Page:The English Reports v1 1900.pdf/744

In pursuance of this decree, the Master, by his report, dated the 30th of January 1701, certified, that there was due from the appellants to the respondents for the arrears of rent, £3500. And, that on the 26th of September 1701, they assigned the lease to one Pollard; and, on the 27th, gave notice thereof to the respondents.

But the appellants, instead of satisfying the arrear so reported due, thought proper to appeal from the decree; and, on their behalf it was contended (W. Dobyns), that the bill being in the nature of an action of debt for rent, the respondents ought to have taken their remedy at law, and were not proper for any relief in a Court of Equity: or, if relievable in equity, yet there was no reason, that the appellants should be decreed to pay the whole rent, or any more than their proportion of it; since they were only entitled to about a seventh part of the demised premises, and as to the residue, were only in the nature of trustees for others; and though trustees, as having the legal estate, might be liable at law; yet, in Courts of Equity, they were to be considered only as nominal persons, and the decree ought not to be against them, but against the cestui que trusts, who were the persons really interested. That if the suit was proper in equity, yet Houghton, who was the respondent's lessee, and transacted the whole agreement with them, and was still concerned in interest for a full third part, ought to have answered, and been brought on to the hearing, before any decree was made in the cause. That if a decree could be made singly against the appellants, yet, they who would have equity, ought to do equity; and therefore, the appellants ought to have had allowances for Lambs-conduit-waters, and for the great deficiency of water conveyed by Aldersea's pipe; and which, by the proofs in the cause, appeared [518] to be £300 per ann. loss to the appellants, and the other persons interested.

To all this it was answered (T. Powys, W. Cowper), on the other side, that the respondents at first brought their action at law, but were stopped therein by the appellants injunction, and so were forced into equity by them; and, as the case was circumstanced, the respondents could not now recover at law. That Houghton absconded long before the hearing; and on the same day the lease was made to him, assigned it to the appellants, who received the profits, and had divided the undertaking into 900 shares, in the way of stock-jobbing, and by so doing, had got great sums of money of many people; and yes they would now avoid paying the rent decreed, because all those people who had been concerned therein, were not brought to hearing, which, in fact, could not be done, and would render it impossible for the respondents ever to recover. That the respondents could neither in law nor equity, compel any of the other parties to be contributors to the arrear; because the appellants only were tenants to the respondents, and stood in Houghton's place as his assignees; and because those other parties claimed under the appellants only, who might take whatever course they should think fit to make them contribute, if they were liable so to do. That the respondents demised to Houghton, the several springs and waters in the lease mentioned, with the benefit of the pipes then laying by Aldersea, but never contracted for any certain quantity of water; and, if the appellants met with any interruption, they had a remedy against those who unlawfully hindered their enjoyment of what was granted them. But this pretence was the foundation of the bill filed by the appellants; and if there was any just ground for the complaint, they might have been properly relieved upon that bill, had they thought fit to have brought it on to hearing. Upon the whole, it was plain, that the respondents had proceeded regularly in obtaining the decree, and that the appellants had used every possible delay to avoid payment of the rent; and therefore it was hoped, that the decree would be affirmed with costs.

Accordingly, after hearing counsel on this appeal, it was ordered and adjudged, that the same should be dismissed; and that the orders, decree, and proceedings therein complained of, should be affirmed. (Jour. vol. 17. p. 275.)