tenancy, 12. 10s. to Nunn, and Nunn would have had to pay to Bruton 327. 10s.; but there was no complete lease, and what did happen was this. Wymark paid the quarter's rent that accrued after the 24th of June, just as he had previously done, to Bruton, leaving therefore to be paid by Nunn only 201. Nunn, in point of fact, did pay 201., but it was suggested that that might be in consideration of some other agreement; it might be that he had had an increase of the rent. But I think that is rather a wild suggestion and utterly irreconcilable with the receipt which was given by Bruton, who receives the 201. as the balance of his rent.

Now, all rent under the old tenancy had been paid up to the 24th of June. That is distinctly shewn; therefore the balance must mean that which the tenant had to pay by some arrangement subsequently to the 24th of June. That is exactly in conformity with the agreement that was embodied first in the draft, and then in the engrossment taken from the draft as altered, and appears to me to be completely corroborative of, and to be an act of part performance of that agreement set out in that engrossed lease. It was said that this was not in conformity with the agreement because Wymark paid to Bruton. That is true: in point of form it was not exactly what would have been done if the agreement had been performed; but it was perfectly indifferent to the parties whether Wymark paid to Bruton 127. 10s. and Nunn paid the other 207., or whether Wymark paid 127. 10s. to Nunn and Nunn paid the whole 327. 10s. It was substantially exactly the same, and therefore I have the misfortune in this respect to differ from the Master of the Rolls. I think here is a parol agreement clearly proved, and part performance clearly proved, so as to entitle the parties to specific performance.

There is one other point to which I have given considerable attention, because I think that everybody seeking for performance of an agreement, even if it is in writing, is bound to come promptly. It is said here that there is that which amounts to laches, because Bruton having died in January, 1863, this bill was not filed until January, 1864, a year afterwards. The question whether the laches has been of

such a nature as to disentitle the party to relief must always depend on the special circumstances of each particular case. I think here it was a very venial delay, because in truth the plaintiff had every thing that he was to get; he was in possession; he was paying his rent, he did pay a quarter's rent, and was ready and willing to pay the rest, but it was not received; the devisees of Bruton refused to receive it, fairly enough, as they did not know whether they would be justified. as against their cestuis que trust; and I cannot think the delay is of any importance, more particularly when we take into account that though the parties knew that they were at arm's length about it, the trustees did not take on themselves to do anything actively to disturb the plaintiff in his enjoyment until the month of October, 1863, when they advertised the property for sale, and immediately the plaintiff remonstrated about it; some correspondence took place, and in the course of three months afterwards he filed this bill. I cannot think, therefore, that there was any laches to disentitle him to a decree for specific performance; but I do not think he ought to have his costs, because it might have been more right that he should have proceeded sooner. Therefore I shall reverse the dismissal and make the usual decree for specific performance.

COLLIER V. M'BEAN.

LORDS JUSTICES. Dec. 9. Specific Performance-Title- Will, Construction of-Title Judgment of Court below.

An appellate Court, notwithstanding its impression in favour of the vendor's title, will not decree specific performance in opposition to the decision of the Court below that a good title cannot be made, unless such decision be clearly wrong.

This was a suit against a purchaser for specific performance.

The plaintiff's freehold farm, called "The Windy Fields," was put up for sale by auction in August, 1862; and it was declared at the auction, on the plaintiff's

behalf, that he had a good title to the fee simple. The property was not sold; and, in October, 1862, the defendant agreed for its purchase by private contract, and paid a deposit, which was retained down to the hearing of this appeal. The legal estate in the property was in a mortgagee; but he was willing to join in conveying to the defendant.

A formal agreement in writing, dated the 27th of October, 1862, was signed by the plaintiff, and by the defendant's solicitor on the vendor's behalf, though, as the defendant alleged, without his authorization. This instrument contained a condition enabling the plaintiff to rescind the contract, if unable to answer or remove the objections or requisitions which the defendant should deliver under the agreement; and it provided, also, that, for any defect of description or mis-statement of tenure, the sale should not be annulled, but a compensation or equivalent should be given or taken.

By the abstract of title, delivered on the 6th of November, 1862, it appeared that the plaintiff claimed as devisee under the will of James Collier, dated the 23rd of May, 1827, by which the farm was devised to trustees, in trust to pay the testator's debts and legacies, and thenceforth to pay the rents and profits to the plaintiff for life, and from and after the plaintiff's decease, and the payment of the testator's debts and legacies, to the heirs of the plaintiff's body, and, in default of such issue, to the testator's right heirs for ever. It also appeared that the trustees had conveyed to the plaintiff the estate vested in them, which the plaintiff asserted was a legal estate in fee simple, but, as the defendant contended, an estate for the life ofthe plaintiff, with a superadded chattel interest. The plaintiff had suffered a recovery, but he was not the testator's heir-at-law.

On the 21st of November, the defendant's solicitor sent to the plaintiff's solicitor requisitions on the plaintiff's title, as shewn by the abstract. The seventh requisition was: "William Collier (the plaintiff), under this will, takes only a life interest in the property, and the trustees seem to have exceeded their duty in conveying to him the estate vested in them, and which, in equity, might properly be

held not to bar the issue in remainder. The son (i. e. William Collier the younger) of William Collier is required to concur in the sale." The plaintiff refused to ask his son's concurrence in the sale, and referred the defendant to a suit, Collier v. Collier, to which William Collier the younger had been a party, stating that the conveyance from the trustees was set out in the bill in that suit, and that, by the decree, the trustee had been ordered to convey the residue of the estate which did not pass by that conveyance to the plaintiff and his mortgagee as a matter of right. The defendant still insisted on the concurrence of William Collier the younger, and, on the plaintiff's continued refusal to obtain it, suggested that the contract should be rescinded and the deposit returned. The plaintiff refused to follow this advice; and the defendant issued a writ for the recovery of the deposit.

On the 12th of March, 1863, the plaintiff filed his bill for the specific performance of the agreement of the 27th of October, 1862, offering to convey and procure all proper parties to convey the premises to the defendant in fee simple.

The cause was heard on the 18th of July, 1863, and certain inquiries ordered to be made. On its coming on for further consideration, the Master of the Rolls, on the 26th of May, 1865, being of opinion that a good title could not be made, dismissed the bill with costs. The plaintiff appealed.

1 Fearne, Cont. Rem. 53, n., 10th edit.

They cited in support of their construction of the will

Poad v. Watson, 6 El. & B. 606; s. c.

25 Law J. Rep. (N.S.) Q.B. 396. Doe d. Davies v. Davies, 1 Q.B. Rep. 430; s. c. 10 Law J. Rep. (N.s.) Q.B. 169.

Doe d. Tomkyns v. Willan, 2 B. & Ald.

84.

The Court no longer went so far as had perhaps been once its custom in allowing any doubt to be a sufficient ground for refusing specific performance. If it were itself satisfied that the title was good, it would force it on the purchaser, although it might be arguable.

Mr. Cole and Mr. Ince, for the defendant, urged that, whether the plaintiff's construction of the will were the true one or not, the title was clearly too doubtful to be forced upon a purchaser, especially, considering the view which one branch of the Court had taken of it. The question in fact was, whether the defendant or the plaintiff's estate was to bear the expense a suit on the plaintiff's death. (The argument for the defendant was then stopped by the Court.)

of

LORD JUSTICE KNIGHT BRUCE said— The question was, whether a Court of appeal could, in conformity with its rules as to dealing with cases of specific performance, force such a title on a purchaser. His present impression, which might possibly have been removed had the other side been heard on the point of construction, was indeed that, under the will, the trustees took the entire legal fee on certain trusts. But he felt great difficulty, notwithstanding this impression, in decreeing specific performance in a case coming before the Court on appeal from a Judge who had taken an opposite view of the construction of the devise. A case coming before them under such circumstances ought to be free from all doubt.

LORD Justice Turner said, that he had felt the same difficulty as his learned Brother as to forcing such a title on the purchaser, after the decision of the Master of the Rolls.

cautious the Court felt itself obliged to be in cases of specific performance. He did not wish to be understood as meaning that a Court of appeal could not overrule a decision by the Court below on a point of construction in a suit for specific performance; but it would be reluctant to do so unless where the case was perfectly clear. It was obvious that the decision of the Master of the Rolls, whether correct or not, would in any case prevent the title from being clearly marketable (2).

This was a question as to the costs of parties appearing upon a winding-up petition, which had been withdrawn, and of which notice of withdrawal had been given. The petition was called on to be heard on the 8th of December, when the counsel for the petitioner asked for no order upon it, but that it might be withdrawn. Thereupon a number of parties appeared and asked for their costs, and the Court directed the matter to stand over for fuller information.

From the evidence now given, it appeared that the petitioner, Ferrand Oliphant, was a member and director of the Marlborough Club Company, which was established in

1864, in Grafton Street, Piccadilly. The club was perfectly solvent, but the petitioner had been annoyed by the demand for payment of some trifling debt which he was unable to discharge, and had induced his solicitor, Mr. Edmonds, also a director of the club, to prepare and present a petition to wind up the company, alleging that it was embarrassed and unable to meet its liabilities. The petition was presented on the 21st of November, and duly advertised in the Gazette on the 28th of that month, to be heard on the 8th of December.

On the 5th of December a meeting of directors was held, at which the petitioner and Edmonds were present, when the petition was discussed, and the petitioner was induced by the indignant opposition of the directors to abandon it. Thereupon the petitioner's solicitor gave formal notice of his intention to withdraw the petition, and directed his clerk not to serve it upon the company, nor upon any one else. At the same time it was represented to Edmonds that costs had been incurred by the chairman, Pickering, and several directors of the company, in preparing to oppose the petition; but Edmonds, on behalf of his client, declined to pay any costs, and an intimation was then given that they would be asked for at the hearing.

The intended withdrawal of the petition had not been advertised, but notice of the fact had been given to parties who had applied for copies of the petition. Some of these parties, and amongst them three members, Soare, Watkins and Owen, had received this notice on the 6th of December. But, with the exception of Owen, none of them had evidence to shew that they had incurred any costs previously to that date. Gough, another member, had not received any direct notice of withdrawal; but he now acted as solicitor for Watkins, who had. Two other members, Williams and De Winton, had not applied for a copy of the petition; but they had instructed counsel to appear, and they received no notice of withdrawal until the morning of the 8th of December, the day on which the petition appeared in the Vice Chancellor's paper.

The petition was never served upon any one, and no affidavit was filed in support of it.

NEW SERIES, 35.-CHANC.

Mr. Stevens and Mr. Willis, for the company, and the former for Pickering, Soare, Owen and other members; Mr. Pontifex, for Williams and De Winton; and Mr. Laurie, for Watkins and Gough, asked for their costs against the petitioner, submitting that he had no right to withdraw his petition, but upon the terms of paying the respondents their costs previously incurred.

Mr. Caldecott, for the petitioner, opposed the several applications, insisting that the appearance of the respondents was not bona fide, and neither useful nor necessary. No order could be made to affect the company, inasmuch as the petition had never been served as required by the general orders. Parties appearing only in answer to the advertisement did so at their own risk, otherwise any number of shareholders might appear simply to create costs. Besides, all the respondents had sufficient notice of withdrawal, for notice to Watkins was notice to his solicitor, Gough.

KINDERSLEY, V.C.-The only question is, whether any, and which, of the respondents upon this petition are entitled to their costs. It seems that the club is in no difficulty whatever, but that the petitioner had taken some offence at a demand for payment of a trivial debt, and was induced by personal pique to present this petition. It had not, however, been served when the meeting was held at which the petitioner was present, and there, after a discussion upon the subject, he was prevailed upon to withdraw it, being himself a debtor to the club, and the club perfectly solvent. At that time the chairman of the company referred to the costs occasioned to the company in preparing to oppose the petition, and in particular to the expenses incurred by himself in two journeys up to London; and upon Mr. Edmonds, on behalf of his client, refusing to pay them, he was told that the company would endeavour to recover them. Accordingly, they instructed counsel to appear upon the petition, who did so, and asked for their costs, and the matter only stood over to the present day for information as to details. There can be no doubt that the company are entitled to their costs. It was said they were never served, and, therefore, they were not acting bona fide

U

in coming forward to oppose. But there is no foundation for that suggestion. True, they were not served; but surely the directors, on finding that the petition had been presented and advertised, might, if necessary, take steps to prevent a winding-up for which there was no reason. The company had a right, and everybody interested had a right to come forward and oppose such an application, and there is no ground to say they only came to create costs. The company clearly must have their costs; and so must Pickering, who stands on the same footing.

The other parties are in a different position. Williams and De Winton were not personally served, but practically they were by the notice in the Gazette, the very purpose of which advertisement is to give every shareholder an opportunity to appear and oppose if he thinks proper. They came to oppose it, and rightly; and the only question is, whether they had incurred any expenses prior to their receipt of notice of withdrawal; and it appears that they only received this notice on the very day on which the petition was in the paper, by which time they had instructed counsel to appear, and they must have their costs. So must Gough, for notice to Watkins was not notice to him, and the onus lies upon the party insisting that notice had been given to prove that fact. But Watkins had distinct notice on the 6th, and so had Soare, and there is nothing to shew that they had incurred any costs prior to that time. Therefore, they cannot have their costs; and the same observation applies to the others in the same category. Owen had incurred costs before he received the notice, and he must have them.

Defendant succeeding was not allowed his costs of a suit concerning 181. where he had refused a reference.

On the 24th of October, 1864, the plaintiffs, who were the assignees in bankruptcy of William Dean, put up for sale by public auction, in two lots, certain leasehold property situate in the parish of St. Pancras, in the county of Middlesex, and the defendant became the purchaser of such lots for the respective sums of 120l. and 20%. The particulars of sale, after the description of the lots, contained the following clause : "Possession will be given immediately on the completion of the purchase, and the vendors will pay all outgoings until the half-quarter day,"

The conditions of sale also, after providing for the payment of the deposit by the purchaser immediately after the sale, and for the completion of the purchase on the 14th of November, 1864, proceeded as follows: "And the purchaser shall then have possession of the property, all outgoings up to the day being cleared by the vendors.""

The defendant claimed either to be allowed half a quarter's rent up to the 14th of November, or that the plaintiff's should pay it.

The plaintiffs refused to accede to the defendant's claim.

The annual rent of the premises comprised in lot 2. was 1907.; and as the purchase-money of that lot was, as has been stated, only 207., the half-quarter's rent of the premises therein comprised exceeded the purchase-money of such lot.

The annual rent of the premises comprised in lot 1. was 100.; a half-quarter's rent of the premises comprised in the two lots was therefore 36l. 58.

The plaintiffs' solicitor, in order to save expense, proposed to refer the question between the plaintiff's and the defendant either to the decision of the Commissioner in Bankruptcy, or to any one of Her Majesty's counsel, or to compromise the matter by allowing half the sum in dispute, or to submit the question to this Court on a special case; but all those offers the defendant declined.

The plaintiffs thereupon filed this bill against the defendant for a specific performance of the agreement to purchase, and