On this short ground, therefore, without considering other grounds, we think no such conveyance can be presumed as would enable the son to dispose of the fee by his will. Another question was made by Mr. Dillon, whether certain letters written by Sir William Parker, the father of the present Sir William Parker, ought not to have been admitted in evidence? On this point we think it sufficient to say, that it does not appear to us, that the present Sir William Parker claims under the late Sir William Parker; and, therefore, we think that the letters of the former cannot be evidence to affect the title of the latter. On all these grounds we are of opinion that the rule for the new trial must be 1820. HALFORD ข. DILLON. Discharged. DRAKE v. ROGERS and PULLAN. May 5. deed stated the THE memorial of an annuity after reciting the indenture The memorial by which it was granted, stated the consideration of of an annuity the annuity to be, "the sum of 85l. in notes of the go- consideration vernor and company of the Bank of England payable to consist of to bearer on demand, and also the sum of 651. by a draft bearing even date herewith drawn by John Moore Bank of England notes payable on demand, and of a draft, payable at a bankers, without specifying the time when. The annuity had been paid eleven years, and the attesting witness and agent of the grantee were both dead. The Court set aside the securities on the ground that the memorial did not state when the draft was payable, or whether it had been in fact paid. 1820. DRAKE V. ROGERS of No. 50, Great Marlborough Street, gentleman, on, and payable at Messrs. Birch, Chambers, and Hobbs, bankers, Bond Street, London, to Thomas Rogers, in his own person (by and with the privity and consent of Benjamin Pullan testified by his executing the said indenture) well and truly paid by the said John Drake, immediately before the execution of the said indenture, the receipt whereof the said Thomas Rogers did thereby acknowledge, and of and from the same and every part thereof did thereby acquit, release, and for ever discharge the said John Drake, his heirs, executors, administrators, and assigns and every of them." Rogers was an under-graduate of Cambridge. The annuity was granted by the Defendants in 1808 for their lives, and the life of the longer liver of them, and secured by a warrant of attorney to enter up judgment for 300l. John Moore, who had acted as Drake's agent, and Luke Nayler, the only attesting witness, died, the former in 1814, the latter in 1818. The annuity was paid up to the 31st May, 1819. Judgment had been entered up on the warrant of attorney on the 19th October, 1808, as of the then preceding Trinity term. Blosset Serjt. in the last term had obtained a rule nisi to set aside the judgment signed upon this warrant of attorney, and to stay execution, on the ground, that the memorial did not set forth when the draft for 651. therein mentioned was payable, or whether it ever had been really paid. He cited Rumball v. Murray (a), Berry v. Bentley (b), and Poole v. Cabanes (c). Onslow Serjt. now shewed cause against the rule. In Rumball v. Murray and Berry v. Bentley it appeared (a) 3 T. R. 298. (c) 8 T. R. 328. clearly clearly that the checks had not been paid before the execution of the indenture. Eyre C. J. in Morris v. Wall (a) laments that such a decision as took place in the above cases should ever have been come to; and in Ex parte Maxwell (b), Lord Kenyon refused to set aside an annuity where the witnesses were dead and the annuity had been paid seven years, intimating, that by analogy to cases under the statute of limitations, the objection should be made within six years. In the present case the witnesses are dead, and the parties have lain by for twelve years. In O'Callaghan v. Ingilby (c) the consideration was stated to have been paid "at or before" the execution of the deeds, and held good. Here it is said to have been paid "immediately before;" which is a much stronger expression than any which those cases contain. The Court cannot now be called on to infer that the sum of 657. mentioned in the memorial was a draft not turned into cash. A banker's check is commonly considered as money. Ex parte Michell (d). Blosset Serjt., in support of his rule. The annuity was here granted by an under-graduate, and a time has elapsed since the grant of it, sufficient to repay the consideration-money, principal, and interest, over and over again. But the legal objection is that which was stated on moving for this rule. The draft is described as payable (a word importing something future) at the house of Messrs. Birch and Co. It is not the money, but the draft, which is said to be paid immediately before the execution of the indenture. This distinguishes the present case from Rumball v. Murray, and Berry v. Bentley, for in those cases the consideration is stated to have been paid. The decision in Morris v. Wall is in 1820. DRAKE ข. ROGERS. 1820. DRAKE V. ROGERS. favour of the Defendants. If it were sufficient to state, that the grantee paid partly by money and partly by draft, (the time at which the draft is payable, not being mentioned,) a door would be opened to every species of imposition, as the draft might never be paid, or paid at such a distance of time that the discount might materially diminish the consideration agreed upon. The view, therefore, taken by the Courts of this subject is correct. The other cases cited do not apply. In Ex parte Maxwell the consideration was stated to have been paid on the day of the date of the annuity-deed. Ex parte Michell only shews that if the consideration be paid in money before execution of the deeds, the annuity will be valid. As to O'Callaghan v. Ingilby the sum was there stated to be paid in hand. DALLAS C. J. This is an objection which ought not to be encouraged. The grantor, at the distance of twelve years from the execution of the deed, at a period when all the witnesses who could have spoken to the transaction, are dead, raises his objection for the first time. It is no answer to say, that the principal has been paid as well as the interest, for that may be the case with all annuities; they are granted upon the chance of life, and if the grantor had died within a year, the grantee would have lost all. As little weight is there a transaction entered in the observation, that this was as as it ever can be. Now with regard to the principle, it is objected here that the memorial does not state when the draft for 651. was payable, or whether it was ever paid, so that it is uncertain whether the grantor of the annuity ever received the whole of the consideration for it. In principle there is a reason why it should appear upon the face of the memorial when the draft was payable, and that reason is given in Berry v. Bentley. "The objection was, that the memorial did not set forth when the note was payable, whether immediately or at a distant day; for if at a distant day, it was not worth 7007. by reason of the discount." Now the draft in this case might have been payable at a distant day, and the grantor might have lost so much of his consideration as the discount of the draft for the intermediate time might amount to. In substance, therefore, and on principle here is a ground why the time at which a bill is payable should appear on the memorial. This brings me to the cases which have been decided; but before I enter on them I will revert to the language of this memorial: it is, "that in pursuance of the said agreement, and in consideration of the sum of eightyfive pounds in notes of the governor and company of the Bank of England payable to bearer on demand, and also of the sum of sixty-five pounds by a draft bearing even date herewith, drawn by John Moore of No. 50, Great Marlborough Street, gentleman, on, and payable at Messrs. Birch, Chambers, and Hobbs, bankers, Bond Street, London," (without saying when) "to the said Thomas Rogers in his own person, (by and with the privity and consent of the said Benjamin Pullan, testified by his executing the said indenture,) well and truly paid by the said John Drake immediately before the execution of the said indenture, the receipt whereof the said Thomas Rogers did thereby acknowledge," Now C 4 what 1820. DRAKE Va ROGERS. |