Doe d. Warren v. Bridges, d. Davis v. Davis, 182 d. Wilkinson v. Goodie, 892 d. Groves v. Groves, 558 d. Jacob v. Phillips, 692 d. Fowler v. Roe, 184, d. Woodall v. Woodall, Fewings v. Tisdal, 977 Flower, ex p., re Flower, 482| Follett v. Hoppe, 974 v. Wastell, 537 Forman v. Grey, 483 Fuller v. Willis, 233, 895 v. Watt, 91 v. Spiers, 294 Higginson v. Wilson, 1071 v. Maurice, 795 Hope v. Harman, 1097 Dormay v. Borradaile, 231, Gale, App., and Chubb, Horner v. Denham, 1036 Dorville v. Wolfe, 160 Downe (Lord) v. Thompson, Downing, App., and Luckett, Dunn v. Packwood, 242 Eardley v. Owen, 1047 Eduljee Byramjee, ex p. Par- see Murder case, 855 Eno v. Eno, 746 -- v. Scott, 291 Habershon v. Blurton, 161 1012 v. Kershaw, 553, 795 Jordan v. Kingham v. Lee, 4 L. Manley v. Bray, 521 Ireland v. Gordon, Midland Railway Company, re, | Oxford University College | Ramuz v. Crowe, 715 1095 Midleton e. Eliot, 742 Millen v. Dent, 818 Mills, John (in the Goods of), Mollett v. Wackerbarth, 1065 196, 260 Nash v. Collier, 1017 v. Boodle, 627 . Ricketts, 662, 833 627 -v. Stretton, 1008 Norton, ex p., re Robinson, 699 Parsons v. Gingell, 437 Patch v. Horlock and others, Payne, ex p., re Taverner, 568 pes, 155 Pennell v. Archbutt, 762 v. Naire & ors., 455 Plumer v. Macdonald, 899 Pott v. Clegg, 289 v. Flather, 735 Preston, ex p., 1039 Prior, App., and Waring, Queen (The) v. Cheek, 86 shire), 514 v. Landkey (Inhabs. of), v. Lankaster, 735 v. Leeds (Inhabs. of), 713, 1013 Richardson, re, 309 v. Chasen, 890 v. Mainwaring, 632 Rogers v. Kennay, 14 St. John's, Cardiff, re Church- St. Katherine Dock Company Sandford v. Grey, 472 Sanford v. Sanford, 322 Saunders v. Saunders, 738 v. Pascall, 550, 955 Shore v. Shore, 916 Shuttleworth, M. E. R., in re, Sibson v. Edgworth, 626 -- v. Lancaster and Car- v. Effingham, 896 Webster, ex p., re Acraman, v. Haygarth, 101 Willey v. Bignold, 309 (assignee of Brown, an insolvent) v. Chambers, Woolley v. Hetherington, 472 Wrightup v. Greenacre, 403 940 Yates, ex p., 33 Young v. Savill, 723 DECIDED IN ALL The Courts of Equity and Common Law, AND IN THE Admiralty and Ecclesiastical Courts. ROLLS COURT. ROBINSON T. WALL.-Nov. 9, 11, and 16. Vendor and Purchaser-Reserved Bidding-Costs. The Assignees of Sir Thomas C., an Insolvent Debtor, being anxious to accept an Offer of Lord M. for the Purchase of their Interest in certain Property, to which Sir T. C. was entitled during the joint Lives of himself and Wife, in her Right, for 35,000l., entered into an Arrangement with Lord M., the Terms of which were contained in a Deed, whereby Lord M. agreed to purchase the Interest of the Assignees for 35,000l., and the Assignees undertook to put up the Estate to Auction, pursuant to the Insolvent Debtors Act, without Reserve; and it was agreed, that if Lord M. should attend the Sale, and bid up to 35,000l., or any higher Sum, and there should be no higher Bidding than his, the Estate was to be knocked down to him at that Sum; but if there was a higher Bidding than 35,000l., and Lord M. did not bid higher, he was not to be bound by the Contract; and Lord M. undertook to bid 35,000l.; and if 35,000l. was not the highest Bidding, the Deed was to be null and void, at the Option of Lord M. And Lord M. was not to be bound by Particulars and Conditions of Sale, differing from the Terms of the Agreement, unless signed by him or his Solicitor. The Property was put up to Sale, the Particulars stating the Sale to be without Reserve; and Biddings were made on Behalf of Lord M. to a larger Amount than 35,000l., and the Property was knocked down to the Agent of F. for 50,000. Before the Purchase was completed, Sir T. C. died:-Held, on Bill for Specific Performance against the Purchaser, that the Agreement with Lord M. amounted to a reserved Bidding, and that the Purchaser was not bound to perform his Contract; and the Bill was dismissed, with Costs. The Purchaser, F., by his Answer, insisted that W. was not his Agent; and afterwards, at the Hearing, by his Counsel, admitted that he was:-Held, that he was bound to pay the Costs occasioned by his Denial of the mas Mostyn, and her sister Essex, without issue, became entitled under her father's will to an estate for life in possession in the estates thereby devised; and Sir the estates during the joint lives of himself and wife. Thomas Champneys, in her right, became entitled to Sir Thomas Champneys a second time took the benefit of the Insolvent Debtors Act in August, 1835, when the plaintiffs in this suit were appointed his creditors' assignees, and all the insolvent's interest in the estates was subsequently made for the payment of the crewas duly conveyed and assigned to them. Provision ditors under the first insolvency, and thus the plaintiffs' title became complete. Lady Champneys had no child; and in the year 1838, Lord Mostyn, whose wife had the next estate for life in the estates expectant on the death of Lady Champneys without male issue, was desirous of purchasing the interest of the assignees, and also of Lady Champneys, in the estates, with a view of enabling him and his son, Edward Mostyn Lloyd Mostyn, to bar the entail, and make certain arrangements respecting the property. With this view, he made proposals to buy the interests of the assignees, and also of Lady Champneys; the former for 35,000l., and the latter for an annuity of 400l., the grant of a beneficial lease, and certain other advantages. These proposals were accepted, and a deed was executed, embodying the terms on which the arrangement was based. It purported to bear date the 13th August, 1838, and to be made between the assignees of the first part, Sir Thomas and Lady Champneys of the second part, Lord Mostyn of the third part, and John Jones Bateman and Edward Laurance of the fourth Mostyn, being desirous of making a contract for the part. It recited, amongst other things, that Lord purchase of the estate for the whole life of Lady thereby devised, had made two distinct proposals for Champneys, under the will of her father, in the estates such contract: viz. first, he had proposed as the consideration for such contract, so far as related to the purchase from Sir Thomas Champneys and his assignees rents and profits thereof, from Michaelmas, 1838, and of all their estate and interest in the premises, and the also in the surplus of certain funds which had arisen from the estates, and were partly in court and partly in the hands of the provisional assignee of the Insolvent Debtors Court, and of the receiver of the estates, after certain payments thereout respectively, to give and pay the sum of 35,000l.; and, secondly, he had proposed as the consideration for the said contract, so far as related to the purchase from Lady Champneys of all her estate and interest, to grant to her an annuity of 4001. for her separate use, and a beneficial lease, male; with divers remainders over. Champneys took the benefit of the Insolvent Debtors theless, the said two proposals to constitute only one Sir Thomas and to do certain other things for her benefit: neverAet in October, 1827, but no creditors' assignees were contract, and to be carried into effect as one entire appointed under that insolvency. In April, 1831, purchase, except in the event of the death of Lady Agency. Sir Roger Mostyn, Bart., by his will, dated the 11th April, 1793, devised certain real estates of large value, after payment of certain charges to which he subjected them, in strict settlement, to the use of his son, Thomas Mostyn, for life; with remainder to his issue in tail; with remainder to his daughter, Essex Mostyn, for life, and to her sons in tail male; with remainder to his daughter, Lady Champneys, the wife of Sir Thomas Champneys, for life, and to her sons in tail male; with remainder to his daughter Elizabeth, afterwards the wife of Lord Mostyn, for life, and to her sons in tail VOL. XI. recited, that Sir Thomas Champneys was desirous that such contract should be entered into with Lord Mostyn, and that the said sum of 35,000l. should be paid to the assignees; and that Lady Champneys was desirous that such contract should be entered into, and was willing to accept the second proposal of Lord Mostyn; and that the assignees were of opinion, that it would be extremely advantageous for the creditors of Sir Thomas Champneys under his second insolvency to accept the first proposal of Lord Mostyn; but they were advised that they had no power to accept the same, and that it was their duty to make sale of their estate, right, and interest, by public auction, pursuant to the directions contained in the Insolvent Debtors Act of 7 Will. 4: and also, that the assignees were willing forthwith to put up their interest to sale by public auction, pursuant to the directions of the act, and to sell the same to Lord Mostyn if he should be the highest bidder at such sale; and that Lord Mostyn was willing to attend at such sale, and to bid the sum of 35,000l. for the purchase of the interest of the assignees, on the understanding, that if a higher bidding should be made at such sale, the same should be accepted, and the assignees should not in that event be required to accept the said sum of 35,000l. It was also recited, that it was the intention of Lord Mostyn, in making such purchase during the life of Lady Champneys, to become the beneficial holder of the estates, from Michaelmas, 1838; and that it was expressly understood, and was to be a condition of such purchase and part of the contract of the same, that all necessary parties, were to concur, at any time after the completion of the purchase, or after a definitive and binding contract for such purchase should be made, and the title accepted, in order to enable Edward Mostyn Lloyd Mostyn, or the heirs male of his body, or any subsequent tenant in tail of the premises under the will of Sir Roger Mostyn, at the request or with the concurrence of Lord Mostyn, or his executors or administrators, to make a disposition of the premises under the Act for the Abolition of Fines and Recoveries. And it was by the deed witnessed, agreed, and declared, amongst other things, that Lord Mostyn contracted to purchase an estate for the whole life of Lady Champneys in the property in question, and that Lord Mostyn should, as the price or consideration for the purchase of the estate and interest of Sir Thomas Champneys, and his assignees and creditors in the premises, pay to the assignees the sum of 35,000l.; and that he should, as the price or consideration for the purchase of the estate and interest of Lady Champneys, grant such rent-charge, &c., as therein mentioned. And it was provided, that the 35,000/. should carry interest at 47. per cent., from Sept. 29, 1838, and that the contract thereby entered into should be deemed one entire contract, so that Sir T. Champneys and the assignees should not be at liberty to insist on the performance of the same, so far as related to the interests intended to be purchased from them, leaving an expectant or ulterior interest in the said Sir Thomas and Lady Champneys, or vice versâ; but nevertheless, in case Lady Champneys should happen to die after such sale by auction, and such purchase by Lord Mostyn at such auction, as thereinbefore expressed to be intended, should have taken place, but before the actual completion of the said purchase, then and in that case Sir Thomas Champneys and the assignees should have a right to insist on the payment of the said sum of 35,000l. And it was agreed, that a good and marketable title to the property during the whole life of Lady Champneys, deduced from the will of the said Sir Richard Mostyn, and free from the debts, assignments, and insolvencies of Sir Thomas Champneys, and other incumbrances, except as therein particularly mentioned, should be made out and delivered at the costs and charges of the assignees; but if such title should not be made out to the satisfaction of Lord Mostyn or his counsel, either party should be at liberty, within twenty-one days after notice on behalf of such party, to make void the said indenture, and the contract therein contained; and that Lord Mostyn should receive a conveyance, to be prepared at his expense, from Sir Thomas and Lady Champneys, and the assignees, and all other necessary parties; and that Lord Mostyn should and would immediately afterwards grant such rent-charge of 4007., and such lease as therein before mentioned, to a trustee to be appointed by and on behalf of Lady Champneys; and that the assignees would, at their own costs and charges, immediately proceed to take the several steps directed by the act of Parliament (7 Will. 4, c. 57) to be taken previously to the sale of the real estates of an insolvent debtor; and that they would use their utmost endeavours to obtain the authority required by the said act to sell their estate, right, and interest in the property in question; and that they would, if they obtained such authority, thereupon put up such estate, right, and interest to sale by public auction, describing the same; and that they would permit such sale to take place, without any reserved price, or bidding in the nature of a reserved price, save and except so far as the proposed bidding of the sum of 35,000l. by Lord Mostyn might be deemed a reserved price or bidding; and it was agreed, that if Lord Mostyn should at such sale bid the said sum of 35,000l., or any higher sum, for such estate, right, and interest, and there should be no bidding higher than his, the said estate, right, and interest should be knocked down to him at such bidding of 35,000l.; but if such bidding of 35,000l. should not be the highest bidding at such sale, and Lord Mostyn should not think fit to make any higher bidding, then it was agreed that such estate, right, and interest should not be knocked down to him, and he should not be the purchaser thereof, or in any manner bound by any of the covenants and agreements therein contained; and Lord Mostyn undertook to bid at the sale, subject to the conditions and stipulations therein contained, the sum of 35,000l. for the purchase of the estate, right, and interest of the assignees; but if the said bidding of 35,000l. should not be the highest at such sale, the said indenture was to be thereupon, at the option of Lord Mostyn, null and void to all intents and purposes whatsoever. And it was provided, that Lord Mostyn should not be bound by any particulars and conditions of sale which might be prepared by or on behalf of the assignees for the purposes of such last-mentioned sale by auction, differing in any respect from the terms and agreements therein contained, unless a copy of such particulars and conditions should, previously to such sale, be signed by him or his solicitor. In pursuance of this arrangement, a meeting of the creditors was called by the assignees; and the terms of the arrangement with Lord Mostyn being stated to them, a resolution was passed, that the estate should be put up to sale by auction on the 18th November, 1838, and that the sum of 35,000. should be fixed as a reserved bidding. The sale took place on the day fixed, pursuant to certain particulars and conditions of sale, which were prepared by the assignees, and approved of by the counsel of Lord Mostyn. The particulars stated that the sale was madewithout reserve. There were a great number of biddings at the sale, and the property was ultimately knocked down to the defendant Wall, who, it was now admitted, was the agent of the defendant Flight, though Flight had denied this in his answer, and evidence had been entered into to prove the fact. Several biddings were made on the part of Lord Mostyn, the last being, as was stated, 49,8007. The usual contract was entered into, and a deposit of 5000l. paid. On the 1st November, 1839, Sir Thomas Champneys died, and the purchase not having been then completed, by |