SUPREME COURT. { WRIGHT AND OTHERS v. } COMMON LAW. cases. On the contention by the other side that no priority of contract existed between the plaintiffs and defendant, and that it was not the plaintiffs' money which the defendant received, a debt or chose in action being property, if a person received that property and converted it into money, the debt itself created a privity between himself and the person to whom it belonged Tugman v. Hopkins, 4 M. & G., 389 Stead v. Thornton, 3 B. & A., 357 (note). Again, supposing that Mr. Bakewell, as a mere stranger, had received the money, he would be bound, assuming it to be in payment of a debt due to the plaintiffs, to hand it over to them— Munk v. Clarke, 10 Bing., 103, 2 N.C., 299 The Court would uphold the plaintiffs on that point, especially having in view the case of Moses v. Macferlan, 2 Burr., 1012, which had been before referred to. A number of cases had been cited on this point which had no bearing whatever, such as Stephens v. Badcock, 3 B. & A., 354 Williams v. Everett, 14 East., 582. In these cases agency intervened, which created an entirely different state of things from that shown in the present case. Then, to show that the defendant had not received the money unwittingly, it was proved that he had given Messrs. Elder, Smith, & Co. an indemnity, by which he undertook to satisfy plaintiffs and discharge the debtors from liability to them. It was clear that where a person having no title unlawfully assumed a title to debts, and received money and gave discharges, such discharges must be taken to be on behalf of the person entitled to the debt, who could recover the same as for money had and received for his use— Miller v. Atlee, 13 Jur., 431 Barlow v. Brown, 16 M. & W., 128 Heath v. Chilton, 14 M. & W., 632 Allan v. Impett, 8 Taunt., 263. SUPREME COURT. { WRIGHT AND OTHERS v. } COMMON LAW. The next point taken for the defendant was that the plaintiffs' assignment never operated, was satisfied, and was void against the defendant. The recital in the deed of assignment showed that the consideration had been received, and the defendant was estopped from saying that the recital was not a true one. The mode in which the advances guaranteed by plaintiffs were received by Daly & Price, through an account opened at the Bank of Adelaide in Wright's name, did not affect in any way the substantial fact of their having received the money, and consequently consideration had been given in effect, and the Bank were parties to it. (GWYNNE, J.-You do not contend that there was privity of contract between Daly & Price and the Bank?) Yes, because the Bank were parties to this arrangement, and the money, being advanced to Wright, was only as a means of carrying out this arrangement. If the Court thought differently, however, the first advance of £500 by the Bank to Daly & Price was sufficient. On the question of misdirection by the learned Judge who tried the case, as to the application of the Registration Act, No. 8 of 1842, that Act was never intended to apply to choses in action, which were not seizable by fi. fa., and would not therefore apply to deeds of this nature; and the Judge directed the jury that there was no evidence of fraud in connection with the assignment to the plaintiffs, that while assignees in bankruptcy might under certain circumstances claim protection from the Statute 13 Elizabeth, no such right would attach to defendant by virtue of his assignment, and as he claimed only under this assignment from Daly & Price, he was estopped from setting up their assignment to Fuller. Then under the arrangement between Bakewell, Daly, and Fuller, the former was to receive the book-debts of Daly & Price, and hold the same as stakeholder for any one who might be entitled to them, and with special reference to the assignment to the plaintiffs. This did away with Fuller's claim as assignee under insolvency. With reference to what constituted fraudulent preference under the various Acts cited Bayspoole v. Collins, 22 L.T., N.S., 650, shows that while assignees in bankruptcy may take cognizance of frauds under the Statute of Elizabeth, under the bankruptcy laws I SUPREME COURT. { WRIGHT AND OTHETS V. } COMMON LAW. they can only take advantage of fraud committed within a year of bankruptcy, and when the petitioner's debt was due at the same time. These circumstances did not exist here, and consequently no question of fraud could be raised; in fact, no case could possibly come before the Court where less evidence of mala fides could exist. Twyne's Case, 1 Smith's L.C., 11, shows that preference may be made to one creditor if transaction is bona fide. Referring to suggestions made during the trial by the counsel on the other side, that the fact of the assignment to the plaintiffs had been improperly withheld from Mr. Bakewell, there was no presumption that the assets of Daly & Price were to be transferred to the new firm, or that there was any duty cast on the plaintiffs to announce their claim in such assets. cited De Pothonier v. DeMattos, E. B. & E., 461 Darvill v. Terry, 6 H. & N., 807 They also Whitmore and Another v. Claridge, 33 L.J., Q.B., N.S., 87. Ingleby and Way, in support of rule.-The Court of Equity alone is competent to decide between the conflicting claims of the various parties concerned in this case; and debts being chattels or personal property must be subject to all the laws affecting personal property. The consideration for which the assignment was given, namely, a guarantee to the Bank by the plaintiffs for sums to be advanced by the Bank to Daly & Price, has never been performedand in fact no advances have been so made; under these circum, stances the property in the debts never passed to the plaintiffs, or if so it almost immediately re-passed to the assignors by their payment to the Bank of £1,900, the amount of their overdraft. Plaintiffs must now stand or fall by the deed, and by that deed they had no property in the debts. Mr. Stow had alleged that the assignors were indebted to the Bank which had agreed to advance £3,000 to Wright, and that Bank could sue Daly & Price under this arrangement, but such doctrine was too preposterous and dangerous to be entertained for a moment. (HANSON, C.J.Suppose it was shown in evidence that this was accepted as SUPREME COURT. { WRIGHT AND OTHERS V. } COMMON LAW. substituted performance, would not that make the deed good?) So far as this deed is concerned, it would be set on one side. (GWYNNE, J.-I told the jury that the giving of the deed and the execution of the bond supplied the consideration. Supposing nothing had been done under the deed, who would have been the parties to recover Mayhew's debt 1) Undoubtedly the assignors. (HANSON, C.J.-Then you say that the deed was conditional upon the performance of a certain act; that such act was never performed, and that consequently the deed became void.) That is our contention. On the question of registration, whatever doubt might exist as to an assignment of debts requiring registration, there could be none as to the necessity as regarded the books, as chattels; they were a necessary portion of the security, without which, in fact, the debts would not be available, and they were left in possession of the assignors. Registration of the deed, therefore, was clearly imperative. Before an action for money had and and received could lie, privity between the parties must be conclusively shown, or tortious or fraudulent conduct proved on the part of the defendant; parties must also be able to be placed in statu quo Reed v. Blandford, 2 Y. & J., 278 Cocks v. Masterman, 9 B. & C., 902. On the question of the necessity for consideration Lilly v. Fays, 5 A. & E., 548 Atkins v. Banwell, 3 East., 92 Thomas v. Thomas, 2 Q.B., 859 Clarke v. Shee & Johnson, Cowper, 197 Tugman v. Hopkins, 4 M. & G., 389. The debtors had paid the money to Bakewell in their own wrong, and were clearly liable to plaintiffs if they chose to compel them to pay again Holt v. Ely, 1 E. & B., 795 Steele v. Williams, 22 L.J., Ex., 225 Foster v. Green, 7 H. & N., 884 12 SUPREME COURT. TREE V. SAYERS. EQUITY. The cases of Stead v. Thornton and Munk v. Clarke, by which the plaintiffs' case must stand or fall, were materially different from this, inasmuch as in both the relation of principal and agent existed, and the strongest privity thereby established. A Court of Equity would not entertain a matter unless it could do complete justice in the case, and avoid piecemeal litigation. The Court here could not determine the right to the books, nor settle Mayhew's rights, nor decree that Bakewell's assignment should be cancelled, and it would not therefore entertain this as an equitable action Neate v. Harding, 6 H. & N. 349 Andrews v. Hawley, 26 L.J., Ex., 323 They were then stopped by HANSON, C.J., who said :-We are of opinion in this case that no privity whatever between the parties has been disclosed; that, as put by Mr. Justice GWYNNE, if the plaintiffs had filed a bill for account and discovery on the equity side it might have been demurred to; and as a higher position cannot be taken in a Common Law Court than could be taken in a Court of Equity, we order that the rule for a nonsuit be made absolute. GWYNNE, J., PRIMARY JUDGE.] [EQUITY. 1 SEPTEMBER, 1871. TREE V. SAYERS. Proceedings in a suit ordered to be stayed till payment by the plaintiff of the costs of a former suit to recover the same subject matter, although since such former suit the plaintiff had become insolvent and claimed now under assignment from his assignees in insolvency. BARLOW, for defendant, moved to stay proceedings in this suit till the costs of a former suit, instituted for the same object, had been |