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In the cases of Wiswould v. Goetze and Simpson v. Jones, which came on for argument a few days afterwards, upon motions involving the same question, respecting the sufficiency of the retainer given by the plaintiffs, the Lord Chancellor recognised and acted upon the principles previously laid down in Lord 'v. Kellett.
Ex parte EVELYN.
Nov. 12, 19.
In this case administration had been taken out to the Where the
next of kin of personal estate and effects of the lunatic so long as a deceased the lunatic's next of kin continued to be of unsound lunatic was of
unsound mind, mind; and the administratrix had, in the usual form, though not so given bail, which had justified in double the value of toy
quisition, a the estate. The petition of the administratrix prayed transfer of the a transfer of the funds belonging to the lunatic's estate sonal estate
lunatic's perinto the names of the administratrix and her two bail.
was directed to be made to
the person to Mr. Ching, in support of the petition.
whom administration durante animi
vitio of such The LORD CHANCELLOR ordered the petition to stand
next of kin over, that he might make inquiry as to the form of the had been
granted, agreeadministration which had been granted during the inca- ably to the pacity of the next of kin, against whom no commission practice of the
Ecclesiastical had issued.
The LORD CHANCELLOR this day read the following communication, which he had received from Dr. Lushington.
“ It is the practice of the Ecclesiastical Court to grant administration for the use and benefit of a lunatic, though the person alleged to be so has not been found a lunatic by inquisition. When such a case occurs, the Ecclesiastical Court requires affidavits, stating the fact of lunacy, and that no inquisition has been had, and, of course, no committee appointed. The Court then grants administration to the next of kin of the lunatic, for the use and benefit of the lunatic pending the lunacy, and it requires sureties in double the amount of the property, and such sureties must justify.
“ Such is the practice of the Court; and the reason I apprehend to be this, that, if such grants were not made, either the property might not be administered at all, or be administered by a creditor; or that parties might be compelled, in cases where it was neither necessary nor expedient, to apply for commissions of lunacy, in order to get a committee appointed, who might take the administration. I believe, too, that another reason might be assigned; viz., that there are cases in which the Chancellor might not deem it necessary to grant a commission, though satisfied of the unsoundness of mind. These grants are called by Oughton, administrations durante corporis aut animi vitio. (a) The power of the Ecclesiastical Court to grant them is recognised in many cases, particularly in Hills v. Mills (6) and the cases there quoted; and I believe that no exception has been made in cases where the person has not been previously found a lunatic by inquisition. Indeed, in poor cases, this would be impracticable.
“ In Re Crump (c) such administration was granted during the incapacity of an executor. In Re Hand
stone (a) Ord. Jud. 324, n.
(c) 3 Phill. 497., and see Re (6) i Salk. 36.
Hinckley, 1 Hags. 477.
stone, which was an application of mine, it was refused, because I asked for the grant without justifying security.”
The LORD CHANCELLOR, upon the result of the preceding communication, directed that the transfer of the fund should be made to the administratrix only, and not to her bail.
JENKINS v. PARKINSON.
Nov. 5. 25.
JENKINS, who was lessee of certain lands at Lisson Where a coveGrove, under Mr. Portman, leased a portion of the a
e agreement for lands to Dr. Cockburn by an indenture of the 4th of a lease was.
broken, and a July 1812, wherein he also covenanted that he would not, verdict obduring the term, erect or suffer to be erected any tained for
Y 15001. as buildings whatever on that part of the property lying damages for eastward of the lands thereby demised, under the
but the Plainpenalty of 50001., to be paid to Dr. Cockburn.
tiff in the action died
before the On the 3d of August 1825, Jenkins agreed to demise judgment was
:. perfected, so to Parkinson all that part of the premises comprised in that t Portman's lease, which was not included in the lease to mages were
lost at law, Cockburn ; subject to a covenant, whereby Parkinson the Court, on undertook to indemnify Jenkins against any breach of a bill by his
representthe covenant contained in the lease to Cockburn. atives for spe
ance of the Parkinson entered into possession under this agree- agreement, re
fused a writ of ment, and caused houses to be built upon the land referred to in the covenant with Dr. Cockburn, where- for the
amount. upon the latter brought his action against Jenkins. That action was defended by Parkinson, who suffered a verdict to be taken against him for 50001., subject to a
reference, whereby the damages were eventually reduced to 1500l., together with the sum of 4001. for costs.
Jenkins was afterwards obliged to pay the 15001. ; and not being able to obtain the money from Parkinson, he brought his action, and obtained a verdict over against him for 15001. as damages, and 4001. as costs, subject to be reduced on taxation.
Jenkins shortly afterwards died, and the costs not having been then taxed or the judgment perfected, in consequence, as was alleged, of the conduct of Parkinson's attorney in keeping back the papers, his personal representatives found themselves unable at law to take advantage of the verdict in his favour, and they thereupon filed their bill against Parkinson for a specific performance of the agreement of the 3d of August, 1825. The bill set out very fully the circumstances already stated, and it also prayed that in the meantime, and till a specific performance should be decreed, a writ of ne exeat regno, marked with the sum of 15001., might issue against the Defendant,
On an application made in the vacation, the Lord Chancellor granted the writ, and the Defendant having subsequently put in his answer, wherein he distinctly and positively denied the allegations against him with respect to the delay in perfecting the judgment, a motion was now made on his behalf that the writ of ne exeat might be discharged.
Mr. Pepys and Mr Crombie, for the motion.
It is an established principle that a ne exeat will not be granted except for an equitable debt actually due ;
King v. Smith (a), Ex parte Duncombe (6), Amsinck v. Barklay (c), Whitehouse v. Partridge (d); whereas here the alleged debt being the amount of damages recovered in an action for the breach of covenant, it is a purely legal demand, and if lost by the death of the plaintiff at law, before the judgment was perfected, may still be recovered by a new action. Blaydes v. Calvert (e), where a writ of ne exeat was refused on a bill for specific performance of an agreement to give a bill of exchange to secure the debt of a third person, is exactly in point. The accidental circumstance by which the effect of the verdict has been lost in this instance does not give a jurisdiction to the Court, and even if it did, that would not alter the legal character of the debt.
Upon the frame of the present bill, besides, it is quite impossible to sustain the writ. The Defendant has never accepted a lease, and the matter still rests in fieri, the contract being for a future lease, in which a covenant of indemnity is agreed to be inserted. The Plaintiffs come into equity for a specific performance of the agreement ; in other words, to have a lease executed which shall contain the particular covenant in question. They do not ask of this Court to take upon itself the jurisdiction of assessing and awarding damages, a jurisdiction which their counsel well knew could not be maintained. They confine themselves simply to the proper equitable relief; the only relief which they can obtain upon this bill, and which they will obtain, almost as of course, by a decree referring it to the Master to settle the terms of a lease upon the basis of the agreement. But though such is the frame of the
suit, (a) i Dick. 82.
(d) 3 Swan. 365. (6) 2 Dick. 503.
(c) 2 J. & W.211. (C) & Ves. 594.