1835.

Cox

U.

PEACOCK.

liable to costs.

The precedents, however, will be found

to contain an award of costs (a).

TINDAL, C. J., observed that it would be convenient that the like rule should prevail in all the courts, and therefore that the court would speak to the other judges on the subject: and, on a subsequent day, he intimated that they were of opinion that the plaintiff was entitled to judgment of assets quando acciderint both for debt and costs.

(a) See Tidd's Appendix to the 9th edit. of the Practice, pp. 187 to 190, where the precedents will be found generally to contain no a

Rule accordingly.

ward of costs on a judgment of assets in futuro, either on a plea of plene administravit, or of plene administravit præter.

Friday, May 29th.

In a memorial

of an annuity in

rolled pursuant

to the 53 Geo.

3, c. 141, s. 2,

one of the co

lumns was head.

FLIGHT v. Lord LAKE.

COVENANT on an annuity deed. The defendant, after setting out the deed on oyer, pleaded that no memorial of the indenture stating for whose life or lives the annuity was granted, had been inrolled pursuant to the statute ed thus-"Per- 53 Geo. 3, c. 141, s. 2. The plaintiff replied that a methe annu- morial was duly inrolled. The cause was tried before ity is granted:" Tindal, C. J., at the Sittings at Westminster after the last term. The clause of the statute above mentioned gives the form of the memorial as follows:

son for whose

-Held, suffici

ent.

It appeared that a memorial of the annuity in question had been inrolled in the form prescribed by the above statute; but that the heading of the sixth column was as follows: "Person for whose the annuity is granted." On the part of the defendant, it was objected that this defective memorial avoided the annuity. A verdict hav ing been taken for the plaintiff, with liberty to the defendant to move to set it aside and enter a nonsuit on this ground

Maule now moved accordingly.-He submitted that the memorial was insufficient, the form given by the statute not being pursued strictly; and that, if the omission were to be supplied by intendment, there could be no more reason for interpolating "life" than any other word.

TINDAL, C. J.—The only question is, whether it is possible to misunderstand what was intended. The instrument is headed-" Memorial of an annuity granted, which is inrolled by virtue of an act passed in the 53rd year of the reign of his present Majesty," &c. It clearly appears, therefore, to have been intended to be a memorial according to the form prescribed by this act. The several columns are properly headed, with the exception of one, which is imperfect-" Person for whose the annuity is granted." Seeing that the statute relates only to annuities determinable on a life or lives, how can we reasonably intend that any other word than "life" was the word accidentally omitted. All the information which the statute requires is substantially given to the parties. Some allowance must be made for clerical infirmity in such a case.

The rest of the court concurring

1835.

FLIGHT

ย.

Lord LAKE.

Rule refused.

1835.

Friday, May 29th.

A devisee in fee may by

hand and seal disclaim an estate devised

to him, without a formal disclaimer in a

court of record.

BEGBIE V. CROOK.

THIS was an action of replevin. The defendant, as deed under his bailiff, made cognizance for six years' rent due to T. Veal and J. W. Baugh. Plea, non tenuit modo et formâ. At the trial before Tindal, C. J., at the Sittings at Westminster after last Hilary Term, it appeared that the premises in respect of which the rent accrued were devised by Colonel Solway, in trust, to T. Veal, J. W. Baugh, and one H. Lloyd; that, on the 21st June, 1827, Lloyd, who had never acted as trustee, by deed disclaimed all interest in the freehold and copyhold property devised to Veal, Baugh, and himself; and that, before the last quarter's rent accrued, Lloyd died. On the part of the plaintiff, it was contended that the deed of 1827 did not operate so as to divest Lloyd of the legal title vested in him by the devise, and consequently that (except as to the last quarter) cognizance should have been made in the names of the three trustees. A verdict was taken for the whole rent due, with leave to the plaintiff to move to reduce it to the amount of the last quarter.

Humfrey, in Easter Term, obtained a rule nisi accordingly.

Talfourd, Serjeant, and Archbold, shewed cause.—That there may be a disclaimer by deed, is clear: the only doubt suggested in any of the cases is, whether it may be by parol. In Townson v. Tickell, 3 B. & Ald. 31, it was held that a devisee in fee may by deed under his hand and seal disclaim an estate devised to him, without a formal disclaimer in a court of record. [Gaselee, J., referred to Doe d. Smyth v. Smyth, 9 D. & R. 136, 6 B. & C. 112, where a devisee of lands refused to take them under the will, but claimed to be entitled to them as heir at law, and

it was held that this was no disclaimer, and that he might afterwards recover possession of the lands as devisee.] In Nicholson v. Wordsworth, 2 Swanst. 365 (where all the cases on disclaimer are collected), the purchaser of an estate filed a bill against the defendants to compel them to execute a conveyance. It appeared by the answer that the defendants had been made executors under the will of one Richard Wordsworth, but that Hutton (one of the defendants) had renounced probate, and refused to act; and had by indenture bargained, sold, released, quitted claim, and conveyed to the other executor, his heirs and assigns, his estate in the property. It was contended on the one hand that the release was equivalent to an acceptance of the devised estate; and, on the other, that the release, being made with an intent to disclaim, was equivalent to a disclaimer. Lord Eldon said: "It seems to have been taken for law from an older period than the date of Crewe v. Dicken, 4 Ves. 97, and sanctioned by Lord Hale, that, if an estate is conveyed to two persons in trust, and one will not act as trustee, the estate vests in the other. If, therefore, the party executes a simple instrument, and under his hand and seal declares that he disclaims—that is, dissents from being a trustee-the fact must be taken to be that he is no trustee. But, in Crewe v. Dicken, the difficulty occurred, that, instead of doing this, the party conveyed his estate to the other trustee." And, after alluding to Lord Loughborough's opinion upon the effect of the release, his lordship added: "If the essence of the act is disclaimer, and if this point were res integra, I should be inclined to think, that, if the mere fact of disclaimer is to remove all difficulties, and vest the estate in the other trustee, a party who releases, and thereby declares that he will not take as trustee, gives the best evidence that he will not take as trustee :" and he ultimately decided, that, where one trustee releases with the intention to disclaim, the property vests in the

1835

BEGBIE

บ.

CROOK.

other, the assenting trustee. And this decision of Lord Eldon is assented to by Bayley, J., in the case of Small v. Marwood, 9 B. & C. 308, 4 M. & R. 181.

The court called upon Humfrey to distinguish the case from Townson v. Tickell.-He admitted that no case was to be found impugning the authority of Townson v. Tickell, and that it was not distinguishable from the present.

TINDAL, C. J.-We must decide this case thority of Townson v. Tickell, which seems conformable with reason and good sense.

PARK, J.—I am of the same opinion.

Tickell is confirmed by Lord Eldon in Nicholson v.
Wordsworth, and is not impugned by Doe d. Smyth v'
Smyth.

The rest of the court concurring