Anwar et al v. Fairfield Greenwich Limited et al

Filing 1048

DECLARATION of Professor Jonathan Harris in Support re: #775 FIRST MOTION to Certify Class.. Document filed by AXA Private Management, Harel Insurance Company Ltd., Harel Insurance Company, Ltd., Pacific West Health Medical Center Inc. Employees Retirement Trust(On behalf of Itself), Pacific West Health Medical Center Inc. Employees Retirement Trust(on Behalf of All Others Similarly Situated), Pacific West Health Medical Center, Inc. Employee's Retirement Trust, Securities & Investment Company Bahrain, St. Stephen's School. (Attachments: #1 Exhibit 1 through 3, #2 Exhibit 4 Part 1, #3 Exhibit 4 Part 2, #4 Exhibit 5, #5 Exhibit 6, #6 Exhibit 7 and 8, #7 Exhibit 9 through 11, #8 Exhibit 12 through 14, #9 Exhibit 15 through 21, #10 Exhibit 22 and 23, #11 Exhibit 24, #12 Exhibit 25 through 27, #13 Exhibit 28 through 32, #14 Exhibit 33, #15 Exhibit 34, #16 Exhibit 35, #17 Exhibit 36, #18 Exhibit 37 through 39, #19 Exhibit 40, #20 Exhibit 41 Part 1, #21 Exhibit 41 Part 2, #22 Exhibit 42 through 51, #23 Exhibit 52 through 65, #24 Exhibit 66 through 70, #25 Exhibit 71 through 74, #26 Exhibit 75 through 77, #27 Exhibit 78 through 81, #28 Exhibit 82, #29 Exhibit 83 Part 1, #30 Exhibit 83 Part 2, #31 Exhibit 84 and 85, #32 Exhibit 86 Part 1, #33 Exhibit 86 Part 2, #34 Exhibit 87 through 90, #35 Exhibit 91 Part 1, #36 Exhibit 91 Part 2, #37 Exhibit 92 through 103, #38 Exhibit 104 through 106, #39 Exhibit 107 and 108, #40 Exhibit 109 through 113)(Barrett, David)

EXHIBIT 107

EXHIBIT 108

170 E.R. 948
170 E.R. 948 (1808) 1 Camp. 253 170 E.R. 948 (1808) 1 Camp. 253
(Cite as: 170 E.R. 948)

(1808) 1 Campbell 253
*949 *949 James Sadler v James Robins

1808
Same day.
(Assumpsit will not lie on a decree of a foreign
Court, whereby the defendant is ordered to pay a
certain sum of money to the plaintiff on a certain
day, first deducting thereout the defendant's costs to
be taxed by the proper officer; where the defendant's costs have not been taxed, either at his own request, or upon an ex parte proceeding at the instance of the plaintiff. Although an objection appear upon the record, and might be taken advantage
of by motion in arrest of judgment or writ of error,
yet if it be of such a nature, that the action clearly
cannot be maintained, the Judge at Nisi Prius will
nonsuit the plaintiff.)
[Considered, Beatty v. Beatty , [1924] 1 K. B. 807.]
Assumpsit on a decree of the high Court of Chancery in the island of Jamaica.—The declaration
stated, that on the 16th day of July, 1805, in a certain cause, wherein James Sadler and others were
complainants, and James Robins and others, executors of John Sadler deceased, were defendants,
it was by the said high Court of Chancery ordered,
adjudged, and decreed, that the said James Robins
and one R. Haywood, since deceased, should on or
before the first day of January then next ensuing
pay unto the said James Sadler, or his lawful attorney or attorneys in the said island, the sum of
£3670, 1s. 9¼d. current money [254] of the said island, with interest thereon from the 31st day of
December then last past, first deducting thereout
the full costs of the said defendants expended in the
said suit, the same to be taxed by George Howell,

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Esq. one of the masters of the said Court; and also
deducting thereout all and every further payment or
payments which the said James Sadler and R. Haywood or either of them might, on or before the said
1st day of January, 1806, shew to the satisfaction of
the said George Howell that they or either of them
had paid on account of their said testator's estate.
The declaration having then stated a liability and
promise in the words of the decree, and the amount
of the sum to be paid in sterling money with interest, went on to aver that the said James Robins
and R. Haywood did not nor did either of them on
or before the 1st day of January, 1806, or at any
subsequent time, cause the costs by the said defendants in the said cause in the said Court of Chancery
expended in that suit to be taxed by the said George
Howell, Esq., or by any other of the masters of the
said Court of Chancery, but as well the said James
Robins and R. Haywood, in the lifetime of the said
R. Haywood, as the said James Robins since the
death of the said R. Haywood, have altogether neglected and refused so to do, nor did the same James
Robins and R. Haywood, in the lifetime of the said
R. Haywood, on or before the said 1st day of January, 1806, shew to the satisfaction of the said
George Howell, or any other master of the said
Court, that they or either of them had paid on account of the said testator's estate any sum or sums
of money whatsoever. Breach, for non-payment of
the said sum of £3670, 1s. 9¼d. current money,
with interest due thereon, as mentioned in the decree.—Plea, the general issue.
[255] The Attorney-General having opened the
plaintiff's case,
Lord Ellenborough expressed himself of opinion
that the action was not maintainable; as it did not
appear what sum was actually due to the plaintiff
according to the terms of the decree.
The Attorney General contended that it lay upon
the defendant to reduce the sum below that awarded
to be paid on the 1st of January, 1806, and that if he

© 2011 Thomson Reuters.

170 E.R. 948
170 E.R. 948 (1808) 1 Camp. 253 170 E.R. 948 (1808) 1 Camp. 253
(Cite as: 170 E.R. 948)

took no steps for this purpose, the whole sum of
£3670, 1s. 9¼d. currency, became absolutely due
on that day. It was impossible for the plaintiff
either to tax the costs of the defendants in the suit,
or to shew what sums of money any of them had
paid for their testator; and it was plain, from the
words of the decree, that before any deduction was
to be made by the plaintiff, the acts of taxing costs
and proving payments were to be done by the opposite party.
Lord Ellenborough.—“Deducting thereout the full
costs of the said defendants,” is the same as “the
full costs of the said defendants first being deducted
thereont; and if the defendants did not appear to tax
their costs, the plaintiff might have proceeded ex
parte . At present, the sum due on the decree is
quite indefinite. The operations to ascertain it
should have taken place in the Court of Chancery in
Jamaica, and cannot be gone through here, at Nisi
Prius. Had the decree been perfected, 1 would have
given effect to it, as well as to a judgment at common law. *950 The one may [256] be the consideration for an assumpsit equally with the other. But
the law implies a promise to pay a definite, not an
indefinite sum.
The Attorney-General then urged strenuously, that
the objection was upon the record, and that if it was
well founded, judgment might be arrested.
Lord Ellenborough.—If there is evidently no consideration to raise a promise, so that the action cannot be supported, why should the defendant be put
to move in arrest of judgment? The plaintiff ought
not to have brought his action here, while the decree was in an incomplete state. The case we had at
the sittings after last term ( Buchanan v. Rucker,
ante , 63) shews with what facility these decrees
and judgments in the West India islands are obtained: and they ought to be examined with some
strictness before they are put in force in this country. In many other cases, when it is clear the action
will not lie; although the objection appears on the
record, and might be taken advantage of by motion
in arrest of judgment, or by writ of error, Judges are

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in the habit of directing a nonsuit.
The plaintiff was then called.
The Attorney-General in the following term obtained a rule to [257] shew cause why this nonsuit
should not be set aside; but cause being shewn, the
Judges were unanimously of opinion that it ought to
stand.
Lord Ellenborough.—There appears to be due to
the plaintiff upon the decree a sum of money— x .
Till the sum to be deducted is ascertained, it is impossible to say how much is really due. The
plaintiff ought to have taxed the costs ex parte .
There is no Court where this proceeding is not allowed. At present no one can predicate how much
the defendant is decreed to pay. The decree is therefore imperfect, and cannot be the foundation of an
assumpsit. As to the payments on account of the
testator's estate, none being proved, it might be presumed that there were none; but there had certainly
been costs expended in the suit, and until they are
deducted according to the terms of the decree, an
action cannot be maintained upon it.
Grose, J.—The plaintiff shews what sum is not due
to him, not what sum is due.
Le Blanc, J.—It is clear that the plaintiff is not entitled to the whole sum mentioned in the decree;
and it was competent to him to have had the costs
taxed at something, however small.
Bayley, J.—Of the same opinion.
Rule discharged. 1
[258] The Attorney-General and Le Blanc for the
plaintiff.
Garrow and Comyn for the defendant.
[Attornies, Shawe and Richardson.]

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170 E.R. 948
170 E.R. 948 (1808) 1 Camp. 253 170 E.R. 948 (1808) 1 Camp. 253
(Cite as: 170 E.R. 948)

1. Vide Buchanan v. Rucker, ante , 63, and the
cases there referred to.
END OF DOCUMENT

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