OF By Reports of CASES DECIDED in the HIGH COURT Term 1842 to Hilary Term 1844. [1] DELL v. HALE. Nov. 7, 1842. Michaelmas 1844. The 36th of the Orders of August 1842 is not applicable to the case where there is something of a specific and particular nature in the bill which the demurrer has not covered. The bill alleged that the Plaintiff and the Defendant, Hale, had obtained a patent for making gun-cases; that disputes having arisen between the parties they were desirous of dissolving their connexion, and that after various previous conversations and discussions on the subject, a negotiation took place between the Plaintiff and the Defendant on the terms of such proposed dissolution. That in reference to this matter the Defendant, on the 2d May 1842, wrote and sent to the Plaintiff a letter in the words and figures following, &c., and that in reply to such letter, the Plaintiff on the same day wrote and sent to the Defendant a letter, which was as follows, &c. That the Plaintiff having by the last-mentioned letter accepted the proposal contained in the Defendant's letter for an assignment of his interest to the Plaintiff and a dissolution of the partnership, the said two letters constituted a complete and valid contract and agreement binding upon both parties. The bill, after charging that the patent was a good, valid and subsisting patent, and that an assignment ought to be [2] made to the Plaintiff of the Defendant's share, prayed a declaration that the letters constituted in equity a complete, valid and binding agreement between the parties, and that it ought to be decreed to be specifically performed; and for an assignment to the Plaintiff of the Defendant's interest, &c. The Defendant demurred to so much of the bill as required him to answer and set forth whether a negotiation did not take place between the Plaintiff and the Defendant &c. [following the statements in the bill as before mentioned], and for cause of demurrer shewed that "the said alleged agreement in the said bill set forth is not a good and valid and complete agreement, and that the terms of such agreement are not sufficiently certain or capable of being sufficiently ascertained, and that the said letters in the said bill mentioned do not constitute a complete valid and binding contract as between the Plaintiff and this Defendant;" and therefore, and for divers other causes of demurrer in the said bill contained, as to so much of the bill as was demurred to the Defendant demanded the judgment of the Court, &c. The Defendant then answered the residue of the bill at great length, and in the course of his answer admitted having written the letter of the 2d May 1842, but insisted that part of it was open to explanation, and that he had sought to give the explanation in a subsequent letter. Mr. Simpkinson and Mr. Wright now appeared in support of the demurrer and V.-C. VIII.-1 1 answer. The Defendant being too late to file a demurrer alone has filed a demurrer and answer. The subject-matter of the demurrer might, it is true, have been applied to the whole bill, but that circumstance, though formerly an objection, (1) is no longer so. By the 36th Order of August 1841 no demurrer shall be held bad and [3] overruled upon argument, only because it shall not cover so much of the bill as it might by law have extended to. Here the Defendant has demurred to part only of the relief where he might have demurred to the whole; but as he has given a full and detailed answer to the residue of the bill, that is sufficient. Hodgkin v. Longden (8 Ves. 2). [THE VICE-CHANCELLOR. He has not demurred to any part of the relief.] Mr. Kenyon Parker, in support of the bill, referred to Todd v. Gee (17 Ves. 273), Dan. Ch. Pr. vol. 2, p. 25. The following cases were also referred to in the course of the argument: Morgan v. Harris (2 Bro. C. C. 124), Tomkin v. Lethbridge (9 Ves. 178), Wetherhead v. Blackburn (2 Ves. & B. 121). THE VICE-CHANCELLOR [Sir J. L. Knight Bruce]. It appears to me that the contention of the demurring Defendant is not warranted either by the letter or the spirit of the 36th Order. The object of that order was, I believe, to introduce this practice, that where there are several questions or matters in a bill, to all of which the demurrer might have extended, and the demurrer, through mistake or otherwise, does not extend to all of them, it is not to be overruled merely on that account. The order does not say that in no case shall a demurrer be overruled, but that it shall not be overruled only because it does not cover so much of the bill as it might by law have extended to. In overruling this demurrer I shall do so, not merely because there is something which it has not but might have covered, but because there is something of a specific and particular nature which it has not covered. Previously to the new rules, though a Defendant generally might demur to the relief, and give [4] discovery, yet if he did not question any part of the relief sought, a mere demurrer to discovery would be overruled, because it was considered a contradiction to admit the claim of the Plaintiff to relief, and yet to exclude him from the means which the law allowed him of proving those facts which were essential to his case. Here the bill prays relief founded on certain letters. No part of the relief is demurred to. The demurrer is confined to the discovery of these letters without proof of which the Plaintiff might have no case at the hearing. As the Defendant could not before the New Orders so he cannot now file such a demurrer; and as it was put in at a time when it was not competent to him to demur to the whole bill, I think I ought not to give the Defendant leave to amend. Demurrer overruled. [4] ARKWRIGHT v. COLT. Nov. 8, 1842. A bill for an account of dilapidations was filed by the reversioner of a lease against the personal representatives of a person whose interest in the lease appeared to be that of equitable tenant for life, with remainders over, alleging that such person in his lifetime was in possession, during which time the dilapidations accrued, that he paid rent, and was liable to the covenants in the lease, and that on his death the Defendant entered into possession as his administrator, paid rent, and became liable under the covenants. Held, that there was not a sufficient allegation of debt to support the bill. The bill, which was filed by the Plaintiff on behalf of himself and all other the creditors of James Colt, stated that, by a lease dated the 5th August 1760, Margaret Countess Conyngsby demised certain water-mills with their appurtenances and meadows adjoining to James Bowman Clarke, his executors, administrators and assigns from the 24th June 1760, for ninety-nine years, if certain persons therein named, or any or either of them, so long lived, at the yearly rent and subject to the covenants therein reserved, amongst which were comprised covenants for putting the premises (1) See Dawson v. Sadler, 1 Sim. & St. 537; and see Story Eq. pl. 302, n. in repair within a given time, keeping them in repair during the term and delivering them up in repair at the expiration of the term. That J. B. Clarke entered into pos-[5]-session of the premises so demised, and continued in such possession down to the time of his decease; that he died in 1776, having, by his will,(1) dated July in the same year, bequeathed the said leasehold premises to William Toldervy and Thomas Davies, their executors, administrators, trustees and assigns, upon trust, in case his daughter should marry with the consent of them or either of them, to convey the said premises so that the same should be settled upon trust only, and for the use of his said daughter and such husband as she should marry with such consent as aforesaid, during the joint lives and life of the survivor, with remainder to the use of the heirs of the body of his said daughter, in such manner and shares as the trustees should appoint. And the testator appointed the said trustees and his said daughter his executors. That W. Toldervy and T. Davies proved the testator's will. That by an indenture of lease and release and assignment, dated the 30th November 1782, and made between Toldervy and Davies of the first part, Mallet Clarke of the second part, and James Colt of the third part, being the marriage settlement of Mallet Clarke and James Colt, Toldervy and Davies, in consideration of the marriage, assigned the premises (the bill not stating to whom) upon trust, out of the rents, issues and profits, to pay the rent so reserved in the said lease, and to observe and perform all the covenants therein contained on the part of the lessee, his executors, administrators and assigns, and subject thereto, to permit the said J. Colt and Mallet, his intended wife, and the survivor of them, to receive the rents of the said premises, and after the decease of the survivor of them, upon trust for the children of the marriage as therein mentioned. (2) [6] That the marriage was duly solemnized. That J. Colt entered into and continued in the beneficial ownership of the premises down to the time of his decease; that he died on the 30th August 1832; and that letters of administration with the will annexed were granted to the Defendant, Sir J. D. Colt, who thereby became and was the sole legal representative of James Colt, and as such representative had possessed himself of personal estate of the said James Colt to a large amount. The bill then stated that during the continuance of the lease, by indentures of lease and release executed in 1810, the hereditaments comprised in such lease were conveyed to the Plaintiff, his heirs and assigns, and that, by virtue of such conveyance, he became entitled to the reversion in fee expectant on the determination of the lease. That James Colt, from 1810 down to his death, duly paid to the Plaintiff the rent reserved in such lease, and that he also became liable to the performance of the covenants comprised in the lease. That on the 16th December 1832 the last surviving life named in the lease died; and that the lease thereby became determined. That during the continuance of the lease the premises were not kept in repair by James Bowman Clarke or James Colt according to the covenants, and were upon the decease of James Colt left in a state of great dilapidation. That on the decease of James Colt the said Sir J. D. Colt, as his administrator, with a copy of the will annexed, entered into possession of the same several premises, and paid the rent to the Plaintiff down to December 16, 1832. The bill, after charging that by virtue of certain proceedings in a suit for the administration of the estate of James Colt, the Defendant had rendered himself personally liable to pay the Plaintiff and the other creditors of James Colt, prayed for an account of what was due to the Plaintiff in respect of dilapidations of the said premises, or otherwise [7] under the covenants of the lease, and also of what was due to the other unsatisfied creditors of James Colt, and for the usual accounts in a creditor's suit. To this bill the Defendant demurred for want of equity and want of parties. Mr. Russell and Mr. Metcalf, in support of the bill. It is not necessary that the legal assignees of the lease or their representatives should be parties. In Sainstry v. (1) See the will more fully stated, 1 Y. & C. 240. (2) The bill did not state more particularly the limitations subsequent to the life interest of Mr. and Mrs. Colt, nor whether there were any children of the marriage. Grammer (2 Eq. Ca. Abr. 166), a case somewhat similar to the present, the pauper assignee was evidently not made a party. As to the equity of the case, though the Plaintiff cannot shew himself a legal creditor of the intestate, yet as the intestate was liable under the covenants, this bill is maintainable. [THE VICE-CHANCELLOR. How was he liable under the covenants? You do not allege that he was assignee of the entire lease, but only that he was equitable tenant for life with remainders over.] The bill alleges that he was in possession, became liable, and that upon his death his administrator, as administrator, entered into possession and became liable: Close v. Wilberforce (1 Beav. 112; see 3 Beav. 373; 4 Beav. 350). Considering the allegations of the bill, it does not lie in the mouth of those who represent James Colt's estate to say that it was not an equitable assignment to him of the lease. He dealt with the premises in the character of equitable assignee and reaped the whole benefit of the lease. Lucas v. Commerford (3 Bro. C. C. 166; 1 Ves. jun. 235; 8 Sim. 499). [THE VICE-CHANCELLOR. Did not the Defendant in that case admit himself liable on the general covenants, though he took an objection to a particular covenant?] THE VICE-CHANCELLOR [Sir J. L. Knight Bruce]. I confess that the opinion [8] which I entertained at the commencement of the cause has not been displaced by the argument. I am not satisfied in this case that there is a sufficient allegation of any subsisting demand. Neither the late Mr. Colt nor Sir John Colt was ever in possession of the property as legal assignee, nor indeed is that attempted to be argued. The late Mr. Colt was equitable tenant for life of the benefit of the lease. It is stated that he entered, and I am willing to consider the statement in the bill as being that he entered in that character. I apprehend, however, that by his entering into possession in that character he did not become liable to the landlord, as assignee, in respect of the covenants in the lease. He dies, and it is stated that upon his death Sir John Colt entered as his administrator into possession; that must mean, claiming as his administrator. It is not suggested in the bill that he had any title. It is said that he paid rent to the Plaintiff. His doing so would not create a continuing liability in him to pay rent or perform the covenants. It is true that there is a general allegation in the bill that he became liable to perform the covenants; but without a more particular statement of facts leading to that conclusion the allegation is not sufficient. The bill does not state any case of legal or equitable demand either against Sir John Colt or the assets of the late Mr. Colt. The demurrer, therefore, must be allowed, but it is a case in which liberty should be given to amend. [9] SKEATS v. SKEATS. Nov. 8, 9, 1842. [S. C. 12 L. J. Ch. 22; 6 Jur. 942.] One seised of a copyhold estate for the joint lives of himself and J. and the survivor, surrenders it to the lord, and takes a new grant for the joint lives of himself, J. and W., the surrenderor's son, and the longest liver of them: Held, under the circumstances of the case, that this was intended to be an advancement for W. John Skeats of Romsey, Hants, being seised to him and his heirs, according to the custom of the manor of Bangor, in the county of Berks, of a messuage and two acres of land, holden for the lives of himself and his brother, James Skeats, and the life of the longer liver of them, in August 1812 surrendered the same into the hands of the lord, who regranted to him seisin of the premises, to have and to hold the same to him, John Skeats, the before-named James Skeats, and William Skeats, the son of John Skeats, then aged about seven years, for the term of their natural lives, and the life of the longer liver of them successively, at the will of the lord, &c. Whereupon John Skeats paid a fine of ten guineas, and was duly admitted tenant by copy of the premises. John Skeats, by his will, dated in September 1838 (at which time he was about 80 years old), after directing payment of his debts, devised his real estates (including, as the will stated, the messuages held of the manor of Bagnor for his, the testator's, own life, and the life of his son, William Skeats, who was nominated by him as a trustee for his, the testator's, own use and benefit when he, the testator, obtained the last grant of the premises, and not for his, the said William Skeats's, own advancement), and all his personalty to the Plaintiffs, their heirs, executors and administrators, upon trust for his, the testator's, wife for her life, and, after her decease, upon trust to sell the same and divide the produce amongst so many of his children and grandchildren as should be then living in such parts and shares as the Plaintiffs should think reasonable. And he appointed his sons, the Plaintiffs, James and Joseph Skeats, his executors. The testator died in November 1838, having survived his brother, James Skeats, but leaving the Plaintiffs and [10] William Skeats and some other children surviving him. It was stated at the Bar, but this did not appear in evidence, that William Skeats was the youngest son of the testator. Upon the death of the testator William Skeats entered into possession of the property held of the manor of Bagnor. The bill charged that the Defendant, William Skeats, some time previous to the death of the testator, procured from the testator the copy of the testator's admittance to the premises under a promise to return the same; that he neglected to return the same, though repeatedly required so to do; and that in consequence of this neglect the testator had given one of the Plaintiffs, Joseph Skeats, authority to proceed at law against the Defendant for recovery of the document. The bill prayed that the Defendant might be declared a trustee of the premises for the Plaintiffs, and might be decreed to surrender them accordingly. The Defendant, by his answer, stated that, at the age of nineteen, he went to London, where he remained about nine years; that, at the expiration of that time (1833), he went to visit his father, and that, upon that occasion, his father, after observing that the property would ultimately be his, gave him the copy admission. The Defendant wholly denied that the document was given him under a promise to return it. He alleged that the transaction was intended by his father as an advancement to him, and insisted that such advancement could not be affected by the words of the will, supposing the will to be valid. He suggested, however, that the will had been made under undue influence. At the hearing of the cause evidence was given on the part of the Plaintiffs of an application having been made by the testator to the Plaintiff, Joseph Skeats, to procure from the Defendant the restitution of the copy admission, and [11] of Joseph Skeats having accordingly requested the Defendant to deliver up the same. No other circumstances, however, of any importance appeared from the depositions. Mr. Simpkinson and Mr. Parker, for the Plaintiffs. It is admitted that James was a trustee for John, and we contend that both James and William were trustees for John. It may be conceded that, if the name of James had not been used, a presumption would have arisen that the surrender and grant was an advancement for the son; but that presumption can hardly arise where the name of a stranger is interposed between that of the father and son. Dyer v. Dyer (2 Cox, 92) does not go that length. [THE VICE-CHANCELLOR. Supposing John had died, leaving James and William, for whom would James have been a trustee?] There is nothing to shew that he would have been a trustee for William. No case goes so far. In Crabb v. Crabb (1 Myl. & K. 511) the banker was the agent for both son and father. The terms of the admission and surrender go far to shew that it was the intention of John to reserve to himself the whole equitable interest. The conduct of John, subsequent to the transaction, is in conformity with the fact of his being absolute owner. [THE VICECHANCELLOR. Are the subsequent acts of the father evidence?] We concede that the will (see 15 Ves. 51) is not evidence, but may not the other acts of the father be admitted to rebut the presumption that he intended to give a beneficial interest? Mr. Goodeve, for the Defendant. [THE VICE-CHANCELLOR. Is not the general custom in these cases that the first life has a right of surrendering for the whole three lives? The question is whether the first life for the time being had not a right of disposition of the estate without the consent of the last life.] That must have existed in all the cases. It [12] is submitted that that is a question involving only the devolution of the legal estate. The father makes a surrender, and takes a grant without taking to himself any further interest, but giving an interest to his son. That must be for the benefit of the son. If it were not so intended, he would have made |