The Master, by his report of the 3rd of August 1848, certified that he found under the circumstances that John Gilbert was not liable to pay any part of the bond debt or interest, and that no proceedings in respect thereof should be taken against him, or William Gilbert, or R. W. Hyde. To this report the plaintiff took seven exceptions. Objections to the draft of the report had been overruled by the Master upon the ground that the acts and conduct of the testator necessarily gave time to William Gilbert the principal. The Solicitor General and Mr. Glasse, for the plaintiff, in support of the exceptions, relied upon the meagre nature of the evidence given of the testator's intention to relinquish the debt; and submitted that if the whole of it was strictly true, it would not have prevented the testator, nor would it now prevent his administratrix, from suing the obligor or his sureties upon the bond. Mr. Teed and Mr. Hallett, for the defendant John Gilbert, against the exceptions, argued upon the grounds taken by the Master in overruling the objections. Several authorities were cited on both sides, and the Vice Chancellor expressed an opinion that the exceptions must be allowed; but the case of Flower v. Marten (2) not having been commented upon, His Honour permitted the matter to be re-argued on a subsequent day by one counsel on each side. Feb. 26.—Mr. Teed, against the exceptions being allowed, cited the following cases: Wekett v. Raby, 2 Bro. P.C. 386 (Tomlins' edit.) Byrn v. Godfrey, 4 Ves. 6. Podmore v. Gunning, 7 Sim. 644; s.c. 5 Law J. Rep. (N.S.) Chanc. 266. Eden v. Smyth, 5 Ves. 341. Aston v. Pye, 5 Ves. 350, n. Flower v. Marten, 2 Myl. & Cr. 459; s.c. 6 Law J. Rep. (N.s.) Chanc. 167. Richards v. Syms, Barnard. 90; and 2 Eq. Ca. Abr. 617. Gilbert v. Wetherell, 2 Sim. & S. 254; s.c. 3 Law J. Rep. Chanc. 138. (2) 2 Myl. & Cr. 459; s. c. 6 Law J. Rep. (N.S.) Chanc. 167. The Solicitor General, contrà, cited- Fitch v. Sutton, 5 East, 230. March 9.-WIGRAM, V.C. said that the general question of William Gilbert's liability on the bond resolved itself into two; first, whether there was sufficient proof of the declaration of the testator's intention to abandon the bond; and, secondly, if that question was answered in the affirmative, what was the liability of the obligor? Assuming the first question, there could be no difficulty in holding that if the debt still remained at law, it must also remain in equity, unless under special circumstances. Intention of abandoning a debt was not sufficient to release it at law. The obligor in this case had no defence at law, and none in equity. In Wekett v. Raby the decision did not proceed upon the ground of release, but that it would have been fraud in the residuary legatee of the obligee to put the bond in suit. In Aston v. Pye a testator appeared to have made the following entry in his books in respect of a promissory note in question; "Henry James Pye pays no interest, nor shall I ever take the prinThe cipal unless greatly distressed." circumstances of that case brought it within the principle of Podmore v. Gunning, and the same principle as that to which the Lord Chancellor in Byrn v. Godfrey referred the decision of Wekett v. Raby. The Master of the Rolls sent the parties to law, and it was held to be against the maker of the note; but it did not appear from that case, nor from Eden v. Smyth or Byrn v. Godfrey, in both of which it was cited, that the debtor would have had any equity if the law should be against him. In Byrn v. Godfrey, a testator held a promissory note, for the payment of which he frequently told one of his executors that he never intended to call, and so stated to him the day before he died. The bill in that case, 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 (3) 6 Ves. 516. (4) Richards v. Syms. 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. and hand over to the plaintiff a cheque for 8561., remaining in the joint names of the said E. Futvoye and W. G. Bateson in the Bank of England, pursuant to the award of the arbitrator, to whom the matter in difference in this suit had been referred. On the 25th of June 1846 an order was made in this cause, by consent, referring all matters in difference between the parties to arbitration, and under an order of the arbitrator, dated the 5th of July 1847, the sum of 856l., with other monies in question in the cause, was paid into the Bank of England, in the names of W. G. Bateson and E. Futvoye, to be applied according to the award of the arbitrator. On the 19th of August 1848 the arbitrator made his award, and directed the sum of 8561. to be paid to the plaintiff. In pursuance of the award a cheque was prepared and signed by Mr. Bateson, but Mr. Futvoye declined to sign it, and the plaintiff then gave notice of the present application. Mr. Daniel, for Mr. Taunton, objected that the application could not be heard, as the award had not been made an order of Court. Mr. Turner referred to The Marquess of Ormond v. Kynnersley, Sibley v. Saffel, 18th of March 1812 s.c. 3 Law J. Rep. (N.s.) Chanc. 237. Wilkinson v. Page, 1 Hare, 276; s. c. 11 Law J. Rep. (N.s.) Chanc. 193. It appeared that the authorities were conflicting, but one of the Registrars did not consider that the practice required the award to be made an order of Court. Mr. Daniel.-Before the award could be enforced it must be made an order of Court, so that a complaining party might have an opportunity of giving a cross notice of motion of his intention to dispute it. If it was not made an order of Court, there would be nothing for the Court to act upon, and there would be an anomaly in the pro ceedings. In Harvey v. Shelton (1) the award had been made an order of Court. At law, technically, the certificate of arbitration took the place of the verdict of the jury-Cromer v. Churt (2), Chuck v. Cremer (3). Mr. Follett appeared for E. Futvoye. Mr. Turner, in reply.-The award merely ascertained the agreement which the parties had come to under the order of the Court; the reference was only the means of obtaining the particulars of the agreement, but, when ascertained, they formed the order of the Court under the reference. In Harvey v. Shelton, the agreement to refer was made out of Court, and the award was made an order of Court by consent. April 4.-The MASTER OF THE ROLLS. -The questions at issue in this suit and all matters in difference between the parties were referred to arbitration under an order of this Court, and, upon a motion to enforce compliance with the award, a preliminary objection was taken, that it had not been made an order of Court, and four cases were referred to, in which the Court decided that it was unnecessary. In Sibley v. Saffel Lord Eldon enforced an award, made on an order taken by consent for a reference, without the award being made a rule of Court. In Haggett v. Welsh, Vice Chancellor Hart said, that where an order of reference was made by any Court, it was not necessary to give the Court authority under the award, either that the submission should be made a rule of Court, or that the award should be made a rule of Court. In The Marquess of Ormond v. Kynnersley, Sir John Leach recognized Sibley v. Saffel as an express authority that the Court would enforce an award made under an order of Court, without requiring that the award should first be made a rule of Court; and in Turner v. Turner, where the award was made on an order by consent to refer all matters in difference, Lord Lyndhurst, on a question being raised as to the necessity of making the award an order of Court, considered that it was not necessary. Now, in Sibley v. Saffel and Turner v. Turner the reference directed was of all matters in difference between the parties in the cause, and not a reference to arbitration by the parties themselves out of Court. The opinion of Vice Chancellor Hart was expressed in general terms, but Sir John Leach said that Sibley v. Saffel was an express authority upon the point. In the cases before the two Chancellors the reference was of all matters in difference between the parties in the cause; but in Salmon v. Osborn the motion was for payment of money out of Court; and this may have induced Sir John Leach to decide that the award should be made an order of Court. It does not appear that there is any other case bearing upon the point. I am therefore of opinion that the present motion may be sustained, though the award has not been made an order of Court. See Heming v. Swinnerton, 5 Hare, 350, and 1 C. P. Coop. 420; s. c. 16 Law J. Rep. (N.S.) Chanc. 287. In a bill against husband and wife, the husband, after sequestration executed for want of the answer of himself and wife, answered separately without leave of the Court; and then, upon motion with notice, and supported by affidavits that his wife lived apart from him and he had no controul over her, obtained an order to discharge the attachment and sequestration upon payment of the costs of his contempt, and that his wife should answer separately. On appeal by the plaintiff, the Lord Chancellor refused to discharge that order, on the ground that, as the plaintiff did not think fit to apply to take the irregular answer off the file, the defendant would be without any means of clearing his contempt, but the order was varied so as to enable the plaintiff to take up the process of contempt at the point where it left off, in case the answer should be found insufficient. The suit in this case was instituted against William Plomer and his wife, in NEW SERIES, XVIII.-CHANC. respect of a claim against the separate property of his wife. The bill was filed on the 13th of May 1848, and the husband was served with a subpoena, addressed to himself and his wife, requiring them to appear and answer the bill. On the 17th of May the husband entered an appearance for himself_alone, and on the 25th, the plaintiff entered an appearance for the wife. On the 8th of July an attachment issued against the husband for want of the answer of himself and his wife; on the 25th of November an order for a sequestration was obtained, and the writ of sequestration was executed on the 30th of December. On the 5th of January 1849 the defendant put in his separate answer without leave of the Court; and on the 15th of January moved, upon notice, before Vice Chancellor Knight Bruce, that the appearance which had been entered for the wife, the writ of attachment, and subsequent proceedings, might be discharged for irregularity; and that the husband might be at liberty to answer separately and apart from his wife; and that the plaintiff might not be at liberty to take any proceedings against the husband for want of appearance or answer by the wife. By the affidavit in support of the motion it appeared that the wife was living apart from her husband, and that he had no controul over her, and did not know her place of residence. The Vice Chancellor discharged the appearance entered for the wife, and the attachment and sequestration, without costs. without costs. On the 18th of January the Lord Chancellor, upon appeal, discharged the order of the Vice Chancellor, on the ground that the appearance entered for the wife, whether originally regular or not, was binding upon the husband by his conduct. On the 25th of January the husband again moved upon notice before Vice Chancellor Knight Bruce, that, having filed his answer, the writ of attachment for want of the answer of himself and his wife and the sequestration might be discharged upon payment of the costs of his contempt. The Vice Chancellor made an order to that effect, and referred it to the Master to tax the plaintiff his costs occasióned by the contempt of the defendant, the husband, and of that application, "in case the parties differed about the same"; 2 E As the He ought to have come to the Court stating the circumstances, and serving his wife with notice of the application, that he might put in his own answer, and that his wife might answer separately. case stands, the plaintiff could not regularly proceed against the wife separately-Garey v. Whittingham (2). Then the order of the Vice Chancellor is wrong in discharging the process of contempt; for, if the answer is insufficient, the plaintiff ought to have the power of taking up the proceedings at the point where they left off, and not to be compelled to begin de novo-24th Order of April 1828 (3). [The LORD CHANCELLOR.-The defendant was clearly wrong in filing his separate answer without leave; but you have adopted that wrong by not applying to take it off the file.] tunity of moving to take the defendant's answer off the file; but this offer was declined. case. The LORD CHANCELLOR.-The defendant has been altogether irregular in his proceedings. The suit in this case was against husband and wife; and if it is true that the defendant could not procure his wife to join with him in his answer, his obvious course was to apply to the Court for leave to answer separately. Instead of that, he waits till sequestration is executed, and then puts in his separate answer without leave but having done that, it is quite obvious that the order now asked would place the defendant in a position from which he would have no means of escaping. Gee v. Cottle has no application to the present There the answer was irregularly filed, and a motion was made to take the answer off the file, and the answer being ordered to be taken off the file, I discharged the order for the release of the prisoner, which had proceeded upon the footing of that answer being regular. Here the question is, whether, under the circumstances, leaving the defendant in the position which he is in and subject to the sequestration, I am to discharge the order of the Vice Chancellor. I am of opinion that I ought not to do that. Still, as the defendant has occasioned expense by his irregularity, he ought to pay the costs. But it is said that some of the costs of the contempt, the sequestration for instance, will not be covered by the order of the Vice Chancellor. I do not think there is anything in that objection. It was then urged that the process of contempt ought not to be discharged until it appeared that the defendant's answer was a sufficient one. By my order, the plaintiff is to be at liberty, in case the answer be found insufficient, to take up the process of contempt where it left off; and the defendant undertaking to pay the costs of the sequestration, dismiss the appeal. The order of the Vice Chancellor to be varied as to taxation of costs by omitting the words "in case the parties differ about the same." |