vised and verily believes, any right or title to the production of, or any interest whatever in, the letters, papers, and writings in the said schedule mentioned, or any of them." The answer then proceeded to deny, that, save as therein and in the schedule particularly mentioned, the defendant had, or ever had, in his possession or power, or in that of his solicitors or agents, any deeds, letters, &c. (following the words of the interrogatory in the bill) relating to the matters in the bill mentioned, or any of them, or whereby the truth of such matters, or any of them, would appear; and submitted, whether, under the circumstances therein appearing, the defendant ought to be compelled to produce the letters, papers, and writings then in his possession or power, for the purposes in the bill mentioned, and claimed the benefit of the several matters and things therein appearing, as fully as if the defendant had pleaded the same, or had demurred to the bill. The plaintiff now made the usual motion for the production of the several documents admitted by the defendant in his answer, and the schedules thereto, to be in his custody, possession, or power. The nature of the documents comprised in the first and second parts of the schedule sufficiently appears from the statements relative to them in the an swer. Those included in the third part were the papers and pleadings in the action and in this suit; and, as to them, no question was now raised. Bethell, for the motion.-This answer falls far short of what it ought to contain in order to protect the defendant from the production of the documents required: the defendant's statement, that they do not contain evidence in support of, nor are in any manner material to, the plaintiff's case in the action, is not positive, but merely upon advice and belief, which is not sufficient. (Bannatyne v. Leader, 10 Sim. 230). As to the letters alleged to be confidential communications, there is a failure in the body of the answer of what is essential to non-production, viz. that they relate to the matters in the suit. Stuart and Busk, for the defendant, contra.-The first question is, whether the evidence of the plaintiff at law is to be produced to the plaintiff in equity, the latter having, as the circumstances here shew must be the case as to the documents in the first part of the schedule, no joint interest with the defendant in it. (Bolton v. The Corporation of Liverpool, 1 My. & K. 88). The defendant avers that these documents are not material to the plaintiff's case. In Bannatyne v. Leader, the whole point upon which the plaintiff's title turned was the act of bankruptcy. [Vice-Chancellor.-The question there was, whether there was anything substantially different in equity from what there was at law.] That was a bill for relief. Here the plaintiff has not any positive title to make out, but only requires discovery. There was no statement in the answer in Bannatyne v. Leader that the documents were evidence of the defendant's own title, and only an averment upon belief, that did not affect the plaintiff's title; but here the defendant swears distinctly that the letters in the first part of the schedule are of great importance to the defendant's claim in the action, and contain evidence positive evidence-on which the defendant mainly relies. What is sworn to as advice is, that the defendant is advised to make use of them as evidence. Then, as to the documents in the second part of the schedule, it is sworn that all of them are private and confidential communications between the defendant and his legal advisers: they are, therefore, protected. (Bolton v. The Corporation of Liverpool, 1 My. & K. 88; Nias v. The Northern and Eastern Railway Company, 3 My. & C.355; Holmes v. Baddeley, 1 Phil. 476). [They also referred to Knight v. Lord Waterford, (2 You. & C., Exch. Rep. 22), and Pearse v. Pearse, (1 De G. & Sm. 12).] Bethell, in reply, was heard only as to the documents VICE-CHANCELLOR.-The documents comprised in the first part of the schedule may contain evidence for the defendant, but they may also contain evidence for the plaintiff. [His Honor read the passages in the answer relative to these documents, and continued:-] The defendant states his belief, as to these documents, tha they do not contain any evidence in support of the plaintiff's case at law; but you cannot test the proof o what is stated to be believed, without referring to the documents themselves: there is no other mode of put ting that belief to the proof. The documents, there fore, in the first part of the schedule must be produced the others are, I think, protected. VICE-CHANCELLOR KNIGHT BRUCE'S COURT CLIVE V. BEAUMONT.-July 19 and Aug. 1, 1848. Pleading-Vendor and Purchaser— Lessor's TitleWaiver. A Bill filed by a Vendor for specific Performance of an Agreement for the Purchase of a Leasehold House, stating various Facts on which the Plaintiff relied as shewing a Waiver by the Purchaser of the Right to the Lessor's Title, but not in Words stating or chargin such Waiver, was dismissed, although the Court was Opinion that the Defendant had, in fact, waived h Right. The bill in this case was filed by a vendor of a leas hold house for specific performance of the agreemen At the hearing of the cause, the usual reference wi directed to the Master as to the title. The defendant the purchaser, carried in objections to the title befor the Master; one of which objections was, that the vendor had not produced the lessor's title. The freehold being vested in a corporation, the vendor was unable to meet the objection, and, with a view of getting a qualified reference to the Master, so as to exclude any inquiry into the freehold title, a petition of re-hearing was presented by the plaintiff, grounded on the alleged fact, that the purchaser had, by his acts and conduct, waived his right to require the lessor's title. All the facts on which the vendor relied as constituting the waiver were stated in the bill; but it was not stated or charged in the bill, that the defendant had waived his right to require the production of the lessor's title. Walpole and Rasch, for the petition, contended, that, in pleading, it was not necessary to state in words an inference either of law or of fact to be drawn from the facts set out and stated upon the face of the pleadings themselves; and that, if a party so acted as to imply that he waived an objection, on which by law he would be entitled to rely, he could not subsequently raise that as an objection to the plaintiff's title to the relief he sought. They cited Jerrard v. Sanders, (2 Ves. 187, 454); Burroughs v. Oakley, (3 Swan. 159, 168, 171); Fleetwood v. Green, (15 Ves. 594); Fordyce v. Ford, (+ Bro. C. C. 495); Warren v. Richardson, (You. 1); Haydon v. Bell, (1 Beav. 337). Wigram and Piggott appeared for the defendant. KNIGHT BRUCE, V. C.-The right of a purchaser is given by law to have the title shewn as a condition to the right of the vendor to enforce his contract. It is not charged, nor is it even alleged or stated in the bill, that the defendant, the purchaser, has waived that right. He is entitled to have his attention specifically called to the circumstances upon which reliance is intended to be placed by the plaintiff, in order to shew that he has waived his undoubted right. I am of opinion, that, under the facts shewn here, the defendant' did actually waive his right to the production of the title of the lessor; still I consider, that, as there is no statement or charge that the defendant has so Iwaived his right, I must hold that I cannot entertain referred to in the answer as confidential communicatons. costs not exceeding the deposit. and with LONG. STORIE.-Jan. 31. Church Living-Sequestration-Receiver. The Owner of an Advowson mortgaged it, and also mortgaged the Equity of Redemption, and then sold the Adorn, subject to the Mortgages, and took from the Purchaser a Mortgage of the Advowson for securing the Purchase-money. The Purchaser, to induce the first Mortgagee to allow his Money to remain on the Security, gave him a Warrant of Attorney, and a similar Security to the second Mortgagee, and also mother to the Vendor for the Amount of the Purchasemy; and it was arranged that the first Mortpage's Judgment should have Priority. The Living was subsequently sequestrated, and a Bill was filed by the first Mortgagee for Sale and Foreclosure, and he wed for a Receiver, and for an Injunction to restrain the Defendants, the other Incumbrancers, from compelling Payment from the Sequestrator of the Money in his Hands. The Court held that the Transaction pointed so particularly to making the Judgments and Sequestration a Charge on the Living, as to come within the Prohibition of 13 Eliz. c. 20, and refused the Motion. This was a motion for a receiver, and for an injunction. The bill was filed by John Long against the Rev. John George Storie, Ann Boughton, F. B. Hoare, E. M. Daniel, W. S. Awens, W. Stuart, E. W. Cockell, C. Brookes, J. Howell, J. Burder, and the Rev. James Williams. It stated that the defendant Storie, having purchased the advowson of the living of Camberwell, of the value of about 20007. per annum, mortgaged the Se in 1843 to the plaintiff, Mr. Long, for 12,500l.; that he then mortgaged the equity of redemption to the defendant Ann Boughton, for 1000l.; and that, on the 27th January, 1846, he conveyed the advowson (subject to the two mortgages) to the defendant Williams, For the defendants the following cases were cited, for 15,000; that Williams, the purchaser, having no namely, Alchin v. Hopkins, (1 Bing. N. C. 99), where means of paying the purchase-money, gave to Storie a a composition entered into with a clergyman, in concharge upon the advowson for the 15,000l.; but, to suit sideration that his future income might be received by the convenience of Storie, and to enable him to raise a trustee, and applied in liquidation of his debts, after money in various channels, the charge for 15,000l. providing for a curate, was held to be void, under the was divided into eight parts, and secured by the same stat. 13 Eliz. c. 20. Lord Chief Justice Tindal there number of deeds, all dated the 21st February, 1846, said, that the effect of the instrument, although not and the sums secured by each were agreed to be operating as a direct charge, was an agreement to charge paid rateably: that, in order to induce the plaintiff the profits of the living; and if such an agreement were to allow his mortgage-money of 12,500l. to continue not held to fall within the provisions of the statute, all on the security of the advowson, Williams gave him its purposes might be avoided with the greatest facility. warrant of attorney to confess judgment against And in the earlier case of Newland v. Watkin, (9 Bing. him, Williams, for securing the principal and in- 113), the defendant, a clergyman, had granted a warterest: that he gave like warrants of attorney to the rant of attorney to enter up judgment to secure an andefendant Storie for securing the 15,000, and to the nuity, and it was expressly declared that the plaintiff defendant Ann Boughton for securing her 10007.; and should be at liberty to issue a sequestration. There anall these three documents bore date on the 21st Febru- other party who had a warrant of attorney, which did 7,1846: that it was a part of this arrangement that, not contain any allusion to a sequestration, obtained a whenever execution should be issued under these three rule to set aside the other warrant of attorney, on the warrants of attorney against Williams, the execution ground that it was within the prohibition of the stat. issued on the plaintiff's judgment should have priority 13 Eliz. c. 20; and the Court directed that the holder over the other two; and that, in order to ensure this re- of the former warrant of attorney should not further sult, the judgment papers were deposited with the de-enforce the sequestration he had issued, and made the fendant Daniel, (who had acted in these matters as the rule absolute. priority that, in consequence of these representations and applications, Daniel sent the judgment papers to Hoare for that purpose in December, 1846: that Hoare, by obtaining possession of the judgment papers and issuing the sequestrations, had, in violation of the agreement entered into in February, that the plaintiff's judgment should have priority over the other two, changed the order of them, and made Boughton's sequestration first, Storie's sequestration second, and the plaintiff's sequestration third. The bill prayed a sale or foreclosure of the advowson, and a declaration that the plaintiff was entitled, until such sale or foreclosure, to receive, towards payment of his mortgage-money of 12,5001., all the monies to be received from the income of the benefice under the three sequestrations, in priority to the defendants, and an injunction to restrain the defendants from proceeding against the sequestrator for the recovery of monies in his hands. The plaintiff now moved for the appointment of a receiver over the funds in the hands of the sequestrator, and for an injunction to restrain the defendants from proceeding against the sequestrator, to pay over to them the monies in his hands. The affidavit of Mr. Daniel, who had acted in these matters in February, 1846, as the solicitor for the plaintiff, verified the statement in the bill, that it was part of that arrangement that, whenever execution should be issued against Williams under his warrants of attorney, the plaintiff's execution should have priority over those of Storie and Boughton. Russell and Follett supported the motion. Swanston and Tripp were for the defendants Storie and Hoare. Grove, for Brookes. Prior, for Howell. solicitor of the plaintiff): that, on the 12th March, KNIGHT BRUCE, V. C.-I am of opinion, that the al1846, Storie vacated the living, and, therefore, Williams leged agreement, respecting the judgments and sequespresented himself: that Storie assigned to the defend-trations, points so particularly to making them a charge ants Hoare, Awens, Stuart, Cockell, Brookes, and upon the living, as to bring them within the operation Howell, the several mortgage securities into which the of the cases which have been cited. I am also of opinion, 15,000 had been divided: that, by an indenture dated that the Court cannot, without tainting itself with the 8th May, 1846, Storie assigned to Daniel the war-simony, accede to the present application. The motion rant of attorney for 15,0007. against Williams, in trust must be refused as against all the defendants, and let rateably for the holders of the mortgage securities into the costs be reserved. which the 15,0001. had been divided; that in October, 1846, the defendant Hoare, acting as solicitor for Storie and several of the persons to whom he had assigned his Bortgages on the advowson, represented to Daniel that Was was in a state of embarrassment, and that, uniles sequestrations under the judgments were immediately issued against him, his other creditors would get VICE-CHANCELLOR WIGRAM'S COURT. Demurrer-Injunction-Trespass-Waste. Bill, by a Party out of Possession of Real Estates, against the Party in Possession, and claiming by Title adverse to that of the Plaintiff, stating that the Defendant had been in Possession for Twenty Years, and that the Plaintiff had only recently discovered his Title to the Premises, and had commenced an Action of Ejectment against the Defendant, and praying an Injunction to restrain the Defendant from committing Acts of Trespass, alleged to be productive of irreparable Waste. Demurrer to the Bill allowed, with Costs. A Party out of Possession, claiming Real Estate by Title simply adverse to that of the Party in Possession, cannot be heard in a Court of Equity upon an Application to restrain the Party in Possession from committing Acts of Trespass productive of irreparable Waste, until he has established his Title at Law. The bill, which was filed in February, 1849, stated, that, by virtue of an indenture, dated the 30th December, 1656, and a fine, afterwards levied, in pursuance of a covenant in that behalf contained in the said indenture, certain real estates in Bramhall and other parishes in the county of Chester, and of which Peter Davonport, therein described, was at that time seised in fee, were settled by the said Peter Davonport, to the use of himself for life, with remainder to his first, second, third, and fourth sons, successively in tail male, with remainder to the said Peter Davonport, the settlor, in tail male; and, in default of such issue, then to the use of his right heirs for ever. The bill then contained allegations, stating the successive deaths of the settlor, Peter Davonport, and of his four sons, mentioned in the indenture, and their issue; and from which it appeared, that the issue male of the first four sons of the settlor became extinct in 1829, and that thereupon the plaintiff, as then issue male of the original settlor by lineal descent from a fifth son of such settlor, became entitled to the possession of the settled estates, under the limitation in the settlement to the said Peter Davonport and his heirs male. The bill further stated, that, on the extinction of the issue male of the four sons, named in the indenture of 1656, of Peter Davonport, the settlor, Sir Salisbury Pryce Humphreys Davenport, Bart., by virtue of some pretended title, unknown to the plaintiff, entered into the possession of the settled estates, and continued in such possession up to the time of his death in 1845; and that thereupon the defendant, Dame Maria Davenport, his widow, by virtue of some pretended title unknown to the plaintiff, entered into possession of the same premises, and had ever since remained in such possession. The bill then alleged, that the plaintiff did not discover his title to the said settled estates and premises till within a very recent period; and that, as soon as plaintiff's circumstances would allow, that is, on the 10th January, 1849, the plaintiff commenced an action of ejectment against the defendant for the recovery of the said premises, and that such action then stood for trial at the then next Chester Assizes. The bill then alleged, that the defendant intended to cut down and fell the timber and other trees standing on the said lands and premises, and to sell the same, and to apply the monies to be produced and to arise from such sale to her own use and benefit; and that, in pursuance of such her threat and intention, the said defendant had caused timber and other trees to be lotted and marked, and had also advertised such timber and other trees to be sold by auction on the 14th of the then present month. The bill then charged, that the said timber and other trees were of great value, i. e. of the value of 2000l. and upwards; that such underwood and trees were very ornamental, and added greatly to the beauty of the estates; and that, if the defendant were permitted to carry her threat into execution, irreparable injury would be done to the estates. The bill prayed, that the defendant might be restrained by injunction from cutting down or felling, or otherwise injuring, any of the timber or other trees then standing on the said estates and premises, and from selling or otherwise disposing of the same; and that the defendant might be directed to keep an account of all monies received by her for or on account of any timber which she might have felled and so sold, or otherwise disposed of. To this bill the defendant put in a general demurrer. Sir John Romilly, S. G., and Hare, in support of the demurrer. The title set up by the plaintiff being simply adverse to that of the defendant, who is in posses sion, the Court cannot interfere with the legal ownership of the latter till the question of title has been decided at law. Although courts of equity have sometimes interfered by injunction in cases of waste, or of trespass attended with irreparable injury, yet they have never done so unless there has been some privity between the parties to justify their interposition, and an account has then been directed, as incident to the injunction, to prevent a multiplicity of suits. (Jones v. Jones, 3 Mer. 161, 173; Robinson v. Lord Byron, 1 Bro. C. C. 588; Hanson v. Gardiner, 7 Ves. 308; Armitage v. Wadsworth, 1 Madd. 189; Pilsworth v. Hopton, 6 Ves. 51; Mortimer v. Cottrell, 2 Cox, 205; Norway v. Rowe, 19 Ves. 144; Smith v. Collyer, 8 Ves. 89; Atkinson v. Henshaw, 2 Ves. & B. 58; Vice v. Thomas, in the Court of Stannaries, reported by Mr. Smirke; also in 4 You. & C. Exch. Cas. 538; Haigh v. Jaggar, 2 Coll. 231). The present bill is simply an ejectment bill; and a bill in equity does not lie for the recovery of land, or of any interest in land, upon a purely legal title. All that the Court can do in such cases is to remove a legal impediment, as an outstanding term, or other technical difficulty, in the way of the trial at law, but it cannot go further. It is submitted, upon the authorities, that a party in possession, as against any party out of possession claiming by title simply adverse, may deal with the property as he pleases till his title has been displaced at law. Bacon and Bagshawe, for the plaintiff.-The authorities shew, that trespass, attended with irreparable injury, is a ground for coming to this Court. (Mitchell v. Dors, 6 Ves. 147; Earl Cowper v. Baker, 17 Ves. 128; Thomas v. Oakley, 18 Ves. 184). In Vice v. Thomas, the question was not a question of injunction, but of relief by delivery up of possession. The bill in that case was a mere ejectment bill, seeking a decision as to the title at law, and, consequently upon that, the relief of an account. A mere injunction against trespass is not relief, consequent or dependent on the right of possession, within the meaning of Vice v. Thomas; nor is it necessary to shew the plaintiff's possession, for the purpose of an injunction only against trespass, on the ground of irreparable waste. In the case of Jones v. Jones, the plaintiff was out of possession; but it does not appear from the report in Merivale, that there was an allegation of the commission or threat of any waste or destruction. Hare read an extract* from the bill in Jones v. Jones, * The extract was as follows:-Jones v. Jones, 3rd July, 1816. "And your orator further sheweth, that the said Thomas Jones, the said residuary legatee named in the said pretended will, with the privity and consent of the said executors and trustees, soon after the death of the said William Jones, committed several acts of waste and destruction in and upon the several parts of the said real property, and particularly that the said Thomas Jones has caused to be pulled down a tion of the widow Ruffles, and has sold the materials thereof, large dwelling-house at Sudbury aforesaid, late in the occupa and applied the monies arising therefrom to his own use and benefit; and that the said Thomas Jones has also caused to be pulled down the dwelling-house and premises in which the said W. Jones resided at the time of his death, and also a cottage and farm at Highlanders Farm, situate &c.; and that he and the said other trustees and executors threaten and intend to commit several other acts of destruction and waste in and upon the building and other parts of the said real estate and premises.". at the Record Office, from which it appeared that the bill did contain an allegation of waste. Bagshawe.-In Haigh v. Jaggar, the injunction was refused, the circumstances of the case being peculiar; but the Vice-Chancellor, (Knight Bruce), in his judgment in that case, made the following observations:-"I am not convinced, that, where a man is in possession, however full and complete, of an estate, simply and merely adverse to that of another by whom the estate is, whether at law or in equity, claimed against him, without any privity between them, such a state of things, if the party in possession, by his answer, whether truly or untruly, Swears his title to be just and valid, or that of his adversary to be unjust and invalid, does, of necessity, prevent a court of equity from interfering (before any judgmen: at law or decree in equity) to restrain the party in possession from stripping the estate of its timber, pulling down the mansion-house upon it, or other such acts. It is, I think, certainly true, that the Court of Chancery does not treat questions of destructive damage to property now exactly as it did forty or fifty years back; that its protection, in such respects, is more largely afforded than it then generally was." It is submitted, that, in a case in which the defendant, by the form of pleading she has adopted, must be taken to have admitted the title of the plaintiff, the Court, notwithstanding the possession of the defendant, will extend the same protection to the property, pending the litigation as to the title, as it does in the case of personal estate. It cannot be that a party in possession, confessedly under a wrongful or a doubtful title, is to be permitted to use such possession, to the manifest injury of the property. The Solicitor-General was not called on to address the Court in reply. posses Sir JANES WIGRAM said, that, if the question were untouched by authority, he should have felt no hesitation about granting an injunction upon the bill as it stood. The jurisdiction of this Court to interfere by injunction with real estate arose, no doubt, originally, in cases of waste only, where there was privity between the parties, and was afterwards extended to cases of trespass and other cases of a similar description; but in neither class of cases did it appear ever to have been exercised, unless at the instance of the party in possession against a party alleged to be invading his rights. Interference by injunction appeared to have been confined to cases where the party sought to be restrained by no means intended to invade the right of the other, but had believed himself to be merely exercising a right of his own. In the cases of railroad companies, the acts of the companies gave them a right quite consistent with the right of the landowner to the sion of the land; but the question being as to the extent of the power given by the particular act, the Court, in favour of the landowner, examined the act to see whether the right assumed by the company was or was not within the power given to them by the act. So, in the analogous case of adjacent mines, one party was said to be working into the mine of another, but without intending to invade it; and the question always was, whether the works complained of were on one side of the boundary line or on the other. The party said to be committing trespass intended to keep on the right side of the boundary line; and, from the expressions used by the Court in such cases, it would appear as though it were trying to escape from a technical rule for the better protection of the property. The Court, in such cases, excused certain acts, saying, that the party charged with committing a trespass was claiming wder colour of a right not inconsistent with the right of the other party, the question being as to the position of the line dividing their rights. Whatever the origin of these refinements in cases of mines might be, there did not appear to be any case in which a party coming to this court against another in possession, who claimed to be entitled to cut timber, had ever obtained an injunction to restrain him from so doing till his title had been established at law. In the case before the Court, the defendant had been in possession twenty years, and the bill contained no averment that she did not claim a right to the possession, whether she might ultimately succeed in defending that possession or not. The case would appear to be a proper case for an injunction if there had been an admission of the title; and the defendant, by demurring, had, in substance, admitted the title on the record, whatever might be the result of the trial. The difficulty, however, was, how, in the face of the decision in Jones v. Jones, (3 Mer. 161), the Court could do otherwise than follow the decision in that case. It was true that there were many grounds of demurrer in that case, but the Court had refused to interfere for the purpose of staying waste as between heirat-law and devisee, while their adverse rights were in course of litigation. In his judgment in that case Sir William Grant had said, he could not see a very good reason why the Court, which interferes for the preservation of personal property pending a suit in the ecclesiastical court, should not interpose to preserve real property pending a suit concerning the validity of the devise; but that, as a condition of such interference, the Court would certainly expect it to be shewn, that the party applying was proceeding with due expedition to bring the question to a decision; whereas the plaintiff in that case had waited two years and a half after the commission of the act of waste complained of, without bringing his action. In the case then before him, (the Vice-Chancellor), it did not appear how long the plaintiff had waited before bringing his action of ejectment. All that the bill alleged was, that he had only very recently discovered his title to the premises in question; but much weight could not be attributed to such expressions as against a party who had been in possession nearly twenty years. Though it was to some extent to his surprise and regret that the law should be in its present state, yet he could not, on demurrer, overrule the decision of Sir W. Grant. The plaintiff, if he thought he could sustain his bill, might have recourse to a higher tribunal; but the principle was well settled, that a party out of possession must establish his right at law before he comes into equity.-Demurrer allowed, with costs. COURT OF QUEEN'S BENCH. SITTINGS IN BANC AFTER MICHAELMAS TERM. LEGGE v. HARLOCK.-Dec. 18, 1848. Declaration in Debt set out a Deed, by which it was provided, that certain specified Work was to be done by Plaintiff for 4181., but Defendant was to be at liberty to order additional Work, or to diminish that specified, and Payments or Deductions were to be made accordingly. It was stipulated, that, if the specified Work was not finished on the 23rd October, Plaintiff should pay 11. for every Day used beyond the 23rd October as liquidated Damages; provided, that in case Defendant should require additional Works, Plaintiff should be allowed such extra Time beyond the 23rd October as might be necessary for doing and completing the same. Averment, that Defendant required additional Works, the Value of which was 841., and that he made Diminutions to the Value of 21., and that Plaintiff would have finished the specified Works on the 23rd October, but for the additional Works ordered; that he completed the whole within Thirty-one Days after the 23rd October, and that such extra Time was necessary to complete the additional Works. Plea, as to 221., Parcel of the Debt, and as to the extra Time, that Nine Days only beyond the 23rd October were rendered necessary by the additional Works, but that Thirty-one Days were used, whereby Plaintiff became liable to pay 221. for the Twenty-two Days not rendered necessary, and Set-off of so much:-Held, on special Demurrer, that Plaintiff was liable to pay 11. per Day for every Day used beyond the 23rd October, and not rendered necessary by the additional orks; and that, as the Declaration claimed the Value of the additional Works as a Debt and liquidated Sum, Defendant was entitled to set off the 221. against it. Held, also, that it was no Objection to the Plea that it was pleaded to the extra Time. upon a reasonable valuation thereof, anything thereinbefore contained to the contrary notwithstanding. And also, that if the said barn, waggon-shed, and granary should not be erected and finished on the 23rd October then next as aforesaid, the plaintiff should be subjected to, and should pay to the defendant, the penalty or forfeiture of 17. for each day that might be used for completing the said works over and beyond the said 23rd October then next; such penalty to be recovered as liquidated damages in any of her Majesty's Debt.-The declaration stated, For that whereas, be- courts of record. Provided always, that in case the fore the commencement of this suit, to wit, on the defendant should require any additional works or things 11th October, A.D. 1847, by a certain deed then made to be done by the plaintiff besides those mentioned in by and between the plaintiff of the one part, and the the said drawing and specification, in such case the defendant of the other part, (profert), the plaintiff did, plaintiff should be allowed so much extra time befor himself, his heirs, executors, and administrators, yond the said 23rd October then next, as might be necovenant and agree with the defendant, his executors, cessary for doing and completing the same. Averment, administrators, and assigns, for the consideration there- that the plaintiff did, immediately after the execution inafter mentioned, that he, the plaintiff, would, on or of the said deed, to wit, on the said 11th October, A.Ð. before the 23rd October then instant, erect, build, and 1847, commence the erection and building of the said completely finish, upon the farm and premises of the barn, waggon shed, and granary upon the said farm and defendant, situate at R., a barn, waggon-shed, and premises of the defendant, according to the said drawgranary, according to the drawing and specification to ing and specification to the said deed annexed, and did the said deed annexed; and also do, perform, and exe- provide necessary and proper materials, labour, scaf cute, or cause to be done, performed, and executed, all folding, and other things necessary for erecting and the said works in a workmanlike manner, and to the finishing the said works, except the earth necessary for satisfaction of the defendant, or such surveyor or archi- filling in the floors of the barn as aforesaid; and that tect as he should appoint; and also would provide proper the plaintiff was then proceeding to completely finish and sufficient materials, labour, scaffolding, and other the same on or before the said 23rd October next after things necessary for erecting and finishing the said the making of the said deed; and that whilst he, the works, except the earth necessary for filling in the plaintiff, was employed in the erection and building floors of the said barn, which should be found and de- of the said barn, waggon-shed, and granary, and before livered by and at the expense of the defendant. Cove- the said 23rd October, the defendant did require divers nant by the defendant, that he would pay, or cause to additional works and things to be done by the plaintiff be paid, unto the plaintiff the sum of 4187. as soon as besides those mentioned in the said drawing and specithe said barn, waggon-shed, and granary should be com-fication, which said additional works and things, so repletely built and finished, to the satisfaction of the defendant, or such surveyor or architect as he might appoint; and it was thereby agreed by the said parties, that in case any defective or inferior materials should be used in the said works, or in case any defective workmanship should be discovered therein, he, the plaintiff, would, on notice thereof in writing under the hand of the defendant, or of such surveyor or architect as he might appoint, forthwith cause all the said defective and inferior materials, whether worked into the said works or not, and all such defective workmanship, to be removed and replaced by good materials and workmanship; and that, in case the plaintiff should not, within forty-eight hours after such notice, proceed to remove such defective or inferior materials, or to make good such defective workmanship, it should be lawful for the defendant, or such surveyor or architect as he might appoint, to cause the same to be removed and made good, and the costs and charges thereby occasioned should be deducted out of the said sum of 4187. to be paid to the plaintiff. And it was thereby further agreed between the said parties thereto, that no alteration of, or deviation from, the works mentioned and described in the said drawing and specification, which should be made at the request or by the direction of the defendant, his executors, administrators, or assigns, or his architect or surveyor, should vitiate or make void that agreement; but that, in case the defendant should direct any more work to be done to the said barn, waggon-shed, and granary than is contained in the said drawing and specification, then the said defendant should pay, or cause to be paid, unto the said plaintiff so much money as such extra work and the materials used therein should amount to; and that, in case it should be thought proper by the defendant to direct or cause any part of the work contained in the said drawing and specification to be diminished or omitted, then the plaintiff should deduct and allow out of the said sum of 4187. so much money as the works so to be diminished or omitted should amount to, quired by the defendant to be done by the plaintiff, necessarily required a long space of time, to wit, the space of thirty-one days of extra time beyond the said 23rd October, for the doing and completing the same. That the defendant did, during the progress of the said work, and before the said 23rd October, direct more work to be done to the barn, waggon-shed, and granary than was contained in the said drawing and specification, the value of which said work so by the defendant directed to be done, and the materials used therein, amounted to a large sum of money, to wit, the sum of 847. That the defendant did, after the making of the said deed, and during the progress of the said work, and during the erection of the said barn, waggon-shed, and granary, to wit, on the 20th October, A.D. 1847, and on divers other days and times before the said 23rd October, direct and cause a certain part of the work contained in the said drawing and specification to be diminished, and a certain other part of the said work to be omitted, and that the deduction out of the said sum of 418/., in respect of such diminution and omission, upon a reasonable valuation thereof, to which the defendant is entitled, under and by virtue of the provision in the said deed in that behalf, amounts to a cer tain sum of money, to wit, the sum of 21. That, but for the said extra work, and the additional works and things so by the defendant required to be done as aforesaid, he, the plaintiff, would have completely finished the said barn, waggon-shed, and granary, according to the said drawing and specification to the said deed annexed, except so far as the defendant required the same to be diminished and omitted as aforesaid, according to the true intent and meaning of the said deed. That the plaintiff did within a certain time, to wit, thirtyone days from and, after the said 23rd October, in a workmanlike manner, and to the satisfaction of the defendant, erect, build, and completely finish the said barn, waggon-shed, and granary upon the said farm and premises of the defendant, according to the draw |