1824.-Rowlinson v. Hallifax. [27] ROWLINSON V. HALLIFAX. (a) 1824, March 1st.--Conduct of a suit. The conduct of the cause given, on motion, to one of two co-plaintiffs, on its appearing that the other had no interest in the matters in question. THE object of this suit was to recover part of the estate of William Hyde, deceased, which, under his will, had become vested in his sister, Jane Hyde, also deceased, who, by her will, gave all her property to Sarah Rowlinson, and appointed David Rowlinson her executor. The bill was filed by the plaintiff John Rowlinson, alone, stating himself to be executor of Daniel Rowlinson, and consequently the personal representative of Jane Hyde; but, on the hearing, it appeared that the will of Jane Hyde had not been proved in the proper ecclesiastical 'court, and the cause was ordered to stand over. Letters of administration of the estate of Jane Hyde were afterwards granted to Sarah Rowlinson, and the bill was amended by joining her as a co-plaintiff. The cause continued to be conducted by the solicitors of John Rowlinson, and a decree for an account and inquiries was made. Mr. Horne, and Mr. Jacob, on the part of the plaintiff, Sarah Rowlinson now moved that the solicitors might deliver to her the papers in the cause, and that she might be at liberty to prosecute the suit. [*28] Mr. Spence on the other side. The Vice-Chancellor observed, that if he had been aware, at the time when the cause was first heard, that John Rowlinson had no interest in the matters in question, he should have dismissed the bill, instead of allowing it to be amended; and he made the order as prayed, upon the plaintiff, Sarah Rowlinson, paying the solicitors the costs due to them, as between solicitor and client. (a) Ex relatione, Mr. Jacob. parties to the bill, or the suit should be brought by the plaintiff in behalf of himself, and all others standing in a similar situation; and it should be so stated in the bill. Egbert v. Wood, 3 Paige, 517. Fish v. Howland, 1 Paige, 20. Brown v. Ricketts,3 Johns. Ch. Rep. 553. But where the bill is for the residue, all the residuary legatees must be made parties. Brown v. Ricketts, ubi supra. A subscriber to a joint stock corporation, created by the legislature, who, complains of an inequitable distribution of the stock, and who is seeking to reach stock which has been improperly assigned or apportioned to others, should file his bill in behalf of himself, and of all other subscribers standing in the same situatiou. Walker v. Devereaux and others, 4 Paige, 299. An order made at the hearing of a cause, and giving the plaintiffs leave to amend, for the purpose of adding parties, or showing why they were unable to bring all proper parties before the court, is sufficiently complied with, by an amendment, stating that the plaintiffs sue on behalf of themselves and all persons, (other than the defendants,) who fill a particular character, and alleging that the persons filling that character are so numerous, that if they were individually made parties, the suit could not be effectually prosecuted. Milligan v. Mitchell, 1 Mylne & Craig, 511. S. C, 3 Mylne & Craig, 72. See further Attorney General v. Heeler, post, 76. Weld v. Bonham, post, 91. Douglas v. Horsfall, post, 184. Handford v. Storie, post, 196. Gray v. Chaplin, post, 267, 272, and note, ibid. 1824.-Heaphy v. Hill. Reg. Lib. 1823, B. f. 639. "This court doth order, that the plaintiff, Sarah Rowlinson, be at liberty to carry on and to prosecute this suit;" the order then directs the costs of the solicitors, who had acted for the plaintiff J. Rowlinson to be taxed, and upon payment, that they should deliver up, on oath, to Sarah Rowlinson, all papers relating to the cause; and it reserves the question of the costs of the motion, as between the plaintiffs, Sarah Rowlinson and John Rowlinson. *HEAPHY V. HILL. 1824, 19th March.-Specific performance. [*29] Bill by a lessee, for the specific performance of an agreement for a lease, dismissed, because it was not filed until more than two years after the defendant had given notice to the plaintiff of his intention not to perform the contract, on account of the latter not having fulfilled it on his part. On the 9th September 1819 the plaintiff agreed to let to the defendant a house and garden, for seven, fourteen or twenty-one years, at the option of the latter, for a premium of fifty guineas, and an annual rent of eighty guineas; to make certain alterations and improvements in the house and garden at his own expense; to procure permission, from the ground landlord, for the defendant to build a coach-house and stable on the premises; and to complete the alterations and improvements, and deliver possession to the defendant, on or before the 29th of that month. The alterations and improvements not being finished, nor the permission obtained, by the time agreed upon, the defendant, on the 8th of October 1819, informed the plaintiff, by letter, that, if the alterations and improvements were not completed by the 14th of that month, he should give up all idea of taking the house, and look out for one elsewhere. And the plaintiff having informed the defendant that the lease was at his house ready for signature, and requested the defendant to name a time for executing it, the latter refused to execute it until the agreement had been fulfilled on the plaintiff's part. The bill was filed on the 1st of September 1821. The defendant, in hist answer, said that, since he had refused to execute the lease as before mentioned, a period of nearly two years had elapsed, during all which *time the plaintiff had retained possession of the house, and had acted [*30] as owner of it. And he submitted that the plaintiff had abandoned the agreement and acquiesced in the defendant's refusal. By the decree, the master was directed to inquire and state whether any thing, and what, had passed between the parties, or any person on their behalf, relating to the subject of the agreement, after the letter of the 8th of October 1819. It appeared by the master's report, that nothing passed between the parties relating to the matter in question, after the 9th of November 1819, until the VOL. II. 3 1824-Fitch v. Chapman. 17th of August 1821, when the plaintiff's solicitor wrote to the defendant's solicitor, requesting to know whether the latter would appear to the bill. The cause now came on for further directions. Mr. Sugden, and Mr. Treslove, for the plaintiff. Mr. Heald, and Mr. Sidebottom, for the defendant. The VICE-CHANCELLOR :-As this bill was not filed for more than two years after the treaty had been broken off and the defendant had refused to perform the contract, and as the only reason assigned for the delay is, that the plaintiff's attorney had mislaid the papers relating to the transaction, 1 shall dis miss the bill, but without costs.[1] Plea by husband and wife, intitled as a joint and several plea; held, that the word "several" was mere surplusage, and did not vitiate the plea. THIS was a bill of foreclosure against a husband and his wife. The defendants put in a plea of usury, and intitled it as a joint and several plea. The plea now came on to be argued. Mr. Horne, and Mr. Turner, for the bill, insisted that the plea was irregular on account of its title; because, as the wife joined with the husband in the plea, it could not in any sense be considered as a several plea. Mr. Wray, for the plea. The Vice-Chancellor considered the term "several" as meaning nothing; and that, being mere surplusage, it did not vitiate the plea. The purchaser of a pension granted by his late majesty, during pleasure, is not entitled to a pension granted by the present king to the same person and of the same amount, under a new warrant reciting the grant made by his late majesty which had ceased by the demise of the crown, though the motive for granting both pensions was the same. THE plaintiff filed this bill to obtain payment of a pension granted by his [1] Vide Watson v. Reid, I Russ. & Mylne, 236. Where the time of performance has been fairly limited by a notice stating that within such a period that which is required must be done, or others wise the contract will be treated as at an end, the court has very frequently supported that proceeding; and bill having been afterwards filed for the specific performance of the contract, the court has dismissed them with costs; Taylor v. Brown, 2 Beav. 180. See further, Garrett v. Earl of Besborough, 2 Dru. & W. 441. 1824. Clay v. St. John. present majesty to the defendant, in continuation of a previous pension of the same amount granted to him by the late king, and purchased by the plaintiff in the year 1808. The bill set forth a warrant of the late king, under his royal sign manual, dated the 12th of August, 1780, by which his late majesty declared his royal will and pleasure to be, and, thereby directed that an annual pension of 1317. should be paid by the commissioners of the treasury unto the honorable Mary St. John, the widow of Henry St. John, a captain in his majesty's navy, to commence from the 5th of April, 1780, and to continue payable during his majesty's pleasure, and, in case of her decease, to be in like manner paid to Henry St. John, (the defendant,) the son of Captain St. John. In 1873, Mrs. St. John died. In March, 1807, a commission of bankrupt was awarded against the defendant, Henry St. John. The assignees under that commission caused this pension to be put up for sale by public auction, and described it in the particulars of sale as "a pension from government during the life of Henry St. John, (the defendant,) then aged thirty-eight." The plaintiff became the purchaser at that sale for the sum of 3817. An assignment was thereupon executed by the defendant, St. John, as well as by the assignees, whereby the pension of 1317. so granted by his late majesty and all arrears and growing payments thereof, and all powers and authorities for recovering the same, *and all right, title, interest, &c. of [*33] the defendant St. John, and his assignees, to the pension of 1317, so granted, were assigned to the plaintiff, his executors, administrators and assigns. The deed contained a covenant by the defendant St. John, and his assignees, in the usual terms for the better assigning and assuring the premises to the plaintiff, his executors, administrators and assigns, "and for more effectually enabling him or them to recover and receive the said annual pension or sum." The defendant St. John, some time before the demise of his late majesty, obtained his certificate under the commission of bankrupt; and the plaintiff, up to the demise of his late majesty, duly received the pension under the assignment. On the 1st of July 1820, his present majesty granted a warrant under his sign manual, in the following terms: George, R.-Whereas our late royal father, of happy and glorious memory, was graciously pleased to authorize and direct the late paymaster of pensions to pay unto Henry St. John, during his royal pleasure, an annuity or yearly pension of 1317. and which said annuity was, in pursuance of an act passed in the twenty-second year of his late majesty's reign, transferred to our exchequer, and payable out of his civil list revenues; and whereas the said annuity or yearly pension hath ceased by reason of the demise of our said late royal father, and we are graciously pleased to give and grant unto the said Henry St. John an annuity or yearly pension to the like amount, our will and pleasure is, that, by virtue of our general letters of privy seal bearing date the 2d day of February 1820, you do issue and pay, or cause to [*34] 1824.-Clay v. St. John. be issued and paid, out of any our treasure or revenue in the receipt of the exchequer applicable to the uses of our civil government, unto the said Henry St. John, or to his assigns, the said annuity or yearly pension of 1311. without account, to commence from the 29th day of January 1820, the day of our accession, and to be computed, payable and paid, by the day, from such day of commencement thereof, to and for the 5th day of April 1820, and from thenceforth to be paid quarterly or otherwise, as the same shall become due, and to continue during our pleasure: And for so doing this shall be your warrant. Given at our court at Carlton House, this 1st day of July 1820, in the first year of our reign. By his majesty's command, To the commissioners of our treasury." N. VANSITTART, The officers of the exchequer refused to pay the pension to the plaintiff under this new warrant, unless he received from the defendant St. John a power of attorney, or other proper authority; and would not recognize the assignment of 1808 as a sufficient authority for payment to the plaintiff under the new warrant. After stating these facts, and also that an agent of the defendant St. John, (who was made a co-defendant in this suit.) had, under an authority from St. John, who was residing abroad, received the pension under the new warrant and threatened to remit it to St. John, the bill charged that the pension under -the new warrant was not a new pension, or different or distinct from the [*35] pension granted by his late majesty, but a continuance thereof, and that the last warrant proceeded and was grounded upon, and had reference to, the grant and warrant of his late majesty, and, but for the same, would not have been granted or issued ; and that it has always been customary, in point of form, on a demise of the crown, to issue fresh warrants under the royal sign manual for the continuance and future payment of all pensions subsisting at the time of such demise; and that the fact of the last warrant making the pension payable to the defendant St. John and his assigns, although the grant and warrant of the late king made it payable to the defendant St. John alone, was evidence of the plaintiff's title. The bill prayed that it might be declared that the pension under the warrant from his present majesty was a continuance of the former pension, and that the plaintiff might be declared entitled to it as a purchaser; that the defendant St. John might be decreed specifically to perform his covenants contained in the indenture of assignment, and to execute a proper instrument to entitle the plaintiff to receive all arrears and future payments of the pension from the accession of his present majesty, and for an account of the payments received by either of the defendants, and for an injunction to restrain them from receiving any future payments. |