actor in the facts, although such an incorrect mode of stating the case may affect the costs. 6. Where the Court below has by decree given substantial relief against a defendant, with costs against him personally, it is competent to the Court of appeal affirming the decree as to the relief, to vary it as to the costs; but to render this course correct, there ought to be a judicial dissent as to the costs, strong, clear, and undoubting.' 7. At the hearing an injunction may be granted although not prayed for by the bill.2 THIS was an appeal from the decision of Sir JAMES WIGRAM, reported in the eighth volume of Mr. Hare's Reports, p. 222. The facts appear sufficiently from that report and from the judgments. * 661 *The Solicitor-General, Mr. Bethell, and Mr. T. H. Terrell supported the appeal. Sir F. Kelly, Mr. Lloyd, and Mr. Shapter were for the respondents. Upon the question of champerty were cited Strachan v. Brandon, (a) Wood v. Downes, (b) Harrington v. Long, (c) Hunter v. Daniel, (d) and cases there cited; Hartley v. Russell, (e) Williams v. Protheroe, (g) Hawkins's Pleas of the Crown, 456, Stanley v. Jones, (h) Cholmondely v. Clinton. (i) As to affording relief at the instance of particeps criminis, Cecil v. Butcher, (k) Brackenbury v. Brackenbury, (1) Osborne v. Williams, (m) Lord St. John v. Lady St. John, (n) Benyon v. Nettleyard. (0) Upon the frame of the suit, Ferraby v. Hobson, (p) Wilde v. Gibson, (q) Archbold v. Commissioners of Charitable Bequests, (r) Bellamy v. Sabine. (8) THE LORD JUSTICE KNIGHT BRUCE. In these causes the original (a) 1 Eden, 303. (h) 7 Bing. 369. (i) 4 Bli. 4 & 90. (k) 2 Jac. & W. 565. (1) Ib. 391. (m) 18 Ves. 379. 12 Dan. Ch. Pr. (4th Am. ed.) 1466; Power v. Reeves, 10 H. L. Cas. 645. 2 1 Dan. Ch. Pr. (4th Am. ed.) 388; 2 ib. 1614, 1682. plaintiff, Lieutenant-General Sir Thomas Reynell, sought, and after his death, Lady Elizabeth Reynell, as his devisee and executrix, obtained from a learned Judge of this Court, not now on the bench, relief against two instruments as affected in equity by unfair or improper dealing alleged to have taken place on the part of Captain Sprye, who, with Mrs. Sprye his wife, claimed the benefit of those instruments, their alleged rights* 662 under which they by their suit sought, but in the opinion of the Vice-Chancellor, who dismissed their bill, were not entitled, to enforce. [After describing generally the nature of the impeached documents, which are set out in Mr. Hare's report, his Lordship continued:] The case brought before us upon a petition of appeal or rehearing, presented by Captain and Mrs. Sprye in each of the causes, occupied here, as it had done before Sir JAMES WIGRAM, a length of time fully commensurate to its bulky materials and to the demands of justice. The present is one of those instances of cross litigation, in which a dismissal of each of the contending parties is incapable of terminating the dispute between them, for that course taken here would leave Captain Sprye at liberty to sue Lady Elizabeth Reynell (whether without or with a reasonable chance of success) for the purpose of recovering against the assets of Sir Thomas Reynell pecuniary damages (substantial or nominal) upon the agreement of 1844, and a covenant contained in the conveyance of 1843. It is therefore necessary, not only with respect to the costs, but also otherwise, to determine whether relief ought to be given upon the bill filed by Sir Thomas Reynell. Whatever may become of the suit of Sir Thomas Reynell, I apprehend that if we shall dismiss or affirm the dismissal of the bills filed by Captain and Mrs. Sprye, that will amount to an adjudication that the two instruments in question (of which, if either confers any title at law, it is only a title to sue for pecuniary damages, inasmuch as Mr. Henry Reynell's interest in his real property was equitable only) confer in equity, either no title at all, or nothing beyond a title to proceed against Sir Thomas Reynell's assets for the recovery of pecuniary damages; * while it is obvious that the success of Captain and Mrs. * 663 [ 513 ] VOL. I. 33 Sprye in their suit must be destructive of Sir Thomas Reynell's suit, which, on the other hand, cannot succeed without causing the total failure of the other. But there would be nothing absurd or anomalous in a dismissal of each of the bills; and as in most instances, so especially in this, the attack on each side requires a more forcible and clear case than the defence. I have but another word in the nature of a preliminary observation to say, which is this: upon the assumption of the decree being right, so far as it goes, it might well, I think, have restrained Captain Sprye in terms from suing Lady Elizabeth Reynell at law upon the two instruments respectively, an addition which I suppose that the Vice-Chancellor, if asked to make, would have made; for though an injunction of that kind is not, I believe, prayed on the record, the omission was, I apprehend, at the hearing of the causes immaterial, whatever the rule may be as to interlocutory applications. The decree would, perhaps, have also contained provisions concerning some other documents in evidence if this had been asked at the bar. And now as to the merits, my remarks on which may be prefaced usefully, by reading the two impeached instruments. [His Lordship read the documents, which were a deed of July 15, 1843, and a letter of May 14, 1844, both of which are set out in the report above referred to.] As to the origin of these documents, it seems that in or before April of the year 1843, Captain Sprye, perhaps in the course of some genealogical inquiries, perhaps otherwise, did without any *664 request from Sir Thomas * Reynell or employment on his part, discover, or hear of the fact, that Mr. Henry Reynell had left a will, conferring reversionary interests in real property, on Sir Thomas Reynell and his elder brother, Sir Richard Reynell, which was proved, and deposited at Doctors' Commons. It must also be taken that Captain Sprye, in a manner open to some remark, did, between the end of March, 1843, and the end of June, 1843, communicate the fact of the existence of the will to Sir Thomas Reynell, and inform him that he was, or might possibly be, either under it if valid, or by heirship, interested importantly in the landed property of Mr. Henry Reynell, property of considerable value. It may moreover fairly be considered as true, that Sir Thomas Reynell, though he had been acquainted slightly at least with that gentleman, and aware of a relationship between them, had, previously to receiving this information from Captain Sprye, neither cared nor thought whether Mr. Henry Reynell had left will or property. Now, that possibly but for Captain Sprye, the life of Sir Thomas Reynell might have ended without any attention upon his part having been given to any such matter, that possibly but for Captain Sprye it might at this moment have been unknown. to Lady Elizabeth Reynell, that Mr. Henry Reynell left either will or property; and that but for Captain Sprye, possibly Mr. Williams Reynell might now have been receiving and enjoying the rents of the estates a possession which not very improbably might have continued until his death-there is, I think, no gainsaying. And inasmuch as the estates in question may be taken to be worth not less than 25,000l. clear after discharging the burdens upon them, as, at the time when the communication was made by Captain Sprye to Sir Thomas Reynell, the true and real title to the estates was, for all purposes material in the present -- case, thus: *that Mrs. Williams Reynell was tenant for *665 life, subject to impeachment of waste, with remainder or reversion (immediately in substance) to Sir Thomas Reynell in fee as some timber had been cut irregularly as some colour, had been given for an unfounded claim on the part of Mr. Williams Reynell, to an interest for his own life—and as there was at least probable ground for questioning the propriety of the conduct of Mr. and Mrs. Williams Reynell, and Mr. Monro, and Mr. Thomas Williams, the trustees, or supposed trustees under the will, or of one or more of them, in having omitted to inform Sir Thomas Reynell of the will, and in having dealt somewhat singularly with the paper under which that unfounded claim arose, it cannot, I think, be denied, that Captain Sprye, by merely telling Sir Thomas Reynell of the existence and nature of the will and of its place of deposit, did or might have done a valuable act of service to him. This service Captain Sprye might have rendered in several ways; as, for instance, he might have said to Sir Thomas Reynell, "I am glad to be able to inform you of a circumstance that you are possibly not aware of-your kinsman Mr. Henry Reynell, of Leatherhead, left a will, under which some important interests in landed property appear to be given reversionarily to you and to Sir Richard Reynell - had you not better look after the matter? * 666 acted. the will is at Doctors' Commons." Now if Captain Sprye, on becoming aware of the will and its place of deposit (a notorious and sufficiently accessible place), had taken this course without any bargain or other motive than the wish to do as he would be done by, or to perform an act of mere good nature or courtesy to a respectable acquaintance-(I say nothing of their common profession, or of Sir Thomas Reynell's age, services, and station) -Captain Sprye would have acted as, I hope, three out of four men in this country similarly circumstanced would have * Or it might have been thus: I have more than once, as probably many others have, received letters proposing to furnish some unexplained information alleged to be of an advantageous kind, in exchange for a preliminary coin, I think a sovereign, upon the safe transmission of which, but not before, the mystery was to be unfolded. If Captain Sprye, taking such a course, had, before giving any information, required and received a promise from Sir Thomas Reynell that he would, upon learning something beneficial to him from the Captain, give the Captain half, or a quarter, or an eighth, of the value of what the infor mation should enable or lead Sir Thomas Reynell to obtain, it may be that a jury would in an action of assumpsit, upon the promise, have given the Captain pecuniary damages, and that the verdict would not have been disturbed; but I do not think it likely that a Court of Equity would have assisted such a transaction beyond not refusing to recognize as an effectual judgment for damages, or damages and costs, a judgment at law obtained fairly in such an action. Again: Captain Sprye might have withheld the information from Sir Thomas Reynell, until the latter had promised him a fair or sufficient compensation or reward in general terms for the communication. This certainly would have been a contract merely of legal cognizance, but if a judgment at law for damages, or damages and costs, had been obtained by Captain Sprye upon it fairly, a Court of Equity would have recognized that as an effectual judgment for its proper legal purpose. I have used the expression "valuable act of service;" the worth and extent, however, of that act, of that service, should of course be neither over-rated nor under-rated. The title and claim of Mrs. Williams Reynell and her husband were merely and solely under the will. It was of the utmost importance to their interest * 667 that the will should be held valid and effectual; nor has * |