LE GRAND v. WHITEHEAD. Rolls. Feb. 24, [1826].

In a suit by a vendor for specific performance, the decree at the original hearing having directed merely a reference of title, the Court will not, at the hearing on further directions, enter into the consideration of any other objection which the answer had set up against the execution of the contract.

Particulars of sale, headed "Brick Earth and Land-Copyhold-held of the Manor of Fulham," described Lots I. and II. as containing a large quantity of superior marle or brick earth; adding, that specimens of the marle or brick earth might be seen on the estate, and that an agent would attend to show them.

The bill was filed for specific performance against the purchaser of the two lots. He by his answer admitted the contract, but denied that the vendors could make a good title; and he insisted, that, as he had been led, in consequence of the representations contained in the particulars, to purchase the premises for the purpose of digging marle and brick earth to manufacture bricks and tiles for sale, he ought not to be compelled to perform the contract, unless the vendors could shew, that the copyholders of the manor of Fulham were entitled by custom to dig marle and brick earth.

By the decree at the original hearing, it was referred to the Master to inquire, whether a good title could be made to the premises, and when it first appeared that a good title could be shewn. (Note: It did not appear, that the decree contained any declaration that the contract ought to be performed specifically.)

[310] On the proceedings before the Master, an objection was taken, that the vendors did not shew that the copyholders of the manor had a right, without the license of the lord, to dig marle and brick earth from the lands holden by them. The Master, however, being of opinion that the decree did not authorise him to enter into this question, certified in favour of the title, and that it appeared, before the filing of the bill, that a good title could be made. The report was confirmed. Afterwards the purchaser presented a petition, praying a reference to the Master. to inquire whether the copyholders within the manor of Fulham were entitled by the custom to dig marle and brick earth from the lands holden by them, and when it was first shewn that they possessed such a right. The petition had been ordered to come on at the same time with the hearing of the cause on further directions.

Mr. Sugden and Mr. Wakefield for the petition, and for the Defendant in the cause. The decree was taken in the common form, because it was supposed, that the question of title would have included the right of digging the brick earth. The Master, however, was of opinion, that he could not enter into the consideration of the latter subject; and that he was to report only on the title to the land. We could not except to the report, because we do not now contend that there is not a good title to the land; and that is all which the Master means to certify. But we say, that it is not enough that we have a title to the copyhold; we must have power to dig that brick earth and marle, which the particulars of sale represented as constituting the value of the premises, and which was an inducement to us to become a purchaser. We do not seek any thing inconsistent with the former decree; we desire merely a sup-[311]-plementary inquiry, without which it is obvious, on the record as it actually stands, that justice cannot be done between the parties. It is quite regular to do this on further directions. The petition is not in the nature of an exception to the report; it serves merely to direct the attention of the Court to an important part of the case, appearing on the bill and answer, which has not been yet disposed of.

Mr. Shadwell and Mr. Girdlestone, contra.

The Master of the Rolls [Lord Gifford]. The Defendant by his answer insisted, that he was not bound to perform the contract, unless it could be shewn that copyholders of this manor were entitled to dig marle and brick earth on the lands holden by them. Had the Court thought it necessary to inquire into the point, a direction to that effect would have been contained in the decree. Instead of doing so, the reference, which it orders, goes only to title: the Master has reported that a good title can be made, and that it could have been made before the filing of the bill; and no exception is taken to the report. The original decree either did or did not

authorise the Master to take into his consideration, in examining the question of title, the right of the copyholders to dig the marle and brick earth. If it did not, then the Court never intended that there should be any inquiry into that subject: if it did, the Defendant ought to have taken exceptions to the report. To grant the prayer of this petition would be to alter entirely the decree made at the original hearing; which it is not competent for the Court to do at the hearing on further directions.

Decree for specific performance with costs.

The petition dismissed with costs.

[312] In the Matter of JOHN HOUSTOUN. Feb. 28, 1826.

[Cf. In re Burbidge, [1902], 1 Ch. 426.]

A person, found a lunatic in Jamaica, where his property is situated, comes to England, accompanied by one of his committees: a commission of lunacy ought to issue against him here.

This was a petition for a commission in the nature of a writ de lunatico inquirendo, by an illegitimate sister of the supposed lunatic and her husband.

The insanity of the individual was not denied; but it was stated as an answer to the application, that a commission of lunacy had issued, and was now in force against him in Jamaica, where his property was situated, and where till lately he had resided; that three persons had been appointed his committees in that island; that he had been brought over to this country for the sake of his health; that Clarke, one of his committees, had accompanied him, in order to take care of his welfare and comfort; that, under these circumstances, a commission in England was not necessary for the protection of the lunatic and his property, and therefore ought not to be granted.

The Lord Chancellor [Eldon]. The commission now existing in Jamaica is no reason why a commission should not issue here. On the contrary, it is evidence of the absolute necessity that there should be somebody authorised to deal with the person and estate of this lunatic. While the lunatic is here, no Court will have any authority over him or his property, unless a commission is taken out.

[313] ANDERSON v. BAILEY. Feb. 28, March 4, 1826.

The assignee of a lease executes a bond to indemnify the original lessees against the covenants contained in the original lease; he afterwards quits the country; the house is left untenanted; and the original lessees are obliged to pay the rent reserved the assignee, having subsequently returned to England, makes a compromise with them for the sum then due in respect of his non-performance of the covenants, and shortly afterwards goes abroad: they demise the house to a person who continues in possession till the end of the term; Held, that this mode of dealing with the premises does not give the assignee any title in equity to relief against the legal effect of his bond Construction of a receipt.

By an indenture of lease, dated the 17th of July 1809, certain premises were demised to George Head, for a term of fifteen years from Lady Day immediately preceding, at a yearly rent of £157, 10s. Shortly after the death of Head, in 1811, his executors put up the house to auction; and, Anderson having become the purchaser at the price of £190, they, by an indenture dated the 21st of June 1811, assigned the leasehold interest to him, and at the same time took from him a bond in the sum of £5000, with a condition to be void, if he should duly pay the rent reserved by, and perform the covenants contained in, the original lease.

In October 1816, the person, in whose occupation, as tenant under Anderson, the premises had been, became insolvent and quitted them. In February 1817, the lessors brought an action against Head's executors for arrears of rent up to Christmas 1816, which the latter were ultimately compelled to pay with costs. The executors then made inquiries after Anderson, and were informed by the solicitors who had formerly acted for him, and by several other persons, that he had failed in business in the beginning of 1814, that he left this country without

making any arrangement with his creditors, and that he was supposed to have gone to America.

The premises continued unoccupied up to the middle of 1817, when the executors, who were in the mean time liable for the accruing rents, conceiving that it would be for the interest of all the parties concerned not to leave [314] the house untenanted, agreed to let it to one Sedgwick, for £110 a year, which was the best rent that could be obtained. During his occupancy, the executors paid to him from time to time the difference between that rent and the reserved rent of £150, 10s., and he satisfied the demands of the lessors.

In the end of 1819, Anderson having returned to England, the executors made a demand upon him for the monies, amounting in the whole to upwards of £270, which they had been obliged to pay in respect of the lease; but, after some conferences, agreed to accept of £50 as a compensation. The £50 was paid to them; and they signed a receipt for it in the following words: "Received, the 10th of January 1820, the within £50 as a compromise for a debt due to the estate of the late George Head."

In March 1821, Sedgwick became bankrupt. By an agreement in writing, dated the 18th of January 1821, the executors demised the premises at a yearly rent of £84 to Coulter, for a term of two years and three quarters, wanting five days, from Midsummer next ensuing. They, at the same time, entered into a bond to him, the condition of which was, that they should indemnify him against the rent reserved by the original lease, and that he should have quiet possession of the premises, against the original lessors and the persons who, for the time being, might be owners of the inheritance. Coulter remained in possession till the end of the term, paying his rent to, and taking receipts from, the executors. They also, in their own names, brought an action against him for the amount of alleged dilapidations, and compelled him to pay their demand.

During this time Anderson was chiefly abroad; where [315] one of the executors was in the habit of meeting him. Afterwards he returned to England, and the executors brought an action against him on the bond. The breaches of the condition, for which they claimed damages, were his non-performance, subsequent to his payment of £50 in 1820, of the covenants of the lease, in consequence of which they had been obliged to pay the reserved rent to the original lessors. A verdict being obtained, and judgment entered up against him, he filed a bill to restrain the action, and, on the answer of the Defendants, moved for an injunction.

Mr. Horne and Mr. Loraine, for the motion, insisted on two points. First, the receipt, in January 1820, was a discharge of the bond. The penalty of the bond was, by reason of prior breaches, the debt due at law; and that penalty was therefore extinguished in equity. Besides, the receipt was, upon a fair construction, an acknowledgment of a compromise of all demands; for there was no limitation of it to liabilities merely in respect of past breaches.

Secondly, the conduct of the executors had been such as would in equity relieve Anderson from the bond. Without authority to act as his agents, and without communication with him, they had, by letting the house first to Sedgwick and afterwards to Coulter, treated the lease as their own, and the assignment to Anderson as a nullity. They could never rely on the bond as an indemnity against rent accrued after they had themselves re-entered into possession. They, acting as owners, let the premises, gave receipts for the rent, and signed notices. How could they say, that they were entitled both to the possession of the premises, and to a performance of the [316] stipulation entered into by another, in consideration of the assignment of the lease to him, and of his undisturbed enjoyment of it.

Mr. Hart and Mr. Ching, contra. What these executors have done was done, not adversely to Anderson, but to protect the interest of all parties, and his among the rest. They were not bound to trust to the liability of a man in seemingly insolvent circumstances, who had quitted the country. In letting the house, which he had left unoccupied, for the best rent which could be gotten for it, they were diminishing his liability, as well as their own; and there is nothing in their conduct which will induce a court of equity to release him from his legal obligation. As to the receipt, it is merely an acknowledgment of compensation for what, at the date of it, was due in respect of previous breaches.

The Lord Chancellor [Eldon] was clearly of opinion, that the receipt afforded

no ground for the interposition of the Court. It must bear the same construction in equity as at law; and it was only a composition for the debt due at the date of it. His Lordship was further of opinion, that the executors were clearly entitled to recover for the breaches of covenant which had taken place between the date of the receipt and the date of the agreement with Coulter, and that there was no equity against this part of their demand. The consequence would be, that the costs of the action also must be paid forthwith.

[317] The only remaining point was, whether the agreement with Coulter, into which the executors entered without Anderson's consent, would discharge him from demands in respect of subsequent breaches; and upon this question his Lordship reserved his opinion.

March 3. The Lord Chancellor stated, that, after considering all the circumstances of the case, and especially the agreement with Coulter, his opinion was, that there was no ground for the interference of the Court; and he therefore refused the injunction.

HUGHES v. DUMBELL. Feb., March, April, [1826].

A bill having been filed by a number of persons, on behalf of themselves and other creditors of a banking-house, an order is obtained by A., one of the Plaintiffs, to amend the bill, by striking out the names of the co-plaintiffs; but no amendment is actually made; many years afterwards, the executors of A., not knowing that the record had not been amended, file a bill of revivor, as if A. had been the sole Plaintiff; and, an order of revivor being obtained, move in the revived cause for a receiver such a motion is irregular, notwithstanding that the order of revivor has not been discharged. Query. Where an order is obtained, giving one of several Plaintiffs liberty to amend, by striking out the names of the coplaintiffs, and, before the order is entered and the amendments made, proceedings are taken in the cause, whether such proceedings are not a waver of the order? Semble, When proceedings have taken place under such circumstances, an order to enter the order to amend nunc pro tunc ought not to be made (if made at all) without making an arrangement with respect to what has been done in the cause in the interval.

In May 1798, John Hughes and fifty-two other persons, creditors of the Stockport Bank, filed a bill on behalf of themselves and the other creditors of the Bank, against Lyon and several other Defendants, praying, that the trusts of a certain indenture might be carried into execution. John Dumbell was subsequently made a Defendant by amendment.

By an order made in the suit on the 19th of December 1799, James Mangles was appointed receiver, to [318] collect the outstanding property, both joint and separate, of the partners of the late Stockport Bank, except the separate property of John Dumbell and Jonathan Dumbell. Proceedings were at the same time going on under a commission of bankrupt, which had issued against John Dumbell. On the 28th of March 1803, Mangles presented two petitions in the cause. the 19th of November 1803, an order was made upon those petitions by the Lord Chancellor, which was entitled, both in the bankruptcy, and in the cause of " Hughes and Others v. Lyon and Others."

On

In November 1804, John Dumbell presented a petition, the prayer of which went to vary the former order. On that petition the Lord Chancellor, on the 17th of December 1804, made six separate orders entitled in the cause as well as in the bankruptcy.

In the mean time, on the 23d of July 1803, Hughes had moved for liberty to amend the bill by striking out the names of the persons who were co-plaintiffs with him; in consequence of which it had been ordered, upon an affidavit of service of the notice of motion on those co-plaintiffs and the Defendants, that Hughes, upon giving security to answer the costs incurred up to that time, in case the Court should award any such costs to be paid, should be at liberty to amend his bill by striking out the names of all the other Plaintiffs, and otherwise as he should be advised, without costs, amending the office copies of the Defendants. This order was drawn up, but was not entered in due time: and, on the 20th of January

1806, an order was obtained that it should be entered nunc pro tunc. The latter order was entitled "between John Hughes [319] and Others, Plaintiffs, and Thomas Lyon and Others, Defendants." The order of the 23d of July 1803 was accordingly entered.

Hughes died in 1824. In June 1825, his executors, Hughes and Mangles, filed a bill, which was partly a bill of revivor, and partly a bill of supplement. Among much other matter, it stated the proceedings out of which the suit arose, the interests of the different parties, the order to amend, and the orders of the 17th of December 1804. It further stated, that, since the date of the latter orders, no proceedings had been taken in the suit; that the bill and answers filed in the cause of Hughes and Others v. Lyon and Others, had been taken off the file; and that the Plaintiffs had been unable to discover or trace them. The prayer was, that the suit of "Hughes and Others v. Lyon and Others" might be revived, and that the Plaintiffs might have the benefit of such of the six orders as they might be advised to avail themselves of

On the 3d of December an order of revivor, entitled only in the suit of revivor, was obtained as of course, against all the Defendants, except two who had not appeared.

The order of revivor stated the filing of the original bill, and the dates of the several orders made in the cause. Among the rest, it referred to the orders of the 23d of July 1803, and 17th of December 1804; but it made no mention of the order of the 20th of January 1806, nor did it contain any allegation that the bill had been amended, pursuant to the liberty given.

The material part of the order was "it was therefore prayed that the said suit and proceedings might stand [320] revived, &c., which is ordered accordingly": the only suit mentioned in the proceeding part being the suit instituted by Hughes and numerous other co-plaintiffs.

Feb. 13. The Plaintiffs in the revivied suit moved against John Dumbell for a receiver of certain lands. When this motion was made a doubt arose concerning the actual state of the record; and the Lord Chancellor ordered a search to be instituted for the original pleadings. At length they were found among the papers of a deceased clerk in Court; and it appeared that the bill had not been amended.

The motion being renewed, Mr. Agar, Mr. Heald, Mr. Montagu, and Mr. Romilly took a preliminary objection. They contended, that, the bill never having been amended, the only suit in Court was the suit of the fifty-three co-plaintiffs; that the executors of one of these co-plaintiffs had no right to revive, without bringing the other co-plaintiffs before the Court; that the order to revive could give the Plaintiffs no right against any one, unless it was in itself regular and valid; that it was, on the very face of it, irregular; and that the motion must therefore be dismissed, as being made in a cause which did not exist, and by persons who had no right to come before the Court in the manner in which they had chosen to do.

Mr. Hart, Mr. Rose, and Mr. Parry, contra. This is a mere technical objection, which, after so long a lapse of time, and under circumstances so peculiar, will not be allowed to exclude the Plaintiffs from availing themselves of the merits on which they wish to stand. The objection ought to have been taken either by demurrer to the bill of revivor, or by a motion to discharge [321] the order of revivor. While that order of revivor stands, it gives the Plaintiffs a right to make the present application.

March 15. The Lord Chancellor [Eldon]. It now, in 1826, appears, that the order giving liberty to amend, made in 1803, has never been followed by any amendment. Even so early as December 1804, there seems to have been no great inclination to act upon it; for, in that month, six orders are made both in the bankruptcy and in the cause; and the cause in which they are made, is a cause in which there are fifty-three co-plaintiffs. Supposing that Hughes had attempted immediately afterwards to come before the Court as sole Plaintiff; it would have been a question, even then, whether his appearing in the proceedings taken in December 1804, and discussing the right of the petitioners to what was demanded by a petition entitled in the bankruptcy and in the cause of the fifty-three Plaintiffs, would not of itself have amounted to a waiver of the order to amend.

However that might have been, it was important to know whether in fact the bill had been amended; but it was stated that this could not be ascertained.