1839.-Nelson v. Bridges.

trustee alone. [THE MASTER OF THE ROLLS. Can that be so? The authority is given to the trustees and the survivor of them, and the executors and administrators of the survivor.] Here neither the trustees nor the survivors, nor the executors nor administrators of the survivor have *executed the power: besides this, the object of the discretion is [*239] dead, and the power is therefore terminated.

Mr. Kindersley and Mr. J. Moore, for the executors, and,

Mr. J. Campbell, for the representatives of J. Eaton, were not heard by THE MASTER OF THE ROLLS, who said that the intention of the testator was clearly that his son John should have the opportunity of redeeming himself by his after good conduct, and which it was clear he had done to the satisfaction of Mr. Smith, the acting trustee; and that under the circumstances he must hold that Smith had approved of his conduct, and had executed the power which was vested in him, and that the representatives of John Eaton were therefore entitled.[1]

1839 November 15.

NELSON V. BRIDGES.

Remedy by supplemental bill, after a decree for specific performance, for the damages occasioned to the plaintiff by the abstraction by the defendant, pendente lite, of part of the subject-matter

of the suit.

IN February, 1833, the defendant Bridges entered into a verbal contract by which he agreed to grant to the plaintiff, Nelson, the right of raising the stone under a plot of 1026 square yards of his land at a fixed rent per yard; the plaintiff entered and part performed his agreement, but Bridges disregarding this arrangement, in the following year agreed to let the same land to the defendant Woodward for similar purposes, and he brought an action of ejectment against the plaintiff to turn him out of possession.

In June, 1834, the plaintiff filed his bill against Bridges and Woodward for a specific performance of "the agreement, and for an injunc- [*240] tion to restrain the action at law.

The plaintiff had been prevented applying to the court for an injunction to restrain the action at law in consequence of the case stated by the defendant's answer; the result was, that the action proceeded and the defendant Bridges recovered possession of the land in May, 1835, upon which Woodward entered and commenced working a considerable portion of the quarry; and in April, 1837, a decree for a specific performance was pronounced. The plaintiff, in 1838, filed a supplemental bill against Bridges and Wood

[1] Vide Davoue v. Fanning, 2 Johns. Ch. Rep. 252.

1839.-Nelson v. Bridges.

ward, stating these facts and praying for a reference to the Master to ascertain the amount of the loss and damage sustained by the plaintiff by the conduct of the defendants in the bill set forth, and that the amount might be paid to the plaintiff by the defendants. The case now came on for hearing.

Mr. Pemberton and Mr. Elmsley, for the plaintiff, contended that the relief now asked was merely consequent on the relief granted by the original decree; that from the additional circumstances having taken place pending the suit they could not be then brought before the court upon the original bill. That the plaintiff after the decree in equity had no more than an equitable right, and that a court of law would not take cognizance of the fact of the part performance of the agreement so as to take the case out of the statute of frauds; that as the plaintiff could not maintain an action at law for damages, he was entitled to apply to this court for equitable relief.

[*241]

*Mr. Richards and Mr. L. Wigram, contra :-This is a mere suit for damages which the court will not entertain, the proper remedy being by an action at law, it being the legitimate province of a jury only to assess damages. If the agreement had been in writing the plaintiff might have originally proceeded at law for damages, and, after the decree for specific performance which declared that the plaintiff was entitled to the specific performance of the agreement for a license to get stone and referred it to the Master to settle the terms of the license, the plaintiff might have perfected the decree and obtained the license, which would have been antedated, and he might then have brought his action at law. In a recent case before the Lord Chancellor of Mundy v. Joliffe,(a) which was a suit for the specific performance of an agreement for a lease, the term agreed to be granted expired before the decree was pronounced, and the Lord Chancellor directed the lease to be antedated in order to give the plaintiff a remedy on the covenants on the very ground that damages could not be obtained in equity. If this had been done in the present case, Woodward would be treated as a mere trespasser, and an action at law would lie against him. As to Bridges, he has received no part of the profits of the stone which has been worked, he is not therefore answerable in this suit. This is not a suit for an account of the profits received by the defendants, but expressly asks for a reference to the Master to ascertain the damage sustained by the plaintiff. The plaintiff is also barred by his acquiescence in granting to Woodward a right of way over his land from the quarry to enable him to work it. *Mr. Pemberton, in reply:-What is now asked on behalf of the plaintiff is merely incidental to the original relief, and which he could not obtain at the first hearing because the facts took place pending the suit and could only have been brought forward by supplemental bill. If these facts had been known at the former hearing the decree would have been for a specific performance of the agree

[*242]

(a) Nov. 5th and Dec. 24th, 1839.

1839.-Nelson v. Bridges.

ment with an inquiry as to the injury sustained up to that time; this case therefore is not like a bill for damages, but is supplemental to the decree pronounced. In a case in which the court entertains jurisdiction, the whole relief must be had here, and a party would not be allowed to obtain part of his remedy here and part in a court of law. In the present case the court has assumed an equitable jurisdiction, and the plaintiff is, therefore, entitled to be recompensed for the loss he has sustained to be ascertained by means of a reference to the Master. If the subject of the agreement had been land, the plaintiff would have been entitled, as of course, to an account of the rents and profits: here the profits are not the rent, but the loss from the abstraction of the stone, which the Master can as easily ascertain. The court frequently refers it to the Master to inquire into the amount of damages, as in Denton v. Stewart ;(a) so in the cases of an alleged trespass by an officer of the court where the court will not permit an action at law to proceed, but refers it to the Master to settle the amount of damages.(b)

THE MASTER OF THE ROLLS-It has already been declared that the plaintiff is entitled to a specific performance of the agreement; but *pending the proceedings, the very subject of the agreement, to which [*243] the plaintiff has by the decree been declared entitled, has been abstracted. The stone, or a quantity of the stone, which the plaintiff had obtained a license to quarry, has actually been taken away by the defendant Wordsworth, so that, while the performance of the agreement has been resisted and delayed by the defendants, they, or one of them at least, has taken away a portion of the very subject matter of the suit, and the plaintiff has been thereby for ever deprived of the full benefit of his contract. If that circumstance had been known at the first hearing, I cannot have the least doubt but that the court would, in the exercise of its jurisdiction, have put in a due course of investigation the question of the amount of compensation which ought to be made to the plaintiff. This matter, it appears, was not brought to the attention of the court at that time, and a supplemental bill is now filed by the plaintiff for the purpose of obtaining compensation.[1] It is said that such compensation might originally have been had at law, or, if not, that at least it might have been obtained at law by perfecting the decree for the specific performance of the agreement in some particular form. I am of opinion that it (a) | Cox, 258.

(b) See Chalie v Pickering, 1 Keen, 749, and the cases there cited.

[1] As to a supplemental bill to carry into effect a decree, see further Hodson v. Ball, 1 Phillips, 177. In that case (p. 180,) Ld. Lyndhust says; "Now there is no doubt of the correctness of that position, [viz. that a supplemental bill may be filed in aid of a decree in order that it may be carried fully into execution,] but the question is, what is the province of a supplemental bill in aid of a decree? I apprehend that a supplemental bill in aid of a decree cannot vary the principle of the decree. Its province is, to carry out the principle of the decree; to give full and complete effect to the decree, as it exists. The instance that is generally given of a supplemen'al bill in aid of a decree is of this description-where there has been a decree to account, but directions have not been sufficiently given as to the manner of accounting, and a further decree is therefore required for the purpose of supplying this defect, that is, of carrying into full effect the original decree."

1839.-Stead v. Nelson.

is not necessary for this court when it has once entertained jurisdiction in a case to resort to that circuitous mode of giving relief;[2] I think, moreover that if this matter had been before the court at the first hearing, it would have been put in a proper train of investigation. Under these circumstances therefore it appears to me that the plaintiff is now entitled to relief, but the form in which that relief is to be given is certainly a matter of very serious consideration. I think that the amount of what is due to the plaintiff' ought to be ascertained by means of an action at law, and I do not clearly see how it can be satisfactorily done in any other way. In this, and perhaps [*244] *in all other cases, the profit made by the defendant is not the measure of the damages done to the plaintiff, for we find that the quarry was not worked in a way to make the most of it; Mr. Bridges, thinking the validity of the license which he had given to Wordsworth to be doubtful, discouraged his working it pending the proceedings, so that Wordsworth took only that stone which it was convenient for him to take and he did not therefore work it in the profitable way in which the plaintiff would have worked it. It appears to me that the defendants are correct when they say that this is a case of damages and not of account, because it is to recover something which cannot be ascertained by taking an account of the profits made,--it is to ascertain the amount of the loss which the plaintiff has sustained by being prevented doing that which it has been declared he was entitled to do. I think the proper mode of assessing the amount of the damage will be to require the defendants to admit such facts as are necessary, and to allow the plaintiff to bring an action to ascertain quantum damnificatus(a).

Freeholds were conveyed by lease and release, to trustees to the use of a feme covert for her separate use for life, or to the use of such person as she should by writing sealed, &c., appoint, and in default of appointment in trust to pay the rents to her for her separate use. The husband and wife by writing not under seal, for valuable consideration, undertook to execute a mortgage of the property when required. The husband died and no mortgage had been executed: Held, that the agreement was binding upon the surviving wife.

On the marriage of Joseph Waterworth with Julia Booth, in November, 1831, a freehold estate was conveyed by lease and release to two trustees and

(a) Extract from Decree :-Decree, that the plaintiff and Bridges do proceed to an action on the following issue, namely, “ What is the amount of the loss and damage sustained by the plaintiff in his trade or business of mason and stone delver, or otherwise, by reason or in consequence of the non-performance and breach by the said defendant of the agreement entered into by him the plaintiff," [stating it, and the defendant was ordered to admit the agreement, that the plaintiff was lawfully possessed and in the occupation of the ground, and was wrongfully turned out of possession by the defendant.

[2] Vide Clarke v. White, 12 Peters, 178. Rathbone v. Warren, 10 Johns. Rep. 595, 596. Howley v. Cramer, 4 Cow. 728.

1839. Stead v. Nelson.

their heirs, "To the use of the said Julia Booth for and during the term of her natural life to and for her own sole and separate use and benefit, or to the use of such person or persons as the said Julia Booth, by writing under her hand and seal, should at any time during her intended coverture direct or appoint; and in default of such direction or appointment, then in trust to pay the rents, issues and profits of the said hereditaments and premises into the proper hands of the said Julia Booth, or otherwise to permit her to receive the same for and during her natural life, to and for her sole and separate use, wholly and independently of the said Joseph Waterworth, and without the same being subject to his debts or engagements; and the receipts of the said Julia Booth alone, notwithstanding her coverture, were thereby declared to be good and sufficient discharges for so much of the said rents and profits as should therein be acknowledged or expressed to be received; and from and after the decease of the said Julia Booth, to the use of the said Joseph Waterworth for life," with remainder to the use of the children of the marriage, with remainder to the use of such persons as Julia Booth should by instru. ment sealed and delivered in the presence of two or more credible witnesses appoint, and in default thereof to the use of her brothers and sisters.

In March, 1833, Joseph Waterworth and Julia his wife borrowed 2501. from a Mr. Marshall, and *thereupon Mr. and Mrs. Stead, by in- [*246] dentures of lease and release and appointment, appointed and released the property in question to Marshall in fee, by way of mortgage, to secure the 250/

In September, 1835, Joseph Waterworth and Julia his wife borrowed 1201. from the plaintiff, for which they gave their joint and several promissory note, and they thereupon signed and delivered to the plaintiff a memorandum, not under seal, whereby they agreed when requested to "appoint, grant, release and convey in mortgage" the property comprised in the settlement unto the plaintiff, his heirs and assigns forever, and that they would enter into all the usual and reasonable mortgage covenants; they also undertook to insure the life of Mrs. Waterworth for the purpose of better securing the 1207.

Mr. Waterworth died in 1836, leaving two children, and his assets were found insufficient to pay his debts. Marshall's debt was, however, paid by means of a policy which had been effected, and the remainder out of Mr. Waterworth's assets.

The plaintiff's debt remaining unpaid, he filed this bill against Mrs. Julia Waterworth, who had married Mr. Nelson, and against her husband, and a second incumbrancer, praying a declaration that he was in equity entitled to a valid mortgage of the property, and that, subject to the interest of the children and by virtue of the memorandum, he was entitled to an equitable lien upon the said property, and for an account and consequential relief.

There was another question, whether the plaintiff's security was entitled to priority over one subsequent *in date of a Mr. Tolson, [*247] who had taken his mortgage with notice of the plaintiff's charge, but who had got in an outstanding term.