Shaw v Neale
| Jurisdiction | England & Wales |
| Judgment Date | 23 March 1855 |
| Date | 23 March 1855 |
| Court | High Court of Chancery |
English Reports Citation: 52 E.R. 562
Rolls Court
Reversed by House of Lords, 6 H. L. C. 581; 10 E. R. 1422, q.v. for full note.
5 62 SHAW V. NEALE 20 BRAY. 155. context of the will, and upon the general form and scheme as demonstrating the intention. Ch,ureh v. Mundy (15 Yes. 396) does not appear to militate against this construction in any respect. In that case there was a general gift of "all such worldly estate and effects as it may please God to bless me withal, whether real or personal," using the word "real." There was no question that this would pass free- hold estate, but the question was this whether, assuming he had no freehold estate, a reversion in copyholds would pass under these words. Lord Eldon held that it would pass, for otherwise no meaning could be attached to the words " real estate." Church v. Meetly [155] shews that the words "real estate " might be applied to a reversion of copyholds, where there were no freeholds to answer those words, but does not militate against Woollam v. Kenworthy , which laid it down that you must look to the whole will to discover the intention of the testator. You must always look to the general rule laid down by a Judge with reference to the case before him, and Lord Eldon says (15 Yes. 406), "The best rule of construction is that which takes the words to comprehend a subject that falls within their usual sense, unless there is something like declaration plain to the contrary." That rule has been applied to the case of Chinch v. Mundy, where the testator has disposed of real estate, having only a reversion in copyholds, and the consequence was that it would pass " unless there is something like declaration plain to the contrary." How does Saumarez v. Sauinarez (4 Myl. & Cr. 331) affect this question'? The testator had there disposed of his Dorsetshire estate to his son for life, and immedi- ately proceeds to dispose of the residue of his property ; Lord Cottenham held, as was stated by Sir G. Turner in Stokes v. Salicmons (9 Hare, 83), that he shewed " that he had real estate in his mind by the disposition he had made to his son of a life interest only in that particular real estate," arid having that estate in his mind, he proceeded to dispose of the residue of his property, and he therefore included the reversion of the estate given to his son for life. The intention of passing the reversion (the words showing that the testator had the real estate in his mind) was not to be overruled by a series of subsequent limitations applicable only to personal estate. Here the testator has used ambiguous expressions, but I am of opinion that the rest of the will shews that [156] he did not mean to include his real estate. I find in this will ambiguous expressions large enough to include the real estate, but I think the rest of the will shews that he did not mean to include it. In Stokes v. Salanums the testator had used the word " devise," which is only properly applicable to real estate. There is no such word in this will, and I think that the cases do not prevent me coming to the conclusion that the words used in the present will do not include real estate ; and that, on the contrary, the general scope and object of the will all point to personal estate only, and chew that be did not intend his real estate to pass by his will. [157] SHAW v. NEALE.(1) Jan, 29, 30, 31, March 23, 1855. [Reversed by House of Lords, 6 H. L. C. 581 ; 10 E. R. 1422, p.c. for full note.] A solicitor has no lien for his costs upon real estates recovered by him for his client. Under the 1 & 2 Viet. c. 110, and 2 & 3 Viet. c. 11, if a judgment creditor neglect (1) DATES. Mr. Shaw, 1837. Compromise. Feb. 1838. Shaw discharged, and Remnant appointed. March. 1839. Judgment and elegit. April. 1839. Master's allocatur registered. June. 1839. Mortgages to H. April. 1840. j Nov. 1840. Allocatur served. to re-register within five years, the judgment becomes inoperative, as to purchasers, mortgagees and creditors (both anterior and subsequent), until re-registration, from which period alone it then operates as against them. A solicitor, pending his employment, took security for costs from a poor and illiterate client. Held, that assuming a judgment creditor of the client had the same rights as the latter, still that, after ten years' acquiescence, the accounts would not be opened. The allocator of the Taxing Master, upon a taxation, does not, when registered under the 1 & 2 Viet. c. 110, constitute a charge on the real estate of the client. The Plaintiff, a solicitor, obtained from his client securities on his real estate, whilst he wilfully obstructed the Defendant (the former solicitor) in obtaining a final order for payment of his taxed costs, which would have enabled him to obtain a charge under the 1 & 2 Viet. c. 110. The Court held that the Plaintiff was nevertheless entitled to the benefit of his securities. An estate was mortgaged to A. for a sum and further advances. Afterwards, B. obtained a charge ott the estate, by means of a judgment. Held, that further advances made to the mortgagor by A., after notice of the judgment, had no priority over B.'s claim. The doctrine of the case of Gordon v. Graham (2 Eq. Ca. Ab. 598) doubted. Seth Sewell died in 1836, having by his will givers all his real and personal estate to his attorney and apothecary. The testator's heir, James Neale, [158] a poor and illiterate labouring man, unable to read or write, employed the Plaintiff, Mr. Shaw, an attorney, to prosecute his claim to the testator's real estate ; and Neale, in 1836, obtained a verdict in an action of ejectment ; a subsequent compromise between the parties, in 1837, acknowledged his right to the property, which was of the value of between 3000 and 4000. By an indenture, dated the 5th of January 1837, certain outstanding terms therein, or in part thereof, were assigned to the Plaintiff, in trust for Neale, and to attend the inheritance. In 1836 the Plaintiff, on behalf of Neale, had also instituted a suit in Chancery against the devisees of Sewell, for an account of mesne rents and profits of the premises recovered in the ejectment, and, by an order of the 26th of November 1836, the devisees were directed to bring the title-deeds, &c., into Court, where they still remained ; but, in consequence of the compromise, all proceedings, both at law and in equity, were stayed. In September 1837, the property recovered in the ejectment was put up for sale, in six lots, three of which were sold, and the deposits were paid to the Plaintiff. In February 1838 Neale, who had as yet received no fruit of the litigation, acting under the advice of the Rev. H. S. Taylor, who from the first had taken a great interest in the case, discharged the Plaintiff, and employed the Defendant, Mr. Remnant, to act as his solicitor. On the 8th of February 1838 Remnant applied to the Plaintiff for his accounts, and afterwards obtained an order of the Court of Queen's Bench for the delivery and taxation of the Plaintiff's bill of costs against Neale. The taxation in the Queen's Bench was proceeded [159] with, and, on the 11th of April 1839, the Plaintiff obtained the Master's allocakr, finding 1238, 2s. 3d. due to Mr. Shaw. Jan. 22, 1841. Jan. 30, 1841. Order for payment registered. Jan. 8, 1844. Jan. 30, 1846. Five years expire. Nov. 30,1846. Re-registration. Nov. 30,1851. Five years again expire. 1882. Nov. 30,1852. Re-registrations. 564 SHAW V. NEALE 20 MAN,. HO. him, which client/u, the Plaintiff, on the 16th of the same month, registered in the Court of Common Pleas, in pursuance of the statute (1 & 2 Via, c. 110). On the 17th of March 1839 Remnant obtained from Neale a warrant of attorney to confess judgment for 1000 to secure 500 and interest. On the same day, judgment - for that amount was entered up and registered, and a writ of elegit was issued, by virtue of which the sheriff delivered possession of the property to Remnant, who had ever since retained possession of it, and had received the rents since accrued due thereon. On the 12th of June 1839 Remnant obtained from Neale a mortgage on the property to secure two sums of 500 and 147 and interest, together with future advances. On the 16th of April 1840 an agreement was entered into between Remnant and Neale, whereby, after reciting the previous securities, and that Neale was indebted to Remnant in a sum of 380, 8s. 5d., in addition to the former sums, the mortgaged premises were made subject to this further charge of 380, 8s. 5d. with interest thereon at 5 per cent., making the total amount charged 1027, 8s. id. On the 23d of November 1840 Remnant obtained from Neale a warrant of attorney to confess judgment for the sum of 1000, and judgment was entered up thereon the next clay, and an elegit was issued arid duly executed by the sheriff. On the 22d of January 1841 a further agreement was made between Neale arid Remnant, whereby it was agreed that, in consideration of the sum of 1228, then alleged to ,he due from the former to the latter, all the estate and hereditamonts of Neale should be charged [160] with the payment thereof, and interest thereon at 5 per cent. from the date thereof. From the time of obtaining the Master's allocatar, the Plaintiff had made every exertion to serve it on Neale, but was unable to do so by reason, as he alleged, of his being kept out of the way, at the suggestion and by the contrivance of Remnant, to prevent service. On the 14th of November 1840 the Plaintiff, upon an application being made to the Court by Remnant, on behalf of Neale, for production of the title-deeds to the estate of the latter, obtained an order requiring Remnant to produce Neale, and accordingly, to avoid air attachment, he was produced at the chambers of Remnant's town agent, and duly served with the allocatur. The Plaintiff then, upon the 28th of January 1841, obtained a peremptory rule of Court, or absolute order, for payment of the amount of...
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