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within the provisions of the trust indenture, should be Jessel, in reply. paid and allowed out of the trust estate.
THE MASTER OF THE Rolls held that the Taxing The Taxing Master also disallowed the second objec- Master was right; the objection substantially taken tion, on the ground that the necessity and proper was that a large portion of the costs had nothing to incurrence of such costs were proved by the affidavits do with the trusts ; but the words of trust in the deed and depositions before him, and by personal examina
were very wide, and the actions brought against the tion of the solicitors and production of documents and plaintiff were “in relation to the trusts.” The mort. papers, no counter evidence whatever being adduced, except the depositions of the defendant Carnochan gage also bore a strong relation to the trusts, and
could not be treated distinctly from it. The plaintiff on cross-examination; and he stated that all the wished the actions defended; or, at least, gave no items of charges for the several abstracts and journeys notice to the contrary. The abstracts followed the charged in the costs were particularly verified and sup- same rule. The petition must be dismissed with costs. ported by evidence.
The plaintiff thereupon filed a petition, praying that There was also an adjourned summons to discharge the Taxing Master might be directed to review his or vary the Chief Clerk's certificate. taxation of the said bill of costs.
Jessel objected ; 1st, that many of the items were Jessel, for the plaintiff, contended that the answers to not vouched at all; and, 2nd, in some cases the the objections were insufficient. The first answer avoided vouchers produced were for smaller amounts than the the question altogether, and the second answer was no sums allowed. answer to the objections taken against the items : the Selwyn, Q.c., contended that the summons, as answers should be more specific. He then proposed to seeking to re-open the whole account, some items of go through the objections, which were extremely which were admitted to be correct, was altogether numerous, by classes.
wrong, and should be dismissed with costs. 1st. A large portion of the costs allowed were personal ones, relating to actions brought by various THE MASTER OF THE ROLLS said that under the creditors against the plaintiff after the trust deed old practice when the Master made a report, and had been executed. All the attendances on the exceptions were made to it, they were always specific, trustee in connection with such actions were fair but Sir L. Shadwell had admitted and approved of charges, but not costs incurred on behalf of the general objections (Moore v. Langford, 6 Sim. 323). plaintiff. The words in the deed, however general, He would have gone into the merits of the case at once, could not take in charges for legal expenses incurred if the defendants had wished it; as they were not ready, beyond the scope of the trust deed.
he should adjourn the summons into Chambers, and 2nd. The second class of charges to which he direct the plaintiff to furnish the other side with a objected was for abstracts and copies of abstracts list of the items he objected to. The costs of the furnished on the occasion of the mortgage to Pearson, present application to be considered on the hearing in although Pearson, as the plaintiff's solicitor, was fully Chambers. aware of the state of his title. No evidence was furnished that these abstracts were necessary at all. The only costs provided for by the deed of trust, in
17 Nov. 1863. relation to the mortgage, were the costs of executing it.
Heir at Law-Suppression of Will-Issue 3rd. Out of the number of journeys charged, a large
“ devisavit vel non." ber were on the plaintiff's private account. There no evidence of their being necessary, except the
An heir at law who suppresses or destroys a will, is defendant Carnochan's affidavit that, “to the best of not entitled to an issue devisavit vel non. his knowledge and belief, the said journeys were
Hampden v. Hampden (3 Bro.P. Ca. 551), followed. necessarily and properly taken for the benefit of the trust estates comprised in the deeds of assignment and Robert Williams deceased, who at his death was seised
The plaintiffs were the widow and younger son of mortgage.”
in fee of two small farms in Anglesea. The defendant Seluryn, Q.C., and W. J. Bovill, for the defendant, was his eldest son and heir at law. The bill alleged John Sykes.
that Robert Williams had made a will in the year The intention of the trust deed was to make the most 1858, devising the two farms to the plaintiffs absoliberal provision. When Robert Sykes found himself lutely, which will was written out for him at his trustee of the property, he was assailed on all sides, dictation by one Francis Jones, a neighbour, and was and constant resort to his solicitor was unavoidable. executed by the testator in the presence of, and was He was obliged to defend the actions against the attested by, Francis Jones and another witness ; and plaintiff, to save him from immediate execution, which charged that the defendant had obtained possession was the primary object of the trust deed.
of and had fraudulently suppressed or destroyed the
Master of the Rolls. } WILLIAMS v. WILLIAMS.
will, and had entered into possession of the farms, warranted the conclusion that the will had been alleging that the testator had died intestate, and that destroyed or suppressed ; and upon this point, after he himself was entitled thereto as his father's heir going through the affidavits, his Honour stated that at law. The bill prayed that the defendant might be the present was exactly a case for the cross-examination ordered to produce and deliver up the will to the of the plaintiffs’ witnesses, and as the defendant had not plaintiffs, and that the validity thereof might be thought proper to proceed with the cross-examination, established by decree ; or that in case he should refuse, it must be assumed that they had spoken the truth. or by reason of the loss or destruction thereof be un. Following, therefore, the case of Ilampden v. Hampable to produce or deliver up the will, then that the den (which was exactly in point), he would make a plaintiffs might be declared be entitled to the pos- decree, declaring the plaintiffs entitled to possession of session of the farms, and that the defendant might the farms, and directing the defendant to convey them convey the same to them.
to the plaintiffs, and the defendant must pay the costs The plaintiffs' case was supported by the affidavit of of the suit. the person who wrote out and attested the will, of the Note.See further, as to the general right of the other attesting witness, and of a grandson of the heir to an issue, testator, to whom the will had been given by the
Stacey v. Spratley, 2 De G. & J. 94. testator for safe custody, and who swore that he had lent it to the defendant's wife, and upon asking for it back again, had been told by her that she had
Master of the Rolls. Masox v. BROADBENT. destroyed it. Other witnesses swore that the defen 17, 18 Nov. 1863. dant had admitted to them that he had had possession of the will, and had burnt or lost it.
Contributory Mortgage Power of Sale The defendant and his wife absolutely denied ever Arrears of Interest—Statute 3 & 4 Will. 4, haring received or seen the will, and insisted that c. 27, ss. 25, 42. Robert Williams had died intestate. Notice was given to cross-examine the plaintiffs’
The exercise of the power of sale in a contributory witnesses, but was abandoned, as the defendant stated, mortgage docs not raise such a relation of trustee and because of the expense it would involve.
cestui que trust between the mortgagee and the mort
gagor and contributories as to bring the case within Selwyn, Q.C., and Osborne Morgan, for the plaintiffs, the 25th section of the Statute 3 & 4 Will. 4, c. 27, to cited,
the exclusion of the 42nd section. Hampden v. Hampden, 3 Bro. P. Ca. 551 ; 8. C.
By an indenture, dated the 1st of June, 1848, James Bro. P. Ca. (Dublin ed.) 250.
Tomlinson, in consideration of a sum of 1,1501. advanced Woodroffe v. Wood, 1 Dick. 32;
to him by the parties thereto of the fourth part, conHayne v. Hayne, 1 Dick. 18;
veyed certain freehold estates to the defendant in fee, to show that where there was strong proof of the subject to a prior mortgage and to a proviso for redestruction or suppression of a will by the heir, he was
demption on payment to the parties thereto of the not entitled to an issue. They also referred to
fourth part of the principal sum of 1,1501. and interest. Boyse v. Rossborough, 3 De G. M. & G. 817;
The indenture contained the usual power of sale, and it 25 & 26 Vict. c. 42 (Rolt's Act).
was declared that out of the proceeds of the sale the Bristowe for the defendants.
defendant should pay off the prior mortgage, and after The heir at law is entitled as of course to have the payment thereof should pay to the parties of the fourth validity of a will, by which real estate is devised away part “the said sum of 1,1501. and all interest thereon from him, tried by an issue devisavit vel non,
from the date of the indenture at the rate of 51. per Man v. Ricketts, 7 Beav. 93, 101,
cent. per annum, and lastly should deliver the surplus
(if any) to James Tomlinson, his executors, adminisTHE MASTER OF THE ROLLs, without calling for a trators, or assigns, or as he or they should direct." reply, said that he fully concurred in the observations And it was thereby declared that all moneys which of the defendant's counsel as to the general right of the should come into the hands of the defendant, his heir at law to an issue ; but this right did not arise heirs, &c., by virtue of such indenture, from the sale where the heir had himself occasioned the necessity for of the premises, should be by him or them applied such a trial. Thus, if a will had been lost, the heir as follows (that is to say), first in the payment of cer. might put the alleged devise to the strictest proof of tain costs and expenses therein mentioned, and, in its contents before a jury; but if he had himself sup- the next place, in the payment of the prior mortgage pressed or destroyed the will, the caso assumed a debt, and the arrears of interest and all accruing Fery different aspect, and, the presumption being interest due thereon, and then in the payment to the against the person who was keeping back evidence, parties thereto of the fourth part, their executors and the right was gone by the heir's own act. The administrators, of the interest on the above-mentioned only remaining question was, whether the evidence sum of 1,1501. ; and that the surplus (if any) should
he accumulated towards rayment of the principal sums trust attached to the proceeds for payment of “all intended to be thereby secured.
the interest from the date of the deed.” They admitted James Tomlinson died insolvent, and the equity of that, notwithstanding an express contract to pay inre lemption of the mortgaged premises became vested terest, the statute applied as against the land ; but, in the plaintiff's, under a trust deed for the benefit of the interest remaining due, the right still subsisted his creditors.
as against the money produced by the sale of the land, The defendant, in November, 1862, sold the mort- and was not destroyed by the 34th section of the Act. gaged premises under the power of sale, and after paying off the incumbrances which had priority to the
THE MASTER OF THE Rolls said, that it was settled mortgage debt of 1,1501., he claimed to retain the that unless a trust was created for the payment of whole of the surplus in payment of the principal sum
interest, the right thereto was barred after six years by of 1,1501. and fourteen years' arrears of interest.
Statute 3 & 4 Will. 4, c. 27, s. 42. He was of opinion The bill was filed to obtain a declaration that the that in this case there was no trust. The fact that the defendant was only entitled to receive the principal mortgagee was trustee for several persons did not affect sum and six years' interest.
the question. To bring the case within the exception
of the 25th section of the statute, the trust must have Selvyn, Q.C., and Horsey, for the plaintiffs.
been created by the mortgagor. In the present case, There was no relation of trustee and cestui que trust unlike the cases of Lewis v. Duncombe (loc. cit.), and retween mortgagor and mortgagee : it was true that Cox v. Dolman (loc. cit.), there was no trust term the mortgagee, whether there were a declaration as to or other trust estate created for the purpose of paying the application of the surplus proceeds of the sale, for the interest. It would be monstrous and anoniathe benefit of the mortgagor, or not, was so far a lous to hold that, the day before the sale, the trustce that he could pay the surplus proceeds into plaintiff's could have redeemed on payment of the Court under the Trustee Relief Act, 1847 ; but such a principal and six years' interest, but that the day after declaration did not constitute an express trust within the sale, fourteen years' interest could be retained the Statute 3 & 4 Will. 4, c. 27, s. 25. Nor did the against them. The case came within the principle of fact that the defendant was a trustee for the persons Hunter v. Nockolds (loc. cit.), as laid down by Lord who had advanced the money make any difference Cottenham; but the point was worth raising, and he for it was not a conveyance upon trust for the pay. should give no costs. ment of interest, so as to come within the principle of such cases as,
Master of the Rolls. / Re THE GREAT SHIP Cox v. Dolman, 2 De G. M. & G. 592 ;
21 Nov. 1863.
COMPANY (Limited). Lewis v. Duncombe, 29 Beav. 175. It was clear that if the sale had not taken place, only Winding Up—Injunction to restrain Creditor six years' arrears of interest could have been retained.
-25 & 26 Vict. c. 89, ss. 85, 201. Were fourteen years' arrears to be allowed, merely because the land was represented by money-money
After the presentation of a winding-up petition, under which in equity would be treated as land ?
the Companies Act, 1862, the Court will restrain Again, the plaintiff's were not the mortgagor him creditors from proceeding, whenever the winding-up self, but his assigns, who before the sale could have proceedings appear to be bonâ fide. redeemed the land on payment of the principal and This was the hearing of a petition for the winding up six years' interest.
of the Great Ship Company (Limited) under the ComThey also referred to
panies Act, 1862 (25 & 26 Vict. c. 89). Hunter v. Nockolds, 1 M. & G. 640 ;
On the 29th of September, 1863, before the preDu Vigier v. Lee, 2 Hare, 326 ;
sentation of the winding-up petition, the furniture of Sinclair v. Jackson, 17 Beav. 405.
the Great Eastern, then lying at Liverpool, was seized Cole, Q.C., and ryden, for the defendant.
by the sheriff's officer under a writ of execution, issued The estate was actually sold before the bill was filed. upon a judgment recovered by one Parry against the The desendant had received the proceeds, and applied company (see ante, p. 79). them. Under the Statute 3 & 4 Will. 4, c, 42, s. 3,
The winding-up petition having been presented on twenty years' interest might be recovered in an action
or about the 6th of October, the petitioners (Messrs. on a covenant, and, the land having been sold, the rule Glyn & Co.), on the 9th of October, obtained, ex parte, which applied to a redemption suit was here inappli
an injunction, restraining Parry from taking any cable. The section of the statute relied on for the further proceedings to realise his judgment. plaintiffs only applied when the subject-matter of the
A motion by Parry to dissolve the injunction now suit was land. Lewis v. Duncombe (loc. cit.) was a
came on to be heard with the petition. parallel case to the present, except that there the
Selwyn, Q.C., and Swanston, for the petitioners. trust was in the ordinary form ; in the present case there was a power of salc, on the exercise of which a Pooks, for the company.
Baggallay, Q.C., and Andrew Thomson, for Parry,
Kindersley, V.-C., almitted that the petitioners had made out a case for a winding-up order; but contended that the ex parte
FOXWELL v. WEBSTER.
Lord Chancellor. injunction had been improperly granted, and, therefore,
19, 20, 24 Nov. 1863. Parry ought to be placed in the same position as if he had been allowed to realise his judgment. A winding-up Consolidation of Suits-Plaintiff's right to sepaorder operated as an injunction (sections 87 and 202); rate, full, and immediate Answers. but between the presentation of the petition and the
Numerous suits having been instituted against difmaking of the order the Court had only (sections 85 and 201) a discretionary power of restraining proceed. ferent defendants for the infringement of the same ings; i. l., a power to be exercised only under special patent, the defendants, before any of them had ancircumstances, which did not exist in this case.
swered, moved to stay proceedings in all the suits but was admitted that the petition had been presented by a friendly creditor merely to prevent Parry from realis
Held, by the VICE-CHANCELLOR, that the Court could
not interfere with the plaintif's right to have a separale ing his judgment.
answer from each defendant. THE MASTER OF THE ROLLS (without calling upon Held, also, that in a patent case a defendant would the petitioner) said, that he must continue the injunc. not be excused from answering fully, and at once, on the tion. There might be peculiarities in particular judg- ground that the validity of the patent would require to ments to induce the Court to allow one judgment be established by an issue. creditor to enforce his judgment at the same time that This was the hearing of four motions, having for it restrained another; but he did not know of any thing their common object the consolidation of numerous special about Mr. Parry's judgment. In his opinion the suits instituted against different defendants for alleged object of the Legislature in these provisions as to re- infringements of Judkins' Sewing Machine patent. straining proceedings against the company, was to This patent, which was dated the 16th of October, secure an equal division among the creditors whenever 1852, was purchased by the plaintiff on the 18th of the Court saw that the company was hopelessly insol- May, 1859. An association, called “The Makers', vent. If the petition was presented by a friendly Dealers’, and Users' of Sewing Machines Central Assocreditor merely to defeat a judgment-creditor who had ciation,” (of which some, but not all of the defendants obtained execution, and the Court saw that it would be were members), had been formed for the purpose withdrawn as soon as the judgment-creditor had been of resisting the rights claimed by the plaintiff got rid of, that was no case for interference ; but it under this patent. In 1860, the plaintiff brought would be different if the petition made out a proper an action for infringement of the patent against one case for a winding-up order and was bona fide pro- Thomas, but was nonsuited. On the 10th of March, ceeded with. The Legislature to attain this object had 1862, the plaintiff filed in the Patent Office a dismnade two distinct regulations ; 1st, that a winding-up claimer and memorandum of alteration in his patent. order was to operate as an injunction ; and, 2nd, that, In a second action, on the 6th of February, 1863, before the winding-up order, the Court was to have juris- against Thomas, the jury were discharged with. diction to grant an injunction to keep things as they out returning a verdict; but, in a third action, on were. If, in any case, His Honour had reason to the 16th of June, 1863, a verdict was entered for suspect that the proceedings for obtaining a winding the plaintiff by consent, a compromise having been up order were collusive, and not intended to be pro- arranged on the terms that Thomas should pay ceeded with, he should refuse to interfere ; but where 4,2501. to the plaintiff, and should receive from him a a creditor came to ask permission to realise his free licence to use the patent. In September, 1863, judgment, not alleging that he had been delayed the plaintiff filed 134 bills, each against a single deby any fraudulent or improper proceedings on the fendant. Each bill stated that the defendant thereto part of the company, but merely with the object had manufactured, used, or sold, Judkins' Sewing of obtaining priority over the other creditors, was Machines, in infringement of the plaintiff's patent, of opinion that he ought to be restrained, and that and had colluded with other persons for such a purthe funds ought to be distributed rateably among pose ; and prayed for an injunction, and for an account all the creditors. No special case had been made of profits ; and that the defendant might be ordered to on the present occasion, and he should, therefore, pay 51. as liquidated damages for each case of infringerefuse the motion to dissolve the injunction, but ment of the patent, or damages to be assessed by the without costs. The usual winding-up order would Court ; that all machines infringing the patent might be made upon the petition.
be delivered up to be broken ; and that the plaintiff might be at liberty to inspect all machines in the defendant's possession. The facts stated in all the several bills, and the interrogatories on them, were in effect the same. Some of the defendants had joined in filing an affidavit; but none of them had yet Ewelme Hospital v. Andover, 1 Vern. 265 ; put in answers. Four notices of motion had been Lord Tenham v. Herbert, 2 Atk. 483 ; served on the plaintiff, on behalf respectively of nine- How v. Tenants of Bromsgrove, 1 Vern. 22 ; teen, seven, eleven, and forty of the defendants. The Filewood v. Palmer, Moscley, 169 ; first stated, that this Court would be moved, that the York, Mayor of, v. Pilkington, 1 Atk. 282; plaintiff might proceed in such one only of the suits as Taylor v. Salmon, 4 My. & Cr. 134; he should select for that purpose till such suit should JVallworth v. Holt, 4 My. & Cr. 619; have been determined, or until the validity of the It had been usually at the instance of the plainpatent therein should have been finally decided, or tiff that the consolidation had been ordered ; but the until the Court should otherwise order; and that the same relief would be granted to defendants. In a caso proceedings in the other suits might be in the mean before Wood, V.-C., it was not denied that the tenants time stayed, or the time for answering and producing of a manor had, on a proper occasion, a right to file a documents therein enlarged, the several defendants bill of peace against the lord, to restrain him from thereby undertaking to be bound and to abide by the commencing actions of ejectment against them severesult of the said suit so to be selected, so far as the rally, validity of the patent was concerned, in like manner Earl of Sefton and Others v. Marquis of Salisbury, as if the same result had been arrived at in the said
7 W. R. 272. several suits, or that such other order might be made At Law separate actions instituted against several as should be just for the purpose of deciding the vali- defendants who had a common defence, would be dity of the patent, so as to bind the defendants in ordered to be consolidated, the several suits by means of one proceeding only. Chitty's Archbold's Practice, c. viii. p. 1347, The other three notices were substantially identical
11th ed. with this; but in the second no enlargement of time 3rd. If the suits were consolidated, and an issue for answering and producing documents was asked ; directed, the Court ought, as a consequence, to stay and in the fourth, the defendants themselves specified meantime all further proceedings in the separate the suit in which the plaintiff was to proceed.
suits. It would be a gross oppression on the defend
ants, and, indeed, on the public, if many separate Rólt, Q.C., E. E. Kay, and Bagshawe, for the first suits were to be pressed on, pending proceedings which motion ; Osborne, Q.C., and C. M. Roupell, for the might perhaps establish that the plaintiff had no title second ; Preeling, for the third ; and Osborne, Q.C., to sue in any one. Direct precedents could not be and F. Waller, for the fourth :
cited in favour of enlarging the time for answering 1st. The verdict obtained in June, being by consent, till the issue had been tried; for applications for time did not estop the defendants from disputing the validity being heard formerly by a Master, and now by the of the patent itself, and they did now dispute it. Chief Clerk, were not likely to be reported. But But if a plaintiff's title was doubtful, this Court, even there were decisions showing that the Court would, on where a single suit, and, a fortiori, where many simul a proper occasion, stay further proceedings, and taneous suits, for infringement of his rights had been that, where a partial answer had been put in instituted by him, was in the habit of directing, on an (and the principle was the same when the defendant interlocutory application, an issue to determine the had not answered at all), it would not compel a preliminary question as to his title, retaining the bill defendant to answer fully pending the trial of the in the meantime,
issue, Goulden v. Lydiat, 4 Y. & C. Ex. 374 (note);
De la Rue v. Dickinson, 3 K. & J. 388; Kent v. Burgess, 11 Sim. 377;
Clegg v. Edmundson, 3 K. & J. 389 ; Fullagar v. Clarke, 18 Ves. 181;
Greaves v. Neilson, 3 K. & J. 389; Bacon v. Jones, 4 My. & Cr. 433 ;
Swinburne v. Nelson, 3 K. & J. 390 ; Lewis v. Thomas, 3 Hare, 29;
Peacock v. Peacock, 16 Ves. 49; Townley v. Deare, 3 Beav. 212;
Damer v. Earl of Portarlington, 2 Phil. 30. Lancashire v. Lancashire, 9 Beav. 259 ;
4th. At the present stage of the suit, the plaintiff Meyer v. Spence, 1 J. & H. 87.
was entitled to a discovery from the defendants only 2nd. With a view to prevent multiplicity of suits, the on matters affecting his case for the validity of the Court ought to take steps to have these separate suits patent. But all such information could be furnished consolidated. The present case contained the same by the defendants on affidavit as completely and more incidents on which the Court founded its practice in cheaply than by answer. They were willing to be put the case of bills of peace, and suits maintained by some on terms to state what machines they had in their members of a company on behalf of themselves and the possession, to let the plaintiff inspect them, and to rest; viz., a claim on the part of the plaintiff of a keep an account of profits. general exclusive right, a general denial of it by many separate defendants, and an allegation against them by Glasse, Q.C., C. Locock Webb, and Thcodore Aston (of the plaintiff of a common infringement,
the Common Law Bar), for the plaintiff, in answer to