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You are here: BAILII >> Databases >> United Kingdom House of Lords Decisions >> Sir John Charles Hamilton, Bart. v. Joseph Houghton [1820] UKHL 2_Bligh_169 (00 January 1820) URL: http://www.bailii.org/uk/cases/UKHL/1820/2_Bligh_169.html Cite as: [1820] UKHL 2_Bligh_169 |
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Page: 169↓
(1820) 2 Bligh 169
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session, 1820.
1 Geo. IV.
IRELAND.
APPEAL FROM THE COURT OF EXCHEQUER.
No. 6
Where a trust is created by deed for the payment of debts; if a bill is filed by one of the creditors to enforce the payment of his debt; that purpose can only be effected by the general execution of the trust. The decree ought to direct such execution and an inquiry as to all the debts owing and payable under the trust, and that they should be paid according to their priorities.
A decree for payment of the debt of one creditor, under a deed of trust, which provides for the payment of other creditors is erroneous.—So if the bill, stating A. to have been the survivor of the trustees named in the deed, makes the heir of A. a party to the suit, as such supposed survivor, and that allegation proves to be false, the decree made upon such state of the pleadings is erroneous.
A bill to carry such a decree into execution, notwithstanding long acquiescence, cannot be sustained. The original decree may be examined, impeached and varied in a suit to carry that decree into execution. It is not conclusive until reversed by original bill, or bill of review, for error apparent on the face of the decree, and the court may refuse to carry it into execution.
A decree, to carry into execution an erroneous decree, being reversed; the cause was remitted, with leave to amend the bill, by adding parties and making a better case as to the original claim, notwithstanding the lapse of sixty years from the date of the deed by which the debt was secured, and of forty years from the date of the erroneous decree; as between the plaintiff creditor, and the debtor there is no presumption
Page: 170↓
from lapse of time in such a case, and upon such state of the pleadings that the debt has been paid. But other creditors, whose debts ought to have been provided for by the decree, might have a right to raise that question. A debt by simple contract does not carry interest, because provision for its discharge is made by a deed of trust; such a deed per se does not import contract or trust for the payment of interest, especially where the creditors have not signed the deed, and no agreement is made to charge the land and discharge the person.
Interest ought not to be computed from the date of the decree for payment, but from the day when payment is by the decree directed to be made.
An erroneous decree, directing payment of interest cannot give the right to interest; but interest may be due under circumstances.
A party who files a bill in a court of equity to have the benefit of a former decree, must shew (if the case requires it) that such former decree was right. If a decree appears to be erroneous, it cannot be carried into execution.
A decree taken pro confesso is the decree of the plaintiff who takes it, and it is his duty to see that it is right.
A decree taken pro confesso against one of the defendants in a suit, may be impeached for error by a party claiming under that defendant; and the party claiming under the plaintiff in the suit can have no benefit of that decree, if erroneous.
A bill taken pro confesso is conclusive against the defendant only as to the facts within his knowledge; not as to facts which the plaintiff has the same opportunity of knowing as the defendant, e. g. as to the survivorship of a trustee, which was alleged in the bill but proved to be contrary to the fact.
This was an appeal, on various grounds, from a decree of the Court of Exchequer (Equity side) in Ireland. The following are the facts of the case, shortly abstracted from the pleadings in the Court below.
Page: 171↓
Indentures of lease and release, dated 12th and 13th May 1758.
By indenture of release, bearing date the 13th of May 1758, and made between William Hamilton * and John Hamilton, his eldest son (afterwards Sir John Stewart Hamilton, baronet,) of the first part; the Bishop of Limerick, William Scott, Henry Hamilton, and Galbraith Lowry, of the second part; and Redmond Keane, of the third part; certain hereditaments and premises therein mentioned were conveyed to the parties of the second part, and their heirs, upon trust, that they or the survivor of them, his or their heirs, should, by sale, &c. discharge the debts and incumbrances mentioned in the schedule to the release annexed, together with all interest then due thereon respectively.
Robert Carson was one of the creditors named in the schedule, and opposite to his name is written the sum of 350 l. Upon the several debts contained in the schedule, which carried interest, being debts by mortgage, judgment, &c. the interest was computed, and the word “ interest” was written under them; but the word “ interest” was not written under the debt of Robert Carson, and no interest was computed on his debt.
William Hamilton died intestate before the 5th day of January 1778, when Sir John Stewart Hamilton † became entitled to the premises comprised in the release; and also obtained letters of administration of the personal estate of his father.
_________________ Footnote _________________
* It appears that William Hamilton was tenant for life of the estates conveyed in trust, and John Hamilton was owner of the inheritance in remainder. See p. 184.
† In the printed cases his title is stated as heir at law to William Hamilton; but probably it accrued under the limitations of a will or settlement.
Page: 172↓
Bill filed, 5 Jan. 1778.
On the 5th of January 1778, Robert Carson filed a bill in the Court of Exchequer in Ireland, against Sir John Stewart Hamilton, James Scott, as the heir at law of William Scott, (in the bill stated to be the survivor of the trustees named in the release), and others *. The bill stated, that Robert Carson had been employed for several years before the month of May 1758, by William Hamilton, as attorney and solicitor in several causes; that for the prosecution and defence thereof, after making all fair allowances, there remained due to Robert Carson 400 l. for money laid out and expended, and for his fees as an attorney or solicitor, and that William Hamilton being so indebted to him, and at the same time owing several other debts, did, with Sir John Stewart Hamilton, execute such indenture of release as before mentioned; and the bill prayed, that an account might be taken of what was due to Robert Carson, for principal, interest and costs, in respect to the said sum of 400 l. and also what was due to the other creditors of the said William Hamilton, who should come in and contribute to the expenses of the suit, and that the lands and premises mentioned in the deed of release, or a competent part thereof, might be sold for payment of such demands.
Death of Robert Carson, and revivor.
Robert Carson died, and his executors, filed a bill of revivor; but Sir John Stewart Hamilton having been served with process, and not appearing to the original bill and bill of revivor, process of contempt to sequestration was entered up against him, for want of appearance and answer.
_________________ Footnote _________________
*See the statement, p. 173; and the observations of the Lord Chancellor, p. 185. The statement in the text is from the printed cases.
Page: 173↓
Decree, 26 Feb. 1779.
On the 26th day of February 1779, the cause came on to be heard on sequestration as against Sir John Stewart Hamilton, and on bill and answer, as against the other defendants *, when it was decreed that the bill should be taken as confessed against Sir John Stewart Hamilton, and that the Remembrancer should state an account of what was due to the executors of Robert Carson, on the foot of the deed of the 13th of May 1758, for principal, interest and costs, and also on the sum of 50 l. in the pleadings mentioned.
Report, 15 Sept. 1779.
In pursuance of the decree, the Remembrancer made his report, bearing date the 15th day of September 1779, whereby he certified that there was due to the executors of Robert Carson, for principal and interest on the foot of the deed of the 13th May 1758, and of the said sum of 50 l., 835 l. 5 s.
This report was afterwards confirmed.
Decree on further directions, 23 Feb. 1780.
On the 23d day of February 1780, the cause came on to be heard for further directions, when it was ordered and decreed, that the Remembrancer should take an account of interest on the principal sum of 350
l. from the 3d day of December then last, to which time interest had been computed, to the 31st day of January then last, being the time when the report was confirmed, which (being computed) amounted in the whole to the sum of 855
l. 19
s. 6
d.; and it was further ordered and decreed, that Sir John Stewart Hamilton should, in three calendar
_________________ Footnote _________________ * This is so stated in the respondent's case, and in this respect, the observations of the Lord Chancellor, p. 185, seem to point to this passage; but in other respects, they are more applicable to the subsequent suit to carry the decree into execution.
Page: 174↓
Assignment of decree 1785, 1796.
In the year 1785, the executors of Robert Carson, assigned the claim under the decree to George Gordon Carson, who, by a deed executed in 1796, assigned to John Potter.
Bill to carry the decree into execution, 31 May 1800.
On the 31st of May 1800, John Potter filed a bill in the Court of Exchequer against Sir John Stewart Hamilton and others, stating the facts before mentioned, and also that Sir John Stewart Hamilton having been served with an attested copy of the decree in the former suit, and the principal money and interest not having been paid, the hereditaments and premises comprised in the deed of the 13th of May 1758, were, in the month of June 1780, put up to sale, and purchased by one Arthur Hawthorne, in trust for the plaintiffs in that suit, for the sum of 1,000 l. and that such sale was absolutely confirmed, but that the same was never completed by Arthur Hawthorne, because immediately after the sale, Sir John Stewart Hamilton requested the executors of Robert Carson not to suffer the purchase to be completed, promising that he would shortly pay to them the full amount of the sum so decreed, with interest, and all costs attending the same; whereupon the executors, and George Gordon Carson, assented to postpone the completion of
Page: 175↓
Death of plaintiff and Sir J. S. H.
Before any further proceedings were had in the cause, John Potter and Sir John Stewart Hamilton died, and the appellant, upon the death of Sir John Stewart Hamilton, (according to the allegations of the appellant's case,) as his only son and heir at law *, became entitled to the hereditaments and premises comprised in the deed of the 13 th May 1758.
Revivor 12 June 1802.
On the 12th of June 1802, the respondent, who is the executor of John Potter, filed a bill of revivor against the appellant as the heir at law † of Sir John Stewart Hamilton, and the cause was duly revived.
_________________ Footnote _________________
* Upon this statement the Lord Chancellor observed, that there was some inaccuracy in the statement of the printed cases, as to the manner in which the appellant became entitled; and that these inaccuracies occurred so often in the Irish appeal cases, that the House of Lords was always in a state of uncertainty as to matters which might form the grounds of their judgment.
† Probably as issue in tail, or remainder man, under a will or settlement. As the case does not turn upon the fact, it is not material to pursue this inquiry; and this observation may be applied to other points of this case.
Page: 176↓
On the 29th of May 1806, the appellant put in his answer to the original bill, and bill of revivor, insisting that Robert Carson was not entitled to interest on the sum of 350 l. or to the sum of 50 l. which he claimed upon an allegation (not admitted) of a parol promise made by William Hamilton, who died seventeen years before the decree was pronounced; that Henry Hamilton, one of the trustees named in the deed of the 13th May 1758, was alive at the time when the decree was pronounced, and lived several years afterwards, and that although he was the surviving trustee named in the deed, he was not made a party to the original suit; that the decree had not been prosecuted for more than twenty years after the same had been pronounced, and the appellant, by the answer, farther insisted upon the statute made in Ireland for the limitations of suits; and prayed the same benefit as if he had pleaded the statute.
Amended bill, 3 Feb. 1807.
On the 3d day of February 1807, the respondent filed an amended bill against the appellant, stating admissions and acknowledgments by letters and conduct on the part of Sir John Stewart Hamilton, of the fairness of the decree, and the validity of the demand against him, especially as to the interest, and containing allegations of various other facts not material to be stated.
Answer, 5 Dec. 1808.
On the 5th day of December 1808, the appellant filed his answer to the amended bill, representing that the admissions and acknowledgments set forth in the bill might be as therein alleged, but were owing to the negligence, and indolence of his father, Sir John Stewart Hamilton, and his consequent ignorance of the facts of the case.
Page: 177↓
Evidence.
The answer of the appellant having been replied to, witnesses were examined on the part of the respondent, who proved the exhibits, consisting of the deeds in the pleadings mentioned, some letters of Sir John Stewart Hamilton, and a draft, or order, dated the 2d day of June 1781, drawn by Sir John Stewart Hamilton on Francis Vesey, esq. in favour of one of the executors of Robert Carson for 300 l. &c. The witnesses on the part of the appellant proved that Sir John Stewart Hamilton was a man of indolent disposition, inattentive to his own concerns, and totally unacquainted with business; that Henry Hamilton, afterwards Sir Henry Hamilton, bart. was the survivor of the trustees named in the deed of the 13th day of May 1758, and that he was living at the time when Robert Carson filed the bill against Sir John Stewart Hamilton.
Decree, 14 Feb. 1812.
The cause came on to be heard in the Court of Exchequer, upon the 14th of February 1812, when it was decreed that the respondent was entitled, to the sum of 350 l. in the pleadings mentioned, without interest, and that the appellant should, within three calendar months, to be computed from the day of the date of the decree, pay to the respondent, as executor of John Potter, the sum of 350 l. with legal interest from that day until paid, together with his costs to be taxed by the proper officer, or that in default of payment, the Remembrancer should sell the lands and premises therein mentioned, or a competent part thereof, and that out of the money arising from such sale, the respondent should be paid his principal, interest and costs, and that if any over-plus should remain, the same should be paid to the appellant, or such person as should appear entitled
Page: 178↓
Decree on re-hearing, 26 June 1812.
By an order dated on the 21st of February 1812, and made upon the petition of the respondent, it was ordered that the cause should be re-heard, and the cause came on to be re-heard on the 26th day of June 1812, when it was declared that the respondent was entitled to the benefit of the decree pronounced in the cause of Carson v. Hamilton, on the 23d day of February 1780, and that the same should be carried into specific execution, save only so far as related to the sum of 50 l. therein mentioned; and that the Remembrancer should take an account of what was due to the respondent, as the executor of John Potter, on the foot of the decree of the 23d of February 1780, for principal, interest and costs, deducting therefrom the principal sum of 50 l.
Report, 6 June 1813.
In pursuance of the decree, upon re-hearing, the Remembrancer made his report, bearing date the 6th day of June 1813, whereby he certified, that there was due to the respondent, as executor of John Potter, on the foot of the decree of the 23d Feb. 1780, for principal, deducting the sum of 50 l.£. 805 19 6
|
For interest on 805 l. 19 s. 6 d. from the 23d February 1780, to 23d June 1813, being thirty-three years and four months |
1,611 |
19 |
4 |
|
For costs, of obtaining decree |
91 |
15 |
6 |
|
Ditto of defendants, Scott and Emery, parties thereto |
15 |
13 |
4 |
|
Total |
£ 2,525 |
7 |
8 |
Page: 179↓
Decree on further directions, 20 Nov. 1813.
This report was confirmed, and on the 20th of November 1813, the cause came on to be heard upon further directions, when it was ordered and decreed, that the register should compute interest upon the sum of 805 l. 19 s. 6 d. due to the respondent, as executor of John Potter, from the 23d day of June 1813, being the time to which interest was computed thereon by the report to the 20th day of November; which he having done in court, and the same amounting to the sum of 20 l. 3 s. and which being added to the sum of 2,525 l. 7 s. 8 d. reported due, amounted in the whole to the sum of 2,545 l. 10 s. 8 d. it was further ordered and decreed, that the appellant or such other of the defendants as ought so to do, should, within three calendar months, pay to the respondent, the sum of 2,545 l. 10 s. 8 d. with interest from the 20th day of November until paid, together with the costs of the respondent and the said other defendants, or in default thereof, that the appellant should be barred and for ever foreclosed of and from all right and equity of redemption in and to the lands and premises in the pleadings mentioned; and that the Chief Remembrancer of the court, or his deputy, should set up and sell to the public, and to the highest bidder, the said lands and premises, or a competent part thereof; and that out of the money arising by such sale, the respondent should be paid the sum of 2,545 l. 10 s. 8 d. so due to him, as executor of John Potter, with interest and costs, and that the remainder (if any) of the money to arise by such sale should be disposed of as the court
Page: 180↓
The appeal was brought to reverse or vary the decrees and decretal order of the 14th day of February 1812, 26th day of June 1812, and of the 20th day of November 1813.
For the Appellant, Mr. Wetherell and Mr. Treslove.
The decree of the 23d day of February 1780, was made in the absence of Henry Hamilton, afterwards Sir Henry Hamilton, baronet, who was the surviving trustee named in the deed of the 13th day of May 1758, and was then living, and was therefore a necessary party to that suit.
Even assuming the said decree of the 23d day of February 1780, to be valid, yet, twenty-three years having elapsed before steps taken in prosecution thereof, the respondent was barred from recovering the money certified to be due by the report made in the cause of Carson v. Hamilton; or the same ought, at the time when the said John Potter filed his bill of complaint against Sir John Stewart Hamilton, to have been presumed to have been satisfied.
The debt of 350 l. due from William Hamilton to Robert Carson, was a simple contract debt, and no interest is provided in respect of that debt by the deed. There was no evidence of any contract to pay
Page: 181↓
For the appellant: —
There is nothing in the provisions of the deed which shows an intention to give interest, on the contrary, the word “interest,” which is subjoined to the specialty debts, is not set opposite to this and other debts by simple contract. In the case of a will, providing for the payment of interest upon debts, it was held not to extend to debts by simple contract, Tait v. Lord Northwick, 4 Ves. 618. The same construction has prevailed as to arrears of annuities, Creuze v. Hunter, 2 Ves. jun. 157. 4 B. C. c. 316 *.
_________________ Footnote _________________
* See also Anderson v. Dwyer, 1. S. & L. 301.
Page: 182↓
Upon a judgment at law, interest is only given upon the new suit. Here the original decree was erroneous and defective for want of parties, and the assignee cannot have the benefit of such a decree. When a suit is instituted to cany a decree into execution, the court “sometimes consider the directions, and varies them in case of a mistake, and it has, on circumstances, refused to enforce the decree,” Mitf. 75 *. Upon this principle the decree was varied on re-hearing in the Court below.
The sum of 805 l. 19 s. 6 d. upon which the decree of the 26th of June 1812, directs interest to be calculated from the 23d day of February 1780, the date of the decree in the cause of “Carson against Hamilton,” was in part composed and made up of accumulations of interest upon the original debt of 350 l. If the respondent is entitled to interest upon the original debt, he is not entitled to interest upon the aggregate of interest and principal.
For the Respondents, Mr. Hart and Mr. Raithby.
The decree of 13th February 1780, is binding and conclusive on all parties, until reversed by original bill or bill of review for fraud, or error apparent on the face of the decree, and the appellant, claiming as heir at law, is equally bound by the decree as Sir John Stewart Hamilton, his father, and estopped from averring any matter
dehors the decree, because the decrees of the 14th February 1812, the 26th June 1812, and the 20th November 1813, are decrees
_________________ Footnote _________________ * See the note, and the
Attorney General v. Day,
1 Ves. 218;
West v. Skip, Id. 244;
Johnson v. Northey, Prec. in Chan. 134.
Page: 183↓
Supposing, but not admitting, that the appellant had a right to unravel the decree, as to the question of interest on the principal sum of 350 l. the decree is well warranted by the contract of the parties themselves, evidenced by the deed of the 13th of May 1758, whereby the lands and premises therein mentioned are conveyed to trustees, to pay thereout, by sale or mortgage, the sum of 350 l. with the other debts mentioned in the schedule annexed to that deed, with the interest due on the debts, and, in the mean time, to apply so much of the rents and profits of the premises as would satisfy the accruing interest. Even without any express direction as to the interest, whenever a trust deed is executed for payment of debts, and a schedule made of such debts, the simple contract debts are then in the nature of specialties, and a specific interest given in the fund out of which payment is to be made.
The case of a trust by deed is distinguished in the case of Barwell v. Parker, from a trust by will for the payment of debts by simple contract, which are not thereby converted into debts by specialty. In the latter case, it is the voluntary
Page: 184↓
For the respondents:—There is an admission, by inference, from the answer of the appellant, that Scott was the surviving trustee. And where a bill is taken pro confesso, the facts stated are conclusive against the defendant.
_________________ Footnote _________________ * This does not appear by the cases. The deed is not printed either in the body of the cases or in the appendix.
Page: 185↓
In the subsequent decree nothing is said of the mortgagees or other parties mentioned in the bill. The respondent states in his case, that the cause, as against all the other parties, was set down on bill and answer †. Should not the Court have made some deliverance as to those other defendants? The subsequent incumbrancers raise questions, which they had a right to have decided. How far can the decree be considered as valid against them? In the decree of 1813, as stated in the case, it is only directed, that the appellant, or such other of the defendants as ought so to do, should pay, &c. or otherwise, the premises should be sold. This is a defect in the decree. But the parties interested do not appeal.
_________________ Footnote _________________ * See p. 171. † See p. 173.
Page: 186↓
In reply:—Lord Hardwicke, in Creuze v. Hunter, does not decide what precise species of deed shall be sufficient to convert a debt by simple contract into specialty. As to Shirley v. Lord Ferrers, it is an authority in favour of the appellant.
The mere direction by deed to pay debts, does, not infer either contract or trust to pay interest upon debts by simple contract.
Where creditors do not execute a deed, there is nothing to prevent their suing the debtor. They do not contract for specialty, and no consideration is given to the debtor by charging the land and discharging the person.
Practice in Ireland, where where money is not paid according to an order of Court, to give interest from the date of the order.
Mr. Hart:—There is no appeal against the original decree.
When a plaintiff takes a decree pro confesso, it is his duty to see that it is right.
Page: 187↓
22 July 1822.
Page: 188↓
After these observations, which were intermixed with statements of the facts and pleadings, the Lord Chancellor proceeded thus:—The appeal complains, that the decree was taken in the absence of Henry Hamilton, afterwards Sir Henry Hamilton, bart. who was the surviving trustee named in the deed of the 13th day of May 1758, and was then living, and was therefore a necessary party to that suit. This is the objection made to the decree of the 23d of February 1780, which is sought by the subsequent proceedings to be carried into execution, and the benefit of which is sought thereby. If that decree was an erroneous decree, they were not entitled to have it carried into execution. It appears upon the evidence, that Henry Hamilton was the surviving trustee, living at the time when this decree was
Page: 189↓
This ought not to have been the decree made in the cause, even supposing Henry Hamilton, or the other trustees to have been dead, because, as this was a deed to pay all creditors, it should have been made in the ordinary course in which decrees in such cases are made, viz. providing for the payment of all creditors, and not merely a decree for the payment of this particular creditor: in that respect also it is wrong. In the next place, the appellant, by his case, insists upon length of time, as a bar to the right claimed under the decree; but as that point is now abandoned, it is unnecessary to discuss the question. He then further insists that the debt of 350 l. was a debt which ought not to have carried interest. That would be a reason for setting up the decree on the original hearing of the 14th of February 1812, which declared that the 350 l. was a debt of that kind, which ought not to have carried interest, except from the date of that decree. Then is stated the objection to the accumulation of interest upon interest.
The questions here, are really these: In the first place, it has been suggested at the bar, that there is a presumption, from lapse of time, that this 350 l. must have been paid, and that neither principal nor interest can be claimed after so long an interval. It does not appear to me, from these pleadings, that we can take that for granted; but if there were other creditors, whose demands ought to have been provided for by this decree, they might have had a right to insist upon that proposition. The
Page: 190↓
Page: 191↓
The decree of 1780 could only be sustained under the authority of a deed, by which the estates were vested in trustees in trust for the payment of certain debts. Subject to that charge they were limited to William Hamilton, (who was the debtor) for life, with remainders over. The charge was introduced upon the estate, by an agreement between the father and the son, that the son should suffer a recovery and charge these debts of his father upon the estate. The interests therefore which were taken under that deed were the interests of all the creditors who were specified in that deed. The
Page: 192↓
It is perfectly clear that no proper decree could be made for the purpose of raising any sum of money under that deed, without having before the Court all the persons who were interested in the property. The parties before the Court upon the original suit in which the decree of 1780 was made, were the claimant of this sum of money of 350 l. and a further debt, a person who was represented to be the heir of the surviving trustee, and the person who was then entitled as tenant in tail to the property, subject to the payment of those debts. If Henry Hamilton, who appears by the evidence in this suit to have been at that time living, and the surviving trustee, had been a party to the suit, the decree should have directed the trusts of the deed to be carried into execution; that an account should be taken of all the debts remaining unpaid; that the amount of those debts should be raised by sale or mortgage of the estate; and that the surplus, whatever it might be, should be settled to the uses contained in that deed. The decree, instead of being to that effect, is a decree providing for this particular debt, and directing a sale to take place in consequence of non-payment of the debt, and as I observed, having before the Court not the surviving trustee, but the heir of a person who was represented to be the heir of another trustee then dead, and which heir of that trustee had no estate vested in him, for the estate
Page: 193↓
It is clear that the decree was erroneous in every respect; it was erroneous, unquestionably, in decreeing the party to that deed entitled to that which it then gave him; it was erroneous in decreeing that he was entitled to any thing, without giving the same benefit to the other creditors entitled under the trust; it was erroneous in proceeding to a sale without having the surviving trustee before the Court; and therefore it is a decree which the Court can never carry into execution. The party who comes into a court of equity to have the benefit of a former decree, must show that it was a right decree, if the decree appears to be erroneous, the Court cannot carry it into execution.
In the present suit, Mr. Houghton claims as assignee under different assignments, and so far may be considered as the assignee of the debt of 350 l. charged by the trust deed. The decree obtained by him in the Court of Exchequer on the 26th of June 1812, by which he was declared entitled to the benefit of the decree of 1780, proceeding upon that ground, and giving him the aggregate sum which that decree provided, (except as to a sum of 50 l. which was so manifestly erroneous that the Court of Exchequer altered so much of the former decree); but declaring that the aggregate sum, with subsequent interest calculated upon it, should be paid to Houghton, is throughout erroneous. The Court of Exchequer had, on the 14th of February 1812, made a decree, by which only 350 l. with interest from the date of that decree,
Page: 194↓
The order which ought to be pronounced is, that the decree of the Court of Exchequer of the 26th June 1812, and that which followed upon it of the 20th November 1813, on further directions, should be reversed, they being manifestly throughout erroneous, and that the decree of the Court of Exchequer on the 14th of February 1812, should be also reversed; but observing that decree to be confined to the 350 l. to order that that decree should be also reversed, inasmuch as although the respondent may be entitled to the sum of 350 l. we cannot assert that he is entitled, because there are persons who ought to have been before the Court, who might have disputed whether he was so entitled or not. Although the respondent may be entitled to the sum of 350 l. under the provisions of the deeds of the 12th and 13th of May 1758; yet the former decree, the benefit of which was sought by the respondent, and the decree of the 14th of February 1812, do not provide for the due execution of the trusts of the deeds of the 12th and 13th of May 1758, and as there were not in any of the suits in which such decrees were made, the proper parties before the Court, the cause should be remitted to the Court of Exchequer in Ireland, with leave to the respondent to amend his pleadings, by introducing parties thereto, or otherwise, as he shall be advised. The amendment to this bill may be not only by making proper parties to it, but by framing his bill according to the rights of the parties, namely, to
Page: 195↓
Die Veneris, 21° Julii 1820.
It is ordered and adjudged, by the Lords, &c. That the decrees of the 26th of June 1812, and the 20th of November 1813, complained of in the said appeal, be and the same are hereby reversed. And it is hereby declared, that although the respondent may be entitled to the sum of 350 l. under the trusts of the deeds of the 12th and 13th of May 1758, yet inasmuch as the former decree, the benefit of which was sought by the respondent, and the said decree of the 14th of February 1812, did not provide for the due execution of the trusts of the said deeds of the 12th and 13th of May 1758, and there were not, in any of the suits in which such decrees respectively were made, proper parties before the Court for such purpose, It is therefore ordered and adjudged, that the said decree of the 14th of February 1812; also complained of in the said appeal, be and the same is hereby also reversed; and it is further ordered, that the cause be remitted back to the Court of Exchequer in Ireland, and that the respondent be at liberty to apply to the said Court for leave to amend his bill by making proper parties thereto, or otherwise as he shall be advised.