annuity on the rectories of St. Mary-on-theHill and Delamere, and further secured it by a warrant of attorney.

In the beginning of 1818, the annuity being in arrear, the plaintiff sued out a writ of levari facias on the judgment, which had been entered upon the warrant of attorney, and proceeded to a sequestration of the rectory of St. Mary-on-the-Hill. The right of presentation to that living belonged to Robert Hill, the father of Rowland; both of these gentlemen were exceedingly desirous that the sequestration might be withdrawn, inasmuch as the continued enforcement of it would be an impediment to the execution of a plan, which the father entertained, of selling the advowson of St. Mary, and of applying part of the proceeds for the benefit of the son; and likewise to a scheme, which they were then prosecuting, for obtaining from the crown, through the mediation of the bishop of the diocese, an augmentation of the rectory of Delamere.

The bill, after stating these circumstances, alleged, that the father and son, to induce the plaintiff to withdraw the sequestration, proposed to the plaintiff's solicitor to give a joint bond for securing the arrears of the annuity, and to redeem the annuity itself out of the proceeds of the sale of the advowson, and that this proposal was accepted by the plaintiff. The joint bond was executed, the sequestration was withdrawn, and the advowson was sold, in August 1819, for upwards of 7000l. ; a great part of which was applied in discharge of debts of the son. Shortly afterwards, Rowland Hill was inducted into the living of Delamere, and thereby vacated the rectory of St. Maryon-the-Hill. Thus the plaintiff lost the security which he had on the latter benefice; and the former was altogether unequal to meet the accruing payments of the annuity. The son was insolvent, and out of the jurisdiction; and the father, having refused to comply with his alleged promise to redeem the annuity out of the proceeds of the sale of the advowson, the bill was filed to compel him to redeem the annuity upon the terms upon which it was redeemable according to the original indenture.

The defendant Robert Hill, by his answer, insisted, that the sequestration was withdrawn only on consideration of the

joint bond given for the payment of the arrears for the annuity then due, and that he had not bound himself to apply any part of the proceeds of the sale of the advowson to the redemption of the annuity-asserting, first, that he had not made any promise or agreement to do so; and secondly, if he had, that such promise or agreement was without consideration.

Mr. Bell, Mr. Horne, and Mr. Matthews, for the plaintiff, argued, that there was contained in the correspondence of the defendant Robert Hill, with the solicitor of the plaintiff, such an agreement to redeem the annuity, as a court of equity would compel him to perform, The parts of the correspondence, on which they principally relied, were stated by his Honour in the judgment which he pronounced.

Vice Chancellor.-The single question here is Has the plaintiff proved, not merely that Robert Hill assured him that he would, out of the proceeds of the expected sale of the advowson of St. Mary-onthe-Hill, redeem the annuity granted by his son (for a mere naked promise, given by a stranger, without consideration, cannot, however explicit in its terms, be enforced in a court of justice), but that Robert Hill entered into a contract, that, if the plaintiff would suspend legal proceedings, he would redeem the annuity out of the above-mentioned fund.

Throughout this case, one sees clearly, that the plaintiff did in fact suspend proceedings against the son, in reliance upon the father's promise, that the annuity would be redeemed. But it is not enough to make out a mere promise, on the part of the father, that he will sell the adowson and redeem the annunity: what must be proved is, an agreement, that if the plaintiff does some certain thing for the benefit of the son, then he, the father, will redeem the annuity; and it is not without reluctance that I find the conclusion forced upon methat Mr. Robert Hill has not bound himself by a valid contract to do that, which the plaintiff, relying upon his assurance, considered that he had a right to expect from him.

The first letter relied on by the plaintiff, is that of the 31st of October 1817, addressed to the plaintiff's solicitor; in which Rowland Hill says. "I am come over to

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Buxton for the purpose of laying my affairs before my father. He has agreed, that the advowson of St. Mary's shall be sold, in order that the annuities may be redeemed. It is needless to add, we conclude that your clients will be content with this arrangement." Then comes a postcript signed by the father:-"My son Rowland having consulted me upon the above subject, I entirely agree with him as to the sale of the advowson of St. Mary's, and consent thereto." This is a direct assurance given by the father, that in order to redeem the annuity, he will immediately sell the living. But assurance is not enough; it is not a stipulation, that, if Simpson would not proceed in enforcing his legal remedies, he, Robert Hill, would redeem this annuity. Even if the assurance had been accompanied with such a stipulation, it would still have been necessary to go on and prove acceptance, by the other party; for, till such acceptance, the matter at most would be mere proposal. Now, it is clear, that the plaintiff's solicitor did not consider his client as having made any engagement not to avail himself of his legal remedies: for in a letter, dated the 11th of February, 1818, and addressed to Robert Hill, he says, "As nothing has been done on the part of Mr. Rowland Hill, my clients have become extremely dissatisfied, and I am now much blamed by them for not proceeding, and which I can no longer avoid, however painful the consequences may be." This threat to proceed is conclusive evidence, that he did not think there existed any contract, which precluded him from employing legal process.

There is another part of the correspondence, on which the plaintiff has relied. In a letter of the 7th of April, 1818, Mr. Robert Hill says "I am confident the living will very soon be sold, and your debt paid." This again is mere assurance. But then there comes a letter of the 14th of the same month, from which counsel have endeavoured to deduce a contract, that, if the plaintiff would withdraw his sequestration, Mr. Robert Hill would enter into a bond for the payment of the arrears, and would sell the living. The words of Mr. Robert Hill's letter are "I expected as a thing of course, that, if I joined in a bond, both the execution and the sequestration would be stop

ped; and then there will be less impediment in the way of the sale of the living:" and the argument founded on that passage is, that the sale of the living is one of the conditions, on which he proposed that the execution and sequestration should be stopped. Such is not the fair or true construction. Heis anxious that the sequestration and execution should be withdrawn ; as a consideration to induce the solicitor to withdraw the process, he offers to give his bond for the arrears; and he mentions, not as a condition of the withdrawal of the sequestration, but as a reason for his anxiety to have it withdrawn, that there will then be less impediment to the sale of the adowson. It was in this light that it was viewed by the parties themselves; for the answer to it says—" I beg to assure you that the writs of sequestration and execution shall be immediately withdrawn on your executing the bond for securing the arrears due." Here the solicitor of the plaintiff treats the execution of the bonds as the sole consideration for the withdrawal of the execution and sequestration; that withdrawal is not once referred to as proceeding upon the condition, that the living should be sold: though the sale is alluded to by the father, as furnishing the motive, which interested him in having the sequestration removed.

There is also a letter of the 24th of December, 1819, (a date subsequent to the sale,) in which Mr. Robert Hill says "I cannot now state so exactly when I wish to redeem the whole of my son's debts to your clients, as I could have done when I first wrote to you on the subject, and when I had the whole of the purchase money for the living of St. Mary's, Chester, in my hands." But even if this could be construed into an agreement or a promise, still it would be a promise without consideration.

Upon the whole, I am of opinion that this plaintiff has not made out his casethat, though it is plain that at the time when he withdrew the sequestration, he did so for the purpose of assisting the father in the sale of the advowson, and from confidence in his assurance, that, as soon as the sale was effected, the annuity would be redeemed, yet this understanding of the parties was not put into a legal form-that the father's assurances were bare naked

promises, without consideration-and therefore, that I must dismiss the bill as against Mr. Robert Hill.

In a case, however, of a nature like the present, I cannot make him pay the defendant's costs; let the dismissal, therefore be without costs.

The plaintiff, after stating that he had made certain applications to the defendant, set forth some letters which contained particular applications; and the matter of another exception was, that setting forth these particular applications was impertinent.

The Court held that this was not impertinent.

1823. Nov. 20.

DEL PONTE V. DE TASTET.

Impertinence.-A master ought not to report a few words in a passage to be impertinent, because these words may be superfluous:

Neither is it impertinent, after stating that certain applications have been made to the defendant, to set forth particular letters in which the applications were contained.

The bill sought an account against the defendant. The plaintiff, in stating his case, charged that he sent to the defendant a certain letter, written in a foreign language, "which, according to an accurate translation thereof, into the English Language, was in the words and figures, or to the purport and effect following ;" and then set forth a translation of the letter.

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The defendant referred the words, cording to an accurate translation thereof," and" in the words and figures or," as impertinent.

The Master reported, that the words, "according to an accurate translation thereof" were not impertinent, and that the words," in the words and figures or" were impertinent.

The defendant having excepted to the former finding of the Master, the plaintiff excepted to the latter.

Mr. Phillimore for the plaintiff.
Mr. Koe for the defendant.

The Vice Chancellor allowed the plaintiff's exception, and disallowed that of the defendant; holding that there was no impertinence in the statement as contained in the bill.

The defendant appealed to the Lord Chancellor, who was pleased to confirm his Honour's judgment.

Though it is the usual course of the Court to determine on the written demurrer, before it enters upon the consideration of a case of demurrer assigned ore tenus; yet when the demurrer ore tenus is for want of parties, who have an interest in the question raised by the written demurrer, the Court will dispose of the demurrer ore tenus first.

An information and bill charged, that the trustees of certain funds, (the surplus of which, after some specific purposes had been satisfied, were to be paid over to the overseers of the poor for distribution,) had borrowed money improperly upon the security of these funds, and had improperly adopted the acts of preceding trustees, who had misapplied the funds; and it prayed, that, in taking the account against these trustees, they might not be allowed the sums which they had so borrowed improperly, or which had been unduly expended by the former trustees whose acts they had adopted, and that the balance which, upon an account so taken, should be found due from them, might be paid over to the overseers of the poor: Held,

That, to such an information, the former trustees, or their representatives, ought to be made parties;

That the creditors, from whose claims the funds were sought to be withdrawn, ought also to be parties;

That the overseers of the poor ought not to be parties.

An act of parliament was passed in the 32d year of his late Majesty, for inclosing certain lands within the township of Great Bolton, for widening, paving, lighting, watching, &c. the streets, lanes, and places

within the towns of Great Bolton and Little Bolton, and for other local improve ments and regulations. To effectuate these purposes, it named one set of commissioners and trustees for Great Bolton, and another set for Little Bolton; and provision was made for the due appointment of succeeding commissioners and trustees. One of the duties imposed upon the trustees was, after making certain allotments of the waste ground within the manor of Great Bolton, to demise the residue for terms of 5000 years, in lots not exceeding four acres each, for the best annual chief rents that could be gotten, and subject to the immediate payment of 10l. per acre. The money so raised, after defraying certain specified expenses, was to be paid over to the treasurer, for defraying the expenses of the local improvements and regulations which were contemplated; but if these funds were insufficient to meet the expenses of carrying the act into execution within the township of Great Bolton, the trustees were to ascertain the sums that ought to be raised by assessments on the inhabitants of that town, and to levy the same by rates, not exceeding in the whole 2s. 6d. in the pound in any one year. The expenses of lighting, paving, &c. Little Bolton, were to be defrayed by assessments. The two sets of trustees were empowered respectively to borrow, on mortgage at interest, or by way of annuity, for the purposes of the act, 10,000l. on account of Great Bolton, and 5000l. on account of Little Bolton. And if it should at any time happen, that the rents, arising from the allotments of waste lands directed to be sold or demised, should be more than sufficient to defray the expenses of executing the purposes of the act within Great Bolton, and there should be no money due on mortgage of the chief rents or assessments, and no annuity payable out of the same, in such case the overplus, remaining in the hands of the trustees, on the 29th of September in every year, was to be paid to the overseers of the poor of the said town, in order to be by them applied in the same manner as the assessments for the relief of the poor within the town of Great Bolton.

In the 57th year of the late King another act was passed, for the purpose of enabling the trustees to carry more effectually into

execution the purposes of the former act, so far as they related to Great Bolton.

The information and bill was filed at the relation of certain tenants and occupiers of premises in Great Bolton, on behalf of themselves and all other the inhabitants of that township, against the persons who were now the trustees for that township, under the two above-mentioned acts of parliament.

It charged, that the trustees, appointed under these acts, had annually received large sums of money arising from the allotments demised, and from other sources, and that the rents and other sums of money so received annually, had been at all times, and were more than sufficient, if duly applied, for carrying into effect all the purposes of the acts of parliament, so far as regarded Great Bolton, without the imposition of any rates or assessments;—that the preceding trustees had not duly applied, nor kept proper accounts of the monies which they had received;—that the defendants had in every respect adopted the acts of their predecessors, having received from them the balances remaining in their hands, and having, without investigation, passed and allowed their accounts, which were in many respects erroneous ;— that the alleged deficiency of the funds for the purposes of the acts, if any such deficiency existed, had its origin in the default of the defendants in not calling former trustees to account for their misconduct ;-that the defendants had themselves misapplied the funds, had not kept the requisite accounts, and had refused to allow the solicitor of the plaintiffs to inspect their books ;-that, alleging that the funds at their disposal were inadequate to the expense of carrying the purpose of the acts into execution with respect to the town of Great Bolton, they had imposed a rate of sixpence in the pound upon the tenants and occupiers of messuages within that township, and had levied the same by warrant of distress upon some of the plaintiffs;-that, when the defendants should have given the discovery required, it would appear, that the rate so made was wholly unnecessarry, and that the money to be raised thereby was not intended to be used for the purposes contemplated by the acts of parliameat;-that the defendants pretended that they had bor