1844. HARVEY v. MOUNT. Under these circumstances the present motion was made. Mr. Turner and Mr. Goodeve, in support of the mo tion. Mr. Kindersley and Mr. E. F. Smith, contrà, contended, that the motion was irregular; First, because, according to the established practice, the Plaintiff ought to have exhibited articles to discredit the witness previous to his making this application, in order that the Defendant might have notice of the grounds of objection to his witness. 2 Daniell's Pr. (a), Hinde's Pr. (b), Lord Clarendon's Orders. (c) Secondly, because the affidavit itself ought to have been produced to the witness at the time of her examination, in order that she might have an opportunity of explaining it. Phil. on Ev. (d) And thirdly, because voluntary affidavits being prohibited by the 5 & 6 W. 4. c. 62. s. 13., the proceeding was illegal; Regina v. Nott (e); and because it was also highly improper for the Plaintiff's solicitor to attempt to fix the witness to a particular statement, so as to prevent her being free and unfettered, when she afterwards came to be examined by the proper officer of the Court. They insisted that the Plaintiff ought not to be permitted to avail himself of the affidavit thus improperly obtained. (a) Page 594. (b) Pages 374. 377. and 1 (d) 8th ed. p. 925. 929. Wood Wood v. Hammerton (a), Purcell v. M'Namara (b), White v. Fussell (c), and Piggott v. Croxhall (d), were also cited. 1844. HARVEY v. MOUNT. This motion was objected to on three grounds: First. For irregularity, because the motion is made for leave to exhibit interrogatories before any articles or objections to the credit of the witness have been filed. Secondly, because the Plaintiff's solicitor did not, as it is alleged he ought to have done, cause the affidavit to be produced to the witness at the time she was under examination. Thirdly, because the Plaintiff ought not to be allowed to found any proceeding on the affidavit, or to use the affidavit for any purpose whatever, inasmuch as it was a highly improper act, and even a legal offence, to procure that affidavit to be sworn. As to the first objection, it appears to me that, on such a proceeding as this, the more usual and regular proceeding is, first, to file the articles or objections to the credit of the witness, and then to apply to the Court for leave to file the interrogatories; but the order for leave to examine witnesses to the credit of other witnesses has not been uniform; it has sometimes been granted on an allegation that the articles had been exhibited, sometimes on articles to be exhibited; and in the cases of Purcell v. M'Namara (b) and Wood v. Hammerton (a), Lord 1844. HARVEY v. MOUNT. Lord Eldon appears to have made orders that the party applying should have leave to file articles, and to exhibit interrogatories in support of them. I cannot consider a motion, which, in its form, is so sanctioned by the authority of Lord Eldon, to be irregular. As to the second objection, although, if the witness had been orally and publicly examined, the affidavit ought to have been produced to her, yet, having regard to the mode of examination in this Court, I cannot consider it to be an objection to this application that the Plaintiff did not cause the affidavit to be produced to her, and did not cross-examine her on the subject of it. I have had much more doubt upon the third objec tion. I think that the conduct of the Plaintiff's solicitor in procuring the witness to swear the affidavit was highly improper; it seems like an attempt to entangle the conscience of the witness, and to fix her to the impression she might have at the time, and upon which the solicitor himself might have had considerable influence, and prevent her from speaking the truth, if it differed from that impression, when she came to be properly and regularly examined, in circumstances free from all influence. Considering the circumstances under which the affidavit was made, it may well be doubted whether, after the establishment of a variance between the statements which the affidavit contains, and the statements contained in the depositions, there may not be a much greater probability in favour of the truth of the depositions. Nevertheless, I think that the fact of difference ought to be brought before the Court for consideration at the hearing; and for that purpose, that I ought to grant this motion, giving leave to the Plaintiff to examine witnesses as to the credit of Charlotte Sangwell, and as to the fact of her having sworn the affidavit; and I think that I ought, ought, at the same time, to give leave to the Defendant to examine witnesses to support her credit, and as to the circumstances under which the affidavit was sworn, but neither party is to examine any witness as to any fact which is material to what is in issue in the cause. 1844. HARVEY V. MOUNT. THIS NOUAILLE v. FLIGHT. HIS case came on upon exceptions to the Master's report in favour of the Plaintiffs' title to the leasehold estate, which the Defendant had agreed to purchase. The bill was filed for the specific performance of this agreement, and the circumstances which gave rise to the suit were as follows: In April 1789, Lewis Preston agreed with Temple West, to take a lease or leases of the land in question for ninety-two years and three quarters, from Christmas 1789, for the purpose of building thereon fifty messuages or dwelling-houses. An indenture of lease, dated the 20th of June 1792, was executed by and between Temple West of the one part, and Lewis Preston of the other part, and thereby, after reciting the agreement of April 1789; and that Lewis Preston, pursuant to his agreement, had built sixteen, part of the fifty dwelling-houses, and was desirous that June 1. July 31. A lessee co venanted to build thirtytional houses on the deperty within mised pro four addi five years, to keep in repair the houses built and to be built, and at the end of the term to deliver them up to the lessor; and there was a proviso for re-entry on non-perform ance of the covenants. tional houses were not built, but for fortyyears the lessor re The addi six ceived the rent, and thus waived the obligation to build. The leasehold interest being sold; Held, first, that the covenant to deliver up extended to the additional houses, as well as to the houses built at the date of the demise; secondly, that the title was bad, notwithstanding the purchaser might retain possession until the last day of the term, and then escape liability by transferring that day to a pauper; and thirdly, that the purchaser was not bound to accept either a compensation or indemnity. 1844. NOUAILLE v. FLIGHT. that a proper lease should be granted of the ground with the new buildings thereon: it was witnessed, that in consideration of the expense which Lewis Preston had been at in erecting the buildings then built on part of the said ground, and also in consideration of the expense which he would be at, in erecting thirty-four additional dwelling-houses on other part of the same piece of ground, and in consideration of the rents. and covenants therein contained, the said Temple West demised to Preston, all the piece of ground therein described, together with the dwelling-houses built and to be built thereon: to hold the same for eighty-nine years and a half, from Lady-day then last, yielding the rents therein mentioned, which Preston covenanted to pay. Preston, amongst other things, covenanted, that he would, within the first five years of the term, build and finish thirty-four additional dwelling-houses, to make fifty in the whole, he having already built sixteen conformable to the design therein referred to; and also that he would, during the term, well and sufficiently repair the houses then standing upon the ground, or thereafter to be erected thereon with their appurtenances, and all walls and buildings with the appurtenances; and all the premises thereby demised, so well and sufficiently repaired, would, at the end or other sooner determination of the term, peaceably and quietly deliver up to Temple West or his representative. The lease contained a clause, enabling Temple West to re-enter on the demised premises, in case Lewis Preston should do, or omit to do any act in breach or non-performance of all or any of his covenants. The Plaintiffs became entitled to the leasehold interest, as assignees of Children and Woodgate, who became |