might wait to see the result of a trial, &c.; and provision is made for the reimbursement of money paid by the plaintiff, in case the contract should be rescinded: a new right of rescinding arose on the failure of each payment. But the bill does not state any case entitling the plaintiff to relief; he has come too soon. The payment of the consideration by him was a condition precedent, and all the consideration ought to have been paid by January 1842, and the covenant to pay that consideration is an independent covenant on the part of the plaintiff-Lloyd v. Lloyd (1). Mr. Romilly, Mr. James Parker, and Mr. Southgate, in support of the bill.—Where a party, has or bona fide claims to have, an interest in the subject-matter of the suit, there can be no maintenance. Here, the plaintiff has such an interest as second mortgagee, and is jointly interested with the defendants in resisting the claim of George Woodroffe. 1 Hawkins's Pleas of the Crown, sec. 17, pp. 252, 454. Findon v. Parker, 11 Mee. & Wels. 675; s. c. 12 Law J. Rep. (N.s.) Exch. 444. The defendants had waived their right to rescind by receiving the payment of 750l. after the default; and by analogy to the case of landlord and tenant, they have signified their election that the contract shall not be void. Sharp v. Carter, 3 P. Wms. 375. March 8.-WIGRAM, V.C.-In 1816, one William Woodroffe, being in possession of and claiming to be entitled to property in fee simple, charged or affected to charge it, by way of mortgage, with the sum of 10,000l., to which amount the defendants in this suit, or some of them, claim an interest as mortgagees. The bill alleges, that William Woodroffe created other mortgages upon the same lands, which many years since became, and are now, vested in the plaintiff; and according to that, the plaintiff, Mr. Hunter, would be the second mortgagee of the property. The bill then states the death of William Woodroffe, and that thereupon (1) 2 Myl. & Cr. 192; s. c. 5 Law J. Rep. (N.s.) Chanc. 191; 6 Law J. Rep. (N.S.) Chanc. 135. NEW SERIES, XIV.-CHANC. George, the brother of William, entered into the possession of the lands, under some old settlement, claiming by a title paramount to that of his brother William. If George Woodroffe's title is valid, the consequence will be that the mortgages created by William are invalid. Two actions have been tried by the mortgagees for the 10,000l., for the purpose of recovering possession of the property. In one of those actions, the plaintiffs were nonsuited. A second action was brought by the plaintiffs, who were different parties, or they joined some one else, so as to raise a different issue as to the title from what was raised before. The bill states that, upon the trial of that second action, the facts of the case were ordered to be stated in a special case, which was to be turned, if necessary, into a special verdict. This is not yet disposed of. The bill then states that, in July 1837, George Woodroffe filed his bill against the defendants, the object of it being to establish his title paramount. That bill was continued by revivor and supplement. In that state of things, on the 30th November 1841, the agreement in question was entered into by the plaintiff, Mr. Hunter, with the defendants, which agreement it is the object of the present suit to enforce. To this bill a general demurrer for want of equity has been put in. The first ground of demurrer was, that the agreement amounted to champerty, or that it savoured of champerty. The question is not whether, within some of the old definitions of champerty, this agreement bears that character, but whether it amounts to champerty in that sense which at this day is forbidden by law. The bill alleges mortgages created subsequently to that for 10,000l., as having been many years ago assigned to and now vested in the plaintiff. It recites, and the agreement also recites, that the plaintiff has or claims to have an interest in the lands charged with the 10,000l., and that he has proposed to become the purchaser of the defendants' interest in the 10,000l. The charges in this respect might have been much more specific than they are; for the allegation that the mortgages "many years since were assigned to and are now vested in the plaintiff," is not, according to the opinion of some Judges, absolutely inconsistent with the supposition that he may 2 D not have had that interest at the time the agreement was entered into. I do not, strictly speaking, know what a party means by the expression "many years since." But I think, coupling the averment which I first mentioned, that the plaintiff, at the time of the agreement, had some interest in the land, though not so specific as it might have been, there is by reasonable intendment a sufficient averment, that the plaintiff, at the time of the agreement, had the same interest as the defendants in resisting the proceedings which have been instituted by George Woodroffe. The case of Harrington v. Long was relied upon by the defendants, as shewing that this agreement savoured of champerty. I am by no means clear, whether I am to construe Sir J. Leach's opinion in that case as if he were perfectly consistent with what he decided in Hartley v. Russell (2). The plaintiff insisted that the assignment was bona fide made, and that the purchase of the subject-matter of a pending proceeding might be valid, and might be enforced by bill. This is what the plaintiff in this case is attempting to do-he is seeking to enforce the agreement by bill. It may be difficult to understand why the vendor, in whom the legal interest is, and who is trustee for the plaintiff, should not join, so far as the question of champerty is concerned; it is difficult to see why it should be champerty because the party who had assigned his interest pending the suit is joined as plaintiff, and why it should not have been champerty if the plaintiff had filed the bill by himself. The express decision is, that he could not do so. If he might so enforce his agreement, it is difficult to see why he might not indemnify the vendor; and the question was, whether, if there had been no express agreement to indemnify, the Court would not have allowed him to file a bill to avail himself of the object of it. The deed of indemnity is not reported in that case, but from the language of Sir J. Leach, and the argument of the respondents in the appeal, it is clear that was a case in which the deed of indemnity was relied upon, not as shewing a simple case of purchase of an interest, but as shewing that the transaction was entered into for some collateral purpose. Wood v. Downes was the case of a perfect (2) 2 Sim. & Stu. 244; s. c. 3 Law J. Rep. Chanc. 146. stranger buying the supposed right of an other, under circumstances which Lord Eldon thought obliged him to consider the party as the purchaser of a pretended title; but he treated it as the case of a purchaser having no interest whatever in the question. But that is not the case here. The plaintiff is not a stranger. The question upon which the validity of the plaintiff's mortgage depends is precisely the same, namely, whether William Woodroffe had a title. The plaintiff, as the second mortgagee, (for such is the effect of the transaction,) has bought in the first mortgage, pending the suit. He now openly institutes this suit to have the benefit of the existing suit, and of the proceedings therein independently of those in whose place he stands. The question is, whether that was lawful or not? On referring to 1 Hawkins's Pleas of the Crown, p. 456, I find he has a section which he thus heads, "How far they are justifiable," that is, acts of champerty. He goes on to shew in what case it is lawful; and under this head, though it is an act of champerty, he says, cases are not objectionable where there is an equitable interest in the title in dispute. He puts the cases of choses in action and cestuis que trust, and numerous other instances of parties having a direct interest similar to that of parties in this suit, being allowed to maintain or defend the suit. The case of Findon v. Parker appears to me to have been well cited, as bringing down to the present time the principle laid down by Hawkins, that a person having an interest in the subject of the dispute, and acting bona fide in the suit, for it goes as far as this, having or believing that he has an interest, may lawfully assist in the defence of that suit. I, think, therefore, that the case before me is not open to any objection on the ground of champerty. The next point is the question of time. Upon that subject I incline to think, that time would have been of the essence of the contract. Nothing can be more express in words than that time should be of the essence of the contract; and nothing more reasonable than that the parties should have required it. But the question is, whether that stipulation as to time is not waived by the parties in this case. If that question depended upon the general allegation in the bill, that the defendants had waived or abandoned the right to rescind the contract by notice, followed by the words "and in particular by the acceptance of certain payments;" if it depended upon that particular charge, and if the particular matter alleged had not been an act which shewed a waiver, I should have had very little difficulty in following the more modern cases upon that subject. The tendency of all the cases has been to destroy, as far as possible, the great inconvenience of putting in general charges of which the defendant does not know the meaning, nor perhaps the plaintiff general charges of facts which may be perfectly unfounded, and which may involve the defendant in litigation for years; whereas if the facts only were stated, the Court might at once dispose of the case. The cases of Hardman v. Ellames (3), Walburne v. Ingilby (4), and the cases cited yesterday by Mr. Rolt, shew this to be the correct proposition. The rule, as I understand it, is, that it is not a mere charge of fraud, or of notice, or any general allegation that will suffice, but the party must put upon the record the case which he relies upon, so that the Court can fairly see what is the case to be relied upon. If the bill had charged that the party had waived or abandoned the right, and had said that he had done it by this act or that act, and otherwise, but not explaining what "otherwise" meant, I should have followed those other cases, and should have thought myself safe in applying them to this case. But I think the matter alleged is a waiver of the right. I will admit that each breach on the part of the plaintiff in the non-payment of money was a new breach of the agreement, and time being of the essence of the contract, each breach gave the defendants a right to rescind; but the moment the breach occurred, the defendants were not at liberty to treat the agreement as still subsisting, and to take the benefit of it at the expense of the plaintiff, if they meant to insist that it was at an end. They were at liberty to rescind it, but were not imperatively bound to do so. There is no stronger reason for holding that the forfeiture of a lease is waived by the acceptance of rent subsequently accruing, (3) 2 Myl. & K. 732; s. c. 3 Law J. Rep. (N.S.) Chanc. 74. 21. (4) 1 Ibid.61; s. c. 3 Law J. Rep. (N.s.) Chanc. than there is in this case for holding that the acceptance of an instalment of purchasemoney, which was not due unless the agreement was to be continued, is a waiver of the right to rescind it. The defendants had no right to accept the money, except upon the principle that the agreement was subsisting. The only question then is, whether the payments made to Messrs. Currie & Woodgate are to be considered as having been made to the defendants; the allegation being that it was paid to them as their agents. Now, the allegation upon that subject is this: the bill, after stating the agreement to pay, and that various payments were actually made, contains this allegation, "That the said Messrs. Currie & Co. in the several transactions herein mentioned and referred to were, and acted as the solicitors and agents of the several defendants." Then it goes on to insist that they waived the right to rescind the agreement by the acceptance by their solicitors and agents of the sum of 7251. on the 11th of June 1842; that date being long after the last preceding payment. It is impossible not to consider that as a sufficient affirmative, that Messrs. Currie were agents of the parties for the purpose of receiving the money. receiving the money. The only remaining point insisted upon was, that each payment was a condition precedent to the right of Hunter to call for the execution of the deed, or in fact to call for the benefit of the agreement with the defendants. It was argued that the bill could not properly be filed before the plaintiff had out of court performed his part of the agreement. The general rule in equity is not certainly of that strict character. A party filing a bill submits to do everything that is required of him, and the practice of the Court is not to require of the party to make a formal tender-it is said he does it by filing his bill,—at all events, in a case like this, where from the facts stated in the bill or from the evidence, it appears that the tender must have been a mere form, and the party would have refused the money. The defendants, according to the allegation in the bill, insist that the agreement is altogether void, and therefore the plaintiff is at liberty to contend that the offer would have been a mere form, unattended with any benefit. It appears to me that the bill is sustainable, and the demurrer must be overruled. Articles of Separation-Jurisdiction of Equity to enforce such Articles—Consideration-Indemnity against the Wife's Debts. Upon a bill filed by a married woman, for specific performance of articles of separation, containing clauses providing an annuity for the husband, and declaring that all proceedings in an ecclesiastical suit instituted by the wife against her husband should be suspended: it was objected by the husband, that articles of separation were contrary to public policy, and could not be enforced in equity, and that for want of a covenant by the trustees to indemnify the husband against his wife's debts, there was no sufficient consideration to support such articles:-Held, that courts of equity had power to enforce articles of separation; that in this case there was nothing opposed to public policy, and that there was sufficient consideration without a covenant to indemnify the husband against his wife's debts. The bill in this case stated, that in the month of April 1839, a marriage was solemnized between the plaintiff (then Mary Wright Wilson,) spinster, and the defendant, John Wright Henniker Wilson, then John Wright Henniker; that previously to and at the time of such marriage, the plaintiff was entitled under the will of Lady Frances Wright Wilson, deceased, to a certain freehold estate, called "Drayton Lodge," situate in the county of Southampton, and that she was also entitled, under the will of Sir Henry Wright Wilson, deceased, for her life, with remainder to her children and issue, to certain freehold estates in the county of York, and a small real estate in the county of Essex, and to certain leasehold hereditaments, situate in the parish of Chelsea, called the "Chelsea Park Estate," and also to a certain leasehold house in Grosvenor Place, and to monies in the public funds. That previously to such marriage between the plaintiff, M. W. H. Wilson, and the defendant, an indenture of settlement was executed, dated the 27th of April 1839, whereby it was amongst other things recited, that all the property of the plaintiff, M. W. H. Wilson, except the said "Drayton Lodge " estate, and the said "Chelsea Park estate,' and 3,000l. consolidated annuities therein mentioned, should after the solemnization of the said intended marriage belong to the said defendant in his marital right, and the said Drayton Lodge estate was settled to the separate use of the plaintiff, Mary Wilson, and the said Chelsea Park estate was assigned to trustees, for the residue of the several terms of years subsisting therein, upon trust for the said defendant during his life, and, after his decease, in trust for the plaintiff, Mary Wilson, during her life, and, after her decease, in trust for the said defendant, his heirs, executors, administrators or assigns. That soon after the marriage, unhappy differences arose between the plaintiff, Mary Wilson, and the defendant, and on the 8th of May 1843, the plaintiff instituted proceedings in the Ecclesiastical Court, for nullity of marriage against the defendant, on the ground of impotency. That on the next day after the service of the citation (the 9th of May 1843), the said defendant called on the plaintiff, William Carr Foster, the next friend of Mary Wilson, and expressed his anxiety that no further steps should be taken in the Ecclesiastical Court, and that an amicable arrangement should be come to, and he expressed himself to be desirous to execute a proper deed of separation, and to give up to the plaintiff, Mary Wilson, the interest which he took under the said marriage settlement, in the aforesaid estates, in consideration of his being allowed an annuity of 1,500l. per annum. That such proposal of the said defendant was refused by the plaintiff, Mary Wilson, and her legal advisers, but ultimately certain articles of agreement were executed on the 2nd of June 1843, between J. W. H. Wilson, of the first part, Mary Wilson, of the second part, and Nathan Wetherell and William Carr Foster, of the third part, whereby the said defendant, J. W. H. Wilson, on the one part, and the said defendants, Nathan Wetherell and W. C. Foster, on the other part, covenanted amongst other things, that the said J. W. H. Wilson would at all times thereafter permit the said Mary Wilson to live separate and apart from him; that the estates in settle ment should be vested in the trustees of the settlement, in trust, for the separate use of the said Mary Wilson, during the joint lives of herself and the said J. W. H. Wilson; that if and so long as the said J. W. H. Wilson should duly observe and perform the covenants and agreements therein contained, all the rents, taxes, rates, tithes, and other outgoings, in respect of the said several estates respectively, and also all expenses of common and ordinary repairs and insurance of or upon the same, and all the lessee's covenants in respect of the said leasehold estates respectively, should from and after the 24th of June instant, be duly paid, performed and satisfied by the said Mary Wilson, during her life, and that he, the said J. W. H. Wilson, his heirs, executors and administrators, and his and their estate and effects, should be indemnified therefrom, and from all present debts and liabilities of the said J. W. H. Wilson, by the joint and several covenants of the said N. Wetherell and W. C. Foster; that if and so long as the said J. W. H. Wilson should duly observe and perform the covenants and agreements therein contained, a clear annuity of 1,000l. should be paid to him during the joint lives of himself and the said Mary Wilson, and that the said annuity should be charged upon the freehold estates in the county of York, which belonged to the said Mary Wilson; that a proper deed or deeds for effectuating the objects of the said articles, and containing all such covenants, agreements, clauses and provisions as should be deemed expedient for that purpose, should be executed by all parties. Provision was then made for preparing and settling the deed, and for enforcing the execution thereof. And it was lastly agreed, that upon the execution of the said agreement by the said J. W. H. Wilson, the proceedings which had been instituted against him in the Ecclesiastical Court by the said Mary Wilson should be suspended, and upon the execution of the deed or deeds to be so prepared as aforesaid, should be put an end to and withdrawn; but nevertheless without prejudice to the right of the said Mary Wilson to institute any other proceedings against him, the said J. W. H. Wilson, in case he should make default in the observance and performance of any of the covenants and agreements therein contained. That upon the execution of the said articles of agreement, all proceedings in the Ecclesiastical Court against the said defendant, J. W. H. Wilson, were stayed. The conveyancer's draft so covenanted to be executed was examined, and alterations suggested by the defendant (who was a barrister), and the engrossment was compared by him with the draft. The deed, however, was found after execution to be defective in one particular-viz. that the covenant of indemnity by the trustees against the debts of the wife contained only the word "present" before "debts," and the name of the husband was also erroneously inserted in the clause instead of the wife's; the indemnity, therefore, appeared to be, in fact, against the present debts of the husband. Mr. Wilson repudiated these articles : his wife and her trustees thereupon filed the present bill against him, praying the Court, "That the said J. W. H. Wilson might be ordered specifically to perform the said articles of agreement on his part; the plaintiffs respectively offering to perform the same in all respects on their parts, subject to the correction of the clerical error, and that the said defendant might be decreed to execute such deed as the Court should approve of, for the purpose of effectuating the objects and carrying into operation the true intent and meaning of the said articles, the plaintiffs submitting to execute such deed on their parts, and in particular, the plaintiffs submitted to covenant thereby jointly and severally in such manner as the Court should direct, with the said defendant, to indemnify him and his estate and effects against all and singular the debts and liabilities, both present and future, of the plaintiff, Mary Wilson. By the answer of the defendant, filed the 17th of November 1843, it was alleged, that the articles of separation had been obtained from the defendant by fraud and intimidation, and under pressure of the terror, degradation, and ridicule which the charge of impotency would draw upon him, and to induce him to give up the benefits he had acquired under the marriage settlement, the plaintiff knowing at the time that the charge was without foundation. The defendant also filed a cross bill, containing similar allegations, and denying |