1856.

JENKYN

v.

VAUGHAN.

subsist, the Court, having its attention drawn to that, has made a decree in favour of the creditor.

In this case I find sufficient primâ facie evidence to lead me to the conclusion that something still remains due in respect of the debts which existed at the date of the deed; there is sufficient primâ facie evidence to justify me in directing an inquiry.

I put aside the mortgage debt secured on the policies of insurance. The policies, so far as the mortgage debt extended, were the property of the mortgagee; and what was retained and settled was only that which remained after satisfaction of the mortgage debt; I put that aside.

But, as to the debt to Bouverie, there is sufficient evidence to induce me to direct an inquiry. The evidence on that debt goes to this,-that to the best of the knowledge and belief of the witness the debt consists of a balance of monies advanced by Bouverie to Concannen, some part of which at least was antecedent to the date of the settlement.

It appears to me that that justifies inquiry; and there are besides various claims, which may turn out to establish debts due at the date of the deed remaining unpaid.

But, in addition to the circumstances arising out of this debt and the claims, it appears that the property which Concannen left is extremely trivial; and at his death it is proved that he was indebted to the extent of many thousands; so that it is not unnatural to suppose that there are still debts unsatisfied which were due at the date of the deed.

As to the intention to delay creditors, it is not immaterial that both deeds are made with general powers of revocation, which enabled the settlor to deal with the property, and that he retained possession of the deeds till the time of his death; and it does not appear that any notice was given to any of the insurance offices. All these circumstances are not, it is true, conclusive of fraudulent intention; but they have an important bearing on the question of fraudulent or improper design.

I think, therefore, that I ought to direct inquiries, which will be in the usual form, the form adopted in the cases cited.

1856.

JENKYN

v.

VAUGHAN.

1856: 16th and 17th January.

Lien.

A., being interested in a moiety of a cargo, and having entered

into a contract with B. to let

him have half his share, wrote to C. and D.,

HOLROYD v. GRIFFITHS.

MESSRS. Dickens and Holroyd, some time in 1840, entered into contracts in India for the purchase of certain boxes of indigo for a sum between 60,000l. and 61,0007. Part was paid by bills, which were duly honored, and upon which nothing turned; 100,000 rupees remained to be paid by Holroyd. Holroyd made a sub-agreement as to his moiety with Mr. Thomas, and it was agreed between the consignees, them that the 100,000 rupees should be paid by them informing them, jointly; and, to carry this into effect, Thomas drew upon and authorizing them to sell the Holroyd, and Holroyd accepted, two bills for 50,000 cargo and carry rupees each, of which one was to be paid by Holroyd the proceeds to their separate and one by Thomas. The indigo was consigned to accounts. The Griffiths & Co. in London for sale, accompanied by a consignees letter from Dickens and Holroyd, directing them to sell acted upon this, and made the indigo on their joint account. To this letter was advances to B., added a postscript by Holroyd, informing Griffiths & Co. that he had given over half his venture to Thomas, and directing them to carry to their respective accounts the profits of account sales accordingly. This letter been agreed between A. and B. was dated the 16th March, 1840. Griffiths & Co. that they should sold the indigo by the end of 1841, and carried pay for the the net proceeds, after deducting their charges, &c., as directed, half to Holroyd's separate account and half to Thomas' separate account. Subsequently Holroyd

and B. also

charged his in

terest in favor

of E. It had

cargo by two bills, each to be paid by one of them. B. did

not pay his

wrote to countermand his postscript, but not before Grifbill; it did not fiths & Co., treating the half carried to Thomas' separate appear whether

A. had paid it

account, had entered into transactions with him and or not-Held, made him advances on the faith of its being his property; that A. had no

lien on the proceeds of B.'s share, either as against him, as against

C. and D., or against E.

and Thomas, acting on the same assumption, had made an equitable assignment of so much of it as remained due to him from Griffiths & Co. to Briggs & Co., other Defendants. Holroyd duly paid his bill for 50,000 rupees; Thomas never paid his. The bill was filed by Holroyd against Griffiths & Co., Thomas, and Briggs & Co., and proceeded on the allegation that Holroyd had paid Thomas' bill for 50,000 rupees; and it prayed a declaration that he had a lien for it on the proceeds of Thomas' share in the hands of Griffiths & Co., for the purpose of making good to the Plaintiff, and indemnifying him against all sums, losses, &c., incurred and to be incurred by him in respect of the bill for 50,000 rupees; and that an account might be taken of such losses, and that the amount might be raised and paid out of the proceeds remaining in the hands of Griffiths & Co. The evidence showed that Thomas' bill had never been presented to Holroyd, and that he had never paid any part of it, except thus far,-that the agents of the vendors, long after the bill became due, informing him that it was not paid, and that they must make Thomas pay, and, being in want of money, he gave them a bill for 20,000 rupees. Whether he had ever paid that bill or any part of it did not appear, nor did it appear whether it was given specifically in part payment of the 50,000 rupees bill or as a distinct accommodation transaction. The remaining material facts are noticed in the judg

ment.

Mr. Swanston and Mr. G. L. Russell, for the Plaintiff, argued, that the transaction between Holroyd and Thomas was a partnership transaction, that Griffiths had due notice of that fact by the letter, and that, notwithstanding the postscript, they could not repudiate that notice; that therefore they held the proceeds subject to a partnership

1856.

HOLROYD

v.

GRIFFITHS.

1856.

HOLROYD

v.

GRIFFITHS.

lien, and had no right to deal with it as Thomas' separate property.

Mr. Baily, for Griffiths & Co.

Firstly, there is no evidence that the Plaintiff has paid anything. There is no statement in the bill that the bill for 20,000 rupees was given, and it is only on the reexamination of the Plaintiff that it appears; but there is no proof whatever that it was paid. In fact it is clear it was not paid. It got into the Union Bank on the failure of the vendor's agents, and it was bought for the Plaintiff; what he gave for it he cannot recollect, and therefore it is not shown that he ever paid anything on Thomas' bill. The allegation of the bill is that he has paid; the evidence does not support that, nay, it contradicts it. The Plaintiff must recover on the case made by his bill, and he fails in proof of it, and the bill ought to be dismissed on that ground.

Next, Griffiths & Co., to whom the consignment was made, had express directions from the Plaintiff to transfer the share of Thomas to his separate account. Their duty was therefore, as to the net proceeds, to carry over one-fourth to Thomas' account. They sold the goods under that authority, and under the same authority they did in their books carry over one-fourth of the balance to Thomas' account. After that, if ever there was lien, it was gone. We obeyed the Plaintiff's order. After that, Thomas had a legal right to the money, and the Plaintiff can make no further claim upon us. What we did was equivalent to placing the goods in Thomas' warehouse, or paying him actually the money. But they say we took with notice of the partnership. The answer is, the Plaintiff's letter is positive; we were to carry over the amount to the account of Thomas. If ever there was