through this long and complicated litigation. It was The plaintiffs in the former suit having made default in paying the amount due to the Appellant for renewal fines and rents, and in taking the renewals of the subleases upon the terms of the order of this House, and of the decree of the 27th of January 1835, and having suffered their bill to be dismissed, it was just and equitable that the Appellant, on such dismissal, should be reinstated in the position in which he was at the time when that bill was filed, and in which he would or might have remained but for the proceedings in the suit in respect of the lands of Carnans and Killan, and the rents and profits of them. The Appellant having, at the time when the former suit was instituted, been in the possession of these lands, or in the receipt of the rents, and being entitled to continue in such possession or receipt, and having so continued until displaced by the receiver appointed 1840. HAIG v. HOMAN. 1840. HAIG V. HOMAN. by the Court, and by the orders directing the continuance of the receiver, and the application of the rents to the payment of the annuities having been made on the footing, and with a view to the relief sought by the plaintiffs in that suit in respect of the lands of Carnans and Killan, and the plaintiffs having no right to or interest in the rents, otherwise than upon the footing of their being ultimately entitled to such relief, it was necessary, in order to the reinstatement of the Appellant in his original position, that when the plaintiffs' bill was dismissed, the rents and profits received and applied in the interim under the orders pronounced in the suit should be refunded to the Appellant. The receiver was also appointed over the freehold estates-[The Lord Chancellor :-If the freehold estates were sufficient, the contest would have been for nothing.]-They were not sufficient; they were sold for 10,800l., and the three annuities amounted to 900l. a year, besides other incumbrances. Sir W. Homan, and the other plaintiffs with him, received the annuities of 300 l. and 200 l., but L'Estrange received nothing. The only means by which the Appellant could be reinstated and reimbursed his rents would be, either by directing the Respondents, Homan and those by whom the rents and profits had been received, personally to refund them, or by directing the amount of them to be a charge upon and raised out of the other estates charged with the payment of the annuities. Inasmuch as by the application of the Appellant's rents to the payment of the annuities, the other estates had been pro tanto exonerated from such payment, and as it now appears that the Appellant's rents ought never to have been so applied, he is entitled not only to a personal order upon the Respon dents for repayment, but also to stand as a creditor on the other estates, or the produce of them, in the place of the annuitants, to the extent of his rents and profits so applied, and consequently to have the same raised out of the produce of the other estates, in preference to, and in priority over, any other payment thereout. The decree of January 1835, first appealed against, dismissed the plaintiffs' bill in default of their paying the renewal and quinquennial fines, but made no provision for the refunding of the rents which they had been so long receiving without any right to them. In that respect that decree was clearly erroneous, and the whole question in the appeals turns in effect on that decree. By that decree, an option being reserved to the plaintiffs in the suit of electing to have their bill dismissed, so far as it related to the lands of Carnans and Killan, by making default in payment of the amount found due to the Appellant for renewal and quinquennial fines and arrears of rent, with interest as therein mentioned, provision ought, upon the principles and for the reasons before stated, to have been made for reinstating the Appellant in the situation in which he would have been in case that bill had not been filed. And for that purpose the decree ought to have contained provisions, that in the event of the bill being dismissed, so far as related to those lands, the Appellant should be reimbursed, either by the plaintiffs, personally, or out of the produce of the sales of the other estates comprised in the annuity deed of the 22d day of June 1809, the amount of his rents and profits of the lands of Carnans and Killan, which had been received by the receiver appointed in the cause, and paid over to the plaintiffs; or else liberty 1840. HAIG v. HOMAN. 1840. HAIG 0. HOMAN. ought to have been by the decree reserved to the Appellant to apply in respect of such rents and profits as he might be advised. If a party claiming a charge on an estate asks the Court to give him the benefit of it, offering to do what the Court proposes,-if he is left in the enjoyment of the estate on that condition, but afterwards repudiates the condition, is he to retain the benefits he received from the enjoyment of the property? That is the substantial issue between those parties. Can the Respondents refuse the equity which the Appellant asks, remembering their position in 1815, when the litigation began, upon the supposition that the subleases were subsisting, and that they had a right to have them renewed? The rents and fines due to the Appellant were, by the order of this House, held to be primary charges on the leasehold lands; and the first decree gave as much right to have the renewal fines raised as the annuities. If it shall appear that substantial justice has not been done to the Appellant, and that the Respondents have not done what they ought, objections of form should not be allowed to stand in the way of justice being now done. There are cases in which Courts of Equity have given directions to do what was right, after dismissal of the bill. For instance, after a bill by a purchaser against a vendor for specific performance had been dismissed with costs, the receiver was ordered to pass his accounts, and pay the balance to the vendor on his petition; Pitt v. Bonner (e). So where a bill was dismissed, and tenants, who were parties, had paid their rents into Court, the Court held it could order the money to be paid out on the motion of the assignees of the lease; (e) 5 Sim. 577. Wright v. Mitchell (f). In Small v. Attwood, after a bill was dismissed by order of this House (g), money paid out of Court to the plaintiffs was, on petition of the defendant, ordered to be repaid with interest, up to the date of the decree reversed (h). In a suit for specific performance by a vendor, when his bill was dismissed on further directions, it was ordered that the deposit should be returned to the defendant, with interest; Lord Anson v. Hodges (i). Where a suit was dismissed under proceedings in which the plaintiffs had paid a sum of money into Court, it was held that the Court could order that sum, with the accumulations, to be paid back to the plaintiff'; Taylor v. Waters (k). The orders of the 2d of June, and the 26th of November 1836, and of the 8th of May 1837, did not carry out the principles now contended for; but proceeded to allocate the funds in payment of the annuities and costs, without providing for the reimbursement to the Appellant of the rents and profits which had arisen and been received by the receiver from the lands of Carnans and Killan. With respect to the decree of the 1st of May 1837, supposing that from any cause the Appellant was precluded from the means of having his rents and profits of those lands refunded and reimbursed by an order in the former suit, he was entitled to maintain a new and original suit for the purpose, and the proceedings in his suit were properly framed for the purpose, and the relief sought by his bill was the relief to which, for the reasons before mentioned, he was entitled, (f) 18 Ves. 293. (g) Ante, Vol. VI. 232. (h) 3 You. & Coll. 105. (i) 5 Sim. 227. 1840 HAIG v. HOMAN. |