argument, in support of the demurrers for want of equity, proceeded on the following grounds: First, that the bill was deficient in all the essential ingredients of a bill for specific performance; for it sought relief, not in conformity, but at variance with the agreement; there was no offer or submission to perform on the plaintiff's part, and therefore no mutuality; and the time of performance, which, in trading concerns, was of the essence of the contract, had long passed. Secondly, that the three agreements under seal, constituted one contract, the intention, meaning, and effect of which was to be ascertained from the contract itself; that this contract was with the three persons only, and no subsequent conduct could extend the liabilities under it to other persons; that the plaintiff, in fact, had always treated the three contractors as the parties liable, and brought actions, and filed his bill for specific performance against them; that the plaintiff could not insist upon an agreement making the three contractors separately liable, and also making, as principals, the company generally, and their estates, liable. Thirdly, the circumstance of the company having taken possession, was no foundation for any equity at variance with the contract. It was according to the contract, and entitled the plaintiff to the 16,250l. for interest, which he for some years had received, and the remainder of which he claimed. The working of mines by the company did not vary the case; such working was essential to any useful or profitable possession: it was not to be supposed that they contracted for 16,2501. for the profits of the surface of a few acres of barren land. Fourthly, the plaintiff was in the situation of an equitable mortgagee, with the right to call for a sale, by giving six months' notice. The purchasers might have given up possession, and the interest of 16,250l. a year would have ceased, if the plaintiff had given this notice. If, after such a notice, the defendants had continued working the mines, there might have been some colour for requiring such an account. In the absence of any notice under the contract, the plaintiff, at the most, was a mortgagee out of possession, who could not have an account of past rents and profits. Fifthly, the claim to the benefit of any NEW SERIES, VIII.-CHANC. indemnity given to the contractors by the company was wholly unprecedented. There was no privity between the plaintiff and the indemnifying parties. There were no circumstances here which could entitle A. to the benefit of a contract made between B. and C. Sixthly, even if any equity could arise on such facts, the present suit was premature. The contract had provided, that the plaintiff should give notice to the purchasers, in order to make available the security reserved to him. If he had taken the steps thus pointed out, and they had proved ineffectual, or his proceedings had been obstructed, that would have been time enough to apply to a court of equity. He had filed this bill without taking any of the proper or prescribed steps. The other grounds of demurrer were, first, that the bill, stating a petition pending in the Exchequer for the same matters, raised a case in which the plaintiff was bound to elect in which court he would proceed. Secondly, that the bill was multifarious, as asking relief against some defendants in which the others were unconcerned; an objection, which, it was insisted, might be taken even by the defendants, against whom the bill could otherwise be sustained. Thirdly, that the bill was defective for want of parties: in one view, supposing it to be rightly instituted against the former directors, Morice, one of them, being dead, his personal representative was a necessary party; in another view, supposing it properly brought against the directors as sufficiently representing the company, then the present. directors must be parties; and, in a third view, supposing it could be sustained against the company, that all the members were necessary parties. The following authorities were cited on the questions of parties and multifarious ness: Cawthorne v. Chalie, 2 Sim. & Stu. 127; s. c. 3 Law J. Rep. Chanc. 125. Long v. Yonge, 2 Sim. 369, 387. Newton v. the Earl of Egmont, 5 Sim. 130, 137. Evans v. Stokes, 1 Keen, 24; s. c. 5 Law J. Rep. (N.S.) Chanc. 129. Saxton v. Davis, 18 Ves. 72, 80. And on the other points raised in the argument: X Browne v. Poyntz, 3 Mad. 24. on the faith that the contract would be ful Cockerell v. Cholmeley, 1 Russ. & Myl. filled; and at that time the estate was an 418, 423. Doloret v. Rothschild, 1 Sim. & Stu. 590; s. c. 2 Law J. Rep. Chanc. 125. Worrall v. Harford, 8 Ves. 4. Withy v. Cottle, 1 Sim. & Stu. 174; s. c. Turn. & Russ. 78; 1 Law J. Rep. Chanc. 117. Coslake v. Till, 1 Russ. 376. Wright v. Howard, 1 Sim. & Stu. 190; s. c. 1 Law J. Rep. Chanc. 94. Parker v. Frith, Id. n. 199. Clowes v. Higginson, 1 Ves. & Bea. 524, 533. Cook v. Martyn, 2 Atk. 2. Palk v. Mr. Wakefield and Mr. Lovat, for the plaintiff. The equity which is insisted upon, arises out of the contract, and the conduct of the defendants subsequent to it. The first consequence of the contract was, that the vendor became a trustee of the estate for the purchaser, and the purchaser a trustee of the purchase-money for the vendor. This involves a duty far different from that which belongs to the character of a simple contract debtor: it is not merely a change of name. One term of the contract was, that the plaintiff should convey to trustees, to be named by the purchasers. These trustees were to secure the purchase-money to the plaintiff; they have never been named; and, therefore, the power of sale could not be exercised, and no notice was necessary. The agreement of November is only a release of the personal responsibility of the contractors, by reason of having signed the contract-not exonerating them from their liabilities jointly with the other members of the company: it may limit the plaintiff's remedy, but it does not affect the obligation to pay him. It precludes the plaintiff from bringing an action, or filing a bill against the three contractors personally, and provides that he shall resort to the estate if necessary, but it does not compel him to resort to the estate in the first instance. This agreement also was made ample security. If the purchasers are trustees, they who take from them with notice of the trust, are also trustees. It is plain, that the company have taken all the interest which the purchasers had, with notice of all their engagements as to this subject. The letters shew that the money was to come from them; and that their original bill against the plaintiff, was only a scheme to ward off the necessity of payment. The bill then filed by the plaintiff against the purchasers, was equivalent to the six months' notice, or any other notice he was bound to give. The answer of J. Taylor admitted that he signed as managing director, and the proceedings in the former suit against the plaintiff, throughout treated the directors and the company as the purchasers. The dismissal of the plaintiff's former bill is unimportant: the oppressive conduct of the company left him no alternative; they had the estate, the purchasemoney, and the interest. No case of election arises. Nothing is sought by this bill which is asked by the petition in the Exchequer. The company had no power to continue working the mines after filing their original bill; they, however, open new pits, and raise coal and iron to the value of 270,000l., whilst the plaintiff could exercise no powers reserved to him; he could not enter and sell the estate, for no one would purchase pending such a suit: a notice under such circumstances would have been absurd. The possession of the company under the agreement ceased, when they acted in breach of it, and certainly when they disclaimed it. Conduct may create a liability independent of contract. The remedy may be lost at law, and equity supplies it; or if not lost at law, the injury done may create a liability which equity will enforce. Enough appears to render the question as to the liability of the defendants and the company, a matter of grave inquiry; the overruling of the demurrer will not establish that liability, while, on the other hand, if the demurrer be allowed, it is a declaration that the liability cannot exist. Multifariousness is the term applied to two different grounds of objection: first, that distinct matters are blended in the same suit, which is an objection a defendant may properly urge; and secondly, that though the subject be single, yet that the bill seeks relief against defendants unconnected with each other, which is an objection not properly available by any particular defendant, however it may be open to the consideration of the Court. As to the question of parties, the first objection. is the want of a representative of Morice. In the case of Cawthorne v. Chalie, cited on this point, no injunction was sought, and no pressing necessity existed for immediate proceedings. The time which necessarily intervenes before a stranger can obtain representation to a deceased party, must render it, in injunction cases, where immediate interposition is required, impossible to bring representatives before the Court, until irreparable mischief has been sustained. Such is the case here. As to the absence of the directors chosen in 1826, and the other members of the company, the defendants, who were plaintiffs in the supplemental bill, filed that bill without making the new directors parties; but the question is, are there not a sufficient number of members present to represent and protect the interests of those who are absent? and whether the parties having the legal estate in the property sought to be affected, are before the Court? Where this is the case, the objection for want of parties is not sustainable. The number of defendants to this bill may be greater than is required, but in this respect the Court will not limit the reasonable discretion of the plaintiff. As to parties and multifariousness, the following cases were cited: The City of London v. Richmond, 2 Vern. Meux v. Maltby, 2 Swanst. 277. s. c. 6 Law J. Rep. (N.s.) Chanc. 73. And on the other questions raised by the bill, and in argument,— Green v. Smith, 1 Atk. 572. Dict. 1 Sch. & Lef. 429, 436, 441, Wright v. Morley, 11 Ves. 12, 22. Antrobus v. Davidson, 3 Mer. 569, 576. Brown v. Newall, 2 Myl. & Cr. 558, 572; s. c. 6 Law J. Rep. (N.s.) Ch.348. Beaumont v. Boultbee, 5 Ves. 495. Wilkinson v. Beal, 4 Mad. 408. Upon the first question, it appears to me quite plain, that the plaintiff is entitled to some relief in the nature of specific performance of the agreements, against Small, Shears, and John Taylor; for there is no objection to the agreements on the face of them, nor, from what appears in the bill, is there anything to affect them; and they have been partly performed by the purchasers taking possession, and partly paying the purchase-money. The objection made, that six months' notice has not been given, is no objection to giving some relief, but is only applicable to the mode of dealing with the trust to be created in pursuance of the agreements. Therefore one Small, Shears, and John Taylor, namely, ground for supporting the demurrer by the general want of equity, fails. The second question is, can the plaintiff have relief beyond the specific performance, against the original purchasers? Merely by virtue of the agreements, the plaintiff is not entitled to relief against any other person than the purchasers: upon the ground of conduct only can the plaintiff have relief against any of those other persons. But, if he is not entitled to ulterior relief against the purchasers in respect of their personal liability, grounded upon conduct, he cannot be entitled to relief against any other persons. The purchasers were three of the trustees; and they, and the two other trustees, and eleven other persons, were the directors; and the conduct of the directors and of their superintending agent, Philip Taylor, is, in effect, the conduct of the purchasers. The case before me is a case in which the plaintiff expressly contracted not to have the personal liability of the purchasers, except in the limited case of their being in possession, in which case the purchasers were to be liable for the interest on the remaining instalments of the purchase-money. The plaintiff acted upon that; and, after he had given up possession to them, brought actions against them for interest, and recovered. At the time the actions were brought, the company were in possession, and it was a possession derived from the purchasers, and, therefore, it was their possession, both in the view which they, as well as the plaintiff, entertained, and in the view which courts, both of law and equity, took of the matter. It appears, that the plaintiff, by his cross bill in the Exchequer, prayed a receiver; but it does not appear that he ever applied for a receiver. contract was completely acknowledged by both parties, except so far as an attempt was made to get rid of it, on the ground of fraud upon the purchasers. Mr. Wakefield, in arguing not only that the purchasers were, by reason of conduct, liable beyond their liability on the agreement, but that, by reason of conduct, the directors, and their agent, and the company, were liable, referred to the passage in Hanson v. Gardiner"This principle operated, that, unless there was some jurisdiction to prevent it, there would be a great failure of justice in the country." That observation was made with reference to the case of trespass, where irreparable damage is the consequence, but has no reference to a case where a party chooses to contract to give up certain remedies, or expose himself to The certain inconveniences. Mr. Wakefield next referred to passages in Pulteney v. Warren-"If there be a principle upon which courts of justice ought to act without scruple, it is this, to relieve parties against that injustice occasioned by its own acts or oversights, at the instance of the party against whom the relief is sought," and what follows. All these observations were made with reference to a case, where Dr. Warren, the tenant, had, first by his application at law in ejectment against him by the reversioner, and afterwards by bill in equity, restrained the reversioner from taking possession: and Lord Eldon held, that the executors of Warren were liable to account for the mesne profits. In page 93, Lord Eldon says, "The equity as to all of them (i. e. Dr. Warren and the other tenants) arises from their joint act operating to prevent the plaintiff from having that redress. at law, which, in all moral probability, he would have had if this Court had not interfered, and which, in all moral justice, he ought to have had." Reference was also made to a case, where the obligor on a bond has obtained an injunction against the obligee, and where a mortgagee continues in possession after he has been satisfied his principal and interest; in which cases equity gives relief against the wrongful act of the obligor and mortgagee. But, in what way does the proceeding of the purchasers in the Exchequer prevent the plaintiff from having any remedy for the recovery of the unpaid purchase-money, which he might have had, or chose to have consistently with the agreements? By the agreements, after payment of the 225,000l., which was paid on giving possession, 50,000l. was to be paid on the 15th of April 1826, 100,000l. on the 15th of October 1826, 100,000l. on the 15th of April 1827, and 75,000l. was to be left on mortgage for fourteen years from the 15th of October 1827. It does not precisely appear when possession was given up by the plaintiff; but it seems to have been soon after the 4th of November 1825. The original bill in the Exchequer was filed on the 27th of June 1826, the cross bill on the 12th of July 1827. Before that day, the company had raised upwards of 120,000 tons of coal, upwards of 60,000 tons of iron-stone, and cut the greater part of the timber and timber trees on the estate. The letter from John Taylor to Attwood, of the 29th of November 1825, apprised him that the company meant to pay him out of their returns-i. e. the proceeds from Corngreaves; and the letters of the 8th and 13th of April 1826 shew, that the plaintiff consented to postpone payment of the instalment of 50,000l., which was due on the 15th of April 1826. The half-yearly payments of 8,1257. due on the 1st of October 1826, the 1st of April 1827, the 1st of October 1827, and the 1st of April 1828, were paid, in consequence of the actions brought by the plaintiff. One was defended and tried in 1827, when the plaintiff recovered a verdict for two payments then due in October 1826 and April 1827. There were, therefore, at least, two actions, and there might have been three. Another action was brought for the half-yearly payment due in October 1828, in consequence of which the order of the 28th of February 1829 was made for an injunction on the terms of bringing the money into court. There was no appeal from that order, and the money was paid into court, and the plaintiff has received, or may receive it. By bringing actions at law for the interest, the plaintiff admitted the right of the purchasers to be in possession; he did not bring any action of ejectment against them, as he might have done quite consistently with the purchaser's bill, and, as I think, consistently with the cross bill for specific performance. But, if the ejectment had been inconsistent with his cross bill, it could only have been so, because the purchasers under the agreements had a right in equity to keep possession. The plaintiff, in his cross suit, did not apply for a receiver and manager, but was content that the purchasers should be in possession for their own benefit. He did not even choose to have a specific performance of the agreements, but dismissed his cross bill voluntarily though the reasonable inference is, that if he had brought it to a hearing, and the Court had dismissed it, as probably the Court would have done, the House of Lords would, upon appeal, have reversed the decree of dismissal, and have decreed a specific performance. The plaintiff virtually puts his remedy beyond mere specific performance, upon this, that great part of the minerals on the property sold has been obtained by the wrongful act of the company, and thereby the plaintiff's security has been greatly diminished: but the answer is, that the plaintiff chose it should be so, in order that he might have the halfyearly payments of 8,1257. There was no new agreement when the plaintiff gave up possession, that he should have any other security than that which, at the time, was provided by the agreements. He says, he gave up possession on the faith and confidence, that the remaining instalments would be duly paid; but he does not state that any new agreement, verbal or otherwise, was then made. The letters of the 8th, 12th, and 13th of April 1826, shew, that the plaintiff knew that further security was refused: and the truth is, that the agreements suppose that possession might continue with the purchasers, and the principal sum of 325,000l. remain unpaid, long after the time for payment of it had passed; and of course, if the purchasers were in possession for their own benefit, they could only be so by working the minerals and exhausting the mines. I am of opinion, therefore, that, upon the ground of conduct no relief can be had against Small, Shears, and John Taylor; and à fortiori against the other directors, or their agents, or the company. The consequence is, that the demurrer of Baily and others, and the demurrer of Burton and others, must be allowed with costs. though no relief can be given against Small, Shears, and John Taylor, on account of conduct, yet, as some relief can be given against them in the way of specific performance, their demurrer must be overruled. But, In my view of the case, all that is stated in the bill about conduct is mere surplusage, and it is not necessary to decide upon any other grounds raised by the demurrer of the purchasers, except the want of equity save only that for the purpose of costs, I must advert to one ground-namely, the absence of a personal representative of John Morice, which, I think, would have been a good ground for demurrer, if the case of conduct had been sustained; and, therefore, the demurrer of Small, Shears, and Taylor must be overruled, without costs. |