V. C. May, 1823.

Demurrer

there appearing no reason why defendant should not be examined as a witness.

V. C. February, 1823.

tition as to surplus, and the accounts of his assignees.

SMITH V. THOMPSON.

THE bill was for the recovery of an estate, and it stated that an ancestor of Thompson had bought the estate but afterwards sold it, and that Thompson being heir at law had the title deeds. in his hands, or knew what was become of them. There was no other passage in the bill respecting the title deeds: neither was there any other passage in the bill connecting Thompson with any discovery, or relief, sought by it. Thompson put in a general demurrer. SIR JOHN LEACH.-This is not a bill for the delivery of the title deeds. The bill does not show either that Thompson has, or claims to have, any interest in the estate. There appears no reason why Thompson should not be examined as a witness. Upon the face of the bill it is not discoverable, that he fills any other character but that of a mere witness. If there was any allegation setting forth, with reasonable precision and certainty, any interest as existing, or pretended to exist in Thompson, then, to avoid answering, he must have pleaded or disclaimed-I say with reasonable precision and certainty-as otherwise the bill would be open to a demurrer for vagueness and uncertainty. The demurrer must be allowed.

RE BROWNE, A BANKRUPT.

THE creditors having received twenty shillings in the pound, the bankrupt presented a petition, the nature of which the Bankrupt's pe- ensuing judgment sufficiently explains. SIR JOHN LEACH.The bankruptcy statutes direct that the assignees shall, upon the request of the bankrupt, declare how they have disposed of his real and personal estates, and it follows he shall inspect their accounts. If any debts owing to him remain unpaid, he is entitled to recover the same, and he may have liberty to use the name of his assignees for that purpose, and the assignees will, if necessary, be restrained from taking proceedings to get in such outstanding debts themselves. Such are, incontrovertibly, the bankrupt's rights. The mode of compelling the payment of the surplus is by petition in the bankruptcy, but there are cases in which a bill must be filed. So far the petition is right. But it is asked to have leave to surcharge and falsify the accounts. Now that is a permission which cannot be given, unless upon some very special grounds. A bankrupt may petition the Great Seal, stating that there will be a surplus, and pointing out errors in the accounts, and such errors will be rectified, but in general the relief cannot be extended beyond the specified items. Those items, and those alone, may be expunged or altered.

L. C. November, 1822.

Petition to stay

IN THE MATTER OF RUSSELL, A BANKRUPt. THE petition sought to stay the allowance of the certificate upon the ground that the bankrupt had by fraudulent represen- certificate for tations obtained credit from the petitioner. LORD ELDON.- fraud prior to the bankruptcy. What have I to do with this misconduct of the bankrupt antecedent to the commission? If the commissioners certify to me that the requisite proportion of creditors have signed, and that the bankrupt has made a full disclosure of his estate, and has in all things conformed to the bankrupt statutes, I must allow the certificate. With some few exceptions, for instance, where the bankrupt has lost money by gaming, or stock-jobbing, his transactions prior to the bankruptcy cannot be brought under my view upon an application to stay the certificate. I cannot withhold the allowance by reason of such dishonest practises as are here alleged. I know that the Act for Relief of Insolvent Debtors proceeds in some sort upon a different principle. The commissioners in insolvency are authorised to inquire whether a prisoner has contracted debts fraudulently, by false pretences, by breach of trust, or even without having any probable expectation of being able to pay them, and in such and some other cases they are empowered to postpone the prisoner's liberation. But in bankruptcy the legislature has not conferred any analogous authority on persons holding the Great Seal. It is not for the Chancellor to consider whether bankrupts have acted like knaves, and creditors like fools.

WALKER v. HARDMAN.

WALKER and Co. were the bankers of Fidgeon and Co. who, having greatly overdrawn their account, and needing further advances, executed to Walker and Co. a bond, in the penalty of 20,0007., conditioned to pay 10,000l. with interest from the date of the bond. Walker and Co. contended that this bond was not meant as a security for the balance owing to them from Fidgeon and Co. at the time the bond bore date, but for the general balance, which should from time to time be owing; and there had been a reference to the Master on that point, who took some parol evidence as to the intention of the parties not requisite to be here set forth, and reported that the bond was given as a security for the balance, which might from time to time become due to Walker and Co. An exception was taken to the Master's report. SIR JOHN LEACH, in pronouncing judgment, said the legal effect of

VOL. II.

V. C. December, 1826.

Question upon bond given to bankers for securing custom

er's balance.

1826.

WALKER V.
HARDMAN.

V. C. April, 1823.

ficiency of memorial of an

nuity.

the bond was the first question. Did it import, at law, an obligation for the payment of a present debt, or an obligation for the payment of any future floating balance that might arise between the parties? There were two expressions in the bond, which seemed to connect it with a present debt. In the first place the bond was payable on demand. That imported a present debt, for a demand might have been made the next day. In the next place it was payable with interest from the day of the date. Now was that consistent with anything but a present debt? At law the effect of a bond for a present debt could not be extended. But if there was any collateral agreement that it should be a security for a future floating balance, a Court of Equity would sustain that collateral agreement; for to do so was not to contradict the bond, but to enlarge its operation. When the reference to the Master was made, it must have been stated to the Court that there was a collateral agreement to extend the bond beyond its legal effect, and it could be only with a view to ascertain whether there was such an agreement, that the Court could have directed the Master to inquire. Had it not been for some such statement, the Court would not have been warranted in directing the reference. The circumstances, however, stated in the Master's report did not prove any such agreement, and there was nothing to carry the bond beyond its legal effect. By the legal effect of the bond, it was a security for a present debt-for the debt owing when it was executed; and that clearly distinguished the case from some cases, proceeding on the ground that the instrument, on which the question arose, did not purport, upon the face of it, to be a security for a present debt. The exception was allowed.

MORRIS v. JONES.

By indenture dated May, 1818, Jones, in consideration of Question of suf- 11,000l., granted to Morris an annuity of 14297. In 1813 and 1814 the life of Jones had been insured in three sums, amounting to 11,0007.; and by another indenture, also dated May, 1818, the policies effecting such insurance were, in consideration of five shillings, assigned to Morris, who was to re-assign them should the annuity be redeemed. These policies were, in May, 1818, worth, to be sold, 11007. The annual premiums were 857. less than must have been paid had there been no prior insurance, and the assignment of the policies was made to Morris in order to diminish to that extent his expense in insuring Jones's life. In the enrolment of the memorial of the annuity, 11,000l. was stated

1823.

MORRIS v.

to be the consideration paid for it, and no mention was made of the assignment of the policies. Upon a motion it was contended that the memorial was sufficient. SIR JOHN LEACH.-The policy JONES. of the Annuity Act (53 George III. c. 141) is, that the transactions to which it relates shall not be enveloped in mystery. The legislature has not prohibited such transactions, but by giving publicity to them has sought to deter purchasers of annuities from taking those dishonest advantages in dealing with necessitous persons, of which men are but too apt to avail themselves when certain of secrecy. Hence it is that the Act requires that the enrolled memorial shall contain the pecuniary consideration, or considerations, for granting the annuity. Now what are the facts here? The deeds granting the annuity and assigning the policies are separate, but they form only one bargain. It was part of the bargain for the purchase of the annuity that the three policies should be assigned. It is plain so large a sum as 11,0007. would not have been given, had not Jones agreed that Morris should have the advantage of the three policies. Whoever buys an annuity insures the grantor's life in order to secure a return of the price in case of his death, and the amount of the consideration for the annuity is regulated by the amount of the premium for the insurance. That is the universal practice. Morris would therefore have himself taken steps for insuring Jones's life, had it not been stipulated that the already existing policies should be assigned to him. Now if Morris had first insured in May, 1818, it is obvious he must have paid a much higher rate of premium, inasmuch as Jones was several years older than when the three policies were granted. Morris therefore got something besides the annuity. He got what saved him an increased yearly outlay for insuring the grantor's life. In truth for the 11,000l. he gets an annuity exceeding 14297.; for what is saved in the premiums payable, ought to be considered as added to the annuity. If there had not been an assignment of the three policies, the premiums which Morris pays would have been 857. a year more than they actually are. Any one unacquainted with this circumstance would imagine the contract more favourable to Jones than it turns out to be. Jones sacrificed what was worth 11007. that Morris might not incur this additional yearly expenditure. The Act therefore has not been complied with either in letter, or spirit. The 11,000l. was the consideration for the annuity and for something besides. Now unless it is known what proportion of the 11,000l. is to be attributed to that something, you are ignorant

1823.

MORRIS v.
JONES.

M. R. November, 1823.

Evidence of direct and of collateral facts.

of the actual price paid for the annuity; and it is impossible to form any opinion of the fairness, or unfairness, of the dealing between the parties. It may be said that according to this mode of reasoning, in hardly any case does the memorial disclose the true price paid for the annuity, inasmuch as it does not disclose the age of the grantor, for whose life it is generally to endure, nor the state of his health, which must regulate the amount of the yearly premium. But these particulars cannot be concealed from any one interested in learning them. This is not the sort of information, which could not well be obtained without the aid of an Act of Parliament. Further, put the case of the policies assigned being such as required no further premium to be paid, as might happen where the premium is payable for a certain number of years, and not for the whole term of life. This would obviously make the contract altogether exorbitant, and yet it is asserted that the memorial need not notice such a fact. Upon the whole I am of opinion that this memorial is defective.

The annuity was, as usual, secured by a warrant of attorney, upon which judgment had been entered up in the King's Bench; and Morris having issued a writ of elegit, a rule nisi was obtained for setting aside all the proceedings. Upon cause being shown against the rule, the Court of King's Bench (Trinity Term, 1823) came to the conclusion that the memorial was sufficient, and the rule was discharged. See Morris v. Jones, 2 Barn. & Cress. 232; S. C., 3 Dowl. & Ryl. 263. It does not appear from either of these reports that the previous decision of Sir John Leach was mentioned.

COOKE v. COOKE.

SIR THOMAS PLUMER.-All evidence must be taken with reference to the subject-matter, the direct facts, which are the material facts-those principally put in issue between the parties -and the collateral facts, which are matters of inducement, leading and introductory to the others. Depositions are very often irrelevant as regards the direct facts, but are allowed to be used as showing collateral facts. Now the direct-the material-facts must be made out both in Courts of Law and Equity by legal proof; but collateral facts do not require such strict proof. To distinguish the former from the latter, frequently demands the exercise, by counsel, of their greatest skill and caution.