Phelps v Prothero
| Jurisdiction | England & Wales |
| Judgment Date | 01 January 1847 |
| Date | 01 January 1847 |
| Court | High Court of Chancery |
English Reports Citation: 64 E.R. 123
HIGH COURT OF CHANCERY
For subsequent proceedings, see 7 De G. M. & G. 722; 44 E. R. 280.
[274] phelps v. prothero. Nov. 25, Dec. 1, 1847; Feb. 22, 23, 24, March 3, 27, " '26, 1848; March 13, 1849. [For subsequent proceedings, see 7 De Gr. M. & GL 722; 44 E. E. 280.] An agreement was entered into between a lessor and lessee, for releasing the lessee from all liability on certain payments being made by the lessee to the lessor, and on the lessee assigning to the lessor all his interest in the lease. At the date of the agreement the lessor had notice that the lessee had demised the property by way of mortgage, with a power of sale which had become absolute. In a suit by the lessee for a specific performance of the agreement, one of the witnesses deposed that this power of sale had been exercised, but that fact was not put in issue by the pleadings. Held, that it might constitute a defence, if the lessor had no notice of it, and that the Plaintiff was entitled to the option of having his bill dismissed without costs, or of having ah inquiry as to the circumstances of the sale. A witness examined before the decree for the Defendant was by order examined before the Master under the decree for the Plaintiff, vivA voce. Held, that the Defendant might cross-examine him without an order. The result of the inquiry being that the Defendant had notice of the power of sale having become absolute when he entered into the agreement, and had notice of the sale when he put in his answer, but not previously, the Court directed a specific performance of the agreement, and an injunction against proceedings at law on the covenants in the lease. After the Plaintiff had obtained the common injunction, the Defendant put in his answer, and denied the commission by himself or his agents of certain acts which it was considered material to the Plaintiff's case to prove to have been so committed. The Defendant then discovered that the denial was, as to the acts of his agents, 124 . PHELPS V. PROTHERO 2 DE G.& SM. 275. erroneous. He afterwards obtained an order nisi to dissolve the injunction, which, after argument upon the erroneous answer, was made absolute. Afterwards, on an affidavit ascribing the error in the answer to incorrect information, he moved for leave to file a supplemental answer. The Plaintiff opposed the motion, and made an affidavit that he had intimated an intention to prosecute the Defendant for perjury. On the Defendant denying, by affidavit, that he had heard of any such intention, he was allowed to file a supplemental answer. Neither the 69th Order of April 1848, nor 6 & 1 Viet. c. 85, nor both, authorise the Court to give a Plaintiff liberty to examine vivd voce a sole Defendant in the prosecution of inquiries under a decree. Although a witness cannot refuse to produce documents on the ground that they will not be evidence between the parties, the Court may take the circumstance into consideration, and will not order the witness to produce them, unless it is probable that the documents may be used in evidence. This was a suit to enforce a specific performance of the following agreement:- "August 12, 1844. " In the Queen's Bench. Between Thomas Prothero, Plaintiff; and William Truman Harford Phelps, Defendant. "In consideration of your withdrawing the record in this action, I hereby undertake to pay you to-morrow morning the sum of £210 by a cheque on my bankers, in addition to the sum of £300 for which the Defendant has given his bills at one, two and three years' date, you hereby undertaking to discharge the Defendant from all further liability to the rent and covenants of the lease, which is the subject of this action, upon his assigning to you all his estate and interest in such lease. "W. S. cartwright." " To Thomas Prothero, Esq." " I accept of the within-mentioned terms of compromise, [275] and undertake to perform my part of the within arrangement. "THOMAS prothero." The Plaintiff by his bill also sought to restrain the Defendant from prosecuting an action commenced by him against the Plaintiff for arrears of rent claimed by the Defendant to be due from the Plaintiff under the lease mentioned in the above agreement. The Plaintiff was at the time of entering into the agreement, and the Defendant had formerly, been, a solicitor. The lease referred to in the agreement was made by an indenture, dated the 20th of February 1840, whereby the Defendant demised a colliery called the New Waterloo Colliery, and the use of a tram-road made by the Defendant, and of the tram-plates and machinery thereon, to the Plaintiff, for six years, at a galeage rent therein mentioned; and the Plaintiff covenanted with the Defendant to deliver up to the Plaintiff, at the end or sooner determination of the term, the tram-plates and machinery therein mentioned, or to pay the price at which the same had been valued; and the Defendant covenanted with Plaintiff that if, at the expiration of the six years, any coal should remain at a certain part of the demised colliery unworked, he would grant a further lease thereof for fifteen years. The Defendant examined the ingrossment with the draft, and executed the original lease, and exchanged the original for the counterpart executed by the Defendant. Soon after the lease had been granted, and on the 24th of March 1840, the Plaintiff executed a mortgage, whereby he demised the colliery with the appurtenances for the term created by the lease of the 20th of February 1840 (wanting one day), to a Mr. Thomas Cartwright. This security contained a power of sale. Mr. W. S. Cartwright, as the agent for the mortgagee, immediately afterwards entered into possession of, and worked the colliery. [276] Circumstances were stated in the bill, shewing that the Defendant, at the ZDEG.&SM.277. PHELPS V. PKOTHERO 125 time lie entered into the agreement of the 12th of August 1844, had notice that the New Waterloo Colliery was included in some security given by the Plaintiff. The several bills of exchange, mentioned in the agreement of 1844, were given and paid in due course; and it was alleged by the Plaintiff that the Defendant took possession of the colliery and tram-plates and machinery in September 1844. The term of six years expired on the 25th of March 1846, and no application for renewal was made. The Plaintiff at that time offered to assign to the Defendant all his estate and interest in the colliery, and required the Defendant to execute a release to him from further liability to rent and covenants, and in November 1846 sent to the Defendant's solicitors a draft of such release; but in the course of negotiation, and in December 1846, the Defendant's solicitors required the particulars of any mortgages which had been executed by the Plaintiff, and that the original lease should be given up in exchange for the release; and they threatened, if the original lease were not given up, to bring an action for the arrears of rent accrued due on the lease, subsequent to the date of the agreement of 1844. This was the first intimation that rent would be demanded. The lease not having been delivered up, the Defendant commenced an action of covenant in the Court of Exchequer against the Plaintiff for arrears of rent; and at the Monmouthshire Assizes in August .1847 he obtained a'verdict for £2187, 18s. for rent due subsequent to the agreement of 1844, until the expiration of the lease. Under these circumstances, the Plaintiff filed this bill for specific performance of the agreement of the 12th of August 1844, and praying that the Defendant might be restrained by injunction from further proceeding with the action; and [277] that the Defendant might be ordered to execute a release to the Plaintiff of the rents and covenants of the lease, the...
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Prothero v Phelps
...with the appeal motion. The details of the transaction which led to the litigation are stated in the report of Phelps v. Prothero (2 De G. & S. 274); but the following summary, which is transposed to this place from the judgment of Lord Justice Turner, will be found sufficient for the purpo......
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Lexcray Pty Ltd v Northern Territory of Australia
...‘some probability … [of the documents] being useful for some purpose between the parties’ — Phelps v Prothero (1848) 2 DeG & Sm 274 at 290, 64 ER 123 at 130; ‘so far as it is necessary in the proper conduct of the litigation’ Waind v Hill and anor (supra) at 384; and ‘that [which is] requis......