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![handle is hein.slavery/ssactsengr0784 and id is 1 raw text is: KIRWAN 17. KIRWAN
way of damages, and which would be awarded to him on the grounds that the
arrears could not be recovered, owing to the absence of Sir J. R. Palmer from
England. It did not appear that the evidence supported those facts.
As to the other point, the contract was for the purchase of redeemable annuities,
during the life of Sir J. R. Palmer, which were secured by demise; it did not
however appear anywhere that there was a contract that interest should be paid on
the arrears; both the annuities were secured by judgment. Many cases were cited,
in order to shew that the Court would give interest where there was a judgment. In
the old cases, interest, as it appeared, was considered as a matter of discretion; and
if the Court gave interest, a special case was necessary; as where the debtor came to
a Court of Equity to seek relief, the Court had given interest on the arrears; and in
Godfrey v. Watson, it is to be inferred that the Court would not give interest where the
creditor applied for relief. His Lordship said, that as to the judgment it would be
left for a jury to decide on the question of damages, and he was of opinion, that on
the judgment in this case, interest could not be [70] allowed on the arrears. Sir
John Leach had laid down the rule on this subject in the case of Newton v. Taylor,
which was printed by Messrs. M. & K., but not yet published. The cases relied on
by the Plaintiff Booth, were Newman v. Auling, Dale v. Cox, and Power v. Bennis; the
latter case did not shew on what ground the appeal was dismissed.
In Newman v. Auling, it was thought important that the security was given for
the maintenance; and in Dale v. Cox, the punctual payment of the annuity was said
to be the sole inducement for letting in the charge, and that the annuitant could not
have received any money from the land, as the rents were in the hands of a receiver
appointed by the Court, at the instance of the grantor of the annuity; there were
therefore special circumstances in those cases. His Lordship therefore said, that he
could not allow interest on the arrears of these annuities, without acting contrary to
the rules which the Courts had adopted for some years past.
The costs of the suit to be paid out of the fund.
Authorities cited.-Bradshaw v. Astley, 4 Brown, P. C. 505, 1717; Leggatt v. Sewell,
Gilb. Eq. Rep. 141, 1717; Litton v. Litton, 1 P. W. 543, 1719; Ferrers v. Ferrers, 6
Brown, 96, 1733; The Drapers' Company v. Davis, 2 Atk. 211, 1741; Godfrey v. Watson,
3 Atk. 517, 1747 ; Stapleton v. Conway, 1 Ves. 428, 1750; 1 Dick. 273, 1753; Morgan
v. Jones, 2 Dick. 644, 1784; Dale v. Cox, 1 Ridg. 153, 1784; Power v. Bennett, 2 Ridg.
256, 1790; Tew v. Lord Winterton, 3 Brown, 489; S. C. 1 Ves. jun. 451; Munro v.
Billingham, 2 Ves. jun. 168, 1793; Anderson v. Dwyer, 1 Scho. & Lef. 301, 1804;
Thirton v. Kirling, before the present Lord Chancellor when Master of the Rolls, 1835.
Cases cited as to the doctrine of the common law, in giving interest on arrears.-
Gordon v. Swan, 12 East, 419, 1810; Marshall v. Poole, 13 East, 98, 1810; Lowndes v.
Collins, 17 Ves. 27; Higgins v. Largent, 2 Bar. & Cres. 348; Arnott v. Redfern, 3 Bing.
353; Page v. Newman, 9 Bar. & Cres. 378, 1829; Foster v. Weston, 6 Bing. 709, 1830;
Saekett v. Bassett, 4 Mad. 58; Aylmer v. Aylmer, 1 Molloy, 87; Allen v. Keeves,
1 East, 435.
The before-mentioned cases were cited by Mr. Spence, in the order which we have
given them; they include nearly all the cases on the subject. Mr. Seaton has
collected the cases in his book on Decrees, p. 109, 125, which gives a clear explanation
of the law on this subject, as it formerly stood, and as it stands at present. This
book was occasionally referred to by the counsel in the course of the argument.
Counsel.-Mr. Pemberton, Mr. Wright, Mr. Tinney, Mr., Spence, Mr. Lovat, Mr.
Kindersley, Mr. Wright, Mr. Teed.
[71] KIRWAN v. KIRWAN. April 25, 1836.
Motion for a Receiver refused on the grounds of Delay. Bill against the Representa-
tives of a Deceased Partner, to which the Surviving Partners were not Parties,
good. Affidavit filed after Answer.
This was a motion to have a receiver of the estate and effects of a testator.
By the will of Clement Kirwan, made in 1827, and by the codicils thereto, he gave
several plantations in the West Indies, and real and personal estate in England, for
C. xxvII.-8*
DOIMELLY 70.](ViewImageLocal?handle=hein.slavery/ssactsengr0784&div=1&collection=&method=preview&ext=.png&size=3)