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Reports of CASES ARGUED and DETER

MINED in the HIGH COURT OF
CHANCERY, during the Time of Lord
Chancellor Thurlow, and of the several
Lords Commissioners of the Great Seal,
and Lord Chancellor Loughborough, from
1778 to 1794. By WILLIAM BROWN,
Barrister-at-Law. Fifth Edition by Robert
Belt, Esq., Barrister-at-Law. 1820. Vol. II.

[1] SITTINGS BEFORE MICHAELMAS TERM, 26 Geo. 3, 1785.

GEAST against BARBER. Lincoln's Inn Hall, October 28, 1785. Where commissioners on one side do not attend, in order to have a new commission

the affidavit must state that the party or his agents have not seen, heard, or been informed of the depositions on the other side. (This cause came on for a hearing afterwards, and is reported 2 Bro. C. C. 61.)

A commission having issued for examination of witnesses, and commissioners' names been struck, both the defendant's commissioners were prevented, by illness, from attending the execution of the commission : the commissioners for the plaintiff therefore proceeded ex parte. Publication had not passed.

Mr. Price moved, upon affidavit of the facts as above, for a new commission to examine the defendant's witnesses.

[2] Mr. Lloyd opposed the motion, insisting, that the affidavit should have stated, that the defendant, or his agents, had not seen, heard, or been informed of plaintiff's depositions, nor willingly will see, &c., till he hath examined, or till publication, and cited Gilb. 130, 131.

Mr. Mitford said, he understood that had been the rule before the oath of secrecy was enjoined to the commissioners; but that, since that time, the usual oath had been, that the party had not seen the depositions.

Lord Chancellor [Thurlow] thought it reasonable that the affidavit should go the whole extent laid down by Gilbert, and upon such affidavit, he should order a new commission at the defendant's expence, with liberty for the plaintiffs to cross-examine. (No Entry.)

BODDAM against Riley. Lincoln's Inn Hall, 29th October 1785. Vide S. C. 1 Bro. C. C, 239, and note.—No interest allowed on an account in India, not

settled by the parties, but, at a distance of time, and with great difficulty, by a third person. (See this decision affirmed, on appeal in the House of Lords, 4 Bro. P. C. 561, octavo edition ; and note particularly the able arguments on the case on behalf of the defendants, the respondents, ibid. p. 571, 572. For various classifications of the law relative to the allowance of interest, see 4 Bro. P. C. 561 & 573, in the notes.

In the Reporter's first volume, this case is reported, and is there treated as having been decided by Lord Chancellor. It was however, in fact, sent to the Master, to con

C. IX.--1

sider whether any, and what interest should be allowed upon the balance of the account. The Master (on the 24th May 1785] reported that no interest ought to be allowed. There was an exception to the Master's report, in consequence of that disallowance. (Note : No such thing. The Master had been ordered merely (and that on consent) to take an account of what was due to the creditors of the joint concern, and to compute interest on their debts as usual. 1 Bro. O. C. 239, note from R. L. and 4 Bro. P. C. 566, octavo edition. The above report is also further incorrect ; since the case did not come on before the Court on exceptions, but for a decree on further directions. See 4 Bro. P. C. 567.) The facts being as before stated.

Mr. Ilarding and Mr. Mitford supported the exceptions on two grounds.--Ist. On the custom in India, that such balances of accounts should carry interest ; which custom was proved by affidavit : and Mr. Mitford cited a case of Holme v. Allwright, before the Lords Commissioners in 1770, which was a decree in the mayor's court of Calcutta for a sum of money due on balance of an account, for principal and interest. The parties coming over here, a bill was filed for the balance with Indian interest, and the Court referred it to the Master to take an account of what was due under the decree, with the interest usually paid in India. The 2d ground was that, independently of [3] any custom, the balance would carry interest, this being a liquidated debt, though not regularly signed and allowed by the parties : and for this purpose, they cited Blaney v. Hendrick, 2 Blackst. Rep. 761 ; 3 Wilson, 205, S. C. Barwel v. Parker, 2 Ves. 365. Vernon v. Cholmley, Bunb. 119; 2 Eq. Ca. Abr. 529, pl. 4, and 532, pl. 17, 20.

Lord Chancellor [Thurlow). The cases cited apply only where there are accounts regularly stated between the parties, in which case there is an implied contract on the part of the debtor to pay; and all contracts to pay, undoubtedly, give a right to interest from the time when the principal ought to be paid. But this is not so here. It is true, the sum claimed does, in fact, appear to be due, on balance, at the close of the account ; but there was no settlement or acknowledgment by the debtor, which raises a contract to pay, and which is the only ground upon which interest is given. 1 Wms. 653. For, according to the argument of the exceptant, that whatever appears in fact to be due on the balance of an account shall carry interest, the rule must go to every debt for goods sold and delivered, which certainly is not the law of this country. Then, as to the custom of the country, even if it does exist to the extent laid down by the affidavits, I can not think I can apply it here. I am to say that, although the general rule of law is otherwise, yet, by reason of this custom, interest is to run on a debt not carrying interest in this country, because the original transaction was in India.I cannot admit such a custom to control the clear law of this country. Exception over-ruled. (No Entry on this occasion.) (Upon an appeal to the House of Lords, the Lord Chancellor's (decree) was affirmed, on the 27th Feb. 1787. [4 Bro. P. C. 561, 566, 567, octavo edition.] The matter did not come forward upon any exception whatever, but on further directions, &c.)

Hoatu against HOATH. Lincoln's Inn Hall, 3d Nov. 1785. Giving the interest of a legacy to the legatee, or for his maintenance, vests the legacy.

(Vide Walcott v. Hall, 2 Bro. C. C. 305, and the several other material cases stated, 1 Roper on Legacies, 182, et seq. The distinction, however, noticed ibid. p. 186, must be observed, that it is otherwise where a provision is made for the support of the legatees in some other manner than by way of interest specifically.)

Upon a petition, the testator, by his will, gave a sum of £100 to Thomas Hoath, at his age of twenty-one, and directed the interest, in the mean time, to be paid to his mother for his maintenance. Thomas Hoath dying under age, the question was, whether this legacy was, or was not, vested.

[4] Lord Chancellor [Thurlow) said, It was impossible now to contend that where the interest of a legacy is given to the legatee, until the time of payment of the principal, that it is not a vested legacy: and the giving the interest for his maintenance is precisely the same thing. (No Entry.)

[5] MICHAELMAS TERM, 26 GEO. 3, 1785.

Ex parte HODGSON. A partnership debt may be proved under a separate commission. (See Ex parte Cob

ham, 1 Bro. C. C. 576, and see particularly Ex parte Page and Ex parte Flintum, 2 Bro. C. C. 119, 120. But see the notes to Ex parte Cobham, 1 Bro. C. C. 576. Ex parte Chandler, 9 Ves. 35. Ex parte Hall, ibid. 349. Dutton v. Morrison, 17 Ves. 207, 208, &c.)

Burney the bankrupt was partner with Davidson, who is in the East Indies, and being indebted separately to

to whom he had given a note, she pressed him for a better security ; upon which he gave her a partnership note. Upon a separate commission against Burney, she proved this note; and the present petition was, that the proof of this joint debt upon the separate commission might be rescinded.

Lord Chancellor[Thurlow]refused the prayer of the petition, there being nodistinction as to sole or separate debts, and said he thought proper to declare that debts, whether sole or joint, ought to be paid out of the bankrupt's estate ; which is composed of his separate estate, and of his moiety of the joint estate, and therefore ordered that she should come in pari passu with separate creditors.

Tyssen against BENYON. [14 & 15 Nov. 1785.] The testator in a settlement of an estate, reserved to himself an election as to parcels,

and afterwards, by indenture, he was to have an option of paying a certain sum within 24 calendar months; not having elected in his life-time, and his personal estate being inadequate to payment of his debts, the estate covenanted shall be conveyed.

By settlement, previous to the marriage of the plaintiffs, Samuel Tyssen and Sarah his wife, bearing date the 24th September 1779, Francis John Tyssen, Esq. deceased, the plaintiff's father, agreed to convey certain lands and other estates, and, it being among other parcels, recited, that certain farms, &c., at Foulden in Norfolk, were of the rent of [£380), he covenanted (within 18] calendar months, to purchase lands in the county of Norfolk, sufficient to make up, with the farms at Foulden, the sum of £500 a-year, and to convey the same to uses, or to convey other farms, &c., at Hackney in Viddlesex, of sufficient value to make good so much as the farms, &c., in Norfolk should be deficient of £500 a year. - By an indorsement [6] on the deed (before the execution thereof) it was agreed by the parties, that it should be at the option of Francis John Tyssen, within twenty-four calendar months after the marriage, either to convey the lands according to the covenant, or to pay to the trustees £12,000, to be laid out in the purchase of other lands to be settled to the like uses ; and in the mean time, to be placed out at interest, and the interest to be received by the persons entitled, according to their respective interests; and it was also further agreed, the land intended to be conveyed should be under the control of Francis John Tyssen, with respect to an intended inclosure, and that he might exchange them, and sett th new allotted, or other purchased lands. The marriage took place, and there was no issue except the other plaintiff Sarah the daughter. Francis John Tyssen died 9th September 1781, having made his will, bearing date the day of his death, whereby he gave annuities charged upon his estates in Middlesex, Essex, Norfolk, and elsewhere, and gave and devised all his manors, &c., to trustees for payment of debts and legacies, and for other purposes, and to allow to the plaintiff Samuel such sum of money yearly during his life as they should think proper, the remainder to accumulate during his life, and after his decease to be laid out to certain uses therein declared. (Note : The inclosure was nearly completed when F. J. T. died, and his executors and trustees completed it: whereby other lands in Foulden were given in exchange, and which were valued at £650 per annum. R. L.)

The conveyance covenanted to be made by the settlement, having never been made, or the money paid; the plaintiffs filed their bill (Note : Insisting, that the testator had made his election by devising the estates; or if not, that his executors and trustees had done so since his decease. R. L.), praying that Francis John might be declared

to have made his election to pay the £12,000, or that an election might now be made : and, if the persons interested should elect to pay the £12,000, it should now be raised

; and, if the election should not be considered as having been made, and should not be now made, that a proper part of the testator's estate in Norfolk should be conveyed upon the trusts contained in the marriage articles.

The plaintiffs, by the bill, insisted that Francis John Tyssen, by the devise of the premises covenanted to be conveyed (included in the general devise), had made his election to pay the £12,000, and if not so, that the defendants by letters and acts stated in the bill, had made such election.

[7] The heir at law, and executors submitted the question of election, and said that the testator's debts having exceeded his personal estate, they had no fund out of which to pay the £12,000 but the real estate.

Lord Chancellor [Thurlow] said that, although the testator had covenanted to convey in twenty-four months, and, therefore, after that time he had lost his election ; yet, after that time, as it lay in recompence, the court would have permitted it to be made good. And, after his decease, he having given both his real and personal estate to the same person, that person might perform either part of the covenant, and the court would not hold the devisee bound by the testator not having made his election within twenty-four months : but, in the events which had happened, his Lordship decreed the original estate at Foulden, or the lands which came instead of it upon the exchange, to be conveyed to the uses of the settlement, and to be made equal to the value of £500 per annum, by the conveyance of other parts of the estate. (Reg. Lib. 1785, B. fol. 145 b.)

HINDMAN against TAYLOR. [8 June and 16 November 1785.] [S. C. 2 Dick. 651.)—Plea, of matter which would be a good plea to the action at law,

is not a good plea, here, to a bill for discovery leading to legal relief. (Note : See the observations of Mr. Beames upon this case, &c., Elem. Pleas, 276, 277. The case, however, of the demurrer (in Debigge v. L. Howe), there referred to, seems to make all the difference; and Mr. Beames admits the distinction, p. 277. The Editor therefore thinks the decision in the principal case perfectly sound, not withstanding the objections adduced.)

An agreement had been entered into between the plaintiff, who was commander of a large trading ship (an East Indiaman), and the defendant, for the purchase of the command; and, accordingly, a contract was made, by which the plaintiff covenanted, in consideration of £4000, to resign the command, in order that the defendant might be appointed to it. Three thousand pounds were paid into the hands of Sir Charles Raymond and Company, bankers, by the defendant, to be applied to the drafts of the plaintiff

, if the defendant should be appointed; otherwise to those of the defendant : and a bond was given for £1000. The defendant was appointed, and made a voyage ; but afterwards a new agreement was entered into, and £2000 being paid on the part of the defendant to Wildman, in whose hands the contract was, he, by the consent, as he understood, of both parties, suffered the names to be taken off the contract.

[8] The plaintiff filed this bill for a discovery of the agreement, stating the £2000 to have been paid in discharge of the bond, and of £1000 of the remaining sum due. To this bill the defendant pleaded the facts stated as above, in bar to the discovery, as amounting to a release.

The plaintiff had also excepted to the defendant's answer, with respect to the payment of the sum into the banker's hands; and the exceptions having been over-ruled, had excepted to the Master's report.

The plea having been argued in Trinity term last, the Lord Chancellor had overruled it, on the ground that a plea of a legal bar is not a good plea to a discovery of matter in aid of a legal remedy : but his Lordship had ordered it to come on again with the exceptions to the Master's report.

Mr. Madocks, Mr. Scott, and Mr. Stainsby, in support of the plea.

The facts stated by the plea bring the matter to this question, whether a bill being filed for a discovery in aid of a legal remedy, a plea of matter, which will make an end of the cause at law, will be a good plea to the discovery. Such a plea ought to be good,

otherwise the practice of the court does not support the purposes of justice. Where the relief is equitable, the plea to the relief is a bar to the discovery; therefore, if the plea be of matter which will be a bar at law, it ought, upon the same principles, to be a bar to the discovery. (Note: See Debigge v. L. Howe, stated 3 Bro. C. C. 155, Mitf. Tr. 152, third edition. And the judgment in Rondeau v. Wyatt, 3 Bro. C. C. 155 ; with the observations of Mr. Beames, Elem. Pleas, 276, 277.) If it be not, a man, without any legal claim, may have a discovery of all the transactions of another's life. It has been thrown out, as a doubt, whether the defendant could plead to the discovery any bar but an equitable one ; but there are many instances of a legal bar being pleaded. In a bill for an account, and relief prayed, a settled account may be pleaded, and is held to be a good plea, unless the plaintiff amends his bill, and shews particular mistakes. So, if a plaintiff files a bill in aid of his legal remedy, if there has been a release, that may be pleaded in bar to the bill in aid, as well as to a bill for equitable relief. The cases in 1 Vern. 179, 2 Atk. 1, are instances of a plea of an account. An award may be pleaded, 3 Atk. 529, 644 ; so a fine and non-claim shall be pleaded in bar, 1 Chan. Cases, 278.

[9] To what end should the defendant be harassed with questions which can answer no purpose ? Unless the plaintiff has a right, the court will never suffer the defendant to be compelled to answer. If the bar pleaded be a legal bar, and a question of law arise upon it, the court will take the opinion of a court of law how far it is a bar there : but, in this case, there can be no doubt ; the acceptance of the money, and taking the names off the agreement, put an end to the plaintiff's claim. Lord Hardwicke, in Brouns word v. Edwards, 2 Vesey, 247, says, a plea must suggest a fact, it must go to a hearing; and if the party does not prove the fact, the court may direct an examination on interrogatories. Here, if the defendant should not prove the facts stated, he may be examined to discover the agreement; if he does, Hindman will be bound by the subsequent agreement to take the £2000.

Mr. Mansfield and Mr. Ainge for the plaintiff. It is not stated in the plea, that the plaintiff accepted the £2000 in satisfaction of the whole sum agreed for; it is only stated that the names were taken off the agreement, and a memorandum made, that the plaintiff agreed the names should be taken off, and that he should acquit the defendant of the payment of more. This memorandum is in the possession of the defendant. Wherever a written agreement is detained or destroyed by the defendant, it makes the strongest ground possible for a discovery. If a legal bar were permitted to be pleaded here in bar of the discovery, it would deprive the plaintiff of the right of having the fact tried by a jury, or its legal effect. This is entirely new doctrine. There is no case, or even dictum, to support the position, that such a plea can be a bar to a discovery. All the cases are, where the plaintiff has come for relief into the court of equity. There if the defendant can answer (for to this purpose a plea is an answer); by a short point, it is admitted in that form. Here, though the plea be of a single fact, yet, the question being of the legal effect of that fact, the admission of it as a plea, would translate the jurisdiction.

Mr. Madocks (in reply). The plaintiff will not be deprived of a trial by jury; for, if there is any fact in doubt which ought to (10) go to a jury, the Court will send it to one for trial. The question is, whether the acceptance of the £2000 in full, is equivalent to a release. There is no question of law to decide.

It stood over for a few days.

Lord Chancellor [Thurlow). As a plea, this cannot stand. A plea in bar to the action is not a plea to the discovery. The matters pleaded are all special objections, not a general plea to the discovery. If you can plead that which is a bar to the action, and have it tried as a bar to the discovery, the whole is wrong. The more I think of it, the more I am convinced it cannot be set up as a bar to the discovery. The reason for permitting a plea in bar to the relief is to prevent the going into the whole cause, by that, which, if it stood per se, would put an end to it; but, where the bill is for discovery, the cause ends with the answer. Then the whole remedy being, upon the face of the transaction, at law, the question is, whether you shall by the plea bring the whole merits on here.--I strip the case of the matter of answering improper questions, because that is to be judged of in a different manner. I take it upon the general prayer. If he had prayed relief it would have been demurrable ; and now you say, he shall not have a discovery, because his relief is at law. This is a case where he has no election, he must sue at law. The dry question is this, whether there is any objection, in natural

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