the sublessee. The subleases had indeed then expired, though that fact does not seem at that time to have been adverted to. The head lessee was subject to a right of renewal then vested in the annuitants, and he proved that he considered his title as founded upon his title of sublessee; for he did not dispute the right of the annuitants to have their annuities paid out of the rents by the hands of the receiver from 1817, till the application was made to the Court on the 22d of May 1824. The right of the annuitants to have the rents of the leaseholds applied in payment of the annuities was available against any tenant-right of the sublessee; the right of the head lessee to fines, &c. against the tenants' interest, arose upon the title to a renewal being claimed, and ceased upon its being abandoned. It is very possible that if the Appellant had taken a different course upon the receiver being directed to keep down the annuities, the Court might have thought it right to give him in substance what he now asks; that is, if he had said to the Court, as head lessee, "I am entitled to determine the interest of the sublessee, unless the right to a renewal be enforced; and if it be enforced, I shall be entitled to the amount of fines payable; let therefore the amount be paid or secured for me before the annuitants, claiming through the sublessee, are permitted to receive the rents." This he, however, did not do; but doing nothing to determine the tenancy of the sublessee, permitted the annuitants to receive the rents; and the amount of the rents so received was, by the order of this House, and by the decree now under consideration, deducted from the amount due on the annuities. The application of the 22d of May 1824 had some such object in view, but it was wrong in form, and 1841. HAIG V. HOMAN. 1841. HAIG C. HOMAN. the order refusing it has not been made the subject of appeal. If, therefore, the decree was now to be altered for the purpose of repaying to the Appellant the amount of rents so applied, it must also be altered by varying all the calculations, and examining the amount due on account of the annuities, and by again giving to the Respondents the option of renewing the subleases; the option they exercised under the decree as it stood, having been exercised on the faith of the decree, that the rents received by them were to be retained in satisfaction pro tanto of the arrears of the annuities. It does not appear that the Appellant would be benefited by this change, or that justice requires it; but if that were otherwise, it would be impossible that what the Appellant now asks could have been done by the decree appealed from. Many cases were cited to show that a Court of Equity will, upon dismissing a bill, compel the plaintiff to do justice to the defendant. It is, perhaps, to be wished, that Courts of Equity had more power for this purpose. I cannot but think that in the endeavour to do justice in particular cases, the Courts have already gone to the full extent of what the principle of their jurisdiction will warrant. I allude particularly to that case of Lord Anson v. Hodges (c), for none of the other cases referred to applies to the present question. When money is in Court, it must necessarily be returned to the party entitled, if the plaintiff's bill be dismissed; but the cases of Wright v. Mitchell (d), and Taylor v. Waters (e), prove that orders for that purpose are made upon special application, and are not made by the decree of dismissal. (e) 1 Myl. & Cr. 266. (c) 5 Sim. 227. If, therefore, the Appellant was entitled to what he asks, it is no objection to the decree that it does not contain a direction for that purpose. The next subject of appeal is the order of the 2d of June 1836; but that order cannot of itself be objected to, for it only directs the Master to ascertain the state of the funds, and of the claim for principal and interest and costs, and to allocate the funds according to the decree. If, therefore, the decree cannot be impeached, neither can that order, which is consequential upon it. The next subject of appeal is the order of the 26th of November 1836, obtained upon the Appellant's application to impound the funds in Court until the Appellant's cause could be heard; and by which 5,000l. were to be so impounded, and the residue ordered to be paid out of Court, partly in payment of costs and partly in payment to the plaintiffs. This order, which was for the benefit of the Appellant, and to the terms of which he consented, cannot be impeached unless the proceedings, upon which so much of it was founded as directs the payment of money out of Court, are set aside, or the Appellant is declared entitled to succeed upon his bill of review. I The next subject of appeal is that upon which, presume, the Appellant principally relied; namely, the order of the 1st of May 1837, dismissing his bill. Before the merits of that suit can be properly appreciated, the state of the proceedings in the former suit, respecting the application of the rents of the leaseholds to the payment of the annuities, must be distinctly understood. In 1816 a receiver had been appointed, who, in 1817, had been ordered to keep down the annuities out of the rents received. The 1841. HAIG v. HOMAN. 1841. HAIG v. HOMAN. order was repeated by the decree of the 26th of January 1818. The order of this House upon the former appeal had not only left untouched the order directing the application of the rents to keeping down the annuities, but had recognised the mode in which the former account of the arrears had been taken, and directed the subsequent accounts to be taken upon the same footing; and the decree of the 23d of February 1831, not appealed from, had directed that, in taking such subsequent accounts, credit should be given by the Master to the Appellant for all sums received by the annuitants since the date of his former report, which included the sum received by them from the receiver. The bill so dismissed on the 1st of May 1837 was filed by the Appellant in the preceding year, and it prayed for an account of all rents received by the defendants from the leasehold lands since the appointment of the receiver, and payment of the amount out of the proceeds of the freehold lands sold under the former decrees; and that for that purpose so much of the decrees of the 27th of January 1835, 1st of February 1816, 10th of November 1817, and 26th of January 1818, as should be necessary, might be reviewed and altered. No attempt was made to support this bill, otherwise than as a bill of review; for, independently of that character, it would be a bill praying the Court to decree to the plaintiff that which the former decrees and orders of the Court had taken from him and given to the defendants, leaving such former decrees and orders in full force. But if this bill be considered as a bill of review, it can only be supported if there be error in law appearing on the face of the decrees sought to be reviewed; and the error for this purpose must be of the character described by Lord Eldon in Perry v. Phelips (f): the mere propriety of a former judgment cannot be questioned in this form. It is not easy to discover what error this bill intended to impute to the decree of the 27th January 1835. If it intended to allege that the decree ought to have provided for payment of the fines and rents payable upon a renewal of the subleases, although the annuitants should not require such renewal, I think it clear that this was an error in fact, and that none appears upon the record; and if it intended to allege that that decree ought to have contained a direction in that event for repayment of the rents received, I think it clear that there was no case upon the pleadings for any such direction, and therefore that there was no such error apparent. As to the decree of the 1st of February 1816, which was the decree pro confesso nisi, which was made absolute on the 18th of November 1816, and which no attempt was ever made to open, independently of the objection to making such a decree the subject of a bill of review, there is no error apparent upon the face of it. The next decree sought to be reviewed is said to bear date the 10th of November 1817. I do not find any decree or order of that date, except an order for confirming a report, which was afterwards made absolute. If by what the bill terms decrees of the 1st of February 1816 and 10th of November 1817, be meant the order appointing the receiver, and the other order of the 8th of March 1817, directing him to keep down the annuities, then I think it clear that there is no error apparent upon the face of these (f) 17 Ves. 177. 1841. HAIG v. HOMAN. |