The Right Hon. Spencer Bulkekey, Lord Newborough, J. E. Shearman, and Thomas Dyke v Ludolf Balthazar Schroder

JurisdictionEngland & Wales
Judgment Date14 February 1849
Date14 February 1849
CourtCourt of Common Pleas

English Reports Citation: 137 E.R. 136

IN THE COURT OF COMMON PLEAS

The Right Hon. Spencer Bulkekey, Lord Newborough, J. E. Shearman, and Thomas Dyke
and
Ludolf Balthazar Schroder

S. C. 18 L. J. C. P. 200; 13 Jur. 611. Referred to, Taylor v. Chichester and Midhurst Railway Company, 1867-70, L. R. 2 Ex. 390; L. R. 4 H. L. 628.

[342] the right hon. spencer bulkeley, lord newborough, J. E. shearman, and thomas dyke v. ludolf balthazar schroder. Feb. 14, 1849. [S. C. 18 L. J. C. P. 200; 13 Jur. 611. Referred to, Taylor v. Chichester and Midhurst Railway Company, 1867-70, L. R. 2 Ex. 390; L. R. 4 H. L. 628.] It is unnecessary to make profert of deeds or other instruments which are set out by way of inducement only.-In pleading,-except in deducing title,-a deed may, at the option of the party pleading it, be set out, either in its terms, leaving the court to construe it, or according to its legal effect.-In an action for the breach (a) Inclusively, ut videtur. 7C.B.343. LORD NEWBQROUGH V. SCHRODER 137 of a covenant of indemnity contained in an indenture of November, 1842, the declaration set forth an indenture of January, 1809, being a settlement made on the marriage of A. with B., by which provision was made for effecting a policy of assurance on the life of B., the proceeds of which were to be subject to the appointment of A. and B., or of the survivor, in favour of a child or children of the marriage; it then set out a settlement of March, 1840, made upon the marriage of 0., a daughter of A. and B., with L\, reciting the death of A. without having exercised the power of appointment, by which deed C., with the consent of D., her then intended husband, assigned all her interest in any fortune to which she might become entitled under the will of her mother, to trustees, for the separate use of C., with a power of appointment by C. in favour of children of that marriage. Of these deeds no profert was made. The declaration then set out, with profert, the indenture of November, 1842,-reciting the death of B., that she had made a will, dated in July, 1840, whereby she appointed the sum of 20001. to be settled " upon the trusts declared in the indenture of settlement of March, 1840, so far as the rules of law and equity would permit, and she had power so to direct and appoint, but if she had not such power, then she willed and appointed that the 20001. should be paid to C., or as C. should by writing direct and appoint, for her separate use,"-and further reciting that by another indenture the plaintiffs became trustees under the indenture of March, 1840, that they had received the 20001., which was property of a personal nature to which C. was beneficially entitled under the will of B., and that the same was in their hands subject to, and charged in equity with, the trusts of the indenture of March, 1840, that D. was desirous to obtain from the plaintiff a loan of the 20001., and that It was considered that B. had-not power to appoint the 20001. .to be settled upon the trusts of the indenture of March, 1840, and therefore that, under the . alternative appointment made by her, C. had become entitled thereto absolutely for her separate use, but that a question had been made whether it was not subject to the assignment made by the indenture of March, 1840, wherefore the said C., with the approbation of D., her husband, had proposed and consented that the 2000L should be paid to the plaintiffs as trustees, to be held by them upon the trusts therein declared, they being indemnified by C. and D.-The declaration then averred that the 20001. had been accordingly lent by the plaintiffs to D.; that that sum remained unpaid; that, by an indenture of September, 1845, T. S. and others were appointed trustees of the indenture of March, 1840, in place of the plaintiffs; that T. S., as such trustee, had commenced a suit in Chancery against the plaintiffs and others to compel them to invest the 20001. so lent to D.; that D. had notice of the proceedings, and was required to take upon himself the defence thereto, and to indemnify the plaintiffs; that D. declining to take upon himself the defence, the plaintiffs consented to an order whereby they became liable to transfer to the accountant-general a certain amount of stock, and were put to expense :-Held,- first, that profert of the indentures of January, 1809, and March, 1840, was not necessary, those indentures being stated by way of inducement only :-Secondly, that the indenture of March, 1840, not deducing title, it was sufficient to set it out in its terms :-Thirdly, that it was not necessary to the maintenance of the action, that the indenture of March, 1840, should be valid as an assignment at law; but that, it was enough if it bound the fund in equity in the hands of the trustees :-Fourthly, that the plaintiffs were.not precluded from recovering upon the defendant's contract of indemnity, by their having consented to a decree before hearing,-it not being shewn that the decision could be in any degree affected by the stage of the cause in which it was pronounced, or that the plaintiffs, by incurring the expense of prosecuting the suit to the hearing, could have made any effectual defence, or have diminished the damage consequent upon an adverse decision. This was an action of covenant." The declaration stated, that, on the 3rd qf January, 1809, by a certain indenture then made between the Rev. John [343] Werninck, D.D., of the first part, the Hon. Lena, otherwise Magdalena Wynn, afterwards the wife of the said John Werninck, of the second part, and the Eight hqjj. T. J. Bulkeley, Lord Viscount Bulkeley, Henry Hope, and John Pownall, of the third part, - being a settlement made in contemplation of the then intended marriage between the said John Werninck and the said Lena Wynn, and being the indenture described in the indenture the tenor whereof is hereinafter set forth as made on or; G. P. xv.-5* 138 LORD NEWBOROUGH V. SCHRODER 7 C. B. 344. about the 3rd of January, 1809,-all the interest of her the said Lena Wynn of and in certain annual rents or yearly sums of money in the said deed mentioned, were by her assigned unto, and vested in, the said Viscount Bulkeley, Henry Hope, and John Pownall, their heirs and assigns, upon the trusts and for the intents and purposes, and subject to the provisoes, [344] declarations, and agreements thereinafter expressed and declared concerning the same respectively, that is to say, in trust for the said Lena Wynn and her assigns, until the said intended marriage should be had and solemnized ; and, from and after such marriage, upon trust, by or, out of the moneys to be received on account of the same annual rents or yearly sums, or either of them, or any part thereof, to procure from the Equitable Assurance Office, or some other public office or offices for the assurance of lives in London or Westminster, a policy or policies of assurance to them the said trustees, their executors, administrators, or assigns, or to the survivor or survivors of them, their or his executors, administrators, or assigns, for securing the payment of the sum of 50001., or any separate sums of money amounting to 50001., upon the death of the said Lena Wynn, and, from time to time after such insurance should be effected, and during the life of the said Lena Wynn, to keep and continue the same in full force, and to pay such annual premiums or sum or sums of money as should be necessary and sufficient for that purpose, and all other costs, charges, and expenses attending the effecting and continuing such insurance; and also upon trust, from time to time during the life of the said Lena Wynn, as and when the said annual rents or yearly sums expressed and intended to be thereby granted and conveyed, or any part thereof, should be received, to stand possessed of the same, or so much thereof as should remain after effecting and keeping on foot such insurance, for the sole and separate use of the said Lena Wynn, independent of the said John Werninck, her then intended husband, and so as not to be in any wise subject to his interference, dominion, or control, debts, or engagements, and to pay the same into her proper hands from time to time for that purpose, or to such person or persons, and for such [345] intents and purposes, as she, by writing under her hand, should at any time during such her coverture, or from time to time, order or direct; and it was thereby further declared and agreed by and between the parties to those presents, that, from and after the death of the said Lena Wynn, the said Viscount Bulkeley, Henry Hope, and John Pownall, and the survivor and survivors of them, and the executors and administrators of such survivor, should stand possessed of or interested in the principal moneys which should become due and be received upon such policy or policies of insurance as aforesaid, upon trust' for an only child, or for all and every, or for any one or more, exclusive of the rest, of the children of the said intended marriage, if there should be more than one, in such parts, shares, or proportions, for such interest or interests, to vest and be payable at such time or times, and under and subject to such charges or limitations over, powers, conditions, or restrictions, or in such other form as the said John Werninck and Lena Wynn, his intended wife, or the survivor of them, should, by any deed or deeds, writing or writings, with or without power of revocation, to be made, sealed, and delivered by both of them, or by the survivor of them, as the case might happen, and to be attested by one or more credible witness or witnesses, or by the last will and testament of such survivor, or any codicil or writing in the nature of, or purporting to be, his or her will, to be signed and published by him or her, and attested in like manner, should at any time thereafter, and from time to time, direct or appoint; but not so as to enable the said John Werninck, if he should...

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