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![handle is hein.slavery/ssactsengr0162 and id is 1 raw text is: VAN BRAAM V. ISAACS
[451] VAN BRAAM V. ISAACS. June 3d, 1799.
If a bond and warrant of attorney given to secure an annuity, are no otherwise
noticed in the memorial, than by way of recital in the annuity deed which is set out,
it is not a sufficient compliance with the 17 Geo. 3, c. 26. Nor can the Court
refuse to interfere on the ground of 18 years having elapsed since the grant, and
the grantee being dead (b).
This was an application calling on the Plaintiff's executor to shew cause why a
warrant of attorney given to secure an annuity should not be delivered up to be
cancelled, and the judgment entered thereon be set aside. It was moved on two
objections to the memorial, viz. 1st, That neither the warrant of attorney or the
annuity bond was sufficiently described : 2dly, That the names of the witnesses to
those two instruments were not mentioned.
The memorial set out an indenture bearing date the 20th of August 1781 between
the Plaintiff and Defendant, which indenture after reciting that the Defendant had
executed a bond bearing even date with the said indenture in the penal sum of 10001.
conditioned for the payment of an annuity of 1001. to the Plaintiff, and also that for
the better securing the said annuity the Defendant had executed a warrant of attorney
of the same date, proceeded to the grant of the annuity. The witnesses to the
indenture were regularly stated in the memorial, but no other notice was taken of tho
bond and warrant of attorney than what was introduced by the recital in the deed.
The grantee was dead.
Marshall Serjt. in the course of the last term shewed cause. The object of the
act, as appears by the preamble, was to prevent secrecy in annuity transactions ; and
it was with that view that all the deeds were ordered to be memorialized, and all the
witnesses to be mentioned. The answer therefore to the first objection is, that the
bond and warrant of attorney having been mentioned in the recital of the deed, the
public is equally informed of all the securities, as if a substantive allegation had been
made of the bond and warrant of attorney. Mentioning the consideration by way
of recital has been held sufficient. Sowerby v. Harris, 4 Term Rep. 494, and Hodges v.
Money and another, 4 Term Rep. 500 (a)'. With respect to the second objection, it is
only necessary that the names of all the witnesses should appear on the face of the
memorial. The reason is obvious; that every person interested may be able to get
at all the evidence relative to the transaction. But it appears from the bond and
warrant of attorney now in court, that the witnesses to the indenture were also witnesses
to [452] those instruments. Besides, admitting the objections to be valid, the Court
will not give them effect after the death of the grantee, and in a case where the annuity
has stood eighteen years unimpeached (a)'.
Le Blanc Serjt. in support of the rule. The Court has never refused to interfere
on account of the death of the grantee, except in cases where the application has been
made on the ground of something which passed at the time of granting the annuity,
and which the grantee only could contradict; as where part of the consideration-
money has been retained or paid back : and with rdspect to the length of time which
has elapsed since this annuity was granted, it is sufficient to say that the grantee has
enjoyed for eighteen years, an annuity for which he gave only five years purchase,
and which he never ought to have enjoyed at all. This clearly is only a memorial of
one deed instead of a memorial of every deed as required by the act. A mere
recital in the indenture of a bond and warrant of attorney cannot be a sufficient
compliance with the act : since mention of those instruments may have been introduced
with a view to take a sum of money under pretence of a charge for the deeds, and
they may never have been executed. This case may be distinguished from those in
which a recital of the consideration has been held sufficient; for if the whole con-
(b) Vide Coare v. Ciblett, 3 East, 461. Brown v. Rose, 6 Taunt. 126.
(a)' Vid. etiam Cousins v. Thompson, 6 Term Rep. 335.
(a)2 Vid. Symmonds v. Mortimer, 5 Term Rep. 140. Withy v. Woolley, 7 Term
Rep. 540, and Poole v. Cabines, 8 T. R. 328, in which last case the annuity having
been regularly paid during the life of the person who negotiated the annuity for the
grantee, the Court refused to set the annuity aside on a representation of facts which
that person only could have answered,
I BOS. & PUL. 451.
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