Page:The English Reports v1 1900.pdf/852

Chancellor King; when the point relied upon by the respondents was, that the deed-poll was not executed by Mr. Penne; and thereupon his Lordship was pleased to direct, that there should be a trial at law at the sittings in London for the Court of King's Bench, to try whether the said deed-poll of the 20th of April 1714, was the deed of the said Thomas Penne or not; after which trial had, either party was to be at liberty to resort back to the court for further directions.

Accordingly, on the 28th of May 1730, the said issue was tried before the Lord Chief Justice Raymond, and several witnesses were examined on both sides; when the jury, to the intire satisfaction of the court, and without going from the bar, gave their verdict that the said deed-poll was the deed of the said Thomas Penne.

On the 3d of July 1730, the causes came on to be finally heard upon the equity reserved; when it was insisted upon for the respondents, that the deed-poll being a grant of a chose en action, without any valuable consideration, was void, and that Mr. Penne having endeavoured to arrest the appellant Robert, and he having absconded, therefore the said deed-poll ought not to be established, since it would be making the appellant Robert take an advantage by his own default: whereupon his Lordship was pleased to declare his opinion, that the said deed-poll was a good deed; but that the intention of the obligor and obligee in the bond, being that the obligee Mr. Penne might at any time during his life, call in the money owing to him by the obligor Mr. Richardson; and the intention of the obligee being only to grant to the appellant Elizabeth, such sum of money as should be owing from the obligor to the obligee at the time of his death; and it appearing to the [127] court, that the obligee in his lifetime, endeavoured to call in the money from the obligor, and that it was the obligor's fault that the money was not got in; therefore his Lordship did not think fit to give the appellants the relief sought for by their original bill; but decreed, that it should be referred to the Master, to take an account of what was due from the appellant Mr. Richardson to the respondents, the executors of Mr. Penne, with interest from the time the monies due were severally advanced, and also the costs of the action at law on the said bond, and to tax the appellants their costs at law of the aforesaid issue; and what should be so taxed, was to be deducted out of the monies which should be found due to the respondents, the executors of Mr. Penne, and that the appellant Mr. Richardson should pay the residue, at such time and place as the Master should appoint; and that in the mean time, an injunction should be awarded to stay all proceedings at law; and that upon payment, the bond and all the notes should be delivered up, and that at the appellant's expence satisfaction should be acknowledged on the record of the said judgment; but if the appellants should not pay the money at the time and place so to be appointed, the original bill was to stand dismissed with costs, and the injunction to be thereupon dissolved.

The appellants apprehending this decree to be erroneous, appealed from it; and on their behalf it was said (P. Yorke, T. Lutwyche) to be manifest from the preamble to the deed-poll, that it was Mr. Penne's express intention, that the bond and all the advantages thereof, should remain wholly and intirely for the benefit of the appellant Elizabeth after his death; but this could not be, if Mr. Penne was to have a right of calling in the monies due upon this bond in his lifetime for his own benefit; for if the money had been paid, the bond ought to have been delivered up, and then it could not remain for the benefit of Mrs. Richardson besides, the deed-poll was absolute, and not subject to any condition, or power of revocation. That though Mr. Penne did sue the appellant Robert upon this bond, yet it ought to be presumed he did so, out of regard to the appellant Elizabeth, and in order to recover and otherwise secure the money due thereon for her benefit, agreeable to what appeared to have been his express intention; and therefore, as he did not recover the money, his executors ought to be considered as trustees for the appellant Elizabeth, more especially as Mr. Penne's will was totally silent respecting this bond; and as there was not the least proof that by putting the same in suit, he designed to disappoint her of any benefit she was entitled to under the deed-poll, or to withdraw his intended bounty from her. That the appellant Robert's absconding, or any other act of his, ought not to turn to the prejudice of the appellant Elizabeth, the deed-poll and bond being to remain for her sole and separate benefit; for which reason, she ought in this case to be considered as a third person, distinct from her husband, who claimed no other right thereto, than by the agreement of his wife since Mr. Penne's death. That by