The Express.
London, England, 1846-11-07 00:00:00

Before the Master of the Itolls.

CAKPMAEL r:PLFOVILS.I Cift.;NT
TAKE.—This bill was filed by Mr. WM. Carpntael, against
Miss LetitiaPowis, to have the grant of an annuity set aside,
or the deed rectified by reducing the amount of the annuity
which it was alleged the plaint 1I had granted under a mis-
take. It appeared that in August, 1839, Milo; Pu.vis sold two
freehold houses to the plaintiff for 1,8001., and the plaintiff
proposed instead of paying the purchase money to grant Miss
Powis an annuity on the security of the houses. Miss l'uwis,
on the sth October, 1839, deputed her brother, Mr. Thomas
Powis, to ascertain from the plaintiff the amount of the
annuity he was willing to grunt, and it was arranged on that
day, between the plaintiff and Mr. Thomas Pools, that the
amount of the annuity should be one per cent. more than a
government annuity for the life of a lady, aged 08, which was
Miss Powis's age. Accordingly by a mutual understanding
between the plaintiff and Mr. Fowls, the latter ascertained
from a party connected with the National Debt Office that the
amount which government would grant was an annuity of
108/. Os. Gd., and this information being, on the
oth of October, communicat d to the pl•tintiff by
Mr. Powis, it was agreed that 1761. Os. Gil. should,
subject to the approval of Miss Powis, be the amount of the
annuity. On the Gth of October the props-,d grant was
submitted by her brother to Miss Powis, who after some de-
mur as to the amount agreed to take it. And on the 7th of
(huffier a contract was entered into on the alaive footing,
which was completed on the Bth January, 1840. In Janu-
ary, 1844, the plaintiff's attention having been called to the
subject of government annuities by an article in a morning
newspaper, he discovered that the information which had
been communicated to him respecting the amount of a go-
vernment annuity was erroneous, and that 158/. was the
amount of a government annuity on the life of a male, and
138/. on the life of a female for 1,8001. Under these circum-
stances he attempted to induce the defendant to accede to a
reduction of the annuity, and she refusing to do this he filed
the bill in this cause.
Mr. Turner and Mr. Stevens urged that the grant was
made under the erroneous notion of what, under the circum-
stances, would be the amount of a government annuity,: and
that the deed of grant ought to be rectified by reducing the
annuity or be set aside in toto.
Mr. K i ndersley and Mr.Malinsresiged this belief on the part
of the defendant, contending that the defendant had agreed to
accept an annuity of 1761. 9s. Gd., without any reference to
the amount of a government annuity, and that the plaintiff
was guilty of culpable negligence in not making inquiries
respecting government annuities. They also urged the
hardship of granting the relief asked for after the length
of time which had elapsed.
The Master of the Rolla intimated his opinion that there
would be great difficulty in altering the deed. The parties
did not say that it was contrary to their intention at the
time, and Mira Powis would probably have refused to accept
less, than 1761. If the transaction were altogether set aside,
great hardship would be done to the defendant. Ire felt
great difficulty, and would give his judgment after con-
sidering the case.

Before the

or Enean I.

GILACE o. WEI4II.—REBritAIST UPON MARRIAUIL—In
this esne'it appeared that a person named JohnWebh,who had
resided for some time with Elizabeth Castle, and had had
children by her, executed an indenture, dated the Ist of
May, 1802, and thereby covenanted with the paid
Elizabeth Castle that he would pay to her, for her life,
subject to the proviso afterwards mentioned, an annuity
of 401. payable quarterly. And in the said indenture was
contained a proviso that in case the said Elizabeth Castle
should at any time thereafter happen to marry with any
person whomsoever, then, from and after her marriage, the
said annuity or yearly sum of 401. should he reduced to the
annuity of 201. only, which was to be paid to her from the
time of her marriage during the remainder of her life. At
the time this indenture was executed the said Elizabeth
Castle was a single woman, but afterwards, in October, 1825,
intermarried with Richard Elbrough. On the let of March,
1828, John Webb died, and by his will, dated the 31st July,
1826, ratified and confirmed the indenture of the Ist of May,
1802. This suit was instituted for the administration of the
testator's estate, and upon a reference to the Master he found
that the proviso contained in the before-mentioned indenture
was not contrary to public policy, and was therefore valid.
The case came on upon petition that the Master might be
directed to review his report.
Mr. Beaten and Mr.Winstanley appeared for the petition,
and Mr. Stuart, Mr. Montague, and Mr. Lake Rumen for
other pasties
The Vice-Chancellor said, the ground of public policy
which had induced the Court to hold that a clause in re-
straint of marriage was bad,arose from the consideration that
it was most beneficial to the community to have a multitude
of subjects ; and anything which tended to prevent that de-
sirable end was objectionable. It was true, that as regarded
widow, the law considered that a man had some sort of
interest in preserving the viduity of his wife, in order that
his children might he better taken care of. It was therefore
just that some inducement should be held out to a widow
that she should not marry again ; hut, in the preent case,
there was no motive in framing this chime, except that it
should operate to prevent the annuitant from marrying
again. He therefore considered that she was entitled to the
larger annuity, and that the clause in the indenture was
bad.
Moses e. OXENHAM. —Mr. Wilton applied for an injuno-
don, ex parte, to restrain a sale which was to take place this
day, under the following circumstances: A Mrs. Stephens
being entitled tc certain goods and chattels, assigned them,
en May last, to the plaintiff kdohhs, as a gentrity for 2.441 t..

The goods remained in her hands till the 28th of October,
when she absconded, acting under the advice, as alleged, of
the defendant Oxenham. On the 29th of October the goods
were removed to the auction-rooms of the defendant, and
the sale was advertised to take place to-day.—His Honour
granted the injunction.
Before Vise-aseneellor Wyman.
Dusteouee v. LEVY.—BYLPACH OP COVENANT.—FOR-
PErrene.—Mr. Thome& Slingsby Duncombe and Mrs.
Margaret Slingsby were the plaintiffs in this case, the
facts of which, as they appeared upon the bill, were as
follow:—Mrs. Slingsby having, for the accommodation of
Mr. Duncombe, accepted a bill of exchange drawn by him
for 1,2401., dated the 2nd of June, and payable six months
after date, and the bill having been subsequently endorsed to
the defendant, Mr. Lawrence Levy, the latter, upon its
being dishonoured, commenced two separate actions at law
against the plaintiffs • upon each of which be, in February,
1843, obtained judgment for 1,3461. Writs of execution
u the judgment were afterwards issued, and cer-
tainpon payments were made to Levy, by means of which
the amount due upon the judgment was reduced to 1,1601.,
On the 2nd of Auigust, 1843, the defendant, Levy, in respect
of the said debt of 1,1601., with other creditors of the plain
tiffs, signed a letter of license, whereby certain property be-
longing to the latter was assigned to &trustee, to secure repay
meet of the debts (including that of Levy for 1,1601.) men-
tioned in the letter. In consideration of which, and of the
punctual payment of the interest thereon ia the meantime ;
the plaintiffs were to be allowed till May, 1846, fur payment
of the debts, and the creditors, including Levy, covenanted
severally with the plaintiffs, in the meantime nut to institute
any suit, or take any proceeding against them for the re-
covery of such debts, upon pain of a forfeiture thereof ; the
letter in such ease being to operate as a release of the debt.
Notwithstanding. this provision, the defendant, Levy, in
February, 1813, ued execution upon the judgment against
Mr. Duncornbe lacend caused the sheriff to levy upon
his goods for the 1,3461.; although 1,1601. only. was then due
upon the judgment, all interest thereon having been regu-
larly paid according to the provisions of the letter, to De-
cember 1844. A summons in the action having then been
obtained by Mr. Duncombe, for Mr. Levy to show Cause
why the warrant, under which the levy had been made,
should not be set aside, Mr. Baron Rolfe, -before whom the
summons was heard, set aside the warrant as having been
sued out contrary to good faith. The bill, which was Sled
in April, 1843, prayed that the debt of 1,1601. might be de-
clared to have been satisfied, in consequence of the levy
which had been made by Lawrence in breach of his cove-
nant in the letter ; that the bill of exchange upon
which the debt was due might be delivered up
to be cancelled; and the defendant ordered to
enter up satisfaction upon the judgment against the
plaintiffs. The defendant, Levy, by his answer, stated that
Mr. Duncombe, in addition to the debt of 1,1601. was also
indebted to the defendant in 1,2761. upon another judgment
obtained in August, 1843, in a different action fora different
debt ; and that the defendant gave instructions to his attor-
ney en the 18th of February, 180, to levy execution upon
the latter judgment. That the attorney, or his clerk, by
mistake, instead of directing the sheriff to grant a warrant
upon the latter judgment, requested him to do so upon the
former, and that it washy reason of such mistake that the
levy had been made. Mr. James Bac3n, Mr. Hallett, and
Mr. 19 elford, for the plaintiffs, contended that the evidence
did not establish the case of mistake, and that the execution
having been intentionally issued, constituted a breach of the
covenant in the letter of license, whereby the defendant had
forfeited his right to the debt, or to any interest under the
deed.
Mr. Hominy and Mr. Southgate denied that the acts com-
plained of constituted a breach of the covenant in the latter ,•
and they contended that such breach, even if it existed, had
been committed by mistake, and that therefore the debt was
not forfeited.
His Honour said that two judgments appeared clearly to
have been obtained ; the one in February and the other in
August, and both in the same year, and execution had been
proved to hare been sued out upon the latter. It was in
that state of things that the directions had been given to the
sheriff by the de;endant's attorney. If there had been a
breach of the covenant contained in the letter of license, no
doubt the defendant's debt would thereby be extinguished.
But then mistake had been alleged ' • and if there
were any doubt as to that, he should send it to law.
If he were to decide that question then, it would not be in
favour of Mr. Levy. The evidence of Mr. Lewis, the attor-
ney of the defendant, did not bear out the statements upon
the answer. At the same time, great weight should be given
to the observation that Mr. Levy could not issue execution
upon one of the judgments without incurring a forfeiture,
while, upon the other, he could. The only question was,
whether by deciding a dry legal question, he should ex-
tinguish a debt of nearly 12001., or grant to Mr. Levy the
indulgence of a trial at law, and upon that question be
should take time to consider, and would, on a future day,
mention the conclusion to which he should come. The ob-
ject of the proceedings at law, if directed, would be to ascer-
tain, first, whether any act had been done by the defendant,
Levy, whereby he had incurred a forfeiture within the
meaning of the covenant in the letter of license ; and,
secondly, if that should be found in the affirmative, whether
the defendant, in his instructions to Mr. Lewis, in Feb., 184.5,
had directed him to proceed under the judgment of August,
and not under that of February, 1843.