VICE CHANCELLOR'S COURT, DEC. 5.
MUNDAY V. JOLLIFFE.
The Solicitor General said the bill was filed by the plaintiff against Colonel Hilton Jolliffe, to enforce the specific performance of an agreement for a lease, which the defendant was alleged to have entered into for one of the farms on the Petersfield estates, at Buricourt, in Hampshire, in the year 1826. The plaintiff finding the state of the farm to be such that it would be necessary to make a considerable outlay in drainage and other improvements, wrote to Mr. Hector, who was at that time Colonel Jolliffe's steward, on the subject of granting him a lease. A day was accordingly appointed, when Colonel Jolliffe, Mr. Hector, and the plaintiff met, when Colonel Jolliffe promised to grant the plaintiff a lease for 14 years, determinable at the end of seven by either party on giving six months' notice, on condition that the plaintiff should enter into a covenant to drain the land, repair certain buildings, and convert an arable field into pasture. The rent agreed upon was 120l. a year. It was Colonel Jolliffe's habit on visiting his estates annually to write down in the form of instructions to his steward what was determined upon with reference to each farm, and the following instructions in the hand-writing of Col. Jolliffe were found to have been given to Mr. Hector on the subject of the plaintiff's farm:—
"Munday, junior, to have a lease for 7 or 14 years, to be found timber for repairs, and to put down tile and stone drains in all the fields necessary at his own expense, to stand at the present rent."
In conformity with these instructions Mr. Hector prepared a draught of a lease and a fair copy, but which, from the circumstance of Mr. Hector's being about to discontinue practice or the pressure of other matters, had never been executed. These documents had been made a part of the plaintiff's case since the filing of the original bill by amendment. The plaintiff had complied with the conditions of the agreement by laying out a sum exceeding 200l. in draining and repairs, and had converted the arable land into pasture. After an occupation of seven years an application was made to the plaintiff by Colonel Jolliffe to give up possession of one field, consisting of about five acres, and the negotiation was proceeding amicably between the plaintiff and Mr. Vernon, then the steward of Colonel Jolliffe, when in 1835 a notice was suddenly served upon him to quit the farm, and an ejectment had since been brought, which had deprived him of possession. These statements were confirmed both by Mr. Hector and Mr. Vernon, who had each made an affidavit in support of the plaintiff's case. The principal ground of opposition was, that the plaintiff was only from the first a tenant from year to year, and that no agreement for a lease was ever contemplated by Colonel Jolliffe in the conversation he had with the plaintiff, but it was clear he never would have gone on spending such large sums of money in improvements if there was not a distinct understanding the plaintiff was to have a lease.
The Vice Chancellor observed that the allegation of the agreement in the bill, the memorandum in writing by Colonel Jolliffe, and the draught of the lease, all differed from each other, and formed so vague an agreement, that it appeared to him impossible for the Court to execute.
Mr. D. Wakefield and Mr. Duckworth, on the same side, said that the plaintiff had been turned out of his farm simply from having refused to give his vote to Colonel Jolliffe at the last election for the borough of Petersfield. Colonel Jolliffe admitted in his answer he had no cause of dissatisfaction with the plaintiff's conduct, but that he was displeased at his not giving him his vote at the election, and therefore he gave him notice to quit. The learned counsel then attacked the statements made by Colonel Jolliffe in his answer, many of which they contended were not consistent with truth.
Mr. K. Bruce, Mr. Jacob, and Mr. Stuart appeared for Colonel Jolliffe, and strongly deprecated the introduction of any political circumstances connected with the borough of Petersfield, as they had nothing whatever to do with the case. They were no part of the allegations in the bill, but had been introduced into the instructions only of his learned friends to give a colouring to the case.
His Honour frequently during the argument expressed his regret that such topics had been alluded to by either side, as they had no sort of connection with the question he had to decide.
Mr. K. Bruce then referred to the manner in which Colonel Jolliffe's answer had been impeached. He observed that from the nature of the statements and matters of account, which were given in some detail, it was necessary for Colonel Jolliffe to depend on the information furnished him by his agents, but every one of the statements the answer contained Colonel Jolliffe believed to be true when they were made, and he now stood there, as the counsel of Colonel Jolliffe, to declare that he firmly adhered to the truth of every particular, even the most minute, that was found in the answer. It was the belief of Colonel Jolliffe that no agreement for a lease was ever intended by either party. He said that he had but a slight recollection of its ever being in contemplation to grant a lease, but he was sure that no binding agreement was ever made. After the notice had been served on Mr. Munday to quit the farm, a rough draught of a lease was discovered among the papers of Mr. Hector, and this induced him to have a diligent search made among his own papers, the result of which was to bring to light the memorandum of instructions alluded to. He also declared that he had but a faint remembrance of the interview with Mr. Munday in Mr. Hector's presence, and he could not recollect anything that passed. The learned counsel then alluded to the cross-examination of Mr. Hector, which would tend to throw some light on the present suit. Mr. Hector admitted he was not on friendly terms with Colonel Jolliffe, because, after all his endeavours to uphold his interest in the borough, the colonel had instituted proceedings against him to dispute the charges he had made for his services. Though he denied having advised the suit, he admitted that Mr. Munday's political principles were the same as his own, and that he would vote for him on a future occasion. The learned counsel submitted the effect of the evidence was to show there never had been any agreement, and that if the Court should think there had, it had been so contradictorily set out on the pleadings that the Court could not give effect to it.
The Vice Chancellor said he should certainly dispose of this case without any reference to the political illusions that had been made in the course of the argument, as they had nothing whatever to do with the case before the Court, and ought never to have been introduced. He did not think that the observations made against Mr. Hector with reference to a portion of the evidence which should not properly have been admitted were at all justifiable, because if he had been cross-examined on the subject he might have been able to show he was not justly accused of the error which had been imputed to him. And with respect to Colonel Jolliffe, it came out that he did not reside at Petersfield, but only visited it occasionally; he could not therefore state the facts it was necessary for him to go into without depending in a great degree on the information of others, but his honour was of opinion there was nothing whatever in the evidence to impeach the veracity of his answer. The whole question was whether the plaintiff had proved the agreement alleged in his bill. His honour then compared the statements of what the agreement was to be as they existed in the different documents and the evidence of Mr. Hector with the allegation of the bill, and came to the conclusion that the one set up was concocted from a knowledge of a draught of the lease, and not from any information Mr. Hector had given to the plaintiff on the subject. He did not believe there had ever been anything more than a talk about a lease, and that no distinct agreement was ever concluded. The motion must therefore be dismissed with costs.