THE SUPREME COURT. - (Civil Side.)

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TUESDAY. -- Exparte Saul Lyons, in the case of Abraham Polack v. John Thomas Wilson.  Their Honors delivered judgment in this case.

Source: Australian, 23 November 1839

Mr. Justice Willis. -- ``To discharge faithfully the duties of whatever situation we are placed in, is among the first objects of honest ambition: to be thought to have done so, I consider as the second."  [See the answer of Mr. Dunning the celebrated barrister, afterwards Lord Ashburnham, to the Address of the City of London.]  But these are objects never to be attained by yielding to the influence of temporary clamour, or by listening to the malevolence of vulgar vituperation.  It is with these feelings that I approach this case.  We have now to answer an application made by certain creditors of an absent debtor, to make absolute a rule Nisi, which has been obtained, to set aside, on the grounds of irregularity and fraud, a judgment and execution for £16,000, under a warrant of Attorney confessed to the plaintiff, who asserts that he also is a creditor, or is liable for promissory notes of the defendant endorsed by the plaintiff to this amount.  I am here constrained to say, with reference to the opposition to the rule which has thus been obtained, (but without meaning the slightest personal disrespect to any one) that strong assertions without proof, declamation without argument, and violent censure without dignity or moderation, are always, in my opinion, worse than futile; and I rejoice that the gentlemen who have so ably supported the rule, have observed a temperate and becoming course.  This application is for the equitable interference of the Court, or in other words, to its discretion.  ``Discretion," says my Lord Coke (4 Inst. 41-46) ``taken as it ought to be, is, 'discernere per legem quod sit justum.'  If it be not directed by the right line of the law, it is a crooked cord, and appeareth to be unlawful."  If discretion were arbitrary in the judge, he might introduce whatever novelties he thought proper; but, says the sage authority I have just referred to,  ``Novelties without warrant of precedents, are not to be allowed; some certain rules are to be followed; -- 'quicquid judicis, authoritate subjicitur, novitate non subjicitur.'"  The law, as at present applied in this colony, seems to me lamentably deficient for the due protection of creditors; it affords a striking contrast to the Roman Decemviral law, ``De inope diebitore in partes desecando," whereby we are told, on the authority of Quintillian, Coecilius, and Tertullian, and especially of Aulus Gellius, that if a debtor could not otherwise satisfy his creditors, they might (i.e. if they could catch him) cut him in pieces, and divide him among them, paying always, (according to a modern author), a due attention to fat, and lean, to meat and bone, to prime joints, and sparser portions fit only for soups and gravies."  Bynkershock and Dr Taylor explain this obscure law to mean that the insolvent might be sold as a slave, and that the division, was not of his body, but of the sum which it produced.  We have no such Court in this colony for the administration of the Bankrupt Laws, as that established in England by the stat. 3 and 4, Wm. IV., c. 47; wherefore it is clear that the Bankrupt Law cannot now be administered here as it is at present in England.  But as in Gibraltar a similar deficiency was readily supplied by a brief legislative enactment, there seems no sufficient reason why the same benefit should not be in like manner extended to this colony.  The bills complied by Mr Justice Burton, and recommended by the judges, (myself among the rest) to the Local Legislature, are so opposed by the evidence given by many practical men, that I confess, however preferable they may be in theory to the English Bankrupt Law, yet the latter being fully understood and acted upon in the mother country, would probably give it a decisive advantage to any other law relative to insolvent traders in this colony.  Indeed it may yet be a question whether the consolidated Bankrupt Law of stat. 6, Geo. IV., c. 16, is not so materially applicable, as under the subsequent Act of 9 Geo. IV., 83, to be in force in New South Wales.  This, however, I am not now called upon to decide; although I shall hereafter have occasion to allude, particularly to the fifty-second section of the 6 Geo. IV., c. 16, with reference to liabilities.  I think the irregularity complained of in the case before us may be considered, first, with reference to the mere form; and secondly, with regard to the substance of the proceedings.  With respect to the irregularity in point of form, I at once exclude from my consideration all objections on account of any mere technical omissions in the Judgment Roll, however fatal in strict law they might well be deemed.  The absurdity of preferring a strict attention to mere technical phraseology to substantial justice, is thus happily exposed by a recent author on the study of the Civil Law:  ``In order," says he, ``to understand the rigid adherence of the Romans to their 'formulae,' let us borrow an analogy from our cries (the London cries).  Let us suppose that muscles could be sold, -- could only come 'sub hasta,' lawfully as lily white muscles!  That the purchaser of a mutton-pie, in market overt, might not repose on the security of his title without this solemn announcement of the sale, mutton 'pies!  hot!  hot!  hot!' two hots only being clearly vicious; that the transfer of the possession of hot cross buns, for a valuable consideration, was ineffectual unless they had been proclaimed in the usual solemn and legal terms, 'Hot cross buns!  hot cross buns!  one a penny, two a penny, hot cross buns!'  that if 'a word, or a syllable, had been omitted, the transaction was a mere nullity, the vendor was compelled to restore the coppers, and the purchaser to make a specific restitution of the buns; the Praetor, in aid of his authority, calling in ipecacuanha, tartar emetic, and camomile tea."  (Stomach pumps were unknown in those days).  The second objection on the ground of irregularity appears to me of much more importance.  Although the fifty-second Rule of Practice prescribed for this Court does not, as my friend Mr a'Beckett is reported to have said, refer to warrants of attorney, that is, in express terms, yet, as in the present case the judgment is in debt for a penalty where nominal damages are recovered.  I see no reason why the plaintiff should not, and every reason why he should, at the time of suing out execution, besides endorsing the sum claimed as due on such execution, have delivered into the office of the Supreme Court, an account of what was, (if indeed anything were) justly and bona fide due to him, verified upon oath, according to the terms of the rule.  I think the rule applies to execution on all judgments of the kind mentioned therein, however obtained, and that it is more peculiarly requisite that it should be rigidly observed where execution is issued, on what I will venture to call the secret, or at all events, less notorious judgments, confessed on Warrants of Attorney, than on any others.  As therefore this rule has not been complied with, I should have no hesitation on this ground alone in declaring that the proceedings should be stayed.  It is stated in the defeazance, (which I am bound to presume, as far as it goes, is correct,) that the judgment is to secure £16,000, for which amount the plaintiff hath, for the use and accommodation of the defendant, endorsed promissory notes to enable him to purchase steam boats -- to enable him to purchase an estate at Gundaroo -- and for the accommodation of the said defendant Wilson in the way of his trade and dealings; and that the plaintiff was to be at liberty to sue out execution for £16,000, or so much as was due at the time of suing out execution, whether such promissory notes shall or shall not at such time be due and payable.  Now, why was not an account delivered of so much as was justly and bona fide due to the plaintiff, and verified upon oath, and at the time of suing out execution, as prescribed by the rule of Court?  If there were really any present debt, thought payable at a future period, "debitum in praesenti solvendum in futuro," there would have been no difficulty, for the rule only requires what is justly and bona fide due, not what is payable, to be sworn to.  If indeed the plaintiff were similarly circumstanced with regard to this debt to Mr Saul Lyons, who, my friend Mr a'Beckett is reported to have said ``showed, not that Wilson was indebted to him, -- oh no, -- but that he held notes of Wilson's, not yet due, to the amount of £4,700; and there was nothing to show that, when due, these bills would not be paid; moreover that there is nothing to show that Wilson is not at the present time solvent;" then I can easily conceive why the rule was not complied with, Lyons indeed may have given a valuable consideration for his notes, but the plaintiff admits upon record that the judgment was confessed merely for bills endorsed for the use and accommodation of the defendant; not one of which by the schedule or account B annexed to the plaintiff's affidavit (so far as I understand it) appears to have been paid at the date of the judgment and execution; if ``there be nothing to show that Wilson is not at the present time solvent -- that Wilson will not come back and pay the notes" -- what becomes of the plaintiff's assumed debt, which, in fact, is a mere liability?  The plaintiff is but the endorser of accommodation notes for a party who may, it is asserted, still be solvent.  Where is the "debitum in praesenti, solvendum in futuro -- the present debt, though payable in future -- where is the ground for issuing execution for the liabilities mentioned in the defeazance when there is nothing due?  Before the stat. 49. Geo. III., c. 121, s. 8, which, previously to its repeal, was known as Sir S. Romilly's Act, where one person for the accommodation of another, put his name upon a bill or note, and the party thus accommodated became bankrupt, and afterwards the party accommodating was compelled to pay the amount of the bill or note, he could not prove it under the estate of the person for whose accommodation he paid it, for no debt accrues until the payment of the note.  [See Roscoe on Bills of Exchange, p. 328, and the cases there cited.  See also Roscoe, p. 320, and exparte Holding v. Glynn and Jam, p. 97.]  To remedy this grievance the stat. 49, Geo. III., c. 121, s. 8, was passed, which was repealed, but in substance re-enacted by the 6th Geo. IV., c. 16, s. 52, (the Consolidated Bankrupt Law I have already alluded to), and it has been held by Lord Eldon (Exparte Young, 3. Ves. and Bea. 40, Exparte Lloyd 1. Rose 9.) that although in strictness an accommodation acceptor is not a surety, yet he is a person liable under the act.  The very fact, however, of the person being merely liable under the act, shows that but for the act such liability would not have been available even in bankruptcy.  How then can it be pretended that previously to any bankruptcy or insolvency any such liability can be made available, or constitute a debt for which execution can be issued?

No legal debt accrues till payment of the bill or note; no such payment has yet been made, nor do we know that it ever will be made, or even sought for from the plaintiff.  Where then is his debt, if the facts be according to the statements in the defeazance?  And if there be no debt the execution at all events is manifestly irregular; for before there can be a levy for a debt, the debt must be due -- there must be something due for which the levy is made.  But it is now said, if I understood my friend Mr Foster correctly, that mere liabilities like the plaintiff's are sufficient to support this execution.  It was not so stated in his argument, or that of my friend Mr Windeyer, for in answer to an observation of mine, they admitted that what they contended for, was, that the plaintiff's demand was debitum in praesenti, solvendum in futuro.  Cases, however, are now cited in order, if possible, to persuade the Court, not that a future debt, but that a bare liability is sufficient.  In the case of Barber v. Barber, 3 Taunton, so much relied upon for the plaintiff, there was an existing debt; the Chief Justice said if the levy had been for more than the amount of the bills the defendant had paid, the Court would set aside the execution as to the surplus.  In Martin v. Martin, 3 Barn. and Adolp., the warrant of attorney was set aside on the ground of fraud, there being no debt, the son having declared he considered it as a gift: a case so strongly in favour of the present application that I should deem no other necessary to induce me at once to accede to it.  Toussaint v. Martinant merely shows that at law when the penalty of a bond became a legal debt, and as soon as it was forfeited, it might have been proved under a commission of bankruptcy; and in Martin v. Court, which like the former case is reported in 2nd T. R. the bond was an absolute bond, payable to the plaintiff; at all events, it was debitum in praesenti, solvendum in futuro, and might have been proved under the defendant's commission.  Lord Henley in his work on Bankrupt Law, page 150 and 151, after commenting on the two last mentioned cases, and alluding to Exparte Curtis, and Exparte Lee (in Cook's Bankrupt Laws,) says, (citing Exparte Bloxam, 8 ves. 531.)  ``It seems now to be a settled rule, that the surety claiming to come in as a creditor, must, before he can be permitted to prove, take up his own bills, or exonerate the bankrupt's estate from the original defendant.  In the case referred to in Bacon's abridgment (in vol. 1, p. 598 and p. 601), show that there must have been a debt before a party could have proved in bankruptcy, but here there is no such thing -- merely a bare liability which never may become a debt."  The plaintiff swears, by his affidavit, filed in answer to the present application, ``That the defendant was indebted to him in various sums of money, more clearly specified in account marked B, that on the 2nd of October (the day on which judgment was obtained) plaintiff and defendant made up their accounts, when it appeared that the sum of £16,000 was due to the plaintiff on account of the sums remaining due for the purchase of the plaintiff's business, and on account of various securities and liabilities given by plaintiff for defendant, viz: the sum of £1,000, due 12tfh October, being the fourth items in the first column of the said account marked B, and the defendant admitted the said amount to be correct, and that to secure plaintiff the said sum of £16,000, he executed the warrant of attorney.  That at the time of executing the said warrant of attorney and entering up judgment thereon, plaintiff had incurred bona fide liabilities on behalf of defendant to the amount of £14,000 and upwards, and that the said liabilities consisted of no others than those mentioned in the defeazance to the said warrant of attorney, and that the particulars of the liabilities are set forth in the account marked B, and comprise the whole of the items in the said account, with the exception of £2,000, being the ninth in the second column, which said £2,000 is the sum remaining due from the defendant to the plaintiff on account of the purchase of his business."  Thus it seems that the liabilities, the accommodation endorsements, for which alone, according to the defeazance, judgment was entered up, in fact amounted to only £14,000.  The judgment is entered up and execution issued for £16,000.  The £2,000 for the purchase of the business is not yet payable, and is not mentioned in the defeazance, nor is there any thing to show that it was, or that any other notes given by the defendant to the plaintiff, not yet due, were intended to be included in the judgment, which is expressly stated to be a security for the plaintiff's liabilities for his endorsements, amounting to £14,000.  I do not think, therefore, that the £2000 for the purchase of the business, and this ninth item in the account, or any other notes given by the defendant to the plaintiff, can now be honestly brought forward as debts due from the defendant, to support the proceedings now sought to be set aside; proceedings, in my opinion, obviously irregular, and bearing in themselves internal evidence of fraud -- proceedings which, I must add, according to Mr Poole's own affidavit, are but little to his credit, with reference to the care and caution which ought invariably to be observed by an attorney of this Court.  But were these proceedings of themselves free from reproach, I think the circumstances that led to them (as I recollect those circumstances from the affidavits) evince as much of what is called in the Roman law, suppressio veri et suggestio falsi -- in plain English, a fraudulent misrepresentation -- that such proceedings can never be supported.  Fraudulent misrepresentation, on the part of this plaintiff, for the purpose not only of obtaining from this Court, but also of more easily availing himself of what I consider a fraudulent judgment -- a judgment which, but for such representations, would probably now have been impugned not by mere simple contract creditors, whose standing in Court, as such, the plaintiff has attempted to dispute, but would have been attacked by actual and bona fide judgment creditors entitled to levy for their debts, and having a more immediate interest in disputing the plaintiff's claim.  Moreover, the more property the defendant could acquire (no matter in what manner,) the more there would be to satisfy the judgment, and the defendant's chance of increasing his property would certainly not have been improved had it been known that he had given the plaintiff a security for £16,000, and was really in such circumstances as to make his friend, the plaintiff, think it requisite to obtain it.  The creditor appears to me to have concurred with the debtor to delude the world in respect to his circumstances, prompted, as I think may fairly be inferred, by the views I have alluded to.  Other motives could easily be suggested, but these I think will be sufficient to account for the way in which the warrant of attorney was procured, the judgment entered, the subsequent concealment of this fact, and the representations of the defendant's prosperity, up to the time of his departure, by the plaintiff.  It appears from the plaintiff's affidavit, that his connexion with the defendant was induced from the defendant's representation that he had a claim of £26,000 on a Mr Burdekin, and that Mr Norton, solicitor, told him (the plaintiff) that Burdekin was indebted to the defendant in a large amount.  I have only to observe that the accounts between the parties on which this balance was supposed to rest, were by me, in the equitable jurisdiction of this Court, made a subject of reference to our respected Chief Clerk, and that no report has hitherto been made.  This statement, therefore, can merely be matter of assumption.  As a proof, however, of the plaintiff's real belief in it, -- as a test that he never in fact acted on the faith of a large balance being due from Burdekin to Wilson, -- it is only necessary to quote from the plaintiff's own affidavit -- ``that he was applied to by the defendant, who stated that Burdekin was willing to allow him to repossess himself of a certain steam vessel called the Tamar, which was then the property of the said Thomas Burdekin, on plaintiff's giving to the Budekin, plaintiff's endorsement for the amount thereof."  And the plaintiff's affidavit goes on to state (the plaintiff, be it remembered, who swears he was induced, in consequence of the representation that Burdekin was indebted to defendant in a large sum of money, to enter into his connexion with the defendant,) that being applied to by the defendant, who stated that Burdekin was willing to allow defendant to repossess himself of a certain steam-vessel, called the Tamar, which was the property of Burdekin, on plaintiff's giving his endorsements to Burdekin for the amount thereof -- plaintiff, under the impression that defendant was in good circumstances, " (circumstances according to the prior part of plaintiff's affidavit which rested chiefly on the debt to defendant by Burdekin,) ``was induced to endorse defendant's bills for the purchase money of the said vessel."  If the plaintiff really believed, as he has sworn that Burdekin was largely indebted to the defendant, why should not the purchase money of the steamer have been set off against this debt?  Wherefore the necessity of giving security to one so largely indebted to the defendant, and on the faith of which debt the plaintiff swears that he connected himself with the defendant?  The plaintiff's affidavit goes on to state that the plaintiff endorsed these bills ``upon condition that the vessel should be assigned to the plaintiff as a security for the purchase-money" -- a condition made, no doubt, in utter forgetfulness that Burdekin was indebted to the defendant in a very large amount; and, also, as the affidavit proceeds, ``that a warrant of attorney should be given to recover any loss or risk that might arise, and that such an arrangement was carried into effect."  Thus though the plaintiff was convinced that Burdekin was indebted to the defendant in a large sum of money, he thinks it necessary to insist upon a security on the vessel sold by Burdekin to defendant, for the price of which, if any such debt really existed, the defendant could not have been liable to Burdekin.  Need I say, that although the plaintiff denies that he ever said ``that there was not a nail in the steamer belonging to any one but the defendant," that nevertheless it does not appear that the plaintiff ever mentioned his own security -- nor is it contradicted that he represented, even so late as the 18th of October, to Mr Wyatt, that the defendant could pay thirty or forty shillings in the pound -- a statement that the plaintiff does not venture to contradict; that the plaintiff always represented defendant as in excellent circumstances; that he said that the defendant was getting £10,000 per annum by the auctioneering business; that the defendant was ``all right" on the 17th of October, and could pay twenty shillings in the pound as well as anybody: need I, I repeat, add to all this, and go farther into the affidavits filed on this occasion, to show that this is a case in which even if the plaintiff were entitled to implicit credence, the court could not do otherwise (regard being had to the current of authorities of equitable interference with respect to fraudulent securities) than grant the present application, with costs, against the plaintiff?  Whether Mr Saul Lyons has, or has not, such a debt as entitles him to interfere, is to me a matter of perfect indifference: there is at least one creditor, Kemp, who furnished the sails for the Nercus, whose debt is indisputable, and who might be defrauded if these proceedings were not set aside.  But were there no creditor, the Court itself would never, I think, allow its process to be thus irregularly used and made the means of such gross injustice, as it would be, in my opinion, if the judgment and the execution which the plaintiff, under the circumstances I have mentioned, seeks to enforce, could for a moment longer be permitted to prevail.  Thus have I endeavoured to explain the principles which, in my opinion, should govern this Court in adjudicating on applications like the present, to its equitable jurisdiction; that regardless of mere technical form, but vigilant to substance, the principle of a just rule of practice should not be permitted to be neglected -- or the records and process of the Court in private judgments be in any wise inconsistent with the rules respecting them in the ordinary course of business -- and that the proceedings in this case are, on the face of them, not only irregular, but convey a pregnant suspicion of fraud, a suspicion so far generated into demonstration from the facts disclosed by the affidavits presented on this occasion, (more especially by that of the plaintiff himself,) as fully to warrant the conclusion I have arrived at, I bow with filial reverence in the exercise of all equitable jurisdiction, to that great parent of this branch of jurisprudence, the Roman Law, (law greatly to be admired, notwithstanding the rigidity of its forms), law which prescribes, even where there be no fraud, ``that if payment be made after a debtor absconds, it shall be returned and divided equally among the rest of his creditors, as the debtor seems, by absconding to have left his estate equally among them." -- Wood's Civil Law, p. 263, Dig. 42, 8, 16.  In this case the purity of the proceedings of the Court, and the repression of manifest fraud, evidently, I think, require that no such exclusive levy as that of the plaintiff for what may never be a debt, shall prevail.  But without the aid of the Bankrupt Law, I know not how I am enabled to follow out the principle, and enforce an equal distribution of the debtor's estate.  In conclusion, I am of opinion that the rule should be made absolute, with costs.

Mr. Justice Stephen -- This is an important case; not more so to the parties interested, than to persons in business in this colony, as involving a principle of extensive application.  I have looked at it, therefore, and into all the evidence adduced in it, with considerable anxiety; and I hope that the conclusions at which I have now arrived, are just.  It is natural to feel some hesitation and distrust on such an occasion.  No case that I know of has been yet decided, which carries the principle of interference with a warrant of attorney, on a summary application, and at the instance of third parties, so far as we have been asked to carry it in this.  And the application itself is from a host of persons, obviously full of suspicion, and willing to act on suspicion only, against a creditor who has no one to support him; because, even if he shall be shown to have availed himself of no more than his just rights, he will be the single fortunate exception, in obtaining payment of his debt in full, whilst the other creditors are left without a shilling.  This state of things, and the eagerness which has been manifested to press into the service of the general creditors every circumstance, however paltry, on which might be hung the merest shred of distrust to prejudice this solitary antagonist, have induced me to be extremely wary of falling in too readily with the prevailing current.  Thus, we had before us the mysterious account of a weighty box; an earnest conversation in George-street; the direction of a levy on the furniture; a story about sugar, and the ship Hope; the changing of bank notes; and even the most ordinary answers to letters, that all was right, were tortured into something wrong.  The most suspicious of the twenty-three witnesses against this person will, doubtless, now acknowledge that in all these matters there is simply -- nothing.  There is nothing to show, that Polack connived at, or knew of, his debtor's intention to escape; nor anything to show that Wilson, up to the day of his departure, was not solvent, or at least supposed by his creditor to be so.  Other circumstances, indeed, in Polack's conduct, it is not so easy to dismiss.  There is his sudden sending for a solicitor, who does not appear to have been previously employed by him, to prepare a warrant of attorney, -- and the sudden issue of an execution under it, at a period, the selection of which is certainly not at all accounted for.  Considering that this was but sixteen days before his debtor fled, leaving to him alone the means of payment, the circumstance undoubtedly seems a suspicious one.  So, the story told by him about the production of an account, agreed to by Wilson, but not identified by the solicitor, nor produced to this Court (for the schedule annexed to this affidavit is evidently not the same) and the inconsistency of that schedule with the terms used in the defeazance, descriptive of the claim for which that warrant of attorney was given.  All these circumstances are suspicious.  But, the difficulty that I have felt throughout the case, and which (except on one point) I feel still, is, to what do these suspicions tend?  This Court is not to invent punishments for every species or instance of fraud; even if for suspicion we were to substitute proofs.  Do they show that he was guilty of fraud, in the taking of the warrant of attorney?  If they do not, I know of no authority on which we may inflict the punishment of depriving him of that warrant of attorney.

But we have no right to say that in any of those circumstances there was such fraud.  Unless, by adopting the Bankrupt or Insolvent Laws we introduce into mercantile affairs the principle of equal distribution and equal payment amongst creditors, I am aware of no law which restrains a debtor from making the most partial selection imaginable.  It is undeniable, that Polack had, bona fide, prior to this warrant of attorney, become responsible for Wilson -- even if we exclude the items objected to -- in a very large amount.  The latter had, therefore, a perfect right to give, as the former had to accept, a preference in payment over all the rest of mankind; and that, although in immediate contemplation of insolvency.  The source of remedy for such a state of things, is not this Court, but the legislature.

Neither do I conceive that this warrant of attorney could be vitiated, or deemed fraudulent, because it sought to include more than by law it could legally secure.  It is shown by many well-known decisions, that the judgment in such a case may be disallowed for part, and the remainder stand unimpaired.  So, I see little force in the objection, that here is a judgment in debt, as for money borrowed; and there is, in strictness, no debt, or at least no money borrowed.  This is a matter almost of pure form.  In practice, almost every warrant of attorney is thus worded; although, perhaps, the real transaction may be of a complexion wholly different.  In all such instances, the only question is, whether the instrument is supported by good consideration.  If it be, the exact nature of that consideration is immaterial; for by the record of the judgment (supposing it warranted by that instrument), the party is concluded.  Now, it has been held, and over and over again acted upon, but a mere liability, though it may be defeated by a contingency, is a good consideration for a security.  And, if that security be absolute, it may be then proved as a debt, I conceive, under the Bankrupt Laws.  But with the latter inquiry, I think, we have at present nothing to do.  If a man incurs for another such a liability as Polack here incurred for Wilson, it surely must form a good consideration for the giving of a warrant of attorney -- calculated to secure himself from risk of loss.  One's own sense and reason tell us that this must be so.  But, how could that risk be avoided, if a surety is to wait till the day of payment comes, -- before which all his debtor's property would be swept away? 

Applying these principles, there seems no valid objection in law, to any part of this Warrant of Attorney.  But as to part, at all events, it would be good.  Referring to the schedule, as explanatory of the defeazance, Polack is, as to some of the notes, the payee.  As to those, therefore, Wilson, as the maker, was directly liable, and each formed a debt consequently to Polack, even in the strictest sense.  On the other hand, as to some of the notes, Polack was the maker; Wilson being the payee.  Here therefore, in the strict sense, the debt was the other way.  Yet to these, the case in 3 Taunton applies; if the distinction be worth any thing, that in that case, the surety was primarily liable, and bound to pay at all events.  However, such is the loose and unsatisfactory manner, in which the schedule and defeazance are sought to be connected together, that it would in any event still remain a question, which of the notes the latter legitimately covers.  If Polack, as such payee, afterwards endorsed the notes for Wilson's accommodation, those notes would, in terms as well as in spirit, be so covered.  But with regard to the notes of which he was the maker, although we assume those also to be for Wilson's accommodation, the case is not so clear.  The defeazance seems only to extend to notes, endorsed, not to notes given.  However, as to some of the items, I can entertain no doubt.  The item amounting to £80, and the several notes forming the £2000 item, have clearly no right to be included. And I much question whether they ever were meant to be so.  As to the Fairfield Estate bills, they are expressly referred to by the defeazance.  But, considering the nature and origin of the plaintiff's connexion with those bills, one can scarcely read the description there given of them without indignation.  I will not say that this indicates fraud, for I scarcely see to what it would have pointed.  Nay, considering the hurry with which the giving of this judgment seems to have been concluded, I would even express a hope that there may have been some mistake.  But until Mr Polack can show that these bills really were endorsed for the purpose pretended, I could never consent to the judgment being allowed to cover them.

 It will thus be seen, that I maintain the right of this Court to prevent injustice being done to creditors, in a case of this kind, by an excessive or mistaken levy, even though no fraud be proved.  And I am prepared to assert the same right, at the instance of creditors, in the case of an erroneous or improper judgment.  It is certain that I have met with no case which, in terms, extends this length.  But if we examine the principle on which relief was given, in the case of Harrod v. Benton, and Martin v. Martin, and the observations of Mr Justice Tauntnon, especially in the latter case it will be seen that that principle is wide enough to reach it.  At all events, this is a peculiar case.  The defendant is absent, and the creditors have as much interest in the property here, entitled as they are to a foreign attachment, as they could possess if in immediate expectation of an execution.