Rose v Clarke
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1842 |
| Date | 01 January 1842 |
| Court | High Court of Chancery |
English Reports Citation: 62 E.R. 1005
HIGH COURT OF CHANCERY
[534] rose v. clarke. April 20, 21, 22, May 23, 1842. On the marriage of A. and B. the fortune of B., which consisted partly of a sum of money due from C. to P., and secured by the bond of C., was settled on the intended husband and wife and their issue. The bond was not referred to in the settlement, but the wife's fortune was therein stated to have been paid to the trustees; and power was reserved to the trustees to lend the wife's fortune to A.r the husband, on his personal security. The marriage took effect, and some years afterwards the son of A. and B. filed his bill against C. to recover the money due= upon the bond, alleging that C., with knowledge of the existence of the settlement, and that according to its provisions the money ought to have been paid to th& trustees, wrongfully paid the money to A., who had wasted it and become bankrupt, In support of the allegation as to C.'s knowledge of the provisions of the settlement the Plaintiff gave some general evidence connecting him with that instrument; as-that he was brother-in-law of B., that the parties married from his house, that he-was spoken to on the subject of the settlement, that it was prepared by his attorney, and that he was present when it was read over previously to execution -f but the bond was not produced, nor was there any proof of its existence, and C.7 by his answer (which was in evidence), averred that it had been long since satisfied, Held, under these circumstances, that the Plaintiff could not recover from C. the' amount of the bond. An equitable title to money secured by bond is not of itself sufficient to entitle the party interested to sue the obligor in equity for payment of the money. Before a payment by a debtor to, or under the direction of, his legal creditor can be impeached or avoided to the prejudice of the debtor, it must be shewn clearly either that the debtor was subjected to the obligation of seeing to some particular mode of application of the money, which was not pursued, or that the debtor, having notice of circumstances rendering it inequitable for the legal creditor to-receive or direct the payment, could reasonably and with safety have avoided making the payment. The Court refused to admit secondary evidence of a declaration of trust, there- being strong circumstantial evidence to shew that the original instrument was not. stamped. . Quaere, whether the mere fact that the Plaintiff has filed a replication to the answer of a Defendant precludes him from examining that Defendant as a witness. John Hood, by his will, devised his real estates to his daughter Isabella, and her heirs, upon trust, with the consent of Dummeller and Lakin, his executors, to sell the estates, and distribute the money arising from the sale amongst his children. After the death of the testator, and in the year 1806, part of the property was purchased by Joseph Clarke, who had married the testator's daughter Isabella; and Clarke and his father gave their joint bond to secure the amount of the purchase-money, 1705, 14s., to Dummeller and Lakin. Mary, another daughter of the testator, married Matthew Rose, and in contempla tion of that marriage the intended wife's fortune, which consisted for the most part of her share of the monies arising under the testator's will, and amounted in the whole to ,1073, was by an indenture of settlement of the llth May 1809 assigned to William Hood and John Rose, upon the usual trusts for the intended "husband and wife and their issue. This settlement, to which Mary Hood, Matthew Rose and the trustees were [535] the only parties, stated the 1073 to have been actually paid to the trustees, and it gave power to the trustees to lend the money to the husband on his real or personal security. ., 1006 ROSE V. CLARKE 1Y. & C. C. C. 536. Mary Eose died in 1812, leaving issue one son only, namely, the Plaintiff, who in February 1833 filed the present bill, stating the following case:-That at the time of the execution of his mother's settlement the before-mentioned sum of 1073 was in the hands of Joseph Clarke, and that the same or the principal part thereof consisted of money due from him on the before-mentioned bond; and that, although it was stated in the settlement that that sum had been paid to the trustees, yet such "was not the case; but that, by concert or agreement between Dummeller, Lakin, the trustees and Clarke, it was permitted to continue in the hands of Clarke on the security of the bond; that shortly after the marriage Dummeller and Lakin executed a deed-poll reciting these circumstances, and declaring that 1073, part of the money secured by the bond, was the same sum as had been made the subject of the settlement, and was held by them on the trusts of the settlement; that after the death of Mary Rose, and while the Plaintiff was an infant, Joseph Clarke, although he knew that, according to the provisions of the settlement, the money ought to have been paid to the trustees in order that the same might be invested for the benefit of the Plaintiff, paid the 1073 by various portions, at different times, to Matthew Eose, in order to enable him to apply the same to his own use; and that Matthew Eose accordingly did apply the money to his own use, without giving any security for the same; that these payments were made with the privity of Dummeller and Lakin, and that they did not interpose to prevent the making thereof; that Matthew Eose afterwards became bankrupt, and received his certificate without having repaid any part of the money. The bill further stated the deaths of Lakin and Dummeller and Hood, one of the trustees under the settlement, probate of their wills by their respective executors, [536] the subsequent bankruptcy of John Rose, and the receipt by him of his certificate of conformity. The bill charged that Dummeller and Lakin colluded with Joseph Clarke to aid Matthew Rose with the payments in question, to the prejudice of the Plaintiff while an infant, and that the executors of Dummeller and Lakin, and of the trustees (the executors of Lakin being Matthew and John Rose) were bound to apply the assets of their respective testators in making good such payments. The bill, which was filed against Joseph Clarke, the executors of Dummeller, the executors of Lakin, the executors of Hood and the assignees under Matthew Rose's bankruptcy, prayed that the Plaintiff might be entitled to have the said sum of 1073 made good by the Defendants, or some or one of them, and by the respective estates of Dummeller, Lakin and Hood respectively, or one of them, &c. The Defendant, Joseph Clarke, by his answer, admitted (and this part of the answer, as far as the asterisk, was read by the Plaintiff) that, in the year 1806, he had purchased from Dummeller and Lakin certain lands to secure the purchase-money for which he and his father gave and executed to the vendors their joint bond, but that he could not at that distance of time set forth as to his knowledge, &c., the date of the bond, or the particular sum for which it was given ; he, however, stated that he and his father, or one of them, sometime afterwards, and upwards of twenty years ago, duly paid and satisfied, or duly accounted for, the full amount of the principal and interest due upon the bond, and were duly released and discharged from all liability thereon by Dummeller and Lakin; moreover, that he, the Defendant, married Isabella, one of the daughters of the testator, and that, in right of his wife under the testator's will, he became entitled to a...
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Steyn v Gagiano en 'n Ander
...in 1953 IR 19 en is ongelukkig nie vir my beskikbaar nie. C Vir die gedeelte wat ek gekursiveer het, steun Phipson op Rose v Clarke 1Y & CCC 534 (wat ewe-eens nie beskikbaar is nie) en Arbon v Fussel 3F & F 152. Die tersaaklike gedeelte van laasgenoemde beslissing lees soos 'Action by job-m......
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Steyn v Gagiano en 'n Ander
...in 1953 IR 19 en is ongelukkig nie vir my beskikbaar nie. C Vir die gedeelte wat ek gekursiveer het, steun Phipson op Rose v Clarke 1Y & CCC 534 (wat ewe-eens nie beskikbaar is nie) en Arbon v Fussel 3F & F 152. Die tersaaklike gedeelte van laasgenoemde beslissing lees soos 'Action by job-m......
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...may recover against . Jervis is nothing to the Plaintiff. [THE vice-chancellor. Timmis was Jervis's legal creditor : Rose v. Clarke (1 Y. & C. C. C. 534).] Jervis has so conducted himself as to guarantee the Plaintiff's title to the money. It is clear upon the evidence that he, by his agent......