MUCKLESTON law, by a Roman Catholic in trust for himself. v. BROWN. [ *69 ] Afterwards he turns Protestant; and desires a discovery as to his own act. The defendant put in a plea of the Statute of Frauds; but by answer admitted the trust. Lord HARDWICKE is made to say, that upon the admission he would act. I do not know, whether he did act upon it; but it is questionable, whether he should; for there is a great difference between the case of an heir coming to be relieved against the act of his ancestor in fraud of the law, and of a man coming upon his own act under such circumstances. It is there said, it might be different, if it had come on upon demurrer. The reason given is, that as this assignment was done in fraud of the law, and merely in order to evade the statutes, it was doubtful, whether at the hearing the plaintiff could be relieved. Lord HARDWICKE means to say, that, if the defendant admits the trust, though against the policy of the law, he would relieve but if he does not admit the trust, but demurs, he would do, what does not apply in the least to this case; the plaintiff stating, he had been guilty of a fraud upon the law, to evade, to disappoint, the provision of the Legislature, to which he is bound to submit, and coming to equity to be relieved against his own act, and the defence being dishonest, between the two species of dishonesty the Court would not act; but would say, "Let the estate lie, where it falls." That is not this case. Then as to the principle: why should it not be so? Surely the law will not permit secret agreements to evade what upon grounds of public policy is established? Is the Court to feel for individuals, and to oblige persons to discover in particular cases, and not to feel for the whole of its own system, and compel a discovery of frauds, that go to the roots of its whole system? Suppose, the trust was to pay 100l. out of the estate; and the devisee undertakes to pay it, if it is not inserted in the will: this Court would have compelled an answer, on the ground, that the testator would not have devised the estate to him, unless he had undertaken to pay that sum. The principle is, that the statute shall not be used to cover a fraud. If that is so between individuals and upon an individual claim, there is surely a stronger call upon the justice of the Court to say upon a private bargain between the testator and those who are to take V. BROWN. apparently under his will, which is to defeat the whole of the MUCKLESTON provisions and policy of the law, that they shall be called on to say, whether they took the estate, as they legally may not do, for charitable purposes. It is very difficult to say, that, if the justice due to individuals obliges them to disclose in the one case, the justice due to the public shall not oblige them in the other. I am very glad to find upon the authorities, that they are to make the disclosure. It is difficult to say in sound argument, that the principle of policy is not sufficient: but I do not mean to decide upon this. The other grounds, that I first stated, are quite sufficient. If I am bound to say, whether the bill stating the letters does or does not make a difference, I can find no authority, that the defendants shall not answer, whether they put the declaration of trust in writing. Upon the former of these grounds therefore I over-rule this demurrer.+ WALKER v. FROBISHER.‡ Award set aside: the arbitrator having received evidence after notice to the parties, that he would receive no more; in which they acquiesced. THE object of the bill in this cause was to quiet the plaintiff in the possession of his mill; after he had recovered damages in two actions against the defendant for using his mill in a manner, that impeded the use and enjoyment of that belonging to the plaintiff. When the cause came on before Lord Rosslyn, his Lordship with the consent of the parties directed a reference to Mr. Busfield to settle the matter in difference between the parties, and award such alterations to be made in the defendant's works as to him (Mr. Busfield) should seem necessary; regard being had to their state previous to June, 1794. The arbitrator by his award found, that the working of the plaintiff's mill had not been impeded to any material extent, if + This case was afterwards argued upon the answer, admitting the trust; and, after standing some time for judgment, was compromised. Moseley v. Simpson (1873) L. R. 16 Eq. 226, 234, 42 L. J. Ch. 730. 1801. May 7. ELDON, L.C. [70] WALKER v. FROBISHER. [ *71 ] at all, by the alterations of the defendant's; regard being had to their state previous to June, 1794; and he directed, that the defendant's works should be continued in the same state, as they were; but that, as they were made of wood, and easily alterable, certain parts of the machinery should be made of cast iron. The award did not direct any other alteration. A motion was made to set aside this award upon the following facts disclosed by two affidavits. At one of the meetings the arbitrator expressed his opinion, that the inlets to the defendant's mill were too deep; but not so much too deep as the plaintiff insisted they were; and that the truth lay between them. After several witnesses had been examined on both sides in the presence of the parties or their attorneys, the arbitrator advised the parties to produce no more witnesses; declaring his determination to examine no more witnesses in the cause: but on the day, which he had settled for finally arranging his award, and on which he had directed the surveyors to attend, whom he was authorised to call in, and had called in, for the purpose of assisting him, three persons attended on the part of the defendant; and the arbitrator examined those three persons; and took minutes of what they said; although no person attended on *behalf of the plaintiff; and the arbitrator then made his award, as above stated. The arbitrator by his affidavit stated, that he had examined all the witnesses produced before him on either side at different meetings for that purpose; and having fully made up his mind on the subject on the 3rd of February he appointed the surveyors to meet him on the 10th for the purpose of preparing the award: but, one being unable to attend, he had adjourned to a future day to make his award. On the 10th of February several persons came into the room, where the deponent and the surveyors were, unattended by the solicitors on either side; and did mention some circumstances relative to the matters in dispute; of which the deponent believes he made some minutes : but they were at the same time told by him, that he had previously satisfied his mind on the subject; and he should proceed to make his award. The affidavit farther stated, that nothing, which passed, had WALKER บ. the least weight with him; and that the award contains his decided opinion before the 10th of February and since; and he denied to FROBISHER. the best of his recollection having said at any meeting, that the defendant's inlets were too deep, or having expressed any opinion whatsoever on the subject. Mr. Sutton and Mr. Heald, in support of the motion: They contended that the arbitrator had not pursued his authority; and the answer admitting, that the mills were not in the same state, as they were previously to June, 1794, was conclusive against the defendant; and the arbitrator was bound to award such alteration as would bring them to that state. referred to Morgan v. Mather (2 Ves. J. 15) 2 R. R. 163.] They Mr. Lloyd and Mr. King, in support of the award : Urged, that the parties had produced all the evidence in their power on either side; and the affidavits do not insinuate, that any new evidence was or could have been pronounced. They insisted, that the award was consonant to the order of reference, to award such alterations as to the arbitrator should seem necessary; and there was no necessity for him to award any alteration; if he did not think it requisite. Upon the last point they were stopped by the LORD CHANCELLOR; who said, in that respect the arbitrator had properly exercised his power. LORD CHANCELLOR : This award cannot be supported. The arbitrator, having been named by the late Lord Chancellor, is, I am well assured, a most respectable man: but he has been surprised into a conduct which upon general principles must be fatal to the award. It does not appear to me, that he has by the award improperly exercised the authority given by the order of reference: but on account of the transaction, that took place on the 10th of February, the award cannot stand. He had examined different witnesses at different times in the presence of the parties. Не recommended to them not to produce any more witnesses. To that recommendation they accede; and in effect say, "Upon the + Ex relatione. R.R.-VOL. V. Ex relatione. [ *72]] view of what is disclosed to you do what is right between us." After this he hears these other persons; and he admits, he took minutes of what was said. It did not pass as mere conversation. It does not appear, that he afterwards held any communication with the other party; or disclosed what passed to him: but the arbitrator swears, it had no effect upon his award. I believe him. He is a most respectable man. But I cannot from respect for any man do that, which I cannot reconcile to general principles. A Judge must not take upon himself to say, whether evidence improperly admitted had or had not an effect upon his mind. The award may have done perfect justice: but upon general principles it cannot be supported. 1801. April 22, 24. May 11. ELDON, L.C. [73] PULTENEY v. WARREN.† Account of mesne profits, since the title accrued, decreed against executors upon the special ground, that the plaintiff was prevented from recovering in ejectment by a rule of the Court of law and by an injunction at the instance of the occupier; who ultimately failed both at law and in equity. The simple case of the death of the occupier will not sustain a bill for an account of the mesne profits under the head of accident. THIS cause arose in consequence of the final decision of the causes of Lady Cavan v. Pulteney, and Lord Darlington v. Pulteney, concerning the validity of the leases granted by the late General Pulteney of several houses in Sackville Street, Piccadilly. The result of those suits being against the leases, this bill was filed against the executors of the late Dr. Warren, one of the tenants, for an account of the mesne profits in respect of the house occupied by him from July, 1791, when the possession was required by the plaintiff, to July, 1797. The circumstances and dates were these. Upon the 2nd of July, 1790, Dr. Warren and the other tenants received notices to quit. Upon the 5th of July, 1791, a formal demand to quit was served upon them. In Trinity Term 1791 an ejectment was brought in the Court of King's Bench by Sir William Pulteney + Phillips v. Homfray (1883) 24 3 R. R. 8 (2 Ves. J. 544). Ch. D. 439; 52 L. J. Ch. 833. |