Bishop v Church

Case 260.-anonymous, Michaelmas Term, Nov. 10, 1748. The defendant being a prisoner in York gaol, and the demand so trifling it would not bear the expence of removing him by habeas corpus to the Fleet, it was moved, to save this expence, that for want of appearance the bill might be taken pro confesso : the court refused to do it in this summary way. After the act for making process in courts of equity effectual against persons who abscond, there was a doubt whether it extended to bills of review, but it is now settled that it does, and therefore the plaintiff must have recourse to the ordinary remedy. Mr. Wilbraham moved that a bill of revivor might be taken pro confesso against a defendant, a prisoner in York gaol for want of an appearance, without the expence of removing him by habeas corpus to the Fleet and bringing him into court, as the demand against him by the bill was so trifling that it would not bear the charge of the journey from York. Lord Chancellor said, he could do nothing in this summary way, but the plaintiff niust proceedrin the Usual method pointed out by the 5th of the present King, c. 25, the 3ATK. 691. BISHOP V. CHURCH 1197 act " for making process in courts of equity effectual against persons who abscond and " cannot be served therewith, or who refuse to appear"; and though for some time after making this act there was a doubt whether it extended to bills of revivor, where defendants refused to appear to such bill, yet it is settled now that it does; and therefore you must upon this occasion have recourse to the ordinary remedy (vide Henderson v. Miggs, 2 Bro. Cha. Rep. 127), and his Lordship denied the motion.

238 BISHOP V. CHURCH 2 VES. SEN. 371. [371] bishop . church, July 25,1751. Vide S. C. [with note] ante, 100, and Supplement, 288, 363.-Relief in equity, on an instrument which had been drawn by mistake as a joint bond, and in respect of which the remedy at law was gone ; the nature of the transaction implying the obligee's right to demand the consideration from the parties severally. (See Thomas v. Frazer, 3 Ves. 399. Burn v. Burn, ibid. 573. Gray v. Chiswell, 9 Ves. 118,124, 125. Per Lord Eldon, C., 10 Ves. 227, and in Ex parte Kendal, 17 Ves. 519, 525, &c. See' also ante, 100; and the references; more especially Summer v. Powell, 2 Meriv. 30, and Devaynes v. Noble, 1 Meriv. 529, 539, 544, 547, &c.) The solvent obligor being dead, the demand available in equity both against his executor and heir, though the real estate was liable only in default of the personalty. Though a legal obligation, and penalty may have become void at law, the condition of it is considered in equity, as an agreement to pay, regard being had to the nature of the consideration. (See the references above.)-[Supplement, 363.] This cause coming on again after the examination of Mr. Clive, it was insisted, that the heir at law of James Church was in this case not bound; and that whenever the heir at law' has the good fortune not to be named, there is no instance of that defect being supplied against him. Lord Chancellor. The grounds of the decision in this case lie in a very narrow compass. I am very glad of this further examination, it giving a great light and satisfaction as to the equity, and more than I expected, strengthening my opinion on the first question; for there were two questions in the cause : first, whether the plaintiff has an equity to recover this debt against the representatives of Church 1 The second, supposing there was, whether there was not a rebutting equity for the defendants to bar that as lost by neglect of his own 1 My opinion upon the first is strengthened, by what appears in this examination, though not intended for that; for it appears, the 2000 borrowed on these two bonds is confessed to have been borrowed in the course of trade as partners ; as appears from a bill brought by the executors of Church against Selim Owen; farther also, in that very bill the plaintiffs pray, these bonds may be discharged as affecting the assets and effects of James Church : so that they were liable out of assets of their testator to make satisfaction for those bonds : which is a very strong corroborating circumstance on the first point, and is an answer to all the distinctions attempted at the former hearing. But this has also given a great light, and furnishes an answer to all objection against plaintiff's recovering; viz, whether Bishop had not been guilty of so gross a neglect of recovering, or preventing the representatives of Church from recovering, as to lose his remedy in a court of equity as well as he had lost it at law ? Every thing arising between Owen and the representatives of the deceased partner is intirely out of the case in respect of the plaintiff and of Bishop in his life; for nothing they could do as between themselves without his consent, could at all vary the right or remedy Bishop had either against Owen in law or equity, or against the representatives of Church in equity : it was all res inter olios acta. Bishop might indeed by his own act part with his right by his behaviour, and rebut the equity, he would otherwise have : but upon Clive''s applying to him to get in the money of Owen, Bishop tells him, he is content with the security; the interest is paid him, and therefore he is not obliged to do so. A man may make that answer ; because he likes the [372] interest he receives, and has no objection to the security : but surely nothing arising from thence will bar him from any remedy in law or equity. He has his election. As to the farther request, repeated more than once, for putting the bonds in suit in his name to recover the money of Owen, I am of opinion, he was not obliged to do that but upon such terms, as he offered to do it, and the only terms on which a court of equity would give relief; for I am not to inquire, whether a man might not act more kindly or generously. Where a just debt is due, a demand against one in law and equity, and against another in equity, if a bill had been broughts the court would have relieved on payment of the principal and interest to Bishop, and leaving them to recover that against Owen to prosecute that decree in Bishop's name : but no relief would be, until after the representatives of Church had paid the money. The terms, on which Bishop agreed to dive's proposal, were on paying him off his bonds. That is the strict equity between man and 2 VES. SEN. 373. BISHOP V. CHURCH 239 man as well as of a court of equity; and whether he would have acted more kindly in letting them have his name to put the bonds in suit, to regard that, would make such remedy very precarious. There are several instances of mortgages, where there are many attempts by a mortgagor to pay them off, and reasonable offers of payment (post, 678; 2 Eq. Ab. 603 ; 3 Atk. 90. In 2 Wms. 378, it is said, to stop interest there ought to be reasonable notice, and the money must be kept dead from the lender, as the property is to be uncore prist) ; yet if a strict tender is not made, the court cannot stop the interest: though cases may be, where the court wish to do it: that of acting a more generous kind part, if mortgagee had taken it, is not what the court is to go by. Nothing of that kind was done or tendered to Bishop : no offer of payment at all. It is not reasonable, taking it strictly, to expect that from any man having two bound for his debt. A man who has received his money, is safe in all events; therefore out of...