Mr. Fergusson also stated that he had never been called upon to give evidence on the question of domicil, although, as the testator's partner, he was intimately acquainted with his plans and intentions; and he stated that the testator had purchased considerable real property in India, and had bought a grave there in which he was afterwards buried. Hobhouse, Q.C., and H. M. Jackson, in support of the motion, referred, on the question of domicil, to Lord v. Colvin, 4 Drew. 366; Forbes v. Forbes, Kay, 341; Attorney-General v. Dunn, 6 M. & W. 511; Cockrell v. Cockrell, 4 W. R. 730. As to the rehearing, they said that Mr. Fergusson had done everything necessary to show that he claimed to act as executor; as soon as he had discovered that an order 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 elected to make the present application, which was less expensive than filing a bill. As he was not a party to the suit of Jopp v. Wood, it was necessary to apply to the Court for leave to present a petition of rehearing, Berry v. The Attorney-General, 2 Mac. & G. 16; Seton on Decrees, 1154 (3rd ed.). The order of the 5th of May, 1863, had been obtained by a side-wind. The only opposition to it was by the Attorney-General for payment of legacy-duty, and it was the real interest of the other parties to the petition to pay the legacy-duty, and to have the domicil of the infants declared to be Scotch. Selwyn, Q.C., and B. L. Chapman, in opposition to the motion, said that no new facts had been adduced by Mr. Fergusson to affect the question of domicil, except the purchase by the testator of land for a grave. As to the rehearing, the suit of Jopp v. Wood was dead, no funds remained in Court, and the undertaking of the solicitor to keep the moneys in hand until the present application was decided, did not affect the question. The cases of Berry v. The Attorney-General (loc. cit.); and which had been cited in support of the motion, were advanced in the character of executor. THE MASTER OF THE ROLLS said, that it was evident that all the material facts were not before the Court on the previous occasion. That the greatest difficulty with which the Court had to deal was to protect the interests of persons not before the Court, where all the parties before the Court were interested in bringing about the same result. He had quite understood, when the question of domicil was argued before him, that the interest of the petitioner, Elizabeth Smith, was opposed to that of the Crown; it now appeared that this was not the case: there was no defence to the motion, except a mere technicality, and his Honour would make an order in the terms of the motion, Mr. Fergusson undertaking to be bound by any order of the Court as to costs. Production of Documents-Solicitor's Lien. A solicitor who is a defendant in a suit cannot refuse to produce documents belonging to his client on the ground that he has a lien for costs, even when the plaintiffs in the suit claim under his client. This was the hearing, adjourned from Chambers, of a summons to consider the sufficiency of the affidavits of the defendant Cary, and of the defendants Messrs. Cox & Lord. The plaintiffs were, under an indenture dated the 3rd of May, 1863, the assignees of certain letters patent, dated the 5th of June, 1849, previously belonging to Messrs. Swayne & Bovill. By an indenture dated the 23rd of February, 1856, Messrs. Swayne & Bovill had assigned these letters patent, together with other property, to the defendants Cary, Greig, & Parry, upon trust, out of the proceeds, to pay a sum of 65001., and to procure certain shares in the Namur and Liège Railway Company, and to indemnify Cary, Greig, & Parry, against certain liabilities, and subject thereto in trust for Messrs. Swayne & Bovill. By another indenture dated the 4th of October, 1856, Messrs. Swayne & Bovill had assigned these letters patent, together with other property, to the defendants Cox & Lord, who had acted as their solicitors, to secure the moneys then due to them for costs or otherwise, amounting to upwards of 20002., and all future money advances. The plaintiffs charged that the defendants, or some of them, had been for some time in possession of the patent rights granted on the 5th of June, 1849, and had received various sums from licensees and infringers, and sought to charge the defendants with wilful default, as mortgagees in possession, in neglecting to collect the royalties from the licensees and to 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 argument. The defendants Cox & Lord had acted as solicitors of the defendant Cary, as well as solicitors of Messrs. Swayne & Bovill. The defendants Messrs. Cox & Lord, by their affidavit as to documents filed on the 14th of December, 1863, objected to produce any of thes cheduled documents, on the grounds-1st, that certain of them were in their hands as mortgagees; and 2nd, that the same 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 that they had a lien thereon for costs due to them as solicitors from Messrs. Swayne & Bovill and from Cary. 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. The plaintiffs claimed to have those documents produced for their inspection, and this question was, amongst others, reserved by the Chief Clerk for the consideration of the Judge. Druce and F. Harrison, for the plaintiffs, offered if necessary to procure the consent of Messrs. Swayne & Bovill. Selwyn, Q.C., and E. F. Smith, for Messrs. Cox & Lord, contended that they were not bound to produce any documents in their possession as solicitors for Messrs. Swayne & Bovill. [The Master of the Rolls referred to Hope v. Liddell, 20 Beav. 438; 7 De G. M. & G. 331, where a solicitor was, under a subpoena duces tecum, compelled to produce a document upon which he had a lien.] In that case the solicitor was called as a witness on behalf of a third party. In the present case the solicitors were required to give discovery as defendants, in a suit instituted by plaintiffs claiming under their debtor. A solicitor's lien had always been viewed with great favour by this Court : In Ex parte Shaw, Jac. 270, Lord Eldon refused to interfere with the lien of a solicitor upon documents which his client was required to produce, and made the client himself pay the costs and thus discharge the lien. This was further illustrated by Watson v. Lyon, 7 De G. M. & G. 288; The Master of the ROLLS said that he had always been anxious to preserve to solicitors the benefit of their lien, but there was a marked distinction between making the solicitor produce documents for the purposes of justice, and taking them altogether out of his possession. He was of opinion that the plaintiffs A demurrer ore tenus for want of a particular party is good, notwithstanding that a demurrer generally for want of parties has previously been overruled. Observations upon Pyle v. Price, 6 Ves. 779, and Attorney-General v. Corporation of Poole, 4 M. & C. 17. This suit came on upon demurrer. Mrs. Mary Keith, who died in 1855, was entitled to the beneficial interest in certain leasehold premises. But, in consequence of various dealings with the property, both during the life of Mrs. Keith and since her death, it had become uncertain who was the legal owner. This question, and others respecting the beneficial interest in the property, were the subject of a suit instituted in 1860 by Mr. and Mrs. Hairby ; and the effect of his Honour's decree in November, 1860, in that suit, was that Mr. Keith was ascertained to be legal owner, and he, Mrs. Brooks, and Mrs. Hairby to be entitled beneficially to the property in equal third shares. The plaintiff Pratt had been sub-lessee of these premises since 1855, and had, up to the time of the suit in 1860, paid his rent without dispute Mrs. Brooks, as the executrix of Mrs. Keith. After the decree in that suit, both Keith and Mrs. Brooks claimed the right to receive the plaintiff's rent; but the plaintiff, although he made various payments, to the amount of 801., to Mrs. Brooks, refused to make any payment to Keith; consequently Keith distrained for the arrears of rent since the decree, to the amount of 2257., and proceedings were taken in replevin. The present suit was instituted by the plaintiff for the purpose of having the action at law stayed, and an account taken, in which credit should be given to him for his payment (among other sums) of the 80% to Mrs. Brooks, as one of the persons declared by his Honour's decree to be beneficially entitled to the rents. The defendant Keith demurred to the bill, both for want of equity, and also because there were not "proper parties to the said bill;" but the demurrer did not name or describe the persons alleged to be proper parties. Toller, Q.C., and Mackeson, for the demurrer, contended, in support of the demurrer for want of parties, that Mrs. Brooks, and perhaps also Mrs. Hairby, were necessary parties to the bill, as it prayed an account of the rents due from the plaintiff, in which rents they were interested. It was not necessary, under the present practice, in cases where the names of the proper parties were upon the face of the bill, to name them in the demurrer. At all events, if the demurrer for want of parties should be overruled on account of this defect, the defendant might and would then demur ore tenus, Pyle v. Price, 6 Ves. 779; Attorney-General v. Corporation of Poole, 4 M. & Tripp's Chancery Forms, 45. Baily, Q.C., and Fischer, in support of the bill, argued 1st. That the demurrer ought so to have pointed out to the plaintiff the objection to his bill, as to have enabled him to amend by adding the proper parties. The fact of the uncertainty whether Mrs. Hairby, as well as Mrs. Brooks, was a necessary party, showed the propriety of such a rule. In a plea of abatement, which was analogous to a demurrer for want of parties, the party whose absence was complained of had to be sufficiently pointed out, Mitford, Pleadings in Chancery, 208 (5th ed.); Cockburn v. Thompson, 16 Ves. 321. 2nd. It would be needless for the plaintiff to demur ore tenus, unless his demurrer for want of parties should have been previously overruled. But in that case the demurrer ore tenus would be bad, being on the same point-viz., the want of parties, Bowman v. Lygon, 1 Anstruther 1. Toller, Q. C., in reply. KINDERSLEY, V.-C., said, that he should allow the demurrer for want of equity; leave, however, would be given to the plaintiff to amend. But the demurrer for want of parties, which, at any rate, deviated from the usual form, must be overruled. A dictum by Lord Cottenham, in Attorney-General v. Corporation of Poole (loc. cit.), had been cited in support of it. But that dictum seemed to rest upon an expression of doubt by Lord Eldon, in Pyle v. Price (loc. cit.), whether it were always necessary to state the parties. Now, since the doubt, as reported, seemed to have reference to the case of a demurrer ore tenus, in which it was impossible to avoid stating the parties, there must be some inaccuracy in the report of Lord Eldon's opinion. It was strange that there was no direct authority on this point. But, certainly, such a dictum of Lord Cottenham's, considering the grounds upon which it apparently rested, could not outweigh the clear opinion expressed by Lord Redesdale, to the effect, that a demurrer for want of parties must either name, or so point out the proper parties as to enable the plaintiff to amend his bill by adding them. Moreover, this rule had been always adopted in practice. But the fact that the demurrer for want of proper parties generally was overruled, did not prevent the defendant from demurring ore tenus, on the ground specifically that Mrs. Brooks had not been made a party. Such a demurrer ore tenus was not on the same point as the original demurrer, and therefore the case of Bowman v. Lygon (loc. cit.) did not apply. The question of costs was settled by arrangement between the parties. Will-"Born and living"-En ventre. The words "born and living" include children en ventre. Sarah Blasson by her will gave stock to trustees upon trust to accumulate the dividends thereof, and when and so soon as the youngest of the children of her within-named nephew and nieces who should be born and living at the time of her decease should arrive at the age of twenty-one years; then to divide the said stock, with its accumulations, among all such children of her said nephew and nieces as should be then living, share and share alike. Of the children of the said nephew and nieces some were born before the death of the testatrix, two were en ventre at that time, and some were begotten afterwards. One of the children en ventre at the death of the testatrix was still an infant. The bill was filed by the trustees, to have the right of the cestuis-que-trust determined. J. Hinde Palmer, Q.C., and Gill for the trustees. Glasse, Q.C., and Grenside, for the children born before the death of the testatrix, contended that they alone were entitled, and that the stock might now be distributed. Baily, Q.C., and Humphrey, for the children en ventre at the death of the testatrix, contended that they also were entitled, and that the stock ought to be distributed when all the children begotten before the death of the testatrix should have attained twenty-one. Toller, Q.C., and Herbert Smith, for the children begotten after the death of the testatrix, contended that all the children were entitled. The following cases were cited as to the effect of the words "living," Bennett v. Honywood, 2 Amb. 708; Doe v. Clark, 2 H. Bl. 399; "born," Trower v. Butts, 1 Sim. & St. 181; Scott v. Earl of Scarborough, 1 Bea. 154; "begotten and born," Whitelock v. Heddon, 1 Bos. & Pull. 243. KINDERSLEY, V.-C., said that it was clear that the word "such" was connected grammatically with the word "as," and did not refer to the preceding sentence; and therefore the expression "such children as should be then living," included all the children living at the period of distribution; that is to say, at the time when all the children who should have been "born and living" at the time of the testatrix's death should have attained twenty-one. If the question were res integra, he should have no hesitation in deciding that the word "born" did not include children en ventre, but Sir John Leach had decided forty years ago, in Trower v. Butts, that the word did include such children. It was true that the case of Whitelock v. Heddon, to which Sir John Leach referred in his judgment, as deciding that the words "begotten and born" included children en ventre, did not in fact turn at all on the meaning of those words; but, nevertheless, that judgment had not been disapproved of either by subsequent Judges or by text-books, and his Honour conceived himself bound to follow it. The period of distribution would therefore be when all the children begotten during the life of the testatrix should have attained twenty-one. Note. See 2 Jarman on Wills, 171 (3rd ed.). Trustees-Trustee Relief Act, 10 & 11 Vict. c. 96-Payment into Court without giving Notice of Adverse Claim. When there are conflicting claims to a trust fund, and the trustees have paid it into Court to the account of one of the claimants, without giving, at the same time, notice to the Court of the adverse claims, payment of the fund to the person in whose name it stands ordered by the Court, but without prejudice to any question as between the trustees and the adverse claimants. Morgan Jenkins, by his will dated the 9th of September, 1843, gave to Thomas Windsor (since deceased), Benjamin Evans, and John Parry, whom he appointed executors, all his real and personal property on trust for sale. The testator gave to his eldest son, Thomas Jenkins, an annuity of 251. for life, and directed his executors to "invest or appropriate so much 31. per cent. Consolidated Annuities, or on real securities in England or Wales, as should be sufficient to yield the annual sun of 251. as and for a fund for the payment of the said annuity." In the meantime, the annuity On the de was to be paid out of the personal estate. cease of Thomas Jenkins, the stocks, funds, and securities constituting the fund for its payment, were to ge to the children of the annuitant. There was a residuary bequest in favour of the testator's wife and younger children. The testator died in May, 1849, and his executors duly proved his will. Thomas Jenkins died in January, 1850, leaving two children, viz., the petitioner, Evan Jenkins, and Thomas Morgan Jenkins, who is still an infant. The trustees had, in September, 1850, invested 7007. out of the testator's effects in their hands, on real securities at 51. per cent. interest; and from about February, 1852, they paid the annuity of 251., for the maintenance of the two children of Thomas, out of the interest of this mortgage security, carrying the surplus interest to the general trust account of the testator's estate. But when, in April, 1862, the petitioner, Evan Jenkins, came of age, a question arose, as between him and the residuary legatees, whether this investment of the 7001. had ever been definitely appropriated for the satisfaction of the annuity of 251. Evan Jenkins claimed, as one of the two children of Thomas, a moiety, both of the principal sum of 700%, and of the surplus income from it; but the residuary legatees contended that he was entitled only to a moiety of so much of the principal sum as actually produced the amount of the annuity of 251. In consequence of this dispute, the two surviving trustees paid into the bank, on the 5th of June, 1863, 368l. 6s. 9d., which was the amount claimed by Evan Jenkins, to an account entitled "In the matter of the trusts of Evan Jenkins' portion of a trust fund representing and cor responding to the life annuity of Thomas Jenkins, deceased, under the will of Morgan Jenkins, deceased.” The present petition was presented by Evan Jenkins, have this sum paid out to him. under the Trustee Relief Act (10 & 11 Vict. c. 96), to Bevir, in support of the petition, cited, Lewis Morris, for the residuary legatee, referred to Jeremy, for the trustees. KINDERSLEY, V.-C., said that no investment or ap propriation appeared to have been made by the trustees to answer the annuity of 251. It was manifest that the investment of the 7007. on mortgage was not such an appropriation; for the income from it was 351., and not 25l. only. The trustees, however, had, under a misapprehension, paid the moiety of that fund into Court, to the account of the petitioner's portion of the trust fund, and had omitted, at the time, to give the Court notice that the right of the petitioner to take the whole of that moiety was disputed. Under these circumstances, the trustees must be deemed to have taken the responsibility on themselves of making out the petitioner's right; and his Honour would there fore order the payment of this sum of 3681. 6s. Id. to him, but without prejudice to any question which might arise between the trustees and the residuary legatees. The trustees would have their costs of the petition; the residuary legatees would have no costs. Kindersley, V.-C., 16 Nov. 1863, 23 JAN. 1864. Cases under the second head might also be divided into cases in which the defendant claimed no title, and cases where the defendant did claim title. First. Where the plaintiff, being out of possession 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 LOWNDES v. BETTLE. injuctions. Injunction-Trespass. A person in possession of an estate may obtain an injunction to restrain a trespasser claiming title from cutting trees and turf. A testator in 1768 devised his estate to his heir-atlaw, but if no heir-at-law could be found, he declared that William Lowndes should be his heir. The testator died in 1772; and in 1773 William Lowndes filed a bill to have his right so ascertained. No heirat-law could be found, and in 1783 a decree was made establishing the will, and declaring that the estate was to be considered as belonging to William Lowndes, and that he was to be put in possession. The estate continued in his family ever since, and the plaintiff was one of his descendants, and the present owner. The defendant claimed to be heir-at-law of the testator, and in September, 1861, and since, had sent notices to the plaintiff threatening to come on the estate, and to cut trees and turf, in order, as he said, to keep up his rights, and to bar the Statute of Limitations. On a motion for an interim injunction the defendant did not appear, and the injunction was granted; the case now came on to have the injunction made perpetual. Glasse, Q. C., and Bristowe, for the plaintiff. T. H. Terrell, for the defendant, contended that the Court had no jurisdiction to grant injunctions in cases of trespass. Glasse, Q. C., in reply. KINDERSLEY, V.-C., said that from Lord Thurlow's time to the present a continual change had been taking place in the course of the Court with regard to injunctions to restrain spoliation. There had been formerly a wide distinction between waste, or spoliation, by one having privity of title, and trespass or spoliation by one claiming adversely, or making no claim whatever. This distinction had been much lessened, but still existed. There was also a distinction as to whether the Court was supporting possession or interfering with it. The cases might be conveniently arranged under two heads : namely, where the plaintiff out of possession sought to restrain the defendant in possession; and where the plaintiff in possession sought to restrain the defendant out of possession. Cases under the first head might again be divided into cases where the plaintiff claimed privity of title, and cases where the plaintiff claimed adversely. Secondly. Where the plaintiff being out of possession sought to restrain the defendant in possession, and claimed adversely. The earliest case was Hamilton v. Worsefield (10 Ves. 290, n.), before Lord Thurlow, in 1786, in which an injunction was granted, but this case could not be relied on, as it was doubtful whether there was no collusion with the tenants, and therefore waste properly so called. In Pilsworth v. Hopton (6 Ves. 51), in 1801, Lord Eldon refused an injunction, but in Crockford v. Alexander (15 Ves. 138), in 1808, while granting an injunction under the peculiar circumstances of the case, he drew a distinction between trespass and waste. In Jones v. Jones (3 Mer. 161), in 1817, Sir William Grant said, that he did not see any very good reason why the Court should not protect real estate pending a suit, but nevertheless refused an injunction partly on the ground of delay. In Haigh v. Jagger (2 Coll. C. C. 231), in 1845, Sir J. L. Knight Bruce said, that he was not convinced that the Court could not restrain the party in possession from stripping the estate of its timber, pulling down the mansion house, &c., for this Court did not treat questions of destructive damage to property then exactly as it did forty or fifty years before. The injunction, however, was refused partly on the ground of delay. In Davenport v. Davenport (7 Hare, 217), in 1849, Sir James Wigram allowed a demurrer, for want of equity to a bill praying an injunction, and stated, that the cases in which the jurisdiction was exercised in restraining trespass were cases of peculiar description, and that the Court was always trying to get out of a technical rule. He, however, expressed his surprise that the law should be in that state. And finally, Sir W. P. Wood, in Neale v. Cripps (4 K. & J. 472), in 1858, granted an injunction to restrain the defendants in possession from stripping an estate of timber, upon a motion by a plaintiff claiming under a title at law. His Honour also referred to Earl of Fingal v. Blake (2 Moll. 50), and Lloyd v. Lord Trimleston (2 Moll. 81). Thirdly. Where the plaintiff in possession sought to restrain the defendant out of possession, the defendant claiming no title. In Mogg v. Mogg (4 Dick. 670), in 1789, and Mortimer v. Cottrell (2 Cox, 205), in 1789, an injunction was refused; but in Mitchell v. Daws (6 Ves. 147), in 1801, Lord Eldon granted an injunction to restrain the owner of an adjoining coal mine from working into the plaintiff's land; and in Courthope v. Mapplesden (16 Ves. 289), Lord Eldon granted an injunction to restrain cutting timber; but here there was collusion with a tenant, and the decision was |