THE SAINSBURY v. JONES. Nov. 15. 18. HE facts of this case are stated in the second volume C. contracted, of Mr. Beavan's Reports. (a) It seems desirable to add to that report the statement, that, in the month of December 1834, the Plaintiff filed a supplemental bill, stating that, since the filing of the original bill, the Defendant Jones had been found to have been a lunatic from the year 1799, and making the committees of his estate defendants. In the month of July 1837, upon the death of Jones, the Plaintiff filed a bill of revivor against the Defendant Margaret Doggerell, as his heiress at law. (a) Page 462. The as agent of A. and B., to sell an estate to D., and received a deposit in part payment of the intended purchase money. C's agency was afterwards denied by A. and B., and D. then filed a bill against A., B., and C., praying a specific perform ance, and praying, in the alternative, that if he should be unable to obtain a specific performance, C. might be decreed to return the deposit, and to reimburse to the Plaintiff all the expenses of endeavouring to enforce the contract. The bill was dismissed, with costs, as against C. as well as against A. and B.; and the dismissal was affirmed, on appeal. 1839. SAINSBURY v. JONES. The Plaintiff now appealed from the decree of the Master of the Rolls, so far as it had dismissed the bill with costs, as against the Defendant Chitty. Mr. Girdlestone and Mr. Hetherington, in support of the appeal. Mr. Cooper and Mr. Dixon, in support of the decree. The contract in this case was entered into and signed by Chitty, but, professedly, and in terms, as agent for Jones and Doggerell, the owners of the house which the Plaintiff agreed to purchase; and the bill alleges that the 201. deposit was paid to Chitty, "as such agent as aforesaid." The bill was dismissed at the Rolls; and the Plaintiff acquiesces in the decree, so far as it dismissed the bill against Jones and Doggerell, the owners of the house, but insists that there ought to have been a decree against Chitty, who was made Defendant by amendment; and the case made against him was, that if, by reason of the lunacy of Jones, Chitty had not authority to enter into the contract, then he, in so doing, had practised a fraud upon the Plaintiff; and it prayed, in the alternative, that if the Plaintiff should not be able to obtain a specific performance, Chitty might return the deposit, and reimburse the Plaintiff all the costs and charges which he had incurred in endeavouring to enforce the contract. The owners of the property not being parties to the appeal, and all title to a specific performance being abandoned, the case is just as it would have been, if, originally, the Plaintiff had filed a bill against Chitty alone, stating that he could not enforce a specific per formance, formance, and praying a return of the deposit, and compensation for the expense incurred under the contract, against Chitty. That this relief, if the Plaintiff can make out a proper case for it, might have been had at law, is not disputed. The two cases of Bratt v. Ellis and Jones v. Dyke (a) are directly in point; but it is argued that this Court has concurrent jurisdiction. Now the claim is for a return of the deposit paid to Chitty, as agent for Jones and Doggerell, and for damages for the injury sustained by the Plaintiff, from the Defendant having entered into a contract of which the Plaintiff cannot obtain a specific performance. I certainly recollect the time at which there was a floating idea in the profession that this Court might award compensation for the injury sustained by the nonperformance of a contract, in the event of the primary relief for a specific performance failing; and I have formerly seen bills praying such relief; but that arises from my having known the profession sufficiently long to recollect the time when the decision of Lord Kenyon in Denton v. Stewart (b) had not been formally overruled; but, at that time, very little weight was attached to it, and very few instances occurred in which Plaintiffs were advised to ask any such relief; and, for a short time, Sir W. Grant's decree in Greenaway v. Adams (c) added something to the authority of Denton v. Stewart, although he threw out strong doubts as to the principle of that case. This, however, lasted but a short time, for, Greenaway v. Adams occurring in 1806, Lord Eldon, in 1810, in Todd v. Gee (d), expressly overruled Denton v. Stewart; and, from that time, there has (a) 3 Sugden's Vendors and Purchasers, App. vii. and viii. (b) 1 Cox, 258. (c) 12 Ves. 395. (d) 17 Ves. 275. 1839. SAINSBURY V. JONES. 1839. SAINSBURY v. JONES. has not, I believe, been any doubt upon the subject. Certainly, during the thirty years which have elapsed since that time, I have never supposed the granting any such relief as being within the jurisdiction of this Court. Indeed, before that case, Sir W. Grant, in 1807, in Gwillim v. Stone (a), refused to follow his own decision in Greenaway v. Adams, because the Plaintiff did not ask a specific performance; that is, in a case precisely the same as the present; for, upon this appeal, the Plaintiff does not ask a specific performance. Had it been supposed that this Court had the jurisdiction contended for, every bill for a specific performance would have prayed compensation, in the event of the vendor proving not to have a good title. It is true that, in this case, the compensation sought is not against the vendor, but against a person who falsely assumed authority to sell; but this places the case still wider from the principle upon which this Court exercises its jurisdiction in cases of contract; because, as against such agent, there is no case of contract, but a mere claim for compensation, for damages arisen from there being none which the purchaser can enforce. In Williams v. Edwards (b) As to the 207. deposit, if the suit cannot be maintained upon other grounds, it certainly cannot be supported in merely seeking a return of that small sum. That also is a claim at law. and Kendall v. Beckett (c) this Court refused to grant such relief. In this case, however, the question does not arise; because the agreement and the bill state that the deposit was paid to Chitty, on account of Jones and Doggerell; and no person is now before the Court representing their interest. It (a) 14 Ves. 128. (c) 2 Russ. & Mylné, 88. It is unfortunate if, in prosecuting this claim in this Court, the Plaintiff has lost his remedy at law; but that cannot affect the decision of this case; and I cannot but observe that, so early at least as December 1834, the Plaintiff had full information of the facts of the case; for at that time he filed his supplemental bill against the committees of Jones. He then knew that he could not compel a specific performance of the contract; and having sought compensation for damages in a court which had not jurisdiction to award them, I think the decree of the Master of the Rolls, dismissing the bill, with costs, as against Chitty, was correct; and I am under the necessity of now adding to such costs the costs of the appeal. The appeal must be dismissed, with costs. 1839. SAINSBURY v. JONES. WORMALD v. MACKINTOSH. 1840. Jan. 24, 25. Nov. 12. had guaranteed the payment of a debt secured by a second THE question which, in this case, came before the A person, who Lord Chancellor upon an appeal from an order of the Master of the Rolls was, whether a person, named Stafford Price, who had become guarantee for the payment of a debt secured by a second mortgage, was a competent witness, vivâ voce before the Master, to prove that the first mortgage had, by certain dealings and transactions between the mortgagor and the first mortgagees, to mortgage, was tendered, in a suit refirst mortgage lating to the only, as a wit ness, vivá before the Master, to voce, prove that, by certain dealings and transactions between the mortgagor and the first mortgagees, but to which he had happened to be a party, the first mortgage had been, in part, satisfied; and he stated, on the voir dire, that he had ascertained that the mortgaged property was sufficient to pay both the first and second mortgages : Held, that his evidence was admissible. |