where the only purpose of the bill would be to state that fact because it was a fact within the view of the court.

For the defendant, Mr. Saurin, Mr. Fitzgerald, Mr. Gould and Mr. Dwyer, insisted, First. That the bill should not be entertained because the case made by it might have been a defence at law to the ejectment as it goes to shew that a year's rent was not due, and if the tenant has proved that case here, he might also have proved it at law. It will be highly mischievous if a tenant may file such a bill for the purpose of raising an injunction and involve his landlord in an equity suit, whenever an ejectment is brought for non-payment of rent, instead of contesting the matter at law, and shewing on the trial (if he can) that a balance is due to him by his landlord, so as to reduce the sum due within a year's rent. But Secondly. The tenant should according to stat. 4 Geo. 1, c. 5, have brought into court the rent ascertained at law to be due: and although his bill was filed before the amount of it was ascertained, he might upon judgment being obtained, have amended or filed a supplemental bill and thereon have brought in the rent, as was done in D'Arcy v. Beasly. It is the obvious policy of all these laws not to allow the tenant to litigate with his landlord except upon the terms of bringing in the rent ascertained at law to be due.

For the plaintiff, Mr. Burston, Mr. Hawksworth and Mr. Henchy, in reply.

The account in this case was too complex to be taken at Nisi Prius. It includes various dealings for a space of sixteen years, during which time the landlord never gave his tenant a single distinct acquittance for rent; and withont taking this complex account, it cannot appear that the rent

1804.

O'CONNOR

v.

SPAIGHT

was not due. As to the second objection, the stat. 4 Geo. 1, c. 5, applies in express terms only to cases where the bill is filed after judgment. Besides that act was intended merely to apply to cases where the rent was actually due, and the tenant came to be relieved against lapse and omission in not paying it. But here the rent was not due, and it would therefore be unconscientious in the landlord to avail himself of this act to work a forfeiture where it was evidently intended for a very different class of cases. The tenant here has an original ground for filing his bill quite distinct from what the act gives, and in such case he is not obliged to bring in the rent; and this was Lord CLARE's construction of this act in Hyde v. Morgan(a).

Upon the opening of the case, the Lord CHANCELLOR put the plaintiff on shewing that there was a complicated account depending between him and the defendant; and to falsify defendant's answer as to some material items in the account as sworn to by him. This having been done, his lordship directed the account, observing as follows:

Lord CHANCELLOR.

The principle on which Lord CLARE said he would act, was, that if a bill were filed for the purpose of obtaining an injunction, and the defendant put in an answer, swearing in such a manner, as that an injunction could not be maintained upon it, and that the answer was afterwards falsified, so that the case at the hearing would maintain the injunction, he would not have permitted that on which the court was compelled to rely in the first instance to affect

a) It was found impossible to collect a sufficiently accurate note of this case or of D'Arcy v. Beasly, to warrant any attempt at in, troducing them at length.

1804.

υ.

SPAIGHT.

the justice of the case, and he would have put the plaintiff into the same situation as if the answer had been originally O'CONNOR fair. This, I confess, is the opinion I entertain. The act says, if more than a year's rent be due, such and such 66 things shall be done;" but the act assumes the fact that a year's rent is due. If in the result it appears that by means of transactions of this kind between the parties that was not the case, I do not think the act intended to preclude relief. I have a case of Morton v. Drew where the arrear claimed was an arrear not due during the possession of the plaintiff, but during the possession of his father, of which the plaintiff might know nothing; now, where the landlord had accepted rent from the tenant actually in possession, but during that possession had an account pending with his father, on which he was entitled to a balance, it would be monstrous to construe the act to cause a forfeiture under such circumstances.

The ground on which I think that this is a proper case for equity, is, that the account has become so complicated that a court of law would be incompetent to examine it upon a trial at Nisi Prius, with all necessary accuracy, and it could appear only from the result of the account that the rent was not due. This is a principle on which courts of equity constantly act by taking cognizance of matters, which, though cognizable at law, are yet so involved with a complex account that it cannot properly be taken at law, and until the result of the account, the justice of the case cannot appear. Matter of account may indeed be made the subject of an action, but an account of this sort is not a proper subject for this mode of proceeding: the old mode of proceeding upon the writ of account shews it: the only judgment was that the party "should account," and then the account was taken by the auditor: the court never went into it.

1804.

O'CONNOR

υ.

SPAIGHT.

The decree directed, "That it be referred to the master to take an account of the rents of the premises, and for that purpose that a survey should be made of said premises ac"cording to the terms of the lease, by such proper surveyor

as the master should appoint, and that it be referred to said "master to approve a proper person for that purpose: And "that the master should take an account on the foot of all

66

dealings and transactions between the plaintiff and the "defendant, including the rents of said premises as they "should be ascertained by said surveyor; and that in taking. "such account, the master should report particularly the "balance due at the time of bringing the said ejectment; "and also the balance appearing due at the time of making "his report: And reserved all further consideration of "costs, and ordered that the plaintiff should speed his cause "and proceed on the account, &c."

Reg. Lib. xlix. 381.

Feb. 22.

A lease granted at the same time with a loan of money by lessee to lessor, set aside, although the proposal for connecting the loan with the

lease moved

MOLLOY v. IRWIN.

THE plaintiff, being tenant for life of certain lands with

the usual leasing power for three lives or thirty-one years, in 1797 advertised the lands to be let, and several proposals for leases were made, at various rents, so far as 1s. 6d. per acre: but the plaintiff who was then very much pressed for declared that he would not grant a lease to any per

money,

from the lessor. But an under-lessee bona fide, and not concerned in the transaction of the loan, not disturbed.

son who would not accommodate him with a loan of money. Thereupon the defendant entered into a treaty and came to an agreement with plaintiff to take a lease for three lives or thirty-one years, at a rent of 11. Os. 6d. per acre; in pursuance of which, leases were executed on the 30th of April 1798, by plaintiff and his son, Coote Molloy, who was remainder-man in tail, and about the same time, defendant lent to the plaintiff the sum of 2001. for which he took his and his sons's four promissory notes; payable in 6, 12, 18, and 24 months: there was a covenant in the lease, that the wife of the plaintiff should have an annuity of 501. per ann. out of the rent, if she should survive her husband. Under this lease defendant held, without being disturbed, until November, 1799, when plaintiff having recovered from his embarrassments, called on the defendant to give up the lease, offering to pay him so much of the 2001. as had not been already discharged by withholding the rents, and on his refusal filed this bill, praying that the lease might be deemed fraudulent and void, or be taken as a security only for the repayment of the sum of 2001. and that plaintiff might be restored to the possession, on payment of the balance due, after taking an account on the foot of the rents and profits, and the said sum of 200%.

The defendant, by his answer, insisted that the transaction was a fair one on his part, he having given the full value for the lands (as to which fact the evidence was contradictory); and that as to the loan, the proposals for it was made after the parties had agreed for the lease, and came from the plaintiff himself, who had been a practising barrister, and must have known the law upon the subject, yet took advantage of the confidence which defendant had in him; he submitted that the whole of plaintiff's conduct was the result of a plan previously digested, by which he might first receive defendant's money, and then set aside his lease.

1804.

MOLLOY

V.

IRWIN.