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at Doncaster. On the 2nd of August the plaintiff, a creditor of Gledhill's, applied to him for payment of his debt. Gledhill said, "There is the wool at Doncaster; go and sell that wool, pay Bradley the balance due to him on such wool, and keep the remainder yourself," or used words to that effect. Nothing was done so as legally to vest in the plaintiff the property

in the wool.

Gledhill died on the same day intestate. On the 4th of August the plaintiff informed John Gledhill, a brother, and subsequently one of the administrators of the deceased, of his intention to sell the wool, upon which the latter gave notice to Gardner not to part with it. On the 5th of August the plaintiff took the wool forcibly out of Gardner's possession, sold it, and applied the proceeds as he had been directed.

Gardner subsequently, at the instigation of Gledhill's representatives, commenced an action of trover for the wool, claiming himself no lien for wharfinger's charges or expenses.

The plaintiff then filed the present bill against Gardner and the representatives of Joseph Gledhill, praying that it might be declared that in Equity he was entitled to the wool and the proceeds of the sale thereof, and for an injunction to restrain the defendant from proceeding with his action at law.

The suit now came on to be heard.

Malins, Q.C., and Nalder, were for the plaintiff. Bacon, Q.C. (C. T. Simpson with him), submitted that the plaintiff had only a power to sell the wool, which was determined by the death of Joseph

Gledhill,

Lepard v. Vernon, 2 V. & B. 51.

The rule at Common Law was the same,

Watson v. King, 4 Camp. 272.

STUART, V.-C., said, that if the words imputed to the deceased had been put in writing, they would have created a valid equitable assignment of the wool; and there was no statute which required an assignment of chattels to be in writing.

The case of Lepard v. Vernon, to which he had been referred, was distinguishable. What was there decided was simply this, that a bare power of attorney to receive a debt, which had determined by the death of the donor, could not be set up by means of a parol declaration of trust simultaneously made to the donee of the power. If, however, the declaration of trust had been contained in the instrument itself, he thought that Sir W. Grant would have held that the debt passed, and the right of the person to whom the power was given would have prevailed.

His Honour held in the present case, though with some hesitation, that in Equity the property in the wool passed to the plaintiff by virtue of the transaction of the 2nd of August; and, accordingly, made a declaration, and granted an injunction in the terms of the prayer in the bill.

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Practice-Injunction-25 & 26 Vict. c. 42.

The Court is not compelled by the Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42), to take upon itself the decision of a question which is involved in a pending action at Law, even though there should be matter open between the parties which can only be decided in a Court of Equity.

This was a motion for an injunction to restrain a pending action at Law. This suit arose out of a speculation in horse-dealing, which had been entered into by the plaintiff and defendant in the latter part of 1862, the plaintiff finding the money, and the defendant buying and selling the horses, and generally managing the concern. The profits were to be divided equally, but no written agreement was entered into. The plaintiff became dissatisfied with the conduct of the defendant, whom he insisted on treating as his agent in the transactions in question, and removed certain horses, which had been purchased by the defendant, from the stables where they were kept. The defendant thereupon brought an action of trover against the plaintiff for the value of the horses, which he claimed as his own. He alleged that the money had been lent to him at a fluctuating rate of interest. Issue had been joined in the action, and notice of trial given.

The plaintiff then filed his bill, praying for an account and an injunction, and that, if necessary, such issue might be directed for trying the question raised in the action as the Court should direct.

The suit now came on upon a motion for an injunction. The question before the Court was, whether, under the provisions of the Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42), the Court must decide the question raised in the action at Law.

The 1st section of that Act provides, that "In all cases in which any relief or remedy within the jurisdiction of the said Courts of Chancery respectively is or shall be sought in any cause or matter instituted or pending in either of the said Courts, and whether the title to such relief or remedy be or be not incident to or dependent upon a legal right, every question of law or fact cognisable in a Court of Common Law, on the determination of which the title to such relief or remedy depends, shall be determined by or before the

same Court."

Malins, Q.C., and Chisholm Batten, in support of the motion, argued, that it was clear, even upon the defendant's showing, that accounts must be taken between the parties, that such accounts could not be taken without determining the question of the ownership of the horses, and that the ownership of the horses was a question of fact, upon which the plaintiff's title to equitable relief depended; and that every question between the parties could be decided by that

Court, but that all the questions could not be decided estates were subject to various mortgages or judg in the action. ments to a large amount; and after further reciting that it had been arranged between Thomas Mostyn and

Bacon, Q.C., and Wellington Cooper, for the defen- the majority of the creditors, that Thomas Mostyn should dant, referred to,

Baylis v. Watkins, Re Hooper, 1 N. R. 115.

HIS HONOUR said, that he could find nothing in the Act which authorised the Court to transfer to itself an action actually pending in a Court of Law. Minute.-Injunction refused.

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Debtor and Creditor-Composition Deed by Stranger-Time, whether of Essence of Contract-Creditors, whether entitled to NoticeWaiver of actual Execution.

A deed by which T. M. proposed to effect a composition with his father's and grandfather's creditors, contained a proviso, that no creditor who should not exccute within six months should be allowed to come in under any rule of Equity or otherwise, followed by a power to the trustees, with the consent of T. M. and of certain named persons, to extend the time for executing, or to admit any particular creditors to the benefit of the

deed:

Held, that time was of the essence of the contract; that the creditors were not entitled to any notice of the deed; and that as against the creditors executing neither

T. M. nor the trustees could waive the actual execution of the deed within the limited period.

Where a debtor offers a composition to his creditors, the presumption is against time being of the essence: secus where the offer is made by a stranger.

This was the hearing of a summons adjourned from Chambers, the question being, whether certain creditors of the late and present Lords Mostyn were entitled to share in the benefits of a certain trust-deed, dated the 30th of May, 1854.

By this deed, which was expressed to be made between such of the creditors of the late and present Lords Mostyn as should execute it, of the first part; the members of a committee representing the creditors, of the second part; three trustees, of the third part; Lord Mostyn, of the fourth part; and the Hon. Thomas Mostyn, the eldest son of the present and the grandson of the late Lord Mostyn, of the fifth part; after recitals, showing that the late and present Lords Mostyn were, at the death of the former, indebted to various persons on judgment, specialty, and simple contract debts, to a large amount, that Thomas Mostyn had purchased or otherwise become possessed of considerable estates, some of which had previously belonged to the late and present lords, or one of them, as tenants in fee or for life, and that nearly all these

secure to the creditors a composition of 6s. 8d. in the pound, and that the creditors should assign their respective debts to a trustee for Thomas Mostyn, it was witnessed that Thomas Mostyn covenanted that he would as early as practicable proceed to raise by sale or mortgage of the said estates such sum of money as should be sufficient to pay and satisfy all such creditors as should execute this deed within six calendar months from the date thereof, a composition of 68. 8d. in the pound, on their respective debts, with interest at 4 per cent., from the 17th of February, 1853, and also as should be sufficiert to answer the trusts therein

after declared, other than the trusts for Thomas Mostyn, and would pay over this sum to the trustees.

The deed gave Thomas Mostyn for a limited period the absolute discretion as to the mode of raising the sum required; but in case it should not be paid within the period limited, which the trustees and committee had power to extend, and also in case Thomas Mostyn should die before the payment, the trustees were to raise the such sum by a sale or mortgage of the estates.

The moneys received by the trustees were to be applied-1st, in reimbursing to the trustees and members of the committee their respective costs, &c., incurred, and to be incurred, "in procuring the execution of this deed by the judgment, specialty, and simple contract creditors intended to be benefited thereby;" 2nd, in paying the costs, &c., of executing the trusts; and 3rd, in paying the above-mentioned composition,

with interest.

The deed contained a proviso, that no creditor who should not have executed within the said period of six calendar months should be allowed to come in, under, or execute, or be admitted to the benefit of the same, except with such consent as next thereinafter mentioned, upon any rule of Equity or otherwise: provided, nevertheless, that the trustees or trustee (with the consent of Thomas Mostyn and of a majority of the committee) might extend the period for creditors executing the deed, or admit any particular creditor or creditors to the benefit thereof.

And the deed declared, that all moneys which should come to the hands of the trustees, and should not be required for the purposes aforesaid, should be held in trust for Thomas Mostyn.

The deed also contained covenants by the creditors, that upon receiving their respective compositions, they would assign their respective debts to a trustee for Thomas Mostyn; and that they would not, at any time after executing the deed, take any proceedings either against the representatives of the late Lord Mostyn or against the present Lord Mostyn, or against Thomas Mostyn, or any other proceedings for obtaining payment of their respective debts.

By an indenture, dated the 9th of August, 1856,

the trustees, with the consent of Thomas Mostyn and of the surviving members of the committee, extended the period for creditors executing the trust deed to the expiration of six calendar months from that date.

Thomas Mostyn died in May, 1861, and in February, 1862, the trustees of the deed of 1854 instituted this suit against the trustees of Thomas Mostyn's will as defendants, seeking to have the trusts of the deed carried into execution.

By the decree made upon the hearing of the suit, an inquiry was directed, what persons were entitled to the benefit of the trust deed. It appeared, upon prosecuting the inquiry, that many creditors had not executed the deed within the limited time, who now, however, claimed to have the benefit thereof. grounds on which such claims were in each case rested sufficiently appear from the arguments of the counsel and from the judgment.

The

Sir H. Cairns, Q. C., and Speed, for the 'trustees of Thomas Mostyn's will, contended that all creditors who had not executed the deed within the time limited must be excluded. There was no analogy between the present case and that of an arrangement deed between a debtor and his creditors. Thomas Mostyn was a

stranger who, admitting no liability on his own part, made an ex gratiâ offer to certain definite classes of persons to pay out of his own property a certain portion of their demands against two other persons,

Emmet v. Dewhurst, 3 Mac. & G. 587.

Kenyon, Q.C., and Fry, for a creditor, who had executed the deed within the appointed time, objected to the admission of the other creditors, as the trust funds might prove insufficient to pay the compositions on the total amount of the debts of the creditors who had executed.

Daniel, Q.C., and Rawlinson, for a bond creditor, who had not been properly required to execute the deed, contended that the provision made for the costs of procuring the execution of the deed showed that the trustees were to take active steps to procure the

creditors to execute.

J. N. Higgins and E. E. Kay, for different judgment creditors of the present Lord Mostyn, contended that, as regarded their clients, the deed was not voluntary. Their judgments were charges upon so much of Thomas Mostyn's property as had come to him from his father, and in particular upon estates of considerable value, of which Lord Mostyn had been tenant for life; and the trust deed contained a covenant by the creditors not to sue. Thomas Mostyn's solicitor had held out to them hopes of a special arrangement of their claims, and this had prevented them from either sueing on their judgments or executing the deed. They ought, therefore, to be considered as having impliedly acquiesced in the deed,

Nicholson v. Tutin, 2 K. & J. 18;

Whitmore v. Turquand, 1 J. & H. 445; 3 De G.

F. & J. 112.

[The Vice-Chancellor referred to the case of Cossett v. Radford (not reported), in which he had dismissed the bill of a creditor who claimed to execute a deed of arrangement after the period agreed upon had elapsed.]

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In Emmet v. Dewhurst (loc. cit.) the agent's authority was not proved; here the representations had been made by Thomas Mostyn's solicitor.

No effect could be given to the declaration excluding the operation of any rule of Equity,

Scott v. Avery, 5 H. of L. Ca. 811.

Osborne Morgan, for Miss Warningham, a bond creditor of Lord Mostyn, who had agreed to execute the deed when required, and had, within the period limited for execution, received payments from the agents of Thomas Mostyn on the footing of the deed, contended that those payments raised a special equity in favour of his client, who ought to be treated as if she had actually executed the instrument,

Field v. Lord Donoughmore, 1 Dru. & W. 227;
Biron v. Mount, 24 Beav. 642.

Jolliffe, for Rhodes, a creditor who had been assured by Thos. Mostyn's solicitor that she need not execute the deed until she received the composition, contended that his client also ought to be placed in the same position as if she had executed the deed.

Charles Hall, for the plaintiffs, the trustees of the deed.

Sir H. Cairns, in reply to Miss Warningham's and Rhodes's claims agreed that any equity which either of them might have against Thomas Mostyn's representatives must be made the subject of a separate suit.

WOOD, V.-C., said, that the claimants proceeded upon a false analogy between this deed and an ordinary composition deed. In dealing with an arrangement with a person's own creditors, the Court presumed an intention to include in the proposed terms all who might come in within a reasonable time, and time was therefore seldom accounted of the essence of the deed. But here Thomas Mostyn, the covenantor, was a stranger, under no obligation to pay any of his father's or grandfather's creditors. It had been argued that he had an interest in respect of his father's life estate, which had been conveyed to him; but the deed did not charge that life estate, nor, indeed, any particular property whatever, but simply stipulated that certain proportionate sums should be raised,—it mattered not from what source, and be paid to those creditors who should fulfil certain conditions. tion could only be, what was the extent of Thomas Mostyn's liability under his legal covenant? In the absence of any special equity, the Court could not assist creditors who had not complied with the provisions of the deed. To allow their claims would, in

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effect, be to create a fresh charge upon Thomas Mostyn's estate, and to make a fresh covenant for him. It had been urged that the claimants sought to fix a liability in their favour, not upon Thomas Mostyn's estate, but only upon any fund within the control of the trustees of the deed. But this came to the same thing; for if the fund were only sufficient to satisfy the creditors who had complied with the conditions, they could not be made to abate their claims in favour of other creditors who had not complied with them; and, on the other hand, if there should turn out to be a surplus, it must be considered as having been raised by mistake, and would, therefore, fall back into the covenantor's estate. The only other question was, had any of the claimants established any special equity in their favour. Some of them sought to found such an equity on the omission to give them notice of the deed, but the covenantor was not bound to give them notice. They also argued that in arrangements of this kind time was not of the essence, but in this deed time was expressly made of the essence, the covenantor's great object being to know at once how much he would have to pay. Others, judgment and specialty creditors, set up a case of fraud on the ground that they had been induced to delay either executing the deed or proceeding on their securities through hopes of favourable and special terms held out to them by the covenantor's solicitor. But this was a risk which they had encoun

tered voluntarily. Two of the claims stood upon stronger grounds, viz., those of Miss Warningham and of Rhodes. The circumstance of actual payments having been made under the deed or of an offer to execute the deed having been waived by the covenantor's solicitor, coupled with the existence of a fund before the Court, might, under certain circumstances, have constituted an approach to a special equity in favour of the creditors, who had received, the payments or made the offer. But as the time could not be extended without the consent of the committee of creditors, and as, whatever might be the case as to the trustees, the consent of the committee had not been obtained, the claims of Miss Warningham and Rhodes could not be allowed to the prejudice of the creditors who had actually executed; but the order would be without prejudice to any application which they might make by bill, petition, or otherwise, to participate in any surplus which might remain after the claims of the creditors, who had executed, had been satisfied.

which related to the same matters, he filed, under 15 & 16 Vict. c. 86, s. 19, a concise statement, and interrogatories for the examination of the plaintiff in that suit, who had been a defendant in the other two suits.

An order, allowing the plaintiff in the first suit to defer answering till the defendant should have paid the costs due from him, was discharged.

This was a motion to discharge, or vary an order, made in Chambers by the Chief Clerk, in the suit of Fry v. Ernest.

The suit of Fry v. Ernest was to foreclose the defendant Ernest, and was instituted in October, 1862. In December, 1862, Ernest filed his bill against the plaintiff and others, in the cross suit of Ernest v. Partridge (reported, 1 N. R. 425), praying, among other things, that the mortgage securities belonging to Fry, the plaintiff in Fry v. Ernest, might be set aside. But the bill in Ernest v. Partridge was demurred to for multifariousness, and the demurrer allowed with costs. On the 11th of March, 1863, Ernest instituted a fresh suit, Ernest v. Blencowe, to set aside the same

securities; to which suit he made Fry a defendant, but, before the defendants in that suit had answered, Chambers into Court), made an order, on the 25th of his Honour (the matter having been adjourned from May, 1863, staying further proceedings in the suit till Ernest should have paid the costs in Ernest v. ParErnest had put in his answer to the plaintiff's bill, tridge. Meantime, viz., on the 6th of March, 1863, in the original suit of Fry v. Ernest, and under the 15 & 16 Vict. c. 86, s. 19, had filed a concise statement and interrogatories for the examination of the plaintiff.

On the 9th of June, 1863, the plaintiff obtained, in Chambers, an order to have a month for the time of the defendant's payment of the costs in answering these interrogatories, to be reckoned from Ernest v. Partridge.

Roll, Q.C., and G. R. Harding, for the defendant, argued that the defendant ought not to be prevented, in consequence of default in paying costs incurred in another suit, from obtaining from the plaintiff the discovery whereby only he could defend himself; that the Court would not hinder even a person in contempt from obtaining such a discovery.

Giffard, Q.C., and Cracknall, in support of the order, urged that the concise statement and interroga tories filed by Ernest had the same object as a bill of discovery; and that the interrogatories were to the same effect as those which the plaintiff had been required to answer in the suit of Ernest v. Blencowe, which had been stayed. They contended that Ernest could file neither a bill for discovery nor one for relief, Practice-Unpaid Costs-15 & 16 Vict. c. 86, so long as the costs in Ernest v. Partridge remained

Wood, V.-C. 12 Nov. 1863.

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FRY. ERNEST.

S: 19.

A suit had been ordered to be stayed till the plaintiff is it should have paid costs in a cross suit previously stituted by him. As defendant in the earlier suit,

unpaid.

WOOD, V.-C., said that the Court would not refuse the defendant liberty to defend himself in accordance with the provisions of the Act. The materiality

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The company were authorised, by their Acts, to raise 200,000l. and 174,000l. capital, of which 137,2847. 13s. 6d. had been raised; and to borrow 60,000l., and 58,0007., the whole of which former sum had been borrowed, but none of the latter. The amount of the bonds far exceeded 58,0007.

company paid for the execution of its works a much larger sum than would have been paid had the payment been made in money instead of these bonds; and the property of the company, and of the shareholders on which the whole of the paid-up capital of the company and the 60,000l. so borrowed, became charged with a debt of many thousands of pounds wholly unauthorised to be created."

"11. The form of the said bonds is as follows:The Carmarthen and Cardigan Railway Company, No. Bond for 7. The Carmarthen and

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Cardigan Railway Company do hereby acknowledge that they stand indebted to the sum of

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of in 7. for money due and owing from the and the said com

said company to the said pany, for themselves, their successors, and assigns, hereby covenant with the said

upon

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his executors and administrators, to pay to him, his executors, 1. administrators, or assigns, the said sum of the rate of 51. per cent. per annum from the date with interest thereon at the day of hereof until payment, such interest to be payable half-yearly upon the day of and the day of in each year. Given under the common seal of the said company, the

18

(L.S.)

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day of ""OWEN BOWEN, Secretary.

"N. B.-On production of this bond, the interest, when due, will be paid at the offices of the company, No. 4, Chatham-place, London, E.C.' ”

The bill then alleged that, in 1862, the company The material allegations of the bill were contained had obtained a fresh Act, enabling them to raise fresh in the following paragraphs :

"7. The sum so received on account of capital and for loans was wholly insufficient for carrying into effect the objects of the said company, and having spent the whole of the paid-up capital, and the amount so raised by loans, and being unable to obtain any more money on account of the subscribed capital, the directors of the company, the defendants, other than the said H. A. Holden, devised a scheme for evading the restriction contamed in the said Act as to the amount of money the company was empowered to borrow, and, in pursuance of such scheme, they proposed to the contractors for the construction of the railway, to pay them the amount of their contracts for the work to be done by bonds or obligations of the said company, payable at certain specified deferred periods, with interest half-yearly; in the mean time such bonds to be issued in such manner, and for such amounts, as the contractors might desire."

capital, and conferring upon them extended borrowing powers, and proceeded as follows :—

"15. Notwithstanding the powers conferred by the last-mentioned Act upon the company for the raising of additional capital to the amount of 174,0007., no steps whatever had been taken for that purpose, but in lieu thereof the defendants, other than the defendant H. A. Holden, are proceeding to carry out the works authorised by their several Acts of Parliament by means of bonds as before mentioned."

"16. The bonds so issued would appear to be securities within the meaning of the borrowing powers contained in the said Acts of Parliament, and there is nothing apparent thereon by which the public can know whether such bonds form part of the money, authorised by the said Acts to be borrowed, or under what authority the said bonds are created.”

"19. The plaintiff has also lately discovered, as the fact is, that, in the month of January, 1862, the

"8. The contractors, before agreeing to accept pay-defendants, other than the defendant H. A. Holden, ment in this manner, ascertained as the fact was, that these bonds could only be negotiated at a discount of from 207. to 251. per cent., and made their contracts accordingly."

not having sufficient funds to make the deposit required by the Standing Orders of Parliament on making their application for the said Act" of 1862, "applied to an agent to raise money for them, and they "9. The effect of this arrangement was, that the did accordingly raise through the said agent between

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