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other executors, in a suit which This Mr. Scarlett refused, on the was instituted in 1836 by a lady, ground, as it was stated, that he claiming to be interested in the
saw no reason why he should be trust. Gloucester House was pure bound to a certain price, and thus chased by the Duchess, and the placed in a different position from arrangements with respect to the any other bidder. On this refusal, purchase were also conducted by a reserved bidding of 25,0001. was Mr. Currey ; but in most of these fixed by the trustees. The plaintransactions relating to the estate tiff, Mr. Bulteel, was present at of the Duke, Mr. Currey acted the auction, but there was no sale. more commonly as a trustee and The following day the plaintiff co-executor with the other gentle- called on Mr. Currey, and offered men, rather than as solicitor, and 21,5001., which was not accepted, in many of those transactions no although Mr. Currey rather adsolicitor, strictly speaking, was en vised Lord Abinger to concur in gaged. The sales of the personal accepting it. On the 17th of July, estate took place at different times, 1838, the plaintiff offered 22, 2001. with the common advice and con for the estate ; and on that offer sent of the executors, Mr. Currey being communicated to the Combeing in most cases the executor missioners of Woods and Forests, who immediately instructed the they made a conditional offer of brokers and others for that purpose. 23,0001. On the 19th of July, From the time of the conveyance Mr. Currey received two notes of 1835, the three trustees en from Mr. Scarlett, offering 22,0001. deavoured to find a purchaser for for the estate, and referring to a the Bagshot estate, which was communication which he had had three times offered for sale by auc with Sir Edmund Currey, in which tion, the conditions of sale having he understood the latter to give been jointly determined upon. Ă him the refusal of the purchase. negotiation was opened with the A day or two afterwards Mr. ScarCommissioners of Woods and Fo- lett was informed of the offer made rests, the estate having been con on behalf of the Crown, and he sidered a desirable purchase by then also made a conditional offer them from its great extent, and of 23,0001., which was not acits situation in the neighbourhood cepted. Lord Abinger was at this of other estates belonging to the time on the Oxford Circuit, and Crown. The commissioners, how on the 23rd of July he wrote to ever, then would not give more Mr. Currey as follows: than 21,0001., which was refused. “My dear Sir,--Having heard It appeared from the evidence in that my son has made some prothe cause, that there had been a posal to you and Edmund about proposal to buy the estate by the the Rapley estate, I write to apHon. Robert Scarlett; and on the prize you that it is exclusively his last attempt to sell by auction, own affair, and has been his own which was in June, 1838, it was doing. He will have no assistance proposed, that the sale should be from me in the matter, nor shall advertised as to take place without I take any interest directly or inreserve, if Mr. Scarlett would un- directly in it. Indeed I think I dertake to give 25,0001., if there ought not to give any opinion on were no bidders to that amount. it, and shall decline doing so. I
presume his object is in a great to weary you with a repetition of measure to gratify Edmund, which particulars. I did not receive your I hope he may be able to do with- letter until yesterday. out any loss to himself.
“ Yours very faithfully, “ Yours truly,
“ B. Currey." “ Abinger. This letter was received by Lord “I hope to be in town on the Abinger on circuit, and on the 3rd of August."
same day he received a letter from This letter was not received by Mr. Scarlett, complaining of the Mr. Currey until the morning of precipitancy of the two trustees, the 25th of July. In the mean and stating that he would himself time, on the 24th of July, Mr. be willing to give 25,0001. or Bulteel increased the amount of 26,000l. for the estate, which sum his offer to 25,0001., which was he thought it was worth. Lord communicated to the Commission- Abinger then replied to Mr. Curers of Woods and Forests, but did rey's letter as follows :not produce any advanced offer from them. Mr. Bulteel being
“ Monmouth, July 27, 1838. anxious to bring the treaty to a “ Sir, I have received your conclusion, a meeting was ap- letter, but having by the same post pointed for the following day, of received communications which Sir Edmund Currey, Mr. Benja. lead me to think that a higher min Currey, and Mr. Bulteel. price may be obtained for the Mr. Scarlett had then left town, estate than the sum of 25,0001., and could not on that day be com I cannot for the present consent municated with, Sir Edmund to the sale to Mr. Bulteel at that Currey thought he would not be price. I think you should inform likely to give so much as 25,0001., Mr. Bulteel of this without delay. and Mr. Benjamin Currey, with As we sell as trustees, we are the concurrence of Sir Edmund bound to get the highest price Currey, then agreed to sell the possible before we sign a contract. estate to Mr. Bulteel for 25,0001., 1 shall be in town towards the and an appointment was made for end of next week. the 30th of July, for the purpose
“ Yours truly, of signing the contract. The fol
“ ABINGER." lowing day, the 26th of July, Mr. Benjamin Currey immediMr. Benjamin Currey wrote toately replied to his Lordship by Lord Abinger :
the following letter:“My dear Lord,- After a hard battle, I have at last sold the
“ 28th of July 1838. Bagshot estate to Mr. Bulteel for “My dear Lord, I received 25,0001. It being absolutely ne your letter, which places us in a cessary to determine yesterday, I difficulty. It leaves Mr. Bulteel sent to Erlwood for my brother, free, and from what he has stated who came up and agreed, that una to me I must conclude any delay der the circumstances, we ought would lose him." to close the bargain, and that we He then added his apprehensions might rest assured of your appro- that the estate would not again bation. As Edmund wrote to you realise so large a price. Lord last night, it is unnecessary for me Abinger, in a letter in reply the
next day, sought to remove that ments of the counsel for the plainapprehension, and said, “ Mr. Bul- tiff were directed to support the teel is of course perfectly free.” proposition, that Mr. Benjamin
The following day Mr. Currey Currey was authorised to act as wrote to Lord Abinger as fol- the agent of his co-trustee, Lord lows.
Abinger, so that the latter was bound by the agreement.
The " 30th July. letter of Lord Abinger, dated the “ Mr. Bulteel met me this 23rd of July, was relied upon as morning, according to his appoint- conferring this authority, and the ment, and as Edmund and my reserved bidding of 25,0001., formself were completely pledged to erly determined upon in the sale by the contract made with him, I auction, was also adverted to as could not refuse to sign the agree. authorising a sale at that price. ment, he requiring me to do so Mr. L. Wigram and Mr. Kenin fulfilment of that pledge, but Iyon, for Sir Edmund Currey, at the same time told him the said, that it appeared by his ancontents of your two last letters swer, and by the letters in evi. on the subject. It was impossible dence, that it was not the fact for me to act otherwise, after all that he had stated to Mr. Benjathat has passed between him, Ed. min Currey that he would answer mund, and myself.
for Lord Abinger's concurrence in “ Yours faithfully, the sale; that, on the contrary, he
« B. CURREY.” had said that he could answer for no The contract, as intimated in one but himself. They stated that the letter of Mr. Currey, was ac Sir Edmund Currey was willing cordingly signed. The transac to concur in whatever was right, tions were followed by a very vo and the party in this suit who luminous correspondence ; Lord should prove to be in the wrong, Abinger insisting that as trustee must pay the costs incurred by he was bound to accept only the Sir Edmund Currey. highest price which could be had The Solicitor-General, Mr. Simpfor the estate. Mr. Bulteel insiste kinson, and Mr. Elmsley, appeared ing upon his purchase~Mr. Ben- for Lord Abinger. jamin Currey stating his opinion The Solicitor-General said, that that Mr. Bulteel was entitled to the suit had been instituted with. insist upon it-and Sir Edmund out any expectation of obtaining a Currey rather concurring with decree for specific performance ; Lord 'Abinger, that the highest that the object had been to force price ought to be obtained. The Lord Abinger into performance of bill was at length filed by Mr. the contract by the threat of a Bulteel for specific performance of suit, and the insinuation of imthe contract of sale.
proper motives of partiality toSir T. Wilde, Mr. Coleridge, wards his son. There was no preand Mr. Malins appeared for the tence for considering the letter of plaintiff. There was no ques- the 23rd of July as an authority tion that where there were several to sell to Mr. Bulteel. It merely trustees to a sale, the concurrence said that, “ considering my conof all the trustees was necessary to nexion with the proposed buyer, a binding contract. The argu. so far as he is concerned, I shall
take no steps to assist him in the “My dear Sir, -Having heard purchase.” It was no abdication that my son has made some proof his trust. He was bound to posal to you and Edmund about require the highest price, and to the Rapley estate, I write to apsell to the highest bidder, whoever prize you that it is exclusively his that person might be. The con. own affair, and has been his own temporary letters showed that Mr.
doing. He will have no assistance Currey did not consider himself from me in the matter, nor shall the agent of Lord Abinger, and it I take any interest directly or inwas not on that foundation that directly in it. Indeed I think I the suit was originally instituted. ought not to give any opinion on The contract was repudiated before it, and shall decline doing so. 1 it was signed on the 30th of July. presume his object is in a great Mr. Bulteel took the contract of measure to gratify Edmund, which two trustees, knowing the sale was I hope he may be able to do withrepudiated by the third, and he
out any loss to himself. must be responsible for the costs
“ Yours truly, of the suit, instituted without any
“ A BINGER. foundation.
“I hope to be in town on the To-day (March 23rd), Vice- 3rd of August.” chancellor Sir I. Wigram gave It was not possible to read that judgment-and after having gone letter in connexion with the cirthrough the evidence at great cumstances, and to understand it as length recapitulated the facts of intended to supersede the arrangethe case as follows:-"Now the ment for securing the benefit of present circumstances were these : competition among private bidders.
The sale of the estate had Whether the letter would have been the business of all the authorised Mr. Currey to sell to trustees from 1835 until 1838. Mr. Scarlett, without first giving Their object had been to obtain Lord Abinger the opportunity of the best price; they had declined putting a veto upon the contract to fix any price. When they had whether Lord Abinger was right a bidding from one party, they in saying, that the import of the carried it to other bidders, tu see letter with reference to his duty as whether, by this species of com a trustee left him a veto even upon petition, the price could be im a contract with Mr. Scarlett-are proved, and this principle was questions which might admit of aruniformly acted upon, except in gument. But that letter could not this single instance out of which be read as giving any authority to this litigation arose. Nothing but sell the estate, even to Mr. Scarthe consent of all the trustees lett, except he was the highest would justify a departure from bidder, at a price which the other this mode of dealing. In this state trustees should think sufficient. If of things Lord Abinger left Lon- that were Lord Abinger's meandon for the circuit, and while ing, he left the estate at least the upon the circuit he learnt that his benefit of that protection which son was a bidder for the Bagshot competition would insure. If he estate, and then he wrote the let. did not intend so to limit the au. ter of the 23rd July which was as thority to sell to his son, he must follows:
have intended, in favour to his son
alone, to withdraw that protection letter of the 23rd of July put Mr. from the estate which had there Scarlett and all other bidders on tofore been uniformly given. Even the same footing, at all events to with that protection, he (His Ho the extent of allowing no one to nour) inclined strongly to think, be the purchaser unless he were that Lord Abinger could not law. the highest bidder. If there were fully delegate to his co-trustees any difference, it would not arise an authority to sell the estate to until, by outbidding all others, he his son, without reserving to him- had acquired a right to call for self a veto upon the contract. The the approbation of the trustees. letter of the 23rd July could not But that state of things never reasonably be carried beyond this arose ; in fact, it was the unfortu
-that if Mr. Scarlett should prove nate omission of Mr. Currey and the best bidder for the estate, Lord Sir Edmund to offer the estate to Abinger would not interfere, or Mr. Scarlett, that had given rise give an opinion whether his bidding to the present question. It was should be accepted or not. The his genuine opinion, that throughletter could not be perverted into out the whole transaction, Mr. an authority to sell to Mr. Scar. Currey had acted a strictly honest lett, unless he were the best bidder, part; but he could not avoid thinknor, as far as language went, could ing that he had, unconsciously to it be construed as an authority to himself
, allowed the impressions sell to any one, except Mr. Scare made upon his mind in the later lett, upon those terins. Nor could stages of the case to influence his the motive which actuated Lord opinion of the effect of the former Abinger in writing that letter ap transactions. The bill must be ply to any one except his son. It dismissed. was argued, however, by the plaintiff, that a letter conferring such WESTERN CIRCUIT. an authority, not equally applying to other persons, would involve
DEVIZES. Lord Abinger in the difficulty of
August 19. having imposed terms upon a sale to others, to which his son was not subjected-a construction in Mr. Erle and Mr. Barstow concompatible with Lord Abinger's ducted the plaintiff's case, and Mr. sense of honour. This argument Crowder and Mr. Butt that of the was ingenious rather than sound. defendant. The argument, so far as it pro
This was an action to recover ceeded upon Lord Abinger's dis- compensation in damages for a claimer of interest, imputed to him breach of promise of marriage. motives very different from those The plaintiff was the daughter of by which the court was bound to a tradesman in Salisbury, and, it believe him actuated-namely, mo would seem, was rather an accomtives of duty to his cestui que trusts, plished individual. She was twentyand not of interest in favour of his eight years of age. The defendson. And this observation, if well ant was a merchant at Poole, the founded, met the whole argument, first cousin of the plaintiff, but and if not, the argument was disa sixty-eight summers had passed placed by the observation, that the over his head. He was a widower
ROOKE V. CONWAY.