• In the case of Davenport v Bishopp 1843 2 y c cc 451, it was held that the full amount of damages can be recovered for a breach of covenant by a person within marriage consideration even if other beneficiaries were volunteers.

Facts of the Case

  • A wife in a marriage settlement failed to settle her share in a breach of covenant.
  • The husband (C) sued the legal heir of his deceased wife, D, for the transfer of property from the heir into the marriage settlement.
  • D argued that whilst the property should go into the trust to give the husband a life interest, the volunteer beneficiaries which were the next of kin, should not be given any benefit whatsoever.

Issues in Davenport v Bishopp 1843 2 y c cc 451

  • Were the volunteers entitled to any share

Held by Court of Chancery

  • Damages recoverable are to be an estimate of C’s life interest and the interest of the next of kin.

Knight Bruce VC

  • It was held that, a trust, once constituted is constituted for all the beneficiaries, volunteers or not.
  • The trustee of the settlement may be thought to be a trustee of the covenant for the benefit of both C and the next of kin.
  • If there is only a volunteer beneficiary, the trustee could not sue successfully to constitute the trust.
  • “In Goring v. Nash, Lord Hardwicke observes: ” The strict measure which governs the Court in a question between persons who come to carry articles into execution and purchasers is not the rule of this Court [between families], for between families the Court have considered whether a superior or inferior equity arises on the part of the person who comes for a specific performance.” ” It is one consideration,” he adds, ” how far the Court will support agreements of this kind against relations in a family, and another against purchasers and creditors.I may further observe that, as far as S. Davenport himself is concerned, it is not disputed that a specific performance would be executed; but the Court, being in possession of the cause, will not divide the covenant, and decreeing a special per- formance in favour of the Plaintiff as to part, send him to law as to the residue. Lord Hardwicke, in the same case of Goring v. Nash, observes that, where marriage articles have been decreed at all, they have been carried into execution even as to collaterals, and not carried into execution in part only. I think, therefore, the judgment must be affirmed”. Pg 801