Trott v Smith, Executor of R Edwards, Deceased
| Jurisdiction | England & Wales |
| Judgment Date | 06 February 1844 |
| Date | 06 February 1844 |
| Court | Exchequer |
English Reports Citation: 152 E.R. 1375
EXCH. CHAMBER.
S. C. 13 L. J. Ex. 178.
[688] trott v. smith, Executor of R. Edwards, Deceased. Exch. Chamber. Feb. 6, 1844.-Declaration in covenant stated, that, by indenture of assignment of certain leasehold premises, dated 20th July, 1825, between the plaintiff, the defendant's testator, and W., the testator, for himself, his executors, &c., covenanted with the plaintiff to pay to W. £1200 and interest. By the indenture as set out in the plea in haec verba, it appeared that the plaintift' had mortgaged the premises to W., by a deed dated 12th April, 1825, with a proviso, that if the plaintiff, his executors, &c. six months after demand in writing, should pay the £1200 to W., W. would re-convey: that the assignment by the plaintiff to the testator was subject to the above indenture of mortgage to W., and to the payment to him of the said sum of £1200. There was then a general covenant with the plaintiff for payment by the testator to W. of the said sum of £1200. The plea then alleged that, after the breaches of covenant in the declaration mentioned, the plaintiff became bankrupt; that his estate was conveyed to certain persons named, in trust for his creditors, (not stating that they had been chosen assignees); and that afterwards, to wit, on &c., he duly obtained his certificate of conformity, which was duly allowed by the Lord Chancellor; and that the £1200 became payable by the plaintiff to W. before the bankruptcy. A second plea stated, that the indenture declared on was the same as that set forth in the former plea; n't then set out the proviso and covenant contained in the mortgage of the 12th iof April, J825, and alleged that no demand in writing of payment of the said Uum of £1200 had been given to the plaintiff. On special demurrer to these Ipleas, Held, first, that the declaration was sufficient.-Hecondly, that it was sufficiently stated in the first special plea, on general demurrer, that the parties to whom the plaintiff's estate had been conveyed were his assignees in bankruptcy. -Thirdly, that the first special plea was bad, for that it negatived on the face of it any possibility of interest in the covenant on the part of the plaintiff's assignees ; arid, therefore, that it was not necessary for the plaintiff to reply that no interest passed to them.-Fourthly, that the second special plea was a sufficient answer as to the principal sum of £1200, which was not due until after six months' demand in writing, subsequent to the 12th of April, 1828; but that the interest, being payable absolutely, and not after demand, the plea being pleaded to the interest aa well as to the principal, was therefore bad altogether. The like .objection was also held to apply to the first special plea.-Qiuere, whether the 'pleas were! bad, as setting up a qualified covenant, different from the absolute jcontract stated in the declaration, and therefore amounting to non est factuui. '; : [S. C. 13 L. J. Ex. 178.] Covenant. The declaration stated, that, by indenture, dated 20th July, 1825, made between the plaintiff, of the first part, R. Edwards, the defendant's testator, of the second part, and W. J. Wilton, of the third part, (excusing profert on the ground that the indenture was in the defendant's possession), the said R. Edwards 1376 TROTT V. SMITH 12 M. &W. 689. did, for himself, his executors, administrators, and assigns, covenant with the plaintiff, hia heirs, executors, and administrators, to pay to the said W. J. Wilton the sum of £1200 and interest. Breach, non-payment thereof by Edwards in his lifetime, or by the plaintiff, as executor, since his death, to the plaintiff, or to Wilton. First plea, non est factum. The second plea aet out the indenture in hc verba; (a) by which, after reciting, that [689] by an indenture of mortgage, elated 12th April, 1825, the plaintiff had mortgaged certain premises therein mentioned to Wilton for a term of one thousand years to secure the sum of £1200, with a proviso, that, if the plaintiff should, within six months after demand of payment thereof, (such demand to be in writing, but not to be good or valid unless made after the 12th day of April, 1H28), pay to Wilton the said sum of £1200 and interest, Wilton would re-assign the premises to the plaintiff; it was witnessed, that, for the considerations therein mentioned, the plaintiff did grant, bargain, sell, &c., to Edwards, his executors, &c., the premises in question, for the residue of the said term, subject to the said indenture of mortgage of the 12th April, 1825, and to the payment of the sum of £1200 thereby secured, find the interest thereof; and Edwards thereby covenanted with the plaintiff to pay to Wilton the said sum of £1200 and interest. The plea then stated, (in substance), that, after the breaches of the said covenant in the declaration mentioned, to wit, on the 24th of October, 1825, the plaintiff became a bankrupt, and that his estate was conveyed to certain persons, in trust for his creditors, (not saying, that such persons had been chosen assignees); that afterwards, to wit, on the 24th of October, 1826, the plaintiff obtained his certificate ; and that the said sum of £1200 became payable by the plaintiff to Wilton before the bankruptcy of the plaintiff; concluding to the country. The third plea stated, that the indenture in the declaration mentioned was the same as that set forth in the second plea; that the proviso and covenant contained in the said indenture of mortgage of the 12th April, 1825, were in the words and figures following: (setting them forth at length, in substance, the same as stated in the second plea); and that no demand, in writing, of payment of the said sum of £1200, or of any interest thereon, was given to the plaintiff six months, or at any time, before the commencement of this suit; concluding to the country. [690] Special demurrer to the second plea, assigning for causes, that the said plea did not either confess and avoid, or traverse and deny, the allegations in the declaration, that the said It. Edwards did, for himself, his heirs, &c., covenant and promise as in the declaration mentioned ; and also, that the defendant had, by the said plea, tendered an immaterial issue, namely, whether the plaintiff did or did not become bankrupt; and that, although it professed to be an answer to the whole declaration, it did not in truth contain any answer to it. The third plea was also demurred to, on the same grounds, and also, that the defendant bad thereby tendered an issue, as to whether the indenture of the 12th of April, 1825, did or did not contain the proviso in the third plea. The defendant joined in demurrer, and stated, as a point for argument, that the declaration was bad, for not shewing when or how the said sum of money covenanted to be paid as therein mentioned was payable, and for other causes. In Trinity Vacation, 1842, the Court below gave judgment for the defendant, holding the declaration bad (10 M. & W. 453). On this judgment a writ of error was brought into this Court, which was argued on the 17th of May, 1843,(A) by J. W. Smith, for the plaintiff. First, the declaration...
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