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Er parte CLEGG.-In the matter of DOUGLASS.

C. R. December, 1833.

Where there are cross accep

tances, and the right of set off

clear, the Court

will restrain the assignees from

THE petition in this case stated that there were cross acceptances between the petitioners and the bankrupt, that the bankrupt's were dishonoured, and a fiat having issued against him, the petitioners refused to pay the bill which they had given the bankrupt, insisting on their right to set off, whereupon the assignees commenced an bringing an action against them on the bill. The prayer was, that the petitioners might be declared entitled to their set off, and the assignees restrained from proceeding in the action.

Mr. Swanston and Mr. K. Parker for the petition were stopped by the Court.

-

Mr. Twiss and Mr. Rogers for the respondents :The remedy in this case, if any, is by set off at law. Injunctions are only granted where there is an equitable defence, though not a legal one. (a) The only case in which such an injunction was ever granted is ex parte Minnett, 1 Rose, 395, the ground there being that the commissioners had actually found that a balance was due from the person bringing the action.

THE CHIEF JUDGE:-There is no doubt that any party has a right to come into this Court for relief

(a) Equity grants relief in all cases where there is an equitable but not a legal set off, James v. Kynnier, 5 Ves. 108. But it has been said, that there is not any

difference in bankruptcy between

a set off in law and in equity,
ex parte Flint, 1 Swanst. 55. If
a party neglect to plead a set off
at law, he cannot afterwards
come to equity for relief. Ex
parte Ross, Buck, 127.

action.

1833.

Ex parte
CLEGG.

In the matter

of DOUGLASS.

against the assignees, in respect of all acts done by them as such. This is the ground of the interposition of the Court in the case of short bills. The question of costs should stand over, because it is possible to conceive that the conduct of the assignees in bringing this action has been so improper as to require that they should pay costs personally, though I do not pretend to anticipate such a result. The action must be stayed in the meanwhile.

Sir John Cross: - This is a petition to restrain the assignees from an improvident expenditure of the estate in pursuing an action, in a case where set off must succeed at law. I think the injunction ought to go.

Sir George Rose : - I apprehend there can be no question but that these bills may be set off at law, and that the action must be stayed. The only question is, who is to pay the costs of this petition. In order to decide that, we must ascertain what were the motives of the assignees in bringing an action, when they might have called the petitioners before the commissioners, who would have taken the account, and have stated the balance, on whichsoever side it might be. We must, therefore, send this case to the commissioners, to pursue an inquiry relative to these questions. But nothing that can be supposed to arise in the course of such inquiry can prevent the injunction going in the mean

time.

Injunction to stay action granted. An inquiry to be prosecuted before the commissioners. Costs to stand

over.

Ex parte LUCAS.-In the matter of OLDHAM.

In

IN 1829 Oldham agreed to lease certain premises to
Edge, who thereupon entered into possession.
March 1831 a commission issued against Oldham,
in July 1831 a commission issued against Edge.
assignees of Edge entered upon the premises,
elected to take the agreement, whereon a draft
was tendered them by the assignees of Oldham,
taining a covenant not to assign, which they refused to

execute.

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and

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The

rupt, and the

and

to take a lease,

lease

it seems the

Court have not

con

assignees agree

jurisdiction to enforce specific performance

In this case the

to interfere.

This was a petition by the assignees of Oldham, pray- Court refused ing that the assignees of Edge might be ordered to execute the lease.

Mr. Swanston having read the petition, Sir George
Rose said, The questions were,

1st. Whether the assignees agreed to accept the
lease?

2d. Whether there be jurisdiction over the assig-
nees?

3d. Whether, if there be, this Court will enforce
specific performance?

Mr. Swanston and Mr. Geldart : —

Assuming the fact that the assignees agreed to accept the lease, the question is as to the power of this Court to enforce specific performance; a power which it is in the discretion of courts of equity to exercise or not. But this discretion is not arbitrary, being guided by the circumstance whether or not damages would be an adequate compensation; and the only qualification of the rule is, that parties coming to equity for specific performance must themselves do equity; so that if there

1833.

Ex parte
LUCAS.

In the matter

of OLDHAM.

be any circumstances of fraud the Court may refuse to interfere; but its discretion is bounded by such circumstances, and where they are wanting the Court is bound by every rule to interfere. As there is no want of equity in this case, the only question is, whether the Court has power to interfere, which it has, both the parties being bankrupt. (a)

Formerly, when bankruptcy petitions were heard before the Lord Chancellor, the Court, on all occasions where it was practicable, shifted cases over from its jurisdiction in bankruptcy, to its more enlarged jurisdiction as a court of equity.

The distinction between equity and bankruptcy consisted in this, that in bankruptcy,

1st. The evidence was on affidavits;

2d. There was no appeal;

3d. There was less deliberation than in equity.
None of these reasons now apply.

[Sir George Rose:-In the proposed lease the assignees
would be personally liable, and not merely as assignees ;
what jurisdiction then have we over them? Erskine,
C.J.: If assignees take a lease under ordinary circum-
stances, they are only liable while they keep it: they
may assign, and get rid of that liability. (b)
If they
were compelled in this case to sign the lease, and be-
come personally liable, assignees would never adopt
agreements for leases, however beneficial.]

In fact they have adopted this lease, and the liabilities

(a) See ex parte Edwards, charge themselves. 1 Atk. 100.

(b) If assignees accept a lease, for the purpose, as it seems, of discharging the bankrupt, they may, it has been determined, assign it to a beggar, and dis

Onslow v.

Corrie, 2 Madd. 330. See some observations by Sir S. Romilly as to the act called his act. The part which is in italics is an inference from the case, which, as it may not be correct, is in italics.

consequent thereto are the result of such adoption, which was in their own election.

In ex parte Fector, Buck, 429, Lord Eldon ordered the assignees to repay a deposit to a purchaser, even after the commission had been superseded. In ex parte Gould, 1 Gl. & J. 231, the Court compelled a purchaser of part of the bankrupt's property to complete his purchase. In that case the Court exercised jurisdiction for specific performance as fully as any court of equity could do. There the party was a purchaser ; here the parties are assignees, which makes a much stronger case for the interference of the Court. In ex parte Tomkins, Sugd. V. & P., App. xi., Lord Eldon decreed specific performance against the assignees, they having appointed puffers to bid for a mortgaged estate sold under the order of the commissioners, and two lots being knocked down to them.

[The CHIEF JUDGE:-That case goes no further than this, that assignees are bound to indemnify the estate from the consequences of their acts.]

As to their personal liability on actions by landlords for rent on leases which they have elected to take, the smallness or total want of assets would be no answer; they must personally pay the rent, if there be no assets.

In the very important case of ex parte Cowan, 3 B. & Ald. 123, the Judges defined their opinion of what was the jurisdiction of the Lord Chancellor in bankruptcy. Lord Tenterden says, "A petition in bankruptcy is festinum remedium, and it contributes not less to the saving of expence than the saving of time. The proceeding under the commission operates by way of sudden seizure of property belonging or supposed to belong to a bankrupt. A process so speedy and summary requires to be controlled by a speedy and summary course of relief." And again, "We think

1833.

Ex parte
LUCAS.

In the matter

of

OLDHAM.

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