1839. Taylor v. Brown [*183] *THE MASTER OF THE ROLLS :-The question which has been discussed in this case is, whether the defendant remains under any obligation to perform the agreement. He says he does not, and that he has ceased to be under any obligation from the 13th of July, 1836. Now as I have before stated, where the contract and the circumstances are such that t.me is not in this court considered to be of the essence of the contract,--in such case, if any unnecessary delay is created by one party the other has a right to limit a reasonable time within which the contract shall be perfected by the other. It has been repeatedly so considered in this court; and where the time has been thus fairly limited, by a notice stating that within such a period that which is required must be done or otherwise the contract will be treated as at an end, this court has very frequently supported that proceeding; and bills having been afterwards filed for the specific performance of the contract, this court has dismissed them with costs. (a) [1] This, however, is not a case of that description, for though I do not mean to say that the defendant might not at various periods of this transaction have given such a notice, yet he has not done so ; for what happened, as I understand it, was this, that on the 2d of July, 1836, the defendant's solicitors sent Mr. Palmer's opinion that the requisition had not been complied with, and under circumstances which amounted to a demand of further explanation; and further explanation being given and being in the course of being obtained, on the 13th of July, 1836, the letter is sent, saying, from this time and on this very day I shall consider the contract at an end. Under these [*184] circumstances, I think the *defendant is still under an obligation to (a) See Heaphy v. Hill, 2 Sim. & St. 29; Watson v. Reid, 1 Russ. & Myl. 236. [1] "In contracts relating to land, time is not in general considered in equity as of the essence of the contract, and it was once considered that it could not be made so, even by express stipulation. But after it had been decided that time might be made essential, the tendency of the decisions, especially those of Sir John Leach, has been to hold persons concerned in contracts relating to land, bound, as in other contracts, to regard time as material. And this principle has been applied with greater strictness where the property was connected with trade. These cases, [i. e. the cases supporting the above positions] appear to me so sound in principle, that I certainly will not be the first to shake them. Heaphy v. Hill and Watson v. Reid are direct authorities, that if one of two parties, concerned in a contract respecting lands, gives the other notice that he does not hold himself bound to perform, and will not perform the contract between them, and the other contracting party to whom the notice is so given, makes no proper assertion of his right to enforce the contract, equity will consider him as acquiescing in the notice, and abandoning any equitable right he might have had to enforce the performance of the contract, and will leave the parties to their remedies and liabilities at law." Wigram, V. C.; Walker v. Jeffreys, 1 Hare, 348. The Vice-Chancellor, in the last sentence of the above quotation, seems to take a different and less rigid view of the rule deducible from the two leading cases above cited, and probably more conformable to their spirit than the Master of the Rolls, who intimates the necessity of "a notice stating that within such a period that which is required must be done, or otherwise the contract will be treated as at an end." Although Walker v. Jeffries was decided Jan. 11, 1842, the above case of Taylor v. Brown, is not noticed in the elaborate judgment of the Vice-Chancellor. See further, 1 Russ. & M. 237, n. 1; 514, n. 2. 2 Sim. & Stu. 30, n. 1. Hobson v. Bell, ante 17, 25, n. 1. 1839. Frost v. Capel. perform the contract. The decree will be, that upon showing a good title the contract must be performed.[1] The only other question is, who is to pay the costs of the litigation up to this time? The litigation up to this time is not whether a good title has been shown, but whether that letter of the 2d of July, 1836, did or did not put an end to the contract; I am of opinion that it did not; and all the litigation and expense up to this time has been occasioned by the defendant's insisting upon that which he was not entitled to, and having wholly failed in the defence, I think the defendant must pay the costs of the suit up to the hearing! 1839 : December 24. FROST V. CAPEL. A testator gave some pecuniary legacies to infants, to be paid to them on their attaining twentyone; and by a codicil he directed, that as far as it might be practicable, all his legacies should be paid within six months after his decease: Held, that the direction in the codicil did not accelerate the time of payment to the infant legatees. THE testator by his will, dated in 1834, expressed himself in these terms:-"I give and bequeath the following legacies, with the payment of which I subject and charge my personal estate, that is to say, I give and bequeath to William Webb Frost, Charles Maynard Frost, Catharine Sarah Frost, Henry Wigram Frost, Peter Frost and Elizabeth Jane Frost, children of my nephew, Robert Frost, lately deceased, the sum of 1000l. each, to be paid to them on their respectively attaining the age of twenty-one years." The testator also gave other legacies, as to which he directed no definite time of payment. By a codicil, dated in 1838, he expressed himself as follows:-"I desire as far as may be practicable, that all legacies shall be paid within six months. after my decease." *This bill was filed by four of the infant legatees of the legacies [*185] of 1000l., against the executors and residuary legatees, to have their legacies paid into court under the statute 36 G. 3, c. 52, s. 32, with interest from the end of six months after the testator's death. The executors, two of whom were the residuary legatees, contended that they were entitled, upon the construction of the whole will, to the intermediate interest accruing on the legacies between the death of the testator and the attainment of twenty-one years by the infants respectively; on the other hand it was contended, that under the terms of the will and codicil, the plaintiffs were entitled to the interest from six months after the death of the tes tator. [1] As to the right of a vendee to put an end to a contract for the sale of land on the ground that a good title had not been shown, see further, Hoggart v. Scott, 1 Russ. & M. 293, 295, n. 1; 296, n. 2; Tanner v. Smith, 10 Sim. 410, 412, n. 2. 1839.-Romilly v. Grint. There appeared assets sufficient för payment of the legacies. Mr. Pemberton and Mr. W. Daniel, for the plaintiffs, contended, that under the act in question it was practicable to pay the legatees in question within six months after the testator's decease. Mr. Kindersly and Mr. Paynter, contra. THE MASTER OF THE ROLLS :-The testator in this case has by his will and codicil given a great variety of legacies; he has directed some of them to be paid without mentioning at what time, and others he has directed should be paid to the legatees at the age of twenty-one. The legacies of 10007. each now in question were given by the will, with a direction to pay them to those persons on their respectively attaining the age of twenty-one years; there is, therefore, a legacy given to each of them, with a distinct direction for its payment as the legatee should attain the age of [186] twenty-one years. There appears to be a legacy precisely of the same kind in the last codicil, which last codicil contains this direction, "I desire, as far as it may be practicable, that all legacies shall be paid within six months after my decease." The question is, as it appears to me, whether this clause of the codicil was intended to accelerate the time at which the testator had previously directed the legacies to be paid, that is whether he intended to revoke the direction to pay the legacies to these persons when they respectively attained the age of twenty-one years, and to direct the payment at the end of the six months from the time of his death. I think that by the words " as far as it may be practicable," the testator intended to have regard to the state of his assets and nothing else, and that when he speaks of all the legacies he speaks of those only as to which the time of payment was indefinite, and as to the others with respect to which the time of payment was specified in a prior part of the will, he did not mean to alter that time. 1839 December 9, 16. ROMILLY V. GRINT. Defendant dispaupered with the costs of the application, on affidavits, which were not wholly con tradicted by the defendant, showing that he was not in bad circumstances. THE defendant in this cause obtained, ex parte, an order to defend in forma pauperis on the usual affidavit, "that his just debts being first paid, and his wearing apparel and the matters in question in this cause only excepted, he was not worth the sum of 51." It was now moved on behalf of the plaintiff that this order might be discharged with costs, on the ground that the defendant was not a pauper. The application was supported by affidavits of the plaintiff and his [*187] solicitor, showing that the defendant *was carrying on business as a boot and shoemaker, and was apparently in good circumstances; 1839-M'Kenna v. Everitt. many other facts were stated in the affidavits tending to lead to this conclusion. The defendant, in opposition, denied some of these statements, but he allowed many of them to remain uncontradicted by him: he, however, again reiterated the statement" that he was not possessed of property of the value of 51. beyond his wearing apparel, and that he was very largely indebted." Mr. Parker, for the motion. Mr. Hetherington, contra. December 16.-THE MASTER OF THE ROLLS:-This application is to discharge an order obtained by the defendant to defend in forma pauperis; the grounds on which the application is made are, that the order was obtained on a false suggestion, and that the defendant instead of being a pauper is a person in good circumstances, that he is a boot and shoemaker, and has considerable property. An affidavit has been filed by the plaintiff, and the do fendant has answered it, and the result is either that the defendant is a person putting on a fraudulent appearance of credit to carry on trade, or he has improperly obtained this order. Having regard to the affidavits and facts stated, which are within the knowledge of the defendant, and the affidavit in answer, and the mode in which he has met some of the allegations, and the number he has not denied, it does appear to me sufficient to say this order ought not to stand, and must therefore be 1839 December 16. *M'KENNA v. EVERITT. Discharged with costs.[1] [*188] An ex parte order for the examination, de bene esse, of a witness "in her seventieth year, and very week and infirm, and from her advanced years not likely to live long," discharged for irregularity, on the ground that she did not come within the rule, not being "seventy years of age," and not being in a "dangerous state of health." Ex parte order for the examination, de bene esse, of a soldier under military orders to proceed abroad in about six days for six or seven years held regular. On the 23d of November, 1839, the plaintiffs obtained, on an ex parte petition at the Rolls, an order that they should be at liberty "to examine the said Elizabeth Everitt and Thomas James Davey as witnesses for the plain. tiffs in this cause de bene esse, saving all just exceptions." [1] The court refused to dispauper a plaintiff although in the possession of property, and in the exercise of business; the possession of the property being wrongful, the wrongful possession acquiesced in by the adverse party, and the business being necessary to the maintenance of himself and family. Perry v. Walker, 1 Yo & Coll. C. C. 676. And see Isnard v Cazeaux, 1 Paige, 39. Oldfield v. Cobbett, post 444. 1839. M'Kenna v. Everitt. The grounds on which the order had been obtained, as stated in the order and verified by the affidavit of the clerk of the plaintiff's solicitor, were as follows: "he verily believes Elizabeth Everitt, widow, and Thomas James Davey of Woolwich, a private soldier in her Majesty's Corps of Royal Sappers and Miners, to be material witnesses on behalf of the plaintiffs in this suit, and without whose evidence, as this deponent is advised and believes, they cannot safely proceed to a hearing in this cause. And this deponent saith that the said Elizabeth Everitt is in the 70th year of her age, as she informed this deponent, and appears to be very weak and infirm, and from her advanced years not likely to live long. And this deponent saith he hath been informed by the said Thomas James Davey, and verily believes, that he the said Thomas James Davey is under military orders of her Majesty's government to proceed in about six days to the Island of Bermuda, on her Majesty's service, for the period of six or seven years.". Line 19719 + It was now moved to discharge this order, and that the depositions taken thereunder might be suppressed for irregularity. [*189] Mr. Treslove and Mr. Tripp, in support of the motion, contended that the order had been irregularly obtained, that it had been clearly settled that there existed three cases only, in which such an order could be obtained ex parte, namely, where the witness is more than seventy years of age, or is the only witness to a particular fact, or is in a dangerous state; Bellamy v. Jones, (a) Tomkins v. Harrison; (b) and that "if you come upon a case that you cannot arrange in that class you must give notice," Bellamy v. Jones. (c) That here the first witness was not stated to be seventy years of age, but in her seventieth year only, and that it was not sufficient that she was stated to be in an infirm state: nothing less than the witness being in a dangerous state would warrant an ex parte order; Tomkins v. Harrison.(b) As to the second witness they contended there was no authority for obtaining an ex parte order for the examination of a witness on the ground of his being about to go abroad; aud that if a witness in such a situation were allowed to be examined at all, it must be upon an order obtained upon notice : Lee Dicher v. Power, (d) where the order to examine persons who were about to go abroad was made "after hearing counsel on both sides." They also cited Loveden v. Lord Milford,(e) East India Company v. Naish.(g) Belt's note to Hankin v. Middleditch,(h) Rowe v. (i) Mr. Pemberton, and Mr. Purvis, contra, contended that the very advanced age of the first witness, the infirm state of her health and the im[*190] probability of her living *long were together sufficient to justify the order as to her; with regard to the second witness, that the circum (a) 8 Ves. 31. (h) 2 Bro. C. C. 639. (b) 6 Mad. 315; Anon. 19 Ves. 321. (c) And see 2 Daniel's Pr. 546. (g) Bunb. 320. |