a question of contribution, where different estates, subject to a general charge, are given to different persons; if the rule applies, it must also be the same where different portions of the same estate are given; there can be no difference between the cases the matter to be decided is, in what proportion they shall contribute to the general burthen. In the case of tenant for life, with a remainder in fee, the court appears to have settled the point, that each shall contribute according to the value of the different estates. It was a rule early adopted as the measure of that value, that the estate for life should be valued as one third, the inheritance at two thirds, although it has been since treated as obsolete. That rule was only a medium to obtain justice. It was applied as such in Brent v. Best, 1 Vern. 69, where, upon a bill to redeem, the mortgagee having devised the land to his wife for life, remainder to B. in fee, it was decreed that one third of the mortgage money should be paid to the wife, the other two thirds to the remainder-man; so where there was a devise by mortgagor of the lands in mortgage, the tenant for life was decreed to pay one third, the remainderman two thirds, Cornish v. Mew, 1 Chanc. Ca. 271. But this rule did not produce justice, and therefore, where the tenant for life was dead before the bill filed, the Court decreed that his representative should contribute only for the time during which he enjoyed the estate, Clyat v. Batteson, 1 Vern. 404. The Court did not consider the rule as imperative, but only to be applied where it produced justice for this purpose, as what the tenant for life has is only the rent and profits, and the remainder-man has the estate, the Court modified the rule to this, that the [137] tenant for life should pay the interest, and the debt be a charge on the estate, following the idea, that whoever took a portion of the estate should bear a share of the burthen. This rule in general is a just rule, as it apportions the burthen fairly between the parties, where there is a possession; but where the interest of the incumbrance exceeds the produce of the estate, there the rule ceases to be just, for it would be imposing a burthen instead of giving a bounty. The principle of contributing according to the actual possession only, has been applied in the case of renewing leases. In Nightingale v. Lawson (ante, vol. 1. p. 440), the point was much insisted upon before the Master of the Rolls, that the estate in possession and the reversion being one estate, she should be charged as a tenant in possession: her estate was decreed only to bear its proportion in regard of the time of her enjoyment. If the rule is a positive rule, it must prevail throughout, even if Lady Hereford had received but 10s. a-year. Suppose 10s. a-year only had descended upon her, and the jointresses had lived twenty years, and she herself should live long enough to pay the arrear only, her whole estate would be taken from her, and nothing from the remainder-man, who would be liable to the principal only. But the rule I have laid down, of charging in proportion only, has been applied. It was applied in principle in Clyat v. Batteson, and again in Heningham v. Heningham, 2 Vern. 355, to this very case of an estate in possession and an estate in remainder for in that case two estates, the one in Norfolk, the other in Suffolk, being subject to raise a portion out of a reversionary term, to commence after the death of different tenants for life, on the different estates, the life on the Suffolk estate fell, and the daughter bringing her bill against the termor, obtained a decree that the term should be sold to raise her portion. The termor paid the portion, and the other life dropping, he brought his bill against the defendant, upon whom the Norfolk estate had descended (who was the daughter), for contribution, and decreed that the Norfolk estate should contribute in proportion, but that the Suffolk estate should be valued as an estate in possession, the Norfolk estate as an estate in reversion only. In Thynn v. Duvall, 2 Vern. 117, the Court, on a bill to redeem or foreclose, ordered the defendant, tenant for life of the equity of redemption, to file a bill to have a sale, the mortgage debt paid, and the surplus distributed among the tenants for life and remainder-men, [138] according to their proportions. If the rule be adopted which is proposed by the plaintiffs in this case, Lady Hereford's life estate will be charged greatly beyond her proportion as to the value; and no intention appearing on the part of the testator that she should so largely contribute, the rule should not be so applied. It is just that the rents of the estates which she took in possession should be so applied, but those of the estates in reversion ought only to be applied to the future interest, and to keep down the interest of the arrear considered as principal. In Guillam v. Holland, 11 Nov. 1738 (mentioned in 2 Atk. 343, on another point), as it appears in a manuscript note of the case, in the late Mr. Brown's copy of Equity Cases abridged, the husband of a feme, tenant in fee of an estate devised subject to debts, having received the rents

;

without. paying the debts, or keeping down the interest during the life of the wife, upon her death the heir filed a bill against the surviving husband, to have the rents received applied in payment of the debts. Lord Hardwicke held that the accumulation should fall upon the estate; and that the husband, during the coverture, had the same right the feme would have had if sole, and might retain the rents received during her life; and although Brompton v. Alkis, 2 Vern. 566, was decided otherwise, yet that note is query'd by Mr. Vernon; and Lord Hardwicke certainly meant to negative that authority, by his determination of Guillam v. Holland.

Lord Chancellor [Thurlow] (without hearing the counsel for the plaintiffs) said, the decree appeared to him to be right. The counsel have argued the case different ways; the one upon the intention of the testator, the other on the rule of equity to cause a contribution between the takers of the same lands. With respect to the latter ground, no rule has ever been laid down that two estates in the same land shall contribute in proportion to their respective values, in such a case as this: if there had, the Court would have marked it by valuing the estate for life, then valuing the reversion, and decreeing each to bear its proportion; but this has never been done but where the estate has ceased to have continuance by some act of the donor's; there the charge has rested on the reversion. A tenant for life without impeachment of waste cannot sell the timber growing on the estate, nor take the produce of mines unopened, both of which are the property of the person entitled to the inheritance; yet if the estate is sold to pay debts, the Court gives a life estate in the interest of the [139] surplus money to the tenant for life, although the sum is increased by that which belonged to the inheritance, and would have yielded the tenant for life no profit; but, according to the argument, all that increased surplus ought to go to the remainder-man in fee; so in cases where there have been contingencies which might increase the value of the tenant for life's estate, there is no instance where the Court has calculated the value of such contingency, in order to burthen the estate of the tenant for life, further than keeping down the interest of a charge out of the annual rents and profits. It has only compelled the application of the rents year by year, to keep down the interest of the charge; and if this rule were departed from, it would be impossible to draw the line what proportion each part of the estate should pay. (See Revel v. Watkinson, 1 Ves. 93, &c.) Then as a question of intention, I agree it is so; the testator considered it as a fund to be divided, and that each tenant for life should leave the estate to his successor in as good condition as he found it; his intention was, therefore, to give it, subject to all reprizes; all reprizes must, therefore, be borne by each tenant for life. The counsel have put cases which might not occur to the testator. Cases often happen, where the rule must deprive the donee of every thing. The argument supposes the testator meant to give each a certain benefit; but he did not give a certainty, he gave no certain term. Arguing in that manner is arguing wide of his intention. A man who gives a contingent estate, as a life estate in a reversion must be, gives that which may or may not be productive: yet she might have made it certain by selling her interest; but as every contingency may or may not be productive, all she can take is the surplus after such charges as affect the contingency she is to take. The intention of the testator, therefore, will be fully satisfied by applying the common rule of the Court, that the taker of two funds, one productive, the other unproductive, must keep down the interest of the charges upon them and pay off the accrued interest out of the rents and profits of the reversion, before she can take any benefit of the devise, and cannot throw the charge on the reversion. By this decree she can never be injured, as, if the estate produces nothing, she never can be charged with any thing. The decree therefore must be affirmed. (Reg. Lib. 1786, B. fol. 115.)

(1) S. P. Revel v. Watkinson, 1 Vesey, 93, Supplement, 56. It is singular that this case in Vesey was not referred to by any of the counsel in the principal case, at either of the hearings.-EX INFORMATIONE. S. P. also Gwillim v. Holland, 14th October 1741.-Lord Redesdale's notes. [Reg. Lib. 1740, A. fol. 631 b.] In that case, the tenant for life (who was tenant by the curtesy) was ordered to keep down the interest of the mortgages and incumbrances which had accrued since the death of his wife, and should accrue during his life. Reg. Lib. S. P. also Monksfield v. Bunbury, 3 March 1759, per Lord Henley, Keeper. [Reg. Lib. 1758, B. fol. 476.] The widow and executrix was there, out of what should be found coming on the account of rents and profits received by her, to keep down the interest of the incumbrances

on the real estate, to the extent of what she had, or should receive, out of the rents and profits thereof.-Lord Redesdale's notes and Reg. Lib.

[140] ROBERTSON against ST. JOHN. Lincoln's Inn Hall, 16 Dec.

Promise to renew a lease, in consequence of money already laid out, is nudum pactum, and not be specifically performed; and money laid out afterwards will not vary it. [On this ground a demurrer allowed.]

Bill by the assignees of Merriman, a bankrupt, against the defendant, for a specific performance of an agreement.

The defendant demurred, (1) and the case appeared to be this:

Lord Bolingbroke, tenant for life, with remainder to the defendant, had granted a lease for thirty-one years, and had covenanted that when the defendant, his son, should come of age, he should confirm the lease.

66

Soon after the defendant came of age, Merriman wrote to him, stating the agreement with his father, and that, in consequence of it, he had laid out considerable sums. To this letter the defendant wrote the following answer: The agreement certainly "does not bind me; but the money you have laid out certainly entitles you to a renewal "of the lease from me, which I shall be happy to give you, on this consideration." The bill further stated the bankruptcy of Merriman, and that he and the assignees (the plaintiffs) had laid out further sums on the premises.

In support of the demurrer it was argued, that this was nudum pactum.

For the plaintiffs it was contended, that they and the bankrupt having laid out money in consequence of the agreement, it would be a fraud not to carry it into

execution.

Lord Chancellor [Thurlow] said,-The intention of laying out further sums of money not being mentioned in the letter, the promise was nudum pactum, which equity would not perform in specie, although had he stated that intention, and the promise had been founded upon it, the plaintiff should have had a specific performance. The circumstance of laying out money afterwards, as it was voluntary, could not vary the nature of the case. Demurrer allowed. (Reg. Lib. 1786, B. fol. 74.)

(1) The demurrer was "to so much of the bill as prayed that the defendant might be compelled to a specific performance of the agreement mentioned in the plaintiff's bill, or that prayed any relief touching the matters therein complained of; the said * defendant insisting that there was not any thing in the said bill contained (supposing, but not admitting, the several allegations thereof to be true) to entitle the plaintiff "in a court of equity to the relief prayed, or to any other relief." Reg. Lib.

[141] PENGREE against JONAS. [1786.]

Judgment in error for want of an original writ (there having been a petition, and order at the Rolls for one to issue, but the order not served), the defendants ordered to consent to set it aside: but a commitment for contempt in entering it up refused. -Lincoln's Inn Hall, 1st Seal before Hilary, 15 Jan.

The plaintiffs commenced an action against the defendants in the Common Pleas ; the capias was returnable on the morrow of All Souls, and in Michaelmas 1785 they declared, and in Easter 1786 signed, an interlocutory judgment, sued out a writ of enquiry, and obtained final judgment in Trinity term, for £863, 10s. damages. The defendants brought a writ of error in B. R. the 29th of June last. No farther proceedings were had; and the plaintiffs not having sued out any original writ to warrant the judgment, and the time being expired for applying for it, the plaintiffs, on the 10th of November last, preferred their petition to the Master of the Rolls, praying that the Cursitor of the city of London (where the venue was laid) might be ordered to issue an original writ in the cause, returnable in the Common Pleas.

On the 29th of November the petition came on to be heard at the Rolls, when his Honor ordered the writ to issue, and that, in the mean time, all proceedings on the writ of error should be stayed. (Reg. Lib. 1786, B. fol. 33 b.)

At the hearing of the petition, Mr. Worthington, the defendant's solicitor, was

in Court. After the hearing of the petition, but before the order made in consequence of it was served upon him, Worthington signed judgment in the writ of error. (Note: If the report is accurate, Lord Thurlow seems to have made much too light of what certainly was a contempt of the Court, even under the admission of the party's counsel : and Lord Eldon, C., rescued the authority of the Court from such attempts in future in Osborne v. Tennant, 14 Ves. 136; where his Lordship held a party to have committed a contempt and breach of an injunction; he being present in Court during the motion, though absent when the order was pronounced.)

Mr. Mansfield (for the plaintiffs) now moved, that the judgment signed upon the writ of error, and the subsequent proceedings might be set aside, with costs, and also with the costs of this application to be paid by Worthington, and that he might stand committed for signing the judgment in contempt of the order of the Court.

He stated the proceedings, and particularly with respect to the contempt, that the defendant's solicitor attended the hearing of the petition, and heard the order made upon it, and had also seen the minute of it in the minute book; so that, although the order was not drawn up or served, he was guilty of a contempt in [142] proceeding after the order that further proceedings should be stayed; and for this he cited Skip v. Harwood, 3 Atk. 564, where Harwood, having been present in Court when the decree was pronounced, was committed for a contempt of it, although the decree was not drawn up [Powell v. Tollett], also 3 Atk. 567, where Lord Hardwicke declared, that when a defendant or his attorney have been present on an order for an injunction, and have proceeded at law before it has been sealed, the Court has considered it as a contempt, and committed the person for it. (S. P. also per Lord Eldon, C., Osborne v. Tennant, 14 Ves. 136.) With respect to setting aside the judgment, that must be done here; for there being no irregularity in the judgment itself, an application to the court of law to set it aside would be fruitless.

Mr. Hollist, for the defendants and Worthington. The original writ being sued out after the writ of error brought, is a fraud upon government, as, if the plaintiff's can, at any time, come by petition to the Rolls, and have an original writ allowed, the writ will never be sued in the first instance, and government will be deprived of the stamp duties. In the present case, the petition did not pray that the proceedings might be stayed, and it was not understood to be part of the order, so that he was only proceeding in the ordinary course of justice. If the judgment ought not to stand, Mr. Worthington has only been mistaken; he did not intend any contempt of the Court, and is willing to rectify the mistake by any means in his power.

Lord Chancellor [Thurlow]. If it was a new question whether an original writ should be granted to support a judgment, I think the argument would apply; but it is too late to say now that such a writ shall not be granted. In this case, after the order was made, there was a neglect in drawing up and serving it. I do not see how I can make an order to set aside a judgment of the Court of King's Bench; but as the judgment ought to be set aside, they may consent to a motion to be made in the King's Bench for that purpose.

With respect to the contempt, I do not much like the case from Atkyns. (Note: If this sentence be correct, the Profession should have had a communication of his Lordship's reasons. Lord Hardwicke and Lord Eldon's decisions seem much preferable).

Órder, that the defendant should consent to a motion to set aside the judgment. (No entry on this occasion.)

[143] HILARY TERM, 27 GEO. 3, 1787. NEWMAN against WALLIS and Another. [1787.] [See Hardman v. Ellames, 1834, 2 My. & K. 740.]

Plea that the plaintiff is not heir [was held in this case, and in Gun v. Prior, 2 Dick. 657; 1 Cox, 197; and Forr. Exch. Rep. 88, note], a bad plea; [but Lord Thurlow afterwards altered his opinion]. (See note at end of case.)

The bill set forth, that Caleb Cotesworth, M.D., seised of freehold and copyhold estates, by will dated the 30th of November 1724, devised the same to Susannah his wife, her

heirs and assigns for ever, and died, without revoking his said will, the 16th June 1741; Susannah the wife survived him about eleven hours, and died intestate. The plaintiff claimed the estates as heir at law of Susannah, stating that at the time of her decease John Newman, his father, was her heir, who died in 1758, leaving William the plaintiff's elder brother, his heir, who died without issue and intestate in 1781, by which the title devolved upon him, the plaintiff; and in order to shew that his father was heir at law to Susannah Cotesworth, he set forth the pedigree thus ;that he was son and heir at law of William Newman, who was eldest son of Thomas Newman, who was the eldest son of Henry Newman, the brother of John Newman, who was father of another Henry Newman, who was the father of Susannah Cotesworth ; and the plaintiff in his bill charged that the defendants claimed as purchasers, for a valuable consideration, of Sarah James, whom they pretend to be the heir at law of Susannah Cotesworth, whom the bill charged to be a supposititious child, imposed as the daughter of William Malthus, son of Thomas Malthus, and Susannah his wife, which Susannah was the only daughter and heir of one Dormer Newman, the uncle of Susannah Cotesworth, viz. her father's brother, when in fact Sarah James was not the daughter of William Malthus, nor any ways the heir at law of, or related to Susannah Cotesworth. And [144] the bill went into a detail of the means by which Sarah James was imposed and substituted by a Francis Carter and his wife as the child of William Malthus. To this bill the defendants pleaded, "that Sarah James was the heir at law of Susannah Cotesworth, without this that plaintiff ever was or is the heir at law to the said Susannah Cotesworth, in manner and form as by said bill "alleged, all which, &c., defendants do aver and plead in bar of the said bill, &c."

The plea being set down to be argued, came on at Lincoln's Inn Hall, the 16th of January 1787.

Mr. Madocks and Mr. Scott, for the defendants, in support of the plea. Although this is in the negative, it is a good plea. Not administrator is negative, but has been held good, 1 Vern. 473. According to Pract. Register, [326], a plea may shew that the plaintiff is not such a person as is alleged, as feme sole, heir, executor, or administrator; so a purchaser admitting his purchase says it is without notice of the plaintiff's equity. In the present case, the plea that the plaintiff is not heir, is the only defence the defendant can have to avoid the discovery. The plaintiff may reply, and then the matter will come in issue, whether the plaintiff is heir or not; if he is not heir, he will have no claim to the discovery.

Mr. Selwyn, for the plaintiff. This is a bill for a discovery, brought by the plaintiff as heir at law to Susannah Cotesworth, the devisee of her husband, and the plea is stated to be a plea in bar. It is bad in form; for all these pleas which go to the person of the plaintiff are pleas in abatement, not in bar: it would be the first time such a plea ever was allowed. A denial of the facts contained in the bill is matter of answer, not of plea. Here, though there is not a denial of all the facts in the bill, it is a denial of some of them. The bill proceeds upon the ground that Sarah James was a supposititious child; it states that Wallis pretends that she was the heir of Susannah Cotesworth, and traverses that; but a plea must not only traverse facts contained in the bill, it must state a new case out of the bill. A plea of purchase for a valuable consideration does this; it states that there was no notice of the plaintiff's equity; here it only denies what is stated in the bill. A plea that the [145] plaintiff is not heir has never been allowed. There was a case of Gun v. Prior (2 Dick. 657; 1 Cox, 197; and Forrester's Exch. Rep. 88, note, which last report is from Lord Redesdale's notes) before your Lordship, the 16th of December 1785, where, to a bill of the like kind with this, there was a plea in bar that the plaintiff was not a relation, or of kin to the person under whom she claimed. Your Lordship was of opinion, that being a mere negative plea, it could not be allowed. A plea of not administrator is a mere plea in abatement; it is only that the plaintiff has not as yet obtained letters of administration; but the present is a mere negative plea, and ought not to be allowed.

Lord Chancellor. This plea, if it is any thing, is a plea in abatement, wherein you traverse the plaintiff's right; as, where you plead that he has never administered. A plea in bar is collateral to the bill: a plea in abatement is a traverse; you never traverse in a plea in bar. The difference between this and the plea of purchase for a valuable consideration is this, that in that case the plea introduces what is dehors the bill: but this plea does not admit the facts of the bill. The plea must admit the subsequent facts of the bill, suppose the first fact objected by the plea is proved. The question