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at Doncaster. On the 2nd of August the plaintiff, a
CURLEWIS v. CARTER. his debt. Gledhill said, “There is the wool at Don
14 Nov. 1863. caster; go and sell that wool, pay Bradley the balance
Practice-Injunction-25 & 26 Vict. c. 42. due to him on such wool, and keep the remainder yourself,” or used words to that effect. Nothing was The Court is not compelled by the Chancery Reguladone so as legally to vest in the plaintiff the property tion Act, 1862 (25 & 26 Vict. c. 42), to take upon itself in the wool.
the decision of a question which is involved in a pending Gledhill died on the same day intestate. On the action at Lau, cven though there should be matter open 4th of August the plaintiff informed John Gledhill, a
between the parties which can only be decided in a Court brother, and subsequently one of the administrators of of Equity. the deceased, of his intention to sell the wool, upon This was a motion for an injunction to restrain a which the latter gave notice to Gardner not to part pending action at Law. This suit arose out of a speculawith it. On the 5th of August the plaintiff took the tion in horse-dealing, which had been entered into by wool forcibly out of Gardner's possession, sold it, and the plaintiff and defendant in the latter part of 1862, applied the proceeds as he had been directed.
the plaintiff finding the money, and the defendant Gardner subsequently, at the instigation of Gled. buying and selling the horses, and generally managing hill's representatives, commenced an action of trover the concern. The profits were to be divided equally, for the wool, claiming himself no lien for wharfinger's but no written agreement was entered into. The charges or expenses.
plaintiff became dissatisfied with the conduct of the The plaintiff then filed the present bill against defendant, whom he insisted on treating as his agent Gardner and the representatives of Joseph Gledhill, in the transactions in question, and removed certain praying that it might be declared that in Equity he horses, which had been purchased by the defendant, was entitled to the wool and the proceeds the sale from the stables where they were kept. The defenthereof, and for an injunction to restrain the defendant dant thereupon brought an action of trover against the from proceeding with his action at law.
plaintiff for the value of the horses, which he claimed The suit now came on to be heard.
as his own. He alleged that the money had been lent Malins, Q.C., and Nalder, were for the plaintiff.
to him at a fluctuating rate of interest. Issue had
been joined in the action, and notice of trial given. Bacon, Q.0. (C. T. Simpson with him), submitted The plaintiff then filed his bill, praying for an that the plaintiff had only a power to sell the wool, account and an injunction, and that, if necessary, which was determined by the death of Joseph such issue might be directed for trying the question Gledhill,
raised in the action as the Court should direct. Lepard v. Vernon, 2 V. & B. 51.
The suit now came on upon a motion for an injuncThe rule at Common Law was the same,
tion. The question before the Court was, whether, Watson v. King, 4 Camp. 272.
under the provisions of the Chancery Regulation Act,
1862 (25 & 26 Vict. c. 42), the Court must decide the STUART, V.-C., said, that if the words imputed to question raised in the action at Law. the deceased had been put in writing, they would have
The 1st section of that Act provides, that “In all created a valid equitable assignment of the wool; and there was no statute which required an assignment of diction of the said Courts of Chancery respectively is
cases in which any relief or remedy within the juris. chattels to be in writing.
or shall be sought in any cause or matter instituted or The case of Lepard v. Vernon, to which he had been pending in either of the said Courts, and whether the referred, was distinguishable. What was there de- title to such relief or remedy be or be not incident to cided was simply this, that a bare power of attorney
or dependent upon a legal right, every question of law to receive a debt, which had determined by the death
or fact cognisable in a Court of Common Law, on the of the donor, could not be set up by means of a parol determination of which the title to such relief or declaration of trust simultaneously made to the donee remedy depends, shall be determined by or before the of the power. If, however, the declaration of trust
same Court." had been contained in the instrument itself, he thought that Sir W. Grant would have held that the Malins, Q.C., and Chisholm Ballen, in support of debt passed, and the right of the person to whom the the motion, argued, that it was clear, even upon the power was given would have prevailed.
defendant's showing, that accounts must be taken His Honour held in the present case, though with between the parties, that such accounts could not be some hesitation, that in Equity the property in the taken without determining the question of the ownerwool passed to the plaintiff by virtue of the transaction ship of the horses, and that the ownership of the of the 2nd of August; an acc gly, made a de-horses was a question of fact, upon which the plaintiff's claration, and granted an injunction in the terms of title to equitable relief depended ; and that every questhe prayer in the bill.
tion 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 judgin 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,
secure to the creditors a composition of 6s. 8d. in the Baylis v. Watkins, Re Hooper, 1 N. R. 115.
pound, and that the creditors should assign their respecHis Honour said, that he could find nothing in the tive debts to a trustee for Thomas Mostyn, it was witAct which authorised the Court to transfer to itself
nessed that Thomas Mostyn covenanted that he would an action actually pending in a Court of Law.
as early as practicable proceed to raise by sale or
mortgage of the said estates such sum of money as Minule.--Injunction refused.
should be sufficient to pay and satisfy all such creditors as should execute this deed within six calendar monils
from the date thereof, a composition of 68. 8d. in the Wood, V.-C.
pound, on their respective debts, with interest at 4 WILLIAMS v. MOSTYN.
per cent., from the 17th of February, 1853, and also
as should be sufficier t to answer the trusts thereinDebtor and Creditor-Composition Deed by after declared, other than the trusts for Thomas Mostyn,
Stranger— Time, whether of Essence of Con- and would pay over this sum to the trustees.
absolute discretion as to the mode of raising the sum
required ; but in case it should not be paid within the A deed by which T. M. proposed to effect a composi- period limited, which the trustees and committee had tion with his father's and grandfather's creditors, con- power to extend, and also in case Thomas Mostyn should tained a proviso, that no creditor who should not execute die before the payment, the trustees were to raise the within six months should be allowed to come in under such sum by a sale or mortgage of the estates. any rule of Equity or otherwise, followed by a power to The moneys received by the trustees were to be the trustees, with the consent of T. M. and of certain applied—1st, in reimbursing to the trustees and memnamed persons, to extend the time for executing, or to bers of the committee their respective costs, &c., inadmit any particular creditors to the benefit of the curred, and to be incurred, “in procuring the execudeed :
tion of this deed by the judgment, specialty, and simple Held, that time was of the essence of the contract ; contract creditors intended to be benefited thereby;" that the creditors were not entitled to any notice of the 2nd, in paying the costs, &c., of executing the trusts ; deed; and that as against the creditors executing neither and 3rd, in paying the above-mentioned composition, T. M. nor the trustees could waive the actual execution
with interest. of the deed within the limited period.
The deed contained a proviso, that no creditor who Where a debtor offers a composition to his crcditors, should not have executed within the said period of six the presumption is against time being of the essence : calendar months should be allowed to come in, under, Secus where the offer is made by a stranger.
or execute, or be admitted to the benefit of the
saine, This was the hearing of a summons adjourned from except with such consent as next thereinafter menChambers, the question being, whether certain cre- tioned, upon any rule of Equity or otherwise : provided, ditors of the late and present Lords Mostyn were nevertheless, that the trustees or trustee (with the entitled to share in the benefits of a certain trust-deed, consent of Thomas Mostyn and of a majority of the comdated the 30th of May, 1854.
mittee) might extend the period for creditors executing By this deed, which was expressed to be made between the deed, or admit any particular creditor or creditors such of the creditors of the late and present Lords to the benefit thereof. Mostyn as should execute it, of the first part; the And the deed declared, that all moneys which should members of a committee representing the creditors, of come to the hands of the trustees, and should not be the second part ; three trustees, of the third part ; Lord required for the purposes aforesaid, should be held in Mostyn, of the fourth part; and the Hon. Thomas trust for Thomas Mostyn. Mostyn, the eldest son of the present and the grand- The deed also contained covenants by the creditors, son of the late Lord Mostyn, of the fifth part ; after that upon receiving their respective compositions, they recitals, showing that the late and present Lords would assign their respective debts to a trustee for Mostyn were, at the death of the former, indebted to Thomas Mostyn ; and that they would not, at any time various persons on judgment, specialty, and simple after executing the deed, take any proceedings either contract debts, to a large amount, that Thomas Mostyn against the representatives of the late Lord Mostyn or hal purchased or otherwise become possessed of con- against the present Lord Mostyn, or against Thomas siderable estates,
some of which had previously Mostyn, or any other proceedings for obtain payment belonged to the late and present lords, or one of them, of their respective debts. 23 tenants in fee or for life, and that nearly all these By an indenture, dated the 9th of August, 1856,
the trustees, with the consent of Thomas Mostyn and of Whitmore v. Turquand, 1 J. & H. 445 ; 3 De G. the surviving members of the committee, extended the
F. & J. 112. period for creditors executing the trust deed to the [The Vice-Chancellor referred to the case of Cossett expiration of six calendar months from that date.
v. Radford (not reported), in which he had dismissed Thomas Mostyn died in May, 1861, and in February, the bill of a creditor who claimed to execute a deed 1862, the trustees of the deed of 1854 instituted this of arrangement after the period agreed upon · bad suit against the trustees of Thomas Mostyn's will as de- elapsed.] fendants, seeking to have the trusts of the deed carried In Emmet v. Dewhurst (loc. cit.) the agent's authority into execution.
was not proved; here the representations had been By the decree made upon the hearing of the suit, an made by Thomas Mostyn's solicitor. inquiry was directed, what persons were entitled to No effect could be given to the declaration excluding the benefit of the trust deed. It appeared, upon pro- the operation of any rulo of Equity, secuting the inquiry, that many creditors had not Scott v. Avery, 5 H. of L. Ca. 811. executed the deed within the limited time, who now, however, claimed to have the benefit thereof. The
Osborne Morgan, for Miss Warningham, a bond cregrounds on which such claims were in each case rested ditor of Lord Mostyn, who had agreed to execute the sufliciently appear from the arguments of the counsel
deed when required, and had, within the period limited and from the judgment.
for execution, received payments from the agents of
Thomas Mostyn on the footing of the deed, contended Sir II. Cairns, Q.C., and Speed, for the 'trustees of that those payments raised a special equity in favour Thomas Mostyn's will, contended that all creditors who of his client, who ought to be treated as if she had had not executed the deed within the time limited actually executed the instrument, must be excluded. There was no analogy between the Field v. Lord Donoughmore, 1 Dru. & W. 227; present case and that of an arrangement deed between Biron v. Mount, 24 Beav. 642. a debtor and his creditors. Thomas Mostyn was a stranger who, admitting no liability on his own part,
Jolliffe, for Rhodes, a creditor who had been assured made an ex gratiâ offer to certain definite classes of by Thos. Mostyn's solicitor that she need not execute persons to pay out of his own property a certain that his client also ought to be placed in the same
the deed until she received the composition, contended portion of their demands against two other
persons, Emmet v. Dewhurst, 3 Mac. & G. 587.
position as if she had executed the deed.
Charles Hall, for the plaintiffs, the trustees of the Kenyon, Q.C., and Fry, for a creditor, who had
deed. executed the deed within the appointed time, objected to the admission of the other creditors, as the trust
Sir H. Cairns, in reply to Miss Warningham's and funds might prove insufficient to pay the compositions Rhodes's claims agreed that any equity which either on the total amount of the debts of the creditors who of them might have against Thomas Mostyn's represen. had executed.
tatives must be made the subject of a separate suit.
creditors to execute.
Daniel, Q.C., and Rawlinson, for a bond creditor,
Wood, V.-C., said, that the claimants proceeded who had not been properly required to execute the upon a false analogy between this deed and an ordinary deed, contended that the provision made for the costs composition deed. In dealing with an arrangement of procuring the execution of the deed showed that with a person's own creditors, the Court presumed an the trustees were to take active steps to procure the 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. J. N. Higgins and E. E. Kay, for different judg. But here Thomas Mostyn, the covenantor, was ment creditors of the present Lord Mostyn, contended stranger, under no obligation to pay any of his father's that, as regarded their clients, the deed was not volun- or grandfather's creditors. It had been argued that tary. Their judgments were charges upon so much of he had an interest in respect of his father's life estate, Thomas Mostyn's property as had come to him from his which had been conveyed to him; but the deed did father, and in particular upon estates of considerable not charge that life estate, nor, indeed, any particular value, of which Lord Mostyn had been tenant for property whatever, but simply stipulated that certain life ; and the trust deed contained a covenant by the proportionate sums should be raised, -it mattered not
Thomas Mostyn's solicitor had from what source, and be paid to those creditors held out to them hopes of a special arrangement of who should fulfil certain conditions. their claims, and this had prevented them from either tion could only be, what was the extent of Thomas sueing on their judgments or executing the deed. Mostyn's liability under his legal covenant ? In the They ought, therefore, to be considered as having absence of any special equity, the Court could not impliedly acquiesced in the deed,
assist creditors who had not complied with the proviNicholson v. Tutin, 2 K. & J. 18;
sions of the deed. To allow their claims would, in
creditors not to sue.
The ques. 3. 19.
effett, be to create a fresh charge upon Thomas which related to the same matters, he filed, under 15 de Mostyn's estate, and to make a fresh covenant for him. 16 Vict. C. 86, s. 19, a concise statement, and interrogaIt had been urged that the claimants sought to fix a tories for the examination of the plaintiff in that suit, liability in their favour, not upon Thomas Mostyn's who had been a defendant in the other two suits. Estate, but only upon any fund within the control of An order, allowing the plaintif' in the first suit to ihe trustees of the deed. But this came to the same defer answering till the defendant should have paid the thing; for if the fund only sufficient to satisfy costs due from him, was discharged. the creditors who had complied with the conditions, they could not be made to abate their claims in
This was a motion to discharge, or vary an order, favour of other creditors who had not complied with made in Chambers by the Chief Clerk, in the suit of them ; and, on the other hand, if there should turn Fry v. Ernest. out to be a surplus, it must be considered as having
The suit of Fry v. Ernest was to foreclose the debeen raised by mistake, and would, therefore, fall back fendant Ernest, and was instituted in October, 1862. into the covenantor's estate. The only other question
In December, 1862, Ernest filed his bill against the was, had any of the claimants established any special plaintiff and others, in the cross suit of Ernest v. Parequity in their favour. Some of them sought to found tridge (reported, 1 N. R. 425), praying, among other such an equity on the omission to give them notice of things, that the mortgage securities belonging to Fry, the deed, but the covenantor was not bound to give them the plaintiff in Fry v. Ernest, might be set aside. notice. They also argued that in arrangements of this But the bill in Ernest v. Partridge was demurred to kind time was not of the essence, but in this deed time for multifariousness, and the demurrer allowed with was expressly made of the essence, the covenantor's costs. On the 11th of March, 1863, Ernest instituted great object being to know at once how much he would
a fresh suit, Ernest v. Blencowe, to set aside the same have to pay. Others
, judgment and specialty creditors, securities ; to which suit he made Fry a defendant, set up a case of fraud on the ground that they had been but, before the defendants in that suit had answered, induced to delay either executing the deed or proceed. Chambers into Court), made an order, on the 25th of
his Honour (the matter having been adjourned from ing on their securities through hopes of favourable and special terms held out to them by the covenantor's May, 1863, staying further proceedings in the suit till solicitor. But this was a risk which they had encoun
Ernest should have paid the costs in Ernest v. Par. tered voluntarily. Two of the claims stood upon Ernest had put in his answer to the plaintiff's bill,
tridge. Meantime, viz., on the 6th of March, 1863, stronger grounds, viz., those of Miss Warningham and in the original suit of Fry v. Ernest, and under the of Rhodes. The circumstance of actual payments 15 & 16 Vict. c. 86, s. 19, had filed a concise statehaving been made under the deed or of an offer to execute the deed having been waived by the cove
ment and interrogatories for the examination of the nantor's solicitor, coupled with the existence of a
plaintiff. On the 9th of June, 1863, the plaintiff fmd before the Court, might, under certain circum. obtained, in Chambers, an order to have a month for stances, have constituted an approach to a special the time of the defendant's payment of the costs in
nswering these interrogatories, to be reckoned from equity in favour of the creditors, who had received the
Ernest v. Partridge. payments or made the offer. But as the time could not be extended without the consent of the committee Roll, Q.C., and G. R. Harding, for the defendant, of creditors, and as, whatever might be the case as to argued that the defendant ought not to be prevented, the trustees, the consent of the committee had not in consequence of default in paying costs incurred in been obtained, the claims of Miss Warningham and another suit
, from obtaining from the plaintiff the disKhodes could not be allowed to the prejudice of the covery whereby only he could defend himself ; that the creditors who had actually executed; but the order Court would not hinder even a person in contempt would be without prejudice to any application which from obtaining such a discovery. they might make by bill, petition, or otherwise, to
Giffard, 2.0., and Cracknall, in support of the participate in any surplus which might remain after order, urged that the concise statement and interroga. the claims of the creditors, who had executed, had been 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 Wood, V.-C.
required to answer in the suit of Ernest v. Blencowe, } FRY V. ERNEST. 12 Nov. 1863.
which had been stayed. They contended that Ernest
could file neither a bill for discovery nor one for relief, Practice-Unpaid Costs—15 d 16 Vict. c. 86, so long as the costs in Ernest v. Partridge remained
unpaid. A suit had been ordered to be stayed till the plaintiff Wood, V.-C., said that the Court would not refuse ia it should have paid costs in a cross suit previously the defendant liberty to defend himself in accordinstituted by him. As defendant in the carlier suit, ance with the provisions of the Act. The materiality
of the particular mode of defence would come in ques. company paid for the execution of its works a much tion at a further stage of the cause. The order made larger sum than would have been paid had the payby the Chief Clerk must be discharged with costs; but ment been made in money instead of these bonds; and his Honour ordered these costs not to be paid to the the property of the company, and of the shareholders defendant till further order.
on which the whole of the paid-up capital of the
company and the 60,0001. so borrowed, became Wood, V.-C., Wute v. CARMARTHEN AND CAR- charged with a debt of many thousands of pounds
.C 16 Nov, 1863. DIGAN RAILWAY COMPANY.
wholly unauthorised to be created." Public Company-Bonds-Practice
“11. The form of the said bonds is as follows :Shareholders Suit.
• The Carmarthen and Cardigan Railway Company, No.
Bond for 1. The Carmarthen and It is not primâ facie illegal for the directors of a railway company to issue bonds, binding the assets of the Cardigan Railway Company do hereby acknowledge
of that they stand indebted to
in company in excess of their authorised capital and parliamentary borrowing powers, for the purpose of paying
the sum of 1. for money due and owing from the a contractor,
said company to the said ; and the said comA shareholder sueing the company and directors for a pany, for themselves, their successors, and assigns,
his executors breach of trust must sue on behalf of all the other hereby covenant with the said shareholders.
and administrators, to pay to him, his executors,
1. This was a demurrer, for want of equity, to a bill
administrators, or assigns, the said sum of
with interest thereon at
upon filed by one of the shareholders of the Carmarthen and the rate of 51. per cent. per annum from the date Cardigan Railway Company against the company, their directors, and their contractor (H. A. Holden), pray
hereof until payment, such interest to be payable
half-yearly upon the ing for a declaration of the illegality of certain bonds
and the issued by the company, and for an injunction to
in each year. Given under the
common seal of the said company, the restrain the company from issuing any bonds, &c., not
18 . authorised by their Acts.
"OWEN BOWEN, Secretary. The company were authorised, by their Acts, to raise
(L.S.) 200,0001. and 174,0001. capital, of which 137,2841.
"N.B.-On production of this bond, the interest, 138. 6d. had been raised ; and to borrow 60,0001., and when due, will be paid at the offices of the company, 58,0001., the whole of which former sum had been borrowed, but none of the latter. The amount of the
No. 4, Chatham-place, London, E.C.' bonds far exceeded 58,0001.
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 :
capital, and conferring upon them extended borrowing “7. The sum so received on account of capital and powers, and proceededl as follows :for loans was wholly insufficient for carrying into effect “15. Notwithstanding the powers conferred by the the objects of the said company, and having spent the last-mentioned Act upon the company for the raising whole of the paid-up capital, and the amount so raised of additional capital to the amount of 174,0001., no by loans, and being unable to obtain any more money on steps whatever had been taken for that purpose, but account of the subscribed capital, the directors of the in lieu thereof the defendants, other than the defendcompany, the defendants, other than the said H. A. / ant H. A. Holden, are proceeding to carry out the Holden, devised a scheme for evading the restriction works authorised by their several Acts of Parliament contamed in the said Act as to the amount of money by means of bonds as before mentioned.” the company was empowered to borrow, and, in pur- “16. The bonds so issued would appear to be suance of such scheme, they proposed to the con- securities within the meaning of the borrowing powers tractors for the construction of the railway, to pay contained in the said Acts of Parliament, and there is them the amount of their contracts for the work to be nothing apparent thereon by which the public can done by bonds or obligations of the said company, know whether such bonds form part of the money, payable at certain specified deferred periods, with authorised by the said Acts to be borrowed, or under interest half-yearly ; in the mean time such bonds to what authority the said bonds are created.” be issued in such manner, and for such amounts, as “19. The plaintiff has also lately discovered, as the contractors might desire."
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, not having sufficient funds to make the deposit rethat these bonds could only be negotiated at a quired by the Standing Orders of Parliament on discount of from 201. to 251. per cent., and made making their application for the said Act” of 1862, their contracts accordingly.”
"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