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1840.

ΗΛΙΟ

v.

HOMAN.

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 (1); Coventry v. Hall (m); Dormer v. Fortescue (n); Curtis v. Curtis(o); Pulteney v. Warren (p); Grant v. Grant (q); 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

(1) 2 Bro. P. C. 88.

(m) 2 Chan. Cas. 134.

(n) 2 Atk. 282; 3 Atk. 124.
(0) 2 Bro. C. C. 620.

(p) 6 Ves. 72; see p. 92.
(q) 3 Sim. 364; 3 Russ. 607.
(r) 2 Myl. & C. 558.
(s) Ante, Vol. VI. p. 523.

of that order; and it never was intended or contemplated that the plaintiffs would decline to renew the subleases, 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 renewals 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

1840.

HAIG

v.

HOMAN.

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simple lands as the renewed interest in the lands of Carnans and Killan, are directed to be sold, and out of the proceeds of the sale the sums so to be paid by the Respondents for arrears of rent, renewal and quinquennial fines, are to be repaid to them in the first instance, and the residue of the proceeds is to be applied in the same manner as the proceeds of the sale of the fee-simple lands as thereinafter directed, in case the Respondents should not renew; that is, in payment of the demands of the Respondents and of the other annuitants.

By this decree, an option is given to the Respondents either to renew or not to renew; and the consequences of their adopting either course are fully placed before them. By the decree they are expressly told that, if they omit to renew, they will lose the lands of Carnans and Killan as a security for their annuities, and that in such case their remaining fund, namely, the proceeds of the sale of the fee-simple lands, will be charged with the payment of the costs payable to the Appellant in consequence of the dismissal of their bill so far as regards the renewal. But they are also expressly told that the proceeds of the sale of the feesimple lands shall, subject to such costs, be applied in payment of the arrears of their annuities and costs. This decree may be considered as presenting to the Respondents a case of election; giving them, in case they pay the rents and fines, all the lands, fee-simple and leasehold, as a fund for payment of their demands; but in case of nonpayment of the rents and fines, giving them as a fund the fee-simple lands only, and giving to the Appellant the leasehold lands discharged from the right of renewal, and also his costs, so far as related to the question of renewal. The Respondents seeing that the fund arising from the sale of the fee

simple lands was sufficient for payment of their demands, made their election to take that fund, and did not renew. If the Respondents had been told by the decree that, in default of their renewing, the Appellant would, in addition to the possession of the leasehold lands and the payment of his costs, be entitled to recover, out of the funds arising from the sale of the fee-simple lands, the rents received out of the lands of Carnans and Killan during the pendency of the suit, they would have had a very different case of election presented to them. Instead of a question between a larger fund and a lesser, but still a sufficient fund, it would have been a question between a sufficient fund and no fund at all; for the Appellant's claim of rents, together with his costs, would have absorbed all the funds arising from the sale of the fee-simple lands, and nothing would have remained for payment of the arrears of the annuities.

It must be remembered that the rents received by the receiver out of the leasehold lands have been from time to time applied under orders of the Court in part payment of the arrears of these Respondents' annuities, with the knowledge of the Appellant, who never during the progress of the suit objected to that application of them. He has not appealed from these orders, and he is now precluded, by his long acquiescence, from receiving those rents. The 1,250 l. found, by the report of the 4th of July 1817, to be due to the Respondents, was the balance remaining due to them after giving credit for the sums paid to them by the receiver out of the rent of the lands. The decree of the 15th of February 1825, to which the Appellant was a consenting party, as to some of its provisions, expressly directs that this 1,250 7. should be taken as the sum due on foot of the two annuities

1840.

HAIG

v.

ΠΟΜΑΝ.

1840.

HAIG

v.

HOMAN.

up to the time mentioned in the report. In like manner, the sum of 2,305 l. 11 s. 9 d. found by the report of the 13th of January 1826, and also the sum of 2,555 l. 11 s. 9 d. found by the report of the 6th of June 1826, to be due to these Respondents on the foot of their annuities, were respectively the balances due to them on the continued accounts, after giving credit for the sum paid to them by the receiver. The Appellant, on the hearing of his former appeal to this House, expressly consented by his counsel that the report of January 1826 should stand, subject only to the directions contained in the order of the House of the 4th of December 1830, in relation to the rents and fines thereby declared to be due to him. The decree of February 1825, as varied by the order of this House on that occasion, and the decree of the 23d of February 1831, directing that the receiver be continued over the leasehold as well as the freehold lands, expressly and finally adjudicate on the application of the rents. The decree of January 1835, which is conclusive on the subject, contains no error in law or in fact prejudicial to the Appellant; but on the contrary, it contains an error in fact prejudicial to these Respondents, inasmuch as they are thereby directed to pay into Court the amount of certain renewal and quinquennial fines which had become due previously to the year 1801, as a condition precedent to their obtaining a renewal of the leases; whereas it appears from recitals in the deed of conveyance from the assignees of Rawson to the Appellant, that renewal fines in respect of the leases of the 3d and 7th of November 1791, had been paid to the representatives of Newburgh up to the year 1801; which deed these Respondents did not see, or had no opportunity of seeing or perusing until after the pronouncing of the

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