1853. Rolls. LEESON V. LEESON. July 11. Judgment. to an injunction bill. It would have been a much more convenient course to have brought this question before me on the injunction motion, when I had all the facts before me. His Honour, having been afterwards referred to his decision in Anderson v. Dowling (a), said, on a subsequent day (July 11), that he had read the cause petition, and should follow that decisionthis not being merely an injunction suit to stay the proceedings at law. The usual order for security for costs was made. (a) 12 Ir. Eq. Rep. 307. July 12. CARTER v. UNIACKE. In 1840, the IN the year 1840, the petitioner purchased from the respondent a petitioner con- leasehold interest for lives, for £900. Pending the investigation of tracted to pur chase a lease- title, £500, a portion of the purchase-money, was paid. It turned hold interest from the re- out, on search, that there was a recognizance on record for £10,000, spondent, and went into pos- acknowledged by the respondent in the matter of Lord Lanesborough session, and paid a part of a lunatic; and the petitioner was advised not to complete the purthe purchase contract was money. The chase until the recognizance was vacated. However, he went into not completed, possession, and paid the respondent the interest on £400, the balby reason of a ance of the purchase-money. In 1850, the lunatic died, and the recognizance being outstanding which petitioner, being informed that the final account of the receiver was about to be passed, and that the recognizance would be vacated, at the urgent request of the respondent, gave a promissory note for the balance of the purchase-money, £400. 17s., on the was to be vacated at the death of a lunatic, which occurred in 1850, when the petitioner, at the respondent's instance, gave a promissory note for the balance of the purchase-money. A sum was found due on foot of the recognizance, for which judgment was entered. The lands were in the meantime evicted for non-payment of rent but the time for redemption had not expired. The Court refused an injunction against proceeding on the promissory note, except on the terms of lodging the amount of it in Court. condition that he should not be called on to pay the amount of the note until the title to the lands was made out to the satisfaction of the petitioner's Counsel. On the passing of the respondent's final account, a balance of upwards of £5000 was found against him, and proceedings were taken on the recognizance, and judgment marked for £10,000. The respondent brought an action on the promissory note. An ejectment for non-payment of rent had been brought against the lands, and the habere was executed in May 1853. The petitioner filed a cause petition, praying for an injunction to restrain the respondent from further proceedings at law on the promissory note, and for an account of the sum advanced by petitioner, and the interest thereon, and an account of the rents received by him, alleging that a large balance would be found to be due to him. 1853. Rolls. CARTER V. UNIACKE. Statement. Mr. Hans H. Hamilton (with whom was Mr. J. R. Crampton) moved for the injunction. They relied on Right v. Griffith (a); Osborne v. Harvey (b); Stevens v. Geoffry (c); Burroughs v. Oakley (d). Mr. Hamilton Smythe, for the respondent, opposed the motion. The MASTER OF THE ROLLS. It is not necessary for me to decide the question which arises in this case. I think it is a case for an injunction, on the terms of the plaintiff bringing the amount of the promissory note into Court, but not otherwise. The suit is a very difficult one to sustain, and I do not exactly understand the equity on which the petitioner relies. The rule, where the purchase-money has been paid-and it is the same where a part of the purchase-money has been paid-is thus stated by Lord St. Leonards, in his Concise View, p. 407:-"Although the purcha (a) 1 Ch. Rep. 695. (b) 1 Y. & C. 116. Argument. Judgment. 1853. Rolls. CARTER v. UNIACKE. Judgment. ser has paid the money, yet, if he is evicted before the conveyance is executed by all the necessary parties, he may recover the purchasemoney in an action for money had and received, although the intended covenants do not extend to the title under which the estate was recovered, and he may be in possession of the estate." In this case, therefore, if any proceeding had been taken on foot of the recognizance in the lunacy mater, so as to affect the title of the petitioner, and he had paid the whole of the purchase-money, he might have recovered it back in an action for money had and received; and on the same principle he would have had a good defence at law, to an action on the promissory note, on the ground that the whole consideration had failed. But no proceeding has been taken on foot of the recognizance, and therefore there would be no defence at law, on the ground of the failure of consideration, to an action on the promissory note; and then the question is, what defence has the petitioner in equity? His equity, as I understand it, is not founded on the failure of consideration, for that would be a defence at law; but it is, that the implied contract for title has been broken, and that he could bring a cross action against the vendor for the recovery of damages, and that the measure of the damages would be sufficiently ascertained as to entitle him to set them off against the purchase-money. In Williams v. Davies (a), a motion was refused, to dissolve an injunction (granted on affidavit and certificate) to restrain execution on a judgment obtained by the defendant against the plaintiff, the latter having obtained a judgment to a greater amount against the former. There were two judgments which could not be set off at law, and the question was whether they would be set off in equity. Sir John Leach said:"It appeared to him that the case was the same as if the defendant's judgment had been paid, and he had been proceeding at law to take the plaintiff in equity in execution; that the judgment was in point of fact satisfied; and that although the Court of King's Bench would not in point of form allow the plaintiff's judgment to be set off against the de (a) 2 Sim. 461. fendants, yet that it was right that it should be done in that Court." In the case of Whyte v. O'Brien (a), it was held that a person against whom a verdict had been obtained, having afterwards acquired a demand to a greater amount against the party who obtained it, is not entitled to an injunction to restrain proceedings on the verdict. No doubt, in that case the cross demand was acquired after the verdict, and it may be said that this case is different, for it arises here before the verdict; but the observations of Sir John Leach, and of Lord Cottenham in Rawson v. Samuel (b) appear to be applicable to this case. Sir John Leach says:"Equitable set-off is where, by reason of the nature of the cross demand, there can be no set off-at law. Here the demand is purely legal." In Rawson v. Samuel, Lord Cottenham says:"We speak familiarly of equitable set-off, as distinguished from the set-off at law; but it will be found that this set-off exists in cases where the party seeking the benefit of it can show some equitable ground for being protected against his adversary's demand. The mere existence of cross demands is not sufficient, Whyte v. O'Brien ; although it is difficult to find any other ground for the order in Williams v. Davies (c), as reported. In the present case there are not even cross demands, as it cannot be assumed that the balance of the account will be found to be in favour of the defendants at law. Is there, then, any equity in preventing a party who has recovered damages at law from receiving them, because he may be found to be indebted, upon the balance of an unsettled account, to the party against whom the damages have been recovered? Suppose the balance should be found due to the plaintiff at law, what compensation can be made to him for the injury he must have sustained by the delay? The jury assess the damages as the compensation due at the time of their verdict; their verdict may be no compensation for the additional injury which the delay in payment may occasion. What equity have the plaintiffs in the (a) I Sim. & St. 551. (b) Cr. & Ph. 161. (c) 2 Sim. 461. 1853. Rolls. CARTER V. UNIACKE. Judgment. 1853. Rolls. CARTER v. UNIACKE. Judgment. suit for an account to be protected against the damages awarded against them? If they have no such equity, there can be no good ground for the injunction." Having regard to those principles, I do not see what equity the petitioner has in this case. He says he has a good cause of action, on the breach of the implied contract for title. Suppose it appears on the trial that he has allowed the interest to be evicted, by omitting to pay the head rent, how could he recover damages in the action? There has been an actual eviction under the habere, and unless the lands are redeemed before November next, the interest will be gone altogether. I think, therefore, having regard to settled principles, that I ought not to stop execution in this case, unless the money is brought in. KNOX v. MAHON. Nov. 5. In granting leave to file MR. BOND COXE, on behalf of a respondent, moved for liberty to file affidavits after an affidavit in this case, which was a cause petition under the Court a cause peti tion has been of Chancery (Ireland) Regulation Act 1850, after the cause petition had been set down for hearing. set down for hearing, the Court does not require an affidavit of merits. Mr. W. Smith, for the petitioner, opposed the motion, and contended that in giving leave to file an affidavit, the Court should act on the same principle as it acted formerly in giving leave to file an answer after a decree pro confesso, viz., that the application would not be granted unless there was an affidavit of merits: Delany v. Doolan (a); Cruise v. Sheil (b); Casey v. Casey (c). (a) Fl. & Kel. 182. (6) 6 Ir. Eq. Rep. 132. (c) 11 Ir. Eq. Rep. 327. |