1839. MUNDY v. JOLLIFFE. add to or vary the verbal contract; and if this provision were afterwards added and agreed to by the parties, the altered agreement would not be the less binding upon the parties. This supposition, indeed, would explain how the memorandum and the deposition of Mr. Hector, who speaks to the meeting between the landlord and the tenant, are silent as to this provision; but the draft lease, being the act of the landlord's agent, is evidence against him; and there is, besides, the fact of the tenant having been at the expense of converting the arable piece of land into pasture,-all which affords evidence of this provision having been part of the ultimate contract; but if there had been no evidence of this, the statement of this provision would be against the tenant, and which it is proved he had performed. It, therefore, would introduce no difficulty in doing justice between the parties. In the case of Gregory v. Mighell (a), the bill alleged, as part of the agreement, that the taxes and necessary repairs were to be borne by the tenant; but this was not noticed by the witness who was present and proved the verbal agreement. Sir W. Grant decreed a specific performance upon the grounds, first, that the statement was an admission against the Plaintiff himself; and, secondly, that it was immaterial, the stipulation being for no more than the tenant must have done without it. Both these grounds are to be found in this case. The statement is an admission against the Plaintiff himself, and is immaterial so far as relates to any thing remaining to be done. The Defendant has endeavoured to set up, as a defence, acts of the tenant which would have been breaches of the covenant, if a lease had been executed. In this I think he has wholly failed; for instance, he charges the tenant (a) 18 Ves. 328. tenant with having grubbed up a hedge, and it is proved to have been done with the approbation of his own steward. This ground of defence assumes the existence of the agreement; and if, upon that supposition, the landlord never complained of the conduct of his tenant, but permitted him to act upon the faith of the contract, it would require a strong case to enable the landlord to raise such objections, for the first time, when the tenant claimed the benefit of it. set up. In the view I take of the case, it is not necessary to advert further to the answer and to the defence there Courts of Equity exercise their jurisdiction, in decreeing specific performance of verbal agreements, where there has been part performance, for the purpose of preventing the great injustice which would arise from permitting a party to escape from the engagements he has entered into, upon the ground of the Statute of Frauds, after the other party to the contract has, upon the faith of such engagement, expended his money or otherwise acted in execution of the agreement. Under such circumstances, the Court will struggle to prevent such injustice from being effected; and, with that object, it has, at the hearing, when the Plaintiff has failed to establish the precise terms of the agreement, endeavoured to collect, if it can, what the terms of it really were. It is not necessary, in this case, to adopt any such course of proceeding; for I think an agreement for a lease sufficiently proved, and that acts of part performance are proved, so as to take the case out of the Statute of Frauds; and I think the defences set up have wholly failed. It follows that the decree of the Vice-Chancellor must be reversed, and that there must be a decree for a specific performance of the agreement, as stated in the bill, and a reference to settle the lease, if the parties differ about it; and the Defendant must pay the costs of the suit, 1839. MUNDY v. JOLLIFFE. f 1839. BETWEEN HARRIET ELIZABETH MUNCH, since deceased, AND Sir CHARLES COCKERELL, Bart., since deceased, GEORGE REID Defendants, AND BETWEEN - Plaintiff; AND Sir CHARLES COCKERELL, Bart., since deceased, By bill of revivor; Defendants, AND BETWEEN The said GEORGE REID AND Plaintiff, JOHN STUDHOLME BROWNRIGG, JAMES MATTHEW DENZILOE and ELIZABETH ANN, his Wife, WILLIAM BEAUFOY LE GROS, GROS, out of the jurisdiction of the Court, By bill of supplement and revivor ; Sir CHARLES RUSHOUT COCKERELL, Bart., AND Plaintiffs, The said GEORGE REID, ANN EVELYN, By cross bill. THIS 1839. Defendants, June 5. 7. 8. HIS cause came before the Lord Chancellor, upon two appeals-one by Sir Charles Rushout Cockerell, Bart., as the executor of Sir Charles Cockerell, Bart., deceased; and the other by the executors of Henry Trail, deceased against a decree of the Vice Chancellor, by which it had been, in effect, declared that Sir Charles Cockerell and Mr. Trail, as trustees of a settlement of 11. 12. 1840. Jan. 21. Half of a trust fund held on the trusts of a settlement of settled by a settlement of 1778 was re 1791. In a suit to administer the trusts of the 1778, that ordered to be the year 1778, were liable to make good to the late settlement of Plaintiff, Harriet Elizabeth Munch, one moiety of a trust half was, in fund of 164,999 sicca rupees. This trust fund arose from the year 1809, a sum of 164,000 sicca rupees, which had been invested transferred to upon a Government Note of the East India Company, the settlement under the control of the house of Palmer and Co., of of 1791. The Calcutta, the trustees of 1839. MUNCH v. COCKERELL. transfer was never made, nor was it ever applied for by the trustees of the settlement of 1791. In 1827 the parties beneficially entitled under the settlement of 1791 were adult and sui juris. The then present investment of the trust fund was, as it had for many years before been, an investment in India, subject to the control of the trustees of 1778, but those trustees were and had long been in England. The parties so beneficially entitled knew of and acqui esced in the investment, Calcutta, and which had been paid off by the East India Company in the year 1823, when Palmer and Co. took a new note from the East India Company for 114,800 sicca rupees, but retained the remaining 49,200 sicca rupees as a cash balance in their hands; and they not only never invested that cash balance, but they, subsequently, at some time before the 4th of January 1830, converted into money the note for the 114,800 sicca rupees, and appropriated the produce of such conversion to their own use; and on the 4th of January 1830, they stopped payment, and subsequently were declared insolvent. The cash balance then in their hands upon the trust account amounted to nearly 50,200 sicca rupees, so that the whole amount of the fund in question in this cause was 164,999 sicca rupees, of which one moiety was 82,499 sicca rupees. The case is reported in the eighth and ninth volumes of Mr. Simons's Reports (a); first, on a preliminary objection for want of parties, and, secondly, on the hearing of the cause. and never required that their half of the fund should be transferred to the trustees of 1791. The trust fund was afterwards lost by the failure, in 1830, of a house of business in India. Held that the parties beneficially entitled were precluded from insisting that the trustees of 1778 were liable to make good the loss by reason of their not having made the transfer to the trustees of 1791. Trustees in England held liable for the loss of a balance of money which they knew to be in the hands of a house of business in India, and not invested upon proper securities, although the cestuis que trust had consented that the house in India should have the management of their affairs there; for it did not appear that the cestuis que trust knew that the balance, instead of being properly invested, remained in the hands of the house in India. Distinction between the degree of knowledge and sanction necessary to exonerate trustees from a breach of trust, and that which is necessary to preclude the cestuis que trust from complaining of an omission which, if concurred in by the cestuis que trust, did not constitute a breach of trust. |