Lord Cranstown v Johnston
| Jurisdiction | England & Wales |
| Date | 1796 |
| Court | High Court of Chancery |
English Reports Citation: 30 E.R. 952
HIGH COURT OF CHANCERY
See Liverpool Marine Credit Co. v. Hunter, 1868, L. R. 3 Ch. 485; In re Hawthorne, 1883, 23 Ch. D. 748; Mercantile Investment, &c., Co. v. River Plate Trust, &c., Co. [1892], 2 Ch. 312; British South Africa Co. v. Companhia de Mocambique [1893], A. C. 626.
Lord cranstown v. johnston. Rolls. June 23d, 24^,, and. %9th ; July 5th, 1790. [See Liverpool Marine Credit Co. v. Hunter, 18G8, L. R. 3 Ch. 485 ; Inre Hawthorne, 1883, 23 Ch. D. 748 ; Mercantile Investment, &c., Go. v. River Plate Trust, &c.. Co. [1892], 2 Ch. 312; British South Africa Co. v. Companhia de Mocambique [1893], A. C. 626.] This Court having jurisdiction in personam upon equity arising out of transactions concerning lands abroad, particularly if in the British dominions, a purchase of an estate in the West Indies by a creditor under his own execution was upon the circumstances held only a security for the debt, the expences of the proceeding and incum-brances paid by him, with interest; and subject thereto a reconveyance was decreed. A single witness cannot prevail against a positive denial by the answer. The bill was filed upon the following case. After various dealings between the Plaintiff and Defendant previous to the year 1788, which produced a bill by the Defendant, they agreed to an arbitration. Upon the 8th of July 1789, an award was made, that Lord Cranstown should upon the 1st of March 1790, pay at Lloyd's Coffee House 3 YES. JUN. 171. CRANSTOWN (LORI)) V. JOHNSTON 953 2521,10s. (Jd. At the time of the award the Plaintiff was abroad, and he did riot comply with it. He was entitled to the reversion upon the deatli of his mother of a plantation in. the island of St. Christopher's', the average produce of which, was 5000 a-year ; and during the life of his mother he was entitled to an annuity of 300 charged upon that plantation. The Defendant immediately after the expiration of the time limited by the award procured an agent to institute proceedings in the island against the Plaintiff in his absence; and thereby obtained payment of the said annuity since the 25th of December 1789. The Plaintiff returned to England in 1791 ; and frequently offered to pay the Defendant, and requested him to come to an account: but he refused to refund; and after the expiration of the time commenced an action in the Court of King's Bench and Common Pleas in the island, obtained judgment, [171] and caused an execution to be taken out; and thereby the Deputy Provost Marshal of the island seized and put up to public sale the said rent-charge and reversion ; and the Defendant became the purchaser of both for 2000 currency; and a bill of sale and conveyance was executed to him by the said Deputy Provost Marshal; by means of which he was become entitled to his own use ; and 2000 currency being of the value of 1200 sterling, he claims to have a personal demand for the remainder of the sum awarded.-The bill made the following charges. At the institution of the suit the Plaintiff was not personally resident or present in the island, or at any place within the jurisdiction, nor at any time during the proceedings, nor since. No appearance was entered for him: no defence was made; nor was he served with process. The proceedings are therefore illegal and void. After the expiration of the time limited by the award the Plaintiff entered into a treaty with the Defendant for giving some satisfaction or security for the money awarded. Some correspondence took place ; and the Plaintiff offered to assign a mortgage, he liad upon an estate in the island of Nevis. On the 5th of March 1789, lie wrote to the Defendant that as soon as any thing could be determined with Mr. Waddell, he would appoint a meeting; and the Defendant might depend upon his doing every thing in his power to hurry the matter ; so that whatever application might be necessary to the Courts abroad might have a chance of being heard that year. That letter and the applications to the Courts therein mentioned referred to the treaty then on foot for the Plaintiff's assigning to the Defendant the said mortgage upon the estate at Nevis, and not in any manner to his interest in St. Christopher's or any proceedings at law there. Before the 5th of March 1789, and pending the said correspondence and treaty, the Defendant wrote to his agent directions for proceeding against tlie Plaintiff in the Courts of St. Christopher's so as to procure an absolute sale of the Plaintiff's said interest in the plantation and rent-charge, or in some manner relating thereto. Many letters passed between the Defendant and his agent concerning the proceedings at law or the means of bringing Plaintiff's said interest to a sale ; by which it appears, that at the time, when the said treaty between the Plaintiff and Defendant for paying or securing the said money was on foot, the Defendant had it in contemplation to proceed to procure an absolute sale of the Plaintiff's [172] said interest in St. Christopher's ; and during the time the proceedings were carrying on by his agents he declared to many persons, and particularly to Lord Kinnaird, that lie had instituted the said suit for the purpose of procuring security for his demand; and he would at any time accept principal and interest. The annuity and reversion are worth 20,000. Many persons would have bid; but they conceived the proceeding irregular, and that no good title could be made. The bill prayed an account, offering to pay the balance ; and that the bill of sale might be delivered up to be cancelled ; and that general releases might be executed. The answer, admitting the award, and the circumstances, that led to it, stated, that the Plaintiff fixed the time of payment. The Defendant afterwards desired, the time might be accelerated by fixing the 1st of February 1790 ; giving as a reason the probability of being deprived of the means of taking measures and pursuing his remedy against the Plaintiff's property in St. Christopher's that year; the Courts there being open only from March to August: but that was refused by the arbitrators. The Defendant never concealed his intention to proceed against the property in St. Christopher's ; and the Plaintiff knew it; as he had no other property, he could make available. Upon the Plaintiff's making default the Defendant upon the 1st of March 1790, wrote to inform him, he had waited at the place appointed, and requested to know, if the Plaintiff had any thing to propose upon the subject; who the next day wrote in answer, that it was totally out of his power to pay directly ; and he had no 954 cranstown (lord) v. johnston 3 ves. jtjn. 173. mode to offer to accelerate payment, unless the Defendant would treat for a West India mortgage mentioned in the letter. On the 3d of March the Defendant wrote to the Plaintiff, that he would treat for the security proposed ; to which the Plaintiff wrote the answer stated in the bill. They met afterwards at the Cannon Coffee House : but no offer was made. The Plaintiff wrote to the Defendant on the 27th of April, that the gentleman, who interested himself about Pemberton's mortgage, was ill at Bath ; but was better, and was expected in town; and no doubt, but...
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