Court Of Common Pleas, Th...
n1 ttLis cage Ur. Sergeant VAU1HAN obtained in last Trinity term a rule to show cause why an annuity granted by the defendant to thle plaintishlioild nat be set aside, and the deeds be delivered up to be ctnedled, on the groundt that part of the consideration money had been retalned, or returned when the annuity was granted.. The rale was obtained upon an affidavit of chetiefendant, stating tkat the eonaiderarioii-money, vlhieh-ws 6391., was paid to him for an An- naity of 10P.; that when the transaction iras abotut to be completed, Messrs. Ho vatd and Gibbs, whoahad negotiated it; clainaed of him two-sums one of 901. on an aeceunt. due to them, and another of 501. as ,orprocuration money.; and tiit lie consepted. .hitt they should. retain thesesurms, as-he wmas gieatly dLstieseedlfoi.rmaney, and was afraid'that it helnade any.objections to theitproposal, tiley would eontrive to put an end to thenegotiation. S 'ndeir these c reum-. stances, he applied to the Court for relief uindlr-the provisions bf die actof M3 Geo. III., cap. 141, see. El, which-, renders all such rcten.- tiois illegal. Mtr.SergeantTADDrthis day showed cause against the rule vwhich hia learued brother hId obtained. The-plaintiff, he saidi was a widow lady; residing in Miaryleaone, who, in the year 1814. bled been solicite(d by Ilessrs. Howard and Gibbs to purehase an annuity that the defendant was seeking togrant, on the joint security of his- self and a Nr. Elward Birminghiam, novf styling himself LIord Athenry. The defondant, wto is now In 'the rtules of the King s Bench prison, carried On at that timne the business of a conveyancer in Fig'tree.court, Temple, nnd wss usutilty employed by Messrs. Howard- and Gibbs in drawihg up the- conveyances which their dif- ferent money..ransacisons rendered ntecessary-a circussistance which mnust-have given him aknowledge of the usual charge nmade for re- gotiating annuities. The IORD CHIEF JUSTicE.-HiS knowledge was not likely to assist him much: his distress, it aippears, bore it down. Nr. Sergeant TADDY continued.-These factst were ell stated in an affidavit which the plaintiff had madef and which he then held in hig hand. In that affilavit his client farther swore, that she had re- gularly paid over to Messrs. IHoward and Gibbs the consideration.; money for the annuity whiebk they had applied to her to purchase, and that if any part of it had been retained by or returned to them, she was unacquainted with it, and had neither sanctioned nor autho- rized t Mr. Justice PAnx observed, that ia his opinion the case of Gorton v. Chantpneys w.s decisive as to the fate of this applica- tion. In that case the same person had been agent both to the grantor and to the grantee of the annuity. This person received back part of tbe cousideration-snoney at. the time the annuity was granted. The Court io consequenee set it aside, though it-was not shown that the grantee had personally authorized the retention of any part of it. AiLr. Justice BUBROUGH observed? that the case to which his lenrned brother referred had been decided In the Court of Common Pleas. The Court felt the hardship of that.decision; but consider- ed itself bound to make it, by the act of the 68d of the late King. Mfr. Sergeant TADDy contended, at somelengtb, that the case of Cc Gorton v. Chainpneys". established no particuiai rule or princi- ple of law, hut waas an isolated case, depending entirely upon cer- tain facts which were developed in the coarse of it. The COUnLT intimated that it could not accede to the doctrine lald down by the learned sergeant with regard to the case referred to. Mir. Sergeant TADDY pressed it, with great pertinacity, upon their Lordship,. The I4ORD CHIEsF JUSTICEL asked whetlier any affidavit had been made by Messrs. Howard and Gibbs with regard to this trans- action. Mr. Sergeant VAuItIAN.-None, my Lord; and that is a re- marlkable feature in the case. The LoyD CHIEF JUSTICE asked AIr. Sergeant Taddy whe- ther his client would not get enough, supposing the annuity deeds were cancelled, on her receiving the principal and interest now due. Mr. Sergeant TADDY wavs afraid that if the deeds werecancelled, his clientwould get nothing. ie then contendedtnat therewas a wide difference between the present case and the cases vwhich had formerly bcen decided on this subject. In all former cases the debt retained by the annuity agents had been oniv fictitious; in the present casethere was a real debt due to MUessrs. floward and Gibbs. The LORD CaiEr JUSTICE was of opinion that the distinction which the learne( sergeant had drawn could notmakeanydifference in their decision. The statute said that the consideration-money must not be retained or returned upon any account whatever, 80 that it was unimportant whether the debt was real or fictitious. Ir. Sergeant TADDlY azain contended, that this case could not bh decided by anv of these which had preceded it, but mtust rest en- tirely upon its owtn merit6. Hfe wouldl ask their Lordships twhether a person whom he had constituted as his agent for legal purpotes, had a right to constitute himself his agent for illegal purposes? Un- less their Lordships were inclined to sanction that doctrine, they must dismiss the present application. Mr. Justice GASELEE said, that the impression on his mind was, that the Court must set aside this annuity deed ; but then theywould onrly do it upon pavment of the principal andl interest due to the plaintiff. If the plaintiff were not satisfied with that arrangement, she had her remedy against her agents for their misconduct. Mr. Sergeant TADDY._-That remedy, as against Hloward and Gibbs, is good for nothing, mv Lord. The Loatn CHIEF JUSTiCE stated hih opininn to be, that the annuity must be set aside upon payment of the principal and interest tlue to the plaintiff: This case renminded bim of an observation made by Lord Eldon when he w.mi Lord Chief Justice of that Court- namely, that annuities generally concluded in the ruin both of the grantors and the grantees. Hie must own that he felt the hardship of this case as it applied to the plaintiff, and at first, whuile under the influence of that feeling, he waa inclined to dissent from the dlecision to which the Court had come in " Gorton v. Champneys." He Aaw, however, that the purposes of the statute of the 53d of the late King would be entirely defeated, if it were once admitted that it was not necessary to prove the privity of the principal to the retention of the consideration-money by the agent. 'his case was clearly similar to the case which had been referred to; and unless it could be distin- guished from it, must abide thc same decision. Mlr. Sergeant TADDY observed, that none ofthe cases which had yet been decided on points of this nature, decided that the agent who conducted the negotiation was the agent both of the grantot and the grahtee, and equally bound them both. In the case of "St. John v. Champneys " the Court had sustained the annuity- M1r. Justice PARK.-We sustained the annuitv in that case, be- cause the plaintiff in that case did net send hlis money through Howard and Gibbs, but through his bankers, on whom he drew checks. We were therefore of opinion, that what occurred after the paymeut of those cheeks to the defer.dant eould not be considered as at all binding the plaintiff. D-lr. Sergeant T,ADDY said, that in the Fresent case, it was clear, from the defendant's own affidavit, that the money had not been re- tained fmom him by Messrs. Howard and Gibbs, but had been paid eto them by him after lie had received it. The LXORD CHIEF JUSTICE: observed, that as far as he could perceive, the money had been returned to lessrs. Howard and Glibbs, in consequence of a previous agreement they had made with the defendant. Now, it made no diffcrence whether the money was retaitned by or returued to them. The plaintiff, by giving them her money, had vested them witlh authority which en- abled them to extort their own terme from the defendant, and must therefore be responsible for the congequences of their acts. He was of opinion that this annuity must be set aside upon payment of principal and interest; and for that reason thought that the whole matter of it ought to be referred to the considerationof the Prothonotary of the Court. The other Judges concurred in this opinion, and the matter was in consequience ordered to be so referred. Air. Sergeant TADrY hoped that the insurar.ce which the plaintiff had effected on the defendlant's life might also be referred to thecon- sideration of the Prothonotary. The COURT replied, that the whole matter should be submitted to the adjudication of that ofricer. COURT OF COMMON PLEAS, THunSDAY. Nov. 25. CA7tLTOX V. POItTERt.