Imatges de pàgina

The Master, by his report of the 3rd of

The Solicitor General, contrà, citedAugust 1848, certified that he found under the circumstances that John Gilbert was Samuell v. Howarth, 3 Mer. 272. not liable to pay any part of the bond debt Eyre v. Everett, 2 Russ. 381. or interest, and that no proceedings in Creighton v. - Rankin, 7 Cl. & F. 325, respect thereof should be taken against 346. him, or William Gilbert, or R. W. Hyde. Fitch v. Sutton, 5 East, 230. To this report the plaintiff took seven, Mackintosh v. Wyatt, 3 Hare, 562. exceptions. Objections to the draft of the Hollier v. Eyre, 9 Cl. & F. 1. report had been overruled by the Master upon the ground that the acts and conduct March 9.-WIGRAM, V.C. said that the of the testator necessarily gave time to general question of William Gilbert's William Gilbert the principal.

liability on the bond resolved itself into The Solicitor General and Mr. Glasse, two; first, whether there was sufficient for the plaintiff, in support of the excep- proof of the declaration of the testator's tions, relied upon the meagre nature of intention to abandon the bond; and, the evidence given of the testator's inten- secondly, if that question was answered tion to relinquish the debt; and submitted in the affirmative, what was the liability that if the whole of it was strictly true, it of the obligor? Assuming the first would not have prevented the testator, nor question, there could be no difficulty in would it now prevent his administratrix, holding that if the debt still remained at from suing the obligor or his sureties upon law, it must also remain in equity, unless the bond.

under special circumstances. Intention of Mr. Teed and Mr. Hallett, for the de- abandoning a debt was not sufficient to fendant John Gilbert, against the excep- release it at law. The obligor in this case tions, argued upon the grounds taken by had no defence at law, and none in equity. the Master in overruling the objections. In Wekett v. Raby the decision did not

Several authorities were cited on both proceed upon the ground of release, but sides, and the Vice Chancellor expressed an that it would have been fraud in the resiopinion that the exceptions must be allowed; duary legatee of the obligee to put the but the case of Flower v. Marten (2) not bond in suit. In Aston v. Pye a testator having been commented upon, His Honour appeared to have made the following entry permitted the matter to be re-argued on a in his books in respect of a promissory subsequent day by one counsel on each note in question ;“Henry James Pye pays side.

no interest, nor shall I ever take the prinFeb. 26.—Mr. Teed, against the excep

cipal unless greatly distressed.” The tions being allowed, cited the following

circumstances of that case brought it

within the principle of Podmore v. Guncases :

ning, and the same principle as that Wekett v. Raby, 2 Bro. P.C. 386 (Tom- to which the Lord Chancellor in Byrn v. lins' edit.)

Godfrey referred the decision of Wekett Byrn v. Godfrey, 4 Ves. 6.

v. Raby. The Master of the Rolls sent Podmore v. Gunning, 7 Sim. 644 ; s.c. the parties to law, and it was held to

5 Law J. Rep. (N.s.) Chanc. 266. be against the maker of the note; but it Eden v. Smyth, 5 Ves. 341.

did not appear from that case, nor from Aston v. Pye, 5 Ves. 350, n.

Eden v. Smyth or Byrn v. Godfrey, in Flower v. Marten, 2 Myl. & Cr. 459; both of which it was cited, that the debtor

s.c. 6 Law J. Rep.(n.s.) Chanc. 167. would have had any equity if the law Richards v. Syms, Barnard. 90; and should be against him. In Byrn v. God2 Eq. Ca. Abr. 617.

frey, a testator held a promissory note, Gilbert v. Wetherell, 2 Sim. & S. 254; for the payment of which he frequently s.c. 3 Law J. Rep. Chanc. 138. told one of his executors that he never

intended to call, and so stated to him the (2) 2 Myl. & Cr. 459 ; s. c. 6 Law J. Rep. (n.s.)

sep. (ns) day before he died. The bill in that case, Chanc. 167.

so far as it related to the cancelling of the

note, was dismissed; and it was held by Lord Loughborough, who referred to Wekett v. Raby and Richards v. Syms, that there was neither a release (which was very important) nor a legacy. In Eden v. Smyth, Lord Loughborough decided that the debt was gone. Perhaps he did then what would be questionable at the present time by going into inquiries as to the intention of the testator concerning his property; but it was not necessary to consider that point, for it was manifest from the judgment that Lord Loughborough considered the debt to be gone at law. Reeves v. Brymer (3) was a most important case. It seemed to have escaped the notice of counsel in the present argument. Nothing could be more explicit than the obligee's intention to discharge the obligor ; but Lord Alvanley, although he considered it to be a very hard case, and was desirous of doing all he could for the obligor, gave the executors of the obligee leave to bring an action. In the case cited from 2 Eq. Ca. Abr. (4), Lord Hardwicke held that the debt was gone at law. In that case, a creditor gave up the bond and mortgage deed upon which the debt was secured, and declared an intention to release the debt. That was very different from merely declaring an intention to forgive it; and Lord Hardwicke was reported to have said that the law was with the debtor. Gilbert v. Wetherell was not a very clear case, and depended entirely upon its peculiar circumstances. None of the foregoing cases were there cited, and it was the first which had been considered to decide that a simple declaration of the creditor was sufficient to destroy the debt, and to operate as an equitable release of it. But, in fact, it was not so held by Sir John Leach, who merely referred to the relation between the parties, and decided that, under the circumstances, the debt had been converted into an advancement by the father to the son.

The Vice Chancellor then remarked that Flower v. Marten was the only case which had caused him any doubt on the subject. It had been said that the observations of Lord Cottenham in that case indicated an opinion, that where a

creditor shewed an intention to treat the debt as a gift to the debtor, equity would not permit the debt to be enforced. If such had been the effect of his Lordship's judgment, his Honour would not have hesitated to follow it; but he did not understand it to have that effect. The abstract proposition was not before the Lord Chancellor, and was not decided by him. His judgment referred to Wekett v. Raby and Eden v. Smyth, and was founded upon peculiar circumstances, and the relation between the debtor and creditor. The present was the simple case of a creditor declaring an intention not to sue upon a bond. There was no evidence of the alleged erasure in his private ledger, and even if that fact could be proved upon inquiry, the debtor would still remain bound. The proposition in this case was that if this obligor had no defence at law, he had none in equity, at least not to the extent found by the Master ; for if anything could be discovered in Wekett v. Raby against the equity of the residuary tenant for life in this instance, it would not extend beyond her claim for the interest on the bond debt during her life. The legal question might, if required, be tried by an action ; otherwise the exceptions must be allowed, and the Master directed to review his report.

Feb. 28; (

Mar. 29; (
April 4. )

Parties to a suit agreed under an order of Court to submit all matters in difference to arbitration, under which an award was made. Upon a motion to enforce it, an objection was taken that the Court had no jurisdiction, unless the award was made an order of Court :-Held, that the Court had jurisdiction to sustain such application, though the award had not been made an order of Court.

Mr. Turner and Mr. Prior, on behalf of the plaintiff, moved that Edward Futvoye. might, within two days after service of the order to be made on this application, sign

(3) 6 Ves. 516. (4) Richards v. Syms.

and hand over to the plaintiff a cheque for ceedings. In Harvey v. Shelton (1) the 8561., remaining in the joint names of the award had been made an order of Court. said E. Futvoye and W. G. Bateson in At law, technically, the certificate of arbithe Bank of England, pursuant to the tration took the place of the verdict of the award of the arbitrator, to whom the matter jury-Cromer v. Churt(2), Chuck v. Cremer in difference in this suit had been referred. (3).

On the 25th of June 1846 an order was Mr. Follett appeared for E. Futvoye. made in this cause, by consent, referring Mr. Turner, in reply.-The award merely all matters in difference between the par- ascertained the agreement which the parties ties to arbitration, and under an order of had come to under the order of the Court; the arbitrator, dated the 5th of July 1847, the reference was only the means of obthe sum of 8561., with other monies in taining the particulars of the agreement, question in the cause, was paid into the but, when ascertained, they formed the Bank of England, in the names of W. G. order of the Court under the reference. In Bateson and E. Futvoye, to be applied Harvey v. Shelton, the agreement to refer according to the award of the arbitrator. was made out of Court, and the award was

On the 19th of August 1848 the arbi- made an order of Court by consent. trator made his award, and directed the sum of 8561. to be paid to the plaintiff. April 4.-The MASTER OF THE ROLLS:

In pursuance of the award a cheque was -The questions at issue in this suit and prepared and signed by Mr. Bateson, but all matters in difference between the parties Mr. Futvoye declined to sign it, and the were referred to arbitration under an order plaintiff then gave notice of the present of this Court, and, upon a motion to enapplication.

force compliance with the award, a pre. Mr. Daniel, for Mr. Taunton, objected liminary objection was taken, that it had that the application could not be heard, as not been made an order of Court, and four the award had not been made an order of cases were referred to, in which the Court Court.

decided that it was unnecessary. In Sibley

v. Saffel Lord Eldon enforced an award, Mr. Turner referred to

made on an order taken by consent for a The Marquess of Ormond v. Kynnersley, reference, without the award being made

2 Sim. & S. 15; s. c. 2 Law J. Rep. a rule of Court. In Haggett v. Welsh, Chanc. 178.

Vice Chancellor Hart said, that where an Sibley v. Saffel, 18th of March 1812 order of reference was made by any Court, and 7th of March 1814.

it was not necessary to give the Court Haggett v. Welsh, 1 Sim. 134.

authority under the award, either that the Turner v. Turner, 3 Russ. 494, as submission should be made a rule of Court,

mentioned in 1 C. P. Coop. 421, n. or that the award should be made a rule Salmon v. Osborn, 3 Myl. & K. 429; of Court. In The Marquess of Ormond v.

s.c. 3 Law J. Rep. (n.s.) Chanc. 237. Kynnersley, Sir John Leach recognized Wilkinson v. Page, 1 Hare, 276 ; s. c. Sibley v. Saffel as an express authority

11 Law J. Rep. (N.s.) Chanc. 193. that the Court would enforce an award It appeared that the authorities were made under an order of Court, without reconflicting, but one of the Registrars did quiring that the award should first be made not consider that the practice required the a rule of Court; and in Turner v. Turner, award to be made an order of Court. where the award was made on an order by

consent to refer all matters in difference, Mr. Daniel. Before the award could Lord Lyndhurst, on a question being raised be enforced it must be made an order of as to the necessity of making the award an Court, so that a complaining party might have an opportunity of giving a cross notice (1) 7 Beav. 465; s.c. 13 Law J. Rep. (N.s.) Chanc. of motion of his intention to dispute it. If 466. it was not made an order of Court, there

(2) 15 Mee. & W.310; s. c. 15 Law J. Rep. (N.s.) would be nothing for the Court to act upon,

Exch. 263.

(3) 2 Ph. 477 ; s. c. 17 Law J. Rep. (N.s.) Chanc. and there would be an anomaly in the pro- 287.

order of Court, considered that it was not respect of a claim against the separate pronecessary. Now, in Sibley v. Saffel and perty of his wife. The bill was filed on

Turner v. Turner the reference directed the 13th of May 1848, and the husband was of all matters in difference between the was served with a subpæna, addressed to parties in the cause, and not a reference to himself and his wife, requiring them to arbitration by the parties themselves out appear and answer the bill. On the 17th of Court. The opinion of Vice Chancellor of May the husband entered an appearance Hart was expressed in general terms, but for himself alone, and on the 25th, the Sir John Leach said that Sibley v. Saffel plaintiff entered an appearance for the wife. was an express authority upon the point. On the 8th of July an attachment issued In the cases before the two Chancellors against the husband for want of the answer the reference was of all matters in difference of himself and his wife, on the 25th of between the parties in the cause; but in November an order for a sequestration was

Salmon v. Osborn the motion was for pay- obtained, and the writ of sequestration ment of money out of Court; and this may was executed on the 30th of December. have induced Sir John Leach to decide On the 5th of January 1849 the defendant that the award should be made an order of put in his separate answer without leave Court. It does not appear that there is of the Court; and on the 15th of January any other case bearing upon the point. I moved, upon notice, before Vice Chanam therefore of opinion that the present cellor Knight Bruce, that the appearance motion may be sustained, though the which had been entered for the wife, the award has not been made an order of Court. writ of attachment, and subsequent proSee Heming v. Swinnerton, 5 Hare, 350, and

ceedings, might be discharged for irre1 C. P. Coop. 420; s. C. 16 Law J. Rep. (n.s.)

gularity; and that the husband might be Chanc. 287.

at liberty to answer separately and apart from his wife ; and that the plaintiff might

not be at liberty to take any proceedings L.C.

against the husband for want of appearSTEELE V. PLOMER. Feb. 8. )

ance or answer by the wife. By the affi

davit in support of the motion it appeared Practice-Contempt.

that the wife was living apart from her In a bill against husband and wife, the husband, and that he had no controul husband, after sequestration executed for over her, and did not know her place want of the answer of himself and wife, an- of residence. The Vice Chancellor disswered separately without leave of the Court; charged the appearance entered for the and then, upon motion with notice, and sup wife, and the attachment and sequestration, ported by affidavits that his wife lived apart without costs. On the 18th of January from him and he had no controul over her, the Lord Chancellor, upon appeal, disobtained an order to discharge the attach- charged the order of the Vice Chancellor, ment and sequestration upon payment of the on the ground that the appearance entered costs of his contempl, and that his wife should for the wife, whether originally regular or answer separately.

not, was binding upon the husband by his On appeal by the plaintiff, the Lord Chan- conduct. On the 25th of January the cellor refused to discharge that order, on the husband again moved upon notice before ground that, as the plaintiff did not think fit Vice Chancellor Knight Bruce, that, having to apply to take the irregular answer off the filed his answer, the writ of attachment file, the defendant would be without any for want of the answer of himself and his means of clearing his contempt, but the order wife and the sequestration might be diswas varied so as to enable the plaintiff to charged upon payment of the costs of his take up the process of contempt at the point contempt. The Vice Chancellor made an where it left off, in case the answer should order to that effect, and referred it to the be found insufficient.

Master to tax the plaintiff his costs occa

sioned by the contempt of the defendant, The suit in this case was instituted the husband, and of that application, “ in against William Plomer and his wife, in case the parties differed about the same" ; NEW SERIES, XVIII.-CHANC.

2 C

and that the wife should be at liberty to tunity of moving to take the defendant's answer separately from her husband answer off the file ; but this offer was

The plaintiff now appealed from that declined. order.

The LORD CHANCELLOR.—The defendant Mr. James Parker and Mr. Elderton, for has been altogether irregular in his prothe plaintiff. — The defendant, being in ceedings. The suit in this case was against contempt for want of the answer of himself husband and wife ; and if it is true that and his wife, could not regularly put in his the defendant could not procure his wife to separate answer without leave of the Court join with him in his answer, his obvious - Gee v. Cottle (1).

course was to apply to the Court for leave [The Lord ChancELLOR.-In that case to answer separately. Instead of that, he the application was to take the answer off waits till sequestration is executed, and the file; here there is no such application. then puts in his separate answer without What course can the defendant pursue to leave : but having done that, it is quite set himself right?]

obvious that the order now asked would He ought to have come to the Court place the defendant in a position from which stating the circumstances, and serving his he would have no means of escaping. Gee wife with notice of the application, that he v. Cottle has no application to the present might put in his own answer, and that his case. There the answer was irregularly wife might answer separately. As the filed, and a motion was made to take the case stands, the plaintiff could not regularly answer off the file, and the answer being proceed against the wife separately-Garey ordered to be taken off the file, I discharged v. Whittingham (2). Then the order of the order for the release of the prisoner, the Vice Chancellor is wrong in discharging which had proceeded upon the footing of the process of contempt; for, if the answer that answer being regular. Here the quesis insufficient, the plaintiff ought to have tion is, whether, under the circumstances, the power of taking up the proceedings at leaving the defendant in the position which the point where they left off, and not to be he is in and subject to the sequestration, I compelled to begin de novo-24th Order am to discharge the order of the Vice of April 1828 (3).

Chancellor. I am of opinion that I ought [The LORD CHANCELLOR.-The defen- not to do that. Still, as the defendant has dant was clearly wrong in filing his separate occasioned expense by his irregularity, he answer without leave; but you have adopted ought to pay the costs. But it is said that that wrong by not applying to take it off some of the costs of the contempt, the the file.]

sequestration for instance, will not be Under the terms of the Vice Chancellor's covered by the order of the Vice Chancellor. order, it is extremely doubtful whether the I do not think there is anything in that plaintiff will be allowed the costs of seques- objection. It was then urged that the protration which has not been returned. The cess of contempt ought not to be discharged order is also wrong in directing the costs until it appeared that the defendant's answer to be taxed in case the parties differ about was a sufficient one. By my order, the the same. This form of order might throw plaintiff is to be at liberty, in case the anupon the plaintiff the whole costs of taxa- swer be found insufficient, to take up the tion-76th Order of April 1828 (4).

process of contempt where it left off ; and

the defendant undertaking to pay the costs Mr. James Russell and Mr. Lewin, for of the sequestration, dismiss the appeal. the husband, contrà, stated that the Vice The order of the Vice Chancellor to be Chancellor had offered to allow the motion varied as to taxation of costs by omitting to stand over to give the plaintiff an oppor- the words “in case the parties differ about

the same." (1) 3 Myl. & Cr. 180.

(2) 1 Sim. & S. 163; 1 Daniell's Chane. Pr. 209, 1st edit.

(3) Ord. Can. 15; 1 Law J. Rep. (N.s.) Chanc. 2. (4) Ord. Can. 28; 1 Law J. Rep. (N.s.) Chanc. 2.

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