Parkhurst v Lowten
| Jurisdiction | England & Wales |
| Judgment Date | 09 March 1818 |
| Date | 09 March 1818 |
| Court | High Court of Chancery |
English Reports Citation: 35 E.R. 718
HIGH COURT OF CHANCERY
For subsequent proceedings see 3 Madd. 121; 2 Swanst, 194; 5 L. J. Ch. (O. S.) 120.
718 pakkhurst' v. lowteic imeb, 392, parkiiurst v. lowten, March 30, April 2, May 16, 1816. [For subsequent proceedings see 3 Madd. 121; 2 Swanst, 194; 5 L. J. Ch. (O.S.) 120.] B. a purchaser, under a decree, of the first presentation to a living of which A. is seised for life of the advowson, afterwards takes a conveyance from A. of the second presentation to the same living, and sells the first presentation to the present incumbent. To a bill by A. to set aside this transaction on the ground of fraud, praying a discovery, IS. puts in an answer, refusing to make the discovery required, as tending to subject him to forfeiture on account of simony. B. having afterwards died, the suit is revived against his executor, who is held entitled to the same protection that was claimed by B. William Barker Daniel, the Plaintiff in the original suit, being seised for life of the aclvowson of South and "West Haningfield, in Essex, [392] mortgaged the same to Sanderson. Bloxam, and Co., bankers, for securing to them the repayment of their advances, and executed a deed-poll, authorising them to sell the advowson, in case of non-payment. The mortgagees, afterwards, being unable to sell the advowson, filed a bill, and obtained, by consent, a decree for the sale of the next presentation, which was twice put up to sale accordingly, and bought in for the Plaintiff, Daniel. At last, on the 25th of February 1796, the presentation was a third time put up to sale under the decree, when Loioten, who had acted as the Plaintiff Daniel's solicitor in the conduct of the cause, and was, as the bill alleged, generally employed by him as his attorney in all his other transactions, became the purchaser for 4400. In June following, Loioten paid off the mortgage-money, and had a conveyance made to a trustee for himself, of the said presentation ; and, in the course of the next month, the plaintiff executed to Loioten a conveyance of the second1 presentation to the same living. The bill proceeded to state that, in July 1799, Loiden sold the first presentation for 8000, of which 2000 was paid to him at the time of sale, and the remaining 6000 secured by bond, payable, one half, on the induction, and the other half within six months after the induction of the purchaser to the said living ; that on the 25th of December 1800, the then incumbent died; and that thereupon the purchaser was inducted, and paid his purchase-money according to the tenor of the bond ; and then charging that the purchase made by Loioten was as agent for, and on account of, the Plaintiff; that the conveyance afterwards executed to him of the said presentation, and also that [393] of the second presentation to the same living, were intended only as securities for money in which the Plaintiff Was then indebted to him; and that the subsequent sale was at a considerable Undervalue, and known to be so by the defendant ; insisted that he ought to bo considered as having purchased only for the Plaintiff's benefit; or, if otherwise, that the purchase should be held to be void, having been made contrary to his professional duty as the Plaintiff's solicitor ; and therefore prayed a declaration accordingly, and that it might be referred to the Master to ascertain the value of the presentation at the time of the sale thereof to the present incumbent, and the Defendant be decreed to pay to the Plaintiff the amount thereof, after deducting what was due to him on account, together with the 4400, paid by him as the purchase-money for the said presentation. Loioten, by his answer, denied agency, and alleged that the conveyance made to him of the said presentation was an absolute conveyance; then, admitting that he had sold the presentation for 6000, he insisted, by way of demurrer, that, as to so much of the bill as sought any discovery as to any alleged sale of the said presentation, or when or to whom the same was sold, or any matter or thing relative thereto (except as to the sum for which the same was sold as aforesaid) he was not bound to answer ; forasmuch as the bill sought to charge him with a simoniacal contract, in respect whereof (if any were made) he, the Defendant, might be subject to divers pains and penalties. (See stat. 31 Eliz. c. 6.) The Defendant Lowten died after putting in this [394] Answer, and a bill of Revivor and Supplement was afterwards filed by the Assignees of Daniel (who had taken the benefit of the Insolvent Act), against Lmctcn's Executor, charging 1MER. 395. PARKHUKST V. LOWTBN 719 him with knowledge and information of the circumstances attending the transactions in the Bill mentioned, and requiring from him a discovery, together with a production of all books and papers in his possession or power, in any manner relating thereto. To this Bill an Answer was put in by the Executor, in which, after stating all the circumstances within his own knowledge, or of which he had been informed, relative to the transactions inquired into, he said that he had found, among the papers of the deceased, several letters, and drafts of letters, and an agreement in writing, which, he believed, were the whole of the papers in his possession relative to the sale of the first presentation, and which he stated that he was ready to produce as the Court might direct; and then, in Answer to the general Interrogatory in the Bill, he admitted that he had divers books and papers of the deceased in his possession, relating to the said matters, of which he set forth a schedule, and submitted to produce the same, saving all just exceptions, as the Court should direct. Upon the coining in of this Answer, the Plaintiffs applied before the Vice-Chancellor for an inspection of all the papers, &c., in the custody of the Defendant and Executor, when the Defendant objected to the production of certain of those papers, relating to the sale of the Presentation, upon the ground that they contained evidence of a simoniacal contract; and, upon his Affidavit, which was filed in consequence of an intimation from the Vice-Chancellor, that in none of the Papers so objected to be produced, it appeared, [395] either directly or indirectly, that the Presentation was sold for more than 6000, but that it appeared to have been sold for that sum only, his Honor refused the Motion as to the Papers specified, granting it as to the rest of the Papers, admitted to be in the Defendant's custody. The Plaintiffs did not think proper to draw up the Order containing this exception ; but, on the 26th of June 1815, renewed the application before the Lord Chancellor, who, on the 15th of December following, made the following Order :- " That the defendant Thomas Lowten do, on or before the 20th of March next, produce upon oath, and leave in the hands of his clerk in Court, all Deeds, Books, Papers, and Writings, mentioned in the Schedules to the Answers of the defendant Thomas Lowten, deceased, and of him the present defendant Thomas Lowten, but with liberty to the said Defendant to make such exceptions in his Affidavit, and in such terms as he may be advised to make, in order to avail himself of such reservation as to all just exceptions as is mentioned in his Answer, with liberty for the Plaintiffs, their Clerk in Court, Agent, or Solicitor, to inspect such Deeds, Books, Papers, and Writings, and take Copies or Extracts, thereof, as they shall be advised at their own expense ; and, after such production, the Plaintiffs are to be at liberty to make such application to the Court respecting the same, if they shall be advised that the same is insufficient, as they may be advised to make." In pursuance of this Order, the Defendant left with his clerk in Court certain papers, &c., accompanied by an affidavit, stating that they were all the deeds, [396] books, papers, and writings, mentioned in the schedules to his answer, and that of the deceased Defendant, except as thereinafter mentioned ; and the affidavit then went on to state, that the several papers comprised in the schedule thereto, being part of!the papers, &c., mentioned in the aforesaid schedules, related to the sale of the Presentation in the pleadings mentioned, as to which the late Defendant, by his answer, submitted that he ought not to be called upon to answer, forasmuch as the bill sought to charge him with a simoniacal contract; that, in case the alleged sale were to be declared to have been simoniacal, the said presentation would lapse, and the Deponent, who was then entitled to the next Presentation, as in the pleadings mentioned, might thereby be subjected to a forfeiture, or to a loss in the nature of forfeiture ; therefore submitting that he ought to bo protected from producing the said papers, &c., inasmuch as the discovery would lead to, and might be used by the Plaintiffs in and towards, the proof of such simoniacal contract; and also, inasmuch as the Plaintiffs had no right to insist on such discovery : arid that, as the Court wo.uld not have compelled the late Defendant to make such production or discovery as aforesaid, ho, the Deponent, as Executor arid Devisee of the said late Defendant, was in all respects entitled to the same protection." This affidavit was filed on the 20th of March 1816, and the Plaintiffs now moved that the Defendant might, within a week, leave with his clerk in Court the several deeds, books, papers, documents, and writings, mentioned in the schedule to his 720 PARKHUKST V. LOWTEN 1 MEE. 397. answer, which were set forth in the schedule to the said affidavit, with liberty to the Plaintiffs, their Clerk in Court, Agent, or Solicitor, to inspect and take Copies. [397] Sir Samuel Romilly, Bell, and Sidebottom, in support of the motion. The protection claimed in this instance is in the nature of a mere personal protection of the Defendant from the forfeiture to...
To continue reading
Request your trial
-
R. v. Meer (J.D.), (2015) 600 A.R. 66
...to. [para. 70]. State v. Christian (2004), 841 A.2d 1158; 267 Conn. 710, refd to. [para. 70]. Parkhurst v. Lowten (1819), 2 Swans. 194; 36 E.R. 589 (Ch.), refd to. [para. A.M. v. Ryan, [1997] 1 S.C.R. 157; 207 N.R. 81; 85 B.C.A.C. 81; 138 W.A.C. 81, refd to. [para. 73]. R. v. Big M Drug Mar......
-
Miley v Flood (no 1)
...Germany (1992) 16 E.H.R.R. 97. Ontario (Securities Commission) v. Greymac Credit Corp.(1983) 146 D.L.R. (3d) 73. Parkhurst v. Lowten (1818) 2 Swans. 194. Pascall v. Galinski [1970] 1 Q.B. 38; [1969] 3 W.L.R. 626; [1969] 3 All E.R. 1090. In re Pergamon Press Ltd. [1971] Ch. 388. Police v. Mi......
-
Tate Access Floors Inc. and Another v Boswell and Others
... ... Haiti (Republic of) v. Duvalier [ 1990 ] 1 Q.B. 202 ; [ 1989 ] 2 W.L.R. 261 ; [ 1989 ] 1 All E.R. 456 , C.A ... Parkhurst v. Lowten ( 1819 ) 2 Swan. 194 ... Practice Direction (Crime: Conspiracy) [ 1977 ] 1 W.L.R. 537 ; [ 1977 ] 2 All E.R. 540 ... ...
-
Bishopsgate Investment Management Ltd v Maxwell; Cooper v Maxwell; Mirror Group Newspapers Plc v Maxwell
...Under the rule, a man is not obliged to accuse himself, is implied, that he is not to discover a disability in himself." 25So, in Parkhurst v. Lowten (1819) 2 Swans 194 at 214 Lord Eldon L.C. refers to "it having been for ages a principle of British jurisprudence, and I hope it will continu......