Maria Arabella Dowager Marchioness of Lansdowne v. The Most Noble Henry Marquis of Lansdowne, and William Earl of Wycombe, a Minor, by the said Henry Marquis of Lansdowne, his Father and Guardian [1820] UKHL 2_Bligh_60

UKHL
Maria Arabella Dowager Marchioness of Lansdowne v. The Most Noble Henry Marquis of Lansdowne, and William Earl of Wycombe, a Minor, by the said Henry Marquis of Lansdowne, his Father and Guardian
[1820] UKHL 2_Bligh_60
REPORTS OF CASES HEARD IN THE HOUSE OF LORDS, UPON APPEALS AND WRITS OF ERROR, And decided during the Session , 1820.1 Geo . IV.IRELAND.APPEAL FROM THE COURT OF CHANCERY.

No. 2

Maria Arabella Dowager Marchioness of Lansdowne Appellant v. The Most Noble Henry Marquis of Lansdowne , and William Earl of Wycombe , a Minor, by the said Henry Marquis of Lansdowne , his Father and Guardian Respondents1820 .Power in a marriage settlement to grant to a wife any annual sum of money, or yearly rentcharge to be tax-free, and without any deduction, and to be issuing out of and chargeable upon lands in Ireland , so that such rentcharge do not exceed, in the whole, the yearly sum of 3000 l . of lawful money of Great Britain . Held—that a rentcharge appointed under this power is payable in Ireland in the currency of England. But that the appointee is not entitled to have the sum transmitted to England free of the charge of conveyance and exchange properly so called. The lex loci contractûs and the law applicable to cases of money charged as a rent payable out of land, where no provision as to the place of payment is made by the instrument, are inapplicable to a case where the instrument itself furnishes the means of interpretation.In ambiguous contracts the domicile of the parties, the place of execution, the purpose and the various provisions and expressions of the instrument are material to be considered in the construction.Courts of equity are not bound to adopt the opinion of the courts of law to which a case is sent for advice.This was an appeal against an order and decree of the Court of Chancery in Ireland, in a suit instituted by the Appellant, for recovery of the arrears of her jointure charged upon the lands of the Respondents.

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16th and 17th May, 1794.Settlement of Lansdowane estates.William Marquis of Lansdowne, the father of the Respondent, Henry Marquis of Lansdowne, being seized, for the term of his life, of several estates situate partly in England and partly in Ireland, with a remainder in tailmale to John Henry Petty, commonly called Earl of Wycombe, his eldest son, by deeds * of lease and release, bearing date the 16th and 17th days of May, 1794, and made between the said William Marquis of Lansdowne, of the first part; the said John Henry Petty, Earl of Wycombe, of the second part; John Cross, of Lansdowne House, in the county of Middlesex, gentleman, of the third part; John Willmott, of Bedford Row, in the said county, Esq., and Sir Francis Baring, of London, of the fourth part; and the Right Honourable Henry Richard Lord Holland, and Benjamin Vaughan, of London, Esq., of the fifth part; the greater part of the Lansdowne family estates, situate partly in England and partly in Ireland, (except certain lands in the barony of Ballycowen and King's County, Ireland,) were limited and assured, subject to certain incumbrances, then and still affecting different parts thereof,To the use of trustees, for a term of five hundred years, upon certain trusts thereby declared, with a proviso, that the said term should cease when the trusts thereof should be satisfied;

Footnote

* It has been thought expedient to set forth this settlement with particulars as to the parties, their description, and domicile, and parts of the limitations and provisions not immediately in question, which, at first sight, may appear superfluous. The reason and excuse, for so full a statement, will be found in the arguments adduced in support of the judgment.

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To the use of the said William, then Marquis of Lansdowne, and his assigns for his life, subject to impeachment for waste, except such waste in cutting down timber as should be committed with the consent of his son, then Earl of Wycombe, previously given by writing under his hand:

Remainder

To trustees to preserve contingent remainders:

Remainder

To the use of the said John Henry Earl of Wycombe, and his assigns, for his life, without impeachment of waste: RemainderTo trustees to preserve contingent remainders:

Remainder

To other trustees, for a term of years, to raise portions for the younger children of the said Earl of Wycombe: RemainderTo the first and other sons of the said Earl of Wycombe successively in tail male: RemainderTo the Respondent, Henry Marquis of Lansdowne, then Lord Henry Petty (second son of the said William Marquis of Lansdowne, and half-brother of the same John Henry Earl of Wycombe), for his life; RemainderTo trustees, to preserve contingent remainders:

Remainder

To the first and other sons of the said Lord Henry Petty successively in tail male, with divers remainders over.Recital in the settlement of 1794, making a distinction between Irish and English money.In this settlement, after reciting, in effect, that 22,150 l . remained due to the said Marquis, on

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“That the said Marquis and Earl had valued the manor of Readingstown, otherwise Rahan, the towns and lands of Ballineur, and other lands, situate, lying, and being in the barony of Ballycowen, in the King's County, in the kingdom of Ireland, theretofore the estate of Robert Reading, Esq. at the sum of 28,000 l . of lawful money of Ireland, of the value of 25,846 l . 3 s . 1 d . English: and that the said Marquis of Lansdowne and Earl of Wycombe had agreed that the said premises in the said barony of Ballycowen, so valued as aforesaid, should be conveyed to the said Marquis of Lansdowne, his heirs and assigns, in discharge of the sum of 22,150 l . remaining due to him, subject to the sum of 3696 l . the surplus of the said sum of 25,846 l . for which the said premises were valued as aforesaid, beyond the said sum of 22,150 l .; and that the said sum of 3696 l . should be secured to trustees, to be by them applied in such manner as the said Marquis of Lansdowne and Earl of Wycombe shall direct.”
And the premises were accordingly so conveyed.The settlement also contained recitals and confirmations of two mortgages both of lands in Ireland: the one to the Drapers' Company to secure the repayment of 30,000 l . advanced by them, and secured upon lands in Limerick; the other to a

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The Earl of Wycombe's power of jointuring in the settlement of 1794.The powers to appoint by way of jointure, upon which the immediate question in this case arose, appear in the following terms:hereditaments, and premises, hereinbefore mentioned, and intended to be hereby granted and released, which are situate in the said kingdom of Ireland (other than and except the said manors, hereditaments, and premises in the said county of Kerry, mentioned in the said second schedule hereunto annexed, or hereunder written), so that such rentcharge or rentcharges do not, during the lifetime of the said Marquis of Lansdowne, exceed in the whole the yearly sum of two thousand pounds of lawful money of Great Britain , and do not, after the decease of the said Marquis of Lansdowne, exceed in the whole the yearly sum of three thousand pounds of lawful money of Great Britain , and so that such rentcharges be subject, and without prejudice to, the aforesaid term of five hundred years, and the trusts thereof. And it is hereby further provided and declared, that in case the said Earl of Wycombe shall, by virtue of the power hereinbefore to him reserved, grant, limit, and appoint to or for the use of any woman or women with whom he may happen to intermarry, any such rentcharge or rentcharges, annual sum or annual sums, as aforesaid, he the said Earl of Wycombe shall have full power, by the same or any other deed, or by his last will, as aforesaid, to give or grant to such woman or women, and her and their assigns, the usual powers and remedies, by distress and entry, for recovery of such rentcharge and rentcharges when in arrear, and to limit all or any of the said manors, messuages, farms, lands, tenements, hereditaments, and premises, chargeable therewith, to any trustee or trustees for any term or number of years, for the better securing the payment of such rentcharge or rentcharges as aforesaid, as to him the said Earl of Wycombe shall seem meet; so as such term and terms of years, in case any such shall be limited, shall be made defeazable on the full payment of the rentcharge or rentcharges thereby secured, and all arrears thereof, and all costs and charges relating thereto.” *
“Provided also, and it is further declared by and between the said parties to these presents, that notwithstanding any of the uses or limitations hereinbefore limited or contained, it shall and may be lawful to and for the said Earl of Wycombe from time to time, and at any time or times either before or after his intermarriage with any woman or women he may happen to marry, by any deed or deeds, instrument or instruments in writing, to be sealed and delivered by him in the presence of, and to be attested by, two or more credible witnesses, or by his last will and testament, to be signed and published by him in the presence of, and to be attested by, three or more credible witnesses, to grant, limit, or appoint to or to the use of any woman or women with whom he the said Earl of Wycombe shall intermarry or take to wife, for the life or lives of such woman or women, and in full, or in part only, of or in the nature of her or their jointure or jointures, and in bar of her or their dower, to take effect immediately after the death of the said Earl of Wycombe, any annual sum or sums of money, or yearly rentcharge or rentcharges, to be tax-free and without any deduction, and to be issuing out of, and chargeable upon, all or any part of the said manors , messuages, farms, lands, tenements,

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To this settlement were annexed three schedules, containing the names of the tenements conveyed, and of the occupiers, and the rents at which they were respectively held, valued in Irish and English currency. This settlement was executed in England.May, 1805.William Marquis of Lansdowne died.William Marquis of Lansdowne died in May, 1805; and upon his death, John Henry, Earl of Wycombe, became Marquis of Lansdowne, and succeeded to the family estates under the limitations of the settlement.John Henry Marquis of Lansdowne married the Appellant.20th February, 1809.His appointment under the settlement of 1794, of 3000 l . a year, of lawful money of Great Britain, for her jointure.John Henry Marquis of Lansdowne married the Appellant in his father's lifetime. By a deed of appointment, bearing date the 20th of February, 1809, executed by him in the presence of, and attested by, two witnesses, after reciting the settlement of 1794, and the power of jointuring contained therein, and also reciting that he had resolved to exercise the said power of jointuring, and by virtue thereof to settle upon the

Footnote

* The settlement also contained a power for Lord Henry Petty to charge lands in England or Ireland —with, &c.

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And for the considerations before expressed, and for the more effectually securing the payment of the jointure, the said John Henry Marquis of Lansdowne, in further exercise and execution of the power given or reserved to him by the settlement of 1794, did, by the deed now stating, grant, limit, and appoint, that all the manors, messuages, towns, farms, lands, tenements, hereditaments, and premises thereinbefore charged with the said annual rent or sum of 3000 l . or intended so to be, with their and every of their rights, members, and appurtenances, should, from and immediately after the death of him the said Marquis, remain and be (subject nevertheless and charged with the said annual sum or yearly rent, and the said powers and remedies for recovering the same) to the use of Sir Thomas Tyrwhitt Jones and John Dent therein described, their executors, administrators, and assigns, for the term of three hundred years, to commence and be computed from the death of him the said Marquis, upon certain trusts thereby declared, for better securing the payment of the jointure on the days whereon the same was thereinbefore made payable. *

Footnote

* The appointment also contains the usual power of entry and perception of rents in the event of the jointure being unpaid for twenty-one days.

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This deed also was executed in England; and at the time of the execution thereof all the parties interested therein were domiciled and resided in England.The jointure deed executed in England, and all the parties resident there.14th November, 1809.John Henry Marquis of Lansdowne died without issue, leaving the Appellant his widow.John Henry Marquis of Lansdowne died without issue on the 14th November, 1809, leaving the Appellant his widow; and upon his death Lord Henry Petty, now Marquis of Lansdowne, his half-brother, succeeded to and entered upon and took possession of all the said estates in Ireland, under the settlement of 1794, the net rents of which estates produced about 30,000 l . a year.26th October, 1813.Appellant field her bill in the Court of Chancery in Ireland;stating that she had only received 4350 l . on account of four years jointure; and that she had applied to the Respondent, Henry Marquis of Lansdowne for the arrears, which he had declined to pay.Charges in the bill.Prayer of the bill.On the 26th day of October, 1813, the Appellant filed her bill of complaint in the Court of Chancery in Ireland against the said Henry Marquis of Lansdowne, William Earl of Wycombe, his eldest son, the Right Honourable Richard Lord Holland, and Benjamin Vaughan, Esq. Sir Thomas Tyrwhitt Jones, and John Dent, Esq. setting forth the deed of settlement, the appointment, and facts beforementioned, and stating (among other things) that, since the decease of the said John Henry Marquis of Lansdowne, four years of the said jointure of 3000 l . had become due to the Appellant under the said deed of appointment of the 20th day of February, 1809; and that all payments which the Appellant had hitherto been able to obtain on account of it amounted only to a sum of 4350 l .: and further stating, that the said William Earl of Wycombe was tenant in tail, under the said deed of the 17th of May, 1794; and that the Appellant had frequently requested the said Henry Marquis of

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The answer of the Respondent the Marquis of Lansdowne.The Respondent, Henry Marquis of Lansdowne, by his answer, admitted the marriage of the Appellant with the said John Henry late Marquis of Lansdowne, and the due execution of the settlement of 1794; and he believed that a deed appointing a rentcharge to the Appellant, by the said John Henry late Marquis of Lansdowne in 1809, had been executed in pursuance of the power given him by the said settlement of 1794, and that the same deeds were respectively to the purport stated in the Appellant's bill; and he further admitted, that, on the death of the late Marquis in 1809, he became possessed of the said settled estates, the net profits of which amounted to a considerable sum, and more than sufficient to answer the demand of the Appellant; and that applications had been made to him to pay in British money the charge claimed by the Appellant: and the said Respondent further admitted, that the said Earl of Wycombe, deceased, resided in England when the said deed of 1794 was executed, but denied that he had always resided there.The answer of the Respondent the Earl of Wycombe.The Respondent, the Earl of Wycombe (the first tenant in tail of the said estates, under the settlement of 1794, expectant on the decease of his father, the said Henry Marquis of Lansdowne), being an infant by his answer submitted his rights to the protection of the Court.Issue joined and witnesses examined.The answers having been replied to, and issue being joined in the cause, witnesses were examined on behalf of the Appellant and

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May 27, 1814.Order on hearing, under which the parties were to obtain the opinion of the Court of Common Pleas in Ireland, whether the Appellant's jointure was payable in English or Irish currency, and where.The cause came on to be heard before the Lord High Chancellor of Ireland, on the 27th of May, 1814, when his Lordship was pleased to order and direct, “That the cause should stand over, with liberty for the parties to proceed to obtain the opinion of the Court of Common Pleas in Ireland, on the question, whether the annuity or jointure so payable to the Appellant, were payable in English or Irish currency, and where the same was to be paid.”Michaelmas Term, 1814.Case argued.A case was accordingly prepared, and argued before the Court of Common Pleas in Michaelmas Term, 1814; and the judges of the said Court, during the same Term, certified their opinion as follows:Judges' certificate that the jointure was payable in Irish currency, and in Ireland.
“That the jointure of the said Marchioness of Lansdowne, in the said case mentioned, being a rent charged on lands in Ireland, is payable in Irish currency; and that the same is payable in Ireland.”
Dec. 8, 1814.Cause heard on the judges' certificate.The cause came on to be heard before the Lord Chancellor, on the certificate of the judges of the Court of Common Pleas, upon the 8th day of December, 1814, when his Lordship made the following decree:Decree, that the jointure was payable in Irish currency in Ireland, and not elsewhere.rentcharge of three thousand pounds per annum, therein mentioned, according to the currency of money in Ireland, and not according to the currency of money in Great Britain, and is entitled to be paid the said rentcharge in Ireland, and not elsewhere; and the Defendant having, by his answer, offered to pay the same, it was referred to the Master to take an account of what was due upon the foot of the said rentcharge, after all just allowances; and it was further ordered, that all parties should abide their own costs.”
“That, according to the true intent and meaning, and the legal operation of the deed of the 17th of May, 1794, in the pleadings mentioned, the Appellant is entitled to be paid the

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Appeal against the decree.Against this decree, and the order upon the original hearing, the appeal was brought praying that the House would so far reverse the said decree, as to direct, “That, according to the true construction of the said deed of the 17th of May, 1794, the Appellant shall be paid her said jointure of three thousand pounds yearly, according to the currency of money in England , and not according to the currency of money in Ireland, and that she shall be paid the same in England. ”For the Appellant—The Attorney General and Mr. Heald.Argument, May 3.It is a general rule, supported by many authorities, that money is to be paid according to the currency of, and at the place where, the contract is entered into, unless the parties to the contract specially agree otherwise.In this case the parties to the deed of 17th May, 1794, so far from specially agreeing otherwise, have thereby provided that the annuity shall

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The annuity being charged on lands in Ireland, does not alter the rule before stated; if so, the 14th Geo. III. c. 79, * would appear to be unnecessary. Contracts must be interposed according to the law of the place where they are executed.John Henry Earl of Wycombe was a purchaser under the deed of 1794, for valuable consideration; and such deed is to be construed in the manner most beneficial to him.The contract in this case, it must be presumed, had a reference to the country where the parties resided, and for that special reason the words “Great Britain” were introduced. The marriage was, in part, in consideration of the power, and the appointment was according to the power. The Court below seems to have considered the single circumstance that it was a rentcharge payable out of lands in Ireland. They disregarded the fact that the parties were resident in England, and

Footnote

* The act was passed to remove doubts which had arisen from the statute, 12 Anne, St. 2, c. 16, as to the legality of contracts made between parties resident in Great Britain, for monies lent at interest beyond 5 per cent. upon the security of lands, &c. in Ireland and the West Indies and the assignment of such securities. It enacts that such contracts and assignments made and executed in Great Britain shall be as valid as if executed in the place where the lands, &c. lie—provided the money lent does not exceed the value of the lands, &c. mortgaged—and it provides that no penalties under the statute of 12 Anne shall be incurred upon such contracts for interest at the rate established in the country where the mortgaged premises lie.

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The Lord Chancellor . Have you the case sent to the Court of Common Pleas in Ireland? If it states no more than the printed cases it was not worth sending. The deed of settlement speaks of sterling English money, and of money of Ireland, showing an advertence to the distinction. Whatever may be the effect of the lex loci contractus , or that the money is to be paid, as a rentcharge issuing out of lands, in cases where no provision is made by the deed, or instrument of contract: the rules of law arising out of those circumstances are inapplicable to a case where the instrument itself furnishes the means of interpretation. Upon looking at the various expressions of the deed, the first striking question which occurs is, whether sterling English and lawful money of Great Britain do not mean the same thing?Lord Redesdale . The provision with respect to the 22150 l , and the same for 3696 l , the surplus of the valued estate is clearly English money. There is one respecting the money payable out of the Buckinghamshire estate, which is not expressed to be either English or Irish.For the Appellant. The contract may be, and apparently is, for lawful money of Great Britain payable in Ireland. By this construction the distinction taken in Phipps v. Lord Anglesea * is

Footnote

* 5 Vin. Abr. Condition Q. b. 8. v. post, p. 88.

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Lord Redesdale . There is no lawful money of Ireland; it is merely conventional. There is neither gold nor silver coin of legal currency—nothing but copper.For the Appellant. The valuation of the lands having been made in Irish currency by Irish surveyors, was afterwards, for the purposes of the settlement, calculated in English currency: that fact appears by the deed itself.For the Respondents— Mr. Horne and Mr. Abercrombie .The question turns entirely on the power.

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Lord Redesdale . What is the difference between lawful money of Great Britain and sterling money? In the statute, * under which the Lord Chancellor receives his salary, the amount is fixed in English money, which is called sterling: that amount is afterwards computed and expressed to be 10,833 l . 6 s . 8 d . Irish currency. There is no such thing as Irish money; it is Irish currency.For the Respondents. No distinction is to be taken between lawful money and sterling money. In the case of Phipps v. Lord Anglesea , the clause, providing the jointure for the wife, directed † that the payment should be without abatement , which words are omitted in the provision ‡ as to portions for the daughters; and that part of the case was decided upon the ground that it was to be considered as a sum in gross, and not as a rent issuing out of the lands .” §The question is not always decided by the place of contract. In Robinson v. Bland , || where the question was upon a bill of exchange, a contract

Footnote

* 42 Geo. III. c. 105, s. 1.† This appears only by allegation, arguendo , of the counsel for the Defendants, in the case cited, who represent it to be “a rent to be paid at London without any deduction for exchange.”—See 5 Vin. Abr. 209.‡ The portions for the daughters were to be raised by a term vested in trustees for that purpose.§ But Parker, C. who decided the case, commences his judgment, by saying, “the portion ought to be paid here where the contract was made and the parties resided, and not in Ireland where the lands lie charged with the payment;” and he relies upon the intention of the parties.|| 2 Burr. Rep. 1077.

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Footnote

* 2 P. W. 88.† 2 Atk. 465.

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By the general rule of law, * an annual sum chargeable on lands is payable on the land, and in this respect differs from a sum in gross secured on land which is payable to the person, where no place of payment is expressly appointed. In this case the legal effect of the contract is, that the money which the parties to the deed had power to charge upon lands situate in Ireland only, is payable in Ireland, and in Ireland only. There is no personal obligation to pay, nor personal remedy to enforce payment; the power is to charge certain lands, situate in Ireland, with a rentcharge. The whole subject-matter is local by the very nature of the contract. The grantee of a rentcharge (and the appointee of a rentcharge is as such grantee) is to demand it where he can find his remedy; that is to say, upon the land. † It was argued for the Appellant, that the rule of law is, that contracts are to be judged according to the law of the country where such contracts were made, and that this deed, having been executed in England, was to be construed accordingly; but that rule extends only to personal contracts, and is confined to contracts to be performed within the country where they were made. It is a rule as general and recognised, ‡ that contracts entered into with an express view to the law of another country, and to be performed in another country, are to be judged of according to the law of that

Footnote

* Co. Lit. 210 (b.) 211 (a.)

† Gilb. on Rents, 8vo. Irish edition.‡ Or an exception to the general rule before stated.

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Footnote

* Sir John Davies' Reports, Case of mixed money, in the last resolution near the end. The passage quoted is from Budelius de re Nummaria, 1. 2, c. 21, and it is there applied to contracts between merchants.† Hub. lib. i. tit. 3, n. 10. The passage quoted occurs in the title “De conflictu Legum,” and is specially applied in that place to the subject of marriage contracts. Its general application seems to be borne out by the authority of the last resolution in the “Case of mixed moneys.”‡ 2 Burr. 1078.

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As to the argument raised upon the words “lawful money of Great Britain.” British money is current in England; so is it current in Ireland; but not at the same rate. The same constitutional prerogative, which stamps its currency in England at one rate, ascertains its currency in Ireland also at another rate. Money, by the law of Ireland, ought not to be current at one rate, and payable at a different rate, respecting a contract to be there performed. That mixed money, does not import English

Footnote

* Prec. Chan. 128.

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In granting a power to create a rentcharge to a given amount, the parties cannot well be implied to have intended that a greater rentcharge might be created under the words used, than could be levied by distress on the lands, according to the law of the country where the lands lie; and it is clear law in Ireland, that under a distress and avowry for a rentcharge of 3000 l . lawful money of Great Britain, no more could be levied than 3000 l . of Irish currency, although the party might insist upon payment in money of the coinage of England . The common printed forms of bonds and other instruments used in Ireland are in these terms; and yet it never has been attempted to recover upon these instruments according to English currency; so well ascertained is the meaning of the words “lawful money of England.” In truth, a different decision on these words would operate to improve considerably the situation of all obligees in Ireland, and to injure that of obligors, who have in all cases signed bonds for payment of lawful

Footnote

* Davies' Rep. qua supra . The case of “mixed moneys” is more favourable to the Respondent's argument than it is here represented. For, upon a contract to pay 100 l . sterling , lawful money of England , it was held in the Privy Council, upon the opinion of the judges, that a tender of mixed moneys was sufficient.—See a short abstract of that case in a note at the end of this case.

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This annuity being charged on Irish land, it must be intended to be Irish money; it could only be recovered by process in Ireland.These parties certainly understood, and took the distinction between English and Irish money, as appears by the recital of the valuation of part of the lands; but in the clause in question the language is varied. The jointure is limited to 3000 l . lawful money of Great Britain; but there is no direct power to charge the estate with lawful money of Great Britain. The power is merely to charge; and the words tax-free, and without deduction, relate to the taxes of Ireland.The Attorney General in reply . The attention of the parties having been called to the distinction, as appears by the valuation, what could they mean, by using the words lawful money of Great Britain, but to distinguish it from Irish currency?The Lord Chancellor. How would they deal with a recital, that a man having advanced 12,000 l . stering, it is provided that he shall receive 12,000 l .? Would they contend he must receive so much less?The Attorney General . That is precisely the case upon the mortgage to Munday, which is for 30,000 l . This is no question between landlord and tenant upon a distress for rent. If the power had been to charge dollars, no objection could be raised on the part of the tenant. Is the power given? That is the sole question.

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The Lord Chancellor. The power is clearly to charge an annuity of 3000 l . lawful money of Great Britain. If the donee had exceeded the power, the appointment would have been void at law—in equity it might have been good except for the excess. But what has a court of law to do with that question?The Attorney General . It was not argued in Ireland that the appointment exceeded the power, which must have been the case if their construction is right.The Lord Chancellor . * It is difficult to imagine how this case found its way into a court of equity, except on the ground of calling upon the trustees to act. If the Appellant is entitled, as grantee of a rentcharge, she might have proceeded to enforce her legal remedy by distress. It is stated that the Lord Chancellor of Ireland, after the return of the certificate from the Common Pleas, retained an opinion contrary to that certificate, but made the decree according to it, from deference to the judges of the Common Pleas. In that surely there must be some mistake. For, although it is highly useful in legal questions to resort to the assistance of the courts of law, yet it must be well known to those experienced in the practice of courts of equity, that they are not bound to adopt the opinion of the courts of law to which they send for advice. It has occurred to me to send the same case successively to the Courts of King's Bench and Common Pleas, and not to adopt the opinion (though highly to be respected) of either of those courts.

Footnote

* At the conclusion of the reply.

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If this were the case of a simple charge of 3000 l . on lands in Ireland, the place of contract, the domicile of the parties, the place appointed for payment, and other circumstances, might require consideration, and would furnish the ground for the decision of the case: but the instrument itself must, in this case, give the rule of decision,— a settlement making various arrangements, some like to the provision in question, others different from it. It was impossible that the Court of Common Pleas should have given a satisfactory opinion upon the question, if the case was sent nakedly to them without a statement of the deed. It will be proper that we should carefully inspect every part of the deed before we decide whether the judgment ought to be affirmed or reversed.May 5.The Lord Chancellor. This is a question, whether, under an instrument purporting to be an appointment, according to a power, of an annuity of lawful money of Great Britain, the sum is to be paid in lawful money of England, at the rate of English or of Irish currency.Before I state the instrument containing the power, I ought to observe, that, upon looking at the settlement, I perceive it was expedient and proper to raise this question in equity; because, by the deed of settlement, various terms of years were created for various purposes, and the remedy in a court of law might have been defeated, if those terms had been set up to obstruct such proceeding.The Lord Chancellor of Ireland, it is said, was of opinion that the annuity was payable in English currency; but thought fit, nevertheless, to direct a case for the opinion of the Court of Common

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This is a power to charge the lands with a jointure of “lawful money of Great Britain.” The appointment is made according to the authority, and in the words of the power. The question is whether these words can be said to mean Irish currency. In the naked case of a charge upon lands the law is clear and settled; but upon wills and instruments of marriage contract all the cases cited authorise a distinction. In such cases the intention of the person making the will, and of the parties to the contract, is to be collected from the different parts of the instrument. The case of Phipps v. Earl of Anglesea is to be found in three books, * but is most fully reported in Viner's Abridgment.

Footnote

* 5 Vin. Abr. 209, part 8. 2 Eq. Ca. Abr. 220, part 1, 754, part 3. 1 P. W. 696.

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Footnote

* It is singular, that, although (in Viner's Report) nothing appears in the statement of the facts of the case, nor in the report of the judgment, of any specification as to the kind of money to be paid, but simply that 12,000 l . is to be raised; yet,

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It is true, that, in Phipps v. Lord Anglesea , the distinction is taken in the judgment which was urged in this case at the bar, that there it was a sum in gross, and not a rent issuing out of land: but that seems to be in answer to that part of the argument in that case, which is founded on the different expressions of the settlement as to the jointure of the wife, and the portions of the daughters. As to the former, which is by name a rentcharge, it is provided that it shall be paid in London without deduction for the exchange; whereas, in the declaration of the trust of the term created for raising the portion these words are omitted, and it is only said in trust to raise 12,000 l . Upon this point of the argument the Court seems to have been of opinion, that, in the case of a rentcharge, the addition of such words might be necessary; but that the question as to a sum in gross, (which the portion in that case was considered to be) was to be decided on circumstances, and accordingly the decision rests, in substance, upon the domicile and the presumed intention of parties resident in England, that a portion secured for a daughter should be, paid to her in England. That case decides nothing which can rule the present case; and although it may be inferred from that case that the Court thought, that, in the simple case of a rent charged upon lands in Ireland, it would be payable in Ireland, and in Irish currency, yet nothing

Footnote

in the argument for the defendant, where the language of the settlement is discussed, and the provisions as to the jointure and the portions are contrasted, this passage occurs:
“ It is only said (as to the term for raising the portions) in trust to raise and pay out of the premises the sum of 12,000 l . of good and lawful money of England , &c.”

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The case of Saunders v. Drake , * shows, that whatever the rule may be in the simple case of a rentcharge,—in a devise the construction must be according to the intention. In that case the testator being domiciled, and, making his will in Jamaica, gave, in the first place, certain legacies to be paid in sterling money , and immediately after two legacies are given by the will, without any direction that they should be paid in sterling money. The person who claimed one of the latter legacies filed a bill claiming payment of his legacy in English currency. Lord Hardwicke , in that case, was of opinion, that the residence of the person devising must decide the question as to the legacies given generally; but where directed to be paid in sterling money, they ought to be paid in the currency of England, although the testator resided in Jamaica. So, if the question now before us had occurred upon an Irish will, the rule established in Saunders v. Drake would authorise our deciding that a legacy, given in the words contained in this power, must be paid in the lawful money of Great Britain, that is, in the currency of England.In Wallis v. Brightwell , † again, it appears, that intention is to furnish the rule of decision. There the testator living with his wife in England, by his will, made in England, devised his lands in Ireland to a trustee for five hundred years in trust, out of the rents and profits to pay 80 l . per annum to his wife for life. It was argued, in that case,

Footnote

* 2 Atk. 465.† 1 P. W. 88.

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So again, in Pearson v. Garnett , * Lord Kenyon said, he was tied down by the authorities; and held that unascertained or general legacies must be paid in the currency of the country where the will is made.If this be the rule of law in the case of a legacy, where the party must claim under the voluntary benefaction of the testator, will it not, a fortiori , apply to a case where the party is a purchaser? In this case, it must be remembered, the appointment, under a power given by contract, is of a sum of 3000 l . a year, lawful money of Great Britain; and such sum must be paid in such lawful money, unless the instrument of contract, in

Footnote

* 2 Bro. C. C. 38, 46, 226, Prec. in Chanc. 201, n.

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True, it is a rentcharge, but upon that the only question will be what is the quantum of the rentcharge? How it is reserved is immaterial, whether in guineas, sovereigns, or dollars. It need not be in money at all. If it had been in loaves or oatcakes, the principle of decision would have been the same. There are throughout the settlement charges on English as well as Irish estates. Can it be said, as to any of these charges, that a different sum is to be paid to the person entitled, according to the site of the estates out of which the money is drawn? In those instances, where Irish estates only are charged, the situation and conduct of the parties, and the language of the instrument of contract, show that they meant English currency. In the schedule annexed to the settlement, the Irish estates are valued according to Irish currency, and then it is reduced to English. If the parties have, in the schedule, recognised the distinction, and shown an intention to compute in English currency, how can I understand that they make no distinction, or have a different meaning in the body of the deed? Even in the body of the deed the distinction is taken and acted upon with respect to the compensation given to the Marquis of Lansdown.The question, looking at the whole deed, is whether the power is duly exercised by granting a

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It is said to be the practice in Ireland, (but I never heard of a decision to the effect,) that a bond given for 3000 l . lawful money of Great Britain could be discharged by paying 3000 l . of Irish currency.In this case the decision must be grounded upon the construction of the instrument before us.There is a point remaining to be noticed, which did not form part of the argument at the bar of the House, although it is included in the certificate, and adopted by the Court of Chancery; namely, the question, whether the annuity is to be paid in England or in Ireland. Upon this, it is to be observed, that the power is to charge Irish lands with so much lawful money of Great Britain. It is not, however, such a power, that it is necessarily to be inferred that the money must be paid in England. The appointment directs it to be paid in Lincoln's Inn Hall; but we can only decide that the power is well executed, so far as it charges on the lands a sum of 3000 l . lawful money of Great Britain. As to the cost of exchange, the appointee may be liable to that deduction. I found my opinion upon the short reason, that, by the appointment, 3000 l . of lawful money of Great Britain is given according to the power, and that such a provision, from the expressions and the whole frame of the contract, seems to have been contemplated by the parties.Lord Redesdale . There is no doubt, that, according to the intention of the parties, and the legal operation of the appointment made under

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No part of the deed of settlement furnishes a ground to infer that the money to be charged should be paid in Irish currency. As to exchange the case is different. The currency is always the same: the rate of exchange depends on circumstances, which may cause a gain or loss upon payment in either country. If the proceeding had been by distress, a tender of 3000 sovereigns would have put an end to the distress, and the tender must have been where the proceedings took place. The right of demand and payment was certainly in Ireland. In that part of the appointment, which directs payment in Lincoln's Inn Hall, the donee has exceeded his power. The proceeding in equity, and not by distress, was necessary in this case, because the term of five hundred years might have been interposed and defeated the distress; but a court of equity could only decree payment of the sum charged into court, or to the individual, suing by his agent, in lawful money of Great Britain. The court could not decree that 3000 sovereigns should be sent to the claimant in England. There is, therefore, no doubt that the money is payable in Ireland. The question then is, whether the money is payable in Irish currency which is not expressed, or in lawful money of Great Britain which is expressed in the deed? In all cases of a similar description upon legacies, where the word “sterling,” or some word equivalent has been used, the money has been held payable in English currency,

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The decree orders that all parties shall abide their own costs, which is contrary to the provision of the deed; but no alteration can be made here in that respect, as it is not made the subject of appeal.Lord Lauderdale . If lawful money of England is paid in Dublin, the only deduction to be incurred would be the price of the purchase of a bill, or the cost of conveyance. There is a great difference between paying a sum in English money in Dublin, and paying the same sum in Dublin, according to the difference of exchange, in which the value of the Irish currency is computed.May 8.The Lord Chancellor . Upon looking at the cases, it appears that the appeal extends to the question of costs; and as the term given, according to the power to secure the annuity, provides for the payment of all “costs and charges relating thereto,” we think the reversal ought to be with costs. As to the other points it will be sufficient to reverse the decree on further directions. The reference to

Footnote

* Phipps v. Lord Anglesea , Wallis v. Brightwell , qua supra .

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Lord Redesdale . Care should be taken, in framing the cases, to show what are the points of appeal. No one could have imagined, from reading these printed cases, that the reference to the Common Pleas was a ground of appeal.July 3, 1820.—Ordered and adjudged, that the decree of the 8th of December, 1814, so far as it orders, adjudges, and declares, that according to the true intent and meaning, and the legal operation of the deed of the 17th of May, 1794, in the pleadings mentioned, the Appellant, is, and she was thereby decreed, intitled to be paid the rent charge of 3,000 l . per annum therein mentioned, according to the currency of money in Ireland, and not according to the currency of money in Great Britain, and so far as it orders, adjudges and decrees that, the Respondent having offered to pay the said rent charge accordingly, it should be referred to one of the masters of the said court of chancery, to take an account of what is due on the foot of the said rent charge after all just allowances, and that all parties should abide their own costs; be and the same decree is hereby so far reversed. And it is declared, that according to the true intent and meaning, and the legal operation of the said deed of the 17th of May, 1794, the rent charge therein mentioned, of 3,000 l . of lawful money of Great Britain, is to be deemed a rent charge of 3,000 l . of lawful money of Great Britain, and not a rent charge of 3,000 l ., according to the currency of money in Ireland, and that according to the express words of the said deed of the 17th of May, 1794, the term of years thereby authorised to be created for better securing the payment of such rent charge, was to be made defeasible only on full payment of such rent charge, and all arrears thereof, and all costs and charges relating thereto: and it is further ordered and adjudged, that the Appellant is entitled under the deed of the 20th of February, 1809, to an annuity, or yearly rent charge of 3,000 l . of lawful money of Great Britain, to be issuing out of and chargeable on the lands in the said deed mentioned, and to all costs and charges sustained by non-payment thereof, and the Respondent having offered to pay the said rent charge as a rent charge of 3,000 l . according to the currency of money in Ireland, and not as a rent charge of 3,000 l . of lawful money of Great

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In the case of mixed monies, as reported by Sir John Davies, the contract was by bond, upon condition to pay at a future day 100 l . sterling , current and lawful money of England , at the tomb of Earl Strongbow, in Christ Church, Dublin. The bond was executed in April, 43° Eliz. upon a purchase of wares, by a merchant of Drogheda, from one Gilbert, of London, and at a time when the pure coin of England was current in Ireland. Before the day or payment specified in the bond, Queen Elizabeth, in order to pay the troops of the royal army which had been many years employed in Ireland, in the suppression of Tyrone's rebellion, caused a great quantity of mixed monies, with the stamp of the Arms of the Crown, and the inscription of her Royal style, to be coined in the Tower of London, and transmitted to Ireland, and a proclamation was issued, bearing date the 24th of May, 43° Eliz. declaring those mixed monies to be lawful and current money in the realm of Ireland , and commanding all her subjects and others using traffic and commerce in that kingdom to receive those monies in payment of debts, &c. Brett, the obligor, tendered the mixed monies in payment, and whether the tender was sufficient to save the forfeiture of the bond, was the question, which was brought before the privy council , where Gilbert, being a merchant of London, exhibited, a petition against Brett, for the speedy recovery of his debt. Upon advice of the judges, the council resolved that the tender was sufficient.See 1 Eq. Ca. C. 36 (E). Under that title, pl. 2. the correctness of the Report in 2 Vernon 395, of the case of Lord Ranelagh v. Sir J. Champant , is doubted, and in Prec. in Ch. 108, where the same case is reported; it is said that Irish interest was allowed. See the Authorities on this head, collected in Mr. Raithby's Edition of Vernon, ii. 395.