The British Press; or, Morning Literary Advertiser.
London, England, 1825-02-09 00:00:00

THE BRITISH PRESS.

LAW IN7'FLI.IGENCE.

COURT OF CHANCERY, TUESDAY, Fia. &

ERR% V. EVERETT, WAI.NER. AND co.
This was an appeal from hi, Honour the Vix.Chancellor. The
question was, whether an injunction to restrain suing out execution
upon a bond should be discharged or continued. His Honour had
been of opinion that, under the circumstances, the iejunction
ought to lie discharged. The Solicitor-Orr:nal yenteilay sought
before his Lordship to reverse thin judgment, and to continue the
injunction. The short facts of the case a ere these. In 1814 a
Company was formed. proposed to be incorporated by Act of Par-
liament, called the Bayswater Spring Company. and the defend.
ants, Messrs. Everett, AValker, and Co., were the banker* to the
Institution formed for the manufacture of stone pines for the ton-
'cermet of water through London. The principal managers and
eltroolioldern of this Company were Mr. Richard Hill, Mr. ll:nry
Wright, Mr. George Bolton Mainwaritig. and Mews. Everett
and Co. The shares were of lOW. each, and Mr. Mainwaring
agreed to take tl2 of them at a sum of 2.2001. A bond was cxe.
toted he Mr. Mainwarirg for the payment of thin sum, and the
plaintiff. Mr. IValpole Erre. became surety in the bond for that
sum of 2.2001. Upon this bond legal proceeding. had been inci-
toted against Mr. Eyre, a VellliCt pronounced. and the injunction
had been obtained before b Honour to restrain suing out execu-
tion. The gtottnds upon which this injunction rested were many;
first, that the fact, stated in the bond were not correct, and that in
truth the res fern( therein contained had n
a subsequent bond won executed bykol xieitence
in:arine! in"°nd' favourthosfi
Mr.
Messrs. Everett and Walker. for the ROM of 10,1661., and that the
rum of 2.2(01. was included in that larger amount. Besides these
two ground's, there were others equally conclusive, founded upon
the Act G (leo. 1. c. IR. No Act of Parliament was ever period or
Charter :ranted to form the Company, no certificates were made
out. and no money had actually been paid. An action had been
brought in the Court of Common Pleas, and a decision had Leen
pronounced against the present plaintiff.
The Sciatem rna.Grornot. referred to the Act 6 Geo. 1.. and
argued that it wan applicable only to vendors snd vendors in a
tranitaction, and not to sureties, who might be drawn in without
having any interest whatever in the matter. There were penalties
of premunire mentioned in the Act, which, if the construction
were otherwise. would not be quite so agreeable to the present
plaintiff. end others in a similar predicament. Ile conceived,
therelSoe, that the object of the Act was to annul a contract, as
between tenant. and vendee only. He entitled to a case, Law v.
the Fast India Company, where a surety had actually paid money
for hie principal, and a here the money wan refunded, the Court
having declared that it was prematurely paid. in the present rase
no money bad been raki,, end he eppreiggoied that upon these
several mounds the injunction should he continued.
Mr. WYATT. on the Same side, thought his Lordship would
not he now prepared to decide, whether the case did or did not fall
within the Act of fr Geo. I.
The LORI) CHANCELLOR agreed that it was a point of consi•
dereble importance. and lie should he isnwillng to say any tiling
which might be any way prejudicial to any parties. As the matter
now stood, if, in a writ of error, the House of Lon!' should rive
no opinion favourable to the plaintiff, then there would be no neva.
Finn for thin injanction ; and If against him, of course no injunc-
tion could be obtained upon that legal ground.
Mr. Ilene proposed that the portent argument should be ion:_
pencil until the legs] question was decided, and di: Lord Chin.
cellor consented to that Course.
Mr. Ileol.n, however, who wan for the defendant wlth fir.
Hart. objected to this proceeding, and Mr. Wyatt continued his
ohs rvationn, omitting all argument upon the Act 6 Cleo. 1., as
irrelevant in the present state of the question.
Thin day the Loan CHANCTetOR called upon Mr. Wyatt to
proceed in this case. Ile wished first to make one observation ; he
observed in the sixth nr seventh plea. the parties had pleaded that
this transaction was within the Stock Jobbing Act ; the plea W 44
denied, and then both parties put themselves upon the counoo.
Now, was this the usual way is which it was ascertained whether
or not transactions were within the meaning of an Act of Par-
liament ?
Mr. H.IIIT thought it was not, unless followed up by parole
evidence.
Mr. WYATT said, if there was any difficulty about bringing a
writ of error, he was quite sure his Lordship would direct an Issue :
all he could say wan, that the Court below felt no difficulty with
resorts to the form of pleading. There wits only ore circumstance
which he omitted to state yesterday, vehich Its row meant to trou-
ble his lordship with, and. which was, that as the but d for 2.003,'.
was raleulated in the bond for 10,0001, and also in the insignment,
the old sureties were discharged by the panics having taken a new
surety.
Mr. llorot appeared to oppose the motion. This was an appli-
ration for an injunction upon equity contemn' by the answer.
Front whet his Lordship had observed yesterday with respect to the
bond. Mr. Hart thought he might take this bond to be a legal
available bond, and capable of being enforced in a Court of Law,
and then the question was. whether the concomitant circumstances
were sufficient to authoriz- the defendants at law to call upon a
Court of Equity to bind the hands of the plaintiffs. and thereby to
prevent their having that benefit which a Court of Law tells them
they are entitled to have? Mr. Hart then recapitulated the cit.
curnstaneea attending the formation of the Company. These trees-
actions, be was willing to admit, had worked greater mischief and
more irreparable cumin to thousands of families, than ern did the
South Sea snecolationn ; and were at this moment causing more
'messiness in die city of London, tuna any public arecuiation could
coosibly cause. TMs. heoever, he (Mr. Hart) washed to imprtss
on bin Lordshiti'a mind, was not one of those public speculations,
which deserved the character that many of the ',resent tossing tem-
porery trinwlctiora merit.
Hi. LonostrtP said. if he understood thane speculairons (and he
was far from being able to say he did fully understand some of
them) many of them had in view what might be exceedingly laud_
able ; butt still, as Maie of them, conducted in the same way.
might operate as cheats and frauds. the Legislature bad until
words, which, for a time, included the one class as well as the
other.
Mr. FIART considered, that in this case he was relieved from tie
legal construction.
His LORDSHIP thought so too: became, where on application
is made to this Court for an injunction, a question of law might
arise, which it in lust an competent for this Court to decide as it is
competent for a Court of law to decide; hut whether this Court
will take upon itself to decide will depe• II greatly on the conduct
of the parties', particularly where they had been before at law. In
this case the parties had had a trial in the Court of Common Picas;
there was a judgment, and also a writ of error to the Court of
King's Bench ; there was a judgment of the Court or Kite's Bench
ardent it party who had not thought proper to argite the question
in that Court ; and as a winding up. his Lordship wan now told,
there wax a writ of error to be brought to the Horse of fiords. His
' Lordship felt himself autftori•serl to say, that if there be a question
to be argued in the Court of !Clog's Bench. and the parties choose
to pens by that Court nod go to the House of Lords, they are, by
an doing. neither treating the Howie of Lords well, nor taking
those steps the policy of the law required should be taken ; because
the Legislature, in giving the suitor the advantage of an appeal to
1 the House of Lords, meant that a correct judgment should lie given
1 an anon as possible, and that time House of Lords. in decilirg :he
question. should have the orivanta,gc of the judicial opinion of the
t Courts below. Therefore, upon reflection. his Lordship was of
1 opinion that lie was bound to confine himself, and to cordite hlin-
self only to equitable grounds in this case. Ili. Lordship could
not 'Link that any man could be no extravagantly will as to say,
, that a great nosey of those speculative trausa,:tions were carried on
i by honest men, and aith honest intentions; and the heginlattint
i may be indocesi hereaPet, with a view to protect hottest men from
the cheats and frauds of some of these transactions, to name Atone
that have useful objects in virw ; nod therefore. those who are now
engaging in therm shossla take great care that those in which they
engage are such as shall be by the Legislatuie included in thisie
I they will declare to have useful object,. in view. This hit Lordship
considered as an extremely important caution to many very honest
men.
Mr. Hisao said, in this ease there never was any ale -rtisement
• gent forth to the world. inviting such persons to purchase shares is
I thin Company as could purchase them.
His Lou:taut', wished the Isearned Counsel not to understand
that he meant to say this was not such a Company an he described,
but :he defendants at law had put Mr. Hart's clients nn the recnel
in the Court below, as on, of thine Mupanies that are so prolific
at the present moment. If they had proved their record, thin Court
would he bound to take it tribe so ; boo if they had no: proved it,
then his Lordship hilt' nothing to do with it.
Mr. llone contended, that this was a mere.private partnership
between a Certain number of most respectable gentlemen ; nor had
it any thing about it to entitle it to tl e apuellation of a bobble.
W hen he said he considered himself relieved from tl:e argument on
the legal cooatructior, it was not bccanne he conceived this Court
at all incompetent to deride the question. One of the serious ob.
jections merle by the %VT!, Pa], that the shares purchased had not
been immediately transferred to Mr. Mainworing. In answer to
this it was only necessary to sat, that the eminent the sale war
made, notice wax given to Mr. Foster, the clerk of the eurnosnv,
that Menton. Everett had Redd their sixty. six shares to Mr. Main.
Waring. and nothi•tg more could be required. Another objection
was, that the bond which bad been given never sae a deed, but
Mr. Hart could smote the Court that the bond was not delivered as
an escraz. And with respect to the last objection, that the old
surety wan discharged, because the two thousand pounds was cal-
culnted as Mr. Wyatt bad stated, it was but necessary to say the
fact wan not so.
Mr. ii EAU) follesrod. This was a bill filed, not ()nit after action
hit-uella but after verdict obtained, and which the Court would
_._