Page images
PDF
EPUB

1788.

TWINING

against MORRICE.

[*829]

[*330]

[ocr errors]

Mr. Mansfield, Mr. Hardinge, and Mr. Mitford, (for the defendants). -The sale ought not to be carried into execution, having [*] passed under a mistake, all parties thinking it to be copyhold, and it turns out to be freehold. Wherever a man is drawn, by accident or mistake, into a bargain, this Court will stand neuter and leave the party to go to law. The only person who could form a judgment on the subject was Blake, who has made himself the agent for the buyer. It is impossible to say there is not a difference of value, though copyholds held of the manor of Sion are nearly, they cannot be wholly of the value of freehold; there is always a difference, as the lord would expect a sum of money to enfranchise. If it had been sold as freehold, and turned out to be copyhold, the contract could not be enforced (5): Hick v. Phillips, Pr.Ch.575.; then it should be the same in this case. 2d. The contract should be set aside also on account of the situation of Blake, who from agent for the seller is become the agent of the buyer. It is the same as if he had bid for himself. Mr. Twining can be in no better situation than Blake himself would have been. If he, going to the sale as agent for the seller, had bid for himself, and had come to this Court for a performance of the contract, the Court would not decree it. The agent or trustee of the seller cannot become the buyer, Whelpdale v. Cookson, 1 Vesey, 9. (6) then every thing affecting him must affect Mr. Twining, and the sale, if not valid to Blake, will not be so as to him. Blake appeared at the sale as the agent of the vendor; every body present thought him so; Taggart looked upon him as his agent, and when he bid, conceived he bid for him. Taggart had no intention to sell to Blake or to Twining. Whereever a man has got an estate by misrepresentation, this Court refuses to give assistance, Phillips and Duke of Bucks, 1 Vern. 227. Then, 3dly, with respect to the relief prayed against Blake: it is true, there is no case where such a relief has been given against a solicitor; but in Arnot v. Biscoe, 1 Vesey, 95. the Court thought it had a jurisdiction for that purpose. And in Dashwood v. Fendon, in 1748, the cause stood over to enquire whether the parties stood in any other character than as agents. If a person, having notice of an incumbrance, sells to one having no notice, who sells to another, though this vendee has no remedy against his vendor, yet he has against the first seller, Ferrars v. Cherry, 2 Vern. 384.

[ocr errors]

Mr. Madocks and Mr. Stratford (for Blake). There was no fraud on the part of Blake, nor any corrupt motive to benefit [*] Twining in the purchase: his bidding for him was accidental; and he was at liberty so to do, not being employed to keep up the price. If the defendant has any remedy, it must be at law, this Court will not interfere in cases where an action will lie.

The defendants offering to read the evidence of Addison one of the defendants, Mr. Scott opposed it, on the ground that he was a defendant subject to payment of costs, and therefore incompetent.

Mr. Mitford argued, that this was not sufficient to render his evidence incompetent, and cited a case of Downing v. Townshend in 1753, [ Ambler, 280. 592.] where Sir George Downing wrote a note and delivered it to Mrs. Townshend, by which he gave to Mrs. Townshend whatever monies she might have of his in her hands at the time of his decease, for the use of her daughter. On a bill filed claiming certain sums of money which Mrs. Townshend claimed to hold in trust for the daughter, it was a question, at the hearing, whether Mrs. Townshend's evidence should be

(5) See post. 4 vol. 497. and Calcraft v. Roebuck, 1 Ves. jun. 221. 226. Drew v. Corp, 9 Ves. 368. Et vide 13 Ves. 78. and Sugden, Vend. & Purch. 252, 255., and notes (5th edition).

(6) Vide Supplement to Vesey, sen. 8, 9, 10, 11, 12.

read,

should be money read, as she was a defendant, and if her holding the held fraudulent, would be liable to costs. Lord Hardwicke ordered the evidence to be read, though he said he saw the importance of the question to families, and that Courts would admit of such evidence with great caution; yet, as she had no direct interest, her evidence was competent.

But his Honor thought it was impossible to say the defendant, when He was a trustee on examined, was not in a situation to be swayed. whom Twining was calling for a specific performance of a contract, he therefore thought his evidence could not be read.

Master of the Rolls. These are two bills, the first filed by Mr. Twining for a specific performance of the contract for the sale. The second by Mr. Taggart impeaching the sale, and praying that it may be set aside; or if not so, praying a remedy against Mr. Blake. The principal question, on the first bill, is with respect to the specific performance; and it is admitted, on all hands, that it is not every contract which is entered into that a court of equity will carry into execution. Several points have been made whether this is such a contract as should be [*] carried into execution: the first is with respect to value; but I think the evidence is not conclusive on that subject; it is not such as to assist the vendor, a great deal, as to the transaction. Neither do I think any blame is to be imputed to Mr. Blake. With respect to the intelligence communicated to Skynner, I think that would not afford a ground for successfully resisting the specific performance; the estate seems pretty nearly equal in value whether it be freehold or copyhold. Perhaps, in the converse, if represented as freehold and turning out copyhold, it might not hold; because the party buying might particularly wish for a freehold estate, but, on the vendor's side, it does not hold -nil operatur. The ground I shall go upon leaves the character of all parties unimpeached. The sale intended was a sale by auction, where every one who would might bid: if any thing therefore happened that would cast a damp upon the sale it must be hurtful to the vendor. With respect to bidders being employed for the vendors, I do not say the doctrine in persons Bexwell v. Christie is wrong: but every body knows that such constantly employed. It is said, if those persons were known it would be inconvenient and detrimental, because it would deter fair bidders: but Blake was such if it was the idea of the persons present at this sale that Mr. a bidder, it was detrimental to the vendor. (7) Here he was known to be the agent of the vendor, he began early as a bidder, and, in fact, was the only real bidder. It is likely that he should be thought, by the persons present, to bid for the vendor, and, if I believe the witnesses, I must believe that it did chill the sale. Into this situation he was brought by the conference with Mr. Twining: the fair consequence is, that the sale did not proceed with so much advantage as it otherwise would have done. Mr. Scott said, if I thought the persons in the room thought him a puffer, it was thinking him what the law would not allow him to be; I cannot say I think so, as they knew the practice to be to employ such By an inadvertent act, Mr. Blake was in a situation which hurt persons. the sale, and was put into that situation by Mr. Twining: it is therefore not such a case that I can decree a specific performance. I will not set the contract aside, but will leave the plaintiff to his remedy at law. (7) Both bills dismissed.

(7) Vide the references in note (1), antea.

are

1788.

TWINING

against MORRICE.

[ *331 ]

[blocks in formation]

[*] NEWMAN against GODFREY and Others.

(Reg. Lib. 1787. B. fol. 643.)

THE bill was filed by the plaintiffs, on behalf of themselves and other German merchants who used to employ Benjamin Mee, since become a bankrupt, as a factor del credere in selling linens and other goods to customers in England, at a certain rate of credit; and it stated, among other things, that the defendants, among whom was enumerated the defendant Daniel Nantes, formerly clerk to Mee, were, for a considerable time before the bankruptcy, creditors of Mee, and that the defendants, being desirous to obtain a security for their debts, had conversations and consultations together, at which it was agreed that they should get from the persons to whom Mee had sold goods belonging to the plaintiffs or the other German merchants, as much of the money as they possibly could, either in money or notes, and that they accordingly got from them several large sums of money, and acceptances for notes, and the bill went on to state the defendant to have obtained several sums from other debtors, for goods consigned from the German merchants. The defendant, by his answer, said that Mee was not, for a considerable or any length of time, before the month of April 1784, (the time of the bankruptcy) indebted to him in any sum of money whatsoever, except a small sum for his salary as his clerk, which, at the time of the bankruptcy, amounted to 91. or thereabouts, and denied that he was desirous that his debt should be paid out of the money paid as factor to the plaintiffs, or that he had any consultations with Mee or the other defendants, respect. ing the manner in which Mee should discharge his debt, or that Mee indorsed any bill to him, or, by any means, let him have the benefit of the sums of money or bills charged in the plaintiff's bill; and the defendant disclaimed all interest in the sums of money, bills, &c. enquired after by the plaintiff's bill.

To this answer, the plaintiff took a great number of exceptions, on account of the defendant not having answered the subsequent parts of the bill. Upon arguing the exceptions before Master Hett, he overruled them, and reported the answer sufficient. Upon exceptions to the Master's report,

[*] Mr. Mansfield, Mr. Scott, and Mr. Hollist argued that the defendant Nantes was not a mere witness, but a party against whom relief was to be obtained; he is charged as being a party in a fraudulent transaction, he may, therefore, be put to answer to the circumstances of the fraud; all he has done is to deny that he received any of the money, but this is not sufficient. Suppose we should be able to prove that he was a creditor, and was paid out of these funds, we should have a right to his answer to the further circumstances. He is charged, in the bill, as clerk. In that capacity he is liable to answer. Like the case of attornies, who are liable to answer to the circumstances of things done in the course of business: as such, having put in an answer as a defendant, he should have answered the whole case, Cookson v. Ellison, (ante, 252.) Mr. Mitford and Mr. Steele (for the defendant).- The judgment which the Master has formed, is right. Nantes was not bound to answer further, unless there is some special circumstance to compel him so to do. He was made a party merely as being a creditor. If he had been charged to have received the sums as book-keeper, it would have been very doubtful whether he could have been compelled to answer, as being similar to the case of an attorney. He has answered that he was

a cre

a creditor only to the amount of 97. and that, he has not received any of the bills or notes; further than that he stands merely in the light of a witness. If they could prove that he had received any money, he would, on this answer, be compelled to repay it, as having disclaimed being a creditor. The case of Cookson v. Ellison does not apply; there the party had answered part of the circumstances, he had stated a part of the conversation, and the exception taken was that he had not stated the whole.

His Honor, for a long time, doubted whether the defendant was not called upon in further character than as a witness; but, at length said, that the defendant having sworn that he is not a creditor, nor had received had done away all his interest, and reduced of the any money, himself to the case of a mere witness. If they can prove him to have received any of the goods or money, he cannot hold them, having disclaimed all title to them. He can put himself in no worse situation than by such disclaimer. It is a principle that a mere witness shall [*] not be made a party to a bill. I was struck by the observation, that, by some parts of his answer, it might appear that he had further claims; but his answer is such that he can have no title. person was to be made a party, I do not know where it would end; it would rake into every circumstance of a man's life, to prove him a bad man. I think the Master was right in disallowing the exception.

If such a

Exceptions to the Master's report over-ruled.

1788.

NEWMAN

against

GODFREY.

[ *334 ]

ON

Cox against PEELE. [19 April.]

(Reg. Lib. 1787. A. fol. 688.)

An Appeal from the Rolls.

Bill to carry into execution on

P

a parol agreement between

that the estate

N the 21st August 1777, one Theed mortgaged the premises, being two leasehold houses in St. Mary-le-bone, to the defendant, for securing 400l. and interest, and afterwards conveyed the equity of reThe defendant got possession, after- solicitors, that demption to Sir Lawrence Cox. wards, by ejectment, and filed her bill for a foreclosure, on which she there should be obtained a decree for an account at the Rolls, 25th May 1779. No a decree of further proceedings were had till 1783, when the attornies for the plain- foreclosure; tiff and defendant agreed, with respect to the final decree, that the estate should be sold, the mortgagee paid her principal and interest, and the remainder paid to Sir Lawrence Cox, but that the defendant should in the mean time take her decree. This agreement was not in writing. On 13th March 1784, the final decree of foreclosure was obtained, and the premises were soon after put up to sale by auction; but the sale was afterwards put off, and the premises were not sold, and Mrs. Peele insisted on her decree of foreclosure, and that the premises should not be put up to sale.

Upon this Cox filed the present bill, praying that the premises might be sold, the defendant paid her principal and interest, and the residue be paid to him according to the agreement between the attornies, and, afterwards, becoming a bankrupt, his assignees filed a supplemental bill. The defendant, by her answer, denied any knowledge of the agreement. The cause came on to be heard the 29th January last, at the Rolls, when [*] his Honor dismissed the bill with costs, on the ground that the agreement was not in writing, and, therefore, void, under the statute of frauds. And the plaintiffs brought this appeal. Mr. Selwyn and Mr. King (for the plaintiffs). This is not a case

within

should be sold, the mortgagee paid her principal and interest, and the remain

der to the mortgagor, dis

missed at the Rolls, as within

the statute of

frauds: on appeal, evidence ment read de bene esse, but the decree

of the agree

affirmed.

[ *335]

1788.

Cox

against PEELE

[*336]

within the statute of frauds, the only member of that statute which could apply is," Upon any contract or sale of any lands, tenements, "or hereditaments, or any interest in or concerning them." Here the agreement was not concerning any interest in lands, it was only an agreement between the solicitors, with respect to the order of the court. Suppose the estate had been subject to a judgment, and the agreement had been, that the judgment should be paid, that would not be an agreement respecting an interest in lands; an agreement as to when the cause should be heard could not be within the statute. This was merely an agreement to make the act of court conditional, and that an absolute decree should be applied to a particular purpose. Mrs. Peele was herself active in the agreement. It is fraudulent in her now to insist on her decree. In fact, the agreement is in part executed; for all the proceedings subsequent to the decree, are in consequence of the agree

ment.

[ocr errors]

The plaintiffs proposing to read the evidence of their solicitor as to the agreement, which had not been read at the hearing, the bill having been dismissed upon opening it, Lord Chancellor said, that, properly, no evidence can be read here that was not read below, and if evidence, which ought to have been read there, was rejected, that ought to be the gravamen of the appeal. But seeming inclined to hear the evidence read, Mr. Scott then opposed it on the ground of being parol evidence of an agreement, which, to be binding, ought to have been in writing. The introducing parol evidence, he insisted, was in the very teeth of the statute, which is that no evidence shall be admitted of an agreement unless it is in writing, and signed by the party or a person authorised by him: even had this been in writing, it was beyond the solicitor's authority to make such an agreement. He was employed to foreclose the equity of redemption, and he makes an agreement which would render the decree nugatory. The defendant in her answer swears it was without her consent.

Lord Chancellor. If it is to be maintained at all, it must be as an agreement relative to a decree. The whole was under the [*] management of the solicitors, who were competent to make agreements relative to the order of court. If they suffered an earlier foreclosure than is usual by the form of the court, or opened the decree otherwise than by consent, such an agreement would not be binding. But I cannot see how the plaintiff can introduce, by parol evidence, an interest paramount the decree, the equity would have been to open the foreclosure. If any body has obtained a decree of foreclosure on terms which have not been complied with, the application should have been to open the foreclosure, where such evidence might be introduced. I will take the evidence de bene esse. I think it will be better to contest its application than its validity.

The evidence being read, and being imperfect, Lord Chancellor said, he thought the bill would not do. The evidence is by no means sufficient to overturn the decree. Decree affirmed.

An application had been made by motion to his Honor to open the foreclosure, but it was refused.

« PreviousContinue »