Page images


by the said J. Graham, and at his suggestion, to

defeat plaintiff's rights, and prevent him from re. KELLY U. JACKSON.-Jan. 18. and April 17. covering the said premises for payment of his judg. Pleading-Discovery-Professional privilege.

ment, and said J. Graham was privy to and cogniWhere a bill charges that a defendant is connected of said leases, he caused a case to be prepared, and

zant of the fraud, and that previous to the execution with the preparation and execution of certain

frau- submitted to counsel to be advised if said leases dulent leases, and seeks a discovery of the matters would protect the premises from plaintiff's demand. alleged to be fraudulent, the defendant cannot, by. That said leases were at a gross undervalue, and the ple of professional confidence, protect himself consideration was never paid, and were really inade from the discovery.

in trust for said defendant, W. Trocke, and the bill The bill in this cause was filed the 29th of August, prayed that the said leases might be declared frau1848, and stated that by lease of the 30th of Nov. dulent and void as against plaintiff, and that same 1811, the premises called Montpelier House, in the might be set aside, and that the costs incurred by County of Dublin, were demised to J. Fyans at the plaintiff by reason thereof might be paid by the deyearly rent of £150 for three lives with a covenant fendants, and particularly by J. Graham, and that for perpetual renewal, that all the estate of Fyans an injunction might be granted to prevent Robert became vested in J. D. Duckett, who, by indenture Jackson or Wm. Trocke from interfering with said of the 4th of March, 1841, in consideration of £1500, premises. The defendant, Grabam, pleaded to so assigned said premises to William Trocke, one of much of the bill as regarded a discovery concerning the defendants, for the term of three lives, and a said leases and opinion. That for a long time precorenant for perpetual renewal, subject to the annual vious and down to the time of the preparation and rent of £125, to which the original rent had been execution of said leases defendant was, and continued reduced. The bill then stated that in the year 1842, to be, and then was the attorney and solicitor of the plaintiff was employed in making certain buildings defendant, w. Trocke, and he had not any knowand improvements on said premises, and not having ledge of, nor was he concerned in said matters, save been paid therefor by the defendant, commenced an and except only in his capacity as such attorney and action, and on the 12th of February, 1848, obtained solicitor.' That he had not and never had in his a verdict, and on the 26th of April 1848, entered possession, power or custody any case, or opinion, judgment in the Court of Queen's Bench for the sum or document relating to said matters, save such of 576 28. 10d. That plaintiff then issued a writ of cases, and opinions, and writing, &c, as came to, elegit, and was about to extend the interest of said and were in his possession solely as attorney and Trocke in the said premises when he discovered that solicitor' to the said Wm. Trocke, and prayed judg

since he obtained said verdict, on the 21st of Febru- ment whether he ought to make any further answer. | ary, 1848, said William Trocke caused two leases to By his answer, the defendant Graham stated that | be registered which appear to bear date respectively said leases were executed by said Wm. Trocke, at

on the Ist of February 1848, being the same day for Artane, in the County of Dublin, early in February, which notice of trial was served, and which leases 1848, and admitted that same were prepared by hin, appear to be made between said William Trocke, but stated they were made in pursuance of contracts and Robert Jackson, one of the defendants, and step- previously entered into; the answer then denied all father of the said William Trocke. That by one of fraud, and submitted that the defendant was not said leases the said premises of Montpelier House bound to answer the 7th interrogatory as being likely were demised for two lives at the rent of £120, and to subject him to penalties, and as the plaintiff had by the other lease in consideration of £280, and the not waived same said bill was demurrable, and deyearly rent of £14; the remaining part of said pre- fendant craved the same benefit as if the objection tuises, called Montpelier Cottage, were also demised was taken by demurrer. to the said R. Jackson for two lives. That at the Mr. Hughes, Q.C., and Mr. Close, in support time when said two leases purport to bear date, said of plea, relied on (i Dan. C. P. 527 ;) Vent v: W. Trocke was indebted to various persons, and Pacey, (4 Russ. 193;) Greenough v. Gaskell

, (! resident at Brussels in order to avoid his creditors, M. & K. 93;) Lord Walsingham v. Goodricke, (3 where he remained up to and after the 12th of Feb. Hare, 122 ;) Desborough v. Rawlins, (3 M. & L.

That it appeared by the memorials of said 515;) Sawyer v. Bichmore, (3 M. & K. 578; leases that they were respectively witnessed by the Herring v. Cloberry, (1 Ph. 91 ;) Jones v: Pugh, defendant, John Graham, as to the execution thereof (ibid. 96;) Woods v. Woods, (4 Hare, 83 ;) Blenk. by the defendant, W. Trocke, and they were regis- insop v. Blenkinsop, (10 Beav. 277, S.C. 2 Ph. 607.) tered on the affidavit of the said J. Graham, who Mr. Christian, Q.C., and Mr. Burroughs, contra, was attorney of the said W. Trocke in the said action, contended that the plea was bad in form, not have and who was resident in Dublin on the said Ist of ing been verified by affidavit. (Dan. C. P. 652–6.) Feb. 1848, the day when said leases are made to Counsel also cited Desborough v. Rawlins, (3 My.& bear date, and said J. Graham so continued resident Cr. 515;) Poley v. Hill, (3. My. & Cr. 475;) Knight in this country until the 12th of February, when v. Gale, (Finch, 259 ;) Greenough v. Gaskell, (1 M. plaintiff obtained said verdict, and therefore it was & K. 105;) Harris v. Harris, (3 Hare, 450 ;) impossible that said J. Graham could have been a Wall v. Stubbs, (2 V. & B. 354) witness to the execution of said leases by the said April, 17.-- In this case, after stating the facts W. Trocke on said Ist of February, but same were as above, his Honour adverted to the form of the really executed after plaintiff's verdict, in order to plea, which covered the greater part of the 7th indefeat his demand. That said leases were prepared l terrogatory, and prayed judgment whether the

defendant should answer, and stated he had no where Lord Cottenham says, “ Thus the witness

, knowledge of the matters save in his character as or the defendant treated as such and called so to attorney, and submitted he was not bound to discover, must have learned the matter is question answer, and by his answer he made the same ob- only as solicitor or counsel, and in no other way; jection, on different grounds. Upon this point, he if, therefore, he were a party, and especially to referred to the 46th General Order of 1843, which fraud and the case may be put, of his becoming corresponds to the 38th English and Mit. E. P. informer after being engaged in a conspiracy) 5th Ed. 381 ; (8 Beav. 40, 2 Atkyn. 284 ;) where it that is, if he were acting for bimself

, though he is laid down, that although a party may demur to might also be employed for another, he would not be one matter and plead to another, he cannot protected," &c. In Stanhopev. Nott (28w,221, note) plead and demur to the same matter ; and in a demurrer, on the ground that all the defendant's Stephens on Pleading, 527, it appeared that a knowledge was acquired as counsel, was overruled, similar rule prevails at law. His Honour then re- and the defendant was ordered to answer

, for the ferred to the 66th General Order, which provides trust of a counsel did not extend to the suppression " that po demurrer or plea shall be held bad and of deeds or wills; and Spencer v. Luttrell, (ibid. ;) overruled on argument, only because the answer of His Honour, after referring to Mitf. Pl. 224., and the defendant may extend to some part of the same Beames on Pleading, 33, said he was of opinion that matter as may be covered by such demurrer or plea,” the plea must be overruled. and was of opinion that the object of that order was to get rid of technical objections, and in Dan. C. P. 761, it is laid down, that in all cases not

POWELL v. POWELL- April 21. coming strictly within the terms of the Order, the

Injunction-Civil Bill Decree. principles stated by Lord Redesdale, that all the Where a decree to account has been pronounced in different defences must refer to separate and distinct

an administration suit, the court will restrain parts of the bill, still apply ; and consequently creditors from proceeding on foot of civil bill he considered the case before him within the

decrees obtained against the administratris * rule stated by Lord Redesdale. He was of opinion

far as relates to the assets of the intestate, lnt, also that the plea was bad in substance, and re

the decree being in the nature of a judgment ferred to the cases of Bowles v. Stewart, (1 Sch. &

de bonis propriis of the superior courts

, the Lef. 227;) Birch v. Beadles, (10 Sim, 332;) Ruddy creditors will not be prevented from proceeding v. Williams, (3 Jon. & Lat. 1, Mit. 350; Beames on

against the administrator personally. Pleading, 23; Mitf. 282, 285; Beames on Plead. 38; Mitf. Pl. 3 Ed. 199, Note; also the case of Before the decree to account, several parties having Desborough v. Rawlins, (3 My. & Cr. 515,) in proceeded against Catherine Powell, the adminis which Lord Cottenham, page 521, speaking of the tratrix of Thomas Powell, deceased, in actions at privilege of a solicitor, says, “ Both Bramwell v. law, both in the superior and Civil Bill Courts, the Lucas and Greenough v. Gaskell, shew that the administratrix applied to this court for an injuneprivilege only applies to cases in which the client tion to restrain those parties from further proceedmakes a communication to his solicitor, with a view ings at law, and to order them to come in and to obtaining his legal advice; this is undoubtedly prove their demands, together with such costs at the same ground upon which I held, in Sawyer v. law as were properly incurred in the said proceedBichmore, that a solicitor, when examined as a ings at law, up to the time at which the several witness, was bound to produce letters communi- parties had notice that the decree in this cause bad cated to him from collateral quarters, and to been pronounced. The Assistant-Barrister had answer questions, seeking information as to matters pronounced several decrees, and Catherine Powell of fact, as distinguished from confidential commu- having appealed therefrom, on the hearing of the nications.” “Io Sawyer v. Bichmore, the question appeals, Judge Ball made the following order :arose as to a solicitor being bound to disclose the "Reverse the decree, without prejudice to the circumstances of certain transactions in which he plaintiff proceeding to a new trial before te had been concerned as solicitor. I was of opinion, Assistant-Barrister, upon the civil bill already that the facts were not sufficiently brought before served in this cause, on the terms of the defendant me to shew that they were privileged, and finding being at liberty to establish credits as against the it laid down by the Court of King's Bench, that plaintiff on the trial of such civil bills, in the same communications are not privileged if coming from way as she might have done upon the trial already any other quarter, but that they would be if they had before the Barrister on the 18th of October, came from the client, I found that a case might 1848, but not any credits which would not have exist in which many papers in a solicitor's hands been properly chargeable against the said plaintiff would not be privileged.” And (in page 524,) he on the taking of the account at the said trial

; and says “ The Court of King's Bench said, that the in the event of the terms of this order not being privilege was restricted to communications, whether complied with, the decree to stand affirmed

, withoral or written, from the client to his attorney, and out costs, and the defendant to be at liberty to could not extend to adverse proceedings commu- appeal therefrom, as if this order had not been nicated to him, as attorney in the cause, from the pronounced.” Judge Ball had affirmed the decrees

, opposite party, in the disclosure of which there in pursuance of the above order, before this applicould be no breach of confidence." His Honour cation was made. The defendant had served the also referred to Peake, N. P., 508,

plaintiffs with the copy of the decree in this cause, and to Greenough v. Gaskell, (1 M. & K. 103,) and with a notice cautioning them not to proceed

on the civil bill decrees ; this notice was served the decree to account would be a defence to the civil on the 25th of February, 1849, and the decree bills, and having referred to the 36 Geo. 3, c. 55, s. 7, had been pronounced on the 26th of January, and 56 Geo. 3, c. 88, s. 9, by which the defendant 1849.

is entitled to all matters of defence that he might Mr. O'Hara moved for the injunction.

have had if sued at common law or equity; and to Sir Colman O'Loghlen contra. The civil bill Napier on Civil Bills, p. 107, and p. 86, where the decrees are now confirmed against the adminis question is considered, whether new evidence is tratrix absolutely, and the parties who have ob-admissible on an appeal from the Civil Bill tained the decrees have a right to enforce their Courts, made the following order.] rights against her, for those decrees were pronounced before the decree to account. As to the

“ Let the said Charles Studdert, &c., be restrained costs of the motion, Bookless v. Crumack (1 Purton

from further proceedings at law in the actions Cooper, 125); Jones v. Jones (5 Sim. 678); Egan

commenced against the said J. Powell, as v. Baldwin (2 Mol. 532).

administratrix, &c., and let said parties be at Mr. O'Hara, in reply-They had notice of the

liberty to come in under the decree in this decree on the 25th of February, and yet they went

cause and prove their demands, together with on; and those affirmances have been obtained

such costs at law as they may have respecbehind the back of the administratrix.

tively properly incurred, &c., up to the time April 23.-MASTER OF THE ROLLS.--I will stay

at which the said parties respectively had the suits in the superior courts, and will not give

notice of the said decree, &c., and let John the parties who so proceeded the costs of appear

North, &c., be restrained by the injunction of ing on this motion ; for, otherwise, if a great num

this court from levying in execution, or selling ber of actions were depending, all the parties

any part of the assets of the late Thomas would be entitled to appear, for the purpose of

Powell, under the civil bill decrees obtained informing the court that they could not offer any

by them, or from otherwise interfering in any opposition to the motion. As to the civil bill pro

manner with said assets ; and, in taking the ceedings, they stand upon a different footing ; for

accounts in this cause, declare the said Jane

Powell entitled to have credit for the costs a civil bill decree is in the nature of a judgment de bonis propriüs, and an executor against whom

properly and necessarily incurred by her in such a judgment is obtained, is personally liable.

said several actions and proceedings.”

R. Pet. H. Book 28, fo. 378. : It is not necessary to offer any opinion whether the

form of judgment on the civil bills is correct or not. The decrees obtained in the present case appear to be in the usual form, and are equivalent

PORTER v. VESEY.-May 1. to judgments de bonis propriis of the superior Practice-Subpæna-Clerk in Court--Answer courts. In Terrewest v. Featherby (2 Mer. 480),

for a minor. where such a judgment was obtained before decree Mr. M-Cartney moved that the clerk in court an injunction was refused ; and in the case of might be at liberty t put in an answer for the Brooke v. Skinner (ibid., note), the Lord Chan. defendant, George Stewart, a minor, he had been cellor said, “that if the plaintiff at law reco served with subpæna by the name of Mervin Stewvered a judgment de bonis testatoris, he would art, but an appearance had been entered in his right not suffer execution to be taken out on such a

name. judgment; but that if he recovered de bonis pro MASTER OF THE ROLLS. I have no authority to priis, this court would not restrain the execution." direct the clerk in court to file an answer unless the THis Honour then referred to the judgment in defendant has been regularly served with subpæna. Vernon v. Thelluson, (1 Ph. 469-70), and to Clarke v. Lord Ormonde (Jac. 124), where the same doctrine is expressed.] The case of Kent v.

GREEN v. M.CLINTOCK.--May 1. Pickering (5. Sim. 569) was a creditor's suit, and

Practice-Separate answerMarried woman. one of the creditors, who was not a party to the The Court will not make an order that a bill be taken suit, had recovered judgment de bonis testatoris et si non de bonis propriis ; and the Vice-Chancellor

pro confesso against a married woman there said, “where there is a decree for the administra

being no order that she should answer separately. ition of the assets of a testator, this court will inter- Mr. Murphy moved to take the bill pro confesso

fere so far as may be necessary to give effect to its against several defendants, two of whom were marown decree ; but it will not interpose to protectried women. the executors from any liability to which they may

Mr. Richards appeared for one of the defendants have subjected themselves personally.” Even if who answered previously to the motion. .

judgment de bonis propriis has been obtained, the Mr. Jenkins, for the married ladies, opposed the I court, although it leave the executor liable, will motion. | not permit the creditors to interfere with the assets MASTER OF THE ROLLS.I have no authority to

in the hands of the executor. The civil bill decrees, make an order that the bill be taken pro confesso being in the nature of judgments de bonis propris, against a married woman, no order having been I can only make an order similar to that in Kent v. obtained giving her liberty to answer separately. Pickering, leaving the creditors to make their decrees available against the executors personally. [His Honour then proceeded to consider whether


indebted to several other parties, his friends endea.

voured to induce the defendant to come to tering REGINA v. , May, 5.

with him, and at length prevailed on the former to Practice-Expense of Demurrer-books in agree to accept the terms offered to the body of Revenue Cases.

the creditors. A deed of composition was accordIn Revenue Cases, the Court will not grant the ingly prepared and engrossed, dated the 27th day

ordinary rule, that the Defendant join in the of May, 1848, and expressed to be made between expense of Demurrer-books, or judgment for the Reid of the first part, the plaintiff Smith of the Plaintiff"

second part, and the creditors of Reid of the third Mr. Jebb, on behalf of the Commissioners of inent, that the several creditors who should elect

part, which recited amongst other things an agreeExcise, moved that the defendant should be directed to come in under said arrangement, should receive to join in the expense of books, the traverser having and be paid a composition of 6s. 8d. in the pound demurred to the information. Per Curiam.—The rule of the Court at the to be secured by the notes of Reid, at four, eight

, sterling, on the amount of their respective debts

, Common Law side and the Revenue side of the and twelve months' date ; and that the said J. Exchequer is different

. At the Law side, a defend. M'Evoy, (the defendant,) should have his taxed ant demurring is ruled to join in the expense of costs of said motion, (in the suit before mentioned.) books, or judgment to go for plaintiff; but at the as between attorney and client, and should be re. Revenue side such has not been the practice, and imbursed the sum of £ expended by him in we are not disposed to vary it.

lodging a docket of bankruptcy against the said

T. Reid, as also the sheriff's fees and expenses in QUEEN'S BENCH.EASTER TERM.

the execution of the said writ and judgment; that the funds in the hands of the sheriff

, to the credit Smith v. M'Evoy.-April, 23. of the cause of M Evoy v. Reid, should, after payPromissory Note- Consideration-Delivery. ment of the sheriff's fees and expenses, be appliA fi. fa. having been executed against the property cable, in the first instance, to the payment of said

of B, at the instance of X., while the money costs when so taxed, and also the further expenses arising from the sale remained with the sheriff, it above mentioned, &c.; and that after payment was agreed by deed that A. should relinquish the thereof, the residue should forthwith be handed fruits of his execution, and should receive a over to the said John M'Evoy, he passing a promis

. certain composition on the amount of his claim, sory note, at four months date, for the amount along with the other creditors of B. It was also thereof, to the said G. H. Smith, the same to remain agreed that A, might have the use of the money in his hands until maturity, and then to fora arising from the levy, on passing his note at four portion of the fund wherewith the said T. Reid months for the amount to C., as u trustee for the should meet his first composition bills of 2s.6d, in creditors. A., on signing the deed, deposited his the £1. The deed after further reciting that the note with C's solicitor, receiving from him, at defendant bad, pursuant to the agreement passed the same time, a written undertaking not to part to the plaintiff, his note for the amount in the therewith until the creditors had executed or sheriff's hands, after making the foregoing deduoassented to the deed. No creditor except A. tions, then contained a covenant on the part of the signed the deed, which did not appear to have plaintiff

, Smith, to hold the defendant's note * in been further acted on.

trust, as soon as same shall arrive at maturity, to Held, that, under the circumstances, there was no collect and call in the amount secured thereby, and consideration for the note between the parties.

to distribute such amount when by him received, Beld, also, that, independently of this, the action rateably, &c., among the several creditors

, parties

, was not maintainable, the note having been depo- &c., of the third part, they hereby covenanting to sited by A. in the hands of a third party, to be receive the same as so much paid by the said T. handed to C. only in a certain event, which had Reid out of the promissory notes passed by bim never happened.

to them respectively for his first instalment." This Semble, that in point of law there was no delivery deed was executed by the defendant alone of all the of the note.

creditors, and he, being apprehensive that, if the deed Assumpsit by payee against maker of a promissory rupt, he might be irretrievably prejudiced, on

were not generally signed, and Reid made bank note. The declaration contained one count, on a handing over the note to the plaintif's attorney, note dated the 27th of May, 1848, payable in four obtained from that gentleman the following uote:-months, for the sum of £97 158. 2d., and also the usual money counts. Plea, general issue.

" Re Tuomas Reid with his Creditors. Notice to prove consideration, was also served on

“ Your note for £97 15s. 10d. is not to be given up the plaintiff. At the trial of the cause before until the deed is executed or assented to by all the creditors

of Thomas Reid, which bears equal date herewith. Crampton, J., at the sittings after last Hilary

G. D. FOTTRELL Term, it appeared that the defendant had some

(Dated, May 27, 1848.) time previously recovered a judgment, after much To John M‘Evor, Esq., litigation, against a person named Reid, for a large Meeting-house Yard." amount, and had issued against him a fi. fa., under It did not appear that Reid had made any exertione which his goods were sold. A portion of the debt, to obtain the assent of the other creditors to the however, remained undischarged, and, Reid being deed ; on the contrary, they had been settled with

independently. The defendant never received any note, as it is to that of a deed. It is, therefore, no instalment under the deed. The note when pro- contradiction of the terms of the deed, to shew duced appeared to have been in circulation, froin that the note was delivered as an escrow. Bowker the fact of there being a cancelled indorsement by the v; Budekin, (11 M. & W. 128.) Neither the plaintiff. Upon this state of facts, counsel for the plaintiffs nor the creditors at large were bound by defendant called for a nonsuit

, which the learned the deed, as they never executed it. Walwyn v. judge refused, but allowed the plaintiff to take a Coutts, (3 Mer. 707.), verdict

, subject to be turned into one for the de. Mr. O'Callaghan in reply-The deed must be fendant

, in case the Court should decide in favour considered to intercept the note. This latter bears of the latter, expressing, at the same time, that the Smith's endorsement, and whether there were a inclination of his mind was with the defendant. A breach of trust in the case or not, the fact of the conditional order was accordingly obtained, in the delivery is clear. The deed was not dependent for course of the present term, against which

its validity upon the signature of all the creditors. Mr. M Donough, Q.C., (with him, Mr. O'Cal This, in fact, was the difficulty started at the time laghan,) now shewed cause. The plaintiff

' here sues of executing the deed---namely, that the party as trustee for such of the creditors as inay sign the signing might be bound, and the others free. This deed. The action is by payee of a note against led to the collateral agreement, which was intended maker

, and notice has been served to prove consi- as a qualification to the terms of the deed. It is deration. The fallacy of the argument on the said that there was no evidence of assent in this other side"consists in the assumption, that the deed case, but a liberal construction ought to be given would be void if not executed by all the creditors to the term. The circumstances of the case must [Blackburne, C. J.-If there be any consideration be taken into account, in the construction of this for the pote, he cannot set up that defence.] term. [Crampton, J.-In no instance has this The defendant sigued the deed. Cole v. Cresswell, deed been acted on. How would the case have (11 Ad. & El. 661.). The words of the deed are, stood, if Reid had surrendered his whole property

such of the credítors who should elect to come in to the other creditors.] Your lordship suggests a under said arrangement.The document produced case which would bave completely encroached on on the part of the defendant is at variance with the M.Evoy's rights; but this is not the present state terms of the deed, and was, therefore, not properly of facts. Here the main object was to avoid bankreceivable in evidence, to vary the effect of the ruptcy. The witnesses who have been examined in instrument under seal. Lewis v. Jones, (4 B. & this case depose to the assent of the creditors, when C. 506.) [Blackburne, C. J.-The document does they speak of the various settlements made with not

, in my opinion, contradict the deed, or vary them. That is the species of assent contemplated the terms of it.] There is a covenant in the deed, by the document. to hold the note upon trust, to distribute tlie BLACKBURNE, C. J.-This was an action by the amount thereof rateably between the creditors. This payee of a promissory note against the maker, an is repugnant to the document, which is uno flatu the consideration was examinable between the parwith the deed In the case of Lewis v. Jones, no ties to the suit. The plaintiff, having been served objection was taken at the trial to the admissibility with a notice to prove same, has proposed to do so of the evidence. Parol evidence cannot be given, by giving in evidence a certain deed of composition. to shew a note not to be payable at the time men- Now, had this been a valid instrument, and acted tioned. (Crampton, J.-If we are called on to upon by all parties, there is no doubt that the form a presumption about the dates of these instru- present action would have been maintainable. The ments, we must presume them to relate to the same plaintiff would then hyae been the bona fide holder transaction.] It is a settled rule, that the mere of the note, according to the terms of the deed. omission of the signatures of creditors is insufficient Reid was indebted to many persons, but not to the to avoid a deed of composition ; a tender to, and plaintiff, who was a bare trustee for the creditors, refusal by, them, must be proved. The note ought and bad, therefore, personally no right other than to bave been given up by the depositary, as well that which the deed conferred-namely, to use the upon the creditors assenting to the arrangement, as security for the benefit of those creditors who upon their executing the deed, and their having should come in and execute the deed. Not one of accepted in ready cash sums of money in satisfac. them, however, came in, or took any benefit from tion of their claims, amounted substantially to it; no one assented to, or took under it. The assent.

evidence is, that some accepted more, and others Mr.J.D.Fitzgerald, Q.C.and Mr.R. Armstrong, less, in satisfaction of their claims, but all indecontraThe deed here is merely collateral to the pendently of the deed. On this head, the case is present cause of action, and can be used for the clearly with the defendant; as no consideration is purpose of shewing the consideration of the note. disclosed by the deed, and the note is between him We say, Ist, there was no delivery of the note; and the plaintiff

. Contemporaneously, however, 2ndly, there was no consideration for the same; with the making of the note, and as a part of the and, 3rdly, there was a distinct collateral agree same transaction, the defendant insisted on having ment, that the note should be delivered only on the a document signed by the plaintiff's solicitor, with happening of an event which never took place. whoin the note was to be deposited, that he would There could have been no delivery until the deed not part therewith until the deed was executed or ad been executed or assented to by all the cre- assented to by, all Reid's creditors. . This was litors. Delivery is as essential to the validity of a plainly all one transaction, and the document was

« EelmineJätka »