1811. HILL 0. BARCLAY. lord would have his Premises in excellent Condition from their not being done sooner. The Court is surely not authorized so to deal with Contracts. I do not mean to apply these Observations to Cases of Accident and Surprise; the Effect of the Weather, for Instance, in this Case, or permissive Want of Repair; the Landlord standing by and looking on. A particular Case might perhaps occur, such as are put by Lord Erskine in Sanders v. Pope, in which it would be demonstrable, that the Landlord would sustain no Injury by the Relief: but it is taking a prodigious Liberty with a Contract, by which the Tenant has undertaken forthwith to repair, and to keep the Premises in Repair constantly; in order that the Landlord may during the whole Currency of the Term have the Property, if returned upon bis Hands, in exactly the State he intended. If this Doctrine can be maintained in general Cases, what is to be said of the Case, where, the Court administering this Species of Equity, the Tenant has become Bankrupt before the End of the Term, the Assignees refuse to take to the Lease, and the Premises are thrown back to the Lessor in a State of utter Non-repair? Would that be any thing like an Execution of the Contract? So in the Case of Copyhold Estate, where there is a Forfeiture upon Waste. The Distinctions, that have been taken, go, not only to the Question, whether it is perfectly clear, that Compensation for the Damage can be made in this Respect, that the Landlord can be placed in the same Situation to all Intents and Purposes, but also to another very material Consideration; whether the Non-payment of the Money, or the Waste, was wilful, or not. There may be Cases, where, morally speaking, a Court of Equity would interpose with much less Reluctance than in another Sort of Case; where, for Instance the Landlord offered to overlook the past Negligence on Condition, that that the Repairs should be done within Three Months; if the Tenant still refused, upon what Ground, having wilfully refused, and violated all his Covenants, could he desire a Court of Equity to place him in exactly the same Situation as if he had performed them, and demand a Decree, giving him the Benefit of the Offer, which he had positively refused? 1811. HILL v. BARCLAY, formance of an So, with regard to other Cases, the Doctrine I have repeatedly stated is all wrong, if it is to be taken, that Relief is to be given in case of a wilful Breach of Covenant. I allude to Cases, where I have intimated my Opinion, that a Tenant, who has committed Waste, treated Tenant, havthe Land in an Unhusband-like Manner, and been guilty ing committed of various Breaches of Covenant, for which the Lessor Breaches of Covenant by had a Right of Re-entry, should not have a specific Per- Waste, treating formance of an Agreement for a Lease. The Effect of the Land in an omitting Repairs may produce as much Mischief to the Unhusbandlike Estate as Waste; the latter is as capable of Compensa- Manner, &c. tion as the former; and there is no Difference between not entitled to Covenants, thus resting in Damages, and another, against specific Perthe Breach of which it is admitted the Court will not relieve, a Covenant not to assign without Licence; upon which it is clearly settled, that, if an Ejectment is brought upon a Right of Re-entry reserved, the Lessee can have against For.no Relief: he cannot shew, that by the Assignment the feiture by Lessor sustains no Damage; that on the contrary he, the Breach of CoLessee, is a Beggar, who could not pay the Rent, and venant not to the Assignee a solvent Tenant; that the Lessor is there- assign without fore in a better Condition; having two Persons answerable to him instead of one Tenant under the Circumstances I have mentioned. The Answer is, that the Court cannot estimate the Damage: the Fact, as it is alledged, may be true at this Moment: but the Consideration, whether the Lessor is to gain or lose by having a Tenant put upon him, must run through the whole Continuance Agreement for a Lease. No Relief Licence. of 1811. HILL v. BARCLAY. of the Lease: it is sufficient, that the Lessor insists upon his Covenant; and no one has a Right to put him in a different Situation. The Distinction has been taken, that Relief may be had against the Breach of a Covenant to pay Money at a given Day; but, not, where any Thing else is to be done. So the Case of Forfeiture of a Copyhold by Acts, which really do no Damage to the Lord, as where a Tenant for Life forfeits his Estate, stands on the same Ground. In all these Cases the Law having ascertained the Contract, and the Rights of the contracting Parties, a Court of Equity ought not to interfere. With regard to the Circumstances of this Case I take the Lessor, calling for the Repairs to be done within Three Months, to have dispensed with his Right of Entry under the general Covenant: but, the Premises being at that Period in a State of gross Dilapidation, the Lessor says, he, who was entitled to have them put in Repair at the Commencement of the Lease, and to have them kept in Repair to that Time, having also, as being entitled to the Benefit of all Circumstances, affecting the Value of the Lease in future Time, the Right to require the Repairs to be done within Three Months, did make that Requisition; expressly signifying, that, if they were not done within that Time, he would avail himself of his legal Right. Not one Step was taken in Compliance with that Requisition. Am I then to speculate under such Circumstances; and determine, that it is so clear, that the Repairs, if done in future, will be equally, or more, beneficial, that all the Contract between them should be undone? My Opinion is, that this is more than is authorized by any Decision; and therefore the Injunction must be dissolved. PARR, THIS PARR, Ex parte (a). 1811, May 15. Creditor's Right in Bank and avail him self of all collateral Securi ties from third HIS Petition stated, that in February, 1811, à Commission of Bankruptcy issued against Leigh and Armstrong, of Liverpool, carrying on Trade under the ruptcy to prove Firm of Leigh and Armstrong; and that they were indebted to the Petitioner James Parr; as surviving Partner of John Parr, deceased, in the Sum of £12,238: 14s: 2d. for Principal and Interest on Fourteen Bills of Exchange, Persons, to the drawn by Persons at Demarara, under the Firm of Bru- Extent of 20s. mell, Heyliger, and Co., in Favor of John and James in the Pound. Parr, and accepted by the Bankrupts; which Bills were given by Heyliger, and Co. to John and James Parr for Monies, actually received by Brumell and Co. to and for the Use of John and James Parr to the full Amount. constituting A Debt of £4340 was claimed by the other Petitioners distinct Firms: Shaw and Co., under similar Circumstances. Proof against the Acceptor Bills drawn and accepted by the same Persons, as Value of a Seducting the curity from the Drawer. Separate Creditors not entitled to vote The Petition then stated, that, Leigh and Armstrong without denot having paid the Bills, Brumell and Heyliger, being pressed by the Petitioners, assigned to them Two Plantations at Essequibo and Berbice, in America, in Mortgage, for the Purpose of securing the Balance due upon the Bills, by Indentures, dated the 1st of January, 1806; aud was expressly covenanted, agreed, and understood, that the Security, thereby given, should not be considered as any Waiver of the Security, which the Petitioners Purr and Shaw respectively should have against the Acceptors of the Bills, or any other by virtue of them, except Bru it (a) 1 Rose's Bankrupt Cases, 76. in the Choice of Assignees Ground a new rected; though the Lord Chancellor would not interfere, if a Creditor had been excluded by Mistake, not for the Purpose of preventing his voting. VOL. XVIII. F mell 1811. PARR, Ex parte. mell and Heyliger; nor against them farther than giving them Time for Payment. The Petition farther stated, that the Commissioners rejected the Proof of the Petitioners, until they had disposed of the Mortgage; or until it should have been valued; holding, that they could only prove the Balances of their respective Debts, after deducting the Price or Value of the Mortgage. The Petitioners stated to the Commissioners, that, if allowed to prove, they should vote for Thomas Parr to be the Assignee; who was proposed by another joint Creditor; and the Majority in Value of the joint Creditors present, whose Debts amounted to £10, voted for Thomas Parr: but the Commissioners declared, that he was not elected Assignee; and, the Majority in value of the separate Creditors present, whose Debts amounted to £10, having voted for Three other Persons, and the Amount of the Debts of those separate Creditors exceeding the Amount of the joint Creditors, who had been allowed to prove, and who voted for Parr, the other Three Persons were declared the Assignees. The Petition prayed, that the Petitioners may be admitted Creditors under the Commission, and be paid Di vidends rateably with the other joint Creditors; and that Thomas Parr may be declared to have been duly elected sole Assignce; or, that a new Chice of Assignees may be had. An Affidavit, made by the Bankrupts, stated, that previously to 1799 they carried on Business at Liverpool as Merchants under the Firm of Leigh and Co., and under the Firm of Armstrong and Co. at Demarara, and in 1799 they took into Partnership with them at Demarara Heyliger, and soon afterwards Brumell. The Deponents put an End to that Partnership in 1801: the Accounts were never finally settled; and a considerable Balance will be |