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FOXWELL V. BRADBURY.
FOXWELL v. WEBSTER.

And other Suits.

Storre v. Benbow, 1 W. R. 115 ;

C. M. Roupell, F. Waller, and Bagshawe, in support Cookson v. Lee, 1 W. R. 509 ;

of the motions. Brandon v. Brandon, 7 De G. M. & G. 865; 2 Jur. (N. s.) 981;

Glasse, Q.C., Locock Webb, and Thcodore Aston (of Horne v. Barton, 26 L. J. Ch. 225;

the Common Law Bar), for the plaintiffs. Seton on Decrees, 39 (1st ed.).

THE LORD CHANCELLOR said, that he intended first Glasse, Q.C., and Hansard, for the plaintiffs. to direct a trial as to the validity of the plaintiff's Cracknall, for other parties.

patent; and that trial would take place before him

self, and without a jury. He would now make an order THE LORD CHANCELLOR said that the circumstances that the defendants Bradbury and Jones, and one of this case were unprecedented. There had been a' other also to be selected by the defendants from among mistake in the frame of the interlocutory decree, in the themselves, should, as representatives, and on behalf absence of which the defendant might possibly have of all the other defendants, conduct the trial ; that obtained a final decree in his favour. His Lordship was they should, in such capacity, deliver to the solicitor of opinion that a case of that nature was within the of the plaintiff, on or before the 21st day of the preindulgence of the Order (loc. cit.), as the circumstances sent month, their objections to the validity of the were “peculiar” within the meaning of the words patent ; and that the trial should take place on such there used. There must, therefore, be a rehearing, day in Hilary Term next as might be fixed

further notwithstanding the lapse of the five years. But if application to be made for that purpose. His Lordit should afterwards appear that the defendant was ship expressed his intention to avail himself of the abusing the indulgence of the Court, the Court would assistance of an expert to be present in Court during find a way of fixing him with the costs of the pro- the trial; but, as the parties declined his offer to allow ceedings. The costs, from May, 1861, up to and in- them to join in recommending some person for that cluding the present application, would be dealt with post, there would be no mention of the matter in the by the Vice-Chancellor.

All questions as to the costs of the proceedings, Lord Chancellor.

as well before the Vice-Chancellor as before his Lord3, 7 Dec. 1863.

ship, must be reserved. The defendants in any other

suits, instituted by the plaintiff in respect of the same Consolidation of Suits-Patent-Validity Dis matter

, would have liberty to apply to come in under puted— Several Classes of Infringement — account of tho form of the order, the solicitors might

the present order.

If any difficulty should arise on Mode of Procedure.

communicate with the Registrar, who would submit Numerous suits had been instituted for the infringe. the point to his Lordship. ment, by different defendants, of the same patent. The defendants moved to stay proceedings in the several suits,

Lord Chancellor. on the ground that the plaintiff ought first to establish

} SIDNEY v. WILMER.

5, 7, 8 Dec. 1863. the validity of his patent, which they denied :

Held that, under the circumstances, the Court would Reversal of the Decision Reported in take measures to have the question of validity tried

25 Beav. 260. first, and would allow all the defendants to be represented at the trial, by three selected by the rest.

As this case depended on the special terms of an This was an adjourned motion by way of appeal from but merely to record the reversal of the decision of

ill-drawn will, it is not proposed to report it in extenso, a decision of Vice-Chancellor Kindersley, reported, the Master of the Rolls reported in 25 Beav. 260. suprà, p. 103.

It was admitted that no child had been born of the On the 3rd of December, the appeal motions, which testator's sister Eliza (see the report in Beavan), and had been made before the Lord Chancellor on the 24th by reason of the expiration, on the 4th of July, 186 of November last (suprà, p. 105), were, in accordance of the period of eighteen years from the date of the with his Lordship's direction, mentioned again. In the testator's will, the plaintiff's estato had thus become meantime, sixty-eight affidavits had been filed by the defendants, for the purpose of giving the information required by his Lordship. The Lord Chancellor The Attorney-General, Sir Hugh Cairns, Q.C., and therefore, on the plaintiff's application, on the 3rd of Hemming, for the plaintiff, the appellant. December, ordered the motions to stand over to the 7th of December, to give the plaintiff time to consider

Rolt, Q.C., and F. Riddell, for the testator's heirthese affidavits ; and the motions were accordingly now

J. Hinde Palmer, Q.C., and Knox Wigram, fur Rolt, Q.C., Osborne, Q.C., Freeling, E. E. Kay, remaindermen.

1

indefeasible.

at-law.

renewed.

Everitt for the trustees of plaintiff's marriage settle injunction under section 201 (25 & 26 Vict. c. 89) of ment.

the Companies' Act, 1862.

On the 21st of November, 1863, the Master of the Giffard, Q.C., and Rasch, for the trustees of the term of 500 years, in support of the Master of the Rolls made an order for the winding-up of the com

pany, and at the same time refused the motion to Rolls' decree.

dissolve the injunction. The Lord CHANCELLOR held that there was no

Baggallay, Q.C., and A. Thomson, for the appellant, intestacy, nor was any part of the rents undisposed of ;

Parry. that the plaintiff, having the first estate of freehold

The distinction between the 85th and 201st sections, (vested at the death of the testator, but down to the which give the Court a discretionary power to restrain 4th of July, 1863, liable to be devested in an event which had not occurred) was entitled, as from the death proceedings before the winding-up order, and the 87th of the testator, to the surplus rents and profits which and 202nd sections, which peremptorily stay proceedwere not required for the purposes of the term of 500 ings after the order, shows that in the former case the years ; and that the plaintiff was entitled also to the power ought not to be exercised, unless under special possession of the mansion and park, subject, however, circumstances

, which are not alleged to exist in the

present case. to the condition of assuming the testator's name and

The omission to re-enact section 80 of the 19 & 20 arts, and subject to the obligation of performing Vict. c. 47, which made void executions issued within the directions and requisitions of the trustees of the three months before the presentation of a petition for term under and in exercise of the powers of manage- winding up, shows that under the Act of 1862 execument conferred upon them.

tions issued before the petition ought not to be interfered with.

The sale of the goods by the sheriff is not a proceed

ing against the company within the meaning of the Lords Justices. Re THE GREAT SHIP Co. }

201st section. 3 Dec. 1863. PANY (Limited)

Selwyn, Q.C., and Swanston, for Glyn & Co. Companies' Act, 1862, s. 201-Winding-up The object of winding up is to secure the assets of Injunction to restrain Creditor. the company for the benefit of all persons interested,

and to prevent individual creditors from wasting the After the presentation of a petition for the winding- assets by independent proceedings. The appellant Up of a company, but before the order for the winding was not really injured by the injunction, because the Up, the Court will not, except under special circum- benefit of his judgment, if rightfully acquired, would stances, restrain a creditor from realising a judgment be preserved in the winding-up, or he might get the obtained by him against the company, upon which leave of the Court to proceed. execution has issued, and the sheriff has taken possession

The 201st section was made permissive in order to before the presentation of the petition.

meet the case of a petition to wind up being presented Quære, per KNIGHT BRUCE, L.J.

for the mere purpose of getting rid of a troublesome 1st. Whether, after the sheriff has taken possession,

creditor. the Court can interfere under sectim 201 of the Com

The 163rd section makes void executions put in force panies' Ad, 1862.

after the presentation of the petition. 2nd. Whether an injunction will be granted ex parte under that section.

Preeman, for the sheriff, who was served with notice

of the motion in the Court below, but not of the appeal This was a motion, by way of appeal, to discharge motion, asked for his costs. all order of the Master of the Rolls (see ante,

Baggallay, Q.C., in reply. p. 102), refusing a motion to dissolve an injunction

The power given to the Court by sections 87 and 202 obtained ex parte by Messrs. Clyn & Co. restraining of giving the creditor leave to proceed, would have Robert Sorton Parry, a judgm“nt-creditor of the Great been sufficient to meet the case of mala fides in the Ship Company (Limited), an unregistered company, presentation of petitions. from taking further proceedings to realise his judg.

KNIGHT BRUCE, L.J., said, that two doubts occurred Parry obtained his judgment on the 28th of Sep. to him upon the 201st section ; viz., 1st, whether, as tember, 1863, and on the 2. 't I te sheriff took posses- nothing remained to be done but for the sheriff to sell sign of certain stores and furniture belonging to the the goods in his possession, the case came within the company under a fi. fa, issued thereupon.

terms of the 201st section, and, 2nd, whether an On the 6th of October, 1863, Glyn & Co., creditors injunction ought to be granted ex parte under that of the company, presented a setition for the winding- section ; but, assuming both these doubts to be resolved ap of the company, and on the 9th they obtained the in favour of the respondents, he did not think that

ment

no

there was sufficient ground for the exercise of the dis- and the question turned upon an indenture of settlecretionary power given to the Court by the Act, ment executed by Bradley after the death of his wife special circumstances having been proved to exist Susannah (formerly Susannah Guthrie), and, in contem. which should induce the Court to act against a person plation of a marriage with her niece, Elizabeth Jones. who had been lawfully and justly possessed of a judg By this settlement, Bradley, “in consideration of ment against the company, and no application having the then intended marriage, and in consideration of been made to wind up the company until some days the natural love and affection which he bore for his after execution had issued on the judgment.

children by his then late wife, and for divers other

good causes and considerations," assigned certain TURNER, L.J., said, that the question turned en

funds to trustees in trust for himself, his executors, tirely upon the 201st section of the Companies' Act, administrators, and assigns, " until the said intended 1862. That section clearly left it to the discretion of marriage should be solemnised, and from and after the the Court, whether or not to exercise the power thereby solemnisation thereof” upon trust, for himself and conferred, and the question was, under what circum- Elizabeth Jones, for their lives, and for the survivor stances ought the Court to exercise that discretionary for his or her life, and after the death of the survivor power; he thought that the Court was bound to regard legal rights and the interests not of one class former marriage, or by his then intended marriage, as

upon trust, for such of his children, whether by his only, but of all classes of creditors. There was nothing being sons or a son should attain twenty-one, or being in the Act which gave to the general body of creditors daughters or a daughter should attain twenty-one, or a right to have their interests consulted without reference to the rights of individual creditors; the Court marry, and if more than one in equal shares.

Shortly after the execution of the deed, Bradley and should, therefore, hold an even hand between them. The section was intended to meet the case of unfair in Switzerland, according to the law of Switzerland,

Elizabeth Jones went through the ceremony of marriage, attempts to get possession of the assets of a company and then returned to England. in extremis, but here a judgment had been obtained bona fide, and, after long opposition ; execution had

Bradley died in 1860, leaving Elizabeth Jones, ani issued, and there was nothing to restrain it except marriage, all infants, him surviving.

two children by her, and six children of the former the power given to the Court by the Act. It was a case in which the Court could scarcely have refused estate, and for a declaration that the pretended marriage

The bill prayed for the administration of Bralley's the creditor leave to pursue his remedy, even after the between Bradley

and Elizabeth Jones was null and voil, winding-up order, and, therefore, he ought not to have and that the trusts by the settlement expressed to be been restrained before the order.

limited from and after the solemnisation of the then Minute.- Discharge the order of the Master of the intended marriage, had not arisen, and that neither Rolls, and dissolve the injunction. The costs of the Elizabeth Jones, nor her children, nor the children of appellant in both Courts, and of the sheriff in the Bradley by his marriage with Susannah Guthrie, were Court below, to be paid by the petitioners.

entitled to any interest under the settlement, but that

the funds therein comprised remained in trust for the Lords Justices.

executors or administrators of Bradley, and were dis} CHAPMAN v. BRADLEY. 5 DEC. 1863.

tributable as part of his personal estate.

The defendants to the suit were the personal Settlement Marriage with Deceased Wife's representative of Bradley, the surviving trustee of Niece—" Solemnised."

the settlement, Mary Elizabeth Bradley one of the B, by a dced executed in contemplation of a marriage Jones, and her two children by William Bradley.

children of William and Susannah Bradley, Elizabetá with J, his deceased wife's niece, settled property in trust for himself absolutely " until the intended mar

The Master of the Rolls having held that the settle

ment riage should be solemnised," and from and after the

vas wholly void on the grounds stated in the solemnisation thereof," upon trusts, for the benefit of

former report, the defendant, Mary Elizabeth Bradles, himself and J, and his children, whether by his former

now appealed. or by the then intended marriage. B went through the ceremony of marriage with J, and afterwards died:

Hobhouse, Q.C., and Haddan, for the respondents,

the plaintiffs. Held, that no marriage had been solemnised within the meaning of the deed, and that, consequently, B, at in which case the trust for the settlor until marriage

The settlement contemplated either a valid marriage, his death, was entitled to the property under the first had never been displaced, or an invalid marriage

, such trust.

as actually took place, in which case the consideration This was an appeal from the decision of the Master was bad, and the settlement failed, of the Rolls, reported, 2 N. R. 477.

Robinson v. Dickenson, 3 Russ. 399 ; The suit was instituted by creditors of William Coulson v. Allison, 2 Giff. 279 ; Bradley, deceased, for the administration of his estate, 2 De G, F. & J. 521 ;

and the children by the former marriage being within pointments had been held by their Lordships to be the consideration of the intended second marriage, void, so far as the plaintiff was concerned, as being a Newstead v. Searles, 3 Atk. 265,

fraud on the powers under which they were made. As Clayton v. Earl Winton, 3 Madd. 302 n,

far, therefore, as the suits related to the appointments the trusts in their favour also failed. The trust was for made by the defendant, the present Duke of Portland, a class consisting of the children of the former mar the plaintiff was clearly entitled to costs as against riage, and the children by Elizabeth Jones, the latter him, as well as against the defendants Lord Henry of whom could not take, and as the share of each Bentinck, and Lady Harriet Bentinck, since it appeared could not be ascertained, the whole must fail,

in the answer of Lord Henry that he had concurred Porter v. Fox, 6 Sim. 485;

in those appointments being made, and from the answer Webster v. Boddington, 26 Beav. 128.

of Lady Harriet that she had concurred in giving Baggallay, Q.C., and Bromehead, for the appellant. effect to them, and claimed under them in opposition Though the consideration of the second marriage

to the plaintiff. failed, the other considerations were sufficient to sup

With respect to the costs relating to the appointport the settlement in favour of the children by the ments made by the late Duke of Portland, his Lordship tirst inarriage,

was of opinion that they ought to be paid out of the IFhalley v. Whalley, 3 Mer. 436.

estate of the late duke; and as the defendant, the preThe solemnisation referred to by the settlement sent Duke of Portland, had undertaken to represent Taeant the performance of the ceremony, upon which; that estate in the present suit, there must be an order therefore, the trust for the settlor ceased, and the for the payment of that portion of the costs. Still, ulterior trusts came into effect. The trust for the having regard to the answers and cross-examinations children must be carried out as if there had been no

of the defendants, the present Duke of Portland and children by Elizabeth Jones.

Lord Henry Bentinck, he did not think that he could

throw that portion of the costs upon either of them KsIGHT Bruce, L.J., said, that the first question personally, nor upon Mr. Ellis, who had been a mere was, what was the true meaning of the word “solem agent of the late duke in those transactions. Dised” as used in this settlement ? and lie thought As respected the costs of the defendants, Mr. James that it there meant “validly and effectually solem- and Sir William Topham, his Lordship did not think that nised ”; but no marriage had been validly solemnised they could have costs as against the other defendants, between Bradley and Elizabeth Jones; the settled through the medium of the plaintiff. They had befund, therefore, remained under the first trust in the come necessary parties as defendants only, in consesettlement vested in Bradley at the time of his death, quence of the settlement made upon the plaintiff's and neither Elizabeth Jones nor her children, nor any marriage, and must therefore take their costs out of child of Bradley, took any interest therein. He desired the settlement funds. None of the other defendants to express no opinion upon the grounds upon which had, in his Lordship's opinion, any claim for costs as the Master of the Rolls had founded his decision. against their co-defendants.

There would be no costs of either of the appeals. Trener, L.J., agreed in thinking that the marriage contemplated by the settlement was a valid and

KNIGHT BRUCE, L.J., concurred. effectual marriage, both from the language of the instrument, and from the trust in favour of the children of that marriage, as the parties could not be supposed to have intended provisions for future illegitimate Master of the Rolls.

} Rossox v. Flight. issue. The trust for Bradley remained in force, and

3 DEC. 1863. the ulterior trusts did not arise.

Practice -- Exceptions to Answer - Discovery as

to Matters only material after Decree.
Lords Justices. LADY MARY TOPHAM v. DUKE
5 Dec. 1863.

}
OF PORTLAND.

The plaintiffs in a suit to set aside a lease were held

entitled to an answer as to the defendant's receipts from Costs.

the property, —notwithstanding that the defendant denied This case is reported 1 N. R. 496. Their Lordships the plaintiff's' title to any relief at all, and that the having reserved the question of costs, this day gave accounts sought were not material to the plaintiffs' case judgment.

at the hearing. TURNER, L. J., said, that he had again read through This was the hearing of exceptions to the defendant and considered the evidence and pleadings in the cause, Flight's answer. with a view to the question of costs. There were two The plaintiffs' case, as alleged in their bill, was as branches in the case, one relating to the appointments follows :made by the defendant, the present duke, the other to John Hall, being seised in fee of a messuage No. 45, the appointments made by the late duke. Those ap. Ludgate Hill, by his will, dated the 6th of October,

1818, devised this messuage to trustees, in trust to pay plaintiff's right to discovery only extended to what one moiety of the rent to his son John Ebdell Hall, was necessary to make out his case at the hearing, and after his death in trust as to the same moiety for Mansell v. Feeney, 2 J. & H. 320, 323. the children of his son as therein mentioned, and [The Master of the Rolls.- Does not Lord Eldon upon trust as to the other moiety for the separate use say that a plaintiff is entitled to an answer as to what of his daughter Eliza Hall, and after her decease in would be due to him if he obtained a decree, in order trust for her children as therein mentioned.

that may have the option of taking the defendant's The will empowered the trustees and the survivor of account as it stands, without any reference to the them, and the executors or administrators of such Master ? *] survivor, to lease at rack-rent during the minority or

The most convenient course would be to order the minorities of any person or persons for the time being exceptions to stand over till the hearing, as the Lords entitled under the will.

Justices had done in, The testator died on the 9th of May, 1826, and the Clegg v. Eilmonson, 3 Jur. (N. S.) 299, trustees disclaimed. John Ebdell Hall was the tes- Grieves v. Neilson (not reported on app.), tator's heir.

Swinborne v. Nelson (id.), By an indenture dated the 1st of January, 1848, which were cited and followed in John Ebdell Hall demised the messuage No. 45, Lud- De La Rue v. Dickenson, 3 K. & J. 388. gate Hill, to Thomas Russell, for twenty-one years from The Court has a discretionary power to do this, where Christmas, 1847, at a yearly rent of 1801. The defen- it sees that the discovery sought will be of no appredant Flight (as he admitted by his answer) purchased ciable importance before the hearing. Russell's interest under this lease in 1856, under a

THE MASTER OF THE Rolls held that the defencondition precluding him from requiring the lessor's title, and the lease was assigned to the defendant knowledge of the profits received by the defendant

dant must answer the interrogatories. Although the Cannon as a trustee for hin. Eliza Hall, afterwards Eliza Robson, died in 1840, aside the lease, it might nevertheless be very important

from the lease might not assist the plaintiffs in setting and John Ebdell Hall in 1857. One of the plaintiffs to them. For if the defendant admitted the receipt of was the only daughter of Eliza Robson, the other two large profits, the plaintiffs, if they succeeded at the were the two children of John Ebdell Hall. The plaintiffs charged by their bill that Flight had true, and take a decree for payment on that footing,

hearing, might accept the defendant's statement as under-let different parts of the property for rents instead of a reference to Chambers. On the] other amounting altogether to 4191. 28., besides which some

hand, a statement by the defendant that there were part of the premises was unoccupied and in Flight's

no profits might induce the plaintiffs to abandon the possession. The 9th interrogatory related to these charges, and with the plaintiffs' right to a full answer.

suit. He thought it would be dangerous to interfere also required the defendants to set forth the particulars of the rents and profits, and their respective receipts

Minute.—Exceptions allowed with costs. on account thereof.

Note.-See also, The 15th interrogatory required the defendants to Caton v. Lewis, 22 L. J. (N. s.) Ch. 945. set forth what estates or interests they respectively had or claimed in the messuage, and by what titles respectively, and whether they had in any way aliened,

Master of the Rolls.

} GRÜNING v. PRIOLEAU.

3 DEC. 1863. charged, mortgaged, or otherwise dealt with the said messuage or their respective interests therein, and in Practice Demurring Time alone-Defendant whose favour.

served out of the Jurisdiction. Flight, by his answer, denied any notice of John Hall's will, or of the plaintiffs' title, and claimed to

The time for demurring alone is fixed in all cases by be a purchaser for value without notice, and he sub- Consolidated Order XXXVIII. r. 3; and Consolidated mitted that under the circunstances he was not bound Order X., r. 7, as to serving defendants out of the to give any discovery or accounts as to the rents jurisdiction, only applies to pleading, answering, er received by him, or his dealings with the property. demurring, not demurring alone. He did not otherwise answer the parts of the 9th and This was a motion to take a demurrer, filed by two 15th interrogatories set out above.

of the defendants, off the file, on the ground that it Bagshawe, for the plaintiff, relied upon the rule had been filed too late. that a defendant answering was bound to answer fully,

On the 11th of September, 1863, the plaintiffs Swinborne v. Nelson, 16 Beav. 416;

obtained an order giving them leave to serve two Clegg v. Edmonson, 22 Beav. 125 ;

defendants in France with copies of the bill and interHowe y. M'Kernan, 30 Beav. 547.

rogatories. According to this order, the time allowed

G. W. Hemming, for Flight, contended that the

* Rowe v. Teed, 15 Ves. 372, 378?

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