William Prosser the Younger, and John Howard, Plaintiffs, Richard Edmonds, Richard Hughes, and Robert Todd, Defendants
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1835 |
| Date | 01 January 1835 |
| Court | Exchequer |
English Reports Citation: 160 E.R. 196
IN THE COURT OF EXCHEQUER IN EQUITY
Distinguished, Wilson v. Short, 1848, 6 Hare, 366. Not applied, Dickinson v. Burrell, 1866, L. R 1 Eq. 351. Applied, Robb v. Dorrian, 1877, Ir R 11 C L. 307; Keogh v. M'Grath, 1880, 5 L R. Ir 516. Referred to, Bradlaugh v Newdegate, 1883, 11 Q. B. D 12; Alabaster v. Harness, [1894] 2 Q B. 897, [1895] 1 Q. B 344, Dawson v. Great Northern and City Railway, [1905] 1 K B 271, Fitzroy v. Cave, [1905] 2 K. B 369; British Cash and Parcel Conveyors, Limited v. Lamson Store Service Company, Limited, [1908] 1 K. B. 1020, Defries v. Milne, [1913] 1 Ch. 109 See also 4 Y. & C. Ex. 566
[481] william prosser the Younger, and john henry howard, Plaintiffs, - IK /3 v_RICHARD edmonds, richard hughes, and robert todd, Defendants. ' July 4th, Dec 17th, 1835 - An assignment of a bare right to tile a bill in equity for a fraud committed on the assignor, is contrary to sound policy, and void therefore, where A., who was entitled to certain property under his father's will, for a valuable consideration, assigned the whole of that property (except a reversionary interest in the funds) to B , his father's executor, and afterwards assigned the whole of his interest under his father's will (including, therefoie, the reversionary interest to C : Held, that C. could not maintain a bill to set aside the first assignment, on the ground of fraud committed by B. against A., the latter refusing to join as plaintiff in the suit.- A chose in action, not coupled with any partial interest in possession, and which cannot be reduced into possession without a suit, is not assignable in equity. - Courts of equity will give no encouragement to contracts which savour of maintenance or champeity, though such contracts may not be within the strict legal limits assigned to those offences. To a bill tiled for carrying the trusts of a ci editor's deed into execution, the scheduled creditors, who have not executed the deed, need not be parties. - After a plea submitted to, and bill amended, a demurrer may lie to the whole amended bill. [Distinguished, Wilson v. Short, 1848, 6 Hare, 366. Not applied, Dickinson v. Burr ell, 1866, L. R 1 Eq. 351. Applied, Robb v. Dm nan, 1877, Ir R 11 C L. 307; Keogh v. M'Grath, 1880, 5 L R. Ir 516. Referred to, Etadlaugh v Newdegate, 1883, 11 Q. B. D 12; Alabaster v. Rainess, [1894] 2 Q B. 897 , [1895] 1 Q. B 344 , Dawson v. Great Northern and City Railway, [1905] 1 K B 271 , Fitzroy v. Cave, [1905] 2 K. B 369 ; British Ca^h and Patcd Conveyors, Limited v. Lamwn Sloie Service Company, Limited, [1908] 1 K. B. 1020, Defiles v. Milne, [1913] 1 Ch. 109 See also 4 Y. & C. Ex. 566 ] Thomas Todd, by his will, after bequeathing certain annuities to various persons, directed that, upon the respective deaths of those persons, the funds, which should have been set apart to answer the annuities, should be disposed of by his trustees and executors thereinafter named, in the same manner as the residue of his real and personal estate The testator, then, after mentioning that he had in his lifetime advanced considerable sums of money to his two song, and, therefore, intended to give his daughter a larger sum than he would otherwise have done - gave, devised, and bequeathed to the defendant, R. Edmonds (the husband of his daughter), and Richard Hughes, their heirs &c , all his real and personal estate, not thereinbefore disposed of upon trust, to sell the real estates, and to convert into money so much of the personal ac should not consist of money, and divide the proceeds into three equal parts, one third part thereof, and also 10,0001 out of the two other third parts, to be paid to his daughter Catherine Edmonds, for her absolute use and benefit; and the residue of those two third parts to be paid to the testatoi's two sons, William and Robert Todd, and their respective executors, administrators, and assigns. The testator then directed that his son William should have the right of pre-emption of his real estates at [482] Poplar, at a fair valuation. That Robert should have a similar right in regard to his estates at Benhill ; and that it should be lawful for the trustees to allow any of his children the pre-emption of any other parts of his property which he or she might desire, at a fair valuation , but that the trustees should not be prevented from disposing of his property by reason of such pre-emption longer than twelve calendar months after the testator's decease. The testator then appointed Thomas Edmonds and Richard Hughes to be the executors of his will. Upon the testator's death, the executors proceeded to execute the trusts of the testator's will, and to administer his estate; and they set apart 11,6001. consolidated 1Y&CEX-483. PROSSBR V. EDMONDS 197 Bank Annuities, for the purpose of paying the annuities bequeathed by the will. In August, 1828, they delivered their final account as such trustees and executors, to William and Robert Todd, who thereupon signed the account, arid gave releases to the executors. In March, 1829, William Todd, by an indenture, assigned his reversionary one-third share in the sum of 11,6001. consols, to the defendant Edmonds, subject to a power for the repurchase of the same within ten years In June of the same year he, by an indenture, assigned to his brother Robert Todd his one-third share in the testator's residuary personal estate, and also his power of repurchase reserved to him by the last-mentioned indenture. He made no actual conveyance to Robert Todd of his interest in the real estate , but it was alleged by the bill that this indenture of assignment was intended to have that eflect By virtue of several indentures, dated in June, 1729, and April, 1830, and executed between Robert Todd and the defendant Edmonds, the whole of the interest in the testator's property which Robert Todd had purchased of his brother, and also his own one-third share in the testator's residuary estate, became vested in Edmonds, Robeit [483] Todd retaining only his reversionary one-third share in the 11,6001 consols. In March, 1833, Robert Todd having opened a banking account with Messrs. Williams, Deacon & Co., executed to them a conditional assignment of his reversionary intaiest in the 11,6001. consols, as a security for all monies advanced or to be advanced to him by that firm. As a further security to Messrs. Williams & Co., Robert Todd, in the following month, executed to them a similar assignment of all his interest in the property devised and bequeathed by the testator, whether present, expectant, reversionary, contingent, or otherwise, and to which he or any person or persons in trust for him might be entitled in any manner howsoever, or might recover by virtue of any suit or action to be commenced or prosecuted against the executors or trustees of the said will. Again, in June 1834, Robert Todd being indebted to Messrs Gramolt in a sum of 3001., as a security for that debt, executed to them a conditional assignment of all his interest under his father's will, and all his interest in William Todd's share, subject to the prior incumbrances. In consequence of the two assignments made by Robert Todd, of his interest in his father's residuary estate, first to Edmonds, and secondly to Williams & Co., these several parties entered into an arrangement, the consequence of which was an indenture dated the 12th of May, 1834, and made between Williams & Co. of the first part, Robert Todd of the second part, and Edmonds and Hughes of the third part, by which Williams & Co., at the request of Robert Todd, released to Edmonds and Hughes all claims which they, Williams & Co., might have upon the testator's estate, except as to the reversionary interest of Robert Todd in the annuity fund Lastly, by indentures of lease, and assignment and release, dated respectively the 4th and 5th of September, 1834, and made between Robert Todd of the first part, [484J Herbert George Jones of the second part, and the plaintiffs of the third part, reciting that Robert Todd was indebted to Jones in the sum of 16001, and to the plaintiff Howard in 5001 f and to the several...
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