Somerset v Cox
| Jurisdiction | England & Wales |
| Judgment Date | 10 March 1865 |
| Date | 10 March 1865 |
| Court | High Court of Chancery |
English Reports Citation: 55 E.R. 514
ROLLS COURT
S. C. 33 L. J. Ch. 490; 10 L. T. 181; 10 Jur. (N. S.) 351; 12 W. R. 590. See Hoxb-urghe v. Cm, 1881, 17 Ch. D. 527; In re Cousins, 1886, 31 Ch. D. 675; In re Dallas [1904], 2 Ch. 394.
[634] somerset v. Cox. March 8, 10, 1865. [S. C. 33 L. J. Ch. 490; 10 L. T. 181 ; 10 Jur. (N. S.) 351 ; 12 W. R. 590. See Hoxb-urghe v. Cm, 1881, 17 Ch. D. 527; In re Cousins, 1886, 31 Ch. D. 675; In re Dallas [1904], 2 Ch. 394.] Notice of a charge on a fund given to one before the fund comes into his possession is wholly ineffectual. An officer, on his marriage, covenanted to settle the produce of his commission when he sold out. He subsequently charged the proceeds in favour of his army agents. Afterwards, and before the receipt of the proceeds by the army agents, the trustees of the settlement gave them notice of the covenants : Held, that the agents had the first charge on the proceeds. 33BEAV.M8. SOMERSET V. COX 515 Upon the marriage of Lieutenant Lyon, of the Royal Scots Greys, a settlement was executed, dated the 21st of July 1852, whereby he covenanted with the trustees (the Plaintiffs), that any money, which at any time should be received or realized by or from the sale of his then commission or any future commission which he might thereafter obtain, or for or in respect of any difference in price or value upon exchanging into some other regiment, or retiring upon half-pay in case of his selling out, exchanging or retiring, should be paid to and be received by the trustees, and should be held upon the trusts therein declared. These trusts were for the parents and children successively. Lieutenant Lyon afterwards changed his regiment, and became a captain in the Second Life Guards, of which regiment the Defendants Messrs. Cox were the army agents. Captain Lyon became considerably indebted to the Defendants Messrs. Cox; and by an agreement dated the 9th of May 1861, after reciting the debt, and that Captain Lyon, being unable to pay it, had offered and proposed to Messrs. Cox that he would apply to the proper military authorities for leave to sell his commission in such regiment, with a view to the repayment to them of the debt so due to them out of the proceeds of such commission ; and further reciting that Captain Lyon had, in accordance with his offer, placed in the [635] hands of the said Messrs. Cox, as the regimental agents of the regiment, the application to the commanding officer of the said regiment for leave to sell his said commission, the Defendants then agreed to abstain for six months from forwarding the application to sell the commission, and Captain Lyon pledged himself to Messrs. Cox not to do any act, &c., that could, in any way, prejudice them in their right to recover and be repaid the debt of £3300 and interest out of the proceeds of the commission, if and when the same should be sold. And he agreed to execute all necessary legal instruments for more effectually enabling Messrs. Cox to recover and receive their debt and interest out of such proceeds; and so far as the law would allow, he did thereby charge such proceeds to and with payment thereof accordingly. After this, and on the 17th of June 1861, the Plaintiffs, the trustees of the marriage settlement, served Messrs. Cox with a notice, stating Captain Lyon's...
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