Vice-Chancellor's Court, ...
wile rSOL1CTTOU.GE2XrT1.L appeared to aolow cause why an tn- iunction which had been granted i-n this cause should not be dis- etOlved It appeared that the plaintiff was Mr. WalgoleEc rer and the defendlants Messrp. Everitt, Mlaltbr, and Co. The plafntitt had executed a bond jointly with Alr. (G. ntdlton Mainwaring the late Receiver for the oDanty of 1tMiddlesex, as the cecurity of le latter, for the payment of 2,200l. This sum was stated in the bond to be. the consideretion for the sale, by Alessrs. Everitt and Co., to Main- 7aring, of 66 sharei in the Bayzwater Spring Water Compannv. The bond rms given in tbe year 1817; DIr. Moinw4ring, the principal. had, c WsA VWell known, absconded. The defendants took no steps to compel the payment by the plaintiff of his bond, until muore thad five years had eapFed from the time oFits date. When they thought tit, after IlMr. Malinwaring had left the country, to apply to MIs. EYre for payment, he refused to do co, believing that he was discharged from him liability by the conduct of the defendants. In conUequence of this belief, he had filed the bill now before the Court, and hed obtained an injueaidon restraninng the proceedings of the defendants at law. The gronnde upon which the plaintif blad de- "'t-rined to resist the demands which had been made upon him gere theze--When MTr. Mainwaring requested the plaintiffto be- come hts tecurity for the payment of a sum of money, to lessrsm X,;Prltt and Co., which he alleged to be for the purchase of certain l. Ve in the SpringIVater Company at Bayswater, he (the plaintiff) refiRed to do to, unless upon condition that the shares were depo- aited in his hands, which Mr. Mainwaring promised should be done. By his bill he charged moreover, that when, afterwards the bond was tendered to him for execution, he told the clerks of the defendants' attomies, that he would execute the bond, but that he would not part with the possession of it until the shares were deli- vered to him. He did afterw7ardsgive the bond to Mr. lainwaring, but it was upon his repeated promise that he should have the shares. The plaindff; however, had not only never obtained possession of the shares but, as it now appeared, there wereno such shares in ex- istence. he afterwards rive to the defendasnts, cautioning them that he would not pay the bond; and it wan evident from their an. awer, that this letter had been received, and vras therefore to be deemed a sufficient notie. The defendanta, notwithstanding, pro- ceeded with their action upon the bond, and upon the present plain. tiffpleading to that action that there was no such company as the Bayswater Sprin Water Company in existence, the Chief Justice of the Court of Common Pleas held that it was a good plea, and Mfessrs. Everitt and Co. not being prepared tO prove the contrary, they were ronsuited. Upon a second trial, however, Mr. Justice Bur- rough was of a different opinion, and held the recital In the bond to be sufficient evidence for the purposes of that action, and a verdict was accordingly taken for the whole amount. The plaintiff then filed his bill to procure in equity that relief to which hli ease enti- tied him, and which he could not obtain at law. An ianunction had been granted, which the defendants had given notke of their inten- tion toniove to ditsolve, and this now came on for argument. Mr. WYATT 'was hearl on the same aide. Mlr. HiEALD was about to reply,when his Hoxoua aignified that it was not neceasary for him to do so. The ViCE.-C1ANCEI.LOR said that this motion being for an injunction, in a question which hat been already tried at law, the Crout could not in its decision of that question permit Itself to be in. fluenced byanyofthepoints vhich either had been orcould havebeen ;adequatelyinvestigatedupon the trial. With respect to all those points, the Court was now concluded. This bill related to a bondgiven tose- cure to the defendants the sum of 2,2001., the purchase of certain uihares In a WVater Company. The plaintiffsaid there was no such company. This question might have been, or wao tried at law. The second objection by the plaintiffwas, that there was in fact no .--nsideration for the bond; this objection was in the same preslica. ment. The third objection was, that althiouh the plaintiff had been under a legal obligationl he was discharged In equity becaute he had given notice to the Lefendanta that v,hen the bond should be. come due he would reslst the payment of it. With respect to this *objectioM,therc was not the least principle for its foundation in reason ol in equity; because the plaintiff' had followed up lhis notice by ;none of the steps vihich be might have taken to establish the validity .f his objection, and to coatinn his release. His Honour had rhought, at firt, that the objection in consequence of the no. ice given by the plaintiff that he would not deliver the bond until I:he shares should be placed in his hands, was entitled to some ,weight; but this, too, he found, had been tzied at law, it havim- been.plea&d by th-e n Itsntiff that the bond was an eciro-e, and this plea had been decided against. The injunction must, therefore, be VICE.CHANVrimTRTnw nflTrRTI PAn%n.v f)vc.- 9. _ E:YRE V. EVERITT AND OTlEEnS.