part, the paying of which for those charges was the condition under which he enjoyed the residue.

Upon this point many cases have been cited, which have no application to the question. In all of them the act which constituted the wrong, or created the equity was complete; the cause of action or suit had accrued, and the party out of actual possession having his remedy open to him at any instant of the time, the possession was equally adverse, as against him and against the owner of the particular estate. Here, however, the case is altogether otherwise. The quantum of damages could not be ascertained till the tenant for life died; because, till then it was impossible to know what would be the residue unexpended of the lease; and the present proceeding could not have been instituted. The suit, if instituted in John Nevitt Bennett's life, could only be brought either from an apprehension that he was about to suffer the lease to expire, and then the Court, upon reasonable grounds being shewn by the threats or acts of the tenant for life, might have granted a receiver, in order to provide a fund for renewal, and might possibly have compelled him to renew; or, if he had already suffered the lease to expire, the application might have been granted on that default for a receiver; though in such a case it could only have been to provide a fund for compensation. But neither of those suits is this suit. The not having brought the former suit indeed, goes for nothing; because the non-renewal had taken place in 1784, and even the residue of fourteen years had expired luring the Plaintiff's infancy.

His not bringing that suit then would be nothing to the present purpose; both because he was an infant duing the whole period when he could have brought it, and because, though he had been of age, it was a proceeing pointed to a remedy of a wholly different kind.

After

1833.

BENNETT

v.

COLLEY.

1833.

BENNETT

v.

COLLEY.

After he became of age, and after the lease had expired, his suit would have been different from the present proceeding. It may further be observed, that such a suit would have been very different from any other of which we have experience in this Court. As there was no probability of renewal, the Plaintiff must have sued for a compensation, the amount of which could not be estimated, for damages which could not in any ordinary or known course of proceedings be assessed. A calculation of the value of the life on the estate must have been made, and according as that estimate made it expire sooner or later in the seven years, more or less must have been added to the fourteen; then the present value must have been taken of that sum deferred to the period of the calculated death; and after an amount should thus have been obtained, the party called upon to pay it, might by living far beyond the calculation, have shewn to demonstration that he had paid too much. It may safely be asserted, that calculations of this kind are never resorted to by courts of justice, unless when the events have been such as to prevent the possibility of the fact falsifying the estimate. But if the suitor should only for the present be allowed what he might be said to have a right to at the last, viz., the fourteen years, still the period at which he should receive it must be taken into the account and affect the calculation, and besides, he must be told to depart and come again for the residue of his remedy, when the tenant for life should really die.

Surely it is not upon the suggestion of such a preceeding as this having been open to the party, that ve are to hold him barred by laches of his present remedy, clearly defined and well known, and easily and constantly administered; a remedy, in truth, of a different knd from that which he is blamed for not seeking earlie

Decree affirmed.

1833.

ROLLS.

WRAY v. HUTCHINSON.

THE Plaintiff and Defendant had entered into a partnership for a term of twenty-one years as surgeons and apothecaries. The bill prayed a dissolution of the partnership upon the alleged ground of misconduct on the part of the Defendant in the partnership concerns. After the Defendant had answered the original bill, the Plaintiff amended his bill, introducing at great length, and with much minuteness of detail, additional matter of complaint against the Defendant. The Defendant put in an answer to the amended bill, in which he stated, at equal length, matter of justification against the new complaints, and concluded his answer, by stating that the new matter, alleged in the amended bill, referred to transactions which had taken place subsequently to the filing of the original bill, and he insisted upon the same advantage with respect to that objection, as if he had demurred or pleaded thereto. The Plaintiff replied to the answers, and evidence of great length was entered into on both sides, with respect to the whole matter of the original and amended bills.

After the bills and answers had been opened by Mr. W. C. L. Keene on the part of the Plaintiff, and by Mr.

Dec. 4.

L. C. 1834.

Nov. 17.21. A Plaintiff may by

amended bill

introduce new matter which occurred prior to filing the original bill, in order to fortify his case, but he duce new occurred subsequently to the filing of the original bill, without a

cannot intro

matter which

supplemental bill; and the

Defendant

having in his answer to the stated this objection to

amended bill

the new mat ter, and insisted upon the same ad

vantage as if

he had de

murred or

Bichner pleaded thereto, and the

Plaintiff not being able to support his case upon the evidence which referred to the allegations of the original bill, the bill was dismissed with costs.

Where a bill contains scandalous imputations on the character of the Defendant, the Defendant will not subject himself to the payment of costs by answering such imputations, although he objects at the same time to the introduction of the matters so answered on the ground of irregularity in point of pleading.

The Court will not decree a dissolution of partnership, unless it be shewn that the Defendant has substantially failed in the performance of his part of the partnership agreement; it is not the office of a court of equity to enter into the consideration of mere partnership squabbles.

1833.

WRAY

V.

HUTCHINSON.

Bichner on the part of the Defendant, and after the Plaintiff's case had been stated by Mr. Kindersley, evidence was proposed to be read in support of the allegations contained in the amended bill;

Mr. Bickersteth, on the part of the Defendant, objected that no evidence was admissible except as to matter which had occurred prior to filing the original bill. Matter, which had occurred subsequently to the filing of the original bill, should have been brought before the Court by a supplemental bill, and not by way of amendment to the original bill.

Mr. Kindersley admitted that matter which had occurred subsequently to the filing of the original bill, was properly the subject of a supplemental bill; but he contended that the Defendant had, by answering the amended bill, waived the irregularity, and could not now take the objection at the hearing: Redesdale's Treatise on Pleading. (a) In The Archbishop of York v. Stapleton (b), Lord Hardwicke after stating the rule that the Plaintiff could not properly amend his original bill by introducing new matter which had arisen since the original bill, but ought to have brought a supplemental bill, adds, "but then the Defendants should have taken advantage of this defect in form by a demurrer, and it is too late to make the objection after they have answered."

Mr. Bickersteth replied that in the case referred to the Defendants were held to have waived the objection because they merely answered without reserving to themselves the same right of taking the objection at the hearing as if they had pleaded or demurred. Here the Defendant

Defendant had expressly taken the objection in his answer, and had insisted upon the same benefit as if he had put in a plea or demurrer.

The MASTER of the ROLLS allowed the objection, and directed the Plaintiff's counsel to confine themselves to the evidence in support of the original bill. The Plaintiff had insisted upon his title to the relief prayed in respect of the statements in the original bill, and although he might have fortified his title to the relief prayed by introducing in the amended bill new matter which had taken place prior to filing the original bill, he could not have the benefit of new facts without a supplemental bill.

Upon this decision the Plaintiff's counsel admitted that they could not sustain the Plaintiff's title to the relief prayed, and that his bill must be dismissed; the only remaining question, therefore, was as to the costs of the suit.

For the Plaintiff it was insisted, that as the Defendant had unnecessarily and wantonly entered into an elaborate answer to all the allegations in the amended bill, thereby inducing the Plaintiff to go into expensive evidence under the belief that the Defendant was ready to meet the case upon the merits, whereas the Defendant now insisted upon the irregularity in point of form, it would be unjust that the Plaintiff should be visited with the whole costs of the suit.

On the other side it was argued that, as the Defendant had expressly taken his objection to the irregularity by his answer, and insisted upon the same advantage which he would have obtained by plea or demurrer, the Plaintiff had no pretence for saying that he was taken by

surprise;

1833.

WRAX

v.

HUTCHINSON.