been made except by consent. The object of this consent order was to enable the Court to decide the question in dispute respecting the bond, without the expense and delay attendant on a suit in equity. The order of the Master of the Rolls of the 29th of June, 1829, whereby he directed that issues should be tried at law respecting the consideration of the bond, was appealed from by the Appellant upon grounds which equally apply to the present case, namely, because it was a departure from the principle of the consent order of the 28th April, 1827, and was moreover unnecessary, inasmuch as it is not pretended that there is any person in existence who can give additional evidence respecting the bond. The House of Lords, on that appeal, adopted the Appellant's views, and upon that principle, by an order of the 14th October, 1831, reversed the order of the Master of the Rolls directing the issues. The order now appealed from is open to the same objections (amongst others) which prevailed against the order of the 29th June, 1829, and cannot be right, unless the order of the House of Lords, reversing the directions for the issues, was wrong. And the Appellant cannot but feel aggrieved that he should be subject to the ruinous charge of litigating, in a new, dilatory, and expensive form of proceeding, a question, every part of which was fully before the court below. The order has been made for the purpose of enabling the Respondents to question the validity of the bond, upon grounds which are grounds which are now open to litigation. The Respondents originally contended before 1834. NICOL บ. VAUGHAN. 1834. NICOL v. VAUGHAN. the Master that the bond for 12,000l. was a bond of indemnity, and made no other objection to it. The Master, by his report of the 21st of May, 1828, found that the bond was not a bond of indemnity, but was a voluntary bond, given without any consideration; and the order of the House of Lords of the 23d of July, 1832, ordered that the Master's said report of the 21st of March, 1828, should be absolutely confirmed. That point, therefore, is now concluded. A second and different objection is now made to the bond. It is now said, that, admitting the bond to be voluntary, it is impeachable in equity, on account of the relation in which George Nicol stood to the Ladies Ker. Now, in the interval between the order of the House of Lords of the 14th of October, 1831, which reversed the order of the Master of the Rolls, directing the issues, and the order of the 23d of July, 1832, confirming the Master's finding that the bond was a voluntary bond, the Respondents had a full opportunity of making this second objection, supposing them not to have been even at that time precluded from raising it by the previous proceedings before the Master. That all the facts were then before the court below is established by the proceedings. The Appellant's petition, which was presented after the order of the House of Lords of the 14th of October, 1831, was confined to a prayer for confirming the Master's report, and did not go on to pray for payment of the money, simply because it was perfectly known to all parties that the money was in Scotland, awaiting only the determination of the question then before the Court, and ready to be paid to the Appellant the instant that ques tion was decided. That was the time at which the Respondents might have presented their petition to the Master of the Rolls, praying that if the bond were held to be voluntary (as your Lordships have since determined it to be) their second objection to the bond might be heard and determined. The Respondents did not think proper to take that course. They had, in fact, at all times previously relied upon a single and different ground of defence. Where, as in the present case, a party relies upon two distinct defences, and all the facts necessary to raise and to enable the Court to determine both grounds of defence are before it, such party cannot be permitted first to abandon one of his defences, and carry his opponent through a long and expensive course of litigation confined to the other, and when his case fails him upon the ground he has selected, to re-assume the defence he had abandoned, and in effect commence an entirely new course of litigation. The ruinous expense already incurred by the Appellant in litigating the questions in the case, is itself a consideration deeply affecting the justice of the case. For the Respondents, The bond for 12,000l. from the Ladies Ker to Mr. Nicol, appears to have been made under circumstances which would induce a Court of Equity to set it aside, upon the principles which are universally applied to gifts to persons standing in a relation of trust or confidence towards the donor. There is, at all events, so much suspicion as to the circumstances under which the gift was made, as to render it fit that further investigation should be had. 1834. NICOL บ. VAUGHAN. 1834. NICOL V. VAUGHAN. The controversy between the partics hunerto has been, whether the bond was to be considered a voluntary bond or a bond of indemnity, and until it was established not to be a bond of indemnity, but a voluntary bond, it would have been premature, and, in fact, impracticable, to discuss its validity considered as a gift. For the Appellants, Sir Edward Sugden and Mr. Tinney. For the Respondents, Mr. Pemberton and Mr. Hope. The Lord Chancellor.-In October, 1831, the House reversed an order of his Honour directing three issues to be tried, and on the ground that the evidence was all before the Court, and that the Court could then dispose of the question, whether or not the bond was an indemnity or counter-security. The Master of the Rolls then considered that question, and came to the conclusion that as to 10,000l. the bond was a counter-security, and as to 2,000l. it was a voluntary gift in remuneration of services. The House of Lords, in July, 1832, reversed the declaration as to the counter-security, and confirmed the Master's report absolutely, finding that the whole bond was voluntary, and a gift and bounty from the obligors to the obligee." After this decision both parties petitioned; one (the Respondents) for leave to institute a suit to impeach the validity of the bond considered as voluntary and a gift, and for an injunction to restrain the Appellant from receiving any part of the money set apart in Scotland for the payment of it; the other (the Appellant), for computation of in terest due on the bond, d to have that, with the principal, paid out of the Scotch fund. On both petitions the order appealed from was made. It gave the Respondents the leave they asked to impeach the bour in a new suit, taking it to be bounty or gift; and it ordered the Appellant's petition to stand over, in the meantime restraining him from receiving the money. That the Court below had the power to make this order there cannot be any doubt; it was in the discretion of the Court, but a discretion to be exercised soundly; and the question is, whether or not, in the circumstances of the case, that discretion ought to have been exercised as to granting the leave-in other words, whether your Lordships, having before you the case which was before the Court below, would have given the leave; and I am of opinion that you would not, and ought not to have given it. The case set up against the bond for the first time is, that, from the relation subsisting between the parties, a Court of Equity would not suffer the obligee to take advantage of the obligor's bounty. Now this case might have been made in all the former stages of the long litigation, to the end of which it may be hoped that we are now approaching. The objection, now first relied on, is one which was open to the Respondents from the beginning; and it would have decided the cause in their favour, whether the rest of the case had been with them or against them. They then relied upon the different ground of which the decisions of this house has deprived them -that the bond was a counter-security. But if 1834. NICOL บ. VAUGHAN. |