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} LOCKETT v. Cany.
Mr. Fergusson also stated that he had never been THE MASTER OF THE Rolls said, that it was evi. called upon to give evidence on the question of dent that all the material facts were not before the domicil, although, as the testator's partner, he was Court on the previous occasion. That the greatest intimately acquainted with his plans and intentions ; difficulty with which the Court had to deal was to and he stated that the testator had purchased con- protect the interests of persons not before the Court, siderable real property in India, and had bought a where all the parties before the Court were interested in grave there in which he was afterwards buried.
bringing about the same result. He had quite under
stood, when the question of domicil was argued before Hobhouse, Q.C., and H. M. Jackson, in support of him, that the interest of the petitioner, Elizabeth Smith, the motion, referred, on the question of domicil, to
was opposed to that of the Crown ; it now appeared Lord v. Colvin, 4 Drew. 366 ;
that this was not the case : there was no defence to Forbes v. Forbes, Kay, 341 ;
the motion, except a mere technicality, and his Attorney-General v. Dunn, 6 M. & W. 511;
Honour would make an order in the terms of the Munroe v. Douglas, 5 Madd. 379 ;
motion, Mr. Fergusson undertaking to be bound by Cockrell v. Cockrell, 4 W. R. 730.
any order of the Court as to costs. As to the rehearing, they said that Mr. Fergusson had done everything necessary to show that he claimed to act
Master of the Rolls. as executor ; as soon as he had discovered that an order
23 JAN. 1864. had been made behind his back, and which put an end to the suit of Jopp v. Smith, to which he was a party, he had
Production of Documents—Solicitor's Lien. elected to make the present application, which was less A solicitor who is a defendant in a suit cannot refuse expensive than filing a bill. As he was not a party to the to produce documents belonging to his client on the suit of Jopp v. Wood, it was necessary to apply to the ground that he has a licn for costs, even when the Court for leave to present a petition of rehearing, plaintifs in the suit claim under his client. Berry v. The Attorney-General, 2 Mac. & G. 16;
This was the hearing, a ljourned from Chambers, of Gwynne v. Edwards, 9 Beav. 22;
a summons to consider the sufficiency of the affidavits Seton on Decrees, 1154 (3rd ed.).
of the defendant Cary, and of the defendants Messrs. The rehearing would not prevent the question being Cox & Lord. reheard by the Court of Appeal without special leave,
The plaintiffs were, under an indenture dated the Maybery v. Brooking, 7 De G. M. & G. 673.
3rd of May, 1863, the assignees of certain letters The funds in question were still in medio, as the patent, dated the 5th of June, 1849, preriously belong. plaintiff's solicitor held them on an undertaking to ing to Messrs. Swayne & Bovill. abide the result of the present motion.
By an indenture dated the 23rd of February, 1856, The order of the 5th of May, 1863, had been ob- Messrs. Swayne & Bovill had assigned these letters tained by a side-wind. The only opposition to it was patent, together with other property, to the defendby the Attorney-General for payment of legacy-duty, ants Cary, Greig, & Parry, upon trust, out of the and it was the real interest of the other parties to the proceeds, to pay a sum of 65001., and to procure cerpetition to pay the legacy-duty, and to have the domicil tain shares in the Namur and Liège Railway Company, of the infants declared to be Scotch.
and to indemnify Cary, Greig, & Parry, against certain Selwyn, Q.C., and B. L. Chaman, in opposition to liabilities, and subject thereto in trust for Messrs. the motion, said that no new facts had been adduced Swayne & Bovill. by Mr. Fergusson to affect the question of domicil,
By another indenture dated the 4th of October, except the purchase by the testator of land for a grave. 1856, Messrs. Swayne & Bovill had assigned these As to the rehearing, the suit of Jopp v. Wood was
letters patent, together with other property, to the dord, no funds remained in Court, and the undertaking defendants Cox & Lord, who hnd acted as their soliof the solicitor to keep the moneys in hand until the pre- citors
, to secure the moneys then due to them for costs sent application was decided, did not affect the question. or otherwise, amounting to upwards of 20001., and all The cases of
future money advances. Berry v. The Attorney-General (loc. cit.); and
The plaintiff's charged that the defendants, or some Guinne v. Eduards (loc. cit.),
of them, had been for some time in possession of the which had been cited in support of the motion, were
patent rights granted on the 5th of June, 1849, and alministration suits ; but Topp v. Wood was à suit had received various sums from licensees and inarising on the construction of a deed, and Mr. Fer- fringers, and sought to charge the defendants with grisson was endeavouring to get a locus standi in that wilsul default, as mortgagees in possession, in neglectsuit
, in order to repay himself money which he had ing to collect the royalties from the licensces and to advanced in the character of executor.
institute and prosecute proceedings against infringers.
The prayer of the bill was in substance one for the Hanson, for the Attorney-General, took no part in redemption of the letters patent.
The defendants Cox & Lord had acted as solicitors
of the defendant Cary, as well as solicitors of Messrs. were entitled to have the documents in question Swayne & Bovill.
produced. He should not, however, allow them to The defendants Messrs. Cox & Lord, by their affidavit take copies. There would be the usual order, giving as to documents filed on the 14th of December, 1863, the plaintiffs liberty to inspect the documents, at all objected to produce any of thes cheduled documents, reasonable times, at the defendants' office. The order on the grounds-1st, that certain of them were in would not extend to the documents held by the detheir hands as mortgagees; and 2nd, that the same fendants as mortgagees. documents, together with the other scheduled documents, were in their hands as solicitors for Messrs. Swayne & Bovill (who were not parties to the suit) and the defendant Cary, or some or one of them, and
} PRATT v. KEITH. that they had a lien thereon for costs due to them
19, 20 JAN. 1864. as solicitors from Messrs. Swayne & Bovill and from Practice—Demurrer for Want of Parties– Cary.
Demurrer Ore Tenus. By a subsequent affidavit they stated that the costs owing by Swayne & Bovill had been incurred several
A demurrer for want of parties must either name or else years since, and they specified such of the scheduled sufficiently describe the proper parties, for the purpose of documents as came into their possession as the soli- enabling the plaintiff to amend his bill by adding them. citors of Messrs. Swayne & Bovill.
A demurrer ore tenus for want of a particular party The plaintiffs claimed to have those documents pro- is good, notwithstanding that a demurrer generally for duced for their inspection, and this question was, want of parties has previously been overruled. amongst others, reserved by the Chief Clerk for the
Observations upon Pyle v. Price, 6 Ves. 779, and consideration of the Judge.
Attorney-General v. Corporation of Poole, 4 M. &. C.
Druce and F. Harrison, for the plaintiffs, offered if
This suit came on upon demurrer. necessary to procure the consent of Messrs. Swayne & Bovill.
Mrs. Mary Keith, who died in 1855, was entitled to
the beneficial interest in certain leasehold premises. Selwyn, Q.C., and E. P. Smith, for Messrs. Cox & But, in consequence of various dealings with the proLord, contended that they were not bound to produce perty, both during the life of Mrs. Keith and since her any documents in their possession as solicitors for death, it had become uncertain who was the legal Messrs. Swayne & Bovill.
This question, and others respecting the [The Master of the Rolls referred to
beneficial interest in the property, were the subject of Hope v. Liddell, 20 Beav. 438; 7 De G. M. & G.
a suit instituted in 1860 by Mr. and Mrs. Hairby ; and
the effect of his Honour's decree in November, 1860, where a solicitor was, under a subpena duces tecum, in that suit, was that Mr. Keith was ascertained to be compelled to produce a document upon which he had legal owner, and he, Mrs. Brooks, and Mrs. Hairby to a lien.]
be entitled beneficially to the property in equal thin In that case the solicitor was called as a witness on shares. The plaintiff Pratt had been sub-lesses of behalf of a third party. In the present case the soli- these premises since 1855, and had, up to the time of citors were required to give discovery as defendants, the suit in 1860, paid his rent without dispute to in a suit instituted by plaintiffs claiming under their Mrs. Brooks, as the executrix of Mrs. Keith. After debtor.
the decree in that suit, both Keith and Mrs. Brooks A solicitor's lien had always been viewed with great claimed the right to receive the plaintiff's rent; but favour by this Court :
the plaintiff, although he made various payments, to In Ex parte Shaw, Jac. 270,
the amount of 801., to Mrs. Brooks, refused to make Lord Eldon refused to interfere with the lien of a any payment to Keith ; consequently Keith distrained solicitor upon documents which his client was required for the arrears of rent since the decree, to the amount to produce, and made the client himself pay the costs of 2251., and proceedings were taken in replevin, and thus discharge the lien.
The present suit was instituted by the plaintiff for This was further illustrated by
the purpose of having the action at law stayed, and 20 Watson v. Lyon, 7 De G. M. & G. 288 ;
account taken, in which credit should be given to him Pelly v. Wathen, 1 De G. M. & G. 16.
for his payment (among other sums) of the 80L to
Mrs. Brooks, as one of the persons declared by his THE MASTER OF THE Rolls said that he had always Honour's decree to be beneficially entitled to the been anxious to preserve to solicitors the benefit of rents. The defendant Keith demurred to the bill, their lien, but there was a marked distinction between both for want of equity, and also because there were making the solicitor produce documents for the pur- not "proper parties to the said bill ;” but the deposes of justice, and taking them altogether out of his murrer did not name or describe the persons alleged to possession. He was of opinion that the plaintiffs be proper parties.
Toller, Q.C., and Mackeson, for the demurrer, con effect, that a demurrer for want of parties must either tended, in support of the demurrer for want of parties, name, or so point out the proper parties as to enable that Mrs. Brooks, and perhaps also Mrs. Hairby, were the plaintiff to amend his bill by adding them. Morenecessary parties to the bill, as it prayed an account of over, this rule had been always adopted in practice. the rents due from the plaintiff, in which rents they But the fact that the demurrer for want of proper were interested. It was not necessary, under the parties generally was overruled, did not prevent the present practice, in cases where the names of the defendant from demurring ore tenus, on the ground proper parties were upon the face of the bill, to name specifically that Mrs. Brooks had not been made a them in the demurrer. At all events, if the demurrer party. Such a demurrer ore tenus was not on the same for want of parties should be overruled on account of point as the original demurrer, and therefore the case this defect, the defendant might and would then of Bowman v. Lygon (loc. cit.) did not apply. demur ore tenus,
The question of costs was settled by arrangement Pyle v. Price, 6 Ves. 779 ;
between the parties. Attorncy-General v. Corporation of Poole, 4 M. &
} Blasson v. BLASSON.
21 Jan, 1864. Baily,' Q.C., and Fischer, in support of the bill, argued
Will—“ Born and living”- En ventre. 1st. That the demurrer ought so to have pointed out to the plaintiff the objection to his bill, as to have
The words “born and living" inclue children en enabled him to amend by adding the
proper parties. The fact of the uncertainty whether Mrs. Hairby, as
Sarah Blasson by her will gave stock to trustees upon well as Mrs. Brooks, was a necessary party, showed trust to accumulate the dividends thereof, and when the propriety of such a rule. In a plea of abatement, and so soon as the youngest of the children of her which was analogous to a demurrer for want of parties, within-named nephew and nieces who should be born and the party whose absence was complained of had to be living at the time of her decease should arrive at the sufficiently pointed out,
age of twenty-one years ; then to divide the said stock, Mitford, Pleadings in Chancery, 208 (5th ed.);
with its accumulations, among all such children of her 2 Van Heythuysen's Equity Draftsman, 81 said nephew and nieces as should be then living, share (2nd ed.);
and share alike. Cockburn v. Thompson, 16 Ves. 321.
Of the children of the said nephew and nieces some 2nd. It would be needless for the plaintiff to demur were born before the death of the testatrix, two were ore tenus, unless his demurrer for want of parties en ventre at that time, and some were begotten aftershould have been previously overruled. But in that
wards. case the demurrer ore tenus would be bad, being on One of the children en ventre at the death of the testhe same point-viz., the want of parties,
tatrix was still an infant. Bowman v. Lygon, 1 Anstruther 1.
The bill was filed by the trustees, to have the right Toller, Q.C., in reply.
of the cestuis-que-trust determined.
J. Hinde Palmer, Q.C., and Gill for the trustees. KINDERSLEY, V.-C., said, that he should allow the demurrer for want of equity ; leave, however, would
Glasse, Q.C., and Grenside, for the children born be given to the plaintiff to amend. But the demurrer before the death of the testatrix, contended that they før want of parties, which, at any rate, deviated from alone were entitled, and that the stock might now be the usual form, must be overruled. A dictum by distributed. Lord Cottenham, in Attorney-General v. Corporation of Poole (loc. cit.), had been cited in support of it.
Baily, Q.C., and Humphrey, for the children en But that dictum seemed to rest upon an expression of ventre at the death of the testatrix, contended that doubt by Lord Eldon, in Pyle v. Price (loc. cit.), they also were entitled, and that the stock ought to be whether it were always necessary to state the parties, distributed when all the children begotten before the Now, since the doubt, as reported, seemed to have death of the testatrix should have attained twenty-one. reference to the case of a demurrer ore tenus, in which
Toller, Q.C., and Herbert Smith, for the children it was impossible to avoid stating the parties, there must be some inaccuracy in the report of Lord Eldon's begotten after the death of the testatrix, contended
that all the children were entitled. opinion. It was strange that there was no direct authority on this point. But, certainly, such a The following cases were cited as to the effect of the dictum of Lord Cottenham's, considering the grounds wordsupon which it apparently rested, could not outweigh “living," the clear opinion expressed by Lord Redesdale, to the Bennett v. Honywood, 2 Amb. 708 ;
Doc v. Clark, 2 H. Bl. 399 ;
was to be paid out of the personal estate. On the de "born,"
cease of Thomas Jenkins, the stocks, funds, and securiTrover v. Butts, 1 Sim. & St. 181 ;
ties constituting the fund for its payment, were to go Scott v. Eorl of Scarborough, 1 Bea. 154; to the children of the annuitant. There was a residu“begotten and born,”
ary bequest in favour of the testator's wife and younger Whitelock v. Hleddon, 1 Bos. & Pull. 243.
The testator died in May, 1849, and his executors KINDERSLEY, V.-C., said that it was clear that the duly proved his will. Thomas Jenkins died in January, word “ such” was connected grammatically with the 1850, leaving two children, viz., the petitioner, Eran word “as,” and did not refer to the preceding sen. Jenkins, and Thomas Morgan Jenkins, who is still an tence; and therefore the expression “such children as infant. The trustees had, in September, 1850, inshould be then living,” included all the children vested 7001. out of the testator's effects in their hands, living at the period of distribution ; that is to say, at on real securities at 57. per cent. interest ; and from the time when all the children who should have been about February, 1852, they paid the annnity of 251., " born and living" at the time of the testatrix's death for the maintenance of the two children of Thomas, should have attained twenty-one. If the question out of the interest of this mortgage security, carrying were res integra, he should have no hesitation in de the surplus interest to the general trust account of the ciding that the word “born” did not include children testator's estate. But when, in April, 1862, the peen ventre, but Sir John Leach had decided forty years titioner, Evan Jenkins, came of age, a question arose, ago, in Trower v. Butts, that the word did include
as between him and the residuary legatees, whether such children. It was true that the case of Whitelock this investment of the 7001. had ever been definitely 6. Heddon, to which Sir John Leach referred in his appropriated for the satisfaction of the annuity of 251. judgment, as deciding that the words “ begotten and Evan Jenkins claimed, as one of the two children of born” inclu led children en ventre, did not in fact Thomas, a moiety, both of the principal sum of 700l., turn at all on the meaning of those words ; but, never- and of the surplus income from it; but the residuary theless, that judgment had not been disapproved of legatees contended that he was entitled only to a either by subsequent Judges or by text-books, and his moiety of so much of the principal sum as actually Honour conceived himself bound to follow it. The produced the amount of the annuity of 25). In conse
: period of distribution would therefore be when all the quence of this dispute, the two surviving trustees paid children begotten during the life of the testatrix should into the bank, on the 5th of June, 1863, 3681. 6s. 9d., have attained twenty-one.
which was the amount claimed by Evan Jenkins, to an Note.-See 2 Jarman on Wills, 171 (3rd ed.).
account entitled “In the matter of the trusts of Eran Jenkins' portion of a trust fund representing and cor
responding to the life annuity of Thomas Jenkins, Kindersley, V.-C.
} Rc JENKINS' TRTSTS. deceased, under the will of Morgan Jenkins, deceased." 22 Jax. 1864.
The present petition was presented by Eran Jenkins, Trustees—Trustee Relief Act, 10 & 11 Vict. have this sum paid out to him.
under the Trustee Relief Act (10 & 11 Vict. c. 96), to c. 96-Payment into Court without giving Notice of Adverse Claim.
Bevir, in support of the petition, cited,
Aspland v. Watte, 20 Beav. 474. When there are conflicting claims to a trust fund, and
Lewis Morris, for the residuary legatee, referred to the trustecs have paid it into Court to the account of one
Vickery v. Evans, ante, 236. of the claimants, without giving, at the same time, notice to the Court of the adverse claims, payment of the Jeremy, for the trustees. fund to the person in whose name it stands ordered by the Court, but without prejudice to any question as
KINDERSLEY, V.-C., said that no investment or apbetween the trustees and the adverse claimants.
propriation appeared to have been made by the trustees
to answer the annuity of 251. It was manifest that Morgan Jenkins, by his will dated the 9th of Sep- the investment of the 7001. on mortgage tember, 1843, gave to Thomas Windsor (since deceased), an appropriation ; for the income from it was 35., and Benjamin Evans, and John Parry, whom he appointed not 251. only. The trustees, however, had, under 3 executors, all his real and personal property on trust misapprehension, paid the moiety of that fund into for sale. The testator gave to his eldest son, Thomas Court, to the account of the petitioner's portion of the Jenkins, an annuity of 251. for life, and directed his trust fund, and had omitted, at the time, to give the executors to “invest or appropriate so much 31. per Court notice that the right of the petitioner to take the cent. Consolidated Annuities, or on real securities in whole of that moiety was disputed. Under these circo England or Wales
, as should be sufficient to yield the cumstances, the trustees must be deemed to have annual sumn of 251. as and for
a fund for the payment taken the responsibility on themselves of making out of the said annuity." In the meantime, the annuity the petitioner's right; and his Honour would there
was not such
Kindersley, V.-Con} Lowndes v. BETTLE. injuctions,
fore order the payment of this sum of 3681. 6s. Id. to Cases under the second head might also be divided him, but without prejudice to any question which into cases in which the defendant claimed no title, and might arise between the trustees and the residuary cases where the defendant did claim title. legatees. The trustees would have their costs of the First.-Where the plaintiff, being out of possession petition; the residuary legatees would have no costs. sought to restrain the defendant in possession, and
claimed privity of title. This was waste, and in such
cases the Courts never had any difficulty in granting 16 Nov. 1863, 23 Jan. 1864.
Secondly.--Where the plaintiff being out of possesInjunction-Trespass.
sion sought to restrain the defendant in possession, and
claimed adversely. The earliest case was Hamilton v. A person in possession of an estate may obtain an injunction to restrain a trespasser claiming title from 1786, in which an injunction was granted, but this case
Worsefield (10 Ves. 290, n.), before Lord Thurlow, in cutting trees and turf.
could not be relied on, as it was doubtful whether there A testator in 1768 devised his estate to his heir-at- was no collusion with the tenants, and therefore waste law, but if no heir-at-law could be found, he declared properly so called. In Pilsworth v. Hopton (6 Ves. that William Lowndes should be his heir. The tes. 51), in 1801, Lord Eldon refused an injunction, but in tator died in 1772 ; and in 1773 Williarn Lowndes Crockford v. Alexander (15 Ves. 138), in 1808, while filed a bill to have his right so ascertained. No heir- granting an injunction under the peculiar circumat-law could be found, and in 1783 a decree was made stances of the case, he drew a distinction between establishing the will, and declaring that the estate trespass and waste. In Jones v. Jones (3 mer. 161), was to be considered as belonging to William Lowndes, in 1817, Sir William Grant said, that he did not see and that he was to be put in possession. The estate any very good reason why the Court should not procontinued in his family ever since, and the plaintiff tect real estate pending a suit, but nevertheless refused was one of his descendants, and the present owner. an injunction partly on the ground of delay. In The defendant claimed to be heir-at-law of the testator, Haigh v. Jagger (2 Coll. C. C. 231), in 1845, Sir J. and in September, 1861, and since, had sent notices L. Knight Bruce said, that he was not convinced to the plaintiff threatening to come on the estate, and that the Court could not restrain the party in possesto cut trees and turf, in order, as he said, to keep up sion from stripping the estate of its timber, pulling his rights, and to bar the Statute of Limitations. down the mansion house, &c., for this Court did not
On a motion for an interim injunction the defendant treat questions of destructive damage to property then did not appear, and the injunction was granted; the exactly as it did forty or fifty years before. The incase now came on to have the injunction made per- junction, however, was refused partly on the ground of petual.
delay. In Davenport v. Davenport (7 Hare, 217), in
1849, Sir James Wigram allowed a demurrer, for want Glasse, Q.C., and Bristowe, for the plaintiff.
of equity to a bill praying an injunction, and stated, T. H. Terrell, for the defendant, contended that the that the cases in which the jurisdiction was exercised Court had no jurisdiction to grant injunctions in cases in restraining trespass were cases of peculiar descripof trespass.
tion, and that the Court was always trying to get out Glasse, Q.C., in reply.
of a technical rule. He, however, expressed his sur
prise that the law should be in that state. And KINDERSLEY, V.-C., said that from Lord Thurlow's finally, Sir W. P. Wood, in Neale v. Cripps (4 K. & J. time to the present a continual change had been | 472), in 1858, granted an injunction to restrain the taking place in the course of the Court with regard to defendants in possession from stripping an estate of injunctions to restrain spoliation. There had been timber, upon a motion by a plaintiff claiming under a formerly a wide distinction between waste, or spoliation, title at law. His Honour also referred to Earl of by one having privity of title, and trespass or spo- Fingal v. Blake (2 Moll. 50), and Lloyd v. Lord liation by one claiming adversely, or making no Trimleston (2 Moll. 81). claim whatever. This distinction had been much Thirdly.-- Where the plaintiff in possession sought to lessened, but still existed. There was also a dis- restrain the defendant out of possession, the defendant tinction as to whether the Court was supporting pos claiming no title. In Mogg v. Mogg (4 Dick. 670), in session or interfering with it. The cases might be 1789, and Mortimer v. Cottrell (2 Cox, 205), in 1789, conveniently arranged under two heads : namely, where an injunction was refused ; but in Mitchell v. Daws the plaintiff out of possession sought to restrain the (6 Ves. 147), in 1801, Lord Eldon granted an injunction defendant in possession ; and where the plaintiff in pos- to restrain the owner of an adjoining coal mine from session sought to restrain the defendant out of possession. working into the plaintiff's land ; and in Courthope Cases under the first head might again be divided v, Mapplesden (16 Ves. 289), Lord Eldon granted an into cases where the plaintiff claimed privity of title, injunction restrain cutting timber ; but he there and cases where the plaintiff claimed adversely. was collusion with a tenant, and the decision was