V.C. M.] HAYMAN V. THE GOVERNING BODY OF RUGBY SCHOOL. of selecting a boy from four particular parishes to be educated at the expense of the charity as a clergyman of the Church of England. In default of their finding a fit candidate within those four parishes, they were at liberty to go to any other parish; they had gone out of the four parishes, and had selected a candidate; and a farmer, an inhabitant of one of the parishes, being dissatisfied, filed a bill to restrain them from carrying out the charity in favour of the boy, who did not belong to one of the four favoured parishes. Lord Truro, in a very remarkable judgment--and I only refer to this part of itsays: "The duty of supervision on the part of this court will thus be confined to the question of the honesty, integrity, and fairness with which the deliberation has been conducted, and will not be extended to the accuracy of the conclusion arrived at except in particular cases. If, however, as stated by Lord Ellenborough, in Rex v. The Archbishop of Canterbury, trustees think fit to state a reason, and the reason is one which does not justify their conclusion, then the court may say that they have acted by mistake and in error, and that it will correct their decision, but if, without entering into details they simply state, as in many cases it would be most prudent and judicious for them to do, that they have met and considered and come to a conclusion, the court has then no means of saying that they have failed in their duty, or to consider the accuracy of their conclusion." Rex v. The Bishop of London was a case in which no minister could preach without the sanction of the diocesan. In that case, the Bishop of London having refused his sanction to a particular candidate, an application was made to the Court of Queen's Bench for a mandamus to compel him to license. I read it only for an expression of Lord Ellenborough's. The Act said, "that no person should be allowed to preach, unless he be first approved and thereunto licensed by the archbishop or bishop. Suppose he should return non idoneus generally; can we compel him to state all the particulars from whence he draws his conclusion? Is there any instance of a mandamus to the ordinary to admit a candidate to holy orders or to specify the reason why he refused? If indeed, it had appeared that the bishop had exercised his jurisdiction partially or erroneously; if he had assigned a reason for his refusal to license which had no application, and was manifestly bad, the court would interfere; but the difficulty that I feel is, that the bishop, as it now appears, stands only upon his objection to the fitness of this party, of which the statute meant that the bishop should be the judge." That came afterwards again before the court; and it is reported in the 15th East; it was an application against the bishop and the Archbishop of Canterbury, and it is only necessary to say that Lord Ellenborough again, in delivering a more elaborate judgment of the court, says (p. 146), " But, in the instance of the lecturer, the term approbation in the statute 13 & 14 Car. 2, is quite another thing. What scales have we to weigh the conscience of the bishop? And how are we to know whether he properly or improperly disapproves? May he not properly disapprove of the candidate for a lecturer's licence on account of many matters which cannot be conveniently stated to a court of justice? May he not disapprove for matters within his own personal observation and knowledge; for the [V.C. M. habits of life and conversation of the person, which might be known to him from residing in the same university or society with him; from his conduct in life, down perhaps to the very time when the bishop is called upon to signify his approbation? Is he to exclude his own knowledge, the most material of any? Does the law say upon what proof he is to act, or that he is to have witnesses upon oath to the facts by which his judgment is to be guided. What authority has he to compel the attendance of witnesses before him? The word of the statute is 'approve,' and he must exercise that approbation according to his conscience, upon such means of information as he can obtain, and everything that can properly minister to his conscientious approbation, or disapprobation, and fairly and reasonably induce his conclusion on such a subject, though it might not be evidence that would be formally admitted in a court of law, may, I am of opinion, be fitly taken into his consideration." I need hardly say that pecuniary interest in the governing body would be conclusive. That was decided in Reg. v. The Justices of Hertfordshire, where one of the justices, who decided the question, had a very insignificant pecuniary interest, I think, amounting only to 81. or 91.; but that was considered by Lord Campbell in the Court of Queen's Bench as fatal to his exercising any judgment, and the finding, to which he was a party, was quashed. The same thing will be found in Reg. v. The Justices of Suffolk: but although pecuniary interest will disqualify, circumstances which may be calculated to produce bias will not do so. Therefore in the case of Reg. v. Rand, where two of the justices were trustees of a property, which would be affected by the decision (it was a rating question), as they were only trustees, having no pecuniary interest, it was decided that, though that might produce bias, it was not a disqualification; and Mr. Justice Blackburn, in giving the judgment of the court, said, "Wherever there is a real likelihood that the judge would, from kindred or any other cause, have a bias in favour of one of the parties, it would be very wrong in him to act; and we are not to be understood to say that where there is a real bias of this sort the court would not interfere; but in the present case there is no ground for doubting that the justices acted perfectly bonâ fide; and the only question is, whether, in strict law, under such circumstances, the certificate of such justices is void, as it would be if they had a pecuniary interest; and we think that Reg. v. Dean of Rochester is an authority that circumstances from which a suspicion of favour may arise, do not produce the same effect as a pecuniary interest, and as the decision in that case was on demurrer to a plea, and might have been taken into error, the authority is one on which we ought to act." Therefore there was a bias there, but no interest.. Upon these authorities then, and upon every principle, it is clear that if the governing body was properly constituted, and if they fairly and honestly exercised the power of dismissing the plaintiff, their decision is not liable to be controlled by this court. But the contention on the part of the plaintiff is, that looking at the events which occurred on his appointment to the head mastership in 1869, and the subsequent transac tions, the governing body was not so constituted as to be capable of coming to a just and impartial V.C. M.] decision, and that its decision was in fact unjust and partial. The objection of the plaintiff to the decision of the governing body is founded on the fact of the Bishop of Exeter and Dr. Bradley having been two members of the body. No objection is or could be taken to the other distinguished members of the body, and the decision is impugned solely on the ground that it was produced by the undue and improper influence of the Bishop and Dr. Bradley. [His Honour, after reading and commenting on Dr. Temple's letter of 7th Dec. 1869, Dr. Hayman's letter of 10th Nov. 1870, and the resolutions of the old trustees, continued:] It is, I think, to be regretted considering all that passed upon the appointment of Dr. Hayman, that the Bishop of Exeter and Dr. Bradley should have allowed themselves to be put on the governing body, while Dr. Hayman continued to be head-master. At the same time I am far from saying that I am bound to consider that two such men, when put in the responsible position of governors of this school, with quasi-judicial duties to perform, were incapable of throwing off the opinions which they had entertained two years before. [His Honour, after describing and commenting on the three subjects of dispute, which had arisen between the plaintiff and the assistant masters, after the appointment of the new governing body, and the resolutions of the new governing body in reference thereto, continued:] The real question is, whether this resolution is valid; and it must be so if it is the result of the fair and honest opinion of the governing body. Subject to the question of the construction of this Act, which I have already disposed of, it is admitted by the plaintiff's counsel that no objection can be taken to any of the governing body, except the Bishop of Exeter and Dr. Bradley. Can I attribute any improper motive to them ? Their character and position renders that all but impossible. If they took the course they did upon an honest conviction that it was right, and that it was not for the good of the school that Dr. Hayman should remain there, can I say that, as members of the governing body, they were not entitled to act upon that conviction? A man's scholarship may be perfect, his character admirable, and yet for want of the power to control subordinates and govern boys, he may be wholly unfit for a schoolmaster. I am not attributing-I do not attribute-this unfitness to Dr. Hayman. On the contrary, I believe that he would have succeeded in the management of the school, if he had had a fair chance, but that he had not. Still the governing body are entitled to act upon their own opinions, uncontrolled by this court, if their opinions are fairly and honestly entertained. And I am unable judicially to come to the conclusion that they were not. It is to my mind plain, that a state of things existed at Rugby in December last, which made it imperative for the governing body to do something, or the school must have gone to destruction. Whether it was proper to remove the assistant-masters, or the head-master, was for them, and not for this court, to determine. To them the Legislature has left the decision of such questions, and so it must be left by this court, unless I can see that the decision has been arrived at for some improper, corrupt, or collateral object. I am unable to see that any such object has actuated the able and distinguished body of men who were parties to the resolution of PAGET V. EDE. [V.C. B. 19th Dec. last. If it had not been for the unfortunate part taken by Dr. Temple and Dr. Bradley in 1869, I am satisfied that the decision would not have been questioned by Dr. Hayman in this or any other court. Therefore, apart from the question of the serious charges contained in this bill, I should, on principle, come to the conclusion that I am not authorised judicially to interfere with the decision of the governing body. [His Honour, after reading paragraphs 11, 41, 88, 114 and 135, continued:] The allegation of personal interest on the part of the Bishop of Exeter and Dr. Bradley, is so unsustainable, that I must disregard it. Bias they may have had. As to the allegation that such a body of men as these, twelve in number, were overwhelmed and swayed by the Bishop of Exeter and Dr. Bradley, it is impossible to suppose that such a body of men were incapable of expressing a judgment of their own. Therefore I must treat this allegation as mere allegation of the pleader. The allegations in paragraph 135 can hardly be regarded as allegations of fraudulent conduct. They amount only to strong charges of opinion of unfitness: and the cases of Munday v. Knight, Gilbert v. Lewis and other cases of the same class, show that general charges, such as of fraud, when not sustained by particular circumstances stated in the bill, will not do; any more than a general charge that property is held on trust will do, as was decided in the case of Grenville-Murray v. Lord Clarendon. There the allegation in the bill was, that property in the hands of the Foreign Secretary was held in trust for the plaintiff. Although there was a demurrer, the demurrer was held not to amount to an admission of the trust, merely because the bill alleged it but without stating facts to show the existence of the relation of trustee and cestui que trust between the parties. Upon the whole, therefore, I am sorry to be obliged to come to the conclusion that the bill does not show a case for the iuterference of the court. The demurrer will therefore be allowed, but without costs. At the close of the judgment it was arranged that the demurrer of the Bishop of Exeter, which had been filed, but not set down, should be treated as set down, and allowed without costs. Solicitors: Bower and Cotton; Iliffe, Russell, and Iliffe. V.C. BACON'S COURT. Reported by the Hon. ROBERT BUTLER and F. GOULD, March 17 and 18. Mortgage between Englishmen of an estate out of 66 It is a misapplication of words to call an equity of redemption an estate" in the proper technical legal sense. THE bill in this suit was filed to obtain a decree for foreclosure against the defendants, in respect of a mortgaged estate situate in the island of Nevis, in the West Indies. By an indenture of mortgage, dated the 25th Oct. 1845, and made between John Buckley Ed of the first part, John William Ede of the second part, Eleanor Mary Ede and Charlotte Ede of the third part, and William Adam of the fourth part, a certain tract of land, or plantation, situate in the island of Nevis, was granted by way of mortgage to the said William Adam. There was no power of sale. The parties were all English, and the mortgage was executed in England. The deed was registered according to the laws of Nevis. William Adam was adjudged bankrupt by the London Court of Bankruptcy in the month of June 1864. The plaintiffs were the official and creditors' assignees under the bankruptcy, and in the month of July 1872 they instituted a suit for foreclosure of the mortgage, and for appointment of a receiver. Kay, Q.C., and G. W. Lawrance for the plaintiff. -The court will make the decree for foreclosure, although the property is out of the jurisdiction. A decree for foreclosure is strictly personal; it does not order that the land shall be conveyed. They cited Toller v. Carteret, 2 Vern. 494 (where the mortgaged Maunder v. Lloyd, 2 Joh. & Hem. 718; Arglasse v. Muschamp, 1 Vern. 75; Chitty, Q.C. and Caldecott, for parties interested in the equity of redemption. A decree for foreclosure is a decree in rem, and takes away the land from the mortgagor. The equity of redemption is an estate in the land. [The VICE-CHANCELLOR.--The land has been conveyed and the right to redeem is a personal right.] It is laid down in Burton's Compendium that an equity of redemption constitutes an estate. In Fisher on Mortgages (2nd edit. vol. 1, p. 263) it is stated that This right or equity of redemption has been described sometimes as an estate, and sometimes as an interest or equitable right inherent in the land; and though strictly equitable, and capable of being enforced in equity alone, it is of so much consequence in the eye of the law that the law takes notice of it and makes it assignable and devisable. Like the estate itself it passes by transfer and devise, may be impressed with, and then becomes subject to the ordinary consequences of entails and other limitations, devolves according to the tenure of the actual estate, upon the real or personal representatives of the owner, and is subject to gavelkind, borough, English, and other customs which affect the ordinary legal ownership. Sect. 2 of the Dower Act treats an equity of redemption as an equitable estate in land, and not as a mere personal right, and Jones v. Jones (4 K. & J. 361; 32 L. T. Rep. O. S. 49), recognises that a widow is entitled to dower thereout. As to granting the decree for foreclosure there may be different rules as to foreclosure prevailing in the island of Nevis, and a decree according to our law might bring the laws into conflict. In the case of Re Trant (Seton on Decrees, p. 1007), a receiver had been appointed by this court of an estate in Ireland, and a direction to the tenants to attorn had been inserted. There was no such practise in Ireland, and it was held on the question coming on again that the direction to attorn ought not to have been inserted. Penn v. Lord Baltimore was a decree in personam. It is true that receivers of estates in the West Indies have been appointed, but no case is produced of a decree for forclosure of the estate. [The VICE-CHANCELLOR.-Is not appointing a receiver a proceeding in rem ? We [V.C. B. submit not. If the receiver were interrupted in the discharge of his office the proceeding of the court would be in personam against the person interfering by commitment. The bill prays a receiver as to which we admit that the court has jurisdiction. We could not, therefore, plead to the jurisdiction. They cited also Norris v. Chambres, 29 Beav. 246, 255; 3 De G. F. & Jo. 583, 584; 4 L. T. Rep. N. S. 345. Jackson, Q. C. and Caldecott, for other defendants. Broderick for trustees. Kay, Q. C. in reply. This is not like a case of partition, where boundaries have to be set out. That is a proceeding in rem. The court will not assume that if foreclosure is decreed, the court abroad will not act upon it. The mortgage is made by Englishmen in England. Norris v. Chambres was decided by Lord Campbell, on the ground that there was no contract between the plaintiff and defendant. He referred also to Westlake on International Law, pp. 56, et seq. The VICE-CHANCELLOR.-Two points have been argued upon this occasion; one of them is as to the jurisdiction of the court. It is said that because no instances are referred to of a decree for foreclosure of land in any one of the colonies, therefore the court has not jurisdiction. One instance is referred to, and if I were to refer to my own recollection, I should have said that there have been many such decrees; but whether there have or have not been any decrees since the Sark case up to the present time, I cannot for a moment doubt the jurisdiction of the court and the right of the plaintiff to the relief he asks for in the exercise of that jurisdiction. Now, what is the case? It is the plainest and simplest that can be conceived. The owner of an estate in Nevis, subject to a certain charge or incumbrance, together with the persons entitled to that charge or incumbrance, agrees to make a security by way of mortgage. The deed is executed, the legal estate passes to the mortgagee, the formalities which the law of Nevis requires in the way of registration are complied with, and the legal estate is clearly and plainly in Mr. Adam; he has become bankrupt, and his assignees are the present plaintiffs. Then what remains ? The equity of redemption. It is said that that is an "estate." It is by a figure of speech only that it can be called an estate. It may be in some instances that a husband may have a title by curtesy, and that gavelkind and borough English may apply to it. All these are necessary consequences of the law which recognises the interest of a mortgagor in his equity of redemption, but they do not alter the nature of the interest; they do not create an estate; and, in my opinion, it is a misapplication of words to call an equity of redemption an estate" in the proper technical legal sense. That it is a right is beyond all doubt a right which may be enforced in this court, and which is recognised by the record in this case. I am then threatened with this, that I know nothing about the law of Nevis (which is quite true-nothing judicially), and that I cannot make this decree, because it may lead to incenvenient consequences and to some conflict of law in Nevis. I do not conceive the possibility of any such thing happening. If there were any foundation for the suggestion it ought to have appeared in the pleadings. The decision of the court ought to be asked upon the subject, and there is no trace of any such thing in the pleadings, but only a vague suggestion that this court has not jurisdiction. As I am satisfied that it is a jurisdiction which has been very frequently employed in the case of appointing receivers of mortgaged estates in the colonies, and as I cannot entertain any doubt that the court has a right as between the English mortgagor and the English mortgagee to enforce that personal contract between them, although one of the consequences of it may be to vest in the plaintiffs the absolute interest in the mortgaged estate, which at present is qualified only by the existence of the equity of redemption, I cannot hesitate for a moment in saying that the suit is properly brought in this court, that it is brought for the purpose of having the account taken, of realising the estate if it should be necessary, and giving to the mortgagor the opportunity of redeeming it if he thinks fit to do so. Upon the point of jurisdiction there is in my opinion no reason whatever for doubt. Plaintiff's solicitors, Lawrence, Plews and Co. Defendant's solicitors, Shum and Co., for Green and Moberly, Southampton. March 14 and 17. BARTON v. HOBSON. Creditor and debtor-Agreement to take less than original debt-Default of debtor-Remitter. A. obtained a judgment against B. for a sum of 5631. 12s. 10d., but agreed to take 2001. in discharge, B. giving three acceptances for that sum, and depositing some waggons as security. If none of the bills were paid at maturity the judgment to be enforceable against B. The last of the bills would mature in March 1871. B. subsequently made payments on account of the bills, and another settlement of account took place in March 1871, when A. claimed 1181. 118. 5d., as the balance due on B.'s three acceptances, and it was agreed that B. should give his acceptance for that sum in full of all demands under the three acceptances or otherwise, and deposit certain title deeds as security. B. did not pay the bill for 1181. 11s. 5d. at maturity, but tendered the money four days after it had been presented to his bankers, which A. refused, declining also to give up the waggons and title deeds. Held, that as B. had not performed the terms of the first agreement, A. was remitted to his original right as existing at that time, and was at liberty to enforce the judgment. ON the 9th of May 1869, the defendant brought an action at law against the plaintiff for 5431. 38. 4d. as being the balance due on an unsettled account, in respect of certain bill transactions. The plaintiff did not admit the claim, but considered that the defendants were bound in equity by a certain agreement into which they had entered with him, but not being in a position to carry on the litigation, he endeavoured to arrange terms for a compromise. Pending the negotiations the defendants signed judgment in the action on the 2nd August 1869. Subsequently the following agreement was entered into between the parties: Memorandum of agreement made this 8th Sept. 1869 between Vincent James Barton. . . . of the first part and Stephen James Hobson and Thomas Everingham Smith.... of the other part. Whereas the said Hobson and Smith recovered a judgment against the said Vincent James Barton on the 2nd Aug. 1869 for the sum of [V.C. B. 5631. 12s. 10d. And whereas the said Vincent James Barton not being in a position to pay the same has agreed with the consent of the said Hobson and Smith to pay to them their executors administrators and assigns the sum of 2001. in satisfaction and discharge of the sum of 5631. 12s. 10d, in manner following that is to say "the said Vincent James Barton is to give his acceptances for 1007. payable in six months and for 501. payable at twelve months and 50l. payable at eighteen months to be from the date of these presents the acceptance of 1001. secured by the deposit of thirty end tip waggons and in the event of the acceptance for 100l. not being met at maturity then the said Hobson and Smith shall be at liberty to realise the security held by them but upon payment by the said Vincent James Barton of the acceptance for 100l. then the whole of the before-mentioned waggons held by the said Hobson and Smith shall be given up to the said Vincent James Barton but in the event of neither of the bills being met at maturity then the judgment debt of 563l. 12s. 10d. shall stand and be enforceable against the said Vincent James Barton after deducting therefrom the amount realized by the said Hobson and Smith by the sale of the said waggons deposited with them. It is hereby further agreed that the said waggons deposited with the said Hobson and Smith shall be insured by them the amount so paid by them for such insurance together with any other expenses the said Hobson and Smith shall incur or be put to with reference to the said waggons shall be paid by the said Vincent James Barton. In pursuance of this agreement the plaintiff gave the defendants his three acceptances, namely (1) Acceptance for 100l., which matured on 11th March 1870; (2) Acceptance for 501., which matured on 11th Sept. 1870; (3) Acceptance for 501., which matured on 11th March 1871, and deposited with them the thirty waggons. The bill then stated that the terms of the ageeement of the 8th Sept. 1869, touching the payment of the 2007., were subsequently varied by mutual consent, and that the defendants accepted payments on account by sums in cash and by bills, which the defendants discounted, one of such bills being an acceptance by Messrs. Hipkins for 6661. 6s. 7d. Messrs. Hipkins' acceptance was not paid by them, and thereupon the plaintiff became liable for it. In the month of March 1871, another settlement of account took place between the plaintiff and the defendants, when the defendants claimed 1181. 11s. 5d., as the whole amount due to them upon all accounts whatsoever in respect of the plaintiff's three acceptances for 100l., 50l., and 50%., given in pursuance of the agreement of the 8th Sept. 1869, and it was agreed that the plaintiff should give his acceptance for 1181. 118. 5d., in full satisfaction of all claims and demands which the defendants had against the plaintiff, whether under the said three acceptances or otherwise, howsoever; and that payment of the acceptance for 1181. 118. 5d. should be collaterally secured by an equitable mortgage of freehold property of the plaintiff. Par. 40 of the bill stated with reference to the bill for 1181. 11s. 5d. : The plaintiff accepted and handed such bill so accepted over to the defendants as aforesaid, and they took the same in full satisfaction of all claims and demands against him. The defendants admit that the said acceptance for £118 118. 5d. was given and taken upon the terms that if it were duly paid at maturity it should be in full satisfaction of all claims which at the date of the said acceptance they had against the plaintiff under the said agreement of the 2nd Sept. 1869. But in fact no agreement or stipulation whatever was made as to such acceptance being paid at maturity, save as appears by the said acceptance itself and such acceptance was given and taken as aforesaid not only in full satisfaction of all claims which at its date the defendants had against the plaintiff under the said agreement of the 8th Sept. 1869 but also in full satisfaction of all claims whether in respect of the said acceptances 100l. 501. and 501, or otherwise howsoever. The acceptance for 1181. 11s. 5d. matured on the 17th Sept. 1871, but that day being Sunday, it became payable on the 16th. The plaintiff called on the defendant Hobson on the 13th, and also on the 16th Sept., wishing to have his acceptance renewed, but Hobson declined to say anything about its renewal in the absence of Smith, who was then out of town, but on the 18th Sept. he was told by Hobson that the defendants declined to renew, and on the same day the acceptance was, without further notice to the plaintiff, presented to his bankers for payment where it was not paid. On the 20th Sept. the plaintiff offered to pay the acceptance, but the defendants refused to accept payment. The defendants at this time held the following acceptances: plaintiff's acceptance for 1181. 118. 5d., Hipkins's dishonoured acceptance, and the three acceptances given by the plaintiff under the agreement of the 8th Sept. 1869, also several accommodation bills and trade bills of the plaintiffs. There was some conflict of testimony as to what took place between the maturing of this acceptance and the 21st of Sept. 1871. On the 21st Sept. 1871, the defendants caused the plaintiff to be served with particulars of demand in bankruptcy consisting of 4631. 148. 9d., being the balance of the judgment debt recovered in the action. The plaintiff again made an offer to pay the acceptance for 1181. 11s. 5d., but his offer being refused he filed his original bill against the defendants; praying that upon payment by the plaintiff of what was due on the acceptance for 1181. 118. 5d., the defendants might be ordered to deliver up the same and also the other bills of the plaintiffs, and the said waggons and title deeds, and that they might be restrained from taking any proceedings in bankruptcy or law in respect of the said judgment or acceptance for 1181. 11s. 5d. By an order made in the suit the plaintiff was to pay the amount due on the said acceptance, and the defendants undertook not to commence any proceedings at law or in bankruptcy in respect of the said accceptance or judgment and not to dispose of the said waggons and title deeds without the leave of the court. On the 9th May 1872, the bill was amended stating that the amount due on the acceptance had been paid to the defendants, and the summons in bankruptcy dismissed, but the defendants refused to give up the waggons and title deeds, and claimed to treat the payment made by the plaintiff of the acceptance of 1181. 118. 5d., as payment on account of, and not in satisfaction of, the said judgment debt, and Hipkins's dishonoured acceptance, and prayed a declaration that upon payment of the acceptance for 1181. 118. 5d., the plaintiff became entitled by virtue of the agreements of the 8th Sept. 1869. and March 1871, to have delivered up to him the waggons and title deeds, and also the said several acceptances for 1181. 118. 5d., 1007., 501., 501. and 661. 68. 7d., and that the defendants might be restrained from commencing any proceedings in bankruptcy or at law upon the said judgment or acceptance. Swanston, Q.C. and Locock Webb, for the plaintiff. The acceptance of the bill of exchange for 1181. 118. 5d. was a satisfaction of the judgment [V.C. B. debt and of all existing claims, and it is not the less so because it was dishonoured. It was not a case of voluntary indulgence on the part of the defendants. The payment on account and the deposit of the waggons and title deeds closed the matter. Kay, Q.C. and Chitty, Q.C. for the defendants.If a creditor stipulates with a debtor to take a less amount than his debt, to be paid on a particular day, and it is not paid, the right to the larger sum remains unaffected. It is not a case of penalty. There need not be any express contract as to remitter to the original right. The acceptance of payments on account did not amount to a waiver of the defendants' right. Swanston, QC., replied. The following cases were referred to: Thompson v. Hudson, L. Rep. 4 E. & I. App. 1; 2. Ch. 255; Ex parte Bennet, 2 Atk. 527; Davis v. Thomas, 1 Russ. & My. 506; Ford v. Earl of Chesterfield, 19 Beav. 428; Northcote v. Duke, Amb. 512; Lewis v. Jones, 4 B. & C. 513. The VICE-CHANCELLOR said that many of the cases which had been cited did not touch the present case. The transactions of Aug. 1869 were the subject of an action at law, on which judgment was recovered; that was the point at which his Honour took up the case. No attempt had been made by the defendant to the action to set that judgment aside. Then the agreement of the 8th Sept. 1869 was entered into, specifying distinctly the rights of the parties. Nothing could be more clear and explicit than the agreement. What had happened which should deprive the agreement of its full force and vitality? The payment of the three bills mentioned in the agreement did not take place, therefore the right to enforce the judgment obtained at law remained. Could that right be affected because the present defendants had received some part of the bill for 1007.? [His Honour then read from par. 40 of the bill, and continued]. What word is there here to release the plaintiff from his obligation? If the agreement was as was alleged, it could not be that the bills, whether paid or not, were to be in satisfaction of the defendant's claims. The plaintiff's own case was, that when the bill for 1181. 11s. 5d. became due on the 16th Sept. 1871, he made default in payment. The stipulations in the agreement then became binding. There was a conflict of testimony as to what occurred afterwards; but, looking at the evidence, it seemed impossible to say that there had been any satisfaction. Reference had been made to a number of cases, but none of them laid down any new law. This was not a case of a penalty, it was merely requiring the debtor to do that which he was bound to do. It was a case of a written agreement a satisfaction expressly stipulated for and not performed. In his Honour's opinion the judgment at law remained in full force. The tender made by the plaintiff after default did not assist his case. It was a hard case for the plaintiff, but he was bound by the agreement, and the defendants were remitted to the rights they had when the agreement was made. The bill must be dismissed with costs. Plaintiff's solicitors, Harper, Broad, and Battcock. Defendant's solicitors, Linklater and Co. |