Roberts v Marchant
| Jurisdiction | England & Wales |
| Judgment Date | 11 November 1843 |
| Date | 11 November 1843 |
| Court | High Court of Chancery |
English Reports Citation: 41 E.R. 672
HIGH COURT OF CHANCERY
roberts v. marchant. Jan. 25, Nov. 11, 1843. The only exception to the rule that the Appellant is entitled to begin is where a Defendant appeals from the whole of a decree. To a suit by the personal representative of a vendor of real estate for specific performance of the contract of sale, the real representative of the vendor is a necessary party. Thia was a suit by the administrator of a vendor of real estate against the purchaser for specific performance of the contract of sale. The purchaser having by his answer suggested that the heir at law of the vendor was a necessary party, the Plaintiff set the [371] cause down upon that objection, under the 39th Order of August 1841, and Vice-Chancellor Wigram having allowed the objection, the Plaintiff appealed from that decision. 1 PH. S72. ROBERTS V. MARCH ANT 673 The appeal now coming on to be heard, Mr. Tripp, for the Defendant, claimed the right to begin on the ground that he had begun in the Court below, and that this was merely a rehearing of the cause upon the same objection. Mr. Wabefield, for the Plaintiff, contended thab the case was analogous to an appeal from an order allowing a plea or demurrer, in which cases the practice was for the Appellant to begin. (1) the lord chancellor [Lyndhurst]. It appears that the only exception to the rule that the Appellant is entitled to begin is where the Defendant appeals from the whole of a decree. And the reason for that exception I take to be this, that the Plaintiff may at the rehearing adduce new evidence, and shape his case differently; and it is therefore convenient that he should in all such cases begin, in order that he may state to the Court at once how he shapes his case. But that reason does not apply where the subject of the appeal is a particular objection to the frame of the suit. I think, therefore, that in these cases the general rule should prevail, and that the Appellant ought to begin. [372] Mr. Wakefleld and Mr. Rogers, in support of the appeal. The only proper parties to a suit for specific performance are those who were parties to the contract, or if they be dead, the parties who represent their rights under it, Tasker v. Small (3 Myl. & Cr. 63). Now the right of a vendor under a contract for the sale of real estate is simply a right to the purchase-money, and that right upon his death devolves upon his personal representative. His heir is as completely disinherited by the contract as he would be by a devise, or by a...
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