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I • 








• I 



London : 

SroTTiswuoDes and Shaw, 














1849, 1850. — IS & U VICTORIA. 





Lord CoTTENHAM, Lord Chancdlor. 

Lord Langdale, Master of ike Rolls. 

Sir Lancelot Shadwell, Vice-chancellor of England. 

Sir James Lewis EjaGHT Bbuce, 1 

l- Vice-chancellors. 
Sir James Wigram, J 

Sir John Jebvis, Attorney-General. 

Sir John Bomillt, Solicitor- Genercd. 

A 3 


Ii^ Easter tenn» 1850^ the Bight Honourable Lord 
Cottenham res^ned the Great Seal, which was there- 
upon put into commission — the Conmiissioners being, the 
Bight Honourable Lord Langdaley Master of the Bolls, 
the Bight Honourable Sir Lancelot Shadwell, Tice- 
Chancellor of Enghxndy and the Honourable Sir Robert 
Monsey Rolfe, one of the Barons of the Court of 

Li Trinity vacation, 1850, the Bight Honourable 
Sir Thomas fFilde, Lord Chief Justice of the Court 
of Common Pleas, was appointed Lord High Chan- 
cellor, and was created a peer under the title of Baron 

At the same time Sir John Jervis, Her Majesty's 
Attorney-General, was appointed Lord Chief Justice 
of the Court of Conmion Pleas. 

Sir John Momilly, Her Majesty's Solicitor-General, 
was appointed Attorney-General, and Alexander James 
Edward Cockbum, Esq., one of Her Majesty's Counsel, 
was appointed Solicitor-General. 

The Bight Honourable Sir Lancelot Shadwell, Vice- 
Chancellor of England, died in July 1850. 

In Trinity vacation, 1850, the Vice-chancellor Sir 
James Wtgram resigned his office. 



Vmnjf Jbifty Kn^iil, one of die Boioiis of die Court 

of Exdheqaer, vik appointed a Yioe-CliBiicdIar, aad 

WW Aatttf afkervsrds created a Peer mider the dde 

OK uaiUQ cjeJULWOui 

In JJirrwAnr ISoO, JmipJk Hmmtpkrify Esq^ ooe 
of Her ^bgestf 5 ConucI, vu ^ipointed one of the 
m OnSnsnTy ia the pboe of JakM 

1m aUry neadoD, 1&51, Sir JMa BamUfyy Kiright, 
Her llageiiCTs AttocBer-Genenl, wiss sppocsted M&Sflr 
of theBoIkfr in thejifaee oHjOci LemgdaLej reagneiL 

At the 9me tfmr, Gemye Jaaus Twrmer. Egq^ one 
of Her ybjescj^i Ccaasd, wm appocnted a Yice-Chozk- 
cdkr m the pbee of Sir •finKf IFSpob 

*« SoEdtor-Geixxal, vas sppomted Her Ma^eKr 
Attonev-Geaenl, soi inZSks Pag^ VTiodj Eo^ 
of Her MsftjeRT** Co«BaeI» was sppoisted SoGeisar- 





A Ti Page 

Adams^ Bowlej v. 476 

Allfrey V. AUfrey 292. 420. 620 

Andre W89 Douglas r. 310 

Askham r. Banker 499 

Attorney-General v. Cham- 
bers 159 

; V. Donn- 

ington Hospital 551 

*~^ — V. London^ 

Corporation of 8. 171. 217 

' ' — V. Pilgrim 57 

V. Eees 50 

V. Tufnell 35 

— V. Wygges- 

ton Hospital 113 

Awdry, Clooes v. 604 


Baddeley, Bainbrigge v. 152 
Bailey v. Birkenhead, Lan- 


oishireand Cheshire Junc- 
tion Railway Company 433 
Bainbrigge v. Baddeley 152 

Baker v. Gibson 101 

Barker, Askham r. 499 

Barton, Ex parte 361 

Benbow r. Davies 421 

Benecke, Bridson v. 1 

Birkenhead, Lancashire and 
Cheshire Junction Rail- 
way Company, Bailey v. 433 

•^— ^ -, Dumvile v. 444 

; 9 Graham v. 460 

Blenkinsopp r. Blenkinsopp 568 
Boughton, Knight v. 312 

-7— , Walpole V. 622 

Bridson v. Benecke l 

Brown v. Oakshott 252 

Brunswick, Duke of, v. Cam- 
bridge, Duke of 279 
Buchanan v. Greenway 355 
Budge V. Budge 335 
Butler V. Gardener 526 
Byng V. Clark 536. 608 


Ccmbridgo« Duke of« Bnms< 

wick, Dake of, r. 
C-azpcnter* Dobson r. 
Cawthome, In re 
Cladwi^ ParbiQLiy r. 

nl r. 

r. Howell 

Railwrnv Company 
ken r. 
Eden« Wilson r, 
Edwards r. Edwards 

, Hyde r. 

Eldridge, In re 
Ellis r. Maxwell 
Elxnslie, In re 
Emmott r. Emmott 
Everett, In re 

Claris* Byng c 536. 

Clen£nen, Hit^jicock r. 
QoMfi^ r. Awdrv 
Cobbctt, Oldfieid r. 
Cocks n. Pnriav 
Coben r. Wilkinson 125. 





534 I 
91 ' 
451 Folov r. Smith 

16CL 253 



IlarieS;. Benbow n. 

Dicker r. Hugo 

Dimes Grand JnncDon Cj 

C-ompany r. 
IKuMt LfCVDdon and Pon^- 

nontb Railway Company, 

In re 
Dobaon r. Cjownter 
Domninrttm HoerataL At- 

Douglas r. Andrews 

Diorle r. Dovk 

D^dale n. Dogdalo 

Dsnmle r. BiAenboad L^n- 
caoldre and Cbcsfaxnc Juno 
txm Railway Conqiany 







n. TThiiBnc ^49 

and We?! India IXxks» 
miQ Bnmmcnam «Tixnccion 


: Gandoll, Rodick r. 325 

■ iTardonoT, Butler r, 525 

Gibson. Baker r. 101 

Gmoc, Wchb r, 489 

Grftham r. Birkenbea3« Lan- 
cashire au a Cbeslurr .1 unc- 
tion Railwav Comnanv 460 
Grand •lunetion Canal Com- 
pany r, l^^imes 63 
Gwax-cs r. Greaves 422 
Green. Harder r, 1S2 
Greenwar, Buv''}]anan r, 355 
GTe<*nw*x>i r^ Pcnnv 403 
GrciTvirr r^ Marvchurch 2T,x 3i*> 
Gnm^vvv;. liarrison i, 192 
GrAMiie, Par^-ms r. 1m» 


HfticK Iti re 
H&ll r. "Slal; 
Harder r. Ittwoi 
■ — «;. Hawkshaw 



Haigrave v. Haigmve 
Harrison v. Grimwood 
Hawkshaw, Hardej v. 
Hennet v, Luard 
Hitchcock V. Clendinen 
Hodgson V, Earl Powis 
Horlock V, Wilson 
Howell, Chambers v. 
Hugo, Dicker v. 
Humble v. Humble 
Hyde V. Edwards 


392. 529 





160. 253 

Jervoise, In re 
Joddrell v. Joddrell 


Kay V. Winder 
Ker, In re 
Kihunster r. Nod 
King, Skipper v, 
Knight V. Boughton 
Koecker, Mitchell v. 





I^n^ Salomons v. 339. 

lApnmaudaye v, Teissier 

I^^shman^ Londonderry and 
Bnniskillen Bailway Com- 
pany ». 

Lomax v. Lomax 

London, Corporation of, At- 
torney-General V. 8. 171. 

liondonderry and Enniskil- 
len Kailway Company r. 

Lorimer, In re 

Loacombe v. Wintringham 








Lowe V. Williams 
Luard, Hennet v. 



M^CuUock r. Haggar 546 
Marychurch, Gr^oryi;. 275.. 898 

Maxwell, EUis o. 104 

Minn v. Stant 190 

Mitchell V. Koecker 44 

, Pioard v. 486 

Morrell v. Pearson 284 

Murrow v. Wilson 497 


Noel, Kilminster v, 246 

Norwich Yam Company^ In 
re 366 


Oakshott; Brown v. 
Oldfield V. Cobbett 


Parbury r. Chadwick 
Parsons v, Groome 
Pearson, Morrell v. 
Penley v. Penley 
Penny, Greenwood v. 
Petty V. Petty 
Phelps, St. John r. 
Picard v. Mitchell 
Pilgrim, Attorney-General r. 
Powis, Earl, Hodgson t;. 392. 
Pugh t;. Vaughan 
Pmday, Cocks v. 




Kanelagfa o. Bandagh 

Banken v. East and West 
India Docksy and Binning 
ham Junction Bailway 

Bead «• Strangeways 

Beesy Attorney-General v. 

— — , In re 

Bickford v. Yomg 

Bobertson v. Skelton 260. 

Bodick o. Gandell 

Boss V. Boss 

Bowley o. Adams 

Bodge T. Winnall 





St John o. Phelps 
Salomons v. Laing 339. 

Soott, In re 
-^— r. Wheeler 
Shallcross o. Weaver 
— — V. Wright 505. 
Sheard, Thomber o. 
Skelton, Bobertson v. 260. 
Skipper v. King 
Smitn, Foley v. 

f In re 
South Devon Bailway Com- 
pany, Tagg V. 
Stant, Minn o. 
Strangeways, Bead v. 
Sturge V. Starge 
Sudlow, In re 
SuflBcld, Lord, Whalley v. 



T^g V* Sooth Devon Bail- 
way Company 

Taylor r. Taylor 220. 271 

Teissier, Laprimaodaye r. 206 
Thomber r. Sheard 589 

Tofhell, Attorney-General r. 35 

Vaoghan, Pogh r. 
Vines, In re 





Walpole r. Booghton 

Walsh, In re 

Weaver, Shallcross r. 

Webb V. Grace 

Whalley r. Suffield, Lord 

Wheeler, Scott r. 

Whitling, Eariy r. 

Wilkinson, Cohen r. 

Willmms, In re 

, Lowe r. 

Wilson V. Eden 

, Horlock r. 

, Morrow v. 

Winder, Kay r. 

Windsor, Staines and Sooth 
Western Bailway Act, 
In re 

Winnall, Bodge r. 

Wintringhnm, Loscombc v. 

Wright, Shallcross v. 505. 

Wyggeston Hospital, Attor- 
ney General r. 







Yoong, Bickford v. 


• •• 



Ist March, 1850. 

Regulations to be observed in setting down causes, 
&C., pursuant to the Greneral Order of 23rd February, 

The Solicitor applying to have a cause set down for 
hearing, is to endorse on the Record and Writ Clerk's 
certificate his name or firm, and the party for whom he 
acts, and also the date. 

The Solidtor applying to have a cause for further 
directions, and also pleas, demurrers, exceptions, and 
objections for want of parties, set down for hearing, is 
to subscribe, on such petition, his name or firm, and 
the party for whom he acts, and also the date. 

Every order drawn up on such petition will bear 
the last-mentioned date. 

Every petition to set down a plea or demurrer must 
state the time of filing such plea or demurrer, and 
whether the demurrer is to the whole or only part of 

Every petition to set down objections for want of 

parties must have annexed to it the Record and Writ 

Clerk's certificate of the filing of the answer, and every 

petition to set down exceptions must have annexed to 

it the certificate of the deposit having been paid, as 

heretofore required by the Lord Chancellor's Secretary. 

E. D. ColviUe. 
Dated 1st March, 1850. 

Vol. XII. a 


J 850. 


Monday^ the 3rd day ofjuney 1850. 

The Right Honourable Chables Christopher 
Lord Cottenham, Lord High Chancellor of 
Great Britain, by and with the advice and 
assistance of the Right Honourable Henry 
Lord Langdale, Master of the Rolls, the 
Right Honourable Sir Lancelot Shadwell, 
Vice-Chancellor of England, the Right Honour- 
able the Vice-Chancellor Sir James Lewis 
Knight Bruce, and the Right Honourable 
the Vice-Chancellor Sir James Wigram, doth 
hereby, in pursuance of an Act of Parliament 
passed in the fourth year of the Reign of 
Her present Majesty, intituled " An Act for 
facilitating the Administration of Justice in 
the Court of Chancery," and of an Act passed 
in the fifth year of the reign of Her present 
Majesty, intituled " An Act to amend an Act 
of the Fourth Year of the Reign of Her present 
Majesty, intituled 'An Act for facilitating 
the Administration of Justice in the Court of 
Chancery,' " and of an Act passed in the eighth 
and ninth years of the reign of Her present 
Majesty, intituled " An Act for amending cer- 
tain Acts of the Fourth and Fifth Years of 


{a) Rqr. Lib. 1849. B. fol. 788. 


the Reign of Her Majesty, for facilitating the '850. 
Administration of Justice in the Court of 
Chancery, and for providing for the Discharge 
of the Duties of the Subpoena Office after the 
Death, Resignation, or Removal of the present 
Patentee of that Office," and in pursuance 
and execution of all other powers enabling 
him in that behalf, order and direct, That 
all and every the Rules, Orders, and Directions 
herein-after set forth, shall henceforth be, and 
for all purposes be deemed and taken to be 
General Orders and Rules of the High Court 
of Ohancery, viz. : — 

L Every decree or order of reference is to be brought Decree to be 
iito the Master's Office by the party having the car- S^ilffi"^ 
riage thereof^ within ten days after the same shall have Office within 
been passed and entered, and in default thereof, any ^' 

other party to the cause or matter is to be at liberty to 
Ung in the samc^ and such party shall have the car- 
nige of the proceedings under such decree or order, 
lukktt the Master idiaD otherwise iqiecially direct. 

n. If, upon the warrant taken out for considering Master may 
tie decree or order of reference, or at any time during [^be7epre-^* 

tie reference, it shall appear to the Master, with re- sented by one 

solicitor • 
speet to the whole or any pertion of the proceedings, 

that the interests of the parties can be classified, he is 

to be at liberty to require the persons constituting each 

^ tny dasB to be represented by the same solicitor; 

>nd if the parties constituting snch class cannot agree and may no- 

i<|xm the solicitor to represent them, the Master is to ^[^^ parties 

^ at liberty to nominate such solicitor for the purpose ^^'^^ J 

of the proceedinin before him ; and if any of the parties pa^y declin- 

, . ing to be so 

constituting such class shall decline to authorize the so- represented to 

a 2 Ucitor pay «tra 



1850. licitor so nonunated to act for him, and shall insist npon 
being represented bj a different solidtor, snch party 
shall personally pay the costs of his own solicitor of 
and relating to the proceedings before the Master with 
respect to which such nomination shall haTC been made, 
and all such farther costs as shaQ be occasioned to any 
of the parties by his being represented by a different 
solicitor from the solicitor so to be nominated. 

m. The arrangement and regulation of the com^e 
nbject to the ^ proceedings under each reference are to be wh<dly 
cooml of the subject to the control and direction of the blaster, and 

the Master is to proceed with the reference made to 
him, as speedily as the nature thereof and the 
of the office will allow. 


to be eon- 

IV. The duration of warrants to proceed upon any 
reference befcHie the Master, is not to be limited to tn 
hour, or any other period of time ; and the proceedings 
upon any warrant are, as far as possible, to be con- 
tinued consecutively firom hour to hour, and from day 
to day, until the same shall be ccMupleted, but not so as 
to cause unreasonable delay in other causes or matters 
dependfaig before the Master; and the Master shall, 
therefore, be at liberty to adjourn the further hearing 
of any matter or thing before him to such future day 
as he shall think fit ; and on every such adjournment^ 
the parties shall be obliged to attend without a further 
warrant, unless the Master shall otherwise direct. 

5rc to hare 

Y. The Master shall give {Nrioiity, as far as may 
be, to exceptions for insufficiency, impertinence, and 
scandal, and to matters and applications under 3 & 
4 Jr. 4. c. 94. «. 13. and the Orders made in pursu- 
ance thereof, and to any other matters or apfdications 
requiring immediate de^wtcfa. 

VL The 


YL The Master's power to proceed ex parte, in case 1 850. 
of the non-attendance of any party on any warranty ^'"'^7^^*^ 

^ ^ . ^ On atljourn- 

shall extend to the case of his non-attendance upon any ments Master 
adjournment of any warrant. ^^^ P'^^^ 

Vn. The Master's power to award costs in case of And award 
the non-attendance of any party upon any warrant, is 
to extend to the case of his non-attendance upon any 
adjournment of any warrant to a fixed time. 

VIII. In all cases, when a proceeding has been un- Master to re- 
duly delayed by reason of the neglect of any party or Jgi^y ;„ pro- 
his solicitor, the Master shall, in the first report which needing. ^ 

he shall make on the subject-matter in respect of which 
such proceeding has been unduly delayed, state specially 
to the Court the circumstances of such delay, in order 
that the Court may, if it shall so think fit, in addition 
to and notwithstanding any costs which the Master 
may have certified to be paid in the course of the pro- 
ceedings before him, make such further Order in respect 
thereof as justice shall require. 

IX. If it shall appear to the Master, that any state of Master may, 
facts, affidavit, or other proceeding before him, contains ^>^|\^"5 ""y 

' '^ . . application, 

statements which are impertinent or of unnecessary disallow im- 
length, he shaU be at Uberty (without any application pixTtltc-'^ 
made to him for the purpose) to disallow such matter, ments. 
distinguishing by his initials in the margin the parts so 
disallowed; and he shall cause a memorandum of his 
liaving disallowed such impertinent matter to be in- 
dorsed on the office copies of the draft of his report, 
as to the particular inquiry on which such state of 
facts, affidavit, or other proceeding shall have been used 
before him ; and in the taxation of costs, no costs shall Qq^^ thereof, 
be allowed to the parties, by or on whose behalf such 
state of facts, affidavit or other proceeding was brought 

a 3 into 


ISSO. into the Master's Office, for (v in respect of tlie matter 
^^^^^^^ so disalloved, and the Taxing Mant^r shall allow to the 
other parties to the soit or matter, all soch costs as 
have been incurred by or occarioned to them, by reaacm 
of the matter so disallowed; and such costs shall be 
paid by the party by or on whose behalf sach state of 
&ct5, affidavit or other proceeding was ao biought in. 

Feesof Coun- X. In all proceedings before the Master, where he is 
Master and attended by Counsel, the allowances, on the taxation of 
^. 9?™]^ costs, in respect of the fees to such Counsel, are to be 

regulated upon the same princi|de as if the pioceedings 

were before the Court 

Costsof CouD- XL The costs of procuring the attendance of Counsel 
1 !S ^ i7 before the Master are to be allowed in the taxation of 

lowed m all 

cases before costs as between party and party, in all cases in which 
his certificated ^^ Master shall certify such attendance to be proper, 

and in no other case. 

Masters may XIL In case of the absence, from illness or otherwise, 
:^" in*^ °f -y Mast- to whom any cause or matter is referred, 
of illness, &c any other Master may, with his concurrence, act in the 

place of the Master so for the time being absent ; but 
any order or other proceeding to be made or had by or 
before such Master so acting, is to be entered as made 
or had, by or before him, for or in the place of the 
Master to whom the reference is made. 

to XIII. The blasters are, forthwith and frcHn time to 

I fMort to tbe ^^^ ^^ meet and consider such additional Orders or Be- 

: L. C any gulations, as may appear to them or the majority of them 

adffltioiiai ^ 

Onlanca]- calculated to expedite and facilitate the satisfactory 

22^L!^f*' transaction of the bu^ess of the suitors in thdr offices ; 

BOB. and to report such additional Orders or Regulations to 

I the Lford Chancellor, to the end, that, if the same should 



be approved by him, proper steps may be taken for 1850. 
such additional Orders or Segulations being adopted ^"^"V"^ 
and duly made general Rules and Orders of the Court 

Xiy. The Registrars are, forthwith and from time to Registrars to 
time, to meet and consider such Orders or Regulations ^ ® ^ 
as may appear to them, or the majority of them, calculated 
to expedite and facilitate the satisfactory transaction of 
the business of the suitors in their office, and to report 
such Orders or Regulations to the Lord Chancellor, to 
the end, that if the same be approved by him, proper 
steps may be taken for such Orders or Regulations 
being adopted and duly made general Rules and Orders 
of the Court. 

XY. That this Order be drawn up and entered by 
the R^strar of the said Court 


Langdale, M.R 
Lakoelot Shadwell, v. C. £. 
J. L. BENIGHT Bbuce, v. C. 
Jahes Wigeam, v. C. 

u 4 


1850. into the Master's Office, for or in respect of the matter 
'^^''^^^^^ so disallowed, and the Taxing Master shall allow to the 
other parties to the suit or matter, all such costs as 
have been incurred by or occasioned to them, by reason 
of the matter so disallowed; and such costs shall be 
paid by the party by or on whose behalf such state of 
facts, affidavit or other proceeding was so brought in. 

Feesof Coun- X. In all proceedings before the Master, where he is 
Master and attended by Counsel, the allowances, on the taxation of 

the Court costs, in respect of the fees to such Counsel, are to be 

regulated upon the same principle as if the proceedings 

were before the Court 

Costs of Coun- XL The costs of procuring the attendance of Counsel 
lowe^ \n dl ^^^^^^ ^^^ Master are to be allowed in the taxation of 
cases before costs as between party and party, in all cases in which 
hi^certifi^te? ^^^ Master shall certify such attendance to be proper, 

and in no other case. 

Masters may XIL In case of the absence, fi:om illness or otherwise, 
other ^iTcase ^^ ^^^ Master to whom any cause or matter is referred, 
of illness, &c. any other Master may, with his concurrence, act in the 

place of the Master so for the time being absent ; but 
any order or other proceeding to be made or had by or 
before such Master so acting, is to be entered as made 
or had, by or before him, for or in the place of the 
Master to whom the reference is made. 

Masters to XIII. The Masters are, forthwith and from time to 

report to^the *"^®> *^ ^'^^^ ^^^ consider such additional Orders or Re- 
L. C. any gulations, as may appear to them or the majority of them 
Orders cal- Calculated to expedite and facilitate the satisfactory 

culated to ex- transaction of the business of the suitors in their offices ; 

pedite bu8i« 

ness. and to report such additional Orders or Regulations to 

the Lord Chancellor, to the end, that, if the sao^e should 



be approved by him, proper steps may be taken for 1850. 
such additional Orders or Segulations being adopted ^"^*y"^ 
and duly made general Bales and Orders of the Court 

XIY. The Begistrars are, forthwith and from time to Registrars to 
time, to meet and consider such Orders or Begulations ^ ® ^ 
08 may appear to them, or the majority of them, calculated 
to expedite and facilitate the satisfactory transaction of 
the business of the suitors in their office, and to report 
fiach Orders or Begulations to the Lord Chancellor, to 
the end, that if the same be approved by him, proper 
iteps may be taken for such Orders or Begulations 
being adopted and duly made general Bules and Orders 
of the Court, 

XY. That this Order be drawn up and entered by 
the Begistrar of the said Court 


Langdale, M.B. 
Lakoelot Shadwell, v. C. £. 
J. L. Knight Bruce, V. C. 
James Wigrah, V. C. 

u 4 




6th Jtfn^ 1850. 
Eyert ckim filed under the Orders of Court of 22iid 
Afnly 1850, is to be set down for hearing with the 
Be^strwy whidi wiU be done (without fee) ms soon as 
the writ of summons has been served on the Defendant, 
<ff (if more than one) <m all the Defendants, upcm piro- 
dnction to the Begistzar by the Plaintiff or his Solicitor 
of a oerdficate firom the Ckik of Beooids and WzitB of 

Every chum so set down will be heard in rotadcm in 
die r eq pecd Ye Courts of the Muter of the Bolb and 
Yioe-Chancdlors on sudi days as they shall reqiectiTdy 

An motions ariosg out of dabns filed are to be made 
OB die general seal and motion day& 

Note. — Jlu Master rf Ae Boixs has af^winted 
Saturday in each week durii^ the dttii^ of the Court, 
far hearing all claims in his Court. 

The Yic£-Chaxcellok ^Exglaxd has a{^ninted 
Friday in each we^ durii^ the attiz^ of the Court, 
after the short causes appointed for the day, to hear all 
daims in his Court. 

The Yice-Cha^^cbllor Kxight Bruce has ap- 
pointed Saturday in each wedk dnriiig the sittings of 
the Court, after the ^MXt caiKCS appointed fiar d^ day^ 
to hear all daiuB in hb Court. 

F. IL Daxrisy Registrar. 

Tkandi^y 6th of .Aaie, 1850. 




2nd Naoember 1850. 

Thb Right Honourable Thomas Lord Truro, 
Lord High Chancellor of Great Britain, by and 
with the advice and assistance of the Right 
Honourable Henry Lord Langdale, Master of 
the Rolls, and the Right Honourable the Vice- 
Chancellor Sir James Lewis Knight Bruce, 
and the Honourable the Vice-Chancellor Sir 
Robert Monsey Rolfe, doth hereby, in pur- 
suance of an Act of Pariiament passed in the 
Session of Parliament holden in the thirteenth 
and fourteenth years of the reign of Her pre- 
sent Majesty, intituled "An Act to diminish J,^^.'* ^'^'• 
the Delay and Expense of Proceedings in the 
High Court of Chancery in England," and in 
pursuance and execution of all other powers 
enabling him in that behalf, order and di- 
rect, that all and every the Rules, Orders, 
and Directions hereinafter set forth, shall 
henceforth be, and for all purposes be deemed 
and taken to be, General Rules and Orders 
OP the High Court of Chancery; viz 


L The several Orders comprised in the General Repeal of ccr- 
Order of the 3rd of Aprils 1828, which are respectively ^ fa^a&y 
numbered 7, 9, and 10; and the Order comprised in the arcinconsist- 
General Order of the 2l8t of December , 1833, which is present. ' ^ 




1850. numbered 19; and the Order comprised in the General 
Order of the 9th Mat/y 1839, which is numbered 6 ; and 
the several Orders or parts of Orders comprised in the 
General Order of the 8th day of Maj/, 1845, which are 
respectively numbered as the second Article of the 14th 
of the said Order ; and the 6th, 7th, 8th, 9th, 20th, 
21st, 22nd, 23rd, 24th, 25th, 26th, 27th, 28th, 29t.h, 
30th, and 31st Articles of the 16th of the said Order; 
and the several Orders comprised in the said last-men- 
tioned General Order, which are respectively numbered 
17, 19, 38, 39, 40, 41, and 42; and all other Orders 
and parts of Orders, so far as such other Orders and 
parts of Orders are inoonsistent with these Orders, 
but not further or otherwise, are hereby abrogated and 

II. All former Orders and parts of Orders not spe- 
cified in Order I, so far as the same are now in force, 
and consistent with these Orders, or applicable to the 
same, or the subject-matter thereof, are to remain in 
full force and effect. 

Orders to 
come into 

fVhen these Orders are to come into Operation. 

IIL These Orders are, as to all suits or matters now 
pending or hereafter to be commenced, to take effect 
on this 2nd day of November 1850. 




Exceptions to pleading s^ ^r^., for scandal j impertinence^ 

or insufficiency, 

IV. The times of vacation arc not to be reckoned in 
the computation of the time allowed for filing or setting 
down exceptions for scandal, impertinence, or insufifi- 
denoy, in cases where the time is not limited by notice 
flnvra pursuant to the 13th of these Orders. 

V. These 


v. Hese Orders do not apply to any reference for 1850. 

scandal, impertinence, or insufficiency pending before '^^'^^^ 

any of the Masters at the time when these Orders afiect pending 

come into operation ; but as to all such references the ^^^^^^*^^' 
existing Rules and Orders of the Court are to remain 
in force. 

YL No order is to be made for leave to file excep- Noexcepdons 

^ , nunc pro tunc, 

tions nunc pro tunc. '^ 

• VII. A Defendant, whose answer is not excepted to Election 

or set down for hearini? on former exceptions, alleging ^^^^ Plain- 

, . . 1 . A>, T tiff proceed- 

that the Flamtin is prosecuting him in this Court and ing at law 

also at law for the same matter, may, upon the expira- ^^ equity. 

tion of eight days after his answer, or further answer, 

is filed, obtain as of course, on motion or petition, the 

usual order for the Plaintiff to make his election in 

which Court he will proceed. 

VIIL After the filing of a Defendant's answer, the Time to ex- 
Phdntiff has six weeks within which he may file ex* ^ciency!^ 
eeptions thereto for insufficiency. 

If he does not file exceptions within six weeks, 
such answer on the expiration of the six weeks is 
to be deemed sufficient. 

IX. A Defendant desiring to prevent exceptions to Time for sub- 

his answer for insufficiency being set down for hearing, '"**^'^J? *® 

' ^ ° ^ ^' exceptions. 

has for that purpose only eight days after the filing of 
such exceptions within which he may submit to the 

X. K a Defendant not being in contempt submits to Time for an- 
exceptions to his answer for insufficiency before the submbnion. 
Plaintiff has set them down for hearing, he is allowed 



three weeks from the date of the submiselon within 
which he is to put in his further answer to the bilL 

for insuffi- 
ciency not to 
l>c set down 
till eight days, 
except in 
election or 

XL The Plaintiff haying filed exceptions for insuf- 
ficiency to a Defendant's answer is not to set them 
down for hearing before the expiration of eight days 
from the filing of such exceptions, unless in a case 
of election he is required by notice in writing from 
such Defendant to set them down in four days pur- 
suant to the 13 th of these Orders, or in a case where 
the common injunction may be obtiuned or retained on 
the allowance of such exceptions. 

Setting down 
exceptions for 
scandal, or 

To be ad- 

In election 


within finnr 

XII. Exceptions to answers for insufficiency, or to 
any pleading or other matter depending before the 
Court for scandal or impertinence, or for scandal and 
impertinence, are to be set down for hearing by the Re- 
gistrar at the request of the party filing the same, upon 
the production of a certificate of the Clerk of Records 
and Writs of the filing of such exceptions ; or (in the 
case of exceptions to an answer for insufficiency) of the 
filing of a further answer, and the same are to be 
advanced and put in the paper for hearing on an early 
day, and the party setting down any such exceptions 
shall, on the day on which the same shall be so set 
down, serve a notice thereof on the party whose plead- 
ing or other matter is excepted to, otherwise the said 
exceptions shall be deemed not set down. 

XIIL A Defendant, whose answer is excepted to, 
allying that the Plaintiff is prosecuting him in this 
Court and also at law for the same matter, may, by 
notice in writing, require the Plaintiff to set down the 
exceptions within four days from the service of the 


And if the Plaintiff does not set down such 



exceptions within such four days, such De- 1850. 
fendont is entitled, as of course, on motion or ^^V^*^ 
petition, to obtain the usual order for the 
PIfuntifF to make hb election in which Court he 
will proceed. 

XIV. The Plaintiff having filed exceptions for in- Excrotion for 
snffidencj to a Defendant's answer is to set them down to be set 

for hearinir after the expiration of eight days, but within down after 
. T .. , ^1. A 1 . eight and 

lonrteen days from the nlmg of such exceptions. within four- 

If he does not, the answer on the expiration of *®®" ^*y^' 
such fourteen days is to be deemed sufficient. 

XY. The Plaintiff, having shewn exceptions to a Exceptions 
Defendant's answer for insufficiency as cause against ^*^u^*^" 
dissolving an injunction, is to set down such exceptions be set down 
for hearing at the latest on the day next aft;er shewing |^ ^„ 
such exceptions as cause. 

If he does not the injunction is dissolved. 

XYI. After the filing of exceptions to a Defendant's Time for set- 
answer for insufficiency, and any further answer put in, g^fept^^" 
the Pluntiff has fourteen days from the filing of such after further 
further answer within which he may set down the old ^ 

If the old exceptions be not set down within 
fourteen days aft;er such further answer put in, the 
answer is on the expiration of such fourteen days 
to be deemed sufficient. 

XVil. AAer exceptions to an answer for insuf- Time to 
fidency are set down for hearincr, if a Defendant not ^"*^^*;» ^^^'® 

^ ^ o' exceptions for 

being in contempt submits to answer, or the Court holds insufBciency 
the answer to be insufficient, the Court may in such ^^'^^ '^'g 
cases appoint the time within which such Defendant is allowed or 

A X • f r -lL submitted to. ' 

to put in his further answer. 




If such Defendant does not obtain time &om the 
Court, or does not answer within the time which 
the Court allows, the Plaintiff may sue out process 
of contempt against such Defendant. 

When answer 
to be deemed 

Oil setting 
down old ex- 
ceptions, the 
parts to be 

Answer to be 
deemed suffi- 
cient from I 
time of over- 
ruling of ex- 
ceptions, and 
from time of 

XVm. The answer of a Defendant is to be deemed 
sufficient -^ 

1. If no exception for insufficiency be filed thereto 
within six weeks after the filing of such answer. 

2. If exceptions being filed the Plaintiff does not 
set them down for hearing within fourteen days after 
the filing thereof. 

3. If within fourteen days after the filing of a 
ftirther answer, the Phdntiff does not set down the old 

XIX. If, after a Defendant's second or third answer 
is filed, the Playitiff sets down the old exceptions for 
insufficiency, then the particular exception or exceptions 
to which he requires a further answer is or are to be 
stated in the notice of setting down such exceptions. 

XX. If, upon the hearing of exceptions, the answer 
be held sufficient, it shall be deemed to be so from the 
date of the order made on the hearing ; and if the De- 
fendant submit to answer without an order from the 
Court, the answer shall be deemed insufficient from the 
date of the submission. 

Where an- 
swer found 
Court may 
limit time for 
further an- 

when third 
answer found 

XXI. The Court holding a first or second answer to 
be insufficient, may appoint the time within which a 
Defendant who is not in contempt, is to file a further 

XXIL Upon a third answer being held to be in- 
sufficient, the Court may order the Defendant to be 



examined upon interrogatories to the points held to be 1850. 
insufficient, and to stand committed until he shall have ^^V^^ 
perfectly answered the interrogatories; and the De* 
fendant is to pay such costs as the Court shall think 
fit to award. 

XXm. No pleading or other matter depending objections as 
before the Court is to be set down for hearing for ^^ f<?"<*^. 

^ ^ and imperti- 

scandal or impertinence, unless exceptions are taken in nence to 
writing and signed by Counsel, describing the particular exc«>tion/ 
passages which are alleged to be scandalous or im- 

XXrV. Where any person or party having filed ex- Time for set* 
oeptions to any pleading or other matter depending ^"8^^^° ^^^ 
before the Court for scandal, and any person or party scandal and 
having filed such exceptions for impertinence, does not '"'^^ nencc 
set the same down for hearing within six days after the 
filing thereof, such exceptions are to be considered as 
abandoned, and the person or party by whom such ex- 
ceptions were filed is to pay to the opposite party such 
costs as may have been incurred by such party in re- 
spect of such exceptions. 

XXV. Upon the production of an order, made Expunging 
upon its being held that any pleading or other matter fmpcrtincn^ 
depending before the Court is scandalous or imper- 
tinent, the officer having the custody or charge of such 
pleading or other matter is to expunge from such plead- 
ing or other matter such parts thereof as the Court has 
held to be scandalous or impertinent, and thereupon the 
person or .party requiring such scandalous or impertinent 
matter to be expunged, is to pay to the officer expung- 
ing the same, the same fee as on the like occasion has 
heretofore been paid. 




Applications XXVI. Applications to discharge, reverse, or alter 
to discharge ^ny order made on motion or petition of course by the 
course, where Lord Chancellor, the Master of the Bolls, or one of 

the Vice-Chancellors, are to be made to the Judge to 
whom special applications in the cause or matter in 
which such order is made, ought to be made according 
to the practice of the Court, and the General Rules and 
Orders applicable thereto. 

to be made. 

and orders 
thereon under 
the 13 & H 
Vict. c. 35. 
1. 19. to be 
attached to 
the several 

XXVII. Every petition or motion paper for a re- 
ference under the 19th section of the said Act is to be 
marked at or near the top or upper part thereof in the 
same manner as a bill is now marked with the name of 
the Lord Chancellor and one of the Vice-Chancellors, 
or with the name of the Master of the Rolls ; and every 
order for any such reference is to be marked in the 
same manner as the said petition or motion paper, and 
the matter in which such order is made is thenceforth 
to be considered as attached to the Court of the Judge 
whose name shall be so marked upon such order, in 
like manner and for the like purpose as causes are at- 
tached to such Court, but shall be subject to be trans- 
ferred from such Court in the same manner as causes 
are so transferred; and the provisions of the Order 
comprised in the General Order of the 5 th of May 
1837, which is numbered 15, and of the General Order 
of the 5th of August 1842, shall apply to every matter 
so attached. 



XXVIIL The fees to be received and taken by the 
Registrars and their Clerks, and by the Clerks of Re- 
cords and Writs, and their Clerks respectively, for 
filing a special case and all proceedings thereupon, are 



to be the same as are now received and taken by them 1850. 
respectively for filing a bill and for proceedings in suits 
instituted by bill^ and the fees to be received and taken 
by the Registrars and their Clerks for setting down 
exceptions for scandal^ impertinence, and insufficiency^ 
and for orders made thereon, are to be the same as are 
now received and taken for setting down exceptions 
and for orders made thereon. 

(Signed) Thuro, C. 

Langdale, M.R 

J. L. Knight Bruce, V. C. 

R. M. RoLFE, V. C. 

2d November y 1850. 
WiiEREAS the Right Honourable Sir Lancelot Shad- 
well^ Knight, Vice- Chancellor ot England^ hath departed 
thb life: And whereas the Right Honourable Sir 
James Wigram, Knight, late one of the Vice-Chan- 
cellors of the Court of Chancery hath resigned his office : 
And whereas the Honourable Sir Robert Munsey Rolfe, 
Knight, hath been appointed by her Majesty a Vice- 
ChanceUor of the said Court of Chancery: And 
whereas it is necessary to make provision for the hear- 
ing of the causes and matters which at the times of such 
death and resignation respectively were attached to the 
respective Courts of the said late Vice-Chancellors, 
and to make other regulations necessary in consequence 
of such death and resignation: Now I do hereby 


L That the Order numbered I. of the General Order, 
dated the 11th November, 1841, be abrogated and dis- 

VOL.XU. * IL That 


1850. II. That m all informations or bills to be marked 

under the 1st Order of the 5th day of May 1837, with 
the words " Lord Chancellor," the Plaintiff shall un- 
derneath the words " Lord Chancellor,** write the name 
,,of one of the Vice-Chancellors at his option, and the 
cause shall thenceforth, unless removed by some special 
order of the Lord Chancellor, be attached to such Vice- 
Chancellor's Court. 

III. That every cause and matter which at the time 
of his said resignation was attached to the Court of 
the late Vice-Chancellor Sir James Wigram be trans- 
ferred to the Court of the Vice-Chancellor Sir James 
Letois Knight Bruce ; and every such cause and matter 
is henceforth attached to the Court of the said Vice- 
Chancellor Sir James Lewis Knight Bruce^ unless re- 
moved therefrom by any special order to be made by 
the Lord Chancellor. 

IV. That every cause and matter which was attached 
to the Court of the late Vice-Chancellor of England 
at the time of his death (unless the same has been since 
transferred to the Court of any other Judge, be trans- 
ferred to the Court of the Vice-Chancellor Sir Robert 
Monsey Rolfe; and every such cause and matter is 
henceforth attached to the Court of the said Vice- 
Chancellor Sir Robert Monsey Rolfe, unless removed 
therefrom by any special order to be made by the Lord 

V. That all pleas, demurrers, causes, claims, re- 
hearings, further directions, exceptions, and petitions 
now standing for hearing in the paper of the late Vice- 
Chancellor Sir James Wigram, be transferred to the 
paper of the Vice-Chancellor Sir James Lewis Knight 

VI. That 


YI. That all pleas, demurrers, causes, daimsi re- 1850« 
hearings, and further directions, exceptions, and peti- 
tions now standing for hearing in the paper of the late 
Vice-Chancellor of England be transferred to the paper 
of the Vice-Chancellor Sir Robert Mansey Rolfe. 

VIL That all motions, petitions, and further pro- 
ceedings in causes and matters to which the foregoing 
Orders refer, shall (subject to the provisions of the 15th 
of the General Orders of the 5th Mayy 1837,) be heard 
before the Judges to whose Court the same are under 
the provisions of these Orders respectively attached, 
unless removed therefrom by any special order of the 
Lord Chancellor. 

Entered E. R Tburo C. 


Wednesday f 6th Nov. 1850. 

V. C. K. Bbuce. 

All claims filed under the Orders of Court of the 
22d Aprili 1850, are to be set down in the Registrar's 
book in the same list with the causes. 

They may be so set down by cither party for the 
day appointed for shewing cause, and are to be heard 
indiscriminately with the causes. 

But such of them as the parties may desire to have 
heard in the same manner as short causes are to be so 
marked upon production to the B^istrar of a similar 



1850. certificate as is required in the case of short causes, and 
will be heard as such on the days appointed for hearing 
short causes. 

Registrar's Office, B. O. Walker, 

7th November, 1850. Registrar. 


Thursday, 7th November, 1850. 

The Vice-Chancellor Rolfe. 

All claims filed under the Orders of Court of the 
22nd April, 1850, are to be set down in the Registrar's 
book in the same list with the causes. 

They may be so set down by either party for the 
day appointed for shewing cause, and are to be heard 
indiscriminately with the causes. 

But such of them as the parties may desire to have 
heard in the same manner as short causes are to be so 
marked upon production to the Registrar of a similar 
certificate as is required in the case of short causes, and 
will be heard as such on the days ap{)ointed for hearing 
short causes. 

Registrar's Office, H. E. Bicknell, 

9th November, 1850. Registrar. 





Saturday f \6th November 1850. 

The M A8TEB of the Rolls directs, that hereafter, all 
claims filed in this Court be set down in rotation with 
the causes, and that such only as can be certified to 
be short will be taken every Saturday with the short 
causes and petitions. 

J. CoLLis, Re^strar. 

Registrar's Office^ 
\%th November 1850. 

Vol. Xn. 




22nd of March, 1851. 
Whebeas it is expedient that some of the fees here- 
tofore payable in respect of certdn proceedings in the 
Court of Chancery should be abolished, and that others 
should be reduced in amount. Now I, the Right 
Honourable Thokas Babon Tbubo, Lord High 
Chancellor of Great Britain, with the advice and con- 
currence of the Right Honourable Henby Babok 
Langdale, Master of the Rolls, and the Right 
Honourable the yice-Chancellor Sir James Lewis 
Knight Bbuce, do hebebt obdeb and dibsct. 
That from and after the 31st day of March, 1851, such Fees in first 
of the fees heretofore received and taken by the Clerks abolish^- 
to the Masters in Ordinary, the Taxing Masters and 
their clerks, the Registrars and their clerks, the Master 
of the Reports and Entries and his clerks, the Clerk 
of Affidavits and Assistant-Clerks of Affidavits, the 
/Examiners and their clerks, and the Clerks of Records 
and Writs and their clerks, as are set forth in the first 
Schedtde hereto, shall be and the same are hereby 
abolished. And that such of the fees heretofore re- Fees in se. 
eeived and taken by the clerks of the Masters in reduced. 
Or^nary, the Registrars and their clerks, the Taxing 
Masters and their clerks, and the Clerk of Affidavits 
and Assistant-Clerks of Affidavits, as are mentioned 
in the second Schedule hereto, shall be reduced in 
amount, and in lieu thereof the fees set forth in the 
said second Schedule shall be received and taken re- 
•gpectively by the Clerks of the Masters in Ordinaiy, 
the Registrars and their clerks, the Taxing Masters 
and their derks, and the Clerk of Affidavits and 
Assistant-Clerks of Affidavits, and shall be by them 
Voi- XII. d severally 


185L serenillj and respectivelj paid into the Bank of Eng- 
land in the name of the Accountant-General, to be 
placed to the credit of the accoont entitled '* The 
Suitors* Fee Fund Account.** 


JvK* io cease on amd after ike 31</ day if Jfarek^ 1851. 

Im the Oficet ofiJke flatten im OnSmary, 

£ $. d. 

For inrwrigiting ercrjr title brought in before the Haster 
to be settled, and penisiiig the abstract thereof, upon 
the first 85 folios thereof - • - 6 8 

Upon ererr succeeding 25 folios thereof • - 3 4 

For ererr adrertisement issued br the Master - 1 I 

For creiT peremptory* adTertisement for the sale of pro- 
pertT with the approbation of the Master, in addition 
to the fbre^ing fee. to be repaid if propertr shaD not 
be oflcred for sale • - - - 3 

For signing the aUowaoce of ererr deed, reoognizance, 
set of interrogatories^ account, or other document al- 
lowed and s^ned bj the Master - - 5 
For evenr order upon a warrant - - •050 
For perusing and settling the drafk of ererr deed broueht 
before the Master to be settled (except lease tor a 
Tear), where such deed shall cot exceed 30 folios - 1 
"Where sQch deed shaD exceed 30 folios and not exceed 

50 folios - - - - - 1 10 

And where such deed shaQ exceed 50 folios and noc 

exceed 100 folios - - - - 3 10 

And where such deed shaJl exceed 100 fbfios • 3 

Fee on p i e p s iii^ recogoBnce • • - 1 1 

For an examinatioo foe on each witness, exclnsrre of 

oash - - • - -050 

For exasinxng ingroaocent of deeds, each skin - 3 4 

For comparing deeds, boolLs and papers with the sche- 
dule, on their being deposited or deiiiered ootp where 
the schedule shall doc anaocst to 50 fofios • - 6 8 

Where the schedule shall ansocnt to 20 folios • 13 4 

For expucgtcg scandal or impertinence oat of cterr 
record or docunaect referred, on ererr siach record or 

^.rfM ^|1HI^«1» j» • • • -too 

/« the Ofees c/tU Txxmg IfsiftTT, 

For ssgning the allowance to ererr set os sterrogsAcrxs^ 

or other dooHMnt -050 



'¥ot an examinatioD fee on each witness, exdusiTe of 

oath - - • • -050 

In the Regiiirof^M Qffice, 

For every certificate signed by the Registrar for the sale 

or transfer of annuities, stock, or exchequer bills, or 

for delivery out of the latter ... 

Por every other certificate signed by the Registrar 

For every copy of minutes of any decree or order, per 


For every exhibit proved mvd voce in Court • 

For entering every plea or demurrer 

For setting down causes, exceptions, further directions, 
pleas and demurrers, each (except for setting down 
causes on the Registrar*s days) - • • 

For setting down causes on the Registrar's days 







lu the Report Office. 

For every attendance with a report at the Masters' 

offices, for any material alteration to be made therein 6 8 

At tfie Entering Seats, ' 

For every cerdficate on Master's report • •01 

For entering every attachment - • • 

In the Affidavit Office. 

For registering every affidavit, for each side • •CO 

For expunging impertinence from an affidavit J • 1 

In the Examiner^i Office, 

For every certificate signed by Examiner 
For drawing every folio of depositions, where no office 
copy taken, when two terms shall have elapsed with- 
out the examination of any witnesses 
For eveiy interrogatory added • • • 

For every subpcena notice « • • 

In the Record and Writ Clerhe Office. 

For seating every dedimus to take an answer - • 10 
For seating of every specM dedimus by order of Court •0180 

For filing every answer or demurrer • • 10 

For every consent • - • • 7 

For fiting every note • « • • 7 

For fiting reptication • - • - 10 
For entering every memorandum of service of copy bill 

on every Defendant - - • - 7 







Feet to he r e c eived and taken by tke Clerks to tUe Masters m Ordmary, 

£ s. d. 

For enteriog accounts of recetrers coDsigpees, and com- 
mittees in each book (in lieu of the present fee of 6d. 
per folio), per folio - - - - 4 

For entering accounts of parties accounting before a 
Master in a book, if required (in lieu of the present 
lee of 6(f. per folio), per folio - - - 4 

Fees to be r eee i ee d and taken by tke Tamg Masters and tkeir 


Pfer-centage on amount of ererr bill of costs as taxed, in 
lieu of the present fee of 3/. - - - 2 10 (> 

Fees to be recened and taken by tke Begistrars and their Clerks, 

For even' order for payment of money out of court, 
vhere the sum or sums thereby directed to be paid 
shall exceed 100/. and shall not exceed in the whole 
500f. ; 

And for transler out of Court or sale of any sum or sums 
of Government Stock or South Sea Annuities (ex- 
cepting Long Annuities or Annuities for terms of 
years), when the sum or sums thereby directed to be 
transferred or sold shall exceed lOCWL and shall not 
exceed in the whole oOQ/. ; 

And for payment out of Court of any annuit}- or an- 
■Bitics exceeding 5/. and not exceeding in the whole 
%bL per annum, or of any interest or dividends upon 
stock or annuities exceeding bl, and not exceeding ^in 
tibe whole -ibl, per annum ; and for no other purpose, 
in lieu of the present fiee of SiL IQr. - .10 

For everymfliee copy thereof in lieu of the present foe 
ofU- - - - -0 10 

For erery other order for payment or transfor <Mit of 

Court, in lieu of the present foe of 2/. lOi^ - -200 

Fees to he reee k ed ami taken by tke Clerk ofjfidsriis ami 
Jssiiimmt<2erks of Afidnits. 

For every office copy of an afEdavit (in lien of the pre- 
it foe of \d. per side, and 4<il per side for rcgtster^ 
I, per tblio - - - 4 


L\>'GDALE, M.R. 








BBIDSON V. BENECKE. February 9. 


ri^HIS suit was instituted to restrain the infringe- a special in- 

-■• ment of a patent, granted on the 26th of May junction, on 

1836, for stretching, drying, and finishing wove fabrics, prevent the 

The patent was the same as that in question in Bridsm ^^!^^X 

V. M^ Alpine (a), in which case, the Plaintiflf obtained a refused, on 

verdict, and the Chief Justice had certified, under the felarno'l- ""^ 

5 & 6 fT. 4. c. 83. 8. 3., that the validity of the patent had withstanding 

.come in question. The Defendant in that case tendered ^ strong im- 

a bill of exceptions, on which, the Exchequer Chamber, pression in 

upon the 16th of June 1846, had determined in favour pudntiff's 

of 'Wl^ . . 

An injunc* 

(fl) 8 Beao. S89. tjon was re- 

fused, and the 

Plaintif put to establish his legal right. He was iucoesfful on the trial, but the 
Defendanu tendered a bill of exceptions. An injunction was granted, under the 
dreuiDstances, before the bill of exceptions had been disposed of. 



1849. of Bndt4m; ind on the 29th of Jmme foDowmg, an in- 
jnDCtioD wu gimnled by this Court agunst JPAfyiMtt, 

The Defendants in the present caae had pme ur Bd 
another patent to be granted to FkUHptj their manager, 
which thev used in their mannfactorv. The Phdntifi 
insisted this was an eraave imitation of their patent 

The Phuntifl& disooTered the alleged infringement in 

January 1&48. In AprS 1848, they gaTe notice to the 
Defendants to deast, bot Aej did not file their biD 
untO the 30th of December following. On the 15th of 
January 1849, thev gmve notice of moti(m for an in- 
jonction to restrain the Defendants from uang their 

Mr. Turner and Mr. J. J. IL HwmphrySj in support 
of the motion, relied on the long enjoyment, the es- 
tablishment of the validity of the patent in the case <rf 
BridMm v. M* Alpine, and on the affidavits in support 
of the application, which, they argued, clearly shewed 
the validity of the patent and the infringement by 
the Defendants. 

3Ir. Baupell, Mr. Cole, and Mr. T. Webster, contra, 
contested the validity of the Plainti£&* patent, and 
argued, that the question in the present case Offered 
from that in Bridson v. M* Alpine, the decision in which 
was not binding on the present Defendants. They also 
urged, that, after the great delay, the Plaintifl& were 
not entitled to an injunction imtil they had first es- 
tablished their l^al right. 

Mr. Turner, in reply. 



sStevens v. Keating (a), Harmer v. Plane {b\ Ex parte 1849. 
(c), Morgan v. Seaward (rf), Bridson v. M^ Alpine (e), ^ 
AF^^lpine v. Mangnall^g), Hill v. Thompson (A), Bloxam v. 

V. ^&<» (i), 77£e Z>w*e of Beaufort v. -ftform (A), ^iirtm 
V. Jkfasters (/), Spottiswoode v. Clarke (m), Bacon v. /S/?©^- 
tisuH^ode (n). Bacon v. t/iwie* (o), Collard v. Allison {p\ 
Leuyii V. Chapman ( j), Nielson v. Harford (r), fli?aM v. 
Unwin («), were cited. 

7%f Master of ^A^ Bolls. 

Haying r^ard to the length of the enjoyment and 
to the deddon in Bridson v. M^Alpine, I should^ if this 
matter had been brought forward without any delay, 
have granted the injunction, at the same time putting 
the parties on the terms of going to a speedy triaL 
And, without saying any thing which might prejudice 
^e lights of the parties in another place, it would then 
We been right for me to go, at length, into the reasons 
which brought me to that conclusion ; but I own I feel 
^^ great difficulty £rom the delay in this case. I think 
^ a party coming for the assistance of this Court to 
protect a l^al right, not absolutely established, against 
the party who is alleged to have infringed it, ought to 
^^e at an early period. I do not say, at the earliest 
P^ble period, because that would be putting an ap- 
plication for an injunction on notice, where all parties 


(a) 2 PkUSpt, S33. (0 2 Philiips, 290. 529. 

(i) 14 Vci. 130. (m) Ibid. 154. 

(c) 1 Fes. 4- B. 67. (n) 1 Beavan, 382. 

{d) IVebstef^s Pat. Ca. 110. (o) 4 Mi/L ^ Cr. 433. 

(0 8 Beavan, 229. (p) Ibid. 487. 

(g) 3 C. B. 518. (q) 3 Beav. 133. 

(h) 3 Mer. 622. <r) WebtUr't Pat. Ca. 371. 

(0 6 Bam. ^ Cr. 169. <#) 13 Mee. ^ W. 583. 

(^) 2 Pfti%»f , 683. 



1849. have an opportunity of being heard, in the same condi- 
^^^^^ tion as an injunction ex parte, which it would not be 
V. expedient to do. The rule of this Court is very strict, 

that you ^lust apply in proper time. 

Mr. Bridson was first informed of the proceedings 
of the Defendants in January 1848, and he Iiad then 
an inspection of the machine. He very soon saw, that 
the Defendants were infringing his patent; and in 
April, he gave distinct notice that he should proceed 
to establish his right against them. He then put the 
Defendants on their guard, and he was, at that time, 
so disposed to proceed actively, that he actually got a 
bill prepared before the month of May ; but, for some 
reason or other, he abstained from adopting any pro- 
ceedings whatever till the month of December. Now, 
if an action had been brought and diligently prosecuted, 
it might have been tried long before this time, and an 
action may still be tried within a very limited time. I 
think that I ought not to grant the injunction, though 
my impression is, that if this application had been made 
earlier, I should (upon the evidence now before me) 
have been disposed to grant the injunction, notwith- 
standing the cases cited, shewing the danger of granting 
injunctions when a legal right has not been absolutely 
ascertained. If the Plaintiffs endeavour to procure 
an early trial, and difficulties are interposed by the 
Defendants, I must give the Plaintiff leave to revive 
this motion; and, holding the impression I now do, 
delay on the part of the Defendants will then induce 
me to grant this injunction. 

An action was accordingly brought (^Maynalt v. 
Benecke), which was tried before Mr. Justice Coleridge 
and a special jury on the 2QX\Loi March 1849, when the 



jary found in fieiyour of the patent The DcfendantSj 
however, tendered a bill of exceptions to the Judge's di- 
lectioos to the jury, which had not yet been disposed of. 



Mr. Turner and IVIr. J. J. H. Humphrys renewed 
their motion for the injunction, contending, that as the 
Plaintiffs were in possession of the venlict, backed by 
the opinion of the Judge, there was sufficient, after the 
BtroDg intimation of opinion expressed by this Court 
on the former occasion, to induce the Court to protect 
the Plaintiff in the enjoyment of their patent, 

Mr. Saupelly Mr. Cole, and Mr. T. Webster^ contrct, 
argued, that the Plaintiffis, not having as yet obtained 
judgment in their favour, were not entitled to an injunc- 
tion: Bridsan v. M' Alpine, (a) That the state of the 
case bad not been materially altered since the last 
niotion; and, as the Defendants' trade would be stopped 
hy the injunction, without the power of recompensing 
the Defendants, if they ultimately were found right, the 
Court, considering the balance of inconvenience, ought 
not to interfere pending the bill of exceptions, which 
laiaed substantial objections to the verdict. 

The Master of the Rolls. 

No argument was necessary to establish that a verdict 
is not a judgment, and that a bill of exceptions may 
possibly prevent the verdict from ever becoming a judg- 
ment That, I think, would be admitted. Thinkin^r^ 
as I do, on the one hand, that this Court is not absolutely 
bound by the verdict, and thinking, on the other hand, 
that this Court ought not to disregard altogether a ver- 

(a) 8 Beavan, 290. 

B 3 

Apnl 16. 




diet which has been given after a careful trial, the result 
is, that this Court must act according to the drcum- 
stances appearing in each particular case. 

The question really is, whether, in this case, and 
having regard to the manner in which it has been brought 
forward, I ought, at this time, to grant the interlocutory 
injunction. I think I ought ; and my opinion is 
grounded upon these reasons : — first, there has been a 
long enjoyment, which I consider a matter of very con- 
siderable importance ; secondly, there is the decision in 
the case of Bridson v. M^ Alpine as to some points ; and, 
so far as the same points were ndsed in both cases, 
I consider Bridson v. M^ Alpine to be an authority, 
but not further. I do not think that the Defendants 
in this case are bound by M^Alpine^s case, as to any 
matter which was not strictly brought under the judg- 
ment of the Court, in such a manner as to constitute 
it an authority like any other authority in the books. 
I cannot concur with the argument, that, because the 
points might have been raised in M^Alpine^a case, I am 
therefore to consider the parties in this case are in any 
way bound by that. I consider it is an authority as 
to points decided in it, and which the Defendants in 
this case have endeavoured to take advantage of. 

Thirdly, we have the evidence brought before me 
on the former occasion; and I cannot forget, that I 
had then a very strong impression that the merits 
were in favour of the Plaintiffs. Finding that impres- 
sion strongly corroborated by what took place at the 
trial, upon a careful examination of the witnesses and 
the summing up, and having regard to the opinion of 
the learned Judge, I need not say, that my impression 
is greatly strengthened. The question remains, whether 
I can, on the mere ground that a bill of exceptions has 



been tendered to the Jadge^ refuse to the Plaintif& the 1849. 

benefit of all these circumstances. ^^^"^^^^ 



I am perfectly aware that the jurisdiction of this ^**'«c"- 
Court does necessarily appear to be somewhat ano- 
malous. The Court acts in aid of a legal right, and 
y&t, as I have already observed, there are many cases 
in vrhich the Court is to such an extent satisfied that 
the legal right exists, that it will often give the Plain- 
tiST the benefit of the jurisdiction, at the very same 
time that it thinks, for greater satisfaction, that there 
oaglit to be a subsequent trial. Cases of that kind 
b&ve frequently occurred where the Court is not quite 
aatisfied, though the usual course is, to let there be 
a trial, and after that trial has taken place, and the 
veidict has been obtdned, the Court will then deter- 
mine, with reference to the circumstances, whether an 
injunction ought or not, at that time, to be granted. 

Undoubtedly, if there could be a final adjudication 
of this matter at law in the course of a few weeks, I 
might possibly be of opinion that the injury done to one 
party by delay would be trifling in comparison to the 
positive injury done to the other. But I am not satisfied 
that it would take so short a time to bring this to a final 
conclusion, by settling aU those points of kw. On the 
contrary, I think that, having regard to the circiun- 
stances of this case, much more injury would be done to 
the Plaintiffs by delaying this injunction, than to the 
Defendants by granting it, even if it should turn out 
afterwards, on the decision of the court of law, to be er- 
roneous. Nobody can shut his eyes to the danger there 
is of committing error in cases of this kind : the risk 
of error is perhaps greater in these cases than in most 
others ; but I think I ought, under the circumstances of 
this case, to grant the injunction. 





24. 26. 
April 4:, 


ration of LONDON. 

f^'^rtv^^oll TPHIS case related principally to the right of the 
ing a fiduciary -** Corporation of the City of London^ to the soil 

proMrty^ and bed of the river Thames within certain limits, 
under another, 

coveryofthe ^^^ demurrer having been over-niled (a), and the 
particulars of dedsion being affirmed by the House of Lords (6), the 

an adverse 

title set up by Defendants put in their answer^ which it was now 

Th Co alleged was insufficient. It is necessary to re-state the 
ration of Ixm- facts as concisely as possible. 

don^ who held 

the office of 

consenrators The information insisted on the right of the Crown, 

7%mes under hy royal prerogative, to the ground and soil of the river 

the Crown, 
claimed the 
freehold of 
the bed and 
shores, and, in 
answer to an 
which insisted 
on the right of 

the Crown thereto, set up a prescriptive title, and refused to discover the charteni 
&C. under which they held, the particulars of their title, the mode in which they 
intended to make it out, or the evidence by which it was to be supported. They 
admitted the possession of documents relating (as they said) to their own right, 
and which formed material evidence for them, but did not (as they said) tend to 
prove the right of the Crown, and they submitted they were not bound to set forth 
a list thereof. The Court, on a consideration of the whole case, having regard to 
the nature of the title claimed to the bed or soil of the river, to the circumstances 
under which it was claimed, and to the fiduciary relation which subsisted between 
the Crown and the Corporation in respect of the conservancy. Held, that the De- 
fendants were bound to give the discovery required. 

There is no authority for saying, that the grantee of an office, the duties of which 
are performed upon land originally belonging to the grantor, is not entitled to 
compel the grantee of the office, claiming the land, to discover the means by which 
he has (as he alleges), during his exercise of the office, become entitled to the land 
or property upon which the authority to grant the office de[)ends. 

Thames ; of which river, it alleged, the Corporation of 
London had for a long period, ** either by prescription, 
or under some grant from the Crown," held the office 


(a) 6 Beavan, 870. 

(b) I H. Lds. Ca, HO. 


of bailiff or conservator, with the duty to see to the na- 
Tigation, prevent obstructions and nuisances, and regu- 
late the fishing thereof; but that they did not, by virtue 
of such office, acquire any estate or interest in the 
ground and soil of the bed or shore of the river. 

That the Corporation had lately claimed to be seised 
of the freehold of tlie ground, bed, and soil of the 
river, and had assiuned to exercise acts of ownership 
which were beyond their power as bailiff and con- 







of London* 

The information then stated particular instances, in 
which the Corporation had, for a pecuniary considera- 
tion, granted licences to embank the river between the 
high and low water mark, to the detriment of the 

It contained the following five charges, which gave 
rise to five exceptions, and which, with the correspond- 
ing portions of the answer alleged to be insufficient, 
for convenience, are here numbered. It charged (con- 
trary to what was stated to be pretended by the Cor- 
poration), — 

1. That no grant had been made, by charter or let- 
ters patent by Her Majesty's predecessors, of the soil 
And bed of the river to the Corporation ; 

2. That in no charter had any immemorial right of 
the Corporation to the ownership of the soil, bed and 
shore of the river, as arising from a previous grant, 
been recognised or confirmed ; 

3. That a certain charter of 23 Heju VI. was of no 
force to convey to the Corporation the soil, bed and 



1849. shores, and that if the language was sufBdenty it had 

^"^li^^^^ been revoked ; 
Gbnbral ^^ j|. g|;|||j^ ^|j ^Q Corporation pretended, that 

The their right to the freehold of the soil was founded on 

SJSJJU^*! immemorial usage, and that it was evidenced by acts of 
ownership exerdsed by them, and by various deeds, 
matters and things from time immemorial ; but the in- 
formation charged, that no sufficient acts of ownership, 
deeds, matters, or things could be shewn, as evidence 
of such inunemorial usage. 

5. It also charged, that the Defendants had in their 
possession some charters, letters patent &a &c. relating 
to the matters aforesaid, whereby the truth of the se- 
veral matters thereinbefi»e stated would appear. 

The information contained interrogatories correspond- 
ing with these statements in the usual fonn. 

The Corporation* by their answ^, stated, that they 
were a Corporation by {urescription ; and that they bad, 
from time immemorial, ^^^ been seised and possessed of 
and well entitled unto, and been in the actual uninter- 
rupted pcK$i«e;$sion of« by the exercise of acts c^ ownership 
oven the bed and soil of the rivier Thaames, and the 
banks and shores thereof, between high and low water 
mark;^ and had, ^for all the time alibresaid, been in 
tho actual and exclusiTe exereee and enjoyment of all 
such r^ts and powers, as belonged t^s and were 
capable of beii^ ejxictsed aad en|OTed by, the owner 
of the l^;al estate and interest in the bed and soil 
of the Slid river,^ within the limits in qtaesuoo, and 
they daimed the benefit of tke Smllmm TnmjMLf Act. {a) 

(«) 9g;.xc.i«^ 



They denied the right of the Crown^ and admitted, 1849. 
that from all time, the Corporation had, by the Mayor, ^"^IJ^Sf*^^ 
''held the office of bailiff and the conservancy of the Attornbt- 
river Thames^^ with the duties stated, which office was ^w^"»^ 
distinct from their ownership. And they submitted. The 
that their rights &c. as baiUff were distinct from, but SnS^jj^' 
conyeniently exerciseable and compatible with, the rights 
&C. as owners of the freehold of the bed, shore and soil ; 
for they submitted, that the Corporation, as bailiff and 
conservators, were enaj^led to exercise the prerogative 
powers &c of the Crown over the river, ^^ and which, 
but for such grant, would have remiuned vested in" 
the Crown. 

They admitted the several grants made by them as 
owners of the freehold, and not as conservators ; and 
that they had received considerable sums of money for 
fines and rents ; but they denied the embankments were 
a nuisance or injury to the navigation. 

They claimed the benefit of the Prescription Act of 

And as evidence of acknowledgment, on the part of 
the Crown, of their right, they stated, that, in the reign 
of Queen Elizabethy the Lord Treasurer Burleigh 
expressly stated, "that the Thames and the conser- 
vation thereof were not only given to the city of 
London, but, by special suit, the King gave therewith 
all the ground and soil under the same. Whereupon, 
if any that hath a house or land adjoining do make 
a stand, stairs, or such like, they pay forthwith a rent 
to the city of London, how high soever they be above 
the low water mark." 


(fl) Chap. 71. 


1849. Tlicy stated as further evidence, that the Commia- 

^"^^^^ sionera of the Navy, in 1788, had obtwied a grant 

ATTomNav* from the Corporation of permission to make an em- 

^^•^ bankment, and that the Trmity House in 1793, and 

TIm the Victualling Board in 1793, had obtained leave to 

^^'l^Mw. ^^^ wme piles into the bed of the river. 

Thej said their title had been undisputed for two 
centuries, and that the right claimed was a pure l^al 
right ; that this Court had no jurisdiction to detei^ 
mine it; and that the Attomey-Grenend ought to 
appeal for redress to a court of common law, or to the 
Court of Exchequer sitting as a Court of Revenue; 
and they claimed the benefit of the 21 James 1. e. 14. 

1. And they submitted, that to oompd the Defend- 
ants to disoover whether any charter or letters patent 
of the Crown contained any grant of the ground, 
9oil or bed of the river, or to set forth under what 
charter &c. they churned the freehold^ woukl be to 
vioiale the spirit and intention of that statate(a), 
and a subvei^ion of the common law r^t and prin- 
cipfe» that the claimant of an csstate of fireehoM shall 
recover by the strei^^ of his own title, and shall have 
no right to a dkcovery of the title by which such estate 

3. Thev submitted and insbted. for the re»Qos 
afoce&aid. that they were not booai^ and ought not to 
be compeUed to answer and »H focth^ whether it k not 
tnse^ that in no charter or charters s:ranted to the citr 
oiZdmitm by any of Her Ma^esty^s pn^kcesiKC^ hea^ any 

inKneDMcial rie^t of the swi ubit^ic and ojmnKianhT 

•» * « 

val cttizefts olf the ownership of tii^e sud sixl» Ked. ^ikd 
dbdces %?f the si^i river« &^ arssiag frvm axne pcevixBs 

(x> it Jinn L c 14. 



grant as in the said information mentioned^ been recog* 
nued and confirmed, or how the Defendants make out 
the contrary, or by what charters or letters patent or 
other documents the Defendants, the mayor and com- 
monalty and citizens of the said city of London^ maintain 
that the said right is recognised and confirmed. 

3. Or whether it is not true, that the charters or 
letters patent of his late Majesty King Henry VL, in 
the said information mentioned, is or are of no force 
Mid effect to pass or convey to the said mayor and com- 
monalty and citizens, the said soil, bed, and shores of 
the said river, or how the Defendants make out the con- 
tnry; or whether it is not true, that such charters or 
letters patent have or has been subsequently revoked, 
rescinded, or annulled, or how the Defendants make out 








4. Or whether it is not true, that no sufficient acts 
of ownership, on the part of the said mayor and com- 
monalty and citizens, or other deeds, matters, or things 
can be shewn, as evidence of such immemorial usage as 
that set up by the Defendants, the mayor and com- 
monalty and citizens of the said city of London^ or how 
the Defendants made out the contrary, and they claimed 
the same benefit, as to so much of the said information 
as they thereby submitted they were not bound to an- 
swer, as though they had pleaded or demurred thereto. 

5. They admitted, that they had in their possession 
certun deeds, charters, letters patent, &a, &a, relating 
to and touching and concerning the said right and title 
of the Defendants to the freehold of the bed and soil 
of the said river Thames, and the enjoyments thereof, 
oil which several deeds &c., &C, *^ evidenced or shewed, or 



1849. tended to evidence and shew^ such right or title of the 
^^^^ Defendants as aforesidd/' and all which " formed material 
Attorney* parts of the evidence possessed by the Defendants of 
\^ their aforesaid right and title> and all which were in- 

i\J^^ . tended to bo made use of and given in evidence by the 
of London. Defendants, in support of their said right and title, in 
tills cause, and none of which several charters, &c., did, 
as the Defendants were advised and believed, evidenced, 
or tended to shew or prove the pretended or alleged right 
of the Crown set up in the information; nor would the 
Informant derive any proof in support of his case, frcmi 
the production of such charters, deeds, instruments, 
entries, or other documents, or any or either of them." 
But the De£^dant8 said, that they could not specify 
or describe such deeds, charters, &a, &c., or any or 
cither of them, in any list or schedule, without, as they 
were advised and believed, <]UdcIosing the natnie and 
dxaracter of the evidence on which they intended to 
rely, as proof of tbeir aforesaid right and title. And, 
therefore, under the circumstmnoes tho^dn stated, the 
IX^fendants subnutted and inasted, that they were not 
bcmnd. and ov^i not to be compelled, to set forth m list 
or schedule of such deeds, instzum^ts, charters, &c. 

ThcT admittied the poss«99kMi of other docmnentB^ 
&<w« "^ rciatiiig ti> the matt^^st^ in the infonBUtioii men- 
tkttod other than the title of the Ddendants to the bed 
and iical of the rivor ThasmaC a K$t of whidi they act 
fi^nh in the schoiiulo. and. save as aforosaid, they 
dc3ikid% &c.« &c« 

To ihK^ axi^wer the At^wftfr^TOMsnl took fii« ex* 
ocfOiois 1^ the fire ponioii» to which, for 
imaiibix^ haw IwA pnofixed. 



The Master allowed aU these exceptions, and they 
were now brought before the consideration of the 
Coart, upon exceptions to the Master's report 

Mr. Bethett and Mr. Bandell, for the Defendants. 
The Corporation have two distinct rights, first that of 
coDflervators, to protect the navigation for the public, 
and prevent nuisance, as to which no point as to title 
can arise ; secondly, they set up a prescriptive inune- 
morial title (a) to the bed and soil, and they appeal to 
Tarious acts of ownership, and to repeated acknow- 
ledgments and recognitions of that right by the Crown 
itself. When the proper time arrives they must make 
out that title; but, until the hearing, the Informant 
has no right, by alleging that the deeds will not make 
out the Defendants' right, to have a discovery of the 
titles or of the Defendants' evidence. 



Attorn BY* 


of London. 

The Attorney-General, like any other suitor, is en- 
titled to all the discovery which is necessary to make 
out his own title ; but he has no right to compel a 
Defendant to state his title, or, by anticipation, the evi- 
dence on which the Defendant intends to support it. 
A Plaintiff must succeed by the strength of his own 
title, and is not, by a mere all^ation of right, to com- 
pel his adversary to expose his title, and thus enable 
persons to pick holes in it. The rule is thus stated by 
Lord Brougham in BoUon v. The Corporation of Liver^ 
pooHiy, « I take the principle to be this: — A party 
^ a right to the production of deeds sustaining his 
own title affirmatively, but not of those which are not 
unmediately connected with the support of his own 
title, and which form part of his adversary's. He can- 

(a) Co.LU. U5a. 

(b) iMyl. 4- K.p,9\.i and 
see i9.C. S Sttiumi, p. 490. 








of LoMDOIt^ 

not call for those, which, instead of supporting his title, 
defeat it, by entitling his adversary. Those under 
which both claim, he may have, or those under which 
he alone claims. Thus an heir at law cannot in that 
character call for the general inspection of deeds in the 
possession of a devisee." Agiun, in Glaoer v. Hall {a) 
production was refused where the Plaintiff shewed, 
upon the answer, no interest in the deeds, and the lia- 
bility to a disclosure of the contents was denied and 

The answ^ states £stinctly, that the sevend deeds, 
^«, eviikMice the r^t of the DefeadaatB, and do not 
shew the right of the Crown. Tbe common kw right 
of the Crown requires no diseoTeiy or eridenoe to prove 
it ; nor is it alkjred to be necesBarr: yet the Attoraej- 
lit'nend joiyss *^ shew me what is the natnve of your 
titkw and the dmb by whidi it is supported.' TUs 
is <\wiinunr Ki tlie law of tlie Coot. TW e hf e ctkni to 
Wttk^ a dMv^x^MT of tlie IVifendantls title wukw be mnde 
by answvrns w^ as by plea : Btl himt J t> WieiktwwB{h\ 
RuAm r. Dmt {^ir\ mitestt Locd ^hi A i a A ^Jkmtd the 
<cK<y|«iwi t«> the i>^pMt : fcr tiaa yina «»■»« cnne W n 
Iklm^ V^ in ibis i\wat« aaii pray a dbuwuy of the 
4m^ asMl wijdi^ «f IVfimiuaV task. If inked (he 
^d%itr!r«yv}^ t)»<w w^$ aur <dao!^ in t^ l£L senend or 

Vr 1^ Or^wn ^^ Armincil a mMmv ^nnia an 

«r uanswot Yi" «K Att )» tsW tm fHftA 3» 

!•■ « 


exists. The 21 Jac. \. {a\ after redting that «< Where 1849. 
the Bang, out of his prerogative royal, may enforce the ^^rT^^ 
sabjeot, in informations of intrusion brought agunst him, ATToaiiBTb 
to a qpedal pleading of his title,'* Ac. it is enacted, "That ^^^^ 
vhensoever the King," &c " hath been or shall be out The ^ 
of possession by the space of twenty years, or hath not ^j^JJ^^ 
or shall not have taken the- profits of any lands, tene- 
ments^ or hereditaments within the space of twenty 
j€U8 before any information of intrusion brought, or to 
be brought, to recover the same, that in every such case, 
the Defendant or Defendants may plead the general 
inae, if he or they so think fit, and shall not be pressed 
to plead specially; and that in such cases the Defendant 
or Defendants shall retun the possession he or they had 
>t the time of such information exhibited, until the 
^*tle be trie^ found, or adjudged for the King.^' 

So the act abolishing the Star Chamber (&) is as fol- 
lows:— <^ Be it likewise declared and enacted, by au- 
tkority of this present parliament, That neither his 
Majesty nor his Privy Council have or ought to have 
t&7 jurisdiction, power or authority, by English bill, 
potion, articles, libel, or any other arbitrary way what- 
Boever, to examine or draw into question, determine or 
dispose of, the lands, tenements, hereditaments, goods, 
or chattels of any the subjects of this kingdom, but 
that the same ought to be tried and determined in the 
ordinary courts of justice, and by the ordinary course 
rf the law.'' 

It will be found, upon examination, that the case 
ef the Attomey^General to the Prince of Wales v. 
SL Aubyn (c), which was principally relied on in the 


{n) Chap. 14. (r) Wi^klwkh. 167. 

(&) 16 Cor. I.e. 10. «. 5. 

YouXil. C 


1849. ^a^ter^ office, in no way determined the contniry. 

'"^^i^^ JParmeter Y. The Mtamey-GeneraKa), The Attorney^ 

^TTORNBT- ^General y. Richards {b), The Attomey^General fot the 

Obnbbal jDuchyof Lancaster v. Lard Derby (c). Again, that 

.The principle is applicable only, to informatione of intifa- 

^tLwwni. t^<>^ ^ ^® Exchequer, the jurisdiction as to which 

Jias not been transferred to this Court : The Attorney* 

-General v. HalUng{(i) and Th/s Attomey-General v* 

JIaUett. (e) Even if the jurisdiction has been trans- 

jferred, the practice has not 

• The Crown b barred by the NvUum Tempus Act^ 
9 (?. 3* e. 16., and the Statute of Limitation^ 3 & 4 
W.^ C.27. 

Bwrr^U v. Nkhclson {y\ Smith y. Duke, of Beau* 
fort{h)y Edtcards v. Jones (i)y Chitty's Prerog. 256., 
Stattndeford, 67 i., The Attorney* General v. Vernon (k) 
were also cited. 

' Sir J. /ZomtTiy (Solicitor-General), Mr. Turner, and 
Mr. Maule for the Crown. 

Treating this as a question between salgeet and sub- 
ject, and independenUy of the prerogative right of the 
Grown, the answer is insuffident in all the points ex- 
cepted to. A Defendant is bound to state, in a definite 
and distinct manner, the case on which he int^ids to 
rdy, in order that his adversary may know what it is 
necessary for him to meet and prove at the hearing« 
In other words, he must plead issuaUy. The rule as 
to c^srtainty is ^ually strict upon a Defendant as on a 

f«) I i>Ms SI6. Or) t JifyL 4 r. 680. 

{k) » Ati. SOS. {k) \ Hmr, 507. and 1 PkiU. 

(i) K'V M4r, i tr, e$t. (i) I nHSgn, JOl. 

(e) IM. SI, (i) I Wrm. tT7. 


FUdtiff; and the title of the latter must be plainly 1849. 
avmed on the record ; Wormald v. De LUk (a), BalU 
¥• Margrave, {b) It is inaidBBcient for a Defendant to 
9Kjy by hk answer, '' I daim the property, but I will 
-«t.««ta the hearing, give you any mfonaationafl to ^ _ 

tlie mlore q£ my daim.'* The role as to production of of Lojipoir. 
tide deeds^ has no spplicatiim to questions as to the 
<>bIigation oi a Defendant to state the nature of the 
on by him. 

l^Redesdale (c) states, that an answer is required to 
obtain an admission of the case made by the bill, a dis- 
cmiy of the points in the Plaintiff's case controverted 
bj the Defendant, ^* and a discovery of the case on 
vhich the Defendant relies, and of the manner in 
which he means to support it" 

And the Vice-Chancellor Wigram, in commenting 
<Ki this passage, observes: '' The first of these proposi- 
tions, that a Plaintiff is entitled to a discovery of the 
<3tte on which the Defendant relies, that is, that the 
Plaintiff is entitled to know what the case is, admits of 
110 doubt The common rules of pleading make it ne- 
ccttaiy that the Defendant should so state his case, 
that the Plaintiff may know, with certainty what case 
he has to meet ; and, in the strict observance of those 
'Q^ a Plaintiff is secure against surprise." (d) , Here 
the Defendants have left in tmcertainty what title it is 
they lely on : they are bound to answer the inquiries, 
and &tincily state it 

% Bat there oists between the Crown and the Cor- 
P^f^&m such a relation as to place the latter under on 


(a) ^Seavan, 18. (d) Wigram on Ditcovery, p. 

(b)aiiL»ii. 285. (3d ed.) 



obligation to furnish the required discoTery ; the Crown 
having, by its prerc^ative, the right of property and 
ownerstup of the eoil of the River Thame», between high 
water and low water mark (a), has made a grant to tha 
City of London of the conservancy (&) for the protecUon 
of the navigation and fishing; and the case alleged is, 
that the City, availing themselves of that officCi have en- 
croached on the rights of the Crown, and made grants 
of the soil. The City, therefore, standing in a fiduciary 
utuation towards the Crown, as its bailiff or con^ 
servatoF, boa a duty to protect the rights and interests 
of the Crown, in the some way as a tenant is under an 
obligation to take care of the right of his landlord. 
Speer v. Crawter (c), and who is even bound to produce 
an opinion of Counsel taken by him with reference to 
his landlord's title, Attorney^ General v. Berkeley (<i). 
The Defendants are incapacitated from encroaching, and 
then setting up an adverse title to the soil, which would 
be totally inconsistent with the office held by them 
under the Crown. They can have no title to the 
soil, except under the Crown, and' are bound to spedfy 
what has been granted to tbem, and in what character 
they hold. 

The ordinary principle is, that where a person in s 
fiduciary situation claims something inconmstent with 
the acknowledged subsisting relation, he is bound to 
discover the extent of it Thus, where a tenant 
ocmfuses the boundaries of his Undlord's property 
liis own, he is bound to separate them; ^xer 
r. Crawter. (e) Could the bMliiF of an estate, when 
oaUed up to account, be permitted to say, " I am the 

(a) Half, Dr Jin Marutf 19. 
(«) Ibid. p. 2J. 

(0 nifK,,.iis. 

(d) 8J«:.*»r-2fll. 
(.) 2 iWir. ilO. 



•wner of the property^ I have let the estates^ received 
the rentSi cut timber, and exercised other acts of owner- 
ihip; I deny your title^ and decline telling you what 
miiieuf, and giving you any information respecting it ? " 
Such, however, is the nature of the case here. A 
similar illustration, put in tJie House of Lords, was 
this: — If the warden of a royal forest, with specified 
duties, were to cut timber or take the soil, could he re-* 
fose to state the extent and nature of his duties, or bo 
allowed to set up an adverse title to the soil ? 






of London. 

Agun, the Defendants have not set up their case by 
{dea of adverse title ; that would not be possible, for 
the modem acts of ownership are referable to their 
duuracter of bailifl^ and no possession^ if possession 
eould be had of a public navigable river, could be 
advene. They have submitted to answer, and must> 
therefore, by the rules of pleading, answer fully : Shaw 
v.Ching (a) : the 38th General Order o{ August 1841 (b) 
applies only to matters which are demurrable, and not 
to matters which may be covered by a plea. 

3, By its prerogative right, which is exercised in this 
case wholly for the public hene&t. Attorney- General y^ 
Joknium(c)f the Crown is entitled to sue in the Ex- 
chequer, and to have the Defendant's title set out on tho 
wcord ; 4 Inst. 116., Corny ns^ Dig. Prerog, D. 74. Sir R. 
J^h V. Hudson (d), The Attorney- General v. Allgood. {e) 
That right is unaiTected by the 21 Jac. 1. c. 14., for the 
Crown has not been out of possession twenty years. 
That peculiar jurisdiction of the Exchequer has been 
tnawferred to the Court of Chancery by the 5 Vict. 
^ 5. § 1. Attorney" General v. The Corporation of 


(fl) n VcMey, 303. ; see Lan- (c) 2 Wilton, C. C. 87. 

«»fcr V. Evwt^ I Pmi\^, 349. (rf) Ihjer^ 238, 

W Orti, Can. 175. (e) Tarker, 1. 



1849. London (a), whioh ease was not over-ruled by the de» 
^'^^r^^ ^01^9 on appeal, in the House of Lords, and is still 
ArroRNsTr binding here, notwithstanding ITie Attamey'General y« 
General HaOinff (4), and Attomey-Oeneral v. Hallett. (c) 
^f^^j^^j^^ Even on the proceeding upon a petition of right, it 
was held by Lord CotUnhamy In re De Bode{d), that 
the first proceeding was to ascertain the title of the 
claimant, by a jury. 

It does not follow, that because this Court exercises 
a jurisdiction, the right of the subject will be deter- 
mined here without the assistance of a ooiurt of law or 
a jury ; for this Court, if necessary, may, for its satis^ 
faction, either direct the Attorney-General to file BXk 
information of mtrusion against such Defendants bb 
have intruded, or direct an issue or case to a court of 

Mr. Bethell in reply. First, the Defendants have 
pleaded issuably; they have pleaded a common law 
prescriptive title in the usual form ; but, if they have 
not, they alone will sufier by it at the hearing. '^ It is 
at the peril of the Defendant, if his pleadings are 
defective in this respect ; but this is quite independent 
of the law of discovery." («) It is the essence of a 
prescriptive title to rely on the immemorial usage : to 
rely on written documents, would at once destroy it 

Secondly. As to the allied fiduciary relation. The 
ofiice of conservator is not like that of a bailiff account- 
able to his principal. The duties are p^ormed by the 
Mayor, and not by the Corporation aggregate. The 


(a) 8 Beavan, «70. (rf) L. C. July 15th, 1840. 

\b) UMee/^ >r. 687. (e) fVigramonDucovery.285.' 

(c) Ibid. 97. (2d e«L) 



DdaAaiiB have given all the neoeasary discovery in: 
lespeot of that relation ; bnt the right of the Crown to 
difloovery in respect of the conservancy, gives no right : 
of difloovery as to the independent title of the City to 
the soil of the river. If A» B. were owner in fee of 
an estate^ and trustee for C. D. of a rent charge issuing . 
oat of it, C. D. could not maintain a suit to discover 
A.B.'% title to the fee, or insist on any discovery uUra 
the rent diarge. 

ThirdDy. Ab to the prerogative right to discovery of 
a Defendant's title, it no longer exists. The Attorney'' 
General v. SL Aubin(a), at the utmost, merely de-, 
cided, that the remedy by information of intrnuon, 
existed in a case of legal demand ; but the question as 
to the right of the Crown to a prerogative discovery, 
anoe the statute of Jamee, was reserved, (b) 

The Masxsk of the BOLLB reserved his judgment. 


Attornst- . 


of London. 

The Masteb of the Bolls. 

This case came on upon exceptions to the Master's 
nqxnrty by which he has allowed certain exceptions, 
taken by the Attorney-General to the Defendants* 
ttswer to the information. 


It is admitted that the answer is not full ; but the 
Defendants, having answered to some extent, insist, 
that they are not bound to answer further ; and they 
support their exceptions, principally by saying, that 
haidng stated a suflScient title to the matters claimed 
by the Crown in this information, they are not now 


(a) mghiiekk, 167. 

(b) mghiwiek,p.'2ia. 

C 4 



bound to state fiirtlier the putieulan of that title, tlw 
mode in which they intend to make it out, or the evU 

ATTOKHn'-' dence I^ which it is to be mpported. 

Tfa« In the conno of the argument, in thia caee, it waa 

of LmDox. sa^ested, that thie endeavour to enforce further dis- 
coTciy in this case was an attempt, on the part of the 
Crown, to encroach on the rights of the subject. In 
this place, and on this occasion, I have nothing to do 
with any question of that sort; but the suggestion 
seems to require the ohserration, that the Crown, by 
this information, is seeking that, which, if recovered, 
can be held only for the benefit of the public at lai^, 
and not for any private or separate interest whatever. 

In the oonsideration of the case, we have to connder 
both the office of conservator or bailiff of the river 
Thames, and the right to the ground and soil of the 
bed and shores, between high and low water marks of 
the same river. 

It is stated by the information and admitted, that 
the Mayor or the Corporation of the city of London, 
has, for a long period, held and exercised the office of 
buliff or conservator, the office being exercised by the 
Mayor for the time being, or his sufficient deputies. 

Upon this there is no controversy. The informatioa 
fiittber aUoga^ 1. That by the royal prerogative, the 
round and sail of the coasts, and of every port, haven, 
i arm of the aea, and nnvi^ble rivers into which the 
) and flows, and tlio shores between high and 
r marks belong to Her Majesty, and that Her 
rhath right of empire and government over the 
» of the kingdom. 2. That Her Majesty 
!t^iiton, time out of mind, is and have 



been Mised, in right of the Crown of England^ of and 
in the port and haven of London^ and of the river 
TkmeSf the same being an arm of the sea into and 
from which the sea has always flowed and re-flowed. 
3. That the same river is also, and from time imme*- 
morial has been, an ancient, royal and navigable river 
and King's highway, for all persons with their ships, 
Teeseb, boats and crafts to pass, re-pass, and navigate, 
at their free will and pleasure, and to moor their vessels 
in convenient parts of the river not impeding the 
navigation thereoC 4. That the Defendants have held 
the oflSce of conservator of the river, by prescription, 
or nnder some grant from the Crown. 5. That the 
duty of the Mayor or Corporation, as bailiff or con- 
aenrator, is to see to the navigation of the river, to 
prevent the erection of nuisances and obstructions in 
the river, and to regulate the fishing thereof. 6. But 
that the Afayor or Corporation does not, by virtue of 
the oflice of bidliff or conservator, take or acquire any 
interest or estate in the ground or soil of the bed or 
thores of the river. 





of London. 

Sodi bdng the general allegations relating to the title 
of the Crown, the Defendants, on their part, allege, that 
^ Corporation is, and from time immemorial has been, 
B^aed and possessed of, and well entitled to, and been 
in the actual iminterrupted possession of, by acts of 
ownership over, the bed and soil of the river and also the 
txaib and shores thereof between high and low water 
>Daik8| and has, for all the time aforesaid, been in the 
^otoal and exdurive exercise and enjoyment of all such 
'^ts tt belong to, and are capable of being exercised 
ttid enjoyed by the owner of the legal estate and in- 
^oreat in the bed and soil of the river. 



This claim, in ahorter expresaion, bae beCn tit tiie bar 
(I think correctly) explaioed to be, a claim, on the part 
of the Corporation, to be entitled, by prescriptiooi to ihe 
freehold of the bed and shores of the river : t. e. to the 
land itself over which the river flows. The Corporation 
churning this title, not to any incorporeal hereditament, 
but to the land, further say, that from time immemorial, 
thoy have bad and held the office of baili£f or con- 
servator (the conservancy of the river being exercised 
and occupied by the Mayor for the time being or his 
lufficiont deputies), and have taken, for their own use, 
all wages and profits perttutung to the same office of 
buliff. The claim of the Corporation seems to be, that 
it has been immemorially owner of the land over which 
the river flows, and has immemorinlly held the office 
of bMlifF or conservator of the river. 

It may bo observed, that the right claimed by the 
Crown to tho bed and soil of navigable rivers is a right 
beloD^ng to tho Crown by the common Uw, and ex- 
tends and is applicable to the bed and soil of the river, 
Thamet, unless excluded by a stronger title in the De- 
fendants or some other : — that by the general rules of 
law, a title by prescription can only be made to in- 
corporeal hereditaments: — that the office of buliff or 
conservator (olaimed contempcmmeously by the De- 
fendants) implies an authority or del^ation conferred 
by wme other, and can scsroely, if at all, be made con- 
riitant with the oliim of ownership, which, to a large 
•llHt M 1*H^ would exfllude the notion of any each 
delegation or authority from another. l%ere is no aa- 
r iax saying, that the grantor of an office, the 
f which are performed upon land originally be« 
[ to the grantor, is not entitled to compel the 
ft of the office, clniming the land, to discover the 
I by which lie liua (as he allies), during his 

CASES IN chancery; ^: 

exercise of the (rf5oe» become entitled to the land or the ' 1849. 

property upon which the authority to grant the office ^^^^Jif^^ 

^Icpcnde, Attornbt. 



In the present case and on this occasion, without en- The 
teriog into an investigation of the general rights and SnKiiDoir' 
pKrogatives of the Crown, with respect to the coasts 
of the sea and to navigable rivers, I consider myself' 
boimd to presume, that the office of conservator or bailiff 
of the river ThameB must have been, and must be held 
to hsTe been, derived firom the Crown, and held under 
the Crown by its own grant, or commission, or by act 
of pidiament necessarily made with the concurrence of 
the Crown ; and that the power, estate, or authority, by 
or. oat of which the office of conservator or bailiff was. 
gnmted or derived, must be presumed to have reservedi 
or kept to itself all that was not granted with the office 

I am desirous to state this distinctly, in order that, if 
it be erroneous, the error may be the more easily de- 
tected and corrected. I think that the office of con- 
serratoTi being derived firom the Crown, must be held 
to be of a fiduciary nature, and that the Corporation 
moit be held to have had imposed upon it, not only the 
doty of faithfully executing the office of conservator, 
but of 80 exercising it as to protect and not encroach 
1^ the rights of the Crown. 

The offioe of conservator is, plainly, of such a nature, 
^^ b the performance of its proper duties, many and 
easy opportunities would occur, of doing more than a 
I'^ROw and strict performance of the duties required, 
^ that some degree of extension might be convenient 
^ iieefiil, and for that reason, would be more likely to 
he pemutted or acquiesced in for the occasion, than 



1849. complained of on behalf of the public, and therefore, in a 

^'^y^'^^ case like this, such acts as might seem to be acts of 

Attornky- ownership may have less probative force than they might 

Obnbbal Jj^^^ Jjj many other cases. 

of LwmoNl* ^^^ other grounds on which the Defendants claim to 
be protected from discovery do not appear to me to be 
of any weight ; and on a consideration of the whole case, 
having regard to the nature of the title claimed to the 
bed or soil of the river, to the circumstances under 
which it is claimed, and to the relation which subsisted 
between the Crown and the Corporation in respect of 
the conservancy, I am of opinion that the Defendants 
are not entitled to refuse the discovery which they are 
required to make, and that the exceptions to the Master^s 
report must be disallowed. 

I have come to this conclusion without reference to 
any peculiar right in the Crown to claim more discovery 
than can be claimed by one subject against another, and 
I give no opinion upon that point. 

After Mr. BetheU had concluded, a claim was made 
by the Crown to a right of reply. It stood for 
ailment, but was not persisted in. 

AArmed by Lord CotUnk^m, 1 7th December 1849. See 2 UaU 



SKIPPER r. KING. 3,„,^,„. 

Julif 8. 

TN 1816, David King executecl a voluntary deed, ^)^.^ 

which was made between him and three trustees, trustees, ujion 
whereby, after reciting that for malung some provision bJJ^JJj^ ^he 
for hb two daughters, Mrs. Skipper and Mrs. Hawkins, deed redted 

an inteiUoo 

and for thdr respective children, he had transferred a sum to maka some 
of 10,20021 navy five per cents, into the names of three provbi«i for 

if* and lier 

trustees, it was declared, that the trustees should stand children, and 
poaeessed of that sum, in trust for David King for J^^*^' ^^ 
life, and after his death, as to 6000/., in trust for Mrs. should hold 
Siifper for life, without power of anticipation ; and from J^^ fjfe^^J^ ^* 
and immediately after her decease, or doing any act upon her 
to incnmber her interest, that the trustees should stand ^ ^ ^^ 
possessed of it, '* upon trust, if there shall be but one to incumber 
child of the said Elizabeth Shipper then Jiving^ the said the trustees 
8tock to be an interest vested in Much child being a son "^^^^^^-^ 
^ daughter at his or her age of twenty-one years, and there should 
to be assigned, transferred, or paid to hun or her ac- J^^^^ylJJj^ 
^^^>i>dingly, if such age shall happen after the decease of the said stock 
^^ said EKzaheth Shipper ^ and if not, then immediately tcrestv«rtediii 
*fter her decease," or making any charge as aforesaid ; »uch child 
u.nd if there shall be two or more such children, then ^nj to be 

**^^ said stock to be assigned, transferred, or the pro- pa»;* accord- 
A^ , ^ ., 7 1 mgly, ifsuch 

^vi^ce thereof paid, to and amongst such two or more age should 
^l^dren, in equal shares and proportions, at their age ^^e ^tlnof 

or il., and if not, 


^^^ her death or making anv charge.'* And if there should be two or more sucn 

^^ildren, then the stock to be transferred amongst such children, in equal shares, at 

^e sge of twenty-one, if A, should be dead ; but if not, then immediately ader her 

decease or having made Nuch incumbrance. The deed contained clauses of survivor- 

a^) in case of aiiy child dying under twenty-one, as to ^ the share intended to be 

hereby provided far such child dying,** and alsochiuscs for maintenance, advancement* 

ttid sccruer. There were several children ; one attained twenty-one, and died in 

tbe li^ of il. s Held, that her representatives did not participate in the fund* 


,1848. or roflpcctiTe ages of twenty-one years, if ihe sud 
tT^'j'^ £lizabelk Skipper shall be then dead, or have incum- 
V. I>erc(l the same ; but if not, then immediately after her 

doccasc, or having made such incumbrance. 

" Provided always, that if there shall be more than 
ono child, for whom shares or proportions aie intended 
ito be hereby provided, as aforesaid, and any of them 
ahftll depart this life under the age of twen^-one years, 
then tke share intended to be hereby prooided/or «ugA 
chUd ao dying, or so much thereof as shall not have 
boon niisei] and paid or applied for the preferment or 
aih-anoQiucDt in the world of such cluU or children, in 
pu»|iaoou of the power and authori^ hereinafter for 
tluU puipooo contiuned, shall go, «oure and belong to 
the sun'tvor or sunivors and others and other of biu& 
oliUdreu, and ehall vost in and be aaogned, transfoied, 
kad.pkid to hint, her, or tbem (if more than ooe)^ in 
ctiual flhaiv* and proportions, at such ag^ and in sudi 
aud thu Mittc manner as is bcrmbeibre declaretl of or 
ixwccruiiig tu«> htT, or their original shore or ^tan& 

" .\iid in oa£« nwiv than one <^ tutk tldUreu afaaU 
de^wrt Ut» Uf\> under tbo a^ of twaity-one yean* thai, 
wikI m oA«t w it shall m haj^Kiw all and «my the 
turtivuig w ««3cnung dare or shaiw of sach child or 
•etuUna k> ilyinf of and in ^ said sock to be par- 
iAmnI with the and «hKk» or of <» in aach [wt them^ 
« Ml iM ham bMB dmk4 «b1 pud or appGad for 
ll^ In^ « tibMT fw An aaM <ir aJrinifKr m the 
VhML ty ivnw aal an fwrMMKV vf ^ [uwcr aaA 
llill llg t < w aBrf »rT iwi w gi. A«a ^ab^ &«■ th«e 

«■! |««i w &ai^ hv,. « 


them respectively at the ages aforesaid, and in the Same 1848. 

manner as is hereinbefore declared toudiing and con- ^uJ^na 

oeming his, her, or their original part or share, or parts v. 
or BhafeS, of aftid in the said stock*'^ 

The deed contained a proviso, empowering the trus* 
tees, after the death of Mrs. Skipper^ or. during her life, 
if she should so direct, ** to levy and raise any part or 
parts of the portion or portions intended to be hereby 
{nroTided for such children, as aforesaid, not exceeding 
in the whole, for any one child, oire third part or share 
^ Us, her, or their exi>ectant portion or portions;'* 
and for applying- the money for the advancement '' of 
such child," notwithstanding the portion or portions of 
rach eUM or chSfdren should not then have been vested 
or payable. 

And it empowered the tirustees, after the decease of 
y^Skipper^ out of the interest, to apply for the 
ittuntenance ^ of such child or children,'* in the mean- 
time, and until his, her, or their portion or portions 
iihoiild become payable, such yearly sum as the trustees 
flhoold thmk fit 


And in case there should be no child of the said 
'Mzahetk Skipper^ who should, by virtue of or under the 
tnistatheranbefore dedared, become entitled to the said 
^todcor sum' of 6000/., then the trustees were, '' after* 
^ deeease of the said Elizabeth Shipper , and such de- 
&Qlt and failure of issue as aforesaid," to stand pos- 
Kswd of the said stock, in trust for such person as 
Efizabetk Skipper should appoint, and in default of sucK 
^nKnntaient, upon tr\ist for the next of kin of the said 
^Hzabeih Skipper, according to the statute of distribu- 
tion of intestate V estates. 




1848. Mrs. SZ^iper hid ax duMren, — xkbdAj^ Loma Jame 

(the wife of Mr. BayUs) and fire others. 

LomUa Jamt attained twentr-one, and died in A^ 
mmher 1828, and lier husband took out administration 
to her. He became bankrupt, and lus interest Tested 
in his assignees. 

In 1S43, Mrs. SUpper^ the tenant for lifie, died, leay 
ing five children sonriTing her; and the qoestion in the 
cause vas, whether Mrs. B^ytu^ who had attuned 
twaitr-ooe, but had died in the life of the tenant for 
Efe, took a Tested interest in the fund. 

Mr. KimdtrAy and Mr. FUlEpt, tar the FIaintiflb» 
aigued, that the death of the mother was the period of 
Testily, and that those duldren who £ed in her lifetime 
did not take Tested intenests, ahhoQ^ thej migfat haTe 
attained twentj-one. That if there had been aercnl 
duUreo, and at Mn. S^ty^er^ death there flmild «be 
but one duld* « then liiii^^ then that such child 
alone would take under the £rs< danae, to the exdoaon 
of the refw^KioitaxiTes of thoste who were dead, and that 
** if there should be two or more of Ani dnldren* 
(meanxi^ duldren ^ then ETii^^ soch diildren akne 
would take. Ther CMnmented en the tenns of the 
chnses of ivrnrorsihqps aocmer, Tntinteminee, and the 
gift orer, and inasxod. that the anaimx^ twenty-one 
attaiiunfr that ase after the deish of the mother. 

DiCT £idi^:iD$hed this case from /Witf t. Amfleff(«)^ 
acnl dsied WltiafMt t. JiMvtu {h) 

Ms. TWrwr and Mr. MarhiB. for pirtaes m the 

£st3i^:aished this case of a volimtaiT deed 

' fi 
C*)»r4a.t9GL <^) 3 JUU « Or. f^tt. 


from a marriage settlement, and argaed, that, like a 1848. 
wiD, in this respect, it was to be more strictly construed l^'^^ ' 
than a marriage settlement : Tucker v. Harris, (a) v. 

Mr. BoHpell and Mr. Nalder, for the assignees of Mr* 
Biylis, argued, that there was an apparent intention of 
providing for all the children irrespective of their sur- 
viying their mother. That it had now been settled by 
a series of authorities, and in favour of the prindple 
of vestmg, that the presumed intention in favour of 
the children must prevail, unless the clearest intention 
shewed, throughout every clause in the settlement, that 
the provision to the children was to be contingent on 
their surviving their parent 

That in the leading case of Woodcock v. The Duke of 
J)oriet(b\ where a settlement contained a recital of its 
being the object of the parties to provide for the issue 
of the marriage, and a term was limited to trustees, 
upon trust, in case the husband and wife should, at the 
decease of the survivor, leave any child or children, to 
nuse a proper midntenance for such child or children 
until their coming of age, and then to raise 50002. to 
be paid to them equally at twenty-one ; or if there 
should be but one such child, then to such only child on 
ittaining twenty-one. It was held " upon the truth 
ttd honour of the case," that a child who attained 
twenty-one, and died in the lifetime of the mother, took 
» Teeted interest So, in Potois v. Burdett (c), lands 
were conveyed to trustees in fee, upon trust after the 
husband's death, in case he should kave one or more 
younger children, to raise portions for such children. 
Loid Eldan decided in favour of a claim of a younger 


(a) 5 ^mom, p. 538. (c) And see Perfect v. Lord 

(i) 3 Bn. C.C. 569. Curzon, 5 Madd. 442. 

Vol. XII. D 


1848. child, ifho attained twentj^met and died in the fitUher^s 

They commented at length on the terms of the deed, 
and inasted that Mn. B^Ss took a yeated interest 

Mr. Aw^phktt for the tiusteea. 

Mr. Kimieriky, in reply. 

Hie other cases dted were^ HmegrwH v. C€Brtitr{a)^ 
HMdJdm T. J7iM|/Wy (i), FiUferaU r. FiM{c), Bidt- 
JSM T. Bi€md{i), Omes t. JETciray (e), WatdnDo^tk t. 
fT^odis), Tarrts r. Frameo (A> Tammy t. IFmL (0 

TVMabtkk ^ iktBOLLB oomiiienlied at length on 
the tenns of the deed* and coondoed that the wofds 
"stteh children* most refer to the fonner antecedent 
espresBoi^ duld ** than firini^'^ and mean cUUrenltmig 
at the dealhy and that this constraction wms not Taned 
bj the sukk^uent pco\isM» or by the gift OTer. He 
vw thereibre of opinton that Mia. B^fSs^ who attained 
tv^entr-one, and died in the Efe of her mother, aeqnired 
nointensst in the tzun fimd. 

mmurt —far me iiahtirr <jt 

C98& Vt Ljfg Cart! 'whmi «Mt dh^ ;idt ^J^m t:^^ 

Vi> :2 Jmu^SSiS^ V~*> <JE:M>^•t^^<S*^- 




March 15. 

nPHIS was a eupplemental informatioii filed on the A school- 
death of a Defendant^ to effect the objects of the tained all the 

inforamtion in the Brentwood School case, (a) ""^"^ ®^ * 

^ ^ charity estate, 

after making 

The circumstanoes are shortly as foUows:— In 1557, J^y^J^ntsio 

Sir Anthony Browne obtained from the Crown a license the alms- 

to found and endow a grammar school at Brentwood, [he hearing, 

ooDfiisting of a master and two guardians, who were the Court 

created a corporation* The patronage was reserved to ^^s not enti- 

thc founder and his heirs, who had power to make *'^ *° ^° ^> 

, - , , and made a 

orders and constitutions. decree, refer- 

ring it to the 
Master to en- 

In 1558, Sir A. Browne and wife conveyed lands at quire what the 
CIdgweU to the corporation, for the maintenance of the Ix^^proVetty 

sehooL consisted of, 

and to settle 
a proper 

In 1565, Sir A. Browne, by his will, devised to the scheme for 

the manage- 

corporation a residence for the master of the school, ment of ^e 
and the parsonage of Dagenham, to the intent that they ^0*^^^^"^^ 
sboold find five poor folks in Southweald, to be named " for the ap- 
by him and wife, and after their deaths, by the owners ^le luture 
of the Manor of Southweald. rents and 

profits of the 
school." No 

In 1669, a suit was instituted in this Court, by some account was 

. 1 , . . r directed 

inhabitants of Southweald against Wystan Browne^ the against the 

i.^:- schoolmaster. 

"®"^ Held, that 

(«) The Mtorney-General v. The Master ^c. of Brentwood School, " future rents" 

queat to the decree, and the schoolmaster having died before the scheme had been 
settled, the Court, on a supplemental information, directed an account against his 
pemml representatives of the rents recdved subsequent to the decree. 

D 2 





ci Sir AmUumy^ to eptaUi^ tbe gnuit mod devise. 
The hdr, at first, made a hostile defence, bat, in 1570, 
a decree was made, by consent, directing a conTeyance 
by the heir to the corporation, and that statutes, ord- 
nances, and institutions of and for the sdraol and poor 
people should be made (none having hitherto been 
made) by the Bishop of London, the Dean of St. PauFs, 
and by fTystan Browne and his hdrs. 

In 1662, a body of statutes were accordingly made, 
under one of which, the sdiocdmaster was authorised to 
retain to his own use all the rents and profits of the 
lands of the corporation, otherwise than such as were 
thereby otherwise appointed, and the master was yearly 
to give to each of the poor alms-people, a robe of the 
value of lOf., and a stipend of AOs. yearly. TUs 
stipend, in 1803, had been increased to 102. annually. 

The right of patronage had become vested in 
taphrr Thomas Tower; and Charles Tower, who had 
become the Master, received the whole income, both 
of ChigweU and Dagenham, paying thereout the fixed 
stipend to the alms-people. 

In 1825, an information had been filed by the 
Attorney-General against the corporation, the patron, 
and master, allying the income of Dagenham to amount 
to 1000/. a year, and ChigweU AQOL a year, of which 
about 300/1 had been applied for the purposes of the 
diarity, and the remainder retained by the master : it 
prayed the establishment of the charity, and to have 
the income of Dagenhaniy or a proper portion, implied 
to the support of the alms-people or ey^pres. Charles 
Tower died in 1825, and Wittiam Tower, his successor, 
was brought before the Court by supplemental in- 




At the hearing in 18335 Sir John Leach was of 
opinion that the decree did not authorise any statutes 
otmtnuy to the intention of Sir A. Browne ; and that it 
was contrary to his intention that any part of the revenue 
of Dagenham should be applied for the benefit of the 
schoolmaster^ and that even if the statutes could be con- 
sidered in full force, they could not protect the master 
in the enjoyment of his present large sinecure income. 






By the decree (a), it was ordered, that it should be re- 
ferred to the Master in rotation to enquire and state to 
the Court, of what particulars the estates and property 
given and devised for the benefit and support of the 
gnunmar school by Sir Anthony Browne, and also of 
what particulars the property given and devised for the 
support of the almshouse charity in Southweald con- 
sisted. And it was thereby ordered, that the Master 
should settle and approve of a proper scheme for the 
nmoagement of the said estates and property re- 
spectively, and for the application of the future rents 
and profits thereof, and for the proper conduct and re- 
gulation of the said school And it was thereby ordered 
that the Master should state such scheme, with his 
opinion thereon, to the Court, the Court reserving to 
itself the consideration whether, for the purposes of 
effectuating such scheme, it might or not be necessary 
to apply for the dd of parliament. 

The Defendant W. Tower appealed from this decision, 
and the cause was heard by Lord Brougham on the 
27th of Jttittf and 1st of July 1834. lie postponed his 
judgment, to give the parties an opportunity of com- 
promising, to be confirmed, if necessary, by act of par- 
liament, and he left office (22nd of November 1834), 
without having delivered any judgment. 

(0) ] Myl. ^ K. 394. 

D 3 




Attorn KV< 



It was stated, in the present answer, that the appeal 
was again, on the 24th o£ March 1838, reheard by Lord 
Cottmham, who, on the 12th of February 1836, si^ 
gested, that the parties should take the judgment of Lord 
Bnmpkam thereon ; and, accordingly. Lord Brougham 
having consented to determine the matter of the said 
appeal, the solicitor for the then Attorney-General, and 
tho solicitor for the Defendants C. T. Tower and WiU 
littm Tim>rr attended before his Lordship on the 24th of 
MiiTck 1838, when his Lordship directed that each party 
should draw up and submit to him a statement and pro- 
po^ in writing ; and it was then arranged between the 
<gud sohcitOTk that eadi of them should, in the first 
instancy send his draft rtatement and pn^poaal to the 
others in order that die two statemeatt should oor- 
re^Mid as &r as the parties could i^gree. 

That within iwo dars after the aaiid attendance 
beifv^r^ Lord gr»iwWi> the soficitor fer the aid C 7. 
T^mrr »nd lllfMM 7W«r ^smiit a diaft ot a statement 
and piof^'e^il oci their behah" to the jwJkitor £ar the 
thea Attixiiey«\jit»effaL but tknt the said dnft hsd 
ttKwr bi^cn retunseiL nor hesd anr pii'ifrm er pfVfMHal 
oci hdbtjdt oc the AttiXQerAieixiai yah ho n i eh pcxMBiaed) 
Kr^m jiHit tv> the soScbor fcr the snad C T. Ti 

"bse Mjft$c<rr actaf :& <i(mn«f cvwct« lEnfisB^ tke 
chfsrl^T pccMRT^ w h e i ieb y it a^poHK^ tkit tfe reanl 
^* ilW«mir w;k :i:s$i4^ ^aii ^^ Awrdtiri iOMk. : bat 
W 3iai w« a^cccvv^i <£ jsit jcomok^ Bcdm tike rcfioit 

TmnfT^ ike Ifttfser^ «ed. jni th» juyriiinMnsii 



schoolmaster had retained the whole rents up to his 
death) and the report^ and it sought to make the repre- 
sentative of FFUUam Tower answerable for the rents of 
Dagenham received by him. 

The personal representative of William Tower, by 
her answer, submitted, that no account of the sums re- 
ceived by the said William Tower on account of the 
income of the said estates having been prayed for by 
the original and supplemental informationsi and the 
decree made on the hearing of the said original and 
supplemental informations containing no direction for 
the taking of such account against the said WiUiam 
Tower, no such accounts as were in the said information 
of revivor and supplement prayed for against the estate 
of the said William Tower ought now to be directed to 




Hie supplemental information now came on fot 

Sir J. RamiUy (Solicitor-General), Mr. Turner, and 
Mr. BlufU, in support of the information. 

Jdx.Uoyd and 'Mr.Fane, for the representatives of 
the late schoolmaster. The decree in the original suit 
has directed no account whatever against WiUiam Tower, 
and contains no declaration of right against him. This 
supplemental information, which seeks so materially to 
alter the rights of the parties under that decree, is ir* 
regular. It is, in its nature, a bill of review, and, 
bdng filed without leave, ought to be dismissed ; Hod- 
loiiv. Ball (a), Redesdale PL (b), Totdmin v. Coplan(L{c) 


(a) 1 PhUUps, 177. 
(A) P. 91. (4th ed.) 

(c) 4 Hare, 41. ; and see also 
Davii V. Bluckf 6 Beav, 393. 



1849. Mr. WalpoU and Mr. Lovat, for the patron. 






Mr. Jtaupell, for the present schoolmaster. 
Sir t7. Romilly, in reply. 

The Master of the Rolls. 

My only di£5culty is about the form. I cannot say 
that I have the smallest doubt that that word ^' future ^ 
means future to the decree, and nothing else ; and that 
is the whole question. The question is on the mere 
matter of form, whether there ought to be a decree for 
an account now, and of that I doubt ; but if this were 
on further directions, with all I have heard of it to*day, 
I should declare my opinion that the word '' future " 
meant future to the decree ; and I think it is nothing 
less than absurd to suppose that any person could put 
that word " future ^ into the decree with any other in- 
tention than that it meant future to that time. Past 
future or some other future seems to be out of the 
question. But whether the Attomey-Greneral is entitled 
to any account now, I do not know. If my construction 
is wrong it can be easily altered in the proper way, and 
if the decree is wrong in using the word " future," as 
future from some future time, that can be altered, too, 
on rehearing. As to the allowances, the Attorney- 
General will allow every thing properly expended. I 
shall be surprised if there b any difficulty about it. 

J%e SoUcitor-GeneraL Mr, Tower would be allowed 
every thmg pud in that respect 

The Master of the Rolls. 

I think that, as against Mr. Totcer^ it is a hard case. 
In addition to the hardship imposed on him by the 
original decree, there are these two circumstances: — 




He has endeavoared to procure an alteration of the 
decree by appeal, and has been disappointed, apparently 
not from the want of any effort on his own part to ob- 
tain it I think that is much to be regretted ; I think 
it deserving the serious consideration of the Attorney- 
General in what way any decree or order should be pro- 
secuted against him, and I feel perfect confidence that 
nothing will be done but what is right and just in such 






What is the claim under thb decree ? At the time 
the decree was pronounced, the Master of the Rolls 
declared his opinion that, under the circumstances, 
Mr. WilUam Tower was not entitled to apply to his 
own use the whole revenues of these charities. It was 
Tery distinctly declared, but in consequence of the hard- 
Bhtp of his situation, it was oopsidered that he ought not 
to be called on for any past account ; and, therefore, up 
to the time of the hearing he was exonerated from all 
looount Accordmgly, the decree contains no direction 
to take any account ; but the same decree refers it to 
the Master to approve of a scheme for the management 
of the estates and property resjiectively, and for the ap- 
plication of the future rents and profits thereof, and for 
the proper conduct and regulation of the said school. 

I confess I cannot bring myself to believe, that any 
one can seriously suppose, that when there was to be 
& scheme for the application of the ^^ future rents," it 
did not mean future with respect to the time when 
the Judge was pronouncing his decision. I cannot be- 
heve that it could have been meant, that there should 
luite been a reference to the Master to approve of a 
scheme for the management of this property, and the 
^plication of the future rents after that scheme should 
bave been settled, and nothing done as to the rents in 








tho mean time. I oonsider that this does mean the ap- 
plication of the future rents received with reference to 
the time of the decree ; and, though it is not expressly 
said, yet there is a manifest implication, that the whole 
of the future rents were to be subject to the charitable 

This gentleman, being discontented with the decree, 
though he has obtained a rehearing, has not, unfortu- 
nately, obtained a decision. It is greatly to be regretted, 
but the decree now stands. 

Unfortunately, years have passed, and these matters 
kaTO not come to a really practical ooncfaisioii befon 
the Master* The whole nents hare beea receiTcd by 
thk genlkman, and applied, as it is now said, in some 
respects at k^al, for ekaiitable purposes, ndi as met 
with the approbatko of the Jwigt al tke time Ae decree 
was madiN and wiih the cooseiit of Her Mi^esly^i Ai* 
t^fney-^GiNienJL by whom thb decree was proaeciited. 
If he has not foir alkwaaee made for every thiag of 
Omi kiML I thmk he will kaw the meaw of R^ma m 
ihb CVMUt. I kaw w>t d^^ kiHt Ambt ^kaa aU ^r 
alfew«ace» wiK be mediew 

tkir best vvtasadkentioa I eaat ^rne tke mtcter^ I 
tke AtHNrasev^innKral b eiis£tkd ti^ kave 
tae<^ nfiics^ w^4t dav« ;Kcrtae«i ^isiew aal k«ve been 
c^mid :$w:^ tke ^mce gc tke liect^e^ nmt^mr m ^e 
ye rica i i l ;^ipi:^»tiiraeiBmr ;iil pcmtr :iilhmam»$ 
!M^ m oami dfifwiK ^' tk» »Trif>r ^ 

tan wMMi or 




HUMBLE r. HUMBLE. March 20. 

TN this case, a question was raised, whether^ in paying A purchaser 
his purchase money and interest into Court, the chai^moneyT 

purchaser was entitled to deduct the amount of the with interest, 
• I* ii#vi*/\ into Court* 

income tax on the mterest under the 102nd section (a), is not to de- 

which is to the following effect : — ^"ct the in- 

° come tax 

" And be it enacted, that upon all annuities, yearly 
interest of money, or other annual payments, &c. either 
as a charge on any property " &c. '^ or as a personal 
debt or obligation by virtue of any contract, or whether 
the same shall be received and payable half-yearly, or 
at any shorter or more distant periods, there shall be 
charged for every 205. of the annual amount thereof 
the sum of 7d!." &c &c«, '^ and the 'person so liable to 
make such annual payment," &c ^^ shall be authorised 
to deduct out of such annual payment at the rate of 
Id, for every 20s. of the amount thereof, and the 
person to whom such payment liable to deduction is to 
be made shall allow such deduction." 

Mr. Spenee, Mr. Teed, and Mr. Riddell, appeared for 
different parties. 

Hohroyd v. fFyatt (b) was cited. 

The Master of the Bolls decided against the de- 

(a) 5 & 6 VicL c, 35. 984. ; Dmmng v. Henderson^ 19 

(A) I De G.^S, 125. ; and L. J. (C%.) 273. 
Me Dawton r. Dmoton^ 1 1 Jw, 

payable on 
the interest. 




Though a ^T^HE supplemental bill in this case sought a dis- 

PlHintiffcan- i covery of the returns made by the Defendant to 
not conapei a •^ ^ 

Defendant to the Commissioners of property tax. The Plaintiff's 

covenTof his object being to shew that the Defendant had repre- 

returns for sented the profits of his business to be less than what he 

still a stated ^^ stated to the Plaintiff on purchasing it. On a former 

"*«"^ (■! «^" occasion^ a demurrer to the discovery sought by this bill 

misrepresent- was allowed (a) ; but the Court gave liberty to amend 
ation of the ^^^ ^ilL 
value of his 
business) that 

he made such The Plaintiff amended his bill by striking out the 

returns, is not , . . . • , , 

impertinent, mterrogatones, but rctaimng the statements as to tlie 

Defendant's return of his income to the Commissioners. 

The Defendant took exceptions to these statements for 

impertinence^ which the Master overruled, and the De« 

fendant then took exceptions to the Master's report, 

which now came on for argument 

Mr. Wright^ for the Defendant, in support of the 

It is contrary to the policy of the act (A), to allow a 
disclosure of the returns of a person's income. The 
Court would not receive evidence on the subject, and 
the statement is therefore impertinent, and ought not 
to remain on the record ; for " non debet alligari quod 
probatum non relevcUy^ Read v. Hambey{c). The 
Court said on the demurrer (a), that if evidence were 
produced of these facts at the bearing it would not be 


(a) \\Bcav.2m. (c) \Ch.Ca.U. 

(6) 5&6Kic/.c.35. 


[The Master of the Bolls. I decided that the 1849. 

Plaintiff was not entitled to the discovery of these ZT*^^^^^ 
_ 1 Tx /. , * 1 11 Mitchell 

matters from the Defendant, and not that he was not v. 

at liberty to prove the fact aliunde.'] Kobckee 

That would be impossible, since it could only be 
proved by unlawful means, through the wrongful dis- 
closure of a clerk, collector or commissioner, contrary to 
hia plain duty. 

[The Masteb of the SoLLS. The Plaintiff might 
produce some evidence, but whether it would be re- 
ceivable is not now to be determined.] 

Mr. Turner and Mr. J. Anderson^ contra. The De- 
fendant has confused two distinct things : — the right 
to discovery, and the right of alleging material facts to 
be proved, if possible, at the hearing. It was decided, 
on the demurrer, that the Plaintiff had no right to the 
diacovery from the Defendant, and nothing more. It is 
ponible that some legitimate evidence may be produced 
of the facts allied. In The King v. Clarke (a), the 
declarations of a Defendant to Commissioners as to his 
income were received in evidence to prove that he was 
disqualified to kill game. 

Mr. Wright^ in reply. 

The Master oftlie Rolls overruled the exceptions, 
And, upon the application of the Defendant, gave him 
further time to answer. 

(a) 8 Term Rep. 220. 



.4.^. bound C[rR CLIFTON WINTRINGHAM, on the mar- 

the death of executed a bond to trustees, to secure the payment, on 

S^hSrind ^^^ ^^*^ ^^ *^® survivor of himself and Lady Win- 
wife, on cer- trinffham, of 16,000£ The sum was to be held on trust 
under which ^^^ ^^' ^°^ MvB, Clifton Wheats for their respective 

on a contin- lives, and subject to certain trusts for their children 

gency, the / ^ • \ i/v»n- i 

amount was to (which never took eftect), m trust to pay the same to 

MlT^^* i/*'b" ^^'^ Cl\fion Wintringham, his executors &c. 

his will, gave 

if ft sh^Sd ' ^^^ Clifton Wintrinffham, by his will, after disposing 

revert, to of his residuary estate, referred to the bond thus given 

trust to pay ^7 ^^^ > ^^^ ^® directed, in case " the sum of money 

thereout iq bond as aforesaid, or any part thereof, should revert 

C.,' and three ^^^^ ^^^ residuum of his estate, at any time, pursuant 

^^Svf '^ ^h ^^ ^^^ several limitations expressed in the said marriage 

charities, and settlement,^ then he gave the same trustees the said 

in**^8umTf "' ®^™ ^^ 16,000/., on trust to pay, or cause to be pwd 

500/." to the " thereout, the sum of 14,000/. of lawful money of 

Hospital!^ His ^^^^^ Britain, unto Clifton Loscombe, and the heirs 

wife survived male of his body " &c. ; " and with respect to the sum 

years, and ^^ 1000/., part of the said sum of 16,000/., he be- 

the sum of qucathed 500/. to the Marine Society, and 500L to the 

invested in Society for the increase and encouragement of good 

25,702/. 3 per servants. And with respect to the further sum of 

cents. In ^ ^ 

1848, the con- 500/., part of the said sum of 16,000/.,'' he gave the 
\Tned^ wh n" ^^^ ^^ Magdalen Hospital; and he proceeded : " I give 
the fund re- and bequeath the remaining sum of 500/., part of the 

verted, and « . , 

amounted to aforesaid 

considerably more than 16,000/. Held, that the legatees were entitled to money 
legacies only, and not to the whole fund. 


aforeadd sum of 16^000/1, to the goyernors &o. of the 
FmdHnff HoipitaV 

Sir Clifton Winiringham died in 1794, and Lady 
Wxntringham in 1805. In 1807, 25,702/. 3 per cents., 
the then value of 16,000/. sterling, was set apart by the 
Court, and carried to a separate account, to answer the 
debt due on bond. The income was paid to Mrs. Wheat j 
the surviving tenant for life ; and she having died in 
Nocewiber 1848, this sum of stock " reverted *' to the 
estate of Sir Clifton Wintringhamy and became subject 
to the cBspodtion contained in his will. 

A petition was now presented by ClifUm Lotcombe, 
praying payment to him of fourteen-sixteenths of the 
25,702/i 3 per cents., and of the remaining two-six- 
teenths to the several charities. 







The question was, whether the legatees were entitled 
to 16,000/. sterling, or to the whole fund, which in 
value was considerably more. 

Mr. RoupeUy in support of the petition. The effect of 
the will is to give the whole produce of the bond and its 
fniit. The testator deals with the whole in portions, 
and expressly gives the last 500/. as ** the remaining 
8ttm," contemplating, therefore, the disposal of the whole. 
The case is similar to dispositions of policies, which 
cany with them any bonus. Parkes v. Bott (a). 

Mr. Turner and Mr. Baggallayy for the charities. 
That this is a gift of the whole fund, and of the pro- 
duce of it, is evident from the use of the words " re- 
maining sum of 500/." The legatees take the whole 
amount of stock between them, in the relative propor- 

(a) 9 Smom^ 388. ; and see Courtney v. Ferrerty 1 Smeni, 137. 







tions of the sums named. The investment was made 
at their risk, and, if the funds had fallen, they must 
have borne the loss ; conversely, they must be entitled 
to any benefit arbing from the investment. 


\_The Master of the Rolls. Did the testator 
direct the investment?] No: that was provided for 
by the settlement, to which he was a party. In Page 
V. Leapinffwell (a), the testator directed an estate to be 
sold, but not for less than 10,0002i ; he gave legacies 
out of the monies amounting to 7800/., and *^ the over- 
plus monies " to A. B. The estate was sold for less than 
7000/., and it was held that all, including A. B., who 
was held entitled to his share, abated in proportion. 

The testator intended to dispose of the whole, for he 
knew that a long interval must elapse before the hap- 
pening of the contingency on which it was to •* revert," 
during which an investment was necessary, which would 
subject the fund to possible variations in value. 

Harvey v. Cooke (b) was also cited. 

Mr. Calvert, contri, was not called on by the Court. 

T/ie Master of the Rolls. 

The claim is made not upon the construction of 
the settlement, or on the rights under it ; not under 
any investment of the testator himself, nor in conse- 
quence of this sum being severed by the act of this 
Court, and appropriated to the payment of these 
legacies, which would have been of the utmost import- 
ance : but the claim is founded on the construction of 
the testator's will. It is said, that at the time the will 
was made, and at the death of the testator, it was his 


(a) ]8fV#.463. 

(b) 4 Ruis. 34. 


dear Intention to dispose of the whole investment. I can 
neither discover a clear intention, nor a glimpse of an j 
inch intention. 

The testator became a debtor for the snm of I69OOO/., 
which was to be dealt with according to the trusts of 
the settlement. It was to be invested when raised, but 
it was not raised in bis lifetime: it remained a debt 
doe from the testator at his death ; and whether it could 
be applied in the manner directed by his will, depended 
on a contingency which did not cease until November 







The testator, at the time of making his will, knowing 
this was a debt due from him, takes notice of it as 
Bodi, and of the contbgency on which he would become 
owner; uid in that event, he contemplated becoming 
owner of a sum of money charged on his estate, and 
which would be a debt due from him at his death. I 
un surprised that a man's debt is to be treated as an 
investment: I can find nothing of the kind; I con- 
sider it as a debt due from him, payable on certain 
eyents. There being no investment, no fund capable 
of improvement, and no appropriation whatever, he 
nukes this provision : he gives these sums of money to 
be applied in a particular way, out of a particular sum 
of money charged on hb estate. I cannot make out 
& similarity to any of the cases cited : I think he 
mtended these legacies to be paid in money, on the 
^>pening of the contingency, and that these sums only 
became payable; consequently, the surplus falls into 
^e residue of the testator's estate. 

NoTi. — See Xorrii v. Harruon^ 2 Mad. 268.; Matthews v. 
'^«Hir, 1 Rmsm. 4> M. 397. ; StiM ▼. FUtgerald^ 3 Fes, S^ B.2.i 
^«si T. Bond, 2 Kceny 136. 

Vol. XJL E 




April 30. 


If a Defendant 
puts in an 
answer to an 

T^Y this information, the Crown ddimed, by royal 
-^^ prerogative, the soil and mines imder the sea shore 
which is ac- ' of an estuary, or arm of the sea, called the Bury River, 

in Carmarthenshire. It alleged that the Defendants 
had worked the coal mines under such shore, by meand 
of a shaft in the adjoining lands. 

quiesced in 
by the Plain* 
tiff, and the 
bill is after* 
leaving the 
and the cor* 

The information prayed a declaration of the rights of 
the Crown : — that the boundaried might be distin- 
statement un* guished, and that the Defendants might account for 

chained, but 
varying an 
which alters 
the meaning 
of such state- 
ment, the 
Plaintiff is 
not entitled 
to a new 
answer to 
such inter- 
rogatory, un- 
less he spe- 

the coal improperly taken. 

The sixth interrogatory required the Defendants to 
set forth, according to their " knowledge, remembrance, 
information, and belief, whether they had not, by** 
means of the pit or shaft sunk in the land of the 
Defendant William Chambers, or by means of some 
other and what shaft or pit &c, lately and when first, 
opened and worked veins or seams of coal and culm, or 
it^'b r®^^^^ 0^® of them, lying under the said sea share belonging to 
fendantwho Her Majesty, and whether they had not raised and 

the new^ "* ^"S "P ^^g^» ^^ ^^^^ ^^^ what quantities of coal or 
meaning of culm, from parts of the said veins or seams which lay 

the statement ^ 

by professing under 

to answer it, must do so fully. 

An answer may be verbally full, but technically insufficient, as where a De- 
mdaDt sets up his ignorance of facts as to which he has plainly the means of ob- 
taimng the information required. 

The answer of persons engaged in working a coal mine which stated, that they 
could not, as to their belief or otherwise, set forth the mode of working, held in- 
suffident ; the Court assuming, that they must have workmen under their control 
from whom such information might be derived, and which the Defendants were 
bound to afford. 


under tke Maid sea shore between high and low water 1849. 

marki and sold or disposed of the same for various largOy attornet- 

or 0ome and what, sums of money^ or how otherwise. Genbral 

The seven Defendants put in an answer, whereby, 
in answer to the sixth interrogatory , they said, they did 
not know, and could not set forth as to their informa- 
tioD, belief or otherwise, whether those Defendants had, 
''by nieanB of the pit " &c &c. (following the terma of 
tiis mterrogatory.) 

No exceptions were taken to this answer. The in- 
fonnation was afterwards amended, and the extent of 
the title of the Crown to the sea shore was changed, and 
the meaning of the expression '^ the said sea shore *' was 
varied. The dxth interrogatory was left unaltered, and 
the seventh interrogatory was struck out and replaced 
by another, which^ amongst other things, asked as fol- 
lows : ^ ** whether it is not true, that even now, a 
oondderable portion of such workings lies under the 
sea shore, which is to the seaward of the present high 
water mark at ordinary neap tides." 

To the 6th and 7th interrogatories in the amended bill 
the Defendants answered as follows : — 

And Defendants do not know, and cannot set forth# 
<r< to their belief or otherwise^ whether or not Defend- 
ttits (who are members or partners of the Fool Colliery 
Company) have, by means of the pit or shaft sunk on 
the land of the Defendant WiUiam Chambers^ or by 
ineans of any other shaft or pit " &c, ** lately, or at 
tty time first, opened and worked the veins or seams 
of coal and culm, or any or either of them, alleged in 
^ information to be lying under the sea shore, in 
^ information atated to belong to Her Majesty; or 

E 2 save 



1849. save as herein appears, whether or not they have raised 
• TjT^^r^. ^^^ d^ ^P ^rge, or some and what, quantities of coal 
Obnkral and culm from such parts of the veins or seams which 
RsBs. ^^^ ^^ ^^^ information stated to lie imder the sea 
shore between high and low water mark, or sold or dis- 
posed of the same for yarious large, or some and what, 
sums of money, or how otherwise. 

" And these Defendants say, they do not know and 
cannot set forth, as to their belief or otherwise, whether 
or not it is also true, that eyen now, a considerable 
portion of such workings as are alleged in the informa- 
tion to be carried on, lies under the sea shore which is 
to the seaward of the present high water mark, at 
ordinary neap tides." 

The Attorney 'General, Insisting that th^se two in- 
terrogatories had not been answered, took exceptions to 
the answer; and the Master haying oyer-ruled them, 
the case was brought before the Court, upon appeal 
from his judgment. 

Sir J. Romilly (Solicitor-Greneral), Mr. Turner, and 
Mr. Maule, in support of the exceptions, argued, that 
the answer was insufficient ; for the Defendants, who 
had the power of obtaining the information sought, could 
not be allowed to escape the obligation of ^ving a dis- 
covery, by the mere statement that they were ignorant. 
That they were bound to obtain from their servants and 
workmen, who were under their control, the informa- 
tion asked, and to answer upon '^ their information, as 
well as on their knowledge and belief." Earl of Glen^ 
gall V. Frazer (a) and Taylor v. Rundell (A) were cited. 


(«) 2 Hart, 101. Ph. 104.; 1 PhUUpt, 222.; md 

(rt 11 afwoftf, 391. \ Cr. ^ I Y. i C. (C. C.) 128. 



Mr. Malins and Mr. Renshaw, for the Defendants^ 
ai^cd, that the Informant,' having taken no exception Q^^g^"^* 
to the first answer as to the sixth interrogatory, could ^ v. 
not now object to the sufficiency of the answer to it, 
Ovey v. Leigkton (a), in which case, it was held, that a 
Plaintiff haying waived an objection to the insufficiency 
of the answer to the original bill, could not recur to it 
oa the answer to the amended bill. 

That the Defendants, who had pledged their oaths to 
thdr ignorance of the facts interrogated, had sufficiently 
answered the bill, and, that not being expressly required 
80 to do by the bill, they were not bound to seek in« 
formation from other sources equally open to the In- 
fonnant That the answer on knowledge and belief 
induded all knowledge on information; and that in 
practice, this form was imiversally adopted in answer* 

Sir John BamiUy in reply. This case differs from 
Ovey V. Leiffhton, because the antecedent referred to in 
the sixth interrogatory has been changed by the amend- 
ment; and here the Defendants have acquiesced in the 
new meaning. 

The Master of the Eolls. 

With regard to the first exception, the principle on 
which it must be decided is this : — If a Plaintiff makes 
a certain statement in his ori^nal bill, and founds an 
iiiterrogatory on it, which is answered by the Defend- 
^t, and the answer is acquiesced in and submitted to 
hy the Plaintiff, and afterwards, the Plaintiff, by 
unendment, changes the antecedents or facts on which 
^ statement and question are founded, I am of opinion 


(a) 2 Shn. 4* Si. 234. 
JE 3 


1849. that the answer to that interrogatory, having been 
A~^^^ acquiesced in by the Plaintiff, must afterwards be held 
General to be sufficient. An interrogatory must be founded 
I^Bs ^pon a preceding statement or allegation, which gene- 
rally or very oflteii depends on something antecedent. 
If the antecedent be changed ever so much, I appre- 
hend that if the statement and the interrogatory remain 
unchanged, the former answer put in to it and acquiesced 
in by the Plaintiff must be taken to be sufficient. 

But although a Plaintiff is not, under such circum- 
stances, entitled to have a new answer to the old inter- 
rogatory, unless he specially intimates to the Defendant 
in the amended bill that he requires a new answer, as 
might have been very easily done in this case, yet if 
the Defendant, on his part, acquiesces in the new mean- 
ing of the relative expression contained in the statement 
and interrogatory, and admits himself under the obli- 
gation of putting in a new answer to it, and does so 
accordingly, you must take the matter altogether, and 
as if there had been no acquiescence on the part of the 
Plaintiff in the sufficiency, the Defendant himself not 
relying on it 

The question then comes to this : whether the cir- 
cumstances of this case are such, as to induce the Court 
to say, that the answer, though verbally a full and suffi- 
cient answer, is really and technically so. I do not find 
that these Defendants say that they have been unable to 
get information from their workmen. They are requix'ed 
to answer " as to their knowledge, remembrance, m- 
farmation, and belief," yet they content themselves with 
saying, that they do not know, and cannot set forth as 
to their belief, or otherwise, &c. &c. I quite agree with 
Mr. Malins as to the ordinary effect of the words " be- 
lief or otherwise ; "yet it is singular, that in a case where 



the knowledge must naturallj be deriyed from the 1849. 
persons employed by them^ the Defendants have thought Att^rmw. 
fit to omit the expression " information.^^ I do not General 
recollect any case exactly like this ; but one might very Rbbs. 
well conceive many cases, in which the Court would not 
be satisfied with such an answer/ wh6re« though it might 
be perfectly true that the Defendants were ignorant of 
the facts, yet that they must^ of necessity, have the in- 
formation within their reach, and had only to ask for it. 

These gentlemen are engaged in working a coal mine 
of oonsidexBble extent They must, of necessity (I do 
Qot think the matter rests on conjecture), have work-, 
men and other persons in their employ engaged in 
carrying on these works, and under their influence 
and control, from whom every information respecting. . 
the coal working might be obtained. The question then 
really is, whether, in such a case as this, it is necessary 
that the means of obtaining the information should be 
indicated by the answer, as was the case in both the 
authorities cited ; or whether the means of information 
must not, necessarily, be presumed to be within th6 
bowledge of the Defendants ? I think that this is a 
matter of clear presumption, for every man of ordinary 
Qoderstanding must know, that there must be persons 
from whom the information required might have been 
derived. J must presume that this mine is conducted 
in the ordinary way in which mines. are conducted; and 
I cannot divest myself of the belief that these gentle- 
men have workmen and agents from whom they might, 
without difficulty, have got the information required. 

For these reasons I think I must hold that these ex- 
ceptions ought to be allowed. 

E 4 



Dec. In re CAWTHOENE. 

Where an TVf ^^- ^^ WTHORNE bequeathed a sum of 1000/. 
cxecutor^pi^ iTJ. ^ trustees, for the separate use of Mrs. Harwood 
Court, under for life, with remainder to her children. The testatrix 
Indemnity ^^®^ ^^ 1838, and the legatee encumbered her interest 
Act (10 & to several persons. 

1 1 Vict. c. 96.) * 

his COStB of 

paying it in Jq jj^/y 1848, Vesey T.Dawson, the sole executor, 

borne by the piud the legacy into Court, under the Trustee Indemnity 
SSIc of^**^ Act, 10 & 11 Vict. c. 96. A petition was now presented 
pying it out by Mrs. Hare, an incumbrancer, for the investment of 
by tne legatee. ^^ fund, and an order for payment of the dividends. 

Mr. Beak, in support of the petition. 

Mr. Greene, Mr. Turner, and Mr. Thomas Parker, 
junior, for the Respondents. , 

T/ie Masteb of the EoLLS sidd, that the executor 
having pud the money into Court was bound to attend 
and assist the Court in its dbtribution ; that he was 
entitled to his costs of this application, as between so- 
licitor and client, out of the fund ; but that the costs of 
paying the money into Court must be borne by the tes- 
tatrix's estate, (a). 

(a) Reg. Lib. I8i8 A. fo 1047. 




TN 1521, a freehold garden in Norwich^ containing Lease of 

about half an acre, was devised to charitable uses for for 999 years, 
the benefit of the parish of St Andrew'^. !"^ject to a ' 

^ fixed rent of : 

]0/. and a 

By an indenture dated in 1699, certain parties, de- f^^^Toi?, 

. •' ' ^ *^ ' lay out 300/. 

Bcribed as trustees on behalf of the parish and the in building, 
churchwardens, "by and with the consent and appro- i^^^l"^^ 
bation of the parishioners of the said parish, in con- an allowance 
eideration that John Copping had undertaken to lay out \^„ refused. * 
the sum of 300i in building upon the said premises," .^n a^icn- 
and in consideration of the yearly rent thereby reserved, charity pro- 
denused " all that their orchard and garden ground, with ^^y {""y ^, 
the houses, edifices, and buildings thereupon built" &c. onux of proof ' 
for the term of 1000 years, at the yearly rent of 10/., *^°J^^® 
''for the use, benefit, and sustentation of the said pa^ 
riah." Copping thereby coyenanted to build a house or 
houses upon the said premises, and expend about such 
buil^g 3002., and keep the same in repair during the 

The property had previously been let for 8/. per 


By mesne assignments, the lease became, in 1810, 
vested in Robberds, who sold the premises in different 
portions* He sold a part to Smith for the residue 
of the term, fixing and reserving 1/. a» the appor- 
tioned part of the ground rent on the said premises. 
In 1830, Smith, in consideration of 200/., assigned 
this part of the premises to the Defendant Pilgrim for 








the residue of the term of 1000 years, subject to the 
apportioned rent o( IL 

This information^ insisting that the lease of 1699 was 
improvident, prayed that it might be set aside as agunst 
the Defendants. The information stated, that ^^ within 
a few years, various messuages and buildings had been 
erected " on the charity estates, and it alleged, that the 
whole property was now worth nearly 200t a year; 
but this fact was not proved. 

The portion of the property possessed by Pilgrim 
consisted of a pawnbroker's shop, let at a gross rent of 
8/. 8«., but producing 6/. clear on an average. 

The value of the whole property, supposing it not to 
be built on, and let as a garden ground, was proved to 
be from %L to 9L a year. 

By his answer. Pilgrim sdd he purchased the lease 
bond fidsy and with no other knowledge, belief, or sus- 
picion that the said premises were part of the charity 
estate, than what was disclosed by the statement of the 
deed of 1699, in the abstract of title thereto delivered 
to him. 

Mr. Turner and Mr. Rogersy in support of the in- 
formation. The lease of 1699 being for a term of 999 
years is invalid ; Attorney- General v. Green, {a) Such 
a lease amounts to an alienation of the property ; At- 
tomey- General v. Backhouse (b); and it is incumbent 
on those who attempt to support such a transaction, to 
shew that it was beneficial to the charity; Attorney^ 


(a) 6 Ves. p. 432. 

(b) 17 Km. p. 291. 



General v. Br^tingham. (a) The Defendant most be 
Iield to have notice of the facts appearing upon the 
leue which he purchased, and which shew its invalidity: 
JUanuy'Gmiiral y. Porgeter. {b) 

Mr. BaggaJlay for the churchwardens and trustees. 





Mr. BaupeU and Mr. JEhnsley, for Pilgrim. First» 
notice of a lease being a lease of charity property does 
not carry with it notice of its invalidity. Secondly, 
a lease of charity property will not be set aside as of 
course, merely on account of the extent of the term 
granted^ and there is no positive rule against alien- 
stion: Attorney^General v. Warren, (c) In the case of 
Tlu Attomey^General v. Hungerford {d)^ a lease of 
charity lands renewable for ever, at a fixed rent, was 
supported by the House of Lords. So in The Au 
tomey- General \, The South Sea Company {e)^ a lease 
of charity property for 999 years was upheld by this 
Court, the arrangement appearing free from fraud, 
and for the benefit of the charity. Here the value of 
the land itself has not increased ; but the increase is 
attributable to the outlay made on the faith of the 
lease. Thirdly, upon the face of this lease, it ap- 
pears to have been granted, on full consideration, by 
the churchwardens, with the authority of the parish- 
ioners, who were the parties entitled to the benefit of 
it, and therefore it ought not to be set aside after 
Buch concurrence and long subsequent acquiescence. 
Sir John Leach, in a case somewhat similar, observed, 
it is not " the office of a court of equity, at the distance 
of more than two centuries, to undo an arrangement 


(a) 3 Beav, p. 95. 

(b) 6Bcav. 150. 

(c) 2 SuHxn. 291. 

(d) 2 a <J Fm. 357. ; and 8 
Btigh, 437. 

(e) 4 Beat 453. 







which was perfectly fair at the time between the con- 
tracting parties, and was sanctioned with the full ap- 
probation of the executor of the founder, and has become 
unequal only from accidents arising out of the course of 
time:" Attomey-General v. Pembroke Hall, (a) 

Mr. Rogers^ in reply, cited SugderCs House of Lords, 
535., Attorney- General v. Foord(b)y The Church- 
wardens of Deptford v. Sketchley (c), and 59 G. 3. c. 12, 
s. 17. 

The Master of the Bolls. 

Having regard to the case of The Attorney-General 
V. Green {d)y and ta the subsequent cases, I think 
that this lease cannot be maintained. It is a lease of 
charity land for 999 years, at a fixed rent of 102., with 
a covenant to lay out 300/. in building. That is reaUy 
all there is in this case. 

The law, as at present understood, allows the 
alienation of charity land, if made under circumstances 
which shew that it is fairly made, and for the benefit 
of the charity. I cannot say that this case, on the 
face of it, is conclusive, but in the absence of any 
evidence from the party called upon to maintain the 
lease, I think that the conclusion to be drawn from the 
lease itself is such, as to justify the Court in saying, that 
this lease cannot be maintained. I have said, during the 
discussion, that there might be circumstances which 
would fully justify the alienation of charity property : 
I acted on that principle in the case of The At- 
iomey-Grneral v. The South Sea Company {e)^ and 


(m) ^Sm^^Si.UU 
{e) SQ.^. Aqi-S^ 

(d) 6 Fes. 4o^. 
(c) 4 Ar«r. 4^3. 



am not aware that that dedaon has ever, in any way, 
been disturbed. I must again repeat, that the Court 
is ready to attend to circumstances ; but they must be 
brought forward by the party who seeks to take ad* 
vantage of them. If the Defendant had even stated 
any circumstances which would have warranted an in- 
quiry, I should have been disposed, in a case like this, 
to haye directed one ; but I find no such circumstances 
even allied. It is the bare case of a lease of charity 
land for 999 years (which amounts to an alienation) at 
a fixed rent of lOL There is a covenant to lay out 300/., 
but for whose benefit I profess I am, at this moment, 
totally unable to ascertain, considering that this was 
an alienation. I must therefore consider this a bad 





It is sidd, that the Court ought to be influenced by the 
length of time which has elapsed since 1699. It would 
certainly be a very great mbtake to suppose, that this 
Court does not attend to lapse of time, during which a 
great deal of important evidence must necessarily have 
perished. If there are indications, not of themselves 
altogether satisfactory, which tend to a certain pre- 
sumption or conclusion, the Court, after a great length 
of time, will give a greater weight to those indications 
than it would in a modem transaction. But here there 
are no indications at all shewing the validity of this 

I should feel reluctant to dispose of this case without 
inquiry, if there were grounds for one ; for nobody can 
feel more strongly than I do the great hardship there 
is on persons, who having bought land, and innocently 
i^mained in possession for a length of time, are turned 
out of it, in consequence of a defect in the title which 
ttose long ago. I feel greatly for persons in that situa- 





tion) and I have^ over and over tigain, stated, that when 
aooh persons being infonned of the nature of their 
title, oome forward and isffer to do, upon fiiir terms, 
that which justice to the charity requires them to do^ 
I can never fiiil to take that matter seriously into con* 
sideration in determining the question of the costs of 
suit But when, bdng infonned of the circumstances, 
a party resists the claims of the charity to the ntmoat, 
and hila in the litigation, he must pay the costs which 
his own resistance has occasioned* 

Mr. RfmpeU asked for an allowance in respect of the 
value of the building. He cited The Attanuy^Churul 
V. Kerr, (a) 

Mr. Rogers^ contrh^ relied on The Attorney- General 
V. Orten (ft), and said that in The Atiomef-General v. 
Kerr one of the leases was held valid. 

2%e Master of the Rolls refused any aUowanoe, 
saying he must adhere to the rule in The Attorney^ 
Crtneral v. Green^ and that there were very spedal cir«- 
cumstances in 7%e Attamey^Gtneral y. Kerr. 

(a) 2 Urav. 420., and 3 Beav. 425. 

(*) 6 Vet. 452. 

Affirmed b? Lord CotUnham 25th Feb, 1850. 2 Haii 4- 7Vr. 186. 



The GEAND JUNCTION CANAL Company v. May i. 23. 


TN 1793, an act of parliament (a) passed authorising When the 
the construction of the Grand Junction Canal by cellor is a " 

a public company, which was thereby incorporated, P^y J^ * „ . 
,. ; , , suit, the bill » 

ind it gave them powers to purchase the necessary addressed to 
land for that purpose. Part of the land through which ^^ ^"«' *"^ 

'^ * '^ the cause is 

ihe canal passed was of copyhold tenure, and, in respect heard by the 
of this, the Company dealt with the copyholder, 5«rf- JJfj^f ^J^^ 
more, alone. On Skidmore^s death in 1835, Dimes, the the decree is 
lord of the manor, seized quausgue for want of a tenant. techni<»lW 

JJ^ completed, 
made final, 

(a) 33 G. 3. c. 80. (local and personal). and enrolled 

^ ' "^ as the decree 

of the King. 
But where a public company, in which the Lord Chancellor has shares, are suitors, 
the bill cannot properly oe addressed to the Queen in Chancery. 

It is a general rule that no one ought to be a judge in his own cause, and no 
judge ought, by himself or his deputy, to hear and determine a cause, or make an 
order, or do any judicial act, in a cause in which he has a personal interest ; but 
even in a case of imputed interest, a judge is not incapacitated from making an 
order, if, by refiimng to do so, justice would be denied. 

There is not, and cannot, in any case, be an incapacity to make any order or do 
any act in a matter, within the proper, peculiar and exclusive jurisdiction of a 
jti^s office, if such order or act be necessary to prevent a failure of justice. 
Wl^ver a judge's interest may be, if justice cannot be had, without an act or 
order of his, he cannot lawfully refuse to do the act, or ronke the order required. 
hi cases wbe^ questions of this kind arise, the judge must have a certain degree of 
discretion, and, having the capacity, his duty does not extend further than the 
necessity of the case reouircs : if there are other judges having co-ordinate juris- 
diction, he may and oufflit to refuse to act ) but if he, like the Lord Chancellor, 
should be the sole judge naving jurisdiction in the case it is otherwise. 

In a suit in which an incorporated company were Plaintiffs, a decree was pro- 
nounced by the Vice- Chancellor of England, and was affirmed, on appeal, by the 
Lord Chancellor. It was afterwards discovered that the Lord Chancellor was a 
dnoneholder in the Company, and a motion was made to discharge the order of the 
Lord Oiancellor, on the ground of his interest in the matter rendering it void. 
The Master of the Kolls was of opinion that the motion ought to be refused with 

The signing of a decree of a subordinate judge by the Lord Chancellor is a judi- 




The Grand 






He afterwards recovered at law in ejectment (a), and in 
an action of trespass for the mesne profits, (b) 

In the meantime, however (18th June, 1838), the 
Company had instituted this suit, which was attached 
to the Vice-Chancellor of England^ % Court, insisting 
that the Company, or the heir of Skidmore, as their 
trustee, were entitled to be admitted on payment of 
the fine. 

In July 1838 the Vice-Chancellor of England granted 
an injunction to restrain Dimes obtaining possession in 
the ejectment ; and that order was afterwards, on the 
14th of December 1838, confirmed by Lord Cottenkam» 

The cause was heard by the Vice-chancellor of 
England in November 1846, when he declared, that the 
heir of Skidmore ought to be admitted as trustee, on 
payment of the fine and fees to be settled by the 
Master (c), and upon rehearing, the decree was affirmed 
by Lord Cattenham, on the 27th o{ January 1848. {d) 

Dimes afterwards discovered that Lord Cotfenkam, 
at the time he made the order upon appeal, was the 
holder of ninety-two Grand Junction Canal shares; 
some in his own right, and others in a representative 
character. Dimes, insisting on the invalidity of the 
decree, made, as he alleged, by a Judge interested in 
the subject matter, gave notice of motion before the 
Lord Chancellor, that the order made by him on the 
petition of appeal and rehearing of the Defendant Dimes 
might be discharged. That the Plaintifis might replace 
in the hands of the R^istrar the sum of 20L depodted 


{h) 9 Q. B. Bep. 4«9. 

(r) 15J5«0M, 40^. 


by the Defendant on presenting his petition of rehear- 1849. 
iog, and repay to Mr. Dimes 65L 10«., the amount of xhTGiuiiD 
taxed ooats of the petition incurred by the Plaintiffi, Junction 
wUdi had been paid by Dimes. That the title of the ComiMmy 
petition might be amended, as in the notice of motion ^* 
mentioned, and then that the petition might be re- 
stored to his Lordship's paper of rehearings and appeals. 
And that proper directions might be given, by issuing 
aoommission or otherwise as might be necessary, for the 
liearing and determination of the said petition of re- 
bearing and appeal before the Master of the Bolls, 
mated by two Judges of Her Majesty's Courts of 
Common Law at Westminster. 

The Lord Chancellor haying requested the Master of 
the Bolls to hear the motion, and to consider what 
Older ought to be made, the motion was now brought 
on in this Court 

Mr. Daniel, Mr. Peacock, and Mr. Smythies, in sup- 
port of the motion. The order of the 27th of January 
1848 ought to be discharged, in consequence of the 
peeoniary Interest of the Judge who pronounced it : it 
is Toid, being a decision of a Judge in favour of himself 
lad the other shareholders. The other matters men- 
tioned in the notice of motion are merely consequentiaL 

That a Judge shall not adjudicate in a matter in 
which he has an interest, has been the settled law of 
thia country for centuries. The earliest authority re- 
1^ to the Lord Chancellor, and shews that a decree 
nade by him between strangers, in a matter concerning 
himaelf, is absolutely void. 

It is in Rollers Abridgment, and is stated as follows : 

"- '' Si le Seignieur Chancellor fait un decree enter 2 

Vol. XIL F estrangers. 




The Grand 






ettiabgers, en tin chbse qiie conoeme lu]^ m^anie etx in- 
terest) et pur luy mesme, oeo est void, pur ceo que il ne 
poet estre un Judge en son cause demesne. ^.11 Ja^ 
en Chancery, enter Sir J. Egerton and le Seigneur da 
Darby f and KeUey resolve per le Seigneur Chancellor 
Coke, and Dodderidge,^^ (a) 

- Again, in Earl of Derby's Cote (b), ^^ it was reaolTBd 
by the Lord Chancellor, the Chief Justice of England^ 
the Master of the Bolls, Doderidge and Winch Justioes, 
1. That the Chamberlain of Chester, bdng sole judge of 
Equity, cannot decree any thing wherein himself ia 
party, for he cannot be a. judge in propria causd; but 
in such case where he is party, the smt shall be heard 
here in the Chancery coram donatio ItegeJ* 

In the City of London y. Wood{e), an action waa 
brought in the Mayor's Court against Wood for ^QOLf 
as a forfeiture for not serving the office of Sheriff. 
Baron HatseU said : {d) " But another error assigned is, 
that this action is brought by the Mayor and Com- 
monalty of London in a court holden before the Mayor 
and Aldermen, and the record says, that the Mayor and 
Commonalty of London came before that court, that ia, 
the Mayor and Commonalty came before the Mayor and 
Aldermen, so thai the Mayor is both judge and party, a 
thing against natural justice. And this I hold to be 
error, for though the Mayor be not sole Plaintiff, nor 
sole Judge, yet he ia essentially Plaintiff and Judge ; " 
^ and he quoted Hob. 87., that an act of parliament 


(c) 2 BoUe's Ahr. Ut. Jmdget, 
A. pi. 11^ aod 14 rimers Air. 
tit. Jadget, A. pL H. *'Est 
encoaDter reasoo que si tort soil 
a wi hiMM, qm il de eeo 

senpoit son 

(6) liRcp. 114. 
(c) \2 Modtrm^ 669 



against ntturftl eqtiity, as to make one a judge in his 
own caaset would be merely void." 

I40rd HoUi in the same case^ observed, on this point (a), 
"I agree where the city of London claims any freedom 
or franchise to itself, there none of London shall be 
judge or jury, for there they claim an interest to them- 
Bdyes against the rest of mankind," &c. &c. ^' But the 
troe great point is, that the Court is held before the 
Mayor and Aldermen, and the action brought in the 
names of the Mayor and Commonalty, and that very 
ipsn, who is head of the city, and without whom the 
dty has no ability or capacity to sue, is the very person 
before whom the action is brought, and this cannot be 
by the rule^ of any law whatever, for it is against all 
UwB th^t the same person should be party and judge in 
the same cause ; for it is manifest contradiction ; for the 
party is he that is to complain to the judge, and the 
judge is to hear the party, the party endeavours to have 
Ua willf the judge determines against the will of the 
party, and has authority to enforce him to obey his 
qentenoe, and can any man act against his own will or 
enforce himself to obey ? The judge is agent, the party 
ii patient, and the same person cannot be both agent 
and patient in the same thing ; but it is the same thing 
to Bay that the same man may be patient and agent in 
the same thing, as to say, that he may be judge and 
party, and it is manifest contradiction. And what my 
Wd Coke says in Doctor Bonham^B case in his 8 Co. (b) 








(a) 12 Modem, 067, 

(b) 119 a, ** The censors can- 
not be judges, mvmten, and 
parties ; judges to gire sentence 
or judgment, ministers to make 
sommons ; and parties to have 
the moiety of the (brfeitiire^ quia 

aUquit non debet etse judex m 
propria cauta, imo iniquum ett 
aliquem sua ret eucjudicem; and: 
one cannot be judge and at- 
torney for any of the parties. 
Dyer, 3 S.6. 65, ; 3SE.3. 15.« 
8 H. 6. 19 b. 20a., 81 E. 4. 

F 2 




The Grand 





is far from any extravagancy^ for it is a very reason- 
able and true saying, that if an act of parUament 
should ordain that the same person should be party and 
judge, or, which is the same thing, judge in Us own 
cause, it would be a void act of parliament, for it is im- 
possible that one should be judge and party, for the judge 
is to determine between party and party, or between the 
government and the party, and an act of parliament can 
do no wrong, though it may do several things that look 
pretty odd." 

And as to the objection that the Becorder was the 
judge. Lord Holt added (a) : <* the placita are virtnaOy 
held before the Mayor and Aldermen, though, in fact, 
the Recorder acts and is as a deputy, and the steward of 
a court, who has a deputy, cannot sue in the court before 
his deputy, and a deputy acts, and of right ought to 
act, in the name of his principaL" 

In Brookes v. The Earl of Rivers (b), « the Court 
held, that where a Judge has an interest, neither he 
nor his deputy can determine a cause or At in Court ; 
and if he does, a prohibition lies.'' (c) 


47 a. &c And it appears in our 
books, that in many cases, the 
common law will controul acts 
of parliament, and sometimes 
adjudge them to be utterly void; 
for when an act of parliament is 
against common r^t and rea- 
son, or repugnant, or impossible 
to be performed, the common 
law will controul it and adjudge 
such act to be roid.** 

118 5. "Soyif anjact of par- 
liament gives to any to hoki, or 
to hare coousans of all manner 
of pleas arising before him witfaia 

manor of Dn yet he shall lM>ld 

no plea to which he himself is 
party ; for, as hath been said, 
imquum at aSqmem smt rei etse 

(a) 12 Modem, 690. 

{h) Hardres. 503. 

(c) In an Amomytmnu ctut^ 1 
Salk. 396. it is stated "Per 
UoU C J., The Mayor oiHert^ 
ford was laid by the beds for 
sitting in judgment in a cause 
where he himself was lessor of 
the Plaintiffin ejectment, though 
he, by the charter, was sole 
Judge of die court.* 



In Great Charte v. Kenmngton (a), ** two Justices of 
peace made an order of removal, which was quashed 
at sessions, because one of the Justices of the peace was 
an inhabitant of the parish from whence the pauper was 
removed. Upon debate in B. R. it was insisted, that 13 
& 14 Car. 2. c. 12. gives the power to any two Justices 
of the peace : and so has been the practice. And the in- 
stance of corporations where there are but two Justices of 
the peace or but one parish was insisted on. And besides 
there lay an appeaL But the Court held, that this was a 
judicial act, and the party interested is tacitly excepted. 
Lord Raymond^ who lived in the parish otAbbotfs Lang^ 
let/, went off the Bench, when one of their orders came 
hefore the Court. They said the practice could not 
OTertum so fundamental a rule of justice, as that a party 
interested could not be a judge. And as to the case of 
ooiporations, they said, that if it appeared there were 
no other Justices, it might be allowed to prevent a 
fiulnre of justice. And therefore they confirmed tho 
order of sessions," and the act of 16 Geo, 2, c. 18. was 
passed to remedy this. 


The Grand 



In the case of The King v. The Inhabitants of Yar^ 
pole (i), it was admitted, that on an appeal to the Ses- 
sions against an order of removal, those Justices who 
are rated to the relief of the poor in either of the con- 
tending parishes could not vote ; and in The King v. 
Gudridge (c), the same rule was held to apply upon an 
appeal against an order for the allowance of overseers' 

In the Queen v. Commissioners for Paving of Chelten^ 
ham (<f}, it was held, that upon an appeal from a rate. 


(a) 2 Slrange, WIS. 
(5) 4 Term Eep. 71. 

F Z 

(c) 5 Bam. ^ C. 459. 

(d) \Q.B.Rep.^7. 




The Grand 





Commiflsioners who were ratepayers could not Vote, 
and an order of Sessions, in which three Commissioners 
who were ratepayers had voted^ was quashed. 

1£ any one of the magbtrates hearing a case at Sea^ 
fiions be interested in the result, the Court is im- 
properly constituted, and an order made in the case will 
be quashed. Itoxd Denman says, ^'in my judgment a 
decision is vitiated by any one interested person taking 
part in it." The Queen v. The Justices of Hertfinrd" 
shire, (a) 

The objection is substantial, and is one of the greatest 
importance, considering the tendency of modem legisla- 
tion to vest the administration of justice in single 
Judges, and sometimes without appeal. If it be a 
matter of discretion. Masters in Ordinary, Taxing 
Masters, Kecorders and Judges of County Courts, may 
decide cases in their own favour, and in some instances 
such decisions would be final. 

The objection that Lord Cottenham had an interest 
must have been known to the Plaintiffs; and if it had 
been stated on the record, the bill would then have 
been addressed to the Queen, and the cause heard before 
the Master of the Bolls, and the decree enrolled under 
her sign manual, and every difficulty would thus have 
been avoided. 


Mr. Turner, Mr. James Parker, and Mr. Bush, ctnUrd^ 
^or the Plaintiffs. We admit the general rule of law. 
If the objection had been stated, or had occurred to the 
Lord Chancellor, no doubt he would have be4tated in 
rehearing the cause ; but Mr. Dimes himself, by pre- 

(fl) 6 Q. B. Rep. 7S3. 



senting liia petition of appeal to the Lord Chancellor, 
choee his jurisdiction, to which, no doubt, he would 
bve Bubmitted if the dedsion had been in his favour, 
bat whicht being adverse, be now questions. 

The authorities cited do not apply to the case of a 
ooiporation ; nor is there any authority for holding that 
a Jndge, by possessing shares in a corporate company, 
his such an interest as to disqualify him from adjudi- 
eating in any question relating to the corporate pro-i 
perty, and that any judgment pronounced by him is a 

Lord EUUm must have made many orders as to Bank 

stock and other matters in which the Bank of England 

were concerned, although he held Bank stock. Where 

there is no other mode of deciding, the sole Judge, ex 

necessUaie, must act, as in the case cited from Stranffe.{a) 

In the case of a Justice being an inhabitant of a parish 

interested, it is said, *' And as to the case of cor« 

pcnrations, they [the Court] said, that if it appeared 

tiiere were no other Justices, it might be allowed, to 

prevent a failure ofjusticeJ*^ Here the Lord Chancellor 

is the only Judge who can have jurisdiction, for all 

decrees are made for him and enrolled as such, and if he 

be inoapamtated, no adjudication can be had. 

Again, if the decree be erroneous, it cannot be set 
aside or avmded by motion, and on affidavit ; it must be 
done by bill of review, giving the parties the oppor* 
tanity of contesting by evidence, r^ularly taken, and 
with the power of cross-examination of the witnesses, 
the facts stated on the record. 


The ORAMir 







F 4: 

^^^^^^^ cognisanci 

^^^^^^^ exercbe 



There is this difficulty also, that if the Lord Cbui< 
oellor's interest prevented bis makiDg the decree, the 
same ohjection equally prevents his applying his judtoal 
mind to the question of the vnlidity of the order. 

[T'Ae Mastgb oft}te Bolls. If an order be made, 
inadvertently, by a Judge not having proper jurisdic- 
tion, has he not authority, on the matter being brought 
to his attention, to discharge it, or to remove it, as an 
obstruction out of the way of the party affected hy it ?] 

Any order made by the Lord Chancellor on this 
motion would be as inoperative as his decree, and no 
other Judge of the Court has any jurisdiction over 
the Lord Chancellor's order. 

If the decree compUined of were set aside, the decree 
of the Vice-Cbancellor of England would remain ; this 
discusidon is therefore fruitless. The Defendant might 
appeal to the House of Lords, and obtain the deciuon 
of a disinterested tribunal The Pluntifi^ would aid 
htm ; but even then, according to his argument, there 
would still be this objection, that the decree of the 
"Vice- Chancellor of England must first be enrolled, and 
then it would become the decree of the Lord Chancellor, 
for the rule applies to ministerial as well aa to judicial 
acts, as taking a fine or rccognigancc. 

In Bacon's Abr. (tit. Execution B. 1. noted.) it a 
Bud, " that if a person enters into a recognisance to the 
Chancellor, for a debt due to himself, it is a void re- 
•ognisance; for the law will not trust him with the 
exercise of his power in his own case," &c. (a) 


(a) Zfym-iSSQ.; B Rep. 118 b. 



As to the matters of this motion said to be conse- 
(jxiential, the restoration of the appeal would be useless ; 
ankd it is clear the Court has no jurisdiction to issue a 
oommission, which it was resolved in the EarlofDerbi/^ 
{a) the King cannot do. 

Mr. Bandell and Mr. G. L. RusselU for other parties. 


The Grand 





]Mr. Daniely in reply. Mr. Dimes proceeded in ig- 
of the existence of the interest ix)ssessed by the 
Chancellor in the canaL There would be no 
uial of justice if the bill had been properly addressed 
tbe Queen. This is not an attempt to get rid of a 
by motion, because it is a decree in form only : 
inrants the proper judicial authority, and the difficulty 
granting the consequential relief is no answer to the 
P^E^incipol relief asked. 

Vhe Master of the Rolls. 

Xn this case, the Lord Chancellor was moved, that an 

made by him on the petition of appeal and rehear- 

of the Defendant Dimes might be discharged: 

the PlaintiiFs might replace in the hands of the 

e^strar the sum of 20/., deposited by the Defendant 

presenting his petition of rehearing, and repay to 

jmes 65/. 10«., the amount of taxed costs of the peti- 

incurred by the Plaintiffs which had been paid by 

9nes : that the title of the petition might be amended, 

Sn the notice of motion is mentioned ; and then, that 

petition might be restored to his Lordship's paper of 

V^earings and appeals, and that proper directions might 

given by issuing a commission, or otherwise as might 

necessary, for the hearing and determination of the 

(a) 12 Rep. 114. 

Majf S3. 


Btdd petition of repeating and appeal before the Maater 
of the Bolb, assisted by two Judges of her Majesty's 
Courts of Common Law at Weitmiiuter. 

The Lord Chancellor having requested me to hear 
the motion, and to consider what, if any, order ought to 
be made upon it, I was attended by Counsel, and, having 
heard the argmnents in support of and ag^net the mo- 
tion, I have considered the case, and have been requested 
by his Lordship to state my opinion thereon io this 

The order sought to be discharged was made by the 
Lord Chancellor on a petition for the rehearing of a 
decree made by the Vice-Chancellor of England. His 
Lordship thereby affirmed the decree made by his 
Honor. If his Lordship's order were discharged, the 
decree of liia Honor would remuu in full force ; and the 
position of the parties would not be in any material 
degree altered. And it has been stated at the bar by' the 
Coimael of Mr. Dimes, that at present the only object 
of Mr. Dimes in making this application is to be placed 
in the same situation in which he was before the' Lord 
Chancellor's order was pronounced. 

The application is not made on the ground of any 
alleged error in his Lordship's judgment. Counsel on 
both sides have abstained from making any observation 
upon the merits of the matters in litigation between the 
parties in the cause ; but as Mr. Dimes desires his peti- 
tion of rehearing to be restored to the Lord Chancellor's 
I must presume that he stUl alleges the decree 

tiie Vicfr-Chancellor of England to be erroneous, and, 

oonsequence, that the Lord Chancellor's order affinn- 

falg that deci'ee is erroneous ; but except in that way, and 

inferentially, uo imputation has been made before me 




a^sinst the order wluGh]^.2)tme« seeks to diecharge. It 
WWL8 made after full argument, and may be perfectly just ; 
hiJLt it is oontended, that the Plaintiffs are not entitled to 
the benefit of the judgment which ^ey have obtained, 
«nd that the order ought to be discharged on motion, 
^v^thout a rehearing or any regard being had to the 
ttierits of the case as between the parties. 

The ground of the application is, that the Lord 
Oliaiioellor, at and before the date of the order, was, 
^^xxd still is, concerned in interest in the matters in ques- 
^on in the cause. 

The suit relates to certain property to which the 
S^liuntifiB, and the Defendant respectively, claim to be 


The Grand 





The Plaintiffii are an incorporated Joint Stock Com^ 

I>«ny, possessing property and effects to which the pro- 

P'vietoiB are entitled In shares, and the Lord Chancellor 

S^^aving been, long before and at the date of the order, a 

t>xx>prietor of certain shares in the Company, it is alleged 

Mr. IKmes, that there is such an interest in the con- 

and general property of the Company attached to 

shares, that the Lord Chancellor, as owner of 

, was, and is, thereby incapacitated to act as Judge 

^ny cause to which the Company is a party. 

Xt seems scarcely worth while to consider the nature 
^ amount of the interest attached to such shares in a 
^^int Stock Company, the value depending on the 
:et price on sale, or on the result of a winding up 
^ the affiurs of the Company. He has a strange notion 
things, who supposes such an interest to be capable 
produdng any bias in the mind of a Judge administer- 
^^ justice in public, and subject to appeal in a matter 





The Grahd 




having no direct or special relation to the value of such 
shares. But, on the present occasion, it seems to me 
more satbfactorj to assume that the interest is such as 
to make it undesirable, at least, if not objectionable, to 
bring a litigated matter affecting the Company before 
a Judge who has any such interest. 

The fact of the Lord Chancellor being the owner of 
such shares in the Grand Junction Canal Company was, 
upon the inquiry of Mr. Dimes subsequent to the hear- 
ing, communicated to him by the direction of his Lord- 
ship. Mr. Dimes says, that he was not aware of it at 
the time when he presented his petition of rehearing, 
or at the time when the order was made, and it is not 
alleged, that at the same time the Lord Chancellor was 
aware, or conscious, that he had, or could be supposed 
to have, any interest in the matters in question in the 

"^^ Dimes has not stated any special reasons, or, 
indeed, made any special application, for a second re- 
hearing, upon which, waving any objection on the 
ground of alleged incapacity, the cause might have been 
reheard for the Lord Chancellor by other judges ; but 
insisting on a very important principle, from which he 
says there ought to be no deviation or exception, the 
application itself is made on grounds which must be 
considered as purely technical, and, in form, applicable 
only to a technical objection. He alleges no error in 
the order of which he complains ; but he says that the 
Judge was, by his interest, incapacitated from acting 
as Judge in the case, and, consequently, that any act 
done or order made by him as Judge is merely void. 
Nullity of the order is the sole ground of the applica- 
tion, which must be dealt with in the manner in which 
Mr. Dimes himself has thought fit to make it. 

• There 



There is no question as to the "validity and importance 

of the general mlei that no one is to be a Judge in 

his own cause, >and that no Judge ought, bj himself 

or his deputy, to hear and determine a cause, or make 

any order, or do any judicial act, in a cause in which 

he has a personal interest This is a fundamental and 

moBt important rule, not to be departed from without 

necessity ; and in all cases where there are several courts 

o^ concurrent jurisdiction, or one court composed of 

^ veral co-ordinate Judges, capable of being held without 

the presence of any of them who may be concerned 

'^ interest, there is no difficulty in acting on the rule. 


The Grand 






Sat, general and important as the rule is, cases may 

^•X"ise, in which it must ^ve way to circumstances and 

^o the necessity of avoiding any denial of justice. In 

tli.e case between the parishes of Great Charte v. Jr<fn- 

^^^^tan (a) the Judges said, *' the practice could not 

^^"^ertum so fundamental a rule of justice, as that a 

f^^^rty interested could not be a Judge ; and as to the 

of corporations ^ and no other Justices, which had 

Q referred to in the argument, they said, '* that if it 

f^peared there were no other Justices, it might be 

wed to prevent a failure of justice.** 

failure of justice was, therefore, in this dictum, 
to be a greater evil than a departure from 
^ fundamental rule, that a party interested cannot be 

where the whole jurisdiction over the matters in 
^^^:stion is vested in one Judge, where there are no co- 
Vuite Judges, where the subordinate Judges are, in 
-V^stance and effect, deputies, whose orders are not 
'^plete or final, till they are formally sanctioned and 


(a) 2 Strange, 1 173. 




ftdopted by one Chief Judge, ones must wnee, in 
which it raaj be difficult, if not impoesiUe, to act in 
•triet oonfonnity with the rule without denying justioa. 

Now the Ijord Chancellor, whatever may be the 
judicial aasistanee proyided for him by law, ia yirtually 
the sole Judge of the Court of Chancery, upon bilk of 
complaint addreaBcd to him ; and, notwithstanding hia 
position, he cannot be so entirely withdrawn from the 
aflbirs, business, and duties of ordinary life, as to be 
altogether exempted from the necessity of suing or being 
sued in the Court of Chancery, or exempted from all 
personal interest, in matters which may be litigated 
in the Court of Chancery. 

The cases in which the Lord Chancellor is a party to 
the suit are provided fbr, by the established practice c( 
addressing the bill of complaint on which relief is soughtf 
not to the Lord Chancellor, as in the usual ooursei 
but to the King, in his High Court of Chancery. In 
such cases, the cause may and ought to be heard before 
the Master of the Rolls, with or without assistance^- 
the order or decree is made personally by the Master of 
the Rolls with his assistants (if any), but it is formally 
and technically completed, made final, and enrolled as 
the decree of the King. . 

, Such, I conceive, to be the regular course of proceeding 
in such cases, although some variances and discrepaneiei 
in the form may be found in the records of the Court 


But cases in which the Lord Chancellor is a necessary 
or proper party do not assist in the determination of the 
present case, in which the Lord Chancellor is not so in<* 
terested as to be a party, either necessary or prope? to 
the suit The bill is not, and I apprehend could not 




itve properlj been addressed to the Queen in her'Court 
of ChftDcerj. It is addressed to the Lord Chancellor 
Uiiisel£ Anj order made in the cause by the Master 
of the Bolls or anj Yice-Chancellor must be subject to 
be reheard, discharged, or altered by the Lord Chancellor, 
and by him alone, and must be adopted and sanctioned 
by him, before it can be or be deemed to be a complete 
and final order of the Court of Chancery ; and, conse- 
quently, if the Lord Chancellor cannot, in such a case, 
lawfully make any judicial (urder, or do any judicial act, 
there must, of necessity, be a failure of justice in the 
Court of Chancery. 


The Orand 




The rule strictly applied to the extent now contended 
fiir would make it imlawful for the Lord Chancellor, 
beii^ a proprietor of Bank of England or Eatt India 
stoek, or being a trustee of the British Museum^ which he 
isoflifflally, having in that character important duties to 
perform, to make any order, or do any act in any cause 
ia which the Bank of England^ or the East India Com* 
paay, or i^Bridih Museum might happen to be parties. 
Many other analogous cases might easily be stated, 
sad the objection would not be less, though the sub^ 
jeet of immediate litigation did not directly relate to 
mj thing in which the Lord Chancellor might be per- 
sonally concerned or interested, or to any duty which it 
Edight be incumbent on him personally to perform; 
because the general assets, and the general conduct of 
audi a corporation or society as I have been alluding 
to, may be more or lees affected by the result of any 
litigation in which the corporation or society may be 
engaged, and the general assets or general conduct of 
tibe OOTporAtion or society being affected, the value of 
ahorea, the interest of proprietors, and the particular 
duties of trustees may be remotely, and consequently in 
some d^pm, alTected. But interests of this kind do not 





The Grand 





make it necessary or proper that all persons possessing 
them should be made parties to the cause ; and in cases 
where the Court of Chancery, or, in other words, the 
Lord Chancellor, has the sole jurisdiction in the matters 
brought into litigation, it may well be asked, whether 
the Lord Chancellor, even if he wished to do so, could 
lawfully refuse to hear and adjudicate in such a case of 
indirect and remote interest ? The question does not 
seem to be so much whether the Lord Chancellor can 
lawfully make an order, as whether he can lawfully 
refuse to make an order, when the purposes of justice 
require it. But, for the purpose of considering how this 
matter stands in the present case, let it be supposed, 
that the interest imputed to the Lord Chancellor had 
been known when the decree of the yice-Chancellor of 
England was pronounced against Mr. Dimes, and that 
Mr. Dimes, being dissatisfied, had desired to appeal. 
The Lord Chancellor being, as is now alleged, incapable 
of hearing the case, Mr. Dimes must have desired to 
appeal from the decree of the Y ice-Chancellor of j£n^- 
land to the House of Lords ; and surely he had a right 
to do so, and ought to have had the means allowed 
him, and thereby be enabled to bring any error of 
which he complained, before a perfectly competent and 
disinterested tribunal. But he could not take his ap^ 
peal to the House of Lords until he had enrolled the 
decree, and the decree of the Vice-Chancellor of JEng^* 
land could not be enrolled before it had received the 
signature of the Lord Chancellor. According to the 
true effect of the argument addressed to me, this sig- 
nature could not have been lawfully aflSxed ; for though 
it was alleged that the act of signature was merely 
ministerial, and might, therefore, have been lawfully 
affixed, though the Lord Chancellor could do no ju- 
dicial act, yet I am of opinion, that the signature of 
the Lord Chancellor to the decree made by a subordinate 




Jndg^ 18 not a merely ministerial act The Lord 
Chancellor having confidence in the decree of his snb- 
oidiiiite Jndge, and in the officer who cMifies the pro- 
eeediogs to be regular, may, if he thinks fit, in aid of 
JQitice, and in order to give parties the means of ap-> 
peiling to the House of Lords, at once sign the docket 
of a decree made by the Master of the Rolls, or Vice- 
Clniicellor, without applying his mind to the considera- 
tioQ of the merits of the case, or himself investigaliiig 
die agreement between the docket and the proceedings 
or orders. In these circumstances he may in one sense 
be nud to act ministerially ; but, in truth, the act is judi- 
cU: and the Lord Chancellor may reinse to rign the 
dodcet, without first personaUy satisfying himself that 
H is right to do so. 





In this stage of the cause, therefore, by the cBrect 
ttgoment of Mr. Dimes, the Lord Chancellor could not 
iave lawfully heard the case ; and, by a necessary con- 
nqosDce of his argument, the Lord Chancellor could 
Bot have lawfully affixed his signature to the docket of 
the Yice-Chancellor's decree; the decree could not 
lure been lawfully enrolled, and the House of Lords 
mid not have lawfully heard the appeal Every step 
woald, according to the argument used in this case, 
iMife been a nullity. The Lord Chancellor, being in- 
opacitated to make any order, could neither reverse the 
decree of the Vice-chancellor, nor affix his signature to 
tlie docket of the decree, so as to enable Mr. Dimes to 
ippeal to and procure its reversal by the House of 
Lends ; and supposing the decree of the yice-Chancellor 
d England to be erroneous, as Mr. Dimes alleged, there 
most have been a complete failure of justice in the 
Court of Chancery. Nothing less than an act of parliar 
nent could have afforded Mr. Dimes any relief. 

Vol. XII. G I am, 




The Graki^ 



I am^^ however, of opihionj that the argument' of Mr. 
Dimes is fUlacious, and that the Lord Chancellor could 
not have properly or lawfully held himself to be in- 
capacitated to make any order in the cause. I oonuder 
the signing of the decree of a subordinate judge bj the 
Lord Chancellor to be a judicial act; but I am never- 
theless of opinion, that, if Mr. Dimes had desired it, the 
Lord Chancellor not only might, but, in the discharge 
of his duty, must have signed the docket, and thereby 
enabled Mr. Dimes to go at once to the House of Lords, 
where complete justice might have been satisfactorily 

But Mr. Dimes, in ignorance of the interest whidi 
he has since discovered, presented to the Lord Chan- 
cellor an ordinary petition to rehear the cause, on the 
ground of alleged error in the decree of the Yioe-Chan- 
cellor of England; and I will now suppose that, at the 
time of the cause being called on for hearing before 
the Lord Chancellor, the interest had been discovered 
and stated, the objection taken and not waived, what 
doudd'or ought to have been done? The motion, in a 
part of it which was abandoned at the hearing before 
me, asked, that, on the restoration of Mr. Dimes^s pe- 
tition to the Lord Chancellor's paper of rehearings and 
appeals, proper directions might be given, by issuing a 
commission or otherwise, as might be necessary, for 
the hearing and determination of the petition of 
hearing and appeal before the Master of the Rolls, 
sisted by two Judges of her Majesty's Courts of common 
law at Westminster, I think that this part of the mo- 
tion was very properly abandoned ; 1st. because I am of 
opinion that the Lord Chancellor has no legal authority 
to issue any such commission as is suggested (a), and 


(a) Coke't 4th Intt. 87. 97. 813. ; 12 Rey. 114. 



Sdlji bediiise the undoubted authority of the Loi^ 
Chancellor) to require the aeaistonce of the Master of 
the Rolls in any judicial matters pending in the Court 
of Chancery, does not enable him to depute to or vest 
ia the Master of the Rolls that authority, which is by 
kw Tested in the Lord Chancellor alone, to reverse, 
ddnrge, <Mr alter any decree or order of the Vice- 
Qumcellor of England, (a) 


The GRiiND 





It is plain, thereforcj that Mr. Dimet has not well 
ooiuttdered the nature of the case, or his course of pro- 
Q8e£ng, if he has any ground of complaint ; and the 
oootse at first suggested by Mr. Dimes being now properly 
ibaodonedf the question remains, what could or ought 
tolmyd been done, if the interest had been discovered 
lod stated, and the objection taken and not waived at 
tbe hearing ? And this is, in efl^t, precisely the same 
foestbn which would arise, if the present application, 
to the extent it is now pressed, were complied with. 
Could the Lord Chancellor have lawfully refused to 
mke any order or to interfere in any way? It is 
dear that no order could be made upon the petition 
bat by the Lord Chanoellor. No extraneous or foreign 
mistance^ no hearing by other Judges, nor any judg- 
ment (Mronounced by them could make the order any 
tUng but tbe order of the Lord Chancellor. In this 
Mpect it would be like the case of fFood v. The Cor* 
ftresdon ef London (b\ in which an action had been 
brought in the name of the Mayor and Commonalty of 
the mty of London, in the Court of the Mayor and 
Aldermen of London. The trial took place before the 
Recorder, in the absence of the Mayor ; but it was 
hidd, that ^though the Mayor absent himself, and 
tlie Recorder sits for him, and that by the custom of 


(«) See 6S Oflo. 8. c. Si. 0) 1 <SSvfir. 898. 

: G 2 r^ 




The Grand 





the city, yet it alters not the case; for though the 
Recorder sits personally, and it is personally his judg- 
ment, yet it is legally and virtually the act of the 
Mayor. The Recorder is his deputy, and his act is the 
act of his superior. The style of the Court is Coram 
Majore &c. ; and a man cannot sue either before himself 
or his deputy." So, if the Lord Chancellor were to be 
absent himself and ask the Master of the Rolls, with or 
without assistance, to hear the case, the order made, on 
such hearing, whatever it might be, would legally and 
virtually be the order and act of the Lord Chancellor^ 
and, according to the argument in support of this motion^ 
would be an illegal act and order. No party has a right 
to call upon a Judge to make, and a Judge may certainly 
refuse to make, an illegal order, and it is, I think, an 
unavoidable consequence of the argument of Mr. Dimes, 
if it were held to be valid, that the Lord Chancellor 
ought to refuse to make any order in this case, though 
the consequence should be a failure of justice, or rather 
a denial of justice, to Mr. Dimes himself, and what Mr. 
Dimes now asks would not in the least degree relieve him 
from the diiEculty in which he ima^nes himself to be 
involved. What he asks, in effect, is, that the order 
made to affirm the decree of the Vice-Chancellor of 
England may be treated as a nullity, for the purpose 
of restoring the cause to a situation in which there 
must be either a refusal to make any order and thereby 
a denial of justice, or some other order must be made, 
which, on the same ground as the order already made, 
ought to be treated as a nullity, again producing a 
denial of justice. 

The absurdity of this course of proceeding is mani- 
fest, and there is no excuse for it* There need be no 
denial or failure of justice in this or any like case. It 
may be admitted, that in all cases where the strict appli- 



cation of the rule would not lead to a fulure of justicei 
the Judge ought not to make an order in a case in 
iBvhich he is interested. This being so, and it being of 
the utmost importance to avoid every thing tending to 
throw even a breath of suspicion on the purity of the 
administration of justice, I am nevertheless of opinion 
that, even in a case of imputed interest, the Judge is 
not incapacitated from making an order, if by refusing 
to do so, justice would be denied. 


The Grand 



If the interest had been suggested at the time of the 

hearing, I presume that the Lord Chancellor, acting as 

any other Judge would do on the like occasion, would 

bive proposed to the parties to have the case heard before 

some other Judge or Judges, upon whose opinion or 

advice his Lordship might make such order as should 

appear right ; and if both parties had consented to this, 

all might have been well No order could indeed have 

been made free from the objection which Air. Dimes 

now insists upon ; but there might have been a hearing 

for the Lord Chancellor before other Judges ; an order 

might have been made in his Lordship's name, by those 

other Judges, and an enrolment of the order, under the 

Lord Chancellor's signature, would have enabled either 

party to appeal ultimately to the House of Lords. But 

although perfect justice might in this way have been 

done, and all real and substantial objection entirely 

obviated, it would, according to the argument of Mr. 

Dimes, have been all wrong, and the whole proceeding 

would have consisted of a series of nullities. If either 

party had insisted, as Mr, Dimes now does, that the 

Lord Chancellor was incapacitated from making any 

order, his Lordship would then have had to consider that 

objection, and to determine what was necessary to be 

done to prevent a failure of justice ; and bearing in 

niiiid that the only object of this present application is 

G Z to 




<The Grand 





to place the cause in the situation I have last sup^ 
posed; I think that the only real question to be now 
considered is> what is required to be done to prevent a 
£ulure or denial of justice. It does not appear to me 
to be necessary to make any remark upon the unqualified 
assertion sometimes made even by high authority, upon 
the incapacity not only of Judges and CourtSi but even 
of Parliament itself, to do certain supposed acts, in 
certain supposed circumstances, and upon the allied 
nullity of such supposed acts when attempted, (a) I do 
not concur in the truth of the broad and imqualified 
assertions which have sometimes been made on these 
subjects, and which appear to me to have a strong ten- 
dency to mislead the unwary ; and it is my duty, on this 
occasion, to express my own opinion, that there is not 
and cannot, in any case, be an incapacity of a Judge to 
make any order or do any act in a matter within the 
proper, peculiar, and exclusive jurisdiction of his office, 
if such order or act be necessary to prevent a failure of 
justice. I think that whatever his interest may be, if 
justice cannot be had without an act or cmler of his, he 
cannot lawfully refuse to do the act or make the order 
required. It appears to me, that in cases where ques- 
tions of this kind arise, the Judge must have a certain 
degree of discretion, and that having the capacity his 
duty does not extend further than the necessity of the 
case requires; if there are other Judges having co- 
ordinate jurisdiction, and sufficient in number to make a 
Court without his attendance, he may and ought to re- 
tire and refuse to act at all ; but if he, like the Lord 
Chancellor, should be the sole Judge having jurisdic- 
tion in the case, it is otherwise. He must do what is in- 
cumbent on him to prevent a failure of justice. He is 
not to disregard the objection to a cause being heard and 


(a) See atUi, p. 67. . 



decided by a Judge who is, or is even suspected to be 

interested in the subject of litigation ; but neither is he 

to disr^ard his first duty to prevent a failure of justice ; 

^d applying these principles to the present case (that 

of a petition to rehear a cause in which the Yice-Chan^j' 

cellor has made a decree)i I think, that, notwithstanding 

any alleged incapacity from interest, the Lord Chancellor 

might lawfully and properly sign the docket of the 

Yioe-^hanoellor's decree, for the purpose of enabling 

the party to appeal to the House of Lords, and might, 

lawfully and properly, if neither party objected, procure 

ibe case to be heard for him by other judges or another 

judge, whose disinterested opinion and advice might 

enable him to make an order formally and substantially 

lus own, — a doursd of proceeding which would not be 

founded either on the incapacity of himself or on i 

delation to any other of his own . peculiar authority 

to reverse an order of the Vice-Chancellor of England 

on a re-hearing. But if either party should object to 

this course of proceeding, as it would not be necessary 

to prevent a denial of justice, I think that, notwith- 

itaoding his legal capacity and duty, he might, lawfully 

and properly, decline to hear and decide the cause on 

the merits, or even to commit the hearing to any other 

iMT others for the purpose of making an order of his own, 

on the advice or opinion he might receive. In such case, 

the party complaining of the Vice- Chancellor's decree 

oonld be relieved from any error only by appeal to the 

House of Lords, — an ample and sufficient remedy ; if 

the law were such that the House of Lords could not 

hear an appeal firom a decree of the Court of Chancery 

which had not been personally pronounced by the Lord 

Chanoellor himself, and on a hearing by himself, I think 

that in such case (which happily does not exist), it would 

be the duty of the Lord Chanoellor to hear and make 

tm order on the merits of the case, because in no other 

(? 4 way 


.The OranD 






The Grand 





way could a failure of justice be prevented. Having an 
authority to exerdse and a duty to perform, his discre* 
tion in the exercise of his authority and in the perform- 
ance of his duty, must be governed by his view of the 
necessity of the case ; the necessity under which he is 
to prevent his peculiar and personal position from oc^ 
casioning a failure or a denial of justice. He is not to 
abstain, because the circumstances may be painful to 
himself, or such as he would willingly escape from. 
And for the reasons I have stated, I am of opinion that 
an order which he may make, in the exercise of that dis- 
cretion, is not void for incapacity, and ought not to be 
treated as a nullity. 

On the whole, therefore, considering that Mr. Dimes 
has raised an objection, which (if valid) is unavoidable, 
and leads directly to a denial of justice : — that if the 
opinion which I have stated be correct, it would be the 
duty of the Lonl Chancellor to enable Mr. Dimes to enrol 
the decree already made, and, if Mr. Dimes should desire 
it, the order to be made on the present application, »nd 
that by such means any error, if error there be, of which 
Mr. Dimes may have reason to complain,, may be fully 
and satisfactorily redressed in the House of Lords : — 
considering further, that, except by appealing to the 
House of Lords, Mr. Dimes has no means of obtain- 
ing relief against the decree of the Vice-Chancellor of 
England y even if the order made by the Lord Chan- 
cellor were discharged, — and that granting this appli- 
cation would be of no avail, but would leave the case 
subject to the same objection and difficulty, from which 
Mr. Dimes may relieve himself, as soon as he pleases, by 
an appeal in the usual course, I am of opinion, and shall 
humbly advise the Lord Chancellor, that this motioa 
ought to be refused with costs. 

Affinned by Lord CaUeuham, % Hall 4- 2 V. 92. 



ROSS V. ROSS. June 20. 

npHE testator gave the residue of his real and per- A pnrty 
^ 8onal estate unto his brother's children equally, tingent inter* 

M tenants in common, with cross remainders, in the J*' *" * *'^\**^ 

fund may, m a 
event of any of them dying under twenty-one. proper case, 

nave it 

. . ... brought into 

The testator died in 1831, and administration was Court for hia 
gnmted first to his widow, and afterwards to Susannah^ Ku'he^ust 

the eldest child, on her attaining twenty-one. shew some 

ground for it. 

There were eight children, James Augusttu^ who was Motion to 
the Plaintiff, and seven others. They had all attained into Court, 
twenty-one except Henrietta and Emma. refused, on the 

^ '^ ground that 

there was no 

Part of the testator^s property consisted of a sum of jaMer^and 
stock standing in his name, and by arrangement, this that the fund 
«nn was divided, and six eighths paid to the Plaintiff ^g^Ar' be^' 
and the other five children who had attained twenty-one. sufficiently 
Theremiuning two eighths, being 794£ 10*., were still diUrwgoM. 
in the Bank, and appropriated as the shares of the infiint 
Defendants Henrietta and Emma. 

This bill was filed by James Augustus Rossy one of 
the diildren, against the widow, the administratrix, and 
the other residuary legatees, for an account of the real 
and personal estate. The answer admitted the above 
facts as to the two eighths of the stock standing in the 
Bank, under the above arrangement, in trust for the 
two infant Defendants, and stated, that the Plaintiff had 
received more than his share of the residue. 


1849. It was now moved, on behalf of the Plaintiff, that 

this sum should be paid into Court, and also for pro- 
duction of documents. 

Mr. Turner and Mr. Renshaw^ for the Plaintiff, con- 
tended, that as the Plaintiff had a contingent interest 
in the fund, which would take effect in the ev^nt of 
the infants dying under twenty-one, he was entitled to 
have the fund brought into Court for his protection ; 
and that, pending a suit for administration, the ordinary 
rule was, to bring the trust money into Court. 

Mr. Roupell and Mr. Batten^ for the infants, resisted 
the application, on the ground that the Plaintiff had 
nothing but a remote contingency in a small share in the 
fund which did not exceed 163/. That there was no 
chaise of danger or insecurity, and that even if ther^ 
had been, the Plaintiff might protect his interest by a 
distringas. That the Plaintiff had acquiesced in the 
arrangement made upon the division, and that his only 
object was to create a fund in Court for the payment of 
the costs of suit. 

Mr. Lloydt for the administratrix, also resisted the 
application as being unnecessary. 

The Mabteb of the RoLLS. 

Am I bound to order this sum to be brought into 
Court in a case where I see no danger? There was a 
time when it was almost considered as a mere matter 
of course to order trust funds to be brought into Court ; 
but now the question always is, whether there exists 
any sufficient ground* for such an interposition. Here, 
though there has been an appropriation, the Plaintiff, 
who has a contingent interest, is not prevented making 
this application ; for a party having merely a contingent 



inUsresi in a sum of stook maj, no doubt, in a proper 1849. 
cue, apply to have it brought into Court The Plidn- 
tiff, however, in this case, con sufficiently protect Us 
interest by the ordinary process of distringas^ and that 
will save a great deal of complication and expense. 


The ground on which I now proceed is this : — There 
is not the least allegation or pretence of any danger to 
the fund ; and it also appears, that there is a debt due 
from the Plaintiff to the estate, which affords ample 
fiecuity to him ; besides, the Plaintiff may adopt a pro- 
oen out of Court, by which the fund cannot be removed 
without notice. 

The real question is as to the C08t« of this motion, 
and I think I ought not to give any. 


ON the 30th of March 1840, on the petition of the ;^ motion 
, being renised, 

Pkdntiff, an order was made, that the Plaintiff's with costs, 

coets of certain impertinence in an affidavit of the De- '^® P?"^ ^?" 

* ^ ^ not afterwards 

fendant should be taxed and paid by Cobbeti (not stating renew the 
to whom). The costs were taxed, and on the 11th of "osSaS**"'' 
June a subpcma for costs issued, directing them to be been paid, 
paid to the Plaintiff. Cobbett was then in custody in the ^^g j^^^ ^^ 
Fket, he having been brought up under a commission *.^® appljca- 
of rebellion, issuing out of the Court of Exchequer, Plaintiff that 
and by that Court committed (a), and in consequence ^f'^l'l ^^ 
the attachment was lodged at the Fleet as a detainer. taxed and 

The P"^ without 

(a) See I P-«%.. 667. X7 V 

mbpeaut for costs directed them to be paid to the Plaintiff, and an attachment issued 
io the usual form. Held, regular. 
It is not neoessarj to bring up a party who is in' custody for non-payment of costs. 






The Fket prison was abolished by the 5 & 6 Viet, 
c. 22., and Cobbett was afterwards turned over to the 
Queen's Prison under the provisions of that statute. 

Mr. Greene now moved that Cobbett might bo dis- 
charged, on various grounds. He argued as follows : — 

First. There is no order on Cobbett to pay to the 
Plaintiff; the order of the 30th of March directs Cobbett 
to pay, but does not state to whom. The forms, under 
the General Order of May 1839 (a), of the writs of ^ 
fa. and ekyit, shew, that the orders on which they issue 
direct to whom the money or costs is to be paid. They 
run thus, which sum was ordered '^ to be paid by the 
said C. 2). to A. B.^ If, therefore, it is necessary 
where the property of a party alone is in question, 
i fortiori, it is necessary where the personal liberty of 
the subject is concerned, in which case nothing ought to 
be left to inference. The regular form of order is to 
direct to whom the costs are to be paid. 

[ TV Master of the Rolls. But does not the sub^ 
ptjtMa for costs direct the costs to be paid to the Pbdn* 

tiff? (5)] 

Yes ; but it is not warranted by the order. Neither 
the order nor the certificate of ta3cation shew, that the 
c<«^ were adjudged to be pwl to the Plaintiff In 
Tnfl9r T. Jardime{c) an c»rder was directed to be 
amended by addiii^ the words ^ and paid by the 

2. The 

(«> CM. Cm. HI. 
(*> See tlie ftra t£ 

if) 1 Umr^ Sl€w 


i* The attachment is not a warrant of committal: a 1849. 
^arrant us neoessary to detain a party in cagtody, and the ^^""^"^^ 
Defendant ought to have been brought up and conmiitted. v. 

Thft writ of attachment commanded the Sheriflf to attach Comitt. 
CMett, 80 as to have him before the Court to answer 
touching his contempt for non-payment of the costs, (a) 
It therefore contemplated his being brought up before 
the Court, in order that the Court might make an order 
^of his committal. Not having been brought up (i), he 
^Qght to be disdiarged. 

^* The Queen's Prison Act(c) only authorised the 

^^"^aosfer of such persons as had been committed; for the 

^^aiiden was to certify ** the names of the prisoners then 

'^ his custody, with the several causes and times of their 

^^^^•imitoiwjito.'* As Cobbett had not been " committed," he 

^^^8 wrongfully transferred, and is now improperly and 

^"^^Sthout 'sufficient authority detained in the Queen's 

-^^rison. He was, formerly, in the custody of the warden 

^^^^der a contempt of the Exchequer, but he has since 

"^^en discharged from it (rf). 

Mr. Turner, cmtriu First. On the 26th of March 
^ ^^47, a motion was made before the Lord Chancellor 
cliscliarge Cobbett from this process, that is, to set aside 
e subpoena, the service of the subpoena, and the attach- 
ent, and that motion was refused with costs. He now 
the particular grounds in his notice of motion; 
^ the object is the same, and a party cannot bring 
fr^rard the same motion from time to time by merely 
^sjrying the reasons. This Court, therefore, has no 
3^tmrisdiction to entertain the motion. 

2. He 

(«) See 2 Sm. Pr. 653. (3d (c) 5 * 6 Fie/, c. 22. 

^•) Id) \ Phiilips, 557. 

W 1FF.4.C.36, 






f 2: He has not paid the costs bf the fonner applito- 
tions for the same purpose, which have been repeatedly 
refused with costs. His oondnct is oppressive in the 
extreme. He has been offered his discharge, if he 
would undertake to bring no action ; but he renudna in 
prison haraetsitig the Phuntiff with these motions, which 
have already put him to an expense exceeding 6002i 


'. 3« As to the first pf the all^d irregularities. The 
order of the 30th of March was obtained on the ap- 
plication of the Plaintiff, who had the carriage of the 
order; and Ckbbett was thereby ordered to {nij the coats. 
There could, therefore, be no doubt as to whom theyt 
wer& payable, besides the snbpcma for costs expreaalj' 
directs them to be paid to the Plamtiff. As to the 
second objection, the only oases in which it is necessary- 
to bring up a party are upon contempt for non-^^pear- 
ance or for want of answer(a). As to the third, the 
act iq)plie8 to ** all the prisoners confined in the I^Teei 
Prison " (£), and the ^* warrant of commitment " means 
every process authorising a detainer. Cobbett was 
then under commitment by the Court of Exchequer, 
and was detained imdcr . the attachment out of this 
Court. He was properly transferred with all the 
causes of detfdner. 

Mr. Greene in reply. 

The Master of the Bolls. 

I have great satisfaction in finding the case of Mir. Cob* 
iett brought distinctly before the. Court, and to have 
the grounds so well stated and so forcibly and properly 
brought before the Court. Hitherto, it has been my 


(a) I W. 4. e. se. 1. 15., Rule 5. (6) 5 & 6 Firf. c. 22. «. 3. 



miffdrtunfc to' have the matter - stated in euch a way 1849. 

thatleonld never anderstand wbat.he was aiming at, 

but I now know what 16 Bought^ and the reasons in sop^ 9. 

port of it. COBMTT, 

If I were merelj to consult my own inclination^ I 
Mi diKbarge him immediately, finding he has been 
detamed in eustody so long as nine years. I should be 
ghdthflt he suffered no more. But I must consider 
wbt it is my doty to do, having regard to the practice 
of the Coort, and to the rights of the Plaintiff. Mr. 
CMeU might long ago have been out of custody. His 
diidiaige has been offered him in Court, on his under- 
tddng to bring no action. I am quite ignorant why 
tlttt eondition was required on the one side, or why it 
wn dedined on the other. The parties not being able 
to come to an aeoommodation, stand on their legal 
lights, and I must, therefore, decide them according to. 
the established practice of the Court. 

In the first place, I think Cobbett has no right to* 
make this application- to me^ because the former appli* 
cttioiD made to me on the same matter was refused with 
costs, and those costs have not yet been paid. 

Next, I think, that as to most parts of this motion, it 
it substantially the same as that which was refused by > 
^ Lord Chancellor, and therefore I have not jurisdic- 
tioB to review his decision. I am glad, however, that 
the reasons have been so clearly stated ; and, after this 
ftgunent^ I hardly think I ought to abstain from stating 

My opinion is, that the subpcena was warrant^ by. 
t^ order. It; is not done with the precision it might ; 
but ih^ are many caaes in ' which the Court awards 







costs to be paid by a party iK'ithoiit saying to vrbom. 
One instance is, where a bill is dismissed with coets 
before the hearing: not a word is said as to whom they 
are to be paid (a). 

Then as to the attachment. It does not necessarily 
follow that a party is to be brought up into Court to be 
turned over to the Queen's Prison. The Act of Par- 
liament has provided, in certain cases, that a Defendant 
in custody shall be brought to the bar of the Coiurt 
within a limited time, in order that certain things may 
be ascertained. The act refers to particular cases, and 
this is not one of them, (b) There is a simple duty to 
be performed, namely, the pajrment of 41/1 Ss. deL for 
costs due from the party in custody to the party to 
whom it is ordered to be paid ; that duty remains im- 
performed, and Cobbett is therefore properly detained in 

The third reason urged is, that the act only applies 
to persons under commitment. The answer is, that 
there was a commitment by the Exchequer, and a 
transfer was legally made, and he is legally detained* 
There is an end of all argument on the subject 

I refuse this motion, because Mr. Cobbett is not 
entitled to make it, he not having paid the costs of 
the former motion. I tliink, that in substance and 
effect, this must be considered the same as the previous 
motion, and that it is not altered by the new reasons. 
The case came before me on certain reasons: it was 
then taken to the Lord Chancellor and by him aflirmed^ 
and now the Defendant comes before me for the same 
thing, but on different grounds. This cannot be done. 

(a) See Seton on Decrees, 

(b) 1 W. 4. r. 36. i. 16. 
Bule 5. 




April 2. 

nPHE testator gave the residae of his estate to three « Lawful 
■*■ trustees, npon trust, in case his daughter Mary **?|}® J VJ ' 
ahonkl marry, then ^^ to place out and secure the sum upon the*con« 
rf lOOOi in such manner, that she should receive the ^^Wldrra^ 
miaest thereof to her own sole and separate use during and that, to 
kcr life, and the principal sum of 1000/. to be divided S-^JSwl 
eqoallj among her lawful issue, but in default of such dren born 
ime, then that the said lOOOil should revert to, and p^^ofdis- 
agim make part of, the residue of his estate.^ And in tribution. 
cue his dnxighitr Marianne should marrj, then ''to 
]dace out and secure the sum of 700/., in such manner, 
that she should receive the interest thereof to her own 
8de and separate use during her life, and after her 
death, the said sum of 700/. to be divided equally 
among her lawful issue, and in default of such issue, 
tlie same shall again revert to and make part of the 
leudne of his estate.'* And in case his daughter Ann 
siioidd marry, he directed his trustees to place out 
the clear residue of his estate and effects, in such man- 
lier, that Us daughter Ann should receive the interest 
thereof to her own sole and separate use during her 
fife, and the principal money to be divided, after her 
death, equally amongst her lawful issue. And in de-> 
&nlt of such issue of his daughter Ann, in trust to 
place out and secure the same to the use of his daughter 
Mary for her life, and after her death, to be equally 
divided among her lawful issue, and in default of such 
issue of hb daughter Mary, in trust to place out and 
secure the same to the use of his daughter Marianne 
&r her life, and after her death to be equally divided 
among her lawful issue* 
Vol. XIL H «* And 


1849. '^ And In default of such issue of all his three daughters, 

^"^^^^ then, upon trust, to place out and secure the same 

V. to the use of his son John Eliot for his life, and after 

Edwards, y^ death, to be equaUj divided among his lawful 

issue; and in default of such issue, then in trust to 

divide the said residae and remainder of his estate and 

efiects, equally, among all the children of Thcmas Ran' 

doll and Janei Anderson, share and share alike, and m 

default of lawful issue of either of them, the whole of 

the said residue or remainder to be divided equaUj 

among the children of the other share and share alike." 

In a subsequent part of his will he made three several 
dispositions of money in favour of each of his three 
daughters for her life, ^* and to her lawful issue " equally, 
with gifts over ^' in default of such issue.^ 

' The daughters Ann and Mary died unmarried. iUa- 
rianne married and had seven children, three of whom 
predeceased her. 

By the decree made in this cause in 1829, the divi* 
dends on the whole residuary fund were directed to be 
paid to Marianne for life, or until further order, with 
liberty to any of the parties to apply. 

' Marianne died in December 1848, and a petition was 
presented on behalf of her four surviving children, for 
payment to them of the fund. One of the four sur- 
viving children had four children, on behalf of whom a 
claim was made to participate in the fund. 

Mr. Roundell Pabner, for the four surviving children. 
The decree, by directing payment of the dividends to 
Marianne for life, establishes this : — That the gift over 
** in default of lawful issue " is not too remote. 
• The 



The wcned ^' iemie " is used by the testator as equiva- 
kntto ^ children," in the limitation to the *^ children ^^ 
rf ITumuu Randall and Janet Anderson, and in default 
of ^ lawful issue " of either, then among the ^* children " 
of the other. "Issue" must, therefore, be construed 
"duUben" ia the other parts of the will, and either 
tbe firar torriving children, or they and the represent-* 
ttbes- of the three who are dead, are entitled to the 
fimd. He cited Sibley v. Perry (a), Farrant v. JNi^ 
«Wf(A), Hedges v. Harpur{c\ WiUiams v. Teale{d)j 
BUgemajf y. Munkittriek. (e) . 

Mr* Benskaw, Mr. Goldsmid, and Mr. Cotton argued, 
tkst the expresrion " issue " would let in the grand- 
ch3dren bom before the period of distribution to par- 
ticipation of the fund, as in Dalzell v. Welch (y), Head 
T. Randall {h), Evans v. Jones (t), and see Gale v. Ben- 
^{k\ Wyth V. Blackman. (/) 



Thej also cited JEUicombe v. Gompertz (m), and Car- 
ter y. BeniaH (n) 

Mr. R, Palmer 1^ in reply. 

Tke 'ULabteb of the BohLB. 

The expression ** issue " may either mean all the de- 
Midants in every degree, or it may be used in a more 
^ted sense. The word admits of different meanings, 


(a) 7 Ves. 522. 

(h) 9 Beavan, 327. 

(c) 9 Beavan^ 479. 

(<0 6 Hisre^ 239. 

{e) 1 Dr. 4" FFor. 84. 

(g) 2 iStMOfir, 319. 

(*) 2 F. * C. (C. C.) 2SL 

(i) 2Co%. 516. 
(/t) ifm^Arr, 681. 
(/) 1 Ves, sen.; 196., and 
Ambler, 555, 

(im) 3 ilfy. 4- O. 127. 
(n) 2 Beavan^ 551. 








and when used in an ambiguous or equivocal sense, its 
meaning ciust either be collected from the immediate 
context, or by reference to the mode in which it is used 
elsewhere in the same will. 

But besides this, the same word may, on different 
occasions, and from the immediate context, have two 
different meanings, and therefore great difficulties may 
possibly arise. 

But if, in the first part of a will, you have this word 
used equivocally, and nothing in the immediate context, 
to enable you to construe its meaning ; but, in another 
part of the same will, you have the ambiguity corrected, 
and find it used in a particular sense, the presumption 
is, that the testator has always used it in that sense in 
which you find it, where he himself has corrected the 

That I consider to be the case here. In the first 
part he has used the word ^^ issue " equivocaUy, and in 
the subsequent part he has used it in such a way as to 
shew that he considered the expression as equivalent to 
the word ** children." I think, therefore, we must as* 
sume, that he applied it in that sense in every part of 
his will. The word, I admit, may have a more extended 
sense, but on this will, I think the funds are divisible 
in sevenths between the children who are living, and 
the representatives of those who are dead. 



BAKER V. GIBSON. March 2Q,Z\. 

^HE testatrix, Ann Smith, had three daughters, a testatrix 
•'• Ann, Lydia, and Elizabeth. By her will, she gave ^»v>"e three 
tke produce of her real and personal estate to trustees, as gave one-third 
to one third to Ann for life, with remainder to her hus- J?j. ®*<^!*^*^' ^ 
band for life, with remainder to ^nn's children, with mainder to 
iwnainder to the other two daughters for life, and after- JesMctiveli^" 
wards to their children, with an ultimate limitation to ^ith cross- 
her (the testatrix's) " own next of kin and legal personal between them, 

mresentatives.'' ^»t^ «« ,. . 

* ultimate limit- 

ation to her 

She gave the other two thirds severally in a similar y'^ **a^pA^ 

way to Lydia and Elizabeth^ with similar limitations personal re- 

OYer, mutatis mutandis^ with an ultimate limitation " to S[^d"|hat^ the 

htr own next of kin and legal personal representatives,^^ class of next 

of kin was to 
be ascertained 

The testatrix died in 1807, Ann died in 1808, Eliza- ^\^}^^ death 

of the testa- 
kih in 1845, and Lydia, the surviving daughter, in trix, and that 

1846. None of the daughters had chUdren. The q ues- ^^^^ ^^""^ f 

*^ ^ joint tenants. 

tion now arose, who took the property under the ulti- 
mate Umitation to the testatrix's ^^ own next of kin and 
legal personal representatives." 

Mr. Turner and Mr. Rogers, for Craltree, the legal 
personal representative of Lydia and Elizabeth. There 
ue three questions : first, as to the construction of the 
words '' own next of kin and legal personal represent- 
ativeg." Secondly, as to whether the gift vested at the 
death of the testatrix or of the surviving daughter ; 
and, thirdly, whether the class took as joint tenants, so 
that the survivor became entitled to the whole. 

HZ On 



1849. On the first pointy they relied on Kilner v. Leech (a), 

^T'^^^'^ where, under an ultimate limitation to " next of kin or 

V. personal representatives in a due course of administra- 

tion, according to the Statute of Distributions," the 
next of kin had been held entitled to the exclusion of 
the personal representatives, and they referred to the 
Statute of Distributions (6), in which the term *^ legal 
representatives " was used. On the second point, they 
cited Seifferth v. Badham (c), Jenkins v. Gawer (rf), 
Allen V. Thorp {e\ Nicholson v. Wilson (y). Ware v. 
Rowland {h\ Holhway v. Holloway{i\ I^asbury v. Netc 
port{k), Smith v. Smith{l)y and Urquhartv, Urquhart{m\ 
where it had been held, that the class of next of kin 
was to be ascertained at the death of the testator, aa4 
not at the death of the tenant for life, and Say v. 
Creed (n), where the same general rule was admitted : 
the third point, they argued, had been determined in 
Withy V. Mangles in this Court and by the Houae of 
Lords (o), where the gift was to the ^'next of kin," 
and it was held, that they took as joint tenants. 

jVIr. J. ForsteTy for the trustee, objected, that the 
case could not proceed in the absence of those persons 
who were the next of kin of the testatrix at the death 
of the daughters ; but 

The Master of the Bolls said that this was un- 
necessary, as he considered that point now firmly 


(a) 7 Beavan, 202. and 10 (i) 5 Vet. 399/ 
Beavan, 362. (k) 9 Beavan^ 376. 

(b) 22 & 23 Car, 2. c. 10. s, 6. (/) 12 ^mont, 317. 

(c) 9 Beavan, 370. (m) IS Simotu, 613. 

(d) 2 CoUjfer, 537. (») 5 Hare, 580. 

(e) 1 Beavan, 72. (o) 4 ^fiat>aii, 358. and 10 C/.. 
(g) 14 Siinoni, 549. ^ Fm. 215. 
(A) 2 PAi%j*, 635. 


Mr. RoupeU and Mr. Webb, for the representatives of 

^nn, then contested the third point only^ arguing that 

^e next of kin took as tenants in common. They cited 

fVoodgate v. Unwin {a\ where there was a bequest to 

^. for life> and after her decease, to her children whea 

^Jiey arrived at twenty- one, and it was held, that the 

c^liildren took as tenants in conunon. They argued 

aJao^ that the gift being to the *^ next of kin and their 

legal personal representatives/' the testatrix intended, 

jui the event of the death of any one of the next of kin, 

-^Iiat her personal representative should take in her right 

by substitution, and that effect could only be given 

tlu8 by holding that they took as tenants in common. 



Mr. Turner^ in reply. In Woodgate v. Unwinj the 

€2liildren*8 shares vested on their respectively attaining 

"liweaty-one; and vesting at different times, they could 

ziot take as joint tenants; but here, the whole vested at 

the death of the testatrix. 


The Master of the Bolls said he would consider 
the question of joint tenancy. 

The Master of the Bolls said he had read the will, March 31 
ttd was of opinion that the next of kin took as joint 

(a) 4 SimonM, 129. ; but see StraUon v. Best, 2 B. C. C, 233. 

H 4: 



Jfril w. ELLIS r. MAXWELL. 

Retidiiarjr HPHIS cause, reported axteia), now came on for fur- 
P^^ . -■' ther directions. 

bequeathed m 

tnut for aU The testator William MajnceU, by his will, dated the 

the fms and , 

daughters of 25th of March 1818, devised his freehold estates to 

A. and B. trustees in fee, to the intent that his wife might there- 
f who were ' ^ '^ 

living), the out receive an annuity of 1000/. for her life, and his 

J|^J2 l!t ®^° •^^'^'* Maxwell (a lunatic) might have applied for his 

twentv-ooe, benefit, an annuity of lOOOt The testator directed 

payi^ or ^^ ^^^ residue of the yearly rents to be invested in the 

tranMBissible" public funds, "to the end that the same might become 

until the ^ . 

deaths of A. a part of his personal estate,** and to be disposed of in 

^{\ ^' t^ed ®^^^ manner as he should thereafter direct and declare 

powers of touching or concerning the same. 


Held, that the 

sons and And, subject to the charges, the testator directed his 

atuw^ng ' trustees to stand seised of his freehold estate, to the use 

twenty-one, ^f ^j^g g^^ aon of the body of his son John in tail male, 

acquired vest* ^ • i i i 

ed interests, with remamder to the other sons of his son John^ suo- 

^^^fs^f^ cessively in tail male, with remainder to his daughter 

future-bom Ann Lyte for life, with remainder to the use of the first 

that after at- ^^° ^^ ^^^ body of Ann Lyte in tail male, with other 

Gaining remainders over. And the testator directed, that no 

they were en- person should, under the limitations and trusts afore- 
tided, in the g^y 
life of A, and ' 
^^o payment (a) 3 Beavan, 587. 
of their shares 
of the income, though not of tlie capital. 

The rents of Irish estates were directed to be accumulated and become part of 
the personal estate. Held, that although the TkcUutson Act did not apply to Irish 
estates, yet that it applied to the rents, as invested from time to time, and that although 
the rents, which ought to be considered as corpvt, might be invested for more than 
twenty-one years from the testator's death, yet that the income thereof could not. 

As to the custody of plate left as heir4ooms, in the interval before any person be- 
came entitled to the possession. 



ni(]i become entitled to the lands in possession^ or to 
the rents and profits thereof, daring such time as any 
antecedent limitations remained in contingency. 

The testator then gave his personal estate to his 
trustees^ ^* upon the trusts after mentioned, for the bene- 
fit of all the sons and daughters of liis son John Max^ 
well and his daughter Ann Lyte, save and ej^cept a first 
bom or eldest son,*^ &c. &c. ; " and to that end, he 
diiected the trustees to transfer the trust funds unto all 
liis younger grandchildren, equally to be divided be- 
tween them. Of and when being sons they should attain the 
age of twenty-one years, or being daughters they should 
attain that age or be previously married, it being his 
will, that each of their several shares and interests should 
become vested at that age, or the preuous marriage of 
dai^hters, though such shares should not become pay- 
aife or transmissible until after the demise of both his 
800 and daughters." And he directed, that if only one 
grandchild should live to attain such vested interest, the 
whole fund should go to such only grandchild. 

Power was given to the trustees, although the parents 
ihould be living, to apply the interest of each grand- 
duid^s '^presumptive share,'' even including an eldest 
ion's share, in their maintenance and education ; and 
the surplus was to be accumulated, and paid with their 
original shares when vested and transmissible. The 
Irill also contained a clause of survivorship of the 
Bhares of those who should die without having acquired 
a « vested interest" 


The testator then declared, that, after the decease of 
his son and daughter, as well as during their lives, his 
trustees should, until the share or shares of all his grand- 
children *^ should become vested and assignable, trans- 





fbrable or paymble," apply the dividends of the trosi funds 
towards the maintenance and education of every such 
child and diildren respectively^ including even the eldest^ 

The testator made his wife, Jane Maxwell^ his re- 
siduary l(^tee. 

As to his plate, the testator thus expressed 
'^ As to my plate, I give the use and enjoyment thereof 
to my said dear wife during her natural life only, and, 
after her decease, I give the same, in the nature 6£ aa 
heirloom, to the person who, for the time being, shall 
be in the actual poasesaon and enjoyment of my free* 
hold estates under the limitations of this my wilL" 

The testotor died the 8th (^ September 1818, leaving 
his widow, son and dau^ter, surviving. He po oaoo s ed 
real estates in IrekauL 

The testatiur's son Jakm MtuweB still renuuned a 
lunatic and unmarried. 

His daughter ^lu had four children, the eldest of 

whom attained twenty-<me on the 29th ot Septetmiep 

* 1839; the secoiid, on the 20th of 4prt7 1843 ; the tluid, 

on the 2nd of Jmme 1846, and the youngest, on the lOth 

oi Jammary 1849. 

The term of twenty-one years afW the testator^a 
death expired on the 8th of SepiewAer 1839. 

This suit, instituted by the trustees for the adminis- 
tratioii of the testatoar^s estate, came on for hearii^ in 
1841 {m\ when it was declared, that aoooidiii^ 

(•) Eepofted 3 



to the true coDStniction of the will, so long as thett 
ihoiild not be any son of John Maxwell born, Henry 
W. M. Lyte, as being the eldest son of Ann Lyte^ and 
the first person in esse entitled to the testator's freehold 
tnd leasehold estates upon the death of the survivor of 
John Maxteell and Ann Lyte, was to be considered an 
eldest son within the meaning of the wiU, and was not 
entitled to any share or interest in the corpus of the 
testator's personal estate, or of the surplus rents and 
profits of his freehold and leasehold estates by his will 
directed to be accumulated And it was declared, that 
during the period there should not be any son of John 
Maxwellj Henry W. M. LytCy notwithstanding he was 
lach eldest son of Ann Lyte^ and was the first person tn 
use entitled to the freehold and leasehold estates upon 
the death of John Maxwell and Ann Lyte^ had been, and, 
notwithstanding he had attained the age of twenty-one 
years, still was and would continue to be entitled to an 
annual allowance out of the dividends and the trust 
fiinds &a, until the death of John Maxwell and Ann 
Lfte. And it being by the said will directed, that 
although &C. [stating the power for maintenance and 
education], it was declared, that, regard being had to 
the aforesaid declaration as to the said Henry W, M. 
tjfU having no interest in the corpus of the said tes- 
tator's personal estate, the accumulation so directed was 
void from the 8th day of September 1839, being twenty- 
one years from the death of the said testator ; but such 
declaration was to be without prejudice to any question 
as to the right of any younger children of John MaJcwell 
and Ann Lyte, who being a son should attain the age 
of twenty«one years, or being a daughter should attain 
that age or marry, being entitled to immediate payment 
of a proportionate part of the siu*plus interest, &c. And 
it was declared (but without prejudice as aforesaid), that 
Jane Maxwell, as the said testator's residuary k^tee, 




1849^ WM entitled to the portion of the mSd Borpliis interest 
&e. M to whidi the nud directioo to aocumnlate was 
or mig^ thereifter be dedared to be Toid.** 

Certain enquiries were directed, which bdng com- 
pleted, the cause now came on for further directions. 

3Ir. Turner, Mr. Spence, Mr. RempeU, Mr. fFalpok, 
Mr. Bag»hawej and Mr. WiUeoek, for different parties. 

The questions were, 1st, whether the grandchildren 
(other than the eldest) took vested interests in tho 
corpus of the personal estate on attuning twenty-one, 
and whether, although their shares could not be paid 
until after the death of the testator's son and daughter, 
the income in the meantime ought not to be pud to 

2. As to the mode in which surplus rents of the Irish 
estates ought to be disposed of, which were not affected 
by the English act against accumulation (a), and had 
been, by the testator's will, directed to be invested and 
become part of the testator's personal estate. 

3. As to the custody of the plate between the death 
of the widow and the coming into esse of a person 
entitled to the actual possession and enjoyment of the 
freehold estates. 

Seott V. The Earl of Scarborough {b) and Sheddtm v. 
Goodrich (c) were cited. 


(«) 40 Geo. 3. c. 98. (c) 8 Vesey, 481. 



The Master of the Bolls. 1849. 

Some of the difficulties in this case seem to have been 

overcome at the former hearing; I have therefore no 

further occasion to advert to them. The question now 

jncused respecting the income of the fund which has been 

accumulated to the extent permitted by law is, whether 

-cJiat income, the further accumulation of which is for- 

l>idden by the statute, is now payable to the persons 

ho have obtained a vested interest in that fund. There 

a difference between a gift becoming ^* vested" and 

Ixooming ^< payable and transmissible ; " it may vest at 

me time and not become payable and transmissible 

til another time. The testator, I think, has, by this 

«v m, made a sufficient distinction between these two 

"fctiings, for he has directed specifically that the fund 

Rkould be vested at twenty-one, but not payable or 

"^jransmiaHible until the death of both his son and daughter. 

'J-Hie question then is, what is to take place between 

't^lKwe two periods of time ? 

The children were all infants at the time of the tes- 
tator's death; there was therefore apparently a long 
ikiinority to be expected, during which their education, 
as weQ as their maintenance, was to be provided for ; 
9xA the testator has, accordingly, directed the income to 
be applied for that purpose. The gift is to be vested 
in the children at twenty-one, although not to be pay- 
able or transmissible till the death of two persons, evi- 
dently for this reason, because the persons who were to 
become entitled, might, iu the meanwhile, be constantly 
vaiying, and other children might even be bom, after 
some of them had attained their age of twenty-one. 
This is a very good reason why the shares should not 
be payable or transmissible until the time which he 
pointed out, if he meant all hb grandchildren to take 
equal shares in the capital sum. But their interests 



being vcBted, and there being a direotion for mainte- 
nance and education, tbe question is, wby are we to 
consider that the testator meant that they should not 
have the fruits of the property after it became vested 
in them, other than those which he has expressly denied 

I do not venture to say that it is perfectly clear, but 
I think that the rensonable construction of this will ia, 
that I ought to consider that these children, who have 
all attfuned the age of twenty-one, and have obtained 
vested interests in the property, and who, according to 
the intention of the testator, were to be maintained out 
of it, ought now to receive the fruit of the vesting, 
with the exception only of that from which the testator 
has excluded them, namely, the payment of the capital. 

I think that, subject to the right of the eldest Boa 
to be muntiuned, as to which there may be a refer- 
ence, and subject to the contingencies which may in- 
crease the number of the class and diminish the shiues 
of each, I ought to declare that the ff£t is veated, and 
that they are entitled to have tlie income of it paid to 

The consequence is, that so much of the funds ao- 
cruing after twenty-one years from the testator's death 
and before the children respectively attuned twentyr 
one, as cannot be allowed to accumulate and has not been 
disposed of in maintenance, will belong to the widow oi 
residuary legatee. The amount will vary aa each ohild* 
having attained twenty-one, became entitled to the 
whole income of his shore ; but that will be very easily 

With respect to the real ertate, I confess there is more 

doubt about that than any thing ebe in this case. I am 



inclined to believe that the construction contended for 1849. 
» x*igbt. Considering that the real estate and the iu- 
of it is not subject to the provisions of the Thettus" 
Act (the contrary of which, nobody has contended 
y bow do the directions of the will apply to it ? The 
says distinctly, that the rents are to be invested 
become a part of his personal estate, and to be 
posed of in the manner directed by the will, that 
io be accumnlated : by which I understand, the in- 
is to be added to the principal, which is personal 
te. It is not because the rents fall into the personal 
ie every year that they are to be called the acou- 
laladon in the sense which this Court gives to the 
These rents are portions of the personal estate 
skc<3mred year by year: they become personal estate, 
s^vmd ue then to be dealt with like the other personal 
estate, that is to say, they are to be applied, so far 
^* they mayj to the purposes directed by the will, and 
^ any part of the direction of the will cannot be com- 
plied with, such as the direction to accumulate beyond 
^'^^ limited period, then I think the income will go in 
uie same way as the income of the other parts of the 
P^^^9€msl estate ; that is to say, to the legatees. 

I think that the rents £Edl into the corpus of the per- 
estate, and that the income of it will go, with the 
me of the other personal estate, to the grandchildren 
i^ttaining their ages of twenty-one. It is a portion 
tiie capital or personal estate, received from year to 
>, which cannot be allowed to accumulate under the! 
te, and therefore the income of it, which is a dif- 
thing from the accumulation, belongs to the resi- 
rry legatees. 

^As to the plate, it is to be left with the person who 
become first entitled to the possession and the en- 




joy men t of the estate. If that cannot be done by the 
trustees, I must order it to be placed In some place of 
security. If the trustees can take care of it to the 
satisfaction of all parties, that would be the most con- 
venient mode of dealing with it for the present ; if not, 
I must place it in some place of security, as, for instance, 
in the Bank of England. 

Abstract op Decree. 

Declare that the surplus rents and profits of the freehold and 
leasehold estates forni part of the corpus of the residuary personal 
estate, and ought to be invested ; and that the income is to be 
dealt with in the same way as the income of the residuary personal 

Declare that the trust for accumulation of the residuary personal 
estate, including the income from the investment of the surplua 
rents, beyond twenty-one years, void. 

Declare that, subject to the interests of the future children, the 
three younger children became respectively, on attaining twenty- 
one, entitled to vested interests in one third of the corpus of the re« 
siduary personal estate, including the rents ; but that such shares will 
not be payable until the deaths of the survivor of the testator's soo 
and daughter ; and that such interests are subject to letting in th6 
younger children of JoJtn Maxwell (the son) or any other children 
of Mrs. Ltfte, and to the interest to arise in favour of Henry Wil^^ 
ham Maxwell Lyte^ and subject to the right of maintenance of such 
children till they respectively attain vested interests. 

Declaration as to the rights of the widow to the surplus income 
from the end of the twenty-one years to the children respectively 
attaining twenty-one. 

Separate declarations that each of the three younger children, on 
attaining twenty-one, became entitled to one-third of the subsequent 
income of the residue, including the income of the investment of 
the surplus rents. 

Reference as to a suitable allowance to the eldest son Henry 
WilRam AL Lyte for the future. 






Y letters patent^ dated 13th Jufy 1513 (5 Hen. S.\ Ordinances, 

license was granted to William Wyggeston and S*^&c under 

others to found an hospital, to consist of two chaplains » powo* con- 

and twelve poor, to pray daily for the health of the royal charter. 

King and Katherine his Queen, during their lives, and ^^^ ^^^ ^^'^ 

also for their souls after their deaths, and also for the charity pro- 

bealth of the said William Wyggeston during his life, f^®^^ J^*"^ 

and for his soul after death, and for the souls of his act of parlia- 

progenitors and benefactors. The hospital, when J^g"^!*!^^^!"^ 

founded, was to be a body corporate, and license was nances made 

gifea to endow the same with lands. by ^.^ s., & ci 

held, under 

The hospital was accordingly founded, and it was stances, to be 

alleged, but not clearly proved, that certain ordinances unauthorised 
° . *^n^ "ot con- 

were made by the founder, regulating, amongst other firmed, and 

things, the mode of letting and restricting the term to ft^x^l^ 
tiiree years. of time, set 

A charity 
On was estab- 
lished in the 
reign of Hen. 8. for two chaplains and twelve poor. In 1572, Queen Elizabeth^ by 
letters patent, ordained, that the chaplains and poor " in omnibus et per omnia, se 
gerent, exhibcbunt, cumiserabuntur et el^gentur, juxta ordinaciones, r^ulas et 
i(iiciitt,in hac parte," to be made by A,^ B., and C, In 1574, A,, B,^ and C. ac- 
eordingty made regulations, giving to the master the whole management of the 
charity property, and authorising him to let on fines, and appropriate the fines to 
his own use. In 1576, an act of parliament confirmed the charter of 1572, and 
the ordinances made or to be made by A,, B., and C, By letting on fines, the pro- 
perty, which WHS worth 7000A a year, produced, on nn average, only 1200/., nearly 
half of which consisted of fines, and was received by the Master. The Court held, 
that this ordinance was not authorised by the charter or confirmed by the act of 
parliament, and that even if it were, still that this proceeding being shewn, in the 
lajwe of time, to be prejudicial to the objects of the charity, the Court would 
direct a new mode of management to be adopted. 

Vol. XIL / 


1849. On the 18tli Fi^ruary 1552 (6 EdvHtrdQ.), the letters 

patent of King Henry 6th were confirmed by inspexinau 

Attorn ET- 
General letters patent 

Hoipital. On the 7th of May 1572 (14 Ehx.), letters patent 

were granted, whereby, after reciting the letters patent 
of Henry 8tb, and that afterwards the siud hospital 
Tas lawfully founded by Wil^am tVyggeiton and en- 
dowed, and that the then chaplains and poor of the 
said hospital had besought the Queen to extend ber 
muniScence and favour towards them, the Queen, 
having respect to the glory of Ood, and wishing the 
continuation and augmentatioD of the said hospital, and 
that BO holy and pious a work of the said William Wyg- 
ffettoH should take effect, and, also, in order to continue 
the {Hcty of worship, and for the better relief and sup- 
port of the poor, afflicted with want, granted and de- 
creed, that the said hospital should for ever thereafter 
consist of two chaplains and twelve poor, &c. 

The letters patent then proceeded in the following 
terms : — " Volentes insuper qd tarn predict' Capellani 
et pauperes quam alii imposter in suis locis surrogandi aut 
nssociand cligend bivc adjungend in omnibus et per omnia 
se gerent, exhibebunt, comiserabuntf et eligentur, juxta 
Ordinacoes, regul, et statuta in hac parte, per dilec- 
tum et fidelem consaDguineum nostrum Heuricram 
Comitem Huntingdon et predictum consiliarium nos- 
trum Badulpbum Sadler Milit cancellarium nostrum 
DucatuB Qoetri Lancastr et delectum nobis Greorgium 
Uroniley Arniigemm Attoni nostrum Generalem Dn- 
cntus nostri predicti seu per eor superveiuentes imposter 
Send et in scriptis redigend specificand et declarand." 

These ordinances were to be sealed with the seals <^ 
the ducliy of Lancaster and the private seals of the sk^n 


if Chaacellor, and Attorney-General, or the sur^ 1849t 


^The aaid chaplains and poor were thereby made a -^ygoeston's 
\y corporate and politic, with power to sue and to Hospital, 
e lands &a with power to lease. And her sud ma^ 

tj Qoeen EKzabeth granted to the siud chaplains and 
ir, to the use of themselves and their successors, all 
1 ringnlar the manors &c. which had formerly be- 
ged to the said William JFyggeaian, and the rents and 

Jlenrjf, earl of Huntingdon, Ralph Sadler, and George 

Bromley afterwards, in 1574, made and ordained certain 

ata^tqtes and ordinances for the government of the 

hoejHtal, which, among other things, provided, that the 

niaster should have full control over all the rentSj 

revenues, goods^ and chattels of the hospital, and should 

harve full, sole, and perfect authority to conclude for 

the making of leases of the lands and possessions of 

^^^^ hospitals such lands to be leased only for twenty- 

^xte years or underj and not above, or for one, twOf 

^^ three lives, and not above; and upon such leases 

^ ^uch rent or more should be reserved, as had been 

^^**^inonly paid for the same within the space of twenty 

^^sxjtB next before such lease. That the master should 

^^ploy all rents, profits of wood, sales, and other money 

7^**Uig from the lands and tenements of the hospital 

^ ^lier than such fines as should be reasonably taken 

^^^ le00€0 thereafter to be made) to the only use and 

r^^^Hiiiodity of the hospital and the incorporation thereof, 

"^e same were not disposed to other uses by the said 

^^''^iiumces ; which taid fine» for leaseg, it should be 

^^^^11/ for the master of the hospital to take and convert 

fe« onm proper use, and to the increase of his living 

^^teto. The master was to receive also yearly, out of 

1 2 the 


1849. the revenaes of the hospital, the eum of lOt for ! 

r^^'^ atipend, and also 7*. of yearly rent out of the lai 

Obnbbil and teDementB appointed for the maintenance of i 

Wtgobston's 6'™°'"'^'' Bchool there, together with Buch tneadowi 

HcMpitsl. and hay as the master there used to have, and a hoi 

and certain other emolumenta. The Chancellor a 

, council of the duchy of Lancaster were to have i 

thority to visit the hoepital, with power to exam 

the faults and misbehaviour of the master, brother, 

poor folks, with power to deprive the master or brotli 

upon cause duly proved, either for wilful and imm 

8urable waatbg or consuming any of the lands, te: 

ments, possessions, or goods of the s^d hospital, 

reason of unprofitable and outn^eous leases, or wi 

Bales or otherwise, or for placing any poor within in 

said hospital for any bribe or reward or less for corr 


In 1576, further additions were made to the chai 
by Lord Huntingdon, out of which certain payme 
were to be made to the schoolmaster of the Free Sch 
at Leicester, and to certain scholars, and to the mas 
chapUin, and poor. 

By a private act of parliament passed the 18 £, 
(1576), after reciting the foundation of the hospital 
William }Vyggeston, and the letters patent of 14 £. 
and the power tlierein to make ordinances, " for 
confirmation and establishment whereof, it was enact 
&c, that the said letters patent of the Queen and all f 
every the grants, articles, cUuses, provisions, authoriti 
jurisdictions, antt ordinances therein specified ■ 
all and singular the ordinances made 
to be mode by the said Earl of Huntingd 
Sadler, knighf, and George Bromley, or 
of them, according to the tenor of the ■ 


letters patent of the Queen^ should stand, remain^ and 1849. 
be good, perfect, available, and eflfectual in the law, to ^T^^^^ 
all intents and purposes, according to the purport, true General 
mtent and meaning of the same letters patent of the ^vggeston's 
fiwd Queen." HosphaL 

The present information, filed in December 1847, 

complained principally of the mismanagement of the 

charity property. The property consisted of above 

3,100 acres of land, the net rental of which amounted 

to no less than 6,88821 a year, but, by the improvident 

inode of letting, which had been pursued, an average 

^come of about 1200/. a year only was produced to 

^ne charity, of which about 532/. consisting of fines on 

^newals, were received by the Master. 

7he present information stated, that the annual value 
^* the charity property, including the coal mines thcre- 
^^*^<ler, was 10,000t per annum, that the leases were 
provident, that the hospital buildings were out of re- 
\ that the ordinances were an excess of the authority 
by the letters patent, and that even if the Court 
®*^oiild hold them not to \ye so, yet that they did not 
lorise the system of leasing, but that they, in fact, 
that the leases should be let at rack rents. 

TI?he Master, by hb answer, insisted on the present 
tice of leasing. 

r. Turner, Mr. Lloyd and Mr. W. Morrisy in support 
'the information, argued, first, that the ordinances, 
xegard to the mode of leasing, and to the right of 
Master to appropriate the fines to his own use, 
in excess of the authority given by the charter 
of" JEUzabethy and contrary to WyyyestorCs ordinances, 
^^^condly, that these ordinances had not been confirmed 

/3 by 


by the iiot of parliament, wbidii did not refer to then, 
but only generally to ordinances made according to the 
authority given by the letters patent ; and, thirdly, 
Vraanton't *^' '^ *'^* Bystem were now found detrimebtal to th( 
HoqHtal. charity, the Court had power to correct and alter it ; 
Berkhampstead Free School (a), Attorney-General y. 
Finch, (b) 

Mr. Roupell and Mr. Metcalfe, for the Hos^tal, 
and Mr. Jamet Parker and Mr. Bevir, for the present 
Master, argued, that there was no sufficient proof ol 
the existence of any ordinances ouide by ffyffffeHon tbt 
founder. That the purposes for whidi the charity 
was founded were superstitious uses within the Sta- 
tute of 1 Edw. 6. c. 14. ; Fittg v. Jamei (c). Attorn^ 
General v. TTie Fishmongers' Company {KnesewortKs 
Charity) (d) ; that the property became forfeited to the 
Crown, and was now subject alone to the charter ot 
Elizabeth, and the act of parliament confirming it* 

That the present mode of leasing was in conform!^ 
with the ordinances, and similar to that adopted in tho 
rcstnuning statutes of Elizabeth (e) ; Co. Lit, 44. ■. } 
and could not, after having been acted on for three 
centuries, be now altered. 

They aigued, that the visitatorial powers of the 
Duchy oi Lancaster ought not to be interfered with ; 
Attorney- General v. Smithies, (y) 


(a) i Fa. * B. 13*. <c) lUEUx. c. 10. 

(A) Unreported V. C. E. 8th (g) I JTeeit, 389. aod tU^ 

JtJg 18Ui Bnd iec fCotem v. ^ Cr. 135. ; and we AHom^m 

Hituumrih HmpUtd, % Vent. 506. Geneml t. Dtdteidi CclUge, 

(r) Ho6arl. lEI. Bea«an,2&5. toi iHniiiij f^ 

(4) V Bravan. Idl. i uid i MMf v. MwUe* CUbr, 


Mr. Trnmefi in reply. 1849. 

«.. -.-^ - , ^ Attorniy- 

The Master of the Bolls. Qenbral 


Although there are difficulties on some parts of this Wygoebtoh*! 

case ; yet as to what is to be ultimately done, I feel 

no difficulty at all. Here is a foundation for charitable 

purposes, some of which, no doubt, in their origin 

w-ere superstitious, and some were not: however the 

^w^hole property was devoted to uses pious or charitable. 

^his property now produces an income of 7000/. a 

year; but it has been so managed, that the income 

^ftxising from the property, without regard to fines, is 

650/. a year and no more, and upon an average of 

twenty-four years, the fines have amounted to 531/. a 

year, which have been received by the Master and 

supplied by him to lus own use, according to th^ au- 

t^liority which he not unreasonably thought was fully 

'v^ested in him. 

Now to suppose that a charity producing 7000/. a 
year shall be left with an income of only 1200/. a year, 
^nd that very nearly a moiety of the whole shall be 
c^pplied to the sole use of one member of the Corpor- 
ation, is a thing which I think can hardly enter into 
'tlie Imagination of any reasonable man. 

Some how or other, it must be put on a better foot- 
ing. I sincerely wish that all parties interested would 
concur in efiecting it : but greatly have I been sur- 
prised to find obstacles to relief raised by the Cor- 
poration, who of all others are the persons most in- 
terested in getting rid of the abuse. I cannot help 
thinking, that they have been in some degree misled 
both as to their interest and as to theb rights. That 
the Master should endeavour to retain for himself an 

/ 4 advantage 


1849. advantage which he has reason to believe was intended 

^u-^y-^ for him by the founder of the charity, is quite natural. 

(iKNKRAL He should be attended to with all the regard due to 

Wyogeston's ^ ™^"^ ^^^ ^ claiming his rights only ; but at the 
Hospital, same time, do not let the matter be misunderstood in 
tliis respect. He is doing this not for the benefit of 
the charity; but for tlie purpose of securing to him- 
self a very large income, to which he is entitled, if 
his argument be right. 

It appears that the charity was founded in the time 
of King Henry the 8th. After his death, the char- 
ters were inspected by King Edward the 6th, who 
added a confirmation of them at the end ; this could 
not extend to the superstitious uses ; but it is very pos- 
sible that the revenues intended for superstitious uses 
were'to be applied to the pious uses. It is not my in- 
tention, however, to go, even so minutely as the evi- 
dence here would enable me to do, into the investiga- 
tion of very obscure matters in the history of this 
foundation ; nor is it worth while, in my opinion, to do 
so ; but I certainly believe, that there were statutes in 
the time of Wyggestoriy and I think it extremely proba- 
ble, that those statutes restricted the power of granting 
leases of this charity property to an extent which it 
would not even now be thought advisable to do. 

In consequence of difficulties which had arisen, and 
for some reason or other, the full force of which I do 
not pretend to understand, it was thought proper, on 
the part of the charity and the persons interested in the 
charity, to apply to Queen Elizabeth for another charter. 
The charter gmnted by her recites the former letters 
patent, and then proceeds to say, that the then mem- 
bers of the hospital had humbly besought her, that 



would extend ''her royal munificence and grace 1849. 

upon them." It then proceeds: "We, therefore, ^ ^^^ 
' '^ ' , Attgrnby 

having respect to the glory and honour of the high God, General 
and wishing the continuance and increase of the hos- y^YQQMTov*» 
pital aforesaid, and that such holy and pious work and Hospital, 
intention of the said William Wyggeston be duly ef- 
fected, according to his wish, also for the continuance 
and increase of pious worship, and for the greater relief 
and support of the poor and helpless afflicted" — Those, 
therefore, were the objects. 

Now, without enquiring minutely why it was thought 
necessary to apply to her for a new charter and grant, 
bnt thinking it highly probable that there were uses 
which were superstitious and others which were not : 
thmking it probable that doubts had arisen whether 
those uses which were superstitious could be supplied 
hy those which were pious (which I think they might 
have been), it was thought right and expedient, on the 
put of the hospital and the members of the hospital, 
to apply to her for a new charter, which was granted 
for purposes all of which are charitable. Can there 
then be the least doubt, that the whole revenue of the 
whole property was intended to be applied to pious and 
charitable uses? 

The charter proceeded to give the power to make 
ordinances, which has been the subject of a very great 
deal of ingenious and learned discussion. My own 
opinion upon that clause is, that it did not give to the 
persons appointed power to make ordinances which 
were entirely to govern the property and possessions 
of this hospital. The members were, among them- 
selves, to do certain things according to the rules which 
w^re to be made. Now those rules have been men- 


1849. tioned two or three times over in the subsequent pro- 

^■^V^ ceedings. In the subsequent act of parliament no such 
Attorney- . . . . , . .11. j 

General interpretations is given to it as to imply that it extends 

^ ^' , to the entire and absolute management of the whole 
Hospital. property ; but rather to the rules which were to govern 
the house. That it was not to govern the whole pro- 
perty, and did not comprise the power of leasing, is, I 
cannot help thinking, demonstrated, by the subsequent 
introduction of a clause for the very purpose of giving 
a power of leasing. Power being given to certain 
persons to regulate by ordinances those matters which 
depend on the conduct of several members of this hos- 
pital, they made ordinances which extended a great 
deal further, for they gave the absolute government 
and chief management of the property and possessions 
to the Master, and at the same time gave him a 
power of leasing upon fines, which were to be applied 
to his own personal use and benefit. Certainly a more 
imprudent sort of thing, even if it had been allowed, 
could hardly be imagined, than to make him sole ruler 
of the property, to determine how much of the revenue 
should depend on fines, and how much on rent; he 
himself being entitled to apply the fines to his own 
personal use and profit I do not think it is necessary 
to go very minutely into that. 

It is now useless to blame the imprudence and im- 
propriety of the conduct of those no longer in exist- 
ence ; but the result is, that a revenue of 7000/. a year 
is reduced to llOOZ. or 1200/., half or nearly half of 
which is applicable to the sole use of the Master, and 
not to the poor people who are the objects of the 
cliarity, the object being the " relief and support of the 
poor and helpless afflicted." 



That 10 the result ; but upon the best construction 1849. 
which I can give to this charter, and looking at what is ^twrnbt 
done by the statutes purporting to be made in pursuance General 
of the charter, and thinking that act of parliament Wtogeston^ 
which afterwards passed did not confirm any thing HoapitaL 
more than that which was authorised to be done by the 
letters patent^ I am of opinioui that there was an excess 
of authority in making the Master the sole governor, 
and m giving to him the right of determining how much 
should be fine and how much should be rent, and in 
gifing him the right of applying the fines absolutely to 
Us own use. 

Even if it should appear to be otherwise, and that 
thb was within the power, nevertheless, if in the course 
of the 200 and 300 years, by acting upon the power, 
it has turned out> and is shewn by experience, to be 
{nejndicial to the objects of the charity, to the extent 
of giving an equal benefit to persons who are not objects 
rfthe chiurity, — namely, to the lessees, for it comes to 
^t, — then I think, that this Court could not avoid 
lAying, that the circumstances were so changed, that the 
uiterests of the charity and of the hospital required a 
&ew mode of conducting the business and affairs of the 

^t being my opinion, I think there must be a de- 

<^ration to the effect I stated before. It appears to 

^e, that the power given by the charter of Queen Eliza- 

^h did not authorise the regulations which have been 

^e, and which have turned out so prejudicial to the 

^^ty. With that declaration, refer it to the Master 

to approve of a scheme ; but as I presume that the duties 

of this Master, and the object he has for the good of 

^ hospital, ought to depend a good deal upon the 
* « 

visitors, the scheme must be adopted in communication 



1849. ivitli the visitorg, and with a view to having their con« 
7^"*"'^^^ currence. 




Hospital. ^^ Attomcy'General v. Crook , 1 Kcen^ 121. ; Aitomci/'Gencral 

V. Green, 6 Ves. 453. ; Attomet/' General v. Owen^ 10 Vet. 555. ; 

Attornetf^Gcneral v, Griffiths^ 13 Fipi. 580. ; Attorney'General v. 

Crow, 5 ilf^. 530. ; Attomey'General v. ifprr, 2 Pear. 420. ; Attor^ 

ney-General \, Foord, Q Beav.2'6%,\ AUorneyGeneral v. Pargetcr^ 

6 i^tfar. 150. ; Attorney 'General v. Brettingham^ 3 J^eor. 91. ; Altor- 

nei/' General v. Cross, 3 Afer. 524. ; Attorney' General v. Crook, 1 

inpew, 121. and Attorney' General v. Pilgrim, ante, p. 57. 

Abstract op Decree. 

July 28th, 1849. 

Declare that the statutes and ordinances of the Earl of Hun" 
tingdon. Sir Ralph Sadler, und George Bromley for the regulation of 
the hospital, so far as they relate to the government and manage- 
ment of the lands and the application of the revenues, and so far 
as they authorised the Master to grant leases and to retain the 
fines to his own use, were not authorised by the letters patent of 
the 14th Queen Elizabeth, and were not confirmed by the act of 
parliament of 18 Eliz. ; and that the Master is not entitled to re- 
ceive and take to his own use any fines of granting leases of the 
charity property. 

And it appearing that the present system of leasing the charity 
property upon fines is not beneficial to the charity, declare that the 
same ought to be discontinued. 

Enquire what lands belong to the charity, and to what leases 
they are subject. Enquire what is the clear income and the an- 
nual value of the lands. 

Account of the rents from the filing the original information. 

Enquiries as to condition of hospital. 

Settle a scheme, with liberty to the visitors to attend. 




THIS case came on upon demurrer to the whole A Railway 
K'11 company 

^"^- authorised to 

make a line of 

T 11 iA/»ii ^7«rx/. fifty-six milea, 

it appeared, that on the 2oth day of June 1846, a resolved on 

special act of parliament (a) passed, authorising the ^^^gon\y 

making of the Direct London and Portsmouth Railway, it, and to 

which, after reciting « that the making of a railway |!S!J!''''He|d; 

bom the termination of the Croydon and Epsom rail- that such a 

way at Epsom^ in the county of Surrey, to the towns jHegai, iioth 

of Portsea and Portsmouth, in the county of South- ^ against the 
_, _ ^ ,,. , 1 . landowners on 

omptaHf would be of great public advantaffe, by opening the line and 

an additional, certain, and expeditious means of commu- ^^e share- 
. . 1 . /. holders m the 

nication between the city of London and the town and company. 

port of Portsmouth and city of Chichester and interme- ^o JtahiSIn" 
^te towns and districts," it was thereby enacted, that railway acts 
the Companies' Ckuses Consolidation Act, 1845 (*), The fn'^t&n^"*^ 
Lands' Clauses Consolidation Act, 1845(c), and The templationof 
Railways Clauses Consolidation Act, 1845 (^), should be public |^>od 

incorporated with and form part of the now-statinff act, ^i «>mp[etjon 

J , ., • . i^ ° of the whole 

^d the subscribers were united into a Company for the work ; and 

purpose of making and maintaining a railway from the Inj^rfe're'^^hin 
Croydon and Epsom railway, commencing by a junction it sees that 
*kerewith in the parish oi Epsom in the county of Surrey, undertakinff 
^ the parish of Portsea, in or near to the town o( Ports- cannot be 
^outh, and the Company was thereby incorporated. A Railway 

The company is 
not like u 
(a) 9 & 10 yict. c, Ixxxiii. (c) 8 Vicf, c. 16. partnership 

{b) 8 Vict. c. 18. (rf) 8 Vict. c. 20. for general 

trading pur- 
P^t in which one portion of the business may be abandoned ; but it is a partiier- 
^'P Tor a public purpose, for effecting a work which it is a duty to complete. The 
^'Sittion to complete the work is co-extensive with the authority to make it. 


1849. The act afterwards recited, that the plans and seo- 

CoHBN^ *^^°® ^^ ^^^ deposited; and enacted, that subject 
V. to the provisions in the special and recited acts con- 

tained; it [should be lawful for the company to make 
and maintain the railway and works in the line and 
upon the lands delineated on the plans, and described 
in the books of reference, and to enter upon, take; 
and use such of the lands as should be necessary for 
such purpose. 

And it was enacted, that the railway should com- 
mence by a junction with the Croydon and Epsom ndl- 
way in the parish of Epsom^ in the county of Surrey ^ 
and should pass through the following parishes, extra 
parochial, or other places, or some of them (that is to 
say), Epsom^ &c. &c. &c., and should terminate in the 
parish of Portsetty in or near the town of Portsmouth 
in the county of Southampton, 

And it was enacted, that the railway should be com-^ 
pleted within five years from the passing of the act, and^ 
that on the expiration of such period, the powers by 
this or the recited acts granted to the Company for 
executing the railway, or otherwise in relation thereto, 
should cease to be exercised, except as to so much of 
the railway as should then be completed. 

A considerable sum of money was subscribed for the 
purpose of making the railway ; but no part of the line 
had as yet been made or commenced. 

The Plaintiff, an original subscriber to the under- 
taking, and now entitled to seventy-one shares therein, 
filed this bill on behalf of himself and the other 
proprietors other than the Defendants, against the 
chairman and directors, and the Company, alleging (as 




the Court considered with 8Q0ioient distinctnees,) that 1849. 
the Company and the directors had abandoned all inten- cohbji 
tioQ of constructing the railway from JEpsom to Parti" ^ v. 
mmihf — a distance of fifty-six miles, •<— and had deter- 
]iimed to make a railway which should extend from 
Ep9om to Leatherhead, being a distance of about four 
miles only. 

It all^edj that the Company and the directors had 
taken no proceedings whatever for the exercise of their 
compulsory powers of taking or purchasing any lands 
utuate between Leatherhead and Portsmouth ; and that 
the period within which such powers might be exercbed 
was then so nearly expired, that it had become almost, 
if not quite, impracticable to take and purchase such 
lands between those two places, as would be necessary 
for the purpose of the undertaking, if the whole line 
were to be formed. 

The bill alleged, that it was and is the duty of the 
Defendants to construct the whole railway, in con- 
Bideration of which the act was passed and its powers 
given, and that to apply the funds of the corporation 
for the construction of only a part of the railway 
Was illegal. It prayed a declaration, that it was not 
whin the power of the Company to make the pro- 
posed railway from Epsom to Leatfierhead only, and 
^t the funds of the Company could not be lawfully 
*PpKed for that purpose ; and it prayed an injunction 
from making the railway from Epsom to Leatherhead 
^rfy, and from applying the funds of the said Com- 
ply for that purpose, and from purchasing lands, and 
from entering into any contract for causing the said 
P^posed railway to be constructed. 

To this bill the Defendants filed a general demurrer. 



1849. Mr. Malins and Mr. Bovill in support of the de- 

'^^^^''^ murrer. It is now clearly settled, that so long as di- 
V. rectors and other public functionaries strictly confine 

Wilkinson, themselves within the exercise of those duties which 
are confided to them by the law, this Court will not in- 
terfere (fl) ; and as between the individual members of 
a trading corporation, if the acts complained of are 
within the powers of the governing body and capable 
of confirmation at a general meeting, they cannot be 
made the subject of a suit in equity ; Foss v. Har^ 
bottle (b), Mozley v. Alston (c), Lord v. Copper Miners* 
Company (rf), Cooper v. The Shropshire Union Railioay 
Company, (e) If it were otherwise, the ordinary affairs 
of any Company might be brought into litigation by any 
one dissentient, upon any one matter which might be 
determined by the general body, so as to bind the rest. 
In this case, the directors are acting strictly within 
their powers: their act authorised them to construct 
every inch of the line of milway ; the whole cannot be 
made at one time, but must necessarily be made piece- 
meal. They have authority to make the whole railway, 
and therefore authority to make all its pai*ts. 

[7%e Master of the Rolls. I recollect hearing 
Lord Eldon, in the case of Agar v. llie Regents^ Canal 
Company (^), most distinctly state his opinion, that if 
it were clear that the Company were unable to complete 
the whole canal contemplated by the Act, they could 
not laVfully begin any part of it.] 


(a) Frewm v. /wriwi, 4 MyU (d) 2 PhiWpt, 740., and I 

i5- CV. 5?54. Hall * Ttu. 85. 

(A) 2 Ilarc, p. 493. (e) V. C. K. Bruce, 22d Jan. 

(c) 1 PhUlipi, 790. 1849. 

(4O 1 Swan, 250. 


That was a case' between the Company and an inde- 1849. 
pendent landowner; but this is a case between the qohi» 
members of the same Company. The Court cannot v. 

enter into an examination of the means and prospects 
of the Company of completing the undertaking. In 
Sabnm v. Randall {a) j Lord CoUenharn held, that a 
person whose property was required by the Commis- 
noners under an act for improving the town of Cam-- 
Mgiy was not entitled to restrain them by injunction 
from taking the steps prescribed by the acts for obtaining 
posKssion of the property, until they had shewn a suf- 
ficient fund in hand to satisfy the price which might be 
Awnded to him, or until they had shewn the means by 
which they proposed to procure it. 

2. The Court must consider the effect of restndning 
the completion of a portion of the line. An injunction 
to prevent the making of a part must necessarily pre- 
vent the formation of the whole ; yet the Company, 
while under an injunction against making a part, may 
he liable to a mandamus from the Queen's Bench to 
compel them to make the whole line ; The Queen v. 
The Eoiiem Counties Railway Company, (b) The 
Company will also be subject to the remedies of parties 
with whom they have contracted to purchase, or to 
whom they have even given notice of their intention to 
tJce their land ; Brocklebank v. The Whitehaven June-* 
^Railway Company. (c) 

They also cited Ware v. The Grand Junction Water-' 
wr*» Company (rf). 


(a) 3 Mifl. 4* CV. 439. (c) 15 Simons, 632. 

{h) 10 Ad. if £. 531. ((/) 2 Rust, i Mt/l. 470. 

Vol. XII. K 


1849. Mr. Turner and Mr. Cole, contra, in support of the 

bill The question raised by this demurrer is not 
whether the directors can make a portion of the nilway* 
with a yiew to completing the whole, but whether 
having determined not to make fifty-two nules, they 
can apply the funds in making the remaining four miles 
alone. Acts of Parliament like these are passed on 
the notion that they so materially contribute ^to the 
public good as to make it even for the general benefit 
to violate the rights of property ; Gnty v. The £mr- 
pool and Bury Railway Company {a). They are *' oon- 
tracts made by the legislature, on behalf of every person 
interested in any thing to be done under them"(&); and 
Lord Eldon says of them, <<I apprehend that those 
who come for them to parliament, do, in efiect, under- 
take, that they shall do and submit to whatever the 
l^islature empowers and compels them to do, and that 
they shall do nothing else (6)." 

In The Mayor of Lynn v. PemheHon (e), Lord JEUom 
said: ^*In the case of Agar and The Regenfe Caniol 
Company, I acted on the principle, that where persons 
assume to satisfy the legislature that a certain sum is 
sufficient for the completion of a proposed undertakings 
as a canal, and the event is, that that sum is not nearly 
sufficient, if the owner of an estate through which the 
legislature has given to the speculators a right to caxry 
the canal, can shew, that the persons so authmaed are 
unable to complete their work, and is prompt in his 
application for relief, grounded on that fiict, this Court 
will not permit the farther prosecution of the under* 
taking. So in another case, a Mr. Taylor filed his bill, 


(a) 9 Beav. 394. (c) 1 Swanst 250. 

(A) Blakemores.TVie Glamor" 
Hantfnre Canal Companyy 1 Mi/l, 
Sf K. p. 162. 



fltatmg that» «t the time of Bubacribing, he expected 1849. 
that when he had paid the whole of his instalments, he cohen 
abonld find the canal complete; but that, with the v. 

mMMww mm 9^ 

present fand, it would not pass to the east of Hamp' 
iteadf and the Court thought him entitled to relief.'' 

In Cfn^ ▼• The Liverpool and Bury Railway Com-- 
fKfejf{a\ the Court said: '^ At one time the doctrine held 
m this Court was, that unless those who were enabled 
to carry on such a speculation could satisfactorily shew 
that they had the means of completing the entire under- 
taldng (the whole, and not a part of which was alleged to 
be for the public good), they should not be allowed to 
ioTade any man's property in the execution of a part 
o&ly of their undertaking." And the Court afterwards 
ob8enred(&): <^I am not at all clear that this difficulty 
Ottj not lead to a much more serious inconvenience than 
httyet been apprehended; and it was with that view 
that I adverted to the question arising on that which 
WIS the doctrine of the Court at one time, and which, 
for any thing I know, may be applied again ; viz. that 
if H be shewn that the plan marked out by parliament 
cinnot be executed, have the Company a right to pro- 
ceed at all with the railway ? If it be clear that par- 
hiinent intended a communication by railway from 
I^oerpool to Bury, and if it be also perfectly clear, that 
the line will be cut off, and that the whole of it cannot 
he effificted, has this Company a right, under such cir- 
<^iiQi8tances, to persist in their undertaking, and invade 
the property of individuals, when they are only autho- 
rised to proceed on the principle, that they are providing 
for the public benefit, by securing the whole line of 
communication ? " 


(«) 9 Seav. p. Sdi. (6) lb. p. 400. 



1849. It 18 on the faith of the due completion of the 

^"^T"^^^^ undertaking, that the l^iskture sanctions the act, and 

V, on the same reliance individuals become subscnben to, 

Wilkinson, ^^^j shareholders in, the undertaking. To make a mere 

fraction of a ndlway, and abandon the rest, is a yiola- 

tion of the engagement. Such an act is ultra virety 

and an illegal use of legal powers ; it b void, and not 

merely voidable, and is incapable of being confirmed 

as against one dissentient shareholder ; Preston v. The 

Grand Collier Dock Company (a). The case is similar 

to Natusch v. Irving {b\ Colman v. The Eastern Coun^ 

ties Railway Company (c), Bagshaw v. Tlte Eastern 

Union Railway Company (d). 

The Act explicitly states in the recital, the object of 
passing it, viz. because it " would be of great public 
advantage, by opening an additional, certdn, and expe-> 
ditious means of communication between '' London and 
Portsmouth. This object will not be fulfilled by making 
four miles of the railway between Epsom and Leather^ 

As to the mandamus, none would be granted if it 
were shewn that it would be impossible to complete the 
undertaking. Besides, if it be contrary to law to make 
a part of the railroad, why are the shareholders to be 
drawn into the consequences of an illegality, or into a 
speculative undertaking, which they have not contracted 

Mr. Matins in reply. 

T/ie Master of the Rolls reserved judgment. 


(a) 11 Shttoru, 327. (c) 10 Beavan, 1. 

(b) Gow OH Partnership, p. (</) 7 Hare, 114. and 2 H. 4r 
404. 4th ed. Tw. 201. 


2%tf Master of /Ae Bolls. 1849. 

This case is shortly as follows: — The Defendants, Cohen 
±he Ditect London and Portsmouth Railway Company, WiLKiNsoir. 
are constituted under an Act of Parliament, enabling 
-^hem to construct a railway from near Epsom to Ports^ 
wnouth, with the usual powers of raising a capital in 
shares, and of taking the lands required for making the 
xxMid. It was enacted, that the Lands Clauses Con- 
solidation Act and other acts for 1845 should be 
mncorporated in the act; and, moreover, that certain 
specified communications should be completed within 
±]iree years from the passing of the act. The act re- 
o«iYed the royal assent on the 26th of June 1846. 
■JLhe Plaintiff was an original subscriber to the under- 
-faiking, and is now entitled to seventy-one shares in the 
Cl^mpany. A considerable sum of money has been 
subscribed, but no part of the line of railway has yet 
l>een made or commenced ; and the bill alleges (in my 
oj^ion with sufficient distinctness) that the Company and 
LC Directors have abandoned all intention of constructing 
le railway from Epsom to Portsmouth^ which is a dis- 
t-sodce of fifty-six miles, and have determined to make a 
rsjlway which shall extend from Epsom to Leatherhead, 
being a distance of about four miles only. The bill 
i^Ueges, that it was and is the duty of the Defendants 
to construct the whole railway, in consideration of 
^Nrluch the act was passed, and its powers given, and 
tliat to apply the funds of the corporation for the con- 
Atraction of only a part of the railway is illegal. It 
pi^ys a declaration, that it is not within the power of 
ihe Company to make the proposed railway from Epsom 
to Leatherhead only, and that the funds of the Com- 
pany cannot be lawfully applied for the purpose, and 
plays for an injunction. 

K3 To 


1849. To this bill the Defendants have put m a general 

Co^^« demurrer; they must, therefore, be held to admit the 
V. facts stated, and to insist, that the persons who govern 

WILKINSON, ^j^^ Company have a right, under this act, to make as 
much or as little as thev please of the whole railway, 
and have a right to apply the capital raised by the sub- 
scriptions of the shareholders in constructing so much 
of the rulway as they think proper. 

I apprehend it to be perfectly clear, that the powers 
given by these acts are given only in the contemplation 
of the supposed public good to be obt^ned from the 
completion of the whole work authorised, and that it 
never is, or can be, deemed to be intended, that the 
powers would have been given on any less consideraUon, 
or any less obligation upon the parties to whom the 
powers are given. 

There are two classes of persons who may be affected 
by any deviation from that principle. The owners of 
the land over which the work is to pass, and the share- 
holders who have subscribed their money for the work. 

In the case of Salmon v. Randall {a\ the present 
Lord Chancellor shewed, that the principle laid down 
by Lord Eldon in Agar v. Regenfs Canal Company (ft) 
did not apply to the case then before him, and he com- 
mented upon its inapplicability, in some other circum- 
stances which he particularly mentioned ; but he statecl 
the principle as one which might be extremely import- 
ant in its application, and stated the ground of it as 
being, that where Acts of Parliament impose certain 
severe burthens on individuals, by interfering with their 
private rights and private property, for the purpose of 


{a) 3 MyL 4- Craig, 439. (h) Referred to in I Swan. 250. 



obtaining some great public good, if the Court Bees that 1849. 
the undertaldng oannot be oompletedf and therefore coonr 
tbat the public cannot derive that ben'efit which was 
to be the equivalent for the sacrifice made hy the indi- 
vidnal, the Court will protect the individual from being 
oompelled to make that sacrifice under the ciroum- 
stances, and until it appears that the public will derive 
the proposed benefit from it 

Upon this principle, I conceive, the Court is to in- 
terfere, when it sees, at a proper time and in proper 
circumstances, that the undertaking cannot be com- 
pleted, and the protection due to the owners of the 
land called on to make sacrifices for the public benefit 
is to be afibrded. 

The interference and protection are not to be made 
or aflforded upon surmises and conjecture, or upon 
occasions and in a manner in any way inconsistent 
with the powers given by parliament, with reference 
to drcumstances existing when the act passed, but 
only in circumstances arising subsequent to the act, in 
which it clearly appears, that the object which parlia- 
nient had in view cannot be obtained, and the consi- 
deration for which private rights were intended to be 
"icrificed has failed. 

But it is said, that no such protection ought to be 
*&rded to the shareholders^ who are bound by the acts 

of the company of which they are members. Let their 


K^toation be considered. Happily, on this occasion, I 
■^Te no need to take account of the gambling specula- 
uons, the cheats and dupes who have become so 
^torioos. I may, at this time, reasonably assume, 
that all parties have been and are acting bond ^fide, 
u>d then, a shareholder is a j^erson who has subscribed 

K 4 and 


1849« and pud his money^ no doubt on the faith of an 
^^^^^^^^ undertaking sanctioned by parliament, on the ground 
V. of its being expected and intended to produce public 

WiLKiifsoir. ijenefit by its completion : his object may be his own 
particular benefit or profit ; but his advances are made 
on a scheme, the whole of which must be considered 
as that which alone has been approved and authorised 
by parliament, which is to be conducted and managed 
in the way approved by parliament, for the end pro- 
posed by parliament, and for no other end ; and the 
governing body of which must be considered to have 
entered into the obligation to complete the work autho- 
rised. It is on these expectations that the shareholders 
become members, and I am of opinion, that they are 
entitled to have these expectations realised if they can. 

The company is not like a partnership for general 
trading purposes, in which one part may be enoon- 
raged, and another discouraged or abandoned, ac- 
cording to the contingencies of trade, and a general 
authority to use the capital to the best advantage, 
within a general authority to trade ; but it is a part- 
nership for a public purpose, for effecting a work 
which it is a duty to complete, and for which aloncj 
the capital is advanced in shares. The obligation to 
complete the work appears to me to be co-extensivc 
with the authority to make it. The acts contain nc 
authority to substitute a less work, or part of the 
whole for the whole, and if the governors or directon 
of the company take on themselves to determine 
that they will not perform the whole work, but appl^ 
the capital, collected on the faith of the whole worli 
being completed, in completing only a part of it, I am 
of opinion that the determination is without authority, 
and contrary to the provisions of the act of parlia^ 

I an 



I im clearly of opinion, that they act illegally as 1849. 
igainst the landowners ; and if there were not, as I ^^^^^"^ 
think there are, suflScient reasons for saying that they __ v. 
act illegally as against the shareholders, I should have 
been glad to hear an answer to the question put by 
}b,Cole — "Why are the directors to be allowed to 
inYolve the shareholders in an illegality, and the con- 
aeqaence of an illegality, towards the landowners." 

I need not speak of the consequences of allowing 
BQch authority. It is plidn that certain portions of 
the shareholders might defeat the authorised intention 
of all the rest, founded on the authority of parliament, 
and apply the funds in a manner quite different from, 
and even contrary to, the intentions of the contributors. 

On this oocaMon there is no controversy as to facts : 
the powers were given for the whole work : the Di- 
rectors have, as I must now take it, determined to per- 
form only a part. 

I am of opinion' that the shareholders are not bound 
l>7 that determination, and that there is or may be 
a right to relief in this Court. 

I must overrule this demurrer. 



June 12. 18. COHEN V. WILKINSON. 

It appeared HHHE demurrer in this case having been overruled^ 
Smoanvhad^ *^® Plaintiff now moved for an injunction to re- 
neitbo* the strain the Directors from making the proposed railway 
the^moins"*^ from Epsom to T^atherhead only, and also fix)m apply- 
nor any pro- J^g ^jxy of the ftinds of the said company for that pur- 
obtaining the pose, and from taking or purchasing, on behalf of the 
means, of Company, any lands for the purpose of making such 
the whole of proposed railway ; and also from entering, on behalf of 

Soi°Jd by *!>« «»>^ ««°»P*"y' '"t" »°y agreement for the purchaae 
their act ; but of any such lands, and from taking any other steps or 
tolLve^he^ proceedmgs for effecting any such purchase or pur- 

nieans and chases, and that they might be restrained from entering 

intention to . ^ . . t i_ i/» /• .i • j 

completes ^^^^ ^^ ^^S^^^Z* ^^ behalt ot the said company, any 

part only. contract or agreement with any contractor or other per- 
An mjunction ° - Ji j -i /^ 

was granted, ^n or persons, for causmg the proposed railway from 

at the mstance £;pgQj^ to Leather head only, or the work thereof, or any 
holder, in the portions of such railway or works to be constructed or 
SniJ/the executed, or relating thereto. 

company from 

fundsTif th^ AflSdavits were filed on both sides ; but it is only 
construction necessary to state the effect of them, as collected by 
only, or other- the Court, and on which its decision proceeded. From 

wise than them the Court concluded, " that, at the present time, 

with the view i i . i i . . i 

and purpose the company had neither the intention, nor the means, 

th ^"h^l *°^ nor any probability of obtaining the means, of com- 
pleting the whole line, under the powers they now pos- 
sessed. That they seemed to have the means and in- 
tention to complete a part only, and that they thought 



that thdr doing 8o would be advantageous to the share- 1849. 

The affidavits on behalf of the Defendants also stated, ^"*«''»«"- 
that they had entered into some contracts with land- 
owners on the line, and also with contractors for the 
works, and thej attempted to connect the Plaintiff with 
a rival company. 

Mr. Jhtmer and Mr. Coky in support of the motion, 
leBed on the decision of the Court upon the demur- 
rer (i), and argued, that it was now plain from the 
iffidavits, that the Directors intended only to complete 
the line between JEpsom and Leatherhead. That the 
compulsory powers expired on the 26th of June^ and 
rendered it impossible to complete the whole line, the 
Court ought to interfere, to prevent that act, which it 
had akeady decided, would be an illegal application of 
the funds of the Company. 

As to the alleged collusion, they said, that Colman 
V. The Eastern Counties Railway Company (c) was ex- 
imdy in point, for there the Plaintiff had been put 
forward by a rival company. 

Mr. Malins and Mr. TF. J. Bomll^ contrh. The time 
fer completing the railway has not yet expired, and 
there is no sufficient proof of the intention of aban- 
ckning the whole undertaking. Until the expiration 
of the time limited by the act, the Company are 
entitled to all the rights of a corporation, and to the 
opportunity of deliberating and proceeding by degrees 
snd in a manner most beneficial, in the completion of 


(a) See post, p. 149. (c) 10 Beavan^ 1. 

(b) AnU, p. i2& 




1849* the undertaking* The Court proceeded on this pruunple 
in Lee v* Milner (a), where before the completion of 
V. the term given to a canal company to complete the 

WiL.iN.oK. ^^^^ landowners resisted the purchase of their pro- 
perty, on the ground of a deviation from the parlia- 
mentary line. Baron Alderson said : — ** There is another 
ground^ also, on which I may proceed. At all events, 
it must be clearly made out that there is a final aban- 
donment of the parliamentary line. The Defendants 
are required to obtain the land within five years, and 
to complete the works in fifteen : there are, therefore, 
ten years during which they have a right to deliberate, 
and even to change any resolution they may have 
taken. How can the Court properly continue an in- 
innction against them to prevent their getting posses- 
sion of this land, when, for aught we can tell, they may 
strictly and accurately follow the parliamentary line 
after all? The Plaintiff must, therefore, shew, that the 
Defendants have not merely deviated for the present, 
but that they have finally abandoned the parliamentary 
line. This they have failed to do.^ 

The act recites, that it will be a great public ad- 
vantage by opening a communication not only between 
London and Portsmouth^ but also between ^^ the inter- 
mediate towns and districts.^ Why, then, aro the in- 
habitants of Epsom and Leatherhead to be prevented 
having their share of the public advantage to be derived 
from a communication between them? If the Com- 
pany aro bound to complete the whole, they are equally 
bound to complete all and every of its parts. 

2. The Court, in exerdsing its jurisdiction in grant- 
ing injunctions, will consider the balance of inconveni- 
(a) 2r.* CW. (£x.)6ll. 


enoe; Bigby y. TVle Chreat Western Railway Com- 1849. 
/«y(aX ^hcro the Lord Chancellor dissolved an ^'^^^'"'^^ 
iojanction granted by the yice-Chancellor Wigrami on v. 

the ground of the greater facility of indemnifying the Wilkinson. 
Plaintiff than the Defendant. Here the effect of grant- 
ing this injunction will be to prevent the Company 
taking any step towards making the railway, and 
Tirtnally to repeal their act They will be left open to 
bills for specific performance by the landowners, while 
a performance of their contracts would be a breach of 
the injunction: — they will be exposed to actions at law 
bj thor contractors for monies which they are forbidden 
to pay : — they will be liable to a mandamus to compel 
them to proceed in an undertaking. The Queen y. The 
Eoitem Counties Railway Company (b)^ which they 
are by the injunction restrained from doing : — and 
they will lose their compulsory powers, a damage and 
uyuiy which can never be repaired or compensated. 
On the other hand, the Plaintiff does not even allege 
anj damage to himself, or suggest that the proposed 
measure will be any thing but beneficial to every share* 

The Company may also apply to Parliament for ad- 
ditional powers, to relieve them from any temporary 

They also cited Salmon v. Randall (c)^ Ware v. Grand 
Junction Water^worhs Company (rf), and Wood v. North 
^ffordshire Railway Company* (e) 

Mr. Turner, in reply. Every provision in this act 
bas reference to the completion of the whole line, and 


(a) 2 PkUiiDt. 44. (d) 2 Ruu. J^ AfyL 470. 

(b) 10 Ad. 4- E. 531. (e) I HaU ^ TiveUt, 611. 
(e) 3 Mtfl. i Cr. 439. 







not of a mere fractioiL The construction of the whole 
was the purpose and consideration for which Farliar 
ment granted such extensive powers, and that only is 
the undertaking to which the Plaintiff has subscribed. 
It is now plain that there is no intention of completing 
that purpose, or of fulfilling the condition. The intended 
act being illegal, the Defendants cannot set up the 
consequence of that illegality as an answer to an appli- 
cation to prevent its continuance. K the Defendants 
have entered into illegal contracts, they must take the 
consequences of deviating from the powers oonfenred 
on them. 

The decinon in Colman v. The EagUm Counties 
RaUway Company {a) is distinctly in point, and it was 
followed, in this Court, by another of Colman y. The 
London^ Brighton and South Coast RaUway Company {b\ 
in which the Directors of the Kailway Ciunpany had 
onbarked 20,000il in the Continental boats, and not 
only was an injunction granted, but an order was made 
for bringing back the 20,0002. so embarked ; and that 
sum was actually brought back by the Directors into 
the monies of the Railway Company. 

The Master of the Rolls. 

I shall not decide this case until I have very care- 
fully read these affidavits. I think it due to the 
Company to do that. 

I renuun now of the same opinion that I was when 
the demurror was heard, — that a company constitated 
by act of parliament, with powers to construct a line of 
a certain length and leading from one place to another, 


(-) 10 


(^) rarcportrd. 


does at the same time enter into an obligation with the 
poUie, and with persona who subscribe to the under* 
takbg, to complete that line^ and that they are not 
entitied to use the powers given by the act of parliament 
far the purpose of constructing only a portion of that 
line. The bill allied that the Defendants were doing 
thity and the demurred admitted it ; and it was on that 
I OTemiled the demurrer. 






We have^ no doubts quite a different question to deal 
with now^ when we treat the subject upon evidence, 
and not on a formal admission by means of a demurrer. 
It 18 now alleged upon affidavit^ and not dearly denied, 
if denied at all, that the Defendants intend to apply 
the funds of the Company in the construction of a 
portMAi of this line only. It must be admitted, that a 
Court interfering in transactions of this nature, ought 
to have satisfactory ground on which to proceed. 

It is alleged by the Plaintiff, that it clearly appears 
in the result from the affidavits, that this Company does 
intend to proceed no further than Leatherhead, It is 
alleged, on the other side, in this way : — we have, by 
luitoward circumstances, been unable, as yet, to com- 
plete the line or any portion of the line : in fact, no 
portion of it is constructed : — we have got the means of 
oonstracting the line firom the junction at Epsom to 
^Mtherhead: this is a portion of the whole way, and 
^eiefore we are now doing that which we were em- 
powered to do by the act of parliament. Being em- 
powered to make the whole, we must have the power 
to make each and every part : the whole cannot be con- 
noted at once, it must be] constructed in portions; 
tnd this is a portion of the very line which we are 
binder an obligation to construct 



1849. It 18 said, that Courts of Equity will never interfere 

^^^^ with a Company of this kind, while it is acting within 

V. its powers. I think there is a fallacy in this. What 


are its powers ? The Company has the power to con-* 
struct each and every part with a view to the construc- 
tion of the whole : true it is that you must constmct 
each part separately, but although the Company has 
the power to construct each and eveiy part, succes- 
sively, with a view to the construction of the whole, 
does it then follow, that this is within the powers, if it 
be made clearly to appear, that they have no intention 
to complete the whole? Is a Company to be allowed 
to do this ? No case has gone that length. 

I am not going to decide the point at this moment, 
for I intend very carefully to peruse these affidavits, 
to see whether they afford the evidence which I ought 
to have of the fact, that this Company is unable, or do 
not intend, to complete the whole line. 

Jtrne 18. The MASTER of the RoLLS. 

I have seen no reason to alter the opinion which I 
expressed on the demurrer which was filed in this cause. 

A corporation created by act of parliament, having 
obtained authority to construct a railway from one place 
to another (as, for example, from Epsom to Portsmouth), 
and having, under their powers, obtained subscriptions 
and nused a capital under that authority, are, in my 
opinion, bound to apply the capital so raised in or 
towards the construction of the whole line; and are 
not entitled to apply the capital so raised in the con- 
struction of a part of the line only, any otherwise than 
as the construction of such part is necessary for and 



eonduciTe to the construction of the whole line, under 18 49. 
tie powers conferred by the act. Cohbm 

Ajdj other opinion would, as it seems to me, be 
entirely contrary to the principle upon which such 
poveis are given; and if it were established, that com- 
pmies of this sort had authority, without a view to the 
whole, or for the purpose of performing the whole, to 
perfonn such part only as they please or are able, of 
that which has been called their contract or bargwi 
with the public, I think the [consequences would be 
Tery dangerous to the public and to the shareholders, 
ud probably productive of very extensive deception 

I am well aware of the great difficulties which may 
oecor in exercising the jurisdiction of this Court, either 
in cases where the practicability or the intention of 
completing the whole work may reasonably be doubted, 
or in cases where there may be a reasonable doubt, 
whether the injunction of this Court may not possibly 
interfere with the execution of the powers conferred by 
&ct of parliament, or destroy a reasonable hope that the 
powers still existing may be exercised according to the 
inteotions of parliament. But, nevertheless, I must 
consider myself bound to perform my own duty, and 
to exercise the jurisdiction, if it does sufficiently appear 
to me, that the powers still existing in the Company 
ue intended and about to be exercised contrary to the 
uitentions of parliament, or contrary to the conditions 
on wliich the shareholders must be deemed to have 
Babecribed their capitaL 

I have considered the cases relating to this subject, 

nod particularly the cases of Affar v. Regenfs Canal 

Vol. XII. L Company 


\M9. (hmpait^ (a), Blaksmort ▼* CUamargmuhm Canal Cem- 
^T"^ pany (A), Lee v. Milner (c), &iAiu>fi T. Bandall{d), and 
«. 7%tf Queen v. Eastern Counties Railway Company, {e) 

WiuwNsoH. And if I were informed by the Defendiinti» that they, 
having or expecting to obtain the means of oonetmeting 
the whole line ftotn Epsom to BtHsnundk^ were now 
^>plying or intending to ^>ply the oi^ital raised far 
conBtmcting the whole line in and for the oon e traction 
of a part with a view to the whole, viZi of that par- 
tioular part which extends firom Epsom to LaUherkoad 
as a necessary part of and condnoiYe to the wholei and 
for the purpose of making and completing the whole 
line, which may and is intended to be completed under 
the powers now vested in the Company : — if I were so 
informed in a proper manner, my opinion is, that I 
ought not to interfore with the Company ) but if the 
Company now declme, or are unable to state distinctly 
that such is the esse, I think, that under the present 
drcumstances of this case, and on the applioatioa of 
the PlaintiiT, it is my duty to prevent, that which I 
must consider to be» an intended mia^qfdication of the 
subscribed capital ^ the Company. 

The act of parliament, intituled, '* An act for making 
a railway from the Cn^don and Epsom Railway at 
Epsom to the town of iV/sMovM, to be called * the 
Direct London and I^prtsmomth Railway,'" received 
the Royal Assent on the 26th of June 1846. No 
part of the railway has yet been formed, and in the 
early part of 1848, the Directors made an ^>pliGatioti» 
which was refused, to the Commissigners of Railways 


(«) Cked 1 Swrnui. 250. (d) SMyL^O-. iS9. 

(A) 1 3fW. Jt r. 154. (r) 10 Ad. ^ EiL 531 

(r) :? .If. Jf r. 8t4. ; « F. .V 


to extend the powers of the Act for the compulsorj 1849. 
poicbuse of lands for two yesrs beyond the period for 
which sach powers had been given to the Company. 

In this state of things, the Company have lately been 
lettre in nmlring preparations for the construotion of 
Aftt part of ihe whole line which extends from JEpsam 
to LttUherkead. It is, I thinh, truly said to be the duty 
of the Defendants to constmct the whole line from 
Epum to I^ttmouih, and the Plaintiff, a shareholder in 
the Company, objecting to the construction of a part 
osty instead of the whole line, — to the performance 
of a part only, instead of the whole of the conditions 
on which he subscribed for and became entitled to his 
•hvei^ -^ asks the interference of this Court, and by his 
hill has distinctly alleged, and in his affidavit has sworn 
to his belief^ that the Defendants intend to stop at 
Lmtkirhead, having no means or intention of going on 
to /Wffm0ic/A ; and he insists, that it was no part of the 
oonditiooB on which he became a shareholder, that the 
opitalt or any part of the capital of which he is a 
flhushoUer, diould be applied in the construction of a 
ndboad from Epscm to LeatherhecuL What is the 
ttBwer? No statement is made that the Company has 
or ttpeets to obtain the means of constructing the 
whole line, or now intends to apply the capital and 
finds iriiioh have been subscribed for the whole line, 
hi or towards the completion of the whole Hne. 

Bal Mr. Parsam states, very distinctly, how much 
Imo been done in the way of preparing for the construc- 
tion of the road from Epsom to Leatherhead, and also 
itstOB some things, from which, though it is not dis- 
tinctly stated, it is (as I collect from a subsequent part 
of the affidavit) meant to be suggested, that something 
^ been donei which may in some way contribute 

L 2 


1849. towards the constraction of parts of the line between 
Cohen Leatherhead and Portsmouth. 


Mr. Parson also states, that In his opinion It is, at 
this time, quite practicable to take and purchase such 
lands between Leatherhead and Portsmouth as would be 
necessary for the purpose of the undertaking, if the 
whole line were to be formed. It is difficult not to 
infer, &om this mode of expression, that Mr. Parson 
does not think that the whole line is to be formed. 

Mr. Wilkinson states his opinion to be, that the 
formation of the whole line would be a great public 
benefit, and he says, that neither the Company nor the 
Directors have ever determined not to make the nul- 
way from Epsom to Portsmouth^ although, from the cir- 
cumstances of the times and financial considerations, it 
has not been possible to proceed in or towards the 
making, otherwise than as before stated by Mr. Parson 
(i. «. as I understood it), further than in making pre- 
parations for constructing the railway from Epsom to 
Leatherhead^ and doing the other acts mentioned by 
Mr. Parson^ and to which I have referred. 

He then states, that the construction of the railway 
to the extent and In the manner in which it is now 
proposed to be constructed, (t. e. I repeat it, as I un- 
derstood it, from Epsom to Leatherhead only,) wiD, in 
his opinion, be very beneficial to the interests of the 
shareholders, and that it is much desired by the inhabit- 
ants of Leatherhead and the districts adjoining, and 
without suggesting that the Company has or is likely 
to overcome the difficulties which have made it impos- 
sible to proceed, otherwise than as before stated, he 
says, he thinks It very probable, that the whole of the 
said Direct London and Portsmouth Hallway or some 



ndlwftj in the same line^ will be made at some future 1849. 
period. v^-s^^g^ 



In this aflSdayit, much which is not said is, I con- Wilkinson. 
cdve, designedly left to inference and presumption; 
and if I should unfortunately have come to an erro- 
neous conclusion upon the evidence produced, I shall 
verj sincerely regret that the Defendants have not 
thought fit to express themselves more clearly ; but, upon 
this affidayit, cousidering not only what is sidd, but 
also what is omitted to be siud, and which I must pre- 
some would have been said, if it could have been said 
tralj, I think myself obliged to conclude, that, at the 
present time, the Company have neither the intention 
nor the means, nor any probability of obtaining the 
means, of completing the whole line, under the powers 
ihej now possess. They seem to have the means and 
intention to complete a part only, and they think that 
their doing so would be advantageous to the share- 
hdders. Granting that to be so, I am of opinion that, 
without the authority of another act of parliament, they 
have no right to apply the capital subscribed for the 
whole line to that limited purpose. The powers of this 
act of parliament were not given, nor did the share- 
holders subscribe their capital, merely to enable the 
Company to make profit (though for the benefit of the 
Bobsciibers themselves), nor to complete a particular 
portion of the work, neglecting the rest, merely because 
that particular portion is much desired by the inhabit- 
»t8 of Leatkerhead and its vicinity, nor merely upon 
the chance that, by some means or other, the whole line 
^Qthorised by the act, or some other line, will or may 
^ taaie at some future time. But the terms and cou- 
pons of the parliamentary work are otherwise defined, 
nd the powers given are to be exercised in making and 
completing the whole line from Epsom to PortsmoiUh, 

L 3 and 




and only for that purpose. And as the Defendants 
now> when a proper occasion seems to me to have ariseni 
are unable or unwilling to say^ that they are applying 
or intend to apply the funds or caj^tal of the Com- 
pany now in their possession, [for or towards that entire 
purpose, I am of opinion that I should negleet my own 
duty, if I did not grant an injunction to restrain them, 
not indeed in the words asked for in the notice of 
motion, but in the terms which appear to me proper 
from the nature of the case. I propose, therefore, to 
order as follows : — 

Let an injunction issue to restrain the Defendants 
from applying the capital and funds of the Direct 
London and Portsmouth Railway Company, or any part 
thereof, in or towards the construction of % railway 
from the Croydon and Epsom railway, commendng by 
a junction therewith in the parish of £psom, to Leather* 
head in the county of Surrey only, or any oAerwise 
than for the purpose and with the view of making and 
completing the said railway from the said Croydon and 
Epsom railway as aforesaid to the parish of Portsea, in 
or near the town of Portsmouth, in the county of South" 
ampton, pursuant to the powers now vested (or here- 
after to be vested) in them by act of pariiiament 

Afiirmed by Lord Cotlenhani^ 8th November 1849. I Mac. 4* Gor, 
481., and lHaU^T.56^ 





T^HIS WM a bill by a abareholder to have a question On motion fiir 
^ dedded. as to the right of the Directon to create th^D^iJbiit 

preferential shares. "^ tbst the 


Ifr. Tunur and Mr. Stwem, for the Plaintiff, moved "*"W *"» *» 

any coUatenl 
for the nmial order for production of documenti. purposes, 

alleging tiiat 
there were 
Mr. BoupeU and Mr. R. Palmer, cantrip resisted the proceediegs ai. 

nnoQikditional prodnotion* They said that an action at The'conrt^* 

W vis pending relating to these matters^ and urged ^?^^]^' ^ 

tint the Plaintiff ought, therefore^ to be prevented restrict the 

nabg the documents for any collateral purpose, as in ^'^^* 

Sichard9on v. HasHng8.{a) 

Mr. Turner^ The order in Riahardton v. Hastings 
wy by conaent 

The MiiSTEB of the Rolls. I cannot make any 
Ttttriction of the sort No case is made for it. 

(a) 7 Bemwn, 354. 

L 4 




July 19. 21. 

Where liberty HpHE demurrer of the Defendants having been al« 

in&^on ^^^^ ^y ^^ ^^^^ ^f ^^^ RoU8(a), the Plain- 

the allowance tiff appealed. 
of a demurrer, 
and no time is 

limited, the Qn the 29th of December 1847, the Lord Chancellor 


must be made delivered out his judgment^ allowing the demurrer as to 

vithin ^^^' parties, and giving the Plaintiff liberty to amend as he 
16th Order of might be advised (b), but without limiting any time for 

Art34. bring ^^i°g *^® amendment. The Plaintiff did not amend 
applicable. under this order; but, on the 29th of May 1849, he 
only of several obtained an order of course to amend, the only Do- 

Defendanu fendant who had answered consenting to the order, 
has answered, 

a second 

order to j^. ^^ ^^^^ moved, on behalf of three of the other 

amend cannot 

be obtained Defendants who had not answered, that the order to 

even w^Sihis" *°^®^^ might be discharged for irregularity, and that 
consent. the amended bill might be taken off the file. 

Mr. PrioTy in support of the motion. The Plaintiff 
not having amended within fourteen days, the first order 
to amend became void; 16th General Order of May 
1845 (c), and the 70th General Oi-der of May 1845 (rf> 
These General Orders apply to a case like this, where 
leave to amend was given upon the allowance of a de- 
murrer : Armitstead v. Durham (e). 


(a) 9 Beavan. 538. {d) Ibid. 309. 

(6) 2 Pimps, 705. (r) 1 1 Beavan, 428. 

(c) Ordmes Can. 287. 


The subsequent order to amendi obtained as of course^ 1 849. 

18 therefore irre^lar. J*^"*^'^"^^ 

" Baimbriggb 


Mr^ Turner and Mr. Webster ^ contra. The delay was Baddblev. 
oocaaioned by the necessity of obtaining representation 
to a party. This motion is made by Defendants who 
haye not answered ; and, therefore, as to them, it was 
regular to obtain an order of course ^* at any time 
before answer: " 64th General Order oi May 1845. (a) 
The only Defendant who had put in an answer consented 
to this order, and the parties moving cannot avail them- 
seWes of the existence of his answer, in order to imj)each 
an Older of course regular as to them (&). 

The point was not decided in Armitstead v. Durham* 

f [The Master of the Bolls. I certainly was of 
opbion, in Armitstead v. Durham^ that if, upon the al- 
lowance of a demurrer, more than ordinary time to 
tinend was required, it ought to be asked for.] 

Mr. Prior in reply. After an answer, only one order 
of course to amend is allowed, (e) 

Thi Masteb of the Bolls. 

I will consider the application. The only question 
^7 is, whether the Plaintiff should have obtained 
A special order, instead of an order of course. 

The Master of the Bolls was of opinion that no 
time having been limited to amend, the case fell within 


W Ord. Can. 308. (c) See Edge v. Duke, 10 

(*) But see Dunambe v. Beavan, 184. ; Hortley v. Faw 
J^» 10 Beawm, 273. ceU, Ibid. 191. 

Jufy 19. 







the provisions of the 16th Greneral Orderi Art 34, vnd 
70th Order, and the leave to amend became void at the 
expiration of the fourteen days ; that the Phuntiff might 
either have applied specially to extend the time or for 
a special order to amend, but that the order of ooune 
was irregular. He discharged the order. 

Juiy 21. The order was discharged with costs ; but the De- 

fendants consented that the amendments should stand. 

Juljf 4. 
August 3. 

In re SMITH. 

r\N the 18th of December 1848, Mr. Foley obtained 
an order of course for the taxation of Messrs. 
SmitKs bills of costs. 

Messrs. Smith moved to discharge the order ; and in 

the alternative, that Mr. Foley might give security for 

costs. On the 27th of March 1849, the Court held. 

Held, that the that the order was not irregular, but directed Mr. Foley 

to give security for costs. No costs were given of that 

Upon a mo- 
tion to dis- 
cbarge an 
order of 
course to tax 
or to give 
security for 
costs, the 
Court or- 
dered the 
latter only. 

not, after- 
wards, by 
mere notice, 
abandon the 
orders and 
file a bill for 
.the tame 
nntter. Such 
DSfing how- 
ever been 
taken bv the 

client, they were stayed uattl be bad paid the costs consequent on the order of 
coarse and of the application. 

application (a). The Court, in delivering judgment, 

intimated, that questions might arise on the con* 

struction of the agreement between the parties, and 

also upon the construction and effect of the order, in the 

form in which it had been obtained, (b) 


(a) 1 1 Beav. 456. (b) Ibid. p. 461. 


Mr. Fdegy being adviaed that he could not obtain 1849. 

the rdief he soogfat npon petition, gave notice to 

Sattthf that he abandoned the order, but which 

laAued to accept, and, on the 22nd of May 1849, 

Sofey filed his bill agunst Messrs. Smith for the same 

l^gect as the petition. 

A motion was now made, on behalf of Messrs. Smith, 
take the bill off the file, or that the Plaintiff might 
J the costs of the order to tax, of the moticm to die- 
csberge, and of this fq^plication. 

Hr. Turner and Mr. fV. T. S. Daniel, in support of 
tl&« motion. FirBt» a party cannot take a second pro- 
o^aeding for the same matter, until he has paid the costs 
of^ the first, (a) 

fiecondly, the order of March conferred a benefit on 

the Defendants, vir., a right to security for costs. It 

was, therefore, incompetent to the Plaintiff afterwards to 

abandon that order or the order of December on which 

it was founded. An order cannot be abandoned and 

trcated as a nullity by mere notice, (b) If, in March, 

it liid been stated to the Court that Foley intended to 

abndtm the order of December, it would have materially 

dbeted liie question of the costs of that application. 

Ml Teed and Mr. C Webster, contrd. The suit 
WQoi be stayed, fi>r it has been found that the pro- 
ttoiiog by petition will not afford an adequate remedy ; 
iei was intimttted by the Court itself. 


(a) See AUree v. Hordem, (fi) 8ee Pearce v. Gray, 4 

^AMV.«i8.; and OitffieU w. Beawm, 127. 
Coiim. mii, p. 9\. 




No costs were iDCurred under the order of December 
before It was abandoned^ for no proceedings had been 
taken under it ; and as to the order of March, no costs 
were given. This application is, therefore, unnecessary. 

Mr. Turner, in I'eply. 

The Master of the Eolls. 

When the motion was made to discharge the order 
for taxation for irregularity, I was of opinion, upon the 
best consideration I could give the subject, that it was 
not irregular ; but I thought, that it was not calculated 
to secure to the party the whole relief asked by him. 
I therefore declined to discharge it, but directed that the 
Plaintiff should ^ve security for costs. 

I am not surprised, that Mr. Foley, finding he could 
not get all the relief he required, should have become 
desirous of abandoning the order and to file a bilL The 
question is, what he ought to have done under such cir- 
cumstances. In the first place, there was the order of 
December 1848, which contained a certdn undertaking, 
giving him a locus standu In the second place, he had 
strenuously contended for the regularity of that order, 
and it was with a view to its prosecution, that the order 
of March 1849 was made, which gave to the Defend* 
imts the benefit of security for costs. Had he then a 
risrht to take the matter into his own hands and abandon 
it without the leave of the Court ? I think not, and that 
he ought to have proceeded in a more formal manner, 
and by a formal proceeding, get rid of the orders. He 
ought to have come stating that he had discovered that 
the order would not afford him the relief he sought, and 
have presented the matter to the conaderation of the 
Court If that had been done, the case would have 
been conadered, and he would oertsdnly have had to 



pay the oosts of the order of December 1848. The con^ 1849. 
test in March only affected the regularity of the order 
of December ; Foley then prevailed^ and it was con- 
sidered r^olar; but the order of March proceeds on 
the order of December; and the instant you take away 
the foundation, then the question arises, whether so 
modi of the order as is beneficial to the other parties, 
is to be lost 

Fckjf gave notice that he abandoned the order of 
December: the other parties did not choose to accept 
the notice : were they bound ? My opinion is, they were 
oot bound to accept the mere^notice of abandonment of 
u order, and if not, they were entitled to have the 
order of JlforcA drawn up,'pas8ed, and entered. 

Ido not think I ought to order the bill to be taken off 
the file ; and the question then is, on what terms ought I 
to aUow it to remain ? If Messrs. Smith have incurred 
uy costs under the order of December 1848, they ought 
to be paid by Foley. He ought also to pay the costs of 
this application. As to the costs of the order of 
Marchf I will take time to consider. If, when I gave 
judgment, it had been intimated to me, that Mr. Foley 
hitended to abandon the order, I might then have said 
that he ought to pay the costs of that motion. I will 
consider it 

Tke Master of the Rolls. Angust 3. 

TIus was an application to take the Plaintiff's bill off 
the file, or that he might pay certain costs; and the 
^QesdoQ which remained for consideration was, what 
costs ought to be paid. The costs in question were : — 

1. The 


1849* 1. The costs of obtaiDiog an order of course^ to tax 

certain bills. 

2. The costs of a motion to discharge that order for 

3. The costs of the present application. 

I was of opinion that Mr. Foley ought not to be 
allowed to prosecute the suit without paying the costs 
of the present application^ and the costs, if any, occa* 
sioned by the order of coursci before the application to 
discharge it for irrq^ularity ; but I doubted, whether 
he ought to be required to pay the costs of the unsuo* 
cessful attempt to discharge, for irregularity, an order 
which was held to be reo:ular. On consideration, I 
think he ought not ; the costs of that motion being dis- 
posed of at the time when the order thereon was made, 
and being entirely occasioned by the application il 




T^HE ol^ect of the information was to establish the Order made, 
right of the Crown to coal-mines under the sea- f^, ,„ inapec- 
ahor^ and which, it was aU^ed, had been worked by *'?" "f «o«l 


the Defendants by means of shafts from the adjoming 

Mr. Turner and Mr. Maule now moved for liberty 
for the Commiasioners of Woods and Forests to enter, 
inspect, and examine the coal-mines of the Defendants, 
sod to take all necessary steps for enabling them to 
lake a perfect and complete survey and plan of the 
workmgs of the mines, so far as they might extend 
under the sea-shore, and an estimate of the quantity of 
co«l raised imdemeath the shore. 

Thejr cited Kytuuton v. TTie East India Company (a), 
31Je East India Company v. Kynaston (J), The Earl of 
I^nudak V. Curwen (c). Walker v. Fletcher (rf), and a 
^^oi Lewis v. James^ before Vice-Chancellor Wigram. 

^* Dickinson and "Mr.Goldsmithf for the Defendants. 

The Masteb of the Rolls said he had made a 
wnihr order in Maden v. Veevers (e), and granted the 

(a) 35imm. 248. {e) Reported, on other points, 

(i) tBU. (fi.S.) 153. 5 Beavan, 503. and 7 Beavan, 

{c) Ibid. 168. 489. 
(<0 IhH 172. 








Let the Commissioners of Woods and Forests be at liberty, on 
behalf of the Informant, at all seasonable times upon ginng reason* 
able notice, to enter, inspect, and examine by surveyors to be a|»- 
pointed by them, the coal mines now or lately worked by the De- 
fendants Janum^ &c. &c. by means of four several pits or shafts, Ar. 
&C., for the purpose of ascertaining, and so far as may be necessary 
to ascertain, how far seawards from the said pits or shafts the De- 
fendants have worked the said mines and every of them, (a) 

{a) Reg. Lib. 1848 A. fo. 1948. 

July 19, 20. 


Where autho- 
rity is given 
to take land 
for a public 
purpose, and 
pay the money 
into Court to 
be dealt with 
•* on petition," 
the ordinary 
jurisdiction of 
the Court to 
proceed by bill 
is not ex- 
cluded, and 
therefore a 
demurrer will 
not hold in 
such a case. 
An allega« 
tion that a 
party *• duly 
made her last 
will and tes- 
tament " is 
sufficient. It 
is not neces- 
sary to state 
the* signature 
and attesta- 

nnmS case came before the Court on demurrer. 
•^ The particulars of the Plaintiffs' claim are stated 
ante, (a) 

The present Plaintiffs^ having failed in their petition, 
filed the present bill. It stated the settlement made on 
the marriage of John Betts with Anna Maria Prince, 
by which certain freehold property was settled^ as to a 
moiety, on John Betts for life, with remainder to Anna 
Maria, his wife, for life, with remainder to their 
children, and, ^^ for want of such issue, to the use and 
behoof of the right heirs of the said Anna Maria Prince 
for ever." 

It then stated the Act empowering the London Dock 
Company to take the lands necessary for the construc- 
tion of the Dock (&) ; and, in case of incapacity, it was 


(a) In re The London Dock (b) 39 & 40 (?. 3. c. jdyu. 

Company^ 1 1 Beav. 78. (local and personal). 


directedi that the purchase-money should be paid into 1849. 

the Bank c^ England^ in the name and with the 

privity of the Accountant General of the High Court 

of Chancery^ to be placed to his account there^ *' Ex 

parte The London Dock Company,'' together with the 

name or names of such person or persons as thirteen of 

the Directors for executing the said Act should, by 

writing, signed by them, direct and appoint, to the 

intent that the same might be applied ^' under the 

direction and with the approbation of the Court, to be 

ngmfied by an order, made upon a petition, to be pre- 

ierred in a sununary way, by the person or persons 

who would have been entitled to the rents and profits,** 

ia the purchase of other hereditaments to be conveyed 

to the like uses. And in the meantime the money was 

to be invested, and the dividends paid to the persons 

Yho would have been entitled to the lands, (a) 

The London Dock Company having taken the pro- 
perty, a moiety of the purchase-money was, in 1802, 
pud into Court and invested in 9,059/. 3/. per cents., 
ud the interest was directed to be paid according to 
tlie tmsts of the settlement 

The bill stated, that the said Anna Maria Betts died on 
the 8th otJune 1822, without having had any children 
or child, and without leaving any brother or sister, or 
the issue of any brother or sister, her surviving, and 
that she left Sarah Fielder, widow, and James Vinell 
Edwards, an infant, since deceased, her co-heirs-at-law. 

T\mi John Betts died in February 1841, and the fund 
stitl renudned in Court to the account of the London 
Dock Company, J. Betts, and Roberts, the trustee. 


(a) See sect. 39. 

You XII. M 




On the 8th of July 1841| an order v^ns nind6 on tbB 
petition of the Defendant, Thomas Edwards^ i/rhereby 
it was referred to the Master to enquire, whether BetU 
and wife were living or dead, and if dead, when they 
respectiveij died, and whether they had any and what 
t^hild or children, and who was the heir-at-law of the 
aaid Anna Maria BetU, and who was the heir by the 
mother's side of James Prince^ the father of the said 
Anna Maria BetU. 

On the 22nd of October 1843, the Master made his 
report, and he found, that Thomas Edwards was the 
heir-at-law ex parU matemd\ of James Prince ; but he 
Certified, that no sufficient evidence had been laid before 
him to enable him to ascertain who was the heir-at-law 
of Anna Maria BetU. 

By an order, bearing date the 22nd of April 1843, 
and made in the said matter, it was ordered, that it 
should be referred back to the Master to continue the 
enquiry directed by the order of the 8th of July 1841, 
who was the heir-at-law of Anna Maria BetU^ and 
whether there was any heir-at-law of Anna Maria 
Betts other than the heir-at-law by the mother's side, 
by James Prince, the father of Anna Maria BetU. 

That the Plaintiffs and certain other persons had 
carried into the Master's office a state of facts and 
charge, whereby they contended and insisted, that at 
the time of the death of Anna Maria Betts, Sarah 
Fielder and James Vinell Edwards, were co-heirs-at- 
law of Anna Maria BetU, as co*parceners ; that James 
Vinell Edwards had afterwards died in the lifetime o£ 
Sarah Fielder intestate and without issue, leaving 
Sarah Fielder his heiress-at-law, and that Sarah Fielder 
had since died, having duly made and executed her last 






^v^li and testament, aiid thereby derised and bequeathed 1849. 
*U. her estate and effects unto the Plaintiff^ Sarah 
^^S^f and her brothers and siatenu 

That the Master had determined^ that he was not 
^^*»powered, by the orders of reference or either of them> 
to enquire or state whether or not Sarah Fielder^ if she 
vvere such heiress as aforesaid, had duly made and pub- 
liwl i ed her last will and testament, or who were the de- 
vuees under her will, and, further, that he was, by the 
cunder, limited to the enquiry as to the heir of Anna 
B^aria BMs^ living at the time of the making his re- 
port, under the last order of reference. 

That by reason of certidn conflicting evidence brought 

forward by James Waterlowy who claimed to be entitled 

in the Bank amiuities by virtue of some instrument 

executed by Anna Maria Beits, the Master had ex- 

pTQBBed his inability to report who was the heir-at-law 

dAmuL Maria Beits* 

The bill then set out the pedigree of Sarah Fielder, 
•od stated, that Sarah Fielder, in the year 1838, duly 
Mod? her last will and testament in writing, in the words 
aod figures following, that is to say, " 1838. Me, Sarah 
Fidier, gives to Mrs. Dee and her children all my rights 
itt tUs worlde." That Mrs. Dee was the mother of the 
PUntifl; Sarah Hyde. 

That the Defendant, James Waterlow, upon or shortly 
ifUr Ae death of Axna Maria Betts, possessed himself 
of £?ers documents, &c., relating or referring to the 
leil estate of Anna Maria Betts, and that he had, ever 
•noe Ae death of Anna Maria Betts, been actively 
eogiged as the agent of Thomas Edwards in searching 
^ rnddnce respecting the relatives of Anna Maria 

M 2 Betts, 


1849. Betts, and that he had In his custody &c. divers docu* 
mentSy pedigrees, &c., having reference to Anna Maria 
Betts and her relatives and property, and from which, 
if produced. It would appear, that Sarah Fielder and 
J» V. Edwards were the co-heirs* at-Iaw of Anna Maria 
BettSy but he refiised to produce the same. 

The bill prayed the transfer of the fund to the 
Plaintiffs and the Defendants, the other children of 
Mrs. DeCy in such shares as the Court should think 
meet, and that, if necessary, an issue might be directed 
to ascertain the heir-at-law of Anna Maria Betts. 

To this bill two of the Defendants filed a demurrer, 
on the ground, 

1. That the Plaintiffs' remedy ought to be by petition 
in a summary way, and not by suit ; 

2. For want of equity generally ; 

3. That the bill did not shew that the will was exe- 
cuted in the manner then by law required for the 
validity of devises of real estate ; 

4. That it did not appear that the will contained at 
the foot or end thereof any signature by Sarah Fielder, 
or any subscription by the attesting witnesses (if any) 
to the said will ; 

5. That It did not appear that the heir-at-law of 
Sarah Dee was a party. 

Mr. Lbyd and Mr. IIaddan» in support of the de* 

1. Where 


1. Where the le^alatuie has placed property in an 1849. 
omalous conditions and has created a new jurisdiction 
j:id prescribed a special and summary mode of proceed- 
g respecting it^ that mode must be strictly followed. 
JBaynes v. Baynes {a\ under Lord EldorC% Act, the 
Chancellor considered that the Court might dis- 
with a rule laid down by itself, prescribing the 
xxiode of acting upon petition ; ^^ but where an act of 
parliament has directed the application to be by peti* 
*^Mn» the Court has no jurisdiction except in the mode 
C^^vescribed.'' If difficulties should occur, the Court 
y direct an issue, as in Ex parte IssauchaucL {b) 
he Court will not allow the FlaintifF to proceed in 
expensive mode, so oppressive to the Defend- 

2. Though the will is set out in hac verboj it is not 
^^Xleged, with sufficient certainty, that the will was 

'operly signed or attested, as by statute is required, 
le rule of pleading at law is, that where a statute 
Lcrely alters the common law it need not be pleaded ; 
but where it creates the power, as in the case of a de« 
^ise, which at common law was not valid, the forma- 
lities required by the statute must be alleged to have 
been complied with (c), and you must take the pleading 
most strongly against the pleader. 

3. The heir-at-law who may contest the alleged devise 
is » necessary party. 

They also cited Parry v. Owen, {d) 


W 9 Vet. 462. (c) Stephens on Picadhtg, 

W 3 r. 4- CM (Ex.) 721. 367. 41 7, 416. (2d ed.) 

(d) 1 Atnbler, 109. 





Mr. Turner and Mr. Eldertauy in support of the bilL 
The authority to proceed by petition does not exdude 
the ordinary jurisdiction of the Court in the usual mode 
of proceeding, if the nature of the case requires that 
mode to be followed. Such jurisdiction can only be 
taken away by express enactment. A party^ especially 
in a complicated case of trust like the present, and 
where there are adverse claims, has a right to proceed 
-by bill, at the peril, no doubt, of costs. Here it was 
r^decided, on the former occasion (a), that the proceeding 
by petition is inadequate. The Plaintiffs were found 
unable to obtain a discovery, the production of docu- 
ments requisite to enable them to prove their case, and to 
•examine their adversary on oatL Of necessity, there- 
fore, they come, by lyilL Under the Trustee Indemnity 
Act, a party may come by petition ; but that does not 
exclude a bill, if that be necessary, to determine his 
.rights in a more formal manner. 

2. The bill alleges, that Sarah Fielder '^ duly made 
her last will and testament in writing." It must have 
been properly signed or attested, otherwise it would not 
have been duly made. The allegation is sufficient, for 
the Court will presume all the necessary formalities. 
In Rist V. Hobson (&), in a bill for specific performance, 
it was stated, that the agreement was in writing, and 
the Court presumed its signature. 

3. The heir-at-law has no interest, and therefore is 
not a necessary party. 

Mr. Lloydy in reply, adverted to the inconvenience 
which might result from a different conclusion being 


(a) WBeav, 78. 

(6) \Sm.^St.b^, 


tfriyed at on tlus billj and on the pending proceeding 1849. 
hy petition. 

The Masteb of the Bolls. 

The point nused has now been brought forward for 
the first time, not because it has not occurred before, 
bat because it has never, as yet, been thought neces- 
sary to bring it under the consideration of the Court. 

Under an act of parliament which passed nearly fifty 
years ago (the London Dock Act), certain property 
being sold, the purchase-money was brought into this 
Court, **to the intent that the money might be ap- 
plied, under the direction and with the approbation of 
the CSourt of Chancery,'^ &c. &c. It is obvious, there- 
fore, that this Court has a most important jurisdiction 
to exercise, before giving its direction or approbation, 
and no doubt this special reference was made to this 
Court as a Court of equity. For the purpose of re- 
liering parties from the expense of a suit, the act says, 
tbat the order may be made on petition in a summary 
way ; and from this it has been argued, that this direc- 
tion created a special jurisdiction, by which the general 
jaris^ction of the Court of Chancery is ousted, so as to 
prevent it determiidng, by bill, any questions wliich 
may arise. There ought to be no misunderstanding 
about a matter of this kind. Where the summary juris- 
^on is satisfactory, the Court, on a proper appli- 
cation, would not permit a proceeding by bill, if it 
appeared clear, that the jurisdiction might be properly 
exercised upon petition. 

Ifi therefore, after the death of the tenant for life, 
tbere had been no doubt as to who was the heir, and a 
Ulhad been filedi the person uselessly occasioning costs 

iVf 4 would. 


woold, unquestiDiiab]^, hare been ordered to pay thein> 
and, moreover, hj a proper application to the Court, he 
vould be prevented proceeding in the suit. I can have 
no doubt of it; but to say that the oidinaiy^ jurisdiction 
of the Court a excluded by the act, ia new to me, and 
cannot, I thiot, be reconciled with any principle. 

In all such casee, the Court will require to have the 
facts ascertained in a satisfactory manner, in the pre- 
sence of proper parties, and on proper evidence ; and 
although power is given to decide ia a summary way, 
yet the Court will take care that a matter is not de- 
cided on unsatisfactory evidence or argument, and for 
tiiat purpose it must not be deprived of its ordinaiy 
equitable jurisdicUon. 

In the present case, the ailment has hardly turned 
on the peculiar circumstances ; but I find, that the money- 
was pud into Court in 1802, directions were then given 
to pay the dividends to the wife for life, and for twentj 
years they were paid to her. After her death, an order 
was made to pay them to the husband, and he lived till 
1841 : so that it is about forty-seven years since tlie 
money was paid into Court ; changes have taken place 
in the persons interested ; and from the difficulty in ob- 
tuning evidence, the parties entitled could not be ascer- 
tuned. In July 1841, a reference was made to the 
lUaster to ascertain the parties entitled. Proceedings 
have taken place under that order, and considerable 
difficulty has arisen from the claims of persons ex parte 
pifernfi and ex parte matemd, and the Master has even 
iotiiTiatcil his opinion, that on the conflicting evidence 
before him, be cannot come to a conclusion. 

In that state of things this bill is filed. I am not 
disposed to say that the Flaintiflla ought to have filed it^ 


without more, because thej went into the ll^Iastcr's 
office under the reference. However^ finding a difE- 
cultj; thej file this bilL 

The consequence is^ that haying a substantial existing 
in the Master's office^ wliich may be prosecuted. 
Ley, at the same time^ file this bill for the same matter. 
X can conceive many cases in which^ upon a proper 
^application, I should interfere ; but what I have now to 
tennine is, whether this bill is demurrable, in con- 
luence of this Court having no jurisdiction. I cannot 
down that the Court has no jurisdiction ; on the 
^stnuy, I think it has. 



I must overrule the demurrer; but, thinking the 
Pl^tifis are not altogether right, I shall overrule it 
ithout costs. 

lion.— On the 5th o£ November 1849, the Master of the Rolls 
the proceedings in the suit until a fortnight after the Master 
should have made his report under the reference, and which order 
w«8 afirmed bj Lord CoUenham. See 1 Mac, ^ G. 410., and 1 Hail 




Jnly 24. PETTY V. PETTY. 

In cases of TN this case, a sum of 11/. 18«. Qd. three per cents., 

II * I 

very smaii ^^^ \l\s, cash, stood to the separate account of Jane 

sums, stand- ^ ^ ^ ^ 

ing to a sepa- Hurtley the infant. On her attaining twenty-one, a pe- 
in Court "and ^^^^^^ ^^ presented for payment, but the sum being bo 

where the small, was not equaU to bear the costs of mentioning it 

title is simple, . ^ 

the Court, to ^^ Court. 

save expense, 

will order ' 

payment upon Under these circumstances, 

petition, with- 
out attend- 
ance in Court. The Masteb of the RoLLS, being furnished wiUi 

the proper proof of the Petitioner's having attained 
twenty-one, made an order out of Court, whereby, 
upon production of an authority signed by Jane Hurt- 
ley for payment to Mr. H,j her solicitor, it was ordered, 
that the fund should be sold, and that after pajrment of 
3/. 5.V. to Mr. H, in full for his costs, the residue should 
also be paid to him for the Petitioner's benefit, he un- 
dertaking to pay the same to her forthwith, (a) 

(a) Reg. Lib. 1848 B, to. 1282. 



The ATTORNEY-GENERAL v. The Corporation Matf 4. 


rpHE Attorney-General took exceptions for insuffi- There is no 
dency to the Defendants^ answer^ which were equity, that 
iDowed by the Master. The Defendants appealed, and ^« Attorney- 

.. -, •^, _ . . . , /• t 1 , General IS not 

the Masters decision was afterwards confirmed by the entitled to re- 

Master of the Rolls, (a) A question was now raised, ^^*^^^*^ 

whether the Crown was entitled to the costs of the awarded to 

>««« proceeding. ol.S^ 

paid by De- 
Mr. BandeUy for the Defendants. The general rule had failed in 

$8, that the Crown is neither liable to pay (b\ nor exceptions to 
.. , , . T . . 1 . -ri 1 / »^ "^e Master's 

tntiucd to receive costs. It is said m Fowlers Exc. report. 

fr. (c), ** Where the suit immediately concerns the 
eights of the Crown, and the information is solely 
cxhiUted in the name of the Attorney-General, he 
neither pays nor receives costs." So, in Hullock on 
Cotts[(t)f it is stated as follows : — '^ It is said, that the 
Bng (and any person suing to his use, if the PlaintiiF 
he nonsuited, or a verdict pass against him) shall neither 
ply nor receive costs ; for, besides that he is not in- 
cluded under the general words of the statutes relative 
to costs, as it is his prerogative not to pay them to a 
object, so it is beneath his dignity to receive them." 
The same rule is stated in Chitty on the Prerogative 
(P- 310.), and in 3 Blackstone's Commentaries, (e) In 


(«) Ant^, p. 8. iow V. Greenhouse, 1 Biigh (N. S,) 

W See Rex v. Corum, 1 Ansir. p. 48. 
50. ; The Lord Advocate y. Lord (c) Vol. 2. p. 37 1 . 

^^ 9 a * Fm. p. 174. ; (d) P. 18. ; but see ib. p. 396. 

''^woii ?. AUoU, Cowper, («?) Page 400., and see Beames 

P* 367.,and CorponUhn ofLud- on Cotts, 83. (Ut ed.) 



1849. Tl^ King v. Miles (a), the general rule was acknow- 

r^^^^^'^ IcdgeiL The question related to the right of the Crown 
Attorney- . . ° ^ 

General to costs in scire facias to repeal a patent^ and the Court 
J!j said^ ^^ that that case fell within the general rule, that 

Corporation no costs were either paid or received where the Crown 
o NDON. jg ^j^^ prosecutor, unless in some particular cases, such as 
informations in nature of quo warrantOy by the spcdal 
provision of the legislature." Costs have been dis- 
allowed even in the case of a foreign sovereign, though 
successful, and '^ the reason given was, the dignity of 
the Plaintiff;" HulUU v. The King of Spain. (J) 

Secondly ; but if there be jurisdiction to give costs, 
this Court will only do so where there has been gross 
misconduct, or some vexatious proceeding on the part 
of the person opposed to the Crown. Lord Cottefi/urm 
observed, in the present case, when it came before the 
House of Lords upon the demurrer (c), ** I do not mean 
to say that a case may not occur, in which the Attorney* 
General would be liable to pay costs, but then where 
private parties have no chance of getting costs, and they 
have none here, the Court is cautious how it makes 
them pay costs. I think the judgment must be affirmed 
without costs." In the present case, there was a fair 
question on which to take the opinion of the Court. Li 
a case relating to the administration of the Duke of 
York's estate (rf), the Crown was successful upon ex- 
ceptions, but no costs were given. If any order were 
made against the Crown for payment of costs, it could 
not be enforced, (e) 

Sir J, Romilly (Solicitor- General) Mr. Turner^ and 
Mr. Maulcy for the Attorney-General. The rules and 


{a) 7 Term ReporU, 367. 

(b) 2 mi. {y, R,) p. 6i. note. 

(c) 1 House of Lordt CatA7U 

(d) Unreported. 

(e) See 9 CI. <$• Fin. 207. 



pnedce at oommon kw are inapplicable to courts of 
equitjr; they are founded on a different prindple. At 
oommon law, before the Statute of Gloucester, no person 
m entitled to recover costs of suit. 

Ibe law being altered by the statutes 6 Ed. 1. c. 1. 
lod 33 HetL 8. c* 39. (a), a party must, at law> brmg 
Ufflself within the acts ; this the Crown cannot do, not 
bang within them. In equity, however, the rule de- 
pends not on statutory enactments, but on the inherent 
joriadiction of the Court to do full equity between the 
parties (i); and in all questions of costs, the Court is 
not, like a court of law, bound by any strict rule, but it 
pooBeases and exercises a large discretion with r^ard 



of London. 

There are several instances where costs have been 
given to the Crown. Thus, in the case of T/ie King v. 
fiuMff(c), where a motion was irregular and out of 
Ae ordinary routine of the proceedings, the Court or- 
dered a party to pay the costs of the Crown, that it 
night operate as a check to such applications; and, re- 
ftning to the supposed rule, that the Crown never pays 
or receives costs, the Court said, << The rule does not 
extend to spedal applications by motion ; otherwise, if 
there were no such check, the parties would be coming 
every day to the Court with endless motions of this 
utore.'^ And in the note it is said, *^ The officer of the 
Court stated, that the rule did not apply to motions 
irluch were irregular, and tended to the interruption 
eftheusual course of proceeding.'^ . 

(«) Bat see 17 Bk. 2. c. 6. 
aui 15 iTen. 6. c 4. 
(i) See the Bmfiffi ^c. of 


Burfbrd v. Lenthall, 2 AtMm, p. 
(c) 13 Price, 279. 


CASES IN chancery: 




qf London, 

Again, in a case of the Attorney- General v. Zroy (o), 
in the Exchequer in Michaelmas term 1840, an in- 
formation of intrusion was filed against the Defendant!, 
who allowed judgment to go by default, and a fine had 
been imposed upon them, regulated by the value of the 
premises, of which they had retained the possession. 
The Defendants obtained an order nisi to reduce the 
amount of the fine, and on motion to make the ordei 
absolute, the order nisi was discharged with costs, to be 
paid by the Defendant Levy to the solicitors of Hei 
Majesty's Commissioners of woods and forests. 

In The Attorney-General v. The Earl of Ashbun^ 
ham (b)y the question was, whether in a charity informar 
tion under the 59 G. 3. c. 91. s. 1., the Court had jurisdiO' 
tion to order the Defendant to pay the Attorney-Genera 
his costs. Sir John Leach, after referring to the genera 
principle, that the Crown can neither pay nor reoeivi 
costs, says : ^* I find no such general principle in Courts o 
Equity. The Attorney-General constantly reoeives cost 
where he is made a Defendant in respect of legacie 
given to charitie»(c) ; and even where he is made aDe 
fendant in respect of the immediate rights of the Crowi 
in cases of intestacy : and where charity informatioai 
have been filed by the Attorney-General, costs hav€ 
been frequently awarded him in interlocutory matten 
independently of the Relator. And this supposed gene- 
ral principle, which is asserted by the Defendants, is 
not maintained by any decision or by any dictum which 
appears in any reported case. Collecting the law oi 
the Court in this case, as in others, from its practice, ] 
am of opinion that, although the Attorney-General] 
suing in discharge of his public duty, could never be 


(a) Unreported. 
(6) lSuH.tSt. 304. 

(c) SeeMoggridgt^r.Thmek 
t0cU,7 Fci.SS. 


nUidi^ to pay costs in a coiirt of equity, and that he was 1849. 
therefore obliired to name a Relator in matters of charitr* ^-^^r^"*^ 


yet it 18 not the role of a Court of Equity that he can*^ Oen srai. 
<^«t reoeive costs, and that the Defendant must in this ** 

pay his costs." CorixNvtiofr 

•f LONlKllf J 

In charity cases the Attorney-General always gets 
is oostSy and there is no difference between those cases 
^mA any other^ when the Attorney-General sues for the 
t of the public. 

In The Skinners^ Company v. The Irish Society (a), 

Attomey-Oeneral, who was made a Defendant, got 

costs ; and though HuUett y. The King of Spain is 

nt upon the dignity of a foreign sovereign, yet in The 

ef Brunswick t. The King of Hanover {b)^ the 

of Hanover had costs awarded to him. In this 

the Defendants made a deposit on setting down 

exceptions, for the very purpose of answering the 

; and the usual practice must therefore apply. 

2. If it be a matter of discretion with the Court, thiff 
a Tery proper case to exercise it. The Defendants 
.ve delayed for five years putting in a full answer to 
^lie information ; and, after failure in this Court and in 
^le House of Lords on the demurrer, they attempted 
^o raise the same objection by answer and afterwards by 
"^ray of appeal firom the Master's decision. Failing in this 
si^esl, they ought to bear the costs of their experiment. 

~ Mr. Bandell, in reply. The decisions at law do not 
depend on the Crown not coming within the statutes, 
l>iit on the ground of reciprocity, that a party ought not 


(a) 7 Bratwir, 593. 4* 12 C/. (b) 6 Beavan, 1., 4" 3 H. Ldt. 

* -R«.4«5. CVM.p.27. 





of London* 

to get costs if successful^ if he would not be liable 
to pay them if he failed : so it is put in The King 
V* Miles. There is no case in which the Attorney- 
General has been ordered to pay costs, and it would be 
difficult to find a mode of enforcing any such order. 
In the case of The King v. Hassell and The Attorney- 
General V. Levy^ the parties were seeking an in- 
dulgence. The Attomey^General y. Lord Ashbumham 
was a charity case, which is one of exception to the 
general rule. In TTie Skinners^ Company v. The Irish 
• Society, the contest was between those parties alone, 
and the Attorney-General was a formal party not assert- 
ing any right of the Crown or of the public, (a) As to 
the deposit, it was made under the urgency of the 4l8t 
Order of 1828 (b) as a security for costs if any should 
be ordered ; but it left the question of the right of the 
Attorney-General to costs perfectly open, that depoait 
was not intended and did not, in fact, determine any 
thing. The question raised by the exception was on the 
prerogative right of the Crown, to a discovery greater 
in extent than that to which a subject is entitled : it 
was distinct from that raised by the demurrer, and 
one which the Corporation was fidrly justified in 

The Master of the Rolls. 

The question now raised comes on in this form : — • 
Exceptions taken to the answer were allowed by the 
Master. Exceptions were then taken to the Master's 
report, which I disallowed ; but nothing was then said 
as to the costs. We are not, therefore, considering 
the costs of the cause, but the costs of a particular pro- 
ceeding in which the city of London has failed. 


(a) See Perkins v. Bradley, I Bumey v. Macdonaid, 15 Simoni, 
Hare, 234. The Mayor ^c. of 15. 
Gloucester v. Wood, 3 Hare, 149. (b) Ordines Can. 19 


In the next place I muBt observe, that because at law 1849. 

there may be a certain rigid rule with respect to costs, r^ll^. 

it b]r no means follows that it has become or should Gbneral 

be a etrict mle in this Court. It is not so. f^^ 


I_ . ,1 . xv» • of LONDOM. 

cannot suppose, that any one upon this occasion 

cm really suppose, that this suit was instituted by 
& Attorney-General for the personal benefit of the 
Crown. It is a public proceeding for a public pur- 
pose^ and must be considered with reference to the 
^ applicable in such a case. 

The case first came on here upon a demurrer, which 
^ns oyerruled, but the question of costs was not then 
decided. I confess there was a difficulty in this case, 
which made it perfectly justifiable for the Corporation 
^London, in all {air practice, to bring the question for- 
Wd in the form of a demurrer, and if I had had to 
d^e on the question of costs, I have no doubt in my 
own mind, that I should not have given costs against 
^ Corporation of Londoju The matter afterwards 
cune before the House of Lords, the decision of this 
Court was affirmed, and a question having arisen 
^ to the costs, the Lord Chancellor said, ^^ The At- 
torney-General does not pay costs. I do not mean 
to say that such a case may not occur, but where the 
'parties have no chance of getting costs, the Court b 
caotioas how it makes them pay costs." Their Lord- 
"^ps gave no costs in that case, and my persuasion is, 
^ quite independent of the rule as to the Crown not 
paying and not receiving costs, no costs would have 
^n given. I do not, therefore, consider that an 
•othority for the present case. 

The demurrer having been overruled, the Defendants 

were called upon to answer. They answered a large part 

Vol. XII. N of 


1849* of the bill> but they still objected to answer the re- 
V"^^^^^ mainder. I agree that the questioo, whether the De- 
Obnsral fendants should answer any pari upon a demurrer, is 
r^^ not the same as whether thej shall answer two or threo 
CorpontioQ particular parts ; jet^ in this case, I think that the prin- 
ciple upon which the demurrer was determined is very 
applicable to the principle upon which the exceptions 
were decided. However, the matter proceeded to the 
Master's Office, and the Master not only allowed the 
exceptions to the answer, but certified that the ooata 
ought to be paid by the Corporation of Landoru Here» 
then, was a direct certificate that they were to pay the 
costs of those exceptions. They excepted to the 
Master's report, and made a depodt, which, it has been 
aigued, was to satisfy the costs which might beomooe 
due from the Defendants. There was, therefor^ • 
certificate that they were to pay costs^ and a dqiorit 
towards the payment of further costs ; yet there^ was 
no complaint against the order for payment, and no 
ai^)lication to be reliered from making that deposit, 
but the matter was brought forward upon an acqui- 
escence in the certificate to pay costs, and the liabiUty 
to make a deposit 

I admit that all this might go for nothing, provided 
there were that strict and general rule, that the At- 
tomey*General should not receive costs because he 
does not pay them ; but then no such strict and general 
rule has been made out It is said to be a general 
rule in courts of common law, and I do not know 
any thing to the contrary; but here, instances are 
produced from the various books, in which the At- 
torney-General has received costs, such as, for in- 
stance, in charity suits, which are of daily occurrence, 
and the experience of us all knows it to be sa There 
being no general, rigid, inflexible rule>y that the Attor- 


ney^Greneral should^ in no case, receive costs^ I do not 
we how I can exempt the Corporation, in this case, 
from paying those costs^ which, according to the ordinary 
practice of the Court, they ought to pay. It might be 
ft question of very considerable importance in this and 
other cases how the practice might be as to the general 
costs of the suit ; but as to the costs of a particular 
spplication^ certainly those costs must be governed by 
the general rule of the Court, unless there be some 
ngid rule to the contrary to override that general rule^ 
and which there certainly is not. 





of London. 

I should be very sorry indeed to have to say, that 
the C(»poration of Lojidon had been guilty of improper 
pioeeedingSy for the purpose of delaying this suit. I 
^ not find myself under the necessity of doing that ; 
bot hore they have adopted a proceedings which, aocord- 
iBg to the ordinary rule and practice of the Court, 
i^dsn the party adopting it liable to pay the costs ; 
snd I do not see why the Corporation should be exempt 
from the ordinary rule of this Court in such a case. 
•Oils is in the nature of an appeal from the Master's 
"fioaioD, and the Court having held that the Attorncy- 
(^^oeral was right, I see no reason why the Defendants 
^dd not pay the coet^g. 

The Court also gave the costs of this application, but 
"^y were subsequently waived. 

^OTB.— Affinned by Lord Cottenham, Hth o(Januaty 1850. 





June U. 20. 

Where a fund 
stands to the 
general credit 
of a cause, it 
will not be 
paid out in the 
absence of the 
legal personal 
tives. But if, 
after decree 
and where 
the fund 
is clear, the 
executor dies, 
a supplemental 
bill is not 
always ne- 
cessary, for 
the fund may' 
be distributed 
on petition, 
upon the ap- 
pearance of 
the new per- 
sonal repre- 


TN this case, it was stated, that the bill had been filed 
-*■ previous to 1817 by three co-Plaintiffs, of whom 
two were now dead. Read Parsons^ one of the Plain- 
tiffs, was entitled to one third of the fund in Court, 
subject to the life interest of Lucy Parsons^ the widow 
and sole executrix of the testator. Read Parsons had 
assigned his interest to Dr. Pembertotu 

Lucy Parsons died in December 1848. 

It was now moved, on behalf of Dr. Pemberton (who 
was no party to the suit), that the surviving Plaintiff 
might file a bill of revivor and supplement within a 
limited time, or, in default, that he. Dr. Pemberton, 
might be at liberty to file any such bill, for the purpose 
of reviving and perfecting the suit. 

Mr. R. W. E, Forster^ in support of the motion^ 
stated, that the object of this motion was to perfect the 
suit, by bringing a legal personal representative of the 
testator before the Court, in order that Dr. Pemberton 
might apply by petition for payment to him of his share 
of the fund. He cited Dixon v. Wyatt (a) and Wastell 
v. Leslie. (6) 

Mr. Osborney contra. 

The Master of the Rolls. 

The rule is, that where a fand is standing to the 

general credit of a cause, it will not be paid out in the 

absence of the legal personal representatives. 


(a) 4 Mad. 392. 

{b) V. C. E. unreported. 


Sut after decree, where all the debts have been 
paid, where the fund has been cleared, and nothing re- 
ixiains to be done but to distribute it, if the legal 
I>er8onal representative dies, it is not always necessary 
to file a supplemental bill to bring a new personal re- 
presentative before the Court. The Court, seeing that 
all prior claims have been satisfied, may distribute the 
fund» on petition, upon the appearance of the legal 
personal representative. 






"When it cannot be ascertained who is entitled to re- 
presentation, the Court has even distributed the fund 
111 the absence of any legal personal representative, but 
only in a clear case and with considerable reluctance. 

This case must stand over, to see what had better 
be done. 

Note. — See Beard v. Earl ofPowis, 2 Vet, sen, 399. ; RoundcU 
^* Currery 6 Vetey, 250. ; Wright v. Mitchell, 18 Vetei/, 293. ; Black 
▼• Creighton^ 2 MoUoi/f 552, ; Alderman v. Baimitler, 9 Beavan, 5 L7,n. ; 
^ougA^an V. Godichall, 2 C. P. Cooper, 89. 





Articles were A FEW hours previous to the marriage of James 

executed pre- -^TA, gj^ggj^ Irtoin and Elizabeth Bevan. articles were 

V10U8 to a ' 

marriage, by executed between thcm^ dated the 29th of June 1843, 

husband and "^'^^'^^^^y It was agreed, that as soon as conveniently 
wife agreed, might be, an indenture of settlement should be made 
perty, estfiSe *^^ executed, by and between the said J. B, Irwin and 

and effects to Elizabeth Bevan, and all other proper and necessary 

which the 

husband or parties, whereby all and singular the real and personal 

wife °^^1^^ estate, property, and effects, then of or belonging to 

tnereaiter oe— 

come entitled, the said Elizabeth Bevan, or in or to which she might 

*^tt?ed t*^ h ^^^^^^^^^^ become interested or entitled, by any means 

uses as the whatsoever, should be conveyed and assigned to trustees 

impoint*" and ^^^^rein named ; to hold on such trusts &C., as Elizabeth 

in default, on Bevan should appoint, and in default for her for life, 

husband, wife with remainder to J. B, Irwin for life, with remainder 

and children, ^q i\^q{j. children ; and it proceeded as follows: — ** And 

At the time, 

neither bus- it is hereby agreed, that the said intended settlement 

band nor gj^^^jj contain power to chanffe trustees, and for their 

wife had any ... 

property, indemnity and reimbursement, and all other proper, 

WM inso?vent ^^ual, necessary and advisable clauses, provisoes, and 
and soon after agreements, and also a covenant on the part of the sidd 
took the ^ •^^ ^' Irtoi^y that all property, estate, and effects, to 

nefit ofthe which he, or the said Elizabeth Bevan mai/ hereafter 

Insolvent Act 

Property sub^ become entitled, shall be settled and limited to the same 

sequently de- ^g^ upon the same trusts, and for the same ends, in- 
scended on *^ 

him. Held, tents, and purposes, as aforesaid." 

as against his 

it was bound James B, Irwin and Elizabeth Bevan alone were 
by the articles, paries, and there was no attesting witness. 

The marriage was solemnised the same day. Neither 
party had any property at the time, and the husband 



was ooodderably indebtedf and the wife had nothing but 1849. 
Bome expeotationflb 

On the 6th of November 1843, J. B. Irwin took the 
benefit of the Inaolvent Debtors* Act, and it appeared 
from hb schedule that his debts amounted to 41332., 
ud hig property nil On the 2nd of January 1844, 
tbe final order was made, and his estate and effects, 
preeent and future, became, under the 5 & 6 VicL c. 1 16. 
^ 7., vested in the official assignee. On the 6th of 2>e- 
ttMfer 1845, the brother of James B. Irwin died in 
bdicL intestate, leaving James B. Irwin his heir and one 
of his next of kin. He thereupon became entitled to 
some real estates in Westmeath and Fermanagh in /r^- 
iasdy and to one-fifth of his brother's personal estate. 

The articles were not re^tered in Ireland until the 
15th of June 1846 ; and in order to procure their regis- 
tration, it became necessary to have an attesting witness 
to them. The parties thereupon drew a dry pen over 
thdr signatures, in the presence of a witness who at- 
tested the execution, and on that they were registered. 

Afterwards, the Westmeath estate was conveyed, by 
^ tmstee, in whom the legal estate was vested, and the 
husband, on the trusts of the settlement. The Fermanagh 
estate was also conveyed by the husband and wife, on 
the same trusts, and both those deeds were registered 
prior to the 12th of February 1847. The certificate of 
"^ appointment of the assignee was not registered until 
tne 15th o( February 1847, and subsequent to the con- 

^e parties proceeded to sell some of the estates ; 
»^^t a difficulty having occurred, in consequence of the 
^ignee having given notice of his claim, this bill was 
filed by the trustee of the marriage settlement, and the 

N 4 wife. 




wife, prajring that the articles and settlement might be 
established, and that the assignee might convey and 
assign the real and personal estate. 

Mr. Turner i Mr. J. J. Jervis, and Mr. Dunney for the 
Plaintifis. Under the articles, the wife was a purchaser 
for valuable consideration. They are perfectly valid even 
against creditors, Campion v. Cotton {a\ and bind the 
after acquired property. It is too late to contend that 
such general covenants are invalid. They have been 
repeatedly sanctioned. In Prebble v. Boff hurst (b), it 
was determined, that a bond given by a husband, on his 
marriage, to settle any hereditaments which, at any 
time during his life, he should become seised of, was 
valid. The case of Lewis v. Madocks (c) goes still 
further. There, a bond was given by a husband on his 
marriage, conditioned to convey all personal estate of 
which he should, during the joint lives of himself and 
wife, be possessed. The extravagant extent of settling 
every thing was strenuously argued, but Lord Eldon 
upheld the covenant He said (df), " It is very strong 
for a Court of Equity to say, that, because it is difficult 
to execute the covenant in particular cases, that may 
occur, therefore it shall not be executed. The same 
objection was there taken : is it to attach upon every 
chair and table, &c. ? That difficulty occurred equally 
in Randall v. Willis (e) ; but it was got over thus ; that 
if the Court finds a solid subject of personal property, 
they would attach it, rather than render the covenant 
perfectly nugatory ; though they did not know what to 
do with the argument shewing the absurdity of it" 

It will be said, that the articles are fraudulent and 
were intended to defeat the husband's creditors; but 


(a) 17 Ves. 263. (d) 8 Ves. 157. 

(6) 1 Swan. 309. (e) 5 Ves. 262. 

(c) 8 Ves. 150., nVct.iS. 


the wife was no party to or cognleant of any fraud, besides 
the fact of insolvency does not prevent a man dealing 
with his property for valuable consideration. The wife, 
who had expectancies, is a purchaser for valuable con- 
sidenition without notice. 

Beside?, there is no bill to impeach the articles : they 
stand valid, and cannot be set aside in a suit like this 
to enforce them. 

The articles and the deeds were registered before the 
certificate of the appointment of the assignee, and, 
therefore, according to the decision in Battersby v. 
^oekfart{a)j they have priority. 

Mr. Lewin for the husband, took no part in the dis- 


Mr. Flather for a disclaiming trustee. 

Mr. Hoare, for the administratrix of JSyks Valentine 
Inm, the brother. 

Mr.Roupen and Mr. Rogers^ for Greeny the assignee 
of James B. Irwin. 

First This is a covenant of such a nature, that it 
cannot be looked upon as a band fide transaction. The 
husband was in a state of hopeless insolvency at the 
time, and the object of the settlement was clearly to 
nfithdraw all future property from the paramount 
claims of his creditors. It was not a conveyance of 
present property, for he had none ; but a mere fraudu- 
lent contrivance, resting in contract, to relieve any pro- 
perty he might ever possess from the legal obligation 
of paying his debts, and to keep it nominally under the 

(a) 2 Jonet 4* L. 431. 




control of his wife. This is a fraud upon the law ; 
and a party claiming under it must come in pari pa»$u 
with the other creditors. 

Secondly. This is not a valid covenant capable of 
being enforced in equity. There is no case in which 
a covenant so unlimited and extravagant has been sup- 
ported. In Randall v. WiUis (a)y Lewis v. Madocks (i), 
Garthshore v. Chalie (c), Eardley v. Owen (d), PrMle v. 
Boff hurst (e), Logan v. Wienholt {g)^ the covenantor still 
retained some property, real or personaL It is invalid 
at law, being contrary to pubUc policy to allow a man 
not only to denude himself of all his present property, 
but to deprive himself of the right of acquiring any 
hereafter. It incapacitates him from any useful exertion 
during his life, and from following any trade or busi- 
ness; for immediately he had acquired an income oi^ 
purchased a stock for carrying on his business, it would 
that moment, in equity, belong to the trustees, and that, 
even after the death of his wife, for the covenant is not 
during the joint lives, but is unlimited. If this cove- 
nant be valid, the effect would be to make him a pauper 
for life, — to. place him in a position for which the term 
"slavery" is not strong enough; for during the whole 
period of his existence, he reserved to himself neither 
food nor raiment; his very apparel belonged to his 
trustee, and nothing had he of his own but his own 
naked person. Such an unreasonable covenant as this 
cannot be supported at law. It is like a contract 
in restraint of trade or injurious to the public weaL 
But whether it could or not be supported at law, it is 
a settled rule of this Court to use a liberal discretion 
in granting a s})ecific performance; in cases of unrea- 
sonable contracts, it declines to interfere, and leaves the 


(fl) 5 Vet. 262. (rf) 10 Beavan, 572. 

(A) 8 Vet. 150. \e) I Swan. 309. 

(c) 10 Vet 1. {g) 7 Bligh, 1. 


purdes to their remedy at law. Anon. (a)y where the 1849. 
marriage agreement ^^ was extreme, that the daughter 
and her husband would have more than the father (in- 
debted) and the mother, and two other daughters un- 
preferred would have left. The Lord Chancellor did 
not decree the agreement, but if the Plaintiffs could re- 
oorer at law he would leave them to that remedy." 

Thirdly. According to the true construction of this 
instromenty the property in question is not included : at 
all events, to a limited extent only. The real agreement 
was to settle the wife's estate only, and the intention of 
tlie sabsequent covenant was to bind the husband to 
settle the future acquired ^' property, estate, and effects " 
to which the wife or the husband, in her right, might 
become entitled. Again, the word ^^ entitled," not 
^^seiaed" is applicable to personal estate only. Lastly, 
James B. IrwitC^ property " present or future " in 
Great Britain and Ireland vested in his assignee, and 
beiiig subject to his debts, 5 & 6 Vict. c. 116. s. 7, 8, 9., 
Barton v. Tattersall {ti)^ he became entitled to it, sub- 
ject to the obligation of paying them. The articles 
created no specific lien on the property, and the wife 
must come in with the other creditors : Fremoult v. 

They argued also that the registration of the articles 
was informal, in consequence of the second execution 
of them after marriage. 

Mr. Turner in reply. Such covenants must receive a 
feasonable construction, as in Lewis v. Madocks^ where 
^all personal estate" was held not to include income, 
bat merely capital. 


(a) 2 a. Ca. 17. (c) 1 P. W. 428. 

(6) IB.^M.237. 




The Irish Begistration Act, 6 Anne^ c. 2. s. 4., waa 
referred to in the argument. 

The lilASTEB of the BoLLS. 

In this case we are not upon a bill to set aside the 
agreement for frauds or to rectify it, as founded on some 
mistake. No bill has been filed to set it aside, or to 
rectify it. I must therefore take the settlement as it is. 

The relief asked is resisted, on the ground that the 
covenant is so extravagant and so contrary to the policy 
of the law, that, ex necessitate^ it must be treated as 
fraudulent, and the wife, who has married on the faith 
of this agreement is to be deprived of the benefit of it. 
There is neither evidence nor allegation that she has 
participated in any fraud whatever. If the question 
here were upon the reasonableness or unreasonableness 
of such a settlement as this, a great deal might be said 
by way of warning and useful advico to persons about to 
enter into such contracts. This has not now to be con- 
sidered, because, in the absence of all fraud, the wife be- 
fore she married had a right to insist on these terms. I 
at first understood that the lady had property of her 
own ; but it is now stated that she had none ; so that 
neither of them had any property at the time. Thus 
circumstanced, they entered into an agreement, that 
whatever either of them acquired should be settled. 
There is nothing very unreasonable in that ; but then 
the terms of the settlement are, that all that either 
of them should become entitled to, should be subject 
to the power of appointment of the wife, independent 
of her husband. She did not think fit to marry except 
on these terms, and the husband, I presume, having 
confidence in the person he was about to marry, ac- 
ceded to them. 



However imprndent it may be to enter into such 
an agreement, I cannot, after all the cases that have 
occurred on this subject, consider thb as an agree- 
ment that ought not to be executed. I cannot find 
any such proof of fraud, or that it is so contrary to 
the policy of the law as to render it necessary for me 
to say, that the parties who have married on the faith 
of it, are not to have the benefit of it. It cannot be 
held that a person merely because he is insolvent 
cannot enter into a binding contract : it is every day's 
practice, however contrary it may in some cases be to 
fair dealing. 

Next, it is said, that the husband took the property 
subject to all his obligations, and that the trustee also 
takes the estate subject to them. I can find no precedent 
for that ; it would, perhaps, be more honest if it were 
held that he was only entitled to the property after 
payment of his debts. But that is not the law. A man 
may be entitled to property, which by a proper pro- 
ceeding may be made liable to answer his existing 
obligations, but he may prevent it by disposing of that 

It has been also argued, that the last covenant had 
reference to the wife's property only ; but the words 
expressly include all property to which he or she 
might thereafter become entitled. It is possible that it 
might have been so meant ; but I can only deal with 
the words as they are found on the instrument, and I 
must give effect to them. If that be so, has any thing 
been done to alter this, and vest the property in the 
asBignee? I think that if it is vested in the assignee, 
it 18 still bound by the obligations which the husband 
had previously created. 







Lastlj, it IB said, that there was no attestation at 
the time of its execution. That was unnecessarj, ex- 
cept for the purpose of registry in Ireland^ and the 
officers in Ireland have admitted it to r^stry on the 
tracing of the name, and nothing has been done to 
declare it invalid. If it were invalid, what would 1»- 
come of the other deeds ? 

Is there, then, any ground for defeating the rights of 
the wife under the terms of these articles? I think 
not I must make a declaration of the Plaintif&' right, 
and decree a conveyance. The Defendants must have 
their costs. 

Juiy 19. 

The trustees 
of a dissenting 
chapel mort- 
gaged it under 
their powers, 
and the deed 
contained a 
power of sale. 
The mortgagee 
conveyed it to 
A, JB,, and in 
a suit by the 
trustees, in- 
sisting that 
A. B. was 
mortgagee and 
not a pur- 
chaser from 
the mortgagee, 
hdd, that 
some of the 
were neces* 
sary parties. 


TN 1839, a piece of land was conveyed to trustees 
for a dissenting concrregation. The trusts declared 
were, amongst others, when required by the major part 
of the other subscribers for the time being, members of 
the congregation, to mortgage the property, and upon a 
like requisition to sell. 

The property was, in 1830, mortgaged for 600i, and 
the mortgage deed contained a power of sale. The mort- 
gage was afterwards transferred to Hawley^ who sub* 
sequently conveyed to Stant^ and he immediately sold 
the property to a railway company for 1100/. 

This bill was filed by five of the trustees against 
Stant and the remaining trustees, insisting that 8tani 
ought, under the circumstances alleged, to be con- 



ndered ft mortgagee of the property, and as such liable 1849. 


to aoooont for the difference between the amount due 
on the mortgage, and the 1 100/. for which the property i'. 

hd been sold* The bill prayed a declaration, that 
^ni ought to be considered as an assignee of the mort- 
gage, and not a purchaser of the premises under the 
power of sale, and for accounts ; and that the balance 
might be secured for the benefit of the trustees of the 
chapel as part of the trust estate thereof. 

The Defendant Stant insisted, that he was a pur- 
chaser and not mortgagee ; and he, by his answer, sub- 
letted, that the then subscribers, members of the con- 
gregation, were necessary parties. He stated he had 
been informed, and believed, that they amounted to 
twenty only. 

The cause was set down, upon the objection, for 
want of parties. 

Mr. Giffardy for Stant The subscribers are necessary 

parties, in order that a complete and final determination 

oi the rights of the persons interested may be made. 

If they be not made parties, and the Defendants should 

succeed in this suit, the absent parties will not be bound 

by the decree, and any of them may still take proceed- 

inga against the Defendants for the same purpose. He 

cited Bichardson v. H(i8ting8{a)y Roberts v. Tun8tall(b\ 

Mmiley v. Aliten {c), Harrison v. Stetoardson. (d) 

Mr. Turner and Mr. James Campbell, for the Plain- 
tifib. It is not necessary to make the cestuis que trust 
parties to a suit, inyolving a contest between trustees 


(«) 7 Beenmn, 323. (c) 1 PkU, 790. 

(h) 4 Hare, 267. \d) 2 Hare, 530. 




and third parties, (a) This is a case between mortgagor 
and mortgagee ; the trustees alone, who are the mort- 
gagors, might have filed a bill against the mortgagee 
alone to redeem, and there is no reason for framing this 
bill on a different principle. They cited fFallwortfi v. 
Holt, (b) 

Mr. Giffardy in reply. In a suit to redeem, all per- 
sons interested must be parties, (c) 

The Master of the Bolls. 

I do not think I have heard any answer to the argu- 
ment, that if the Defendant succeeds, he will still be 
left open to another bill at the suit of the subscribers. 

My opinion is, that there ought to be an amendmentj 
by making some of them parties. 



(a) Franco v. Franco, 3 Vcs, 
Bridget v. Homes, 1 Coily, 

(b) 4 Mt/L 4- CV. 619. 

(c) See Oiboum t. Fallows^ 
I Ruts. ^ M. 7^1. 

July 30. 
Aug* 3. 

of a bequest in 
the form of a 
direction to 
** pay, apply, 
and divide *' 
amongst chil- 
dren " when 


TN this case, tlie testator John Nunn Grimwood 

-^ directed his residuary estate to be converted into 

money and invested at interest, upon trust that the 

trustees should, as the interest became due, pay and 


and as " they shoidd severally attain twenty-six. 

A testator directed his trustees to pay and apply the interest of his residuary 
estate to his daughter for life, for the support of herself and issue ; and, after her 
decease, to "pay, apply, and divide the principal ** amoni^st all her children, " when 
and as" they should attain twenty-six. There was a /ru</ for maintenance during 
minority, and a power of advancement not so restricted. Held, that the children 
took immediate vested interests, and that the gift was not too remote. 

CASES IN chancery: 

^Bcpply one ihird port of it to his daughter for life, '^ for 
the support of herself and what issue she might have/' 
and after her decease, ^' upon trust to payy apply ^ and 
divide one third part of the said principal trust monies 
unto and among all and every " her children '^ token and 
as they should severally and respectively attain the aye of 
tmenty^six years ;^^ with henefit of survivorship, if any 
should die under twenty-six years of age without issue. 




And if, at the time of his daughter's decease, any 
of her children should be under twenty-one years 
of age, upon trust to place and put out the principal 
share or shares of such child or children, so under age, 
upon government or real securities, and during the 
minority of such child or children, pay, apply, and dis- 
pose of the interest and proceeds, or a competent part 
thereof, in, for, and towards the maintenance and edu- 
cation of such child or children. 

And the testator empowered his trustees and execu- 
tors, if they thought proper and that it would be for 
the benefit of any of the children, to apply such part of 
the share of such child or children, as they should 
think necessary, in putting out apprentice or other- 
wise in advancing such child or children in the world. 

And in case his daughter should die without leav- 
ing any child, or leaving only children who should 
die under the age of twenty-six years without issue, he 
directed that the principal trust monies so given to her 
so djring and to her issue, and all accumulations of 
interest thereof should go over, as in the will men- 

The suit was instituted for the administration of the 


estate, and, the tenant for life being dead, the question 
Vol. XII. O now^ 







now raised was^ whetter the gift in the fonn of a 
direction to pay when the children attained twenty-nz, 
was or was not void for remoteness. 

Mr. Matins and Mr. Toller for the children. The 
children took vested interests at the death of the testator 
or at their births, and, consequently, the limitation is 
not too remote. The gift does not rest simply on thq 
direction to pay and divide between the children as they 
attain twentynsiz, but there are superadded many cir- 
cumstances which indicate the intention of giving a 
vested interest: — 1. The gift is of a residue, and the 
Court always strongly inclines to construe a bequest of 
a residue as vested (a), in order to prevent an intestacy. 
Leake v. RMnsotL (b) 2. The children take an imme- 
diate interest, even in the lifetime of their parent, for 
the daughter is to take for life *^ for the support of her- 
self and issue." They^ therefore, are entitled to be 
maintained during their mother's life, (c) 3. There is 
a provision for the maintenance and education of the 
children during their minority, which circumstance has 
always been relied on in favour of vesting : Dames v. 

(fl) " Every intendment is to 
be made against holding a roan 
to die intestate, who sits down 
to dispose of the residue of his 
property." Booth v. Booths 4 Vet, 
p. 407. ; and see MiUom v. 
Awdry, 5 Ves, p. 466. ; Bo/ger v. 
MackeU, ib. p. 513. 

{b) 2 Afer. p. 386. 

(c) Hamley v. Gilbert, Jacobs 
354. ; Hammond v. Neame, 1 
Swan, 35. ; Foley v. Parry, 2 
Mj/l,^ K. 138, ; Broody. Sevan, 
I Etiu. 5 11 . n. ; Cooper v, Thorn- 
ton, 3 Bro. C. C. 96. 186. ; Collier 
V. Collier^ 3 Vet. 33. ; Andrews v. 

Partington, 2 Cor, 223. ; Curiii 
V. Bippon, 5 Madd, 4>34. ; Robm- 
son V. TickeU, 8 Ves. 142. ; CVm- 
olfy V. Butcher, 8 Beav. 347. ; 
Costabadic v. Costabadie^ 6 Hare^ 
410.; Cafey,Bent,ZHttre,2^.i 
Leach v. Leach, 13 Sm. 304. ; 
Bowden t. Lmng, 14 Sim. 113.; 
Crockett v. Crockett, 1 Hare^ 
451., 2 Phil. 553. ; Raikes ▼. 
Ward, 1 Hare, 445. ; WoodM v. 
Woods, I Myl. 4- C. 401.; Wetke^ 
rell V. Wilson, 1 Keen, 80 ; Caw 
den V. Benson, 4 Law J, (^. 5.) 
Ch. 256. 


Fiiher. (a) 4« The will empowers the trustees to apply 1849. 

the share of a child in putting i^prentice, or otherwise 
in advandng him, and this is not limited to his minority. o. 

5. The gift over is in case of the children dying under Q^'m^'^ood. 
twenty-nz without issue : therefore the issue were in- 
tended to take through the parent^ and for that purpose 
it 18 necessary to hold that they took vested interests. 
This was the ground of the decision of Sir John Leach 
in Bbnd v. WiUiam$ (b), where there was a direction 
for maintenance till twenty-four^ and then to pay the 
captal unto all the children when and as they attained 
twenty-four, with a gift over on death under twenty- 
four without issue, and it was held that this gift was 
^T^sted. Lastly, in the clauses of maintenance and 
adrancement, the share of the child is spoken of not 
u "the presumptive shares," but the trustees are to 
I^ out " the principal share of such child," and they 
we to apply *' such part of the share of such child," 
treating it, therefore, as vested, (c) The age of twenty- 
BZ 18 the period of payment, and not of vesting. 

Mr. Raupett and Mr. Selwyn and Mr. Teed and Mr. 
CariweU, for parties in the same interest, referred to 
Pf**pp$ V. Ackers (rf), where a gift to trustees to convey 
when and so soon as A. should attain twenty-one, with 
• gift over on his dying under twenty-one without 
^^^ was held vested. They distinguished this from 
^*fit. PrUchard{e\ where the gift was to "children 
who ehould live to attain twenty-three." 


(«) 5 J fefl paw , tQh actuai postOMion of their shares.** 

{h) 8 MyL 4- Jr. 41 1. Booth v. BooUi, 4 Vet. p. 407. 
(c) ** The testator considers (d) 5 Simons, 44 , 3 CI. 4* Fm, 

itaigifen. He speaks of it as 702 , and 9 CI. ^ Fm. 683. 

their shares of the residue. The (e) I Ruts. 214. and 5 Hare, . 

daj of their marriage is the time, 567. 

at which they are to be put into 

O 2 




Grim WOOD. 

Mr. Turner and Mr. J. T. Humphry^ oontr^ 

The gift to the children is too remote and void, fi 
some of the class may not become entitled until mo 
than twenty-one years after the death of the tenant f 
life. The bequest b not vested, because the gift co 
sists simply in the direction ** to pay and divide " wh 
and as the children attain twenty-six, and the attunii 
twenty-six is a necessary part of the descriptio 
Leake y. Robinson (a). In Blagrove y. Hancock {b\ 
testator devised his real estates to trusteesi in trust 
apply the rents for the maintenance and support of 1 
wife and his present and future grandchildren, duri 
the life of his wife, and on her death, to convey * 
estates to all his present and future giandchildren. 
they respectively attidned the age of twenty-five yea 
to hold to them, their heirs and assigns, as tenants 
common; it was held that the trust to convey ^ 
void for remoteness. In Bougkton v* James (c) s 
Boufffiton V. Boughton {d)y trustees were to hold jt 
and personal estate, upon trust '* when and so soon at 
the sons of his nephews attained twenty-five, to all 
between them and convey ; the gift was held to be t 
remote. 2. This construction is not altered by the tn 
for the tenant for life for the support of herself and issi 
Such was the case in Blagrove y. Hancock (d) ; and ] 
a similar gift to grandchildren, as they attwied tweni 
five, was held void. 3. Neither is it varied by i 
direction as to maintenance and advancement. Notlu 
less than an absolute gift of the whole intermediate 
come is sufficient : Hanson v. Graliam (^), Watson 
Hayes {ff) ; and in Batsford v. Kebbell (A) that was h 


(fl) 2 Mer. 364. 
lb) 16 ^rnont, 371. 
(c) 1 Cdlifer, 26. 
{d) 1 H. Ldt. Ca. 406. 

(e) 6 Ves. 289. 

(g) 5 Myl. ♦ Cr. 125. 

(h) 3 Fes. 3^. 


There was a power of maintenance in Bull 1849. 

V. Jmtcliard{a)j where Vice-Chancellor Wigram ob- Harrison 

serves, '' then does the clause as to maintenance, edu- v- 

cation, and bringing up, alter the case ? I think not. 

That such provisions are, in many cases, material upon 

questions of vesting cannot be disputed ; but there is 

nothing unreasonable or improbable in giving the 

benefit of maintenance, education, and bringing up, to 

the devisee of a contingent interest. The question is, 

whether I can allow that clause to have any effect upon 

the description of the devisee, which description, with- 

ont that provision, includes, as a part of it, the age of 

twenty-three years. I think not. The devise is not 

to the children, at, or when, or if, but, in effect, to such 

only as attwi the age of twenty-three years ; and the 

uiterim gift has no legitimate bearing on the question.'' 

So, m Vawdry v. Geddes(b)y where a gift upon 
*^taining twenty-two was held void, there was a posi- 
^'^e direction to apply the interest in the maintenance 
**^<i for the benefit of the children ; and in Blagrove v. 
•^f^ncoch (c) there was a trust for the support and main- 
^>Uince of the children. 

The form of the gift in Dames v. Fisher (rf) was not 
^ direction to pay and divide, but a trust for the chil- 
and to be divided at twenty-five. 

^tlieTe is nothing to qualify the first contingent gift, 
^*^ich therefore remains invalid, and void for remote- 

• Naylar^ for other parties, argued against the vali- 

of the gift. 


C«») 1 Ruu. 214., 5 Hate, 567. (c) 16 Simons, 371. 

) 1 Ruu. 4* M. 203. id) 5 Beavan, 201. 

O 3 


1849. Mr. Toller in reply. In Blagrooe ▼• HmcoAp tba» 

^fT^^^ expression was " may be applied ** towards eduestion ^ 

c here the words are imperative — '^ shall apply." 


The Master of the Bolls. I will not dispose ocs^ qi 
this case without first looking at the authorities. 

Aug. 3. The Master of the Bolls. 

The question is, whether, under this particular wF mij^ 

the gift to the children of the testator's daughter is ymmmaoii 
for remoteness, or whether the children took vested 
terests, subject to be divested on an event which 
the limitation over void for remoteness. 

When a gift is made to such of a class or descriptioi 
of persons who shall attain a certain age, those who ic:^ 
not attain the prescribed age are excluded from the^^ 
character of legatees, by the description expressly em- ""^ 
ployed by the testator himself in that part of his wilL 

A direction to pay implies a gift, and a direction to 
pay only to such persons as shall attain a certain age 
(unless controlled by other words clearly and decidedly 
preventing that effect) will prevent the implied gift 
from vesting in any object of it who does not attain that 
age. But a direction to pay an indefinite class of per- 
sons, when and as they attain the age, is ambiguous. 
It does not necessarily, or at least so strongly as th 
description of the class before mentioned, tend to 
vent the vesting in interest The ^ft itself and thi 
time of payment are not necessarily identical : thouglrf 
the ^t itself is found in the direction to pay, the words -^ 
may mean only to postpone the payment, without post-^ 
poning the vesting of the gift. 



And though^ when the gift is found or implied only 

on the direction to pay, and is not otherwise afTccted or 

explained by the context of the will, the Court may 

'■"easonably construe the direction to be only for the per- 

soxia to whom, the payment it directed to be made, and 

i>vlio are to receive at the time indicated, yet, as the 

xi^eaning is ambiguous, and as the nature of the gift; is 

oxxly known by implication, we must look at other parts 

the will, with a view to discover whether they afford 

further indication or explanation of the implied gift. 






This case, like all others of the same class, appears to 
partly from the nature of the subject and partly from 
€3 state of the authorities, to be very doubtful ; but 
l>eerving the right given to the children to be main* 
ned out of the interest or income given to their 
Bther, and arising or accruing on the share eventually 
en to them : — observing the durection, in the casei 
minorities, to place out that share, and apply the in- 
or a competent part of the mterest arising from 
(though it is not necessarily all the interest which is 
^iirected to be applied, and that only during minority), — 
^kx^d noticing also the power given to the trustees to 
^^d'vance them in the world ; — I think that I ought to 
nclade, that a vested interest was given to the children . 
the daughter. 

O 4 



Nov. 7. 18. RANELAGH ». RANELAGH. 

Pecuniary rpHE testator, Lord Ranehgh, by hb wiU, dated the 

legacies were ■ ' . . 

severally given 20th of Augtut 1814, gave his residuary personal 

md'bf''''duT- estate, in trust for the benefit of the Plaintiff, Lord 
ing their na- Jtanelaffh, for Ufe, and, after his decease, for the benefit 

tlll*&l llVGS * 

and in case of ^^ ^^ ^^^ ^^^ other 8on8^ with certain limitations 

the demise of over, 
any of them 
** without le» 

gitimate is- gy jjjg gj.g|. (joQicii he expressed himself as follows : — • 

sue, his pro- ^ *^ 

portion was to *' My daughter, Mary Ann Jones, having a fortune of 

i^Jtji^e 1^>^>0^^» which I hold m trust for her &c-, I give her 
survivors. A. for the present only 200i to buy mourning. I ^ve to 
children. ^7 ^^o daughters, Sarah Antonia Jones and Louisa 

Held that Jones, duriner their natural lives, 40002. each. I give 

they did not rw.. ^ . ^ ^ rw^ 

take by im- to my two sons, Thomas Cowley Jones and ThamcLS 

pUoition. but Edward Jones, 2000t sterling each, during theur natural 
that on i<.'8 / & » o ^ 

death, his lives. Legal interest at 61, per cent to be paid to all of 
I^idlli"^'' them, in equal quarterly payments, commencing from the 

day of my decease, till my son the Honourable Thomas 
Jones, or my heir in entail, attains his or her twenty- 
first year of age. To prevent any mistake or mis- 
conception of my directions, I repeat my intentions 
respecting the above legacies in figures : — 

To Mary Ann Jones 2002. to be paid forthwith. 

5L per cent interest, to 
be paid quarterly till 
my heir is twenty-one 
yean of age. 

Sarah Antonia Jones £4000 
Louisa Jones 4000 

T/iomas Cowley Jones 2000 
Thomas Edward Jones 2000 J 




^'In case of the demise of any of the above parties 1849. 
Without legitimate isaue^ their, his, or her proportions 
to l)e divided etiually amongst the survivors." 



Sj another codicil, he stated that the above legacies 
'^^ere to be paid out of monies he had in the publio 

At the hearing, it was held, that dying '' without 

l^^timate issue" meant, not an indefinite failure of 

^%ie, but a fiulure of issue living at the death of the 

^^atee (a); and it was ordered, that the several legacies 

^iJi^c^old be carried over to the separate account of the 

legatees, and tho dividends were to be paid to 

\ l^tees for life or until further order; and upon 

i deaths of any or either of the legatees, liberty was 

-en to any person interested to apply. 

XJpon the death of Sarah Antonia Jones in 1840, 
without having been married, it was held, that the sur-* 
vi^on took her share absolutely, {b) 

In March 1849, Thomas Cowley Jones died, leaving 
tbvce children, and his legacy was now claimed, 1. by 
his children, 2. by Lord Jtaneloffh, and 3. by the exe-t 
cutrix of T/ionuis Cowley Jones. 

Mr. Roupell and Mr. Biggs, for the children of 

Thomas Cowley Jones, argued that the children took 

by implication, for the legacy was only given over to 

tbe survivors in the event of there not being issue of 

the l^atee living at his death. That this necessarily 

implied, that the testator did not intend the legacy to 

go over, if there were children of the legatee to take. 


(a) 2 Myh ^ K. 441. (6) 4 Beamm, 419. 





They cited Ex parte Rogers {a\ Harman v. Diekm 
son (J), Lethieullieur v. Tracy (c), 1 Jarman on WilU 
490. ; and they commented on Andree y. Ward (d), ftn< 
Greene v. Ward (e) where the issue intended were th< 
children of a particuhir woman. They observed tha 
the testator himself treated the legacies as bdonginj 
to the legatees, for he calls them ^^ their, his or he 
proportions ;" and that this construction was strength 
ened by the fact that the legacy was separated fron 
the other parts of the estate, and was payable out oft 
particular part of the testator's property, viz. ^^outal 
monies he had in the public funds." 

Mr. Giffard, for the executrix of Thonuu Cowkj 
Jones, contended, that the legatee took absolutely, sub- 
ject to the contingency of his dying without lawfii 
issue, and that therefore his representative was no^ 
entitled. He cited 2 Roper on Legacies, 241., Crowded 
v. Clowes (g), and Wainewright v. Wainewright. (A) 

Mr. Turner and Mr. Calvert, for Lord Ranelagk 
The legacy is undisposed of, and falls into the residue 
The gift to Thomas Cowley Jones is expressly limited 
for life, and there is no gift to his issue, or any ex- 
pressed intention that they were to take ; such a bequest 
cannot be supplied by implication, for that would be to 
make a will for the testator. The case is like "Cooper v. 
Pitcher {{), where a legacy was ^ven to A., and in case 
he should die in the testator's lifetime without issue, 
then over. A, died in the testator's lifetime, leaving a 
child, and it was held, that such child was not entitled 
to the legacy. 


(a) 2 Mad. 449. 

(b) 1 Bro.C.C.QL 

(c) 3 Atkt/fu, 793. 

((4 1 99U. 26a .; 

(e) \Euu.262. 
(g) 2 Vet. jun. 449. 
(A) 3 Vet. 558. 
(i). 4 Hare^ 485. 

Ooodright V. Hukitu (a) was also <uted. 


' « 


IBdr. Cox, for the legal personal representatiye of the v. 

'Mr. Baupellj in reply. In Cooper y. Pitcher the gift 
absolute in the first instance and not for liie^ as in 
tius casei and the question was one of substitution. 

IZT^ Masteb of the Bolls. 
I will take an opportunity of reading over the cases 

'he Masteb of the Bolls. 

e late Lord Raneloffh^ by his will dated the 20th 

ust 1814, gave his residuary personal estate on 

t for the benefit of the Plaintiff, Lord Ranelagh^ for 

and, after his decease, for the benefit of his first 

other sons, with certain limitations over. 

Nov. 12. 

(y Us first codicil, he gave to his daughters, Sarah 
Icnia Jpnes and Louisa Jones^ during their lives, 
., and to his sons, Thomas Cowley Jones and 
Edward JoTies^ 2000Z. sterling each, during 
tir natural lives ; and after giving directions respect- 
the payment of interest, and enumerating the le- 
vies,, he expresses himself thus : — ^^ In case of the 
of any of the above parties without issue, their, 
or her proportions to be divided equally amongst the 
^^^v^ivors;" and by another codicil he stated, that the 
^>bove l^acies were to be paid out of monies he had in 
public funds. 


. (tf ) 9 Eatt, 306. 




1849. On the hearing of the cause it was detennined (<7)| 

that the words in the first codicil, ** decease without 
issue,** ought to be construed as relating to issue living 
Ranblagr. at the death of the legatees respectively ; and the le- 
gacies were ordered to be carried to the separate ac* 
count of each legatee, with directions to pay the divi- 
dends to each legatee for life, and liberty was given to 
any person interested to apply upon the death of hia 

The decree was afiirmed upon a rehearing before the 
Lord Chancellon (b) 

On the death of Sarah Antonia Jones^ one of the 
I^atees, without having been married, the legacy 
standing to her account was claimed, 1. by her Ic^al 
personal representative, 2. by the surviving legatees, 
and 3. by Lord Ranelagh^ who contended, that the 
gift to the survivors was for life only, and not an abso* 
lute gift. It was held, that the survivors of the l^atees 
took this l^acy absolutely. 

Another of the legatees, Thomas Cowley Jones j is now 
dead, and he has left three children him surviving. 

On this occasion, two petitions are presented ; one by 
the children of the legatee, who claim the fund by 
virtue of a gift, which, they say, is to be implied from 
the terms in which the gift over to the survivors is ex<* 
pressed — *^ on decease without issue." The other peti- 
tion is by Lord Ranelagh^ as residuary l^atee, who, in 
the absence, as he alleges, of any gift over to the sur- 
vivors of the legatees, claims to be entitled to this 
l^acy as part of the testator's residuary estate. 


(a) 2 M^. ^ K. i41. {b) 2 M^ 4- K. 447. 


The question therefore is, whether, as against the 1849. 

siduary legatee, a gift to the children of the parti- ^^^^^ 
aular legatee for life is, in the absence of any ex- ^ v. 
pressed gift, to be implied, from the circumstance of the 
gflft over being made dependent upon the legatee for 
life dying without issue living at his death. 



If the legacy had not been expressly limited to the 
for life, I apprehend, that in the event which 
taken place of the gift over not taking effect, the 
^^S^tee would have taken the legacy absolutely ; the 
to him would not have been defeated, and a gift to 
children would not have been implied. 

this case, the legatee, by the express words of the 
^^^^^icil, takes no interest beyond his life ; and if there 
Tio further gift of the legacy, the residuary I^atee, 
takes subject to all that is not otherwise well given, 
be held entitled. 

1?he issue of the legatee is named in the codicil only 
tihe description of contingency on which the legacy 
^ven over (a) ; and I am unable to find any thing 
^^^xch assists in collecting an intention to give to the 
^*^ildren. I can collect no particular intention to ^ve 
^^i^ l^acy to the residuary l^atee, and I cannot answer 
^**^ question proposed by Sir Thomas Plumer^ in Ex 
Rogers (2»), why the children were named on the 
ion of the gift over. But in that case, there seems 
liave been found some further reason, which does not 
^^me exist, for inferring an implied gift; and on the 
'^'''Ixole, my opinion is, that the legacy falls into the re- 
ue. I think it extremely probable that the testator 
mean a benefit to the children: but si voluit non 

(a) 2 Bos. 4* P. 328. (h) 2 Mad. 449. 


1849; dixit I think that there Is nOt BoflBcieiit to suae 

!^^^^ implication; and that the hgacj fiJla into the rendse. 

«ANBLAflH. L^^ ^jjg ^^^ ^f ^Y[ parties be paid out of the fund. 


The interest riiHE testator bequeathed to Brook Baines Hwn 
Siento'hiMh *^^ Charlotte his wife a sum of 10,00()i 3/L 

band and wife cent consolidated or reduced annuities, at the option 

lives, or the his executor, to be put in their joint names and tha^ 

life of the hig executor; they the said Brook Baines Hurlock 
survivor. In , . 

the suit, the Charlotte his wife to enjoy the interest thereof durin^^-S 

Kc*Sied ^^"^ J^^"^ ^^^* ^^ *® ^^^® ^^ ^® survivor of them • 
over to the and, after their decease, if any children, to be equall; 

^^the^husband ^^^^^^ amongst them, him or her, if only one ; and i 
and wife their they should both die without issue of their marriage,^ 
co°unt,^^Lid ^^ 10,000/. was given over. 

the dividends 

paid to them ^7 ^® decree, made the 4th day of Jvbf 1811, it 
and to the ^^g ordered, that the Defendant Stephen Teissier should 

survivor. , ^ 

Held that the transfer into Court, to an account to be entitled 

Svef ""' " ^''^^ ^""^^^ Hurlock and CharlotU his wife, their 
during their stock account,'' the sum of 10,000/. 3/. per cent Con« 
ion^ged^tothe ^^olidated Bank Annuities. And it was ordered, that 
survivor. the dividends to accrue thereon, when so tranaferred^ 

diould be, as and when the same should, from time to 
time, accrue and become due, piud to Brook Baines 
Hurlock and Charlotte bis wife during their joint lives, 
and to the survivor of them during his or her life, or 
imtil the further order of the Court. And after their 
decease, it was ordered, that any person or penons 



in^elreeted therein or entitled thereto should be at 1849. 
liberty to apply. ^^""^^^^^ 


SrooK Bainei Hurhck died in March 1849, leaving xbimibiu 
Charlotte Hurhchy his widow, and also a daughter. 

^t the time of his death four half-yearly dividends, 
amounting to 582/. 10«., were unreceived; and the 
A.ccountant-General declined to pay the same to any 
person without the order of the Court 

The widow now presented a petition for payment 
of iJiese arrears of income. 

^&4r. Lewin in support of the petition. The widow 
Sb entitled to the fund by survivorship. 

1. By the terms of the gift, by which the testator 
given the income to the two for their joint lives, 

"the life of the survivors, a joint-tenancy and not 
tenancy by entireties is created, and the income 
having been received, survives to the widow as . 

2. The terms of the decree are such as to deter- 
e that the husband and wife were joint-teDants ; 
the income is to be paid to the husband and wife 

* cliiring their joint lives and to the survivor of them." 

3. So far as the property consists of the life interest 
oF the wife not reduced into possession, the cases 
of JVUkimon v. Charlesworth and Marsack v. Lyster {a) 
decide, that the wife is entitled by survivorship. 

He also cited Forbes v. Phipps (b). 


(a) 10 Beavan, 324. {b) 1 Eden, 502. 









Mr. Miller^ contrite for the representatives of the 
husband. ]. The gift to the husband and wife is not 
and cannot be in joint-tenancy : they are tenants by 
entireties, and there is no right of survivorship. 

In Atcheson v. Atcheson {a\ where there was a gift 
to a husband and wife as tenants by entireties, all the 
Court could do was, to direct the dividends to be piud 
to the husband during the joint lives of the husband 
and wife, and preserve the rights of the wife to the 

2. The husband does not claim a chose in action in 
right of his wife, but he claims in his own right, and^ 
therefore, the cases are inapplicable. Maintaining his 
wife and family a husband is entitled to the income of 
his wife's estate ; and even if it were a separate estate, 
no account would be decreed against him beyond a 
year : Dalbiac v. Dalbiac (J), Beresford v. ArmeigK (c) 

He also cited Oglander v. Bastoru (rf) 

Mr. Lewiiiy in reply, was stopped by 

The Master of the Rolls, who said, that, if the 
fund was standing to the account stated in the petition, 
he thought the Petitioner was entitled. 

Nov. 12. Mr. Lewin stated that the stock stood to the account 

of " B. B. H. and C his wife their stock account ** 

The Master of the Rolls. Then I think the unre- 
ceived dividends go to the survivor. 

(a) \\ Beavan, A%5. 

\b) 16 Vet. 116. 

(e) 13 SimofUy 643.; and 

see Caton v. Rideoui, 1 Mac. 4* 
G. 599. and 2 Hail ^ Tweilt, 33. 
(d) 1 Vernon, 396. 




tn re JEBVOISE. Abr. 17. 

N" this and many other cases, the Court has had Observations 

, , , on the enect 

occasion to call the attention of the Practitioners to of carrying 

the importance of canying over funds to separate ^^^"""^^^ 
accounts in the Accountant-General's books, and affix- counts in the 
^^g appropriate headings thereto. It is important that QeneiS's"'" 
the view of the Court, on these occasions, should be books, and to 
generally known. Lice™?t£Bi- 

ing appro- 

The Master of the Bolls has expressed himself to ttereto". 

the following effect : — . ^«° * 

® nind 18 car- 

There are few points of practice so neglected and p^icuku* 
i^OBpecting which so little is to be foimd in the books, separate ac- 
ftB that relating to the heading of accounts in the Ac- released from 
countant-General's books, (a) It is, however, a matter ^^ generd 

^ , . questions in 

^^ great importance, and one which, when properly the cause, 

*^^xided to, saves a considerable expense to the suitors, ^^l-k^ as*^ 
^*^d diminishes the labour of the Court in investigating being subject 
*^^ title upon any subsequent applications to deal with questions ^ 

fund. arising upon 

the particular 
matter re- 

^Then a fund is carried over to a particular separate ^f"^ ^.^° ^ 

, , the heading of 

■" " it b released from the general questions in the account. 
i^e cause, and becomes marked as being subject only 
t;he questions arising upon the particular matter re- 
^''^^'arred to in the heading of the account. The conse- 
tnce is, that in all subsequent dealings with it, it 
^mes unnecessary to serve any of the parties to the 
except those interested in the particular fund; 
the Court, from the heading of the account, sees 


(a) See Laprmaudaye v. Teiuier, ante, p. 206. 

"Voi»XIL P 




In re 

at once the extent to which it has been severed 
the other questions in the cause on the former heai 

I have often had occasion to call attention to 
subject^ and wish it were more attended to. 

Note. — The following are a few of the forms of headi 
accounts in the Accountant-General's books (1840). 

AitsENT Party. 

"Joseph Harjyur^ he being be« 
yond the seas.' 


** Henrif Gridlei/, an infant. 
Accumulation Fund.** 



" The Annuity Account." Cot" 
field ?. Corficld, 

"The annuitant, Mary Maoris 
account.** Shepperd ?. Hough' 

'* Stock set apart to answer the 
annuity of 50/. to Eunice 
Brown and the Plaintiff Wil" 
Ham Snell Chauncy secured 
by the bond and warrant of 
attorney of the testator." 
Chauncy v. Wettwood, 

•* The auditor's fund." 

" Stephen G arret y a bankrupt. 
The account of ElkaheUi Gar» 
rctf an infant." 

•* The bonus account." 


** The account of the testator's 

brothers." Giffbrd y. Clark, 


" The PlaintiflTs account 
pital." Gore v. Gore* 


«The 1000/. charge accc 
Gurdm y. Badcock. 


" The charity account.*' 
<* The testator's charitabh 

pose account." 
** The charitable beques 

count." Glascoft v. Br 
"The account of the tri 

of the charity school of 

ing in the county of Sm 

Grellier v. Boston, 
'* The intended blind asyh 

Manchester,'* Henthaw 



"Proceeds of the test 
chattels real and monii 
cured on land." 


" The account of the eh 
of the late Defendant 
Buxton,^* TVavert v. TV 

''The account of the two 
dren by the Malay | 
Gillespie v. Alexander, 

" The account of the De 



t Sutannak BetBi and her 
lldren." BefBiv.JBeUu. 


B^ jxirie the Cominisnoners 
>* executing an Act of Par- 
>>xx3eiit of the 1&2 Geo. 4^ 
^ titled An Act,** &c. &c. 


contingent account of the 
intiff Caroime BiOUr:* 
Jcr y. Btuhnell, 
^ legatees* contingent ac- 
^st.** Gyhon v. Codd. 
^ condiment account of the 
^^dant Sarah Jolley and 
children." Gatelee v. 

legacy account of Char* 
Caxaiet, one of the infant 
^*»ilciren of Olympia Cazalei, 
lier attaining twenty-one 
or marriage.** Cazalet v. 
11 Beavan, 177. 
account of the Plaintiff 
Hind/e^, contingent 
lier attaining the age of 
vity-one years.** Handlei/ 
• -^^etcalfe^ 9 Beavan, 495. 




account of the WUlmgdon 
^*^^«rnal copyhold estates." 
, if «* V. Gorringe. 

"^ proceeds of the sale of 
«e copyhold and leasehold 
!8." Gkucott V. Bridget, 


* '^be account of costs." Thomp* 

** V. Thompwa, 
•* ^^o^ of suit, to date of Mas- 

^» report." FoOer v. Fos- 

•• Subsequent costs of suit.** 
Sorter ?. Foiier. 



" The creditor's account." 

" The account of the unsatis- 
fied creditors of Chrittopher 

•* The account of the creditors 
of the Honourable Edward 
Bouverie, named in the first 
schedule to the Master's re- 
port, dated the 23rd day of 
November 1833.** FhWJpt v. 
Baron Dacre^ 

** The account of the represent- 
ative of Gliomas Trcflove, a 
deceased creditor." Georges 
V. Georges* 


" The account of the testator's 
legacies and debts.*' Gisi v. 

" The Plaintiff *s dividend ac- 
count.** Gorey. Gore* 


" The estate account.** 
** The settled estate account." 
** The account of Upper Easton 
estate.** Grace v. Baynion, 


** The account of money to 
abide the event of the excep- 
tion of Charles Davis J* Green- 
wood y, Taylor, 


" Ex parte the purchaser or pur- 
chasers of the George Inn, 


" The account of money arising 
from the sale of the testator's 
freehold estates.** Gaselee v. 

2 •'The 


Itt re 




In re 

''The fre^old and leasehold 
estates of the testator TTiomai 
TimbrcU the elder, devised by 
him to the Defendant Thomat 
Timhrell, and charged with 
the payments in the will men- 
tioned." Spackman v. TYm- 


** Benjamin Bond and Stephen 
PatHsall bankrupts, the ac- 
count of the freight and earn- 
ings of the ship Prmceu Char- 
htte of Wales:' 

General Account. 

** The general account.*' Ani' 
brose V. Thonuon. 




Ex parte The London Dock 
Company and the heir-at-law 
or deyisee of James Gee.*' 


The income of the personal 

estate account." 
" The income of the residuary 

estate of the testator 7%omas 
. Pickfordr 
** Income of Enjieid plantation." 


•* The indemnity fund." 

" The indemnity accounts of the 
Defendants Thomas Sheppard 
and Thomas Ashmore.** 


" Alfred William Dalton, an in- 
fant, his legacy account." 

" The accounts of the Plaintiffs, 
the infants." Green v. Green, 


•* Interest account." Gambier 
V. Gambier, 

** The interest account of the 
infant Plaintiff WiiHam H. 
Greenalir Greenally. Wal- 

** The interest and dtridend ac- 
count." OoodaU T. BenfUy. 

Joint Estatb. 

" The joint estate of Getjrge Fitz 
John and Thomas W. FUz 
JohnJ* Gaylerit, FHx John. 


'* The jointure account of the 
Plaintiff Launce Glover^ 
Glover t. Martin, 


** The account of money arising 
from the sale of the testator's 
leasdiold estates." Gatelee 
V. Barnes. 









The legatees* account. 
The Bristol legacy accountJ 
Gist V. Foufke, 

Mart/ Atkinson* slegiBLcy.'* Grier- 
son V. Atkinson. 

The account of the legacy of 
6000/. in the testator's will 
mentioned.** Gaseleev. Barnes, 
The account of the legacy 
given to John Purkis for life." 
The contingent legacy account 
of Frances Fitzherbert Rick- 

The specific legacy account of 
the infant Plaintiff William H, 
Greenali:* GreenaU v. Wal-- 

The legacy account of the De- 
fendants Sarah Dor and WU- 
ham Lattt/, otherwise Dor^ 
arising from the apportion- 
ment of William 1jaUsf% \t> 
gacy.** Breashwr v. Dor. 

•* Funds 



^ Fnndf aet apart by the exe- 
cutors to answer the two le- 
gacies of ll/XKV. and 1000/. 
1>^ the will and codicil of the 
testator bequeathed in trust 
for his natural son William 
Snell ChauMcy^ bis wife and 
«rJiildren." Chauncy v. WetU 

account of one fourth 
of the legacy of three 
.S^ousand pounds bequeathed 
the testator Thamat TVm- 
-^^to BBbm Diana Ttnihrelir 
jSQ^Mckman r. Thnbrell. 

Lira Interest. 
e life interest account." 

account of the life in- 
t of the Plaintiff Emily 
^ary Hankt,** 

Py^s life estate.* 


Garden a lunatic." 


Gridley an infant. The 
Dtenance account.** 

BfAftftiAOB Articles. 


the trusts of the marriage 
icles of the 9th day of No- 
mber 1825.- 


r parte Hawkim, mine ac- 
Hawkins v. Hawlniu. 


^'fie mortgage account.** 
^*lie account of the Plaintiff 
^fikn Smith and his mort- 
Iplgees;' Smth v. Smith. 
*!%€ estates comprised in the 

security of the Plmntiff Keziah 
Greenwood^ Greenwood v. 

New Account, 
*• The new account." 

Next of Kin. 

" The account of the next of kin 
of the testator John Avam^* 
GrelSer v, Boston. 


The account of the principal of 
Joseph Aldridge the younger's 
original orphanage share and 
accumulations thereon up to 
his decease.'* Brum yr, Knott, 




** The account of the parish of 
Tooting, in the county of Sur^ 
rcyP Grelliei v. Boston, 

'* The parish of Langhame, the 
organ account" 

" The account of the vicar and 
churchwardens of the parish 
of Wormhgjbrd, and of the 
archdeacon of Colchester.^* 


** The partnership of Owen and 
Blatherwick:' Grants, Blather- 

Personal Estate. 

'* The testator's personal estate 
account.'* Day v. Croft. 

^ The settled personal estate ac- 
count.'* Grace v. Baynton. 

** The residuary personal estate 

'' The account of the outstand- 
ing personal estate of the tes- 
tator Thomas 'HtnbreU the 
elder.** Spachman v. Thnhrell^ 

In re 





In re 


" The Plaintirs account." Co/- 
ton T. Cotton. 


" The account of the poor of 
the parish of Wommgford, " 


** The account of the portions of 
the younger children of 7%o- 
vias Gibbon* deceased.** Gib^ 
born V. Gibbons, 


•* The principal account.*' 

*• Principal monies." Gambler v. 

** The principal of the residuary 

estate of the testator Thonuu 


' 99 



Ex parte the purchaser or pur- 
chasers of the George Inn, 
" Ex parte the purchaser of the 
estates of the late IVHUam 
Bridge* Goodrich, Esq., the 
reserve account." 

Real Estate. 

" The testator's real estate ac- 
count.** Day V. Cro/i. 

** The account of the sales of 
the specifically devised real 
estates.** Spackman v. TVm- 

•* The account of the specifically 
devised real estates of the 
testator Thomas Timbrel/, ex- 
cept the real estates devised 
to the Defendant Thomas 
TimbreUJ* Sjiuckman v. Tim- 

'*The account of the sales of 

the real estates comprised in 
the marriage settlement of the 
said Defendant Thomns TTni* 
brell, the elder, directed to be 
sold to answer the land tax 
redemption money and l^a- 
cies." Spackman v. Timhrelh 


" The receiver's account.*' 

Grace v. Baynton, 
** The account of the receiver's 

balances." Green v. Green. 


'* Account of rents and profits." 

" Rents and profits of the de- 
scended estates.*' 

"An account of monies re- 
ceived in respect of the rents 
of the estates devised to the 
Plaintiff JoA» Spillingr 

" The account of rents and 
profits of the testator's free- 
hold and leasehold estates." 
Gaselee v. Barnes. 


The residuary estate account." 
Giles V. Giles, 

The residuary personal estate 
of the testator Jolin Bowie** 
Greenwood v. Evans, 
The consolidated residuary 
estates of the testator and in* 

The infant residuary legatee's 
account." Cotton v. Cotton, 
The residuary real estate of 
the said testator devised in 
trust for sale." Spackman v. 






^* The account of the first sche- 
dule in an act 1 & 2 Geo, 4. 

c. 30. 



Ex parU the purchaser 
E^urchasers of the settled es- 
s of WiUkm Omuhy Gore 
Mary Jane bis wife." 
account of the second 
^^^ Vjcdule b an act 1 & 2 Geo. 

^ C.30. 


Separate Account. 

e Plaintiff's separate oc- 
unts.** Bykei v. C/oiur. 

Separate Estate. 

_e separate estate of Thomat 
^♦Vi/# FUz John:' Gayler v. 
-^^^itz John, 

K^lie separate estates of the 
H^efendant Thomas Timbrell^ 
impiised in the term created 
Uie indenture of the 9th 
ay o£ January 1823." Spack- 
Man V. ThnbrelL 


tie settlement account." 
<I^oodaU V. Bayley. 

le marriage settlement ac- 

«unt of Frederica Emma 

ura Robmion:* 

e account of ESxabeth Batts 

fe and her children, 

nder the said marriage settle- 


e account of the funds sub* 
to the trusts of the set- 
lement of the 17th day of 

•* The surplus rent account." 

Grace v. Baynton, 
*• The account of the surplus 

produce of the moiety of the 

Cfulcote estate." 



Slate Compensation. 
slave compensation ac* 

stock account." 

'* The suspense accoimt 



«* The timber account." Grace 
V. Baynton. 


•* The trade account." Day v. 


•* Wmiam Atkinson's trust ac- 
count." Garland v. ElUs,. 

«• The trust account of the set- 
tled property of the Plaintiff 
Launce Glover^* Glover v. 

<< The account of estates com- 
prised in the trust deed of 
1816." Comewall v. Comt' 

*^ The account of the Defendant 
Arthur Robinson Chauvel, clerk, 
the surviving trustee under 
the indenture of settlement 
of the 30th day of August 
1821, made on the marriage 
of the Plaintiff Anna Maria 
Dixon with her first husband 
Samuel Simpson.* 



" Ex parte the vicar of Greene 
wich in the countv of Kent:* 


In re 




Where the T^ASSAGES in the bill were, upon exceptions, found 
exceptknis^or to be scandalous and impertinent by the Master. 

scandd and The Plaintiff having excepted to the Master's report, 
is confirnuid ^^^ matter complained of could not be expunged under 

by the Court, the 4l8t Order of 8th MaVy 1845. (a) 
upon appeal 

Master, a '^^^ Court upon appeal held, that the bill was scan* 

speaal order dalous and impertinent, 
to expunge is ^ 

Mr. Freeling now moved for an order to expunge, 
saying that this was a casus omissus in the General 

The Masteb of the Rolls. 

I do not think the General Order applies to this case. 
Take the order. 


The order thus made did not provide for the costs, 
and, on the 14th of December y Mr. Freeling applied ex 
parte for an order for the taxation and payment of the 
costs. He said that the Secretary declined giving an 
order of course, and that the Taxing Master would not 
tax them without an order, though the Master had 
originally certified by whom the costs were to be paid* 

The Master of the Rolls. You had better give 
notice of motion. 

Dec. 19. The order was made, no one appearing for the 


(a) Ord&net Can, 300. 

NoTS. — See Wy, Pr. Beg, 383. ; HmdeU Pr. 256.; ai>d Muscott 
V. Ha/hed, 4 Bro. C. C. 222. 







Tte ATTORNEY-GENERAL v- The Corporation Kavcmher U. 


^R£ Defendants to this Information put In an answer Defendants 

and demurrer, and the demurrer was overruled, fi*«*ade- 
- ' ' murrer and 

tat at the Rolls (a), and afterwards by the House of answer, and 
I'0rd8.(i) On the latter occasion, the House gave the fetngTve^'' 
Defendants six weeks further time to answer. ruled, they 

obtained time 
to answer. 

The Defendants iSled their answer on the 3rd of July J^^J ^^^^ « 

lo^o , • . ^ , ... • further an- 

io48, and the Attorney-General, conceivmg it to be swer ; on 

iwufficient, took exceptions thereto, but the Record and ^Pf."*^ fPP^'* 
. '- ^ '^ ^ ' cation, leave 

Tynt Clerk declined filing them, on the ground that was given to 

there existed no exceptions to the former answer. to\ie excep- 

tions thereto, 
although he 
Mr. had not filed 

^a) 8 Beav. 270. {b) 1 Houte o/Ldi. Ca. 440. ^,ynri^an. 

Vol.. XII. Q swer. 






of London. 

Mr, Turner and Mr. Maule now moved for liberty 
to file exceptions to the further answer. 

Mr. Betkell and Mr. Randell, contra. In Cotes v. 
Turner (a), it was held " per Curiam^ where a plea or 
demurrer is overruled upon hearing, and the Defendant 
answers also (even by only denying combination), the 
Defendant is not obliged to put in a farther answer, 
until the Plaintiff has put in exceptions for that pur- 
pose; but if the demurrer is to the whole bill, and 
overruled, the Defendant must answer according to the 
rules of the Court, without exceptions put in by the 

2. The Attorney-General ought not now to be in a 
better position than he would have been if he had 
taken exceptions. In that case, the 16th Order of May 
1845, Art, 29. (i) directs, that: "After the filing 
of exceptions to a Defendant's answer for insufiiciency, 
and any further answer put in, the Plaintiff has four- 
teen days from the filing of such further answer within 
which he may refer the answer back to the Master on 
the old exceptions. The answer, if not referred bac^ 
on the old exceptions within fourteen days after such 
further answer put in, is, on the expiration of such 
fourteen days, to be deemed sufficient.'' 

This answer ought, therefore, to be deemed sufiScient, 
and this application to the discretion and indulgence of 
the Court ought not to be granted. 

Mr. Turner was not called upon to reply. 

TVid Master of the Rolls. 

It is said to be the rule, that where there is a de« 
murrer and answer, and the demurrer is overruled, a 


(a) Bunhurtf, 123, (A) Ord. Can. 285. 


Defendant is not bound to answer, unless the Plaintiff 

files exceptions to the answer. For the purpose of 

tliis motion, it is not material, to say, whether such is or 

18 not the rule, ibr although, in this case, the Informant 

did not except, yet the Defendants voluntarily and 

deliberately consented to put in an answer without any 

eiKoeptions being first taken. What is the consequence ? 

VVhy, that they put in an answer which was subject to 

ttU the rules to which other answers are subject, and 

AKKiQDgst them, to exceptions for the purpose of deter- 

Qn^ning whether the answer is sufficient or not. 





of London. 

I have been referred to the rule, that where except 
tions are filed, and the answer to them is alleged to be 
efficient, the exceptions must be referred back within 
oertfdn time. That rule does not apply to this case, 
s^ there are no exceptions to refer back. The Defend- 
have voluntarily answered, and now insist, in sub- 
s^^^uice, that they may put in such answer as they please, 
"^'^liether sufficient or not. 

^ grant this application without hesitation. The ques-^ 

^^n is not whether I am to give the Informant an in- 

^"Olgence, but whether I am to deprive him of the right 

"^Irich all other suitors have, of compelling Defendants 

*^ put in a fuU answer. 



August 13. 


r^OL. COWPER by his will expressed himself as 
follows : — "I appoint my said wife Lydia sole 
executrix to this my will, and bequeath to her the whole 
of my property," &c. &c, ** In case of my sidd wife 
Lydia Cowper marrying again, I direct that the whole 
of the property to which she will become entitled by 
this will be settled on herself, so that it may not be 
touched, principal or interest, by her husband, but on 

Property was 
held by A. ir., 
and C,, in 
trust for jD. 
for life, with 
remainder to 
her children. 
The children 
filed a bill 
against the 
trustees for 
a breach of 

by the^decree ^^^ death, to her children by her first husband." 
the trustees 

He died in 1825, leaving his wife and four infant 
children. His widow afterwards proved his will, and 
possessed herself of his estate. 

were ordered 
to replace the 
fund. C, 
being in con- 
tempt for 

ance of the I^ 1829, Lydia the widow married Alexander Taylor^ 

decree, filed a and on the 25th of February 1829, a settlement was 
bill against ^ ' 

the other made of the property. 

trustees, and 

life, alleging ^^ February 1838, John Taylor y together with IVallit 

that they had and Parkyn^ were appointed new trustees of the settle- 

retained the ment of 1829. 

produce of 

the breaches 

of trust, and 

seeking to 

make them 

and the life 

estate liable 

to indemnify 

C. Held, that trust, in selling out and misapplying the trust funds, 

was n*o^in ^^^^ seeking to make them responsible for the same. 

the nature of By 

a bill of re- 
view, and therefore that it might be filed without the leave of the Court ; and, 
secondly, that C's contempt an<l non-performance of the former decree did not 
prevent his filing the secoml bill. 

In 1846, two of the children of the testator, one by 
his next friend, instituted a suit of Cowper v. Taylor 
against the three trustees, and Lydia Taylor and her 
second husband, charging the trustees with breaches of 



By the decree in Cowper v. Taylor^ dated the 15th 
Ifovember 1848, the Court declared Taylor y Wallis, 
&iid Parhyn bound to make good the sum of 26,274/., 
areceived by them, and not applied in accordance with the 
trusts declared by the settlement of the 25th oi February 
1 829, and they were ordered to pay that sum into Court. 
They were also ordered to transfer into Court a sum of 
6^420/1 3:^ per cents., and the dividends were ordered to 
paid to the Defendant Lydia Taylor for life ; the 
tnistees were also to transfer and deliver to Lydia 
^^ayhr certain Pennsylvania stocks and Louisiana bonds^ 
it was declared, that Lydia Taylor was entitled to 
interest and dividends thereon for life. The trustees 
ordered to pay the costs of suit. 


«/bAii Taylor went abroad and stood out process of 
contempt for the nonperformance of the decree. 

S«ing still abroad and in contempt, he, in June 1849, 
filed this bill of Taylor v. Taylor against Lydia Taylor, 
^er husband, Wallis, Parhyn and the Plaintiffs in tho 
^'^it of Cowfer v. Taylor. 

The bill in substance alleged that, besides the pro- 
perty settled on the second marriage, Lydia Taylor had 
{raudulently concealed and retained to her own use 
other portions of the testator s estate which ought to 
have been settled, and which it sought to recover. 

It also stated, that she had been deeply engaged in 

speculation with fVdllis, her solicitor, and that they had 

induced the Phuntiff to become a trustee and to sell out 

^e trust funds, in order that they might obtain the 

produce. It alleged, that Lydia Taylor and Wallis had 

received and appropriated to themselves the produce, and 

that they had afterwards collusively caused the suit of 

Q 3 Cowper 


1849* Cowperv. Taylor to be inBtituted, nominally in the name 
of the testator's children, in order* to charge the Plains- 
tiff with the loss. It further alleged, that it had been 
coUusively arranged between them, that the decree should 
not be enforced against any other person than the pre- 
sent Plaintiff. The bill insisted, that the life interest of 
Lydia Taylor in the trust funds was liable to make good 
the trust monies received by her, and that the Defend- 
ants ought to be decreed to indemnify the Plaintiff against 
all liability and costs incurred by him in Cowper y. 

The bill prayed an account of the testator's estate, 
and for the transfer to the trustees of the part which 
had not been already transferred, and thsitLydia^e interest 
might be applied in making good what she had receiyed 
and applied to her own use. It prayed also an account 
of the dealings of Lydia Taylor^ fVallU and Parkyn 
with the trust funds, and that Wallis and Parkyn 
might pay what might be found due from them, and 
that *' the said Defendants, or such of them as to this 
Court shall seem just, might be decreed to indemnify 
the Plaintiff against " the loss &c. incurred in the suit 
of Cowper V. Taylor, 

A motion was now made on behalf of the Defenduits^ 
Charlotte Cowper and Alexander Cowper, who were the 
Plaintiffs in the cause of Cowper v. Taylor, to stay all 
proceedings in the present cause, until the Plaintiff 
John Taylor had complied with the order and decree in 
Cotcper V. Taylor and cleared his contempt, or that the 
bill might be taken off the file with costs. 

Mr. Roupell and Mr. Kinglake in support of the 

1. This 



1. This is a sapplemental bill in the nature of a bill 
of review^ and it seeks to vary that which was done in 
the fonner suit. It ought not^ therefore^ to have been 
filed without the leave of the Court ; and the proper 
Implication in such a case is, to ask that the bill may be 
taken off the file ; Hodson v. Ball (a), Davis \. Bluck. (6) 
The relief now asked is inconsistent with the former 
decree, as is evident, if you consider the effect of making 
a decree in the terms of the prayer of the present bill. 
Such a decree would direct an account of the dealings 
with the trust ftmds, and take away from Lydia Taylor 
that life estate, to which, under the terms of the former 
decree, she is expressly declared to be entitled. If th6 
new &cts now stated had been introduced into the 
present Pkdntiff 's answer to the former bill, they would 
have been adjudicated on, or an enquiry would have 
been directed. The points now raised must, therefore^ 
be deemed to have been decided and disposed of. 


2. The present Plaintiff is abroad, and in contempt. 
He Court will not permit him to escape the perform- 
Mice of the former decree, and, at the same time, 
take expensive proceedings against the parties who 
have obtained it, and are in possession of the judgment 
of the Court. The present suit ought to be stayed 
^til the Plaintiff has performed the former decree, and 
Scared his contempt. The Court will not allow a party 
^ take a second proceeding until the costs of the first 
bave been paid; Pickett y. Loggon{c\ Holbrooke v. 
^ocroft(d), Altree v. Hordem, {e) A mortgagor De- 
fendant cannot, while in contempt, obtain a reference 
^der the statute; Hewitt v. McCartney {g)\ and a 

(«) 11 Smofu^ 456., and 1 (d) 5 Ves, 706. n. 
^*>^, 177. (e) 5 Beavan, 623. 

W 6 Beavan, 393. (g) 13 Vcs. 560. 

W 5 Vet. 702. 





party will not be allowed to file a bill of reYiew until 
he has performed the former decree; Partridge v. 
Usbome. (a) Such a proceeding is contrary to the 3rd 
of Lord BacofC^ Orders (i), which provides that " no 
bill of review shall be admitted^ or any other new bill 
to change matter decreed^ except the decree be first 
obeyed and performed." 

Mr. G. Turner and Mr. Freelinff, contra. This at- 
tempt to stay the suit is a collusive proceeding taken to 
shield parties who have the trust property in their pos- 
session. This is neither a bill of renew^ nor in the 
nature of a bill of review^ but a new and ori^nal bill» 
for it proceeds on the foundation of the former decree, 
and in no way seeks to relieve the Plaintifif from any 
liability thereunder, or to alter any matter adjudicated 
upon in the former suit. Assuming that John Taylor 
was liable for the breaches of trust complained of, this 
bill states, that those very monies for which the Plain- 
tiff is responsible are now in the hands of Lydia 
Taylor and of his co-trustees ; and that, as between the 
Flaintifi" and those parties, they, and not the PUdnUfl^ 
ought to replace such trust funds. So far from seek- 
ing to take from the Plaintiffs in the other suit any 
benefit of their decree, the present suit seeks to recover 
other funds and to increase the security for the trust 
monies, by making liable the interest of the tenant for 
life ; and trustees cannot, even by contract, waive their 
right of resorting to the life interest, for the purpose of 
replacing trust funds in the possession of the tenant for 
life. Fuller v. Knight, (c). The present point has neither 
been raised by the pleadings, nor dealt with by the 
decree in the former suit. The proper test for trying 


(a) b Rius. 195. 

(h) \ Sanders' Ord. 109. 

(r) 6 Bcavan, 205. 



irhether a bill is in the nature of a bill of review was 

laid down by Lord Cottenham in Bainbrigge v. Bad-- 

deleg{a) and Toulmin v. Copland {b), and is this: — 

could the former proceedings be pleaded in bar? Here 

it is dear they could not. This case resembles Berraw 

v» Afarris (e), where such an objection failed. 





2dly. They argued that the contempt and the non* 

performance of the decree was no bar to this suit, for a 

€X>iitempt was only available as an objection in the same 

8«xit ; Clark v. Dew (d) ; and as to the non-performance 

o£* the decree, that this suit was one of the means which 

'would enable the Plaintiff to comply with the exigency 

of the former decree. That to allow this objection 

mrouild be to say, that the tenant for life and the other 

trustees were to retain in their hands the trust funds 

tsx&til the Plaintiff could find the means of paying the 


^Fliat the cases of Pickett v. Loggon (e), Holbrooke v. 

CrctcTofi {g\ and Altree v. Ilordern (A) did not apply, 

for tJhere a Plaintiff had commenced a second proceed- 

^S ^OT the same object, before he had paid the costs of 

the first which had failed. 

lM[r. BoupeU in reply. 

T7ie Masteb of the Solls. 

I conceive the facts to be shortly these. Tinist funds 
derived from the estate of a gentleman named William 
Copper were vested in three persons — Taylor y Wallisj 


(a) 2 PhUUps, 705. 

(b) 2Philiips,ni. 

(c) 10 Beatfan, 437. 
(df) I Rust. 4r My I, ]03. 

{e) a Vctey, 702. 
\g) 5 Veicif, 706. n. 
(/<) 5 Beav. 623. 




and Parkyn. Those funds were misapplied, and a bill 
was filed by two of the cestuis que trusty praying relief 
in respect of that breach of trust, and praying that the 
money should be brought into Court 

The trustees, together with Lydia Tayhr, who was 
entitled to the income of the trust fund for life, and 
other persons, were made Defendants to that suit. 

Mr. Taylor having put in his answer, an order was 
made against the trustees to bring into Court « sum 
of 18,000/. in their hands. Mr. Tayhr^s answer wa9 
excepted to, but he did not answer the exceptions. 
He was put in contempt, and a decree made as against 
him pro confesso ; and it was declared, that the three 
trustees were liable to make good the trust money. 
Upon that declaration, they were changed not merely 
with the sum of 18,000/. which had been ordered to be 
brought into Court, but with a further sum amounting 
in the whole to 26,000/. The decree having declared 
the trustees liable to make good those sums, and ordered 
them to make them good, went on further to order, 
that when those sums had been paid into Court, the 
income should be paid to Lydia Taylor^ the tenant 
for life. That being the nature of the bill and of the 
decree, the present bill is filed by JSIr. John Taylor^ 
one of the trustees ordered to pay these large sums of 
money. It states a vast variety of matters, but does 
not seek to discharge him from his liability, or in any 
way to get rid of the declaration of the Court, that 
he, as one of the trustees, is liable to make good the trust 
monies ; nor does it seek to get rid of the order which 
enforces payment. What he says is this: — "since 
this decree was pronounced I have discovered filets, not 
such as can relieve me from my responsibility or take 
me out of the operation of that decree, but facts which 



% that other persons have had the benefit of the 1849. 

brecush of trusty which I, among others, haye com^- 

mit^ted ; and the relief I ask is, that thej who haye had 

the benefit of the breach of trust maj indemnify me 

against the consequences of the decree to which I am 

Bufajcct*' The decree remuns, notwithstanding he is. 

abroad, in full force for the benefit of the Plaintiffs. 

^Hiia bill neither seeks to get rid of the declaration, nor 

of his Uability to perform the decree, nor of the process* 

^ oontempt issued against him for the non-performance 

^ it ; but by it Taylor says, " though I am bound to 

pc^x^orm this decree, there are other persons who have* 

'lad the benefit of the breach of trust which I haye 

^^Ofixiiiiitted, and who haye moreoyer receiyed other 

ixioiiies to a yery considerable amount belonging to the* 

^!ixut fund, to the proper application of which I am 

bo-ond to see." 

If I understand it rightly, this bill has two objects : 
&^^t, to compel those persons who haye receiyed parts 
^^ tiie trust funds, which are not in question in the first 
^^Qb.'ose, to account for them ; and, in the second place, 
'^^^tiiout disturbing the decree, to make those who haye 
^^^^^^ the benefit of the breach of trust which has been 
GoKmnitted, and haye kept possession of the money, 
a<X^unt for it, and in that way indemnify Taylor, 

I really cannot see why that relief might not be 
light here notwithstanding the decree. It would 
>ye been a yery different thing if he had said, ^^ I am 
««ititled to be indemnified, pay the money to me." The 
tiling is not now in that state to enable it to be done ; 
l>^ supposing he were to recoyer that which he seeks 
Vy this suit, could anybody doubt that the funds would 
^ properly applied under the decree made in the 
™^ cause, on a proper application in that suit? It 





alters the 'case of Lydia Taylor no doubt, because, 
under that decree, she is entitled for her life ; but the 
second bill insists, that she has so conducted herself 
that, notwithstanding the declaration of her right under 
the first decree, which is not sought to be disturbed, 
she is bound, out of that to which she has a right, in 
the first instance, to indemnify the Plaintiff. No doubt 
it would be an important thing if it sought to stay the 
execution of the decree ; but I cannot imderstand, that 
this bill seeks to alter at all the rights of the parties 
as declared by the decree, or the liability to pay those 
sums of money which the decree orders. 

I am therefore of opinion, upon this view of the case, 
that the Plaintiff is not precluded from filing this bill 
without the leave of the Court, and consequently I 
must refuse the motion. 

As to the point, that he ought first to perform the 
decree, I do not think, looking at all these things, that I 
am entitled to say that he is bound to do so. It is 
not because he cannot perform the decree: — it is not 
because he is out of the jurisdiction, and therefore the 
decree cannot be enforced against him, that he is to be 
precluded enforcing his rights against others. He says, 
^^ I do not seek at all to affect the rights of the Plsdntiffs 
in the first cause, — I am aiding them : if I am unable 
to pay, I am finding persons who are bound to in- 
demnify me, and who are liable and capable to pay, and 
will enable me to pay for the benefit of the Plaintiffs ; 
moreover, I am seeking to get for these Plaintiffs other 
funds which belong to the trust, and I ought not to be 
precluded from doing so." I cannot say I think the 
Pl^ntiff is bound to perform the decree otherwise than 
any other suitor is bound to perform any order of the 
Court ; and I am of opinion that he ought not to be 



prevented from instituting a suit of this kind until he 
has perfonned the decree. On the whole, therefore, I 

tliiiik that this motion cannot be granted. I must re- 

Aise it with costs, which maj be set off. 

-AArmed by Lord CoUenham, 4di Dsc. 1849. ; I Hali ^ Tiveiii, 
i IM.^ Gift. 397. 


-falS case was argued by, 

. Turner and Mr. Cairns, for the Plaintiff. 

May 29, 30, 


June 1. 

Xov, 5. 

by the Plain- 
tiff*, an eldest 
«on, to the 

r. Bethell and Mr. FoHett, for Daniel Sturge and his brothers, of 
-—,,-, , - ^ "^ , his interest in 

fVaUter Sturge, and the executors of Samuel an estate, for 

an inadequate 
set aside, on 
the ground of 
the Plaintiff's 
ignorance of 
his rights, and 
of the absence 
of a full and 
free disclosure 
of all the 
material facts 
known by the 
and of the 
Plaintiff being 
Stochletf under pecu- 
niary pressure 
and without proper legal advice. 
^Ji estate was devised to E. S. in tail. By her marriage settlement she retained 
^ V^^^er of appointing the fee, and by her .will she appointed it to her children, 
^^Vuding the eldest, otherwise provided for. No fine or recovery was levied after 
m death. After her death, the eldest and the four younger sons agreed to divide 
Restate, and the eldest agreed to sell his share to the latter, and he accordingly 
cmvcyed all hia interest. The conveyance was set aside on the grounds above 

'• De Gex, for Earl De Grey, a purchaser. 

'. Baupell and Mr. Smythe, for Thomas BuchlanJU 

; Amyot, for Joseph Mill. 

. Lloyd and Mr. Stinton, for another purchaser. 

r. Turner, in reply. 


1849. StocUey v. Stockley (a), Harvey y. Cooke {b), 2>tm- 

^y''^^ ^'^ff^ ▼• ff^kite (c), Bridgman .v. Chreen (rf)» ^«i^ ▼• jB«i- 
V. •fieft(tf), Gordon Y. Gordon(ff), Brodericky. Broderieh{K) 

were cited. 

7%e Master o/*^Ae Rolls reserved judgment. 

Nov. 5. The Master of the Rolls. 

This bill is filed by William Starge^ for the purpose 
of setting aside a deed dated the 15th day of October 
1841, which, he says, he was induced to execute by 
misrepresentation and fraud, without consideration, and 
whilst he was ignorant of his right to the property 
which the deed purported to convey. 

' On the 10th of July 1769, the property in question, 
called the Chilworth estate, was devised by the will 
of William Mill (the Plaintiff's grandfather), to his 
daughter Elizabeth Milly and unto her issue lawfully to 
be begotten, and to the heirs of such issue for ever ; but 
in case his said daughter should die without issue law- 
fully begotten, he further devised as in his will stated* 

The testator died soon after the date of his will^ leav- 
ing his daughter Elizabeth surviving him. 

That this will gave an estate tail to Elizabeth Milt 
was not disputed in the argument of this case. 


(a) 1 Vet. 4- B. 23. (e) 7 Sim. 539. and 4 MyL 4 

(6) 4 Bust. 34. Cr. 269. 

(c) 1 Swan. 137. (g) 3 Swan. 400. 

(^0 2 f^es. sen. 627. WilmoiU (//) 1 P. W. 240. 
Judgments^ 58. 


In September 1785, EUzabeth MiU being about to 1849. 

many 2Uy WdUier Stwrge, the Plaintiff's father, an 

indenture of settlement, dated the 14th day of Sep^ 

tember 1785, was executed by and between Elizabeth 

Mill of the first part, Toby Walker Starge of the 

second part, and John Player and James Hooper of the 

third part, and thereby it was purported, that Elizabeth 

MiU conyeyed the estate in question (which is in the 

settlement described as the estate devised by WUliam 

JkRU to her and her issue, and the heirs of such issue for 

ever) to hold to the trustees on the trusts therein men- 

ticmed, which, after the solemnization of the marriage, 

were, for the husband for life, with remainder to the 

wife for life, with remainder to such uses as she should 

by deed or will appoint. No fine or recovery was 

levied or suffered, but the marriage took effect, and 

there was issue surviving at the date of the will of 

^Bzabeth Sturge, five sons and one daughter ; the sons 

^ere 1. fFHUam, the Plaintiff— 2. the Defendant 2>awV?/; 

^^ the Defendant Tobias Walker Sturge ; 4. Samtiet 

®Sftoye, who was living in October, 1841, but is since 

*^iccafled ; and 6. John Mill Sturgey who died in Decern" 

1824, in the lifetime of his mother : and the daughter 

Hester Sturge (afterwards Sargeant), who died in 

'^ptember 1836, in the lifetime of her father. 

EHzabeih Sturge, by her will, dated the 12th of Fc 

^"^^^mary 1821, after reciting the settlement of the 14th 

^^ September 1785, gave and devised unto such of her 

^Oxir younger sons, Samuel, Daniel, Tobias Walker, and 

tJ^An MiUf as should be living at the time of her death 

\Other than and except such of her said sons as, by the 

^eath of the Plaintiff and all his issue, if he should have 

say, might become the eldest son and heir for the time 

\mg of herself and her husband), their heirs, ezecu- 

ton, administrators, and assigns, from and immediately 





after the death of her husband, the several lands com- 
prised in the settlement, together with certiun lease- 
holds, to hold the same to her stud sons as tenants in 
common^ and to the heirs, executors, administratorsy 
and assigns, subject to the life estate of her husband, 
and charged with one full fifth part of the value there- 
of, to be invested for the benefit of her daughter Hester 
and her children. And she declared, that the Plaintiff 
was excluded from any benefit of her sud devise, be- 
cause he was otherwise well provided for. 

The testatrix died on the 25th of Augmt 1825, with- 
out having altered her will, leaving Toby Walker 
SturffCf her husband, surviving. 

It is said, that in the year 1827, Toby Walker Sttaye 
being entitled in tail to an estate called Sodbury, levied 
a fine and executed a settlement, whereby that estate 
was limited to himself for life, remainder to the Plain- 
tiff, his eldest son, in fee. And that in the years 1829 
and 1830, the Plaintiff borrowed different sums of 
money, to the amount in the whole of 350021, on the 
security of his interest in that estate. 

It is further said, that in 1833, the Plaintiff Wil- 
liam having failed in his business, became so reduced 
in his circumstances, that he returned to his father's 
house, and lived there in dependence on and supported 
by him. 

On the 25th day of March 1841, the father died, 
liaving first made a will, whereby he gave all hia real 
and personal estate to his sons Samuel, Daniel^ and 
Tobias Walker, except that he gave to the Plaintiff a 
legacy of 50/. only, stating as a reason that William 
was otherwise well provided for, and he appointed 



Samuel, Daniel, and TMas Walker executors of his 

Qlie father was eighty-five years of age when he 
died ; and the bill alleges that the Plaintiff, by reason 
^ liis having mortgaged his interest in the Sodbury 
estate to the amount of its value, had not, at the time 
oP Iiis father's death, and had not for some time before 
hskd^ any means of support, except such as were and 
had been allowed him by his father: — that he had 
nearer interfered in the management of his father's affairs 
•and property; and it is, I think, proved, that at the 
tioae of and after his father's death, the Plaintiff was in 
neeciy circumstances. It appears that he applied to his 
brot^hers for pecuniary assistance to enable him to stock 
the ieixm at Sodbury. 

^I?he Phuntiff was discontented with the disposition 

Made of the property of his father and mother, and 

lAeir con^erable negotiation, of which it is to be re- 

pe'tted that the full particulars do not appear, and some 

correspondence, which I shall have occasion to notice, 

it Beems to have been agreed, that the Chilworth estate 

«bould be equally divided between the four brothers, 

wad that the Plaintiff, who was in want of money, 

should sell his share to the other three. On the 

15th of October 1841, the parties met at the office of 

^•Rijberts to execute the deeds which he had pre- 

pu^, and accordingly an indenture dated the 15th 

of October 1841, and made between the Plaintiff of the 

fct part, Samuel Sturge and the Defendants Daniel 

StmyetJid Tobias Walker Sturge of tlie second part, and 

Joka Roberts of the third part, was executed by those 

-parties. The deed recited the will of William Mill, 

and the marriage of Elizabeth Mill to Toby Walker 

.Sturge, and, after stating the parties of the first and 

Vol. XII. R second 





second parts to be the surviving children of the mar- 
riage^ and that they had agreed, that the estate should be 
equally divided between them, and that the share of 
the Plaintiff should be purchased by his brothers for 
950/., it was witnessed, that, in pursuance of the 
agreement, and in order to defeat all estates tail by 
virtue of the recited will, and to limit the inheritance 
in fee-simple to the uses therein mentioned, and in 
consideration of the sum of 950/. paid as therein men- 
tioned, the Plaintiff, in pursuance of the statute therein 
mentioned, conveyed the estate to Roberts in fee, for the 
uses in equal thirds of Samuel Sturge and the Defend- 
ants Daniel and Tobias Walker, as tenants in common* 

This is the deed which the Plaintiff seeks to set 
aside. He says that he executed it under a nodsap- 
prehension of his right, and in the belief, that he was 
conveying only one-fourth part of the estate, and that 
he was not aware, that in consequence of no fine or 
recovery having been levied or suffered, he was entitled 
to the whole estate. He further alleges, that he exe- 
cuted the deed without having had proper legal advice ; 
that the real facts of the case were not disclosed to 
him, and that he was at the time under the pressure 
of pecuniary difficulties. 

It is to be observed, that the only title redted in 
the deed is the title derived imder the will of fF. MUl^ 
and that the only consideration ^ven to the Plaintiff 
was the alleged value 'of one-fourth of the estate. 

The Defendants, not now denying that the Plaintiff 
was entitled to the whole estate imder the ¥rill of hiB 
grandfather W, Mill, insist, that he was perfectly 
aware of the nature of his right and cbdm, executed 
the deed, with a full knowledge of its contents and 


s to the meeting of the 2nd of April 1841, the 
only disinterested person who was present was the wit- 
ness Levitt, who has been examined on both sides, 
Iwit: whose recollection is unfortunately so imperfect, 
^t: the important facts cannot be ascertained from 
^ evidence. The documents which were material 
^"th reference to all the claims then subsisting were 
Iftt. The will of W. Mill; 2nd. The settlement made 
on the marriage of Toby Walker Stiirge and Elizabeth 
MHi; 3rd. The will of Elizabeth Sturge, and, 4th. The 
™l of Toby Walker Sturge, and if any claim was 

nadc under the will of W. Mill, it was of the utmost 


nnportance to ascertain, whether, in contemplation of 
Ae marriage of Elizabeth Mill, oV on any other occa- 
ricm, a fine had been levied, or a recovery suffered of 
the devised estate. As to that, it does not appear 
that any enquiry had at that time been or was then 
made, and as to the documents, after repeatedly con- 
sidering the evidence of Mr. Levitt, I find it impos- 
sible to collect from it, what were the documents pro** 
dnced or referred to, and, in particular, whether the 

R 2 probate 



effect, and that it was a compromise of family dif- 1849. 
fepenceSy made after due consideration, and with a full 
im<3erBtanding of the case ; and, in particular, they say, v. 

that on the 2nd of April 1841, and almost immediately Sturge. 
after the testator^s death, the Plaintiff required to see 
aa<3 was shewn a copy — viz. the probate copy — of the 
irill of W. Mill, and then insisted on his right to the 
whcJe estate under that will; and that on the 15th of 
October 1841, the deed containing an accurate recital 
of the will of W. Mill was read over to him, and that 
be perfectly understood it. These allegations, if esta- 
blisliedj would be very material, and it is necessary to 
exc^xnine carefully the evidence in support of them 
wluoh I have done. 







probate copy of the will of Mill was produced^ as is 
alleged by the Defendants^ and if so, whether any 
question was raised upon its constrnction and effect, 
or any daim made under it ; and, upon the evidence, I 
am of opinion, that it is not established, that in April 
1841, the Plaintiff knew that he had any legal claim 
under the will of his grandfather W. Mill, and still 
less, that he then clsdmed the whole estate under 
that will. 

On the 15th of October 1841, at the meeting when 
the deed was executed, there were present the parties, 
the Plaintiff, his brothers Daniel and Tobias Walker^ 
and Mr. Roberts^ and the attesting witnesses were 
AugiLstus Alexander and Mr. Johnson. Mr. Alexander 
states, that before the deed was executed, the draft 
was read over aloud by himself slowly and deliber- 
ately, and that whilst the same was so read, the deed 
was held by the Plaintiff and one of his brothers, who 
attended to and followed the reading of the draft ; but 
beyond that, he has no recollection of any explanation 
having been given to or required by the Plaintiff of 
the contents, or effect of the deed. 

I am of opinion, that this evidence does not, of 
itself, establish the fact, that the Plaintiff did fully 
understand the effect of what he was doing. It does 
not shew, that he understood or had the means of 
understanding the effect of the will which was recited 
in the deed, that he alone was at that time entitled to 
the estate tail by the will devised to his mother, or 
that he was then (without any consideration for more 
than a one-fourth part of the estate), conveying or 
about to convey away his exclusive right to the 




r. Scberts has been examined as a vritness for the 
tiff and for the Defendants. In his evidence 
the Defendants he states^ that shortly after the 
h of the father, and as it seems in April 1841, 
Defendant Daniel consulted him with respect to a 
^sstion, which, he says, had arisen between the Plain- 
and his brothers, the question in dispute being, 
t the Plaintiff claimed the whole of the estate at 
ilwarth, and his brothers disputed that claim, alleging 
.t the estate ought to be equally divided. 


Ht appears from this evidence (whether the Plaintiff 
made this claim or not), the Defendant Daniel in- 
fox-med Mr. Roberts that he had ; and we must under- 
st^stnd from this, that Daniel knew, at least, that such a 
claim might be made, and he asked the opinion of Mr. 
^^^erts upon it. Upon w^hich occasion, Mr. Roberts 
<5ited to Daniel Sturge the cases of Loddington v. Kyme 
•'^d J}oe V. Collins, Mr. Roberts, though he had not 
*t that time any copy of the will of fT. Millf yet being 
Verbally informed of its contents, and apparently 
knowing the effect of the settlement, and of the wills 
^f ^Ir. and Mrs. Sturge, expressed himself to the effect, 
^^t it appeared, in his opinion, doubtful, what (having 
''^ajd to the intention of the testator), would be the 
*®g^ construction put^upon the will, such legal con- 
junction being, in his opinion, that the children of the 
^^ghter of Elizabeth Sturge should divide the estate 
*^* Vreen them. This being the opinion he expressed, he 
f*y ^, that Daniel Sturge told him that he communicated 
^^ to the Phintiff 

[e then speaks of the occasion of the Plaintiff's first 
^^Hing upon him, with reference to the dispute between 
and his brothers, and stating his claim to the whole 

^^ the estate, on the ground of the whole of the estate 

R 3 





being given to fV. MilVs daughter and her issue. I 
regret that Mr. Roberts has not stated the time when 
the Plaintiff first called upon him with reference to the 
dispute ; the impression on my mind is that he refers to 
October 1841, shortly before the execution of the deed. 
And he says, that he saw the Plaintiff and the Defend* 
ants at different times, and not together ; and that^ hav* 
ing regard to the intention of the testator {W. Mitt)^ 
or to the intention or understanding of their father and 
mother, he advised the Plaintiff and Defendants, that 
it would be better to compromise the matter by settling 
among themselves, by reason that litigation was at- 
tended by expense. He says, that he fully discussed 
the question in dispute with the Plaintiff alone, and 
then referred to and quoted the cases he had before 
mentioned. He is not aware that he said any thing about 
conflicting decisions ; but he told the Plaintiff what he 
conceived to be the intention of the testator. He from 
the first understood, that the Defendants wished the 
estate to be divided equally amongst them all, which 
arrangement or proposal was, in his opinion, and having 
regard to the situation of the family, a fair and proper 
proposal or arrangement for the Plaintiff to accept, aa 
it appeared the best which the particular circumstances 
of the case admitted of. He says, that he advised the 
Plaintiff to consult some other professional person re- 
specting the construction of the will, and that two or 
three days afterwards the Plaintiff told him that he 
had consulted other lawyers, and had made up his mind 
on the subject ; and he then gave directions to pre- 
pare a deed, conveying all his interest in the estate, 
which he agreed to divide with his brothers, the con- 
sideration of such deed to be reserved. 

It seems from this evidence, that the Plamtiff had at 
least some opportunity of taking other advice on the 




object, and the deed liaving bee]\ read over, as Mr. 1849. 
Boberti states, which agrees with what is stated by Mr. 
Alexander, Mr. Roberts takes on himself to state, that v. 

Ac Plamtiff fuUy understood it But it does not ap- S^urgb. 
pear, that, in fieu^t, the Fluntiff ever did consult any 
other professional person on the subject : it docs not ap- 
pear even that he had any proper means of taking ad- 
vioe on the construction of his grandfather's will ; and 
it iiB dear that he had not any proper means of taking 
•clviee on the proposed deed ; for Mr. Bolferts states, on 
oroes-ezamination, that the Plaintiff never, to his know- 
ledge or belief, obtained from him or applied for a 
dra£); or copy of the deed, and that he never promised 
or -undertook to furnish him with a draft or copy of it. 
WTurtever, therefore, might be the advice of Mr. Roberts 
tt -to consulting another professional person, it was clear 
tha:^ Mr. Roberts thought the Plaintiff should be con- 
ten'tcd with such advice as could be taken upon his 
ovrn knowledge and statement of the case, without re- 
ference to documents. Now in a case like this, I think 
it ^vas the duty of the brothers, and of Mr. Roberts, who 
was their l^al adviser, to see that the Plaintiff, who 
was or (in regard to the doubts of Mr. Roberts) might 
^ entitled to the whole estate, and who was called 
upon to alienate the whole for the alleged value of a 
fcnrth part, to take care that the Plaintiff did clearly 
vndeistand what his right was, and what he was doing. 
1b the circumstances in which they were placed, I think 
it was the duty of the Plaintiff's brothers and of Mr. 
Roberts, to see and be able to shew, that the Plain- 
tiff did, in fact, receive and act upon independent ad- 
vice as to his rightsi and that he parted with his rights 
with knowledge and on deliberation. On considering 
the evidence of Mr. Roberts, in many places ambiguously 
expressed, I own that. I am not satisfied from it that 
the Plaintiff understood, or ever had communicated to 

R ^ him, 






him, the true state of the case. He may [have known 

tlie opinion of Roberts ; and I collect from his evidence 

and his conduct, as stated by himself, that in his, Roberfs, 

opinion the wills of Elizabeth and Toby Walker Sturge 

were not legally operative ; that the title to the property 

was that which was given by the will of William Mill, 

under which the surviving children of Elizabeth Sturge 

were entitled in equal shares ; that such, at least, was 

the intention, but there was some doubt upon the 

legal construction. I make no remark upon this opi* 

nion ; for, however strange and inconsistent 'with the 

documents and with the acts done it may seem, Mr. 

Roberts may have very innocently fallen into an error ; 

and his mistake might not, by itself and in the absence 

of other circumstances, have made the deed invalid. 

He admits, however, that the legal operation of the will 

was, in his opinion, doubtful ; and I do not find that this 

doubt, in that respect, which was communicated to the 

Defendants, was ever communicated to the Plaintifil 

He says, in substance, that the Plaintiff clsuming the 

whole, but his brothers wishing an equal division, he, 

Mr. Roberts, thought it a fair proposal to comply with 

that wish, without securing to the Plaintiff* any com^* 

pensation for the greater right to which (if Mr. Roberts's 

doubts were well founded) he was entitled. 

Having considered the effect of the evidence of Mr. 
Roberts, it is proper to look at the letters, which, before 
the date of the deed, were written by the Defendant 
Daniel to the Plaintiff^ on the subject of his claims. 

The statement now made by the Defendants is, that 
the will of /r. Mill was known to the Plaintiff on the 
2nd of April 1841, and that the Plaintiff then claimed 
to be entitled to the whole estate. 




Hofwever tbis was, the Pluntiff was dissatisfied with 
his position after his father's death ; and his brothers 
intimated an intention of doing what they could to 
ntiafy hinu Thej at least knew, that a question, which 
Mr. Roberts thought doubtful, arose upon the will of 
W. MSL It does not appear that Mr. Roberts had 
tny donbt that the estate did not pass by the will of 
Mn. Stwrpe, but he had some doubt, whether all the 
somviDg children were not entitled under the will 
of IF. MtlL The question, according to the view of 
Mr. Roberts, as I collect it from his evidence and con-» 
duet, was, whether, in the absence of a fine or reco- 
irery, the estate belonged to the Plaintiff as heir in 
tail, or passed by the limitation in the will to all tho 
duUren, or rather the surviving children, of Elizabeth 
Sturge. We do not know all that passed between Mr. 
Beberts and the Defendant Daniel; but on the 14th of 
April 1841, the Defendant Daniel Sturge wrote to tlio 
Plaintiff as follows : — " Since I returned home, I have 
been thinking we may defer coming down as we talked, 
tt it was chiefly with a view to satisfy thee respecting 
'Elding will, &c. ; all other business we can do when 
thee come to 75, where thee and I can consult toge- 
ther for the best ; now as to the will and settlement, 
I thought there could be no objection to my reading 
It, and therefore went over to Tobias, and carefully 
perused the documents ; and as the will does not at all 
idate to thee (being the sole excepting cause amply 
piovided for, the eldest son for the time being), there 
u no occasion for me to bring it down so soon as in- 
tended, as thee may rest assured, nothing in it relating 
to thee would be kept back. The other documents are 
a confirmation of the will, having full power to dispose 
of the estates ; but as Tobias can leave better than I 
can now, he will most likely come down early and en- 
deavour to satisfy thee." 






Considering what is represented to have been the 
state of the case^ this letter appears to me very extra- 
ordinary. It is said^ that the Plaintiff daimed the 
estate under the will of fFUUam Mill, which was well 
known to him ; the letter refers to a will^ which is said 
not to relate to the Plaintiff at all, " being the sole ex-> 
cepting cause amply provided for, the eldest son for the 
time being." This odd expression, imperfect and inao* 
curate as it is, refers, I think, to the wiU of Mrs. Shtrge, 
made in pursuance of the settlement giving full power 
to dispose of the estates ; but no information is given 
respecting the will of William Mill, upon the construc- 
tion of which Mr. Roberts was consulted ; nor can it be 
collected from the letter, that the Plaintiff knew of the 
will of William MiU, or at that time made any dum 
under it, or was aware that any question in which he 
was interested arose upon its construction. What fol- 
lowed immediately upon this letter does not appear; 
but a search which was made for a fine levied of the 
ChiltDorth estates was unsuccessAil, a iistct which does 
not seem to have been ever communicated to the Plain- 
tiff. Whatever the Pldntiff's clum was, he was not 
satisfied by such information as he received; and a 
claim to stand under the will of his mother in the place 
of his sister Mrs. Sargeant, who died in his fietther^s 
lifetime, was suggested. This claim is imputed to the 
Plaintiff, but without evidence, by the Defendant Z>anM; 
and in a letter to the Plaintiff, dated the 11th of June 
1841, Daniel expresses himself as follows: — ** I have 
been thinking the time is approaching, when we might 
confer together respecting this supposed claim to the 
exclusion of the Sargeants on Chihcorth. I told them 
the other day thee did give me to understand, that 
their share would be thine; at all events, we should 
have to pay them or thee one fourth; and if we can 
agree amongst ourselves as to the value of one fourth, 



ml bsve J. Boberti^ dedded opinion in thy favour, we 
coold perbaps have deeds or papers prepared by him, 
ind each of ns take one share, and finally settle it by 
tk time of the stocks opening, so as to pay thee by the 
tme tkee wanted it^ 




Tbe last expression refers to the Plaintiff's want of 
QI0067, <^ ^ yns^ to obtain from his brother pe- 
dmiaiy assistance to stock his farm. Again, on the 
S7th of Auffusif Daniel writes to the Plaintiff as fol- 
lows: — ''I received thine this morning, and am not 
awtte of the repeated applications ; thee will recollect I 
wrote thee in confidence some two months ago, on the 
lolject pretty much, and I continue in the same mind ; 
bvlif thee think of going into a disputation of the will 
aid disputing Chilwartk, then I have done, and no 
doabt we shall see it our duty to oppose thy plans, for 
I leiUy be^ to suspect thee are thinking of gaining 
vote than thy fair share. It's useless for me to be ap* 
pEed to for help, as I have disposed of all my available 
^onds, and if thee must have money to pay J.BelV^ (who 
wai a creditor of the Plaintiff), '^ then I think we might 
igree to settle the business, if thee intend to come in 
uuteid of the Saryeante ; but I really know of no paper 
of any use to thee, and thee have heard J. Boberts^s opi- 
lioQ upon it, and the only chance I see is, for thee to 
join and get J. Boberts to divide the estate by the usual 
deads, and then we will pay thee a full share ; but thee 
eannot expect me to prop this forward, seeing it upsets 
the Sarpeanfs claim ; but I see thee are willing to get 
Bidiey and keep this overhead. I must speak my mind 
freely ; I do say that we should expend all our shares, 
ntlier than allow mother's will, as regards us, to be set 
aside. But this between me and thee only now, and I 
do BBJ9 that I shall consider it my place to make a stand. 
Nevertheless, I will forward thy views, if on a reason* 





able term. I am sure that paper is of no use to eitl 
of us, and I could not find from J. Roberts that it won 
avail thee. If the point is disputed, some years ^ 
elapse in the settlement I am sure, and I am anxii 
for thee to do the best with the land ; but I shall i 
say any thing to Samuel or Tobias on this subject 
present." This letter has a postscript, in which Dai 
says, '^ Thee will see I feel bound to write thee as ab( 
as one of the executors." 

These letters do not appear to me to contain any i 
pressions, from which it can reasonably be inferr 
that the real nature of the case, and the opinion of li 
Roberts thereon, had been fairly disclosed to the Pla 
tiff in the letter of the 27th of August The Defends 
Daniel expresses himself as if he had then, for the € 
time, not discovered, but begun to suspect^ that 
Plaintiff was making claim to more than his fair sb 
of the estate ; and instead of giving the Plaintiff 
information which ought to have been given, expr 
sions are used, which (whether intentionally or vi 
were, in fact, calculated to mislead him, to make hi 
believe his only chance of getting any thing was 
claim only a share as friend of the Sergeants ; that tl 
only persons interested to oppose the only plausibj 
claim that he had were the Sergeants ;' and that it wn 
the same thing to his brothers, whether he succeede 
or not : — that they were, in fact, disinterested, whic 
they clearly were not. 

Under all these circumstances, I am of opinion, ih 
the deed of October 1841 cannot stand as against tl 
Plaintiff. I think that the Plaintiff did not know h 
right to the whole of this estate, and although a mi 
take in that respect might not alone have made tl 
deed invalid, yet, in the absence of a full and free di 



clo^iire to the Plaintiff of all the material facts and 1849. 
nmstances which were known to his brothers, and ^"^^^"^"^ 


60 much reason to think that the Plaintiff was v. 

sbO^xially misled^ I am of opinion, that a deed obtained Sturge. 
him without adequate consideration, when he was 
pressure for want of money, ignorant of his 
and either without legal advice, or with advice 
to promote the wishes and the interest of those 
^^nri'tli whom he was dealing, cannot be sanctioned by 
tlie Court; and I think, that, in strictness, and so far as 
it can with justice to others, the deed might be set 
nside, and the Plaintiff be held entitled to have the 
estates reconveyed to him, he accounting for the 950/. 
"wHich he received with interest. But it appears, that 
the estate or some considerable part of it has been 
sold, and the Plaintiff by his bill prays, that he may 
be at liberty to elect to take the purchase-monies in 
lieu of the parts of the estate which have been sold ; and 
At the hearing, I understood, that he was willing to take 
^ purchase-money and confirm the purchases ; and if 
^hat be the case, the decree will be to take an account 
^f the purchase-monies received^ and for payment of 
^e balancej after deducting the 950/. 

I am of opinion that the costs of the suit must be 

P^d by the Defendants Daniel and Tobias Walker 

^^Tge ; and, if it cannot be otherwise arranged, the 

"iaiu tiff must pay the costs of the other Defendants, and 

***vixig them over against the Defendants first named. 

^OTB. — An appeal to the^Lord Chancellor is now pending. 




Nov, 6. 


A solicitor 
was concerned 
in a cause for 
two parties, 
and a petition 
was served on 
him which 
affected one 
only, but 
without any 
intimation m 
respect of 
which of these 
parties he 
was served. 
He appeared 
on the hear- 
ing for both. 
Held, that the 
party having 
no interest m 
the matter 
was entitled 
to his costs. 

A SOLICITOR was concerned in the cause for 
"^^^ Defendants, Captain Baghott and Mrs. Bagho 
In 1841, an order was made, that Captain 
should pay a sum of money to Bennett. The 
haying recently been applied to to draw up the ord( 
he declined, on the ground of the great delay which 
taken place. A petition was now presented to 
the order drawn up, which concerned Captain B^ 
hott alone. The petition was served on the solid 
of both Mr. and Mrs. Baghott, without any intima^Sc^n 
in respect of whom the service was made. Both 

Mr. Giffard in support of the petition. 

Mr. Jessell, for Mrs. Baghott, admitted that she 
not interested in the matters of the petition, but 
for her costs of appearance. 




Mr. Giffard, in reply, resisted this, and argued, 
the solicitor ought to have known that the petitio 
was served in respect of Captfdn Baghott alone; am^ 
that he ought not, therefore, to have appeared fo^^ 
Mrs. Baghott. 

The Master of the Bolls said, he could not reftw^-^^^ 
the costs, no intimation having been ^ven to the solicitor^' 
in respect of which of his clients he had been served. 

NoTB. — See Bruce y. Kmlock^ 1 1 Beavan, 4^2.> and the note. 




T^HE testator, Henry Geast Dugddle, by his will. Real estates 
■*• dated the 17th of December 1839, devised his real J^JJ^JHT^ 
estates to the Plaintiff, William Stretford Dugddle, for raise a legacv 
»>6 term of 1000 years, in trust to raise the sum of next of kin. 
2000L to be equally divided amongst such of his next "^ he l^acr 

WAS r&iscu 

'*' kin, both maternal and paternal, as should be living and carried to 
»t the time of his death, (a) » ""^V* .. 

^ ' account in the 

suit, and after- 

The Plamtiff, being heir-at-law, and sole trustee and wards, costs 

were uicurrcu 
^^cutor, by his bill alleged, that he was unable to dis- i„ ascertain- 

^ V«r who were the next of kin pointed out and entitled !^ the class 

* m the Mas- 

^Oer the will, and he prayed, amongst other things, a tePs office, 
•f^erence to the Master to inquire who were the next of^eieratew 

Idn entitled to the 2000/. directed to be raised out of such costs 
fc^ real estates, and the shares io which they were b^^ charge 
ispectively entitled. on the estate, 

and were or- 

The Defendants were all of them infants, and, by raised, 
^eir answer, only submitted their rights to the proteo 
i-on of the Court 

Sy the decree, made on the 29th of June 1841, after 
directing the usual accounts, it was referred to the 
faster to inquire who were the next of kin, both ma- 
^nud and paternal, of the testator living at the time of 
liis death ; and the Master was to inquire of what real 
^^ttLi^ the testator was seised. 

The Master, by his report dated the 10th of May 
found that Louisa Ann Dilke and Penelope Packe 


(a) S.C.n Beavan, 402. 






were the testator's only next of kin on the paternal a 
living at his deaths and that Charles Baldwin was < 
of the next of kin of the testator on the maternal si 
and that no other person had claimed to be such n< 
of kin. 

By an order made on further directions on the 22 
oiJuljf 1844, it was declared, that the 2000Z. was w 
charged on the premises comprised in the term of 10 
years created by the will, and certain accounts and 
quiries were directed to be made, and directions giyi 
respecting the said sum of 2000/. and interest, a 
whether the same should be raised by sale or mor^i^ 

A sufficient sum was afterwards raised by sale 
payment of the 2000Z. and the interest thereof, whi( 
at the date of the Master's report, amounted togetfa 
to the sum of 2558/. 2«. 0^. 

By a subsequent order, dated in August 1847, tl 
sum of 2563/. 13^. 4(/., the amount of the princips 
sum of 2000/., and interest thereon up to the 17th da 
of August 1847, was paid into Court by the Plaintifi 
to the account of the next of kin of the testator Henr 
Geast Dugdale. 

By the report of May 1844, it had been only fouw 
that Charles Baldwin was one of the next of kin of t] 
testator on the maternal side, and consequently, on tl 
18th December 1847, a further inquiry was directec 
and by a report dated the 29th of January 1849, tl 
Master, after great inquiry and taking much evidenc 
found (what he could not find at first) that Cluirl 
Baldwin was the only next of kin on the matem 
side of the testator, living at the time of his death. 



TOiifl petition was presented by Louisa Ann Dilke and 

executors of Penelope Packe ; and it prayed for 

payment to them of their respective thirds, and further 

pmjed, that their costs of making out, proving and 

establishing their respective claims before the Master, 

as i¥ell as of this {)etition9 might be paid to them out 

of a fund, raised or to be raised from the real estate ; 

and, a stop order having been obtained by Richard 

Spooner Jacques Wintertony it was prayed that he 

ought pay the costs occasioned by giving him notice of 

the petition. 




Dug DALE. 

Mr. Turner and Mr. Spooner, for the Petitioners, 
the next of kin ex parte paternd, argued, that the diffi- 
culty having been created by the will of the testator, the 
ccists of ascertaining the class ought to be borne by the 
estate. That the rule was admitted in Hutchinson v. 
Freeman (a) and Shuttleworth v. Howarth (ft), in which 

^^*^»e8, persons who were not parties to the cause, but 


^"tervened, were held entitled to their costs of making 
^^t; theu: claim. 

3tfr. W. T. S. Daniely for the next of kin ex parte 
^"^^^temd. The suit is for an administration of the 
^^stator's estate, and the terms of the will made it 

' ^^cessary to ascertain the class, (c) The estate ought, 
™^refore, to bear the costs. When the amount was 
P^*d into Court, it was not carried to the account of 
***© individuals now found entitled, but generally to the 

•^^cotmt of « the next of kin," &c. 

A&. Stevens for the infant Plaintiff. The costs 
^'^i^Ht not to come out of the general estate, but ought 


C«i) 4 MyL tj Cr. 490. (c) Beanies on Costs, 14. 341. 

fb) 4 Mi/L «5- Cr. 402. (1st cd.), and p. 8. and 227. (2d 


Vol. XII. S 







to be borne by the legatees^ or, at all events, no coets 
ought to be allowed subsequent to the time when the 
fund was severed and carried over to a separate account. 
The general rule is, that creditors and next of kin» 
going in to establish their claims before a Master^ 
pay the expenses of so doing ; but that if, after having 
established their claims, they are permitted to mix in 
the cause as if they had been parties, then in respect 
of such proceedings they may be entitled to their 
costs, JVaite v. JVaite (a). Hutchinson v. Freeman, and 
Shuttleworth v. Howarth are inapplicable, for in those 
cases the costs were paid to the legatees out of their 
own fund, they being entitled to the residue. 

In Wcdlis V. WilUams (i), a party was held not en- 

titled to his costs of proving in the Master's office his 

relationship to the testator ; and in Jenour v. Jenour {c\ 

where a legacy had been severed, the Court observed : 

^^ As to the costs, there is a distinction between this 

and the ordinary case of costs out of the estate; for 

though it is true that rule prevails where a question 

arises between the individual and the person taking the 

bulk of the estate, how far the bulk of the estate is to 

answer for a legacy, a sum of money, or a portion^ 

yet, if there is no question between the latter and 

persons claiming against him the bulk of the estate* 

but, after he has paid out of the bulk, and done all that 

is incumbent upon him, a question arises as to the 

interest in that property, clearly severed from the bulk, 

the expense of questions touching that fund ought to be 

thrown upon the fund itself." Here some of the costs 

were unnecessarily incurred by obtaining an imperfect 

report ; and this application is too late, for no further 

directions were reserved by the decree. 


(a) 6 Mad. 110. (c) 10 Vet. p. 571. 

(6) Beamet on CosU, 227. 


The Master of the Eolls. I will consider this 
It is too important to decide without examining 
tbe authorities to see if they lay down any principle. 
It is admitted that this is a new case, and that the 
Court is asked to do that, which it has never been 
asked to do on former occasions. 





The Masteb of the Eolls. It appears, from the 
facts of this case, that the fund standing to the ac- 
count of the testator's next of kin belongs, in equal 
durd parts, to Louisa Ann Dilke, one of the next of 
bi of the testator living at the time of his death ; 
to Edward Packe, James Pache and Augustus Packe 
(the executors of Penelope Packe\ another of such next 
rf kin, and to Charles Baldwin^ the only other of 
siioh next of kin. (a) 

The question is, whether the next of kin are entitled 
to any costs incurred since the fund was set apart. 

Aa the fund could not be distributed or the charge 

wMed, without ascertaining who were the next of 

Im, and as the question who were the next of kin 

nmvoidably arose under the will of the testator, I 

think that this estate was, from the first, liable to pay 

the costs of the inquiry ; and that, having regard to the 

8tste of the cause, the circumstance of the money 

being raised and set apart, before the next of kin were 

aecert^ed, does not make any difference. 

Nov, 8. 

The whole costs must, therefore, be raised. 

(fl) See 1 1 Beavan, 402. 




yov. 5,e. BROWN v. O AKSHOTT. 

Case and riiHIS was a motion, made on behalf of parties bei 

niitted"and ficially interested, for a Receiver and managei 

taken by trus- a brewery, carried on by executors and trustees, t 

templation of ^0 for the usual order for production of documents. 

the Vitii^ation, 

held privileged • . tTxi.-i -i.-ii 

as against the As to the production, the Defendants admitted t1 
iru"t*' ^"^ ^^^® trustees and executors, and said, that tliey 

stated a case for the opinion of Counsel. With respcci 
this, the answer contained the following passage : " A 
these Defendants say, that the statement mentioned 
the schedule as submitted to Counsel in the month 
November 1848, was so submitted and his opinii 
thereon taken in contemplation of the present litig 
tion;" and they submit, "that. the said case a 
opinion arc privileged and ought not to be produced.* 

Mr. Roffersy in support of the motion. If the I 
fcndants had stated, that they had taken this opinion 
their own personal guidance, and that it had been p 
for out of their own funds, the case and opinion mi< 
perhaps have been considered privileged; but bei 
taken by parties holding a jSduciary character, at 
expense of the estate, their cestuis que trusty to wh 
they belong, ought to be allowed to inspect th< 
There can be no valid reason for concealing them fr 
the parties interested. 

Mr. Turner appeared on the motion for the trust 
and executors, and 



IMi-. Foster f ]VIr. Godfrey , Mr. BriggSy and Mr. 6Vm- 
r for other Defendants. 

IThe Master of Oie Rolls^ without hearing the De- 

fe vr^dants, said : — I do not know what motive the De- 

fsxmdants may have for not permitting an inspection; 

\suLt if they refuse to produce them, I think they have 

a right to do so. 







2soxi. 6. 

T^HE London Dock Company were, by their act, em- Under an act, 
powered to take the necessary lands. The pur- *'^'^*" "T"'" 
^"^^^•money of some property thus taken was paid into distributed on 
Coixirt, and the act directed, that the same should be Reference ^ 
^PlAied under the direction, and with the approbation," being directed 
^* "tljc Court, " to be signified by an order made upon the persons 
* Petition to be preferred in a summary way." entitled, one 

* •' "^ i^rho was not 

a party to the 

tTpon the death of the tenants for life, a reference to T^^'f j;^"^^ 7"^ 

xi ' ^ '^ m thereunder 

^^ I^f aster was, in 1841, made, upon petition, to ascer- and failed. 

^^H the heir-at-law ; but the order contained no direc- fii^V billion 

^^^ for the production of deeds and papers, or for the the ground 
e:3r««. • .• /• X* that he was 

"^^rximation of parties. i,^ ^^^^ ^p ^jg. 

covery and 

I evidence, 

XI 1848, Hyde and wife, who claimed the fund, peti- which he 

'^^cd for a reference, and for an order for production l;"®."'^ "f* ®^" 

*^^cl examination of parties. Tliis the Master of the ferencc. The 

lion, refused ^-ith cost., (a) SeW .tt"^ 

Hyde the bill was 

/ \ 11 7> -o not demurra- 

(«) 112?^flr.i8. hie, neverthe- 

less stayed the 
proceedings therein until the Master had made his report. 

S 3 







Hyde and wife then went in under the pending re- 
ference^ but their claim was disallowed. They then 
filed this bill to establish their claim, and a demurrer 
thereto, on the ground that the Plaintiff's remedy was by 
petition, was overruled by the Master of the Bolls, (a) 

The Defendant Edwards now moved, that all the 
proceedings in this suit might be stayed generally, or 
until the Master should have made his report. 

Mr. fValpole and Mr. Stevens, in support of the mo- 

The Court will not allow double proceedings to go 
on simultaneously for the same object. Here, the 
Plaintiffs, with full' knowledge of the alleged difficulties, 
have gone in under the reference : they have submitted 
to the jurisdiction and elected their remedy, and are, 
therefore, precluded taking another proceeding for the 
same purpose. At all events, the Court will await the 
Master's report, when all the facts, claims, and cir- 
cumstances will appear, and thus enable the Court to 
judge, whether any further proceedings are necessary 
or proper. 

Mr. Lloydy for other Defendants. The Court has a 
general jurisdiction to stay unnecessary and improper 
proceedings. Here the two proceedings cannot go on 
together without the danger of a conflict, and one or 
other must be useless and fall to the ground. The 
Court, in the exercise of its discretion, must impose 
some terms on the Plaintiffs. 

Mr. Turner and Mr. Elderton, contra^ for the Plain- 
tiffs. The decision on the demurrer sanctions the Plain- 


(a) Antc^ ICO. 



idflfs' right to proceed in their suit. The reference has 
^en found inadequate to do complete justice. There 
r no power to examine the parties, or to compel them 
o produce important documents in their possession. 
^e Master has also refused to allow a vivd voce ezami- 
ation, or to make a separate report on the Plaintiffs' 
laim. They may, therefore, be indefinitely delayed, 
.lid their witnesses, who are extremely aged, may die 
rUle the suit is stayed. 

If the Plaintiffi are bound to elect, they must be put 
their election in the usual way by order of course. 


2^ Masteb of the Rolls. 

3?he interference of the Court, by staying the pro- 
eding in a suit in such a case as this, is a matter of 
aocretion, and it must be exercised on a full knowledge 
&11 the circumstances of the case, so as to give a rea- 
Kxsdble foundation for the order made. The circum- 
of this case will more satisfactorily appear when 
the Master's report. If I saw a fair probability 
obtaining it without delay, I should stay the pro- 
'^^^ngs until I saw the report, when the nature of the 
^ims of the different parties would appear, and how 
are supported. It is said in one of the affidavits, 
the report may be obtained within six months, and, 
^^er these circumstances, I shall direct the proceed- 
^8 in the suit to be stayed until a fortnight after the 
I^rt is made, with liberty to apply in case of any 
^^roper delay in obtaining the report. 

ffirmed by Lord CottenhaWy 26th Novertiber 1849, 1 Mac, ^ G. 
^^-, and 1 Hall ^ Tw, 552. His Lordship however thought, that 
^ order of reference upon the petition ought to have contained a 
for production of documents, and for the examination of 

8 4 



^^''^* «• In re REES. 

Application " ^^RIFFITHS, the executor of the testator, em- 
legatee, more ^^ ployed Recs as his solicitor. On the 23d o£ March 

than twelve 1849, Morgan, who was entitled to the testator's estate. 

months after - , . 

payment, for presented a special petition, stating such employment : 

JwhdSs"''^ —that Griffiths died in 1847, without having come to 
bill against any settlement of accounts with Rees for the business 

reftised ^"not- ^^^^ ^^^ ^^^ estate of the testator : — that in the year 
withstanding 1845, Griffiths received, on account of the testator's 
some agree- estate, a sum of 300/., and that lOOZ. part thereof was, 

ment between ^yith the consent of Itees, paid to the Petitioner, and 
the lecateeand 

solicitor, and 200/., the residue, was lodged by Griffitlis in the hands 

that payment f Bankers in Carmarthen^ to meet the claim of Rees. 
had afterwards 

been made 

back"of\^h^e ^'^^^ ^^^^ Petitioner signed an undertaking dated 

legiitee. the 19th of February 1845, which was partly in the 

taxation.made i*^llowing terms: — "I hereby undertake and promise 

upon affidavit to pay to R. Recs any sum or sums of money that may 

charged wUh bo fairly or reasonably due to him, upon the rendering 

^^/ ^^® his bills and accounts, over and above the sum of 

having mis- 200/. this day lodged in the Bank for the purpose of 

represented jigcharmng such bills, and should Mr. Rees's bilk 
the case, and o c» > ^ ^ 

the real facts not amount to the sum of 200/., then the overplus 
not u> warrant *^ ^^ handed to me. C. Morgan.'^ The petition stated, 
the order. that no bills of costs had been ever rendered by Rees 

to the Petitioner, or, as he believed, to Griffiths in his 
lifetime. The Petitioner, submitting to pay what was 
due beyond the 200/., prayed a delivery and taxa- 
tion of the bills of costs. 

This petition was served on' Rees at Carmarthen on 
the 26th of J/arc/i, and, on the 31st of itfiirc/t 1849, 
Recs not appearing, an order was made according to 
the prayer. 



Jieei now presented a petition^ from the evidence 
ia, support of which it appeared, that hU bills of costs 
bf^l been delivered to Griffilht in June 1846, and had 
been paid on the 27th of June 1846, out of the money 
deposited in the bankers' hands, leaving a balance of 
81 /• It appeared also, that in 1846 or 1847, Morgan 
had notice of the fact. 

7he second petition prayed, that the order for 
tucation &c. might be discharged as to all matters 
prior to the 28th of June 1846. 

!Mr. Turner and Mr. U. F. Smith, in support of the 
petition. The order obtained on the 3l8t oi March 
is irregular, so far as relates to the bills of costs paid 
more than twelve months previously, for whenever 
the Solicitors' Act applies (a), the Court cannot, in 
such case, send a bill for taxation as against the soli- 
citor: In re Downes{b). This rule applies where 
payment is made by trustees &c, and the application 
for taxation is made by the cestui que trust. In re 
Massey(c)» The order was obtained upon a false 
statement as to the nonpayment, and the Kespondent 
ought to be charged with the costs of this petition. 

Mr. Chandless, contrik. The order was obtained 
upon special petition, and not as of course, and there- 
fore the rule as to suppression of material facts is 
inapplicable. The solicitor allowed the order to be 
taken in his absence, and, therefore, if the order be 
discharged, no costs ought to be given, and if it be 
discharged, it ought to be discliarged entirely. 


(a) 6 & 7 rtd. c. 73. *. 41 . (c) 8 Beav. 458. 

(b) 5 Beav. 425. 


In re Rbbs. 

1849. The undertaking of February 1845 created a privity 

between Morgan and Bees. Morgan thereby under- 
took to pay Rees any sum ^^ that might be fairly due 
to him upon rendering his bills and accounts." This 
implies that the bills and accounts were to be rendered 
to and settled by Morgan. The agreement gave him a 
right of taxation, which could not be destroyed by a 
private arrangement between Rees and Griffiths, with- 
out|[his consent and against his interest. The case 
is very different from a cestui que trust coming to tax 
the bill of the solicitor of the trustee with whom he 
has no connection. 

In Balme v. Paver (a), a Defendant, upon a com- 
promise of a suit, agreed to pay the Plaintiflfe* costs : 
Lord Eldon held, that the Defendant was entitled to 
have them taxed. In Vincent y. Venner (&), the same 
rule is stated, and Sir John Leach says, '^ The party 
agreeing to pay" [the costs of another party] '^stands 
in the place of the solicitor's client, and has all his 
rights to ascertain the just amount of costs ;" the rule 
is stated in Chambers v. Sadler (c) and Lady Langford 
V. Mahony{d). There has been a juggle between 
Chriffiths and Rees to avoid taxation ; but there has been 
no payment, as against the party thus entitled by agree- 
ment to have the bill taxed. 

The Masteb of the BoLLS. This order cannot 
stand in its present form. 

These bills of costs were payable out of the funds of 
Morgan ; and he had an undoubted right to have them 
taxed, under the Act, if he had applied in time. But 


(a) Jacob, 305. (c) 1 Add. ^ ICL 717. 

(b) 1 Myi. ^ K, -214. ((0 4 i>r. 4- War. p. 109. 


In re Rbbs. 

in JwM 1846, the executor, who was the client and 1849. 
the party liable to pay, agreed upon the amount, and 
paid the bills, behind the back of Morgariy out of the 
200il deposited at the Bankers, leaving a considerable 
balanoe* It then became unnecessary to resort to the 
undertaking oi Morgan, which, in consequence, never 
oaine into c^ration. 

I am ccmipelled to say, that Morgan had very early 
notioe of this payment, tiiough he denies it. The sur- 
plus which belonged to him was even offered to him, 
but he refused to receive it. Even after the payment, 
he might have been entitled to a taxation, if he had 
come in due time; but instead of that, he comes 
for a taxation years afterwards, and instead of stating 
bis case truly and fully, as he was bound to do, he 
allied a case not warranted by the facts, but which, 
if tme, would have justified the order then made. He 
0tated that there had been no delivery or payment: 
tlie facts were otherwise. 

It is argued, that this was immaterial, because the 
petition was served ; but I cannot agree in that. Why 
Beei did not appear, I do not know. The reasons 
stated by him are not satisfactory ; for although he was 
not then in a condition to make his defence, he might 
have appeared and asked for time. 

The order cannot be sustained ; for, upon the facts 
now appearing, the law does not allow Morgan to open 
the settlement of accounts. He may be entitled to a 
taxation of the subsequent bills ; but his Counsel de- 
clining it, the order must be altogether discharged. 

liooking at the conduct of Morgan, I think he ought 
to pay the costs of the present petition. 



May 7. 23, 24. ROBERTSON V. SKELTON. 

Kov, C. 

A purchaser TN July 1846, two houses were sold by auction, in a 
from the -1. creditors' suit, and were purchased by Hiffinbotham. 
equity the By the conditions of sale, he was to get the report con- 
oTe^^tS con. firmed before the 8th of August 1846, and pay his pur- 
firming the chase money into Court before the 12th of Ntwember 
any'deteriora- 1846, and be let into possession as from the 29th of 

tion of the September 1 84 6. 


arismg from 

fire!*^^*th^'^t*^^ In consequence of the purchaser's de&ult, the Plain- 
the deiault of tiff, on the 20th of April 1847, obtained an order to 
faUs^upon'^the confirm absolutely the Master's report of the best pur- 
purchaser, chaser, (a) 

If, between 
the contract 

and convey- Jn June 1 847, on an application by the Plaintiflf to have 

arises bv acci- the purchase money paid into Court, a reference was 
dent, which made to the Master, to enquire whether a good title 

legal obliu^- could bc made. 

tion, which 

must be im- 

rocciiately In July following, the vendor being in possession, a 

expense' in- P^^t of the property fell down and damaged the adjoin* 
curred by the j^jr property, the owner of which threatened to brinjr 

vendors is oii^^ ^ p> 

payable by the an action. The other parts of the premises were ruinous 

purchaser. j danj^erous to the public. 

After the *^ *- 


fp^Tof't'hf ' The Plaintiff petitioned for a reference to the Master 
premises fell to asceilain what was proper to bc done ; but Higin" 

down and , . 

damaged the ootham^ 

neighbouring («) 10 Beizvan, 107. 

property, the 

owner of which threatened to brin«! an action, and the remainder was ruinous and 
dangerous to the public. The ^vendor having reinstated and repaired the premises, 
the Court held, that the purchaser was bound to indemnify him, and on petition, 
ordered a rtfference to ascertain the expenses properly incurred. 


iotham, though served with the petition, declined being 1849. 

a party to the reference, and obtained his costs of the ^^^^^' 

proceeding. v. 


The Master reported that the damage done to the 
neighbonring premises should be repaired, and that part 
oF the premises should be shored up, and certain repairs 
done to the premises, in order to render them habitable 
&zi<] retain the tenants. The report being confirmed, 
the proposed repairs &c. were done at an expense of 
S2l, and the costs of the proceeding amounted to 118/. 

The Master having, in March 1849, reported, that a 

good title could be made, a petition was now presented 

by the Plaintiff, praying that the purchaser might pay 

Iws purchase money, with interest from the 12th of No- 

'Otmber 1846, and the amount paid for repau*s and costs, 

and that the Receiver might pay him the rents from the 

29th of September 1846, and let him into possession. 

The only point now argued was, as to the liability of 
the purchaser to pay the sums expended in repairs and 

Mr. Martindale, in support of the petition. 

In equity, an estate agreed to be purchased is con- 
sidered the estate of the purchaser from the time of the 
contract, and the purchase money from that time is 
held to belong to the vendor, (a) 

** The consequence is, that if, after the contract, the 
estate be improved in the interval ; or if the value be 


(a) Harford v. Furrier, 1 Madd. p. 538., and Acland v. 
Garsford, % Madd, 32. 






lessened, by the failure of tenants or otherwise, and no 
fault on either side, the vendee has the benefit or sustains 
the loss. If there be a loss by fire, after the contract 
and before the completion of it, and neither party is in 
fault, the loss falls upon the vendee, as was held in 
Pitine ▼• MeUer (a), and admitted in the later case of 
Spurrier y. Hancock (b), though there, the bidding 
not being confirmed by a report, the Lord Chancellor, 
on the authority of the Attomey'General v. Day^c)^ 
held the vendor was responsible for the loss. The gain 
or loss on an estate fiedls upon the person to whom the 
Court holds the estate to belong. If a reversionary in- 
terest is agreed to be purchased, and lives drop before 
the conveyance, the vendee has the benefit. The same 
rule prevailed in the civil law."(rf) 

Here, the report was confirmed before the accident, 
and from the time of the confirmation, at least, the oon- 
tract was complete. In Ex parte Minor (e), the premises 
were burnt before the confirmation of the report, and on 
that ground Lord JEIdon allowed the purchaser a com- 
pensation. Again, in Twigg v. Fijkld (^), his Lordship 
acted on the same principle, considering the purchaser 
as having the purchase from the confirmation of the 
report. In subsequent cases, it was thought, that the 
contract was made the moment that the purchaser's 
name had been entered in the Master's book {Anson v. 
Towgood(h)y Vesey v. Elwood{i)y From the confirmation 
of the report, at the latest, then, the purchaser was|, 
in equity, the owner of the property, and the vendor 
his trustee. The purchaser, therefore, is bound to in- 
demnify his trustee from any loss or liability attaching 


(a) 6r«.349. (0 11 r«.559. 

(6) 4 F«.667. (g) 13 Vet. 511. 

(c) 1 F«, sen. 221. (A) \Jac.^ fr.637. 

(</) 1 Madd. p. 539. (i) 3 Dr. cj- War. 74. 



to or incarred In respect of the property between the 1849. 
contract and its completion. 

"Where a vendor is bound to keep up an embankment, 
or to keep in repair, or to perform other coyenants in 
respect of the property, he must, for his own protection, 
perfcnrm those duties, in the interval between the con- 
tract and conveyance, if the vendee will not do so. 
The vendor remaining legally liable, is not to expose 
himself to actions at the suit of third parties, or in- 
dictments, by neglecting to perform his obligations to 
third parties and his duty to the public 

Performing those duties, the vendee must indemnify 
him against all the damages and expenses sustained by 
him, including the costs occasioned by the purchaser's 
not concurring in the necessary arrangements. 

In this case, the vendor was not bound to submit to 
an action at law at the suit of the owner of the neigh- 
bouring property, or to proceedings by the parish under 
the Metropolitan Building Act. {a) 

He also cited StigdetCs Vendors (b) and Garrick v. 
Eiari Camden, (c) 

Mr. Steere, cantrdy for the purchaser. This is a case 
of pure waste on the part of the vendor, and differs from 
the cases of fire and accidental damage. The purchaser 
becomes owner, not from the confirmation of the report, 
but firom the payment of the purchase money : Machrell 
v. HtaU{d)f per Lord Hardmcke; and Lord JEldan, in 
I^ime T. Mdler{e), by the reference made by him to 


(a) 7 & 9 Fie/, c. 84. i. 40. (d) 2 Madd. 34. note. 

(A) P. 71. 74. 331. (1 1th ed.) {e) 6 Va. 349. 

(c) 2 Cox, 831. 







the Master^ seems to have considered it from the ac* 
ceptance of the title. 

The purchaser was unable to take possession without 
waiving all objections to the title, and in the mean while, 
the vendor had no right to lay out money on the estate 
without the authority and consent of the purchaser. 
If a man thinks fit to improve the property of another 
without authority, he cannot recover the amount of his 

Here, the claim is for unliquidated damages, which 
must be recovered by action at law and not in equity : 
Denton v. Stewart {a)^ Toddy. Gee.{b) At all events, 
the claim should be brought forward by supplemental 
bill. Nelson v. Bridges{c\ giving the purchaser an 
opportunity of examining and cross-examining the 

The delay is attributable to the vendor in making 
out his title, and who therefore must bear the interim 
loss {d) : Foster v. Deacon (e), Ferguson v. Tadman (y), 
Minchin v. Nance. (Ji) 

The purchaser is not liable to the costs of the re- 
ference. Camden v. Benson (i) seems to be incorrect : 
Flower v. Hartopp. {k) 

Mr. Martindakf in reply, did not ask the costs of 
the reference as to title. 


(a) 1 Cox, 258. cj 17 Ves. 

(b) 1 7 Vet. 273. 
(r) 2 Beat, ^39. 

l<i) Sec 1 Afad(L p. 540. 

(e) 3 Mad. 394. 
(g) 1 Simons, 530. 
(/O 4 Beav. 332. 
(i) I Keen, G7\. 
Q) 8 Beav. 200. 



The Masteb of the B0LL8. 1849. 

I will look at the authorities^ to see the principle to Robertson 
deduced from them. SkbIton. 

The Masteb of the Rolls. 

On the 20th of April 1847, an order was made to 
confirm absolutely the Master^s report, finding Mr. 
H'iginhotham to be the purchaser of the property, to 
^V'liich a good title was afterwards made. 

^ J the established rule of the Court, the purchaser is 
^ l>« considered, in equity, as the owner of the estate, 
f>x>m the date of the order confirming the report ; and 
•^y deterioration of the property arising from accident, 
•® ^ J' fire> without the fault of the vendor, falls upon 
tno purchaser. 

Xn the month of July following the date of the 
sr, a part of the property fell down, and if that had 
'H all, the loss would, in this case, have fallen upon 
^*^^ purchaser. 

^ut the falling of a wall did injury to the adjoining 
P^X>j)erty of Mrs. Hutchinson^ and the injury to her con- 
^**^^ed, and could not but continue, so long as the 
^^l>l)i8h which had fallen on her premises was allowed 
^^ '•^main. Moreover, a part of the property which had 
actually fallen had become ruinous and was danger- 
^^s to the public (a) 

*3lie vendor, being in the possession of the property, 
liable to actions and indictments for the injuries done 
impending. He was, by reason of his possession, 


(fl) MetropoKfan Btti/dings* Act, 7 & 8 /'iW. c. 84. *. 40. 




18491 under 'legal obligations to compensate, remove, and 
Robert^ obviate the injuries done, continuing and impendmg, 
v. and being under such obligations, he expended money 

in satisfying theuL One of the objects of this petition 
is, to obtain an order that the purchaser may repay that 

There is no complaint as to the state of the property 
at the time of the sale, or at the time when the pur- 
chase was confirmed ; and it is not alleged, that the 
completion of the purchase was in any manner delayed 
by the vendor. For any thing which appears to the 
contrary, the state of the property was known to both 
parties equally ; and if it had not been for the neglect 
or delay of the purchaser, he might have had possession 
of the property at the time appointed by the conditions 
of sale, viz» : in November 1846. 

In equity, the estate belongs to the purchaser from 
the date of the order to confirm the report, and the 
right to possession belongs to the vendor, till the pur- 
chase money, for which it is security, is paid. 

The right of {possession is accompanied by the obli- 
gation to account for the rents received; but notwith-« 
standing the existence of this right to possession, it 
cannot be said to be accompanied by all the duties and 
liabilities usually annexed to the possession, as a loss 
occasioned by accident, as by fire, faUs upon the 

I am not aware that the cases have gone further than 
to determine, that the purchaser is to bear the loss o<> 
casioned by the deterioration of the purchased property ; 
but if the accident by which the loss arose brings with 
it legal obligations, which must be immediately satisfied, 



cannot be eatiBfied without incurring expense, it 1849. 
appears to me that the case falls within the same prin- j^^^i^ipgoN 
dpHe, and that the expense so incurred ought to be v. 

sepoid by the purchaser, in respect of whose property 

the aCoidentB be£sdling it the obligation was in-> 

The Plaintiff, in this case, holding a representative 
<duuRacte^, very properly considering that it would not 
be aafe for him to incur the expense without the 
fliuiction of the Court, obtained a reference to the 
3f aster to inquire into the subject ; the purchaser de- 
dined to be any party to the reference, and the report 
was consequently made in his absence ; but as far as 
ihe testator^s estate was concerned, it has been found 
that the sum of 51/. 10«. was an expense proper to be 
u^curred for the purposes in his report mentioned, being, 
substantially, the purposes necessary to satisfy the obli- 
gations occasioned by the accident, and to the amount 
of them I think ought to be added the fee of 21. 2s. 
•Bowed to the district surveyor. 

The other costs which are prayed by this petition 
flccm to me to be costs incurred for the protection of 
tbc testator's estate, or of the persons responsible for its 
due application. The costs of the order of the 16th 
September, 1847, the charges of the surveyor employed 
hy the Receiver, and the fee to the solicitor of Mrs. 
Bntehmean, were costs and expenses which I may 
condude to have been properly incurred for the pro- 
tection of the trustees ; but it does not appear to me 
tint they are properly chargeable against the purchaser. 
I'or do I think that the purchaser is bound by the 
Master's report to admit, that the sum o{ 511 lOs. 
thereby authorised, or the sum of 21. 2^., which was 
pud to the district surveyor, was properly payable. 

T2 If 







If he desires further investigatloii, I think him entitled 
to it 

There must be an order for payment of the purchase 
money with interest^ as prayed, and an order for an ac- 
count of rents. If the purchaser desires an account of 
the expenses properly incurred, and paid in respect of 
the purchased property, by reason of the accident 
which occurred in July^ 1846, that inquiry must be 
made before any order is made for payment of the rent ; 
but if he is willing to admit the payment of 51/. 10^. 
and 2/. 2^., I will direct the amount to be deducted 
from the rent payable to him, and the rent to be paid. 

Both parties being, as I think, in part wrong, I shall 
give no costs of this petition improperly incurred. 

The costs of the inquiry, if taken, to be reserved. 



In re The DIRECT LONDON and PORTS- ^Vor. 9. 

MOUTH Railway Company. 

TN the case of Cohen v. Wilkinson (a) an injunction A petition was 

^ , presented to 

^"^ was granted on the 18th of June 1849, to restrain ^jnd up an 

^he application of the funds in the construction of a incorporated 
^m , , railway com- 

flBction only of this railway. pany, but be- 

fore it had 
been heard, 

Xhe Defendants appealed ; but before it could be an act iiassed, 
Aeard, and on the 24th of July, the Plaintiff Cohen guch^S 
I'r-ie^ented a petition for the dissolution and winding panies. No 

of the Company under the 11 & 12 Vict c. 45. gj^gn on dis- 

missing the 

lefore any order had been made upon this petition^ 

on the 1st of August 1849, the 12 & 13 Vict. 
.08. passed, which excepted railway companies in- 
porated by act of parliament from the operation of 
Winding-up Act. 

The petition, therefore, could not now be prosecuted, 
the question was, how the costs were to be dis- 


Mr. Turner and Mr. Cole, for Cohens argued that, 
the Petitioner was right at the time he presented 
petition, he ought to have the costs. 

Mr. Malins and ISIr. W. J. Bovill, for the Railway 
^^Dmpany, argued that the petition ought never to 
ve been presented, for the Company, though imder 
injunction, had not ceased all their operations, and 


(a) Ant^, p. 137. 

T 3 




In re 


London and 



Company. * 

incorporated companies did not come within the former 
act, though unincorporated companies did. (a) 

The Master of the Rolls. 

I am of opinion that I cannot give any costs in this 
caae. The Directors of this Company, under a mis- 
taken notion of their power, proceeded to make part 
only of the railway ; and an application being made to 
this Court, they endeayoured to support their supposed 
right. In this I find nothing to complain of. It is 
said that under the law, as existing at the presentation 
of the petition, the Petitioner would have been entitled 
to an order on his petition. The law has, however, 
been repealed, in the form of a declaration that it is 

On the other side, it is said, that the Petitioner 
ought not to have voluntarily come forward, because, 
though the Company were stopped by injunction, still 
that they ought not to be considered as having alto- 
gether ceased to carry on business. If the petition had 
been heard before the last act had passed, there would 
have been a long argument on the point, the law being 
doubtful at the time the petition was presented; but 
then comes the last act, which put an end to all ques- 
tion, (ft) 

Is the Petitioner in any respect answerable for that, 
or has he incurred unnecessary expenses? I think 
not, and I must, therefore, dismiss the petition without 

(a) Ex parte Barber, 5 Rail. (b) U & 12 Fic/. c. 45. *.5. 

Ca. 59*. and 1 Hall ^ Tw. 238. art. 7. 



TAYLOR «. TAYLOR. Km. 16. 22. 


M"^^ this case, Lydia^ the wife of Alexander Taylor y Attachment 
"^ras sued in respect of her separate estate. On the answCToi^ 
^^tVi oi June 1849, it was ordered, that service of the deped,rjp^ 
^^Dixna on her should be good service. She was \^eme^^^ 

ed and appeared, «id she afterwards obtained time ™® ^^ *P" 
, peared and 

suMwer, which expired on the 10th of November, was at liberty 

order had also been obtained for her to answer '^ ""7*^ 

separate from 

from her husband. her husband. 

e Clerk of Becords and Writs having declined 
ing an attachment against her, without the autho- 
of the Court, 

r^ Turner and Mr. FreeKng now moved, ex parte, 

rt a writ of attachment might issue against her. 

<y cited Nayler v. Byland{a), stating that it ap- 

from the Registrar's book, that the order in 

t case had been made ex parte, and Ottway v. 

The Master of the Bolls. I will inquire into it. 

The Masteb of the BOLLS made the order, (c) jvbr. 22. 

(a) 9 Svmofu, 253. (c) Reg. Lib. 1849 B. fo.44. 

{b) 12 ;Sbioff«, 90. 

^OTB. — See jDii^> v. Hole, 2 Vernon, 613. ; PanneU v. Tayler, 
T'wgrn^ 4. R, 96, ; Trovers v. Bulkeleyy 1 Ves. sen. 384. and 1 JDickem, 
1 3e. J Tar/eion v. Dyer, 10 Vesey, 442. ; Hardy v. Sharpe, 3V,^ 
^oi. ^Ex,) 377.; Garet/ v. Whiiimgham, I Sim. ^ S. 163.; Btuheil 
^ ^usheil, 1 Simons ^ S. 164v ; Bell v. Hyde, Pr. in Ch, 328. ; 
^'*^,y«iji V. Mortimer, 6 2Wiw/. 278. 

7" 4 * 




A suit was ri^HE testator devised his real estates to Wright 

a cetttd que ^^^^ Bishop on trusts for sale. 

inut^ to set 

aside a sale by • • . • . 

trustees to ^is bill was filed by the heir^ who was interested 

^^ ^Y^^^* in the estate, alleging that part of it had been sold by 
submitted to the trustees to Weaver ^ their solicitor, at an under value, 
Swchase on *°^ insisting, that under the circumstances stated, the 

repayment. sale ought to be set aside. 

He admitted 

the possession 

of the title The bill prayed a declaration, that notwithstanding 

sisted* their the sale, the property still formed part of the testator's 
production, estate, and that the same might, if necessary, be sold 
Plaintiff con- or conveyed to the Plaintiff, and for a delivery of the 

repay tfc^ title deeds and for payment of the rents, 

that^he*tftle^ ^'^^ Defendant admitted the purchase, but stated 
was bad, and that it had been discovered that the title to the pro- 
Plaintiff perty was bad. He also stated, that he was, and al- 

would have ways had been, ready to regrant the same to the tes- 

the power, as •' , . . , 

he had the tator's heir, on being repaid the purchase money, and 

Smose'Xj '^ what he had expended in substantial repairs, and in- 
title, in case tercst thereon, and to account for the rents received 

he abandoned ., i . 
the suit. by hira. 

Held that the 

bound to pro- "^be Defendant admitted the possession of certain 
duce the ^itlc deeds, and proceeded : — " And this Defendant 

submits to the judgment of this Honourable Court, 
that the Plaintiff ought not to be permitted to have 
copies of, or inspect any of the title deeds &c., unless 
he will, by his Counsel, consent to pay to this Defend- 
ant the purchase money which he paid for the houses 




&C.9 together with the sums of money laid out thereon 

in substantial repairs and lasting improvements, on 

having a reconveyance made to him of the said houses 

and premises of all this Defendant's right and interest 

tliex^cin ; because this Defendant saith^ that the title to 

& CMDnsideiable part thereof has never been properly 

doduced and made out^ and this Defendant believes^ 

the same is not, as it pui*ports to be, a good 

letable title in fee simple, and by exposure of his 

to the said Plaintiff, the Plaintiff and his solicitor 

have tlie power, and there will be found, as this 

sf«ndant believes, an inclination greatly to injure this 

^J^endant, by exposure of his title, in case the Plaintiff 

his solicitor shall think fit to abandon this suit, 

not to repay back to this Defendant the monies 




motion was now made for a production of the 
<ls and documents. 


r. Turner and Mr. Elderton in support of the 
'tion. The Defendant is bound to produce the title 
Whether he will be allowed his outlay will 
Spend upon the circumstances under which he made 
purchase. The Defendant submits to have the 
tion set aside, alleging there is a bad title ; but 
Plaintiff has a rig]^t to elect to keep him to his 
:^:gain, and for that purpose, it is necessary for the 
intiff to know the true state of the title, as ap- 
by the deeds, to enable him to make his election, 
e Defendant is a trustee, and is, therefore, bound to 
uce the muniments of title to the Plaintiff, his 
^^mtui que trust 

Mr. Wright, contrh. The Plaintiff must either affirm 
e sale or repudiate it, and treat the Defendant either 



1849. as purchaser or as a mortgagee for the purchase money 
SumIcross *°^ outlay. The Defendant has a lien on the estate for 
V, the amount he has paid, and is not compellable to pro- 

duce the deeds, until it has been paid, or secured. 
In Postlethtoaite v. Blythe{a) Lord Eldcn said, ''I 
take it to be contrary to the whole course of proceeding 
in this Court, to compel a creditor to part with his 
security till he has received his money. Nothing but 
consent can authorise me to take the estate firom the 
Plaintiff before payment." The Court has no power 
to compel the Plaintiff to go on with his suit. He 
may obtain a discovery of the defects of the title, and 
divulge them to an adverse party (which it is sworn he 
has ^^ the inclination ^ to do), and then abandon his suit. 
The Defendant will then have no security for what he 
has paid, and may be ejected from the estate by means 
of information derived by the Plaintiff. The Defendant 
is willing to produce upon payment of the purchase 
money into Court. 

Mr. Turner in reply. The only question is, whe- 
ther the Defendant is to be in a better position than 
the trustees, from whom he has purchased under such 
-circumstances, that the sale cannot be supported. 

The Master of the Rolls. 

I am of opinion that this motion must be granted. 
The case is : a sale is made by the trustees to their 
own solicitor, at an inadequate price, and for less than 
the estate had previously been valued at. The De- 
fendant says, that the title to the property is bad, and 
that he has laid out money on the property ; and he 
claims to be entitled to a security upon the estate for 


(a) 2Swa.n.2bh. 



tke porohaae money and fbr the money 8o laid out 
He 8aj0| <' imleaB I have security ^or these sums, I will 
not aDow anybody to see whether a good title can be 
nade or not." It is admitted that the purchase cannot 
be maintained ; if so, can he possibly stand in any 
other ntuation than that of the trustees, and would 
tlie trustees be entitled to prevent the owner seeing 
tie deeds ? I think not The order must be made. 

Affirmed by Lord Cottenham, 2 Hafl 4* Twetls, S31. 






^VESSBS. Dames and Evans had been engaged 

'*'"■• in partnership as solicitors. By this bill, the 

FlaintifF sought to charge the estate of Davies with 

monies received for the Plaintiff by Evansy during the 

enstence of the partnership, in an action, in which the 

?\untiff asserted Davies and Evans had been employed 

by him. The defence was, that the transaction was 

eabseqnent to the dissolution, and this the Defendants 

fettdtook place an the 6th of May 1847, and that Evans 

ftloDe, and not the firm, had been so employed by the 



Evidence was entered into, and one Eager had been 
examined on behalf of the Defendants. Publication 
pasted on the 10th of November, and the depositions had 
heut deliyered out. 

Dec. 3. 

Af^er publica- 
tion, the 
Plaintiff dis- 
covered ma- 
terial evi- 
dence : leave 
was given, 
upon motion, 
to examine 
witnesses to 
prove it. 

after publica- 
tion, to prove 
an affidavit in 
another cause 
made by a 
witness ex- 
amined in this, 
and tending 
to discredit 
him, refused. 

On the 22nd of November, the Plaintiff discovered, 
tliat in another suit o( Evans v. Davies, Davies had 
nude an affidavit, in which he swore that he and Evans 









bad been attornies for the PlfdntifF in the action in 
question^ and had stated that the firm were liable. He 
also discovered^ that Eager had made an affidavit in the 
same cause^ in which he stated^ that he was present at 
a meeting between Evans and DavieSy at which it was 
agreed^ that the partnership should be dissolved a^yrom 
the 1st of August 1847. 

The Plaintiff now moved for liberty to exhibit inter- 
rogatories to prove the two affidavits^ or that he ^^ might 
be at liberty to prove the matters aforesaid by the affi« 
davits of" witnesses. 

Mr. Beales in support of the motion. The evidence 
being material^ and only recently discovered, the Plain- 
tiff ought to have an opportunity of adducing it. The 
proper course, in order to obtain the benefit of the 
newly discovered evidence, is to apply by motion, and 
not to file a supplemental bill ; Knight v. Knight (a), 
2 Madd. Pr. (b) The Court is less strict in allowing 
new documents to be proved than in permitting further 
oral testimony. 

Mr. Turner and Mr. Shebbearej contra. As to the 
affidavit of Davies, it ought not to be admitted, for, he 
being dead, the Defendants have no means of explain- 
ing it ; and besides, there is no charge in the bill relating 
to it, or as to any such admission, and hence it cannot 
be received in evidence at the hearing. 

As to Eager, he has already been examined as a wit- 
ness, and this attempt to discredit his testimony should 
have been brought forward by articles to discredit. 


(d) 4 Madd. I. 

(6) P. 560. (3d ed.) 


The motion is not to withdraw publication and give 
both parties liberty to enter into farther evidence, but 
is simply limited to a piece of evidence beneficial to the 

3fr. BealeSf in reply* 

. The Masteb of the Rolls. 

There is a possibility of inconvenience in whichever 

way the matter be disposed of. On the one hand, if I 

refuse this motion, the Plaintiff may be deprived of 

very material evidence; and on the other, if I grant it, 

the Defendants may be exposed to some inconvenience 

by not being able to bring evidence at the hearing to 

xebut the new testimony. 

There are two questions which are entirely different ; 
fint, that part of the motion relating to the witness; 
ud, secondly, that relating to the party whose estate is 
WQghtto be charged. The use sought to be made of 
the aflMavit of the witness Eager y would seem to be to 
discredit his testimony. If that is the intentioD, I do 
not know why the ordinary mode ought not to be 
idopted, and which will afford the witness an oppor- 
tunity of explaining the matter. I am inclined to 
thinly that it is for the purpose of discrediting the 
witnees, and the Pluntiff must adopt the ordinary 
mode of doing so. 

As to the other affidavit, I do not see the objection 
to giving the Plaintiff an opportunity of bringing it 
forward; but I cannot think of allowing it to be proved 
by affidavit The Plaintiff has to prove the signature, 
and to shew that the affidavit was filed in a legal pro- 
oeeding: that can only be properly done by filing in- 










terrogatories, and giying the other party liberty to fil< 
croBs interrogatories on the subject. 

I cannot guard against every possible inconvenience 
but I can do this: — I can enable the Plaintiff to t^ide 
the evidence^ and if necessary at the hearing, an inquir 
may be directed, for the purpose of enabling the Dc 
fendants to defend themselves against the effect of thi 
new evidence. I regret I do not see how it is poflsibl 
to do complete justice in either way. The witoesse 
have been examined, publication has passed, and nei 
evidence has since been discovered, which I must Uk 
to be material ; I think the best thing will be to enaU 
the party to tender it, and if the pleadings will no 
allow it to be used, still it may then give a light to i 
further inquiry. 

The Defendants, on their parts, may either apply t 
exhibit interrogatories to examine witnesses of thei 
own, or at the hearing may obtain an inquiry, «. 
thus delay and expense may possibly be avoided. 

I do not think I can prevent this evidence being 
dered ; and I must give leave to the Plaintiff to ezhLZI 
interrogatories to prove the affidavit otDavies, and gi 
leave to the Defendants to cross-examine any witness 
for the purpose of shewing that he did not swear tl 
affidavit; and when the contents of the affidavit t 
known they may apply. This must be without p: 
judice to the admissibility of the evidence. 

Plaintiff to pay the 



Tfce Duke of BRUNSWICK v. The Duke of CAM- Dec 13. 


■j^XCEPTIONS for insufficiency were taken to the Exceptionsfor 
""^ Defendant's answer to a supplemental bill of dis- ^Jl beov^- 
covery of matters subsequent to the filing of the ruled, if they 
original bilL The Master overruled them> and this was material par- 
ttn. appeal from his decision. ticular, from 


The bill alleged to the effect following :— that Messrs. ^ J^mJ^^^J 

jRiaC, and G., as solicitors for the Defendant, " have " in is in the pre- 

"their possession divers documents &c. relating to the ^h^ exceotion 

iziatterB &c. The interrogatory also was in the same " "* ^^ ?***• 
form, using the word " have.^^ 

The exception, however, averred, that the Defendant 
l^std not answered, whether the solicitors ^^ had " not in 
'(^h^r possession &c., &c. 

Sir. IL Palmer and Mr. Cole admitted the variation ; 
^^t in support of the exception, argued, that as the 
passage in the bill was sufficiently pointed out, a small 
variadcm was imimportant: Woodroffe v. Daniel {a)^ 
Sroum V- Keating (i), in which case it was held, that 
exceptions to an answer for insufficiency would not 
&il on account of their not following literally the 
words of the interrogatory, if the variation bo not im- 

Ur. Turner and Mr. Elmslet/y contra, did not dispute 
the role laid down in the case last cited, qualified as it 
Wttby this: — that the variation must not be important ; 


(c) 10 Shaoiu, 243. (b) 2 Beavan, 581. 

,S CB^«°^^-^ ^rf* 









M to o® .„- tV>»t * „, Vb uo* P*^*^ 


«d •^tvtettof-e*ceY*^'^I...oB\y«> 



»-*tr^^ " 




ftoi» "- . ^a tvie 1^'^'- ^^as 










Bum of money in the said supplemental bill mentioned 1849. 

did come to the hands &c of this Defendant" TheDukeof 

Mr. it Palmer and Mr. Cole. This answer is in- j^^ ^^^ ^ 
sufficient ; it does not state whether the Defendant has Cambbidok. 
applied or disposed of the monies remitted. It is pos« 
sible they might not have come to his hands, and yet 
I&e may have intermeddled with their application and 
dicpositiooj or done so through his agents. 

The Master of the Rolls. 

The first part relates to what has been received by 
'ttke Defendant, and the next part to what he has taken 
ripon himself to apply and dispose thereof. The ques- 
"tion, in substance, is this : — Whether tlie said sums did 
ziot come to the hands of the Defendant ; and whether 
t^e Defendant has not taken upon himself to apply and 
dispose of " the same." What is that but the sums 
'^vliich have come to his hands? The Defendant has 
demed that any part of the said sums of money in the 
^^d supplemental bill mentioned did come to his hands. 
-I think that the answer is sufficient. 

The Plaintiff might possibly require a further and 
*ttore minute discovery, and be may, by possibility, be 
entitled to it ; but he has not so framed his bill and 
ttceptions as to be entitled to any further answer now. 

One of the interrogatories asked, whether the De- An interroga- 
lendaDt had not had ^^ some and what communications," whether the 

4c. with the Kmg of Hanover, and whether or not Defendant had 

^ . • k °°^ had com- 

With munication 

with A. B and 
^* -Z). and other persons. The answer admitted conimunicationB with A, B, but 
*^«wed an^ wi(fi any other persons, omitting the name of C\ D. ^ Held, that being 
^wdaOy interrogated as to C, D., the general answer was insufficient. 

Vol. XII.' U 


1849. with Count Kielmamegge ; and whether or not with 

-T^^T^^ - Mr. Klingemann, or some or one and which of them, 
The Duke of ^ ' 

Brukswick or some other and what person or persons, touchmg or 

The Duke of ^i^<^^^^^ ^^ aforesaid estate,'' &c &c. 

The Defendant stated, he believed he had had some 
verbal communications with Count Kielmatuegge, but 
that he had not had any communications with the 
King of Hanooer, nor (except as aforesaid) with Count 
Kielmansegge (a), nor with any other persons or per- 
son touching &c. 

The Plaintiff insisted, that the answer to the inter- 
rogatory was insufficient, but the Master considered i 

Mr. R. Palmer and Mr. Cole for the Plaintiff 
answer is insufficient, for it omits all mention of 
Klingemanny as to whom the Defendant is spedfi< 
interrogated. The rule is, that a Defendant cann 
answer a specific question by a general deniaL (£) 
Hibbert v. Durand{c)y Mr. Durand was in 
by the bill, whether he had not received certun su 
of money, specified in the bill, in the character 
ship's husband. In his answer he swore, that he had 
received any sums of money whatever, except those 
forth in the schedule to his answer, in which sched 
the sums specified in the bill were not comprised : 
he did not otherwise answer the interrogatory, 
exceptions being taken to the Master's report upon 
sufficiency of the answer. Lord Thurhw declared 

(a) Omitting the name of Mr. (c) Cited in Pnmt r, U\ 
Klingemann. woody 2 Cox, 135.; 

(b) DamelTs Pr. 691. (2nd Durand,! B.C. ^.503. 


to be of opinion^ that a man could not deny^ 1849. 

orally, particular charges^ which tended to falsify rp^l^^if^^ 

general denial^ and therefore held the answer in- Brunswick 

cient; and it appears by a note of the reporter, xu jj'i, e 

it turned out, in point of fact, that Mr. Durand Cambridob. 

recollected the receipt of the particular sums, 
admitted them by his further answer. 

ere the special and particular inquiry requires a 
and particular answer. 

. Turner and Mr. Elmsley^ contra. The question 

"^rhether the interrogatory is fairly and substantially 

fc"\^ered. The Defendant positively denies, that, save 

Count Kielmanseggey he has had any communica- 

vdth any other person whatever. This plainly 

^^^^^Xndes Mr. KKngemann, and any communication with 

would be quite inconsistent with this statement on 


'n Fisher v. Orrell, reported as an anonymous case (a), 
XDefendant was asked whether he had not at some 
in his possession four specified books. He denied 
he had them, or that he ever had any, except those 
tiie schedule. The answer was held sufficient, and 
^^ "^as said by the Court " The proposition of Sir John 
■^Mch in Wharton v. Wharton(b) is too general; dolus 
ft in generaUbus in some cases, but not in all.'' 

^he Masteb of the Rolls. 

Ihe Plaintiff, for the purpose of sifting, has named 
^ particular person, and the Defendant has avoided 
deferring to that name. I am, on that ground, of 
Opinion that the answer is insufficient 


W ^Y.iCol. (Ejcch.) 310. (b) 1 Sim. * Si. 236. 



184^ The Defendant has submitted to answer this b 1]]. 

ThDid^f but I should be sorry to have it supposed^ that xnr 
Brunswick opinion is^ that such a supplemental bill of discoi 

The Duke of ^^S)^^ ^ ^^ CBses be supported. 


By consent an A N injunction had been granted to restrain t 
made per- "^^ Defendant from selling ink with particular labe! 

petual upon until further order, 

Mr. Morris now moved^ with the consent of the 
fendant, to make it perpetual. He stated, that tl 
only difficulty was that, in Day v. Snee(a), 

Eldon had stated, " but never before hearing does t L lis 

Court grant a perpetual injunction.'* 

Mr. Folletty for the Defendant, consented. 

The Master of the Rolls. I see no objectioi 
the order, if it be consented to. 

(fl) 3 r«. 4- B. 170. 




LOMAX V. LOMAX. -^^^- ^3. 

testator. Edmund Lomax, had three dauirhters, ^ testator 

had mortgaged 
fester, Frances, and Laura. He was possessed his estate S 

estates, —viz., Netley, Parkhurst, and Sanhurst, S^^gJ'Jj;^® 
i0e« and BuUcross, besides others, which it is debts, other 
sarytoname. gage, to be 

paid out of a 

s will, made in 1846, he directed his executors, ofhis personal 

I as conveniently might be after his death, to estate ; he 

. . , recited his in- 

; of monies which might then be in the hands tention of 

ankers, so far as the same might extend, and f®''^*'^*^'* P»y 

' ^ ® ' ^ ing off a great 

of agricultural stock and produce, all his part of the 
expenses and just debts, except a mortgage ^n^d^di-^ '' 
reinafter otherwise provided for." rected, that 

•• the balance" 
of ||Lich mort- 

hen devised his estate called Netkt/ to his g«5e should be 

, paid by sale of 

r Hester for life, with divers remainders over. timber on the 

S, estate. He 

jxt devised his estate called Parkhurst to his quest of his" 

r Frances, with divers remainders over. general per- 

sonal estate. 
Held, that the 

len devised his estate Sanhurst, with Shoes and payable first 

s, to his daughter Laura for life, with divers ^"' ^* }^^ 

° general per- 

ers over. sonal estate ; 

secondly, out 

of the dc- 

1 a subsequent part of his will, proceeded as sccnded real 
— " And whereas I am indebted to the trustees thirdty out of 
ly marriage settlement, in the sum of 6000Z., the timber 

J money, 
secured a testator 

gave several 

tics, one of which was (expressed in the alternative) either 10/. a year or 

eiieroent (part of the N, estate), and he charged them all on the X, estate. 

t all the annuities were charged exclusively on that c&tate. 

U 3 


1849. secured to them by mortgage on the said estate at 
Sanhurst, great part of which I am now intending 
and proceeding forthwith to pay off, I will and direct, 
that should there remain any balance due from me 
thereon at the time of my death, my said executors 
and trustees shall raise such balance by sale of ash and 
oak timber on the said &rms of Shoes and BuUerou, 
and such part of the Sanhurst and other lands herein- 
before devised to the said Laura Lamax as are not ^ 
within sight of or within a furlong of the said Sanr ^^ 
hurst mansion." 

The testator made no general or residuary bequest 
his personal estate. 

The testator paid off no part of the mortgage debt 
6000/., which he had himself contracted. 

The personal estate was sufficient, or nearly suffici 
I to pay the mortgage, and timber could be now p 
perly cut to the value of 1010/. ; besides this, there 
descended real-estate, valued at 1186/. 

The question was, which was the primary fiind 
paying off the mortgage of 6000/. 

Mr. Turner and Mr. F. Bayley for the Plaintiff^ * 
child of the testator's daughter Laura. The gen^J^ 
personal estate is the first fund for payment of -fJic 
mortgage. "The general rule of law and equity ^ 
that the personal estate is the first fund for payio^i^^ 
of debts ; and as to proper legacies, it is considered 
as the only fund, both in the ecclesiastical and ^ 
this Court. If, therefore, the personal estate is to Ibe 
exempted from these charges, it must be so express^^> 
or it must appear from a plain necessary implicati^^^ 



•risiiig from the words of the testator ; and in such case 1849. 
of an implioation or plain intention without express 
wordfl, it most appear that the personal estate is given 
AS a q>ecific bequest in some shape : " Lord Inchiquin 
▼• jPrmelL{a) The same role is laid down by Lord 
Midofn in BooUe v. BlundeU. (b) It is to be particularly 
observed^ in this oase^ that there is no gift of the 
general personal estate, and therefore no residuary 
legatee under the will to be'disappointed by paying the 
mortgage oot of the personal estate. In Gmy v. 
Minneiharpe(c), Lord Loughborough says, ** It is very 
olieRr the testator meant, by the sale of the real estate, 
to provide a fund for his debts. It is equally clear he 
supposed there might be a residue, of which he disposes, 
and then, after answering all these payments, be sup- 
poses there will be still a residue, and gives that to 
Another person. Then as to the personal estate, there 
18 no mention of it in the will, except the mere nomina* 
tion of an executor. No case comes up to that — that 
the mere n<Hnination of an executor, though under cir- 
^^umstances that would give to him beneficially the 
Penonal estate, and not make it distributable to the 
^Qxt of kin, shall have the same effect as a distinct 
specific gift of it to an individual" And in M^Cleland 
^* Skew (d), Lord Redesdale, adverting to this point, 
^Wnrcs, *' except Webb v. Jones (e), there is not, I ap- 
Pi'diend, a single case, in which it has been held, that 
Penonal estate was exempt from payment of debts and 
*Uiieral expenses, without express words for the pur- 
Pose, except where personal estate has been given as a 
Specific legacy, for if it is given in terms which do not 


(a) 1 Ambler^ p. 37. and 1 Cox, (c) 3 Vet. p. 105. 

I^- 5. Id) 2 Sch. 4- Lef. 544. 

(6) 10 Veteg, 494. and 1 Mer. (r) 2 Bro. C. C. 60. 4* 1 Cox, 

^»a 245. 



1849. imply that it was intended as a specific legacy, it is not 
held to be exempt from the charges which the law im- 
poses on it." 

Next, the descended estate must supply any defidency 
of the personalty, or if the personal estate be held 
exonerated, the descended estate will become the 
primary fund. In Barnewell v. Lord Cawdor (a), a 
testator exempted his personal estate from the payment 
of mortgages on his real estate, which he devised to 
Lord C, subject to the incumbrances. It was held, 
that the descended estates were liable to dischai^e the 

Mr. Prendergast for the testator's daughter Hester 
and her family, and 

Mr. Roupell and Mr. Giffard for the testator^s 
daughter Frances and her family, did not dispute the 
general rule, but argued, that here the testator had 
forbidden the mortgage debt being paid out of a speci- 
fied portion of bis personal estate, and had provided a 
special fund for payment of that debt by the felling, 
from time to time, of the timber on the Sanhurst estate. 
Here, they insisted, the testator intended the devisees 
of the Sanhurst estate to take it cum onere. They cited 
Webb V. Jones (b), Lutkins v. Leigh (c), Evans v. Cocke* 
ram (d), Lawson v. Hudson, (e) 

Mr. Ellison for the executors. 

Mr. Turner, in reply. If the estates themselves had 
been expressly charged with the mortgage debt, the 


(fl) 3 Mndfl. 453. (r) Cas. temp, Talbot, 53. 

{b) 2 Bro. a a CO. and 1 Cor, (d) 1 Coify. 428. 

245. (e) 1 Bro C. C. 58. 


personal estate would not have been exonerated^ neither 1849. 
^1^ it by a charge of a portion of that estate, namely, 
^e timber thereon. 

^ITu Master of the Bolls. 

-Although there is some difficulty in construing this 
'W'ill, I think it contains materials enough to enable the 
Oourt to come to a proper conclusion upon it. 

^Fhe testator, Mr. Lomax, having three daughters, 
e several provisions for them, which it is not neces- 
for the present purpose to enter into in det^ul. 
first thing he does, is to direct the payment of his 
funeral expenses and just debts out of certain por- 
'tions of his personal estate, ^^ except a mortgage debt 
"tHereinafter otherwise provided for." It is to be col- 
l^eot;«d from this, that the testator had an intention of 
pxx>viding for the payment of that mortgage debt in 
Boixie other way. Let us see what he does in the sub- 
sequent part of the will : he there announces, that he 
intending, and proceeding forthwith, to pay off " a 
part" of the mortgage debt. It is plain that he 
^^Ituaelf intended to pay off something, and he desired 
the ** balance ** to be paid out of the timber. He, how- 
ever, paid nothing, and the question is, did he mean 
the whole to be paid out of this timber or part only ? 
vV'e know nothing at all of how much he meant to pay 
^: that is left in entire uncertainty. 

ut even if he had directed the whole to be paid out 
^f "t^he timber, would that have exonerated the personal 
^^^^te? The testator has expressed no intention of 
^^{H)sing of his personal estate ; if he liad, there would 
^t; l)e much difficulty : this is a matter of importance 
an^ ^ortliy of consideration. Having made no dispo- 




1849. flitioii whatever of the pereonal estate, the oonflequeneey 
in my o{»moii» k, that it ought to be applied in a legal 
course of administration. The statement of an inten- 
tion of paying off part of the mortgage debt, without 
any subsequent act of the testator throwing some 
light upon his real intention, is not of any considerable ^^^ 
weight, because it leaves the matter perfectly unoer- 
tain. In this case, however, there are drcomstanoes 
which give rather more weight to this ezpreasion of^^:^ 
intention; for the testator proceeds to provide for the,ge>^^^ 
payment of any '' balance " which might remain un-^ 
paid of this mortgage, which is a personal debt of th» 
testator, though charged upon some portion of his 

I cannot collect upon this will any trace of an inter^^^^^^^en- 
tion, on the part of the testator, to exonerate the 
sonal estate from the payment of that debt, and, U] 
the whole, therefore, I think, that the mortgage d< 
ought, in the first place, to be paid out of the persor-'i 
estate, so far as it will extend, and if that be foi 
insuffident, then out of the descended estate. If thai 
insufficient, the deficiency must be taken out of 
produce of the timber. 

Another point arose on this will, under the follow ^^^E 
circumstances : — The testator " bequeathed to 
Passansg in consequence of his long service to his 
lOL a year, or five pounds and his tenement at 
lodge, rent free, for his life." He then bequest^ 
four other life annuities of small amounts, and 
proceeded : ^^ And I hereby charge the said estate' 
Neiley^ bequeathed as aforesaid, to my daughter Mi»« 
{Hester), with the payment of the said annuities.'' 


The Master of the Bolls. 

Thoagfa, on this point, there is more doubt, my deci- 

maotk is still in favour of the Plaintiff. Here annuities 

^tre given and are charged upon the Netley estate : I am 

-^otiiich inclined to think that, if this were simply a ge- 

:sieTaI gift of annuities, the mere charge would not have 


(a) 2 Dr. if War. 59. (c) 13 Simont, 336. 

(A) 2 P. Wms. 276. 


The tenement at the lodge referred to was part of 1849. 
^tlie iV!^2^ estate. 

Mr. Thamer and Mr. Bayley, and Mr. RoupeU^ and 
Mr. Giffard contended, that the annuities were exclu- 

aively charged on the Netley estate ; for the option given 

to PasMOHM to take the lodge (or part of the estate) in 

lieu of part of the annuity, shewed, that the estate 

was intended to bear the burthen, and that the other 

annuities, all of which were charged on the estate, 

followed the same rule as that which governed the 

annuity with which they were associated. In Lamphier 

Y.De$pard(d)y a testator, by his will, directed that his 

debts and legacies should be paid by his brother, whom 

he appointed his executor and residuary legatee. He 

then charged two l^;acies given by his will, on the 

timber growing on his estate of Financy and bequeathed 

that timber to the same brother : it was held, that the 

general personal estate of the testator was exonerated 

from the payment of those legacies. They also cited 

^€nnings v. Looks, (b) 

Mr. PrendergcLsty contra^ contended, that these were 
^itaere bequests payable, in the first instance, out of the 
^^ersonal estate, and charged in aid on the Netley estate : 
* V. Roberts, (c) 




exonerated the personal estate (a) ; but the first l^acy 
is so expressed, that it might, in one event, be a devise 
of a portion of the Netley estate itself; and it is so 
connected with the other annuities, that I am of opi- 
nion that they are all charged exclusively upon the 
Netley estate. There is rather more doubt on this than 
on the former question; but I think that this is the 
proper conclusion to come to upon it. 

(a) See Ouseley v. Anttruther^ 10 Beav* 463. 

Dec, 16. 

t/an. 31. 

Under a de- 
cree in a 
special form 
directing the 
fjMaster to take 
trust ac- 
counts, the 
Master al- 
lowed special 
tories., without 
requiring a 
previous state 
of facts. Held 
that there was 
no irreuu- 
hirity, and also 
that there 
had l)een a 
waiver by 
the account- 
ing party ob- 
taining time to 
put in his ex- 


npHIS was a motion made^ on behalf of the Defend- 
-*- ants George Allfreyy Margaret Allfrey^ and Robert 
Allfreyy that tlie Master's certificate, allowing certain 
interrogatories for the examination of the same Defend- 
ants, might be taken off the file and quashed. 

By the decree in the cause (a), it was declared, that 
the Plaintifl^ was not bound by certain settlements of 
accounts, and that such accounts ought to be opened. 
And it was then refeiTcd to the Master to take the ac- 
counts therein mentioned, and to inquire what balances 
of the personal estate, and of the rents and profits of 
the real estate, of the intestate, in the pleadings men- 
tioned, were in the hands of Edward AUfrey at the end 
of each year after the intestate's death. Liberty was 
given to state special circumstances. 


(a) Reported 10 Beav. 353. and 1 Mac. 4* G. 87. and 1 Hall^ 



Oa an attendance before the Master on the 26th of 1849. 
trek 1849^ the decree was considered^ and the Master 
directed, that interrogatories should be brought in be- 
toiPG him, on behalf of the Plaintiff, for the examination Allfrbt. 
of -the Defendants, who now moved . The draft of the 
in-terrogatories was left at the Master^s office on the 
lOth ofMay, and a copy sent to the solicitor of the De« 
fendonts, and on the 28th of the same month, there was 
^ui attendance to settle the interrogatories. 

^e fourth interrogatory contained in the draft in- 

q^ived, whether any sums of money were due from 

-Edward AUfrey, the administrator of the intestate 

f^^^OTffe AUfrey, to the estate of George, and if yea, to 

^^ forth a particular account of thenu To that inter- 

^ygatory an objection was taken by the solicitors of the 

^^ecutors of Edward. Whereupon, a book which had 

^^^^11 proved in the cause was produced, containing an 

*^^^^Unt of Edward Allfrey, as administrator of the 

^^^^te of the intestate George Allfrey, and the account 

^^lOtnenoed, on the credit side, by debiting Edward 

f^ifi^ey and crediting the estate of the intestate George 

^ the following itenu 

** 1802, Februartf. By balance agreed 1353il 10^. Scf." 

^I%e Master thereupon overruled the objection, al- 

^'^ed all the interrogatories, and appointed a time for 

^ examination of the Defendants to be brought in. 

"^^ certificate, which was now complained of, was filed 

^^ the4thofJi««^. 

-^tirther time for putting in the examination was ap« 
1^^^ for, and given on the 22nd of June, and again on 
^^^ 30th of June. 




1849. The examination wss taken in on the 30th ofJmfy. 


V. On an attendance before the Master, on the 17th 

of November, to inquire into the sufficiencj of the ex- 
amination, it was, for the first time, objected, that be- 
fore proceeding on the examination, a state of facts 
should be taken in, as without it the Master would 
not be able to understand it 

On a subsequent occasion, an objection was taken, 
that the interrogatories ought not to have been allowed, 
without a previous state of facts having been brought in 
on behalf of the Plaintiff. The Master adjourned the 
matter, in order to give the Defendants an opportunity 
of making any application to the Court, and, thereupon, 
notice of the present motion was given. 

Mr. Thirner and Mr. fV. H. Clarke^ in support of the 
motion. The allowance of the interrogatories, without a 
preceding state of facts, is irregular. A state of facts 
is necessary as a ground work for the interrogatories ; 
for if any question as to their propriety should after- 
wards arise, the state of circumstances under whidi 
they were considered proper will not appear, for there 
will be no constat of the points nused. 

If it be said, that the objection is waived, the answer 
is, that this proceeding is such that it cannot be waived, 
for upon appeal, the Court would be without the proper 
information on which to adjudicate. 

The 4th inteiTOgatory is of a special nature not war- 
ranted by the decree, and could only be allowed by 
spedal direction of the Court ; Moore v. Longford (a)^ 

Hophinson v. Bagster. (b) 


(a) 6 &numi, 323. {b) XY.^CoL (C. C.) 13. 


JBSi. WaJpole and Mr. Raseh^ eantra. Ist. The pro- 1849. 
t^^ling is perfectly regular; and, 2dlj. If not, it has 
^n waived by the subsequent steps taken by the De- 

Sy the 50th and 5l8t Orders of April 1828, the 
ter, upon the bringing in of every decree is to pro- 
to regulate <^ as to what particular interrogatories 
£oxr the ezaminaticm of parties appear to be necessary ."(a) 
Tt. is, therefore, a matter of discretion to be exercised 
in. ^the first instance by the Master on bringing in the 
deovee, and in this case it has been properly exerdsed* 

Cases of account require no previous state of facts. 

It is necessary to bring in a state of facts previous to ex- 

^ocuning witnesses, for the reasons stated in 2 Darnell (b); 

bat the reasoning does not apply to the examination of 

t party which proceeds on the record and decree. The 

pi'dctioe ia tbua stated : ** If the account is simple, and 

^^ likely to be much disputed, he (the Master) directs 

^6 same to be prepared in the form of a debtor and 

^^'^^tor accoimt. If it appears probable that it will be 

o^ceaaary to examine the party at all, the Master usually 

™^t8 interrogatories to be left for his examination in 

^^ first instance." (c) 

^ ^t would be impossible for the Plaintiff to bring in 
^ Btate of &ct8 and charge until he has obtained the 

Pendant's examination on which to found it. It 
^^tild throw on the Plaintiff the anus of making out the 
*^^^^Unt The cases of milan v. mUan (d) and Sidden 
^' ^arster (e), in which there was a previous state of 


(«) Ord.Can.%1, ^. (d) 19 Fes. 590. 

C^) P. 1146. (8d ed.) (c) \ Sim ^ St.3S5. 

Cc) 2 Smkh'i Pr. 125. (3d ed.) 



facts^ were relied on in the Master's office; but/ltliofle 
cases were decided before the New Orders^ and did not 
raise the point. 

Secondly. The point has been waived, for an ob- 
jection to form must be taken in the first instance, 
otherwise it will be considered as abandoned: ^he 
Archbishop of York v. StapUton (a\ Morgan v. Lewis ip). 
In re Mackrill{c)y Willan v. WiOan. {d) 

Thirdlj.^^K^ the interrogatories be wrong in £ 
the objection should be taken by exception and no 
motion : Cfiennell v. Martin, {e) 


Mr. Turner in reply. 

If a party requires special interrogatories, he nr^w** 
make out a special case for them. Common int eir ^> ffl' 
tones may be brought in without a state of facts ; ™ 
the question here arises upon special interrogatop^ 
The delay in raising the objection raises a mere q^ 
tion of costs. 

The Master of the Rolls. I will communS--^^^*^ 
with the Master. 


Jm, 31* 

The Master of the Bolls. 

The only interrogatory objected to is the 4th ; ^^"' 
considering the nature of the suit, and of the d^5^^^ 
and the production of the book, which was part o 
evidence in the cause, and contained the entiy 


(a) 2 Atk. 136. 

(b) 1 NewUauPi Pr. 533. (3d 

(c) 11 Brao.42. 

(d) 19 Vei. 590., 2 
1145. (2d ed.) 
(0 4 Simant, $40. 

. Ft. 



3 been mentioned, I think the Master was not wrong 1850. 
allowing the interrogatory without a state of facts ^^^^ 
found them upon ; and if there had been any irregu- v, 

ity in this, I think it would have been waived by the 
>nus8ion and repeated allowance of time, which the 
fendants obtained. 

[t was said, that without a state of facts the Master 
Jd not understand the case, and it was argued, that 
interrogatory complained of goes beyond the ordinary 
irse in administration suits, and I thiuk it does ; but 
s is not an ordinary administration suit, and I think 
it the decree and the entry in the book produced, 
rranted the special interrogatory without a special 
^te of facts. 

If the Master should find a difficulty for want of it, 
presume that he will direct a state of facts to be 
d before him; but seeing no reason to think, that 
' interrogatories were irregularly allowed, and being 
opinion that the irregularity, if any there was, was 
i\red, I dismiss this motion with costs. 

Vol. XII. 



Dec. 19. 


way Company. 

Some pro- TN 1848, R.B.Hardy^ being entitled to some pro. 

mortga^ttl to perty in the line of the above railway, for the re- 

the Plaintiffs, gidue of a term of ninety-six years, by an indenture 

bound to re- dated the 10th of March 1848, mortgaged it to the 

ceive their Plaintiffs Ranken and Inghs, to secure 700/. with in- 
money until a . ._, ■• ^ • •■ 

future day. terest at five per cent, ihe mortgage deed contamed a 
A Railway proviso, that if Hardy duly paid the interest and the 
with know- ground rent, and performed the covenants in the lease, the 
wilSjth'emort- Plaintifis " should not, nor would, require payment of 
gagor alone, the principal money until the 5th of March 1851,** nor 
ing/paid mto' institute any proceedings to enforce the payment, or 
Court, to the obtain possession, or foreclose; and if the 7001 and in- 

mortgagor, tcrest should not be paid on the 10th of March 1849, 
the amount of j^ gi^^^jj ^^^ ^^ j^^f^l foj. jj^^ji u^ obKge or compd 

compensation, _ ^ "^ . . 

but made no the Plaintiffs," &c. " to receive and take the principal 

fheSjeS- ^^^ ^^ ^^^^' *^- ^®f^r® ^^^ 1^^^ ^^ ^^^^* 1^51.'* 
sation to the 

mortgagees xhe Defendants were enabled by their act (a) to make 

under the • ^ j \ / 

8 & 9 Vict. a railway from the East and West India Docks to join 

The Company ^^^ London and Birmingham Kailway, and " The Lands' 
then took Clauses Consolidation Act, 1845," was incorporated 

possession, . ^ ^, • i ^ 

and com- ^^*^ ^^^ special act. 

menced pull- 
ing down the Qn the 16th of February 1849, the Company gave 
building. The . ^rTi i • t it 

Court re- notice to Hardy that they required to purchase the 

strained the property 

Y'^^m (a) 9 & 10 VicL c, cccxcvi. 

from pro- ^ ^ 

ceeding, until the value of the mortgagees* interests had been ascertained and paid ~ 

or secured. 




fstoperty and were willing to treat for the purchase, and 
they demanded the particulars of his estate and ckums» 

On the 9th o{ March 1849, Hardy sent in his daim, '^^Xi!? 
^ valae 1365i!., compensation 170/. ; and he thereby also Doclu &c. 
Btated, that the property was in mortgage to the Plain- 


The Defendants proceeded to treat with Hardy alone, 
uid sent an agreement for his approval, which was not 

On the 3d of July 1849, Hardy^s solicitor wrote to 
t« Company as follows : — " Mr. Hardy, as you are 
vare, is not in a position to sell the property free 
om incumbrances ; and if your clients wish the nego- 
^tion to be continued and to purchase the property, 
must, at once, make arrangements with the mort- 
who, according to the terms of the mortgage 
3 cannot be compelled to take their money before 
^ expiration of three years from the date of the mort- 
Be deed. The mortgagees are also clients of mine, and 
il, I dare say, be ready to treat with the Company as 
t^lieir interest, if proper terms are offered, but much 
^ of course depend upon the nature of the offer. I 
**st however give your Company (through you as their 
Bcsitor) notice, that if any attempt be made to take 
^^iseBsion of the property, my clients, as well mort- 
^Sor as mortgagees, will forthwith adopt such measures 
tliey may be advised against the Company." 

^0 answer was given to this by the Company, but on 
^ 17th of November 1849, they pwd 1080/. into Court 
tlie credit of Hardy, " the same being," as they stated, 
^He value of Hardy " in the premises, and for com- 
*^l«ation as determined by a surveyor appointed by a 

X 2 magistrate. 


1849. magistrate. They also sent to jETordfy a bond of the 

pany with two sureties, conditioned for the payment to 
Hardy ^ or the deposit in the Bank, for the benefit of 
'w ^^m P^"^^ interested in the land, of all such purchase o 
Bocks &c compensation money as should, in manner provided i 
cSSS. "T^^® ^*^^' Clauses ConsoUdation Act, 1845,'' 

determined to be payable by the Company in respect o: 
the estate. 

On the 3d of December 1849, the Defendants 
possession of the property, and commenced pulling do 
the buildings thereon. 

The interest of the mortgage had been 

The Plaintiffs thereupon filed this bill against f^t:.^3ie 
Company, and now moved for an injunction, to restrra id 
the Defendants '^ keeping possession " of the 
and from pulling down the messuages thereon, and froi 
prosecuting the works of the railway upon the hu( 
until the value of the Plaintiffs' rights and intei 
therein had been ascertained, and payment thereof made 
or secured according to the act. 

Mr. Turner and Mr. Glasse, in support of the motion* 
The Company, with knowledge of the mortgage, have 
thought proper to deal with the mortgagor alone, and 
have not made such a proper provision for the rights and 
interests of the mortgagees, as to entitle them to take 
possession of the property and destroy or deteriorate 
the Plaintiffs' security. The mortgage is not payable 
until the 10th oi March 1851, and by the 114th section 
of the 8 & 9 Vict c. 18. if the mortgagee is required to 
accept payment of his mortgage money at a time earliei 
than the time by the mortgage deed limited, he i 



entitled to the costs and expenses incidental to the re- 1849. 

investment of the sum so paid off, and also to " compen- ^T^^^'^ 

sation, m respect of the loss to be sustained by him by «. 

'eaaon of his mortgage money being so prematurely WBOT^IwDir^ 

paid off,** and " until payment or tender of such com- Dodcs &c. 

P^nsation as aforesaid, the promoters of the undertaking CompInT 
^aU not be entitled, as against such mortgagee, to pos- 
^^asion of the mortgaged lands under the provision 
^*^creinbefore contained." 

^ere there has been no requirement, no payment, 

er, or security of the costs and compensation, and 

^ Defendants are not, therefore, entitled to possession. 

^e investment has been improperly made in the 
e of the mortgagor alone, and a bond given to him 
not to the mortgagees. 


^Ir. JValpole and Mr. Hetherington for the Company. 

^ Company need only deal >vith the party in posses- 

%, and having failed to come to an agreement with 

, they were entitled to take possession under the 

^^^^•^upulsory clauses. The 85th clause enables them 

take possession on depositing the value of the pro- 

y and delivering a proper bond, which they have 

^^^Xie. The mortgagees must be paid out of the money 

^^J^offlted in Court, which is a sufficient protection and 

^^ smply sufficient to pay every thing they can claim. 

^^^der the mortgage deed, the mortgagees arc not en- 

y*^l«d to take possession, and therefore have no right to 

^'t^rfere with the possession as between the mortgagor 

the Company, and the Company have the right to 

cem under the 108th section. 

"S^he 114th section, which is so much relied on, does 
^^t; over-rule the previous provisions in the statute. 

XZ The 




1849. The Court, seeing that there is a suffioient sum de- 

posited to secure all the claims of the Plaintiffis tnd 
that no injury can arise, ought not to int^ere hj inr 
'wbot^In^ junction so as to stop the completion of the lipe of xait 

Docks &G. way: WiOey v. The Soutk-Ecutern BaUway Cmm^ 
Railway / v 

Company. P^^VKV^ 

Mr. Turner in reply. 

Although the Plaintiffs are not entitled to poeseamon, 
they have a right to prevent any waste beii^ ooBmitted JEmI 

on the property, to the detriment of thttr seourity. ^-^^ 

When the house has been pulled down, the value of 

property will be comparatively destroyed. The Com 

pany have taken the Plaintiffs' real security, withour- _ 
^ving them either the bond or the benefit of the 
and the deposit neither includes the damage to the 
gagees nor the costs of the re-investment. 

The Master of the Bolls. 

It would be very much to the advantage of hoih 
parties if they would come to an arrangement as to this 
matter ; but if they require my opinion, I am bound to 
give it. 

This mortgage contains this provision: that upon 
the interest &c. being duly paid, the Plaintifb shall 
not require payment of the principal until the lOA 
of March 1851, nor take any proceedings to obtain 
possession of the premises. 

The interest having hitherto been duly paidj it is 
dear that the mortgagees have no right to take any 


(a) I Mac. 4- Gw, 58., and 1 Hail 4r TwtUi, 56. 



prooecdings to obtain poseession. The Railway Com- 1 849; 
Pftxiy> in the course of their proceedings, knowing that 
^re was a mortgage, have thought fit, under the powers 
given to them by the act of parliament, to treat with ^^^^^"^ 
^e mortgagor and the party in possession, without any • Docks &c. 
'^'^^'^ to the mortgagees. I am not prepared to say, 
^*^*t they had not a right to do so ; but exercising that 
^'^'Sbt, they must be subject to all the consequences 
^Ikich may arise from their neglecting to do something 
which may be requisite to entitle them to obtain 
or to deal with this property as their own. 

Company. "^ 

^Hiey endeavoured to come to an agreement with the 

^*^Ortgagor, which I conceive they had a perfect right to 

^*^^i but they neglected their own interest, by doing so, 

taking some care that the mortgagees' rights 
provided for. They had a perfect right to deal 
the mortgagor, and they might have required the 
ror to settle matters between him and the mort- 
But it appears, that, knowing there was a 
oxtgage, they neglected altogether to have any com- 
nication with the mortgagees. In consequence of 
», the mortgagor, it seems, declined to come to an 
^^ST'c^eement with the Company, or delayed it so long, 
it they thought fit to proceed independently of both, 
as they say, under the 8 Vict. c. 18. s, 85. ; and 
^^ ^ i ng ascertained, in the manner mentioned in the 
^fl&clavits, the value of the land, they paid into Court, 
'^o^ to the account of the mortgagees, but to the ac- 
^^nnt of the mortgagor, a sum of money which they 
^^^><xiceived they had, by such proceedings, ascertained 
"to be the value of the land. The mortgagees, finding 
^eir interest altogether neglected, and that the Com« 
V^^J had actually taken possession, have filed this bill ; 
•^d what they now desire is, that the Railway Company, 
^"O are in possession, should be prevented from dealing 

X 4 with 






The East and 

West Ixdia 

Docks &c. 



€€ ^ 

With the hind in any such manner as to lessen thd 

True it is^ that the Plaintiffs have no right to tak 
possession now^ nor so long as the interest is paid ; bi 
they have a right to the security of the land, and 1 
have the value of the land protected against the acts < 
other persons with whom they have had no oommunici 
tion respecting their interest. 

What does the act of parliament (a) say on thif 
I pass over the cases of common mortgages, and I tal 
only this particular case, which is this : — where there 
in the mortgage deed a time limited for the payment 
the principal money thereby secured. That being t, 
case, if a " mortgagee shall have been required to accc 
payment of his mortgage money &c, at a time earl 
than the time so limited " (which he has not been), 
promoters of the undertaking shall pay to such 
gagee, in addition to the sum which shall have beem. 
paid off, all such costs and expenses as shall be incur: 
by such mortgagee in respect of or which shall be j 
cidental to the reinvestment of the sum so paid a 
such costs in case of difference to be taxed and pa; 
ment thereof enforced in the manner herein provide 
with respect to the costs of conveyances ; and if the rat 
of interest secured by such mortgage be higher, than a 
the time of the same being so paid off can reasonably b 
expected to be obtained on reinvesting the same, TGgm 
being had to the then current rate of interest, sud 
mortgagee shall be entitled to receive from the pre 
meters of the undertaking, in addition to the principi 
and interest hereinbefore provided for, compensation i 
i*espect of the loss to be sustained by him by reason c 
his mortgage money being so prematurely paid off, tb 


(a) Snct. c. 18. i.\U. 



^^■^ount of 8uch compensation to be ascertained, in case 
of difference, as in other cases of disputed compensation." 

X do not find that anything of the sort has been done 
attempted* No treaty has been entered into, no 
to pay what shall be expended in reinvestment, no 
^l^^empt to ascertain what is due for compensation, in 
consequence of the difference between the interest to be 
i^'^eceiyed when the reinvestment is made, and the in- 
which is reserved by the mortgage deed. 




The East and 
VfEST India 

Docks &C. 


GThen comes the final clause in this section, which 
80.^8: — " And until payment or tender of such com- 
pensation as aforesaid, the promoters of the undertaking 
shall not be entitled, as against such mortgagee, to pos- 
session of the mortgaged lands under the provision here- 
inbefore contained." 

I haye never read any clause in these acts of parlia-^ 

ment less ambiguous. The act forbidding them to do 

this, what has been done ? The Company has paid into 

CoTirt, in the name of the mortgagor, a sum of money 

®<liaal, as they say, to the value of the land, providing 

'^otliing for the expense of reinvestment, nothing for 

^^y other costs, and nothing for compensation in respect 

^^ the difference of interest. I am clearly of opinion 

^h^t this possession was wrongfully taken, and I think 

"'• ^liall not be acting contrary to what this Court has 

^^^xe in previous cases, if I grant an injunction to pre- 

^^i:it the Company from dealing with the land, as they 

*^ti^nd to do, for their own purposes. 

X^ remember a case before Lord Coitenham, in which 
^ l^ill was filed to prevent a bridge being made over a 
I^^^c^r man's cottage. It was no sooner known that an 
'^{^l^Ucation was to be made to the Court, than the 
^rapany built the bridge in the course of the night, 
when the motion was made tlie next morning, they 






The East and 

WsfT India 

Dodtf Ac. 



said, '^ You are too late, the bridge is built, and 
Court cannot interfere ; " but his Lordship replie^^^i, 
'^ though I cannot prevent you from building 
bridge, as it is built, still I can grant an injunction 
prevent you using it;" he did grant the injunction, 
the poor man had his compensation in a week* 
Court is not prevented by the fact of possession 
moulding its orders in such a manner that justice 
be done. 


As I am called on to decide this most foolish c<m1 
I cannot refuse to compel obedience to an act of 
liament, which seems perfectly plain. There are 
of doing so ; and to talk of a fund being in CoL...j3rt, 
which is the exact amount of the land, without az^riy- 
thing to answer the costs of reinvestment and the ot^^er 
costs, and which is not even standing to the credit of ^lie 
persons entitled to it, is a mere mockery. 

I am surprised at the Defendants by their aflSd&^v 
telling the Court, that the course they have adopted 
in accordance with the usage of railway companies;, 
that the like has been done by such companies on o 
occasions. To introduce such statements into an 
davit for the purpose of influencing the judgment of ^ 
Court in a matter of this kind is a gratuitous absurdL 
for an injustice is not to be tolerated in any case, m 
because such things have been done by other persons 
former occasions. 



The Plaintiffs are entitled to an injunction to 
strain the Company from prosecuting the works 
the railway upon the premises mortgaged, until 
value of the Plaintiffs' interests have been ascertain 
and the amount pud or secured in manner reqtti*^^ 
by the acts of parliament 




In re HAIGH. Dec. 80. 

WILSON (an administrator) employed Mr. f^^^y^ 
igh as his solidtor^ to pass the administration duty made by 

Mr. Hcdgh passed them, and paid four sums, i^jg client, 
K to Hi 8*. 6rf., at the Stamp Office for ought, foJtax- 

L. • • xL i. -. u • J ation, tobe) 

tjf m procuring the stamp to be mipressed included in his 
oper documents. ^*«j' »"^?""^ 

'^ and not m his 

bill of costs, 

in, including the legacy-duty, amounted to ^^Jh*'^'^.'^ 

Id*. It was referred for taxation, when the ment is not to 

^faster, on a reconsideration, struck out the computation, 

)r legacy-duty, as a professional disbursement, '" considering 

'cd it as a cash payment, thus reducing the sixth is taxed 

1 14«. 5(/., which he taxed at 82. 19^. 9dL The ^^' 

thus taxed off, being 32. 14«. 8£2., was more 

xth of the 122. 14«. 5(2., but less than a sixth 

iginal bill of 242. 2«. llcf. The Master having 

the client his costs of taxation, the solicitor 

1 this petition, insisting that the Master ought 

kve struck the item for legacy-duty out of the 

1 that therefore the solicitor was entitled to 

; of the taxation. 

>f the affidavits stated, that it was customary 
iters to charge legacy-duty in their bills of 
1 not in the cash accounts, unless specific remit- 
rere made in respect of such payments. An 
on the otiier side stated, that it was usual for 
n the country to remit the legacy-duty, and 
b payments were only made by solicitors when 
requested, (they not being payments they are 



1849. expected to make in the ordinary course of buoneee, 

^^^ and that in both instances, they were entered in the 
In re Haigh. , . •'. 

cash accounts and not in the bills of costs, '^ unless the 
duty amounted to no more than 20«. or thereabouta." 

Mr. Turner and Mr. Karslake in support of the peti 
tion. The payment for legacy duty was improperl 
struck out from the bill, for it was strictly a profi 
sional disbursement. In re Bedson (a), it was heldj 
both legacy and probate duty formed proper items i 
a solicitor's account, on the taxation of his bill of 

[77t€ Master of the Eolls. That was not 
point decided, for the case proceeded on the 
that those sums would have been properly 
into the bill, but for the security given.] 

In Franklin v. Featherstonhaugh (b) it was held, tS:^ at 
a payment to a proctor was properly inserted in a Ik^^j] 
of costs. Stamp duties on conveyances or mortga^^^-w 
are properly introduced into a solicitor's bill of fees a-^nd 
disbursements (c), because the solicitor is re8ponai.%=)]e 
for the proper stamp being affixed, and can recover :3io 
more than is properly paid by him. The same rrnr^^" 
is applicable to affixing the stamp on a legacy reo^^pt 
or on letters of administration. 

They also cited Harrison v. Warded), Hindle v. 
Shackleton (e\ Hays v. Trotter. ((/) 

Mr. Priory contra^ referred to Re Remnant (Ji), fc^^ut 
was stopped by the Court. 

(a) 9 Beat, 5. (d) 4 Dowi. 39. 

(b) I Ad. 4- E. 478. and 3 (e) 1 TaunL 536. 
A>p. * ^fan. 779. (g) 5 Bam. 4* Ad. 1 106. ^"^ 

(c) Sec In re Remnant ^ 1 1 3 AVv. ^ Man. 174. 
Beac, p. 6U. (A) H Bear. COS. 


TKl^ Master of the Rolls. 1 849. 

It ^^rould be satisfactory if this and the former case In re Haigh. 

-were ^aken before a higher authority, so as to lead to a 
final demon, and to leave no further question on the 

It ia said that this is a hard case upon the solicitor, 
bat it is to be recollected, that it has not been decided 
that -the disbursements are not to be paid by the client ; 
on the contrary, it is clear that the client is bound to re- 
V^7 that which the solicitor has disbursed. The only 
question is one which never arises, except in a case where 
™ solicitor having charged more than one-sixth, in ex- 
cess, for real professional services, the question arises, 
whether he is to bear the costs of the taxation. The 
struggle then is to include this sort of disbursement in 
™ bill of costs, in order to increase its amount, and 
thus diminish the proportion struck off in taxation. 
^^ amount taxed off may be more than a sixth of the 
^*^tly professional charges, but a great deal less if 
you include in the bill these cash payments. No doubt 
'^^^ the bill and the disbursements are to be paid, but 
^ costs of taxation, under the act of parliament, de- 
P^d on whether this item is to be included in the bill 
^' m the cash account. 

^ far as any rule can be collected from the cases, 
(adixutting that they are not consistent in themselves, 
^^ m the reasons assigned for the conclusion), and from 
^® certificate of the Taxing Masters, as to the usage 
^d custom of the profession, I think I ought to con- 
Bider, that these payments for legacy-duty are mere dis- 
"'^^^ements, made for the client by the solicitor, in the 
™^*^icter of agent and not of solicitor, and I believe it 
^^1 be found to be the more usual practice of solicitors 

^uter them in their cash book and not in their bill 



1849. book. I must, therefore, decide that the oertSnte 
JJ^*^ the Taxing Master is right. 


In Re Remnant I ultimately came to a comcl^ 
quite opposed to my first impression, after taking 
to leave no case unexamined. 





After the death 
of their father, 
in&nts peti- 
tioned tor an 
allowance for 
out of their 
Held that such 
was to be de- 
termined ir- 
respective of 
the means of 
their mother 
to support 
them out of 
her own for- 


TN 1843, Sir Robert Andrews Douglas died, lea.^viiig 
his widow Dame Martha Elizabeth Douglas and 
three infant children him surviving. The children "vrere 
still infants, and the widow unmarried, and both ^e 
widow and children had fortunes of their own. 

A petition was presented in these suits, for a leS^^ 
ence to the Master to approve of a proper allowin^^^^ 
for the maintenance and education of the infants duric^^"^ 
their minority. The petition also prayed a referenc^^^^^^^ 
to ascertain ^' whether Dame Martha Elizabeth Dougl 
(their mother) was of sufficient ability to maintain 
educate the Petitioners, regard being had to their 
in life, and their present fortunes and expectations.' 
This part only was objected to by the widow. 

Mr. Turner and Mr. Busk in support of the petitio: 
The mother is under a natural obligation to suppo: 
her children, and their fortune is not to be broken 
upon whilst the mother is of sufficient ability to mun^ 
tain them. The same rule is applicable as well to ^ 
""♦^ftr OS to a father. 



ifr* RaupeU^ contra, for the mother. There is no 
bority for such a reference. The rule applies only 
he father of an infant^ and not to the mother. 

The Ma8T£B of the Rolls. 

. never knew of such a reference. The rule is^ that 
rever large a child's fortune may be^ whilst the 
ler is of ability to maintain the child, he must per- 
Dn his duty^ and no part of the child's fortune is to 
Applied for that purpose. 

[ have never heard that the rule applied to the 
ther, and I will not make an order so contrary to all 
i» without an absolute authority for it. 





lie order was made, omitting the reference ob- 

>TE — See Chambert on Infants, pages 114 and 313, where 
oUowing authorities are referred to : — Smee v. Martin, Buhb, 
; Anon, 2 Venir. 363., Kelton't Ch.Ca, 250. ; BuUer v. Ihmeomh, 
Wmt. 454. ; Fawkner v. WaUs, 1 Atk. 405. ; Uaiey v J^mifitt- 
f Madd. 275. ; Cavendish v. Mercer, 5 Ves, 195. «. ; Be Walker, 
i ^ Goo. (temp, Sugd.) 299. ; S, C, nomine Hodgent v. Hodgem, 
^ Fh. 323. ; Bil&ngsfy y. Criichet, 1 B. C. C, 26a ; Swmnock 
iMp, Free, 78. ; Boach ▼. Garvan, 1 Vet. sen. 157. ; Ayniwortk ?• 
^ieU, 13 Fes. 321. ; Ftdrman v. Green, 10 Ves. 45. 




The *• instru- ri^HE question in this case arose on the construct 

inent re- ■ ^ 

ferred to in of the Apportionment Act, 4 & 5 W^. 4. c. 22. 

the Appor- 
tionment ACty 

is not the in- The testator, Thomas Andrew Knight, by his 
creating the dated in 1836, devised all his freehold, copyhold, 

periodical pay. leasehold estates unto Sir William Boughton and 

ments, but - , , , 

that creating heirs, upon trust to keep his mansion house at Daur^aton 

a life interest Castle^ &c. in repair, and pay the taxes, and permit bk 
A testator wife Frances Knight to reside therein during her life, 

havine bvhis ^^^ *^^®^ deducting out of the rents all payments madle 
will, given real by him for taxes, repairs, &c, to pay five eighths of t J^® 
trustees in ^®* rents to his wife Frances Knight during her lif-^ 
trust, after and the remaining three eighths to three other pewo 
mansion &c. ^^^ ^^^' ^^d when his wife and such three perao 
*? W ^Tp severally departed this life, he directed their respecti 
net rents to shares of such net rents to be retained by Sir 
uJ^The ^"""^ Boughton and wife during theur lives, &c- &c. 
widow died in 
reml'^re re- ^^® testator died on the 11th of May 1838, harai^ 

ceivable on granted leases of part of the property. 

the next rent 

day, under 

leases created Frances Knight died the 24th of July 1847, and 

tor anterior to Petitioners were her personal representatives, 
the Appor- 
tionment Act. . ^ . n 1 111 .1 

Held, that the A Keceiver of the estates had been appomted. 

rents were 

The leases on which the argument turned, w 

stated to have been granted before the passing of 

4 & 5 W. 4. c. 22. {June 1834). None of them det 

mined by the death of Mrs. Kniglit. 




This petition prayed^ that the sum of 4329/. received 1849. 
r rents between Lady-day 1847 and Lady-day 1848, ^"v^TT^ 
ight be apportioned between the representatives of 
Frances Knight and the other parties. 


Mr. Turner and Mr. Humphrys in support of the 
ttltion, and 

Mr. John Baily in the same interest 

The representatives of the widow are entitled to a 
"oportion of the rents. The objections which will be 
daed are, first, that the instruments under which the 
snts are payable were not executed after the passing 
^the act; and, secondly, that there arc no fixed pay- 
^ts to the widow, but that the whole rents being re- 
'^ed by the trustee, they are first to be applied in a 
"en way, and that a portion only of the residue is pay- 
d to her. The answer to these objections is, first, that 

instnunent referred to by the statute is the instru- 
ct giving the right to receive, and not that creating 

obligation to pay : — and in this case the instru- 
ct is the will and not the lease. 

CTiis is evident from the act comprising " moduses," 
Lc^ must have been created from time immemorial, 
L could not therefore have been made payable by in- 
^ment executed after the passing of the act. In re 
^^khy (a) does not apply, for there the only question 
^ as to an apportionment of rents under a demise from 
Jo: to year, as between the legal and personal repre- 
^tives of a tenant in fee, and the principle of the 
•ision was, that, even assuming the lease to be the 
trument governing the decision (which it was not) 


Vol. XII. 

(a) 4 Myl. * Cr. 4S4. 



1849. still it could not authorise an apportionment, for it 




not in writing. 

Secondly, the rents were received periodically by- 
trustee, and when they became due he had a riigh.' 
receive, and an immediate obligation to pay to 
widow her proper proportion. The circumstance 
the tenant not paying punctually, could not alter ' 
rights as between the parties under the will. 

Mr. Walpole and Mr. Folktt, contra. 

The Petitioners must bring themselves strid 
within the act. If this sum be considered rent, it 
not apportionable, because the rents were not reserv 
by an instrument executed after the passing of the ac 
and the case of In re Marhby (a) shews that the I 
is the instrument contemplated by the act. If t 
fund in question be treated as resulting from fixed pajr^ 
ments, it does not come within the act, because 
will, imder wliich the Petitioners claim, does not fix an;, 
periodical payment. 

Mr. Turnery in reply. 

Hie Master of the Rolls. 

Under the will of the testator, his widow was eiv 
titled for life to five-eighths of the rents of his leaJ 
estate. The devise was in these terms : — ''I ^ve, de- 
vise," &c &c It is admitted that she has received and 
is entitled to five -eighths of all the net rents which 
accrued down to Lady -day 1847. She died on the 24th 
of July 1847, and Sir William Bouy/itan, who la one of 
the trustees, and is entitled to these five-eighths of the 


(rt) 4 Afy. * Cr. 484. 


t to 

* of 





mibseqnent net rents, subject to the interest of Frances 1849. 
-XnyktB representatives therein, insists, that she did not ^^^^^ 
l>eoome, and that her representatives are not entitled _ v. 
to any part of the rent« which became payable after 
ber death up to Lady-day 1848. The question is, 
*wliether her representatives are or not entitled to any 
portion of these rents. 

These Petitioners chum an apportionment under the 

-Apportionment Act, which was passed for purposes 

"vrliich are recited in the Act itself: — It says, ** whereas 

by law rents &c due at fixed periods are not appor- 

tionable, &c., from which it often happens that persons 

'^hose income is derived from these sources are de- 

prived of means to satisfy just demands, and other 

^vils arise therefrom, which evils require remedy.** No 

^^^ae could occiu*, in which it is more clear, that the 

I^oliqr of the Act of Parliament applies, for here, the 

'^idow is necessarily exposed to the very inconveniences 

pointed out by the Act. 

^&re the words sufficiently clear to give to her re- 

P^^^^esentatives the right here claimed? The enacting 

V^irt is, "that all rents made payable or coming due 

^^ fixed periods, under any instrument that shall be 

^^ecuted after the passing of the Act, or (being a will) 

^*I^t shall come into operation after the passing of the 

A.ct, shall be so apportioned, that on the death of any 

person interested therein, his executors shall be entitled 

to a proportion of such rents." 

Now, the Act in question passed in 1834 ; the will 
was dated in 1836 ; the testator died in 1838, and Mrs. 
Knightf who was entitled for life to these payments 
under the will of her deceased husband, died in July 

y 2 It 






It Id quite clear, that Mrs. Knight became entitled 
receive these rents under an instrument which 
into operation after the passing of the Act. It is d 
jected that the Act cannot apply, because this is 
gift of five-eighths of the residue of the rents afte^^ 
payment of certain outgoings, and because the will 
not state the time when the payment in respect 
this share is to be made. The argument |lays asi' 
this : — that the rents are necessarily payable at certi 
periods, and that in all transactions of business, v 
must consider them as payments at fixed periods, 
if they are payable at certain fixed periods, why is 
Knight not to have her due proportion of them ? 

It is said, that the periods are not fixed in the w 
required in such a case : — That the rents under lea 
are payable to the lessor at certain periods, but t 
this has nothing to do with the payment to other 
sons. This lady, however, was entitled to a ce 
share of the rents, and they were to be paid to her, 
by the lessee, but by a trustee : the trustee was entitl 
to receive them from the lessees at certain periods, I> 
no sooner did the fright of the trustee accrue, th 
at the same instant, the right of this lady arose t 
receive the share given to her by the will. 


I do not see the difference between this and the case 
of fixed payment of dividends on property in the funds, 
on which there are fixed charges. 

I cannot consider that the Act requires more. The 
payments are fixed by the nature of the contract, and 
the right to receive given by the subsequent will or 
instrument must accrue at the moment the trustee has 
a right to demand the rents. I do not see why this 
case is not to be considered within the Act. 

I am 


I am of ojHnion that the case is within the Act, and 
'that this ladj is entitled to her proportion. 

The necessary enquiry must be made. 





Note. — On the subject of apportionment, see Ex parte Swt/th, 

1 Swan. 337., 4 & 5 JT. 4. r. 22 ; Fordtfce v. Bridget, 1 H. Lds, Ca, 

1. ; IPaixm v. Shefypard, 10 Sim, 186. ; Browne v. Amyot, 3 Hare, 

173. ; Michell ?. Michelle 4 Beav. 549. ; Campbell v. Campbell^ 

7 Beav, 482. ; Carter v. Taggart, 1 6 Simont, 447. ; KevUl v. Davies, 

15 Simons, 4€6. ; Warden \. AMumer, \1 L,J, (Ch.) 440.; jS%^- 

^jHord V. Wilson, 4 /Tar?, 395. ; Botherotfd v. WooUey, 5 Tt/rwhilt, 

^22. ; Shipperdson v. Toii;^, 8 Jurtr^, 485. 


D<rc. 21. 22. 


iViV WlLLIAMSy having a power to appoint Construction 
a fund, executed a deed daied in 1823, whereby upoifdefuIT' 
«he appointed, that the trustee should stand possessed before becom- 
of 6000i consols, after her death, in trust for Susanna paVment. 

JMilb for life, and, after her decease, in trust for her Personalty 

was given to 
liusband Thomas Mills for life ; and after the death of parents for 

the 8ur\'ivor, upon trust "for all and every the child l"e>^»^"re- 

sind children of Thomas Mills on the body of the sidd their children 

Susanna his wife, to be equally divided between them, 82J|^"^Jo be 

if more than one, share and share alike; the part or paidattwenty- 

parts of such of them as should be a son or sons to be i^g^^ unless 

TMud, assi^ed or transferred to him or them, at his or in the lifetime 

, . of the parents, 

their age or ages of twenty-one years ; and the part or in which case, 

parts of such of them as should be a daughter or pay^n^n' ^^ 
*^ ° to be made on 

daughters the death of 
the survivor. 
There was a 
gifi over on the death of a child before becoming entitled to payment. A child at- 
tained twenty-one, but died in the lifetime of her parents ; Held that the gifl over 
(lid not take effect. 


1849* daughters to be paidj assigned or tranafeired to hcK^.^^^ 
^*^^^^^ or them^ at her or their age or ages of twenty-oiiiK^:^!^ 
WiLUAMs. years, or day or days of marriage, which should r cg^^ -^i^ 
spectively first happen, together with all dividend^J^^ 
interest, income and improvements thereof in the mea.^^^^ 
time, unless such respective times of payment aboud^i/^ 
happen in the lifetime of the said JTunnas MUls vc^g^j 
Susanna his wife, or the survivor of them, in whi^^slr 
case, the same should be paid, assigned or transferred]?-^ 
immediately after the decease of such survivor. 

** And in case any of the same children should happen < 

to die, before he, she or they should, by virtue of the 
aforesaid trusts, become entitled to the payment, assign- 
ment or transfer of his, her or their respective part 
or parts of the 6000/. consols, and of the dividends, ^ 

interest, increase and improvement thereof, then the ^ 

part or parts of him, her or them, so dying, should go < 

and be paid, assigned and transferred unto, and to the ^ 

use of the survivors or survivor of them, who should £ 

live to become entitled to have their, his or her part 
or parts thereof, paid, assigned or transferred to them, 
him or her as aforesaid, together with their, his or her 
original part or parts thereof." 

Thomas Mills died in 1834, and his wife Susanna:^ ^^ 
in 1848. They had had seven children, all of whon3i;s>.OQ2 
had attained twenty-one at the time of the executior<:>f f^^ 
of the deed of 1823. They were all now livinp ^ >«-^ ^ 
except Elizabeth^ who died in 1825, having attaine^^sz^ged 

The question was, whether the representatives of 

Elizabeth were entitled to 857/. 25. \0d. consols, beii 
one-seventh of the trust fund, or whether it had _ 



ovGijr to her surviving brothers and sieter, under the 1849. 
of survivorship above referred to. '"^T^'^"^^ 

* In re 


\ RaundeU Palmer and Mr. Collins for the legal 
personal representatives of Elizabeth. The limitation 
18 "to all and every the children ; this gives them an 
iminediate vested interest. Payment was to be made 
vA^ 'fci^entj-one or marriage, therefore the title to pay- 
n^ent or the capacity to receive accrued at that period^ 
tlioufh actual payment could not be made until after 
the death of the tenants for life. The gift over is not 
on death before payment, but before becoming ^^en- 
titlcKl to payment^" and such title accrued at twenty- 
one. The postponement of payment until after the 
deaths of the parents was necessary for the sake only 
of preserving the life estates of such parents, and was 
i^^t intended to alter the rights of the children inter se. 
If the term payment be considered ambiguous, and Jt 
^ doubtful^ whether it refers to the children or the 
P^u^nts, that construction is to be adopted which ap- 
P^ftTB the most rational, and will best answer the in- 
^i^tions of the appointor, namely, that which will 
®®ctiTe a provision for all and every of the children. 
It 13 an unlikely intention to impute to the settlor to 
"Old that she meant to deprive a child, who attained 
t'^enty-one, and had a family, of every provision, merely 
^^^caiise he might not happen to survive the tenant 
for life, and that too, in favour of other children who 
^**iglit have no families to provide for. This con- 
struction is justified by a series of authorities. Thus, 
^^ ^^eys V. Beynous («), " by a settlement made 
pKvions to the marriage of A^ and B., certain ex- 
^^i^eqner annuities were vested in trustees, in trust 
fcr the husband and wife for life, and after both 


(«) 6 Bro. P. C\ 398. 

Y 4 











.re __ after *«.^^„, of tbc ctt j^^et «» .^latt ^ 



''"'•'' "^^.nt^^ 

«*^''^°^'aftct tV»e 

to ^ ri But 


V, «ld die befc- t^^«- 







able by ^^^ 










^ereW -;, 








A at t«e«w fntbfe. ^o- - , ga^^^^» 




oi ** 







one." •»* 

. ^oB beAd, ^^" .„^jt tN»efttJ- 


,^ Uor««!/ 


dc^tVv oC f;^ ^„, ^ct Y^.^ ^ of J^y ^j ^e rf' 


tbo P^::"l, or tbey 








9 B^^'^' 




aid trosts, become entitled to the payment, assigninent 1849. 

r transfer of his, her or their respective part or parts ^^^^"^^ 

F die Hud 6000iL consols ;" and the direction is equally Williams. 

cpress, not to pay " until after the decease of the sur- 

i vor " of the parents. It is to be observed, that at 

le date of the settlement, there was no probability of 

lere being any other children, for the eldest was then 

trty-three and the youngest twenty-six; moreover, 

lis is not like the other cases, where the provision 

as made by a parent for his children : here the ap- 

>iiitor had no child. In Whatford v. Moore {a), 

here portions were provided for younger children, 

ich portions to be paid to daughters at eighteen, or 

Ays of marriage, which should first happen after the 

5veral deaths of husband and wife, otherwise within 

uree months after the death of the survivor of them : 

; was held, that the representatives of a daughter, 

rho attained eighteen, married and died in the lifetime 

>f her parents, were not entitled to her portion. 

Mr. R. Palmer in reply, 

Tlie Master of the Rolls. 

Unless I find something to alter my present impres- 
sion, I must hold that the fund belongs to the repre- 
sentatives of Elizabeth. 

This is a very extraordinary sort of settlement to 
make under the circumstances. It must have been 
prepared by some one extremely carelessly, and was 
most probably copied out of some precedent book with- 
out regard to the existing circumstances. A provi- 
sion is made for Mr. and Mrs. Mills and the survivor, 


(a) 3 Myl. ^ Cr, 270. 


1849* and on their deaths there is a limitation to '^ all and 
^■^^^"^^^ every their child and children " to be equally divided. 
Williams. So far there is a clear vested interest. Their shares 
were to be paid at twenty-one^ or marriage, unless such 
times of payment should happen in the lifetime of the 
parents or of the survivor, in which case the same was 
to be paid immediately on the death of such survivor. 
Then there is a clause of survivorship in case any child 
died before he became ^^ entitled to the payment " of his 

I will look at the case of Whatford v. Moore, and if 
I find reason to alter my opinion, I will mention it 
again. I do not think I ought to be called on to decide 
this debateable matter on this form of proceeding, (a) 
I should not have done so, except on the request of all 

Dec. 22. The MASTER of the ROLLS. 

I have looked at H'hatford v. Moorcy and see no rea- 
son to alter the opinion I have already expressed. 

(a) On petition under the Trustee Indemnity Act, 10 & 11 Vid. 
c. 96. 



READ V. STRANGEWAYS. » •^«»- 22. 

i testator^ by his will, bequeathed his residuary By his will 
rtate equally, between John Benson Read, EKza- bequeathed 

tid, Robert Middleborough Childerstone, and Ann j)"» ''^sidue 

•^ , between Ann 

Barker of Paul Street^ Finsbttry Square, spinster, Sarah Parker 
era! other persons (naming them). By a codicil, J^J^^^° ""^^^^ 
ecnting the will, and that Elizabeth Read and (naming 
Middleborough Childerstone had severally de- on^e legated 
this life, the testator bequeathed the same resi- having died, 
stween the said John Benson Read and the other a codicil, gave 

lersons (namin^^ them as in his will), ** Ann Sarah J**® residue 

^ ^^ ^ between eight 

, George Fawcett, of and persons, 

arker of , spinster, and !!lfn ^^"' 

in equal shares and proportions, share Sarah Parker, 

1-1 99 G, F., and 

^ alike. ^„„ ^^i^. 

It appeared 

Master, by his report, found, that, Ann Sarah Parker and 

and Ann Parker were one and the same person. ^^^ Parker 

were the same 


bhe cause coming on for further directions. Held, that she 

was entitled 
to onc-tenthy 

Roupell and Mr. Elderton appeared for the Plain- a"^ ^^^ ^^ , 


d of the residue. 

Turner, Mr. Walpole, Mr. Faber, Mr. E. G. 
Mr. fF. M. James, and Mr. John Baily for other 

Birkbeck, for Ann Sarah Parker, claimed two- 
ths of the residue, on the ground that her name had 
mentioned twice in the residuary gift. He argued, 





tliat the ordinary rule as to cumulatiye legacies did 
apply here; the testator having carefully redted 
willy and again repeated the names. That he had gi 
the different elevenths^ probably not knowing that 
persons were identical, and possibly from a 



That the case was, as if a testator had given his r» 
due between A. B., Sir Walter Scottj and the axithar-^zT of 
Waverhy (not knowing at the time that Sir IVc^mrlter 
was such author), in which case. Sir WaUerYrofoUKShe 
entitled to two* thirds. 

He cited Ridges v. Morrison (a), to shew, that irerj 
slight grounds would rebut the presumption agaixut 
double legacies. 

T/ie Master of the Rolls, without hearing the 
other side, said, he was clearly of opinion thafe ihc 
legatee took one share only. 

(a) 1 Bro. C. C. 389. 



BODICK ». GANDELL. M<t m, «6. 

Nov. 14. 

^ '-U* 18 nimeoessaiy to add to the Btatement of this A creditor, by 

case as coatuned in the judgment of the Court; directing his 
o*" -Which the foUowing is the brief outline : — Se'debt*tr^ 

another per- 

JScveral Bwlway Companies were indebted to Messrs. *q"jj."*ii-^^ 
Gncz9x<feff and Bruntan, their engineers. On the other tually assign 
^^^•JciLcS, Messrs. Gandell and Bruntan were considerably ^^l^^ ^^^^^ 
i'^d.^bted to the Plaintiffs^ their bankers ; and the latter person. 

lug pressed for payment, Messrs. Gandell and there may be 
'^■^cjitow, at the suggestion of Messrs. Pinniger and ^ ^^l^^^f^*!,^' 
^^tmacottf the solicitors of the Companies, by letter or property 
the 26th of December 1845, requested Messrs. q^e^tly"a^' 
^wger and fFestmacott to pay the bankers the money juired, even 
<lixe to them from the Railway Companies, and also |he jfcq'ubi-^ 
^^tHorised them to receive it. Messrs. Pinniger and tion depends 
^^^^tmacatt also wrote to the bankers to say, that they gencies and 
^^oixld, on receiving the money due to Messrs. Gandell possibilities 
**^^ Brunton from the railways, pay it to them (the A railway 
l^^^kers). The bankers acknowledged the receipt of f3^%^^ 
^^^ letter, to which they applied the following expres- -4., their en- 
**^»i8 : — "as guaranteeing the payment of all monies ^^^reatly 
^^^^ived by you on account of Messrs. Gandell and indebted to 
^"^^ifiton into our hands.'' " The amount due to us is xhe latter' 
r 3000i, on payment of which your letter will be !;*^*"e pressed 

n ">r payment 

Up. or securitVy 

Messrs. f. by letter 
- ^ to the soli- 

^1^^*^ of the Company, authorised them to receive the money due to him from 
^^ liailway Company, and requested them to nay it to the banker. The soli- 
-r^^J*^, by letter, promised tiie banker to pay nini such money on receiving it. 
^^<f » that this did not amount to an equitable assignment: and the solicitors having 
^^^Wed the amount and paid it over to A. : held, secondly, that this was no more 
^t^ati a promise or undertaking, for which the solicitors might possibly be responsible 
^^ i^Mr, but tliat the remedy was not in equity. 


1849. Messrs. Pinniger and fVettmaeati fifterwvrjb leoaved!^^ 

RoDicK ®^°^ ^™ *^® Companies exceeding SOCXUL, whici ^ 

r. they handed over to Messrs. Gandett and ^r«iiftm, and 

Gakdblu j^^^ ^^ ^j^^ bankers, as agreed. 

There were subsequent dealings between the banken * 

and the engineers, during which the bankers had re- 
ceived more than 3000/1, and this gaye rise to a ques- 
tion whether there was a limited or continuous liatnlity. 

The bankers filed their bill on the 7th of December 
1846, against Messrs. Gandell and Bruntan^ and against ^ 

Messrs. Pinniger and fFestmacott, insisting that there 
had been an equitable assignment of the monies due 
from the Railway Companies ; and, on that foundation, 
they sought to make all the Defendants liable. 

On the 29tii of January 1847, the engineers hecame^^^^^ 
bankrupt, and their assignees were brought before t^^^^^^f^L 
Court by supplemental bill. 

Messrs. Pinniger and fVestmacott severed in ther^^^.,^ 
defences ; and the former, by his answer, referred It" ^ 

the answer of the latter, which he believed to be tTUM:^-^^^^ 
and desired to be taken as part of his own answer. 

Mr. Turner, Mr. R. Palmer ^ and Mr. Prior, for t^ the 
Plaintiif, argued, first, that the letters constituted .E:»(/ ^ 
valid equitable assignment of the monies due from tS* tie 
Railway Companies ; Lett v. Morris (a). Bum v. Cc 
valho (J), Miln v. Walton (c), Malcolm v. Scott, (d) 


(a) 4. Shnom, 607. (c) 2 Yo. ^ CoL (C.C.) 354. 

(b) 4 Mi/L 4- Cr. 090. (rf) 6 Hart, 570. 


And, seocNQdljy that there being a contmnoos lia^ 1849. 
bility^ Hargreave v. 8mee{a)y Henniker v. Wigg{b)j the ^"^T^^*^^ 
V Mtfi k ers had a right to appropriate subsequent pay- «. 

icnts in discharge of subsequent liabilities; Simson ^awdbll, 
Ingham {cy, and had a general lien on securities 
deposited with them ; Dams v. Bowsher (df), Brandao 
-^y. Samett (e). That the conduct of the parties was 
culmissible to prove the nature of the agreement: 
.Sden T. Earl of Bute (g), from which, at all events, 
mt might be inferred, that the original agreement, if 
Ximited, had been extended so as to cover subsequent ad- 
^wances; Ex parte Kensington {h)y Ex parte Alexander (i), 
petrte Langston. (h) 

They also argued, that Pinniger was bound, in this 
'transaction, by the acts of his partner Westmacott : 
Sandilands v. Marsh (/), Blair v. Bromley, (m) 

Mr. ZJoyd and Mr. CHffardy for Westmacott, argued, 
-that there had been no valid equitable assignment of 
the debts due from the Companies ; and that the soli- 
citors of such Companies had contracted no equitable 
liability ; and further, that if any guarantee had been 
given, still it was not continuous, but limited to the 
debt due at the time : Kirby v. The Duke of MarU 
borough {n\ Melville v. Hayden(o). That this had 
been discharged by the subsequent receipts; Boden^ 
ham V. Purchas (p), Field v. Carr (y) ; and that the 


(a) 6 Bing. )Mi, (*) 17 Ves. 211. 

(h) 4 Q. B. Rep. 792. (/) 2 Bam. ^ Aid. 673. 

(c) 2 Bam. <J- CV. 65. (w) 2 PhUBpt, 354. 

\d) 5 Term Rep. 488. (») 8 MaiUe 4- S. 18. 

(e) 12 C7. «j- Fin. pp. 806. 810. (o) 2 Bam. ^ Aid. 592. 

{g) 3 Bro. P. C. 679. (p) 2 Bam. * Aid. 39. 

(A) 2 Rote, 138. (q) 5 Bmg. 13. 
(i) 1 Gfyn * .7. 409. 







securities had thereupon been avoided; 
dktan (a), Hammond v. Fatter, (b) 

Mr. Walpole and Mr. Wtay^ for JPinnijfer, BXgu^mned, 
that he had incurred no liabilitj by the act of ^^J^ 
partner, unless it were shewn, that IFestmaeott ^ 
special authority to bind him as to this tiansact^Sbo; 
Duncan v. Loumdes (c) ; for that a partner was not 
liable for a guarantee given by his co-partner, im^ the 
name of the firm, in a matter not in the ordijEury 
course of their business ; Hasleham v. Young* (d) 

Mr. Roupell and Mr. Kinfflake, for the assignees. 

Mr. Glasse for Messrs. GandeU and Brunion. 

Mr. R. Palmer in reply. 

The Masteb of the RoLLS reserved his judgmes' 

Nov. 14, The Masteb of the Rolls. 

In this case, Messrs. GandeU and Brunton^ wl 
were engineers, were employed in the way of th^ 
profession by certain Railway Companies, agunst who 
they claimed large sums of money to be due to theic^ 
Those Companies employed the Defendant, Mr. 
macotty or Messrs. Pinniger and fVesimacott, who we^^ '^ 
partners, as their solicitors, to settle the amounts of th^^ 
claims made against them by GandeU and BruntowM* 
At the same time, GandeU and Brunton employed the 
Liverpool Union Bank, now represented by the Plain- 




(a) Turn, ^ R. 224. 
yt>) 5 Term Rep, 635. 

{c) 3 Camp. 478. 

(d) 5 Q. B. Rep. 633. 



tiff (their public o£Bcer under the statute) as their 
bankers, and became indebted to the^ bank in a large 
sum of money, payment of which was pressed for. 

In this state of things, GandeU and Brunton desired 
that the debt which they owed to the bank should be 
secured by means of the debts which were owing to 
ihcm from the Railway Companies ; and it is alleged 
the Plaintiff, that in the month of December 1845, 
debts due to Gandellwid Brunton from the Railway 
Oompanies, were, in equity, lassigned to the bank, as 
security, to the extent of 3000/. at least ; and the 
sought by this bill is founded on that allegation. 


^wo questions are made : 1st. whether there was 
such assignment as is alleged ; 2nd. whether such 
A&^mgnment (if any) was or became valid as a security, 
*ox- anything more than the sum of 3000/. which was 
a^^^^i:]ally due to the bank at the time when the security 
accepted, either as against GandeU and Brunton, 
the Defendants Pinniger and fFestmacott, or fFest" 

1 • There is no doubt, but that a creditor, by ordering 

^*^ clirecting his debtor to pay the debt to another per- 

^^*^» may, in equity, effectually assign the debt to such 

^th^y ^person ; and it appears by the case of Bum v. 

^^m)alho(a)9 that an equitable assignment may be made 

^®^Ctual, by a distinct promise and agreement to apply 

^ fund in an agent's hand in a particular manner, and 

to give directions for that purpose to the agent. It is 

^tled, also, that in equity, there may be a valid as- 

s^ment of funds or property to be subsequently ac* 


(a) 4 Myl. ^ Craig, 690., and 4 Jur. 741. 

Vol. XII. Z 


1849. quired, even in cases where the acquidtiaa depends 
^"T^'^^ contingencies and possibilities onlj. (a) 


Oandbl^. Jjj considering the evidence of the transaction viiacb 
took place, it is necessary to keep in view the position 
of the several parties. 

The Bulway Company were debtors to Chmddl and 
Bruntan to a considerable amount. 

Gfandell and Brunton were themselves indebted to 
the bank, represented by the Plaintiff, to a laige 
amount, which they were, at that tioie, unable to pay; « 

and they desired that the debts owing to them from the ^^ 

Railway Companies should, when received, be made ap- 
plicable to the payment of the debts owing by them to 
the bank. 

Mr. James Lister was manager of the LiverpoolTJvSx^^ 

Westmacott and Pinniger, so &r as the latter 
lawfully bound by the acts of fVestmacott, were floli— l^^^]]. 
citors to the Railway Companies, the debtors, and wemrm^^ete 
employed about the settlement of the cliums upon tb.c£^the 
Companies, and, amongst others, of the chums o:^> on 
Gandell and' Brunton. 


On the 24th December 1845, Mr. TFestmaeaU, wiC^-7i{ 
reference to some application made to him by Gandc^mm^ 
stated, that there were large sums due to Ganm^ff 
from the different Companies, not only those Cono* 
panies with which Westmacott was connected, but othdrv 


(a) Sec Alexander v. Tlu: ikf^A 35. ; and JffrMWtfl v. Coe^per, 
Ihtke of Wellinglon, 2 Riut, ^ 9 Beav. 252. 



and speaking of the desires of the bankers, he 
jmsses himself thus: — ^' Could 70U not arrange it 
this way ? Give the bankers a statement of what is 
i to you fixHn each Company, then give a direction 
us that these sums, when paid, should be paid to 
mar account with them, and we write them a letter, 
i^c^^ng, that on the payment, they shall be so placed to 
f^ovsr credit. You can state to them that that has been 
ix^^gested by us as the proper course.'' 


y <* direction to us," I presume Mr. Westmacott 
it, direction to himself and his partner Mr. /%i^ 
', the solicitors of the Company, who are not al- 
to have had any interest in or control over the 
ds of tiie Companies, or any right to act, otherwise 
according to specific orders of the Companies, 
discharge of any debts owing by them. But appa- 
^^^cKxily, in compliance with this suggestion, Gandell and 
-S^^^fliftwi wrote to Pinniger and Westmacott as fol- 
lo^vv^fl : — «« London, 26th December 1845. Dear Sirs, — 
^^^ hereby request of you that you will pay into the 
of CunKffe, Brooks & Co., for the Liverpool 
Bank, all monies now due to us from the rail- 
^^ys (naming them), and we hereby authorise you to 
^^<^ive such monies, in our names, for the purpose, 
^^^^Hn the different committees. We will thank you to 
''^TfHe to the bank, saying you will act on this letter." 
This letter consists, in substance, of a power or autho- 
^ty given to Westmacott to receive the monies, and a 
^Ucction to him to pay monies when received to the 

Mr. JVestmacotty having received this letter, sent a 
<iop7 of it to the bank, and wrote a letter of his own 
to the bank as follows : — " Plough^ Cheltenham, 27th 
December 1845. — Gentlemen, we have received from 

Z 2 Gandell 






Ganddl and Brunton a letter, of which we hand you a 
copy on the other side. As requested by that letter^ 
we beg to say, that we will, on receiving the monies 
due to Gandell and Brvnton from the several Railways 
mentioned, pay to you to their credit, and that we 
will effect this as early as possible. For Pinniger and 
self, H. S. WestmacottJ^ This letter was sent to Ganr 
dell and Brunton^ no doubt for the purpose of bdng 
by them delivered to the bank. 

It seems clear, that the authority and direction 
given by the letter of Gandell and Brunton extended 
to all the monies due from the Railway Companies to 
Gandell and Brunton, who appear to have so considered 
it It was delivered on the 29th of December 1845 
to Mr. Lister, the manager of the bank, by Mr. Wat- 
son, the clerk of Gandell and Brunton. Lister having 
said that the letter would do, Watson added, '^ of 
course Gandell and Brunton would be allowed to draw 
against it;" but Lister, at first, positively refused to 
consent to that, and said, that ^^ he should hold th 
letter for the money then overdrawn," and should noti^< 
make any further advances. Watson thereupon went 
to communicate with his principals. 




On the same day, and as it would seem, before Waf\%,^^^'^at' 
son's return. Lister wrote to Pinniger and Westmaco^^^'rs^mcoti 
OS follows : — 

<' 29th December 1845. .S5. 

" Gentlemen. — I have received your favour of tU,* the 
27th instant, guaranteeing the payment of all the maniss x^^mies 
received by you on account of Gandell and Brunton. — •«% — 
Jas. Lister.'* There is a note upon or postscript to thC:^ this 
letter, which was probably written at a subsequent iiim^^'me 
on the same day. The balance then due from GamJk^m^sde// 
and Brunton to the bank was 2762^ As. 7d., and Gr^^m^kf^ 


deO and Brunton, plainly thinkliig that they were giving 
Bccurity for more than the actual balance then due from 
them, drew on the bank for some further sums^ to the 
amount of between 200/. and 300/. 



Being informed by Watson^ that Lister would make 
no further advances^ they sent Watson back to Lister^ 
with a letter dated on the same 29th December 1845, 
which was as follows : — " 29th December 184 5. — We 
are much surprised to learn from Mr. Watson the result 
of his interview. With so large an amount due to us 
from highly respectable parties^ who have acknowledged 
their liabiUty and are now subscribing to pay us our 
accounts, together with the undertaking of men of such 
lugh standing as Messrs. Pinniger and Westmacotty we 
could not have supposed you would have hesitated to 
make us the moderate advances we require. Fully 
relying that this would have been the case, we had, 
previous to the return of Mr. Watson, drawn some 
further small sums, making the total advance to us 
about 3000/. We shall fully rely upon your protecting 
these cheques, but shall not, of course, in compliance 
with your request, make any further drafts upon you. 

" As the letter you now hold is for so large an amount, 
we have sent to London for a similar letter covering 
only the amount of the advance to us, 3000/.'' 

Upon reading this letter, Mr. Lister consented to 
honour the cheques mentioned in the letter, to the extent 
of 200/. or 300/., which would make the whole balance 
due to the bank from Gandell and Brunton about 3000/. ; 
and a note or postscript appears to have been then 
added to the letter before written by Lister to West- 
macalt, in these words : — ^' The amount due to us is 
idider 3000/. on payment of which your letter will be 
giren up." 

Z 3 It 


1849. It does not appear that GandeU and Brunion ever 

^'J^*^^''^'^ did what in their letter they stated they had don^ sent 
•• to London for a similar letter, *' covering only the 

Gandbll. amount of the advance to us, 3000i ;" and I am of 
opinion, that as the matter stood after the transaction 
of the 29th December 1845, the security (whatever the 
nature of it was intended to be) was meant to extend 
only to the amount of about 300021, including the sum 
previously due, and the sum to become due on payment 
of the drafts then consented to be paid ; and that Mr. 
fFestmacott, if he had received SOOOL on account of 
debts due by the Companies to GandeU and Brunion^ 
and had caused the same to be paid to the bank, would 
have been justified, as against GandeU and BruntoHp, 
and woidd have been entitled to have his letter of th^ 
27th December returned to him. Now it appears that- 
Mr. Westmacott did, in point of fact, on behalf of th^ 
Companies and by their direction, out of their funds, and^ 
on account of the debts due from them to GandeU and,. 
Bruntonj pay to GandeU and Bruntan, in the early part- 
of 1846, several sums of money, amounting to more 
than 3000/. Notwithstanding his promise and under* 
taking contained in his letter of the 27th December, he^ 
pud no part of this money to the bank, gave no notice 
to the bank, and permitted his letter of the 27th De^ 
cember to remain in the hands of the bank. It is repre- 
sented by him and on his behalf, that in this transaction 
he acted only as the agent of the Companies, made pay- 
ments only by their orders, and received nothing under 
the authority of the letter of the 27th December. I am 
surprised that such an evasion should have been at- 
tempted, and consider it quite dear, that though ordered 
by the Companies to pay to GandeU and Bruntony he was 
bound to consider the monies which he received, or 
which were placed under his control, for the purpose of 
payment, as received by him on account of the debts 



due to Gandell and Bruntan from the Companies, and 
iabjeet to his undertaking, and that in making the pay* 
ment to Gandell and Bruntan, if his letter was only a 
promise or undertaking, he violated that promise or un- 
dertaking, and if it amounted to an assignment of the 
monies he should receive on account of the debts, he 
paid to Gandell and Brunton sums of money which he 
knew had been assigned to the bank, and which he 
had undertaken to pay to the bank on receiving them. 

The bank, notwithstanding the declared resolution in 
December 1845, to make no further advances to Gan- 
ddl and Brunton, were, nevertheless, induced to act as 
iheir bankers, and receive and pay money on their ac- 
count. Their subsequent receipts exceeded 3000iL ; but 
"their subsequent payments were still greater, the balance 
W the running account was never paid, and when Gan^ 
Jdl and Bruntan became bankrupt, they were very 
largely indebted to the bank. 

From the subsequent dealipgs, I strongly incline to 
think, that, as between Gandell and Bruntan and the 
liankers, the transactions were such as to extend the 
security, whatever was its nature, beyond the original 
intention, and to make it applicable to the balance at 
mnj time due to the bank ; but it appears to me, that 
tiie right of the Plaintiff to any relief in this suit de- 
pends upon the question, whether there was, in the 
first instance, an equitable assignment of the debts due 
from the Rulway Companies to Gandell and Bruntan, 

or of so much of such debt as should be received by 




If, in this case, Gandell and Bruntan had promised 
and agreed to assign to the bank the debts due to 
themselves from the Bailway Companies, and to give to 

Z 4 the 


1849. the Railway Companies the neoesaaxy cErection for tliai 
purpose, the case of Bum v. CarvaIho(ayf which was 
mainly relied upon by the Plaintiff, would have been 
authority for considering the transaction as an equit- 
able assignment, notwithstanding a fiulure in the pro- 
mised direction to the debtors, the Railway Companies. 

The bill alleges, that Gandell and Brunian (wanting 
forbearance or accommodation from the bank) proposed 
to ^ve to the bank a charge, by way of equitable 
assignment upon the debts due to them firom the Bail- 
way Companies : — that Lister, on behalf of the bank, 
agreed to accept such proposed security, and that 
CrandeU and Brunton then requested Wesimaeatt to 
ooncur in the proposed arrangement with the bank, 
t. e. in the proposed charge by way of equitable asogn- 
ment, which is alleged. Now fVesimacott was solicitor, 
or one of the solicitors, of the Railway Companies, 
whose debts were in question, and was employed 
about settling claims upon the Companies; but it is 
not alleged, that he had any interest in the debts, 
any authority to pay them, or any control over the 
funds out of which they were to be paid, or that he was 
to have any consideration whatever for that which it 
^vas proposed he should do in the transaction, or that, 
in this particular matter, he was acting on the behalf of 
the Ridlway Companies ; but he was asked to concur in 
the proposed arrangement, i. «., as I understand it, in 
the proposed charge by way of equitable assignment. 
This request, it is said, produced his letter of the 
24th December, which I have already mentioned. I 
think this was not a compliance with a request that he 
would concur in a charge by way of equitable assign- 
ment. It b a suggestion, that an authority should be 


(ft) 4 A/y. 4- Cr. 690. 



ren to him to receiye the debts, with a proposed 
>iiii8e9 on his part, to place the debts, when received, 
the credit of Gandell and Brunton, in account with 
& bank, and this is the suggestion which was acted 
on. Gandell and Brunton did authorise Wentmacott 
receive the debts, and direct him to pay them, when 
3eiTed, to the bank, and Westtnacott communicated 
is authority to the bank, and promised to pay the 
Allies, when received, to the bank, according to the 
rection. This is the transaction which Mr. Lister 
iled a ''guarantee," and Mr. Wettmacotts share in 
bich is, by Mr. Gandell^ called his ''undertaking." 
^ther party, at that time, called it " a charge by way 
' equitable assignment," which by the bill, it is alleged 
»'be» and to have been proposed and intended to be, and 
seems difficult to ascertain the grounds, on which the 
ithority given to a person, who has no interest, to re- 
ATe, and the promise of the same person to pay when 
sceived, can be said to constitute an equitable assign- 



There is no direction nor any agreement to direct 
iie Companies to pay the debt to the bank, no direct 
^reement between Gandell and Brunton and the bank 
roved ; but Gandell and Brunton authorise Westmacott 
> receive something in which he had no interest, pro- 
mt or future, vested or contingent. He had a mere 
uthority from Gandell and Brunton^ which was com- 
Eunicated to the bank, with Westmacotfs promise or 
ndertaking. The cases of possible legacies or of freight 
) be earned, appear to me to be very different, as, in 
lose cases, there is a possible interest in property, upon 
rhich, when acquired, the assignment may operate ; 
at Westmacott had nothing upon which any assign* 
lent could operate. It does not appear that the 
lediation or interference of Westmacott was, in any 



1849. way> required to make an equitable assignment, which 
might probably have been effected without him, by an 
agreement on the part of GandeU and Brunion with 
the bank, that the debts due from the Bailway Com- 
panies to GandeU and Brunton should be charged with 
or made applicable to the payment of the debt due to 
the bank, and a further agreement to give the neces- 
sary directions for that purpose; but this, whatever 
was the intention, was not the course pursued. 

It was not contended, that every power of attorney, 
authorising a person to receive money and directing 
him to pay it to a creditor of the party granting the 
power, would amount to an equitable assignment, and 
I am Tmable to come to the conclusion, that the trans- 
actioni, as it took place between GandeU and BnaUan 
and the bank, amounted to an equitable asngnment, or 
that the letter of Westmacottj acting for himself or for 
himself and his partner, was any thing more than a 
promise or undertaking, for which he may have, been 
and may still be legally responsible, but for a breach of 
which the remedy is not in this Court. 

Considering the whole of the transaction, it is not 
without regret that I have come to the conclusion, that 
the Plaintiff is not entitled to relief in equity upon 
this bill ; but so thinking, I must dismiss it, but with- 
out costs, as against Westmacott, and also against Mr. 
I^nnigeTy who, although he seems to have had no 
knowledge of the transaction, was partner and ccm- 
nected with Westmacott at the commencement of the 
transaction, and desires the answer of fVestmacoU to be 
taken as part of his own answer. I think that the 
Plaintiff must pay the costs of GandeU and Brunton 
occasioned by and consequent upon their bang served 




ih ft subpoena to hear judgment, and that the bill must 
^smiflsed with ooets against the assignees of the 

NoTB. — An appeal to the Lord Chancellor is pending. 




Nov. 23. 

Dec. 4, 5| 6} 


Jan, 12. 

"^HIS case came before the Court upon demurrer 
to the whole bill 

A railway 
company be- 

The following is the substance of the aHwations, ^""^ lawfully 

. " . ° possessed of 

lich^ however, will be found more fully stated in the shares in an- 
Igment of the Court:- jf„-'f-. 

way company. 

By the 9 & 10 Vict. c. ccbcxxiiL, the London and having no 
ighton Railway Company and four other independent au^^honty to 

• ^ . , , , do so by their 

Imtary compames were amalgamated^ and a new cor- net of parlia- 
ration created, called " The London, Brighton, and ^^Jj^ ^^^^ 
•UA Cocut Bulway," and all the property, ^^ shares,'' legally, as 
;, of the five old companies were vested in the new d^entienT 

npany. shareholder, 

Part *"^''®^^*® their 
number of 

such shares, or apply their funds for the support of the second company. 

i railway company is bound to apply all its monies and property for the pur- 

es ^irected and provided for by the act of parliament, and not for any other 

pose whatever. Any application of or dealing with the capital, funds, or 

oey in any manner not distinctly authorised by the Act is illegal ; and where 

ictors, for purposes not authorised by the Act, are proceeding to involve the 

f)any or shareholders in liabilities to which they never consented, relief may 

oufiht to be given in this Court. In such a case, one shareholder may sue on 

rhere were two Railway Companies, A, and B. A shareholder in A. filed his bill 
t>ehalf &c. against the Companies A, and B. and the directors of the two Com- 
iea» complaining, first, that the directors of A. had illegally invested the funds 
hares in B, ; and, secondly, of a separate transaction, whereby the capital of 
lad been advanced to B. upon an arrangement not authorised, and praymg for 
ef against the several directors : Held, that the bill was multifarious. 



1849. Part of the property of one of the amalgamated com- 

panies (the London and Croydon) consisted of 2033 
r7" shares in another independent Bailway CoropaBj (the 

Laing. Direct London and Portsmouth). The bill alleged, that, 
in order to assist the Portsmouth Company, the South 
Coast Company had taken 4000 additional shares in the 
Portsmouth Riulway Company, and, subsequently, a 
further number of 677 additional shares, and had made 
payments in respect thereof. 

The bill also alleged, that the Portsmouth Company 
had resolved to abandon the greatest portion of the 
line, and to complete only four miles of it, — viz., from 
Epsom to Leatherhead, and that for the purpose, further 
assistance was wanting, and that the two companies or 
their directors had agreed, that the South Cocut Com- 
pany should, out of their funds, supply the Portsmouth 
Company with pecuniary assistance for the puipoec, 
and should, accordingly, pay them 20,000/. by way of, 
what was called, ^^compensation for preliminary and 
parliamentary expenses,** and that an application to 
parliament should be made, to authorise the Brigldam 
Company to purchase the four miles of railway from 
Epsom to Leatherhead for 50,000/., including the 
20,000/., which was to be paid in any event. And 
that, in the meantime, and until parliamentary au- 
thority could be obtained, the South Coast Company 
should work the line intended to be purchased, as if it 
were their own. 

The bill was filed by the Plaintiff Salomons, on behalf 
of himself and the other shareholder? in the South Coast 
llailway Company against the South Coast and Ports-' 
mouth llailway Companies and certain of their directors, 
and insisted on the invalidity of these transactions, the 
same not being authorised by the amalgamating act, 




and it prayed a declaration, that the purchase of the 1849. 
sli&res and the agreement, was not within the powers of ^"^^^ 
the act, and that the parties who had joined in the pay- ^ v. 
mexits might personally replace the money paid, and 
lor an injunction against completing the agreement* 

Q?o this bill, the Defendant Laing and ten others, 
axid the South Co€ut Railway, demurred, for want of 
equity and multifariousness; and a similar demurrer 
^^vojB filed by William Arthur WilMmon and the Ports- 
^f^auth Company. 

2Mr. R. Palmer and Mr. fF. J. Bovill for the Defend- 
Aiits, the South Coast Company, Laing ^ and others; 

Htf n Molins for the Defendants, the Portsmouth Com- 
pany and W. A. Wilkinson. This is not the case of a 
public company embarking its capital in an independent 
foreign undertaking ; but the question rabcd is this : — 
"^tether the South Coast Company, being lawfully pos- 
sessed of 2033 shares in another Company, is legally 
incapable of taking all proper and prudent measures of 
Preserving them, by supporting the other Company, or 
^ust, of necessity, sacrifice the whole of its interests 
^^ the Portsmouth Company. Surely, such a trans- 
^Uon is capable of confirmation by the shareholders 
^t a general meeting; and if so, it is not competent 
for one dissentient shareholder to sue on behalf of 
^ the others, in respect of the transaction, which, 
fot all that appears, they do not object to. Foss y. 
Barlottle (a), Mozley v. Alston (b). No impediment is 
sUeged to the Company's filing a bill to obtain the 
relief required, if the Company be entitled to it Be* 


(a) 2 Hare, 461. 497. (b) 1 PhWips, 790. 


1849. aidea this^ the money iqpplied may haye ariaen firom pro- 

SiaoMONs ^^ ^^^ ^^^ capital, and might be such as may be 

V. properly applied. 


2. The bill is multifarious, for the two subjects of 
complaint are distinct^ and ought not to be comprised m 
one suit. The Portsmouth Company have nothing to 
do with the disputes between the South CtMuf -share- 
holders and their directors, and all the Defendaati^^^ 
are not concerned in all the subjects of complaint. 
Attorney 'General v. The Goldsmiths* Company (a). 
Attorney- General v. 7%e Merchant Tailors* 
pany (b\ Benson v. Had/ield(€). 

Mr. Turner and Mr. Cokj in support of the bilL 

It. is now clearly settled, that the assets of a 
pany, formed for a particular object, cannot, l^ally, 
embarked in a totally distinct speculation, Natusch 
Irving {d)i where the directors of a Life Assurance Co: 
pany were restnuned by Lord Eldon, from insu 
ships, and Colman v. The Eastern Counties Railway 
pany (e), where a railway company were by this 
restrained from embarking thdr capital in a st< 
packet company. 

In this case, the act of parliament in no way 
powers the South Coast Company to embark 
capital in the purchase of new shares in another 
way company, or to assist it or to buy up a finaction ol 
the Portsmouth Railway. Such an application of the 
funds is ultra vires, and is incapable of being confirmed; 
for it is a matter in which^the majority cannot bind the 


(a) 5 l^oru, 670. (d) Goto on Par in enk ip , App 

(b) 1 Myl. 4* K. 189. 398. and 2C. P. Cooper, 358. 

(c) 5 Beavan, 546. (e) 10 Beavm, 1. 


minority. Cmut y. Harris (a). The Brighton Com- 1849. 
pany are bound to apply their funds towards the par- 
i^ioular undertaking sanctioned by parliament, and to- 
yg^saSiB that only: Cohen -v. Wilkinson {b). They have 
power to divert the funds to another purpose against 
will of a single shareholder : Bagshaw v. The EclsU 
Union Railway Company (c). 

2. This bill is not multifarious : it relates to matters 
^hich all the Defendants are more or less mixed up. 
Soth transactions are the result of one scheme, and one 
^« tut the sequence of the other. On this they cited 
^^^emey^General v. Cradoch{d\ Salvidge v. nyde(e), 
^"Gt^npbell V. Mackay (^). 

^Mr. R. Palmer in reply. 

ZThe Master of the Bolls said he would consider 

TThe Masteb of the Bolls. 1S50. 

_ Jan, 12. 

^Ihis case came on for hearing upon demurrer to a 

^Ul filed by the Plaintiff on behalf of himself and all 

the proprietors of shares in the Londony Brighton^ 

South Coast Bailway Company (except the De- 

^^^'Vi^ants) against the same London^ BrightoUy and 

®5^i€lft Coast Bailway Company, the Direct London and 

oy^^fifuwf A Bailway Company,— 2>o Schuster, Edward 

)Isy, George Frederick Hotham, William Arthur 

^"^ilkinson, Samuel Laing, William Cash, Charles Sedge^ 


Ctt) TWn. ^ Rutt. 496. {d) 3 Myl. ^ Or. 85. 

Kfi) JtUi, 125. 136. (e) 6 Madd. 138. 

Ce) 7 Hare, 114., 2 HaU 4" («) 1 -9^^. * ^. 603. 

^«». 201. 


1850* JUU Crawley^ John Ldocrie^ Join Nix^ and Jama a 

In the argmnenty the Lomdm^ Brighton^ and Stniih t 
Coast Bailway Company waa more shortly called the < 
South Coast Company, and the IMrect Londam, and M, 
Portsnumtk Railway Company was more shortly called^ 
the Portsmouth Company : I shall adopt these abbre 
viated names when convenient. 

The bill prays a deckration, that it was not withi^^ 
the powers of the South Coast Company or the direcn^ 
tors thereof, to subscribe for or purchase, on beha..^^ 
or out of the funds of that Company, any shares ^^ 
the Portsmouth Company, and that the Defendan^t:^ 
Leo Schuster, Edward Crowley, and George FredenS^^ 
Ilotham ought to be taken and considered as having 
subscribed for and purchased the 4000 shares and ^Iie 
677 shares (which are in the bill mentioned), in 't.lie 
Portsmouth Company, on their own account, and no^ as 
trustees for the South Coast Company: and that it 
may also be declared, that an agreement or arrang)^- 
nient in the bill mentioned, between the directors of tin** 
South Coast Company and the directors of the Port^ 
mouth Company, respecting the proposed nulway froor 
Epsom to Leatherhead, is not within the powers of tlie 
said Companies or of the directors thereof, but ths 
the same is illegal and void, and that the Defendso 
I^eo Schuster, Edward Crowley, and George Freder 
Uotham, the Defendant fVilliam Arthur ffilkin; 
and tdso such of the Defendants Samuel Laimg, 
Ham Cash, Charles Sedgefield Crowley, John Im 
John Alx, and James IVishaw, as concurred in a 
the illegal payments in the bill mentioned out « 
fundrt of the South Coast Company, may be dec 
ivpluco the Siune with interest thereon : and tl 



l>efenclant8 Samuel Laingy Leo Schuster y William Cathj 1850. 

Choarht Sedgefield Crawley y Edward Crowley^ George ^^^^^^^ 
^Frederick Hothamy John Lawrie, John Nix, and v. 

m/bcwnes Wishawy may be decreed to replace and repay all L^ixa. 
sums, which have been or may be paid out of the funds 
€>£' Ihe South Coast Company, in pursuance of the said 
ag^reement or arrangement respecting the proposed 
ra.ilway from Epsom to Leatherhead, The bill further 
prs&ys for a sale of 2033 shares in the Portsmouth Com- 
pa^i^y, which formerly belonged to the London and 
C^^^cydon Railway Company^ and that an injunction 
may be granted to restrain the parties from carrying 
^^"t the agi-eement as to the proposed railway from 
^f>^om to Leatherheady and also from applying any of 
monies or funds of the South Coast Company in 
P'^yTnent of the 20,000/., or in payment of further calls 
^^ the 4000 shares and 677 shares in the Portsmouth 
Company ; and the bill prays for payment of costs by 
"tfeo directors of the Company, who are Defendants, and 
^^^^ farther relief. 

^0 this bill, two demurrers for multifariousness and 

^^ want of equity have been put in: one by the 

"■-^fSendants Samuel Laingy Leo Schustery William Cashy 

^^^^rles Sedgefield Crowkyy Edward Crowley, George 

^^>€ierick Hotham, John Lawriey John iVtr, James Wi^ 

"•^^o, and the South Coast Company ; and the other by 

'^tUam Arthur Wilkinson and the Portsmouth Com- 

^he bill, though in a prolix and complicated form, 

, to the effect, that, in the year 1846, there were 

*^e several railway companies known by the respec- 

^^Ve names of the London and Croydon Company, the 

^'^dem and Epsom Company, the London and Brighton 

Company, the Brightony Letoes and Hastings Company, 

Vol. XII. A a and 



1850. and the Brighton and Chichester Company, and aI«o 
g^^^^^^ another railway company^ called the Direct London and 
V. Portsmouth Company : — that 2033 shares of the Direct 

London and Portsmouth Kiulway Company had become 
vested in WilUam Arthur Wilkinson^ Bapamm Barnes^ 
and John Lawrie^ in trost for the London and Croydum 
Company : — that by an act passed in the 9 & 10 Fiet 
c. ccxxxiii., intituled ^^ An Act to consolidate and unite 
the London and Brighton and the London and Croydon 
Railway Companies^ and the undertakings belonging 
to them," it was enacted, that the several Ccnnpaiiies 
therein mentioned should be dissolved, and that the 
powers given to them should be vested in the Company 
thereby incorporated ; and that the several persons and 
corporations who, before the passing of the act, were 
proprietors of shares in the capitals or joint stock of 
the dissolved Companies, should be united into a Com- 
pany, for the purpose of working, completing, and 
maintaining the railways and works authorized to be 
made by or for the dissolved Companies, under the 
authorities vested in them ; and, for those purposes, 
should be incorporated by the name of ** The London^ 
Brighton^ and South Coast Railway ; " and the rail- 
ways and appurtenances belonging to the dissolved 
Companies, and also all monies, stock, shares, secvH 
rities and books, to which the dissolved Companies 
were entitled, were to become vested in the Company 
thereby incorporated, and the said Act contained various 
enactments respecting'the capital and stock of the Com- 
pany thereby incorporated and the shares therein. 

The Plaintiff in this cause was, imder the provisions 
of the Act, entitled to forty-eight shares in the new fx 
South Coast Company: and he afterwards pnichased 
100 other shares therein. It is not disputed by this 
bill, but that, under the provisions of the Act, the 2033 



■hares in the Direct London and PortsmoutJi Railway 1850. 
Company, which were vested m W. A. fFilkinsony 
B. Barnes^ and John Lawrie, in trust for the London 
md Croydon Company, became the property of the 
Somth Coast Company. But the bill for incorporating 
kbe South Coast Company contains no power autho- 
rising the Company, directly or indirectly, to subscribe 
for or purchase any shares in the Direct London and 
JPbrtmnouth Company, or to apply their fnnds or capital 
for any such purpose. And none of the dissolved 
Companies had any such power. 

The bill alleges, that Samuel Laing (the chairman), 
Leo Schuster (the deputy chairman), and WilUam Cash, 
Charles Sedffefield Crowley, Edward Crowley, George 
Frederich Hotham, John Lawrie, John Nix, and James 
Wtihaw were directors of the South Coast Company ; 
and that the same Samuel Laing, Charles Sedye/ield 
Crowley, Edward Crowley, George Frederich Hotham, 
John Nix, and Leo Schuster were also directors of the 
Direct London and Portsmouth Company. The bill 
then states, that before the Portsmouth Company could 
put in force their compulsory powers for taking land 
for the purposes of their railway, it was necessary, that 
n earn of 1,450,00021, the estimated expense, should be 
lobscribed for, but that no more than 1,250,000^, in- 
dnding the value of the 2033 shares which had be- 
longed to the London and Croydon Company, had been 
sabscribed for, and consequently, that further sub- 
scriptions, to the amount of 200,000/., at least, were 
required to be obtained ; but it was found impracticable 
to obtain them in the ordinary way ; and that, under 
such circumstances, the directors of the two Companies 
concurred in a scheme, for supplying, and agreed to 
supply, the deficient subscriptions wanting by the 
Portsmouth Company, out of the fxinds of the South 

A a 2 Coast 


1850« Coast Company, by means of some of the directors 
Bubscribing for shares m the PorUmouth Company in 
their own names, bnt as alleged trustees for the South 
Coast Company. And, on the 16th of October I8469 
the directors of the Portsmouth Company passed a 
resolution as follows : — '' Whereas, previously to notice 
being given for the purchase of land, it is necessary, ^ ^ 
that the signature to the parliamentary contract should -d^j 
be completed, to the extent of the estimated expense fbr^rv 
making the railway, — viz. 1,450,0002., — it is resolved 
that, with a view to complete the subscription for thi^, 
whole amount mentioned in the Act as the estimat e s ,g^^ 
sum for defraying the expenses of the undertaldn j r fc j i «^ 
and which is requisite before any of the powers for 
compulsory purchase of land can be enforced. 
South Coast 'RmlwB.j be requested to claim subscriptior — ju 
to the contract to the extent of 200,00021, as the a grf, <j > 
ment between the two parties contemplates, that a^Kij 
capital required beyond the sum of l,250,000iL shoc^/dl 
be provided for by the South Coast Company.'' 

And on the 4th of November 1846, the directors 
the South Coast Company resolved, ''that the shares 
necessary to complete the capital of the Portsmouth 
Company be issued to Mr. Schuster, Captain Hotham 
and Mr. Crowley, that the deposit be paid thereon, and 
the members of the Board be requested to sign the 
Portsmouth deed for the needful amount, and that 
2033 shares, standing in the name of Messrs. fFUkinson, 
Baines and Lawrie, be transferred to the said trustees, 
after the deed shall be fully signed in respect of such 
shares." And that, on the 10th of November 1846, it 
was resolved by the Directors of the Portsmouth 
Company, that 4000 shares, to represent the ci^taJ 
referred to in the resolution of the said 16th of Oefo 
her, should be issued to Leo Schuster, Edward CrowU 



and George F. Hotham^ as trustees for the South 1850. 

Coast Company, agreeably to the resolution of the g^[^w^ 

Board of Dbectors of that Company of the 4th of «. 

In pursuance of the arrangements expressed in these 
resolutions, the Defendants Leo Schuster, Edward 
Crowley, and George Frederick Hotham subscribed, in 
their names, for, and procured to be allotted to them, 
4000 shares in the Portsmouth Company. They executed 
the deed relating to the shares, and they and the other 
directors of the South Coast Company paid, out of the 
monies and funds of that Company, the sum of 15,00021 
for such 4000 shares in the Portsmouth Company, being 
aflter the rate of 3/. 15^. for each share; and besides, the 
2033 shares formerly standing in the names of William 
Arthur Wilkinsoji, Benjamin Baines, and John Lawrie 
were transferred into the names of Leo Schuster, Ed- 
ward Crowley, and George Frederick Hotham, in addi- 
tion to the 4000 shares ; and afterwards, with the view 
to give further assistance to the Portsmouth Company 
out of the funds of the South Coast Company, the De- 
fendants, directors of the South Coast Company, agreed 
that such further assistance should be advanced out of 
the funds of the South Coast Company ; and that the 
Defendants Leo Schuster, Edward Crowley, and George 
Frederick Hotham, or some other of the Defendants, 
should subscribe for or purchase certain additional 
shares in the Portsmouth Company, and that the de- 
posit or purchase-money for such shares should be 
paid out of the funds of the South Coast Company : 
and that accordingly, 677 additional shares in the 
Portsmouth Company were, in pursuance of such agree- 
ment of the South Coast Company, purchased by the 
said Leo Schuster, Edward Crowley, and George Frede^ 
tick Hotham, or some others of the Defendants, and 

Aa 3 the 


1850. the sum of 2538iL I5s. was paid, as purchase or depoeii 
money, out of the funds of the SatUh Cooii Company* 
The bill alleges, that these transactions wer^ and were 
known to be, illegal, and that an attempt was made 
to procure a parliamentary sanction for the same, but 
that the bill which was brought in for the purpose was 
thrown out. 

The bill then proceeds to state, that the Partsnumtk 
Company, being unable to complete their whole line, 
had resolved to abandon the greatest portion of it, and 
to complete only four miles of it, — viz. the part leading 
from Epsom to Leather kecLd ; and that, for the purpose of 
enabling them to complete even that part of it, further 
assistance was wanting, and it was agreed between the 
two Companies or their Directors, that the South Coast 
Company should, out of their funds, supply the Paris' 
mouth Company with pecuniary assistance for the pur- 
pose, and should, accordingly, pay them 20,00021 by 
way of what is called ^^ compensation for preliminary 
and parliamentary expenses ; ^ and that an application 
to parliament should be made, to authorise the Soutli 
Coast Company to purchase the four miles of railway 
from Epsom to Leatherhead for 50,000/., including the 
20,000/., which was to be paid in any event ; and that, 
in the meantime and until parliamentary authority* 
could be obtained, the South Coast Company should 
work the line intended to be purchased as if it were 
their own. 

The bill then states, at great and I think unneces- 
sary length, the proceedings in the case of dJien v. 
Wilkinson (a), a report made to a meeting of the Ports* 
mouth Company, together with an address or speech of 
Mr. Wilkinson^ a meeting of the South Coast Company, 


(a) Ante, 126. 138. 



and an explanation or speech of Mr. Laing ; all, I pro- 1850. 
siune» inserted^ for the purpose of shewing the negoti- ^T^^^^ 
aiion between the Companies^ for the purpose of com- «. 

pleting or obtaining authority for completing the 
purchase^ bj the South Coast Company, of the portion 
of the line not abandoned by the Portsmouth Com- 
pany, for 50,000^, including the 20,000/., which in 
one place is called a premium. It is then stated, that 
th« Defendants, the present Directors of the South 
CUxut Railway Company, have already paid, out of the 
funds of such Company, some portion of the 20,000/., 
ax&d intend to pay further sums to the Portsmouth 
CcMnpany on account thereof. 

Hi was argued for the demurrer, that the relief 
priayed for by this bill is divisible into two .distinct 
I&ecidfl: first, in respect of the shares of the Ports^ 
KM^stil Company purchased out of the funds of the 
9<»ic(ft Coast Company ; second, in respect of the agree- 
ment alleged to have been made for the purchase by 
^e South Coast Company from the Portsmouth Com- 
pany of the line from Epsom to Leatherhead. 

Xt was alleged, that in respect of the 2033 shares in 

*be Portsmouth Company, which became vested in the 

S^nsth Coast Company by the Amalgamation Act, the 

^fniA Coast Company became entitled to an interest 

^ the afiairs and concerns of the Portsmouth Company ; 

*^^ for the purpose of protecting that interest, were 

•'■^tiiled to enlarge it, if they thought fit, and thereby, 

* otherwise, to apply their own funds in promoting 

tae interest of the Portsmouth Company ; and it was 

Whet suggested, that the bill, not ailing that the 

pii^diaaed shares were paid for out of capital, but only 

oat oi tiie funds of the South Coast Company, those 

funds may have been such as the directors had au- 

Aa 4l thority 


1850. thoritj to apply in the manner they did ; and it was 

^^^^^^ allei^ed, that, in fact, there are various modes, in whioh 
Salomons . . . . . 

o. it might have been done, and in which, in the argu- 

Laino. ment of a demurrer, it ought to be presumed to have 

been done, without going beyond the powers of the 

Act These arguments were urged with great zeal, 

but I am of opinion that they cannot be maintained. 

A Railway Company, incorporated by act 'of parlia- 
ment, is bound to apply all the monies and property of 
the Company for the purposes directed and provided 
for by the Act (a), and for no other purpose whatever. 
When the expenses are pud, and the public purpoeei 
which are directed and provided for by the Act (and 
which were the motive or inducement for granting the 
powers given by the Act), are fuUy performed, any sur- 
plus which may remain, after setting apart a sum to 
answer contingencies, may (if not applied in enlargingi 
improving, or repairing the works) be divided among 
the shareholders. The dividend, which belongs to the 
shareholders and is divisible among them, may be ap- 
plied by them, severally, as their own property. 

But the Company itself, or the directors, or any 
number of shareholders assembled at a meeting or 
otherwise, have no right to dispose of the share of the 
general dividend which belongs to any particular share- 
holder, in any manner contrary to the will or without 
the consent or authority of that particular shareholder. 
Any application of or dealing with the capital, or 
any part of the capital, or any funds or money of 
the Company, which comes under the control or man- 
agement of the directors or governing body of the 
Company, in any manner not distinctly authorised hy 
the Act, is, in my opinion, ah illegal application oi 

dealing ; 

(a) S VicL c. 16. s, 122. 


€3eafing'; and, without meaning to say, that it is or could 1850. 

1>e practicable for individual shareholders to interfere 

<m every occasion of alleged misapplication of particular 

soins, I am of opinion, that if, as in this case, the 

directors are proceeding upon an illegal principle, and 

for purposes not authorised by the Act, to involve the 

Company or the shareholders of the Company, or any 

of them, in liabilities, to which the shareholders or any 

diareholder never consented, relief may and ought to be 

given in this Court ; and that the mere circumstance of 

the South Coast Company having obtained, as it is not 

now disputed they did lawfully obtun, a certain 

number of shares in the Portsmouth Company, is not a 

reason why the Company should be enabled or permitted 

to purchase more shares, and thereby increase the risks 

to which parliament permitted the shareholders to be 

exposed, by the shares which may have become vested 

in them by the Amalgamation Act, or why the directors 

^onld be permitted to divert as much of the fudds 

oF the Company as they think proper, or indeed any 

of those funds, for the support of another com- 

ny, having distinct objects, and meant to be applied 

purposes different from those, in consideration of 

Iiich alone their powers were granted to them. 

I am, therefore, of opinion, that the demurrers, for 
"Vv^ant of equity, must be overruled. 

But the demurrers for multifariousness remain, and, 
liaving regard to the mode in which the allegations 
are stated in this bill, I think that the grounds of 
complaint are stated as distinct matters. It was 
argued for the Plaintiff, that the agreement for the 
purchase of the line from Epsom to Leatherhead was 
but a sequence of the former transaction as to the pur- 
chase of shares ; but I have sought in vain for any 






all^tion in the bill, which, in the least degiee, omt- 
nects the transactions. I may conjectoie, and I think 
it rather difficult not to conjecture, that all the trans- 
actions are connected and form part of one design oi 
scheme ; but such scheme is not distinctly stated, anc 
I can only proceed upon that which is distinctly statedj 
which, in the great prolixity of this bill, I collect tc 
be, that there was an illegal transaction of purchadng 
shares in the Portsmouth Company, and another ilkga] 
transaction or agreement for the purchase of a nulwaj 
the property of the same Company. The two trans- 
actions are, as I think, both of them illegal, for the 
same reasons, that they alike inyolve ill^al applica- 
tions of the fnnds of the South Coast Company. But 
they are not alike, either as to the persons affected by 
them, or as to the relief which may idtimately be 
given in respect of them; and unless they are con- 
nected in a way which does not appear by this bill, I 
think relief cannot be given upon them both in 
one bill. 

Overrule the demurrers for want of equity. 

Allow the demurrers for multifariousness, with 
leave to amend the bilL 





DECBEE had been made for a foreclosure (a) ; where a 

the Master had ascertained the amount due, and mortgagee re- 
ceives rents 
liad fixed a time for payment. Between the date of between the 

report and the day appointed for payment, the j®*^^*"^^ 

»rtgagee had received two small sums of 3/. 7^. 1 l^cf. ment, it is not 

3L 7,. Hid. for r.nU '^^^ 

the accounts 

I4r- Bcupell and Mr. Selwyrif for the mortgagor, tinned and 

for a reference back to take an account of the ^^^ ^™e to be 
subsequent rents, and to fix a new day for payment. order the' 

. . forthwith to 

Th^ cited OarUck v. Jackson (i), Alden v. Foster (c), pay the ar- 

y. Griffitlu. id) --,«i;- 


3dx. Thtmer and Mr. J. H. Taylor^ for the mort- 
S^See. Bather than incur a further delay, the mort- 
S^gee is willing to verify by affidavit the amount 
''©cei'ved, and to pay it over to the Defendant. 

Ax all events, no order should be made postponing 
^^ payment, except on the condition of the immediate 
Payment of the arrears of interest and costs, {e) 

Mr. Roupell, in reply. The mortgagor is entitled to 

^^e the account continued. The delay has been oc- 

caaoned by the mortgagee himself, who, by his own 


(a) 1 1 Bcavan, 58. (d) 7 Beavan, 83. ; and see 

(A) 4 Beavan, 154-. Geldard v. Hornby^ 1 HarCy 251. 

(c) 5 Beavan, 592. (e) See Eyre v. Haiuan, 2 

Beavan, 478. 



1849. act, has altered the state of the account. This is sciot 

like the case of a mortgagee asking, bj way of incK xl» 

r. gence, an enlargement of the time, and who, as a ooq. 

Greenway. ^j^Jq^^ jg required to pay up the arrears of inteiest auid 


The Master of the Rolls. 

Rents have been received by the mortgagee, whlcb 
have not been brought into the account. I think tliat 
this prevents the foreclosure, and makes it necessaiy 
to carry on the accounts, and to appoint another daj 
for payment. 

The only question is upon what terms the time is to 
be enlarged ; and, as I am not satisfied that when the 
account has been altered by the mortgagee himself, it 
is the practice to order the immediate payment of the 
arrears of interest and costs, I must simply direct the 
Master to continue the accounts and appoint a new 
day, not exceeding three months, for payment, and to 
add the costs of the application (a). 

(a) Reg. Lib. 1849 A. fol.i34. 

Note. — Where rents are received between the report and *** 
day of payment, the impossibility of obtaining the 6nal order forf**^ 
closure is usually discovered, upon the mortgagee being require^ ^ 
make the usual affidavit, that the amount was not paid at tbe ^-^^ 
and place appointed, " but that the said sum still remains due wM **' 
satisfied ;" see 2 iVVii;/. Pr, 307. (3d ed.) 



RUDGE V. WINNALL. ^^^^g?' ^^' 

Dec. 22. 

PHE testator devised a real estate called Prior* s Devise of real 

^ Courty which was in hb occupation at his deaths estate m the 

,^^ , occupation of 

> two trusteesy who were also his executors, in trust the testator, 
r John Barrett for life, with remainders over ; and he 'JJ ^l^J^^fj ^^ 
msed other real estates in trust for other parties. bequest of all 

live and dead 
stock, and all 

He also bequeathed to the same trustees and execu- personal 

---,,. Til 11 iii/« . estate to B, 

m *' aU his live and dead stock, household furniture Held, that 

id effects, and all his personal estate whatsoever and ^^^ ^"^^^^lu 

'• ments on tne 

heresoever," upon trust to sell &c. real estate 

passed to B, 
A testator. 

He bequeathed 12,0002. sterling, and the residue of standing in 

I . • loco parentitf 

9 personal estate, to the executors, upon trust to invest gave to tnis- 

e same, and pay 4000/., part thereof, to his grandson, '^j^SJj^*^^ 

ones Barrett, ^' on his attaining the age of twentj-one trust to pay 

ars;" and the sum of 2000/., other part thereof, to '*^?.^^-. 

' ^ ^ '^ on his attain- 

I granddaughter, Louisa Barrett, on her attuning ing twenty-, 
enty-one years, or marrymg under that age. And in ZhorMi 
se only one of them should live to attain the age of them to raise 
enty-one years or marry, as aforesaid, then the said gag^ofhis 
m of 6000/. was to be in trust for such one grand- ^^\ estatw ; 

^ and out of the 

lid. monies there- 

by bequeath- 
ed, to raise 

He declared the trusts of the other 6000/. and of the such sum, not 
ndue of his personal estate in favour of other parties. fnterest"at 4^ 

per cent, of 
fpj the expectant 
•1"® portion, as to 
them should 
em sufficient for maintenance : Held, that the legatee, during minority, was 
titled to maintenance only, and not to the whole amount of interest on the 


1849. The testator authorised and empowered his tmsteesy^ 

^T^^^^ within twelve months after his decease, to raise the^ 

RUDGB /. , . 1 

V. 12,000/. by mortgage of his real estates. 

Winn ALL. 

He declared that it should be lawful for the trustee^ 
out of the trust monies thereby bequeathed, to ley^^ 
and raise, for the maintenance and education of 16 
grandchildren, ^^ for whom he intended to provide 
portion or portions as aforesaid;" in the mean 
and until his and their portion or respective portii 
should become payable, such yearly sum and su. 
of money, not exceeding what the interest of the 
pectant portion or portions, intended to be ther^'l^ 
provided for such child or children respectively, wouif 
amount to, after the rate of 4/. per cent, per annum, m 
to the said trustees should seem suffident," and to be 
raised and paid in such manner and at such times as 
to the trustees should seem meet 

The testator also authorised them to raise any sonc^ 
for their advancement or preferment 

After the testator's death, the emblements on the 
Prior's Court estate at the testator's death, consisdng 
of crops of wheat, turnips, and vetches unsevered, were 
sold, and produced 210/. 5^. 

It also appeared, that the testator, in his life, stood 
in loco parentis towards the two grandchildren, their 
father being dead. 

Two questions arose, first, whether the emblements 
belonged to the devisee of the estate, or to the legatee 
of the personalty ? 



Seoondlj, whether the grandchildren were entitled 1849. 

to the full amount of 4 per cent, on their portion, or ^"^jy"^*^ 

onlj to that portion of it, which had been applied by * v. 

the truBtees towards their maintenance and education? Wimmall, 

Mr. jRoupell and Mr. Ehisleyy for parties interested 

m the personal estate, contended, that the emblements 

formed part of the personal estate. In Cox v. God» 

itthe (a\ where the testator devised a fiurm in one waj, 

and gave his goods and chattels, stock of his farm, and 

jJl other his moveables whatsoever in another way ; 

It was held, that the emblements on the farm passed 

i^ith the personal estate, and not to the devisee. So 

in ffest V. Moore {b\ a testator bequeathed the stock 

on his farm &c., and all other his personal estate of 

^wHst nature or kind soever; it was held, that the 

Bta^nding crops went with the personal estate, and not 

the devisee of the farm. That here, there was a 

nest of the whole personal estate, which Sir John 

h thought was necessary to entitle the l^atee 

the devisee ; Vaisey v. Reynolds, (c) 

Seoondly, that the testator only intended the grand- 
^*^ildren to have sufficient for their maintenance, until 
^2^^ir l^acies became payable ; and the gift, which con- 
only in the direction to pay on attaining twenty- 
did not vest until that time. 

^M[r. Walpole and Mr. E. L. Pemberton for the two 
^^^^^dchildren. Where a father or a party in loco parentis 
R^'Vee a l^acy to a child, whether vested or not, it carries 
^^t^erest from the death ; Mole v. Mole (d). Chambers v. 


(a) 6 Eatif 604. note (d). (c) 5 Run. 12. 

(&) 8 EaU, 339. (d) 1 Dickent, 310. 





Goldwm (a)f Boddy y. Dawes (b). It will be nid, 
that, in this case, the testator has made another {mmmm 
for the muntenance, and that therefore the rale 
not apply as in Dofiovan v. Needham (c) ; bnt here th 
provision is made not out of other funds, but out oft^. 
the interest. The distinction is pointed at bj th^ 
Court in Wynchv. Wynch(d)f where the Court aaii 
^'If it had been payable out of the interest of 
legacies, I should have thought the daughters end 
to what they claim." 

Here, though the trust to raise is in form disc^^^^ 
tionary, yet it was incumbent on the trustees to exec^K.^/^ 
their power for the benefit of the legatees, as in Brc^m^jg 
Y. Higgs {e) : 2 Sugden on Powergy 175. Again : the fL^i7(/ 
must be considered severed, and there is no gUt oveir; 

Mr. Bowyer argued, that the testator, having made 
a provision for the maintenance of the grand-childreift ^ 
excluded the implied gift of interest That thec" "^ 
was no absolute direction to nuse the 12,000/., bat 
discretionary power only, and that the amount 
maintenance was also to be linuted by the discretion 
the trustees. 

Mr. Turner and Mr. Hetherington, for the devisee 
of the real estate, argued, that the words *' live and 
dead stock" were insufficient to deprive the devisee 
of the crops growing on the estate at the testator^f 
death ; and, secondly, that the grand-children wer 
only entitled to a sufficient sum for their miuntenano 
and not to the amount of interest not so employed. 


(a) 11 Vei. 1. 
\b) 1 Keen, 362. 
(c) 9 Beavan, 1C4. 

(d) I Cor, 433. 

(e) 8 Vet. 574. 



The Ma8T£b of the Bolls declared, that the em- 
Uements or crops growing, at the time of the testator's 
death, on such port of his real estates as were then in 
his own occupation, formed port of the personal estate 
of the testator. 



And that James Barrett^ in respect of his presump-> 
tive interest in the sum of 4000^, was entitled to 
maintenance and education only, until he obtained a 
Vested interest. 

In re SCOTT. 
Ex parte BARTON. 

Jan, 25. 

Hj^HE 41 6. 3. c . 90. s. 6. enacts, that where a de- 
''- cree for payment of money is made in the Chan- 
cery of Ireland^ it may be exemplified and certified to 
the Chancery in England, <^ and the Lord Chancellor, 
Lord Keeper, or Lords Commissioners for the custody of 
the Great Seal of England shall, forthwith, cause such 
order or decree " " to be enrolled in the rolls of the High 
Conrt of Chancery in England^ and shall cause process 
Off attachment and committal to issue against the per- 
^€M, of the party, against whom such order or decree 
iliall have been made, respectively, in order to enforce 
>l>edience to and performance of the same, as fully and 
^tfectually, to all intents and purposes, as if such order 
>¥ decree had been originally pronounced in the said 
C^ourt of Chancery in England,^ 

Whether the 
Master of the 
Rolls has 
to enforce the 
orders of the 
sioners for the 
sale ofincum« 
bcred estates 
in Ireland? 

Vol. XIL 




1850. And, by the 12 & 13 Vict c. 11. (a), « every Wier 

•^r^Y^^-' made by the Commissioners [for the sale of the lucmtir 
In re Scott. •' l 

bered estates in Ireland]^ a copy whereof sh^ll bcf oefv 
tified, under their seal, to the High Court of Chancery 
in Englandy may be enrolled in the like manner, 
enforced by the like process, as an order for paymeni^;;^^ 
or for accounting for money made by the High' C6urt^-^ 
of Chancery in Ireland'*^ under the 41 G. 3. c. 90. 

By an order of the Commissioners for the sale ^ ^^ 
Incumbered Estates in Ireland^ dated the dth of 2^^;^^ 
cemher 1849, it was ordered, that Francis Blake {yT^ — \^ 
was resident in London) should, within ten days af"^ -jg^ 
service of that order upon him, lodge in the offic^^ q{ 
the secretary of the Commissioners the four freeW^^Jj 
leases, bearing date respectively the 1st of May Ifl^ ^4^ 
executed by the Marquis of Donegal to Sir Ar^^ur 
Chichester. The order was certified to the Lord Ck^^. 
cellor of Great Britain. 

On the 15th oi January 1850, it was ordered by tie 
Lord Chancellor of Great Britain, ^^ that the order of 
the Commissioners under the 12 & 13 Vict c. 77., a&A 
certified by their seal, should be enrolled in the rdl^ 
of this Court" 

Mr. Turner and Mr. Goren now moved that Fratia^ 
Blake might be ordered, within twelve days after serviof 
of the order to be made herein, to lodge in the offio 
of the secretary to the Commissioners for the 8ale« 
Incumbered Estates in Ireland the four freehold lear 
hold leases, bearing date respectively the Ist day 
May 1824, executed by the Marquis of Donegal to 
said Sir Arthur Chichester. 

(a) Sect. 14. 


Z%tf MaSi:br of the Bolls having doubted, whether 1850. 
he had jurisdiction under the Act to make the order, j^^gl™ 
the matter was, bj consent, transferred to the Lord 


Dec. 10. 

F^H^HIS case, reported anti (a), on another point, Jan. 31. 

— *- now came on upon the question : — iBnom what time ^7 conditions 

,111 *> of sale, mter- 

xzx'fcerest was payable on the purchase money r est was pay- 

able from 

^The sale took place by auction on the 24th of July l846,ir/'firom 

I, and Higinbotham became the purchaser. wliatew^" 

the purchase 

Sy the conditions of sale, the purchaser was to get \^ ^\^^^ ^ooj. 

report confirmed before the 8th of August^ and in pleted. The 
^M ^ t y 1 1 iM t 1 vendors did 

cteriault, the vendor was to be at bberty to do so at the not make out 
puxx^haser^s expense. The purchaser was to pay hitf ^''^ *Ij!® , 

money into Court before the 12th o{ Novem- 1849: Held, 
1846, and to be let into possession as from the 29th ^^'pa!^^ 
^September 1846 ; " but in the event of the purchase only from the 
being completed, Jram any cause whatever, and the tioned period, 
money not paid before the 12th o{ November 
*^46, the purchaser was to pay interest on his pur- 
money," at 5 per cent, from the 12th o{ Novem- 
until payment. 

- In consequence of the purchaser's de&ult, the 
Plaintiff, on the 20th of April 1847, obtained an order 
^^ c^mfirm absolutely the Master's report of the best 


(a) Page 260 _.^ 

Bb 2 


1849. In June 1847, on an application by the Plaintifl^^^ £P 

Ir^^^^ to have the purchase money paid into Court, a « 

V. ference was made to the Master to inquire whisthe 


a good title could be made. 

The Master reported that a good title could 
made, and his report was confirmed on the 8th 
March 1849. 




The question was, whether the purchaser was lia^^^jj 
to pay interest from the 12th of November 1846, q^ 
from what other time. 

Mr. Martindale, for the Plaintiff, asked that tie 
purchaser should be ordered to pay interest on hia 
purchase-money from the 12th o( November 1846. H^- 
argued that the case had been expressly provided fo 
by the conditions of sale. The purchaser was to 
the rents from the 29th of September 1846 ; and in the ^[^4 
event of the purchase not being completed, ^^ from any ^^ 
cause whatever,^ and the purchase-money paid before 
the 12th o{ November 1846, the purchaser, on his part, 
was to pay interest from the 12th of November 1846. 
He argued also, that the vendors had not been guilty 
of any negligence, and that the delay had proceeded 
from the conduct of the purchaser, who had also op- 
posed the payment of the purchase-money into Court. 
He cited Robertson v. Shelton. (a) 

Mr. Steere, contra. The delay has been occasion 
by the vendors not delivering a proper abstract, and b 
their not making out their title to the propertyt Thej^ ^ 
cannot take advantage of their own wtong, for th^c=3& 
purpose of charging the purchaser with interest. Su e i 

(a) 10 Beavan, 197. 



general terms as ''from anj cause whatever " do not 1849. 
extend to a case, where the cause has arisen from the p^*^^"^""^ 


TTcndor's own default. 

Whatever might have been the rule formerly (a), it 
now been settled by Lord Cottenham, in a pre- 
cisely similar case of De Visme v. De Visme (b), that a 
Trendor^ under such a condition of sale, is entitled to 
interest from the time a good title is shewn only. 

Mr. Martindaley in reply. 

TTie Master of the Bolls said he would look at the 
SLuthority last cited before deciding. 

The Master o/'/Atf Rolls. 

The vendor asks for interest from the 12 th of iVc^- 
^y^^nber 1846, at which time it was contemplated that 
purchase would be completed. On the other hand, 
purchaser resists this, because the vendor did not 
sw a good title until March 1849, and he produces 
case of De Visme v. De Visme^ in which the Lord 
Chancellor seems to have held, that if the delay in 
^^>rqpleting arises from the vendor's not making out 
*^i^ title, the purchaser is, under such a condition of 
l^c, only liable to interest from the time a good title 


Jan. 31. 

Such being the present rule of the Court, I am of 
opinion, that the vendor is not entitled to interest from 
^^e 12th of November 1846, but only from the confirm- 
^tion of the report. 

C^) EsdaUe v. Stephenton^ 1 
^»». * St. 122. 


(h) 1 HaU 4- Tw. 408. and 
1 Mac, <J- Gor. 336. 

Bb 3 




Feb. 7. 25. 


An order for 
cannot be 
made against 
an executor 
upon admis- 
sions in his 

A DEFENDANT had admitted the posseadon <^ 
.^^^ certain doouments, and had been ordered to pro- 
duce them. Before production he died^ and a aimple 
bill of revivor being filed against his executor^ the suit 
was revived. 

Mr. James Anderson now moved for productioi 
against the executor. 

The Master of the Rolls. 

You must obtain the executor's admission of the 
session before I can make such an order. 

Jan. 14. 


By a deed of TN 1834, the Norwich Yarn Joint Stock Company 
ajoinTstock ^^ established, with a capital of 30,006i divider 


company, exe- into 300 shares (a\ nearly the whole of which 
cutors were 

not to be been paid up. 

Held, never- 
theless, that The Company was regulated by a deed of 8ettl( 

coStributories, "*®°*' ^°® ^^ *^® articles of which provided, 

and might executor^^'^-^^ 

maintain a 

petition to (f) ^^ Harvey v. Bignold, 8 Beavan, 343. 

wind up. 

Where a company is insolvent, and has been getting worse, i^is no answer to 
application to wind it up to say, that the difficulties are temporary, and that th< 
is hope of more prosperous times. *** ' 



ixeoutors of deceased proprietors should not be pro- 
ffietom of the testator's shares^ or entitled to receive 
117 dividends^ but the same should remain in sus- 
iende until some persons should become proprietors 
f Buch shares. Provision was however made for the 
xecutors to become proprietors in the manner therein 
ointed out> or to sell and transfer the shares with the 
onsent of the Directors. 



In re the 


The business was carried on at a loss, and in June 

846 the deficiencies of the assets of the Company 

mounted to 10,000/. In 1848, "a heavy loss" was 

sported, and the dissolution of the Company recom- 

lended. In letters written by a Mr. Stewart in 1849, 

s was represented that the loss approximated to 

•OyOOOiL, although the working profits of the year 

mounted to 1700iL ; but this was without charging 

aterest on the heavy debts. 

* . 
Mr. Harvey was a proprietor of ten shares. He died 

n 1842, and the two Petitioners were his executors. 
rhey sold the shares in 1842, but the Directors re- 
fused to ratify and confirm the transfer, on the ground 
of the circumstances of the proposed transferees. 

The executors now presented a petition under the 
i¥inding-up Acts (a), for the dissolution of the Com- 
mny, and the winding up of the concern. 

Mr. Roupell and Mr. JF. Younffe, in support of the 

Mr. JR. Palmer^ for Mr. Cousins^ a shareholder, op- 

K)8ed the petition, contending, first, that the Fcti- 

ioners as executors, were not, by the pcovisions of tlie 

(fl) 1 1 & 12 Vicl. c. 45. ami 1 :i & 13 Vid, c. IDS. 

Bb 4 



In re the 



deed, proprietors, or entitled to any share in the profits ; 
and that it did not appear that the concern was insol- 
vent at the testator's death, which was necessary to 
make his executors liable ; secondly, that there was 
no sufficient evidence, that the state of the Company 
was such, as to bring the case within the Act, for 
the information relied on was a mere statement in 
the correspondence of Stewart^ who was not an officer 
of the Company, and no actions had either been brought 
or been threatened against the Company or propri- 
etors ; and, lastly, that though the concern had been a 
losing one during a temporary depression in trade, 
still that it was improving, and might yet turn out 

Mr. Turner for the Directors. 

Mr. Boupelly in reply, cited Thomases Case(a)f U^ 
shew that the executors were to be deemed contributories 
within the Act. 

The Masteb of the Rolls. 

This petition prays that the Company may be dis- 
solved, and wound up under the recent statute. 

Several objections have been made to this : first* 
it is said, that it has not been proved that the Peti- 
tioners are under any liability to pay : but I think 
that they are clearly interested, and may be caUed 
on to contribute or pay. This, therefore, is no 
sufficient objection to this petition. Secondly, it is 
said, that the Petitioners are not entitled to the profits. 
It is not material, whether they are or not^ if, by the 
Act, they arc to be deemed contributories. 


(ft) 1 De Gcx 4- Smale, 579. 



The next objection is, that the evidence consists in 
part of letters written by Stewart^ who is not an officer 
of the Company. It is true that he has given in- 
formation, which cannot be considered official inform- 
ation from the Norwich Yarn Company ; but he has 
stated facts, which the Directors have stated at the 
public meeting of the Company, and I think this ob-* 
Jection cannot prevaiL 

Next it is said, there has been no account duly 
audited^ shewing the state of the aifairs of the Com« 
pan J. It is alleged in the affidavit that there is such 
a provision in the deed ; but it is not stated that it has 
jiot been acted on. 


In re the 


The question now to be considered is this : whether 
le circumstances of the Company are such as to 
a dissolution proper. Though I think that the 
petition does not state the facts as distinctly as it 
L^ht, still I am of opinion that it states enough to 
iw that the order ought to be made. 

7he concern is insolvent, and has been daily getting 

"^^oise and worse. Is it auy auswer to say that the 

ompany is in circumstances of temporary difficulty^ 

that there is every hope for more prosperous 

lcs? Some of the parties may fairly imagine so; 

that is no reason why an insolvent concern getting 

Ly worse and worse should be allowed to go on, 

I^^^^eibly to the ruin of all parties concerned in it. 

think on the whole that the order should be made 



July 20, 

A testator 
held long 
some as ori- 
ginal lessee 
and others as 
They were 
sold in the 
suit. Held, 
that the exe- 
cutors were 
entitled to be 
agunst the 
breaches of 
the covenants, 
either by a 
retainer in 
Court of a 
part of the 
assets, or by 
a security of 
the l^tees to 

A reference 
was, in such 
case, made to 
the Master, 
to ascertain 
what liabilities 
the estate 
might be sub- 
ject to, in 
respect of the 
covenants, and 
what amount 
ought to be 
set apart, 
with liberty 
to the legatees 
to propose 
a proper 


^THHE testator, Thomas Carpentery was the original 
•^ lessee of certain premises tinder several leases^ 
one of which was made in 1804, for a term of seventy- 
fiye years, and the testator thereby covenanted for 
himself, his heirs, executors, &c to pay the rent, to 
repair, to insure, and not to carry on certain offensive 
trades upon the premises. The other leases were dmilar, 
and it is unnecessary further to advert to them. 

The testator possessed other leaseholds of which h< 
was a mere assignee. 

By his will, the testator bequeathed certain annuities,^ 
and disposed of his residue. He died in 1830, and 
will was proved by Dobson and Fisher. 

Under an order of the Court, all the leaseholds 
been sold for 6803/., and conveyed to the purchasers 
who entered into the usual covenants to indemnify. B 
the order on further directions, the right of the resi- 
duary legatees was declared : — certain funds 
carried over to separate accounts, to answer the seve 
annuities ; and the residuary estate had been, as far as 
hitherto practicable, divided. 

By the death of two of the annuitants, two 
of lOOOZ. and 333/. stock had now become -reli 


A petition was presented by some of the residu 
legatees to have these sums divided amongst the 


dnarjr legatees ; and a oroeB petition was presented by 1850. 
the executors^ stating, tiiat, on the previous diyisions ^"^T*^^^*^ 
of the testator's readuary estate^ their attention had «. 

not been caDed to their liability under the covenants ^arpbntbb. 
contained in the several leases and assignments; but 
that they were now advised and believed, that they 
were liable for tiie rent and performance of the cove- 
nants reserved and contained in the several leases. 

That fiom the dass of houses held under some of the 
and the persons by whom the same were pur- 
> there was danger tiiat the covenants would be 
bxrokeo, and that the residuary legatees (with one or 
exceptions) were in poor circumstances, and that 
of them had sold or incumbered their shares in 
residue. The cross petition prayed, that a proper 
of the money now released might be set apart and 
cumulated towards the creation of a fund, for the 
of indenmifying the executors, their heirs, &c. 
im all damages for any breaches of the covenants in 
'tJ:^^ leases. 

^ir. Turner and Mr. G. L. Bussell, for the executors. 
e testator being the original lessee, his estate will 
liable to the covenants until the expiration of 
leases, and the executors are therefore entitled to 
a sufficient sum retained to answer any eventual 
under these onerous covenants. The Court has 
n^ver refused to retain a sufficient fund to answer con* 
tangent liabilities, though not ripened into debts.- In 
^kteher v. Stevenson (a), the Court retained the interest 
as Well as principal of the residuary estate, to answer 
^7 possible demands under similar covenants of a tes- 

(a) 3 Hare, 360. 


1850. tator, until the extent of the liability could be asoer- 
^^~^^^^ tained, or security given to refiind if required. 

Caspentbr. Mr. Walpole, for some of the residuary legatees, did 
not object to give an indemnity, but contended, that 
there was no case like the present in which the Court 
retained the fund, the rule being merely to give an in- 

Thus, in Nector v. Gennet{a\ the only question was, 
whether the legatee was to be left to give a secmity 
to refund, in case of the executors becoming after- 
wards liable to be sued on the testator's bond. In 
Hawkins v. Day (6), it is said (c), '^ In the case of con- 


tingent debts in trade, if there is a prospect of damni 
fication, the Court will direct the Master to consideor^st 
what part of the assets are proper to be set aside tcc^^^to 
indemnify an executor. In covenants in kases and pur^^^^K'^ar* 
chases of remote expectation, the Court will not do it^ «»^*t 
In Simmons v. Bolland (d) no part of the funds w ei^ .m^^ x^ 
retained, though the answer insisted on such a right ^^mii 
but it was ordered to be paid over to the Plaintiff, ok^^:^ on 
his giving a sufficient indemnity to the executors^ th»M^«he 
terms of such indemnity to be settled by the MasteoK'-^^er. 
In Vernon v. The Earl of Egmont{e) the House ac^ of 
Lords declared, that before the residue should be pai».£-^aud 
to the Earl, he ought either to confirm the leases whicT^^ 'ch 
created the contingent liability of the testator's estat^^^i^-te, 
or " otherwise give a satisfactory indemnity to the A py -ap- 
pellants," the executors. In Fletcher v. Stevenson (&^ ^ Of) 
the^widow was held to be entitled, if she could gh^l^ivs 
security to refund. In Cochrane v. Robinson (A) ttJT^rlie 

(a) Cro. Elk. (466.), and (rf) 3 Mer. 54,1. 
cited 3 Mer. 6b2. (e) 1 Blu (N. S.) 554. 

(b) Ambler, 160. and 803., fe) 3 Hare, 360. 
BlunVt ed. (ft) 1 1 SimonM, 378. 

(c) Ambler y page 801. 


Chancellor of England decided that the executor 1850. 
ntitled to be indemnified^ and it was referred to ^OMOfT 

[aster to approve of an indemnity. «. 


9 only case of retainer of funds was in the Queens'^ 
Case (a); but there '' the claims had been actually 
and the money was in Court (i)." 

8 executors will be fully protected if the Court 
8 the payment, and all that they are entitled to is, 
rence to the Master to settle an indemnity. Pear^ 
Arehdeahen (c) was also cited. 

*• Baupell and Mr. Bird, for another residuary 
se, did not object to a reference to the Master 
\r to that in Simmons y. Bolland and Cochrane v. 
isoHf viz. to approve of an indemnity. They also 
d that there was now a fund of 12,000/. in Court, 
I was an indemnity amply sufficient. 

% Bell, in the same interest. Some of the leases 
not expire until 1922, and the effect of granting 
rayer of the petition will be to confiscate the in- 
b of the residuary legatees, for none can possibly 
re that period. 

r. Lhyd, for another legatee. To retain the fund 
1 be to establish the most grievous perpetuity 
»Ie. The executors have allowed portions of the 
to be divided, and have by their acquiescence de- 
d themselves of all right to require any security 


Cited 1 BU. (iST. S,) 568., (b) 1 BU. (iV; S.), p. 571. or- 

epoited on another point guendo, 
f Thomoi V. Montgomery^ (c) 1 Alcock 4r Napier, 2S. 
u 4* Myl. 729. 






beyond the covenants of the persons to whom they 
have assigned their interest. 

Mr. Bealesj for an incumbrancer, cited ShadboU v. 
Woodfall{a)y in which Vice-Chancellor Knight Bruce 
decided, that where an executor had assented to a 
specific bequest of leaseholds, he had no right to an 

Mr. Baggallay and Mr. Nevinson argued, that th 
executors were bound by their assent on two 
divisions in 1846 and 1848. 

Mr. Turner, in reply. At law, the executore woiil< 
be liable to the lessors, if they paid over the assets t 
the residuary legatees. WiUtams an Executors, 1 159. {h)f^ 
Davis V. BlachweU (c), and such a payment would 
bad even in equity ; Norman v. Baldry (d), Knatchbult^ 
V. Fearnhead (e). 

The decree of the Court would be no indemni 
against actions brought by persons whose claims hav 
not ripened into debts ; for the decree is only in favouKT 
of persons having actual debts (^), and persona not" 
coming within that class would not be bound by an; 
thing done in the suit. 

If the legatees could give a perfect indemnity, tb> 
executors could not retain the fund ; but here they 
in poor circumstances, and many of them have assign 
their interests, so that a bond of indemnity w 
afford no protection to the executors. 

(a) 2 CoUyer^ 30. 
(6) 4th ed. 
(c) 9 J9mg. 5. 

\e) 3 MyL 4- Cr. 129. 
(g) SeCiSptofiofilVcrvcff, 



Tlie Masteb of the Rolls. 

I can have no doubt that it is the bonnden duty of 
e Court to protect the executors against all out- 
inding claims. Here there is a contingent claim 
liich the executors may possibly be called on to 
swer at some future time. It is the duty of the 
mrt to protect them against it^ and they ought to 
protected out of the assets of the testator. The 
ratees may thereby be disappointed, and one can- 
t help feeling the great hardship; but still, if the 
^tees are not entitled to the benefit of the bequest 
itil all the demands against the estate have been pro- 
led for, what right have they to complain ? 

I certainly think, that if security could be given, 
would be extremely desirable to accept it; and I 
ofess it seems to me, that it has been so much the 
ual practice to do this, and it has been so frequently 
»ne without any opposition, that it is a surprise to 
kve it brought into question. 

There ought to be a reference to the Master, to as- 
irtidn what liabilities the testator's estate is subject to 
ith respect to the covenants in the leases, and what 
ould be a proper sum to set apart by way of security 
id indemnity, with liberty to any of the parties 
ititled, to give security for their share of the money. 
r that can be done, I should be disposed to sanction it ; 
ut it is impossible for the Court to distribute the 
md with chance of the executors being called on to 
ay the claims of the lessors out of their own pocket : 
could not venture to overturn the settled authorities. 





The case was afterwards mentioned on the form of 
lie order, and ultimately, the Court referred to the 






Master to iDquire, *< wbat liabilities the estate of the 
testator was and might be subject to, in respect of the 
rents and covenants reserved by and contained in the 
several leases." And to inquire ''what would be a 
proper amount of Bank 3 per cent, annuities to be set 
apart out of the assets of the testator's estate then 
divisible, or which might thereafter become divisible, 
for the indemnity of the executors against such lia- 
bilities. And any of the parties were to be at libert 
to propose before the Master to give security for th 
retransfer into Court of the amount of their shar 
of the Bank annuities, which the Master should fin 
ought to be set apart for such indenmity, in case th 
Court should think fit to order such shares to be 
ferred to them on such security being given." 

The Master reported that 10002L was a proper suok 
to set apart. 


Jufy 20. ^^^ Court confirmed the report, and ordered 1000 

stock to be carried over to an account, entitled *' 
fund for the indemnity of the executors and other 
presentatives of the testator Thomas Carpenter,^ ax 



SALOMONS, on behalf &c., v. L AING. March ^ 5. 8. 

j^HE bill in this cause having been found defective The Directors 
-*- for multifariousness (a), the Plaintiff amended it, Joro°^*"]^7. 
ftj striking out the second transaction complained of. way Company 
The substance of the statements in the present bill funas^toVn* 

TUS as follows : — other Railway 

Company, lor 

The South Coast Company (i) became, under tlieir ^^olly unau- 

1 • * / x . 1 /. 11 1 n thorised; and 

unalgamating Act (c), rightfully possessed of 2033 the latter re« 
shares in the Portsmouth Railway Company (i) (an reived them 
adependent undertaking), but no power was given ledge of the 

:o them of increasing their stake in that Company. ^l^^^ ^HM 

on demurrer. 

The bill alleged, that some of the Defendants were ^ond company 
lirectors of both Companies, and that there being a ^^re properly 
leficiency in the subscription of the Portsmouth Com- to a suit to 
[)any, necessary to enable them to put in force their *^.""? ^^.*^^ . 

, 11. n y r^ the fund; and, 

sompuisory powers, the directors of the two Com- secondly, that, 
panics, in order to complete the subscribed capital, '"^"^jy^/'^*^' 
entered into an arrangement, whereby the South Coast shareholder in 
Company took 4677 additional shares in the Ports- pin^roS"'" 
moutli Company, in the names of three trustees, and sue the se- 
piud, out of the funds of the South Coast Company, the u ^^ behait" 
sum of 24,544/., for deposits and calls thereon. ^J^- without 

*" alleging that 

the corpora- 

The bill insisted, that this transaction was illegal, tion of which 

, he was a 

and that its illegality was known to the directors of member had 
both Companies. It charged, tliat tlie aforesaid sum ^^^^^ ^^ 


fa) See ante, 338. (c) 9 & 10 VicU c. cclxxxiii. 

(b) The short title of the se- 
veral companies is used throu<;h- 
out the report. 

Vol. XII. C r 



1850. of 24,544/. 5s. was illegally paid in respect of the said 
4677 shares out of the capital and funds of the SomA 
V, Coast Railway Company to the Portsmouth Railway 

Laing. Company ; and that the last-named Company rec^ved 
such monies, with full notice and knowledge that the 
same were being so paid to them illegally and by a 
breach of trust ; and that the Portsmouth Railway 
Company concurred and assisted in such breach o 
trust It submitted, that the Portsmouth Company 
were liable to repay and replace the money, and i 
charged also, that they 'were about to make further 
on the shares in question. 

The bill was filed by Salomons on behalf of himseli 
and all other shareholders in the South Coast Company 
against the two Companies and the directors. The bi 
prayed a declaration, that the transaction was no^z=:^i^iOt 
within the powers of the South Coast Company : — lliii ^ it 

the trustees should be considered as having sul 
for the additional shares on their own account : — that 
account might be taken of the sums so ill^ally pai( 
and that the directors and the Portsmouth Comi 
might repay and replace the amount with interest. 

To this bill the Portsmouth Company 
generally ; but the cause assigned was, that the F 
tiff, as an individual member of the Company, was n 
entitled to sue in respect of wrongs and injuries 
to the corporation. 

Mr. Malins and Mr. W. J. Bodily in support of 
demurrer. The Plaintiff, an individual member a 
corporate Company, is incapable of suing third 
ties, in respect of injuries done to the corporatii 
The Company alone have the right and duty to 
in respect of such matters. K a person wrongfiLX^^ 



k away a carriage or locomotive engine belonging to 
ompany, none but the Company could maintain an 
on of trover to recover it back ; so, in respect of 
' equitable claim, the Company alone can sue, to have 
fimd restored wrongfully applied by the Directors. 

The inconvenience of a contrary rule is obvious, 
then every member might take on himself to in- 
ute a suit of his own for the same matter, and the 
aber of suits for the same object could only be 
ited by the number of the members in the Com- 
Lj. In an ordinary partnership, one partner cannot 
I third parties in respect of partnership rights ; so the 
leral rule is, that a legatee cannot sue a debtor 
the estate, except in a very special case ; Lancaster 
Evars (a). Here the principle is the same, and there 
no statement of any loss having as yet occurred, or 
r allegation of the insolvency of the Directors. 




The Plaintiff must, at all events, shew, that the 
mpany have refused to sue, or that there is some 
ktacle which prevents the corporation obtaining relief 
the ordinary mode. Foss v. Harbottle (b)j Preston 
The Grand Collier Dock Company {c)^ Mozley v. 
fton(d)y Lord v. The Copper Miners^ Company {e), 
\ reason is stated, why relief could not be had against 
! Directors alone, without making an independent 
apany parties to the litigation. 

Mr. Turner and Mr. Cole, for the Plaintiff. The 
lity relied on by the bill is simply this, that a sum of 
»544/. 5^., being trust monies placed in the hands 


(a) 4 Beavatif 158. 

(b) 2 Hare, 461. ^90. 

(c) 1 1 Sim. 327. 

(d) 1 PhiU. 790. 
(0 1 Hall 4- Tw. 85. and 
2 Phi//. 740. 

Cc 2 







of the Directors of the South Coast Compaaj for 
a particalar purpose, has illegallv and in breach of 
tnist been handed over to another Company, to be 
employed by them, for a purpose totally different and 
unwarranted by the act, and that the latter Company 
received the amount witb full knowledge of the breach 
of trust thereby committed. That being the fact ad- 
mitted upon this demurrer, the principle applicable to 
such a case is clearly settled, viz. : — that every per- 
son receiving trust money in breach of trust, and with 
notice, is responsible for it equally with the trustees: 
Wibon V. Moore (a). All are principals, for there is n 
such thing as a secondary liability in cases of 
of trust. It would be useless to have two suits fo 
the same purpose, involving a double expense, and th 
trouble of proving the same case twice over. 


As to the right of a shareholder to sue In such r 
case, that has been established in at least five 
The principle laid down in Foss v. Harbottle, Mozle^ 
V. Alston^ and Lord v. The Copper Miners^ Company 
this : — Thei'e are many minor matters, as matters 
internal management, in which a majority of partn 
can bind the majority ; Const v. Harris (b) ; and 
which, in a company, a general meeting may decid 
In relation to such matters, an individual mem 
cannot sue on behalf of the Company ; for otherwise t 
right of the majority would be destroyed ; but in 
where Directors are acting ultra vireSy where no m 
jority can bind, and where the transaction cannot 
confinncd at a general meeting as against one sing! 
dissentient, there, an individual member may sue 

behal — 

(a) 1 uWy/, 4- K. 126. 337. 
359.; and see Fy/er v. F^ier^ 
3 Beav., 550. The Attorney'- 

General v. The 
Leicester^ 7 Beav^ 176. 
(b) Turn. ^ Rums. 490. 





half, &C. Such were the cases oiNatusch v. Irving (a\ 
jhnan v. TTie Eastern Counties Raibcay Company (b), 
flman v. The London, Brighton and South Coast Rail-' 
ty Company {c)y Cohen v. Wilkinson {d), Richardson 
Hastings {e)f Bagshaw v. The Eastern Union Rail* 
itf Company {g). Here the transaction is contrary to 
3 act, and cannot be confirmed even as against the 
aintiffy and he is therefore entitled to sue, and in 
is particular form. 



Deeks V. Stanhope (h) was also cited. 

Mr. Bovilly in reply. The authorities cited merely 
lew that wliich we admit, namely, that the Plaintiff 
ay sue his own Directors ; but none of them go the 
ngth of holding, that a shareholder may, as such, sue 
iird parties for a cause of suit belonging to the Cor* 
)ration alone*. 

In Wilson v. Moore there was an insolvency, and 
le legal personal representatives had refused to sue. 
[ere, nothing of that sort is alleged, and no impedi- 
lent exists, wliich prevents the Corporation obtaining 

The Master of the Rolls. 

Independently of the question as to the right to sue 
Y one, this case seems to me to be clear and plain, 
he complaint amounts in substance to this : — that 
le South Coast Company had in their hands certain 
onies which were applicable to one purpose only, 


(fl) 2 C. P. Coop. 358. 
(6) \0 Beavan, 1. 
(c) Referrctl to an/v, p. 142. 
y) An/t, p. 125. 138.; and 
^aU ct TiveMs, 554. 

(7c 3 

(e) 11 Bcavan, 17. 
(g) 7 Hfirc, 1 14. ami 2 Ila/i ^ 
(h) 14 Simons, 57. 



1850. and to the performance of one particular trusty under 
^^^^^''^ an authority given to them by act of parliament, which 
V. passed in consequence of their engagement to apply 

^1^0* these monies for the particular purposes stated therein ; .^ 
and it gave the Company very extensive powers over th< 
private property of many individuals; and having 
monies for that particular purpose only and for no other, 
the South Coast Company, instead of so applying them 
have paid them over to the Portsmouth Company 
another and quite different purpose. That is the 
of the SoiUh Coast Company. 

On the other hand, the Portsmouth Company ha 
fiill notice of the only legal purpose for which thos^ 
monies could be applied, and having that notice* the; 
nevertheless received the money avowedly for the pu 
pose of applying it to an iU^al purpose, and for whicIZs 

it was expressly paid to them ; that is the situation cz=>i' 
the Portsmouth Company. Now, whether it is allege 
in words or not, it appears, that both the parties 
this transaction are guilty of fraud and coUusioi 
They are guilty of fraud against the legislature, wl 

gave them their powers for purposes entirely differen 

and they are guilty of collusion in uniting and ooi 
bining together for the purpose of completinjg 
fraud. But it is not necessary to declare that th< 
have been guilty of fraud and collusion : it is enoi 
to say that they were parties to the same breach 
trust, the one in paying, and the other in receii 
these monies for a known illegal purpose, to wl 
neither of them had any right to apply it ; and that 
money, which is now in the hands of the Portsmat^^ 
Company ought to be restored. 

The question therefore is, whether the Partsmm^ ^^ 
Company ought to be made parties to this suit. 



log a dedaration of the lights of the parties, and the 1850. 
leoovery from the Portsmouth Company of this money^ 
whifih they have received ¥rith knowledge that it was ^"'^7 
trust money^ which ought to have been applied to a Laing. 
- purpose entirely different. 

I have not the least doubt they are properly made 

jMurties to this suit. They are not third parties ; they 

lave made themselves principal parties to this misap* 

;2»Iication; they have themselves obtained the money, 

^Saiowing the purpose to which alone it ought to be ap- 

;ylied, knowing the persons to whom it belonged, and 

^et getting it out of the hands of persons having the 

vnanagement of it for one purpose, in order to apply it 

'^lO other and quite different objects. I think there is no 

^oubt that they are proper parties to this suit 

The question next is, whether this Plaintiff, by him- 

^lelf^ is entitled to sue under the circumstances. That 

2ie is entitled to sue the South Coast Company on behalf 

the other persons interested has not been denied, and 

properly so, because it would only have led to an 

S.dle consmnption of time. Having a right to do that, 

he not also a right, at the same time, to sue the 

ns who have participated in and received the be- 

efit of that illegal act, and who are claiming an interest 

^ which by this bill they are alleged to do), in the 

aintenance of that illegal act ? I must own that I 

it very difficult indeed to give way to the objection 

^•g^ this case. At the same time, if a rule has been 

l^d down and is applicable, that in a case of this 

^kind, an individual has not a right to sue on behalf of 

limSmself and others, when there is an injury done to the 

'^e'hole body — to the whole corporation — without having 

fi^vt attempted to get the concurrence of the whole 

Oorporation, it is not my province or duty to deviate 

from it. 

C c 4 I do 






I do not at present fed persuaded that it is neces^ 
sary to amend the bill, for it is quite manifest, that 
when any individual has the right to sue one, he 
must of necessity, in order that justice may be done, 
have tlic right to sue tliose who are partners in the 
wrong so alleged to be done. I should therefore on 
principle say, it Is not necessary ; and if there is no 
such a rule, I do not think I ought to ky it dow 
in this case. 

My present opinion is, that the rule does not apply f 
but I will look at the cases carefully, and mention 
matter in the course of a day or two, if I find any 
to alter my opinion ; if I do not, the demurrer must 


The Master of the Rolls. I have conside 
this case, and see no rcsison whatever to alter tl 
opinion I formerly entertained, that this bill may 
sustained in its present form, though there has been 
attempt to obtain the concurrence of the Company. 




BUDGE r. BUDGE. A'„p.8..fl.23. 


N the 29th of December 1848, the Plaintiff filed his Motion to 
bill against his brothere, John Hadnutt Budge, ?*g Pj^""^' 
ind Natlian Budge, and two others, to establish his second wit, 
lium to some real estate as tenant in tail under the ^y Ihe'l^kk- 
rillof his grandfather AicAttrtfiStdi^e dated in 1784. It tiff of the 
irayed the establishment of that will, a declaration of first which 
ights thereunder, and accounts against the two De- ^ ^'^ 
endants named. refused, it not 

appearing that 
the second 
On the 29th of May 1849, the Plaintiff filed a second bill could be 

nil against the same two brothers John Hadnutt Budge, ^^^ fJI^end- * 
lud Nathan BudffCy and eight others, stating, that his mentofthe 
father, being seised in fee of real estates under the will Qf^^ ^^^^^ 
af 1784, and possessed of personal estate, devised and in two suits 
bequeathed them to the two Defendants named, in setoff*, 
trust for his children, and he appointed them executors. 
This bill prayed the establishment of his father's will^ 
and the usual accounts of his real and personal estate. 

On the 4th of Juli/ 1849, the first bill was dismissed 
with costs for want of prosecution. These costs had 
been taxed at 57/., but the Plaintiff could not be made 
to pay them. Under these circumstances, the De- 
fendants moved, that the proceedings in the second 
suit might be stayed until payment of the costs of 
the first. 

Mr. Godfrey^ in support of the motion. The two 
suits being for the same object, the Court will not 



1949. pomk the oeeond to proceed until the coets of thi 
hsre been pni; Altrte y. Hordem (a). 

Mr. Oorfey Brommt, contra. The rule onlj applies 

where -^ die ol^ect of both suits is the same," as in 

:^im T. SnpeQ{by In Holbrooke v. CracrojUe) the 

jKund faiQ ^wK to the same effect" as the first; in 

9ggam (d) the second bill '< prayed the saine 

m Omge y. Tnc^/ocA (e) the relief was the 



\tf the first Inlly the Plaintiff prayed the esta- 
df the will of his grandfiBtther, claiining in- 
of hb fiLther> but by the second, he obunis 
de win of his father, and prays for the admiois- 
of his fiLther's estate. The relief is distinct. 

Mr. G o dfity j in reply. The object of both UQ^^^j^ 
» to leoofW the real estate of the grandfather. Th^.^^^^ 
gtttjr twittdon is in the titie under which the Plaintitr^^f 

?W Mastss of the Bolls suggested, whether, i 
in wlttch the effect of the two bills was dispu 
^ fM>pv course might not be to refer the matter to 
W MadWr: but he ultimately said he would read t=die 
b«lki hi»"ilf He said that for the application of I ""he 

ntfe W did HOC con^der that two bills should be i d < ? > n ' 

tkdl: bud it was sufficient if they were for the aa^ — me 
^MUlliT^ %Mr the second bill might be produced by a 
MMwIoBMHil of the first 

^4> ^ B ^mw mn, ^X (d) 5 Vet. 705. 

^» ^ C^Mi«. laa. (e) 2 Molhy, 4L 


The Master of the Bolls. 1849. 

I have read the two bills, and it appears to me that 
lejr are not for the same matter, and that the second 
ill oould not have been produced by a fSsur amendment 
r the first. I cannot, therefore, stay the proceedings 
L the second suit. 

I must refuse the motion with costs ; but they may be 
it off agunst the costs due from the Plaintiff to the 
defendants in the first suit. 


Dec. 19. 

ON the 17th of November 1849, a petition was pre- An ex parte 
sented to the Master of the Rolls' by Mr. and Mrs. ""J^,!"' *'^'* f"" 

^ ^ ^ delivery of a 

^jow^ alleging that Mrs. Low^ the administratrix of bill of costs 
inn Fordery employed Mr. Eldridge as her solicitor Jf^^ ^g^ . 
Old attorney, in several matters. That she was de- the allegation 
irons of obtaining the papers in the possession of sional employ- 
Eldridge belonging to her, but that he refused to de- Tf"'jf "S 
iver them until his bill of costs had been paid. That solicitor. 
he had applied to him for his bill of costs, but that he 
lad not delivered it. 

An ex parte order was thereupon made, as of course, 
ibr the delivery of the bill of costs. 

Mr. Eldridge novf moved to discharge the order, upon 
lus affidavit distinctly denying that he had ever been 
employed, or pretended that he had been employed by 
he Petitioners as solicitor or attorney, or that he ever 
lad or claimed any sum for costs or otherwise, in respect 



1849. of any bunness done as attorney or solicitor. He sai 
^-^V-^ he had never been appUed to for the delivery of an 
Eldridoe. billy and had never refused to deliver up any pape 
belonging to the Petitioners until payment of bis bilL 

The affidavits in opposition shewed, that Hldridi 
had been in the habit of attending to the affiurs of M 
Farder^ his mother-in-law, before her death, and ha 
applied for the interest on two mortgages for hen Th; 
on her death, in Augtist 1849, adminbtration 
been granted to Mrs. Low^ her daughter, who sent 
Eldridge to procure for her a certificate of Mrs. Forde 
death, for the purpose of recovering an arrear of pe: 
sion, which Eldridge afterwards did. It was also 
mitted, that he had in his possession some documen 
relating to the affairs of the deceased, but which he d£ 
not object to deliver up. 

Mr. PoUy in support of the motion. The order, pro- 
ceeding on a false allegation of the employment of Mr. 
Eldridge professionally, and of his refusal to deliver a 
bill, and of his insisting on payment before delivery up 
of the intestate's papers, ought to be discharged. There 
being no bill, it is impossible to comply with the order; 
and it is necessary to discharge it, otherwise the solicitor 
may be liable to an order for committal. 

Mr. jB. Palmer, contrit. Tlic question is not whether 
tlie solicitor now makes no claim, but whether there was 
an employment in respect of which the client was justified 
in considering herself liable for costs, and bound to come 
here to obtain delivery of the papers. The solicitor 
might properly have charged for the business done in 
respect of the certificate of burial, and it b not by 
his waiver or disclaimer of the charge, that the order 


son be rendered irregular, or that the solicitor can 1849. 
Sflcape from the Bummary jurisdiction of the Court. ^^y^^^ 

The Master of the Bolls. 

I am of opinion that this order ought to be dis- 
charged with costs. As to the professional employment 
>y Mrs. Fordery that is not alleged in the petition, and 
3 not the foundation of the order. 

As to the employment by Mrs. Lawy all that was 
lone was to procure the certificate of death. This was 
lot necessarily an employment as a solicitor, for any 
igent might have procured it. I find nothing, from 
vhich I can infer, in opposition to the direct oath of 
he solicitor, that he was ever professionally concerned 
OP the Petitioners, and it appears he never claimed 
iny bill or refused to deliver up the papers until any 

The party comes here solely on the ground that she 
employed Mr. Eldridge as her solicitor, and that he had 
k bill against her of which he required payment prior 
delivering up the papers. I think the order was 
obtained on an untrue statement of facts, and that this 
ippears, not only from the oath of the solicitor, but from 
he evidence brought to contradict him. 

Discharge the order with costs. 



Dec.S. 10. 19. In re KER 

Jem. 11. 

A solicitor f^'^ *^® ^^^ ^^ ^^^ 1849, the uBual «jr parte order 
was ordered V^ ^^^g ^aade, that Mr. JSTer should, within a fort- 
bill for tax- iiight, deliver his bill of costs, and that thereupon the 
ation. Upon q^^jj^q should be taxed, and the papers delivered up as 

a motion to ^ r r r 

commit for the USUal. 
non -deliver)', 
he swore he 

had no docu- A motion was now made that he should stand com- 

7^nZ '"''" n^^^^ fo>^ ^^^ non-delivery of his biU. 
from which he 

out his bill. ^^G solicitor, in opposition, made an affidavit, stating 

The CJourt ^jj^t the only transaction in which he had been engaged 

made no order . . T r tut rr n ^ j, 

on the motion, was m raismg a sum of money tor Mr. CoUett, as to 

which a special agreement had been entered into, under 
which he was to receive, as his remuneration, a ^ven 
sum on a given event ; that the event having hajq[)ened, 
he, on the 21st of December last, had come to a settle- 
ment of accounts, when the client gave him bills for 
3622. in settlement, which had been since paid. That 
^^ he acted upon this understanding, and made no entries 
in his books, with a view to making out a bill of costs, 
and had no documents or memoranda from which he 
could make out a bill of costs against his client CoUettJ* 

His derk also stated that there were no entries made 
of the business. 

This statement, as to the agreement and payment, 
was contradicted by the client. 

The papers had been handed over. 



Mr. Thimer^ in support of the motion, insisted that 1849. 
the solicitor was bound to deliver his bill in pursuance T^^Z^ 

^ In re Kbr. 

of the order ; otherwise his client could not proceed 
with the taxation, for he would not know what were 
the charges, and that while the order for delivery re- 
mained unimpeached, the Court would enforce it. 

Mr. H. Stevens^ contra, argued that, as there was a 
special agreement, there could be no taxation under the 
statute : In re Whitcombe (a), In re Rhodes (J). 

That the Court would not commit for a non-com- 
pliance with an order, the performance of which was 

The Master of tfte Kolls said he would consider 
the case. 

The Master rf the Bolls said he had looked over 1050. 
"the affidavits and found he could make no order. •^''"' ^'* 

(a) 8 Beavan, 140. (6) 8 Beavm, 224. 


Jan, 18, 19. 

A company 
was autho- 
rised by three 
several acts to 
make three 
several rail- 
ways, and 
raise three 
several sums 


npHIS case came on upon general demurrer to t' 
bill, which, in effect, stated as follows : — 

By three several acts of parliament, which received t. 
Boyal Assent on the 3d oi August 1846 (a), the Shr^ 
shire Union Bailways and Canal Company were e 

TOsl 'a sub- P^w®^ ^ make three distinct railways ; the first frc^, 

Shrewsbury to Stafford, the second from Newtown 
Crewe, and the third from Calveley to Wolverhampton* 

sequent act 
declared, that 
the company 
mentioned m 

several acts By a fourth act, passed in the subsequent session (l\ 

hi^^h""^ ^^ ^® SArop^Aire Union &c. Company were empowered 
same, and not and required to grant, and the London and North 
dwtincr<»m- ^^^^^ Railway Company to accept, a lease of these 
]>anie8. Shares railways, when completed, on certain terms. 

were issued 
for raising the 
whole capital 
for the three 
without dis- 
tinction, and 
calls were 
made: Held, 
that the com- 
pany had no 

right to apply panics." 
the funds in 
making one 

And by such act (after referring to the three pre- 
vious acts) ^* for the removal of all doubts, it was en- 
acted and declared, that the Shropshire Union Railways 
and Canal Company referred to in the said** three 
acts (stating them) '^ were and ever had been one and 
the same Company, and not separate and dbtinct Corn- 

only of the 
the others ; 
but that a 
clear allega- 
tion not only 
of the aban* 

By the first act the Directors were empowered to 
raise, by shares, 800,000/. ; by the second, 1,500,0007., 


(fl) The 9 & 10 Vict, c. cccxxii., (5) The 10 & 11 Fid. c. cxxL 

the 9 & 10 Ftc/. c. cccxxiii., and 
the 9 & 10 Vict, c. cccxxiv. 

donment, but 

that the directors intended so to misapply the funds in making a part only, 

necessary to support a bill to prevent it. 



and by the third, 1,000,0002. The Directors proceeded 
to raise these sums by the issue of 165,000 shares of 
20L each, on which they had made certain calls. The 
third call was made in July last ; and the Plaintiff, a 
shareholder, not having paid the call, an action was 
brought against him for the amount. The amount of 
deposits and calls, if paid, were stated to amount to 



The £arl 

The bill alleged, that the only part of the three 
lines which had been constructed was a portion of the 
Shrewsbury and Stafford line, which had been opened ; 
and it stated, in substance, that it had been determined 
that no further works should be undertaken beyond 
the completion of the Shrewsbury and Stafford lino, 
and that the Directors had abandoned the other two 
lines, and intended to apply to Parliament for 'autho- 
rity for that purpose. 

It insisted, that the Directors had no power to 
construct the Shrewsbury and Stafford railway only ; 
it, however, omitted to allege, that the Directors in- 
tended to apply the funds exclusively in the formation 
of one only of the three railways. 

This bill was filed by the VhXn\\^ Hodgson on behalf 
of Umself and the other 20/. shareholders, against the 
Company and the Directors, praying a declaration, that 
it was not within the powers of the Company to apply 
monies raised under the three acts, or any of them, for 
the purpose only of constructing the railway from 
Shrewsbury to Stafford, and for an injunction to re- 
strain such application, and to restrain the Directors 
from making and enforcing calls, except for the purpose 
and with a view to the construction of the whole thrce 

Vol. XII. J) d To 





The Earl 



To this bill the Directors demurred for want of 
equity, and also for want of parties. 

Mr. Turner and Mr. WiUcockj in support of the de- 
murrer. This case does not come within the principle 
laid down in the case of Cohen y. WWdnMon (a), which 
determined, that Directors were not justified in apply- 
ing funds, raised for the purpose of making a complete 
line, in the construction of a mere firaction of the line. 

[ The Master of the Bolls. 

The argument in that case, for the Defendants, was 
this : — how can we go farther than Leatherhead, if you 
prevent us going so far? On the application for the 
injunction, I asked the Directors, " will you make an 
affidavit that you are making the road to Leatherhead 
with a view of going to Portsmouth f " That put an 
end to the case. I should not have granted the injunc- 
tion if they had made that affidavit. The same thing 
may happen here, upon the motion for an injunction.] 

Here there were three separate undertakings, autho- 
rised by three several acts of parliament passed irre- 
spective of each other ; and if the Company had fiuled 
in obtaining the sanction of the l^slature as to two, 
they would still have been under an obligation to com- 
plete the third. These acts authorised the raising of 
distinct funds for the completion of any of the lines, in- 
dependent of the others. 

[ The Master of the Bolls. 

I cannot feel the force of this argument : here are 
three things which Parliament has thought fit to join 
together ; that cannot mean that they are to be con- 
sidered as three distinct undertakings. Suppose there 


(«) Antc,p. 125. 138.; 1 Hail ^ Tw. 55^ ; Vid I Jlfac.4- Gor. 481. 


were to be one railway from London to Croydon^ another 
from London to Guildford, and a third from London to 
Windsor. If Parliament thought fit to unite all three 
into one undertaking, and say, that the whole capital 
should be considered as a consolidated capital — a common 
fund — can there be any doubt that the parties who 
undertook to make them must make them all ? I can- 
not at all understand how they can be considered distinct 
undertakings, if Parliament has united them all into one.] 




The Earl 

The Company is, by the Act, declared to be '' one 
and the same Company ; " but because three things are 
to be performed by that Company, that does not con- 
solidate them into one. The present incapacity to 
complete all, does not make it illegal to finish one. 

The Plaintifi^ cannot sue on behalf &c. in such a 
case ; besides which he is a defaulter, and it is the non- 
jmyment of the calls by the Plaintiff and other share- 
Iiolders that prevents the completion of the whole un- 
dertaking. He should tender the amount due from 
luxD) and pray that the work should be performed, and 
not that its completion should be prevented. 

They argued, also, that the London and North 
Western Railway Company had a distinct interest under 
the last act, and were necessary parties to the suit. 

They also cited Cooper v. The Shropshire Union 
Company (a), Bagshawe v. The Eastern Counties Rati' 
wag Company (&), Foss v. Harbottle {e). 

Mr. MaKns, Mr. B. Palmer, and Mr. Westoby, in 
support of the bill, argued, that the principle of Cohen 

V. Wilkinson 

(a) r. C. K. B. January 2?, (b) 7 Hare, \H. ^ 2 Hall 

1649. and Tw. 201. 

(c) 2 Hare, 461. 

D d 2 






The £arl 

V. Wilkinson was applicable, for the Companies created 
by the three acts had been declared to be and ever to 
have been ^' the same Company, and not three separate 
and distinct Companies.'* That the fund raised was a 
general fund, applicable to the three undertakings, and 
exceeded the amount which could properly be ndsed 
for the first railway alone, viz., 800,000/., and that it 
could not be exclusively applied in the completion of 
one line of railway. 

That the North Western Company were not necessary 
parties to this bill ; for their obligation to take a lease 
only arose upon the completion of the whole line ; and 
that the case was similar to a bill by a partner to en- 
force the partnership contract, and prevent a misap- 
plication of the partnership funds, to which species 
of bill, persons who had entered into a contract with 
the partnership could not be proper parties. 

Mr. Turner^ in reply, for the first time, called the 
attention of the Court to the fact, that the bill did not 
distinctly allege, that the Directors intended to apply 
the funds in completing a part only of the railroads. 

The Master of the Rolls. 

I have no doubt, that a case of this kind is subject 
to the application of the same principles as were acted 
upon in the case of Cohen v. Wilkinson and in the other 
cases. Consequently, if it were here distinctly alleged, 
that these powers (notwithstanding they at first ori- 
ginated in separate acts of parliament) have become 
vested in the Company for the purpose of completing 
all the several works authorised by all the acts of par- 
liament, the Directors have no right to apply the funds 
of the Company to the completion of a part, abandon- 
ing the rest. This, I think, is alleged over and over 
again in this bill. 



That being alleged, I do not think that it is an answer 
to the Plaintiff^ or a suflBcient distinetion between the 
cases to say^ that the first of these acts of parliament 
provided *^ that the money raised by the 20^ shares 
should be applied as a fund for the construction of the 
railway and works thereby authorised^ and for the pur^ 
pases connected therewith.^ That last expression is too 
indistinct in itself^ to enable the Directors to apply the 
funds at large, as they may think fit. I think, there- 
fore, that this makes no sufficient distinction. 






But if it be true that this bill, though it contains an 
allegation that they have abandoned a part of their 
line^ and that it would be illegal to apply the funds in 
completing the remainder, does not state any intention, 
still less any fact evidencing any intention, of apply- 
ing the funds of the Company in completing the parts 
not abandoned, I think it wants a most material allega- 
tion to support it. 

Thinking that such an allegation might, in all pro- 
bability, have truly been introduced, I must, upon al- 
lowing the demurrer on that ground, give the Plaintiff 
leave to amend, and if he has occasion to amend in 
other particulars, he will be at liberty to do so. 

With regard to the objection for want of parties, T 
am very much inclined to think that it would be proper 
to make the North Western Eailway Company parties, 
in consequence of the agreement entered into between 
them. However, I do not mean to give any decided 
opinion on that point 

I must allow the demurrer, with leave to the Plaintiff 
to amend. 

Dd 3 




Interroga- rpHE Pluntiff; Gregory, allied* that in 18479 
^^£[.JJ^ ^^ employed Messrs. DmitM and EvanM to 

of witnesses an action against Mrs. Matters, to recover ZQOL 

SfbS^iT*" *® ^^^^ w«« 8®*^^ i» ^^^ 18^7* ^y Mra. Ma 
Court re- tert giving promissory notes to Evans. These w 

Defeodant the indorsed by the Plaintiff, who gave spedud 

righto object to pny the amount to Messrs. Wrigley on 

sitions at the instead of which, Evans applied the amount to bia o 

'^^"""S* use. An action was afterwards brought on the nol 

by the holders, against the Plaintiff as indorser, *»^ irf 

he was compelled to pay the amount. DoxAsm 
dead and Evans insolvent, this suit sou^t to 
the estate of Davies with the amount lost by 
default of his partner, Evans. 

The defence was, that the partnership had been 
solved on the 5th of May 1847, and that the transac- 
tion, in June 1847, had been conducted by JS'iMmi, 
separately, after the dissolution of the partnership. 

By amendment the Plaintiff, in aid of his oase^ 
alleged, that Evans individually gave a cheque on his 
bankers for the amount of the costs received from Mrs. 
Matters in the action, in favour of the firm ; ^' but that 
the cheque was returned on the following day, the 
bankers not having sufficient effects of the said Jo&si 
Evans to meet the same ; " that another cheque was 
given by Evans for the amount of the said coats, and 
that the said last-mentioned cheque was paid and carried 


by the Mid bankers to the credit of the said firm of 
Dames and JEvans, in the said month of June 1847. 

The bill also alleged, that Doxies had, in June 1847, 
been informed by Ariellf his clerk, of the misapplication 
of the Plaintiff's monies ; and that ArieU^ in the same 
month of June 1847, suggested to and pressed and urged 
upon the said David Davies that he had better write 
to Messrs. Jfrigley, and inquire whether they had 
authorised the said John Evans to retain as a loan the 
said sum of 151iL 6s. 



The Plaintiff exhibited interrogatories for the ex- 
amination of witnesses, which were objected to as 
being leading. They were to the following effect : — 

The 6th interrogatory, after inquiring whether 
Evans had or not drawn a cheque in fistvour of the 
jmnt account for the costs, proceeded thus : ^^ If 
yea, was or not such cheque returned to the said 
John Evansy with notice, on the part of the said bank, 
that he had not on his said separate account sufficient 
effects to meet itf " 

The 7th interrogatory asked the witness, whether 
or no he had been employed to take any legal pro- 
ceedings against the Plaintiff, for the purpose of re- 
covering ** the amount of any and what promissory note 
or promissory notes, drawn by Sarah Matters in favour 
of the Plaintiff, and endorsed by Evans to the bank, 
or any other, and what promissory notes or promissory 
note. If yea, did you or not take or conmience any 
and what proceedings &c. ? " 

The 8th interrogatory exhibited to the derk of the 
firm was partly as follows : *^ Whether or no did you, 

D d 4 ever 






ever and when, suggest to the said David Davies^ or 
press and urge upon liim^ that he should write and 
make inquiry of Thomas Wrigley and James Wrtgley^ 
tohether they had authorised Evans to retain^ as a loan, 
the said sum ofl5lL 55. ? " 

The last interrogatery objected to, and wluch was 
directed to Mrs. Matters, after referring to the action 
of Gregory v. Matters, proceeded in these terms: 
'^Was or not the said action or proceedings stayed 
or settled, under or pursuant to an order made by the 
Chief Justice of the Court of Common Pleas, on the 
9th day of June 1847, or on some other and what day, 
and upon the terms of your giving to the said Com- 
plainant three promissory notes for the sum of 5021 eadi, 
or some other and what promissory notes, and paying 
to the said Complainant the sum of 1507. and interest, 
or some other and what sum and interest ? " 

The Master, to whom the matter had been referred, 
reported these interrogatories to be leading, whereupon 
the , Plaintiff took exceptions to his report, which now 
came on for argument. 

Mr. Beaks for the Plaintiff. The Master considered 
himself bound by the rules of practice at Nisi Prius ; 
but there, upon an objection being raised, the difficulty 
can be removed by changing the form of the ques- 
tion ; the same rule cannot be applied in equity, where 
no such opportunity is given. If the practice were 
otherwise, then upon a trifling slip, a party might lose 
the whole of his evidence. 

It is said, that these interrogatories suggest some 
particular matter to the witness. This is unavoidable ; 
for ^^all interrogatories must, to some extent, make 



a suggestion to the witness. It would be perfectly 
nugatory to ask a witness if be knew nnytbing about 
something: " lAncoln v* Wright (a). The question al- 
ways is, whether the interrogatories have been inten- 
tionally framed with an improper motive; and some 
aDowance must be made for the difficulties in equity, 
where the examination is in private, and where the wit- 
nesses are adverse. 






Here the interrogatories are not leading ; if that be 
doubtful, the reasoning of Lord Cowpcr, in Pearson y. 
B4noland(b\ applies: He says, ''Where the reasons 
for suppressing depositions are doubtful, they ought to 
be preserved: when they are suppressed, the Court 
has no means to judge upon them; but when they 
are preserved, truth has that probability in it, and 
falsehood is generally attended with some mark or in- 
consistency, that there is no danger of the Court being 
misled by them.** 

Mr. Shebbearey contrdi. The finding of the Master 
is correct ; for all the interrogatories suggest not the 
subject, but the terms of the answer to be given. The 
sixth interrogatory suggests the very terms of the 
notice, and puts the precise words in his moutli. It 
ought to have been, '' was the clicque returned with 
any and what notice ? "" 

The 7th interrogatory suggests and assumes the fact 
of the promissory note having been drawn by and 
endorsed by particular persons. 

The 8th interrogatory suggests the very teims of 
the inquiry alleged to have been made, instead of 
asking what suggestion the witness had made. 


(a) 4 Beavan, p. 171. 

(b) 2 Swan. p. 268. 




The last intenogat o ry stateB the ecuot 
which the action was setilecl^ instead of piodnoing &e 
order itself, or asking the witness tostatethe.tennaof it 

The questions are not calculated to elidt the whole 
truth, but to obtain an answer in a particolar fonn^^ 
favourable to the Plainti£ 

Mr. Beales in reply. 

The Master of the Bolls. 

Interrogatories must, to some extent, point to 
subject I do not think that these interrogatories 
leading, and if they are objectionable, it will be o 
to the Defendant at the hearing to object that the 
positions cannot be used. I think they ought not 
to be finally excluded. 



t/difi* 81. 

Parties com- 
promised the 
of the suit, 
without pro- 
viding for 
the costs. 
Held, that 
the cause 
could not be 
heard, for the 
purpose of 
the costs 
alone, and it 
was struck 
out of the 


rpmS bill was filed in 1848 agunst Lord SuffU!^ 
•*- and Mr. Lewis, 

It was now admitted, that in 1849, the Plaintiff and 
the two Defendants had compromised the subject matter 
in dispute by payment of a sum of money. They agreer 
by deed to dismiss and determine every action or su 
relating to the subject matter in dispute ; but nothii 
had, on that occasion, been determined as to the co 
of this suit. 

The cause now came on for bearing. 

Mr. Turner and Mr. Grove^ for the Plaintiff 
parties having withdrawn from the consideration ' 


Coivt the odIj matter in dispute, the cause cannot be 
heard for the mere purpose of deciding the question of 
ooBtSy ^^ for the Court entertains the subjeot of costs 
only as incidental to the subject of the suit" Roberts 
¥• RoberU (a), Forayth v. Manton (&), Gibson v. Lord 

Mr. Walpole and Mr. Wright^ for Lewis, contra, ar- 
gued, that he, being a mere trustee, was entitled to have 
the merits gone into^ to enable him to obtain his costs of 
suit. They admitted that he had been party to the 







The Master of the Rolls. 

Then the cause must be struck out of the paper. I 
am governed by the authority cited, which is expressly 
in point 

(a) 1 Sm. 4> St. 39. 
(6) 5 Mad. 78. 

(c) 6 Mad. 365. ; but see 
&oeU V. Abraham^ 8 Beav. 598. 


Jan. 81. 

nnHE testator, by his will, duly executed and at- ^4. j9., an heir, 

tested according to the then existing law, and ^i^ggdnst 
dated in 1832, devised all the hereditaments &c. ^^^ ^i^K and 
** whereof or whereto he was, or any person or persons e^cutors to 
in trust for him, was or were seised or entitled, or of or complete a 

contract en- 
to tered into by 
the testator 
for the purchase of a freehold estate, and it was conveyed to him. He nevertheless 
received great benefits under the will. Held, that the parties disappointed by the 
election^ had no lien on the estate for the amount received ; but that they were 
SDtitlad to prove against the estate of A. B. for the whole amount received by him 
mder the wilL 


1850. to wUcli he should be seised or entitled at the 'time ol 

G ^I w^Ak ^^^ decease," to R. P. Greenwood {his heir) for life^ irith 

V. remainder to his first and other sons in tail; and he 


bequeathed his personal estate to his execators, to 
laid out in the purchase of freehold to be settled to th 
same uses. 

In 1840, the testator entered into a contract for tb 
purchase of a freehold estate at Castle Cory, for 
He paid 410/. on account, but at his death in 
1840, the purchase remained uncompleted, and no cor^. 
veyance had been made. The estate, therefore, did 
pass under his wilL 

After his death, his* heir elected to take the p^'^iN 
chased estate independent of the will, and he called. ^ 
the executors to complete the purchase by paymen'^ of 
590L out of the residuary personal estate, and the same 
was conveyed to him as heir-at-law of the testator, 
appeared that such heir had, under the will, receive 
6700^ out of the personal estate. 

B, P. Greenwoody the heir, died intestate, leaving 
Robert Greenwood Penny, an infant, who, under th^ 
will, was tenant in tail of the real estates, and abso- 
lutely entitled to the residuary personal estate. 

This was a creditors^ suit to administer R, JP. Gree 
wood's estate which was said to be insolvent. 

The only question was, what compensation ough 
be made to the tenant in tail in consequence of 
intestate tenant for life having taken against the wi 

Mr. Rogers^ for the Plaintiffs, the creditors o 
intestate, argued, that the tenant in tail must co 



and prove against his&ther's estate for 410/. as a simple 
oontract creditor.. 

Mr. Turner and Mr. Babingtont contrd, for the tenant 
in tail, jR. Greenwood Penny. The tenant for life was 
bound to elect; Thellusson v. Woodford (a). Churchman 
T. Ireland {b); and he appears to have elected to take 
the estate against the will. We do not argue that this 
occasioned a forfeiture of all his interests thereunder, 
00 as to make his estate liable for 6700/. (c)^ but that 
it rendered him liable to make compensation to the 
disappointed devisee, (c) The 590/., which was trust 
money bequeathed upon certain trusts for investment, 
is traced into this estate, and therefore the parties en- 
titled thereto have a lien on such estate for the amount. 
'^It is now settled that money may in this manner be 
followed into the land in which it is invested;" Lench 
V. Lench (d). 





At any rate, we are entitled to prove for the whole 
lOOOf. the value of the estate. 

Streatfield v. Streaffield (e) was also cited. 

Mr. Ntchoh, for the administratrix. 

Mr. Itoffers, in reply. If the tenant for life were 
living, the Court no doubt would sequester his interest, 
in order to make a compensation ; but here that cannot 
now be done, for he is dead, and his interest has ceased, 
the consequence is, that satisfaction can only be had as 

(a) 13 Fetey, 209. 

(6) I Buu. i MfjL 250. 

(c) See Mr. Swansiona note 
to Dilion r. Parker^ 1 Swan. p. 
381., and Vir. Jacobs note, 1 

Roper {Husband and Wife),5&Q.\ 
and 1 Leading Cases in EquUy, p. 

(d) 10»#. p.516. 

(e) Ca, temj). Talbot, 176. 


I860. a debt due from his estate. The money was not laid 

J^^^"""^^ out in breach of trust and unauthorised, but in saiis- 

V. faction of a legal debt due from the testator, ine 


proof I admit must be for the whole lOOOil 

7%tf Master of the Bolls. 

According to the law as it then stood, this estate did 
not pass by the will, and it is admitted, that the cir- 
ciunstances were such, that the devisee, who was the 
heir, was bound to elect either to take under or against 
the will It is settled, that if the hdr-at-Iaw takes 
agunst the will, he must account for all he has reoeiyed 
under it It is further settled, that if real estates oon« 
tracted to be purchased do not pass by the will and the 
heir takes them, he is entitled to have them paid for 
out of the personal estate. Any part of the purchase- 
money which may remain unpaid, forms a debt due 
from the testator and for which the vendor has a lien 
on the estate, but the heir-at-law, succeeding by de- ^2 
scent, has a right to call on the executors to pay the ^^^me 
amount out of the personal assets. 

That bemg the law, what happened in this case? ^ ? 
The heir received a considerable portion of the personal 
estate under the will, but he elected to take against 
the will. I should have thought that he was bound to ^^^ 
account for all he had taken under the wilL 

The argument as to tracing the purchase-money into 
the land cannot be sustained. The debt having been M^^^ 
paid, and properly paid out of the personal estate, I do ^:^^^ 
not see how it can be said to have been misapplied, or '^^^^ 
how the heir got the benefit of it by any misappUca- 
tion of the assets. That is the view I take of it I 
cannot arrive at this : — that what was applied in pay- 


ment of the testator's debt was so applied in breach of 
tmst. If any authority for it had been cited, I should 
have been glad to ^ve the benefit of it to the devisee, 
and I would consider of it for my own satisfaction. 
My impression is, that there is no lien on the estate, 
but that the heir is bound to account for all he received 
under the will. 




After some further cBscussion, the order made was to 
ihe following efiect : — 

Declare that the freehold estate in question forms 
part of the intestate's real estate, without being subject 
to any lien &c in respect of the purchase-money, paid 
ibr it. And the intestate having elected to take agiunst 
the will, declare hb estate is accountable to the testa- 
lor^s estate for all sums received by him (the intestate), 
in respect of the rents and profits and interest and an- 
xoal produce of the testator's real and personal estate 
iinder his will. 

Sefer it to the Master to take an account of all sums 
my£ money received by the intestate, in respect of rents, 
2>rofits, and interest, with liberty to the infant Defend- 
^mt to go in before the Master, to prove for the amount 
^mirliich may be found due from the estate of the intes- 
"tiate to the estate of the testator, as a debt due from the 
^sstate of the said intestate (a). 

(a) Reg. Lib. 1849 A. fol. 451. 



J«i. 81. 31. HARGRAVE v. HARGRAVE. 


Upon the HPHE question in this cause depended upon the 1^-i 
W**b«ween timacy of the Plaintiff (an infant), and an issu,. 

an in&nt and having been directed, the jury, on the 10th of F^ruai-^ 

S^Scom- l®-^^> ^°"°^ "» ^*^o"' o^t^^e Plaintiff (a), 
promise were 

Counsel; and -^ second trial was afterwards directed, upon which t!!,^ 
the cauie was jury, on the 22d o{ June 1848, found for the Defenda:^^: 

withdrawn. ^^ 

The agree- 
ment, though ^ third issue was then directed, which came on -fa 
such as tlie , . 

Court would trial on the 19th of June 1849, on which occasion, the 

don^* WM Counsel for the Plwntiff and Defendant signed the ^J^|L 

not binding lowing agi'cement : — " The entire estate to be eqoaflj 

The adult divided between the Pliuntiff and the Defendant. Eflci 

afterwards re- party to bear all his own costs. The Defendant to 

iiiscfl to be* 

bound by the retain all rents received by or for him prior to the 

arrangement, appointment of the Receiver. The fund in the Court 
A new trial ^* 

was directed, of Chancery and in the hands of the Receiver to be 

jSiy wa^^oJ! «q"*^'y ^^^^^^^ between the Plaintiff and the Defend- 
dered to pay ant. Rule of this Court, if necessary, to be drawn 
the costs of "P ^^^ enforcing these terms. Order of the Court of 

the issue, as Chancery, if necessary." 
had been ren- 
dered fruitless, 

bS'lenSed''' Upon this,'each party withdrew a juror, and tbe trial 

available on was not proceeded with. The Defendant was at first 

qu^nt u?ul. willing to carry the compromise into effect^ but be 

On the trial afterwanis refused so to do. 

of an issue, the 
common law 

Counsel en- A petition was now presented by the Plamtiff, pwr 

tered into an. /.ait^/., i , « i-«r 

arrangement ^^S ^hat it the Defendant elected to confirm and carry 
as to all the out 

puu'ln the^**" («) 8 Beav. 289. and 9 Beavan, 153. 549. 552. 

cause. Held, that the matters were not so distinct as to be beyond his autboritr. 


oat the compromise, a proper instroment might be exe- 
cuted ; but if he did not, then that the issue might be 
tried, and that the Defendant might be ordered to pay 
to the Plaintiff his costs of preparation for the trial, on 
the 19th of June 1849, and consequent thereon, and of 
this application. 

The Plaintiff being still an infant, it was admitted 
that the agreement was not binding on him. 

Mr. Turner and Mr. KyUy in support of the petition, 
admitted that the Court would not direct a specific 
performance which was not asked by the petition, and 
aligned as follows : — A party is bound by the consent 
of his Counsel given in Court, In re Hobler (a), and 
a memorandum signed by such Counsel is binding on the 
client ; Porter v. Cooper (b) ; though he had no instruc- 
tions to consent ; Fumival v. Bogle (c). The denial of 
the client of any authority is insufficient to prevent the 
consent taking effect ; Filmer v. Delber (d), for it is for 
Counsel to consider whether he is authorised to consent. 
If he does the Court will act on such consent, and the 
cUent will be bound by it ; Mole v. Smith (e). Here the 
party was present and made no objection : he is, there- 
fore, on that ground, bound by the agreement ; Colledge 
T. Horn (g). The onus of disproving the authority lies 
on the client ; Elworthy v. Bird (Ji) : the Defendant is, 
therefore, responsible for the act of his Counsel and the 
costs which have been occasioned by his consent. 


2. The agreement is so manifestly for the benefit of 
Ihe infant, that the Court would at once sanction it, if 


{a) SBeavofi, 101. (e) 1 Jac. 4- W. 673. 

(b) 1 Cr. M. 4- R. 387. (g) 3 Bing. 1 19. 

(c) 4 Rtut. 142. (Ji) Tamfytt, 38. 

(d) 3 Taunt. 486. 

Vol. XIL E e 







the Defendant should elect to be bound thereby, but if 
he should refuse, then the new trial must proceed, and 
the Defendant ought to bear the costs of the failure of 
the last proceeding, which has been occaaicmed by his 
0¥m improper conduct. 

Mr. Lloyd and Mr. Glasse^ contra^ for the Defendant 
llie compromise was not binding on the Plaintiff, an 
infant, and on the other hand the Defendant ie not 
bound by it for want of reciprocity ; Flight v. BoU 
land {a). Again, the Defendant's Counsel had no 
authority, either express or implied, to enter into it 
His authority extended no further than the matters in 
controversy in the issue, namely, the Intimacy of the 
Pluntiff: here, the subject of the agreement is thi 
estate and the rents, as to which Counsel at law we 
not instructed. It would be most dangerous to hoi 
that Counsel are general agents to such an extent, 
to have an unlimited authority to bind their client i 
all their affairs. In the cases cited, the matter 
within the scope of the implied authority of Counsel 
here it is beyond such authority; and JSboarthy 
Bird (J)) shews that the Plaintiff is bound to 
that the Defendant assented to the terms. 


2. But even supposing Counsel had authority, 
the agreement was not binding until embodied in 
order of Court. 

3. As to the costs, it was the fault of the Phdntiff 
advisers to proceed on an arrangement kno¥m not to 
binding; Colwel v. Sir William Child (c). The cases 

(a) 4 Ruts. 298. 

(b) 13 iMre, 222. 

(r) 1 CA. Ca. p. 87. 




Jktoaqtort y. Stafford (a), and l^pt^den r, Terton (b) 1850. 
were alaa cited. J^C^ 

Mr. Turner, in reply. 


2%e Masteb ^ the BoLLS. 

With a slight exception, the agreement signed by 
Counsel gave to the Plaintiff the whole relief which he 
sought by his bilL The trial was auxiliary to the pro- 
ceedings in this suit, and it is impossible for me to be- 
lieve, that the Counsel were not aware of what was 
^e real matter in controversy between the parties, 
or that they were not furnished with full instructions. 
The principal difficulty I own is this : — the Plaintiff 
is an infant, and, according to the decisions here, this 
Court will not decree the specific performance of an 
agreement entered into between an infant and an adult, 
there being no mutuality or reciprocity ; and if, there- 
fore, this agreement had been entered into with perfect 
authority, it is not unreasonable to doubt, whether it 
oould be enforced by this Court. That relief, however, 
is not sought by the petition, unless the Defendant con* 
sents to it It depends on the consent of the Defendant, 
and would not then be sanctioned by the Court, unless 
the agreement were considered beneficial to the infant. 
It appears so clear, that this agreement would be bene- 
fidal to the infant, (not because it gave lum a right 
to the whole relief claimed, but because it gave him 
the substantial part at once, and relieved him from 
all further expense, delay, and uncertainty,) that there 
is no ground for thinking, that the Court would have 
interposed any difficulty on behalf of the infant. 

(a) 8 Beavan, 503. 


(b) 2 DowL P. C. ni, and 4 Tz/r. 809. 
Ee 2 





From the affidavits, I cannot doubt, that, beyond, 
the general authority which the Defendant's Counsel 
had, there was, either previously or subsequently, an 
adoption of or consent to the terms by the Defendant. 
It is expressly stated, and not denied by the Defend- 
ant, that he did, at one time, consent to the terms, 
and that he afterwards refused to be bound by them. 
The trial of the issue was put off, each party consenting 
to withdraw a juror, and by that act, founded on this 
agreement, the further proceeding on that trial was 
rendered impracticable on that day. The Defendant 
then says, " I dissent, and will not carry the agreement 
into effect because it is an agreement on behalf of an 
infant, which cannot be carried into effect" The con- 
sequence of which is, that by the act of the Defendant, 
the whole expense of the preparations for that trial 
was incurred in vain, except so far as it may be made 
available on a future trial. If any part can be used on 
a subsequent trial, it is a material consideration in 
respect of costs. 

The result is this: — in consequence of the Defendant 
having departed from the arrangement made at the trial, 
a considerable part of the expenses which had been in- 
curred were rendered fruitless, and it became necessary 
to apply to the Court. This petition asks, if the De- 
fendant refuses to abide by the agreement, for leave to 
go on with the trial ; and that the Defendant may pay 
the costs incurred, and the costs of this petition. As 
to the first, there can be no doubt of the right of the 
Plaintiff to go to another trial. 

As to the second part, it has been objected, on behalf 
of the Defendant, that the authority of Counsel does 
not extend beyond the very subject-matter of litigation 
in the proceeding, and that in this matter, it extended 
only to the question of legitimacy, as to which alone 




±he issue was directed, and that, therefore, he is not 
xesponsible for the act of his Counsel. In this case, the 
proceedings in the cause and the issue are so closely 
connected, that I do not think that this can be con- 
sidered as an agreement relating to a distinct matter, 
I am of opinion that the objection cannot prevail. 





Another objection taken on behalf of the Defendant 
^viras, that no order was drawn up, though one of the 
^erms of the agreement was, that it should, if neccs- 
r, be made a rule of Court After reading the cases 
I, I think it has been determined, that it is un- 
siecessary that such an agreement should ripen into an 
order of Court, before it can be made available. Is the 
-^nrithdrawal of a juror nothing ? And is there not this 
£bct, that the case being called on, was not proceeded 
^with in pursuance of the agreement ? I cannot think 
tliat this objection can prevail. 

The only question is, what costs ought to be paid by 
the Defendant to the Plaintiff? I think a distinction 
ought to be made, and that so much of the costs of pre- 
paring for the trial, as, by the failure of the arrange- 
ment, have turned out to be wholly unavailable for a 
new trial, ought to be charged on the Defendant, by 
whose act they have been rendered useless. With 
r^ard to the costs of this petition, I think I shall not 
do wrong in making them costs in the cause. 

The order I therefore make is, that the third trial 
of the issue shall be proceeded with, and that the De- 
fendant shall pay to the Plaintiff so much of the costs 
of preparing for the last trial, as cannot be made 
available for the trial of the issue to be had under this 
order, and that the costs of this petition shall bo costs 
in the cause. 

Ee 3 



«'««• «»• HALL V. HALL. 

A partner /~|N the 20th of March 1848, James and John HtM 
dula hL* '-^ entered into partnership as brewers, on terms ex- 
coi>artner, an pressed in an indenture of that date. The Defendant 

lojunction was 

granted to John brought in the whole capital ; the Plaintiff Jamet 

firamobso^- '^'^^ ^ devote his whole time to the bunness, as active 
ing or inter- partner^ and the Defendant John was enabled to decline 

l^co-partner ^^^^ P^^ ^^ ^^^ active management as he should think 
in the exer- fit The profits were to be divided in equal moieties, 

joymenc of his ^^^ ^^ ^^^^ contsdned an arbitration clause, 
rights under 
the partner- 
ship articles. Disputes and disagreements occurred, which at length 

jj^°^ * arrived to such a pitch, that, (to adopt the expression 

one partner, used in the judgment of the Court,) there vras, in No- 

pJa^ to't&e^ t?«ii&<?r 1849, on the part of the Defendant, "a down- 
other, either right and absolute exclusion" of the Plaintiff from th< 
to retire or to , i» v • 
refer to arbi- partnership busmess. 

tration. The 

in answer said, ^ this state of things, the Phdntiff, James HaU, fil< 
hTthTr"*^^ his bill against John Hall, praying that the articles o^^f 
ment, but partnership might be performed : — that the Defendant 
coniritioiT* might concur in opening a joint banking account, 
to the taking accordance with its stipulations, for an account and 
Held, that the ^^^^^^^ *°^ ^^^ *^ injunction, to restrain the Defendant:^^ 
partnership « from doing any act which might obstruct or interfere? 
solved. with the Plaintiff in the active management and con* 

duct of the trade and business of the co-partnership, 
and from restricting the Plaintiff in the exercise and 
enjoyment of his rights as such co-partner." 

By his answer, the Defendant, amongst other things, 
insisted, that the partnership had been dissolved by a 




letter written by the Plaintiff on the 24th of May 1849, 1850. 
and the answer of the Defendant thereto on the 28th ^ 
of the same month. The Plaintiff's letter contained v. 

the following passage : — *' As I see but little prospect 
of any understanding while we remain together in the 
business, it will be more for the happiness and comfort 
of both that a separation should take place. I am 
willing to retire from it, and will endeavour to meet 
year views, or, should you rather have it settled by 
arbitration, if you will appoint one party, I will an- 
other ; BO that the matter may be arranged without any 
other feeling than friendship on both sides. As it is not 
my wish to lose much time before I make application 
-for other employment, your favour of an answer which 
"Way you would like it done, so as to bring it to a 
<x>nclusion,'^ &c 

The material parts of the Defendant's letter in answer 
'^were as follows: — "I concur in your opinion, and be- 
lieve, that your retirement would be most conducive to 
"that good feeling, which I would wish for the future 
"to exist between us. / tHll must make it a condition 
upon which these arrangements are to be made, that 
Ihe cash accounts between us should be first adjusted. I 
appoint Mr. Messum to attend to this business." The 
Pluntiff after this, continued to take part in the ma- 
nagement of the trade, until his exclusion in November 

A motion was now made for an injunction, ^* to re- 
strain the Defendant from doing any thing which might 
obstruct or interfere with the Plaintiff in the active 
management of the trade and business of the said co- 
partnership, and from restricting the Plaintiff in the 
exercise and enjoyment of his rights as such partner," 
&C. &c 

JEe 4 Mr. 


1850. Mr. Turner and Mr. JVelford, in support of the mo- 

tion, argued, that the Court would decree the 8pe(»fic 
performance of articles of partnership ; Etigland v. Cwrl" 
ing (a) ; and in a case of exclusion, would, before th^^^ 
hearing, interfere by injunction to prevent a oontinu 
violation by one partner of the partnership contract 
Const v. Harris (&). 

The Plaintiff does not seek a dissolution, but the 
fendant, by his conduct, is unjustly seeking to force 

Mr. Lloyd and Mr. Bcyshatoe, contra, argued, 1. 
it appeared that the Defendant had been induoed ^ 
enter into the partnership by fraudulent misrepreserr^t* 
ations of the Plaintiff as to the capital to be brou^gj^^ 
into the concern by him, and that as the Court e2^<>(^ 
cised a discretion in cases of specific performance^ ^ 
would not interfere in the present instance. 2. Thst 
the Plaintiff had himself violated the terms of t&e 
agreement ; and, thirdly, they justified the exclusioD, on. 
the ground of there having been a practical dissolutioa. 
of the partnership by the letters referred to. 

Mr. Turner, in reply, said, that there was no cross 
bill to impeach the articles, and as to the dissolution, 
he was stopped by the Court. 

Tlie IVIasteb of tlie RoLLSi 

In this case, as in all others of the same kind, the 
duty I have to perform is to me an extremely punful 
one, and for this reason : I know that I cannot exercise 
the jurisdiction of the Court, without necessarily pro- 
ducing very great pecuniary loss to both parties, and 


{a) 8 Bcavan, 1 29. (6) Turn. ^ Ruu. 496. 


peculiarly so to the partner who has brought in the 1850. 
vrbole ci^itaL But I do not know how to avoid ex- 
erdnng the jurisdiction of the Court, without at once 
declaring; that any wealthy partner may treat his co- 
partner and all his rights just as he pleases, according 
to his own arbitrary pleasure. If the Court of Chan- 
eery cannot interfere in partnership afFiurs without great 
loss to both parties, is it fitting that one of them should 
in the mean time be permitted to act in such a man- 
ner, as to make it impossible for the other to enjoy his 
undoubted rights, and insist on having his own way in 
every thing, even to the exclusion of hb co-partner. 
This sort of proceeding cannot really be allowed. 

I again repeat, that which I have on similar occasions 
observed with a view of rendering a service to both par- 
ties : — I recommend them to settle their differences as 
fiut as they can, by coming to some reasonable agree- 
ment with one another. I do not know, in the situa- 
tion of these parties, what it may be expedient to do 
hereafter, but I shall be most anxious to extend any 
authority I have to extricate them from the very serious 
difficulties in which they seem now to be involved. 

This partnership commenced on the 20th of March 
1848. The Defendant is a person of experience in the 
business of a brewer, and the Plaintiff is a young man 
and a connection of the Defendant. It appears that 
they proposed to form this partnership, the Plaintiff 
having no capital to bring into the concern. They came 
to an agreement, the terms of which are stated in the 
articles, and the partnership commenced upon that foot^ 
ing. Now the Defendant being a person of mature 
age and experience, and having furnished the whole 
capital, might probably have felt a disposition, notwith- 
standing the agreement, to assume a very considerable 



1850. authority. However that may be, it appears^ that 
disputes and differences had arisen to such a height in 
the month of May 1849, that the Plaintiff was willii^ 
and even proposed to the Defendant, for the happineas 
and comfort of both, either to retire, or to have the 
disputes settled by arbitration : he requested to know 
the views taken by the Defendant, and to be informedJE»r^ 
which way he would like the matter to be settled. Ift-SIf 
that was an absolute offer, the Defendant had nothin g^ mg 
to do but to accept it. But the Phdntiff wishing t<r"»">o 
know the view of the Defendant in that respect, opene£»^sd 
a n^otiation, stating his own willingness either to retiit^ jsre 
or to go to a reference, and he desired to know the vienv^^^-w 
taken of it by the Defendant. The Defendant, aftez^^^er 
some improper delay, says, in effect, ^^ I ooncur icK: JEn 
your opinion, and believe that your retirement wouk^JCU 
be most conducive to a good feeling between us ^^3; 
but 'I still must make it a condition upon which thim f unn 
arrangements are to be made, that the cash accounUzft^-ts 
between us should be first adjusted.^ Now, am I, 
cause this gentleman is a brewer and not a lawyer, 
consider, that, notwithstanding he imposes a pi 
" condition," this letter is to be construed as an unoorg — > 
ditional acceptance by the Defendant of the Plaintitt 1? 
absolute offer ? Counsel are compelled to argue fhln^^s 
very much against their own judgment, and I am per* 
suaded it must have been so upon this occasion, for in 
my opinion, this letter did not amount to a dissolution 
of the partnership, or any think like it (a). 

The matter afterwards seems to have gone on for a 
considerable time; neither party doing exactly what 
was right It is very immaterial to go into a minute 


(a) Kennedy v. Lee, 3 Mer. 796., Hyde t. Wrenek^ 3 Bern. 
441., Holland y. Eyre, 2 Sim. <{• 334., Lucas v. JtumeM, 4 jETore, 
Si. 194., Popham ▼. Eyre, Lofft^ 410. 

After some further discussion^ the injunction was 
granted in the following form : — Restrain the Defend- 
ant from applying any of the monies and effects of the 
co-partnership^ otherwise than in the ordinary business, 
and from obstructing or interfering with the Plaintiff 
in the exercise and enjoyment of his rights under the- 
partnership articles. 

NoTB. — The Defendant bavbg continued to exclude the Plun- 
dff &c^ the Plaintiff*, on the 8th May 1850, moved for the ap- 
pointment of a receiver and manager. The Defendant resisted the 
DOtion in person, and it not being then brought to the attention of 



emninataon of these things^ because ultimately they 1850. 
oome to a downright and. absolute excIuHan of the Plain'' 
t^, and the Defendant says^ you shall not interfere in 
th6 buoness at alL It is clear to me, that it b not 
proper that such a state of things should exist between 
partners, and I am of opinion, that the Plaintiff has 
a plain right to the protection of this Court. Having 
such a right, the Court ought not to interfere more 
than is absolutely necessary for the protection of thete 
parties. I think I may interfere to the extent of pre- 
venting the Defendant (as in the case before Lord 
EkUm) from obstructing or interfering with the Plaintiff 
in the exercise of his right under that agreement. 
Though it is clear that the Defendant ought not to do 
that which he has done, I will not go to a greater 
extent than prevent him from applying any portion of 
the partnership funds for any than the purposes of the 
partnership, and from obstructing the Plaintiff in the 
legal exercise of his rights under the deed of part- 
nership. I do not wish to go fiirther than it is abso- 
lutely necessary, but I think this absolutely necessary 
for the protection of the Plaintiff* 




the Court, that the bill did not seek a dissolution of the partner 
ship, the Master of the Rolls made the order as mioTed for. 
order was reversed by the Lord Chancellor on the 9th Decewh^^^ 
1850, on the ground that the bill did not seek a dissolution of 
partnership. As to this see Oliver v. Hamiltw^ 8 AnsirviAer, 45^ 
Waters t. Taylor, 15 Vet. 10., Harrison v. Armiiage, 4 Mad» 14^-: 
Goodman v. WAitcomb, 1 Jac, 4* W, 589,, Marshail v. Colman^ 2 Ji 
4* W. 266., Richards y. Dories^ 2 Russ.^ M. 347., Smiik r.Jt 
4 Beav. 503., Wallworih v. Holt, 4 Myl. 4- Cr. p. 635., Acrtibmr^ 
Weston, 3 iTar^, 387., Richardson v. Hastings^ 7 Bcav. 325., 
V. Fon^ 13 5^'7non«, 495. 


Feb. 22. 


Upon an 
inquiry before 
the Master, a 
party put in 
an insufficient 
Upon an ex 
narie motion, 
he was or- 
dered to pay 
the costs 

Tk/jf "R. BASCH, in this case (a) moTcd ex parte 
^^•^ an order for the taxation and payment of 
costs occasioned by the Defendants patting in an 
sufficient examination. 

TJie Masteb of the Rolls made the order (b). 

(a) See ante, 292. Beaxan^ 620., and the 

(fi) See In re Bainbrigge^ 1 1 there cited. 





BENBOW r. DAVIES. ^.^ ^ 


N 1831, John Davies mortgaged some property to a bill was, in 

the Plaintiffs. 5« K^ 

▼eraely to the 
John Davies^ by his will dated in 1837, devised the ^,/"tScen 
property to hb wife for life, with remainder to Hooper procovfeuo 
and Thomas Davies ^ in trust to sell for the benefit of trustee living 
his children; and he appointed his wife and trustees J^road. The 
executors. He died, but his will was never proved. the sath 

Order of 1845» 
The Plaintiffs filed a bill of foreclosure against the trith service 

wife, children, and the two trustees, Hooper and Thomas ^^ ^^^ ^ 


Hooper was living out of the jurisdiction, and the 
bill had been taken pro confesso agiunst him, and a de- 
cree for foreclosure had been made against the rest of 
the Defendants (a). 

Mr. Shebbeare, on behalf of the Plaintiff, now applied 
bo the Court, under the 86th Order of May 1845 (i), 
^ dispense with service of the decree. He observed that 
ilie Plaintiff was willing to wut the three years for 
zuaking the decree absolute imder the 90th Order. 

The Master of the Kolls said, he must see that it 
mns proper and expedient for him to grant this dispen* 
nation ; but that if he was satisfied, that Hooper had 
iio interest, he should make the order. After hearing 
the above circumstances, he held that he ought to dis- 
pense with the service. 

(a) See llBeav. 369. (b) Ordmct Can. p. 315. 




March 2. 


Where the 
order for 
taking a bill 
pro confesto 
has been 
made, the 
cannot be 
heard at the 
hearing, unless 
he waives all 

IN this case, the usual preliminaiy order had be 
made for taking the bill pro confesso. Hie 
was now called on. 

Mr. Turner and Mr. Rogers^ for the Plaintiff, aak^. 
for the usual decree. 

Mr. Craigy for the Defendant, against ¥^hom tK 
order had on a previous day been made, objected, I^k 
that the Defendant had not been served with the o: 
to take the bill pro confesso; 2dl7, that he had 
been served with the order to set down the cause 


with the subpcena to hear judgment. 

Brown v. Home (a), and the 82d Order of May 1845( 
were cited. 





The Master of the Bolls. 

You must waive all objections, otherwise jrou canrraot 
be heard. 

Mr. Craiff waived the objections, and the hearing- of 
the cause was then, for his convenience^ postponed for 
a week. 

(a) 8 Beai>an, 607. 

(6) Ord. Cm. 314 



Railway Company v. LEISHMAN. 

npHIS case came before the Court upon d^nurrer a railway 

-*- to the whole bill, which was filed in January contractor, 

•'on the com- 

1850. pletion of 

the works, 

brought an 

The bill, in eifect, stated, that in September 1845, the action against 

Deiemisint Leishman entered into a contract for the to^r©covCT"tLe 
completion of a certain portion of the Plaintiffs' rail- balance. By 

way, according to a specification, for the sum of 87,575/. Court, all 

matters in 
The specification described the diiferent works which were referred 

wa« to be done, and provided that all extras should be ^it^fu'r*^^"' 
paid for, and all deductions for omissions should be in powers ; and 
accordance with the schedule of prices thereunto an- empoweredto 

Qexed, and the opinion of the Company's engineer on refer back the 
n ^ .• 1 xi .• award from 

m such questions, and on every other question con- ^[^^ ^ time. 

Elected with the execution of the works, should be final '^^^ award 

was made m 
And binding on all parties ; but if any question should Juiy 1848, 

arise on the final settlement of accounts, the same ^^^i^^*^^ 

' 1850,thecom- 

should be referred to arbitration, in the usual way. pany filed this 

bill, alleging 
fraud in the 

The works were to be completed in a year, and the performance 
Pefendant was to receive payment from time to time, practised in"* 

as the work progressed, upon the certificates of the collusion with 
. . , • r xi. rt ^^^ engmeer, 

principal engineer of the Company. and disco- 

vered since 
mv the award, 
^"® and seeking 
to set aside 
the awards and have the accounts taken. A general demurrer was allowed, on 
the ground that the matter was already before another jurisdiction competent to 
reccmsider the matter and decide all questions. 




The LoNDON- 

DBRRT and 







The Defendant proceeded in the works ; certifica0^ ' 
were from time to time granted by Mr. Boss, the pri^ ^ 
eipal engineer, and payments were made on accoun 
Ultimately he granted lus final certificate of the coi 
pletion of the works. 

Upon the completion of the works, the DirectorsBr^K^rs 
being unable to get in the calls, were unable to pay th» 
Defendant. Disputes thereupon arose between th» 
Plaintiffs and the Defendant, and ultimately, LeUhmas. 
commenced two actions agunst the Company to recover 
the balance due to him on the contract 



On the 16th of March 1848, a rule of the Court 
Common Pleas was obtained, by consent, whereby 
** actions, and all matters in difference between the 
ties," were referred to arbitration, and the arbitrator 
power to appoint persons to examine the works : — 
compel production of papers, and to examine the 



** And by the like consent, it was ordered, that neith< 
of the parties should bring or prosecute any action 
suit, at law or in equity, nor file any bill or bills Er 
equity, against the other of them, or against the 
trator, touching the matters thereby referred, or a^ 
to be referred." "And by the like consent, it w; 
further ordered, that the said order should and mig! 
be made a rule of her said Majesty's Court of Commc::::^" 
Pleas at Westminster, if the same Court should ^^^ 
please, and that the said Court should be authoris^^^ 
and empowered, from time to time and as often as ik::^ 
said Court should think fit, upon the application of eith^^ 
of the said parties, to refer back any award or awar^J* 
made in pursuance of the said order, and the mattesr^ 
thereby referred or any part thereof, for the re-conei- 
deration and re-determination of the arbitrator.** 





The arbitrator made his award in July 1848, direct- 
ing the Plaintiffs to pay the Defendant 34,874/. in Oc- 

The Directors being unable to pay^ entered into an 
arrangement with the Defendant for extending the 
time, and to give debentures for a part of the debt. 


DBRRT and 






This bill all^ed^ that some months after the award, 
they discoyered that a fraud had been committed on 
them by the Defendant, and, amongst other ''things, that 
he had supplied iron '^chairs'* for the railway of a 
weight less than required by the specification, making 
a difference of 1250/., and ''that upon examining the 
condition of the several pile bridges mentioned in the 
specification, which had been constructed by the De- 
iendant, of which, portions of the materials were, by 
tiie terms of the specifications, required to be truly and 
mccnrately fitted and fastened by boltsy formed of 
"^rrought iron, it was discoyered, that several of the same 
"were not fitted and fastened by bolts at all ; and that, 
"with a view to deceive the Plaintiffs, the Defendant 
Introduced, at either extremity of the materials to be 
ao fastened, where the bolt ought to have protruded 
so as to afford space to screw on a nut for the pur- 
pose of tightening the fastening, a small piece or end 
only of wrought iron, and not extending into the ma- 
taiak more than a few inches, and little more than 
safllicient to hold the nuts, and with a view to lead 
:the Plaintiffs and others to suppose, that a bolt was 
continued right through the materials.^' 

That upon endeavouring to screw up the nuts 
attached to the piece or end of the wrought iron, 
it was immediately discovered, that the nuts would 

Vol. XII. Ff not 




The London- 
derry and 



not work, and that the same were, in fact, utterly 

The bill allied, that the statements delivered by the 
Defendant, and certified, were fraudulent, and that a 
great part of the works therein stated were never 
executed; it charged that Boss was aware of the 
frauds, and that the imperfect mode of executing th< 
works, and the inferiority of the materials supplii 
by the Defendant, was permitted and sanctioned b; 
BosSf in pursuance of a pre-concerted plan, whi 
had been arranged between them previously to th( 
execution of the contract. That, under the <3ircu 
stances aforesaid, and owing to Bass having been 
party to, or otherwise conniving at the fraud so 
tised upon the Plainti£& by the Defendant, the 

was, as the Defendant was well aware, wholly conoeal 
from the Plaintiffs, and that the Plaintiflb had 

means of ascertaining, and were, in fact, induced not 
inquire respecting the works mentioned in the stat^ 
ments furnished to Ross, 


It charged 'that the arbitrator was also ignorant 
these facts, and that the accounts were very intrica*^ 
and complicated. 

The bill was filed against Leishman alone, and pray 
a declaration, that the award had been obtained 
fraud : — that it might be delivered up : — that the 
counts might be taken between the parties, and for 
injunction to restrain the Defendant from issuing 
attachment under, or otherwise enforcing the award, 
taking or prosecuting any proceedings under die r 
of Court, &c. 





To this Inll the Defendant filed a general demarrer> 
for want of equity. 


Mr. Roundell Palmer ^ Mr. C. J. Selwyn, and Mr. 
MeUiihi in support of the demurrer. 

This Court cannot interpose^ for the reference being 
oade under an order of a court of law, the jurisdiction 
»f this Court to interfere against the award is the same 
us it would have been upon a verdict of a jury ; Chuck 
r. Cremer{d). "What is there," says Lord Cottenham, 
^ to give to a court of equity any peculiar jurisdiction 
a case of a judgment founded upon such an award, 
rhich it would not have had if it had been founded upon 
i verdict ? ^ And again he says, — " In all these cases 
namely, failure from error of the Judge or jury, or in 
lie conduct of the cause) the Court of law has power to 
x>rrect the error, if the party takes the proper steps to 
obtain such redress." In Harrison v. Nettleship{b\ Sir 
L Leach held, that a court of equity has no jurisdiction 
to relieve a Plaintiff against a judgment at law, where 
the case in equity proceeds upon a ground equally 
available at law and in equity, unless the Plaintiff can 
establish some special equitable ground for relief. 

Here, by the terms of the order of reference, the 
court of law has authority, as often as it thinks fit, to 
refer back the award for the reconsideration of the arbi- 
trator. That award ought not to be interfered with ; 
for if it be right, then it should stand ; but if wrong, 
the court of law has ample authority to correct it. 

The clause referred to has been introduced into all 
such orders of late ; and this seems specially framed to 


(fl) 2 Phillipt, pp. 482, 483. (5) 2 MyL ^ K. p. 425. 



The LoNi>oN- 

DBBRT and 









The London- 
derry and 





meet a difficulty experienced in Nickalls v. Warren (j^ 
Again, it is one of the terms of the reference that 
bill in equity should be filed. 

[ T/ie Master of the Eolls. 

There is very great difficulty in allowing partiea 
contract themselves out of the protection of this 
The greatest injustice might result from it(i).] 

Where the reference is under the statute 9 &^ 
W. 3. c. 15., any application to set aside the awac^"^^ 
must be made before the last day of the next term ; bc^ 
a court of law is not so limited by time, in the ca^^' ^ 
of an award founded on a submission by rule of Court ^^^ ' 
Rogers v. DalUmore (c). They also referred to th--^-^ 
3 & 4 »^. 4. c. 42. s. 39. 

Mr. Hetherington (in the absence of Mr. Tumer^^J*'^ 
contrd, in support of the bill. The case alleged is one o:-^ -^ 
fraud peculiarly within the jurisdiction of a court or 
equity. All that has been done is tainted with fraud, 
and accomplished by collusion with the servant of tho 
Company, and was not discovered until after the a 
had been made. 




An application to the Court of Common Pleas woul 
not be entertained after such a lapse of time ; but thl 
Court is not bound by any such a rule or limitation, i 
the instance of latent fraud subsequently discovered. 

lie cited Ranger v. The Great Western Railwa^;^^^ 
Company (d), Macintosh v. Tlie Great Western RaUwa^,,^ 
Company {e\ Waring v. Tlie Manchester §'c. Raihoa^^^^^^y 
Company {(ji). 

(a) 2 DowUng j- Loumdet, 

{b) Jacob, 305., 1 ram. 4- R. 

(c) QTawU. 111. 
(</) 13 57iNOfu, 36& 
(e) \HalliT.^\. 
(g) 7 Harcy 482. 



The Master of the Rolls. 

I must allow this demurrer^ but certfunly not on the 
ground that there is no relief against fraud in thia 
Court The case is^ no doubt^ one of very great im- 
portance^ if considered simply with reference to the large 
sum at stake ; but the more important question really is^ 
whether parties having submitted matters to arbitration, 
under the sanction and jurisdiction of a coiurt of law, 
ure at liberty, at any time, to withdraw from that par- 
Scalar jurisdiction, and to bring the matter under the 
sonfflderation of this Court. 


The LoNDON- 

DBBRT and 






The Defendant was employed to execute certain 
reiy important works for the Plaintiffs, the London* 
lerry and Ennishillen Rulway Company, and he entered 
ato a contract for that purpose on the 29th of Sep- 
ember 1845, the terms of which have been stated. 
rhe work, I infer, was performed within the time 
igreed upon, — namely, before the 29th of September 
L846. The Company were then to enter into posses 
lion of the works, and everybody engaged in the ser- 
irice of the Company had, at that time, the oppor- 
tunity of knowing, what was the state of the works. 
It is not alleged on behalf of the Company, that there 
was, then, any fault found with the charges made, or 
with the work done ; on the contrary, it is rather sug* 
gested that they were then satisfied. They were not 
left in the dark as to the real state of the work, and 
they were satisfied with the appearance of it. This 
being the state of the case in 1846, next came the 
question of payment. The Plaintiffs represent in their 
bill, that they had a difi&culty in raising from their share- 
holders the calls necessary for the payment ; and it ap- 
pears very likely that this was one of the causes of this 
litigation. The balance not being paid, the Defendant 





The LoNDON- 

DBRRY and 


Bail way 



brought two actions to recover it. In that state of 
circumstances^ I have no doubt^ nor has any doubt 
been expressed upon the law, that the Plaintiffib, if any 
fraud had been practised on them^ might then have 
come into this Court at once^ if they thought fit. I have 
bad authorities cited to me for that, while the contrary 
has not even been alleged. 

However^ the action being brought^ the Company 
and the Defendant LeUhman thought fit to have the 
matter settled by arbitration, and there was a reference 
of all the matters in difference between the parties to 
^e arbitrator, who was to make a final award. Power 
was given to the arbitrator to employ persons to ex- 
amine the works ; and they were accordingly examined, 
I suppose to ascertain whether they had been rightly 
and properly done. Is it not in vain to say, that there 
was any excessive confidence in the Defendant, and in 
his statements respecting the work done, when this 
special power was given to the arbitrator? Not only 
had the arbitrator this power, but he had also power to 
call for all books, papers, and writings, speidfications, 
vouchers, and documents, that he might require, fo 
the purpose of enabling him to judge and decide on th 
questions. The Plaintiffs say, that they discovered thi 
alleged fraud at a subsequent time ; at any rate 
discovered it before the award was carried into execu 

This award contains a provision which I am very 
glad to hear is common in these cases now, — that the 
Court shall be authorised, from time to time and as 
often as the Court shall think fit, upon the application 
of either of the parties, to refer back the award &c. 
Now has any application ever been made for that 
purpose ? I have not heard of such a thing. That it 
might have been made cannot be doubted, and if it had 



leen made, and the award had been referred back, there 
an be no doubt but that the arbitrator would have 
lad all the powers conferred upon him by the agree-* 
Dent and the order of reference. What occasion, theui 
Kras there to come here? It is said that the Plain- 
iffs were not in time to make the application, and 
that courts of law allow but a short time for that 
purpose. I apprehend, however, that the result of the 
caaes cited is this : that, usually and ordinarily, a court 
of law requires the application to be made in a short 
interval of time; but where the case is special and 
particular, and one requiring further relief, it may be 
obtained in the court of law, if that Court should think 
it proper. Even if these gentlemen had been able to 
make out, that they had been prevented, by the fraud 
and collusion of the Defendant and their own agent, 
from making that discovery, still the arbitrator had 
liberty to examine both the parties and witnesses, and 
all the means which could be found, for the purpose 
of giving to him a full power of examining into every 
question between these parties, were provided by the 
order of the reference. 


The LoNDON«>' 

DBRBT and 





The arbitrator proceeded upon the reference, and on 
the 28th of July^ not a very long time afterwards, he 
made his award, and by that award he found no less a 
sum than 34,874/. due to Mr. Leishman. This award 
was made on the 28th of July 1848, and as I col- 
lect from the bill, the Company had then been in 
the use and occupation of the works from the month of 
September 1846 ; and it is now alleged by this biU, that 
some time after all this, and when the award had been 
made, though not carried into efiect, the Plaintiff 
discovered, that a fraud had been perpetrated on them 
by Mr. Leishman^ in collusion with their own principal 
en^neer, who, however, is not made a party to the 
bill^ though charged with this collusion. I cannot 





The LoNDON- 

OBBRY and 


doubt but that, if the case were a proper one, the 
of law would have attended to it, and that relief woul 
have been afforded. If the Plaintifb have been advise^ 
that they could not have relief in the court of la 
I suppose they must have been so advised, becau 
the facts were not such, as to leave them any hope th. 
any application would succeed. If that be the 
is there any reason why they should succeed in a 
of equity ? If they have chosen another juiiadictio: 
instead of coming into this Court at first, and 
agreed to a reference and submitted to an order 
a court of law, is there any reason why they are 
be relieved from the consequence of what they ha 
done, by the exercise of the equitable jurisdiction 
this Court ? 

It must not be thought that I am here proceedin 
upon the notion that this Court will not relieve in 
case of fraud, if that fraud be made out. I sav 
this Court will not, on an all^ation of fraud, i 
in a matter where another jurisdiction has been adopted 
— where the matter has proceeded under the jurisdictio: 
of another court, and where there is nothing to she 
that upon an application being made to that courts i 
has not full jurisdiction and power to grant to th 
Plaintiffs every proper relief. 

As I observed in the course of the ar^gument, 
place DO weight upon that portion of the agieemen- 
for a reference, which provides, that the parties shall no 
come to this Court; but I found myself on lliis: — t 
the agreement has provided the means for doing 
feet justice between the parties, and if perfect j< 
^ has not been done, it is because the parties now 
plaining have not thought fit to resort to those 

I must allow the demurrer* 







tLEY, on behalf &c., v. The BIRKENHEAD, yov.l2.\3,U. 
Lailway Company. 

HIS case came before the Court upon demurrer to In an amalga- 
the whole bUl. The Plaintiff sued on behalf of ^jfcompiiy, 
self and all others, the holders of shares of 31/. each, there were 
he Company, except such, if any, of the Defendants ^p share- 
ere holders of such shares. The effect of the state- holders. A 
its of the bill was as follows : — By four several of one cla»8 

Kailway ^^^ » ^*^* ^^ 

behalf of him- 
Lnd all others of the class, stating that an unfair and unnecessary call had been 
iptly made on that class, which some had paid, but that the Plaintiff had refused 
iy it, and praying that an account might be taken to asce tain the propriety and 
9Mty of the call, and for an injunction : Held, that th s was an attempt to 
ce this Court to interfere in the internal management of the affairs o( a con- 
ng company, and a gencnd demurrer to the bill was allowed. 
eld, also, that the shareholders of the same class as the Plaintiff who had paid 
sail and the other two classes of shareholders ought to be represented. 
n demurrer, his Court adjudicates on the statement of a Railway Act as aU 
d in the bill, and will not go out of the record. 

iToL. XII. G g 








and Cheshire 




Railway Acts (a)y certain railways were authorised 
be made, and by an Act of Parliatneni, passed in ih». 
year 1847 (b), tbc several railway companies becam- 
incorporated with the Birkenhead, Lancashire, an*. 
Cheshire Junction Railway Company, and the ciq[ut^ 
became vested in that Company, in shares which wens' ^s 
made to consist of three classes: viz. shares of thczC^ 
nominal value of 27/. 10^. each, in respect of whi< 
nothing was due from the holders: shares of 
nominal value of 22L each, in respect of which 6L 
was due, and shares of the value of 31/. each, in 
of which 21/. was due. 

The different shareholders were entitled to profits, in 

proportion to the sums actuaUy p^d on their sh 
The directors of the Company, as newly constitni 

were elected according to the provisions of the Act, a a d 

a call of 1/. 5s, per share, payable in October 1847, ws^^ 
made in respect of the shares of 31/. each, and a call of 
SL, payable in December 1847, was made in respect of 
the shares of 22/. each. 

In May 1848, the Directors made a further call of 
2/. 5s. per share, payable in June 1848, on the slukX^ 
of 31il each. 

The bill alleged, that James Bancroft and other 
directors formed a scheme to conduct the affidrs of tlie 
Company, without regard to the general benefit of Ae 
shareholders, and in such a manner as to benefit the 
holders of the shares of 27/. lOs. and 22L each, to Ae 
prejudice and injury of the holders of the shares of SV 
each ; and that they took measures to obtain a majon' 

(fl) 7 FT. 4. & 1 Vict. c. cvii., 
3 & 4 Vict. c. ii., 8 & 9 Vict, 
c. xcix., 9 & 10 Vict. c. xcL 

(h) \0&\\Vict.c. 



in the Board of Directors, to depreciate the market 
▼alue of the shares of 31/. each, and cause an alarm 
amongst the holders of such shares, with a view to 
induce them to consent to certain disadvantageous terms, 
(which they intended to propose), for the relinquishment 
or modification of the interests of such shareholders, for 
the benefit of the holders of the shares of 27/. 10^. each, 
and 22/. each. An attempt to effectuate such scheme 
W18 alleged to have been made at a general meeting 
held in November 1848, and afterwards, by causing a 
hill to be introduced into parliament, to the effect 
mentioned in the bill : — that an opposition being made 
by holders of the shares of 31/. each, a meeting was 
held on the 10th of February 1849, and a resolution 
was passed, to make a call of 10/. per share in respect of 
the shares of 31/. each, one half of such call to be paid 
on the 16th of Marcky and the other half on the 16th 
of April then next. 









The bill alleged, that this call of 10/. was not re- 
quired for the execution of the works of the Company, 
which were intended to be executed, but was made 
only to intimidate the holders of the shares of 31/1 

And it was further alleged, that in consequence of 
c^ertain works being abandoned, the amount of the call 
^^stoally required was not so great as the call which had 
k>een made. But that the call having been made, cer- 
tain of the holders of shares of 31il each, who had not 
[Mud up the money due upon them, had made the pay- 
^ments called for ; but others had refused and still refused 
fa> do so, alleging the payments not to be required 
Cor the purposes of the Act. The bill set forth state- 
Ynents, from which it seemed intended to be inferred, 
^timt the calls were unnecessary, and that the estimate 

Gff 2 of 








aod Cheshire 




of liabilities (suggested as an excuse for the call) had 
been exaggerated, and that the real motives of the 
Directors in making the calls, had been to injure ihc 
holders of the shares of 31/. each, by compelling them 
to consent to a relinquishment or modification of the 
interest which they had in their shares* 

It charged, that the respective holders of shares 
of 27/. lOs. each, and 22/. each, had artfully contrived 
to obtain a majority of votes over the holders of shares 
of 31/1 each, and that in consequence of the existence of 
such majority, most of the holders of shares of 31i each 
had considered it useless to attend, and had not attended 
any meeting of the Company since August 1848; and 
that the proceedings at all subsequent meetings of the 
Company had been whoUy controlled by the holden of 
shares of 27/. lO^. each and 22il each. 

The bill stated, that the Plaintiff, who was the holder 
of 487 shares of 31/. each, and others, had refused to 
pay the call of 10/. thereon, and the Directors had 
threatened to bring actions against them, and to forfeit 
their shares; but that certain of the 31/. sharcholdei^ 
had paid under protest, and insisted on having the same 

It alleged, that part of the lines had been completed, 
but that the remainder had been abandoned, and that 
the compulsory powers for making it had expired. 

The bill was filed by the Pkiintiff, on behalf of the 
31/. shareholders, against the Company and the ten 
directors alone ; but it alleged, that the Z\L shareholdeia 
were very numerous, and could not be made parties, 
but that their interests were identical with those of tbe 
Plaintiff; and as to the 27/. 10^. and 22/. shareholders, 




fbe bill charged as follows: — ** That the number of 
holders of the said shares of 27L lOs. each and 22L each 
were so great, and their rights and liabilities were so 
subject to change, by death and otherwise, that it would 
not be possible, without the greatest inconvenience, to 
make them parties to this suit, and so to do, would 
render it impossible to bring thb suit to a termina- 
tion ; but their interests were identical with the in- 
terests of the persons, Defendants thereto, all of whom 
were holders of some of the shares of 27/. lOs. each, 
and 22L each." 






and Cheshire 




The bill prayed, that it might be ascertained, under 
the direction of the Court, whether any and what part 
of the call of 10/. per share was required for any of 
the purposes to which monies to be raised by means of 
the shxures of 31/. each, were lawfully applicable: — 
and that the Defendants might, thereupon, be per- 
petually restrained, by 'the injunction of the Court, 
from prosecuting any proceedings against the Plfdntiff, 
or those for whom he sued, for enforcing payment of 
such call, other than such part as might be so required, 
and from declaring, confirming, enforcing or otherwise 
acting upon, any forfeiture of any of the shares of 312. 
eacb, in respect of any part of such call, other than 
auch part as might be so required, and that any part of 
auch call which had been paid, other than such part as 
might be required, might be repaid. And that in the 
mean time, and until the part so required should be 
ascertuned by the direction of the Court, the Defend- 
ants might be restrained from prosecuting any action 
in relation to such call. It also sought to restrain the 
Defendants from making any further call, and declaring 
any forfeiture, or commencing any action in relation to 
any such further call, and for further relief. 





aod Chbshire 




1849. To thia bill, the Defendants demurred for want at 

equity, and also, on the ground that the 27L 10s. 
22L shareholders or a sufficient number of eadi 
BiRKTOHBAD ^ represent the remainder, were necessary parties. 


Mr, Turner and Mr. Glasse, in support of the 
murrer. The subject of complaint relates to mattersK-: 
concerning the internal management of the Company^^ 
and as to these, the Court will not interfere ; Fa$s -wr- 
Harhottle (a), Mozley v. Ahton (b). Lord v. JTie Coppea^ 
Miners^ Company {c). The matter is such, that 
majority of the co-partners would bind the minori 
Const V. Harris (d) ; and it is capable of confirmatit 
at a general meeting of shareholders. The Plaintiff 
bound, at first, to adopt the remedies provided by 
partnership contract; Waters y. Taylor (e)z and 
the opinion of the shareholders at a general meetio^ 
The Exeter and Crediton Railway Company v. BuIler(jisS^)> 
Here it appears, that the Plaintiff and others t or 
whom he sues, have purposely abstained from attendiiHK:^ 
and voting. The case is similar to Vetts v. JTie Nt^^r' 
folk Railway Company (Ji)^ where, to a bill filed, ^od 
the ground that proposed calls were unnecessary, a 
demurrer was allowed by the Vice-Chancellor KmyAi 
Bruce. The accounts asked are inconsistent with tbe 
continuance of the Company, and, in order to dissolve 
and wind it up, all the partners must be parties; 
Evans v. Stokes (t). 

The bill is also defective as to parties, those 3U 
shareholders who have paid, and the other classes of 


(a) 2^afv,46l. 497. 

(b) \PhiiL190. 

(c) 1 HaU Jf Tw. 85. and 2 
PWl. 740. 

(d) Turn, 4- R, 496. 

(e) J 5 Vei. 10. 
(g) 5RaawayCa,2\\. 
(h) 5 Railway Ca. 467. 
(i) I Kern, 24. 



thareholders of 27/. 10^. and 22L have interests opposed 
to that of the Plaintiff, and he, thereforOi cannot 
properly represent them. Some Defendants ought to 
be added, who may exclusively represent those interests ; 
Harmer v. Gooding (a)y Richardson v. Ha8tinff8(b), Mil- 
tank V. CoUier (c). 

Mr. R. Palmer and Mr. F, H. GoJdsmidy in support 
of the bilL This is not a bill to interfere with the in- 
ternal management of the Company, but one to prevent 
the commission of a fraud upon a particular class of 
shareholders. The Directors are trustees, and the 
Court has always held that it has jurisdiction over a 
corporation, as an individual, to control the corrupt ex- 
ecution of a trust; Dummer v. The Corporation of 
CUppenham (d). Relief was granted against a corpora- 
tion in respect of such acts, in the case of Colman v. 
The Eastern Counties Railway Company {e)^ and a 
Company of this sort is not to be regarded as a 
common partnership, Cohen v. fVilkinson(y), which is 
similar to the present The act complained of ^^ is 
not within the common contract " between the parties, 
andj therefore, the majority cannot bind the minority ; 
JEs parte Morgan (h). It would be useless to attend 
a general meeting, where the majority, having an op- 
posite interest, have previously determined on con- 
aolting! their own] interests and on a fraudulent exer- 
cise of their l^al powers ; besides no general meeting 











(a) IS Jurist, 4m. 

(b) 7 Beav. 301. 
I (c) 1 CoU. 237. 

(lO 14r<r<.245. 

(e) 10 Beavan, I.; and see 
Bagshaw v. Eastern Union RaU- 
foogf Company^ 7 Hare, 114. and 
2Hall4r Tw. 201. 

Gg 4 

(g) Antk, 125. 138., 1 HaU 4> 
Tw. 554., and 1 Mac. ^ Gor. 

(h) 1 HaU 4- Tw. 320., and I 
Mac. 4- Gor. 225., and \ De G. 
4* Sm. 750. 


1849. could rescind the call, 8 & 9 Vict c. 16. s. 90., if the 
^iL^ matter be within the legal powers* 


The The bill is properly framed, so as to exclude the ob- 

BlRKENHBAD, . . ^ « . . „ , , 

Lancashire, jection of want ot parties: it alleges that the parties are 

andCaisHiRB identified in interests; Apperly v. Page{a)j Preston v. 

Railway The Grand Collier Dock Company (i), Wilson v. Stan- 

Mr* Turnery in reply. 

The Master of the Solls. I will consider the 

1850. ^^^ Master of the Rolls. 

Ion 19 

This bill proceeds upon the notion, that it is w^ thi i ' ^ "^ 
the jurisdiction of this Court to take the accounts, an(=^^ ^ 
make the enquiries necessary for the purpose of asoer-' 
taining, whether, under the circumstances to which th»- 
Company is reduced and in a continuing concern, it 
proper, in the due management of the affairs of 
Company, to raise money by way of call from 
shareholders whom the Plaintiff assumes to represen 
and who have neither paid up their calls, nor taken 
trouble to attend the meetings, in which the question 
making such calls was discussed. It appears to m 
that this case can only be considered as an attempt t:^ 
induce this Court to interfere in the internal manage-* 
ment of the affairs of the Company, and to take upon 
itself to determine a question, which might well and / ."^'^ 
ought to be determined by the shareholders themsdyes f ^^ 
at general meetings. The only foundation for relief, in I ^i . 
this Court, is the allegations that the calls, in the cir» I ^^ 

cumstances 1 xi. 

(a) 1 PhUL 779. (c) 2 Colly. 629. 

{b) l\ Simons, 327. 



comstances which have happened, are not wanted^ 
and that the Plaintiff and other shareholders of the 
class to which he belongs are or are likely to be de* 
firauded, by a scheme formed by the other shareholders, 
seeking in some way to benefit themselves or the other 
classes of shareholders, to the prejudice of the Plain- 
tiff, and those for whom he sues, and proceeding to 
enforce calls in pursuance of such alleged fraudulent 


The . 






The bill contains many allegations of fraudulent and 
improper motives : an intention to prejudice one class 
of shareholders for the benefit of the others. But these 
allq^tions do not rest on any specific facts sufficient to 
support the imputations ; and the Plaintiff, so far from 
stating that any attempts have been made to bring 
the matter under the consideration of the shareholders 
at large, or to procure any improper resolution of the 
Directors in the management of the ai&irs of the Com- 
pany to be rescinded, states the contrary, and that most 
of the shareholders for whom he sues have not attended 
the meetings, or made any attempt to correct any error 
which may have been made. 

It docs not appear, from any facts distinctly alleged 
in this bill, that the holders of shares of 31/. each 
have made payments in proportion to the holders of 
the other shares, or that they are not now more in 
arrear than the others, or that it may not be right and 
just to make and enforce payment of the calls com^ 
plained of, either for the purpose of carrying on works 
which it may be necessary to complete, or for the pur- 
poses of paying debts or answering liabilities which 
must be provided for ; and the Plaintiff, not thinking fit 
to call or attend meetings, in which any questions of 
this sort may be properly settled, prefers coming into 










und Cheshire 




this Court, for an enquiry to ascertain whether any 
part of the call for 10/. is required, for the purposes to 
which the monies to be so raised are lawfiillj appli- 
cable, and for an injunction to restrain any proceedings 
at law to recover the amount of such calls. 

It is indeed alleged, that there is an intention to 
abandon part of the works, for the completion of which 
the powers were granted to the Company. This may 
be quite unauthorised, but it is not sufficient to shew, 
that the enforcement of the call may not be necessary 
for lawful purposes, and, even supposing the Phuntiff 
to have some well founded reason to complain of what 
has been done, it appears to me that he cannot have the 
remedy for which he asks. 

This bill contemplates the continuance of the Com- 
pany, for at least some of the purposes for which it was 
incorporated, and the maintenance of some of the works 
which it was authorised to make, and it would, I think* 
be impossible for this -Court to entertain jurisdiction in 
such a case as this, without assuming authority to in- 
terfere in the internal management of all companies 
and partnerships, whenever a question arose as to the 
proper amount of a call required for the lawful purposes 
of the Company. 

I am therefore of opinion, that the Plaintiff is not 
entitled to any relief upon this bill, and that the de- 
murrer for want of equity must be allowed. 

I think also the bill is defective as to parties, in 
suing on the behalf of all the holders of shares of 31L 
each, as well those who have paid the calls as those 
who have not, and in not sufficiently alleging, that the' 



holders of the other shares are represented by the De- 

Mr. IL Palmer asked leave to amend. 

The Master of the Bolls refused it 








During the argument, 

Mr. IL Palmer proposed to read clauses in the act 
not set out in the bill, allying, that it was enacted 
that the act should " be a public Act and should be 
judicially taken notice of as such" (a). 

Mr. Turner opposed this. 

The Master of the Solls. 

It has been determined, that you cannot go out of 
the record, and that even if the act were inaccurately 
stated in the bill, you must take it, upon demurrer, 
as it is stated. 

(a) 10 & n rtctc. ccxxii. «. 36. 




March ]» 2. 

A bill was 
filed by a 
on behalf &c., 
to prevent the 
making a part 
only oi* the 

doning the 
rest, and for 
an indemnity. 
There were 
several classes 
of sharehold- 
ers. Held, 
that it was 
not necessar}' 
that the se- ' 
vend classes 
should be 
severally and 
on the record. 

DUMVILE, on behalf &c, v. The BIRKENHEAD, 
Railway Company. 

A N Act of Parliament (a), passed in 1837, autho- 
'^^ rised the making of a railway from Chester to 

A second act(&), passed in 1846, authorised another 
Company to construct a junction railway, uniting the 
first-mentioned railway with the Birmingham and 
Manchester Railway. 

A third act(c), passed in 1847, amalgamated the 

* companies, and converted the shares in the new or 

amalgamated Company into three classes, namely, those 

of 27/. 10^., those of 22/., and those of 31/. respectivelj. 

Dwnviley the Plaintiff, was owner of forty 31i 
shares. He filed the bill ^^ on behalf of himself and all 
other the shareholders or proprietors of shares " in the 
amalgamated Company, except the Defendants, against- 
that Company and the Directors thereof, alleging, in 
substance, that the Directors, being unable, for want of 
funds, and by reason of the expiration of their com- 
pulsory powers to complete the junction line, had re- 
solved and determined to abandon the whole forty-six 
miles of it, except oidy seventeen miles ; and that they 
were raising, by calls and loans, a large sum to com- 
plete this fraction of the whole undertaking. 


(a) 7 H^. 4. & I Vict. c. cvii. 
(6) 9 & 10 Vict. c. xci. 

(c) lO&ll Fief . c. ccxxil 



The bill stated, that he had paid 102. per share on 
118 shares, being the full amount called to the end of 
L849 ; but that the Directors had since made calls of 
lOL a share on the 31 2. shares, and 2/. a share on the 
i2L shares, for completing the seventeen miles of the 
nil way; that the Directors had threatened to make 
urther calls, and to forfeit the PLuntiff's shares not 
mid up, and had commenced an action agamst him to 
recover the call of 10/. per share. 









The bill stated, that at a general meeting, the Di- 
rectors were authorised to borrow 200,000/. for those 

It charged, that the shareholders were very numer- 
ous, and it alleged as follows : — " That upon the Ist 
of January 1850, all the proprietors of all classes and 
shares in the Company became entitled to share the 
profits of the Company equally, in the proportions 
of the amounts actually paid up on their shares, and 
accordingly, the proprietors of the shares of 27/. IO5. 
each had no interest in requiring any further calls to 
be made or paid up on the said 317. shares and 22/. 
shares respectively, except for the lawful purpose of 
such further calls being applied in making and con- 
structing the whole of the said lines and works of the 
Company, as authorised by parliament, which was not 
intended; and that even if the proprietors of the 
shares of 27/. IO5. each had (which they had not) any 
separate or distinct interest in having such further 
calls made and paid up, they and their interests, in 
that respect, were sufficiently represented in this suit 
by the Defendants, the Directors, who were respectively 
holders and proprietors of some of the shares of 27/. lOs. 
each in the Company ; that the illegality of the afore- 
said determination of the said Company and of the 












Directors thereof to abandon the oonstniotion 
of the parliamentary lines and murks, and to make 
the nulway from Chester to Walton Bridgi tmkf^ and 
to do^ for that purpose, the other acts herdn men- 
tioned, was of a nature which affected, in oommony the 
interests of the Plaintiff and all other the proprietors 
of shares in the Company, and that the determination 
of the Directors was incapable of being lawfully exe- 
cuted by the Company, or authorised or sancticmed by 
the proprietors of shares in the same, and that the 
Pliuntiff had always dissented from and had never con- 
curred in the aforesaid illegal proceedings of the 

The bill shewed that part of the works oompliuned o 
had been executed. 

The bill prayed a declaration, that it was not wi 
the powers of the Defendants to make the portion 
the railway only, otherwise than for the purpoee 
completing the whole, or to apply the funds or 
the calls, or raise money for that purpose; and i^ 

prayed that the Directors might be decreed to inden 3 

nify and save harmless the Company and the fun< 
thereof, from all the consequences of these illegal 
and proceedings of the Directors, and for an injunctios 
against these several acts. 


To this bill the Company demurred for want of 
equity and want of parties. 

Mr. Roupell and Mr. Glasse, in support of the de- 
murrer. As to the want of equity, this case differs 
from Cohen v. Wilkinson (a) ; for in that case the works 


(a) Ante, 125. 138., 1 HaU4^ Tw, 55L, 1 Mac. 4* Chr. 481. 



had not been commenced, but in the present a con- 
siderable progress had been made. 

[ The Master of the Rolls. That argument will 
not help 70U; for in Cohen y. Wilkinson {a) the Di- 
rectors had entered into contracts. There have also 
been several authorities since, where works had been 
completed to a considerable extent] 

2. There is a misjoinder of Plaintiffs. The Plaintiff 
sues on behalf of all, and the bill seeks to restrain 
the call of 102. per share ; while there are persons who 
baye already paid it, and who, therefore, have distinct 
and opposite interests to that of the Plaintiff, who pro- 
fesses to represent them. It is said, that this class is 
represented by the Directors ; but that cannot be, for 
the Directors are called upon to indemnify that very 
dass. The bill, also, professes to represent those share- 
holders who, at a general meeting, have sanctioned the 
intended loan, and who are bound by their acquiescence. 
This again is irregular in point of pleading. 

■3. There is an imperfect representation of interest. 
There are three classes of shareholders, namely, the 
21 L \Os.y 22/., and 31/. shareholders. They have op- 
posite interests, and should, therefore, be represented 
by distinct and different persons. This was held in the 
recent case of Bailey v. The Birkenhead Sfc, Railway 
Company {b)f where the bill was filed by Bailey, on 
behalf of himself and the other 31/. shareholders; and 
it was held, on demurrer, that the suit was defective 
for want of parties, ^^ in suing on behalf of the share- 
holders of 31/. each, as well those who had paid the 










(a) Ante, 125. 138., 1 Hail^ 
T\if.65^ 1 Mac, 4> Gor.4Sl. 

(b) Ante, p. i33. 


1850. calls as those who had not ; and also defective in no 

zf^^^^"^ alleffing, as it ought to have done, under the circum 

V, stances, that the holders of the other shares were dul 

Birkenhead ^^^ fully represented by the Defendants.'' 

Junction ^^" '^^^^^^ ^^^ Mr. Cole, contra. As to parties, th 

Railway last case cited illustrates the distinction. There the 

^"P""-" was a question of internal management, in which tw< 
classes of shareholders had different interests ; but hei 
the Directors are doing acts altogether illegaL It is 
therefore, to the common interest of all classes, tha^ 
they should be prevented doing so. Colman v. Thm 
Eastern Counties Railway Company (a) and Preston 
The Grand Collier Dock Company (i) decide the poin 

Mr. Roupell in reply. 

The Master of the Rolls. 

In cases of this nature, it is very far from the dis — 
position of this Court to assist objections of this Idn 
except in cases where, according to the interests o 
every class, justice requires it. The difficulty wit 
which suits of this description are sustained at all, 
so exceedingly great, and the powers entrusted to th 
Directors are so apt to be misapplied, when such com 
panics get into difficulties, that the Court is exceed — 
ingly desirous, if it can, of overcoming every objectioc^ 
which is merely technical. 

If I were even of opinion that tliese objections^ or 
any of them, ought to be sustained, the only efibct 
would be, that I should allow an amendment of this 
bill, and it might be brought forward again in the 
course of a few days in a different shape, and this 


(a) \OBeavan,\. {h) \\ Smom.^1. 



would be very far from advantageous to any body, 
though occasioning a great additional expense and a 
-delay not worth purchasing. 

As to the first question^ — I must adhere to the 
rule which has been adopted in regard to public com- 
panies. They obtain their vast powers from Parliament, 
for the completion of certain specified works, and are 
not to be allowed to apply the monies which they have 
raised, or the powers which have been given them for 
those purposes, for any others than those for which they 
were originally granted. It must be so in the present 
instance. The Directors must apply to the Legisla- 
ture for additional powers, unless, upon appeal, the 
Lord Chancellor or the House of Lords should other- 
wise determine this case. In this Court, I cannot de- 
cide otherwise, after the decisions already made here 
and elsewhere on that subject If those decisions be not 
known (though I think they really must be) amongst 
persons engaged in railway affairs, the sooner they are 
informed of them the better, because they put themselves 
to vast expense in striving against the consequences of 
that rule of law, which they must either submit to or 
get altered. 

Now the object of this bill is, to restrain an act, 
which this Court has determined to be illegal, and to 
call on the Directors, under whose management that 
act has been done, to indemnify those who are likely to 
suffer by it Is it necessaiy to have that distribution 
of parties which is contended for? Is it not rather 
to be said, that, even if a party has voluntarily taken a 
part in doing an illegal act, he may be heard, on an ap- 
plication to this Coiurt, to put an end to it, and to have 
an indemnity. I ought not to be particularly minute 
as to the distribution of parties under such circum- 

YoL. XIL H h stances 
















to «*?' 

« for »»® ^ BtJS*»»* 
'l**^*^"'"' •- 








ft c»*® " -*iee «»® *^ ,roL 






COCKS V. PURDA Y. ja«. 31. 

rr^HE Plaintiff was the assignee of a musical com- The Court 

-*• position, called the " Die Elfin Waltzer," which p'^y f^^ 

had been composed by a foreigner, and published in ^ undertak- 
—,_,,*_ _- mgto make 

Htnffiand and abroad, contemporaneously, on the same an admission 

^y^ upon a trial at 

•^ * law, the law 

on the point 

On the 19th of Januari/ 1848, the Plaintiff ulti- fhSS'''' 
mately established his right at law agidnst the De- taking, been 
fendant, the Court of Common Pleas (a) having state ofun- 

decided upon a special case in his favour. certainty, by 

reason of 


A bill having been filed in this Court in June 1848, ^pcisions of 
° different 

respecting both the " Die Elfin Waltzer " and flnother Courts. 

publication called ''The Elfen Song,'' the music of 

which was alleged to be similar; an injunction was 

granted (the Defendant not appearing) on the 6th of 

July 1848, restraining the publication of both. 

The Defendant put in his answer, and on the 11th of 
November 1848, moved to dissolve the injunction as far 
as related to '' The Elfen Song," he then alleging, that 
the verdict at law had established the legal right 
merely to " Die Elfin Waltzer," but not to " The Elfen 
Song,'' the latter of which not being then in contest in 
the action. He also insisted, that the foundation of 
both was an old Stoiss air, by a variation of which, 
both parties had produced a different result The 
Master of the Bolls was then of opinion, that the case 


(a) See Co<^t v. Purday, 5 C, B. Rep, 860. 

Hh 2 


1850. was doubtful, but that he ought to continue the in- 


Cocks junction, the Plaintiff undertaking to bring an action^, 
V. and the Defendant admitting, on the trial, that th< 

Plaintiff was entitled to the copyright of the *' Elfi 
Waltzer,'' and the motion was ordered to stand ovecr 
in the meanwhile. 

By the terms of the order of the 11th of Novemi 
1848, as drawn up, the injunction was continued; ''an. 
the Plfuntiff, by his Counsel, undertaking to bring 
action-at-law, and the Defendant, by his Counsel, m \ -- 

dertaking, for the purpose of such action, to admit tt: i^e 

Plaintiff's copyright in the 'Elfin Waltzer,' it w: 
ordered," that the motion should stand over until aft 
tlie trial, with liberty to apply. 

An action was accordingly brought to decide 
legal right to " The Elfen Song," but before it had 
tried, a case of Boosey v. Purday (a) occurred in t" 
Court of Exchequer, in which it was held, on i. 
5th of Jtine 1849, that a foreign author, residing 
composing his work abroad, and first publishing it 
does not acquire any copyright. This decision 
opposed to the previous decision of the Court of Comm^^** 
Pleas in Cocks v. Purday y the Defendant now move^ - 
•— that the undertaking, on his part, contained in tb^ 
order of the 11th of Niwemher 1848, might be ymed^ 
80 as to make it an undertaking to admit, for tfa^ 
purposes of the action, that the Plaintiff was entitled 
to all such copyright, if any, as by law is capable 
of subsisting in the " Elfin Waltzer," being a com- 
position first published, simultaneously, in this country 
and abroad, and composed by an alien friend there 


(a) 4 Exch. Rep. 145. 


Mr. Turner and Mr. R. Palmer ^ in support of the 1850. 
motion, argued, that the Defendant ought to be relieved 
from the undertaking, for that, if this case proceeded 
to a hearing, the Court would find it impossible to 
bind the Defendant by the result of the special case in 
Cocks V. Pur day » 

Mr. fFalpole, Mr. Campbell, and Mr. Webster, contra, 
ugued, that this was an attempt to escape from an un- 
lertaking 'deliberately given, and to deprive the Flidn- 
tiff of the benefit of his verdict at law. 

Chappell V. Purday (a), Boosey v. Davidson (i). Cocks 
7. Purday (c), Boosey v. Purday (d) were cited. 

Tlie Masteb of the Rolls, after referring to the 
present conflict of authorities on the point, said, he 
thought the question ought not to be brought before 
the court of law, under the circumstances in which 
it at present stood, and that it was not right, that 
the Defendant, in trying a legal right before a court 
)f conunon law, should be bound by an admission, 
nade under such peculiar circumstances. He dis- 
shaiged the Defendant from his undertaking to the 
sxtent asked, upon payment of all the costs occaaoned 

(a) 14 Mee. ^ W. 303. (c) 5 C. B. Rep. 860. 

(6) 18 L. J. (Q. B.), 174. (d) 4 Ex. Rep. 145. 

Hh 3 




Mcnrch 6. 

A testator 
that, if " his 
should have 
no issue male 
of her body 
swing cU her 
deoM^ or no 
such issue 
male as should 
be entitled, by 
the true mean- 
ing of that his 
will, to his 
real estates 
limited, then 


riiHE Court on a former occasion (a), not 
■*• satisfied with the certificate of the Court of 
chequer (i), directed a second case for the opinion 
the Court of Queen's Bench. The will of Morton Dm 
son, referred to in the will of the testator Peter JoTSm^ 
soTiy was now made part of the case. The effect was 
follows : — 


Morton Davison, by his will dated in 1769, 
giving a life estate to Sir John Eden (the husband 
Dorothea, the daughter of the testator Peter Johnzo^n^ 
proceeded thus: — ''And from and after his decea J30 » 

of those' cases *^®°* ^^ ^^^^ "^7 iiephew Sir John Eden shall hs^'^'^ 
he devised the more sons than one of his body lawfully begotten, tba^^ 

the daughters ^^^ ^^^ ^^ ^^ ^^^ ^^ ^^ second son of my S0^^ 
of his daughter nephew Sir John Eden lawfully to be begotten, and of 
death. Held, the heirs male of the body of such second son lawfully 
^f th'^R^lf ^^"^ issuing ; and in default of such issue, to the use of th^ 
and Court tlurd, fourth, and all and every other the son and son^ 
cL^'jT'^' of the body of my said nephew Sir John Eden,'^ 
the opinion except his eldest son, successively, and the several 
of Q. B. that ^^^ *^® respective heirs male of their bodies. Thea 

the words followed a long series of limitations, concluding with aa 
** such issue «... 

male " were ultimate devise to his own right heirs for ever. There 

then followed this proviso : that in case the title of 

Baronet, then vested in Sir John Eden, should descend to 

the second, third, or any other younger son of Sir John 


(a) 1 1 Beavan, 289. (b) 1 Exch. Rep. 772. 

to be read 
" issue male 
of her body" 
simply, and 
not " issue 
male of her 
body iiving at 
her death" and 

that upon any failure of issue male of the daughter, her daughters took the estate. 
Where the words of a will are capable of a construction which will gire effect to 
«very word, it is not within the competency of the Court to alter their collocation. 



Eden^ or to any other person to whom his estates were 1850. 

hj his will limited, his estate and interest therein ^^ 

given should from thenceforth cease, and the person _v. 
next entitled might thereupon enter. 

The will of Peter Johnson is stated in a former 
▼olmne (a). It is only necessary to repeat the proviso, 
upon which the question principally depended, which 
was as follows : — " Provided always, that if it shall hap- 
pen, that my said daughter shaU have no issue male of 
her body living at her death, or no such issue male as 
flhall be entitled, by the true meaning of this my will, 
to my real estates hereby limited and settled as afore- 
said, then and in either of those cases, I devise all my 
said real estates (subject respectively as aforesaid) to 
in the daughters, if more than one, of the body of my 
eaid daughter who shall be living at her death, as 
tenants in common, and their heirs respectively, with 
cross remainders amongst them in case of any one or 
more of them happening to die under the age of twenty- 
one years and without issue. And if there should be 
but one such daughter living at my said daughter's 
decease, and no issue of any other such daughter then 
in being, then to such only surviving daughter and her 
heirs. Provided always, that if any such daughter or 
daughters of my said daughter shall happen to die in 
her or their said mother's lifetime, leaving issue, then 
my will is, that such issue of each such daughter so 
dying, and the heirs of such issue respectively, shall 
have and take the estates, or share or shares of estates, 
as the parent or parents of such issue respectively 
would have been entitled to, if she or they had been 
living at the decease of my said daughter. And in case 
my daughter shall have no issue of her body living at 


(a) II Beavan, 2S9. 

Hh 4 


1850. her death, then I devise all such my real estates, frc^ 
Wilson ^"^ ^^^^ ^^ determination of the particular estai 
V. hereinbefore thereof limited as aforesaid, to such 

son or persons" as his daughter should appoint; ai: 

subject thereto, to his own right heirs. 


The daughter died in the lifetime of her fath^^sflier^ 
leaving two sons, Robert and Morton, and sevec^^ienj 

Neither of the sons had issue, and on the death ^r-A of 
the survivor in 1844, his sisters claimed the est:;^State 
under the above proviso. In opposition to their rilaP -^fro, 
it was argued, that the ph to them was only in '^ the 
event of there being no issue male of Lady Etm — fa, 

entitled under Peter JohnsorCs wiU, limng at herdeu itk^ 

and that this event had not happened. The Co^^tut 
of Exchequer had arrived at that conclusion. 

It will be convenient to recapitulate the diflfei. «eiit 

1769. Will of Morion Davison. 

1774. His death. 

1779. Will of Petfr Johnson. 

1792. Death of Lady Eden, leaving two sons and several 

1796. Death of P^/^ Jo^itfon. 
1810. Death of his widow, the tenant for life. 
1841. Death of Morion, s.p. 
1844. Death of Robert, s.p. 

The case being sent to the Court of Queen's Bench, 
was argued before them in November 1849 (a), and thej 
certified, that the event had happened upon which the 
gift to the daughters of Lady Eden arose. 

The cause now came on upon the certificate. 


(a) 19 i. J. (Q.-B.) 104. 


Mr. Tkimer, Mr. Humphry, and "Mr. Elmsley rested 1850. 
<m the judgment of the Cgurt of Queen's Bench* w**^^'"^^ 

Mr. WalpoU, Mr. Malins, and Mr. Dumergue, contruy 
relied principally on the reasoning of the Court of 
Exchequer on the former occasion. 

Mr. Thtmer, in reply. 

The Masteb of the EoLLS. 

Quite independent of the two opposite opinions ex- 
pressed by the Courts of Queen's Bench and Exchequer^ 
[ should have considered this as a case of very great 
doubt and difficulty ; and I shall, therefore, abstain from 
saying any thing which would appear like confidence 
in the view that I take of it. It is a great satisfaction 
to me that the parties have resolved to take it to the 
House of Lords, where alone a case of such great 
doubt is capable of a final decision. 

There are two wills to be considered. It is very 
necessary that the first will should be known, in order 
that the position of the second testator, at the time he 
made his will, may be clearly understood. It seems> 
that Morton Davison^ the first testator, by his will gave 
a life estate to Sir John JEden, his nephew, and from 
and after his decease, in case his nephew Sir John JEden 
should have more sons than one son of his body, then 
to the use of the second son, and afterwards to the third 
and other sons. 

This being in the mind of Peter Johnson when he 
made his will, he devised his estate to his wife for her 
life, and after her death, to his daughter for her life> 
then to his grandson Robert JEden, (the eldest son of his 




1850. daughter,) and the first and other sons of his body, and 
then to his grandson Morto^ John EdeUj the second 
son, with remainder to his male issue, and then to the 
third and every other son ; and then comes this pro- 
viso : — That if any of these persons mentioned in this 
limitation should become entitled to the estate oi Morion 
Davison^ then the devise given by his will was to cease 
to be operative ; that is, that the person who became 
entitled to the estate of Morton Damson should not 
under Peter Johnson^Q will become entitled to his estate. 

Then follows this proviso, '^ That if it shall happen 
that my said daughter shall have no issue male of her 
body living at her death : " — that is one event : — ** or 
no such issue male as shall be entitled by the true 
meaning of this my will to my real estates hereby 
limited and settled as aforesaid," — then there is a gift 
over to the daughters of Lady JEden. That is upon 
the happening of either of the two events, *' then and in 
either of those two cases." Now were there two cases, 
or was there only one case ? The Court of Exchequer 
seem to have come to the opinion that there was but 
one, and that the one was involved in the other. The 
Court of Queen's Bench have come to the conclusion 
that there were two distinct cases contemplated by the 

It does not appear to me, that, in this case, it is at 
all necessary, for the purpose of construing these clauses^ 
to alter the collocation of any words contained in the 
proviso. The words, as they stand, seem to me to be 
sufficiently capable of receiving in a court of justice a 
construction, which will give effect, in the events con- 
templated, to every word contained in this will ; and if 
this be so, I think that it is neither necessary not 
within the competency of the Court to alter the ool- 



location of the words^ or to construe the words in their 
present collocation as if they were altered. I cannot 
accede to the argument used to-day, that the word 
"such" must refer to the antecedent words "issue 
BUile living at the death," because the words " no such 
issue male" are followed immediately by the words 
'' as shall be entitled." If it means " no such issue 
male as shall be entitled," then the whole of this pro- 
viso is, I think, capable of a distinct construction, 
and is 8u£Scient to ground the judgment of the Court 
upon. One construction is, " if there should be no issue 
male living at the death : " the other construction is, ^^ if 
there should be no issue male entitled imder this my 

The testator refers manifestly and clearly to the 
former clause in his will, in which he puts an end to 
the estate given by his own will, on the acquisition of 
the estate to come under the will of Morton Davison. 
I own, it seems to me that this is the best construction 
to be given to this will. Without, therefore, going 
into any lengthened argument as to probability, or 
what the testator may be supposed likely to have done, 
(which is quite unnecessary under the circumstances), I 
think, that there is sufficient to enable me to say, that 
the certificate of the Court of Queen's Bench ought, in 
this case, to be confirmed. 

It is a great satisfaction for me to find, that this 
matter will undergo investigation elsewhere, before it is 
finally decided. I am persuaded that there must, in 
this, as in many other similar cases, be such a dif- 
ference of opinion, as to the construction which ought 
to be given to this will, that the parties cannot be 
easily satisfied, and perhaps cannot be happy, unless it 
is determined by the highest tribunal. 



May 22. 24. GRAHAM, on behalf &&, v. The BIBE£NHE.A^^^ 

Riulway Company. 

The righu of r'liHE circumstances connected with the above Rs 
t^wif" -"- way Company are stated in the former cases^s of 
companies de- Dumvile v. The Birkenhead §*c. Rcdlwajf Company ^gt^a\ 
nghts as co- and more fuUy in the report of the appeal in the f «» 
P"^"*^ ,. sent case (i). 

ereatlymodi- ^ ^ 

led, however, 

dJ^Sd"'' The following, therefore, is a sufficient outline of -die 
parliamentary case: — In 1837, an act of parliament empowere^H t 
wSclTo^the company to construct a ndlway fix)m Chester to Bir^^oh 
constitution of head. In 1846, another Company were empoweredl to 
ship, they sub- make a railway of forty-six miles, to unite the fomoer 
jected them- ^j^ ^^ Manchester and Birmingham Railway. And 

Where a in 1847, both these Companies were amalgamated and 
Railfijay Com- j^^ 
pany has un- *'^^^'***"^ " ^ 

deruken to 

Un^^ofwy On the Ist of January 1847, the hitter Company 

series of Imes, entered into a contract with Brassey, for the execution 

thev are 

bound to com- of certain of the works. He commenced ; but, in con- 
pl^« H*-^ sequence of the pecuniary difficulties of the Company, 

series of lines, the works were suspended in September 1847. 
and are not, ^j^ 

without par- 
liamentary au- (a) Ante, p. 444. (b) See 2 Mac, i G. 146. 
thority, at 
liberty to abandon any portion of their undertaking. 

Existing contracts for making part of the line are no answer to an applicatior 
to prevent a Railway Company from making a portion of the line with an intentio 
of completing less tnan the wliole. 

On an application for an injunction to prevent a Railway Company from nuddn; 

portion only of their line, almndoning the rest, the Court would not be dimosed 
act in a severe and strict manner, if, by a small expenditure, a great benefit mt 
result to the shareholders and a considerable advantage to the public. 
Observations as to the discretion of the Court in such a case. 


The Plaintiff, a shareholder, by this bill, alleged, that 1850. 
the Directors had abandoned the junction line, except ^^^^^ 
about seventeen miles* That they had made and were «. 

enforcing calls for the illegal purpose of constructing bibkknhead 
the proposed Rfdlway from Chester to Lower Walton &c.. Railway 
only : — that they threatened to forfeit the shares for ^ ^' 

non-payment, and were about to borrow a sum of 
200,000/. for the same illegal purpose. The bill prayed 
a declaration of the illegality of making a part only of 
the Railway, otherwise than for the purpose of com- 
pleting the whole, or to make calls or borrow money for 
that purpose ; that the Directors might indemnify the 
Company, and for an injunction. 

A motion was now made to restrain the Defendants 
from making, and from applying the funds of the 
Company in constructing, the Railway from Chester to 
Lower Walton only, or any otherwise than in com- 
pleting the whole line: — from borrowing the 200,000/., 
and making and enforcing calls for the above purpose : 
— from forfeiting the shares for non-payment; and 
from bringing actions at law to recover the calls. 

Mr. R. Palmer and Mr. Cole^ in support of the 

Mr. Turner and Mr. Glasse, for the Company. 

Mr. Boupell and Mr. Willcocky for the Directors. 

Mr. R. Palmer in reply. 

Cohen Y^ Wilkinson (a), Tlie Attorney^ General v. The 


(a) Ante, p. 125. 138., and 1 Mac. 4r G. 481., and 1 HaU^ T. 


1850. Corporation of Poole (a), Frewin v. Lewis (b). Squire v. 
Campbell {c), Apperly v. Page (d)y Mozley y. AUioH {e), 
Richardson v. Larpent(jf), Evans v. Stokes (It), Gray 

BibiSThbad. ^- C»ap/m (i), Bromley v. ^mitt (A), /Veilim v. The 
&c.. Railway Grand Collier Dock Company (J), Salmon v. Randall (m), 
^^*"**'*^' 7%c Mayor, ^c. of King*s Lynn v. Pemberton («), were 

TA« Master of the Rolls. 

This undoubtedly is a case of very great importance^ 
and considering the extent of the evil to which the 
Defendants may be exposed by the operation of an in- 
junction, one cannot wonder at every effort being made 
by them to retain, what they conceive to be, their right 
to proceed with the construction of the works, notwith- 
standing their failure in completing all that is required 
of them by the Act of Parliament. 

I have very frequently had occasion to observe, that 
the rights of shareholders in these Companies de* 
pcnd on their rights as co-partners: greatly modified, 
however, by the public duties and parliamentary con- 
ditions, to which, on the constitution of their part- 
nership, they subjected themselves. It is, therefore, 
impossible to come to anything like a satis&ctory con- 
clusion on the points raised in this case, unless we 
have regard both to the principles affecting partner- 
ships, and to the public duties they have undertaken, 
and the parliamentary conditions to which they have 
subjected themselves. 


(fl) 4 MyL 4- Cr, 17. (h) 1 Keen, 24. 

(b) lb. 249., and 9 Sim. 66. (t) 2 Sim. <f> St. 267. 

(c) 1 Myl. «J C>. 459. (Ar) 1 Simons, 8. 
Id) 1 PhilL 779. (/) 1 1 Simons, 327. 
(0 1 PhUL 790. (m) 3 Myl. ^ Cr. 439. 
(g) 2 r. 4- C. (C. C.) 507. (n) 1 Swan. 244. 



I consider it to be now clearly established in this 1850. 
Conrty that Bailway Companies, constituted by act of ^^^^"'^ 
parliament, haye a condition imposed upon them to «. 

fiilfil all which the act contemplated, and if they Bmtj^^^j^ 
have undertaken to complete a line, or any series of &c*> Railway 
lines, they are bound, in duty, to complete the whole '^"*P*"/* 
of that line or series of lines, and are not, without 
parliamentary authority, (which is the only competent 
authority for that purpose,) at liberty to abandon any 
portion of their undertaking. It is upon those con- 
ditions that the legislature has given to these Com- 
panies such extraordinary and despotic power over the 
priyate property of individuals : — it is upon the faith 
that the whole works contemplated by Parliament will 
be completed, and that they are likely to produce a 
public benefit, to an extent so great as to compensate 
fiir the invasion of the private rights of individuals 
having property in the line, that these extraordinary 
powers are given. 

The great misfortune of late years has been, that 
these Companies, when once they have acqmred these 
extensive powers under acts of parliament, have too 
firequently been led away with the notion, that they 
were given them for the benefit of the shareholders 
alone; and that they might be exercised for their 
benefit, without any regard to the great public duties 
which the Company have undertaken. However er- 
roneous this notion may be, I cannot attach any serious 
blame to the persons who have acted in that manner 
in recent times. It is very probable, that they have 
been innocently misled into these mistakes, by the 
zeal with which they have prosecuted the particular 
interest of those depending on them, and from not 
being sufiSciently informed of the obligations to which 
they were subjected. I am very far from attaching 



1850. any great blame to this Company ; at the same time, 

^*^r^^^^ one must bear in mind : — that this is no new law 

V, now introduced, but a mere application of the law 

Birkenhead P^^^^^J well understood ; and besides, no principle is 

&C., Railway more familiar to us than this : — that ignorance of the 

Company. , -x • i ^• 

' '' law can never excuse its violation. 

The principle then being, as I conceive, perfectly 
well established, and not to be deviated from except 
by authority of Parliament, or by a contrary decision 
of the House of Lords upon appeal, it must be acted 
on as law here ; and this Court is not to exercise any 
arbitrary discretion in penmtting a violation to take 

In this case it clearly appears, that power was ^ven 
to make the whole line to Stockport, and a branch line 
from Hooton to Hehby. That was the object which 
Parliament had in view. Whether under right or wrong 
principles, — whether on a notion of encouraging com- 
petition or any other notion (for with all that we have 
nothing to do here) — beyond all question, it was the 
object of Parliament, that the whole of that line and 
its branches should be completed ; and it was upon the 
faith that that would be done, that the powers were 
given by the act. 

It is now proposed to do certain things, but not 
with a view of completing the whole line. I give 
-credit to the Company for having, on this occasioii» 
frankly and fairly stated what is the present state of 
things ; and for this they are entitled to every favour- 
able consideration that can be given them; but it must 
now be necessarily admitted, that they do not intend, 
and are not able, at this time, to complete the pailia- 
mentary contract. They are unable to perform the con- 


dltions In respect of which the powers were granted to 1850. 
them, and they desire, that they should not be restrained graih^ 
firom proceeding to do part only of that whole which v. 

they have undertaken, and are under an obligation to Birkenhead 
complete. Tlus, as I conceive, comes directly within &Cm Railway 
the principles established in the former cases. They 
are not to do a part only, although, without the com- 
pletion of that part, the whole could not be completed. 
They have a right to do the part in contemplation, and 
with the intention, of completing the whole ; but they 
have not a right to do that which in truth is a substi- 
tution of something new, and something different from 
that which was intended by the parliamentary contract 

It has been very ingeniously and ably argued, that 
this is not like the former cases ; for, in the first place, 
it 18 said that this is doing a part of that which must 
be a part of the whole. So also was going from Epsom 
to Leatkerhead, part of the way from Epsom to Ports^ 
mouth. I cannot see that there is any difference be- 
tween the two cases, in that respect. 

But then it is said, that here contracts have been 
lawfully entered into, with the intention of completing 
the whole line. I cannot see how that can make any 
material difference In this matter. On the 1st of 
January 1847, and at a time when there was a pro- 
spect of completing the whole line, the contract was 
entered into with Mr. Brassei/y and works were com- 
menced with a view of performing that contract, and 
of completing the whole line in the month of March 
following, which was before the Amalgamation Act 
passed. Those works were afterwards suspended for a 
yery considerable time. Having entered into those 
contracts with Mr. Brassey^ and having thereby in- 
curred very onerous obligations, is their inability to 

Vol. XIL li perform 


1850. perfonn their contract or to answer the obligations 

^^ir^""^^^ which they have entered into with him, a reason 
Graham '' , „ , , n i. ■ 

V. why they are to be allowed to depart at all irom the 

Birkenhead ^^igation which the act of parliament has imposed on 
&c., Railway them? It may be extremely unfortunate for them, 
^^^' that, at a time when they intended to do what was per- 
fectly right and act within the conditions, they should 
have entered into a contract, and that while the con- 
tract was in process of execution, they should find 
themselves in such a situation that they could not 
perform their part of it But is that a reason why 
the conditions of the act of parliament are to be de- 
parted] from? Is the circumstance that they are ac- 
cidentally unable to perform their obligations to Mr- 
Brassey, a reason for enlarging the powers given b 
the act of parliament? I confess I do not see ho 
that can be so; and though it has been urged wii 
great ingenuity and ability, I own that it has 
wholly out of my power to follow this argument: 
that the conditions of an act of parliament are to 
violated, because, with the intention of adhering to i 
conditions, the Company has entered into a contra^ 
which they are as much unable to perfonn, as they 
unable to perform the conditions of the act of 
ment. I consider that this can form no excuse for n 

following the enactment of an act of parliament whict=:^ 
they and everybody else are bound to take notice ol 
and to observe. 

Then it is said that this case differs from the other^ 
by reason of the nature of the combination and contracts 
existing between the Birkenhead and Chester Line, and 
the other parties. The proprietors of the Chester and 
Birkenhead Line are merged in the general proprietors 
of the two concerns ; but they were contracting par^ 
ties for a purpose sanctioned by act of parliament, 



impoeed on them all the obligations of completing 1860. 
the whole line. I conceive, therefore, that this makes ^'TT^^'^^ 


no difference at all, and that they are subject to the v. 

application of the same principle which has been adopted bibtohbad 
in the other cases referred to ; and that this is no reason &c., Railway 
why the authority of the Court should not be applied Company. 
in this, as in the other cases, to prevent the construe^ 
tion of a new line, and the substitution, by private 
authority, of a new contract, a new condition, and, in 
truth, something quite different from that which they 
authorised by the act of parliament to construct. 

The only matter that has given me much anxiety in 
this case, has been the representations which have been 
made, as to tlie very great and distressing loss which must 
be incurred, if these works should be now suddenly 
stopped. Counsel have not argued, that, because a great 
Ices will be caused, by preventing a violation of the con- 
ditions of the act of parliament, the Company are to be 
allowed to violate it. It has not been put on that, but 
the great loss which will be incurred, has been consider- 
ably dwelt upon. 

The point most dwelt upon is this : — It is now in- 
tended (that is, by those who are making the propon- 
tionB to the legislature, for that is the only intention that 
I know of now) to create an authority, by which, with 
due attention to the public interest, a deviation from 
the original plan may be allowed ; t. «., there is a pro- 
portion before parliament to create an authority, which 
shall possess a right, if it thinks fit and in a proper 
case, to allow a departure from the conditions imposed 
by parliament, and which may enable parties to abandon 
a portion of these works, upon the condition of doing 
the whole of which, the powers were given. In point 
of principle, it seems to me very difficult to see how 

It 2 this 


1850. this argument can be applied* Must not tbiB and 

GRAnAv every other Court administer the law in the state in 

V. which it is when they are called upon to administer it? 

Birkenhead ^^ ^^^ there really can be no doubt. 
&c., Ruilway 

Then it is said, that the jurisdiction by injanetion 
is an additional and superadded remedy to the legil 
remedy, and is discretionary. It is so ; but this jam- 
diction is applied according to general rules, and tbe 
Courts must not go to the extravagant length of sayings 
we have such a discretion, that we will not give the 
persons applying for the injunction the benefit of tbe 
law as it now stands, because we apprehend, that tbe 
l^islature, seeing that the application of the law ii 
likely to produce extensive loss, will alter it. Having 
on different occasions, seen the great hardship to whidi 
parties may be exposed by an injunction, and, on the 
other hand, cases where an additional expenditure of 
some amount (without carrying on new works) might 
tend to give the public the benefit of the works, so ht 
as they had been completed, and at the same time be 
profitable to the shareholders concerned, and perhapi 
prevent the whole being an absolute loss, I have tt 
least endeavoured to persuade myself, that the Court 
<night exercise a discretion of that sort. I am far frott 
.•cure that I have been right in that respect. I hate 
9iad read to me the report of what was said on * 
ibrmer occasion (a), which I believe is perfectly oo^ 
red ; but since that, two cases have occurred, in h(A 
of which I have failed to exercise a discretion of thst 
sort in the least degree available. In one case, the 
Company had carried tbe line to a certain extent, aod 
all they wanted, in order to make the line usefidi 
was the erection of a station ; and the question wtf» 


(a) See Hodgson v. Earl Powis, potL 


whether it would be possible to allow the expense of a 1850. 

station. It seemed to me to be a case, in which, with- ^]J^^^*^^ 

out any great mischief to the shareholders, or anybody, p, 

the Court might do it; and I was anxious to make ^ '^^ 

, ® , Birkenhead, 

the trial, and I dare say every thing was done by the &c.. Railway 
parties to bring before me a case, on which, if I thought Company. 
the discretion existed, it might be exercised; but it 
fiuled. The other was a case respecting the payment 
of ^vidends already declared (£). It seemed to me very 
hard to stop the payment of the income of parties, when 
there were funds in hand, said to be properly applicaUe 
to the payment of dividends. The parties endeavoured 
ta make out such a case as would justify me in per- 
mitting the application of the fund, but they failed. It 
was satisfactory to me to find, that on another point not 
brought before me, that injury to individuals was after- 
wards prevented by the Lord Chancellor. 

Whether such a jurisdiction does exist or not, and 
which I do not mean to repudiate, because a cose may 
arise in which the Court would not be disposed to act 
in a severe and strict manner, if, by a small ex- 
penditure, a great benefit might result to the share- 
holders,, and a considerable advantage to the public, 
I think I must grant an injunction in this case. 

It is not without considerable regret that I find 
myself bound to come to the conclusion which I have 
done in this case. I think, that the Defendants ought 
to be restrained from going on with these works* 
which are not intended to be a completion of the 
whole ; and my opinion is, that the circumstance, that 
this order is very likely to be productive of considerable 


(a) CarUtlc v. The South Eastern Rmlway Company, pott, and 
1 Mae. 4r Gor. 689. 

li 3 


1850. loes, does not justify me in ezerdsing any ^scretion in 
^^2^ refusing the application for an injunction. 


The As to the loan, if there are legal and just purposes 

&c.. Railway' ^^^ which some loan may be raised, I am not disposed 

Company, ^o grant the injunction in the terms asked; but 

think it would be reasonable to grant an injimction 
restrain them from raising money for any 
other than that of paying off loans already made, 
think this would be right, because, from the mann 
in which the Company have proceeded, there are in — 
dkations that the loan was for general purposes. 

As to calls and declaring shares forfeited, it is to 
observed, that the calls may be made for purposes 
fectly legaL Calls may be due and unpaid which 
absolutely required for the purpose of enabling th- 
Company to satisfy liabilities properly incurred, 
which may have been left undischarged, in consequen ce^? 
of the calls not having been pidd; if so, it would nc^'t 
be right to grant an injunction in terms which wouL^ 
preclude the Directors enforcing, in any legal modi 
the payment of calls which may be required for h 
gitimate purposes. The difficulty is in framing Hm^^ 
order. If words can be introduced modifying time 
order so as to leave them at liberty to enforce calls 
for the payment of all legitimate purposes, I am dis- 
posed to grant the injunction to that extent. I shoaled 
be sorry, while preventing the part performance of 
works which ought to be performed in entirety, to pre- 
vent the making those payments which they ought to 
make in discharge of just claims. 

Note. — Upon appeal, Lord Cotlenham^ upon the ground of 
acquiescence on the part of the Plaintiff; and considering that the 
granting of the injunction was acting too stringently on the ad- 
mitted rule, dissolved it except as to the intended loan of WOfldOL 
See 2 Mac. 4* Gor. 146. 






DOYLE V. DOYLE- ^«". i«. 

Y the decree made in 1818^ it was ordered^ that -^^ ^^ ^-t 
the will of the testator should be established, and sent^ves of 

the trusts thereof performed, and the usual accounts ^ surviving 

, , trustee, ww e 

were directed to be taken. The title deeds and trust made parties 

fimds were brought into Court in the suit, and orders '^^2^*1^ 
were from time to time made for payment of the in- trust property, 

^^^ served with a 

copy billf and 

In 1826, two new trustees of the testator's will were °**' '^^ '?**" 

pcena. They 

appomted, and the trust estates were conveyed to them, objected from 
They afterwards both died, and the trust estates then ^l ^^^ 

^ ^ but did not m- 

became vested in Turner and Layton^ the representa- tervene. New 

tives of the last surviving trustee (the Petitioners). J^Jkted,and 

seven years 

Li 1842, a bill of revivor was filed, to which Turner ^^^^ ^^ 

and Layton were made parties. The bill did not pray ™*^®> *" ^® 

, , * i' absence of 

a mbpana against them, but that, being served with a. and P., for 
a copy of the bill, they might be bound by the Jifn'SS"" 
proceedings (a). fund and 

delivery out of 

Being served with copies of the bill in January 1842, title deeds. 

Turner wrote to the Plwntiff 's solicitor as follows : — ^ petition by 

A. and B. to 

'' I think you have taken a wrong course, in serving discharge the 
Mr. Layton and myself with office copies of the bill of jj^^ig^ 
revivor in this suit, instead of subpc^nas. We shall with costs, 
not, however, appear to the bill, and thereby subject 
ourselves to the risk of costs, but shall, if we are so 
advised, at some future period, insist, that we are not to 
be bound by the proceedings." 


(a) See 83rd Order o{ Augutt^ 1841. Oni&nes Can. 171. 

Jt 4 


1850. In 1842, new trustees were appointed in the soit, 

^C^^^^ and a draft of a conveyance of the trust property to the 

V. new trustees being sent for the perusal of Turner and 

Laytofi, they declined to execute it, except under an 
order of the Court, in a suit duly constituted. A 
similar application and refusal were repeated in 1849. 

On the 10th of December 1849, the order now com- 
pUdned of was made, upon a petition which was not 
served on Turner and Layton^ and thereby, after pi 
viding for the payment of costs and legacy duty, thi 
payment to and transfer between the parties of a 
sum in Court was ordered ; and it further ordered, thu ■ t 
the tide deeds should be delivered out of Court to th^ •^■3 
new trustees appointed in 1842. 

Messrs. Turner and Layton now presented a petitio 
praying that the order of the 10th of December 184 
might be discharged with costs; and that the s 
transferred might be brought back. 

Mr. Roupell and Mr. C Barber, in support of tl» 
petition. The whole of the proceedings under the bt 
of 1842 were irregular. Messrs. Turner and Layto-::^^^' 
were trustees, having the legal estate vested in th< 
and could not be considered as parties against whoi 
*' no account, payment, conveyance, or other direct reli( 
was sought." Their accounts ought to have been takei 
before their discharge, and their right to the tide dee2. 
ought not to be intesfered with in their absence ; be- 
sides this, a ^^ conveyance " of the legal estate was re- 
quired from them. 

There has been no acquiescence : the Petitioners gave 
distinct notice of the irregularity from the beginnings 
and it was the duty of the Plaintiff to correct it It 


iras the fault of the Plaintiff in not acquiescing in the 1850. 
objection then, instead of persisting in the error. 

Mr. Turner and Mr. Hare^ cantriu The bill does not 
pray any conveyance, and no such order has been made. 
It is too late for persons, being bare trustees, to com- 
phdn of former irregularities which do not in any way 
i^ect them. They might either have entered a special 
appearance requiring notice of the proceedings (a), or 
might have required to have the suit prosecuted against 
them in the ordinary way {b\ They did neither, and 
have therefore bound themselves by their acquiescence 
in the proceedings. 

The course taken was adopted for the sake of eco- 
nomy, and all parties beneficially interested are before 
the Court to protect their own interests. 

Mr. Boupelly in reply. The Plaintiff was altogether 
wrong from the beginning, and he alone had the power 
to correct the error. It is not reasonable to expect the 
Petitioners, who were trustees, to enter a special ap- 
pearance at the peril of costs. 

Tlie Master of the Bolls. 

The course which has been pursued in this case is 
very extraordinary. In 1842, the Petitioners were 
served with a copy of a bill ; and it is plain that they 
were then well aware of the objection, for, in the letter 
they reserve their right " at some future period to insist 
that they are not to be bound by the proceedings." 


(a) 27th Order of August^ (b) 26ili Order of August^ 

1841. Ordinet Can, \72. 1841. Orrf. Can. 172. 


1850. The order of December 1849 was afterwards obtained 

upon a petition, which it is said was not served on the 
present Petitioners ; and now, after the money has been 
pidd out, this petition is presented, praying that the 
order of December 1849 may be discharged, and, if 
proper, that any money paid out may be paid in agun. 

The Petitioners now object, that that order, which 
was made for the benefit of all parties interested, was 
irr^ular, and ought to be entirely set aside. Un- 
doubtedly, if any injustice has been done, it ought to 
be corrected ; but I have not the least reason to think 
that any thing of the kind has happened. 

It is said, that the proceeding was irregular, and 
that, even if there had been a positive decree that the 
Petitioners should convey, it would have been in* 
effectual as against them, for they ought to have been 
served with a subpcma and with the petition. They 
put their case in this way : — the Court was to ad- 
judicate whether any conveyance was to be made by 
them of the trust estates, and if so, they did not come 
within the General Order. Such may be the result 
even now. 

These gentlemen say, '^ here is an irregularity, and 
nothing which has been done as between the other 
parties is to be of the least avail ; the * irr^ularity ' 
is such, as even to defeat the rights of the parties to 
the cause." I am not st all of that opinion* The 
Petitioners are trustees and may have a duty to perform, 
but they have no interest, further than they may be con- 
sidered as having an interest in performing their duty. 
They might have appeared notwithstanding they were 
not served with a subpcena. Why did they not ? They 
say, that although they were right in their objection, 



hey did not appear because they could not trust to the 1850. 

[7ourt to protect them against costs. This is absurd ^^"^^^^ 

md ridiculous. «. 

They might have entered a special appearance, and 
they would then have had notice of the petition upon 
p^hich the order complained of was made, and of every 
3ther proceeding. They did not do so> but by their own 
mpine negligence, permitted the proceedings to go on 
ind the order to be made. They might, at any time, 
liave applied to be heard on any matter affecting them ; 
bat instead of that, they ask to discharge the order 
altogether, as irregular from the beginnuig. on the 
ground that they ought not to have been served with 
a copy of the bilL 

I cannot help being astonished at the recklessness 
with which it is attempted to open the proceedings in 
this case on grounds so light. I quite agree that no 
valid order can be made against these parties in their 
absence ; and if it be attempted to enforce any such 
order they may then appear and resist it 

With respect to the deeds, they say, that if these 
deeds relate to the trust property, it is proper that they 
should have notice of the order before the deeds are 
delivered out The Court took the deeds from the 
tenant for life, and I see no reason why the trustees 
should concern themselves about matters respecting 
which they have no responsibility. 

Dismiss the petition with costs. 





March 12. 
April 15. 

The case of 
De Vitme v. 
De Vitme 
must be acted 
on with some 
caution, and it 


i^N the 14th September 1849, some property was 
^^ sold by auction in these suits. 

ing of a suffi- 
cient abstract, 
that a vendor 
is to lose the 
interest which 

By the conditions of sale, the purchaser was to 
is not in every obtain the confirmation of the report, and, on or 
in the deliver- before the 10th of November 1849, pay in his purchase 

money, with interest, from the 29th of September 1849, 

and the condition proceeded thus: — ''And thereupon 

the purchasers shall be entitled to the rents from the 

heha«stipu- 29th of September 1849, and under no circumstances^ 

UDoiTa sale **^^' the purchaser be excused from paying interest^ from 

under the 
Court, on the 
14th of Sep- 
iembeTf there 
was a condi- 
tion that the 
should con- 
firm the re- 
port, and 
before the 
lOth of No- 
vember pay 
his purchase- 
money and 
interest from 
the 29th of 
and be enti- 
tled to the 
rents from 
that time ; 
and ^ under 
no circum- 
stances " was 
he to be ex- 
cused paying interest from that time The purchaser was unable to obtain and 
serve tne order of confirmation until the 29th of November, The abstract was de- 
livered on the 6th of December, and the requisitions finally answered on the I7th d 
January, Held, that there was no such delay on the part of the vendor as to re- 
lease tne purchaser from payment of interest. 

that day until payment of the purchase money J* 

The purchaser was limited to twenty-one days to 
deliver objections to the title. 

Mr. Wood became the purchaser; but, in consequence 
of the offices being shut during the long vacation, and 
by reason of an application by a third party to open 
the biddings, the order absolute was not obtained till 
the 22nd of November, and it was served on the 29tli. 
The abstract was delivered on the 6th of December; the 
purchaser's requisitions were delivered on the 21st, and 
answered on the 3l3t: further requisitions were de- 
livered on the 10th of January, which were answered 
"without prejudice" on the 17th, and on the 18th, 



notice of motion was given to pay the purchase-money 
into Court without interest 

The only question was, whether the purchaser was 
bound to pay interest on his purchase-money from the 
29th of September. 

Mr. Turner^ for the purchaser, argued, on the autho- 
rity of De Visme v. De Visme (a), that there ought to 
be some diminution in the interest, the delay having 
been created by the default of the vendor to furnish a 
complete abstract. 

Mr. Roupell, and Mr. Erskiney contra. There is no 
reason, in this case, for deviating from the express 
terms of the contract between the parties, for there has 
been no wilful negligence on the part of the vendors 
in completing the contract. The present case differs 
from De Visme v. De Visme, not only in the absence 
of all improper delay, but in this : that in the present 
case, no time is specified for the delivery of the ab- 
stract, and the non-delivery before the 6th of December 
is attributable to the purchaser, who did not serve the 
order absolute until six days previously. The subse- 
quent abstract was not absolutely necessary, having 
regard to the special conditions of sale, and was de- 
livered " without prejudice," and merely for the better 
satisfaction of the purchaser. 

Mr. Turner in reply. 



Jones V. Mudd Qi) and Monk v. Huskisson (c) were 
also cited. 


(a) 1 Mac. 4r GoT' 336. and 

(b) 4 Ruu. 1 18. 

(c) Ih. 121. note. ; 




7%e Master of the Rolls. 

The doctrine of the case of De Visme v. De Vtsme 
was not new : it merely established a principle as to 
which a considerable difference of opinion had previously 
prevailed. The Court had sometimes refused interest 
to a vendor causing the delay, although he had thought 
fit to insert in his conditions of sale that he was to have 
it, *^ if from any cause whatever ^ the completion should 
be delayed. In other cases, it was assumed that the 
contract was binding on the parties, and that the words 
" from any cause whatever " would even include those 
brought about by the default of the vendor himself, so 
that he was thus profiting by his own negligence. 

I hope the case of De Visme v. De Vtsme has now 
settled the point ; but it is, nevertheless, necessary that 
that case should be acted on with some caution ; other- 
wise, no negociation could take place between the soli- 
citors, for the purpose of better satisfying the purchaser 
as to the title, without entangling the vendor in a ques- 
tion of interest. It cannot be laid down, that in all 
cases where a sufficient abstract is i^ot delivered in 
time, the vendor is to lose the interest which he has 
stipulated for. 

I will read over the affidavits and the case of De 
Visme V. De Visme, There is no question here as to 
whether a good title can be made, or as to what is neces- 
sary to perfect it ; a good title is admitted, and the only 
question is, whether the delay on the part of the vendor 
has been such, as ought to deprive him of interest 

It is not to be forgotten that the purchaser is, at aD 
events, entitled to the rents from September. 



The Masteb of the Rolls said, that he had care- 1850. 
fully read the affidavits, but could not fairly come to the 
conduBion, that such a delay was imputable to the 
Tender, as to relieve the purchaser from the payment 
of interest "^P"^^^' 

HENNET V. LUARD. April 15. 

nnELB Plaintiff, by hb will prayed, that upon pay- A Defendant 

*■ ment by him to the Defendants the Banking pw^t&'aU 

Company of 8000i which he offered to do, the Bank- ^^^ ^lief 

ing Company might deliver up to him sixteen railway sought by his 

bonds of lOOOt each, which had been deposited with ^!"» ^^^ ^ 

... ... dismiss the 

tnem, and for an injunction to restrain their parting bill without ' 

with them, and for general reUef. She PiSnff 

might apply 
On a motion for an injunction, an order was made Jhern.^ *^he 
by arrangement, dated the 25th of January 1849, Plaintiffthen 
whereby eight of the bonds were to be lodged in further de- 
Court, and the remainder were to be retained by the ™?"4 which 

"^ might be had 

Banking Company until payment of the 80002. On under the 

the 25th March 1849, the Plaintiff paid the 8000i, and P^^^^J^u^f 

the eight bonds were delivered up to him. or by amend- 

ment. The 
Court refused 
The Defendants, the Banking Company, by Luard, the motion 

their public officer, now moved, that upon payment into but intimated. 

Court of the balance of interest received on the bonds, that this pro- 

ceedmg must 
and upon delivery out of the eight bonds now in Court, be considered 

the bill might stand dbmissed as against them without *^ ^^ heanng. 
costs ; or that, if the Plaintiff considered he had any cbion in Sivell 
chum for costs against Luardy then that he might make ^ Seavtm!^^ 

an application within a limited time to establish it, and 598., adhered 







in default, that the bill might be dismissed without 

The motion having been now brought on, the Pliun- 
tiiF insisted, that the Defendants were also liable for 
339/., the amount of coupons which he now alleged had 
been cut off the bonds. This subject of complaint was 
not stated or charged in the bill. 

Mr. Roupell and Mr. Stevens, in support of the 
motion. The Defendant offers all the relief asked by 
the bill : therefore the suit ought not to go on. If th< 
only question be as to the costs, the Plaintiff ought 
not to proceed with the suit, but should make a special 
application, in the way pointed out in Swell v. Abra- 
ham (a). 

[The Master of the Rolls. I do not at all recedi 
from what I am reported to have siud in that case.] 

As to the coupons, nothing is sought respecti 
them by the bill ; and it is stated, that that sum w 
received by Cooper one of the co-Defendants, when h 
had no connection with the Bank. 

Mr. Turner and Mr. Terrell, contra. The De — 
fendant does not offer to give the Plaintiff all he claims^, 
and therefore the suit cannot be stayed. The Plainti 
insists, that the Defendants are liable for 339/., th< 
amount of coupons, which, he says, were cut off thc^^^ 
bonds; and although this matter is not specifically*^^ 
charged by the bill, still the prayer for general relie 
will cover it ; and besides, the Plaintiff is entitled tc^ 
amend his bill, and will do so, if he finds it necessary. 


(a) 8 Beavan^ 598. 


Mr. Roupelly in reply. 1850. 

The Master of the Eolls. 

This motion seems to me so laudable in its intent, 
that I think it deserving of great consideration ; but, 
it the same time, it is impossible for me to depart from 
the rules which have been established in cases of this 
kind. I think it perfectly clear from what is stated, 
that, by the prosecution of this suit, the Plaintiff may 
2hum (whether successfully or not I cannot tell) some- 
thing more than is offered to him by the terms of this 
ciotice of motion. That being so, the offer is not to 
^ve the whole of that which the Plaintiff has a right 
to claim ; and, consequently, I cannot grant the motion, 
[consistently with what I conceive to be the established 
practice of the Court. 

The only question which remiuns is, whether the 
Defendant, who fails in this motion, ought to pay the 
sosts; and though I am very reluctant to make the 
>rder, I think, under all the circumstances, that the 
party who made this motion must pay the costs of it. 

However, when the cause comes on forbearing, I 
must bear in mind what has been offered on the present 
3Ccasion, in order that I may then judge of the pro- 
priety of the Plaintiff's persisting in prosecuting this 

Vol. XII. K h 




April 15, IG. 

An omission 
to give notice 
of the filing 
of exceptions 
on the same 
day, does not 
render a sub- 
sequent order 
of reference 
irregular: but 
the omission 
is matter of 
in time, upon 
a proper ap- 

On the 6th 
of March^ the 
Plaintiff took 
but did not 
serve notice 
until the next 
day, and he 
obtained an 
order to refer 
on the 15th. 
A motion to 
discharge the 
order was 


ON the 6th of March, the Plaintiff filed exception 
to the Defendant's answer for insufficiency. N 
tice was sent on the same evening, but did not 
the Defendant's solicitor until the following day. 

On the 15th of March, the order of reference 
obtained, and was served on the 19th of March. 

The 24th Order of October 1842 (a) requires noti< 
of the exceptions having been filed to be given ^' 
same day^ 



By Article 26. of the 16th Order of May 1845 (S^jt 
" The Plaintiff is to procure an order to refer ihe:r an 
after the expiration of eight days, but within 
days from the filing of such exceptions. If he 
not, the answer, on the expiration of such fourte^i^aB 
days, is to be deemed sufficient" 

A motion was now made to discharge the order of 

Mr. William H, Terrell, in support of the motion. 
The Plaintiff having neglected to give notice of filinjf 
the exceptions on the same day has been guilty of 
an irregularity, and, this being an injunction case, the 
Defendant is entitled to take advantage of it Id 
a similar case of Johnson v. Tucker {c) a replication 
was ordered to be taken off the file, because notice of 
the filing of it was not given on the day on which ? 


(a) Ord. Can. 216. (c) 15 Sim. 599. 

(b) Ord. Can. 285. 



was filed. The party ought to have come to be re- 1850. 
lieved from his neglect, as in Bradstoeh ▼. Whatley (a), ^*T^^^ 
where notice of exceptions was not given until a day v. 

too late, and was not properly intituled, and the Court 
relieved the party from the effects of the irregularity, 
on payment of costs. Calculating from the notice (the 
7th), the reference has been made one day too early, 
and the Defendant has therefore lost an opportunity 
of submitting. 

2. The order was obtained as of course, suppressing 
the fact of the irregularity as to the notice. It ought, 
therefore, to be discharged. St Victor v. Devereux (ft), 
Holcombe v. Antrobus (c). 

Mr. Turner and Mr. GokUmidy contra, argued, that 
the Defendant had sustained no injury, verbal notice 
having been given on the day to the solicitor's clerk. 
That the want of notice had not the effect of rendering 
the exceptions inoperative, but merely formed a ground 
for extending the time, Wright v. Angle {d) ; and that 
the Court would not allow its Orders to be converted 
into engines of oppression : Lord Suffield v. Band (0). 
The case of Matthews v. Chichester (g) was also dted. 

Mr. fF. H. Terrell, in reply. 

The Masteb of the Rolls. 

The case b this : — Exceptions were taken to the 
answer of the Defendant, which were filed within the 
time required, and an order afterwards was obtained for 
referring the exceptions. Under the 26th Article of the 


(a) QBeav,6\. (rf) Q Hare, 107. 

{b) 6 Beav. 584. {e) 10 Beav, 146. 

(c) 8 Beav. 405. (g) 5 Hare, 207. 

Kh 2 







16th Order of May 1845, the FlaintifF is to refer them 
'^ after the expiration of eight days, but within fonrten 
days from the filing of such exceptions." If he does 
not, the answer is to be deemed sufficient. It is 
necessary to read this Order in conjunction with the 
24th Order of October 1842, which requires notice of 
filing exceptions to be given on the same day on whidi 
they are filed. There is no penalty, however, attached 
to any neglect or omission to give notice on the same 
day, no penal consequence attached to a disobedience 
of the direction contained in this Order. In this case, I 
have had two statements made to me ; but I think it is 
not denied and I assume, that the notice did not reaeh 
the office till the following day. The question is, if 
that makes the order irregular? Is it not rather a non- 
compliance with the directions in the Order, which mij 
be corrected or compensated for, without resorting to 
the extreme measure of setting it aside altogether? 

The question for consideration is, what ought to be 
done in a case, where the Court has not, by its General 
Orders, provided a consequence for an omission to giw 
notice on the very day. Must the Court treat the order 
as irregular,^ because it was not served in due time? 
Consider what the consequence might be. 

As the Court can give to the Defendant the time lost 
by the neglect of the Plaintiff" to serve the order, I mh 
disposed to adopt the view of Vice-Chancellor fflgran 
in Wright v. Angle^ and, adopting it, I cannot oon- 
:sider this order as irregular and discharge it I f<^ 
isure, that, if, by reason of the Flaintiff^s omission, an 
ftpplication had been made for additional time, I would 
not only have granted it, but, to shew the import- 
ance I attach to the due observance of the General 
Orders, I should have given the Defendant the costs of 
the application. I have no desire to relax the rules of 




it IS quite different from allowing a 1850. 

strict an application of technical ^"^"^^^^"^^ 


hargc the order altogether; I ». 

Jon, but let the Plaintiff's ^^'"i-'*"^- 
. ' I do not agree with that, 
^notion without costs. 

hi re EVERETT. March 16. 

A SUM of money had been paid into Court under To enable the 
"^^" the Trustee Indemnity Act (a), to the following tribute a fund 

account : — "In the matter of the trust of the will of ""«*er the 
_ T-i 1 1 1 ^ n r^ • Trustee In- 

n\ Everetty Esq. dated the 28th of September 1844, m demnity Act, 

relation to one-fourth part of the sum of 5000/. 31 per [' ""«' *^^, 

*^ ^ ^ * * to an account 

cents, bequeathed by the said will in trustees for Ada which scpa- 

Ann Everitt Kersey^ and Mary Ann Kersey^ as in the ^h|f other"'" 
add will is mentioned.'' assets, and 

disconnects it 

mr.Eddis appeared in support of a petition for pay- other trusts of 
ment, but '*"« ^'" 

The Master of t/ie Kolls said, that the Court could 
notj under this Act, deal with a fund standing to an 
account so generaL Tliat to enable the Court to dis- 
tribute a particular fund, the trustees must take on 
themselves the responsibility of separating it, finally 
and for ever, not only from the other assets, but from 
all the other trusts of the will* He said that, in this 
case, the fund must be transferred to another heading, 
before it could be distributed. 

(a) 10 & 1 1 Fir/, c. 96. extended by 12 & 13 Hd. c. 74. 
See la re JotepIC* WM, \\ Beav, 625. 

Kk 3 




April 22. 


A railway 
company took 
lancu, the 
subject of an 
suit, and in 
which in&nts 
and married 
women were 
and a refer- 
ence was 
made to the 
Master in the 
cause, to 
what course 
was the most 
beneficial for 
the parties 
The company 
was directed 
to pay all the 
costs, charges, 
and expenses 
of the peti- 
tion and refer- 

TN 1830^ Richard Galcon, being seised of a real estate 
•■- at Knaresborouffh (subject to certain rent chaiges 
and legacies created by the will of his father), made 
will, by which he devised it to trustees on ce 

A suit was instituted for the administration of 
estate, and a decree was made in 1842, referring cer— - 
tain matters to the Master, who made his report i 


In Jantiary 1847, the Leeds and Thirsk Railwa^j— J 
Company, under the provisions contained in their 
8 & 9 Vict c, civ. extended by the 9 & 10 
cc, cxlix. and cliii. and cliv. and 10 & 11 Vict c. ^* 
and the Lands Clauses Consolidation Act 18A5(e^^), 
gave notice to the parties in possession of the pro] 

that the Company required to purchase, and deman.-^- 
ing the particulars of the estates and interests thereLn}, 
and offering to treat for the purchase and compensa- 
tion. The notice stated, that in default of compliano^ 
the amount would be ascertained in the manner pro- 
vided/or by the Lands Clauses Consolidation Act IS45, 

On the 30th March 1847, an order was made in 
the cause, upon the petition of some of the parties in- 
terested, by which it was referred to the Master to 
ascertain, whether it was most for the benefit of the 


(a) 8 Fict c. 18, 



parties being infants and married women, that the 1850. 
Company should be required to take the whole of the ^^^^^ 
property, and to determine by which of the modes v. 

the compensation ought to be ascertained, and direc- 
tions were given for ascertaining it accordingly. 

The parties proceeded before the Master, and a sum 
of 910L was ultimately awarded them by arbitration, 
which was paid into Court by the Company. The 
Master made his report in 1849. The title being ac- 
cepted, a petition was now presented, praying that the 
money might be invested, and the dividends paid ac- 
cording to the rights of the parties ; and for a refer- 
ence to tax the Petitioners, and the Plaintifl^ and 
Defendants to this cause, respectively, their costSj 
charges and expenseSy of and incidental to the taking and 
compulsory purchasing of the premises by the Railway 
Company, and of and incidental to the former petition, 
and to the reference to the Master thereby directed^ 
and of the reference to the arbitrator, and of the agree- 
ment of reference, and of this application, and of the 
conveyance ; and that such costs, charges and expenses 
might be paid by the Railway Company. The petition 
set forth at length the Master's report, contwiing all 
the proceedings, which occupied eight brief sheets of the 
present petition. 

Mr. Turner and Mr. Halletty in support of the pe- 

Mr. Walpole and Mr. Tillotson, contra, objected to 
the payment of the costs asked, alleging that a consi- 
derable portion had been imnecessarily incurred. 

Mr. Turner, in reply. 

Kh 4 The 


1850. The following authorities were referred to. 



P. Re Hare's Estate (a). Be Hull and Selby Bailway 

Company (i). In re Taylor (c), 8 Vict c. 18. *. 80., 
and see In re The Merchant Tailors* Company {d), 
Jones V. Lewis (e). 

The Master of the Rolls. 

Primd facie, all the expenses ought to be paid hj 
the Company who have occasioned them. Where 
public Companies, either for the public good or their 
private profit, come and violently take the property of" 
others, whether they like it or not, they ought to in- 
demnify the persons against all the expenses which may 
be occasioned by such a proceeding. 

But if a party proceeds in a wilful and extravagant 
way to incur costs quite unnecessarily, the Court will 
not allow them, and will refer it to the Master to en- 
quire whether any and what unnecessary coats have 
been incuri'ed. 

Mr. Walpole. Such a reference would only increase 
the costs. 

The Master of the Rolls. Then let the order be 
made according to the prayer of the petition (jfy ' 

(fl) 5 Railivatf Ca. 592. (d) 10 Beav. 485. 

(6) lb. 458. (c) 2 H. 4- Tw, 406. 

(c) 1 ^fac. 4- Gor. 210., and (g) ^ee Keg. Lib. 1849 B. 

l/f. <J 7'tt;. 432. folll20. 



WEBB V. GRACE. jiprU 22, 23. 

In re VINES and HOBB& 

T^TR. GRACE employed the Respondents as his The decision 
solicitors in the above suit ; but before it had been ^^ft/is iBeav. 
finally determined^ he discharged them and paid their 227., is inap- 

Dlic&biCa where 
bill of costs in 1849. fhe menu of 

the cause 
must enter 

By an order of the Vice-Chancellor oi England^ made into the dis- 
in the cause upon further directions, Mr. Grace*s costs ^^^^sion. 
in the cause, as between solicitor and client, were or- 
dered to be taxed and paid. Mr. Grace then took in 
the Respondents' bills of costs into the Master's office 
for taxation. The Master required vouchers for items 
amounting to 240/., and, the Petitioner being unable to 
obtain them from the Respondents, the items were dis- 

This was a petition presented in the cause and in the 
matter of the solicitors by Mr. Grace, for the taxation 
of the bills and delivery up of the papers and vouchers, 
or, in default, that the solicitors might pay the amount 
of the sums struck off on taxation for want of such 

Mr. Turner and Mr. Nevinson, in support of the peti- 

Mr. Roundell Palmer and Mr. Morris, for the solicitors, 
objected, that the cause being attached to the Vice- 

Ex relatione. 




Chancellor of Englandj this Court would make no order 
in it. 

Mr. Turner relied on Robins v. Mitts (a)^ where it 
was held, that an application in a cau8e> by a client, to 
tax a solicitor's bill was not within the General Orders 
of -May 1837. 


The merits having been entered into 

The Masteb of the Bolls said, he adhered to thi 
decision in Robins v. MiUs as a general rule, but that i 
did not apply where the merits of the cause entered i 
the discussion. He allowed the objection in this 
on the ground that the order which was asked on th 
petition was for the purpose of carrying out and givingg_^ 
complete relief on the order made by the Vice- 
cellor on further directions for the taxation of costs. 

(a) 1 Beav, 227. 


April 23. 

In taxation, 
abstracts are 
passed if they 
contain eight 
folios on an 
average : but 

In re WALSH. 

nnHIS was a petition for the taxation of a bill of ooista 
-*- of 173i which had been piud. 

The bill was delivered on the 30th of December 1848^ 
and was placed by the Petitioners in the hands of thdr 
^.^thllt rfi^*^ solicitors, who, on the 15th of January 1849, threatened 
should con- to have the same taxed. 

tain ten folios. ^^ 

Taxation of ^ 

a paid bill, 

sought on the ground of overcharge in abstracts containing less than ten folios re- 
fused, the practice being hi uncertainty, and there being no pressure or surprise. 
Explanatory notes of the Taxing Master as to the charge for abstracts, ox. &c. 


On the 30th of Marchy one of the clients and Peti- 1850. 
tioners was summoned to the Court of Bankruptcy, ^^^^^^^ 
and requiring some of the documents in the hands of Walsh. 
the solicitor to assist him, he applied for them, but 
they were refused by the solicitor, except on the terms 
of having his bill of costs paid. 


On the \9\koiAprily the Petitioners sent for the 
papers and paid the bilL 

On the 26th of Julj/y the solicitor of the Petitioners 
again applied to Messrs. WaUk to have the bill taxed ; 
a long and ineffectual correspondence took place, and 
ultimately, on the 21st of December ^ the Petitioners pre- 
sented this petition for the taxation of the bilL The 
grounds relied on were, 1st, that the payment had been 
obtained under the pressure arising from the want of 
the papers; 2ndly, that the bill contained exorbitant 

The principal item relied on was, that for an abstract 
of 109 sheets, containing 575 folios, which had been 
charged 542^, whereas the Petitioners alleged, that each 
sheet ought to have contained ten folios, which would 
make 58 sheets only, and that consequently there was 
in this item an overcharge of 25/. Another similar 
overcharge of 9Z. for an abstract was also alleged. 

The Respondent, in his affidavit, stated, that in thirty- 
eight years' practice he had never been aware of the 
existence of any such rule, that an abstract ought to 
contain ten folios ; and he further said, that ten folios 
could not be contained in one sheet without so crowding 
the papers as to destroy the utility of an abstract ; and 
he further said, that the abstract complained of con- 
tained the usual quantity of matter. 



1850. This statement, as to the practice, was also supported 

^■^■V*^^ by the affidavit of five very respectable London solicitors,. 

Walsh. ^^o stated the rule to be, that every sheet should be 

fairly written out with the usual abbreviations without 

reference to the number of folios therein contiuned* 

On the other side it was sworn, that a contrary prac- 
tice existed in the Master's office, and this practice was 
relied on. 

Mr. Turner and Mr. Giffardj in support of the peti- 
tion, relied on the alleged pressure and overcharge. 

Mr. Roupell and Mr. James^ contra, argued, that there 
had been ample opportunity before payment to obtain 
a taxation of the bill, and that, therefore, there was 
no pressure. Secondly, that there was no overcharge, 
according to the existing rule of professional charges ; 
and that, even if there were, that circumstance alone 
was insufficient to warrant a taxation : In re Stirke (a). 

Mr. Turner, in reply. 

The Master of tlie Bolls said, he would enquire 
into the practice before giving judgment. 

May 8. The Masteb of the BoLLS. 

Tliis was a petition to tax a paid bill, on the ground 
of surprise and overcharge. The bill had been long in 
the hands of the parties by whom it is now sought to be 
taxed, and the case is one of the weakest, on the ground, 
of surprise, I have yet met with. 


(a) UBeav.ZO^ 


As to overcharge, I thought proper to enquire 1850. 
as to the rule as to preparing abstracts of title, and ^^^^^^ 
I have taken the opportunity of applying to the Taxing Walsh. 
Masters for their certificate. It is not as decisive as I 
could have wished as to the practice. They have cer- 
tified, that the strict legal charge for drawing an ab- 
stract is 6s. Sd. for each sheet of ten folios of seventy- 
two words. 

This is the rule contended for on behalf of the Peti- 
tioners, and which has not been strictly complied with 
in this case. 

But the Taxing Masters say, secondly, that it has 
been the practice in their oflScc, to pass abstracts if 
each sheet contains eight folios, except in a very few 
instances, where the full quantity of ten folios has been 
insisted on. 

Therefore the rule comes to this : — that, although 
they are ordinarily content with an average of eight 
folios per sheet, yet, strictly, and where any person 
insists on it, they require ten folios. 

It is manifest from the form and nature of an abstract 
being a species of map of the title, that it may require a 
different arrangement from that of ordinary drafts, and 
that ten folios cannot always be conveniently got into 
one sheet. 

This state of practice is not very satisfactory ; yet it 
is convenient in practice, and it is enough for me to say, 
that the items complained of ought not strictly to be 
treated as such an overcharge, as, in the absence of pres- 
sure, to warrant the taxation of a paid bilL 

I must dismiss the petition with costs. 




Certificate op Taxiho Mabtbbb. 

My Lord, 

In compUaDce with your Lordship's request, we the 

uodersigned beg leave respectfully to certify to yonr 

Lordship as follows : — 

1. We consider the strict legal chai^ for preparing 
an abstract of title to be as follows : 

t. d. 

For drawing for each sheet of ten folios of 

seventy-two words - - - 6 ^^ 

For copy thereof - - - 3 ^^ 

2. It bus been the practice of the Master's office, fo^= 
very many years, to pass abstract sheets as properi]^^^ 
charged, if they contain on the averse eight folios pe^~4 
sheet, which practice we have followed, except in 
few cases where the full quantity of ten folios has beer _ 
insisted on. 

We have the honour to be, my Lord, 

Your Lordship's most obedient servant/), 
PkiKp Martineaii. 
Bob. B. FolUtL 
Bichard Mlh. 
Taxing Masters^ Office, John fVaintorigkt. 

April 25. 1850. Joseph Parket. 

H. B. Bainei. 
To the Right Honble. 
Lord Langdale, 
&c &c &c. 

The following Note was appended to the Certific».te 
of the Taxing Masters : — 

It may be necessary to explain to the Master of tie 
Bolls, the apparent uncertainty which exists io the pro* 
fessional charge for abstracts. 



It 18 a well understood and defined rule^ that the 1850. 

chai^ for drawing a deed^ will or other document^ for ^^^^ 

signature, is Is. per folio, and Ad» per folio for the Walsh. 

It is abo well understood and defined, that the charge 
for drawing statements, as abstracts and cases, is less 
by 4d., that is to say, that the charge is Sd. per folio 
for drawing, and Ad. for copying. 

Deeds are more accurately charged by folio, but they 
are also very commonly charged by skin, especially by 
the London houses. 

Abstracts and cases are charged by sheet. 

With respect to deeds, as abo with respect to attested 
copies (in like manner as all proceedings in suits), the 
number of folios is an ascertained fact, the number of 
such folios regulating the stamp duty, so that there is 
no imcert^nty and scarcely ever a mistake as to the 
proper charge. 

The charge for deeds is commonly inserted thus : — 

Drawing deed, five skins - - £5 

which IB made up by If. a folio for the fifteen folios 
which by the Stamp Act are required in each skin, and 
5^. for the copy at 4rf. per folio. 

And so in the other instances, where the folios are 
ascertained, as in pleadings. '^ Brief copy pleadings, 
200 folios, 20 brief sheets." 

But abstracts are never, for any purpose, required to 
be counted, and the length is therefore always a matter 



1850. of estimate or guess, and this Is so, both with the soli- 
^^^^^^^"^ citor who makes out his bill and with the Masters in 
Walsh. their taxation, unless they require them to be counted 
for accuracy. 

Here the habit has arisen for charging for the number 
of sheets of paper used, a habit capable of the greatest^ 
abuse, and which, in fact, is greatly abused, many cUcnts 
being charged the full charge for sheets not containin^^ 
more than half the proper quantity, and sometimes less^.. 

The gentlemen who have given their evidence on 
point must, however, be mistaken as to the practice 
their own offices. They cannot mean to say that th- 
numbcr of sheets of paper is to regulate the chaise witl 
out any regard to contents, and they would not thei 
selves so charge. They would no doubt content thei 
selves with seeing that the sheet is fairly a full sheet 
but as the quantity put upon each sheet of paper wou ^Hd 
differ with the handwriting of each clerk (and soiHde 
sheets arc ruled with thirty-six lines, and some wi^ 
forty-two), it is obviously necessary that some definm te 
quantity should be considered as the necessary and cor- 
rect standard. 

Now, as tolerably close writing will bring in about 
eight folios, and as ten folios cannot be compressed into 
a sheet without difficulty, no doubt that number was 
originally agreed on as a fair average quantity ; but, at 
all events, it is a fact, that it has been considered a fair 
average quantity, as far back as the practice can be 
traced, and the charge has been allowed accordingly* 
unless ten folios in the sheet have been insisted upon 
by the adverse party, which, however, has only happened 
in a very few cases, the parties being almost invariably 
content with the usual allowance. 



^_„„. «„„ ,^„,., March 1. 


rpHE PlaintiflF, in his bill, filed on the 13th of Fe- A Plaintiff 
-*■ bruary 1850, described himself as living at Hong h^selfas 

Kong. \Wmg abroad. 

Having given 

TT ij r x» i» • • !.• J notice of a 

He gave notice of motion for an injunction, and on motion the 

the 13fch of February 1850, filed an aflGidavit in support Defendant 
of the application. The Defendant appeared, and ap- asked for time 

plied for, and obtained time to answer the aflSdavit, and ^ answer the 
A - -, , /v. , . . . • 11 affidavits, and 

afterwards filed an affidavit in opposition : he also ap- he afterwards 

peared on the motion on the 22nd of February, when it ?^^ affidavits 
*^ ^ •''in opposition. 

was refused with costs. Held, that he 

had not there- 
by waived his 
The Defendant, on the 27th of February 1850, ob- right to secu- 

tained an order of course, that the Plaintiff* should give "'y for costs. 

^ A Defendant 

security for costs. does not, by 

simply defend- 

The Plaintiff^ now moved to discharge the order, on J^fi^^in'gt 
the ground that the Defendant, by his appearance and hiin, lose his 
filing an affidavit in opposition to the motion, and by ^y ^p ^.^^jg' 
subsequent appearance thereon, had waived his right to 
security for costs. 

Mr. Glasscy in support of the motion, argued, that 
the Defendant ought to have obtained the order for 
security for costs in the first instance, and that, by ob- 
taining time and filing the affidavit in opposition to the 
motion, he had waived his right to such security. He 
cited Meliorucchy v. Meliorucchy (a), Anon, (i), and Ex 
parte Tull{c). 


(a) 2 Vet. sen. 24. (c) 3 Dea. 4* ChU. 503. 

(b) 10 Ves. 287. 

Vol. XIL L I 


1850. Mr. Goldsmidy cantrh. The cases cited do not apply, 

""tr^^^^^ for the Defendant himself had there applied to the 

V. Court ; here the Defendant has acted on the defennTe 

Wilson. ^^^ rpj^^ ^:^^^ ^^ decided in Ex parte Seidkr{a\ 

where it was held, that if a petition is presented by 
a person out of the jurisdiction, the Respondent mty 
require security for costs, notwithstan£ng he has tn- 
swered the affidavits in support of the petition. 

Mr. Glasse, in reply. 

The Master of the Bolls. 

The question is, whether, in consequence of what took 
place, the Defendant is to be considered as having waiTed 
his right to security for costs. I wish for further in- 
formation as to the case of Bx parte Seidler. I wiD 
inquire into the circumstances of that case. It does not 
appear from the report, whether the application wtf 
made at the time the petition came on, or afterwards. 

^^ 83. The Master of the Rolls. 

This was a motion to discharge an order that the Flflin- 
tiff should find security for costs. The objection takai 
was, that the Defendant, before he obtained the order, 
appeared on a notice of motion made by the Phuntift 
and obtained time to answer affidavits. I am of opimon 
that this did not deprive him of his right to security ; 
it might be otherwise, if he had originated proceedings 
of his own. As to the case of Ex parte Seidler, it is 
not entered in the Kcgistrar's book. I consider that a 
Defendant does not, by simply defending an appli- 
cation made against him, lose his right to security for 

The order must, therefore, be sustained^ and the 
motion refused with costs. 

(a) 12 iS^. 106. 




^|iHIS case came before the Court upon general a father had 
•*• demurrer to the whole bill, which» in effect^ a power of 

, appointing to 

stated, that by a settlement made on the marriage of an^ of hU 
WUUam Askham and Elizabeth his wife, certain pro- nHj^^'in 
pertj was vested in trustees for the husband and wife breach of ^ 
for their respective lives, with remainder to all and p^s^ssion of 
every or such one or more of the children of the mar- I»rt of the 
riage, in such shares and with or without power of he, in 183^ 

revocation as William Askham should, by deed &c., ap- appointed that 

•' ^ part to his 

pomt, and, in default, to the use of all and every the dauehters, in 

chUdren equaUy. fitunl 

an agreement. 
In 1834, the trustees had, in breach of trust, lent should afto-^ 
a portion of the trust money to William Askham. At wards be con- 
this time there were five children of the marriage, — viz. i^ exchange ' 

the Pldntiff^/oAn and four daughters. for an estate 

^ of less value. 

In 18M>, he 
The bill alleged, that the surviving trustee of the gg^ond^! 
settlement was desirous of retiring and being released pointment, 
from his liability under the breach of trust, and that, previous deal-^' 
in order to release such trustee, and to protect William '"g ^'^^^ ^e 
Askham the father from being called on to pay the thereby ap- 

amount due from him, it was aonreed between the father pointed the 

, 1 . /. , , 1 /. . remaining 

and his four daughters, that the father should appoint portion of the 

to his four daughters, so much of the trust fund as was p^^ty ""^^nd all 
then in his hands, upon an agreement, that the appointees other " the 
should make no claim against the trustee, and should coroprised in 

'^Ot ^^^ settle- 
ment, to his 
daughters. Held, that the first appointment was void ; and| secondly, that the 
portion of the property comprised therein was not appointed l^ the second deed. 

LI 2 


1850. not call on the father to pay the amount; and It was 

AskuaIi agreed, that immediately after the appointment, the 

f^- sums appointed should be assigned to the father, osten* 

sibly in exchange for some real estate belonging to 

him, of less value than the fund appointed. 

On the 18th March 1834, William Askham.^ 
cordinglj appointed the trust funds then in his hands 
to the four daughters, and on the 25th March 1834, 
he conveyed real estate belonging to him to the four 
daughters, in reversion after his death ; the daughters, 
on their part, thereby assigned to their father the shares 
of the trust funds which had previously been appointed 
to them. 

On the 25th of March 1834, new trustees were ap- 

One of the daughters afterwards died* 

On the 19th of April 1844, Waiiam Askham ex- 
ecuted a second appointment of the trust funds, 
whereby, after reciting the previous dealings with the 
fund and the appointment in 1834, and that fVilKam 
Ashham the father was desirous of making an appoint- 
ment of such of the said settled estates, monies and 
premises as remained unappointed, and that the Plain- 
tiff John Askharriy being then entitled under the said 
settlement as tenant in tail, his father considered him 
to be fully provided for, William Askham appointed, 
nominatim^ that the funds not comprised in the pre- 
vious appointment, ^* and all other the sum and sums of 
money, messuages, lands, tenements, and trust estatos 
whatsoever comprised in or affected by the said recited 
indenture of settlement, over or upon which he the said 
William Askham had a power of appointment or dis- 



pofial, should go and renudn, immediately from and 18 JO. 
after, his decease," unto his three daughters. "^^^"^^ 



miUam Askham died in 1848, and the Plaintiff •/<?*!£ «^«k«^«- 
Askliam^ his only son, who took nothing under either 
of the two appointments, £led.this bill, insisting on 
the invalidity of the first appointment of 1834, and 
praying a declaration that it was a fraudulent exercise 
of the power of appointment, and that the deed of ex- 
change was void, and that the trust monies comprised 
in .the appointment of 1834 were divisible as in de- 
fault of appointment. It also sought to make the 
estates of the father and trustees liable as for a breach 
of trust. 

To this bill two of the Defendants demurred for 
want of equity. 

Mr. Roupell and Mr. E. B. Denison, in support of 
the demurrer* 

1. The deed of 1834 is not void, for there was no 
corrupt bargain between the father and daughters. By 
the transaction, the father was merely enabled to re- 
place the trust fund by means of his own real estate. 
The benefit, if any, obtained by him was not such as 
to invalidate the first appointment, (a) j 

2. But if the first deed be altogether void, then the 
parties were remitted to their original position, and the 
father had then the power of appointing the whole 
trust property. This he has done by the second deed 
of 1844, which appoints, not only the portion not com- 
prised in the deed of 1834, but all other sums of money 


(a) Conol/t/ V. M*DermoU, BeaUy, 601. 

LI 3 


1850. oomprised in the settlement. This deed is firee fimn 

^'^rp'^^^ objection, and compiises the whole trust property ; the 

V. Plaintiff, therefore, has no interest in the property and 

Babkbb. eannot sostun this soH. 

Mr. Thimer and Mr. FreeUng were not heard in sop* 
port of the bilL 

The Master of the Bolls. 

In this case the father may have had a perfectly 
good intention, and may have been desirous of dinng 
that which was for the benefit of all the fiumly. The 
Plaintiff, the eldest son, was perfectly well provided for, 
and it was an act of justice in the father, as far as he 
could do it in a proper manner, to provide for his other 
children. But the question is, how is this Court to treat 
this execution of the power ? 

The power might have been exercised exclusively 
in favour of any of the children ; and if it had not been 
mixed up with any private interest or separate con< 
cems of the father, he might no doubt have appointed 
the whole property to his daughters, or any of them, 
to the exclusion of the son. But unfortunately, he 
had got into difficulties, and found himself imder the 
necessity of borrowing money from the trustees. He 
afterwards executed this power in such a manner, as to 
relieve him personally from the difficulty in which he 
was placed, and he personally obtained the advantage 
of that relief, from the persons in whose favour be 
executed the power. Such a transaction cannot stand 
WhoUy independently of any particular charge of fraud- 
ulent intention, or any thing of that kind, it is a thing 
which this Court cannot safely permit. It cannot al- 
low a person who is to execute the power of selectioa 



70 derive a private and separate benefit for himself by 1850. 
.t0 execution (a). I think it plain that he obt^ned an 
idvantage for himself by his execution of the deed of 
1834. It has been ingeniously argued, that the ap- 
pointment which was at first invalid, was afterwards 
made valid. What happened was this: — the father 
bad executed this power in such a way that this Court 
would not permit it to stand, and, because it was 
oapable of being set aside and declared fraudulent by 
thifl Court, I am asked to treat it as if it had never 
been executed at all, and as if a future execution of 
the power were a perfectly free thing : — as J^if the 
matter were open, and nothing had been done; and 
fiiriher, that because there was no corrupt or personal 
interest affecting the second transaction, it must there- 
fore be looked upon as perfectly pure and free from 
every objection whatever. 

How the case put by^ Mr. Roupell would be, viz. 
where a power had been exercised in such a manner, 
that it could not stand, and this being discovered by 
the person who had executed it, he had obtwied the 
concurrence of all the parties interested in undoing the 
execution of that power, and in setting the matter quite 
free again, altogether level and fair, I express no 
opinion. Whether he could then proceed, fairly and 
properly, on a due consideration of the family interest, 
to execute the power exclusively in favour of some, 
even of the very same persons, to the exclusion of 
the one who had been excluded before, and no other, 

I do not think it necessary to give any opinion. It 


(a) See M*Queen v. Farquhar, mer v. Mariin, 2 Simom, 502. ; 

I I r«f . 467. ; Aleyn v. Belchier, Arnold v. Hardwick, 7 SimonSp 
lEden^ 132.; Daubeny y. Cock- 343.; Lee v. Fernie^ 1 Bea9. 
bum, 1 Mer, 626. ; Palmer v. 483. 
Wheeler, 2 Ball ^ B. 18. ; Far- 

LI 4. 


1850. would seem very bard, if it could not be done: if an 
^^^^"^^ error of that sort could not be corrected (a). At the 
r. same time I should feel a very great difficulty, becaose 

Barker. ^ ^ almost impossible for the parties to get into the 
same situation in which they were before. 

Here in 1844 the father was embarrassed by what 
he had previously done in 1834, which he thought and 
intended it to be an execution of the power ; he proceeded 
on that footing, and although he has used words which 
would have an operative effect, if that power had never 
been previously attempted to be exercised at all, yet his 
reference to the power was clearly as if it had previoiuly 
been executed. I do not think that the deed of 1844 
has the same operation as if the previous execution of 
the power were completely void and non-existing. If it 
had been authoritatively and properly declared, that tbe 
first execution of the power was entirely gone, for any 
thing I know to the contrary, the second execution of 
the power might not have been bad; but under the 
drcumstances in which it was executed, tainted as it 
was with the first execution of the power, I cannot 
have any doubt, that it was not a complete and valid 
execution of the power for the exclusive benefit of the 

I am of opinion that the demurrer must be oyer 

(a) See Jackson v. Jackwnf Dnary, p. 120. 




THE testator, by his will dated in 1836, gave and A testator 
(Icviscci his 
devised all his real estate to Wright and Bishop real estates to 

and their heirs, upon trust, as soon as conveniently -^* ®"^ '^•» J" 

might be, to seU, and by and with the said purchase and pay off 

monies, to pay off all incumbrances affecting the said ^ »ncuin- 

estates, and to stand possessed of the residue thereof, as on, and stand 

part of his personal estate. The testator also bequeathed ^<^,^idue 

to Wright and Bishop all his household goods, &c. &c.> ".&> part o^ 

and all other his personal estate and effects, upon trust, estate." He 

to convert the same into money* and by and with the j>fqueathed 

his personal 
produce thereof, and the said produce from the sales of estate to the 

his said real estate and the rents thereof until sale, to ?*™f persons, 

' in trust to 

pay his debts, and funeral and testamentary expenses, convert, and 
and all costs, charges and expenses in carrying the jice thereof* 
trusts of his will into execution; and then, upon trust, and of the 

sales Oi his 

to pay several legacies, and then to pay the residue of ^^\ estates to 
the sjud trust monies to whom he should give the same, P*y his d^ts, 

by any memorandum to be on his said will indorsed. legacies, and 

to pay the 
residue to 
The testator appointed Wright and Bishop his exe- whom he 

^^^^^^- the same by 

codiciL He 

The testator made no disposition of the residue, and oftheresSue. 
the question was to whom it belonged. The Plaintiff, Held, first, 
as the heir-at-law, claimed that portion of the residue cumbrances 

which arose from the real estate. werepavable 

out ot the real 
Mr. estate; se- 
condly, that 
the debts and legacies were payable pan pauu out of the mixed fund, composed of 
the produce of realty and personalty ; and, thirdly, that of the surplus, the part 
arising from realty, belonged to the heir, and that from the personalty to the next 
of kin. 


Mr. Turner and Mr. Elderttm, for the heir. 1. llie 
pereonal estate is the piimaiy faod for diachargtng tbe 
debts &c, tbe realty only cornea in ud ; Boughtm r. 
Bmtghton (a). But if not, then there is a mixed fund 
composed of the produce of real and personal estate; 
and the different charges must be paid rateablj out of 
these funds, Roberts v. Walker (A). 

2. There has been no conversion out and out of tbe 
real estate, The Countest of Bristol v. Hungerford{e), 
and Jesaopp v. Watson (d). Tbe converfiion was merely 
directed for the purposes of tbe will, and as to such of 
them as have fuled, tbe heir is entitled to the produce 
of the real estate not required. Tbe mixed fund miut 
therefore be divided rateably between the heir and next 
ofkin, AoAerfa v. Walkerlb). 

JPhilHps V. PhUlipt (e) will be relied on by tbe other 
side ; but tliat case was viitually reversed by Lord 
Brougham in Henchman v. The Attorney-General (^ 
and in Amphlett t. Par Ac (A); and was disapproved i^ 
by Lord Cottenham in Cogan v. Stephens (i) ; and in 
Waiiams^. Williams {h). 

Mr. Walpok and Mr. G. L. Russell, (qt the next of 
kin. The incumbrances are, in the first instance, pay- 
able out of the real estate, for there is an express tniet 
to sell and pay them (I). 

2. The real estate has been converted out and out* 
for all purposes whatever, not simply for the pni' 


(a) 1 H.Ldi. Co. 406. (0 5L. J. (A^. S.) Ci.p.BB.; 

(4) 1 Run. * Myl. 758. Lemn on Tnutm, p. 698. 

(c) 2 yem. 645. (A) & L. J. (2f. &) Ci. p. 86. 

(lO 1 3fyL 4 K. 665. (0 Haneta v. Aliey. 11 Fa 

[e) 1 Mgl 4- K. 649. ITS.; and aee 3 />. ITnu. IBt. 

(jg) 3 Mj/l. * JC. 4*5. note {«). 

(A) S Ruti. j- Myl. 821. 



poses of the will, but for every purpose (a), and the 
produce therefore belongs to the next of kin. The 
case is governed by Phillips v. PhUUps^ where the tes- 
tator devised Ids freeholds to his executors for sale, and 
declared that the monies should be deemed to be part 
of his personal estate, and he gave the produce of his 
freehold and personal estate to his executors, upon 
trust, to pay his debts, and divide the residue amongst 
certain persons; it was held, that a portion of the 
lapsed residue, constituted of real estate, belonged to 
the next of kin, and not to the heir. It appears by a 
note to Rogers v. Rogers (b), that Femon's report of 
TTie Countess of Bristol v. Hvngerford {c) is incorrect; 
and that the executors took subject to distribution 
among the next of kin. 





3. At all events, the debts, funeral expenses, legacies 
&C., are payable pari passu out of the mixed fund^ 
composed of the produce of real and personal estate ; 
and what remains is divisible rateably amongst the 
heir and next of kin ; Boughton v. Boughton is inap- 
plicable to this case, which is governed by Roberts v. 

Mr. Roupell and Mr. VilUerSy for one of the exe- 

Mr. Turner, in reply, cited 1 Jarman on Wills (d). 

(a) Ndther the heir nor the 
next of kin can be barred by any 
thing but a disposition of the 
heritable subject or personal 
estate to some person capable 
of taking. Pickering t. Lord 
Siam/brd, 3 Vetey, p. 493.; Synq}" 
JOM V. Uonuhif and Hutton^ stated 
by the M. R. in 3 Vet. p. 334. ; 


Johnson v. Johmon^ 4 Beav* 318.; 
Johnton T. Woods, 2 Beat, p. 
413. ; AmphieUy.Parke^ 2 Russ. 
4* M. p. 236. ; FUch v. Weber, 
6 Hare^ 145. 

(p) 3 P. Wms. 193. 

(c) 2 Vem. 645. 

\d) P. 304. 558. 


1 8 JO. The Master of the Bolls. 

SHAI.I.CROSS If a testator intends to dispose of his real and per- 
Wriciit sonal estate, and, for the purpose of the disposition 
contemplated, directs the whole of his real and per- 
sonal estate to be converted into money and applied 
according to the directions he has given or contem- 
plated, but some of the purposes he had in view fail, 
the question then arises, to whom the money belongs. 
Such questions are always attended with some diffi- 
culty, and the object is to decide according to some 
rational and recognised principle, so that the grounds 
on which the case is disposed of may be understood by 
the parties. 

The first question which arises is, on what is called 
"the conversion out and out," — an expression com- 
monly used, and which ought to be clear enough, but 
is nevertheless sometimes attended with great difficulty. 
Here, a conversion is intended for some purposes, and to 
some extent, but to what purposes and what extent is 
made a great difficulty. There is a surplus consisting 
partly of real or the produce of real estate, and partly 
of personal estate, or its produce in the shape of money. 
One question is, whether as between the two classes of 
representatives, this was intended to be a conversion 
out and out. It is no answer, that there was an inten- 
tion to convert into money, because it is settled, that 
where the conversion is for a purpose which fails, the 
produce will go to the heir or next of kin, according as 
it may have been produced from real or personal estate* 

Here, in the first place, there is to be an actual con- 
version, for the devise is to trustees, upon trust, as 
soon as convenient to " dispose of all the said estates, 
and by and with the said purchase monies to pay off all 




incumbrances affecting the said estates.'* The trustees 1 850. 
therefore, hairins: obtained the purchase money instead >*^v^*^ 

*=* f ^ SlIALI.CROSS 

of the land; are to pay off all incumbrances ; '^ and to v. 

stand possessed of the residue thereof as part of his 
personal estate." Clearly, therefore, there was a con- 
version into money, and next there was a clear, dis- 
tinct, and express direction to apply the money in paying 
off the incumbrances. I think this direction imperative, 
and that the trustees were bound to apply this money 
in payment of the incumbrances affecting the estate. 

Then comes a bequest of all his personal estate, 
** upon trust, to convert the same into money, and by 
and with the produce thereof, and of the produce of 
the sales of his real estate and rents &c., to pay his 
debts •* &c. The question is, what is the nature of the 
particular fund, whether it is to be considered as a 
general and common fund made up of the produce of 
the real and personal estate, which is to be applied in 
common, in satisfaction of the funeral expenses and 
debts, or whether, iiotwithstanding the care the testator 
has taken to bring the constituent parts into one mass, 
it ought to be considered as subject to the general 
rule of law, by which the personal estate is the fund 
first applicable to the payment of debts, &c. I cannot 
so construe this will while the case otRobats v. Walker 
and other existing cases depending on that principle, 
remain unreversed. I ought not in this place to re- 
verse that which I consider to be at this time the rule 
of this Court (a). 

The produce of the real estate ought, therefore, in 
the first place, to be applied in payment of the incum- 

(a) In The Attorney-General opposition to Roberts v. Walker, 
V. Souihgate^ 12 Sim, 77., Sir L, but his decision was reversed by 
Skadwell,\.C.E., decided in Lord Ljfndhunt. 







branoes: the residue of the real and personal eataAe 
oaght to be applied, pro ratd^ in satisfying die ddits 
and funeral expenses &c.« and of what remains^ that 
portion derived from the real estate ought to go to the 
heir, and the portion arising from tiie pemmal estate 
belongs to the next of hin. 


JjCCm o* 


Upon an 
alleged mis- 
jmnder of 
bnsband and 
wife as Pe- 
Counsel, upon 
the instruc- 
tions of the 
undertook to 
amend b^ 
making it the 
petition of the 
wife by her 
next friend. 
Held, that the 
solicitor was 
not personally 
for the per- 
formance of 
the under- 


TN this case, a petition, presented hj Mr. and Mrs. 
'^ Nicholson, being called on to be heard, it was ob- 
jected by one of several Respondents, that the petition 
related to or affected the separate estate of Mrs. Niekol' 
son, and ought to have been presented by her next 
friend, and not by her husband and herself jointiy, and 
thereupon, it being observed, that the objection ooold 
not be determined without hearing the case, the Counsd 
for the Petitioners, instructed by their solidtor then 
present, undertook to amend the petition, if required 
by the Court, and the Registrar made a note to the 
effect, that the Counsel for the Petitioners undertook to 
amend the petition, if required by the Court, making 
it the petition of the wife by her next fnend. In con- 
sequence of this undertaking, the objection was not 
further pressed ; and after a very long hearing, an order 
was made for the delivery up to the Petitioners of cer- 
tain bills of costs, and of certain deeds, papers, and 
writings, and the costs of some of the Respondents 
were ordered to be taxed and to be paid to them by the 
Petitioner William Ntchobon. 



At the time when the order was made, nothing was 1849. 
said about the undertaking to amend the petition if ^^^^ 
required, and no order was made in pursuance thereof; Wn.Luii». 
but on the attendance before the Registrar to settle the 
minutes, the Petitioners were required to amend the 
petition, pursuant to the undertaking. The matter 
being afterwards mentioned to the Court, it was or- 
dered, that the petition should be amended by making 
it the petition of the wife by her next friend, and fur- 
ther, it was ordered, that the delivery over of certain 
accounts by the Respondent, Mr. fVeir should be made 
conditional on his costs being first paid. 

Various applications having been made to the soli- 
citor for the Petitioners, to amend the petition accord- 
ingly, he declined to do so, and thereupon a motion 
was made, that Mr. and Mrs. Nicholson might amend 
the petition in four days, or, in default thereof, that 
their solicitor might be ordered to perform the under- 
taking (stated to be his), or pay such costs of Mr. 
Weir, of the petition and consequent thereon. 

Mr. B, Palmer, in support of the application, relied 
on the undertaking given by Counsel on the instruc- 
tion of the Petitioners' solicitor. 

Mr. Beavan, contra, cited the decision of Lord Cot- 
tenham in Gilbert v. Cooper (a) and the following pas- 
sage from the judgment in Johnson v. Ogilby (b), where 
an attorney had signed an undertaking " for and on 
behalf of his clients : " Lord Chancellor. " The differ • 
ence is where the party, thus undertaking for and on 
the behalf of his client, has an authority so to do, and 
where he has not. I£ such undertaker has no authority, 


(a) 17 Law J, N. S. (Ch.) 265. (6) 3 P. Wmt, p. 278. 




In rt 

then it Is a frauds and the undertaker ought himself to 
be liable : but where there is such an authority given 
(as here there was to the attorney), this is only acting 
for another, like the case of a factor or broker acting 
for their principals, who were never held to be liable 
in their own capacities, in which his Lordship being 
Tery clear, the bill, as to this point, was dismissed 
against Heaton the attorney with costs." 

The Master of the Rolls said he entirely con- 
curred in what had fallen from the Court in Johnson v. 
Offilby, but he thought it did not apply to the present 
case. He felt inclined to make the order, but thought, 
as the solicitor had not made an affidavit, it would 
be more satisfactory to give him an opportunity of 
doing so. 

The motion stood over. 

Dec. 3. The solicitor made an affidavit, stating that he did 

not give any personal undertaking, but that it was 
given on behalf of the clients. The motion was again 

Mr. Beavan in opposition to the motion. As to the 
clients, the order cannot be resisted ; all that is asked, 
on their behalf, is a reasonable time to enable them to 

But with respect to the solicitor, there is no liability. 
It must be admitted, that where a solicitor personally 
undertakes, he is personally responsible, and that the 
Court will compel him to perform his individual imder- 
taking, as where a solicitor personally undertakes to 
appear for his client, or to accept service of a writ, or to 



pay the debt and costs or a sum of money for his client, 1849. 

&C. Such an undertakinor must be, and must be ex- -^y^^-^ 

^ ' ^ /» re- 

pressed to be, his own personal undertaking. Wilmams. 

But where undertakings are not expressed to be 
those of the solicitor personally, they are regarded, 
as they are in fact, those of the client alone. Thus, 
in the instances of orders of course, where an un« 
dertaking is given to pay what may be found diic 
upon an order for taxation, or to obtain the Taxing 
Master's report in a month, &c., the liability is that 
of the client alone, and the orders are so drawn up. 
Again, where undertakings are given by Counsel in 
Court, as to speed the cause, to set down the cause on 
bill and answer, to pay money into Court as the price 
of an injunction, to keep an interim account, not to 
proceed pending a motion, or to give judgment in an 
action, could the solicitor any more than the Counsel 
be called on to perform them ? Heretofore it has never 
been understood that a solicitor is personally respon- 
sible on such undertakings. The Registrars^ in draw- 
ing up such undertakings, invariably state them to 
be those of the client, and express them up in this 
form : — " the said Plaintiff by his Counsel under- 
taking " &c. 

Here the fact that the undertaking was that of the 
clients only is proved, first, by the solicitor, whose state- 
ment b not denied by the applicant, secondly, by the 
Registrar's minute, and thirdly, from the notice of 
motion which adopts that view, by asking that the 
clients may perform it (treating it as their undertaking), 
and only upon their default, that the solicitor may be 
held liable. 

The party who now applies never took the objection 

at the hearing; the only person who objected was 

Vol. XII. M m Williams, 


1849. fFinianu, who was declared not to be entitled to Us 

^j costs. The objection then taken was not for the por- 

^ Williams, pose of securing the costs, but to bmd the fieme ameri 

by the decision of the Court ; now, a substantial next 

friend is required from the solicitor, which, in effect, is 

asking that the solicitor may personally pay the costs. 

Mr. It, Palmer, in reply. The argument on bdialf 
of the solicitor is perfectly suicidal The solicitor in 
open Court instructed his Counsel to enter into the un* 
dertaking, and on the faith of this alone, on the pledge 
and responsibility of its officer, the Court proceeded 
to hear and dispose of the petition. If he be not 
compelled to perform it, the Respondents will lose the 
benefit of that condition, on the reliance of the per- 
formance of which the matter proceeded. Had the 
Court anticipated the non-performance of the coiidi. 
tion, it would have at once postponed the hearing until 
it had been complied with. The solicitor, in his affi- 
davit, does not state that he had any authority to 
undertake for his clients : the necessary consequence is, 
that it must be assumed that he pledged his own re- 

He cited Cook v. Broomhead (a), Evans v. Ihor 
combe {by 

Mr. Beavan. The cases cited in reply have no 
application : they were both cases of expressed personal 

The Master of the Rolls reserved judgment 


(a) 16 Fes. IS3. (A) I Cr. ^Jer. 378. 



The Master of the Bolls. 1850. 

The only question which is to be decided on this In re 

occasion is, whether the undertaking, which the soli- ^"^'^mi. 
dtor of the Petitioners instructed their Counsel to 1850. 
imake, is to be considered as the personal undertaking ^^ 
of the solicitor, for which he is personally answerable ? 

There can be no doubt, but that the petition was 
heard on the faith of the undertaking which he caused 
to be given, and that the failure of the undertaking 
gives just cause for great disappointment; but I have 
not been able to find any authority, in which it has 
lieen held, that a solicitor has been held personally an- 
swerable for all the consequences proceeding from the 
fiEulure of such an undertaking as this, given under such 
circumstances. Having regard to the mode in which 
and the circumstances under which it was given, I have 
come to the conclusion, that it can only be considered 
as the undertaking of the client, and, consequently, 
that no order is to be made on such part of the motion 
as relates to the solicitor personally. 

I do not think that the solicitor is entitled to the 
costs of this motion. 

Tliis case was now mentioned as to the costs. ji^i,^ \^ 

Mr. Jt, Palmer asked that they might all be paid by 
the clients. 

. Mr, JBeavaru The whole contest has been as to the 
liability of the solicitor, on which the application has 
fiuled. Either there should be no costs, or the costs of 
the part which has failed ought to be set off. He cited 

Mm 2 the 


1850. the following passage from the judgment of Lord Cat- 
^Inre^ ^«iAam in Murray v. Walter (a), " Where the real sub- 
WiLUAMs. stantial contest between the parties is one thing, and It 
is mixed up with another about which there is no real 
contest, I think it very fit that the party applying 
should pay the costs, if he fails as to that which is the 
substantial matter of contest. Upon the same prin- 
ciple, where a party presents an appeal, although he 
may succeed upon some small matter, he has to pay 
the costs." 

The Master of the Rolls. 

The whole costs must be paid by the Petitioner^t, 
the clients, for they have created them. 

(a) Cr. $• PhUL p. 126. ; and see Slurch v. Young, 5 Beov. 557. 

Note. — As to the personal liability of a solicitor, see In re Hol- 
iand, 2 DowL 4- X. 910. ; Ex parte Hughes, 5 B. 4r Aid. 482.; 
Eoani v. Duncombe, 1 O. <$• Jer. 372. ; Iveson v. Coniufiton^ 1 Bam, 
<$• C 161. ; Mould V. Roberts, 4 Dowl. c^ 72. 719. ; Birchhuhaw v. 
Jackson, 3 //. J, (JT. B.) 253. ; In re Fairthome, 3 Dow, <$• L. 548 ; 
In re Gee, 10 Jur. 694. ; Jacob v. Magnay, 12 X. J. N. S. (Q. J5.) 
93.; Hall v. Ashurst, 1 6V. * 3f. 714. ; Watson v. Morrali, 1 C. «5- 
P. 307. ; Thompson v. Gordon, 15 Meeson Sf fT. 610. ; Latuch v. 
Pasherante, 1 SaVc. 86. ; Anon. 1 Salk, 86, 87, 88. ; Wigg v. Rool\ 
6 Mod. 86. ; Stratton v. Burgis, 1 Strans^e, 114.; Isorymrr v. flo/- 
/m/^, 2 Strange, 693. ; 17/% v. Wei/berg, 12 ilfoflf.251.; Ex parte 
Bodcnham, 8 i4rfo/. <!!• ^. 959. ; Applcton v. ^wi*«, 5 J?/fi/, 148. : 
Burrell v. Jones, 3 J?/ir«. 4" '^'<^« 4^7. ; Macbcath v. Haldimand^ 1 
T. /?. 172.; ^owen v. Morris, 2 Tamu/. 374. ; /n n? Garlaud, 6 
Doip/. p. C. 512. ; Hellings v. 7o««, 3 L. /. O. 5. (C. P.) 164. ; 
Russell V. fff'^cr, 2 Car. 4' A'. 669. ; Seifgioorth v. Spicer^ 4 £ai/, 
568. ; Tdterton v. Sheppard, 3 Don;/. <j- X. 775. ; i?<»x v. Souiheri<m, 
6 i?fl*/, 126. ; Hasleham v. rbunff, 5 Q. -B. /?«p. 833.; Bogert v. 
Beeves, I T<?nw iJ. 418. ; ^^non. 2 Chitty^ 36. 415.; or where pro- 
ceedings are not bona fide. Cockle v. Whitings 1 Busi. ^ M. 43. ; 
Neal V. //bWe», 3 Do/if/. P. C. 493. 



PUGH r VAUGHAN. , ,„, 

Jpril 27. 
uUaj/ 23. 

TTNDER the will of the testator^ the legal estate in ^j, equitable 

the property in question was vested in the De- f?"*"*/*^''. 
.,-_;-___'; _ life being in 

iendant ±,award Vaughan^ on trust " to pay to the possession of 

Defendant John Vauqhan the rents and profits thereof ^^^e estate, he 
, , , """ bis lesNCC 

diuing his life," with remainder to Edward Vaughan had comniitted 

and Charles Vaughan^ as tenants in common in fee, JJ^^ggj "^ 

with remainders over. permit the 

. trustee to 
examine the 
The case made by the Plaintiff was this : — that the condition of 

tenant for life being in possession with the consent of trustee ' 

the trustee of the estate, by indenture, dated in 1845, having 

. . ./. brought eject- 

demised it to the Pldntiff for ninety-nine years, if he mcnt, the 

should so long Hve, and that the -Plaintiff entered into J^^"*?! "°^^ 

^ ' the circum- 

possession. That the trustee had lately commenced an stances, re- 
action of ejectment against the Plaintiff, to recover pos- ^j^^g ^„ j^,"' 
session of the property. junction to 

restrain the 

The Plaintiff charged, that John Vaughan and Ed- the PlaintiflF 

° , . "^ . undertaking to 

ward Vaughan were acting in concert to eject the cut no more 

Plaintiff before the determination of his tenancy, and *e"J^J\^/in! 

by this bill, filed against the tenant for life and trustee, spection. 

he prayed an injunction to restrain the action. 

The Plaintiff obtained the common injunction for 
want of answer, after which, the Defendant) the trustee, 
put in his answer, stating, that the testator, by his 
will, provided that if the tenant for life shoidd attempt 
to alien or charge his life interest, ^^or interrupt his 
trustees and executors in duly executing the trusts" 
of his will, his estate should go over to the person next 

Mm Z entitled: 







entitled: that on the death of the testator in 1841, he, 
the trustee, entered into possession : — that afterwards, 
Anne Vaughan^ the widow (since deceased, who was 
then entitled for life), and John Vaughan the present 
tenant for life, having, without the consent of the De- 
fendant, entered into possession, cut down and sold 
large portions of the timber growing on the said landa^ 
and committed other acts of waste. That upon the 
decease of the widow, John Vaughan entered into pos- 
session, and the receipt of the rents of the said estate;, 
but without the consent and against the wishes an4 
remonstrances of the Defendant. That the Plaintiff 
had notice of the Defendant's title. ** That the estate 
had been greatly neglected, and that the Plaintiff had 
cultivated and used the land in the most improper and 
wasteful manner, and contrary to the course of hus** 
bandry adopted in the neighbourhood, and had felled 
timber growing thereon, and converted the same to his 
own use : — had permitted the buildings on the said 
estate to fall into decay and ruin, and had altogether 
refused to permit the Defendant to enter upon the said 
estate, in order to ascertain the actual state and cout 
dition thereof." 

The Defendant, Edward Vaughan^ having put in this 
answer, obtained an order nisi to dissolve the injunctioo. 

The Plaintiff undertook to shew cause; and the ques- 
tion now was, whether the order ought, upon the merits 
disclosed in the answer, to be made absolute 

Mr. R. Palmer and Mr. C HaUy for the Plaintifl^ 
argued, that the Plaintiff, being equitable tenant for 
life, was entitled to the management and possession of 
the property. They cited Denton v. Denton (a), in 


(a) 7 Beav. 388 ; and see HiU on TrutUe$, 259. 383. 433. 


which case, a testator charged annuities exclusively on 1850. 
his real estate, the legal estate of which he devised to 
trustees, upon trust to pay the rents to or permit the 
same to be received by one for life, with remainders 
over. On the testator's death, the tenant for life took 
possession of the estate and title deeds, and he kept 
down the annuities, but cut some timber. The trustees 
acquiesced for four years, but afterwards proceeded by 
action to recover the deeds and to receive the rents. 
The Court, by motion, restrained the proceedings, on 
die tenant for life undertaking to keep down the an* 
unities, not to grant leases, or cut timber without the 
consent of the trustees, and bringing the deeds into 
Court They offered to give a similar undertaking. 

They argued, that in this case, the trustee having 
acquiesced was bound by the lease, and that the proper 
remedy for the waste, if any, was by means of the cove- 
nant and power of re-entry contained in the lease, and 
that this was not such a question as ought to be dis- 
posed of before the hearing of the cause. 

Mr. Turner and Mr. AUnutty for the Defendant, ar- 
gued, that as the property had been abused, the trustee 
was justified in taking possession and seeing to the 
proper management of the property. 

TTie Master of the Rolls reserved his judgment. 

The Master of the Rolls. May 23. 

The Defendant, Edward Vaughan, having put in his 
answer, has obtained an order nhi to dissolve the in- 
junction which was obtained for want of answer ; and 

Mm A the 


1850. the question now is^ whether the order ought, upon the 
merits disclosed in the answer, to be made absolute. 

I strongly incline to think, that the testator must, 
from the directions contained in his will, be considered 
to have intended, that the trustees of his will should 
have the management of the devised property and the 
receipt of the rents ; and that the Defendant, JEdward 
Vaughauy has some reason to complain, that the De- 
fendant Johuy and the Plaintiff, as he says, acting with 
him, have endeavoured to manage the property inde- 
pendently of him. But there can be no doubt that it is 
the duty of the trustee to protect the property against 
the improper acts of the tenant for life ; and in this an- 
swer it is distinctly sworn, that before the life interest 
of the Defendant John vested in possession, he, with 
Anne Vaughauy his mother, entered into possession, and 
while in possession, cut down and sold large portions of 
the timber growing on the lands, and committed other 
acts of waste. This was before November 1843. But it 
is further sworn, that the Plaintiff has felled timber 
growing on the land and converted the same to his 
own use, and has refused to permit the Defendant to go 
on the land, to ascertain the actual state and condition 

Upon this statement, I think that the Defendant is 
entitled to have the injunction dissolved, and that, under 
the* circumstances, I should not be justified in doing 
what I should have been glad to do, if the parties 
would consent, — continue the injunction, on the Plaintiff 
undertaking to cut no more timber, and to permit the 
trustee to enter on the land, at all convenient times, to 
ascertain the state and condition thereof. . 




May 28. 


rilHE testatrix gave 1000/. 3 per cent, reduced, to ^ ^^^j 

-*- Wallace and Lyon^ on trust to pay the dividends to paid i"to 

such persons as her daughter Margaret Graham^ the ^he Trustee 

wife of J. A, Graham, should, by writing under her Indemnity 

Act. The 
hand, appoint, and, in default of appointment, into the tenant for 

proper hands of her daus^hter, and upon her sins^le re- i"® petitioned 
'^ ^^ to » 1 ° for payment 

ceipt for the same, and after her decease, to J. L. for of the divi- 

life, with remainder to his children. S'n J*"''"' 

' Demg no 

general estate 
The 1000/. was severed, and afterwards transferred held that^ 

into Court under the 10 & 11 VicU c. 96. by M. A. L. the costs 

, __ _ , 111 1 ofthepeti- 

and jtt. JL., who were not the legal personal reprcsenta- tion ought to 

rives of the testatrix. be paid out 

of the income 
and not out 

A petition was presented by jVIrs. Graham^ praying o*^^**^"'^?"'*- 
for payment to her of the dividends, and for payment 
of the costs, charges, and expenses out of the corpus of 
the fimd. 

The death of Mrs. Graham's husband was not proved. 

Mr. Lloyd^ in support of the petition, submitted, that 
the property was given to the separate use of Mrs. 
Graham; Lee v. Prieaux{a)\ and that, therefore, it 
was unnecessary to prove the death of her husband. 

Hie Master of the Rolls concurred ; but said he 
did not see why the costs of the payment into Court 
ought not to be paid out of the general personal estate. 


(fl) 3 Bro. C. C, 381. 




In re 

Mr. J, H. Taylor y for the parties who had paid the 
fund into Courts said, that the fund had been com- 
pletely severed and appropriated, and that the parties 
who had transferred it into Court were not the l^al 
personal representatives. He submitted that the costs 
of this petition ought to be paid out of the dividends 
and not out of the corpus. 

The Master of the Bolls. 

This petition is merely for the benefit of the tenant 
for life, and the costs must therefore be paid out of the 

See In re Cawihome, ante, 56. 


WESTERN Railway Act. 

As to what 
amounts to 

within the 
Lands Clauses 

¥N October 1847, Mr. Essex agreed to sell a portion 
^ of his land to the Windsor^ Staines^ and South 
Western Railway Company, for the purposes of their 
railway, and the Company were to pay the costs, 
charges and expenses, including the surveyor's charges. 
The Company were desirous of obtaining immediate 
possession ; and it was agreed, that the purchase money 
should be deposited in the hands of a banker, until the 
conveyance should be executed. This was done, and 
possession was, in consequence, given on the 3rd of May 
1848. The Company afterwards agreed to grant to 
Essex a lease of the slopes from his land to the rulway. 

In March 1849, the Company were ready to com- 
plete the purchase alone ; but Essex insisted that the 



two transactions should be settled simultaneously, and 1850. 
this seemed to have been acquiesced in. The lease was j^^xhe 
ready in March 1850, and an appointment was made Windsor, 
for completing. On the 22nd of March 1850, the Soot^ 
Railway Company tendered the purchase money and Wkstbrh 
interest, and offered to pay the vendor's solicitor's bill, 
which amounted to 155/. under protest, with 65/. for 
the charges of the vendor's surveyor, whose bill 
amounted to 227/^ This the vendor's solicitor declined 
to receive. The Company, on the next day, tendered 
to the vendor, personally, the purchase money and 
interest, which, being reAiscd, the amount was three 
days after paid into Court. 

The vendor now presented a petition for the transfer 
of this sum, and the payment of the costs, charges, and 
expenses, and the only question was, whether there had 
been a " wilful refusal " to receive the money within the 
meaning of the 80th section of the Lands Clauses Con- 
solidation Act (a). 

The solicitor's bill was afterwards taxed, and 50/. 
16«.8dl was taken off. 

Mr. JZ. Palmer and Mr. Dean^ in support of the peti- 
tion, cited Ex parte Bradshaw {II). 

Mr. Turner and Mr. Wickens, contriy argued that the 
agreement for the slopes was distinct from that for the 
purchase, and that therefore the vendor was not justified 
in refusing to complete the one without the other. 
That the bill of costs and surveyor's charges exceeded 
the amount really due, and that, therefore, the vendor, 
by refusing to complete unless they were paid, was 
guilty of a ^^ wilful refusal " within the Act. 


(a) 8 Ftc^. c. 18. (6) 16 Sm. 174. 


1850. The Master oftlie Rolls. 

In re Tlic I Cannot think that there has been any ** wilful re- 

SxAiNEsTud ^^^^ ^^ ^^^^ ^^^^* ^ ma^t construe this act strictly 
South agidnst the Company, and with reference to the right 

llailw^ay^Act. ^^^^^ ^^7 ^^^e obtained to interfere compulsorily with 

the private property of individuals. I conceive that it 
would be a " wilful refusal," if, without any reason, the 
vendor had refused to accept the purchase money, or 
if his objection had been merely capricious ; but where 
there is a fsur objection, a party is not to be treated as 
having wilfully refused, because the reason for his re^ 
fusal- happens afterwards to turn out untenable. In 
this I quite agree with the opinion expressed by the 
Vice-Chancellor of England, in the case which has 
been cited to me. 

If the party had by pressure compelled the payment 
of an improper bill, there would have been no difficulty 
in afterwards obtaining a taxation; but here, though 
the charges have been reduced as against the Company, 
still it is not suggested that they were improper as 
agtunst Mr. Essex. 

I abo think, that when the Company made the 
tender, it would have been right for them to give dis- 
tinct notice, that they did so, for the purpose of justify- 
ing their paying the purchase money into Court and 
to relieve them from further costs. This they omitted 
to do. 

The Petitioner is entitled to her costs, charges and 
expenses, as usual. 



BUTLER V. GARDENER. ,i/«^ 3(>. 

£\^ the 17th of December 1849, the Plaintiif ob- Pauper order 
^^ t^ned an order of course to sue 2n/orrw(J /}aM/>em. thcf party ' 
The application was supported by her affidavit, which bejng »n re- 
stated as follows: — "that my just debts being first annuity, 
paid, and my wearing apparel and the matter in ques- though it was 
tion in the cause only excepted, I am not worth the of the buit. 

sum of 5/." Costs given, 

though not 
asked by the 

The Plaintiff, it now appeared, was entitled to an ^^|i|^|° 

annuity of 20/. a year under the will of her brother, 

who died in 1847. Though the annuity was the subject 

of this suit, the amount was duly paid by the executors 

to the Plaintiff from the testator's death up to the 15 th 

of December 1849. 

Under the decree made on the 5th March 1850, a 
sum was transferred into Court to secure the annuity, 
and the dividends directed to be paid to the Plaintiff, 
and certain accounts were directed, but which were 
still pending. 

Mr. Toller moved to discharge the order to sue in 
formd pauperis^ 

IVIr. Chandlessy contra. The annuity is the subject 
of the suit, and was properly excepted, such being the 
usual form. The cause is still proceeding in the Master's 
office ; assets are not admitted; and the Plaintiff, who is 
eighty years of age, may yet receive nothing. 



.1850. The Master of the Rolls. 

Butler. The order cannot be sustained. I think that a pauper 

Gardener. ^® bound to set forth fairly the things which are to be 
excepted. Under the circumstances, I should have 
thought the statement not true, because, being entitled 
to 20/. a year, the executors had paid it for some time 
before she made the application for the order. I think 
this ought to have been stated, and that the omission is 
fatal to the order. If there had been no payment, and 
she had nothing but what was to be ultimately recovered 
in the suit, I should have thought the order proper; 
but it now appears that she had received the annuity, 
and that although the annuity is the subject of the suit, 
yet her title to it under the will had been admitted to 
such an extent, that the executors had regularly paid it 
to her. The order must be discharged. 

Mr. Toller asked for the costs. 

Mr. ChandUss. They are not asked for by the notice. 

The Master of the Rolls. 

The Lord Chancellor, as Mr. Walker^ the Registrar, 
informs me, has decided, that costs may be given, thon^ 
not asked for by the notice, (a) I once thought it 
was otherwise. 

Discharge the order with costs. 

(d) See Clark v. Jaques, 1 1 Beavan^ 623. 




Jh re SUDLOW and KINGDOM. March 7. 

May 7. 30. 

SSKS. Sudbw and Kingdom, attomies and par- a bill in- 

Iiamentaiy agents^ had acted for the Dover and p^juc^gj * 

Deal Bailway Company, company was 

ordered to be 
taxed upon 

In 1849, on the application of four of the Directors, ^e submis- 
the bill of costs of the solicitors was referred for taxa- of the direc- 
tion (a) upon the usual submission of the four Directors *?" ^ Py* 
to pay the amount found due. The bill was accord* manager was 

winding up 

On the 25th of January 1850, an order was made J}^ company. 

^ . The Court 

for winding-up the Company {b\ and an official manager refused to 

was afterwards appointed. restrain the 

'^'^ soucitors 

from enforcing 
A motion was now made on the part of the four Sainst^the 
Directors to restrain all proceedings against them for du-ectors, 
enforcing payment under the order for taxation. taking being 


Mr. Turner and Mr. Mackeson, in support of the 

The solicitors ought not to be allowed to proceed at 
law against the Directors in respect of a demand due 
from the Company, for the 29th section takes all the 
estate, eifects and credits of the Company from the 
Directors, and vests them in the official manager ; and 
by the 19th, it is unlawful for the Directors to convey, 
assign, pay or otherwise dispose of any of the property, 
monies or other effects of the Company. The Directors 


(a) 1 1 Beavan, 400. (6) 11 & 12 Vicl. c. 45. s. 73. 


1850. being, by the act, restrained from paying the demand, 
^^^"■^ no proceeding against them ought to be permitted. 


Ki!<oDOH. Again, the 73rd section provides, that after the first 
appointment of the official manager, no creditor shall 
commence any action against the Company, or any 
other person representing the same, or who is sued as a 
contributory thereof, until after proof of his debt before 
the Master. The solicitors, therefore, are bound to 
prove their debt before suing at law. 

Mr. Wdlpole^ contra. 1. The act does not apply in 
this case, for the Directors have personally undertaken 
to pay, and they are personally liable, quite independ- 
ently of the Company. 

2. But if the act docs apply, then this case is 
taken out of its operation by the 58th section, which 
provides, that nothing in the act "shall extend, or 
enlarge, diminish, prejudice, or in anywise alter or 
aflFect the rights or remedies of creditors or other per- 
sons not being contributories," &c. &c. ; " nor shall 
alter or affect any contracts or engagements entered 
into by or with the Company, or any person acting on 
behalf of the same, previously to any such petition, nor 
any action, suits or other proceedings pending at the 
date of such petition." 

Mr. Turner in reply. 

Tlie Master of the Rolls. 

If it is considered, that the order to tax is obtiuned 
on the personal submission or undertaking of the Peti- 
tioners to pay what shall be found due, it would seem, 
that the right to stand in the place of the creditors 




vrbose debt they have paid, is the only right which the 
Petitioners, having paid, have against the assets of the 

The motion must be refused. 


In re 


Mr. Walpole asked for the costs of the motion. 

Matf 30. 

The Master of the Rolls. The point is new. I 
give no costs. 


AprU 15. 

A FTER the allowance of the demurrer (a), the Where a rail- 
"^^ Plaintiif amended his bill, in order to remove 
the objection which had been made available by the 
Defendants upon the argument of the demurrer. 

The bill now stated, " that the Directors were now 
applying, and threatened and intended to apply the 
monies now in their hands &c., and the calls, for the 
purpose and with a view to the completion of the 
railway from Shrewsbury to Stafford^ and not with a 
view to the completion of the entire undertaking of 
the Shropshire Union Railways and Canal Company." 

A motion was now made for an injunction, to restrain 
the Company and Directors from applying any monies 
of the Company, except for the purpose and with a view 
to the construction of the whole of the Railway and 


{a) Ante^ p.302* 


way company 
has formed a 
portion of the 
line, but is 
unable to 
complete the 
whole, the 
Court exer- 
cises a dis- 
cretion in 
granting an 
the effect of 
which will be 
to prevent 
that portion 
being made 
effective and 
beneficial to 
the public and 
profitable to 
the share- 



1850. works authorised by the three Acts ; and firom making 

further calls, except for that purpose; and firom en- 

17. forcing payment, and forfeiting the shares. 

Earl Powis. 

Affidavits were filed, those on the one side tending 
to shew the necessity of executing further works on 
the portion of the Railway already formed, consisting 
of station accommodation, sidings and embankments, 
which, it was alleged, were necessary and essential for 
the accommodation of the public and the traffic This, 
it was stated, would cost about 20,000/. 

The affidavits on the other side tended to shew, that 
such works were neither necessary nor likely to prove 

Mr. J?. Palmer and Mr. JVestoby in support of the 

Mr. Turner and Mr. WiUcock^ contrhy for the Di- 

Mr. Speed for the Company. 

Hie Masteb of the Rolls, without hearing a reply, 
said: — 

In one respect the Plaintiff and the other share- 
holders are to be considered as partners, subject to all 
the obligations of partners; but they are cotempo- 
raneously under obligations of a most important charac- 
ter to the public, and all the Courts are bound to see 
that they do not exercise their powers, otherwise than 
for the benefit of the public, and in the performance of 
their obligations. 


Earl Powis. 


In this particular case^ the Kail way Company is un- 1850. 
able to perform the undertaking entered into with par* ^Jl]^ 
liament ; the consequence therefore is^ that they cease _ v. 
to have all those powers which parliament has conferred 
upon them with a view to the complete performance 
of the whole undertaking. The point has not as yet 
been distinctly decided, whether the Court has sufficient 
authority to relax the rule on any occasion : but what 
I have done, in this and in another ca^, shews clearly 
enough, that I incline to think, at least, that I have such 
a power, if a proper case should arise. In applying 
the jurisdiction of the Court to prevent the application of 
money in making a part of a public work, without any 
intention of completing the remainder, no difficulty at all 
arises in a case where the work has not yet been begun, 
or where no part of it has been converted to the public 
use. The difficulty arises in a case like this, where 
the work has been carried on and constructed to such an 
extent, as to be capable, in part, though imperfectly, 
of answering the purpose which parliament had in view 
when it sanctioned the undertaking. 

If the part thus completed can be made useful to the 
public and profitable to the shareholders, the question 
is, whether the Court, seeing that the purpose of par> 
liament may be better and more effectually accomplished 
by leaving the matter just as it is, (although what has 
been done may not be strictly legal,) ought not to ab- 
stain from interposing its authority to prevent that 
being done which would to some extent forward the 
object of parliament, and at the same time give a profit 
to the shareholders. The inclination of my opinion is, 
that when that case arises, it may be done, though it 
should be with the utmost caution; at least I am so 
far of that opinion, that if I were satbfied, in this 
case, that I was, in this way, forwarding the object 

Nn 2 of 


1850. of parliament to some, though not to the complete and 

7f^^^*^ full extent orimnally intended, and at the same time 


17. benefiting the shareholders, I should abstain from in- 

Earl Powis. 

tcrfering by injunction; but upon reading and con<* 
sidering these affidavits, I am not at all satisfied that 
such is the case here. I am not satisfied, that by 
allowing this large expenditure to be made, under cir- 
cumstances which appear to me illegal, I should either 
be promoting the object of parliament or the profit 
even of the parties themselves. I must not, therefore, 
abstain from acting according to that which has now 
become the proper and necessary rule of this Court ; and 
I can make no exception in the present case. 

It is a great mistake to suppose, that if I should 
allow this to be done, it will be permitting an infraction 
of the law. It may be so in a very indirect sense ; but 
it comes to this : that the Court, seeing that the acts 
sought to be done are not in accordance with the law, 
but that, nevertheless, the circumstances shew, that they 
would forward the public purpose intended by parlia- 
ment and be beneficial to the parties, may abstain 
from exercising its peculiar jurisdiction by way of in- 
junction in such a case. This does not make it in the 
least degree legal*: the Court only withholds its hand, 
xmd refuses the injunction, and does no more ; but the 
Court cannot, by abstaining from granting an injunction, 
imake that legal which is in itself illegal ; and nothing 
vi'hich the Court may do, can exonerate the parties from 
any of the consequences or liabilities to which they may 
be exposed, either at law or here, in respect of these acts. 

The effect of these affidavits is this : — the Defend- 
ants believe, that this portion of the line of railway 
which has been completed would be rendered more pro- 
fitable by a further expenditure. One witness aays that 



the present accommodation is not adequate^ but another 1850, 

says it is. That is not a sufficient foundation on which TT^^^^^"^ 
•' Hodgson 

I can proceed. r. 

Earl Powis. 

I think that I should have a right to exercise a dis« 
cretion, in a case in which it clearly appeared, that a 
portion of the whole railway was ready to carry traffic 
upon it, but that such traffic could not be procured for 
it without more station accommodation. 

I can conceive cases of that sort brought forward 
with such strong circumstances that I should think it 
very fair and reasonable not to interfere by injunction. 

Injunction granted. 

The terms of the order were afterwards discussed, 
and ultimately, the Master of the Bolls refused to make 
any order as to the calls, or to prevent the Company 
from paying the debts contracted before the date of the 
notice of motion, and the current expenses of maintain- 
ing and working the line. 

Nn 3 




March 16. 


A. feme covert^ 
with her hus- 
band in Scot' 
Jand, was 
entitled to the 
produce of a 
real estate in 
directed to 
be sold. 
Upon proof 
that, by the 
law of her 
domicil, her 
estate vested 
absolutely in 
the husband, 
and that she 
had no equity 
to a settle- 
ment, the 
estate, being 
unsold, was 
directed to be 
conveyed to 
the husband 
in fee. 

JSY an indenture dated in 1830, a freehold house 
:*^ was conveyed to trustees, in trust, after the death 
of a tenant for life, to sell and hold the produce on 
certain trusts ; the ultimate trust being to the next of 
kin of Jane M^Eiver (a). 

The tenant for life died, and the house remained 
unsold. In this suit the next of kin were found to be 
Isabel^ the wife of James M^Hardy^ and Catherine Cd- 
vilU (since dead). 

At the hearing, Isobel M^ Hardy and Henry Buckle 
(the administrator of Catherine ColmUe) were declared 
entitled to the produce of the property in equal moietiefl. 

. Before the decree had been drawn up, Jami 
M^Hardy presented a petition, stating that he and his 
wife were born in Scotland^ and had always been, and 
were now, domiciled there ; and stating that, by the law 
of Scotland^ marriage operated as an absolute assignment 
of the wife's personal property to the husband, and 
that the wife had no equity to a settlement out of it* 
The petition prayed, that the trustee might be directed 
absolutely to convey the freehold house unto the Pe- 
titioner James M^Hardy^ and the Defendant Henry 
Buckle^ and their heirs, as tenants in common, the 
Petitioner and Buckle being desirous and electing to 


(a) See M^ Hardy v. Hitchcock, 1 1 Beavan, 73. 93. 


take the estate itself, without converting it into money I860, 

bj sale. 

The petition was supported by the affidavit of a 
Scotch advocate, which was as follows : " That, by the 
law of Scotland^ the whole personal estate of a married 
woman vests absolutely in her husband, and that by 
such law, a married woman is not entitled, in equity or 
otherwise, to any settlement of her personal estate, or 
any part thereof; but that a husband is entitled to 
receive the whole of the personal estate of his wife, 
without any consent or concurrence of his wife, and 
without making any settlement thereof, or of any part 
thereof, for her benefit." There were, also, other affi- 
davits proving the domicile. 

Mr. Turner and Mr. JV. R. Ellis, in support of the 
petition, contended, that, by the trusts of the deed, the 
realty was converted into personalty, to which, by the 
law of the 'domicile, the husband was absolutely en- 
titled. He had, therefore, a right to take the estate 
itself, without going through the process of selling it. 

Mr. Roupell and Mr. Beavan for the Plaintiff. 

Mr. Cairns for Buckle. 

The Mastbb of the BoLLS. 

The Petitioner, being entitled to the produce of the 
real estate, may exercise his option of taking it as it 
stands, without a sale. The decree must recite that he 
has made the option. 




Nn 4 



jpru J5. BYNG V. CLARE. 

A motion HPHE answer was filed on the 11th of April, and was 

SfisoS of v^ P'cat length. The Defendant obtained and 

the common served the order nisi for dissolving the injunction ; but 

appewed^that up to the present time, the Plaintiff had been unable to 

the Plaintiff obtain an oflSce copy of the answer, 
had not been ^"^ 

able to pro- 
cure an of- j^ ^Poller now moved to dissolve, and insisted that 
nee copy oi 

the answer, the Defendant was bound to elect to shew merits or 
S^ntThim exceptions as cause. 

to elect whe- 

shew excep- ^« Shapter, contrh. The Plaintiff not haying been 
tions or ^\q to procure an office copy is not in a situation to 

elect. He should have some reasonable time for that 


Mr. Toller, in reply. That would be contrary to the 
dedsion in Stanley v. Bond (a). 

The Master of tlie Rolls. 

Nothing could be more unreasonable than to call on 
the Plaintiff to elect upon the answer, without giving 
him an opportunity to look into it. As the answer will 
be obtained to-day, I will give the Plidntiff till Satur^ 
day the 20tb to elect. 

{a) SBcavan, 175. 




RICKFORD V. YOUNG. j/«y 2^, 23. 

A CLAIM had been prepared on behalf of executors Leave given 
•^^ and devisees^ in trust, of a will, seeking to have ^o^xecutors 
the will established and the trusts carried into execu- in trust to file 

tion, and the estate administered. have^c^wiU 


Mr. PF. Morris applied, under the 6th Order of 22d performed, 

April 1850 (a\ for leave to file it. a^^.thc ad- 

^ roinistration 

of the estate. 
T/ie Master of the Rolls. Send up the claim and 

a copy of the will, and I will see if it is proper that the 

application should be granted. 

The Master of the Rolls. I have looked Into May 23. 
the claim, and think that permission may be ^ven to 
file it. 

(a) 1 ] Beawin^ xxxii. 



April 18. In re ELMSLIE. 

Ma^ 23. 

A meeting fTlHIS was a petition presented by Mr. Knill for the 
7rXb^ taxation of a biU of coets of Mr. Hlmslie, which 

portant mat^ had been paid on the 23rd of August 1849> under the 

ters on the p ^^ • • , 

83rd of following circumstances : — 

^.^^ and 

were to be ^ 1847, there was due from KniU to Messrs. Jack" 

E^^ h^i'^f'^* ^^'^ (*^^ representatives of Mr. Jackson^ KnUV% deceased 

costs was partner), a sum of 15,500/., and to the representatives 

eve^^^b^^ of JbAn Blenkam, deceased (another partner), Il,000iL 

fore, and pay* There was also due from Knitt to the London Assurance 

then insisted Loan Company a sum of 4000iL, secured by a mortgage 

on, though created by the three partners on some wharf property. 
thebiUwas ^ ^ f i^ J 

objected to. 

Upon evi- Qn the 29th of November 1847, two suits were insti- 

dence of over- 
charge, tax- tuted by Messrs. Jackson in the Vice-Chancellor of 

**d" d^ JF/i^/awrf's Court, against Knill and others ; the object 
payment. of the first suit being to compel Knill to pay the sums 

attadied u>** ^^® *^ ^^^ London Assurance Loan Company, in 
the V. C. E., exoneration of the estate of Jacksoiiy and to the repre- 
mi8ed^;^S^one sentatives of the other partners, the above sums due to 

there was them, 

an order to 
dismiss on the 

payment of rjx^^ object of the second suit was to take the partner- 

costs, and the , •* *^ 

other was ship accounts, 
stayed only. 
The costs of 

both were paid After the suits had proceeded to some length, the 
sure ancT^ parties agreed to compromise, and that the suits should 

there were be dismissed. Knill was to pay all parties their costs, 


Held, that ^ between solicitor and client ; and the London Assur- 

h*d ^^k' ^^'^ Loan Company agreed to advance Knill a sum of 

tion to order 40,000il; 

a taxation. 


iO^OOOil, which was to be applied in discharge of the 1850. 
several liabilities. 

In re 

B7 an order of the yice-Chancellor of England, 
dated the 6th of July 1849, it was ordered, that upon 
payment of the above several sums, and also upon pay- 
ment by the Petitioner of the costs of all parties to the 
first-mentioned suit, and also of and relating to the car- 
rying into effect the arrangement and compromise, as 
between solicitor and client, suck costs to be taxed by 
one of the Masters of the Court, in case the parties 
should differ about the same, the bill in the first men" 
turned suit should stand dismissed. 

The proceedings in the other suit were merely stayed. 

Everything being ready, an appointment was made 
for all parties to meet on the 23rd of August 1849, 
to complete the transaction. On the evening before, 
ElmsUe (the solicitor of Messrs. Jackson in the suits) de- 
livered his two bills of costs, amounting to226/.ll«.2d!., 
and 165/. 5s. 6d. The parties all met on the 23rd to com- 
plete ; and the following, in effect, is what took place on 
the occasion : — The Petitioner complained that he had 
not had sufficient time to examine the bills thoroughly, 
but observed some improper charges in the bills. He 
proposed either to pay a sum on account, leaving the 
residue unpaid till the amount could be agreed or 
settled, or to deposit the whole at once, leaving the 
amount payable to be adjusted. The Respondent re- 
quired either the unconditional payment of the whole, 
or that the whole business should stand over, to give 
an opportunity of taxing the bills before the transac- 
tion was settled. The Petitioner thereupon paid the 
bills under protest. 



1850. After the long yacation, the parties attended before 

^^^T^"^^^ the Taxing Master to have the bill in the first suit 
EijAsLiR. taxed under the order; but he declined to proceed^ al- 
leging that he had no jurisdiction since the bill had 
been pidd. 

This petition was presented by Knill for the tax- 
ation of JElmsUe^a bills, on the ground of pressure and 
overcharge) items of which were specified. 

Mr. Turner and Mr. Baggallayy in support of the 
petition, cited In re Wells (a). 

]Mr. Roupell and IVIr. Terrell^ contra, argued, first, that 
there was no pressure or sufficient overcharge; and, 
secondly, that the taxation could only be in the suits, 
one of which was still pending, which, under the General 
Orders (A), could only be ordered by the Yice-Chancellor 
of England. In re Howard (c). 

Mr. Baggallay, in reply. 

The Master of the Rolls. 

This is a petition to tax two bills of costs which 
have been incurred in two difierent suits, and these 
suits were discontinued, on an agreement to come to a 
compromise between the parties, by virtue of which one 
of them is dismissed. The compromise could only be 
carried into efiect by raising a sum of 40,00021, whidi 
was to be advanced by the Assurance Company, and 
the costs of the suits were to be paid by the Petitioner. 
All matters having advanced to that state, the reason- 

(a) 8 Beavan, 416. (c) 8 Beavan, 424. 

(b) 9th Order of Afoy 1837. 
Ordmet Can. 1 14. 


able expectation was, that the matter would be com- 18;j0. 
pleted without further loss of time. It was proposed j 
by a letter of the 16th oi August^ that there should be Elmsme. 
a meeting on the 23rdy for the purpose of completing 
the whole transaction, by having the money advanced, 
making the several payments, and executing the deeds, 
and thus bringing all matters to a final conclusion. 
Part of the necessary arrangements was to pay the 
two bills of costs. It being proposed that the settle- 
ment should be on the 23rd, it appears to me, that 
if the costs were to be paid, the persons who had 
to receive them ought, in the fair discharge of their 
duty, to have given the other parties due time to look 
at the bills, between the time of the appointment and 
the day appointed for completion, and that the person 
who had to pay the costs had a reasonable ground to 
expect, that 'an opportunity would be given him to 
examine them. 

On the afternoon of the day before the day appointed 
for completion, the bills of costs were sent. 

Now only consider what the parties had to do on the 
23rd : they had to receive and to pay ; the deeds were 
to be executed, and an arrangement had been made 
with numerous parties for that purpose ; and, unless the 
costs w^ere paid on that day, the matter could not be 
completed. There having been no previous and suffi- 
cient opportunity to examine and moderate the bill, if 
necessary, all the parties meet, and then the question 
arose whether these costs should be paid. An offer 
was made to pay a sum of money on account, and to 
have the amount settled afterwards ; the costs were 
complained of, and it was, in effect, said, '^I will 
either pay a sum on account, or if you do not choose 
to accept that proposal, I will deposit the whole sum, 



1850. and you shall receive what is due when the amount 
^'^^*^*^ has been settled : there are grounds of oomplaint, and, 
Elmslie. therefore^ it is not fit that I should pay the whole.'' 
These gentlemen do not express themselves very dis- 
tinctly ; but taking the affidavits together, I am satisfied 
that what passed on the occasion was to this effect : — 
there was a complaint of the amount charged : — there 
was an offer either to pay something on account, leav- 
ing the rest to be settled by taxation, or to pay the 
whole sum, leaving the amount to be settled by tax- 
ation. Consider what would be the effect of breaking 
up a meeting of that kind. It must break up the 
arrangement, and there must be a new meeting. Is it 
not pressure to say, under such circumstances, *^ if you 
do not pay my bill of costs now, the whole matter shall 
be put off.'' Was it possible to avoid the inconvenience 
which must arise from the postponement in any other 
manner than by payment of the bill ? I think not. T 
think, therefore, that the bill was paid under pressure. 

Then we come to the charges in the bills. They 
do not, in all, amount to a large sum ; but to charge 
340 folios when only 196 are necessary, is that a proper 
mode of conducting business ? The thing might happen 
by accident ; but if it were by design, is it honest ? Is it 
not an attempt at extortion? I have no doubt that 
there arc overcharges sufficient to justify the taxation 
of the bills of costs. 

It is said, that I have no jurisdiction, because the 
costs relate to existing suits attached to another branch 
of the Court ; but as to one, there is no difficulty, for 
it is out of Court. There have been overcharges and 
pressure ; and it is the duty of this Court under this act 
to have the correct amount due ascertained. The qne»* 
tion is, whether there is jurisdiction in the other suit, 



wUch is compromised hj an agreement, by virtue of 1850. 
which and not by any order in the cause, these costs arc '^-^^ 

. . . In re 

to be paid. I very much incline to think that, under Elhslib. 
the circumstances of the case, a taxation may be ordered 
of costs agreed to be paid, by a special and separate 
agreement, by a proceeding not in the cause. I think 
I ought to make the order under the statute, under the 
circumstances of the case ; but I will consider it 

The Master of the Rolls. May 23. 

Under the circumstances disclosed in the affidavit, I 
am of opinion, that payment of the two bills of which 
the taxation is now sought was obtdned by undue 

The bills were delivered in the afternoon of the day 
preceding the day appointed for the final settlement of 
a transaction, by which the Petitioner was to raise the 
sum of 40,000Zi to be applied in satisfaction of the de- 
mands of several parties, who were to meet, and did 
meet, for the purpose of receiving their demands. Two 
things were evident : 1. That there had not been suffi- 
cient time to examine the bills ; 2. That any delay in 
the settlement of the transaction must necessarily be 
attended with very great inconvenience, and also with 
considerable expense or loss to the Petitioner. 

The affidavit of the Petitioner is supported by the 
affidavits of William JElam and John Jameson Innes; 
and, notwithstanding the contradictory evidence adduced 
by the Respondent, I thiuk the facts are, that the 
Pe^tioner complained that he had not had sufficient 
time to examine the bill thoroughly, but that, never- 
theless, he had observed some improper charges; and 



1850. desiring, as he reasonably might, to complete the trans- 
^y^^^ action with those who had to advance and to receive 

In re 

Elmslie. the money, he proposed one of two expedients for the 
future settlement of the costs: — 1. To pay a sum on 
account, leaving the residue unpaid till the amount 
could be agreed or settled. I think the Respondent 
was justified in declining, as he did, to accede to tlus 
proposal 2. To deposit the whole at once, leaving the 
amount payable to be adjusted. 

But the Respondent required either the uncondi- 
tional payment of the whole, or that the whole business 
should stand over, to give an opportunity of taxing 
the bills before the transaction was settled, the effect of 
which was, that, unless the Petitioner would submit to 
pay the charges without ascertaining whether they 
were excessive or not, he must suffer the loss and in- 
convenience arising from the postponement of the trans- 
action. I think this was undue pressure. 

The charges stated to be excessive are not very great 
in amount ; but each of them is so far wrong, that even 
if those actually proved were less than they are, I 
should think them ground for taxation, in a case ^vhere 
undue pressure has taken place. 

The principal objection made was, that, as the cost^ 
in question were costs in causes, they could not pro- 
perly be taxed under the statute. But of the two 
causes, one was dismissed, and the proceedings in the 
other stayed, and, under such circumstances, there is 
nothing to impede the jurisdiction under the statute. 

See Robins v. Mills, 1 Beav. 227 ; and Webb v. Grace^ ante, p. 489. 



HORLOCK V. WILSON. ^^^^ 3^, 

XN this case, the Plaintiff liad entered an appearance An appearance 
"*" for the Defendant, who having neglected to an- was entered 
swer, the Plaintiff filed a traversing note, which the fendant, and a 
56th Order of 8th of Ma7j 1845 (a\ requires to be traveling 
served **in the manner directed by the 19th and 2l8t An order was 

Orders of the 26th of October 1842 " (b). The Plaintiff «*1^^ J^j; =f " 

^ ^ ^ vice of It at 

being unable to comply with this, the Defendant having hisi last place 
neither appointed a place for service, nor being strictly ^ ^®** ^^^' 
defending in person, 

Mr. Craiff, on behalf of the Plaintiff, now moved 
for liberty to serve the traversing note at the De- 
fendant's last place of abode, and on his present 
solicitor (but who was not acting for him in the cause). 

Tlie Master of the Rolls made the order 

(a) Ord. Can, 305. (b) Ord. Cart. 214, 215. 

See Laurie v. Bum, 6 Hare^ 308. ; and Mou v. Buckley ^ 17 Law 
J. y. S. (Ch.) 414. 

Vol. XIL O o 



Fraciice ns to 1M^K> BAGGALLAY o.^^'&ieA in the case of a claim, 
8^n«^own ifX gjjj ^ question arose as to the mode of eettiiig 
bearing. it down for hearing. 

The Master of the Bolls. 

I am anxious to relieve the parties from the expense 
of a epedal application to set down claims for bearing. 
I have thought that they might be set down in tbe 
paper, in the same way as motions before tlie Lord 
Chancellor, by a simple application to the B^istxar, 
and that they might properly be heard with the con- 
sents and short cauaes. I will make inquiry. 

Note. — In consequence of the above, the practice was r^ulat«d 
bj- a notice of the Judges of the 8lh of June (a), which was after- 
wardE varied b; notices of the Gth (i), Ttb (c), and 16th of Abrnw 
6er I8SO(iO. 

(o) Ante, p. \s. (c) Ante, p. xx\n. 

(b) Anti, p. xxxi. (d) Ante, p. uxiii. 



PENLEY V. PENLEY. '^"''^ ^' 

TIE testator by his will expressed himself as fol- Bequest to 
lows : — " The residue of my property, &c. &c. I Sam or his 
likewise ^ve and bequeath to my said three sons, W?/- HHJ^®2i''t th 
liam, George and Aaron Penler/, in trust, to provide for son who sur- 
a legacy for my housekeeper Mrs. Mary Ann Trigg^ ^Ss^utdy 
should she be living in my service at the time of my entitled, and 
decease, and not otherwise, the sum of 52/. per year, ^jpg„ ^.^yij 
for her life only, clear of legacy duty, to be paid her only take by 
quarterly from the time of my death : this sum I wish in case of the 

to be secured, and at her death to qo to my son Wil- death of their 

liam or his children. 

" I likewise give unto the said Mary Ann Trigg as 
much of my furniture as will furnish a bed-room and 
sitting-room ; the overplus of the last-mentioned pro- 
perty I leave to be divided between my said three sons 
and my daughter^ or their children ; my daughter's share 
to be kept in the hands of my said three sons, for her 
or her children's sole use, and free from the controul 
of her husband." 

A sum of money had been set apart to provide for 
the annuity to Mary Ann Trigg, and, for that purpose, 
had been invested in the sum of 1733/. 6s. Sd. 3 per cent, 
consols. Mary Ann Trigg having died in 1849, this 
sum was claimed by the testator's son William^ under 
the direction, that, on the death of the annuitant, it 
should go to the testator's son " WilUamy or his children." 
He had had six children, who were born in the testator's 

O o 2 Mr. 




Mr. Birdy for the testator's son William Penley^ 
having stated^ that this case was governed by the deci- 
sion of the Master of the Rolls on the former occasion, 

Tlie Master of the Rolls called on the other side. 

Mr. Willcocky for the children, argued that "or" 
was to be construed " and," and that the children took 
a share, as in Richardson v. Spraag (a), JEccard v. 
Brooke (^), Horridge v. Ferguson (c), and Penny v. Tur- 
ner (rf). He distinguished this case from Montagu v. 
Nucella (e) ; there being in that case a gift over, in casc- 
anj nephew should die without a child. 

The Master of the Rolls, without hearing a reply, 
said that upon the whole will he considered that the 
children were only intended to take by substitution, in 
the event of the death of the eon in the lifetime of 
the testator. 

(a) 1 P. IVmt. 433. 

(b) 2 Coje, 2X3. 

(c) Jacob, 583. 

(d) 10 Juriit, 768. ; and J 5 
Sim. 368. ; and 2 PhiflipM, 493. 

(e) 1 Russell, 165. ; and sec 
Roper on Legacies, 1405. 

Note. — On a former occasion, it had been held, that the 
daughter took her one-third share of the residue absolutely. Sec 
Whitchcr v. Penley, 9 Beavan, 477. 



EARLY V. WHITLING. ^„„, ^i. 

TN this case a claim had been filed bj leave of the Leave given 
Court, respecting a legacy of 500/. belonging to the *^ ^^^^ » 
Plaintiff, and vested in three trustees. 

After the claim had been filed, it was discovered, 
that Whitling^ one of the trustees, had previously re* 
tired, and that Townseiid had been substituted in his 
stead as trustee. Under these circumstances, 

Mr. Bevir moved for leave to amend the claim. 

The Masteb of the Kolls. It seems very reason- 
able : let leave be given. 

Oo 3 



J^^ 22. DICKER V. HUGO. 

Practice |^N the 6th of March, a bill was filed for the ad- 

wbere claim \W . 

filed after Inll ministration oi an estate. 

exhibited for 

the same pnr- 

IKwe, and de> On the 22d of Mat/y a claim was filed for the same 

Wi made in purpose by another party, 
the suit before 

heard. On the 31st of May, a decree was made, by consent, 

in the suit, the same solicitor acting for both parties. 

Mr. Morris now appeared in support of the daim, and 
asked for a decree under it> the decree being coUusiye. 

Mr. JValpole and Mr. Shapter, contrh. The Claimant 
will obtain every advantage by going in under the 
decree, and no order can now be made. 

The Master of the Rolls. 

There was very good reason for filing the claim ; but 
there is no use in prosecuting both the suit and claim. 
The Claimant is entitled to go in under the decree, 
and the order I must make is: — that the Court, being 
informed that there is a decree, does not think fit, at 
this time, to make any order, but gives leave to the 
Claimant to apply, in case the decree is not properly 




HOSPITAL («> ^^ '*• 

A DEFENDANT, being served with a copy bill, where a De- 

-^^^ had entered a special appearance under the 27th ^"^'^f^ ^"^ 

Order of August 1841. special a|;>- 

pearance, it 18 
not necessary 
Mr. William Morris moved for leave to enter a me- to enter a 

morandum of service under the 24th Order of August ^^J^ ^ 

1841 (£). The affidavit did not state when the De- the copy bill. 

fendant had been served, but he submitted that this 

was not necessary in this case. 

The Masteb of the Rolls. 

If the Defendant has appeared, what more do you 
want ? Surely you have got all that is necessary. 

Mr. Morris submitted that the 24th Order required 
a memorandum of service to be entered, notwithstand- 
ing the special appearance of the Defendant, for other- 
wise there would not appear any constat of the found- 
ation for such appearance, viz. the service of a copy 

The Masteb of the Rolls. 

You may take the order for liberty to enter the 
memorandum of service, but I think it quite unneces- 
sary after the Defendant has appeared. 

(a) Ex relatione, (fi) Ordines Can, 171. 

See Maude v. Copeland, 1 Colfyer, 505. 

Oo 4 




A, and i?. had IVf R- IRWIN and Mrs. Browne^ havitig conflictiTx?^ 
clahu's t'o^ claims to a freehold estate in Ireland, the solicitcw;? 

freehold of the latter, on the 5th of August 1844, proposed as 

proposed that follows : — " We have been instructed by Mrs, Browne 

the c»tate ^ make the following proposal to you, as solicitors for 
should be sold . , »^ 

assoonaspos- Mr. Eyles V. IrwiUy that the estate shall be sold as 

sible, ^"^^**^ soon as possible, and three-fourths of the net proceeds 

Tided between paid to Mrs. Browne, and the remaining one-fourth to 

uStf^S? Mr. Eyles V. Irwin. That untU sale, a B^ceiver shdl 

a Receiver be appointed, who shall remit the rent to Mrs, Browne 

appointed to ^^^ ^^^- 1"*^^ '^^ the same proportions. That the costs 

divide ihc attending the sale ^shall be paid out of the purchase 

rents in the _ , * - . 

same propor- money, and each party to pay any other costs they may 

toons. This incur. Mr. J?. K Indn to have the option of purchasini; 

was accepted ^ r i o 

by B. Before at a valuation.'' 
the sale, 
which was 

postponed. After some correspondence, the solicitors of Mr. 

tate. Held Ir^oin, on the 16th of Novembei' 1844, wrote as follows : 

that the pro- « We are instructed, on behalf of Mr. EyUsV. Irwin, to 
perty had . f 

been con- accept, under all the circumstances of this case, the oSex 

verted into contained in your letter of the 5th of August last." 
personalty, "^ '' 

and that vl.'s 

an?not his' ^^ ^^ afterwards discovered, that a considerable por- 
heir, were tion of the lands was held on leases for the lives of some 
In such "^'^^ ^^^ persons ; and it was therefore considered ad- 
cases, the visable, that the sale of the estate should be post- 
act is to be poned till the leases had expired, and it was thereupon 

considered, agreed, that until a sale should take place, the rents 

and not the ° . . . . 

intention as should be divided between the parties, in the proportions 

f^tVX before mentioned. 

sonal repre- 
sentatives. A 


A Receiver had been appointed ; but before any sale 1850. 

had taken place^ and in December 1845, Mr. E. V. Irtoin jj^^p^ 

died intestate. f- 


James Brooke Irwin was his heir at law ; and he, on 
hb marriage, had agreed to settle all his property on his 
wife (a). The question in this cause was, whether by 
reason of tlie above contract, the real estate was to be 
considered real or personal estate ; L e. whether it be- 
longed to the Plaintiffs, representing the heir at law, or 
to the Defendants as next of kin. 

Mr. Turner and Mr. J, J. Jervis, for the Plaintiffs, 
representing the heir, contended