1847. WILLES v. LEVETT. wards an action of covenant was commenced, at her request, in the name of her trustee, against the plaintiff for recovering the balance due from the plaintiff on the mortgage, as well as an action of ejectment. To the action of covenant, the plaintiff pleaded the general issue; and the action was tried in the Spring Assizes, 1847, when a verdict was obtained for the amount of principal and interest due to the defendant, but which was less than the sum agreed to be paid to Grant for the purchase of the estate. The plaintiff then filed the present bill against Miss Levett, her trustee and some puisne incumbrancers, impeaching the validity of the sale on various grounds, into which it is unnecessary to enter, as none of the facts alleged by the bill, with respect to this part of the case, were admitted by the answer. The prayer of the bill was, that it might be declared, that the sale of the Belringham estate was fraudulent and void, or was null and void as against the plaintiff, and ought to be set aside, and that the same might be set aside accordingly, and that the plaintiff might be let in to redeem, or that the Belringham estate might be resold under the direction of the Court, and that, out of the produce of such sale, after defraying the expenses thereof, the defendants, the mortgagees respectively, might be paid what should be ascertained to be due to them on foot of their said several securities, the plaintiff thereby offering and submitting, in the event of such re-sale not producing sufficient to answer and satisfy what should be ascertained to be due to the defendants, the mortgagees, to pay and satisfy the difference necessary for that purpose; and that the defendants Ann Levett and Thomas Grant, and their solicitors and agents, might be restrained from proceeding with the sale, and from taking any steps to enforce or complete the same, and from attempting to gain possession of the Belringham estate for the defendant Grant; and that Miss Levett and her trustee, and their respective solicitors and agents, might be restrained from further proceeding in the action. A common injunction had been obtained in these terms for want of answering; and, in support of it, the plaintiff's counsel now cited Perry v. Barker (a), Schoole v. Sall (b). The VICE-CHANCELLOR, without calling on the counsel This is a simple case, and, as I understand it, is thus: -There is a mortagee with a power of sale, and a considerable sum remains due upon the mortgage, subject to what I am about to state. The mortgagee has exercised her power of sale, to the extent of entering into a contract to sell a portion of the property comprised in the security. The purchase has not yet been completed, a deposit having only been paid, which is now in the hands of the auctioneer. Under these circumstances, the mortgagor files a bill against the mortgagee and the purchaser, impeaching the validity of the sale, on grounds which seem plausible, and seeking to set it aside, the mortgagee and the purchaser insisting that the sale is good. In that state of things (the purchase-money being greater than the debt), it is contended that the Court ought to restrain the mortgagee from suing on the covenant for the money due upon the mortgage. I am disposed to wish that I could accede to the application; but were I to do so, I should, I fear, be making, and not administering, the law of the Court. That law, I think, does not enable me to interfere, and the injunction must be dissolved. Ordered accordingly. 1847. WILLES v. LEVETT. (a) 8 Ves. 527; 13 Id. 198. (b) 1 Sch. & Lef. 176. 1847. June 24th. More than twelve days after bill filed, a defendant filed a plead SKEY v. GARLIKE. THE bill was filed on March 25, 1847. On June 3, 1847, a defendant named Thomas Garlike filed a pleading, intitled "The Demurrer and answer of Thomas Garlike, a ing, which was defendant," &c., and purporting to be a demurrer to the whole bill, as well as an answer to the whole bill. a demurrer, and also an answer to the whole bill:Held, that, notwithstanding the 37th Order of Aug. 1841, the answer overruled the demurrer, and that it was not necessary to move to take the pleading off the file as irregular. The demurrer now came on to be heard. Mr. Swanston and Mr. Southgate, for the plaintiff, objected that the demurrer was overruled by the answer. Mr. E. G. White, in support of the demurrer.-The demurrer must be argued on the merits. If the plaintiff had any objection on the ground of irregularity, he should have made it the subject of an application to take the pleading off the file. But it is not irregular, being not a demurrer only, but a demurrer and answer. Nor can the plaintiff object to the demurrer and answer being each to the whole bill, for the 37th Order of August 26th, 1841, provides that a demurrer shall not be overruled because the answer may extend to some part of the same matter as may be covered by the demurrer. The VICE-CHANCELLOR was of opinion, that, if such proceeding could be permitted, the 16th Order of May, 1845, Art. 10 and 13, would be of no effect; and said, the only question was, whether it was necessary for the plaintiff to move to take the pleading off the file. His Honor thought not, and overruled the demurrer. CLIVE v. BEAUMONT. THIS was a suit for the specific performance of an agreement for the sale, to the defendant, of a leasehold house in Grafton-street, Berkeley-square, belonging to the plaintiff. The agreement relied upon was to be collected from the following negotiations and correspondence : The plaintiff, who was the executor of Edward Bolton Clive, the original lessee, in the month of August, 1845, gave directions to Messrs. Snell, house-agents, to sell the house, with the furniture and fixtures. On the 20th of October, 1845, the defendant inquired of the agents as to the terms; and they thereupon informed him that the terms asked were £250 a year rent, and £1000 for the furniture and fixtures. The defendant, on the 20th of October, viewed and inspected the premises; and on the 27th of October, 1845, he sent to Messrs. Snell the following letter, dated the 27th of October, 1845 : "Gentlemen,—I am willing to take the remainder of Mr. Clive's term of No. 18, Grafton-street, at the same rent, and will purchase the fixtures and furniture, to the amount of £100, by valuation, in the usual way, the furniture to be selected by myself. give you pos quarter day:" session at half - Held, that the addition did not intro duce a new term, but that was uncondi the acceptance tional. It is not sufficient for a party, who intends to rely upon a waiver of title, to allege upon his pleading the facts constituting the waiver; he must shew how he means to use the facts, by alleging that the title has been waived thereby. Semble, that where the purchaser, after transmission to him of the ori ginal lease, pre To this letter, Messrs. Snell returned the following an- pares a draft swer, dated the 30th of October, 1845: assignment, and other matters, but does not require production of the landlord's title, he will be considered to have waived its production. Semble, that a decree for specific performance should not declare that the agreement ought to be performed, if a good title can be made. VOL. I. D D D. G. S. 1847. CLIVE v. BEAUMONT. "Sir,-We are instructed by our principal, the Rev. Archer Clive, to accept the terms proposed by you, in your letter of the 27th ult., for his house, No. 18, Grafton-street. We hope to give you possession by the half-quarter day. "We are, Sir, your obedient servants, "W. & E. SNELL." On the 9th of December, 1845, Messrs. Snell transmitted to the defendant, who was himself a solicitor, the lease of the premises, which was dated the 13th of November, 1830, and was made between one William Michael Tollner of the one part, and Edward Bolton Clive of the other part, whereby Mr. Tollner demised unto the late Mr. Clive, his executors, administrators, and assigns, the premises in question, for twenty-one years, from the 25th of December, 1831, determinable at the end of the first seven or fourteen years of the term, at the option of Mr. Clive, his executors, administrators, or assigns, at the clear rent of £250 per annum. After receiving the lease, the defendant wrote to Messrs. Snell the following letter, dated the 17th of December, 1845: Gentlemen, I have been confined to my bed for the last week, or should have written to you to complete the arrangement as to Grafton-street. Please to let me know the name of Mr. Clive's solicitor, and I will forward him the draft assignment. I hope to be able to take possession a day or two after Christmas. "I am, &c., "HENRY BEAUMONT." On the 27th of December, Messrs. Whitmore & Co. (the plaintiff's solicitors) received, from the defendant, the draft of an assignment from the plaintiff to the defendant, accom |