Ord v White
| Jurisdiction | England & Wales |
| Judgment Date | 17 December 1840 |
| Date | 17 December 1840 |
| Court | High Court of Chancery |
English Reports Citation: 49 E.R. 140
ROLLS COURT
[357] ord v. white. Dec. 16, 17, 1840. The assignee of a chose en action, the assignment of which is available only in equity, takes subject to all the equities which subsist against the assignor. On shewing cause against dissolving the common injunction, affidavits are admissible to prove facts alleged by the bill, hut which are neither admitted nor denied by the answer. Semble. 3BEAV.358. OHD V. WHITE 141 Thia cause came before the Court on a motion to dissolve the common injunction, obtained for want of answer, the Plaintiff having undertaken to ahew cause on the merits. So far as appeared from the admitted statements, the facts of the case were as follows:-On the 19th of August 1825 the Plaintiff executed a bond to Mr. Attenborough for securing the repayment of a sum of £3000, and contemporaneously he òexecuted a deed for keeping up a policy of assurance on his life. [368] By a deed of the 19th of November 1830, made between the executors of Attenborough of the first part; the Plaintiff of the second part; and Mr. Shuttle-worth, the solicitor of the Plaintiff, of the third part; after reciting that the sum of .£3000 was still due, and that the Plaintiff had applied to and requested Shuttleworth to pay off the same, the executors of Attenborough, in consideration of £3000 expressed to be paid to them by Shuttleworth, assigned to him the bond and policy, and the Plaintiff thereby covenanted with Shuttleworth to pay the £3000, and interest and the premiums. The execution of this deed was attested by two witnesses, described as clerks of Mr. Shuttleworth. On the 1st of June 1835 Shuttleworth assigned this bond and policy to Dawson, as a collateral security for a sum of £3000, which he also secured by a mortgage of his real property, and by a policy for £1000 ; the bond, policy, and deed were thereupon delivered over to Dawson. In February 1840 Dawson's solicitor gave notice, by letter, to the Plaintiff of this assignment, in answer to which the Plaintiff's solicitor wrote to say that the bond had been paid off many years ago. In August 1839 Shuttleworth had mortgaged some other property not comprised in the deed of 1835 to the Defendants Messrs. White and Borrett, to secure the repayment of £2500; and in September Shuttleworth mortgaged the whole of his real property to the Defendants Messrs. White and Borrett, for securing moneys not exceeding £2000. These securities being inadequate, Shuttleworih assigned to the Defendants Messrs. White and Borrett the policy for £1000, previously assigned to Dawson, as [359] a further security for the sums of £2500 and £2000, which were due to them. Messrs. White and Borrett, having notice from Dawson that the Plaintiff alleged that the bond had been paid, negociated with Dawson for a transfer of his securities; and on the 23d of May 1840, in consideration of £2800, Dawson assigned to Messrs. White and Borrett the bond and policy for £3000, and the mortgage securities. In June 1840 Messrs. White and Borrett sold the property comprised in the deed of June 1835 for £2027, which, after payment of the expenses amounting to about £50, they retained in discharge of their debt. The Defendants, Messrs. White and Borrett also received a sum of £1000 in respect of the policy assigned to them. They afterwards commenced an action at law against the Plaintiff upon the bond, in the name of Attenborough, to recover the amount, and in which they recovered judgment pending this suit. The Plaintiff Ord filed this bill, alleging that between the month of May 1828 and July 1829, he had furnished Shuttleworth and his partners, who were his solicitors, with moneys amounting to £3188, for the purpose of being applied in payment of the amount due on the bond to Attenborough. That it was paid, and that the bond ought to have been, and that...
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