1779. JAMESON t. SKIPWITH. [ 36 ] come in competition with creditors for valuable consideration: but reserved the consideration of the doctor's claim till the account was taken; and then, there being a surplus, he was paid.—In the case of Lady Mary Herbert v. Earl Powis, April, 1776, 6 Bro. P. C. 102, several of the considerations were not of any kind of value, and could not be estimated in money, and therefore would not have given her any rank as a creditor. Lord Chancellor:-Did not the House of Lords take some of those considerations to be valuable? Mr. Ambler for the defendants:-The letters amount to no more than that the father had an idea of giving the plaintiff an annuity, but indefinitely. The payment does not amount to a promise. All that passed, as to preparing the security, was in the life-time of the father. The whole does not amount to such a promise as either a Court of law or this Court could compel them to perform; it is merely an intention, not an actual agreement. The performance of a promise cannot be compelled at law without some consideration. This Court has frequently refused to perform voluntary agreements, even where steps have been taken towards putting them in execution. 1 Ch. Ca. 302. In Dr. Young's case there was a bond. A voluntary bond, or note so given, should be postponed to all debts. The case of Lady Mary Herbert had very meritorious considerations. Here it is too uncertain for the Court to say what duration the annuity was to have; it is quite sufficient to say the Clarks meant it for their own lives. In 1774, Godfrey Bagnal Clark's will was made; that was a proper time to have given the annuity, which was not necessary to be done by deed,he gave by his will an annuity of £400 to his brother, and of £25 to a servant, and then charged the estate with his debts. Here was no contract, no consideration, it is uncertain, and not sufficient to bind the real estate. Mr. Price (on the same side).-There are two grounds laid in the bill, neither of which is proved: first, that the engagement was, at first, made by the plaintiff in hopes of a permanent provision; secondly, that he had refused other engagements. This is stripped of every circumstance that has been relied upon in other cases. A court of equity must have certain precise grounds for carrying any thing into execution. In all the receipts, it is treated as a yearly payment, a mere yearly bounty at the will of the giver. Lady Mary Herbert's case was solely this: she was entitled, as eldest daughter, to administration to her father the Marquis of Powis; Earl Powis obtained administration, and there was a promise that, if she would renounce, the terms should take place. There was also a dispute about the guardianship of her niece, whom Lord Powis wanted to marry, and Lady Mary procured Lady Lady Herbert, of Cherbury, to be appointed guardian, by whose consent the match took place. These were the considerations *. It is impossible to conceive the Clarks thought of a permanent provision for Jameson. Mr. Mansfield (on the same side).—The first question is, whether here is any debt, any engagement to pay to the plaintiff an annuity for his life?-No such engagement appears by the letters, nor by whom it was to be paid, only that the son was to speak to the steward about a charge, but to, or by whom, does not appear. It is enough that there is nothing certain, or fixed, in evidence. It was merely to be a reward for past services; then it is nudum pactum and would not support an action, much less such a claim as this. It is not very accurate to state that a consideration which would be sufficient in a deed would be so here.-Considerations are not necessary to deeds, if there is no bad consideration to vitiate them, as in Cray v. Rooke, (For. 153.) This is the only view in which considerations are important in deeds. Past services are not a consideration at law, nor in this Court. Your Lordship will not convert such a consideration as this into a debt, and charge the lands with it under this will. Mr. Madocks (for the trustees).—Where the party lies by, and does not make his claim in the life-time of the person by whom the contract should be performed, equity will not afterwards assist him. This is not an agreement to charge the estate either by the father or the son, nor is it so stated in the bill. It is a claim of an assumpsit on a promise that the plaintiff should have an annuity for his life, and the fact of payment is all from which the Court is to infer the contract. It is a mere personal promise, either from the father or the son. Mr. Attorney-General in reply.-We are not praying a remedy against creditors for valuable consideration, but only the execution of a trust, created by the will of Godfrey Bagnal Clark, for the payment of all his just debts, whether by simple contract or otherwise, and against volunteers who take under the same will. We are not contending that this could be enforced at law against Clark, but that it is what he understood as a debt. Dr. Young's case fully founds me in this distinction. It was a bond purely voluntary, for a good, but not valuable consideration. Lord Hardwicke laid down the distinction between debts for valuable consideration and just debts, and that, after debts on valuable con There were also other considerations in that case, such as Lady Mary declining the place of dame de' honneur to the Queen of France (which she had solicited), upon the Earl's promise to pay the annuity.-See the case at large, 6 Bro. P. C. 102 (a). VOL. I. [(a) Ed. Toml. vol. i. p. 255.] D siderations, 1779. JAMESON v. SKIPWITH. [ 38 ] siderations, those ought to be considered which were upon honorable considerations, and which a man ought to pay, though he could not be compelled. It is material that this annuity come out of the son's allowance. The father was only a tenant for life, and so meant to make it a family debt. Upon altering that method a security was thought of-to be entered into by whom? by both -they both must join in order to do it. Lord Chancellor.-The words of the charge are, "all my debts "by mortgage, bond, or simple contract." In 1753, it would have been a claim only against the estate of Godfrey Clark: and it would be impossible to say, that there was any engagement for valuable consideration with Godfrey Clark. Had the plaintiff, when he came into the service, stipulated for the two payments, it would have been a valuable consideration, but it would have affected the father's estate; from whence it could not be received, for the estate is deficient. On the part of the son, there is no evidence to prove any agreement, or what the annuity was to be.Every part of valuable consideration, and every form of stipulation, seems to be wanting. No bond is given by the son for the annuity, therefore it is not to be contended, that it could be recovered against the son, or his heir adversely. If a bond is given pro turpi causa, or which is subject to be rescinded, the bond is no security, but if it is given gratuitously, it may be recovered at law: in this Court it will be postponed to creditors, but at law, there is no such defence. This Court postpones the gratuitous bond, it repels it from its rank, from its not having a valuable consideration, but the Court has never raised an act to an higher rank on account of its consideration. If the grant in the Duke of Wharton's case had been in the words of this will, voluntary bonds might have been recovered. The question is, whether this is a debt by mortgage, bond, or simple contract; it is totally impossible in a legal sense that it should be either; the outside that can be made of it is, that there was an intent to carry on the payment to the death of Jameson. I suspect there was such an intention, but it is impossible to gather it farther than as a suspicion,-there is not enough in the correspondence to be called proof. The bill must be dismissed, as not having made out the intention of the son, by the words, to charge the estate with any debts, but mortgage, bonds, or simple contracts; or that it was his intention to charge the estate with £200 per annum for Jameson's life. Bill dismissed without costs. Decree affirmed in the House of Lords, 14th March, 1780(a). [ (a) 1 Bro. P. C. ed. Toml. 376.] PRATT PRATT V. TESSIER. 1779. THE plaintiff having filed his bill for a discovery, the defendant Lincoln's Inn put in his answer, to which the plaintiff took a great number Hall, 1st Seul beof exceptions. These being referred to Master Pechell, he, think- fore Easter Term. ing them all frivolous, reported the answer sufficient. Upon this Exceptions to anthe plaintiff amended his bill, by striking out the whole charging swer,the anpart and the interrogatories grounded upon it; and, upon the answer coming in to this amended bill, the plaintiff took seventy exceptions to this answer. Mr. Mansfield, for the defendant, moved, that this second set of exceptions should be referred to the same Master to whom the former set had been referred; which was opposed by the plaintiff's counsel, who insisted that the alterations were such, that this was quite a new bill, and any other Master as competent judge of the relevancy and sufficiency of the parts referred to in auswer against which exceptions had been taken, as the Master to whom the former exceptions were referred. But Lord Chancellor said, that as the allegations in the former part of the bill were the same, and the other matter must be connected with it, it was better the second exceptions should be referred to the same Master with the first, and therefore granted the motion (a). [(a) Lord Eldon, upon this case being cited, expressed a doubt, obviously founded upon the correctest practice of the Court, whether these exceptions should have been proceeded upon at all. The practice being, that if exceptions are taken, and the answer is insufficient; and the plaintiff not moving to amend, the defendant answers the exceptions, when that answer comes in, the plaintiff cannot add to the number of the old exceptions. Partridge v. Haycraft, 11 Ves. 570, in which case it was accordingly deter mined, that where the plaintiff has ficient; plaintiff amends; upon answer coming in seventy exceptions taken; mo swer reported suf tion that these exceptions be refer Master with the former set, granted. red to the same EASTER TERM. 19 GEO. III. 1779. [ 40 ] (f) THE PARISH OF ST. LUKE OLD STREET V. THE PARISH OF ST. LEONARD SHOREDITCH. S. C. 550. A BILL filed by the parish plaintiffs, in order to have an is- Bill will not lie sue directed to describe and ascertain the boundaries between to have an issue it and the adjoining parish the defendants. The cause being heard (f) Vide 2 Anst. Rep. 586; and Lord Chief Baron Macdonald's observations upon the above case, 395, ibid. to ascertain boundaries between two pa rishes. 1779. at Lincoln's-Inn- Hall, Lord Chancellor doubted whether a bill would lie for this purpose, and ordered the counsel for the plaintiffs to look into the precedents and speak to it in term. And St. LEONARD'S. coming on now, St. LUKE'S v. [ 41 ] Mr. Madocks and Mr. Macdonald, in support of the bill, said there were several cases in which such bills were proper, and cited Lethulier v. Lord Castlemain, on the boundaries of the manors of Aldersbrooke and Wanstead, Sel. Ca. Ld. King, 60. (12 Vi. 267, pl. 29). Also, a similar issue was directed in Bowes v. Lord Darlington, 1755 (a). The bill lies as tending to prevent a multiplicity of suits. In the Mayor of York v. Pilkington, Lord Hardwicke allowed the demurrer because there was no privity, but afterwards changed his opinion, and over-ruled the demurrer. (1 Atk. 282.) There Lord Hardwicke laid down in what cases bills of peace were proper; such as in the case of duties, where many persons are interested who are not before the Court. Such a bill is proper for tithes, Brown v. Vermuden, 1 Ch. Ca. 272. So for a suit to a mill.-Sir Lionel Pilkington's case in the duchy. So for settling general fines to be paid by the tenants of a manor, Cowper v. Clark, 3 P. W. 155, though not for a single copyholder, to pay a reasonable fine. Duke of Somerset v. France, Fortesc. 42. ibid. 44.-In 2 Atk. 488, Lord Teynham v. Herbert, it is laid down, that where the right cannot be settled in one or two actions, the party may come to this Court at first.-The case of Webb v. Conyers (b), was also mentioned, as an instance of such a bill between two lords, to try the boundaries of their manors, but it appeared the bill was dismissed. Lord Chancellor said, if he should entertain a bill and direct an issue in such a case as this, he did not see what case would be peculiar to the courts of law. He did not know how to extract a rule from the Mayor of York v. Pilkington. Where there was a common right to be tried, such a proceeding was to be understood; the boundary between the two jurisdictions was apparent. That is the case, where the tenants of a manor claim a right of common by custom, because the right of all the tenants of the manor is tried, by trying the right of one; but, in this case, he saw no common right which the parishioners had in the boundaries of the parish. It would be to try the boundaries of all the parishes in the kingdom, on account of the poor laws. He apprehended these issues had usually been directed by consent of the parties. He therefore dismissed the bill (c). [(a) For the proceedings in these causes, vide 1 Eden, 270.] ((b) Should be Wake v. Conyers, since reported 2 Cox, 360. 1 Eden, 331.] [(c) See the cases upon this point collected and arranged in the note to Wake v. Conyers, 1 Eden, 337; and particularly Atkyns v. Hutton, 3 Anst. 387; Winterton v. Lord Egremont, cited ib.; The Attorney-General v. Fullarton, 2 Ves. & Bea. 263; Spear v. Crawter, 2 Meriv. 410,] SHIRLEY |