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![handle is hein.slavery/ssactsengr0723 and id is 1 raw text is: OGILVIE V. HERNE
vendor not being prepared to make a title, or a sufficient conveyance, interest should
not run from that time. But I never knew, that a deposit had any other effect ;
that it imposed a liability, or a responsibility upon the party, to whom that notice
was given ; throwing upon him any risk as to the principal. The principal remains
entirely at the risk of the party, making the deposit. He cannot by depositing the
money with his bankers throw the risk of their credit upon the other parties. They
are not called upon to express their opinion of that Bank, or to say any thing upon
the subject. There is no difference between that and a deposit at the Bank of
England, or a conversion of the money into Stock; as the one party has no more
right to make the other consent to have the fund laid out in Stock than in a private
Bank. Suppose a loss had happened, and the Defendant attempted to throw the
loss upon the Plaintiffs : could he do so I They would have said, he gave them
notice of a purpose and intention, not theirs, but his own. He puts it so. He does
not put it, as having consulted them upon the propriety of the Act. They would
have asked, what business they had with his intention : what obligation notice
of what he resolved to do could impose upon them 7 They would have said, he could
not impose upon them even the duty of dissuading him, and of stating the conse-
quences : all that is for him to judge of. The Defendant accordingly professed to
judge of it him-[563]-self. Not receiving an answer, he still proceeds to invest the
money in Stock. It would therefore have been absolutely impossible for him, if the
Stock had fallen, to throw the loss upon the Plaintiffs ; and the converse is a necessary
consequence ; that, an advantage having arisen, it is impossible for them to claim
the advantage. As the risk was his, the benefit also must be his.(1)
The Decree was made accordingly for a specific performance.
(1) Acland v. Cuming, 2 Madd. 28. The abstract in the margin is rather con-
fused. The purchaser proposed to the vendor to lay out the purchase-money in
Exchequer Bills; and the vendor was held entitled to the purchase-money with
4 per cent. interest.
OGILVIE V. HERNE. Rolls. May 4th, 1807.
A Decree, taken pro confesso, in the ordinary course, after appearance, not under
the Stat. 5 Geo. II. c. 25, can be impeached, as any other Decree, only directly,
by a Bill of Review, or a Bill to set it aside for fraud; not collaterally, by an
original Suit, seeking a Decree, inconsistent with it. Such a Bill therefore dis-
missed, with costs.
The Bill prayed a general account of all dealings and transactions between the
Plaintiff and the Defendants; who had been concerned for the Plaintiff as his
Solicitors ; and that the Defendants may be decreed to deliver up securities, obtained
by them, for an alleged balance of £1200.
The Defendants by their answer insisted upon three stated accounts, delivered
upon the 9th August 1793 ; the 5th of May 1794 ; and the 17th of July 1795.
In April 1799 the Master made his Report under an Order, obtained by the Defend-
ants, for taxing their Bill of costs. The Defendants afterwards delivered their
subsequent final account, which was approved and settled by the Plaintiffs who
executed a bond for the balance, in August 1800, and other securities In 1803
the Defendants filed a Bill to obtain the benefit of their securities ; to which the
Plaintiffs put in an appearance ; but, residing at Holyrood House in Scotland,
[564] never put in an answer : and upon the 14th of February 1806, a Decree was
pronounced at the Rolls, that the Bill be taken pro Confesso ; and directions were
given accordingly. (Herne v. Ogilvie, 11 Ves. 77.) The Defendants insisted upon
the Decree in the former suit, as a bar to this suit.
Mr. Hart and Mr. Heald, for the Plaintiff.-Sir Samuel Romilly, for the Defend-
ants, took the objection, that the Plaintiff could not be permitted to go into the
cause.
The Master of the Rolls [Sir W. Grant]. In this cause the Plaintiff cannot
possibly go into the merits. The Decree, obtained upon the Bill, taken pro Confesso,
is just the same as any other Decree of the Court. The consequence is, that it cannot
be impeached collaterally ; but must, like every other Decree, be impeached directly,
13 W S. JUN. 563.](ViewImageLocal?handle=hein.slavery/ssactsengr0723&div=1&collection=&method=preview&ext=.png&size=3)