(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.

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 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 2004.; the bill states a larger sum, but suppose it only 2007. 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 VOL. I

L

1803.

SHANNON

υ.

BRAD

STREET.

Remainderand suffering man lying by, the tenant to lay out money without giving him notice of

his intention to

impeach his title, a ground of relief against the remainder

man.

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.

But there is another consideration in this case, arising 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 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,

may

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.

LESSEE OF LAWLOR v. MURRAY.

1803.

Jan. 31.

The writ grounded on

Westm. 2. com

manding judges to seal a

bill of excep tions, does not lie where the taken is to an

exception

order of a court

own records.

upon motion.

cases

AN ejectment had been brought in this case in the King's Bench (in the name of the feigned lessee of Lawlor the statute against Murray); and after verdict for the plaintiff and judgment 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 any order made made an order accordingly, a bill of exceptions to the opi-ere this writ nion 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 be made out by 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 is sued; 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.

His lordship now delivered his opinion.

(a) Vid. Register of Writs, 182. a.

(6) The reporters were not present at the argument.

the clerk of the

crown and not And it should by the cursitor. not issue with out special order from the person holding the great seal.

1803.

Lessee of
LAWLOR

V.

MURRAY.

Writ improvi dently issued, the controul of

while within

Lord CHANCELLOR. (After stating the facts:) I can find no trace of any such writ as this having been issued on an occasion like the present; though there is a form of such a writ in the register, from whence it might be supposed that it had issued. But in the present case, I am clearly of opinion that this writ has issued improvidently and ought to be superseded: if it had been returned, or if it had not gone out of the custody of the officer, it must have been quashed; be quashed: if beyond its con- but under the circumstances, I apprehend the regular mode troul, shall be of proceeding is by superseding and not by quashing the writ; because the writ is beyond the controul of the court when it is delivered into the hands of the party. I shall therefore issue a writ of supersedeas.

the court, shali

superseded.

The grounds on which I conceive that this writ should be superseded, are two: First, That no officer of this court was warranted in making it out without an order of the court; and secondly, That if any officer was warranted, it was clearly not the cursitor,

The Bill of Exceptions is given by the stat. of Westm. 2, c. 31. 13 Edw. 1, and the writ in question was devised to enforce obedience to that statute; the form of the writ is in the register, and there seems to have been a supposition that every writ that was to be found in the register, was to be issued by the cursitor: this is a great mistake; there is a great number of writs with which the cursitor has nothing to do. The register is a general collection of writs to be used by the officers of the court, and in the distribution of the business of the court, it is the office of the cursitor to make out writs of different descriptions for the purpose of conducting the ordinary course of proceedings, I believe that, originally, no writs issued but upon a petition to the great seal, stating the circumstances of the case, and

1803.

Lessee of
LAWLOR

V.

paying a writ in conformity to them; in early times the writ perhaps was not to be found in the register, and then a proper writ was to be framed: and certainly the person having the custody of the great seal was the person to judge MURRAY, of the proper form of the writ, and according to what we find in the books, the cursitor was an officer not entrusted with the framing of any writ whatever. If a writ were to be framed, the person entitled to frame it in ancient times was the master, and the cursitor only wrote the writ. But by degrees, when a number of writs came to be setttled and adapted to different cases, the cursitor was permitted to issue them without application to the court. Upon communication with persons well informed on this subject in England, I believe that this is the history of the case, and that the cursitor was originally a mere clerk who wrote the writ; and if there was any difficulty, that a special application to the court was necessary.

Even in later times, the writ was often framed with a good deal of attention and care. In the case of Paine v. Sydney, Dyer, 208, a. the writ was framed by the Chancellor "by the advice of the Chief Justices of both "benches and of the Chief Baron of the Exchequer,❞— merely because the circumstances differed from those which accorded with the form of the writ on the subject in the register. So, when a new remedy was given by the statute; the first writ could not be made out by the cursitor : he had nothing by which to make it out; there must have been a special application to the court; then the writ, when framed, was entered in the register, and this would have warranted the cursitor, in issuing a writ in similar cases. I therefore take it that in all cases, a special application to the court is to be considered rather as dispensed with for the sake of convenience than as not necessary, and that it would be the duty of the cursitor in all cases, not within the ordinary