1840.-Williams v. Newton. might have been equally right. And I do not think that I can judicially dissent from the certificate in this case, unless I see something in it that is clearly wrong, some plain violation of an acknowledged principle, or something which satisfies me that it cannot be right. On looking at the Southampton Railway Act, it strikes me that very good reasons may be assigned in support of the conclusion which the Barons of the Exchequer have come to. [His Honor here stated the reasons.] On these grounds I cannot say that I think that the certificate is so wrong that I am judicially bound to dissent from it and send a case to another court of law. On the contrary, my opinion is, that, having now obtained the deliberate opinions of the Barons of the Exchequer upon the question submitted to them, I have the law laid down before me with sufficient clearness to enable me to proceed with the motion; that is, having now ascertained the law, I shall be able to enter into the question of equity: and, according to the best opinion that I can form, I think that I shall not be doing that which will be either wise or useful, or, I may say, consistent with my view of juidcial duty, if I were to send this case to another court of law. 1840: 12th May. *WILLIAMS v. NEWTON. [*45] Plaintiff did not proceed, within the time limited by 11 Geo. 4, and 1 Will. 4, c. 36, rule 13, to take the bill pro confesso against a defendant who was in prison for want of answer. After that time had expired, the defendant filed his answer, and then moved, under the rule, to be discharged, without costs. Held that, as the defendant had not applied to be discharged until after he had disabled the plaintiff, by filing his answer, from proceeding to take the bill pro confesso, the case was not within the rule, and, therefore, the defendant could not be discharged without paying the costs of his contempt. THE defendant being in prison, and in contempt for not 1840.-Williams v. Newton. answering the bill in this cause, an attachment was lodged against him on the 3d of December, 1839: and, as he did not put in his answer within two calendar months from that day, the plaintiff might have proceeded, under 11 Geo. 4, and 1 Will. 4, c. 36, rule 13, to take the bill pro confesso. He did not, however, take any step for that purpose; and, consequently, at the end of six weeks after the expiration of the two months, the defendant was entitled, under the same rule, to be discharged out of custody without paying any of the costs of the contempt. Some time after the six weeks had expired, the defendant put in his answer; and Mr. Blunt, on his behalf, now moved that he might be discharged out of custody, without payment of costs. He said that, under the 13th rule, the defendant was entitled, before he put in his answer, to be discharged without costs; for the plaintiff, having omitted to proceed to take the bill pro confesso within the six weeks, had forfeited his right to costs. Mr. Koe appeared for the plaintiff; but THE VICE-CHANCELLOR, without hearing him, said that the defendant would have been entitled to be discharged [*46] without costs, if he had applied after the expiration *of the six weeks, and before he put in his answer; but as he had, by putting in his answer, disabled the plaintiff from proceeding to take the bill pro confesso, the case was not provided for by the act, and, therefore, the defendant could not be discharged without paying the costs of his contempt. 1840.-Teague v. Richards. 1840: 12th May. TEAGUE v. RICHARDS. Although an order for preliminary accounts and inquiries has been obtained in a suit for administering a testator's estate, yet the court will not, on that account, restrain a creditor from suing the executors at law The order, however, does not prevent the parties from having the cause heard before the Master has made his report. THIS was a suit for the administration and distribution of a testator's estate. Under the fifth general order of May, 1839, the plaintiff had obtained an order, dated the 31st of January, 1840, referring it to the Master to take an account of the testator's personal estate, and of his funeral and testamentary expenses, debts and legacies, and to advertise for creditors; and the master had advertised accordingly. In December, 1839, a creditor of the testator brought an action, for his debt, against the defendants, the executors, and was about to proceed to trial, notwithstanding he had been served with notice of the order of January, 1840. Whereupon, Mr. Lovat, for the executors, moved that all further proceedings in the action might be stayed, and that the creditor might be directed to go in and prove his debt before the Master under the order. Mr. Girdlestone appeared for the creditor. THE VICE-CHANCELLOR :-The interlocutory order which has been obtained in this cause, is not so extensive as the decree which *would have been made at the hearing; for [*47] it contains no direction for payment of the testator's debts, and I am not at liberty to give to it any force or value, except what is derived from the terms of the order itself. In my opinion, however, the cause may be heard and a decree 1840.-Hooper v. Brodrick. made notwithstanding the existence of the order, without waiting for the Master's report. Motion refused with costs. 1840: 27th May. HOOPER v. BRODRICK. The lessee of an inn covenanted to use and keep it open as an inn, during the term, and not to do any act whereby the licenses might become forfeited. The lessee having threatened to do certain acts inconsistent with the first branch of the covenant, the lessor obtained an ex parte injunction, restraining him from discontinuing to use and keep open the premises as an inn, and from doing any act whereby the licenses might become forfeited or be refused: But the injunction was afterwards dissolved, the court having no jurisdiction to restrain a person from discontinuing to use premises as an inn, which was the same, in effect, as ordering him to keep an inn; and no intention having been shown on the part of the defendant to violate the negative part of the covenant. THE defendant was the assignee of a lease of the Cross Keys Inn, in St. John's-street, Clerkenwell, which the plaintiff had granted, and which contained a covenant on the part of the lessee, his executors, administrators and assigns, to use and keep open the demised premises, during the term, as an inn, provided the proper licenses for that purpose could be obtained, and to use his best endeavors to procure the licenses to be renewed from time to time, and not to do, or cause or permit to be done, any act whereby they might become forfeited or be refused. The inn proved to be a losing concern, and the defendant [*48] having threatened to do certain acts inconsistent with the first branch of the covenant, the plaintiff filed the bill in this cause for, and obtained, ex parte, an injunction restraining the defendant from discontinuing, during the term, to use and keep open the premises as an inn, or to renew the licenses, from time to time, provided they could be obtained, and from doing or causing or permitting to be done, any act whereby the licenses might become forfeited or be refused. 1840.-Hooper v. Brodrick. Mr. G. Richards and Mr. Palmer, for the defendant, now moved to dissolve the injunction. They said that the court could not order the defendant to perform the positive part of the covenant, which was, to carry on the business of an innkeeper, and, therefore, the injunction could not be sustained. Blakemore v. The Glamorganshire Canal Navigation, (a) Earl of Ripon v. Hobart,(b) Kemble v. Kean,(c) Kimberley v. Jennings.(d) Mr. Knight Bruce and Mr. Bazalgette for the plaintiff. The covenant is not that the defendant or any other particular individual shall carry on the business of an innkeeper; but that the business shall be carried on on the demised premises. An injuuction may be granted to prevent the using of a house as a shop, where it would be a breach of covenant; and, if the covenant be that the house shall be used in no other manner than as an inn, the covenantee has a right to have the covenant performed. The defendant, in this case, may get rid of his liability under the covenant, by assigning the lease. Although the court cannot compel the tenant of a house to carry on any particular trade or business in it, it may *prevent him from [*49] using the house for any other purpose. In many cases, the injunction of this court must be mandatory in effect, although it is prohibitory in form. Morris v. Colman.(e) THE VICE-CHANCELLOR :-The court ought not to have restrained the defendant from discontinuing to use and keep open the demised premises as an inn, which is the same, in effect, as ordering him to carry on the business of an innkeeper; but it might have restrained him from doing, or causing, or permitting to be done any act which would have put it out of his power, or the power of any other person, to carry on that business on the premises.[1] It is not, however, shown that the defendant has threatened or intends to do, or to cause, or permit to be done (a) 1 Myl. & Keen, 154 (b) 3 Myl. & Keen, 169. (c) Ante, Vol. VI. p. 333. (d) Ibid. 340. [1] See Dietrichsen v. Cabburn, 2 Phil. 52. |