Thomas Oswald

THE LAW TIMES

July 15 and 17, 1846 Watson vs Parker Page 425

This was an appeal by the defendants, the executors and trustees of Thos. Shipman, deceased, from a decree of Vice-Chancellor Knight Bruce.   The bill was filed in January 1843 by Thomas James Watson, on behalf of himself and all others the creditors of Shipman, and stated that in 1811 a marriage between Thomas Oswald and Sarah Simson was solemnized; that Oswald had from his youth been treated by Shipman as his adopted son; that Sarah Simson was the daughter of a very old friend of Shipman's, and that previously to such marriage Shipman agreed with Thomas Oswald and Sarah Simson to make such provision for them as was contained in an indenture of the 20th of August, 1811.   That Indenture was made between Shipman of the one part, and Oswald and Sarah his wife of the other part, which, after reciting the marriage, and the agreement before the marriage to make a provision for Sarah and the issue of the marriage, and in consideration of such marriage and performance of the agreement, Shipman, for himself, his heirs, executors, and administrators, did promise and agree with Thomas Oswald and Sarah his wife, and the survivor of them his, and her executors and administrators, that he, Shipman, would, in his lifetime, or by his last will and testament, give and appoint unto Oswald and wife, and George Lee and Joseph Thorpe Shipman, or unto some other persons by the said Thomas Shipman in such will or settlement to be named, 3,000 shares Navy 5 per Cent Annuities, upon trust that Sarah, the wife of the said Thomas Oswald, should, after Shipman's death, receive the dividends during her life to her separate use, independently of her husband; and after her death, that Thos. Oswald should receive the dividends during his life, so long as he should continue solvent; but in case he should become bankrupt or insolvent, upon trust that the dividends might be applied for the benefit of the children or child of the marriage who might be then living; and after the decease of the said Thomas Oswald and Sarah his wife, upon trust to divide the said 3,000 shares stock amongst the children of the marriage; and if there should be no children of the marriage, in trust for the survivor of them, the said Thomas Oswald and Sarah his wife, or unto such person as the survivor of them should by will appoint.   Sarah Oswald died in July 1813, having had one child, Jane, who died in her mother's lifetime, and thereby Thomas Oswald had become absolutely entitled to the said 3,000 shares stock so covenanted to be paid by Shipman.   Thomas Shipman, by his will, dated the 4th of May, 1839, gave and devised certain real estates to the defendants, and bequeathed to them all his residuary personal estate equally, as tenants in common, and appointed the defendants his executors and trustees.   Shipman died on the 5th of March, 1842, and his will was proved in April, 1842.

The bill also stated that Shipman had died without having performed his covenant to settle or leave 3,000 shares Navy 5 percents, and that such stock having been converted into New 3½. percent, stock, Thomas Oswald became and was a specialty creditor of Shipman for 3,150 shares New 3½ percent Annuities.   By indenture dated the 17th of December, 1842, Oswald assigned to the plaintiff the said sum of 3,150 shares stock for his own benefit, but no consideration was given for such assignment.   It was then stated that the deed of the 20th of August, 1811, was, some time after its execution, lent to Shipman, and remained in his possession at his death, and the deed, or some copy or abstract, thereof, had come into the possession of the defendants.   The bill prayed an account of the estate, etc. of the testator, Shipman, and that the same might be applied in payment of what, on taking the accounts, should be found due to the plaintiff and the other creditors of the said Thomas Shipman, in a due course of administration, and if the personal estate should not be sufficient to answer such creditors, that the same might be raised out of the real estates.   The defendants, by their answer, insisted that Thomas Oswald did not become entitled to the 3,000 shares stock, and that the said indenture of the 20th of August, 1811, did not exist, or if the same had ever existed, was no other than a voluntary deed without consideration, and that the covenants, if any, contained therein were executory only, and being voluntary and without consideration, the same could not be specifically enforced; and that it would only entitle the parties claiming thereunder, if they could sustain any claim, to nominal damages; and that Oswald, or his assignee, if the deed ever existed, would only be entitled to nominal damages.   They insisted that Oswald had no sufficient claim on the testator's estate.   Thomas Oswald was examined as a witness to give evidence of the contents of the deed.   On the hearing of the cause, the Vice-Chancellor rejected the evidence of Oswald, and also the draft of the deed of 20th August, 1811, without prejudice to any question whether the same should, or should not, thereafter be admitted as evidence, and the rejection of the draft deed was not to prevent any party from tendering the same as evidence before the Master to whom the cause stood referred, or the said Master from receiving the same, if the same should, in the judgment of the said Master, be made evidence before him.   And it was referred to the Master to inquire whether the deed, called a deed of gift to Mrs. Oswald, mentioned in the bill of costs of the testator's solicitor, which had been proved in evidence, was executed by Shipman, and under what circumstances, and whether the same was the testator's deed, and whether it was then in existence, and whether the same had been lost or mislaid, and further directions and costs were reserved.

From that decree the defendants appealed, insisting that the bill ought to have been dismissed with costs, and that the plaintiff was not entitled to have the depositions and exhibits entered and read as evidence on his behalf.   Jas. Russell and Chas. Hall, for the plaintiff, supported the decree, and contended that the settlement was properly proved by Oswald's evidence, after he had assigned his interest.   The evidence had been rightly received de bene esse.   Wakefield and Steere, for the appeal, cited Ereyn v. Templar, 2 Bro. C.C. 148; Dearie v. Hall, Russ. 1, against the reception of the evidence.   The LORD CHANCELLOR.-In this case the witness was entitled to a chose in action, a right to recover it; and that right has been actually assigned to Watson, who claims the amount from the party owing the legal obligation.   It was objected that such an assignment was void within the statute of Elizabeth.   It is clear the party owing the obligation has notice, if not otherwise, at all events by this suit, and he objects to the competency of this witness.   Dearie v. Hall was cited, but that case has no application.   The party who was prior in point of time lost his priority by not giving the notice necessary to complete his title - he had done nothing.   Here the party must come into equity, and I am of opinion that there is no legal objection to the competency of this witness.   I take this opportunity of observing upon an irregularity in this decree, which I have also remarked in other cases.   It says this Court doth reject certain of the evidence which is mentioned.   That is no part of the decree; it is proper that the Court should notice the evidence which has been offered and rejected, but that is only preliminary; it is no part of the decree.   In many cases which have come before me in the House of Lords, it has appeared that evidence had been received de bene esse, and then it is stated that the evidence had been read, no further notice being taken of the evidence, and after that the Court proceeds to adjudicate.   That is very improper.   If evidence is received de bene esse, the Court must determine before pronouncing a decree whether it is to be admitted to be read or not.   It ought not to stand in the decree as read, and then nothing further stated as to what was done with it.   The proper course, where evidence has been received de bene esse and afterwards rejected, is that the Court should decide first on the reception of the evidence, and then It may be mentioned as having been tendered and rejected.   This is not always done.   I will receive this evidence de bene esse.   Hall then proceeded to read the evidence of Oswald to prove the contents of the deed.   The LORD CHANCELLOR.-I cannot receive secondary evidence of the contents until you have shown by the best evidence that the deed ever existed.   Hall. - The attesting witness is stated by his father and sister to have gone abroad many years ago, and they do not know whether he is living or dead.

The LORD CHANCELLOR.-I cannot receive this as evidence of his death unless you show me that no better evidence can be obtained.   Russell. - The letter by Shipman is evidence that he had executed the settlement.   That is expressly charged in the bill.   That letter is proved.   The LORD CHANCELLOR.- What is the date?   Russell. - Wednesday morning, there is no other date, but the expression, "in consequence of the alteration in my family," must allude to the death of his wife, which fixes the date.   The LORD CHANCELLOR. - He speaks of a will, but it is so very vague, it may or may not refer to this settlement.   I look at this letter to see how far it will enable me to dispense with primary evidence, if it had clearly identified the deed, that might have been sufficient; but you have shown that there were attesting witnesses, and you must shew what has become of them.   Russell. - He is only shown to be a witness by the evidence of Oswald, and that they say is not admissible.   The LORD CHANCELLOR.-I can do no more than put this in course of inquiry.   Wakefield. - The plaintiff chose to bring the suit to a hearing with this defect, and must abide by the consequences.   { Marten v. Whichelo, Cr. & Ph. 257.)   The LORD CHANCELLOR - The parties come here for administration.   The peculiarity of the case is that the party entitled to sue at law has assigned his interest to another person for the purpose of enabling him to come here.   The party who claims under the assignment may come to this Court.   The question is, whether the party can claim a benefit obtained by a scheme for changing the jurisdiction.   Creditors come here on account of the mode in which debts are paid.   The first question is, whether there is a legal debt, and then there is an ulterior relief to be administered in the event of the debt being established.   But the debt must be established at law to entitle the party to administration.   The plaintiff alleges that the deed exists in the custody of the defendants; but when I look at the evidence which has been offered about the deed, I find no evidence given that the witness who attested the execution of the deed cannot be produced.   That is the only question; it therefore only remains to consider whether to dismiss the bill or retain it for a year with liberty to bring an action.   The plaintiff's case rests on a legal demand.   In the view I take of it, before he can tender this witness, he must, as a preliminary step, prove the existence of the deed by the best evidence.   The cause has never gone far enough to make it proper to tender such witness.   Retain the bill for a year, with liberty for the plaintiff to bring such action as he may be advised.