1839. Bunbury v. Bunbury.

him by the laws of Holland, and who are now demanding their share of the land? And if there be any such equitable claim, would effect be given to it as a lien on the land under the Dutch law, or would it be an equity only to be made available by the English law, and enforced not in rem by the law of Holland, but in personam by the jurisdiction which this court has over the parties? These are, I am sorry to say, by no means all the questions which may have to be discussed; and it appears to me, that the question as to the personal estate cannot be decided by the law of Holland alone; and that if a moiety of the land should, according to the law of Holland, be decided to belong to the defendants, there may still be questions, to be decided according to the principles of equity acted upon in this court, before it can be determined that the defendants ought, in equity, to take for themselves the moiety of the land which may be adjudicated to them.

If the real estate in Demerara is to be considered by the law of the colony, as a partnership property, it is neverthless partnership property belonging to English subjects. It must be dealt with in connection with the other, if there be other, partnership effects, and must be held subject to all the just claims which may be made *upon it; and then comes the question, [*331] whether it would be just to permit the defendants to withdraw their alleged share of the land from the mass of the partnership property or from the estate of the testator, by a separate proceeding, which does not and cannot take into consideration all the questions which must be determined here, before it can appear whether they have a clear equitable as well as legal title to the land which they claim.

Under all these circumstances, having regard to the questions between the parties, to the accounts which must be taken for the purpose of giving effect to the claim of the defendants, if substantiated to any extent, and seeing that such accounts can only be taken here where the parties are, the ends of justice do appear to me to require, that the defendants should not be permitted to proceed in Demerara to take possession of their alleged share of the land, and that the estate should, for the benefit of all parties, be protected by a manager and consignee till their rights are determined.

But if possession be not taken and no execution be sued out, there may be a convenience in permitting the defendants to proceed to make out their right to a share of the land, so far as to obtain judgment or sentence in their favor, if the law of the colony should entitle them to it. And the plaintiffs ought, I think, to consent (as was done in Beckford v. Kemble) to any order to be made in the suit in Demerara, which this court shall at any time think reasonable.

May 29.-The case was again argued on the form of the order to be made.

THE MASTER OF THE ROLLS:-The question on the present oc- [*332] casion is, whether the court ought to assu ne jurisdiction of the mat

VOL. I.

26

1839. Banbury v. Banbury.

ters which are in controversy between these parties and to determine the questions between them, or whether they ought to be determined in the court of Demerara.

On that question I have already expressed my opinion, for the purpose of this motion, and subsequent reflection has not given me any reason to alter it; at the same time, it is right I should say that I am fully sensible of the many difficulties which attend cases of this kind. There are questions of the greatest nicety and complexity arising between these parties, and I am perfectly aware how easy it may be to make a slip in endeavoring to come to a right conclusion on the subject.

Having formed my opinion that this court ought to have jurisdiction of the case, it is my duty towards those who will be affected by the order I make, not to place them in a worse situation than is absolutely necessary for the purpose of the proceedings in this cause; and therefore, I feel myself bound to place the defendants in the best situation in which I can, having regard to the circumstance, that it may ultimately appear that they are entitled to the share of the property which they now demand; and as far as I can, under present circumstances, I must enable them to get possession of that which may be their right, as scon as it shall be determined to be theirs, if that event shall happen.

A collateral question has given rise to the long discussion of this morning, a discussion which I do not in any degree regret; on the con[*333] trary, I should say that I *have derived considerable assistance from

looking at this question in different points of view. The question is, whether I can, on the present occasion, avail myself of any proceedings which may be carried on in Demerara, for the purpose of assisting the court in determining the real questions between the parties in the cause, when they come on for a final adjudication. There are various very complicated questions in controversy; some of those questions may depend upon or be most materially influenced by the law of Holland, and there is a proceeding now pending before a competent court, which adjudicates according to the law of Holland, which has been adopted by the parties who are to be restrained by the order which I am now to make.

The law of Holland will come into question and have to be ascertained in the proceedings here. The question now raised is, whether those proceedings which have been commenced in Demerara can be so conducted, as to arrive at a conclusion which will assist in the determination of what is the law of Holland in regard to the circumstances of this case. Now it is to be observed, that I have scarcely the means, and if I have the means, they have not been pointed out to me at the bar, by which I can compel the parties so to conduct themselves in the proceedings in Demerara, as to raise all the questions, and to lead to such a conclusion as will really afford this court the means of adjudicating with greater satisfaction than it could otherwise do; for I know of nothing which is to prevent the defendants in those proceed

1839.-Bunbury v. Bunbury.

ings in Demerara, from confessing judgment, and thereby precluding all decision of, and withdrawing all attention of the court from the points, which for the purpose of this suit, it would be convenient to determine, and thus leave the plaintiffs nothing but that which is the bare right on the judgment so obtained.

*The plaintiffs in this cause, have more than once, on the present. [*334 occasion, offered to give judgment or sentence; they have said, let further expense be spared, and we are willing to confess judgment or sentence in that court, and which of course will have to be dealt with, according to the rights of the parties, as they may be determined in this court. The defendants here, insist on going on and having a controversy in Demerara, but they have not pointed out to me, the means by which I am to compel it to take place ; and for anything I know to the contrary, if I were to say that the defendants here should be at liberty to proceed in the colonial court, the very next proceeding in that court would be an admission by the plaintiffs that the defendants are entitled to sentence in that court, and then nothing whatever would be obtained. It is undoubtedly competent for this court to direct the parties so to conduct themselves in any proceedings here or elsewhere, as to raise the necessary questions which it is important to have decided betwen them; but it has not been suggested to me that I ought not to give any directions in that respect; and I think that it is not a convenient occasion, on a motion of this kind, for the court to determine the sort of direction which ought to be given, even it could be satisfactorily given; it would be a more fit opportuity to give such directions when the cause came on for hearing, when every thing that was in controversy between the parties was completely brought forward, and the court was in possession of all the evidence which they thought fit to produce.

With regard to the first object which I think it is my duty to attend to, namely, to place the defendants in as good a situation as I can, that might be accomplished by ordering the defendants in the proceedings *in Demerara to give judgment or sentence at once. It has occurred [*335] to me, however, in the course of the present discussion, that although in one sense this might be a perfectly right and proper course of proceeding, yet I might, nevertheless be doing something which might be prejudicial to the parties and to the court, if, by concluding these proceedings by sentence or judgment, I deprived the court of the means of availing itself of those proceedings with the directions that may be found proper to be given, on the hearing of the cause; and though I confess, that when this matter was under my consideration before, I was exceedingly desirous to avail myself of those proceedings, and am now desirous of availing myself of those proceedings hereafter, if I can do so, yet, under the circumstances to which I am now brought, I do not think that I have the means of giving those directions, which are necessary for the purpose of enabling me to have all the benefit, which I may possibly derive hereafter, from some of the proceedings in that

court.

1838.-Haydon v. Bell.

What I think is proper to be done at present, is this, not to stay these proceedings unless the plaintiffs in this cause, who are the defendants there, will consent to confess judgment or to submit to any order whatever that this court may at any time think reasonable, with respect to the proceedings at Demerara. If they think fit to consent and bind themselves to do that, then, I think, I do all I ought to do or can do, without actually depriving myself of the means of availing myself hereafter of those proceedings in Demerara. This I am as anxious to do as the parties can possibly be, when the time comes that I can do it effectually and properly; but it may turn out to be wholly

unnecessary to do so it may turn out that by the proceedings [*336] *between these parties, it cannot be effectually done; but I do not

wish to deprive myself of the means, if I should be able to avail myself of them, of doing so, on any future occasion. If therefore, the plaintiff's here will consent, I will make that order.

It was ordered that the plaintiffs and the widow "undertaking to submit to and carry into effect any order which the court might hereafter think fit to make, with respect to the proceedings instituted in the colony of Demerara, by the defendants, H. M. Bunbury and A. V. Count de Vigny and wife, as in the pleadings mentioned," that the defendants be restrained from prosecuting any proceedings in Demerara, to recover possession of the plantations, or any stock or effects upon or belonging to the same. And the court referred it to the Master to appoint a consignee and manager of the estates.(a)

A party contracted for the purchase of the benefit of an agreement for the lease of a public house, and also of the stock and good will; he entered into possession before the lease had been granted, paid part of the purchase money and mortgaged his interest: Held, that after this mode of dealing he was not entitled to call for the production of the lessor's title, or for evidence that the lease was made in conformity with the power under which it was granted.

IN December, 1833, a Mr. Hynde had agreed to grant to the plaintiff, Mrs. Haydon, a lease of a public house, upon her completing certain repairs thereof to the satisfaction of his surveyor. Mrs. Haydon, who was in possession, completed the repairs, and in August, 1834, before any lease had been granted to her, she entered into an agreement with the defendant Henry Bell, who acted on behalf of the defendant Ann Bell, to sell all her interest in the

(a) Affirmed by the Lord Chancellor, 19th June, 1839. [That this court has authority to restrain proceedings in a foreign, as well as a domestic court, when the parties to be affected are within its jurisdiction, see 2 Myl. & Cr. 728, n. 1. Beckford v. Kemble, 1 Sim & Stu. 7, 16, n. g. Glascott v. Lang, 3 Myl. & Cr. 451, 459, n. Booth v. Leycester, id. 459. S. C. 1 Keen, 580. Wedderburn v. Wedderburn, 4 Myl. & Cr. 585. S. C. 2 Beav. 208.]

1.

1838.-Haydon v. Bell.

property and good will of the business; the agreement being in the following

terms:

"Flying Horse, Oxford Street.-Mrs. Elizabeth Haydon agrees to sell the lease of above house, having twenty years and upwards, at a rental of 1107. per annum, to Ann Bell at the sum of 20501.; the goods, fixtures and stock now on the premises to be paid for in the usual way of valuation; possession and completion to be on or before the 28th August, instant; all rent, taxes and gas to be cleared, up to the time of possession, and broken windows allowed for; Mrs. Haydon to do all the repairs, to obtain Mr. Hardwick's (a) certificate to enable the lease to be granted; the expense of assignment, &c., to be paid jointly; 12007., part of the purchase money, is to remain on security of the lease, with Henry Bell's notes for three years, at 51. per cent., payable half yearly. The said Elizabeth Haydon not to carry on or be in any way interested in the business of a victualler or retailer of beer, at any house within half a mile of said Flying Horse, during the occupancy of the *said Ann Bell or Henry Bell or any other person on their account, [*338] under the forfeiture or agreed penalty of 5001.

"August 9th, 1834. "E. Haydon.

For Ann Bell, Henry Bell."

Possession of the property and of the stock in trade was delivered to A. Bell and H. Bell on the 2d of September, 1834, when the stock was paid for, and 8501. was paid by A. Bell on account of the purchase of the plaintiff's interest in the property. On the same day, Henry Bell gave to the plaintiff his promissory note in writing, bearing date the 2d September, 1834, as follows:

"London, 2d September, 1834.

£1200. Three years after date, I promise to pay Mrs. Elizabeth Haydon the sum of 12007., on the lease of the Flying Horse public house Oxford. Street, (deposited as a security for said 12007.,) being delivered up, with interest at 51. per cent., payable half yearly.

"Henry Bell."

"Mr. Henry Bell, 10 Oxford Street." Another memorandum of agreement, bearing date the 2d September, 1834, was signed by the plaintiff and Henry Bell, and was as follows:

"Miss Ann Bell having agreed with me to purchase the lease of my house, the Flying Horse, No. 2 Oxford Street, for a term of twenty years and upwards at the rental of 1107., for the sum of 20507., and I having agreed to let the sum of 12007. on security of Mr. Henry Bell of No. 10 Oxford Street, by his giving a note of hand three years after date for the said sum of 12007., bearing interest at 5 per cent., the interest payable half yearly, and also a deposit by the said Ann Bell of an *agreement for the before [*339] mentioned lease, and also the lease, as soon as the same shall be as

(a) The surveyor.