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THE LORD CHANCELLOR said, that the meaning of arising in the particular suit, required a different the 110th section of the Bankruptcy Act was not to be course. For example, if a view of premises in Northummistaken. The bankrupt, if not otherwise released, berland, or of things there, not moveable without great must proceed to obtain his discharge in the ordinary difficulty, were required, or if many of the witnesses way. And in order to render this quite clear, the sec- were resident in that locality, such a state of things tion expressly made the giving a full discovery a condi- would render a trial in Northumberland the most contion precedent to the discharge. Such discovery, where venient : there was a deed of arrangement, might possibly be 25 & 26 Vict. c. 42. made under the deed; and if in the present case the

Sir F. Kelly, Q.C., and W. W. Mackeson, for the trustees had certified that this had been done, the

defendants, contended, bankrupts might have been entitled to be discharged. But as such was not the case, they should have pro- cluded themselves from objecting to the trial taking

1st. That the plaintiffs had by their conduct preceeded to make discovery, and get their release by a due course of proceeding in the bankruptcy, and the place in the Court of Common Pleas.

2nd. That the word "conveniently” in the before Commissioner should have ascertained whether the

mentioned Act was to be taken in the widest sense. accounts which they had filed were sufficient. His Lordship would therefore discharge the order of release,

No reply was called for. and direct the Commissioner to proceed with the

The LORD CHANCELLOR, after stating that the facts bankruptcy, till he was satisfied that the bankrupts did not warrant the conclusion that the plaintiffs had had made a full discovery of their estate.

surrendered their right to make the present motion,

said, that, in accordance with the statute, it was now Lord Chancellor.

the rule for the Court itself to hear every cause from } Young v. Ferrik 21 Dec. 1863.

beginning to end. The proviso in the Act of last

year allowed certain exceptions to the rule. But in Practice-Chancery Regulation Act, 1862–

order for the proviso to apply, the administration Patent.

of justice in the particular suit must be promoted by

an action at Law, or a trial in another Court. Since the passing of the Chancery Regulation Act, 1862, it has become the rule of the Court to try cll ques were sure to be largely intermixed, it was productive

In patent cases, where questions of law and fact tions of fact itself, and the rule will only be departed of great inconvenience to cut the matter in half, and from where the administration of justice in the particular to send one half to be tried before a jury at Law, suit renders a different course expedient.

and leave the other half to be dealt with here. It The rule applies with special force in patent cases.

was impossible by such a mode to arrive at a satisThis suit was instituted for the purpose of restraining factory conclusion, except after many proceedings and the defendants from infringing a patent alleged to be shiftings, and after much expense consequent upon the vested in the defendants, and for consequential relief. misapprehensions to which such shiftings gave

On the cause coming on to be heard before Vice-Chan- Not long ago a patent case, which had been several cellor Stuart, his Honour considered that the case was times sent backwards and forwards between the Courts a proper one to be tried before a jury. Both plaintiffs of Equity and the Courts of Law, was ultimately and defendants were then desirous that the trial should decided on a simple question of law arising on the take place before his Honour ; and it was argued that specifications. All these inconveniences might arise in under the Chancery Regulation Act, 1862 (25 & 26 the present instance from splitting the case in two, Vict. c. 42), this was the only course competent to the and there appeared to be no special circumstances to Court. The Vice-Chancellor, however, considered that justify such a course. The order of the Vice-Chancellor having regard to the number of causes set down, and would therefore be discharged. the general state of business in his Court, the case might more conveniently be tried elsewhere ; and accordingly, in virtue of the power reserved to the Lords Justices. Court by the second section of the Act, he directed 9, 18, 20 Nov., 17 Dec. 1863.

} JOHNSON t. WYATT. that the validity of the patent and the fact of infringement should be ascertained before a special jury Injunction Acquiescence-MistakeDamages in the Court of Common Pleas.

-Jurisdiction-21 & 22 Vict. c. 27–25 d:

26 Vict. c. 42. Sir Hugh Cairns, Q.C., E. K. Karslake, and Lawson, for the plaintiffs, moved, that the order of the Vice- A being about to crect a building near B's house, ixChancellor might be discharged, and the cause be tried formed B of his intention, and pointed out the proport in the Court of Chancery. They argued, that every site of the building ; B having misunderstood 4, and suit begun in the Court of Chancery was now to be mistaken the proposed site for another to vhich he back completed there, unless some peculiar circumstances, no objection, made no further inquiries, and took no

steps for nearly a month, by which lime A had almost Willcock, Q.C., and Higgins, for the appellants. finished the building; B then discovered his mistake, The delay of the plaintiffs, arising from mistake, if and shortly afterwards filed a bill against A for an in- not from misrepresentation, ought not to deprive them junction and damages, on the ground of obstruction to of their rights, light and air:

Isenberg v. The East India House Estate ComHeld (reversing the decision of Wood, V.-C.), that


M. R. 1863 (unreported) ; B's acquiescence was not sufficient to deprive himn of the Gerrard v. O'Reilly, 3 Dr. & W. 414. right to an injunction at the hearing of the cause; but The plaintiff, Johnson, was guilty of no laches, and, the bill was dismissed on the ground that B had if necessary, the other plaintiff ought to be treated as sustained no substantial injury.

a defendant, under section 49 of 15 & 16 Vict. c. 86, Per Turner, L.J.-If in a suit for an injunction Clements v. Bowes, 1 Drew. 684 ; and damages the injury to the plaintiff proves to be Pollock v. Lester, 11 Hare, 266. two trifling to sustain an injunction, the Court has The injury to the plaintiffs' house, was sufficient to jurisdiction to award damages under the Chancery sustain an injunction, Amendment Act, 1858 (21 & 22 Vict. c. 27); but

Wilson v. Townend, 1 Dr. & Sm. 324 ;
Semble, the Court is not bound by section 1 of the Attorney-General v. Nichol, 16 Ves. 338;
Chancery Regulation Act, 1862 (25 & 26 Vict. c. 42), Walter v. Selfe, 4 De G. & Sm. 315 ;
to entertain the question of damages.

Pollock v. Lester (loc. cit.).

The plaintiffs were entitled to an inquiry as to This was an appeal by the plaintiffs from a decision of damages, either with or without the injunction, Vice-Chancellor Wood, dismissing the bill with costs. Wedmore v. Mayor, dc., of Bristol, 1 N. R. 120, The plaintiff Johnson was the lessee, and the

187. plaintiff Burke was the under-lessee and occupier of the house No. 10, North Audley Street, and the defen

Danicl, Q.C., and Goldsmith, for the respondent. dant was the occupier of the next house.

1st. The injury, if any, is too trifling to sustain an On the 28th of March, 1863, the defendant called at injunction. the plaintiffs' house late in the evening, and saw the

2nd. The plaintiffs are bonnd by their laches, which son of the plaintiff Burke, whom he informed that he was not caused by misrepresentation. intended to build a photographic studio on a building

Willcock, Q.C., in reply, contended, that if the at the back of his house adjoining the plaintiffs' yard, plaintiffs had sustained any injury, however small, at the same time pointing out of the windows to the the Court having jurisdiction to inquire as to damages, building. There were, however, two buildings at the

was bound by the Chancery Regulation Act, 1862, to back of the defendants house, and Mr. Burke, sup- exercise its jurisdiction, and could not leave the prosing the lower building to be referred to instead of

parties to proceed at Law, the higher, to which the defendant in fact referred,

Baylis v. Watkins, 1 N. R. 115. expressed no objection, and made no further inquiries about the proposed building.

17 DEC. 1863. On the 8th of April the defendant began to prepare TURNER, L.J., said, that the delay and acquiescence the higher building for the reception of the studio, and of the plaintiffs, though sufficient to justify the Court on the 16th began to erect the studio.

in refusing an interlocutory injunction, was not suffiOn the 24th, the plaintiff Burke discovered that cient to deprive them of their right to an injunction the studio was being erected on the higher building, at the hearing, the dismissal of the bill on the ground and, after some remonstrances, the bill was filed on the of acquiescence amounting to a decision that a right 5th of May, for an injunction to restrain the defendant once possessed had been absolutely and for ever lost. from proceeding with, or keeping up, the studio, on Upon the question, whether the Court ought to the ground that it obstructed the access of light and interfere by injunction in cases where the damagesair to the windows of the plaintiff's house, and for recoverable at law would be trifling, he would say damages ; at the time of the filing of the bill the studio nothing, as there had not been unanimity in the was nearly finished.

opinions of the Court upon that point; but this, at The evidence as to the alleged diminution of light least, was clear, that a plaintiff seeking for an injuncand air, was conflicting.

tion against an obstruction of light and air must show It did not appear whether the plaintiff Johnson that his house had been rendered substantially less had any notice of the building of the studio before the comfortable for purposes of occupation, and this, in filing of the bill.

the present case, the plaintiffs had failed to establish. The cause having come on upon motion for decree, Their case, therefore, for an injunction had failed. the Vice-Chancellor held, that the plaintiffs' right to Then, as to damages, he was not satisfied that the an injunction was barred by delay and acquiescence, question of the plaintiffs' right to damages was “a quesand that, under these circumstances, the Court had no tion of law or fact, cognisable in a Court of Common jurisdiction to give damages.

Law, on the determination of which the plaintiffs' title

to relief in Equity depended,” within the meaning of appeared that Messrs. Coutts & Co., the bankers, had section 1 of the Chancery Regulation Act, 1862, so as been in the habit of managing the affairs of the alleged to make it absolutely binding on the Court to go into | lunatic, and had continued to make the usual pay. that part of the case ; but, as the Chancery Amend. ments during his illness, which payments included ment Act, 1858, had given the Court jurisdiction to an allowance to the petitioner, and which had been entertain the question, he thought that, having regard regularly paid. to the spirit of the subsequent Act, they ought, under Under these circumstances their Lordships had the circumstances, to exercise that jurisdiction. He had, directed the petition to stand over, on the undertherefore, looked into several cases at Law, and, upon taking of the brother of the alleged lunatic not to the authority of Back v. Stacey (2 Car. & P. 465); remove him out of the jurisdiction of the Court. Parker v. Smith (5 Car. & P. 438); Pringle v. Wernham Their Lordships also directed Messrs. Coutts & Co. to (7 Car. & P. 377); Wells v. Ody (7 Car. & P. 410), he continue the payments as hitherto. considered that, on this point also, the plaintiffs' case The matter was adjourned from time to time. failed.

16 DEC. 1863. The bill ought to remain dismissed, but without

Bedwell, on behalf of the alleged lunatic, now applied costs, and there should be no costs of the appeal.

for the dismissal of the petition ; the physicians apKNIGHT Bruce, L.J., said, that but for the Chan- pointed by the Court having certified that that gentlecery Regulation Act, 1862, he should have preferred to man had recovered, and was now of sane mind. His let the cause stand over, with liberty to the plaintiffs client was willing to pay the costs of all parties, with to sue the defendant at Law.

the exception of those incurred by the petitioner. He could not agree with the Vice-Chancellor that a

F. Waller, on behalf of the petitioner, asked for the case of laches or acquiescence had been established costs incurred by her in the matter. He referred the against the plaintiffs ; but he thought that the plain-Court to tiffs had failed to prove a case of nuisance either as to

The Lunacy Regulation Act, 1862 (25 & 26 Vict. light or air. He should have been disposed to allow

c. 86), sect. 11. the parties to examine or re-examine witnesses on that question ; but he agreed that, if the case was to rest

TURNER, LJ., said, that he thought costs should as it was, the bill must remain dismissed, and that be allowed to persons presenting petitions in lunaey, there should be no costs.

unless there were grave reasons for refusing them. It was very desirable that no one should be deterred by

the fear of having to pay costs from interfering in Lords Justices. , Re Anon, an Alleged behalf of persons unable to take care of themselves, and 12 JUNE, 16 DEC. 1863. /


no obstacles should be thrown in their way. He was Lunacy Regulation Act, 1862, Section 11

of opinion, therefore, that the costs of the petitioner

ought to be paid out of the estate of the alleged Petitioner's Costs.

lunatic. In an inquiry as to an alleged lunacy, the costs of the

Knight BRUCE, L.J., concurred. petitioner were ordered to be paid out of the estate of the alleged lunatic; notwithstanding that the alleged

As this was the first case that had arisen under lunatic had recovered and was certified to be of sound the Act of 1862 a discussion arose as to the form mind.

of the order. Ultimately the solicitor of the alleged

lunatic offered to give an undertaking that his client This was a petition for an inquiry in lunacy, pre- would pay the petitioner's costs. This undertaking sented by the wife of an alleged lunatic petitioning by

was accepted by the Court, and consequently no order her next friend. It appeared that the petitioner at

was made. the date of the petition was, and had been for some

Minute.-Costs of the petitioner to be paid by her time, separated from her husband.

In March last the alleged lunatic, when staying at husband. All proceedings under petition to be stayed an hotel in London, was seized with an attack of until further order. insanity. His brother was summoned, who removed him to a house in St. John's Wood. His brother and Lords Justices. Re Wood's LUNACT. their only sister took up their abode with him. He 4, 11, 18, Dec. 1863. BANNER v. ENGLAND. there remained under the care of the family physician,

Practice-Lunacy-Production of Papers. and was constantly attended by two keepers. It was shown that he had previously suffered from similar Any party to a suit relating to the estate of a lunatic attacks and had always recovered after a few months. is entitled to inspection and production, at the hearing His wife, on hearing of his attack, sent two physicians of the suit, of all documents relating to the lunacy is to visit him, but they were denied admittance. She the custody of the Master in Lunacy. then commenced proceedings in lunacy. It further

This was an application in lunacy, made by the


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plaintiffs in the suit of Banner v. England, for leave time that has elapsed since the death of the lunatic. to inspect, and for the production of certain documents They cited, in the custody of the Master in the Lunacy of Isaac Bolton v. Corporation of Liverpool, 1 M. & K. 88 ; Wood, deceased, under the following circumstances : Re Silcock's Lunacy, 1 N. R. 4;

In 1806, Isaac Wood was found a lunatic. He Re Sartoris' Lunacy, 1 N. R. 4. subsequently died possessed of considerable real and personal estate.

Greene, Q.C., in reply, cited, The Master in Lunacy, by a report dated the 12th

Re Fitzgerald, 2 Sch. & Lef. 432; of January, 1849, found that one Thomas Copeland

Re Clark, 2 Sch. & Lef. 594. was the sole next of kin of Isaac Wood at his death,

TURNER, L.J., said that the present application wa who accordingly obtained letters of administration to

a very important one as respected the rights of parties the estate and effects of Isaac Wood, and took posses- in a suit to the production of documents in the custody sion of his personal estate.

of the Master in Lunacy, and since it had been first Thomas Copeland died on the 12th of December, mentioned he had communicated with the Registrar in 1850, having appointed John England, one of the Lunacy; his Lordship found that down to 1825 no one defendants in the above suit, and Charles Bamford, had been debarred from inspecting the proceedings in since deceased, executors of his will, who duly Lunacy. That, in his opinion, concluded the quesproved it.

tion. The order for inspection and production would On the 19th of June, 1862, the suit of Banner v.

be made as prayed in the petition. Costs to be costs England was instituted by the plaintiffs, Edward in the cause. Banner, and Sarah his wife. They alleged that Thomas Copeland was not the next of kin, or one of

KNIGHT BRUCE, L.J., concurred. the next of kin of Isaac Wood, at the date of his decease, and prayed (inter alia) that it might be de

Lords Justices. clared “that the said Sarah Thompson, deceased, as

ADAMS v. SWORDER. one of the next of kin, according to the statutes of distribution, of Isaac Wood, the intestate, living at his Annulled Bankruptcy-Order obtained by Fraud decease, was entitled, and that the plaintiff Sarah

-Sale by AssigneesRight to Sue.
Caroline Banner, as the legal representative of the said
Sarah Thompson, deceased, is now entitled to a share

A, a bankrupt, by suppressing part of his estate, preof the whole of such personal estate of Isaac Wood, vailed upon his creditors to accept a composition, and the intestate."

obtained an order annulling his bankruptcy under Replication was filed on the 6th of August, 1863 ; section 230 of the Bankrupt Law Consolidation Act, but the time for closing evidence was extended by


Held (reversing the decision of the Court below), that The plaintiffs now petitioned their Lordships that so long as this order remained unimpeached it must they might be at liberty to inspect all the docu- be treated as valid, and that consequently, A was ments in the matter of Isaac Wood, a lunatic, and entitled to have a sale made during the bankruptcy in the custody of the Master, Registrar, and other by his assignees to their solicitor set aside. officers in Lunacy, and to take copies and extracts

This was an appeal from a decision of Stuart, V.-C. therefrom as they might be advised at their own ex

(reported 1 N. R. 546). pense, and that the proper officers might be directed to attend with such documents upon any examination 1856 ; in October, 1856, part of his estate, consisting

The plaintiff was adjudicated bankrupt in July, of witnesses at the hearing of the cause of Banner v.

of a life estate in freehold property, and a policy on England, as the petitioners might require.

his life, was put up for sale by auction by his assignees Greene, Q.C., and Bowring, in support of the and bought in, and, in the following December, the petition.

same property was again put up and sold, at a price

below the highest bidding at the former auction, to the Schomberg, Macnaghten, and Osborne Morgan, for defendant Ree, who was an auctioneer, and had been the several defendants, opposed the production of the occasionally employed by the assignees in sales of the documents.

plaintiff's estate ; the purchase was, in fact, made by 1st. By our answers we allege that we are nearer of Ree on the joint account of himself and the defendant kin to the deceased lunatic than the plaintiff, and we Sworder, who was a member of a firm of solicitors have administered as such nearest of kin. The Master employed by the assignees in their dealings with the in Lunacy, therefore, holds the documents in question plaintiff's estate, including the sale in question; this for us, and the plaintiffs are not entitled to be in a was known to the plaintiff shortly after the sale took better position than if the documents were in our own place. custody, and not that of the Court.

In March, 1860, the plaintiff made a composition 2nd. The Court will take into consideration the with his creditors under the 230th section of the Bank.

rupt Law Consolidation Act, 1849, and in May, 1860, of the assignees, and could not assist the defendants, an order of the Court of Bankrupty was made annulling who were not parties to it. the bankruptcy without prejudice to any sale made or

Bacon, Q.C., and Marten for the defendant Sworder, any act done by the assignees ; before the consent of the assignees was given to the annulling of the bank. and Hobhouse, Q.C., Waller, and Newbon for the

defendant Ree. ruptcy the plaintiff had by a deed, dated the 14th of March, 1860, and made tween him and the assignees,

The plaintiff's right to sue (if any) is derived from ratified and confirmed all sales made by the assignees.

the annulling order which was obtained by the plainIn July, 1861, the plaintiff instituted this suit, tiff's fraud ; but the Court will not assist a plaintiff in to set aside the sale of the life estate and policy, on the availing himself of an order so obtained, ground of the relation of the defendants as solicitor

Earl of Bandon v. Becher, 3 Cl. & F. 479 ; and auctioneer to the assignees, and on the ground of

Price v. Dewhurst, 8 Sim. 279. undervalue.

The annulling order, being the result of an arrange: Upon the hearing of the cause, the cross-examination ment, is equivalent to a deed re-assigning the bankof the plaintiff elicited the fact, that he hand in his last rupt’s property to him ; just as an order protecting a examination in the bankruptcy suppressed part of his wife's property under the Divorce Acts is an assignestate, and thereupon the Vice-Chancellor, without ment from the husband to the wife, entering into the merits of the case, dismissed the bill

Rudge v. Weeilon, 4 De G. & J. 216 ; without costs, on the ground that the annulling of the but the right to set aside this sale could not have been bankruptcy, which gave the plaintiff the right to sue, assigned by the assignees to the plaintiff, had been procured by fraud.

32 Hen. 8, c. 9; [It may be mentioned here, that shortly after the

Underwood v. Lord Courtown, 2 Sch. & Lef. 41; decision of the Vice-Chancellor the former assignees

Spragg v. Binkes, 5 Ves. 583; presented a petition in the Court of Bankruptcy, for

Prosser v. Edmonds, Y. & C. (Ex.) 451; an inquiry into the alleged suppression by the plain

Rolt v. Hopkinson, 3 De G. & J. 177. tiff, with a view of setting aside the annulling order, The order expressly protects sales made by the asand an order for such inquiry was made by the Com- signees, and it would not have been made without that missioner, but was discharged, on appeal, by the Lord saving clause, Chancellor, on the ground that the assignees and cre

Ex parte Smith, Buck. 262 n. ; ditors had notice at the time of one false statement

Twogood v. Hankey, Buck. 65. in the plaintiff's examination, and could not, there. The plaintiff is estopped by the deed of March, 1860

, fore, be taken to have relied on the truth of the which he executed with full knowledge of this sale, examination.]

and without which the assignees would not have con

sented to the annulling order; the defendants, though Malins, Q.C., and Herbert Smith for the plaintiff, not parties, could claim the benefit of the deed under in support of the appeal :

8 & 9 Vict. c. 106, s. 5. The order annulling the bankruptcy is valid

The plaintiff's right is barred by acquiescence. and subsisting, and the Court cannot take into con- Herbert Smith, in reply. sideration the grounds on which it was made ; more

The right to set aside a voidable sale is an over, the pleadings raise no objection to the plaintiff's interest, and may be assigned, right to sue, on the ground that the order was obtained

Wearing v. Ellis (loc. cit.); by fraud.

Stump v. Gaby (loc. cit.). The assignees during the bankruptcy had a right to The saving clause in the annulling order, and the sct aside the sale to their solicitor,

deed of March, 1860, only protected sales from being Gresley v. Mousley, 4 De G. & J. 78;

impeached on the ground of the bankruptcy having Stump v. Gaby, 2 De G. M. & G. 623 ;

been annulled. Ex parte James, 8 Ves. 337;

The plaintiff had not acquiesced; he could not haro Ex parte Reynolds, 5 Ves. 707 ;

sued before the bankruptcy was annulled. Ex parte Bage, 4 Madd. 459; Ex parte Bennett, 10 Ves. 381 ;

22 Dec. 1863. Ex parte Morgan, 12 Ves. 5;

Knight BRUCE, L.J., said, that it was clear that Bailey v. Watkins, 6 Bligh, 275 n. ;

the assignees, while the bankruptcy subsisted, could Pooley v. Quilter, 2 De G. & J. 327;

have set aside the sale made to their solicitor, whatand, by the order annulling the bankruptcy, this right ever price might have been given ; and he thought became vested in the plaintiff,

that, however censurable the plaintiff's conduct might Wearing v. Ellis, 6 De G. M. & G. 596 ; have been, a good title to sue was vested in him by Charnan v. Charman, 14 Ves. 580;

the annulling of his bankruptcy. Banks v. Scott, 5 Madd. 493. The deed of March, 1860, was only for the protection not yet been successfully impeached; hence, even

The annulling order was still subsisting, and had


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