zance.

The plaintiff and his sureties were served with notice of the motion, but they did not appear upon it.

Mr. Collins, Q. C., and Mr. Berkeley, for the motion.

A miscarriage in the Master's office has rendered the present application necessary. The recognizance which the Court was pleased to order for the defendants' security was prepared by the plaintiff's solicitor, and was approved by the Master, without notice to any of the persons for whose security it was ordered; and it now turns out that it is made to depend upon a condition at variance with the order which it recites, and the plain intention of the parties-rendering the recognizance a dead letter, unless the Court will be pleased to grant the present application. There can be no doubt, that notwithstanding the dismission of the bill, the Court has jurisdiction to make such an order on the plaintiff as is now sought for: Costello v. Hunt (a); Popham v. Baldwin (b); Lord Arlington v. Merricke (c); Spyve v. Topham (d); Vin. Abridgm. tit. Obligation, Pl. 42; Watts v. Pitt (e); Sheppard Touchst. 87.

MASTER OF THE ROLLS.

After stating at length the above-mentioned facts of this case, his Honor proceeded to pronounce judgment upon it to the following effect :

The first question which arises for decision on this motion is, whether after the plaintiff's bill has been dismissed at the hearing, I have jurisdiction to make any order upon him, touching the recognizance which he and his sureties entered into in the cause pursuant to an order of the Court? I have no doubt that the Court retains jurisdiction to make such an order after the bill has been dismissed; but I think the more regular course for the defendants should have been, to have obtained an order or direction upon the hearing of the cause, by which the necessity of a further application would have been avoided. In the cases of Costello v. Hunt and Popham v. Baldwin, cited by Mr. Collins, the Court of Exchequer held, that where the plaintiff had obtained an order continuing to the hearing of the cause an injunction restraining proceedings in ejectment, on the terms, amongst others, of his giving security by recognizance for payment of mesne rates, the Court retained jurisdiction, after the bill was dismissed, to make an order upon him to pay the sum found to be due for mesne rates, so as to enable the defendant to proceed at law against the sureties, in case of the plaintiff's default in not paying such sum pursuant to the order.

(a) 2 Ir. Eq. Rep. 357, n.

(e) 2 Saund. 411.

(b) 2 Ir. Eq. Rep. 356.
(d) 3 East, 115.

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(e) Lutw. 441.

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In almost every cause there are incidental and collateral matters, which could not possibly be disposed of or determined by the mere dismission of the bill. In Wright v. Mitchell (a), the creditors of an intestate filed a bill to set aside a lease made by him, and after the tenants had paid their rents into Court, the bill was dismissed for want of prosecution. The assignees of the lease then moved that the money which had been lodged in Court should be paid out to them, and Lord Eldon, after full consideration made the order. So in Pitt v. Bonner (b), which was a suit for specific performance instituted by a purchaser against a vendor, a receiver was appointed, and afterwards the bill was dismissed with costs at the hearing. After dismission of the bill, the Court ordered that the receiver should account and pay over his balance to the defendant.* In bankruptcy, in like manner, the jurisdiction continues for many purposes after the commission has been superseded: Ex parte Fector (c); Ex parte Cowan (d). So, the authority of the Lord Chancellor in lunacy is not determined as to all matters by the death of the lunatic: Ex parte McDougal (e).

All those cases, I think, shew, that notwithstanding the dismission of the bill, the Court may, in a case like the present, make an order on the plaintiff touching his recognizance; and the remaining question is, whether I ought to make such an order upon him as that which has been applied for.

No one reading the order pronounced by this Court on the 25th of June 1840, could have the least doubt as to its meaning, nor that the recognizance it required was one that should secure the ascertained sum of £827-which was declared to be "the sum stated by the answer "of the defendants, filed the 26th of May 1840, to be due for rent up "to and including the 1st of May last," and not the unascertained amount of profits accruing from the day of the demise in the ejectment. The order in fact distinguished between the two: as to the sum of £827 stated to be due for rent up to and for the 1st of May, it required the plaintiff to give security by recognizance with sureties; and as to the profits accruing pending the cause after the said 1st of May, that he should pay half-yearly within two months from every 1st of May and 1st of November the annual sum of £352—the first payment to be made within two months after the 1st of November. In the recognizance, the order of the Court is correctly recited; but the condition, instead of following the

(e) 12 Ves. 384, and see In re Earl of Kingston, 2 Ir. Eq. R. 169. As to the general question respecting the jurisdiction, see the note to Hutchins v. Hutchins, ante, p. 221, et seq. See also the case of Duffield v. Elwes, 2 Beav. 268.

See Belagh v. Concannon, Ll. & Go. temp. Plunk. 360.

66

terms of that order, is for payment of mesne rates. It is clear that the
injunction was to be continued upon the terms of security being given
by recognizance for the sum of £827 on account of rent up to and for
the 1st of May 1840-that the defendants were entitled to have such
security as one of the terms upon which the injunction should be con-
tinued against them: and, it is equally clear, that, although the instrument
intended as such security (by an oversight in the Master's office, for
which it is difficult to account, and which, I hope, will not occur again) is
informal, the parties to it obviously meant to comply with the order of
the Court, and to fulfil the terms upon which the injunction was to be,
and in fact was, continued. Under such circumstances I could not construe
the latter part of the condition of the recognizance without having regard
to the former part of it, in which the order of the Court is recited; and I
may observe that the words mesne rates do not necessarily mean the
profits accruing from the day of the demise in the ejectment. What we
term mesne rates are in England usually called mesne profits; and in
Adams on Ejectment, I find the following statement at page 380, "It
"has been said that a lessor in ejectment may, if he please, waive
"the trespass and recover the mesne profits in an action for use and
occupation; but this election must be limited to the profits accruing
'antecedently to the time of the demise in the ejectment." In Pult-
eney v. Warren (a), Lord Eldon seems to take that distinction. There-
fore, it is at least doubtful, that even upon the strictest principles of
construction I should be bound to read the words mesne rates as meaning
exclusively the profits accruing from the day of the demise in the eject-
ment; and if I should so interpret them in the present case, I think I
should be giving them a meaning which the parties to the recognizance
did not intend them to bear. As to the understanding of one of the
parties respecting his liability-and that party one of the sureties,-there
can be no doubt, for we have his own sworn statement upon the subject.
He was examined in the cause as one of the plaintiff's witnesses, and in
answer to a cross-interrogatory, his deposition is "if the plaintiff fails
"in this suit I shall be liable to pay the defendants Mary, Jane, and
"Anne Purcell, the sum of about £823, under and by virtue of the re-
"cognizance in my answer to a former interrogatory,"-being the recog-
nizance in question. In truth, there could not, under the circumstances,
be any doubt as to the meaning or intention of any of the parties; nor,
that each understood himself to be liable in case the plaintiffs 's suit should
fail, to pay the sum of £827, on account of rent stated to be due up to
and for the 1st of May 1840, from the plaintiffs to the defendants; and,
therefore, even if the words used in the condition could not, according to
their strict meaning, be construed (as I think they may) as referring

(a) 6 Ves. 92.

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to the amount of rent due to the defendants up to and for the 1st of May 1840-which amount must now be taken to be, according to the uncontradicted statement in the defendant's answer, the sum of £827-I think this Court not only should have jurisdiction, but that it should be bound by the principles which govern it, either to reform and amend the condition according to the manifest intention of the parties, or to give the words used an interpretation consistent with such intention, without regarding how much it might vary from their literal meaning or usual acceptation. In several cases it has been held that where money was lent on credit given by two persons, who passed a joint bond for it, the instrument was to be considered as joint and several, according to what appeared to have been the intention of the parties: Simpson v. Vaughan (a); Bishop v. Church (b); Thorpe v. Jackson (c); Wilkinson v. Henderson (d). In another case, Ex parte Symonds (e), the Lord Chancellor says, "Whereever there are circumstances appearing on the face of the bond to shew "that it was intended to be joint and several, though in point of form it be a joint bond, there is no difference between a Court of Law and Equity, "the former would consider it a joint and several bond as readily as the "latter." So in the case of Henkle v. The Royal Exchange Assurance Company (f), Lord Hardwicke said "No doubt, but this Court has juris"diction to relieve in respect of a plain mistake in contracts in writing, as "well as against fraud in contracts: so that if reduced into writing contrary "to the intent of the parties, on proper proof, that could be rectified." Again, in Beaumont v. Bramley (g), Lord Eldon says "There is no doubt that "if an instrument affects by its recital to carry into execution a certain "agreement, and goes beyond that agreement, the Court will rectify it." The decisions in the cases Lord Arlington v. Merricke (h), Watts v. Pitt (i), and Spyve v. Topham (k) are all of them authorities in support of the same principle, that this Court will reform or construe instruments so as to render them consistent with the manifest intention of the parties. In Simpson v. Vaughan (1), Lord Hardwicke mentions a case before Lord Macclesfield, where a promissory note for £20 concluded with the words which I promise never to pay,' and it was held to be a good note for £20. In White v. White (m), the condition of a bond which by mistake was in the disjunctive, was rectified so as to enable a person to make proof on the bond.

In the present case, there can be no doubt as to what the condition of

(a) 2 Atk. 31.

(c) 2 Y. & Col. 558.

(e) 1 Cox, 200.

(g) 1 Turn & Russ. 52.

(i) Lutw. 441.

(/) 2 Atk. 31.

(b) 2 Ves. sen. 100, 371.
(d) 1 My. & Kee. 582.

(1 Ves. sen. 318.

(h) 2 Saund. 414.

(k) 3 East, 115.

(m) 2 Mont. & Ayr. 541.

the recognizance ought to have been, nor as to the intention of the parties respecting it. An injunction is continued upon the plaintiff's application, on the terms, amongst others, of his giving security with sureties for a certain sum alleged to be due for rent up to and for a day then past; the recognizance is prepared-according to an alleged practice in the Master's Office which I cannot too strongly condemn, and which I shall take care to have amended-without notice to any of the persons who were most interested in seeing it correctly framed; and by a blunder, the condition is for payment of mesne rates, instead of the sum of £827 stated in the order, and intended by the parties. It would, I think, be against reason and conscience that the parties, after obtaining the advantage which was the consideration for their becoming responsible, should get rid, by a slip of this kind, of the responsibility which they intended to assume; and as unreasonable would it be if, in such a case as the present, the persons who were clearly entitled to be secured should lose their security by what must be considered as a blunder of the Court. In Pulteney v. Warren (a), Lord Eldon says, "If there be a principle on which "Courts of Equity ought to act without scruple, it is this, to relieve "parties against injustice occasioned by its own acts or oversights, at the "instance of the party against whom relief is sought." Agreeing fully with that observation, I shall grant the present application.

ORDER.-The Court being of opinion, under the circumstances of
this case, that the parties to the said recognizance intended to
secure payment of the sum of £827, pursuant to the order bear-
ing date the 25th day of June 1840, recited in the recogni-
zance, in case this Court should direct the said sum to be paid;
and the Court being further of opinion that the said sum is, in
the condition of the said recognizance, described as the sum
which might be ordered to be paid for mesne rates of the lands
in the pleadings in this cause mentioned, doth order that the
said plaintiff John O'Leary do, within one month from the date
of this order, pay to the said defendants Mary Purcell, Jane
Purcell and Anne Purcell the said sum of £827, as and for the
mesne rates of the lands in the pleadings mentioned; and it is
further ordered, that in case the said sum of £827 shall not be
paid by the said plaintiff to the said defendants within the time
assigned, the said defendants be at liberty to sue upon the
said recognizance, as they may be advised, without further
order.

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(a) 6 Ves. 92.