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ROGERS

2.

CHALLIS.

{ 177 ]

[ *178]

(The MASTER OF THE ROLLS referred to Brough v. Oddy (1).) [They cited Bass v. Clivley (2), and claimed damages in the alternative under 21 & 22 Vict. c. 27, s. 2.]

Mr. R. Palmer and Mr. Hingeston, for the defendant, were not called on.

THE MASTER OF THE ROLLS:

I am clear that the Court has no jurisdiction in this case. I must first consider how the matter stands, independently of Sir Hugh Cairns' Act, and next, the effect of that Act. The case cannot be put higher than this: that the defendant applies to the plaintiff for the loan of 1,000l. upon a security which he specifies, and the plaintiff assents to the proposal, but on the next day the defendant says, "I have changed my mind, I do not require your 1,000l. I can get it upon better terms elsewhere." Is that a case in which a person can come to this Court for a specific performance, and say, "you, the defendant, are bound to let me advance the 1,000l. to you,-it is true your circumstances may be altered, but you are bound to let me advance the money to you?" It is very justly said, that the Statute of Frauds does not apply to such a case; therefore, if the Court has jurisdiction in such a case, any conversation may be made the subject of a suit for specific performance: thus if two friends are walking together, and one says, "will you lend me 100l., at 51. per cent. for a year upon good security," and the other says "I will," that conversation might be made the subject of a suit for specific performance in this Court, if on the next day one friend should say "I do not want the money," or the other should say "I will not lend it." Nothing would be more difficult and more dangerous than the task which this Court would have to perform, if it were to investigate cases of that description. This is not an agreement to purchase or sell anything, it is not the case of a contract to buy a particular debt upon certain terms, or a contract for the purchase of a certain quantity of goods, to be paid for by instalments and in a particular manner, in which case the COURT has held, that these were circumstances which took the transaction out of the rule of this Court, that an ordinary contract for the sale or purchase of goods is not the proper subject of a suit for specific performance in this Court. It is nothing more than this: a proposal to borrow a certain sum of money, upon certain terms, for a certain time, which is accepted, and the borrower says two or three days afterwards, "I do not want the money, and I have got it elsewhere, upon better terms."

(1) 32 R. R. 139 (1 Russ. & My. 55).

(2) 31 R. R. 71 (Tamlyn, 80).

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It certainly is new to me, that this Court has ever *entertained
jurisdiction in a case where the only personal obligation created
is, that one person says, if you will lend me the money, I will
repay it and give you good security," and the terms are settled
between them. The COURT has said, that the reason for compel-
ling a specific performance of a contract is because the remedy
at law is inadequate or defective. But by what possibility can it
be said, that the remedy here is inadequate or defective? It is
a simple money demand; the plaintiff says, "I have sustained a
pecuniary loss by my money remaining idle, and by my not getting
so good an investment for it as you contracted to give me." This
is a mere matter of calculation, and a jury would easily assess
the amount of the damage which the plaintiff has sustained. I
express no opinion whether an action would, or would not, lie
in such a case as this; but I am satisfied that before Sir Hugh
Cairns' Act, this Court would not have entertained jurisdiction
in such cases.
If I recollect right, there is a case in the books (1)
which decides that an agreement to fill up a gravel pit is not
one of which this Court will decree the specific performance.
I apprehend it would have startled some of the Judges of this
Court to hear that its jurisdiction in specific performance ex-
tended to the case of agreements to lend moneys. How could it
be? The case of a contract for the purchase of stock in the
funds, at a particular price, is a much stronger case; for the
injury arising from its non-performance might be much greater
and more uncertain than in the case of an agreement to borrow
a sum of money on particular terms, nevertheless specific per-
formance in a case of stock has repeatedly been refused. It
appears to me, *therefore, to be contrary to every principle on
which this Court has acted, to say, that this is a case in which,
independent of Sir Hugh Cairns' Act, this Court has jurisdic-
tion to decree a specific performance: always bearing in mind
that the Court grants specific performance only in cases where
the remedy at law is inadequate and defective, and also the
observations made by Lord ELDON (2), that though the Court
exercises a discretion in cases of specific performance, yet that
it is to be exercised according to fixed rules and principles, and
not arbitrarily.

Next, as to Sir Hugh Cairns' Act (21 & 22 Vict. c. 27). This gives the Court jurisdiction to award and assess the amount of damages in certain cases. The only one which applies to this is, where the Court has jurisdiction to entertain an application for specific performance. I am of opinion it has none here, and I think that it would be productive of very serious (1) Flint v. Brandon, 8 Ves. 159. (2) White v. Damon, 6 R. R. 71 (7 Ves. 35).

ROGERS

r.

CHALLIS.

[ *179 ]

[ *180 ]

ROGERS

v.

CHALLIS.

1859. July 4, 5.

Rolls Court.
ROMILLY,
M.R.
[181]

evil, if in cases which are the proper subjects of an action for damages, or in cases of assumpsit upon an agreement of some sort, a party could come here for a specific performance of it, or for damages; thus throwing upon a court of equity the functions which properly belong to a jury. I think this is not the meaning of Sir Hugh Cairns' Act, and that it is not desirable to extend it to such cases.

This is a matter proper for the determination of a court of law, the questions being, first, whether an action of assumpsit will lie upon an agreement to borrow money, and secondly, the amount of the damage which the plaintiff has sustained.

I am of opinion that the bill must be dismissed with costs.

BROOKE v. PEARSON (1).

(27 Beav. 181-185; S. C. 5 Jur. N. S. 781; 7 W. R. 638.)

By a marriage settlement a rent-charge out of the husband's property was to become payable to his wife if he mortgaged it or became bankrupt. He mortgaged it first and afterwards became bankrupt: Held, that a valid rent-charge having arisen upon the mortgage, it was not avoided by a subsequent bankruptcy.

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He

IN 1854, William Pearson married Elizabeth Josselyn. was seised of a real estate of the value of about 17,400l., subject to a mortgage of 5,000l., and the portion of his intended wife consisted of 1,000l. A settlement was executed prior to the marriage, and dated the 18th of May, 1854, which recited, that upon the treaty for the intended marriage it was agreed, that the fortune or portion of Elizabeth Josselyn, amounting to the sum of 1,000l., should be paid or made over to William Pearson, and that William Pearson should be entitled to receive, for his own use, whatever personal estate should happen, legally or equitably, to be given or come to or devolve on Elizabeth Josselyn during her intended coverture; and that in consideration of the premises he should" settle his real estate upon the trusts thereinafter declared. It then witnessed, that in consideration of marriage, and of the 1,000l. paid to William Pearson, he conveyed his real estate to trustees, upon trust during the joint lives of William Pearson and Elizabeth Josselyn, to pay all the rent thereof to William Pearson, "until he should sell, mortgage, assign, charge, or in any way encumber, all or any part of the same rents, issues and income before the same should have become due and payable, or (whichever event should first happen) until there should be assignment, in fact or by operation of law, of all or any part of the rents, issues and income, by reason of the bankruptcy (1) In re Detmold, Detmold v. Det- [1895] 1 Ch. 505, 64 L. J. Ch. 274, 72 mold (1889) 40 Ch. D. 585, 58 L. J. Ch. L. T. 251. 495, 61 L. T. 21; Mackintosh v. Pojose

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or insolvency of William Pearson, or otherwise howsoever. And from and immediately after William Pearson should sell, mortgage, assign, charge or in any manner encumber *all or any part of the said rents, issues and income before the same should have become due and payable, or there should be an assignment, in fact or by operation of law, of all or any part of the rents, issues and income by reason of the bankruptcy or insolvency of William Pearson, or otherwise howsoever, then upon trust, that, during the joint lives of William Pearson and Elizabeth Josselyn, the said trustees or trustee for the time being should, from time to time, retain " 300l. out of the rents, and pay that sum yearly to Elizabeth Josselyn, for her separate use without power of anticipation, and pay the residue of the rents to Wm. Pearson. Then followed trusts for the benefit of the wife and children of the marriage, which it is unnecessary to state in detail.

The marriage took effect, and there were issue three children. By indenture dated the 28th of July, 1855, Wm. Pearson conveyed the property to Bennet and another, by way of mortgage to secure 2,0001.

On the 8th of April, 1858, Wm. Pearson conveyed also his real and personal estate to a trustee for the benefit of his creditors, and in July following he was adjudged bankrupt.

The trustees of the settlement sold the estate for 17,400l., but being unable to complete, in consequence of the disputes, they filed this bill against Pearson and his wife, children, assignees and mortgagee, to have the rights and interests of the several parties determined.

Mr. Lloyd and Mr. Whitbread, for the plaintiffs the trustees.

Mr. Selwyn and Mr. Woodroffe, for the assignees in bankruptcy, [contended that a rent-charge cannot be so limited, as to take effect in favour of a wife only upon the husband's bankruptcy Lester v. Garland (1), Higinbotham v. Holme (2), Holmes v. Penney (3), Stonor v. Curwen (4), Higginson v. Kelly (5), Phipps v. Lord Ennismore (6). The settlement is only good to the extent of the wife's jointure].

Mr. Follett and Mr. Turner, for the mortgagees.

Mr. R. Palmer and Mr. Regnier Moore, for the wife and children. [Their argument was substantially adopted in the

judgment.]

Mr. Selwyn, in reply. (1) 35 R. R. 146 (5 Sim. 205). (2) 12 R. R. 146 (19 Ves. 88). (3) 112 R. R. 49 (3 K. & J. 90).

(4) 35 R. R. 156 (5 Sim. 264).
(5) 12 R. R. 28 (1 Ball & B. 252).
(6) 28 R. R. 27 (4 Russ. 131).

BROOKE

T.

PEARSON.

[182]

[183]

[184].

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evil, if in cases which are the proper subjects of an action for damages, or in cases of assumpsit upon an agreement of some sort, a party could come here for a specific performance of it, or for damages; thus throwing upon a court of equity the functions which properly belong to a jury. I think this is not the meaning of Sir Hugh Cairns' Act, and that it is not desirable to extend it to such cases.

This is a matter proper for the determination of a court of law, the questions being, first, whether an action of assumpsit will lie upon an agreement to borrow money, and secondly, the amount of the damage which the plaintiff has sustained.

I am of opinion that the bill must be dismissed with costs.

BROOKE v. PEARSON (1).

(27 Beav. 181-185; S. C. 5 Jur. N. S. 781; 7 W. R. 638.)

By a marriage settlement a rent-charge out of the husband's property was to become payable to his wife if he mortgaged it or became bankrupt. He mortgaged it first and afterwards became bankrupt: Held, that a valid rent-charge having arisen upon the mortgage, it was not avoided by a subsequent bankruptcy.

He

IN 1854, William Pearson married Elizabeth Josselyn. was seised of a real estate of the value of about 17,400l., subject to a mortgage of 5,000l., and the portion of his intended wife. consisted of 1,000l. A settlement was executed prior to the marriage, and dated the 18th of May, 1854, which recited, that upon the treaty for the intended marriage it was agreed, that the fortune or portion of Elizabeth Josselyn, amounting to the sum of 1,000l., should be paid or made over to William Pearson, and that William Pearson should be entitled to receive, for his own use, whatever personal estate should happen, legally or equitably, to be given or come to or devolve on Elizabeth Josselyn during her intended coverture; and that in consideration of the premises he should" settle his real estate upon the trusts thereinafter declared. It then witnessed, that in consideration of marriage, and of the 1,000l. paid to William Pearson, he conveyed his real estate to trustees, upon trust during the joint lives of William Pearson and Elizabeth Josselyn, to pay all the rent thereof to William Pearson, "until he should sell, mortgage, assign, charge, or in any way encumber, all or any part of the same rents, issues and income before the same should have become due and payable, or (whichever event should first happen) until there should be an assignment, in fact or by operation of law, of all or any part of the rents, issues and income, by reason of the bankruptcy (1) In re Detmold, Detmold v. Det- [1895] 1 Ch. 505, 64 L. J. Ch. 274, 72 mold (1889) 40 Ch. D. 585, 58 L. J. Ch. L. T. 251. 495, 61 L. T. 21; Mackintosh v. Pojose

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