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claim was thereby barred. There is great danger in allowing persons, who have no interest in the subject in dispute, to be plaintiffs in a multiple poinding, raised for the purpose of bringing forward claims like this. If Mrs. Lashley had failed in obtaining the legitim, I cannot but apprehend that we should have had a probability of seeing more of the circumstances of the case than are now before us, if Alexander had then started up and said, “ I did not discharge, though Mrs. Lashley has; pay me the legitim." Though it has, therefore, hung on my mind that a multiple poinding is a dangerous proceeding in cases like this, yet the danger is much greater to get rid of authorities.
But the matter does not rest on the understanding of Thomas alone, but also on that of the assignees; they understood that, after they had received the discharge, Thomas, as executor to Roger, had no right to any future dividends, as he no longer stood as a creditor on Alexander's estate; and they therefore paid the dividends among the other creditors, passing him over.
It is matter of astonishment to me that there can be any doubt that, in making this bargain, they agreed to take the dividends in lieu of the legitim, rather than speculate on its uncertain amount; being at the same time in doubt, whether, independent of the discharge, Alexander would have been able to sustain his claim to the legitim: and there was nothing to prevent their making such a bargain. If this had been a question in the Court of Chancery, being an election, and dealt with for three years together, they would be bound by it. But they say they were at liberty to do this: if the dividends amounted to the legitim, well and good; if not, they contend that they were entitled to demand more. By all our books, however, they are not so entitled, and in many cases it has been decided by my predecessors, that this amounts to an election.
But it is not clear that this was an imprudent act on their part, if the Court had held that the law of the situs was to rule the distribution, and, of course, that all the property in the bank was not liable to claims of legitim; the claim would have been very small indeed. It was even a doubt whether Alexander had not discharged in his father's lifetime. Besides, it is not material, in a case of election, to enquire whether they made an improvident bargain or not; it is sufficient that they made it with deliberation.
I have always been clear upon this point; but, having been
counsel in this cause, nothing but necessity should have obliged me to decide it; but, even now, I act on and deliver the deliberate and well-weighed opinion of another noble and learned Lord (Thurlow).
On the Lord Chancellor's motion this judgment was pronounced:
It is ordered and adjudged, that the interlocutors complained of, in so far as they find, that Alexander Hog's claim of legitim was not cut off, during the life of his father, be affirmed; and that the said interlocutors be reversed, in so far as they find, that Alexander Hog's claim of legitim was not cut off by what passed, after his father's death ; and in so far as they sustain the said claim : and it is declared and found, that the assignees of the bankruptcy of the said Alexander Hog were competent to release such claim; and that it appears, by facts proved in this cause, that they have released it: and it is further ordered and adjudged, that as to the rest, the said interlocutors be affirmed ; and that the cause be remitted back to the Court of Session to proceed accordingly.
Rebecca LASHLEY and THOMAS LASHLEY,
Esquire, her Husband, Thomas Hog, Esquire,
Et è contra.
Notes of the Speech of the Lord Chancellor (Lord Eldon) at
moving the Judgment in the Cause (9th and 10th of July, 1804).*
Lord Chancellor. - This is an appeal by Rebecca Hog, otherwise Lashley, and Thomas Lashley, Esquire, her husband, against several interlocutors of the Court of Session of the 2d of July, 1793; the 5th of March and 25th of November, 1794; the 16th of June and 7th of July, 1795; the 23d of May, the 8th of June, the 26th of June, and the 11th of July, 1798; the 12th of November, 1799; and the 14th of May and the 26th of July, 1800; and also an application to your Lordships on the part of Mr. Hog, in the nature of a cross appeal against certain interlocutors in the course of the same proceeding. That cross appeal comprehends questions which I shall presently state, because, before it can be taken into consideration, your Lordships will have to decide whether it was presented consistently with the rules of your Lordships' House; and that question, though it will not much affect the principal matter in the cause, will certainly affect one part of it; that which relates to a claim with reference to the expenses of confirmation in Scotland, and probate of the testator's will in England.
* From the short-hand writer's notes.
This cause comprehends a great variety of questions, including many points deserving of very great attention, which have been very eloquently argued at your Lordships' bar. My purpose, if that shall meet with the pleasure of your Lordships, is to go through the statement of the case, and to exhaust the consideration of some of the points now, meaning to conclude the consideration of the whole in the course of to-morrow.
The case, with reference to the questions between these parties, has been long, upon some points or other, under discussion in your Lordships' House; so long, that I have had the honour frequently of appearing at your Lordships' bar as counsel for one of the parties in this cause. It has been, therefore, certainly with great reluctance that my attention, in a judicial character, has been called so imperiously to the consideration of the questions between these parties. But the circumstance of the absence of one noble and learned Lord (Thurlow), and the circumstance of the occasional absence of another noble and learned Lord (Rosslyn), whom I am happy to see this day present in this House, have compelled me to execute that duty as well as I can, which I never feel
any inclination, under such circumstances, to attempt to discharge, when it is not necessary that I should take the discharge of it upon myself. Thus I address myself to the decision of this cause, rather from matter of necessity, than matter of choice. In the opinion, however, which I have formed upon this subject, I have reason to think that I have the concurrence of those who have had occasion, in different periods, to attend to the subject matter of this cause, and who, whether present or absent, have in that degree attended to the consideration of this case which enables me to collect (what is of very great value unquestionably) the judicial opinion of those who may possibly be not here to express it ; and I shall have the satisfaction in expressing my own opinion in the presence of a noble and learned Lord, who has frequently had occasion to give his attention to this subject, and who, if I fall into any mistake, will be able to set your Lordships right.
It appears that, previous to the year 1737, a gentleman of the name of Roger Hog, who married in that year a lady of the name of Rachel Missing, and who were the father and mother of the Appellant, Mrs. Rebecca Lashley, and the Respondent, Mr. Thomas Hog, lived in that part of this island which is called England. Mr. Hog carried on his trade in the city of London : he was a native of Scotland, but he had unquestionably lost his Scotch domicil : he was to all intents and purposes a domiciled Englishman when he contracted, in 1737, in England, a marriage with this lady. Upon that marriage a settlement was made, and it is necessary to state particularly to your Lordships the substance of that settlement, because it has been considered as affecting the questions in this case, both in the Courts below and in the argument here at the bar; and because it appears to me, upon the best consideration I can give the subject, that, attending to the legal effect of it, it does not in any degree affect the legal consideration of this case.
Mr. Hog received with the lady a portion of 35001., and, receiving that portion, he entered into an engagement that he would, as soon as a purchase could reasonably be had, dispose of the sum of 2500l., part of the 35001., in the purchase of a real estate in England, with an obligation to convey that estate to his own use for his life, and after his death to trustees to preserve contingent remainders; with remainder to the use of his intended wife for her life, and, after the decease of himself and his wife, then to the children of the marriage, in such manner as she, notwithstanding her coverture, by deed or will, should direct and appoint; and, in default of such direction and appointment, to the use of the children of the marriage, to be equally divided between them share and share alike; and, in default of such issue, to the use of the lady in fee.
In looking through this settlement, a copy of which is printed in the cause, I think I am authorised to state to your Lordships that its effect is no more than this, - that this lady, being entitled to the sum of 35001.; 10001., part of the 35001., was advanced to the husband for his own use ; that with respect to the remaining 25001., it was to be laid out in land, which land was to be settled to the use of the husband for life; then to the use of the wife for life ; with remainder to the children of the wife, whose property, your Lordships observe, purchased the estate, in such manner as she should appoint; that, in default of any appointment by her, the children were to take equally; and, if there were no children, this real estate, so purchased with 2500l. of her personal property, was to go to her in fee; but the settlement does not contain
declaration whatever that this was to be in lieu of her dower; and, indeed, it would have been singular if it had, for this was the purchase of her own estate with her own money. What is more to the present purpose, it does not contain any thing by way of declaration, covenant, or otherwise, that this was to be accepted in satisfaction of any right of any kind which she could acquire by her marriage or otherwise, in the personal estate of her husband. It is a pure dry settlement of that real estate which was to be purchased with the sum of 25001.; and it appears to me, if I am right in collecting and stating the fact of this settlement, that in respect to any question as to what, under any circumstances, this lady would have in the personal estate of her husband, that question remains just as much open to discussion as if this settlement had never been made; this settlement has no relation whatever to that question.
It appears that, after this, Mr. Roger Hog purchased lands at Kingston upon the terms of this covenant, and those lands were conveyed to the trustees mentioned in this deed, to the uses of the deed; and it should seem that afterwards the lady made her appointment, by which she gave, subject to her husband's estate for life, as she had a power of doing, the right of the land to the present Respondent, Mr. Thomas Hog. It appears, afterwards, that when he became of age (at least, it is so suggested, and seems to have been so taken for granted throughout the whole of the proceedings in the cause), this estate was sold, and, the estate being sold, the father received the money, the price of the estate; and, the father receiving the
money, the price of the estate, of course he would be debtor to the son, whose estate it was, for the price of the estate, to be paid to the son at the time his right to the possession of the estate so sold should have commenced ; and