1849, IN HUMBLE v. HUMBLE. March 20. paying his pur- N this case, a question was raised, whether, in paying A purchaser his purchase money and interest into Court, the purchaser was entitled to deduct the amount of the income tax on the interest under the 102nd section (a), which is to the following effect: "And be it enacted, that upon all annuities, yearly interest of money, or other annual payments, &c. either as a charge on any property" &c. "or as a personal debt or obligation by virtue of any contract, or whether the same shall be received and payable half-yearly, or at any shorter or more distant periods, there shall be charged for every 20s. of the annual amount thereof the sum of 7d." &c. &c., "and the person so liable to make such annual payment," &c. "shall be authorised to deduct out of such annual payment at the rate of 7d. for every 20s. of the amount thereof, and the person to whom such payment liable to deduction is to be made shall allow such deduction." Mr. Spence, Mr. Teed, and Mr. Riddell, appeared for different parties. Holroyd v. Wyatt (b) was cited. The MASTER of the ROLLS decided against the deduction. (a) 5 & 6 Vict. c. 35. (b) 1 De G. & S. 125.; and see Dawson v. Dawson, 11 Jur. 984.; Dinning v. Henderson, 19 duct the income tax payable on the interest. 1849. March 21. Though a Plaintiff cannot compel a Defendant to make a dis covery of his returns for income tax, still a state ment (as evi dence of a misrepresent ation of the value of his business) that he made such returns, is not THE MITCHELL v. KOECKER. 'HE supplemental bill in this case sought a discovery of the returns made by the Defendant to the Commissioners of property tax. The Plaintiff's object being to shew that the Defendant had represented the profits of his business to be less than what he had stated to the Plaintiff on purchasing it. On a former occasion, a demurrer to the discovery sought by this bill was allowed (a); but the Court gave liberty to amend the bill. The Plaintiff amended his bill by striking out the impertinent. interrogatories, but retaining the statements as to the Defendant's return of his income to the Commissioners. The Defendant took exceptions to these statements for impertinence, which the Master overruled, and the Defendant then took exceptions to the Master's report, which now came on for argument. Mr. Wright, for the Defendant, in support of the exceptions. It is contrary to the policy of the act (b), to allow a disclosure of the returns of a person's income. The Court would not receive evidence on the subject, and the statement is therefore impertinent, and ought not to remain on the record; for "non debet alligari quod probatum non relevat," Read v. Hambey (c). The Court said on the demurrer (a), that if evidence were produced of these facts at the hearing it would not be received. [The (a) 11 Beav. 380. (c) 1 Ch. Ca. 44. [The MASTER of the ROLLS. I decided that the Plaintiff was not entitled to the discovery of these matters from the Defendant, and not that he was not at liberty to prove the fact aliunde.] That would be impossible, since it could only be proved by unlawful means, through the wrongful disclosure of a clerk, collector or commissioner, contrary to his plain duty. [The MASTER of the ROLLS. The Plaintiff might produce some evidence, but whether it would be receivable is not now to be determined.] Mr. Turner and Mr. J. Anderson, contrà. The Defendant has confused two distinct things: the right to discovery, and the right of alleging material facts to be proved, if possible, at the hearing. It was decided, on the demurrer, that the Plaintiff had no right to the discovery from the Defendant, and nothing more. It is possible that some legitimate evidence may be produced of the facts alleged. In The King v. Clarke (a), the declarations of a Defendant to Commissioners as to his income were received in evidence to prove that he was disqualified to kill game. Mr. Wright, in reply. The MASTER of the ROLLS overruled the exceptions, and, upon the application of the Defendant, gave him further time to answer. (a) 8 Term Rep. 220. 1849. MITCHELL v. KOECKER 1849. March 30. A. B. bound himself to pay ST LOSCOMBE v. WINTRINGHAM. NIR CLIFTON WINTRINGHAM, on the marriage of Mr. and Mrs. Clifton Wheat, in 1787, executed a bond to trustees, to secure the payment, on the death of the survivor of himself and Lady Wintringham, of 16,000l. The sum was to be held on trust for Mr. and Mrs. Clifton Wheat, for their respective lives, and subject to certain trusts for their children (which never took effect), in trust to pay the same to revert to him- Sir Clifton Wintringham, his executors &c. self. A. B., by amount was to his will, gave the 16,000l., if it should revert, to trustees, on trust to pay charities, and "the remaining sum of 5001." to the Foundling Hospital. His wife survived him nine years, and the sum of 16,000l. was invested in 25,7021. 3 per cents. In 1848, the contingency happened, when the fund reverted, and Sir Clifton Wintringham, by his will, after disposing of his residuary estate, referred to the bond thus given by him; and he directed, in case "the sum of money in bond as aforesaid, or any part thereof, should revert into the residuum of his estate, at any time, pursuant to the several limitations expressed in the said marriage settlement," then he gave the same trustees the said sum of 16,000l., on trust to pay, or cause to be paid "thereout, the sum of 14,000l. of lawful money of Great Britain, unto Clifton Loscombe, and the heirs male of his body" &c. ; " and with respect to the sum of 10007, part of the said sum of 16,000l., he bequeathed 500%. to the Marine Society, and 500l. to the Society for the increase and encouragement of good servants. And with respect to the further sum of 5007., part of the said sum of 16,000l.," he gave the same to Magdalen Hospital; and he proceeded: "I give and bequeath the remaining sum of 500l., part of the aforesaid amounted to considerably more than 16,000l. Held, that the legatees were entitled to money legacies only, and not to the whole fund. aforesaid sum of 16,000l., to the governors &c. of the Foundling Hospital." Sir Clifton Wintringham died in 1794, and Lady Wintringham in 1805. In 1807, 25,7021. 3 per cents., the then value of 16,000l. sterling, was set apart by the Court, and carried to a separate account, to answer the debt due on bond. The income was paid to Mrs. Wheat, the surviving tenant for life; and she having died in November 1848, this sum of stock "reverted" to the estate of Sir Clifton Wintringham, and became subject to the disposition contained in his will. A petition was now presented by Clifton Loscombe, praying payment to him of fourteen-sixteenths of the 25,7027. 3 per cents., and of the remaining two-sixteenths to the several charities. The question was, whether the legatees were entitled to 16,000l. sterling, or to the whole fund, which in value was considerably more. Mr. Roupell, in support of the petition. The effect of the will is to give the whole produce of the bond and its fruit. The testator deals with the whole in portions, and expressly gives the last 500l. as "the remaining sum," contemplating, therefore, the disposal of the whole. The case is similar to dispositions of policies, which carry with them any bonus. Parkes v. Bott (a). Mr. Turner and Mr. Baggallay, for the charities. That this is a gift of the whole fund, and of the produce of it, is evident from the use of the words “remaining sum of 500l." The legatees take the whole amount of stock between them, in the relative propor tions (a) 9 Simons, 388.; and see Courtney v. Ferrers, 1 Simons, 137. 1849. LOSCOMBE v. WINTRING HAM. |