Cochrane v Green
| Jurisdiction | England & Wales |
| Judgment Date | 26 November 1860 |
| Date | 26 November 1860 |
| Court | Court of Common Pleas |
English Reports Citation: 142 E.R. 176
IN THE COURT OF COMMON PLEAS AND IN THE EXCHEQUER CHAMBER
S. C. 30 L. J. C. P. 97; 3 L. T. 475; 7 Jur. N. S. 548; 9 W. R. 124. Applied, Agra and Masterman's Bunk v. Leighton, 1866, L. R. 2 Ex. 65; Thornton v. Maynard, 1875, L. R. 10 C. P. 638. Dicta disapproved, Middleton v. Pollock, 1875, L. R. 20 Eq. 29. Distinguished, Ex parte Morier, 1879, 12 Ch. D. 498. Discussed, Manley v. Berkett, [1912] 2 K. B. 333.
, . cochrane v. green. Nov. 26th, 1860. o J /, f% 3 t L- .^f" [S. C. 30 L. J. C. P. 97; 3 L. T. 475; 7 Jur. N. S. 548; 9 W. R. 124. Applied, Agra and Masterman's Bunk v. Leighton, 1866, L. R. 2 Ex. 65 ; Thornton v. Mayitard, 1875, L. R. 10 C. P. : . Dicta disapproved, Middletmi v. Pollock, 1875, L. R. 20 Eq. 29. Distinguished, Kx parte Morier, 1879, 12 Ch. D. 498. Discussed, Manley v. Berkett, [1912] 2 K. B. 333.] The plaintiff having claims against the defendant for the enforcement of which he had instituted a suit in Chancery, it was agreed, that, in consideration that the plaintiff would forbear to prosecute the suit and abandon the same and his claims, the defendant promised that he would, out of the first moneys he might receive from W. in respect of his claims upon him arising out of the B. railway contract, hand to the plaintiff the sum of 5001., and, out of any further moneys he might receive from W. in respect of the same contract, 101. per cent, upon the net amount which benight so from time to time receive, until such percentage to the plaintiff should amount to 13J)01., when all further payments by the defendant were to cease,-it being understood and agreed that the defendant would not compromise with W. wiihout providing fop the plaintiff the above-mentioned 13001., or so much of it as might remain due to him according to his promise.-One payment only (of 20001.) baring been made to the defendant by W. in respect of his claims arising out of the B. railway contract:-Held, that the plaintiff was only entitled to the 5001. thereout, and not to 101. per cent, on the residue thereof.-In an action to recover the 5001., the defendant pleaded, as to 3391., that, before the commencement of the suit, the 9 C. B,(N. 8.)449. COCHRANE V. OREEN 177 plaintiff was indebted to one S. S. in the sum of 81(91.; that the defendant, at the request of the plaintiff', agreed with S. S. to pay him the 3391., and S. S. agreed to accept the defendant as his debtor inste.ad of the plaintiff for that sum; and that the defendant was still liable to pay the same to S. S. :-Held, no answer to the plaintiffs claim, inasmuch as the plea did not shew that the plaintiffs liability to S. S. was discharged.-Where A. has a money demand against B., and B. (though a trustee) haa a money demand against A. which but for the intervention of the trust would have constituted a good legal set-off against A 's demand, the latter may be pleaded by way of equitable set-off. The first count of the declaration stated that theretofore, to wit, on the 5th of March, 1858, the plaintiff had certain valid and boria fide claims and demands against the defendantr and had, in order to enforce payment and satisfaction thereof, instituted a suit in the high court of Chancery against the defendant; and thereupon, to wit, on the day and year aforesaid, in consideration that the plaintiff would at the defendant's request forbear to prosecute the said suit, and abandon the same and his aforesaid claims and demands, the defendant promised the plaintiff that he the defendant would out of the first moneys he might receive from Mr. Watson, of Parliament Street, in respect [449] of his the defendant's claim upon him the said Mr. Watson, arising out of the Bahia railway contract, hand to the plaintiff the sum of 5001., and out of any further moneys he might receive from the said Mr. Watson in respect of the same contract 10 per cent, upon the net amount which he might so from time to time receive, until such percentage to the plaintiff should amount to the sum of l.'SOOl., when all further payments by the defendant were to cease; it being understood and agreed between the plaintiff and the defendant that the defendant would not compromise with the said Mr. Watson without providing for the plaintiff the above-mentioned 13001., or so much of it as might remain due to him according to his promise : Averment, that the plaintiff did accordingly forbear to prosecute the said suit, and did abandon the same and his aforesaid claims and demands ; and that all .conditions precedent, matters, and things requiring to have been performed and to have happened and existed to entitle the plaintiff to the full performance of the said contract by the defendant, and to maintain his action for the non-performance thereof as thereinafter-mentioned, were performed and did happen and exist before the commencement of this suit; yet the defendant to keep his said promise wholly failed, and had not at any time paid the said sum of 5001. or any part thereof, or the said sum of 101. per cent., or any part thereof. There was a, second count, for money payable by the defendant to the plaintiff for work done by the plaintiff for the defendant at his request, and for money received by the defendant to the use of the plaintiff, and for money found to be due from the defendant to the plaintiff upon accounts stated between them. filrst plea,--as to the first count, except so far as the same related to the sum of 5001; therein mentioned,-[450] that the defendant received from the said Mr. Watson no moneys whatever in respect of the Bahia railway contract over and above a certain suniipaid in 0119 payment, that is to say, 20001., and out of which the plaintiff became entitled to the said sum of 500L and no more. Demurrer, on the ground " that the plea on the face of it shews that more than 500L was received by the defendant, within the meaning of the agreement in the first count." Filth plea,-as to so much of the declaration as related to the sum of 4071. 4s., parcel of the said sum of 5001. therein mentioned,-by way of defence on equitable grounds, that the plaintiff', before the commencement of this suit, by his promissory note promised to pay certain persons trading under the name, style, and firm of John Eldred & Co., or their order, on demand, the sum of '2501. ; and the said persons, before the commencement of this suit, indorsed the said note to the defendant for a good, valuable, and sufficient consideration, who then became and was the lawful holder thereof and entitled to receive and recover from the plaintiff the full amount of the said note, but the plaintiff never paid or satisfied the amount of the said note or any part! thereof: tjiat the plaintiff, before the commencement of this suit, by his othef promissory not^ promised to pay the said last-mentioned persons, or their order, on demand, the su^n of 1571. 4s., and the said persons, before the commencement of this suit,'indorsed1 the said lastraentioned note to the defendant for a good, valuable, and sufficient consideration, who then became and was the lawful holder thereof and entitled 178 ooohp,.\nr r. ORKEN 9 c. b. cn, s.) i. to receive and recover from the plaintiff the full amount of the said last-mentioned note, but the plaintiff never paid or satisfied the same or any part thereof : [451] that afterwards, and whilst the defendant continued and was such lawful owner of the said nates and entitled to receive the proceeds thereof ami payment of the same, he the defendant handed over and delivered the said note to one Archibald Dunlop as tha trustee and agent of the defendant, and for hia the defendant's sole use and benefit, and without any value or consideration whatever, to the intent arid on the express terms and agreement that he the said Archibald Dunlop should take, receive, and hold them as such trustee and agent as aforesaid, and should sue the plaintiff upon them on behalf of the defendant, to recover the amount of the said notes, and should pay over the proceeds thereof to the defendant : that the said Archibald Dimlop always held the said notes on the said terms as such trustee and agent, and not otherwise, and that there was never at any time any value or consideration for1 his holding the said notes, except as aforesaid, but that, from the time of the said indorsements to the defendant, he the defendant was always entitled to receive the proceeds of the same : that, afterwards, and in pursuance of the said agreement, and at the request of the defendant, the said Archibald Durdop, as such trustee and agent as aforesaid, sued the plaintiff in the court of Common Pleas to recover the amount of the said notes ; and auch proceedings were thereupon had, that, by the consideration atid judgment of the said court, the said Archibald Dunlop recovered against the now plaintiff iristhe said action a certain sum, to wit, 4441. IBs., being the full amount of the said promissory notes, and also a certain other sum, to wit, 301. Is. 3d., for his costs about his suit in that behalf expended, which said judgment still remained in full...
To continue reading
Request your trial
- Kastor Navigation Company Ltd v AGF MAT (Kastor to)
-
Saudi Arabian Monetary Agency v Dresdner Bank AG
...either or both debts is or are held on trust the right of set-off would be determined by reference to the beneficial title – see Cochrane v Green 9 CB (NS) 448 a nd Thornton v Maynard Law Reports 10 CP 695 at 698 to 699." The judge referred to the fact that the claim, as originally pleade......
-
Saudi Arabian Monetary Agency v Dresdner Bank AG
...where either or both debts is or are held on trust the right of set-off would be determined by reference to the beneficial title —see Cochrane v Green 9 CB (NS) 448 and Thornton v Maynard Law Reports 10 695 at 698 to 699. 4 Following Dresdner's blocking of the account, SAMA wrote to Dresdne......
-
Manju Arjandas Uttamchandani and Another (Respondents (Plaintiffs) v Central Bank of India (Appellants
...in their letter of 1st February 1985. He relies on set-off in equity. 10 The starting point of the argument was Cochrane v. Green 9 CB (NS) 448. In that case the plaintiff had a money claim against the defendant. The defendant sought to set off an amount due from the plaintiff on two promis......