, Mr. Watson was called He stated that Mr Jones had acted as the attorney of Mr. Downes in a negotiation for the raising of money, and that he...
To continue reading
Request your trial
-
Boyle v Wiseman
...Geneml v. HcuUojf (10 Exch. 84), [Paike, B., referred to Hunter v. Leathley (10 B. & C. 858) Alderson, B , to Marston v. Downes (6 Car. & P. 381) ] Shee, Serjt. Bramwell, and Badeley shewed cause First. Secondary evidence of the contents of the letter in question was not admissible. There i......
-
Newton v Chaptlin
...to resort to secondary evidence. [Maule, J. In effect, you say that he had used due diligence.] Precisely so. In Marston v. Downes (6 C. & P. 381), where, in an action against a mortgagor, the attorney for the mortgagee, who had the mortgage deed, declined to produce it, Patteson, J., allow......