of Coventry v. Coventry, and all the cases on jointuring powers. The cases of tenant in tail and of ecclesiastical persons are totally different; there was no power to bind a remainder-man arising from the nature of an use previous to the statute of uses; and as to ecclesiastical persons, they are prevented by statute from making leases except pursuant to the statute; and all leases not made pursuant thereto, are expressly made void against the successors to all intents and purposes. The same reporter makes Mr. Justice WILMOT say, "it is much to be lamented that after the statute "of uses, the courts of common law had not adopted all "the rules and maxims of courts of equity." It is scarcely to be believed that this could have fallen from Mr. Justice WILMOT: and if Lord MANSFIELD found fault with the decision in the case of Rattle v. Popham, as he is represented to have done, I think with deference that there was no ground for the remark. I must therefore consider what is thus attributed by the reporter to Lord MANSFIELD and Mr. Justice WILMOT in the case of Zouch v. Woolston, as of no authority on this subject; and I think I am warranted by the decision in Campbell v. Leach, (made with the concurrence of such high authorities as Lord Chief Justice DE GREY, and Chief Baron SMYTH) in saying that a contract of this description does bind a remainder-man. An objection has been raised from the uncertainty which the remainder-man would be under with respect to the tenure of the estate. Unquestionably this is a serious consideration, but it applies to many of the cases on jointuring powers; especially as to the lands charged, and the extent in which they were bound. But the courts have gone great lengths to assist in rendering certain what has been thus left uncertain. There are cases of contracts to make a jointure where it was impossible for the remainder-man to know how far the estate was bound without filing a bill. 1803. SHANNON V. BRAD STREET. 1803. SHANNON V. BRAD STREET. A question has been put, whether if this were a case of a parol agreement in part performed it could be enforced? That I think would raise a very distinct question; a question upon the statute of frauds, and perhaps a remainder-man might be protected by the statute, though the tenant for life would not. For the party himself is bound by a part execution of a parol agreement principally on the ground of fraud, which is personal. Such a ground could scarcely be made to apply to the case of a remainder-man unless money had been expended, and there had been an acquiescence, after the remainder vested, which were held by Lord HARDWICKE in Stiles v. Cowper,(a) in the case of an actual lease under a power, but with covenants not according to the power, to bind the remainder-man to grant a lease for the same term with covenants according to the power. Again, this is said to be a lease in reversion: I find nothing to warrant this. It is a contract, and a contract must necessarily precede the execution of it; the writing certainly was not complete because it refers to a memorandum, to bę subsequently executed. If Sir Samuel had died before the first of November, it might have been a different question, but the plaintiff was in possession under Sir Samuel at the time of his death. The next objection is founded on the covenant to lay out 2001. in improvements; but I think this will not avoid the contract, if the rent be notwithstanding the best that can be got. Such a covenant is not necessarily a fraud. It may be made with a fraudulent intent, and when it is so made it will avoid the lease; if it were colourable, and merely for the purpose of putting money into the pocket of the tenant for life it would avoid the lease; or if it were not originally intended as a fraud but were afterwards used fraudulently (a) 3 Atk. 692. (as for example, a covenant to repair, and a sum of money under colour of damages for breach of that covenant recovered by the tenant for life) a court of equity would at least take care that the damages should be laid out on the lands. Another objection is, the uncertainty of the rent; but I do not think it uncertain, for it is capable of being reduced to a certainty; and it is a common form of reserving rent in this country. Every executory contract muct contain this species of uncertainty, but if it contains all that leads to future certainty, I take it to be sufficient. 1803. SHANNON υ. BRAD STREET. Remainder. man lying by, and suffering the tenant to without giving him notice of impeach his title, a ground of relief against his intention to man. Here there is also an additional circumstance, and that is the length of time during which the tenant has enjoyed. The present defendant came of age in November, 1792; he takes no step to avoid the lease till 1801, and permits the tenant to enjoy during all the intermediate time; he admits by his answer that both before and after he attained his age of twenty-one he had knowledge of the agreement, and does not pretend that the plaintiff entered under any other the remainder. agreement. He says he considered the agreement not binding on him as a remainder-man, but he admits that he never told the tenant so. Then this man, entering and continuing in possession by virtue of this contract, lays out considerable sums on the estate. It is admitted that he laid out 2001; the bill states a larger sum, but suppose it only 2001. that would be within a trifle of three years' rent. It would be absurd to suppose that he did not lay out this money on the faith of the agreement. It is said that this money was not laid out till 1794; but I think it is rather to be collected from the pleadings that it was laid out before; but if not laid out till then, it was laid out in confidence of the defendant's acquiescence in the agreement, and I think rather strengthens the case of the plaintiff. It appears that 1803. SHANNON V. BRADSTREET. of time remain der-man shall not turn round the tenant to seek compensation against the assets of tenant for life. the defendant knew the money was laid out; if he meant to avoid the agreement, he ought to have given the tenant immediate notice, and it strikes me that his not doing so, might form a distinct ground of equity against Sir Simon Bradstreet. After lying But there is another consideration in this case, arising by for a length from the length of time. Here has been an enjoyment by the tenant without any idea of a demand against the assets of Sir Samuel Bradstreet for non-performance of his agreement; they may have been administered in the mean time, in such a manner that the party could not pursue them; they may have been administered in such a manner that they may be pursued to the prejudice of the representative, who may have paid legacies, may have paid the residuary legatee. Is this nothing? Shall a party now turn round the tenant and say, 66 your demand is against the assets of Sir Samuel, and not against me." It is to be considered too that the length of time might vary the demand against the assets of Sir Samuel, because within that time, the value of the lands has varied, so that the damages that would be recovered now, might greatly exceed the damages that would have been recovered at the time of the death of Sir Samuel. Then, shall a party lie by, and vary the rights of others in such a way as this, without giving them notice of his intention to do so? This circumstance of itself, I think, would be a strong ground for me to continue the injunction to the hearing of the cause. But I have no doubt, on principle, that a contract of this kind should be enforced against the remainder-man. Injunction continued till the hearing. 1803. Jan. 31. LESSEE OF LAWLOR v. MURRAY. The writ AN ejectment had been brought in this case in the King's grounded on Westm. 2. com judges to seal a bill of exceptions, does not lie where the exception taken is to an order of a court own records. any order made upon motion. be made out by Bench (in the name of the feigned lessee of Lawlor the statute against Murray); and after verdict for the plaintiff and judg- manding ment to recover his term, a writ of error was brought, and error was assigned that it appeared on the face of the record, that the plaintiff's term had expired before judgment: (it had in fact expired before trial)-upon this a motion was made in the King's Bench on behalf of the plaintiff, for liberty of law amendto amend the record by enlarging the plaintiff's term, ing one of its and the court having been of opinion that the plaintiff Nor semble to should have liberty to make such amendment, and having made an order accordingly, a bill of exceptions to the opinion of the Lord Chief Justice and the rest of the Justices lies, it ought to of the Court of King's Bench was tendered, which their lordships were pleased to refuse to seal. Thereupon a writ grounded upon the Stat. Westm. 2. c. 31(a) commanding the justices of the King's Bench to affix their seals to the said exceptions had been made out by the Cursitor, and issued; in obedience to which their lordships did affix their seals accordingly. After the writ had issued, and before it was returned, the Lord CHANCELLOR, having been informed of the proceedings, and conceiving the writ to have issued improvidently, and that it ought therefore to be superseded, desired to hear counsel on behalf of the defendant to that point, and it was accordingly on a former day (Dec. 1st. 1802) argued by Mr. R. Colles(b) on behalf of the defendant. the clerk of the crown and not by the cursitor. And it should not issue with out special order from the person holding the great seal. |