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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 Vol. VIII.





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.



0. Homan.


Wright v. Mitchell (f). Iu Small v. Attwood, after a bill was dismissed by order of this House (9), 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,

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1940. HAIG


upon the Respondents' making default in payment of the amount found due to him in respect of the renewal and quinquennial fines and arrears of rent, with interest, and upon their bill being thereupon dismissed. Whether the Appellant's bill be considered as an original bill, or bill of review and reversal, there are many authorities warranting the relief which was prayed by it, considering the hardship imposed on the Appellant by the oppressive conduct of the Respondents; Houghton v. West (l); Coventry v. Hall (m); Dormer v. Fortescue (n); Curtis v. Curtis(0); Pulteney v. Warren(p); Grant v. Grant (g); Brown v. Newall (r); and Attwood v. Small(s).

With respect to the claim of the Respondents to be allowed, in the event of the Appellant's claims being established, to have another period for option as to renewing the subleases granted to them, the Appellant submits they will not be so entitled upon any terms; because, at the time when their original bill was filed, the subleases had been permitted to expire without renewals, and thereby the right of renewal, if any, and so far as the same originally existed, had been lost, and no legal estate, right, or interest under the subleases was subsisting. Although this House thought fit, by its former order, to give the plaintiffs in that suit equitable relief, in affording them an opportunity of renewing the subleases upon the terms in that. order mentioned, yet such opportunity was afforded upon the understanding, manifested by the whole course of the proceedings in the cause, that they would and should renew the subleases upon the terms

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of that order; and it never was intended or contemplated that the plaintiffs would decline to renew the sibleases, or to pay the amount found due to the Appellant. Since the plaintiffs have thought fit to make default in complying with the terms on which alone they were declared entitled to the renewals, and have elected to have their bill dismissed, they have now no equity to ask for any further indulgence, or to call upon this House to relieve them from the legal operation and effect of the cesser of the subleases, and the consequent expiring of such right of renewal, if any such right of renewal ever existed.

Mr. Litton (of the Irish bar), for the Respondents Homan and Arabin, Louisa Howse, and Gertrude Poe: The Appellant obtained from the decree of the 27th of January 1835 as much as he was entitled to. His success in the appeal from that decree would have the effect of remitting the whole cause back to the Court of Chancery; the result of which could not be otherwise than beneficial to those Respondents. But the decree of January 1835 is a final decree, and it is final and conclusive as to the rights of the parties in the whole subject-matter of the suit. It fully ascertained and declared the rights of the several parties respectively, in either of the two events thereby contemplated and provided for; that is, in the event of these Respondents or their trustees paying the amount of the arrears of rent, renewal and quinquennial fines, and thereupon obtaining renewais of the leases of the 3d and 7th of November 1791; or, on the other hand, in the event of their omitting to pay the amount of those arrears of rent and those fines, and thereupon failing to obtain renewals of the leases. In the first case, all the lands, as well the fee

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