Green v Pledger
| Jurisdiction | England & Wales |
| Judgment Date | 29 February 1844 |
| Date | 29 February 1844 |
| Court | High Court of Chancery |
English Reports Citation: 67 E.R. 340
HIGH COURT OF CHANCERY
S. C. 13 L. J. Ch. 213; 8 Jur. 801.
[165] green v. pledger. Feb. 10, 24, 29, 1844. [S. C. 13 L. J. Ch. 213; 8 Jur. 801.] The leave of the Court is necessary in order to serve personally a party out of the jurisdiction with notice of a motion in a cause, although such party has been served out of the jurisdiction, under the stat. 4 & 5 Will. 4, c. 82, with the subpoena to appear and answer, and an appearance has been entered for him in the suit under that statute. If a party in a suit may be served out of the jurisdiction, under the stat. 4 & 5 Will. 4, c. 82, in respect of any part of the subject of the suit, the service is good for all the other purposes of the suit. It is not open to one Defendant, on an interlocutory application, to object to the irregularity of the service of, and appearance by, another Defendant, if such other Defendant, having notice of the application, does not himself object on the ground of such irregularity. The Court having interfered by injunction to restrain the payment of a legal debt, admitted by the debtor to be due to the nominal creditor, has then jurisdiction to decree payment of the debt against the debtor, without sending the party entitled to the payment to recover it by the use at law of the name of the nominal creditor. Circumstances under which the answer or disclaimer of one Defendant may entitle the Plaintiff to a decree in the cause, as against another Defendant, although the answer or disclaimer of one Defendant is not evidence against the other. This was a motion for payment into Court of the sum of .£500, due upon two promissory notes, one dated the 22d of September 1836, for the sum of £200, and the other dated the 16th of October 1836, for the sum of £300, both made by the Defendant, William Pledger, and both payable to the Defendant, John Angle; and also for an injunction to restrain John Angle from indorsing [166] the notes, so as to make them payable to any person other than the Plaintiffs, and from taking proceedings at law to recover the amount due thereon from the Defendant, Pledger. The facts of the case appear fully upon the judgment. Mr. Wood, for the motion. Mr. Anderdon, contrii. the vice-chancellor [Sir James Wigram]. The Plaintiffs are the official assignees and the creditors' assignees of Bernard Angle, a bankrupt. The Defendant, William Pledger, is the maker of two promissory notes, one for £200, and the other for £300, both payable to the order of John Angle. The case made by the bill is that Bernard Angle, the bankrupt, for the purpose of withdrawing his property from his creditors, placed it in the hands of his brother, John Angle ; and that John Angle has invested part of the assets of the bankrupt in the purchase of public stocks and funds of Great Britain, and lent other parts of such assets upon the security of promissory notes; that the monies due upon the said two promissory notes for £200 and £300 are part of the assets of the bankrupt, which were lent by John Angle to Pledger with notice of that fact; that John Angle, having been summoned to attend as a witness to be examined under the fiat against 3 HAKE, 167. GREEN V. PLEDGER 341 Bernard Angle, refused to attend, and ultimately absconded and went to Boulogne, in France, where he now remains. The two promissory notes are stated to have been found in the possession of John Angle by the messenger [167] under the fiat-to have been taken possession of by such messenger and delivered to the Plaintiffs. It is said, also, that John Angle, in December 1836, brought an action of trover against the Plaintiffs for the notes, and also an action of trespass; but the actions were not prosecuted, and in March 1838 the Defendants in the actions obtained judgment of non-suit: that the notes, not being indorsed by John Angle, the Plaintiffs cannot recover upon them at law, and that Pledger refuses to pay to the Plaintiffs the sums due upon the notes. The object of the suit is to recover the monies due upon the two notes; and to recover any stock belonging to the bankrupt now standing in the name of John Angle, and also all other property of the bankrupt held by John Angle. And the bill prays an injunction to restrain John Angle from indorsing the notes, except to the Plaintiffs, and from proceeding at law against Pledger. The Defendant, Pledger, has appeared and answered. He admits, without reserve or qualification, his liability to John Angle upon the notes, except as to a sum of £52, 10s., which he claims as a set-off. He ignores altogether the case of the Plaintiffs, not admitting that the money due upon the notes forms part of the assets of the bankrupt. He submits that he has not been, and is not now, bound to pay the two sums of £200 and £300, until lawfully called upon to pay the same to some person duly authorized to receive, and to give a discharge for, such sums. He submits whether he is properly made a Defendant to this suit, and whether the Plaintiffs are entitled to any relief against him upon this bill. But if the Court should be of opinion that, in the result of this suit, the Plaintiffs are entitled to the two notes, or the beneficial interest in or to the same, then he submits [168] that he ought to be considered a stakeholder and allowed the £52, 10s. and his costs. Under the late statute (stat. 4 & 5 Will. 4, c. 82) the Defendant, John Angle, was served at Boulogne with the subpoena to appear to and answer the bill; and an appearance was afterwards entered for him under the same statute. In this state of the cause, in January 1844, a motion was made by the Plaintiffs that Pledger might be ordered to pay the amount of the two notes with interest into Court; that the same, when paid in, might be laid out, and that John Angle might be restrained by injunction from indorsing the notes except to the Plaintiffs, and from proceeding at law upon the notes against Pledger.' When the motion came on it appeared that the Plaintiffs had, without the leave of the Court, served the notice of this motion upon John Angle at Boulogne; but, as I was of opinion that such service, without the leave of the Court, could not be treated as good service, the motion was ordered to stand over; and afterwards, on the 10th of February 1844, I made an order, upon the Plaintiffs' application, that service of the notice of motion upon John Angle at Boulogne should be deemed good service. The notice of motion has since been served upon John Angle at Boulogne, and the motion came on, before me upon affidavits as against John Angle, who did not appear, and upon the answer of Pledger. The effect of Pledger's answer I have already stated. The effect of the affidavits,, as between the Plaintiffs and John Angle, admits of no doubt. If an answer ad-[169] mitting that which appears upon the affidavits were put in by John Angle a decree as against him would be of course, for it would be admitted that the money lent upon the two notes, as well as the other money in question, was in fact the bankrupt's money. If John Angle appeared upon this motion, and no affidavit was offered in answer to the affidavits now before the Court, the question would be equally concluded for the purposes of the motion. And where the Defendant has been duly served with notice of the motion, and will not appear, I must consider the case to be the same as between the Plaintiffs and him (John Angle). The question, then, is upon the objections raised by the Defendant, Pledger. One objection was that the service of the subpoena and the entering the appearance were not authorized by the statute. (Stat. 4 & 5 Will. 4, e. 82.) The answer to this objection is that the suit does, as to some parts of the matters, relate to "money invested in Government or other public stock " (Id. sect. 1); and if service be good 342 GBEEN V. PLEDGEE, 3 HARE, 170. quoad hoc the service will be good for all the other purposes of the suit. But if the Defendant who is so served does not object-if he waives the irregularity (if any there be)-it is like an appearance gratis. The other parties cannot, in that case, complain of the manner in which the appearance of that Defendant has been enforced or recorded. It was then said that the liability of Pledger was purely a legal question, and that this Court would not try it, or do more than allow the Plaintiffs to use the name of John Angle. I will not say how the case would have been if the Defendant, Pledger, had suggested that [170] there was a question, however slight, as between himself and John Angle. That, however, is not his case; he asks only that he may not pay to anyone who cannot give him a discharge, and that the Court is bound to attend to. But he is not so wild or regardless of his own interests as to subject himself even to the risk of costs by raising any question between himself and John Angle; and, in such a case, the Court will not, pro forma only, send the case to law where there is nothing to try. In the late case of Pearce v. Creswick (2 Hare, 286) the jurisdiction of the Court was exercised on similar grounds. Pledger was properly made a Defendant, with a view to the injunction; and if there...
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