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North and South Wales Bank v David Morgan and others

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URL: http://newspapers.library.wales/view/4580603/4580606/34/morgan       Date checked: 12-03-2016
Source: NLW Welsh Newspapers online The Western Mail 14th February 1871       Date: 1871
Copyright:       Type: Newspaper
Description: An account in the Western Mail of a case brought by the bank against Thomas and Catherine Edwards of the Wooden House public house, Llanbadarn, John Jones, grocer of Commerse House, Aberystwyth and David Morgan, brewer of Llanon.

Transcript:
• ABERYSTWITH COUNTY COURT. IMPORTANT DECISION IN AN EQUITY CASE. At the Aberystwith County Court last Saturday, his Honour, Serjeant Tindal Atkinson, delivered judgment in the case of the North and South Wales Bank v. Edwards, Jones, and Morgan. The case was fully heard at the last court, the attorney for the plaintiff being Mr. Ravenhill, and Mr. Atwood appearing for the defendants. The defendant, Thomas Edwards, and his wife, are the keepers of a small public-house, called the Wooden House, near the village of Llanbadarn the other defendants are Mr. John Jones, grocer, Commerce House, Aberystwith, and Mr. David Morgan, brewer, Llanon. The cause created great interest, and his Honour's judgment was greatly looked for. The facts of the case will be gleaned from its perusal. His Honour said;-In this case, the North and South Wales Bank, by their public officer, Richard Jones, sues the defendants, Thomas Edwards, Catherine, his wife, David Morgan, and John Jones, and prays for relief under the powers conferred upon this court by the Equitable Jurisdiction Act, 1865. The facts, as they were proved before me at the hearing on the 17th January last were that the defendant, Catherine Edwards had been previously married to Joseph Davies, a grocer, who died at Smelting in Cardiganshire on the 17th of April 1862, leaving his widow, the present defendant, and seven children. Joseph Davies had entered into mining transactions, and in February, 1862, he accepted a bill for £45 in favour of one Henry Morgan, for joint mining purposes, which bill was duly endorsed by the plaintiff's bank and by them at that time discounted. Joseph Davies, at the time of his death, left personal estate to the extent of £320, and after paying certain debts and charges, the widow, one of the present defendants, who had taken out letters of administration on the 2nd July 1862 found herself in possession, after paying for the funeral expenses and sundry charges{ sum of £156 10s. 6d, £150 of which she invested on the 19th March, 1863, in the purchase of an assignment from one John Hewitt, of a mortgage on freehold property, situated at Ponkey, in the county of Denbigh. The bank, from time to time, down to the month of December, 1864, renewed the bill of exchange as it became due, the defend- ant Catherine Edwards accepting it without stating on the face of it that she accepted it as administratrix. On the 7th Sept., 1868, the plaintiff, as the public officer of the North and South Wales Bank, issued a plaint from this court against the defendants Thomas Edwards and Catherine his wife, to recover the sum of £56 7s. 10d., principal and interest, and costs, due upon the dishonoured bill, and on 20th October, 1868, obtained judgment. Neither the plaint nor the judgment shows that the defendant Catherine Edwards was sued as administratrix. In the meantime, namely, between the 7th of September, the date of the issue of the plaint, and the 20th of October, that is to say, on the 16th of September, 1868, the defendants Thomas Edwards and his wife executed an assignment of the mortgage to the two defendants, David Morgan and John Jones, who are now the holders of such transferred mortgage. It is under this state of facts that the plaintiff, as public officer of the bank asks for relief under the equitable jurisdiction of this court, praying that an account may be taken of the personal estate of the late Joseph Davies, and that such estate may be duly administered under a decree of this court, and that the two defendants, David Morgan and John Jones, may be restrained by injunction from parting with the mortgage so transferred to them, on the ground that such transfer was made without any valuable consideration, and that it was fraudulent in this, that it was made by the defendant and his wife to the two other defendants for the express purpose of defeating the plaintiff's judgment, by preventing an execution being levied. It may be stated here that the plaint in the present case contains an allegation, in the fourth paragraph, that the public officer of the said bank, in September, 1868, commenced an action in the Aberystwith County Court, and obtained a judgment against Thomas Edwards and Catherine, his wife, 'as such administratrix,' for the sum of £56 7s. I find that this statement is not accurate, but, on the contrary, that the judgment is in the ordinary form, as if the defendants were principals, and contains no mention of the defendant, Catherine Edwards, being sued in a representative capacity. At the hearing I was asked by Mr. Hill, the attorney for the plaintiff, to amend the plaint and the judgment, by adding the words as administratrix," but I have come to the conclusion that I have no power to make any amendment in a record of this court, by inserting words in the judgment, the effect of which would be to make an entirely different fund liable for that for which another fund could alone be legally availahle, The authorities are conclusive that the court can make no amendment, the effect of which would be "to render the record false:" "Carr v. Cooper;" 1, Beel and Smith's Reports," p.230, The present plaint is inaccurate also in the 4th paragraph in the same way, namely, by stating that a judgment in the above actions was obtained by the plaintiff against Thomas Edwards and Catherine his wife, as such administratrix as aforesaid," but as this allegation is made in a proceeding forming part of the proceedings in a pending suit, the court has full power to make the amendment asked for by the plaintiff, and orders that the words as such administratrix," in the 4th and 5th paragraphs, be treated as surplusage, and struck out. The court has now to consider the statement in the 5th and 6th paragraphs of the plaint, which allege that in anticipation of an adverse judgment in the original suit, and for the purpose of preventing the plaintiff from levying execution, the defendants, Thomas Edwards and Catherine his wife, transferred to the two defendants, David Morgan and John Jones, the mortgage security in question, and that at the time of such transfer they were aware that the money secured by the mortgage formed the greater part of the late Joseph Davies's estate, that no valuable consideration was given by them for such assignment, and that they were party and privy to the object for which such transfer was made, namely-to prevent execution on the said judgment debt, and the evidence and admissions made before me at the hearing satisfy my mind that the allegations of conduct and motive are substantially well founded. The interest which the defendant Catherine Edwards had in the money represented by the mortgage, was, under the Statute of Distribution, one- third of the amount realised, and it was clearly a breach of trust on her part to the intestate's seven children, or such of them as had not been paid their shares of the residue, to transfer their interest in the mortgage to the defendants Jones and Morgan, without valuable consideration, but when this is coupled with the fact that throughout the defendant Morgan, who seems to have taken the most active part in the transaction, and who now holds the mortgage security, has never claimed to apply to his own use the interest paid to him from time to time by the mortgagor; but on the contrary, has, in his debtor and creditor accounts with the defendant Thomas Edwards, given him credit for such payments, it is impossible to arrive at any other conclusion then that the assignment of the 16th September, 1868, was colourable, and that no property passed or was intended to pass on that occasion, and that which really took place was, as the defendant Thomas Edwards stated at the hearing, done to defraud the bank." Being also of opinion that it was never agreed between the bank and the defendant Catherine Edwards that at the time when the first bill was given by her, in renewal of that of her late husband, and subsequently, that it should operate as a novation or substituted contract, so as to change the liability, and extinguish the liability to recover the amount from the estate of Joseph Davies and that, notwithstanding the judgment in the suit in the County Court, such debt still exists and can be enforced under the powers of this court, I grant the relief prayed for in the plaint, by making a decretal order that an account be taken of the personal estate of the late Joseph Davies, and that such estate be administered under that order, and that the defendants David Morgan and John Jones be restrained, by injunction, from transferring or parting with the mortgage security of the 19th of March, 1863. I reserve the question of costs.
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Notes:
Linked to
Felinfor Brewery , Heol y Mor, Llanon, Llanon
Morgan, David [3 Feb 1814-8 Dec 1882]

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