In this case notice of motion for a decree had been

CARTER V. CARTER.

Wood, V.-C.
18 JULY, 1863.
Practice-Solicitor-Interest and Costs-

23 & 24 Vict. c. 127, s. 27.

Where the payment of taxed costs was unavoidably delayed:

Held, that under the 27th section of the 23 & 24 Vict. c. 127, interest was payable on such costs from the date of the Taxing-Master's certificate.

By an order, made in this suit, dated the 31st of

July, 1857, it was ordered amongst other things, that

the costs therein mentioned should be taxed, and that so much of the estates therein specified as might be necessary to raise the amount of such taxed costs, should be sold, and the proceeds paid into the Bank, to the credit of the cause for the purpose of liquidating such costs.

The Taxing-Master made his certificate on the 3rd of August, 1860.

Some difficulty having been experienced in selling the estates charged with the costs, the purchase-money had but recently been paid into the Bank.

The plaintiffs now presented a petition in the suit praying, amongst other things, that the sum of 1,4967. 8s. 11d., being the amount of costs found due by the Taxing-Master's certificate, with interest thereon after the rate of 4 per cent. per annum, from the 3rd August, 1860, to the date of the present petition, might be paid to the solicitors entitled to such costs, out of the fund in Court.

served on the defendant, and the plaintiff subsequently set down the cause for hearing as short, without giving the defendant notice. The decree was made in the absence of the defendant on an affidavit of service of the notice of motion; but the registrar refused to draw it up, it appearing that the defendant had not been aware that the cause had been set down as short.

B. L. Chapman applied that the decree might be drawn up.

WOOD, V.-C., after consulting the registrar, refused the application: but made an order that the cause should be heard as short next Saturday; the plaintiff to serve notice to that effect on the defendant.

Specific Performance-Agreement for a Lease— Short Term-Laches-Expiry of Term before Hearing.

The plaintiff being entitled to specific performance of an agreement for a lease of a house for a short term, filed a bill to enforce his right, but allowed the term to run out before the cause was heard: the bill also prayed damages. The Court refused to decree specific perform ance, or to award damages, but ordered the deposit paid on the signing of the agreement to be returned to the plaintiff.

The plaintiff in such a case ought to apply to the Court to have his cause advanced.

On the 9th of December, 1861, the plaintiff, Viscount de Brimont Brassac, and the defendant, Dr. Martyn, entered into an agreement whereby the latter agreed to let, and the former to take, the house No. 33, Thurloe Square, then in the occupation of the defendant, with the furniture and effects therein,

Vict. c. 127, s. 27.

C. M. Roupell, for the defendants.

WOOD, V.-C., observed, that this was the first time the point had been raised before him. He was of opinion that the petitioners were entitled to the order they sought, and he ordered accordingly.

1862; and the plaintiff was to pay for the house the sum of 4507. in manner following: 1007. on the signing of the agreement, 1007. on possession of the house being taken, and 1007. on the 24th of June, and 150!. on the 20th of August, 1862; and the plaintiff agreed not to underlet the house without the defendant's permission. The first sum of 1007. was duly paid.

On the 1st of February, the defendant had removed from the house, and possession was given to the plaintiff's agent; but the second sum of 1001, was not paid on that day, through inadvertence, as the plaintiff alleged, he being then in France.

The Viscount was one of the French Commissioners for the Exhibition of 1862; and the house was to be occupied by him in connection with his duties. However about the end of January, 1862, events occurred

which he expected would prevent him from residing in England during the period of the Exhibition, and he consequently wrote to his agents in London, asking them to arrange with the defendant terms of release from his agreement. The defendant's agent, a Mr. Marler, on the 5th of February, made a proposal to release the plaintiff on his paying 1007., in addition to the sum already paid; but this was refused by the plaintiff's solicitors on the 8th of February. In a letter of that date, they said, that rather than do so, their client would try to underlet the house, completing his arrangement with the defendant; and on the 10th of February, the defendant's agent wrote as follows in reply:

"I will do my best to get the Viscount a tenant, with as little delay as possible, when I am in a situation to act; Dr. Martyn in the meantime complains of his position in this unsatisfactory business. The Doctor expects the Viscount to complete his bargain, and to avoid similar trouble in future, suggests, that the remaining 3501., be at once paid down: this being done, no difficulty whatever will be thrown in the way of reletting the residence for the Viscount."

On the 15th of the same month, the plaintiff's solicitors arranged to have the house placed on the books of a house agent to be let; and on the same day they called on Marler, to offer him the second sum of 1007., but did not find him.

On Monday, the 17th of February, an actual tender was made to Marler, and refused by him. The defendant also refused to allow the house agent to show the house, on the ground that the agreement was at an end by reason of the plaintiff's breach of the contract to pay 1007. on the 1st of February.

Various negotiations subsequently took place between the solicitors of both parties, the plaintiff insisting on obtaining possession of the house, or the return of the sum of 1007. which had been paid. The defendant had, on the 15th of February, resumed occupation of the house; and he refused to give up possession to the plaintiff, or to return the deposit.

In the beginning of March, 1862, the plaintiff ascertained that he could return to England; and he actually returned in the middle of that month. The defendant still refusing to accede to the plaintiff's terms, the latter, on the 26th of March, filed his bill, seeking specific performance of the agreement of the 9th of December, 1861, and also praying that the defendant might be decreed to pay to the plaintiff the amount of the damages sustained by the plaintiff, by the refusal of the defendant to perform the agreement.

On the 26th of March, just before the bill was placed on the file, the defendant offered to return the deposit of 1007., but still refused to give up possession to the plaintiff.

The plaintiff, on the 3rd of April, succeeded in getting the house adjoining that of Dr. Martyn; after which he seems not to have proceeded very actively with the suit.

1st. That time was of the essence of the contract, and the plaintiff not having performed his part on the 1st of February, was not entitled to relief,

Hearne v. Tenant, 13 Ves. 287;
Parkin v. Thorold, 16 Beav. 59;

Doloret v. Rothschild, 1 Sim. & Stu. 590;
Withy v. Cottle, Turn. & R. 78;
Coslake v. Till, 1 Russ. 376.

2nd. That the plaintiff's neglect to press on the suit, had deprived him of his right to relief, even if he had been originally entitled to it,

2 Story, Eq. Jur. 96 (3rd ed.);
Macbryde v. Weekes, 22 Beav. 533.

Rolt, Q.C., was heard in reply on the second point.

20 JULY, 1863.

WOOD, V.-C., said, that, on the face of the agreement, time was not of the essence of the contract. No doubt time was an important element, and might have been made of the essence of the contract by the defendant giving notice to that effect to the plaintiff; but, whether that was so or not after the letter of the 10th of February, it was quite clear that the defendant insisted on the agreement being performed, and could not now be heard to say that time was essential.

The plaintiff being, therefore, entitled to specific performance when the bill was filed, had allowed the time fixed by the agreement of the lease to run out before the hearing, and now asked for damages; but the Court could only give damages in cases where it could grant specific performance. Where specific performance was sought, it was the duty of the plaintiff to do his best to obtain what he professed to ask for. Here, however, the plaintiff had obviously no desire to obtain specific performance after the bill was filed: and he therefore did not press on the suit, which did not come on for hearing till after the expiry of the period for which a lease was to be granted.

Under like circumstances, Sir T. Plumer had been of opinion, in Nesbitt v. Meyer (1 Swanst. 223), that specific performance ought not to be granted: and this opinion had been acted on in Walters v. Northern Coal Mining Company (5 De G. M. & G. 629), by Lord Cranworth, whose comments on Nesbitt v. Meyer, p. 638, his Honour cited. In Wilkinson v. Torkington (2 Y. & C. Ex. Ca. 726), Alderson, B., had refused to decree specific performance of an agreement for a lease for a term which had expired at the hearing; but had given a decree for an account as the only relief to which the plaintiff was then entitled. Here the only relief to which the plaintiff was now entitled was the return of 1007. paid on entering into the agreement: that the plaintiff might have had at the time

when the bill was filed, and, therefore, he was disentitled to his costs: at the same time the conduct of the defendant did not entitle him to his.

It had been said that the Court was not in the habit

of advancing causes, and that the plaintiff was, therefore, not in default: but, where the term was so short, the Court, on application being made, would advance the cause and there was the express authority of Sir W. Grant, in Hook v. Livesey (1 Mer. 381), for such a course, which he must hold that the plaintiff ought to have adopted.

Minute. Declare that the plaintiff was at the time of the filing of his bill entitled to specific performance of the agreement of the 9th day of December, 1861, and, the time having now elapsed during which the tenancy of the messuage in the said agreement mentioned was to have continued, the Court doth hereby direct the defendant to repay to the plaintiff the sum of 1007. received by him in respect of the said agreement within a fortnight from the date of this decree; but, inasmuch as no steps have been taken by the plaintiff to advance or otherwise expedite the hearing of the cause so as to obtain a specific performance of the agreement, the Court doth not think fit to make any order as to damages or costs of the suit.

- Misrepresentation - Voidable Contract Forfeiture of Shares.

Shares in several mines were advertised to be sold by C; M bought them, paying the price of the shares to T, who represented himself to be C's agent. The shares actually belonged to T:

Held, that the transaction was voidable.

at 247.

20 Carnewas, at 20 shillings. Apply to Mr. Carpenter, 2 South Grove East, Mildmay Park, London."

Finding that the prices of the shares were less than those given in the mining share list, contained in the same number of the "Mining Review," he wrote to Mr. Carpenter, making an offer for the purchase of certain of the shares named in the advertisement. He received in reply a letter, which was partly as follows:"78, Lombard Street, London, January 28th, 1860. "Sir, -We are instructed to acknowledge the receipt of your letter to Mr. Carpenter, and to accept your offer. . . . . We beg to remark that our opinion of Naut-y-Jago and Carnewas is so favourable, that we hold largely, &c. &c.

"We are, Sir,

"Your obedient servants,
"TREDINNICK & Co."

On the receipt of this letter, the plaintiff wrote to Messrs. Tredinnick, stating his surprise that he had not been replied to by Carpenter, and that if they

were to act in the transaction he would wish to be informed whether he would be put to any charge or expense on account of their so acting in addition to the price he was to pay for the shares. The following was the reply of Tredinnick & Co. :

"We have the pleasure to acknowledge the receipt of your letter, and in reply beg to inform you that we make no claim upon you in respect to the shares purchased of Mr. Carpenter, that gentleman having employed us solely to expedite the transaction and save you unnecessary trouble in completing the

same.

him. T sold his own shares to M:

Held, that this transaction was also voidable. M sold part of the shares in one of the mines, before he knew of the fraud:

Held, that if he had not bought shares in other mines, as part of the same transaction, this sale would not have disentitled him to relief as to the remaining shares in the one mine. The shares in some of the mines being alleged to have been forfeited by reason of non-payment

of calls, an inquiry as to this was directed, it being

Held, further, that such forfeiture would disentitle the plaintiff to relief, if the plaintiff did not inform the defendant that the calls had been made.

In the month of January, 1860, Maturin, the plaintiff, when staying at an hotel in Dublin, saw the following advertisement in the "Mining Review" of the 19th of that month :

For sale. Twenty shares in Nant-y-Jago, at 511. per share. 20 Buller and Bertha, at 57. 20 Bassett,

Maturin: the plaintiff stated, and as the result of the not aware of this circumstance. evidence his Honour took it to be true, that he was

At this interview, Tredinnick strongly recommended the plaintiff to purchase more shares in the Nant-y-Jago Mine: and in consequence of such recommendations the plaintiff gave him an order to purchase 100 more shares for him in that mine if they could be got: and it was arranged that the plaintiff should call again on the defendant two days after wards, and pay for such shares as he might have been able to procure; the defendant saying that he knew a party from whom he thought he could obtain 80 shares. Accordingly, two days after, the plaintiff paid for, and had transferred to him, 100 shares in the mine, the transfers also purporting to be from

Tredinnick to Maturin.

It turned out that the whole of the shares so bought by the plaintiff were the property of Tredinnick;

Carpenter being a person in his employment, and his name being used, "simply as a medium for realisation."

In May, 1861, the plaintiff filed his bill against Tredinnick, desiring to have the purchases set aside, on the ground of misrepresentation. Previously to filing the bill, the plaintiff had sold twenty of the Nant-y-Jago shares he had also neglected to pay a call made in March, 1861, in respect of the Nant-yJago shares; and under the constitution of the mining company, his shares had, become forfeited in consequence of such non-payment at the time of filing of the bill. Under a resolution of the managing committee of the mine, passed in 1862, the shares were sold. Tredinnick was a member of this committee, and knew of the resolution and of the subsequent sale of the shares.

It was alleged by the defendant that others of the shares bought by the plaintiff had become forfeited for non-payment of calls; and it was admitted by the plaintiff that he had taken no steps to inform the defendant of the fact that calls had been made in respect of the shares.

It was alleged by the bill that Tredinnick had made false representations to Maturin at their first interview as to the value of the shares advertised, and of the prospects of the Nant-y-Jago mine but his Honour did not think that the case was made out on these points.

Daniel, Q.C., and T. Stevens, for the plaintiff, contended that the purchase made by the plaintiff of the shares advertised by Carpenter ought to be set aside, in consequence of the misrepresentations made by Tredinnick as to the ownership, and also as to the value of the shares and prospects of the mines.

As to the subsequent purchase of Nant-y-Jago shares, they argued that the defendant had been employed by the plaintiff as his agent in this transaction, which ought to be set aside on the authority of

Gillett v. Peppercorne, 3 Beav. 78.

Willcock, Q.C., and Roxburgh, for the defendant, contended that the plaintiff could not be taken to have been misled as to the ownership of the shares, the transfers having been made from Tredinnick. They also submitted that, in consequence of the sale and forfeiture of some of the shares, the plaintiff had disentitled himself to relief. On this point reference was made to

Clarke v. Dickson, 27 L. J. Q. B. 223.

a mode of conducting business which the Court would not countenance. But the case did not rest there, for the defendant had, in his letters, used expressions directly calculated to mislead the plaintiff as to the ownership of the shares. Now, though a vendor was not bound to disclose to the vendee the true ownership of the property he was engaged in selling, he was bound to abstain from making any misrepresentation regarding the ownership; and, in the present case, the plaintiff had declared that he would have placed no reliance on the opinion of the defendant had he known that the shares were his. Such a transaction could not stand.

As to the 100 Nant-y-Jago shares not included in the advertisement, it was clear that, in that transaction, the defendant had acted as the plaintiff's agent; and the principle laid down in Brookman v. Rothschild (5 Bligh. (N. s.) 165) and Gillett v. Peppercorne (loc. cit.) was applicable to it.

His Honour's difficulty in the case was occasioned by the circumstance that the plaintiff had lost his interest in some of the shares.

His Honour was of opinion that if the defendant had been a purchaser of 100 shares in one mine, and, before knowledge of the fraud, had sold twenty of them, yet relief could be given as to the remaining eighty; for the whole of the shares would, in such case, rise or fall in value together. He was also of opinion that the forfeiture of the Nant-y-Jago shares would not be a bar to the plaintiff's claim, as Tredinnick was cognisant of the whole proceedings relating thereto. But the purchase of all the shares being one transaction, if the shares in some of the mines had become forfeited, it would be impossible to restore the parties to the position they occupied previous to the contract, as the valuable shares might all be gone, and only the worthless ones remain in the plaintiff's possession. He should, therefore, direct an inquiry at the plaintiff's risk as to the forfeitures; otherwise, the bill to be dismissed without costs.

Wood, V.-C. 22 JULY, 1863.

Ex parte CARMARTHEN AND CARDIGAN RAILWAY COMPANY. Practice-Petition-Service on Landowner8 & 9 Vict. c. 18, ss. 85, 87.

A petition by a railway company for investment of money paid into Court by them, under the provisions of

WOOD, V.-C., said the actual contract in this case was based on negotiations of such a nature that it was impossible to hold the plaintiff to it. The defendant had advertised shares belonging to himself in the name of a person in his employment, who had no interest in them. His Honour inclined to think that this was

1845, need not be served upon the landowner, for whose security the money was deposited.

The Carmarthen and Cardigan Railway Company requiring immediate possession of certain lands, authorised to be taken by their special Act for the purposes of their undertaking, had paid into Court the ascertained value of such lands, under the provisions of the

85th section of the Lands Clauses Consolidation Act, 1845.

A petition had been presented under the 87th section of the Act by the company, asking that such deposit might be invested in Consolidated Bank Annuities, and the dividends which might accrue thereon accumulated.

The order had been made, but the registrar had declined to draw up the order, on the ground that the petition ought to have been served on the landowner, for whose security the money had been deposited.

Locock Webb, for the company, now stated the above facts, and said that he had frequently obtained such orders without the landowner being served.

WOOD, V.-C., said, that as it appeared to be the settled practice not to serve the landowner, the order might be drawn up without serving him.

17 JULY, 1863.

In this case a judgment debtor had been adjudicated bankrupt, but the time for showing cause against such adjudication had been enlarged on application. Meantime, on application to a Common Law Judge, the judgment obtained against the bankrupt had been set aside on payment of the costs to be taxed, and also of the amount of the plaintiff's claim, intə Court.

C. E. Lewis, solicitor, now appeared on behalf of the bankrupt, and asked that the adjudication should

be annulled.

Clark, solicitor, for the petitioning creditor.

HIS HONOUR said that the adjudication would be annulled conditionally on the costs of the bankruptcy being paid.

C. E. Lewis said that the matter had now been taken entirely out of this Court by the proceedings above mentioned, and it would, therefore, be hard to saddle the bankrupt with costs.

HIS HONOUR, however, held, that the judgment

Costs.

Adjudication of bankruptcy made on a judgment, valid at the time of commencement of proceedings in bankruptcy, will not be annulled without payment by the bankrupt of costs in bankruptcy, although such judgment has in the meantime been satisfied.

Court were commenced, the bankrupt was liable to costs; although he would not say that the payment of costs should be made a condition precedent to the annulling of the bankruptcy.

Ordered that the bankruptcy should be annulled, and that the costs of the proceedings in bankruptcy should be paid by the bankrupt.

OSBORN v. DONALD.

Bill of Exchange · Action for Wrongfully Putting into Circulation-Failure of Consideration-Reasonable Delay.

D, living at Hartlepool, sent a cargo of coals at the request of H, and on the account and at the risk of H, to H, payment to be made in cash in exchange for documents. H bought the coals for and on behalf of N, who, being unable to pay cash, procured Oto draw a bill upon him, N, for the price of the coal at fourteen days, so as to give him time to realise the cargo and meet the O indorsed the bill and gave it to H on the 26th March, expressing his expectation that N would receive the shipping documents in exchange immediately. H sent the bill to D, telling D that he had accepted the bill in payment, and advising D to detain the documents until he (D) had made inquiries as to the

bill.

solvency of the parties to the bill. D detained the documents, and on the 27th paid over the bill to his own account at his bankers, indorsing it to them. On the 28th N gave notice to H that he would not accept the cargo and documents unless they were given over to him on or before the 30th, and on the 1st of April, when they were tendered to him, he declined to accept them. Subsequently O was sued upon the bill by an indorse for value, and compelled to pay.

In an action by O against D for wrongfully putting the bill into circulation, it was

Held, by WIGHTMAN, Crompton, and MELLOR, JJ., that D was a bonâ fide holder for value when be indorsed the bill away, and that the consideration for the bill had not then wholly failed, and that D had not been guilty of any unreasonable delay in making inquiries, and that, therefore, the action was not maintainable.

By COCKBURN, C.J., that D had wrongfully put the bill into circulation after a total failure of consideration,