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1841. other evidence are the receipts for tithe-rent, which

had been paid by P. W. Callaghan in 1835 and CALLAGIAN

*** 1836, but was paid in November 1837 in the AppelCallagHAN. lant's name.

0.

Mr. Pemberton and Mr. T. H. Hall, for the Respondent: The cross-bill having been dismissed, and there being no appeal from that part of the decree, the argument must be confined to the Appellant's suit. His bill prayed specific performance of the agreement as for valuable consideration. The Respondent resisted the performance of the contract as unreasonable and inconsistent in its terms, and for an inadequate consideration; but especially as not having been intended by the parties to it to be carried into execution. Courts of Equity never lend their assistance to enforce specific performance of contracts that are open to all or any of these objections. It did not occur to the Appellant to set up this agreement in answer to the Respondent's notice to give up possession of Lota some months after P. W. Callaghan's death, nor to plead it to the action of ejectment. No such title was alleged by him when he consented to judgment in that action in July 1838. It was not until the 15th of September that he gave the Respondent notice of this agreement, and in pursuance of that notice unadvisedly filed his bill. The Respondent's defence does not require a case of fraud to be made out against the Appellant; it is sufficient for his purpose that the Appellant has not shown a title to the relief he prays. If he has a good contract, he may use it to protect himself at law; but coming to ask for the assistance of a Court of Equity, he must show that the agreement was entered into with a bona fide intention of carrying it into effect; that both parties contracted for the same thing, and understood the effect of their contract. 1841. The reference to Persse v. Persse, which was the CallAGIAN case of a contract executed and sought to be set aside, a...0.

CALLAGHAN. is wholly inapplicable.

All the circumstances attending this agreement show that it was made for a temporary purpose, and not with the view of being certainly and at all events carried into effect. The Appellant had been required in the month of September 1837, just after his election for Cork, to take the qualification oath, which he accordingly took before the sheriff, stating his property to be partly in the county of the city of Cork. It is in evidence that there were judgments to the amount of 40,000 1. against him at that time, besides about 30,0001. to which he was liable for the fortunes of his sister and two younger brothers, under their father's will. It is perfectly clear from his instructions to Mr. Terry, as stated in Terry's depositions, that the object of the agreement was to have this property to serve for a qualification against the threatened petition. Mr. Terry prepared the proposal the very evening of the day that he received the instructions, and the signatures were put to it the next day. The abandonment of the petition could not be known to them till the 14th, for the committee did not declare till the 14th. If the parties had previously agreed, as the bill alleges, and the agreement was intended to be permanent, would it not be the obvious and simple course to instruct Mr. Terry to prepare a proper and final instrument? It does not appear that the Appellant told Mr. Terry that there was a previous verbal agreement.

The terms of the proposal and acceptance, coupled with the memorandum annexed, are so inconsistent that it is impossible to ascertain the real contract

1841.

CallagHAN

P. CALLAGHAN.

Inread

between the parties. The proposal and acceptance gave the property rent-free to the Appellant during his life; and being worth 350 l. a year, it would make a good Parliamentary qualification for Cork. When the Appellant knew on the 15th that the petition was abandoned, there being then no occasion to use the agreement as a qualification, the memorandum to pay the 3501. rent“ henceforward” was added, completely altering the contract; and that probably was the intention of the parties.

The terms of the agreement, confined to the proposal and acceptance, are so unreasonable and unfair, even between brothers, that a Court of Equity ought not to decree a specific performance. Did P. W. Callaghan know that he was not only giving this property, worth 3501. a year, rent-free, but also free from assessments? What charges and liabilities were comprised in that term ? Did he understand that he did not only denude himself of the property, but subjected himself to all the liabilities implied in that term ? Did he know that he was to pay the head rent also, according to this contract ? Did he know that the Appellant's judgment creditors might possess this property as soon as it was assigned to the Appellant, and turn out his mother and sister and brothers, and himself? By the conversations between P. W. Callaghan and his sister and two younger brothers, deposed to by them, to the effect that P.W. Callaghan wished “ to give back the place” to the Appellant, he could not have meant that the Appellant should take it back without repaying the 6,000 l. which he had paid the Appellant for it.

The agreement was prepared by the Appellant's solicitor, without any communication with P.W. Callaghan, who adopted it, and signed his name to it,

1841. CALLAGHAN

V. CALLAGHAN.

without any professional advice or explanation, or opportunity of considering the effect of what he was doing. It was concealed by the Appellant for ten months after his brother's death. The terms of it were so vague and uncertain that the House would have to make an agreement if it sanctioned the appeal; it was impossible that both parties could have contracted for the same thing, or intended the same effect to their contract, or understood the extent of it. These, and also the inadequacy of the consideration, were such objections as would, taken singly, induce a Court of Equity to forbear decreeing specific performance: Clowes v. Higginson (f); Harnett v. Yielding(g); Price v. Assheton (h); Ramsden v. Hylton(i), and the case of Faine v. Brown, cited in Ramsden v. Hylton; Day v. Newman (k), stated correctly in the argument in Mortlock v. Buller (1); Underwood v. Hitchcock (m); Pope v. Roots (n); Kimberley v, Jennings (0).

Mr. Serjeant Jackson, in reply :-Although the decree dismissing the cross-bill has not been included in the appeal, the House will consider both the causes together. They were treated as one cause, and deemed consolidated from the beginning, by coun. sel in the argument in the Court below, and by the Lord Chancellor in his judgment. The proofs in the one were to be read in the other, and both constituted but one cause. Reference is made to the cross-cause in the Appellant's printed case; and both bills, and

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v.

the answers to them, are printed in the appendix.

Justice cannot be done without introducing into the CALLAGHAN

original cause the Appellant's answer to the crossCALLAGHAN.

cause. Unless the House therefore considers both causes together, the original cause ought to be remitted to have the pleadings amended, and to incorporate in the Appellant's bill the contents of his answer to the cross-bill, and to put the pleadings in a regular form. It is some excuse for the Appellant's bill that it was an injunction bill, and therefore did not include all the allegations that could be introduced in support of his title. It will, therefore, be a great hardship on the Appellant to restrict him to the proceedings properly belonging to the original cause.

As to the charge-abandoned in the Court below, but renewed here by the Respondent's counsel—that the Appellant intended to make this agreement serve for a temporary purpose as a Parliamentary qualification, such an imputation is inconsistent with the whole life and character of the Appellant, who on that account has a greater interest in this appeal than the mere value of the property at stake. The absurdity of the imputation is great, because every one must know that a qualification acquired after election cannot be used as an answer to a petition against that election.

[The Lord Chancellor and Lord Brougham :It is not material whether he could use an after-acquired qualification, or not: the question is, did he suppose he could use it?]

It was in Mr. Terry's evidence that he knew he could not; that he conceived he had sufficient qualification from his other properties : all who know the

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