Francis Knox , 3rd son. of Rappa castle. APPEAL FROM THE IRISH CHANCERY. Lorton (viscount) - - Appellant. Gore ----- Respondent; Et e contra, Gore Appellant. Lorton (viscount) - - Respondent. King, son-in-law and agent of A. Gore, is in the habit of making payments in respect of Gore's debts, sometimes with money.furnished for the purpose by Gore, sometimes out of his own funds. King pays 400/. in 1761, and 2,000/. in 1764, in respect of bond debts of Gore, who dies in 1781, leaving King his executor. No claim made by King against A. Gore in his life-time, nor against his estate afterwards till 1819, in respect of these sums. Presumed that the payments were made out of the money of A. Gore, and the claim of King barred by lapse of time. Marriage articles lost: Evidence that the house of the person in whose custody they ought to be, had been ransacked in 1798, by French troops and rebels, and many papers destroyed. Diligent search afterwards for the articles, which were not to be found: this is a fair presumption that they were destroyed, and secondary evidence of their existence and tenor admitted. Devise to A. for life, remainder to his first and other sons in tail, remainder to B. for life, remainder to certain of his sons for life, remainder to their first and other sons in tail in their order; proviso, that if B. or any of his sons should become entitled, the estate should be charged with a sum of 2,000 /. for C.; a grandson of B. is the first of B.'s family who becomes entitled in possession, and this held sufficient to support the charge for C. Will of A. Gore, 1780. ANNESLEY GORE of Ballina, in the county of Mayo, had three daughters, the eldest (Elinor) married to Mr. King, the second (Mary) to Mr. Knox, the third (Ann) to Mr. Carey. He had no son. By his will, dated 8th August 1780, he devised his real LORTON (viscount) V. GOHE. estates to trustees, in trust for Mrs. and Mr. King for ig27. life; remainder to such of their issue in tail male as Mr. King should appoint, and in default of such appointment, remainder to their first and other sons in tail male; remainder to Mary Knox for life; remainder to her husband Francis Knox, sen. for life; remainder to their second son Francis Knox, jun. for life; remainder to his first and other sons in tail male; remainder to James Knox, third son of said Francis Knox, senior for life; remainder to his first and other sons in tail male; remainder to Henry Knox, fourth son of Francis Knox, sen. for life ; remainder to his first and other sons in tail male ; remainder to Annesly, first son of said Francis Knox, sen. for life ; remainder to his first and other sons in tail male ; remainder to testator's daughter Mrs. Carey for life; remainder to her husband Henry Carey for life; remainder to their second son for life; remainder to his first and other sons in tail male; remainder to Annesly Carey, their first son for life; remainder to his first and other sons in tail male ; remainder to testator's right heirs." Then followed this passage :—" And my will and intention is, that in Proviso case and as soon as my said daughter Mary Knox, or the said Francis, her husband, or the sons or son of the said Francis and Mary, or either of them, shall by virtue of the limitations aforesaid become entitled to my said estate, the same shall then be and become charged and chargeable with the payment of the sum of 2,000/. sterling, to and for the use of the younger children of the said Henry Carey and Ann Carey his wife, in manner following; (that is to say), the sum of 500/. to Henry Carey, second son of the said Henry Carey, and the remaining 1,500/. to the five daughters of the said Henry and Anne, and the survivors and survivor of them, share and share alike." And the testator gave the trustees power to sell a competent ' * part of the estates to pay debts, and appointed Henry (viscount) King, Francis Knox, and Henry Carey, his three sonsCore. in-law, or the survivor of them, executors of bis will. The testator died in November 1781, and Henry King alone proved the will and acted as executor. Elinor King died in 1789 without issue. Henry King, her husband, died in 1824, having survived Francis Knox the elder, Mary Knox, Francis Knox the younger (who died without issue), and James Knox Gore (appellant Gore's father), third son of Francis Knox the elder and Mary his wife, so that neither Francis Knox the elder, nor Mary his wife, nor any of their sons, did become entitled in possession to the estates of Annesley Gore, and the appellant, Gore, the grandson of Francis and Mary Knox, was the first of the family who became entitled. Bill, 1814. On the 2d December 1814, the executors of Francis Knox the elder (then deceased), filed their bill in Chancery against Henry King, and the appellant Gore, then a minor, and others, for the purpose of having the trusts of the will of Annesley Gore carried into execution; and the cause having been brought to issue and heard, the Lord Chancellor on the 25th February 1817, Decree, 1817. decreed that the will of Annesley Gore was well proved, and that the trusts of it should be carried into execution, and that Henry King was entitled to stand in the place of the creditors of Annesley Gore whose debts he had discharged out of his own funds, and it was referred to the Master to take the usual accounts. Pending the taking of the accounts Henry King died, and Lord Lorton, his representative, was called as a party. Master's re- On the 1st May 1824 the Master made his report, SsKeptions. to which various exceptions were taken on both sides; but there were only three material points to which the 1827. judgment of the Lords referred. 1st. A claim made by Lord Lorton, as executor of Henry King, to two sums, one of 400 /. and another of 2,000 /. as having been advanced out of Henry King's own funds in payment of bond debts of Annesley Gore ; 2d. A claim by Lord Lorton to a sum of 3,000 /. or thereabouts, with interest in respect of the 5,000/. marriage portion of Eleanor King, of which only 2,000/. had been paid ; 3d. A claim by the Carey's for the 2,000/. to which they were under the will of Annesley Gore to be entitled in case of the estate's coming into the possession of Francis or Mary Knox, or any of their sons. [graphic] As to the first question, it was in evidence that Henry King had frequently acted as agent for Annesley Gore in the payment of his debts, and interest thereon, and extracts from the account* between them were produced, from which it appeared that Annesley Gore had advanced in his life-time several sums to Henry King for the above purpose, and the claim too, though it was stated to have accrued in 176I and 1764, was not preferred till 1819. There was no direct evidence, however, that money had been advanced by Annesley Gore to King specifically for the payment of these sums of 400/. and 2,000/.; but from the course of the transactions between Annesley Gore and Henry King, and the length of time that elapsed before the demand was made, it was contended that it was barred by the Statute of Limitations before the death of Annesley Gore, and the Lord Chancellor of Ireland by his final decree Decree, July (July 1824), disallowed the claim. As to the second claim, being that for the balance due in respect of the 5,000 /. marriage portion ; it was objected to it, first, that there was no sufficient evidence of the existence of the original marriage articles, nor of 1824. 1827. LORTON (viscount) V. GORE.' Evidence. Articles. their destruction if they did exist, so as to let in secondary evidence in proof of them. 2d. That the claim was barred by lapse of time, and that payment ought to be presumed. 3d. That Henry King had not performed his part of the contract so as to entitle him to the 5,000/. The evidence of the destruction of the original articles was this; Henry King being the executor of Annesley Gore, it was to be supposed that they were in his possession. In 1798 his house at Ballina, in the county of Mayo, was occupied for a considerable time by a party of French troops and rebels who ransacked the house, and scattered the papers about the floors, and many of them were lost. Afterwards the houses o^ residence of Henry King and his executor, Lord Lorton, were diligently searched for the articles, but they were not found, and it was presumed that they were among the papers which had been destroyed, and the secondary evidence of their existence and tenor was admitted, and that evidence was of this description. In 1782, soon after Annesley Gore's death, a case in the hand-writing of a Mr. Lyster, Mr. King's solicitor, was laid before Mr. Wolfe, afterwards Lord Kilwarden, for his opinion, whether the trustees of the will of Annesley Gore, might not sell a competent part of the estates, to pay the claim of Henry King in respect of this 5,000/., and in that case a copy of the articles, of date 1757, was set forth, and was as follows : " I do hereby oblige myself to pay unto Henry King, esquire, upon his marriage with my daughter Elinor Gore, and said Henry King settling all the estate and money he is now entitled to on the issue of said marriage, and a suitable jointure to the fortune, I give him the sum of 5,000/. sterling. Witness my hand, 30th June 1757. And if said Henry King recovers the Boyle estate left him by the late Lord Kingsborough, I in that case oblige myself to pay to the said Henry King at my death, provided he also settles said Boyle estate on the issue of this marriage, with an additional jointure on said estate of Boyle proportionably to the sum of 5,000 /. more. Witness my hand the 30th of June 1757. (signed) " Annesley Gore." " I do hereby oblige myself to settle all the estate and money which I am now entitled to on the issue of Elinor Gore and a jointure of 500/. a year; and if I recover the Boyle estate, I do oblige myself to settle the same on the issue of said marriage, with an additional jointure on said estate of Boyle of 500 /. a year more. (signed) " Henry King." The drawingof the case and thecopyingof the articles were charged against. Henry King in Lyster's accounts. At the time of the marriage of Henry King in 1757j he was engaged in a litigation with his brother, Sir Edward King, about certain estates; but in 1761 the matter was compromised, and the agreement was ratified by an Act of Parliament in which the articles were recited. In 1787. about two years before his wife Elinor's death, Henry King executed a deed by which he settled all his real property on the issue of the marriage, and charged the estates with a jointure of 500 /. per annum, in terms of the articles. In 1788 he instituted a suit in Chancery, which was not proceeded with, for the purpose of enforcing his claim, and the articles were recited in the bill. Upon this evidence the claim of Henry King to the balance due in respect of the 5,000/. was allowed by the Court below. The third claim, that of the Careys to the 2,000/. to which they were to be entitled on Francis or Mary VOL. 1.—New S. p 1827. LORTON (viscouht) 1827. Knox or any of their sons becoming entitled to the Lorton estates, was also allowed, on the ground that the words (viscount) " Son or sons" were not here to be construed strictly; as Ãore. it appeared to be the intention of the testator that the claim of the Careys should accrue in the event of any of the Knox family becoming entitled to the estates. From that part of the decree which disallowed the claim of Henry King to the two sums of 400/. and 2,000 /. Lord Lorton appealed. As to the 400/.:— First. Because it did not appear by any evidence in the cause that bills to that or any other amount were sent by the said Annesley Gore to Henry King; the only evidence relating to the said bills being an entry in the account book of said Francis Moran, which entry is dated the 15th November 1761, and is in the following words and figures—" Bills to Mr. Gore to send to Henry King, esquire 3961." which is certainly evidence of nothing more than that those bills were handed to Mr. Gore, but no evidence of what further use they were applied to by him. Secondly. Because, supposing that it had been proved that said bills had been sent by said Annesley Gore to said Henry King, it would, have been necessary to have shown that said 396/. were paid on account of the sum specified in said exception. As to the 2,000/. :— First. Because in general an executor is not bound to insist on the Statute of Limitations in bar of a fair demand, and is no more bound to insist upon it against his own demand than against any other; and as to the fairness and justness of the demand, independently of Evidence. Articles. their destruction if they did exist, so as to let in secondary evidence in proof of them. 2d. That the claim was barred by lapse of time, and that payment ought to be presumed. 3d. That Henry King had not performed his part of the contract so as to entitle him to the 5,000/. The evidence of the destruction of the original articles was this; Henry King being the executor of Annesley Gore, it was to be supposed that they were in his possession. In 1798 his house at Ballina, in the county of Mayo, was occupied for a considerable time by a party of French troops and rebels who ransacked the house, and scattered the papers about the floors, and many of them were lost. Afterwards the houses o^ residence of Henry King and his executor, Lord Lorton, were diligently searched for the articles, but they were not found, and it was presumed that they were among the papers which had been destroyed, and the secondary evidence of their existence and tenor was admitted, and that evidence was of this description. In 1782, soon after Annesley Gore's death, a case in the hand-writing of a Mr. Lyster, Mr. King's solicitor, was laid before Mr. Wolfe, afterwards Lord Kilwarden, for his opinion, whether the trustees of the will of Annesley Gore, might not sell a competent part of the estates, to pay the claim of Henry King in respect of this 5,000/., and in that case a copy of the articles, of date 1757, was set forth, and was as follows : " I do hereby oblige myself to pay unto Henry King, esquire, upon his marriage with my daughter Elinor Gore, and said Henry King settling all the estate and money he is now entitled to on the issue of said marriage, and a suitable jointure to the fortune, I give him the sum of 5,000/. sterling. Witness my hand, 30th June 1757. And if said Henry King recovers the Boyle estate left him by the late Lord Kingsborough, I in that case oblige myself to pay to the said Henry King at my death, provided he also settles said Boyle estate on the issue of this marriage, with an additional jointure on said estate of Boyle proportionably to the sum of 5,000 /. more. Witness my hand the 30th of June 1757. (signed) " Annesley Gore." " I do hereby oblige myself to settle all the estate and money which I am now entitled to on the issue of Elinor Gore and a jointure of 500/. a year; and if I recover the Boyle estate, I do oblige myself to settle the same on the issue of said marriage, with an additional jointure on said estate of Boyle of 500 /. a year more. (signed) " Henry King." The drawingof the case and thecopyingof the articles were charged against. Henry King in Lyster's accounts. At the time of the marriage of Henry King in 1757j he was engaged in a litigation with his brother, Sir Edward King, about certain estates; but in 1761 the matter was compromised, and the agreement was ratified by an Act of Parliament in which the articles were recited. In 1787. about two years before his wife Elinor's death, Henry King executed a deed by which he settled all his real property on the issue of the marriage, and charged the estates with a jointure of 500 /. per annum, in terms of the articles. In 1788 he instituted a suit in Chancery, which was not proceeded with, for the purpose of enforcing his claim, and the articles were recited in the bill. Upon this evidence the claim of Henry King to the balance due in respect of the 5,000/. was allowed by the Court below. The third claim, that of the Careys to the 2,000/. to which they were to be entitled on Francis or Mary VOL. 1.—New S. p 1827. LORTON (viscouht) 1827. Knox or any of their sons becoming entitled to the Lorton estates, was also allowed, on the ground that the words (viscount) " Son or sons" were not here to be construed strictly; as Ãore. it appeared to be the intention of the testator that the claim of the Careys should accrue in the event of any of the Knox family becoming entitled to the estates. From that part of the decree which disallowed the claim of Henry King to the two sums of 400/. and 2,000 /. Lord Lorton appealed. As to the 400/.:— First. Because it did not appear by any evidence in the cause that bills to that or any other amount were sent by the said Annesley Gore to Henry King; the only evidence relating to the said bills being an entry in the account book of said Francis Moran, which entry is dated the 15th November 1761, and is in the following words and figures—" Bills to Mr. Gore to send to Henry King, esquire 3961." which is certainly evidence of nothing more than that those bills were handed to Mr. Gore, but no evidence of what further use they were applied to by him. Secondly. Because, supposing that it had been proved that said bills had been sent by said Annesley Gore to said Henry King, it would, have been necessary to have shown that said 396/. were paid on account of the sum specified in said exception. As to the 2,000/. :— First. Because in general an executor is not bound to insist on the Statute of Limitations in bar of a fair demand, and is no more bound to insist upon it against his own demand than against any other; and as to the fairness and justness of the demand, independently of the aforesaid legal bar, no valid objection was or could be stated thereto. Secondly. Because that supposing the Statute of Limitations might have been set up as a bar to this demand of appellant, the said Francis Arthur Knox Gore did not rely on it or allege it as a bar before the Master, or in his exceptions to the said report, and therefore ought not to have had any benefit from the said statute at the hearing on the said exceptions. Thirdly. Because the said Francis Arthur Knox Gore had himself been allowed credit as aforesaid by the said Master, in the account on the foot of the marriage portion of 5,000/. for the said several sums of money paid to the said Henry King from time to time in the life-time of the said Annesley Gore, in said report specified, amounting altogether to the sum of 2,697/. the greater part of which had been paid by the said Annesley Gore to the said Henry King between the time of the payment of the said sum to the Bishop of Killala and the death of the said Annesley Gore, and not one of which said sums appears by said Master's report to have been paid on any particular account; and the said payments so made to the said Henry King, subsequent to the payment made by him of said sum of 2,000/. to the said Bishop of Killala, ought therefore to have been presumed to have been paid to the said Henry King on account of the said sum of 2,000/. he had so advanced to said Bishop of Killala, or the amount thereof, and might have been so applied. Fourthly. Because however said sums were to be applied, it appears by the said Master's report that not one of said sums was paid within six years previous to the said Annesley Gore's decease; and therefore his Lordship ought not to have allowed the Statute of [merged small][graphic] 1827. LORTON (viscount) V. GORE. Limitations in bar of appellant's right to credit far the 2,000/. so paid the Bishop of Killala, and the interest thereof, without expressly directing that the appellant should not be charged in any way with the said sums, amounting to said sum of 2,697^- the Statute of Limitations operating in bar of the whole of the sums comprised in said sum of 2,6971; upon any principle that it can be held to operate against appellant's having credit for the sum of 2,000/. so paid by the said Henry King to said Bishop of Killala, and because appellant ought either to have credit for the same so paid by the said Henry King to the Bishop of Killala, or he ought not to be charged with the said sum so paid by the said Annesley Gore to the said Henry King; for if on the principle of there being cross-demands, and a running account between the parties, the items on one side are taken out of the statute, so also must those on the other side. For Gore it was contended that this part of the decree ought to be affirmed. As to the 400/. :— 1st. Because it appears by the receipt of the 18th of December 1761, upon which the claim of 400/. and interest is founded, that the payment was made by Annesley Gore, and that Henry King was only the agent in making it, and must be taken under the circumstances, and particularly at this distance of time, to have procured from Annesley Gore funds to enable him to make such payment. 2d. Because, if such a debt ever existed, this payment must from the length of time that elapsed between the time of payment and the death of Annesley Gore, nearly twenty years, be presumed to be satisfied,, and more especially as Annesley Gore was a man of considerable property, and such presumption is strengthened by the fact of Henry King, who survived the said Annesley Gore a number of years, not having made any claim on the foot of such payment until the year 1819, as before mentioned. . 3d. Because it appears that the said sum of 400 /. was discharged by the application of bills sent by Annesley Gore to Henry King. 4th. Because the balance due upon the bond (after payment of 400/.) was paid by Annesley Gore, and the security taken up by him and cancelled by cutting off the seal, and under such circumstances, and in such state, the bond came into the hands of Henry King as executor of Annesley Gore, with all his other papers, and upon the death of Henry King came into the hands of appellant as executor of Henry King; and said King's possession of said bond is consistent with the fact of the discharge of the whole amount thereof by and with the money of Annesley Gore. 5th. Because if such a debt ever existed, it was barred by the Statute of Limitations in the life-time of Annesley Gore. [merged small][graphic] As to the 2,000/.:— 1st. Because the sum of 2,000/. in this exception mentioned does not appear to have been a payment made on account of, and for the proper debt of Annesley Gore, who was one only of two obligors in the bond, and might have been a payment for the debt of his co-obligor, or of Henry King himself, who held valuable renewal interests as tenant under the see of Killala. 2d. Because if the payment was made on account of Annesley Gore, it should, under all the circumstances, at this distance of time, and especially as no claim was made on the foot of such payment until the year 1819, [graphic] 1827. be presumed that Henry King (who acted as agent for Annesley Gore, in making other payments from the funds of the said Annesley Gore), had made such payment also with Annesley Gore's money, and not from the private funds of the said Henry King. 3d. Because the production of that bond by the representative of Henry King is not in itself evidence that the fact of the payment thereof was made with the money of the said Henry King, inasmuch as the said Henry King acquired possession of all the papers of the said Annesley Gore as his executor, and the said papers afterwards came into the possession of the appellant as executor of the said Henry King. Gore appealed from that part of the decree which allowed the claim of Henry King to the 5,000/. portion: 1st. Because there was not a sufficient foundation laid in evidence to entitle Lord Lorton to read secondary evidence of the alleged articles. 2d. Because it did not appear that the 5,000 /. was at any time an existing charge against Annesley Gore's estate. 3d. Because the alleged articles of 1757 rested on mutual and dependent covenants, and the said portion was not to be thereby payable until the said Henry King should settle on the issue of the marriage the estate and money he was then entitled to, and make a jointure for his wife pursuant to his covenant, which covenant does not appear ever to have been duly performed, and therefore it is submitted that no debt existed on the foot of said sum of 5,000 /. claimed by the respondent, even supposing the said alleged articles to have been executed. 4th. Because if the said sum of 5,000/. was a debt existing from the date of said articles, or at the marriage of the said Henry King with Miss Gore, it was barred by length of time, before the death of said Annesley Gore, which did not take place for more than twentyfour years after the said marriage, and the date of the said articles, and should be presumed to have been paid by the said Annesley Gore. 5th. Because, not being a debt due by the said Annesley Gore, at the the time of his death, it could not be a charge on his real estate under his will. 6th. Because, if the execution of the said alleged deed of 17^7 made the said sum of 5,000/. a debt of the said testator, it could only have been a debt due and payable from the execution of said deed of 1787, the said sum of 50001. not being sooner payable, if at all. 7th. Because, supposing the said sum of 5,000/. to be a charge on the said estates, it does not appear from the said copy of the said articles of 1757, that interest was to be payable on the sum of 5,000/. therein mentioned, and now claimed by the respondent, Lord Lorton ; and there is no evidence of a demand made of said principal sum, or any part thereof, from the said Annesley Gore. 8th. Because, if interest was payable, it is, under all the circumstances, to be presumed, that all interest on the said sum of 5,000/. was paid during the life-time of the said Annesley Gore, and by the said bill, filed by the said Henry King in 1788, he claims a balance of 3,000 /. only, to be due on the said alleged charge. 9th. Because, even were the settlement of 1787 to be considered as a performance by the said Henry King of his covenant in the said alleged articles of 17^7, it would not entitle him or the respondent, Lord Lorton, to interest from the marriage, by relation back. 10th. Because, supposing the said interest to have become in arrear at the death of the said Annesley Gore, it is to be presumed that the said Henry King, who received the rents and profits of the said estates of the said Annesley Gore, retained the said interest thereof; and at all events, the said decree or decretal order should not have decreed an account to be taken on the foot of the interest of the said 5,000 /., without decreeing an account of the rents and profits received by the said Henry King, who was bound to keep down the interests out of the rents, if the real estate was charged with the 5,000 /. Mr. Gore also appealed from that part of the decree which allowed the claim of the Careys :— Because the estate of Annesley Gore was only to be charged with the sum of 2,000/. for them, in the event of Mary Knox or Francis Knox her husband, or the son or sons of Mary and Francis, becoming entitled to the estate, which event has not as yet happened, and it does not appear that the testator intended to charge his estate at all events. 15th July, 1828: Judgment. Claim of the Careys to the £. 2,000. Lord Lyndhurst, (Ch.):—This is an appeal from a decree of the Lord Chancellor of Ireland, made on certain exceptions to the Master's report, which are many in number, but through all of which it is not at present necessary to travel, and I shall confine myself, therefore, to the material points. One of the exceptions raised the question whether certain sums allowed by the Master to persons of the name of Carey were due to them according to the right construction of the will of Annesley Gore, I think the Lord Chancellor of Ireland was correct in the opinion, that in the event which happened there can be no reasonable doubt but that the Careys were entitled to the sums allowed them; and I propose that this part of the judgment be affirmed. The next material question is on the articles of 1757, 1828. and these are short, and in these terms: Lorton " I do hereby bind myself to pay unto Henry (viscount) King, esquire, upon his marriage with my daughter Core. Eleanor Gore, and said Henry Kiner, settlinp. all the „ . , . .11 i • „ Marriage a rti estate and money he is now entitled to, on the issue ot cles: claim to said marriage, and a suitable jointure to the fortune, te •5,000. I give him the sum of 5,000/. sterling. Witness my hand, 30th June 1757: and if said Henry King recovers the Boyle estate, left him by the late Lord Kingsborough, I, in that case, oblige myself to pay said Henry King at my death, provided he also settles said Boyle estate on the issue of this marriage, with an additional jointure on said estate of Boyle, proportionately, the sum of 5,000/. more. Witness my hand, 30th June 1757(signed) " Annesjley Gore, L. S." " I do hereby oblige myself to settle all the estate and money I am now entitled to on the issue of Eleanor Gore, and a jointure of 500/. a year ; and if I recover the Boyle estate, I do oblige myself to settle the same on the issue of said marriage, with an additional jointure on said estate of Boyle of 500/. a year. (signed) " H. King, L. s." One question argued here was, whether there was sufficient evidence of the execution of these articles. The terms of the exceptions do not sufficiently raise this question, although I think they are sufficiently large to embrace it. The exception is in these terms:— " For that said Master by said report allows a credit to said Viscount Lorton for the sum of 2,803/. being an alleged balance of a sum of 5,000/., the alleged portion of Eleanor Gore, one of the daughters of Annesley Gore, on her marriage with the said Henry King, on foot of said alleged portion; whereas said [merged small][graphic] Master was not warranted by evidence or law to allow any sum on foot of said portion." But although this is sufficiently large to include the point, it does not appear to have been the intention of the parties to agitate the question, and it is stated in the respondent's case, and not denied, that the point was not insisted upon in the Court below ; and I have had some conversation with the noble and learned Lord (Lord Manners) who decided the case below; and he states that, according to the best of his recollection, the point was not insisted upon below. The main question there was, whether Henry King was entitled to interest from the date of the execution of the articles on that portion of the sum of 5,000 /. which he had not received, and, if the question as to the execution of the articles was not raised, or was abandoned before, the parties are not warranted to raise it here per saltum. Taking it then for granted that the articles did exist and were duly executed, as they are not produced, it must be proved, in order to let in the secondary evidence, that they have been lost or destroyed. The articles, as before mentioned, were executed in 1757- In the year 1798, during the rebellion in Ireland, the house of Henry King at Ballina, in the county of Mayo, was occupied by parties of rebels and French troops, who remained in possession of it for a considerable time; and the whole of the house was ransacked, and the papers scattered about the floors, and it may naturally be supposed that many of them were destroyed, and the original articles of 1757 might be among the number. Henry King was executor of Annesley Gore, and would properly have the articles in his possession ; and Lord Lorton was the executor of Henry King, and it is in evidence, that upon a decree being made for an account in this cause, the house of Henry King at Ballina, and the houses of Lord Lorton in Henrietta-street, Dublin, and at Rockingham in the county of Roscommon, were searched, and no trace of the original articles could be found. I agree with the Court below that, under these circumstances, secondary evidence of the existence and tenor of the articles was admissible, and that evidence was of this description. Annesley Gore died in 1781, and in 1782 the trustees under his will laid a case before Mr. Theobald Wolfe, afterwards Lord Kilwarden, for his opinion, whether a competent part of the testator's property might not be sold to pay off this debt. That case was wholly prepared by Mr. Lyster, who had acted as solicitor for Mr. Annesley Gore and Mr. King; and it included a copy of the original articles of 1757. In addition to this, it was proved that the making out the case, and the copying of the original articles were charged for in Lyster's bill of costs, which was proved to have been paid; and one can hardly suppose, therefore, that this was not a genuine copy of the instrument. Besides this, in the second year of the reign of Geo. 8, an Act of Parliament was passed for confirming an agreement between Mr. Henry King and Sir Edward King relative to some litigated questions of property between them, and in this Act the articles were recited; and in 1787 Henry King, pursuant to a power reserved to him by the Act, executed a deed by which he settled on his wife, Elinor King, the daughter of Annesley Gore, a jointure corresponding to the stipulation in the articles. Taking all this together, I think that the decree, in as far as it recognizes the existence and validity of the articles, ought to be affirmed ; more particularly as it is at least doubtful whether the 1828. LORTON (viscoumt) V. GORE. 1828. LOItTON (viscount) V. GORE. Interest. question was raised or insisted upon in the Court below. The next material question is that of interest upon the money due under the articles, and that arises out of the construction of the words of the articles, " I do hereby oblige myself, &c. &c." It should seem that after the execution of the articles by Annesley Gore, there had been some further treaty between the parties, as in the note at the bottom signed by King, the suitable jointure is fixed at 500/. per annum. The transaction then is this: Annesley Gore obliges himself to give a portion of 5,000/. with his daughter, and Henry King engages to settle upon her a jointure of 500 /. per annum, and to settle his property on the issue. Henry King had a controversy with Sir Edward King concerning certain estates which had belonged to Lord Kingsborough, and in or about the year 1762 that matter was arranged, and an Act of Parliament passed confirming the arrangement by which the estates which fell to Henry King were settled on himself for life, remainder to the issue of his marriage with Eleanor King in tail, with power to Henry King to charge the estates with a jointure of 500/. a year for his wife, and with 6,000 /. as portions for younger children. If that power had been executed immediately on the passing of the Act, it would certainly be a fulfilment of the contract; but it is not executed till 1787, which, however, was in the life-time of Eleanor King, and then the contract was completely fulfilled on Henry King's part, as far as concerned the real property, and there was no evidence that he was possessed of any personal property. This being the case, as the portion money was not paid when it should be paid, I think the judgment of the Court below correct in allowing 1828. interest on the sum unpaid from the date of the mar- L0RT0W riage. (viscount) Then as to the 400/., and the 2,000/., the question Gore. was, whether these two sums had been paid by Henry Claim in reKing for Annesley Gore with Gore's money, or with paid'onbondZ his own money; in which latter case he would be entitled to stand in place of the original creditors on Gore's estate. Considering the course of the transactions between Annesley Gore and Henry King, and the lateness of the period at which the claims to these sums were set up, I think the judgment of the Court below right in disallowing them. As to the rest of the particulars, I do not think it necessary to go into them, but I have examined the whole of the case, and I think that the decree of the Court below was, in every respect, right, and I propose that the judgment be affirmed. As to the matter of costs ; this is rather a complicated case, and I cannot say that it was improper to bring it here, and therefore I think no costs ought to be allowed on either side, except to the Careys, who appear to be entitled to their costs. Judgment of the Court below affirmed; but without Costs, except to the Careys. Jane 182?. 29th February; 7th. 21st. 25th March; 13th May, 1828. Marriage; regular, irregular. Adherence. Parties. Evidence. Pleadings, &c.
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