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Smith on the Demise of Dormer against Packhurst et Al'

Nominate Series English Reports Cited authorities 1 Cited in 24 Precedent Map Related
Vincent
JurisdictionEngland & Wales
Judgment Date01 January 1741
Date01 January 1741
CourtHouse of Lords

English Reports Citation: 26 E.R. 881

WRIT OF ERROR IN THE HOUSE OF LORDS FROM THE JUDGMENT IN B. R.

Smith on the Demise of Dormer against Packhurst et al'

Case 47.-dormer versus fortescue, April 28, 1744. [See Hicks v. Sallit, 1854, 3 De G. M. & G. 813 ; Howard v. Earl of Shrewsbury, 1874, L. K. 17 Eq. 400.] S. G. ante, 2 vol. 282 ; 18 Vin. 208, pi. 2, 226, pi. 23 ; 21 Vin. 474, pi. 2, S. G.-Clear both in law and equity, and from natural justice, that the plaintiff, from the death of his father, the time when his title accrued, is intitled to the rents and profits. This cause came on again before the court upon the equity reserved. Mr. Solicitor General, counsel for the plaintiff, said, the question is, Whether this court can decree the plaintiff an account of rents and profits from the time of his title accruing, which is from the death of his father Eusebe Dormer, who died the 3d of September 1729. The plaintiff was obliged to come into this court, in order to have the family settlement produced at the trial at law, for the defendant wrongfully detained it, notwithstanding he had got all the four parts in his own hands, and pleaded himself a purchaser for a valuable consideration. Lord Talbot, at the hearing, directed the deed to be produced at the trial at law, in order to determine the title there, and the bill to be retained for a twelvemonth, and a term for years to be removed out of the way, and all further directions to be reserved till after the trial. The original bill, besides, prays general relief. (And that the deed of settlement might be deposited in court for the plaintiff's benefit. Beg. Lib. A. 1734, fol. 325.) The plaintiff's title having been established at law, he is now intitled to a complete relief, an account of the rents and profits. For if he has not the rents and profits as well as the estate, he has not complete justice done. There are cases where at law a person may not recover rents and profits, and yet this court will direct it, where it has a proper jurisdiction, as in an action for rents and profits, which is in the nature of an action of trespass, if the person dies against whom it is brought, moritur cum persona, but this court will direct an account of rents and profits notwithstanding. [125] It is said, that if the court decree an account of rents and profits, that it must begin only from the time of the supplemental bill. But the court, wherever they decree it, do it from the time of the title's accruing. There were no laches or neglect on the part of the plaintiff, for his father died the latter end of 1729, and the plaintiff brought his ejectments in 1731, and his original bill in 1732. By the statute of Gloucester, damages in an assize are given, and after a trial in ejectment, there can be no other way of measuring the damages, but by rents and profits. It was objected at a former hearing, that the statute of limitations has barred the 876 DORMER V. FORTESCUE 3 ATK. 126. plaintiff from carrying back the account any further than the filing the supplemental bill, six years having incurred before it was brought. But when this matter came on, March 20, 1741, and the demurrer and plea was argued, this objection was over-ruled, and is now out of the question. Lord Chancellor asked if the original bill charges the defendant Mr. Justice Foriescue to be in possession of the estate, for it is admitted that it does not pray specifically an account, of rents and profits, but only general relief. Mr. Solicitor General- The bill indeed does not charge possession in the defendant, but it sets forth that the plaintiff has brought ejectments against him. The cases cited by Mr. Solicitor General and the rest of the counsel for the plaintiff, were Coventry versus Hall, 2 Ch. Gas. 134, id. in 2 Rep. in Chan. 134. The Duke of Bolton versus Deane, Free, in Eq. 516. Bennet versus Whitehead, 2 P. Wins. 644, 1 Vern. Anon. 105. After they had finished, his Lordship adjourned the cause ; and on the 2d of June 1744, it came on again, when Mr. Attorney General for the defendant said, that the avowed end of the original bill was not to try the right in a court of equity, for it does not pray possession, or the title-deeds to be delivered up, or the estate ; neither does it ask an account of the rents and profits, nor charge the defendant with the receipt of them. [126] The decree of this court, and of all courts, must be secundum allegata, as well as probata. The decree has been already made for all the purposes prayed by the original bill, namely, that the deed should be produced, and a term for years removed out of the way at the trial at law. Where the right can only be determined at law, and the plaintiff cannot come here originally for the determination of the right, there is no instance where this court will decree an account of rents and profits. The plaintiff has gone altogether on the foundation of its being a legal right, states it so in his bill, and has not prayed the court to determine the right in any shape whatever. The court cannot say now, that the final right to the inheritance is determined, for Mr. Justice Fortescue may, upon the new ejectment brought by him, recover it again ; and therefore, if the court should decree an account of rent and profits, it would be decreeing at the same time, that the right is absolutely determined, and for this reason, while the ejectments are depending, this court cannot properly decree an account of rents and profits. In the case of Coventry versus Hall, the court there decreed...

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