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, action. 1833. Ex parte 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 execute. and 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 1st. Whether the assignees agreed to accept the 2d. Whether there be jurisdiction over the assig- 3d. Whether, if there be, this Court will enforce 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 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. [Sir George Rose:-In the proposed lease the assignees 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 In the matter of OLDHAM. |