Page:The English Reports v1 1900.pdf/772

On the 10th of November 1703, the executors of Lawton, and the said Christopher Mountague, exhibited their bill of interpleader in the Court of Chancery, against both the appellant and respondent, for the direction of the Court, to whom they might safely pay the £500; and this cause being at issue, and witnesses examined on both sides, the same was heard before the Lord Keeper Wright, on the 94th of January 1703; when his Lordship declared, that it was neither confessed or proved in the cause, that the said money was in trust for the defendant Gage, but it appeared, that the defendant Lister had a good title to the whole £500; and, forasmuch as the same had been brought into Court by the plaintiffs, in order to the obtaining an injunction, his Lordship did order and decree, that the said £500 should be paid out of Court to the said defendant Lister; and that the plaintiff's should pay her interest for the same, at the rate of £5 per cent. per ann. from the time of its being so brought into Court; and it was referred to the Master to compute such interest; and, upon payment of the said £500 out of Court to the said defendant Lister, and also upon the plaintiff's paying her the arrears of interest, it was ordered and decreed, that she should deliver up the said note of the plaintiffs to be cancelled. And it was further ordered, that the defendant Gage should pay to the plaintiffs, and also to the said defendant Lister, their respective costs of that suit, to be taxed by the Master.

From this decree the defendant Gage appealed; and, on his behalf it was insisted (F. Wilkinson), that it was incumbent upon the respondent to make out, by evidence, the gift pretended by her answer; but which she had not done, nor was there any proof in the cause that she had, at any time during Lady Boteler's life, the said note for £500 in her possession, or that she ever made any demand thereof, or set up any title thereto; besides, it was the most improbable thing imaginable, that Lady Boteler, who loved her money well, should in her life-time give away so large a sum as £500 to a person who was no manner of relation to her. That this totally contradicted the pretence of a nuncupative will, which was the title first set up by the respondent; and, when that failed her, she knew so little of any other title, that she offered £250 as a composition. That it appeared, from all the circumstances of the case, that this note was a trust for Lady Boteler; for it was admitted by the respondent herself, in her answer, that the £500 in question was originally Lady Boteler's money; and it was proved that she had [6] great sums of money, and used to lend it out in trustees names, for the purpose of concealment. That this was always esteemed, by Mr. Lawton, to be Lady Boteler's money, and that she received the interest of it; and, during all her life-time, which was near five years after the money lent, the respondent never pretended to demand either principal or interest of Mr. Lawton. That the note was made payable to the respondent, or bearer; and, as Lady Boteler had always the note in her custody, she had the same right to demand the £500 of Mr. Lawton, and to give him a legal discharge, by delivering up the note, on payment of the money, as if it had been taken in her own name.

On the other side it was said (S. Hervey, B. Nelson), that the supposed trust of the £500 was no where proved in the cause on the part of the appellant; but that the contrary was fully proved, on the part of the respondent. As to the possession of the note, it was proved, that about two years before Lady Boteler died, Mr. Lawton came to pay her half a year's interest for the £500, and that the respondent, being then busy below stairs, Lady Boteler received the interest; and, when the respondent came up, gave it to her, saying, here is Lawton's interest-money. And, as to the offer of the £250 as a composition, it was true, that the appellant had examined the respondent's agent, to prove that fact, but it was equally true, that the agent had not proved it; and that therefore his deposition was not read at the hearing of the cause. That the appellant's proceedings had been very vexatious and expensive, and rendered the intended kindness of Lady Boteler very prejudicial to the respondent, and her family; and therefore it was hoped, that the decree would be affirmed, and the appeal dismissed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed, and the decree therein complained of, affirmed; and that the appellant should pay the respondent £20 for her costs. (Jour. vol. 18. p. 51.)