7 Paige Ch. 350 | New York Court of Chancery | 1838
It is hardly possible to conceive that any solicitor of this court should have been so ignorant of its practice, as not to know that the complainant could proceed, upon the personal service of a subpoena, without the necessity of serving notices of the subsequent proceedings in the cause upon the defendant, who had neglected to appear. I can therefore only account for the delay of the defendant’s solicitor to give notice of his retainer, and to enter the defendant’s apearance, upon the supposition that ho believed the bill was in fact what he calls it in his affidavit, a bill of discovery. If he supposed it to be amere bill of discovery to obtain the admission of facts to be used as a defence in the ejectment suit at law, and wished to delay the answer and discovery as long as possible, I can th.en account for his supposing that no advantage could be
The sworn answer which the defendant proposes to put in would probably have been a good defence to this suit if it had been interposed in time; according to the more modern decisions in relation to the power of this court to relieve against the consequences of a breach of a condition subsequent. In the case of Northcote v. Duke, (Ambl. Rep. 513,) Lord Northington said, in reference to this question, “ I take the rule to be that in all cases where a person has broken a condition, and forfeited a penalty, equity will relieve if there can be a compensation. I think the court may relieve where the tenant cuts down timber.” And he was certainly sustained in that opinion by the language of the court in some of the previous cases. But the decisions in the more recent English cases limit the active interference of the courts of equity, in behalf of the tenant, to those cases only where the act or omission by which the forfeiture was incurred was the result of accident or mistake, and where compensation can be made to the adverse party; or where the penalty or forfeiture, stipulated for in the lease, is in the nature of a mere security for the payment of money, &c. (Hill v. Barclay, 16 Ves. 402. 18 Id. 56, S. C. Reynolds v. Pilt, 19 Id. 134. White v. Warner, 2 Mer. 459. Bracebridge v. Buckley, 2 Price’s Rep. 200.)
These parties, however, stand in a very different situation at this time from that in which they were placed at the
The only object of the defendant in wishing to open the decree in this case is to enable him to enforce the forfeiture at law, if he succeeds in his defence to this suit; for the costs which he would have to pay to the adverse party, if he was let in to defend, including the costs of opposing this application, would be equal to the whole costs which he is now bound to pay under the decree. It would therefore be a useless expense to both parties, to permit a defence to be made in the present suit upon the terms of the defendant’s agreeing to waive the forfeiture and to pay such costs. Better justice will be done to both parties by denying this application altogether, without any costs to the complainant '; and by leaving the defendant to recover a compensation, for the few trees which have been cut, by an action at law upon the covenant in the lease. The application to open the de-. cree is therefore denied.