1841.-Gibbs v. Glamis. referred only to the 4th edition, and represented that nothing but what was contained in that edition, was comprised or intended to be comprised in the defendants' publication; and, consequently, that the advertisement complained of, did not hold out to the public, that the defendants' work contained any matter which was the exclusive property of the plaintiff: that although it further alleged that any additional or other matter which was contained in any edition subsequent to the 4th, was spurious and of no value, that allegation, if untrue, was no subject for an injunction, although it might be the subject of an action, as being a libel on or disparagement of the plaintiff's edition. GIBBS v. GLAMIS. [*584] 1841 18th February. A. instituted a suit against B. and C. respecting a sum of 4,000l., D. also was made a party to the suit; but, having no interest, he disclaimed. A., B. and C. after wards came to a compromise, in pursuance of which they executed a deed, assigning the 4,000l. to trustees, in trust to pay to D. his costs of the suit, and to di vide the rest of the fund amongst A., B. and C. D., though he was not a party either to the compromise or to the deed, filed a bill against A., B. and C. and the trustees, to compel a performance of the trusts and payment of his costs. A de. murrer by C., for want of equity, was allowed. In 1838, a suit was instituted, by the late Rev. Selby Hele, against E. Fernie and R. Hibbert, respecting a sum of 4,000, being the arrears of an expired annuity of 400l. which had been granted by the Earl of Strathmore. Lady Glamis, S. B. Heming, and D. Heming, also claimed to be interested in the 4,0007. In November, 1839, the several claimants came to a compromise; in pursuance of which a deed dated the 9th of that month, was made between Fernie of the first part, Hele of the second part, Lady Glamis of the third part, the two Hemings of the fourth part, Hibbert of the fifth part, and Alexander Gibbon and Edward Western of the sixth part; and thereby, after reciting, amongst other things, that the parties to the deed of the first 1841.-Gibbs v. Glamis. five parts, had agreed to compromise their claims to the 4,000%, and to have the same divided in manner thereinafter mentioned; those parties assigned the 4,000, to Gibbon and Western, in trust, in the first place, to defray the costs, charges and expen ses, of all the parties to the deed, in or about the suit of Hele v. Fernie and others, or of the deed, or otherwise relating to their claims on the 4,000l., as between solicitor and client, and also the costs of Gibbs, who was a defendant to that suit, and also the costs which Gibbon and Western might be put to in recovering or receiving the 4,000l.; and, in the next place, to pay 800l. to Hibbert, and 1,800l. to Hele, and the residue of the 4,000l. to Lady Glamis in full satisfaction of their respective claims on that sum; and the parties thereto of the first [*585] five parts, released *each other from all actions, suits, claims and demands, in respect of the 4,000. The bill in this cause, to which Gibbon, Western, Hele's executors, Lady Glamis and the two Hemings, were defendants, after stating as above, alleged that the plaintiff was a defendant to the suit instituted by Hele, but that he had not any beneficial interest in any of the matters in question therein; and that, before the date and execution of the deed of the 9th of November, 1839, he appeared and put in his answer to the bill in Hele's suit, and disclaimed any beneficial interest in the 4,000, the plaintiff being, in fact, (if at all a necessary or proper party to the said suit,) only a formal party thereto; but that he incurred costs therein to a considerable amount, all of which still remained unpaid; that Gibbon and Western had received all or a considerable part of the 4,000l., and to an amount more than sufficient to pay the costs, charges and expenses of all the parties in or about the said suit of Hele v. Fernie, and of the deed, or other wise relating to their claims on the 4,000%, as between solicitor and client, and also the plaintiff's costs provided to be paid by the deed, and also the costs which Gibbon and Western had been put to in recovering or receiving the 4,000l., and that they had, in fact, out of the money received by them, paid all such costs, charges and expenses, except the plaintiff's costs, and had paid to Hibbert and to the executors of Hele, certain sums of money 1841.-Gibbs v. Glamis. on account of the 800l. and 1,8007: that, on the 19th of February, 1840, the plaintiff gave a written notice to Gibbon and Western, that he had sustained considerable costs in the suit of IIele v. Fernie and others, and that such costs were unpaid, and that he was ready to have the same taxed: that, on [*586] the 23d of May, 1840, Gibbon and Western sent, to the plaintiff, a letter which, after acknowledging the receipt of the notice, was as follows: "Having received such notice, we think it right to inform you that we are about to carry the trusts of the deed into execution without delay, and, in case you have any claim against us, as such trustees, for costs in the said suit, we request you will forthwith inform us by what right you make such claim, and what is the amount of it:" that, the plaintiff being absent from home when the letter was sent to him, his clerk, on the 30th of the same month, sent, to Gibbon and Wes tern, a letter as follows: "Hele v. Fernie and others-Gentlemen: In answer to your letter of the 23d instant, I must refer you to the deed of the 9th day of November, 1839, under which you act as trustees for, amongst other purposes, the payment of Mr. Gibbs's costs of this suit, and to the notice, dated the 19th day of February last, which he served on you, and which you admit the receipt of. In his absence from town, I beg to send you, herewith, his costs of the suit, and which he will be willing to have taxed, according to the notice he served on you." The bill further stated that, on the 26th of June, 1840, Messrs. Western and Son, the solicitors of Gibbon and Western, sent, to the plaintiff, a letter as follows: "Sir, Messrs. Alexander Gibbon and Edward Western, as the trustees under the indenture of the 9th day of November, 1839, mentioned in your notice to them. of the 19th day of February last, having proceeded to carry into execution the trusts of that indenture, summitted your notice and their letter to you of the 23rd day of May, and your reply of the 30th, with the bill of costs which accompanied the latter, to Lady Glamis, for her directions how to act, considering her, as being the cestui que trust under *the indenture of the 9th of November, 1839, en- [*587] titled to the residue of the funds therein mentioned, as 1841.-Gibbs v. Glamis. principally affected by your claim, upon the fund for costs. Lady Glamis, in reply, has given the trustees notice that she objects to your claim, and denies that you are entitled to be paid any such costs out of the fund, and requires the trustees not to pay you any such costs thereout. Under these circumstances, the trustees have, for the present, set apart and retained, in their hands, the sum of 99l. 12s. 6d., the amount of the bill which ac companied your letter of the 30th day of May, and paid over the remainder of the fund already come to their hands. We have now, on behalf of the trustees, to require you, forthwith, to take such steps as may be requisite or proper to substantiate your claim for costs, and also to give you notice that, in the event of your not establishing your claim within a reasonable time from the date hereof, the trustees will pay over the 997. 12s. 6d. to the parties entitled to the residue of the trust fund under the trusts of the deed." The bill charged that all the defendants had an interest in the execution of the trusts of the deed; and that, if Gibbon and Western had paid, out of the trust fund, any part of the 8007. and 1,800l. provided to be paid to Hibbert and Hele, without having paid, to the plaintiff, his costs of the suit of Hele v. Fernie, they had committed a breach of trust. The bill prayed that the trusts of the deed of the 9th of November, 1839, might be performed under the direction of the Court; and that Gibbon and Western might be made answerable in respect of the trust money under that deed; and that the plaintiff's costs, thereby provided to be paid, might be paid to him. Lady Glamis put in a general demurrer. [*588] *Mr. Wigram and Mr. Lovat, in support of the demurrer: A person who is not a party to a contract, cannot enforce it. Consequently, the bill cannot be maintained; for the plaintiff seeks, by it, to obtain the benefit of a deed to which he is not a party. If A. contracts with B. to pay money to C., without consideration, it has been decided that C. cannot compel A. to pay the money. It is true that the bill alleges that the 4,0007. has been received and in part applied, by the trustees, pursuant to the directions in the deed. Those circumstances, 1841.-Gibbs v. Glamis. however, have been relied on, in other cases, and have been held to be insufficient to entitle a person not a party to a deed, to enforce it. Garrard v. Lord Lauderdale;(a) Walwyn v. Coutts.(b) It is impossible for any case to be more decisive upon the point than Garrard v. Lord Lauderdale. There the solicitor of the defendants and of the Duke of York, wrote a letter to the plaintiff, informing him that the Duke had made an assignment of his crops and other effects at Oatlands, to the defendants, for the benefit of the plaintiff and the other creditors whose names were contained in the schedule to the deed. In the present case, the letters which the defendants and their solicitors wrote to the plaintiff, were of a totally different character; they were, in fact, a repudiation of the plaintiff's claim. The deed was made, not for the purpose of creating a trust in favor of the plaintiff, but for the purpose of carrying into effect an arrangement which the parties to it had made for their own benefit. Acton v. Woodgate;(c) Bill v. Cureton;(d) Ex parte Pye.(e) *Mr. Lovat said that the subject of the deed, in this [*589] case, was a chose in action; that an assignment of a chose in action carried nothing with it at law; that it was nothing more than a contract; and that there was no case in which it had been held that a trust could be created, as to a chose in action, of which a person not a party to the deed, could claim. the benefit. Mr. Knight Bruce and Mr. E. Montagu appeared in support of the bill; but, THE VICE-CHANCELLOR, without hearing them, said: I think that this demurrer ought to be overruled. The case is extremely different from Walwyn v. Coutts, Garrard v. Lord Lauderdale, and the other cases referred to. In the first place, though, at the time when the deed was ex (a) Ante, Vol. III. p. 1. () Ibid. 14; and 3 Mer. 707. (c) 2 Myl. & Keen, 492. (d) Ibid. 503; see 510 and 511. (e) 18 Ves. 140. |