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 (o). 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 counsel 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 1841. CALLAGHAN v. CALLAGHAN. 1841. CALLAGHAN V. CALLAGHAN. the answers to them, are printed in the appendix. Justice cannot be done without introducing into the original cause the Appellant's answer to the crosscause. 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 Appellant, know well that he is not a man who would use a fraudulent qualification. As to the objections to the agreement on the ground of its unreasonableness, it ought to be remembered that P. W. Callaghan was most anxious to place the Appellant, the head of the family, in independent circumstances. He was himself an unmarried man, with ample fortune, and had lived many years free of all expense at the house at Lota, while it was the property of the Appellant, and the establishment there was chiefly supported by the Appellant. There is nothing unreasonable in giving a bounty to such a brother. The assessments, which are said to be so vague, are confined to rates and grand cess, not exceeding 10l. a year. There is no obscurity in the terms of the contract, nor any allegation that P. W. Callaghan was not competent to understand it. As to the want of previous communication between Mr. Terry and P. W. Callaghan, it would be officious and improper and impertinent in Terry to give or ask any explanation, knowing the attachment of P. W. Callaghan to the Appellant. That point was not put in issue by the pleadings. There is no controversy here as to the law on this subject; the dispute is as to facts. Higginson v. Clowes, and Clowes v. Higginson, before cited, may be relied on by the Appellant. The cases referred to for the Respondent are cases of inadequacy of consideration, which cannot be held to apply to a family arrangement. The Lord Chancellor observed that the original pleadings in the cause had not been brought from Ireland; the House could not pronounce its judgment until they were laid on the table of the House. 1841. CALLAGHAN v. CALLAGHAN. 1841. v. CALLAGHAN. Oct. 6. Lord Cottenham :-The property in question in CALLAGHAN this case consists of a mansion-house and 35 acres of land, being part of 80 acres held under a lease for lives renewable for ever, subject to a rent of 1607. and a fine of 5s. upon each renewal. The other 45 acres had been sublet for lives renewable for ever, at a nominal fine, and subject to a rent of 160l. In 1834 P. W. Callaghan purchased the whole, subject to this sublease of 45 acres, for 6,000l.; and the object of the bill was a specific performance of an agreement, dated the 14th of November 1837, for a sublease of the mansion-house and 35 acres to the plaintiff, for his own life and two other lives; to be free of all rents and assessments during his own life, and subject to a rent of 3501. during the lives of the other two, if they should survive him. This alleged agreement was in the form of a proposal by the plaintiff, dated the 14th of November 1836, and an acceptance by P. W. Callaghan, dated the 15th of November; and of the latter date was a memorandum signed by both, in these words,-" Rent to become due and payable half-yearly, on every 1st day of May and 1st day of November, henceforward." Now this portion of the property being about half of the whole, may be considered as subject to about half of the whole rent of 1607., and was besides subject to half of the whole of the assessments. By this agreement, Patrick, the owner, was, during the whole of the plaintiff's life, to remain subject to this rent and assessments, without receiving any rent in return; so that it was not only a present of the property to the plaintiff as it belonged to Patrick, but of the rent and assessments to which it was subject, and this, of a residence and lands, upon which Patrick was himself living, as he continued to do till the day of his death. It was so obviously impossible to support this transaction as a purchase and sale, that the plaintiff examined several witnesses to prove that the owner, Patrick, intended to make a present of the property to his brother, the plaintiff. It would be hazardous to rely upon this evidence, which is not the ground upon which the bill seeks relief; but if believed, it would go far to disprove the plaintiff's title to it, as Courts of Equity do not decree specific performance of incomplete gifts. It is true that, in general, Courts of Equity do not refuse their assistance to a purchaser, merely because the price is inadequate, but the inadequacy may be so great as to prove fraud, or that the parties could not have intended a contract of sale, and such is the present case; and the evidence in the cause not only proves that they did not intend a sale, but I think proves what they did intend. It appears by an Exhibit that the plaintiff having been elected Member of Parliament for Cork, was on the 9th of September 1837 called upon to take the oath of qualification before the day prefixed in the writ of summons for the meeting of Parliament. Mr. Terry, the solicitor, proves that he never received instructions from Patrick, but that he received instructions from the plaintiff to prepare the instrument, dated the 14th of November, early in October, who told him that his brother was to give him the house and demesne, and that he wished to have it done in that way, as it would thereafter enable him to prove a qualification at less expense, without the necessity of proving his title-deeds to other property; and accordingly, we find an instrument signed, purporting 1841. CALLAG HAN v. CALLAGHAN, |