The Solicitor General and Mr. Shapter, for the petitioners.-The delay in making out their title in this case proceeded wholly from the vendors, and therefore they cannot avail themselves of the fifth condition of sale. The purchaser was bound by the practice of the Court, to pay in the balance of his purchase-money and interest. Denning v. Henderson, 17 Law J. Rep. (N.S.) Chanc. 8. Greenwood v. Churchill, 8 Beav. 413; s. c. 14 Law J. Rep. (N.s.) Chanc. 143. The Mr. Rolt and Mr. Greene, for the plaintiff, submitted that there had been no wilful default or fraud on the part of the vendors. A fair and bona fide abstract, consisting of 180 sheets, had been delivered within three days from the written application of the purchaser's solicitors. fifth condition threw the loss, if any, upon the purchaser. The delay might have given rise to a question of waiver of the contract, but not of compensation. There was nothing upon which the value of compensation or amount of loss could be appreciated or estimated, except the interest; but the interest had been provided for by the conditions of sale. The Court would not send a reference to the Master, unless it was satisfied that there had been a case of wilful default or fraud on the part of the vendors. Oxenden v. Lord Falmouth, Sugd. Vend. and Purch. 807 and 826, 11th ed. Esdaile v. Stephenson, 1 Sim. & S. 122. Mr. Wood and Mr. Follett, for some of the defendants, also argued that the purchaser should have applied to rescind the contract on the non-delivery of the abstract. The Court would not make a new contract for him. Mr. Gaselee, for other defendants, asked that their costs might be provided for, either by the plaintiffs or the petitioners. The Solicitor General in reply insisted upon the misconduct of the plaintiffs in carrying out the contract. The delivery of an abstract meant the delivery of a perfect abstract. Hobson v. Bell, 2 Beav. 17; s. c. 8 Law NEW SERIES, XVIII.-CHANC. Morley v. Cook, 2 Hare, 106; s. c. 12 Law J. Rep. (N.s.) Chanc. 136. The WIGRAM, V.C.-The question in this case is one of considerable importance, and I regret that I cannot grant the relief asked. If the petitioners are not now entitled to that relief, they must have been able at an earlier stage to have obtained it, and thereby avoided the present damage; for the vendors who have stipulated for interest in case of delay, cannot by delaying the completion of the sale take advantage of their wrongful act, unless indeed the contract is so strong that there is no escape. Court cannot give relief in this case, unless there is ground for an action at law for breach of contract, after the contract has been completed, with notice of the breach. The present question is, not whether the purchaser before completing the contract might not have refused to proceed, when the vendors broke the seventh condition of sale; but the question is, whether he can in this case sustain an action for damages against the vendors for such breach. I apprehend that he could not. The circumstances of this case do not take it out of the general rule. The solicitors of the vendors are informed by a letter from the solicitors of the purchaser, that the latter will demand compensation. answer is sent to this letter; but the silence of the vendors cannot be treated as equivalent to an agreement, that they will submit to the purchaser's demand. Again, by the terms of the order for paying the balance of the purchase-money into court, it appears that the purchaser by his counsel declared himself content with the title; the conveyance is subsequently executed; and he still insists upon retaining his purchase. The Court could not, therefore, say that he would be entitled to a right of compensation, if the completion of the purchase, under ordinary circumstances, would have deprived him of that right. But the Court is bound by those cases which decide that in conditions where interest is to be paid in case of delay, from any cause whatever, the acts of vendors are included in those causes. It is matter of opinion, whether the sounder construction would not have been to have excepted the default Y No Passing Orders of course without NoticeVarying Order ex parte-Costs-Payment in lieu of Security. Orders of course correctly drawn up may be passed without notice to the other side. An order may be varied in the discretion of the Court, on motion ex parte, if the variation will not be less beneficial to all parties than the terms of the original order. Therefore, where a plaintiff who had obtained an order for leave to amend by striking out the name of a co-plaintiff upon paying the costs of the motion and giving security for the costs already incurred, afterwards obtained leave, on motion ex parte, to vary the terms of the order by substituting payment for security, and passed such varied order without notice to the defendants, a motion by the latter to discharge the last-mentioned order was refused, and, under the circumstances, with costs. The particulars of this application are stated in the Vice Chancellor's judgment. Mr. Wood and Mr. Daniel appeared for the defendants, in support of the motion. The Solicitor General and Mr. Moxon, for the plaintiffs, opposed it. WIGRAM, V.C.-This is an application by the defendants in the cause of Hart v. Tulk to discharge an order, already drawn up, obtained on the motion of the plaintiffs in the same cause, and giving them leave to amend their bill by striking out the name of one of the co-plaintiffs; but on the terms of paying the costs of that motion, and of giving security for the costs incurred up to the amendment. The grounds of the defendants' application are two: first, that this order has been varied; and, secondly, that it has been passed without notice to them. The explanation of the first objection is thus given by the plaintiffs. The order for leave to amend was obtained on the 10th of February last, and was in the terms above stated. The costs at that time incurred by the defendants in this cause being under 60s., the plaintiffs applied on the 19th for leave to vary their order, by paying the amount into court, or to the defendants, upon the grounds that the expense of giving security would be greater than the amount of the costs. I found upon inquiry that the practice was either to pay or to give security, and I thought that in such a case as the present I might vary the order as required, exercising the same discretion as in varying orders of service, when such variation will be not less beneficial to parties than the original orders. I still think that the Court has this discretionary power to vary its orders. Being of this opinion the second ground for this application is of no importance; but requires consideration as pointing out the general practice of the Court. The Registrar who drew up the order, and three elder Registrars, and also Mr. Berrey, a gentleman of great experience in matters of practice, are all of opinion that the business of the Registrars' office would be prejudiced if I should determine that every order, however simple, and however correctly drawn up, required notice of passing it to be given to the other side. There is no pretence that the present order has not been correctly drawn up; and Mr. Colville, sen., informs me he perfectly well recollects that Lord Lyndhurst refused to discharge an order admitted to have been correctly drawn up, but of which notice of passing had not been given. Upon abstract principles I am of opinion that the rule requiring notice of passing is not to be applied to mere orders of course. I therefore refuse this motion; and considering it a very litigious motion, I refuse it with costs. Waste-Injunction-Demurrer. A plaintiff who had never been in possession, and whose alleged title first accrued nearly twenty years since, filed a bill against the defendant in possession of certain real estates, and in respect of which an action of ejectment between the plaintiff and defendant was then pending, praying for an injunction to restrain the defendant from felling certain ornamental and other timber. A demurrer on the ground that a person out of possession must first establish his right at law before he can come into equity, was allowed. The bill was filed in February 1829 by the plaintiff, alleging himself to be entitled as heir in tail male to certain property in the occupation and possession of the defendant, Lady Davenport. It stated that the property in question had been settled in 1656 to the use of the settlor for life, remainder to the use of his four sons successively in tail male, remainder to the use of the other issue of the settlor in tail male, remainder in default of such issue to the use of his right heirs in fee. It stated that the issue of the said four sons became extinct in the year 1829, and that thereupon the plaintiff, who claimed through a fifth son, became entitled to the property under the ultimate remainder to the other issue of the settlor in tail male. It also stated that Sir S. P. H. Davenport entered into possession in 1829 under some title unknown to the plaintiff; that he died in 1845, when his widow, the defendant, entered into possession, which she had ever since retained; and that the plaintiff had not discovered his title until a very recent period. The bill, after stating that the plaintiff had commenced an action of ejectment against the defendant in January last, which at the time of filing this bill stood for trial, and alleging that the defendant was about to commit irreparable waste and damage by cutting down certain ornamental and other timber, prayed an injunction to restrain the defendant from cutting down or otherwise injuring any of the timber or other trees on the premises, and from selling and disposing of the same: and also for an account of any which had been felled, sold, or disposed of by the defendant. The defendant demurred generally to the bill for want of equity. The Solicitor General and Mr. Hare, in support of the demurrer, argued that a court of equity could not interfere with the legal ownership of a person in possession at the instance of another out of possession, and claiming by adverse title, until the latter had established his title at law. There must be a privity between the parties to justify the Court in interfering by injunction to restrain either waste or trespass, where irreparable damage will ensue. The title of the plaintiff, if any, is merely a title at law; and this Court may aid him by removing technical legal impediments, to the trial of his action, as in the case of an outstanding term and the like; but it cannot otherwise assist him in an ejectment for the recovery of land or any interest in land. They cited Haigh v. Jaggar (where most of the cases on the subject are collected), 2 Coll. 231. Vice v. Thomas, (a case before the Court of Stannaries,) 4 You. & C. 538. Atkinson v. Henshaw, 2 Ves. & B. 85. Mr. Bacon and Mr. Bagshawe, for the bill. The doctrine advanced in support of the demurrer is that a party out of possession cannot obtain an injunction to restrain waste by a person in possession. This may be true as a general rule, but cases will be searched for in vain (at least Jones v. Jones is the only case) where, as on demurrer, the title of the plaintiff is admitted. This is the whole of the present case, that, being on demurrer, the defendant admits the title of the plaintiff as alleged in the bill. Pulteney v. Warren, 6 Ves. 73. WIGRAM, V.C. (without calling upon the other side) said the difficulty was that the principle of the last three cases cited by the counsel for the defendant on the question of the injunction had been applied to the case of a demurrer in Jones v. Jones, and that this was the only case. No hesitation in granting an injunction in the present case could have been felt if the question had been untouched by authority. No doubt the jurisdiction in matters of injunction respecting land originated in cases of waste, and extended itself subsequently to trespass. But it nowhere appeared that this jurisdiction had ever been exercised, except at the request of the party in possession, and for the protection. of his rights, alleged to be invaded by another party, not indeed intentionally invaded, but under an impression of the party sought to be restrained that he was exercising his own rights. The cases of railway companies depended upon the construction of their acts of parliament : those of adjacent mines on questions of boundary, for the alleged trespasser always intended to keep on his own side of the boundary line. No case was reported of a person claiming to be entitled to cut timber, but whose title was not established at law, having obtained an injunction against the person in possession to restrain him from so doing. In the present case the defendant had, by demurring to the bill, admitted for the purposes of the demurrer, the title of the plaintiff. But in the case of Jones v. Jones, although there were many grounds of demurrer, the Court refused on demurrer to interfere between the heir-at-law and a devisee in a matter of alleged waste during the litigation of their adverse rights. The learned Judge who decided that case (Sir William Grant) admitted in his judgment that he could not see any good reason why the Court should not interfere to preserve real estate, seeing that it did so in matters of personalty litigated in the Ecclesiastical Courts; but he remarked that in any event the Court would require a party to make a speedy application to the Court for its interference. In that case, the plaintif had delayed bringing an action for two years and a half. In the present case the plaintiff merely said that he did not discover his right until a very recent period; but the defendant had been in possession for very nearly twenty years. The present state of the law was certainly a matter of some regret, but a decision by Sir William Grant could not be overruled by this Court on a demurrer. The principle was well settled that a person out of possession must establish his title at law before he came into equity to restrain an act by the person in possession. Demurrer allowed. Power, Execution of by acting Executors -Appointment of New Trustees. A deed conveyed property to two trustees upon trust to sell, and contained the usual power of appointing new trustees, reserving to each of two parties to the deed, his executors, administrators and assigns, the power of appointing from time to time one of such new trustees. One of the donees died without exercising this power. By his will he appointed three executors, but one of them renounced probate:-Held, that an appointment of a new trustee by the two acting executors was a valid appointment. By indentures of lease and release, and settlement, dated the 10th and 11th of June 1833, and by a common recovery suffered in or as of Trinity term in the same year, a certain manor, with other hereditaments, was conveyed and assured by George Alexander Fullerton, Esq., and his son Alexander George Fullerton (one of the plaintiffs in the present suit) unto and to the use of George Stone and Cruger Peach, upon trust to sell, at the request in writing of the said G. A. Fullerton and A. G. Fullerton, or the survivor of them. The indenture of release contained a declaration, that if the said trustees, or either of them, or any future trustees or trustee, should die, desire to be discharged, refuse, decline or become incapable to act, as aforesaid, before the said trusts should be fully executed, then if such trustee should be the said George Stone, it should be lawful for the said G. A. Fullerton, his executors, administrators or assigns, but if such trustee should be the said Cruger Peach, then for the said A. G. Fullerton, his executors, administrators or assigns, by any deed or will in writing, from time to time, to nominate and appoint a new trustee. Cruger Peach died on the 20th of December 1836, and in his stead the plaintiff, Earl Granville, was nominated and appointed a new trustee on behalf of the said A. G. Fullerton, by indenture, dated the 5th of November 1839, expressed to be made between the said A. G. Fullerton of the first part, the said George Stone of the second part, the said Earl Granville of the third part, and a releasee to uses of the fourth part, and whereby the legal estate in the said trust premises was intended to have been conveyed by the said George Stone unto the said releasee, to the use of him (the said G. Stone,) and Earl Granville, upon the trusts aforesaid; but which indenture was not executed by the said George Stone. George Stone died on the 20th of February 1844, having devised by his will of the 23rd of January previously, all his trust estates to the defendants, G. Stone, L. P. Welland, and H. H. Berens. George Alexander Fullerton died on the 16th of August 1847, having by his will of the 3rd of the same month, appointed the defendants, John M'Neile, John Martin, and Peter Breton, his executors. M'Neile declining to act, renounced probate of the will, and refused to join with Martin and Breton in exercising the power reserved to the executors of the said G. A. Fullerton, of appointing a new trustee in the room of George Stone deceased. By indenture of the 18th of December 1848, made between Martin and Breton (the acting executors of G. A. Fullerton's will) of the first part, A. G. Fullerton of the second part, and the Hon. E. F. Leveson Gower of the third part, the said Martin and Breton, in execution of the power reserved to the executors of G. A. Fullerton in the said release of 1833, and A. G. Fullerton, nominated and appointed the said E. F. L. Gower to be a trustee in the room of the said George Stone deceased. It The legal estate in the trust premises having become vested in the defendants Stone, Welland and Berens, as devisees of G. Stone, the surviving trustee, appointed by the said indenture of 1833, and they having refused to execute any conveyance of it to the said Earl Granville and E. F. L. Gower, on the ground that the said E. F. L. Gower had not been duly appointed a trustee, by reason of the said John M'Neile not having joined in the deed of appointment of 1848, the present bill was filed by the said Earl Granville, E. F. L. Gower, A. G. Fullerton, and Granville William Fullerton, an infant, against the said devisees and the executors named in the will of G. A. Fullerton. prayed that it might be declared that E. F. L. Gower had been duly appointed a trustee, and that the defendants Stone, Welland and Berens might be directed to convey the said trust premises unto the plaintiffs, Earl Granville and E. F. L. Gower, upon the trusts affecting the same; or that a reference might be made to the Master to approve of a proper person to be a trustee in the place of the said George Stone deceased, and that upon the appointment of such person, the defendants Stone, Welland, and Berens might be ordered to convey the said trust premises unto the plaintiff Earl Granville, and such person as aforesaid, upon the trusts affecting the same. Mr. Currey, in support of the bill, said that the trust property above mentioned was about to be sold, and that the present suit had been amicably instituted for the purpose of obtaining a declaration from the Court on the validity of the appointment of the said E. F. L. Gower by the deed of 1848 to be a trustee thereof under the circumstances above detailed. Mr. T. Stevens, for the devisees of George Stone, referred to Sugden on Powers (1), and a case in the reign of Henry the Seventh, extracted by that author from one of the Year Books (2). It was not yet (1) Vol. i. p. 139, et seq. 7th edition. (2) 14 Hen. 7. The last case reported in that year. Sug. on Pow. App. No. 1. |