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Decisions of the Superior Courts of New South Wales, 1788-1899

Campbell v. Burdekin [1847] NSWSupC 10

insolvency, equity procedure, account of profits, bond, sale of business

Supreme Court of New South Wales

Therry J., May 1847

Source: Sydney Morning Herald, 20 May 1847, in Supreme Court Collection, Vol. 1, p. 114 [1]

His Honor Mr. Justice Therry delivered the following judgment in this case:

This bill - to which there is a demurrer, - was filed by John Campbell, trustee of the insolvent estate of John Thomas Wilson, against the representatives of the late Thomas Burdekin, the objects of which are fully and clearly disclosed in the prayer of the bill. It prayed that an account may be taken of the monies due to the plaintiff as provisional trustee, and of the profits which arose and accrued from the business mentioned in an agreement and assignment set forth in the bill - and also prayed all necessary and customary accounts as to the business transacted under the agreement entered into between Burdekin and Wilson in July, 1836, and as to the stock in hand at its termination in July, 1838. Thus far the bill assumed only the ordinary character of a bill calling upon the defendants to account. The bill, however, further prayed that the costs of all proceedings in the suit mentioned in the bill may be directed to abide the result or issue of this suit; and that the defendant may be restrained from taking any steps or proceedings therein until special leave for that purpose should be obtained. It is from joining together these objects - an account under the agreement, and a stay of proceedings in the former suit, that a principal difficulty arises. The statement in the bill is certainly such as aims at supporting a prayer for both purposes, and in order to see that it does so, it becomes requisite to refer with particular attention to the statement, and consider it with reference to the demurrer, which is a general demurrer for want of equity -and a special demurrer that "the statements and charges contained in the said bill, but more particularly those relating to the former suit and decree in the bill mentioned, are too vague and uncertain, and that the bill does not set forth any certain and definite case for relief.

On referring to the frame of the bill, I find the statement relating to the agreement, so far as an account under it is concerned, is contained in the usual stating part of the bill. It set forth the articles of agreement entered into between Burdekin and Wilson in July, 1836, and proceeded to state that everything required to be done by Wilson was performed by him-that Burdekin, in part performance of the agreement, gave his bond for £10,000-that Burdekin did carry on the business, and was in possession to the time of his death, and received the profits of the business, and collected the outstanding debts-that a large sum was due by him to Wilson's estate, and that the present plaintiff was prevented from putting Burdekin's bond in suit until the necessary accounts for ascertaining the amount of the profits of the business for the two terms mentioned in the agreement should be taken. Here, according to the frame of the bill, the stating part appears to close,-and the pretence of the defendant, with what is termed in the bill a charge to the contrary, follows. Now, regularly, all the material parts of the plaintiff's case should find their appropriate place in the narrative or stating part of the bill. According to the case of Flint v. Field, 2nd Anstruther, the equity of the plaintiff's case should be fully averred in the stating part of the bill, for if it should be stated in the charging part of the bill, and thus consist only of pretences, and the charges in answer to those pretences, and the admissions-it was held not to be sufficient; -and a demurrer for such insufficiency was in that case allowed. -The more recent case of Haughton v. Reynolds, 2 Hare 264-establishes that if the material facts are specifically averred there does not seem to be any positive rule of law which requires that those facts should be averred in the stating part of the bill, and precede what is technically called the charging part of the bill-but in Houghton v. Reynolds the Vice Chancellor not only does not impeach the decision in Anstruther, but upholds it as an authority that an allegation that the defendant sets up certain pretences, followed by a charge that the contrary of such pretences is the truth, is not of itself an allegation or averment of the facts which make up the counter statement. This may be, and I admit is, a correct rule of construction so long as the counter allegation is restricted to a general denial of the pretences-but I apprehend cannot be extended and made applicable to a case like the present where not only under the pretext of a general denial there is not merely a counter statement, but new facts are averred, and the whole of the statement is introduced which is made the foundation of the prayer that proceedings in the other suit be staid. There are then these two ingredients in the present case which makes it dissimilar from any case that has been cited; first, that the passage in the bill which purports to be a denial, contains matter beyond the allegation that the contrary of these pretences is the truth; and secondly, that this matter beyond the denial, together with the matter contained in the denial itself, constitutes the statement by which it is sought to support the prayer of the bill that proceedings in the former suit be staid. Now, I am not aware that I can refer to a more satisfactory test for determining what is statement or what not, than by reference to the prayer of the bill, for as the prayer is drawn from the stating part of the bill, that may appropriately be regarded as statement, between which and the prayer for relief there is a necessary and manifest connexion. This relation between the stating part of the bill and the prayer is thus shortly and clearly illustrated in Patridge v. Haycraft, by Lord Eldon, (11 Ves. 574). "Formerly the bill contained little more than the stating part. I have seen such a bill with a simple prayer that the defendant may answer all the matters aforesaid, and then the prayer for relief. I believe the interrogating part had its birth before the charging part. Lord Kenyon never would put in the charging part, which does little more than unfold and enlarge the statement."

It may be as well to cite here the passage from the bill relating to the former suit. It runs thus: - "and the defendants hereto sometimes admit that such accounts ought to be taken, but then they allege, or pretend, that the same ought to be taken in another suit instituted originally by the said J. T. Wilson against Thomas Burdekin, and that ample justice can be administered between the said parties to the said agreement, and their representatives in the said suit. Whereas, your orator charges the contrary, &c." Now if the pretence and general denial of it had stopped there, it might be fairly said that it is not of itself an allegation of facts which make up a counter statement; but the denial goes on and far exceeds the province of mere counter-allegation. It charges that the said suit is inadequate, as well from its terms and the erroneous working of the original decree made therein, and from other causes over which the plaintiff has no control, and which it is impossible consistently with the rules of this Court to rectify and give proper relief. And under the form of general denial it is further averred that in fact the Master in Equity has been unable under such decree to take the necessary accounts, or to reconcile the wording of such decree with the taking of such accounts as ought to be taken, &c. And in conclusion it prays that the proceedings in this suit may be staid. The prayer converts this charge into a statement and may be read thus: - The plaintiff states that there is an account pending between the parties, and that there has been another suit instituted which the defendant alleges is for the same matter, and the plaintiff alleges is for a different matter, and prays for an account, and that the proceedings in the former suit may be staid. Now is there enough stated to show that the plaintiff is entitled either to the account or to the stay of the proceedings? I think not, -for when it is stated that there is another suit pending, concerning which there is a dispute, whether or not it comprises the same matter as the present suit; surely the Court ought to know from the bill whether it does nor not, before it can decree the account or stay proceedings in the former suit. The plaintiff does not state simply that there is another suit pending, the proceedings in which ought to be staid, but he alleges that there is another suit pending, concerning which he and the defendant dispute, whether it is or is not for the same matter.

It is urged that the suit must, for the purpose of this demurrer, be taken to be for different matters, because the plaintiff so alleges-but the demurrer only admits the facts of the bill so far as they are relevant and well pleaded, not conclusions of law therefrom, (Wyatt Practical Registrar, 163.) "Strictly speaking," says Mr. Daniel, (vol. 2, p. 21,) "arguments, or inferences, or matters of law ought not to be stated in pleading." Here the plaintiff charges the former decree to be inadequate from its erroneous wording; but he may be mistaken in that conclusion; and whether he be so or not, how can the Court determine if the directions of the decree be not disclosed? It should be shown to the Court in what respect the former decree was defective before it be called upon to decide upon vague and uncertain allegations of dispute,-whether the taking of account under the agreement set forth in the present bill be comprehended or not in the directions under the former decree. I am of opinion then that as the Court is called upon before it can make any decree to say whether the two suits are for the same matter, there ought to be sufficient on the face of the bill to enable the Court to judge of that; but there is not sufficient in this bill, -and a demurrer will, therefore, I think, lie to the whole bill, on the grounds stated in the notice of argument on the demurrer; that as it appears by the present bill that it has resulted from, or been occasioned by, or is connected with, a certain other suit, already instituted and still pending, in which a certain decree has been alleged to have been made, the bill ought to have shown with greater distinctness than it has done, the frame, nature, and scope of the former suit and decree respectively, and the necessity, as alleged, of instituting the present suit. That a general demurrer will lie on the ground of vagueness and uncertainty of its statements is shown in Wornald v. de Lisle, 3 Beavan 18, and the numerous authorities collected in the note to Westhead v. Keene, 1 st Beavan, 269.

It is next contended that the demurrer should not be to the whole bill, -that although, as Mr. Donelly urged, there might not be sufficient stated as to so much of the bill as prayed for a stay of proceedings in the former suit, and though there may not be ground to grant that particular prayer, yet there was no reason why a specific performance of the agreement should not be decreed. But the demurrer, in my opinion, applies equally to one part as to the other, for from the vagueness and uncertainty with which the directions under the former decree are mentioned or rather referred to in the pleadings, it is impossible to determine whether or not the other bill prays for the specific performance of the agreement, the performance of which is prayed for here, -or whether or not the taking of an account under this agreement is comprehended under the directions in the decree in that suit. If there was a former suit for the same matter-that is, for the matter contained in the agreement, &c., the relief now prayed touching it could not be granted, so that it is of the utmost importance that the Court should ascertain that fact by the bill. It should not be left uncertain; for if it was for the same matter, no relief could now be given in regard to the account prayed for under the agreement.

It is suggested that from the bill it does not necessarily appear that an inquiry into the same account is involved in the former suit; but quite enough appears to show that it may be so. The case of Vernon v. Vernon, 2 Mylne and Craig, is an apt illustration of the rule of construction against a pleader in regard to inconsistent or uncertain statements. In that case the plaintiff's bill was so loosely and doubtfully worded, as to admit of a two-fold inference, and a demurrer by the defendant was therefore allowed upon the ground that he was entitled to put that construction on the statements in the bill which was most against the interests of the person making them. Among other tests which mark the connexion between the two suits, that part of prayer of the bill may be referred to which prays that the costs of the former suit may be directed to abide the result of this suit. On what other ground than that, both suits appertain to the same matter should the costs of the one affect or regulate the costs of the other? And if the two suits are for the same matter-the defendant ought to be able either by demurrer or plea to bring this before the Court, and so protect himself from answering. Would a plea lie in this bill? I apprehend not, -for a plea is used when the objection or matter of defence is not apparent on the bill itself, or as the technical phrase is when it arises from matters dehors the bill. In this case the fact of the former suit being in existence is shown on the face of the present bill, therefore on that ground a plea of that suit would not lie. But as whenever any ground of defence is apparent on the bill itself, either from matter contained in it, or from any defect in its frame, or in the case made by it, the proper mode of defence is by demurrer, which for the reasons to which I have already adverted, ought, I think, in this case to be allowed. No doubt the bill was ingeniously contrived, with the view and design of avoiding both a plea and a demurrer, and requiring the defendant to answer, -for if neither a plea nor demurrer will lie the defendant must answer, although if there is in fact a suit depending for the same matter and between the same parties, he need not do so. This then appears to me to be precisely the case in which a plea or demurrer is the proper mode of defence, viz., when it brings the suit to one point. It does so here, that point being the existence of a former suit for the same matter.

Mr. Donnelly, with the view of showing that two suits may be carried on at the same time for the same matter, cited several cases collected in the 1 st Smith, p. 722. The first is that of Gaze v. Buckly, 1 st Ambler; in which Lord Hardwicke said that "this Court will not grant a motion to stay proceedings, but where several bills are brought by the same parties for the same thing ;" but besides its not being clearly ascertained whether or not this bill is brought for the same thing as the former bill, or whether the inquiry in the present bill would be reached by the inquiry involved in the former one; this doctrine of reference is qualified by a decision of Lord Eldon, in Taylor v. Oldham, 1 Jacob, p.528, in which his Lordship said, that where "one of two suits had arrived at a decree, and the other had not, it is not usual to make this reference." The other suits referred to there, as well as the case cited from the 1 st Collyer, p.1, are creditors' suits which stand on peculiar grounds. In one of these, Cummings v. Slater, 1 Y. and C. 485, the Vice Chancellor refused to make any decree, regarding the plaintiff in the second creditor's suit, as an acting party in the first, and therefore directed the cause to stand over, and come on with the first cause; in which a decree had been made, upon the hearing of that cause on further directions. In the case cited from the 1 st Colleyer, p.1, Reid v. Terrutt, two successive suits having been instituted against the same executrix, the latter suit was permitted to go on, but the reason of its being so permitted was, that the decree was obtained without sufficient proof of the debt, and was also irregular in form. Many other topics were urged in the course of argument on the demurrer, from various authorities. Purefoy v. Purefoy was cited to show that it is allowed a good cause of demurrer that a bill is brought for part of a matter only, which is proper for one entire account, because the plaintiff shall not split causes and make a multiplicity of suits. A case was also cited from the 8 th Jurist, p.27, (Shoobridge v. Woods,) with a view of establishing the position that the proper mode of working out a claim similar to the present, was by bill, to set the original decree right. Again, it was urged, on the authority of Wortley v. Birkhead, 3 Atkins, 809, after a decree in a cause that an original bill cannot be brought between the same parties and for the same matter-a position, however, which recent decisions indicate must be taken with considerable qualifications. And then the case of Hudson v. Ball (1 st Phillips, 177) was cited to invite the discussion of the various purposes which a bill of review, and a supplemental bill are designed to serve; and passages from 88, 89, and 90, of Lord Redesdale's Treatise, were quoted to elucidate and explain the elementary principles on which these bills respectively rested. To enter upon a discussion of the various topics to which these cases, and the class of cases to which they belong, would be open a wide field for discussion, that it appears to me unnecessary to pursue in the present case. Suffice it to say, that I have read these cases as well as the other cases cited in argument, but they have not availed in affecting the opinion I have already expressed, that the present plaintiff comes within the rule which prescribes that a plaintiff shall not sustain a bill unless he has employed such a degree of certainty in setting out his case, as may enable the defendant to ascertain the true grounds on which it is filed; and that this demurrer should be allowed, on the ground stated and set forth therein, that the statements and charges in the bill, but more particularly those relating to the former suit and decree in the bill, are too vague and uncertain, and that the bill does not set forth any definite case for relief.


Stephen, Dickinson and Therry JJ, 3 December 1847

Source: Sydney Morning Herald, 4 December 1847, in Supreme Court Collection, Vol. 2, pp 31-33

BEFORE the Full Court .




Sir ALFRED STEPHENS, C.J. This is an appeal from an order made by the Primary Equity Judge, on the 18th May last, sustaining a Demurrer to the Bill; but allowing the plaintiffs to amend, if they should be so advised, on payment of costs.

The Bill was filed by the Assignee of Wilson, an insolvent, against the Executrix and Executors of Thomas Burdekin. It states that Wilson having been for some years engaged in a very extensive trade as an ironmonger, entered into an agreement with Burdekin on the 1st July 1836, for the sale to him of all his stock, and the good-will of the business, and the debts due to him in it; such sale to be perfected by an assignment, on or before the 1st day of August then ensuing:--- on consideration of which, Burdekin agreed to execute a bond conditioned for the payment of £10,000 to Wilson, in five equal annual instalments, commencing on the 1st July, 1839--- and agreed further, that at the end of two years from 1st July 1836, he would give an account of the remaining stock, and the state of the business, showing the loss or profits accrued during that term:--- when, if a profit, he was to execute a bond for the amount (in addition to the £10,000,) payable in two years after the last of the said five instalments; but, if a loss should have arisen, or a profit of less than £10,000, then Wilson agreed to pay the amount of such loss, or to repay the difference between the said £10,000 and the amount of profit. Burdekin was to be allowed five per cent. in taking the accounts, on the amount of the sales. The Bill proceeds to state, that on the 28th July 1836, the sale was perfected, and a bond for £10,000 given; and that the business was carried on by Burdekin, for more than two years after the 1st July 1836; but that, although applied to by Wilson shortly after the 1st July 1838, he constantly neglected up to the time of his death to furnish any account whatever of the stock, or sales, or of the profits:--- that he refused to allow Wilson to take any such account; and that, in fact, neither Burdekin, nor his representatives since his death, have rendered any account to Wilson, or his assignee since the latter's insolvency; although a large amount of profits, (the plaintiff alleges,) accrued during the said two years, which is still wholly unpaid. The plaintiff charges that he is unable to put the bond for £10,000 in suit, until the accounts shall have been taken; and he seeks to have them taken, under the direction of the Court.

The bill then proceeds to state certain pretences by the defendants, and to charge the contrary of those pretences to be true; and it alleges certain matters in respect of those pretences, which will be particularly mentioned presently. This portion of the bill forms the ground, or main ground, of the demurrer. It is, however, as it appears to me, perfectly distinct (or at least plainly distinguishable) from the previous portion; and I reserve it, therefore, for separate consideration--- proceeding now to state the prayer, founded on so much of the Bill as is already given. This is, that an account may be taken of the profits, which accrued from the two years' business mentioned in the agreement, and of the money due to the plaintiff, as the assignee of Wilson's estate, in respect thereof; and that, in order to ascertain the same, an account may be taken of the stock, remaining at the end of the two years, and of the business done during that term, and the goods sold or contracted to be sold during the same term,; and then, that the defendants may be decreed to perform the testator's agreement; and pay the plaintiff all such suns as shall be found due to him, with interest from the times when they ought to have been paid. Various details are suggested, as to the mode of ascertaining or calculating the profits, should no proper accounts be brought in by the defendants; and there is the usual prayer, for taking an account of the personal estate of the testator, should the defendant not admit assets.

The portion of the Bill which I have omitted, is as follows: "The defendants sometimes admit, that such accounts ought to be taken. But then they pretend, that the same ought to be taken in a certain other suit, instituted originally by Wilson against the said Thomas Burdekin, and for some time (until the Master found it impossible to carry on the same properly) continued against his representatives; and that ample justice can be administered between the parties, in such suits:---whereas the plaintiff charges the contrary, and that the same are inadequate; as well from its terms and the erroneous wording of the originals Decree made therein, as from other causes over which the plaintiff has no controul, and which it is impossible (consistently with the rules of the Court) to rectify, and give proper relief as between the parties; and that, in fact, the Master has been unable under such decree to take the necessary accounts, or to reconcile the working of the Decree with the taking of such accounts as ought to be taken."---The Bill then charges, that the now defendants are seeking to carry on the taking of the accounts, under the said erroneous and imperfect Decree; whereas the plaintiff insists, that such accounts are perfectly useless, and that all further proceedings in those suits ought to be stayed. There is a Prayer, accordingly, to this effect; and that the defendants may be restrained by Injunction, from taking any further steps therein without leave of the Court; and that the costs in the said suit may be directed to abide the event of this suit.

The Demurrer is, generally, that there is no case made out for relief; and none to a discovery , since the latter is incidental only (it is insisted) to the former:--- but, more particularly, that according to the case made by the Bill, the plaintiff can obtain relief at law; that it appears by the Bill, that the present suit is occasioned by or connected with another suit still pending, and in which a Decree has been obtained; and that the object is, to rectify that Decree--- which cannot be by original bill, but by supplemental bill only; and that the nature, frame, and scope of the former bill, should have been distinctly shown. On these last grounds, the Primary Judge sustained the demurrer. His Honor was of opinion that as there appeared to be a still pending suit, connected with, if not directly affecting, the subject matter of the present suit, it ought to have been shown by the plaintiff, in order to give him a locus standi in this suit, in what respect the two differed. The learned Judge said that it could not be collected, with any reasonable degree of certainty, wherein or how they were distinguishable, in scope and object; and he conceived, therefore, that no part of the Bill could be supported. His Honor thought that a plea was not necessary, nor indeed in this case the proper mode, to raise the objection of the pendency of another suit; because the fact that such a suit existed, affecting in some degree the same matter, was admitted on the face of the Bill; that it might , therefore, be for precisely the same matter; that consequently the plaintiff had left the question uncertain; and so, that this demurrer was right.

The appeal against that decision was argued before the three Judges, by the Solicitor-General, Mr. Donnelly, and Mr. Gordon, for the plaintiff, and by Mr. Foster, Mr. Windeyer, Mr. Broadhurst, and Mr. Lowe, for the defendants; and the Court then took time to consider. We have since conferred together, and fully considered the matter; and out judgment not being unanimous, it is now necessary for us to deliver our opinions separately.

In the view which I take of the question it is not material to determining whether a demurrer might or not have been sustained, to a portion of the Bill; that is to say, to so much of it as seeks a stay of proceedings in the other suits, and a direction respecting the costs in them. Neither do I think it necessary to express any opinion, as to the possibility of suing on the Bond at law, whether any accounts be taken or not. The tenor of the condition of that bond is not given. It is not even stated, that it was in accordance with the terms stipulated in the agreement. The only allegation is, that in part performance of that agreement a bond was executed, conditioned for the payment of £10,000 "in manner therein mentioned." If that payment was to be made according to the agreement, the legal remedy on the bond would seem to be simple and obvious. The taking of the accounts may have been, and may now be necessary, to enable the obligor and his representatives to ascertain the proportion of the £10,000 to be repaid :---but the payment by him or them to Wilson, or Wilson 's representatives, in the first instance, is made to depend on no contingency whatever. The taking of the accounts, however may be quite unnecessary, as a preliminary to the putting of the bond in suit, and yet enough will remain to support the prayer for an account, and for specific performance of the agreement, which the bill contains---founded on the refusal to disclose the two years' profits, and on the consequent inability of the plaintiffs to ascertain how much they are entitled to, and for how much Burdekin should have become bound, over and above the £10,000 secured by the bond. These are clear grounds for the interpolation of a Court of Equity; and it is hardly necessary to observe, that then the Court exercises a jurisdiction to do complete justice, instead of sending the party to Law to seek payment or damages. Now all that portion of the bill, which I have just referred to, is independent of the second portion; in which the other suits are referred to, and on which is founded the prayer relating to those suits. To this latter portion, a Demurrer may have lain. It is unnecessary now to say, however, whether it would or would not. Because, assuming that it would, yet the present demurrer, being to the whole bill, and not to that portion only, must (on the opinion expressed by me, that the previous portion is unassailable,) be disallowed.

It was said, that the present suit has plainly sprung from some deficiency in the other suits; that these suits closely relate to, or are connected with, the same matter as the present; and that, having been mentioned, and so their existence appearing on the face of the bill, any uncertainty respecting them, should have been removed by the plaintiff; that, in short, if the suits were not identical, that fact should have clearly appeared. But the foundation of the plaintiff's claim to an account, and to a specific performance, or payment, does not rest on the former suits. All which relates to them might be struck out of the bill; and the plaintiff's right to a decree, on the facts stated, would be untouched. It seems to me to follow, that therefore no uncertainty in the allegations respecting the former suits can affect that right. The demurrer would only have been sustainable, if there had been distinctness, and not uncertainty. Had it certainly appeared, and without doubt, that the former suits and this were for the same matter, the demurrer would then have been intelligible. But, because that fact does not certainly appear, the demurrer is in my opinion misconceived. All which was alleged with respect to the immediate cause of this suit, may be true. It may be that some deficiency in the former suits, of some kind, has led to the institution of the present. They may all, and probably do, relate in some way to the same subject matter. But before the plaintiffs can be deprived of the relief, to which they are otherwise entitled, it should appear to us, and we ought clearly to see, that the several suits do not merely concern, or relate to, but that they are in fact for the same matter. Nemo debet bos vexari (says Mr. Beames, citing the law maxim in his treatise on Pleas 136,) so constet Curiae quod sit pro una et eadem causa. But here it was scarcely attempted to be argued, that this really did appear to the Court. The judgment appealed from distinctly states, that the fact did not appear. His Honor allowed the demurrer, because the fact whether the suits were for the same matter or not, was uncertain.

It was argued, that that uncertainty left it questionable whether this suit were original or supplemental. But this is only another mode of putting the same objection; and the same answer will meet it. If the bill showed that the former suits were for the same matter, the demurrer would have clearly lain. But this is not shown, and therefore, as it appears to me, the demurrer should have been over-ruled. In like manner, it was said that there could be no plea in this case; because the office of a plea is, to bring new matters on the record---whereas here the pendency of the former suits already appeared. But this is also met by the answers already given. For, unless it appear by the bill that those suits and the present are for the same matter, (which is the one point necessary,) a plea alleging and showing that they are so would bring new matter on the record. But it is conceded, that the bill does not sufficiently show that the several suits are for the same matter. Therefore, a plea would have been the proper proceeding; and, for the same reason, a demurrer was the wrong one.

In forming my opinion, I have not been unmindful of the cases cited. But, in the view which I take of the matter, they have no application. It was not necessary to cite cases to show, that for uncertainty in part of a bill, a demurrer lies to the whole. This is only, however, where that part of the bill in which the uncertainty exists, is pertinent and material to the whole; so that if that part were struck out, the remainder would be incomplete and defective. Thus, it would be insufficient to show only a possible title, to the particular right or thing claimed, without showing the nature of that title. A defendant is entitled to know the nature of the case which he is to meet; and there must be such a degree of particularity and detail, as will raise some definite issue. But the certainty required may be supplied, where the stating part of the bill is defective, by averments in the charging part; if the latter be distinct and positive---not general merely, but specific. These, and these only, are the points decided in Houghton v. Reynolds , 2 Hare, 264. The bill there was by a devisee, to restrain the defendant from setting up certain outstanding terms, to defeat an ejectment; and also to compel him to deliver up certain deeds, as having been obtained by fraud. But, where a bill filed by the assignees of a bankrupt alleged, merely, that there were certain transactions between the bankrupt and the defendant, without more particularly stating their nature,) and that in the course of them the defendant made certain loans to the bankrupt, without stating what, or when, and that the bankrupt, as the defendant alleged, had executed some lease or assignment of his property, particularly described, to the defendant, but the plaintiffs could not discover on what terms, save that the defendant pretended he had bought the property, under an agreement to grant the bankrupt an under lease, at a rent equal to 8 per cent. on the loans, and on these vague statements the bill prayed a discovery and account, and that the plaintiff might be let in to redeem, it was held to be insufficient. That was the case of Wormald v. De Lisle, 3. Beav. 18. It requires no argument to show, how utterly unlike those cases are to the present. In the one, an uncertainty in the statement of the plaintiff's title affected the whole case. If he had no title to the lands in question, no part of the prayer could have been sustained. In the other, there was vagueness and uncertainty throughout. But here the plaintiff seeks two things. His case is complete as to the first; but (as we will assume) defective, because uncertainly stated, as to the second. It would, therefore, under ordinary circumstances, and according to the general rules of pleading, be bad as to the second matter only, but good as to the first. It so happens, however, that if there were not that uncertainty in the second matter, (that is, if the fact of identity between the suits could be certainly collected,) it would operate as a bar to the first. But since it is uncertain, how does the bar appear? By what rule of pleading does that matter, which in a plea would confessedly be defective, become sufficient as a bar, per se , when met with in the bill? Is the quality of nature of a statement changed, according to the part of the record in which it was found?---The utmost that could be contended would be, that so far as any statement is ambiguous, the construction must be against the party making it. Then, applying that rule, can we see that the two suits are for the same matter? If so, the objection as to uncertainty is at an end; and the case would stand thus. Had the statements relative to the previous suit been made by the defendant, they would have been defective. Taking them unfavourably for him , they would not show the identity of the suits. But, since they are here to be construed most strongly against the plaintiff, the identity is established.

I seek in vain for any one statement in the bill which--- however strongly taken---would justify that conclusion. Neither is any such conclusion drawn by the Primary Judge. His Honor, reading the charge in the bill as a statement, says--- "The plaintiff states that there is an account pending between the parties; and that there has been another suit instituted between them, which the defendants allege is for the same matter, but the plaintiff alleges is for a different matter." Now, to entitle the plaintiff to the relief which he seeks in respect of that suit , these allegations may be much too vague. But, in the teeth of such an assertion as the one last cited, (such being the construction put, in the judgment, on the allegations of the plaintiff,) to hold that nevertheless the two suits are for the same matter, or must be taken to be so, appears to me to be impossible. Yet, unless they are for the same matter, the prayer for the account , and the performance of the account , is not barred. The case, in short, is like that suggested at the bar. Supposing a suit for an account, with a pretence alleged that the plaintiff had released the claim; which the plaintiff denied to be true, but asserted that the release between the parties was to a particular effect---leaving it uncertain, from the statement, whether a release of the claim had been executed or not. It would surely never be contended, that any such uncertainty was a bar to the relief---if otherwise obtainable. But, if not, how would the case be varied, ( as it respects the claim to such account ,) had the bill gone on to pray the delivering up of the release, as for fraud---or any other ground? Yet the two cases seem to be parallel. The latter portion of the bill, I clearly conceived, would have been demurrable; but the former not. Where, as is the proper office of the charging part of a bill, matter is suggested for the defendant, which is then met by way of confession and avoidance , (that is, stating what is or may be the defence, and then invalidating or seeking to invalidate it by new matter,) here can be no doubt that if there be a confession, in point of fact, of the defence supposed, and no sufficient avoidance , the plaintiff would be out of Court on his own showing.--- A demurrer would, in such a case, be clearly the proper course. But if there were no confession , or it were uncertain (which would be the same thing in effect) whether there were a confession or not, I cannot imagine what ground there would be for a demurrer. Uncertainty in the plaintiff's case, of course, as has already been observed, is an obvious ground of demurrer. But here, the pendency of another suit for the same matter is ( quoad the plaintiff's right to an account, in the present suit,) no part, or no necessary part, of the plaintiff's case; but is, matter, exclusively, (I repeat, as far as the taking of the account is concerned,) for the defendants.

Other cases than those mentioned by me were referred to; but the proceedings will show why I do not notice them. Of Wortley v. Birkhead , 3. Atk. 809, (which was a demurer to a bill by a third mortgagee, brought after a decree in a former suit, to be allowed the benefit of a first mortgage, acquired by him since that decree,) it is sufficient to say that, there , the nature of the two suits, and that the former was precisely for the same object of the latter,---namely, to obtain a priority over the second mortgagee,---appeared on the face of the bill; for all the proceedings were set out, to those in the Master's Office inclusive. The plaintiff then complained, that the Master would not allow him to tack the old, to the newly acquired security; and the bill was, to try his right to do that. That, therefore, was clearly no case of uncertainty. The case of The Attorney-General v. The Mayor of Norwich , 2 Myl. And Cr. 406, merely decides this; that where a breach of trust in making certain payments is charged, every thing which might have made those payments, consistently with the case stated, legal and proper payments, should be denied--- and, if not, the bill will be demurrable. The other cases for the defendants, are about as much to the purpose as the one just mentioned. Bu they were in fact cited, chiefly, on account of stray expression in them, showing the general rules and principles of pleading; respecting which I have here made no question.

For the reasons given, I am of opinion that the judgment in this case should be reversed. My learned colleagues, however, think differently. It is not for me to anticipate any of the reasons which lead them to that conclusion. But I ought to say, that (owing probably to a misapprehension on my part) the only judgment which I had prepared myself to meet, was the one rested on the grounds of uncertainty. If the demurrer be sustained, on the ground that the identity of the several suits sufficiently appears, on the face of the bill, that is of course a clear ground on which to rest the judgment; but it is a new one. I cannot bring myself to the conclusion, that the identity does appear. The necessary allegations in the plea of another suit pending are, that the bill is "for the same matter, and to the same effect, and for the like relief a d purpose," as in the second bill. (Beames, 33.) It is requisite, that the whole effect of the second suit should be attainable in the first. Law v. Rigby, 4 Br. C.C. 60, Pickford v. Hunter, 5 Sim. 122. If not, the plea will be disallowed. Beames, 140. Coop. Pl. 274.--- And because this is a question frequently of difficult decision, the course is to refer the plea to the Master, to report whether the suits are for the same matter or not. His report on this point may not be excepted to. Finally, should this Court see that the new bill, though substantially for the same matter, embraces the whole subject more completely than the first, the second will be retained, and the defendant be put to answer; the first being dismissed with costs. For these positions I do not refer to any authority, because they will be found in every book of practice. But here, without any such report, or reference, or even an allegation that the suits are identical in scope and object, the allowance of the demurrer dismisses this bill at once. And this, on the ground that the suits are identical--- although we do not know what the prayer of the former bill was, (beyond, at all events, that there was a prayer for accounts of some kind , arising out of the same agreement,) and although the plaintiff denies, in express terms, that justice can be done in the former suit, "as well from its terms , as from the erroneous wording of the decree therein, and from other causes."

Mr. Justice DICKINSON: I am of opinion that the judgment of His Honor Mr. Justice THERRY should be affirmed.

The bill consists of two parts.--- The first, which is wholly contained in the stating part, shows a clear case for the interference of this Court in the plaintiff's favour for taking certain accounts. The second portion of the bill, which is contained in the charging part, states that the defendant admitted that the said accounts ought to be taken, but pretended that they ought to be taken in a suit yet in existence; and then charges that the decree in the said suit is so badly worded, that the Master has been unable under it to take the necessary accounts, or to reconcile the wording of such decree with the taking of such accounts as ought to be taken . By this charging part, the plaintiff appears to me to admit the existence of the former suit, and to avoid it by setting up the imperfect wording of the decree in it. He does not say that the former has no reference to the subject mater of the present suit, but that, from the wording of the decree, those accounts which ought to be taken cannot be reconciled with the wording of the decree. Now, as the plaintiff admits the existence of the former suit, and that certain accounts ought to be taken under the decree made in it, what other accounts than those mentioned in the bill in this suit could the plaintiff be interested in explaining to the Court, could not be taken under the decree in the original suit? The plaintiff's bill seems to me to be resolvable into three parts:--- 1st . A statement of facts, which, per se , would entitle the plaintiff to have accounts taken. 2nd. An averment that he expects the defendant will set up the existence of a former suit, and that in it the accounts might be more properly taken. 3rd. An assertion that the accounts ought to have been taken in the last mentioned suit, but that from the bad wording of the decree the said accounts cannot be taken under it. Upon the plaintiff's own bill, therefore, there appears to me an allegation of a suit yet pending, whose object was the taking the same accounts. The case quoted from Atkyns shows, that generally another pending suit is no answer to a bill; and that it makes no difference that the decree is imperfectly worded, as the plaintiff might have applied to the Court to have the wording of that decree amended. Could the defendants then have pleaded the former suit? I think not, because they could have stated in such plea no fact, that was not already in the bill. As then the defendants could not by plea take advantage of the former suit; as that suit, however the decree in it is worded, is a defence to the bill---and as its existence, and that the accounts ought to be taken in it are admitted by the plaintiff, he appears to me to have admitted himself out of Court; and therefore the demurrer must be sustained.

Mr. Justice THERRY. Having given a very anxious attention to this case when it was first argued before me as Primary Judge,--- and having expressed my opinion very fully upon it, I can only say that, having since bestowed my best attention on the case, in the further discussions that took place at the Bar, and in the communications of which I have had the advantage with the other earned members of the Court,---I see no sufficient reason to alter or vary the judgment then pronounced. As, therefore, anything I might now say would be but a repetition of what I have already stated, I deem it necessary only to declare that I abide by my original judgment; and on the grounds therein stated, I consider this demurrer should be allowed.



[1] See also Campbell v. Burdekin, 1848; Campbell v. Burdekin, 1850.

Published by the Division of Law, Macquarie University