Page:The English Reports v1 1900.pdf/652

From this order the appellant appealed, insisting (J. Dunning, J. Coxe, T. Erskine), that the letters, accounts, and payments above stated, were full evidence of an agreement made by Godfrey Clarke the father, and Godfrey Bagnall Clarke the son, with the appellant, to pay and secure to him an annuity of £200 as a recompence for his labour during many years, in and about the said Godfrey Bagnall Clarke's education; and that such labour was a good consideration to support the recompence or annuity agreed for, which was bona fide purchased by the appellant's labour; and if such promised and expected recompence had not been made, the appellant would not, in 1763, have travelled into Italy, or remained there, and in other foreign parts of Europe, with Mr. Clarke, for three years; nor, after returning home with him, would the appellant have sat down contented with the annuity as a competent recompence, if it had been any other, or he had conceived it any other than an annuity for his life. That the annuity of £200 agreed to be paid and secured to the appellant, was agreed and intended to be paid and secured to him during his life, which, though not expressed in the letters, was upon the subject matter clearly implied throughout the whole, in the words used by the parties, there being no words to limit or confine the annuity to any shorter time; nor was there any just ground for maintaining that it was an annuity intended only for Godfrey Clarke's life, or for his son's life, and not for the appellant's life. That the agreement to pay and secure an annuity of £200 to the appellant, being well founded on the consideration of his labour, whereby he actually purchased the annuity; and that labour, though past, being a good consideration to attend the agreement, and to support and enforce it during the whole of the appellant's life, there was no just or reasonable ground for holding it a voluntary or gratuitous bounty, [382] or a nudum pactum. That the apellant's claim being out of a trust estate, sufficient to answer all the purposes intended by the trust, it was conceived that the trust ought to receive every liberal and favourable construction for the appellant. And that his demand not being against losing creditors, or unprovided younger children, but only against volunteer trustees, who had acknowledged a sufficiency of assets in their hands for every payment of the testator's debts, and their being ready and willing to pay the arrears and growing payments of the appellant's annuity, according to the directions given by the testator in his will for the payment of his debts, if the appellant could make out his case, which he conceives he had done; he therefore humbly hope the relief prayed by his dismissed bill, and such further relief as the nature of the case should appear to require, would be adjudged to him.

On the part of the respondents, the committee of the lunatic, it was said (C. Ambler, L. Kenyon), that there was no evidence produced by the appellant to shew that Godfrey Clarke ever promised to allow him an annuity of £200 or any other annuity for the life of the appellant, as claimed by his bill. That the said Godfrey Clarke did not leave any real or personal estate, after payment of his just debts, to answer the annuity of £200 claimed by the appellant for his life, even if he had been able to have supported his demand by any proof of an agreement by the said Godfrey Clarke to pay or secure the same. That the said Godfrey Bagnall Clarke never made any promise to pay or secure to the appellant an annuity of £200 or any other annuity, for his life; and that the appellant in the account of his demand on the said Godfrey Bagnall Clarke, delivered a little before the date of the will of the said Godfrey Bagnall Clarke, made no claim in respect of an annuity; nor did the said Godfrey Bagnall Clarke, by his will, subject his estate to the payment of any annuity to the appellant, although care was thereby taken to provide for all his creditors, and annuities were given to other persons by the said will.

The respondents, the trustees also appeared by counsel, and contended (J. Mansfield, J. Madocks), that Godfrey Bagnall Clarke never engaged to pay the annuity claimed by the appellant; and if he had, that such an engagement being gratuitous and voluntary, and not supported by any consideration, could not have been obligatory upon him or his representative. That the appellant himself was conscious, that the bounty of Godfrey Clarke the father, from which he had received for some years the annuity of £200 a-year, was expected and understood to cease with his life; and that his son was under no obligation to continue it, appeared