Page:The English Reports v1 1900.pdf/651

effects, should not be sufficient for that purpose, that a competent part of the said real estates of [380] the said Godfrey Clarke and his said son respectively, or one of them, might be sold, for making good such deficiency, and that all proper parties might join in such sale; and that the growing payments of the said annuity of £200 might be secured to be paid him during his life, by or through the means of the several funds aforesaid, in such manner as the Court should direct.

The respondents Gilbert Clarke and Samuel Pole his committee, put in their answers to the said bill, and referred to such proof as the appellant should make of his demand, and submitted the interest of the said lunatic to the care of the Court; and by the answer of the respondents Sir Thomas George Skipwith and Edward Gibbon, it appeared, that the said Godfrey Clarke was only tenant for life of his real estate.

Witnesses were examined on the part of the appellant and the respondents. But the appellant did not produce any evidence to support the allegations in his bill, that Godfrey Clarke, in the year 1753, promised to settle upon the appellant an annuity for his life, in case, in the course of the education of the said Godfrey Bagnall Clarke, he the appellant should forego all other means of preferment, and should constantly attend him till he should have finished the same; nor did the appellant produce any evidence that the said Godfrey Clarke and the said Godfrey Bagnall Clarke, or either of them, ever promised to secure to the appellant an annuity of £200 a-year, or any other annuity for his life. The utmost to which the evidence produced by the appellant (which consisted principally of exhibits) amounted, was only that Godfrey Clarke had an intention of securing to the appellant an annuity, but for what sum or for whose life did not appear. Two hundred pounds a-year was however paid to him by Godfrey Clarke from the year 1763, to Midsummer 1773, being the Midsummer next preceding the death of the said Godfrey Clarke, which happened in March 1774; and after his death, the said Godfrey Bagnall Clarke made the appellant two payments of £50 each, for the arrears of the annuity due at Christmas 1773, the quarter-day next before the death of the said Godfrey Clarke.

The annuity alluded to in the several letters exhibited by the appellant in this cause, was meant to be only for the life of the said Godfrey Clarke, was to be presumed from several circumstances; and particularly, that the said Godfrey Bagnall Clarke paid the appellant only the two quarterly payments that fell due at Michaelmas and Christmas in his father's life-time; but although he lived till the latter end of December following, he never paid the appellant any sum of money on account of the annuity, that fell due after the death of the said Godfrey Clarke. This presumption was further confirmed, by a circumstance which happened some short time before the death of the said Godfrey Bagnall Clarke; for he being about to settle his affairs, applied to the appellant for an account of what was due to him from the said Godfrey Clarke deceased, and from him the said Godfrey Bagnall Clarke, and the appellant accordingly delivered in an account, which he also produced in this cause, wherein he claimed a debt [381] of £1600 due to him from the said Godfrey Clarke, together with interest thereof from the 24th of June 1773; and a sum of £500 due to him from the said Godfrey Bagnall Clarke, together with interest thereon from the 21st of June 1766; and accordingly the said Godfrey Bagnall Clarke, in the said month of December 1774, gave to the appellant a bond for securing to him the full amount of the said two principal sums of £1600 and £500 together with interest to the day of the date of the said bond; but in the said account there was no claim for any arrears of the said annuity, nor was there any the least notice taken thereof by the appellant. The said Godfrey Bagnall Clarke was at his death indebted in a very large sum of money by mortgages, bonds, and simple contract.

The cause came on to be heard before the Lord Chancellor Thurlow, on the 3d, 5th, and 8th days of February 1779; on which 8th day of February his Lordship was pleased to dismiss the appellant's bill, without costs; declaring, that the annuity claimed by the appellant did not come under the description of any of the debts directed by the testator's will to be paid; nor was it a debt on mortgage, bond, or simple contract, or a debt or incumbrance existing and charged upon, or affecting his real estate.