1792. PEARSON against HENRY. out any regard to assets; and my brother Buller went expressly on that ground. BULLER, J. I only recollect two cases, in which the question, what shall be considered to be an admission of assets, has been discussed; Barry v. Rush, and Cleverly v. Brett (a). In the last of those the executor had paid interest on a bond due from the testator, which was held on the trial at Exeter to be an admission of assets: but that opinion was over-ruled in this court on a motion for a new trial, when it was thought highly unreasonable that, because the executor, thinking the demand just, had chosen to pay a part of a debt out of his own pocket, he should be liable for the whole debt; or that because having enough to pay the interest, he should be thereby concluded to dispute assets for the principal. In the other case, it seems to me that the plea had nothing to do with the case: that was an action of debt on a bond given by the defendant, by which he bound himself, his heirs, &c. for performance of the award; and therefore I said, in deciding that case, that it was a personal engage ment by the defendant to perform the award. Another ground has also been mentioned, that the administrator personally promised to pay whatever should be awarded: but that would not avail the plaintiffs in this action; for this action is brought against the defendant as administrator, and it is brought against him to recover the plaintiff's demand out of the intestate's effects; and if there were no assets, the personal promise by the administrator would be nudum pactum. This point was so considered by Aston, J. in the case I mentioned. GROSE, J. It would be very unreasonable to imply an admission of assets from the mere circumstance of the administrator's submitting to arbitration, so as to affect his own per sonal estate. If indeed it had been thus solemnly decided, in a series of cases, it would have deserved further consideration: but that does not appear to be the case; for Barry v. Rush was determined on the ground mentioned by my brother Buller. Rule discharged. (a) Cleverly v. Brett and Another, executors. M. 13 Geo. 3. B. R. In that case Lord Mansfield, Ch. J. said, "To be sure the evidence eases the creditor from proving assets, and throws the onus on the other side." A SMITH against SHEPHERD. Rule having been obtained calling on the plaintiff to shew cause why the proceedings in this action, which was brought on a judgment, should not be stayed pending a of error to reverse that judgment, writ Palmer, in shewing cause, made a preliminary objection, that the defendant, not having put in bail in the second action, could not make any application to the court in this cause. Wigley, in support of the rule, observed that, as the object of the defendant's motion was to stay further proceedings, it would be absurd to require him to take any step in the cause. But The Court (after conferring with the Master) raid that according to the established practice, the defendant was not in a situation to make any application until he had put in bail; and they Discharged the Rule. IN a SAUNDERS against HARDINGE, Clerk. October 1782 the defendant, in consideration of 1447. granted an annuity of 247. during his life to one Baker, and by way of securing it gave a bond for 5007.; and a warrant of attorney to confess judgment; and assigned his glebe lands, tithes, &c. of the vicarage of Hale Magna for 99 years. In June 1783 Baker assigned the annuity to Collis; who in April 1786 assigned to Saunders the plaintiff. On this last assignment there was memorial of a deed poll, dated 7th April 1786, executed by the defendant;" (reciting that, by indenture dated 26th June 1783, T. Baker for the considerations therein mentioned,assignedtheglebe lands, tithes, &c. within mentioned to J. Collis, for the remain der of the within mentioned term; that by an indenture of assignment bearing even date (with the deed poll) between J. Collis and the defendant, the same glebe lands, &c. were, for the considerations thereinmentioned, assigned to the plaintiff for the residue of the term; that the plaintiff had contracted with the defendant for the purchase of a farther annuity of 77. during Wednesday, 17 Geo. 3. c. A memorial ing that A. ly granted of 241. to B., signed to C.; who had as and that 4. had agreed further annuity of 71. to C. for 421.) certain were assignC.-and alby 4. to C. to grant a tithes, &c. ed by 4. to so a bond in 400l. for nuity of 311." without reference to the deed poll; held that the consideration for the annuity secured by the bond should have been stated, and that for want of it the bond was void, the annuity men tioned in it not appearing to be the same annuity as that secured by the deed poll.-Every deed, &c. by which an annuity is secured, and which is not properly registered, is void, not merely voidable; and a creditor of the grantor may take advantage of it." [6 T. R. 403. 471.] the 1792. the defendant's life, (over and above the within mentioned an nuity of 241. for 421. paid by the plaintiff to the defendant;) against by which, in consideration of 421. paid by the plaintiff to the HARDINGE. defendant, the latter assigned to the former the said glebe lands SAUNDERS &c. for the residue of the within mentioned term :-Also of a bond dated 8th April 1786, whereby the defendant became bound to the plaintiff in 400/. conditioned for the payment of one clear annuity of 311. by the defendant to the plaintiff during the life of the former :-Also of a warrant of attorney of the same date, to confess judgment on the said bond, &c." In 1786, judgment was entered upon this last bond; upon which a fieri facias issued, and upon a return that he had no lay fee, &c. but was a beneficed clerk, being rector of Gestingthorpe in Essex, a fieri facias de bonis ecclesiasticis issued in June 1791. Afterwards in Michaelmas term 1791 Ward recovered a judgment against the defendant in the court of Common Pleas on a bond for 4,3917.; and another writ issued at his suit of fieri facias de bonis ecclesiasticis, "without prejudice nevertheless to the former sequestration." Ward, supposing there was a defect in the memorial of the annuity by the defendant to the plaintiff, obtained a rule (last term) in this cause, calling on the plaintiff to shew cause why the judgment, and the writ of fieri facias de bonis eeclesiasticis had thereon, should not be set aside, with a view of giving effect to his own subsequent judgment and execution. The objection to the memorial was, that the consideration for the annuity of 317. secured by the bond was not stated. The affidavits in answer to this application contained the two former memorials. The first in October 1782 was "of a bond dated 25th October 1782, from the defendant to Baker in 3001, conditioned for the payment of an annuity of 247. from the former to the latter, during Hardinge's life ;—of a warrant of attorney to confess judgment on that bond ;-of an indenture, dated October 24th 1782, by which the defendant, in consideration of 144. paid to him by Baker, granted and demised to Baker the glebe lands, tithes, &c. of the vicarage of Hale Magna, in Lincolnshire, for 99 years, if the defendant should so long live and continue vicar, &c. ;—and of an indenture of re-demise, dated 25th of October 1782, by which Baker granted and demised to the defendant the said glebe lands, &c. for 98 years if &c. subject to the conditions, agreements, and purposes, therein mentioned." The other memorial was " of an indenture of assignment dated 26th June 1783, by which Baker in considera 1792. SAUNDERS against "ation of 1407. assigned the glebe lands, &c. to Collis, for "the residue of the term; and by which he also assigned to "Collis a bond, dated 25th October 1782, by which Hardinge, in consideration of 1447. became bound to Baker in HARDINGE, "3001. conditioned for paying an annuity of 241. during Hardinge's life in manner therein mentioned; and also "assigned the said annuity and a judgment on the said "bond," &c. Shepherd and Vaughan now shewed cause against the rule. 1st, The consideration of the annuity from the defendant to the plaintiff manifestly appears on the last memorial. It is an annuity of 317, compounded of two sums, 247. and 71. per annum. The consideration for the latter is stated in terms in the deed-poll to have been 427. ; and that for the former, which is merely an assignment of another annuity originally granted by the defendant to Baker, (and of which there is a regular memorial,) may be seen by the deed, registered in the first memorial, to which this last refers. If so, the consideration for the bond, which was given to secure the same annuity, as is evident from comparing the different instruments and sums together, need not be stated a second time in the memorial. Hodges v. Money, ante, 4 vol. 500. But if this memorial (taken by itself) be not sufficiently descriptive, yet when read with the two former ones, to which it refers, and which may be taken into consideration with it, as relating to the same transaction in its different stages, the whole consideration is disclosed. Secondly; even if there be any defect in the memorial, this party cannot take advantage of it. Though the words of the act (a) are "null and void," they mean voidable only; as has been held in the construction of similar words in stat. 1 Eliz. c. 19. s. 5. and 13 Eliz. c. 20. respecting church leases. This then should have been avoided (if at all) at the instance of the defendant himself, the words of the statute (b) being," it shall be lawful for the "party, by whom the annuity is made payable, to apply to the "court, &c." This was introduced for the benefit of the party himself; and quilibet potest renunciare juri pro se introducto. Bower and Leycester, contrà. No consideration whatever is stated in the last memorial for the annuity of 311. secured by the bond. The bond does not refer to the deed-poll (as was the case in Hodges v. Money) by which the two several annuities of 24. and 71. were secured; and there is nothing (b) Sect. 4. (a) 17 Geo. 3. c. 26. s. 1. from 1792. from whence it can be inferred that it is the same transaction, but the circumstance that both those annuities, when consoSAUNDERS lidated, amount to the same sum as the last annuity. But, on against HARDINGE. the contrary, any such inference is negatived by adverting to the different deeds; the annuity secured by the bond being "one clear annuity of 31." and the bond not being of the same date with the deed-poll, by which the two other annuities are secured. This memorial must be taken by itself: but if the two others be referred to, nothing will there appear to connect the annuity of 317. with the two former ones. And if it could be intended that the annuity of 31. were merely a consolidation of the two others, then it is open to another objection, that it is secured by two different bonds, upon both of which judgment has been entered up, and execution issued on the last, and on the former one also for any thing that appears to the contrary. On the other point; if the memorial be defective, the act renders "the instrument "null and void to all intents and purposes (a)." But even if it be only voidable, a creditor of the defendant, who stands in his situation, may elect for him to avoid it. Lord KENYON, Ch. J.—I am extremely sorry to be obliged to set aside this judgment, because the transaction appears to be a fair one and if I were at liberty to conjecture upon the subject, I might think perhaps that the annuity of 317. was intended to be substituted for the two several ones of 241. and 77. But we are to form a judgment on the public document, directed by the Legislature; and as the annuity secured by the bond may, from the manner in which it is there registered, be different from the two several annuities mentioned in the deed poll, this last judgment on the bond cannot be supported: but this will leave the other securities still in force. Had there been any words of reference in the memorial of the bond, as "the 31., which is the same annuity secured by the deed-poll," &c. the bond might have been supported: but there is nothing in the memorial to connect the one with the other. There is no foundation for the last argument; for by the words of the statute the bond is a nullity. In several cases that have arisen upon this act of parliament, which in general is a very beneficial one, we have found ourselves fettered with the positive terms of the law: but it is better in this, as well as in those instances, that a particular inconvenience should be felt, (a) Vide Crossley v. Arkwright, ante, 2 vol. 608. than |