Mattock, Executor of Southwood, against Kinglake

JurisdictionEngland & Wales
Judgment Date26 April 1839
Date26 April 1839
CourtCourt of the Queen's Bench

English Reports Citation: 112 E.R. 1039

IN THE COURT OF QUEEN'S BENCH

Mattock, Executor of Southwood, against Kinglake

S. C. 1 P. & D. 46; 1 W. W. & H. 667; 8 L. J. Q. B. 56.

mattock, Executor of Southwood, against kinglake. Tuesday, November 13th, 1838. S., the lord of a manor, appointed K. by parol to the offices of steward of the manor, and clerk of the castle therein; K., in consideration of S. permitting him to hold the offices at the will of S. as lord, promised S. to pay, out of the fees of the offices, an annuity to G. during G.'s life, for the payment of which S. had bound himself, his heirs and executors, and to indemnify S. from such payment, so long as K. should execute the offices either by himself or by deputy to be approved of by S. Afterwards S., as lord, granted the same office to K. by deed-poll (not reciting any special consideration) for K.'s life, and died. Held that K. remained liable to pay G.'s annuity; that the consideration for K.'s promise in that respect still continued; that the grant by deed did not affect the parol contract on his part; and that, although, since the death of S., K. could not execute the office by deputy to be approved by him, it was sufficient that K. could execute it in person. [S. C. 1 P. & D. 46; 1 W. W. & H. 667; 8 L. J. Q. B. 56.] Assumpsit. The first count of the declaration stated that, before and at the time of the promise, Thomas Southwood, the testator, was lord of the manor of Taunton (a) See, as to pleas of judgment in another Court, Reg. Gen. Hil. 4 W. 4, 8. 5 B. & Aid. xv. As to pleas of judgment in the same Court, 2 Tidd's Pract. 742, 9th ed. (c) 9 East, 157. As to the effect of a prout patet (which was pleaded in the present case), see Lord Ellenborough's judgments in Purcell v. Macnamara, 9 East, 160, and in Phillips v. Bacon, 9 East, 304, and the judgment of Abbott C.J. in Stoddart v. Palmer, 3 B. & C. 2. 1040 MATTOCK V. KINQLAKB 8 AD. * E. 796. Dean in Somersetshire: and that there were, and immemorially had been, attached and incident to the said manor certain offices of great profit and emolument, viz. the offices of clerk of the caatle of Taunton, and steward of the said manor ; and the right and power of appointment of persons to fill the said offices then was, and immemorially had been, vested in the lord of the said manor for the time being, who had [796] power to exercise, and exercised, the said right by the appointment of such person as to the said lord seemed fit to hold the said offices, either by patent for the life of the person so appointed, or during the will and pleasure of the said lord for the time being, as to the said lord seemed meet. That, before and at the time of the making of the bond after-mentioned, John Henry Gell held the said offices under an appointment by patent from the lord for Gell'a life, and was in the possession, receipt, and enjoyment of the emoluments, fees and profits. That Southwood had applied to Gell to surrender his interest in the offices and emoluments into the hands of Southwood, which Gell had agreed to do on Southwood's securing to him by hia bond an annuity of 501. for Gell's life. That Southwood agreed so to do, and, in pursuance of the premises, executed and delivered to Gell his bond in 5001. conditioned for the payment of an annuity (as above described) by Southwood, his heirs, executors, &c., to Gell or his assigns; and Gell accepted such bond, and surrendered to Southwood, as lord, all hia right and claim to the offices, and to the emoluments, &c.; and the offices became vacant, and the right of appointment vested in Southwood, then being, and as, such lord of the manor. That afterwards, to wit on, &c., " in consideration of the premises, and also in consideration of the said Thomas Southwood's permitting the said defendant to hold the said offices at the will of the said Thomas Southwood as, and being, lord of the said manor, he the defendant promised the said Thomas Southwood in his life-time to pay out of the fees of the said offices the said annuity of 501. so as aforesaid secured by the said bond of the said Thomas Southwood to the said John Henry Gell) by the descrip-[797]-tion of Mr. Gell) during the life of the said John Henry Gell and to indemnify the said Thomas Southwood from the payment of the said annuity so long as he, the defendant, should execute the said offices either by himself or deputy to be approved of by the said Thomas Southwood." Averment, that Gell is still living, and that defendant from the time of his appointment hitherto has continually executed the offices and received the fees, profits, and emoluments to his own use. Breach, nonpayment of the annuity for four years last past, since the death of Southwood (though the fees have exceeded 501. a year), and neglect to indemnify plaintiff, who, by reason of such non-payment, was compelled, as executor, to pay the arrears. Fourth plea. That, after the making of the promise, and in Southwood's life-time, viz. on, &c,, Southwood by his deed poll, bearing date, &c. (profert), " for divera good causes and considerations him in that behalf specially moving, gave and granted to the defendant the offices of steward and clerk, or the clerkship of his the said Thomas Southwood's castle, town, and lordship or manor of Taunton and Taunton Dean in the county of Somerset, with all and singular the hundreds and members of the aaid caatle, town, and lordship or manor, to have, occupy, and exercise the offices aforesaid to the defendant during his the defendant'a life, and to receive for exercising the same all and singular the profits, commodities and emoluments to the said offices in any manner belonging or appertaining ; that defendant thereupon than accepted arid agreed to the said deed poll and to the grant of the said offices therein contained; and that, from the time of the making of the [798] said deed poll hitherto, he, the defendant, has exercised the offices therein mentioned, being the same offices as in the declaration mentioned, under and by virtue of the grant in the said deed poll contained, and under no other appointment, right, title or authority whatsoever." Verification. Demurrer, assigning for causes that the plea attempts to raise an immaterial iasue; for that the matter of the plea, if true, is compatible with the liability alleged in the declaration ; that the plea does not traverse, or sufficiently confess and avoid, the count pleaded to, for that it does not shew how plaintiff has been discharged from the promise declared upon, or that he has ceased to execute the offices ; that the interest of defendant in the offices is not shewn to have determined at the time of the making of the grant pleaded ; and that the grant, admitting that it applied to the aaid offices, operated merely by way of confirmation, not as creating any new estate or interest. Joinder in demurrer. SAD.fcE.799. MATTOCK V. KINGLAKE 1041 Bere for the plaintiff. The plea furnishes no answer to an action...

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