The Sun.
London, England, 1821-12-04 00:00:00

LA Wr

COURT OF CHANCERY, DPc. 3.
nom) wrtivAii,T. • --
Mr. HEALD, on the part of the ddendant, rose to move the
dissolution of an injunction.which had;been,ontailied under cir-
cumstances Which he would state to the Court, The case with
regard to pleadings was extremely longebut in point of facts it
was very short. The plaintiff's nal stated,.-that• the plaintiff
was a partner with his brothel: Jones Bold, and Richard Greg-
son, who together carried on the business of African -merchants
at Liverpool The plaintiff alleged that he was the senior
partner of the firm, and alone had the power of drawing and
accepting bills. The plaintiff stated that his partner (Gregson)
had entered into some transactions With whirls the defendant
(Stewart) was connected, for the purpose of defrauding the.
firm, and then proceeded to describe those transactions. He
said that a person of the name of Dickenson, residing in this
country, but who had a son living at. Brazil, washed.to send an
adventure to that country ; but 'having no money of his own, it
was agreed by him and'Gregson that,lad- should draw bills upon
Gregson, which Gregson should accept:' ThoSe bills were tube
placed in the hands of Mr. Stewart, thi; defendant, Who, in his
turn, was to accept other bills to be dratn upon him by. Dicken-
son. The latter bills were to be discunted,toldefray the ex-.
pence of the projected esiventhr,4„ '4.43 arrangement was. car-
ried into effect. It Was provid4llAK,When- tregson's asap,
tanzes became due, they weretti...tve,Woeiftd once, and no more.
The Plainfill'allpgja, that when the bills 'became due, it was
agreed between • the defendant and Grregson that the latter
Shauld renew the acceptances, not in his own name, but in the
name of the firm. Dickenson, some time after the transaction,
became a bankrupt. - Mr. Stewart-was obliged to pay the .bills
which he had accepted for Dickenson, and he, in consequence, .
applied to the firm of Bold and Co. to pay the bills which had
been accepted by Gregson, and placed in hiss hands. The plain-
tiff refused to pay the bills, alleging that Gregson had'fraudu-
lently accepted them. At that time Jonas Bold was abroad, '
and Gregson had absconded. Mr. Stewart entered-an action
against all the partners, and-Jonas Bold and Gregson not ap-
pearing, a writ of outlawry was issued against them, and it. was
to stop ttie proceedings under the outlawry that the injunction
-was prayed for. The original bill of the, plaintiff was first
filed on the 11th of August, but it was several times amended,
and at length the plaintiff filed a supplementary bill on The
20th November. In the supplementary bill-the plaintiff stat-
ed that the Sheriff of the County had taken possession of
the partnership books and effects, under the writ of outlawry
against two of the partners ; and he prayed that the Sheriff
might be stayed from further proceedings under the writ. The
plaintiff's bill was argued on the 21st of November, and the in-
junction granted. It was a most extraordinary circumstance
that the facts contained in the plaintiff's bill were not supported
by any affidavit. - The Court could not have been aware of that
circumstance at the time, for he had never known an instance'
in which an injunction was granted on ex-parte statement, un-
supported by affidavit. He (Mr. Heald) did not mean to say
that the Court had done wrong in granting the injunction, but
Ile thought that it would not have granted it, had it been aware
that there was no , affidavit in support of the facts stated in the
plaintiff's bill. "He believed that he •had omitted to state no
tact which was material in the plaintiff's case, and he would.
now proceed to state the defendant's case from the- answer which
he had filed on the day the injunction was grantgd, although
lie presumed his Learned Friend Mr. Hart wastnot aware of
that fact when he applied for the injunction, as he had not men-
tioned' it to the Court. The defendant admitted that Mr.
Henry Dickenson, who resided at Para, in.Brazil;' had entered
into an engagement to supply the government of that district
with naval stores. In order to carry that engageinent into ef-
fect, Mr. Dickenson, the father of Mr. Henry Dickenson, enter-
ed into a treaty with the house of Bold and Company of Liver,
_pool, and not with Mr. Gregson only, by which it was arranged
that Mr. Gregson should accept bills, and give them to Dick-
ensoia, with the full knowledge of the firm. In order to prove
that the plaintiff was cognizant of the transaction between Mr.
Gregson and Mr. Dickenson, it was sworn that the bills, which
on the face of -them purported to be drawn on account of the
Para transaction, were indorsedby the plaintiff himself. flow,,
therefore, the plaintiff could have represented to the Court that
lie was ignorant that Mr..Greg,son had accepted bills for Mr..
Dickenson on account uEthe Para adventirfe, it was ditifdtilt to
understand. The defendant might rest his case on that fact,
that the bills bearing evidence on the face of them that they
were on account of the Para adventure were indorsed by the
plaintiff; but he went further. He said that the bills upon
which the proceeding at law was founded were not bills given
on account of the Para adventure. It appeared that the house
of Bold and Co., being in a declining state, had been in the
habit of drawing bills in the name of the firm, and placing them
in the hands of brokers at Liverpool in order to satisfy their
exigencies. The three bills in question were drawn by the firm,
and placed in the hands of Barton and Co., brokers at Liver- -
pool, who were creditors of Messrs. Bold and Co., and Mr.
Stewart obtained possession of those bills by advancing mo-
ney upon them. Such was the answer given to the plaintiff's
original bills and if his Learned Friend should find it difficult
to reply to that, they would find it much snore difficult to re-
ply to the answer which had been filed to the supplementary bill.
It stated positively that the plaintiff was privy to the transaction
between Gregson and Dickenson, which was only asserted on
belief in the answer to the original bill. It was also stated that the
plaintiff had contrived to get possession of a vessel and her cargo,
valued at 10,0001., which he had sold by private contract, and
applied the produce in the payment of his own separate debts,
and not in liquidation of the joint debts of the firm. Under
these circumstances, he called upon the Court to dissolve. the
injunction; because, whilst the defendant was prohibited from
recovering his debt, the property of the firm might be all dis-
tributed. -

The LORD CHANCELLOR said he had no doubt, that when
Mr. Hart applied for the injunction, he stated every thing which
he thought material to be stated, and it was only through inad-
vertence that the Court had overlooked the circumstance that
there was no affidavit in support of the bill. - The ground on
which he had granted the injunction was, that the proceedings
under an outlawry might be assimilated to a seizure of goods
under an execution. In the case of an execution against the
partner of a firm, the Court would interfere to regulate what
property the sheriff should sell, because it was it was a rule in
equity that the interest of a partner could not be taken until he
had settled his account with his joint partners. The Court,
however, had done wrong in granting the injunction upon a bill
unsupported by affidavit. It the plaintiff had any equity, he
must support it in one of two ways,—either by affidavit, or by
the contents of the defendant's answer. Under these circum-
stances, therefore, he was of opinion that the injunction must
be dissolved.

Mr. BART, for the plaintiff; said, that he had originally ob-
tained the injunction without adverting to the merits of the bill
at all. The question which the Court-had to decide was simply
whether plaintiff, as one of three co-partners, was to be liable
for bills in the possession of the defendant, which had been ob-
tained by fraud, with which, it was alleged, the defendant was
connected. It appeared that Gregson, one of the co-partners,
had absconded ; air. Jonas Bold, the other partner, was in
Africa ; and the plaintiff was left alone to meet the dethands of
the defendant. The defendant became the plaintiff at law, and
issued bail-writs against the three partners. Air. Isaac Bold,
the plaintiff in equity, gave bail to defend himself at law. The
other partners did not appear, and were outlawed in the usual
manner, at the instigation of the defendant. The defendant
was then at liberty to bring his action against the plaintiff, in
order to decide whether or not he was liable for the bills ; but,
instead of pursuing that course, he had issued a common at-
tachment against the outlaws, and directed the sheriff to sum-
mon an inquisition, to inquire what goods and chattels the out-
laws had, and to take possession of them. The sheriff had in
consequence seized the books, and was .about to take possession
of every atom of property belonging to the partnership, when
the plaintiff applied to the Court for relief. If the sheriff were
to be permitted, because two partners were unwilling to defend
themselves at law; to seize all the property of the firm, includ-
ing that of the partner who was willing to meet the action, the
partnership would be irreparably injured. The sheriff gave
notice of his proceedings to all persons connected with the firm,
and the consequence would be, that so much confusion and em-
barrassment would ensue, that it would be impossible to carry
on the business of the firm. The Learned Gentleman con-
cluded by expressing his confidence that the Court would
maintain the injunction, and not permit the property of a co-
partnership to be made liable for the separate debt of one of
the firm.

The LORD CHANCELLOR, said, the circumstances of the
case were certainly very peculiar, and bore no resemblance to
those of any other case which he had been called upon to de-
cide. He was of opinion, that the plaintiirought not to be pro-
tected by an injunction, without pledging hirnself in any way
to the truth of the facts stated in his bill. If the defendant
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