X95/293b

Observations on X95/293a by S.G.Martin of 8 New Square, Lincolns Inn

9 Jan 1863

From: 1862 To: 1863

Observations on X95/293a by S.G.Martin of 8 New Square, Lincolns Inn: "I have read the opinion of Mr.Welch. With regard to filing a Bill in Equity, I think that a Bill may be filed by Mr.Sworder Senr against Messrs Vyse to obtain the benefit of the composition of 5/- in the £ received by them on the sum of £2500, for which Mr.Sworder Senr became surety. Paley V. Field 12 Vis 435. I fully agree in thinking that Mr.Sworder Senr is intitled to his benefit and that Messrs Vyse cannot apply in reduction on their secured debt. I think that a payment of a composition of so much in the £ on a debt is a payment on account of every £ and must be applied accordingly. Bardwell & Lydell 7 Bing 489; Raikes v. Todd 8A&E 846. The only doubt which I have felt is whether adequate relief may not be obtained at law; but I think that there is an independent jurisdiction in equity & therefore that it is not material to consider & whether there is a remedy at law. Upon the whole, I am of opinion that Mr.Sworder Senr should file a Bill to obtain the benefit of the dividends. 2. I think that before the Bill is filed Mr.Sworder Senr should tender to the plaintiffs the full amount of the balance which Mr.Sworder Senr admits to be due for principal & interest with a sufficient sum for the costs of the action. I presume that Messrs Vyse have received the full composition of 5/- in the £ on the £2500. It is important that no time should be lost in proceeding in equity".

item

Vyse, Henry,
Sworder, Thomas,
Martin, S.G.,
Vyse & Sons

S.G. Martin, Court of Equity, legal opinion