It was admitted that he might have filed a Bill of Interpleader. The Case of Hide v. Petit, as reported in 1 Ch. Ca., turns upon the validity of the Award; and it is stated, totidem verbis, that the matter did not come in question. All the Cases cited, in Simmonds v. Lord Kinnaird, in favour of a Chose in Action being taken under a Sequestration, are answered by the opposite Counsel.

The object of a Sequestration is to drive the Defendant to put in an Answer speedily. Can any thing be so absurd as to hold that his Debts may be taken? Can a Sequestrator bring an Action for them? No; a Bill must be filed. Supposing the Claim is a litigated object then be answered? The intention of the process was to put the strong arm of the Court upon what was tangible, and could be taken at

one, how will the

once.

The Court cannot decide against Mr. Yallop, without overruling Fenton v. Lowther. In Simmonds v. Lord Kinnaird, the Lord Chancellor says: "I wish the process could go to the extent you desire." It is clear, therefore, that he was of opinion that he had no jurisdiction in that Case.

At all events, if Choses in Action are the subjects of a Sequestration, a Bill must be filed, and there is no Authority that they can be made available upon Motion. Fenton v. Lowther, and Simmonds v. Lord Kinnaird. If, in the latter Case, a Motion would have been sufficient, the Bill would have been demurrable upon that ground.

1827

JOHNSON

v.

CHIPPINDALL

and others.

1827.

JOHNSON

v.

CHIPPINDALL

and others.

As to the argument founded on Mr. Yallop having acquiesced in the Orders, he was ignorant, until he was informed by his Counsel, that the Court had no jurisdiction to make those Orders. His Letters are nothing more than an admission that the Order was binding upon him whilst it remained in force. He does not ask that the Money which he has paid into Court may be repaid to him.

The Vice-Chancellor, after stating the nature of the Suit and the Proceedings in it, and noticing that no notice of Motion had been given to discharge the Order of the 20th of February 1826, proceeded as follows:

When the Motions were argued before me, it was stated that a similar question had been discussed in Mallard v. Mallard (e); but it appeared to me that there was a material distinction between the two Cases. Because in Mallard v. Mallard there was, on the first application, a resistance made; but, in this Case, it appears, by the Letters, that there has been an acquiescence in the Jurisdiction, on the part of Mr. Yallop, which has continued for a length of time; and therefore I ought not now to permit him to withdraw from the Jurisdiction.

I find no instance in which the Court has compelled a third party to pay in a Chose in Action, without a Bill, where any resistance has been made by the Holder of the Chose in Action. The old Cases are collected in the Notes to Francklyn v. Colhoun; but in none of them does it appear that any resistance was made. In Pel

(e) Before Sir A. Hart, V. C. but not decided.

1827.

JOHNSON

v.

CHIPPINDALL

ham v. Duchess of Newcastle, Child, the Banker, probably consented to the Order. The old Cases, therefore, leave it in doubt whether the Court has jurisdiction to make the Order upon Motion. But, if it had been a clear point, one would not have found such a Bill filed as in the Case of Simmonds v. Lord Kinnaird; for that was filed to give effect to the Sequestration; and, if it had been competent to the Court to make the Order upon Motion, one can hardly think that such a Bill would have been filed. The Lord Chancellor too expressed it as his opinion, that such a Bill could not be supported, on the general ground. (His Honor here read the Judgment in Simmonds v. Lord Kinnaird.) It cannot, however, be said that the Cases that have been quoted prove that there is any settled jurisdiction in this Court to compel payment of the Chose in Action, upon mesne process. In Wharam v. Broughton (ƒ), Lord Hardwicke, C., says: "For the Writ of Sequestration does not require the Sequestrators to levy to the use of the Plaintiff; but only to detain and keep in their hands till the Sum is fully paid, the Contempts cleared, and the Court make further Order to the contrary. It is not of a great many years standing that the Court has ordered Goods to be sold to satisfy payment after a Decree; but it is very lately that the Court has ordered it for a collateral Contempt in proceeding before a Decree, which the Court now does in aid of its Proceedings." So that Lord Hardwicke shows that he considered, the application of Sequestration to mesne process, as a modern thing, and that the Sequestrators were only to keep what they had seized, in their hands, until the Contempt was cleared. The difficulty,

(f) 1 Vez. 184.

F

and others.

VOL. II.

1327.

JOHNSON

v.

CHIPPINDALL and others.

therefore, is, what are the Sequestrators to do with the
Chose in Action when the Contempt is cleared. Are they
to hand it over to the Creditor, or to return it to the
Debtor? There is the Form of the Order of Sequestra-
tion in Pope v. Ward (g). There the words "Personal
Estate" are used: but those words do not carry the
matter further than "goods and chattels," and are
mere amplification. In Angel v. Smith (h), what Lord
Eldon, C., says respecting this Writ, applies to Land.
Then we come to Francklyn v. Colhoun, where The Lord
Chancellor, speaking of this Process, uses this expres-
sion: "But a Chose in Action cannot be so taken :" and,
in the absence of authority more cogent than I have
referred to, this is sufficient to govern me. I observe
that, in Simmonds v. Lord Kinnaird, The Solicitor-General
says that Sequestrators claim for past Rents.
there is no possession of Land, except by taking the
Rents as they had or did become due, unless the effect
of the Process were to turn the Tenants out of posses-
sion; therefore that is not an Authority that a Seques-
trator can lay hold of a Chose in Action. And, as there
is no process at Common-law, except an Extent, to take
Debts, I should not say that I could, upon mere Mo-
tion, compel this Party to pay in the Chose in Action;
therefore I disclaim that Authority.

But

But, in this Case, there is matter which enables me to decide this point without reference to the Authorities. For, in the first place, the Motion of Mr. Yallop admits that the Order of the 20th of February 1826 is in full force and it is not consistent with that Order for Mr. Yallop to say that he ought not to be compelled

:

to pay in the Arrears of the Annuity. Besides, it
appears that a considerable Correspondence arose out
of the Proceedings on this Sequestration. On the 29th
of November 1826, Chippindall wrote to the Plaintiffs
Solicitors. (His Honor here read the passage in that
Letter, which is before inserted.) Mr. Yallop, in his
first letter (i), which was written after the Order of
February 1826, but before that of March 1826, says,
(here his Honor read that and the next Letter.) By
the expression" unreasonable demand," Yallop means
that he considered the Annuity exorbitant, having
regard to what preceded and followed the Grant. (His
Honor here read Mr. Chippindall's Letter of the 31st
of May 1827, and then proceeded). So that it is clear
that Chippindall and Yallop both considered that, as
between themselves and the Plaintiffs' Solicitors, there
was a right in the Plaintiffs' Solicitors to have what
was due.
This Correspondence went on for several
Months. But if Mr. Yallop had made resistance to the
Proceedings at first, the Plaintiffs' Solicitors might
have acted in a different manner from what they have
done. Inasmuch, therefore, as the Motion is made
under these circumstances, and does not seek to dis-
charge the Order of the 14th of February 1826, I must
make an Order according to the terms of the notice of
Motion of July, and no Order upon Mr. Yallop's
Motion.

The Plaintiffs' Motion granted, and Yallop's refused,
but no Costs given on either of them.

(2) The letter without date.

1827.

JOHNSON

v.

CHIPPINDALL

and others.