and the vouchers given up to plaintiff, and inasmuch as defendant had not nor never had any copy of said accounts, or either of them, that defendant is not bound to go into or unravel any of said accounts, and that plaintiff should be precluded from again entering into any investigation thereof. The plaintiff having replied, and witnesses being examined on both sides, (a) the cause came on to be heard in June 1801, before his honour the master of the rolls, who on the 9th of July 1801, directed four issues, to try, 1st. Whether the lease of the 1st April 1791, was executed on the day it bears date or not, and if not, on what day it was executed. 2. Whether the rent reserved by said lease of 1st April 1791 was the full and fair yearly value of the lands and premises thereby demised at the time of making the same, supposing said lands and premises to have been set to a solvent tenant, and if not, what was the yearly value of said lands. 3. Whether the lease of the 25th March 1792 was the full and fair yearly value of the lands and premises thereby demised at the time of making such lease, supposing said lands to have been set to a solvent tenant, and if not, what was the fair yearly value. 4. Whether the leases of 1st April 1791 and 25th March 1792, or either and which of them were made or executed in consideration of any and what loan or loans of money, and if so, when, or at what time or times respectively, and by whom and to whom, or for whose use, was such money lent or advanced. From this order the plaintiff appealed, and the cause now came on to be heard before the Lord CHANCEllor. For the plaintiff, Mr. Burston, Mr. Plunket, Mr. Prendergast and Mr. Devereux pressed for a general account on (a) The substance of the parol evidence, as far as is material, is adverted to in the judgment of the court, 1803. DREW V. POWER. > alter that decree, which I ought not to do unless st issue I apprehend was directed by him with more view, because if the lease was not executed on the ears date it is liable to one consideration, and it is another if it was so executed; if it was executed on it bears date, then it was executed at a time when the nt had himself set the lands at a great profit rent: if cuted on that day, but upon a prior day, then the answer lefendant would be contradicted in a material point, e case of the plaintiff supported. The effect of the issue would be merely to try whether the rent was s could be deemed a reasonable rent; it is not at all ated to ascertain whether it was a rent set with a view e an advantage to the defendant: it would be a prosue if the question in the case were, whether a fraud different description had been practised on the plaintiff; a landlord complained that by imposition he had been ced to let at a gross under-value; but it is not an issue that ves at the justice of this case; and the same observation lies to the third issue. As to the fourth issue, the effect at is to devolve to a jury the trial of a question which, th respect to this subject, does not belong to a jury to try; cause the question for the court here is, whether these ises are to be taken in a court of equity as an evasion of e statute of usury, or an unfair advantage taken by the efendant of the distresses of the plaintiff; and the issue ould probably mislead the jury, for they would have rought before their consideration, whether the loans of moaey was part of the bargain made: that is not precisely what a court of equity means to confine itself to; the true consi 1803. DREW V. POWER. 1803. DREW v. POWER. July 2. the foot of the dealings between the parties, and insisted there was such evidence of fraud and advantage taken, that the bond obtained by the defendant should only stand as a security for so much money as he should be able to prove was actually advanced for the use of the plaintiff. As to the leases, they contended that there was sufficient evidence for the court to set them aside without directing any issue: that it was clear they were obtained merely through the influence of the loan of money, and there is a clear and admitted under-value in the rent, as appears by the immediatė underletting at a profit of 100%. per ann. For the defendant, Mr. Attorney General, Mr. Saurin and Mr. O'Driscoll contended on the first part of the case, that the defendant was entitled to the benefit of the settlement of accounts for the balance of which the bonds had been passed; as to the leases, they insisted that it was by no means a universal rule that no lease can stand which is obtained by a creditor from his debtor: it must be shewn to be at such an under-value as shews a command over him. There is no direct evidence here that the defendant was to have the lands at less than another; the only evidence is an inference, by connecting the lease with the loan of money, that the rent must have been less than the lands were worth at the time and they urged that the defendant was surprised by a great deal of evidence on the plaintiff's part as it went to matters not precisely put in issue, and as to which therefore the defendant had not a fair opportunity of cross examining the witnesses. Lord CHANCELLOR. My mind is influenced by what was the impression on that of the master of the rolls when he made his decree: I am called on to alter that decree, which I ought not to do unless I think it insufficient to obtain the purposes of justice: now he has directed several issues, and has not at all entered into the case except so far as he has directed those issues. The first issue I apprehend was directed by him with more than one view, because if the lease was not executed on the day it bears date it is liable to one consideration, and it is liable to another if it was so executed; if it was executed on the day it bears date, then it was executed at a time when the defendant had himself set the lands at a great profit rent: if not executed on that day, but upon a prior day, then the answer of the defendant would be contradicted in a material point, and the case of the plaintiff supported. The effect of the second issue would be merely to try whether the rent was such as could be deemed a reasonable rent; it is not at all calculated to ascertain whether it was a rent set with a view to give an advantage to the defendant: it would be a proper issue if the question in the case were, whether a fraud of a different description had been practised on the plaintiff; as, if a landlord complained that by imposition he had been induced to let at a gross under-value; but it is not an issue that arrives at the justice of this case; and the same observation applies to the third issue. As to the fourth issue, the effect of it is to devolve to a jury the trial of a question which, with respect to this subject, does not belong to a jury to try; because the question for the court here is, whether these leases are to be taken in a court of equity as an evasion of the statute of usury, or an unfair advantage taken by the defendant of the distresses of the plaintiff; and the issue would probably mislead the jury, for they would have brought before their consideration, whether the loans of money was part of the bargain made: that is not precisely what a court of equity means to confine itself to; the true consi 1803. DREW V. POWER. |